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PER CURIAM. Appeal dismissed on motion of appellee and consent of appellant.

WOODRUFF, Circuit Judge. The property proceeded against was seized by the officers of the United States, and, on information filed, was condemned, in the district court, as forfeited, because it was introduced into this country without the payment of duty. [Oase unreported.] After condemnation, H. C. Whitely and F. S. Esmond each applied to the district court for an order adjudging him to be the informer entitled to share in the proceeds of the condemnation. Act March 2, 1867; 14 Stat 546, § 1. The district court, on a contest between, the two .claimants, decided and adjudged that neither of them was the first informer, nor entitled, as such, to share in the proceeds, and, there being no other claimant, the court decided that H. C. Whitely, as seizing officer, was entitled to share in the proceeds. Thereupon, a writ of error was procured and allowed, for the purpose of correcting what the said Esmond alleges to be error in the said order, to his prejudice. Without considering the objection that no writ of error will lie for the correction of a proceeding of this kind, or the objection that, if it will lie, it is not in proper form, it must suffice to say, that a writ of error brings to the consideration of this court questions of law only. The complaint here is, that, upon questions of fact, strenuously contested, and in relation to which there was conflict of testimony, the district court came to an erroneous conclusion. It is quite immaterial to this party alleging error, whether the decision that Whitely was not the first informer was correct or not; and, if Esmond was not the first informer, then it is immaterial to him whether Whitely was or was not entitled as seizing officer. Esmond, in either case, is not aggrieved by the decision or adjudication. If he was not the first informer, he has no possible interest in the matter, and is not aggrieved. The district court found, as a fact, upon the evidence, that Esmond was not the first informer. That finding of fact is not the subject of review by writ of error, when the record does not show that any rules of law were violated, or any erroneous construction of the statute was applied to the facts proved. The circumstance, that the proofs were, by order of the court, taken before a commissioner, and were reported with his opinion in favor of Esmond, does not affect this question. The district court was not bound, by law, to adopt the opinion of the commissioner as conclusive. It had power to, and did, look into the conflicting proofs reported by the commissioner, and, on finding, as a fact, that Esmond was not the first informer, made an adjudication, which, upon that finding, was a necessary legal result, namely, that he was not entitled to share in the proceeds of the forfeited property. I find no error of law which calls for any reversal of the order. Let it be affirmed.

Opinion for the Court filed by Circuit Judge WILLIAMS. Dissenting opinion filed by Circuit Judge SENTELLE. STEPHEN F. WILLIAMS, Circuit Judge: Petitioner BellSouth Corporation challenges the constitutionality of Section 274 of the Telecommunications Act of 1996 (the “Act”), 47 U.S.C. § 274, and of the Federal Communications Commission’s order implementing that provision. Section 274 limits the ability of Bell operating companies (“BOCs”) to provide “electronic publishing,” a category that includes disseminating news articles, offering literary material, and providing services similar to the Lexis/Nexis and Westlaw databases. BellSouth says § 274 is an unconstitutional bill of attainder, stressing the fact that the subjects of its restrictions, the BOCs, are singled out by name. Bell-South also complains that § 274 impermissibly abridges its First Amendment rights of free expression. We reject both challenges. * * * The story behind the Telecommunications Act of 1996 has often been told, although electronic publishing restrictions have usually amounted to little more than a subplot. In 1982 a consent decree was entered in settlement of the government’s 1974 antitrust suit against AT&T. That decree, as modified by the district court, became known as the “Modification of Final Judgment,” or “MFJ.” See United States v. American Tel. & Tel. Co., 552 F.Supp. 131 (D.D.C.1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983). The MFJ required AT&T to divest itself of its local exchange monopolies. Under the reorganization plan approved by the district court, the twenty BOCs eventually named in the 1996 Act were spun off from AT&T and grouped into seven regional Bell operating companies, or “RBOCs” (now five thanks to mergers), of which BellSouth is one. The MFJ initially prohibited the BOCs from providing “information services,” defined to include electronic publishing. The prohibition rested on two concerns commonly voiced about regulated monopolists operating in fields adjacent to their monopolies. First, to the extent that the monopolist’s good or service is an input for the adjacent industry, the monopolist may offer its own enterprise discriminatory advantages, in this case “favorable access to the local network.” 552 F.Supp. at 189. Second, the monopolist may use monopoly revenues to subsidize its associated enterprise. Id. In a “triennial review” process established by the decree, the Department of Justice moved to lift the information services restrictions, and no party to the decree opposed the motion. The district court ultimately did lift them. United States v. Western Electric Co., 767 F.Supp. 308 (D.D.C.1991), aff'd, 993 F.2d 1572 (D.C.Cir.1993). We will return later to the analysis supporting that result, which Bell-South says helps its constitutional case against § 274. The 1996 Act rescinded the MFJ, see Pub.L. No. 104-104, § 601, 110 Stat. 143 (1996), and changed the entire telecommunications landscape. Several key provisions of the Act apply to incumbent local exchange carriers generally, such as 47 U.S.C. § 251, requiring them to offer nondiscriminatory access and interconnection to local competitors. Sections 271 through 276 of the Act, however, entitled “Special Provisions Concerning Bell Operating Companies,” are applicable to the BOCs and their affiliates alone. For example, § 271 establishes requirements that must be met before the BOCs can break into the long distance, or “interLATA,” market, see SBC Communications, Inc. v. FCC, 138 F.3d 410 (D.C.Cir.1998); § 273 bars the BOCs from manufacturing and selling telecommunications equipment until they have received authorization to enter the interLATA market; and § 275 prohibits BOCs (other than Ameriteeh) from providing alarm monitoring services for five years, see Alarm Industry Communications Committee v. FCC, 131 F.3d 1066, 1067 (D.C.Cir.1997). In general these provisions simply maintained, and in most cases loosened, various restrictions to which the BOCs were already subject under the MFJ. By contrast, the provision at issue here-§ 274-reimposed on the BOCs some of the information services restrictions that had been lifted in 1991. BellSouth challenges only that provision and the FCC order of implementation. Section 274 provides: No Bell operating company or any affiliate may engage in the provision of electronic publishing that is disseminated by means of such Bell operating company’s or any of its affiliates’ basic telephone service, except that nothing in this section shall prohibit a separated affiliate or electronic publishing joint venture operated in accordance with this section from engaging in the provision of electronic publishing. 47 U.S.C. § 274(a). Section 274’s restrictions expire on February 8, 2000, four years from the date of the Act’s passage. § 274(g)(2). As is evident from its text, § 274 provides two pathways for BOCs wishing to enter electronic publishing: the “separated affiliate” route and the “joint venture” route. The statute defines a separated affiliate as “a corporation under common ownership or control with a Bell operating company that does not own or control a Bell operating company and is not owned or controlled by a Bell operating company.” 47 U.S.C. § 274(i)(9). An “electronic publishing joint venture” is a “joint venture owned by a Bell operating company or affiliate that engages in the provision of electronic publishing which is disseminated by means of such Bell operating company’s or any of its affiliates’ basic telephone service.” 47 U.S.C. § 274(i)(5). Section 274 imposes several structural requirements on both separated affiliates and electronic publishing joint ven tures. See generally 47 U.S.C. § 274(b). For example, each such entity must maintain books, records, and accounts separately from the BOC with which it is affiliated, § 274(b)(1), may have “no officers, directors, and employees in common” with a BOC, § 274(b)(5)(A), and may “own no property in common,” § 274(b)(5)(B). The Act defines “electronic publishing” broadly as the dissemination, provision, publication, or sale to an unaffiliated entity or person, of any one or. more of the following: news (including sports); entertainment (other than interactive games); business, financial, legal, consumer, or credit materials; editorials, columns, or features; advertising; photos or images; archival or research material; legal notices or public records; scientific, educational, instructional, technical, professional, trade, or other literary materials; or other like or similar information. 47 U.S.C. § 274(h)(1). It then exempts several types of services, including data processing, voice messaging, and video programming. 47 U.S.C. § 274(h)(2). BellSouth, of course, is not a BOC but an RBOC. Yet the government rightly refrains from raising a standing defense on that ground. The injury BellSouth suffered as the sole shareholder of two affected corporations (South Central Bell Telephone Company and Southern Bell Telephone and Telegraph Company) is clearly enough to give it Article III standing. See Franchise Tax Board of California v. Alcan Aluminium Ltd., 493 U.S. 331, 336, 110 S.Ct. 661, 663-664, 107 L.Ed.2d 696 (1990). Besides, as an affiliate of two BOCs, § 274(i)(1), BellSouth is itself affected; it can engage in electronic publishing only by maintaining structural separation from its BOCs. Bill of Attainder Challenge We turn first to BellSouth’s challenge under Article I, section 9, clause 3 of the Constitution, which says that “[n]o Bill of Attainder or ex post facto Law shall be passed” by Congress, For the framers of the Constitution the term “bills of attainder” carried a specific meaning: it referred to parliamentary acts sentencing named persons to death without the benefit of a judicial trial. As early as 1810, however, in Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L.Ed. 162 (1810), Chief Justice Marshall noted in dictum that the prohibition on bills of attainder ought to extend to legislation subjecting specified persons to penalties short of death—what the framers called “bills of pains and penalties.” Id. at 138, 3 L.Ed. 162; United States v. Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 1714, 14 L.Ed.2d 484 (1965). Later in the nineteenth century the Supreme Court confirmed that the legislative punishments foreclosed by the Bill of Attainder Clause include bills of pains and penalties. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 320, 323, 18 L.Ed. 356 (1866). Moreover, the Court has recognized that not all bills of attainder expressly name their targets; some simply describe them. Brown, 381 U.S. at 442, 85 S.Ct. at 1711-12. In sum, the Court has developed a potentially sweeping definition of forbidden attainders, holding that “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial áre bills of attainder prohibited by the Constitution.” United States v. Lovett, 328, U.S. 303, 315-16, 106 Ct.Cl. 856, 1079, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). The result is a prohibition triggered when a legislative act meets two tests—first, that it apply with specificity, and second, that it impose punishment. Even classic attainders seem not only to have specified individuals but also classes-defined as the confederates of a named traitor, as in the case of the attainder against the Earl of Kildare and his associates during the reign of Henry VIII. See Cummings, 71 U.S. at 323-24, 18 L.ED. 356. But the Supreme Court watered down the specificity requirement a bit more when it invalidated two post-Civil War enactments targeting all persons who could not truthfully swear that they had been loyal to the Union during the war. See Cummings; Ex parte Garland, 71 U.S. (4 Wall.) 333,18 L.Ed. 366 (1866). And in Lovett it said generally that specificity is shown if the law applies to “easily ascertain able members of a group.” 328 U.S. at 315, 66 S.Ct. at 1079. Since virtually all legislation operates by identifying the characteristics of the class to be benefited or burdened, it is not clear that the specificity requirement retains any real bite. In „any event, it is obviously met here, since § 274’s requirements apply uniquely to the twenty BOCs identified by name in the Act. We assume; as do the parties, that the Bill of Attainder Clause protects corporations as well as individuals. Although the Supreme Court has yet to address the question directly, it has suggested as much in dictum, see Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239 n. 9, 115 S.Ct. 1447, 1463 n. 9, 131 L.Ed.2d 328 (1995) (indicating that Bill of Attainder Clause applies to laws that burden “a single individual or firm”), and comparable constitutional rights have been extended to legal “persons” taking the corporate form. See, e.g., Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 881 n. 9, 105 S.Ct. 1676, 1683 n. 9, 84 L.Ed.2d 751 (1985) (equal protection); United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (double jeopardy). The clause’s coverage clearly seems to include at least closely held corporations, where an attainder would fall on a narrowly circumscribed, easily identified group of flesh-and-blood people. Given the parties’ shared assumption, we will not explore the issue further. At times BellSouth comes close to arguing that the specification requirement ought to be the end of the matter. On this view, the Bill of Attainder Clause bars Congress from singling out a specified class of persons for burdens of any kind, regardless of whether those burdens can be viewed as punishments in any ordinary sense of the term. This was the theme of a famous student essay, Note, The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause, 72 Yale L.J. 330 (1962), and traces of the same approach can be found in the Supreme Court’s most extensive discussion (and most expansive application) of the clause, United States v. Brown, 381 U.S. 437, 442, 85 S.Ct. 1707, 1711-12, 14. L.Ed.2d 484 (1965). For example, Brown said in a footnote that “a legislature can provide that persons possessing certain characteristics must abstain from certain activities, but must leave to other tribunals the task of deciding who possesses those characteristics.” Id. at 454 n. 29, 85 S.Ct. at 1718 n. 29 (emphasis added). And Brown’s explanation of the clause “as an implementation of the separation of powers, a general safeguard against legislative exencise of the judicial function, or more simply-trial by legislature,” id. at 442, 85 S.Ct. at 1711-12, certainly lent itself to sweeping application. Nonetheless, even Brown seemed at times to limit itself to punishments, saying, for example, that the clause “reflected the Framers’ belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.” Id. at 445, 85 S.Ct. at 1713. Such a limitation is practically indispensable: given the demise of the requirement that a forbidden attainder fall on named individuals, and the elusive character of. Brown’s own effort to articulate a coherent specificity test to replace that requirement, see 381 U.S. at 455 n. 29, 85 S.Ct. at 1718 n. 29, a definition of attainder that encompassed any burden imposed on specified individuals or groups would cut a broad swath, mowing down much of the Supreme Court’s equal protection jurisprudence at a single stroke. In any event, whatever Brown’s potential for diluting the punishment requirement, the Supreme Court .has since taken that requirement seriously. It made this emphatically clear in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), where the law at issue burdened a single person.' Despite the statute’s surgical focus on a sole individual, the Court held that “the mere specificity of a law does not call into play the Bill of Attain der Clause,” id. at 471 n. 33, 97 S.Ct. at 2805 n. 33, and indeed that Congress had on that occasion singled out “a legitimate class of one,” id. at 472, 97 S.Ct. at 2805. It insisted that the burden must be a punishment to qualify as a bill of attainder, and considered three questions in determining whether it was. Id. at 478-84, 97 S.Ct. at 2808-13. Despite Chief Justice Burger’s suggestion that the Nixon precedent itself would become a “class of one,” id. at 544-45, 97 S.Ct. at 2841 (Burger, C.J., dissenting), the Court later formalized the punishment inquiry into a three-part test, asking (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes; and (3) whether the legislative record evinces a congressional intent to punish. Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 852, 104 S.Ct. 3348, 3355, 82 L.Ed.2d 632 (1984) (citations and internal quotation marks omitted). Unlike our dissenting colleague, Dissent at 3, 5, 6, we see no warrant in the precedents for treating Congress’s specification of the BOCs by name as a material element in the punishment analysis. Cf. Brown, 381 U.S. at 461, 85 S.Ct. at 1721 (describing supposed contrast between naming and mere specification as a “distinction! ] without a difference”). We take up each of the three factors in turn. To begin with, § 274’s restrictions are nothing like the classic attainders known to the framers. As mentioned above, bills of attainder at common law generally entailed execution, although this was typically coupled with other punishments, such as “corruption of blood,” which prevented the attainted party’s heirs from inheriting his property. See Brown, 381 U.S. at 441, 85 S.Ct. at 1711. Bills of pains and penalties, also forbidden by the clause, “commonly imposed imprisonment, banishment, and the punitive confiscation of property.” Selective Service System, 468 U.S. at 852, 104 S.Ct. at 3355. The case becomes closer when we move from historic antecedents to burdens later found by the Supreme Court to rank as punishments, which have included “legislative bars to participation by individuals or groups in specific employments or professions.” Id. at 852, 104 S.Ct. at 3355. Indeed, the Court’s four major decisions invalidating statutes on Bill of Attainder Clause grounds have all involved legislation preventing specific classes of persons from pursuing certain occupations. Those four cases came in two pairs. The first pair involved restrictions imposed immediately after the Civil War on those who had sided with the South, see Cummings (striking down amendments to Missouri constitution denying right to vote, hold office, teach, or serve as trustee for religious organization to persons who aided or sympathized with the Confederacy), and Garland (striking down federal law requiring attorneys to swear oath that they had never assisted Confederacy as condition of admission to practice in federal courts). The second pair involved restrictions on Communist Party members during the Cold War, see Lovett (invalidating law cutting off payment of salaries to three named federal employees who were Party members), and Broum (invalidating law making it a crime for members of Party to serve as officers or employees of labor unions). Although a statute imposing structural separations on corporations seeking to engage in specific types of commercial activity may be analogous to such traditional employ ment debarments, the analogy is very loose indeed. Even if we ignore the BOCs’ freedom under § 274 to enter electronic publishing through structurally separated affiliates, the section is nothing more than a line-of-business restriction, comparable for example to the Glass-Steagall Act’s limitation on the entry of commercial banks into investment banking, 12 U.S.C. §§ 24 (Seventh), 78, or to the cross-ownership restrictions on broadcasters upheld in FCC v. National Citizens Committee for Broadcasting, 486 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978). Although membership in the class of commercial banks or broadcasting firms is easy enough to ascertain, no one has suggested that those laws work an unconstitutional attainder. Indeed the Supreme Court in Brown strongly suggested that line-of-business restrictions pose no bill of attainder concerns, distinguishing the statute at issue there, which barred Communists from high office in labor unions, from § 32 of the Banking Act of 1933 (now codified at 12 U.S.C. § 78), a conflict-of-interest statute preventing employees of securities underwriting firms from working for banks that belong to the Federal Reserve System. Brown, 381 U.S. at 453-55, 85 S.Ct. at 1717-18; see also Board of Governors v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408 (1947) (upholding § 32 of Banking Act, though without addressing bill of attainder issue). Brawn reasoned that each of the invalidated employment prohibitions “inflict[ed] its deprivation upon the members of a political group thought to present a threat to the national security,” 381 U.S. at 453, 85 S.Ct. at 1717, and further contrasted the conflict-of-interest statute as “ineorporat[ing] no judgment censuring or condemning any man or group of men.” Id. at 453-54, 85 S.Ct. at 1717. It is apparent—and will be more so when we examine legislative purpose—that § 274 falls on the nonpunitive side of those lines. Placing § 274-among the burdens historically forbidden as attainders seems especially dubious because it does not bar the BOCs from electronic publishing but simply ■ requires structural separation. As counsel for BellSouth acknowledged at oral argument, the separated affiliate mechanism permits his client to establish a wholly-owned subsidiary to pursue electronic publishing. This subsidiary could disseminate materials over the telephone lines of BellSouth’s BOC subsidiaries, as long as it was kept separate from them in the ways prescribed by. § 274(b). Indeed, BellSouth itself could enter the electronic publishing business provided it observed the norms of separation from its BOCs. In short, § 274 leaves all the investors with stakes in the BOCs (i.e., the shareholders of the RBOCs) free to . pursue their collective electronic publishing ends, and to aggregate their capital to achieve those ends, subject only to structural separation requirements. While structural separation is hardly costless, neither does it remotely approach the disabilities that have traditionally marked forbidden attainders. The second criterion asks whether. the challenged legislation, considering the type and severity of the burdens it imposes, can reasonably be said to further nonpunitive legislative purposes. This factor appears to be the most important of the three. See Siegel v. Lyng, 851 F.2d 412, 418 (D.C.Cir.1988) (“The line of Supreme Court law on the Bill of Attainder Clause indicates that legislation will survive Bill of Attainder attack if the statute furthers nonpunitive legislative purposes.”). On the one hand, where an enactment falls outside the historical definition of punishment, the second factor prevents Congress from circumventing the clause by cooking up newfangled ways to punish disfavored individuals or groups, Selective Service System, 468 U.S. at 853-54, 104 S.Ct. at 3355. On the other hand, “[e]ven measures historically associated with punishment-such as permanent exclusion from an occupation-have been otherwise regarded when the nonpunitive aims of an apparently prophylactic measure have seemed sufficiently clear and convincing.” Laurence H. Tribe, American Constitutional Law, § 10-5, at 655 (2d ed.1988). In fact, apart .from its specific targeting aspect, we find that § 274 has the earmarks of a rather conventional response to commonly perceived, risks of anticompetitive behavior. We have long recognized that structural separation is “a permissible regulatory tool” for ensuring “that no cross-subsidization or unfair competitive practices occur.” Computer and Communications Industry Ass’n v. FCC, 693 F.2d 198, 219 (D.C.Cir.1982). We return shortly to the realism of those risks, but pause here to note that BellSouth’s claim of punitive purpose is somewhat undermined by § 274’s placement in an Act that as a whole relieves the BOCs of several of the burdens imposed by the MFJ, particularly by prescribing in § 271 a method whereby the BOCs can achieve a long-sought-after presence in the long-distance market. BellSouth advances two arguments in support of its claim that Congress cannot reasonably be said to have enacted § 274 for nonpunitive purposes. First, it says the court’s 1991 removal of the information services prohibition from the MFJ—based on a finding that its removal could reasonably be found to advance the public interest (balancing the risk of BOC discrimination against competing information services ventures with the competitive benefits of BOC entry)— shows that Congress in 1996 had no plausible economic basis for reimposing electronic publishing restrictions. Second, BellSouth points to other local exchange carriers who are not covered by § 274’s proscriptions. To the extent the BOCs pose any anticompetitive threat, says BellSouth, then so do the excluded firms, and their exclusion demonstrates that Congress’s real aim was to punish the BOCs. As we said earlier, the information services ban was lifted from the MFJ at the behest of the Department of Justice, which had insisted on the ban when the MFJ was being negotiated. Circumstances had changed, the government argued; the information services market had become more competitive, and the BOCs’ ability to discriminate and cross-subsidize had consequently decreased. The district court initially rejected the government’s proposal, United States v. Western Electric Co., 673 F.Supp. 525, 587-97 (D.D.C.1987), but we reversed, saying that the court had used too stringent a standard to evaluate the government’s motion, which no party to the consent decree had opposed. United States v. Western Electric Co., 900 F.2d 283, 292 (D.C.Cir.1990). On remand the district court lifted the information services ban. United States v. Western Electric Co., 767 F.Supp. 308 (D.D.C.1991). We affirmed, noting that under the applicable “public interest” standard “the record before the court was such that any district court rejection of the proposed modification would have been reversible error.” United States v. Western Electric Co., 993 F.2d 1572, 1577-78 (D.C.Cir.1993). That record, we said, contained “persuasive evidence that, despite their local monopoly power, the BOCs will be unable to discriminate against competing information service providers.” Id. at 1579-80. We also concluded that there was powerful evidence to counter any suggestion that the BOCs would be able to use their price-regulated monopolies to subsidize their entry into information services. Id. at 1580-81. Obviously Congress’s reading of the evidence in 1996 was different from the one arrived at by the Department of Justice in 1987—or by this court in 1993 for that matter. It does .not follow from these conflicts between branches, however, that Congress cannot rationally be said to have pursued nonpunitive purposes in enacting § 274. Certainly our triennial review decisions never suggested that the risks of anticompetitive conduct were so feeble that no one could reasonably assert them except as a smokescreen for some invidious purpose (much less for the specific invidious purpose of “punishing” the BOCs). And we note that § 274 is less severe than the analogous pre-1991 MFJ provision along several dimensions: it applies only to electronic publishing rather than to information services as a whole, it expires after five years rather than continuing indefinitely, and it mandates structural separation, rather than complete exclusion. BellSouth complains that this reading of the second factor reduces it to little more than a rational basis test, the most anemic form of constitutional scrutiny. If this were strictly true, of course, the Bill of Attainder Clause (as applied to non-suspect classes such as the BOCs) would do nothing more than duplicate the Equal Protection Clause. But the Supreme Court’s attainder inquiry is in fact more exacting than , a rational basis test, because it demands purposes that are not merely reasonable but nonpunitive. Punitive - purposes, however rational, don’t count. BellSouth’s second argument focuses on the fact that § 271 does not cover several large non-BOC local exchange carriers, in particular GTE Corporation. GTE, which was never part of the AT&T system, supplies about 18.4 million access lines in 27 states; by comparison, BellSouth supplies about 24.5 million access lines in nine states. ‘ 1996 FCC Statistics of Communications Common Carriers 21 (1997). Although its operations are generally rural, as of 1993 “GTE controlled] local exchange service in the entire state of Hawaii as well as in large portions of the Tampa and Los Angeles markets.” United States v. Western Electric Co., 993 F.2d at 1579. Other non-BOC carriers, such as Southern New England Telephone with about 2.1 million access lines in Connecticut, are also not covered by § 274. 1996 FCC Statistics of Communications Common' Carriers 21 (1997). From this selectivity—which BellSouth labels under-inclusiveness—Bell-South would have us draw an inference of punitive purpose. But the differential treatment of the BOCs and non-BOCs is neither suggestive of punitive purpose nor particularly suspicious. Because the BOCs’ facilities are generally less dispersed than GTE’s, they can exercise bottleneck control over both ends of a telephone call in a higher fraction of cases than can GTE. The BOCs thus enjoy a materially greater opportunity to shift costs from their electronic publishing pursuits to their rate-regulated local exchange ventures. In addition, because GTE (unlike the BOCs) is not the dominant provider of local exchange service in any state except Hawaii, state regulators can use the costs of its local competitors as benchmarks against which to measure whether it is engaging in improper cost allocation. Thus the distinction drawn by Congress seems quite understandable without resort to inferences of punitive purpose. The third device for identifying a punishment focuses on legislative intent, and in practice appears to differ from the second only in inviting a journey through legislative history. On this point we can be brief. Bell-South simply has not come forward with the kind of “unmistakable evidence of punitive intent which ... is required before a Congressional enactment of this kind may be struck down” as an attainder. Selective Service System, 468 U.S. at 855-56 n. 15, 104 S.Ct. at 3357 n. 15 (quoting Flemming v. Nestor, 363 U.S. 603, 619, 80 S.Ct. 1367, 1377, 4 L.Ed.2d 1435 (I960)). Aside from a few scattered remarks referring to anticompetitive abuses allegedly committed by the BOCs in the past, BellSouth has provided no legislative history even touching on the purposes behind § 274, much less presenting “smoking gun” evidence of congressional vindictiveness. In sum, we hold that § 274 is not a bill of attainder. First Amendment Challenge BellSouth complains that § 274 abridges its constitutional right of free speech by restricting its ability to provide electronic publishing. Clearly the structural separation requirements regulate expressive activity within the scope of the First Amendment. So, as is often the ease in the First Amendment arena, the parties devote much of their energy toward disputing the appropriate standard of review. BellSouth argues that § 274 warrants strict scrutiny for two reasons: first, because it singles out named corporations for speech restrictions, and second, because it is content-based. The FCC says that § 274 is a content-neutral regulation and should instead be evaluated under the intermediate standard of review applied by the Supreme Court in its decisions upholding the cable television “must-carry” rules. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (“Turner F) (determining that intermediate scrutiny applied); Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, -, 117 S.Ct. 1174, 1186, 137 L.Ed.2d 369 (1997) (“Turner IF) (upholding must-carry provisions under intermediate scrutiny). We agree with the FCC that an intermediate level of scrutiny is appropriate. We begin with BellSouth’s claim that § 274 warrants strict First Amendment review because it targets named corporations. In support of this claim BellSouth cites our decision in News America Publishing, Inc. v. FCC, 844 F.2d 800 (D.C.Cir.1988). That case concerned a provision that prohibited the FCC from granting extensions of temporary waivers of the newspaper/television cross-ownership rules to all then-current holders of such temporary waivers—a class of one, as it turned out. We struck down the provision on First Amendment and equal protection grounds, noting that “[w]here legislation affecting speech appears underinclusive, i.e., where it singles out some conduct for adverse treatment, and leaves untouched conduct that seems indistinguishable in terms of the law’s ostensible purpose, the omission is bound to raise a suspicion that the law’s true target is the message.” Id. at 804-05. Contrary to BellSouth’s assertion, however, News America does not stand for the proposition that statutes singling out particular persons for speech restrictions automatically merit strict scrutiny. In fact we chose among standards only to the extent of saying that the provision could not survive any standard of review more exacting than a rational basis test. Id. at 802, 814. Only marginally more promising for Bell-South are the Supreme Court’s decisions in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983), and Arkansas Writers’ Project v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). In both cases the Court applied strict scrutiny to invalidate state tax laws that had the effect of disproportionately burdening certain segments of the press. In Minneapolis Star, because the challenged use tax exempted the first $100,000 in ink and paper consumed by a publication in a given year, its bxxrden was borne by fewer than one in twenty newspapers in the state, with two-thirds of it landing on one publisher alone. 460 U.S. at 578-79, 103 S.Ct. at 1368-69. The sales tax struck down in Arkansas Writers’ Project appeared to spread its net more broadly, covering general interest magazines but exempting newspapers and religious, professional, trade, and sports magazines. 481 U.S. at 224, 107 S.Ct, at 1725. In fact, however, “the magazine exemption mean[t] that only a few Arkansas magazines pa[id] any sales tax,” giving the tax a targeting effect comparable to that of the Minneapolis Star tax. Id. at 229, 107 S.Ct. at 1727-28. The Supreme Court has explained the two cases as meaning only that strict scrutiny must be applied to regulations that target a small subset of media organizations in ways that threaten to “distort the market for ideas.” Turner I, 512 U.S, at 660, 114 S.Ct. at 2468 (quoting Leathers v. Medlock, 499 U.S. 439, 448, 111 S.Ct. 1438, 1444, 113 L.Ed.2d 494 (1991)). The Court has expressly declined to draw the broad lesson “that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others.” Turner I, 512 U.S. at 660, 114 S.Ct. at 2468. News America, Minneapolis Star, and Arkansas Writers’ Project all featured some suggestion that the legislature’s differ ential treatment of speakers was motivated by the content of their speech. See Turner I, 512 U.S. at 660, 114 S.Ct. at 2468 (“Although there was no evidence that an illicit governmental motive was behind either of the taxes, both were structured in a manner that raised suspicions that their objective was, in fact, the suppression of certain ideas.”). It is that suggestion, rather than the act of “singling out” by itself, that triggers strict First Amendment scrutiny, as Turner I made clear. See id. at 658, 114 S.Ct. at 2467 (“[S]peaker-based laws demand strict scrutiny when they reflect the Government’s preference for the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say).”). Here, there is no indication that § 274’s coverage was limited to the BOCs because of any concern about the content of their speech—no indication, in other words, that “the legislature’s speaker preference reflects a content preference.” Id. “So long as they are not a subtle means of exercising a content preference, speaker distinctions of this nature are not presumed invalid under the First Amendment.” Id. at 645, 114 S.Ct. at 2460-61. In addition, Turner I held that “heightened scrutiny is unwarranted when the differential treatment is ‘justified by some special characteristic of the particular medium being regulated.” Id. at 660-61, 114 S.Ct. at 2468 (quoting Minneapolis Star, 460 U.S. at 575, 103 S.Ct. at 1366-67). Congress’s imposition of structural separation on the BOCs because of their status as price-regulated bottleneck monopolies is certainly no more suggestive of any effort to exercise a content preference than were the must-carry provisions upheld in Turner, see Turner I, 512 U.S. at 661, 114 S.Ct. at 2468 (identifying “bottleneck monopoly power” held by cable operators as a special characteristic of the cable medium). We turn next to BellSouth’s claim that § 274 is expressly formulated in terms of content, and thus requires strict scrutiny. To be sure, § 274 defines the field of expression to which it applies by reference to a set of categories that might in a formal sense be described as content-based. Thus it covers items such as “news,” “entertainment,” and “research material,” and exempts information such as “video programming,” “voice messaging,” and “data processing.” See § 274(h)(1). Nothing about the provision, however, suggests an underlying purpose to favor or disfavor particular viewpoints, nor does Bell-South advance such a suggestion. The Supreme Court has held that statutes lacking such a purpose are likely to be deemed content-neutral. “[L]aws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content-neutral.” Turner I, 512 U.S. at 643, 114 S.Ct. at 2459. Indeed the very breadth of § 274’s categories undermines any claim that Congress adopted a categorical approach out of a desire to favor any particular viewpoint or idea. Further, to a large extent neutrality is now gauged by reference to a statute’s justifications: “Government regulation of expressive activity is content neutral so long as it’is justified without reference to the content of the regulated speech.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) (emphasis in original) (citation omitted); The goal of remedying bottleneck problems is independent of content and viewpoint. In summary,; then—despite BellSouth’s twin contentions that § 274 favors certain speakers, and certain types of speech, over others—we hold that intermediate scrutiny is appropriate because here, perhaps even more than in Turner, there is simply no hint that “the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.” Turner I, 512 U.S. at 642, 114 S.Ct. at 2459 (quoting Ward, 491 U.S. at 791, 109 S.Ct. at 2754). A regulation will be upheld under intermediate scrutiny “if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Turner II, 520 U.S. at-, 117 S.Ct. at 1186 (citing United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968)). The requirement of an important governmental interest is amply met here. The asserted interest underlying § 274 is to promote competition by discouraging discrimination and cross-subsidization by the BOCs. This is not only important, see Turner I, 512 U.S. at 644, 114 S.Ct. at 2460, but “unrelated to the suppression of free speech”; indeed, the interest in preventing truly anticompetitive behavior in the electronic publishing marketplace is an interest in the enhancement of speech. Cf. id. at 663, 114 S.Ct. at 2469-70. Under intermediate scrutiny, while the government obviously need not meet the most rigorous standard of “narrow tailoring,” it must nonetheless “demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms. in a direct and material way.”. Id. at 664, 114 S.Ct. at 2470. In determining whether the government has made this showing, we owe Congress’s economic judgments considerable deference, so as not to “infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.” Turner II, 520 U.S. at-, 117 S.Ct. at 1189; see also id. at-, 117 S.Ct. at 1203-03 (Breyer, J., concurring) (deferring to Congress’s non-economie objectives). Aside from noting the various executive branch (and judicial) positions taken in connection with removal of the MFJ’s restriction, which bear no more weight here than in the bill of attainder analysis, see pp. 64-65 above, BellSouth does not claim that Congress’s apparent concern about anticompetitive risks was unreasonable. But it does' complain that Congress could have guarded against these risks through less speech-restrictive methods, for instance by imposing non-structural safeguards such as accounting requirements. Intermediate First Amendment scrutiny, however, does not entail a “least restrictive means” analysis. See Turner II, 520 U.S. at ---, 117 S.Ct. at 1199-1200. It is at least plausible that structural separation will more effectively meet the perceived anticompetitive threat than would lesser restrictions, and although BellSouth characterizes the additional burden of structural separation as “enormous” (compared with, for example, special accounting rules), it offers neither detail nor quantitative evidence to support this characterization. As in its bill of attainder attack, BellSouth points to the exclusion of GTE and other non-BOC local exchange carriers. But as we said in that connection, there are plausible reasons for the exclusion, and, just as BellSouth failed in that context to suggest a punitive purpose, here it equally fails to suggest any intent to favor non-BOCs’ viewpoints over BOCs’. Moreover, since intermediate scrutiny demands that the government “not burden substantially more speech than necessaiy to further [its] interests,” Turner II, 520 U.S. at -, 117 S.Ct. at 1186, it would be odd to strike down, a statute because Congress failed to restrict as much expression as it could have—presumably because of a judgment that the interest justifying a restriction in one context, though “important,” was slightly less so than in the other and therefore, at the margin, outweighed by competing interests (including free speech). See Walsh v. Brady, 927 F.2d 1229, 1238-39 (D.C.Cir.1991) (Williams, J., concurring). Finally, we note again that § 274 leaves each RBOC free to publish electronically, using the facilities of its BOC subsidiaries, either directly or through a subsidiary, so long as the acting corporation conforms to the statutory separation requirements. Bell-South argues that the separated affiliate mechanism is entirely irrelevant to the First Amendment question, since “[i]t hardly answers one person’s objection to a restriction on his speech that another person, outside his control, may speak for him.” Arkansas Writers’ Project, 481 U.S. at 231, 107 S.Ct. at 1728 (internal quotations omitted). While undoubtedly true in the context of natural persons, this observation carries less weight in the context of controlled subsidiaries. The First Amendment does not normally permit the government to justify a prohibition on a corporation’s speech by pointing to the fact that its shareholders remain free to express themselves without restriction; corporations exist in significant part to overcome precisely the sorts of collective action problems that the shareholders in that scenario would then face. But there is no collective action problem here. The investors in BellSouth are free to use whatever portion of their pooled' resources they wish for electronic publishing, subject only to the need for structural separation. This is not to say that structural separation requirements count as merely in-, substantial burdens from a First Amendment perspective—they do not. Cf., e.g., FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 252-54, 107 S.Ct. 616, 624-26, 93 L.Ed.2d 539 (1986) (noting disclosure and, record-keeping requirements entailed by corporation’s use of segregated political contribution fund). But the fact that § 274 leaves RBOCs like BellSouth free to pursue electronic publishing strengthens our conclusion that § 274 does. not restrict substantially more speech than necessary. * * * The petition for review is Denied. . The order under challenge is Implementation of the Telecommunications Act of 1996: Telemessaging, Electronic Publishing, and Alarm Monitoring Services, FCC No. 97-35 (Feb. 7, 1997). BellSouth's challenge to the order is entirely derivative of its constitutional challenge to the statute, with no claim that the FCC acted outside the scope of its statutory authority. . AT&T also divested its minority holdings in the Cincinnati Bell Telephone Company and the Southern New England Telephone Company, which are not classified as BOCs in the Act. . The Act defines "Bell operating company” as follows: The term "Bell operating company"— • (A)means any of the following companies: Bell Telephone Company of Nevada, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, New England Telephone and Telegraph Company, New Jersey Bell Telephone Company, New York Telephone Company, U.S. West Communications Company, South Central Bell Telephone Company, Southern Bell Telephone and Telegraph Company, Southwestern Bell Telephone Company, The Bell Telephone Company of Pennsylvania; The Chesapeake and Potomac Telephone Company, The Chesapeake and Potomac Telephone Company of Maryland, The Chesapeake and Potomac Telephone Company of Virginia, The Chesapeake and Potomac Telephone Company of West Virginia, The Diamond State Telephone Company, The Ohio Bell Telephone Company, The Pacific Telephone and Telegraph Company, or Wisconsin Telephone Company; and (B) includes any successor or assign of any such company that provides wireline telephone exchange service; but (C) does not include an affiliate of any such company, other than an affiliate described in subparagraph (A) or (B). 47 U.S.C. § 153(4). . We note that another RBOC has launched a Bill of Attainder Clause and First Amendment challenge to the "Special Provisions” as a whole. See SBC Communications, Inc. v. FCC, 981 F.Supp. 996 (N.D.Tex.1997). . At least it would do so if it took the form of a conventional penalty such as a fine. If it look the form of a restriction barring certain closely held corporations from specific lines of business, its effect on flesh-and-blood people would depend on the language of the restriction and on the ability of officers, directors and shareholders to carry on their pursuits outside the named corporations. See below at pp. 65-66. . See also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239 n. 9, 115 S.Ct. 1447, 1463 n. 9, 131 L.Ed.2d 328 (1995) (”[L]aws that impose a duty or liability upon a single individual or firm are not on that account invalid—or else we would not have the extensive jurisprudence that we do concerning the Bill of Attainder Clause, including cases which say that it requires not merely 'singling out' but also punishment, see, e.g., United States v. Lovett, 328 U.S. 303, 315-18 [106 Ct.Cl. 856, 66 S.Ct. 1073, 1078-80, 90 L.Ed. 1252] (1946), and a case which says that Congress may legislate 'a legitimate class of one,’ Nixon v. Administrator of General Services, 433 U.S. 425, 472 [97 S.Ct. 2777, 2805, 53 L.Ed.2d 867] (1977).”) . See also Pierce v. Carskadon, 83 U.S. (16 Wall.) 234, 21 L.Ed. 276 (1872) (memorandum opinion striking down West Virginia loyalty oath similar to those invalidated in Cummings and Garland). . Because we find no attainder, we need not wrestle with the issue of remedy. Severability is largely a matter of legislative intent, and it is doubtful that Congress would have intended the many provisions of the Act beneficial to the BOCs to survive deletion of this burdensome one. . Like the BOCs, GTE was subject to a consent decree for more than a decade, until the- passage of the Act. The decree, however, permitted GTE to provide information services, subject to structural separation and non-discrimination requirements. See United States v. GTE Corp., 603 F.Supp. 730, 742 (D.D.C.1984). . While in 1993 we somewhat disparaged the distinction then drawn between GTE and the BOCs on the basis of relative dispersion, United States v. Western Electric Co., 993 F.2d at 1579, we did so solely with respect to the claim of discrimination against competing providers. Our reasoning was that' the BOCs could not easily sort out information services transmissions, or intra-corporate transmissions, on the customer end of a call, as they would have to do in order to discriminate efficiently. Id. That deficiency would not seem to impede cost-shifting, where the regulated monopoly attempts to deceive regulators about which costs belong in the regulated enterprise and which in the other. . In a similar vein, we have described Minneapolis Star and Arkansas Writers' Project as “likely addressed only to the special complexities of taxation.” Walsh v. Brady, 927 F.2d 1229, 1236 (D.C.Cir.1991). . In fact, the tax exemption challenged in Arkansas Writers' Project facially excluded certain publications on the basis of their content, rendering it especially suspect. 481 U.S. at 229-30, 107 S.Ct. at 1727-28. SENTELLE, Circuit Judge, dissenting: With respect to the First Amendment argument of the Bell operating companies (“BOCs”), I agree with the majority’s analysis and with its conclusion. With respect to the bill of attainder claim, however, I agree with most of the majority’s analysis;' I simply conclude that it does not support the majority’s conclusion. The majority opinion sets forth the provisions of 47 U.S.C. § 274, and I .will not rehash them here, beyond a brief summary to set the stage for my dissent. That section prohibits Bell operating companies, by name, and their affiliates, from engaging in the provision of a lucrative fine of business on the same terms as competitors, potential competitors, or anyone else in the world. BellSouth argues that this provision constitutes ^legislative punishment for their past course of business conduct, and as such, runs afoul of Article I, section 9, clause 3 of the Constitution, which provides that, “No Bill of Attainder or ex post facto law shall be passed.” As the majority notes, while the term “Bill of Attainder” may have originally referred to parliamentary acts sentencing persons to death without a trial by the judiciary, Maj. Op. at 62, the Supreme Court early held that the prohibition extends to legislative punishment of specified persons beyond capital punishment. Fletcher v. Peck, 10 U.S. (6 Crunch) 87, 3 L.Ed. 162 (1810). As the majority further notes, the court has developed a clearly identifiable bill-of-attainder jurisprudence under which “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.” United States v. Lovett, 328 U.S. 303, 315-16, 106 Ct.Cl. 856, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252 (1946). As the majority reasons, the result of this progressive revelation of jurisprudence is that the prohibition against bills of attainder is “triggered when a legislative act meets two tests—first, that it apply with specificity, and second, that it impose punishment.” Maj. Op. at 62. I completely agree. What I do not understand about the majority opinion is why, having fully loaded its analysis with specificity and punishment, the majority is unable to pull the trigger in this case. On its face, the legislation before us appears to fall squarely on the condemned side of this two-part test. Section 274 exhibits nearly unprecedented specificity, forbidding twenty named corporations, alone out of over 1,300 local exchange carriers, from entering a trade or business oh the same terms as others. Of all the bill of attainder cases decided by the Supreme Court, in only one did a statute single out individuals by name, and that was deemed an unconstitutional bill of attainder. See Lovett, 328 U.S. 303, 66 S.Ct. 1073. And, as the Supreme Court has held, “legislative bars to participation by individuals or groups in specific employments or professions” do indeed constitute punishment within the meaning of this test. Selective Service System v. Minnesota Public In terest Research Group, 468 U.S. 841, 852,104 S.Ct. 3348, 3355, 82 L.Ed.2d 632 (1984). Absent the Supreme Court’s decision in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), I think we would rule this an unconstitutional bill of attainder without going further. Mere specificity may not make an act a bill of attainder, but in most cases the Court has required little more. The Court has described the Bill of Attainder Clause as the embodiment of a fundamental principle of separation of powers: “a legislature can provide that persons possessing certain characteristics must abstain from certain activities, but must leave to other tribunals the task of deciding who possesses those characteristics.” United States v. Brown, 381 U.S. 437, 454 n. 29, 85 S.Ct. 1707 at 1718 n. 29, 14 L.Ed.2d 484 (1965). But Nixon precludes defining a bill of attainder solely in terms of its specificity. In that case, Congress acted against a single, named individual for disfavored treatment as compared to “all other Presidents or members of the Government.” 433 U.S. at 470, 97 S.Ct. at 2804. After a herculean struggle, the Court concluded that the statute could be upheld because “appellant constituted a legitimate class of one....” Id. at 472, 97 S.Ct. at 2805. The majority upholding that statute included Justice Stevens, who noted in his separate concurrence that “[t]he very specificity of the statute would mark it as punishment, for there is rarely any valid reason for such narrow legislation; and normally the Constitution requires Congress to proceed by general rulemaking rather than by deciding individual cases.” Id. at 485-86, 97 S.Ct. at 2814 (Stevens, J., concurring). Just so. And absent that Nixon decision, the theory advanced by Brown and echoed by Justice Stevens would in my view be an adequate basis for striking down the present legislation. Nixon, of course, is a unique case. It involved a disgraced President of the United States who had, as Justice Stevens pointed out, “resigned his office under unique circumstances and accepted a pardon for any offenses committed while in office,” thereby “plac[ing] himself in a different class from all other Presidents.” Id. at 486, 97 S.Ct. at 2814. Despite my respect for the Supreme Court, I must say that this case may well be evidence of the classic statement that hard cases make bad law. The majority circumvented the apparent status of the statute, singling out one President by name, with an unconvincing analysis holding that the burden placed upon him was not a punishment. Chief Justice Burger’s dissent, 433 U.S. at 536-45, 97 S.Ct. at 2837-42, noted the anomalous character of the decision legitimating a “ ‘class of one’ ... under the Bill of Attainder Clause.” Id. at 545, 97 S.Ct. at 2841. Without that decision, the analysis suggested by Justice Stevens would impel if not compel a decision that the statute before us runs afoul of that clause. The legislative imposition of a burden solely on a class of individuals defined by name rather than by characteristic (although not a class of one as in the case of Nixon) on its face bespeaks an intent to punish rather than to merely regulate. But still, the Nixon decision is a Supreme Court decision, and whether a good one or a bad one, it binds us. Because of that decision, and its convoluted analysis holding non-punitive the unprecedented burdening of a “class of one,” we must undertake a more careful analysis of “punishment” under the three-part test of Selective Service System, 468 U.S. 841, 104 S.Ct. 3348. In what appears to have been an attempt to cabin its reasoning in Nixon, the Court in Selective Service System announced a three-part test to determine whether a statute imposes “punishment” for purposes of the Bill of Attainder Clause: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes; and (3) whether the legislative record evinces a congressional intent to punish. Id. at 852, 104 S.Ct. at 3355 (internal punctuation omitted). This test leads inexorably to a conclusion that the statute before us is a bill of attainder. As to the first part of the test, even the majority must recognize that “legislative bars to participation by individu als or groups in specific employments or professions,” id., have constituted the most common sort of statutes struck down by the Court as unconstitutional bills of attainder. Nixon simply does not change this fact. The Court in Nixon distinguished the statute before it as nonpunitive—not only did the statute fail to inflict any harm previously held to be “forbidden deprivations,” but its provision for “ ‘just compensation’ ... undercut[ ] even a colorable contention that the Government has punitively confiscated appellant’s property....” 433 U.S. at 475, 97 S.Ct. at 2806. Here, given the history of treating, line-of-business restrictions as punishment, such an easy escape is not available. Under Selective Service, we probably need go no further; nevertheless, analysis under the additional parts of that test support the conclusion that this statute is unconstitutional. The second prong asks “whether the statute, viewed in terms of the' type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.” 468 U.S. at 852, 104 S.Ct. at 3355 (internal punctuation omitted). In my view, it cannot. The majority concludes that it can, stating: “apart from its specific targeting aspect, we find that § 274 has the earmarks of a rather conventional response to commonly perceived risks of anticompetitive behavior.” Maj. Op. at 65. While the latter portion of this statement may be true, I do not see how we can analyze the statute in terms “apart from its specific targeting aspect.” The statute does not address the characteristics of local exchange carriers that create risks of anticompetitive behavior. If it did, it would speak of those characteristics, which might well be shared by, for example, GTE or Sprint. See Illinois Bell Tel. Co. v. FCC, 740 F.2d 465, 476 (7th Cir.1984) (noting that even small LECs may have the “ability to abuse a monopoly position”). Then’, whether or not a particular carrier possessed the relevant characteristics and therefore should be restricted would be subject to judicial determination. By naming the companies rather than describing the characteristics creating the risks, it seems apparent that Congress aimed, not at protecting present and future markets from potential abuse of monopoly power, but at punishing those named companies’ past anticompetitive behavior. I agree with tpday’s majority that the second factor “appears to be the most important of the three.” Maj. Op. at 65. I cannot, however, agree with the majority that it cuts against the characterization of section 274 as a bill of attainder. I further conclude that the third factor, which I deem the least important, also supports classifying the statute as a bill of attainder. That factor requires us to examine “whether the legislative record evinces a congressional intent to punish.” Selective Service, 468 U.S. at 852, 104 S.Ct. at 3355 (internal punctuation omitted). In my view it does. As the majority notes, “scattered remarks” in the legislative history “refer[] to anticompetitive abuses allegedly committed by the BOCs in the .past____” Maj. Op. at 67. While I find the very existence of the scattered remarks to be indicative of the punitive intent behind the statute,, I do not find them conclusive. We have noted before that “[a]t its best, legislative history is an undependable guide to the meaning of a statute.” Gersman v. Group Health Ass’n, Inc., 975 F.2d 886, 890 (D.C.Cir.1992). I suggest that it is no more dependable in ascertaining the motive behind the statute. More instructive on congressional motivation than the scattered remarks is the timing and apparent triggering of the enactment. As the majority notes in its discussion of factor two, Congress passed section 274 after the judiciary removed the information services prohibition from the modified final judgment. Maj. Op. at 66-67. The reinstatement of that ban following its judicial removal to me bespeaks, indeed shouts, a motive on the part of the Article I branch to reimpose a burden on the parties before the court which the Article III branch found no longer appropriate. While I have no quarrel with the legitimacy of a congressional motive to correct what it sees as an improper application of legal protection against future, conduct, when Congress defined the burdened class by name rather than by characteristic or future action, I can discern no other motive than an intent to react to (read “punish”) the past conduct of those named persons. This, I suggest, violates the principle under lying Article I, section 9, clause 3, given short shrift by the majority. That is, the prohibition against bills of attainder and ex post facto laws is an essential part of the Constitution’s structural separation of powers among the three branches of government. As the majority’s analysis suggests, that clause was designed to prevent punishment “without the benefit of a judicial trial.” Maj. Op. at 62. By way of comparison, in Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995), the Supreme Court struck down as unconstitutional a congressional enactment “to the extent that it require[d] federal courts to reopen final judgments entered before its enactment.” Id. at 240, 115 S.Ct. at 1463. While the statute before us does not literally run afoul of that prohibition, it partakes of the same sort of violation of separation of powers safeguards. That is, it does not simply regulate or prohibit future conduct or create a ban on the entry into a line of business based on risks of future anticompetitive behavior, but rather, it singles out for such a ban, such a burden, named entities. It is one thing for the legislature to attempt to protect competition by defining a standard against which the conduct of individuals can be measured. It is quite another for it to simply list the names of individuals who Congress perceives as having uncontrollable monopolistic tendencies. This short-circuits the factfinding and due process protections of trial in an Article III court; and therefore runs afoul of the structural provi7 sions embodied in the Constitution’s Bill of Attainder Clause. I would say in closing that the majority’s discussion of the lightness of the burden, typified by the ways in which a BOC might restructure in order to get around it, goes only to the weight of the punishment, not its character as punishment. Thus, that part of the majority’s reasoning does nothing to convince me that the statute can survive constitutional scrutiny.

PATRICK E. HIGGINBOTHAM, Circuit Judge: We are called to interpret a heretofore unconstrued provision of the Longshore and Harbor Workers Compensation Act, viz., the “club/camp” exclusion delineated at 33 U.S.C. § 902(3)(B). Our reading of the statute and its legislative history compels us to conclude that Green falls into the category of employees for which Congress drafted the “club/ camp” exception. We AFFIRM the judgment of the district court denying LHWCA coverage to Green. We REVERSE the judgment of the district court dismissing Green’s general maritime negligence and unseaworthiness claims and REMAND for further proceedings. I The Vermilion Corporation employed Green at a “duck camp” it operated pursuant to its contract with the Bayou Club. The camp is located on marsh land near a private canal off a bayou. Besides a duck camp, Vermilion uses the post as a “headquarters” for its operations in this area, which include harvesting and selling alligator eggs, trapping and selling alligators, fur trapping, shrimping, and rice farming. During duck season, which is approximately three months long, Green worked as both a cook and watchman at the camp. During the rest of the year, Green served as a watchman, performed general maintenance on the camp and usually cooked a lunch meal for any Vermilion employees working in the area. Green worked only at the camp and was required to stay there from Monday at 8:00 a.m. to noon on Friday, except for duck season when his hours were longer. Green got to the camp via a boat and usually brought a week’s worth of groceries with him on Monday morning. Green also occasionally assisted in mooring and unloading supply boats that docked at the camp. On May 10, 1994, Lee Guidry, a Vermilion employee, was piloting THE M/V GAD-WALL, a vessel under eighteen tons net. Guidry radioed Green at the camp and asked him to assist in tying up the vessel and in unloading supplies and equipment. While mooring the vessel, Green boarded THE M/V GADWALL, slipped and fell on the deck. Green sustained injuries to his neck and back. Green filed suit against Vermilion alleging claims under the LHWCA and general maritime law for negligence and unseaworthiness. The district court first granted Vermilion’s motion for summary judgment dismissing Green’s LHWCA claim because Green fell under the “vessel under eighteen tons net” employee exception. Then, after further briefing by the parties, the district court granted Vermilion’s motion for summary judgment and reconsideration, holding that Green was excluded from LHWCA coverage by the “club/camp” employee exception. The district court dismissed the remainder of Green’s claims on the grounds that the Louisiana Worker’s Compensation Act was his exclusive remedy. Green timely appealed the district court’s judgments. We have jurisdiction under 28 U.S.C. § 1291. II This court reviews a grant of summary judgment de novo applying the same standard as did the district court. Dawkins v. Sears Roebuck & Co., 109 F.3d 241, 242 (5th Cir.1997). In order to qualify for coverage under the LHWCA, a worker must pass both a situs and a status test. Director v. Perini North River Assocs., 459 U.S. 297, 314, 103 S.Ct. 634, 645, 74 L.Ed.2d 465 (1983). Green satisfies the situs test since he was injured upon navigable waters. See id. With respect to the status test, we will assume arguendo that Green was engaged in “maritime employment”, see 33 U.S.C. § 902(3); Randall v. Chevron U.S.A., Inc., 13 F.3d 888, 897 (5th Cir.), cert. denied, 513 U.S. 994, 115 S.Ct. 498, 130 L.Ed.2d 408 (1994), since we think it clear that he falls within the “club/camp” exclusion from LHWCA coverage. There are exceptions to the term “employee” under the LHWCA. See 33 U.S.C. § 902(3)(A)-(H). In particular, § 902(3)(B) provides: The term “employee” means any person engaged in maritime employment, ... but such term does not include— (B) individuals employed by a club, camp, recreational operation, museum, or retail outlet; if individuals described in clauses- (A) through (F) are subject to coverage under a State workers’ compensation law. Id. Interpretation of this provision is an issue of first impression in this circuit. The district court held that Green fell within the “club/camp” exclusion because he performed all of his duties at the duck camp. The lower court found unpersuasive Green’s argument that he was employed “by” the Vermillion Corporation, not a. camp, since that construction of § 902(3)(B) renders the exception meaningless in today’s world of business organizations. Green repeats this argument to us. Green contends that interpretation of § 902(3)(B) is controlled by the nature of the employer’s business and not the employee’s activities. For support, Green points to the House Document accompanying the 1984 Amendments that added the “club/camp” exception to the LHWCA. The House Document states that the “exclusions from the definition of ‘employee’ contained in the amendments ... are intended to be narrowly construed” and that paragraph (B) excludes employees “because of the nature of the employing enterprise, as opposed to the exclusions in paragraph [ (A) ], which are based on the nature of the work which the employee is performing.” H.R.Doc. No. 98-570, Part I 98th Cong., 2nd Sess. 1984 U.S.C.C.A.N. (98 Stat. 1639) 2734, 2736. Because Vermillion is involved in sundry business ventures, including maritime activities, Green claims that his employer was a multi-faceted corporation, not a “camp.” “As with any statutory question, we begin with the language of the statute.” In re Greenway, 71 F.3d 1177, 1179 (5th Cir.), cert. denied, 517 U.S. 1244, 116 S.Ct. 2499, 135 L.Ed.2d 191 (1996). Green makes much of Congress’s use of “by” in the statute and notes that Congress did not use the phrase “employed at a club [or] camp.” Contrary to Green, we do not think that the word “by” bears such weight. Rather, the key words in the provision are those designating the concerns the employees of which are excluded from LHWCA coverage (e.g., club, camp, restaurant, museum): Under this focus, it is evident that Green worked exclusively to further an operation which comports with the plain meaning of the terms “camp” and “club.” The Vermillion facilities had all the trappings of a typical southern Louisiana hunting camp. See R. Vol. 2 at 281. Though it used the camp throughout the year, the primary reason Vermillion maintained the facility was to fulfill its contractual obligation to the Bayou Club to provide a duck camp for the waterfowl hunting season. In fact, a Vermilion officer testified that but for the lease to the Bayou Club, Vermillion would not have conducted any of its operations from this site and would not have had any need for Green’s services. See R. Vol. 2 at 287-88. Since Green was employed solely to render services to promote and maintain a duck camp, we hold that he is excluded from LHWCA coverage under § 902(3)(B). Green’s reliance upon the legislative history of the 1984 Amendments does not alter our conclusion. Unlike Green, we do not believe that in construing the “club/camp” exception, we are limited to considering only the nature of the employer’s enterprise. The House Document to which Green refers expressly states that businesses falling under paragraph (B) may have employees that should remain covered under the Act “because of the nature of the work which they do, or the nature of the hazards to which they are exposed.” H.R.Doc. No. 98-570, Part I 98th Cong., 2nd Sess. 1984 U.S.C.C.A.N. (98 Stat. 1639) 2737. By the same token, we believe the opposite is true— clubs and camps may employ individuals who should not be covered under the LHWCA because their job responsibilities do not, or only minutely, involve maritime activities and they are not exposed to hazards associated with traditional maritime activities. The record reflects that Green’s duties were to be a cook, watchman, and general repairman of the camp buildings. We do not consider Green to be an employee for which LHWCA benefits were intended. III Even if he is not entitled to LHWCA benefits, Green argues that the district court erred in dismissing his general maritime claims against Vermilion for negligence and unseaworthiness. Vermilion disagrees based on its belief that the Louisiana Workers’ Compensation Act is Green’s exclusive remedy. A The first step in our analysis of this issue is to determine whether there is admiralty jurisdiction. Admiralty jurisdiction requires that the tort have a maritime locality and that “the facts and circumstances of the claim must bear a significant relationship to traditional maritime activity.” Thibodaux v. Atlantic Richfield Co., 580 F.2d 841, 846 n. 14 (5th Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979). The situs test is met because Green was injured while on navigable waters. See Kelly v. Smith, 485 F.2d 520, 525 (5th Cir.1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). To determine whether there is a sufficient nexus to maritime activity, we examine four factors: the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and the type of injury; and traditional concepts of the role of admiralty law. See Kelly, 485 F.2d at 525. In applying this test, we have noted that “[ajdmiralty has traditionally been concerned with furnishing remedies for those injured while traveling navigable waters”, id. at 526, and that “the relationship to traditional maritime activity required for the invqcation of admiralty jurisdiction” may be present though “the threshold requirement of maritime employment necessary to establish coverage under the LHWCA” may not be met. Thibodaux, 580 F.2d at 846. Applying the four factors, we find that Green was injured in the course of his employment while performing the traditional maritime activity of mooring a vessel; Vermilion owned the vessel on which Green fell; the vehicle involved was a vessel routinely employed on navigable waters; the alleged cause of Green’s injury was an unkept deck; Green’s injury was not uncommon in the maritime context; and “upholding maritime jurisdiction does not stretch or distort long evolved principles of maritime law,” Kelly, 485 F.2d at 526, since federal courts have long recognized unseaworthiness and general maritime negligence claims. These facts provide a sufficient nexus to maritime activity for us to assert admiralty jurisdiction over this case. See King v. Universal Elec. Constr., 799 F.2d 1073, 1075 (5th Cir.1986); Thibodaux, 580 F.2d at 846 n. 14; Kelly, 485 F.2d at 526. B With respect to the merits, we note that an earlier panel of this court was “squarely presented with the issue of whether an exclusive remedy provision in a state workmen’s compensation statute can operate to deprive a party of a cause of action afforded by federal maritime law.” Thibodaux, 580 F.2d at 846. The panel ’in that case concluded that relevant Supreme Court and Fifth Circuit precedent made “it clear that an exclusive remedy provision in a state workmen’s compensation law cannot be applied when it will conflict with maritime policy and undermine substantive rights afforded by federal maritime law.” Id. at 847. Thus, the court specifically held that “the exclusive remedy provision of the Louisiana Workmen’s Compensation Act” does not preclude a plaintiff from pursuing a claim for wrongful death occasioned in state territorial waters since the Supreme Court had expressly recognized such a suit under admiralty jurisdiction. Id. at 847; see also Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) (creating wrongful death claim in admiralty law). A later panel of this court strengthened Thibodaux by holding that irrespective of whether the defendant in the maritime tort suit is the plaintiffs “statutory employer,” like in Thibodaux; or his “actual employer,” federal maritime law overrides the exclusive remedy provision of the Louisiana Workers’ Compensation Act in each case. See King, 799 F.2d at 1074. The Eleventh Circuit appears to have charted a -different course as it barred a plaintiff, from asserting a negligence claim under general maritime law where an exclusivity provision of a state workers’ compensation scheme applied. See Brockington v. Certified Elec., Inc., 903 F.2d 1523, 1533 (11th Cir.1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991). That circuit distinguishes Thibodaux and King on the grounds that they apply only to wrongful death actions, a tort for which the'Supreme Court expressly recognized admiralty jurisdiction in order to provide national uniformity. We are not persuaded that the Eleventh Circuit ruling conflicts with our precedent with respect to a plaintiffs ability to assert a unseaworthiness claim in the face of an exclusive remedy provision of a state workers’ compensation statute. Though Thibodaux and King involved wrongful death claims, their holdings were based on the Supreme Court’s pronouncement that ‘“[wjhile states may sometimes supplement federal maritime policies, a state may not deprive a person of any substantial admiralty rights as defined in controlling acts of Congress or by interpretative decisions of this Court.’” Thibodaux, 580 F.2d at 846 (quoting Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-10, 74 S.Ct. 202, 205, 98 L.Ed. 143 (1953)). As the Eleventh Circuit admitted in Brockington, the Supreme Court has expressly authorized a claim for unseaworthiness in admiralty jurisdiction. See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Brockington, 903 F.2d at 1531. That unseaworthiness is a “right peculiar to the law of admiralty” allowed the Brockington court to distinguish this court’s opinion in Brown v. ITT Rayonier, Inc., 497 F.2d 234 (5th Cir.1974), which “disregard[ed] the state worker’s compensation statute in favor of permitting an action in general maritime law,” from the case before it in which the plaintiff was asserting a negligence claim. Brockington, 903 F.2d at 1531. Since both the wrongful death claim alleged in Thibodaux and King and the unseaworthiness claim asserted here and in Brown trace their lineage to Supreme Court explications of admiralty law, we see no reason to give one more preemptive force than the other. With this principle, we think the Eleventh Circuit would agree. Thus, following the principles established in Thibodaux and King, we hold that the exclusive remedy provision of the Louisiana Workers’ Compensation Act does not preclude Green from asserting his claim for unseaworthiness. Our holding is supported by the history of the LHWCA and its treatment of Sieracki claims. In enacting the 1972 Amendments to the LHWCA, Congress increased the statutory benefits to longshoremen in exchange for the termination of their claims for breach of the warranty of seaworthiness. See 33 U.S.C. § 905(a); Aparicio v. Swan Lake, 643 F.2d 1109, 1117 (5th Cir.1981). We have held, however, that longshoremen who are not entitled to LHWCA benefits may still pursue their general maritime claims against the vessel owner because they did not receive the benefits of the bargain of the 1972 Amendments. See id. at 1118 (recognizing “pockets of Sieracki seamen remaining after the 1972 amendments” to the LHWCA); Cormier v. Oceanid Contractors, Inc., 696 F.2d 1112, 1113 (5th Cir.) (Higginbotham, J.) (following Aparicio that § 905 “did not deny the warranty of seaworthiness to workers not covered by the LHWCA”), cert. denied, 464 U.S. 821, 104 S.Ct. 85, 78 L.Ed.2d 94 (1983). Vermilion seeks to distinguish these eases on the ground that they did not involve a situation, like in the instant case, where the longshoreman was entitled to benefits under a state workers’ compensation scheme which made the state compensation benefits the employee’s exclusive remedy against his employer, including any claim under a dual capacity theory. See La.Rev.Stat. § 23:1032(A) (Supp.1998). We find Vermillion’s distinction nebulous. Though Green is entitled to seek relief under the Louisiana Workers’ Compensation Act, that option is not exclusive. See Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 722, 100 S.Ct. 2432, 2437-38, 65 L.Ed.2d 458 (1980) (finding concurrent federal and state jurisdiction for maritime employees covered by both the LHWCA and a state workers’ compensation scheme). The 1972 Amendments to theLHWCA, “which Congress enacted to abolish the Sieracki remedy, [do] not apply to maritime workers who are not within the coverage of the LHWCA.” Aparicio, 643 F.2d at 1116. Where the LHWCA does not apply, we refuse to expose maritime workers to the variegated state workers’ cotapensation schemes, especially where Congress has expressly found that “most State Workmen’s Compensation laws provide benefits which are inadequate.” H.R.Doc. 92-1441, 92th Cong., 2nd Sess. 1972 U.S.C.C.A.N. 4698, 4707; see also Sun Ship, 447 U.S. at 723 n. 5, 100 S.Ct. at 2438 n. 5. Green may pursue his Sieracki claim against Vermillion despite the availability of relief under the Louisiana Workers’ Compensation Act. This court’s decision in Kent v. Shell Oil Co., 286 F.2d 746 (5th Cir.1961), does not require a contrary result. In that case, Kent, a truck driver who performed all of his job duties on land, was injured while unloading pipe from a truck onto a barge. See id. at 1A8-4S. Kent did not plead or allege a claim of unseaworthiness until he requested a jury instruction on this theory of liability. See id. at 749-50. The appellate court affirmed the district court’s refusal to instruct the jury on seaworthiness. See id. at 750. Though one of the reasons for its decision was the presence of the exclusive remedy provision of the Louisiana Workers’ Compensation Act, see id. at 751-52, we think Kent is factually and legally distinct from the case at bar. In Kent, the court gave special significance to the fact that Kent was solely a land-based worker who did not perform any maritime activity and was injured on land. See id. at 751. The court analyzed the case as one involving a land tort and controlled by local law. See id. Given the weak nexus between the facts and circumstances of Kent’s claim with traditional maritime activity, we doubt if admiralty jurisdiction would even lie in such a case under our current precedent. See Kelly, 485 F.2d at 525-26. In addition, no evidence supported Kent’s unseaworthiness claim. See Kent, 286 F.2d at 752-53. Here, admiralty jurisdiction lies as Green was injured upon navigable waters while performing the traditional maritime activity of mooring a vessel in preparation for unloading cargo. Green also presented evidence suggesting that the deck of the vessel was in disrepair. We limit Kent, a pre-Kelly case, to its facts and do not ascribe to it the power to foreclose the assertion of an unseaworthiness claim where a state workers’ compensation scheme purports to be a plaintiffs exclusive remedy. C We next turn to whether Green may assert his general maritime negligence claim against Vermilion, his employer, despite the exclusivity provision of the Louisiana Workers’ Compensation Act. We examine Green’s general maritime negligence claim separately from his unseaworthiness claim. A general maritime negligence claim has a Supreme Court heritage, see Leathers v. Blessing, 105 U.S. (15 Otto) 626, 26 L.Ed. 1192 (1881) (recognizing general maritime negligence claim); Pope & Talbot, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (same), but is not as unique to admiralty law as unseaworthiness.- See 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 5-2 to § 5-4 (2d ed. 1994) (discussing fundamental negligence concepts in maritime context); see also Cox v. Esso Shipping Co., 247 F.2d 629, 637 (5th Cir.1957) (delineating differences between unseaworthiness and general maritime negligence claims). In addition, states have a greater interest in overriding negligence claims of an employee against his employer via its workers’ compensation statute than a claim of unseaworthiness since states enacted employment compensation schemes to preclude precisely these types of suits. See Ellis v. Normal Life, 638 So.2d 422, 426-27 (La.Ct.App.1994). We begin our discussion by noting that the Supreme Court admittedly has been “unable to give any guiding, definite rule to determine the extent of state power” in the maritime field with respect to providing remedies to injured workers. Davis v. Department of Labor, 317 U.S. 249, 253, 63 S.Ct. 225, 227, 87 L.Ed. 246. (1942); see also Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 274, 79 S.Ct. 266, 268, 3 L.Ed.2d 292 (1959) (Stewart, J., dissenting) (observing the Supreme Court’s struggle with harmonizing federal and state compensation schemes in the mari time area); Southern Pac. Co. v. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 529; 61 L.Ed. 1086 (1916) (“[I]t would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation.”). There are conflicting lines deciding the force to be given an exclusive remedy provision of a state workers’ compensation statute in the maritime context. See Davis, 317 U.S. at 253, 63 S.Ct. at 227 (listing cases). One line of cases unequivocally holds that state workers’ compensation statutes can not preclude an employee from asserting a general maritime negligence claim against his employer for injuries sustained on navigable waters during the course of his employment. See Southern Pac., 244 U.S. at 217, 37 S.Ct. at 529 (holding the New York Workers’ Compensation Act unconstitutional to the extent it bars an employee from alleging a general maritime negligence claim against his employer); Clyde S.S. Co. v. Walker, 244 U.S. 255, 257, 37 S.Ct. 545, 61 L.Ed. 1116 (1917) (following Jensen); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 163-64, 40 S.Ct. 438, 441, 64 L.Ed. 834 (1920) (striking down Congress’s first attempt to permit application of state workers’ compensation schemes in maritime field because Congress may not delegate its power to alter, amend, or revise the maritime law to the states); Washington v. W.C. Dawson & Co., 264 U.S. 219, 227-28, 44 S.Ct. 302, 305-06, 68 L.Ed. 646 (1924) (invalidating Congress’s second attempt to incorporate state workers’ compensation statutes into federal maritime law); Gonsalves v. Morse Dry Dock & Repair Co., 266 U.S. 171, 172, 45 S.Ct. 39, 39, 69 L.Ed. 228 (1924) (approving assertion of general maritime negligence claim by employee against his employer); Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 457, 45 S.Ct. 157, 69 L.Ed. 372 (1924) (finding erroneous a jury instruction which permitted the jury to consider state law in determining whether employer was negligent because “[t]he rights and liabilitiés of the parties arose out of and depended upon the general maritime law and could not be enlarged or impaired by the state statute”); Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 147, 49 S.Ct. 88, 90, 73 L.Ed. 232 (1928) (reversing judgment awarding "state workers’ compensation benefits to widow of deceased stevedore because only federal maritime law may provide remedies); John Baizley Iron Works v. Span, 281 U.S. 222, 230-32, 50 S.Ct. 306, 307-08, 74 L.Ed. 819 (1930) (denying workers’ compensation benefits to ship repairman injured upon navigable waters since state law may not modify rights under admiralty law); Employers’ Liab. Assurance Corp. v. Cook, 281 U.S. 233, 236, 50 S.Ct. 308, 309, 74 L.Ed. 823 (1930) (precluding state workers’ compensation award because “State lacked power to prescribe the rights and liabilities of the parties growing out of the accident”); Nogueira v. New York, New Haven & Hartford R.R. Co., 281 U.S. 128, 138, 50 S.Ct. 303, 306, 74 L.Ed. 754 (1930) (commenting that “had the petitioner been engaged in intrastate commerce, his case still would have been within the maritime jurisdiction of the Federal courts, and he would have been denied the benefits .of the state compensation law”); Spencer Kellogg & Sons, Inc. v. Hicks, 285 U.S. 502, 513, 52 S.Ct. 450, 453, 76 L.Ed. 903 (1932) (“The workmen’s compensation law of New Jersey, the purpose of which was to supersede the common law redress in tort cases and statutory rights consequent upon death by wrongful act, and to substitute a commuted compensation for injury or death of an employee, irrespective of fault, is not applicable to the injuries and deaths under consideration.”). This line of precedent is itself supported by cases refusing to subordinate federal admiralty principles to the dictates of state law. See e.g., The Key City, 81 U.S. (14 Wall.) 653, 660, 20 L.Ed. 896 (1871) (stating that doctrine of laches, not state statutes of limita tions, apply to suits enforcing maritime liens); Workman v. City of New York, 179 U.S. 552, 560, 21 S.Ct. 212, 215, 45 L.Ed. 314. (1900) (“[I]t becomes manifest that the decisions of this court overthrow the assumption that the local law or decisions of a State can deprive of all rights to relief, in a ease where redress is afforded by the maritime law and is sought to be availed of in a cause of action maritime in its nature and depending in1 a court of admiralty of the United States.”); Atlantic Transp. Co. v. Imbrovek, 234 U.S. 52, 61-63, 34 S.Ct. 733, 735-36, 58 L.Ed. 1208 (1914) (recognizing admiralty jurisdiction over stevedore’s negligence claim against employer for injuries sustained while on navigable waters); Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 382, 38 S.Ct. 501, 503, 62 L.Ed. 1171 (1918) (“[N]o State has power to abolish the well recognized maritime rule concerning measure of recovery and substitute therefor the full indemnity rule of the common law.”); Union Fish Co. v. Erickson, 248 U.S. 308, 312-14, 39. S.Ct, 112, 113, 63 L.Ed. 261 (1919) (refusing to void maritime contract for failure to comply with state statutes of frauds); Kossick v. United Fruit Co., 365 U.S. 731, 742, 81 S.Ct. 886, 894, 6 L.Ed.2d 56 (1961) (same). Other cases run directly contrary to the authorities supra as they purport to hold that the exclusive remedy provision of a state workers’ compensation statute precludes an employee from asserting a- general maritime negligence claim against his employer. See Grant Smith-Porter Co. v. Rohde, 257 U.S. 469, 477, 42 S.Ct. 157, 158-59, 66 L.Ed. 321 (1922) (enforcing exclusive remedy provision of state workers’ compensation statute so as to bar any maritime claim); State Indus. Comm’n v. Nordenholt Corp., 259 U.S. 263, 276, 42 S.Ct. 473, 475, 66 L.Ed. 933 (1922) affirming award of workers’ compensation benefits to widow of longshoremen killed while unloading a vessel on navigable waters because employment contract was not maritime in nature); Millers’ Indem. Underwriters v. Braud, 270 U.S. 59, 64-65, 46 S.Ct. 194, 195, 70 L.Ed. 470 (1926) (concluding that state workers’ compensation statute’s “exclusive features abrogate the right to resort to the admiralty court which otherwise would exist”.); T. Smith & Son, Inc. v. Taylor, 276 U.S. 179, 181, 48 S.Ct. 228, 229, 72 L.Ed. 520 (1928) (Louisiana workers’ compensation law provided the exclusive remedy because the longshoreman was killed while standing on land and not on navigable waters); Alaska Packers’ Assoc. v. Industrial Accident Comm’n, 276 U.S. 467, 468-69, 48 S.Ct. 346, 346-47, 72 L.Ed. 656 (1928) (affirming award of workers’ compensation benefits as employee’s sole remedy against employer); Sultan Ry. & Timber Co. v. Department of Labor & Indus., 277 U.S. 135, 137, 48 S.Ct. 505, 506, 72 L.Ed. 820 (1928) (rejecting constitutional attack on workers’ compensation statute requiring companies engaged in maritime activities to pay into state fund); P.J. Carlin Constr. Co. v. Heaney, 299 U.S. 41, 44, 57 S.Ct. 75, 76, 81 L.Ed. 27 (1936) (refusing to allow general maritime law claim where workers’ compensation statute applied). Though there is an apparent rift in precedent, the Supreme Court harmonized its cases on the grounds that the state workers’ compensation statutes could only apply where the maritime tort involved matters of local concern which had remote or no relation to navigation or maritime commerce. See Baizley, 281 U.S. at 230-31, 50 S.Ct. at 307-08; Perini, 459 U.S. at 306, 103 S.Ct. at 641 (tracing history of “maritime but local” doctrine). In fact, the constant theme of these Supreme Court opinions is that the uniformity of admiralty law must be preserved and that state law may be applied only where it works no “material prejudice to the essential features of the general maritime law.” Baizley, 281 U.S. at 230, 50 S.Ct. at 307. That uniformity is not to be sacrificed .to accommodate state law is a fundamental premise of admiralty jurisdiction. See Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty § 6-58 to § 6-61 (2d Ed. 1975). In one of its earliest pronouncements on the interplay between federal and state law in the maritime context, the Supreme Court stated: One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states. The Lottawanna, 88 U.S. (21 Wall.) 558, 575, 22 L.Ed. 654 (1874). This is not to say that state law may play no part in the maritime arena; rather, the flip side of this principle is that “[w]ith respect to maritime torts ... the State may modify or supplement the maritime law ... when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation.” Just v. Chambers, 312 U.S. 383, 388, 61 S.Ct. 687, 691, 85 L.Ed. 903 (1941). For example, prior to its decision in Moragne, the Supreme Court consistently gave effect to state statutes providing a wrongful death action to the representatives of maritime workers killed during the course of employment. See id. at 388-89, 61 S.Ct. at 691-92; see also Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 321, 75 S.Ct. 368, 374-75, 99 L.Ed. 337 (1955) (leaving the regulation of marine insurance to the states). Our review of the Supreme Court’s admiralty jurisprudence assures us of the soundness of our earlier holdings in Thibodaux and King. As we noted supra, Thibodaux’s holding was driven by the Supreme Court’s decision in Pope which iterated the supremacy of federal admiralty rights over state law mandates where uniformity concerns were present. See Thibodaux, 580 F.2d at 846. Contrary to the Eleventh Circuit’s view, see Brockington, 903 F.2d at 1531, we do not read Thibodaux and King to be limited to wrongful death actions. We see no principled basis for distinguishing between an employee’s negligence claim against his employer for wrongful death and an employee’s negligence claim against his employer where the injury stops short of a fatality. The key factor is maintaining uniformity in admiralty law and preserving the rights granted to maritime workers, not the degree of harm the worker suffers. An action for negligence has long been a vestige of general maritime law; subjecting it to the ebbs and flows of state legislation would disrupt the essential features of admiralty law. See Stanley Morrison, Workmen’s Compensation and the Maritime Law, 38 Yale L.J. 472, 496 (1929). Fidelity to the Supreme Court’s and our own precedent requires that we hold that the exclusive remedy provision of the Louisiana Workers’ Compensation Act does not preclude Green from asserting his general maritime negligence claim, against Vermilion for the non-fatal injuries he sustained during the course of his employment while upon navigable waters. IV The judgment of the district court denying Green LHWCA benefits is AFFIRMED. The judgment of the district court dismissing Green’s unseaworthiness and general mari time negligence claims is REVERSED. We REMAND for proceedings not inconsistent with this opinion. . The parties agree that Green falls within the purview of the Louisiana Workers' Compensation Act. . In so ruling, we do not intimate on the merits of Green’s claim. . Apparently the court in Brockington only unearthed the line of Supreme Court cases giving preclusive effect to state workers' compensation statutes since it failed to cite any of the cases recognizing the superiority of general maritime tort claims over state remedies. See Brockington, 903 F.2d at 1532. Since our holding today relies heavily on this more venerable line of Supreme Court precedent which the Eleventh Circuit did not treat, we think the split with our sister circuit which we create today will be short-lived. . The court in Brockington relies heavily on Heaney for its holding, see Brockington, 903 F.2d at 1532, but we distinguish Heaney from the other cases in the Grant Smith line and the case at bar on the grounds that in Heaney the employee plaintiff did not assert negligence on the part of his employer. See Heaney, 299 U.S. at 44, 57 S.Ct. at 76. . The Supreme Court, tried to use the "maritime but local" doctrine to establish the boundaries of LHWCA and state workers' compensation coverage, but abandoned its efforts after such a distinction proved unworkable. See Davis, 317 U.S. at 253-56, 63 S.Ct. at 227-29. In Davis, the Supreme Court charted a new course by recognizing the existence of a "twilight zone” in which employees are simultaneously covered by both the LHWCA and the state workers’ compensation scheme. Id. at 256, 63 S.Ct. at 229. With the 1972 Amendments to the LHWCA, Congress extended the realm of concurrent jurisdiction shoreward. See Sun Ship, 447 U.S. at 720, 100 S.Ct. at 2436. . Our holding is consistent with the decision in Koninklyke Nederlandsche Stoomboot Maalschappy v. Strachan Shipping Co., 301 F.2d 741 (5th Cir.), cert. denied, 371 U.S. 921, 83 S.Ct. 288, 9 L.Ed.2d 230 (1962), where this court held that the exclusive remedy provision of the Texas Workers’ Compensation Act did not bar a ship owner’s indemnity suit against the stevedore for breach of warranty where the stevedore had made payments under the state workers' compensation scheme. As with his unseaworthiness claims, we make no comment concerning the merits of Green’s negligence claim.

DRUMMOND, District Judge. This is an action brought by the plaintiffs against [William] Prentice and his sureties for the recovery of moneys which the former had received upon sundry executions in favor of the United States, and which had come to his hands as marshal. The declaration only counts upon breaches of the bond, because the marshal has collected money which he never paid over. After the plaintiffs had introduced the various executions which are mentioned in the declaration, with the endorsements made on them by the marshal, the defendants offered an account of the items which they claimed as a set off in this suit, amounting to the sum of fourteen hundred dollar's, and then offered a transcript from the treasury department, to show that the items claimed as a set off were disallowed. The defendants insisted it was competent evidence for that purpose. By agreement, the whole transcript was admitted subject to the opinion, of. the court upon the effect to be given to it. The transcript shows a balance of more than $2,000 against the marshal, so that if the $1.400 were allowed as a set off in this case, there would still be, according to the transcript, a balance of more than $000 due the government. I am of the opinion that the account cannot be allowed as a set off, in this case. The government has not seen fit to sue the marshal on the account which contains these disallowed items, but has brought suit for money collected on divers executions. The government can properly object to this account in this suit, because it was presented by the marshal as a charge against the government, in another claim with which the subject matter of this suit has no concern. The defendants insist upon the set off here; because to the other claim, if suit is brought, they purpose pleading the statute of limitation. But this ground will not help them in this case. It would seem to be inequitable to suffer the defendants to avail themselves of an account which shows that so far from there being any set off for claims against the government, there is a balance against the marshal, independent of the amount in controversy here. Where a debtor has a set off equally applicable to two demands against him, he cannot select on which of the demands he will apply it; but the court will apply it according to the equity between the parties. See Tallmadge v. Fishkill Iron Co., 4 Barb. 392, which was a suit in equity, and which cites Collins v. Allen, 12 Wend. 356, which was a suit at law, where a party had two claims—a note and an account —against a man, and transferred the note overdue, he holding claims against the man sufficient to meet a set off which was attempted to be put in in a suit on the transferred note. It was held it was not a good set off, in that suit. But here there is great reason for saying that the marshal himself elected to apply the account offered, as a set off to another claim of the government against him, different from the one in suit here. And it would be manifestly unjust to allow him now to withdraw this account from that claim because it may be barred by the 4th section of the act of April 10, 1800 [2 Stat. 374]. The statute of the state can have no influence on this question. It is something which depends entirely upon the acts of congress. No state law can affect the question of set off, in suits by the government against its officers, because the rule on the subject must be uniform throughout the United States. U. S. v. Robeson, 9 Pet. [34 U. S.] 323. The courts have frequently allowed claims as set off against the government, which were not strictly legal, provided they were due ex equo et bono. U. S. v. McDaniel, 7 Pet. [32 U. SJ 1. It is to be‘regretted that there is no act of congress regulating set off in suits brought by the government. There are, however, various acts, such as the 3d and 4th sections of the act of March 3, 1797 (1 Stat. 514), and others— which imply that set off may be allowed. j Being of opinion that the defendants are not | equitably entitled to the set off they claim, the judgment must be for the plaintiffs.

KENNEDY, Circuit Judge. Plaintiffs brought this class action on behalf of “all male litigants” of the Cuya-hoga County, Ohio family court “who are, or will be subjected to wage assignments, garnishments or wage attachments” under procedures that are claimed to violate the due process and equal protection clauses of the Fourteenth Amendment, and the Federal Consumer Credit Protection Act. Defendants are judges (and all present and future judges) of that court, the Bureau of Support of that court and the Support Division of the juvenile division of the court; the ex-wife of one of the named plaintiffs, her attorney, and the law firm of her attorney. The District Court granted summary judgment to defendants on all counts. It found all damage claims stemming from the application of Ohio’s then-existing procedure, and pursuant to court orders, were barred by the doctrine of judicial imu-nity. Injunctive relief concerning future application of the procedure would not be barred by immunity, but was rendered moot by a subsequent repeal of the statute and its replacement by new procedures. However, plaintiffs’ request to vacate orders issued pursuant to the statute whose constitutionality they challenged was neither moot nor barred by immunity. As to these claims, the District Court found no violation of plaintiffs’ constitutional rights. In addition, the District Court found no merit in plaintiff Joseph Agg’s claim of conspiracy. Plaintiffs appeal. Defendants Carr and Madorsky, Katz & Carr cross-appeal the District Court’s denial of their motion to dismiss the case for lack of subject matter jurisdiction. We affirm the judgment of the District Court in all respects. I. Subject Matter Jurisdiction We turn first to the jurisdictional question raised on the cross-appeal. The cross-appellants argue that the “domestic relations exception” to federal jurisdiction precludes jurisdiction. At its core, that doctrine concerns federal jurisdiction based on diversity. The plaintiffs in this case sued under 42 U.S.C. § 1983 and claimed deprivation of federal constitutional rights. They also claimed that Ohio’s procedures were contrary to a federal law, the Federal Consumer Credit Act, and thus invalid under the supremacy clause. These claims were not all so completely devoid of merit that we can say that they were added merely to obtain federal jurisdiction. Since they present substantial federal questions, jurisdiction in the District Court was therefore proper under 28 U.S.C. § 1331 or § 1343. The cross-appellants argue that the determination of the civil rights claims necessarily required the District Court to decide whether plaintiff Joseph Agg was financially able to make the payments that the Ohio court had ordered and that such a decision resolves “state law matters within the scope of the domestic relations exception,” Hooks v. Hooks, 771 F.2d 935, 942 (6th Cir.1985). We believe that this view represents a misunderstanding shared by cross-appellants and appellants. An incorrect decision by the Ohio court does not constitute a deprivation of due process of law that the federal courts must redress. The proper course to correct a mistake is by appeal. It is only the claim that Ohio’s procedures do not allow a vindication of plaintiffs’ rights that states a cognizable due process violation. The resolution of that claim did not require the District Court to decide “parent-child, domestic relations or custody disputes [or] adoption matters subject to state law and state court disposition,” id. The claim that the state’s method of determining and enforcing child support is unconstitutional and contrary to federal law is not identical to a claim that a particular support order is too high. The domestic relations exception concerns the second claim; the federal courts must properly exercise jurisdiction over the first. II. Claims Under the Federal Consumer Credit Act The Act generally prohibits garnishments above 25% of income, 15 U.S.C. § 1673. The District Court, assuming that the Act creates a private right of action, found that these attachments are garnishments for the purposes of the Act. For the purpose of our analysis of this issue, we make the same assumption. The Act makes an exception for support orders, 15 U.S.C. § 1673(b)(1)(A), which may reach 50% of income, 15 U.S.C. § 1673(b)(2)(A). There is no allegation that this proportion was exceeded here. In order for the exception to apply, the support order must be issued by a court of competent jurisdiction, there must be substantial due process, and the order must be subject to judicial review. The District Court found that these conditions were met, and plaintiffs’ claims concerning the jurisdiction of the Ohio court and the availability of judicial review are wholly without merit. See Ohio Revised Code §§ 2301.34 (“default” defined as failure to comply with terms of support order issued by court of common pleas); 3109.07 (support orders appealable to the court of appeals). The question of whether the Ohio procedures violated the Act therefore depends on whether there was substantial due process, an issue discussed below. III. Conspiracy Claim Plaintiff Joseph Agg claims a conspiracy to deprive him of his civil rights on the part of four defendants: his ex-wife Donna Agg, her attorney Leonard Carr, Carr’s law firm, and Judge Timothy Flanagan. The factual background of this claim, which is also the basis of Agg’s due process claim, was summarized by the District Court: On May 21, 1976 the Court of Common Pleas of Cuyahoga County, Ohio entered a judgment ordering plaintiff Agg to pay child support to his ex-wife, defendant Donna Agg. The order was based on the stipulation of the parties. Following a number of hearings on orders to show cause, plaintiff Agg was first found in contempt of court for non-payment of the ordered support in 1981. His jail sentence was suspended on the condition that he comply with the court’s order to pay the support. At that time his arrearage was $20,725. Twice in 1982 he was again sentenced to a jail term for contempt of the court’s order to pay support but the jail term was again suspended on the condition that he make the required payments. Following a hearing, Referee Basie recommended on May 9, 1983 that plaintiff again be cited for contempt of court and that any jail term be suspended if plaintiff paid before May 20, 1983. That order was adopted by Judge Flanagan on June 9, 1983. Plaintiff filed no objections to the referee’s recommendation and did not appeal Judge Flanagan’s order. Plaintiff was represented by counsel throughout all proceedings. On July 28, 1983 the court ordered plaintiff Agg to appear and show why he should not be held in contempt of court. On October 11, 1983 defendant Carr and plaintiff Agg’s attorney conferred in private with Judge Flanagan. Following this conference, plaintiff Agg agreed to sign a voluntary wage order and a voluntary finding of contempt with a three day suspension on the condition that he make payment. On November 8, 1983 the court issued a capias against plaintiff Agg for failure to comply with this order. He failed to present himself to the court and was arrested on January 20, 1984. He was in jail from that date until January 23, 1984. Joint Appendix at 26-27 (emphasis added). This conspiracy claim thus rests on a meeting held between Flanagan, Carr, and Joseph Agg’s counsel. The meeting oc curred while Joseph Agg waited outside. According to Agg, his counsel came out to him and urged him to sign the voluntary-wage order and contempt finding in order to avoid imprisonment and he reluctantly signed for that reason. He claims that the subsequent order of imprisonment was unconstitutional and unlawful. He neglects to mention that the contempt order suspended the sentence on the condition that Agg pay $2,000.00 of his arrearage “forthwith,” which he failed to do. Like the District Court, we are unable to see how these facts can support a conspiracy claim against anyone. “A civil conspiracy is an agreement between two or more persons to injure another by unlawful action,” Hooks, 771 F.2d at 943-44 (emphasis added). If Agg’s claim is that he got bad advice from his attorney about whether to sign the voluntary agreement, he should sue for malpractice. Since Joseph Agg’s attorney has not been sued, and there is no allegation that he was part of the alleged conspiracy, it appears that plaintiffs’ theory is that the defendants conspired to deprive Agg of his constitutional rights by using Ohio law to get his money and have him imprisoned. But accepting Joseph Agg’s version of events as true, it still appears that defendants Donna Agg, Carr, and the law firm were trying to enforce what they had every reason to believe was a lawful order according to established state procedures, which they were justified in also believing lawful. Judge Flanagan, of course, is absolutely immune from suit for these acts. There is no allegation that defendants falsely claimed (then or at any other time) that Joseph Agg had not paid when he had. There is no allegation that defendants Donna Agg, Carr, or the law firm ever misled the court in any way about Joseph Agg’s actions or inaction. We note the argument of Donna Agg’s counsel that in addition to the difficulties she has had for some dozen years in collecting the child support due her from her ex-husband, she has now been put to the additional expense of defending this suit. We believe the conspiracy claim is so far from being based on a plausible legal theory that we order Joseph Agg to pay the attorney fees incurred in defending this appeal by defendants Donna Agg, Leonard Carr, and Mandorsky, Katz & Carr. IV. Equal Protection Claim This is essentially a “reverse discrimination” claim, based on the disparate impact on men of Ohio’s child support procedures. A facially neutral law does not violate the equal protection clause merely because it has a disproportionate impact; the disproportionate impact must be traced to a purpose to discriminate. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). There may be an unconstitutional purpose “when a neutral law has a disparate impact upon a group that has historically been the victim of discrimination,” Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979). The District Court disposed of this claim on the basis that “plaintiffs have shown no adverse effects upon a group that has historically been a victim of discrimination.” It is a commonplace of constitutional law that groups well represented in the political process are unlikely to use that representation to their own disadvantage and that laws which seem to disfavor those groups do not require the same scrutiny from the courts as laws which disfavor “discrete and insular minorities,” See United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938). Even if we were to apply the same level of scrutiny to a statute that had a disparate impact on men as to one that had a dispar ate impact on women, we would find no discriminatory purpose in the Ohio law. It is fairly obvious that the disparate impact on men, insofar as we may characterize the law’s effect in that way, is a result of the fact that men generally have higher incomes than women, and that society wants some of that income used to support their children. Ohio’s interest in the support of children is an important and substantial one, and the means Ohio has chosen to accomplish that interest are closely related to its goal. Ohio, like other states, has attempted to redress the unequal burden of supporting the children of divorced parents between the custodial and non-custodial parents, according to their ability to pay. Under Feeney, we have no doubt that the Ohio child support procedure does not violate the equal protection clause of the Fourteenth Amendment. V. Due Process Claims These are the heart of plaintiffs’ argument. The District Court found that the due process requirements of notice and an opportunity to be heard were met by the Ohio procedure. Plaintiffs seem to claim that the wage assignment system affords them no chance to argue that they are unable to afford to pay the amounts that have been ordered. Insofar as their argument is construed this way, it is plainly incorrect. It appears that every support order was based on a referee’s specific factual findings concerning the ability to pay. Plaintiffs were represented by counsel at these proceedings and could (and some did) file objections to the findings, which were ruled on by a judge. As we have noted, these rulings were subject to appellate review, Ohio Rev.Code § 3109.07. Indeed, plaintiff Carl Zauner did appeal such a ruling. The payment orders all made it clear that a failure to pay would result in a wage assignment order. This order could be issued on the basis of an affidavit of the person to whom the support was due (typically the former wife), and without further proceedings. Plaintiffs claim, among other things, that this allows garnishment without the ability to argue that some change in circumstances has caused their failure to pay. (None of these plaintiffs contest the truth of the affidavits stating that they had not paid.) It should be clear that someone under a court order to perform some act who, for whatever reason, seeks a modification of that order, has the responsibility of seeking that modification. That is, the plaintiffs here cannot simply stop paying court-ordered support and then claim, without seeking modification of the support order as a constitutional challenge to a wage assignment, that they had a good reason for doing so. If their claim was that the support order was too high, it should have been raised at the time the order was issued. See United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983). A present inability to pay may be raised as a defense to the contempt citation, but the contemnor may constitutionally be required to bear the burden of production on his ability to comply, id.; see also Hicks v. Feiock, — U.S. -, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988). The remaining questions then concern whether the Ohio procedure which allowed a wage assignment order to issue without a hearing, but based solely on the affidavit of the party to whom the support payment was due, was in itself a violation of the due process clause. We note first that plaintiffs Agg and Evans signed voluntary wage assignment orders. Since the wage assignments in the case of these two plaintiffs were made pursuant to these agreements rather than to the statutory procedure, they have no standing to claim that the procedure deprived them of any rights. The remaining plaintiffs, Zauner and Johnson, have not claimed that the affidavits that were the basis of the wage assignment were incorrect, but only that they were denied notice and a “pre-deprivation hearing.” It is therefore apparent that, even if they were entitled to procedures that they did not receive, the result of those procedures would have been the same. Therefore, their relief, even if they were to prevail, would be limited to nominal damages. See Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). However, we believe plaintiffs have ignored the importance of the distinction between pre-judgment and post-judgment garnishments. The deprivation of plaintiffs’ property, for Fourteenth Amendment purposes, was accomplished by the judgment, not the garnishment. That is, the plaintiffs did have extremely extensive pre-deprivation hearings. The judgment itself gave plaintiffs notice that their wages were subject to assignment if they did not comply. Endicott Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288 (1924). While Endicott Johnson is over sixty years old, and there have since been many developments in society’s and the Court’s view of due process, we believe the case is still good law. Plaintiffs cite Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) to support the requirement of another hearing before the wage assignment order can be issued. All these cases, however, concern pre-judgment garnishments. Their common theme is that it is fundamentally unfair to deprive someone of their property, or the use of their property for some period, before deciding that the deprivation is legally justified. The present case concerns garnishment orders issued only after—indeed long after—a court has issued a judgment after according all parties notice, the opportunity to be heard, to be represented by counsel in a full adversary hearing, to object to findings, and to appeal. It is clear that the process by which the judgments were delivered was constitutional. Plaintiffs were under a legal obligation to hand over their property pursuant to those judgments. They had actual notice of the consequences of their failure to do so. When the court had grounds to believe they were violating that legal obligation, it could, consistently with the Constitution, take steps through the transfer of their property to force them to comply. VI. State Claims The District Court declined to exercise jurisdiction over Joseph Agg’s pendent state claims. This decision was correct. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (state claims should be dismissed if federal claims are dismissed before trial). Accordingly, the judgment of the District Court is AFFIRMED. . The proportion may be still greater if the person subject to the support order is not also supporting a spouse or dependent child apart from the spouse or child involved in the support order, 15 U.S.C. § 1673(b)(2)(B). . As we have noted, the challenged procedures have since been altered by legislative action. We are concerned with the provisions of the Ohio Revised Code in effect at the time the events of which plaintiffs complain occurred, and it is to those provisions that we refer here and in the discussion below. . Agg does claim that they knew he could not pay, and tried to enforce the order anyway. However the determination of Joseph Agg’s ability to pay was not made by them but by the court on the recommendation of the referee. Since there is no claim, that defendants gave the referee or the court false information, any errors of fact made by the court cannot be ascribed to the actions of defendants. We discuss the due process aspect of this question below. . Joseph Agg seems to argue that the fact that he never personally saw Judge Flanagan at the time of the October 11, 1983 meeting described above was a violation of due process. Agg's counsel represented him throughout those proceedings just as Agg’s present counsel represented him before this Court. The judgment of this Court will not violate due process because Agg was not personally present, and we would be fully justified in treating his counsel’s statements as those of Agg himself. . It may be true that these plaintiffs signed as a means of purging themselves of contempt, and in that sense were “coerced.” But this is the same sort of "coercion” faced by a negligent defendant who settles rather than risk a more severe judgment, or a criminal defendant who chooses to plead guilty rather than to put the government to its proof. . The total amount due from plaintiffs would have been the same even if the wage assignment order had issued later. Therefore this is not analogous to the more typical “pre-deprivation hearing” claim, which involves the termination of wages and other benefits. We express no opinion as to the remedy appropriate in those cases. . We also affirm the District Court’s dismissal of plaintiffs’ Eighth Amendment claims. Even if that Amendment had application outside the criminal context, a three-day jail sentence, which could be ended by complying with a court order, seems neither barbaric nor so out of proportion to the cause of its imposition as to be "cruel and unusual.” . We do not necessarily disagree with the analysis of the dissent on the issue of claim preclusion. However, this is an affirmative defense which does not appear to have been pled and which has not been advanced on appeal. CONTIE, Senior Circuit Judge, dissenting. In my opinion, this case should be remanded to the district court for consideration of the issue of claim preclusion. Accordingly, I would not reach the merits of this case on appeal. For this reason, I respectfully dissent. Several courts sua sponte have raised the issue of res judicata or claim preclusion despite Federal Rule of Civil Procedure 8(c) which states that a party should plead res judicata as an affirmative defense. See, e.g., McClain v. Apodaca, 793 F.2d 1031, 1032-33 (9th Cir.1986) (bankruptcy court sua sponte raised issue of res judicata; affirmed on appeal); Minneapolis Auto Parts Co. v. City of Minneapolis, 739 F.2d 408, 409 & n. 2 (8th Cir.1984) (claim preclusion raised for first time on appeal; cáse certified back to district court to consider the effect of res judicata ); Alyeska Pipeline Serv. Co. v. United States, 688 F.2d 765, 771, 231 Ct.Cl. 540 (1982) (Court of Claims sua sponte raised issue of claim preclusion); American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir. Unit A. 1981) (res judicata raised sua sponte by court of appeals); Hicks v. Holland, 235 F.2d 183 (6th Cir.) (per curiam) (district court sua sponte raised issue of res judicata; affirmed on appeal), cert. denied, 352 U.S. 855, 77 S.Ct. 83, 1 L.Ed.2d 66 (1956). Raising the issue of res judica-ta or claim preclusion sua sponte in appropriate cases, “insures the finality of decisions, conserves judicial resources, and protects litigants from multiple lawsuits.” McClain, 793 F.2d at 1032. For these reasons, courts raise res judicata sua sponte despite the technical pleading requirements of Rule 8(c). See American Furniture Co., 721 F.2d at 482. Wright and Miller predict that as courts become increasingly concerned with their interests in forestalling repetitive litigation, this action will become more common. 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4405 pp. 33-34 (1981). Although appellees in the instant case have not pled res judicata as an affirmative defense, I would construe their argument before this court that the Ohio courts would have considered appellants’ federal constitutional claims if presented with them as raising the issue, or I would raise the issue of claim preclusion sua sponte. In Migra v. Warren City School District Board of Education, 465 U.S. 75, 85, 104 S.Ct. 892, 898, 79 L.Ed.2d 56 (1984), the Supreme Court held that 42 U.S.C. § 1983 does not override state preclusion law and guarantee the petitioner a right to proceed to judgment in state court on his state claims and then turn to federal court for adjudication of his federal claims. Migra involved the preclusion of claims made by the plaintiff. Claim preclusion rules addressed to plaintiffs, however, are mirrored by preclusion rules addressed to defendants. 18 C. Wright, A. Miller, & E. Cooper, supra, § 4414 p. 108. The Supreme Court has affirmed the application of preclusion or res judicata in a context very similar to that involved in the instant case. In Mertes v. Mertes, 350 F.Supp. 472 (D.Del.1972), aff'd mem., 411 U.S. 961, 93 S.Ct. 2141, 36 L.Ed.2d 681 (1973), an ex-husband brought a section 1983 action to enjoin enforcement, operation, and execution of a state property division statute on constitutional grounds. The plaintiff in the section 1983 action had been the defendant in the state court proceedings. He had not raised a constitutional defense in the trial court, but he did attempt to raise constitutional issues in an appeal to the Delaware Supreme Court. The Delaware Supreme Court affirmed the lower court decision and refused to consider the constitutional question because that issue had not been raised below and was not a question of such public importance as to be entertained for the first time on appeal. Id. at 473. The three-judge district court held that it was barred from reaching the merits of the constitutional claim by the doctrine of res judicata. Id. at 474. “[R]es judicata bars this court from litigat ing the constitutional claim now raised by Thomas which could have been litigated as a defense in the state court against the judgment that was entered in Yictorine’s favor.” Id. at 475. Res judicata also barred litigation against defendants who were not parties in the previous action because there was a close or significant relationship between successive defendants. Id. In that case, the additional defendants were the presiding superior court judge and the commissioner appointed to convey the ex-husband’s interest in some jointly held real estate. Id. at 473-74. In Vinson v. Campbell County Fiscal Court, 820 F.2d 194 (6th Cir.1987), this court refused to apply claim preclusion to bar a section 1983 action. In that case, although the section 1983 plaintiff had an opportunity to litigate the issue of her allegedly false arrest and imprisonment and/or malicious prosecution and/or abuse of process at the state court hearing, her section 1983 action was not the same cause of action as the state’s criminal case against her. Id. at 197. The instant case is distinguishable from Vinson since the state court proceedings in the instant ease were civil rather than criminal. See Hicks v. Feiock, — U.S. -, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988) (holding that if the relief provided in contempt proceedings is imprisonment, it is civil contempt if “ ‘the defendant stands committed unless and until he performs the affirmative act required by the court’s order.’ ” (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911))). Therefore, the fact that claim preclusion does not extend from criminal prosecutions to civil actions, see 18 C. Wright, A. Miller, & E. Cooper, supra, § 4474 p. 748, does not prevent its application here as it did in Vinson. For these reasons, I would remand this case to the district court to consider the issue of claim preclusion. Furthermore, the district court’s holding that 15 U.S.C. § 1673 creates a private right of action is highly suspect. Section 1673 is part of Subchapter II of the Consumer Credit Protection Act. At least three circuits have held that there is no private right of action under Subchapter II of this act. See Snapp v. United States Postal Service, 664 F.2d 1329 (5th Cir.1982); McCabe v. City of Eureka, 664 F.2d 680 (8th Cir.1981); Le Vick v. Skaggs Cos., 701 F.2d 777 (9th Cir.1983). Cf. Western v. Hodgson, 494 F.2d 379, 380 (4th Cir.1974) (expressly refusing to reach the question whether a private right of action exists because the facts of that case would not merit relief in any event). In reaching their holdings, these courts have noted that section 1676 (also part of Subchapter II) provides that “ ‘the Secretary of Labor ... shall enforce provisions of this Subchap-ter.’ ” Le Vick, 701 F.2d at 779 (quoting 15 U.S.C. § 1676). Ellis v. Glover & Gardner Construction Co., 562 F.Supp. 1054 (M.D.Tenn.1983), the case cited by the district court in support of its position, relies in part on the following reasoning: “The Sixth Circuit has at least tacitly recognized a private right of action [under Subchapter II] in remanding for further factual findings an action instituted by a plaintiff who sought reinstatement and other relief for wrongful discharge in violation of 15 U.S.C. §§ 1671, et seq.” Id. at 1057 (citing Nunn v. City of Paducah, 71 L.C. § 32,890 (6th Cir.1972)). No Sixth Circuit case has addressed the issue of whether there exists a private right of action under Subchapter II of the Consumer Credit Protection Act, cf., Smeyres v. General Motors Corp., 820 F.2d 782 (6th Cir.1987) (per curiam) (holding that there is no private right of action under 15 U.S.C. § 1664, Subchapter I, Part C of the Consumer Credit Protection Act), and I do not believe that Nunn is controlling on this issue. If this issue were squarely before the court, I would join the other circuits which hold that Subchapter II of the Consumer Credit Protection Act does not confer a private right of action. As I have indicated above, however, this case should be remanded to the district court for consideration of the issue of claim preclusion. For the foregoing reasons, I respectfully dissent. . The Supreme Court has explained that the term res judicata, when used in a narrow sense, is synonymous with claim preclusion. Migra, 465 U.S. at 77 n. 1, 104 S.Ct. at 894 n. 1.

OPINION SILER, Circuit Judge. This is a suit for habeas corpus relief, pursuant to 28 U.S.C. § 2254, filed on behalf of Wilford Lee Berry, Jr., who has received a death sentence for murder from the State of Ohio. The petitioners are Jennie Franklin, his birth mother, and Elaine Quigley, his sister, acting as next Mends for Berry. Suit was brought against Rodney L. Francis, the Warden of the Corrections Medical Center, where Berry is currently incarcerated. Upon the completion of two direct appeals through the Ohio state court system, the Ohio Supreme Court set an execution date for March 3, 1998. Although Berry asserts that he waives his legal rights for further appeals, the petitioners filed this claim for relief a short time before the execution date. The district court granted a temporary stay of the execution. For reasons stated hereinafter, we will vacate the stay of execution. I. BACKGROUND Berry was convicted in 1990 for the aggravated murder during the robbery of his employer, Charles Mitroff, the owner of a bakery in Cleveland, Ohio. An accomplice, Anthony Lozar, shot Mitroff in the torso with an SKS assault rifle. When Mitroff fell to the floor, he looked at Berry and said, “You shot me.” When he begged for Berry to call for help, Berry shot Mitroff in the head. The two men took Mitroffls wallet and delivery van and buried the body. More details of the crime are outlined in State v. Berry, 72 Ohio St.3d 354, 650 N.E.2d 433 (1995), cert. denied, 516 U.S. 1097, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996). After a trial by jury, Berry was sentenced to death. The conviction and sentence were affirmed on appeal by the Ohio Court of Appeals in State v. Berry, No. 60531, 1993 WL 425370 (Oct. 21, 1993), and the Ohio Supreme Court in Berry, 72 Ohio St.3d 354, 650 N.E.2d 433. Throughout his appeals, Berry repeatedly indicated his preference to waive his rights on appeal. He wrote to his attorneys and to other officials asking that he be allowed to waive his appellate rights and to receive the death penalty. Thereafter, in 1995, the State asked the Ohio Supreme Court to appoint a psychiatrist to evaluate Berry’s competence to waive collateral review of his sentence. The court granted the motion, State v. Berry, 74 Ohio St.3d 1470, 657 N.E.2d 511 (1995), and appointed Dr. Phillip J. Resniek, a psychiatrist, to evaluate Berry’s competence under the following standard: A capital defendant is mentally competent to abandon any and all challenges to his death sentence, including appeals, state-post conviction collateral review, and federal habeas corpus, if he has the mental capacity to understand the choice between life and death and to make a knowing and intelligent decision not to pursue further remedies. State v. Berry, 74 Ohio St.3d 1504, 659 N.E.2d 796 (1996). In directing Dr. Resniek, the court cited, inter alia, Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976); and Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966). After Dr. Resniek submitted his assessment to the Ohio Supreme Court, the matter was remanded to the state trial court (Court of Common Pleas) to hold an evidentiary hearing on the issues of competency and waiver. Upon remand, the Ohio trial court appointed Dr. Robert Alcorn, another psychiatrist, who later submitted his report. Counsel for Berry called Dr. Sharon Pearson, a psychologist. At the hearing on competency, Drs. Resniek and Alcorn found Berry to be competent to waive his rights. Drs. Resniek and Alcorn diagnosed a mixed personality disorder with schitzotypal, borderline and antisocial features. However, Dr. Pearson found that Berry was not competent. She concluded that Berry suffered from schitzotypal disorder, a rigid thought process, a tendency toward extreme isolation and withdrawal, and a tendency to have psychotic episodes under stress. The Public Defender also called Dr. Jeffrey L. Smalldon, a psychologist, who never examined Berry and had no opinion concerning his competence. He testified generally regarding schitzotypal personality disorder and its relevance in determining competence. After hearing the evidence, the trial court on July 22, 1997, found that while Berry suffers from a mixed personality disorder with schitzotypal, borderline and antisocial features, he “ ‘is competent to forgo any and all further legal challenges.’ ” State v. Berry, 80 Ohio St.3d 371, 686 N.E.2d 1097, 1099 (1997). It further found that although Berry had no mental disease, his mixed personality disorder “does not prevent him from understanding his legal position and the options available to him, or from making a rational choice between those options.” Id. In making the determination that Berry was competent, the trial court found that the testimony of Drs. Resniek and Alcorn was more credible and convincing than Dr. Pearson’s conclusion that Berry was not competent. Id. The Ohio Supreme Court affirmed the trial court’s determination of Berry’s competence and further found that the trial court followed the criteria set out in Rees, 384 U.S. at 314, 86 S.Ct. 1505: “Whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Berry, 686 N.E.2d at 1101. Between the time that the trial court ruled on Berry’s competency and the time that the Ohio Supreme Court affirmed, Berry was involved in an incident at the penal institution where he was then being held, on September 5, 1997. He was assaulted by other inmates during a riot. His jaw and facial bones were broken, resulting in surgery and metal implants to repair the damage. He also hurt his right hand and had several broken ribs and bruised his internal organs. He was rendered unconscious by the beating. None of this information related to the beating was considered by the psychiatrist or psychologist who had examined Berry. The Public Defender’s request for an additional evaluation after the beating was denied by the Ohio Supreme Court. State v. Berry, 80 Ohio St.3d 1402, 684 N.E.2d 335 (1997). Counsel has never filed an affidavit from a treating physician that this injury caused brain damage to Berry. Thereafter, the Ohio Supreme Court set an execution date, and the petitioners applied for a writ of habeas corpus. The district court held that it was not bound by the determination of competency from the Ohio Supreme Court, because the Ohio Supreme Court did not properly interpret the Rees ease. When the Ohio Attorney General appealed to this court to set aside the stay of execution granted by the district court, we declined to rule on the motion until after a hearing on March 24, 1998. On March 3, 1998, the Warden applied to the United States Supreme Court to vacate the stay of execution, but that was denied. After hearing argument of counsel in court, we now rule on the motion to set aside the stay of execution. II. JURISDICTION The petitioners have moved the court to dismiss the appeal by the Warden for want of jurisdiction. First, they assert that there is no final order from which the appeal is taken, as the district court has not entered an order determining the competency of Berry nor whether his mother and sister can proceed as next friends. See In re Moser, 69 F.3d 695 (3d Cir.1995). However, we have jurisdiction to consider this matter, as the effect of a stay is injunctive in nature. Therefore, there is jurisdiction under either 28 U.S.C. § 1292(a)(1) or the All Writs Act. In re Moser, 69 F.3d 690, 691 (3d Cir.1995); see In re Sapp, 118 F.3d 460, 464 (6th Cir.1997); In re Parker, 49 F.3d 204, 213 (6th Cir.1995). The petitioners have filed another motion to dismiss, primarily on the basis that the United States Supreme Court denied the application to vacate the stay of execution. They argue that this denial constitutes res judicata or the law of the case. Second, they assert the case is moot, due to the fact that there is currently no execution date set for Berry. These arguments have no merit. First, the denial of the application to set aside the stay is not a ruling on the merits of the case. See Hughes Tool Co. v. Trans World Airlines, 409 U.S. 363, 365 n. 1, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973). Second, the appeal is not moot, because the stay currently precludes the Ohio Supreme Court from setting another execution date. If the stay is lifted, then the state could set another execution date. Therefore, finding that this court has jurisdiction, we proceed to rule on the merits. III. MERITS As the district court observed, the Supreme Court has stated: We realize that last minute petitions from parents of death row inmates may often be viewed sympathetically. But federal courts are authorized by the federal habeas statutes to interfere with the course of state proceedings only in specified circumstances. Before granting a stay, therefore, federal courts must make certain that an adequate basis exists for the exercise of federal power. Demosthenes v. Baal, 495 U.S. 731, 737, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990). In this case, the court must first decide whether the petitioners have standing to proceed as next friends. If they do not, then Berry may waive his legal rights. In order for the petitioners to proceed as next friends, they must show that Berry is unable to litigate his own cause due to mental capacity and that the next friend is dedicated to the best interests of Berry. Whitmore v. Arkansas, 495 U.S. 149, 163-65, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Here, there is no dispute that the mother and sister are dedicated to the best interests of Berry. However, there is a conflict on whether Berry is incompetent to proceed. The burden is on the next friend “clearly to establish the propriety of his status and thereby justify the-jurisdiction of the court.” Id. at 164, 110 S.Ct. 1717. The district court recognized these criteria but found that the Ohio Supreme Court did not follow the competency requirements from Rees, 384 U.S. at 314, 86 S.Ct. 1505. The district court concluded that the language from Bees suggests that a competency decision “necessarily requires two inquiries.” It found that the court must first determine the capacity of the person in question. Then, if the person has the capacity to make the decision, the court must proceed to determine whether the person is “suffering from a mental disease, disorder, or defect which may substantially affect his capacity.” Id. We realize the difficulty the district court had in interpreting Rees due to the expedited nature of the proceeding, but we disagree with its conclusion. The Ohio Supreme Court properly followed the test of competence from Rees. The test is not conjunctive but rather is alternative. Either the condemned has the ability to make a rational choice with respect to proceeding or he does not have the capacity to waive his rights as a result of his mental disorder. This conclusion is in line with all of the Supreme Court decisions and other court decisions since Reeswas decided in 1966. In Demosthenes, 495 U.S. at 734, 110 S.Ct. 2223; Whitmore, 495 U.S. at 165, 110 S.Ct. 1717; and Gilmore, 429 U.S. at 1016-17, 97 S.Ct. 436, the Court has asked only if the waiver was knowing, intelligent and voluntary. The best explanation of the Rees test is found in Smith v. Armontrout, 812 F.2d 1050 (8th Cir.1987), relied upon significantly by the Ohio Supreme Court in its decision. In Smith, experts agreed, and the district court found, that Smith suffered from mental disorders. Id. at 1055. However, some experts concluded that he was incompetent because of his mental disorders and others disagreed, finding that he was competent to waive his rights to further appeal. Id. As the Smith ease decided: [W]e think it very probable, given the circumstances that perforce accompany a sentence of death, that in every case where a death-row inmate elects to abandon further legal proceedings, there will be a possibility that the decision is the product of a mental disease, disorder, or defect. Yet, Rees clearly contemplates that competent waivers are possible ... and there is little point in conducting a competency inquiry if a finding of incompetency is virtually a foregone conclusion. Id. at 1057 (citation omitted). This is the same conclusion that is implicitly reached in Lonchar v. Zant, 978 F.2d 637 (11th Cir.1992); and Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir.1985), where the defendant in both cases was suffering from a mental disorder but was able to rationally choose between his options of pursuing an appeal or waiving further legal rights. Therefore, pursuant to 28 U.S.C. § 2254(d), because the Ohio Supreme Court decision was not contrary to or did not involve an unreasonable application of clearly established federal law, we are bound by the determination of the Ohio Supreme Court that Berry was competent. Because he is competent, the petitioners herein do not have standing to pursue a writ of habeas corpus on Berry’s behalf. Thus, the district court did not have jurisdiction to entertain the petition and the stay should not have been granted. In conclusion, the stay is vacated, and this matter is remanded to the district court for further proceedings consistent with this decision.

PER CURIAM: The Government appeals from denial of its motion to reopen an order and judgment of naturalization. The ground of the motion was that appellee made a false statement of material fact at the time of filing his petition for naturalization. The Immigration and Nationality Act of 1952 provides two methods by which the Government may attack a judgment of naturalization that it believes was wrongfully obtained. Section 340(a), 8 U.S.C. § 1451(a) (1958), authorizes a plenary action to set aside a naturalization order “procured by concealment of a material fact or by wilful misrepresentation * * * ” Under section 340(j), 8 U.S.C. § 1451(j) (1958) the summary procedure of Rule 60(b) may be invoked to reopen a naturalization judgment within one year after it was entered if the judgment was obtained through fraud, misrepresentation, or other misconduct of an adverse party. In his opinion denying the government's motion to proceed under Rule 60(b), the district judge noted that the difference in the procedures under the two sections affected substantial rights of the petitioner: “[If the motion under Rule 60(b) were granted], the parties would be placed in their relative positions just prior to the granting of the order or judgment of naturalization. The petitioner would be obliged to prove his qualifications for citizenship. [If the Government proceeded under section 340(a)], it would then become the Government’s burden to prove the fraud it alleges here by a fair preponderance of the credible testimony. The Government would be required to sustain its burden by clear, unequivocal and convincing proof.” Because he believed that the value of American citizenship should not be debased by summary suspension, the district judge concluded that the Government should normally seek cancellation of citizenship in a plenary suit — at least in the absence of a showing of circumstances making summary relief necessary to protect particular Government rights. Section 340(j) is a grant of power to the court to reopen its naturalization judgments and is stated in permissive terms. It is well settled that motions for relief under Rule 60(b) are addressed to the discretion of the court. Fischer v. Dover S. S. Co., 218 F.2d 682 (2d Cir. 1955); England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960). We think that although the matters discussed by Judge Mishler did not require denial of the motion, it was appropriate for the district judge to consider them in relation to the exercise of his discretion. Affirmed.

BOWMAN, Chief Judge. This case is before us on remand from the United States Supreme Court. See Apker v. United States, — U.S. -, 118 S.Ct. 2339, 141 L.Ed.2d 710 (1998), vacating and remanding 101 F.3d 75 (8th Cir.1996), opinion vacated and mandate recalled, 156 F.3d 1344 (8th Cir.1998). We are instructed to further consider the 28 U.S.C. § 2255 motion of Gary Apker in light of Holm v. United States, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998), in which the Government conceded that a § 2255 motion alleging a Bailey error amounted to a constitutional claim for the purposes of 28 U.S.C. § 2253(c)(2). Apker is in federal custody pursuant to his conditional guilty plea and resulting conviction on the charge of using or carrying a firearm equipped with a silencer or muffler during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c). He appeals from the judgment of the District Court dismissing his § 2255 motion for procedural default. Recognizing that this case rests at the confluence of recent Supreme Court decisions, we reverse the judgment of the District Court and remand the case for further proceedings consistent with this opinion. We begin with only a brief description of the criminal activity that resulted in Ap-ker’s eventual plea of guilty to a single violation of § 924(c), and then move to the procedural history of the case. More thorough recitations of the facts surrounding this case are reported at United States v. Friend, 101 F.3d 557 (8th Cir.1996), and United States v. Lucht, 18 F.3d 541 (8th Cir.1994). A lengthy investigation of a large-scale conspiracy to distribute methamphetamine involving Apker and other members of the Omaha Chapter of the Hell’s Angels Motorcycle Club culminated in October 1990 with the execution of search warrants at the homes of Apker and other club members. The search of Apker’s home revealed a hidden safe containing a firearm equipped with a silencer, ten pounds of methamphetamine, a large amount of cutting agent, and approximately $200,000 in cash. A thirty-three-count superseding indictment charged Apker and his co-defendants with conspiring to distribute and possess with the intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment also alleged numerous related crimes, including that Ap-ker used or carried a firearm equipped with a silencer or muffler during and in relation to a drug trafficking crime in violation of § 924(c). In exchange for the Government’s promise to dismiss the indictment as it pertained to Apker, Apker agreed to enter a conditional plea of guilty to a one-count information charging him with a single violation of § 924(c). Consistent with the plea agreement, Ap-ker entered a conditional plea of guilty in the District Court and reserved the right to appeal the court’s previous denial of certain motions to suppress evidence. At the change of plea hearing, the court carefully explained the elements of the § 924(c) violation and repeatedly confirmed that Apker understood the court’s explanation. Furthermore, the court explained to Apker that mere possession of a firearm with a silencer “in and of itself wouldn’t constitute sufficient evidence to convict you of the crime with which you are charged. You’ve got to have actually used or carried that firearm in the commission of a drug trafficking crime, all as I have heretofore explained to you.” Hearing Tr. at 81. Finally, the court informed Apker that his guilty plea must be entered with knowledge of all the matters contained in Apker’s plea petition and discussed at the plea hearing. Apker responded that he understood and maintained his conditional plea of guilty. The court accepted Apker’s plea and sentenced him to thirty years in federal prison and five years of supervised release. On direct appeal, Apker challenged the District Court’s adverse suppression rulings, but did not challenge the validity of his plea. We affirmed the suppression rulings of the District Court. See Lucht, 18 F.3d at 546-50. Nearly two years later, the Supreme Court decided in Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), that the term “uses” in § 924(c) requires “active employment” of a firearm and, therefore, rejected the less rigorous standard that was the settled law of this Circuit. See United States v. Hellbusch, 147 F.3d 782, 783 (8th Cir.1998) (recognizing Bailey’s rejection of the “mere presence, availability or proximity” standard). Claiming that his conviction was defective in light of Bailey, Apker filed a motion to vacate his sentence and withdraw his guilty plea pursuant to § 2255 and Federal Rule of Criminal Procedure 32(e). The District Court dismissed the motion with prejudice because Apker, by pleading guilty, had waived all non-jurisdictional challenges, including any claim of factual innocence and any right to challenge the meaning of the terms of § 924(c). Apker then sought review of the denial of his § 2255 motion in this Court. We denied Apker the certificate of appealability necessary for his appeal under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2253(c)(1), because Apker did not assert the denial of a constitutional right as required by AED-PA, 28 U.S.C. § 2253(c)(2). See Apker, 101 F.3d at 75. For this determination, we relied upon Hohn v. United States, 99 F.3d 892 (8th Cir.1996) (per curiam), reversed, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998), in which this Court held that a § 2255 claim of Bailey error is not a constitutional claim for the purposes of AEDPA because “Bailey did no more than interpret a statute, and an incorrect application of a statute by a district court, or any other court, does not violate the Constitution.” Hohn, 99 F.3d at 893. Ap-ker thereafter petitioned for certiorari to the United States Supreme Court. While Apker’s petition for certiorari was pending, the Supreme Court vacated and remanded our decision in Hohn because “the Government now found itself in agreement with Hohn, saying his claim was, in fact, constitutional in nature.” Hohn, 118 S.Ct. at 1972. One week later, the Supreme Court granted Apker’s petition for certiorari, vacated our judgment, and remanded Apker’s case to this Court for further consideration in light of the Government’s concession in Hohn. See Apker, — U.S. at -, 118 S.Ct. at 2339. We thereupon granted Apker the certificate of appealability necessary for his appeal of the judgment of the District Court denying his § 2255 motion. That appeal is now before us. We review de novo the District Court’s denial of Apker’s § 2255 motion. See Blankenship v. United States, 159 F.3d 336, 337 (8th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 844, 142 L.Ed.2d 699 (1999); Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir.1992). For reversal, Apker argues that, in light of Bailey and Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 1917, 141 L.Ed.2d 111 (1998) (stating that the term “carries” in § 924(c) “implies personal agency and some degree of possession”), the parties, counsel, and the hearing court all misunderstood the terms “uses” and “carries” in § 924(c) at the time Apker pleaded guilty. Apker argues, therefore, that the hearing court did not adequately advise Apker of the exact nature of the § 924(c) charge, the guilty plea was not knowing and voluntary as required by due process, and the hearing court did not have a legally sufficient factual basis for accepting the guilty plea. The District Court rejected similar arguments made in Apker’s § 2255 motion because they were not jurisdictional arguments and, therefore, were waived when Apker entered a valid plea of guilty. See Walker v. United States, 115 F.3d 603, 604 (8th Cir.1997) (“The general rule is that a valid guilty plea waives all non-jurisdictional defects.”); Mack v. United States, 853 F.2d 585, 586 (8th Cir.1988) (“[A] plea of guilty ... waives all challenges to the prosecution either by direct appeal or by collateral attack, except challenges to the court’s jurisdiction.”). Furthermore, although the validity of a guilty plea — that is, whether the plea is knowing and voluntary — generally may be reviewed collaterally, see United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (noting that collateral inquiry into a guilty plea “is ordinarily confined to whether the underlying plea was both counseled and voluntary”), Apker failed to challenge the validity of his plea on direct appeal and, therefore, has waived any such claim in this collateral proceeding, see Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998) (“[E]ven the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.”). Apker does not deny that his § 2255 claims are procedurally defaulted, but argues instead that he should be given the opportunity to overcome the default by demonstrating his actual innocence. For this proposition, Apker relies upon Bousley, which was decided during the pendency of Apker’s petition for certiorari.. In Bousley, the Supreme Court determined that, when a § 2255 petitioner has procedurally defaulted his claim that a Bailey error resulted in an involuntary and unintelligent guilty plea, the merits of the petitioner’s claim may be collaterally reviewed “if he can establish that the constitutional error in his plea colloquy ‘has probably resulted in the conviction of one who is actually innocent.’ ” Bousley, 118 S.Ct. at 1611 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)); see also Hellbusch, 147 F.3d at 783-84 (explaining Bousley). To prove actual innocence, Apker must show that, in light of all the evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt of the crime for which he pleaded guilty and was convicted. See Bousley, 118 S.Ct. at 1611 (citing Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). To rebut any showing that Apker might make, “the Government should be permitted to present any admissible evidence of petitioner’s guilt even if that evidence was not presented during petitioner’s plea colloquy and would not normally have been offered before ... Bailey.” Bousley, 118 S.Ct. at 1612. Furthermore, if this is a case in which “the Government has forgone more serious charges in the course .of plea bargaining, petitioner’s showing of actual innocence must also extend to those [more serious] charges.” Id. at 1612; see also Jones v. United States, 153 F.3d 1305, 1308 (11th Cir.1998). Although the District Court had no occasion to address the issue of actual innocence in light of Bousley, we conclude, based on the record before us, that Apker cannot demonstrate actual innocence of the drug trafficking charges that were alleged in the superseding indictment and dismissed in exchange for Apker’s guilty plea. The thirty-three count superseding indictment alleged that Apker and his code-fendants: conspired to distribute and possess with intent to distribute one kilogram or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count 1); engaged in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a) (count 2); distributed methamphetamine in violation of § 841(a)(1) (counts 3-15); possessed with intent to distribute methamphetamine in violation of § 841(a)(1) (counts 16-29); traveled in interstate commerce with intent to carry on unlawful activity in violation of 18 U.S.C. §§ 2 and 1952(a)(3) (count 30); conducted a financial transaction involving the proceeds of unlawful activity in violation of 18 U.S.C. §§ 2 and 1956(a)(1) (counts 31 and 32); and used or carried a firearm equipped with a silencer or muffler during and in relation to a drug trafficking crime in violation of § 924(c) (count 33). Considering the large amount of methamphetamine involved and Apker’s criminal history, the potential existed for a sentence of life imprisonment had Apker been prosecuted and convicted of the charges brought against him. Apker’s co-defendants, after either entering conditional guilty pleas or standing trial, were convicted on multiple counts of violating §§ 841(a)(1) and 846 and sentenced to prison terms ranging from 41 to 240 months for each count, to be served concurrently. A spate of appeals followed, thus establishing in this Court a lengthy record of the criminal activity that instigated the investigation, prosecution, and conviction of the methamphetamine conspiracy. For example, in the context of a claim by Timothy Egan that the evidence at trial was insufficient to establish that Egan was a voluntary participant in the methamphetamine conspiracy, this Court determined that “[f]rom listening to the intercepted conversations between Egan and Apker, the jury could have rationally determined that Apker fronted drugs to Egan for distribution and that Egan advised Apker about laundering money.” Lucht, 18 F.3d at 552. Likewise, in the course of Dale Ray Haley’s sufficiency-of- evidence challenge to his conspiracy conviction, we noted a taped conversation in which Haley and Apker “discuss[ed] problems with Apker’s drug distribution business, including problems with his being paid with small bills.” Id. And while considering Fred Friend’s Bailey challenge, we began with the observation that “police found the handgun and silencer hidden with a large quantity of drugs and cash in a secret safe at the home of Gary Apker, the lead conspirator.” Friend, 101 F.3d at 558. Furthermore, on Apker’s direct appeal of the District Court’s denial of Ap-ker’s motion to suppress evidence, our af-firmance produced the statement that “officers knew that Apker had completed a drug transaction within hours of the search [and that] he had a hiding place for his drugs.” Lucht, 18 F.3d at 549. At Apker’s change of plea hearing, the court methodically advised Apker of the elements of the § 924(c) offense charged in the-one-count information to which Apker pleaded guilty: “[T]hat crime has two essential elements which are as follows: 1. That you committed a drug trafficking crime.... 2. During and in relation to the commission of that crime you knowingly used or carried a firearm equipped with a firearm silencer or a firearm muffler.” Hearing Tr. at 36-37. The court paused to assure that Apker understood each element of the crime and that “the government would have to prove both of those elements beyond a reasonable doubt before you could be convicted.” Id. at 37. The court then elaborated at length upon the meaning of the first element of the § 924(c) offense: THE COURT: Do you understand that ... the term “drug trafficking crime” means any felony punishable under the Controlled Substances Act which is 21 United States Code 801, Section 801 and following, or the Controlled Substances Import and Export Act which is 21 USC Section 951 and following ... and do you understand that? DEFENDANT APKER: Yes. THE COURT: You were here and heard me explain to the other defendants what the crime of distribution of a substance or mixture containing methamphetamine was, didn’t you? DEFENDANT APKER: Yes. THE COURT: And did you hear me explain to the other defendants also the elements of the crime of possession with intent to distribute a substance or mixture containing methamphetamine? Did you hear me explain that crime and the elements of that to the other defendants here? DEFENDANT APKER: Yes. THE COURT: Those are an example of ... the type of felony punishable under the Controlled Substances Act, 21 USC Section 801 et seq., but it could be a crime such as that or some other crime. Do you understand that? DEFENDANT APKER: Yes. Hearing Tr. at 37-38. Finally, the court informed Apker that by pleading guilty he was attesting that he had knowledge of all the matters discussed at the plea hearing. Apker again responded that he understood and entered a conditional guilty plea. “ ‘A plea of guilty is the equivalent of admitting all material facts alleged in the charge. Under § 924(c), this includes admitting to an underlying drug offense sufficient to support a conviction under that section.’ ” United States v. Powell, 159 F.3d 500, 503 (10th Cir.1998) (quoting United States v. Kelsey, 15 F.3d 152, 153 (10th Cir.1994)), cert. denied, — U.S. -, 119 S.Ct. 1088, 143 L.Ed.2d 89 (1999); see also O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (“In pleading guilty, a defendant admits all of the factual allegations made in the indictment.”); Adkins v. United States, 298 F.2d 842, 844 (8th Cir.) (“A plea of guilty is an admission of all the essential elements of an information or indictment so that no other proof on the part of the government is necessary for a judgment of conviction.”), cert. denied, 370 U.S. 954, 82 S.Ct. 1604, 8 L.Ed.2d 819 (1962). As is evident from the careful plea hearing conducted by the District Court, Apker’s plea of guilty to the § 924(c) charge, which requires that Apker used or carried a firearm “during and in relation to a drug trafficking crime,” was an admission that he had committed at least one drug trafficking crime. See Powell, 159 F.3d at 503 (holding petitioner’s guilty plea to a § 924(c) charge was an admission sufficient to support a conviction under §§ 841(a)(1) and 841(b)(l)(B)(iii)). In view of the foregoing discussion, we conclude there is no need for a remand on the question of Apker’s actual innocence of the charges on which, through his plea agreement, he escaped prosecution. The question remains, however, whether the charges that the Government agreed not to prosecute in exchange for Apker’s plea of guilty to the § 924(c) charge are “more serious” within the meaning of Bousley than the § 924(c) charge. See Bousley, 118 S.Ct. at 1612 (stating that petitioner’s showing of actual innocence must extend to “more serious” charges foregone in the course of plea bargaining). We think it advisable to allow that question to be addressed initially by the District Court. Accordingly, we remand the case to the District Court. Only if the foregone charges are not “more serious” than the § 924(c) charge will Apker have overcome his procedural default, and only then will the District Court be obliged to hear Apker’s claim of an unknowing and involuntary plea on its merits. See id. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. . Section 2253(c)(1) states in pertinent part: ‘‘Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a proceeding under section 2255.” 28 U.S.C.A. § 2253(c)(1) (West Supp. 1998). . Section 2253(c)(2) states: "A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.1998). . Apker argued to the District Court that no factual basis for his guilty plea existed, that he is factually innocent of the crime for which he was convicted, and that his conviction and sentence "are fundamentally defective and result in a complete miscarriage of justice.” Petitioner’s Motion to Vacate Sentence and to Withdraw Plea of Guilty at 1. For the purposes of this appeal, in light of the intervening Supreme Court precedent clarifying the law upon which Apker bases his appeal, we construe Apker’s arguments to the District Court to be substantially the same as the arguments more clearly presented to us in Apker's appellate briefs. . Apker does not appear to argue that he can demonstrate cause and prejudice. Cf. Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (stating a § 2255 petitioner "must show cause for the procedural default and prejudice attributable thereto in order to obtain review of his defaulted constitutional claim”) (explaining Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). But even if Apker sought to make a showing of cause and prejudice, the Supreme Court in Bousley appears to have foreclosed that avenue to petitioners like Apker. The petitioner in Bousley, in an attempt to demonstrate cause for his failure to raise a Bailey issue on direct appeal, argued that the legal basis for his claim was not reasonably available to counsel when the petitioner pleaded guilty and that any pre-Bailey attack on the guilty plea would have been futile. The Court rejected both arguments and determined that the petitioner was unable to establish cause for his default. See Bousley, 118 S.Ct. at 1611; Jones v. United States, 153 F.3d 1305, 1307-08 (11th Cir.1998) (explaining Bousley). . Another indictment, not appearing in the record before us, apparently charged Apker and his co-defendants with eleven counts of drug trafficking and money laundering. These charges, as they pertained to Apker, also were dismissed in exchange for Apker’s guilty plea. . See United States v. Apker, 964 F.2d 742, 743 (8th Cir.1992) ("Apker is charged in two mul-ti-count indictments with various offenses.... He faces thirty years to life imprisonment on these charges.... [He] has a history of prior criminal conduct, including at least one conviction on a controlled substances charge.”). For details of Apker's past criminal exploits, see United States v. Apker, 705 F.2d 293 (8th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984).

. SCHROEDER, Circuit Judge: Appellant Robert Vickers was an inmate on Arizona’s death row when he burned a fellow inmate to death by splashing burning liquid through the food slot of the victim’s cell. Vickers started the fire with an incendiary device he created by pouring bottles of hair tonic into an empty ice cream container, stuffing a tissue inside and lighting it. A jury convicted Vickers of first degree murder and the trial judge sentenced him to death. This is an appeal from the district court’s denial of Vickers’ first federal petition for writ of habeas corpus. The facts are set forth in the Arizona Supreme Court’s opinion affirming the conviction and sentence. State v. Vickers, 159 Ariz. 532, 768 P.2d 1177 (1989). They are not materially disputed. Immediately preceding the burning, Vickers had shown to the victim, Wilmar “Buster” Holsinger, a letter and drawing from his niece. This elicited an obscene comment from Holsinger about the niece. Vickers at the time was on clean up-duty in the central area of a “pod” containing four death row cells. Vickers returned to his cell, made the incendiary device and repeatedly splashed, the burning liquid into Holsinger’s cell while the prison guard was absent from the pod emptying trash. In addition to killing Holsinger, the other occupants of the pod suffered from smoke inhalation from the fire. After pulling Vickers from the pod area, a guard asked him what had happened and he replied “I burned Buster.” When asked whether Buster was dead, Vickers stated, “he should be, he is on fire.” Vickers has at all times acknowledged that he caused the fire and the death. Although Vickers raises numerous issues in this appeal, only one merits serious discussion; that is his claim that he was denied due process when the trial court denied his request for out-of-state psychiatric testing to determine whether he had temporal lobe epilepsy. Vickers argues here, as he did on direct appeal, that his due process rights were violated by the state’s failure to order diagnostic testing. He relies on Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985), which held that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense.” When the Supreme Court denied certiorari in Vickers’ state court appeal, Justices Marshall and Brennan dissented, urging that the Court should “decide whether the Constitution requires a State to provide an indigent defendant access to diagnostic testing necessary to prepare an effective defense----” Vickers v. Arizona, 497 U.S. 1033, 1033, 110 S.Ct. 3298, 3298, 111 L.Ed.2d 806 (1990). We need not address that question directly here, for our review of the record in this case convinces us that the particular testing requested by Vickers was not “necessary to prepare an effective defense,” and, further, that the trial court took careful steps to ensure that it made an informed decision on that issue. Vickers’ defense at trial was insanity based on temporal lobe epilepsy (“TLE”). TLE is a brain disorder that can cause violent behavior and render a person unable to appreciate the nature and wrongfulness of his acts. Unlike Ake, where the state provided no psychiatrically expert assistance in the preparation of the defense, the trial judge in this case appointed a psychiatrist, Dr. Bindelglas to determine Vickers’ competency to stand trial and to assist in his defense. He appointed Dr. Tuchler for the state. At the competency hearing, both Dr. Bindelglas and Dr. Tuchler testified that Vickers may have TLE, but that diagnostic testing was necessary for certainty. The defense then requested out-of-state testing on the basis of Dr. Bindelglas’ opinion that because no facilities in Arizona were suitable for the necessary testing, the defendant would have to be transported to an out-of-state facility and undergo observation for several weeks. The trial court then asked both the defense and the state to provide the name of an additional expert who could examine Vickers, and provide further information on whether out-of-state testing should be ordered. Vickers’ counsel did not respond and the state submitted the name of Dr. Masland. Dr. Masland concluded that there was nothing to suggest that Vickers suffered from TLE, relying upon his own observations and observations of others who had had close contact with Vickers and had never observed any epileptic seizures. The district court denied the motion for testing. Dr. Bindelglas testified at trial that Vickers may well have TLE, and that if he had been suffering a seizure at the time of the offense, he would not meet the applicable standard for sanity, i.e. the knowledge of right from wrong. However, Dr. Bindelglas, along with every other expert who provided evidence in the case, agreed that no amount of testing could establish whether Vickers had in fact suffered a seizure at the time of the offense. Thus, even if the testing had shown that Vickers did suffer from TLE, that diagnosis would not materially assist the jury to decide the critical question: whether Vickers was suffering a seizure at the time of the homicide. Indeed, if the testing had been ordered and had resulted in a finding that Vickers did not have TLE, the defense would have been seriously undercut. Dr. Bindelglas would not have been able to testify at trial that there was a “definite probability that Vickers had TLE.” Accordingly, the diagnostic testing cannot be said in this case to have been “necessary to prepare an effective defense.” In addition, the heavy weight of the evidence both at trial, and upon which the trial court relied when it denied the motion for out-of-state testing, was that Vickers did not have TLE. This was the opinion of Dr. Mas-land as well as Dr. Tuchler, who both examined Vickers, and another doctor, Dr. La-Wall. Indeed, after examining Vickers’ medical records, talking with corrections personnel about Vickers’ behavior, and examining Vickers, Dr. Masland concluded: In short, he has been under intense scrutiny, including that of trained medical personnel, for a number of years. Historically, there is absolutely nothing to suggest that this man is epileptic. The intensity of the observational data is so high, that further diagnostic testing, such as electroencephalography, would be totally superfluous. Moreover, there was little to suggest that Vickers was suffering from a TLE seizure, and hence unable to differentiate right from wrong when he committed the complex series of acts that led to Holsinger’s death. No evidence existed of any of the symptoms of such a seizure, such as uncontrollable behavior and amnesia. Vickers remembered and admitted the burning immediately afterward, and more than six months later referred to the burning in a letter to the medical examiner. For these reasons the trial court did not deny Vickers due process when it denied his request for extensive out-of-state diagnostic testing to determine whether Vickers had a condition that could not have been demonstrated to be responsible for the conduct in question. We address the remainder of Vickers’ contentions summarily. Manslaughter Instruction Vickers contends that his constitutional rights were violated because he was entitled to an instruction on manslaughter, to permit the jury to find that the killing was either reckless or provoked. The district court properly held that the evidence did not show á reckless killing, and that words alone are insufficient provocation to reduce a homicide to manslaughter in Arizona. See State v. Vickers, 768 P.2d at 1187. Premeditation Vickers contends that there was insufficient evidence to prove premeditation. The district court correctly found there was sufficient evidence because after the alleged provocative statement, Vickers had engaged in a meditated series of acts preparatory to sloshing the liquid through a slot to reach the victim. See id. at 1186 (premeditation may be as “instantaneous as successive thoughts of the mind”) (citations omitted). Prior Bad Acts Vickers contends his constitutional rights were violated when the trial court permitted the state to cross-examine Dr. Bindelglas about Dr. Bindelglas’ direct testimony concerning Vickers’ prior acts of random violence. The direct testimony was part of the deliberate defense strategy to link Vickers’ violence with TLE. There was no due process violation because his prior acts were placed before the jury by his defense as part of its own strategy. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991) (federal habeas review limited to a determination of whether the alleged error of state law “so infected the trial with unfairness as to deny due process of law”). Miranda Vickers argues that the introduction of his incriminating statements made to officers immediately after the murder violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 1966). There is no custodial interrogation when asking what happened in an emergency situation. See Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir.1978) (“on-the-scene questioning does not require Miranda warnings” even if in prison). Nor was Vickers’ physical condition in the squad room so bad as to render his statements involuntary. Cf. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Ineffective Assistance of Rule 32 Counsel Vickers argues he received ineffective assistance of post-conviction counsel in his state court post-conviction proceeding. There is no constitutional right to counsel in state collateral proceedings. See Coleman v. Thompson, 501 U.S. 722, 755, 111 S.Ct. 2546, 2567-68, 115 L.Ed.2d 640 (1991); Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir.), cert. denied, 516 U.S. 1143, 116 S.Ct. 980, 133 L.Ed.2d 899 (1996). Arizona Death Penalty Statutes Vickers argues the Arizona practice requiring the judge to decide factual issues in sentencing is unconstitutional. This argument is foreclosed by Walton v. Arizona, 497 U.S. 639, 648-49, 110 S.Ct. 3047, 3054-55, 111 L.Ed.2d 511 (1990). In 1993, the Arizona statute providing for death by lethal gas was changed to provide for death by lethal injection. .Ariz.Rev. Stat. § 13-704. A defendant sentenced to death for an offense before November 1992, like Vickers, can choose either gas or injection. Vickers argues the change violates the Ex Post Facto Clause of the Constitution because it requires him to choose the method of execution/ thereby enlarging his penalty. The district court properly denied relief, pursuant to Poland v. Stewart, 117 F.3d 1094, 1105 (9th Cir.1997), where we said that “[t]he change in method does not make the sentence more burdensome and so does not violate the Ex Post Facto Clause.” Poland also requires rejection of Vickers’ claim that execution by lethal injection is cruel and unusual. See id. at 1104. Aggravating Circumstances There is no violation of federal law in the trial court’s application of Ariz.Rev.Stat. § 13-703(F)(3) relating to the creation of “grave risk.” See Estelle, 502 U.S. at 67, 112 S.Ct. at 479-80. The district court correctly held that there was no indication that the trial court relied improperly on a 1979 conviction that had been overturned. Moreover, the Arizona Supreme Court independently found the existence of the aggravating circumstances. See State v. Vickers, 768 P.2d at 1190. There was more than sufficient evidence, to support the state’s finding of “especially heinous, cruel or depraved” conduct as an aggravating factor. Vickers’ argument that the death penalty statute is unconstitutional in requiring the defendant to establish mitigation is fpreclosed by Walton v. Arizona, 497 U.S. at 650, 110 S.Ct. at 3055-56. Vickers’ Youth, Vickers argues that the state court’s refusal to consider his youth in mitigation violated his rights under Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Both the trial court and the Arizona Supreme Court discussed Vickers’ age as a possible mitigating factor, however, and acted within their discretion in rejecting that age (23) as a mitigating factor. See State v. Vickers, 768 P.2d at 1191.. Procedurally Barred Claims The district court held many claims presented to have been procedurally defaulted unless Vickers could show cause and prejudice. Cause to excuse default exists if a petitioner can demonstrate that “some objective factor external to the defense impeded counsel’s efforts to comply with the state’s procedural rule.” Coleman, 501 U.S. at 753, 111 S.Ct. at 2566. Prejudice is actual harm resulting from the alleged error. See Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir.1984). Investigative and Expert Funds The district court did not abuse it discretion in denying Vickers’ requested investigative and expert funds 'as Vickers’ counsel did not demonstrate to the district court that the services were reasonable and necessary for adequate representation. See Bonin v. Calderon, 59 F.3d 815, 837 (9th Cir.1995), cert. denied, 516, U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996). Request for discovery As Vickers did not request discovery until two weeks after the district court denied his habeas petition, the district court did not abuse its discretion in denying the request. We have reviewed all of the claimed errors and conclude the district court properly ruled that there was no showing of cause or prejudice with respect to any. We have also reviewed the record in light of all the procedurally defaulted claims, and conclude there was no miscarriage of justice. See Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Vickers has not demonstrated cause for his failure to develop facts to entitle him to the requested evidentiary hearings. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 7, 112 S.Ct. 1715, 1718-19, 118 L.Ed.2d 318 (1992). AFFIRMED. ORDER July 15, 1998 In his petition for rehearing, Vickers asks us to reconsider one of the claims that the district court dismissed for procedural default and failure to show cause and prejudice. That is a claim that the expert testimony of the state fire investigator rendered the trial fundamentally unfair. The state fire investigator’s testimony bore on the issue of intent. Vickers stresses in his petition for rehearing that the fire investigator, David Dale, lied about his qualifications and urges us hold that the state violated the principle of Brady v. Maryland, 373 U.S. 83 (1963), in failing to disclose that information. Vickers relies on our recent decision in Singh v. Prunty, 142 F.3d 1157, 1164 (9th Cir.1998), where we held that withholding of impeachment evidence violated Brady and was sufficiently prejudicial in the circumstances of that case to require a new trial. The government in Singh failed to disclose its own plea bargain made with a key prosecution witness. Here, unlike Singh, however, the government did not know about Dale’s lack of qualifications at the time of trial and can not be said to have wrongfully withheld information about it. In addition, Dale’s testimony in this case was consistent with other evidence at trial, including Vickers’ own admissions, that demonstrated that Vickers acted with intent. That other evidence showed Vickers’ motive, his construction of the incendiary device, his killing the victim with burning liquid and, further, his expression of enjoyment over the act. As the prosecutor told the jury when in referring to Dale’s testimony, “mostly what he did was confirm what we already know about the fire.” Cause and prejudice have not been established. The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35. The petition for rehearing is denied and the suggestion for rehearing en bane is rejected.

HILL, Circuit Judge. Clay appeals from an order of the lower court denying, without a hearing, a motion by him under 28 U.S.C.A. § 2255, to vacate and set aside his conviction and sentence imposed for violations of the narcotics laws. The motion was summarily denied upon the ground that the “motion and the files and records of the case conclusively show that the petitioner is entitled to no relief.” The record discloses that appellant was charged in a three-count indictment and in a one-count information with four separate illegal sales of narcotics in violation of 26 U.S.C.A. § 4705(a). The four counts were consolidated for trial without objection but, shortly before the time set for trial, appellant withdrew his pleas of not guilty and entered pleas of guilty to all four counts. Clay was sentenced to imprisonment for a term of ten years on each of the four counts with the sentences to run consecutively. This was Clay’s third unsuccessful attempt in the court below to invalidate the sentences imposed and is the second appeal to this court. The only points raised on this appeal relate to the sufficiency of the indictment and information, which appellant contends are legally insufficient because: (1) In each of the four counts of the indictment and information the statutory language “Secretary or his delegate” is omitted; and (2) in each of such counts the name of the person to whom the narcotics were alleged to have been sold is not shown. Rule 7(c), F.R.Crim.P., 18 U.S. C.A., provides that an indictment or information “ * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * ” The sufficiency of an indictment or information is to be determined by practical rather than technical considerations. The test is not whether the indictment could have been made more definite and certain. Rather, before a conviction, the indictment standing alone must contain the elements of the offense intended to be charged and must be sufficient to apprise the accused of the nature of the offense so that he may adequately prepare a defense. And, after a conviction, the entire record of the case must be sufficient so as to enable the accused to subsequently avail himself of the plea of former jeopardy if the need to do so should ever arise. The same rule or test is applicable on a collateral attack by motion under section 2255 to vacate and set aside a conviction and sentence. *However, after a verdict or plea of guilty, every intendment must be indulged in support of the indictment or information and such a verdict or plea cures mere technical defects unless it is apparent that they have resulted in prejudice to the defendant. Prejudice to the defendant is, of course, a controlling consideration in determining whether an indictment or information is sufficient. We have no difficulty in concluding that the indictment and information, when measured by the standards of the foregoing rules, are sufficient as against the collateral attack on the ground of omitting the statutory language, “Secretary or his delegate”. This is a purely technical argument or matter which is based upon the substitution in the indictment and information for that language, of the phrase “District Director of Internal Revenue”. The function of the issuing of blank order forms for the sale of narcotics has in fact been delegated to the district directors of internal revenue. 26 C.F.R. § 151.143. The second point raised by appellant cannot be disposed of so easily, primarily because of the very recent case of Lauer v. United States, 7 Cir., 320 F.2d 187. In that case, the Seventh Circuit held that an indictment charging the unlawful sales of narcotics in violation of section 4705(a), which did not set forth the name of the person to whom the unlawful sales were alleged to have been made, was so defective that a motion under section 2255 to vacate and set aside the sentence should be granted, even though the defendant was informed of the identity of that person on the day of trial. The court, while holding that the identity of the purchaser was not an element of the offense, based its decision upon the view that “ * * * the identity of the ‘person to whom’ such a sale is alleged is a factor ‘central to every prosecution under the statute’ and of which the accused is entitled to be apprised by the indictment. * * *” (320 F.2d at 191). The case of Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, was cited in support of this view. After giving careful consideration to the Lauer and Russell decisions and for the reasons hereinafter discussed, we reach a different conclusion on the question and therefore respectfully decline to follow the Lauer case. The elements of the statutory offenses with which appellant was charged under section 4705(a) are as follows: (1) The selling, bartering, exchanging or giving away narcotic drugs; (2) except in pursuance to a written order on a form issued in blank by the Secretary of the Treasury or his delegate. The statute makes no provision or requirement with respect to the identity of the person to whom an illegal sale is made and we must therefore conclude, as the court did in the Lauer case, that the identity of such person is not an element of the offense. Hence, the indictment and information in this case cannot be considered to be defective because of a failure to allege the elements of the offense. Nor do we think the indictment and information are defective on the ground that they failed to apprise the appellant of what he must be prepared to meet at the trial. Appellant did not request a trial, but rather entered pleas of guilty. And, in any event, the record clearly discloses that appellant was fully aware of the nature of the charges against him. Appellant’s strongest argument here is that he would be unable to plead this conviction as a bar to a subsequent prosecution for the same offense inasmuch as the identity of the person to whom he made the illegal sales is not shown in the indictment and information. It is true that the identity of such person is not shown. But appellant would not be confined to the allegations of the indictment and information, standing alone, if it ever became necessary for him to enter a plea of former jeopardy. Clearly, appellant could rely upon other parts of the record in the event that future proceedings should be taken against him. And, the record discloses that in response to a question by the trial court prior to sentencing, appellant admitted that he sold narcotics to a federal man. The federal man referred to is identified in the record as “Ernest Hill”. There is therefore no question but what a plea of former jeopardy can be made on the present record. We need not decide here then whether an indictment would be fatally defective in which neither the indictment nor the record disclosed the identity of the person to whom the sale was made. We conclude that the indictment and information in this case are sufficient under the general principles of law by which they must be tested. Certainly, there is nothing in the record before us to indicate that appellant was prejudiced in any way by virtue of the defects asserted in the motion. Affirmed. . Olay v. United States, 10 Cir., 303 F.2d 301, cert, denied 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132. . Braswell v. United States, 10 Cir., 224 F.2d 706, cert, denied, 350 U.S. 845, 76 S.Ct. 86, 100 L.Ed. 752; Jackson v. United States, 114 U.S.App.D.C. 181, 313 F.2d 572. . Yates v. United States, 10 Cir., 316 F. 2d 718; United States v. Roberts, 4 Cir., 296 F.2d 198, cert, denied, 369 U.S. 867, 82 S.Ct. 1033, 8 L.Ed.2d 85. . Crapo v. United States, 10 Cir., 100 F. 2d 996; Fippin v. United States, 9 Cir., 162 F.2d 128; United States v. Beck, 7 Cir., 118 F.2d 178, cert, denied, 313 U.S. 587, 61 S.Ct. 1121, 85 L.Ed. 1542; Finn v. United States, 4 Cir., 256 F.2d 304. . Stapleton v. United States, 17 Alaska 713, 260 F.2d 415. . Russell v. United States, supra, 369 U.S. at 764, 82 S.Ct. at 1047, 8 L.Ed.2d 240. . “The Court: Well, you sold 800 dolophine tablets, didn’t you, to a Federal man for $125.00?” “The Defendant: Yes, sir, I admit that.”

BY THE COURT: Appellee Beverly Bogle was arrested and charged with importation and possession of cocaine at the Miami Airport on November 11, 1987. She subsequently pled guilty to the importation charge in exchange for the government’s dropping the possession charge. After the guilty plea but prior to sentencing, Bogle filed a motion challenging the constitutionality of the new federal sentencing guidelines. See 28 U.S.C. § 991 et seq. (establishing the Sentencing Commission and empowering it to promulgate sentencing guidelines). The United States District Court for the Southern District of Florida, sitting en banc, consolidated this case with seven other cases for the purpose of considering the constitutional challenges to the guidelines. On June 15, 1988, the en banc court declared the guidelines unconstitutional. United States v. Bogle, 689 F.Supp. 1121 (S.D.Fla.1988). The government moved for a stay of the decision, and the district court denied the motion on June 30, 1988. That same day, Bogle was sentenced to five years in prison pursuant to the system of sentencing in use prior to the promulgation of the guidelines. On August 11, 1988, the district court issued an opinion explaining its decision to deny the stay. United States v. Bogle, 693 F.Supp. 1102, 1988 WL 84983 (S.D.Fla.1988). The government has appealed the case on the merits. In the meantime, however, the government has filed a motion asking for an emergency stay of the district court’s decision pending the resolution of the case on the merits. See Fed.R.App.P. 8. It is that motion alone which we consider today. Because we find that the government has not met the heavy burden necessary to justify a stay, we deny the motion. STANDARD OF REVIEW At the outset, the parties disagree as to what standard we should use in considering the stay motion. Normally we consider those factors set forth in Eleventh Circuit Rule 27-l(b): (1) the likelihood the moving party will prevail on the merits; (2) the prospect of irreparable injury to the moving party if relief is withheld; (3) the possibility of harm to other parties if relief is granted; and (4) the public interest. Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.), cert. denied, 479 U.S. 889, 107 S.Ct. 289, 93 L.Ed.2d 263 (1986). The government argues that this is not a normal case. The Supreme Court has taken the unusual step of granting certiorari before judgment in United States v. Mistretta, — U.S. -, 108 S.Ct. 2818, 100 L.Ed.2d 920 (1988), in order to resolve the constitutional questions concerning the guidelines. Thus, the government reasons that we should use the standard that the Supreme Court uses when deciding whether to stay an appellate court mandate pending resolution of a case in the Supreme Court. That standard requires: (1) a reasonable probability that four justices will vote to grant certiorari; (2) a fair prospect that the court will reverse the decision below; (3) a showing of irreparable injury if a stay is not granted; and (4) a balancing of the equities. Rostker v. Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 2, 65 L.Ed.2d 1098 (1980) (Brennan, J., Circuit Justice); Deaver v. United States, — U.S. -, 107 S.Ct. 3177, 97 L.Ed.2d 784 (1987) (Rehnquish C.J., Circuit Justice). The government’s argument has some force in the unusual circumstances of this case. However, we need not decide between the standards. In this case, the decision whether to grant the stay rests primarily on the balancing of the equities, and with regard to that aspect, the standards are essentially the same. That we couch our discussion in terms of the Eleventh Circuit factors does not indicate a substantive decision favoring that standard. It is simply a framework for the discussion. LIKELIHOOD OF SUCCESS We need not linger long over this factor. That the constitutional issues in this case are complex and close is evidenced by the numerous conflicting decisions reached by federal courts which have considered them. For this reason, our decision deny ing the stay is based primarily upon the balancing of the equities discussed below, 'i.e., the failure of the government to make the necessary showing of irreparable injury if a stay is not granted, and appellee’s successful demonstration of irreparable injury if a stay is granted. IRREPARABLE INJURY TO THE GOVERNMENT The government’s claims of harm in the absence of a stay are primarily claims of administrative inconvenience. First, the government argues that if a stay is not granted, it will have to appeal every criminal case in order to preserve its rights should its position ultimately prevail in the Supreme Court. However, if a stay is granted, it is likely that almost every defendant who is adversely affected by that stay would appeal. Thus, although we are sympathetic to the government’s increased workload, it is caused by the uncertainty of the situation rather than the particular resolution reached by the district court. Second, the government contends that there is a heavier administrative burden in switching from the old system to the guideline system than vice versa. In other words, if the initial sentencing is under the pre-guideline system, and the Supreme Court ultimately sustains the validity of the guidelines, the government argues that there will be severe administrative burdens in resentencing under the guidelines with all of the required factfinding. On the other hand, if the initial sentencing is under the guideline system, and the Supreme Court ultimately invalidates same, the government argues that lesser administrative burdens would be involved in resen-tencing. On the present record, we are not persuaded that the administrative burdens would be significantly greater if we deny the stay, as opposed to those if we grant the stay. Moreover, the fact that the government has not asked for a stay in many of the other cases across the country where district courts have invalidated the guidelines casts some doubt upon the urgency of the government’s claim of irreparable injury. In any event, because it is anticipated that the Supreme Court will resolve the issue very soon, see footnote 2, supra, and footnote 5, infra, the extent of the government’s administrative burden should be limited. In his opinion denying a stay in this case, Judge Marcus has suggested an appropriate response to the government’s administrative burden argument. District courts can, on a case-by-case basis, determine whether judicial economy will be promoted by making findings which would have been necessary under the guideline system, or whether other factors (e.g., a significant chance of dimming memories) make it appropriate to do so. See 693 F.Supp. at 1107. We believe that such determinations can be better made by district courts on a case-by-case basis, and we encourage that this be done. INJURY TO OTHER PARTIES The opinion of Judge Marcus denying the stay points to the most compelling injury that would be suffered if we should grant a stay. 693 F.Supp. at 1106. Under the guidelines, some defendants who would have gotten probation under the pre-guide-line system will be required to serve a term of imprisonment. Thus, if we granted the stay and the guidelines were ultimately struck down, these defendants would have been unnecessarily incarcerated. Such unnecessary deprivation of liberty clearly com- stitutes irreparable harm. Cf. Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas, 448 U.S. 1327, 101 S.Ct. 12, 65 L.Ed.2d 1151 (1980) (Powell, J., Circuit Justice) (reversing lower court’s denial of stay in order to keep alien children in public schools while litigation was pending). PUBLIC INTEREST Although the public interest is clearly disserved by the present uncertainty in the federal criminal justice system, the uncertainty will inevitably remain until the Supreme Court rules. Thus, this factor is neutral in our analysis. CONCLUSION The administrative burdens that will be suffered by all concerned until the constitutionality of the sentencing guidelines is settled are regrettable. However, granting a stay would only impose different but equivalent administrative burdens. Moreover, granting a stay could unnecessarily subject some defendants to a deprivation of liberty. Thus, we deny the government’s motion for a stay. DENIED. . The other seven cases were: United States v. Eutsey, No. 87-858-CR-Kehoe; United States v. Pena, No. 88-14001-CR-Davis; United States v. Fogel, No. 88-8019-CR-Davis; United States v. Paul, No. 87-855-CR-Aronovitz; United States v. Roberts, No. 88-006-CR-Ryskamp; United States v. Peoples, No. 87-848-CR-Kehoe; and United States v. Gomez, No. 87-964-CR-Hastings. The cases are not consolidated on appeal, and Bogle is the only case before us today. . The questions presented in the Mistretta case are set out at 56 U.S.L.W. 2841. Granting cer-tiorari before judgment has the effect of bypassing the court of appeals and taking the appeal directly from the district court to the Supreme Court. It is granted only in cases of "imperative public importance.” Supreme Court Rule 18. See, e.g., United States v. Nixon, 418 U.S. 683, 686-87, 94 S.Ct. 3090, 3096-97, 41 L.Ed.2d 1039 (1974). The Supreme Court has jurisdiction to grant certiorari before or after judgment in any case "in the courts of appeals.” 28 U.S.C. § 1254. . The only ruling to date by a circuit court of appeals is Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988). The Ninth Circuit declared the guidelines unconstitutional. The following district court cases have held the sentencing guidelines constitutional: United States v. Weidner, — F.Supp. -, 1988 WL 83854 (N.D.Ind.1988); United States v. Rodriguez, 691 F.Supp. 1252 (W.D.Mo.1988); United States v. Whitfield, 689 F.Supp. 954 (D.Minn.1988); United States v. Hickernell, 690 F.Supp. 272 (S.D.N.Y.1988); United States v. Schwartz, 692 F.Supp. 331, 1988 WL 81044 (D.Del.1988); United States v. Seluk, 691 F.Supp. 525 (D.Mass.1988); United States v. Belgard, 694 F.Supp. 1488, 1988 WL 67248 (D.Ore.1988); United States v. Landers, 690 F.Supp. 615 (W.D.Tenn.1988); United States v. Sparks, 687 F.Supp. 1145 (E.D.Mich.1988) (holding the President’s removal power unconstitutional but severable and thereby upholding the guidelines); United States v. Kerr, 686 F.Supp. 1174 (W.D.Pa.1988); United States v. Franco, 691 F.Supp. 1036 (E.D.Ky.1988); United States v. Smith, 686 F.Supp. 1246 (W.D.Tenn.1988); United States v. Alves, 688 F.Supp. 70 (D.Mass.1988); United States v. Amesquita-Padilla, 691 F.Supp. 277 (W.D.Wash.1988); United States v. Myers, 687 F.Supp. 1403 (N.D.Cal.1988) (similar to Sparks); United States v. Richardson, 685 F.Supp. 111 (E.D.N.C.1988); United States v. Etienne, 1988 WL 49250 (E.D.N.Y.1988) (unpublished); United States v. Johnson, 682 F.Supp. 1033 (W.D.Mo.) (en banc), cert. granted before judgment sub nom. United States v. Mistretta, — U.S. -, 108 S.Ct. 2818, 100 L.Ed.2d 920 (1988); United States v. Chambless, 680 F.Supp. 793 (E.D.La.1988); United States v. Ruiz-Villanueva, 680 F.Supp. 1411 (S.D.Cal.1988). The following district court cases have held the sentencing guidelines unconstitutional: United States v. Richardson, 690 F.Supp. 1030 (N.D.Ga.1988); United States v. Brown, 690 F.Supp. 1423 (E.D.Pa.1988); United States v. Serpa, 688 F.Supp. 1398, (D.Neb.1988) (en banc); United States v. Alafriz, 690 F.Supp. 1303 (S.D.N.Y.1988); United States v. Kane, 691 F.Supp. 341 (N.D.Ga.1988); United States v. Williams, 691 F.Supp. 36 (M.D.Tenn.1988) (en banc); United States v. Rosario, 687 F.Supp. 426 (N.D.Ill.1988); United States v. Molina, 688 F.Supp. 819 (D.Conn.1988); United States v. Mendez, 691 F.Supp. 656 (S.D.N.Y.1988); United States v. Terrill, 688 F.Supp. 542 (W.D.Mo.1988); United States v. Brittman, 687 F.Supp. 1329 (E.D.Ark.1988); United States v. DiBiase, 687 F.Supp. 38 (D.Conn.1988); United States v. Olivencia, 689 F.Supp. 1319 (S.D.N.Y.1988); United States v. Bester, 1988 WL 75460 (D.Minn.1988) (en banc) (unpublished); United States v. Perez, 685 F.Supp. 990 (W.D.Tex.1988); United States v. Horton, 685 F.Supp. 1479 (D.Minn.1988); United States v. Allen, 685 F.Supp. 827 (N.D.Ala.1988) (en banc); United States v. Fonseca, 686 F.Supp. 296 (S.D.Ala.1988); United States v. Diaz, 685 F.Supp. 1213 (S.D.Ala.1988); United States v. Ortega-Lopez, 684 F.Supp. 1506 (C.D.Cal.1988) (en banc); United States v. Russell, 685 F.Supp. 1245 (N.D.Ga.1988); United States v. Wilson, 686 F.Supp. 284 (W.D.Okla.1988);. United States v. Molander, 683 F.Supp. 701 (W.D.Wisc.1988); United States v. Bolding, 683 F.Supp. 1003 (D.Md.1988) (en banc); United States v. Elliott, 684 F.Supp. 1535 (D.Colo.1988); United States v. Tolbert, 682 F.Supp. 1517 (D.Kan.1988); United States v. Estrada, 680 F.Supp. 1312 (D.Minn.1988); United States v. Frank, 682 F.Supp. 815 (W.D.Pa.1988); United States v. Smith, 686 F.Supp. 847 (D.Colo.1988); United States v. Lopez-Barron, 685 F.Supp. 725 (S.D.Cal.1988); United States v. Arnold, 678 F.Supp. 1463 (S.D.Cal.1988). These were the cases available on Westlaw at the time of writing. They may not constitute a complete list of all decisions concerning the constitutionality of the guidelines. . Subsequent to the en banc decision of the Southern District of Florida declaring the guidelines unconstitutional, and subsequent to the en banc decision of that court denying a stay, the Chief Judge of the Southern District issued an administrative order directing the probation department to prepare presentence reports pursuant to the pre-guidelines format. Nothing in that administrative order could inhibit a district judge's authority to direct the probation officer in a particular case to prepare a presentence report pursuant to the guidelines format. We interpret the administrative order to do nothing more than establish the routine procedure which would be subject to variance at the direction of a district judge in a particular case. . Any burden caused by our decision should be brief. The Supreme Court has set the Mistretta case for oral argument on October 5, 1988, and all indications are that the Court will decide the case as quickly as possible. 57 U.S.L.W. 3080. HATCHETT, Circuit Judge, concurring specially: I join in denial of the stay and write separately on two matters: the test to be applied and the government’s administrative burden. The test to be applied is the Eleventh Circuit test stated in Eleventh Circuit Rule 27-l(b). That test places the burden of proof squarely on the “party requesting.” Garcia-Mir v. Meese, 781 F.2d 1450 (11th Cir.1986). Consequently, I deny the stay because the government has failed to make the showing of irreparable injury required by the law of the Eleventh Circuit. In concluding that the government has failed to show irreparable injury, I give no consideration to the fact that the government has not moved for a stay in many of the other courts around the nation where the guidelines have been declared unconstitutional. As any other litigant, the government must be able to choose what, when, and where to litigate without unfavorable inferences being drawn. Likewise, the administrative process that delays a government appeal must be considered. 28 U.S.C. A. § 519 and 18 U.S.C.A. § 3731. It is sufficient to say, the record is silent on why the government has not moved for stays in other circuits. We suggest a means of curing some of the government’s administrative burdens: make the findings required under the sentencing guidelines on a case-by-case basis. This makes good sense. As I understand our ruling, without regard to the orders in this case (en banc), district court judges may order that the probation service prepare presentence reports in accordance with the guidelines. Further, district court judges may on a case-by-case basis make findings on contested issues in order to preserve the matters and materials in the event guideline sentencing is required. Following such a procedure now also solves serious administrative burdens for the courts. It should not be difficult for district judges to identify cases that require immediate fact-finding and resolution of contested issues. Following this case-by-case approach may well eliminate issues such as those presented in United States v. Jones, 722 F.2d 632 (11th Cir.1983).

LYNCH, Circuit Judge. An accident in 1974 involving a railroad tank car and a chemical storage tank has led to years of environmental litigation and, ultimately, to this court’s consideration of those events almost a quarter century later. In June 1974, an engineer of the Providence and Worcester Railroad Company moved a group of railroad tank cars while one car was still attached to a chemical storage tank at a manufacturing facility in Cumberland, Rhode Island. The facility is located on the banks of the Blackstone River. A hole was torn in the bottom of the tank and the contents, over 6,200 gallons of perehlorethylene (“perc”), gushed out, boring a four-foot hole in the ground. The fire department responded to an emergency call and hosed down the area of the spill. No further action was taken, and so matters rested until 1979. In October 1979, the Rhode Island Department of Public Health tested drinking water wells across the Blackstone River, in the nearby town of Lincoln, for environmental pollution. The state’s decision to test in this manner was an advanced one for the times. Those tests and subsequent tests showed that the wellfields and the aquifer from which they drew water were contaminated with a variety of volatile organic chemicals (“VOC’s”), including perc, 1,1-dichlorethane, 1,1-dichloroethylene, 1,2-transdiehloroethy-lene, 1,1,1-trichloroethane, trichloroethylene, and triehlorofluoromethane. ■ The wells, which supplied water to Cumberland and Lincoln, were immediately closed. Subsequent investigation by the United States Environmental Protection Agency (“EPA”) pointed to an area across the Blackstone River and east of the wells as the likely source of the aquifer’s contamination. That area was occupied by the Peterson/Puritan manufacturing facility, which produced and packaged various household and personal care products. Peterson/Puritan is a subsidiary of the plaintiff CPC International, Inc., now known as Bestfoods. This facility is where the tank car accident happened in 1974. This suit demonstrates the immense cost, complexity and duration of environmental insurance litigation. In 1987, CPC sued its excess carrier, Northbrook Excess and Surplus Liability Company, for indemnification of costs incurred during the EPA ordered clean-up of pollution at Peterson/Puritan. This is the third appeal to this court. Judgments have twice been vacated, this court has certified a question to the Rhode Island Supreme Court, the Rhode Island Supreme Court has issued an opinion which clarified Rhode Island “trigger of coverage” law, and the ease has been twice tried to juries. We discuss that history later. In 1997, a jury awarded CPC $12,632,885.94 in damages plus over $5 million in pre-judgment interest. That award is the subject of this appeal. As is common in these cases, the jury had two main issues to decide. The first was whether an “occurrence” causing property damage took place between July 1,1979, and July 1, 1980, which was the policy period during which Northbrook provided coverage. The second was to determine whether the property damage resulted from company activities that were excluded from coverage by the policy’s standard “pollution exclusion” provision or whether the relevant occurrences fit within the. also standard “sudden and accidental” -exception to that exclusion (and was thus covered). As evidenced by the verdict, the jury decided both issues in favor of CPC. Northbrook attacks the verdict on both fronts. First, Northbrook says the evidence compels the conclusion that there was no occurrence during the policy period. North-brook says that the “property damage” at issue in the case is strictly in the area immediately surrounding the Peterson/Puritan manufacturing facility, and that CPC either knew or should have known of this property damage prior to the policy period. Therefore, there was no “occurrence” (as that term is defined in Rhode Island law) during the policy period and no coverage is available. Northbrook buttresses this challenge by saying it was unfairly hampered in its presentation of its ease (that CPC knew or should have known of the property damage) when the trial court excluded evidence about environmental events before 1979 elsewhere in the CPC corporate family. Northbrook says that the proposed evidence, two prior judicial decisions in which CPC was a party, contained fact-findings relevant to the state of CPC’s internal knowledge and the state-of-knowledge in the industry about groundwater pollution. Northbrook’s says that the evidence demonstrates that CPC’s regular waste-disposal practices and the 1974 perc spill should have put CPC on notice of property damage long before 1979, and thus there is no coverage during the insuring period. Second, Northbrook challenges the jury’s conclusion that the property damage was caused by a “sudden and accidental” discharge. Northbrook concedes the 1974 perc spill was sudden and accidental, but argues that the evidence compels a conclusion that it was Peterson/Puritan’s routine waste-disposal and polluting practices, not the 1974 perc spill, which caused the pollution around the Peterson/Puritan site. Northbrook points out that the comprehensive general liability policy at issue here contains a standard pollution exclusion for the discharge of chemicals, and the only exception to that exclusion is for “sudden and accidental” events. Thus, Northbrook says, even if there were an occurrence during the policy period, North-brook is still not hable because the clean-up costs were driven by CPC’s routine polluting activities, not the spill. Now, twenty-five years after the tank rupture, almost twenty years after the discovery that the wells were contaminated and eleven years after the suit was instituted, we affirm the jury award. While the evidence did not necessarily require the jury’s conclusions, it certainly permitted them. We do not reach the cross-appeal. I Background Facts We set the stage for the parties’ arguments with a general outline of the actions and findings of the involved governmental environmental agencies as to the two well-fields and the Peterson/Puritan site. Much of this is undisputed. The appropriate inferences to be drawn from certain environmental findings are, of course, disputed, and were argued to the jury. In October 1979, the Rhode Island Department of Health, Division of Water Supply, using testing procedures advanced for the times, tested the municipal water supplies of the Town of Cumberland and the neighboring Town of Lincoln and discovered VOC contamination. The Quinnville Wellfield, supplying Cumberland, is located on the west side of the Blackstone River, across the river and approximately three fifths of a mile from the Peterson/Puritan manufacturing facility. The Lenox Street Well, supplying Lincoln, is located on the same side of the river as Peterson/Puritan, over a mile away. Both wells were closed immediately after the contamination was discovered. In 1980, the EPA hired environmental engineers Goldberg-Zoino and Associates (“GZA”) to conduct a hydrogeologic study of portions of the aquifer underlying and around the Blackstone River in order to establish the source and extent of the groundwater pollution contaminating the wells. In 1982, GZA reported its conclusion that the most probable source of the contamination of the Quinnville Wellfield was the Peterson/Puritan plant. GZA relied principally on three critical findings: (1) the highest levels of VOC groundwater contamination were observed in the industrial area where Peterson/Puritan was located; (2) the VOC’s found in the Quinnville Wellfield were the same as those found in the groundwater in the industrial area; and (3) Peterson/Puritan was the only operation in the area known to use and store the VOC’s found in the water supply. According to GZA’s report, the Blackstone River typically acts as a groundwater flow boundary, meaning that groundwater on the east side of the river is generally unable to cross over to the west side. When the wells are pumping, however, the river is not an effective barrier and groundwater is drawn into the wellfield. During sustained pumping of the Lincoln wellfield, ... a portion of the flow crosses the Blackstone from the Cumberland side of the river. Flow enters the wellfield via both induced infiltration from the river and direct groundwater flow beneath the river from the northeast corner of the site. In addition, the levels of the contaminant concentration in the wellfield are directly related to the intensity of the pumping. When the wells are turned off and the flow-field reverts to its natural state, as described above, contaminant levels decrease significantly. When the wells are turned on again, contaminant concentrations increase with pumping duration to their previous levels. This indicates that contaminant flow is being induced via pumping from outside of the normal recharge area for the wellfield, i.e. the Cumberland side of the, Blackstone River [where Peterson/Puritan is located]. GZA concluded that the pumping of the wells drew contaminants from the area immediately surrounding the Peterson/Puritan plant under and across the river into the wellfield. Based on this analysis, Peterson/Puritan became the EPA’s primary focus. Following this report, Peterson/Puritan hired Malcolm Pirnie, Inc., another environmental engineering firm, to further analyze the VOC groundwater contamination of the wellfield. Malcolm Pirnie’s report, issued in June 1983, supported GZA’s conclusion. “Peterson/Puritan is responsible for the release of VOC’s to the aquifer sufficient to have contributed to the past contamination of the Quinnville Wellfield----” In addition, “the sustained pumping from the wellfields could draw contaminated groundwater from the east to the west side of the Blackstone River where it could be drawn into the wells.” The report stated that the wellfield was no longer contaminated, but that contamination would be renewed by the recommencement of pumping within the wellfield without prior interception of the contaminant plume. In 1983, the EPA designated an area including both the Peterson/Puritan site and the aquifer east of the Blackstone River as “OU-1,” and placed the site on its National Priorities List. In 1987, following several years of negotiations with Peterson/Puritan, the EPA issued an Administrative Order by Consent, pursuant to the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675. That Order identified Peterson/Puritan as the party responsible for the release of the hazardous substances migrating into the groundwater at OU-1. As required by .the Order, Peterson/Puritan undertook a Remedial Investigation/Feasibility. Study (“RI/FS”) to investigate additional responsible parties and further analyze site conditions. This report was prepared by ABB Environmental-Services and issued in 1993. ABB, like Malcolm Pirnie, largely confirmed GZA’s finding that Peterson/Puritan was the principal source, of VOC contamination in the aquifer and the Quinnville Well-field. The EPA issued its Record of Decision (“ROD”) for the OU-1 site in June 1993. The ROD stated that the Quinnville Wellfield “was a drinking water source in 1979, when it was closed due to OU-1 contamination. Prior to its closure, the wellfield provided water that did not pose any health threats.” The ROD further stated that the 1974 perc spill, along with historical releases into manholes and catch basins, was the primary source of contamination of the Quinnville Wellfield. The ROD concluded that the wells could be reopened when the contamination was remediated, and ordered CPC to clean up the OU-1 area as a prerequisite for the reopening of the wells. Finally, because the well-field was “a receptor of OU-1 contamination,” and “the potential future use of the wellfield as a drinking water source is a realistic possibility,” the December 13, 1995, Consent Order between CPC and the EPA extended OU-1 to include the Quinnville Wellfield. II Insurance Coverage and Terms A. Primary Coverage and Town of Lincoln Suit In October 1982, based on GZA’s report, the Town of Lincoln filed suit against Peterson/Puritan for damages resulting from the contamination of its water supply. In June 1984, the suit was settled when Peterson/Puritan agreed to pay the Town of Lincoln $780,000 and install and maintain engineering controls in exchange for the Town’s release of all potential claims. The settlement was paid by Northwestern National Insurance Company, CPC’s primary insurance carrier, under a policy with a coverage limit of $1 million. On April 10, 1987, Northwestern National informed CPC and Northbrook that the primary insurance policy was exhausted, thus bringing Northbrook into the arena. B. The CPC-Northbrook Insurance Policy From July 1, 1979, to July 1, 1980, CPC was insured by Northbrook under an umbrella liability policy. This policy, with a limit of $25 million, was CPC’s first layer excess policy, hence the next coverage in line after Northwestern National’s $1 million primary policy was exhausted. The Northbrook policy insured CPC worldwide, including CPC’s subsidiaries and all other entities financially controlled by CPC. Under Section 1, “Coverage,” the policy stated: The Company hereby agrees, subject to the limitations, terms and conditions hereinafter mentioned, to indemnify the Insured for all sums which the Insured shall be obligated to pay by reason of the liability A. imposed upon the Insured by law, or B. assumed under contract or agreement by the Named Insured, for damages on account of A. Personal Injuries B. Property Damage C. Advertising Liability, caused by or arising out of each Occurrence happening anywhere in the world. The Definitions section contained the following definitions: “Property Damage” shall mean loss of or direct damage to or destruction of tangible property (other than property owned by any Insured) and which results in an Occurrence during the policy period.... “Occurrence” means an accident, event or happening including continuous or repeated exposure to conditions which results, during the policy period, in Personal Injury, Property Damage or Advertising Liability neither expected nor intended from the standpoint of the Insured.... The Exclusions section provided: This policy shall not apply to Personal Injury or Property Damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental. In a “reservation-of-rights” letter dated April 27, 1987, Northbrook advised CPC that it had no obligation to indemnify CPC for claims arising from the Town of Lincoln action or the EPA-ordered cleanup. The letter was based, inter alia, on the pollution exclusion and on the date of occurrence. in This Litigation A.- Commencement of Suit and Initial Application of New Jersey Law On July 21, 1987, CPC filed suit against Northbrook in New Jersey Superior Court. CPC alleged that all of the conditions precedent to insurance coverage had been satisfied or waived, and sought a declaration that Northbrook was obligated to indemnify CPC for Peterson/Puritan’s “entire ultimate net loss” in excess of Northwestern National’s $1 million coverage limit. CPC also sought a judgment estopping Northbrook from further denying coverage. Northbrook removed the action to the U.S. District Court which transferred it to the District of Rhode Island pursuant to 28 U.S.C. § 1404(a). CPC then filed a motion for a declaration that the substantive law of New Jersey still governed the litigation. The motion was allowed on the basis that a New Jersey eourt would apply New Jersey law to the case because New Jersey was the state which connected all the parties together and so had the most significant interest in the outcome of the case. See CPC Int’l, Inc. v. Northbrook Excess & Surplus Ins. Co., 739 F.Supp. 710, 715 (D.R.I.1990). Applying New Jersey law, the district court allowed Northbrook’s motion for summary judgment on the ground that the pollution exclusion clause in the policy precluded coverage for gradual pollution. See CPC Int'l, Inc. v. Northbrook Excess & Surplus Ins. Co., 759 F.Supp. 966 (D.R.I.1991). The district eourt predicted that the New Jersey Supreme Court, which had not ruled on the issue, would define the term “sudden and accidental” as referring to events which are unexpected and unintended and which occur abruptly or over a short period of time. See id. at 973. The court ruled that CPC had not shown that the contamination was within this definition. On appeal, this court reversed and remanded, saying the district court’s prediction gave insufficient weight to the decisions of the New Jersey Superior Court’s Appellate Division (New Jersey’s intermediate appellate court), which had concluded that the term “sudden and accidental” was ambiguous and had to be interpreted favorably to insureds as providing coverage for gradual pollution. This eourt concluded that the New Jersey Supreme Court would more likely construe “sudden and accidental” to mean only unintended and unexpected, i.e., not requiring the event to be abrupt or immediate. See CPC Int’l, Inc. v. Northbrook Excess & Surplus Ins. Co., 962 F.2d 77, 97 (1st Cir.1992). B. Round Two: Application of Rhode Island Law and First Trial On remand, Northbrook moved for reconsideration of the initial choice-of-law ruling in light of an intervening change in New Jersey choice-of-law rules. That motion was granted on the basis that New Jersey law now dictated that the substantive law of Rhode Island governed the case. See CPC Int’l, Inc. v. Northbrook, 839 F.Supp. 124 (D.R.I.1993). This court denied CPC’s petition for mandamus. The ease went to a jury trial on January 28, 1994. At the close of CPC’s evidence, Northbrook moved for judgment as a matter of law under Fed.R.Civ.P. 50(a). On February 16, 1994, the district court granted Northbrook’s motion, saying that CPC had failed to present evidence from which a reasonable juror could conclude that there had been an “occurrence” during the 1979-80 policy period, because the perc spill took place in 1974 and there was no evidence that the contamination reached the aquifer during the policy period. C. The Second Appeal: The Trigger of Coverage Question Under Rhode Island Law On appeal, this court affirmed the application of Rhode Island law, but concluded that Rhode Island law was unclear on'the trigger of coverage and certified this question to the Rhode Island Supreme Court: What trigger-of-coverage standard would the Rhode Island Supreme Court use for determining at what point an “occurrence” causing “property damage” took place, within the meaning of the insurance policy provisions provided in the separate opinion in this case, where an insured alleges that a spill of hazardous contaminants in 1974 migrated through the groundwater, causing immediate injury to the pertinent property, which was not, in fact, discovered, however, until at least 1979. CPC Int’l, Inc. v. Northbrook, 46 F.3d 1211, 1222 (1st Cir.1995). The Rhode Island Supreme Court answered: [A]n “occurrence” under a general liability policy takes place when property damage, which includes property loss, manifests itself or is discovered or in the exercise of reasonable diligence, is discoverable. CPC Int’l, Inc. v. Northbrook, 668 A.2d 647, 650 (R.I.1995). In light of that answer, this court vacated the judgment in Northbrook’s favor and remanded the case for a new trial. The second trial was conducted in June of 1997 and resulted in the verdict for CPC. CPC was awarded $12,632,885.94 in damages plus prejudgment interest in the amount of $5,333,283. In addition, Northbrook was obligated to reimburse CPC for all costs incurred by CPC in remediating the Peterson/Puritan site after February 28, 1997. After the jury verdict, the court denied Northbrook’s motions for judgment as a matter of law under Fed.R.Civ.P. 50 and for a new trial under Fed.R.Civ.P. 59. It is from this jury verdict that this appeal is taken. IV Discussion We discuss the pertinent evidence in light of the particular claims on appeal. The facts are stated as the jury and district court could have found them. See Cambridge Plating Co., Inc. v. Napco, Inc., 85 F.3d 752, 756 (1st Cir.1996). A. The Discoverability of Property Damage Northbrook’s central argument on appeal is that its motion for judgment as a matter of law was improperly denied, because the evidence compels the conclusion that CPC knew or reasonably should have known of property damage before July 1979. Appellate review of the grant or denial of a motion for judgment under Fed. R.Civ.P. 50 is de novo, applying the same standard that governed the adjudication of the motion in the district court. See Costos v. Coconut Island Corp., 137 F.3d 46, 48 (1st Cir.1998). All of the evidence is examined in the light most favorable to the nonmoving party, drawing all possible inferences in its favor. See Cambridge Plating Co., 85 F.3d at 764. We do not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence. See Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987). We will reverse the denial of a Rule 50 motion “only if reasonable persons could not have reached the conclusion that the jury embraced.” Coconut Island Corp., 137 F.3d at 48 (citation and internal quotation marks omitted). Here, the initial issue is whether there is sufficient evidentiary support for the jury’s conclusion that there was an “occurrence” between July 1, 1979, and July 1, 1980. The terms of the policy are set forth earlier. The definition of “occurrence” is given content by Rhode Island law: [A]n “occurrence” under a general liability policy takes place when property damage, which includes property loss, manifests itself or is discovered or in the exercise of reasonable diligence, is discoverable. CPC Int’l, Inc., 668 A.2d at 650. Under this formulation, the term “occurrence” and “property damage” are closely connected: Read together, the provisions of the Northbrook policy provide coverage to an insured that sustains an occurrence—that is, an event that results in compensable property damage during the policy period. In other words, there can be no occurrence under the policy without property damage that becomes apparent during the policy period, and property loss and compensable damages cannot be assessed unless the property damage is discovered or manifests itself. “Property damage” and “occurrence” are thus inextricably intertwined. Id. at 649. Northbrook focuses its attack on the “discoverability” prong of the Rhode Island definition of “occurrence”, saying that CPC should have known that its routine waste-disposal and polluting activities and the 1974 perc spill would cause property damage long before 1979. Northbrook argues that the jury, while properly instructed on Rhode Island law, misapplied that instruction. As to how the jury applied the instruction, our knowledge is only that the jury returned a general verdict in favor of CPC in the amount of $12,632,885.94, and thus necessarily found that the property damage did not manifest itself, and could not have reasonably been discovered, before July 1979. North-brook did not request special verdicts. B. Exclusion of Evidence Before addressing the merits of the insurer’s argument on this sufficiency issue, we stop to consider Northbrook’s argument that it was.erroneously prevented from painting a fair and complete picture for the jury by the exclusion of evidence. As with any argument addressed to the exclusion of evidence, Northbrook faces the challenge of meeting the abuse of discretion standard. See Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 855 (1st Cir.1998) (citation omitted). If Northbrook were correct that the exclusion of evidence was an abuse of discretion and prejudicial, we would not reach the issue of whether there was adequate evidence to support the jury .verdict. But while Northbrook’s argument is far from frivolous, our conclusion is that the ruling was well within the court’s discretion. The major component of North-brook’s defense was that CPC should have known about the property-damage resulting from the perc spill and other polluting activities well before 1979. Towards that end, Northbrook put on state-of-the-art and state-of-knowledge evidence as to CPUs knowledge before 1979 of the dangers of release of VOC’s and perc in an effort to show that CPC knew or should have known that the chemicals would contaminate the ground and groundwater. We take it as given that such evidence may generally be helpful to the jury in determining what a party should have known at some time in the past. Findings about what another operation of the company knew and had been told about the danger of groundwater contamination of a similar type can help the jury in determining whether CPC exercised reasonable diligence with regard to this particular spill. See Chemical Leaman Tank Lines, Inc. v. Aetna Cas. and Sur. Co., 817 F.Supp. 1136, 1150 (D.N.J.1993) (admitting evidence of plaintiff .insured’s problems at other tank cleaning sites on issue of company’s knowledge). Such state-of-the-art and state-of-knowledge,evidence is used by both sides in many contexts in civil, and criminal environmental and toxic tort litigation. For example, it is used by insurers and insureds in insurance coverage eases. See Mottolo v. Fireman’s Ins. Co., 43 F.3d 723, 730 (1st Cir.1995) (discussing the usual summary judgment burden shifting rules applied to this area of law); Chemical Leaman Tank Lines, Inc., 817 F.Supp. at 1149-50 (use by insurer against insured); Hatco Corp. v. W.R. Grace & Co., 801 F.Supp. 1334, 1376 (D.N.J.1992)(insured submits state-of-knowledge evidence to oppose insurer’s contention that insured intended and expected to cause contamination at site); New Castle County v. Continental Cas. Co., 725 F.Supp. 800, 803-04 (D.Del.1989) (state-of-the-art knowledge about leachate from landfills apparently introduced by -insured on issue of whether the pollution was expected). It is also used in the allocation of responsibility under the “Gore” factors in private party CERCLA contribution actions. See Gould v. A & M Battery Tire Serv., 987 F.Supp. 353, 363-64 (M.D.Pa.1997)- (successor operator presents state-of-the-art defense). Some state-of-the-art evidence was introduced here, but specific evidence was excluded. Here, Northbrook sought to introduce (1) judicial decisions in two previous CPC coverage suits involving groundwater contamination at CPC facilities in New Jersey and Michigan, see CPC Int’l, Inc. v. Hartford Accident & Indemnity Co., Bergen No. L37236-89 (N.J.Super. April 15, 1996); CPC Int’l, Inc. v. Aerojet-General Corp., 825 F.Supp. 795 (W.D.Mich.1993); (2) trial testimony of CPC’s Senior Corporate Counsel and others as to whether certain facts found in those opinions were correct; and (3) certain related documents. There was no specific offer of proof as to what any of the proposed witnesses would say; their depositions had not been taken. Nor was this broad band of evidence narrowly tailored to the precise issues involved at trial. Northbrook argued that such evidence would show that CPC knew long before 1979 about the harmful effects of VOC groundwater contamination. Northbrook wanted to introduce certain findings of fact contained in the judicial decisions establishing that CPC was cleaning up groundwater contamination in its facilities before the 1970’s and that one state court had enjoined CPC from using lagoons for waste disposal because of the contamination which resulted. CPC responded that circumstances at the Michigan and New Jersey sites were very different from those at Peterson/Puritan, and that the prejudicial and confusing effect of admitting the decisions would far outweigh their probative value. The New Jersey ease was a coverage suit filed by CPC for indemnification of environmental remediation costs incurred during the clean-up of three facilities operated by a-CPC subsidiary. All three sites had VOC groundwater contamination from the use of underground storage tanks and lagoons into which aqueous chemical waste residues were deposited. The Michigan ease was a consolidated CERCLA action where numerous parties contested liability for the cleanup of a dormant manufacturing facility which had heavy soil, surface water, and groundwater contamination, principally from the use of unlined lagoons as sites for chemical waste disposal. After extensive voir dire, the district court excluded the decisions on Fed.R.Evid. 403 grounds, saying first that their introduction would require a “replay of the litigation of those two eases,” in that the parties would have to argue about the similarity of the previous lawsuits to the instant case. This would take “much time and considerable effort, and I think with little result.” The court also said that the opinions were not relevant to whether CPC could have discovered property damage in the exercise of reasonable diligence, because the facts underlying the two opinions were different than the facts here; moreover, neither opinion addressed the issue of “property damage” as defined in the policy. The court concluded that introduction of the prior decisions could prejudice the jury about CPC and its conduct in the instant case. We start with Northbrook’s initial burden of showing that the proffered evidence was relevant. On this, there is considerable confusion. If the proffered evidence plainly showed that the other sites involved similar chemicals and similar methods of transport and contamination, we could easily find the evidence relevant. But the record is confused and confusing. It appears that the other sites involved largely chemicals which were not VOC’s at all and included phenols and chlorides. It also appears that the sites did not involve a- massive quickly-happening and quickly disappearing flood of a chemical, such as the 1974 perc spill, but slow seepage and spillage from constantly filled waste lagoons. But recognizing that knowledge is often gained from analogous events as well as from identical events, we will assume the evidence was at least somewhat relevant. Under Rule 403, the district judge was then required to determine whether “its probative value [was] substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” .The dangers of unfair prejudice were certainly real, as the trial judge recognized. “Unfair prejudice,” as the Advisory Committee Note teaches, means an “undue tendency to suggest decisions on an improper basis, commonly, though not necessarily, an emotional one.” Northbrook sought to introduce evidence in the form of judicial decisions that two other courts had made findings that other CPC operations had contaminated groundwater. Citizens do not look fondly on industrial polluters, particularly when the industries have been found to be such by a court. There was a danger such evidence would lead to a decision based on emotion or a desire to punish. We have said exclusions under Rule 403 were appropriate where such dangers are strong. See United States, v. Aguilar-Aranceta, 58 F.3d 796, 800-802 (1st Cir.1995); LaPlante v. American Honda Motor Co., 27 F.3d 731, 739-40 (1st Cir.1994); cf. Nickerson v. G.D. Searle & Co., 900 F.2d 412, 418 (1st Cir.1990) (affirming exclusion of questions of medical expert on his work in abortion climes because of danger of an emotional reaction). By focusing on judicial findings, North-brook ran into other difficulties, ones this court described in Kinan v. City of Brockton, 876 F.2d 1029 (1st Cir.1989). In Kinan, the plaintiff sought to introduce evidence of two previous civil rights actions filed against the same police officer whose conduct was the subject of the instant suit; the plaintiff sought to introduce those previous decisions as proof that the defendant had a custom or policy of depriving its citizens of certain constitutional rights. See id. at 1033. The district court excluded the evidence. See id. Kinan affirmed the exclusion on the basis that the evidence, even if relevant, would result in jury confusion, wasted time, and be unfairly prejudicial. See id. at 1034-35. Kinan based its reasoning in part on the fact that the proffered cases had settled prior to trial and were decided on the basis of negotiation, not adjudicated findings of fact. See id. While Kinan is far from controlling, the dangers warned against in Kinan are real: [Introducing ■ evidence of the two other cases would inevitably result in trying those cases, or at least portions of them, before the jury. The merits of the two other cases would become inextricably intertwined with the case at bar. The result would be confusion and consumption of a great deal of unnecessary time. Id. at 1034. These concerns were echoed by the district court in excluding Northbrook’s proffered evidence. Weighed against this is the seemingly weak probative value of the evidence. In order to strengthen that probative value, Northbrook would have had to introduce evidence perfecting the analogy of the other sites and chemicals to the ones at issue in this trial. That, in turn, would have led, as the district court aptly noted, “to a replay of the litigation of those other two cases.” And that, in turn, could have misled the jury and certainly would have caused delay. The call made by the experienced trial judge, who had the look and feel of the trial before him, was eminently reasonable and not an abuse of discretion. C. Sufficiency of Evidence on Discoverability We return to the picture as it was painted for the jury. CPC and Northbrook presented two conflicting views of what CPC actually knew and what CPC should reasonably have known about pollution around the plant and the effect of the perc spill. Here, a jury rejected Northbrook’s claim that the state-of-knowledge about the dangers of VOC’s was such prior to 1979 that CPC was on notice about the dangers of groundwater contamination. On appeal, Northbrook constructs its argument—that CPC knew or reasonably should have known of that damage before 1979—out of these major elements: 1. CPC had actual knowledge of the perc spill in 1974. 2. CPC should have known that the perc from the spill would enter the groundwater within a few days. 3. CPC knew in 1974 that perc was a hazardous substance from the Chemical Safety Data Sheets (“CSDS”), which stated that “[i]f swallowed, perchlorethylene liquid has toxic effects.” 4. In 1972, the Manufacturing Chemists Association, the distributors of the CSDS for perc, distributed a manual entitled “Guidelines For Chemical Plants in Prevention, Control, and Reporting of Spills,” which warned: 2.1.6 Pollution of Ground Waters While many spills result in detrimental effects on sewage treatment systems of surface water, some can affect the quality of ground. waters. Leaks from storage tanks ... can percolate downward or laterally into shallow waters. The geology of the area is an influencing factor in determining the migration of spills of this type. Sandy soils are particularly subject to percolation of pollutants into ground waters This statement did not, however, refer specifically to perc. CPC opposed Northbrook’s account with evidence that there was little reason before 1979 to think that a perc spill, or even historic releases of VOC’s into manholes or catch basins at the plant, would descend into the aquifer, move laterally into the wellfields, and cause property damage. CPC put on expert testimony that the dangers known to be associated with exposure to perc in 1979 were of skin contact, inhalation, and possible asphyxiation. CPC’s experts said that these were the primary dangers that were known concerning VOC’s. As to the pre-1979 state-of-knowledge about responding to a perc spill, CPC’s evidence was that the earliest literature on that particular chemical was information in 1978 from the National Firemen’s Protection Association. That information was that such spills should be washed down with a fire hose. Those who actually dealt with the 1974 perc spill at the Peterson/Puritan facility testified that the company followed the directions of the Rhode Island Department of Environmental Management and washed down the spill and then covered it over with soil or gravel. The primary risk people were then concerned with was that of fire. Witnesses testified that there was little or no contemporary awareness about the risk and effect of groundwater contamination. Indeed, even as of 1979, there were no state or federal standards for impermissible levels of perc in drinking water. We conclude that the jury could reasonably find, as it implicitly did, that the earliest discovered or discoverable property damage was the contamination of the Quinnville Well-field which caused it to be closed in 1979. The evidence did not compel a finding in Northbrook’s favor.' D. The Pollution Exclusion and the Sudden and Accidental Exception Having rejected Northbrook’s challenge to the jury’s finding that there was an occurrence within the policy period, we turn to its related argument that the property damage resulted from activities within the policy’s pollution exclusion, i.e., that CPC did not meet its burden of proving any “occurrence” was caused by a “sudden and accidental” discharge. Northbrook does not dispute that the 1974 pere spill was sudden and accidental as that term is defined by Rhode Island law. Rather, its argument is that the perc spill is beside the point because the property damage for which the indemnification is sought is from all of the pollution at the Peterson/Puritan site, and this pollution is largely the result of the regular and routine polluting activities which took place at the plant over many years. This pollution included washing waste-water containing chemicals down various sinks and drains at the plant which discharged into the septic system and leaching fields. It also includes minor leaks and spills that occasionally took place at the chemical tank farm, where the spilled chemicals would travel directly through a gravel floor into the ground. Northbrook contends that these activities were not sudden and accidental, and thus are not covered under the pollution exclusion. The existence of a single sudden and accidental event, Northbrook says, such as the 1974 perc spill, does not mean that CPC may avoid the consequences of its ongoing contamination. Northbrook’s argument falters on the fact that the jury accepted an alternative view of the evidence which has adequate support in the record. This alternate view is that the indemnification is sought for clean-up costs mandated by the EPA for OU-1 in its efforts to protect and restore the Quinnville Well-field, that the pere spill caused the damage to the wellfield, and that remediating the contamination from the perc spill is the principal source of the costs—including, as explained below, costs for remediating contamination which originated from routine activities at the plant. Evidence upon which the jury could rely included the ROD, which stated that the wells had not been contaminated before 1979 and that, but for the contamination, the wells could be reopened. Referring to the perc spill, the ROD stated that “this spill, along with historical releases into manholes and catch basins, ... is the primary source of contamination.” (Emphasis added). The ROD described the wellfield as “a receptor of OU-1 contamination” and said that “the potential future use of the wellfield as a drinking water source is a realistic possibility.” The ROD thus required CPC to clean-up the OU-1 area to drinking water standards—a significant point which emphasizes the EPA’s focus on restoring the wellfield to use, not merely cleaning the soil (although one is prerequisite to the other). The jury could also credit evidence that in the period before the pere spill such contamination as existed at the plant was trapped in the soil and did not migrate into the groundwater, and that the perc spill was the vehicle which brought the contaminants into the groundwater. On this point, there was expert testimony that the perc spill was responsible: some of the perc volatilize, forming a large, spreading vapor cloud which moved through the soil slowly, dissolving contaminants in its path, carrying those contaminants along with it as it descended into the groundwater. It is true, as Northbrook argues, that under the 1995 Consent Decree, CPC must carry out the remedy in the ROD including: (1) the excavation of contaminated soil in manholes and catch basins at the facility; (2) the'capping of soil in the tank farm and paving of soil in the O’Toole property; and (3) the implementation of a soil venting and soil vapor extraction system. But the jury apparently believed, on the evidence, that these costs were necessitated by the clean-up of the aquifer so that the wells could be restored, and that it was primarily the perc spill which necessitated that clean-up. The evidence does not compel a finding in Northbrook’s favor on this point. The jury could reasonably have found that contaminants released at the plant would not have caused any property damage absent the perc spill, and that the perc spill was therefore the real and ultimate cause of the environmental damage to the wells. And the jury could reasonably find that the costs incurred by CPC during the EPA-ordered clean-up are for remediating pollution so that use of the Quinnville Wellfield might resume. In sum, Northbrook’s challenge fails. The issues here were for the jury to decide and there was sufficient evidence to support the verdict. See New Castle County v. Hartford Accident and Indem. Co., 933 F.2d 1162, 1192 (3d Cir.1991). E. Microanalysis The parties and the amicus have argued in their appellate briefs about “microanalysis.” Northbrook suggests two different concepts under the label of “microanalysis.” The first is that where there is a history of a pollution-prone operation, it is wrong to analyze each single polluting event to determine whether it was “unexpected,” and thus perhaps subject to characterization as “sudden and accidental.” See, e.g., Lumbermens Mut. Cas. Co. v. Belleville Indus., Inc., 938 F.2d 1423, 1427-30 (1st Cir.1991) (rejecting such an approach). Amicus joins this argument, echoing this court in arguing that such an approach would “eviscerate the exclusion for pollution.” Id. at 1428. Various courts have characterized the so-called “microanalysis” approach as attempting to “break down [regular polluting activities] into temporal components in order to find coverage where the evidence unequivocally demonstrates that the pollution was gradual,” Smith v. Hughes Aircraft, 22 F.3d 1432, 1438 (9th Cir.1993) (internal quotation marks omitted); see American States Ins. Co. v. Sacramento Plating, Inc., 861 F.Supp. 964, 971 (E.D.Cal.1994), or as “an ill-fated effort to distinguish between virtually indistinguishable occurrences.” Lumbermens Mut. Cas. Co., 938 F.2d at 1428; see also Charter Oil Co. v. American Employers’ Ins. Co., 69 F.3d 1160, 1170 (D.C.Cir.1995) (describing approach as attempt to “disaggregate” “an activity occurring over an extended period”). The facts of this case do not invoke any of those perils. This is not an instance of attempting to parse a sequence of events in regular polluting activities’ into component parts and then arguing whether each part is sudden and accidental. Rather, there was a massive, sudden and accidental event in the perc spill and it was up to the jury to decide whether that, or the ongoing pollution, led to the property damage for which indemnification is sought. The short answer to Northbrook’s first “microanalysis” argument is then that this case does not raise that issue at all. The second concept Northbrook raises under the label of “microanalysis” is whether damages for sudden and accidental releases may be parsed out from damages caused by routine, regular pollution within the exclusion. Massachusetts law, for example, allows for this possibility where the damage from sudden and accidental releases are identifiable and are themselves appreciable (or not de minimis) and compensable. See Highlands Ins. Co. v. Aerovox, Inc., 676 N.E.2d 801, 806, 424 Mass. 226, 234 (1997); Nashua Corp. v. First State Ins. Co., 648 N.E.2d 1272, 1275-76, 420 Mass. 196, 202-203 (1995); see also Millipore Corp. v. Travelers Indem. Co., 115 F.3d 21, 34 (1st Cir.1997). In those cases it was in the interest of the insured companies to'try to identify and carve out a portion of the damages as being attributable to sudden and accidental events (for which there was coverage) when the general damage suffered was attributable to regular polluting activities which were subject to the pollution exclusion (for which there was no coverage). But the doctrine is a two-way street: here, it may have been in the insurer’s interest to carve out a portion of CPC’s claim as attributable to regular pollution activities (and thus not coverable) against a backdrop of an overall damages landscape a jury could have viewed as shaped by one sudden and accidental event. But, as a matter of trial tactics, the insurer chose not to raise the issue, and it is waived. We thus have no occasion to predict whether Rhode Island law, which governs this case, will adopt a rule similar to the Massachusetts rule. The decision of the district court is affirmed. . We have commented earlier on the enormous financial and Human resources which are expended in environmental litigation and Congress concern about this. See United States v. Charter Oil Co., 83 F.3d 510, 520 n. 14 (1st Cir.1996) (recounting studies). The specific reasons for complexity, cost and delay in environmental insurance litigation are discussed in K. Abraham, The Maze of Mega-Coverage Litigation, 97 Colum.L.Rev. 2102 (1997). While many view this expenditure of resources on transaction costs rather than on remediating contaminated sites as a significant social problem, no solution has been forthcoming. Neither the Environmental Insurance Resolution Fund bill nor other legislation proposed by the insurance industry has been enacted. Id. at 2115. . From July 1, 1979, to July 1, 1980, Northbrook served as CPC’s first layer excess insurance carrier, with a $25 million umbrella liability policy. Northbrook is now owned by Allstate. . In turn, CPC cross-appeals, saying that the district court erred in interpreting the policy to mean that Northbrook was obligated to defend CPC in the EPA administrative proceeding, and seeking as a remedy that the insurer be barred from contesting the reasonableness of the cleanup costs. CPC cross-appeals only as a method of supporting the jury verdict on other grounds. As explained infra, we do not reach the question of whether the cross-appeal is proper. . ABB, like Malcolm Pirnie, agreed with GZA's conclusion that the pump action, and thus the cone of influence of the well, drew the contamination into the Quinnville Wellfield: During pumpirig of the Quinnville Wellfield prior to 1979, groundwater contaminants on the east side of the river were drawn under the river to the municipal wells. Contaminants originating in the Primary Source Area, migrate to the southwest, under the Blackstone River, to the Quinnville Wellfield when the latter is in operation. Since the Quinnville' Wellfield's closure in 1979, contaminated groundwater in the wellfield has moved toward the river. ABB concluded that contaminant concentrations had decreased at Peterson/Puritan since the early 1980's, although the area along the tank farm, where the 1974 perc spill occurred, continued to show high concentrations of VOC contamination. . As to the Lenox Street Well, GZA hypothesized that a single source could be responsible for the contamination of both the Quinnville Wellfield and the Lenox Street Well, although GZA acknowledged that information about the flow regime around the Lenox Street Well was insufficient to confirm the hypothesis. Malcolm Pimie disputed this contention, saying that the data on area groundwater flows suggested that the contaminated groundwater under the Peterson/Puritan site would not likely have reached the Lenox Street Well given the low pumping rate of that supply well. The ROD did not include the Lenox Street Well within OU-1. . Rhode Island imposes an obligation of “reasonable" diligence under its discovery rule. The reasonable diligence test is largely what the party “should have known.” See Zuccolo v. Blazar, 694 A.2d 717 (R.I.1997); Kougasian v. Davol, Inc., 687 A.2d 459 (R.I.1997). . The court instructed the jury: "Property damage is detectable for the first time when it first (1) manifests itself, or (2) is discovered by any person, or (3) in the exercise of reasonable diligence would be discoverable by any person.” . The court entered summary judgment in favor of the insurers on the basis that CPC had failed to show an “occurrence” within the applicable policy periods. See Hartford Accident & Indemnity Co., Bergen No. L-37236-89, slip op. at 2-3. CPC is appealing that judgment. . After a trial on liability, the court held that CPC was liable under § 107(a)(2) of CERCLA as an operator of the plant through its subsidiary. See CPC Int’l, Inc. v. Aerojet- General Corp., 777 F.Supp. 549, 574-75 (W.D.Mich.1991). The Sixth Circuit, sitting en banc, reversed this decision, holding that CERCLA does not authorize liability of a parent company that makes proper use of the corporate form. See United States v. Cordova Chemical Co., 113 F.3d 572, 581 (6th Cir.) (en banc), cert. granted sub nom., United States v. CPC Int’l, Inc., -U.S.-, 118 S.Ct. 621, 139 L.Ed.2d 506 (1997). . Other circuits have affirmed the exclusion of prior judicial opinions on Rule 403 grounds, all of them citing the danger of jury confusion and prejudice to the party as bases for their decision. See Carter v. Burch, 34 F.3d 257, 265 (4th Cir.1994) (affirming exclusion of judicial letter opinion); Johnson v. Ford Motor Co., 988 F.2d 573, 579-81 (5th Cir.1993) (affirming trial court’s exclusion of evidence of five other complaints filed against manufacturer); Mendenhall v. Cedarapids, Inc., 5 F.3d 1557, 1566-70 (Fed.Cir.1993) (affirming exclusion of evidence of prior decision in subsequent related litigation); Johnson v. Colt Indus. Operating Corp., 797 F.2d 1530, 1533-34 (10th Cir.1986) (admission of prior judicial opinion brought against manufacturer was erroneous, but harmless error). . To the extent that Northbrook argued that there was no occurrence until after the policy period because of its expert's view that the spill-generated contaminants did not arrive at the wellfield by October 1979, the jury could, on the evidence, disagree with that testimony. . Northbrook’s own expert testified that there is a distinction between contamination and damage. Damage, the expert opined, does not necessarily occur where there is contamination;, rather the contamination "has to affect [the properly] to the point where it can't be used for its intended purpose.” Here, the juiy could have found that the shutdown of the wellfield on account of groundwater contamination was the property damage at issue, and that the contamination around Feterson/Puritan contributed to that damage but did not constitute damage in of itself. . Dr. Delaney testified to this effect, using a computer animation program to demonstrate to the jury the progress of the perc through the soil layers. The perc, a dense liquid, would "pancake” out when it encountered areas of less permeability as the perc descended through the soil layers. The perc would also form a vapor cloud in the soil replacing the oxygen in the soil. Because perc is a solvent, "it picked up the material coming from the leeching manhole” that it came into contact and carried it down into the groundwater. . Northbrook could have requested that the jury be given a special verdict form that required the jury to consider different aspects of the pollution at the Peterson/Puritan plant and determine exactly which portions of the pollution clean-up costs Northbrook was required to cover. Such a strategy might have reduced Northbrook’s ultimate liability, as the jury might have decided that some, but not all, of the pollution at the plant was not covered. But Northbrook decided as a matter of trial strategy to proceed with a general verdict form, playing for all or nothing. It must live with its choice. . CPC’s cross-appeal asks as a remedy that Northbrook should be estopped from challenging the reasonableness of the settlement CPC made with the EPA, and thus CPC’s remediation costs. Indeed, CPC says it makes this argument simply to support the jury’s verdict. At trial, the jury awarded CPC its full damages. We are affirming that award. Under this circumstance, there is no need to address this argument, as it is disposed by our resolution of the case.

Before SHIPMAN, District Judge. This is a libel of information in rem, founded upon the seizure of 150 bales containing unwashed wool, imported into the United .States from Cape of Good Hope about the 27th of March, 1860, in the ship Tartar. The seizure was upon land, within this district. The cause having been tried by the jury, and a verdict rendered for the claimants [Case No. 15.932a], the libellants move for a new trial on the grounds, 1. That the verdict is against the evidence. 2. For a misdirection of the judge to the jury. The act of congress, March 3, 1857 [11 Stat. 192], among other articles, exempts from duty unmanufactured wool of the value of 20 cents per pound, or less, at the place of exportation. This wool in question was invoiced and entered at the custom-house at a little less than 20 cents per pound, and, if that was its true value at the place of exportation, it would of course be exempt from duty. If its value at the place of exportation was over 20 cents, then it was subject to a duty of 24 per cent, ad valorem. Tiie collector had the wool appraised, and, the value fixed by the appraisers being over 20 cents, the wool was seized on the ground that it had been invoiced and entered at less than its value at the Cape, with intent to evade the payment of duties thereon, and was therefore forfeited. The libel is founded upon the 66th section of the act of March 2, 1799, and the 4th section of the act of May 28, 1830. The section of the former relied on provides that “if any goods, wares or merchandise. of which entry shall have been made in the offlee of a collector, shall not be invoiced at the actual cost thereof at the place of exportation, with a design to evade the duties thereon, or any part thereof, all such goods, wares and merchandise, or the value thereof, shall be forfeited.” The 4th section of the act of 1830, after providing for the examination of packages by the collector, enacts that if such goods be subject to ad valorem duty, the same shall be appraised; and if any package shall be found to contain any article not described in the invoice, or if such package or invoice be made up with intent, by false valuation, or extension, or otherwise, to evade or defraud the revenue, the same shall be forfeited. So far as this motion for a new trial is founded upon the claim that the verdict was against the evidence, I am clear that it should be overruled. The evidence for the claimants was full and explicit, and, moreover, was that kind of evidence which the supreme court of the United States, in tiie case of Clifton v. U. S., 4 How. [45 U. S.] 242, held to be the best in such cases. It was that kind of evidence which the libel-lants in this case failed to produce, although an open commission was sent to the Cape of Good Hope to take testimony, where they had a consul residing, and where the value of this wool could have been shown to be above 20 cents per lb., if such had been the fact. It appeared on the trial, that one of the hundred and fifty bales seized, contained washed wool, of a fine quality, and that this bale was greatly undervalued, and it is insisted by the government, that this bale, at least, should have been forfeited by the jury, and that to that extent their verdict was clearly against the evidence, if the statute forfeited the merchandise solely on the ground of undervaluation. But the statute is explicit on this point. There must concur with the act of undervaluation, the “intent to evade and defraud the revenue.” The tendency of the evidence went to show that this bale of washed wool was included in the consignment and fn the' invoice and entry by inadvertence and mistake. The testimony of the consignees is that they never knew that there was any such article in the consignment, until informed by the custom-house officers long after the seizure; that they offered the whole one hundred and fifty bales (including the washed bale) at the same price, supposing it all to be unwashed wool. It was conceded on the trial, or at least assumed by the court, upon the evidence, that this bale of washed wool was greatly undervalued in the invoice and entry, and the jury were instructed that if any such undervaluation was with intent to evade the paj-ment of duties, they should forfeit it. The jury must have found that there was no fraudulent or illegal intent, and I see no reason for disturbing the verdict on that point. This motion, therefore, for a new trial, on the ground that the verdict was against the evidence, must be denied. But it is claimed as another ground for a new trial, that the construction given by the court in the charge to the jury, of the two acts of congress referred to, and especially that given to the 66th section of the act of 1799, was erroneous. This was the main point of controversy on the trial. The first count of the libel or information is founded unon the 66th section of the act of 1799, and the jury were instructed that if they should find that the wool was purchased bona fide at the Cape, in open market, in the ordinary course of trade, and that the invoice and entry truly stated the actual cost of the same at the place of exportation. it could not be forfeited, and their verdict must be for the claimants. But if the wool was obtained by the consignors in any other mode than by such bona fide purchase, they must then inquire what was its true value at the Cape, and if the price at which it was invoiced and entered truly stated such value, then their verdict must be for the claimants. But, if the price on the invoice and entry was below the true value, and was inserted with intent to evade the duty, then their verdict must be for the government. It is strenuously insisted that this instruction to the jury, so far as it relates to the invoicing and entry of goods at their actual cost, under the act of 1799, is erroneous, although no case is cited in support of this claim. I am referred by the attorney for the government to the frequent use of the word “value” in the -act of 1799, and in subsequent acts relating to the same subject, and it is urged that the only just and consistent construction is that which reads the words “actual cost” as meaning “actual value.” A brief examination of the authorities will show that this claim is not well founded. This 66th section has been frequently subjected to judicial construction. In the case of U. S. v. Sixteen Packages [Case No. 16,-303], decided in 1819, which was an information founded on this section, Mr. Justice Story held that forfeiture was not inflicted if the goods were invoiced and entered at the actual cost of a bona fide purchase, although that might be below the actual value. In Ninety-Five Bales of Paper v. U. S. [Id. 10,274], decided in 1829, it was held, on appeal, by Livingston, C. J., that the term “actual cost” applied also to goods manufactured abroad by the importer, and by him exported to the United States. In that case it was decided that all that was to be added to the cost of the raw material was the price or value of the labor employed in the manufacture, and the expense of transportation to the seaport whence it was shipped to the United States, and that the sum of these three items was the proper one to be entered in the invoice and entry as the actual cost. From the remark of the secretary of the treasury, in his report to the house of representatives, 17th January, 1817, this would seem to be the view entertained by the collectors, and in accordance with their practice under it. As the law then stood it worked injustice to the merchant who purchased his goods in the foreign market, paying the market price for them; for it is obvious that the cost price of purchased goods, upon which cost price duties were to be assessed, would ordinarily be enhanced by an amount equal to the profit of the manufacturer, and thus, in effect, the purchaser of foreign goods who imported them would be compelled to pay a higher rate of duty than the foreign manufacturer who sent to the United States the goods to be manufactured. The act of April 20, I8IS [3 Stat. 433], and especially the act of March 1, 1823 [Id. 729], remedied the unequal operation of the law in some particulars. But the test of forfeiture of goods purchased in the foreign market, as fixed by the G6th section of the act of 1799, still remained in full force. Indeed, the basis of valuation upon which duties were to be assessed remained unchanged notwithstanding the 5th section of the act of 1818 provided that the owner or importer should declare on oath that the invoice exhibited the true value of the goods in their then state of manufacture. In Tappan v. U. S. [Case No. 13,749], decided in 1822, Mr. Justice Story held, after a thorough discussion of the subject, that the cost price and not the real value was still the basis of valuation for the assessment of duties. A fortiori goods entered at their cost price in a bona fide purchase could not be forfeited because entered at cost. The same construction was given to the statutes as, they then stood, by the supreme court of the United States, in U. S. v. Tappan, 11 Wheat. [24 U. S.] 419. The latter case was argued by eminent counsel, and an elaborate opinion given by the court In U. S. v. 12 Casks [Case No. 16,553], which was an information on the 4th section of the act of 1830, decided in 1834, Mr. Justice Hopkinson held that, “Two tests of value are given by the revenue laws: 1. In ease of the purchase of goods in a foreign place, exported to the United States, the true value at which they must be invoiced and entered is the actual cost and price at which they were sold and purchased. 2. In case of goods sent to this country by the manufacturer, on his own account, the true value at which they must be invoiced and entered, is the market price or value at the place of exportation.” These are the precise tests submitted to the jury in the case now under consideration, with the liberal qualification for the government added that the purchase must be in the open market, in the ordinary course of trade, thus excluding such purchases as might be made under circumstances calculated to depress the price I>aid below that of the general market. This rule is believed to be not only warranted by the statute, but eminently just and reasonable in itself. No better or safer standard of value can be found than that which is fixed by the scale of prices paid in the market, in the course of bona fide sales. In Alfonso v. U. S. [Case No. 188], decided in 1843, which was a libel of information on this 66th section of the act of 1799, while deploring the endless embarrassments arising out of any attempt to fully harmonize and reconcile all the various separate acts of congress relating to the collection of the revenue, Judge Story still adhered to the construction of the act of 1799, as laid down by him in the cases in Mason, already cited. The supreme court of the United States have repeatedly held that the 66th section was not repealed, but remained in full force. This was either assumed or directly decided in Woods v. U. S., 16 Pet. [41 U. S.] 342; Clinton v. U. S., 4 How. [45 U. S.] 242; Buckley v. U. S., Id. 251. The controversy has been renewed from time to time, and as late as 1854 reappeared in the supreme court. In the case of U. S. v. Sixteen Packages, 17 How. [58 U. S.] So, and in the three cases that follow in the same volume, it was held that the 66th section of the act of 1799 was still in full force. I judge from an examination of that case that the information was founded solely upon that section. And it was argued that it was repugnant to and repealed by the 13th and 15th section of the act of 1S23, and by the 17th section of the act of 1842, and the court below so held. But the supreme court held that the latter acts had no such effect, and that the 66th section was still in force, reversing the judgment below. But the government concedes that this 66th section is not repealed, in the strict sense of that term. One of the counts in this information is founded upon it. Still it is earnestly urged that it is modified; that the word “cost” therein has lost its original signification, and by subsequent legislation has been transformed in meaning into “value.”In other words that congress has, in effect, struck out of the section the “cost,” and inserted that of “value.” We have already shown that this claim is not warranted by' the decided cases, and we think it has no foundation in reason, or in any sound rule of construction. Such an interpretation would be calculated to mislead the unwary, and would convert a highly penal statute into a trap for the honest importer. It is hardly necessary to add that the grounds upon which this ease is disposed of do not reach the question as to the present basis of valuation, upon which duties are to be assessed. This is quite another and different subject. The penalties for mere undervaluation, whether in form of fines or additional duties, rest upon their own ground. In the case of this wool, if its value at the place of exportation was over 20 cents per pound, then it was liable to a duty of 24 per cent. But that is not the question now before the court, nor the one presented to the jury. The only question disposed of is, can this wool, having been purchased at the Cape of Good Hope, bona fide, in the open market, in the ordinary course of trade, and invoiced and entered at its cost truly stated, be forfeited ? I think it cannot. The motion for a . new trial must therefore be overruled, and judgment be entered for the claimants, discharging the goods from the custody of the marshal.

J. SPENCER BELL, Circuit Judge. The State of West Virginia appeals from a judgment of the District Court requiring the defendant Boles, Warden of the penitentiary, to release the petitioner Mounts from custody. The judgment of the District Court is affirmed. On May 30, 1956, Mounts was convicted of unlawful and felonious wounding, the statutory penalty for which is imprisonment for an indeterminate term of from one to five years. On May 31, 1956, when the prisoner came up for sentencing, the Prosecuting Attorney filed an information reciting four previous eonvictions for felony and involving the Habitual Criminal Act of West Virginia, Code §§ 6130 and 6131 (1961), providing for a mandatory life sentence in such cases. The District Court made the following findings with respect to what took place at that time: “At the arraignment for sentencing the petitioner appeared with his counsel, who had represented him at the trial. The court, for the first time, informed the petitioner of the filing of the petition and ordered the petitioner to “Pay attention, John Fink Mounts”. Thereafter, and without any explanation of the purposes of the petition, of the effect of the petitioner’s affirmative answers to the questions about to be asked, or of his right to stand mute (which, under the statute, would entitle him to a jury trial on the issues raised by the petition), the court read the information. The information gave the section of the statute invoked, the dates of the previous convictions, the sentences and the places of confinement, but did not further enlighten the petitioner. After reading the petition, as a whole, the court then commanded “John Mounts, you may stand up.” The court then reread each of the paragraphs having to do with the prior convictions, and asked the petitioner if he was the same person convicted of the respective offenses referred to. The petitioner made affirmative answers to each of the four questions. (Emphasis added.) “Without more, the court then sentenced the petitioner to life imprisonment. * * * ” The question before us is whether such a proceeding complies with the requirements of due process under the Fourteenth Amendment to the Constitution. In Spry v. Boles, 299 F.2d 332 (4 Cir. 1962) this Court held that the statutory requirement that the prisoner be “duly cautioned” was jurisdictionally mandatory under West Virginia law, citing Cox v. Boles, W.Va., 120 S.E.2d 707 (1961). We also held that if the prisoner was not duly cautioned prior to his admission of his identity and prior to the imposition of sentence then the failure to do so denied to the prisoner due process of law. In the Spry case, the contents of the information were read to the prisoner but the record was silent as to what was done to “duly caution” him of the effect of his answers. At that time, the Supreme Court of Appeals of West Virginia had not specifically interpreted the meaning of the words “duly cautioned” as used in the West Virginia statute. That Court has now held in a habeas corpus hearing that Mounts was “duly cautioned” within the meaning of the West Virginia statute. Mounts v. Boles, W.Va., 126 S.E.2d 393, cert, denied, 371 U.S. 930, 83 S.Ct. 298, 9 L.Ed.2d 235 (1962). But see the dissenting opinion of Justice Browning. The decision of the West Virginia Court was based upon the same facts as that of the District Court below. We are, of course, bound by the West Virginia Court’s interpretation of the statute, but we must hold that notwithstanding the fact that the procedure below complied with the provisions of the statute it did not comply with the requirements of due process under the Fourteenth Amendment. In Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954), in discussing the Tennessee recidivist statute, the Court pointed out that although the statute did not create a separate offense, its applicability to a defendant charged with being an habitual criminal must be determined in a judicial hearing. In that case the Court held the accused entitled to the privilege of counsel when such was-, requested. Cf. Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). Here the accused was not informed of the grave consequences of his answers to the questions concerning his identity. We may not speculate, as the-West Virginia Attorney General invites-us to do, that the defendant as an experienced actor knew the consequences of' his conduct . The post-conviction consideration of recidivism was a judicial' proceeding and essential fairness dictates-that the disposition of any issue determinative of the legal power of the tribunal to inflict the additional punishment must be accompanied by adequate notice to the accused that the issue is-before the Court, followed by an opportunity to be heard. United States ex rel. Collins v. Claudy, 204 F.2d 624, 628 (3 Cir. 1953). “Pay attention” and “stand up” are not adequate notice that such a. grave issue is before the Court. To satisfy the minimum requirements of fundamental fairness under the circumstances, the prisoner should have been told of' his right to admit, or to deny, or remain silent and have the issue of his identity submitted to a jury. Furthermore, he-should have been told that the consequences of his admissions would be & mandatory life sentence. “Procedural, fairness and regularity are of the indispensable essence of liberty.” Dissenting opinion of Mr. Justice Jackson in Shaughnessy v. United States ex rel. Mezei, 345. U.S. 206, 224, 73 S.Ct. 625, 635, 97 L.Ed. 956 (1953). Affirmed. . “[Wlhere the conduct of a trial is involved, the guarantee of the Fourteenth Amendment is not that a just result shall have been obtained, but that the result, whatever it be, shall [have been] reached in a fair way. Procedural due process has to do with the manner of the trial; dictates that in the conduct of judicial inquiry certain fundamental rules of fairness be observed; forbids the disregard of those rules, and is not satisfied, though the result is just, if the hearing was unfair.” Snyder v. Massachusetts, 291 U.S. 97, 137, 54 S.Ct. 330, 344, 78 L.Ed. 674 (1934) (dissenting opinion of Mr. Justice-Roberts).

KENNEDY, Circuit Judge. Plaintiff-appellant Clyde Adams (“Adams”) appeals from the judgment of the District Court granting the motion of defendants-appellees Mary Ann Vande-mark and the Human Development Corporation (“HDC”) for summary judgment in his civil rights action. Plaintiff-appellant Mark Panknin (“Panknin”) appeals from the judgment of the District Court granting the motion of defendants-appellees for a directed verdict in his civil rights action. These cases present the question of whether the defendants acted under color of state law when they discharged the plaintiffs. Defendant HDC, a Michigan non-profit corporation, conducts business in Caro, Michigan. Defendant Vandemark is the executive director of HDC. HDC employed Adams as a specifications writer from April 25, 1980 until December 7, 1981, when Vandemark fired him. He sued pursuant to 42 U.S.C. § 1983 , alleging that he had been discharged in retaliation for exercising his first amendment rights. After a jury trial Adams was awarded $40,000 damages against Vandemark, and $85,000 against HDC. Another panel of this Court reversed the judgments and remanded for a new trial , holding that the District Court had incorrectly instructed the jury as to the element of “color of law.” On remand, the District Court granted the de fendants summary judgment on the issue of whether they had acted under color of state law. HDC employed Panknin as a crew coordinator for a federally-funded weatherization program from March, 1980 through September, 1982, when Vandemark fired him. He, too, brought an action pursuant to section 1983, alleging that Vandemark fired him in retaliation for his exercise of his first amendment rights. At the close of Panknin’s case the District Court granted the defendants’ motion for a directed verdict. Panknin J.A. at 63. “The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights ‘fairly attributable to the State?’ ” Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2770, 73 L.Ed.2d 418 (1982) (citation omitted). Phrased another way, “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982). The Supreme Court has used several theories, or tests, to determine whether an action was taken under color of state law or amounted to state action. The test most relevant to this case is the “symbiotic relationship” test , which the Supreme Court established in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). In Burton a restaurant that was located in a municipally-owned parking garage refused to serve a black man. The man sued, alleging that the restaurant’s actions violated the fourteenth amendment. The Court found that the parking garage, and therefore the city, profited from the discrimination, and that the profits were “indispensable elements in ... the financial success of a government agency.” Id. at 724, 81 S.Ct. at 861. Consequently, the Court held, “[t]he State has so far insinuated itself into a position of interdependence with [the restaurant] that it must be recognized as a joint participant in the challenged activity,” and thus the restaurant’s discrimination was state action. Id. at 725, 81 S.Ct. at 862. Rendell-Baker v. Kohn, a more recent case discussing the symbiotic relationship test, presented the issue of whether a private school, whose income is derived primarily from public sources and which is regulated by public authorities, acted under color of state law when it discharged certain employees. The school was a nonprofit institution for maladjusted teenagers. The students were referred to the school by city schools or by the state department of mental health. Public funds accounted for between 90% and 99% of the school’s budget. The cities regulated the school; however, aside from general requirements such as equal employment opportunity, the regulations did not cover personnel policies. The plaintiffs had been employed at the school, and alleged that they had been discharged in retaliation for their exercise of first amendment rights. The Court held that the school’s receipt of public funds did not make the discharge decisions acts of the state: “Acts of such private contractors do not become acts of the government by reason of their signifi cant or even total engagement in performing public contracts.” Id., 457 U.S. at 841, 102 S.Ct. at 2771. Furthermore, the Court held that the extensive regulation of the school did not establish a basis for finding state action since the decisions to discharge the plaintiffs were not compelled or even influenced by any state regulation. Id. Although the Committee on Criminal Justice had the power to approve those hired as vocational counselors, the position of one of the plaintiffs, the Court held that the power was insufficient to make the discharge state action. Id. at 841-42, 102 S.Ct. at 2771-72. In Crowder v. Conlan, 740 F.2d 447 (6th Cir.1984) this Court applied Rendell-Baker and Blum in the context of whether a private hospital’s board acted under color of state law when it restricted a physician’s staff privileges. Although the hospital received considerable government funding, was subject to extensive state regulation, had two public officials on its board, and leased its facility from the county, we held that “the connections between the State and the [hospital] are insufficiently linked to the challenged actions of the defendants to warrant a finding of state action in the hospital’s decision to restrict Dr. Crowder’s staff privileges. Therefore, Dr. Crowder has not stated a claim for relief under 42 U.S.C. § 1983.” Id. at 453. Each plaintiff enumerates facts that he alleges demonstrate that HDC has a symbiotic relationship with the state of Michigan. It is undisputed that HDC was established as a non-profit Michigan corporation in order to participate in the receipt of grants to local community action programs initiated by the Director of the Office of Economic Opportunity in accordance with the Federal Economic Opportunity Act of 1964, Pub.L. No. 88-452, § 204. HDC was incorporated as a Michigan not-for-profit corporation in 1965 under the name of the Thumb Area Economic Opportunity Commission. The organization adopted its present name in 1973. By virtue of the Michigan Economic & Social Opportunity Act of 1981, Mich. Comp.Laws Ann. § 400.1101 et seq., HDC became a Community Action Agency. Mich.Comp.Laws Ann. § 400.1108; Pank-nin J.A. at 66-67. MCLA § 400.1109 describes the function of a community action agency as “serving as a primary advocate for the reduction of the causes, conditions, and effects of poverty and [providing] social and economic opportunities that foster self-sufficiency for low-income persons.” As such an agency, HDC administers federal, state, and local funds for various social programs that are established by state law. Adams J.A. at 259-62. Federal, state, and local funds constitute between 90% and 99% of HDC’s budget. Panknin J.A. at 77. Plaintiff Panknin was associated with HDC’s weatherization program. The program’s purpose is to repair the homes of lower-income people in Caro so that the homes may better withstand the winter weather. The program is handled by the United States Department of Energy, and the funds were funneled to HDC through the Michigan Department of Labor, Bureau of Community Services. The program is closely regulated by both state and federal law. HDC also worked with Caro to administer a block grant from the federal government to improve housing in Caro. Plaintiff Adams’ job as a specifications writer was to evaluate the buildings for which applications for funds had been made and to write specifications so that contractors could bid on the job. State law requires that one-third of HDC’s board of directors be composed of public officials. Mich.Comp.Laws Ann. § 400.1111. HDC conducts its business in a building owned by Caro, which leased space to HDC for thirty years at the rent of one dollar per year. Adams J.A. at 41. The plaintiffs allege four links between HDC and the state: public funding, government regulation, public facilities, and public officials on HDC’s board. These links, the plaintiffs assert, demonstrate a symbiotic relationship between HDC and the state. All of these links have been addressed by previous cases. Public Funding and Regulation Like the school in Rendell-Baker, HDC is funded almost entirely by public sources, and is subject to regulation. Under the reasoning of Rendell-Baker, though, neither of these factors, without more, is sufficient to make a private entity’s decision to discharge an employee attributable to the state, 457 U.S. at 840-42, 102 S.Ct. at 2770-72. There is no basis for finding that state regulation “compelled or even influenced” defendant Yandemark’s decision to discharge the plaintiffs. Furthermore, “[t]hat programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State was responsible for decisions made by the entity in the course of its business.” Blum, 457 U.S. at 1011, 102 S.Ct. at 2789. Public Facilities HDC has leased office space from Caro for a term of thirty years at the rent of one dollar per year. Furthermore, HDC received money from a Community Development Block Grant to renovate the office building, which also houses the administrative program offices of Caro. The plaintiffs assert that the lease and funding of renovation demonstrate an intertwining of Caro’s and HDC’s operations. In Crowder, this Court discussed the effect of a city’s leasing of space to a private corporation on the element of color of law. In that case the plaintiff, a doctor, alleged that a hospital and its staff violated his civil rights by restricting his staff privileges at the hospital. In support of his claim that the hospital took this action under color of state law he pointed out that in addition to receiving a significant amount of money from government sources and being subject to extensive state regulation, the hospital leased space in a building the county bought, pursuant to a financial arrangement authorized by statute. After concluding that public funding and state regulation were not enough to establish that the hospital had acted under color of state law, we stated with respect to the lease that: [Although Christian County is the owner and lessor of the hospital’s physical plant and assisted in the financing of some of the hospital’s construction cost, the fact remains that the County is not involved in the day-to-day operation of the hospital. More importantly, [the plaintiff] has not demonstrated a nexus between the challenged action, the hospital’s restriction of his staff privileges, and the limited governmental involvement alleged to provide the basis for a finding of state action, i.e. the County’s leasing of the hospital facility to the hospital’s Board of Trustees. Id. at 453. The Court affirmed the dismissal of the plaintiff’s section 1983 action. Under this analysis, the mere fact that HDC leases, at a nominal rent, office space from Caro, is insufficient to establish that HDC acted under color of state law when it discharged him. Similarly, Caro’s funding of the building’s renovation is not in itself a basis for finding a link between the state and the plaintiffs’ discharge. Rather, the plaintiffs must show that the lease or the funding affected the challenged acts, their discharges. They have not shown any such relationship. We distinguish Burton. The Supreme Court’s finding of state action in Burton was based in part upon the fact that the city leased the restaurant the space for its business, and construction, repairs, and maintenance of the property were made from public funds. 365 U.S. at 713-14, 81 S.Ct. at 898. The Court found that by virtue of the lease the “profits earned by discrimination not only contribute to, but are indispensable elements in, the financial success of a governmental agency,” Id. at 724, 81 S.Ct. at 861. Neither of the plaintiffs in the case at bar has alleged that Caro has benefited from their discharges through the leasing of office space to HDC. Public Officials as Members of the Board Perhaps the strongest indication of a symbiotic relationship between HDC and Caro is that state law requires one-third of HDC’s board of directors to be public officials. Mich.Comp.Laws Ann. § 400.1111. The board adopted the personnel policy pursuant to which defendant Vandemark discharged the plaintiffs. Panknin J.A. at 190-99. In Crowder two public officials, the may- or and the county judge/executive, served on the hospital’s thirteen-member Board of Trustees by virtue of their offices. The Board of Trustees adopted a committee’s recommendation to limit the plaintiff’s staff privileges. In evaluating this factor the Sixth Circuit said that “[t]he fact that [two public officials] serve as ex officio members of the hospital’s Board of Trustees ... although an important factor in establishing state action, is insufficiently linked to the challenged actions of the defendants in this case, and therefore, does not warrant a finding of state action.” Id. at 451 (citation omitted). In support of its holding the court noted that the board adopted the recommendation to restrict the plaintiff's privileges only after four reviewing committees had determined that such an action should be taken. Thus, reasoned the court, the action was not the board’s own independent decision, but instead the acceptance of the medical judgments of staff physicians. Id. In Anderson v. National R.R. Passenger Corp. (Amtrak), 754 F.2d 202 (7th Cir.1984) the court addressed the issue of whether government membership on Amtrak’s board established government action for the purposes of the fifth amendment. Six members of the nine-member board represented the federal government, and those six controlled the appointment of a seventh member. Nonetheless, the court found that, absent any allegation that the government was involved with Amtrak’s personnel policies or decisions, the composition of the board did not warrant a finding of government action. Id. at 204. In the case before this Court, the HDC’s board’s only link to the challenged actions, the discharges, is the board’s adoption of the personnel policies pursuant to which defendant Vandemark discharged Adams. Unlike the board in Crowder, there is no evidence that the board approved of the discharge. Given the holding of Crowder that public representation on the board, even when taken with public funding, government regulation, and facilities leased from a public entity, did not establish the requisite relationship necessary to find col- or of state law, we find that the facts of this case likewise do not support such a finding. Consequently, we hold that the plaintiffs failed to state a claim under section 1983 and that the District Court properly dismissed the suits. Accordingly, we AFFIRM the judgment of the District Court. . 42 U.S.C. § 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.... . The Sixth Circuit initially affirmed, but reversed and remanded on reconsideration. Joint Appendix at 13-31. . The Supreme Court stressed in Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 102 S.Ct. 2744, 2749, 73 L.Ed.2d 482 (1982) that the "color of law” requirement of § 1983 matches the "state action" requirement of the fourteenth amendment. . The plaintiffs do not appear to argue that either of two other tests, the "public function” test, Flagg Bros. v. Brooks, 436 U.S. 149, 157, 98 S.Ct. 1729, 1734, 56 L.Ed.2d 185 (1978) or the "state compulsion" test, Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), applies to this case. . One plaintiff was a vocational counselor hired under a grant from the federal Law Enforcement Assistance Administration, whose funds were distributed in the state by the state Commission on Criminal Justice. As a condition of the grant, the Commission had to approve of the school’s initial hire for the position. 457 U.S. at 833, 102 S.Ct. at 2767. . The Court rejected the plaintiffs' claim that the school performed a public function and that therefore its actions were actions of the state, stating that our holdings have made clear that the relevant question is not simply whether a private group is serving a "public function.” We have held that the question is whether the function performed has been "traditionally the exclusive prerogative of the State." ... That a private entity performs a function which serves the public does not make its acts state action. 457 U.S. at 842, 102 S.Ct. at 2772 (citations omitted). . The more recent Supreme Court cases in this area appear to have limited the broad realm of state action Burton suggested. . The court went on to say that they recognized that the Sixth Circuit had found state action in previous cases with similar circumstances, but that the legal reasoning of those cases was no longer valid in light of the recent Supreme Court cases in the area. Crowder, 740 F.2d at 452. MERRITT, Circuit Judge, dissenting. I dissent because I believe that the majority has ignored a fundamental distinction necessary in state-action cases and therefore arrived at the wrong conclusion. I. The idea of “state action” embodied in the phrase “under color of any statute, ordinance, regulation, custom, or usage, of any State” in § 1983, and in the words “No State shall” of the Fourteenth Amendment, is the central legal concept behind an extensive legal “revolution” in American law of the past 25 years. Interpretation of this idea—its expansion and contraction in the hands of judges and legislators — controls the extent of stability and change in major segments of American constitutional law by controlling what institutions and what officials and individuals may be subject to substantive constitutional duties in their relations with the citizenry. The reinterpretation of “state action” in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), to include the abuse and misuse of state and local authority created new fields of constitutional tort, contract, restitution and procedural law. For an incisive survey and criticism of the new field of constitutional torts, see Christina Whitman’s two articles, Constitutional Torts, 79 Mich.L.Rev. 5 (1981); Government Responsibility for Constitutional Torts, 85 Mich.L.Rev. 225 (1986). For contract, see, e.g., Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987) (§ 1983 action in which validity and enforcement of contract waiving civil right to sue as part of settlement of civil case was upheld by 5 to 4 vote). For restitution, see, e.g., Hogue v. Clinton, 791 F.2d 1318 (8th Cir.) (Lay, C.J., dissenting in part) (discussing interplay between constitutional right deprived and restitutionary remedy) cert. denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 704 (1986), and Justice Harlan’s concurring opinion in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 400-11, 91 S.Ct. 1999, 2006-12, 29 L.Ed.2d 619 (1971) (explaining that the full complement of common law legal and equitable remedies are available to redress constitutional wrongs). For procedural innovation, see, e.g., Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (creating pretermination right-of-reply hearing for employees discharged by state actors); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (devising test to balance individual and state interests at stake in a given procedure). This new constitutional law, still evolving and in a state of early development, holds thousands of state and local institutions and their officials and employees to higher standards of conduct and confers new legal rights on the individuals and corporations who deal with them. This reinterpretation of “state action,” and the new constitutional rights arising from it, have together gradually provoked change in the legal environment perhaps no less profound than the consequences of the new power to regulate interstate commerce created in the 18th and 19th Centuries. The gradual expansion of the “state action” concept and its purpose — to control and correct abusive conduct by official actions — is not unlike the development of new forms of action in England in the 12th and 13th Centuries to control the power of the church, rights in land and violence in the realm. See H. Berman, Law and Revolution: The Formation of the Western Legal Tradition, 445-57 (1983). Expansion of the “state action” concept after Monroe also has been a major force behind the ten-fold increase in the case loads of the federal courts since 1960 and behind the vast increase in the size of the federal judiciary. See generally Merritt, Owen Fiss on Paradise Lost: The Judicial Bureaucracy in the Administrative State, 92 Yale L.J. 1469, 1472-73 (1983). Despite these dramatic consequences and despite the accretion of a vast body of case law on the subject, the idea of “state action” in § 1983 and the Fourteenth Amendment still is little more than an undifferentiated precept, not,a developed conception with an understandable doctrinal structure. The courts have been unable to articulate a unifying principle, an understandable doctrine, a functionally helpful presumption, or even a cogent set of factors to aid us in evolving a coherent approach. The problem is “as fascinating as it seems to be intractable.” Friendly, The Public-Private Penumbra — H Years Later, 130 U.Pa.L. Rev. 1289, 1295 (1982). Twenty years ago the Supreme Court exhaustedly confessed that the effort to formulate neutral principles in this area was an “impossible task,” Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 1632, 18 L.Ed.2d 830 (1967); one noted scholar summarized the Court’s performance as creating a “conceptual disaster area.” Black, The Supreme Court 1966 Term — Foreword: “State Action,” Equal Protection, and California’s Proposition Fourteen, 81 Harv.L.Rev. 65, 95 (1967); see also L. Tribe, American Constitutional Law 1690 (2d ed. 1988). Obviously, the courts developed the general idea of “state action” to carry out the framers’ purpose of placing reasonable limits on the power of government. The framers of the original Constitution, the Bill of Rights, and the Civil War Amendments were skeptical of governmental power. Because the framers were anti-authoritarian and concerned about abuse of governmental power, the idea of “state action” seems necessary to separate private power and authority, upon which the framers placed no limits in the Constitution itself, from the public authority which they severely circumscribed. At the time of the Constitutional Convention and the Civil War Amendments, it was fairly easy to tell the difference between private authority and public authority. Now with the proliferation of organizations and of new types of nonprofit, “quasi-public,” and corporate institutions which enlist the machinery of government and the power of group politics, see M. Olson, The Logic of Collective Action (1965), or are created or recruited by government to accomplish its own ends, see Stewart, Organizational Jurisprudence, 101 Harv.L. Rev. 371, 379-80, 387-88 (1987), the distinction between public and private is often less clear. Government at all levels through delegation has conferred its own authority on many of these organizations by granting them coercive powers, subsidies and tax exemptions. The “public-private” boundary is elusive, a moving target; its location seems to vary with the political philosophies of those in power and the means they choose to use that power. See Ackerman, Foreword: Law in an Activist State, 92 Yale L.J. 1083 (1983). How best to police these boundary organizations to guard against the abuse of power has so far received insufficient attention. Better legal theories are needed. II. Judge Kennedy, in her opinion for the Court, sets out accurately the labels and the vocabulary employed in the “tests” which the courts historically have fashioned to distinguish state from private action: “symbiotic relationship,” duties “fairly attributable to the state,” public connections “sufficiently linked to the challenged actions,” “such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the state.” She then shows that in one previous case or another each of the isolated “links” in this case, standing alone — government funding of the agency, pervasive regulatory control of its activities, free use of office space in city hall, public officials holding one-third of the seats on the governing board, and statutory creation of the agency — has been held insufficient by itself to establish the necessary “symbiotic relationship.” Nothing is said about the effect of all these individual “links” taken together on the “symbiosis.” The Court is unable to see the forest for the trees. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 361, 95 S.Ct. 449, 458, 42 L.Ed.2d 477 (1974) (Douglas, J., dissenting) (“not enough to examine seriatim each of the [state action] factors upon which a claimant relies.... It is the aggregate that is controlling.”) And there is something else missing: a full appreciation of the nature of the organization. The Human Development Corp. can be approximately described as a joint venture between local, state and national governments that have combined to create the agency, finance it, approve or expand its activities, and approve its personnel. The governments may also disapprove personnel or activities, cut off its funds or close it down. Indeed, the agency may not exist in a community if the local government is opposed. See Michigan Economic and Social Opportunity Act of 1981, Mich. Comp.Laws Ann. § 400.1108(c) (continued existence of local community action agency must be approved by the Director of the Michigan Bureau of Community Services and the “chief elected official of the unit of local government to be served”). If a Democratic mayor, for example, decided that the agency should fire all Republicans, it is difficult to see how the agency could long resist. Under the Court’s reasoning, however, Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), would not apply to prohibit such a First Amendment violation because there would be no “state action” and therefore no federal interest. The fact that our court can reach this result, so easily disregarding and never focusing on the potential for abuse of official power that this combination of factors creates, indicates the failure of the current vocabulary of “state action.” That vocabulary to this point is composed entirely of malleable concepts, contractable and expandable depending on how the judge feels. These “tests” are all pigeonholes and labels; they lack clarity. In application, they provide the illusion of precision. The Supreme Court recently decided West v. Atkins, — U.S. -, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), which appears to take a cautious first step toward a more “functional” and “context”-sensitive analysis of the state action requirement. See id. 108 S.Ct. at 2256-60. Justice Blackmun, who wrote West for eight members for the Court (Justice Scalia concurred separately), has elsewhere expressed his own dissatisfaction with the direction of earlier state action jurisprudence. See Blackmun, Section 1983 and Federal Protection of Individual Rights — Will the Statute Remain Alive or Fade Away ?, 60 N.Y.U.L.Rev. 1 (1985). Most significantly for our purposes, the opinion in West cautions that, in undertaking state-action analysis, we should be more concerned with the functional role played by a private party and the context of its relationship with the state, and less with the formal nature of its legal relationship to the State. The West Court thus held that a physician who provided medical care in state prisons as an independent contractor was a state actor. III. A simple division is helpful. In some state-action cases it is clear that the party whose action must be characterized is an unquestionably private party in some way interacting with the State, as in West. In others it is equally clear that the action to be characterized is one of a party, either individual or institutional, whose previous history or role is not unquestionably private, but who previously functioned as a part of the government. This division suggests a preliminary inquiry that, unfortunately, the majority never undertakes: is the entity “private” or “public” ex ante ? The majority, never making this distinction, embraces precedents drawn from the realm of “private” state-action case law, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Crowder v. Conlan, 740 F.2d 447 (6th Cir.1984). But these cases do not provide much help in the public-entity realm. The distinction is crucial, and, though not much developed, is nevertheless recognized by the Supreme Court. See West v. Atkins, 108 S.Ct. at 2257 n. 10; Lugar v. Edmondson Oil Co., 457 U.S. 922, 937-39, 102 S.Ct. 2744, 2753-54, 73 L.Ed.2d 482 (1982). A. The Human Development Corp. is hardly ex ante private. For most of its history, it was a Community Action Agency created by federal law; since 1982, Michigan law has converted its status to the equivalent of a state agency. The Tenth Circuit has described in detail the origin of community action agencies such as the HDC: The concept of the community action agency originated in Title II of the Economic Opportunity Act of 1962 (the “EOA”), 42 U.S.C. §§ 2781-2837 (1976) (repealed 1981). Through the EOA's provisions, Congress sought to encourage the creation of community operated agencies that would coordinate federal, state, and private resources to combat poverty at a local level. Congress defined the basic structure and functions of these agencies and established requisites for federal funding. See EOA §§ 210-221, 42 U.S.C. §§ 2790-2808. However, Congress left broad discretion to the local communities in the operation of the agencies. See H.R.Rep. No. 1458, 88th Cong., 2d Sess., reprinted in 1964 U.S. Code Cong. & Ad.News 2900, 2909. Congress established a number of requirements of particular relevance to this appeal. It provided that “[a] community action agency shall be a State or political subdivision of a State ... or a combination of such political subdivisions, or a public or private nonprofit agency or organization which has been designated by a State....” EOA § 210(a), 42 U.S.C. § 2790(a). It also specified that “[n]o political subdivision of a State shall be included in the community action program of a community action agency designated under section 2790(a) of this title if the elected or duly appointed governing officials of such political subdivision do not wish to be so included.” EOA § 210(e), 42 U.S.C. § 2790(e). Congress set forth specific requirements for the governing board of the community action agencies, providing, Each Board to which this subsection applies shall consist of not more than fifty-one members and shall be so constituted that (1) one-third of the members of the board are elected public officials, or their representatives, except that if the number of elected officials reasonably available and willing to serve is less than one-third of the membership of the board, membership on the board of appointive public officials may be counted in meeting such one-third requirement.... EOA § 211(b), 42 U.S.C. § 2791(b). Regarding the authority of the board, Congress provided, The powers of every community action agency governing board shall include the power to appoint persons to senior staff positions, to determine major personnel, fiscal, and program policies, to approve overall program plans and priorities, and to assure compliance with conditions of and approve proposals for financial assistance under this sub-chapter. EOA § 211(e), 42 U.S.C. § 2791(e). Gilmore v. Salt Lake Community Action Program, 710 F.2d 632, 633-34 (10th Cir.1983) (footnotes omitted). In the early 1980’s, the Reagan administration phased out the federal agency that administered the EOA and substituted a system of block grants. In 1982, Michigan enacted the Economic and Social Opportunity Act establishing the Bureau of Community Services within the State Department of Labor. Under the Act, the Bureau designates “community action agencies.” Mich.Comp. Laws Ann. §§ 400.1105, 400.1108. A community action agency may be one of two types: (1) a public agency or unit of local government so designated by the corresponding local officials, § 400.1108(l)(a), (b), (d), or (2) a “nonprofit private agency” that has been “approved by the chief elected official of the unit[s] of local government to be served,” § 400.1108(l)(e). The Act also grandfathers community action agencies previously part of the federal program. § 400.1108(3). The Act further provides that a Michigan community action agency: • fix the membership of its board of directors according to state standards. The board must have between 15 and 51 members. One third must be “low income, elderly, or handicapped consumers” living in the service area who are selected “through a democratic process pursuant to guidelines established by the department.” § 400.1111(1). One third must be “representatives of the units of local government and public agencies within the service area.” Id. One third must “represent the private sector, including representatives of business and industry, agriculture, labor, and religious and civic organizations” in the service area. Id. • may annually apply for and receive state appropriations pursuant to a “program budget request.” § 400.1110. • is subject to the Michigan public meetings act. § 400.1114(1). • is subject to the Michigan freedom of information act. § 400.1114(2). The majority correctly describes a community action agency’s statutory purpose as to “serve as a primary advocate for the reduction of the causes, conditions, and effects of poverty” and the provision of “social and economic opportunities that foster self-sufficiency for low income persons.” § 400.1109. The Act further empowers the agencies to “inform” other governmental agencies of the nature and extent of poverty problems, to provide training for the other agencies, to increase “interagency coordination and cooperation” and to “mo-biliz[e] federal, state, and local public and private agencies and organizations.” § 400.1109. The entity thus was created by government, is sustained by government, is required to further government purposes, and cannot exist without government. It is strange indeed to characterize such an animal as “private,” a real confusion of categories, like The Man Who Mistook His Wife for A Hat (Dr. Oliver Sacks, Summit Books, 1986), or the Greek goddess who mistook the Unicorn for a Centaur. B. Identifying the agency as ex ante public does not end the analysis, of course. Even a flat-out state employee can be held to act as a private, not a state, actor. See Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (public defender not state actor). If it can be shown that a “public” party’s contested action is not motivated by State purposes but rather by wholly private purposes coincidentally possessed by that party, then there would be no state action. Otherwise, however, public action should be treated as state action. In the case of The Human Development Corp., the dispositive inquiry should be: did director Vandemark act pursuant to state interests when she fired Adams and Pank-nin? The majority treats this case as if the two plaintiffs’ discharges here were purely internal personnel disputes unrelated to the governmental purposes of the HDC. If true, that would be a different case, but that is not our case. The. majority does not describe the nature of the underlying disputes that precipitated the instant lawsuits beyond characterizing them as alleged firings in retaliation for exercise of First Amendment rights. Both Adams and Panknin alleged that Vandemark and the HDC sought to gain the use of each man’s state builder’s license so that the agency could use the license to take on construction programs for which it would otherwise be required to let contracts. When each man objected to that use of his license, he was fired. In other words, the agency was to “profit” from the use of Adams’ and Panknin’s licenses. When the appellants objected, they were fired. That is the challenged action of which they complain. The majority asserts instead that “the HDC’s board’s only link to the challenged actions, the discharges, is the board’s adoption of the personnel policies pursuant to which Vandemark discharged [the appellants].” Ante, at 317. It is undeniable, however, that the board sets other policies of the HDC and that Ms. Vandemark sought the use of the appellants’ license to further one of those other policies. She is the HDC’s chief executive officer; her official actions presumably effectuate the organization’s overall goals. Absent some showing that her actions did not further those purposes, I do not see how the actions of an organization’s chief officer can be deemed not to represent the actions of the organization. Neither do I see how an organization whose governing board is statutorily composed of a significant percentage of public officials lacks governmental purpose, as Judge McKay wrote for the Tenth Circuit: When public officials serve on a governing board of an institution, there is always some risk that the officials may advance governmental objectives through the institution. When the offi cials serve on the board to offer service and assistance qua governmental officials, when their presence on the board is a requirement for federal funding, and when the decisions of the board often involve issues of public interest, there exists a substantial risk that governmental objectives can influence institutional action. Accordingly, the institution becomes a state actor even if, as here, the public officials maintain only a minority representation on the governing board. The potential for government influence cannot be directly calibrated to the number of officials on the board; the officials, by virtue of the requirement of their presence and the power of their positions, can exercise influence far in excess of their proportional representation. Gilmore v. Salt Lake Community Action Program, 710 F.2d at 637 n. 12. In most cases, it will be relatively easy to identify whether an entity is ex ante private or ex ante public. To resolve those difficult cases created on the boundary, the following factors deserve consideration: 1. whether the behavior of the organization is likely to have significant effect on property or liberty interests of citizens; 2. whether its sources of funding and place of work are public or private; 3. the degree of public regulation; 4. the method of creation and permanence of organization; 5. the assumptions of the entity’s employees and constituents about whether it is engaged in government activity; 6. the degree of control exercised over the organization’s work by government officials; 7. whether the organization competes in the private marketplace, or whether the purpose of the organization is to alter the arrangement of the private marketplace as a result of government policy; 8. whether the organization’s activity historically has been conducted by private or government actors; and 9. whether the organization and its employees should receive the protection of governmental and official individual immunities from liability. The above is loosely adapted from the list developed by Professor Seavey and his successors for the Restatement of Agency from the ease law to describe factors useful in determining whether “one acting for another is a servant or an independent contractor.” See Restatement (Second) of Agency § 220 (1958). Such a list is not exhaustive. Because principles of agency developed in private law do not necessarily transplant whole into areas suffused by public policies, see City of St. Louis v. Praprotnik, — U.S. -, 108 S.Ct. 915, 936, 99 L.Ed.2d 107 (1988) (Stevens, J., dissenting); Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209, 209-12 (1963), basic agency principles may need modification to take account of such phenomena as institutional power and collective or aggregate decisionmaking. See Ackerman, Foreword: Law in an Activist State, 92 Yale L.J. 1083 (1983); Mashaw, “Rights” in the Federal Administrative State, 92 Yale L.J. 1129 (1983); see generally D. Mueller, Public Choice (1979). Applying these factors, the agency in question is engaged in a welfare program with the same risk of injury to property and liberty interests as other similar programs like Aid to Families with Dependent Children or the relief of farmers. Its funding is wholly public and its program highly regulated. Its purpose is to substitute a government program for the private marketplace. These factors in combination give governmental officials a large degree of control over the agency’s activities. I would reverse the District Court’s grant of the motions for summary judgment and directed verdict.

CUMMINGS, Circuit Judge. This case involves the transportation of marijuana from Texas to Illinois commencing in October 1994. Defendant Felix Delacruz was not involved until January 16,1995. On November 2, 1994, Felix Solis, Ignasio Ramirez and Raul Tijerina delivered 60 pounds of marijuana to undercover police officers in Kankakee, Illinois, for $48,000. On November 9 they delivered another 72 pounds of marijuana to the undercover police for $100,000. The sellers were unpaid on each occasion. The undercover police subsequently agreed to pay $100,000 on November 18, 1994, for the two deliveries. When Ramirez and Tijerina arrived for payment, they were arrested, while Solis was a fugitive. On December 3, 1994, Robert Kilcourse traveled to Kankakee and demanded $106,-000 for the 132 pounds of marijuana, but the undercover agents refused to pay and Kilcourse returned to Texas. On January 16, 1995, defendant Felix Delacruz contacted one of the undercover agents and demanded the $106,000 allegedly owed Solis. In a series of telephone calls, defendant agreed to “front” another 400 pounds of marijuana if the undercover agents would pay the $106,000. Defendant said he would send Robert Kilcourse to collect the $106,000. On February 8,1995, Kilcourse was arrested and agreed to cooperate with- the police. He said he had been recruited by defendant to travel through the United States to collect drug money. In the same month he picked up $65,000 in drug money and brought it to defendant, who arranged for him tó deliver 700 to 1,000 pounds of marijuana in Illinois on March 16, 1995. Defendant obtained a credit card in Kilcourse’s name and used it to finance Kilcourse’s trips. On June 4, 1996, defendant pled guilty to an indictment charging him and Kilcourse with conspiracy to distribute marijuana. The government agreed to recommend a sentence at the lower end of the guideline range. The district court advised defendant he faced a maximum penalty of 20 years’ imprisonment. Judge Baker also explained the nature of the charge and the defendant’s constitutional rights and asked defendant whether his plea was voluntary. Defendant stated that he understood everything. His counsel said that there was no written plea agreement but that the government was recommending a sentence at the lower end of the guideline range. Upon inquiry from the court, the lawyers stated they believed the guideline sentence would be 24 to 31 months, but this was wrong because it did not take into account the additional 700 pounds of marijuana delivered in Illinois by Kilcourse or an additional three guideline levels for defendant’s managerial role. Although defendant actually faced a guideline range of 70-87 months, the court explained that the 24-31-month guideline range was the lawyers’ estimate and that the court would not be bound by any sentence recommendation. The court did not tell defendant that he could not withdraw his plea if the court should not accept the sentencing recommendation. Thereupon defendant was released on bail and told to appear for sentencing on September 19, .1996. The probation office then completed a presentence report including the 700 pounds of marijuana delivered by Kilcourse as relevant conduct and adding a three-level sentence enhancement in view of defendant’s managerial role in a conspiracy involving five or more persons. Therefore Delacruz faced a guideline sentencing level of 29, yielding a range of 70 to 87 months. When he received the presentence report, defendant fled to Mexico. When defendant had been in custody he met Guadalupe Presas, who was in jail for a drug crime. When Presas was released on probation he kept in touch with defendant. From Mexico defendant called Presas and discussed sending 500 pounds of marijuana to Arkansas. In the meantime, Presas had become an informant. In several subsequent recorded telephone calls from Presas to defendant in Mexico, Delacruz agreed to ship a large load of marijuana to the Danville, Illinois area. He told Presas they were sending a load of marijuana to Chicago but that he could divert it to Danville and could thereafter make a shipment of marijuana to Danville every 15 days. He agreed to ship 1,000 pounds of marijuana to Presas in Danville for $350,000. On October 20, 1996, Presas called defendant, who told Presas that he should meet certain individuals at a Danville hotel and bring the $350,000 and obtain the marijuana. However, the negotiations terminated because Presas did not have the necessary money. When defendant was lured back from Mexico he was again jailed and told the police informant that he could provide him with 100 pounds of marijuana for $800 per pound while he was awaiting sentence and release a few months thereafter. Defendant told the informant that he would deliver the marijuana to Chicago or Peoria. On March 9, 1995, defendant was indicted for conspiring to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. In February 1997 Delacruz was indicted for violating 18 U.S.C. §§ 3146(a)(1) and (b)(1)(A)(ii) by not appearing for sentencing. He pled guilty to both charges. At the sentencing hearing, defendant objected to adding the 700 pounds of marijuana delivered by Kilcourse in Illinois pursuant to defendant’s instructions, but the court overruled the objection. He also objected to his sentence being enhanced due to his role as a manager or leader in a conspiracy of five or more-persons. That objection was rejected because the court considered the evidence to be clear and persuasive that defendant was a manager or supervisor in a conspiracy involving five or more participants. The court noted that defendant exerted significant control over Kilcourse. Defendant’s request for an acceptance of responsibility reduction was denied because he had become a fugitive. The district judge ruled that defendant had breached the original plea agreement providing for a 20-month sentence and therefore denied defendant’s motion to require the government to abide by the original plea agreement. The defendant was sentenced to 120 months’ imprisonment for conspiracy and another 15 months’ imprisonment for his failure to appear. Failure to comply with Rule 11 of Federal Rules of Criminal Procedure In accepting defendant’s guilty plea, the 'district court neglected to inform him that his plea could not be withdrawn if the district court did not accept the government’s sentence recommendation. Rule 11(e)(2). However, the government never agreed to recommend a specific term of imprisonment but merely to recommend the lowest applicable guideline sentence. As the court noted, defendant’s and government counsel incorrectly estimated that the defendant would face a sentence of 24-31 months, but defendant was informed by the court that these were mere estimates rather than an agreement by the government to recommend a sentence of 24 months. In addition, the district judge did discuss whether the guilty plea was coerced, whether defendant understood the nature of the charges, and whether the defendant understood the consequences of the plea. After the district court discussed the conspiracy charge and the possible 20-year imprisonment term, defendant stated he understood those matters, and the court explained that it was not bound by any sentencing recommendation from the government. Consequently reversal is not required. United States v. Mitchell, 58 F.3d 1221, 1225 (7th Cir.1995). While it is true that the district court did not inform Delacruz that if it did not accept the sentence recommendation of the government,'he would not be allowed to withdraw his guilty plea, nothing shows that if so informed, defendant would not have pled guilty. As in United States v. Vaughn, 7 F.3d 1533, 1536 (10th Cir.1993), certiorari denied, 511 U.S. 1036, 114 S.Ct. 1553, 128 L.Ed.2d 201, defendant does not claim that he would not have entered a guilty plea if he had received the proper warning. Thus any error on the court’s part was harmless. In addition, the court explained that it was not bound by any governmental sentencing recommendation. Consequently defendant understood that he could be sentenced differently from the plea agreement. When he realized he might not receive a 24-month sentence, he fled to Mexico. Since defendant breached the plea agreement, the government was not obligated to recommend the 24-month sentence The defendant asserts that under the terms of the plea agreement, the government was obligated to recommend a 24-month sentence. However, the government did not breach the plea agreement; rather Delacruz did so by not appearing for sentencing and continuing his criminal activity. While defendant was a fugitive in Mexico, he still conspired to distribute marijuana in Illinois. As in United States v. Ashurst, 96 F.3d 1055 (7th Cir.1996), it was unreasonable for this defendant to believe that the government would be obligated to recommend an acceptance of responsibility reduction when he again committed the same crime. As in United States v. Rivera, 954 F.2d 122, 123 (2d Cir.1992), certiorari denied, 503 U.S. 996, 112 S.Ct. 1701, 118 L.Ed.2d 410, the government was not still obligated to recommend the lower range of the sentencing guidelines since defendant failed to appear for sentencing and continued to commit drug offenses. Delacruz could not reasonably expect the government to recommend the lower range of the sentencing guidelines when he fled to Mexico and was committing the same crime there. Since defendant failed to appear for sentencing and continued his criminal conduct, the government was no longer obligated to recommend a sentence of 24 months at his sentencing hearing. Three-level enhancement was properly based on defendant’s managerial role in a conspiracy of five or more persons Defendant claims he had no contract with his co-conspirators and did not exert any managerial role, so that the district court improperly enhanced his sentence. As the presentence report showed, defendant had four co-conspirators in delivering marijuana to Kankakee, Illinois: Eduardo Leal, Felix Solis, Ignasio Ramirez, and Raul Tijerina. Solis became manager of the group, but when he became a fugitive Robert Kileourse traveled to Kankakee to obtain payment for the marijuana that had been delivered to the undercover agents. Delacruz told the police agents that he had taken over for Solis and that he would send Kileourse to pick up the money for the marijuana that had been delivered to the undercover agents. Therefore the conspiracy involved five or more persons, with at least Kileourse being managed by defendant. Since defendant did not challenge these allegations contained in the presentence report, the district court did not commit error in applying a three-level enhancement. Judgment and sentence affirmed.

DRUMMOND, Circuit Judge. In this case the facts are, that Singer & Bickerdike as principals, and the other defendants as sureties, gave a bond on the 18th of January, 1869, to the United States in the penal sum of ninety-two thousand dollars, with the condition that as Singer & Bickerdike on and after that day intended to be engaged in the business of distillers, they should in all respects faithfully comply with all the provisions of law in relation to the duties and business of distillers, and pay all penalties incurred or fines imposed on them for a violation of any of the said provisions. The declaration alleges several breaches on this bond. The first is that Singer & Bick-erdike made return of the amount of spirits that they had manufactured during the month of November, 1868, and that the quantity was less than eighty per cent of the producing capacity of their distillery as estimated under the provisions of the internal revenue law, and that on the 10th of February, 1869, the assessor made an assessment against them for the deficiency, viz. $26,089.60, which they have not paid. To this breach the defendants have pleaded what is termed the third amended plea, and which declares that Singer & Bickerdike made return to the assessor of all the high-wines and spirits produced at their distillery during the month of November, 1868, and that an assessment was made against them for the full amount of tax on the same, and that the amount so assessed has been paid, and that no other highwines or spirits were produced at their distillery during the month of November, 1868, than what were so returned. To this plea there is a demurrer by the plaintiffs. The declaration also contains an additional breach or count, to the effect that one Davis, an internal revenue storekeeper, was appointed by the secretary of the treasury and assigned to the distillery of Singer & Bickerdike at a salary of five dollars a day from March 4 to March 25, 1869, inclusive, thereby becoming entitled to $110 as such storekeeper, and which amount has been paid by the plaintiffs, and thereupon it became the duty of Singer & Bickerdike to reimburse to the plaintiffs this amount, but to do this they have failed. To this breach there is a demurrer by the defendants. The first question turns upon the validity of the plea, and consequently upon the true construction of the 20th section of the act of congress of July 20, 1868. That section declares that the assessor, in order to determine whether all the spirits produced in a distillery have been returned, shall ascertain the whole quantity of materials used for the production—“and forty-five gallons of mash or beer brewed or fermented from grain, shall represent not less that one bushel of grain, and seven gallons of mash or beer brewed or fermented from molasses, shall represent not less than one gallon of molasses. If the return is less than the quantity thus ascertained, the distiller or other person shall be assessed for the deficiency, * * * and the collector shall proceed to collect the same as in cases of other assessments for deficiencies.” Now, it will be observed that the language'of the section as referred to above seems to proceed on the basis that it has given a mode of ascertaining the quantity of spirits produced, by declaring that forty-five gallons of mash shall represent one bushel of grain, "under the implication that when the number of bushels of grain is known, the quantity of spirits produced is exactly ascertained, an implication contrary to the fact, as is well understood by all practical distillers. If the section had arbitrarily declared how much spirits one bushel of grain should represent, then this part of the difficulty would be removed. The section concludes with this provision: “But in no case shall the quantity of spirits returned by the distiller, together with the quantity so assessed, be for a less quantity of spirits than eighty per centum of the producing capacity of the distillery as estimated under the provisions of this act.” This 20th section appears to have been framed for the purpose of prescribing a method of ascertaining the product of the distillery, or to impose a tax on its capacity as such, or to unite both, and thus if the distiller should in fact produce eighty per cent, then it was to be a tax on the product; and if less, on the capacity. In order to determine which of these is the true meaning of this section, the facts of this case should not be forgotten. It has been conceded in the argument by the district attorney that, so far as is known and believed by the officers of the government, the distillers in this case returned all the spirits they manufactured in the month of November, 1868, and that the assessment in controversy was made upon a quantity of spirits that never existed. In examining the act of July 20, 1868, the inquiry naturally arises—-what was its object as to distilled spirits. It is entitled “An act imposing taxes on distilled spirits and tobacco, and for other purposes.” The first section declares what tax shall be levied and collected on distilled spirits, and the following sections contain various provisions for ascertaining and securing the payment of the tax. The tenth section designates in what manner the true producing capacity of each distillery shall be determined, and how errors in such estimate shall be corrected. The thirteenth section imposes a daily tax upon the distiller in proportion to the capacity of his distillery for mashing and fermenting grain, etc. The 14th, 15th, 16th. 17th. 18th and 19th sections contain various and minute directions as to the construction of buildings and machinery, and the mode of manufacture, in addition to those previously prescribed, and the main object of which appears to be to guard against dishonest practices by the distiller. Besides all this, the distiller or principal manager is to make his return three times a month, under oath, stating the quantity and kind of materials used for the production of spirits each day, and_the number of wine gallons and of proof gallons of spirits produced, and he is bound to include all, because he must asseverate there was no more used or produced. After this follows the 20th section, the substance of which has been already stated, and numerous others, all of the same general purport up to the 59th, which imposes an annual special tax upon distillers in proportion, not to the capacity, but to the actual product of the distillery. If it were the purpose of the law to assess also a tax upon the capacity alone of a distillery as representing its actual product, and in this way tax the supposed product itself, and if it be true that such a tax is. something else than' an assessment upon ■ the distillery and machinery, merely because they possess a certain property or quality, then it is singular that such multifarious and complicated provisions were considered necessary to ascertain and collect the amount. If the producing capacity of a distillery is known—as so many gallons a day—then it is a simple thing to say it shall pay fifty cents as a tax on every gallon it is capable of producing; and the complex and expensive arrangements and safeguards to prevent fraud, thrown around the manufacture of distilled spirits,, could be dispensed with at once. The object of so much legislation must have been to ascertain the product, and thus compel the payment of a tax on the whole of the article manufactured. Such a tax may be said to be just, as having' something on which to operate, whereas a tax on the producing capacity of a distillery, if it be not a tax on the distillery itself, is often on a mere imaginary thing. It is like the attempt to tax an income where there is none. If we examine the language of the 20th section in connection with that part of the 19th section already referred to, this view of the law will be strengthened. The distiller must return the whole of the spirits manufactured, under oath, but in no case shall the quantity returned be less than eighty per cent of the producing capacity of the distillery, so that literally, if the distillery has produced less than eighty per cent, which is alleged to be the fact in this case, then the distiller is required to make a false return and swear to it This certainly cannot be the meaning of this section, because a previous part of the section, after assuming-contrary to the fact—that a test of quantity had been given, directs an assessment to be made if the quantity returned shall be less than that thus ascertained. The only construction that can be given to this section, consistent with reason and the general scope and purpose of the law, in my opinion, is. if the return is not equal to eighty per cent, of the producing capacity of the distillery, the assessor shall assume that it ought to have been, and the distiller shall then be assessed on that basis, as a method of discovering the actual product. It could not have been intended the distiller should return what he had not produced, nor that he should pay a tax on nothing. My conclusion is that the object of this section of the law is accomplished when the distiller has paid the proper tax on all the spirits he has manufactured. The letter of the section seems to be framed on a certain theory, but it is not possible, even for an act of congress, to make a bushel of grain produce more spirits than nature has supplied and science and skill can extract. One bushel of grain is not always precisely like another, nor is distilling always carried on under precisely the same circumstances, nor with precisely similar machinery and appliances of manufacture. And if a distillery has run part of a month and it is accidentally destroyed by fire or otherwise, is the letter of the statute still to be followed and an assessment of eighty per cent made and enforced for the whole month, when the product may have become impossible? And if not, why not? Such is a ease in actual controversy in this court Admitting then it may have the effect of compelling the distiller to establish, when he has not returned eighty per cent, of the producing capacity of his distillery, that it was because the distillery did not produce it, I must hold, when that is done, it is an answer to the claim set up under this section for an alleged deficiency—the fact then being* the deficiency does not exist. My attention has ' been called to the Case of Butcher [Case No. 15,014], in this court as having some bearing on this case; but the point decided there was different from that which the government seeks to establish here against the distiller. That was where a bond had been given under the act of July 13, 1866 [14 Stat. 98], on the removal of certain highwines from one bonded warehouse to another, and where the quantity of wines was ascertained by government inspection, when delivered at the one warehouse to the owner, and received at the other from him. The highwines were delivered to the owner on condition that he would agree to pay the tax on the difference between the number of gallons as delivered and as received, less certain allowances. In that case the government held the highwines for the tax. It parted with them on a particular guaranty voluntarily entered into by the owner. The court held that he was bound by the terms of his contract, though it operated with some hardship in that instance. If it were clear that the intent of this 20th section of the act of 186S was that the distiller should pay a tax on what his distillery did not manufacture, then, however unjust or oppressive such a provision might be, it could not be disregarded by the courts unless, indeed, on the ground that congress could not impose such a tax, which point need not now be considered. In conclusion, on this part of I the case, it must be said once more that if the position of the government is“correct, that the law intended to levy and collect a tax of fifty cents on every gallon of distilled spirits that a distillery was capable of producing, without regard tc the fact that it was ever actually manufactured, it is to be regretted the meaning was not more clearly expressed. It was only necessary to determine the producing capacity of the distillery, and the beginning and end of its operations, and the thing was done. Instead of which we have a series of restrictions and impositions, and a system of inquisition and espionage upon distilling—admitted by the act to be a lawful occupation—which if extended to all other kinds of business, would make the collection of taxes odious and oppressive and indeed well nigh intolerable. Nothing has been said, because the question was not made in the argument, of the application of this bond to an alleged omission of duty on the part of the principals at a time prior to the execution of the bond, a point perhaps by no means free from difficulty as affecting the sureties, whatever may be its bearing on the principals. Neither has any stress been placed on what is said to be true, that the commissioner or internal revenue, on being satisfied in some other cases that all the spirits manufactured were returned and the tax paid thereon, directed that the. assessments should not be enforced, because the question really Is whether it is a matter of discretion with the commissioner or of right upon the part of the distiller The demurrer to the third amended plea will therefore be overruled. The second question arises on the demurrer of the defendants to the second breach in the declaration. The law in force at the time this bond was executed (section 52, Act July 20, 1868) required that the United States should pay the internal revenue storekeeper, and in conformity therewith, Davis, the storekeeper in this case, was paid by the government the sum of $110, being at the rate of five dollars a day while employed and assigned to the warehouse of Singer & Bicker-dike, and all of which was after the execution of the bond in this case. On the 29th of March, 1869, congress passed a joint resolution directing that certain items omitted in the enrollment of the appropriation act of March 3d, 1869 [15 Stat. 301], were to be added as amendments thereto, among which was this proviso: “That after the passage of this act the proprietors of all internal revenue bonded warehouses, shall reimburse to the United States the expenses and salary of all storekeepers or other officers in charge of such warehouses, and the same shall be paid into the treasury and be accounted for like other public moneys.” It will be seen, therefore, that Singer & Bickerdike by this were required to repay to the United States what the latter had paid to Davis, and the question is—to say nothing about its effect on the principals—whether the sureties are liable by such an ex post facto resolution of congress operating upon the condition of this bond, executed the 18th of January previous, in such a way as to give it validity against them. I thinli they are not. It is a matter of grave doubt whether this bond stands on the same footing as an official bond; but conceding that to be so, what is the true rule on the subject? [Judgment having been given for defendants, a writ of error was sued out from the supreme court. The judgment of this court was reversed, and the cause remanded for further proceedings, with leave to the defendants to plead anew to the first count of the declaration. 15 Wall. (82 U. S.) 111.] One of the best considered cases to which the attention of the court has been directed, is that of Governor of Illinois v. Ridgway, 12 Ill. 14, where the supreme court of Illinois discusses and decides upon the -effect of subsequent legislation on the liability of sureties to official bonds, and where this rule is stated. The sureties of an officer on his official bond are liable for the faithful performance of all duties imposed on him, whether by laws previous or subsequent to the execution of the bond, if they properly belong to and are within the scope of the particular office, and not for those unconnected with it and which cannot be supposed to have been contemplated by the parties at the time they executed the bond. Some such principle as this must be adopted or the contract of a surety, instead of being construed strictly, as confessedly it should be, is extended so as to include obligations that he never assumed. Can it be fairly said to have been within the contemplation of the sureties in this case, that their principals would be required to refund money which the government by existing law, if a storekeeper was employed and assigned, was obliged to pay, and that thus they were to be' held accountable for such an act done and default made after they signed the bond? If this be so, where is the limit to the responsibility which may in this manner be cast upon a surety to an official bond? The contract of .a surety is secondary. He is bound for the acts of his principal and not his own, and if it be true, that for what is fairly within the contemplation of the parties, though ex post facto, he is bound, yet if we go beyond that, it would seem to violate the fundamental principles of the contract of the surety. If the rule insisted on by the government in this case is maintainable, it is difficult to see why the sureties to this bond could not in the same manner and by equivalent legislation be made to reimburse the United States for the whole expense of collecting every dollar of tax paid on distilled spirits by their principals. The decisions of the courts of the United States, which are collected and cited by Mr. Brightly in his “Federal Digest,” 822, upon the contracts of sureties, are in conformity with the opinion here given. The demurrer to the second breach will therefore be sustained.

JAMESON, District Judge: The United States of America, appellee here, brought this civil action pursuant to the Act of March 8, 1946, commonly known as the Anti-Kickback Act, 41 U.S. C. § 51, *to recover from Edward Jensen, appellant here, and eight other defendants who are not parties to this appeal, fees and commissions illegally paid by the-defendants. Appellant did not file in the-district court a statement of the points-on which he intended to rely on appeal,, as required by Rule 75(d) of the Federal Rules of Civil Procedure; nor did he file-a statement of points with the clerk of' this court in compliance with Rule 17(6) of the rules of this court. As the record’ on appeal he designated only the pleadings, findings of fact and conclusions of law, and judgment. Appellee, however, designated .as additional items a trial' stipulation and all exhibits received on. behalf of the plaintiff-appellee. In his brief appellant specifies as error-certain findings of fact and conclusions of' law of the district court. Even though we waive compliance with the rules requiring a statement of points, we are-limited, in determining the sufficiency of' the evidence to support the district-court’s findings and conclusions, to those-facts which were established, without proof, by the stipulation of the parties. During the years 1951 and 1952 PacificAirmotive Corporation was engaged ini the business of performing purchase orders and subcontracts for the furnishing-of supplies, materials, equipment and services under various prime contracts- between the United States and other companies. Pacific Airmotive Corporation, as a first-tier subcontractor, awarded purchase orders and outside production orders to Jensen Manufacturing Company, a second-tier subcontractor, for the furnishing of these supplies, materials, equipment and services. The prime contracts were generally on a cost-plus, a fixed fee, or other cost reimbursable basis. Jensen Manufacturing Company submitted invoices to Pacific Air-motive Corporation, and this corporation paid the invoices by issuing checks to Jensen Manufacturing Company. Appellant was the owner and operator of Jensen Manufacturing Company. During 1951 and 1952 he made payment to Airframe Suppliers of Burbank and Airframe Suppliers, Inc. in the total sum of $34,692.44. One-half of this amount was admittedly paid as “an inducement for and in acknowledgment of the orders awarded to Jensen Manufacturing Company” by Pacific Airmotive Corporation. Jensen contends that the other half was paid for services performed by Airframe Suppliers of Burbank and Airframe Suppliers, Inc. It appears, however, that all of the payments were computed by taking a certain percentage of the monetary amount of invoices from Jensen Manufacturing Company to Pacific Airmotive Corporation. The trial court found that the “total sum of $34,692.44 paid by defendant Edward A. Jensen and Jensen Manufacturing Company * * * constituted commissions paid as an inducement for and in acknowledgment of the purchase orders and subcontracts awarded to Jensen Manufacturing Company * * (Finding X) Airframe Suppliers of Burbank was a partnership composed of Millard A. Wachter, Darrold R. Wetmore, Alan F. Broz, and Robert W. Hopkins. It is stipulated that all monies received by the partnership were, after deducting expenses, divided more or less equally among the four. Airframe Suppliers, Inc. was an incorporation of the partnership, and payments to the corporation were divided in the same manner as payments to the partnership. Two of the partners in Airframe Suppliers, Wachter and Wetmore, were employed full time by Pacific Airmotive Corporation and were, respectively, the second and third ranking executive officials in charge of its manufacturing division. The other two partners, Broz and Hopkins, were not shown to have any relationship to Pacific Airmotive. Wachter and Wetmore were joined as defendants in this action, although they are not parties to this appeal. Broz and Hopkins were not made parties to the action. Jensen knew that Wachter and Wet-more were employees of Pacific Airmotive, as well as members of the Airframe Suppliers firms, and he knew that monies-paid to Airframe Suppliers of Burbank and Airframe Suppliers, Inc. would be received by Wachter and Wetmore. Apparently there was no showing that Jensen knew how much money Wachter and Wetmore received, or how the money he-paid to Airframe Suppliers would be divided among Wachter, Wetmore, Broz, and Hopkins. The case was tried before the court, without a jury, and judgment was entered against Jensen and Airframe Suppliers, Inc., jointly and severally, for the full amount of $34,692.44, plus interest and costs. Appellant first contends that the court erred in finding that the entire sum was paid as an inducement for and in acknowledgment of purchase orders and contracts from Pacific Airmotive. It is well settled that the district court’s findings of fact cannot be set aside on appeal, unless “clearly erroneous”. Rule 52(a) Federal Rules of Civil Procedure; United States v. Grissler, 9 Cir.1962, 303 F.2d 175, 176. The transcript of the testimony, including appellant’s own testimony, is not before us, and the record on appeal does not include all of the evidence on which the district court might have based its findings. “In such a situation, this Court may not consider appellant’s contention.” Watson v. Button, 9 Cir, 1956, 235 F.2d 235, 237. Appellant next contends that the court erred in finding as a fact that all sums paid by appellant to Airframe Suppliers were paid to employees of Pacific Airmotive Corporation. (Finding XVI) The absence of a transcript of the evidence is not fatal to a consideration of this specification of error. It is stipulated that all monies received by both Airframe Suppliers of Burbank, the partnership, and Airframe Suppliers, Inc., the corporation, were, after deducting expenses, divided “more or less equally between Wachter, Wetmore, Broz, and Hopkins”. It is agreed that only two of the four, Wachter and Wetmore, had any connection with the first-tier subcontractor, Pacific Airmotive. The Anti-Kickback statute, 41 U.S.C. § 51, (note 1 supra) prohibits “[t]he payment of any fee, commission, or compensation of any kind * * * by * * * .a subcontractor * * * to any officer, partner, employee, or agent of a higher tier subcontractor * * Appellant ■accordingly contends that only half of the sums which he paid, i. e., the amounts received by Wachter and Wetmore, constituted payment to persons proscribed ■by the Act, and that recovery must be ■limited to the amounts they received. Appellee argues that appellant by his ■own wrong made it possible for all of the monies to be distributed to proscribed ■employees, and the fact that only one-half actually went to them should not relieve appellant for liability for the entire sum; that “when the money left appellant’s hand it was all tainted with an illegal purpose” and the later division of the money “did not operate to remove this taint.” Counsel have cited no case, nor has our research disclosed any, which has considered this question. We conclude that the wording of the Act supports appellant’s position. Airframe Suppliers itself, whether as a partnership or corporation, “is not an officer, partner, employee, or agent of a higher tier subcontractor” to which payment of a fee or commission is prohibited. It was the payment to and receipt of monies by Wachter and Wet-more, the proscribed employees of Pacific Airmotive, which constituted the prohibited act. This was not accomplished until distribution of the payments among the partners or shareholders. Broz and Hopkins were not proscribed employees. The Government did not seek recovery from them of any of the money paid by appellant. We conclude that appellant may not be held for the monies received by Broz and Hopkins. Since the district court concluded that the entire sum of $34,692.44 was paid to proscribed employees, no findings were made as to the amounts which were actually paid to Wachter and Wetmore. The case must be remanded for additional findings on this point. Appellant’s third contention is that the court erred in concluding as a matter of law that payments made by appellant were in violation of the Anti-Kickback Act because there was no finding or evidence of payments to a proscribed entity. In the face of appellant’s admissions that one-half of the payments were “commissions paid as an inducement for and in acknowledgment of the orders awarded to Jensen Manufacturing Company * * * ” and that Jensen knew that monies paid to Airframe Suppliers of Burbank and Airframe Suppliers, Inc., would be received by Wachter and Wet-more, this argument seems somewhat specious. The Anti-Kickback Act (note 1) prohibits the payment “either directly or indirectly”, by or on behalf of a subcontractor to any employee of a higher tier subcontractor. The clear intent and wording of the act may not be evaded by the device of making payments through a partnership or corporation. Clearly one-half the amount was paid indirectly to Wachter and Wetmore, and the fact that the payments went through the partnership and corporation before reaching the proscribed recipients does not relieve appellant of liability. Finally, appellant argues that the Act is unconstitutional, (1) because it provides a conclusive presumption that the cost of any kickback was ultimately borne by the United States, and (2) because of alleged unequal treatment of those who are the payers and those who are the recipients of a kickback. This court has held that “conclusive presumptions do not establish a rule of evidence, but declare a rule of substantive law.” United States v. Jones, 9 Cir.1949, 176 F.2d 278, 288. In United States v. Davio, E.D.Mich.1955, 136 F. Supp. 423, 429, after quoting this statement from United States v. Jones, the court said: “As a rule of substantive law, the conclusive presumption of the Anti-Kickback Act is not offensive to due process since it is based on a logical and probable connection with the antecedent facts.” We agree. As pointed out in United States v. Davio, the Government bears all allowable costs in a cost-plus-a-fixed-fee or other cost reimbursable contract. This was recognized by Congress in enacting the Anti-Kickback Act. H.R.No.212, 79th Cong. 1st Sess., February 22, 1945, reads in pertinent part: “ * * * Since eost-plus-a-fixedfee or cost reimbursable prime contractors are reimbursed by the United States for the cost of all subcontracts and purchase orders performed thereunder, the Government undoubtedly bears the ultimate cost of such fees, commissions, and gratuities without receiving any benefit therefrom.” U.S.Code Cong.Serv. 1946, p. 1082. Nor is there merit in appellant’s contention that the Act is “unconstitutional because of unequal treatment given to those who pay as opposed to those who receive”. Assuming that there is unequal treatment or discrimination, which we question, it is not of such a nature as to render section 1 of the Anti-Kickback Act unconstitutional. The Fifth Amendment contains no equal protection clause, and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. Detroit Bank v. United States, 1943, 317 U.S. 329, 337-338, 63 S.Ct. 297, 87 L.Ed. 304, and cases there cited. No such case is presented here. The applicable rule was stated by this, court in Hess v. Mullaney, 9 Cir. 1954, 213 F.2d 635, (cert, denied 348 U.S. 836„ 75 S.Ct. 50, 99 L.Ed. 659), as follows: “ * * * No equal protection clause such as that directed by the Fourteenth Amendment to the States restricts the power of Congress. (Citations omitted.) As the authorized discrimination here cannot be said to be so extreme, or so devoid of reasonable basis as to be wanting in due process, we find no constitutional question present.” 213 F.2d at 644-645. Any discrimination in treatment under the Anti-Kickback Act is not “so extreme, or so devoid of reasonable basis as to be wanting in due process.” Reversed and remanded for determination of amounts received by the proscribed employees, Wachter and Wet-more, and entry of judgment for those amounts. . The statute, as it existed when the complaint was filed on September 27, 1957, provided in pertinent part: “The payment of any fee, commission, or compensation of any kind or the granting of any gift or gratuity of any kind, either directly or indirectly, by or on behalf of a subcontractor, as defined in section 52 of this title, (1) to any ofiicer, partner, employee, or agent of a prime contractor holding a contract entered into by any department, agency, or establishment of the United States for the furnishing of supplies, materials, equipment or services of any kind whatsoever, on a cost-ifius-a-fixed-fee or other cost reimbursable basis; or to any such prime contractor or (2) to any ofiicer, partner, employee, or agent of a higher tier subcontractor holding a subcontract under the prime contract, or to any such subcontractor either as an inducement for the award of a subcontract or order from the prime contractor or any subcontractor, or as an acknowledgment of a subcontract or order previously awarded, is-prohibited. * * * Upon a showing that a subcontractor paid fees, commissions, or-compensation or granted gifts or gratuities to an officer, partner, employee, or agent of a prime contractor or of another higher tier subcontractor, in connection, with the award of a subcontractor or order thereunder, it shall be conclusively presumed that the cost of such expense-was included in the price of the subcontract or order and ultimately borne by the United States. * * * ” The statute was amended in 1960 by Pub. L. 86-695, 74 Stat. 740, but the district, court in no way relied upon the amendment. . The failure to comply with the rules-“does not affect the validity of the appeal, but is ground for such action as we deem appropriate”. United States v. Gallagher, 9 Cir. 1945, 151 F.2d 556, 559. See also Hargraves v. Bowden, 9 Cir. 1954, 217 F.2d 839, 840. . Trial Stipulation, para. 12, Transcript of Record p. 38. . Brief for Appellee, p. 4, ftnt. 4: “Alan F. Broz and Robert W. Hopkins were not employees of Pacific Airmotive Corporation and were not made defendants in this action.” . Appellee relies upon Bigelow v. RKO Radio Pictures, 1946, 327 U.S. 251, 265, 66 S.Ct. 574, 580, 90 L.Ed. 652, and other cases holding that in computing damages the wrongdoer must “bear the risk of the uncertainty which his own wrong has created.” This is not a question of uncertainty. It is admitted that the proscribed employees receive one-half of the amount, more or less, after deducting expenses. If there should be any uncertainty regarding the amounts received by Wachter and Wetmore, that question must be resolved against appellant. . The United States argues further, that “the proscribed employees themselves as recipients would have been liable for the entire sum either as joint venturers or as partners”. It is not clear whether or not it is contended that the remaining partners and joint venturers would also ■ be liable. The judgment was entered against appellant and the corporation and not against any of the partners. It is immaterial whether the partnership be regarded as an entity or an association of individuals and whether any or all of the partners would also be liable personally. It is the payments to the proscribed employees which are prohibited and which may be recovered in this action. . R. 38, 39. . We cannot agree with appellant that the recipient “comes out even” so to speak while the payer is poorer by the amount received. The payer received substantial orders and contracts as a result of the kickbacks. This business must have been of value to appellant, since he was willing to pay a commission to get it. Presumably he recognized the risk of being held for the payments illegally made and was willing to take that risk.

FLAUM, Circuit Judge. Al J. Schneider (“Schneider”) was the principal shareholder of American National Corporation (“ANC”), a holding company, which in turn owned 100% of the stock of Schneider Transport, Inc. (“Transport”). In 1974, 1975 and 1976 Schneider sold portions of his ANC stock to certain Transport employees who were participating in an employee stock ownership plan. Schneider reported these transactions on the 1974-76 federal income tax returns he filed jointly with his wife, Agnes Schneider, characterizing them as sales of capital assets which generated long-term capital gains. The Internal Revenue Service (the “IRS”) alleged that these sales actually constituted a redemption of Schneider’s stock by ANC followed by a distribution of this stock pursuant to the employee stock ownership plan. The IRS asserted that Schneider should have reported the entire amounts he received from these alleged sales as dividend distributions. The IRS therefore issued deficiency notices for 1975 and 1976. The matter proceeded to trial and the Tax Court entered judgment against Schneider and his wife for $17,046 and $20,716 for the tax years of 1975 and 1976 respectively. We affirm. I. Transport was founded by Schneider in 1938 and is engaged in the freight transport business. Transport was one of a group of closely held corporations (the “affiliated corporations”) owned by Schneider and his immediate relatives. In 1971 Transport adopted an employee stock bonus plan (the “Transport Plan”). Under the plan, Transport’s Board of Directors determined in December of each year the total sum to be awarded by Transport to certain of its employees as bonuses for work done in that year. Early in the following year Transport’s President selected and notified the employees who would receive bonuses. These employees were given an option to receive their bonus in either cash or Transport nonvoting common stock. Employees who elected stock received previously unissued Transport nonvoting common stock; the number of shares received was based on the “Current Formula Price” (the book value of the stock with some modifications). A bonus recipient’s rights in the stock he or she received under the Plan were subject to a 10%-per-year vesting requirement. If the employee ceased to work for Transport within ten years of receiving the stock, he or she was required to offer to sell the stock to Transport at a price equal to 10% of the Current Formula Price for that year multiplied by the number of years of continued employment since the year the bonus was awarded. In addition, an employee wishing to sell any stock received pursuant to the Transport Plan was required to first offer the stock to Transport at the same price that would govern under the vesting rules. The plan required that notice of these restrictions be stamped on the stock certificates issued to the bonus recipients. In 1973, the affiliated corporations were substantially reorganized. ANC was formed to act as a holding company for these corporations. Pursuant to the reorganization, former Transport shareholders received ANC stock in exchange for their Transport stock. As of January 1, 1974, the Schneiders and their relatives owned 100% of ANC’s class A voting stock and 99.6% of the class B nonvoting shares. In addition, on this same day the members of the Schneider family and ANC entered into “the American National Non-Employee Buy-Sell Agreement” (the “Buy-Sell Agreement”). Under the Buy-Sell Agreement ANC was given a right of first refusal at the Current Formula Price before any Schneider family shareholder could sell his or her stock to a third party. Stock received by employees under the Transport Plan or the later adopted ANC Plan was not subject to this agreement. ANC also substantially adopted the Transport Plan, including the vesting requirements, for its employees and for all employees of its subsidiaries, including Transport. The secretary and president of ANC were authorized to issue the number of class B nonvoting shares necessary to implement what was now called the American National Employee Stock Ownership Plan (“the ANC Plan”). The ANC Plan, as later amended, differed from the Transport Plan in that the stock the bonus recipients would receive pursuant to the plan was not required to be issued directly by ANC in the first instance; rather, in the Board of Director’s discretion the stock could be already outstanding stock that the bonus recipients purchased from existing class B shareholders. In addition, ANC waived its right of first refusal under the Buy-Sell Agreement for all shares furnished by Schneider to carry out the needs of the plan. Schneider sold a small portion of his class B stock to employees pursuant to this arrangement in 1974, 1975, and 1976. The payment of the 1975 bonus, the first year in which the IRS assessed a deficiency, serves to illustrate the mechanics of the plan. On December 28, 1974 Transport's Board of Directors determined that the total amount of bonuses to be awarded for work related to 1974 would be $166,000. On February 20, 1975 certain employees were notified that they would receive a bonus, but were not told the exact amount of their individual bonuses. These employees were then required to elect pursuant to the American National Employee Stock Ownership Plan Undertaking and Agreement (“the Undertaking and Agreement”) whether to receive at least 25% of their bonus as ANC class B stock. On April 4, 1975 the bonus recipients were notified of the exact amount of their bonuses. Those employees who had committed to take at least 25% of their bonus in stock were then required to specify the exact percentage that they would take in this form. Transport paid the bonuses on April 21, 1975. Those employees electing to receive a portion of their bonus in the form of ANC class B stock received two checks. The first check was for the cash portion of the bonus, the second for the amount to be received in stock. On the back of the second check was stamped “pay to the order of Al J. Schneider.” Each employee who received two checks was instructed by a supervisor to sign the endorsement on the second check. The checks were collected and then transferred to Schneider. Schneider in turn deposited the cheeks in the Schneiders’ personal account. On May 12, 1975, ANC issued a total of 9,628 shares of class B stock to those employees who elected to receive a portion of their bonus in this form. The certificates these employees received, however, were not subject to the Buy-Sell Agreement but rather were subject to the terms and conditions of the ANC Plan, including the vesting provisions. Notice of these restrictions was stamped on the stock certificates. On the same day, Schneider’s class B certificate was cancelled and a new certificate issued representing 9,623 fewer shares. Schneider’s stock continued to be subject to the Buy-Sell Agreement. II. A. On appeal, the issue is how Schneider’s sales of his ANC class B nonvoting stock to Transport’s employees should be characterized for tax purposes. It is Schneider’s position that the transactions which occurred should be respected. He contends that Transport paid cash bonuses to a select number of its employees and these employees decided to purchase the ANC stock from Schneider. Because the shares were capital assets in Schneider’s hands and were sold in bona fide sales to Transport’s employees, in Schneider’s view, he correctly reported as a capital gain each year the sum of the differences between the selling prices and his tax basis- in the shares he sold. The Tax Court rejected this view. The court held that the transactions involving the payment of the 1975 and 1976 bonuses and stock sales should be characterized as stock redemptions followed by distributions of the redeemed shares as compensation to the electing bonus recipients. The Tax Court specifically found that the intended employee compensation was the stock, not the preendorsed checks. Once the transactions are characterized in this manner, the appropriate tax treatment for Schneider’s exchange of his stock for cash is determined by the rules governing stock redemptions. Schneider concedes on appeal that if it is determined that his stock was redeemed by ANC, the sum he received is properly taxed as ordinary income to him. 26 U.S.C. §§ 301, 316. The Supreme Court has stated that “[i]t is for the trial court, upon consideration of an entire transaction, to determine the factual category in which a particular transaction belongs.” United States v. Cumberland Public Service Co., 338 U.S. 451, 456, 70 S.Ct. 280, 282, 94 L.Ed. 251 (1950). We therefore review the Tax Court’s characterization under a clearly erroneous standard. B. This ease involves a series of transactions structured in a manner which ostensibly achieved preferential tax treatment from the perspective of the taxpayer. The right of a taxpayer to arrange his or her affairs to minimize taxes is well established. The Supreme Court observed long ago that “[t]he legal right of a taxpayer to decrease the amount of what otherwise would be his [or her] taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” Gregory v. Hel-vering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596 (1935). But to state this principle is not to decide the case. See generally, Gunn, Tax Avoidance, 76 Mich.L.Rev. 733 (1978). In Gregory, for example, the Court proceeded to disregard the taxpayer’s carefully arranged corporate reorganization. In so doing, the Court asked: “Putting aside, then, the question of motive in respect of taxation altogether, and fixing the character of the proceeding by what actually occurred, what do we find? ” Gregory, 293 U.S. at 469, 55 S.Ct. at .267 (emphasis added). Applying this same approach to the present situation, we affirm the Tax Court’s characterization of Schneider’s stock sales as constructive redemptions. As. the Tax Court observed, “[a]t the start of each year’s stock bonus process, [Schneider] had stock and the corporations had funds. At the end of each year’s stock bonus process, [Schneider] had funds that came from the corporations, and the corporations’ employees had stock that came from [Schneider].” Estate of Al J. Schneider v. Commissioner of Internal Revenue, 88 T.C. 906, 941 (1987). Our specific focus is on how ANC class B stock which Schneider initially held subject to the restrictions imposed by the Buy-Sell Agreement ended up in the hands of Transport employees subject to the limitations of the ANC Plan. We agree with the explanation arrived at by the Tax Court: a redemption followed by a stock distribution. Schneider attempts to avoid this characterization by emphasizing that the Tax Court specifically found that he was not in need of cash at the time of the alleged stock sales. In Schneider’s view this indicates that the arrangement was not an effort to “bail” money out of the corporation at capital gain rates, but rather was motivated by legitimate business purposes. He claims that the structure of the transaction was designed to facilitate the administration of the ANC Plan. In order to implement the plan, Transport was required to obtain the ANC shares necessary to meet its obligations to those employees who elected to receive ANC stock. The principal operating officer, Schneider’s son, testified that it was not desirable to satisfy these obligations by having ANC issue new shares to Transport because it would dilute the ownership interests of ANC’s existing shareholders. In addition, the issuance of new ANC stock would have resulted in a troublesome cash build-up in ANC. As the minutes of ANC’s board of directors’ meeting explain: At present, [ANC] is functioning only as a holding company. If newly issued stock of [ANC] is to be used to provide the shares necessary under the [ANC] Plan, Transport would have to pay the cash into [ANC] for the shares to be issued. [ANC] would then have little use for this cash and would probably either have to lend it back to Transport or contribute it to Transport capital. A simpler method is to merely give the employee the cash and let him buy the stock from [Schneider]. [Schneider] stated that he was willing to accommodate the [ANC] Plan in this manner, at least this year.... (emphasis added). The unstated byproduct of this arrangement was that Schneider would allegedly receive capital gains treatment when he relinquished his shares. The fact that Schneider did not need cash and therefore allegedly did not have a tax motive for participating in this particular arrangement is not dispositive. See Cumberland, 338 U.S. at 455, 70 S.Ct. at 282 (upholding taxpayers arrangement despite finding that it was predominantly motivated by tax purposes); Gregory, 293 U.S. at 469, 55 S.Ct. at 267 (“the question for determination is whether what was done, apart from the tax motive, was the thing which the statute intended”). See also Gunn, Tax Avoidance, 76 Mich.L.Rev. at 745 (noting that the value of using a “tax motive” test to decide cases is seriously impaired by the fact that “most transactions are taxed without regard to the presence or absence of a tax motive.”) (footnote omitted). Schneider must show that the legal restrictions applicable to the stock can be reconciled with his position that the stock was sold directly to Transport’s employees. This he cannot do. Schneider claims that the cash payment and stock sales must be viewed as independent steps for tax purposes. He asserts that the bonus recipients constructively received their bonus entirely in cash at the time they were required to elect the form their bonus would take. In Schneider’s view, cash is the standard form of compensation and the election itself constituted an independent step under which an employee who received cash chose to use a portion of it to purchase stock. Even if we assume that this characterization of the specific operation of the election feature is correct, it does not indicate whether Transport or Schneider was the direct source of the stock that the electing bonus recipients received. The Transport Plan and the later ANC Plan (American National Employee Stock Ownership Plan) were adopted to attract, retain, and motivate top managerial personnel by providing “an equity position” in the parent holding company. In the typical situation where a bonus plan involves a stock ownership component, the company is the source of the stock. The amount of the bonus represents compensation to the employee; that the employee can opt to receive a portion of the bonus as stock does not usually alter the fact that the bonus, in whatever form, is received directly from the employer. Indeed, this was how the Transport Plan operated from its adoption until 1974. That bonus plans generally function in this manner, however, does not mean that variations are automatically problematic; a subtler argument seems both possible and implicit in Schneider’s position. It can be contended that Transport merely arranged and facilitated the stock sales without actually having acted as a principal in the transactions. Under this position, Transport’s stated goal of having its managerial personnel own stock was achieved by making it possible for these employees to purchase stock on attractive terms from a separate source, Schneider, and by assisting the employees in carrying out the sales by pre-en-dorsing and collecting the checks on Schneider’s behalf. If we accept this view, Transport’s bonuses to its employees consisted of cash and the value of the service of making ANC class B stock available to employees at the given price. Prior to 1974, employees who received cash bonuses could turn around and purchase stock from Transport. From 1974-76 Transport continued this basic format, but instead of acting as the seller, it arranged to make the stock available through Schneider. In other circumstances it may be a difficult task to determine whether non-cash property arranged by the employer on an elective basis should be viewed as acquired by the employer from a third-party provider of such property and then distributed by the employer to the employee. The alternative position, that the employer pays only cash to the employee as compensation and then for the employee’s convenience, and upon his or her election, transfers the cash to the third-party on behalf of the employee may not be implausible. Generally this distinction will not matter because our focus is on the tax ramifications to the third-party which will typically not vary regardless of whether the property is deemed sold to the corporation or the corporation’s employees. For most kinds of property, a third-party seller will usually recognize the same type of gain or loss in either case. The issue becomes critical here only because the property is stock and Schneider is a substantial shareholder in ANC. As previously discussed, in this situation the tax consequences to Schneider vary depending on whether he sold his stock to a third party as opposed to having it redeemed by ANC. Because the documents executed in these transactions indicate that the ANC stock the electing bonus recipients received did not move directly from Schneider to the employees, we hold that Schneider’s stock was constructively redeemed. The stock received by the employees was subject to the restrictions imposed by the ANC Plan, including the vesting provisions. In contrast, this same stock in Schneider’s hands, which the electing bonus recipients allegedly purchased directly from him, was subject to the Buy-Sell Agreement, not the ANC Plan. Paragraph 2 of the Buy-Sell Agreement set forth ANC’s right of first refusal and provided that “[i]f stock of [ANC] is sold under the terms of [paragraph 2] to a person other than [ANC], such shares shall be free of all further restrictions hereunder.” Because ANC had waived its right of first refusal with respect to the stock Schneider sold to the employees, absent other agreements, the employees’ stock should not have been subject to any restrictions. Schneider contended at oral argument that the ANC Plan restrictions were a condition of his offer to sell the class B stock. Although we have not been directed to any documentary evidence of this assertion in the record, if this were so, then ANC was merely the third-party beneficiary of the sales agreement between Schneider and the electing employees. ANC’s actions belie such a status. In later years ANC modified the restrictions in the ANC Plan, in particular relaxing some of the vesting provisions applicable to employees over 55 years of age. Schneider’s counsel conceded at oral argument that it did so without obtaining the express consent of either Schneider or the employees. A third-party beneficiary, however, cannot modify a contract between Schneider and individual employees without their express consent. Transport acted as if it were a principal to the contract, not a third-party beneficiary. Transport was in fact a party to the key agreement. The ANC plan restrictions were imposed on the employee’s stock as a condition set forth in the Undertaking and Agreement executed by the employee. The agreement was between the employee and the corporation; Schneider was not a party. It provided in part that “in consideration of the receipt of stock under the American National Stock Ownership Plan ... the employee agrees to all restrictions and undertakes all the obligations set forth in the Plan.” The Undertaking and Agreement also accounts for the corporation’s ability to unilaterally amend the plan, providing that “[t]he Employee agrees that the Plan may be amended and interpreted in the future by the Board of Directors of the corporation and that he will abide by all such amendments and interpretations.” Thus, contrary to Schneider’s position at oral argument, the ANC Plan restrictions were applicable because of an agreement executed between the corporation and the bonus recipient. Under these facts and circumstances, we hold that the shares received by the employees were obtained directly from Transport. Once it is determined that the bonus recipients received their stock from Transport, the rest of the pieces fall into place. In order to administer the ANC Plan, Transport needed to acquire the necessary ANC stock. ANC was the most obvious source, but it was reluctant to issue new stock because of the dilution and cash build-up effects. Both problems were solved by having ANC obtain the stock from Schneider. There was no dilution because the stock was previously outstanding. In addition, ANC suffered no cash build-up because the funds Transport paid to it were used to satisfy the obligations to Schneider it incurred to acquire his stock. ANC’s acquisition of Schneider’s stock, however, is a redemption under § 317 of the Internal Revenue Code. The decision of the Tax Court is AFFIRMED. . The facts of this case are set out in great detail in the Tax Court’s opinion. Estate of Al J. Schneider v. Commissioner of Internal Revenue, 88 T.C. 906 (1987). We set forth only those facts pertinent to this appeal. The stock which was allegedly sold to the Transport employees was owned by Al Schneider, but because AI and Agnes Schneider filed joint federal tax returns, the Tax Court petition was filed jointly by the Schneiders. In addition, on March 2, 1983 A1 Schneider died and his estate was substituted as a party. For convenience and simplicity we hereinafter refer only to Schneider. . The bonus related to work performed in 1974, but was actually paid to the employees in 1975. .There is some confusion generated by the fact that ANC, the holding company, adopted the ANC Plan for its employees and "employees of all its subsidiary and affiliated corporations.” The confusion centers on whether in the Tax Court's view, ANC or Transport distributed the stock to the participants in the ANC Plan. The ANC Plan seems to have originally contemplated that Transport would distribute the ANC stock. The minutes of the January 1, 1974 Board of Directors’ meeting state that "[a]s to those employees who choose stock, Transport, or the other subsidiary and affiliated corporations ... will transfer to [ANC] the cash to buy newly-issued shares from [ANC].” This is corroborated by the fact that the Transport Board, not the ANC Board, voted on the total size of the bonus that Transport would award each year. In addition, minutes from the March 17, 1974 Board of Directors' meeting state that if ANC issued new stock to meet the requirements of the Plan, "Transport would have to pay cash into [ANC] for the shares to be issued.” Although there is some conflicting evidence (and the IRS and the Tax Court often fudge the issue), see, e.g., Schneider, 88 T.C. at 916 n. 7, 942, we assume when discussing the IRS’s and the Tax Court’s position that Transport administered the employee stock ownership plan in the same manner as it did prior to 1974, only that after this date it used ANC stock, not its own. Accordingly, under this position, Schneider’s ANC stock was redeemed by ANC and then issued to Transport in exchange for cash, the amount corresponding to the sum of the second checks. Transport in turn distributed the stock to its employees pursuant to the plan. Further, even if Transport, not ANC, is considered to have redeemed Schneider's stock, under § 304 of the Internal Revenue Code, Transport would be deemed to have first distributed the cash to ANC which then used the cash to redeem Schneider’s stock. . The Tax Court employed the step-transaction doctrine, ruling in part that the employees were mere conduits for the "second check” and therefore the cash flowed directly from Transport to Schneider. We approach the other half of the transaction, focusing on how the stock got from Schneider to the Transport employees. Because we hold that there were more steps — the stock was transferred to ANC, Transport and then to the employees — than Schneider would wish to recognize, we do not speak in terms of the step-transaction doctrine. . A redemption is defined as a corporation’s “acqui[sition] of its stock in exchange for property, whether or not the stock so acquired is cancelled, retired, or held as Treasury stock.” 26 U.S.C. § 317(b). . Generally property received by a shareholder of a corporation from that corporation with respect to his or her stock ownership is treated as a dividend distribution and the entire amount of the distribution is ordinary income to the shareholder. 26 U.S.C. §§ 301, 316. Section 302(b) enumerates certain circumstances in which a shareholder treats the acquisition of his or her stock by the issuing corporation in return for property as an exchange of this stock. If the stock is a capital asset, then any gain realized would be a capital gain. Schneider now agrees, however, that the exceptions set forth in § 302(b) are not applicable to his situation. As discussed infra, Schneider argues that the business purposes motivating the stock purchase arrangements are relevant to determining whether these transactions should be recharac-terized as stock redemptions, but not to the specific application of the "not essentially equivalent to a dividend” standard set forth in § 302(b)(1). See United States v. Davis, 397 U.S. 301, 312, 90 S.Ct. 1041, 1048, 25 L.Ed.2d 323 (1970) (holding that the business purpose of a transaction is irrelevant in determining whether a redemption is substantially equivalent to a dividend). . The Tax Court found that both the employer and the employees considered the stock itself to be compensation. Employees who received a bonus were required to fill out the Undertaking and Agreement which provided in part that the employee was electing to receive ANC class B common stock “as additional compensation” and that "this stock and all future stock received as additional compensation is subject to certain restrictions.” It does not say, as one would expect under the hypothesized position, that the employee has been awarded cash as compensation and notify the employee of an opportunity to buy stock from Schneider. The Tax Court’s position is further corroborated by a resolution adopted at the March 12, 1974 Board of Directors meeting which provided that ANC would waive its right of first refusal with respect to “its shares of class B stock which [Schneider] is furnishing to fulfill the requirements of the [ANC] Plan for additional compensation." Transport, not Schneider, pays compensation to Transport employees; stock received as compensation would therefore have come directly from Transport. . Because Schneider’s position is that the ANC Plan restrictions were applicable because they were a condition of his sale, we need not address the argument that Transport had required these restrictions to apply as a condition for “arranging” the sale with Schneider. . The parties also contest the applicability of § 83 of the Internal Revenue Code and in particular Treasury Regulation § 1.83 — 6(d)(1). The Tax Court did not reach this issue. Because we affirm the Tax Court’s finding of constructive redemptions, we also do not reach the issue of the application of § 83 to this case.

SELYA, Circuit Judge. Defendant-appellant Sandro Martinez pled guilty to a single count of possessing a controlled substance with intent to distribute. See 21 U.S.C. § 841(a)(1) (1994). The district court found that the substance in question comprised 131.40 grams of cocaine base and 9.43 grams of powdered cocaine. The court then determined that the cocaine base was crack cocaine, see United States v. Martinez, 981 F.Supp. 726, 727 (D.R.I.1997), and sentenced Martinez to 121 months in prison. Martinez appeals, contending that the government failed to prove that the 131.40 grams of cocaine base was in fact crack cocaine. We need not tarry. In United States v. Robinson, 144 F.3d 104 (1st Cir.1998) [No. 97-2185], we rejected an almost identical challenge. See id. at 107-10. We held squarely that, once the government laid a proper foundation “by introducing a chemical analysis ... proving that, chemically, the contraband was cocaine base,” id. at 109, no further scientific evidence was needed. Instead, the government could bridge the evidentiary gap between cocaine base and crack cocaine by presenting lay opinion evidence (or an opinion proffered by an expert who possessed practical as opposed to academic credentials) from “a reliable witness who possesses specialized knowledge” (gained, say, by experience in dealing with crack or familiarity with its appearance and texture). Id. at 108-09. These precepts are controlling here. To be sure, there is one arguably significant difference between Robinson and the case at bar: Martinez posits that the government introduced “[n]o testimony ... as to the water solubility or the melting point” of the confiscated contraband. Brief for Appellant at 5. That statement is true as far as it goes, but it does not take Martinez very far. Both solubility and melting point constitute ways of distinguishing between cocaine powder (which is water-soluble but has a relatively high melting point and therefore cannot be smoked) and cocaine base (which is not water-soluble and which can be smoked because it has a lower melting point). See Robinson, 144 F.3d at 108; United States v. Booker, 70 F.3d 488, 491 (7th Cir.1995), cert. denied, 517 U.S. 1111, 116 S.Ct. 1334, 134 L.Ed.2d 484 (1996). Neither characteristic is of assistance, however, in distinguishing among forms of cocaine base. As we wrote in Robinson, 144 F.3d at 108-09: “Chemical analysis cannot distinguish crack from any other form of cocaine base because crack and all other forms of cocaine base are identical at the molecular level. Thus, no further scientific testimony would have been of any conceivable assistance, and we will not require the government to indulge in an empty exercise.” In this case, as in Robinson, the government adduced competent scientific evidence—namely, the testimony of Gino Rebussini, a chemist—to prove that the 131.40 grams of contraband associated with the appellant’s arrest was cocaine base. Given the witness’s qualifications, his opinion constituted competent proof of the fact that the substance was cocaine base. That further tests could have been conducted, but were not, goes to the weight of the evidence, not to its admissibility. See, e.g., United States v. Bonds, 12 F.3d 540, 561 (6th Cir.1993); Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th Cir.1991). Factors such as water solubility and melting point, thereafter raised by the defendant, went to the weight of the government’s evidence, not to its admissibility. That ends the matter. Once the government adduced Rebussini’s testimony, no additional scientific evidence was exigible. From that point forward, as in Robinson, competent lay testimony, remarking the substance’s distinctive appearance and texture and identifying it as crack, forged the final link in the evidentiary chain. We need go no further. In Robinson, we said that “[o]n the strength of [such] proof, and in the utter absence of any controverting evidence,” the district court’s finding “easily survive[d] clear-error review.” Robinson, 144 F.3d at 109. The same is true in this case. Affirmed.

BENEDICT, District Judge. The prisoner is indicted under section 2165 of the Revised Statutes of the United States, for perjury committed by him in making an application to be naturalized before the city court of Yonkers. A demurrer to this indictment brings before the court the question, whether the city court of Yonkers had jurisdiction to entertain the prisoner’s application to be made a citizen of the United States. If that court has not such jurisdiction, the indictment charges no offence, and the prisoner must be discharged. The provision in the laws of the United States, upon this subject, is to be found in section 2165 of the Revised Statutes, where it is enacted, that an alien may be admitted to become a citizen of the United States, upon making certain declarations on oath before “a court of record of any of the states, having common-law jurisdiction, and a seal and clerk.” It is conceded, that the city court of Yonkers is a court of record, and that it has a clerk and a seal, but the question is,- whether it is a court having common-law jurisdiction, within the meaning of the statute of the United States, above quoted. The jurisdiction of the city court of Yonkers is to be found in the laws of the state of New York. Chapter 866 of the Laws of 1S72 confers upon that court all the power and jurisdiction of justices of the peace, and all jurisdiction and power, within the city of Yonkers, of the marine court in the city of New York, and it clothes the judge of that court with all the powers of a county judge and of a judge of the supreme court of the state at chambers. In addition to these powers, chapter 61 of the Laws of 1S73 confers upon this court civil jurisdiction in all actions for the recovery of money, when the amount recovered does not exceed $1.000. It is manifest, that, by virtue of these statutory provisions, the city court of Yonkers is authorized to exercise some common-law jurisdiction, that is, it has jurisdiction to hear and determine causes which were cognizable by the courts of law, under what is known as the common law of England, although it has not jurisdiction of all such causes. It will be noticed, however, that the statute of the United States does not require of courts authorized to entertain applications for naturalization, that they shall have all the jurisdiction possessed by any court of law. If the court may exercise any part of that jurisdiction, it is within the language of the statute, and within its meaning, as well. Thus, the courts of Massachusetts, in Ex parte Gladhill, 8 Metc [Mass.] 168, held the police court of Lowell to be a court exercising a common-law jurisdiction, and, therefore, authorized to entertain applications to be made citizens of the United States, because it was by law authorized to “hear and determine all complaints and prosecutions, in like manner as justices of the peace,” with “jurisdiction of all civil suits and actions cognizable by a justice of the peace.” The reasoning of this decision was adopted by the circuit court of the United States for the First circuit, in Ex parte Oregg [Case No. 3,380], where, upon the same ground, the police court of Lynn was held, by the circuit court of the United States, to be a court having common-law jurisdiction, within the meaning of the United States statute. A like conclusion was reached by the supreme court of New Hampshire, in respect to the police court of Nashua, and upon the same ground. State v. Whittemore, 50 N. H. 245. In re Connor, 39 Cal. 98, a similar question in respect to tne county courts of California was considered, and it was there adjudged, that a court having jurisdiction to prevent or abate a nuisance was a court exercising common law jurisdiction, within the meaning of this statute of the United States. The court, in the case, say it is not necessary to have “jurisdiction over all classes of common law actions,” and that “the act of congress does not require that the courts shall have all the common law jurisdiction which pertains to all classes of cases.” See, also, the meaning given by the supreme court of the United States to the words “common law,” as used in the constitution of the United States. Parsons v. Bedford, 3 Pet. [28 U. S.] 433, 446. In the light of these decisions there seems to be no reason for doubting that the language of the statute is sufficiently broad to permit the city court of Yonkers to hear and determine the prisoner’s application to be made a citizen of the United States. This is the only question that has been presented for my consideration, and, entertaining the opinion above expressed, I must overrule the demurrer, and direct the prisoner to plead to the indictment.

STALEY, Circuit Judge. The National Labor Relations Board has found that respondent, Local 825, International Union of Operating Engineers, AFL-CIO, violated § 8(b) (4) (i) and (ii) (D) of the National Labor Relations Act, as amended. More particularly, the Board found that respondent engaged in conduct proscribed by that section with the object of forcing or requiring Nichols Electric Company to assign certain work to it rather than to electricians employed by Nichols. 140 N.L. R.B. No. 48 (1963). The case is here on the Board’s petition for enforcement of its order entered pursuant to that determination. The events giving rise to this dispute occurred at the site of the construction of a reservoir in Clinton, New Jersey. Elmhurst Contracting Company was the general contractor on this project. It subcontracted the drilling and excavation work to Selby Drilling Company. Elmhurst and Selby each had a collective bargaining agreement with respondent in which that union was recognized as the exclusive bargaining representative of all employees engaged in the operation of power equipment specified in a schedule attached to that agreement. Included in the specified list were winch trucks and post hole diggers. Each agreement purported to bind all subcontractors of any employer who was a party to it and stated that any employer who sublet any of his work did so subject to the terms and conditions of the agreement. Selby subcontracted the erection of certain electrical transmission lines on the project to Nichols. Nichols had no collective bargaining agreement with respondent; its employees were represented by the International Brotherhood of Electrical Workers (“IBEW”). On May 3, 1961, six of these employees came upon the construction site to erect and wire electrical pole lines. In brief, this requires digging a hole in the ground, standing the pole firmly in it, and stringing electrical transmission lines from pole to pole. As was its usual practice, Nichols proposed to do this with the aid of a line truck equipped with a power-driven auger and winch. In this operation, the auger, which is attached to the rear of the truck, is set in position and, by means of power supplied from the truck or from another source, advances into the hole and removes the dirt. A power driven A-frame and winch is then set in position on the rear of the truck and is used to place the electric line pole into the hole. As the operation was about to begin, Gatti, the shop steward of Local 825 employed by Elmhurst, informed O’Brien, Nichols’ foreman, that the devices could not be operated without operating engineers. When O’Brien disputed this, further discussion was had with Bates, the lead engineer employed by Elmhurst. Bates cited respondent’s contract with Selby as showing that the operating engineers were entitled to the work. In the meantime a number of operating engineers gathered around the vicinity of the power auger. At the instance of Bates, two operating engineers were sent to the job site, but O’Brien refused to hire them because the business agent for the electricians had informed him by telephone that the electricians were entitled to the work. O’Brien discussed the problem with Kangas, Selby’s job superintendent, who suggested that the holes be dug by hand. The machines were removed from the job site, and no work was done that day, but the Nichols crew returned on May 9, again with the line truck, to commence drilling operations. Gatti then summoned various operating engineers employed by Elmhurst and Selby and told them to prevent the operation of the auger. The operating engineers gathered around the machine and cited their contract with Selby as indicating that they were entitled to the work. O’Brien again discussed the problem with Kan-gas who was unable to resolve it with Gatti. Kangas repeated his suggestion that the holes be dug manually. O’Brien removed the machine from the job site, and subsequently completed the digging by hand. On May 11, 1961, Nichols filed the unfair labor practice charges which resulted in the order of the Board presently under consideration. In addition, Nichols filed other charges alleging that the same conduct on the part of respondent constituted a violation of the secondary boycott provisions of the Act. 29 U.S. C.A. § 158(b) (4) (i) and (ii) (B). The Board agreed, and its petition for enforcement of the order entered in that case was consolidated with this proceeding for the purpose of oral argument in this court. However, though the cases arise out of the same set of factual circumstances, they pose distinct legal issues which require consideration in separate opinions. Accordingly, except where specifically noted, we deal in this opinion only with the questions raised by the finding of a violation of the jurisdictional dispute section of the statute. 29 U.S.C.A. § 158(b) (4) (i) and (ii) (D). In accordance with § 10 (k) of the Act, 29 U.S.C.A. § 160(k) the Board first conducted a hearing to determine the merits of the jurisdictional dispute. This resulted in a determination that the electricians were entitled to the work. When respondent refused to comply with this determination, the complaint alleging a violation of § 8(b) (4) (i) and (ii) (D) was filed. The parties agreed that the only evidence to be adduced at the hearing on that complaint would be the record in the § 10 (k) proceeding, together with the record in the secondary boycott hearing. They further stipulated that the trial examiner should credit the testimony of the General Counsel’s witnesses, notwithstanding the testimony of any witnesses for respondent. The trial examiner’s finding of a violation of § 8(b) (4) (i) and (ii) (D) was adopted by the Board. We are met, in limine, with respondent’s contention that the Board’s determination in the § 10 (k) proceeding was invalid for the reason that Local 825 had submitted the dispute to the National Joint Board for the Settlement of Jurisdictional Disputes which had rendered a decision assigning the work to the operating engineers. However, Nichols had previously notified the Joint Board that it would not recognize any decision rendered by it, and the IBEW reaffiliated with the Joint Board in 1956 upon the express condition that it would not be bound by decisions involving electrical line transmission work. Accordingly, the Board found that the parties had not agreed upon a method for adjusting their dispute. In essence, respondent argues that both Nichols and the IBEW were without power to refuse to submit the dispute to the Joint Board because of their affiliation with it. But the rules of that body require contractors first to file a stipulation in which they agree to be bound by the decision of the Joint Board. No such stipulation was filed by Nichols- or the contractors’ association of which it is a member. Moreover, not only had the IBEW expressed its refusal to be bound by Joint Board decisions of this nature, but the record indicates that it was never notified of the submission of this dispute, nor did it participate in the proceedings. Certainly, in these circumstances, it cannot be held to be bound by the decision rendered by the Joint Board. On the merits, respondent challenges, the Board’s determination in the § 10(k) proceeding as arbitrary and capricious. In order to properly evaluate this argument, it is appropriate to first consider the nature of the Board’s duty as well as-its powers under § 10 (k). In National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 81 S.Ct. 330, 5 L. Ed.2d 302 (1961), the Supreme Court, rejecting the view of the Board, held that § 10 (k) requires it to determine the merits of jurisdictional disputes by affirmatively deciding which group of employees-is entitled to the disputed work. In discussing the standards to be applied in making these determinations, the Court, stated: “ * * * It is true that this forces the Board to exercise under § 10 (k) powers which are broad and lacking in rigid standards to govern their application. But administrative agencies are frequently given rather loosely defined powers to cope with problems as difficult as those posed by jurisdictional disputes and strikes. It might have been better, as some persuasively argued in Con gress, to intrust this matter to arbitrators. But Congress, after discus■sion and consideration, decided to intrust this decision to the Board. It has had long experience in hearing and disposing of similar labor problems. With this experience and a knowledge of the standards generally used by arbitrators, unions, employers, joint boards and others in wrestling with this problem, we are ■confident that the Board need not disclaim the power given it for lack of •standards. Experience and common sense will supply the grounds for the performance of this job which Congress has assigned the Board.” 364 U.S. at 583, 81 S.Ct. at 336, 5 L.Ed.2d 302. In accordance with this explication, the Board has articulated its approach to this problem in the following manner: “At this beginning stage in making jurisdictional awards as required by the Court, the Board cannot and will not formulate general rules for making them. Each case will have to be decided on its own facts. The Board will consider all relevant factors in determining who is entitled to the work in dispute, e. g., the skills •and work involved, certifications by the Board, company and industry ■practice, agreements between unions •and between employers and unions, awards of arbitrators, joint boards, and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer’s business. This list of factors is not meant to be exclusive, but is by way of illustration. The Board cannot at this time •establish the weight to be given the various factors. Every decision will have to be an act of judgment based on common sense and experience rather than on precedent. It may be that later, with more experience in concrete cases, a measure of weight can be accorded the earlier decisions.” International Ass’n of Machinists, Lodge 1743, AFL-CIO (Jones Construction Co.), 135 N.L.R.B. 1402, 1410-1411 (1962). In view of these considerations, we must approach this issue with an awareness of the limited scope of judicial review of the Board’s award in such matters. The Board considered a number of factors in deciding that the work should be assigned to the electricians. These included the provisions of the respective collective bargaining agreements, the language of both union constitutions, the determinations of the Joint Board, and the custom and practice in New Jersey. The language of the collective bargaining contracts of both unions, though quite broad, was held not to cover the precise work which is the subject of this dispute. The same conclusion was reached with respect to the union constitutions and with a number of Joint Board awards in favor of the Operating Engineers. With regard to those awards covering the specific operation presented by the case at bar, it was noted that the IBEW had not joined in submitting the disputes to the jurisdiction of the Joint Board. The Board placed considerable emphasis on the fact that it was the uniform custom and practice of electrical contractors in New Jersey to assign this work to electricians. Because these assignments covered the very operation which is the subject of this dispute, the Board considered this evidence to be direct and unequivocal. Respondent argues that this is not a compelling consideration since it is to be expected that electrical contractors would assign this work to electricians who are regularly employed by them. But regardless of the motives of the employer in making such assignments, they are, nonetheless, evidence of custom and practice. In short, under National Labor Relations Board v. Radio and Television Broadcast Engineers, Local 1212, 364 U.S. 573, 81 S.Ct. 330, 5 L. Ed.2d 302, it is the function of the Board and not this court to consider the relevant factors and to weigh and evaluate the evidence adduced with respect to each. Since the Board has done that in this case and as its determination finds support in the record, we cannot say that it has failed to properly perform its statutory duty. The final contention of respondent is that, assuming, arguendo, that an object of the work stoppage was to enforce the subcontract clause contained in its agreements with Elmhurst and Selby, such conduct is lawful under § 8(e) of the Act. This argument is set forth in detail in respondent’s brief in the secondary boycott proceeding, but has been incorporated by reference in its brief in the case at bar. We think it appropriate to treat the issue at this point. The Board agrees that the subcontract clause is lawful under the construction industry exemption contained in the proviso to § 8(e). But as the Board correctly points out, the Supreme Court has conclusively determined that such a clause, though not unlawful in itself, is no defense to what would otherwise constitute a violation of § 8(b) (4). Local 1976, United Brotherhood of Carpenters v. National Labor Relations Board, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958). Respondent admits that the legislative history of § 8(e) indicates that Congress did not intend to change the existing state of the law when it enacted this provision in 1959. See, e. g., National Labor Relations Board v. International Union of Operating Engineers, Local 12, 293 F.2d 319, 323 (C.A.9, 1961); National Labor Relations Board v. Bangor Building Trades Council, AFL-CIO, 278 F.2d 287, 290 n. 4 (C.A.l, 1960). However, it seeks to distinguish this case from Local 1976 on the grounds that here the work was to be performed at the job site. We fail to discern any substance in this distinction, for the fact that the work is to be performed at the job site has relevance only in determining whether the clause is within the construction industry proviso to § 8(e), and has-no bearing upon the legality of an attempt to enforce it by means prohibited by § 8(b) (4). The order of the Board will be enforced, and a form of decree may be submitted. . “§ 158. Unfair labor practices. K* •!• '5* *5* “(b) It shall be an unfair labor practice for a labor organization or its agents — ■ ***** “(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to * * * perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either ease an object thereof is — ■ * * * * * “(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work * * 29 U.S.C.A. § 158 (b) (4) (i) & (ii) (D). . The Board credited the following testimony of O’Brien on this point: “Q. After he called to these men, what happened? Did you hear what he said to them? “A. Tes, sir. He told them that ‘Here is some men taking bread out of your mouths. Are you going to stand for that? They are taking your work.’ “And of course, there was an agreement that we were taking their work. Mr. Gatti said, ‘I want you to gather around the machine so that it doesn’t do any more digging.’ “Q. To whom did he say this? “A. To the Operating Engineers. “Q. Did they do anything, the Operating Engineers? “A. They just stood around the equipment.” . § 10 (k) empowers and directs the Board to hear and determine the dispute, unless the parties submit satisfactory evidence that they have adjusted it, or have agreed upon methods for voluntary adjustment. . As the Board noted, none of the parties adduced evidence of custom and practice on a nationwide basis. . That section makes so-called “hot cargo” agreements unenforcible and void, but provides a limited exemption for construction industry agreements. 29 U.S. C.A. § 158(e). . Respondent also argues that the subcontract clause makes Elmhurst and Selby primary rather than secondary employers. But the undisputed evidence makes it abundantly clear that respondent’s primary grievance was with Nichols, and not with Elmhurst and Selby. In any event, if, as respondent concedes for the purposes of this argument, an object of the work stoppage was to force these employers to cease doing business with Nichols, such conduct is unlawful under the rule of Local 1976, United Brotherhood of Carpenters and Joiners of America, v. National Labor Relations Board, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958).

WINTER, Chief Judge: Nelson A. McCall appeals from a sentence imposed by Judge Scheindlin after he pleaded guilty to embezzlement. Judge Scheindlin calculated McCall’s Sentencing Guidelines offense level based in part on her determination that a two-level “vulnerable victim” enhancement applied. She then sentenced McCall to a fifteen month term of imprisonment. McCall contends on appeal that Judge Scheindlin erred in applying the vulnerable victim enhancement. We remand for further findings. BACKGROUND McCall worked as a customer service representative at a branch of Apple Bank from September 1995 until February 27, 1997. In February 1997, an accountholder contacted the bank after receiving a form from the Internal Revenue Service indicating that an unauthorized distribution had been made from an Individual Retirement Account (“IRA”) in the customer’s name. Upon investigation, the bank discovered that the funds in question had been transferred to a savings account held by McCall. An investigation revealed that McCall had embezzled at least $196,976 from various accounts at the bank. McCall pleaded guilty to embezzlement by a bank employee, in violation of 18 U.S.C. § 656. His presentence report included a two-level enhancement of his Guidelines offense level on the ground that McCall knew or should have known that one or more victims of his offense were particularly susceptible to the criminal conduct. See U.S.S.G. § 3Al.l(b) (vulnerable victim enhancement). At McCall’s sentencing hearing, the only contested issue was whether the facts warranted application of Section 3Al.l(b). McCall had embezzled primarily from IRAs, and many of the accountholders he targeted were over seventy years old. One was over ninety. Several were dead. In addition, among the accounts McCall had selected were pass-book accounts, inactive accounts, no-mail accounts, and accounts with bad addresses. Selecting accounts with these characteristics may have seemed to McCall to increase the chances that his activity would go undetected, although embezzlement through unauthorized withdrawals followed by deposits in the embezzler’s savings account is anything but the perfect crime. The district court found that McCall “knew or should have known that the victims he chose were particularly susceptible to the criminal conduct because of a combination of circumstances, including [but not limited to] their age.” Other than age, it was the account characteristics described above that, the court found, made those McCall targeted “particularly susceptible” to his conduct. It noted: These accounts from which he did embezzle ... a number of them were passbook accounts, which means that there was not regular mail, but you had to come in to have entries made in your passbook. And it seems to me logical that those people are less likely than those receiving statements to notice activity. The court drew similar inferences with respect to the other types of accounts McCall targeted. As to the inactive, no-mail, and bad-address accounts, it found that “[McCall] did know [of the significance of these factors], and that is indeed why he singled these accounts out, because he knew that these folks were not going to get mail.... He could infer that this was a safer bet to target....” The district court placed considerable weight on McCall’s position at the bank, noting that “[h]e was an account representative. It strikes me that he would know which were the right accounts to target.” In addition, the Presentence Report, the facts of which the court adopted, indicated that bank representatives had ready access to considerable information on IRA accountholders, and Section 3Al.l(b) expressly permits the attribution of constructive knowledge to defendants. Together with the age of those McCall targeted, the foregoing led the district court to conclude that his victims were “particularly susceptible” to his criminal activity and that he knew or should have known this. It then sentenced him, inter alia, to fifteen months imprisonment — the minimum sentence permissible under the applicable range. DISCUSSION We review a district court’s findings of fact for clear error, and accord deference to its application of the Guidelines to the facts. See 18 U.S.C. § 3742(e); United States v. Borst, 62 F.3d 43, 46 (2d Cir.1995). The deference due “ ‘will depend upon the relationship of the facts to the guidelines standard being applied.’ ” United States v. Stroud, 893 F.2d 504, 506 (2d Cir.1990) (quoting 134 Cong. Rec. H11257 (daily ed. Oct. 21, 1988)). Where the particular determination closely resembles a finding of fact, we apply the clearly erroneous standard. As the inquiry approaches a purely legal determination, however, our scrutiny increases. See United States v. Castagnet, 936 F.2d 57, 59 (2d Cir.1991). Section 3Al.l(b) provides, in pertinent part, that a defendant’s offense level should be increased by two points if he “knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3Al.l(b) (1997). In determining whether this provision applies, “[t]he courts appear to have interpreted ‘susceptible to the criminal conduct’ as emphasizing that a particular victim was less likely to thwart the crime, rather than more likely to suffer harm if the crime is successful.” United States v. Kaye, 23 F.3d 50, 54 (2d Cir.1994); see United States v. O’Neil, 118 F.3d 65, 75 (2d Cir.) (“[F]ocus not on the likelihood or extent of harm to the individual if the crime is successful, but on the extent of the individual’s ability to protect himself from the crime.”), cert. denied sub nom. Saia v. United States, — U.S. -, 118 S.Ct. 728, 139 L.Ed.2d 666 (1998); Borst, 62 F.3d at 46 (quoting Kaye). Some limits on the kinds of conduct that will justify a vulnerable victim enhancement are implied in Application Note 2 to Section 3Al.l(b). It states, inter alia, that the enhancement would not apply to someone who sold fraudulent securities by mail to the general public merely because one of his victims happened to be senile. See U.S.S.G. § 3Al.l(b) (Application Note 2). The securities fraud example is suggestive of two limits courts have generally read into Section 3Al.l(b). The first is that the vulnerability of the victim must bear some nexus to the criminal conduct. See, e.g., United States v. Monostra, 125 F.3d 183, 188-91 (3d Cir.1997) (remanding for nexus inquiry where corporate executive defrauded company whose president was blind). Thus, “[t]he adjustment would apply ... in a robbery where the defendant selected a handicapped victim,” U.S.S.G. § 3Al.l(b) (Application Note 2), but might not apply in a fraud case involving the same physically handicapped person. The second limit suggested by the securities fraud example is that the defendant generally must have singled out the vulnerable victims from a larger class of potential victims. Compare United States v. Stover, 93 F.3d 1379, 1388 (8th Cir.1996) (reversing enhancement in adoption fraud case because defendant targeted anyone willing to pay his fees), and United States v. Wilson, 913 F.2d 136, 138 (4th Cir.1990) (reversing enhancement where defendant mailed fraudulent solicitation letters to randomly selected P.O. boxes), with United States v. Holmes, 60 F.3d 1134, 1137 (4th Cir.1995) (affirming enhancement in fraud case where defendant singled out people with poor credit histories); see also United States v. Singh, 54 F.3d 1182, 1191 (4th Cir.1995) (“[I]n a proper § 3A1.1 enhancement the victim must be more susceptible to abuse from a perpetrator than most other potential victims of the particular offense.”); United States v. Caterino, 957 F.2d 681, 683 (9th Cir.1992) (reading securities fraud example as excluding cases where defendant does not know of victim’s vulnerability).' However, the securities fraud example notwithstanding, Section 3Al.l(b) does not require that the defendant select the victim because of his of her vulnerability — it is sufficient that he knew or should have known of this quality when deciding to go ahead with the crime. See United States v. Gill, 99 F.3d 484, 488 (1st Cir.1996) (noting 1995 amendment to Section 3A1.1 eliminating “previously required element of targeting motivation”). By contrast, a third limit, imposed by courts, is that broad generalizations about victims based upon their membership in a class are disfavored where a very substantial portion of the class is not in fact particularly vulnerable to the crime in question. In such cases, courts have required that the enhancement be based on individualized findings as to the vulnerability of particular victims. See, e.g., United States v. Fosher, 124 F.3d 52, 56 (1st Cir.1997) (remanding for finding as to whether 62-year-old victim of home invasion was unusually vulnerable). It is the concern over the lack of individualized findings that has given rise to the proposition that age alone is insufficient to support the enhancement. See, e.g., O’Neil, 118 F.3d at 75; United States v. Lee, 973 F.2d 832, 835 (10th Cir.1992) (reversing vulnerability finding based solely on victims’"age). Nevertheless, although there is skepticism of generalized assumptions about a victim’s vulnerability based upon that person’s membership in a class, many cases have upheld vulnerable victim enhancements based on group generalizations. See, e.g., United States v. Echevarria, 33 F.3d 175, 180-81 (2d Cir.1994) (medical patients); United States v. Patasnik, 89 F.3d 63, 72 (2d Cir.1996) (people with poor credit histories). Indeed, Application Note 2 makes clear that class membership alone may be sufficient to support the enhancement by stating that someone who “marketed an ineffective cancer cure” would warrant the enhancement. In such cases, however, the criminal shapes the nature of the crime—fraudulent cancer cure rather than fraudulent land sales—to target a class of victims that are virtually all particularly vulnerable to that crime. In the present case, the district court concluded that McCall targeted account-holders that he knew to be less likely than most to detect his criminal conduct. In light of McCall’s position at the bank and because constructive knowledge suffices under Section 3Al.l(b), this conclusion is entirely reasonable. McCall’s contention, however, is that generalized information about accounts cannot be a basis for a vulnerability finding with respect to particular accountholders. We disagree with so sweeping a view of vulnerability but remand to the district court because of two concerns with its application of the vulnerable victim enhancement. Our first concern is that the district court may have applied an incorrect legal test. It seemed to state at sentencing that only someone who is more susceptible to a crime than most victims of that crime meets the particularly vulnerable standard. In particular, it noted that holders of passbook accounts are “less likely than those receiving statements to notice activity” and that no-mail and bad-address accounts were “a safer bet to target.” However, a more vulnerable-than-most test varies considerably from a particularly vulnerable test. See Stover, 93 F.3d at 1386 (“courts have consistently refused to find a class of victims to be particularly susceptible ... simply because they were statistically more likely to fall prey to the defendant’s crime.’ ” (quoting United States v. Castellanos, 81 F.3d 108, 110-11 (9th Cir.1996))). To hold otherwise would be to read the term “particularly” out of Section 3Al.l(b). Moreover, the more-vulnerable-than-most test would lead to an enhancement whenever any member of the most vulnerable 49% + of the potential class of victims is selected by the criminal but not when a member of the 50%+ less vulnerable is targeted. This result is in some cases overinclusive, in others underinclusive. Some crimes—armored car robberies—are unlikely to involve a particularly vulnerable victim, although some armored car companies may be more vulnerable than others. Other crimes—fraudulent cancer cures—may be directed at a class of victims who are virtually all particularly vulnerable. The correct test calls for an examination of the individual victims’ ability to avoid the crime rather than their vulnerability relative to other potential victims of the same crime. The enhancement, in short, is to be applied where an extra measure of deterrence and punishment is necessary because the defendant knew of a victim’s substantial inability to avoid the crime. See Stover, 93 F.3d at 1386-87 (“ [T]he victims to whom § 3A1.1 applies are those who are in need of greater societal protection.... They are the persons who, when targeted by a defendant, render [his] conduct more criminally .depraved.” (quoting Castellanos, 81 F.3d at 110-11)). Our second concern is with the facts relied upon to apply the vulnerable victim enhancement to appellant. In the circumstances of this case, the bank rather than the accountholder is liable for an embezzlement. However, accountholders are nevertheless victims of such an embezzlement. They are put at risk and will at the least suffer substantial inconvenience. Such an accountholder may be a particularly vulnerable victim where there is a substantial chance that he or she will never discover or realize that the account has been depleted. Such an accountholder may be particularly vulnerable where the nature of the embezzlement renders it difficult for the accountholder to establish that the withdrawals were unauthorized, causing at the best inconvenience and anxiety and at the worst a temporary need for, or loss of, funds. In the present case, the district court relied upon, without further particularized inquiry, the ages of some accountholders and other characteristics of the accounts McCall targeted. In using this generalized analysis, the district court appears to have concluded that each of the account-holders in question was a particularly vul-nex-able victim because every account featured at least one of these characteristics, e.g., elderly accountholders, pass-book ac-countholders, etc. However, none of these characteristics alone demonstrates a particular vulnerability to embezzlement. For example, elderly people can be meticulous about their finances. Cf. Lee, 973 F.2d at 835 (simple fact that victims were elderly not sufficient to support Section 3A1.1). Even the fact that someone has a passbook account is not a sufficient basis by itself for the enhancement, because the accountholder may in fact keep track of the account. Likewise, the fact that an accountholder is deceased, without more, does not render his or her estate particularly vulnerable to this sort of embezzlement. It may well be the case that one or more • of McCall’s intended victims was indeed particularly susceptible to his conduct because of age and other factors. Cf. United States v. Smith, 133 F.3d 737, 749 (10th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2306, 141 L.Ed.2d 165 (1998) (“A single vulnerable victim is sufficient.”). However, the district court did not detail the combination of characteristics of individual accounts — for example, a passbook account in the name of a dead person in which there has been no activity for several years — that rendered individual ac-countholders particularly vulnerable. We therefore remand to the district court to clarify the record as to which accountholders were particularly vulnerable and what combination of factors made them so. The district court has discretion to allow supplementation of the record as it deems appropriate. It may also, of course, entertain any application for bail during pendency of this appeal. The mandate shall issue forthwith and any party seeking appellate review of the decision on remand shall so inform the clerk of this court within 30 days of that decision. Jurisdiction will then be automatically restored to this court. See United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994). After jurisdiction is restored, the clerk shall set an expedited schedule for letter briefs, and the matter will then be heard by this panel. We remand for further proceedings consistent with this opinion. . Pass-book accounts are ones for which the bank does not send statements to the account-holder. No-mail accounts are ones for which the bank sends statements to the branch of the bank where the account is held, not to the accountholder.

EASTERBROOK, Circuit Judge. Donna Branion died on December 22, 1967. She was strangled and shot at least four times. She was not molested; there were no signs of forced entry into the apartment, from which nothing was stolen. This led the police to doubt that a stranger was responsible. A jury concluded that Donna’s husband, John M. Branion, Jr., did the deed. The evidence was circumstantial, but what circumstances! • Branion called the police after finding his wife sprawled in a pool of blood. Although a physician, he did nothing to investigate her condition or assist her. He told the police that he knew from the lividity of Donna’s legs that she was dead. A pathologist testified that Donna Branion’s legs did not display lividity. • Ballistics experts determined, from the rifling of the slugs and marks on the casings, that the murder weapon was a 9mm, .38 caliber Walther PPK, a rare gun. John Branion, a gun collector, owned a 9mm, .38 caliber Walther PPK. When the police asked whether Branion had a 9mm weapon, he said yes and gave the police a Luger. Later the police asked whether he had a .38 caliber weapon; he said yes, one, and turned over a Hi Standard pistol. He did not mention his Walther PPK, which was never found — yet could not have been stolen by an intruder on December 22, for the family’s weapons cabinet was locked when the police arrived. • The cabinet contained a clip, target, and brochure for Branion’s Walther PPK together with two boxes of .38 caliber ammunition. One box was full. The other was short four shells. Four shell casings were found near Donna Branion’s body. • Branion had a mistress, a nurse at the hospital where he worked, and the Branion home was not a model of domestic tranquility. Branion married his mistress shortly after his wife’s death. The defense denied some of this and tried to cast the rest in a better light, but the jury was entitled to believe the prosecution’s evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The death and trial attracted attention, common for family murders among the well-to-do and intensified by the nature of the defense in this one: impossibility. Dr. Branion held a position of responsibility at the Ida Mae Scott Hospital, in the Hyde Park district of Chicago. The defense was that he had been at the Hospital attending patients until 11:30 a.m. and that, on the way home, he made two stops — one to pick up his son Joby at a private school, the other to meet a friend with whom the Bran-ions planned to lunch. The police logged the call informing them of the murder at 11:57 a.m. There was not enough time to drive from the Hospital to his home, with two stops, and to kill his wife before calling the police, Branion insists — especially because Donna was strangled as well as shot, and the bruises on her neck took at least 15 minutes to form. A claim of impossibility is not the only unusual feature of this case. Both sides of the family were prominent. Dr. Branion marched with Dr. Martin Luther King, Jr., in the 1960s. His father was a well-known attorney and the deputy chief public defender of Chicago. Donna Brown Bran-ion’s father was a wealthy banker, and other members of the family have been successful in other fields. Reginald Hol-zer, who presided over the trial, may have tried to induce Branion’s many friends to pay him off in exchange for a judgment notwithstanding the verdict — a disposition that in Illinois is not open to appellate review. Holzer has since been convicted of extortion in many other cases. See United States v. Holzer, 816 F.2d 304 (7th Cir.), vacated, — U.S. -, 108 S.Ct. 53, 98 L.Ed.2d 18 (1987), after remand, 840 F.2d 1343 (7th Cir.), cert. denied, — U.S. -, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988). On getting wind that Holzer had dictated to the court reporter an opinion absolving Branion, the prosecutor, Patrick A. Tuite— now a prominent criminal defense attorney —paid a private call on the judge. During this ex parte conversation Tuite insisted that Judge Holzer let the case proceed through appellate channels, but he left thinking that Branion would prevail. Holzer later called Tuite at home, insisting that Tuite move for a week’s postpone ment of the impending ruling on Branion’s motion for a new trial. Tuite complied, and Holzer put on a little show, dressing down the prosecutor for begging for more time and cutting the extension back to two days. The theatrics (and, perhaps, the last effort to extract cash from Branion’s friends) over, Holzer denied the motion on condition that Branion remain free pending appeal. The Supreme Court of Illinois affirmed the conviction, People v. Branion, 47 Ill.2d 70, 265 N.E.2d 1 (1970), cert. denied, 403 U.S. 907, 91 S.Ct. 2213, 29 L.Ed.2d 683 (1971). When the conviction became final Bran-ion neither reported to prison nor sought collateral review in state court. Instead he fled to Africa where, after a short stay in the Sudan, he journeyed to Uganda and became Idi Amin’s personal physician during 1972-79. New York Times, Oct. 15, 1983, § 1 p. 6 col. 2; Associated Press dispatch October 14, 1983. Escaping the ravages of Uganda’s civil wars and invasions, Branion was unceremoniously put on a plane by a new regime and shipped back to the United States in October 1983. (Uganda has no extradition treaty with the United States.) Since his sudden return Branion has been serving his sentence of 20-30 years’ imprisonment. In 1986 he filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254. The state has not argued that Branion’s flight and the consequent delay disqualifies him under Rule 9(a) of the Rules for Section 2254 cases. I We must first address a difficulty in our (and the district court’s) jurisdiction. The case was assigned to Judge Getzendanner, who issued three opinions. The first, reported at 664 F.Supp. 1149 (N.D.Ill.1987), held that Branion had exhausted all state remedies — exhausted them in the sense that his flight to Uganda coupled with his neglect to preserve points on direct appeal would lead Illinois to reject any effort to seek relief now. The second, 1987 U.S. Dist. LEXIS 8767 [available on WEST-LAW, 1987 WL 27], rejected two of Bran-ion’s four claims on the merits and held the others barred by the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Judgment was entered in the state’s favor on August 27, 1987. Branion filed a timely motion for reconsideration under Fed.R.Civ.P. 59. Judge Getzendanner wrote a third opinion declining to reopen the subject and adding some reasons why the state was entitled to prevail. The order denying the Rule 59 motion was filed on September 22, 1987. Eight days later Judge Getzendanner resigned from the bench. On October 20, 1987, Branion filed a notice of appeal from this decision. The clerk of the district court neglected to forward it to us until December 14. Meanwhile, on October 15, Branion had filed a second post-judgment motion, this time under Rule 52(b). The motion was assigned to Judge Plunkett, who neither knew about the notice of appeal nor recognized that this was a successive post-judgment motion. Judge Plunkett took briefs and evidence, heard argument, and wrote an opinion [available on WESTLAW, 1987 WL 20414], 1987 U.S. Dist. LEXIS 10899, denying Branion’s petition for the third time. Judge Plunkett entered a judgment on November 20, and Branion filed a second notice of appeal on November 25. This prompted the clerk’s office to transmit the first notice; the two were assigned sequential numbers in this court. The appeal filed on October 20, No. 87-3052, transferred the case to us. Nothing that happened after that in the district court matters. Judge Plunkett would have lacked jurisdiction even had there been no appeal in October, for the losing party may file post-judgment motions under Rules 52 and 59 only within ten days. See Fed.R. Civ.P. 6(b). A district court may not act on an untimely motion. Bailey v. Sharp, 782 F.2d 1366 (7th Cir.1986). If a judge alters her judgment in response to the first motion, the party aggrieved by the change may file a motion directed to the difference. Charles v. Daley, 799 F.2d 343, 347- 48 (7th Cir.1986). But Judge Getzendanner reaffirmed rather than revised her judgment. This Rule 52 motion would have been untimely even if Judge Getzendanner had changed her disposition, for it was filed 23 days after the judgment became final, and the Rule allows only ten. Since weekends and holidays are excluded in the computation, Fed.R.App.P. 26(a), Branion would have had until October 6, 1987, to serve any further motion that might have been in order; he took until October 15. At oral argument Branion’s lawyer contended that the motion was served within ten days after Branion received Judge Get-zendanner’s order, but this ignores the language of Rule 52(b): “Upon motion of a party i,.ot later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly.” Branion is represented by a wealth of talent, which we would not have expected to have had so much difficulty with the civil rules. The case has been in this court since October 20, 1987, and Judge Plunkett had no authority to act. We vacate the opinion and judgment of November 20 and dismiss appeal No. 87-3053 for want of jurisdiction, because it was filed more than 30 days after the judgment became final on September 22. See Browder v. Director, Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). One more procedural matter. The appendix Branion filed in this court contains a good deal of material that was not before the district court. An entire section of Branion’s brief is devoted to arguments based on this material, which includes an affidavit from Branion telling his side of the story — for the first time in 20 years, since he did not testify at trial or in the district court — as well as affidavits from other witnesses, a report of a physician describing the nature of the wounds in Donna Branion's body in an effort to show that more than four shots must have been fired, notes from an interview with the prosecutor reflecting his assessment of the evidence and his disagreement with Judge Getzendanner’s analysis of the facts, and an affidavit from his current counsel narrating his own investigation. The state has filed a motion to strike this “evidence”. See Heirens v. Mizell, 729 F.2d 449, 455-56 (7th Cir.1984); United States v. Burke, 781 F.2d 1234, 1245-46 (7th Cir.1985). Branion replies that he is entitled to draw exculpatory information to the court’s attention at any time in light of Kuhlmann v. Wilson, 477 U.S. 436, 452-55, 106 S.Ct. 2616, 2626-27, 91 L.Ed.2d 364 (1986), which holds that in order to succeed on a successive petition for a writ of habeas corpus, the prisoner must make a colorable showing of innocence. Cf. Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970). Circuit Rule 10, like Fed.R.App.P. 10(a), excludes from the appendix any materials that were not on file in the district court, because “[otherwise they deprive the opposing party of an opportunity to comment on them and the district judge of an opportunity to evaluate their significance.” Henn v. National Geographic Society, 819 F.2d 824, 831 (7th Cir.1987). Branion replies: Rule [10] is expansive in its terms and designed to facilitate the appellate process. There is certainly nothing in Rule [10] that says an exhibit included in an Appendix pursuant to a Supreme Court directive would violate Rule [10]. The requirement of Kuhlmann is thus transformed into a “directive” that the petitioner file untimely, non-record materials. This passage reflects a set of mind, evident in Branion’s treatment of the jurisdictional questions as well: when innocence is at stake, no procedural rules should get in the way. We do not doubt the value of protecting the innocent. That is the principal reason why we have an elaborate criminal procedure rather than kangaroo courts. But nothing in Kuhlmann, which is designed to limit the scope of federal collateral relief, is either a license or a requirement to ignore procedures the judicial system has found important to the truth-seeking process. If we were sure someone is innocent, perhaps we should dispense with procedural folderol; if we were sure of guilt, a trial also would be a waste of time. Judges, however, are professional sceptics. If we entertain, as we ought, doubt about the facts, procedures are invaluable. Bran-ion’s lawyers may be sure he is innocent, but their confidence is not infectious. Materials significant to Branion’s guilt or in-' nocence should be presented to the district court, there to be tested in the usual adversarial ways. They may not be stored- up for an appeal or generated (as some of these documents were) expressly for the appellate panel; this court is in no position to cope with factual disputes. If Branion wanted to refer to these materials, he should have filed them in timely fashion in the district court; if that were impossible, he could have asked for enlargement of the record under Rule 10 or requested this court to remand the case to the district judge for further proceedings. Instead of doing either, he tried to smuggle the 'materials into the appendix and brief. That is not acceptable advocacy. We grant the state’s motion and strike exhibits K through Q of Branion’s appendix, and Argument III of Branion’s brief. Because exhibit J of the appendix was filed with Judge Plunkett, we strike it too. No document filed after mid-September 1987 is before us. II We start with Branion’s contention that rational jurors, taking the evidence in the light most favorable to the state, could not have found beyond a reasonable doubt that he murdered his wife. Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791. This question was pursued vigorously in staté court. The Supreme Court of Illinois held that the jury rationally could have concluded that Branion killed his wife with four bullets from his Walther PPK, which he disposed of before calling the police. Branion failed to investigate his wife’s prone body because, having murdered her, he knew her condition; and his lie to the police about owning only one .38 caliber weapon was as good as a confession. With respect to the defense that traveling the narrow, icy streets of Hyde Park on December 22 (it was about 10° F. and snowing lightly) would have taken too long, the court replied that the evidence conflicted: Branion told the police that he left the Hospital at 11:30 a.m. and picked up his son Joby at 11:35. Joyce Kelly, a teacher, said that Branion appeared between 11:45 and 11:50 to fetch his boy. 47 Ill.2d at 72, 265 N.E.2d 1. The implication: Branion went from the Hospital to his apartment, killed his wife and resumed his journey, showing up at the school as late as 11:50. He then stopped to see Maxine Brown, with whom he had made a luncheon date between 10:00 and 11:00 p.m. on December 21; Brown cancelled the engagement. Branion returned home and called the police. The jury would have been entitled to infer— from the timing of the request and the fact that this was the first time he had asked her to lunch — that Branion wanted Brown to be present as a witness to his “discovery” of the body. Judge Getzendanner had a different theory: Branion left the Hospital before 11:30 and killed his wife (a neighbor reported hearing a commotion in the Branion apartment before 11:30), returned to the Hospital to establish his presence away from the scene of the crime, and only then picked up his son. Branion insists that these explanations are physically impossible. He could not have left the Hospital before 11:30 because time notations on patients’ records show that he met 13 spaced through the morning, the last at 11:28. On the way out he saw an emergency patient, consuming a few minutes. Branion contends that he could not have reached his car before 11:34 a.m. From there it would have taken four to six minutes to drive to his son’s nursery-school. Police officers repeatedly drove in 1968 the route Branion says he took, never exceeding the speed limit; they logged times between six and twelve minutes for the circuit, recording 4 to 5VÍ2 minutes for the stretch from the Hospital at 5027 South Prairie Street to the school at 5470 South Kenwood Avenue. After finding a parking place, Branion could not have entered the school until 11:40. Now adopting Kelly’s testimony that he picked up Joby between 11:45 and 11:50, Branion submits that he left the school at about 11:45. From the school to 1369 East 53d Street, where Maxine Brown was employed, would have taken 1-2 minutes. The conversation with Brown, at which she begged off from the luncheon date, added another minute or two. At 11:49 Branion set off for home at 5054 South Woodlawn. He could not have arrived before 11:51; parking would have taken additional time. There were only six minutes left before the call to the police at ll:57-not enough, Branion says, to kill his wife, clean his hands, and dispose of the gun. Not when part of that time was spent yelling to the next-door neighbor. Especially not when Donna Branion was strangled as well as shot. Her neck was bruised; she had been garrotted with the cord from her iron. The pressure was not great enough to break any bones. Defense counsel asked the pathologist: “Would you tell me how long would be a long period of time to make a bruise like that if the pressure weren’t great?”, to which the pathologist replied: “I would say fifteen minutes to a half hour.” Neither side pursued the matter further at trial. Branion now insists that the pathologist’s testimony means that pressure was applied to his wife’s neck continuously for 15-30 minutes, which was impossible given the time sequence; the state believes that the testimony means only that a bruise would have taken 15-30 minutes to form after the application of pressure, and that the pathologist was in any event throwing off a rough estimate rather than giving the physical limits. Time can be squeezed out of Branion’s account quite easily. Suppose the clock at the Hospital was a few minutes fast (digital watches were rare in 1967) — or suppose Dr. Branion entered the time on patients’ records just a little inaccurately. He could have started his journey at 11:30 if not a few minutes earlier. Suppose he was not punctilious about finding legal parking spaces. Then the time for the whole trip is only a minute or two longer than the minimum driving time: at the legal speed, six minutes. Add one minute to grab Joby and one minute to meet Maxine Brown and you still have only 8 minutes. If Branion started a little before 11:30, there is enough time left over to kill someone — even to detour home first, as the prosecution contended. As for the bruises: Branion, a physician, knew how to inflict this kind of injury in minimum time. The jury could have concluded that Branion strangled his wife with a cord briefly at 11:40 and then shot her, and that bruises continued forming until the police arrived at noon. If Branion killed his wife, he planned to kill her; the assumption of planning helps to evaluate the time sequence. A physician planning murder would have inflicted a kind of injury that looks like it took longer to cause than it did. He would have fudged the time records at the Hospital, exceeded the speed limit and parked illegally to save minutes; he would have whisked Joby out of school and barely nodded at Maxine Brown. He would not have come to a full stop at stop signs. The entire sequence can be thrown off on the assumption of planning, an assumption the jury was entitled to indulge. Branion disagrees, saying that any alteration of the time sequence would require the jury to disbelieve the nurse who said that she saw Branion at the Hospital after 11:30 and the teacher who said she saw Branion at the school between 11:45 and 11:50. The jury did not need to question the' teacher’s times if Branion killed his wife earlier. At all events, the jury was entitled to disbelieve anyone it pleased. Most persons’ sense of time is not so acute that they can distinguish 11:25 a.m. from 11:35 a.m. with perfect accuracy a year after the event — especially when, at 11:25 a.m. on December 22, 1967, the nurse had no reason to note the time precisely. Permitting such disbelief would make a shambles of Jackson, Branion insists, because it would relieve the state of its obligation to prove the crime. Through selective disbelief, the jury could create the state’s case out of thin air. Not so. A trier of fact may disbelieve or reject any evidence. Disbelief is not evidence of the opposite of the thing discredited, however. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986); LHLC Corp. v. Cluett, Peabody & Co., 842 F.2d 928, 934-36 (7th Cir.1988). A jury that disbelieved everything would be compelled to acquit the defendant. Selec-five disbelief, however, is an ordinary incident of trial; a jury could credit the objective evidence (the ballistics and the proof that Branion owned a Walther PPK) while doubting the ability of witnesses to pin Branion’s movements down to the minute. Even if this were so, Branion insists, it would still be exceedingly improbable that he could have killed his spouse — so unlikely that no sane person could find guilt beyond a reasonable doubt. Branion starts from the ranges of time offered for driving (6 to 12 minutes) and forming bruises (15 to 30 minutes) and submits that the likely times were in the middle of those ranges. A time at the low end of each range — which Bran-ion thinks necessary to make the crime possible — was correspondingly unlikely: a probability of “less than 0.01” in each case, Branion says. The probability that the low end of each range would occur back-to-back is 0.01 x 0.01 = 0.0001. Proof beyond a reasonable doubt means a probability much greater than the 0.51 more-likely-than-not standard; a probability of 0.0001 that the accused did it is so far away from “beyond a reasonable doubt” that the federal court must issue the writ. We attach, as an appendix, Branion’s full argument (omitting footnotes). We shall not become mired in the debate, set off by People v. Collins, 68 Cal.2d 319, 68 Cal.Rptr. 497, 438 P.2d 33 (1968), about the proper use of statistical inference in criminal litigation. Statistical methods, properly employed, have substantial value. Much of the evidence we think of as most reliable is just a compendium of statistical inferences. Take fingerprints. The first serious analysis of fingerprints was conducted by Sir Francis Galton, one of the pioneering statisticians, and his demonstration that fingerprints are unique depends entirely on statistical methods. See Gal-ton, Finger Prints (1892). See also Stephen M. Stigler, The History of Statistics: The Measurement of Uncertainty before 1900 297-98 (1986). Proof based on genetic markers (critical in rape and paternity litigation) is useful though altogether statistical, United States v. Green, 680 F.2d 520, 523 (7th Cir.1982). So too evidence that, for example, the defendant's hair matched hair found at the scene of the crime. United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 517-19 (7th Cir.1982). None of these techniques leads to inaccurate verdicts or calls into question the ability of the jury to make an independent decision. Nothing about the nature of litigation in general, or the criminal process in particular, makes anathema of additional information, whether or not that knowledge has numbers attached. After all, even eyewitnesses are testifying only to probabilities (though they obscure the methods by which they generate those probabilities)— often rather lower probabilities than statistical work insists on. The lesson of Collins is not that statistical methods are suspect but that people must be sure of what they are looking for, and how they can prove it, before they start fooling with algebra. The crime had been committed by a blonde woman with a ponytail and a bearded black man with a mustache, driving a yellow car. The defendants had these characteristics. An “expert” determined the probability that any particular person is black, blonde, bearded, etc., and multiplied these, coming up with the probability of one in 12 million that any randomly selected persons would have matched the characteristics of the perpetrators. That, the prosecution maintained, showed that the defendants were the culprits: how improbable that there should be two such couples. But all these figures showed is that the defendants had not been randomly selected! The state scrounged up two persons who matched the description of the offenders; the expert “proved” that if the police had arrested people at random they would not have nabbed two such persons, but not that the persons actually arrested had anything to do with the offense. The figures did not even show that such couples are scarce; every person has some distinguishing, uncommon characteristics, and the likelihood of their occurrence can be multiplied to yield some very small number. Any two numbers less than one, when multiplied, give a still smaller number. So it is easy to provide the kind of “proof” in Collins for every person and crime, without doing anything to help figure out whether the state caught the offender. This error should put us in mind of an example suggested by Condorcet: a lottery may have a million possible number combinations, so when the proprietor of the lottery announces that the winning combination is such-and-such, the probability that this is indeed the winning combination is one in a million. Conclusion: the proprietor is lying. See Isaac Todhunter, A History of the Mathematical Theory of Probability from the Time of Pascal to That of Laplace 400 (1865). Every event, if specified in detail, is extremely improbable; indeed, with enough detail it is unique in the history of the universe. It is always possible to take some probabilities, small to start with, and multiply them for effect. In order to avoid the errors produced by mindless multiplication, the statistician must specify with care what we should expect to find if the event in which we are interested has occurred, and what we should expect to find if it has not. Next we must develop criteria that might differentiate the one from the other. Only then can we begin to assess probabilities. This can be a daunting task. See Mister v. Illinois Central Gulf R.R., 832 F.2d 1427 (7th Cir.1987). It is not, however, an impossible task. Branion’s lawyers did not attempt it. They simply multiplied two small numbers to get a smaller one, without describing why these were plausible numbers or why we ought to multiply them. Imagine a defendant seeking a writ of habeas corpus with this argument: “Twenty witnesses testified for me, and although the probability that any one of them was lying may have been 0.9, the probability that every one of them was lying was (0.9)20, or 0.12, so I must be innocent.” Such a maneuver, like the one in Collins, assumes that the events are independent, when they are not. This is not precisely the error committed here, but it is close. The first task is to specify the minimum time Branion needed, not the minimum possible time. The jury could have found that 30 minutes lapsed between Branion’s leaving the Hospital and his call to the police. We therefore should like to know the probability that the combination of travel and murder times came to 30 minutes or less; Branion has offered only his view of the probability that the time came to 21 minutes or less. He produced even this figure by a method that is proper only if the probability of the 6-min-ute drive and the 15-minute bruise are independent events. Yet on the state’s hypothesis of a planned murder, they are anything but independent. That’s not all. Branion assumed that the distribution of driving and bruise-forming times is Gaussian (that is, characterized by a normal bell-shaped curve centered on the mean of the distribution). He derived the probability of a six-minute drive beginning with the calculation of a mean of 9 minutes, from the average of the extreme times (6 and 12). He then added the assumption that the standard deviation is one minute, leading to the conclusion that a travel time of six minutes, three standard deviations from the mean, will happen less than one time in a hundred. Where did this mean and standard deviation come from? The range of 6 to 12 minutes is from a series of six trials in 1968. We know that a driving time of 6 minutes was achieved at least once in six runs, not (as Branion’s calculation implies) once in a hundred. For all this record reveals, the six trials came out with times of 6, 6, 7, 7, 8, and 12 minutes. A calculation based on a mean driving time of nine minutes, with a standard deviation of one minute, would produce a bizarre conclusion. Nothing suggests a Gaussian distribution or the absence of skewness. As for the pathologist’s range of 15 to 30 minutes for bruise formation: this was a number from the air, and we have no idea what the mean time or standard deviation might be. That’s still not all. Even if the time sequences are independent, even if we are interested in the probability that the driving plus choking time is 21 minutes or less, even if the distributions are Gaussian, the probability is very sensitive to the assumed standard deviation. On Branion’s assumptions, the probability is 0.1% rather than 0.01% as Branion believes; on more plausible assumptions, the probability is 10%. The proof appears in the margin. Since this probability reflects a series of assumptions generally favorable to Branion (though implausible individually and collectively), the statistical argument that the jury was compelled to find him innocent collapses. It would be nonsense to pretend that this is a simple case or that Branion’s guilt is obvious. There is no direct evidence of guilt — no powder residue on Branion’s hands or blood under his fingernails, for example. Doubtless a physician knows how to clean his hands thoroughly and quickly, yet the time is tight even on the state’s theory. The two district judges who looked at this record came up with different, and inconsistent, theories of how and when Branion committed the crime, if he did. Prosecutor Tuite seems to believe today that Branion hired an assassin and may not have fired the fatal shots. Bran-ion submits that more than four bullets were used, which, if true, undercuts one of the inferences used to convict him. Yet even “direct” evidence does not ensure guilt; eyewitness testimony is often unreliable. See Elizabeth F. Loftus, Eyewitness Testimony: Psychological Research and Legal Thought, 3 Crime and Justice: An Annual Review of Research 105 (1981). A federal court reviewing the record of a state trial cannot ensure accurate verdicts; no human agency can do that, and a tribunal reviewing a cold record 20 years after the events is likely to err more frequently than a jury that had a chance to listen to contemporaneous evidence. All we can ask —under Jackson all we may ask — is whether, assuming the jury resolved all disputes in the state’s favor and drew all inferences from that evidence, it would have been rational to convict. Not whether we would convict, but whether thoughtful people could convict. Careful, rational jurors could have believed that the evidence about the Walther PPK and Branion’s failure to approach his wife’s body, coupled with his lie to the police about the lividity of his wife’s legs, swamped any doubts about the time sequence. The evidence in this case is sufficient under Jackson. Ill Prosecutor Tuite implored Judge Holzer, in an ex parte conversation, to en ter judgment on the jury’s verdict, so that the final decision about the sufficiency of the evidence would be made by the Supreme Court of Illinois. The judge ultimately agreed — whether because he thought this the right course or because he was foiled in extorting money from Bran-ion’s friends we may never know. Tuite allows that he suspects, and one of Bran-ion’s friends insists, that money changed hands. Ex parte contacts of the sort to which Tuite admits are forbidden. We were dismayed to learn that an experienced prosecutor, now a respected private attorney, would drop in on a judge to hold a private conversation about the merits of a case— especially when, the prosecutor believed, he had received confidential information about the judge’s impending decision. We assume, as other courts have held, that such lobbying violates the Due Process Clause of the fourteenth amendment. Jones v. Hess, 681 F.2d 688, 692 (10th Cir.1982); Haller v. Robbins, 409 F.2d 857, 859-61 (1st Cir.1969). Cf. United States v. Napue, 834 F.2d 1311, 1316 (7th Cir.1987); United States v. Solomon, 422 F.2d 1110, 1119-21 (7th Cir.1970). Condemning ex parte contacts and issuing a writ of habeas corpus are different matters, however. No objection to this exchange has been presented to the state courts. Judge Get-zendanner concluded, and the state effectively concedes, that state courts are closed to Branion on this (and every other) subject, so that he has no state remedies to exhaust. She also concluded that Branion had not raised this matter in a timely fashion in state court, so that it may be presented in federal court only if Branion can establish both “cause” and “prejudice” under Wainwright v. Sykes. She assumed that Branion could establish cause but held that he had not established prejudice. We agree with both the approach and the conclusion. Whether Branion could establish “cause” is a close question, turning on facts that have not been fully aired. He says that, not until 1986, when Tuite made out an affidavit, was he aware of the ex parte contacts or the judge’s attempt at extortion. An event unknown and unknowable because- of the state’s machinations is “cause”. Amadeo v. Zant, — U.S. -, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). But an affidavit filed by one of Branion’s friends says that Nelson Brown, a member of the defense camp, knew in 1968 that Holzer wanted money and paid him $10,-000; and that Holzer begged off from acquitting Branion (releasing him instead on trivial bond, with no travel restrictions) because the prosecutor had found out about the plan. See note 8 above. If that is so, then Branion either knew or readily could have found out in 1968 just what had spooked Judge Holzer, and the subject could have been raised on direct appeal to the Supreme Court of Illinois. If this is the best characterization of what happened, then Branion has not established cause. There are no affidavits about what Bran-ion’s friends told him in 1968; Branion did not request an evidentiary hearing on the subject in the district court; when the sub ject came up at oral argument Branion’s counsel insisted that the record contains all the information he wishes to have before the court. Perhaps, then, we should infer that Branion did not pursue in 1968 the investigation that might have led to the Holzer-Tuite meeting and phone call because he could not have presented it to the Supreme Court of Illinois without opening up the subject of paying off a judge— which does not always cast in the best light a defendant who is protesting innocence. The district judge did not decide whether Branion had established “cause”, in light of her conclusion that he had not established “prejudice”. There are at least two senses in which Branion may have suffered prejudice in fact. He may have lost an important right guaranteed by state law — the right to have the trial judge act as “thirteenth juror” and substitute his judgment for that of the jury, a decision that is not reviewable in Illinois. Under Illinois law, the judge must treat fairly with post-trial motions. People v. Yarbrough, 93 Ill.2d 421, 67 Ill.Dec. 257, 444 N.E.2d 493 (1982). And he may have lost the opportunity to receive an unjust, capricious, perhaps even paid-for acquittal. Neither is prejudice within the meaning of Sykes, a term the Court interpreted in United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1595, 71 L.Ed.2d 816 (1982) (emphasis in original), as requiring a demonstration “not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions.” Neither of the two kinds of injury Branion may have suffered meets this test. The entitlement to have the judge act as an unreviewable thirteenth juror is not a constitutional right at all; in federal courts, district judges may set aside a jury’s verdict of guilt only if the evidence is legally insufficient, and acquittals notwithstanding the verdict may be reviewed on appeal, United States v. Scott, 437 U.S. 82, 91 & n. 7, 98 S.Ct. 2187, 2194 & n. 7, 57 L.Ed.2d 65 (1978); United States v. Allison, 555 F.2d 1385, 1386-87 (7th Cir.1977). If the ex parte exchange deprived Branion of an opportunity to have the judge play thirteenth juror, it deprived him only of an entitlement under state law, which is not sufficient to support a writ of habeas corpus. Jones v. Thieret, 846 F.2d 457, 459-60 (7th Cir.1988) (collecting cases); Watson v. Camp, 848 F.2d 89 (7th Cir.1988). The possibility that the meeting swindled Branion out of a corrupt acquittal may show that Judge Holzer did not deliver what was paid for, but it hardly establishes constitutional prejudice. Cf. Segura v. United States, 468 U.S. 796, 815-16, 104 S.Ct. 3380, 3390-91, 82 L.Ed.2d 599 (1984). Did the ex parte contact work to Bran-ion’s “actual and substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions”? No. It did not affect the trial at all. Branion had a fair trial, after which the jury rendered its verdict of guilt. He did not lose any trial opportunity — and he did not lose the opportunity to test the state’s evidence on appeal. The ex parte conversation induced Judge Holzer to send the case on its way through appellate channels — something he could have done summarily after the trial without violating any of Branion’s rights. Seven impartial arbiters reviewed the evidence after a full appellate presentation. Six justices of the Supreme Court of Illinois concluded that the evidence was sufficient; the seventh dissented on unrelated grounds. Unless every violation of the rules is “prejudice” — which cannot be right, for that would be tantamount to abolishing the prejudice component of Ny/ces-Branion has not met his burden. IV Branion presents two more contentions: That his representation at trial was constitutionally deficient, and that the prosecutor’s closing argument implied a comment on his decision not to testify in his own defense. The latter is insubstantial. The prosecutor said, during a lengthy argument: He [Branion] would have you believe, through hearsay, not through testimony on the witness stand under oath and subject to cross examination, but through hearsay, through Nelson Brown, said that he told him that night that he was missing a PPK. This was a legitimate comment on the weakness of Branion’s defense. Hearsay is not the equivalent of direct testimony. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), forbids asking the jury to draw an inference of guilt from the exercise of the privilege against compulsory self-incrimination, but the prosecutor did not ask the jury to draw such an inference. See generally United States v. Robinson, — U.S. -, 108 S.Ct. 864, 868-69, 99 L.Ed.2d 23 (1988); United States v. Sblendorio, 830 F.2d 1382, 1391-92 (7th Cir.1987). Whether counsel was deficient is a harder question. Such contentions require a thorough appreciation of the opportunities open to counsel, and the use made of them. Judge Getzendanner held that Bran-ion had not shown “cause” for his failure to present this subject to state court. Defects in representation usually are presented immediately following the conclusion of the direct appeal. (Since the supposedly deficient counsel may be handling that appeal, he cannot be expected to expose his own shortfalls—even if he appreciates them.) Branion fled to Uganda instead of pursuing his case in the ordinary way. He had no cause to do this. The state did not hamper him from gathering and presenting the information he now deploys against his lawyer’s strategy and tactics; indeed, most of the necessary information was in his hands before the end of the trial. Branion insists, for example, that his counsel did not interview or call some witnesses whose names he suggested, did not interview additional pathologists to obtain evidence that more than four bullets must have passed through Donna Branion, and that against the judgment of an adviser, Eugene Pine-ham (now a judge of the Appellate Court of Illinois), did not call Branion as a witness in his own defense. These things were evident before and during trial. Branion’s own flight was the cause of the default in state court, and this is not a good excuse for a 20-year delay. Murray v. Carrier, 477 U.S. 478, 495-97, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986), said that the cause-and-prejudice rule does not apply when the prisoner demonstrates that his incarceration is “fundamentally unjust”, citing Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1576, 71 L.Ed.2d 783 (1982). Branion seeks the benefit of this exception. To the extent this is the claim of innocence in another guise, it is unpersuasive for the reasons we gave in Part II. To the extent Branion asks for a favorable exercise of equitable discretion, he has no equities. Judge Getzendanner wrote (emphasis in original): The reason that the only evidence now available regarding these events is so old is that Branion himself chose to flee to Africa rather than serve his prison term as was his legal obligation. He flouted the very legal processes that he now seeks to invoke. In these circumstances, the continued incarceration of Branion does not strike me as a “miscarriage of justice.” I therefore decline to suspend the cause-and-prejudice rule for ... Branion’s ineffective assistance claim. We agree. Judge Plunkett’s opinion and judgment of November 20, 1987, are vacated because he had no jurisdiction. Appeal No. 87-3053, which challenges that judgment, is dismissed for want of jurisdiction. Segments J through Q of Branion’s appendix, and Part III of his opening brief, are stricken because they incorporate materials not in the record. On Appeal No. 87-3052, from Judge Getzendanner’s final order of September 22, the judgment is AFFIRMED. APPENDIX 3. Judge Plunkett’s scenario requires improbable assumptions that do not comport with the standard of guilt beyond a reasonable doubt. It is one thing to construe record evidence “in the light most favorable to the prosecution.” But it is quite another to adopt so improbable a view of the evidence that it neither rationally nor fairly supports a finding of guilty “beyond a reasonable doubt.” In the Branion case there were two key pieces of uncontradicted prosecuto-rial evidence given in the form of a range of estimated times: Dr. Belmonte’s evidence that the bruises on Donna Branion’s neck took between 15 to 30 minutes to form, and Detective Boyle’s evidence that the driving time of Dr. Branion’s route took between 6 to 12 minutes. When evi-dentiary ranges are given, the most probable events can be plotted on a standard statistical deviation curve or “bell curve”: Frequency 6 min.DRIVING TIME.12 min. 15 min.GARROTING TIME .... 30 min. If the probability standard for proof “beyond a reasonable doubt” is 80% to 90% certainty, as it is generally taken to be, then the most reasonable assumption of the two times are: (a) the bruise took between 21 and 24 minutes to form, and (b) the drive took between 8 to 10 minutes. As the times diverge in either direction from these limits, the probabilities grow rapidly smaller. At (a) 15 minutes and (b) 6 minutes, the probabilities are less than 1%. Moreover, since the two time-sequences are independent of each other, the probabilities must be multiplied to find the chances that both were applicable to Dr. Branion. Hence the probability that the time between garroting and shooting was 15 minutes and the probability that the driving time was 6 minutes is .01 x .01 = .0001. To suggest, as Judge Plunkett does, that this improbability of .0001 actually occurred is in fact to concede the irrationality of a finding that Dr. Branion was guilty beyond a reasonable doubt. A reasonable doubt probability of 90%, or 0.9, is 9,000 times larger in magnitude than the joint probability of .0001. In other words, if there were 9,000 cases similar to Dr. Bran-ion’s where the only two facts known were the garroting time and the driving time, then 8,999 defendants would be innocent and only one guilty. In short, the chance that Dr. Branion is guilty, on the basis of the garroting time and the driving time alone, is one in 9,000. But even that insignificant chance is too high in Dr. Branion’s case, because even if the utterly improbable happened, there still would not be enough time for Dr. Branion to have killed his wife. The minimum driving time (6 minutes) plus the minimum garroting time (15 minutes) subtracted from the window of time of 27 minutes the state contends Dr. Branion had (11:30 to 11:57) is 27 — 21 = 6 minutes. But Dr. Branion could not have done all the things the state concedes he did in those remaining 6 minutes. According to the police detectives’ conclusion based upon interro gation of witnesses, it took 4 to 5 of those 6 minutes just to account for the time between Dr. Branion’s running out on the back porch calling for “Helen!” and when the police were called at 11:57. A. 216. And it took another 5 minutes for Dr. Bran-ion to dress Joby in winter outerclothes, according to prosecution witness Joyce Kelly. A. 99. These two uncontroverted time segments alone add up to a total of 9 to 10 minutes, overwhelming the 6 minutes available. In addition, there is a host of other events that consumed additional time. . Amin, a brutal dictator, was overthrown in 1979, and the country has since undergone several changes of government. See David Lamb, The Africans 77-107 (1987). . The jurisdictional statement in Branion’s brief compounds matters. The statement omits any reference to either the Rule 59 motion before Judge Getzendanner or the notice of appeal filed on October 20, despite the fact that Circuit Rule 28(b) requires all such matters to be spelled out. The jurisdictional statement as drafted initially led us to believe that the motion filed on October 15 was the first post-trial motion, and the notice of appeal on November 25 an appeal from its denial. The appellee’s brief certified that the appellant’s jurisdictional statement is "complete and correct”. It is difficult for this court to carry out the necessary inquiry into its own jurisdiction without the assistance of counsel. Counsel for both sides in this case misled rather than assisted the court. . Branion furnished Judge Getzendanner with a report from the Northwestern University Traffic Institute concluding that the police estimates were too short. Perhaps traffic patterns (and the number of stop signs and stop lights) changed in the intervening 18 years. At all events, disputes of this kind do not assist the accused under Jackson; we look at the evidence in the light most favorable to the verdict. . Branion contends that he had a 5-minute conversation with a neighbor before entering his house. This evidence was not presented to the state courts or to Judge Getzendanner and is among the submissions we have stricken from the appendix. . We suggested in Brown v. Bowen, 847 F.2d 342, 345-46 (7th Cir.1988), that reasonable doubt means 0.9 or so, with adjustments depending on the gravity of the offense. That figure is the median of estimates from a survey of federal judges. See C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees, 35 Vand.L. Rev. 1293, 1325-32 (1982). Judges were not of one mind about this, however. Some thought that reasonable doubt means 100% certainty (as if that were available for any endeavor after Werner Heisenberg's work), while one thought reasonable doubt meant 50% or more. At least no federal judge thought that probabilities of less than 50% could satisfy the reasonable-doubt standard! (Defining "beyond a reasonable doubt” as a probability of 0.9 or more does not imply that 10% of all those convicted are innocent, any more than the civil burden of p > 0.5 implies that half of all civil cases are decided incorrectly. The limit is a cutoff, a minimum degree of confidence after the rules of evidence and other devices narrow the considerations before the court. A range of 0.9 < p < 1.0 could imply a median confidence somewhere around 0.95. Almost all cases are decided at higher levels of confidence still, because constraints on resources lead the prosecutor to filter out borderline cases.) . Compare Michael O. Finkelstein & William B. Fairley, A Bayesian Approach to Identification Evidence, 83 Harv.L.Rev. 489 (1970), with Laurence Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv.L.Rev. 1329 (1971), and the continuation in Finkel-stein’s Quantitative Methods in Law 288-310 (1978). The more useful recent contributions include Lea Brilmayer & Lewis Kornhauser, Quantitative Methods and Legal Decisions, 46 U.Chi.L.Rev. 116, 135-48 (1978), and David Kaye, Apples and Oranges: Confidence Coeffi cients and the Burden of Persuasion, 73 Cornell L.Rev. 54 (1987). Several of the principals in this debate summarize and extend their arguments in a symposium, Probability and Inference in the Law of Evidence, 66 B.U.L.Rev. 377-952 (1986). . Straight multiplication of probabilities is not the right way to find the joint probability. We need to compute, from the means and variances of two or more independent events, the joint mean and variance. See Hugh D. Young, Statistical Treatment of Experimental Data 96-99 (1962), for a description of the method. Only with these data may we determine the probability that a given observation will fall a given distance from the joint mean. Consider a quantity Q (here, time) to be calculated from several observed quantities a, b, c, and so on. The first step is to calculate the mean and variance of each of the constituents, where: o 1 N aa = Jf X <Aai)2 /= 1 The complete formula, derived by a process that need not be repeated, is: 2 amQ -m 'ma 2 °mb + where amQ is the variance of the mean of Q, oma the variance of the mean of a, and so forth. In this case Q = a + b, so (£) = I and dQ (37 ) = 1. Thus a Q 2 ab- Branion seems to assume, for reasons he does not explain, that the times given in the testimony correspond to two or three standard deviations on either side of the mean. (We infer this from the scale on the graph in the brief.) this leads to the conclusion that a = 9 minutes and aa = 1, and that = + 2.5^ = 7.25, implying sr <T> 3 Q O10 3 CL Q 3 0 to to that Q = 31.5 minutes and oq = 2.73 minutes. It is then straightforward to determine that the probability that Q < 21 ~ 0.001. If we assume instead that the ranges in the evidence correspond to one standard deviation, then the standard deviation of driving times = 3 and the standard deviation of bruise-forming times is 7.5 minutes, and we quickly compute oq = 8.1 minutes, so that the probability that Q < 21 ~ 0.10. . An affidavit signed by William L. Hooks in July 1986 states: "After Dr. Branion was convicted, and. while Judge Holzer was deciding what to do about the defense motion for a judgment notwithstanding the verdict, Nelson Brown [Donna Brown Bran-ion's brother] came to me and said that Judge Holzer was looking for a bribe.... A couple days later, Nelson Brown told me that he was able to get $20,000 from other friends of John Branion’s, but they had imposed a condition that $10,000 be paid to Judge Holzer in advance and the remaining $10,000 would be paid to him as soon as John Branion was freed.... A day or two later, I inquired of Nelson Brown what was going on, and he informed me of a meeting that was held at the Holiday Inn on Lake Shore Drive, at which Judge Holzer and his bailiff, and Nelson Brown, were present. At that meeting, $10,000 in cash was passed to Judge Holzer. A dáy or two later ... Nelson Brown informed me that Judge Holzer said that he could not accept the remaining $10,000 in addition to the $10,000 he had already received, because the state’s attorney had somehow gotten wind of the meeting in the Holiday Inn and threatened to arrest everyone concerned and to lock up the judge too if the judge reversed the jury’s verdict. Nelson Brown added that Judge Holzer said he would, however, release John Branion on bail in return for the $10,000 that was paid.” Holzer indeed released Branion, allowing him to flee the country. If this story is true, more than one extortion plot was afoot.

CUMMINGS, Circuit Judge. From August 1988 until June 19, 1995, Stephen Fredrick (“Fredrick”) worked as a pilot for defendant Simmons Airlines, Inc. (“Simmons”). Both Simmons and defendant American Airlines, Inc. are owned by defendant AMR Corporation (“AMR”). Fredrick was a critic of the safety record of the ATR aircraft that Simmons used on many of its flights. In 1993, Fredrick warned Simmons officials about the perceived safety problems with the ATR. Then, following the October 31, 1994 crash of an AMR-owned ATR plane in northwestern Indiana, Fredrick distributed leaflets about the ATR to passengers at Chicago’s O’Hare International Airport and appeared on the television program “Good Morning America” to discuss his safety concerns. Upon his return to O’Hare on December 3, 1994 following the television appearance, Fredrick prepared to work on a round-trip flight to Rockford, Illinois. Before the flight departed, however, two Simmons employees accompanied by a security officer who was also employed by an AMR-affiliated entity instructed Fredrick to remove his bags from the plane. He complied, and the Simmons employees searched Fredrick’s “flight bag,” which contained materials. related to Fredrick’s work and the flight he was scheduled to make. When the officials demanded that Fredrick allow them tó search his personal bags as well, he stated that he would only open the bags if airport security or local police officers were present. Simmons responded to this refusal by suspending Fredrick without pay for insubordination. Ten days later, Simmons placed Fredrick on administrative leave.' On June 19, 1995, Simmons terminated his employment. Thereafter, at least according to Fredrick’s complaint, Simmons and the other defendants took actions that led to the revocation of Fredrick’s medical certification by the Federal Aviation Administration (“FAA”). As a result of this revocation, Fredrick was unable to work as a pilot. An officer of one of the defendants allegedly stated to Fredrick that the defendants would take steps to allow him to continue to fly if he stopped discussing the ATR’s safety problems in public. Fredrick filed suit in federal court on a claim of tortious interference with prospective economic advantage against all three defendants and a claim of retaliatory discharge against Simmons. Following a motion by the defendants, the district court dismissed both claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. Fredrick filed a timely notice of appeal; this Court now affirms the dismissal of his claim for interference with prospective economic advantage, but reverses with respect to the claim of retaliatory discharge. I. STANDARD OF REVIEW This Court reviews the district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6) de novo. Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 419 (7th Cir.1994). In reviewing a grant of dismissal, we must take as true all factual allegations in the plaintiffs pleadings and draw all reasonable inferences in his favor. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir.1996). We will affirm a dismissal only if it appears beyond a doubt from the pleadings that the plaintiff is unable to prove any set of facts consistent with the allegations of the pleadings that would entitle him to relief. Hiskon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80); Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir.1997). II. INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE Under Illinois law (which the parties agree controls this claim), the elements of tortious interference with prospective economic advantage are: (1) that the plaintiff had a reasonable expectation of entering into a valid business relationship, (2) that the defendant knew of this expectancy, (3) that the defendant intentionally and unjustifiedly interfered to prevent the expectancy from being fulfilled, and (4) that damages to the plaintiff resulted from the interference. Anderson v. Vanden Dorpel, 172 Ill.2d 399, 217, Ill.Dec. 720, 723-24, 667 N.E.2d 1296, 1299 (1996). In its oral statement of reasons for dismissing the case, the district court declared that Fredrick had failed to allege that any conduct by the defendants was directed toward a third party with whom he might have had a business expectancy. The court also saw as “valid” the defendants’ arguments that Fredrick had failed to identify any third parties with whom he had a valid business expectancy, failed to allege that the defendants intentionally interfered with any such expectancy, and failed to allege that damages resulted. It is debatable whether the ground upon which the district court relied is sufficient to justify dismissing the claim. Let us assume for the time being that Fredrick’s allegation that he “legitimately expected to continue his work as a commercial phot” (Plaintiff-Appellant’s Appendix (hereinafter “Pl.App.”) at A-8, para. 45) sets out the required business expectancy. The further allegation that the defendants engaged in “efforts and actions” via the FAA aimed at preventing Fredrick from finding work as a pilot (see Pl.App. at A-7, para.para. 36,40) may well be enough to satisfy the requirement that the defendants’ actions be “directed toward” the third party or parties with whom the plaintiff had the business expectancy. See, e.g., Douglas Theater Corp. v. Chicago Title & Trust Co., 266 Ill.App.3d 1037, 204 Ill.Dec. 360, 366, 641 N.E.2d 584, 590 (1994). Fredrick’s argument that the defendants, in directing their actions toward the FAA rather than other individual airhnes, merely utilized the most efficient means avaüable to ruin his job prospects with aU other airlines simultaneously is not unconvincing. Particularly in Kght of the Federal Rules’ Uberal system of notice pleading, Fredrick’s allegations may have been sufficient in this regard. We need not ultimately resolve this question, however, for Fredrick’s complaint is deficient in other respects that fuUy support the district court’s dismissal of this claim. Most glaringly, he has faüed to aUege any reasonable expectation of a business relationship at aU. Above we assumed for the sake of discussion that this element had been sufficiently pled, but upon examination it is not so. Fredrick aUeges merely that he wished to continue working as a commercial pilot. He does not claim that he had been offered a job by any other airUne, or even that he had interviewed or apphed for such positions. The Supreme Court of Illinois has held that “[t]he hope of receiving a job offer is not a sufficient expectancy” to support the tort at issue here. Anderson, 217 Ill.Dec. at 723, 667 N.E.2d at 1299. In that case, the plaintiff had alleged that she was the “leading candidate” for the position and that she had received assurances from the persons who had interviewed her that she was being “seriously considered” for the job and that they would recommend that she be hired. Id. at 723-23, 667 N.E.2d at 1299-1300. Fredrick’s allegations reveal an even more tenuous basis for claiming a business expectancy than was the case in Anderson, and so the district court did not err in dismissing this claim under Rule 12(b)(6). III. RETALIATORY DISCHARGE A. Choice of Law Fredrick’s complaint alleges that Simmons discharged him from his employment in retaliation for his “going pubUc” with his concerns about the safety of the ATR. As an initial matter, the parties disagree over which state’s law should govern the claim. Fredrick argues that Illinois law should control and that under that law his claim was improperly dismissed. Simmons replies that either Texas or Wisconsin law is the appropriate choice, and Fredrick concedes that under either of the latter approaches his claim must faü. The district court opined that Texas or Wisconsin law would be more appropriate than that of Illinois, but ultimately held that the choice of law dispute was irrelevant, because the claim had to be dismissed no matter which state’s law applied. This Court does not share the district court’s ineUnation against applying Illinois law to the dispute. A federal court sitting in diversity apples the choice of law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477; Birchler v. Gehl Co., 88 F.3d 518, 520 (7th Cir.1996). The Illinois Supreme Court uses the “most significant relationship” test for choosing the appropri ate law in tort cases. Esser v. McIntyre, 169 Ill.2d 292, 214 Ill.Dec. 693, 696, 661 N.E.2d 1138, 1141 (1996) (citing Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970)). In practice, this means that “the law of the place of injury controls- unless Illinois has a more significant relationship with the occurrence and with the parties.” Esser, 214 Ill.Dec. at 696, 661 N.E.2d at 1141. A court is to determine whether Illinois has the more significant relationship by examining the following factors: (1) the place of the injury, (2) the place where the injury-causing conduct occurred, (3) the domicile of the parties, and (4) the place where the relationship between the parties is centered. Id. The Illinois courts also consider “the interests and public policies of potentially concerned states ... as they relate to the transaction in issue.” Jones v. State Farm Mut. Auto. Ins. Co., 289 Ill.App.3d 903, 224 Ill.Dec. 677, 682 N.E.2d 238, 249 (1997) (citation omitted). Simmons points out that Wisconsin, as Fredrick’s domicile, is the state in which his alleged injury took place. The other factors, however, point to more than one state. Simmons is a Delaware corporation with its principal place of business in Texas. Throughout his employment with Simmons, Fredrick was based at O’Hare Airport in Illinois, so that is the most likely candidate for “the place where the relationship between the parties is centered.” Moreover, Fredrick’s leafleting took place at O’Hare, as did the attempted search of his bags that led directly to his suspension for insubordination. Simmons claims that the actual decision to terminate Fredrick’s employment took place in Texas, but it relies for that proposition upon affidavits of its employees. Affidavits are not properly considered in deciding upon a motion under Rule 12(b)(6) unless the district court converts the motion into one for summary judgment under Rule 56. This Court concludes that Illinois law should apply to this dispute. In addition to the fact that some of the most central aspects of the case point to Illinois, we believe that Illinois has a significant public policy interest in having its law apply to a claim of retaliatory discharge made by an airline employee whose work assignments began and ended within the state. Moreover, Simmons conceded that Illinois law should govern Fredrick’s claim of interference with prospective economic advantage, discussed in Part I of this opinion. Yet that alleged tort arguably had less connection to Illinois than does the retaliatory discharge at issue here. On the facts of this ease, Illinois law should govern both claims. B. Merits In Illinois, the tort of retaliatory discharge occurs when an employee is discharged in retaliation for his activities, and the discharge violates a clear mandate of public policy. See Meister v. Georgia-Pacific Corp., 43 F.3d 1154, 1160 (7th Cir.1995) (citing Hartlein v. Illinois Power Co., 151 Ill.2d 142, 176 Ill.Dec. 22, 30, 601 N.E.2d 720, 728 (1992)). Illinois’ public policy “is to be found in the State’s constitution and statutes and, when they are silent, in its judicial decisions.” Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 15, 421 N.E.2d 876, 878 (1981). Fredrick’s complaint alleges that Simmons fired him in retaliation for his public criticism of the ATR’s safety and that this discharge violates Illinois’ public policy of providing for safe air travel. He directs this Court to the Illinois Aeronautics Act (“IAA”), 620 ILCS 5/42, which declares that “[t]he general public interest and safety, the safety of persons operating, using, or traveling in, aircraft, and of persons and property on the ground, and the interest of aeronautical progress requir[e] that aircraft operated within this State should be airworthy....” Simmons replies that the IAA by its terms does not apply to aircraft engaged in interstate or international commercial flights, as the ATRs that Fredrick complained about were, and therefore that Illinois has no specifically articulated public policy concerning the safety or airworthiness of such craft. The airline also argues that, even if Illinois does have such a public policy, no Illinois ease has ever used the tort of retaliatory discharge to protect an employee who has “gone public” with his or her concerns rather than reporting them to the employer or to governmental authorities. TMs Court is not willing to hold that Illinois has no public policy interest in the safety of the aircraft that fly into and out of Illinois airports. Nor, in the context of a motion to dismiss, will we hold that the Illinois courts would not afford Fredrick the protection offered by the cause of action for retaliatory discharge. In some circumstances an employee might be justified in taking his concerns directly to the public. The Illinois Supreme Court has not addressed such a case, but one Illinois Appellate Court case appears to support the conclusion that a claim of retaliatory discharge might be based on such facte. In Paskarnis v. Darien-Woodridge Fire Protection District, 251 Ill.App.3d 585, 191 Ill.Dec. 138, 623 N.E.2d 383 (1993), a fire chief was terminated for “speaking out” against a policy that he believed hampered the department’s ability to train part-time firefighters. See id. at 139, 623 N.E.2d at 384. The Illinois court held that the plaintiff had stated a claim for retaliatory discharge. Id. at 140, 623 N.E.2d at 385. Fredrick’s coihplamt alleges that he brought his concerns about the ATR to Simmons’ attention in 1993 and that the airline took no action in response. It also aUeges that the FAA was aware of Fredrick’s criticism of the ATR’s safety. Making aft inferences in Fredrick’s favor, as .we must in evaluating a decision to dismiss pursuant to Rule 12(b)(6), this Court cannot say as a matter of law that Fredrick was unjustified in choosing to take his concerns to the public. No Illinois court has held that an employee forfeits his cause of action for retaliatory discharge by complaining publicly rather than privately, and this Court will not take that step today. The district court therefore erred in dismissing Fredrick’s claim of retaliatory discharge. CONCLUSION The district court was correct in dismissing Fredrick’s claim of interference with prospective economic advantage, because the mere hope of obtaining employment is not a protected expectancy. The lower court erred, however, in dismissing the claim of retaliatory discharge. This Court affirms in part and' reverses in part, remanding the retaliatory discharge claim for further proceedings consistent with this opinion. . Fredrick's complaint also included a claim under 42 U.S.C. § 1983, but Fredrick voluntarily dismissed that count. Although federal question jurisdiction was thereby destroyed, the complaint also invoked the district court’s diversity jurisdiclion. The defendants apparently did not challenge this alternative basis of jurisdiction, and the district court retained jurisdiction over the remaining claims on this ground.

LONGYEAR, District Judge. Among the powers of congress enumerated in the constitution (article 1, § 8), are, “to establish * * * uniform laws on the subject of bankruptcies throughout the United States,” and, “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof.” Under the first power named congress established the bankrupt law of 1867. If, therefore, the clause of section 44 in question, is a law “necessary and proper” for carrying the bankrupt law into effect, it comes within the latter power named, and is constitutional and valid; otherwise it is not, because then it is a mere police regulation relating exclusively to the internal trade of the states, and does not come within the power of congress. U. S. v. De Witt. 9 Wall. [76 U. S.] 41. Under the first proposition of the argu ment in support of the motion, it is important to bear in mind the distinction between the subject matter, bankruptcy, in regard to which congress is empowered to legislate, and the means, machinery or practice congress has prescribed for carrying that power into effect. It is with the former, the subject matter, we have to deal here, and not with the latter, any further than it may come in question incidentally. "What then is “the subject of bankruptcy?” What does it include? What realm do laws upon that subject occupy? And what are necessary and proper laws for carrying such laws into effect? The Federalist (No. 32) alludes to the constitutional power of congress to establish uniform laws of bankruptcy as a power intimately connected with the regulation of commerce, and for the prevention of frauds. 2 Story, Const. § 1105. It is intimately connected with the regulation of commerce because it has for its subject the .relation of debtor and creditor—a relation growing out of commercial transactions, and often, and it may be said to a very large extent, between citizens of different states, and, in fact, between citizens of the United States and those of foreign countries. That it is a power for the prevention of frauds on creditors has always been assumed whenever it has been exercised. and I believe has never been questioned. (See the former acts of 1800 and 1841, as well as the present act of 1807.) To this end these laws are made to reach back of the commencement of proceedings to defeat frauds, and, in fact, to constitute acts frauds, which by the laws of the states, and but for the bankrupt law itself, were entirely valid. Story on the Constitution (section 1100) says: “It may be stated that the general object of all bankrupt and insolvent laws is, on the one hand, to secure to creditors an appropriation of the property of their debtors pro tanto to the discharge of their debts, whenever the latter are unable to discharge the whole amount; and on the other hand, to relieve the unfortunate and honest debtors from perpetual bondage to their creditors, either in the shape of unlimited imprisonment to coerce payment of their debts, or of an absolute right to appropriate and monopolise all their future earnings.” A very, compact and pointed description, or definition of a bankrupt law occurs in the ' debates on a bankrupt bill in the house of representatives in eighteen hundred and eighteen. It was there said: “Perhaps as satisfactory description of a bankrupt law as can be framed is, that it is a law for the benefit and relief of creditors and their debtors, in cases in which the latter are unable or unwilling to pay their debts. And a law on the subject of bankruptcies -in the sense of the constitution, is a law making provision for eases of persons failing to pay their debts.” 4 Elliot, Deb. 282. The “subject of bankruptcy,” in a general sense, concerns the relation of debtor and creditor, and in a particular and no doubt stricter sense, concerns such relation in cases where the debtor is unwilling or unable to pay his debts. Laws upon that subject have for their object the appropriation, either voluntarily or by compulsion, of the debtor’s property to the payment of his debts, pro tanto, or in full, as the case may be, and the relief of honest debtors. To accomplish this object these laws are made to operate upon, affect and control the relations of the parties, so as to limit and circumscribe the rights of the debtor in, and his control over, his property, and the rights of others dealing with him, in regard thereto, in many particulars, before any proceedings in bankruptcy shall have been commenced by or against such debtor. Of this nature are the provisions of sections thirty-five and thirty-nine, invalidating preferences under certain circumstances when made within four months, and certain payments, sales, transfers, etc., when made within six months before commencement of proceedings; and all assignments, gifts, sales, conveyances or transfers, with intent to delay, defraud or hinder creditors, made at any time after the passage of the act. There are other provisions of the same nature, but the above are sufficient for illustration. The power of congress to enact the provisions giving the act the operation and effect just mentioned (and I am not aware that their right to exercise that power has ever been questioned), is derived solely from their general powers under article 1, § 8, of the constitution, to make all laws necessary and proper for carrying into effect their power to establish laws on the subject of bankruptcy. It is to this same general provision of the constitution that we must look for the power of congress to make the law in question. It must be found there or it does not exist at all. One object to be attained by the enactment of a bankrupt law, as we have seen, is the appropriation of the debtor’s property to the payment of his debts. And this may be said to be the principal or primary object of all such laws. The relief of the debtor, although an important consideration, is really but incidental to the other. Story, Const. § HOC. Is the provision in question a law “necessary and proper,” within the meaning of those words as used in the constitution, for carrying into effect the bankrupt law, and the object and purpose of its enactment? The meaning of the words “necessary and proper” has been judicially determined by the supreme court on full discussion and deliberation to be “needful,” “requisite,” “essential,” “conducive to.” McCulloch v. Maryland, 4 Wheat. [17 U. S.] 418. See, also, Story, Const. §§ 1248-1255, citing the above and other authorities, where the subject-is very fully considered and the same construction maintained. In McCulloch v. Maryland [supra]. Chief Justice Marshall, in delivering the opinion of the court, says: “IVe admit, as all must admit, that the powers of the government are limited, and that its limits are not to he transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end. which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Here, as we have seen, the end sought is the appropriation of the debtor’s property to the payment of his debts. The clause in question is for the prevention of frauds by debtors on their creditors, by which that end may be defeated or impaired. It certainly ■does not need argument to show that the provision is a means clearly conducive, and plainly adapted, to the end sought. But it is claimed in argument, first—that the provision in question purports to punish an offense committed before commencement of proceedings in bankruptcy, and that, therefore, it can have no connection with the bankrupt act; and, second—that such offense (as is charged in the information in this case) is one committed by a debtor merely, one who may or may not become a bankrupt. and that, therefore, it has no connection with the act; and that for both reasons the offense concerns the internal trade of the states alone, and is not within the power of congress to be created or punished. I think the ground occupied by the first objection is much too narrow. The proceedings in bankruptcy do not constitute the end to be accomplished by a bankrupt act. They constitute the machinery, so to speak, by which that end is to be obtained, viz.: the appropriation of the debtor’s property to the payment of his debts. Therefore the prevention of the fraud denounced by the provision, being, as we have seen, conducive to that end, it can make no difference whether it relates to a fraud committed before or after the machinery provided for the accomplishment of the end is set in motion. The second ground is more difficult of solution. The person who may commit the offense is described in the act as “any debtor or bankrupt,” and in the case under consideration the defendant is described in the information as a debtor merely. In the English bankrupt acts, from which the provision in question was no doubt taken, the word “bankrupt” only is used, the word “debtor” having been added in our act. In order to be a bankrupt a person must first be a debtor. But a bankrupt, in the sense of the English act, as well as of our own. is a debtor, and something more. He is a debtor who has committed an act of bankruptcy, declared to be such by the bankrupt law. Rex v. Jones, 4 Barn. & Adol. 345; 24 E. C. L. 156; Reg. v. Lands, 33 Eng. Law & Eq. 036; Buckingham v. McLean, 13 How. [54 U. S.] 167; In re Black [Case No. 1,457]; In re Craft [Id. 3,317]. A “debtor” may or may not be a bankrupt. But, from the fact that both words, “debtor” and “bankrupt,” are used, and in the disjunctive, it must be held that the former is used in the provision in question, as descriptive of a person who is a debtor, but who has not, at the time of committing the offense, become a bankrupt. And it is on this account, principally, that the difficulty arises. This difficulty, however, is only apparent, as we shall presently see. It grows less when we consider what, as we have already seen, is included by the expression “subject of bankruptcies,” as used in the constitution—that in a general sense it concerns the relation of debtor and creditor, a relation existing largely between citizens of different states, and so, nearly related to. in fact constituting a branch of those great commercial relations over which the power of congress is also extended. True, the expression has a limited signification, that is. that it concerns the relation of debtor and creditor in cases where the debtor is unable or unwilling to pay his debts, yet it none the less concerns the relation of debtor and creditor, the limitation being in the instance only, and not in degree. And when we also consider that the leading object of a bankrupt law is the appropriation of the debtor’s property to the payment of his debts, and to that end the prevention of frauds, reaching back of the commencement of proceedings, as the present law does (sections 35 and 39), and as the previous laws of 1S00 and 1341 did, and invalidating and annulling contracts and transactions on that ground (some of'which, but for the bankrupt law, were valid when made), within certain specified periods of time, and, in some instances, at any time after the passage of the act; and this, so far as I know or can ascertain, without question, or even a doubt suggested as to the constitutional power of congress so to enact. And the difficulty grows still less, in fact vanishes, when the foregoing considerations are taken in connection with the fact that the ascertainment whether the act described constitutes-a crime is made to depend upon the debtor’s committing some act of bankruptcy, on account of which he shall be declared a bankrupt, within so short a time after doing the act specified as to afford a reasonable presumption that he contemplated bankruptcy (.or committing an act of bankruptcy, which is the same thing, as we have seen), when he did the act specified. The time specified in the provision is “within three months next before the commencement of proceedings in bankruptcy.” Commencement of proceedings in bankruptcy is the fil ing of a petition for adjudication of bankruptcy by or against a debtor, upon which such debtor shall be adjudicated a bankrupt Section 3S; In re Patterson [Case' No. 10,-815], If the petition is filed by the debtor, then that is the act of bankruptcy whereby he acquires the legal status of bankrupt. Section 11. If the petition is filed against the debtor, then the act or acts by which he acquired that status, and on account of which he is adjudged a bankrupt, must have been committed before the filing of the petition. So that in either case the debtor must have committed an act of bankruptcy within three months after the act specified in order to bring the case within the law. Suppose congress had, in lieu of the present form of expression, provided that in order to constitute the specified act as an offense, it should be committed by a debtor contemplating, or in contemplation of bankruptcy; then I apprehend there could be no question of the constitutionality of the provision. But is not that the force and effect of the provision as it now stands? If congress had enaeted as above supposed, it would have been left to courts and juries to determine what would constitute proof of contemplation of bankruptcy. Like all other questions of the intent or animus of the acts and conduct of persons, it would very rarely admit of direct proof, but in most eases would necessarily depend upon circumstantial evidence. There are provisions of the act by which the fraudulent character of transactions is expressly made to depend upon their having been had “in contemplation of bankruptcy.” In such cases it has always been held that the fact that the transaction was had by a debtor at a comparatively recent period of time before becoming bankrupt, is presumptive evidence of the transaction having been had in contemplation of bankruptcy—stronger or weaker, as the time was more or less remote. But this leaves the matter to depend largely upon the uncertain and varying opinions of different judges and juries, and perhaps the fluctuating opinions of the same judges—an element which ought not to exist in penal enactments. Congress has, therefore, seen fit in the enactment in question, to withhold this question from courts and juries, and by express enactment to establish a rale as to the time, which shall be at once uniform and conclusive. It was said in argument, that from the reading of the provision in question, it is not the doing of the act specified that constitutes the offense, but the commencement of proceedings in bankruptcy, by or against the offender. From the views already advanced the answer to this obejction is obvious. If the debtor commits the act specified, and at anytime within three months thereafter, commits an act, on account of which he is liable to be declared by the court to be a bankrupt, he is, as we have seen, conclusively presumed to have committed the act in contemplation of committing an act of bankruptcy, and the offense is complete, upon committing the former act, whether proceedings for adjudication of bankruptcy are commenced within three months or not, except in the single instance where the act of bankruptcy is the commencement of such proceedings by the debtor. But the offense cannot be prosecuted unless such proceedings are commenced within three months. In this respect it is a limitation merely. It was also objected in argument that the-limitation to three months is purely arbitrary, that it might just as well be three years, or thirty years. That would simply be an abuse of power, which we have no right to presume any congress would be guilty of. Story on the Constitution (section 1252), citing the-Federalist, Nos. 33, 34, says: “There is always some chance of error, or abuse of every power; but this furnishes no ground of objection against the power. * » * The remedy for any abuse or misconstruction of the-power, is the same as in similar abuses and misconstructions of the state governments. It is by an appeal to the other departments, of the government; and finally to the people, in the exercise of their elective franchises.” And finally, the same objection might be-made to sections 35 and 39, and to all limitation laws, which no one would think of making at this day. From what has been said and written by early commentators, and by high authority, in regard to the power of congress over bankruptcies as well as from the nature of the subject itself, there is some ground for assuming that it extends to the regulation of all the relations of debtor and creditor, for the prevention of frauds, and otherwise, to the-ena of placing all creditors of the same debtor,, not expressly preferred, upon one broad basis of equality, and of securing the honest appropriation of a debtor’s property, not expressly exempted, to the payment of his debts, either with or without the commission of an act of bankruptcy, or whether bankruptcy was or-was not in contemplation. But in this case it is unnecessary to go to that extent, and I therefore leave the point undecided. Upon all considerations, I hold that the first ground of argument against the unconstitutionality of the law is untenable. The second ground of the objection is, that the provision in question is an ex post facto-law, and therefore unconstitutional, in this,, that it purports to punish an act as an oí-fense which was not such at the time it was-committed. As we have already seen, the act which this provision purports to punish is an. offense, when it is an offense at all, the moment it is committed. It is made necessary, it is true, to resort to the subsequent acts of the perpetrator, to ascertain the criminal character of such former act; but when thus ascertained, it relates back to the committing-of it. Such subsequent acts do not invest such former act with any element it did not pos sess when it was committed, but simply ascertain what its elements were from the beginning. An ex post facto law, however, is, in common acceptation, a law enacted after the fact. Here the law was in existence at the time the act complained of was committed. The objection, therefore, is not germane. The second ground of objection is, therefore, also untenable. While the powers of the general government are all derived from the constitution, the powers of each branch, the legislative, the executive and the judicial, are entirely separate and distinct from each other. And while the judicial branch, under its powers to expound the law, possesses the power to annul legislative acts on the ground of unconstitutionality, it will never exercise that power except in cases entirely free from all reasonable doubt. So that if I even entertained doubts in this case, which I do not, I should still be obliged to hold the law valid. The law in question is one that strongly commends itself to favor. A proper and enlightened enforcement of it, must tend largely to strengthen credit and inspire confidence in commercial transactions—consummations highly worthy of the fostering care of the government, especially in a country like ours, where credit enters so largely in the business transactions between merchants and traders. The creditor, when he parts with his property, necessarily relies largely upon the honesty and good faith of his debtor—that the latter will do nothing intentionally which shall impair his ability to pay at maturity, or failing to do so. that shall interfere with the honest appropriation of his property to the payment of his debts. It is both a moral and a legal right of the creditor so to rely, and it is both a moral and a legal obligation and duty of the debtor to observe that right, and nothing in my opinion will conduce more to its observance than a rigid enforcement of the law in question. Let it come to be understood that it is a crime for a debtor wilfully and intentionally to violate the faith and betray the confidence placed in him, constituting as they do, in most cases, the very foundation of his credit, a crime for which severe and certain punishment will be inflicted, and I firmly believe that we shall have less of fraud, and fraudulent practices—that corrupt and debilitating disease with which the body commercial has always been afflicted. This ease, was transmitted from the district to the circuit court, on account of the novelty and importance of the questions here involved, in the hope that a hearing of this motion might be had before a full bench. But on account of the extensive and laborious duties of the circuit judge on his too large circuit, the end sought was found to be impracticable without considerable delay. I have, therefore, by the consent and acquiescence of all parties concerned, heard the motion without his valuable aid. I have, however, availed myself of opportunities to consult with him, and have laid the views expressed in the foregoing opinion before him, and I am authorised by him to say that he fully concurs in the result at which I have arrived. The motion in arrest of judgment must be denied, and judgment must pass upon the verdict. The defendant was sentenced to one year’s imprisonment.

MARTIN, Judge. This is an appeal from the decision of the Trademark Trial and Appeal Board, 133 USPQ 630, sustaining the refusal of the examiner to register “GASTOWN” as a service mark for “automobile and truck supply maintenance services.” Appellant asserts that the mark is used by applying it to stationary pumps, globes, signs, and like displays associated with its services. Use since January 13, 1949, is alleged. The examiner’s refusal of registration was based on the grounds that (a) the claimed services are not rendered in interstate commerce, and (b) “automobile and truck supply services” are not “services” within the meaning of the Trademark statute. The board affirmed only on the ground that the services are not rendered “in commerce” within the contemplation of Section 45 of the Trademark Act of 1946, and reversed the examiner as to ground (b). The applicable provisions of Section 45 of the Trademark Act of 1946 read: “Commerce. The word ‘commerce’ means all commerce which may lawfully be regulated by Congress. ***** * “Use in commerce. For the purposes of this Act a mark shall be deemed to be used in commerce * * on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce.” [Emphasis ours.] It appears from the record that appellant operates a chain of automobile and truck service stations, all within the State of Ohio, some of which are located on federal highways, and that appellant’s services, although rendered only in the State of Ohio, embrace services to customers who are engaging in interstate commerce. The board found that appellant used its mark in the sale and advertising of automobile and truck maintenance services and that such services involved, in part, the delivery of gasoline and other automotive products to trucks or other vehicles stalled on highways. The board also apparently accepted the assertion of appellant that a large segment of activities in connection with its services is “subject to regulation by Congress under such acts as the Federal Wage and Hour Act, the Child Labor Law, the Dealer Act, etc., and through such agencies as The Federal Trade Commission.” Invoices on record show that customers domiciled in other states are billed for “Gasolines — Oils—Lubricants.” Appellant also introduced into the record a specimen GASTOWN cash bonus stamp book offered to induce retail customers to patronize GASTOWN SERVICE STATIONS regularly for GASTOWN products and services featured on the inside cover of the attached book. The stamp book showed regular sale of GASTOWN products and services to a retail customer not residing in the State of Ohio, the stamp book being redeemed from a West Virginia resident. Ray Carmosino, President of Gastown, Inc., testified that one service definitely evidenced by the stamp book “that is consistently rendered by all Gastown Service Station attendants is the cleaning, not only of windshields, but all other windows and the headlights of a customer’s car.” It is pertinent to here note that the provisions of the Trademark Act of 1946, hereinabove quoted, relating to the definition of “use in commerce” was amended by Public Law 87-772, approved October 9, 1962, so that the definition now reads, insofar as here material, that the mark shall be deemed to be “used in commerce”: “* * * on services when it is used or displayed in the sale or advertising of services and the servr ices are rendered in commerce, or the services are rendered in more than one State or in this and a foreign country and the person rendering the services is engaged in commerce in connection therewith.” The record clearly supports the findings of the board that the services rendered or performed by the appellant are confined to the State of Ohio. It is also apparent from the record that some of appellant’s customers have their legal situs in other states; are themselves engaged in interstate commerce when served by appellant in Ohio; are extended credit and billed for services in their respective domiciliary states. The narrow and precise issue is simply this: Where an operator of service stations provides automotive service and maintenance for customers who are traveling interstate on federal highways in the course of engaging in interstate commerce, is the operator rendering services “in commerce” within the meaning of Section 45 of the Lanham Act? We believe that this question must be answered in the affirmative. Part of the service rendered by the appellant at its service stations includes delivering gasoline and other automobile products to trucks or other vehicles stalled on highways. Obviously the automobiles and trucks could not travel at all without the gasoline. Such services directly affect interstate commerce. Therefore, since appellant’s mark is clearly “used * * in the sale * * * of services and the services are rendered in commerce”, the stated ground for refusing to register it must be reversed. In Pure Oil Co. v. Puritan Oil Co., 127 F.2d 6 (2d Cir. 1942), a defendant charged with trademark infringement operated a single filling station in Connecticut, from which it sold motor fuel and oils largely to residents of Connecticut, but it appeared that some part of the gasoline allegedly sold under an infringing mark crossed the state line. The court held in that case that assertion of federal jurisdiction under the TradeMark Act of 1905 on the ground that alleged infringing use was in “interstate commerce” was not so plainly unsubstantial as- to require dismissal of the complaint for lack of jurisdiction. In the course of the opinion reversing the District Court, Judge Learned Hand stated: “* * * Cars'come to the ‘service station’ from outside Connecticut to be filled; they carry away what they get and certainly some part of it crosses the border in their tanks. It is true that this is a small part of the defendant’s total sales—ap parently only about five per cent— but the amount does not matter if-pro ‘tanto the business violates the act.. Omitting irrelevant words, the section reads as follows: ‘Any person who shall * * * imitate any * * * trademark and affix the same to merchandise * * * or to labels, signs, prints, packages, wrappers or receptacles intended to be used * * * in connection with the sale of merchandise * * * and shall use * * * such * * * imitation in commerce among the several States.’ The defendant does affix an ‘imitation’ of the mark to ‘receptacles intended to be used * * in connection with the sale’ of gasoline in interstate commerce, and it does not strain the sense to say that in so attracting customers it ‘uses’ the ‘imitation’ in that commerce. Faced with the strict necessity of deciding, we should perhaps not say that that was the kind of ‘use’ intended; rather it would seem from the context that the ‘reeeptaclés’ or ‘signs’ which bear the mark must themselves move in interstate commerce. If they need not, the section would cover any use of a registered trade-mark which facilitated an interstate sale; a doubtful interpretation at best, which arguendo we reject. Nevertheless, it does not appear to us so untenable an interpretation as to make an assertion of jurisdiction based upon it ‘plainly unsubstantial.’ On the contrary, we think it a not implausible theory that so to use a mark is to ‘use’ it 4in commerce.’ There can be no doubt that Congress might have so declared had it been minded; the Trade-Mark Cases, 100 U.S. 82, 25 L.Ed. 550, do not stand in the way. The decision of a majority of this court in Treasure Imports, Inc., v. [Henry] Amdur [2 Cir.], 127 F.2d 3, does not conflict with our conclusion. The jurisdiction of the court under the Trade-Mark Act had only sales made before registration, to support, it.” [Emphasis ours.] ■ ,, See also Martino v. Michigan Window Cleaning Co., 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603; Steele et al. v. Bulova Watch Co., Inc., 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 252; Pure Food, Inc. v. Minute Maid Corporation, 214 F.2d 792 (5th Cir. 1952). Appellee has cited In re Bookbinder’s Restaurant, Inc., 240 F.2d 365, 44 CCPA 731, as controlling authority applicable to the factual situation here. The issue in Bookbinder’s was whether appellant’s services were “rendered in commerce” as required by sections 3 and 45 of the Trademark'Act of 1946. This court affirmed the Commissioner’s refusal of registration on the ground that the services in question were not “rendered in commerce,” holding that appellant’s services did not involve commerce which may lawfully be regulated by Congress within the meaning of the 1946 act since said services did not have a direct effect upon interstate commerce. We think the factual situation here is distinguishable from the factual situation in Bookbinder’s, ■ for as the court stated, “The record indicates that appellant operates a single restaurant in Philadelphia, Pennsylvania, and that the services relied on are rendered in that city’’ [emphasis ours], and “There are no affidavits or testimony of record and the application states merely that the mark is used ‘for restaurant, catering and banquet services.’ ” The court referred to the fact that in response to an inquiry by the examiner as to how appellant’s services were rendered in interstate commerce, appellant’s attorney made an unverified statement “that the services were offered to customers and prospective customers in states adjoining Pennsylvania ‘thereby inviting or inducing persons in other states to travel from such other states into Pennsylvania to obtain from applicant the aforesaid services at applicant’s place of business. Services are also rendered by selling and supplying cooked or prepared foods for transportation into and consumption in adjoining states such as New Jersey and Delaware, and such foods are so transported into such other states for the purposes stated,’ ” and observed that statements similar to the last one quoted appeared in appellant’s brief. No weight, however, was given to those unverified statements by the court in deciding Bookbinder’s. On the other hand, the present record shows that appellant operates a chain of automobile and truck service stations, some of which are located on federal highways. Some of appellant’s customers have their legal situs in other states, are engaged in interstate commerce when served by appellant in Ohio, and are extended credit and billed in their respective domiciliary states. We think those circumstances clearly establish that appellant’s services have a direct effect on interstate commerce. As stated in the opinion of the Court of Appeals, Fifth Circuit, in Bulova Watch Co., Inc. v. Steele et al., 194 F.2d 567, aff’d., 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 319 (1952) “It would seem that in the Lanham Trade Mark Act of 1946, the Congress intended to regulate interstate and foreign commerce to the full extent of its constitutional powers.” With this admonition in mind, we conclude that the activities of appellant were such that its mark is used in commerce within the meaning of section 45 of the Lanham Act. For these reasons we reverse the decision of the board. Reversed ALMOND, Judge, dissenting, with whom WORLEY, Chief Judge, joins. I entertain views relative to the resolution of the issue here which I cannot harmonize with the views expressed by the majority. The majority finds and states categorically that: “The record clearly supports the findings of the board that the services rendered or performed by the appellant are confined, to the State of Ohio.” (Emphasis supplied.) The indisputable facts are, bluntly stated, that the services have their origin and finality—their Alpha and Omega— solely and exclusively, within the territorial limits of a single state. This completely negates the possibility of a conclusion that the services “are rendered in commerce” within the purview of Section 45 of the Trademark Act of 1946. The collateral facts that “some of appellant’s customers have their legal situs in other states; are themselves engaged in interstate commerce when served by appellant in Ohio; are extended credit and billed for services in their respective domiciliary states,” have no qualifying impact on the salient fact that the services are completely performed and rendered in the State of Ohio. These collateral facts are totally irrelevant to a proper resolution of the issue here. The majority wrestles with futility in an attempt to distinguish the factual situation here from that which confronted this court in In re Bookbinder’s Restaurant, Inc., 240 F.2d 365, 44 CCPA 731. In my judgment Bookbinder’s, supra, is clearly apposite and is binding on this court unless and until it is judicially qualified or repudiated. A long line of Patent Office decisions has been predicated on it. If the majority considers Bookbinder’s, supra, wrongly decided or no longer efficaceous, it should be forthrightly set at naught and not emasculated through the abortive process of distinguishing it from a factual situation to which it is clearly apposite. Judicial abandonment of the stability of a precedent afforded by the salutary principles of stare decisis should not be accomplished by indirection. The majority opinion placed emphasis on the fact of a single restaurant in Bookbinder’s while we have a plurality of gas service stations here. I fail to see where the scope of service rendered in a single state bears any relevancy to the issue. The services, in toto, in both instances were confined to a single state. The majority depreciates the relevancy of Bookbinder’s by emphasizing that there were no affidavits or testimony of record relating to the extension of services beyond the borders of the situs state. Courts are neither expected nor required to administer the judicial process in a vacuum by closing their eyes to that which is inescapably obvious and recognized as fact by common consent. To require a sworn affidavit that people cross the river to come to Philadelphia from New Jersey would seem to me to border on the ridiculous. The court could not escape judicial notice of the proximity of Philadelphia to New Jersey and Delaware; the flow of traffic there-between; that people eat and seek out well known and highly advertised restaurants which cater to that purpose. Such services as those provided in Bookbinder’s, as well as those provided by appellant here, affect interstate commerce indirectly and collaterally but not directly. The fact that Congress may regulate the restaurant or the service stations in matters incidental to their operations in no wise impresses the services rendered in a single state with the aura of “rendered in commerce.” The majority imparts persuasive effect to the fact that some of appellant’s service stations are located on federal highways. I fail to perceive the slightest relevancy to the issue here. There is nothing in this record to indicate any federal ownership of any highways where stations are located. They simply have federal numbers. They are state highways constructed, maintained and policed by the state. The federal government is devoid of either exclusive or concurrent jurisdiction over them. “Federal highway” is a name without substance. It would not be indulgence in surmise to state that the customers in Bookbinder's traveled interstate over so-called “federal highways” to partake of the services rendered nor would it affect the rationale of that decision if all of the highways of ingress and egress accommodating the customers were stamped or marked “Federal highways.” It is inconceivable to me that Congress ever intended to substitute the activities of customers to relieve a trademark applicant of the requirement that the services of applicant be “rendered in commerce.” The applicant must perform the services “in more than one state.” The majority rely strongly on Pure Oil Co. v. Puritan Oil Co., 127 F.2d 6 (2d Cir. 1942). In my judgment that case is not in point here. The fact that gasoline is consumed in other states is irrelevant because there is no question of a mark for goods. The mark here is for services rendered only in Ohio. In Pure Oil Co., supra, the gasoline was sold under the trademark in issue and consumed in other states — obviously a transportation across state lines. Here the services are rendered in only one state and completed before any consumption of gasoline or any other activity occurs in interstate commerce. Here, as far as appellant is concerned, there has been no movement (performance of services) in more than one state. I am not persuaded, as the opinion of the majority would seem to indicate in effect, that the Congress in the exercise of its authority under the commerce clause of the Constitution ever intended that the definition of “use in commerce” in Section 45, respecting a service mark, should be so pre-emptively construed as to embrace a service merely collateral and incidental to and not directly affecting interstate commerce. As pointed out in the solicitor’s brief, the Senate hearings on H.R. 82, 78th Congress, one of the series of the Lanham trademark bills which led to the enactment of the Trademark Act of 1946, made it clear that the intent and purpose of the bill was to limit its application to commerce among the several states and to foreign commerce as distinguished from intrastate commerce which might affect commerce among the states. If it be a logical and supportable conclusion that appellant’s services affect interstate commerce within the ambit of Section 45, then the same may be said of the farmer with the roadside fruit ■stand, the operator of the roadside lunch counter and the filling station proprietor who wipes a windshield, all of whom cater to and serve the traveling public, ■both intra and interstate. I do not believe that the statute under consideration is susceptible to such a construction. I perceive a clear line of demarcation between such services performed for others engaged in interstate commerce and services actively rendered in commerce. I would affirm the decision of the board. . The Senate Report No. 2107, U.S.Code Congressional and Administrative News 1962, p. 2845, that accompanies Public Law 87-772 states that the Public Law 87-772 “is in large part a housekeeping measure, making minimal substantive changes in the trademark law.” Regarding the amendment to the Use in commerce provision, i. e. the 15th paragraph of section 45 of the Trademark Act of 1946, the Senate Report states: “The amendments to the 15th paragraph amplify the definition of use in commerce with respect to service marks.” (Emphasis ours.)

Opinion for the court filed by Circuit Judge HENDERSON. Separate opinion concurring in part and dissenting in part filed by Circuit Judge WILLIAMS. KAREN LeCRAFT HENDERSON, Circuit Judge: Appellant Daniel M. Byrd seeks reversal of the district court’s grant of summary judgment to the Environmental Protection Agency (EPA) on his claim that EPA violated the Federal Advisory Committee Act (FACA), 5 U.S.CApp. II §§ 1-15. Specifically, Byrd contends that a peer review panel convened by an EPA contractor, the Eastern Research Group (ERG), to update EPA’s interim benzene report constituted a federal “advisory committee” and therefore its proceedings were governed by FACA, with which it admittedly did not comply. Byrd seeks either reversal and a declaration that the panel’s proceedings violated FACA or, alternatively, remand for discovery pursuant to Fed.R.Civ.P. 56(f). EPA counters that Byrd lacks standing, his claim is now moot and he is wrong on the merits. We affirm for the reasons set forth below. I. BACKGROUND In 1985, EPA issued an interim report discussing the carcinogenic effects of benzene. By 1996, EPA had prepared a draft update of its interim benzene report (Benzene Update). See Sonawane Deck ¶¶ 2-5, Joint Appendix (JA) 173-75. Before finalizing the Benzene Update, EPA decided to subject it to external peer review. Under a contractual arrangement with EPA, ERG, a private environmental consulting firm, convened and conducted the peer review. See id. ¶5, JA 175. The contract required ERG to select a panel of qualified experts, organize a public meeting of the panel to discuss the proposed Benzene Update and compile and submit a report to EPA summarizing the panel’s assessment. See Statement of Work at 1-7, JA 184-90; Work Plan for Work Assignment No. 0-5 Contract No. 68-C6-0041, Expert Panel Peer Review of Benzene Risk Assessment Update (May 14, 1997) [hereinafter Work Plan], JA 199-204. In addition, the contract specified that EPA was to pay ERG a fixed sum and that ERG was to compensate the panel members. See Work Plan, JA 201. The contract also allowed EPA to determine the issues for the panel to evaluate and to comment in writing on ERG’s draft final report. See Statement of Work at 5, JA 188. Pursuant to the contract, EPA submitted to ERG for its consideration a list of twenty-four scientists who, in EPA’s view, possessed the professional credentials necessary to serve on the peer review panel. See JA 192-93 (list of potential panelists). From the list, ERG selected four individuals to be panelists. ERG also selected two panelists from its own database of consultants. See EPA Mem. from Barbara Cook to Billy Oden, Re: Work Plan/Cost Estimate Approval, ERG Contract No. 68-C6-0041, WA 0-5 (June 9, 1997) [hereinafter 6/9/97 Mem.], JA 220; 6/13/97 Letter, JA 221. EPA suggested no modifications to the list of panel members selected by ERG. See 6/9/97 Mem., JA 220; 6/13/97 Letter, JA 221; see also Statement of Work at 2, JA 185 (stating that “final approval of selected experts will be made by EPA”). On June 27,1997 EPA held a teleconference with ERG and the selected panelists, during which the panelists were instructed to prepare pre-meeting comments on the draft Benzene Update “specifically addressing a series of questions that [EPA] had provided” to ERG. Sonawane Decl. ¶ 7, JA 176. The panelists circulated their pre-meeting notes among themselves and provided a copy to EPA. See id. ¶ 8, JA 176. On June 30, 1997 EPA gave public notice in the Federal Register of the panel’s scheduled meeting. See Draft Carcinogenic Effects of Benzene: An Update, 62 Fed.Reg. 35,172, 35,172-73 (1997), JA 213-14. The Federal Register notice explained the purpose of the meeting and noted that the draft was publicly available on the Internet or in writing from EPA. The notice also stated that ERG was to provide “logistical support for the workshop” and that interested persons could attend and participate in the meeting and advised that written comments could be submitted to EPA during a 60-day period ending August 29, 1997. 62 Fed.Reg. at 35,173, JA 214. The panel meeting took place as scheduled on July 16, 1997. “The meeting was managed by ERG. Although several EPA employees who had been involved in developing the draft benzene update attended the meeting and effectively participated ..., no EPA employee or officer supervised the conduct of the meeting.” Byrd Decl. ¶ 8, JA 345. Byrd, a self-employed “consulting toxicologist and risk assessor,” id. ¶ 2, JA 342, also attended after “learn[ing] about the [July 16, 1997] meeting through EPA’s [public notice] in the Federal Register.” Id. ¶ 4, JA 344. Byrd participated in the meeting, twice expressing his views to the panel and others present. In addition, because of his concerns regarding the assumptions underlying the Benzene Update and his desire to be more informed, Byrd had earlier sought a copy of the panel members’ pre-meeting notes but had been rebuffed three times. See id. ¶¶ 11, 13-15, JA 345-47; Sonawane Decl. ¶¶ 12-13, JA 177-78. Byrd made no additional attempt at the meeting to secure the notes. After the meeting, Byrd timely submitted written comments to EPA on the draft Benzene Update. See Sonawane Decl. ¶ 15, JA 178. On August 22, 1997, Byrd filed this action alleging that the expert panel assembled by ERG was an “advisory committee” within the meaning of FACA . Byrd sought both declaratory relief and a use injunction barring EPA from using the panel’s work product. See Compl. ¶ 16. One month later, ERG submitted to EPA its final report, including its analysis of the draft Benzene Update. See Sonawane Decl. ¶ 14, JA 178; Sehalk Decl. ¶ 8, JA 219; Panel Report, JA 228-329. EPA “did not participate in ERG’s preparation of the final report.” Sonawane Decl. ¶ 14, JA 178. On October 10, 1997, almost three months after the meeting, Byrd’s counsel wrote a letter to EPA’s FOIA officer requesting a copy of the panel’s pre-meeting notes. See Letter from Thomas R. Bart-man to Jeralene Green, EPA, Re: Written Comments Prepared for or by Members of the Advisory Committee Convened July 16, 1997 (Oct. 10, 1997), JA 216. EPA provided all of the requested notes and invited Byrd to submit additional comments. See Letter from William H. Far-land, Director, Office of Research and Development, to Thomas R. Bartman, Re: FOIA Request HQ-Rin-00186-98 (Nov. 14, 1997), JA 215. Byrd, however, declined to do so. EPA then moved to dismiss Byrd’s complaint or, alternatively, for summary judgment. EPA challenged Byrd’s standing and, on the merits, argued that the peer review panel assembled by ERG was not an “advisory committee” un der FACA. The district court ruled in favor of EPA. Byrd v. EPA, C.A. No. 97-1923 (D.D.C. May 1, 1998) (Mem. and Order) [hereinafter Mem. & Order], JA 5-9. Although it “assum[ed] without deciding” that Byrd had standing, Mem. & Order at 2-3 n.l, JA 6-7, the district court held that a panel convened by a private contractor is not a FACA “advisory committee” as that term has been construed by the Supreme Court and by this Court. See id. at 2-5, JA 6-9 (citing Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989), and Food Chem. News v. Young, 900 F.2d 328 (D.C.Cir.), cert. denied, 498 U.S. 846, 111 S.Ct. 132, 112 L.Ed.2d 99 (1990)). Byrd timely filed his appeal. II. DISCUSSION A. Standing EPA first attacks Byrd’s standing to bring this action. Although the district court “assum[ed] without deciding” Byrd’s standing, Mem. & Order at 2-3 n.l, JA 6-7, its approach is incorrect in light of the Supreme Court’s recent holding in Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), that standing is a “threshold jurisdictional question” that cannot be assumed in resolving litigation. Id. at 1016. “Moreover, because Article III standing is always an indispensable element of the plaintiffs case, neither we nor the Congress can dispense with the requirement—even if its application renders a FACA violation irremediable in a particular case.” Natural Resources Defense Council v. Pena, 147 F.3d 1012, 1020 (D.C.Cir.1998) (NRDC); see also Federal Express Corp. v. Air Line Pilots Ass’n, 67 F.3d 961, 963 (D.C.Cir.1995) (“The requirement of a case or controversy is no less strict when a party is seeking a declaratory judgment than for any other relief.”). Therefore, we must decide EPA’s challenge to Byrd’s standing. The Steel Company holding requires us to focus on three elements: First and foremost, there must be alleged (and ultimately proven) an injury in fact—a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical.... Second, there must be causation—a fairly traceable connection between the plaintiffs injury and the complained-of conduct of the defendant.... And third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.... This triad of injury-in-fact, causation, and re-dressability comprises the core of Article Ill’s case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence. 118 S.Ct. at 1016-17 (quotations and citations omitted). According to the Supreme Court, a refusal to provide information to which one is entitled under FACA constitutes a cognizable injury sufficient to establish Article III standing. See Public Citizen, 491 U.S. at 449, 109 S.Ct. 2558 (“refusal to permit appellants to scrutinize [committee’s] activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue”). By denying Byrd timely access to the panel’s written comments and pre-meeting notes, EPA directly caused his informational injury. See Byrd Decl. at 6 ¶ 15; Sonawane Decl. at 5-6 ¶ 13, JA 177-78; Panel Report at 30, JA 260. EPA therefore can make no serious challenge to the injury and causation elements of Byrd’s standing. See Food Chem. News v. Department of Health & Human Servs., 980 F.2d 1468, 1469 (D.C.Cir.1992) (“[W]henever practicable, all [Federal Advisory Committee] materials must be available for public inspection and copying before or on the date of the advisory committee meeting to which they apply.”) (emphasis added). EPA does question whether Byrd can meet the redressability prong. It first contends that declaratory relief will no longer redress Byrd’s inability to obtain timely access to the panel’s documents because they have since been made available and the panel has completed its work and been disbanded. See Appellee’s Br. at 13, 21-27; Sonawane Decl. at 6 ¶ 14, JA 178; Schalk Decl. ¶ 8, JA 219. EPA also stresses that declaratory relief will not prevent additional informational injuries resulting from any future noncompliance with FACA. [See Appellee’s Br. at 21-27.] If Byrd had simply complained that EPA failed to release the documents he requested, his alleged injury could not be redressed by any action of this Court because he ultimately received the materials. Byrd’s injury, however, resulted from EPA’s failure to furnish him with the documents until long after they would have been of any use to him. Thus, contrary to EPA’s contentions, declaratory relief will redress Byrd’s injury because it will provide him with this Court’s declaration that the agency failed to comply with FACA; and such a declaration will give Byrd “ammunition for [his] attack on the Committee’s findings” in subsequent agency proceedings that make use of the Benzene Update. NRDC, 147 F.3d at 1026 n. 6. Such an attack might also prompt, in view of the importance placed on the Benzene Update by EPA, see Statement of Work at 1 (contracting with ERG to conduct “category 1 peer review of the draft benzene document”), JA 184; Sonawane Deck at 3 ¶ 4 (“ ‘Category 1’ peer review is used when major scientific or technical work products are being generated.... ”), JA 175, additional, FACA-compliant peer review on the issue. Moreover, declaratory relief might well cause EPA to reevaluate and change peer review practices not in conformity with FACA. Accordingly, we conclude Byrd has standing to maintain his action. B. Mootness EPA also contends that Byrd’s request for declaratory relief is moot because it has already given him the panel’s pre-meeting notes and it is not engaged in any ongoing violation of FACA. Nevertheless, “even the availability of a ‘partial remedy’ is ‘sufficient to prevent [a] case from being moot’.” Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 135 L.Ed.2d 453 (1996) (quoting Church of Scientology v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)). Because Byrd’s injury resulted not only from EPA’s failure to provide him materials but also from the tardiness of their eventual release, his injury would be mooted if EPA convened another panel to review the Benzene Update in compliance with FACA and provided him with all panel documents either before or at the meeting. Because EPA has not taken such action, declaratory relief would afford Byrd some relief and prevent his action from becoming moot. Byrd also argues that EPA has a policy of hiring contractors to conduct peer reviews without following FACA requirements. See Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C.Cir.1988) (“So long as an agency’s refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials, a party’s challenge to the policy or practice cannot be mooted by the release of the specific documents that prompted the suit.”). Thus, the tardy release of the documents does not render the case moot because Byrd’s challenge to the policy remains. See United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) (“[VJoluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. A controversy may remain to be settled in such circumstances, e.g., a dispute over the legality of the challenged practices. The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right. The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement.”) (citations omitted). C. The Merits FACA defines an “advisory committee” as any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof ... which is ... established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for ... one or more agencies or officers of the Federal Government. 5 U.S.CApp. II, § 3(2) (emphasis added). Because EPA did not “establish” nor did it -“utilize” the panel within the meaning of section 3(2) of FACA, we affirm the district court’s grant of summary judgment to EPA. The district court treated EPA’s motion for dismissal and summary judgment as a motion for summary judgment and on that basis granted the motion. See Mem. & Order at 2, JA 6. Relying on legislative history, Byrd suggests that “established” and “utilized” should be construed “in their most liberal sense, so that when an officer brings together a group by formal or informal means, by contract or other arrangement ... to obtain advice and information, such group is covered by [FACA].” Appellant’s Br. at 11 (quoting S.Rep. No. 92-1098, reprinted in V. McMurty, Fed. Advisory Comm. Act (Pub.L. 92-4.63), Source Book: Legislative History, Texts, and Other Documents at 158 (Cong. Res. Serv.1978)). The Supreme Court, however, in Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989), squarely rejected an expansive interpretation of the words, reading “established” and “utilized” narrowly to prevent FACA from sweeping more broadly than the Congress intended. See 491 U.S. at 452, 461, 109 S.Ct. 2558 (finding “utilized” a “wooly verb” and declining to adopt dictionary meanings of “established” and “utilized” in FACA); see also Animal Legal Defense Fund v. Shalala, 104 F.3d 424, 427 (D.C.Cir.) (noting “the term ‘utilized’ was given a very narrow interpretation by the Supreme Court”) (ALDF), cert. denied sub nom., National Academy of Sciences v. Animal Legal Defense, — U.S. -, 118 S.Ct. 367, 139 L.Ed.2d 285 (1997). In addition, the Court indicated that an advisory panel is “established” by an agency only if it is actually formed by the agency, see id. at 452, 456-57, 109 S.Ct. 2558, and “utilized” by an agency only if it is “amenable to ... strict management by agency officials,” id. at 457-58, 109 S.Ct. 2558. The Court, therefore, held FACA inapplicable to the American Bar Association Standing Committee on the Federal Judiciary, rejecting the argument that that committee had to comply with FACA simply because the Department of Justice regularly sought its input regarding judicial nominees. See id. at 452-67, 109 S.Ct. 2558. We have similarly interpreted “established” and “utilized.” For example, in Food Chemical News v. Young, 900 F.2d 328 (D.C.Cir.) cert. denied, 498 U.S. 846, 111 S.Ct. 132, 112 L.Ed.2d 99 (1990), we held that a panel assembled by the Federation of American Societies for Experimental Biologies (FASEB) pursuant to a formal contract to advise the Food and Drug Administration (FDA) on food safety was not an advisory committee subject to FACA. In so holding, we explained that “ ‘established’ indicates ‘a Government-formed advisory committee,’ while ‘utilized’ encompasses a group organized by a nongovernmental entity but nonetheless so ‘closely tied’ to an agency as to be amenable to ‘strict management by agency officials’.” Id. at 332-33 (quoting Public Citizen, 109 S.Ct. at 2568, 2570) (footnote omitted). We have interpreted “utilized” to encompass “management ... ‘by [any] semiprivate entity the Federal Government helped bring into being.’ ” Id. at 333 (quoting Public Citizen, 109 S.Ct. at 2571) (alteration original); see also ALDF, 104 F.3d at 427 (noting Supreme Court and this Circuit have adopted “ ‘management and control’ test to determine whether a committee not established by a government agency is nevertheless ‘utilized’ ”). This “second prong” of Food Chemical News “utilized” standard is inapplicable here because EPA is a governmental agency and ERG is not an entity the government had a role in creating. Thus, contrary to the broad standard suggested by Byrd, “the utilized test is a stringent standard, denoting ‘something along the lines of actual management or control of the advisory committee.’ ” ALDF, 104 F.3d at 430 (quoting Washington Legal Found. v. Sentencing Comm’n, 17 F.3d 1446, 1450 (D.C.Cir.1994)) (emphasis original). Indeed, this Court has held that participation by an agency or even an agency’s “significant influence” over a committee’s deliberations does not qualify as management and control such that the committee is utilized by the agency under FACA. See Washington Legal Found., 17 F.3d at 1451. Although this Court has held that an agency “establishes” a committee only if the agency forms the committee, see Food Chem. News, 900 F.2d at 332, Byrd contends that EPA “effectively created” the panel by “conceiving of the need for” it and implementing it by hiring ERG to handle the logistics. Appellant’s Br. at 16-17 (noting EPA’s presentation of panel as its own in Federal Register notice and at public meeting). According to Byrd, EPA’s actions are unlike those of the FDA in Food Chemical News in that, thei’e, the contractor (not the agency) “proposed using ad hoc groups of knowledgeable experts as a means of carrying out the contract.” Id. at 13 (quoting Br. of Resp’t in Opp’n, Food Chem. News, No.90-23 (in Supreme Ct. on pet. for writ of cert.)). But our analysis of whether an advisory committee has been “established” does not turn on a determination of who determines the methodology or operation of the peer review. Notably, the contractors in both Food Chemical News and here received a “task order” or a “work assignment” from the relevant agency defining the objective, the method and the scope of the studies to be performed. See Food Chem. News, 900 F.2d at 330; Statement of Work at 1-7, JA 184-90; Work Plan, JA 199-204. Moreover, because ERG selected the membership of the benzene panel, see 6/9/97 Mem., JA 220; 6/13/97 Letter, JA 221, Byrd cannot show that it was “ ‘a Government-formed advisory committee’ ” as required by our narrow interpretation of “established.” Food Chem. News, 900 F.2d at 332 (quoting Public Citizen, 109 S.Ct. at 2570). Byrd nevertheless argues that EPA established the panel because it retained the power to approve ERG’s panel member selections. Although EPA provided a list of suggested panel members to ERG, ERG was not required to select its members from that list and two of the panel members were not on the EPA list. See JA 192-93 (list of potential panelists); Work Plan, JA 201; 6/9/97 Mem., JA 220; 6/13/97 Letter, JA 221; Panel Report App. A, JA 275-76. Moreover, EPA approved ERG’s panel member selections without changes. See Sonawane Decl. ¶ 6, JA 176; 6/9/97 Mem., JA 220; 6/13/97 Letter, JA 221. Finally, ERG, not EPA, paid the panelists from its own funds. See Sehalk Decl. ¶ 4, JA 218. Although the contract between ERG and EPA afforded EPA significant potential authority in the panel selection process, EPA never fully exercised it. And there is no reason to assume that the threat of an EPA veto affected ERG’s panel selections. The result in this case might have been different if EPA had exercised its authority. The record, however, belies any claim that EPA in fact “established” the panel as required by FACA. The statute describes a panel that “is ... established,” 5 U.S.C.App. II, § 3(2), not one that could have been established by a government agency. Accordingly, EPA did not establish the benzene panel within the meaning of FACA. Byrd also contends that EPA “utilized” the benzene panel because it exercised much more control over it than the agencies in Food Chemical News and Washington Legal Foundation exercised over the committees at issue in those cases. See Appellant’s Br. at 14-15 (asserting EPA provided list of experts from which ERG was to select panel, reserved final authority to approve composition of panel, consulted with ERG on choice of chairman and agenda, presented charge to panel in pre-meeting conference call and reserved right to make written comments on ERG draft report). But even assuming EPA exercised more influence here than did the FDA or the DOJ in relation to their committees, EPA did not manage and control the benzene panel within FACA’s scope, keeping in mind that “the utilized test is a stringent standard, denoting ‘something along the lines of actual management or control of the advisory committee.’ ” ALDF, 104 F.3d at 430 (quoting Washington Legal Found., 17 F.3d at 1450) (emphasis original). As we held in Washington Legal Foundation, even “significant” influence does not represent the level of control necessary to establish that a government agency “utilized” an advisory panel. 17 F.3d at 1451 (“But influence is not control.”). Contrary to Byrd’s contention, the record shows that ERG in fact actually managed and controlled the selection of the panel’s membership. See Mem. & Order at 4 n.2, 5; Sonawane Decl. at 4, JA 176; 6/9/97 Mem., JA 220; 6/13/97 Letter, JA 221. Moreover, as even Byrd admits, The [panel’s July 16, 1997 public] meeting was managed by a contractor, ERG. Although several EPA employees who had been involved in developing the draft benzene update attended the meeting and effectively participated ..., no EPA employee or officer supervised the conduct of the meeting. Byrd Decl. ¶ 8, JA 345; see Sehalk Decl. ¶ 6, JA 219. Finally, ERG, rather than EPA, prepared the report of the panel’s proceedings. See Statement of Work at 5, JA188; Work Plan, JA 204. Although the contract authorized EPA to receive and comment on the draft report before it was finalized, the district court found “no evidence that EPA’s input, if any, resulted in changes being made to the final Expert Panel Report.” Mem. & Order at 4 n.2, JA 8; see Sonawane Decl. ¶ 14, JA 178 (EPA “did not participate in ERG’s preparation of the final report.”). Because our decision is based on what EPA in fact did, rather than on what it could have done under its contract with ERG, we conclude that EPA’s actions regarding the benzene panel do not constitute “actual management and control.” ALDF, 104 F.3d at 430; Washington Legal Found., 17 F.3d at 1450. Accordingly, the district court correctly determined that the benzene panel was not subject to the constraints of FACA because EPA neither “utilized” nor “established” it. For the foregoing reasons, the district court’s grant of summary judgment to the Environmental Protection Agency is Affirmed. . David Bayless, an EPA employee, opened the meeting by introducing the panel and repeating the questions EPA had posed to the panel. See Panel Report at 3-4, JA 233-34; Byrd Decl. ¶ 10, JA 345. . Byrd "frequently attendfs], and plan[s] to continue attending, meetings sponsored by [EPA] about the toxicology and risks of specific air pollutants.” Byrd Decl. ¶ 2, JA 342. . If the benzene panel was in fact an "advisory committee” subject to FACA as defined by 5 U.S.C.App. II § 3(2), both parties agree that the panel functioned in violation of FACA. Among other things, "the records, ... working papers ... or other documents which were made available to ... each advisory committee shall be available for public inspection and copying”, FACA, 5 U.S.C.App. II § 10(b), and "[djetailed minutes of each meeting of each advisory committee shall be kept.” Id. § 10(c). FACA also stipulates that "[t]here shall be designated an officer or employee of the Federal Government to chair or attend each meeting of each advisory committee.” Id. § 10(e). "No advisory committee shall conduct any meeting in the absence of that officer or employee.” Id. . Indeed, counsel for EPA conceded at oral argument that peer review meetings conducted by contractors without following FACA might occur in the future. See Tr. at 14-30, Byrd v. EPA, No. 98-5180 (D.C.Cir. Jan. 13, 1999). . We review the district court's grant of summary judgment de novo and sustain the decision below if "there is no genuine issue of material fact and the moving party is entitled to a judgement as a matter of law.” Fed. R.Civ.P. 56(c); see also Doe v. Gates, 981 F.2d 1316, 1322 (D.C.Cir.), cert. denied, 510 U.S. 928, 114 S.Ct. 337, 126 L.Ed.2d 282 (1993). We view the evidence in the light most favorable to the nonmoving party and ask "whether any reasonable jury could find in its favor.” Harbor Ins. Co. v. Schnabel Found. Co., 946 F.2d 930, 935 (D.C.Cir.1991). . After consulting with EPA, see Statement of Work at 1, JA 184, ERG also designated the panel’s chairman. See Sonawane Decl. at 5, JA 177; Schalk Deck, JA 218; 6/13/97 Letter, JA 221; Panel Report App. A, JA 275-76. . Although Byrd asserts that EPA exerted greater influence on the benzene panel than did the Justice Department on the Sentencing Commission’s Advisory Group in Washington Legal Foundation, see Reply Br. at 4-5, his assertion is debatable. In Washington Legal Foundation, the agency placed its own employees on the panel. See 17 F.3d at 1450-51. And even with agency employees on the panel, this Court nonetheless held that their influence did not meet the management and control level needed to trigger FACA. See id. at 1451. . Byrd alternatively sought remand for discovery pursuant to Fed.R.Civ.P. 56(0 (allowing discovery before summary judgment if “it appear[s] from the affidavits of a party opposing the motion that the part}' cannot for the reasons stated present by affidavit facts essential to justify the party opposition.”). See Decl. of Daniel M. Byrd Pursuant to Rule 56(0, JA 350-51. Byrd had to show what facts he intended to discover that would create a triable issue and why he could not produce them in opposition to the motion. See Hotel & Restaurant Employees Union, Local 25, et al. v. Attorney Gen. of the United States, 804 F.2d 1256, 1259 (D.C.Cir.1986). "It is well settled that [cjonclusory allegations unsupported by factual data will not create a triable issue of fact.” Exxon Corp. v. FTC, 663 F.2d 120, 126-27 (D.C.Cir.1980) (quotation omitted). Byrd merely alleged that "there may well be knowledge on Lhe part of EPA employees or undisclosed documents identifying additional contacts between EPA and the peer panel members,” Rule 56(1) Decl. at 1-2 ¶ 3, JA 350-51, a plainly conclu-sionary assertion without any supporting - facts. The district court did not abuse its discretion in denying Byrd discovery before granting EPA's summary judgment motion. See Exxon Corp., 663 F.2d at 126 (Rule 56(0 ruling reviewed for abuse of discretion). STEPHEN F. WILLIAMS, Circuit Judge, concurring in part and dissenting in part: I agree with the majority that we have jurisdiction, albeit on a different theory. On the merits, however, though the case is close, I would reverse. Jurisdiction rests, I think, entirely on EPA’s policy of using contractors to do peer reviews of risk assessments under arrangements like those involved in the Benzene Update that triggered this suit. Because Byrd is a regular participant in risk assessment panels, the threat of future injury from the policy is likely and imminent enough to justify standing. Jurisdiction based on the policy rather than the benzene episode suffers no mootness problem: EPA never claimed it would back away from the alleged policy; indeed, counsel at oral argument more or less admitted that the procedures used for benzene represented EPA’s ongoing policy. Unlike the future informational injuries that will flow from EPA’s refusal to apply FACA to its contractors’ consultative process, Byrd’s injury from EPA’s applying that view to the Benzene Update appears irredressable. His claim to the documents, of course, is mooted by EPA’s FOIA officer’s releasing them to him. And I do not see how a mere declaration that he should have had them at the time of the meeting constitutes redress for that loss. The majority suggests that a declaration would help Byrd attack this committee’s findings on benzene if EPA wishes to use them in some future proceeding. Perhaps this provides standing for one claiming threatened injury-in-fact from the outcome of this future proceeding, but Byrd made no such claim. Further, such a declaration would seem a telling weapon for Byrd in a hypothetical future proceeding only if he asserted that the documents belatedly turned over enabled him to poke a hole in the substance of the peer review, a hole that he was unable to perceive on a timely basis because of EPA’s original refusal to deliver them. But he has identified no such gap. Nor do I think NRDC v. Pena, 147 F.3d 1012, 1026 n. 6 (D.C.Cir.1998), see Maj. Op. at 244, extended “informational injury” so far. That footnote merely observed that denying an injunction against future use of findings from a FACA-defective proceeding would not render FACA en tirely toothless. One such tooth may be declaratory relief, and its utility in some cases may depend on the winner’s being able to use it to delegitimate such findings. But nothing in Pena suggested that the prospect of securing such a benefit from the court could alone support standing as a general matter. The majority’s language extending the “informational injury” re-dressable under FACA appears to assume that a highly theoretical injury is adequate for standing; the language is unnecessary to jurisdiction here. On the merits, I believe that FACA governs panels established under the challenged policy. Our precedent on this language is rather thin, but appears to say that an agency “establish[es]” a panel if it has real control over its personnel and subject matter at its inception. Thus in Food Chemical News v. Young, 900 F.2d 328, 333 (D.C.Cir.1990), we said that the agency had not “established” the panel because the contractor “proposed” it, “alone selected its members,” “set the panel’s agenda,” “scheduled its meetings,” and “would have reviewed the panel’s work.” Here EPA proposes the use of a panel, submits an initial list of suggested members to the contractor, retains veto power over the final membership, and sets the panel’s agenda. (The procedure used for the Benzene Update is evidently representative of EPA’s practice.) The veto power is key. That it was not used in the benzene episode does not much help EPA: not only may EPA exercise it in future applications of the policy, but the contractor was and is quite likely to take the fact of veto power into account in its selection decisions. Assuming that contractors will ignore this fact — as the majority appears to do, see Maj. Op. at 247 — seems akin to believing that the President takes no account of senators’ opinions when he nominates federal judges. Although the issue of whether EPA “established” the panel is certainly a close one, it seems to me inconsistent with the statute’s language and intent to exempt from FACA a panel controlled so closely in membership and purpose.

OPINION KING, Circuit Judge: The Commissioner of Social Security appeals the district court’s grant of summary judgment to the plaintiff, William L. Al-bright, in .this action for review of the final decision of the Social Security Administra tion (SSA) denying Albright’s claim for Disability Insurance Benefits (DIB) and additional disability benefits payable through the Supplemental Security Income (SSI) program. The judgment and accompanying order directed that Albright’s claim be remanded to the SSA for de novo consideration. The district court subsequently denied the Commissioner’s motion to alter or amend the judgment, and that ruling is also encompassed within this appeal. We conclude that the Commissioner, in denying Albright’s claim solely on the basis of a prior adverse adjudication involving an earlier time period, has interpreted too broadly our precedent on which the denial was premised. We therefore affirm the judgment of the court below. I. On April 17, 1991, Albright applied for DIB and SSI disability benefits, alleging that he had been unable to work since sustaining neck and lower back injuries from an on-the-job automobile accident on March 31, 1990. Albright asserted that injuries he received during a subsequent traffic mishap on August 24, 1990,, also contributed to his physical infirmities. The claims were ultimately heard by an ALJ, who issued a Decision and Order denying benefits. The ALJ declined to credit Albright’s testimony regarding the intensity of his pain, concluding from the objective medical evidence that any lingering impairment was “not severe,” and had not been since at least January 3, 1991. Because the duration of his qualifying impairment was, at most,approximately nine months, Albright was ineligible for a disability award. See 42 U.S.C. § 423(d)(1)(A) (impairment must be one “which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months”) .The ALJ’s finding of no disability applied to Albright’s condition through May 28, 1992, the date of the decision. Albright did not appeal the adverse ruling. In November and December 1992, Al-bright again filed SSI and DIB applications. The SSA considers these applications to be new claims, relating to Albright’s condition subsequent to the prior adjudication, ie., from May 29, 1992, onward. On October 26, 1994, a second ALJ issued a Decision and Order that again denied Albright’s claims. This time, however, the denial was premised not on an evaluation of Albright’s physical condition, but instead on Social Security Acquiescence Ruling 94-2(4), purported to be a codification of our holding in Lively v. Secretary of HHS, 820 F.2d 1391 (4th Cir.1987). AR 94-2(4) provides, in pertinent part: This Ruling applies only to .... finding[s] required at a step in the sequential evaluation process for determining disability ... made in a final decision by an Administrative Law Judge or the Appeals Council on a prior disability claim. When adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the Act as the prior claim, adjudicators must adopt such a finding from the final decision ... on the prior claim in determining whether the claimant is disabled ■with respect to the unadjudicated period unless there is new and material evidence relating to such a finding. Noting that Albright’s initial claims had failed at the second step of the sequential evaluation process, the second ALJ concluded that,absent new and material evidence regarding the severity of the alleged impairment, AR 94-2(4) dictated that Al-bright’s claims be again denied. The Appeals Council summarily denied Albright’s request for review, prompting the filing of this action in the district court. Albright moved for summary judgment, and the SSA cross-moved for judgment on the pleadings; the motions were referred to a magistrate judge. On June 20, 1997, the magistrate judge issued a report and recommendation to the effect that, in promulgating AR 94-2(4), the SSA had interpreted our holding in Lively too broadly. The district court adopted the magistrate judge’s findings and conclusions, and, on December 15, 1997, it entered an order granting summary judgment to Albright and remanding his claims to the SSA for de novo consideration. From that final order, and from the district court’s denial of the SSA’s subsequent motion to alter or amend the judgment, the Commissioner appeals. II. A. In Lively, the claimant was denied disability benefits at the fifth step of the evaluation process. See note 2, supra. Although Lively was found to lack the residual functional capacity (RFC) to return to his past work as a coal miner, he was adjudged capable, as of October 19,-1981, of performing “light” work. Approximately two weeks after the ALJ’s decision, Lively became 55 years of age, triggering a potential change of result with regard to the ultimate question of his disability. Lively’s birthday qualified him as a person of “advanced age,” mean-ing that his ability to do only light work would not preclude an award of benefits. Lively nevertheless waited more than two years — until December 14, 1988 — to file his second application for benefits. Surprisingly,the claim was denied; the second ALJ found that Lively had retained the RFC to perform his old job, which was classified as requiring “medium” exertion. Lively filed suit in the district court, which affirmed the agency’s decision. We reversed, opining that it was “utterly inconceivable that [Lively’s] condition had so improved in two weeks as to enable him to perform medium work.” Lively, 820 F.2d at 1892. We noted that there was “no evidence of any such miraculous improvement” that might provide “an independent basis to sustain a finding contrary to the final earlier finding.” Id. From our decision in Lively, the SSA distilled AR 94-2(4), which applies only to those claimants residing within the geographical con-fines of the Fourth Circuit. In Albright’s case, the Ruling erects an absolute bar to an award of benefits, unless he can produce new and material evidence that his impairment increased in severity by June 30, 1995, when his insured status expired. B. The SSA treats a claimant’s second or successive application for disability benefits as a claim apart from those earlier filed, at least to the extent that the most recent application alleges a previously unadjudicated period of disability. At each decisionmaking level, the agency recognizes the traditional rule that, absent an identity of claims, principles of claim preclusion (historically referred to as resjudi-cata) do not apply. The SSA's treatment of later-filed applications as separate claims is eminently logical and sensible, reflecting the reality that the mere passage of time often has a deleterious effect on a claimant’s physical or mental condition. As Judge Posner recently put it, “Res judicata bars attempts to relitigate the same claim, but a claim that one became disabled in 1990 is not the same as a claim that one became disabled in 1994.” Groves v. Apfel, 148 F.3d 809, 810 (7th Cir.1998). Contrary, then, to the principles of claim preclusion long understood to apply in Social Security cases, AR 94-2(4) operates to mechanistically merge two claims into one. Though the text of the Ruling speaks of “findings” and not “claims,” the findings to which it refers are the ultimate facts that the claimant must prove in order to demonstrate his entitlement to benefits. The claimant’s failure of proof as to but one of these facts dooms his claim and, in light of the Ruling’s preclusive effect, any subsequent claim. In practice, then, AR 94-2(4)earves out an exception to the general rule that separate claims are to be considered separately. This exception, by its nature inconsistent with the agency’s time-tested approach to preclusion, is then inconsistently applied so that only selected claimants— those residing within a particular geographical region — are subject to its dictates. Unfortunately for those claimants, the Ruling virtually always works to their detriment. Although AR 94-2(4) would, in theory, apply to any of the sequential evaluation findings without regard to whether the particular finding had previously been determined in the claimant’s favor, the very fact that the Ruling arises only in the context of a second or subsequent proceeding means that the claimant did not prevail on some critical facet of his earlier claim. In such a situation, the Ruling will almost always operate to ensure that the claimant will again fail at the same stage. It is the rare case indeed that will prove otherwise. Lively was that rare case. Through sheer fortuity, a finding that initially disqualified the claimant from an award of benefits convincingly demonstrated his entitlement thereto as of two weeks hence. Unlike the Ruling at issue in this case, however, the prior adjudication in Lively— though highly probative — was not conclusive. We took pains to point out that, had the agency produced substantial evidence of improvement in Lively’s condition “to indicate that [he] was capable of performing medium work,” the prior finding to the contrary need not have been sustained. Lively, 820 F.2d at 1392. Absent such evidence, however, common sense and logic dictated that Lively’s physical condition was unlikely to have improved significantly within two weeks. The logic so evident in Lively, however, applies with nowhere near the force in Albright’s situation. Athough we might state with some assurance that a claimant’s condition very likely remains unchanged within a discrete two-week period, we would grow ever less confident as the timeframe expands. Where, as here, the relevant period exceeds three years, our swagger becomes barely discernible. We think it imprudent to pronounce, as a matter of law, that Abright’s ability to perform in the workplace could not have diminished between May 28,1992 (when his initial claim was decided), and June 30, 1995 (when his insured status expired). Nonetheless, a strict application of AR 94-2(4) would ordain precisely that outcome. We therefore disagree with the Commissioner that Lively abrogated the established law of preclusion, thereby compelling us to embrace the potential inequities resulting therefrom. At its essence, Lively really has very little to do with preclusion. Athough we discussed the doctrine of res judicata generally, and more particularly its incorporation into the Social Security Act through 42 U.S.C. § 405(h), Lively is, not directly predicated on the statute, but on “[pjrinciples of finality and fundamental fairness drawn from § 405(h).” Id, (emphases added). The distinction is subtle, but important. Rather than signaling a sea change in the law of preclusion, the result in Lively is instead best understood as a practical illustration of the substantial evidence rule. In other words, we determined that the finding of a qualified and disinterested tribunal that Lively was capable of performing only light work as of a certain date was such an important and probative fact as to render the subsequent finding to the contrary unsupported by substantial evidence. To have held otherwise would have thwarted the legitimate expectations of claimants — and, indeed, society at large — that final agency adjudications should carry considerable weight. Even more importantly, judicial ratification of the SSA’s “bait-and-switch” approach to resolving Lively’s claim would have produced a result reasonably perceived as unjust and fundamentally unfair. We expect that few prospective claimants will one day find themselves in Lively’s shoes, but many may hazard the treacherous path now trod by Albright. Though we can hardly fault the Commissioner for attempting to faithfully adhere to our precedent, this dispute illustrates the pitfalls of extrapolating a legal rule of broad applicability from the result in a heavily fact-dependent case. III. Acquiescence Ruling 94-2(4) is not an accurate restatement of our decision in Lively. It follows, then, that the SSA is without justification to apply the Ruling to Albright’s claims. The judgment of the district court is therefore affirmed. AFFIRMED . See 20 C.F.R. § 404.1520(c) (1998) (impairment may be considered to be potentially disabling only if it is severe enough to "significantly limit[ ] [the claimant’s] physical or mental ability to do basic work activities”). Ordinarily, this is not a difficult hurdle for the claimant to clear: ”[A]n impairment can be considered as 'not severe’ only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability,to work,irrespective of age, education, or work experience.” Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir.1984) (emphases in original) (citation omitted). Nevertheless, the ALJ found that Albright had, as of January 3, 1991, "regained the ability to perform a full range of work at all exertional levels without any identifiable functional limitations of any sort[.]” . The SSA’s evaluation óf a disability claim is generally a five-step process. The claimant (1) must not be engaged in "substantial gainful activity,” i.e., currently working; and (2) must have a "severe” impairment that (3) meets or exceeds the "listings” of specified impairments,or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform his past work or (5)any other work. 20 C.F.R. § 404.1520 (1998). . See 20 C.F.R. § 404.1563(d) (1998) (defining persons 55 or older as being of "advanced age”); 20 C.F.R. Pari 404, Subpart P, App. 2, Rule 202.02 (1998) (specifying as disabled those persons of advanced age with-limited education and non-transferable skills, who can only perform light work). . See Office of Hearings and Appeals, Social Security Administration, Hearings, Appeals and Litigation Law Manual I-2-440(E)(2) (1994)(“[I]f the claimant continues to have insured status after the end of the previously unadjudicated period, the unadjudicated period presents a new issue, and the claimant is entitled to a hearing on that issue.”); Social Security Administration, Program Operations Manual System § GN03101.160(C)(1) (”[R]es judicata cannot be applied to the unadjudicat-ed period ... even if the claimant alleges the same onset date and impairment and there does not appear to be any change in the claimant’s condition.”). Of course, to the extent that a second or successive application seeks to relitigate a time period for which the claimant was previously found ineligible for benefits, the customary principles of preclusion apply with full force. Indeed, in the case at bar, Albright's second application alleged the onset of disability as being March 31, 1990, the same as in his first application. Accordingly, the second ALJ dismissed Albright’s claims insofar as they related to the period from March 31, 1990, through May 28, 1992 (the date of the final decision in the first proceeding). The ALJ’s dismissal was entirely proper, and it is not contested on appeal. . We have acknowledged, in analogous contexts, the validity of this "fresh start” approach to ascertain the preclusive effect of a prior adjudication: [Wjith regard to tax litigation, the Supreme Court has concluded that each tax year gives rise to a new cause of action. Therefore, “a judgment on the merits is res judi-cata as to any subsequent proceeding involving the same claim and the same tax year.”.... But as to later proceedings involving similar or identical claims relating to different tax years, the earlier judgment is not res judicata. Crowe v. Leeke, 550 F.2d 184, 187 (4th Cir.1977) (quoting Commissioner v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 92 L.Ed. 898 (1948)). . It might be argued that AR 94-2(4) is faithful to this aspect of Lively in that it permits the claimant to produce new and material evidence in contravention of the prior finding. It must be pointed out, however, that such an approach places an additional burden on the claimant to demonstrate that his evidence is both "new” and "material.” We believe that,depending on how those terms are construed, the threshold imposed by the Ruling unduly risks the exclusion of relevant and probative evidence that might otherwise determine the outcome in a particular case. It suffices to say that we find scant support for this approach in Lively, in which we suggested that evidence contravening the prior finding need only have been "not considered in the earlier proceeding.” Lively, 820 F.2d at 1392. . Cf. Rucker v. Chater, 92 F.3d 492, 495 (7th Cir.1996) (in light of a four-year interval between applications, differing conclusions concerning the claimant's residual functional capacity were "entirely plausible”). . Section 405(h) states simply that "[t]he findings and decision of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such hearing.” . See 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”). . We freely admit that we could have explained more clearly the basis for our holding in Lively. We recognize today, as we did in Lively v.Bowen, 858 F.2d 177 (4th Cir.1988) (Lively II), that we did not explicitly premise our reversal of the SSA's denial of benefits on the substantial evidence rule. Id. at 180 (asserting in dictum that, ”[a]s in Lively, we again decline to determine if the second ALJ finding is supported by substantial evidence”). Had Lively been nothing more than a straightforward application of the doctrines of issue and claim preclusion embodied in § 405(h), however,we need not have discussed an "exception” to those doctrines in the event that previously unconsidered evidence had come to light. The text of § 405(h) admits of no such exception, and we know of none. The Commissioner does possess the discretion, under certain circumstances, to reopen otherwise final decisions, including for “good cause” upon the presentation of new and material evidence. 20 C.F.R. §§ 404.989(a)(1),416.1489(a)(1). A discussion of the Commissioner's power to reopen,however, would have made no sense in Lively, which was merely a direct review of what the SSA had conceded was a new claim. Our reference in Lively to the lack of record support for the second ALJ’s decision can only be construed as a weighing of the evidence relative to the parties’ respective positions — a hallmark of substantial-evidence review.

CHOY, Circuit Judge: Larry Eugene Evans (“Evans”), an Arizona state prisoner convicted of first degree murder and armed robbery and sentenced to death, appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Evans alleges numerous trial and sentencing errors. We affirm his conviction, but reverse the sentence of death, and remand for resentencing. BACKGROUND On August 27, 1976, an Arizona jury found Evans guilty of first degree murder and armed robbery in connection with the robbery of a Phoenix bar and the shooting of the bartender. The trial judge subsequently sentenced Evans to death for the murder. The judge found one aggravating factor, a previous California conviction for attempted first degree robbery, and no factors mitigating against the imposition of the death penalty. Evans appealed his conviction and sentence to the Arizona Supreme Court, which affirmed the conviction but remanded for resentencing in order to allow Evans to present any evidence of mitigating circumstances. See State v. Evans, 120 Ariz. 158, 584 P.2d 1149 (1978). Upon resentencing, the judge found no mitigating circumstances and again sentenced Evans to death. On appeal, the Arizona Supreme Court affirmed this decision. See State v. Evans, 124 Ariz. 526, 606 P.2d 16 (1980). The United States Supreme Court denied certiorari. See Evans v. State, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 119 (1980). On April 30, 1980, Evans filed a petition for post-conviction relief in state court. When both the trial court and state supreme court denied this petition, he applied in federal district court for habeas relief. The court dismissed his petition on the ground that Evans had failed to exhaust available state remedies. On May 20, 1983, Evans filed a second state petition for post-conviction relief. In reviewing the trial court’s denial of his petition, the Arizona Supreme Court remanded for a hearing to ascertain the basis for the finding of the aggravating factor. After a hearing, the trial court concluded that sufficient proof existed to establish the existence of the aggravating factor. The state supreme court affirmed. See State v. Evans, 147 Ariz. 57, 708 P.2d 738 (1985). On April 11, 1986, Evans again filed a petition in federal district court for habeas relief. The district court denied his petition. Evans timely appeals from that decision. STANDARD OF REVIEW We review de novo a district court’s determinations with respect to a petition for writ of habeas corpus. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.1988) (en banc). “Furthermore, while the historical factual findings of a state court are presumed correct and will not be set aside unless lacking fair support in the record, we may give different legal weight to such facts.” Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir.1988) (citations omitted). DISCUSSION Evans raises several issues in this petition, three of which concern his conviction. We address these allegations of trial errors before turning to his sentencing objections. I. Trial Objections A. Cross-examination Evans claims that the trial court’s restriction of his cross-examination of the prosecution’s key witness violated his sixth amendment right to confront witnesses against him. While Evans was in jail awaiting trial, Tommy Ray Hammock (“Hammock”), Evans’ cellmate, told police that Evans had admitted to him his guilt in the matter and had provided details. At trial, Hammock testified against Evans, providing the only testimony directly implicating Evans in the murder. The sixth amendment confrontation clause requires “a certain threshold level of cross-examination.” Chipman v. Mercer, 628 F.2d 528, 530 (9th Cir.1980). The extent of cross-examination must be suffi cient to allow the jury to evaluate the witness’s “general credibility,” Hughes v. Raines, 641 F.2d 790, 792 (9th Cir.1981), and, in particular, to “appraise the biases and motivations of the witness,” United States v. McClintock, 748 F.2d 1278, 1290 (9th Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985) (quoting United States v. Bleckner, 601 F.2d 382, 385 (9th Cir.1979)). Yet, a defendant does not have a right to “cross-examination that is effective in whatever way, and to whatever extent, [he] might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985). The trial court may thus exclude cross-examination “that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). Furthermore, “the defendant’s right to attack the witness’s general credibility enjoys less protection than his right to develop the witness’s bias.” Reiger v. Christensen, 789 F.2d 1425, 1433 (9th Cir.1986). Yet, where the prosecution’s case depends upon the credibility of its key witness, “[d]efense counsel ... must be given a maximum opportunity to test the credibility of the witness.” United States v. Brady, 561 F.2d 1319, 1320 (9th Cir.1977). See United States v. Uramoto, 638 F.2d 84, 86 (9th Cir.1980). In the present case, the jury learned (1) that Hammock met Evans while both were in jail; (2) that Hammock and a friend had previously escaped from Adobe Mountain School in a stolen car that contained guns; (3) that police had subsequently chased these two and that Hammock’s friend had shot and killed a policeman; (4) that Hammock could have been charged with felony-murder but that he was charged only with a misdemeanor and received probation as a result of his testimony against Evans; (5) that Hammock had plans for burglarizing homes when arrested; (6) that Hammock had previously relayed to police incriminating statements made to him by an inmate charged with murder; and (7) that Hammock feared prison because he had previously “burned” certain inmates on deals. Evans contends that the failure to allow questioning as to the kinds of deals Hammock made that “burned” certain inmates was unconstitutional. Evans claims that this interrogation would have revealed that Hammock had previously testified against others in exchange for criminal immunity. As Evans acknowledges, such evidence referred to Hammock’s general credibility rather than his bias or motivation. This evidence may have indeed further impugned Hammock’s credibility, but it is cumulative given that Hammock had already testified that he had a special incentive to avoid prison and that his testimony would allow him to realize this goal. The nondisclosure of the precise nature of Hammock’s deals did not prevent the jury from adequately evaluating Hammock’s credibility. B. Removal of a Juror During voir dire, the court on its own motion excused a prospective juror who indicated that he believed the taking of a human life could not be justified under any circumstances. Evans asserts that the court’s action violated his sixth amendment right to an impartial jury selected from a cross-section of the community. This claim asserts a violation of two distinct rights: the right to a jury selected from a representative cross-section of the community, see Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 696-97, 42 L.Ed.2d 690 (1975), and the right to an impartial jury, see Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975). The Supreme Court has held that “the fair croso t ection requirement applies only to venires, not to petit juries.” Buchanan v. Kentucky, — U.S. -, 107 S.Ct. 2906, 2913, 97 L.Ed.2d 336 (1987); see Lockhart v. McCree, 476 U.S. 162, 173-74, 106 S.Ct. 1758, 1764-65, 90 L.Ed.2d 137 (1986). In the present case, the juror’s removal was part of the process of selecting the petit jury and did not involve the composition of the venire. Therefore, the fair cross-section right did not attach. See Harris v. Pulley, 852 F.2d 1546, 1563 (9th Cir.1988). A state violates the impartial jury requirement if it attempts to “execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment.” Adams v. Texas, 448 U.S. 38, 43, 100 S.Ct. 2521, 2525, 65 L.Ed.2d 581 (1980) (explaining Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)). In McCree, the Court rejected the argument that Adams and Witherspoon “have broad applicability outside the special context of capital sentencing.” 476 U.S. at 183, 106 S.Ct. at 1770. The Court in McCree denied a claim that the systematic exclusion of jurors who stated that they could not under any circumstances vote for the imposition of the death penalty violated the impartial jury requirement, for the jury’s role in this death penalty case concerned only the finding of facts and determination of guilt or innocence. Id. The Court indicated that outside the special context of criminal sentencing, the right to an “impartial jury consists of nothing more than ‘jurors who will conscientiously apply the law and find the facts.’ ” Id. at 178, 106 S.Ct. at 1767 (quoting Wainright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 851, 83 L.Ed.2d 841 (1985)) (emphasis omitted). In the present case, the jury played no role in Evans’ sentencing. Its sole function was to determine Evans’ guilt or innocence. Thus, the juror’s removal, even if for insufficient cause, did not violate Evans’ impartial jury right as Evans has not shown that as a result an impaneled juror failed to “conscientiously apply the law and find the facts.” Id. at 178, 106 S.Ct. at 1767. C. Intent Instruction At Evans’ trial, the jury received the following instruction on “intent”: The State must prove that the defendant had done an act which is forbidden by law and that he intended to do it. You may determine that the defendant intended to do the act if he did it voluntarily. The State does not have to prove that the defendant knew the act was forbidden by law. Evans claims that this instruction shifted to him the burden of disproving intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). A Sandstrom error arises when “a jury instruction ... creates a mandatory presumption, either conclusive or rebuttable, which shifts from the prosecution the burden of proving beyond a reasonable doubt an essential element of a criminal offense.” United States v. Washington, 819 F.2d 221, 225 (9th Cir.1987). In contrast, an instruction that merely establishes a “permissive inference as to an essential element” is valid “unless ‘the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.’ ” Id. (quoting Francis v. Franklin, 471 U.S. 307, 314-15, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985)). In determining the nature of an inference, the test is simply how “a reasonable juror could have interpreted the instruction.” Sandstrom, 442 U.S. at 514, 99 S.Ct. at 2454. This necessitates careful examination of “the words actually spoken to the jury.” Id. In the present case, the instruction “[y]ou may determine that the defendant intended to do the act if he did it voluntarily” states a permissive inference. The instruction informs the jury that it may decide whether the requisite intent exists if it first finds that the defendant’s acts were voluntary. The instruction thus allows the jury to infer intent and does not require a presumption of intent. Furthermore, the conclusion reached by this permissive inference is supported by common sense. II. Sentencing Objections A. Ineffective Assistance of Counsel Evans argues that his attorney’s failure to present evidence of mitigation at his first sentencing hearing constituted ineffective assistance of counsel, depriving him of his sixth amendment right to counsel. Specifically, Evans maintains that his attorney should have introduced evidence indicating that he suffered from an impaired mental state at the time of the offense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth criteria to determine when counsel’s ineffectiveness deprives a defendant of his sixth amendment right to counsel. First, counsel’s performance must be deficient. Id. at 687, 104 S.Ct. at 2064. “The proper standard for evaluating attorney performance is whether the assistance was reasonably effective under the circumstances.” Sturgis v. Goldsmith, 796 F.2d 1103, 1110 (9th Cir.1986). Thus, the court must examine the facts of the case under review. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. In conducting its inquiry, the court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. A defendant overcomes this presumption by showing that his attorney’s action could not be “ ‘considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Second, the defendant must establish prejudice resulting from his attorney’s conduct. Id. 466 U.S. at 692, 104 S.Ct. at 2067. “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. A court's determination of prejudice requires an assessment of “the totality of the evidence.” Id. at 695, 104 S.Ct. at 2068-2069. 1. Deficient performance Here, it is apparent that counsel’s performance was deficient. Ariz.Rev.Stat. § 13-703(G)(1) (formerly § 13-454(E)(1)) establishes as a mitigating factor whether: The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution. Documents available to Evans’ attorney prior to the first sentencing hearing plainly indicate that Evans had a history of mental problems that may have made this provision applicable. Evans’ California conviction records, used by the state to establish the aggravating circumstance, included a statement filed by the trial judge declaring that “Defendant is in need of psychiatric treatment.” In addition, the pre-sentence report noted that Evans had been incarcerated in Atascadero State Hospital, a California mental facility for inmates, and that Evans had spent time in the mental health facility at California's Vacaville prison. The FBI “rap sheet” attached to the pre-sentence report indicated that Evans had attempted suicide while in California’s Sole-dad prison. Despite this information, counsel conducted no investigation to ascertain the extent of any possible mental impairment. See Strickland, 466 U.S. at 691, 104 S.Ct. at 2066 (“[Cjounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”); Campbell v. Kincheloe, 829 F.2d 1453, 1463 (9th Cir.1987). In fact, at the sentencing hearing, the court informed counsel that the probation officer had requested Evans’ California prison records and reports but that they had not yet arrived, and offered to allow counsel to seek a continuance to await their arrival. However, counsel expressed no interest in viewing the contents of these documents and declined to request a continuance. Counsel’s failure to investigate Evans’ mental condition cannot be construed as a trial tactic. At sentencing, Evans’ counsel presented no evidence of mitigation. Arizona’s death penalty statute requires the imposition of death if one aggravating factor is found and no mitigating factors established. Ariz.Rev.Stat. § 13-703(E) (formerly § 13 — 454(D)); see State v. Richmond, 114 Ariz. 186, 560 P.2d 41, 53 (1976). The state’s attorney made this clear at the sentencing hearing. Thus, the omission of evidence of mitigation and the obvious existence of at least one aggravating factor, Evans’ previous California conviction, made the sentence of death inevitable. Under these circumstances, counsel’s failure to pursue the possibility of establishing Evans’ mental instability constituted deficient performance. Compare Darden v. Wainwright, 477 U.S. 168, 186, 106 S.Ct. 2464, 2470, 91 L.Ed.2d 144 (1986) (counsel’s reliance on plea for mercy reasonable because to present mitigating evidence would open the door to damaging rebuttal evidence); Campbell, 829 F.2d at 1462 (counsel’s decision not to present mitigating evidence was a sound trial tactic because to do so would allow the state to introduce damaging rebuttal evidence). 2. Prejudice A review of the totality of the evidence sufficiently undermines confidence in the outcome and establishes prejudice. At Evans’ resentencing hearing on January 5, 1979, more than two years after his first sentencing hearing, his new attorney sought a continuance to secure time to establish Evans’ mental imbalance as a mitigating factor. The attorney and the state agreed to allow the court to decide the existence of the mitigating factor on the basis of examinations conducted by two court-appointed psychiatrists, Dr. Cleary and Dr. Gray. Each psychiatrist filed a report with the court at the end of January 1979. They noted that Evans had received psychiatric treatment in Vacaville and had been incarcerated in Atascadero. They remarked that Evans heard “voices” and had a history of self-inflicted injuries. However, neither doctor could determine to a reasonable degree of medical certainty whether Evans suffered from diminished capacity at the time of the murder. Dr. Cleary wrote that he was “unable to give an opinion with any degree of medical certainty or probability because of -the lapse of time involved, and also because of the lack of medical and psychiatric information concerning any previous mental illnesses [Evans] may have had.” Dr. Cleary’s conclusion rests on two grounds. The first ground, the lapse of time between the crime and the examination, is directly attributable to the first attorney’s failure- to investigate Evans’ mental condition. Nevertheless, the state argues that because the second ground, the lack of prior documentation, is independent of prior counsel’s actions, no prejudice exists. However, after the filing of the psychiatrists’ reports, Evans’ counsel obtained two letters that Dr. Wilcox, a California psychiatrist, had written to a California court in July 1971. In these letters, Dr. Wilcox had diagnosed Evans as a schizophrenic and reported that Evans suffered from a “major emotional illness,” which made him unfit to stand trial. At the continuation of Evans’ resentencing hearing on March 12, 1979, Dr. Cleary testified that on the basis of this additional evidence “there was a strong possibility that [Evans] had some impairment of his ability to conform his conduct to the requirements of the law on the day in question.” However, he still could not form an opinion to a reasonable degree of medical certainty. Dr. Wilcox’s reports, first reviewed by Dr. Cleary after he had submitted his own report, apparently changed Dr. Cleary’s opinion that insufficient documentation of prior mental illness existed. This would mean that the lapse of time between the crime and psychiatric examination, which was directly attributable to prior counsel’s incompetence in failing to have Evans examined at the first sentencing, was the determinative factor in Dr. Cleary’s inability to give an opinion with any reasonable degree of medical certainty. An exchange between the judge and Dr. Cleary at the continuation of the resentencing hearing indicates that time was the critical factor: Court: Doctor as a result of your examination and report in January 1979, you did not make a diagnosis of schizophrenia? Cleary: That’s correct. Court: So, I take it that assuming the diagnosis [of schizophrenia] was made in 1971, it is not present as far as you are concerned, today? Cleary: Yes. Court: Or at the time you made your examination? Cleary: Yes. That’s why I can’t be more definite about it. Court: Therefore your opinion is not based on any degree of medical certainty? Cleary: That’s correct, your honor, (emphasis added). The contents of Dr. Wilcox's reports underscore the severity of Evans’ mental health problems and support a finding that failure to conduct a mental examination at the first sentencing hearing was prejudicial. In a July 19, 1971, letter, Dr. Wilcox stated that Evans suffered from “a major emotional illness, which significantly impaired] his ability to distinguish right from wrong and to appreciate the nature and content of his acts.” Dr. Wilcox further noted that Evans had “suffered from this illness for a long time.” In a July 19, 1971 letter, Dr. Wilcox diagnosed Evans as a “schizophrenic,” who had: displayed] a lifelong pattern of maladaption to his environment, which appears to be based primarily on disordered thought process and an inability to appropriately interchange with the environment on many occasions because of internal experiences which are at variance with the reality of the outside world. Dr. Wilcox predicted that “this condition will not improve without treatment,” finding it significant that Evans “had noted a marked improvement” while taking Stela-zine, an anti-psychotie medication. Dr. Wilcox’s reports establish Evans as a schizophrenic in need of medical help. While Evans apparently received treatment in prison, it appears he did not continue treatment upon his parole from prison on July 17, 1975. Upon his current incarceration, Evans has once again been given Stelazine. Dr. Wilcox’s observations and conclusions are buttressed by Dr. Gray’s findings. In his report, Dr. Gray, without the benefit of seeing Dr. Wilcox’s letters, opined that Evans’ “symptom pattern, clinical signs shown during this interview along with his record of past treatment with anti-psychotic medication point to a diagnosis of a major mental disorder of schizophrenia.” Dr. Gray continued to state that “[a]s schizophrenia is usually a chronic illness it is reasonable that at the time [Evans] committed the murder he was suffering from the illness.” Review of Dr. Wilcox’s letters provides evidence that failure to conduct a timely mental examination of Evans was prejudicial. Such evidence, combined with 1) Dr. Cleary’s assertion in his report that lapse of time was a factor hindering his ability to form an opinion as to Evans’ mental state at the time of the murder; 2) Dr. Cleary’s testimony at the continuation of the resen-tencing hearing, which reasonably indicates that lapse of time was the determinative factor; and 3) Dr. Gray’s independent confirmation of Dr. Wilcox’s diagnosis, establishes prejudice. B. Other Sentencing Objections Evans attacks the trial court’s finding of an aggravating factor at the initial sentencing and the court’s refusal to find any mitigating circumstances upon resentenc-ing. He also insists that the delay in arriving at a final sentence violated his sixth amendment speedy trial right. We find no merit to these claims. CONCLUSION We do not disturb Evans’ conviction. He was denied neither his right to confront witnesses, nor his right to an impartial jury selected from a cross-section of the community. Further, the judge correctly instructed the jury on intent. However, Evans’ death sentence is constitutionally infirm because his attorney’s failure to investigate and present evidence of mental instability at the original sentencing constituted ineffective assistance of counsel. Accordingly, we REVERSE the district court’s decision and direct the court to issue a writ of habeas corpus releasing Evans from the sentence of death and to remand the matter to the state court for resentencing. . Arizona’s death penalty statute includes categories of aggravating circumstances that support the imposition of the death penalty, see Ariz.Rev.Stat. § 13-703(F), and categories of mitigating circumstances that contend against the imposition of the death penalty, see Ariz. Rev. Stat. § 13-703(G) (formerly § 13 — 454(E)). In the present case, the trial court found the California conviction to constitute an aggravating circumstance within the meaning of section 13-703(F)(2), which states whether “[t]he defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person.” . Arizona’s death statute at the time of Evans’ sentencing limited mitigating factors to certain categories. The Arizona Supreme Court held that in light of intervening United States Supreme Court decisions these limitations on mitigating factors were unconstitutional. The court thus remanded for resentencing to allow Evans to present any evidence that might establish mitigating circumstances. Evans, 584 P.2d at 1153. . The district court refused to consider this claim because it held that Evans' failure to directly appeal the prospective juror’s dismissal on constitutional grounds constituted procedural default under Arizona law and precluded federal review. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). However, in Evans’ second state post-conviction proceeding, the court denied Evans’ petition on the merits, thus vitiating the procedural bar. See Engle v. Isaac, 456 U.S. 107, 135 n. 44, 102 S.Ct. 1558, 1575-76 n. 44, 71 L.Ed.2d 783 (1982). . No federal cases have been found explicitly analyzing the phrase "you may determine." However, one federal court has reviewed and upheld jury instructions that included this phrase. See Niziolek v. Ashe, 694 F.2d 282, 292 (1st Cir.1982) ("[Y]ou may determine the de fendant’s intent from any statement or act done or act omitted....”). . In contrast, the state sought to establish several aggravating factors. . The initial sentencing hearing was on September 20, 1976. The second sentencing hearing of January 5, 1979, was subsequently continued to March 12, 1979. .At the time, Evans was in a California prison and had been accused of felony possession of a knife while in prison. As a result of Dr. Wilcox’s reports, the felony charge against Evans was dropped. . Dr. Gray did not testify at the resentencing hearing. . The "it” here must refer to Evans’ mental capacity at the time of the crime. It could not refer to Evans’ capacity at the time of the resen-tencing hearing because that is when Dr. Cleary made his examination, and Dr. Cleary had no problem being definite in his diagnosis that Evans suffered no present mental impairment. .At the resentencing hearing, Dr. Cleary testified that Evans had been advised to have psychiatric treatment when he was released from prison. Dr. Cleary also testified that Evans was apparently not taking medication the day of the murder. . Nevertheless, Dr. Gray stated that he had insufficient information to form an opinion as to Evans’ mental state at the time of the murder because “[a] thorough review of the police departmental reports provided do not give sufficient information regarding defendant’s thinking processes, state of mind or behavior to retrospectively form an opinion.” In this comment, Dr. Gray attributes his inability to form an opinion to the lack of information describing Evans’ mental state at the time of the murder. (The police reports were the only documents available to Dr. Gray that were made around the time of the murder.) It is likely that a mental examination made much closer in time to the murder would have cured this defect.

MARTIN, Judge. This is an appeal from the decision of the Patent Office Trademark Trial and Appeal Board, 134 USPQ 465, sustaining an opposition to an application by appellant, B. Kuppenheimer & Co., for the registration of as a trademark for men’s and boys’ pants. Use of the mark in interstate commerce by appellant on the designated goods since February 1959 is alleged. Appellee, Kayser-Roth Corporation, is the registrant of SUPP-HOSE for hosiery. Mr. Austin Marvin Mark, assistant to appellee’s vice president, testified that SUPP-HOSE was first used by a predecessor of appellee on August 12, 1957. He also testified that SUPP-HOSE is used in connection with women’s stockings, supporting stockings and men’s .supporting socks, and that such goods .are available in department stores and .specialty shops throughout the country, .and all over the world. It was further testified by Mr. Mark that the sales at the wholesale level of SUPP-HOSE hosiery, both men’s and women’s, has risen .from approximately three hundred thousand dollars in 1957 to more than seven million dollars in 1960, while the sales .at the retail level has risen from approximately five hundred thousand dollars in 1957 to more than thirteen million dollars in 1960. Mr. Mark testified that appellee has advertised SUPP-HOSE stockings at an aggregate cost in excess of five million dollars for the period from 1957 to 1961. Appellant introduced by way of stipulation a photoprint of a typical advertising mat which is generally representative of the manner in which appellant has .advertised products bearing its trade.mark. The photoprint employed and referred to the advantages of “SuP-Pants.” The board in sustaining the opposition stated: “While the marks of the pax-ties must be considered in their entire-ties, it is apparent that the term ‘Sup-Pants’ in applicant’s mark is .a prominent feature thereof, and, * it has been used in advertising as a product mark separate and apart from the house mark ‘KUPPENHEIMER’. Applicant [appellant] contends that the mark ‘Supp-Hose’ is highly sixggestive of the character of opposer’s hosiery. However that may be, such a factor, in and of itself, would form no basis for holding that the term in question is a ‘weak’ mark. Moreover, in view of opposer’s extensive advertising and promotion of its mark, there can be no question but that it must have had a pronounced effect on the purchasing public as an indication of origin of opposex-’s goods. Under all the circumstances, it is concluded that purchasers familiar with op-poser’s ‘Supp-Hose’ hosiery, upon encountering the mark ‘KUPPEN-HEIMER Sup-Pants’ on pants, would reasonably assume that such product was another of opposer’s products or that opposer was in some way connected with the manufacture or sale thereof. Cf. Celanese Corporation of America v. E. I. du Pont de Nemours & Company [154 F.2d 143, 33 CCPA 857], 69 USPQ 69 (CCPA, 1946); * * * ” Appellant urges that KUPPENHEIMER is a well-known name in the men’s clothing field and that there is no evidence in the record from which it may be concluded that purchasers seeing KUPPENHEIMER SUP-PANTS would believe that products bearing this trademark were in some way associated with the opposer. It is also argued by appellant that the board, notwithstanding its statement that the marks of the parties must be considered in their entireties, actually compared SUP-PANTS with SUPP-HOSE in reaching its decision. Appellant further emphasizes that the mark sought to be registered is the composite mark KUPPENHEIMER SUP-PANTS, and not SUP-PANTS alone. It is also appellant’s position that the board erred in concluding that SUP-PANTS is the prominent portion of applicant’s trademark. Further, it urges that the board erred in considering that the expression SUP-PANTS is used independently of KUPPENHEIMER in advertising and apparently using that fact either to establish that SUP-PANTS is the predominant part of applicant’s mark or that the Patent Office by granting the registration sought, would in some way sanction what the board may consider an infringing use. Appellee, on the other hand, urges that SUP-PANTS is confusingly similar to SUPP-HOSE and that it is well settled that it is proper to consider separate portions of marks in order to consider the importance to be attached thereto. Appellee argues that the mere addition of appellant’s house mark KUPPENHEIMER to the trademark SUP-PANTS is insufficient to negate this likelihood of confusion. The trademark in issue here is not merely a house mark combined with another word. Appellant’s mark is a combination of the house mark KUPPEN-HEIMER which is completely integrated with the other portion of the mark, i. e., the same double “P” is used in both KUPPENHEIMER and SUP-PANTS. This combination has characteristics that make it an indivisible symbol rather than two divisible words used together as a trademark. It could be said at first glance that one gets the impression that the double “P” “belongs” to the word KUPPENHEIMER and that the word KUPPENHEIMER dominates the mark. Obviously, the same principles of trademark law might not apply here as if the trademark involved words wherein a house mark is one word and the other portion is some other word complete in itself, and the house mark word is thus divisible from the other word or words in the mark. Under these circumstances, and since the marks must be considered in their entireties, we believe that the concurrent use of appellant’s mark on its goods and use of appellee’s mark on its goods is not likely to result in confusion, deception or mistake even though we agree with the board that the articles of apparel, the goods of both parties, are so related that the use of marks having a close resemblance would be likely to cause confusion, deception or mistake. It immediately becomes apparent that the principles set forth in Celanese Corporation of America v. E. I. Du Pont De Nemours and Company, 154 F.2d 143, 33 CCPA 857, upon which the board relied in support of its opinion are not applicable to the factual situation here. In that case a majority of this court affirmed a decision of the Patent Office sustaining an appellee’s opposition to the application of appellant for registration of the word “Clarifoil,” printed in capital letters. The registered mark so relied upon by appellee is a composite mark consisting of the word “DuPont” arranged in an oval, below which oval is the notation “Clarapel.” It was conceded that the contesting marks were applied to merchandise of the same descriptive properties, and the record disclosed that part of the merchandise was substantially identical. In that case this court said “while trademarks must be considered as a whole in determining the question of similarity, and while the name ‘DuPont’ may be more conspicuous in appellee’s mark than ‘Clar-apel,’ nevertheless the public in-making pui-chases of the goods would be likely to remember and use the word ‘Clar-apel’ as indicating origin of the goods. For that reason, ‘Clar-apel’ must be regarded as the dominant portion of' appellee’s mark.” We think the factual situation before us distinguishes the instant case from the Celanese case since-the two portions of the mark are completely integrated and not readily separable. There is evidence that an advertisement of retailers carrying appellant’s line uses SUP-PANTS alone, i. e.: It is said, “A Picture is Worth Ton Thousand Words..." K uimenheimer SUf-jp,NTS ... but a thousand pictures cannot adequately describe the supreme comfort and untold advantages of SuP-Pants. Only a try-on can convince you of those. See for yourself this new trouser concept ... how it improves your posture, trims your silhouette. And, SuP-Pants are “everKreased” for permanent crease retention. From $GO SCHM1TT-ORLOW Four Fino Stores We cannot predicate our decision upon the wording of this advertisement. Our decision can properly be based only upon what the application shows as the trademark for which applicant wishes registration. If abuses develop in connection with the use of this mark, remedies are available to the abused. Also, we can conceive of a member of the public thinking of SUPP-HOSE when confronted with the trademark K.u nrj enheimer STJ¿íp\NTS or vice versa but that does not require that we hold that the trademarks that are actually in issue are likely to cause confusion, deception or mistake. The respective marks are different in appearance, sound and meaning. The difference in meaning is found in the different purposes for which the parties use their respective marks. Appellant uses its mark to indicate that its garment is so constructed that outside support, such as a belt to hold up the pants of a wearer, is unnecessary, while appellee uses its marks to indicate that stockings will fit tightly around the legs of a wearer and have healthful effects. In accordance with this analysis of the facts before us, we are compelled to reverse the decision of the board. Reversed. RICH, J., dissents. . Reg. No. 665,788 issued Aug. 12,1958 to a predecessor. SMITH, Judge (dissenting). It seems to me the issue here turns on the likelihood of confusion, mistake or deception arising from applicant’s use of its mark “SUP-PANTS” in view of opposer’s mark “SUPP-HOSE.” The majority arrives at its conclusion that such confusion, mistake or deception would not be likely by accepting appellant’s position that the mark for which registration is sought is a composite mark in which applicant’s well known mark “Kuppenheimer” is combined with the mark “SUP-PANTS” by means of the typographical design reproduced in the majority opinion in which the double “p” in the mark “Kuppenheimer” is utilized to provide the double “p” in the mark “SUP-PANTS.” However, I am unable to agree that the analysis of applicant’s mark, upon which the majority, opinion is based, reflects the probable, and I think the expected, use of the mark in the market place. The text of the advertisement of Schmitt-Orlow reproduced in the majority opinion states, “a thousand pictures cannot adequately describe the supreme comfort and untold advantages of SuP-Pants.” The text of this advertisement also states: “And, SuP-Pants are ‘everKreased’ for permanent crease retention.” While I agree with the majority that our decision should not be predicated solely upon the wording of such an advertisement, I would, however, give it weight as some evidence of what seems to be the probable and expected use of the mark “SUP-PANTS,” as an independent mark used to designate a particular product. At the very least, the advertisement creates such doubt in my mind that I would resolve the doubt in favor of the position of opposer for two reasons: 1) Opposer used its mark “SUPP-HOSE” prior to applicant’s use of its mark. The record shows opposer has been responsible for an aggressive and widespread merchandising and advertising campaign, the inevitable result of which, it seems to me, is that the vocabularies and habits of product identification of prospective purchasers have been conditioned to call for and identify such products as “SUPP-HOSE” or “SUP-PANTS.” As I see it, the wording of the Schmitt-Orlow advertisement, to which previous reference was made, reflects and should be treated as some evidence of this effect of opposer’s merchandising and advertising campaign. 2) There is likely very little purchaser identification of opposer’s company name as the name of the source of its product “SUPP-HOSE.” And, while applicant’s mark proposes to tie its company name “Kuppenheimer” with the product “SUP-PANTS,” the Schmitt-Orlow advertisement suggests that this effort when directed to the average purchaser is not likely to be wholly successful. Thus, it seems to me that a purchaser is encouraged to call for and purchase “SUP-PANTS.” Such a purchaser might well do so in the honest but mistaken belief that “SUP-PANTS” and “SUPP-HOSE” were goods of the same manufacturer. I would, therefore, affirm the decision of the Trademark Trial and Appeal Board.

HOFFMAN, District Judge. The claim in this case was confirmed by the board, and has been submitted to us without argument or observation, or the production of additional testimony. The grant is produced and proved, and the expediente is duly found in the archives of the former government. The occupation of the land by the grantee in 1840, two years before the title issued, is also shown; and it further appears that in 1842 another house was built by him, and that wheat, corn, beans, melons and potatoes were cultivated by him. There is nothing in the testimony to afford the slightest presumption of an abandonment of his grant by the grantee during the texistenee of the former government. The board, after an attentive examination of the grant and accompanying diseño, came to the conclusion that the intention of the governor was to grant by metes and bounds. The description of the boundaries is unusually precise,, and there is no reason to suppose that the quantity of land included within them exceeds that mentioned in the grant. We think that the decision of the board should be affirmed and a decree of confirmation entered.

ORDER A combined petition for rehearing and suggestion for rehearing in banc having been filed by the Cross-Appellant, an amicus curiae brief having been filed by Johnson & Johnson, and a response thereto having been invited by the court and !filed by the Appellant, and the petition for rehearing having been referred to the panel that heard the appeal, and thereafter the suggestion for rehearing in banc, amicus brief and response having been referred to the circuit judges who are authorized to request a poll whether to rehear the appeal in banc, and a poll having been requested, taken, and failed, it is ORDERED that the petition for rehearing be, and the same hereby is, DENIED; and it is further ORDERED that the suggestion for rehearing in banc be, and the same hereby is, DECLINED. Circuit Judge CLEVENGER concurs in a separate opinion. Circuit Judge LOURIE, with whom Circuit Judge PAULINE NEWMAN and Circuit Judge RADER join, dissents in a separate opinion. Circuit Judge BRYSON would rehear the appeal. Circuit Judge MICHEL, Circuit Judge SCHALL and Circuit Judge GAJARSA did not participate. The mandate of the court will issue on June 4,1998. CLEVENGER, Circuit Judge, concurring. I concur in the decision not to rehear this case in banc. As a member of the merits panel, I continue to subscribe to the opinion and decision of the . court that the state law causes of action pleaded in this ease are not preempted by federal patent law. As the panel opinion amply demonstrates, see Dow Chem. Co. v. Exxon Corp., 139 F.3d 1470, 1477-78 (Fed.Cir. 1998), the state law causes of action are based essentially on conduct in the state’s commercial marketplace that allegedly has harmed the plaintiff. It so happens that the alleged misconduct centers on an allegedly defective patent. Judge Lourie’s fears are unwarranted. A state law cause of action that pleads an issue that embraces a substantial question of federal patent law remains a state law cause, in terms of its derivation, but-it is—for purposes of the jurisdiction of a U.S. District Court under 28 U.S.C. § 1338(a) and our jurisdiction under 28 U.S.C. § 1295(a)(1)—a cause “arising under” the federal patent law. The Supreme Court said so in no uncertain terms: § 1338(a) jurisdiction ... extend[s] only to those eases in which a well-pleaded com plaint establishes either that federal patent law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 807-09, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (emphasis added). We, of course, followed that clear rule in Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc., 986 F.2d 476, 477-78, 25 USPQ2d 1798, 1799-1801 (Fed.Cir.1993). Therefore, a cause of action having a substantial question of federal patent law will lie in the United States District Courts in the first instance, or by removal from a state court, and review of the district court decision will he in this court. The values of national uniformity for which this court was created will thus be promoted when we decide whether the federal patent law issue in the state law cause of action has properly been decided. Indeed, our job is to assure such uniformity without trampling on the authority of states to protect the rights of their residents. Thus, Judge Lourie’s predictions of plaguelike harm to the tissue of federal patent law, and even to the states, are simply wrong. The sky will not fall on our patent system by our refusal to preempt the state law causes of action at issue here, which plead at their core a substantial question of federal patent law. Instead, we will have preserved the right of states, in our federal republic, to protect valid interests within their borders, in a system of judicial harmony that lodges adjudication of these cases in the federal district courts, with uniform review assured by the appellate jurisdiction of this court. There simply is no need to preempt the causes of action here in order to protect consistent federal judicial interpretation of the patent law. Judge Lourie’s opinion concedes as much, as it must, in the light of the jurisdictional precedent. The panel decision is therefore correct, and the court is correct in declining to rehear the ease in banc. ON SUGGESTION FOR REHEARING IN BANC LOURIE, Circuit Judge, with whom PAULINE NEWMAN and RADER, Circuit Judges, join, dissenting. For reasons stated in my dissent from the panel’s decision, I also dissent from the decision of the court not to hear this case in banc. A state law claim for unfair competition that is based essentially on inequitable conduct in the Patent and Trademark Office is preempted by federal law. There already is a remedy under federal law for inequitable conduct. It is unenforceability of the patent and possible attorney fees. A state law remedy conflicts with that federal remedy. A contrary decision frustrates federal law by placing in the hands of all the state courts, as well as all the federal regional circuits reviewing decisions of federal district courts whose jurisdiction is based on diversity of citizenship, determination whether there had been inequitable conduct and, if so, what the remedy should be for that offense. If the present panel decision is followed, the federal nature of the patent law may be splintered into a multitude of local rules, and the goal of uniform federal law, which the statute contemplates, and, in particular, this court was created to ensure, will be frustrated. A whole new field of litigation will be opened up. State courts will be rendering judgments that may be in conflict with a federal judgment. New questions of standing will have to be settled, determining whether unfair competition and hence inequitable conduct can be raised by one not accused of inftingement. Inequitable conduct has been spoken of as a “plague” in the patent system. That plague will now infect the states. The panel’s decision is a Pandora’s box full of mischief—unnecessary, unjustified, and unwise. Judge Clevenger’s assurances that the “sky will not fall” are not comforting. His analysis merely confirms the complexity of these issues and the depth of the morass that the panel opinion creates. It is far from clear that a state cause of action based essentially on inequitable conduct is removable to federal court. Removal requires a “civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a) (1994). Do the federal district courts have original jurisdiction of an action “for inequitable conduct”? There is no such federal cause of action, perhaps not even a case or controversy. Such claims are defenses to a claim of patent infringement. Moreover, if a claim asserting unfair competition under state law is originally brought in the federal courts, a federal court will have to apply state law with uncertain consequences for uniformity of federal patent law. While federal courts apply state law all the time, e.g., in diversity cases, they should not do so when a clear case for preemption exists. In any event, the panel opinion emphasized the “state law cause of action” and the “state court’s” role in adjudicating the dispute, Dow Chem. Co. v. Exxon Corp., 139 F.3d 1470, 1475 (Fed.Cir. 1998), rather than determining that this action “aris[es] under an Act of Congress relating to patents,” the ground relied on by the concurrence. Furthermore, contrary to the concurrence, the panel indicated that the issue of patent law “would only be ancillary to [the ‘state court’s’] central purpose ... [A] state court has authority to adjudicate patent questions so long as the action does not arise under the patent laws.” Id. at 1475. Neither Additive Controls nor Christianson v. Colt, cited by Judge Clevenger for the proposition that state actions involving substantial questions of federal patent law will both lie in federal district courts in the first instance and be appealable to this court, is relevant to the issue of preemption. Additive Controls dealt with federal jurisdiction over a state claim for business disparagement, holding that, because the claim was based on an allegation that a patentee falsely accused the plaintiff of infringing its patent, federal jurisdiction was proper. Preemption does not appear to have been at issue, nor is it clear that this case would be precedent for placing all state unfair competition claims based on inequitable conduct in federal court. (I note that the two judges subscribing to this dissent were on the panel that decided that case.) Moreover, Christianson v. Colt did not involve a question of state versus federal jurisdiction, but one federal circuit versus another. The result of that case was that jurisdiction lay in the Seventh Circuit, not the Federal Circuit. Preemption was not at issue. Moreover, while that case did define this court’s “arising under” jurisdiction, it did not eliminate the prospect of federal courts following state law even when the basic issue is one of federal patent law. Again, there is raised the specter of nonuniform patent law. One may logically thread one’s way through the jurisdictional mess that these issues involve, but the legal framework would be much simpler if questions of ineqüitable conduct and infringement threats were not to be adjudicated under state law because of preemption. Federal law provides remedies for these offenses. For these reasons, I believe the court should have taken this case in banc and overridden the panel’s judgment.

KANNE, Circuit Judge. Paul Hoffman worked for seventeen years at MCA, Inc. In 1994, MCA fired him.' He brought this suit alleging that he was fired because of his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The district court granted summary judgment to MCA. We affirm. I. History MCA is a syndicator that sells television programming to television stations around the country. In 1977, MCA hired Hoffman as a sales representative in its Chicago office. Hoffman was not an at-will employee—he worked under a series of contracts until MCA fired him in 1994. When he was fired he was 54 years old, the oldest sales representative, and the only one over 50. He was also a top revenue producer and MCA’s highest paid sales representative. His title was Vice President/Midwest Regional Manager. In 1988, Hoffman began reporting to James Kraus, who is twelve years younger than he. Kraus was the Executive Vice President/Director of Sales and Marketing. Kraus reported directly to MCA President Shelly Schwab. Hoffman and Kraus intermittently had disagreements until Hoffman was fired in 1994. The bulk of these disagreements took place in 1991, which was around the time when MCA was considering whether to renew Hoffman’s contract. One such disagreement occurred because Kraus learned that Hoffman had given “permission” for another sales representative to interview with a competitor despite that sales representative’s contractual obligation to continue working for MCA. Kraus documented the incident in a “confidential” memorandum to Schwab, meaning he did not place the memorandum in Hoffman’s personnel file as was the common practice at MCA. Hoffman denies that he gave permission for the sales representative to interview with the competitor. Kraus considered that he and Hoffman did not have a good business relationship. In 1991, he wrote Hoffman a memorandum outlining his general expectations, including in particular a desire for better communication between the two. A few weeks later, however, because of Hoffman’s failure to communicate his plans adequately, Kraus accused Hoffman of being “AWOL.” Dep. of James Michael Kraus at 96, Hoffman v. MCA, Inc., 974 F.Supp. 1149 (N.D.Ill.1997). It was routine for Hoffman to travel to make sales calls, but Kraus claims he did not know where Hoffman was for a few days. Kraus documented the incident in another confidential memorandum to Schwab. Hoffman claims that he told Kraus he would be away and that Kraus’s secretary’s telephone log documented a telephone call from Hoffman while he was on the road. Hoffman appeared to have problems with other MCA employees as well. Hoffman had supervisory authority over Kristine Orr, a newer sales representative. Orr performed poorly, possibly indicating that she was receiving inadequate training and supervision. She complained to Kraus that Hoffman was making her life a “living hell.” Kraus Dep. at 2. MCA removed her from Hoffman’s supervision and put her under the supervision of a Vice President in the New York office. Kraus documented the problems that led to the decision to place Orr under someone else’s supervision, but Hoffman says he was never told to change his behavior toward Orr. Hoffman believes that Kraus disliked him because of his age. Hoffman recalls several age-related statements that Kraus made in 1991. First, Hoffman says that he recalls Kraus calling another sales representative an “old-fashioned hack salesman,” Hoffman Dep. at 203, adding that Kraus “would like to get him out of there,” id. at 204. Hoffman also says that after he complained one day that his back was bothering him, Kraus responded that “you’re just getting old.” Id. at 219. In a similar incident, Hoffman declared he was having trouble reading a menu. Kraus responded, “Paul, you’re getting old.” Id. at 222. The conflict between Kraus and Hoffman seems to have lain dormant until 1993. Then, Kraus received a complaint from a station manager about Hoffman. The station manager said he was unable to develop a good relationship with Hoffman because of his negative, sarcastic, and insulting attitude. Hoffman does not deny that the station manager made the complaint; however, he says MCA never informed him about it. Kraus documented the complaint in a confidential memorandum to Schwab. In 1994, Kraus received another complaint about Hoffman, this time from a representative of WLS-TV in Chicago. She complained that Hoffman was insulting and unprofessional over the telephone, and she requested a different sales representative to service their account. Hoffman knew about the complaint; he called WLS to apologize. Aso in 1994, Hoffman attended a sales conference along with Kraus and Schwab. At the end of each day of the conference, Schwab asked each sales representative what he or she had done that day to generate sales leads. Schwab and Kraus say that Hoffman refused to participate in the spirit of the meeting, giving only negative or incomplete answers. Hoffman says he was trying; he simply had no leads to report. Hoffman recalls a couple age-related comments made around this time. At a business dinner, Kraus said to Hoffman, “Paul, you’re just getting old,” id. at 263-64, and asked when Hoffman might retire. Later that year, Kraus and Hoffman were at a business dinner when Hoffman remarked that he needed new glasses. Kraus said, “Hey, you’re just getting old.” Id. at 267. As the two were walking in the parking lot after dinner, Kraus said, “I think we’re going to have to get fresh legs in Chicago.” Id. The story reaches a crescendo at a June 1994 sales meeting. At the end of the meeting, Schwab asked, “Do any of you have any ideas that will help sell our product?” Hoffman’s Resp. to MCA’s Local Rule 12(M) Statement Exh. H. Hoffman answered, “Does management feel we are doing a good job covering the various broadcast groups?” Id. Kraus immediately retorted, “That’s an indictment of management.” Hoffman Dep. at 403. Schwab later agreed with Kraus that he interpreted the statement to be a criticism of management. Hoffman understood that he had offended Schwab; he wrote Schwab a letter acknowledging that his question had prompted “some animosity towards me.” Decl. of Shelly Schwab at 4. Hoffman invited Schwab to contact him to discuss the matter further. Kraus sent Schwab a memorandum describing his own reaction to Hoffman’s question. A month later, Schwab decided to fire Hoffman “[b]ased on Hoffman’s conduct at the June, 1994, sales meeting, which was the culmination of Hoffman’s ongoing problem with disruptive behavior.” Id. at 4. Schwab sent Kraus to tell Hoffman that he need not continue to perform under his contract. MCA immediately replaced Hoffman with a 37-year-old sales representative from within the company. Hoffman sued under the ADEA alleging that MCA fired him because of his age. The district court granted MCA’s motion for summary judgment. Hoffman appeals. II. Analysis A. Standard of Review We review a district court’s decision to grant summary judgment de novo, drawing our own conclusions of law and fact from the record before us. See Thiele v. Norfolk & W. Ry. Co., 68 F.3d 179, 181 (7th Cir.1995). Summary judgment is propér where “the pleadings, dépositions, 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 mattér of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, neither “the mere existence of some alleged factual dispute between the parties,” id. at 247, 106 S.Ct. 2505, nor the existence of “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), is sufficient to defeat a motion for summary judgment. B. ADEA Analysis Hoffman believes that MCA fired him because of his age in violation of the ADEA, 29 U.S.C. § 621 et seq. The ADEA makes it “unlawful for an employer ... to discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a). Hoffman attempts to prove a violation of the ADEA in two ways—by direct proof and by the well-known McDonnell Douglas burden shifting method. We address each in turn. 1. Direct Proof To succeed under the direct proof method, Hoffman must show that age was a determining factor in MCA’s decision to fire him. In other words, he must show that but for his age, MCA would not have fired him. See Mills v. First Fed. Sav. & Loan Ass’n, 83 F.3d 833, 841 (7th Cir.1996). Sometimes, remarks by an employer can be direct proof of discriminatory intent. But “[r]emarks at work that are based on [age] stereotypes do not inevitably prove that [age] played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her [age] in making its decision.” Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Although Price Waterhouse was a sex discrimination ease, we have applied the same requirement to remarks in ADEA eases. See Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1403 (7th Cir.1996) (“[B]efore seemingly stray workplace remarks will qualify as direct evidence of discrimination, the plaintiff must show that the remarks “were related to the employment decision in question.’” (quoting McCarthy v. Kemper Life Ins. Cos., 924 F,2d 683, 686-87 (7th Cir.1991))); Robinson v. PPG Indus., 23 F.3d 1159, 1165-66 (7th Cir.1994). MCA is quick to point out that the comments were made by Kraus, while Schwab actually made the decision to fire Hoffman. Normally the plaintiff must prove that the decision maker uttered the remarks. See Stopka v. Alliance of Am. Insurers, 141 F.3d 681, 688 (7th Cir.1998) (“When a plaintiff proceeds under the direct proof method, allegedly discriminatory statements are relevant ... only if they are both made by a decisionmaker and related to the employment decision at issue.”); Willis v. Marion County Auditor’s Office, 118 F.3d 542 (7th Cir.1997). But if a plaintiff can show that the attitudes of the person who made the remarks tainted the decision maker’s judgment, the remarks can be relevant to prove discrimination. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990) (Unbiased decision maker’s decision tainted by age-biased committee’s recommendation.); cf. Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th Cir.1997) (not imputing inculpatory statements of others to decision maker absent evidence that these other employees had any influence over decision maker); Willis, 118 F.3d at 546-47 (While supervisor may have harbored age animus, there was no evidence that the decision maker personally harbored age animus or was tainted by supervisor’s attitudes.). Hoffman has put forth evidence both that Kraus was his supervisor and that Kraus wrote a series of memoranda to Schwab about Hoffman’s performance. Because this case is before us on summary judgment, we assume that any discriminatory intent on Kraus’s part tainted Schwab’s decision, making Kraus’s remarks relevant to proving that Schwab’s decision was unlawful. As we described above, Kraus said to Hoffman several times, “you’re getting old.” Kraus made these comments in casual settings, often after Hoffman complained about some ache or pain. Once Kraus said “you’re getting old” after Hoffman was unable to read a menu without his glasses. Even 'viewing these comments in the light most favor-' able to Hoffman, we cannot say that the remarks were anything more than a truism. Hoffman was indeed aging, and Kraus responded with the benign and common retort, “you’re getting old.” Certainly the ease would be different if these comments were in response to the question, “why are you reducing my workload?” or “why was X promoted instead of me?” In those cases the comments would be related to an employment decision. What we have here, though, is conversational jabs in a social setting. This is not evidence of intent to fire Hoffman because of his age. In July 1994, the same month Hoffman was fired, Kraus said to Hoffman, “I think we’re going to have to get fresh legs in Chicago.” Hoffman Dep. at 267. This line of conversation ended, and Hoffman did not know exactly to what Kraus was referring. The statement is ambiguous as to what kind of person “fresh legs” describes: “fresh” could mean a young person or a person new to Chicago. Since we are reviewing a summary judgment decision, we take the reading most favorable to Hoffman, that “fresh legs” means a young person. However, even taking the statement to mean “we need a young person in Chicago” we cannot say that the statement is linked to the decision to fire Hoffman. Kraus could have been talking about hiring additional personnel, not replacing Hoffman. We do not even know that Kraus was referring to the sales force—he may have been talking about some other position. Simply put, the statement is too vague for us to read it as inculpating MCA. It is not evidence of age discrimination. Lastly, Hoffman points to a remark that Kraus made in 1990 concerning another sales representative. Kraus referred to this man as an “old-fashioned hack salesman,” adding that “I’d like to get him out of here.” Hoffman Dep. at 203-04. These statements do not demonstrate Kraus’s discriminatory intent to fire Hoffman because of his age. First, they do not even refer to Hoffman-they refer to another sales representative. Second, they do not refer to the sales representative’s age—they refer to his style. Hoffman himself explained in his deposition that “old-fashioned hack salesman” means someone who is “out of step with the business, out of sync with it.” Hoffman Dep. at 204. The remark is not probative of intent to discriminate against Hoffman based on his age. Hoffman has not provided other direct evidence of MCA’s intent to fire him because of his age. The statements in the record do not relate to the decision to fire Hoffman. At most, they evidence a recognition of his age. Thus, we cannot say that “but for” Hoffman’s age, MCA would not have fired him. The district court properly granted summary judgment to MCA under the direct method of proving an ADEA violation. 2. McDonnell Douglas Hoffman has also. made an attempt at the burden-shifting method of proving age discrimination that we have adapted from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Hoffman must make out a prima facie case of age discrimination by showing that (1) he is within the protected class; (2) he was performing his job to the employer’s legitimate expectations; (3) he was disr charged; and (4) his employer sought a replacement. See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir.1994). If he does so, he has created a rebuttable presumption of discrimination, and the burden shifts to MCA to articulate a nondiscriminatory reason for firing him. See id. If MCA does so, the burden shifts back to Hoffman to show that MCA’s proffered reason is pretextual. A pretextual reason “means a lie, specifically a phony reason for some action.” Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.1995). If Hoffman shows MCA’s proffered reason is pretextual, he “need not also come forward with further evidence of intentional discrimination to survive summary judgment. [His] proof would at that point be suffíciérit to support an inference that the company’s real reason was discriminatory.” Fuka, 82 F.3d at 1404. If he raises an inference of discrimination he has not won his case. He has merely produced enough evidence to defeat summary judgment and proceed to trial. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Throughout this process, the burden of persuasion to establish discrimination remains always with the plaintiff. See id. at 507, 113 S.Ct. 2742. In the district court there was some disagreement over whether Hoffman made out the second element of the prima facie case, whether he was performing to MCA’s legitimate expectations. MCA chose to forego that issue on appeal because “MCA’s argument that Hoffman has failed to demonstrate pretext subsumes its argument that Hoffman has failed to show he was meeting MCA’s legitimate expectations.” Brief for Appellee at 15 n. 2. We assume, because the parties do, that Hoffman made out a prima facie case creating a presumption that MCA fired him because of his age. MCA asserts on appeal (as it did in the district court) that Schwab fired Hoffman “[b]ased on Hoffman’s conduct at the June, 1994, sales meeting, which was the culmination of Hoffman’s on-going problem with disruptive behavior.” Schwab Decl. at 4. MCA insists that Schwab’s statement means he fired Hoffman for his behavior at the sales meeting alone,. and it asks throughout its brief that we confine our analysis to the legitimacy of this reason only. It is disingenuous for MCA to characterize the sales meeting as the sole reason for firing Hoffman when MCA repeatedly uses Schwab’s wording shown above, which references “Hoffman’s on-going problem with disruptive behavior.” We interpret Schwab’s statement to mean that Hoffman was fired for a history of disruptive' behavior that continued until and included his behavior at the sales meeting. MCA also asks that we confine our analysis to Schwab only, disregarding any evidence about Kraus because Schwab alone made the decision to fire Hoffman. It is true that Schwab alone decided to fire Hoffman, but Kraus’s memoranda to Schwab regarding Hoffman and the conversations between Schwab and Kraus that we know about suggest that any age animus on Kraus’s part could have tainted Schwab’s decision. See supra part II.B.1; see also Shager, 913 F.2d at 405. Because this case is before us on summary judgment, we assume (as we did in evaluating Hoffman’s direct evidence) that any age animus of Kraus’s tainted Schwab’s decision. We now turn to MCA’s proffered reason, ongoing disruptive behavior culminating in the sales meeting, to decide whether Hoffman has shown that it is either “a lie” or “phony.” Russell, 51 F.3d at 68. Again, we are not looking for poor business , judgment. See Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1291 (7th Cir.1997). We are asking whether MCA honestly believes its own reason for firing Hoffman. The parties agree that the June 1994 sales meeting deserves special scrutiny, as it was the final event in the litany of disruptive conduct that MCA recites. The parties also agree about what happened at the sales meeting and afterwards. As we described, the sales meeting was the finale to a workshop designed to motivate the sales force. Towards the end of the last day, Schwab asked whether anyone present had anything to say to further the sales effort. Hoffman responded, “Does management feel we are doing a good job covering the various broadcast groups?” Hoffman’s Resp. to MCA’s Local Rule 12(M) Statement Exh. H. Kraus jumped up and said, “That’s an indictment of management.” Hoffman Dep. at 403. Schwab testified in his deposition that he did not say so at the meeting, but he agreed with Kraus. Hoffman knew he had upset Schwab. He wrote a letter to Schwab acknowledging that his statement had caused some animosity. He also asked Schwab to respond if he felt negatively about the incident. What Hoffman challenges is the reasonableness of Schwab’s reaction to his comment. Hoffman continues to assert that his comment was benign, he did not intend to make waves, and Schwab was wrong to interpret it otherwise. Quite clearly, however, our job is not to judge the sensibilities of decision makers or to ask whether their decisions make good business sense. See Bahl, 115 F.3d at 1291. All we ask is whether the decision maker honestly relied on the proffered reason for firing the employee. See id. In light of the fact that Hoffman himself acknowledged that his question upset Schwab, we cannot say that Hoffman has shown this reason to be pretextual. Hoffman also tries to show pretext by arguing that he was not treated the same as other, younger sales representatives in his office. He points to various facts to support this: Kraus did not use confidential memoranda to document problems with other sales representatives; Kraus personally traveled to Rockford to smooth over a relationship between a younger sales representative and a station manager; some sales representatives received written warnings about their performance before they were disciplined; and other sales representatives were put on probation before they were fired. Assuming all this is true for purposes of summary judgment, it does not lead to the conclusion that MCA is lying about the reason for firing Hoffman. These other events all related to lower-level employees at MCA. Hoffman was a Vice President and Regional Manager. MCA could reasonably expect a higher level of professionalism from Hoffman with less need for supervision than it could expect from less experienced and lower-ranking sales representatives. See Denisi v. Dominick’s Finer Foods, Inc., 99 F.3d 860, 867 (7th Cir.1996) (refusing to find pretext based on different treatment of younger employees when younger employees were not similarly situated). We cannot say that MCA’s different treatment of less experienced and lower-ranking sales representatives means that MCA’s proffered reason for firing Hoffman is pretextual. Next, Hoffman directs us to the same ágerelated comments that we considered and rejected as direct proof of discrimination. Hoffman is correct that sometimes remarks not directly related to the employment decision can be probative of discriminatory intent even when they do not constitute direct evidence of discrimination. See Huff v. UARCO, Inc., 122 F.3d 374, 385 (7th Cir.1997). Standing alone, however, these statements are insufficient to establish pretext. See id. We reject the statements here for substantially the same reasons as given above for rejecting them as direct proof of discrimination. Even excluding the fact that the statements do not relate to the employment decision, they do not give rise to an inference of age animus. The comments like, “you’re getting old” were social banter, nothing more. The comment about getting “fresh legs” in Chicago was very vague, and the comment referring to another employee as an “old-fashioned hack salesman” did not, by Hoffman’s admission, refer to age. As a collective, the comments do not establish that MCA is lying about its reason to fire Hoffman. Finally, Hoffman disputes the underlying factual bases for several of the events in the “on-going problem with disruptive behavior” that MCA relies on as part of the reason for firing Hoffman. None of these factual dis putes suggests that MCA’s reason to fire Hoffman was pretextual. See Denisi, 99 F.3d at 867. In fact, Hoffman admits that station managers complained about him and that his behavior at the June 1994 meeting offended Schwab. Small factual disputes about the underlying events that made up the ongoing problem could only create the “metaphysical” kind of doubt that the Supreme Court decried in Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. Hoffman has not shown that MCA did not honestly fire him for his disruptive behavior culminating in the June 1994 sales meeting. Summary judgment is proper for MCA. See also Denisi, 99 F.3d at 866 n. 7 (“Despite Mr. Denisi’s [attempt to create factual issues], it remains uneontroverted that [the employer] had ample grounds to find his performance substandard____ [The employer] had sufficient evidence of poor performance ... to justify its discharge.”). For the foregoing reasons, we Affirm the district court’s decision to grant summary judgment to MCA. . The parties never agreed on the fourth element of the prima facie case. We need not dwell on this point because the parties do agree that Hoffman has made out a prima facie case.

PER CURIAM: Barbara Pollard (“Pollard”), Administra-trix of the estate of her son, Stacey Pollard (“Stacey”), filed a 42 U.S.C. § 1983 (2000) action and state wrongful death action against Michelle Pollard (“Michelle”), Lieutenant with Pitt County Sheriffs Office and Stacey’s wife, and other members of the Pitt County Sheriffs Office. Pollard posited a denial of access to the courts claim, alleging a police cover-up surrounding her son’s death. The district court granted Defendants’ Fed.R.Civ.P. 12(b)(6) motion to dismiss the § 1983 action and declined to entertain supplemental jurisdiction over the state law claim. The district court further denied Pollard’s motion to file a second amended complaint in which she sought to provide more factual allegations of the police cover-up. Pollard now appeals the district court’s dismissal of her § 1983 complaint and the denial of her motion to amend. This court reviews de novo a district court’s Fed.R.Civ.P. 12(b)(6) dismissal for failure to state a claim. Mayes v. Rapo-port, 198 F.3d 457, 460 (4th Cir.1999). “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint .... ” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). In ruling on a 12(b)(6) motion, all well-pleaded allegations in the complaint are to be taken as true and all reasonable factual inferences are to be drawn in the plaintiffs favor. Id. at 244. Although a complaint need not contain detailed allegations, the facts alleged must be enough to raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. On appeal, Pollard argues that the district court erred in dismissing her § 1983 complaint and in denying her leave to file a second amended complaint on the ground of futility. The gravamen of her appeal is that her § 1983 denial of access to the courts claim based on a pervasive police cover-up does not require that the claim be first litigated in state court. It is well established that citizens have a right of access to the courts. See Christopher v. Harbury, 536 U.S. 403, 415 n. 12, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). The right not only protects the ability to get into courts, but also ensures that such access be “adequate, effective, and meaningful.” Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). The denial of meaningful access to the courts is established where a party engages in pre-filing actions which effectively cover up evidence and actually render any state court remedies ineffective. Swekel v. City of River Rouge, 119 F.3d 1259, 1262 (6th Cir.1997). However, a “plaintiff cannot merely guess that a state court remedy will be ineffective because of a defendant’s actions.” Id. at 1264. To prevail on her claims, a plaintiff must demonstrate that the defendants’ actions foreclosed her from filing suit in state court or rendered ineffective any state court remedy she previously may have had. Id. at 1263-64. In this case, Pollard’s timely-filed wrongful death action is pending in state court and therefore she cannot credibly assert that Defendants’ actions foreclosed her ability to file suit in state court. To the extent Pollard argues that the police covered up proof and delayed her own investigation, thereby rendering any state court remedy ineffective, she has not presented evidence that the state court could not adequately address these problems. Swekel, 119 F.3d at 1264. Pollard also argues that the district court erred in denying her motion for leave to file a second amended complaint. While a district court’s denial of a motion for leave to amend a complaint is generally reviewed for abuse of discretion, Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir.2008), because the district court determined that the amended complaint would not survive a motion to dismiss, that legal conclusion is reviewed de novo. HCMF Corp. v. Allen, 238 F.3d 273, 277 n. 2 (4th Cir.2001). In her second amended complaint, Pollard does nothing more than allege additional facts implicating the officers in the cover-up. Because the amended complaint does not alter the disposition of her ease, we find the district court properly denied the motion. See Perkins v. United States, 55 F.3d 910, 917 (4th Cir.1995) (amendment is futile if the amended claim would fail to survive motion to dismiss). Accordingly, we affirm the district court’s order dismissing Pollard’s § 1983 action and denying her motion to file a second amended complaint. 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.

WASHINGTON, Circuit Justice. There are two motions before the court: (1) Por a new trial; and (2) in arrest of judgment. The indictment contains four counts. The two first are for forging a bill or note of the Bank of the United States, and for attempting to pass the same. The third is for falsely making and counterfeiting an order on the said bank, indorsed by the defendant upon the said bill, as follows, viz.: “Pay William Weston or order;” signed “John Thornton.” The fourth is for falsely altering a bill or note of the said bank, by the same indorsement. The bill or note, stated in the indictment, and given in evidence, is a post note of the Bank of the United States, payable to William Jenner & Co. or order, for one hundred dollars, with the following indorsements on the back of it, viz.: “Pay Maekie, Milner & Co. or order. William Jenner & Co.” “Pay William Jenner & Co. Maekie, Milner & Co. William Jenner & Co.” “Pay Churchman and Thomas or order. D. Bell.” “Pay William Morton or order. John Thornton.” The forgery of the last indorsement by the defendant was fully proved. The evidence which was given on the trial, applied only to the third count; and the question is, whether the false indorsement made by the defendant, is an offence within the eighteenth section of the law for incorporating the subscribers to the Bank of the United States, passed the 10th of April, 1816. It is perfectly clear, I think, that it does not amount to a forgery, or alteration of the bill or note itself, which is the sole act of the corporation, and contains its promise to pay; whereas the indorsement is the separate act of a person claiming a right to the note. Does the indorsement upon a note or bill of exchange, requiring the contents to be paid to a third person, amount to an order, within the meaning and intent of the act of con-' gress? I think not A bill of exchange is said to be an order by the drawer upon the drawee, to pay the contents to the payee. It is also, and with equal propriety, called an assignment to the payee of so much money in the hands of the drawee. I am not disposed to fall out with either of these definitions. But there can be no doubt, that the indorsement upon a bill or note, directing the contents to be paid to the indorsee, amounts to nothing more than the assignment of a mere chose in action; and whether it be made in the form of an assignment, or of an order, its nature is the same. That the act did not intend, by the word “order,” to include an assignment of a bank note, may be fairly presumed from the work “check,” with which it is associated; the latter meaning, in common parlance, a draft payable to “bearer,” and it was on that account, probably, that the word was added. I am strongly confirmed in this construction of the act of congress, by observing, that the statutes of England against forgery of negotiable papers of almost every kind, extend, by express words, to the indorsements made on them. Such, for instance, is the statute of 15 Geo. II. c. 13, against forging the notes of the Bank of England, or bills of exchange, or bonds under the seal of the corporation, or “any indorsement thereon.” Such are the statutes of 12 Geo. I. c. 2, as to East India bonds; 12 Geo. I. c. 32, as to the moneys of suitors in chancery; 42 Geo. III. c. 1, as to exchequer bills; and 2 Geo. II. c. 25, as to deeds, bonds, bills, notes or receipts. And it is observable that the statute of 45 Geo. III. c. 88, not only includes the forgery of bills and notes, and the Indorsements or assignments thereof, but also any warrant or order, for payment of money. 1 admit that these provisions in the English statute, are by no means conclusive of this point. But as ¿he nature of negotiable paper is as well understood in England, as in any country in the world, the care taken in those statutes to punish forged indorsements, proves, at least, that the legislature of that country has not thought that the word order would be sufficient for the purpose. As the evidence given at the trial applied only to the indorsement, which, in the opinion of the court, is not an offence within the act of congress, the judgment must be arrested.

FARRIS, Circuit Judge. Larry Stallings alleges that the district court erred by admitting evidence of his prior wire conviction because admitting the evidence violated both a New Hampshire district court local rule and Federal Rules of Evidence 403 and 404(b). We review applications of Federal Rules of Evidence 403 and 404(b) and district court local rules for abuse of discretion. United States v. Ofray-Campos, 534 F.3d 1, 35 (1st Cir.2008); Crowe v. Bolduc, 334 F.3d 124, 134 (1st Cir.2003); Crowley v. L.L. Bean, Inc., 361 F.3d 22, 25 (1st Cir.2004). The court admitted Stallings’s prior conviction in the interest of justice because it found 1) the government did not act in bad faith; 2) the evidence was highly probative; and 3) there was no unfair prejudice to Stallings as a result of the untimeliness. District courts have “broad latitude in administering local rules,” Air Line Pilots Ass’n v. Precision Valley Aviation, 26 F.3d 220, 224 (1st Cir.1994), and they may choose to forgive a party’s viola tion of a local rule. See United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir. 1989). There was no abuse of discretion. Stallings is incorrect that the district court’s admission of his prior wire fraud conviction violated Federal Rules of Evidence 403 and 404(b). Evidence of his prior conviction was offered to rebut Stallings’s claim that he was unaware that he was engaged in fraud. His prior conviction thus tended to prove intent, knowledge, and absence of mistake. Its admission did not violate Federal Rule of Evidence 404(b). “Only rarely—and in extraordinarily compelling circumstances—will [this court] reverse a district court’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.” United States v. Whitney, 524 F.3d 134, 141 (1st Cir.2008). There was no abuse of discretion. AFFIRMED.

PER CURIAM: Thomas Lester Ketelsen appeals the district court’s order denying Ketelsen’s motion to amend the 2004 judgment sentencing him to 210 months’ imprisonment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Ketelsen, No. 1:04-cr-00070-LHT-1, 2008 WL 2899668 (W.D.N.C. July 21, 2008). 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.

PER CURIAM: Frederick Burney, who was convicted of a crack cocaine offense, appeals through counsel the district court’s denial of his pro se motion for reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(2) and based on Amendment 706, which reduced the base offense levels applicable to crack cocaine offenses that involved less than 4.5 kilograms of crack cocaine. The district court denied the motion because Burney was held responsible for 442 kilograms of crack cocaine, such that Amendment 706 did not affect his guideline imprisonment range. For the reasons set forth below, we affirm. “We review de novo a district court’s conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir.2008). A district court may reduce the sentence “of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Any reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. The applicable policy statements provide that “a reduction in the defendant’s term of imprisonment is not authorized under 18 U.S.C. 3582(c)(2) and is not consistent with this policy statement if ... [a retroactive amendment] is applicable to the defendant but the amendment does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10, comment. (n.l(A)). The district court properly denied the motion. See James, 548 F.3d at 984. First, Burney’s guideline imprisonment range was not lowered as a result of Amendment 706, given that he was held accountable for more than 4.5 kilograms of crack cocaine and Amendment 706 only lowered the base offense levels for quantities of crack cocaine less than 4.5 kilograms. See id. at 986 (holding that the defendant was not entitled to a reduction in sentence because he had been held accountable for more than 4.5 kilograms of crack cocaine, and Amendment 706 did not lower his guideline range). Also, to the extent that Burney argues that the district court could have relied on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), to reduce his sentence or otherwise should have applied Booker and Kimbrough, his sentence is without merit because those cases do not apply to § 3582 proceedings. See United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir.2009) (holding that neither Booker nor Kimbrough render a guideline range advisory in the context of a § 3582 proceeding), petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664); United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir.2005) (holding that Booker did not provide a jurisdictional basis for § 3582 relief because it was not a sentencing amendment). Accordingly, we affirm. AFFIRMED.

PER CURIAM: Charles Braymiller appeals the district court’s order granting summary judgment in favor of Lowe’s Home Centers on Bray-miller’s claim of age discrimination under the Texas Commission on Human Rights Act (“TCHRA”). Finding no error, we affirm. I. BACKGROUND Braymiller began working for Lowe’s in August 2002 as an assistant store manager at age 59. He was promoted to store manager of a store in San Antonio, Texas, in March 2004 by human resources director Terry Gillespie and district manager Steve Jordan. Medina, in his 40s, replaced Jordan as district manager in June 2005. Although Braymiller’s performance reviews improved under Medina, Braymil-ler claimed that Medina began calling him “young man,” “boy,” and “son” in front of Braymiller’s subordinates In December 2005, Braymiller brought his wife to look at items for their new home and to take advantage of the 20 percent seasonal employee discount. Braymiller’s wife picked out a dishwasher and an oven from the clearance isle. The dishwasher was priced at $716 and the oven was priced at $636. Braymiller spoke to the manager on duty and his subordinate, Scott Decker, about receiving an additional discount. Decker quoted $400 for each item, a 50 percent discount. Decker later testified that he would not have given this price to a customer and that he believed this was the price Bray-miller was expecting him to quote. Decker processed the transaction using his manager override for the discount. Two days later, Braymiller asked administrative manager Chris Luke to refund Braymiller an additional 20 percent as part of the seasonal employee discount. To do this, Luke needed a manager override code. A transaction report, signed off by Braymiller the next day, showed that the transaction was completed under Braymil-ler’s login and with his scan card and override code. This would mean that Braymiller was the customer, cashier, and manager for this purchase. It is a violation of Lowe’s policy for an employee to use his own scan card to unlock the price on his personal transaction. A store loss prevention manager looked into the purchase and discount a few days later and reported the incident to his superior. The district loss prevention manager opened an investigation and gave the report to the regional loss prevention manager, James Rodriguez. Braymiller attempted to alter the report, but after learning that he could not, Braymiller brought the situation to Medina’s attention. In this conversation, Braymiller acknowledged that his scan card had been used but stated that he had either been in front of the register or in his office at the time. Braymiller then asked Decker to prepare a statement about the incident. Braymiller admitted that he may have told Decker to keep the statement short and to write that Braymiller did not influence him. The statement from Decker asserted that the price quoted to Braymiller would have been given to a customer and that Braymiller did not pressure him. Later, in his deposition given under oath, Decker indicated neither statement was true. Braymiller was told that he was under investigation. In response, he prepared a statement that said that he had been in his office when Luke processed the refund. Medina, Gillespie, and Rodriguez viewed a closed circuit video of the transactions. Based on the evidence in the video, Medina believed that Braymiller had not been truthful. During his deposition, Braymil-ler admitted he was present when the refund was processed but claimed this was an honest error of recollection. Both Braymiller and Decker were brought in to discuss the situation with Medina, Gillespie, and regional vice president Don Stall-ings. After the interview, these men decided to terminate Braymiller. No one made age-related comments during the interviews. Gillespie prepared the paperwork for Braymiller’s termination, listing the reason for the termination as “Violation of Lowe’s Code of Ethics: personal conduct, to avoid transactions and situations in which your interests conflict or could be viewed as conflicting with those of Lowe’s.” Bray-miller was informed on January 20, 2006. Gillespie testified that he terminated Bray-miller because he used his position to obtain an improper discount, involved subordinates in the transaction, and showed poor judgment during the investigation. Medina testified that the basis for termination was that Braymiller rang up his own merchandise and that it was not a price available to customers. Medina also agreed with the termination because he felt that Braymiller had been dishonest about what happened during the refund transaction. Braymiller brought the current action based on diversity jurisdiction alleging age discrimination under the TCHRA. He appeals from the district court’s adverse summary judgment. II. DISCUSSION This court reviews a district court’s grant of summary judgment de novo. Cousin v. Small, 325 F.3d 627, 637 (5th Cir.2003). Summary judgment is proper “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.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.2007) (quoting Fed. R.Civ.P. 56(c)). Braymiller’s claims were brought solely under the TCHRA. The TCHRA requires Braymiller to demonstrate that “age ... was a motivating factor for an employment practice, even if other factors also motivated the practice.” Tex. Lab.Code § 21.125(a). Because one of TCHRA’s purposes was to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” Tex. Lab.Code § 21.001(1), Texas courts have looked to “analogous federal statutes and the cases interpreting them guide [their] reading of the TCHRA.” Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex.2001). The resulting analysis has been indistinguishable from the McDonnell Douglas burden-shifting framework, as modified in light of Desert Palace. See id. at 476-477. A prima facie claim for age discrimination requires proof that (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age. Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir.2005) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir.2004)). Once Braymiller establishes a prima facie case, the burden of production shifts to Lowe’s to proffer a legitimate nondiscriminatory reason for its employment action. Both parties agreed below that Braymiller had established a prima facie case and that Lowe’s provided a non-discriminatory reason for his termination. Braymiller then had the burden to produce evidence “tending to show that the reason offered by the defendant is pretext for discrimination.” Machinchick, 398 F.3d at 350. The Texas Supreme Court has held that “the discrimination need only be ‘a motivating factor’ in the adverse employment decision to establish liability” in TCHRA unlawful employment practice claims. Pineda v. UPS, 360 F.3d 483, 488 (5th Cir.2004) (quoting Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex.2001)). The district court found that Braymiller did not provide sufficient evidence to rebut Lowe’s articulated reasons for termination. Because Braymiller also provided no evidence that Medina treated him differently than others outside the protected class or that Medina’s “stray remarks” were in any way related to his discharge, the district court granted Lowe’s motion for summary judgment. On appeal, Braymiller argues that Lowe’s justifications are inconsistent and baseless. Braymiller points to two allegedly different justifications stated in his termination paperwork: Lowe’s stated that Braymiller was fired for “violation of company policy” in one document and “code of ethics” in a different document. Braymiller also contends that Lowe’s briefing on summary judgment in the district court shifted between its first brief, which centered around the refund transaction as the cause of his being fired, and its reply brief, which centered around his conduct during the investigation. Finally, Braymiller argues that the district court erred by requiring him to provide evidence of age animus in addition to his strong prima facie case and the evidence of pretext. These arguments are unconvincing. The justification from Lowe’s employees has always concerned the same events. The supposed inconsistencies to which Braymiller refers are at best a change in emphasis regarding which violation of company policy they believed was more important in the final decision to discharge him. Varying explanations are not necessarily inconsistent. The motivating factor here was Braymiller’s purchase of two items at a heavily discounted price and his actions during the resulting investigation. At no point has Braymiller produced evidence that would tend to show that these events were a pretext for age-related discrimination. Braymiller is also unable to cite analogous case law. Braymiller relies heavily on Taylor v. County Bancshares, Inc,, 325 F.Supp.2d 755 (E.D.Tex.2004). In Taylor, the court found that an employer’s termination justifications were self-contradictory. One decision maker testified that the plaintiffs department had been eliminated because it was unprofitable. A second decision maker testified that this was not the reason he had eliminated the department. We have no directly contradictory statements here. Instead, Gillespie and Medina agreed that Braymiller’s termination stemmed from these events; they differed only in emphasis as to which policy violation was more important. Braymiller argues that Lowe’s explanation is subjective and does not qualify as a nondiscriminatory reason. See Patrick v. Ridge, 394 F.3d 311, 316 (5th Cir.2004). Lowe’s asserts that Braymiller’s improper purchase and conduct during the resulting investigation showed a lack of ethics. Braymiller criticizes this as a “content-less and non-specific statement, such as the candidate is not ‘sufficiently suited’ for the position [that] is not specific enough to meet defendant employer’s burden.” Id. at 317. On the contrary, Lowe’s conclusion stems from specific misconduct and violations of the ethics code. Braymiller provides several record citations in an attempt to prove that Lowe’s was incorrect about whether his actions violated company policy concerning available discounts. This court, however, does not try “the validity of good faith beliefs as to an employee’s competence.” Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir.1991). Further, this court “cannot protect older employees from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated.” Bienkowski v. Am. Airlines Inc., 851 F.2d 1503, 1508 (5th Cir.1988). Thus, as the district court noted, even if factual disputes surrounding the amount of the discounts are resolved in appellant’s favor, and in the unlikely event that Lowe’s management erred in concluding that Braymiller’s conduct violated company ethics standards, no evidence supports a conclusion that these management mistakes were pretextual. III. CONCLUSION Because there is no evidence that Lowe’s proffered explanations were pre-textual, and offered in an effort to obscure an age-motivated decision, the judgment of the district court granting summary judgment to Lowe’s is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Braymiller argues that he “did nothing of the sort,” but "merely stated what Lowe's had claimed to be such a reason.” Because Bray-miller does not argue that this reason in and of itself was discriminatory, we assume that Braymiller has acknowledged that this articulated reason was not discriminatory. . We agree with the district court’s conclusion that Medina's stray remarks referring to subordinates (often in Spanish) as “boy” or “son” are not probative of age discriminatory animus here.

PER CURIAM: Marshall Ray Miller, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Miller v. United States Attorney General, No. 3:08-cv-02806-TLW, 2008 WL 5244579 (D.S.C. Dec. 15, 2008). 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.

PER CURIAM: Steven Harris appeals the district court’s denial of his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Harris based his motion on Amendment 706 to the sentencing guidelines, which reduced the base offense levels applicable to crack cocaine offenses. He contends that the district court erred by not recognizing that he was sentenced based on an “improperly determined drug amount” during his original sentencing proceeding, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Harris argues that the court on resentencing treated the guidelines as mandatory in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He also asserts that, although his criminal history category was increased from III to VI under the career-offender provision of the guidelines, the court erred when it determined he was sentenced as a career offender. See U.S.S.G. § 4B1.1. “We review de novo a district court’s conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2).” United States v. Jones, 548 F.3d 1366, 1368 (11th Cir.2008). A district court may modify a term of imprisonment where a defendant was sentenced based on a sentencing range that subsequently has been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Where a defendant’s guideline range remains unchanged by Amendment 706 because his offense involved 4.5 kilograms or more of crack cocaine, a district court is not authorized to reduce the defendant’s sentence under § 3582(c)(2). Jones, 548 F.3d at 1369. We have noted that when the district court is evaluating whether to modify a defendant’s sentence pursuant to § 3582(c)(2), “all original sentencing determinations remain unchanged with the sole exception of the guideline range that has been amended since the original sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir.2000). We have also held that “ ‘Booker is inapplicable to § 3582(c)(2) motions.’” United States v. Melvin, 556 F.3d 1190, 1193 (11th Cir.2009) (citing United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir.2005)). During his original sentencing proceeding the court determined that Harris was responsible for over 4.5 kilograms of crack cocaine. Thus Amendment 706 did not reduce his applicable guideline range, and the district court lacked the authority to modify his sentence. Because § 3582(c)(2) proceedings are not de novo resentencings, Harris’ arguments about improper drug-amount determinations made during his original sentencing proceeding also fail. See Bravo, 203 F.3d at 781. Nor can Harris support his § 3582(e)(2) motion with a Booker argument because, as we have noted, Booker “does not address motions to reduce a sentence under § 3582(c)(2).” Melvin, 556 F.3d at 1192-93. Finally, Harris’ argument that he was not sentenced as a career offender is factually incorrect. Although the court’s application of § 4B1.1 did not increase Harris’ base offense level because it was already at 40, it did raise his criminal history category from III to VI. See U.S.S.G. § 4Bl.l(b). The district court did not err when it determined that Harris had been sentenced as a career offender. AFFIRMED.

MEMORANDUM The memorandum disposition, United States v. Nguyen, 307 Fed.Appx. 117 (9th Cir.2009), is hereby withdrawn. Tien Nguyen (“Nguyen”) appeals his sentence for possession of stolen goods in violation of 18 U.S.C. §§ 2315 and 2. We reverse the district court’s holding that Nguyen waived his right to object to his presentence report (“PSR”). We remand to the district court to reevaluate Nguyen’s sentence based on the information now available concerning his 2003 California misdemeanor conviction. Nguyen waived his right to appeal his sentence in a plea agreement. Yet the government did not raise appeal waiver in its briefs. We conclude that the government implicitly waived any appeal waiver argument it may have had and reach the merits of the case. See United States v. Garcia-Lopez, 309 F.3d 1121, 1122-23 (9th Cir.2002). Nguyen showed good cause under Fed.R.Crim.P. 32(i)(l)(D) for first objecting to his PSR at his sentencing hearing. It was an abuse of discretion for the district court to not permit this late objection. Federal Rule of Criminal Procedure 32 requires that parties state any objections to the PSR within 14 days of receiving it. Fed.R.Crim.P. 32(f)(1). These include objections to material “omitted from the report.” Id. Nguyen did not object to the PSR’s assessment of criminal history points against him until the sentencing hearing, which occurred 18 days after he received the PSR. Federal Rule of Criminal Procedure 32(i)(l)(D) provides, “At sentencing, the court ... may, for good cause, allow a party to make a new objection at any time before sentence is imposed.” Nguyen had good cause for waiting until the sentencing hearing to object to the criminal history point assessed against him for his 2003 California misdemeanor conviction. The PSR did not describe the circumstances of the conviction and, instead, noted that “[fjurther information has been requested but not yet received.” It was reasonable for Nguyen to await the receipt of that further information before determining whether an objection to the inclusion of that conviction for purposes of calculating criminal history was warranted. When the time for sentencing arrived, however, no further information had been received and, in spite of the lack of any corroborating information, the district court chose to rely on that conviction in calculating Nguyen’s criminal history. Nguyen objected to counting the 2003 California misdemeanor conviction, but the district court sustained the government’s objection that, under Fed.R.Crim.P. 32(f)(1), Nguyen’s objection was untimely. While it is true that, as the district court stated, the lack of supporting information was “obvious” when the PSR was delivered to counsel, that was not the only factor in play. The district court ignored the further fact that, in substance, the Probation Officer impliedly represented that further information would be forthcoming. In these circumstances, it was not unreasonable for Nguyen to await the receipt of that further information before lodging any objection. One less criminal history point would have placed Nguyen in criminal history category II, rather than III, which would have resulted in an advisory guideline range of 33-42 months, rather than 37-46 months. Because Nguyen was sentenced to 44 months’ imprisonment, the failure to entertain Nguyen’s late objection was undoubtedly prejudicial. REVERSED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: In these consolidated petitions, Nabintu Aurele Mongane, a native and citizen of the Congo, seeks review of the Board of Immigration Appeals’ (“Board”) order dismissing her appeal from the immigration judge’s decision finding her removable and denying her applications for relief under the Convention Against Torture (“CAT”) and the order denying her motion for reconsideration. We deny the petitions for review. To qualify for protection under the CAT, a petitioner bears the burden of demonstrating that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2) (2008). Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to decide to the contrary. 8 U.S.C. § 1252(b)(4)(B) (2006). This court will reverse the Board only if “the evidence ... presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see Rusu v. INS, 296 F.3d 316, 325 n. 14 (4th Cir.2002). Credibility findings are reviewed for substantial evidence. A trier of fact who rejects an applicant’s testimony on credibility grounds must offer “specific, cogent reason[s]” for doing so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir.1989). “Examples of specific and cogent reasons include inconsistent statements, contradictory evidence, and inherently improbable testimony....” Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir.2006) (internal quotation marks and citations omitted). Contradictory evidence may support an adverse credibility finding even if the alien offers a plausible explanation. Dankam v. Gonzales, 495 F.3d 113, 121-22 (4th Cir.2007). This court accords broad, though not unlimited, deference to credibility findings supported by substantial evidence. Ca-mara v. Ashcroft, 378 F.3d 361, 367 (4th Cir.2004). If the immigration judge’s adverse credibility finding is based on speculation and conjecture rather than specific and cogent reasoning, however, it is not supported by substantial evidence. Tew- abe, 446 F.3d at 538. Even in light of an adverse credibility finding, the immigration judge must still determine if independent evidence supports the alien’s claim. Camara, 378 F.3d at 371-72. We find no abuse of discretion. The adverse credibility finding is supported by substantial evidence and the record does not compel a contrary finding. We also note that there was a lack of independent evidence showing that it was more likely than not Mongane will be tortured if she returns to the Congo. Mongane also claims she was denied due process. To succeed on a due process claim in an asylum proceeding, the alien must establish two closely hnked elements: (1) that a defect in the proceeding rendered it fundamentally unfair and (2) that the defect prejudiced the outcome of the case. Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir.2008) (citing Rusu, 296 F.3d at 320-22, 324). Mongane failed to show the proceeding before the immigration judge or on appeal was fundamentally unfair. In light of the adverse credibihty finding and the lack of independent evidence supporting her claim, she failed to show she was prejudiced by any alleged defect in the proceeding. We deny the petitions for review. 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. PETITIONS DENIED.

ORDER AND JUDGMENT JEROME A. HOLMES, Circuit Judge. Richard R. Martinez, appearing pro se, appeals from the district court’s entry of judgment in favor of defendants Hyundai Motor America and one of its employees, Jared Blackburn, on the ground that the suit was time-barred. We have jurisdiction under 28 U.S.C. § 1291 and affirm. I While riding as a passenger in a Hyundai Elantra on October 16, 2002, Mr. Martinez’s son, a disabled adult, was injured in an accident. A week later, Mr. Martinez began discussions with Hyundai, seeking to settle an alleged product-liability claim regarding the car’s air bag. The parties exchanged numerous letters and, apparently, some telephone calls, all without reaching any compromise. By letter dated August 4, 2005, Hyundai expressed regret that it could not “informally resolve” the matter. R. at 49. Hyundai also explained to Mr. Martinez that it disagreed with the sums he requested, expressed a belief that its goodwill offer, apparently $1,000, would provide a fair remedy, and advised him that “[sjhould you reconsider our offer or have any further questions regarding our position, please do not hesitate to contact us.” Id. In February 2006, Mr. Martinez sent another letter to Hyundai, asking for $15,823.73. In a letter dated November 8, 2006, Mr. Blackburn responded on behalf of Hyundai that the matter had “been reviewed by all pertinent personnel who have determined that we will be unable to offer any assistance.” Id. at 50. Shortly after receipt of Mr. Blackburn’s letter, on December 8, 2006, Mr. Martinez initiated the underlying action pro se. After discovery, defendants filed a motion for summary judgment. The district court granted the motion on one of the three grounds defendants advanced, that New Mexico’s three-year statute of limitations for personal injury claims, N.M. Stat. § 37-1-8, had run prior to the filing of the action, and that there was no reason to toll the limitations period. Mr. Martinez has appealed. II We review the district court’s entry of summary judgment de novo, applying the same substantive legal standards as the district court. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Affording a liberal construction to Mr. Martinez’s pro se filings, see Hall v. Bell-mon, 935 F.2d 1106, 1110 & n. 3 (10th Cir.1991), we see no error in the district court’s resolution of this case. Despite the fact that Mr. Martinez filed his complaint on a court form for claims arising under 42 U.S.C. § 1983, he asserted no constitutional violations, but only a tort claim under a theory of product liability. Accordingly, the district court concluded there was no state action and implicitly took jurisdiction under 28 U.S.C. § 1332(a) based on diversity of citizenship. In diversity cases, the statute of limitations of the forum state, here New Mexico, governs personal-injury actions. Dow Chem. Corp. v. Weevil-Cide Co., 897 F.2d 481, 483-84 (10th Cir.1990). In New Mexico, “[ajctions must be brought ... for an injury to the person ... within three years.” N.M. Stat. § 37-1-8. This statute applies to personal injuries arising in product-liability cases. See Sawtell v. E.I. du Pont de Nemours & Co., 22 F.3d 248, 249 (10th Cir.1994) (applying New Mexico law); Martinez v. Showa Denko, K.K., 125 N.M. 615, 964 P.2d 176, 181 (N.M.App.1998). Mr. Martinez has not taken issue with, nor do we see error in, the district court’s conclusion that the three-year period began running on the date of the accident, October 16, 2002, or at the very latest approximately one week after the accident, when he first contacted Hyundai about his son’s injuries and asserted a product-liability claim. Thus, the limitations period ended sometime in October 2005, but Mr. Martinez did not file this action until December 8, 2006, approximately one year after that period had ended. He argues that defendants stalled negotiations until after the limitations period had run and therefore he is entitled to tolling of the statute of limitations. But this contention is fatally undermined by the letter Hyundai wrote to him on August 4, 2005, nearly three months before the end of the limitations period. Despite any alleged stalling that occurred prior to that date, the August 4 letter made reasonably clear that Hyundai considered negotiations to be at an end, leaving Mr. Martinez with nearly three months in which to file his lawsuit before the limitations period ended in mid- or late-October 2005. We see no indication that defendants induced Mr. Martinez to forego filing suit by fraudently leading him to believe that the matter would be settled until after the limitations period, a situation that the New Mexico Supreme Court has suggested might warrant tolling. See Crumpton v. Humana, Inc., 99 N.M. 562, 661 P.2d 54, 55 (1983). Indeed, as in Crumpton, where the court concluded that the plaintiff was not entitled to tolling during the parties’ period of settlement negotiations, Hyundai conveyed a final offer of compromise within the limitations period—the August 4 letter, which reiterated Hyundai’s belief that its goodwill offer would provide a fair remedy and invited Mr. Martinez to reconsider his rejection of that offer. We therefore see no evidence that the actions of Hyundai were fraudulent and induced Mr. Martinez into delaying the filing of his action until after the limitations period expired. Mr. Martinez further argues that he simply was unaware of the statute of limitations. This, however, does not merit tolling. Coslett v. Third St. Grocery, 117 N.M. 727, 876 P.2d 656, 664 (N.M.App. 1994). Finally, Mr. Martinez’s contention that he was never given the opportunity to personally present and argue his case before a judge or jury does not amount to a deprivation of due process. The propriety of deciding a case by summary judgment, and doing so without a hearing, are well-established judicial procedures. See Fed. R.Civ.P. 56 (setting forth summary judgment criteria); Shannon v. Graves, 257 F.3d 1164, 1167 (10th Cir.2001) (stating that the Seventh Amendment right to a jury trial “is not violated by proper entry ! of summary judgment, because such a ruling means that no triable issue exists to be submitted to a jury”); Geear v. Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th Cir.1988) (explaining that a party’s right to be heard on summary judgment “may be ful filled by the court’s review of the briefs and supporting affidavits and materials submitted to the court”). Moreover, there is no indication that the parties’ written materials were insufficient to inform the district court’s disposition. Ill The judgment of the district court is AFFIRMED. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Mr. Martinez is a citizen of New Mexico, and defendants apparently are citizens of California. The amount-in-controversy require ment, $75,000, appears satisfied, as Mr. Martinez sought $180,000 in damages. . Mr. Martinez states that because his documentation was submitted to the district court through and at the request of opposing counsel, "[i]t is reasonable to question that all documentation we provided to opposing coun[sel] was presented in its entirety to the judge.” Aplt. Br. at 3. But even assuming such an arrangement existed, Mr. Martinez has not identified any documents that opposing counsel failed to provide to the district court on his behalf.

MEMORANDUM AND ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT McNAUGHT, District Judge. This matter came before the Court on defendants Bahama Cruise Line, Inc. and Bermuda Star Line, Inc.’s motion for summary judgment. Plaintiff Donna Rugo (Rugo), 26 years old, was a passenger aboard the S.S. Bermuda Star, a cruise ship, from February 1-8, 1986. Plaintiff alleges that she was assaulted and raped by two crewmembers during the late evening or early morning hours while en route back to her stateroom. The passenger contract ticket requires that a person filing a claim for bodily injury must do so within one year, and must also provide the carrier with notice of the claim within six months of the date of injury. Rugo filed suit within one year but she did not give the shipowner notice, written or otherwise, of her claim within six months. It is on that basis that defendants seek summary judgment, claiming that plaintiff’s action is time-barred for failure to comply with the limitations provision of the contract ticket. Section 183b of Title 46 of the United States Code governs the action. That section establishes that carriers can require written notice for bodily injury claims within six months of the incident and commencement of a lawsuit within one year. Limitation terms on a passenger contract ticket are enforceable only if reasonably communicated to the claimant. Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 863, 867-868 (1st Cir.1983). In determining whether reasonable communication has occurred, the Court must examine “the ticket itself, the circumstances surrounding [Rugo’s] purchase, [her] possession and familiarity with the ticket, and [her] ability to become meaningfully informed of the terms of the contract”. Muratore v. M/S Scotia Prince, 845 F.2d 347, 351 (1st Cir.1988). Plaintiff has not produced the actual ticket involved in this matter. What I have examined is the ticket supplied by defendants which, according to the affidavit of the Bermuda Star Line’s Claims Manager, was the ticket used during the time of Rugo’s cruise. On the front of the ticket, entitled in capital letters “PASSAGE CONTRACT TICKET”, is what appears in the xeroxed copy to be a black box (in actuality, the box is blue), with conspicuous white lettering which reads “IMPORTANT NOTICE: Each passenger should carefully examine this ticket particularly the conditions on pages 1, 2, 3, 4, 5, 6, 7, 8, and 9.” On the next page, the first words printed are, in capital letters, “CONDITIONS OF CONTRACT” and then “Acceptance Of This Ticket By The Passenger Shall Constitute An Acceptance By The Passenger”. The time limitations for providing notice and filing suit are located on page 7 in paragraph 22(a). The section is not highlighted by a heading, nor printed in bold or capital letters. It reads: “The Carrier and/or vessel shall not be liable for any claim whatsoever of the Passenger howsoever and wheresoever arising unless written notice thereof with full particulars shall be delivered to the Carrier or its agent as follows: 1. Within six (6) months from the day when the death or injury occurred in respect of any claim for loss of life or bodily injury I conclude, as a matter of law, that the limitations provisions were reasonably communicated to plaintiff. See DeNicola v. Cunard Line Ltd, 642 F.2d 5 (1st Cir.1981). The terms of the ticket were visible, conspicuous language cautioned passengers that acceptance of the ticket constituted acceptance of a contract, and as the First Circuit stated in Shankles, a passenger has a “powerful incentive to study the passage contract ticket promptly after a loss has occurred”. Shankles, 722 F.2d at 866, quoting Lipton v. National Hellenic American Lanes, 294 F.Supp. 308, 311 (E.D.N.Y.1968). The fact that Rugo did not possess the ticket herself is immaterial where knowledge of the contract terms is imputed to her since she admitted that she believed her then boyfriend, with whom she shared a cabin during the cruise, had both their tickets in their cabin. See Marek v. Marpan Two and Bahama Cruise Lane, Lnc., 817 F.2d 242 (3d Cir.), cert. denied, 484 U.S. 852, 108 S.Ct. 155, 98 L.Ed.2d 110 (1987). There is no question that Rugo had access to the ticket and could have familiarized herself with its provisions. Rugo also stated that although her relationship with her boyfriend ended shortly after the cruise, she remained in contact with him and thus, could have obtained her ticket at any time. Plaintiff argues that even if the limitation terms were reasonably communicated to her, 46 U.S.C. § 183b allows for certain exceptions to the rule that claims are time-barred if notice is not given within the contractually prescribed time. Specifically, the statute provides that: “(b) Failure to give such notice, where lawfully prescribed in such contract, shall not bar any such claim — ... (2) If the court excuses such failure on the ground that for some satisfactory reason such notice could not be given” (emphasis supplied). After the hearing on the motion, plaintiff submitted an affidavit of her treating psychologist in which the psychologist stated “within a reasonable degree of certainty”, that following the incident, Rugo suffered from “Rape Trauma Syndrome” which rendered her incapable of disclosing her injuries during those first six months. In this Court’s opinion, that is a satisfactory reason why notice could not be given within the contractually prescribed period. Plaintiffs failure to comply with the limitations provisions of the passage contract ticket, accordingly, is excused for purposes of this motion. Summary judgment is denied.

MEMORANDUM AND ORDER ELFVIN, District Judge. The petitioner seeks a writ of habeas corpus for relief from state custody — see 28 U.S.C. § 2254 — , asserting that his state court convictions were constitutionally tainted by an improper jury instruction. The petitioner was convicted, after a jury trial in the New York State Supreme Court for Bronx County, of murder in the second degree, manslaughter in the first degree, two counts of robbery in the first degree, robbery in the second degree and criminal possession of a weapon in the second degree. He was sentenced May 12, 1982 to concurrent indeterminate prison terms of from twenty years to life on the murder conviction, eight and one-third to twenty-five years on the manslaughter conviction and on each of the first degree robbery convictions and five to fifteen years on the second degree robbery conviction. He appealed his convictions to the Appellate Division, First Department, contending that the trial court’s alibi instruction to the jury impermissibly shifted the burden of proof to him and improperly singled out alibi evidence as requiring careful scrutiny, thereby depriving him of his due process right to a fair trial. The Appellate Division unanimously affirmed the convictions without opinion. See People v. Andujar, 104 A.D.2d 1059, 480 N.Y.S.2d 795 (1st Dept. 1984). New York’s Court of Appeals denied the petitioner leave to further appeal and the instant Petition followed. The Petition was referred to United States Magistrate Edmund F. Maxwell for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate initially recommended that the Petition be dismissed, having concluded that the petitioner’s failure to object to the jury instructions at the time of trial constituted a procedural default and that the Appellate Division’s affirmance without opinion must be assumed to have been based upon such procedural default, foreclosing collateral federal review. Report and Recommendation, dated November 23, 1988. The petitioner filed objections to the Magistrate’s ruling and this Court rejected the Magistrate’s conclusions, relying upon the intervening decision in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), for the proposition that a state procedural default does not bar federal ha-beas corpus review unless the last state court having rendered a judgment had clearly and expressly stated that its judgment rested on a state procedural bar. The Petition was remanded to the Magistrate for further evaluation. Memorandum and Order, dated October 20, 1989. Upon remand, the Magistrate again recommended that the Petition be dismissed. Report and Recommendation, dated March 12, 1990 (“R & R II”). This time he reasoned that the alibi instruction, standing alone, was erroneous and could be construed as improperly shifting the burden of proving the alibi defense to the petitioner. Id., at 10. However, relying on Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), the Magistrate also found that error in a jury instruction is subject to harmless error analysis, which analysis, he determined, the instant Petition cannot withstand. R & R II, at 10. The petitioner has timely objected to the Magistrate’s latest recommendation, contending that “an erroneous alibi instruction may be found harmless only in a rare case.” Objection to R & R II, filed March 22, 1990. This Court reviews the matter de novo. See 28 U.S.C. § 636(b)(1). The instruction provided to the jury regarding the petitioner’s alibi was as follows: “Evidence with relation to an alibi should be most carefully scrutinized. If the defendant’s guilt is not established beyond a reasonable doubt by reason of the truth of the alibi, you must acquit him. The defendant is not required to prove an alibi beyond a reasonable doubt, but you must be satisfied as to the truth of the alibi. In other words, if it is sufficient to raise a reasonable doubt by evidence concerning the defendant’s whereabouts at the particular time when the crime was committed, if the jury believes that evidence, that alibi itself entitles him to a verdict of not guilty. The prosecution has the burden of disproving the alibi beyond a reasonable doubt. “It is not for you the jury to determine whether or not the alibi should be believed.” Trial Transcript, People v. Andujar, No. 1372/81, dated April 19, 1982, p. 82. Assuming (without deciding) that the alibi instruction given the trial jury was in error, it was a harmless one. True, it has been held that “an erroneous alibi instruction may be found harmless only in a rare case." Simmons v. Dalsheim, 543 F.Supp. 729, 748 (S.D.N.Y.1982), aff'd, 702 F.2d 423 (2d Cir.1983) (per curiam) (specifically relying on the strength of the opinion below). But this is such a case. Here, three witnesses, one of whom was the petitioner’s father, testified in support of the alibi. They placed him at his father’s house from approximately 4 p.m. until about 10:20 p.m. on the critical date, except for a ten-minute absence. Also, the victim’s girlfriend testified to having witnessed the homicide, but she was unable to identify the petitioner as the perpetrator. Were this the only evidence the trial jury had to rely upon in reaching its verdicts, any error in the legal instructions given the jury would very likely not have been harmless. But the jurors had before them a great deal more than the inconclusive testimony of several witnesses. The petitioner had confessed both in writing and on videotape to shooting his victim and to having absconded with the victim’s radio, which was subsequently recovered from the location at which the petitioner had said it could be found. Finally, the petitioner was apprehended with the gun later identified by both the victim’s girlfriend and a ballistics expert as that employed in the shooting. Unlike Simmons v. Dalsheim, supra, this is one of those “rare case[s]” in which an erroneous alibi instruction may be found harmless “because the prosecution introduced independent evidence that powerfully corroborated the prosecution’s * * * witnesses.” Id., at 748 (citing two cases wherein the giving of improper alibi instructions was deemed harmless error). Accordingly, it is hereby ORDERED that the Magistrate’s recommended disposition of this matter — see R & R II — , is confirmed, that the Petition is dismissed and that, inasmuch as there is no substantial question for appellate consideration, a certificate of probable cause for any appeal is denied. See Fed.R.App.P. rule 22(b).

PER CURIAM: Zhou Zhi Li, a native and citizen of China, seeks review of the Board of Immigration Appeals’ (“BIA”) order denying asylum and withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). Li concedes that he never suffered any past persecution by the Chinese government but contends that he has a well-founded fear of future persecution because he is a Falun Gong practitioner. After careful review, we AFFIRM the BIA’s order and DENY the petition. I. BACKGROUND Li was served with a notice to appear charging him with removability after he entered the United States on 18 December 2004 without being admitted or paroled by an immigration officer. Li conceded re-movability and applied for asylum, withholding of removal, and CAT protection. At the administrative hearing, Li testified that his family was persecuted by the Chinese government because his parents violated the birth control policy. Specifically, Li claimed that his father was forcibly sterilized after having a second child. Nevertheless, Li’s father had a third child and the government imposed a fine. Li’s father then suffered some health problems which caused him to stop working. Li quit school and tried to find work. Unable to find a job, Li decided to seek employment in the United States in order to support his family. A co-worker suggested that Li learn Falun Gong to improve his physical health. Li taught himself the Falun Gong exercises and practiced alone twice a week in his bedroom. Li believes that if he returns to China, he would be detained and beaten for practicing Falun Gong because it is banned in China. In a written decision, the Immigration Judge (“IJ”) found that Li’s testimony generally corresponded to his asylum application information. The IJ determined that his father’s treatment by the Chinese government for violating the family planning policy did not motivate Li to come to the United States nor entitle Li to asylum. With respect to Li’s Falun Gong affiliation, the IJ found no evidence of past persecution. The IJ also concluded that Li’s expressed fear of future persecution for practicing Falun Gong was not subjectively or objectively reasonable. Li had never been persecuted in China for practicing Falun Gong, and his situation differed from those who had been persecuted. According to Li’s documentary evidence, the Chinese government abused Falun Gong followers who: (1) actively demonstrated against the government; (2) practiced publicly; or (3) were teachers or well-known leaders of the movement. In contrast, Li’s practice of Falun Gong in the privacy of his bedroom did not fall into any of these categories. The IJ noted that the the 2005 Congressional Research Service Report for Congress stated that the police would not interfere with people who practiced alone in their homes. Additionally, the court found no evidence that the persecution of Falun Gong members was countrywide and cited a 2004 United Kingdom report suggesting that Hong Kong has been very lax in enforcing the Falun Gong ban. Thus, the IJ denied Li’s application for asylum based on the absence of past persecution or a well-founded fear of future persecution. The IJ also concluded that Li was ineligible for withholding of removal under the INA or CAT relief. The BIA determined that credibility was not an issue on appeal because the IJ had not made an explicit adverse credibility finding. Regardless of Li’s credibility, though, the BIA agreed with the IJ’s conclusion that Li failed to establish a well-founded fear of future persecution or torture based on his Falun Gong association. The BIA therefore adopted and affirmed the decision of the IJ as to these issues. The BIA expressly found that the IJ considered Li’s documentary evidence in evaluating Li’s claim. In addition, the BIA noted that Li was not entitled to a presumption of a future fear of persecution given that he had experienced no past persecution for practicing Falun Gong. In his petition for review, Li challenges the IJ and BIA’s determination that he does not have a well-founded fear of persecution. Specifically, Li refutes the IJ’s finding that Li would be safe in China because he practices Falun Gong privately. Li asserts this finding was mere speculation and ignored the possibility that Li would practice in China with other Falun Gong followers. Li also submits that he qualifies for protection under the CAT because the Chinese government is certain to discover his Falun Gong affiliation and persecute him. II. DISCUSSION Where, as here, the BIA expressly adopts and affirms the IJ’s decision and adds its own analysis, we review the IJ’s decision as supplemented by the BIA. See Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1312 (11th Cir.2006). All legal determinations are reviewed de novo. See Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1289 (11th Cir.2006) (per curiam). Factual findings, however, are reviewed under a highly deferential substantial evidence test. See id. at 1289. This test requires us to affirm factual findings which are supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Id. “[T]he IJ’s decision can be reversed only if the evidence ‘compels’ a reasonable fact finder to find otherwise.” Id. at 1290 (quotation marks and citation omitted). The Attorney General or the Secretary of Homeland Security may grant asylum to an alien who meets the INA’s definition of a “refugee”: [A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). The alien must present specific, credible evidence showing: (1) past persecution based on a statutorily protected ground, or (2) a well-founded fear of future persecution due to a statutorily listed factor. Zheng, 451 F.3d at 1290. In order to establish a well-founded fear of persecution, the alien bears the burden of showing the following: “(1) he fears persecution based on his membership in a particular social group, political opinion, or other statutorily listed factor; (2) there is a reasonable possibility that he will suffer persecution if removed to his native country; and (3) he is unable or unwilling to return to his native country because he fears persecution.” Id. at 1291. This fear must be “both subjectively genuine and objectively reasonable.” Id. An alien’s credible testimony that he genuinely fears persecution may satisfy the subjective component, while evidence of past persecution or a valid reason to fear future persecution can fulfill the objective component. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir.2006) (per curiam): As an alternative to demonstrating that he would be singled out for persecution, an alien may show a pattern or practice in the subject country of persecuting members of a statutorily defined group of which the alien is a part. See 8 C.F.R. § 208.13(b)(2)(iii). Neither the INA nor the regulations define persecution. Our precedent mandates that persecution is an “extreme concept, requiring more than a few isolated incidents of verbal harassment or intimi dation, and that mere harassment does not amount to persecution.” Zheng, 451 F.3d at 1290 (quotation marks and citation omitted). We concluded in Zheng that one’s status as a Falun Gong practitioner does not require a finding of persecution. See id. at 1291-92. Zheng, a Falun Gong follower, was detained for five days, during which he was forced to watch anti-Falun Gong reeducation videos, stand in the sun for two hours, and sign a pledge to stop practicing Falun Gong. See id. at 1290-91. Zheng was also fired from his job, unable to find another job, and watched by local officials, who occasionally searched his parents’ house. See id. at 1291. None of these circumstances rose to the level of persecution. See id. Additionally, Zheng could not show a well-founded fear of future persecution based on his Falun Gong participation. See id. at 1291-92. According to the State Department’s 2002 Country Report, the government focused on punishing the movement’s core leaders. See id. Zheng was not a leader and he had lived for three years without harm or detention after relocating to his parents’ rural village. See id. at 1292. We concluded that “[ijnvolvement with Falun Gong in China by itself does not entitle a person to asylum in the United States.” Id. As in Zheng, Li has failed to demonstrate a reasonable possibility that he will be subject to persecution if returned to China. Li does not dispute the IJ’s finding that the Chinese government primarily targets Falun Gong leaders and teachers, public practitioners, or active demonstrators against the government. Nor does Li challenge the IJ’s finding that Hong Kong has not strictly enforced the Falun Gong ban. Rather, Li submits that the IJ erroneously assumed that Li would continue to practice exclusively at home upon his return to China. Li contends that “[i]f given the opportunity, [he] would be expected to be welcomed by a practitioner group in China, and thus despite the dangers, to begin to practice with a group.” Petitioner’s Appeal Brief at 12. However, Li never testified at the hearing that he would practice with a group or outside his home if he returned to China. We are prohibited from finding or considering facts not raised in the administrative forum. See Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.2004) (en banc). Similarly, Li cites no evidence in the record to support his suggestion that he would be more harshly punished because he learned Fa-lun Gong in the United States. Li’s attempts to distinguish his situation from Zheng therefore fail. Accordingly, we find that substantial evidence supports the IJ and BIA’s determination that Li does not have a well-founded fear of future persecution. Li’s private involvement with Falun Gong is insufficient to establish his eligibility for asylum. See Zheng, 451 F.3d at 1292. Because Li failed to meet the less stringent standard for asylum, his claim for CAT relief necessarily fails. See id. III. CONCLUSION Based on the foregoing, we AFFIRM the BIA’s judgment and DENY the petition for review. PETITION DENIED. . Li makes no argument to us that the BIA erred in denying withholding of removal under the INA, apart from a general reference to the BIA's decision at the conclusion of his brief. Li has therefore abandoned this claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005) (per curiam) ("When an appellant fails to offer argument on an issue, that issue is abandoned.”).

MEMORANDUM Because petitioner was able to freely leave Romania, and her mother continues to reside there without incident, substantial evidence supports the BIA’s determination that petitioner failed to establish eligibility for relief under the Convention Against Torture. See 8 C.F.R. § 208.16(c)(2). The dearth of case citations in the BIA’s opinion does not violate due process because the IJ cited numerous cases in her decision, which the BIA effectively adopted. See Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000). The BIA did not abuse its discretion in declining to reopen petitioner’s asylum and withholding claims because petitioner’s own evidence suggests that conditions in Romania are improving. Petitioner thus failed to establish prima facie eligibility for relief on the basis of changed country conditions. See Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir.2008); Perez v. Mu-kasey, 516 F.3d 770, 773 (9th Cir.2008). The IJ and the BIA could not have violated due process by failing to consider country conditions prior to 2005 because the IJ specifically mentions evidentiary submissions discussing pre-2005 country conditions, and states that “[i]f country conditions have changed significantly since 1997, it appears to be in a favorable direction with a stronger and more tolerant society.” Substantial evidence supports the determination that petitioner is ineligible for NACARA relief because she admits arriving in the United States after the relevant cutoff date. See Munoz v. Ashcroft, 339 F.3d 950, 957 (9th Cir.2003). NACARA’s cutoff dates do not violate due process or equal protection. See Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-65 (9th Cir.2002); Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 603 (9th Cir.2002). DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

MEMORANDUM Belen Parra-AItamirano, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) order finding Parra-Altamirano removable as an aggravated felon. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo claims of due process violations, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam), and we deny the petition for review. We reject Parra-Altamirano’s contention that the IJ violated due process by denying a continuance because her proceedings were not “so fundamentally unfair that [she] was prevented from reasonably presenting [her] case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (internal quotation marks and citation omitted); see also Grageda v. INS, 12 F.3d 919, 921 (9th Cir.1993) (IJ properly denied motion to continue because pending collateral attack did not affect finality of conviction). Moreover, Parra-AItamirano failed to demonstrate prejudice. See Colmenar, 210 F.3d at 971. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: Servando Ferguson, a federal prisoner convicted of crack cocaine offenses, appeals the district court’s denial of his counseled 18 U.S.C. § 3582(c)(2) motion for reduction of sentence based on Amendment 706 to U.S.S.G. § 2D1.1, which lowered the base offense levels applicable to crack cocaine offenses. Ferguson contends that he was not sentenced as a career offender pursuant to U.S.S.G. § 4B1.1, but instead was sentenced pursuant to U.S.S.G. § 2D1.1, and, for that reason United States v. Moore, 541 F.3d 1323 (11th Cir.2008), cert. denied sub nom. McFadden v. United States, — U.S.-, 129 S.Ct. 965, 173 L.Ed.2d 156 (2009), is inapplicable and he is entitled to § 3582 relief. To the contrary, Ferguson was sentenced as a career offender pursuant to § 4B1.1, instead of based on the drug quantity in § 2D1.1. The applicable base offense level under § 4B1.1 applied because it was greater than the § 2D1.1 base offense level. See U.S.S.G. § 4Bl.l(b) (stating that the base offense level in § 4B1.1 applies as long as it is higher than the “offense level otherwise applicable,” such as the levels under § 2D1.1). Because Ferguson was sentenced based on the career offender guideline section, the base offense levels under § 2D1.1 “played no role in the calculation of [the guideline] range[ ],” and the lowering of the § 2D1.1 levels did not lower his guideline range, the Moore decision applies. See Moore, 541 F.3d at 1327; see also U.S.S.G. § 1B1.10 cmt. n. 1(A) (stating that a reduction under § 3582(c)(2) is not authorized where “the amendment ... is applicable to the defendant but the amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision”). Ferguson also contends that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the Guidelines advisory in the § 3582 context. That argument is precluded by our decision in United States v. Melvin, 556 F.3d 1190 (11th Cir.2009). Ferguson asks that we hold his case in abeyance pending the resolution of the petition for hearing en banc in United States v. Argro, No. 08-14591. We decline to do so because the filing of a petition for hearing en banc has no effect on the precedential effect of any of our decisions. AFFIRMED.

PER CURIAM: Warren Phillips (“Phillips”), proceeding pro se, appeals the district court’s denial of his motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). Phillips contends that Amendment 706 to the Sentencing Guidelines operates to reduce his base offense level because he was not sentenced to a mandatory minimum term of life imprisonment. We disagree and AFFIRM. I. BACKGROUND In 1999, a jury convicted Phillips of conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846 (Count One), and distribution of cocaine and possession with intent to distribute cocaine, both in violation of 21 U.S.C. § 841(a)(1) (Counts Two and Three). See Exh. Folder 1 at 12, 30. Phillips originally was sentenced to a term of life imprisonment, the mandatory minimum sentence pursuant to 21 U.S.C. § 841(a)(1)(B), based on the government’s enhancement information, filed in accordance with 21 U.S.C. § 851, which listed Phillips’s three prior felony drug convictions. See Exh. Folder 1 at 22, 44. Although the presentence investigation report (“PSI”) noted that Phillips’s guideline sentence was calculated using U.S.S.G. § 2D1.1 instead of U.S.S.G § 4B1.1 (the career offender guideline), it also made clear that Phillips was nonetheless subject to the statutory mandatory minimum sentence of life imprisonment. Phillips subsequently filed a motion to reopen his sentence based on a state court judgment modifying one of the convictions listed in the § 851 enhancement information. Rl-122. We ultimately denied Phillips’s motion to proceed on appeal in for-ma pauperis (“IFP”) and noted that the corrected state conviction did not affect his sentence, which, we stated, “was determined pursuant to U.S.S.G. § 2D1.1 and 21 U.S.C. § 841(b)(1)(A).” Rl-136. On appeal, Phillips argues that the state court modification of one of his prior convictions nullified the government’s notice of enhancement and that our reference to § 2D1.1 in our order denying his motion to proceed on appeal IFP now precludes us from finding that he was sentenced to a mandatory minimum term of imprisonment. II. DISCUSSION “We review de novo a district court’s conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir.2008) (per curiam). A district court may modify a term of imprisonment in the case of a defendant who was sentenced to a term of imprisonment based on a sentencing range that subsequently has been lowered by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2). Any reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. The applicable policy statements, found in U.S.S.G. § 1B1.10, prohibit a reduction where an “amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10, comment. (n.l(A)). Moreover, a sentencing adjustment under § 3582(c)(2) does not constitute a de novo resentencing, and “all original sentencing determinations remain unchanged with the sole exception of the guideline range that has been amended since the original sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir.2000). Finally, we have held that where a defendant was sentenced to a statutory mandatory minimum sentence, he is precluded from receiving a sentence reduction pursuant to Amendment 706 and 18 U.S.C. § 3582(c)(2). See United States v. Williams, 549 F.3d 1337, 1341-42 (11th Cir.2008) (per curiam). In this case, we conclude that Phillips was sentenced to a statutory mandatory minimum sentence of life imprisonment. The reference to § 2D1.1 in our previous order was intended to highlight the fact that Phillips’s guideline sentence was calculated pursuant to § 2D1.1, subject to § 841(a)(1)(B), as opposed to the career offender guideline provision. This observation in no way modified Phillips’s sentence or suggested that he was sentenced to anything other than the statutory mandatory minimum sentence of life imprisonment. As such, Amendment 706 does not have the effect of lowering his applicable guideline range. See Williams, 549 F.3d at 1341. III. CONCLUSION Phillips appeals the district court’s denial of his motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). Because he was sentenced to a statutory mandatory minimum term of life imprisonment, Amendment 706 does not lower his applicable guideline range. Consequently, Phillips is not eligible for a reduced sentence. We AFFIRM. AFFIRMED.

RAKOFF, District’Judge. In the idiom of economic crime, a “kickback” is a kind of commercial bribe. “Typically, they are payments made by one business to employees of another in order to induce favorable commercial treatment from [the employees’] company.” H.R.Rep. No. 99-964, at 5 (1986), reprinted in 1986 U.S.C.C.A.N. 5960, 5962. In 1946, Congress—concerned that employees of prime contractors on certain government procurement contracts were being bribed to enter into inflated subcontracts for which the government ultimately paid—passed the Anti-Kickback Act, 41 U.S.C. §§ 51-58, to bring such conduct within the purview of federal prosecution. See H.R.Rep. No. 79-212 (1945), reprinted in 1946 U.S.C.C.S. 1081. In 1960, Congress amended the Act so as to apply to all negotiated federal contracts, and in 1986, amended it again so as to apply generally to “all Federal contracts” and thus “to enhance the government’s ability to prevent and prosecute kickback practices” that in any way touched the federal procurement process. H.R.Rep. No. 99-964, at 4, 1986 U.S.C.C.A.N. at 5961. Appellant John M. Purdy, Jr. would now have this Court read the amended statute, contrary to its language, history, and pur-, pose, to preclude prosecution of any kickback-paying subcontractor who did not consciously intend to defraud the government itself. We decline the invitation and affirm appellant’s conviction and sentence. Purdy was President and Chief Executive Officer of The Purdy Corporation (“Purdy Co.”), which regularly supplied helicopter parts to the Sikorsky Aircraft Division of United Technologies Corporation (“Sikorsky”). Sikorsky in turn sold the assembled helicopters to a variety of customers, ineluding the United States government. Between May 1989 and August 1990, Purdy paid tens of thousands of dollars in bribes to two Sikorsky purchasing agents, Alexander Bewino and Bruce Cafasso, in order to obtain increased Sikorsky business for Purdy Co. Of the twenty-two or more purchase orders obtained thereby, at least, seven related to government contracts on which Sikorsky was the prime contractor. The bribes only ceased after Purdy learned that Sikorsky employees were being investigated for receiving kickbacks. Purdy and a confederate, Martin Ferris, were indicted thereafter, pursuant to 18 U.S.C. § 371, for conspiring with the Sikorsky purchasing agents to violate the AntiKiekbaek Act. After a ten-day trial before the Hon. Janet Bond Arterton, United States District Judge, and a jury, Ferris was acquitted and Purdy was convicted. On December 11, 1996, Judge Arterton sentenced Purdy to thirty-seven months in prison, three years of supervised release, a period of community service, and a $250,000 fine. As his primary point on appeal, Purdy contends that conviction of conspiracy to violate the Anti-Kickback Act requires proof that the defendant specifically intended to obtain favorable treatment on government-related contracts, whereas the proof at trial showed only that Purdy intended to obtain Sikorsky business in general and was insufficient to show a specific intent to obtain government-related business. Because we disagree with the initial premise, we do not reach the issue of the sufficiency of the evidence. The gravamen of the instant offense is not a conspiracy to defraud the government, which Congress outlawed decades before the Anti-Kickback Act. Rather, from the outset, the purpose of the Anti-Kickback Act was' to reach beyond intentional frauds perpetrated directly on the government and to secure the subcontracting of government-related contracts from commercial bribery. See generally H.R.Rep. No. 79-212 (1945). As the Congress that enacted the 1946 Act recognized, the government, though not directly. defrauded, ultimately pays for such commercial bribery as occurs at the subcontracting level. Since many “prime contractors are reimbursed by the United States for the cost of all subcontracts and purchase orders performed thereunder, the Government undoubtedly bears the ultimate costs of such fees, commissions, and gratuities without receiving any benefit therefrom.” Id. Congress therefore sought to punish all those whose commercial bribery had an adverse impact on the federal treasury, regardless of whether their intent was only to defraud their immediate customer. If, in the process, deterrence was extended not only to those who specifically contemplated the government relationship in their fraud but also to other commercial bribers who thereby assumed the risk that their wrongful deeds might result in federal prosecution, so much the better. The 1960 and 1986 amendments of the Anti-Kickback Act sought to broaden its coverage even to instances of bribery not directly impacting the federal treasury. As the House Committee that authored the 1986 amendment stated: “Whatever form they take, all kickbacks serve to undermine Federal procurement____ Furthermore, inflated contract pricing is not their only effect. Kickback activity corrupts the Federal procurement system. It drives out honest competitors and destroys the markets in which the government must bargain.” H.R. Rep. No 99-964, at 5 (1986), 1986 U.S.C.C.A.N. at 5962. Accordingly, Congress substantially rewrote the statute in 1986 with the express purpose of extending the scope of the statute to any commercial bribery occurring anywhere within the federal procurement system. See id. at 10. The language of the amended statute lays bare this purpose. The section defining “Prohibited conduct” makes it unlawful, without qualification, for any person “to provide, attempt to provide, or offer to provide any kickback” or “to solicit, accept, or attempt to accept any kickback.” 41 U.S.C. § 53. “Kickback,” in turn, is defined as “any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to any prime contractor, prime contractor employee; subcontractor, or subcontractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contract or in connection with a subcontract relating to a prime contract.” Id. § 52(2). Since “prime contractor” means “a person who has entered into a prime contract with the United States,” id. § 52(5), and “subcontractor” means any other person “who offers to furnish or furnishes any supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with such prime contract,” id. § 52(8), the result is to impose liability on any person who makes a payment to any other person involved in the federal procurement process for the purpose of obtaining favorable treatment. ' Purdy, however, argues that an offender must have the more specific purpose of obtaining favorable treatment on a government-related contract (tantamount to a specific intent to defraud the government). To support this interpretation, he would, first, interpret the word “purpose” in § 52(2) to modify everything in the definition of “kickback” that follows thereafter, making the language about “in connection with a prime contract or ... subcontract” part of the intent element rather than simply an objective requirement in its own right. Second, Purdy would modify the intent requirement to include language that forms no part of § 52(2) itself but can only be found in the further definition of “prime contract,” to wit, “a contract or contractual action entered into by the United States.” 41 U.S.C. § 52(4). This strained interpretation—which would create an additional, artificial burden to effective implementation of a statute Congress sought to broaden and streamline—finds no support in either the other language of the statute or the purpose of the law. Rather, it is directly refuted by the pertinent legislative history, which states that the “purpose” language “is' intended to expand the coverage of the existing Act to kickbacks made in the Federal procurement process for any improper purpose,” H.R.Rep. No. 99-964, at 11 (1986), 1986 U.S.C.C.A.N. at 5968, and is not intended, as Purdy argues, to narrow the preexisting interpretations of the Act that did not make knowledge of any of the terms of the prime contract an element of liability, see Hanis v. United States, 246 F.2d 781, 784-86 (8th Cir.1957). Indeed, the Committee Report expressly treats the portion of the definition of kickback relating to connection with a prime contract or subcontract not as part of the “purpose” provision but rather as “intended to ensure the Act’s broad coverage over kickbacks that may be made by subcontractors who are in any contractual relationship related to the performance of the government’s prime contract.” H.R.Rep. No. 99-964, at 12 (1986), 1986 U.S.C.C.A.N. at 5969. In short, kickbacks made at any point in the government procurement process for the purpose of improperly obtaining favorable treatment are prohibited by the Act, regardless of whether or not the offender knew of the government involvement. Cf. United States v. Feola, 420 U.S. 671, 684, 95 S.Ct. 1255, 1263, 43 L.Ed.2d 541 (1975) (defendant need not know that victim a federal officer to be guilty of assaulting a federal-officer within 18 U.S.C. § 111). It follows from this conclusion that Purdy’s claim that the evidence was insufficient to establish his intent to obtain government-related business is entirely irrelevant. There is no dispute that some of the subcontracts embraced within his conspiracy were in fact connected' to prime contracts with the United States, and that is sufficient to bring Purdy within the Anti-Kickback Act. Likewise, Purdy’s fallback argument, that Judge Arterton failed to instruct the jury adequately as to his “defense” that he was indifferent as to whether his kickback-procured contracts were government-related or not, is likewise irrelevant, for it was not a lawful defense. Purdy also assigns as error the district court’s refusal to let him call as a witness one Carol Voss, an agent of the Defense Contract Audit Agency, who had assisted the Government in preparing its ease and who would have testified, according to Purdy, that only seven of the twenty-two purchase orders that the Government contended were the fruits of the conspiracy related to prime contracts with the United States. While this fact was already before the jury through other evidence, Purdy argues that the testimony of a Government agent on this issue would have: (i) corroborated Purdy’s defense that he had no specific intent to procure government-related business; (ii) impeached the credibility of a material Government witness, Bewino, who had testified that some of the other fifteen orders might also be government-related; and (iii) impugned the “integrity^’ of the prosecution’s case. Although a defendant has the burden of alerting the court to his theory of relevance, see United States v. Scotti, 47 F.3d 1237, 1248 (2d Cir.1995), the first of these three arguments was not squarely raised before the district court and the second, although raised, was promptly abandoned. Indeed, when queried by Judge Arterton as to the relevance of Voss’s proffered testimony, defense counsel responded that “[t]he important thing is I think for ruling on this point is can [defendant] show a lack of integrity in the Government’s case.” District courts are entitled to hold counsel to their representations of what is important. Accordingly, we think the first two relevancy arguments were not preserved for appeal. Even if Purdy had not waived these two arguments, however, the first argument—that Voss’s testimony would have supported Purdy’s defense that he had no intent to procure government-related business—is rendered moot by our holding above that no such defense is legally cognizable. It also follows that any value the Voss testimony would have had for Purdy’s second purpose—the impeachment of Bewino’s testimony that many of the twenty-two purchase orders were government-related—would relate to a collateral issue. Extrinsic evidence offered for impeachment on a collateral issue is properly excluded. See, e.g., Berkovich v. Hicks, 922 F.2d 1018, 1025 (2d Cir.1991); Atlas Marine Co. v. Forsikrings-Aksjeselskapet Norske Triton, No. 92 Civ. 4746(RPP), 1995 WL 498822, at *6 (S.D.N.Y. Aug. 22, 1995). Purdy’s third argument—that the jury was entitled to hear Voss’s testimony in order to assess whether the Government’s investigation and .the ensuing prosecution were conducted with “integrity”—would, if accepted as a general rule, replace the focused, truth-seeking processes of federal jury trials with invitations to rampant speeulátion and prejudicial diversion. In support of his claim that such testimony should be admitted for such a purpose, Purdy places heavy reliance on dictum in United States v. GAF Corp., 928 F.2d 1253 (2d Cir.1991). This reliance is misplaced. In GAF, this Court found error, given the “unusual history and circumstances of [the] case,” in the trial court’s ruling that the defendant, who was being prosecuted for the third time, was not entitled to introduce a bill of particulars from the first of his trials that was inconsistent with the position the Government took at the third trial. Id. at 1255. The GAF Court stated: We think that the same considerations of fairness and maintaining the integrity of the truth-seeking function of trials that led this Court to find that opening statements of counsel and prior pleadings constitute admissions also require that a prior inconsistent bill of particulars be considered an admission by the government in an appropriate situation. Id. at 1260. GAF is plainly distinguishable from the case at hand. Whereas the bill of particulars at issue in GAF was a binding legal admission by the Government, here the Government made no prior admission that Voss’s testimony would have confirmed or contradicted. The Government’s theory of how many of the twenty-two purchase orders related to government contracts may have changed over the course of its investigation, but an earlier investigative theory is hardly the equivalent of a bill of particulars or other formal admission in an earlier trial. To bind the Government forever to a preliminary investigative theory to which it never formally committed would only discourage further investigation and thereby impede the truth-finding process. Here, the Government, having allegedly begun with the belief that all twenty-two purchase orders were related to prime Government contracts, narrowed its approach by the time of trial to the contention that only seven of the purchase orders in question were definitely so related (although it still maintained that others were inferentially so related). Nothing in this modest narrowing of the Government’s approach—which did not contradict a single prior representation made by the Government to the district court—opened the door to defense proof of the Government’s having previously entertained a broader theory. Moreover, even assuming arguendo that Voss’s testimony were admissible for the foregoing purpose, Judge Arterton’s ruling could not be deemed reversibly erroneous, as “judges are accorded “wide latitude’ in excluding evidence that poses an undue risk of ‘harassment, prejudice [or] confusion of the issues’ or evidence that is ‘repetitive or only marginally relevant.’ ” United States v. Blum, 62 F.3d 63, 67 (2d Cir.1995) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986)); see also Fed.R.Evid. 403. In the instant case, evidence of how the Government’s ultimate theory had been narrowed from its initial theory would merely have distracted the jury from the central issues of the case and from its fact-finding functions. In short, under any analysis, the exclusion of Voss’s testimony provides no ground for reversal on appeal. Purdy next claims that the district court’s dismissal of one of the jurors constitutes reversible error. On the fourth day of trial, defense counsel alerted the court that a person who had been present in the courtroom during the trial had approached both Purdy’s wife and Purdy’s co-defendant Ferris, identified himself as the husband of a juror named Stallman, and expressed views that were sympathetic to the defense. Judge Arterton then questioned juror Stallman, who stated that she did not know her husband had spoken to Ferris or Mrs. Purdy and that she had not discussed the case with him. Although Judge Arterton indicated that she did not have reason to doubt the veracity of these responses, she discharged juror Stallman, over Purdy’s objection, and replaced her with an alternate. In so doing, the district court noted that the juror’s husband had been present in the court when evidence was discussed out of the jury’s hearing and stated that “the risk of a mistrial in this case is so evident from the nature of the juror’s husband’s communications, which go to the essence of his belief on the merits or purpose of this case, and it just defies any reasonable view of human nature to think that [the husband] is not going to convey in some way or another to this juror his views, and conceivably the existence of evidence that has not been admitted in this case.” After the district court excused this juror and inquired whether any relatives of other jurors were present in the courtroom, the husband of another alternate juror, Vars, responded that he was staying to watch the proceedings. Judge Arterton told him that he had a right to be there, cautioned Mr. Vars and alternate juror Vars not to discuss the case with each other, and proceeded with the evidence. Alternate juror Vars never became a full member of the jury and thus played no part in the jury’s deliberations. Purdy argues that the district court should have handled juror Stallman the same way that it handled juror Vars—by cautioning her again not to discuss the case—or should have taken steps short of discharge, such as the sequestration of the jury. According to Purdy, the discharge of Stallman prejudiced him significantly, both because of the “interest of an accused in retaining a chosen jury,” Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978) (dictum), and because the Government was probably eager to have juror Stallman removed because of the risk that she independently held views similar to those held by her husband. District courts, however, have broad discretion under Federal Rule of Criminal Procedure 24(c) to replace a juror at any time before the jury retires if there is reasonable cause to do so, and a reviewing court will only find abuse of that discretion where there is “bias or prejudice to the defendant.” United States v. Gambino, 951 F.2d 498, 503 (2d Cir.1991) (internal quotation marks omitted); see also United States v. Agramante, 980 F.2d 847, 850 (2d Cir.1992) (per curiam). “Prejudice” in this context exists when the discharge is without “factual support, or for a legally irrelevant reason.” United States v. Fajardo, 787 F.2d 1523, 1525 (11th Cir.1986) (quoting United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.1978)) (internal quotation marks omitted). Here, the situations of juror Vars and juror Stallman were entirely different from one another. Unlike Stallman’s husband, Vars’s husband, although present in the courtroom, had not expressed any particular views about the case or approached the defendants or their relatives and discussed the ease with them. Mr. Stallman’s actions in these respects, and his obvious interest in the merits of the case, gave the district court ample reason to infer that Mr. Stallman, someone who had no sworn duty and over whom the court had no control, would press his views upon his wife, regardless of any protestations she might have made. Furthermore, even if juror Stallman never discussed the case with her husband, she would inevitably have been distracted from her duty and less able to weigh the evidence independently once she understood through the district court’s questioning that her husband held a certain view of the merits of the case. These circumstances amply justified the district court’s exercise of discretion in removing juror Stallman. See Agramonte, 980 F.2d at 850; Rodriguez, 573 F.2d at 332-33. As his final point on appeal, Purdy contends that the district court erred in its interpretation and application of section 2B4.1 of the Sentencing Guidelines and thus imposed an unlawfully high sentence. Under section 2B4.1 of the Guidelines, the base offense level for kickbacks and commercial bribery is eight, and the offense level is then adjusted upward, using the table in section 2F1.1, in accordance with the “value of the bribe or the improper benéfít to be con ferred” (whichever is greater). U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2B4.1(b)(1) (1996). However, if the value of the benefit cannot be determined, the value of the bribe must be used. See id. § 2B4.1 Commentary Background. As further commentary to the Guidelines suggests, the “benefit to be conferred” is normally calculated in such situations on the basis of the profits realized (or intended to be realized) on sales obtained by bribery. Lacking appropriate data to make this calculation, however, the district court instead calculated the “benefit to be conferred” by taking initial internal price estimates prepared for each of the twenty-two sales to Sikorsky and subtracting these amounts from the ultimate prices negotiated with Sikorsky—there being testimony that the bribes enabled Purdy Co. not only to obtain the contracts but also to inflate the price estimates submitted to Sikorsky. Applying this approach to all twenty-two purchase orders in evidence, the court calculated the “improper benefit to be conferred” in this case as $1,176,155, yielding an elevenlevel increase in Purdy’s offense level. The approach taken by the district court was fully supported by evidence introduced at trial and well within the court’s discretion. While Purdy strenuously challenges the accuracy and reliability of the initial price estimates, these same challenges were raised at trial and the district court was in a position to assess their validity. We see no error, much less clear error, in the district court’s findings. We note, moreover, that under section 2B4.1, the “improper benefit conferred” need not be determined with perfect accuracy. See United States v. Hang, 75 F.3d 1275, 1284 (8th Cir.1996); U.S.S.G. § 2B4.1 Commentary Background (noting that the amount may be “estimated”). In only one respect was the district court’s approach logically flawed, but the error is harmless. Specifically, had the initial price estimates been submitted directly to Sikorsky without the antecedent bribes, they undoubtedly would have been negotiated downward (except in the case of two contracts that were obtained by competitive bidding), so that the difference between the putative untainted prices and the actual bribe-obtained prices would have been even greater than the district court determined. But since correction of this error could only have further disadvantaged the defendant, and the Government has not chosen to appeal the sentence, the error is harmless and the sentence is affirmed. Accordingly, we affirm the district court’s judgment in all respects. . 18 U.S.C. § 371 reads, in pertinent part: "If two or more persons conspire either to commit any offense against the United. States, .or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.” Purdy and Ferris were indicted (under the first clause) for conspiring to commit a federal offense, to wit, violation of the Anti-Kickback Act, rather than (under the second clause) for conspiring to defraud the United States. . See the second clause of 18 U.S.C. § 371 (not here utilized), supra n. 1, criminalizing any conspiracy "to defraud the United States.” See generally Abraham Goldstein, Conspiracy to Defraud the United States, 68 Yale L.J. 405 (1959). . Purdy’s only other appellate objection to Judge Arterton’s jury charge—that the charge on statute of limitations failed to convey adequately his theory of defense on this aspect—is likewise unavailing. As Purdy concedes, the charge was "technically accurate.” The only portion of Purdy’s requested charge on limitations that the district court declined to give was his one-sided summary of the evidence on this issue, which he argued to the jury on summation, thus fully apprising the jurors of how the defense believed the court's charge should be applied to the facts of the case. . Neither side disputes that, for purposes of sentencing, all 22 purchase orders embraced by the conspiracy should be considered, even if not all related directly to government prime contracts. This is also fully consistent with the view we take of the broadening effect of the 1986 amendment to the Anti-Kickback Act.

BRYSON, Circuit Judge. The Office of Personnel Management (“OPM”) separated petitioner Richard J. O’Brien from his position with the agency following a reduction in force. Mr. O’Brien appealed, and the Merit Systems Protection Board sustained his removal. Mr. O’Brien argues that he was not placed in a proper “competitive area” and that he was therefore denied an opportunity to compete for retention during the reduction in force. We conclude that substantial evidence supports the decision of the administrative judge that Mr. O’Brien was placed in a proper competitive area and that Mr. O’Brien’s competitive area, although small, was lawfully constituted under the pertinent statute and regulations. We therefore affirm. I Mr. O’Brien was employed as a management analyst in the Federal Quality Institute (“FQI”), a subdivision of OPM. FQI was the office responsible for implementing Total Quality Management principles within the government. Mr. O’Brien’s role at FQI was to direct - the President’s Quality Award Program, a competitive program that recognized superior efforts by federal- agencies in applying those principles. As of 1995, Mr. O’Brien had a total of 41 years of government service, including five years at FQI. FQI was adversely affected by proposed cutbacks in OPM’s budget for fiscal year 1996. Congress’s proposed budget sharply reduced OPM’s allocation and eliminated all funding for FQI. In July 1995, QPM determined that the proposed budget cuts would require consolidation of certain agency func tions and a reduction in force. FQI was slated to be abolished and its principal duties transferred to the Office of Exeeutivé Resources, another subdivision within the ageney. Before 1995, FQI and several other subdivisions of OPM had been grouped together as part of the “Office of the Director,” which was designated as a single competitive area. The significance of that designation is that, in the event of a reduction in force, employees compete for retention with other employees in their competitive area whose job classifications place them in the same competitive level. See 5 C.F.R. part 351. In general, the larger an employee’s competitive area, the better the employee’s chances of retention in case of a reduction in force. In early 1995, OPM conducted an internal reorganization. Following the reorganization, employees in OPM’s headquarters operations were grouped into 15 competitive areas. FQI became a separate competitive area, although it had only nine employees. The effect of the new classification was that FQI employees were not permitted to compete with other OPM employees for retention during the reduction in force. Because FQI was abolished in its entirety, Mr. O’Brien and the other FQI personnel were all separated effective September 29,1995. Mr. O’Brien appealed his separation to the Merit Systems Protection Board. Before the administrative judge, he argued that the reduction in force was unnecessary, that he was denied “transfer of function” rights when his duties were shifted to the Office of Executive Resources, that OPM had improperly designated FQI as a single competitive area, and that his separation was the result of age discrimination by the agency. The administrative judge rejected each of those arguments and sustained Mr. O’Brien’s separation. The full Merit Systems Protection Board denied Mr.' O’Brien’s petition for review. Vice Chair Slavet, however, dissented from the denial of the petition. In her dissenting opinion,'Vice Chair Slavet focused on the competitive area issue, explaining that in her view FQI could be a proper competitive area only if the head of FQI possessed “appointing- authority.” O’Brien v. Office of Personnel Management, 75 M.S.P.R. 300, 307 (1997). Because Vice Chair Slavet found no evidence in the record attributing such authority to the head of FQI, she would have reversed Mr. O’Brien’s separation. On appeal, Mr. O’Brien raises only his challenge to the designation of FQI as a separate competitive area. Adopting the reasoning of Vice Chair Slavet’s dissent, Mr. O’Brien argues that OPM did not satisfy its burden to prove that the head of FQI possessed appointing authority, and that FQI therefore did not have sufficient independence to qualify as a separate competitive area. Mr. O’Brien also argues that FQI was not a proper competitive area because its small size precluded any competition for retention during the reduction in force. II OPM asserts that the court should refuse to consider the merits of Mr. O’Brien’s appeal because he failed to present his argument concerning appointing authority to the administrative judge. Although Mr. O’Brien’s legal arguments have evolved throughout his appeal, he has consistently challenged the scope of his competitive area. That Mr. O’Brien has chosen to formulate his proposed legal test as turning on “appointing authority” does not alter the basic issue on appeal, which is whether OPM satisfied its legal burden to demonstrate that FQI is a proper competitive area. See Yee v. City of Escondido, 503 U.S. 519, 534-35, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). We therefore conclude that Mr. O’Brien has preserved for review the issue of the scope of his competitive area, and we turn to whether substantial evidence supports the administrative judge’s conclusion that OPM satisfied its burden of proof on that issue. III During a reduction in force, federal employees may compete for retention based on tenure of employment, military preference, length of service, and efficiency or performance ratings. See 5 U.S.C. § 3502(a). Employees may compete for retention, however, only with employees in the same competitive area. See Grier v. Department of Health & Human Servs., 750 F.2d 944, 945 (Fed.Cir.1984). Retention competition is limited to competitive areas in order to nunimize disruption in the operation of government agencies following a reduction in force. See Bashein v. United States, 150 Ct.Cl. 138, 279 F.2d 255, 257 (1960). OPM has promulgated regulations instructing agencies on how to define their competitive areas. Under the regulations in effect when OPM conducted its reduction in force, the minimum permissible competitive area for a headquarters operation was a “major subdivision” of the agency. See 5 C.F.R. § 351.402(b) (1995). This court has recently interpreted that language, in accordance with OPM’s own administrative manuals, to require that a minimum competitive area be “separately organized and clearly distinguished from others in operation, work function, staff, and personnel management.” Markland v. Office of Personnel Management, 140 F.3d 1031 (1998). The personnel management requirement is satisfied if the head of the subdivision has the authority to take or direct personnel actions, including the ability to assign duties and to establish or abolish positions. See id. OPM was required to show by a preponderance of the evidence that it correctly designated FQI as a separate competitive area. See Wilburn v. Department of Transp., 757 F.2d 260, 262 (Fed.Cir.1985). The record supports the administrative judge’s findings that FQI was distinct from other subdivisions in terms of operation, work function, and staff, and Mr. O’Brien has not challenged those findings on appeal. The ■issue on which he focuses is whether the head of FQI possessed sufficient personnel management authority to render FQI a major subdivision of OPM. The administrative judge found that OPM had satisfied its burden on that issue. Our review is limited to assessing whether that decision is supported by substantial evidence. See 5 U.S.C. § 7703(c). Substantiality of evidence is reviewed on the entire record, taking into consideration both the evidence that supports the factfinder’s decision and the evidence that “fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Substantial evidence requires “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 477, 71 S.Ct. 456; see Dixon v. Department of Transp., 8 F.3d 798, 804 (Fed.Cir.1993). Our review in this case is complicated by the paucity of evidence introduced by either side regarding the propriety of OPM’s designation of FQI as a separate competitive area. While Mr. O’Brien’s discovery requests and written pleadings clearly raised the issue, he introduced no evidence to support his contention that FQI was improperly designated as a separate competitive area, nor did his representative question agency personnel on the issue at the hearing. The agency also gave the competitive area issue short shrift at the hearing, preferring to concentrate on other issues that appeared at that time to be more central to Mr. O’Brien’s case. Mr. O’Brien argues first that because OPM did not prove that the head of FQI had “appointing authority,” substantial evidence does not support the administrative judge’s conclusion that FQI was a valid competitive area. That argument has already been rejected by the court in Markland insofar as it pertains to the formal power to process appointments and separations. While formal appointing authority may be an indicator of personnel management authority, it is not required to establish a valid competitive area. See Markland, 140 F.3d 1031 In concluding that FQI was a proper competitive area, the administrative judge relied on the declaration and testimony of Penelope Oland, a Senior Personnel Management Specialist at OPM. Ms. Oland was asked if she knew how the FQI competitive area was established. She responded that as part of an agency redesign, “a review was made of all the competitive areas in the agency” in February 1995. As a result of that review, she testified, any offices that had “full delegated personnel' management authorities” were designated as separate competitive areas. Her declaration was to the same effect, stating that “FQI was made a single competitive area to be consistent with OPM’s policy that central office organizations with full personnel authorities constitute a single competitive area.”' Ms. Oland did not elaborate on the meaning of the term “full delegated personnel management authorities” or “full personnel authorities.” Nor did her testimony or her declaration contain any specific discussion of the scope of authority granted to the head of FQI regarding personnel matters. Nonetheless, the administrative judge noted that Mr. O’Brien had “provided no evidence to refute the agency’s sworn testimony and evidence that the agency’s defined competitive areas were proper.” In effect, the administrative judge held that the agency had established a prima facie case that was sufficient in the absence of any rebuttal. See Schapansky v. Department of Transp., 735 F.2d 477, 482-83 (Fed.Cir.1984). We hold that Ms. Oland’s testimony and declaration satisfy the substantial evidence standard, although we regard the issue as a close one. By choosing to offer only the sparest account of why FQI was made a separate competitive area, the government flirted with the line between the presentation of probative evidence and the use of a witness simply to state a legal conclusion. Had Mr. O’Brien sought to challenge Ms. Oland’s testimony, either by questioning her basis for knowledge or offering some reason to doubt the correctness of her assertion that the offices that were designated as separate competitive areas had “full delegated personnel management authorities,” we might have found her testimony not to constitute substantial evidence that FQI was a properly constituted competitive area. But Ms. Oland’s testimony on that issue was unchallenged and unrebutted,- and in light of the absence of contrary evidence, we find it sufficient to sustain the administrative judge’s ruling. Although before the Board Mr. O’Brien offered nothing to undermine the government’s evidence on the competitive area issue, on appeal he seeks to blunt the force of that evidence by pointing to the Revised Delegation of Authorities (the “Delegation”) from the Director of OPM dated March 17, 1995, which was in the administrative record. The Delegation addresses the specific powers and duties of office heads (including the head of FQI) with respect to personnel management, making it particularly relevant to the issue in this case. The cover letter accompanying the Delegation states that it was prepared in response to the February 1995 agency redesign. The Delegation gives office heads the authority to “request approval of personnel actions,” and states that the Director of the Office of Human Resources and Equal Employment Opportunity (“OHR”) is to “serve as final approval authority for personnel actions.” Mr. O’Brien argues that this distribution of responsibilities demonstrates that the head of FQI could not exercise personnel management authority of the type envisioned by the competitive area regulation, because any such actions were effective only if approved by the Director of OHR. OPM responds by arguing that the “final approval authority” vested in OHR is merely the type of ministerial “appointing authority” we have already rejected as a basis for contesting a competitive area. Another portion of the Delegation states that “Heads of Other Offices” may establish or abolish positions within their organizations only “if delegated [that authority] by agreement from the Director, Office of Human Resources and EEO.” There was no evidence before the Board of any specific delegation from the Director of OHR to the head of FQI regarding the authority to establish and abolish positions. The problem with Mr. O’Brien’s reliance on those portions of the Delegation is that he offered no evidence before the Board regarding their meaning. As a result, the administrative judge had no basis on which to determine that the reference to OHR’s “final approval authority” contemplated a substantive role for OHR in the exercise of personnel management authority, rather than a merely ministerial “appointing” role. There was likewise nothing in the record from which the administrative judge could conclude that the requirement of delegated authority from OHR to create and abolish positions was a new requirement, rather than simply a restatement of the preexisting practice within the agency. Accordingly, the Delegation, standing by itself, did not undermine the force of Ms. Oland’s testimony that the head of FQI had “full delegated personnel management authorities” and that FQI was designated as a separate competitive area for that reason. Indeed, the fact that FQI was not formally designated as a competitive area until after the promulgation of the Delegation—together with' Ms. Oland’s testimony that it was the policy of OPM to designate as separate competitive areas all offices with “full delegated personnel management authorities”—supports OPM’s argument that the Delegation did not withdraw personnel authority previously possessed by the head of FQI. In sum, while the evidence offered by OPM regarding the competitive area issue is minimal, we conclude that it is sufficient to satisfy the “substantial evidence” standard in light of the absence of any contrary evidence from Mr. O’Brien. rv In addition to his challenge to the sufficiency of the evidence supporting the designation of FQI as a separate competitive area, Mr. O’Brien makes the broader claim that the selection of FQI as a competitive area was contrary to 5 U.S.C. § 3502, the statute that governs the order of retention for employees in a reduction in force. Section 3502 requires OPM’s retention regulations to give “due effect” to tenure of employment, military preference, length of service, and efficiency or performance ratings. Mr. O’Brien argues that the statute must be interpreted to provide that “at some level and to some degree, there must be competition for retention in a reduction in force.” Because Mr. O’Brien’s entire competitive area was abolished, he was not able to compete with any other employees for retention. He argues that, at least in the circumstances of this case, the lack of any opportunity for him to compete for retention violated the principles underlying section 3502. Mr. O’Brien acknowledges that there are situations in which members of a competitive area will not be able to compete for retention. For example, a competitive area may consist of a large subdivision of an agency or all employees of a regional office of an agency in a particular commuting area; if the subdivision or the regional office is abolished, all employees in the competitive area are subject to removal, and none will be entitled to compete for retention. Moreover, where circumstances require that a competitive area be small, Mr. O’Brien acknowledges that an employee may lawfully be denied the opportunity to compete for retention because of the small size of his competitive area. See Ginnodo v. Office of Personnel Management, 753 F.2d 1061 (Fed.Cir.1985) (upholding removal of employee in a one-person competitive area over objection that he should have been allowed to compete for retention with employees in other competitive areas). Mr. O’Brien’s argument, in essence, is that OPM’s only stated reason for making FQI a separate competitive area was that it was OPM’s policy to make separate competitive areas of each subdivision of the agency with full personnel management authorities. That policy, according to- Mr. O’Brien, is not a sufficiently compelling justification to override the statutory preference in favor of competition for retention, particularly in this ease where FQI had previously been part of a larger competitive area and was made its own competitive area shortly before it was abolished. It is true that FQI was a very small competitive area, and that the smaller an employee’s competitive area the poorer the employee’s chances to compete successfully for retention in the event of a reduction in force. Nonetheless, there is nothing in the statute or its implementing regulations that guarantees competition. See Ginnodo, 753 F.2d at 1063 (“[W]hile the regulations promulgated pursuant to 5 U.S.C. § 3502 create retention rights among competing employees in a competitive area, they do not guarantee that there will be positions for which employees may compete.”); Grier, 750 F.2d at 945 (‘We have found no statute, regulation or case law which requires an agency to expand a competitive area for the sole purpose of providing actual competition for a job.”). Section 3502 merely requires the regulations to “give due effect” to the factors of tenure, length of service, military preference, and performance ratings. The OPM competitive area regulations do just that, by using those factors to determine the rankings of employees within each competitive area and competitive level. And the OPM regulations limit the extent to which agencies can reduce the size of their competitive areas: in the agency’s headquarters operation, the competitive areas must constitute at least a “bureau, major command, directorate, or other equivalent major subdivision” of the agency. 5 C.F.R. § 351.402(b) (1995). Mr. O’Brien contends that a unit such as FQI, with only nine employees, cannot reasonably be considered a “major” subdivision of an agency with approximately 2000 employees in its headquarters operation. But he does not suggest any criterion for determining how many employees would be required to constitute a “major” subdivision. OPM’s functional definition of what constitutes a “major subdivision” of an agency—a unit that is separately organized and clearly distinguished from others in operation, work function, staff, and personnel management— represents a reasonable accommodation of the interest in promoting retention competition and the need for retaining flexibility for governmental organizations that differ greatly in size and structure. Mr. O’Brien cites the opportunity for manipulation that is presented by interpreting the OPM regulations to permit competitive areas to be designed in accordance with the organizational independence of subdivisions within an agency. Although it is true that under the OPM regulations an agency can decentralize its operations and create multiple competitive areas if it wishes to do so, we think it unlikely that an agency would choose an organizational scheme for the sole purpose of enabling it to designate small competitive areas and deny employees the opportunity to compete for retention in the event of a reduction in force. In any event, OPM’s competitive area regulation does not violate the statutory mandate in section 3502, which gives OPM broad discretion in formulating its retention regulations, and the selection of FQI as a separate competitive area did hot violate any requirement of the OPM regulations. We therefore uphold the administrative judge’s determination that FQI was validly made a separate competitive area within OPM. AFFIRMED.

GEE, Circuit Judge: Plaintiffs Anadarko Petroleum Corporation (“Anadarko”) and its wholly-owned subsidiary Pan Eastern Exploration Company (“PEEC”) own the natural gas rights in certain sections of land in the Panhandle Field of Texas. Certain of the defendants own the oil and casinghead gas rights in the same sections. The plaintiffs sued, claiming that some defendants wrongfully produced their gas, and that other defendants purchased, processed, and transported the converted gas. The defendants argued that they did not take the plaintiffs' gas; also, they asserted that even if they did the taking was with the consent of the plaintiffs or their affiliate corporation Panhandle Eastern Pipe Line Company (“PEPL” or “the pipeline”) whose acts were binding on the plaintiffs. Some defendants made counterclaims against the plaintiffs and claims against PEPL. The jury rejected all claims by all parties. Plaintiffs and certain defendants appeal from various orders and from judgment entered on the jury verdict. We affirm in large part and remand in part for further proceedings. A. The Facts Beneath the surface of the Texas Panhandle is a vast hydrocarbon reservoir that since 1917 has produced huge quantities of oil and gas. The parties vigorously dispute the precise geological structure of this reservoir, but roughly speaking the upper formations — the so-called Red Cave, Brown Dolomite, and Moore County Lime formations — tend to be more productive of gas while the lower formations — the Granite Wash being the only one relevant here— tend to be more productive of oil. Throughout much of this region the right to produce gas from beneath a given tract has been severed from the right to produce oil and casinghead gas, so that one party may own the gas rights and another party the oil and casinghead gas rights throughout all horizontal formations beneath the very same piece of land. The division of gas rights from oil rights in the Panhandle Field of Texas apparently occurred many years ago, but only recently — under new market incentives to produce valuable “undedicated” natural gas — the oil and casinghead gas owners and their lawyers discovered that the division of rights is a rich deposit of legal ambiguities waiting to be mined. With the advent of new drilling and legal strategies, the so-called “split leases” have now for several years produced a steady flow of gas, controversy, and litigation. This massive case may be one of the last surges in production, reaching our Court as Texas administrators and courts have started to limit the flow. 1. The Parties PEPL held gas leases and owned the gas wells on the disputed sections for many years. Anadarko was its wholly-owned subsidiary, formed to hold and develop various properties including some of the leases at issue in this case. In the early 1970s, PEPL assigned the ownership of the wells to PEEC, a newly-formed subsidiary of Anadarko. This assignment, undertaken with the permission of the Federal Power Commission, allowed PEEC to charge more for the gas under federal regulations than could its super-parent PEPL. In the early 1980s, PEPL spun back a new corporate parent called Panhandle Eastern Corporation, turning itself into an affiliate rather than the parent of the plaintiffs. The scorecard then looked like this: Panhandle Eastern Corporation — the tiew corporate parent — owned all the stock of PEPL and of plaintiff Anadarko; Anadarko in turn owned all the stock of plaintiff PEEC. At all times relevant to this dispute PEPL was an affiliate of the plaintiffs. Plaintiff Anadarko was a fully-functioning exploration and production subsidiary of Panhandle Eastern Corporation with hundreds of employees and various corporate activities. Plaintiff PEEC, on the other hand, was what a non-lawyer would call a “shell” corporation. It owned several former PEPL wells but had only one full-time employee. Anadarko took care of the day-to-day management of PEEC’s affairs, while PEPL continued to operate PEEC’s gas wells (formerly PEPL’s wells) under a contract denominating it an “independent contractor” of PEEC. PEPL’s responsibilities for PEEC’s wells included administrative, legal, field, and office work, including regulatory, purchasing, insurance, taxation, negotiation, and accounting services on behalf of PEEC. As is typical of such a corporate “family,” Panhandle Eastern Corporation (the parent), Anadarko and PEEC (the plaintiffs), and PEPL (the affiliate) had interlocking but not identical officers and directors. The profits and losses of all members of the Panhandle Eastern family were aggregated for purposes of financial statements and periodic disclosures to the Securities Exchange Commission (Panhandle Eastern Corporation was a publicly held corporation). At all times, however, all corporate formalities were strictly observed and there is not a hint in the record of any legal irregularities in the way the various affiliates operated. The plaintiffs sued a number of defendants for conversion and other wrongs. The parties have divided the defendants into functional groups. The “operator defendants” are the persons and entities that drilled and produced the oil wells or that owned a working interest in the wells; this group includes the two main operators Hufo Oils and Ted True, Incorporated and their owners. The “processing defendants” are Mitchell Energy & Development Corporation and its subsidiary Liquid Energy Corporation; these defendants installed a small gas plant on the property that processed the gas produced by the operator defendants before it was sold to the pipeline defendants. The “pipeline defendants” are Houston Natural Gas and its subsidiaries Houston Pipe Line Company and Intra-tex Gas Company; along with PEPL, the operator defendants’ first customer, these pipeline companies purchased gas from the operator and processing defendants. Finally, the “bank defendants” are Canadian Commercial Bank and First National Bank in Albuquerque; they loaned money to Ted True, Inc. to drill and complete many of the wells at issue in this case. 2. Producing Casinghead Gas for Fun and Profit (a) The Beginnings of the Dispute In 1981, Hufo Oils, a partnership of defendants Lynn Hunt and Carl Foulds, obtained an oil and casinghead gas lease covering certain sections of land in which the plaintiffs held the gas rights. Hufo Oils assigned working interests to a number of investors. The investors elected Hufo Production Corporation, also owned by Hunt and Foulds, to be the operator of the leases. Hufo’s leases were initially limited by horizon to the Red Cave and the Granite Wash formations, the most shallow and deepest formations in the Panhandle Field. After drilling the first well, Foulds thought that the formations between the Red Cave and Granite Wash — including the Brown Dolomite and Moore County Lime— looked promising for oil and casinghead gas production. Hufo later obtained new leases from the landowners, giving it the oil and casinghead gas rights throughout all these formations. Meanwhile, Hunt approached PEPL. gas purchase agent John Gurche to see if the pipeline would be interested in purchasing the casinghead gas that Hufo planned to produce. Apparently, Hunt sought out PEPL because it was already purchasing gas from Hufo at other locations in the Panhandle Field. The pipeline was eagerly looking for new supplies of gas because at that time there was a tremendous unmet demand for gas. At first, Gurche and pipeline engineers studied Hufo’s proposal and rejected it because the initial projected volumes from the Red Cave and Granite Wash were too small to justify the necessary expenses in hooking up the wells to the pipeline. In late 1981, Hunt once again approached Gurche with an offer to sell casinghead gas to the pipeline. This time, the pipeline’s engineers projected total gas production more than 20 times greater than that of the original proposal; a satisfied Gurche then sent Hufo a proposed long-term casinghead gas contract. Before the contract was executed, however, Gurche’s supervisor Richard Dixon ordered that the pipeline cease all casing-head gas purchases until further notice. Dixon was the senior vice president of gas supply at PEPL; he was also the Chief Executive Officer of plaintiff PEEC and a member of plaintiff Anadarko’s board of directors. Dixon wanted to review the growing controversy in the Panhandle Field over “white oil” operators (such as Hufo) before proceeding with gas purchases from them. (b) The “White Oil” Controversy No geological formation contains either natural gas or crude oil alone; there are always some liquid hydrocarbons in a formation of gaseous hydrocarbons, and vice versa. In consequence, all oil wells produce at least trace amounts of gas and gas wells produce at least trace amounts of oil. Frequently, legitimate oil wells produce a great deal of gas, and gas wells a measurable amount of oil. There is no inherent or metaphysical distinction between oil wells and gas wells; it just depends on what comes up. Therefore, the State of Texas sensibly classifies oil wells and gas wells based on the ratio between the amount of oil produced and the amount of gas produced: if the gas-to-oil ratio (“GOR”) is greater than 100,000 cubic feet of gas per barrel of oil, the well is a gas well; if the GOR is less than or equal to 100,000 cubic feet of gas per barrel of oil, the well is an oil well. See Tex.Nat.Res.Code § 86.002(5)-(6) (1978). For several years before Hufo began drilling the wells in this case, operators had been buying up oil and casinghead gas rights in the Panhandle Field, then drilling putative oil wells and producing some oil along with large quantities of gas. At that time, the market for natural gas was booming, and the value of new “undedicated” gas was high. The primary economic value of these oil wells was in the casinghead gas. These new “casinghead gas wells” were controversial for several reasons. First, there was a general feeling (among the gas producers, anyway) that it was wrong for “white oil” operators to produce casing-head gas from the Brown Dolomite and Moore County Lime formations because, although there had long been oil production from these formations in a few locations around the Panhandle Field, the Brown Dolomite and Moore County Lime had historically been viewed as “dry gas” formations. Second, and more to the point, there were two completion and production practices associated with the “white oilers” that were of dubious legality. The first gave them their name: many such operators asserted that they could count the volatile hydrocarbon liquids called “white oil” created at the surface from casinghead gas with “low temperature extraction” or LTX units as “oil” for purposes of computing their GOR and classifying their wells as oil wells. See generally Colorado Interstate Co. v. Hufo Oils, 802 F.2d 133 (5th Cir.1986). Since a good deal of the volume of the gas can be converted to liquids, if this practice was legal a well that would otherwise be a statutory gas well could be converted into a statutory oil well by installing an LTX unit at the surface. The second dubious practice — typically referred to as the “high perforations” issue — was that the oil operators would drill their wells down to the deeper oil-producing strata, but would perforate (shoot holes in the casing and the rock) at higher levels (usually in the Brown Dolomite and Moore County Lime) where gas wells had been producing for years with little show of oil. These “high perf” wells frequently would qualify as statutory oil wells even without the use of LTX units. The cautious oil operators asserted that they were producing both oil and gas through the high perforations; they did so in order to meet the definition of casinghead gas as “gas or vapor indigenous to an oil stratum and produced from the stratum with oil.” Tex.Nat.Res.Code § 86.002(10) (1978). But the gas owners were suspicious that the oil produced by these wells was coming predominantly — if not totally — from the low perforations in the oil zones while the gas was coming from the high perforations in “their” gas zones. This case more concerns the second of these problems than the first: The operator defendants used an LTX unit on a few of their oil wells, but neither used the LTX liquids to qualify the wells as statutory oil wells nor asserted a right to do so. The central issue in the case, as will soon ap pear, was whether the defendants wrongfully produced the plaintiffs’ gas through high perforations in the Brown Dolomite and the Moore County Lime. (c) The Hufo Contract So Richard Dixon, vice president of gas supply for PEPL and CEO of plaintiff PEEC, decided to slow down, stand back and take stock of the situation. The pipeline was buying large quantities of putative casinghead gas from oil operators in the Panhandle Field, and it was planning on buying more. But the “white oil” practices were already being challenged in a. widely-publicized administrative proceeding before the Railroad Commission, and there were rumblings on the “high perforations” issue as well. In consequence, all purchases of casinghead gas ceased in February 1982 while PEPL officials tried to assess the risks involved in purchasing gas from “white oil” operators such as Hufo. Dixon and other PEPL officials met in early February to discuss the problems surrounding the purchase of casinghead gas. After the meeting, Dixon and the others decided to proceed with the Hufo contract. This decision and the circumstance surrounding it are the key to the defendants’ affirmative defenses. We will discuss it in detail below in section A.3. The contract between PEPL and Hufo called for a steady increase in Hufo’s cas-inghead gas production, with a commensurate, three-phase obligation on the part of PEPL to improve and expand its gathering facilities and to take or pay for larger and larger quantities of gas. The first phase involved minor improvements to pipeline’s facilities and purchases of up to 6,500 mcf per day. The second phase, beginning July 1982, was to involve a $350,000 expansion of facilities and the take or pay purchase of 10,000 mcf per day. And the third phase, beginning August 1983 and requiring FERC approval, was projected to cost PEPL in the range of $5 million to $9 million and to require the purchase of up to 60,000 mcf per day depending on supply. PEPL officials, well aware by this time that Hufo’s wells might drain the plaintiffs’ gas reserves, inserted a specially-crafted definition of casinghead gas designed to protect from and indemnify against claims based on the illegality of Hufo’s production practices. The parties signed the 15-year contract in mid-February 1982, and PEPL began purchasing gas from Hufo’s wells a few days later. Hufo drilled and completed several wells on the disputed sections. These wells passed the initial Railroad Commission GOR tests and were classified as oil wells. Thereafter, Hufo installed and operated a central LTX unit that removed liquids from the gas coming from all the wells. Hufo then mixed the extracted liquids with the crude oil and reported the total liquid amounts as the oil production on monthly Commission reports. This practice arguably was required by contemporaneous Commission rules and opinion letters. For reasons that are not clear from the record, Hufo’s performance did not satisfy the working interest owners, and they replaced operator Hufo with Ted True, Incorporated in November 1982. Mr. Ted True, not surprisingly the owner of Ted True, Inc., soon acquired all Hufo’s interest in the operations. (d) True’s Progress True began an ambitious drilling program. He drilled 76 wells, 21 of which became a part of this dispute. Once again, the True :wells were initially tested and passed GOR requirements without an LTX unit. While True continued to gather and to report as oil the LTX liquids from the five original Hufo wells, he did not install any LTX units on the 21 new wells. Defendant Billy Mack Gideon was an employee of True in charge of drilling, completing, and perforating the wells.' True gave him the authority to choose where to drill and where to perforate. Gideon did not have any ownership interest in the wells. Meanwhile, as True geared up for greater and greater gas production in late 1982 and early 1983, PEPL was facing a sudden turn-around in the gas market. The low supply and high demand of early 1982 disappeared, as demand slacked while new gas inventories — developed during the gas shortage — began to come on-line. Dixon ordered his buyers to stop new purchases and, in early 1983, PEPL sent telegrams to all producers telling them to defer new drilling and workovers that would increase their production. In its annual report, Panhandle Eastern Corporation (the parent corporation of PEPL and the plaintiffs) stated that the oversupply problem had become so serious that it “created uncertainties concerning the continued viability of the pipeline company.” Gurche met with True in early 1983 to find out about True’s development plans; True reported that he planned to develop the properties at the rapid pace called for in the contract. PEPL was in a bind: under the original Hufo contract, to which True had succeeded, it was obligated to complete a multi-million dollar improvement of its gathering facilities by late summer 1983 and to purchase up to 60,000 mcf of gas. If it failed to make the necessary improvements, it still had to pay True for the gas he made available. In consequence, PEPL set out to persuade True either to limit his production or to find another buyer. PEPL’s legal department considered various strategies for discouraging True from increasing production. It seized on Hufo’s failure to meet a June 1982 contractual deadline for development plans until November 1982, sending a letter to Hufo stating that it would not meet its third-phase obligations in August 1983 because of Hufo’s failure. Although the pipeline knew that True had replaced Hufo and in fact had discussed these matters with True, the letter went to Hufo because True had never formally succeeded to Hufo’s contract with the pipeline; and legal formality was part of the pipeline’s new strategy. Pipeline officials eventually decided in May or June 1983 to try to terminate the Hufo/True contract. In the meantime True, needing funds to finance his drilling operations, proposed to borrow money from the bank defendants. After reviewing independent engineering reports on True’s potential for gas production and visiting the drilling sites, defendant Canadian Commercial Bank (“CCB”) loaned True $15 million in June of 1983, funding half the loan then and the remainder during the next six months. Defendant First National Bank in Albuquerque, whose loan officer had originally explored the True deal and offered it to CCB, purchased a participation interest of $3 million in the True loan in August 1983. At about this time PEPL informed True that it would not begin phase three of the gas purchase contract because of asserted breaches of the agreement by Hufo and True. True calculated that although he could win a breach-of-contract suit against the pipeline, he could not afford the delay and cost of legal remedies. His financial pressures shot up during this time as his production income dropped to zero: first, PEPL closed its pipeline for repairs for several weeks and asserted immunity from financial liability by reason of the force majeure contract provision; second, the pipeline suspended payments for a time under appropriate contract provisions because True was being sued by another gas producer who claimed that he was stealing its gas on adjacent leases. True decided to seek other buyers for his gas rather than sue PEPL, and eventually he agreed to terminate the PEPL contract at the end of 1983. True entered into agreements with defendants Liquid Energy Corporation (“LEC”) and Houston Pipe Line Company to purchase his casinghead gas. During the negotiations, Bruce Withers, president and chief operating officer of LEC and president of the Transmission and Processing Division of LEC’s parent Mitchell, telephoned his friend Dan Kelley, then the vice president of gas supply for PEPL, to inform him of the negotiations between LEC and True and to check True’s representation that PEPL did not want the gas and was willing to cancel the contract when True found another buyer. Kelley confirmed that PEPL would release the gas as True had stated. In response to Withers’ question, Kelley stated that he had no objections to LEC’s proposed contract with True. Withers testified that he “certainly relied” on Kelley’s statements in proceeding with the True contract. LEC built a gas processing facility on the leases at a cost of $12 million. It bought some compressors from PEPL that were used in the plant; PEPL knew that LEC was building a gas processing plant and that the compressors were to be used to separate liquids from True’s casinghead gas. The plant began operation in December 1983, separating liquids in the casing-head gas from the gas stream. These liquids were mixed with the produced crude oil in storage tanks and, pursuant to advice from the Railroad Commission staff, counted as oil on Commission reports. Houston Pipe Line purchased the gas residues from the tailgate of the LEC plant. Defendant Intratex, an affiliate of Houston’ Pipe Line, later took over performance of the True contract. (e) True’s Regress True’s casinghead gas business struggled along for a time but never got off the ground. By early 1984, he was unable to pay trade creditors as accounts became due; and he fell behind on his loan payments to the bank defendants. The bank defendants then tried to exercise their contractual right to receive directly LEC’s purchase payments to True, but it is unclear from the record whether they actually received any money in this manner. In May 1984, True — both Mr. Ted True and Ted True, Inc., that is — went into bankruptcy, where they remained at the time of trial. As his financial difficulties increased, True became unable to maintain the wells properly so as to keep them producing at their full capacity. Wells in the Panhandle Field require regular maintenance to prevent paraffin from clogging the perforations. Paraffin is a thick, waxy substance that accumulates in conjunction with the production of crude oil. Moreover, oil wells must be regularly maintained and repaired because of mechanical problems such as broken pumps, holes in tubing, and parted rods. Any of these problems can reduce or eliminate a well’s oil production, but they tend to have a lesser effect on the well’s production of gas. Consequently, an oil well’s GOR tends to increase as maintenance declines; in other words, a poorly-maintained well can lose its statutory status as an oil well because it produces more than 100 mcf of gas per barrel of oil. Initially, True treated the wells for paraffin buildup about every other week, but his financial troubles caused him to cut back on the paraffin treatments to less than one a month, and finally to eliminate treating the wells altogether. In October 1984, an independent testing company performed GOR tests on nine True oil wells, eight of which are among • the 26 in dispute. The testing company counted only the crude oil that was produced and not any LTX liquids in calculating the wells’ GORs. Despite the wells’ deteriorating condition, all but one of them qualified as oil wells under the test, and, in the opinion of a witness from the testing company, the well that failed would probably have passed had it been properly maintained. After the Railroad Commission’s decision in the Phillips proceeding, in the spring of 1985, eight wells connected to an LTX unit on the lease were tested; five wells failed the test and the remaining tests were inconclusive. Finally, after this suit commenced the district court directed that the wells be re-tested or shut in. True was long in bankruptcy and was no longer operator of the wells. The working interest owners formed their own operating company but had little success with the wells as they were in bad condition, clogged with paraffin, with parted rods and pump jacks down. The investors treated and tested some of the wells but none passed the GOR tests. All wells were then shut in by order of the district court pending the outcome of this suit. There was some gas production between the time the plaintiffs brought suit and the time the wells were shut in. 3. Confusion Above: The Plaintiffs’ Ambivalence The defendants presented compelling evidence that the plaintiffs’ managers were aware that because of Hufo and True’s drilling and production practices the operator defendants might be producing gas that belonged to the plaintiffs, but nonetheless decided to proceed with the PEPL casing-head gas purchase contract because of PEPL’s overriding need for more gas. The defendants’ circumstantial evidence was elaborate and far-ranging, and we will not attempt to summarize all of it here. Instead, we focus on the behavior of three protagonists: Richard Dixon, CEO and Chairman of the Board of plaintiff PEEC, a director of Anadarko, and senior vice president of PEPL in charge of gas supply; Robert Allison, CEO and director of plaintiff Anadarko, director of PEEC, PEPL, and Panhandle Eastern Corporation, and group vice president of Panhandle Eastern Corporation; and Richard O’Shields, Chairman of the Board of Panhandle Eastern Corporation (the overall parent), PEPL, Anadarko, and director of PEEC (later Chairman of the Board of PEEC). Richard Dixon was in a tough situation. He was in charge of gas supply at PEPL and PEPL needed gas — lots of gas in a hurry. Dixon testified that he was “anxious” to find new sources of gas to meet the demands of his customers. Much of PEPL’s new gas supply was casinghead gas produced by independent “white oil” operators such as Hufo. In early 1982, Dixon learned of the Phillips proceeding, in which certain traditional gas operators were asking the Railroad Commission to forbid the use of LTX units and to prohibit high perforations in the gas zones. Dixon realized that his casinghead gas sources might be jeopardized by a ruling adverse to the independents, and this concerned him. So while his gas purchase agent John Gurche was in the middle of negotiating a contract with Hufo, Dixon ordered a moratorium on new casinghead gas purchases while he became better informed on the issues. Dixon, Gurche, and several other PEPL agents, lawyers, and engineers met in early February with a lawyer from Austin who was considered an expert on the Phillips proceeding and the “white oil” issues. Gurche memorialized the February meeting in a classic “smoking gun” memorandum to the file: Note to the File 2/8/82 Re: Hufo Oils — Potential Casinghead Gas Contract; Brent Lease Moore Co. Tx. Due to many questions surrounding cas-inghead gas in Texas which have arisen as a result of the Phillips petition to the Texas Commission, Mr. Matheson arranged for Mr. David Nelson of Akin, Gump, Hauer and Feld, law firm of Austin, Texas to come to Kansas City and brief Mr. Dixon and our company attorneys on the split lease situation in Texas with respect to oil (casinghead gas) and dry gas. Mr. Nelson, who represents some of the independents, outlined the arguments on both sides of the issue in depth. Later, as a result of the meeting it was decided that if Panhandle [PEPL] failed to follow through on its offer for the Hufo gas it would end up being marketed to someone else, and, if as Phillips contends, there is dry gas being eo-min-gled with the casinghead, then our dry wells under contract on that acreage [the plaintiffs’ wells] would be drained and we would lose the dry gas entirely. It was decided, therefore, to proceed with the Hufo contract, but to modify the definition of casinghead gas to state that it has to be in conformity with Texas Commission rules regarding gas oil ratios. Dixon was the senior PEPL official at that meeting, and presided over the decision to proceed; he was also the CEO of plaintiff PEEC. Like Dixon, Robert Allison was in a tough situation. He became concerned in the early 1980s that the independent “white oil” operators were perforating the dry gas zones in the Brown Dolomite. As a director of PEPL, he was concerned that the pipeline was buying stolen gas; as CEO of Anadarko, and as effective manager of PEEC’s wells under management contracts between PEEC and Anadarko, he was concerned that his gas was being stolen. Sometime in 1982, Allison began complaining. First, he called Richard Matheson, a PEPL vice president in charge of gas supply. Allison told Matheson that the pipeline should not buy casinghead gas from the “white oil” operators because they were stealing it from the legitimate gas owners. Matheson responded that PEPL did not intend to change its purchasing practices. Dissatisfied, Allison called Matheson’s superior, Dixon. Allison told Dixon that the pipeline was buying gas from Hufo and that Hufo was probably stealing the gas from Anadarko and Dixon’s own company PEEC; he suggested that the pipeline stop buying casinghead gas from the independents. Allison testified about Dixon’s response as follows: Q. And Mr. Dixon responded to you that the pipeline was going to continue doing this [buying casinghead gas from independents], didn’t he? A. Yes. Q. And he told you that if the pipeline didn’t buy the gas someone else would; isn’t that right? A. That was certainly his comment, well, you know, if Panhandle Eastern Pipe Line doesn’t buy it, some other pipeline would. So our rights, Anadarko’s rights would be hurt in either case. Understandably, Allison was still not satisfied. He turned to the top man in the Panhandle family of corporations, Richard O’Shields. Allison told O’Shields what that he believed that the pipeline was buying gas that was being converted from Anadar-ko and PEEC. He told O’Shields that the pipeline should stop buying casinghead gas from the “white oil” operators. Q. And Mr. O’Shields responded to you that he did not intend to change anything, didn’t he? A. Well, I can’t say he responded exactly that way. He listened to what I had to say, said he wasn’t, as I recall dimly, said he, you know, wasn’t aware of the details and that is the last I heard of it. In other words, there was really very little response, almost no response from him. It just died. Q. And he did not express any particular concern to you, did he, about this? A. No. Q. And as time went on you did not ever go back to the people at the pipeline again to raise this with them because you thought the subject was closed; isn’t that right? A. Yes. Q. And you believed the decision had • already been made; isn’t that right? A. Yes. Q. And the pipeline company was going to continue to buy this gas; correct? A. Yes. My assumption was that was the case. Allison instructed his staff to keep tabs on the activities of Hufo and True, whom he characterized as “crooks”; several years after PEPL’s need for gas had subsided and turned to a need to get rid of gas, Anadarko and PEEC brought this suit. 4- Confusion Below: Lessons in Law and Geology (a) Defining “Casinghead Gas” The parties agree that “casinghead gas” is, in the words of one of the plaintiff’s title documents, “gas produced with oil from an oil sand, whether obtained from the casing-head of the well or from separators or otherwise,” or in the words of the Texas statute, “any gas or vapor indigenous to an oil stratum and produced from the stratum with oil.” Tex.Nat.Res.Code § 86.002(10) (1978). Both sides agree that “sand” and “stratum” have the same meaning in this context. Each side, however, has a particular extension of the definition of “oil sand” or “oil stratum” that, if accurate, means that it wins the case based on undisputed facts. Also, each side has a fall-back argument based on disputed facts and the un-embellished definitions just quoted. The plaintiffs’ addition is based on various statutes, regulations, and title documents: they assert that an “oil sand” is a formation capable of producing oil in commercial quantities. In other words, the plaintiffs assert that even gas produced with small but non-trivial quantities of oil from the same interval does not qualify as casinghead gas because the value of the oil is too small to justify production from the well. According to the plaintiffs, only when a well produces oil in sufficient quantity for the oil production alone to make the well profitable can the operator then legally produce casinghead gas with the oil. On this basis, the plaintiffs boldly assert they have “title” to the entire Brown Dolomite and Moore County Lime formation because those formations are incapable of producing oil in commercial quantities. The defendants, on the other hand, assert that an “oil sand” or “oil stratum” is synonymous with an “oil reservoir.” They point out that the entire Panhandle Field is regulated by the Texas Railroad Commission as one reservoir, that all areas of the field (other than the topmost formation called the Red Cave) exhibit the same internal pressure and therefore are in communication with each other, and that the entire Panhandle Field is thus an associated res ervoir of oil and gas. According to the defendants, any production of gas from a properly classified oil well in the Panhandle Field is ipso facto the production of casing-head gas, regardless of whether the oil comes from one horizon and the gas from another. Finally, both sides argue about the actual geology of the Brown Dolomite and Moore County Lime formations, and about whether the defendants produced more than trace amounts of oil from the perforations they made in those predominantly gas-producing formations. The plaintiffs argue that the defendants in fact produced gas and only traces of oil from those formations; and, of course, the defendants assert that they produced both oil and gas in the proper ratios from those formations. Thus, there are three possible definitions of casinghead gas. Each side posits one definition, and then falls back to a common one. (1) The plaintiffs assert that an “oil sand” must produce oil in commercial quantities. All parties acknowledge that the casinghead gas from the defendants’ wells was far more valuable than the oil produced, and that the wells did not produce enough oil to make them worth drilling for oil alone. Therefore, under their preferred definition the plaintiffs win. (2) The defendants assert that the entire Panhandle Field is an associated reservoir of oil and gas, that it is an “oil sand” or “oil stratum” within the meaning of the relevant definitions. Under this definition any properly classified oil well produces only casinghead gas. Therefore, because their wells were properly classified — at least there was sufficient evidence for the jury to conclude that they were properly classified — the defendants win. (3) Both sides acknowledge (at least implicitly) that the proper definition of “oil sand” or “oil stratum” may be any horizontal interval in any formation that produces any oil. If that definition is accurate, the only remaining question is the strictly factual one of whether the defendants’ wells produced enough oil with the gas from the high perforations in the Brown Dolomite and the Moore County Lime. Each side asserts that, based on the geological facts they presented at trial, they win under this neutral definition. (b) Geological Evidence At trial, the parties presented sharply conflicting evidence on the geological facts. The plaintiffs’ evidence tended to show: The Brown Dolomite and Moore County Lime formations are gas formations. While there are occasional small pockets of oil in the gas formations, the oil and gas in the Panhandle Field conform to the law of gravity, with the heavier oil in the lower formations and the lighter gas in the upper formations. The oil-gas contact — the horizontal level where the heavier liquid hydrocarbons and lighter gaseous hydrocarbons meet — is roughly uniform throughout the region, and occurs near the bottom of the Moore County Lime or the top of the Granite Wash. The defendants must have known that they were stealing the plaintiffs’ gas because they tried to hide their illegal drilling and producing practices: while their well logs show that they penetrated their putative oil wells throughout the gas formations above the oil-gas contact, their public filings with the Railroad Commission omit reference to most of these high per-formations. The defendants’ evidence tended to show: There are small but producible quantities of crude oil throughout the Brown Dolomite and Moore County Lime formations trapped in cracks and fissures in the rock. There is no uniform gas-oil contact in the Panhandle Field; gas and oil exist in varying ratios throughout the vertical column. Wells drilled in nearby areas showed pro ducible quantities of oil throughout the Brown Dolomite and Moore County Lime. The plaintiffs’ gas wells — completed primarily in the Brown Dolomite and Moore County Lime but also in the Granite Wash — have long produced small quantities of crude oil (which the plaintiffs have failed to report to the Railroad Commission and to the royalty owners). The defendants’ well logs show markings both where the wells were actually perforated and where the operator defendants considered penetrating; although no one is now certain, the public filings with the Railroad Commission may be a more accurate description of where the wells are perforated than the markings on the well logs. The plaintiffs’ main expert recommended that a $1500 test be performed to determine at precisely what level certain wells were perforated, but the plaintiffs refused to pay for the test. In any case, the public filings clearly show perforations in the zones that the plaintiffs assert to be “gas” zones, so the defendants were not trying to hide anything. Finally, based on the plaintiffs’ own yearly Railroad Commission submissions of data on well pressure versus production, the steady pressure decline in the plaintiffs’ gas wells proves that there was no drainage from their wells throughout the period in which they claim the defendants were stealing huge quantities of their gas. B. The Trial, the Verdict, and the Appeal In the words of one defendant’s brief: “In the fall of 1985 PEEC and Anadarko sued everyone who had ever been remotely connected with the production and sale of oil and casinghead gas on [the disputed sections] ... with the notable exception of [their] sister corporation PEPL.” The plaintiffs’ main claim on the facts was for conversion of their gas, but the legal theories in the complaint ranged from trespass on personal property, common law fraud, civil conspiracy, and negligence to breach of the defendants’ leases and gas sales contracts, with the plaintiffs tacitly presenting themselves as third-party beneficiaries. Virtually every party in the case was a citizen or resident of Texas, and almost every claim was based on Texas law. Federal jurisdiction, however, was pegged on a claimed violation — apparently de rigueur in commercial litigation these days — of the federal RICO statute, with the remainder of the massive case dangling ponderously below, suspended by the doctrine of pendent jurisdiction. The defendants quickly brought in PEPL on third-party complaints, asserting among other things that PEPL was an “alter ego” or agent of the plaintiffs. They raised a host of affirmative defenses and brought counter-claims analogous to the plaintiffs’ offensive theories, alleging that the plaintiffs’ gas wells had illegally produced their casinghead gas. The defendants also cross-complained against each other, but wisely settled their differences (at least temporarily) in order to present a unified defense at trial. The parties agreed to divide the case into separate liability and damages phases, and the liability trial began in September 1987. The district court directed verdicts for the bank defendants and Billy Mack Gideon upon completion of the plaintiffs’ case-in-chief. After extensive testimony from the parties’ principals and from a parade of experts on both sides of the geological questions, the court submitted to the jury 42 pages of instructions and 53 special interrogatories, many of which required separate answers for each of the 29 defendants. The jury sent everyone packing. It rejected each of the plaintiffs’ claims and each of the defendants’ cross-claims. For good (if slightly inconsistent) measure, the jury found in favor of the defendants on all affirmative defenses — including entrustment, license, release, waiver, ratification, and estoppel — except the defense of laches. The plaintiffs bring this appeal primarily on the basis of insufficient evidence to support the verdict and errors in the jury instructions. The defendants together defend the jury verdict, and some bring cross-appeals that we discuss as necessary. C. The Unasked and Unanswered Question The most astonishing thing about this complex case is what has not been resolved. The jury was never asked the key questions: Did the defendants take the plaintiffs’ gas? If so, did the plaintiffs consent to the taking, thus absolving the defendants of conversion? If not, are the plaintiffs nevertheless bound by the consent of their authorized agents? If not, are they nevertheless bound (through some form of “corporate disregard” theory) by the consent of their corporate affiliate PEPL? As a matter of fact, the court did ask the jury these questions; but it asked them all at oncel Like the logic professor’s request for a yes-or-no answer to the question “have you quit beating your wife?,” the key interrogatory asked the jury a complex question: did the defendants convert the plaintiffs’ gas? Conversion was defined as taking without consent, and consent was defined to include consent by the plaintiffs or “their agents or alter egos, if any.” Thus, the jury’s finding of no conversion is profoundly ambiguous: did the jury find that the defendants did not take the plaintiffs’ gas? or did it find that the defendants took the plaintiffs’ gas but with plaintiffs’ consent? or did it find (in true lawyerly fashion) that if the defendants took the plaintiff’s gas, they did so with the plaintiffs’ consent? or did it find that although the plaintiffs did not consent, their “agents or alter egos” consented? Assuming that the taking issue was a question of fact for the jury under the neutral definition of “oil sand,” we would have gladly affirmed a jury finding that the defendants extracted only casinghead gas or, more precisely, that the plaintiffs had failed to prove that the defendants had extracted anything other than casinghead gas. The parties gave the stalwart jury a highly technical and almost unmanageable task: determine both the geological structure underlying the disputed tracts and the nature of the hydrocarbons produced from the defendants’ high perforations on the basis of elaborate, well-reasoned, convincing, and absolutely conflicting evidence and expert testimony. As bearers of the burden of persuasion, by definition the plain tiffs assumed the risk of non-persuasion. In other words, the jury reasonably could have thrown up its hands and determined that, whatever the truth of the matter, the plaintiffs had failed to establish that their version was true; therefore, the defendants were entitled to win. Unhappily, no such determination was made. More precisely, we cannot infer that it was made. Our duty is to consider the jury answers as a whole and to make sense of each in the context of the trial and the charge. Davis v. West Community Hospital, 755 F.2d 455, 465 (5th Cir.1985). If the jury had found no taking of the plaintiffs’ gas, that would have ended the case. It would not have been necessary to answer any other interrogatories except those on counterclaims. On the other hand, if the defendants took the plaintiffs’ gas but with their consent, then the affirmative defenses found by the jury are much more pertinent, and (as we shall see) they may be dispositive. Moreover, the plaintiffs recognized this part of the basic ambiguity in the conversion interrogatory and objected to it, and the district court assured them that it would rule on the taking question — what the parties have called the “title” issue — after the jury returned its verdict. Finally, the defendants do not contend on appeal that we should interpret the jury’s answer to the conversion issue as a finding that they did not take the plaintiffs’ gas. We therefore assume that in answer to the key interrogatory the jury determined only that if the defendants took the plaintiffs’ gas, the plaintiffs (or some person or entity whose decision was binding on them) consented to it. It remains to be seen whether the jury’s finding of consent and its benediction of the various affirmative defenses can support the take-nothing verdict judgment. D. Consent to the Taking The remaining issues are wound together in an analytic knot. Did the plaintiffs consent to the taking of their gas? Did their affiliate PEPL consent? Could PEPL consent for the plaintiffs, was it an agent of the plaintiffs or their “alter ego” such that its activities were binding on the plaintiffs? Are there sufficient reasons for disregarding the corporate distinctions between the plaintiffs and their parent and sister companies? Even if the jury finding of consent by the plaintiffs or its “agents or alter egos” is not legally supportable, are the plaintiffs nevertheless “estopped” from claiming conversion because of their own behavior or the behavior of their “agents or alter egos”? In this section of the opinion, we will begin to untangle the knot by determining whether the jury’s implicit finding of consent is supported in fact and law, and whether it alone can sustain the verdict. We hold that the finding of consent is supportable, and can sustain much of the verdict, but that the plaintiffs’ consent ended at the latest upon commencement of legal proceedings against the defendants. In the following section, we will determine whether the affirmative defenses can sustain the remainder of the take-nothing verdict. 1. Some Initial Problems with Consent (a) Remaining Ambiguities in the Interrogatory We have already commented on the ambiguities inherent in the jury’s finding of no conversion and held that we would construe it to be a finding of “taking with consent” rather than a finding of “no taking.” But a further ambiguity remains: did the jury find that the plaintiffs consented, or that their agents consented, or that their alter egos consented? The instruction would have permitted the jury to answer “no” if it found any or all of these. The question now is: what happens if we find only one or two but not all three of these possible findings legally sufficient? The parties have not raised or briefed this issue — the plaintiffs because they never admit even for the sake of argument that any of these findings is legally sufficient, the defendants because they never admit even for the sake of argument any is not sufficient. “Thus we have one more small failure of the adversary system, which relies so heavily on the parties to do the requisite research and analysis.” Mobil Chemical Co. v. Blount Brothers Corp., 809 F.2d 1175, 1183 n. 8 (5th Cir.1987). In contrast to their precise objection to the ambiguity on the taking issue, the plaintiffs did not object to this inherent ambiguity in the conversion charge. Instead they simply argued the “inclusion of a reference to agency or alter ego is not part of a proper definition of conversion” and that neither the agency nor the “alter ego” theories should be submitted to the jury. In subsequent objections to similar language in the instructions on the affirmative defenses, the plaintiffs did point out the problem of discerning whether the jury would find that the plaintiffs consented or that PEPL consented, and did ask generally for a separate instruction on agency and alter ego, but there was no mention of the need to distinguish between agency and alter ego. A party must ordinarily object precisely to the wording of jury instructions and interrogatories, and it is doubtful under these strict standards whether the plaintiffs’ objections were adequate. On the other hand, when a case is submitted to the jury on a general verdict, the failure of evidence or a legal mistake under one theory of the case generally requires reversal for a new trial because the reviewing court cannot determine whether the jury based its verdict on a sound or an unsound theory. See, e.g., Nowell ex rel. Nowell v. Universal Electric Co., 792 F.2d 1310, 1312 (5th Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 578, 93 L.Ed.2d 581 (1986); Smith v. Southern Airways, Inc., 556 F.2d 1347 (5th Cir.1977). Our Court has recognized that even a single question in a special verdict involving alternative theories has the same troublesome characteristic: the reviewing court cannot tell which theory formed the basis of the jury’s categorical answer. See Dougherty v. Continental Oil Co., 579 F.2d 954, 960 n. 2 (5th Cir.1978), vacated, 591 F.2d 1206 (5th Cir.1979). In consequence, we have reversed and remanded for a new trial when an interrogatory contained a complex question and the jury’s categorical answer could have been to either or both of the sub-questions. See Prudential Insurance Co. v. Morrow, 339 F.2d 411, 412 (5th Cir.1964). It seems likely that in the case of a potentially ambiguous general verdict all the complaining party must do to protect his rights is to object to the charge and the submission vel non of the questionable theory or theories; probably he need not object to the ambiguity inherent in its submission, as the ambiguity arises from the nature of general verdicts and no party has a right to a particular kind of verdict, general or special. Thus, if we analogize the submission of the conversion interrogatory to the submission of a general verdict on several alternative theories, we might conclude that the plaintiffs’ objection to the submission of each theory is enough to preserve for appeal the argument that the case must be retried because one theory is unsound and it is impossible to tell which theory was the basis for the jury’s answer. If, however, we apply the normal strict rules requiring objection to the form of the charge and interrogatories, we might conclude that the plaintiffs’ objections were inadequate to preserve the error and that the verdict can be sustained based on any one of the possible alternative grounds. We are thus confronted by a close and difficult question. Happily, we can leave its resolution to another day. Even on appeal the plaintiffs fail to argue that the cause should be reversed and remanded for retrial if we find any one of the alternate theories of consent legally insupportable. They maintain the all-or-nothing posture that none of the possible findings of consent was legally supportable; they do not argue in the alternative that if one is unsound the case must be remanded because we cannot determine if the jury relied on the unsound theory. We need not consider issues or arguments not raised in the appellant’s brief. See In re Texas Mortgage Service Corporation, 761 F.2d 1068, 1073-74 (5th Cir.1985). We conclude that we may affirm the jury’s finding of consent if any one of the underlying theories is legally and factually sufficient. (b) Consent: Element of Conversion or Affirmative Defense? In its definition of conversion, the district court instructed the jury that “the complaining party must prove that each offending party took the gas owned by the complaining parties without their assent.” The plaintiffs argue that the court erred by requiring that they prove lack of consent, rather than requiring the defendants to prove consent as an affirmative defense. The plaintiffs contend that consent is a species of the genus “assumption of the risk” and that under Rule 8(c) and Texas authority they were not required to show iack of consent. There may be some confusion in Texas law about which party must prove or disprove the existence of consent. After reviewing the cases cited by the defendants, however, we conclude that although the matter is not without doubt, the district court properly required the plaintiffs to show lack of consent. Conversion is a tort against the possession of property. Taking another’s property is not conversion; wrongful taking is. Older Texas authority and some modern cases speak of the owner’s lack of consent as the sine qua non of wrongful taking: When the word “conversion” is used to signify a tort, it may be defined as any distinct act of dominion wrongfully asserted over another’s personal property in denial of the owner’s rights or inconsistent with them. The essence of conversion is not the actual taking of the owner’s property or carrying it away; it is wrongfully depriving the owner of its use and possession. The taking must be wrongful, for without the element of wrong no tort can be committed and conversion does not occur. To be wrongful, the conversion [sic ] must be wholly without the owner’s sanction or assent, either expressly or impliedly. Staats v. Miller, 240 S.W.2d 342, 344 (Tex.Civ.App.—Amarillo), rev’d on other grounds, 150 Tex. 581, 243 S.W.2d 686 (1951). Thus, the Texas courts have held that for venue purposes the tort of conversion does not occur where the taking occurred if the taking was with consent; while these are venue cases, they broadly and categorically define the tort of conversion in terms of the lack of consent. See, e.g., Conlee Seed Co. v. Brandvik, 526 S.W.2d 795, 798 (Tex.Civ.App.—Amarillo 1975, no writ) (“there can be no conversion by the taking of property where the owner has expressly or impliedly consented to the taking”); American Mortgage Corp. v. Wyman, 41 S.W.2d 270, 272 (Tex.Civ.App.—Austin 1931, no writ) (“It is indispensable to the maintenance of the cause of action for conversion for the complaining party to prove that the original taking of the property was without his consent.”). Because only wrongful taking is conversion, and because the lack of consent establishes the wrongfulness of the taking, lack of consent is an element of the tort of conversion which the plaintiff must plead and prove.- Affirmative defenses usually have the structure of “confession and avoidance,” that is to say, they admit the initial sufficiency and completeness of the claim while asserting other grounds for avoiding the normal consequences of that concession. But if the defendant to a conversion claim was required to prove that the plaintiff consented, rather than requiring the defendant to show that although a conversion occurred he has some legal excuse for it, that would be requiring him to prove that no conversion occurred at all. This analysis is consonant with traditional common law treatment of the problem. Therefore, we conclude that the district court did not err in requiring the plaintiffs to show lack of consent. 2. Who Consented? At trial, the defendants presented three factual and legal bases for the finding that the plaintiffs consented to the taking of their gas. First, the defendants argued that the plaintiffs and their affiliate PEPL were “alter egos” and that the acts of PEPL were therefore binding on the plaintiffs. Second, the defendants contended that PEPL was an agent of the plaintiffs and that its acts were therefore binding on the plaintiffs as principals. Third, the defendants asserted that through their corporate management the plaintiffs themselves consented to the taking. Technically, of course, the last contention is also an agency argument, but it is quite different from the second. Presumably because of PEPL’s extensive knowledge of and participation in much of the activity of which the plaintiffs complain, most of the arguments on appeal focus on the first two theories, particularly the issue of corporate disregard and to a lesser extent the issue of the pipeline as an agent of the plaintiffs. It seems to us, however, that the issue is most easily resolved by focusing on the evidence of the plaintiffs’ own consent to the taking of the gas through their corporate management. Because of the nature of the consent issue, the other theories present difficulties. 3. Consent by the Plaintiffs The evidence recited above in section A.3 speaks for itself. It supports the conclusion that Dixon, head of plaintiff PEEC, decided to sacrifice the plaintiffs’ gas rights in order to advance the interests of their much larger and more profitable sibling PEPL; that Allison, head of plain,tiff Anadarko, objected to this strategy and complained to O’Shields; and that O’Shields, head of all the Panhandle companies, sided with Dixon and the interests of PEPL, making the final decision to allow PEPL to buy gas that all suspected was in part stolen from Anadarko and PEEC. Dixon, Allison, and O’Shields were the CEOs of PEEC, its parent Anadarko, and Anadarko’s parent Panhandle Eastern Corporation, respectively; and O’Shields was Chairman of the Board of most Panhandle companies. These men had the power and the duty to maximize profits for the entire family of corporations. Just as they once transferred PEPL wells to PEEC to increase the price that the family could receive for the gas, they had the power to risk gas losses by the plaintiffs in order to help PEPL in its time of gas shortage. Whether, as a matter of their duties of care and loyalty to the plaintiffs, they should have so decided is a different question, which we discuss briefly below. The point here is that they had the power and authority to act for the plaintiffs, even to their detriment; and they did so. To find that the plaintiffs consented to the taking, the jury did not need to find that the plaintiffs’ management was happy to give away the gas in return for an increased gas supply to the pipeline; it did not need to find that management was totally satisfied with this arrangement; it did not need to find that CEO Allison did more than acquiesce in the decision by Dixon and O’Shields. The word “consent” is used interchangeably in Texas tort jurisprudence with the word “assent”; both words connote acquiescence in a decision or a state of affairs. The jury needed only to conclude that the plaintiffs’ management accepted the loss of gas in order to further other corporate goals. There was evidence to support that conclusion, and we affirm it. 4. The Plaintiffs’ Arguments Against the Finding of Consent (a) The Part-Time Agent and the Adverse Agent The plaintiffs make two arguments against the jury’s finding that they consented. The first is that their corporate management’s knowledge of and acquiescence in the defendants’ taking should not be imputed to them because, in the words of their brief: even when the agency relationship is established, the acts of an agent will not bind the principal absent proof the agent was acting within the course and scope of its authority and in the best interest of the principal. * 5ji * * % It is equally well established in Texas, knowledge of an officer or director of one corporation that is acquired while acting as an officer or director of another corporation is not imputable to the first corporation. Furthermore, where an officer or director is adversely interested in a transaction, his or her knowledge is not imputable to the corporation at all, even though the officer is, at the time, the managing agent of the corporation. (Emphasis in original; citations omitted.) This breaks down into two contentions. (1) The knowledge of Dixon and O’Shields and others about the defendants’ activities cannot be imputed to the plaintiffs because these officers were working for PEPL or for Panhandle Eastern Corporation at the time they acquired this information. (2) Because their management’s decision to acquiesce was clearly adverse to the plaintiffs’ interest and because it harmed them, the knowledge and acts of their corporate officers cannot be imputed to the plaintiffs. One hundred years ago Texas law concerning the knowledge of an agent acquired outside the scope of his agency was as narrow as the plaintiffs now contend. The law has since changed, however, as the exception has swallowed the rule. The exception began chewing on the rule in cases like Wellington Oil Co. v. Maffi, 136 Tex. 201, 150 S.W.2d 60 (1941). In Maffi, the Supreme Court’s analysis begins by noting the expansive rule of the Restatement of Agency (First) and various legal encyclopedias which stated that the principal is always bound by the actual knowledge of his agent no matter how acquired. The Maffi opinions continues: This court has not adopted so broad a statement of the rule. The rule has been announced by this court that a principal, whether a corporation or a natural person, is not affected by notice which comes to the agent or officer unless such knowledge came to him while he was transacting the business of his principal. Texas Loan Agency v. Taylor, 88 Tex. 47, 49, 29 S.W. 1057 [(1895)]; Teagarden v. Godley Lumber Co., 105 Tex. 616, 154 S.W. 973 [ (1913) ]. While this court has announced that as the general rule, it has in subsequent decisions recognized an exception thereto which seems also to be recognized in practically all jurisdictions. That exception is that where the agent is the actor (sometimes designated sole actor), representing his principal in the transaction to which his knowledge relates, the principal will not be permitted to avail himself of the benefits of his agent’s services without being charged with his knowledge. Maffi, 136 Tex. at 207, 150 S.W.2d at 63 (citations omitted). The Maffi “exception” obviously makes an enormous inroad into the “general rule.” See United States Fidelity & Guaranty Co. v. San Diego Bank, 155 S.W.2d 411, 413 (Tex.Civ.App.—El Paso 1941, writ ref’d w.o.m.) (absent allegation of fraud by agent, notice to person acting for both plaintiff and defendant held to have been notice to both plaintiff and defendant). By the time of Fireman’s Fund Indemnity Co. v. Boyle General Tire Co., 392 S.W.2d 352, 356 (Tex.1965), the Texas Supreme Court still gave lip service to the ancient rule while effectively ignoring it. In Fireman’s Fund the Court held an insurance company bound by knowledge its insurance agent had acquired while selling policies for another company. It mentioned Maffi and recited the old rule, but cited as an unqualified “exception” to the old rule the general rule of the Restatement that Maffi had tried to distinguish. So by the time of Fireman's Fund the transformation was complete: Texas now follows the Restatement rule which imputes all knowledge of an agent (exeépt that acquired in confidence) to his current principal. The plaintiffs also contend that their corporate management’s consent was against their interests and thus cannot be imputed to them. This argument suffers from two shortcomings. First, the cases cited in support of this argument relate to self-dealing by corporate officers. If a corporate officer is raiding the corporate treasury, the courts not surprisingly refuse to hold that the corporation acquiesced in the theft because the thief knew of his own misdeeds! In this case, the plaintiffs’ officers and directors may well have harmed the plaintiffs (viewing the plaintiffs as purely abstract entities) but they did so to help the plaintiffs’ sole owner Panhandle Eastern Corporation and its related entities. We would hesitate to reify the corporation fiction to the point where a manager’s decision to help the sole shareholder at the expense of the corporation would violate some surrealistic duty of care or loyalty. The second error in the plaintiffs’ argument is even more fundamental: it is a category mistake. The plaintiffs’ analogy to self-dealing goes to the rights of the corporation versus its management. It does not affect the complete authority of management to bind the corporation in its dealing with others. In other words, if the plaintiffs’ managers actually consented to the taking of the plaintiffs’ gas-, then the plaintiffs actually consented because their management had full authority to act for them; and in fact they could act in no other way. Even assuming that the managers, while acting in the scope of their authority, did something that was so harmful to the plaintiffs as to violate the management’s duty of care or loyalty, that violation only gives rise to liability to the plaintiffs; it does not absolve the plaintiffs of the responsibility to third parties for their management’s acts. In this ease, the jury found that the plaintiffs’ management consented to the taking, and that consent is real and binding on the plaintiffs even if the consent was so harmful to the plaintiffs’ interests that they could now sue their managers for deciding to consent. (b) Lack of Full Knowledge The plaintiffs’ second argument is that, even assuming their management knew of the possibility of the defendants stealing gas and did nothing, that failure to act is not consent because, again in their own words (and emphasis), consent “requires full knowledge and appreciation of the risk being voluntarily assumed.” The plaintiffs cite for this proposition Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961). Because the plaintiffs’ managers were not certain that the defendants were stealing their gas, they now argue that they could not have consented to the taking. In Brown v. Lundell, the oil lessor had agreed to let the oil operator/lessee dispose of salt water and other drilling wastes in an earthen pit on the lessor’s property. The salt water percolated down into the fresh water table, diminishing the value of the lessor’s land. On suit for recovery of the lost value, the defendant oil operator argued that the lessor’s consent to disposal of the salt water and waste in the earthen pit foreclosed her recovery under the principle of volenti non fit injuria. The court disagreed, noting first that while there was no doubt of consent to the use of the waste pit, what the defendant had “failed to allege and prove is that the lessor had reason to know or to be aware that the salt water would probably percolate downward and pollute the fresh water supply.” [N]o further issue was requested as to whether she [the lessor] was aware of the probable pollution. The doctrine of “volenti non fit injuria” presupposes a knowledge of the facts so that the actor has a choice. In this case it cannot be said that the lessor assumed a known and appreciated risk. Brown, 162 Tex. at 93, 344 S.W.2d at 869, 870 (citations omitted; emphasis added). The language in Brown demonstrates what common sense would suggest in its absence: consent to a tort can arise even without absolute certainty as the occurrence of the tort. In our case, although the plaintiffs were not certain they strongly suspected the defendants of stealing their gas. They acquiesced in the taking to benefit their owner Panhandle Eastern Corporation and their affiliate PEPL. The plaintiffs’ suspicions were strong enough to make the risk “known and appreciated,” and thus to support the jury’s finding that they consented. 5. When Did the Plaintiffs’ Consent End? The jury was entitled to find that the plaintiffs’ management, fully aware that the defendants might be stealing gas, acquiesced in the defendants’ actions to further the purposes of the Panhandle Eastern family of corporations. Consent is a unilateral act, however; and it can be withdrawn. The defendants’ response to the problem is not a model of clarity, but to the extent that they contend that the plaintiffs could not withdraw their unilateral consent, the argument does not merit discussion. To the extent that the argument has merit, we address it below: if the plaintiffs could not withdraw their “consent” (or apparent consent), it could only have been on grounds of the affirmative defenses of es-toppel, ratification, or waiver. The question remains: when did the plaintiffs stop assenting to the takings? As we have interpreted the jury’s finding of no conversion, the jury found that the consent never ceased. This conclusion is flatly contrary to the evidence and we cannot uphold it on appeal: the plaintiffs’ consent obviously ended at least at the time that this lawsuit was filed! It probably ended much sooner, but that is not the question we must answer. Our answer depends on two considerations. First, as we concluded above, the plaintiffs had the burden of proving their lack of consent. Second, our power of review is limited to overturning only those factual conclusions which no reasonable juror could reach. Because of this, we must determine, not when the plaintiffs’ consent actually ceased, but rather the time at which the jury’s conclusion of continuing consent became completely unreasonable under the evidence. It seems to us that a reasonable juror could conclude that lack of consent was not proved until the plaintiffs actually filed this lawsuit. There was powerful evidence of consent by the plaintiffs during the time of the PEPL-Hufo/True gas supply contract. There was also evidence that Dixon knew he was on shaky ground in cancelling the burdensome multi-million dollar 15-year Hufo contract, and that he feared a lawsuit by True; the jury could have inferred that concern about this big-ticket counter-claim was a reason why Dixon and O’Shields and others decided not to do anything about the mounting evidence that True was stealing the plaintiffs’ gas. There is no dispute that employees of plaintiffs began to develop evidence against the defendants and began to assert positions contrary to those of the “white oil” operators in other legal proceedings early on; but a reasonable juror could conclude that none of this proved that the plaintiffs’ earlier consent to the takings had ended. The jury could have inferred that while the plaintiffs’ management instructed its employees to begin preparing the case against the casinghead gas operators in anticipation of a future lawsuit, it was reluctant to shift the Panhandle companies from being an eager purchaser of the casinghead gas to an eager litigant claiming ownership of it. A reasonable juror could have determined that once the defendants had clearly established the plaintiffs’ consent to the takings during the time of the PEPL contract, the plaintiffs then had to show by some positive evidence that their consent ceased at a particular time. The plaintiffs’ decisions to intervene in the Phillips and Stowers proceedings and the actions by their employees to gather evidence on the defendants’ activities do not necessarily establish a corporate change-of-heart — or so a reasonable juror could have concluded. Therefore, the jury’s finding of no conversion is legally supportable up to the filing of this case. The defendants produced some gas between the time this suit was filed and the time the wells were shut in; thus, the defendants’ liability for conversion remains in question. We turn now to the affirmative defenses raised by the defendants and accepted by the jury. E. General Affirmative Defenses: Estop-pel, Ratification, and Waiver The court instructed the jury on four affirmative defenses raised by all defendants: waiver, ratification, estoppel, and laches. The jury found for the plaintiffs on the issue of laches, but found for all defendants on the issues of estoppel, ratification, and waiver. The plaintiffs assert that these findings cannot stand under the law and the facts of this case. The defendants’ affirmative defenses turn on the jury’s implicit finding that PEPL was the agent of the plaintiffs or that the corporate distinction between the plaintiffs and their affiliate should be disregarded. The idea is that the plaintiffs are estopped from claiming their rights, or have ratified the behavior of the defendants, or have waived the right to complain of the defendants’ behavior by virtue of the acts of their affiliate PEPL in purchasing some of the allegedly converted gas. We have already discussed some problems in the jury’s corporate disregard and agency findings in relation to the issue of consent; but here we must undertake a more complete analysis of those issues. In this section we first review the law of corporate disregard under Texas law; we conclude that under one version of corporate disregard the jury was entitled to attribute the behavior of PEPL to the plaintiffs. Taking up the substance of the equitable affirmative defenses, we determine that while they are valid to a limited extent they cannot support the take-nothing judgment past the time when plaintiffs’ consent to the taking ceased. 1. The Problem of Corporate Disregard (a) The Theories of Corporate Disregard The law of “corporate disregard” was summarized and reshaped by the Texas Supreme Court not long ago in Castleberry v. Branscum, 721 S.W.2d 270 (Tex.1986). The Court began its analysis with a general remark, then listed specific grounds: We disregard the corporate fiction, even though formalities have been observed and corporate and individual property have been kept separately[ ] when the corporate form has been used as part of a basically unfair device to achieve an inequitable result. Specifically, we disregard the corporate fiction: (1) when the fiction is used as a means of perpetrating fraud; (2) where a corporation is organized and operated as a mere tool or business conduit of another corporation; (3) where the corporate fiction is resorted to as a means of evading an existing legal obligation; (4) where the corporate fiction is employed to achieve or perpetrate monopoly; (5) where the corporate fiction is used to circumvent a statute; and (6) where the corporate fiction is relied upon as a protection of crime or to justify wrong. Id. at 271-72 (citation and footnotes omitted). Immediately following this passage, the Court inserted a footnote containing a seventh ground, which we list here for completeness: (7) where the corporation is inadequately capitalized. The Castleberry opinion is puzzling. It begins with a most general principle— “when the corporate form has been used as part of a basically unfair device to achieve an inequitable result” — then follows with a laundry list of seven relatively detailed rationales that intertwine and overlap, yet point in various directions. We think we can fairly discern, however, three distinct strands of corporate disregard under Texas law. As we shall see, each has a different application in this case. One strand we may call “alter ego” proper, “(2) where a corporation is organized and operated as a mere tool or business conduit of another corporation.” The phrase “alter ego” has often been (and still is) used as a generic term for corporate disregard or “veil-piercing,” but the Castle-berry opinion makes clear that “alter ego” is a particular kind of rationale for corporate disregard. See Riquelme Valdes v. Leisure Resource Group, Inc., 810 F.2d 1345, 1354 (5th Cir.1987). The focus of alter ego proper is on the legal adequacy of the corporation’s existence, and the relationship between the corporation and its controlling corporation or individual. Many wholly-owned subsidiary and closely-held corporations are not factually distinct from their owners; many are in fact controlled and operated in close concert with the interests of the owners, and do not have a distinct factual existence — separate employees, separate offices, separate properties, etc. That is perfectly natural and proper. See, e.g., Edwards Co. v. Monogram Industries, 730 F.2d 977 (5th Cir.1984) (en banc) (“shell” subsidiary was formally distinct and creditor was not misled; corporate disregard under Texas law was therefore improper). The problem arises when such a corporation is not treated as legally distinct, when, in other words, the owners neglect to maintain the formal existence of the corporation as required by law. “Alter ego’s rationale is: ‘if the shareholders themselves disregard the separation of the corporate enterprise, the law will also disregard it so far as necessary to protect individual and corporate creditors.’ ” Castleberry, 721 S.W.2d at 272 (quoting Ballantine, Corporations § 123 at 294 (1946)). Castleberry states the rationale for alter ego purely in terms of reciprocal fairness, but clearly the rule is also designed to give incentives to those using the corporate form to obey the state’s laws fully by maintaining corporate formalities, and thus the legal separateness, of the corporation. Persons who fail to maintain full corporate formalities cannot expect the state to grant them the limited liability that flows from the corporate form. The person invoking alter ego proper against a corporation, whether claiming in contract or tort, thus may be the recipient of a windfall. In theory, even if the corporation was adequately capitalized and even if the claimant did not rely on the financial backing of the corporation’s owners, the claimant is still entitled to recover as a sort of private attorney general. Of course, the different species of corporate disregard seldom occur in pure form, so alter ego usually will be accompanied by assertions of unfairness to the claimant. But our present purpose is to isolate analytically the strands of the doctrine, and there is nothing in the alter ego strand to suggest that anything more is required than the failure of the owners to maintain the corporation as a distinct legal entity. The focus of alter ego proper is on the relation between the corporation and its owners and not on the relation between the corporation and the claimant. The second strand of corporate disregard relates to the use the corporate form as a technique for avoiding legal limitations on natural persons or corporations — we will call this the “illegal purpose” strand of corporate disregard. Looking at the Castleberry list, “(5) where the corporate fiction is used to circumvent a statute” and “(4) where the corporate fiction is employed to achieve or perpetrate monopoly” are directly within this strand, while others overlap somewhat or fit indirectly. “(6) where the corporate fiction is relied upon as a protection of crime or to justify wrong”; “(3) where the corporate fiction is resorted to as a means of evading an existing legal obligation.” Here again, as with alter ego proper, the focus is on the relation between the corporation, its owners, and the laws of the state rather than on the relation between the claimant and the corporation; and, again, recovery by the claimant may be a windfall because the claim may be unrelated to the illegal purpose. Still, it makes sense to refuse to allow owners to limit liability with the corporate form — even from unrelated civil claims — when the corporation is an instrument of illegality. Illegal purpose disregard differs from alter ego, however, because it can be used even when all corporate formalities have been kept. There are few cases that illustrate this strand of corporate disregard in any pure form; in practice, the illegal purpose rationale is usually an alternative basis in an alter ego or “sham to perpetrate fraud” case. The third strand traditionally goes under the name “sham to perpetrate fraud,” or as Castleberry puts it, “(1) when the fiction is used as a means of perpetrating fraud”; elements of this strand can be found in “(3) where the corporate fiction is resorted to as a means of evading an existing legal obligation” and “(6) where the corporate fiction is relied upon as a protection of crime or to justify wrong.” For tort claimants, this strand includes the concept of inadequate capitalization as a basis for corporate disregard. Here for the first time the focus is on some inequitable result for the claimant because of something about the corporate form. But what is that “something” that allows disregard? Cast-leberry is emphatic that this category allows corporate disregard in a much broader range of cases than cases of fraud strictly speaking. The opinion clings at times to the term “constructive” fraud, but its reasoning is much broader: The basis used here to disregard the corporate fiction, a sham to perpetrate a fraud, is separate from alter ego. It is sometimes confused with intentional fraud; however, “[njeither fraud nor an intent to defraud need be shown as a prerequisite to disregarding the corporate entity; it is sufficient if recognizing the separate corporate existence would bring about an inequitable result.” Castleberry, 721 S.W.2d at 272-73 (citations omitted). The Court goes on to emphasize that the standard for corporate disregard is whether honoring corporate separateness would result in “inequity” or “injustice,” that the purpose “ ‘is to prevent use of the corporate entity as a cloak for fraud or illegality or to work an injustice, and that purpose should not be thwarted by adherence to any particular theory of liability.’ ” Id. at 273. Castleberry specifically holds that the question of injustice or inequity is a question of fact for the jury. The only limitation on this broad strand of corporate disregard is that the focus is on injustice or unfairness to the claimant caused by the corporation and its owners. The unfairness must be something greater than the mere failure to recover a full measure of damages; for example, the running of the statute of limitations as to a tort victim who simply sued the wrong related entity is not enough. See Lucas v. Texas Industries, Inc., 696 S.W.2d 372 (Tex.1984). In contract cases (or in any case based on deliberate acts), the inequity frequently comes from reasonable reliance on the financial backing of the owners. Without reliance, the contract claimant cannot avoid the risk of insolvency that it originally accepted as part of the bargain. See, e.g., Bell Oil & Gas Co. v. Allied Chemical Corp., 431 S.W.2d 336 (Tex.1968); Edwards Co. v. Monogram Industries, 730 F.2d 977 (5th Cir.1984) (en banc). (b) Corporate Disregard in this Case The defendants raised and the court submitted to the jury all three forms of corporate disregard. The sum total of jury instruction on the difficult question of corporate disregard was the following paragraph: Whenever these instructions or any issues submitted to you refer to “alter ego” you shall consider the following instructions. One corporation or company is the alter ego of another if it is organized and operated as a mere tool or business conduit of another corporation or company. A corporation or company is also the alter ego of another if it is necessary to disregard the separate corporate entity in order to prevent the accomplishment of a wrong. A company or corporation is also the alter ego of another if the corporation fiction [sic ] is used to circumvent a statute. The instructions on everything from conversion to negligent misrepresentation thereafter referred to “the plaintiffs, their agents, or alter egos, if any,” implicitly referring the jury back to this instruction. Turning first to the “mere tool or business conduit” instruction, this was an attempt to instruct the jury on alter ego proper. The focus of alter ego is on the relationship between the corporations whose identities are sought to be collapsed. At all times relevant to this dispute, Anadarko, PEEC, and PEPL were run as sepa rate and legally distinct corporations. All corporate formalities were maintained. The mere fact of interlocking directorates and officers cannot make corporations into alter egos; nor does the normal exercise of the rights and powers incident to ownership raise the alter ego question of whether the corporation was a “mere tool or business conduit” of its owners. There was simply no evidence in this case of any improprieties in the manner in which the plaintiffs and their parent or affiliate were operated, and the alter ego issue should not have been submitted to the jury. As to the instruction that the corporate fiction could be disregarded if “used to circumvent a statute,” the defendants made the following argument to the jury and again (as quoted from their brief) on appeal: Plaintiffs’ wells were depleted and they could only have fulfilled PEPL’s great need for more gas by drilling additional wells. RRC [Railroad Commission] rules and regulations prohibited plaintiffs, as gas rights owners, from drilling more than one well per section, however. By contracting with Hufo, encouraging Hufo to speed up its drilling and production, and buying the gas Hufo and later True produced, PEPL and plaintiffs avoided these restrictions. This argument does not withstand a moment’s scrutiny. From the time this lawsuit was filed to the filing of the last brief on appeal, the defendants have maintained with absolute consistency that they did nothing wrong, that they did not violate Texas statutes, that they did not violate Railroad Commission rules and regulations, and that they did not take gas that belonged to the plaintiffs. But if that is true, then the plaintiffs themselves could have acquired the oil rights and drilled the same oil wells using the same kind of production practices — and that would have been absolutely legal and indeed irreproachable. Yet according to the defendants, the plaintiffs and PEPL were somehow circumventing Texas rules and regulations by simply purchasing casinghead gas from the defendants’ legal oil wells. This will not wash. If the defendants were willing to concede for the sake of argument that their wells were illegal wells, then the plaintiffs and PEPL could be argued to have encouraged the illegal production of their own dry gas to circumvent the regulatory restrictions on drainage. The defendants were entitled to plead and prove in the alternative, but they simply have not done so. They have never conceded for any purpose that their wells violated Texas law. That refutes their “circumvention” argument. Finally, the court instructed the jury to disregard the separate existence of the plaintiffs and PEPL “if it is necessary ... in order to prevent the accomplishment of a wrong.” This instruction reflects the mis-named “sham to perpetrate a fraud” strand of Texas corporate disregard law. Castleberry makes clear that under Texas law the question of unfairness or injustice to the claimant caused by the use of separate corporate entities is for the jury. In a federal diversity court, the question of sufficiency of the evidence is governed by federal law, so the question we now face is whether a reasonable juror could have concluded that allowing recovery by the plaintiffs for gas allegedly stolen by the defendants and then sold to the plaintiffs’ affiliate PEPL would be allowing the Panhandle family of corporations to use the corporate form “as part of a basically unfair device to achieve an inequitable result.” Castleberry, 721 S.W.2d at 271. The “sham to perpetrate a fraud” basis for corporate disregard was properly submitted to the jury. The plaintiffs do not dispute that if they had purchased gas from the defendants, they would be es-topped from suing the defendants for converting that gas. The basis for estoppel in such a case, of course, is the inequity of allowing a claim by a person who has benefited from the very transaction that he now seeks to assert as a cause of harm. In our case, rather than treating the rights and property of each subsidiary as distinct and inviolable, the management of the various Panhandle entities decided to allocate unequally among the various corporations the costs and benefits of acquiring the casing-head gas; costs were shifted to the plaintiffs and benefits shifted to PEPL. The plaintiffs now propound their corporate separateness and separate rights as absolute. Because of this profound asymmetry in the behavior of the managers of the plaintiffs and their affiliates, a reasonable juror could conclude that now “ ‘recognizing the separate corporate existence would bring about an inequitable result.’ ” Id. at 273. (c) The Adequacy of the Instructions and Objections The plaintiffs argue that no corporate disregard issue should have been submitted to the jury at all. They assert that corporate disregard theory can be used only “offensively,” that under Texas law only creditors or victims seeking to satisfy unpaid debts or losses too large for the corporate defendant to pay can avail themselves of the doctrine of corporate disregard in order to find a deeper pocket. In this case, of course, the defendants use the doctrine “defensively”; they seek to defend against the plaintiffs’ claims by pointing to the behavior of their affiliate PEPL. We do not find the limitation urged by the plaintiffs anywhere stated in Texas law, however; and given the Castleberry Court’s encompassing definition of “sham to perpetrate a fraud,” we will not interpose such a limitation ourselves. Furthermore, the defendants point to cases where the use of corporate disregard can properly be characterized as “defensive.” See, e.g., First Nat’l Bank in Canyon v. Gamble, 134 Tex. 112, 116-22, 132 S.W.2d 100, 102-05 (1939) (suit on nominally expired note secured by deed of trust; held: debtor’s affiliate with subsequent deed of trust on same property would normally have priority over facially expired lien, but, because of actual notice to affiliate and substantial unfairness to first lienholder, corporate forms would be disregarded to disallow affiliate’s assertion of a superior lien). We confront here the same problem that we faced above with consent: The plaintiffs objected to each of the three theories of corporate disregard submitted to the jury (although the defendants correctly point out that their objections were vague and conclusory). Once again, we have determined that not all of the theories are supported by the evidence. Because we cannot tell whether the jury relied on the sound or the unsound theories, we are presented with the dilemma of whether we should affirm a verdict that might have been based on error. But, once again, we can escape between the horns of the dilemma because the plaintiffs have adopted an all-or-nothing strategy on appeal; they have not argued that the verdict must be reversed and remanded for a new trial if we find fault with one or more of the bases of corporate disregard. See In re Texas Mortgage Services Corporation, 761 F.2d at 1073-74. We have serious doubts whether the court’s bare one-sentence instruction on “sham to perpetrate a fraud” — “a corporation or company is also the alter ego of another if it is necessary to disregard the separate corporate entity in order to prevent the accomplishment of a wrong” — adequately apprised the jury of its task under Texas law. On the other hand, the plaintiffs’ objections to this instruction were weak if not inadequate. We can escape this dilemma also: Our resolution of the corporate disregard issue renders it superfluous because we find that it does not protect the defendants from liability beyond the time when the jury could find that the plaintiffs consented. 2. Sham to Perpetrate a Fraud (a) Estoppel There are many forms of “estoppel” in American law — estoppel based on an unbargained-for promise (promissory estoppel), estoppel based on representa tions of fact (equitable estoppel or estoppel in pais), and in some jurisdictions even es-toppel based purely on a course of conduct; but through all forms of estoppel runs the a common thread: the element of reliance. “The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change in position is sternly forbidden.” Dickerson v. Colgrove, 100 U.S. 578, 580, 25 L.Ed. 618 (1880). Texas does not except itself from the general view that reliance is an element of estoppel, and in this respect the jury instructions correctly restated Texas law. In this case, there are simply no facts to support the view that the defendants relied on promises, representations, or behavior of the plaintiffs or of PEPL when they decided to do anything relevant to this lawsuit. The defendants were independent and experienced businesses, doing their best to make money by drilling for, producing, selling, and buying gas. This they would have done with or without PEPL’s purchases of gas from the operator defendants. The defendants have always asserted and continue to assert that their wells are legal oil and casinghead gas wells, that their actions in drilling, completing, and producing from these wells are totally legal; they took all these actions based on their assessment of the law and of the geological facts and have never harbored doubts about the legality of their acts that were somehow assuaged by the plaintiffs or PEPL. The defendants have not pointed to even a stitch of evidence that they would not have acted exactly as they have acted if the plaintiffs or PEPL had promised, represented, or behaved differently in any respect. (b) Ratification and Waiver To their credit, the defendants do not argue — at least not directly — that they relied on anything done by the plaintiffs or PEPL. Instead, they attempt to support the jury’s finding of estoppel by pointing to cases that contain a different principle that also goes by the same name in Texas; a representative statement of the principle is found in Turcotte v. Trevino, 499 S.W.2d 705, 712 (Tex.Civ.App.—Corpus Christi 1973, writ ref'd n.r.e.): It is appellees’ contention that the appellants (or their predecessors) accepted benefits under the 1960 will, electing to take under such will, and by electing to take under such will are now estopped from impeaching the instrument. Where one having the right to accept or reject a transaction takes and retains benefits thereunder, he ordinarily ratifies the transaction, is bound by it, and cannot avoid its obligation or effect by taking a position inconsistent with it at a later time. As the quotation makes obvious, this principle is not based on the opposing par ty’s reasonable reliance (although reliance may occur in such situations); rather, it turns on the notion that under certain conditions inconsistent behavior by a legal actor will not be permitted. This kind of “estoppel” is thus indistinct from the principles of “ratification” or “election” and “waiver” of rights. Thus in Mapco, Inc. v. Pioneer Corp., 447 F.Supp. 143 (N.D.Tex.1978), aff'd on other grounds, 615 F.2d 297 (5th Cir.1980), for example, the plaintiff claimed the right to extract hydrocarbons from a certain supply of natural gas. The plaintiff, however, had on behalf of one defendant transported in its pipeline the very hydrocarbons that it claimed to own with full knowledge of their source, and it continued to accept payments and transport them through the time of trial. The district court concluded: There is an implied condition that he who accepts a benefit under an instrument must adopt the whole of it, conforming with all of its provisions, and renouncing every right inconsistent with them.” Simmons v. Clampitt Paper Co., 223 S.W.2d 792 (Tex.Civ.App.—Dallas 1949, writ ref’d n.r.e.). In the instant case [plaintiff] Mapco cannot accept benefits for transporting liquid hydrocarbons for Koch and at the same time dispute AOC’s right to extract same and thereby AOC’s right to sell the same to Koch. Mapco, 447 F.Supp. at 150. Once we collapse the distinction between the plaintiffs and PEPL, there is no doubt that this ratification/waiver strain of estop-pel bars the plaintiffs from recovering damages for the gas purchased from the defendants by PEPL. That is precisely the kind of inconsistent behavior that the law does not allow. PEPL’s purchases ended in 1983, however, and by finding that True’s agreement to end the contract was not given under duress, the jury found that PEPL terminated the contract lawfully. Except for the defendants’ contract with PEPL, there is no “transaction” with which the plaintiffs’ claims are inconsistent. Therefore, the ratification/waiver strain of estoppel does not sustain the take-nothing verdict. The closest the defendants come to a winning position is their assertion that PEPL “encouraged” and facilitated Hufo’s exploration and production. If PEPL, in order to get more gas out of the disputed sections, had suggested to Hufo that it drill casinghead gas “oil” wells, maximize its production of gas, and sell the gas to PEPL, we would have a different case. In such a case it could be urged that even after it ceased buying gas, PEPL and its affiliates would be barred from complaining about those casinghead gas wells that they helped bring into existence; in other words, the drilling and production of the wells was the relevant “transaction” that could not be later disavowed by PEPL or its affiliates. Nothing like that happened in this case. Hufo began to drill the wells before PEPL came on the scene. Hufo approached PEPL because he had sold gas to it before, but clearly he would have searched for another buyer had PEPL not been interested. The operator defendants were independent businesses out to make a profit. They testified that their wells were legitimate, that they had done nothing wrong in drilling and producing them; and the overwhelming inference is that they would not have behaved any differently whether or not PEPL had agreed to purchase the gas. Given that, it does not violate the principles of ratification or waiver for one Panhandle company to buy some of the gas or for other Panhandle companies later to sue for conversion, as long as the companies that sue do not recover for conversion of the gas purchased by their affiliate. It is our duty to affirm a jury verdict if legally possible, and we have looked high and low for a theory that would make PEPL’s decision to buy gas eternally binding on the plaintiffs. We have not found it. 3. Conclusion: The Sufficiency of the Jury Verdict In sum, the jury’s finding of consent by the plaintiffs and “ratification” by the plaintiffs through the inconsistent behavior of their affiliate PEPL are supported by sufficient evidence. The consent to the taking, however, ended at the very latest at the commencement of this litigation. Furthermore, the pipeline’s behavior was not inconsistent with an assertion of rights by the plaintiff at that late time. Therefore, we must remand for trial the question whether the defendants converted the plaintiffs’ gas after the time this suit began. F. Separate Affirmative Defenses The common defenses raised by all the defendants are not legally and factually sufficient to sustain the jury’s verdict. Particular defendants, however, raised unique affirmative defenses. We must now examine them to determine if the jury’s verdict can be sustained as it relates to those defendants. 1. Mitchell’s Unique Reliance Claim In general, the defendants do not argue that they actually relied on PEPL’s behavior in deciding to drill for, produce, sell, or buy the disputed casinghead gas. Mitchell’s case (and its subsidiary LEC’s, by extension ) is somewhat different; it presented evidence to the jury that it actually relied on PEPL’s behavior. First, Mitchell Transmission and Processing Division president Withers testified that, in proceeding with the True contract, he “certainly relied” on PEPL vice president Kelley’s statement that he (Kelley) had no objections to Mitchell’s proposed contract with True. Second, PEPL sold Mitchell some used compressors knowing that they would be used in processing True’s casinghead gas. Third, Mitchell presented evidence to the jury of the amount that it spent installing the gas processing plant ($12 million) and the money it lost on the deal ($9 million). Mitchell could have presented these facts to the jury to bolster its defense of estoppel. It could have argued that Withers’ reasonable reliance on Kelley’s implied representations was a proximate cause of Mitchell’s decision to build the plant, and thus caused its (contingent) liability for conversion of the plaintiffs’ gas. We must consider, on the basis of these unique facts and the jury’s general determination that the plaintiffs were estopped from suing the defendants, whether the jury’s take-nothing verdict can be sustained as to Mitchell. It cannot. Mitchell chose to submit the actual reliance issue to the jury under the guise of a negligent misrepresentation claim against PEPL. The jury’s instructions on negligent misrepresentation include the elements of equitable estoppel based on actual reliance, and the jury found in favor of PEPL. Mitchell has not appealed the jury’s decision. We will not second-guess Mitchell’s presentation of its own case, and we will not read the jury’s general finding of estoppel in favor of all defendants to have a special meaning when applied to Mitchell. 2. Entrustment, License, and Release Houston Natural Gas Corporation (“HNG”) and Mitchell argued at trial that they were protected by the sales provisions of the Uniform Commercial Code because the plaintiffs (or their agents or “alter egos”) had “entrusted” possession of the disputed hydrocarbons to True, True was a hydrocarbon merchant, and HNG and Mitchell were buyers in the ordinary course of business. See Tex.Bus. & Com.Code Ann. § 2.403(b) (Vernon 1968) (“Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.”). Also, Mitchell argued that the plaintiffs through PEPL had released all legal claims against it when PEPL expressed approval of its gas purchase agreement with True. These defenses are quite distinct, but they have a common problem from our current perspective. In each case the defendants have to show that some unilateral or bilateral act by the plaintiffs or PEPL was forever binding on the plaintiffs. HNG and Mitchell cannot make this showing. Their entrustment claim was based on an assertion that the plaintiffs and PEPL acquiesced in True’s retention of casinghead gas. The defendants essentially concede in their briefs that the entrustment ceased at the time suit was filed against True. So the entrustment defense cannot rescue HNG or Mitchell from further proceedings. Mitchell’s release claim suffers from a somewhat different problem. Mitchell argues that the plaintiffs or PEPL “released” claims against it when PEPL “released” to it the gas it was purchasing from True. This is no better than a pun, and a confusing one at that. The “release” that Mitchell seeks to establish is an implied contract between it and PEPL (and the plaintiffs, by way of corporate disregard) that extinguishes the plaintiffs’ legal rights in exchange for some benefit to PEPL and the plaintiffs. PEPL’s “release” of the gas to Mitchell was figurative only; PEPL simply agreed with True to terminate their gas purchase contract, and what True chose to do with the gas afterward was none of PEPL’s business. Even assuming the jury was given enough information to appreciate this distinction, the facts do not support a finding of release. Instead, the facts show that PEPL decided to terminate its contract with True before Mitchell came on this scene. PEPL told True that it wanted to end the contract; that is why True was seeking other buyers. True told Mitchell, and Mitchell’s Withers called PEPL’s Kelley to verify True’s assertion. Withers asked Kelley if he had any objection to Mitchell’s purchasing gas from True, and Kelley said no. Kelley’s statement may have been false, it may have been misleading, it may have been such that Mitchell could and did reasonably rely on it, both parties may have been pleased to hear what the other had to say, and each may have benefited (at least initially) from the other’s unilateral decision; but the decisions were unilateral. There was no exchange, no quid pro quo, no bargain between Mitchell and PEPL. Therefore, there was no binding contract of release. The license defense suffers from a combination of the problems with release and entrustment. To the extent Mitchell argues that PEPL and the plaintiffs unilaterally granted a license to buy gas from True, the implied license was revocable at will and was revoked (at the latest) when the plaintiffs filed suit against True. To the extent Mitchell argues that the “license” is a bilateral contract, with the license supported by consideration and thus irrevocable, we simply cannot sustain the factual basis of the argument: there was no contract, implied or otherwise, between Mitchell and PEPL or the plaintiffs. None of the unique affirmative defenses can sustain the judgment. Mitchell and HNG remain in the case on remand. G. The Cross-Appeals The district court directed verdicts in favor of the bank defendants and Billy Mack Gideon. After trial, First National Bank in Albuquerque (“FNBA”) and Mr. Gideon filed motions requesting sanctions against the plaintiffs for bringing claims that were not well-founded in fact and law. At the end of its response to Mr. Gideon’s motion, the law firm that had represented the plaintiffs in the early part of these proceedings requested attorney’s fees for having to respond. The court denied both motions, sanctioning Gideon $500 for filing a “frivolous” Rule 11 motion. The court did not state whether the $500 sanction was based on Rule 11 or on equitable grounds. FNBA and Gideon appeal the denial of their Rule 11 motions, and Gideon appeals the sanction levied upon him by the district court. We doubt whether the district court’s denial of Rule 11 sanctions to FNBA and Gideon amounts to an abuse of discretion, but the propriety of the court’s award of sanctions against Mr. Gideon seems to us a much closer question. Because we must remand other portions of this case, however, we feel the best course is to vacate the sanction against Gideon and remand all the Rule 11 questions to the district court for reconsideration in light of our recent comprehensive opinion in Thomas v. Capital Security Services, Inc., 836 F.2d 866 (5th Cir.1988) (en banc). H. Conclusion For the reasons given, the jury’s verdict can stand to the time the plaintiffs first filed suit against the operator defendants. Past that point, some of the defendants’ liability is still up in the air. Our following comments are meant to assist the district court on remand, not to trammel its judgment: they are not a binding part of our decision. We have not found it necessary to determine the proper definition of casinghead gas; our comments in section A.4(a) and elsewhere in this opinion may help guide that decision, but they do not finally resolve it. The district court should note that the Texas Railroad Commission’s examiners have treated the problem of high perforations in the Panhandle Field as a factual problem of whether the oil operators have perforated above the gas-oil contact. See Proposal for Decision, Motion by the Railroad Comm’n to Repeal Previous Orders in the Panhandle Field, Tex.R.R. Comm’n Oil & Gas Div., Docket No. 10-87,017 (Mar. 21, 1988). This approach to the problem obviously figures in arriving at the proper definition of casinghead gas. Also, the parties should brief to the district court the collateral effects of this Commission proceeding, if any. Moreover, the district court should bear in mind that the defendants’ wells may have ceased to be statutory oil wells as their condition deteriorated. The court should consider whether the defendants’ gas production, even if previously legal, became conversion of the plain tiffs’ gas if and when the defendants’ wells ceased to be legal oil wells. Assuming that the “title” issue — what we have sometimes called the “taking” issue — is bound up with questions of fact, the parties are entitled to a jury trial on the issue. If this case ever belonged in federal court, we wonder whether it continues to; all federal issues are gone, and should the parties desire to try the case to another jury from scratch, the district court should consider whether there remains a sufficient level of judicial economy to maintain pendant jurisdiction over the case. In this vein, the district court may wish to consider whether the abstention doctrine of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), has any bearing on this case. Should the parties elect to retry the case to the court, or to submit it to the court based on the evidence adduced at trial, some of these considerations may diminish or disappear. All claims not addressed in this opinion have been fully considered and found to be either superfluous, given our disposition, or without merit. Therefore, unless noted to the contrary in this opinion, the judgment is affirmed. For the sake of absolute clarity, we explicitly affirm the verdicts directed in favor of the bank defendants and Billy Mack Gideon. AFFIRMED in part, REVERSED in part, and REMANDED. . Although we set out both sides of key factual disputes, for the sake of brevity we recite the facts from a perspective favorable to the defendants since the jury’s findings in their favor must be upheld unless completely unreasonable. See Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). . In order to encourage exploration for and production of new sources of natural gas, the Natural Gas Policy Act of 1978 ("NGPA”), Pub.L. No. 95-621, 92 Stat. 3350 (1978), codified at 15 U.S.C. §§ 3301-3432, lifted government-imposed price restrictions on gas from new gas wells. Older wells subject to price regulation are referred to as "dedicated” wells because federal law regulates gas reserves "dedicated to interstate commerce" before the date of the NGPA. See 15 U.S.C. § 3314. Consequently, new wells and purely intrastate wells have been dubbed "undedicated” wells and the price of gas from those wells is allowed to fluctuate freely based on market forces. During the months of peak production from the defendants’ wells, the plaintiffs' "dedicated” gas sold for substantially less than the defendants’ “undedicated” gas. .See, e.g., Colorado Interstate Co. v. Hufo Oils, 802 F.2d 133 (5th Cir.1986) (“white oil” should not be counted as oil for well classification purposes); Dorchester Gas Producing Co. v. Harlow, 743 S.W.2d 243 (Tex.App.—Amarillo 1987, no writ) (upholding jury verdict of conversion by oil operator; holding that Texas Railroad Commission did not have primary jurisdiction over conversion claims and that wells properly classified as oil wells can still be used to convert gas owner’s gas); Amarillo Oil Co. v. Energy-Agri Products, 731 S.W.2d 113 (Tex.App.—Amarillo 1987, writ granted, Sept. 23, 1987) (upholding jury verdict of no conversion by oil operator; holding that conversion claim was an impermissible collateral attack on well classification and that the Railroad Commission had primary jurisdiction over the case); In re Stowers Oil & Gas Co., 32 F.E.R.C. ¶ 61,043 (opinion and order), 30 F.E.R.C. ¶ 63,107 (1985) (recommended decision) (holding that casinghead gas was improperly extracted from reserves dedicated to interstate commerce under federal gas law). . See Final Order, Application of Phillips Petroleum Co., Tex.R.R. Comm’n Oil & Gas Div., Docket No. 10-77,314 (May 13, 1985) (only naturally occurring liquid hydrocarbons may be counted as oil for well classification purposes), aff'd sub nom Hufo Oils v. Railroad Comm’n of Texas, 717 S.W.2d 405 (Tex.App.—Austin 1986, no writ); Proposal for Decision, Motion by the Railroad Comm’n to Repeal Previous Orders in the Panhandle Field, Tex.R.R. Comm’n Oil & Gas Div., Docket No. 10-87,017 (Mar. 21, 1988) (setting out criteria for determining the oil-gas contact; generally barring perforations by oil operators above the oil-gas contact). . It appears that there are deeper producing formations than the Granite Wash, but none relevant to this lawsuit. . See supra note 2. . While this practice seems to us questionable on its face, Texas regulators apparently did not see it that way. The Railroad Commission staff had issued opinion letters which required that LTX liquids be counted as oil for purposes of initial well testing and subsequent GOR calculations, and others that permitted the practice. For example, one 1977 opinion letter from the Commission’s chief lawyer stated: To restate the position as this office sees it the Commission has taken the position that all stabilized liquid hydrocarbons produced on a lease, including any that are separated on the lease through the use of absorption or refrigeration units and commingled in lease storage with oil produced, are considered to be oil and may be used in the calculation of gas oil ratios. Letter from Fred Young, Chief Legal .Counsel (emphasis in original). Some members of the Commission and staff apparently held contrary views. These disagreements were resolved in the Phillips proceeding, see supra note 4, but the use of LTX units for creating "oil” clearly was not as dubious a practice as it at first appears. .Bolder oil operators asserted that they could produce gas from any vertical zone with or without oil from that zone as long as the total production of the well met the statutory GOR requirements. See Read v. Britain, 422 S.W.2d 902, 903 (Tex.1967) (dicta: "Casinghead gas is gas produced from an oil well simultaneously with the production of oil.”) This argument has so far not met with approval in the Texas courts. See Dorchester Gas Producing Co. v. Harlow, 743 S.W.2d 243, 250-51 (Tex.App.—Amarillo 1987, no writ). It is not absolutely clear from the opinion, but it appears that in Harlow the oil operator conceded (or the jury found) that the Brown Dolomite is a purely gas-indigenous formation. The court calls the Brown Dolomite a gas formation and treats the factual issue of the geology of the Brown Dolomite as not in dispute, at any rate. . See Final Order, Application of Phillips Petroleum Co., Tex.R.R. Comm’n Oil & Gas Div., Docket No. 10-77,314 (May 13, 1985) (only naturally occurring liquid hydrocarbons may be counted as "oil" for well classification purposes), aff’d sub nom Hufo Oils v. Railroad Comm’n of Texas, 717 S.W.2d 405 (Tex.App.—Austin 1986, no writ). . The administrative proceeding dealing with the "high perf” issue finally began in early 1986, but the Railroad Commission had been receiving complaints about it for several years. See Proposal for Decision, Motion by the Railroad Comm’n to Repeal Previous Orders in the Panhandle Field, Tex.R.R. Comm’n Oil & Gas Div., Docket No. 10-87,017 (Mar. 21, 1988). . “Mcf” represents a thousand (1,000) cubic feet of gas. . See infra section A.3. . "Casinghead Gas” was defined in the contract as "all of Seller's interest in gas which is produced from a reservoir in association with crude oil or is dispersed in and in intimate contact with crude oil and may be legally produced from a well classified as an oil well by the Texas Railroad Commission.” In a section of the contract labeled “Title,” the parties agreed that: "Seller warrants ... that it has good title to the gas delivered to Buyer hereunder free and clear of any and all liens, encumbrances and claims whatsoever ... and that Seller has good right and lawful authority to sell the same.” Perhaps because Hufo had not yet modified its written mineral lease which restricted its operations to the Granite Wash and Red Cave formations, an appendix entitled "Schedule of Contract Acreage” the contract stated that "Acreage is committed to Buyer with respect to gas produced from the Granite Wash and Red Cave formations.” It is not at all clear whether this clause was meant to simply track the current lease provisions, or to protect PEPL from subsequent legal problems, or to protect Hufo from being obligated to supply gas from formations which it had not yet explored. There is no dispute, however, that Hufo and its successor True later delivered and PEPL accepted gas that was produced from all formations. . See supra note 7. Former Chief Legal Counsel Fred Young testified by deposition that his well-known opinion letter was intended to apply to gas processing facilities like the one installed by Mitchell. . The plaintiffs never quite make clear whether their assertion about the Brown Dolomite and Moore County Lime is purely legal or purely factual or a little of both. At times they seem to argue that as a matter of fact oil is not found in commercial quantities in the Brown Dolomite and Moore County Lime. At other times they seem to argue that regardless of whether any oil operator could in fact complete a oil well in those formations that was economically feasible on the basis of the oil production alone, the formations have been established by law as gas formations by various legislative and regulatory acts, as recognized in the party's title documents. This ambivalence is understandable, as each position has a weakness: the factual assertion could be radically undermined by increased demand and rising prices in the market for oil; the legal assertion is counter-intuitive because it amounts to the assertion that, regardless of the actual geological facts, long-held beliefs about the facts by oilmen and Texas authorities controls what appears to be a factual question: are the formations productive of oil or gas or both? For a treatment of these matters that understandably suffers from the same shortcomings, see Dowling, White Oil and Greenback Dollars: An Overview of Controversies Surrounding Production of Gas from the Panhandle Field of Texas, 19 St. Mary’s LJ. 81 (1987) (plaintiffs’ definition of casinghead gas propounded in an article by an attorney from plaintiffs' law firm). . The plaintiffs also argue that even if the defendants produced gas with oil from the Brown Dolomite and Moore County Lime, that they did so in violation of various Texas regulations that require different producing intervals to be sealed off from one another. Even if the plaintiffs’ argument is correct, however, it is not clear how that violation benefits the plaintiffs. It does not follow from the failure to seal off that the defendants converted the gas from any given interval, nor does it seem likely that the plaintiffs can bring a lawsuit rather than an administrative claim to complain of such alleged violations of the Railroad Commissions rules. . Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 et seq. . Canadian Commercial Bank was insolvent and in receivership in Canada at the time of trial. Before trial, the district court denied its motion to dismiss on grounds of international comity, and a panel of our Court held that it had no jurisdiction over an attempted appeal from the interlocutory order. See Pan Eastern Exploration Co. v. Hufo Oils, 798 F.2d 837 (5th Cir.1986). We need not review the validity of the district court's ruling that CCB could be sued in Texas in view of our decision to uphold the directed verdict entered in its favor. . We will refer to the "taking" tort as the tort of conversion. The jury was also asked to determine whether the defendants had "trespassed" on the plaintiffs’ gas rights. The instructions, however, assured the jury that “the elements establishing liability for conversion will also establish liability for trespass to personal property” but that "trespass requires a showing of even less interference with one’s right to possession than does conversion.” For the remainder of this opinion we will refer to the wrongful taking asserted by the plaintiffs as the tort of conversion. The defendants either took the plaintiffs’ gas or they did not, so nothing turns on any asserted distinction between conversion and trespass. . The instruction on conversion reads: The essence of conversion is wrongful deprivation of property. In order for you to find for a particular party and against any other parties on a claim for conversion, you must find that the offending party wrongfully exerted dominion, ownership or control over the complaining party’s property to the exclusion of that complaining party. A conversion may be committed by the acts of an agent or alter ego. Conversion involves a taking of property without the owner’s consent; hence, the complaining party must prove that each offending party took the gas owned by the complaining parties without their assent, or without the assent of their agents or alter egos, if any, expressed or implied, by words or by conduct. In answer to the question "Do you find that one or more of the Defendants has converted the Plaintiffs' gas? Answer 'yes’ or ‘no,’" the jury answered "No.” . This is disputed; see supra section A.4(a). . Whatever one might think in general about the utility of the institution of the civil jury, a case such as this inevitably raises questions about its limitations. . As the plaintiffs pointed out in a preface to a proposed issue on “title,” "The title issue will not be resolved by the global conversion and trespass issues because a finding of no trespass and no conversion could be based on a finding of consent to such trespass and conversion.” . Perhaps some of the confusion over the taking issue stems from the plaintiffs somewhat obscure way of naming and dealing with it. The plaintiffs refer to the taking issue as one of who had "title" to the gas. The problem is that no one disputes that the plaintiffs had “title” to all non-casinghead gas and that some defendants had "title” to all oil and casinghead gas on the sections in dispute. The plaintiffs’ "title” argument is really one or the other or all of three arguments why all the gas produced by the defendants was their gas: First, as we have noted, they claim that it is per se illegal to complete oil and casinghead gas wells in the Brown Dolomite and Moore County Lime formations because by law those formations are not "oil sands.” Second, they argue that as a matter of contract law, the parties who formed the agreements by which the current owners acquired their title to the mineral estates intended that the Brown Dolomite and Moore County Lime formations be off-limits to the owners of the oil and casinghead gas rights. Third, they argue that as a matter of fact the defendants' wells did not produce their "casinghead” gas with oil from an oil sand, and any jury finding to the contrary is not supported by the evidence. We do not find it helpful to consider these arguments as presenting questions of "title.” . See supra note 23. . In their objection to the instruction on the affirmative defense of waiver, the plaintiffs argued: No issue of agency or alter ego between Plaintiffs and PEPL is or can be supported by the evidence, and this is supported by the fact that Defendants have not even attempted to submit a specific, general “agency" or “alter ego” issue which would allow the jury to expressly consider those matters, choosing instead to “hide” such matters within other issues and thereby avoid close, specific scrutiny of Defendants’ true position by the jury. Simply stated, all references to agency or alter ego or what any party contends should be deleted. If the Court requires that the instructions such as these be submitted, then they should be submitted so that the jury shall determine separately: 1) whether Plaintiffs themselves gave up any right or undertook any complained-of act or omission; 2) whether PEPL gave up any right of Plaintiffs’ (as opposed to rights of PEPL) or undertook any complained-of act or omission; and 3) if PEPL did so, whether it was acting as a duly authorized agent of Plaintiffs at the time in the course and scope of its authorization and in Plaintiffs’ best interests. (Henceforth, this Objection in its entirety will be referred to as "Objection No. 1”). The plaintiffs thereafter made "Objection No. 1” to several other affirmative defenses. .Fed.R.Civ.P. 51 ("No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection."); J.C. Motor Lines, Inc. v. Trailways Bus System, 689 F.2d 599, 603 (5th Cir. 1982) ("we have consistently held that a party who fails to object to the form of special interrogatories cannot complain for the first time on appeal”). . Cf. Laguna Royalty Co. v. Marsh, 350 F.2d 817, 824 (5th Cir.1965) (discussing problem of a "semi-general” verdict in the context of a Rule 60(b) motion); but see ADP-Financial Computer Services v. First Nat'l Bank, 703 F.2d 1261, 1266-67 (11th Cir.1983) (affirming ambiguous jury finding based on the adequacy of one of the jury's two possible determinations). . The Rule contains a list of affirmative defenses and a catch-all phrase at the end: In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations waiver, and any other matter constituting an avoidance or affirmative defense. Fed.R.Civ.P.- 8(c). . The only Texas case that plaintiffs cite for this proposition—Shell Petroleum Corp. v. Liberty Gravel & Sand Co., 128 S.W.2d 471, 474 (Tex.Civ.App.—Beaumont 1939, no writ) — does not support it. In that case, the defendant had a mineral lease on property that was senior to the plaintiffs gravel and sand lease on the same property. The defendants moved the plaintiffs’ sand to drill an oil well, and in the process damaged it and decreased its commercial value. In an action for trespass on personal property based on the removal of the sand, the court held that even if under the leases the defendant had the right to move the sand and could only be found liable if it had negligently caused damage, the defendant could not raise the issue because it was an affirmative defense to a trespass action. Since the defendant had pled only a general denial, it could not raise any affirmative defense. We fail to see what this case has to do with consent and conversion. . The encyclopedia authors, for example, appear to side with the defendants when they begin their discussion of the "Elements of Conversion” with the statement: "Conversion involves a taking of property without the owner’s consent; hence there can be no conversion where the owner has expressly or impliedly assented to the taking or disposition.” 15 Tex. Jur.3d Conversion § 3 (1981) (footnote omitted). But under the heading “Defenses,” the same article states: "There is no conversion where a person takes only what he is entitled to receive, [or] takes with the owner’s knowledge and con-sent_" Id. at § 24 (footnotes omitted). It is worth noting, however, that the heading of section 24 is “Defenses” and not “Affirmative Defenses." Moreover, although the cases cited by the defendants are not absolutely clear, the plaintiffs have not cited any cases that even hint to the contrary. . The court surely means "taking” here rather than "conversion”: a "conversion” is wrongful by definition; a "taking” is made wrongful (and becomes conversion) by lack of consent. . See also Lone Star Beer, Inc. v. Republic Nat'l Bank of Dallas, 508 S.W.2d 686, 687 (Tex.Civ.App.—Dallas 1974, no writ); Lone Star Beer, Inc. v. Republic Nat'l Bank of Odessa, 468 S.W.2d 930, 933 (Tex.Civ.App.—El Paso 1971, writ ref'd n.r.e.). . Consent ordinarily bars recovery for intentional interferences with person or property. It is not, strictly speaking, a privilege, or even a defense, but goes to negative the existence of any tort in the first instance. It is a fundamental principle of the common law that vo-lenti non fit injuria — to one who is willing, no wrong is done.... As to intentional invasions of the plaintiffs interests, his consent negatives the wrongful element of the defendant’s act, and prevents the existence of a tort. “The absence of lawful consent,” said Mr. Justice Holmes, “is part of the definition of an assault.” The same is true of false imprisonment, conversion, and trespass. Prosser & Keeton on Torts 112 (5th ed. 1984). . Webster’s defines the verb consent: “to give assent or approval: AGREE syn ASSENT" and the noun: "compliance in or approval of what is done or proposed by another: ACQUIESCENCE”; the verb assent: “to agree to something esp. after thoughtful consideration: CONCUR” and the noun: "an act of assenting: ACQUIESCENCE, AGREEMENT.” Webster’s New Collegiate Dictionary 67, 241 (1973). . See Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). . The first filing of the various cases that merged into this suit was a complaint filed by the plaintiffs in the True bankruptcy proceedings on August 17, 1985. That is the date upon which the jury’s finding of consent became legally unsupportable. . The defendants’ arguments on the equitable defenses can be interpreted to include the contention that, even without the participation of PEPL, the plaintiffs’ claims should be barred by equity. It is clear, however, that the plaintiffs themselves did not actively take any action which could be construed as ratifying the defendants’ acts or waiving their own rights. The most that can be said against the plaintiffs is that they knew of the. defendants’ allegedly wrongful acts and did nothing for so long a time that it would be inequitable to allow them to sue. This is, of course, simply a claim of laches, and the jury specifically found against the defendants on that ground. Since the defendants have not appealed that jury finding, we limit ourselves to examining the equitable arguments based on PEPL's behavior as attributed to the plaintiffs. .This clause is misleading. It appears to exclude the case of classic "alter ego,” i.e., "disregarding” the corporate existence when there really is no legal or formal separate existence because of complete domination by the owners, co-mingling of funds, flaws in corporate formalities, etc. Yet, as the Supreme Court makes clear later in the opinion, "alter ego” is one of the grounds of corporate disregard listed by the Court just below — specifically, ground number (2). "[A]lter ego is only one of the bases for disregarding the corporate fiction: ‘where a corporation is organized and operated as a mere tool or business conduit of another corporation.’ ” Castleberry, 721 S.W.2d at 272. . “Inadequate capitalization is another basis for disregarding the corporate fiction.” Castleberry, 111 S.W.2d at 272 n. 3. . We use the term "owners” loosely to mean those in actual control of the corporation that the claimant seeks to disregard. There may be situations in which a corporation is dominated and controlled by persons who are not the nominal owners — or even the real owners. See Riquelme Valdes v. Leisure Resource Group, Inc., 810 F.2d 1345, 1354 (5th Cir.1987). . In the words of Castleberry: Alter ego applies when there is such a unity between corporation and individual [or par ent corporation] that the separateness of the corporation has ceased and holding only the corporation liable would result in an injustice. It is shown from the total dealings of the corporation and the individual, including the degree to which corporate formalities have been followed and corporate and individual property have been kept separately, the amount of financial interest, ownership and control the individual maintains over the corporation, and whether the corporation has been used for personal purposes. Castleberry, 721 S.W.2d at 272 (citations omitted). In addition to legal formalities, formal sufficiency includes adequate capital; thus Cast-leberry's seventh reason in its laundry list of reasons for corporate disregard — inadequate capitalization — is closely related to alter ego, although it also fits comfortably in the third strand of corporate disregard discussed below. . Pace Corp. v. Jackson, 155 Tex. 179, 195, 284 S.W.2d 340, 351 (1955). . The phrase "alter ego” is certainly much easier to use in a decent English sentence than “disregarding the corporate fiction”; but it is now a misstatement of Texas law to use "alter ego” as a generic description of corporate disregard. The plaintiffs never objected to this usage in the district court, however, and in fact used it themselves. . The defendants raise an additional argument on appeal that this lawsuit itself was an elaborate attempt to circumvent pricing restriction because the plaintiffs asked for damages based on the higher non-dedicated gas prices. This argument was not made to the jury so we pay it no heed. . See Boeing Co. v. Shipman, 411 F.2d 365, 368-70 (5th Cir.1969) (en banc). . See, e.g., Times-Mirror Co. v. Superior Court of Los Angeles County, 3 Cal.2d 309, 44 P.2d 547 (1935). . See Turcotte v. Trevino, 499 S.W.2d 705, 716 (Tex.Civ.App.—Corpus Christi 1973, writ ref'd n.r.e.) (it is an “essential element" of estoppel that the person asserting it must have been “put in a worse condition” by the behavior of the person he seeks to estop). . The instruction on estoppel reads: Defendants contend that Plaintiffs are es-topped from claiming that the gas produced from the wells in question is the property of plaintiffs. [1] You are instructed that estop-pel requires a false representation or concealment of a material fact made with actual or constructive knowledge of the fact, to a party without knowledge of the fact, with the intention that it should have been acted upon, and that the party to whom it was made must have relied upon or acted upon it to his prejudice. [2] You are further instructed that one who has accepted and retained the beneficial part of a transaction with full knowledge of the facts is estopped to repudiate the disadvantageous part thereof, or to assert a right inconsistent with the provision of the transaction. In connection with this issue, you shall take into account the words or conduct of Plaintiffs, their agents, and their alter egos, if any, which you may find to be their alter ego. (Emphasis and bracketed material added.) .The gas processing defendants do have a reliance argument with some support in the record; their particular claims are discussed separately in section F.l, infra. . The jury was properly instructed on this form of "estoppel”; see the second part of the instruction quoted supra note 49. . The court defined "duress” as follows: You are instructed that duress is a condition in which one is induced by wrongful act or threat of another to make, alter, or cancel a contract under circumstances which deprive him of the exercise of his free will. There can be no duress unless there is a threat to do some act which the party threatening had no legal right to do. You are instructed that duress may be evidenced when a threatening party acts oppressively to further its own economic interest. It also may be evidenced by forcing a victim to choose between distasteful and costly situations, i.e., bow to duress or face bankruptcy, loss of credit rating, or loss of profits from a venture. We seriously doubt whether the last sentence of the quoted instruction is an accurate statement of the law, but even with that invitation and the question “Do you find that Panhandle Eastern Pipeline’s (PEPL) conduct in question with the termination of the Hufo/True Gas Purchase Contract constituted duress as to True?,” the jury answered “No.” . As a matter of fact, the plaintiffs did sue for conversion of the gas purchased by PEPL! — but of course our present concern is only with that part of the judgment that cannot be sustained by the jury’s finding of consent. . Mitchell’s liability is not distinct from its subsidiary LEC's liabililty; for simplicity we refer only to Mitchell throughout this section. Houston Natural Gas Corporation ("HNG") and its affiliates claimed at trial to have reasonably relied on PEPL’s relationship to True to justify their subsequent purchases; they also submitted negligent misrepresentation issues to the jury. We will not treat their claims separately, as our analysis of Mitchell’s claims disposes of any defenses raised by HNG. . The instruction on negligent misrepresentation reads in part: In order to find that a negligent misrepresentation occurred Mitchell and HNG must prove each of the following elements: First, that PEPL, in the course of its business, supplied false or incorrect information to Mitchell and HNG for their guidance in the course of their business; and Second, that PEPL failed to exercise reasonable care or competence to communicate correct information to Mitchell and HNG; and Third, that Mitchell and HNG justifiably relied upon the information from PEPL and suffered a loss of money that was proximately caused by such reliance; and Fourth, that Panhandle [PEPL] manifested an intent to supply the information for the sort of use in which the loss to Mitchell and HNG occurred. . The jury instruction begins by stating: "Mitchell claims that Plaintiffs, through PEPL, released any cause of action Plaintiffs may have against Mitchell when PEPL released the gas it had been purchasing from True to Mitchell.” The potential for confusion in this double use of "release” is evident. . Some of the defendants argue that they did nothing past the time of the filing of the plaintiffs’ lawsuits that would give rise to liability for conversion; that question of fact is for the district court on remand.

ARNOLD, Circuit Judge. In this habeas action John Malek contends that he was denied due process and subjected to double punishment for a single offense. The District Court adopted the magistrate’s recommendation that the writ be denied. We affirm the District Court, with some observations, however, as to relief other than immediate release to which Malek may have a legitimate claim. In 1978 Malek was serving the first of two consecutive sentences for robbery imposed by a judge in Douglas County, Nebraska. He escaped from custody in February of that year, but then surrendered a few days later. This appeal arises out of the sentence he received from a Lancaster County judge after pleading guilty to escaping from prison and being a habitual criminal. Malek claims that the sentencing judge promised him he would be released early if he agreed to combat homosexual assault and drug abuse while in prison. Malek argues that he has kept his side of the bargain, but that the judge has reneged. He contends the breach of this promise constitutes a violation of due process. Moreover, Malek argues that he was in effect sentenced both to serve time in prison and to work to stop homosexual assault and drug abuse, and that this was double punishment for a single offense, in violation of the Double Jeopardy Clause. Malek’s contention with respect to the broken promise can be interpreted in two ways: either he was told he would be released in three years or he was told the judge would intercede on his behalf to help him get parole. A review of the record of the sentencing hearing reveals that in a colloquy with a social worker, Malek promised to fight homosexual assault and drug abuse. The social worker remarked that, if Malek kept his word, the two of them could be swimming together at the YWCA in three years. After that exchange, the judge admonished Malek to keep his oath, warning him it would not be easy. The judge said he wished he could be lenient with Malek, but that the law mandated a minimum sentence of ten years. He then plainly sentenced Malek to ten years in prison, and he told Malek this sentence was to run consecutively to the earlier convictions. However, the judge also indicated that if Malek did as he promised he would “join hands with [Malek] about this long tenure.” On these facts, we reject Malek’s first interpretation of events. The judge did not promise Malek he would be released early, certainly not after the three years he claims. In fact, since Nebraska law mandated a minimum sentence of ten years for Malek’s latest offenses, and since Malek had not yet finished serving his sentences for robbery, the judge did not have the power to have Malek released in three years. The second interpretation of events is more plausible. The judge did promise at the sentencing hearing and in a later letter to the social worker to intercede on Malek’s behalf at the “appropriate time.” Unfortunately, that time has not yet come. In 1983 Malek wrote to the Lancaster County district judge and requested a recommendation for early parole. That request was rejected as premature, apparently because Malek was still serving time on his earlier robbery convictions, which originated in another county. Malek could not petition the court in Lancaster County for early parole until 1985, when he began serving the escape sentence. No further request for parole was ever made, at least not in a form considered procedurally appropriate under state law. Thus, we conclude the judge’s promise was never broken. We trust, however, now that this technicality has been brought to light, that counsel will again request a recommendation for parole from the Lancaster County district judge. And, if Malek has in fact worked to improve prison conditions, he ought to get his recommendation for early parole. Under Neb. Rev.Stat. § 83-1110(1) any offender is eligible for parole whenever the sentencing judge or his successor in office gives his approval. This does not necessarily mean that Malek would be paroled. That decision lies in the discretion of the Nebraska parole authorities. But a favorable recommendation from the court would at least make Malek eligible for parole consideration, a status he has not yet attained. If he has fulfilled his side of the bargain made at the time of sentencing (and the record before us indicates that he has), we think the sentencing court will keep its side. Apparently a simple letter request from Malek or his lawyer would be sufficient to put the matter before that court for decision. Malek’s second argument is that he was subjected to two punishments for the same crime: (1) serving ten years in prison, and (2) working to combat homosexual assault and drug abuse. As noted, the record shows that the judge sentenced Ma- lek to a single sentence: ten years in prison. Malek’s committment to improve prison problems was undertaken voluntarily; he could have stopped at any time. It cannot be considered an additional punishment. Accordingly, we affirm. . The Hon. Warren K. Urbom, United States District Judge for the District of Nebraska. . The Hon. David L. Piester, United States Magistrate for the District of Nebraska.

LIVELY, Circuit Judge. This appeal requires us to determine the conditions under which a party may appeal from a stipulated judgment dismissing an action. As a general rule, neither party may appeal from an agreed judgment because it is not an involuntary adverse judgment. There is an exception, however, when the appellants’ “solicitation of the formal dismissal was designed only to expedite review of [a prior] order which had in effect dismissed appellants’ complaint.” Raceways Properties, Inc. v. Emprise Corp., 613 F.2d 656, 657 (6th Cir.1980). In this case the plaintiffs contend that denial of their motion to remand the action after removal effectively dismissed it. I. A. The plaintiff Julius Laczay filed suit in a Michigan court seeking damages and rein statement to a position with Ross Adhesives, where he had worked for sixteen years before being terminated on August 15, 1986. In Count 1 of the complaint, Laczay charged the defendants with violating the age discrimination prohibitions of Michigan’s Elliott-Larsen Civil Rights Act. In Count II the plaintiff alleged that the defendants misrepresented their intent to discontinue the Michigan operations where Laczay was employed, and fraudulently obtained a release from the plaintiff of claims against the defendants in exchange for $320. The plaintiff tendered back the payment and sought a declaration that the release was void. In Count III Jolanda Laczay sought damages for loss of consortium. Since Count III does not figure in this appeal, references to the plaintiff or Laczay will relate to Julius Laczay. Before answering, the defendants filed a petition for removal of the action to the United States District Court for the Eastern District of Michigan. As the ground for removal the defendants asserted that the district court had original jurisdiction under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, because the release referred to in Count II was obtained pursuant to a termination agreement between the defendants and the union that represented the plaintiff. In their answer the defendants denied the operative allegations of the complaint and pled as affirmative defenses the plaintiffs failure to exhaust administrative remedies under the collective bargaining agreement between his union and employer, and the statute of limitations applicable to § 301 actions. B. The plaintiff filed a motion to remand, arguing that the complaint raised only state causes of action and issues that were not “inextricably intertwined” with consideration of the terms of the collective bargaining agreement. In extensive briefing the parties argued the difficult issue of when a claim by an employee against an employer is preempted by § 301 because it implicates a labor contract. In Allis-Chalmbers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985), the Supreme Court stated that the analysis must focus on “whether evaluation of the [state law] claim is inextricably intertwined with consideration of the terms of the labor contract.” The district court denied the motion to remand, concluding that the gravamen of the complaint was that Laczay “was terminated pursuant to an invalid termination agreement between his union and his employer.” Thus, in the court’s view, the plaintiff’s claims were “ ‘inextricably intertwined’ with the terms of this agreement and the negotiating process that led to ... Laczay’s execution of the release he is now challenging.” The plaintiff filed a motion for reconsideration, citing a more recent Supreme Court decision, Caterpillar, Inc. v. Williams, — U.S. -, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), but raising no new issues. The district court found Caterpillar inapplicable, and denied the motion. C. The next docket entry of substance, after the order denying reconsideration, consists of a stipulation and order of dismissal with prejudice. These documents read as follows: STIPULATION DISMISSING ACTION Plaintiffs stipulate that they have not satified [sic] the prerequisites to the bringing of an action under § 301 of the Labor Management Relations Act (i.e., exhaustion of grievance procedure and/or internal union appeal). Plaintiffs therefore stipulate that this action may be dismissed with prejudice and without costs, it being Plaintiffs’ position that Plaintiffs should be permitted to pursue state causes of action in the state court, but this Honorable court having ruled against Plaintiffs on that issue. Attached is the agreed Dismissal Order. DAN W. CHANDLER (P26533) ALAN B. POSNER (P27981) Attorney for Defendants Attorney for Plaintiffs DISMISSAL ORDER At a session of said Court held on the 28 day of Aug., 1987: Upon stipulation of the parties, it is ordered that the above captioned action is dismissed with prejudice and that each party shall bear their own fees and costs of action. Robert DeMascio UNITED STATES DISTRICT JUDGE It is undisputed that counsel for the plaintiff prepared the stipulation and forwarded it to counsel for the defendant, who added the last sentence, signed it, and returned it with the order of dismissal that he had prepared. Counsel for the plaintiff then forwarded both documents to the district court, where they were entered after the district judge signed the order. The plaintiff then appealed to this court, and the defendants raised the issue of his right to appeal in their brief. II. A. The Supreme Court recognized an exception to the general rule that one who voluntarily dismisses his or her complaint has no right of appeal in United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). In Procter & Gamble the government refused to comply with a trial court order directing it to turn over to the defendant in a civil antitrust action certain grand jury testimony taken in a related criminal investigation that had produced no indictments. In order to avoid risking a contempt citation, the government filed a motion for the district court to amend its order to provide that if production was not made the court would dismiss the complaint. The defendant did not oppose the motion and an amended order was entered. When the government did not produce the transcripts, the district court entered an order of dismissal. On direct appeal from the district court, the Supreme Court held that the appeal could be maintained because the government “did not consent to a judgment against [it], but only that, if there was to be such a judgment, it should be final in form instead of interlocutory, so that [it] might come to this court without further delay.” Id. at 681, 78 S.Ct. at 986, quoting Thomsen v. Cayser, 243 U.S. 66, 83, 37 S.Ct. 353, 358, 61 L.Ed. 597 (1917). The Court found that the United States had consistently opposed the request for grand jury materials, and “[w]hen the Government proposed dismissal for failure to obey, it had lost on the merits and was only seeking an expeditious review.” Id. 356 U.S. at 680-81, 78 S.Ct. at 985-86. At least one court has limited the application of Procter & Gamble to cases where the appellant faces the prospect of contempt. See Plasterers Local Union v. Wyland Enterprises, Inc., 819 F.2d 217, 218-19 (9th Cir.1987). However, this court has applied Procter & Gamble more broadly. In Raceway Properties, Inc. v. Emprise Corp., 613 F.2d 656 (6th Cir.1980), the district court entered an interlocutory order holding that the relevant market in a private antitrust case was different from that claimed by the plaintiffs. The plaintiffs advised the court that they were not prepared to proceed with evidence regarding the relevant market outlined by the court and that they believed the order effectively terminated the lawsuit. The plaintiffs then requested the court to enter a formal order of dismissal so they could challenge the relevant market ruling on appeal. The order was entered, and the defendant sought dismissal of the appeal on the ground that the order was not appealable. Citing Procter & Gamble, this court found the order of dismissal was appealable because the appellants’ “solicitation of the formal dismissal was designed only to expedite review of an order which had in effect dismissed appellants’ complaint.” 613 F.2d at 657. The court reached the same result in Bogorad v. Eli Lilly & Co., 768 F.2d 93 (6th Cir.1985). In that case the plaintiff sought dismissal in the district court because she concluded that a preliminary order in her product liability case foreclosed her only viable claim. The court granted her motion after offering to hear the case on another theory. In denying the defendant’s motion to dismiss the appeal, this court relied on Procter & Gamble and Raceway Properties to find that the gener al rule against appealing voluntarily dismissed actions did not apply. The only case of which we are aware that involves an attempt to appeal from a voluntary dismissal following denial of a motion to remand was decided under the general rule long before the Supreme Court recognized an exception in Procter & Gamble. See Kelly v. Great Atlantic & Pacific Tea Co., 86 F.2d 296 (4th Cir.1936). This court followed Kelly in Management Investors v. United Mine Workers, 610 F.2d 384 (6th Cir.1979), without citing Procter & Gamble. A careful reading of Kelly and Management Investors discloses that in both cases the plaintiffs sought and received dismissals without prejudice following trial court rulings that they felt doomed their cases. The Kelly court explained its reasoning that such a dismissal is not appealable as follows: If plaintiff, after refusing to proceed, had not taken a voluntary nonsuit, defendant could have insisted on a verdict and judgment on the merits, which would have been determinative of the rights of the parties and would not have left plaintiff at liberty to commence another action for the same cause, as is his right under the voluntary nonsuit. 86 F.2d at 297. The court in Management Investors followed the same reasoning since the dismissal was without prejudice. B. It appears that the “no appeal from a voluntary dismissal” rule is ironclad only with respect to dismissal without prejudice. A majority of the courts of appeals that have ruled on the issue appear to accept this court’s formulation in Raceway Properties of an exception when the dismissal is with prejudice and “designed only to expedite review” of a prior order having the effect of a dismissal. See Empire Volkswagen, Inc. v. World-Wide Volkswagen Corp., 814 F.2d 90, 94 (2d Cir.1987); Studstill v. Borg Warner Leasing, 806 F.2d 1005, 1008 (11th Cir.1986); cf. Coughlin v. Regan, 768 F.2d 468, 470 (1st Cir.1985); LeCompte v. Mr. Chip Inc., 528 F.2d 601, 603 (5th Cir.1976). On the other hand, the Ninth Circuit held in Seidman v. City of Beverly Hills, 785 F.2d 1447, 1448 (1986), that a plaintiff who consented to the dismissal of his action with prejudice deprived the court of appeals of jurisdiction to hear his appeal. The court stated, “A plaintiff may not appeal a voluntary dismissal because it is not an involuntary adverse judgment against him.” Id. (footnote omitted). This appears to be inconsistent with the court’s statement in Coursen v. A.H. Robins Co., 764 F.2d 1329, 1342 (9th Cir.1985), as corrected in 773 F.2d 1049 (1985): “While a plaintiff cannot appeal a voluntary dismissal without prejudice, he or she may appeal a dismissal with prejudice.” At any rate, this court appears to be firmly committed to recognizing the exception in proper cases when the dismissal is with prejudice. III. Since ordinarily a party who consents to entry of a judgment has no right to appeal, one who seeks to come within an exception to this rule should make his or her intention known to the court and opposing parties. As the court stated in Coughlin v. Regan, “While it is possible for a party to consent to a judgment and still preserve his right to appeal, he must reserve that right unequivocally, as it will not be presumed.” 768 F.2d at 470. It is manifest from the text of the Supreme Court opinion in Procter & Gamble that the government did make it clear to the district court and to the defendant that it requested a final order of dismissal solely for the purpose of expediting an appeal. The same is true with respect to this court’s opinion in Raceway Properties, where the court wrote that “[t]he appellants requested a formal order of dismissal so that they could proceed with an appeal challenging the district court’s ruling on the scope of the relevant market.” 613 F.2d at 657. While the brief discussion of the issue in Bogorad does not make the point as directly, it is there by implication. The court’s opinion states that the district court had offered to proceed on a second theory after closing the door on the plain tiff’s preferred theory. Thus, there was discussion of alternatives before the plaintiff sought a final order “designed only to expedite review.” 768 F.2d at 94. IV. Since the solicited dismissal in this case was with prejudice, we must determine whether the present case comes within the exception. We conclude it does not, and find the course followed by the plaintiff troubling in several respects. The basic requirement for appealability of a consent judgment is that the one proposing or soliciting it shall have “lost on the merits and [be] only seeking an expeditious review.” Procter & Gamble, 356 U.S. at 681, 78 S.Ct. at 985. It is not at all clear that Laczay had lost on the merits when the district court denied his motion to remand to the state court. In the stipulation for dismissal the plaintiff stated that he had not satisfied the requirement of a § 301 action that there be an exhaustion of grievance procedures or internal union remedies. In his reply brief, the plaintiff added as a second reason for considering his case a lost cause under § 301 that it would have been barred by the six-month statute of limitations for § 301 actions prescribed by the Supreme Court in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). These contentions overlook several important facts. In Count II the plaintiff pled fraudulent misrepresentations by the defendants which, if proved, might have excused, or at least extended the time for pursuing internal remedies until the fraud was discovered. The complaint stated that “since approximately October 1986 or earlier” the defendants continued to carry on operations that they had represented to the plaintiff were being discontinued. If the plaintiff would have reasonably discovered this alleged misrepresentation in October 1986, his complaint filed April 1, 1987, arguably would have been within the six-month limitations period of DelCostello. Beyond that, however, the plaintiffs action is a “straightforward” § 301 contract action, not a “hybrid § 301/fair representation claim” against his employer and his union. DelCostello involved a hybrid action, and it is not at all clear that the six-month limitations period prescribed for such actions applies to all contract actions by an employee against an employer. In these “straightforward” cases, United Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), requires application of the most analogous state statute of limitations. This is evident from the limiting language of DelCostello that “resort to state law remains the norm for borrowing of limitations periods.” 462 U.S. at 171, 103 S.Ct. at 2294. For these reasons, it cannot be said with certainty that the plaintiff had finally lost on the merits once his case was deemed a § 301 action. At oral argument counsel for the plaintiff said he was abandoning the fraud claim. However, he could have tendered an amendment to the district court deleting Count II after the court ruled on his motion to remand. Then the district court would have had an opportunity to reconsider the remand question in the light of a complaint charging nothing but an age discrimination violation under the state civil rights act. Instead, the plaintiff stipulated for dismissal and filed a notice of appeal. Under all of these circumstances we do not believe this is an appropriate case for an appeal from a dismissal entered at the behest of the party now seeking to appeal. It was incumbent upon the plaintiff to determine by careful analysis whether the prior ruling of the court actually did have the effect of a final adverse judgment on the merits. If such a determination was made, he then had the responsibility to inform the court and opposing parties that he was seeking a final order of dismissal with prejudice for the sole purpose of obtaining an expeditious review of the prior order, and of reserving that right unequivocally in the stipulation or the order. Having done none of these things, the plaintiff did not preserve a right of appeal. The appeal is dismissed at the plaintiff-appellant’s cost.

PER CURIAM: I. FACTS Windward Traders, Ltd. (“Windward”) contacted Fred S. James & Company of New York, Inc. (“James”) in March 1980 to renew the $200,000 marine insurance coverage on Windward’s vessel, the WINDWARD TRADER (“the vessel”). James was an insurance broker that had expertise in marine insurance. James had procured the preceding year’s insurance on the vessel for the vessel’s previous owner. When it contacted James regarding renewal coverage, Windward informed James that the vessel was operating outside the Caribbean waters. James procured the requested coverage by placing 30.5% of the exposure (i.e., $61,-000) with American Centennial Insurance Company (“American Centennial”) and the remaining 69.5% (i.e., $139,000) with various British underwriters (“British market”), including the underwriters at Lloyds. James arranged the American Centennial coverage through James International Treaty Corporation, whom the parties stipulated was American Centennial’s agent, and the British market coverage through P.W. Kininmonth, Ltd. (“Kininmonth”), a British insurance broker somewhat comparable to James. The district court found that Kininmonth acted solely as Windward’s agent in procuring coverage with the British market. The parties agree that at no time did James notify the underwriters — American Centennial and the British market — or Kininmonth of the vessel’s location. The coverage went into effect on March 4, 1980. March 27, 1980, James sent Windward a written confirmation letter (“cover letter”) which outlined the terms of the coverage. The cover letter was the only written insurance document received by Windward and the district court held that it constituted the entire insurance policy among the parties. The propriety of this finding is not contested on appeal. The cover letter was mailed from James’ New York office to Windward’s office and principal place of business in the Ft. Lauder-dale, Florida area. The cover letter was a printed form on James’ letterhead. Certain descriptive details of the coverage, such as the insured’s name, the amount of coverage, and the policy period, were handtyped in the spaces provided on the printed form. One hand-typed portion of the cover letter identified the underwriters as “the British market thru Kininmonth, 69.5%” and “American Centennial Insurance Co. thru James International Treaty, 30.5%.” A printed clause on the cover letter stated that the coverage was “subject to the general conditions and trading warranties as set forth on the back hereof.” Handtyped on the back of the cover letter was the following: This insurance is subject to the following clauses and special provisions: American Institute Hull Clauses ... Trading: warranted Caribbean trading or held covered at additional premium to be advised New York Suable Clause. The American Institute Hull Clauses (AIH Clauses) referenced in the handtyped portion of the cover letter are standardized clauses commonly used in marine insurance and generally are set forth in a printed form designed to be attached to the insured’s policy. Two of the clauses are relevant to this action: [1] The terms and conditions of the following clauses are to be regarded as substituted for those of the policy to which they are attached ... [2] The Vessel is held covered in case of any breach of conditions as to ... locality ..., provided (a) notice is given to the Underwriters immediately following receipt of knowledge thereof by the Assured, and (b) any amended terms of cover and any additional premium required by the Underwriters are agreed to by the Assured. The parties agree, however, that James sent only the cover letter to Windward. Windward was never sent a copy of the AIH Clauses or the New York Suable Clause referenced in the cover letter. Kininmonth issued two cover notes to James on April 16, 1980, which confirmed the details on Kininmonth’s placement of the insurance with the British market on behalf of James and Windward. One cover letter indicated that 42.648% of the 69.5% of Windward’s total coverage procured by Kininmonth was “EFFECTED WITH: Underwriters at Lloyds.” The other cover letter specified that the remaining 57.352% of British coverage was “EFFECTED WITH: Insurance Companies as per schedule attached.” The attached typewritten schedule identified 23 separate insurers and the percentage of coverage each underwrote. James did not send the Kininmonth cover letters to Windward. The vessel sank off the coast of Portugal on May 29, 1980. The brokers and underwriters were promptly notified. Apparently, this was the first notice the underwriters and Kininmonth had that the vessel was outside its warranted Caribbean trading area. II. PROCEDURAL BACKGROUND Through James and Kininmonth, Windward filed a claim with each underwriter. The underwriters denied coverage on the basis that Windward had violated the AIH “held-covered” clause by failing to immediately notify them when the vessel left Caribbean waters. Windward subsequently brought this action against American Centennial, James, and Kininmonth, seeking to recover $200,000 as damages, the amount of coverage under the insurance agreement. Windward asserted that the defendants were jointly and severally liable for the requested damages. Windward’s claim against American Centennial was that the coverage was in effect when the boat sank because under the terms of the cover letter Windward received from James, notification that the trading warranty had been breached was not necessary to continue coverage. Windward’s claim against Kininmonth was that Kininmonth acted as the agent for an undisclosed principal (the British market), that the British market was responsible for coverage for the same reasons asserted in Windward’s claim against American Centennial, and that under agency law, Kinin-month therefore was liable for its undisclosed principal’s share of the coverage. Windward’s claim against James was that James had a duty as Windward’s agent to procure and maintain the requested insurance, and that it breached this duty by failing to inform the underwriters that the vessel was outside Caribbean waters. The district court held that the vessel was covered when it sank. The court reasoned that the “held-covered” clause of the cover letter and the AIH “held-covered” clause referenced by the cover letter conflicted with respect to the notification requirement and that the conflicting provisions had to be interpreted in favor of the insured, Windward. Thus, the district court held that Windward had no obligation to notify the underwriters when the vessel breached the trading warranty and therefore that the coverage was in effect when the vessel sank off the coast of Portugal, well outside its warranted trading area of the Caribbean. Based on these conclusions, the district court allowed Windward’s claim against American Centennial. The district court later assessed Windward’s attorney’s fees against American Centennial in accordance with § 627.428 of the Florida Insurance Code, which allows an insured who successfully litigates a claim against its insurer to recover attorney fees. The district court denied Windward’s claim against James because of its conclusion that the insurance was in effect when the boat sank. The district court reasoned that James’ negligence, if any, in failing to report the vessel’s location to the underwriters did not result in a breach of its duty to procure insurance on the vessel. With respect to Kininmonth, the district court concluded that it had acted as Windward’s agent rather than as agent for the British market in placing the insurance. The district court also concluded that even if Kininmonth had acted as the British market’s agent, it had adequately disclosed the identity of its alleged principal in the two cover letters it issued to James, Windward’s agent. Thus, the district court held that Kininmonth was not the agent of an undisclosed principal and denied Windward’s claim against Kininmonth. American Centennial appeals the judgment entered against it. It also appeals the attorney fee award. Windward cross-appeals the denial of its claims against James and Kininmonth. III. DISCUSSION A. American Centennial The focus of the litigation against American Centennial in the district court was on whether the trading warranty/held-covered clause of the cover letter James sent to Windward conflicted with the held-covered clause of the AIH Clauses referenced by the cover letter. An additional concern in the proceedings below was which clause controlled if the clauses conflicted. As discussed above, the district court held that the clauses conflicted and that the cover letter clause controlled. We affirm the district court’s conclusion that the insurance was in effect when the vessel sank, but we do so on different grounds. The parties stipulated that Florida substantive law applies. Section 627.409(2) of the Florida Insurance Code provides that: (2) A breach or a violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or application therefore shall not render void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by any means within the control of the insured. As a Florida court explained, “[t]he statute is designed to prevent the insurer from avoiding coverage on a technical omission playing no part in the loss.” Pickett v. Woods, 404 So.2d 1152, 1153 (Fla.App.1981). We assume arguendo that the AIH held-covered clause was in full effect, i.e., that Windward was required to immediately notify the underwriters of any breach of the locality warranty in order to maintain coverage. The parties agree that although James was notified, the underwriters were never notified that the vessel was outside Caribbean waters, its warranted trading locality. This breach of the notification provision clearly did not increase the hazard to the vessel. In addition, its failure to notify the underwriters obviously played no part in causing the loss. Thus, requiring American Centennial to pay its share of the coverage despite the breach of the notification provision fully accords with the purpose of § 627.409(2) as that statute is interpreted by the Florida courts. See id. Therefore, pursuant to the provisions of § 627.409(2) of the Florida Insurance Code, we hold that American Centennial is precluded from denying coverage to Windward solely because Windward failed to notify them of the vessel’s location. American Centennial urges that § 627.409(2) does not apply because the insurance policy was not delivered or issued for delivery in Florida. American Centennial points out that § 627.401(2) of the Florida Insurance Code states that the provisions of the Insurance Code (including § 627.409(2)) do not apply to “policies or contracts not issued for delivery in this state nor delivered in this state.... ” Contrary to American Centennial’s assertion that the policy was delivered in New York, the evidence in the record indicates that the cover letter — which the district court found (and the parties do not contest) constitutes the entire insurance agreement among the parties — was both issued for delivery to Florida and was actually delivered in Florida. At trial, Windward’s president testified that the cover letter was mailed to Windward in Florida. Moreover, the inside address typed on the cover letter indicates that it was issued for delivery in Florida. The inside address indicates that the cover letter was sent to: Mr. Bestwina Windward Traders, Ltd. c/o Harrington & Co. Attn: Richard F. Ralph, Jr. P.O. Box 13028 Port Everglades, Florida 33316 American Centennial has not directed our attention to any other facts in the record which indicate that the policy was not delivered in Florida. Thus, it is clear to us that the policy was both issued for delivery in Florida and was actually delivered to Florida. Nevertheless, American Centennial asserts that the parties’ intent, evidenced by the New York Suable Clause referenced in the cover letter, was that the policy was issued for delivery and actually delivered in New York City. The New York Suable Clause provides, in relevant part: The place of physical and actual delivery and delivery of this policy is the City of New York. Nevertheless, at the option of the assured as between the assured and the assurers the place of issue and delivery of the policy shall be considered the City of New York and all matters arising hereunder shall be determined in accordance with American law and practice. Any suit hereon may be brought against these insurers in any court in the state of New York. The clause is a printed form, except that in the first sentence quoted above, a blank is provided for the name of the actual place of delivery to be inserted. In the copy of the New York Suable Clause presented as evidence at trial, “New York” had been inserted in this blank. Apparently, the New York Suable Clause typically is used when a policy which insures American interests is actually issued and delivered in a foreign city, typically London. The clause allows the assured party (i.e., the Americans) to bring suit in American courts and to have American law apply in the event litigation against the (typically foreign) insurers becomes necessary. Assuming that the clause retains any useful meaning in the circumstances of this case, we hold that the parties’ stipulation evidenced therein that the policy was actually delivered and issued to be delivered in New York does not override the undisputed actual evidence in this case that the cover letter (the only policy in the case) was in fact issued for delivery and delivered to Windward in Florida. Consequently, with respect to the application of § 627.401(2), which limits the application of the Florida Insurance Code to policies issued for delivery in or actually delivered in Florida, we hold that the parties cannot contractually stipulate against the actual facts that occur in the case. In other words, the parties cannot stipulate that the place of delivery and issue of the policy is different from what it actually was. American Centennial also challenges the award of $22,000 attorney’s fees to Windward for the same reason that it challenged the application of § 627.409(2), namely that because of the New York Suable Clause, the policy was not issued for delivery or delivered in Florida. Section 627.428 of the Florida Insurance Code allows an insured to recover attorney’s fees from its insurer if it successfully litigates a claim against the insurer. However, the attorney fee statute applies only to policies issued for delivery or delivered in Florida, pursuant to § 627.401(2), the statute addressed above. As we held in the above discussion, the policy in this case was both issued for delivery and delivered to Windward in Florida. Therefore, we affirm the attorney fee award. B. James Windward contends that James failed to procure and maintain the insurance coverage by negligently failing to inform the underwriters of the vessel’s location. In light of our above holding that the vessel was insured when it sank, James fulfilled its alleged duty to procure and maintain the requested insurance. We therefore affirm the district court’s judgment in favor of James. C. Kininmonth Windward asserted that Kininmonth acted as the agent for an undisclosed principal — the British market — and therefore is liable for its principal’s share of the coverage. The district court held that Kininmonth was not an agent of the British underwriters and that even if it were, it adequately disclosed their identities in the cover letters it sent to James, Windward’s agent. We agree with the district court’s conclusion that Kininmonth adequately identified the insurers in the cover letters it sent to James and that because James was Windward’s agent, Windward had constructive notice of these identities. We therefore affirm the district court’s judgment in favor of Kininmonth. AFFIRMED. . Windward purchased the vessel in the summer of 1979. . James’ primary defense at trial was that Windward had not informed it of the vessel’s location. The district court found that Windward notified James when it requested renewal of the insurance that the vessel was outside of Caribbean waters. James does not contest this finding on appeal. . The parties stipulated that Florida substantive law applied. . We therefore express no opinion with respect to the district court’s conclusion that the claims conflicted and that the cover letter held-covered clause controlled. . It might be argued that a breach of the trading (locality) warranty — e.g. operating the vessel off the coast of Portugal, rather than in Caribbean waters — may have "increased the hazard by any means within the control of [Windward].” Section 627.409(2). However, coverage was denied solely because Windward failed to notify the underwriters of the vessel’s location; it was not denied because the vessel was outside the Caribbean. Moreover, under the instant policy, a breach of the locality warranty would not have been a valid reason to deny coverage because the policy stated that the vessel was held covered if it breached the locality warranty, provided that the proper notification was given to the underwriters (and any additional premium assessed was paid). Thus, even if in theory a breach of a trading warranty would be a valid reason under Florida law for a marine insurer to deny coverage, it would not be a valid reason in this case given the express terms of the insuring agreement (i.e., the cover letter and referenced AIH Clauses). . For a thorough discussion of the New York Suable Clause, see Thebes Shipping, Inc. v. Assicurazioni Ausonia Spa, 599 F.Supp. 405, 422-25 (S.D.N.Y.1984). The district court in that case explained that "the policies are on forms used by the London insurance industry and, presumably in order to make insurance more saleable to large American customers, these policies enable an insured not only to sue the insurer in the United States but also (at the option of the assured) to have American law applied.” Id. at 422. . In its initial brief in this case, American Centennial relied entirely upon its New York Suable Clause argument. In its reply brief, American Centennial again relied primarily on the New York Suable Clause argument, but added in a single sentence that the policy itself, under the actual facts of the case, was delivered to James in New York. Apparently, although American Centennial does not state anything further with respect to its claim that the policy was actually delivered in New York, American Centennial is referring to the actual insurance policy which it drew up and delivered at a later date to James. However, even if that later policy actually was delivered to James in New York, the district court found that the cover letter constituted the entire insurance agreement between the parties, and American Centennial has not contested this finding on appeal. In fact, it expressly stated that it agreed with the district court that the cover letter was the only insurance agreement among the parties. Thus, American Centennial’s single sentence referring to actual delivery of the policy in New York is merely conclusory and is contrary to the undisputed record evidence. Moreover, • even assuming arguendo that American Centennial actually did deliver some sort of insurance policy to James in New York, it remains true that the cover letter, which was the insuring agreement, was sent to Windward in Florida. Under Florida law, it is clear that where the actual insurance policy is delivered outside of the state, but some evidence of insurance (such as an insurance certificate) is delivered to the insured who resides in Florida, the policy is held to have been delivered in Florida for purposes of the Florida insurance statutes. See East Coast Ins. Co. v. Cooper, 415 So.2d 1323, 1325 (Fla.App.1982). . The parties stipulated as to the amount of the attorney’s fees and this is not an issue on appeal. . We assume arguendo, but expressly do not decide, that the undisclosed principal theory of liability could have been applied if Kininmonth had failed to identify its principals, but we note that Windward never labored under any misunderstanding that it was dealing directly with Kininmonth as a principal. Windward was at all times aware that Kininmonth was representing London underwriters. Also, we do not address the propriety of the district court’s conclusion that Kininmonth was an agent solely of Windward because even if Kininmonth was the underwriters' agent, it adequately disclosed their identity.

FLOYD R. GIBSON, Senior Circuit Judge. Appellants, two students in the Pea Ridge School District and their parents, appeal the order of the district court granting summary judgment to the Pea Ridge School District, employees of the school district, and members of the school board in this ease involving the administration of the school district’s corporal punishment and in-school suspension policies. I. BACKGROUND On February 20, 1986, Daniel Wise, a sixth grade student, was playing “dodge ball” with six other boys. The school coach, Coach Larry Walker, had previously told the boys not to play the game on two separate occasions and when he saw them continuing to play the game he required the boys to sit out for the remainder of the physical education class. After class Coach Walker gave each of the boys two “licks” on the buttocks with a wooden paddle. The paddle was approximately one-half inch thick, three inches wide, and twenty-two inches long. Corporal punishment is authorized by the school district’s policies and Coach Walker complied with them by administering the punishment in the presence of two witnesses. After school, Daniel’s father took Daniel to see a doctor. The doctor did not treat Daniel but suggested that he take Tylenol for any pain. Daniel developed bruises on his buttocks as a result of the paddling. Daniel’s father also filed a complaint with the local police department stating that the punishment administered by Coach Walker was excessive. The police investigated the complaint but apparently no criminal charges were filed. The other school action challenged in this appeal involves a form of in-school suspension called the Special Assignments Class (SAC). Michael Decker, also a student in the Pea Ridge School District, was placed in the SAC classroom for three days because he was tardy seven times. Michael is a seventh grade special education student who has a reading disorder. The Special Education Committee determined that the school district’s disciplinary policies would not adversely affect Michael’s education. This determination was made with special reference to the school district’s in-school suspension policies. The description of the SAC classroom given by the appellants gives one the impression that students are disciplined by placing them in an unsupervised cubicle or storage closet. In fact, the SAC classroom is quite roomy, providing thirty-four square feet per child — the minimum recommended under Arkansas law is thirty square feet per child. The SAC classroom contains eight study carrels, a teacher’s desk, windows, and is located next to the restroom. SAC students are allowed three regularly scheduled restroom breaks throughout the day and at other times students are allowed to visit the restroom after getting permission from the supervising SAC teacher. Michael stated that he has never asked for permission to use the restroom and had his request denied. II. DISCUSSION We begin our analysis by noting that the district court decided this case on summary judgment. When reviewing a grant of summary judgment this court is bound by the same legal standards that bound the district court. First, we must consider all of the facts in the light most favorable to the nonmoving parties. Second, we must reverse unless we determine that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Portis v. Folk Constr. Co., 694 F.2d 520, 522 (8th Cir.1982). We have carefully reviewed the entire record in this case and we do not believe that there are any genuine issues of material fact that would preclude summary judgment. Further, we believe that the school district is entitled to judgment as a matter of law because Daniel and Michael have failed to establish a violation of their substantive due process rights guaranteed by the Fourteenth Amendment. Appellants have submitted several affidavits by nonparties that discuss the manner in which other students were cor-porally punished and other methods of in-school suspension. We do not believe that any of the evidence regarding the school’s corporal punishment and in-school suspension policies and their administration with respect to nonparties is properly before this court. Daniel cannot use prior instances of alleged excessive corporal punishment in order to bootstrap his claim into a constitutional violation. His claim must rise or fall on its own merits. The same is true with respect to the school district’s in-school suspension policies. Michael presents evidence suggesting that other students were placed in cubicles and storage closets, yet he does not allege that he was subjected to any form of in-school suspension other than the SAC classroom. Accordingly, in reviewing the evidence that was before the district court we have only considered that evidence which specifically relates to Daniel and Michael. If appellants had proved a violation of their constitutional rights then the extraneous evidence relating to the school’s policies may have been properly admitted to show a custom or practice on the part of the school district in order to hold it liable. But since appellants’ rights were not violated this extraneous evidence is not properly before this court. This was noted by the district court when it stated: [Affidavits [of nonparties] cannot be used to bypass the requirement that the plaintiffs themselves must have suffered constitutional deprivations at the hands of the defendants. Had the plaintiffs themselves been able to withstand a summary judgment motion, such evidence may have proved helpful to the plaintiffs in establishing the “policy” or “custom” alleged. 675 F.Supp. at 1527. A. Corporal Punishment Daniel Wise argues that his substantive due process rights guaranteed under the Fourteenth Amendment were violated when Coach Walker used corporal punishment to discipline him. The undisputed facts are that Coach Walker gave Daniel two licks with a paddle in the presence of two witnesses. The paddling was given after two previous warnings failed to deter Daniel and the other boys from misbehaving. After the paddling Daniel’s buttocks became reddened and slightly bruised. We do not believe that these facts rise to the level of a substantive due process violation. In Metzger v. Osbeck, 841 F.2d 518, 520 (3rd Cir.1988), the Third Circuit noted that “[a] decision to discipline a student, if accomplished through excessive force and appreciable physical pain, may constitute an invasion of the child’s Fifth Amendment liberty interest in his personal security and a violation of substantive due process prohibited by the Fourteenth Amendment.” See also Garcia, 817 F.2d at 653; Woodard v. Los Fresnos Indep. School District, 732 F.2d 1243, 1246 (5th Cir.1984); Hall v. Tawney, 621 F.2d 607, 611 (4th Cir.1980); cf. Ingraham, 430 U.S. at 673-74, 97 S.Ct. at 1413-14. We agree that at some point the administration of corporal punishment may violate a student’s liberty interest in his personal security and substantive due process rights, however, we do not believe that the conduct in the instant case even comes close to that point. We believe that a substantive due process claim in the context of disciplinary corporal punishment is to be considered under the following test: 1) the need for the application of corporal punishment; 2) the relationship between the need and the amount of punishment administered; 3) the extent of injury inflicted; and 4) whether the punishment was administered in a good faith effort to maintain discipline or maliciously and sadistically for the very purpose of causing harm. This circuit has applied a similar test in the analogous context of police brutality cases. See Davis v. Forrest, 768 F.2d 257, 258 (8th Cir.1985). See also Hall, 621 F.2d at 613 (using police brutality analysis in context of disciplinary corporal punishment in public schools). Applying this test, we do not believe that Daniel’s substantive due process rights were violated. Coach Walker’s use of corporal punishment was not at all unreasonable in light of the circumstances. Daniel and the other boys were verbally warned to stop playing dodge ball prior to the administration of the punishment yet the boys did not heed the Coach’s warning. The relationship between the need to use force and the amount of force used was also reasonable under the circumstances. Daniel only received two licks for his mischevious behavior and while the punishment did cause his buttocks to redden and resulted in some discomfort we do not believe that the force was excessive or administered for improper reasons. Taking the facts in the light most favorable to Daniel we remain convinced that Coach Walker administered the punishment in a good faith effort to maintain discipline in the gymnasium and not for the malicious or sadistic purpose of causing harm. This is highlighted by the fact that Coach Walker administered the punishment at the conclusion of his class—allowing time for the boys to reflect on their behavior and providing a period of time to cool off before punishing the boys. The punishment was also administered uniformly to all of the boys involved in the dodge ball game. Finally, Coach Walker punished the boys in the presence of two witnesses in compliance with school district policy. Moreover, under Arkansas law educators have a common law privilege to administer disciplinary corporal punishment. Berry v. Arnold School District, 199 Ark. 1118, 137 S.W.2d 256, 259 (1940); Bramlet v. Wilson, 495 F.2d 714, 718 (8th Cir.1974) (Mehaffy, C.J., dissenting). Even if the corporal punishment is excessive and beyond the common law privilege accorded school teachers it does not necessarily follow that the student’s substantive due process rights have been violated. Cf. Woodard, 732 F.2d at 1244 (“This [corporal punishment] was at most a tort for which state courts afford relief.”). This court noted in Rubek v. Barnhart, 814 F.2d 1283, 1285 (8th Cir.1987), that “it is well established that not every violation of state tort or criminal assault laws committed by a state official results in a constitutional violation cognizable under section 1983.” Something more is required to find a violation of the student’s substantive due process rights. Minor discomfort and hurt feelings do not make a federal case. The conduct must be shocking to the conscience and amount to a severe invasion of the student’s personal security and autonomy. The conduct of Coach Walker in this case does not rise to this level. Ordinarily the question of whether the force used in administering disciplinary corporal punishment is excessive is a question properly resolved by a trier of fact and thus not properly determined on a motion for summary judgment. However, based on our review of the affidavits, agency reports, and color photographs of Daniel taken the day the punishment was administered, we believe that no reasonable trier of fact could conclude that the force used in this case was excessive and beyond that which is permissible at common law. B. In-school Suspension The final issue raised in this appeal involves Michael Decker’s placement in the SAC classroom for three days. Michael argues that since he is a special education student his substantive due process rights were violated when he was denied access to his special education teacher and resource materials. Michael also challenges his placement in the SAC classroom because of its physical size and the manner in which the classroom is administered. Michael argues that the SAC classroom is often unsupervised and students are denied access to the restroom. Our research has not turned up a single decision in any of the Federal Courts of Appeal that addresses a substantive due process challenge to a student’s placement in an in-school suspension program. There are a few district court cases that have been reported that provide some guidance. See Dickens v. Johnson County Board of Educ., 661 F.Supp. 155, 158 (E.D.Tenn.1987) (placing educationally and emotionally handicapped student in a “timeout box”, a form of isolation, did not violate his substantive due process rights); Fenton v. Stear, 423 F.Supp. 767 (W.D.Pa.1976). However, none of the cases has sustained a substantive due process claim in this context. Likewise, we do not believe that Michael sustained any violation of his substantive due process rights when he was placed in the SAC classroom. Contrary to Michael’s description of the SAC classroom which gives the impression that the room is a broom closet, the room is actually quite spacious — providing thirty-four square feet per student. The room has good lighting as well as several windows. Michael’s characterization of the room is reminiscent of the conditions that existed in many foster homes during the turn of the century. Such is not the case in the SAC classroom. The fact that Michael did not have ready-access to his special education teacher and resources is also of no consequence. The facts reflect that the Special Education Committee determined that Michael would not be adversely affected by being placed in the SAC classroom. Further, the record reflects that Michael did not fall behind in his studies as a result of his SAC placement. Michael was given all of his regular class assignments and completed them while in the SAC classroom. The record also does not support Michael’s claim that he was denied access to the restroom. In his deposition Michael testified that he was allowed to use the restroom in the morning, during lunch, and in the afternoon. He also testified that he was never denied access to the restroom. The SAC program furthers the school district's legitimate interest in maintaining order and discipline in its schools and is rationally related to these legitimate interests. Cf. Mitchell v. Board of Trustees, 625 F.2d 660, 665 (5th Cir.1980) (“Because the rule and the punishment for violating the rule clearly are rationally related to the goal of providing a safe environment in which children can learn, it comports with substantive due process.”). Under these facts we believe that Michael’s assertion that his substantive due process rights have been violated is without merit. Finally, we note that our decision is consistent with the Supreme Court’s decisions which defer to school administrators in matters such as discipline and maintaining order in the schools. See, e.g., Hazelwood School District v. Kuhlmeier, — U.S. -, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988); Ingraham, 430 U.S. at 682, 97 S.Ct. at 1418. III. CONCLUSION We conclude that the district court properly granted summary judgment in this case because the facts, when viewed in the light most favorable to Daniel and Michael, fail to support substantive due process claims. The disciplinary corporal punishment involved in this case does not even approach that which is required to prove a substantive due process violation. The claim that Michael’s substantive due process rights were violated when he was placed in the school’s in-school suspension program is without merit. Accordingly, we affirm the judgment of the district court. . The Honorable H. Franklin Waters, Chief United States District Judge for the Western District of Arkansas. The district court’s opinion is published at 675 F.Supp. 1524 (W.D.Ark.1987). . The dimensions of the paddle used in the instant case are strikingly similar to those of the paddle involved in the Supreme Court’s Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) decision. See id. at 656, 97 S.Ct. at 1405 (“The authorized punishment consisted of paddling the recalcitrant student on the buttocks with a flat wooden paddle measuring less than two feet long, three to four inches wide, and about one-half inch thick.”). . The appellants do not challenge the use of disciplinary corporal punishment or the SAC classroom on procedural due process grounds. Such a claim would be without merit. In Ingraham, the Supreme Court determined that corporal punishment such as that involved in this case does not violate procedural due process. Ingraham, 430 U.S. at 682, 97 S.Ct. at 1418 ("We conclude that the Due Process Clause does not require notice and a hearing prior to the imposition of corporal punishment in the public schools, as that practice is authorized and limited by the common law.”) (footnote omitted). Further, the record reflects that the school principal attempted to notify Daniel’s parents that corporal punishment had been used to discipline Daniel. With respect to the school district’s in-school suspension policy, we note that the Supreme Court in Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975), in a divided 5-4 decision held that students facing expulsion or suspension from public school have property and liberty interests that qualify for protection under the due process clause. We do not believe, however, that the Goss decision requires adherence to the strictures of procedural due process in the context of a temporary in-school suspension. See, e.g., Hayes v. Unified School Dist. No. 377, 669 F.Supp. 1519, 1528 (D.Kan.1987) (in-school suspension of up to five days by placing special education student in three foot by five foot room did not violate the procedural due process rights of special education student). In-school suspension does not exclude the student from school and consequently a student’s property interest in a public education is not implicated. Furthermore, the interference with the student’s liberty or property interests is de minimis and thus due process is not implicated. Cf. Goss, 419 U.S. at 576, 95 S.Ct. at 737. . Daniel suggests that the evidence concerning unrelated instances of excessive corporal punishment is admissible to show Coach Walker's malicious intent when he paddled Daniel. See, e.g., Garcia v. Miera, 817 F.2d 650, 655 n. 7 (10th Cir.1987) (test for determining whether student’s substantive due process rights have been violated through use of corporal punishment requires an examination of the subjective intent of the one administering the punishment), cert. denied, — U.S. -, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). We nevertheless believe that as long as the punishment was not excessive as a matter of law and was a reasonable response to the student’s misconduct the intent of the one who administers the punishment is irrelevant. . In his affidavit Daniel states that he and the other boys sat out the rest of the class for 30 to 40 minutes before Coach Walker punished them. . The photographs were taken four to five hours after Daniel was paddled. . Michael also argues that the SAC program is in violation of the Program Standards and Eligibility Criteria for Special Education established by the Arkansas Department of Education. These matters, however, are not properly before this court. Nowhere in the appellant’s complaint does it mention the Program Standards and Eligibility Criteria nor are they a part of the record in this case. The district court was not presented with the arguments that are now made for the first time on appeal. Accordingly all references to the Program Standards and Eligibility Criteria in the appellant’s brief are stricken and this court will only address the question that was presented to the district court. That question is whether Michael’s substantive due process rights were violated when he was placed in the SAC classroom.

HOLLOWAY, Chief Judge. The Equal Employment Opportunity Commission (EEOC) brought this suit against Cargill, Inc., alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and seeking injunctive and other relief. Specifically the EEOC claimed that Cargill maintained a group life insurance program that unlawfully discriminated by denying benefits to employees age 65 and over. Both parties moved for summary judgment. The district court granted Cargill’s motion and denied the EEOC’s motion, holding that Cargill’s policy came within the exception in § 4(f)(2) of the Act, 29 U.S.C. § 623(f)(2). The EEOC appeals, and the sole issue is whether Cargill’s insurance program violates the ADEA. We affirm. I The critical facts are undisputed. Cargill maintains a “Group Life Insurance Program” which provides several life and disability insurance benefits to Cargill employees. Under Cargill’s program, an employee has a life insurance death benefit in a sum certain, payable to a designated beneficiary upon the employee’s death. If an employee under age 60 becomes permanently and totally disabled, he or she is entitled to receive a benefit equal to the death benefit proceeds, paid out in monthly installments over a period of five or ten years. However, employees age 60 and over are treated differently; they are not eligible to receive this disability benefit. Cargill’s program was instituted 13 years prior to the passage of the ADEA in 1967 and has been amended on several occasions since that time. In its complaint the EEOC alleged that Cargill’s plan violated the ADEA because it treated employees age 60 and over differently than younger employees. Cargill answered that its plan was instituted before the ADEA was enacted and was therefore exempt from the Act. In granting summary judgment to Cargill, the district court relied on United Airlines, Inc. v. McMann, 434 U.S. 192, 98 S.Ct. 444, 54 L.Ed.2d 402 (1977), which held that forced retirement plans predating the ADEA were per se exempt from the Act. The EEOC contends that Congress has overruled McMann and that under current ADEA provisions, Car-gill was not entitled to summary judgment because evidence was not presented to justify the discriminatory effects of the Car-gill program. II We review the grant of summary judgment de novo. EEOC v. County of Orange, 837 F.2d 420, 421 (9th Cir.1988). Viewing the record in the light most favorable to the non-moving party, we must determine whether there are any genuine issues of material fact and whether the movant was entitled to judgment as a matter of law so as to justify a summary judgment under Fed.R.Civ.P. 56. The ADEA broadly prohibits arbitrary age-based discrimination in the workplace. The Act declares it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). One exception to this general prohibition is that an employer may “observe the terms of ... any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter ...” 29 U.S.C. § 623(f)(2). On its face, Cargill’s life insurance program appears to violate the ADEA’s general prohibition. However, Cargill’s program is exempt from the ADEA if it meets four criteria: 1) it must be the type of “plan” covered by the section; 2) it must be “bona fide” in that it exists and pays substantial benefits; 3) Cargill’s action must be in observance of the plan; and 4) the plan must not be a subterfuge to evade the purposes of the Act. County of Orange, 837 F.2d at 421-22. Only the fourth criterion is in dispute here—whether the program is a subterfuge to evade the purposes of the ADEA. In dealing with this question, the Fifth Circuit expressed the view that because a plan was effectuated before enactment of the ADEA, any notion that the plan was adopted as a subterfuge for evasion was eliminated. Brennan v. Taft Broadcasting Co., 500 F.2d 212, 215 (5th Cir.1974). The Fourth Circuit took the position that to avail itself of the exemption of § 4(f)(2) for a pre-Act plan with an involuntary retire ment provision, the employer had to demonstrate the plan was not being maintained as a subterfuge. McMann v. United Airlines, Inc., 542 F.2d 217, 221 (4th Cir.1976), rev’d, 434 U.S. 192, 98 S.Ct. 444, 54 L.Ed.2d 402 (1977). The grounds of the Supreme Court’s reversal are discussed below. The histories of both McMann and the subsequent statutory amendments are important. In 1977 Congress was considering an amendment to the 4(f)(2) exception to the ADEA. The legislative comments accompanying the proposed amendment indicate Congress was aware of the inter-circuit conflict, and approved of the Fourth Circuit’s position that § 4(f)(2) did not permit mandatory retirement pursuant to a collective bargaining agreement or pension plan. The Report also expressed disagreement with the Brennan opinion’s view that a pre-Act plan could not be a subterfuge if operative before the effective date of the Act. S.Rep. No. 95-493, 95th Cong., 2d Sess. 10, reprinted in [1978] U.S.Code Cong. & Admin.News 504, 513. While the amendment to Section 4(f)(2) was still being considered, the Supreme Court resolved the inter-circuit conflict by reversing the Fourth Circuit’s McMann decision. United Airlines, Inc. v. McMann, 434 U.S. 192, 98 S.Ct. 444, 54 L.Ed.2d 402 (1977). The Court held: 1) § 4(f)(2) permitted involuntary retirement before age 65 under a bona fide employee benefit plan, id. 434 U.S. at 198, 98 S.Ct. at 448; and 2) a plan established prior to the enactment of the ADEA could not constitute a subterfuge, id. 434 U.S. at 203, 98 S.Ct. at 450. In reversing the Fourth Circuit’s McMann decision, the Court stated: "... [W]e find nothing to indicate Congress intended wholesale invalidation of retirement plans instituted in good faith before [the passage of the Act], or intended to require employers to bear the burden of showing a business or economic purpose to justify bona fide pre-exist-ing plans as the Fourth Circuit concluded.... [A] plan established in 1941, if bona fide, as is conceded here, cannot be a subterfuge to evade an Act passed 26 years later.... We reject any such per se rule requiring an employer to show an economic or business purpose in order to satisfy the subterfuge language of the Act.” 434 U.S. at 203, 98 S.Ct. at 450. A few months after the Court decided McMann, Congress passed the proposed amendment § 4(f)(2). The amendment added the language underlined below and § 4(f)(2) now provides that an employer may observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual, and no such seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title because of the age of such individual.... 92 Stat. 189 (approved April 6, 1978), 29 U.S.C. § 623(f)(2) (1978). The Conference Committee Report accompanying the 1978 amendment indicated legislative dissatisfaction with the Supreme Court’s McMann opinion by this statement: In McMann v. United Airlines, [434 U.S. 192] 98 S.Ct. 244 [54 L.Ed.2d 402] (1977), the Supreme Court held to the contrary, reversing a decision by the Fourth Circuit Court of Appeals, 542 F.2d 217 (1976). The conferees specifically disagree with the Supreme Court’s holding and reasoning in that case. Plan provisions in effect prior to the date of enactment are not exempt under section 4(2)(f) by virtue of the fact they antedate the act or these amendments. H.Conf.Rep. No. 95-950, 95th Cong., 2nd Sess. 8, reprinted in [1978] U.S.Code Cong. & Admin.News, 528, 529. Some courts have said that the passage of the amendment to § 4(f)(2) overruled McMann’s holding regarding forced retirement plans. See EEOC v. Chrysler Corp., 733 F.2d 1183, 1185 (6th Cir.1984); EEOC v. Borden’s Inc., 724 F.2d 1390, 1395 n. 4 (9th Cir.1984); EEOC v. Maine, 644 F.Supp. 223, 226 (D.Me.1986), aff'd mem., 823 F.2d 542 (1st Cir.1987). However, the EEOC argues that the amendment overruled McMann in its entirety, including its view on the interpretation of the subterfuge provision in § 4(f)(2). The EEOC therefore asserts that Cargill’s program is not exempt from the ADEA and that Car-gill, as a party seeking to invoke the exception to the general provision, should have been required to present economic or other evidence to show that its plan was legitimate and not a subterfuge. We disagree with the EEOC’s basic premise that the 1978 amendment overruled McMann’s interpretation of the subterfuge provision in § 4(f)(2). We must agree with the Commission that the concluding sentence quoted above from the Conference Committee Report lends support to the Commission’s position on the construction of § 4(f)(2). Moreover, legislative history is not to be ignored even though we feel “the legislative intent is clearly manifested in the language of the statute itself.” Miller v. Commissioner, 836 F.2d 1274, 1282 (10th Cir.1988) (quoting Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 9-10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976)). Nevertheless the language of the statute must be the primary source of any interpretation, Miller, 836 F.2d at 1283, and here the 1978 amendment of § 4(f)(2) was specific in addressing only involuntary retirement provisions. Hence we are not persuaded that the broad language in the sentence of the Conference Committee Report supports the result urged by the Commission. Three cases have considered and rejected the EEOC’s position. EEOC v. County of Orange, 837 F.2d 420, 422 (9th Cir.1988); EEOC v. Maine, 644 F.Supp. 223, 226-27 (D.Me.1986), aff'd mem., 823 F.2d 542 (1st Cir.1987); International Bhd. of Elec. Workers, Local 1439 v. Union Elec. Co., 585 F.Supp. 261, 264 (E.D.Mo.1984), aff'd, 761 F.2d 1257 (8th Cir.1985). We are persuaded by the Ninth Circuit’s reasoning in County of Orange: Despite this broad language in the legislative history, the 1978 amendment to section 4(2)(f) only dealt with involuntary retirement provisions. Congress could have easily invalidated McMann entirely by altering the definition of subterfuge or by adding a requirement that discriminatory plans be justified by cost considerations. We presume that Congress adopted McMann’s definition when it reenacted 4(2)(f) without amending the subterfuge language. Accord Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978); Ward v. Commissioner, 784 F.2d 1424, 1430 (9th Cir.1986). 837 F.2d at 422; see EEOC v. Maine, 644 F.Supp. at 226; International Bhd., 585 F.Supp. at 264; Crosland v. Charlotte Eye, Ear and Throat Hosp., 686 F.2d 208, 213 (4th Cir.1982) (dictum). We agree with these views that McMann’s interpretation of the subterfuge provision in § 4(f)(2) remains valid and that a benefit plan instituted long before the passage of the ADEA in 1967 cannot be a subterfuge to evade the Act itself. Ill It is undisputed that Cargill instituted its life insurance program over a decade before the initial enactment of the ADEA. Under McMann, the plan comes within the § 4(f)(2) exception and Cargill was not required to present evidence justifying the different treatment of older employees. The district court correctly granted sum mary judgment for Cargill and the judgment is AFFIRMED. . Cargill’s program was instituted in 1954. A 1981 amendment eliminated the disability benefit from the program. . Cargill bears the burden of establishing its defense that its program falls within the 4(f)(2) exception. See EEOC v. Westinghouse Elec. Corp., 725 F.2d 211, 223 (3d Cir.1983), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 38 (1984). . In contrast, In re Compos, 768 F.2d 1155, 1157 (10th Cir.1985), is a case in which subsequent statutory language and consistent legislative history show an intent to overrule a "looser standard" of statutory interpretation in a prior Supreme Court opinion. We do not find that clear pattern here where the statutory change dealt only with involuntary retirement provisions. . Although Cargill’s plan has been amended since 1967, the EEOC does not claim these amendments relate to the challenged provisions. The amendments do not convert the plan into a subterfuge. See County of Orange, 837 F.2d at 423; accord EEOC v. Home Ins. Co., 672 F.2d 252, 259 (2d Cir.1982) (employer cannot rely on the fact that its plan predated the ADEA when discriminatory provisions were adopted after the ADEA was enacted).

BEAM, Circuit Judge. EMRO Marketing Company (EMRO) appeals from a final judgment entered in the District Court for the Eastern District of Missouri terminating a lease between EMRO, as lessee, and William Niles Plem-mons (Plemmons), as lessor, due to the breach by EMRO of an implied covenant of continuous operation. For reversal, EMRO argues the district court erred in (1) implying a covenant of continuous operation, and (2) refusing to excuse EMRO’s non-performance of the implied covenant due to provisions of the Bankruptcy Code. For the reasons discussed below, we affirm. BACKGROUND This appeal involves a suit by EMRO, as lessee, for a declaratory judgment and in-junctive relief regarding the status of a lease of real property. Plemmons owns the property in question, which is located in St. James, Missouri. Greta L. Plemmons, his sister and predecessor in interest, entered into a lease agreement concerning the property dated December 13,1966, with EMRO’s predecessor in interest, Nickerson & Nickerson, Inc. (Nickerson). The lease provides for a primary lease term to and including June 1, 1987, and thereafter, at lessee’s option, for six successive renewal lease periods of six years each. The lease also grants the lessee an option to purchase the property for $30,000.00. The original lessee, Nickerson, intended to use the premises to operate a Nickerson Farms store. The “use” clause of the lease sets forth this intention: The leased premises are to be used as a site for a Nickerson Farms Store for the sale of food, gifts, candy, petroleum products and other merchandise customarily handled by such stores; and for the conduct of any lawful business; and the Lessee is hereby given the right to sublease or underlet said premises or to assign the whole or any part of the term of this lease. The lease also provides the lessee the right to remove buildings and other property placed on the premises by the lessee. Lessee shall, without any obligation or liability whatsoever, have the right, at any time during the continuance, or within thirty days after termination of this lease, or any renewal or extension thereof, either to remove from, or leave upon, the leased premises any, all or any part or parts of any and all buildings, fixtures, equipment and other property owned by Lessee or placed on the leased premises by Lessee during the term of, or any renewal or extension of, this or any previous lease. The rental term of the lease provides: As rental for this Lease, Lessee agrees to pay One Hundred and no/100 dollars ($100.00) per month on the first day of each month in advance, to Lessor unless otherwise provided herein, and also pay gallonage rental of V2 (one-half cents) per gallon on gasoline sales made by lessee at its Nickerson Farms Store to be located on the premises * * *. Shortly after executing the lease, Nicker-son constructed a Nickerson Farms store on the premises. Nickerson later assigned the lease to EMRO, who in turn sublet the premises to o.g.y., Inc. (o.g.y.), which then operated on the premises a gas station and store-restaurant similar to the Nickerson Farms operation. O.g.y. subsequently entered bankruptcy reorganization proceedings and ceased business operations on the premises in December of 1984. Since that time EMRO has continued to pay the base monthly rental of one hundred dollars per month to Plemmons. No gallonage rental has been paid during this period, however, because no gasoline retail sales have been made on the premises. On January 14, 1985, EMRO filed a compliant in the District Court for the Northern District of Illinois alleging that o.g.y. was in default on the sub-lease and seeking to obtain possession of the premises. While that case was pending, o.g.y. filed, on September 23, 1985, a Chapter 11 petition in the Bankruptcy Court for the Northern District of Illinois. In the midst of the Illinois litigation, Plemmons, on April 1, 1986, informed EMRO that he considered EMRO to be in violation of the lease because of the failure to operate a Nickerson Farms store on the premises and the resultant failure to pay monthly gallonage rentals. EMRO then filed this action for declaratory relief to establish that no breach of the lease had occurred. Plemmons counterclaimed, seeking a declaratory judgment that the lease had been terminated and requesting possession of the premises. The district court conducted a bench trial on December 17, 1986, and entered judgment in favor of Plemmons on January 14, 1987. The district court found an implied covenant by the lessee to continue the operation of a business generating gasoline sales throughout the term of the lease. Finding a breach of this implied covenant, the district court ordered that the lease be terminated as of April 1,1986. This appeal followed. DISCUSSION We consider first EMRO’s argument that the district court erred in finding an implied covenant by the lessee to contin ue the operation of a business generating gasoline sales throughout the term of the lease. The parties agree that Missouri law must govern the resolution of this issue. We believe the district court correctly found that the provisions of this lease support an implied covenant of continuous operation. The “use” term of the lease is restrictive in nature — it expressly restricts the lessee’s use of the premises to a site for a Nickerson Farms store. Further, the price term of the lease contemplates payment, in significant part, in the form of gallonage rental, which could only be collected if such a business was operating on the premises. A reading of the contract as a whole, we believe, supports the district court’s conclusion that the parties contemplated a specific and exclusive use of the property. The lease provisions relied upon by EMRO do not alter this conclusion. The right to sublease, underlease or assign for all or part of the duration of the lease does not support the contention that continuous petroleum sales were not contemplated by the contracting parties. The case cited by EMRO, Crestwood Plaza, Inc. v. Kroger Co., 520 S.W.2d 93 (Mo.App.1974), for the proposition that a subletting provision abrogates a retail percentage as a source of rent is not apposite to this action. Assuming, for the sake of argument, the absence of the requirement in this lease that the “premises are to be used for a Nickerson Farms store for the sale of * * * petroleum products,” the key ingredient in the Crestwood Plaza analysis is “a substantial guaranteed rent.” Id. at 97. Here we do not have that. The guaranteed rent is $100.00 per month. The value of the property at the time the lease was entered into was at least $30,000.00 as determined by the parties. Even though the lessee was to pay the general and special tax assessments, $100.00 per month for a $30,000.00 commercial property cannot be considered “substantial guaranteed rent.” Likewise, the improvements removal clause is merely a severance provision which permits the lessee to remove buildings, fixtures and other improvements which would ordinarily become the property of the fee holder upon completion of the term of the lease. The contract language simply permits Nickerson or its assigns to determine whether it is economically feasible to remove the improvements or to leave them for the landowner to contend with. It is likely that every well drafted retail gasoline lease in force in America contains such a clause, intended for the purpose stated above. Its presence in this lease is not relevant to the existence of an implied covenant of continuing petroleum product sales. Simply stated, we agree with the district court that the agreement contemplated an implied covenant of petroleum product sales. The district court was correct in this analysis. The alternative contention of EMRO, that it has been precluded by bankruptcy law from fulfilling the implied cove' nant, is more problematic. Clearly, EMRO was permitted to sublease. Thus, it should not be penalized for matters beyond its control, for instance, the inability to repossess the leased premises because of bankruptcy law. See 11 U.S.C. §§ 362(a)(1), (3). EMRO had a duty, however, to move expe=. ditiously to seek to lift any stay which precluded repossession. Additionally, in this case it appears that EMRO did not effectively pursue repossession for almost seven months prior to being stayed by the bankruptcy filing. - EMRO is not entitled to cure its breach of the implied covenant after such a period of time. It may not rely upon these circumstances to support an impossibility defense in this case. CONCLUSION The decision of the district court is affirmed. . The Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri. . As noted, the lease agreement was prepared by Nickerson, EMRO's predecessor in interest. In fact, the contract consists of a printed form, l-NF-3/66, which form was probably used, with individualized insertions, for all of Nicker-son’s leased business sites. Thus, ambiguities, if any, must be construed against EMRO, as the successor of the drafter of the instrument. Keith v. Tucker, 483 S.W.2d 430, 434 (Mo.App.1972). . Apparently the subtenant business closed in November 1984 and the sublessee filed for bankruptcy on September 23, 1985. EMRO filed suit on January 14, 1985, after giving notice of breach of the sublease and an opportunity to cure. The stay was not imposed until approximately seven months later. McMILLIAN, Circuit Judge, dissenting. I respectfully dissent. In my view the district court erred in finding an implied covenant by the lessee to continue the operation of a business generating gasoline sales throughout the term of the lease. The district court based its implication of a covenant of continuous operation on two provisions in the lease: the rental provisions including a percentage of gasoline sales as rent, and the use provisions of the lease contemplating the use of the premises as the site of a Nickerson Farms store. I am unable to find support for the implied covenant in either of these lease provisions, particularly when the lease is viewed as a whole. The law in Missouri is clear that a rental provision based in part on retail sales by the lessee is insufficient to give rise to an implied covenant to engage in continuous retail activity. In Crestwood Plaza, Inc. v. Kroger Co., 520 S.W.2d 93 (Mo.Ct.App.1974), the Missouri Court of Appeals construed a percentage lease where the lessee was required to pay both a minimum fixed rent plus a percentage of its sales. The lessee wished to sublet the premises to a company that would not continue to operate a similar “retail food supermarket.” The lessor brought suit to prevent the sublease, but the Missouri Court ruled in favor of the lessee. The court reasoned that [i]n a situation where there is a percentage lease and the lessee is required to pay both a substantial guaranteed minimum rent plus a percentage of the sales, it has held that, in the absence of a provision forbidding subletting, subletting is not precluded even though a portion of the rent is computed on the basis of percentage of income. Id. at 97. The holding in Crestwood Plaza that a percentage lease does not prevent subletting to a different type of lessee reveals that such a provision, under Missouri law, does not give rise to an implied covenant of continuous consistent operation. To the contrary, where, as here, there is a not unsubstantial minimum fixed rent in addition to the percentage rent, an implied covenant of continuous operation may not be implied. Although the majority finds the fixed rent unsubstantial, I do not. “A covenant will not be implied merely because without it the contract would be unwise.” Id. at 98. The majority also points to the use provision of the lease in support of the district court’s implied covenant. This provision merely set forth the intention of the original lessee, Nickerson, to operate a Nicker-son Farms store on the premises: The leased premises are to be used as a site for a Nickerson Farms store for the sale of food, gifts, candy, petroleum products and other merchandise customarily handled by such stores; and for the conduct of any other lawful business; and the Lessee is hereby given the right to assign the whole or any part of the term of the lease. The majority reads the clause providing that the premises “are to be used as a site for a Nickerson Farms store” as restrictive — that the premises may only be used as a site for a Nickerson Farms store. The general rule, however, is that “a provision permitting a particular use ... is not to be interpreted as a single-purpose restriction,” and absent “express restrictions, a lessee is free to use the premises in any lawful manner.” Crestwood Plaza, 520 S.W.2d at 97; see also Soulway Realty Co. v. Machalek, 17 S.W.2d 682, 683 (Mo.Ct.App.1929) (“Generally speaking, it is held that a provision in a lease merely permitting a particular use of the leased premises does not amount to a restriction”). “[I]n light of the principle which gives the tenant free use, any restrictions are construed narrowly against the landlord.” Forman v. United States, 767 F.2d 875, 880 (Fed.Cir.1985). [In] the specific instance in which a lease provision sets forth the use of the property, the authorities are in agreement that such a provision, absent a clear and specific indication that the landlord intended to limit the tenant’s use of the property, is generally permissive and not restrictive. That is, it indicates that the landlord is aware of and sanctions the tenant’s intended use, but does not limit [the] tenant to that use alone. Id. Accordingly, I read the use clause of the lease as permissive — merely stating the lessor’s acquiescence to one use of the premises but not restricting the lessee to only that use. This permissive reading of the provision is supported by the fact that the lease also gives the lessee the right to remove all buildings from the premises. Because the lease gives the lessee the right not to have any structure on the premises at all, the use clause must be read as permissive rather than restrictive in order for it to be consistent with the contract as a whole. Because I do not read the use clause of the lease to restrict the lessee’s use of the premises to a Nickerson Farms store, I accordingly find no authority in that clause to imply a covenant of continuous operation. Construing the lease as a whole, I am unable under Missouri law to find any clause supporting an implied covenant of continuous operation. I would reverse the decision of the district court and remand the case with directions to enter judgment in favor of EMRO.

VAN NESS. District Judge (charging jury), said, among other things, that this was in its nature and essence, though not in its form, a penal or criminal action; and they were therefore entitled to judge both of the law and the fact; and that the enforcing act could not apply in this ease. The jury retired, and. after being out between one and two hours, agreed upon a verdict for the defendants, which was sealed up. and the next morning opened and pronounced ■ in court.

MEMORANDUM Gene Edward Lucas appeals from the 33-month sentence imposed following his jury-trial conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Lucas contends that his sentence is unreasonable because the district court failed to adequately consider the sentencing factors pursuant to 18 U.S.C. § 3553(a) and placed too much weight on his criminal history. We conclude that the district court did not commit procedural error, and that the sentence is not substantively unreasonable. See United States v. Stoterau, 524 F.3d 988, 999-1002 (9th Cir.2008). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM. This case is before us on remand from the Supreme Court of the United States. Gardebring v. Jenkins, — U.S. -, 108 S.Ct. 1306, 99 L.Ed.2d 515 (1988). The Supreme Court, reversing this Court, has decided the claim based on departmental regulations. A constitutional issue, arising under the Due Process Clause of the Fifth Amendment, remains in the case. In response to our show-cause order of July 8, 1988, the Court has received plaintiff Jenkins’s Memorandum in Opposition to a Remand With Directions to Dismiss and defendant’s Memorandum in Support of Remand With Directions to Dismiss. We are convinced that plaintiff cannot prevail on her due-process claim, and therefore remand this case to the District Court with directions to dismiss the complaint with prejudice. In Atkins v. Parker, 472 U.S. 115, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985), the Supreme Court rejected the claim that there is “a constitutional right to advance notice of [a legislative] amendment’s specific impact on [the] entitlement to food stamps before the statutory change [can] be implemented by reducing or terminating ... benefits.” Id. at 127, 105 S.Ct. at 2527. The Court’s reasoning was clear and unequivocal: The procedural component of the Due Process Clause does not “impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits.” Richardson v. Belcher, 404 U.S. 78, 81, [92 S.Ct. 254, 251, 30 L.Ed.2d 231] (1971). ... As we have frequently noted: “[A] welfare recipient is not deprived of due process when the legislature adjusts benefit levels- [T]he legislative determination provides all the process that is due.” [footnote omitted.] 472 U.S. at 129-30, 105 S.Ct. at 2529. We think that reasoning comprehends this case. Plaintiff's claim is that the Due Process Clause requires some advance notice to AFDC recipients before the State of Minnesota can implement the new lump-sum rule, which was enacted by Congress through regular legislative process. This claim is not distinguishable in any meaningful way from the claim in Atkins. It is not sufficient that plaintiff’s claim here is that the Constitution requires some notice, whereas the question in Atkins was whether the notice given was constitutionally adequate; neither argument survives the rule that the regular legislative process completely satisfies the Due Process Clause. Nor is it enough to argue, as plaintiff does here, that the effect of the lump-sum rule on plaintiff is so severe as to require a different result; the Atkins principle, as we understand it, contains no such exception. A great many federal statutes affect, with varying degrees of severity, the rights of property owners and the entitlements of welfare recipients. But under Supreme Court precedent, none of those people can complain that lack of notice of the passage of a statute denied them some procedural requirement of the Due Process Clause; their remedy lies instead in the legislative process and their elected representatives. Finally, we reject plaintiff’s argument that we should refrain from ruling on this claim and should remand it to the District Court for initial determination. The claim presents a purely legal question which we can resolve on the basis of the record before us. It would serve no useful purpose to pass the issue to the District Court, thereby probably generating another appeal, when the issue is clear and can be easily laid to rest now. The case is remanded to the District Court with directions to dismiss the complaint with prejudice. It is so ordered.

PER CURIAM: Laughing, an Indian who assaulted another Indian while on an Indian reservation, appeals the denial of his motion to dismiss Count II of his indictment for lack of jurisdiction over a charge brought in the district court under 18 U.S.C. § 924(c). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. On September 9,1986, while on an Indian reservation, Laughing entered the home of King, also an Indian, and asked for money. When King refused, Laughing produced a pistol and shot King, inflicting a life-threatening injury. Count I of Laughing’s indictment charged that, while on the Navajo Indian Reservation, Laughing, an Indian, assaulted King, also an Indian, with the intent to commit murder in violation of 18 U.S.C. § 113(a) and the Major Crimes Act, 18 U.S. C. § 1153. Count II charged that Laughing used a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Laughing unsuccessfully moved to dismiss the second count on the ground that because the offense proscribed under section 924(c) is not among the list of offenses specifically enumerated within the Major Crimes Act, 18 U.S.C. § 1153, the district court lacked jurisdiction over that charge. Subsequently, Laughing entered a guilty plea to a lesser-included offense in Count I and entered a conditional guilty plea to Count II, which allowed Laughing to appeal the denial of his motion to dismiss the disputed section 924(c) charge. On appeal, Laughing maintains that because the basis of federal jurisdiction over crimes committed in Indian country by one Indian against another Indian is the Major Crimes Act, 18 U.S.C. § 1153, and because use of a deadly weapon “in relation to any crime of violence” under section 924(c) is not one of the crimes specifically enumerated in section 1153(a), the district court lacked jurisdiction to proceed with the section 924(c) charge. The district court’s jurisdiction over a criminal offense is a question of law that we review de novo. United States v. Walczak, 783 F.2d 852, 854 (9th Cir.1986). In United States v. Goodface, 835 F.2d 1233 (8th Cir.1987), the Eighth Circuit held that “a section 924(c) prosecution is available where the underlying felony is based on sections 113(c) and 1153.” Id. at 1238. The court explicitly recognized that its previous contrary holding in United States v. Eagle, 539 F.2d 1166 (8th Cir.1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977), the principal case on which Laughing relies, was superseded by the 1976 amendments to sections 113 and 1153. Id. Goodface squarely governs the instant case. Like the defendant in Good-face, Laughing was prosecuted under section 924(c) for an underlying felony anchored in sections 113(c) and 1153. For the reasons stated in Goodface, we affirm. This holding is consistent with our prior decisions in United States v. Springfield, 829 F.2d 860 (9th Cir.1987), and United States v. Burns, 701 F.2d 840 (9th Cir.) (per curiam), cert. denied, 462 U.S. 1137, 103 S.Ct. 3123, 77 L.Ed.2d 1375 (1983). In those two cases, we affirmed the convictions of Indians for violating section 924(c), where the district court had jurisdiction over the underlying offense pursuant to section 1153. Springfield, 829 F.2d at 862-63; Burns, 701 F.2d at 841, 843. In affirming the convictions, we implicitly upheld the district court’s jurisdiction over the section 924(c) offense. As a final argument, Laughing suggests that a ruling by us that the district court had jurisdiction to convict him under section 924(c) would be anomalous because had he committed the same crime outside of the reservation, federal jurisdiction under section 924(c) would be lacking. To the extent that this is an attempt to raise an equal protection challenge, the Supreme Court has previously held that “it is of no consequence [under the equal protection clause] that the federal scheme [applicable in Indian country] differs from a state criminal code otherwise applicable within the boundaries of the State.” United States v. Antelope, 430 U.S. 641, 648-49, 97 S.Ct. 1395, 1400, 51 L.Ed.2d 701 (1977). AFFIRMED.

McKENNAN, Circuit Judge. The court below permitted the United States to prove, by the officers who made the seizure, upon what previous information they acted and from whom that information was derived, and also by their informant, what he had told them, touching the proposed illegal importation of the goods. The conversations offered to be proved occurred in the absence of the claimant, and were objected to as hearsay, and it is now urged that the proof of them ought to have been excluded upon that ground. If the claimant were the subject against which the proceeding was directed and was. therefore, necessarily a party to it, there might be force in the objection, as the reason of the rule which excludes hearsay evidence might be invoked in his favor. But he was a voluntary inter-vener, the goods themselves being the defendant and offender, if there was any of-fence, and subject to the punitive consequences of a violation of the law committed by any person in reference to them. In U. S. v. 0G1 Bales of Tobacco [Case No. 1G.297], Judge Blatchford said: “If any person does so and so, in regard to goods, they are forfeited. In all the statutes the merchandise is personated, the merchandise is called the offender; and if any person does in regard to that merchandise.—and, for the purposes of this case. I will limit it to any person lawfully connected with the merchandise,— if any person does the forbidden acts, the merchandise is forfeited. It is not like an indictment, in a criminal case, where personal guilt must be brought home to the individual, and where 'he is not responsible criminally for the acts of another; but in this case, and in all cases of this kind, the merchandise is responsible for the forbidden act of any person connected with it.” So also, said Mr. Justice Strong, in his opinion in this case: “This is not a proceeding against the importers. It is against the goods imported. They are treated as guilty.” It is plain, therefore, that if the communications to the revenue officers, proposed to be proved, were relevant to the inquiry in hand, they were not objectionable because they were made in the absence of the claimant. There was evidence to show that the goods were imported, and were removed from the vessel in violation of law, and it was necessary to determine whether a violation of law was actually intended. Was it not then pertinent to show, that what was done in reference to the goods was in pursuance of a prearranged plan; that the fact of an intended illegal importation was known to the officers before hand? And if the subsequent mode of dealing with them by the person in whose control they were accorded with the information given to the officers, as to what was proposed to be done, may not the essential illegal intent be impressed upon the goods? If an illegal act is committed, may not information communicated to an officer, within the scope of his duty, of a purpose to commit it and of the manner of committing it, although not derived directly from the wrong doer, be considered to characterize the intent with which the act was committed ? Indeed, I think,' where a seizure has been made, and the question is whether it was warrantable, information of a purpose to do an act, touching the subject of it, which is verified by the commission of the act, may properly be regarded as so connected with the act itself, as to constitute part of the res gestae, and is provable as such, in proceedings of this kind. Evidence of a kindred character was allowed in the case of U. S. v. 661 Bales of Tobacco, supra, the judge saying, “It was admissible under the decisions of the supreme court, not for the purpose of proving the body of the offence, but for the purpose of characterizing the intent with which a given act may have been done.” I do not understand the court below as having unqualifiedly instructed the jury that the burden of proof, as to fraudulent intent, was upon the claimant. The language of the judge was: “You must commence your inquiry with this proposition, that the importation of the goods was contrary to law. That much has been settled in the case in the previous trial. Then, if you are of the opinion, from the tacts shown, that Mr. Bean knew that his method of bringing in the mercandise was unlawful, the burden rests upon him to satisfy you by affirmative proof, that he did noc adopt this method for the purpose of evading the payment of duties, but for some ofher and lawful purpose, as, for instance, to save freight, or to save time in the matter of transportation. But, if you are of opinion, that he was not aware that such a mode of bringing in or unloading of the goods was contrary to law; then the government is obliged to establish by positive proof to your satisfaction, that all the steps taken by him, in the direction of their transportation, were taken with a fraudulent intent, to wit, for the purpose of getting the merchandise into the country without the paying of duties.” There is no error in this. Its obvious import is, that, if the claimant knew he was violating the law, an intent to evade the duties might fairly be imputed to him by the jury, and that hence it devolved upon him to present satisfactory counter proof that he was actuated by a lawful purpose In other words, that the presumption of fraudulent intent arising from wilful violation of the law, shifted upon the claimant the burden of proving the absence of sucn intent. This does not confound guilty knowledge with fraudulent intent, but correctly states, that an intent to evade the payment of duties and thus to defraud the government, may properly be inferred from an overt wilful violation of law, and that the duty of disproving this unfavorable inference devolved upon the claimant. No special, notice of the other errors assigned seems to me to be necessary. It is sufficient to say, that I do not think they are sustained. The judgment is affirmed.

THE COURT (nem. con.) gave the instruction. 1 Hawk. P. C. 58; 2 Hawk. P. C. 438; 2 McNally, Ev. 524.

EMMONS, Circuit Judge, concluded his charge to the jury as follows; In ordinary cases I should have submitted this cause to you without other comments. But after some consultation, I conclude to say a word or two about some of the incidents of this trial. The character of the discussions degenerated in a few instances into gross accusations and the imputation of bad motives .on the part of the officers of the government, such as I suppose, as a general rule, ought not to be tolerated in any case. The uniform courtesy during the trial of the learned counsel for the defendant, made me reluctant to interrupt what, although in my own estimation distasteful and sometimes very extravagant, I thought without a violation of duty I might suffer to proceed. What was said, too, was so interwoven with an apparent good nature and pleasantry, that, as each excess occurred, they came and went before I felt it a duty to interfere. But I desire most emphatically to announce that it must not be cited as a precedent for what in future trials, as a judge, I shall deem it right to suffer. It degrades a public trial. Neither jury, counsel, nor court feel that self-respect, nor can they maintain that condition of mind, necessary for the performance of their duties, if, by the compulsions of the law or the tol-erations of the bench, they are forced to listen, in circumstances which assume it is a legitimate part of a public trial, to an angry contest where the decorum and the proprieties of' our homes, or an ordinary business intercourse, are utterly wanting. It is disrespectful alike to jury and court for counsel on either side to assume that utterly unproved imputations, that wholesale abuse of witnesses sworn, unconnected with any criticism of' their testimony, and attacks upon absent persons who are unknown to the trial, can by any possibility aid a defendant, be he guilty or innocent It supposes the court so constituted in both its branches as to be incapable of distinguishing between what alone it is sworn to consider on the one hand, and the passionate denunciations of counsel on the-other. Although sufficiently intimated already, I take pains to repeat that although I deem the argument of the learned counsel for the defendant a clear violation of the rule I intend to enforce, still it is not so far from precedent in this and other courts as to-authorize any severity of rebuke; on the contrary, the general courtesy of the counsel, during the trial so won upon the court, that it had much to do with what it suffered during the argument. There is, however, one por tion of it I wish particularly to notice. Counsel in his zeal expressed the belief that in the universal activity- of the government assistants to oppress his client, they had actually poisoned the mind of the court, and quite clearly intimated that it was too prejudiced to sit in the trial of the cause. This, I suppose, I ought not to have permitted, and hope I may never again have cause to consider what, in such a contingency, a judge, mindful of the usefulness and power of the court, ought to do. I have concluded, however, instead of rebuking it directly here, to answer it in a mode I am certain will be more effective with the counsel and his client, and as influential as any other to teach new practitioners how in error they are when, in their zeal, they mistake an inflexible administration of the law for partiality and prejudice. To what I say, gentlemen. I ask your attention, as it has a practical application to your duties. You have before you as witnesses, men who are accomplices of the guilty participators in the offence for which the defendant is tried. This goes substantially to their credibility, and, so far as your verdict must rest upon their testimony, is worthy your consideration. Thinking it not impossible that, among the various prosecutions for offences under this law, I might be called upon to enforce its penalties; perceiving that each offence, no matter how many, even twenty in the same indictment, compelled me to inflict a prescribed punishment for each, I felt oppressed by the consequences which might, in certain instances, result. I. therefore, conferred with other able and experienced judges for some mode of mitigating the punishment. I called special attention to the peculiar condition of opinion in regard to offences against the government; that, for some unappreciable reason, although they were in fact among the most injurious and widely corrupting crimes, the fact was still beyond dispute that otherwise reputable men, those who would not steal their neighbor’s goods or forge their names, would defraud the government by false invoices, smuggling. and false stamps. I brought forward the extraordinary facts of this case as they are claimed to exist by the government, the procuration of the counterfeit stamps, the employment of so many young men who had been taught to violate the law, and so take the first steps in crime, and found that while I could not look upon the defendant as an abandoned criminal, the public would demand in such a case what I might, in view of these circumstances, think should not be inflicted. I wished it even possible to omit the imposition of a punishment like that due to the hardened criminal who, abandoning all ordinary business, lives a continuous life of lawlessness and crime. It was thought we discovered a mode which in some degree would authorize the court, without a violation of duty, to temper the administration of this same statute to the exigencies of particular cases. I assure this counsel that it was because I entertained feelings wholly at war with, nay, on the other extreme, of those he so erroneously imputed, that I so anxiously sought an interpretation of the law which would authorize a kindly and mild judgment, should an exigency occur in which I should be called on to pronounce it. And although I may have ever so full convictions in this case, either way, resulting from a careful following of the proof, from the fact that I cannot leave behind my intelligence when I ascend the bench, and the necessity of accepting here as elsewhere .conclusions which are necessary and inevitable, it is simply unenlightened to impute this necessary consequence to prejudice or hostility, any more than the same conditions should be imputed because, in view of the same facts, you, gentlemen, in the end pronounce the defendant guilty. So far forth as the judge can concede, without transparent affectation, he should do so, but while the jury are informed fully that the facts are for them, I have but little fear of doing injustice by a frank, unprejudiced rehearsal of them as they are proved, whether they defeat or sustain the prosecution or the defence. This I shall always deem it my duty to do. Whether a mild administration of this law can arrest the wrong is uncertain. I may, by and by, quite change my opinions in this regard. That it must in some way be arrested, is most certain. Its injurious consequences will not only damage every department of business in which they are perpetrated, and cruelly disappoint the just expectations of the upright and fair dealer, but by their effects in familiarizing with crime, work eonseqenees the most fatal in society. Every father who has a son must feel the danger of such influential and high-positioned tempters to crime. We may save, by good example and high teaching, our boys from the low haunts of vice and crime, but we are compelled to trust them to the leading and more important walks of business life. If they who control these stoop to the cowardly crimes of forgery and counterfeiting. and a degraded and discreditable public insists upon their decency and partial respectability, there is no safety anywhere for inexperience. The first lessons of dishonor and crime will be learned in the first teachings of the storehouse and the counting-room. Look over the vast ramifications of our revenue. See how it pervades all departments of trade, and reflect how innumerable are the occasions and how demoralizing must be the effects if leading, wealthy, influential citizens teach the whole body of their employees that perjury and fraud is justifiable, so long as its object is to avoid a public tax. And when 1 doubtfully suggest that this anomalous condition of public opinion may in the outset somewhat temper the severity of judgment, I must not be understood as insinuating that I do not most thoroughly believe that the commission of these crimes by prosperous men of wealth and position, with all the corrupting incidents which so generally attend them, are infinitely more injurious and pervading in their consequences than the comparatively trivial evil of a secret midnight burglary, committed by a few degraded, obscure, and un-infiuential thieves. And as in this case I have, so in all others I probably shall, yield to an anxiety that there shall be no escape, if, in fact, a defendant has committed a crime which, in its example and influence for evil, is exceeded by no offence of which this or any other tribunal has cognizance. [See Case No. 16,171.] The jury found defendant guilty on the first, third, fourth, fifth, and sixth counts.

STORY, Circuit Justice. It has been intimated at the bar, that the demurrer by mistake extends to the sixth count, and therefore I pass over all observations as to that count, for - it is clear that so far the demurrer cannot be sustained. And before proceeding to the principal point in controversy, it may be well to dispose of some other objections spread upon the record, as causes of special demurrer. One of these is, that there is no profert of the condition of the writing obligatory, although it is set forth in the declaration. To this it is a sufficient answer, that when a profert is made of any such instrument, the whole is before the court, and it is unnecessary to make a separate profert of the condition. If the defendant wishes oyer of the whole instrument, he may pray it; but oyer of the obligatory part is not oyer of the condition; each must be prayed for, if each is wanted. Another objection is to the want of particularity in the statement of the certificate, and in what respects it is false and fraudulent. It appears to me, that it would have been more correct to have stated, generally, that the mutilation of the instrument was occasioned by fraud and imposition prac-tised upon the collector of Bristol, leaving the special facts to be made out in evidence. And it may be, that the averment is not sufficiently pointed and exact in its present terms, at least in not stating the party, by whom the false certificate was produced. But this is the less necessary to be considered, because, if upon the merits of the more general question, the United States are entitled to relief, the court would not find any difficulty in granting leave to amend. The question therefore, to which the opinion of the court will address itself, is, whether any suit can be maintained at law upon an instrument mutilated like the present, where that mutilation has been produced by fraud and imposition, practised upon a public officer in the discharge of a public duty by a party bound by the instrument. The bonds given in the present case are the customary-bonds required by law^Act March 2, 1799, c. 128, § 75 [1 Story’s Laws, 636; 1 Stat. 680, c. 22], et seq., and particularly section 81) to be given upon the exportation of merchandise, entitled to drawback, in order to enable the party to obtain the common debenture. Certain proofs are required to be produced to the collector of the port of the fact of relanding the merchandise in a foreign country, upon the production of which the bonds may be cancelled. The law, of course, supposes the certificates and proofs to be genuine, and not fraudulent, and upon this presumption, and this only, authorises a cancellation of the bonds. If the cancellation be by mistake or fraud, the collector is acting beyond the authority confided to him by law, and his act cannot bind the government. But I should be sorry, that it should be supposed, that there is any principle applicable' to this case, which would not equally apply to suits between private citizens. Nothing is more clear than that deeds procured by fraud are void, and may be set aside on non est factum pleaded, upon due proof of the fraud (Thompson v. Rock, 4 Maule & S. 338; Skip v. Huey, 3 Atk. 91, 93; Com. Dig. “Fait,” B, 2; Shep. Touch. 60); and grants of the government are not, in this respect distinguishable from those of individuals (Com. Dig. “Grant” G, 8, 9). It would seem to follow as a natural conclusion from this doctrine, that deeds cancelled by fraud and imposition are to be considered as still existing and in full force. If a deed be avoided by fraud in its concoction, it would seem almost absurd to say, that after its legal execution it should be destroyed by fraud practised upon the obligee. The old cases proceeded upon a very narrow ground. It seems to have been held, that a material alteration of a deed by a stranger, without the privity of either obligor or obligee, avoided the deed; and by parity of reasoning the destruction or tearing off the seal either by' a stranger or by accident. Pigot’s Case, 11 Coke, 27; 1 Rolle, 39; 1 Rolle, Abr. “Fait,” X, 1-3; Perk. §§ 135, 136; and cases cited in Cutts v. U. S. [Case No. 3,522]; Com. Dig. “Fait,” F, 2; Mathewson’s Case, 5 Coke, 23; Dyer, 59, and note 12; Shep. Touch. 67. A doctrine so repugnant to common sense and justice, which inflicts on an innocent party all the losses occasioned by mistake, by accident, by the wrongful acts of third persons, or by the providence ofi Heaven, ought to have the unequivocal support of unbroken authority, before a court of law is bound to surrender its judgment to what deserves no better name than a technical quibble. It appears to me to be shaken to its very foundation in modern times; and every ease, which upholds a remedy at law, where the deed is lost by time and accident is decisive against it. The case of Read v. Brookman, 3 Term B. 151 (and see Bolton v. Bishop of Carlisle, 2 H. Bl. 259), is directly in point, and is reasoned out by Lord Kenyon with vast force and ability, upon principles of eternal justice. Mr. Justice Buller, in Master v. Miller, 4 Term B. 320, 339 (and see Waugh v. Bussell, 5 Taunt 707; Totty v. Nesbitt; and Matison v. Atkinson, cited in 3 Term E. 153, note c; Henfree v. Bromley, 6 East, 309), said, and he is a great authority, “It is not universally true, that a deed is destroyed by an alteration, or by the tearing off the seal. In Palmer, 403, a deed which had erasures in it, and from which the seal was torn, was held good, it appearing, that the seal was tom off by a little boy. So in any case, where the seal is torn off by accident, after plea pleaded, as appears by the cases quoted by the plaintiff’s counsel. And in these days I think, even if the seal were tom off before the action brought, there would be no difficulty in framing a declaration, which would obviate every doubt upon that point by stating the truth of the case. The difficulty, which arose in "the old cases, depended very much on the technical forms of pleading, applicable to deeds alone. The plaintiff made a profert of the deed under seal, which he still must do, unless he can allege a sufficient ground for excusing it When that is done, the deed or the profert must agree with that stated in the declaration, or the plaintiff fails. But the profert of a deed without a seal will not support an allegation of a deed with a seal.” There is so much sound sense and legal propriety in this doctrine, that one is persuasively urged to adopt it, and it stands supported by the authority of other cases. But however this may be, it is clear that a divulsion of the seal by the obligor himself, or by his connivance, without the assent of the obligee, does not avoid the deed. Totty v. Nesbitt, 3 Term R. 153, note c; Shep. Touch. 67. And it has been so decided by this court. Cutts v. U. S. [supra]. And X have no hesitation in declaring, that if the seal is tom off with the assent of the obligee, either by mistake, or by fraud and imposition practised • by the -obligor, it may still be declared on as a deed, making the proper averment of the facts upon the proferí, and the party will be entitled to a recovery. The case of Matison v. Atkinson, cited in a note in 3 Term R. 153, fully supports this doctrine; and if it were of the first impression, I should not hesitate to adopt it Dealing with this case, therefore, as I am bound to do according to the admitted facts, I must take it to be a case, where the obligors to the bonds have procured the destruction of the seals by the obligee, not merely by a mistake of the facts, but by gross fraud and imposition. See, also, Perrott v. Perrott, 14 East, 423. We may readily see, how this doctrine stands in equity, from what fell from Lord Hardwicke in Skip v. Huey, 3 Atk. 91, 93, whose language meets the present case in its material features. “There are many cases,” says his lordship, “where equity will set up debts extinguished at law against a surety, as well as against a principal; as where a bond is burnt or cancelled by accident or mistake, and much stronger, if a principal procure the bond to be delivered up by fraud, in such a case the court would certainly set it up, because he shall not avail himself of the. fraud of any of the debtors.” Now it appears to me clear, that the doctrine is the same at law as in equity in this respect, whenever, from the nature of its proceedings, a court of law can administer relief. And this leads me, to what has been the principal objection urged at the bar, viz. that the proper remedy in this case is in equity, and not at law. That effectual relief might be administered, in a case like the present, in equity cannot be doubted (1 Ves. 387, 392, 393. See Atkins v. Farr, 2 Eq. Cas. Abr. 247, 1 Atk. 287, pl. 155; Anon., 2 Atk. 61; Ex parte Greenway, 6 Ves. 812); and it is as certain, that until a comparatively recent period it was supposed, that the remedy was exclusively in equity. Such was certainly the supposition of Lord Hardwicke, as appears in Whitfield v. Fausset, 1 Madd. Ch. Prac. 22, 23 [1 Ves. Sr. 387]; East India Co. v. Donald, 9 Ves. 275; and something of the same lurking doubt of the jurisdiction at law yet lingers in the court of chancery. Ex parte Greenway, 6 Ves. 812; East India Co. v. Boddam, 9 Ves. 464. But whatever difficulties there may have been in the original question, it is now so firmly established, that a remedy exists at law on a bond lost by time and accident, and by parity of reasoning, on a bond destroyed or cancelled by fraud, that it is too late to disturb it. It must be admitted, that the jurisdiction in equity is in general more salutary and less, liable to abuse; .but the reasoning, that en-deavours to establish a concurrent jurisdiction at law, is extremely cogent, and impressive. Read v. Brookman, 3 Term R_ 151. I content myself therefore with holding the law' on this subject, as I find it, not meaning to doubt, that it would have been equally competent for this court to have sustained a suit for relief on the equity side of its jurisdiction. A suggestion has been thown out at the bar of the insufficiency of the breach assigned in the declaration. But it appears to me, that this objection is unfounded, for the breach is a direct negative in the very words of the condition. It is certainly good, according to the current of authorities. Heyford v. Reve, Yel. 40; Com. Dig. “Pleader,” 0, 45; Procter v. Burdet, 3 Lev. 170; Lee v. Johnson, 1 Lutw. p. 115, pl. 326-329. Leave is given to the plaintiff to amend, and to the defendant to withdraw his demurrer, as it is now too broad.

MEMORANDUM Barry Northcross Patterson, an Arizona prisoner, appeals from the district court’s dismissal of his civil rights action for failure to exhaust administrative remedies, as required under the Prison Litigation Reform Act of 1995 (“PLEA”), 42 U.S.C. § 1997e(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Patterson concedes that Ngo v. Woodford, 539 F.3d 1108 (9th Cir.2008), forecloses the argument in his opening brief that he satisfied the exhaustion requirement. As to Patterson’s claim that prison officials frustrated his ability to grieve, his conclusory pleadings and submissions are insufficient to survive a motion to dismiss for failure to exhaust administrative remedies. Patterson failed to link any alleged obstruction to his ability to grieve with the Eighth Amendment deliberate indifference claim at issue in this action. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

MEMORANDUM Yuen Ren Lin, a.k.a. Yong Rong Lin, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his third motion to reopen deportation proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen or recon sider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny in part, and dismiss in part the petition for review. The BIA properly construed Lin’s third motion to reopen as a motion to reconsider, and did not abuse its discretion in denying the motion to reconsider because the motion failed to identify any error of law or fact that would justify granting relief. See 8 C.F.R. § 1003.2(b)(1); see also Iturribarria v. INS, 321 F.3d 889, 895-96 (9th Cir.2003). Lin contends that his removal proceedings should be reopened on the basis of changed circumstances because he has married a U.S. citizen and seeks to apply for adjustment of status. However, we lack jurisdiction to review this contention because he failed to raise this issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). This court also lacks jurisdiction to review Lin’s challenge to the BIA’s denial of his second motion to reopen because the petition for review is not timely as to that order. See Andia v. Ashcroft, 359 F.3d 1181, 1183 n. 3 (9th Cir.2004) (per curiam). PETITION FOR REVIEW DENIED in part; DISMISSED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: A jury convicted Larry Donnell Frye of one count of armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (2006). The district court sentenced him to 250 months’ imprisonment, a seventy-five-month upward variance from the top of the range suggested by the Sentencing Guidelines. Frye appeals, challenging the sufficiency of the evidence and the substantive reasonableness of his sentence. Finding no merit to these challenges, we affirm. We review the district court’s decision to deny a Fed.R.Crim.P. 29 motion for judgment of acquittal de novo. United States v. Gallimore, 247 F.3d 134, 136 (4th Cir.2001). Where, as here, the motion was based on a claim of insufficient evidence, “[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Substantial evidence is evidence which “a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc). In evaluating the sufficiency of the evidence, this court does not review the credibility of the witnesses and assumes that the jury resolved all contradictions in the testimony in favor of the Government. United States v. Sun, 278 F.3d 302, 313 (4th Cir.2002). In addition, the court considers circumstantial and direct evidence, and allows the Government the benefit of all reasonable inferences from the facts proven to those sought to be established. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982). The testimony of a single witness may be sufficient to support a conviction, even if that witness is an accomplice, co-defendant, or an informer. United States v. Wilson, 115 F.3d 1185, 1189-90 (4th Cir.1997). On February 21, 2006, a masked man robbed a Wachovia Bank branch on West Cary Street in Richmond, Virginia. The robber jumped over the bank’s teller counter, demanded and grabbed money from the teller drawers, and pointed a gun at and threatened to kill bank employees. A witness walking that day on a sidewalk near the bank heard a “pop” and observed a man standing in a nearby parking lot enveloped in a cloud of red smoke and throwing money from his shirt onto the ground. The man then fled between two nearby apartment buildings. Law enforcement officials investigating the robbery recovered from the ground near the bank clothing as well as United States currency, some of which stained with red dye. DNA analysis revealed that Frye could not be eliminated as a contributor to the DNA found on the recovered clothes. The Government also presented the testimony of Lamont McCord, a convicted felon, who testified that Frye admitted to robbing the Wachovia bank and described to McCord jumping over the teller counter, grabbing money and placing it in his pants, and that upon leaving the bank, a dye packet exploded and he changed his clothes in a alleyway. McCord also testified that Frye bragged that he would “beat” the charge against him because the bank tellers could not identify him and because one of his pieces of clothing contained more than one set of DNA. Frye denied ever robbing the bank. On appeal, Frye contends that the evidence is insufficient to support his conviction because the Government failed to introduce evidence of the Wachovia bank’s status as an institution insured by the Federal Deposit Insurance Corporation (“FDIC”). He also asserts that McCord’s testimony, the only direct evidence linking him to the robbery, is incredible. To sustain a conviction for armed bank robbery under 18 U.S.C. § 2113(a), (d), the Government was required to prove that the institution from which the money was stolen was a “bank” as that term is defined in 18 U.S.C. § 2113(f). See United States v. Gallop, 838 F.2d 105, 111 (4th Cir.1988); United States v. Wingard, 522 F.2d 796, 797 (4th Cir.1975). At trial, the parties entered into the following stipulation, which was signed by counsel for Frye and counsel for the Government, read to the jury, and received into evidence without objection: Comes now the United States of America by its counsel, and [Frye] by his counsel, respectfully state and hereby stipulate the following facts are true and correct: Stipulation Number 1. On or about February 21, 2006, the Wachovia Bank at 3201 West Cary Street, Richmond, Virginia, was a bank, as that term is defined in Title 18 of the United States Code, Section 2113(f), and that the deposits therein were insured by the Federal Deposit Insurance Corporation, or FDIC. Parties further stipulate that at least $3,907.38 in U.S. currency was taken from a person in the presence of another, on this date, and at this location. The express language of the stipulation shows Frye’s agreement that the Wacho-via bank was a “bank” as that term is defined in 18 U.S.C. § 2113(f). Frye makes no attempt to invalidate the stipulation by showing, for instance, that he entered into it inadvertently or that he was not competent to make it. See United States v. Reedy, 990 F.2d 167, 169 (4th Cir.1993). By failing to dispute the stipulation’s validity, he has abandoned any basis for challenging the stipulation’s eviden-tiary value as to its stipulated elements. See id. Frye’s challenge to the sufficiency of the evidence on the basis of the credibility of witness McCord also fails because witness credibility is not subject to appellate review. See Sun, 278 F.3d at 313. As evidenced by its finding of guilt, the jury resolved any conflicts in testimony in favor of the Government and determined the Government’s witnesses to be sufficiently credible and otherwise found sufficient circumstantial and direct evidence of guilt. Our review of the record convinces us that the jury heard sufficient evidence to find Frye guilty as charged. Frye also challenges the substantive reasonableness of his sentence. After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a sentence is reviewed for reasonableness, utilizing an abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The first step in this review requires this; court to ensure that the district court committed no significant procedural error, such as improperly calculating the Guidelines range. United States v. Evans, 526 F.3d 155, 161 (4th Cir.2008). Frye claims no procedural error. This court next considers the substantive reasonableness of the sentence imposed, taking the totality of the circumstances into account. Id. at 161-62. Although this court may presume that a sentence within the Guidelines range is reasonable, it may not presume a sentence outside of the Guidelines range is unreasonable. Gall, 128 S.Ct. at 597. In reviewing a sentence outside of the Guidelines range, we must consider “whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range.” United States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.2007) (citation omitted). This court will find a sentence to be unreasonable if the sentencing court “provides an inadequate statement of reasons or relies on improper factors in imposing a sentence outside a properly calculated sentencing range.” Id. The court, however, must give due deference to the district court’s decision that the 18 U.S.C. § 3553(a) (2006) factors justify the sentence. See Gall, 128 S.Ct. at 597; Evans, 526 F.3d at 162. Even if this court would have imposed a different sentence, this fact alone will not justify vacatur of the district court’s sentence. Evans, 526 F.3d at 162. Our review of the record convinces us that the district court’s 250-month variance sentence was substantively reasonable. The district court considered the parties’ arguments and engaged in a meaningful articulation of its consideration of the 18 U.S.C. § 3553(a) factors supporting the seventy-five-month upward variance. Notably, the court thoroughly reviewed Frye’s extensive criminal history and accurately highlighted Frye’s history of assaultive and threatening behavior. Accordingly, we affirm the district court’s judgment. 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. 18 U.S.C. § 2113(f) provides: As used in this section the term "bank” means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, including a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) and (3) of section 1(b) of the International Banking Act of 1978), and any institution the deposits of which are insured by the Federal Deposit Insurance Corporation.

MEMORANDUM Plaintiff-Appellant Howard S. Wright Construction Company (Wright) appeals the district court’s dismissal of its action against the Laborer’s International Union of North America, Local Union No. 169 (Union). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts, we do not supply them here except as necessary to explain our decision. We review a district court’s legal conclusion that Plaintiffs repudiation of the agreement was not valid de novo. Laborers Health and Welfare for Northern California v. Westlake Development, 53 F.3d 979 (9th Cir.1995). The National Labor Relations Board held in John Deklewa & Sons, 282 NLRB 1375 (1987), enf. 843 F.2d 770 (3d Cir.1988), that an employer cannot repudiate a Section 8(f) prehire agreement midterm. Wright does not fit into the limited “single employee exception” to this rule, as interpreted by the Ninth Circuit, because Wright has conceded that it employed two laborers contemporaneously during the term of the contract. Laborers Health holds that in order to fit into the limited single employee exception, the employer must be “a ‘one-employee employer’ during the relevant time period.’ ” Laborers Health, 53 F.3d at 982. The district court did not err in determining that Wright’s repudiation was not valid, and dismissing the case. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . The Union asserts in its brief that we should also review the trial court’s order denying confirmation and vacating the arbitration award. The Union failed to appeal this order; it also failed to appeal or cross-appeal from the final judgment which was entered in this case. An appellee who fails to file a cross-appeal cannot attack a judgment with a view towards enlarging its own rights. Turpen v. City of Corvallis, 26 F.3d 978, 980 (9th Cir. 1994), cert. denied, 513 U.S. 963, 115 S.Ct. 426, 130 L.Ed.2d 339 (1994).

MEMORANDUM Ren Jun Chen, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review. The BIA did not abuse its discretion in denying Chen’s motion because he did not satisfy any of the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the alleged ineffective assistance was not “obvious and undisputed on the face of the record.” Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir.2004). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: David M. Kissi appeals from the district court’s order requiring him to pay a partial filing fee in accordance with 28 U.S.C. § 1915(L)(1)(A) (2006). This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Kissi seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we deny Kissi’s motion for appointment of counsel and dismiss the appeal for lack of jurisdiction. 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.

In this, a ease of seizure under the internal revenue, the judge ordered the property to be condemned. Harroll Wright intervened, claiming, as informer, one-half of the proceeds of forfeiture under the laws of congress. It appearing by the testimony of Collector Stockdale that the informer’s claim was just, he was granted the fraction asked for.

WILKINS, District Judge. This Indictment contains two counts. The first charges the defendant with “being employed,” and the second with “aiding and assisting” in removing “timber from lands of the United States.” The description of the offense is in these words: “That George Schuler, late of the village of Muskegon, in the county of Ottawa, on the 20th of June, 1853, at the mouth of the river Muskegon aforesaid, was employed in removing from lands of the United States, a large amount of timber, to wit: one hundred thousand shingles and twenty cords of shingle bolts, the property of the United States, of the value of one thousand dollars.” The description in the second count, is in the same words, with the exception as “to aiding and assisting in removing,” instead of “being employed to remove.” The act of congress of March 2, 1831 [4 Stat. 472], entitled “An act to provide for the punishment of offenses committed in cutting, destroying, or removing live-oak and other timber or trees reserved for naval purposes”—defines the offense as follows: “If any person shall cut, or be employed in cutting, or shall remove or be employed in removing, or aid and assist in removing any live oak or red cedar trees, or other timber, from lands of the United States, with intent to export, dispose of, use, or employ the same in any manner whatsoever, other than for the use of the navy of the United States, the person so offending, on conviction thereof, shall,' for every such offense, pay a fine not less than triple the value of the tree or trees, or timber so cut, destroyed, or removed, and be imprisoned not exceeding twelve months.” Several reasons axe assigned as causes of demurrer. We will notice them in the order in which they have been presented in the argument. I. It is objected that the offense is not described in either count with sufficient certainty and precision. This objection, especially, has reference to the locality of the trespass. It is not charged that the timber was removed from any designated portion of the public domain. The language is general, “from lands of the United States at the mouth of the river Muskegon aforesaid.” Where the locus in quo is so inseparably connected with the offense,—as in this statutory trespass upon the public lands,—such a description should be given, as would certainly protect the defendant from a second trial for the same offense, in which the indictment contained a more particular description as to township, range, section, or quarter section of land from which the logs were actually removed. It is not necessary to specify any of the political divisions of the state, merely as indicative of the jurisdiction of this court. It is sufficient to allege, that the trespass was committed within the district. Such an allegation is all that is necessary in most of the cases triable in the United States court. But this act of congress, (being part of the land law of the United States,) in the creation of this offense, had reference both to the naval reservation and the surveyed lands of the national domain, with the intention of preserving the timber on them from destruction, by the imposition of severe penalties. And the principal divisions and sub-divisions of the public surveys, being specially directed by statute, and of public record and notoriety, are unquestionably intended by the statutory language “other lands of the United States,” in contradistinction to “the lands reserved.” The usual fiction of “breaking the close” in actions or indictments, for trespass upon lands, or the necessary description in ejectment, is not designative of jurisdiction, but essentially descriptive of the particular property of the plaintiff on or concerning which the offense has been committed. The principle of the fiction is applicable to the indictment. The United States as a great land proprietor, for their preservation, protection, and sale, has had the public lands officially surveyed, and by various agencies and functionaries has had platted off and designated by fixed boundaries and sections, the national domain. A description, then, omitting the material averment of the particular division from whence the timber was removed, is too vague and uncertain. A removal from a body of water, is not a removal from land. Such would not answer in an action for civil damages, much less then, in an indictment, which should be specially descriptive of the offense charged. An individual owning several parcels of land in the same township and county, must specify in his action, with distinguishing certainty, which one of his farms has been injured by the trespass for which he seeks reparation. It would not do, to describe the same generally as by county or townships, where such description would not specify, and where specification was necessary. The “mouth” of a river may embrace for many miles land on either side, and the land adjacent may comprehend more townships than one, it may be more or less extensive, and the lands on its banks or borders be varied as to ownership. In a case then, so seriously involving character, property, and personal liberty, the defendant is entitled to a more specific accusation. The river Muskegon may water, and the county of Ottawa may comprehend a large extent of country, and such averment is no notice to a defendant, as to what particular tract of the lands of the United States, he is called upon to defend. It might as well be “the United States lands” in the county of Ottawa, or the “United States lands in the district of Michigan.” No doubt, other lands are held in the county,, and at the mouth of the river by individual owners, and so far, such description might generally distinguish the government lands from those entered at private sale. But the patent or deed, to an individual, of government lands, describes his purchase by the well known returns of survey, and the marks on the ground, and that which remains unsold is as well known and as easily ascertained. The defendant therefore' should be apprised by the indictment of the particular subdivision to which the alleged offense attaches. It is not a question of jurisdiction that the venue settles, but a matter of essential description. A part of the statutory definition of the offense: material to be proved, and therefore material to be averred. 1 Stat. 465; 4 Stat. 472; 5 Hill, 401; 3 Blackf. 193; 1 Chit. Pl. 234; Cowper, 682; 3 Greenl. Ev. 12; U. S. v. Wilson [Case No. 16,730]. The case of U. S. v. Wilson [supra] does not conflict with this view.. The offense was robbing the U. S. mail in the Eastern district of Pennsylvania. Not necessary to prove and therefore unnecessary to aver particular locality, as 'essentially connected with the crime. But here the offense is not the destruction or removal of timber on wild land, not merely the removal of timber, belonging to the United States, but the destruction or removal of timber on and from the lands of the United States, and (with reference to prior enactments) from the surveyed lands of the United States. II. But it is urged by the government, that the description of the offense is of sufficient certainty, because such description is in the very words of the statute. The words of the statute are, “employed in removing any live oak, or red cedar trees, or other timber, from any other lands of the United States.” The lands of the United States other than those designated and reserved for naval purposes, constitute the premises from which the timber is removed, being employed in which, comprises the offense defined in the statute. What, then, are the essential words of the statute? Certainly those which signify the act, such as “employed in removing;” also its specific character “other timber,” and also the place where the act was done, viz: “on other lands.” By following, then, the precise words of the statute, is the offense so described as to apprise the defendant with sufficient certainty of the particular matter with which he is charged? If so, the description is sufficient, being in the words of the statute. But, if otherwise, if there be obscurity and uncertainty,1 the description is not sufficient, although the statute is followed in totis verbis. Such is the rule in [U. S. v. Gooding] 12 Wheat. [25 U. S.] 460, the governing case. Mr. Justice Story, who gave the opinion of the court, says: “That where an indictment follows the language of the creative statute, it is as certain as the statute, and in general such certainty is sufficient;” but he further remarks: “There are cases where more particularity is required, either from the obvious intention of the legislature, or from the application of known principles of law. Courts have thought such certainty not unreasonable or inconvenient,” but “calculated to put the plea of autre fois acquit, or convict, fairly within the power of the defendant” “The course has been,” observes the court, “to leave every class of cases to be decided very much upon its own peculiar circumstances.” The case of U. S. v. Mills, 7 Pet. [32 U. S.] 138, does not conflict with this general rule and exception. And those cited from McLean, Mason and Gallison, would not modify, even if considered in conflict This court takes the law from the supreme court of the United States, and if the point in controversy has been there adjudicated and settled, it is unnecessary to waste time or strength in protracted commentary upon either English or state authorities. “Ita lex scripta est,”—the authority is conclusive,—so is the law, and the “stare decisis” of the supreme court is mandatory. This case then establishes this rule, viz.:—That in statutory offenses the description of the statute is to be followed, except where more particularity is required from its “obvious intention, and the application of known principles of law.” Oases may arise,— cases have arisen,—where it would not be safe for the pleader to follow the statute; as for instance, where the statute uses general terms, which manifestly require a specific application, in order legally to charge the particular offense. Now, what is the obvious intention of the statute of March 2, 1S81, providing for the punishment of offenses, committed in cutting, destroying, or removing live-oak and other timber, or trees reserved for naval purposes? Its title and history exhibit its object.—The provisions of the prior statute, exclusively protecting lands reserved from sale for naval purposés, were by this act extended to other lands, and measurably to other timber, than live-oak or red cedar. Protection and preservation of the surveyed landed dominion of the United States—whether north or south,, whether growing timber or not;—preservation from spoliation of the surveyed lands, and keeping them, as ordained by Nature, attractive to purchasers, was the sole object and spirit of this amended and extended law. This is obvious from the consideration that the naval reservation and the unsurveyed lands, are not dedicated either to settlement or sale. Within the territorial limits of the United States, and acquired by treaty from the Indians, the unsurveyed dominions await legislative action, the further fostering care of the government, and the progress of population, in order to be appropriately redeemed from the obscurity and helplessness of the ■wilderness. Conceived, but not born—in embryo, but not legally in existence, they await the breath of law, to give them legal being and ensure them legal protection. The land law, for the punishment of this description of trespass, does not embrace the unsurveyed tracts of the public land. They may need such legislation, but it is not yet given. When the act of 1831 was passed, the revenue arising from the land sales, formed a prominent item in the treasury, and was an important object of national solicitude. Its annual increase by salutary legislation—holding forth inducements to the settler and purchaser, and its collection, were the leading motives of the land legislation for many years preceding. The government did not seek the preservation of the timber growing on its lands (with the single exception of the naval reservation,) with the motive of enhancing their value for ornament, or special use, or speculation, but singly with the view of inducing speedy sale and settlement, and preserving for the purchaser, at government price, the lands as they stood. If the evil then to be remedied by the statute was the spoliation of the surveyed lands; and the remedy to be applied the preservation, by sufficient penalties, of its Valuable timber—if regard is to be had to this manifest intention, certainly, cutting timber on the surveyed United States lands, must necessarily be described with reference to their legal notorious divisions and subdivisions, indicated in statutes pari materia, and of public record. It is true, that cutting timber on lands of the United States is the offense, in the words of the statute. But such description would not indicate on what part of the lands of the United States the trespass was committed. And as the lands of the. United States are divided and subdivided— by official surveys and plats—the description required by the statute, and the “application of known principles of law’’ demand that the indictment should conform to a statutory designation, exhibiting the range, township, section, and quarter section, od which the trespass was committed. This is not inconvenient, certainly. This is not, certainly, unreasonable,—this is certainly calculated to “put the plea of former acquittal or conviction fairly within the power of the defendant.” Should the defendant be acquitted, on a charge describing the cutting, or removing, on lands of the United States, at the mouth of a river, in a certain county and district, and be subsequent^- indicted for the same offense, describing the range, township, section, and quarter section, to what purpose could the record of the first case be evidence? The first description did not necessarily include or cover the latter, and without testimony establishing the fact, it could not be inferred. In the post office case, the offense defined was embezzling and secreting, and not stealing the particular enclosure. The breach of official trust was the offense. The descriptive words of the statute are all that are necessary. The name of the bank, or the genuineness of the note, is only necessary as to corroborative evidence, and may or may not be used in the indictment The article of value, if stated, is proved by the note taken; but the fact itself is not essential to establish the offense of embezzlement, neither is it necessary to describe the letter by its superscription. This statute itself, illustrates the point in consideration. For cutting down, or removing naval timber, it would not be sufficient to state merely that the act was on lands of the United States; but on specific and reserved lands. So here; cutting on lands of the United States would embrace the extent of the venue or jurisdiction, and leave the defendant on a wide sea, without chart or compass, to direct him to what particular trespass he must apply his defense. The court considers that the land law of the United States furnishes the chart, and that the government must observe it in these prosecutions. III. But it is further objected to the sufficiency of this indictment, that it does not describe any offense whatever. The words of the statute are, “being employed in removing timber.” In the indictment, the word “timber” is used with a videlicit, explaining it to mean “shingles and shingle-bolts.” This explanation is material, for without it, no charge is specially expressed. “Timber” is a generic term. The question then arises as to the interpretation of the word “timber.” However .the word may be used in common intercourse, or whatever construction has heretofore judicially been given to it, in connection with other legislation, this court will be guided and controlled by the manifest intention of the legislature in its use, and the object of the act of congress. Unless the contrary clearly appears from the context, it will be presumed that the word was employed in its ordinary popular sense. It is not the interpretation of an artistic or technical word, or a word of equivocal meaning. It is a word in common use, and has an enlarged or restricted sense, according to the connection in which it is employed. Keeping in view the spirit of the statute, the evil which it designed to prevent, and the remedy intended, looking to this and other statutes on the same subject, such an interpretation must be given to the word as will effect, and not defeat, the legislative will. As a generic term, it properly signifies, only such trees as are used in building—either ships or dwellings. [U. S. v. Castillero] 2 Black [67 U. S.] 281; 1 Crabbe, Real Prop. § 20; 2 Burrell, Law Diet tit. “Timber.” But its signification is not limited to trees: it applies to the wood, or the particular form which the tree assumes when no longer growing or standing in the ground. Strictly speaking, a tree is that which is growing or standing in the ground whether alive or dead. There are dead and live trees, both standing. But when the trunk is severed from the root, and felled to the earth, it is no longer, properly speaking, a tree. . It becomes timber or lumber, according to the use to which it can be applied. A forest of standing trees, if they can be appropriated to building, is called well timbered land, but loses that designation, if swept to the earth by a tornado. The legislature is presumed to be acquainted with the varied use of the word, and to have employed it in the statute, in an enlarged or a restrictive sense, according to its connection with the subject matter; thus, when used in the act of 1817, in the plural number, “red cedar timber,” it • signifies “standing or growing trees,” and when in the 4th section, (prohibiting its exportation,) it is used in the singular number, “timber,” it evidently applies only to the tree cut down, and prepared for transportation in ships. So that in the same act, according to its association, does it bear two different significations; one, enlarged—embracing the trees of the forest, as standing; and the other a restricted, special meaning, applying only to the use to which the wood can be appropriated. And in the act of congress under consideration, the same varied use is made of the word. When the cutting is prohibited, it is synonymous with trees: “Cutting any other timber on—” i. e., felling them to the earth;—when removal is prohibited, removing any other timber “from,” it is applicable to the restricted sense of the trees being felled to the earth,- and prepared by the labor of man, on the ground where cut for transportation; and where the statute embodies both significations in the phrase “other timber, standing, growing and being.” “Standing and growing” mean when alive as trees, erect in the earth; and “being” is applicable to their character, cut and ready for use. That this distinction exists in the statute, and was in the contemplation of the legislature, seems evident from the use of the term in the second section, wherein the timber cut is used with reference to its being taken on board of a vessel. If cut, it was no longer a tree; if to be taken on board of a vessel, it is no longer a tree. Trees are not transported in vessels from place to place; but timber is, and dropping the word tree, in this section, and using the word “timber”— in connection with “red cedar and live oak cut,”—leaves no doubt in my mind, in regard to the legislative use of the word in the first section, prohibiting the being “employed in removing any live oak or red cedar trees or other timber.” In this connection it is employed to signify the felled trees, prepared for use and transportation, and embraces the various uses to which timber can be appropriated, either in ship or house building—whether pine logs, square pine timber, or any other form in which the cut trees are prepared, either for the saw mill or transportation. It was not the intention of the act of congress, to punish the removal of any article manufactured from the timber cut upon the public lands; such as masts, bowsprits, oars, breakers, casks, boards, tubs, buckets, barrows or hand-spikes; or, to pursue the felled tree as timber further than such preparation of the wood as was necessary for its transportation to the saw mill, or other place of manufacture. Beyond such purpose the article became transmuted. Its nature and use changed. It was no longer timber. Its character as timber ceased when the labor of the lumberer ceased, and the art of the manufacturer commenced. When the article is once perfected for immediate use, it is only known by its appropriate name; and is no more timber than bread is flour, or flour, wheat, or mutton, sheep,—-or beef, oxen;— and such also, are shingles, made of pine timber, because they are perfected by man's art for immediate use. We do not say that a dwelling is timbered, but shingled. Timber logs or timber bolts are brought from the woodland and converted at the saw mill into boards, or scantling, or laths, or shingles; and the latter has a well known and fixed meaning, known to the legislature, and certainly never meant by their term “timber,” in the act of 1S31. It is true that “fat oxen” are provision and munitions of war, according to case cited from 2 Peters: there, the genus “provision” covers the species “oxen.” But “provision” is not fat oxen—it may consist in something else; and here timber, as a genus, by no means includes a manufactured article, which does not bear to it the relation of a species. Timber is the genus of the various trees dedicated by custom to a particular use—such as the pine, the ash, the oak, the cedar, and the chestnut; but certainly not to the articles manufactured therefrom, or otherwise a frame building might be considered a species of timber. But to make the antecedent terms in the statute limit the word to their specific character as trees, would be unnecessary repetition, and clearly defeat the object in view of inhibiting the principal evil designed to be prevented, viz., the illicit commerce between the cutters and those who traded in timber cut. Such was. the object of the act of 1817, and with a like view the provisions of the law were extended to the whole surveyed national domain. The question, then, is not as to the popular meaning of the word, considered as trees growing, or as hewn logs in transitu to the saw mill; but its statutory signification; not its lexicographic, but its signification in the statute, and how it is here legislatively employed. And should such a construction be now given, as to confine the penalty for removal of .trees, as such, the act would defeat itself. If applicable to trees only, the preservation of naval timber so earnestly desired by the government, would be extremely precarious; and if the word is used in its enlarged sense as to naval timber, it must have the same meaning when applied to other lands than naval lands. But it is further assigned as a cause of demurrer, that more of the counts for removing timber, aver that it was removed from lands on which it was grown and cut down. The charge is that the defendant was employed in removing from lands of the United States. Now, if the indictment contains the proper averment specifying the lands by township, range, section, and quarter section, this statement would clearly indicate the character of the lands from which the timber was removed; and keeping the object of the statute in view, and interpreting the term “lands” as employed in the statute, to refer exclusively to the surveyed national domain, held forth by the government for entry and sale, in contradistinction to other real estate belonging to the general government, such as dockyards and arsenals, we must hold the charge contained in the indictment to be sufficient. Taking timber from the United States arsenal without permission, may or may not be a felony, according to the circumstances which surround the act; but it is not the offense described in this statute. Neither is it necessary to aver in the indictment that the timber was removed from the particular section of the United States lands where it was grown and cut. Such a fact need not be proved, to support the specific accusation that the timber was •removed from specific lands. The statute, with a view to preserve the lands from being despoiled, has prohibited not only the cutting down, but the removal. The offenses are distinct. As to the former, such proof is necessarily connected with the cutting; for how could the charge be maintained, without the other fact being established, that the trees were growing or standing when felled? But to remove that which has been already cut down from section to section, and across section lines, either direct to the mill, or to an adjacent stream for floating, is another and a distinct offense, to be established by evidence showing the removal to be from that part of the public domain described. One offender may cut the timber, another may convey it across the section lines to a place of embarkation on the water, and if eventually removed from the United States lands appropriately described, the offense of removal, or being engaged in removing, is fully made out. That the timber was not the timber of the United States is a matter of issue. But as Mr. Justice Story observes in the oft-cited Case of Gooding [12 Wheat. (25 U. S.) 460], the charge is “the precise language of the statute.” “Employed in removing timber from the lands of the United States,” communicates to the accused a definite accusation, by which he cannot be misled, and is unequivocally stated, so as to apprise him of the offense charged and what he is to defend. Here the particularity required as to the locus in quo is not necessary; and the ruling of the supreme court in the Case of Gooding is directly applicable. Another exception is taken to the form of the indictment apparently involving the intention, with which the alleged criminal act was committed. It is not stated in the indictment that the act was knowingly committed. The statute does not require such an averment. If the defendant was employed as charged, he must have known the character in which he acted, and the business about which he was engaged. Besides, the offense described in the 2d section of the law clearly shows the intention of the legislature, that, in the case of freighting a vessel With this timber, the guilty knowledge must be established against the owner or captain; while such proof is not required in the offenses described in the 1st section, but the fact will be presumed, leaving to the defense to rebut such presumption by evidence showing mistake, ignorance of the section lines, and that the trespass was committed under the well-grounded belief that the timber removed was timber removed from other lands than those of the United States. It may be otherwise as to the omission of such terms as would exhibit the unlawfulness of the act, but that point is held under advisement and until further argument, as it is involved in the motion in arrest of judgment in the case of Thompson. I have thus carefully considered the points presented in the unusually protracted argument as to the validity of these indictments. It is much to be regretted that demurrers were not interposed at an earlier period, before jurors and witnesses were brought to attend this court Not only would it have been expedient for the interests of the government, but more satisfactory to the court called upon to decide grave questions of law, during the progress of its session, with a jury, and parties, and witnesses awaiting its action. Such should not be the case, and where causes of a criminal character are hereafter continued from one term to another, with the opportunity in the interval of presenting the law involved by demurrer, the court will not permit while a jury is in attendance, the objections to the indictment in this form to be discussed, but will compel defendants to proceed to trial, and reserve for the action of the court, after verdict, all considerations involving the construction of statutes, or the sufficiency of the pleading. In the ease of George Schuler and Paul H. Howard, the demurrer is sustained.

The following opinion of CRANCH, Chief .Judge, was prepared but not read in court, .as DUCKETT, Circuit Judge, had some doubts as to some of the arguments therein used: This is a verdict for manslaughter, on an indictment at common law for murder; and the question is, what punishment can the court inflict? (1) It is a felony by the common law, but is within the benefit of clergy '.by 23 Ed. III., St. 3, c. 4; and no subsequent statute having taken away the benefit, the party is entitled to it. (2) But sundry statutes have annexed certain conditions to its .allowance to the secular clergy and to mere laymen. Thus by 4 Hen. VII., c. 13, a per,son not in orders was to be marked with a T on the brawn of the left thumb in open court And by the 18 Eliz. c. 7, § 3, he may be imprisoned at the discretion of the court, not exceeding one year; which was in lieu of the purgation and punishment which the ecclesiastical courts were supposed formerly to inflict. These statutes were all in force at the time of the first emigration to Maryland; and there is no doubt that the statute of 25 Ed. III., c. 4, extending and confirming the benefit of clergy, was by experience found applicable to the local and other circumstances of the inhabitants. Nor is there any reason- to doubt that the statutes of 4 Hen. Vil. c. 13, and 18 Eliz. c. 7, § 3, were likewise found applicable. Many persons have been admitted to the benefit of clergy •in Maryland, and burnt in the hand, which ■can only be done by virtue of the statute of •4 Hen. VII., and the subsequent statutes which explain the mode of marking to be by burning. I am therefore of opinion that the courts in Maryland may, in their discretion, by virtue of the statute of 18 Eliz. c. 7, § 3, ¡superadd imprisonment to the burning in the hand, upon allowing the benefit of clergy. Under the act of assembly of Maryland of 1793, c. 57, §§ 10 and 28, the courts of that -state had, on the 27th of February, 1801, a power either to give judgment of burning in ■the hand, and imprisonment under the statute of Elizabeth, or, in their discretion, to ¡sentence the offender to labor on the public ■roads; and that, in cases where the indictments did not conclude against the form of the statute. Another question arises, whether the court cannot lawfully render such judgment against the prisoner as is prescribed by the act of congress of April 30, 1790 (1 Stat. 113). Under this head the first question, which arises, is whether that act is in force within the District of Columbia. Its words are,—-“If any person shall, within any fort or other place, or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of manslaughter, and shall be thereof convicted, such person shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars.” The District of Columbia is a district of country under the sole and exclusive jurisdiction of the United States. Prima fa-cie, therefore, the law applies; and it has never been expressly repealed. It has been said to be impliedly repealed by the act of 27th February, 1801 (2 Stat. 103), which adopts in toto the laws of Maryland. But the adoption of the law of Maryland would not have that effect unless the law of Maryland were either expressly or virtually repugnant to the act of congress of 1790. But the provisions of the two laws are not repugnant to each other. By the act of Maryland the punishment is burning in the hand and imprisonment, or hard labor. By the act of congress, fine and imprisonment. I imagine both laws may stand together, and the court may adept either mode of punishment in their discretion. This court has often decided that larceny may be punished under this same act of congress, and such has been the constant practice ever since the change of jurisdiction. But here we are met by what is called a settled principle of criminal law, that the court cannot, upon a common-law indictment impose a statutory punishment. The authority relied upon is 2 Hawk. P. C. c. 25, § 116, who says,—“It seems that judgment on a statute shall in no case be given on an indictment which does not conclude contra formam statuti.” And again he says, in the same section, “it seems to be tab en as a common ground, that a judgment by statute, shall never be given on an indictment at common law.” These dicta seem to be only inferences which he draws by reasoning from analogy to the case of an action upon a statute; but he cites no case of tin indictment in which the principle has been decided. If he is to be understood as the counsel for the prisoner seem to understand him. he is contradicted by the English every-day practice. By 5 Anne, c. 6, a person convicted of theft or larceny may be committed to the house of correction, to be there kept at hard labor not less than six months nor more than two years; and by 4 Geo. I. c. 11, and 6 Geo. I. c. 23, felonious stealing of goods is punishable by transportation; and yet the indictments for those of-fences never conclude against the form of those statutes, although those punishments are generally inflicted; and there is no case in which the right of the court to inflict such punishments, upon such indictments, has been questioned. I understand Hawkins as referring only to such statutes as add some circumstance to the common-law definition of the crime. ' But where the statute uses only the common-law technical name or description of the offence, and declares it shall be punished in a certain manner, there the indictment need not conclude against the form of that statute to justify tie infliction of the statutory punishment. The offence, in such case, is really not against the statute, hut against the common law. The statute does not create the offence, nor add any circumstance to its description. The term used by the act of congress is simply “manslaughter,” the technical common-law name of the crime of felonious homicide, without malice prepense. So under the act of Maryland, of 1793. it was never supposed necessary that the indictment should conclude against the form of the statute in order to authorize the court to impose the statutory punishment of hard labor. I am therefore of opinion that the court may, in its discretion, sentence the prisoner to be burnt in the hand and imprisoned under the statute 18 Eliz. c. 7, § 3, or to hard labor upon the roads, under the Maryland law, or to fine and imprisonment under the act of congress.

MEMORANDUM Mikias Hadgu Amde, a native and citizen of Ethiopia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir.2004), and we grant the petition for review and remand. The government’s allegation of Amde’s entry date in its notice to appear, in combination with Amde’s admission of that date at his hearing before the IJ, constitutes a judicial admission of the fact of his entry date. Therefore, we conclude that Amde’s entry date was undisputed and that he has established that his asylum application was not time-barred. See Hakopian v. Muka-sey, 551 F.3d 843, 847 (9th Cir.2008) (where government alleges entry date and petitioner admits government’s allegation, entry date is undisputed). Therefore, we do not reach Amde’s contention that the one-year filing requirement violates his right to equal protection. Substantial evidence does not support the IJ’s credibility findings regarding Amde’s lost identity card and the delivery of the police summons because they are based on improper speculation, see Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.2000), and are unrelated to the heart of his claim, see id. at 1067. Because the IJ determined that Amde had testified consistently regarding the remainder of his claim, his testimony was sufficient to establish his Eritrean ethnicity, see Kaur, 379 F.3d at 890, and the IJ erred by faulting him for failing to provide his birth certificate. Thus, substantial evidence does not support the IJ’s determination that Amde failed to carry his burden of proof concerning his Eritrean ethnicity. The IJ determined that Amde, if credible concerning his Eritrean ethnicity, had established past persecution. Therefore, Amde is entitled to a presumption of eligibility for asylum and withholding of removal. See Baballah v. Ashcroft, 367 F.3d 1067, 1078-79 (9th Cir.2004). Because the government argued changed country conditions at Amde’s merits hearing, we remand to the agency for the purpose of determining whether the government has rebutted the presumption by showing, by a preponderance of evidence, that country conditions have so changed such that Amde no longer has a well-founded fear of persecution should he be forced to return. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam); cf. Baballah, 367 F.3d at 1078 n. 11. PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

WASHINGTON, Circuit Justice, then charged the jury, and stated, that although, prima facie, a bill drawn for value received, might be considered as drawn for consideration, yet, that when so strong a ground was laid, as is done in this case, to show the want of consideration, and to warrant the belief that these bills were drawn by a profligate public officer, to satisfy gambling debts, to those who were (he payee and endorser of the bill, it behoved the defendant to clear the case of these suspicions, and to show that value was given for them. The evi dence is certainly very strong in this case, against the fairness of the consideration paid by Elkins as well as by O’Neil. Of all this, however, the jury are the proper judges. The jury found for the defendant.

ROGERS, Circuit Judge. Defendant Timothy Grady Beach pled guilty to the charge of being a felon in possession of a firearm. At sentencing, the judge determined that Beach was an armed career criminal and applied a statutory minimum sentence. Beach appeals the application of that statutory minimum on the ground that the indictment did not charge the requisite prior offenses. Because the precedent of the circuit and of the Supreme Court clearly establishes that prior felonies need not be included in the indictment to form the basis of a minimum sentence for being an armed career criminal, we affirm Beach’s sentence. Beach was indicted on January 31, 2007, for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), which establishes the elements of the offense, and 18 U.S.C. § 924, which sets the penalty. Section 924(a)(2) established a maximum penalty of ten years for a violation of § 922(g). However, § 924(e)(1), known as the Armed Career Criminal Act (ACCA), establishes a mandatory fifteen-year minimum where the defendant has three previous qualifying felonies. At Beach’s arraignment, the Government announced its intention to seek a mandatory minimum sentence under the ACCA. Beach entered an initial plea of not guilty. Beach subsequently changed his plea to guilty. At the plea hearing, and in a petition to plead guilty filed the same day, Beach acknowledged that if he were found to be an armed career criminal he faced a minimum sentence of fifteen years. Beach nonetheless objected to being sentenced under the ACCA. He argued in a motion to the district court that the offense of being an armed career criminal carried the additional element of having three prior convictions for violent felonies or serious drug offenses. In his case, this recidivism element was not found by the grand jury or alleged in the indictment. These omissions, he argued, precluded the court from sentencing him as an armed career criminal. Beach acknowledged, however, that the current state of the law was against his position, citing Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). At the sentencing hearing, the court overruled Beach’s objection and assigned a Sentencing Guidelines range based on Beach’s status as an armed career criminal. Having declined to accept the guilty plea until after resolving the criminal-history issue, the court then accepted the plea. The court determined that the total offense level of 30 and criminal history category of IV resulted in a Guidelines range of 168-210 months. Applying the mandatory 15-year minimum, this range became 180-210 months. Beach’s counsel noted that while the law was against Beach’s position, Beach wished to preserve his objection to the enhancement in the event that the Supreme Court overturned Almendarez-Torres. After hearing evidence, the court sentenced Beach to 180 months in prison. Beach appeals. The precedent of the Supreme Court and of this circuit makes clear that prior criminal convictions forming the basis of an ACCA enhancement are not elements that must be alleged in the indictment and admitted by the defendant. The Supreme Court held in Almendarez-Torres that pri- or convictions affecting the ultimate sentence need not be treated as elements of the offense. 523 U.S. at 227-28, 239-46, 118 S.Ct. 1219. That holding confirmed the existing precedent of this circuit, which established that the government is not required to allege prior convictions in the indictment or prove them at trial before making them the basis of an ACCA enhancement. United States v. Brewer, 853 F.2d 1319, 1329 (6th Cir.1988). Beach argues that Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and a concurrence in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring), call the vitality of Brewer and Almendarez-Torres into question. To the contrary, the Blakely Court acknowledged that “the fact of prior conviction” is explicitly excepted from the rule of Apprendi v. New Jersey, which requires proof of all facts that increase the penalty beyond the statutory maximum. Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Indeed, the Supreme Court recently reaffirmed the applicability of Almendarez-Toñrres to cases such as this one. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1600 n. 8, 167 L.Ed.2d 532 (2007). Moreover, precedent in this circuit decided after the cases which Beach cites establishes that prior convictions leading to ACCA enhancements are not elements which must be charged and either proved or admitted. See United States v. Martin, 526 F.3d 926, 941-42 (6th Cir.2008). Because Beach’s argument is foreclosed by precedent, his sentence is AFFIRMED.

MEMORANDUM OPINION HULL, Chief Judge. These actions for sexual harassment in the workplace, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., came before the Court for trial, without intervention of a jury, on May 17, July 26, and July 27, 1989. Plaintiffs Cheryl L. Kirkland and Billie Jean LaRue both formerly worked as waitresses at The Original Louis’ Drive-In Restaurant (Louis’). Both claim that due to the unwelcome sexual advances, propositions, threats, and physical contacts of a busboy named Ali Hijer, which were condoned and encouraged by the restaurant’s owners, the working conditions at Louis’ were offensive and intimidating. Both sought compensation in terms of back pay. Title VII case law has recognized two basic variants of sexual harassment: harassment that creates an offensive environment and harassment in which a supervisor demands sexual consideration in exchange for job benefits. Rabidue v. Osceola Refining Co., 805 F.2d 611, 618 (6th Cir.1986). All of the claims at issue in this case fall into the first category. As the Court understands the Rabidue case, in order to prevail in their claim, plaintiffs Kirkland and LaRue have the burden of proving: (1) that they were subjected to unweleomed sexual harassment in the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (2) that the harassment complained of was based on sex; (3) that this harassment had the effect of unreasonably interfering with their work performance and creating an intimidating, hostile, or offensive working environment that af fected seriously their psychological well being; and, (4) that their employers either knew or should have known of the sexual harassment and failed to implement prompt and appropriate corrective action. Moreover, in order to accord appropriate protection to both plaintiffs and defendants in a hostile work environment case, the trier of fact, when judging the totality of the circumstances, must adopt the perspective of a “reasonable person” reacting to a similar environment under essentially similar circumstances. Rabidue, 805 F.2d at 619-621. The first step in establishing a claim based on offensive working conditions requires proof of unwelcomed sexual harassment in the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Plaintiff LaRue testified that Mr. Hijer offered her $100.00 for sex; that after she had made it clear that she was a married woman and unavailable to him, he often whispered to her his desire to go to bed with her “for six months”; that at one time, when he apparently incorrectly believed she had accused him of stealing tips, he pointed his finger in her face, spoke to her in angry and threatening words, grabbed her painfully by the arm, and did not release her until Jeff Foster, the cook, broke up the encounter. She testified that, after that event, he started surreptitiously patting her on her rear end to annoy her; that he would do this and then run away laughing; that he spitefully persisted in this behavior long after she had instructed him to keep his hands off her; that he would come up behind her and snap her bra; that he was unwilling to take any instruction from women; that on two occasions threatened to kill her when she had asked him to do something such as clear a table or wipe off some chairs; and that he got into a physical fight with her on the day she quit because she had asked him to take the chairs down off the tables to have the restaurant ready for opening. On that final day, she testified that Mr. Hijer got very angry at her request; accused her of lying; backed her up while poking his finger in her face; grabbed her arm, causing her to drop a plate of lemons she had cut up for the day’s tea; and kicked her in the shins when she slapped his face. Allegedly, this entire incident was played out in the full view of defendant Regas, who took no steps to protect her, showed no concern for her injury, and them blamed her for “picking on- AIL” Plaintiff Kirkland’s testimony was very similar. She too was offered $100.00 for sex; she also found Mr. Hijer unreasonably angry and threatening when asked to do routine, work-related jobs; and she too was subjected to apparently hostile pranks (or misguided playfulness) such as hiding her tips among the sugar packets. She also testified of unwelcome hugs and pats, and being constantly asked by Ali to try to get him the telephone numbers of attractive female customers. Other former employees corroborated the plaintiffs’ accounts. Waitress Beth Keller was also offered money for sex by Mr. Hijer. Waitress Betty Beal and cashier Shirley Dunn were both threatened with death after asking Mr. Hijer to clear tables. The Court is satisfied that unwelcome sexual advances, requests for sexual favors, and verbal and physical conduct of a kind likely to be offensive to any reasonable person working under similar circumstances, was at least occasionally a problem for women working at Louis’ who came in contact with Mr. Hijer. As indicated earlier, Rabidue requires that the plaintiffs prove that the harassment in question had the effect of unreasonably interfering with their work performance and creating an intimidating, hostile, or offensive working environment that seriously affected their psychological well being. Neither plaintiff testified to any psychological damage caused by their employment or that they were unable to carry on their work. Both waitresses were married women with years of waitressing experience who were quite able to take care of themselves. Both however, testified emphatically about their general outrage not only at Mr. Hijer’s conduct, but at the insensitivity of the defendants themselves. While it is clear that both plaintiffs.would have been better able to cope with Mr. Hijer’s unwelcome conduct if they had felt that their personal dignity was respected and protected by the management, neither plaintiff proved any actual damages as a result of Mr. Hijer’s behavior. Neither established a causal connection between the back pay being claimed and the sexual harassment. Rabidue also requires that the employers, if they are to be held liable, must have known of the harassment, or reasonably should have known about it, and failed to take prompt and appropriate corrective action. Neither plaintiff expressly complained of sexual harassment to their employers, but neither believed that the defendants would be sympathetic. Both felt that the defendants were fully aware of what was going on in the restaurant and were amused by it. Former busboy Mark Pinsley testified that Mr. Hijer’s harassment of the waitresses was on “a day to day basis” and that it was hard not to notice. It was his impression that defendant Regas was aware of it all. [“There wasn’t a whole lot going on that Jimmy didn’t know about.”] He specifically remembered seeing Mr. Hi-jer come up behind Mrs. Kirkland, push her up against the ice machine, and put his hands on her breasts. [“She went hysterical.”]. He and several other witnesses also remember occasions when dishwasher Nancy Whittaker would scream at Mr. Hijer to keep his hands off her and that she could be heard all over the restaurant. Mrs. LaRue testified that Mr. Regas was present the first time Mr. Hijer patted her on the rear; that she specifically told him not to do it again; and that she asked Mr. Regas to tell Ali to keep his hands off her. She says that Mr. Regas responded with “a silly grin;” did not reprimand Mr. Hijer; but started calling him “rooster” after that incident. Mrs. LaRue, Betty Beal, and Shirley Dunn each testified that they reported to Mr. Regas the first time Mr. Hijer threatened to kill them. Penny Pate reported this to both managers and they acted as if they hadn’t heard her. Shirley Dunn testified that Mr. Regas just walked away when she spoke to him. Betty Beal said that Mr. Regas simply said he would talk to Gus (Mr. Brinias) about it. None of the witnesses believed that any attempt was ever made to correct Mr. Hijer’s threatening behavior. Mrs. LaRue also testified that she told Mr. Brinias that Ali was pestering certain female customers, trying to go out with them, but that he simply ignored her and just walked off. Mrs. Kirkland testified that she told Mr. Regas that Mr. Hijer was trying to get the customers’ telephone numbers. She claims that he responded, “Why don’t you just give him [Ali] a little —he’s horney.” Beth Keller overheard this remark as did Betty Beal, who testified that Mrs. Kirkland was “visibly upset.” The defendants’ first witness was Gus Ligdis, who apparently worked as an assistant manager of Louis’ during some of Mrs. LaRue’s tenure there although he did not overlap with plaintiff Kirkland. He testified as an eye witness to the scuffle between Mrs. LaRue and Ali, indicating that when he separated them, Ali was bleeding from his mouth. He said that Mrs. LaRue assumed she would be fired; said things like “I guess you’re going to take up for him,” and quit before the management even had time to investigate the incident. He also testified that no employee ever complained to him about improper sexual conduct on Mr. Hijer’s part and that, if they had, Ali would have been fired on the spot. He claimed that he was unaware of Mr. Hijer’s requests for sexual favors from the waitresses until this lawsuit was filed. Mr. Ligdis’ testimony was helpful in establishing that much of the difficulty experienced by the waitresses as Louis’ was a matter of cultural misunderstandings. Both defendants Regas and Brinias, and Mr. Ligdis himself, had come to the United States from Greece (one by way of Canada first) as young men in their twenties, speaking no English, and having very little education. Although they were all now men in their 50’s, American citizens, and well established in the restaurant business, they were still very much Greeks. There were obvious linguistic and cultural differences between them and the local women they hired as waitresses. Mr. Hijer was a man in his 50’s who had very recently immigrated from Amman, Jordan. His English was exceedingly limited and he was having difficulty making his way in a new culture. Both defendants were sympathetic to his plight and trying to help him out. Undoubtedly, they often did instruct the other employees to “Quit picking on Ali.” However, Mr. Ligdis did not consider either defendant to have been unfair to their employees or unwilling to listen to their complaints and problems. The defendant’s second witness, Jeffrey Foster, was the cook Mrs. LaRue testified about who had interceded to make Mr. Hi-jer to let go of her arm. He remembered having to ask Ali to let go of Mrs. LaRue and telling him to leave her alone. He did not remember witnessing any improper sexual touching on Ali’s part but testified that he had a way of grabbing a person’s arm (both men and women) and holding them in his presence while he struggled to communicate whatever he had to say to them. He had heard rumors that Ali was bothering waitresses and asking them for sexual favors in exchange for money. He testified that Mrs. LaRue did not like Mr. Hijer and called him an “Iranian motherfucker.” It was his impression that the defendants would have listened if the plaintiffs had complained about improper sexual conduct. Witness Mary Kathleen Sharp worked at Louis’ when both plaintiffs Kirkland and LaRue were there and during the time of Mr. Hijer’s employment. She testified that she never had any problems with Ali and was unaware that he had ever offered money to any of the waitresses in exchange for sex. She never witnessed any improper touching on his part and did not believe he would steal tips. She also testified that Mrs. LaRue did not like Mr. Hijer and called him names. She believed both defendants would be willing to listen to employees’ problems and help them out if they were being harassed. Nancy Whittaker, a long-time kitchen employee at Louis’ (and the one who supposedly could be heard all over the restaurant yelling at Ali to keep his hands off her), also testified for the defendants. She admitted that when Ali first came to work he would take her by the arm when he talked to her and she had to tell him not to do this. She testified that a lot of people had trouble getting along with Ali because they couldn’t understand him. Plaintiff LaRue would call him a “son-of-a-bitch foreigner.” She also testified that when he first came, Ali couldn’t do his job too well, did not understand what the waitresses wanted him to do, and generally had a hard time. However, “He was doing the best he could.” She had a different explanation for why Mr. Hijer was called “rooster” (it arose out of a linguistic misunderstanding when he was sent to the kitchen to get some chicken) and another explanation for why Mr. Hijer was offering some of the waitresses $100.00. (He was trying to rent a room and could pay that amount per month for a place to live.) She testified that both defendants were accessible to employees and would listen to their problems. Kathy Sue Blizzard had worked with Ali. They both came in early, before the restaurant was open, to do food preparation. She had not been afraid to be alone in the place with him; was never propositioned for sex; and never experienced any improper sexual touching. She remembered that neither Mrs. Kirkland nor Mrs. LaRue liked Ali. She considers her employers to be approachable and willing to work out problems between employees. They helped her out when she was having trouble with an employee named Eddie. Employee Ann Dayspring was never offered money by Ali and was never subjected to any improper sexual conduct. She considered defendant Regas unresponsive to employees but that Mr. Brinias was always willing to listen. Former employee Darlynn Rhoades also worked with Ali without experiencing any problems. She worked as a cashier and, on occasion, had to give him instructions such as to move certain tables together for larger parties. Sometimes he. would pretend not to understand what she wanted. She remembers that Mrs. LaRue and Mr. Hijer were “always at each other.” It was her impression that Mr. Hijer was not used to having women tell him what to do and that the waitresses were insensitive to this and did not know how to handle him. She felt that both her employers were accessible and would listen to an employee’s problems. Ali Hijer also witnessed for the defendants. His language problems were evident. For example, despite the fact that he had now been in this country eight years, and that he has worked almost exclusively in the restaurant business, he did not know the word “waitress.” The word “sex” was misinterpreted as “six (6)”. When asked if he had offered any of the waitresses at Louis’ $100.00 to go to bed with him, he protested that that would have been impossible on his salary; he was too old for such things (now 58); that he had a wife and thirteen children, etc. He denied ever trying to rent a room from anybody at Louis’ for $100.00. He emphatically and emotionally denied ever improperly touching any woman. He was very upset that one of the plaintiffs had accused him of stealing tips and twice recounted to the Court an incident in which he had found $17.00 (apparently lost by a patron) and turned it over to the management. He was very upset about the fight with plaintiff LaRue and explained to the Court that in Arabia, a woman would never hit a man. He had not known how to handle her attack. The Court noted that Mr. Hijer was about 5'5" tall and weighed about 140 pounds. He was obviously smaller than Mrs. LaRue. Former employee Donna Ballew testified that she was aware that some of the waitresses had been offered money for sex by Mr. Hijer. “Everybody picked on Ali.” He got his feelings hurt a lot. The plaintiffs did not like him and would call him “bad things.” She never took any personal problems to the management but believed that she could. “Jimmy (Mr. Regas) was as gentle as a puppy.” Defendant Jimmy Regas told about coming to the United States and eventually purchasing his uncle Louis’ restaurant business. With regard to plaintiff Kirkland, he described several incidents when he had helped her out with personal problems and pointed out that he had not fired her even after one incident when she had referred to a customer as a son-of-a-bitch under circumstances where other patrons could hear her. He denied ever witnessing any improper sexual conduct on Ali’s part; denied ever pushing Mrs. Kirkland into the Coke machine; and had no recollection of her ever reporting to him that Ali was bothering any customers. He testified that Mrs. Kirkland would, on occasion, complain to him about Ali’s work and that he would always check on the situation. He pointed out that neither plaintiff had been fired and that Mrs. LaRue quit after the fight with Ali before he had even had a chance to find out what the problem was between them. He denied that any waitress ever complained to him that Ali was offering them money for sex. Mr. Brinias admitted hearing indirectly that Ali had offered money to some of the waitresses but testified that, unless someone actually came to him with a complaint, he would not investigate such a rumor. As far as he knew, the waitresses were considering it a joke-and nobody had taken offense. He testified that in the hustle of the restaurant business there was always bumping, jostling, and friction between employees and that the management let the employees sort out their own problems unless somebody specifically requested that they intercede. He remembered that Mrs. LaRue had complained to him about Ali but that it was always with regard to the way he did (or failed to do) his work. Neither she nor any other waitress ever complained of sexual harassment. He pointed out that even in Mrs. Kirkland’s long letter to him about her grievances with Louis’ restaurant, she had not informed him that she’s ever experienced any sexual harassment. He and Mr. Regas had been advised that Ali had bothered a customer and had investigated the report. While he had heard that Ali had propositioned Beth Keller, he could not believe he would ever have propo sitioned Mrs. LaRue or Mrs. Kirkland. “He told me he wouldn’t even spit on them.” However, he indicated that if either of them had been sexually harassed or offended by Mr. Hijer’s conduct, and had come to him for help, he would have taken the complaint seriously and immediately investigated the charge. After carefully weighing all of the proof, the Court finds in favor of the defendants. There is no question that the plaintiffs, and some of the other waitresses at Louis’, were subjected to sexual harassment on the job. However, unlike the situation in the typical harassment case, the unwelcome behavior came from a subordinate, not a supervisor. And while the Court finds that some misconduct was of a sexually offensive nature, that would create a hostile and intimidating working environment for a reasonable person under those circumstances, there is no hint that it had any harmful psychological effect on the plaintiffs. Both plaintiffs quit their jobs because they felt that their employers were unwilling to listen to their side of an issue when they felt unjustly accused of something. Neither quit as a direct result of any overtly sexual conduct. In fact, plaintiff Kirkland wrote defendant Brinias a twelve-page letter after her resignation in which she catalogued her many grievances against her former employers. These included lack of vacation pay, lack of maternity leave, false accusations, etc., but did not mention sexual harassment. In fact, the evidence was overwhelming that both plaintiffs were well able to handle the situation; that they were both capable, outspoken women; and that, if they had needed help from the management, they would not have hesitated to ask for it. Finally, evidence that the defendant employers recognized, or should have recognized, that any of their employees found Mr. Hijer’s conduct sexually offensive, did not preponderate in favor of the plaintiffs. Accordingly, judgment will enter on behalf of the defendants and the plaintiffs will take nothing on their claim.

PER CURIAM. Brandy Shipp (“Shipp”) filed this wrongful death action in Missouri state court against GfK NOP, LLC; Roper ASW, LLC; and Roper Starch Worldwide, LLC (collectively, “GfK”) in connection with the death of her mother, Summer Shipp, alleging that Summer Shipp worked as an independent contractor for GfK. GfK removed the case to federal court and filed a motion to dismiss, which the district court granted. Shipp appeals, and we affirm. Summer Shipp was last seen on December 8, 2004, while she was conducting door-to-door surveys for GfK in Independence, Missouri. On October 9, 2007, Missouri law enforcement officials confirmed that they had located the remains of Summer Shipp along the banks of the Little Blue River in Independence, Missouri. The exact details of Summer Shipp’s death and disappearance are unknown and remain under investigation. On December 7, 2007, Shipp filed this wrongful death action asserting claims based on: (1) the special relationship exception to the general rule that a party is not liable for third-party criminal acts; (2) the special facts exception to that general rule; (3) general negligence; (4) sections 413 and 416 of the Restatement (Second) of Torts; (5) the inherently dangerous activity doctrine; and (6) the non-delegable duty doctrine. The district court granted GfK’s motion to dismiss each of Shipp’s six claims. First, the district court dismissed Shipp’s special relationship claim because she failed to plead that GfK voluntarily assumed a duty to protect Summer Shipp from the actions of third parties and the special relationship that Shipp pled—that of employer/independent contractor—did not impose a duty on GfK to protect Summer Shipp from the criminal actions of third parties. See, e.g., Phelps v. Bross, 73 S.W.3d 651, 657 (Mo.Ct.App.2002) (holding that the special relationship exception applies if the “plaintiff entrusted himself or herself to the protection of the defendant and relied upon the defendant to provide a place of safety”). Second, the district court dismissed Shipp’s special facts claim because Shipp did not plead that Summer Shipp’s death occurred on or near GfK’s property and because Shipp’s allegation that GfK sent Summer Shipp to a high crime area standing alone could not be a basis of liability. See Miller v. South County Ctr., Inc., 857 S.W.2d 507, 510-11 (Mo.Ct.App.1993) (explaining that the special facts exception may apply when “the attacker is unknown but, due to prior attacks on the premises, a duty arises to protect invitees because subsequent attacks now become foreseeable”); Irby v. St. Louis Cab Co., 560 S.W.2d 392, 395 (Mo.Ct.App.1977) (providing that “[t]he allegation of a ‘high crime area’ does not ispo facto mandate” a duty of care). Third, the district court dismissed Shipp’s general negligence claim because, in the absence of special facts or a special relationship, GfK had no duty to protect Summer Shipp from the criminal actions of third parties. See Wright v. St. Louis Produce Mkt., Inc., 43 S.W.3d 404, 409-10 (Mo.Ct.App.2001). Fourth, the district court dismissed Shipp’s claim based on sections 413 and 416 of the Restatement (Second) of Torts because independent contractors, as a mat ter of law, do not fall within the categories of “others” who are protected by those sections. Instead, sections 413 and 416 protect third parties who are not part of the employer/independent contractor relationship and not the independent contractor herself. See Canady v. Crystal Dev. Corp., 756 S.W.2d 607, 610 (Mo.Ct.App. 1988) (explaining that sections 413 and 416 make the employer of an independent contractor liable to “others” when the work performed by the independent contractor is likely to create an unreasonable risk of harm to others). Fifth, the district court dismissed Shipp’s inherently dangerous activity doctrine claim because, even if that doctrine could be applied to a non-land owner, the doctrine does not apply to an independent contractor who was herself injured while performing the contracted work. See Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 405 (Mo.Ct.App.1997). Sixth, the district court dismissed Shipp’s non-delegable duty doctrine claim because she did not differentiate that claim from her inherently dangerous activity doctrine claim; thus, because her inherently dangerous activity doctrine claim failed, so must her non-delegable duty doctrine claim. Shipp appeals the district court’s dismissal of each of her claims, arguing that the district court misapplied the standard governing motions to dismiss. She contends that her pleadings set forth specific facts upon which relief could be granted on each claim and that the district court overlooked precedent supporting her claims. “We review de novo a district court’s decision to grant a motion to dismiss for failure to state a claim.” Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir.2008). “[W]e accept as true all of the factual allegations contained in the complaint, and review the complaint to determine whether its allegations show that the pleader is entitled to relief.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.), cert. denied, 555 U.S.-, 129 S.Ct. 222, 172 L.Ed.2d 142 (2008). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions.... ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (internal citations omitted). After a thorough review of the record, we agree with the district court that Shipp failed to state any claim upon which relief could be granted. For the reasons stated in the district court’s well-reasoned opinion, we affirm. See 8th Cir. R. 47B. . The Honorable Sarah W. Hays, United States Magistrate Judge for the Western District of Missouri, presiding by consent of the parties pursuant to 28 U.S.C. § 636(c).

GIBSON, J., delivered the opinion of the court. NELSON (pp. 760-761) and CLAY (pp. 761-762), JJ., delivered separate opinions concurring in part and dissenting in part. GIBSON, Circuit Judge. Gerry DiNardo resigned as Vanderbilt’s head football coach to become the head football coach for Louisiana State University. As k result, Vanderbilt University brought this breach of contract action. The district court entered summary judgment for Vanderbilt, awarding $281,886.43 pursuant to a damage provision in DiNar-do’s employment contract with Vanderbilt. DiNardo appeals, arguing that the district court erred in concluding: (1) that the contract provision was an enforceable liquidated damage provision and not an unlawful penalty under Tennessee law; (2) that Vanderbilt did not waive its right to liquidated damages; (3) that the Addendum to the contract was enforceable; and (4) that the Addendum applied to the damage provision of the original contract. DiNardo also argues that there are disputed issues of material fact precluding summary judgment. We affirm the district court’s ruling that the employment contract contained an enforceable liquidated damage provision and the award of liquidated damages under the original contract. We conclude, however, that there are genuine issues of material fact as to whether the Addendum was enforceable. We therefore reverse the judgment awarding liquidated damages under the Addendum and remand the case to the district court. On December 3, 1990, Vanderbilt and DiNardo executed an employment contract hiring DiNardo to be Vanderbilt’s head football coach. Section one of the contract provided: The University hereby agrees to hire Mr. DiNardo for a period of five (6) years from the date hereof with Mr. DiNardo’s assurance that he will serve the entire term of this Contract, a long-term commitment by Mr. DiNardo being important to the University’s desire for a stable intercollegiate football program .... The contract also contained reciprocal liquidated damage provisions. Vanderbilt agreed to pay DiNardo his remaining salary should Vanderbilt replace him as football coach, and DiNardo agreed to reimburse Vanderbilt should he leave before his contract expired. Section eight of the contract stated: Mr. DiNardo recognizes that his promise to work for the University for the entire term of this 5-year Contract is of the essence of this Contract to the University. Mr. DiNardo also recognizes that the University is making a highly valuable investment in his continued employment by entering into this Contract and its investment would be lost were he to resign or otherwise terminate his employment as Head Football Coach with the University prior to the expiration of this Contract. Accordingly, Mr. DiNar-do agrees that in the event he resigns or otherwise terminates his employment as Head Football Coach (as opposed to his resignation or termination from another position at the University to which he may have been reassigned), prior to the expiration of this Contract, and is em ployed or performing services for a person or institution other than the University, he will pay to the University as liquidated damages an amount equal to his Base Salary, less amounts that would otherwise be deducted or withheld from his Base Salary for income and social security tax purposes, multiplied by the number of years (or portion(s) thereof) remaining on the Contract. During contract negotiations, section eight was modified at DiNardo’s request so that damages would be calculated based on net, rather than gross, salary. Vanderbilt initially set DiNardo’s salary at $100,000 per year. DiNardo received salary increases in 1992, 1993, and 1994. On August 14, 1994, Paul Hoolahan, Vanderbilt’s Athletic Director, went to Bell Buckle, Tennessee, where the football team was practicing, to talk to DiNardo about a contract extension. (DiNardo’s original contract would expire on January 5, 1996). Hoolahan offered DiNardo a two-year contract extension. DiNardo told Hoolahan that he wanted to extend his contract, but that he also wanted to discuss the extension with Larry DiNardo, his brother and attorney. Hoolahan telephoned John Callison, Deputy General Counsel for Vanderbilt, and asked him to prepare a contract extension. Callison drafted an addendum to the original employment contract which- provided for a two-year extension of the original contract, specifying a termination date of January 6, 1998. Vanderbilt’s Chancellor, Joe B. Wyatt, and Hoolahan signed the Addendum. On August 17, Hoolahan returned to Bell Buckle with the Addendum. He took it to DiNardo at the practice field where they met in Hoolahan’s car. DiNardo stated that Hoolahan did not present him with the complete two-page addendum, but only the second page, which was the signature page. DiNardo asked,-“what am I signing?” Hoolahan explained to DiNardo, “[i]t means that your contract as it presently exists will be extended for two years with everything else remaining exactly the same as it existed in the present contract.” Before DiNardo signed the Addendum, he told Hoolahan, “Larry needs to see a copy before this thing is finalized.” Hoolahan agreed, and DiNardo signed the document. DiNardo explained that he agreed to sign the document because he thought the extension was the “best thing” for the football program and that he “knew ultimately, Larry would look at it, and before it would become finalized he would approve it.” Hoolahan took the signed document without giving DiNardo a copy. On August 16, Larry DiNardo had a telephone conversation with Callison. They briefly talked about the contract extension, discussing a salary increase. Larry DiNardo testified that as of that date he did not know that Gerry DiNardo had signed the Addendum, or even that one yet existed. DiNardo stated publicly that he was “excited” about the extension of his contract, and there was an article in the August 20, 1994, newspaper, The Tennessean, reporting that DiNardo’s contract had been extended by two years. On August 25, 1994, Callison faxed to Larry DiNardo “a copy of the draft Addendum to Gerry’s contract.” Callison wrote on the fax transmittal sheet: “[l]et me know if you have any questions.” The copy sent was unsigned. Callison and Larry DiNardo had several telephone conversations in late August and September, primarily discussing the television and radio contract. Callison testified that he did not recall discussing the Addendum, explaining: “[t]he hot issue ... was the radio and television contract.” On September 27, Callison sent a fax to Larry DiNardo concerning the television and radio contract, and also added: “I would like your comments on the contract extension.” Larry DiNardo testified that he neither participated in the drafting nor suggested any changes to the Addendum. In November 1994, Louisiana State University contacted Vanderbilt in hopes of speaking with DiNardo about becoming the head football coach for L.S.U. Hoola-han gave DiNardo permission to speak to L.S.U. about the position. On December 12, 1994, DiNardo announced that he was accepting the L.S.U. position. Vanderbilt sent a demand letter to DiNardo seeking payment of liquidated damages under section eight of the contract. Vanderbilt believed that DiNardo was liable for three years of his net salary: one year under the original contract and two years under the Addendum. DiNardo did not respond to Vanderbilt’s demand for payment. Vanderbilt brought this action against DiNardo for breach of contract. DiNardo removed the action to federal court, and both parties filed motions for summary judgment. The district court held that section eight was an enforceable liquidated damages provision, not an unlawful penalty, and that the damages provided under section eight were reasonable. Vanderbilt University v. DiNardo, 974 F.Supp. 638, 643 (M.D.Tenn.1997). The court held that Vanderbilt did not waive its contractual rights under section eight when it granted DiNardo permission to talk to L.S.U. and that the Addendum was enforceable and extended the contract for two years. Id. at 643-45. The court entered judgment against DiNardo for $281,886.43. Id. at 645. DiNardo appeals. I. DiNardo first claims that section eight of the contract is an unenforceable penalty under Tennessee law. DiNardo argues that the provision is not a liquidated damage provision but a “thinly disguised, overly broad non-compete provision,” unenforceable under Tennessee law. We review the district court’s summary judgment de novo, using the same standard as used by the district court. See Birgel v. Bd. of Comm’rs., 125 F.3d 948, 950 (6th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1038, 140 L.Ed.2d 104 (1998). We view the evidence in the light most favorable to the non-moving party to determine whether there is a genuine issue as to any material fact. See id. Summary judgment is proper if the record shows 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). Contracting parties may agree to the payment of liquidated damages in the event of a breach. See Beasley v. Horrell, 864 S.W.2d 45, 48 (Tenn.Ct.App.1993). The term “liquidated damages” refers to an amount determined by the parties to be just compensation for damages should a breach occur. See id. Courts will not enforce such a provision, however, if the stipulated amount constitutes a penalty. See id. A penalty is designed to coerce performance by punishing default. See id. In Tennessee, a provision will be considered one for liquidated damages, rather than a penalty, if it is reasonable in relation to the anticipated damages for breach, measured prospectively at the time the contract was entered into, and not grossly disproportionate to the actual damages. See Beasley, 864 S.W.2d at 48; Kimbrough & Co. v. Schmitt, 939 S.W.2d 105, 108 (Tenn.Ct.App.1996). When these conditions are met, particularly the first, the parties probably intended the provision to be for liquidated damages. However, any doubt as to the character of the contract provision will be resolved in favor of finding it a penalty. See Beasley, 864 S.W.2d at 48. The district court held that the use of a formula based on DiNardo’s salary to calculate liquidated damages was reasonable “given the nature of the unquantifiable damages in the case.” 974 F.Supp. at 642. The court held that parties to a contract may include consequential damages and even damages not usually awarded by law in a liquidated damage provision provided .that they were contemplated by the parties. Id. at 643. The court explained: The potential damage to [Vanderbilt] extends far beyond the cost of merely hiring a new head football coach. It is this uncertain potentiality that the parties sought to address by providing for a sum certain to apply towards anticipated expenses and losses. It is impossible to estimate how the loss of a head football coach will affect alumni relations, public support, football ticket sales, contributions, etc.... As such, to require a precise formula for calculating damages resulting from the breach of contract by a college head football coach would be tantamount to barring the parties from stipulating to liquidated damages evidence in advance. Id. at 642. DiNardo contends that there is no evidence that the parties contemplated that the potential damage from DiNardo’s resignation would go beyond the cost of hiring a replacement coach. He argues that his salary has no relationship to Vanderbilt’s damages and that the liquidated damage amount is unreasonable and shows that the parties did not intend the provision to be for liquidated damages. DiNardo’s theory of the parties’ intent, however, does not square with the record. The contract language establishes that Vanderbilt wanted the five-year contract because “a long-term commitment” by DiNardo was “important to the University’s desire for a stable intercollegiate football program,” and that this commitment was of “essence” to the contract. Vanderbilt offered the two-year contract extension to DiNardo well over a year before his original contract expired. Both parties understood that the extension was to provide stability to the program, which helped in recruiting players and retaining assistant coaches. Thus, undisputed evidence, and reasonable inferences therefrom, establish that both parties understood and agreed that DiNardo’s resignation would result in Vanderbilt suffering damage beyond the cost of hiring a replacement coach. This evidence also refutes DiNar-do’s argument that the district court erred in presuming that DiNardo’s resignation would necessarily cause damage to the University. That the University may actually benefit from a coaching change (as DiNardo suggests) matters little, as we measure the reasonableness of the liquidated damage provision at the time the parties entered the contract, not when the breach occurred, Kimbrough & Co., 939 S.W.2d at 108, and we hardly think the parties entered the contract anticipating that DiNardo’s resignation would benefit Vanderbilt. The stipulated damage amount is reasonable in relation to the amount of damages that could be expected to result from the breach. As we stated, the parties understood that Vanderbilt would suffer damage should DiNardo prematurely terminate his contract, and that these actual damages would be difficult to measure. See Kimbrough & Co., 939 S.W.2d at 108. Our conclusion is consistent with a decision by the Tennessee Court of Appeals in Smith v. American General Corporation, No 87-79-11, 1987 WL 15144 (Tenn.Ct.App. Aug.5, 1987). In that case, an individual sued his former employer for breach of an employment contract. Id. at *1. The employee had a three-year contract, and the contract provided for a single lump sum payment of all remaining compensation in the event of a breach by the employer. Id. at *1-2. When the employer reduced the employee’s duties, he quit, and sued seeking to enforce the liquidated damage provision. The employer argued the provision was a penalty, and that the employee should only be able to recover his total salary under the contract reduced by the employee’s earnings in his new job. The Tennessee court rejected these arguments, concluding that even though the usual measure of damage is the difference between an employee’s old and new salaries, here, the parties reasonably contemplated “special damage,” including the intangible damage to the employee’s prestige and career. Id. at *6. The court found that the parties expressly recognized the importance to the employee of the continuation of his employment, and it was “clearly within the contemplation of the parties that, if [the employee] should not be retained in his position ... he would suffer unliquidated damages which would be difficult of proof.” Id. at *7. Our reasoning follows that of Smith. Vanderbilt hired DiNardo for a unique and specialized position, and the parties understood that the amount of damages could not be easily ascertained should a breach occur. Contrary to DiNardo’s suggestion, Vanderbilt did not need to undertake an analysis to determine actual damages, and using the number of years left on the contract multiplied by the salary per year was a reasonable way to calculate damages considering the difficulty of ascertaining damages with certainty. See Kimbrough & Co., 939 S.W.2d at 108. The fact that liquidated damages declined each year DiNardo remained under contract, is directly tied to the parties’ express understanding of the importance of a long-term commitment from DiNardo. Furthermore, the liquidated damages provision was reciprocal and the result of negotiations between two parties, each of whom was represented by counsel. We also reject DiNardo’s argument that a question of fact remains as to whether the parties intended section eight to be a “reasonable estimate” of damages. • The liquidated damages are in line with Vanderbilt’s estimate of its actual damages. See Kimbrough & Co., 939 S.W.2d at 108-09. Vanderbilt presented evidence that it incurred expenses associated with recruiting a new head coach of $27,000.00; moving expenses for the new coaching staff of $86,840; and a compensation difference between the coaching staffs of $184,311. The stipulated damages clause is reasonable under the circumstances, and we affirm the district court’s conclusion that the liquidated damages clause is enforceable under Tennessee law. II. DiNardo next argues that Vanderbilt waived its right to liquidated damages when it granted DiNardo' permission to discuss the coaching position with L.S.U. Under Tennessee law, a party may not recover liquidated damages when it is responsible for or has contributed to the delay or nonperformance alleged as the breach. See V.L. Nicholson Co. v. Transcon Inv. and Fin. Ltd., Inc., 595 S.W.2d 474, 484 (Tenn.1980). Vanderbilt did not waive its rights under section eight of the contract by giving DiNardo permission to pursue the L.S.U. position. See Chattem, Inc. v. Provident Life & Accident Ins. Co., 676 S.W.2d 953, 955 (Tenn.1984) (waiver is the intentional, voluntary relinquishment of a known right). First, Hoolahan’s permission was quite circumscribed. Hoolahan gave DiNardo permission to talk to L.S.U. about their coaching position; he did not authorize DiNardo to terminate his contract with Vanderbilt. Second, the employment contract required DiNardo to ask Vanderbilt’s athletic director for permission to speak with another school about a coaching position, and Hoolahan testified that granting a coach permission to talk to another school about a position was a “professional courtesy.” Thus, the parties certainly contemplated that DiNardo could explore other coaching positions, and indeed even leave Vanderbilt, subject to the terms of the liquidated damage provision. See Park Place Ctr. Enterprises, Inc. v. Park Place Mall Assoc., 886 S.W.2d 113, 116 (Tenn.Ct.App.1992) (“All provisions of a contract should be construed as in harmony with each other, if such construction can be reasonably made .. .”)■ Allowing DiNardo to talk to another school did not relinquish Vanderbilt’s right to liquidated damages. III. DiNardo claims that the Addendum did not become a binding contract, and therefore, he is only liable for the one year remaining on the original contract, not the three years held by the district court. A. DiNardo argues that the Addendum did not extend section eight, or that there is at least a question of fact as to whether the Addendum extended section eight. Under Tennessee law, the rights and obligations of contracting parties are governed by their written agreements. Hillsboro Plaza Enterprises v. Moon, 860 S.W.2d 45, 47 (Tenn.Ct.App.1993). When the agreement is unambiguous, the meaning is a question of law, and we should enforce the agreement according to its plain terms. Richland Country Club, Inc. v. CRC Equities, Inc., 832 S.W.2d 554, 557 (Tenn.Ct.App.1991). DiNardo argues that the original employment contract explicitly provides that section eight is limited to “the entire term of this five-year contract,” and the plain, unambiguous language of the Addendum did not extend section eight. He points out that the Addendum did not change the effective date in section eight, unlike other sections in the contract. The plain and unambiguous language of the Addendum read in its entirety, however, provides for the wholesale extension of the entire contract. Certain sections were expressly amended to change the original contract expiration date of January 5, 1996, to January 5, 1998, because those sections of the original contract contained the precise expiration date of January 5, 1996. The district court did not err in concluding that the contract language extended all terms of the original contract. B. DiNardo also claims that the Addendum never became a binding contract because Larry DiNardo never expressly approved its terms. DiNardo contends that, at the very least, a question of fact exists as to whether the two-year Addendum is an enforceable contract. The district court concluded that the Addendum was enforceable as a matter of law because the parties acted as though the contract had been extended and because Larry DiNardo never objected to the Addendum. See 974 F.Supp. at 644. Under Tennessee law, parties may accept terms of a contract and make the contract conditional upon some other event or occurrence. See Disney v. Henry, 656 S.W.2d 859, 861 (Tenn.Ct.App.1983). DiNardo argues that the Addendum is not enforceable because it was contingent on Larry DiNardo’s approval. Vanderbilt responds that the undisputed facts establish that there was no condition precedent to the Addendum’s enforceability. Vanderbilt first points out that DiNardo did not make this argument until late in the litigation, and more importantly did not make this argument when Vanderbilt initially requested payment from Di Nardo in January 1995. Vanderbilt also contends that if Larry DiNardo found any of the language in the simple two-page Addendum objectionable, he should have objected immediately. Finally, Vanderbilt argues that if we decide that Larry DiNardo’s approval was a condition precedent to enforceability, the condition was satisfied by Larry DiNardo’s failure to object. In Disney, the defendants sent a mail-gram accepting a buyer’s offer on their house “subject to review” of the actual sales contract. Although the court held that the contract could be conditioned on final approval of the sales contract, the court enforced the contract because the defendants’ failure to object within a reasonable time validated the acceptance. Id. at 860. Viewing the evidence in the light most favorable to DiNardo, as we must, we are convinced that there is a disputed question of material fact as to whether the Addendum is enforceable. There is a factual dispute as to whether Larry DiNardo’s approval of the contract was a condition precedent to the Addendum’s enforceability. Gerry DiNardo testified that he told Hoolahan that the contract extension was not “final” until Larry DiNardo looked at it. Hoolahan’s testimony on this point was consistent with DiNardo’s: “He [Gerry DiNardo] said that he wanted to discuss the matter with you [Larry DiNardo], which I said certainly.” Furthermore, although Callison’s version of Larry DiNar-do’s role in the preparation of the contract extension differs from DiNardo’s, it is undisputed that on August 25, nine days after Gerry DiNardo signed the Addendum, Callison sent Larry DiNardo an unsigned copy of the “draft Addendum.” The cover sheet on a fax sent by Callison to DiNardo on September 27 closes with: “I would like your comments on the contract extension.” From these facts, a jury could conclude that Larry DiNardo’s approval was required before the Addendum became a binding contract. Of course, there is evidence that the Addendum was not contingent on Larry DiNardo’s approval. Gerry DiNardo told others that he was happy with his contract extension, and Larry DiNardo never objected to the Addendum. This evidence, however, does not carry the day, because we view the evidence on summary judgment in the light most favorable to DiNar-do and resolve all factual disputes in his favor. See Birgel, 125 F.3d at 950. Likewise, Larry DiNardo’s failure to object to the Addendum may have constituted acceptance of the Addendum’s terms, see, e.g., Disney, 656 S.W.2d at 861, but on this record, we cannot resolve the issue on summary judgment. There is evidence from which a jury could find that Larry DiNardo’s failure to object did not amount to acceptance of the Addendum. First, in contrast to Disney, 656 S.W.2d at 860-61, there is evidence explaining DiNardo’s delay. The parties were primarily negotiating the radio and television contract during the fall of 1994. Callison testified that he could not recall whether he had any conversations with DiNardo in September about the contract extension. He explained: “The hot issue, if you will, was the radio and television contract. That was what was on my mind.” It is not unreasonable to infer that the parties had not completely negotiated the details of the contract extension; the original contract did not expire for another year. On September 27, Callison asked Larry DiNardo for “his comments” on the contract extension. A jury could conclude from this solicitation that even Vanderbilt did not believe that the Addendum had been approved and was enforceable as of that time. We cannot say that Larry DiNar-do’s failure to object by December 12, 1994, constitutes an acceptance of the Addendum as a matter of law. Accordingly, we affirm the district court’s judgment that the contract contained an enforceable liquidated damage provision, and we affirm the portion of the judgment reflecting damages calculated under the original five-year contract. We reverse the district court’s judgment concluding that the Addendum was enforceable as a matter of law. We remand for a resolution of the factual issues as to whether Larry DiNardo’s approval was a condition precedent to the enforceability of the Addendum and, if so, whether the condition was satisfied by Larry DiNardo’s failure to object. We affirm in part, reverse in part, and remand the case to the district court for further proceedings consistent with this opinion. . Judge Clay's separate opinion concurs in Parts I and II and dissents from Part III of the court's opinion. Judge Nelson’s separate opinion concurs in Parts II and III and dissents from Part I of the court's opinion. . Section nine provided: The parties agree that should another coaching opportunity be presented to Mr. DiNardo or should Mr. DiNardo be interested in another coaching position during the term of this Contract, he must notify the University’s Director of Athletics of such opportunity or interest and written permission must be given to Mr. DiNardo by the Director of Athletics before any discussions can be held by Mr. DiNardo with the anticipated coaching-position principal. . Vanderbilt contends that DiNardo waived this defense because it was not suggested until DiNardo's deposition on October 28, 1996, and not brought before the court until DiNar-do filed his amended answer in May, 1997. The district court considered DiNardo's theory of defense, however, and we review the district court’s grant of leave to amend under an abuse of discretion standard. See United States v. Midwest Suspension and Brake, 49 F.3d 1197, 1201 (6th Cir.1995). . In general, parol evidence is admissible to show that a condition must be satisfied before a written contract will take effect. See Ware v. Allen, 128 U.S. 590, 594, 9 S.Ct. 174, 32 L.Ed. 563 (1888) (written contract subject to approval by attorney). DAVID A. NELSON, Circuit Judge, concurring in part and dissenting in part. If section eight of the contract was designed primarily to quantify, in an objectively reasonable way, damages that the university could be expected to suffer in the event of a breach, such damages being difficult to measure in the absence of an agreed formula, the provision is enforceable as a legitimate liquidated damages clause. If section eight was designed primarily to punish Coach DiNardo for taking a job elsewhere, however, the provision is a penalty unenforceable under Tennessee law. My colleagues on the panel and I are in agreement, I believe, on both of these propositions. We disagree, however, as to section eight’s primary function. It seems to me that the provision was designed to function as a penalty, not as a liquidation of the university’s damages. Insofar as the court holds otherwise, I am constrained to dissent. In all other respects, I concur in Judge Gibson’s opinion and in the judgment entered pursuant to it. My principal reasons for viewing section eight as a penalty are these: (1) although the damages flowing from a premature resignation would normally be the same whether or not Coach DiNardo took a job elsewhere, section eight does not purport to impose liability for liquidated damages unless the coach accepts another job; (2) the section eight formula incorporates other variables that bear little or no relation to any reasonable approximation of anticipated damages; and (3) there is no evidence that the parties were attempting, in section eight, to come up with a reasonable estimate of the university’s probable loss if the coach left. I shall offer a few words of explanation on each of these points. Section eight does not make Coach DiNardo liable for any liquidated damages at all, interestingly enough, unless, during the unexpired term of his contract, he “is employed or performing services for a person or institution other than the University.... ” But how the coach spends his post-resignation time could not reasonably be expected to affect the university’s damages; should the coach choose to quit in order to lie on a beach somewhere, the university would presumably suffer the same damages that it would suffer if he quit to coach for another school. The logical inference, therefore, would seem to be that section eight was intended to penalize the coach for taking another job, and was not intended to make the university whole by liquidating any damages suffered as a result of being left in the lurch. This inference is strengthened, as I see it, by a couple of other anomalies in the stipulated damages formula. First, I am aware of no reason to believe that damages arising from the need to replace a prematurely departing coach could reasonably be expected to vary in direct proportion to the number of years left on the coach’s contract. Section eight, however, provides that for every additional year remaining on the contract, the stipulated damages will go up by the full amount of the annual take-home pay contemplated under the contract. Like the “other employment” proviso, this makes the formula look more like a penalty than anything else. Second, the use of a “take-home pay” measuring stick suggests that the function of the stick was to rap the coach’s knuckles and not to measure the university’s loss. Such factors as the number of tax exemptions claimed by the coach, or the percentage of his pay that he might elect to shelter in a 401(k) plan, would obviously bear no relation at all to the university’s anticipated damages. Finally, the record before us contains no evidence that the contracting parties gave any serious thought to attempting to measure the actual effect that a premature departure could be expected to have on the university’s bottom line. On the contrary, the record affirmatively shows that the university did not attempt to determine whether the section eight formula would yield a result reasonably approximating anticipated damages. The record shows that the university could not explain how its anticipated damages might be affected by the coach’s obtaining employment elsewhere, this being a subject that the draftsman of the contract testified he had never thought about. And the record shows that the question of why the number of years remaining on the contract would have any bearing on the amount of the university’s damages was never analyzed either. In truth and in fact, in my opinion, any correspondence between the result produced by the section eight formula and a reasonable approximation of anticipated damages would be purely coincidental. What section eight prescribes is a penalty, pure and simple, and a penalty may not be enforced under Tennessee law. On remand, therefore, in addition to instructing the district court to try the factual questions identified in Judge Gibson’s opinion, I would instruct the court to determine the extent of any actual damages suffered by the university as a result of Coach DiNar-do’s breach of his contract. Whether more than the section eight figure or less, I believe, the university s actual damages should be the measure of its recovery. CLAY, Circuit Judge, concurring in part and dissenting in part. Because I would affirm the ruling below in all respects, I dissent from Part III.B of the court’s opinion. 'Even if we conclude that the approval of the contract extension by Larry DiNardo, Gerry DiNardo’s brother and attorney, was a condition precedent to the enforceability of the Addendum, a grant of summary judgment on behalf of Vanderbilt was appropriate because relevant circumstantial and direct evidence support the conclusion that the contract was agreed upon. This evidence, combined with Larry DiNardo’s failure to object to the contract extension, causes me to conclude that summary judgment was properly granted. The Court’s opinion correctly notes that in Disney v. Henry, 656 S.W.2d 859 (Tenn.Ct.App.1983), the state court held that where enforcement of a sales contract was expressly conditioned on the sellers’ final approval, the sellers’ failure to object to the terms and conditions of the contract within a reasonable time validated the acceptance. Disney, 656 S.W.2d at 861. However, the Court’s opinion fails to note that in determining that a reasonable time had lapsed, the state court relied exclusively on the fact that the sellers had allowed the buyers to take concrete steps in reliance on the contract. Id. at 860-61. Particularly in this light, the facts on record establish that Larry DiNardo’s failure to object validated his brother’s acceptance of the contract. Following lopsided losses by Vanderbilt’s football team to close out the 1993 season, there was rampant speculation that Gerry DiNardo would be fired. The magazine 'Sports Illustrated listed him as a coach on the “hot seat.” By early 1994, Vanderbilt’s athletic department became aware that the coach’s status was becoming “more and more of an issue in recruiting.” This evidence indicates that due to this concern about the coach’s status, Vanderbilt initiated contract extension discussions specifically in order to quiet speculation of instability in the football program. As a result, Vanderbilt announced the signing of the Addendum almost immediately — presumably to quell the rumors of Gerry DiNardo’s impending dismissal. Local sports columnists applauded the move precisely because it put to rest rumors of the coach’s firing and the possibility of ensuing instability. Even more significantly, the coach himself confirmed that the deal was done. In remarks published on August 20, 1994, Gerry DiNardo expressed his happiness with the contract extension and his relief that this issue had been settled. Among other things, the coach said: [The extension] sends a message publicly that I’ve known right along, that [the athletic director] and the chancellor are very supportive of us.... I want less distraction, less public controversy, and the best way to do that is to keep myself out of the picture with the public as much as possible. I don’t want people talking about me, about external parts of football. I want our players to be the focus. I always felt they were committed, but actually having it makes me feel big time happy. I remember when we were at Colorado and they gave [the head coach an extension] after three years. It means a lot to our assistants. It’s pretty important when someone does that for you. Then, it’s easy to circle the wagons and identify the enemy. There is no second-guessing. Vanderbilt and Gerry DiNardo thus both took steps immediately in rebanee on the Addendum by moving forcefully to put to rest any uncertainty about the coach’s job security and potential instability in the football program. Indeed, Gerry DiNardo’s pronouncement embracing the contract extension renders Larry DiNardo’s failure to object to Vanderbilt’s announcement of the extension particularly significant. Vanderbilt asked Larry DiNardo in late August and again in late September of 1994 for any comments he might have on the Addendum. (This occurred after Gerry DiNardo had already signed the Addendum extending his contract on August 17, 1994, but had informed Vanderbilt that notwithstanding the fact that he had signed the extension, he still would like to have his brother review it.) Larry DiNardo said nothing — even though the coach had already pubbely expressed his happiness that the extension was complete and Vanderbilt had announced the extension to the world. Taking all of these facts into account, and viewing this evidence in the light most favorable to the defendant, I would hold that Larry DiNardo’s failure to object to the Addendum validated the coach’s acceptance, even assuming that Gerry DiNar-do’s acceptance was initially conditional in nature, and so put the Addendum into effect. Accordingly, I concur in the Court’s opinion with the exception of Part III.B, from which I dissent for the reasons set forth above.

JERRY E. SMITH, Circuit Judge: The Container Store appeals the remand of Andre Copling’s breach of contract claim. Because Congress has denied us jurisdiction over appeals from such remands, we dismiss the appeal. I. Copling was an employee of The Container Store, Inc. (“the Store”), which had established a plan that provides employees and their dependants with medical benefits, one of which is a “flexible benefit” that allows employees to deduct pretax dollars from their paycheck to cover eligible medical expenses. The deducted money is placed in a healthcare reimbursement account, from which the employee may draw funds for eligible expenses. In compliance with tax regulations, any unused funds in the account at the end of the plan year must be forfeited. Copling informed the Store that he planned to have some orthodontic work performed. The Store alleges that he entered into a flexible benefit plan providing for the Store to deduct $1,500 from his salary to fund unreimbursed medical and dental expenses; Copling signed a form, entitled “The Container Store 1995 Flexible Benefit Enrollment Form,” authorizing these deductions and providing that any contributions not used during the plan year are- forfeited. Copling was paid $300 from the account for orthodontic expenses. Copling argues that he was not informed that any unused funds would be forfeited. He thought he bargained for. a simple pay roll deduction to fund unreimbursed medical expenses, but the Store gave him an ERISA health care reimbursement account instead. The Store contends that Copling forfeited the remainder of the money pursuant to the terms of the plan. Copling filed a breach of contract action in state court. The Store removed to federal court and sought summary judgment. The district court granted Copling’s motion to remand. II. The Store seeks reversal on the ground that Copling’s claim is not subject to the doctrine of conflict preemption. Because we conclude that the district court remanded because it decided that it was without subject matter jurisdiction, we have no appellate jurisdiction and thus cannot reach the merits of the conflict preemption issue. A. We must examine the basis of our appellate jurisdiction, sua sponte if necessary. See Castaneda v. Falcon, 166 F.3d 799, 801 (5th Cir.1999); Jones v. Collins, 132 F.3d 1048, 1051 (5th Cir.1998). Likewise, a district court must inquire into its jurisdiction, even if the parties have not questioned it. See Free v. Abbott Labs., Inc., 164 F.3d 270, 272 (5th Cir.1999). A well-pleaded complaint raising a federal question provides one basis for subject matter jurisdiction. B. As we recently explained in McClelland v. Gronwaldt, 155 F.3d 507 (5th Cir.1998), there are two types of preemption under ERISA. First, ERISA may occupy a particular field, resulting in complete preemption under § 502(a), 29 U.S.C. § 1132(a). See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); McClelland, 155 F.3d at 516-17. This functions as an exception to the well-pleaded complaint rule; “Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character.” Metropolitan Life, 481 U.S. at 64-65, 107 S.Ct. 1542. Section 502, by providing a civil enforcement cause of action, completely preempts any state cause of action seeking the same relief, regardless of how artfully pled as a state action. Furthermore, because such a claim presents a federal question, it provides grounds for a district court’s exercise of jurisdiction on removal from a state court. If the plaintiff moves to remand, all the defendant has to do is demonstrate a substantial federal claim, e.g., one completely preempted by ERISA, and the court may not remand. Once the court has proper removal jurisdiction over a federal claim, it may exercise supplemental jurisdiction over state law claims, see 28 U.S.C. § 1367, even if it dismisses or otherwise disposes of the federal claim or claims. C. At issue here, however, is conflict preemption, also known as ordinary preemption, under § 514. See 29 U.S.C. § 1144. “State law claims which fall outside the scope of ERISA’s civil enforcement provision, § 502, even if preempted by § 514(a), are still governed by the well-pleaded complaint rule and, therefore, are not removable under the complete-preemption principles established in Metropolitan Life.” Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 355 (3d Cir.1995). Conflict preemption simply fails to establish federal question jurisdiction. Rather than transmogrifying a state cause of action into a federal one, as occurs with complete preemption, conflict preemption serves as a defense to a state action. “When the doctrine of complete preemption does not apply, but the plaintiffs state claim is arguably preempted under § 514(a), the district court, being without removal jurisdiction, cannot resolve the dispute regarding preemption. It lacks power to do anything other than remand to the state court where the preemption issue can be addressed and resolved.” Dukes, 57 F.3d at 355 (citing Franchise Tax Bd., 463 U.S. at 27-28, 103 S.Ct. 2841). Hence, when a complaint raises state causes of action that are completely preempted, the district court may exercise removal jurisdiction; but when a complaint contains only state causes of action that the defendant argues are merely conflict preempted, the court must remand for want of subject matter jurisdiction. When a complaint raises both completely preempted claims and arguably conflict preempted claims, the district court may exercise removal jurisdiction over the completely preempted claims and supplemental jurisdiction over the remaining claims. D. The Store contends only that ERISA conflict-preempts Copling’s claim. It nowhere cites § 502, but does cite to § 514(a) and relies on conflict-preemption arguments and authority. Because con- fliet preemption does not function as an exception to the well-pleaded complaint rule, the district court had no federal claims before it at any time. It never had valid subject matter jurisdiction. It had an obligation, therefore, to remand immediately. See § 1447(c). The court did not remand immediately; instead, it commented that ERISA conflict-preempted none of the claims and then remanded. Nonetheless, the district court did remand pursuant to § 1447(c) because it lacked subject matter jurisdiction. Copling’s remand motion explicitly seeks remand pursuant to § 1447(c). Furthermore, the district court noted that it could hear the motion, untimely filed more than thirty days after removal, only because it was based on a lack of subject matter jurisdiction. It stated no other ground for the remand. E. Given this background, we must decide whether we have jurisdiction to review the order of remand. We begin with 28 U.S.C. § 1447(d), which provides, “An order remanding a case to State court from which it was removed is not renewable on appeal or otherwise....” Interpreted in pari materia with § 1447(c), this indicates that an appellate court lacks jurisdiction to review a remand under § 1447(c); conversely, remands on other grounds may be reviewed. Reviewable non-§ 1447(c) remands constitute a narrow class of cases, meaning we will review a remand order only if the district court “clearly and affirmatively” relies on a non- § 1447(c) basis. See Soley, 923 F.2d at 409; see also Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1027 (5th Cir.1991). Under § 1447(d), we may not review a § 1447(c) remand, based on a putative want of jurisdiction, even if the district court’s remand is plainly erroneous. See Thermtron, 423 U.S. at 351, 96 S.Ct. 584; Angelides, 117 F.3d at 836; Tillman, 929 F.2d at 1028; Soley, 923 F.2d at 408. We refuse to review even erroneous remands, “to prevent delay through protracted litigation of jurisdictional issues.” Id. Although the district court, however briefly and without preclusive effect, mistakenly felt compelled to address conflict preemption, it also properly remanded for want of jurisdiction. We cannot review this § 1447(c) remand under § 1447(d). F. The Store seeks to avoid § 1447(d) by arguing that we can review the merits as separable from, and collateral to, the remand. We cannot. In Angel-ides, we explained that an order is separable, and hence appealable notwithstanding § 1447(d), if two conditions are satisfied: “First, it must precede the order of remand in logic and in fact, so as to be made while the district court had control of the case. Second, the order sought to be separated must be conclusive. An order is conclusive if it will have the preclusive effect of being functionally unreviewable in the state court.” Angelides, 117 F.3d at 837 (citations and quotations omitted); see also Soley, 923 F.2d at 409-10. The instant order meets neither condition. As we held in Soley when we dismissed the same argument: [T]he rejection of an ERISA preemption defense does not “in logic and in fact” precede a remand order because, under the “well-pleaded complaint” rule, a defense does not confer removal jurisdiction. Instead, if the district court considered the preemption defense, it did so only because of an erroneous belief that the defense was relevant to the jurisdictional issue.... In this case, ... because we interpret the remand order as jurisdictional, the state court will have an opportunity to consider the appellants’ preemption defense and the district court’s order will have no preclu-sive effect. M The Store offers no ground for distinguishing Soley, and we know of none. The discussion of ERISA conflict preemption is not a separable, appealable order. Because the district court remanded pursuant to § 1447(c), the appeal is DISMISSED for want of jurisdiction under § 1447(d). . See the Employee Retirement and Income Security Act of 1974 ("ERISA”), 29 U.S.C. §§ 1001 etseq. . See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”); see also Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152-54, 29 S.Ct. 42, 53 L.Ed. 126 (1908) (explaining well-pleaded complaint rule). . As in McClelland, we make no comment on the breadth of ERISA’s complete preemption under § 502(a). See McClelland, 155 F.3d at 517 n. 34. . See 28 U.S.C. § 1441 (providing for exercise of removal jurisdiction whenever district court could have exercised original jurisdiction); 29 U.S.C. § 1132(f) (conferring federal jurisdiction over ERISA civil enforcement claims); see also, e.g., Anderson v. Electronic Data Sys. Corp., 11 F.3d 1311, 1315 (5th Cir.1994) (holding that state claim that falls within § 502 civil enforcement provision is a federal claim, creating removal jurisdiction). . See also Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23-27, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (holding that preemption under § 514(a) does not permit a defendant to remove where the plaintiff's state claim falls without the scope of ERISA's civil remedy provisions); McClelland, 155 F.3d at 516. . See Soley v. First Nat’l Bank of Commerce, 923 F.2d 406, 408-09 (5th Cir.1991) (relying on distinction between complete preemption and preemption defense and holding that defense does not confer removal jurisdiction); see also Rice v. Panchal, 65 F.3d 637, 639-40 (7th Cir.1995) (noting that if issue is "merely” conflict analysis, it serves only as a defense, and the complaint is not recharacterized as federal). . See also Soley, 923 F.2d at 409 (holding that, because remand after rejection of complete preemption is jurisdictional, district court's comments on substantive preemption defense are irrelevant); 28 U.S.C. § 1447(c) (stating that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded”). This assumes that the court lacks an independent basis for original jurisdiction, such as diversity under 28 U.S.C. § 1332. . See, e.g., Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 241 (5th Cir.1990) (ensuring that § 502 preemption of one claim provides basis for jurisdiction, and then addressing conflict preemption of supplemental claims). . The Store insists that it has preserved an argument of complete preemption and asks us to decide that issue for the first time on appeal. The record does not support the Store's assertion that it has argued complete preemption all along. The removal notice discusses only the "relates to” language of ordinary preemption; it does not allege complete preemption. The first amended answer to the complaint raises the affirmative defense of ERISA preemption pursuant to 29 U.S.C. §§ 1144 et seq. But complete preemption arises from 29 U.S.C. § 1132, not § 1144; and it is not an affirmative defense. The Store’s response to the remand motion again discusses the "relates to” standard of ordinary preemption and nowhere mentions complete preemption under § 502; the same is true of the Store’s summary judgment motion. Although we invited the Store to address whether it had raised and preserved a complete preemption argument, the Store has failed to cite a single place in the record where it previously had raised the argument, but rather merely asserts that the argument is preserved and proceeds to make it. This legerdemain of parlaying an ordinary preemption argument into a new complete preemption argument does not suffice. . More properly, the court should have remanded without making any further determination; the state court can resolve whether the conflict preemption defense applies. Because the court lacked jurisdiction, its comments on ordinary preemption are void and can be ignored by the state court. See Bogle v. Phillips Petroleum Co., 24 F.3d 758, 762 (5th Cir.1994) (holding that order granting partial nonsuit "is void and of no effect" because district court lacked subject matter jurisdiction after deciding it had no federal ERISA claims); Soley, 923 F.2d at 409 (holding that, because remand was jurisdictional, court's statements on substantive ERISA preemption defense would have no preclusive effect on state court consideration of the same issue). We likewise make no comment on the merits of the preemption defense. . See Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995); Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S,Ct. 584, 46 L.Ed.2d 542 (1976); see also, e.g., Angelides v. Baylor College of Med., 117 F.3d 833, 835-36 (5th Cir.1997); Soley, 923 F.2d at 407-08. . Cf. Bogle, 24 F.3d at 762 (5th Cir.1994) (dismissing appeal of remand that discussed discretionary factors because the district court had indicated its lack of a federal claim, and noting that "[t]he critical distinction for determining appealability is the presence of federal subject matter jurisdiction prior to the order of remand.”). . Cf. Mitchell v. Carlson, 896 F.2d 128, 131-34 (5th Cir.1990) (reviewing portion of remand order that resubstituted an individual defendant for the United States, and thus destroyed diversity jurisdiction, because it necessarily preceded the remand and would not be reviewed by the state court). . The Store argues that McClelland's “two-step inquiry” into complete preemption requires finding ordinary preemption before ad- „ dressing whether the claim falls within § 502(a). It then argues that a rejection of an ordinary preemption defense in this process constitutes a separable, appealable order. The Store’s argument eviscerates § 1447(d)'s, limitation on appeals from jurisdictional remands in ERISA preemption cases, making all rejected preemption claims appealable whenever the court discusses ordinary preemption. In McClelland, we described complete preemption as a "two-prong[ed] analysis” that requires finding the claim both (1) preempted within the meaning of § 514 (ordinary preemption) and (2) within § 502(a)’s civil-enforcement provisions. McClelland, 155 F.3d at 517. Because a claim that falls within § 502(a)'s civil enforcement provisions usually, if not always, also will be preempted by § 514(a), a district court addressing complete preemption in a jurisdictional posture might address preemption the same way we did in McClelland — assume, arguendo, ordinary preemption and address whether the claim falls within the scope of § 502(a). Cf. id. Indeed, the Supreme Court in Metropolitan Life addressed only § 502, ignoring conflict preemption under § 514. See Metropolitan Life, 481 U.S. at 63-66, 107 S.Ct. 1542. If the court finds no preemption under § 502(a), it may remand without commenting on the ordinary preemption defense. But when a court addresses the two prongs sequentially, the ordinary preemption step does not become a separable, appealable order; it remains part of the jurisdictional analysis. When a court mistakenly feels compelled to address ordinary preemption even though complete preemption is not argued, and yet remands for want of subject matter jurisdiction, its error is irrelevant, and § 1447(d) denies us-jurisdiction on appeal. . WIENER, Circuit Judge, specially concurring: I concur in the foregoing opinion, but I write separately (1) to emphasize the narrowness of our holding .today, (2) to encourage the state court to which this case is remanded to recognize that counsel for Copling so grossly mischaracterized his client’s cause of action as a state breach of contract claim as to approach frivolousness; the most cursory of looks at the legal document executed by Copling, a competent major, confirms beyond cavil that he voluntarily signed an enrollment document in a dental plan that is governed exclusively by ERISA, (3) to furnish additional guidance to the courts and the litigants regarding the interplay of ERISA preemption and the federal removal statute, and (4) to note the importance of carefully pleading the appropriate type of preemption — conflict or complete — in cases such as this. First, in concurring in the foregoing panel opinion, I start with the observation that we are reaffirming the well-established principle that 28 U.S.C. § 1447(d) precludes absolutely our review of a district court’s order that, pursuant to § 1447(c), remands a case to state court for lack of subject matter jurisdiction. As the panel opinion, correctly notes, not only is there no appellate jurisdiction to review such a remand, but a district court that concludes it lacks jurisdiction necessarily cannot adjudicate on the merits any issue of ERISA conflict preemption. And, as I observe below, conflict preemption is the only kind of preemption that the parties have placed before the district court in this case. Second, I acknowledge the important corollary that, when an action is timely removed under § 1441(a), the district court to which it has been removed does have jurisdiction to decide whether a claim is completely preempted by ERISA, thereby making remand improper. Importantly, in considering complete preemption, the district court is not — I repeat, not — bound by a plaintiffs self-serving characterization of his claim; on the contrary, the court can determine for itself whether in actuality the claim asserted arises under an employee benefit plan covered by ERISA. I cannot determine with any degree of certainty whether the able trial judge in this case simply accepted the plaintiffs characterization of his claim as breach of contract under state law, in a mistaken belief that the court was somehow bound under the well-pleaded complaint doctrine (which it was not), or if the court just failed to consider and discern the true ERISA nature of the plaintiffs complaint. I am satisfied, however, that the district court was not bound to accept unquestioningly Copling’s allegation that he entered into a contract with his employer separate and apart from the very ERISA plan in which he enrolled, expressly and in writing. The court quite properly could have considered whether Copling signed an election to have payroll deductions used to fund his participation in the subject ERISA-covered medical and dental plan (action that the limited record in this case clearly confirms that he took), and could then have treated the claim — as none other than Copling himself elsewhere characterized it — as one for “misrepresentation of the terms of the Plan,” undeniably a claim exclusively grist for the ERISA mill. The saving grace of this misstep is that our colleague on the state bench to which this case is remanded will have ample opportunity to correct it. Finally, I would urge the district courts of this Circuit to remain mindful of the important burden they bear as a result of the interaction of § 1447 and ERISA preemption: As § 1447(d) does not permit appellate review of a remand order based on a conclusion that no complete preemption exists, it is incumbent on the district courts, when considering remand motions, to decide complete preemption issues with the utmost of care, and — importantly—to do so without addressing any conflict preemption issue that might remain as an affirmative defense to be resolved subsequently, regardless of whether the case is remanded to state court or retained in federal court. In like manner, lawyers representing defendants who are relying on ERISA preemption should remain ever mindful that a federal district court cannot decide a question of complete preemption unless it is asked to do so by a party — the court cannot “lawyer” the case on its own. As, alone, conflict preemption will not sustain removal, it is the responsibility of counsel for a defendant who seeks to remain in federal court by meeting its burden of justifying remand, to articulate clearly and with specificity — and to establish — a viable argument for complete preemption. Even though a complete preemption issue clearly lurks in the record of this case, it was not presented to the district court. Thus, that court’s order of remand resolves no preemption issue of any kind. Unless I miss my bet, however, conflict preemption will be presented lucidly to the state court on remand, where our learned state colleagues will, I am confident, address these matters and decide them correctly. . See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 53, 66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Hansen v. Continental Ins. Co., 940 F.2d 971, 979 (5th Cir.1991).

LAY, Circuit Judge: This appeal stems from a restitution order imposed upon Douglas Phillips after he pled guilty to one count of subscribing to a false income tax return and one count of assisting in the preparation of a false income tax return, in violation of 26 U.S.C. § 7206(1) & (2). The district court sentenced Phillips to two years imprisonment and entered an order for Phillips to pay $831,400 in restitution. Phillips appeals the order for restitution. On May 23, 1996, an original indictment was filed charging Douglas Phillips with various securities and tax fraud violations. On September 4, 1997, Douglas Phillips pled guilty to two counts of tax fraud pursuant to a plea agreement with the government. As part of this agreement, which included a waiver of appeal clause, the government dropped the counts of securities fraud. The plea agreement stated that the district court could order restitution against Phillips for the full loss caused by his activities, that restitution was not limited to’ the amounts found in the counts to which Phillips was pleading guilty, and that the amount of restitution would be determined by the district court at the time of sentencing. At sentencing, the district court rejected the government’s argument that Phillips’ stock market manipulation scheme was relevant conduct pursuant to sentencing guideline § IB 1.3 and denied the government’s request for a two-level enhancement on that basis. The court, however, went on to find that it could order restitution for the victims of the stock fraud scheme under 18 U.S.C. § 3663(a)(3) because Phillips agreed under the plea agreement that restitution was not “restricted to the amounts alleged in the counts to which you are pleading guilty.” The court imposed restitution of $831,400 to be paid to a victim restitution fund administered by the SEC and sentenced Phillips to twelve months imprisonment and one year of supervised release. On appeal, Phillips contends that the district court exceeded its authority in ordering restitution for alleged acts of securities fraud to which he did not plead guilty. He argues that the restitution order should, therefore, be limited to the approximately $70,000 in lost tax revenue. Specifically, he alleges that (1) the district court’s restitution order exceeded the scope of the district court’s authority under the Victim and Witness Protection Act (“VWPA”) and also exceeded the intended scope of the plea agreement, (2) the district court erred by not taking into account his ability to pay; and (3) the government failed to establish by a preponderance of the evidence that Phillips violated the securities laws. DISCUSSION Waiver of Appeal The government contends that Phillips waived his right to appeal the restitution order as part of his plea agreement. Whether a defendant has waived his statutory right to an appeal is an issue of law subject to de novo review. United States v. Zink, 107 F.3d 716, 717 (9th Cir.1997). The waiver clause in the agreement provided in part: “[Y]ou knowingly and voluntarily waive your right to appeal any sentence and restitution order imposed by the Court and the manner in which the Court determines your sentence and restitution order, so long as the sentence is up to a net offense level of 12 following an adjustment for acceptance of responsibility.” The government argues that because Phillips was sentenced based on the net offense level of 10, he waived his right to appeal the restitution order. We disagree. Plea agreements are governed by contract principles. United States v. Gerace, 997 F.2d 1293, 1294 (9th Cir.1993). Thus, in interpreting plea agreements, “the government is to be held to the literal terms of the agreement ... and ordinarily must bear responsibility for any lack of clarity.” United States v. Anderson, 970 F.2d 602, 607 (9th Cir.1992), as amended, 990 F.2d 1163 (1993) (citations omitted). In this case, the waiver of appeal does not include a cap on restitution. United States v. Blitz, 151 F.3d 1002, 1005-6 (9th Cir.1998), cert. denied sub nom., Marie v. United States, — U.S. -, 119 S.Ct. 567, 142 L.Ed.2d 473 (1998)(holding that the defendant waived the right to appeal a restitution order as long as the order did not exceed $481,000 as provided in the plea agreement). It is true that a court can impose restitution when the plea agreement is silent as to the amount of restitution as long as the amount is based on actual damages. United States v. Parrott, 992 F.2d 914, 917 (9th Cir.1993). Allocating actual damages in this manner, however, carries with it a requirement of notice to the defendant. Id. Notice was absent in this case due to the ambiguous nature of the plea agreement. In this situation, the plea agreement was unclear about exactly what the amount of actual damages would be. The plea agreement provides in part: By signing this agreement, you also agree that the Court can order you to pay restitution for the full loss caused by your activities. You agree that the restitution order is not restricted to the amounts alleged in the counts to which you are pleading guilty. The government urges that this agreement would allow the district court to include restitution for the damages related to the dismissed security counts. Another reasonable interpretation of the plea agreement, however, is that Phillips agreed that a restitution order could be based on the full extent of his tax fraud activities and that the amount of the restitution order could be greater than the amounts alleged in the counts to which he was pleading guilty. Thus, ambiguity leads to two different interpretations and does not make clear that the court could hold Phillips accountable for other activities only “tangentially” related to the tax fraud counts alleged. Cf. United States v. Riley, 143 F.3d 1289, 1290 (9th Cir.1998) (holding that “the district court was without authority to order restitution for losses only tangentially related to the criminal scheme”). Due to the two possible interpretations, we hold that the plea agreement is ambiguous regarding the amount of restitution, and therefore, the waiver of appeal of the restitution order cannot be held to have been voluntarily and knowingly entered into by the defendant. Even if Phillips had voluntarily and knowingly waived his general right to appeal, this waiver would not affect his ability to appeal a violation of the VWPA. The Fourth Circuit addressed waiver of appeal under the VWPA in United States v. Broughton-Jones, 71 F.3d 1143 (4th Cir.1995). In Broughtom-Jones, the court held that a certain appeal waiver was valid, but that it did not preclude the argument that the restitution order violated the VWPA. Broughton-Jones, 71 F.3d at 1146-49. The court stated: [A] defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court. For example, a defendant could not be said to have waived his right to appellate review of a sentence imposed in excess of the maximum penalty provided by statute or based on a constitutionally impermissible factor such as race. Id. at 1147 (citation omitted). The court reasoned that a restitution order which exceeded its authority under the VWPA is equivalent to an illegal sentence. The court then held that such a restitution order was “in excess of the maximum penalty provided by statute” and, therefore, the waiver of appeal was inapplicable to it. This reasoning also applies in this case and, therefore, Phillips’ appeal is not waived. Restitution Order Under the VWPA, a “court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3) (1990). In arguing that the parties agreed that Phillips would be liable for the full restitution amount, the government heavily relies upon United States v. Soderling, 970 F.2d 529 (9th Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct. 2446, 124 L.Ed.2d 663 (1993). In Soderling, this court upheld a restitution order for losses stemming from seven allegedly illegal transactions although the defendants only pled guilty to two. As part of the plea agreement the defendants “agreed to plead guilty to the two counts contained in the pending information and to make restitution for the losses stemming from those two offenses and from the other five transactions, all in return for the government’s agreement not to prosecute them for offenses arising out of the other five transactions.” Soderling, 970 F.2d at 531. The court held that the amount of restitution that the defendants agreed to pay was authorized by law because they agreed to the restitution in return for the government’s promise to drop the other offenses. Similarly, this exception was recognized in United States v. Baker, 25 F.3d 1452, 1456 (9th Cir.1994), wherein the court recognized, “a district court may order restitution ‘for losses stemming from offenses other than those on which there was a conviction if the' defendant agrees to such in a plea bargain in return for a promise by the government to drop or not pursue the other offenses.’ ” Baker, 25 F.3d at 1457 (citing Soderling, 970 F.2d at 532). In Baker, however, the court held that the exception recognized in Soderling did not apply. In vacating the restitution order, the court found that the plea agreement did not specifically state that the defendant agreed that the court could impose restitution beyond the losses caused by the offense conduct. Id. at 1458. The court concluded that the defendant did not agree to pay heightened restitution as consideration for the government’s dropping of the other counts. This court’s reasoning in Baker applies to this case. In Phillips’ plea agreement, he did not specifically agree to pay restitution for the securities fraud counts in exchange for the government’s promise to drop those charges. The ambiguity in the agreed upon restitution must be construed against the government to encompass only the tax fraud counts. See Anderson, 970 F.2d at 607. We, therefore, hold that the court erred in ordering restitution beyond the amounts directly related to the tax fraud counts. CONCLUSION For the foregoing reasons, we vacate the restitution order and remand for reconsideration consistent with this opinion. . Section 3663(a)(3) provides: "The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3) (1990). . In view of our holding, the other claims that Phillips makes as to his ability to pay and the standard of proof need not be decided.

MEMORANDUM OPINION ACKER, District Judge. Defendants, Piggly Wiggly Alabama Distributing Company, Inc., and Health Benefit Plan for the Employees of Piggly Wiggly Alabama Distributing Company, Inc., have filed a motion to strike the jury demand which plaintiff, Phillip N. Rhodes, filed with his action brought pursuant to § 502(a)(1) of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1). This is a relatively simple and straightforward claim by an employee beneficiary under an ERISA employee benefit plan for benefits allegedly due him. Thus, if Chilton v. Savannah Foods and Industries, 814 F.2d 620 (11th Cir.1987), still represents the law of the Eleventh Circuit, defendants’ motion to strike the jury demand should be granted. If, however, the net effect of Supreme Court decisions after Chilton is to recognize the right of jury trial in ERISA claims for benefits due, the motion should be denied. In Whitt v. Goodyear Tire & Rubber Co., 676 F.Supp. 1119 (N.D.Ala.1987), this court discussed the Seventh Amendment and ERISA at some length, and in the end only reluctantly turned from its original intention to grant a jury trial in order not to deviate from the then very recent opinion of the Eleventh Circuit in Chilton which recognized no jury trial in ERISA cases. It is what has happened to Seventh Amendment jurisprudence since Whitt and Chilton that causes this court to conclude today that the law now is what this court and other courts predicted it would be. See Whitt and Springer v. Wal-Mart Associates’ Health Plan, 714 F.Supp. 1168, 1169 (N.D.Ala.1989). It is unnecessary to repeat this court’s arguments in Whitt, arguments to which it now re-subscribes. Furthermore, this court has thoroughly expounded its reading of the Supreme Court’s post-Chilton decisions bearing on the availability of a jury trial in an action invoking a Congressional enactment not containing any provision for trial by jury and seeking relief which is not traditionally equitable. See Beesley v. The Hartford Fire Insurance Company, 717 F.Supp. 781 (N.D.Ala.1989), reconsidered at 723 F.Supp. 635 (N.D.Ala.1989); Walton v. Cowin Equipment Co., Inc., 733 F.Supp. 327 (N.D.Ala.1990); and Walker v. Anderson Elec. Connectors, 736 F.Supp. 253 (N.D.Ala.1990). Since this court wrote Whitt in 1987, other courts began to recognize trial by jury in ERISA benefit cases brought under 29 U.S.C. § 1132(a)(1). ■ In 1988, the Third Circuit acknowledged the difference between the relief’ provided in 29 U.S.C. § 1132(a)(1)(B), which is “legal,” and the relief provided in 29 U.S.C. § 1132(a)(3)(A) or (B), which is “equitable.” Cox v. Keystone Carbon Co., 861 F.2d 390 (3d Cir.1988) (citing Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987)). It remanded the case to the district court to determine whether or not the case was a simple suit under § 1132(a)(1)(B) “to recover benefits due under the plan” and thus carried a jury entitlement. Id.; see also Abbarno v. Carborundum Co., 682 F.Supp. 179 (W.D.N.Y.1988); Gangitano v. Investors Life Insurance Co., 733 F.Supp. 342 (S.D.Fla.1990); Vicinanzo v. Bruschwig & Fils, Inc., 739 F.Supp. 882 (S.D.N.Y.1990); and Porter v. Mutual Service Life Insurance Company, et al., CV 90-PT-700-S (N.D.AIa. June 26, 1990). The courts which entered these recent decisions and arrived at the conclusion that certain ERISA claims carry the Seventh Amendment right to jury trial, employed the same authorities which this court employed in Whitt, Beesley, Walton and Walker,, except for Yellow Freight System v. Donnelly, — U.S. -, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990), which was discussed only in Walker and in which the Supreme Court recognized for the first time that state courts have concurrent jurisdiction in Title VII cases. Even before Yellow Freight no one doubted that state courts have concurrent jurisdiction over claims for ERISA plan benefits under 29 U.S.C. § 1132(a)(1)(B). Thus, if a state court allows trial by jury in such ERISA cases, under the rationale of Yellow Freight can a jury trial be denied by a federal court in an identical case? This court is particularly persuaded by the following penetrating observation by Chief Judge Brieant in Vicinanzo: Perhaps because the right to a jury trial on claims of legal entitlement is so obvious, ERISA makes no express provisions for jury trials ... 739 F.Supp. at 885. How can the right to a jury trial be so obvious to Judge Brieant and to this court when so many courts have scoffed at the idea of jury trial in causes of action created by a statute that is silent on the subject? This is a hard question. The answer probably lies not only in the judiciary’s too often eagerness to do “what is right and necessary,” but also in the judiciary’s general lack of understanding of the crucial significance of the Seventh Amendment to the adoption of the Constitution. It is universally understood that the Constitution of the United States would never have been ratified without the contemporaneous inclusion of its first ten amendments, including the Seventh Amendment. Perhaps it is not as well understood that the Federal Rules of Civil Procedure probably would not have been adopted without the inclusion of Rule 38(a), which clearly affirms the Seventh Amendment’s guarantee of a trial by jury in matters involving a claim of legal entitlement. Ancient history may be more interesting than current events. In England before the American Revolution, as well as in the thirteen colonies, the meaning of the term “jury trial” included not only the right of the jurors to determine where the truth lies but also the right to ignore the law as explained by the judge if the jurors should be persuaded to adopt other guidelines for decision. The great debate between the Federalists and the Anti-Federalists, leading ultimately to the incorporation of the Bill of Rights into the Constitution, included specific reference to the crucial importance of civil jury trials. The following Anti-Federalist criticism and expression of the American fear of trial-by-judge is found in an Anti-Federalist essay of 1787 entitled, “Observations Leading to a Fair Examination of the System of Government Proposed by the Late Convention: And to Several Essential and Necessary Alterations in It”: By art. 3 sect. 1, the judicial power of the United States shall be vested in one supreme court, and in such inferior courts, as congress may, from time to time, ordain and establish — the judges of them to hold their offices during good behavi-our, and to receive, at stated times, a compensation for their services, which shall not be diminished during their continuance in office: but which, I conceive, may be increased. By the same art. sect. 2, the supreme court shall have original jurisdiction, “in all cases affecting ambassadors, and other public ministers, and consuls, and those in which a state shall be a party, and appellate jurisdiction, both as to law and fact, in all other federal causes, with such exceptions, and under such regulations, as the congress shall make.” By the same section, the judicial power shall extend in law and equity to all the federal cases therein enumerated. By the same section the jury trial, in criminal causes, except in cases of impeachment, is established; but not in civil causes ... }(: s(« sjs * * Their [the jury’s] right to determine as to facts will not be disputed and their right to give a general verdict has never been disputed, except by a few judges and lawyers, governed by despotic principles. Coke, Hale, Holt, Blackstone, DeLome, and almost every other legal or political writer, who has written on the subject, has uniformly asserted this essential and important right of the jury. Juries in Great-Britain and America have universally practised accordingly. Even Mansfield, with all his wishes about him, dare not directly avow the contrary. What fully confirms this point is, that there is no instance to be found, where a jury was ever punished for finding a general verdict, when a special one might, with propriety, have been found. The jury trial, especially politically considered, is by far the most important feature in the judicial department in a free country, and the right in question is far the most valuable part, and the last that ought to be yielded, of this trial, (footnote omitted). Juries are constantly and frequently drawn from the body of the people, and freeman of the country; and by holding the jury’s right to return a general verdict in all cases sacred, we secure to the people at large, their just and rightful controul in the judicial department. If the conduct of judges shall be severe and arbitrary, and tend to subvert the laws, and change the forms of government, the jury may check them, by deciding against their opinions and determinations, in similar cases. It is true, the freemen of a country are not always minutely skilled in the laws, but they have common sense in its purity, which seldom or never errs in making and applying laws to the condition of the people, or in determining judicial causes, when stated to them by the parties. The body of the people, principally, bear the burdens of the community; they of right ought to have a controul in its important concerns, both in making and executing the laws, otherwise they may, in a short time, be ruined. Nor is it merely this controul alone we are to attend to; the jury trial brings with it an open and public discussion of all causes, and excludes secret and arbitrary proceedings. ****** But it is said, that no words could be found by which the states could agree to establish the jury-trial in civil causes, (footnote omitted). I can hardly believe men to be serious, who make observations to this effect. The states have all derived judicial proceedings principally from one source, the British system; from the same common source the American lawyers have almost universally drawn their legal information. All the states have agreed to establish the trial by jury, in civil as well as in criminal causes. The Complete Anti-Federalist, edited with commentary and notes by Herbert J. Storing, Volume 2 (Objections of Non-signers of the Constitution and Major Series of Essays at the Outset, University of Chicago Press), pp. 316-17, 320, 321. During the early years after ratification, controversial Supreme Court Justice, Samuel Chase, while riding circuit as a trial judge, presided over the famous Callender trial and refused to allow Callender’s lawyers to argue the law to the jury. This allegedly shocking deviation from the norm was perhaps the most serious charge contained in a bill of impeachment brought by the House against Chase. Chase was tried by the Senate and barely avoided conviction and removal from judicial office. It was not until Chase’s acquittal that federal courts felt comfortable in instructing jurors not to use their own judgment as to what the law should be and instead to take the law from the judge. Thomas Jefferson, who watched Chase’s later metamorphosis from a hard-core Federalist into a moderate Republican, shared with his many Republican friends a visceral distrust of judges. It was Jefferson and his friends who insisted upon and got the Seventh Amendment. This court certainly does not quarrel with the end result of Jefferson’s demand and of Chase’s acquittal. Today, no lawyer would deny the proposition that juries should be limited to their role as triers of the facts. By the same token, the fact that Chase was brought to answer before the Senate on a charge of refusing to allow the jury to pass on the law as well as on the facts well illustrates how dear the people of his generation, the generation which ratified the Constitution, held the right to trial by jury in civil cases, and how jealously they guarded against any erosion of that right. If Chase had directed a verdict against Callender, he would surely have been impeached. It is the view of this court, shaped and colored by recent Supreme Court decisions, that the Seventh Amendment prevents Congress from creating a cause of action without affording the parties to the cause a trial by jury if that action could result in the recovery of money in excess of $20.00. Perhaps this explains why Congress has never passed any legislation which purports to deny a jury trial under such circumstances; Congress has always understood that the right to jury trial is supplied by the Seventh Amendment. A more cynical view is that Congress has believed, perhaps with some reason, that elitist judges will “do the right and necessary thing” despite the clear command of the Seventh Amendment. In other words, if a judicial elite decides that juries cannot be trusted to make the findings of fact required in an area of controversy calling for superior knowledge or a higher degree of sophistication, then there shall be no right to trial by jury. This court prefers to give Congress the benefit of the doubt and to assume that it knows that it is bound by the Constitution, and therefore to conclude that the correct explanation for the absence of any reference to jury trial in ERISA and in Title VII, insofar as claims of legal entitlement are concerned, is a conscious recognition by Congress of the Seventh Amendment imperative. The Seventh Amendment supplies the right to jury trial, making any legislative expression on the subject mere surplusage. Now surrounded by good company, including the Supreme Court, this court has lost the timidity it displayed in Whitt and will deny defendants’ motion to strike plaintiffs jury demand in this ERISA case.

OPINION AND ORDER CEDARBAUM, District Judge. This is a copyright infringement action brought by Minoru Morita against Omni Publications International, Ltd., Kan Photography Inc. and Kan Nakai. The complaint also asserts claims under Section 43(a) of the Lanham Act and Section 14.03 of the New York Arts and Cultural Affairs Law. The parties have cross-moved for summary judgment on liability. For the reasons discussed below, defendants’ motion is granted in part and denied in part and plaintiff’s motion is denied. UNDISPUTED FACTS In early 1985 Minoru Morita, a graphic artist, designed a poster for The American Peace Posters Exhibition, a project sponsored by the Shoshin Society to commemorate the fortieth anniversary of the bombing of Hiroshima. Morita commissioned glass sculptor Mi-Ion Townsend to create a glass “sculpture” of a shattered dove to be photographed for the poster. This “sculpture” is “constructed in four pieces — the two wings, the tail and torso and the head ... [Rjemnants from the glass cutting [are used] to give the appearance of the peace dove shattering in flight.” (Morita Aff., July 7, 1989, 1113.) Morita has the pieces of the “sculpture.” Kan Nakai, a well known photographer, photographed the “sculpture” and a pool of “blood” for the poster. Under his arrangement with Morita, Kan donated his services, but was reimbursed by Morita for his out-of-pocket expenses and received credit as the photographer on the poster. Kan and Morita did not have a written agreement. Kan shot the photographs for this project in two different sessions at his studio. Morita arranged and rearranged the glass pieces of the “sculpture” between shots. No assistants were used. Kan took approximately six photographs. Morita selected the photograph to be used for the poster. The completed poster consisted of a Kan photograph of the shattered dove “sculpture” and a red spot representing a pool of blood, the words “Give Peace A Chance” and “Hiroshima Appeals,” and the following credits: “Art/Design: Minoru Morita Glass Sculpture: Milon Townsend Photography: Kan Nakai.” The poster has won several awards and is part of the permanent collection of the Hiroshima Museum of Modern Art. On October 15, 1985, Morita filed an application for copyright registration of the poster “Give Peace a Chance.” On the application, Morita listed himself as the author, and described the nature of the material created by him in which copyright is claimed as “lithography and underlying photograph.” He also claimed authorship by listing himself as “Minoru Morita employer for hire of: Kan Nakai.” Under “nature of authorship” Morita explained: “employed as photographer by Minoru Morita, Kan Nakai created photographic material.” In about March of 1988, Kan authorized defendant Omni Magazine to use as the cover photograph of its May 1988 issue an "out-take” of the dove photograph, that is, one of the photographs not used in the poster. On page 4 of the magazine, the cover photograph was credited as follows: Part of the permanent collection of the Hiroshima Museum of Modern Art, the photo on this month's cover was shot by New York-based photographer Kan to commemorate the fortieth anniversary of the bombing of Hiroshima. The cover story of that issue was “Nuclear Renaissance: Reactors Are Back and the Reactions Are Good.” In October of 1988, the photograph appeared on the cover of the Japanese edition of Omni Magazine. After the commencement of this suit and after the initial submission of papers on this motion, Milon Townsend sent Morita a letter stating: This letter is to certify that previous to February, 1985 I executed for you a work for hire, one shattered dove, according to the design which you drew, and furnished me to work from. Any and all rights to the design, specifically including copyrights, belong to you. COPYRIGHT A. Prerequisite of Registration Registration of copyright with the Copyright Office is a condition precedent to suit under the Copyright Act. Section 411 of the Act provides: (a) Subject to the provisions of subsection (b), no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with this title. 17 U.S.C. § 411(a). In his complaint, Morita alleges that “[djefendants’ reproduction and distribution of copies of plaintiffs Sculpture constitutes an infringement of plaintiff's copyright therein.” (¶ 16.) Morita contends that as Townsend’s employer, he, Morita, owns the copyright in the underlying dove “sculpture,” and that only he can authorize the use of Kan’s photographic copies of the “sculpture.” Thus, in order to maintain this copyright action, Morita must have registered his copyright in the dove “sculpture.” The registration form Morita used to apply for copyright registration of the poster has a special section for derivative works in which the applicant is asked to identify any preexisting works that the work submitted for registration is based on or incorporates. Morita entered “n/a” in that section of the application for copyright registration. In fact, neither the “sculpture” nor Townsend are mentioned anywhere on the registration form. Section 102(a) of the Copyright Act provides that copyright protection is only available for works that are fixed in a tangible medium of expression. 17 U.S.C. § 102(a). Section 101 provides: A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy ..., by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration. 17 U.S.C. § 101. There is a substantial question as to whether this “sculpture” which consists of unassembled pieces of glass is fixed enough to be copyrightable. Plaintiff avoided an answer to this troublesome question both by not filing an application for registration of the dove “sculpture” itself, and by omitting any mention of that “work” in his application for registration of the poster. Moreover, it is doubtful that by registering the poster, plaintiff also registered the underlying “sculpture.” Plaintiff argues that registration of a published derivative work subsumes the underlying work and protects it when the author of the derivative work is also the author of the underlying work. Thus, Morita contends that the copyright registration application he filed served to register the underlying dove “sculpture.” Although he claims to be the author of the “sculpture,” Morita’s claim of authorship is based on an employment relationship not mentioned in the registration application. Morita points to The Compendium of Copyright Office Practices which provides that no statement is required in the “derivative works” section of the application form “unless a substantial amount of the material incorporated in the derivative work is in the public domain or has been registered or published previously.” The Compendium of Copyright Office Practices, 626.01(a), February 1988. But Morita did not leave that section blank. Rather, he completed it with the symbol for “not applicable,” thereby specifically disclaiming that he was registering the poster as a derivative work and that he was registering a copyright in any preexisting material. It is difficult to see how, under these circumstances, Morita’s application for registration of the poster served to register Morita’s copyright in the dove “sculpture.” But even if plaintiff could escape from his own words in the application form, it is apparent that the layout of the dove “sculpture” in the poster photograph is different from the arrangement of the pieces of glass in the magazine cover photograph. In fact, Morita himself argues that the two layouts differ. (Morita Aff. ¶ 23-24.) Even if the underlying “sculpture” has been registered by the poster application, the “sculpture” registered was a different “sculpture” from the one copied by defendants. Defendants’ allegedly infringing use was not, therefore, of the “sculpture” that plaintiff claims to have registered by implication. No attempt has been made to register the arrangement of the pieces of glass in the photograph that was actually used by the defendants. Without this registration, plaintiff cannot maintain suit for copyright infringement on a theory of ownership of the copyright in the underlying “sculpture.” B. Work Made for Hire I turn then to the claim that Kan’s photograph infringes Morita’s copyright in the registered poster. This claim was asserted for the first time in the summary judgment papers. It does not appear in the complaint. Nor has Morita attempted to amend the complaint to include it. Nevertheless, in the interest of judicial economy I shall consider the claim raised in Morita’s affidavit that Kan’s photographic material is “work made for hire” of which Morita is the author and registered copyright proprietor. For purposes of these motions, I conform the pleading to the proof. But plaintiff is directed to amend the complaint within ten days in order to pursue this claim. Copyright vests initially in the author of a work. 17 U.S.C. § 201(a). The Copyright Act also provides: 17 U.S.C. § 201(b). The statute defines a work made for hire as “a work prepared by an employee within the scope of his or her employment.” 17 U.S.C. § 101(1). In Community For Creative Non-Violence v. Reid, — U.S. -, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), the Supreme Court held that “to determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor.” Id. at 2178. Since the issue of agency under the copyright statute is an issue of federal law, a court should look to general principles of agency law, and not the agency law of any particular state in making this determination. Id. at 2173. In addition, the Court in Reid emphasized the importance of predictability under the copyright law and highlighted the importance of the understanding of the parties on this issue at the time the initial arrangement is made. In his affidavit in support of his motion, Morita attests that Kan had worked for him before and knew at the outset of the project that Morita would totally control the photographing of the dove “sculpture” and that in fact he exercised complete control over Kan’s physical conduct in the photographic sessions. Specifically, Morita states that he set the work schedule for the photographic sessions. He also affirms that he decided that the first series of photographs would be in black and white and that the second series would be in color. He states that he was with Kan at all times during the photographing and that he discussed the lighting and composition with Kan, and told Kan what he wanted. He attests that he laid out the glass pieces of the “sculpture” and selected the background. He also states that he told Kan what size transparencies to use, and instructed Kan to use an outside photography laboratory for developing and printing. He also affirms that he changed the composition slightly for each shot and ultimately selected the one that would be used in the poster. Morita describes Kan’s function in the preparation of the photograph as purely mechanical. Both sides seek summary judgment on this issue. Affidavits submitted by defendants contradict most of Morita’s extreme allegations. The relationship of employee and employer is not one that is capable of exact definition. Whether this relationship exists in any given case is generally an issue of fact to be determined by the trier of fact. According to section 220(1) of the Restatement (Second) of Agency: A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control. The Court in Reid suggests that courts should consider section 220(2) of the Restatement (Second) of Agency, as well as the following non-exhaustive list of factors, in making this determination: the hiring party’s right to control the manner and means of production; the skill required; the source of the instrumentalities and the tools; the location of the work; the duration of the relationship between the parties; the extent of the hired party’s discretion over when and how long to work; the method of payment; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. Id. at 2178-79. None of these factors is determinative. Id. at 2179. There is a material factual dispute between the parties both about Kan and Morita’s understanding of their roles at the outset of the project and about what actually occurred during the photographic sessions. Furthermore, even if defendants accept plaintiff’s facts as true for purposes of the motion, defendants cannot succeed as a matter of law. Similarly, if plaintiff accepts defendants’ facts as true for pur poses of their cross-motion, plaintiff cannot succeed as a matter of law. On careful examination, the facts alleged by each side are sufficient to defeat the other’s motion. Neither side presents a set of facts that entitles the other side to a decision in its favor as a matter of law. A trial is required for determination of the work for hire issue. Therefore, both motions for summary judgment on that issue are denied. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. C. Joint Authorship Defendants also move for summary judgment on the ground that the photograph in dispute was a joint work and therefore Kan was entitled to publish it without Morita’s permission. The Copyright Act provides that “a ‘joint work’ is a work prepared by two or more authors with the intention that their contribution be merged into inseparable or interdependent parts of a unitary whole.” 17 U.S.C. § 101. Each joint owner has the unrestricted right to use or license the joint work and therefore a joint owner and his licensees cannot be held liable for infringement by another joint owner. Weissmann v. Freeman, 868 F.2d 1313 (2d Cir.1989). Morita contends that he never intended to, nor did he, create a joint work. He argues that Kan’s contribution did not, and was not intended to, rise to the level of authorship. According to Morita’s affidavits, Kan acted merely as a technician, memorializing Morita’s “sculpture” with his camera. The parties raise genuine issues of material fact with respect to Morita’s and Kan’s relative contributions to the project and their intentions. Therefore, summary judgment must be denied on the issue of joint authorship. LANHAM ACT Plaintiff also claims that defendants’ use of the out-take violated Section 43(a) of the Lanham Act which forbids false designation of origin and false descriptions of goods or services. 15 U.S.C. § 1125(a). Plaintiff makes three separate arguments about how defendants’ conduct violated the Lanham Act. Defendants contend that the complaint fails to state a claim on which relief can be granted under the Lanham Act. Morita’s first Lanham Act argument is that the out-take used by Omni was inferior to the photograph selected by him for the poster and, to the extent that people recognize it as his work, use of this inferior photograph damages his reputation and violates the Lanham Act. In Gilliam v. American Broadcasting Co., 538 F.2d 14 (2d Cir.1976), the Second Circuit held that “an allegation that a defendant has presented to the public a ‘garbled,’ distorted version of plaintiff’s work seeks to redress the very rights sought to be protected by the Lanham Act, 15 U.S.C. § 1125(a), and should be recognized as stating a cause of action under that statute.” Id. at 24-25 (citation omitted). In Gilliam, the court upheld an injunction that prohibited ABC from broadcasting a truncated-version of a Monty Python show which the trial judge had found “impaired the integrity of [the original] work and represented to the public as the product of [Monty Python] what was actually a mere caricature of their' talents.” Id. at 25. The theory of Gilliam does not apply here because unlike the truncated version of the Monty Python show the photograph at issue was not altered in any way. Plaintiff’s next theory of Lanham Act liability is that he was injured by the use of the photograph of his shattered dove in connection with a pro-nuclear energy article and headline, when the dove and the photograph were created for a contrary purpose. It seems to me that plaintiff is not really complaining about a false de- scription or a false designation of origin, but rather about the allegedly unauthorized use of a photograph of which he claims authorship. This is a claim in the nature of copyright that does not fit into the mold of unfair competition. The Copyright Act provides an adequate remedy for the injury of which plaintiff complains. The Lanham Act should not be distorted to provide a remedy for a failed claim of copyright infringement. The two cases plaintiff relies on in support of his theory are inapposite. In National Bank of Commerce v. Shaklee Corp., 503 F.Supp. 533 (W.D.Texas 1980), the court applied Texas common law, not the Lanham Act, to plaintiff’s unfair competition claim. The defendant in Benson v. Paul Winley Record Sales Corp., 452 F.Supp. 516 (S.D.N.Y.1978), was accused of taking old recordings by a well-known musician, remixing them, over-dubbing some of them with sexual noises, and marketing them as new music created by the artist. That situation, involving both the mutilation of Benson’s work and the false presentation of it to the public as new when it was old, is not analogous to the harm Morita claims from the juxtaposition of a photograph associated with him with a magazine headline. Finally, plaintiff makes the inconsistent claim that defendants violated the false designation of origin provision of the Lanham Act by failing to include his name in the credit for the photograph used ón the magazine covers. The credit contains no misstatements; it identifies Kan only as the photographer of the cover photograph, a claim which Morita does not dispute. In order for Morita to state a claim on this theory, the Lanham Act must create a duty of express attribution. Morita points to no language in the statute itself from which such a duty could flow. Most of the cases he cites in support of this claim involve misattributions, not omissions. See e.g., Dodd v. Fort Smith Special School District, 4 U.S.P.Q. 1395 (D.C.Ark.1987) (in which a teacher published a book under her own name that had actually been written by another teacher and a school class.) In Lamothe v. Atlantic Recording Corp., 847 F.2d 1403 (9th Cir.1988), the Ninth Circuit held that it was a Lanham Act violation for a songwriter to publish a song with his name on it without giving credit to the other writers of the song. Thus, under Lamothe, if there were any other photographers, the Lanham Act would require that the credit “photographer” include those names as well. Furthermore, the Lamothe court determined that the writers named and the writers not named were in competition with one another. The court required that “in cases involving false designation, the actionable ‘conduct must not only be unfair but must in some discernable way be competitive.’ ” Lamothe, 847 at 1406, quoting Halicki v. United Artists Communications, Inc., 812 F.2d 1213, 1214 (9th Cir.1987). Nowhere in either the complaint or the affidavits submitted does Morita allege that he and Kan are in competition. Without this element, Morita cannot assert this claim, and it must be dismissed. STATE LAW CLAIM Defendant also moves to dismiss plaintiff’s third claim for relief which alleges a violation of Section 14.03 of the New York Arts and Cultural Affairs Law. N.Y. Arts & CultAff. § 14.03 (McKinney 1984). In his complaint Morita claims that defendants’ conduct violates § 14.03 in that: the placement of the Sculpture which was created solely to depict an anti-nuclear message together with a pro-nuclear text is an alteration, defacement, mutilation and modification of his Sculpture by defendants, without his consent and is reasonably likely to result in damage to his reputation. Complaint, If 24. As noted above in the discussion of Morita’s Lanham Act claim, the picture on the Omni magazine covers is not a mutilation or alteration of Morita’s work at all. Nothing about it was changed between its creation and the use about which Morita is complaining. Juxtaposition with a magazine headline is not an alteration, defacement, mutilation or modification. Therefore, Morita’s third claim for relief must be dismissed. CONCLUSION For the reasons discussed above, defendants’ motion for summary judgment on the copyright claim is granted in part and denied in part. Defendants’ motion to dismiss the Lanham Act claim and the state law claim is granted for failure to state a claim. Plaintiff’s cross-motion for partial summary judgment is denied. SO ORDERED. . The certificate of registration was issued by the Copyright Office and bears the number VA 213-511. . Section 101(2) provides that work for hire status can also be obtained where a written contract involving a commissioned work in one of nine enumerated classes so provides. This section is inapplicable here, however, since the work does not fall under any of the nine types of work covered by the section and there is no written agreement between Morita and Kan. . The Act provides in part: Any person who shall affix, apply or annex, or use in connection with any goods or services, ... a false designation of origin, or any false description or representation ... and shall cause such goods or services to enter into commerce ... shall be liable to a civil action by any person ... who believes that he is or is likely to be damaged by the use of any such false description or representation. 15 U.S.C. § 1125(a). . As a threshold matter, the statute is only applicable in situations where less than 300 multiples of the work that the author claims has been misused have been produced. Plaintiff alleges that only 250 copies of the poster were produced, while Kan alleges that he received 500 copies of the poster from Morita. Since there is a dispute of fact on this issue, the claim cannot be dismissed on the ground that the number of multiples exceeds the statutory ceiling, thus making the work ineligible for the protection of the statute.

ORDER (Validity of Local Admiralty Rule 4) HOLLAND, Chief Judge. Plaintiff commenced this action with a complaint for seaman’s wages and breach of seaman’s contract of employment under 28 U.S.C. § 1916. The action is solely one in rem against the F/V Borland Drive. Plaintiff filed with his complaint a motion for warrant of arrest without pre-arrest hearing. In accordance with this court’s usual practice, this case and plaintiff’s subject motion were referred to the United States Magistrate. The Magistrate has considered the motion for a warrant of arrest without a pre-hearing, and has served and filed a recommendation that the court relax Local Admiralty Rule 4 with respect to requiring a pre-arrest hearing for purposes of this case only. The Magistrate’s recommendation made provision for the filing of objections by the parties. Although plaintiff in substance prevailed on his motion, he nonetheless takes exception to the recommendation, insisting that the court should now hold the pre-arrest hearing process required by Local Admiralty Rule 4 to be inconsistent with Rules C(3) and E(4)(f) of the Federal Supplemental Rules for Certain Admiralty and Maritime Claims, herein “Supplemental Rules”. The Magistrate’s thoughtful analysis of plaintiff’s motion for an arrest warrant without a pre-arrest hearing has convinced the court that there is indeed a problem with respect to the viability of Local Admiralty Rule 4(B) and 4(D). The court understands the Magistrate’s reluctance to do more than suspend these local rules for purposes of this case. Superficially, such an approach solves plaintiff’s immediate problem. However, such a result blunts what the court supposes to be the real purpose of this case — the revision of the court’s local admiralty rules, not the adjudication of any rights that the plaintiff may have. While the court is most appreciative of the sensitive fashion in which the Magistrate approached this matter, it feels constrained to pick the matter up and go further. In the late 1970’s and early 1980’s, a crisis of sorts developed in the admiralty practice as a consequence of such cases as Alyeska Pipeline Service Co. v. Vessel Bay Ridge, 509 F.Supp. 1115 (D. Alaska 1981), appeal dismissed on other grounds, 703 F.2d 381 (9th Cir.1983), cert. dismissed, 467 U.S. 1247, 104 S.Ct. 3526, 82 L.Ed.2d 852 (1984). In Alyeska Pipeline, this court invalidated Admiralty Rule C for the reason that this rule failed to provide the minimum procedural due process required by Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), and Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). In Mitchell, the United States Supreme Court had held that procedural due process required that there be a pre-seizure judicial review, a prompt post-seizure hearing, and an opportunity to obtain the release of seized items upon the posting of adequate security. Alyeska Pipeline, 509 F.Supp. at 1120; Mitchell, 416 U.S. at 605-606, 94 S.Ct. at 1899. Local Admiralty Rule 4 was adopted in 1982 in order to provide a constitutional procedure for the arrest of vessels in the District of Alaska. In its present form, Local Admiralty Rule 4(B) requires that requests for the issuance of a warrant for the arrest of a vessel be reviewed by a judge or magistrate. If the court finds that a valid maritime lien exists and that personal jurisdiction cannot be obtained over the owner or operator of the vessel (or that pre-arrest notice has been waived), the court will issue an order authorizing the issuance of an arrest warrant. On the other hand, if personal jurisdiction can be obtained over the owner or operator, the court is directed by Rule 4(B) to determine if exigent circumstances exist; and the basis for such a determination is spelled out. Only if such circumstances are established, does an arrest warrant issue without notice to the owners or operators of a vessel. If the court does not find exigent circumstances to exist, a pre-arrest hearing is required. Local Admiralty Rule 4(D) sets out the procedure and evidentiary burden on a plaintiff at the pre-arrest hearing. It is the pre-arrest hearing requirement of Local Admiralty Rule 4(B) which is the focus of plaintiff’s motion. Effective August 1, 1985, the United States Supreme Court amended the Supplemental Rules for the express purpose of dealing with the issuance of and proceedings following the arrest of vessels. Supplemental Rules C(3) and E(4)(f). Supplemental Rule C(3) requires that a plaintiff’s verified complaint and supporting papers be “reviewed by the court” for purposes of authorizing a warrant of arrest in an appropriate case. Rule C(3) further provides: If the plaintiff or the plaintiffs attorney certifies that exigent circumstances make review by the court impracticable, the clerk shall issue a summons and warrant for the arrest and the plaintiff shall have the burden on a post-arrest hearing under Rule E(4)(f) to show that exigent circumstances existed. Supplemental Rule E(4)(f) then spells out the procedure for the release of a vessel from arrest after a “prompt hearing”. The Supplemental Rules are a part of the Federal Rules of Civil Procedure. Rule 83, Federal Rules of Civil Procedure, authorizes the promulgation of local rules by the district court in the following language: Each district court by action of a majority of the judges thereof may from time to time ... make and amend rules governing its practice not inconsistent with these rules. In his motion, plaintiff argues that Local Admiralty Rule 4(B) and (D) should have been rescinded upon promulgation of Supplemental Rules C(3) and E(4)(f). Counsel notes, and the court is very much aware of the fact, that for several years now the court has been looking to an ad hoc rules committee made up of local admiralty bar members for guidance on the issue of the rules which are the subject of plaintiffs motion. That committee never produced a recommendation on this subject. The court takes Rule 83 to mean what it expressly says — namely, that this court is empowered to adopt rules of practice which are “not inconsistent with these rules”. The question before the court on the instant motion is thus: “are the provisions of Local Admiralty Rule 4(B) and (D) with respect to prearrest hearings inconsistent with Supplemental Rules C(3) and E(4)(f)?” The case law under Rule 83 is sparse and not particularly informative as to how the phrase “not inconsistent” is to be interpreted and applied. Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973), is instructive and explains Miner v. Atlass, 363 U.S. 641, 80 S.Ct. 1300, 4 L.Ed.2d 1462 (1960), an earlier case on the same subject. In Miner, the United States Supreme Court held that a district court lacked the power by local rule to fill a gap left in the General Admiralty Rules for discovery depositions in admiralty prior to the 1966 merger of the General Admiralty Rules with the Federal Rules of Civil Procedure. Emphasizing the point set out in Miner, the United States Supreme Court explained in Colgrove: Amicus also suggests that Miner should be read to hold that all “basic procedural innovations” are beyond local rulemaking power and are exclusively matters for general rulemaking. We need not consider the suggestion because, in any event, we conclude that the requirement of a six-member jury is not a “basic procedural innovation.” The “basic procedural innovations” to which Miner referred are those aspects of the litigatory process which bear upon the ultimate outcome of the litigation and thus, “though concededly ‘procedural/ may be of as great importance to litigants as many a ‘substantive’ doctrine_” [Miner,] 363 U.S. [641], at 650 [80 S.Ct. 1300, at 1305]. Since there has been shown to be “no discernable difference between the results reached by the two different-sized juries,” Williams v. Florida, [399 U.S. 78 (1970) ] at 101 [90 S.Ct. 1893 at 1906, 26 L.Ed.2d 446] (see also n. 15, supra), a reduction in the size of the civil jury from 12 to six plainly does not bear on the ultimate outcome of the litigation. Colgrove, 413 U.S. at 164 n. 23, 93 S.Ct. at 2456 n. 23. In Colgrove, the District of Montana had adopted a local rule providing that trial juries in civil cases shall consist of six persons. In the face of a contention that the local rule was “inconsistent with” Federal Civil Rule 48, and therefore invalid by reason of Rule 83, the United States Supreme Court upheld the local rule. Plainly a local rule which contradicts the express requirement of a Federal Rule of Civil Procedure would be “inconsistent” with those rules. In this instance, the local rule does not amount to an outright contradiction of the Supplemental Rules. The local rule is different from the Supplemental Rules. The local rule requires a procedure that is not necessary under the Federal Supplemental Rules. Plaintiff argues persuasively that the difference between the local rules and the Federal Supplemental Rules is impermissible, and therefore inconsistent, because of some very practical considerations. If the defendant vessel sinks, is privately sold to a third party, or is arrested or made subject to a higher or equal but later lien, the instant claimant’s rights may be prejudiced solely because of delay occasioned by the pre-arrest hearing process which the present local rules require, but which the Supplemental Rules do not require. The Supplemental Rules do not expressly or by necessary implication call for implementing local rules. The Supplemental Rules appear entirely sufficient to serve their purpose without supplementation by additional local rules. The court’s earlier adopted local rules having to do with pre-arrest proceedings do not in any material sense serve to carry out the subsequently adopted Supplemental Rules. The procedure under the local rules, while not in direct, overt conflict with the Supplemental Rules, place upon claimants procedural obligations which are beyond what is required by the Supplemental Rules and which may have an impact on the ultimate outcome of the case. The court concludes that Local Admiralty Rule 4, insofar as the same requires pre-ar-rest proceedings different from Supplemental Rules C(3) and E(4)(f), is inconsistent with the Supplemental Rules. The court therefore concludes further that this court’s pre-arrest hearing procedures must be suspended. Process for the arrest of vessels shall be considered by the court and issued in accordance with Supplemental Rule C, and vessel arrests shall be subject to the release procedures set out in Supplemental Rule E(4)(f). . Rule 83 continues with a provision that copies of local rules are to be furnished to the circuit judicial council and the Administrative Office of the United States Courts, in addition to being made available to the public. The process for promulgating local rules was addressed by Congress in 1988 in Title IV of the Judicial Improvements and Access to Justice Act (Pub.L. No. 100-702 (Nov. 19, 1988)). The latter act added a new paragraph (4) to 28 U.S.C. § 332(d), requiring the circuit judicial council to review periodically the local rules promulgated by district courts in the circuit for consistency with the rules of practice and procedure. By the provisions of 28 U.S.C. § 2071(d) (as well as Rule 83), district courts are required to furnish circuit judicial councils and the director of the Administrative Office of the United States Courts with copies of their local rules. . This holding is not intended to change the court’s current practice of referring to the United States Magistrate for consideration those matters arising under the Supplemental Rules which must be determined by a judicial officer rather than the clerk of court.

ORDER HAMILTON, District Judge. This action arises out of a criminal assault that occurred at approximately 3:00 a.m. on September 15, 1988. Plaintiff was asleep in her apartment at The Park apartment complex in Richland County, South Carolina when an intruder entered her apartment through the sliding glass door to the balcony. Plaintiff alleges that the attacker was able to reach the balcony of her second floor apartment by using a ladder left nearby. The attacker attempted to rape plaintiff and stabbed her several times before fleeing. Henry Mack Taylor, Jr. pled guilty to first degree burglary and attempted criminal sexual assault. Plaintiff has brought this action against Allstate Management Corporation, the corporation that managed The Park apartment complex, alleging two causes of action: negligence and fraud. The matter is currently before the court on defendant’s motion for summary judgment on both causes of action. After considering the arguments by the parties, the record, and the applicable law, this court has determined that summary judgment is appropriate on plaintiff’s fraud claim and on all of plaintiff's allegations of negligence except the claim that by leaving an unsecured ladder nearby, defendant undertook an affirmative act that it did not perform with due care. Rule 56, Fed.R.Civ.Proc. I.Negligence A. Introduction Plaintiff alleges that defendant was negligent in: 1. failing to adequately light the outdoor common areas around the buildings; 2. failing to hire security guards; 3. failing to provide adequate locks on the sliding glass doors; 4. failing to warn of past assaults in the complex; 5. failing to have Henry Mack Taylor, Jr. removed from the premises; 6. failing to warn of Taylor’s presence; 7. failing to examine and improve security measures; 8. failing to maintain maintenance equipment safely on the premises. Complaint, para. 14. Defendant argues that summary judgment is appropriate on the negligence cause of action on following grounds: (1) Exculpatory Clause — The lease contained a provision relieving defendant of liability; (2) Duty — South Carolina law imposes no duty on a landlord to provide protection against the criminal activities of third parties; (3) Proximate Cause—Even if a duty did exist, the criminal’ activity of a third party constitutes, as a matter of law, a superseding cause, severing the chain of causation. B. Exculpatory Clause The lease signed by plaintiff provides that defendants would not be liable for any loss, injury or damage to person or property ... arising out of the failure of any appliance ... or caused by any casualty or catastrophe including without limitation ... criminal acts, or from any other cause whatsoever, whether or not due to negligent acts or omissions by You, your family and guests or by any third parties, including without limitation other occupants of this apartment, and you assume all risk and agree to indemnify Us from any such loss, injury, or damage. Lease, para. 10. Defendant, emphasizing plaintiff’s education, argues that this exculpatory clause is enforceable and bars plaintiff’s cause of action based on negligence. Plaintiff argues that the clause is unenforceable, or, alternatively, that the clause should be narrowly construed in such a way as to allow plaintiff’s allegation of defendant’s negligence. South Carolina law on exculpatory clauses in contracts makes clear that such clauses are disfavored: Contracts that seek to exculpate a party from liability for the party’s own negligence are not favored by the law. An exculpatory clause ... is to be strictly construed against the party relying thereon. “It will never be construed ... to exempt [a party] from liability for his own negligence ... in the absence of explicit language clearly indicating that such was the intent of the parties. South Carolina Elec. and Gas Co. v. Combustion Engineering, Inc., 283 S.C. 182, 322 S.E.2d 453, 458 (Ct.App.1984) (holding that exculpatory clause limiting liability for negligent manufacture did not exculpate defendant from alleged negligent design). The South Carolina Supreme Court has held that such clauses “may or may not be enforceable,” depending upon considerations of public policy. The court has listed as examples of violations of public policy attempts to exculpate “for negligence in the performance of a duty of public service, or where a public duty is owed, or public interest is involved, or where public interest requires the performance of a private duty, or when the parties are not on roughly equal bargaining terms.” Pride v. Southern Bell Telephone and Telegraph Co., 244 S.C. 615, 138 S.E.2d 155 (1964). See also Murray v. The Texas Co., 172 S.C. 399, 174 S.E. 231 (1934) (“even under the view that a person may under some circumstances contract against the performance of ... duties [a party owes independent of the contract], he cannot do so where the interest of the public requires the performance thereof, or where, because the parties do not stand on a footing of equality, the weaker party is compelled to submit to the stipulation”) In the case most helpful for our purposes, the South Carolina Supreme Court interpreted an extremely broad exculpatory clause as not including negligent acts of the party who drafted the clause. The clause at issue in Murray v. The Texas Co. provided that an agent would hold the company harmless from “all claims, suits and liabilities of every character whatsoever arising from the existence or use of the equipment at said station.” Id. 174 S.E. at 232. The court held that the provision of a contract relieving one of the parties thereto of liability for his or its own negligence should be clear and explicit.... The defendant itself wrote the provision into the contract for its own benefit. It could have plainly stated, if such was the understanding of the parties, that the plaintiff agreed to relieve it in the matter from all liability for its own negligence, As it did not do so, we resolve all doubt, as we should, in favor of the plaintiff, and hold that it was not the intent of the parties to give to the contract as written the effect claimed by the company. Id. In light of the extremes to which the South Carolina courts have gone to avoid enforcing a broad reading of an exculpatory clause, this court is confident that the clause does not bar plaintiffs negligence claim. A close reading of the clause reveals that the clause does not explicitly exculpate defendant from liability for its own allegedly negligent acts. The clause does mention the negligence of the lessee and of third parties, while glaringly omitting any reference to the negligence of defendant. Although it does mention criminal acts, the clause does not tie those criminal acts to any negligence of defendant. Because this is a form contract, plaintiff did not have equal bargaining power, and most importantly, the clause does not explicitly include the negligent acts of defendant, this clause does not bar plaintiffs negligence claims. C. Statutory Basis of Duty Plaintiff argues that the South Carolina Residential Landlord and Tenant Act (SCRLTA) imposes upon a landlord the duty to provide protection against criminal assault. Plaintiff points specifically to S.C. Code Ann. § 27-40-440(a)(2), which requires that a landlord “do whatever is reasonably necessary to put and keep the premises in fit and habitable condition.” Onto that section, plaintiff superimposes S.C.Code Ann. § 27-40-20(a), which provides that the SCRLTA “must be liberally construed and applied to promote its underlying purposes and policies,” and S.C.Code Ann. § 27-40-20(b)(2), which encourages “landlords and tenants to maintain and improve the quality of housing.” Plaintiff argues that these directives distinguish the S.C. Act from the acts of other jurisdictions in which arguments similar to plaintiff’s have been rejected. Defendant, on the basis of an interpretation of the Virginia Landlord/Tenant Act, argues that the duty of the landlord to keep the premises fit and habitable does not extend to protection against criminal activity. Defendant relies upon Deem v. Charles.E. Smith Management, Inc., 799 F.2d 944 (4th Cir.1986), in which the court interpreted Va.Code § 55-248.13(a)(3). That section requires a landlord to “keep all common areas shared by two or more dwelling units of the premises in a clean and safe condition.” The court interpreted the phrase “safe condition” as referring to the protection of the tenant “from injuries caused by failures of the building—collapsing stairs, faulty walls, dangerous windows.” Id. at 946. The Act, the court concluded, did not impose any duty on the landlord to protect against criminal activity. Id. The SCRLTA does not impose any duty on a landlord to protect tenants from criminal activity. The reasoning of the Deem court is sound, and applies to the S.C. Act. In fact, the word “safe,” which was the basis of plaintiffs argument in Deem (and similar arguments in other jurisdictions), is absent from the SCRLTA. The S.C. Act uses the terms “fit” and “habitable.” It is an even greater stretch to construe those terms to include protection against criminal activity than it was to so construe the word “safe.” The South Carolina Residential Landlord and Tenant Act does not impose a duty on a landlord to provide protection to his tenants against criminal activity of third parties. See also Williams v. William J. Davis, Inc., 275 A.2d 231 (D.C.1971); De Koven v. 780 West End Realty Co., 48 Misc.2d 951, 266 N.Y.S.2d 463 (1965); Pippin v. Chicago Housing Authority, 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596 (1979). See generally, Annotation Landlord’s Obligation to Protect Tenant Against Criminal Activities of Third Persons, 43 A.L.R.3d 331 § 5(a) (1972). D. Common Law Basis of Duty Having determined that the SCRLTA does not impose a duty on landlords to protect tenants from criminal activity, the initial question becomes whether South Carolina common law imposes such a duty. “The breach of legal duty is essential to negligence and such a duty is that which the law requires to be done or foregone with respect to a particular individual or the public at large.” South Carolina Electric & Gas Co. v. Utilities Construction Co., 244 S.C. 79, 88, 135 S.E.2d 613, 617 (1964). See also Kershaw Motor Co. v. Southern Railway Co., 136 S.C. 377, 382, 134 S.E. 377, 378 (1926). The question of whether a duty is owed is a question of law for the court to determine. Ballou v. Sigma Nu General Fraternity, 291 S.C. 140, 352 S.E.2d 488 (Ct.App.1986); Araujo v. Southern Bell Telephone and Telegraph Co., 291 S.C. 54, 351 S.E.2d 908 (Ct.App.1986). This court’s task, in the absence of South Carolina case law on point, is to forecast how the South Carolina Supreme Court would view the question of a landlord’s duty under these circumstances. Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); Wilson v. Ford Motor Co., 656 F.2d 960 (4th Cir.1981). Plaintiff and defendant agree that South Carolina common law imposes on a landlord no general affirmative duty to maintain the physical condition of the premises. See, e.g., Young v. Morrisey, 285 S.C. 236, 329 S.E.2d 426 (1985) (“traditionally, under the law of South Carolina, a landlord owes no duty to maintain leased premises in a safe condition”). From that well-established rule, defendant reasons that South Carolina would not, under any circumstances, impose on landlords a duty to protect their tenants from criminal activity. Plaintiff relies on exceptions to that general rule, arguing that she has alleged facts that would bring the case within each of the four exceptions, and that it is not a significant extension of South Carolina law to apply those exceptions to foreseeable criminal activity. Those four exceptions are: Exception Allegation Affirmative Acts Ladder improperly stored Concealed danger Lurking criminals, improperly stored ladder, inadequate lock Common area Improperly stored ladder, design of the complex Undertaking Inadequate locks, advice about safety Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment, pp. 8-14. The cases agree that a landlord who increases the risk of loss from criminal activities is under a duty to exercise reasonable care to protect his tenants against the foreseeable risk of harm arising out of his action. See Annotation, 43 A.L.R.3d 331, § 7(b). The eases falling within this category include a landlord placing keys in an accessible place and a landlord leaving an apartment door unlocked. See, e.g., McCappin v. Park Capitol Corp., 42 N.J. Super. 169, 126 A.2d 51 (1956); Annotation, 43 A.L.R.3d 331. Plaintiff has alleged that defendant’s improper storage of the ladder brings it within this rule, which she argues is consistent with the South Carolina “affirmative act” exception to the rule against landlord liability. Defendant responds that no such duty is owed, and that even if South Carolina law does impose such a duty, there is no evidence to support plaintiff’s allegation that The Park’s ladder was used. It is necessary first to determine whether plaintiff’s interpretation of the affirmative act rule is correct. Generally speaking, negligence principles impose a duty to act with due care regardless of the context. Whether a person was under a duty to take a particular action is irrelevant for purposes of this standard. “[0]ne who assumes to act, even though under no obligation to do so, may become subject to the duty to act with due care.” Crowley v. Spivey, 285 S.C. 397, 406, 329 S.E.2d 774, 780 (Ct.App.1985). Having established that South Carolina law imposes a duty on a person to use reasonable care when any affirmative act is undertaken, it becomes necessary to examine the record for evidence relating to this duty in this case. Plaintiff alleges that defendant negligently maintained the premises by leaving an unsecured ladder outside, which plaintiff’s assailant then used to climb onto her balcony. Henry Mack Taylor testified in his deposition that he used a wrought iron railing that he found on the patio of a nearby apartment to climb onto plaintiffs balcony. Deposition of Henry Mack Taylor, p. 26. He also testified that he did not use any property of The Park apartments to facilitate the break-in. Id. at 27. Defendant also points to the deposition testimony of Dwight Kraschnewski, a maintenance worker at The Park apartments, who testified that all ladders kept by The Park are stored in a building, except one extension ladder, which is kept outside. Deposition of Dwight Kraschnewski, p. 29. The extension ladder is kept “outside of Building 15-B between the bushes and the building, actually between the condensing units and the building.” Id. Defendant argues that the testimony of Taylor and Kraschnewski refutes plaintiffs theory that Taylor used The Park’s ladder to break into the apartment. Plaintiff testified in her deposition that immediately after the attack, she saw a ladder leaning against her balcony. Deposition of Stacey Cooke, p. 63. She stated that the assailant grabbed the ladder and ran away. Id. at 64. She described the ladder as “gray,” “short,” and “light in color.” Id. She stated that it “could have been” an extension ladder, and speculated that the ladder used “could have been” a ladder stored nearby and owned by The Park. Id. at 65, 71. Construing the evidence in the light most favorable to the plaintiff, a factual issue has arisen as to whether a ladder was used by Taylor to enter plaintiff’s apartment. The question on which there is scant evidence, however, is whose ladder was used. Plaintiff has shown that there was an unsecured ladder nearby that could have been used. Based on the marks made by Kras-chnewski on a map of the apartment complex, it appears that The Park’s unsecured ladder was located not far from plaintiff’s apartment. See Exhibit 1 to deposition of Kraschnewski. Although this evidence is weak at best, this court will give plaintiff the benefit of every reasonable inference at this stage. There is a factual issue as to whether a ladder was used, and there is at least some evidence that The Park's ladder was unsecured nearby. For that reason, defendant’s motion for summary judgment on the negligence claim based upon the storage of the ladder is denied. Plaintiff attempts to-bring the remaining allegations of negligence within other established exceptions to the rule against landlord liability. First, plaintiff argues that the concealed danger exception would include lurking criminals, the improperly stored ladder, and inadequate locks on the sliding glass doors. Second, plaintiff argues that the “common areas” exception would include the open design of the complex and the improper storage of the ladder. Third, plaintiff argues that the “undertaking” exception, as she describes it, would include the inadequate lock and the advice given regarding safety. The correctness of plaintiff’s argument depends upon the reach of each of these exceptions under existing South Carolina law. Because the South Carolina cases do not give any indication that those exceptions include the type of allegations made by plaintiff, this court concludes that South Carolina law does not impose a duty on the landlord to take affirmative action to protect tenants from criminal activity. In the ease cited by plaintiff as support for her argument that South Carolina law requires a landlord to warn of concealed dangers on the premises, the South Carolina Supreme Court stated that many jurisdictions permit recovery “where injury results from a defective condition known to the landlord and concealed by him from the tenant.” Timmons v. Williams Wood Products Corp., 164 S.C. 361, 162 S.E. 329 (1932). From that dictum, plaintiff asks this court to interpret South Carolina law as allowing recovery for a landlord’s failing to advise of lurking criminals, failing to properly store the ladder, and failing to install stronger locks on the sliding glass doors. Plaintiff, acknowledging that the South Carolina courts have not applied the exception in the way she seeks to do so now, has ripped the law on concealed dangers from its context (the physical soundness of the premises). Criminal activity is a completely different type of danger than rotting stairways, and none of the concealed dangers alleged by plaintiff in this case can be said to fall anywhere near the existing parameters of that exception. The South Carolina Supreme Court has not indicated that it intends under the label “concealed danger” to shift to the landlord the responsibility for protecting tenants against one of the dangers of modern urban life. Because the leap plaintiff requests this court to make is simply too great, and because the proposed extension would revolutionize South Carolina landlord/tenant law, this court rejects the argument that the concealed danger exception has any application to the facts of this case. Plaintiff also argues on the basis of the “common areas” exception. South Carolina law provides that a landlord must maintain common areas of an apartment complex that remain under his control: “The law ... creates a legal duty to keep the same in repair and to operate properly such parts of the premises which the lessor reserves possession and control of for the common use of several tenants and this is peculiarly applicable to halls, entrances, porches or stairways of which no particular tenant has exclusive possession or control.” Daniels v. Timmons, 216 S.C. 539, 59 S.E.2d 149 (1950). This rule clearly has never been applied in South Carolina to anything except physical injuries resulting directly from the condition of the premises themselves. For the same reasons discussed in response to the “concealed dangers” argument, this court rejects the application of the “common areas” exception to criminal activity under South Carolina law. Again, to extend this rule to include a duty to protect against criminal activity would stretch it well beyond its current limits and change the landlord/tenant relationship dramatically. Plaintiff has presented evidence that some jurisdictions have made this extension; many others have not. Faced with the task of predicting what South Carolina would do, this court has concluded that it would not expand the realm of landlord liability to the extremes advocated by plaintiff. Finally, plaintiff attempts to expand the rule that a landlord’s repairs must be performed with due care. See, e.g., McQuillen v. Dobbs, 262 S.C. 386, 204 S.E.2d 732 (1974). This rule is nothing more than a specific application of the general negligence standard discussed in this order, and this court does not disagree with its possible relevance to some allegations arising out of violence committed against tenants. For example, if a plaintiff offers evidence that a landlord had been asked to repair a lock on a door, and that the work was performed negligently, a crime committed by a person entering through that door may present an actionable negligence claim against the landlord under South Carolina law. Plaintiffs attempt to use this rule is not nearly so compelling in this case, however. Plaintiff merely alleges that the locks chosen for all sliding glass doors in the complex were inadequate. There is nothing to distinguish this particular lock from others in the complex, or to indicate that it malfunctioned. It is a far cry from established principles of South Carolina law to conclude that a landlord’s use of standard sliding glass doors with standard locks is somehow actionable under the principles discussed in McQuillen v. Dobbs. To hold otherwise would result in the exception swallowing the rule, and would impose something approaching strict liability on landlords who use accepted materials and devices in their apartment buildings. For similar reasons, plaintiff’s attempt to bring the comments of defendant’s agent into this rule must fail. Plaintiff argues that when defendant provided advice about the safety of the complex, it did so negligently. Plaintiff relies upon Garrett v. Snedigar, 293 S.C. 176, 359 S.E.2d 283 (Ct.App.1987), in which the court of appeals held that genuine issues of material fact prevented summary judgment on an allegation that an investment advisor had not investigated the soundness of a partnership venture with due care. South Carolina law imposes a duty of due care in giving advice when the advisor has a pecuniary interest in the transaction. Id. See also Winburn v. Insurance Co. of North America, 287 S.C. 435, 441, 339 S.E.2d 142, 146 (Ct.App.1985). That rule has never been extended as far as plaintiff would like it to reach now, however. There is again a world of difference between a financial ad-visor who performs his job negligently and a rental agent making casual conversation about an apartment complex. It raises no issue of material fact to allege that a comment that the complex is safe is “advice.” Such a causal and general comment certainly does not fall within the current boundaries of the law on this point. See also Folkens v. Hunt, 290 S.C. 194, 348 S.E.2d 839 (Ct.App.1986) (public accountant who undertakes a task on behalf of a client owes a duty to perform that task with due care). The South Carolina Court of Appeals has described the process by which the common law has developed, resulting in a duty being imposed under some circumstances and not others: There is no formula for determining duty; a duty is not sacrosanct in itself but only an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection. Suffice it to say that a multiplicity of factors come into play when courts contemplate the question of duty. These factors include the policy of deterring future tort-feasors, the moral culpability of the tort-feasor and numerous other conceivable factors; duty is seen in general terms as requiring a person or corporation to conform his or its conduct to a standard which is adequate to protect others from unreasonable risk of harm. Araujo v. Southern Bell Telephone and Telegraph Co., 291 S.C. 54, 351 S.E.2d 908, 910 (Ct.App.1986). Aware of those policy considerations in this case, this court is simply not convinced that the South Carolina Supreme Court would recognize a duty as argued by plaintiff. Plaintiff’s at tempt to extend the duty owed by store owners and innkeepers in South Carolina is simply not persuasive in light of the cautious approach the South Carolina appellate courts have taken even in those contexts. In Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E.2d 167 (1977), the supreme court implied that under certain circumstances, a store owner may be liable for injuries suffered by an invitee as a result of criminal attack. The court cited comment (f) to Restatement of Torts (Second) § 344, which provides that “[i]f the place or character of [a storeowner’s] business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, ... he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.” The court went on to assume that a duty was owed, but concluded that the evidence at trial did not show a breach of the duty. Id. 238 S.E.2d at 169. See also Bullard v. Ehrhardt, 283 S.C. 557, 324 S.E.2d 61 (1984) (storeowner owes duty of reasonable care to protect invitees against criminal attacks that he knows or has reason to know); Munn v. Hardee’s Food System, Inc., 274 S.C. 529, 266 S.E.2d 414 (1980). In Daniel v. Days Inn of America, Inc., 292 S.C. 291, 356 S.E.2d 129 (Ct.App.1987), the court declined to address the issue head-on of whether a hotel owes a duty to protect its guests from foreseeable criminal conduct. Concluding that defendant had not properly raised the issue on appeal, the court determined that “it should not be allowed to do so now.” Id. 356 S.E.2d at 131. The court again cited the Restatement (Second) of Torts § 344. See also Courtney v. Remler, 566 F.Supp. 1225 (D.S.C.1983), aff'd, 745 F.2d 50 (4th Cir. 1984) (analogizing from the possessor/invitee and common carrier/passenger relationships, district court concludes that South Carolina would impose duty on innkeeper to provide reasonable protection against criminal act). On the basis of these cases, plaintiff argues that the South Carolina Supreme Court would extend the exceptions to the general rule against landlord liability to include an affirmative duty to protect tenants from reasonably foreseeable criminal conduct. That argument rests on the assumption that the relationships of store-owner/invitee and innkeeper/guest are analogous to the relationship of landlord/tenant. This court is not convinced that the analogy is a sound one, and agrees with the Pennsylvania Supreme Court, which has articulated the key differences between these relationships: [PJlaces to which the general public are invited might indeed anticipate, either from common experience or known fact, that places of general public resort are also places where what men can do, they might. One who invites all may reasonably expect that all might not behave, and bears responsibility for injury that follows the absence of reasonable precaution against that common expectation. The common areas of an apartment complex are not open to the public, nor are the general public expected or invited to gather there for other purposes than to visit tenants. Tenants in a huge apartment complex ... do not live where the world is invited to come. Absent agreement, the landlord cannot be expected to protect them against the wiles of felonry any more than the society can always protect them upon the common streets and highways leading to their residence or indeed in their home itself. An apartment complex is not a place of public resort where one who profits from the very public it invites must bear what losses that public may create. It is of its nature private and only for those specifically invited. The criminal can be expected anywhere, any time, and has been a risk of life for a long time. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 745-46 (1984). Because this court agrees that the landlord/tenant relationship is fundamentally different than the relationships for which South Carolina law will impose a duty to protect against criminal activity, it declines plaintiff’s invitation to extend the law of South Carolina so far beyond its current boundaries. E. Proximate Cause Because under general South Carolina negligence law, all affirmative acts must be performed with due care, plaintiff has shown that defendant had a duty to use due care when maintaining the premises and storing equipment. It is necessary, therefore, to turn to defendant’s argument that proximate cause is lacking as a matter of law. Defendant argues that the criminal activity of Taylor constitutes a superseding cause that would break the chain of causation. Plaintiff argues that several complaints had been received by defendant about Taylor’s presence on the premises, and that he was a suspected peeping tom. After considering the deposition testimony of defendant’s agents, this court cannot determine as a matter of law that the criminal activity by Taylor was unforeseeable and that proximate cause is lacking. South Carolina law on proximate cause as applied to criminal activity makes clear that a criminal act is not necessarily a superseding cause as a matter of law. The original negligent actor is not relieved of liability unless the subsequent criminal act was unforeseeable. In Shepard v. South Carolina Dept. of Corrections, 385 S.E.2d 35 (Ct.App.1989), for example, the South Carolina Court of Appeals affirmed the factfinder’s conclusion, but found the proximate cause issue to be a close one. In that ease, plaintiff sued the South Carolina Department of Corrections after a criminal escaped from its custody and went on a crime spree. The court concluded that the trial court could have determined that the criminal activity was not foreseeable, which would relieve the original negligent actor of its liability. Calling the factual question of foreseeability a “close one,” the court affirmed the trial court’s finding. See also Daniel v. Days Inn of America, Inc., 292 S.C. 291, 356 S.E.2d 129 (Ct.App.1987) (hotel’s argument that it could not have foreseen that one of its guests would attack another guest is a question of proximate cause that “should not be decided at the summary judgment stage”); Cf. Annotation, 43 A.L.R. 331 §§ 8-9 (cases approaching the proximate cause issue by examining foreseeability of criminal activity in general, as well as specific criminal acts by known persons). The evidence in the record establishes that the management, at the very least, suspected Henry Mack Taylor of criminal activity on the premises. Connie O’Connor Harris, defendant’s regional property manager, testified in her deposition that she was aware of criminal activity in general on the premises, both before her arrival in January, 1986, and after that date. Deposition of Harris, pp. 10, 26. Harris testified that she knew that Henry Mack Taylor was staying with a tenant in the complex. Id. at 48-49. And finally, most important to this court’s examination of the foreseeability issue, Harris testified that tenants had complained of peeping tom activity by a black male whose description she recognized as matching Taylor’s. Id. at 53-55. As a result of those complaints, Harris “told the police about [Taylor].” Id. at 55. Carolyn Caulder, defendant’s leasing agent, testified that after an attempted break-in into the apartment of a tenant named Sherry Hensley in August, 1988, Caulder and other agents and employees of defendant “probably” discussed Henry Mack Taylor as a suspect. Deposition of Caulder, pp. 21-22. And finally, Denise Porter, another leasing agent, also testified that she thought of Taylor after hearing tenants’ descriptions of the peeping tom. Deposition of Porter, pp. 88-89. Because plaintiff has offered evidence that Henry Mack Taylor was suspected of criminal activity on the premises of The Park, plaintiff is correct that the court cannot rule as a matter of law that such activity constituted a superseding cause which would break the chain of causation. Proximate cause is generally a question for the jury, and plaintiff has presented some evidence that Mack was suspected of such activities. For that reason, this court cannot rule as a matter of law that the alleged negligence of defendant was not the proximate cause of plaintiff’s injuries. II. Fraud, Plaintiff alleges that defendant represented to plaintiff that The Parks apartment complex was safe, when in fact, the complex was not safe. Plaintiff has pled all nine elements of fraud, alleging that her decision to rent the apartment was fraudulently induced. Citing her deposition testimony, plaintiff argues that several statements by defendant’s agents were representations of material facts known to be false. Plaintiff alleges that Carolyn Caulder, a rental agent with whom she met on her third visit to the complex, agreed with her statement that “she thought it was a safe place.” Deposition of Stacey Cooke, pp. 35-36. Plaintiff described her second visit to the complex (this time with her mother): Well, my mother and I were both saying that we thought it was more safe. And, [the agent] was saying there is really nothing to worry about because this complex is really safe.... She said a lot of people sleep with their sliding glass doors open because it is really shad-ed_ She said, “So it’s safe.” Deposition of Stacey Cooke, p. 31. The agent also allegedly responded to a question from Martha Cooke, Stacey’s mother, about the safety of the premises by stating: “No, it’s safe, the apartment complex and for the money it is a really nice place to live, reasonable.” Deposition of Stacey Cooke, p. 31. Martha Cooke’s version of the exchange concerning safety is the same as her daughter’s: Q. So, you made the representations that the place looks safe? A. Yes. Q. Was there any other discussion whatsoever about safety? A. No, other than she agreed yes. Deposition of Martha Cooke, p. 35. Defendant argues that plaintiff cannot establish three of the nine elements of fraud: representation of fact, materiality, and reliance. Defendant argues that the agent’s comments regarding safety are representations of opinion rather than fact, and that an action for fraud may not lie for an expression of opinion. Plaintiff argues that the agent’s responses to the inquiries regarding safety were factual, or, alternatively, that they were hybrids of fact and opinion. Finally, as a third alternative, plaintiff argues that if they were opinion, the facts underlying that opinion would support the fraud claim. Explaining the difference between fact and opinion, the South Carolina Supreme Court has held as a matter of law that a representation that a person was a “competent mechanic” is opinion. Winburn v. Insurance Co. of North America, 287 S.C. 435, 339 S.E.2d 142 (Ct.App.1985). In that case the court cited with approval an Arizona case holding that a statement by a bank official that a person was a “good businessman” was an expression of opinion rather than fact. Id. 339 S.E.2d at 146, citing Springer v. Bank of Douglas, 82 Ariz. 329, 313 P.2d 399 (1957). To be contrasted with the court’s holding the statement in Winburn to be opinion is the court’s conclusion in Gilbert v. Mid-South Machinery Co., Inc., 267 S.C. 211, 227 S.E.2d 189 (1976). In that case the court upheld the jury’s conclusion that a statement that a business is “profitable” is one of fact. The court then went on to give some guidance in drawing the line between fact and opinion: “The distinction between fact and opinion is broadly indicated by the generalization that what was susceptible of exact knowledge when the statement was made is usually considered to be a matter of fact.” Id. 227 S.E.2d at 193. Another attempt to draw a general distinction between fact and opinion can be found- in the Restatement of Torts: An opinion is a statement “expressing (a) the belief of the maker, without certainty, as to the existence of a fact; or (b) his judgment as to quality, value, authenticity, or other matters of judgment.” Restatement (Second) of Torts § 538A. The comment to this section goes on to explain: One common form of opinion is a statement of the maker’s judgment as to quality, value, authenticity or similar matters as to which opinions may be expected to differ. Thus the statement that an automobile is a good ear is a relative matter, depending entirely upon the standard set as to what is a good automobile and what is not, and it is a matter upon which individual judgments may be expected to differ. The maker of a statement of this nature will normally be understood as expressing only his own judgment. There can be no doubt but that the comment that an apartment complex is “safe” is one of opinion rather than fact. It simply reflects the speaker’s judgment about the quality of life at The Park apartments. Safety is a vague term that would not be “susceptible of exact knowledge” in the way that the profitability of a business would be. “Safe,” like “good,” is a word whose meaning, in the language of the Restatement, “depends entirely upon the standard set.” No more specific questions were asked, no more specificstatements made. The response, casual and general, was simply the agent’s judgment and opinion about safety on the complex. It is certainly not the kind of statement that South Carolina law would support as fraudulent. III. Conclusion Because the statements by defendant’s agent concerning the safety of the complex can only be characterized as opinion, they do not support a fraud claim. Defendant’s motion for summary judgment as to plaintiff’s fraud claim is granted. Rule 56, Fed. R.Civ.Proc. On the negligence claim, only one allegation made by plaintiff is both cognizable under existing South Carolina law and arguably supported by the record. For that reason, defendant’s motion for summary judgment is granted on all causes of action exceptthe allegation that defendant was negligent in storing the ladder. Rule 56, Fed.R.Civ.Proc. IT IS SO ORDERED. . The wide range of approaches taken by courts in other jurisdictions establishes only that support can be found for practically any position. See generally, Annotation, Landlord's Obligation to Protect Tenant Against Criminal Activities of Third Persons, 43 A.L.R.3d 331. That annotation attempts to summarize the case law as follows: Courts considering whether a landlord is under a duty to protect his residential tenants against criminal activities of third persons generally have held that no such duty exists merely by reason of the relationship, but that a duty may arise under the particular circumstances of individual cases. Thus, it has been said in a number of cases that a landlord is not an insurer of the safety of his residential tenants against third-person criminal activities, and that any liability of a landlord for injuries or damages resulting from such activities must be predicated either upon the breach of a contractual or statutory obligation, or upon a showing of negligence constituting the proximate cause of the loss. Id. at § 2(a), p. 335. . There is a fundamental difference between imposing a general duty to perform with due care all affirmative acts, and a duty to take certain affirmative precautions. The former is the general negligence standard the common law imposes on all persons regardless of the context (see affirmative act discussion, supra), and the latter depends upon the particular circumstances. The circumstances under which South Carolina imposes affirmative duties on landlords are limited, and plaintiff has not shown that they exist here. . Plaintiff argues that at least one other jurisdiction has made that leap on the basis of this theory. See O’Hara v. Western Seven Trees Corp., 75 Cal.App.3d 798, 142 Cal.Rptr. 487 (1977). Plaintiff did not include a copy of this case as required by Local Rule 12.05(d). In any event, South Carolina recognizes a duty owed by a landlord to a tenant only in narrowly defined circumstances, and it has not followed California's liberal expansion of that duty in this or other contexts. . See, e.g., Gulf Reston, Inc. v. Rogers, 215 Va. 155, 207 S.E.2d 841 (1974). In that case, the Virginia Supreme Court recognized a landlord’s duty "to maintain the areas over which he has control in good repair and free from latent defects, rather than the duty to police.” The court concluded that because the landlord/tenant relationship is not a “special” one in the eyes of the law, and because a landlord is not an insurer of his tenants’ safety, a landlord owes no duty to provide protection against criminal acts. . Plaintiff attempts to bring the storage of the ladder and the general layout of the complex within this exception. Plaintiff never makes clear how the design of the complex is allegedly negligent. Whatever the basis for the claim, however, plaintiff has cited no South Carolina case imposing an affirmative duty on landlords to install gates, hire guards, or build fences. Despite plaintiff’s attempts to apply the com mon areas cases to this allegation, those cases do not hold or even imply that such a duty exists. . In arguing that the statement cannot be considered material to plaintiffs decision to rent the apartment, defendant relies primarily upon the absence of any specific questions asked by plaintiff or her mother. This court cannot agree as a matter of law that safety was not material to plaintiff's decision. Plaintiff demanded her mother’s approval before renting the apartment, and her mother was clearly very concerned about safety. In addition, plaintiffs decision to rent a second floor apartment was apparently influenced by her perception that it would be safer than one on ground level. The fact that specific questions were not asked about the type of problems that had taken place at The Park does not lead to the inevitable conclusion that the matter was not material. In addition, defendant argues that plaintiffs deposition testimony shows as a matter of law that plaintiff did not rely upon the comments of the agents regarding safety. Defendant uses one answer in the deposition in which plaintiff listed the factors that led her to rent the apartment, and failed to mention safety. The fact that "safety” is missing from one significant answer does not, as matter of law, establish that she did not rely upon the statement. She did indicate that she would have hesitated or thought differently had she been told of crime at the complex. Deposition of Stacey Cooke, p. 109. For that reason, the court cannot find as a matter of law that plaintiff did not rely upon the statement about safety. . Plaintiff urges the court to read plaintiff’s deposition as showing that a more specific allegation was made. The testimony is as follows: "My mother ... said, you know, ‘Is it safe around here” and "Have you had any problems?’ And [the agent] said, ‘No, it’s safe, the apartment complex and for the money it is a really nice place to live, reasonable." This testimony does not, as plaintiff argues, establish that defendant’s agent fraudulently represented that there had been no criminal activity on the premises. The answer "No, it’s safe” is no more specific than the other alleged statements about the safety of the premises. The agent’s answer to what appears in plaintiff's deposition as a double question is, like the other comments allegedly made, not a representation of fact upon which a fraud claim may be based.

PER CURIAM: Luis Guillermo-Torres, his wife Beatriz Eugenia Llanos-Torres, and their minor children Mateo and Samuel Torres, natives and citizens of Colombia, petition for review of the affirmance by the Board of Immigration Appeals (“BIA”) of the decision of the Immigration Judge (“IJ”). The decision denied asylum and withholding of removal. No reversible error has been shown; we deny the petition. We review the BIA’s decision in this case because the BIA did not expressly adopt the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001) (noting that we review the BIA’s decision; but “[i]nsofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well”). We review de novo legal determinations of the BIA. Id. We review factual determinations under the “highly deferential” substantial evidence test; and we must affirm a “decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1286 (11th Cir.2005) (citation omitted). Therefore, a fact determination will be reversed only when the record compels, instead of mere ly supports, a reversal. Alim v. Gonzales, 446 F.3d 1239, 1254 (11th Cir.2006). An alien may obtain asylum if he is a “refugee,” that is, a person unable or unwilling to return to his country of nationality “because of persecution or a well-founded fear of persecution on account of’ a protected ground, including political opinion. 8 U.S.C. §§ 1101(a)(42)(A); 1158(a)(1), (b)(1). The asylum applicant bears the burden of proving statutory “refugee” status with specific and credible evidence. Forgue, 401 F.3d at 1287. Guillermo-Torres sought asylum based on his political opinion, claiming that the Revolutionary Armed Forces of Colombia (“FARC”) targeted him because of his activities with the Radical Change Party, an arm of the Liberal Party. About his political activities, Guillermo-Torres testified that (1) he worked on the mayoral campaign of his cousin, the campaign received threats from the FARC, and his uncle, the leader of the campaign, was assassinated by the FARC; (2) he also worked on the re-election campaign of President Alvaro Uribe and, after a meeting about the campaign, a village leader told him not to return to the village because FARC guerillas would kill him if he continued to work on the campaign; and (3) a few days after the Uribe meeting, he received a threatening phone call from a FARC member. Guillermo-Torres also testified that the FARC stopped one of his company trucks and told the driver to warn Guillermo-Torres that he was not safe. The FARC captured another of Guillermo-Torres’s company trucks, killed the driver and his assistant, and burned the truck. Shortly after the truck driver’s death, Guillermo-Torres and his wife were driving and noticed that they were being followed by a truck. When the truck passed them, Guillermo-Torres accelerated and hit the side of the truck. Gun shots were fired from the truck, hitting Guillermo-Torres’s vehicle in several places. This incident prompted Guillermo-Torres and his wife to seek government protection, but they were told by the mayor’s office that there was insufficient personnel to offer protection. Guillermo-Torres and his family fled to a town 650 kilometers away to stay with his wife’s family. There, someone called him and threatened to assassinate him. Guillermo-Torres and his family then fled to the United States. The IJ determined that Guillermo-Torres had not demonstrated past persecution or a well-founded fear of future persecution. The BIA agreed, noting that (1) Guillermo-Torres presented no evidence indicating that the destruction of his company trucks was connected to his political activities; (2) it was unclear whether the FARC was involved in the driving incident or why people shot at Guillermo-Torres’s vehicle; (3) the threats Guillermo-Torres received did not constitute past persecution; and (4) he had family members living unharmed in Colombia while nothing indicated that the FARC was actively looking for him there. On appeal, Guillermo-Torres argues that he suffered past persecution at the hands of the FARC because of his political activities and that he demonstrated a well-founded fear of future persecution. Substantial evidence supports the BIA’s decision; and we are not compelled to reverse it. About his uncle’s assassination, the incidents with the company trucks, and being followed while driving, Guillermo-Torres did not show a connection between the acts and his political activities. Rodriguez Morales v. U.S. Attorney Gen., 488 F.3d 884, 890 (11th Cir.2007) (explaining that the persecution must occur because of the victim’s protected characteristic). For instance, since his uncle was killed, no other member of his family has been harmed by the FARC. Guillermo-Torres admitted to running into the truck with his own vehicle, making it unclear why shots were fired. Aso, nothing evidences that the FARC instigated this incident or took responsibility for it. And the threats Guillermo-Torres received from the FARC— the only acts that clearly were directed at him because of his political activity—do not rise to the level of past persecution. Sepulveda, 401 F.3d at 1231 (explaining that persecution is an “extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation”; and “mere harassment does not amount to persecution”) (citation and internal quotation omitted). About a well-founded fear of future persecution, Guillermo-Torres needed to establish that his fear both was “subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289. “[T]he objective prong can be fulfilled ... by establishing ... that he ... has a good reason to fear future persecution.” Id. (internal quotation omitted). Guillermo-Torres has shown no such objective good reason. Nothing evidences that the FARC is actively looking for Guillermo-Torres or his family in Colombia. And he has family remaining there—including his politically active cousin—unharmed. See Ruiz v. U.S. Attorney Gen., 440 F.3d 1247, 1259 (11th Cir.2006) (indicating that a claim of well-founded fear is undercut when the alien has family living in the country without incident). Substantial evidence supports the BIA’s decision that Guillermo-Torres was unenti-tled to asylum; and we are not compelled to reverse the BIA’s decision. Because we conclude that Guillermo-Torres did not meet his burden of establishing his eligibility for asylum, he also has failed to meet the more difficult standards for withholding of removal. See Forgue, 401 F.3d at 1288 n. 4. We deny the petition for review. PETITION DENIED. . Guillermo-Torres included his wife and children as derivatives in his asylum application; so our decision about Guillermo-Torres also applies to them. . The decision also denied relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. But on appeal, Guillermo-Torres does not offer argument on this claim; and thus, it is abandoned. See Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005) (explaining that petitioner abandons an issue by failing to offer argument on that issue).

MEMORANDUM Daniel H. Govind, a California state prisoner, appeals pro se from the district court’s judgment following a jury trial in his 42 U.S.C. § 1983 action alleging that prison guards violated his civil rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal for failure to state a claim and its grant of summary judgment. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919, 923 (9th Cir.2001). We review for an abuse of discretion the district court’s denial of a motion to amend the complaint, Ward v. Circus Circus Casinos, Inc., 473 F.3d 994, 1000 (9th Cir.2007), and the denial of a preliminary injunction, Harris v. Board of Supervisors, L.A. County, 366 F.3d 754, 760 (9th Cir.2004). We affirm. We affirm for the reasons stated in the district court’s partial summary judgment order, entered July 21, 2006 in favor of defendant Sims, and partial dismissal order, entered August 2, 2006 in favor of defendant Adams. Further, the district court did not abuse its discretion by denying Govind’s motion to file a Second Amended Complaint because Govind had already been given the opportunity to cure the defects in his pleadings and had failed to do so. See DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 n. 3 (9th Cir.1987) (“a district court’s discretion over amendments is especially broad where the court has already given a plaintiff one or more opportunities to amend his complaint”) (internal quotations omitted). The district court did not abuse its discretion by denying Govind’s motion for a preliminary injunction because the district court did not have personal jurisdiction over the parties who allegedly subjected Govind to the threat of irreparable harm. See Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir.2004) (“A federal court may issue an injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.”). Because Govind did not include a trial transcript in the record on appeal as required by Federal Rule of Appellate Procedure 10(b)(2), or explain his failure to do so, we do not consider his claims of error during the trial. See 9th Cir. R. 10-3.1 (d) & (e); Portland Feminist Women’s Health Ctr. v. Advocates for Life, Inc., 877 F.2d 787, 789 (9th Cir.1989) (“When an appellant fails to supply a transcript of a district court proceeding, we may ... refuse to consider the appellant’s argument.”); see also Syncom Capital Corp. v. Wade, 924 F.2d 167, 169 (9th Cir.1991) (dismissing appeal of pro se appellant who did not provide trial transcript). Govind’s remaining contentions are unpersuasive. Govind’s motion requesting that his “complaints” be granted is denied. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

MEMORANDUM AND ORDER McLAUGHLIN, District Judge. Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is denied. FACTS On July 25,1985, two police officers spotted petitioner leaving a renovated building carrying pipes to a truck parked across the street. It soon became apparent, at least to the officers, that petitioner was stealing the pipes. Petitioner was arrested at the scene. Following a jury trial on June 17, 1986 in New York Supreme Court, Kings County, petitioner was convicted of burglary in the first degree. N.Y.Penal Law § 140.30 (McKinney 1988). He was sentenced as a second felony offender to a term of two and one-half to five years imprisonment. Because the sole issue on federal habeas corpus review is appellate delay in the state system, a cataloguing of dates is inescapable. On June 18, 1986, petitioner filed a notice of appeal in the Appellate Division. In September 1986, the court appointed Legal Aid as appellate counsel but, because of a conflict of interest, Legal Aid sought to be relieved in December 1986. In March 1987, the court appointed Howard Schwartz as substitute counsel. Problems with appellate counsel, however, did not end there. While Mr. Schwartz endeavored to prepare an appellate brief for submission, petitioner filed pro se letters for information and permission to file an additional brief. Perplexed by pro se letters and delays in filing the appellate brief, the Appellate Division wrote to Mr. Schwartz inquiring about the status of petitioner’s brief. Receiving no response, the Chief Clerk again wrote to Mr. Schwartz in February 1988. On February 17, 1988, Mr. Schwartz responded that he would file the petitioner’s brief by March 17, 1988. After further delays, Mr. Schwartz finally filed a brief on petitioner’s behalf on April 19, 1988. In May of 1988, petitioner again requested permission to file a pro se supplemental brief and asked for the scheduled date of his oral argument. The Appellate Division notified petitioner that scheduling depended upon his filing of the pro se supplemental brief. On July 7, 1988, the Appellate Division scheduled October 2, 1988, as the due date for petitioner’s supplemental brief; the district attorney had until December 21, 1988 to respond. The People filed their brief on that date and oral argument was set for February 1, 1989. The judgment of conviction was unanimously affirmed on March 20, 1989. People v. Sinatra, 148 A.D.2d 646, 540 N.Y.S.2d 201 (2d Dep’t 1989). The instant petition for habeas corpus was originally filed in May 1988, prior to the completion of petitioner’s direct appeal in the state court. At the time of filing, the petition listed seven separate grounds for habeas corpus relief. To accommodate petitioner, this Court granted a request for counsel on the habeas corpus petition on July 20, 1988. Subsequently, counsel for petitioner informed this Court that the sole issue raised by the habeas petition, as amended, was the claim that petitioner was denied his right to a speedy appeal in contravention of due process. DISCUSSION Due process does not mandate that a state provide a means to appeal a criminal conviction. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). When a state provides that right, however, it must ensure that it is properly enforced, accommodating all aspects of due process and equal protection. Griffin, 351 U.S. at 18, 76 S.Ct. at 590; Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990). Petitioner contends that appellate delay violated his right to due process. I am not the first to observe that appellate delay has become a blight on the New York Criminal Justice system. See Wheeler v. Kelley, 639 F.Supp. 1374, 1378 (E.D.N.Y.), aff'd, 811 F.2d 133 (2nd Cir.1987). Although no bright-line has yet evolved to demark the point at which delay is no longer constitutionally tolerable, the Second Circuit has recently enumerated all the factors that enter the calculus, including: (1) the length of the delay; (2) the reason for the delay; (3) the diligence of petitioner in attempting to perfect his appeal; and (4) the prejudice to petitioner arising from the delay. Simmons, 898 F.2d at 868 (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972)); Brooks v. Jones, 875 F.2d 30, 31 (2d Cir. 1989). To those four standard criteria, the Second Circuit has added a fifth factor: whether and how soon the State will decide petitioner’s appeal. Brooks, 875 F.2d at 32; Wheeler v. Kelly, 639 F.Supp. 1374, 1381 (E.D.N.Y.), aff'd, 811 F.2d 133 (2d Cir.1987) (federal-state comity is a fifth consideration under Barker). Moreover, “[i]n determining whether a delay of a prisoner’s appeal violates due process ... no one factor is dispositive and all are to be considered together with the relevant circumstances.” Simmons, 898 F.2d at 868. A. Length of Delay Appellate delay was one of the original grounds set forth in petitioner’s May 1988 motion for a writ of habeas corpus. The essential claim was that appointed counsel had failed to submit an appellate brief. The record is now clear that counsel had actually submitted a brief on April 19, 1988. Respondent’s Affidavit at 6. In any event, the delay at that point was one year and ten months from the filing of petitioner’s notice of appeal. As already mentioned, further scheduling delays resulted, but these later delays were, in part, to accommodate petitioner’s strongly expressed desire to file a pro se supplemental brief. When the appeal was finally decided on March 20, 1989, the total time between conviction and appeal was approximately two and one-half years. “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S.Ct. at 2192. While there is, again, no per se rule, precedent in this Circuit would support a conclusion that the delay in this case is not “presumptively prejudicial.” See e.g., Simmons, 898 F.2d 868 (six years is clearly excessive); Mathis v. Hood, 851 F.2d 612, 614 (2d Cir.1988) (six years is “shocking”); Geames v. Henderson, 725 F.Supp. 681 (E.D.N.Y.1989) (three and one-half year delay is unconstitutional). This Court concedes that the time lapse between conviction and appeal is certainly substantial— substantial enough to approach “presumptively prejudicial” — and, accordingly, it warrants further inquiry into the other factors. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. B. Reason for Delay In Simmons, the principal reason for delay was the state court’s failure to supervise its appointed attorneys and to monitor its own calendar. 898 F.2d at 868. Similarly, the Mathis defendant had written a number of unanswered letters to a succession of attorneys appointed as appellate counsel. When Mathis requested that the Appellate Division look into the delay, the court clerk simply forwarded the letter to the attorney of record, who was already known to be unresponsive. 851 F.2d at 613. Here there was no such blatant calendar mismanagement. Each of at least four pro se inquiries about submitting a supplemental brief was promptly answered by the Appellate Division, as was each inquiry into the status of assigned counsel. Respondent’s Affidavit at 3-5, 8-11. More importantly, the Appellate Division acted to expedite the filing of petitioner’s brief. In a letter dated November 29, 1987, petitioner inquired into the status of his appeal and why his brief had yet to be filed. Within the next few months, the Appellate Division Clerk pursued the matter through written correspondence with Mr. Schwartz. By early March of 1988, it had become clear that counsel was being less than diligent. In a letter dated March 8, 1988, the Clerk warned counsel that if he did not perfect petitioner’s appeal quickly, he would be subject to disciplinary action. On April 19, 1988, counsel filed a brief, perfecting petitioner’s appeal. C. Petitioner’s Efforts Although petitioner cannot be faulted for the initial delay, a substantial amount of the delay between the filing of the brief and the ultimate resolution of the appeal can be attributed to him. Petitioner took nearly four months to file his long requested supplemental brief, knowing that oral argument could be scheduled only after his pro se submission. Shortly thereafter, the district attorney responded and the matter was then argued and decided within three months. The record does not reflect, however, that petitioner was so lax in his attempts to perfect his appeal as to waive his right to challenge appellate delay. See Wheeler, 639 F.Supp. at 1380. Therefore, further inquiry into all surrounding circumstances must be pursued. Id. at 1378. D. Prejudice to Petitioner In assessing any prejudice that may accrue to a petitioner through appellate delay, courts consider factors which are analogous to those used in assessing delays before trial, including: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern while awaiting the outcome of the appeal; and (3) undercutting a defendant’s grounds for appeal, or his defenses in the case of a retrial. Geames, 725 F.Supp. at 686. However, “[i]n a case involving a delay on appeal, these concerns are less likely to prejudice a defendant.” Id.; Wheeler, 639 F.Supp. at 1380-81 (citing Cousart v. Hammock, 580 F.Supp. 259 (E.D.N.Y.), aff'd, 745 F.2d 776 (2d Cir.1984)). Reviewing the record in this case, the Court does not find any appreciable prejudice to petitioner, certainly not enough to warrant federal habeas corpus relief. Petitioner makes no claim that the outcome of his appeal was affected by the delay, nor does he allege facts — such as the unavailability of witnesses — to show fatal harm to any available defenses. Additionally, since the judgment of conviction was ultimately affirmed, People v. Sinatra, 148 A.D.2d 646, 540 N.Y.S.2d 201 (2d Dep’t 1989), this Court cannot deem his period of incarceration oppressive. Prejudice, therefore, could only result from anxiety and concern over the outcome of his appeal, but the record does not support such a conclusion. E.Federal-State Comity A final factor in considering appellate delay is how soon the State will decide a pending appeal. Comity commands a presumption that a state will act on an appeal, and that a federal court should stay its hand if it would only hinder the appeal process. Wheeler, 639 F.Supp. at 1381. Because the appeal has already been decided, further discussion at this point is unnecessary. Simmons, 898 F.2d at 868 (Court found no error in district court’s conclusion that “disposition of the appeal while the habeas petition was pending changed [petitioner’s] custody from illegal to legal.”). CONCLUSION All factors having been weighed, the Court is convinced that the appellate delay in this case, although regrettable, does not rise to a deprivation of due process. Accordingly, the motion for a writ of habeas corpus must be, and hereby is, denied. SO ORDERED. . Ordinarily, a federal court may not consider a petition for habeas corpus unless the petitioner’s state remedies have been exhausted. 28 U.S.C. § 2254(b); see Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Boothe v. Superintendent, 656 F.2d 27, 31 (2nd Cir.1981). However, when the petition is based on an allegedly unconstitutional delay in the appellate process, exhaustion is not necessarily a bar to federal review. Brooks v. Jones, 875 F.2d 30, 31 (2nd Cir.1989); Mathis v. Hood, 851 F.2d 612, 615 (2d Cir.1988). . Because of a conflict of interest, approximately ten months elapsed while the issue of appellate counsel was resolved.

RULING GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND ORDER OF DISMISSAL VIETOR, Chief Judge. The court has before it defendants’ motion for summary judgment. Plaintiffs have resisted and oral arguments have been heard. Plaintiff Ralph J. Bell is the conservator and guardian for Sam H. Bell, as well as his father, and plaintiff Rose Ann Bell is Sam’s mother. Defendant County of Washington County, Iowa (County) is an Iowa municipality. The individual defendants were, at all relevant times, employees of the County. Defendant Yale H. Jarvis is the Washington County Sheriff. Defendant Francis L. Stigers was a jailor at the Washington County Jail and defendant Eileen Russell is a communications operator at the Washington County Jail. Plaintiffs’ claims arise out of the events surrounding Sam Bell’s suicide attempt while he was a prisoner in the Washington County Jail on November 6 and 7, 1987. The complaint states claims predicated on 42 U.S.C. § 1983, which allege that defendants violated Sam’s constitutional rights, as well as pendent claims based on state tort law. Defendants move for summary judgment on plaintiffs’ section 1983 claims. If defendants’ summary judgment motion is granted, defendants also ask that the pendent claims be dismissed. SUMMARY JUDGMENT STANDARD Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith 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.” To preclude the entry of summary judgment, the non-movant must make a sufficient showing on every essential element of its case on which it has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Continental Grain Co. v. Frank Seitzinger Storage, 837 F.2d 836, 838 (8th Cir.1988). Rule 56(e) requires the nonmoving party to go beyond the pleadings and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed.R. Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Johnson v. Schopf 669 F.Supp. 291, 295 (D.Minn.1987). The quantum of proof that the nonmoving party must produce is not precisely measurable, but “the nonmoving party must produce enough evidence so that a reasonable jury could return a verdict for the nonmovant.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986); Johnson, 669 F.Supp. at 295-96. On a motion for summary judgment, the court views all the facts in the light most favorable to the nonmoving party, and gives that party the benefit of all reasonable inferences to be drawn from the facts. Trnka v. Elanco Products Co., 709 F.2d 1223, 1225 (8th Cir.1983); Howard v. Russell Stover Candies, Inc., 649 F.2d 620, 623 (8th Cir.1981). FACTS The following facts are undisputed. On November 6, 1987, at approximately 10:26 p.m., Officer Jeff Richards, a City of Washington, Iowa, police officer, stopped Sam Bell’s vehicle. After Sam failed a field sobriety test, Officer Richards arrested him and charged him with operating a motor vehicle while intoxicated in violation of § 321J.2 of the Iowa Code. Officer Richards also arrested Roy Robertson, a passenger in Sam’s vehicle, on a charge of public intoxication. Officer Richards took both Sam and Roy to the Washington County Safety Center. Roy, who was seventeen years old, was released to the custody of a relative and was processed through the juvenile court authorities in Louisa County. Sam, who was eighteen years old, was booked and processed as an adult by the Washington County Jail staff. At the jail, Officer Richards read Sam his Miranda rights and questioned him regarding his activities earlier that evening. Officer Richards also gave Sam an intoxilyzer breath test which revealed that Sam’s breath alcohol concentration was .150 grams of alcohol per 210 liters of breath. Officer Richards turned the remainder of the booking process over to Jailer Fran Stigers. During the booking process, Jailer Stig-ers took the following possessions from Sam: his shoes, his jacket, a pocket knife, $.40 change, a wallet, and two condoms. Although Jailer Stigers performed a pat search of Sam’s person, he failed to detect and confiscate Sam’s belt. Jailer Stigers and Sam exchanged the following comments during the booking process: Stigers: Have you ever been in jail before? Sam: Nope, first time, first time for everything. Well, I think I’ll shoot myself. Stigers: Well sorry we don’t have a gun handy. Sam: Too bad. Stigers: So you’re going to have to live through it like everybody else does. Sam: A 45. On one of the booking forms entitled “Arrest Report” which Jailer Stigers filled out, there is a box which can be checked if the jailer suspects that the prisoner is a suicide risk. Although Sam made the above-mentioned comments regarding suicide, Jailer Stigers did not believe that Sam was a suicide risk. In accordance with his belief, Jailer Stigers did not check the “suicide risk” box. After completing the booking process at approximately 11:14 p.m., Jailer Stigers placed Sam in a cell adjacent to the “bull pen” area. The prisoners housed in the “bull pen” area could see and talk with Sam, but Sam was the only occupant of his cell. After placing Sam in his cell, Jailer Stigers conducted two jail checks. He conducted his last check of the cell block area at 11:46 p.m., at which time he observed Sam sleeping. At midnight, Richard Allison replaced Fran Stigers as the jailer on duty. Jailer Allison entered the cell block area to dispense medication at approximately 12:10 a.m., but does not remember seeing Sam at that time. A little while later, prisoner Bridges noticed Sam hanging from his cell door by his belt. Prisoner Bridges alerted the other prisoners and they activated the jail’s emergency alarm system at 12:28 a.m. and again at 12:29 a.m. When the alarm went off, Jailer Allison was in another area of the Center but he quickly returned to the cell block area. Jailer Allison, a trained paramedic, performed cardiopulmonary resuscitation on Sam, restarted his heart, and at 12:30 a.m. he requested an ambulance which took Sam to a local hospital for further treatment. Plaintiffs allege that as a result of the November 7th incident, Sam suffered physical injuries and severe, extensive, and permanent brain damage. DISCUSSION To state a claim under 42 U.S.C. § 1983 plaintiffs must “allege deprivation of a right, privilege or immunity secured by the Constitution and laws of the United States through the conduct of persons acting under color of state law.” Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986), quoted in, Harpole v. Arkansas Dept. of Human Services, 820 F.2d 923, 925 (8th Cir.1987). It is undisputed that defendants were acting under color of state law. Plaintiffs allege that defendants violated Sam’s constitutional rights under the eighth and fourteenth amendments to the United States Constitution as a result of the failure of some of the defendants to follow the Washington County Jail Policies and Procedures, to predict that Sam was a suicide risk, and to take precautions to prevent his suicide attempt. (Plaintiffs’ fourteenth amendment claim appears to be based on substantive due process rather than procedural due process.) Plaintiffs concede that if the defendants’ acts and/or omissions constitute only negligence, such negligence would not support a claim of deprivation of constitutional rights under section 1983. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Plaintiffs must show that defendants’ acts and/or omissions demonstrate a “deliberate indifference” to Sam’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Because this is a prisoner suicide case, in order to prevail under section 1983 for a violation of substantive rights, under either the eighth or fourteenth amendment, plaintiffs must establish that defendants displayed “deliberate indifference” to a strong likelihood, rather than a mere possibility, that Sam Bell would attempt suicide. Edwards v. Gilbert, 867 F.2d 1271, 1274-76 (11th Cir.1989). A. Section 1983 Action Against Eileen Russell Defendant Eileen Russell was the communications operator on duty when Sam attempted suicide. Plaintiffs allege that defendant Russell failed to properly monitor the cell block area via the jail’s closed circuit t.v. system. Plaintiffs, however, have failed to produce legally sufficient evidence from which a reasonable jury could find that defendant Russell displayed “deliberate indifference” to a strong likelihood that Sam would attempt suicide. The summary judgment record contains no evidence that shows that defendant Russell possessed any knowledge regarding Sam’s arrest and suicide potential. Accordingly, defendants’ motion for summary judgment on plaintiffs' section 1983 claims will be granted as to defendant Russell. B. Section 1983 Action Against Francis Stigers 1. MERITS Plaintiffs allege that defendant Stigers, among other things, failed to prop erly search Sam and confiscate his belt, failed to predict that Sam was a suicide risk, and failed to take appropriate precautions to prevent Sam’s suicide attempt. The summary judgment record demonstrates that genuine issues of material fact exist regarding whether defendant Stigers was “deliberately indifferent” to a strong likelihood that Sam would attempt suicide. For example, genuine issues of material fact exist regarding the seriousness of Sam’s suicide threat and whether Sam fit the prisoner “suicide profile”, which may be relevant to the “likelihood” of Sam’s suicide attempt. The summary judgment record shows that during the booking process Sam told defendant Stigers that he did not suffer from any mental disorders. The record also shows that Sam was intoxicated at the time of his arrest and that he made a suicide threat during the booking process. Defendants suggest that Sam’s suicidal statements do not constitute a serious suicide threat, but were merely casual, offhand statements. I have listened to the tape of the “booking” conversation and my ear detected a consistent note of despondency in Sam’s voice throughout the lengthy interview. Sam’s substantive answers and comments also suggest a feeling of despondency. This is not a case where there was no suicide threat. See, e.g., Rellergent v. Cape Girardeau County, Mo., 724 F.Supp. 662, 666 (E.D.Mo.1989) (in the absence of a previous threat or an earlier attempt at suicide, official conduct in failing to prevent a suicide does not constitute deliberate indifference). Nor is it a case where it is obvious that Sam’s suicidal statements were said in jest. See Estate of Cartwright v. City of Concord, 856 F.2d 1437, 1438 (9th Cir.1988) (under the circumstances, jailers reasonably believed that prisoner’s suicidal comments were a continuation of a joke that prisoner’s companion had started earlier in the evening). Instead, this is a case where there is a genuine issue of material fact regarding whether Sam made a serious suicide threat which should have alerted defendant Stigers to Sam’s suicide risk potential. This issue is best resolved by the jury after they have had a chance to hear and evaluate all of the relevant evidence. 2. QUALIFIED IMMUNITY Defendants also move for summary judgment on the basis of qualified immunity. To prevent bare allegations of malice from subjecting government officials to either the costs of trial or the burdens of far-reaching discovery, “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The qualified immunity defense involves a balancing of competing social interests so that officials who knowingly violate the law are held liable for their actions while allowing officials to reasonably perform their assigned duties without the fear of a lawsuit. Arcoren v. Peters, 829 F.2d 671, 673 (8th Cir.1987) (en banc). To determine the scope of the qualified immunity test, the court must “focus on the specific nature of the conduct complained of and the state of the law with respect to the identified conduct at the time the official acted.” Myers v. Morris, 810 F.2d 1437, 1459 n. 16 (8th Cir.1987). “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citations omitted). The issue before this court is whether Sam Bell’s liberty interests in personal security and freedom from punishment under the due process clause of the fourteenth amendment were clearly established on November 7, 1987, the date Sam attempted suicide. Was Sam entitled to have the jail personnel not be deliberately indifferent to a strong likelihood that he might harm himself? A pretrial detainee is entitled to, at a minimum, at least as much protection as that afforded convicted prisoners under the fourteenth amendment and no less a level of medical care than that required for convicted persons by the eighth amendment. E.g., Colburn v. Upper Darby TP, 838 F.2d 663, 668 (3rd Cir.1988). See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Since at least 1976, it has been clearly established that deliberate indifference to serious medical needs of prisoners constitutes “unnecessary and wanton infliction of pain” which is proscribed by the eighth amendment. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Estelle standard applies to cases where a prisoner had a serious medical need for psychological or psychiatric treatment. Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1187 (5th Cir.1986). See Woodall v. Foti, 648 F.2d 268, 272 (5th Cir.1981). See also Bee v. Greaves, 744 F.2d 1387, 1395 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). At the time of Sam Bell’s suicide attempt, the deliberate indifference standard had not been applied in the context of a jail suicide in the Eighth Circuit. Before November, 1987, however, other courts had sustained the viability of complaints alleging that jail officials demonstrated deliberate indifference to the strong likelihood that a prisoner would attempt suicide. See Partridge, 791 F.2d at 1187; Roberts v. City of Troy, 773 F.2d 720, 723-25 (6th Cir.1985); Madden v. City of Meriden, 602 F.Supp. 1160, 1163-64 (D.Conn.1985); see also Jackson v. City of Chicago, 645 F.Supp. 926, 928 (N.D.Ill.1986); Matje v. Leis, 571 F.Supp. 918, 930-31 (S.D.Ohio1983); cf. Vienneau v. Shanks, 425 F.Supp. 676, 679-80 (W.D.Wis.1977) (if detention in the jail is required for any purpose, and if there is reason to believe the prisoner may be disposed to suicide, the jail keeper is obliged to exercise his control over the prisoner’s environment in such a way as to protect him from himself during his detention). As noted, supra, plaintiffs have generated a jury question regarding whether defendant Stigers displayed a deliberate indifference to the strong likelihood that Sam would attempt suicide, rather than being merely negligent. I now conclude that the preexisting law made it apparent in November, 1987, that a jailer’s deliberate indifference to the strong likelihood that a prisoner would attempt suicide was unlawful. Contra Danese v. Asman, 875 F.2d 1239 (6th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1473, 108 L.Ed.2d 610 (1990). I agree that “custodial officials cannot be placed in the position of guaranteeing that inmates will not commit suicide. On the other hand, if such officials know or should know of the particular vulnerability to suicide of an inmate, then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability.” Colburn, 838 F.2d at 669. Based upon the preceding analysis, defendants’ motion for summary judgment on plaintiffs’ section 1983 claims will be denied as to defendant Stigers. C. Section 1983 Action Against Yale Jarvis And Washington County Plaintiffs allege that defendant County and defendant Sheriff Yale Jarvis failed to properly train and supervise the jail employees on their handling of suicide threats and attempts. “[T]he inadequacy of police training may serve as the basis for section 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989). Plaintiffs argue that the supervisory defendants’ failure to adequately train and supervise constitutes a custom and policy of deliberate indifference to the risk of suicide and suicide attempts at the Washington County Jail. Plaintiffs’ Brief In Support Of Resistance to Defendants’ Motion For Summary Judgment p. 5. Plaintiffs, however, have failed to produce legally sufficient evidence which would allow a jury to find the defendant County and defendant Jarvis liable under section 1983. It will not “suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct”, City of Canton, 109 S.Ct. at 1206, which appears to be the gravamen of plaintiff’s claim. The summary judgment record establishes that the County, through Sheriff Jarvis, had written policies and procedures which required jail personnel to screen all prisoners for possible emergency mental health and substance abuse problems. Defendants’ Exhibit 55, pp. 10-11. The County’s procedures also required jailers to ensure that all items that the prisoner could use to harm himself were taken from him. Defendants’ Exhibit 55, p. 10. The County had equipped the jail with video and audio equipment to aid in monitoring the cell block area. Additionally, the jail was equipped with emergency alarms which were accessible to the prisoners in the cell block area. It is undisputed that in 1986 defendant Stigers successfully completed a 40 hour course in jailer training provided by the Iowa State Training School and mandated by Iowa law. The course included a three hour segment which dealt with prisoners who had special medical problems including suicide risks. Plaintiffs’ expert Joseph Rowan examined the manual from which the course was taught and he opined in his deposition that he thought the content of the manual was adequate and comprehensive. Rowan Deposition pp. 61-2. In fact, Mr. Rowan teaches basically the same content in his 7 to 8 hour program. Rowan Deposition p. 62. In addition to the State Training School course, defendant Stigers, at the suggestion of his employers, attended a local seminar which discussed the subject of suicides in the community. Although plaintiffs have evidence that eight other prisoners had previously attempted suicide in the Washington County Jail, they have failed to come forth with sufficient evidence to show that defendant County’s alleged failure to train and supervise constitutes a custom or policy of deliberate indifference to the risk of suicide in the Washington County Jail. Because plaintiffs have failed to meet their burden, defendants’ motion for summary judgment will be granted as to defendant County and defendant Jarvis. RULING AND ORDER Based upon the preceding discussion, defendants’ motion for summary judgment on plaintiffs’ section 1983 claims IS DENIED as to defendant Stigers and IS GRANTED as to the other defendants. Because the section 1983 claims are not dismissed entirely, plaintiffs’ pendent state law claims will not be dismissed at this time. IT IS ORDERED that plaintiffs’ section 1983 claims be dismissed as to defendant County, defendant Russell, and defendant Jarvis. . The Washington County Safety Center houses the Washington County Sheriffs Department, the County Jail, the Washington City Police Department, and the dispatch and communications center for the City. . The comments mentioned in the text constitute only a portion of the entire conversation between Officer Richards, Jailer Stigers, and Sam, which occurred during the booking process. The conversation was taped and a transcript of the entire conversation is contained in Exhibit 14 which is attached to the parties' stipulated statement of facts. . Plaintiffs originally had named Richard Allison as a defendant. They also had named Alice Benischek, the communications operator who had been on duty until midnight, as a defendant. The parties stipulated to the dismissal of Allison and Benischek, and they are no longer parties to this lawsuit. . The jail is equipped with a closed circuit t.v. system with which the communications operator on duty can monitor the ceil block area while performing his/her other duties. Bileen Russell, who was the operator on duty, did not notice anything on the monitor and jail personnel were unaware of Sam’s suicide attempt until the prisoners activated the alarm system. . The jail suicide in Danese occurred in November of 1982. The majority of the cases that I have cited in support of the proposition that the law as it existed in November, 1987, made it apparent that a jailer's deliberate indifference to the strong likelihood that a prisoner would attempt suicide was unlawful, were decided after 1982.

PER CURIAM: Bacilio A. Amorrortu appeals the dismissal of his claims for lack of subject matter jurisdiction pursuant to Fed. R.CrvP. 12(b)(1). For the reasons stated by the district court, we conclude that Amorrortu has failed to allege a sufficient basis for jurisdiction under the Foreign Sovereign Immunities Act. See 28 U.S.C. § 1605. Accordingly, we AFFIRM. Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Dannie Ingram pleaded guilty in 2001 pursuant to a written plea agreement to one count of possession with intent to distribute and distribution of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1), and he was sentenced to a 198-month term of imprisonment. He appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of sentence. We review the denial of a § 3582 motion for abuse of discretion. Ingram’s argument that the district court should be able to exercise Booker discretion to resentence him rests on the false premise that § 3582 applies to his situation at all. “Section 3582(c)(2) permits a district court to reduce a term of imprisonment when it is based upon a sentencing range that has subsequently been lowered by an amendment to the Guidelines, if such a reduction is consistent with the policy statements issued by the Sentencing Commission.” This statute clearly is inapplicable to Ingram, whose sentencing range has not subsequently been lowered by Guidelines amendment. Amendment 706 reduced the base offense levels set forth in U.S.S.G. § 2Dl.l(c) applicable to most crack cocaine offenses. But a reduction in Ingram’s base offense level under § 2D1.1 pursuant to Amendment 706 would not affect his guidelines range because the range was calculated under § 4B1.1, the career offender guideline. Because Ingram’s guidelines range was not derived from the quantity of crack cocaine involved in the offense, he was not sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission. The district court did not abuse its discretion in denying Ingram’s motion for a reduction of sentence. Its judgment is AFFIRMED, the Government’s motion for summary affirmance is GRANTED, and the Government’s motion for an extension of time is DENIED as moot. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . U.S. v. Boe, 117 F.3d 830, 831 (5th Cir.1997). . U.S. v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir.1997) (emphasis added). . See U.S. v. Burns, 526 F.3d 852, 861 (5th Cir.2008). . See § 3582(c)(2).

OPINION OF THE COURT NYGAARD, Circuit Judge. Pursuant to L.A.R. 27.4, the Appellant’s sentence will be vacated and this matter will be remanded to the District Court for re-sentencing in light of the United States Supreme Court’s recent decision in Chambers v. United States, — U.S.-, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). The Government, via letter brief filed January 26, 2009, agrees that the Appellant’s sentence should be vacated and this matter remanded for re-sentencing consistent with the Supreme Court’s Chambers decision, supra.

PER CURIAM: Jimmy Richard Husband seeks to appeal the district court’s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appeal-ability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Husband has not made the requisite showing. Accordingly, we deny a certificate of ap-pealability 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.

PER CURIAM: Terrence Smith, proceeding pro se, appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) motion for sentence reduction. Smith’s § 3582(c)(2) motiob was based on Amendment 591 to the Sentencing Guidelines, which requires the selection of the applicable guideline be based on the statute of conviction, rather than judicial findings of relevant conduct not made by the jury. Smith asserts the offense level for his arson conviction, 18 U.S.C. § 844(i), was improperly based upon the guideline applicable to first-degree murder’, in light of Amendment 591. “We review de novo a district court’s conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir.2008). A district court may reduce the sentence “of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” provided that “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The applicable policy statements provide that a court may reduce a defendant’s sentence, pursuant to § 3582(c)(2), where “the guideline range applicable to that defendant has subsequently been lowered as a result of’ a covered amendment to the Guidelines. U.S.S.G. § lB1.10(a)(l). Amendment 591 became effective on November 1, 2000, and Smith was sentenced on July 30, 2001. Therefore, although the Amendment was made retroac tive by incorporation into U.S.S.G. § lB1.10(c), it does not constitute a subsequent amendment within § 3582(c)(2) and the applicable policy statement because it was already in effect at the time he was sentenced. See United States v. Stossel, 348 F.3d 1320, 1322 n. 2 (11th Cir.2003) (stating that a pro se inmate’s motion “could fit under § 3582(c) only if he was arguing his sentence should be modified based on a subsequent sentencing guideline amendment”). Moreover, we previously rejected Smith’s challenge to the calculation of his offense level by reference to the first-degree murder guideline in his direct appeal. See United States v. Smith, No. 01-14427, manuscript op. at 18-19, 61 Fed.Appx. 668 (11th Cir. Jan. 31, 2003). Accordingly, the district court did not err in denying the motion, and we affirm. AFFIRMED.