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4284502-23328

MEMORANDUM OPINION AND ORDER VIRGINIA M. KENDALL, District Judge. Plaintiff Nicholas Solivan (“Solivan”) filed suit against Thomas Dart, (“Dart”), Commander Michael Dembosz (“Dembosz”), Sergeant H. Thompson (“Thompson”), Officer Richard Revolorio (“Revolorio”), and the County of Cook, Illinois (“Cook County”) (collectively “Defendants”), for violations of 42 U.S.C. § 1983. Solivan alleges that he was a pre-trial detainee in the Cook County Department of Corrections whom the Defendants’ failed to protect in violation of his constitutional rights. Defendants filed a Motion to Dismiss contending that Solivan failed to allege the requisite knowledge and culpability to state a claim of deliberate indifference. Additionally, Defendants contend that the claims against newly-added Dembosz, Thompson, Revolorio and Cook County are time-barred by the applicable Illinois statute of limitations for § 1983 claims. For the following reasons, the Court denies the Motion to Dismiss with respect to Revolorio in Count I; grants the Motion with respect to Dart, Dembosz, Thompson and Cook County in Count I; and grants the Motion with respect to Count II. The Court also permits Solivan leave the file an Amended Complaint within 14 days to allege an indemnification charge against the County relating to Count I against Revolorio. I. STATEMENT OF FACTS The following facts are taken from Solivan’s Second Amended Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995). On March 3, 2009, Solivan was a pretrial detainee housed in Division One of the Cook County Department of Corrections (“CCDOC”) in Chicago, Illinois. (Doc. 68, ¶¶ 2, 14). Division One is considered maximum security and houses some of the most dangerous criminals in CCDOC. (¶ 16). Solivan was the only person of Hispanic origin housed in Tier C, Deck 2, while the significant majority of the other inmates were African-American. (¶ 17). At the time, Division One employed a “half and half policy” so that only one half of the inmates on an individual tier were permitted to be out of their cells and in the dayroom at a given time. (If 18). On the date in question, Solivan’s cell was in the half of cells that were open between 3:30 and 6:30 p.m. (f 19). On that day, Solivan’s cellmate exited their cell, while Solivan stayed and believed that he had locked the door. (¶20). Meanwhile, the inmates from the opened cells were allowed to walk the hallways, the designated common area and the day room. (¶21). At approximately 3:30 p.m., seven unnamed African American inmates entered Solivan’s cell and began striking him on his head and body causing severe injuries to his right eye, bleeding from his ear, numerous contusions to his face, and fractures of his lower back that left him in a wheelchair for the following 10 months. (¶ 23, 44). Solivan screamed for the duration of the five-minute attack as well as for the next two and a half hours. (¶¶ 24-25). The first time that a correctional officer attended to Solivan in his cell was at approximately 6:15 p.m. (¶ 25). Deputy Revolorio was the Tier officer assigned to Solivan’s tier during the time of the incident, and was solely responsible for 38 detainees. (¶¶ 7, 29). Revolorio was stationed in the control room, commonly referred to as the “bubble,” where he could not see into the cells nor into the common areas where inmates might be walking outside of their cells. (¶¶22, 26). From the bubble, Revolorio could not hear if any noise was coming from the cells because the television in the day room was very loud where the inmates were also working out. (¶ 27). The only area from which an officer could personally observe the common areas and cells was the catwalk, and Revolorio was aware that the inmates knew when there was no officer on the catwalk. (¶ 28). Revolorio remained in the bubble from 3:30 p.m. to 6:18 p.m., which violated several Cook County Jail Standards (“Jail Standards”), including requiring personal observation by an officer every 30 minutes and population headcounts every hour. (¶ 30-33). Solivan describes several additional prison conditions that he believes resulted in his alleged attack. Solivan contends that there were no light bulbs in his cell, no intercoms or emergency call buttons in the cells, and no overhead cameras on the Tier. (¶¶ 34-36). Most important for the incident, Solivan explains that cell doors could be manipulated by inmates by inserting toothpaste caps or bottle caps to obstruct the locking mechanism, though they would register as locked on the central panel in the bubble, as seen by Revolorio. (¶ 37). Solivan alleges that Revolorio knew of this problem with the cell doors long before the date of the incident, as the problem was discussed almost every day at roll call, as well as due to the bimonthly fights that erupted in Tier C Section 2. (¶ 38-39). Solivan alleges that Revolorio remained in the bubble from 3:30 p.m. to 6:18 p.m. though he knew there would be no direct supervision of the inmates, knew that the inmates knew this, and knew that if any inmate were attacked in his cell he would be unable to see or hear what happened. (¶ 41). Solivan initially filed suit pro se on March 30, 2010, against Dart and several John Doe officers, whom he described as being on duty at the time of the incident on March 3, 2009. (Doc. 5). Solivan then hired counsel, who filed his appearance on November 29, 2010. (Doc. 38). In Solivan’s First Amended Complaint, Solivan named as Defendants Cook County and Dart in his official capacity. Solivan also substituted the John Doe officers with Commander Dembosz, Thompson and Revolorio in their individual capacities. II. STANDARD OF REVIEW When considering a motion to dismiss under Rule 12(b)(6), the Court accepts as true all facts alleged in the complaint and construes all reasonable inferences in favor of the plaintiff. See Murphy, 51 F.3d at 717. To state a claim upon which relief can be granted, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Detailed factual allegations” are not required, but the plaintiff must allege facts that, when “accepted as true ... ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In analyzing whether a complaint has met this standard, the “reviewing court [must] draw on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. Id. A claim has facial plausibility when the pleaded factual content allows the Court to draw a reasonable inference that the de fendant is liable for the misconduct alleged. See Id. at 1949. III. DISCUSSION A pretrial detainee is constitutionally protected from undue punishment by the due process guarantee of the Fourteenth Amendment. Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir.2003). Defendants argue that his Complaint should be dismissed because the claims against the newly-named officers, to substitute for the John Doe Officers, are time-barred and the claim of failure to protect against Dart fails to plead a claim upon which relief can be granted. A. The Claims are Note Time-Barred Defendants argue that Solivan’s addition of the individual capacity claims against the newly-named Defendants Dembosz, Thompson and Revolorio violates Rule 15(c) and is barred by the applicable state of limitations. Section 1983 claims in Illinois are governed by Illinois’ two-year statute of limitations on personal injury actions. See Williams v. Lampe, 399 F.3d 867, 870 (7th Cir.2005). It is undisputed that Solivan named Dart and several John Doe defendants before the statute of limitations expired and Solivan argues that his amendment relates back to the original pro se Complaint under Rule 15(c)(1). To substitute the John Does with Dembosz, Thompson and Revolorio as individual defendants, Solivan’s amendment must satisfy Federal Rule of Civil Procedure 15(c)(1), which allows amendment to a pleading that would otherwise be time-barred when the amendment relates back to the date of the original pleading. Defendants do not dispute that the claim against them as individuals arose out of the conduct, transaction or occurrence set out in the original Complaint, thereby satisfying Rule 15(c)(1)(B). Rule 15(c)(1) provides, in relevant part, that amended pleadings may relate back when: the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within 120 days as provided by Rule 4(m), the party to be brought in by amendment (1) received notice of the action so that it will not be prejudiced in defending on the merits and (2) knew or should have known the action would have been brought against it, but for a mistake concerning the party’s identity. Here, the incident occurred on March 3, 2009, and Solivan timely filed his § 1983 suit on March 30, 2010, against Dart and several “John Doe” officers who were working their shift between 3 p.m. and 11 p.m. on that date, with specificity as to their duties save for their names. On November 11, 2010, Solivan filed a motion for extension of time for discovery, explaining that his incarceration prevented him from taking depositions, conducting legal research, and obtaining crucial evidence such as the videotape recorded by the officers after the incident. (Doc. 33). Solivan stated that Defendants had still failed to disclose the identities of the unknown officers despite his repeated requests, and that consequently Solivan was unable to properly serve them and send them interrogatories. (Doc. 33). He requested an extension on the close of discovery for a period of six months after his release from incarceration. The Court granted his motion to extend discovery on December 1, 2010, expressly noting in the minute order that it was unclear whether Dart had yet provided the identities of the John Doe officers, and that the statute of limitations may expire on March 3, 2011. (Doc. 37). Solivan also filed a motion for an order compelling discovery so that Dart would identify the unknown defendants, because Dart had provided only two last names and badge numbers, one of which was illegible. Defendants claim Solivan’s action did not provide adequate notice, citing to Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir.1980). However, more recent law dictates that the focus of Rule 15(c)(1)(c) is on the defendant rather than the plaintiff. See Krupski v. Costa Crociere S.p.A.,—U.S.-, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010). Since Krupski, “[t]he only two inquiries that the district court is now permitted to make in deciding whether an amended complaint relates back to the date of the original one are, first, whether the defendant who is sought to be added by the amendment knew or should have known that the plaintiff, had it not been for a mistake, would have sued him instead or in addition to suing the named defendant; and second, whether, even if so, the delay in the plaintiffs discovering his mistake impaired the new defendant’s ability to defend himself.” Joseph v. Elan Motor-sports Technologies Racing Corp., 638 F.3d 555, 559-60 (7th Cir.2011), reh’cj denied (Mar. 31, 2011), (Posner, J.) (reversing district court’s dismissal, due to the proposed amendment’s failure to relate back its substituted defendant after the statute of limitations had expired, in light of Krupski) ; see also Smetzer v. Newton, 1:10-CV-93-JVB, 2010 WL 3219135 (N.D.Ind. Aug. 13, 2010) (denying motion to dismiss John Doe officer defendants, despite “substantial case law in the Seventh Circuit that John Doe defendants described in a complaint do not meet Rule 15(c) because the word ‘mistake’ does not equate with ‘lack of knowledge’ ”, because Krupski may have changed the way John Does are treated under Rule 15(c) to permit amendment despite lack of “mistake”). In Wood, the court denied the amendment as not relating back because nearly six years had elapsed between the date the plaintiff took a police officer’s deposition and the date he sought to amend the complaint to name the officer as a party defendant when the remaining named defendants were all jailers. 618 F.2d at 1230. In contrast here, Solivan displayed diligence when he timely filed his pro se Complaint and repeatedly sought the names of the officers he cited as John Does in his timely pro se filings with the Court. He identified the John Doe officers as best he could based on their shift times on specific dates and at specific posts in the MCC and based on the incident log number for his injuries. See footnote 4, supra. He filed his pro se Complaint on March 30, 2010, and yet as of December 1, 2010, the Court noted that it was unclear whether Dart had yet provided the identities of the John Doe officers to Solivan, in response to his repeated requests for their names. (Docs. 5, 37). Based on Solivan’s repeated inquiries to the MCC, which are documented in the Record as motions to compel to which Dart and Cook County counsel remained relatively unresponsive, and motions for extensions of time due to Cook County’s delay in providing the officers’ names, it is evident that the officers he identified by shift date and time knew or should have known that he sought to name them individually as defendants in his suit. Although Solivan’s counsel appears to have been careless in amending the pro se Complaint despite having identified the officers, the Seventh Circuit held that while a plaintiffs carelessness in failing to discover his mistake is relevant to a defendant’s claim of prejudice, “carelessness is no longer a ground independent of prejudice for refusing to allow relation back.” Joseph, 638 F.3d at 560. Furthermore, Dembosz, Thompson and Revolorio do not argue that they experienced delays in service or insufficient notice so that they would be prejudiced in defending on the merits. See also Woods v. Ind. Univ.Purdue Univ. at Indianapolis, 996 F.2d 880, 888 (7th Cir.1993) (“The statute of limitations does not insulate from suit an individual who did not initially receive service (or other notice) in the correct capacity, so long as no prejudice resulted.”). Therefore, they should not be insulated from suit by an inmate who diligently sought their names to properly prosecute his claim. Therefore, the Court finds that Solivan has satisfied Rule 15(c)(1) in that his naming Defendants Dembosz, Thompson and Revolorio relates back to his original filing. B. The Complaint States a Claim for Deliberate Indifference Solivan, as a pretrial detainee, was constitutionally protected from punishment by the due process guarantee of the Fourteenth Amendment, and his claim is analyzed under the cruel and unusual punishment clause of the Eighth Amendment. Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir.2003) (pretrial detainee was “entitled to at least the same protection against deliberate indifference to his basic needs as is available to convicted prisoners under the Eighth Amendment”). Jail officials “have a duty ... to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). An “official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847, 114 S.Ct. 1970. To determine liability, a violation consists of two elements: (1) objectively, whether the injury is sufficiently serious to deprive the prisoner of the minimal civilized measure of life’s necessities, and (2) subjectively, whether the prison official’s actual state of mind was one of “deliberate indifference” to the deprivation. Id. at 834, 114 S.Ct. 1970; Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Deliberate indifference in such circumstances is defined as “criminal recklessness.” Farmer, 511 U.S. at 839-840, 114 S.Ct. 1970. The objective prong, a deprivation of life’s minimal necessities, includes “reasonable safety.” DeShaney v. Winnebago County Dep’t of Social Serv., 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). To claim that prison officials failed to prevent a violation of an inmate’s need for safety under the objective prong, a plaintiff must demonstrate “conditions posing a substantial risk of serious harm.” Farmer; 511 U.S. at 832-33, 114 S.Ct. 1970 (“[Gratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objective [nor] squares with evolving standards of decency.”). Solivan claims that the prison conditions presented a substantial risk of serious harm by Revolorio’s failure to leave the bubble during his shift, from where he could not see into the cells, nor into the common areas where inmates might be walking outside of their cells, nor hear any noise coming from the cells. (¶¶ 22, 26, 27). Revolorio’s failure to leave the bubble for almost three hours, if true, violated Jail Standards that require a visual check every 30 minutes, and left the catwalk — the only vantage point from which an officer could personally observe the common areas and cells — unmanned by an officer. (¶¶28, 30-33). Although pleading a violation of a state jail standard, in and of itself, does not state an Eighth Amendment claim, Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1087 (7th Cir.1986), Solivan has presented factual allegations that, if true, indicate that inmates are left visually and audibly unsupervised for hours, knowing that a substantial risk of harm is present. In addition, Solivan contends that there were no light bulbs in his cell, no intercoms or emergency call buttons in the cells, and no overhead cameras on the Tier. (¶¶ 34-36). If taken as true that cell doors could be manipulated by inmates by inserting toothpaste caps or bottle caps to obstruct the locking mechanism, and they would still register as locked on the central panel in the bubble, these circumstances could nave created a substantial risk of harm that materialized when Solivan was attacked inside his cell and screamed for two-and-a-half-hours without an officer coming to his aid. Giving Solivan the benefit of the inferences to which he is entitled at the pleading stage, Revolorio may have been visually and audibly disconnected from the inmates to such an extent that attacks could occur in a dark area that he believed was locked, while knowing that the inmates knew the limits of his supervision. Solivan states that the harm he suffered was significant: severe injuries to his right eye, bleeding from his ear, numerous contusions on his face, and fractures to his lower back that left him in a wheelchair for the following 10 months. The attack that Solivan endured was severe and presumably unwarranted. See, e.g., Pippion v. Peters, 1994 WL 530801, 1994 U.S. Dist. LEXIS 13892 (N.D.Ill. Sept. 28, 1994) (denying motion to dismiss a claim for failure to protect because plaintiff-prisoner sufficiently pled a substantial risk of harm that he was beaten severely by several inmates and immediately following the assault, his eyes were both swollen shut, required stitches, and left permanent vision damage). Consequently the Court finds that Solivan states a viable claim that a substantial risk of harm may have existed. The Court’s inquiry cannot stop there, as the second element of the officers’ actual state of mind of “deliberate indifference” to the deprivation must also be sufficiently pled. Deliberate indifference is something approaching total unconcern for a plaintiffs welfare in the face of serious risks, or a conscious, culpable refusal to prevent harm. Duane v. Lane, 959 F.2d 673, 677 (7th Cir.1992), citing McGill v. Duckworth, 944 F.2d 344, 347 (7th Cir.1991). A defendant must have “actual knowledge of impending harm easily preventable, so that a conscious, culpable refusal to prevent the harm can be inferred from the defendant’s failure to prevent it.” Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir.), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986) (abrogated on other grounds); see Sellers v. Henman, 41 F.3d 1100 (7th Cir.1994); Duane, 959 F.2d at 677. Such total disregard for a prisoner’s safety is the “functional equivalent of wanting harm to come to the prisoner.” McGill, 944 F.2d at 347. The Seventh Circuit has also defined “deliberate indifference” in more vivid terms: Prison employees who act with deliberate indifference to the inmates’ safety violate the Eighth Amendment. But to be guilty of “deliberate indifference” they must know they are creating a substantial risk of bodily harm. If they place a prisoner in a cell that has a cobra, but they do not know that there is a cobra there (or even that there is a high probability that there is a cobra there), they are not guilty of deliberate indifference even if they should have known about the risk, that is, even if they were negligent — even grossly negligent or even reckless in the tort sense— in failing to know. But if they know that there is a cobra there or at least that there is a high probability of a cobra there, and do nothing, that is deliberate indifference. Billman v. Indiana Dep’t of Corr., 56 F.3d 785, 788 (7th Cir.1995) (citations omitted). Solivan pleads that as a pre-trial detainee, he was the only person of Hispanic origin housed in the maximum security Tier C, Deck 2, while the significant majority of the other inmates were African-American. (Doc. 68, ¶ 17). These circumstances, Solivan argues, puts him in an “identifiable group of prisoners who are singled out for attack” which would obviate the need to establish Defendants’ actual state of mind. See Farmer, 511 U.S. at 843-844, 114 S.Ct. 1970. When making reasonable inferences in favor of Solivan, it is plausible that he faced an identifiable risk as a Hispanic pre-trial detainee housed in the maximum security ward of the CCDOC, of which the majority were African-American and knew that from within his cell, his beating would not be seen or heard by the only guard on duty for three hours. At this stage, Solivan has pled sufficient facts that, if true, would support a claim for relief. See Zarnes v. Rhodes, 64 F.3d 285, 289 (7th Cir.1995) (remanding case when pro se plaintiffs claim of “imminent potential” for assault by her mentally-ill cellmate was dismissed by district court for failure to plead “deliberate indifference”). Consequently, the Court finds that Count I of Solivan’s Complaint is sufficiently pled with regard to his individual claim against Revolorio for failure to protect. Nonetheless, Count I fails to plead any facts that involve Thompson, Dembosz or Dart despite naming them in the claim as jointly and severally liable for compensatory damages. Consequently, Count I is dismissed with respect to Thompson, Dembosz and Dart.

373231-18752

CUDAHY, Circuit Judge. This case arises out of an incident which took place when plaintiffs tried to cross a picket line manned by members of defend ant unions. Plaintiffs filed suit under the federal labor law for damages suffered in the incident, and asserted pendent state claims. They appeal final summary judgment for defendants on the federal claim. We affirm. I. Plaintiff Earl F. Landgrebe (“Land-grebe”), a former member of the United States House of Representatives from Indiana, is an officer and employee of Land-grebe Motor Transport, Inc. (“LMT”), a common carrier engaged in freight hauling, the other plaintiff in this case. All of the claims of Landgrebe and LMT are based on a single incident which took place on February 13, 1980. On that date defendants District 72, International Association of Machinists & Aerospace Workers, AFL-CIO, and Local 1227, International Association of Machinists & Aerospace Workers (collectively, the “Union”) were on strike at the plant of the Union Rolls Corporation (“Union Rolls”) in Valparaiso, Indiana. Members of the Union had been picketing at the plant since November 16, 1979. On February 13th Landgrebe, driving an LMT truck, completed two trips into the Union Rolls plant to pick up and haul away loads of merchandise. During those two trips members of the Union, picketing at the plant gate, stood in front of the truck, attempting to prevent access to the plant, but were not successful in preventing Landgrebe from entering the plant. Later that day, Landgrebe returned for a third load at the plant. As he approached the plant, driving down county route 250E (also known as “Industrial Drive”) after having turned off of US 30, there was a “congregation of additional pickets which was unusual at that particular time.” Smaroff Dep. (May 17, 1982) at 39. The pickets and the truck met, though exactly where on 250E is disputed. They may have met “quite a distance from the plant,” Smaroff Dep. (May) at 40, at a point from which the entrance to the plant was not visible, Landgrebe Affidavit at 2. On the other hand, they may have met in the vicinity of the primary point of picketing, Smaroff Dep. (Oct. 28, 1982) at 45-46, which was “right next to the sign” at the west end of the Union Rolls plant, Smaroff Dep. (May) at 32. In no event was the confrontation more than “one hundred feet, more or less, 250 feet” from the entrance to the plant. Landgrebe Dep. at 130. Landgrebe stopped the truck; the pickets advanced and surrounded it. According to Land-grebe’s deposition testimony, the pickets shouted various taunts and obscenities and several swung clubs, hitting the truck, breaking an outside mirror and shattering a side window and showering Landgrebe in the face with broken glass. He also testified that the air lines of the truck were damaged, and it was rendered inoperable for several days. The activities of the pickets ceased upon arrival of the sheriff, but Landgrebe and LMT were unable to pick up the third load of merchandise at the plant. The complaint commencing this action was filed in the district court for the Northern District of Indiana on February 12, 1982, alleging a claim under section 303 of the Labor Management Relations Act of 1947 (the “LMRA”), as amended, 29 U.S.C. § 187, based on an alleged unfair labor practice by the Union in violation of section 8(b)(4) of the National Labor Relations Act (the “NLRA”), as amended, 29 U.S.C. § 158(b)(4). Pendent state law claims for personal injury and property damage were also asserted. By agreement of the parties, the case was referred to a United States magistrate. Discovery was completed, and on July 26, 1983, the Union moved for summary judgment on the issue of liability under federal labor law. The magistrate granted summary judgment on December 20, 1983, in a thoughtful Memorandum of Decision and Order. The judgment on the federal claim was made final pursuant to Rule 54(b), Fed.R.Civ.P., on February 13, 1984. II. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In determining whether the moving party has shown there to be no material factual dispute, the court must view the evidence and all inferences to be drawn therefrom in the light most favorable to the opponent of the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). However, only those inferences which reasonably follow from the evidence need be considered by the court. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.), cert. denied, — U.S.-, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983). As amended, subsection (a) of section 303 of the LMRA, 29 U.S.C. § 187(a), declares that it is unlawful for a union to engage in any activity or conduct defined as an unfair labor practice in section 8(b)(4) of the NLRA, 29 U.S.C. § 158(b)(4). Subsection (b) gives any individual injured in his business or property by a violation of subsection (a) a right of action for the damages sustained and the cost of the suit. 29 U.S.C. § 187(b). The suit is subject to the limitations and provisions of section 301 of the LMRA, 29 U.S.C. § 185. Subsection (b) of section 8 of the NLRA, 29 U.S.C. § 158(b), defines certain actions by labor organizations or their agents as unfair labor practices. Among other things, the subsection defines certain secondary boycotting and secondary picketing as unfair labor practices. NLRB v. International Longshoremen’s Association, 447 U.S. 490, 504-05, 100 S.Ct. 2305, 2313-14, 65 L.Ed.2d 289 (1980). Secondary activity may be defined as activity in which the union applies economic pressure to a person with whom the union has no dispute regarding its own terms of employment in order to induce that person to cease doing business with, and thereby increase the pressure on, another employer, called the primary employer, with whom the union does have such a dispute. NLRB v. Local 825, International Union of Operating Engineers, 400 U.S. 297, 302-03, 91 S.Ct. 402, 405-06, 27 L.Ed.2d 398 (1971); Local 761, International Union of Electrical, Radio & Machine Workers v. NLRB, 366 U.S. 667, 671-72, 81 S.Ct. 1285, 1288-89, 6 L.Ed.2d 592 (1961) (“General Electric”)-, R. Gorman, Labor Law 240 (1976). See H.R. Conf.Rep. No. 510, 80th Cong., 1st Sess. 43, reprinted in 1947 U.S.Code Cong. & Ad.News 1135, 1149. In relevant part, section 8(b)(4) provides as follows: (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 use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or 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 case an object thereof is— (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; 29 U.S.C. § 158(b)(4). The final clause of the quoted portion of § 8(b)(4) (the “Proviso”) exempts from the provision primary strikes and primary picketing. United Steelworkers v. NLRB, 376 U.S. 492, 499, 84 S.Ct. 899, 904, 11 L.Ed.2d 863 (1964). Primary strikes are those which are directed against the employer with whom the union has the dispute concerning terms of employment. Primary picketing is picketing, generally at the situs of the primary employer, that attempts or is intended to increase the direct economic pressure on the primary employer by inducing others to honor the strike. The question presented by this appeal is whether there was a material issue of fact as to whether the conduct of the Union members was protected primary activity within the meaning of the Proviso to section 8(b)(4). If so, summary judgment was improper; if not, summary judgment was proper. III. The activity on the first two trips was located at the gate of the Union Rolls plant, Landgrebe knew the purpose of the pickets and whom their dispute was with and his access to other employers was never affected. Nevertheless, Landgrebe and LMT make three arguments in support of the proposition that this picketing and related activity was secondary and not primary. They first argue that the picketing was violent on the third trip and so not primary. Second, they argue that, since LMT is not the primary employer and the picketing clearly had as “an object,” see § 8(b)(4) (emphasis added), preventing LMT from doing business with Union Rolls, it is secondary. Third, they argue that by advancing down route 250E the pickets left the primary site and hence engaged in either ambulatory or common-situs picketing, and thus, on these facts, secondary activity. The first two arguments are disposed of by our decision in Bedford-Nugent Corp. v. Chauffeurs, Teamsters & Helpers, Local Union No. 215, 358 F.2d 21 (7th Cir.), cert. denied, 385 U.S. 821, 87 S.Ct. 48, 17 L.Ed.2d 59 (1966), and we turn to them first. There is no doubt the conduct of the Union — or more accurately that of its involved members and officials — was, at least as described by Landgrebe, violent, deplorable and, perhaps, tortious. However, primary picketing excluded by the Proviso from the definition of unfair labor practices under section 8(b)(4) does not become illegal secondary activity because it is accompanied by threats and violence. United Steelworkers, 376 U.S. at 501-02, 84 S.Ct. at 904-05; Federal Prescription Service, Inc. v. Amalgamated Meat Cut ters & Butcher Workmen, 527 F.2d 269, 274 (8th Cir.1975); Bedford-Nugent, 358 F.2d at 24. The legality of violent picketing, if primary, must be determined under other sections of the statute or under state law. United Steelworkers, 376 U.S. at 502, 84 S.Ct. at 905; Bedford-Nugent, 358 F.2d at 24. Thus the fact that violence was used in stopping Landgrebe and LMT from reaching the Union Rolls plant does not show there to be a disputed issue of material fact as to whether the picketing was primary or secondary. Indeed, in this regard the facts in the present case do not seem distinguishable from those in Bedford-Nugent. In that case union members not only picketed at the primary employer’s locations, but also placed nails and tacks at the entranceways to the premises, shot an air pistol at the radiators and windshields of the vehicles of approaching customers, blocked entrance-ways with pickets who refused to stand aside and threatened physical injury and property damage to customers who attempted to or did enter the primary employer’s premises. Bedford-Nugent, 358 F.2d at 23. Landgrebe and LMT’s second argument is that even if this is a case of primary picketing activity, so long as “an object” of the activity is to prevent secondary employees, such as employees of trucking firms, from doing business with the primary employer, it falls outside the protection of the Proviso, and so is prohibited by sections 8(b)(4) and 303. Primary activity is protected even though it may seriously affect neutral third parties. Operating Engineers, 400 U.S. at 303, 91 S.Ct. at 406; United Steelworkers, 376 U.S. at 502, 84 S.Ct. at 905; General Electric, 366 U.S. at 673, 81 S.Ct. at 1289. Indeed, “however severe the impact of primary activity on neutral employers, it [is] not thereby transformed into activity with a secondary objective.” National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 627, 87 S.Ct. 1250, 1259, 18 L.Ed.2d 357 (1967). Some disruption of the business relationships between the primary and secondary employers “is the necessary consequence of the purest form of primary activity.” Operating Engineers, 400 U.S. at 304, 91 S.Ct. at 407. Primary picketing has traditionally been a major weapon to implement the goals of a strike and has characteristically been aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt. United Steelworkers, 376 U.S. at 499, 84 S.Ct. at 904 (emphasis added). Thus primary picketing always has as one of its goals the inducement of secondary employees to, for example, stop handling the primary employer’s goods. Since the foreseeable disruptions necessarily caused by the purest form of primary activity are clearly protected by the Proviso, Operating Engineers, 400 U.S. at 304, 91 S.Ct. at 407; United Steelworkers, 376 U.S. at 496, 84 S.Ct. at 902; General Electric, 366 U.S. at 672, 81 S.Ct. at 1288; Meter v. General Drivers Local 120, 329 F.Supp. 1348, 1352 (D.Minn.1971), the object of inducing such disruptions must be likewise protected. This inducement of secondary employees is treated as “incidental” to the primary picketing, and so is sheltered by the Proviso. R. Gorman, Labor Law 254 (1976); 666 Cosmetics, Inc. v. Davis, 347 F.Supp. 389, 392 (S.D.N.Y.1972). This court has applied these principles in the past. In Bedford-Nugent we recognized that the union’s activities there were undertaken in part for the purpose of inducing customers to refuse to transport or otherwise handle plaintiff’s [the primary employer’s] goods and materials, or to perform any services, or in order to threaten, coerce or restrain plaintiff’s customers. The object of the activities was to force such customers to cease doing business with plaintiff and to force plaintiff [to accede to the union’s demands.] Bedford-Nugent, 358 F.2d at 23. However, since the activity took place at the premises of the primary employer, the activity was primary, and so protected by the Proviso. Id. at 24. Therefore, the fact that the Union had as an object the prevention of LMT’s truck from picking up the third load does not transform the picketing from primary to secondary. And this fact does not tend to show a disputed issue of material fact, nor is it a basis upon which a jury could find that this picketing was secondary. We now turn to Landgrebe and LMT’s third argument that the activity of the Union here was secondary not primary. They argue that by moving away from the Union Rolls gate down county route 250E for a distance not exceeding 250 feet, the picketers left the primary situs and became, in essence, either roving or common-situs picketers. They conclude that therefore the standards enunciated in common-situs and roving picketers cases are applicable. Though this argument is not without plausibility, we decline to follow it on these facts, no matter how generously construed. The evidence at this stage in this case consists of the depositions of Landgrebe and of Robert Smaroff, Manager of Administration and Personnel Services at the Union Rolls plant, and an affidavit executed by Landgrebe. The district court relied heavily on the deposition of Landgrebe and less on those of Smaroff. Dist.Ct.Mem. at 3. It is not disputed that during the first two trips the pickets were located right next to the gate of the Union Rolls plant. On the third trip, they were, according to Smaroff’s testimony, either “quite a distance from the plant,” Smaroff Dep. (May) at 40, or in the “vicinity” of their usual station at the plant gate, Smaroff Dep. (Oct.) at 45-46. At his own deposition, Landgrebe testified as follows concerning the distances involved: Q Was every act that you refer to in ... [the relevant parts] of your complaint committed on or about the picket line area at the Union Rolls plant? A The best of my recollection, I’ll say yes. (Landgrebe Dep. at 55.) Q And that all occurred on February 13, 1980? A Yes. Q And at the picket line at Union Rolls Corporation? A All right, I’ll say yes. (Landgrebe Dep. at 71.) Q Where did each of those acts that you referred to in your complaint occur? A On the highway approaching the entrance to Union Rolls. (Landgrebe Dep. at 113.) Q What acts are you complaining of in your complaint that did not occur at the Union Rolls facility? A Well, another thing, they happened in the road, the highway. It did not happen at the Union Rolls Corporation facility. Q It happened at the entrance to the Union Rolls facility, did it? A No, it did not happen at the entrance to the Union Rolls Corporation facility. Q How far from the entrance? A Well, hundred feet, more or less, 250 feet. I don’t know exactly. I didn’t measure. Q That’s pretty much in the general vicinity of the Union Rolls plant, isn’t it? A Pretty close by, that’s right. Q Pretty close, isn’t it? A Right. Q Did anything happen to you anywhere other than that 150 foot radius of the Union Rolls facility that you’re complaining about in your complaint? A I guess not, no. (Landgrebe Dep. at 130-131.) Landgrebe’s testimony does not support any inference that the pickets were not in close proximity to the plant gate. Thus the picketing remains primary, and so protected by the Proviso. United Steelworkers, 376 U.S. at 500, 84 S.Ct. at 904; Helgesen v. International Association of Bridge, Structural & Ornamental Ironworkers, Local Union 498, 548 F.2d 175, 182-83 (7th Cir.1977) (failure to confine picketing to employer’s gate was not, under circumstances, evidence that union acted with secondary object); Meter v. General Drivers Local 120, 329 F.Supp. at 1352. Landgrebe and LMT argue that even if the incident occurred in close proximity to the plant, it is not primary because of some other facts. According to Landgrebe’s testimony and affidavit the incident took place across a railroad spur and on the other side of an entrance to an uninvolved third-party plant near the Union Rolls entrance. Plaintiffs claim that access to this neutral plant (and others which could be reached by proceeding further down route 250E) was thereby effectively blocked. They contend that therefore the common-situs or ambulatory picketing cases apply, and the picketing is not primary.

768619-21106

LOURIE, Circuit Judge. Elizabeth A. Reese appeals from a decision of the United States Court of Federal Claims denying her motion for summary judgment and granting the United States’ cross-motion for summary judgment. Reese v. United States, 28 Fed.Cl. 702 (1993). Because punitive damages received in settlement of civil litigation are not excludable from a taxpayer’s “gross income” subject to federal income tax under section 104(a)(2) of the Internal Revenue Code, 26 U.S.C. § 104(a)(2) (1987), we affirm. BACKGROUND The facts of this case are undisputed. On March 11, 1985, Reese filed suit against her former employers in the United States District Court for the District of Columbia, alleging that she had been forced to terminate her employment because of gender discrimination and sexual harassment by her employers (1) in violation of the District of Columbia Human Rights Act (DCHRA), see D.C.Code Ann. § 1-2501 (1981); (2) in breach of her employment contract; and (3) amounting to an intentional infliction of emotional distress. Reese v. Hayden, Civ. No. 85-0827 (D.D.C. filed Mar. 11, 1985). Reese requested, inter alia, compensatory and punitive damages and won a jury verdict awarding her $150,-000 in compensatory damages and $100,000 in punitive damages. Following the trial, the defendants filed motions for judgment notwithstanding the verdict. The parties later entered into a “Release, Settlement and Indemnity Agreement,” according to which Reese agreed to dismiss her suit against certain defendants, and the remaining defendants agreed to withdraw their motions for JNOV. In addition, the remaining defendants agreed to pay Reese the $250,000 in total damages awarded pursuant to the verdict, plus costs and attorneys’ fees of $239,437.01. The sum of $489,437.01 was paid to Reese on January 28, 1987. Reese filed her 1987 federal income tax return, including in gross income the $100,-000 in punitive damages she received under the settlement agreement. On December 11, 1989, she filed an amended return for the calendar year 1987, claiming a refund of $32,-580, and asserting that punitive damages were excludable from gross income under section 104(a)(2) of the Internal Revenue Code, which excludes from gross income “any damages received ... on account of personal injuries or sickness.” Reese’s claim for refund was disallowed by the Internal Revenue Service (IRS). Reese then filed suit in the Court of Federal Claims seeking a refund of $32,580 plus court costs, expenses, interest, and attorneys’ fees. The parties filed cross-motions for summary judgment and the court granted summary judgment in favor of the United States. The court concluded that section 104(a)(2) is ambiguous. Reese, 28 Fed.Cl. at 706. Adhering to the general tenet that the language “gross income” is to be construed broadly and exemptions to gross income are to be construed narrowly, the court then concluded that the exclusion of section 104(a)(2) does not encompass punitive damages because the title and subject matter of section 104 are limited to payments received as “compensation” for injuries or sickness. It stated that such an interpretation is supported by the legislative history and the contemporaneous events relating to the adoption of the predecessor statute to section 104. Id. at 706-07. Reese now appeals from that judgment. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(3) (1988). DISCUSSION We review a decision of the Court of Federal Claims to grant summary judgment de novo. Quaker State Oil Ref. Corp. v. United States, 994 F.2d 824, 826 (Fed.Cir.1993). There being no dispute as to any material fact, our review of the decision turns on the proper interpretation of the Internal Revenue Code, a question of law for our de novo determination. See id. at 826-27. The question of law presented to us is whether punitive damages are received “on account of personal injuries” and therefore excludable from gross income under section 104(a)(2) of the Code. To resolve this question of statutory interpretation, we look first to the language of the statute. Martel v. Department of Transp., Federal Aviation Admin., 735 F.2d 504, 507 n. 6 (Fed.Cir.), cert. denied sub nom. Schapansky v. Department of Transp., 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 358 (1984). The Code provides that gross income includes “all income from whatever source derived.” 26 U.S.C. § 61(a) (1987). Section 104(a) excludes from gross income “compensation for injuries and sickness” and provides as follows: § 104. Compensation for injuries and sickness. (a) In general. — Except in the case of amounts attributable to (and not in excess of) deductions allowed under section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include— * * Hi * * (2) the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sick-ness____ 26 U.S.C. § 104 (1987) (emphasis added). Reese contends that the statute by its plain meaning excludes from gross income all damages received in a personal injury suit, including punitive damages, because such damages are received “on account of’ personal injuries. We disagree. The language “on account of’ is not free of ambiguity; rather, it is susceptible of at least two conflicting interpretations. See Reese, 28 Fed.Cl. at 706; Commissioner v. Miller, 914 F.2d 586 (4th Cir.1990). Reese interprets the language “on account of’ to describe a causal relationship between damages and injury according to which damages are received “on account of’ a personal injury whenever a showing of personal injury is a legal prerequisite for the award of those damages. In other words, any damages ultimately received in a case involving personal injury are damages received “on account of’ that personal injury. However, the government urges a tighter interpretation, one which defines a causal relationship according to which damages are received “on account of’ personal injuries only when the injury in and of itself justifies such damages. Under the government’s interpretation, punitive damages are not encompassed by the exclusion, because those damages are received, not because of a personal injury, but in large part “on account of’ a defendant’s egregious conduct and the jury’s desire to punish and deter such conduct. Both interpretations are plausible. We therefore disagree with Reese that the question of her tax liability is readily settled by the plain meaning of the statute. Consequently, we must “look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.” Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990). Section 104 is found in Part III of Subchapter B of the Code, entitled “Items specifically excluded from gross income.” Section 104 is entitled “Compensation for injuries or sickness.” 26 U.S.C. § 104 (emphasis added). “Compensatory damages” are commonly understood to mean damages “such as will compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury.” Black’s Law Dictionary 390 (6th ed. 1990). See Immigration and Naturalization Serv. v. National Ctr. for Immigrants, — U.S. —, —, 112 S.Ct. 551, 556, 116 L.Ed.2d 546 (1992) (“the title of a statute or section can aid in resolving an ambiguity in the legislation’s text”). Consistent with this common meaning of “compensatory damages,” section 104’s enumerated categories encompass only the replacement of losses resulting from injury or sickness. Section 104(a)(1) exempts amounts received under workmen’s compensation acts; section 104(a)(3) exempts amounts received through accident or health insurance; section 104(a)(4) exempts amounts received as a pension, annuity, or similar allowance for personal injuries or sickness; and section 104(a)(5) exempts amounts received as disability income. Reese’s proposed interpretation of section 104(a)(2) as reaching noncom-pensatory payments is therefore inconsistent with the title of section 104 and with the express provisions of sections 104(a)(1) and (a)(3)-(a)(5). See King v. Saint Vincent’s Hosp., — U.S. —, —, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991) (“[T]he meaning of statutory language, plain or not, depends on context.”). Furthermore, an abiding principle of federal tax law is that, absent an enumerated exception, gross income means all income from whatever source derived. See 26 U.S.C. § 61(a). “The income taxed is described in sweeping terms and should be broadly construed in accordance with an obvious purpose to tax income comprehensively.” Commissioner v. Jacobson, 336 U.S. 28, 49, 69 S.Ct. 358, 369, 93 L.Ed. 477 (1949). “[EJxemptions, on the other hand, are specifically stated and should be construed with restraint in the light of the same policy.” Id. Thus, all realized accessions to wealth are presumed to be taxable income, unless a taxpayer can demonstrate that an acquisition is specifically exempted. See Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430, 75 S.Ct. 473, 476, 99 L.Ed. 483 (1955) (it is the intention of Congress to tax all gains except those specifically provided for); Oklahoma Tax Comm’n v. United States, 319 U.S. 598, 606, 63 S.Ct. 1284, 1288, 87 L.Ed. 1612 (1943) (exemptions from taxation are not to be implied; they must be expressed). Viewed in its statutory context and against the presumption that all accessions are taxable unless specifically and unambiguously excluded, we conclude that Congress did not intend section 104(a)(2) to exclude from gross income noncompensatory damages such as punitive damages. “[Pjunitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct.” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266, 101 S.Ct. 2748, 2759, 69 L.Ed.2d 616 (1981). See also International Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 48, 99 S.Ct. 2121, 2125, 60 L.Ed.2d 698 (1979) (“Punitive damages ‘are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible con duct and to deter its future occurrence.’” [citation omitted]); Sigal Constr. Corp. v. Stanbury, 586 A.2d 1204, 1219 n. 26 (D.C.App.1991) (“Punitive damages are penal in nature and are designed to punish a knowing wrongdoer[, whereas c]ompensatory damages, on the other hand, serve to compensate the victim, with little, if any, attention paid to the intention behind the negligent action.”). Reese argues that the damages she received through her action under the DCHRA, despite their punitive “label,” are all compensatory. She reasons that “[s]ince DCHRA expressly provides only for the award of compensatory damages, all awards made under this specific provision are ipso facto compensatory in nature.” As Reese points out, the U.S. District Court for the District of Columbia has been inconsistent concerning whether punitive damages are available under the DCHRA. Compare Green v. American Broadcasting Co., 647 F.Supp. 1359 (D.D.C.1986) (allowing punitive damages under the DCHRA) with Thompson v. International Ass’n of Machinists & Aerospace Workers, 614 F.Supp. 1002 (D.D.C.1985) (punitive damages are not available under the DCHRA). However, the District of Columbia Court of Appeals recently answered the question in the affirmative. In Arthur Young & Company v. Sutherland, 631 A.2d 354 (D.C.App.1993), the court concluded that “the Council of the District of Columbia, in enacting the DCHRA, intended to include punitive damages in the arsenal of available remedies for discrimination.” 631 A.2d at 371. Thus, the District of Columbia Court of Appeals has interpreted the DCHRA as permitting punitive damages as well as compensatory damages, thereby distinguishing between them and blunting the force of Reese’s argument. The complaint filed by Reese in district court specifically requested both compensatory and punitive damages, and the jury instructions proposed by Reese and those actually given to the jury by the court clearly distinguished between compensatory and punitive damages. The following proposed jury instruction regarding damages was submitted to the court by Reese: If you find in favor of Elizabeth Reese for her claim of intentional infliction of emotional distress, you should award [her] an amount to fully and fairly compensate her for any mental pain and suffering, nervousness, indignity, humiliation, embarrassment, and insult to which she was subjected and which is a direct result of the offending conduct. Moreover, you may, but are not required to, award an additional sum in punitive damages. The purpose of punitive damages is to punish a Defendant and to discourage any of them and others from committing similar acts. Any award you make in punitive damages should be sufficient in amount to, in your best collective judgment, serve the purposes of punishment and deterrence [emphasis added]. In addition to instructing the jury that it could award damages to Reese to compensate her for her injuries, the following jury instruction was given to the jury: The plaintiff is also requesting an award of punitive damages against the defendant. Punitive damages are damages above and beyond the amount which you may award for compensatory or nominal damages. Punitive damages are awarded to punish the defendant and to deter others from engaging in similar conduct in the future. However, you may award punitive damages only if you find that the act or acts of the defendant were malicious and in willful, wanton or reckless disregard of plaintiffs rights [emphasis added]. Thus, the characterization of punitive damages as being distinct from compensatory damages in order to punish and deter conduct was emphasized by the jury instructions. Accordingly, the jury separately awarded compensatory and punitive damages. There is also evidence in the legislative history of section 104(a)(2) supporting the conclusion that punitive damages are not ex-cludable from gross income. See Haggar Co. v. Helvering, 308 U.S. 389, 394, 60 S.Ct. 337, 339, 84 L.Ed. 340 (1940) (statute must be construed in light of its legislative purpose). The predecessor statute to section 104(a)(2), section 213(b)(6) of the Revenue Act of 1918, excluded from taxable income “[a]mounts received, through accident or health insurance or under workmen’s compensation acts, as compensation for personal injuries or sickness, plus the amount of any damages received whether by suit or agreement on account of such injuries or sickness.” Preceding the enactment of section 213(b)(6), the Secretary of the Treasury requested an opinion from the Attorney General concerning the tax treatment of accident insurance proceeds received on account of personal injuries. See 31 Op.Atty.Gen. 304 (1918). In response, the Attorney General concluded that “the proceeds of an accident insurance policy [were] not ‘gains or profits and income’ ” but were instead a return of capital and hence were not taxable in accordance with statute and precedent. Id. at 308; accord Doyle v. Mitchell Bros. Co., 247 U.S. 179, 185, 38 S.Ct. 467, 469, 62 L.Ed. 1054 (1918). After the Attorney General’s report, the IRS issued a decision holding that “the proceeds of an accident insurance policy received by an individual on account of personal injuries ... [were] not taxable____” T.D. 2747, 20 Treas.Dec.Int.Rev. 457 (1918). Moreover, the IRS held “upon similar principles that an amount received by an individual as the result of a suit or compromise for personal injuries” would not be taxable. Id. Subsequent to these events, section 213(b)(6) was enacted. In a 1918 report of the House Committee on Ways and Means, Congress explained the rationale behind section 213(b)(6), as follows: Under the present law it is doubtful whether amounts received through accident or health insurance, or under workmen’s compensation acts, as compensation for personal injury or sickness, and damages received on account of such injuries or sickness, are required to be included in gross income. The proposed bill provides that such amounts shall not be included in gross income. H.R.Rep. No. 767, 65th Cong., 2d Sess. 9-10 (1918). With the passage of section 213(b)(6), Congress likely intended to codify the IRS’s stated approach, which was in turn based on the Attorney General’s opinion. After the enactment of section 213(b)(6), the IRS noted that “so far as personal injuries are concerned, [section 213(b)(6) ] is merely declarative of the [Attorney General’s and IRS’s] conclusions and intended to go no further.” 2 C.B. 71, 72 (1920) (citing 31 Op.Atty.Gen. 304 and T.D. 2747). The IRS continued: “These conclusions rest, as stated, upon the theory of conversion of capital assets. It would follow that personal injury not resulting in the destruction or diminution in the value of a capital asset would not be within the exemption.” Id. at 72. In view of the focus on the “conversion of capital assets” theory in the passage of section 104(a)(2)’s predecessor, it would be inconsistent with the legislative history to treat punitive damages as excludable from income, since punitive damages in no way resemble a return of capital. Accord Glenshaw Glass, 348 U.S. at 432 n. 8, 75 S.Ct. at 478 n. 8 (“The long history of departmental rulings holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital cannot support exemption of punitive damages____ Damages for personal injury are by definition compensatory only.”) (citations omitted); Miller, 914 F.2d at 589 (“[P]unitive damages, as the name connotes, are rather a punishment for and deterrent to wrongdoing than a means of recompensing the victim. To the victim they are a windfall not necessarily related to the injury he has suffered.”) (construing Maryland law). Similarly, references to accident and health insurance receipts and workmen’s compensation also emphasize the “compensation for loss” aspect of the exclusion, and further indicate the intent of Congress. In contrast, punitive damages represent a pure accession to a taxpayer’s wealth and cannot be excluded as compensation for personal injury. Notwithstanding the evidence that Congress did not intend to exclude punitive dam ages from gross income under section 104(a)(2), Reese urges that case law holds that the proper interpretation of the phrase “any damages received ... on account of personal injuries” in section 104(a)(2) requires focus on the nature of the underlying cause of action, rather than on the nature of the specific damages at issue. Provided the underlying cause of action is tort-like, Reese asserts that all awards “naturally flow[ing] from the harm which the plaintiff received” are properly excluded from gross income. In particular, Reese relies on United States v. Burke, — U.S. —, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992). In Burke, the Supreme Court addressed the question whether a payment received in settlement of a back-pay claim under Title VII of the Civil Rights Act of 1964 is excludable from a recipient’s gross income under section 104(a)(2) as “damages received ... on account of personal injuries.” — U.S. at —, 112 S.Ct. at 1868. The Court held that to qualify for exclusion under section 104(a)(2), damages received must redress a tort-like personal injury. Id. at —, 112 S.Ct. at 1872. In determining whether the injury involved was tort-like, the Court noted that a “hallmark[ ] of traditional tort liability is the availability of a broad range of damages[,]” including “punitive or exemplary damages ... in those instances where the defendant’s misconduct was intentional or reckless.” Id. at—- —, 112 S.Ct. at 1871-72. The Court concluded that the “remedial scheme” under Title VII “consist[ed] of restoring victims, through backpay awards and injunctive relief, to the wage and employment positions they would have occupied absent the unlawful discrimination [and did not] evidence a tort-like conception of injury and remedy.” Id. at —, 112 S.Ct. at 1873. Therefore, the underlying action was held not to be for “personal injury” within the meaning of section 104(a)(2). The Burke case, however, did not present facts requiring the Court to determine whether punitive damages awarded in a personal injury action are received “on account of’ personal injury so as to be excludable from gross income by virtue of section 104(a)(2). The case did not involve punitive damages; thus, we do not regard Burke as controlling or even relevant to our interpretation of the statute on this point. The Court’s reference to punitive damages was merely part of a broad definition of tort liability rather than a holding that punitive damages were “compensation for injuries or sickness,” excludable from income under section 104(a)(2).

1801753-12730

KEARSE, Circuit Judge: Defendant Natural Petroleum Charterers Incorporated (“NPC” or “NPCI”) appeals from a final judgment of the United States District Court for the Southern District of New York, Milton Pollack, Judge, confirming an arbitration award in favor of plaintiff Trade & Transport, Inc. (“Trade”), in the sum of $625,752.01 plus interest. See 738 F.Supp. 789 (1990). During the pend-ency of the arbitration, but after a partial final award had been rendered, a member of the three-member arbitration panel died. The district court ruled that the resulting vacancy had been properly filled and the arbitration had been properly conducted. On appeal, NPC contends principally that the partial final award should have been set aside and that a new panel should have arbitrated the dispute ab initio. For the reasons below, we affirm the judgment of the district court. I. BACKGROUND The present controversy concerns procedures in connection with an arbitration to resolve a substantive dispute between the parties with regard to an agreement pursuant to which NPC chartered the M/V NI-KOS KAZANTZAKIS (the “Vessel”) from Trade to carry petroleum products from the United States to Europe in five voyages. The facts with respect to the arbitration proceedings are not materially in dispute. A. The Substantive Dispute and the Commencement of Arbitration The substantive dispute concerned the designation of dates for the fourth of the five scheduled voyages. In October 1981, pursuant to the terms of the contract, Trade designated certain dates within which it would tender the Vessel and NPC could load the cargo for the fourth voyage. NPC made no response, and Trade later amended its designation of dates for that voyage. NPC objected that the new dates were outside the range permitted by the contract and that Trade’s designation was therefore a breach. NPC sent its cargo on another ship and the NIKOS KAZANTZAKIS eventually took mitigating steps. The charter contract contained an arbitration clause, which provided, in part, as follows: Any and all differences and disputes of whatsoever nature arising out of this Charter shall be put to arbitration in the City of New York pursuant to the laws relating to arbitration there in force, before a board of three persons, consisting of one arbitrator to be appointed by the Owner [Trade], one by the Charterer [NPC], and one by the two so chosen. The decision of any two of the three on any point or points shall be final.... The arbitrators may grant any relief which they, or a majority of them, deem just and equitable and within the scope of the agreement of the parties, including, but not limited to, specific performance. Trade invoked this clause with respect to the dispute over the fourth voyage. It nominated Lloyd C. Nelson as its member of the proposed arbitration panel. NPC nominated Frank L. Crocker as its member of the panel. Nelson and Crocker chose Manfred W. Arnold to be the third member, and chairman, of the panel. The first arbitration hearing was held on December 9, 1981. On that day, Trade commenced the present action against NPC in federal court for fraud and breach of contract, seeking both damages for the lost fourth voyage and demurrage accumulated from the first three voyages. Trade attached NPC assets to secure its claim of damages; NPC promptly moved to vacate the attachments. On December 17, the district court, in order to avoid interfering with the arbitration by making its own decision as to issues that the parties had committed to arbitration, suggested that the parties have the arbitration panel hold an immediate hearing on the contract claim. The parties agreed to do so. 1. The Partial Final Award At the arbitration hearing on December 18, the parties asked the arbitrators to make an immediate determination as to liability for cancellation of the fourth voyage, leaving for a later time the calculation of damages, if any, for that voyage and de-murrage for the first three voyages. Counsel for Trade outlined Trade’s understanding of the purpose of the hearing, stating as follows: I don’t think it is necessary to go so far as to physically render an award, because I think there are areas here that cannot in fact be determined today, dollars and cents damage amounts, but I think findings can be made with regard to the issue of liability, reserving for a future time or a future hearing the actual physical calculation of the dollars and cents amounts that might be involved. Counsel for NPC agreed: There are two claims in this Arbitration. One claim is that the Charterer, NPCI, breached the Contract of Af-freightment with respect to wrongful cancellation of the NIKOS KAZANTZAKIS for voyage number 4. That is a cancellation problem.... The second issue is, is the Charterer, NPCI, responsible for demurrage.... I am not in the position tonight to comment on demurrage. I don’t think the Arbitrators need to sit on a Friday night to consider a claim for demurrage.... What I think the Arbitrators can do tonight is to deal with the root problem that led to this Arbitration going forward on the basis that it did. That is to say, they [Trade] have contended that the vessel was wrongfully cancelled.... The question of cancellation is a straightforward question. You can consider whether the vessel was tendered within the proper time or not, and you can decide that issue. The question to detain us in which I hope you can answer was the vessel rightfully cancelled? [sic ] And I am prepared to proceed on that basis. The arbitration panel acceded to the parties’ request. It proceeded immediately to hear evidence and argument, and rendered its decision on liability on that day (“December 1981 Award”), stating that it had agreed “to render a partial final award” immediately “because counsel for both parties have so requested.” In the December 1981 Award, the panel unanimously found that NPC had “fail[ed] to provide [Trade] with a fourth cargo under the contract,” and it therefore found NPC liable for any damages flowing from the cancellation of the fourth voyage. 2. NPC’s Motion for Reconsideration In 1982, NPC asked the panel to hear additional evidence on the liability question, arguing that Trade had presented false evidence at the December 18 hearing. In connection with this motion, the panel conducted two hearings. In an Interim Opinion dated August 10, 1983 (“Interim Opinion”), the panel unanimously denied the motion on both substantive and procedural grounds. The panel rejected NPC’s contention that the December 1981 Award could be reconsidered as nonfinal: At page 208 of the transcript, the panel stated that it would render “a partial final award”. The decision was final with respect to the liability with the determination of damages to be dealt with at a later date. To remove the element of finality, which [NPC is] suggesting, would strip the partial final award of any significance at all. Interim Opinion at 5. Given the finality of the December 1981 Award, the panel stated that it was, with respect to that award, functus officio, i.e., without power to modify it. The Interim Opinion stated that “[i]t is the panel’s understanding that the state of the law is such that it does not permit a panel to review or modify a Partial Final Award which has the same finality and effect as a Final Award.” Id. at 4 n.*. The panel stated that it had acceded to NPC’s request for a further hearing only because of the “special circumstances,” i.e., that (1) both counsel represented to us that the Federal Court had requested the expedited hearing for the purpose of our making a finding of fact on a material issue; (2) a Partial Final Award was issued; (3) the Federal Court may have in its proceeding been guided or influenced by this Partial Final Award and (4) counsel for [NPC] alleged that the panel received false testimony and/or fraudulent evidence. We believe that when an arbitration award is rendered as a final award or, as in this instance, a partial final award, the arbitrators become functus officio as to the issue upon which the Final or Partial Final Award was made. Id. at 4. The panel also concluded that the award had not been based on fraudulent evidence. See id. 3. The Death of Crocker In August 1984, before further proceedings in the arbitration, Crocker died. In April 1985, NPC nominated Jack Berg as its new arbitrator to replace Crocker. In August 1985, it moved in the district court to compel Trade as well to nominate a new arbitrator; it contended that the two new arbitrators should, under the arbitration provision of the contract, appoint the third member of the new panel and proceed to rearbitrate the entire dispute from the beginning. After a hearing, the district court, by order dated September 24, 1985 (“September 1985 Order”), denied NPC’s motion insofar as it requested appointment of a new panel. Instead, relying on its powers under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (1982) (“Arbitration Act” or “Act”), the court appointed NPC’s nominee, Berg, as the replacement for Crocker on the original panel. Pointing to the provision in 9 U.S.C. § 5 for judicial “filling [of] a vacancy,” the court reasoned that “[t]he statutory authority to fill a vacancy must necessarily be construed to refer to a pending arbitration.” September 1985 Order at 2. The court remanded the case to the reconstituted panel to “proceed with all convenient speed to determine all questions involved in the submission of the parties, including the effect, if any, to be given to the hearing heretofore had, and the Partial Final Award heretofore rendered by the Arbitrators, and whether hearings of the arbitrators shall be limited to the issue of damages.” Id. at 2-3. B. Continuation of the Arbitration and Confirmation of the Award Appearing before the reconstituted panel of arbitrators, NPC pursued its efforts to have the dispute rearbitrated ab initio. It asked Arnold to resign and allow a new chairman to be chosen. Arnold refused, citing the district court’s decision that, with the addition of Berg, the panel was properly assembled and could determine its own course. Arnold and Nelson agreed, with Berg not voting, that the December 1981 Award’s finding of liability was correct, and that, as a partial final award, it could not be disturbed. The panel proceeded to hear evidence, and it eventually awarded damages to Trade. Berg dissented in part from the damage award. In an opinion reported at 738 F.Supp. 789, the district court confirmed the damage award over objections by NPC. These objections related primarily to (a) the court’s insertion of Berg into the existing panel and refusal to order the creation of an entirely new panel, and (b) the reconstituted panel’s refusal to hear further evidence concerning liability for cancellation of the fourth voyage. The district court reaffirmed its ruling concerning Berg’s replacement of Crocker and found the other objections to be without merit because the scope of the panel’s inquiry had been expressly left to its discretion. This appeal followed. II. DISCUSSION On appeal, NPC principally renews its contentions that the December 1981 Award was not final, that the panel acted improperly in refusing to reconsider the liability ruling, and that the Arbitration Act required that there be a whole new panel after Crocker’s death. We find no merit in any of NPC’s arguments, and we therefore affirm the judgment of the district court confirming the arbitration award. In its challenges to the refusals to reopen the issue of liability, NPC relies on two general principles, neither of which is controlling here. First, it relies on the general rule that where one member of a three-person arbitration panel dies before the rendering of an award and the arbitration agreement does not anticipate that circumstance, the arbitration must commence anew with a full panel. Cia de Navegacion Omsil, S.A. v. Hugo Neu Corp., 359 F.Supp. 898, 899 (S.D.N.Y.1973); Fromer Foods, Inc. v. Edelstein Foods, Inc., 14 Misc.2d 1048, 1049, 181 N.Y.S.2d 352, 353 (Sup.Ct.Bronx County 1958); Amalgamated Association of Street Electric Railway & Motor Coach Employees v. The Connecticut Co., 142 Conn. 186, 112 A.2d 501, 505-06 (1955); Annotation, Effect of vacancy through resignation, withdrawal, or death of one of multiple arbitrators on authority of remaining arbitrators to render award, 49 A.L.R.2d 900, 903-05 (1956). Second, it relies on the general rule that an arbitral determination is not final unless it conclusively decides every point required by and included in the submission of the parties. La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 573 (3d Cir.1967).

4325876-20147

OPINION AND ORDER DANIEL R. DOMÍNGUEZ, District Judge. Pending before the Court are the following motions: (a) Defendants’ Motion to Alter, Amend or Relief from Judgment, Docket No. 2408; (b) Suiza’s Response to Defendants’ “Motion to Alter, .Amend or Relief from Judgment” (Dkt. No. 2408), Docket No. 2418, and (c) Vaquería Tres Monjitas, Inc. ’s Reply to Dockets 2408 and 2409, Docket No. 2428. Intervening Industria Lechera de Puerto Rico (“INDULAC”) also moved the Court to alter or amend judgment, Docket No. 2409; Suiza’s opposition, Docket No. 2418, and VTM’s reply to Docket entries No. 2408 and 2409, filed under Docket No. 2428. For the reasons set forth below, the requests filed by both the defendants and INDULAC to alter, amend or modify the Amended Order and Judgment of November 7, 2013, Docket No. 2351, are denied. Factual and Procedural Background On October 29, 2013, the parties, Vaquería Tres Monjitas, Inc. (“VTM”); Suiza Dairy, Inc. (“Suiza”), the Secretary of the Department of Agriculture of the Commonwealth of Puerto Rico (the “Puerto Rico Department of Agriculture”), the Hon. Myrna Comas in her official capacity, and as Acting Administrator of the Office of the Milk Industry Regulatory Administration (“ORIL”), and the Commonwealth of Puerto Rico through the Secretary of Justice of the Commonwealth of Puerto Rico, the Hon. Luis Sánchez Betances signed and filed a Final Settlement Agreement and Memorandum of Understanding Between the Parties (the “Settlement Agreement”), see Docket No. 2322. The Court is cognizant that the PRDFA moved the Court since October 30, 2013 to stay the entry of judgment, see Docket No. 2324, on the grounds that the PRDFA were not part of the negotiations, hence, the terms and conditions of the settlement agreement are completely unknown to the PRDFA, including the amendments agreed to the provisions of Regulation No. 12. The PRDFA prayed for “a reasonable amount of time for the proper scrutiny of the new administrative Regulation and Price Order which affects not only the parties to the settlement, but all participants in the industry and the general public at large.” See Docket No. 2324. See also INDULAC’s Urgent Opposition to the Adoption of Final Settlement Agreement and Memorandum of Understanding Between the Parties, Docket No. 2328. The record also shows that the PRDFA eventually filed a Notice of Appeal, Docket No. 2354. This matter is now pending before the United States Court of Appeals for the First Circuit (“First Circuit”), USCA Case No. 13-2412. However, since the PRDFA’s request for stay was denied by both the District Court and the First Circuit, an order will be issued separately by the District Court in Civil No. 08-2191. Likewise, INDULAC’s arguments regarding prejudice triggered by the Settlement Agreement will be addressed separately. On November 7, 2013, the Court entered an Amended Order and Judgment, Docket No. 2351, approving the Final Settlement Agreement and Memorandum of Understanding Between the Parties of October 29, 2013 (“Settlement Agreement”), Docket No. 2322. On December 5, 2013, the defendants, Hon. Myrna Comas Pagán, in her official capacity as Secretary of Agriculture of the Commonwealth of Puerto Rico (the “Secretary of Agriculture”), and the Hon. Edmundo Rosaly, in his official capacity as Interim Administrator of ORIL, moved the Court to amend or alter judgment, see Defendants’ Motion to Alter, Amend or Relief from Judgment, Docket No. 2408. Suiza and VTM duly opposed the defendants’ request, see Suiza’s Response to Defendants’ “Motion to Alter, Amend or Relief from Judgment” (Dkt. No. 2408), Docket No. 2418, and Vaquería Tres Monjitas, Inc.’s Reply to Dockets 2408 and 2409, Docket No. 2428. On the same date, that is, December 5, 2013, intervening INDULAC, also moved the Court to alter or amend judgment pursuant to Rule 59(e) [Federal Rules of Civil Procedure 59(e) ], see Docket No. 2409. Suiza filed its Response in Opposition to INDULAC’s Motion to Alter or Amend Judgment (Dkt. No. 2409), Docket No. 2427. VTM filed its opposition under Docket No. 2428. INDULAC filed its reply, INDULAC’s Reply to Opposition to Motion to Alter or Amend Judgment filed by Suiza Dairy, Inc. (Dkt. No. 2427), Docket No. 2437. On December 6, 2013, the defendants filed a Notice of Appeal, Docket No. 2413, USCA Case No. 13-2517, on the grounds that the “Settlement Agreement cannot be construed as a waiver of Eleventh Amendment immunity, [as] the official Defendants did not have the intent or the authority to waive sovereign immunity and that the regulatory accrual as a mechanism for recovery of losses has not been finally determined to violate Puerto Rico’s immunity from suit in federal court or from damage awards.” See Docket No. 2408, page 2. Issue Whether or not the Secretary of Agriculture and/or ORIL and/or the Commonwealth of Puerto Rico through the signature of the Secretary of Justice “waived” the Eleventh Amendment immunity when signing the Settlement Agreement? Analysis To answer defendants’ question, we refer first to the covenants of the Settlement Agreement. Paragraph No. 5 of the Settlement Agreement provides: In consideration and recognition of the vital importance of the Milk Industry in Puerto Rico, upon the execution of this agreement, The Commonwealth of Puerto Rico will take the necessary steps to create a Special Fund to promote the efficiency of the Milk Market in Puerto Rico ... (Emphasis ours). Paragraph No. 14 of the Settlement Agreement provides: In order to protect the Puerto Rican consumers, the Government of Puerto Rico [the Commonwealth of Puerto Rico] by means of any of its instrumentalities [the Department of Agriculture or ORIL], has agreed to contribute the following amounts to the regulatory accrual payout, [of the industrial milk processors, VTM and Suiza] which will be invested with preference in Puerto Rico: • $50 million during calendar year 2014 no later that December 31, 2014; • $15 million during calendar year 2015 no later than December 31, 2015; • $15 million during calendar year 2016 no later than December 31, 2016; • $15 million during calendar year 2017 no later than December 31, 2017. The distribution of the above identified payments between the milk processors will be made pursuant to Exhibit 4, Table l.S.6.2, using the “accumulated regulatory accruals net of collections” estimated as of November 6, 2013. (Emphasis ours). The last unnumbered covenant of the Settlement Agreement, which appears at the bottom of page 5, Docket No. 2322, provides: The terms and conditions of this agreement will be incorporated into the firm, final an unappealable judgment to be issued by the District Court. That Judgment will be equally binding to and enforceable against all signatories of this Agreement and the Government of Puerto Rico. All such parties [the Department of Agriculture, ORIL, the Commonwealth of Puerto Rico] hereby waive any defense they may have to the enforcement of this Agreement. (Emphasis ours). The Eleventh Amendment The Eleventh Amendment of the Constitution of the United States of America provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Moreover, the record is pellucid as to the intention of the Government of Puerto Rico at the time when the Settlement Agreement was finalized, hence, reference is made to the Transcript of the Hearing held on October 29, 2013, before the undersigned, particularly as to the statement made by counsel Gerardo De Jesús-Annoni, in his capacity of Deputy Secretary of Justice in Charge of Litigation of the Puerto Rico Department of Justice, see Docket No. 2329, pages 3-4. Mr. De Jesus: If I may, Your Honor. Gerardo De Jesús Annoni, counsel for the Secretary of Agriculture. Your Honor, after a few hours of sleep during the last week and a lot of hard work, I am happy to inform the Court that this evening the parties have reached an agreement to end this case. I must say that the agreement that has been reached is quite innovative and creative, when adopting most of the methodology agreed by the parties’ experts and suggested or ordered by the Court, all the times, to compensate plaintiffs for lost profits. The moneys that Suiza and Vaquería will end up receiving will be invested in part in plant enhancements and more efficient manufacturing procedures. Moreover, the producers of raw milk will receive a few perks themselves, such as a significant amount of money for the purchase of animal food. Finally, and most importantly, all of this has been done, Your Honor, without having to impose an increase in the price of milk, something that considering the hard economic times we are living in, would have caused great damages to the consumers and to the future of the industry. I commend brother counsel and sisters for all their efforts during the last week, and I thank the Court for its patience and guidance during all these years. Indeed, Your Honor, this case now is cosa finita. Thanks. (Emphasis ours). It is settled that there are several ways where the State may abrogate its Eleventh Amendment immunity: “(1) by a clear declaration that it intends to submit itself to the jurisdiction of a federal court or administrative proceeding; (2) by consent to or participation in a federal program for which waiver of immunity is an express condition; or (3) by affirmative conduct in litigation.” Consejo de Salud de la Comunidad de la Playa de Ponce, Inc., et al. v. González-Feliciano, et al., 695 F.3d 83, 103 (1st Cir.2012), cert. denied, — U.S. -, 134 S.Ct. 54, 187 L.Ed.2d 24 (2013) (list of cases), citing New Hampshire v. Ramsey, 366 F.3d 1,15 (1st Cir.2004). “The concept of waiver by litigation conduct is related to the doctrine of judicial estoppel.” New Hampshire, 366 F.3d at 16. The Court in New Hampshire, 366 F.3d at 17, further held: The state relies on the doctrine that an “Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar” that it may be raised on appeal even if not raised in the trial court. Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The scope of that “belated-raising” doctrine after Lapides v. Bd. of Regents, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) is unclear. Regardless, the state is wrong in arguing that the “belated-raising” doctrine undercuts the waiver doctrine. The doctrine that a state may waive its immunity by its litigation conduct has been alive and well both before and after Edelman. See Lapides, 535 U.S. at 618-24, 122 S.Ct. 1640; Gunter v. Atl. Coast Line R.R. Co., 200 U.S. 273, 284, 26 S.Ct. 252, 50 L.Ed. 477 (1906). The Government lies most of its argument in the case of Frazar, et al. v. Gilbert, 300 F.3d 530 (5th Cir.2002). However, this case was reversed by Frew v. Hawkins, 540 U.S. 431, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004), wherein the Supreme Court granted certiorari and held that a consent decree is enforceable under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Court in Frew, 540 U.S. at 437, 124 S.Ct. 899, further held: Consent decrees have elements of both contracts and judicial decrees. Firefighters v. Cleveland, 478 U.S. 501, 519, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). A consent decree “embodies an agreement of the parties” and is also “an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378, 112 S.Ct. 748,116 L.Ed.2d 867 (1992). Consent decrees entered in federal court must be directed to protecting federal interests. In Firefighters, we observed that a federal consent decree must spring from, and serve to resolve, a dispute within the court’s subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based. 478 U.S. at 525,106 S.Ct. 3063. In the instant case, it is clear that the Government’s intention when signing the Settlement Agreement was to voluntarily transfer from the Commonwealth of Puerto Rico’s coffers, meaning the Government’s General Fund, to end the instant litigation by specific monetary acts, but not limited to: (a) “take the necessary steps to create a Special Fund to promote the efficiency of the Milk Market in Puerto Rico;” as provided by Paragraph No. 5, Docket No. 2322, page 2; and (b) contribute “the following amounts to the regulatory accrual payout,” as provided by Paragraph No. 14 of the Settlement Agreement, Docket No. 2322, page 4. Furthermore, on December 18, 2013, the Governor of Puerto Rico, the Hon. Alejandro Garcia Padilla, in response to the farmers’ request, pending a final study of the industry, agreed to assume the farmers’ losses triggered by the Settlement Agreement entered by the Government and the fresh milk processors, to wit, Suiza Dairy, Inc. and Vaquería Tres Monjitas, Inc. According to the agreement entered into by the Governor and the farmers, the monies to cover the farmers’ losses (past and future) will be disbursed from the newly created Special Fund to promote the efficiency of the Milk Market in Puerto Rico. See the official Notice provided by La Fortaleza on December 18, 2013 issued in the Spanish language, and duly translated into English, as Exhibit No. 1 of this Order. The Court may take judicial notice of official government internet publications. In sum, the Government of Puerto Rico will pay approximately $3 million for the next 60 days to compensate the farmers for their losses triggered by the Settlement Agreement, in addition, to the $58.8 million transferred from the Government’s General Fund to the newly created Special Fund for the Efficiency of the Milk Industry, as agreed by the Government in the Settlement Agreement. See Docket No. 2448-2, Dairy Farmers Achieve Their Objective And Obtain Government Compensation, Fortaleza Agrees To Subsidize Losses Until ORIL Completes Study. See www.elnuevodia.com of December 19, 2013, certified English translation provided by the PRDFA. In addition, the Settlement Agreement set forth a net payment of 80 cents for the raw milk sold by the farmers to the milk processors. See ORIL’s Administrative Order of October 29, 2013, fixing the price of fresh fluid milk effective on November 7, 2013, Docket No. 2322-2, page 3, wherein ORIL, through this Order of October 29, 2013, acquiesced that the farmers will have a net compensation of 80 cents per quart of milk. Furthermore, ORIL’s Order of October 29, 2013, was also personally signed by the Secretary of Justice and the Secretary of Agriculture, amongst the other parties signatories of the Settlement Agreement. See Settlement Agreement, Docket No. 2322-2, pages 3-4. The farmers, notwithstanding allege that there is a loss, and the Settlement Agreement “legally prejudices the PRDFA.” See Docket No. 2384, page 3. Suiza alleges that the loss is around 1.5 cents, but that 1.5 cents was consistent with the 78.5 cents that the farmers received in the year 2013. It is settled that once the Government voluntarily agreed to use public funds to pay the regulatory accrual payout, of the industrial milk processors (Suiza and VTM) it has expressly waived its Eleventh Amendment immunity “by its conduct in litigation.” New Hampshire, 366 F.3d at 15-16. “All such parties hereby waive any defense that they may have to the enforcement of this Agreement.” See Docket No. 2322, page 5. The Court is of the opinion that the above language is “unambiguous” and “evinee[s] a clear desire to submits rights to adjudication by the federal court.” Consejo de Salud de la Comunidad de la Playa de Ponce, Inc., 695 F.3d at 101-105. The agreement reached by the Governor with the farmers further confirmed that the Commonwealth of Puerto Rico waived its Eleventh Amendment immunity, as the Governor agreed to use public funds to compensate the farmers’ losses triggered by the Settlement Agreement. Furthermore, the Government’s intention is clearly stated in the Settlement Agreement as the terms and conditions agreed were to protect the Puerto Rico Milk Industry and the consumers. In the event the Government is now concerned with the potential payment of damages, this matter will be entertained by the Court when and if the situation arises, as the terms and conditions of the Settlement Agreement are purely prospective. The Court emphasizes that the Secretary of Justice himself signed the Settlement Agreement. The Secretary of Justice stands as the first executive representative in the order of succession, in the absence of the Governor and the Secretary of State. See 3 L.P.R.A. § 8(1). Further and most critical, the Secretary of Justice has express authority to represent the Commonwealth of Puerto Rico, “its agencies ...” [the Department of Agriculture] ... “in civil matters,” “before the Courts or other forums in or outside Puerto Rico.” (Emphasis ours). See 3 L.P.R.A. § 292(a) and (a)(1). Finally, the Secretary of Justice is authorized to enter into settlements or transactions involving “agencies ...,” pursuant to 3 L.P.R.A. § 292(b). In the instant case, the Secretary of Justice and the Secretary of Agriculture signed themselves, as opposed to agents signing the Settlement Agreement, and agreed “to waive any defense they may have to the enforcement of the Agreement.” See Docket No. 2322, page 5. Further, “[t]he judgment will be equally binding to and enforceable against all signatories of this Agreement and the Government of Puerto Rico.” Id. The Secretary of Agriculture further signed as the Acting Administrator of ORIL. In Lapides, 535 U.S. at 622, 122 S.Ct. 1640, the Supreme Court specifically authorized a waiver to the Eleventh Amend ment by a State Attorney General, and held: This Court consistently has found a waiver when a State’s attorney general, authorized (as here) to bring a case in federal court, has voluntarily invoked that court’s jurisdiction. See Gardner v. New Jersey, 329 U.S. 565, 574-575 [67 S.Ct. 467, 91 L.Ed. 504] (1947); Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 285-289, 292 [26 S.Ct. 252, 50 L.Ed. 477] (1906); cf. Clark v. Barnard, 108 U.S. 436, 447-448 [2 S.Ct. 878, 27 L.Ed. 780] (1883) (not inquiring into attorney general’s authority). See also Arecibo Community Health Care, Inc. v. Commonwealth of Puerto Rico, 270 F.3d 17, 24 (1st Cir.2001) (“A state official (Secretary of Justice) may only waive the State’s sovereign immunity during the course of litigation when specifically authorized to do so by the state’s constitution, statutes or decisions”). The Secretary of Justice enjoys unquestioned authority to sign the Settlement Agreement in the instant case. See collection of cases cited infra. The Settlement Agreement nonappealable provision Lastly, the Court also stresses that the signatories of the Settlement Agreement specifically agreed that “[t]he terms and conditions of this settlement will be incorporated into the firm, final and unappealable judgment to be issued by the District Court.” See Docket No. 2322, page 5. The Government is judicially es-topped from now appealing the terms and conditions of the Settlement Agreement except as to the Eleventh Amendment waiver as approved by the Amended Order and Judgment of November 7, 2013, Docket No. 2351, by alleging that the Government never waived its Eleventh Amendment immunity. The instant Opinion and Order overrides the prior Amended Order and Judgment, Docket No. 2351, only as to the waiver of the Eleventh Amendment. Conclusion In view of the foregoing, the Defendants’ Motion to Alter, Amend or Relief from Judgment, Docket No. 2408, and Indulac’s motion to alter or amend judgment, Docket No. 2409, are denied. The Clerk shall notify a copy of this Opinion and Order to the Appeals’ Clerk. IT IS SO ORDERED.

5740009-16099

OPINION EDWARD WEINFELD, District Judge. Following the filing by petitioner, pro se, for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, the application was referred by this Court to Magistrate Leonard Bernikow for report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). The petitioner was convicted upon a jury trial in the Supreme Court, Bronx County, of the criminal sale of a controlled substance in the third degree, in violation of New York Penal Law (“NYPL”) § 220.-39(1). He was sentenced as a second felony offender to an indeterminate term of imprisonment of from four and one half to nine years. The judgment of conviction was affirmed without opinion by the Appellate Division, First Department. Application for leave to appeal to the Court of Appeals was denied. Under a so-called “agency defense” doctrine, the New York State Court of Appeals has held that “ ‘[o]ne who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics.’ ” The petitioner’s claim of violation of his federal constitutional rights centers about this doctrine. He contends (1) that his conviction for the sale of a controlled substance deprived him of due process because the State failed to disprove beyond a reasonable doubt that he acted only as a buyer’s agent; and (2) that the Trial Court’s instructions to the jury on his agency defense and the operative standard of proof were inadequate and deprived him of a fair trial. The Magistrate found that petitioner had presented and exhausted his claims before the State Court and, after an extensive review of the record, recommended dismissal of plaintiff’s claims upon the merits, and also recommended that a certificate of probable cause issue with respect to petitioner’s claim that a supplemental jury instruction that defined the statutory term “seller” without referring to petitioner’s agency defense constituted constitutional error. The petitioner filed exceptions to the recommendation of dismissal of his claims upon the merits, and respondents filed exceptions to the recommendation that a certificate of probable cause issue pursuant to Fed.R.App.P. 22(b). The Court, in order to make its de novo determination of the recommendations of the Magistrate, to which objections have been made, has read the trial transcript and the submissions of the parties. The Court has also carefully considered the extensive report of the Magistrate, which contains factual findings and a detailed discussion of the applicable law. Upon a full consideration of all matters, the Court accepts the recommendation of the Magistrate that petitioner’s application be dismissed upon the merits, but does not accept the recommendation that a certificate of probable cause issue. Petitioner’s first claim is that his conviction for the sale of a controlled substance deprived him of due process because the State failed to disprove beyond a reasonable doubt that he acted only as a buyer’s agent. The entire trial, from opening statements, testimony of witnesses, summations and instructions centered about the agency defense. The evidence in support of the State’s claim came from an undercover officer (“the undercover” or “the agent”), who conducted the transaction with petitioner, and from petitioner, who testified on his own behalf. In broad outline, the undercover testified that he saw petitioner for the first time shortly before October 15, 1982, when petitioner was speaking with one Dennis Martin (or “Dennis”), from whom the undercover had previously purchased narcotics. Subsequently, on October 15, 1982, while the undercover was pressing the bell of Dennis Martin’s apartment, petitioner came out from the entrance, introduced himself by his first name, stated to the undercover that he knew why and for what the undercover was there, and that he could give the undercover a better deal than Dennis Martin; they discussed drugs and petitioner wrote his name and telephone number on an envelope, which was received in evidence. Subsequently, on November 4, 1982, the undercover telephoned petitioner, and told petitioner he wás interested in purchasing cocaine, and petitioner asked him to come right over. The undercover received from his office $400 pre-recorded buy money. When the undercover arrived at petitioner’s apartment, they discussed the purchase by the undercover of one-eighth of an ounce of cocaine from petitioner at an agreed price of $300. Petitioner then made several telephone calls, asked for the $300, which the undercover gave him, and instructed the undercover to return to the apartment in approximately one hour. The undercover asked petitioner why he didn’t have the stuff on hand and petitioner responded he didn’t work that way; that from experience the best way to do business was not to keep anything in his apartment. The undercover left the apartment and, as directed by petitioner, returned about one hour later and was granted admittance by petitioner’s daughter, who told him to wait; that her father had called and said he would be there shortly; petitioner arrived about ten minutes later. Both went to petitioner’s bedroom, where he removed from his coat a clear plastic bag containing some cocaine. Petitioner then took from under his bed “a coke scale” and measured an eighth of an ounce, and after the weighing, rewrapped the substance and handed it to the undercover. The undercover then departed and petitioner was arrested one month later. Petitioner testified that he first saw the undercover a short time before October 15, 1982, while he was engaged in conversation with his good friend, Dennis Martin, with whom he had been friends over eight years; that the undercover interrupted their conversation and asked to speak privately with Dennis, which they did, but petitioner had no conversation with the undercover on that day. Petitioner acknowledged that he had previously been convicted of a narcotics offense; that he had a few jobs, as gypsy and medallion cab driver, and also worked in the building industry; and, that the first time he ever saw the undercover was on the occasion above described. Several weeks later, as petitioner was leaving an apartment building after having tried to visit Dennis, who was not at home, petitioner ran into the undercover in the vestibule. Petitioner did not recognize him, whereupon the undercover reminded him they had seen one another on the earlier occasion; the undercover then asked petitioner isn’t “he (Dennis) a good friend of yours?”, to which petitioner responded they had been friends for a long time, whereupon the undercover told him that Dennis had been involved in a large cocaine transaction with some friends who were not satisfied with the deal and had lost large profits, and that Dennis was in serious trouble and faced risk of serious injury; then the undercover asked could he discuss the matter further with petitioner, requested petitioner’s telephone number, and was given his home telephone number. Before leaving, the undercover again referred to the fact that Dennis was in serious trouble. About a week or two later, the undercover telephoned petitioner at his home and asked him whether he wanted to do something to help his friend Dennis, who was in a jam because the quality he sold to the undercover’s friends was not good and they could not realize the amount of money they were supposed to make. During the telephone conversation, the undercover asked if petitioner could he get him .a “half,” and petitioner said to the undercover whatever he was talking about could wait until he got to petitioner’s home. Petitioner volunteered, at trial, that, although he had not seen Dennis from about October 15 to the time of the telephone conversation on November 4, Dennis had been beaten and assaulted, and that petitioner thought the undercover and his friends were involved in the assault; that they were still after Dennis and he “felt fearful for his [Dennis’] life.” Petitioner also testified that, soon thereafter, the undercover arrived at his home and asked him could he get an eighth of cocaine and petitioner said he would try; that he made six or seven phone calls, following which he told the undercover he could get it for $300 if the undercover wanted to pay that sum; that the undercover agreed and gave him $300; and that the undercover told petitioner they would meet back at the apartment in about an hour. Petitioner then left his apartment, met with the supplier, gave him the $300 petitioner had received from the agent, and received from the supplier what petitioner believed was an eighth of an ounce of cocaine. He then telephoned his home and asked his daughter “did my friend come back” and she informed him “he [the undercover] was there.” Upon his return to the apartment, he handed the package to the undercover, who seemed unsatisfied, whereupon petitioner took a scale his son used in connection with his chemistry studies, weighed the cocaine in the presence of the undercover, who told him to wrap it up, which he did, and the undercover said he was satisfied, and petitioner said he did it to help out his friend, and the agent responded he would have no problem, and that he would be in touch with petitioner again because he might want him to do something else. Petitioner replied he would not be interested in further dealings; that he did what he did only “to help my friend”, and felt it might “save Dennis’s life.” Thereupon the undercover left the apartment with the cocaine. Essentially, upon the substance of the foregoing testimony, petitioner contended that he was not a seller but had made the purchase on behalf of the undercover solely to protect his friend Dennis from threatened injury. Petitioner further testified that about a week later the undercover called upon him again and sought to have him engage in another narcotics transaction, but he declined. Obviously, petitioner’s version and that of the undercover were in sharp conflict. Petitioner’s first claim to void the judgment of conviction is that he was deprived of due process of law under the Fourteenth Amendment because the prosecution had failed to carry its burden of proof beyond a reasonable doubt that petitioner had not acted solely as the agent of the buyer, the undercover. To advance that contention in the light of the conflicting evidence on the subject is sheer rhetoric. The versions of petitioner and the undercover were irreconcilable and presented an issue of credibility to be resolved by the jury. To one who has read the trial record, petitioner’s version appears incredible — indeed, petitioner himself, as he was about to relate events, stated to the jury his version “might sound a little farfetched.” However one may view his testimony, the fact is that it differed from that of the undercover, and the jury, by its verdict, accepted that of the latter. The issue of agency was dominant from the very start of the trial to its conclusion. The Court extensively instructed the jury on the subject. Significantly, no exception was taken to the charge. Despite the failure to except, petitioner attacks the instructions to the jury. The charge was entirely correct under New York law. Moreover, any challenge is barred on procedural grounds absent a showing of cause and prejudice, and none has been presented. In sum, there was substantial evidence upon which the jury, as a rational fact finder could determine that the State had established each essential element of the crime charged beyond a reasonable doubt, including its burden of proof on the agency issue. The petitioner’s next claim of constitutional error is based upon the Trial Judge’s instruction in response to the jury’s request for the “definition of seller.” The judge indicated to counsel that, in response, she intended to read the statutory definition as set in New York State’s Penal Law. Defense counsel requested that the Court, in addition, further instruct the jury that to find the defendant guilty of being a seller, the State would have to prove beyond a reasonable doubt the elements that make a seller under the law. The Court declined, pointing out that the jury’s request was for the definition of “seller.” It is not uncommon for lawyers, when jurors make requests for further instructions, to urge matters in addition that emphasize their positions but go beyond the jury’s specific request. The defense theory and the agency concept had been fully set forth in the Court’s charge to the jury, and there was no need to elaborate beyond the specific request of the jury and to reiterate the positions of either the defense or the prosecution. The claim that the refusal to supplement that charge constituted federal constitutional error because of the refusal to amplify the additional instruction is without substance. However, the Magistrate, on this issue, was of the view that since the Court in its main charge had not given the statutory definition of “seller,” that to limit the supplemental instruction to the statutory definition, without the addition requested by counsel, may have given the jury a means of deciding the main issue — that is the agency defense — by the very language of the statute. Thus the Magistrate, in his report, states: we cannot say beyond a reasonable doubt that the erroneous instruction did not lead the jury to ignore its doubts about the evidence, and replace those doubts with the easy formula the statutory definition provided; if petitioner had performed any of the acts described in the definition, as he conceded he did, the evidence must show he was a seller and not a buyer’s agent. By this reckoning, the State was relieved by that instruction of the burden of disproving petitioner’s agency defense beyond a reasonable doubt, and as such would represent constitutional error. Despite this reference to “constitutional error,” the Magistrate continued that “absent some authority for holding that a statutory recitation can serve the same impermissible ends as a Sandstrom presumption charge we are reluctant to hold this instruction amounted to constitutional error,” and accordingly rejected petitioner’s claim. However, the Magistrate was of the view that the issue was close and recommended that petitioner be issued a writ of probable cause. This Court does not accept this recommendation based upon the Magistrate’s view that the statutory definition may have led the jury “to ignore its doubts about the evidence, and to replace those doubts with the easy formula the statutory definition provided.” There is nothing in the record that affords any basis for a reference to the “jury’s doubts” about the evidence. The request for a definition of seller in no respect reflects any doubt by any juror as to the factual matters tendered on the disputed issue of whether petitioner was a seller or acting on behalf of the undercover. The case was riven with the agency issue from the very opening to the conclusion of the trial. To suggest that under such circumstances the jurors would disregard the evidence of each side because only the statutory definition was given to the jury without the requested supplemental instruction is unrealistic and without support. Moreover, even assuming that the omission may be deemed constitutional error, this Court’s reading and study of the record justifies a finding that beyond a reasonable doubt it was harmless, and there is no reason to issue a certificate of probable cause. Accordingly, the petition is dismissed upon the merits and a certificate of probable cause is denied. So ordered. . People v. Dixon, 65 N.Y.2d 979, 494 N.Y.S.2d 1047, 484 N.E.2d 677 (1985). . People v. Lam Lek Chong, 45 N.Y.2d 64, 73, 407 N.Y.S.2d 674, 679, 379 N.E.2d 200 (citations omitted), cert. denied, 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331 (1978); see also People v. Roche, 45 N.Y.2d 78, 81, 407 N.Y.S.2d 682, 684, 379 N.E.2d 208, cert. denied, 439 U.S. 958, 99 S.Ct. 359, 58 L.Ed.2d 350 (1978); People v. Sierra, 45 N.Y.2d 56, 60, 407 N.Y.S.2d 669, 672, 379 N.E.2d 196 (1978).

6447163-11051

MANKIN, Judge: Albert R. Olson appeals the November 27, 1990, Board of Veterans’ Appeals (BVA or Board) decision which denied entitlement to an increased evaluation for undifferentiated schizophrenic reaction, currently evaluated as 70% disabling, and determined that new and material evidence had not been submitted to reopen his claim for a total evaluation (100%) based on individual unemployability, retroactive to July 1981. The Secretary of Veterans Affairs filed a motion for remand for the Board to consider whether appellant is currently entitled to a total evaluation based on individual un-employability. Appellant opposes this motion and contends that the decision which terminated his individual unemployability benefits contained clear and unmistakable error (CUE). We agree and are compelled to reverse the November 1990 BVA decision, as to this issue, and remand the matter for the Board to reinstate appellant’s former total rating based on individual un-employability (IU), with an effective date of July 2, 1981. We affirm that part of the decision which denied an increased rating for schizophrenia. I. BACKGROUND FACTS Appellant served on active duty from August 1942 to November 1945. In July 1961, the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) awarded appellant a 100% schedular rating for schizophrenia. This was reduced to 70% in July 1962. On November 21, 1966, the Vocational Rehabilitation Board (VRB) determined vocational rehabilitation to be indefinitely medically infeasible for appellant. This determination was based on a report from a counseling psychologist, Dr. Peterson, who observed appellant from 1962 to 1966 at the VA Mental Hygiene Clinic and Day Center. On December 8, 1966, the RO awarded appellant a total rating based on IU, effective from August 6, 1966. From February 9,1979, to March 2,1979, appellant was hospitalized for schizophrenia, schizo-affective type, manifested by depression. A rating decision continued his 70% rating for schizophrenia. On November 28, 1980, the VA conducted a medical examination of appellant, which included a social and industrial interview, and a psychiatric evaluation. Dr. Whitacre found that appellant’s diagnosis of schizophrenia had remained essentially unchanged over a number of years; that he had been “a psychotic individual for a long time.” On April 6, 1981, the RO issued a decision terminating appellant’s IU benefits because it found that his disorder did not prevent all forms of gainful employment. On July 8, 1982, the BVA affirmed the RO decision. The veteran disagreed with the BVA decision and alleged, inter alia, that the decision contained CUE because the Board failed to consider a VA VRB report. The Board construed Mr. Olson’s claim to be a motion for reconsideration and denied it. In March 1989, appellant sought to reopen his claim for an increased rating. This was denied by a March 30, 1989, rating decision. He filed a Notice of Disagreement and added a claim for IU benefits. He also submitted a Substantive Appeal (VA Form 1-9) in which he contended that the VA’s failure to apply 38 C.F.R. § 3.343(c) in the prior decision which terminated his benefits was clear and unmistakable error. Appellant presented a report of a medical examination from October 6, 1989, which revealed that he suffered recurring bad dreams, had a feeling he was being spied on, and believed his mind was controlled by an evil force. Other medical records show appellant to be oriented, alert and cooperative, but socially withdrawn. The November 14, 1989, rating decision continued the 70% rating, denied retroactive IU benefits and denied a current IU rating. The BVA, in a November 27, 1990, decision found that new and material evidence has not been presented to establish IU retroactive to July 1981, and denied an increased rating for schizophrenia, currently rated as 70% disabling. Albert R. Olson, BVA 90-40288, at 7 (Nov. 27, 1990). II. ANALYSIS A. Schedular Rating for Schizophrenia The Court must affirm factual findings of the BVA unless they are found to be “clearly erroneous.” 38 U.S.C.A. § 7261(a)(4) (West 1991); see Lovelace v. Derwinski, 1 Vet.App. 73 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). In determining whether a finding is clearly erroneous, “this Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible’ basis in the record for the factual determinations of the BVA ... we cannot overturn them.” Gilbert, 1 Vet.App. at 53. The rating criteria for schizophrenia, undifferentiated type, appears at 38 C.F.R. § 4.132, Diagnostic Code (DC) 9204 (1992). A 100% schedular rating will be awarded where there are “[ajctive psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial adaptability.” A 70% rating is appropriate for a veteran “[wjith lesser symptomatology such as to produce severe impairment of social and industrial adaptability.” In denying an increased rating for schizophrenia, the BVA relied upon a recent VA examination which revealed that Mr. Olson was oriented, alert, and cooperative. The examination report indicated that appellant's affect was found to be slightly inappropriate, that his speech was normal in mechanics and content, but that associations were somewhat sparse and tended to be a little circumstantial. He had a history of paranoid thinking, and complaints of ideas of reference were noted, but there was no evidence of active psychotic manifestations. Based on the evidence in the record, the Court holds that a plausible basis exists for the BVA determination on this issue. B. Clear and Unmistakable Error In his Substantive Appeal, appellant alleged that the July 1982 BVA decision contained CUE because it improperly terminated appellant’s IU benefits when it failed to consider 38 C.F.R. § 3.343(c). He contended that his benefits should be reinstated as of July 1981, the effective date of the termination. The RO was the actual body to terminate appellant’s IU benefits with this effective date. The Board, in its July 1982 decision, determined that appellant was not entitled to IU, thus affirming the RO decision below it. Pursuant to 38 C.F.R. § 20.-1104 (1992), When a determination of the agency of original jurisdiction [an RO] is affirmed by the [BVA], such determination is subsumed by the final appellate decision. As a result, the RO decision became part and parcel of the final July 1982 BVA decision. In the BVA decision on appeal, the Board acknowledged Mr. Olson’s claim, stating: The veteran and his representative apparently contend that the veteran should be entitled to a total evaluation based on individual unemployability due to his service-connected schizophrenia retroactive to July 1981 because the decisions which resulted in this reduction did not consider his vocational rehabilitation file, or consider or cite the provisions of 38 C.F.R. [§§] 3.327 and 3.343. They maintain that his claim for a total evaluation was prejudiced by the failure to consider that evidence and those regulations. Olson, BVA 90-40288, at 2. In its evaluation of appellant’s claim, however, the Board incorrectly phrased the issue as “whether the additional evidence associated with the claims file subsequent to the Board’s 1982 decision creates a new factual basis warranting a favorable determination.” Olson, BVA 90-40288, at 5. The BVA further stated that [w]hile the veteran feels that his earlier claim was prejudice [sic] by the failure to consider his vocational rehabilitation file or the provisions of 38 C.F.R. [§§] 3.327 and 3.343 at the time of the July 1982 decision of the Board, this contention does not provide, or suggest, a new factual basis warranting a total evaluation retroactive to July 1981. Id. Although the Board mischaracterized Mr. Olson’s claim as a reopened one, it essentially adjudicated the actual claim made by appellant — a claim of CUE in the prior July 1982 BVA decision. Pursuant to 38 C.F.R. § 3.105(e) (1992), “Previous determinations which are final and binding ... will be accepted as correct in the absence of clear and unmistakable error.” A CUE is “undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.” Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc); Porter v. Brown, 5 Vet.App. 233, 235 (1993). Where evidence establishes such error, the prior decision must be revised. Russell, 3 Vet.App. at 314. In order for there to be a valid CUE claim, there must have been an error in the prior adjudication of the claim. Porter, 5 Vet.App. at 235; Archer v. Principi, 3 Vet.App. 433, 437 (1992); Russell, 3 Vet.App. at 313. Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Moray v. Brown, 5 Vet.App. 211, 212 (1993); Russell, 3 Vet.App. at 313. In this case, Mr. Olson’s valid CUE claim centers around the failure to apply regulations extant at the time of the July 1982 BVA decision. Although he also raised the issue of CUE regarding the BVA’s failure to consider his vocational rehabilitation file, we note that he previously raised this claim before the BVA in 1982 in his motion for reconsideration. A claim for CUE cannot be endlessly reviewed. Once there is a final decision on a particular claim of CUE, that particular claim of CUE may not be raised again; it is res judicata. Schmidt v. Brown, 5 Vet.App. 27, 29 (1993); Russell, 3 Vet.App. at 315. Therefore, we restrict our review to the CUE claim involving the failure to apply the regulations extant at the time of the decision terminating IU benefits. The Court cannot directly review the July 1982 BVA decision; our authority reaches only to review of the November 1990 BVA decision on appeal. Thus, we are limited to deciding whether the November 1990 BVA decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Russell, 3 Vet.App. at 315; see 38 U.S.C.A. § 7261(a)(3)(A) (West 1991). It is clear that the requirements for decrease of a rating for disabilities which have continued for a long time at the same level are more stringent than those for an initial award or an increase in ratings. Collier v. Derwinski, 2 Vet.App. 247, 249 (1992); 38 C.F.R. §§ 3.343, 3.344 (1992). See Tucker v. Derwinski, 2 Vet.App. 201, 203-04 (1992). The standard for reduction when a 100% rating is based on individual unemployability is set out in 38 C.F.R. § 3.343(c) which states, in pertinent part: In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of [38 C.F.R.] § 3.105(e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. (Emphasis added.)

329816-13316

McNAMEE, District Judge. This is an action for damages arising from personal injuries sustained by plaintiff as a result of an explosion of a shipment of munitions at South Amboy, New Jersey. It appears from the Complaint that the shipment originated in Ohio and was destined for delivery to the Government of Pakistan. Although plaintiff is a resident of New Jersey and files his Complaint against eight corporate defendants, this is not a diversity of citizenship case. The jurisdiction of this court derives from the claims that the defendants “violated the provisions of the various Acts of Congress relating to the transportation of explosives and kindred products in interstate commerce” and that the amount involved exceeds $3,000. The defendants are: Kilgore Manufacturing Company Pennsylvania Railroad Company Baltimore & Ohio Railroad Company Reading Corporation Central Railroad of New Jersey Hercules Powder Company Commercial Credit Company National Carloading Corporation. Only one of the defendants, Kilgore Manufacturing Company, is an Ohio corporation. 64 actions of a similar nature arising out of personal injuries or deaths caused by the same explosion in New' Jersey are pending in this court. In all such actions, as here, plaintiffs are non-residents of the State of Ohio. Presumably these actions were filed here upon the premise that this court has jurisdiction of all parties defendant, thus enabling plaintiff to litigate his claims of joint and several liability against all defendants in one action. Service of summons upon the Commercial Credit Company has been quashed. Two1 of the defendants, Central Railroad of New Jersey and the Reading Corporation, have filed motions to dismiss the action as to them on the grounds (1) that such defendants are foreign corporations and not doing business in Ohio, and (2) that the action “as to said defendants” imposes an unreasonable burden on interstate commerce. From affidavits filed by defendants and depositions taken by plaintiff it appears that the Reading Corporation is a Pennsylvania corporation engaged in the business of transporting persons and freight as a common carrier over railroad lines located outside of the State of Ohio. While it has no railroad tracks in Ohio, from time to time other railroad companies with tracks in this State haul cars of the Reading Corporation over their lines in Ohio. For twenty-six years the Reading Corporation has maintained an office in the Park Building in Cleveland, Ohio. Presently, in addition to the General Agent, W. J. Brennan, there are three employees of the company working thrbugh this office. The office is maintained for the purpose of soliciting freight and “rendering service as might he required in connection with the movement of traffic. — freight traffic.” This includes servicing of complaints made in connection with delays. The office' of the company is listed in the building directory in the Park Building and in the telephone directory. Neither the General Agent nor any one else employed at the local office sells tickets, issues bills of lading, or enters into contracts on behalf of the defendant. All claims for lost or damaged freight are handled in Philadelphia. The company does furnish an automobile for the General Agent’s use. Title to the car is in the company and all expense of its maintenance and operation is paid by the company either directly or by reimbursing the local agent for payments made by him. The volume of business done by the company in traffic originating in this area amounts to about 20,000 cars a year. Central Railroad of New Jersey is a New Jersey corporation and has no tracks or other property in Ohio. Excepting that it furnishes no automobile for the use of its General Agent, the position of this defendant is in all other respects substantially the same as that of the Reading Corporation. Central Railroad of New Jersey maintains a separate office in the Park Building. In addition to the General Agent, F. F. Siegel, it also- has three employees working in the local office. Siegel described his duties as “primarily to solicit freight and offer any service needed by the public.” He testified also that the servicing of complaints consisted primarily in “tracing shipments.” The volume of business done by this defendant in traffic originating in this area was also about 20,000 cars a year. The issue presented by the first ground of the motion is: Were the defendants doing business, in a jurisdictional sense, in the Northern District of Ohio? On the authority of Green v. Chicago, B. & Q. R. Co., 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916, the defendants assert that this question must be answered in the negative. The Green case is the leading authority for the proposition that liability for service of' process is not incurred by a foreign corporation whose business in the district of the forum consists merely of the solicitation of business. While the jurisdictional-facts of this case are analogous to those in the Green case, later decisions of the-Supreme Court cast serious doubt upon the binding precedential effect of that case. Within four years after the Green case was decided, the Supreme Court, in St. Louis S. W. Ry. v. Alexander, 227 U.S. 218, 33 S.Ct. 245, 248, 57 L.Ed. 486, held that correspondence between plaintiff and the New York freight agent of the foreign railroad in respect of claims was “the transaction of business” in such a manner as to bring the corporation within the Southern District of New York, although it appears from the statement of facts in that case that “all claims were handled by the general offices at either St. Louis or Tyler, Texas”. The marks' of similarity between the jurisdictional facts of St. Louis S. W. Ry. v. Alexander and the instant case are no less striking than the analogous facts of the Green case. While the record here discloses no evidence of correspondence with the local agents concerning claims, it does show that the local agents of defendants, “service complaints” and render “service as might be required in connection with the movement of traffic — freight traffic.” If there be any substantial distinction between “correspondence concerning claims” and “servicing" complaints” such as to warrant sustaining jurisdiction in the former situation and to compel its denial in the latter, I am unable to perceive it. Within seven years after Green v. Chicago, B. & Q., the Supreme Court, in International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S.Ct. 944, 946, 58 L.Ed. 1479, found that under the facts “there was something more than mere solicitation” and held service on the foreign corporation to-be good. Referring to Green v. Chicago, B. & Q., the court termed it “an extreme case.” Defendants also rely upon Philadelphia & Reading R. Co. v. McKibbin, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed 710. That case is not in point on its facts. The defendant had no office or employees in the foreign jurisdiction. The case, however,. does refer with approval to Green v. Chicago, B. & Q. In Hutchinson v. Chase & Gilbert, 2 Cir., 45 F.2d 139, 141, Judge Learned Hand said: “Possibly the maintenance of a regular agency for the solicitation of business will serve without more. The answer made in Green v. Chicago, B. & Q. R. Co., 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916, and People’s Tobacco Co. v. Amer. Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann.Cas.1918C, 537, perhaps becomes somewhat doubtful in the light of International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479, and, if it still remains true, it readily yields to slight additions.” In that case Judge Hand also discussed at length the theory of personal jurisdiction in actions in personam against foreign corporations. His conclusion was: “There must be some continuous dealings in the state of the forum; enough to demand a trial away from its home. “This last appears to us to be really the controlling consideration, expressed shortly by the word ‘presence,’ but involving an estimate of the inconveniences which would result from requiring it to defend, where it has been sued. We are to inquire whether the extent and continuity of what it has done in the state in question makes-it reasonable to bring it before one of its courts.” In Frene v. Louisville Cement Co., 77 U.S.App.D.C. 129, 134 F.2d 511, 516, 146 A.L.R. 926, Mr. Justice Rutledge (then Associate Justice of the Court of Appeals for the District of Columbia) remarked: “No businessman would regard ‘selling,’ the ‘taking of orders,’ ‘solicitation’ as not ‘doing business.’ The merchant or manufacturer considers these things the heart of business.” And again, “It would seem, therefore, that the ‘mere solicitation’ rule should be abandoned when the soliciting activity is a regular, continuous and sustained course of business, as it is in this case. It constitutes, in the practical sense, both ‘doing business’ and ‘transacting business,’ and should do so in the legal sense. Although the rule has not been clearly and expressly repudiated by the Supreme Court, its integrity has been much impaired by the decisions which sustain jurisdiction when very little more than ‘mere solicitation’ is done.” 134 F.2d at page 516-517. That the critical observations of Judge Hand and Mr. Justice Rutledge met with the approval of the Supreme Court is evident from the opinion written by Chief Justice Stone in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 158, 90 L.Ed. 95. The discussion of the jurisdictional question in that case leaves no room for doubt as to the court’s concurrence in the views of the distinguished jurists- mentioned above. The Supreme Court adopts Judge Hand’s views that the term “presence” when used in relation to corporate activities in a foreign jurisdiction is merely symbolic of those activities within such jurisdiction “which courts will deem to be sufficient to satisfy the demands of due process”, and that “An ‘estimate of the inconveniences’ which would result to the corporation from a trial away from its ‘home’ or principal place of business is relevant in this connection. Hutchinson v. Chase & Gilbert, supra, 45 F.2d at page 141.” In International Shoe Co. v. Washington, Chief Justice Stone reviews the conflict of opinions in the cases on the question of the degree of activity necessary to render a corporation amenable to suit in a foreign district. His discussion on this point is summarized as follows: “It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested,-whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. St. Louis S. W. R. Co. v. Alexander, supra, 227 U.S. at page 228, 33 S.Ct. [245] 248, 57 L.Ed. 486, Ann.Cas.1915B, 77; International Harvester Co. v. Kentucky, supra, 234 U.S. at page 587, 34 S.Ct. [944] 946, 58 L.Ed. 1479. Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.” 326 U.S. at page 319, 66 S.Ct. at page 159. It seems reasonably to be inferred from the above-quoted language and the specific references therein to St. Louis S. W. R. v. Alexander and International Harvester Co. v. Kentucky, wherein jurisdiction was upheld upon the rule of “solicitation plus”, that this rule is no longer to be considered as decisive in determining whether a foreign corporation is doing business in a jurisdictional sense. The new criteria adopted by the Supreme Court compels a determination of the broader question whether corporate activity in a foreign jurisdiction is such as to make it reasonable that the corporation be required to defend “the particular suit which is brought there.” While the facts in International Shoe Co. v. Washington did not involve solicitation of business by a railroad corporation in a foreign jurisdiction, the probable attitude of the Supreme Court on that question is forecast in the dissenting opinion of four members of the court in Georgia v. Pennsylvania R.R. Co., 324 U.S. 439, 65 S.Ct. 716, 732, 89 L.Ed. 1051. In the last cited case the State of Georgia filed an original action in the Supreme Court under the Clayton Act, 15 U.S.C.A. § 12 et seq., against a number of railroads. It was suggested that the court ought not to entertain the suit as an original action because it could be more conveniently and appropriately litigated in a district court having jurisdiction of all the defendants. The majority of the court took the view that there was nothing in the record to show that all the defendants could be “found” or were “transacting business” within a judicial district in Georgia or elsewhere. A minority, consisting of Chief Justice Stone and Justices Jackson, Frankfurter and Roberts, were of the opinion that the burden was on the plaintiff to show “that it will be unable to reach all of the defendants in a convenient district.” The minority opinion then noted that—

1514809-13988

OPINION MUIR, District Judge. In this action brought under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), Marland Papillon contends that on November 8, 1974 he was “unjustly discharged” by his employer, Hughes Printing Company (the “Company”) and that the Stroudsburg Printing Pressmen and Assistants’ Union No. 350 (the “Union”), of which he is a member, breached its duty of fair representation to him by arbitrarily, capriciously and in bad faith refusing to process his grievance arising from the “discharge”. Papillon also alleges that the Company and the Union were “wanton and willful” and conspired to deprive him of his rights under the collective bargaining agreement. The Union and the Company have both filed motions for summary judgment pursuant to F.R.Civ.P. 56. Based on the pleadings, depositions, and exhibits presently on file, the Court is of the view that the following are undisputed: The printing plant, located in East Stroudsburg, Pennsylvania, where Papillon worked, was originally owned by the Hughes family in the early 1930’s. In 1934, the Union won bargaining rights for Journeymen Pressmen and Assistant Pressmen. Under the seniority system which was established for the two categories, a particular Pressman’s seniority was “plant-wide”. Thus, although an individual was assigned to only one particular press within the plant, he was entitled to “bump” a man of lower seniority who worked on another press rather than be laid off if his own letter press was shut down. This movement from press to press was possible because all letter presses within the plant were basically the same. In 1960, Hughes sold the East Stroudsburg plant to the Printing Corporation of America. This effected no change in the seniority rights of Journeymen Pressmen and Assistants who continued to work in the plant. In 1967, the Printing Corporation of America sold the East Stroudsburg facility to the American Can Company. Soon after its purchase of the plant, American Can discovered that the limited output capacity of its letter press equipment in the Stroudsburg plant could not compete with the offset printing presses of other companies which printed the same material. Consequently, after a short-lived attempt to upgrade the East Stroudsburg plant, American Can decided to close it down and to lay off permanently the 550 individuals employed there. Before this decision could be implemented, Mr. Russell Hughes, of the family which originally owned the plant in the 1930’s and a large stockholder in the American Can Company, was approached by parties having an interest in averting the closing. Despite being a retired octogenarian, Hughes undertook to investigate the possibility of re-purchasing the plant in order to prevent the massive layoff which was imminent. Of primary concern to Hughes was the degree of cooperation which he could obtain from the Union if he undertook this venture and made the investment necessary to convert the plant from letter press to offset. Hughes required a definite commitment from the Union in three areas. Only one of those is pertinent to this case. The offset printing process is comprised of three distinct phases — the Web press, the Sheet-fed press, and Plateburning. Several years of training are required in order for an employee to reach a satisfactory level of competency on only one of these phases. Competency in one phase does not qualify an individual to work on any of the other two. Training at the East Stroudsburg plant was to take place “on the job”. Under the plan envisioned by Hughes, employees were to continue to receive their former letter press wages until they attained a level of competency which would entitle them to the higher rates of offset pressmen. The training of an individual in a particular phase of the offset process is expensive. In addition to direct training expenditures, the company bears the costs of each trainee’s inferior work product and waste. If the seniority system which obtained in the plant up until the time of the contemplated purchase by Hughes were to have remained in effect, an individual working in, for example, the Web press phase who was about to be laid off could “bump” a Plateburner who had less seniority. The former Web pressman would then have to be completely retrained in Plateburning. Because he believed that the financial consequences of that situation were too severe for the Company, Hughes demanded and the Union acceded to the inclusion of a “one-phase” training restriction in the collective bargaining agreement. Such a provision was ratified by the Union on July 11, 1970 by a 70 to 6 vote of the general membership. Lists were prepared of those individuals who wished to be trained in each of the three phases. Until an individual was assigned to a specific offset department, he continued to work on the letter presses which were still operating but were being gradually phased out. When an individual was assigned to a particular phase, he took his respective place on the seniority list within that classification. The operation of the “one-phase” training restriction came into effect whenever a layoff occurred. If the staff in a certain department was to be reduced, the individual with the least seniority in that classification, rather than the individual with the least plant-wide seniority, was laid off. Consequently, it was possible for an employee on the Web press to continue to work while an individual with more years experience was laid off from Plateburning. This is what occurred, although not for the first time, to Marland Papillon on November 8, 1974. Papillon began working at the East Stroudsburg plant on December 1, 1952 as an Assistant Pressman and has been a member of the Union since that time. By reason of a subsequent promotion his priority seniority date as a Journeyman Pressman became October 19, 1962. Because of a disagreement with the Union, which, however, was not translated into overt animosity between himself and Union officials, Papillon attended no meetings from 1968 until sometime shortly after his layoff in 1974. In March, 1971, after the purchase of the plant by Hughes and the creation of the one-phase training restriction, Papillon indicated his desire to be trained on the Web press. Soon thereafter, he was offered the opportunity to train in the Plateburning department and accepted. His name was deleted from the Web list. After he began his training program in the Plateburning department, additional pressmen with both more and less seniority than he began to train in that phase of the offset process. Also, less senior individuals were assigned to the Web and sheet-fed presses. Despite the fact that he was aware that employees with less plant-wide seniority than he were being assigned to the other two phases of the offset process after he had commenced his training in Plateburning, Papillon never expressed a desire to rescind his decision to work in Plateburning in order to have an opportunity to train in .the Web or sheet-fed process. Not long after Papillon began training in the Plateburning department, an individual named Jack Beers began training there. Beers had initially chosen to be trained in the Sheet-fed phase of the offset process. This operation, which involves considerably more physical labor than Plateburning, proved too strenuous for Beers. Consequently, after only two or three weeks in that position, Beers, at his own request, was removed from that department and returned to his former position as a letter pressman. Approximately one year later, after all other employees in the plant had had an opportunity to be trained in one phase of the offset process, an opening arose in Plateburning. Every remaining employee then in the letter press department was asked to accept that position. All declined. Rather than hire a new employee, the Company, with the approval of the Union’s general membership, offered the job to Beers. Beers began training in Plateburning and took the position immediately above Papillon on that department’s seniority list. Beers himself was laid off on June 9, 1975. Plateburning at the Hughes facility is, when fully operative, an eight-man operation. The department’s roster on July 11, 1972, the date of the first layoff experienced by Papillon, was: NAME SENIORITY DATE Samuel Kuplszewski November 28, 1942 William Dildlne June 18, 1950 Harold James March 3, 1954 Donald Clifton April 30, 1954 Harold Treibel November 16, 1956 Jack Beers July 5, 1957 Marland Papillon October 19, 1962 Jack Detrick September 8, 1964 Subsequent to his initial layoff, Papillon, having the second lowest priority seniority within the Plateburning phase, was frequently laid off for short periods, sometimes amounting only to a day or two. In July, 1972, Papillon refused to return to his job after one of these layoffs. He cited as grounds for his refusal to return the fact that employees who had been assigned to Plateburning after him but who had more seniority continued to work while he was laid off. He did not file a grievance. Because of his refusal to return to work Papillon was discharged. Papillon sought reinstatement but was informed by the Company that he would be rehired only if he agreed to start as a “new” employee with a complete loss of seniority. Papillon reported this to the Union and a special Executive Board meeting was convened for the purpose of conferring with him regarding his discharge. The Board explained to him that the layoff procedures employed by the Company within the Plateburning department were consistent with the Union’s agreement with Hughes. At Papillon’s request, Union officers interceded with the Company officials on his behalf. The Company agreed to reinstate Papillon with full seniority after the imposition of a short suspension. Papillon continued to complain informally to union officials concerning his “seniority rights”. He also continued to experience short layoffs. However, prior to November 8, 1974, he filed no formal grievance with the Union nor did he attend any meetings at which he aired his dissatisfaction. On November 8, 1974, as the result of a permanent company-wide cut-back of employees, Papillon and Jack Detrick were laid off from Plateburning. This action was in accord with the collective bargaining agreement which provided that “ . . . employees within the lowest seniority standing in his (sic) classification shall be laid off first.” Sometime during the week between the announcement of this layoff and its effective date, Papillon was offered the position of Utilityman as well as several other non-offset process positions within the plant. Asserting that he would not “lower himself” to accept anything but a Pressman position, he declined. Other employees who accepted such positions earned an average of $10,287.28 during 1975 in comparison to an average of $12,184.42 made by Plateburners who continued to work. On November 12, 1974, Papillon filed a grievance with the Union and, shortly thereafter, attended a Union meeting at which his grievance was read aloud without comment. Although he was not prohibited or prevented from doing so, Papillon made no attempt to explain the grievance to the general membership. At the conclusion of that meeting, Papillon attended a special meeting of the Union’s Executive Board and the collective bargaining provisions concerning layoffs were again explicated to him. The Executive Board advised him that in its view there was no merit to his grievance. Papillon was advised that the general membership could, however, override the opinion of the Executive Board and it was suggested that he take the matter to the general membership for resolution. Papillon’s next action, however, was to file a formal appeal with the Union’s international offices. While that complaint was pending, Papillon, through counsel, requested a meeting with the Union and the Company. At that meeting, the reasons for Papillon’s discharge were reiterated. On March 15, 1975, Papillon submitted the merits of his grievance to the general membership and was given every opportunity to propound his position. The Union President stated the Executive Board’s opposition thereto. A secret ballot vote of the members in attendance was taken and Papillon’s grievance was rejected. Because this vote supported its view that Papillon’s interpretation of his seniority rights was in direct contradiction to the explicit language of the collective bargaining agreement, the Union’s Executive Board declined to submit his grievance to final and binding arbitration. Soon thereafter, Papillon’s formal appeal to the International President of the Union was denied and he was informed that the decision to take a case to arbitration was one to be made by the general membership. This decision had already been reached adversely to him as a result of the vote on March 15, 1975. The Court is of the view that no genuinely disputed issue of material fact exists and that the case should be decided on the motions for summary judgment. Goodman v. Mead Johnson & Company, 534 F.2d 566 (3d Cir. 4/2/76); Sound Ship Building Corp. v. Bethlehem Steel Company, 533 F.2d 96 (3d Cir. 1/16/76). Papillon has not set forth any specific facts showing that there is a genuine and material issue for trial. F.R. Civ.P. 56(e); Jamison v. Miracle Mile Rambler, Inc., 536 F.2d 560 (3d Cir. 5/19/76). There is no substantiation in the record of Papillon’s charge that the Company violated the collective bargaining agreement and acted in collusion with the Union to deprive him of his rights thereunder. His layoffs, including the most recent one which is the genesis of this case, were all in strict accordance with the contract between the Union and the Company. The source of his dissatisfaction with his layoff is his own misunderstanding or refusal to accept that contract, rather than a demonstrable breach of it by the Company.

3614912-29562

MEMORANDUM AND ORDER DOUGLAS P. WOODLOCK, District Judge. At issue in this litigation are allegations of grant date manipulation in the award of stock options to current and former directors and employees of iBasis, Inc. (“iBasis” or the “Company”). David Shut-vet and Victor Malozi (the “Plaintiffs”) are shareholders of iBasis. Each filed a shareholder derivative action on behalf of the Company, and the actions were consolidated into a case against twenty of the Company’s current and former directors and officers (the “Defendants”). The Plaintiffs allege violations of Section 14(a) of the Securities Exchange Act of 1934 (“Exchange Act”) and Section 304 of the Sarbanes-Oxley Act of 2002 (“SOX”) and raise state law claims including unjust enrichment, breaches of fiduciary duty, and waste of corporate assets. The Defendants have filed motions to dismiss, and for reasons I discuss below, I find that the Plaintiffs fail adequately to assert viable federal claims. Given the nascent stage of this litigation, I will decline to exercise my supplemental jurisdiction over the remaining state law claims. Accordingly, I will dismiss all of the claims in this case. I. Background A. Stock Option Grant Date Manipulation This litigation is part of a growing number of shareholder derivative suits focused on manipulation of the timing of stock option grants. On March 18, 2006, The Wall Street Journal published the article, “The Perfect Payday: Some CEOs reap millions by landing stock options when they are most valuable. Luck — or something else?” (Comply 58.) Since the article’s publication, a number of companies have disclosed director and officer involvement in stock option grant manipulation. In September 2006, iBasis announced an internal investigation of its previous options grant practices. (ComplV 9.) The investigation led to the discovery that “the appropriate measurement dates for determining the accounting treatment of certain stock option grants differ from the measurement dates used by the Company in preparing its financial statements.” (ComplJ 9.) In October, the Company announced that the SEC had initiated its own investigation into the matter. (ComplV 79.) Ultimately, the Company issued an accounting restatement on June 12, 2007 that totaled $10 million. (Comply 9.) The restatement revealed that the Company had uncovered e-mail messages either sent to or from Jonathan Draluck (“Draluck”), the General Counsel at the time, indicating that the option grant dates were likely determined in hindsight. (ComplJ 80.) B. 1997 Stock Incentive Plan and Stock Option Grant Manipulation The granting of iBasis stock options at times relevant to the Complaint was controlled by the Company’s Amended and Restated 1997 Stock Incentive Plan (“1997 Plan”). (ComplJ 44.) The 1997 Plan gave the Compensation Committee authority to grant stock options pursuant to the terms of the 1997 Plan. (ComplJ 46.) The terms required that “the purchase price under an Incentive Stock Option [awardable only to employees] shall not be less than 100% of the Fair Market Value of the Common Stock on the date of grant of such Option.” (ComplJ 45.) The Fair Market Value of the Common Stock was determined based on the last reported NASDAQ price. (ComplJ 45.) The Plaintiffs have identified six dates when alleged stock option grant date manipulation took place: May 25, 2000; April 4, 2001; June 20, 2001; November 15, 2001; November 19, 2001; and September 14, 2004. (ComplJ 50.) Plaintiffs claim the first five dates involved stock option backdating and the last date involved stock option spring-loading. (Compl,¶¶ 70, 74) Using an algorithm based upon the work of an options backdating expert, the Plaintiffs assert that there is only a .024 percent probability that the five backdated grants would have occurred randomly. (ComplJ 72.) Specifically, Plaintiffs allege: • The May 25, 2000 option grant was priced at the lowest share price for the 14 month period of November 10, 1999 through September 29, 2000. Plaintiffs allege that Ofer Gneezy was granted 13,333 stock options; Michael Hughes was granted 8,333; John Henson, Jr. was granted 8,333; and Gordon VanderBrug was granted 10,000. • The April 4, 2001 option grant was priced at the lowest share price for the 22 month period of November 10, 1999 through July 30, 2001. Plaintiffs allege that Dan Powdermaker was granted 41,667 stock options. • The June 20, 2001 option grant was priced at the lowest share price for the three month period of April 20, 2001 through July 20, 2001. Plaintiffs allege that W. Frank Bang was granted 26,667 stock options. • The November 15, 2001 option grant was priced within $0.24 per share of the lowest share price for the seven month period of November 19, 2001 through February 5, 2002. Plaintiffs allege that Charles Corfield was granted 13,333 stock options; Charles Gi ambalvo was granted 15,000; W. Frank King was granted 16,667; Dan Powdermaker was granted 10,000; Charles Skibo was granted 13,333; Gordon VanderBrug was granted 16,-667; Paul Floyd was granted 20,000; Ofer Gneezy was granted 16,667; Sean O’Leary was granted 11,666; Carl Redfield was granted 13,333; and Richard Tennant was granted 50,000. • The November 19, 2001 option grant was priced within $0.06 per share of the lowest share price for the three month period of November 19, 2001 through February 5, 2002. Plaintiffs allege that Charles Skibo was granted 16,667 stock options. • The September 14, 2004 option grant was dated on the day before iBasis announced the launch of its Pingo service, which precipitated a 10% increase in the Company’s stock price over the next four weeks. Plaintiffs allege Ofer Gneezy, Paul Floyd, Dan Powdermaker, Charles Tennant, and Gordon VanderBrug received a total of 66,665 of these stock options. (CompLW 67, 74,100.) C. The Defendants Twenty former and existing iBasis employees and directors are named as defendants: Ofer Gneezy (“Gneezy”) has been the Company’s President, Chief Executive Officer (“CEO”), Treasurer and a director since August 1996. (Comply 16.) He served on the Compensation Committee from 1999 to 2005. Id. Plaintiffs allege, on information and belief, that Gneezy received backdated stock options as well as spring-loaded options. Id. Gordon VanderBrug (“VanderBrug”) has been the Company’s Executive Vice President, Assistant Secretary, and a director since October 1996. (Comply 17.) On information and belief, the Plaintiffs allege that VanderBrug received backdated stock options as well as spring-loaded options. Id. Dan Powdermaker (“Powdermaker”) has been one of the Company’s Senior Vice Presidents since June 2002. Before that, he served as a Vice President from 1998 to 2000 and the Director of Carrier Sales from 1997 to 1998. (Compl.1fl8.) The Plaintiffs allege, on information and belief, that Powerdermaker received backdated and spring-loaded stock options. Id. Richard G. Tennant (“Tennant”) has been the Company’s Chief Financial Officer (“CFO”) since October 2001. (ComplV 19.) He has also been a Senior Vice President since February 2006 and held various other employee positions since October 2001. Id. The Plaintiffs allege, on information and belief, that Tennant received both backdated and spring-loaded stock options. Id. Paul Floyd (“Floyd”) has been a Senior Vice President at the Company since September 2001 and also served as a Vice President for five months before then. (Comply 20.) The Plaintiffs allege, on information and belief, that Floyd received backdated and spring-loaded stock options. Id. Charles Skibo (“Skibo”)has been a Company director since September 1999. (Compl.K 21.) In addition, he was a member of the Compensation Committee from 1999 to 2000 and resumed that role again starting in 2001 until the present. Id. The Plaintiffs allege, on information and belief, that he received backdated stock options. Id. W. Frank King (“King”) has been a Company director since June 2001 and a member of the Audit Committee since 2002. (CompUi 22.) ' The Plaintiffs allege, on information and belief, that King received backdated stock options. Id. Charles Corfield (“Corfield”) has been a Company director since September 1997 and a member of the Audit Committee since 1999. (ComplJ 23.) Corfield has also been a member of the Compensation Committee since 2002. Id. The Plaintiffs allege, on information and belief, that he received backdated stock options. Id. David Lee (“Lee”) has been a Company director since May 2002 and a member of the Audit Committee since 2003. (ComplJ 24.) The Plaintiffs do not allege that Lee received any backdated or spring-loaded stock options. Id. Robert Brumley (“Brumley”) has been a Company director since September 2005. (ComplJ 25.) The Plaintiffs do not allege that he received any backdated or spring-loaded stock options. Id. Daniel Price (“Price”) served as a Senior Vice President and as a Company director from February 2001 until about August 2001. (ComplJ 26.) The Plaintiffs do not allege that he received any backdated or spring-loaded stock options. Id. Charles Giambalvo (“Giambalvo”) served as a Company Senior Vice President from January 2000 until sometime in 2001. (ComplJ 27.) The Plaintiffs allege, on information and belief, that he received backdated stock options. Id. Sean O’Leary (“O’Leary”) served as a Company Senior Vice President from August 2002 to August 2003. (ComplJ 28.) The Plaintiffs allege, on information and belief, that he received backdated stock options. Id. John Henson, Jr. (“Henson”) served as a Company Vice President from 1998 to November 2000. (ComplJ 29.) The Plaintiffs allege, on information and belief, that he received backdated stock options. Id. Michael Hughes (“Hughes”) served as the Company’s CFO and as a Vice President from August 1998 through 2001. (ComplJ 30.) The Plaintiffs allege, on information and belief, that he received backdated stock options. Id. Jonathan Draluck (“Draluck”) served as a Company Vice President, General Counsel, and Secretary from about January 2001 to about October 2006. (ComplJ 31.) The Plaintiffs do not allege that he received any backdated or spring-loaded stock options. Id. Carl Redfield (“Redfield”) was a Company director from September 1999 to July 2002. (ComplJ 32.) The Plaintiffs allege, on information and belief, that he received backdated stock options. Id. John Jarve (“Jarve”) was a Company director from August 1998 to May 2001. (ComplJ 33.) He also served on the Compensation Committee from 1999 to May 2001 and the Audit Committee in 2001. Id. The Plaintiffs do not allege that he received any backdated or spring-loaded stock options. Id. Charles Houser (“Houser”) served as a Company director from October 1997 to about February 2001 and as a member of the Audit Committee in 1999. (ComplJ 34.) The Plaintiffs do not allege that he received any backdated or spring-loaded stock options. Id. Peter Aquino (“Aquino”) served as a Company director from August 2004 to September 2005. (ComplJ 35.) The Plaintiffs do not allege that he received any backdated or spring-loaded stock options. Id. Gneezy, VanderBrug, Skibo, King, Cor-field, Lee, Brumley, Redfield, Jarve, Houser, and Aquino are the “Director Defendants”. Of this group, Gneezy, VanderBrug, Skibo, King, Corfield, Lee, and Brumley were the seven Company di rectors at the time the Complaint was filed (“Directors”). (ComplV 97.) Among the Directors, Gneezy, Skibo and Corfíeld were members of the Compensation Committee at the time of the allegedly manipulated stock option grants. (Comply 100.) Corfíeld was a member of the Audit Committee during the first three option grants. (ComplV 101.) Corfíeld and King were both members of the Audit Committee when the November 15th and 19th stock options were granted. (Comply 101.) They were also members of the Audit Committee along with Lee when the September 14, 2004 option grant occurred. (Comply 101.) In addition, the Plaintiffs allege that Gneezy, VanderBrug, Corfíeld, Skibo and King received manipulated stock option grants. (Comply 98.) D. Procedural History David Shutvet and Victor Malozi separately filed essentially identical actions initiating this litigation on December 21, 2006. (Docket No. 1.) I granted the motion to consolidate the cases on May 1, 2007. A Consolidated Complaint against the current twenty defendants was filed on June 15, 2007. (Docket No. 33) The case is now before me on two motions to dismiss — one jointly filed motion by the several iBasis Defendants and one individually filed motion by Draluck. (Docket Nos. 36, 39.) II. Discussion A. Standard of Review A motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted is evaluated by “taking as true the well-pleaded facts contained in the complaint and drawing all reasonable inferences therefrom in the plaintiffs favor.” Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85, 88 (1st Cir.2007) (quoting Garrett v. Tandy Corp., 295 F.3d 94, 97 (1st Cir.2002)). The Supreme Court recently addressed this standard in Bell Atlantic Corp. v. Twombly noting that the claims raised must be more than simply conceivable — they must be plausible. — U.S.-, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The First Circuit in response has observed that “even under the liberal pleading standard of Federal Rule of Civil Procedure 8”, the Bell Atlantic standard requires that a complaint “allege a plausible entitlement to relief.” Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir.2007). B. Section 14(a) of the Exchange Act The Plaintiffs seek to allege that iBasis made false and misleading statements to its shareholders in its January 31, 2000 and April 13, 2005 proxy statements (the “Proxies”). (Comply 119.) In Count I, the Plaintiffs claim the Director Defendants violated Section 14(a) of the Exchange Act by allowing the Company to issue the Proxies. (Comply 119.) The Defendants raise three arguments against the Section 14(a) claim: 1) it is time barred; 2) the Consolidated Complaint fails to show a causal link between the Proxies and any harm suffered by the Plaintiffs; and 3) the Consolidated Complaint fails to meet the PSLRA pleading requirements. The first and second arguments combined are sufficient to cause dismissal of the claims. Accordingly, I will dismiss the Plaintiffs’ Section 14(a) claim without addressing the third argument. 1. The Limitations and Repose Time Bars of Section 14(a) The Section 14(a) claim can only proceed if it is brought within the relevant limitations period. The courts have recognized for Section 14(a) claims that related and similar causes of action under the Exchange Act have effectively supplied “a limitations period of ‘one year after the plaintiff discovers the facts constituting the violation, and in no event more than three years after such violation.’ ” Westinghouse Elec. Corp. v. Franklin, 993 F.2d 349, 353 (3d Cir.1993) (quoting In re Data Access Systems Sec. Litig., 843 F.2d 1537, 1550 (3d Cir.1988)) (superceded in part by statute as stated in In re Exxon Mobil Corp. Sec. Litig., 500 F.3d 189, 198 (3d Cir.2007)). The one-year limitations period functions as a statute of limitations and the three-year limitations period functions as a statute of repose. The Supreme Court has recognized this distinction, noting that because “the purpose of the three-year limitation is clearly to serve as a cutoff, ... tolling principles do not apply to that period.” Lampf, Pleva, Lipkind, et al. v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). The Plaintiffs first filed Complaints on December 21, 2006 (Docket No. 1) consequently any proxy statements filed prior to December 21, 2003 (or December 21, 2001, if the extended SOX time period were to apply, see Note 6, supra) would be barred by the statute of repose. Plaintiffs rely on a line of cases dealing with fraudulent schemes alleged to violate other provisions of the Exchange Act for the proposition that their three-year stat ute of repose did not start until March 23, 2006 when the last materially false proxy statement was filed. These cases hold that “the statute of repose runs from the date of the last fraudulent misrepresentation”. Quaak v. Dexia, S.A., 357 F.Supp.2d 330, 338 (D.Mass.2005) (Saris, J.). But the cases relied on by the Plaintiffs not only assert non-Section 14(a) claims, they involve ongoing and continuing fraudulent schemes that relate to the very core of each company’s business. See In re Stone & Webster, Inc. Sec. Litig., Civil Action No. 00-10874-RWZ, 2006 WL 1738348, at *1 (D. Mass. June 23, 2006) (Zobel, J.) (alleging that an engineering firm violated Sections 10(b) and 18 because it “deliberately underbid” on contracts in order to overstate earnings, “fraudulently concealed” its loss on a large contract, and misrepresented the likelihood of bankruptcy); In re Dynex Capital, Inc. Sec. Litig., No. 05 Civ. 1897CHB), 2006 WL 314524, at *1 (S.D.N.Y. Feb.10, 2006) (Baer, J.) (alleging that a financial services corporation that issued debt securities using mortgages as collateral violated Sections 10(b) and 20(a) by purchasing large volumes of “bad paper” without disclosing the quality of the mortgages in its public offerings); Quaak, 357 F.Supp.2d at 332 (alleging that a company violated Section 10(b) by creating and providing funding to sham holding companies in order to help increase the generation of fictitious licensing revenue). These cases “involved continuous, integrated schemes that were operated by the same group of people over a period of time to achieve the same purposes.” In re Zoran, 511 F.Supp.2d at 1014 (N.D.Cal.2007). Recent cases addressing allegations of stock option grant date manipulation under Section 14(a) have disavowed the broad fraudulent scheme approach and instead required that the initial misstatement regarding option dating fall within the statute of repose period. See, e.g., Stoll v. Ardizzone, No. 07 Civ. 00608(CM), 2007 WL 2982250, at *2 (S.D.N.Y. Oct.9, 2007) (“Pleading the existence of a ‘scheme’ does not resurrect stale claims relating to proxy statements that are more than three years old at the time an action is filed; there is no ‘continuing violations’ exception to the absolute bar of the statutory limitations period.’ ”); In re Zoran, 511 F.Supp.2d at 1014 (holding that “the statute of limitations accrues as of when the violation itself occurs, not when the last violation in a series of alleged violations occur”). The Plaintiffs have failed to provide any sort of link between the January 31, 2001 and April 13, 2005 Proxies. Even if the Defendants were engaged in a broad fraudulent scheme of granting manipulated stock options, the Plaintiffs have failed to allege that the Proxies are connected together in this scheme. Thus, despite the presumptive difficulties in discovering backdated stock options, I find that the statute of repose for Section 14(a) claims applies to each individual proxy statement. The statute of repose bars the Plaintiffs from raising a Section 14(a) claim based on proxy statements issued prior to December 21, 2003 (or December 21, 2001 if the SOX statute of repose applies). Consequently, claims based on the January 31, 2001 proxy are time barred. 2. Causation As to the April 13, 2005 proxy statement, the Plaintiffs have failed to show a causal nexus between any alleged injury to iBasis and the transactions approved in the Proxies. The First Circuit has noted that Section 14(a) claims require “transactional causation” connecting a company’s alleged injury with the “corporate transaction authorized (or defeated) as a result of the allegedly false and mis leading proxy statements.” Royal Bus. Group, Inc. v. Realist, Inc., 933 F.2d 1056, 1063 (1st Cir.1991). The Complaint states: “The January 31, 200[1] and April 13, 2005 proxies each contained proposals to ¡Basis’ shareholders that they vote to approve increases in the number of shares and options awardable under the 1997- Plan.” (Comply 119.) I observe that, while not specifically pled, the April 13, 2005 proxy statement concerned reelection of three directors alleged earlier to have engaged in stock grant timing manipulation. The Complaint further alleges that “[t]his information would have been material to ¡Basis’ shareholders in determining whether or not to approve amendments to the 1997 Plan contained in the Proxies.” (ComplA 121.) These allegations fail to create the required causal connection. As discussed above, any proxy statement before December 21, 2003 (or, perhaps, December 21, 2001) is time-barred. Thus, the Plaintiffs can only proceed with a Section 14(a) violation claim based on the April 13, 2005 proxy statement, the only other proxy statement mentioned in the Complaint. The Complaint identifies six potential manipulated options grant dates between May 25, 2000 and September 14, 2004. (Comply 50.) All of these dates pre-date the April 13, 2005 proxy statement. No backdated or spring-loaded stock options are alleged to have been issued after April 13, 2005. The Plaintiffs rely on Zoran for support that they have adequately alleged harm caused by the April 13, 2005 proxy statement. The Zoran court held that the plaintiffs had adequately alleged causation by pleading: [T]he directors used the proxy solicitations to maintain their positions on Zoran’s board. Shareholders allegedly kept voting for the board members in blissful ignorance of the scheme to grant insiders backdated options while shortchanging the company. Shareholders also authorized the stock-option plans under which the allegedly-backdated options were granted. With each election, the board could continue to grant backdated stock options to itself and Zoran executives. Zoran was damaged because defendants caused it to divert company assets to recipients of backdated stock options. Zoran was also exposed to an inquiry by the SEC as a result and has allegedly suffered damage to its reputation and investor confidence. Had shareholders known that defendants had not followed the dictates of the plan in the past, this likely would have changed their votes. Zoran, 511 F.Supp.2d at 1016. The Plaintiffs argue that a similar situation exists here, since the Company suffered harm from costs associated with an SEC investigation, additional accounting expenses, and loss in investor confidence. If the 2005 proxy statement had properly disclosed the stock option grant manipulation, then shareholders likely would have voted against the incumbent directors and amendments to the 1997 Plan, and the Company would have taken corrective action earlier. Reliance on Zoran does not assist the Plaintiffs, however, because the harms alleged by the Plaintiffs pre-date the 2005 proxy statement. Correcting a proxy misstatement might prevent future option grants from being manipulated but cannot change the impact of stock options that have already been granted. Even if the 2005 proxy statement had disclosed the actions of the directors, the fallout from the SEC investigation and the accounting restatement would still occur since the allegedly manipulated stock options had already been granted. What was at issue in Zoran, 511 F.Supp.2d at 1016 (“With each election, the board could continue to grant backdated stock options to itself and Zoran executives.”), and what the Plaintiffs fail to allege in this case are manipulated stock option grants that post-date the 2005 proxy statement. Transactional causation for stock option grant manipulation customarily involves a three-step-process. First, there is a stock option grant manipulation that pre-dates a proxy statement. Then, there is a false or misleading proxy statement that leads to approval of the recommended action, generally the reelection of directors or the amendment of the Company’s stock option plan. Finally, these directors grant additional manipulated stock options. This is the scenario alleged in Zoran and the Plaintiffs argue that the same situation exists with iBasis. They have alleged the first two requirements but have failed to allege the last required step, that any related — but not essentially preexisting — injury occurred after the shareholders approved the recommended action in the proxy statement. The Plaintiffs have failed to establish the required transactional causation linking a vote in favor of the April 13, 2005 proxy statement with new injury to iBasis. C. The Lack of a Private Right of Action Under Section 304 of the Sarbanes-Oxley Act of 2002 (“SOX”) Count II of the Complaint, a claim against Gneezy and Tennant for violating Section .304 of SOX, can only proceed if Congress actually provided a private right of action to enforce this section. After reviewing the statutory text, the structure of other sections within SOX, and the decisions of other courts, I find that no private right of action exists for the enforcement of Section 304 violations. Because the text of Section 304 does not explicitly grant a private right of action, I turn to other sources for guidance. Whether Congress intended to create a Section 304 private right of action can be gleaned from the structure of the statute’s other sections. See Alexander v. Sandoval, 532 U.S. 275, 288, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Although Section 304 is silent, Sections 303 and 306 explicitly address this issue, with the former limiting enforcement to the Securities and Exchange Commission (“SEC”) and the latter granting a private right of action. See 15 U.S.C. § 7242(b); 15 U.S.C. § 7244(a)(2)(B). As Neer v. Pelino, 389 F.Supp.2d 648 (E.D.Pa.2005) observed: “Sections 304 and 306 share an important characteristic in that each provides for issuers to be reimbursed with wrongdoing officers’ profits” while Section 303 does not. 389 F.Supp.2d at 655. By contrast, Section 303 covers SEC enforcement against officers and directors who improperly influence an accountant’s performance of a financial statement audit. 15 U.S.C. § 7242. “Given the similarity of Sections 304 and 306, a comparison of these two sections’ enforcement language is more telling than comparisons with [Section] 303”. Neer v. Pelino, 389 F.Supp.2d at 655. I too find the text of Section 306 to be the most analogous to Section 304. The explicit grant of a private right of action in Section 306 persuades me that Congress, which explicitly authorized no such private right of action in Section 304, cannot be viewed as intending to do so by implication. The type of remedy provided by Section 304 further convinces me that no right of private action exists for this section. The language of Section 304 allows for the possibility of a remedy that is punitive in nature. If the company is required to issue an accounting restatement due to the company’s material noncompliance with any securities law financial reporting requirement “as a result of misconduct”, the CEO and CFO of the company are required to pay back the bonus and incentive or equity-based compensation that they received over a twelve-month period. 15 U.S.C. § 7243(a)(1). Section 304 does not elaborate on what sort of misconduct is necessary, so the pay back remedy could be applied if any misconduct, however slight, leads to an accounting restatement. Remedies that provide greater sanctions than placing a victim in the position it would have been in had improper conduct not taken place are customarily administered by government regulators and not private citizens. Without language explicitly granting a private right of action, I cannot find that Congress intended to have the Section 304 remedy administered by private citizens. Although First Circuit courts have yet to consider whether Section 304 provides a private right of action, all other courts that have had the occasion to address the issue directly have found that Congress did not create a private right of action for purposes of enforcing Section 304 of SOX. See In re Goodyear Tire & Rubber Co. Derivative Litig., 2007 WL 43557, at *7 (N.D.Ohio Jan.5, 2007); In re Digimarc Corp. Derivative Litig., Civil Action No. 05-1324-HA, 2006 WL 2345497, at *3 (D.Or. Aug.11, 2006); Kogan v. Robinson, 432 F.Supp.2d 1075, 1082 (S.D.Cal.2006); In re Whitehall Jewellers, Inc. Shareholder Derivative Litig., No. 05 C 1050, 2006 WL 468012, at *8 (N.D.Ill. Feb.27, 2006); In re BISYS Group Inc. Derivative Ac tion, 396 F.Supp.2d 463, 464 (S.D.N.Y. 2005); Neer v. Pelino, 389 F.Supp.2d at 657; Mehlenbacher v. Jitaru, No. 6:04CV1118ORL-22KRS, 2005 WL 4585859, at *10 (M.D.Fla. June 6, 2005). The Plaintiffs do cite one case, In re Qwest Communications Int’l, Inc. Sec. Litig., 387 F.Supp.2d 1130 (D.Colo.2005), for the proposition that courts have “suggested a private right of action exists under § 304.” But Qwest never directly addressed the private right of action issue.- Instead, that case was dismissed because the plaintiff failed to bring a derivative claim on behalf of the company and would not in any event itself be entitled to receive reimbursement under Section 304. Id. Although the text of Section 304 is not explicit about the question, I am persuaded by the statutory structure of SOX, the nature of the penalty provision, and precedent from other courts that have directly and thoughtfully considered the issue that Congress did not intend to provide a private mechanism for enforcing Section 304. Thus, I find that the Plaintiffs have no private right of action to bring a claim under Section 304. D. State Law Claims

11182248-18047

ORDER DISMISSING PETITION IRENAS, District Judge. This matter having come before the Court upon petitioner’s application for ha-beas corpus relief pursuant to 28 U.S.C. § 2241, the Court having considered the submission of the petitioner, and it appearing that: 1. Petitioner, Michael A. Harris, is currently incarcerated in the Federal Correctional Institution in Fort Dix, New Jersey. 2. On June 1, 1993, Harris was sentenced in the Eastern District of Virginia to 264 months following his conviction after a jury trial on five counts of the indictment: (i) conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine (21 U.S.C. § 846) ; (ii) two counts of distributing of cocaine (21 U.S.C. § 841(a)) ; (iii) using a communication device in violation of (21 U.S.C. § 843(b)); and (iv) interstate travel to facilitate a conspiracy (18 U.S.C. § 1952(a)(3)). Petitioner received 264 months on the § 846 violation and concurrent sentences of 60 months on each of the § 841(a) violations and on the § 843(b) violation, and of 48 months on the § 1952(a)(3) violation. Pursuant to 21 U.S.C. § 841(b)(l)(A)(ii)(II), the maximum sentence for conspiring to distribute more that five kilograms of cocaine is a minimum of ten years and a.maximum of life. Obviously, Petitioner’s sentence fell within the guideline range. 3. The trial judge, in conformance with the United States Sentencing Guidelines, found by a preponderance of the evidence that petitioner was responsible for 48 kilograms of cocaine based on the testimony of a police officer at the sentencing. This resulted in a starting offense level of 34. U.S.S.G. § 2D1.1(a)(3). The offense level was enhanced by two points for possession of a weapon during the crime, U.S.S.G. § 2Dl.l(b)(l), and by two more points for obstruction of justice, apparently based on testimony given by petitioner at the trial. U.S.S.G. § 3C1.1 4. Petitioner appealed his conviction and sentence which was affirmed by the Fourth Circuit Court of Appeals. United States v. Harris, 28 F.3d 1211 (Table), 1994 WL 249449 (4th Cir.1994). A motion pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel was denied by the trial court which denial was affirmed on appeal. United States v. Harris, 112 F.3d 511 (Table), 1997 WL 211344 (4th Cir.1997). Harris then filed what he styled a Motion for Appropriate Relief which was again denied by the District and Circuit Courts. United States v. Harris, 153 F.3d 723 (Table), 1998 WL 487095 (4th Cir.1998). Petitioner asserts that he re cently filed a petition for leave from the Fourth Circuit to file a successive motion for relief under 28 U.S.C. § 2255. See last unnumbered paragraph of 28 U.S.C. § 2255 and 28 U.S.C. § 2244. The requested permission was denied by the Fourth Circuit on September 26, 2000. 5. Harris’ petition is an early round in what promises to be a heavy volley of litigation based on the United States Supreme Court decision in Apprendi v. New Jersey, — U.S.-, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In simple terms, Petitioner argues that his Fifth Amendment rights under the Due Process Clause and his notice and jury trial guarantees of the Sixth Amendment were violated because the finding that he was responsible for 48 kilograms of cocaine was not made by a jury using a “beyond a reasonable doubt” standard of proof, but rather by a trial judge at sentencing using only a preponderance standard. A similar argument could be made with respect to the enhancement for possession of a weapon during the crime. Since challenges to the legality of a federal sentence are generally brought under § 2255, we must first consider the jurisdiction of the court to consider this claim under § 2241. 6. Petitioner claims that he seeks redress from this Court under 28 U.S.C. § 2241 because relief is not available under 28 U.S.C. § 2255. See 28 U.S.C. § 2255 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (codified in relevant part as 28 U.S.C. § 2255). 7.As amended by the AEDPA, 28 U.S.C. § 2255 provides that: An application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention, (emphasis added). 8. In In Re Dorsainvil, 119 F.3d 245, 248 (3d Cir.1997), the Third Circuit held that a petitioner may seek relief pursuant to 28 U.S.C. § 2241 because his § 2255 relief has become “inadequate or ineffective” only under very narrow circumstances. In Dorsainvil, the narrow circumstance permitting the petitioner’s filing of a petition under § 2241 was a change in the Supreme Court’s interpretation of the meaning of “use” under 18 U.S.C. § 924(c), the statute pursuant to which the Dorsainvil petitioner had' been convicted. See Dorsainvil, 119 F.3d at 251. 9. Apprendi is a lengthy opinion with two concurring opinions and two dissents which were joined by four justices. This opinion puts into play the issue of where it is proper to draw the line between (i) “sentencing factors,” which may be deter mined at the time of sentencing by a low standard of proof and (ii) “elements of the offense,” which must, pursuant to the Fifth and Sixth Amendments, be properly charged in an indictment or information and be found by a jury beyond a reasonable doubt. While it is arguable that prior jurisprudence may have foreshadowed this result, it can hardly be said that a reasonable prisoner would have been required to raise this issue in a timely § 2255 filing made before Apprendi was decided. It was even less predictable that a prisoner could have foreseen the dissenting opinion of Justice O’Conner in which she suggested that the Apprendi decision could be applied to factual determinations made pursuant to the U.S.S.G. even where the ultimate sentence was below or at the statutory maximum. This Court finds that petitioner’s claim is one of the few instances where Dorsainvil operates to permit a § 2241 challenge to the lawfulness of a federal sentence. See United States of America v. Lawrence Brooks, 230 F.3d 643, 646-48 (3d Cir.2000). 10.In Apprendi the defendant fired several shots into the home of an African-American neighbor. He was indicted on a variety of charges and pled guilty to, inter alia, two counts charging possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4a, a second degree offense which normally carries a penalty range of 5 to 10 years. N.J.S.A. 2C:43-6(a)(2). New Jersey statutes permit the imposition of an “extended” term of imprisonment if The defendant in committing the crime acted, at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate, an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity. N.J.S.A. 2C:44-3(e). The statute specifically provides that the finding of bias necessary for the imposition of an extended term may be made by the trial judge by a preponderance of the evidence. If bias is found by the trial judge in connection with a crime of the second degree, the extended term statute doubles the maximum exposure from ten years to twenty years. N.J.S.A. 2C:43-7(a)(3). 11. The Supreme Court determined that the New Jersey statutory scheme in effect created and defined a series of new crimes the elements of which were the elements of the applicable second degree crime plus an intention to intimidate because of bias towards the victim. These new crimes carried statutory sentences potentially twice as large as those for second degree crimes. In a 5-4 decision, the Supreme Court held that the enhancement statute could be applied only if the indictment specifically charged bias and a jury determined beyond a reasonable doubt that the defendant act with the intent required by N.J.S.A. 2C:44-3(e). Apprendi, 120 S.Ct. at 2362-63. 12. In Petitioner’s trial the jury found beyond a reasonable doubt that defendant conspired to possess with intent to distribute and in fact distributed more than 5 kilograms of cocaine. This finding exposed the defendant to imprisonment for a minimum sentence of ten years imprisonment and a maximum term of life imprisonment. 21 U.S.C. §§ 846 and 841(a) & (b)(l)(A)(ii)(II). Thus, the actual sentence of 264 months did not exceed the statutory maximum of life imprisonment. 13. Traditionally (prior to November 1, 1987, the advent of the U.S.S.G.) a sentencing judge could consider a wide variety of factors relating either to the defendant himself (remorse, character, family circumstances, potential for rehabilitation, likelihood of recidivism etc.) or to the circumstances (other than the actual elements) of the crime itself (violence, usage of weapons, extent of the gain or profit to the defendant, extent of the loss of the victim, abuse of official position, injury or harm to the victim, leadership or limited role in the offense, etc.). The trial judge’s discretion was almost unfettered, and there was very little fact finding subject to any standard of proof in the usual sense. So long as the ultimate sentence did not exceed the statutory maximum or go below any statutory minimum (of which there were many fewer than today), the trial judge had extremely wide discretion. By codifying almost all of the factors traditionally considered by sentencing judges, providing for formalized fact finding, and assigning values to the various sentencing factors, the U.S.S.G. may have severely limited judicial discretion, but in some sense they actually increased the due process accorded to a defendant. Prior to 1987 a theoretical felon might know the maximum sentence to which his contemplated criminal actions exposed him, but not the actual sentence. Today, the Guidelines can inform the interested potential felon in what range his actual sentence might fall. 14. When Harris was sentenced, the trial judge held a hearing and determined by a preponderance of the evidence that petitioner was responsible for 48 kilograms of cocaine, used a gun, and obstructed justice. Under the U.S.S.G., these factors resulted in a significantly increased sentence, but a sentence within the statutory range. These are also factors which a preGuideline trial judge would (and should) have considered. As noted by Justice Stevens: We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — by imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case. See, e.g., Williams v. People of State of New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Apprendi, 120 S.Ct. at 2358. In United States v. Angle, 230 F.3d 113 (4th Cir.2000) Angle was tried under § 841(a) on an indictment which did not mention the quantity of drugs involved. The Fourth Circuit properly held that under Apprendi the defendant could not be sentenced to more than 20 years as provided in 21 U.S.C. § 841(b)(1)(C). However, the court also held: Where no drug quantity is charged in the indictment or found by a jury, but a jury has found a violation of § 841(a), the standard statutory term of imprisonment is not more than twenty years. See § 841(b)(1)(C). In these cases, where the quantity is not charged, the drug amount is still a proper aggravating or mitigating factor to be considered by the judge in determining a sentence at or below the statutory maximum sentence. See Apprendi, — U.S.-n. 11, 120 S.Ct. at 2359 n. 11. Thus, the judge still may determine the amount of drugs by a preponderance of the evidence for the purposes of calculating the offense level and relevant conduct under the United States Sentencing Guidelines. However, if the determination of the judge with respect to the quantity leads to a suggested sentence range ... that is greater than the twenty year statutory maximum, the judge only may sentence at or below the statutory maximum penalty, i.e. not more than twenty years. See U.S.S.G. § 5Gl.l(a). United States v. Angle at 123. 15. We hold that provisions of the Guidelines which enhance a sentence within the statutory maximum based on offense or offender characteristics which are not elements of the offense do not contravene the majority’s holding in Apprendi, even if the trial judge uses the preponderance standard of proof in making the relevant factual determinations. Of course, this holding presumes that all the statutory elements of the crime which establish the maximum sentence have properly been put before a jury and that the defendant has been found guilty beyond a reasonable doubt. The sentencing enhancements provided in the Guidelines are just a codification of factors traditionally considered by common law trial judges. The adoption of a preponderance standard of proof for establishing the factual predicates for these enhancements probably offers a defendant more due process protection than historically available during sentencing. 16. In this matter the indictment specifically charged that the defendant’s violation of § 841(a) and § 846 involved more that five kilograms of cocaine. Thus the trial court acted correctly when it sentenced the petitioner to a term within the range provided in § 841(b)(1)(A) following a determination of the actual amount by a preponderance of the evidence at sentencing and enhancing the penalty as provided in the Guidelines. 17. This Court will issue a certificate of appealability because the applicant has made a substantial showing that he may have been denied a constitutional right. See 28 U.S.C. § 2253(c)(2). As noted earlier, Justice O’Conner’s dissent suggests that Apprendi does implicate fact finding under the Guidelines even where the ultimate sentence falls below the statutory maximum. And Chief Judge Becker has recently written that: Apprendi’s implications for the legitimacy of a variety of sentencing schemes, including the United States Sentencing Guidelines, have stirred enormous controversy, portending that the number of Apprendi challenges by incarcerated defendants will soon reach tidal proportions. While I ultimately conclude that we need not and should not reach the Apprendi issue in this case, the merits of that point seem to me to be close. United States v. Mack, 229. F.3d 226, 235-36 (3d Cir.2000) (Becker, C.J., concurring) (internal citations omitted). 18. Rule 1(b) of the Rules Governing Section 2254 Cases (“Habeas Rules”) permits application of these Rules to proceedings under § 2241. Rule 4 of the Habeas Rules provides for preliminary consideration by the trial judge and dismissal before answer if it “plainly appears” that the petitioner is not entitled to relief. It might seem inconsistent to dismiss this case under Rule 4 while also granting a certificate of appealability. However, because the issue raised is fundamentally legal in nature, the proper resolution is “plain” to this Court, even if the result might be disputed by other judges. Based upon the foregoing and good cause shown, IT IS on this 1st day of November, 2000, ORDERED THAT: 1. Petitioner’s application to proceed without prepayment of fees or costs or security, in accordance with 28 U.S.C. § 1915(a) is hereby GRANTED; 2. Petitioner’s application for habeas corpus relief pursuant to 28 U.S.C. § 2241 is hereby DENIED; and 3. This Court will issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2). . Count One of the Indictment 93-1-NN from the Eastern District of Virginia charges that petitioner conspired "To knowingly, intentionally, willfully and unlawfully distribute in excess of 5 kilograms of cocaine...." . Count Nine of the Indictment charges that petitioner "willfully, unlawfully, knowingly and intentionally did distribute approximately 2 ounces of cocaine, ...” in or about May of 1991. Count Ten charges the same crime on or about August 3, 1992, for 1 ounce of cocaine. . The statutory maximum for distributing 1 or 2 ounces of cocaine is twenty years. 21 U.S.C. § 841(b)(1)(C). . Petitioner’s criminal history category as shown in the judgment of conviction is I. His sentence of 264 months was the exact middle of the sentence range of 235-293 months. . Because Petitioner is both aware of and has, apparently, exhausted his rights under 28 U.S.C. § 2255, the notice specified by United States v. Miller, 197 F.3d 644 (3d Cir.1999), is not required. To the extent that the petition herein might be construed as raising issues other than those arising under Apprendi, they are clearly barred and will not be considered in this Order. . Somewhat ironically, the arguments that Apprendi applies to a wide range of decisions made under the U.S.S.G. is given a large boost in the dissent of Justice O’Connor who writes: The [Apprendi ] principle thus would apply ... to all determinate-sentencing schemes in which the length of a defendant’s sentence within the statutory range turns on specific factual determinations (e.g. the federal Sentencing Guidelines). * * * The Court appears to hold today, however, that a defendant is entitled to have a jury decide, by proof beyond a reasonable doubt, every fact relevant to the determination of sentence under a determinate-sentencing scheme. Apprendi, 120 S.Ct. at 2391-93. Justice O’Connor goes on to predict, probably correctly, a “flood of petitions” by convicts seeking to reverse their convictions. Id. at 2395. . "Our answer to that question was foreshadowed by our opinion in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), .." Apprendi, 120 S.Ct. at 2355.

3578406-5703

SUMMARY ORDER Petitioner Dan Zhu Wong, a citizen of the People’s Republic of China, seeks review of a July 6, 2006 order of the BIA affirming the November 24, 2004 decision of Immigration Judge (“IJ”) Elizabeth A. Lamb, denying Wong’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Dan Zhu Wang a.k.a. Dan Zhu Wong, No. [ A XX XXX XXX ] (B.I.A. July 6, 2006), affg No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City Nov. 24, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of this case. When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This Court reviews the agency’s factual findings under the substantial evidence standard. See Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds hy Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). I. Wong’s Religious-Persecution Claim Substantial evidence supports the agency’s determination that Wong failed to meet her burden of proving either past persecution or a well-founded fear of persecution in China based on her alleged religious beliefs and affiliation with the Morman church. The agency reasonably deemed her testimony incredible based in part on inconsistencies between her testi mony and written asylum application. In particular, while Wong stated in her asylum application that she began work in a shoe factory in her own village in February 1998, she testified that because of her religious beliefs she was prevented by the village head from finding a job in the village where she lived. Moreover, Wong’s testimony concerning the duration of her employment at the shoe factory was internally inconsistent: she stated at one point that she worked at the factory for two years, and at another point stated that she worked there from 1998 until 2002. Because these inconsistencies were material to Wong’s claim that her religious practice interfered with her ability to find employment, it substantiated the agency’s adverse credibility determination. See Se-caidar-Rosales, 381 F.3d at 308. Once Wong’s credibility was called into doubt, the agency reasonably found that her corroborating evidence was insufficient to rehabilitate her testimony. See Zhou Yun Zhang, 386 F.3d at 78. First, the IJ reasonably gave diminished weight to letters Wong submitted from her mother and a church member from China because, in contrast to Wong’s testimony, neither letter referenced any damage to their church. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (holding that the weight afforded to documentary evidence “ ‘lies largely’ within the discretion of the IJ” (alternation omitted)); see also Singh v. BIA, 438 F.3d 145, 148 (2d Cir.2006). Likewise, the agency reasonably afforded “very little” weight to a letter Wong provided, allegedly from the branch president of the Mormon church she attended in New York, because Wong was unable to identify the author of the letter and the letterhead contained a misspelling of “New York State.” Id.-, see also Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (finding it reasonable for the IJ to infer that an applicant’s document was fraudulent because that “inference [was] made available ... by the record facts”) (alteration in original). Accordingly, we uphold the agency’s denial of Wong’s religious-persecution claim. II. Wong’s Family-Planning Claim Substantial evidence also supports the agency’s determination that Wong failed to establish asylum eligibility based on the birth of her two children in the United States. Wong’s claim that the IJ abdicated its factfinding responsibility by not specifically addressing the 2004 State Department Country Report is meritless. The agency need not “ ‘expressly parse or refute on the record’ each individual argument or piece of evidence offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). In any event, nothing in the report indicates that Wong will be subject to China’s coercive population control policies on account of her United States born children. See Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (stating that an applicant’s well-founded fear claim based on United States-born children was “speculative at best” when he failed to present “solid support” that he would be subject to the family planning policy upon his return to China); see also Wei Guang Wang, 437 F.3d at 274 (deeming insufficient to establish changed country conditions the 2004 State Department Country Report on Human Rights Practices for China and the so-called “Aird affidavit”); In re J-W-S-, 24 I. & N. Dec. 185, 190-91 (BIA 2007) (calling into question whether children born abroad are counted under China’s family planning policy). To the extent, if any, that the BIA failed to consider the transcript of a 1998 Congressional hearing or a copy of China’s Nationality Law that Wong submitted for the first time on appeal to the BIA, we also find no error. See 8 C.F.R. § 1003.1(d)(3)(iv) (“A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand.”). In any event, the evidence submitted on appeal to the BIA was neither newly available, 8 C.F.R. § 1003.2(c)(1), nor do its contents establish a prima facie claim for asylum based on United States-born children.

1924802-17117

ROSENN, Senior Circuit Judge. The defendants, Frank Termini, Nicolo P. Ardizzone, and Robert M. Ayres, were tried to a jury in the United States District Court for the District of Rhode Island and convicted on drug-related charges arising out of the smuggling of 8,785 pounds of marijuana. Following the imposition of sentence, each of the defendants appealed. We affirm. I. In the summer of 1982, the Coast Guard received information relating to the smuggling of marijuana off the shore of Rhode Island. From late July through early August of 1982, the Coast Guard had the sailing vessel Fiesta under surveillance. On the evening of August 9, 1982, the Coast Guard moved to intercept it when it was one to two miles off Watch Hill, Rhode Island. The Coast Guard was assisted on land by the Drug Enforcement Agency’s (DEA) Rhode Island Task Force. At 8:27 P.M., the Coast Guard boarded the Fiesta. They found two men, defendants Termini and Ardizzone, on board. The leader of the boarding party, Chief Petty Officer Gibson, ascertained upon inquiry that the vessel had no registration documents aboard. One officer smelled marijuana and observed numerous bales on the space below deck that he believed contained marijuana. The vessel contained 221 bales of marijuana weighing 8,785 pounds. The officers also found navigational charts suggesting that the boat had traveled outside United States territorial waters. In the meantime, the task force took positions onshore to apprehend the intended recipients of the marijuana. At approximately 7:25 P.M., state officers Phelps and DiCarlo observed a truck, which was towing a white speedboat about thirty feet in length on a trailer, turn onto the Quono-chontaug Breachway. Federal agents met the state officers, passed along information received from the Coast Guard, and gave surveillance assignments. They assigned Phelps to the breachway area where he observed the truck and the trailer that he had seen earlier. The speedboat was no longer there. From his observation point, agent Furtado saw the speedboat go out to sea between 7:45 and 8:00 P.M. The agents communicated their observations to each other by radio. A half hour later, a coast guard cutter illuminated the Fiesta now less than two miles from shore. Within seconds, Agent Furtado, who had been observing the Fiesta through binoculars, saw the speedboat turn and head directly back to shore. He saw it travel along the coast at a high rate of speed without using its running lights and ultimately enter the Quonochontaug Breachway. Phelps and DiCarlo left their positions and headed for the beach. By the time they reached it, the speedboat had already been lifted from the water to the trailer and the truck was departing. The officers blocked the truck’s path. The truck driver opened the cab door and fled, pursued by DiCarlo. Phelps ordered the passenger, defendant Ayres, to lie face down on the ground. Phelps handcuffed him, stood over him with a rifle, and gave him his Miranda warnings. In response to questioning by Phelps, Ayres made incriminating statements. Other agents arrived at the scene and searched the truck. They found two bags of marijuana in a storage area behind the driver’s seat and a small vial of cocaine in a door pocket of the truck on the driver’s side. The speedboat contained a box of tools. Phelps turned Ayres over to the Charlestown Police Department. On the way to the Charlestown police station, Ayres was again advised of his rights. At the station, Ayres was placed in a holding cell and once more administered Miranda warnings. Deputy Marshal Thomas then questioned Ayres and Ayres made further incriminating statements. Thomas testified that Ayres told him that he was involved in a smuggling operation. Ayres also stated that he left his house that night to meet the boat. Defendants Termini and Ardizzone also made statements subsequent to their arrest and receipt of Miranda warnings. Termini admitted that he was engaged in a smuggling operation. On appeal, the defendants raise a number of issues, the principal one relating to the failure of the trial judge to suppress statements made by defendant Ayres at the Charlestown police station. The other issues relate to evidentiary rulings by the trial judge, alleged violations of his sequestration order, and the denial of defendants’ motion for a mistrial based on the jury’s view of defendants Termini and Ardizzone in handcuffs while in the custody of marshals. II. Ayres argues that the trial court should have suppressed his statements in which he admitted involvement in the smuggling operation. At trial, the court did order that testimony about incriminating statements made by Ayres at the breachway be stricken because the comments were made while Ayres was handcuffed and a police officer stood over him with a rifle. The judge left it to the jury to decide whether the subsequent statements made by Ayres at the police station were voluntary. Ayres contends that these statements also should have been excluded as a product of an arrest made without probable cause. Ayres further argues that his statements at the police station were the unattenuated taint of his prior involuntary statements at the breachway. We turn first to Ayres’s contention that he was arrested without probable cause. A warrantless arrest is constitutionally valid if “at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Whether there is probable cause for a warrantless arrest is determined under an objective standard, not by inquiry into the officers’ presumed motives. United States v. McCambridge, 551 F.2d 865, 870 (1st Cir. 1977). To sustain a warrantless arrest, the Government is not required to show that the arresting officer had “the quantum of proof necessary to convict.” United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979). Probable cause “is a practical, nontechnical conception” offering an acceptable compromise between competing societal interests in protecting citizens on the one hand from abusive interferences with privacy and unfounded charges of crime and on the other hand in recognizing the necessity to afford “fair leeway for enforcing the law in the community’s protection.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). In this case, the district court concluded that the facts available to the agents, when viewed in their entirety, sufficiently provided probable cause to arrest. We agree. At the time of Ayres’s arrest, the state officers and federal agents, operating together and in communication with each other, had observed the trailer and speedboat approach the breachway. Agents then saw the speedboat go out toward the Fiesta, and upon its illumination, turn about and speed for shore. They saw the speedboat as it proceeded rapidly along the shore without using its running lights. By the time they reached it at the breach-way, it already had been removed from the water and loaded onto the truck, and the truck and its occupants were making a hurried departure. At this point, the officers knew that the Fiesta had a large quantity of marijuana aboard. Under such circumstances, the retreat of the speedboat from the marijuana-laden Fiesta and the obvious flight of its occupants with the truck, trailer, and speedboat were sufficient to warrant a prudent man in believing that the truck’s occupants were involved in the smuggling operations. Ayres also maintains that his statements at the police station were the unattenuated taint of his involuntary statements at the breachway. A statement made after effective Miranda warnings are provided may not be admissible if it is the fruit of an inadmissible prior statement. See Brown v. Illinois, 422 U.S. 590, 605, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975). The Court in Brown noted that several factors are relevant in determining whether a confession is a product of free will. Provision of Miranda warnings, although not dispositive, is an “important factor,” as are “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances . .. and, particularly, the purpose and flagrancy of the official misconduct.” Id. at 603-04, 95 S.Ct. at 2261-62. In this case, the district court ruled that it was unnecessary for the officer to hold a rifle over Ayres after he had already been handcuffed. These circumstances attending Ayres’s statements at the breach-way led the trial court to suppress the statements as involuntary. The court also ruled that the subsequent police actions, removing Ayres to the station, rereading him his Miranda rights, and then questioning him later that evening in an atmosphere when he appeared to be relaxed, fully composed, and in an open cell, did not render Ayres’s statements at the police station coercive or otherwise inadmissible. This court has held that in deciding whether to admit a confession made subsequent to an inadmissible confession, “[t]he appropriate inquiry then becomes whether the conditions that rendered the earlier confessions inadmissible carried over to invalidate the subsequent one.” Knott v. Howard, 511 F.2d 1060, 1061 (1st Cir.1975). In this case, removing Ayres from the scene where he was originally questioned, giving him his Miranda warnings for the third time, and interrogating him by a different officer when he was relaxed, composed, and uncoerced could well have dissipated whatever taint may have infected his prior statements at the breachway. We fail to see that Ayres’s statements at the police station were inadmissible as a matter of law; we perceive no error in their admission. Ayres also asserts that the trial judge erred in his instructions to the jury with respect to the voluntariness of Ayres’s statements. The judge instructed the jury that the statements at the breachway were involuntary as a matter of law and must be disregarded, but that it was for the jury to determine whether Ayres’s subsequent statements at the police station were volun tary. Ayres contends that by declaring only the statements made at the breachway involuntary as a matter of law, the court’s instructions to the jury implied that the court had concluded that the statements at the police station were voluntary. This argument is not persuasive. The court informed the jury in unmistakable terms that it was for the jury to determine whether the statements at the police station were voluntary. Although the court sustained a defense objection to the testimony about the statements made by Ayres at the breachway, it specifically instructed the jury that they alone were “the sole judges” of whether Ayres’s later statements were or were not voluntary. The court did not imply that the statements at the police station were voluntary. We see no error in the instruction. III. Each of the defendants argues that there were errors involving the Government’s attempt to link Ayres with Termini and Ar-dizzone by demonstrating that Termini purchased from Sears Roebuck & Co. the set of tools found in the speedboat. The defendants maintain that the belated production of certain Brady materials, the violations of a court witness sequestration order, and the non-production of confidential coast guard information entitle them to a new trial. Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), a defendant is entitled to request production of exculpatory evidence in the possession of the prosecution. In this case, a certain Sears Roebuck register receipt and a report of a failed photographic identification by a government witness, a sales clerk, were not disclosed to the defense until the middle of the trial. Government counsel explained that he was unaware of the failed photographic identification of the purchaser of the tools until the examination of the sales clerk in court. The materials, including the receipt, were thereupon given to the defendants in ample time to cross-examine the relevant witnesses. They only consisted of the single register receipt and the photographic display. The defendants have failed to show any prejudice by the production of the evidence during rather than before trial. Cf. United States v. Holmes, 722 F.2d 37 (4th Cir.1983) (one day to review stack of documents eight inches thick, which included 1,000 pages of testimony, insufficient under the Jencks Act). Absent prejudice, the defendants are not entitled to a new trial because of the belated production of the Brady materials. The defendants also complain of the possible violation by two government witnesses of the court’s sequestration order. One involved the testimony of a Sears Roebuck employee, Triplett, who discovered when he returned to the store that he had been inaccurate in his prior testimony as to the date on which he sold the tools to Termini. When Triplett concluded his original testimony, the court informed him not to discuss the case with anyone. When he returned for further examination, he acknowledged that he was present in the store when a co-employee and two supervisors informed him that the date of the sale was August 9th and not July 5th, as he had previously testified. The supervisors had confirmed the correct sales date with the aid of a cash register receipt first thought to be destroyed but later offered in evidence. The other alleged violation of the sequestration order involved Sergeant Kelly. After having testified, Kelly received a telephone call from Agent Furtado informing him that he would be required to appear in court again and that Kelly was correct in the date that he had written in his report, August 9th, relating to the Sears Roebuck sale of the tools to Termini. When the defense later called Kelly as its witness, he testified that the date he had previously given, July 9th, was incorrect and that August 9th was correct. The defense interrupted Kelly’s testimony with a motion for a mistrial because Kelly had violated the sequestration order by his conversation with Furtado. The court, in the exercise of its discretion, denied the motion. The court and jury were fully informed of the circumstances under which the two witnesses had discussed the case during a break in their testimony. The jury was able to weigh the credibility of the change in the testimony of the witnesses. The trial court could also assess the conduct of the witnesses and determine whether it was deliberate and malicious, or unintentional and harmless. We perceive no error in the district court’s exercise of its discretion to reject the motion for mistrial. The defendants also argue that they were denied a fair trial because the trial court did not compel coast guard officials to answer certain questions posed by defense counsel. The coast guard officers had testified to the tracking of a vessel believed to be the Fiesta, its approximate location on different dates, and information of the time and place where it was to be met by smaller boats. The Government asserts, and our examination of the record does not contradict the assertion, that witnesses called by the prosecution did not invoke the Classified Information Procedures Act (the Act), 18 U.S.C. app. §§ 1-16 (Supp. V 1981), during their direct or cross-examination. The defense, however, called coast guard officers as their witnesses and attempted to ascertain the source of the information for the monitoring of the Fiesta when the Coast Guard first detected it. When they declined to answer questions posed by the defense pertaining to the source for the information received by the Coast Guard, on the ground that it might lead to disclosure of classified information, the court first sustained objections on the ground of relevancy. The court reached this decision after conducting an in camera hearing. Subsequently, when the issue as to importation arose, the court reconsidered and struck the coast guard officers’ testimony pertaining to the locations of the vessel at sea as in any way identifying the Fiesta, except testimony as to its location on August 9th. The court instructed the jury that the stricken testimony could not be considered by them. The striking of the testimony obviously benefitted the defendants and we believe that this ruling and the curative charge provided the defendants with an adequate remedy. See United States v. Porter, 701 F.2d 1158, 1162 (6th Cir.1983) (whenever defendant is prevented by order from causing disclosure of classified information, the court may in the interests of justice order “such other action, in lieu of dismissing the indictment .. .,” as it determines appropriate). IV.

4011640-14587

LIVINGSTON, Circuit Judge: Respondents move to dismiss for lack of jurisdiction the petition filed by Jeanette and Benicio Ruiz (“Petitioners”) for review of a November 30, 2007, decision of the Board of Immigration Appeals (“BIA”) dismissing Petitioners’ appeal from the January 3, 2007, decision of District Director Christina Poulos denying the 1-130 petition filed by Benicio Ruiz, a citizen of the United States, for classification of Jeanette Ruiz as his spouse pursuant to 8 U.S.C. § 1154(a). As we have previously concluded that we do not have jurisdiction to review the Ruizes’ petition, we must consider whether transfer to an appropriate district court pursuant to 28 U.S.C. § 1631 is permissible and would better serve the interest of justice than dismissal. Because we determine that a district court does possess jurisdiction to entertain a petition for review of the denial of an I-130 petition and that the interest of justice is best served by transfer, we deny the motion and transfer the petition for review to the United States District Court for the District of Connecticut. BACKGROUND In February 2001, Benicio Ruiz, a citizen of the United States and a resident of Connecticut, filed a Form 1-130 “Petition for Alien Relative” on behalf of his wife, Jeanette Ruiz, an alien who is also a resident of Connecticut, seeking to have her classified as the spouse of a United States citizen. See 8 U.S.C. § 1154(a)(l)(A)(i) (“[A]ny citizen of the United States claiming that an alien is entitled to ... immediate relative status ... may file a petition with the Attorney General for such classification.”); 8 U.S.C. § 1151(b)(2)(A)(i) (including “spouses” within the broad category of “immediate relatives”). Simultaneously, Jeanette Ruiz filed a Form 1-485 “Application to Register Permanent Residence or Adjust Status,” seeking to adjust her status to lawful permanent resident. See 8 U.S.C. 1255(a) (“The status of an alien who was inspected and admitted ... into the United States ... may be adjusted by the Attorney General, in his discretion ..., to that of an alien lawfully admitted for permanent residence if ... the alien makes an application for such adjustment....”). In September 2006, the United States Citizenship and Immigration Services (“USCIS”) denied Jeanette’s 1-485 application. The adjudicating officer determined that Jeanette had demonstrated a lack of credibility by presenting conflicting accounts of her manner of entry into the United States and had been involved with Benicio Ruiz in a marriage fraud scheme. In support of the second conclusion, the adjudicating officer noted that Gabriel Pardo, a United States citizen, had previously filed an 1-130 petition on Jeanette’s behalf, that Jeanette had been unable to present evidence demonstrating that her marriage to Pardo was bona fide, that a subsequent investigation had revealed evidence that she was in fact the common law wife of Benicio Ruiz, and that she had confessed to having married Pardo for the sole purpose of obtaining entry to the United States. Drawing upon these conclusions, he exercised the discretion delegated to him by the Attorney General and refused to grant Jeanette lawful permanent resident status. Also in September 2006, USCIS notified Benicio that, as a result of Jeanette’s sham marriage to Pardo, it intended to deny Benicio’s 1-130 petition. See 8 U.S.C. § 1154(c) (barring approval of petition for immediate relative status submitted by alien who “has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States ... by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws”). In January 2007, the District Director did in fact deny Benicio’s I-130 petition on behalf of Jeanette, again citing her sham marriage to Pardo as the reason behind the denial. Petitioners appealed only the District Director’s denial of Benicio’s 1-130 petition, and not USCIS’s denial of Jeanette’s 1-485 application, to the BIA, arguing that it was a denial of due process for the District Director to reject the petition without allowing them to view or rebut the evidence upon which she relied, that Jeanette’s marriage to Pardo was bona fide, and that the petitioners never engaged in a scheme to obtain entry into the United States. The BIA dismissed Petitioners’ appeal in November 2007, finding that the District Director’s decision applied the correct legal standard, was supported by substantial evidence in the administrative record, and involved no deprivation of due process. Petitioners filed the present petition in this Court for review of the BIA’s decision to deny the 1-130 petition in December 2007. Respondents moved to dismiss the petition for lack of jurisdiction, arguing that 8 U.S.C. § 1252(a)(1) grants this Court jurisdiction to review only “final order[s] of removal” and that the denial of an 1-180 petition does not constitute a final order of removal. In an order dated June 3, 2008, we agreed with Respondents that we lack jurisdiction over this case, but directed the parties to provide supplemental briefs addressing the issue of whether jurisdiction properly lies in an appropriate district court and, if so, whether this matter should be transferred to such a district court pursuant to 28 U.S.C. § 1631. The parties agreed that a district court could properly assert jurisdiction over this matter and that this Court may choose to transfer the matter. As a result, we consider here only whether, in accordance with the position of both parties, we should transfer the case rather than dismiss it. DISCUSSION Our prior determination that we lack jurisdiction over this case does not obligate us to grant the Government’s motion to dismiss the petition. Pursuant to 28 U.S.C. § 1631, we may be required to transfer the matter to another court which may properly exercise jurisdiction over it. That section states: Whenever ... an appeal, including a petition for review of administrative action, is ... filed with ... a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such ... appeal to any other such court in which the ... appeal could have been brought at the time it was filed.... Id. As a result, we are required to transfer a case to another court when: (1) we lack jurisdiction over the case; (2) the transferee court would have possessed jurisdiction over the case at the time it was filed; and (3) transfer would be in the interest of justice. See id.; see also Paul v. INS, 348 F.3d 43, 46 (2d Cir.2003) (holding that transfer is mandatory when all conditions are met). As we have already determined that we lack jurisdiction over the case, the first of these conditions is obviously satisfied. The second condition for transfer, which requires that another court was capable of exercising jurisdiction at the time of filing, is more complicated. In general, there is a “ ‘strong presumption in favor of judicial review of administrative action.’ ” Nethagani v. Mukasey, 532 F.3d 150, 154 (2d Cir.2008) (quoting INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). Indeed, the Administrative Procedure Act provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof,” 5 U.S.C. § 702, unless review is precluded by statute or the complained-of decision was committed to agency discretion, see id. § 701(a). Unless otherwise provided, the district courts possess jurisdiction over such actions. See 28 U.S.C. § 1331; Sharkey v. Quarantillo, 541 F.3d 75, 84 (2d Cir.2008) (“Because Section 1331 confers jurisdiction on the district courts, a suit that arises under the APA is properly brought in district court.”). To the extent that it is not otherwise prohibited, then, a district court may properly exercise jurisdiction over this case. The authority of a court to review agency decisions in the immigration context, however, is expressly limited by 8 U.S.C. § 1252(a)(2)(B). Clause (i) of that statute specifically precludes all judicial review of “any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.” 8 U.S.C. § 1252(a)(2)(B)(i). Clause (ii) provides further that courts lack jurisdiction over “any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.” 8 U.S.C. § 1252(a)(2) (B) (ii). 8 U.S.C. § 1154(a)(l)(A)(i), pursuant to which Benicio Ruiz filed his 1-130 petition on behalf of Jeanette Ruiz, states that “any citizen of the United States claiming that an alien is entitled ... to an immediate relative status ... may file a petition with the Attorney General for such classification.” 8 U.S.C. § 1154(b) further provides: After an investigation of the facts in each case, ... the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative ..., approve the petition and forward one copy thereof to the Department of State. The Secretary of State shall then authorize the consular officer concerned to grant the preference status. Section 1154 is not one of the provisions enumerated in clause (i) of Section 1252(a)(2)(B). It is, however, included within “this subchapter,” as that term is used in clause (ii). See Guyadin v. Gonzales, 449 F.3d 465, 468 (2d Cir.2006) (“The phrase ‘this subchapter’ refers to subchapter II of Chapter 12 of Title 8 of the United States Code, which includes §§ 1151-1381.”). The question, then, is whether a decision to grant relief under Section 1154 is “specified under this sub-chapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). Although we have not previously had cause to consider this exact matter, the Fifth Circuit has done so. Prior to its case addressing Section 1154, the Fifth Circuit considered in Yu Zhao v. Gonzales, 404 F.3d 295 (5th Cir.2005), whether a decision to deny a motion to reopen removal proceedings under 8 U.S.C. § 1229a(c) came within the ambit of 8 U.S.C. § 1252(a)(2)(B)(ii). Noting that Section 1252(a)(2)(B)(ii) “is uncharacteristically pellucid” in precluding jurisdiction only when a specified statute itself commits a particular decision to the discretion of the Attorney General, it held that the decision to deny a motion to reopen was not “specified under this subchapter to be in the discretion of the Attorney General” because the relevant statutory provisions “only set forth the standards for evaluating a motion to reopen; they do not furnish us with a level of deference to afford the Attorney General in making that evaluation.” Yu Zhao, 404 F.3d at 302-03. In Ayanbadejo v. Chertoff, 517 F.3d 273 (5th Cir.2008), the Fifth Circuit extended this reasoning to the context of an 1-130 petition. Relying on Yu Zhao, the court held that judicial review of the denial of such an application was available because the language of Section 1154 does not specify expressly that such a decision is committed to the Attorney General’s discretion. Id. at 277-78. Our own case law strongly supports the Fifth Circuit’s approach. In Nethagani v. Mukasey, 532 F.3d 150 (2d Cir.2008), we considered whether 8 U.S.C. § 1252(a)(2)(B)(ii) relieved us of jurisdiction to review an agency determination that an alien was ineligible for relief from removal under 8 U.S.C. §§ 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii) because he had been convicted of a “particularly serious crime.” Nethagani, 532 F.3d at 152. We initially turned to the text of the relevant statutory provisions, which require respectively that the Attorney General “ ‘determine[ ]’ ” and “ ‘de-eide[ ]’ ” whether an alien “ ‘has been convicted by a final judgment of a particularly serious crime.’ ” See id. (quoting 8 U.S.C. §§ 1158(b) (2) (A) (ii), 1231(b)(3)(B)(ii)). Considering this language, we stated that “[t]he question is not whether these inquiries require an exercise of discretion. They probably do.” Id. at 154. Rather, the important question is “whether the text of the subchapter in which [the relevant provisions] appear ‘speeifie[s]’ that the ‘decision’ is ‘in the discretion of the Attorney General.’ ” Id. (second alteration in original) (quoting 8 U.S.C. § 1252(a)(2)(B)(ii)). We determined that Sections 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii) do not so specify because they lack “additional language specifically rendering that determination to be within [the agency’s] discretion (e.g., ‘in the discretion of the Attorney General,’ ‘to the satisfaction of the Attorney General,’ etc.).” Id. at 154-55. In Nethagani, then, we articulated a standard for determining whether Section 1252(a)(2)(B)(ii) precludes review of a particular decision that is substantially similar to that adopted by the Fifth Circuit in Yu Zhao. Like the provisions at issue in Nethagani, Section 1154 does not specify that a determination as to whether an alien is eligible for classification as an immediate relative of a United States citizen is “in the discretion of the Attorney General,” or that an applicant must prove eligibility for classification “to the satisfaction of the Attorney General.” See Nethagani, 532 F.3d at 154-55. Rather, it merely requires the Attorney General to “determine[ ]” whether the facts alleged in a petition are true, and to “determine! ]” whether, based on those facts, an alien meets the legal definition of “immediate relative.” 8 U.S.C. § 1154Q3). As such, it does not contain “additional language specifically rendering [these] determination[s] to be within [the Attorney General’s] discretion.” Netha gani, 532 F.3d at 154. It “only set[s] forth the standards for evaluating [an 1-130 petition]; [it does] not furnish us with a level of deference to afford the Attorney General in making that evaluation.” Yu Zhao, 404 F.3d at 303. Section 1252(a)(2)(B)(ii), then, does not preclude judicial review of the denial of Benicio Ruiz’s 1-130 petition pursuant to Section 1154(b), and a district court may properly exercise jurisdiction over this ease.

2176400-26363

EDWARDS, Circuit Judge. These two appeals resulted from a suit originally filed in 1957 in the United States District Court for the Eastern District of Michigan by the General Electric Company. General Electric sought a declaratory judgment establishing invalidity and General Electric’s nonin-fringement of two patents held by Sciaky Bros., Inc., under license from Welding Research, Inc. Sciaky and Welding Research then filed a counterclaim claiming infringement of the two patents by General Electric. Both patents in suit describe method and apparatus for converting multiple or three-phase electric power into single-phase power principally for use in welding machine circuits. The record indicates that they represented an important development in welding machine manufacturing. The early history of this case is set forth in General Electric Co. v. Sciaky Bros., Inc., 187 F.Supp. 667 (E.D.Mich. 1960), and this court’s opinion in the appeal of the same-styled case, 304 F.2d 724 (6th Cir. 1962). In this latter opinion Judge (now Chief Jifdge) Weick for this court affirmed the District Judge in holding that Sciaky’s basic patent claims were valid and that General Electric had infringed them. The case was then remanded to the United States District Court for determination of damages. Thereupon the District Judge appointed a Special Master to hear evidence on damages and on the question of willful infringement as related to Sciaky’s claim for punitive damages. The Master took extensive testimony and entered a lengthy report (including strong affirmative findings concerning willfulness on the part of General Electric) awarding $668,537.59 compensatory damages, plus interest, and $500,000 in increased damages. A successor District Judge then affirmed the Master’s award. Both parties have appealed. General Electric challenges the District Court’s findings on the issue of willfulness and the method utilized by the Master in calculating Sciaky’s damages, as well as the amount of damages assessed. Sciaky seeks additional damages and interest, as well as an award of attorney fees. Appellant General Electric presents two issues which it states as follows: “(1) The Special Master and the District Court erred in holding General Electric a willful and deliberate in-fringer and in assessing punitive damages on that account. “(2) The Special Master and the District Court erred in figuring the compensatory damages due Sciaky by a procedure, admittedly contrary to legal precedent, in which ‘overall income’ was calculated without considering fixed overhead expense. This resulted in an award far exceeding Sciaky’s normal rate of profit, which, the law says, is the correct measure of damages for lost sales.” WILLFUL INFRINGEMENT At the outset we observe that we believe that the “clearly erroneous” standard of review applies in this case. In Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960), the Supreme Court said : “Where the trial has been by a judge without a jury, the judge’s findings must stand unless ‘clearly erroneous.’ Fed.Rules Civ.Proc., 52(a). ‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746. - ;The rule itself applies also to factual inferences from undisputed basic facts, id., at 394, 68 S.Ct. at page 541, as will on many occasions be presented in this area. Cf. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 609-610, 70 S.Ct. 854, 94 L.Ed. 1097.” Id. at 291, 80 S.Ct. at 1200. (Emphasis added.) There were two evidentiary hearings in this litigation — one before the District Judge in the original case, and the other before the Master, which produced the record with which this appeal is directly concerned. In both of these hearings witnesses were presented and cross-examined. And, of course, there was opportunity for presentation of other witnesses. General Electric points out that much of the evidence of willfulness upon which Sciaky (and the Master and the District Judge) relied consisted of depositions or letters or reports. And, of course, findings based entirely on such documentary evidence have been construed as subject to closer than normal appellate scrutiny. Seagrave Corp. v. Mount, 212 F.2d 389 (6th Cir. 1954); A. J. Industries, Inc. v. Dayton Steel Foundry Co., 394 F.2d 357 (6th Cir. 1968); 5 J. Moore, Federal Practice ¶¶ 52.04, 53.12 [4], But the relating of this documentary evidence to that of the live witnesses could obviously be done best by the hearing officers who saw and heard the witnesses. The record indicates that Sciaky generally presented its own witnesses live but deposed General Electric’s employees and tendered their depositions. General Electric, of course, could have but did not call these witnesses to the stand in person. If the District Judge at the original trial and the Master in the hearing on damages were favorably impressed by Sciaky’s live witnesses, they had a right to weigh these impressions in the balance while dealing with the often conflicting statements contained in the documentary evidence. And in any event, as the Supreme Court pointed out in Duberstein, supra, the clearly erroneous rule, Fed. R.Civ.P. 52(a), applies to factual inferences drawn from undisputed facts. Although the District Judge in the original trial did not squarely pass upon the issues of willfulness and punitive damages, he did note: “This court finds as a fact that General Electric’s welding patent department was put to terrific strain by its higher ups and by the trade to come up with something that would be superior to the Sciaky patent. It couldn’t do it. At one time it thought that the three-phase to the one phase system of Sciaky would be too costly but Sciaky’s machine proved to be cheaper, easier to install, more economical to run and in many ways superior to anything that was on the market at the time. That was when General Electric then made preparation to copy the Sciaky system practically in toto. It might even be inferred that General Electric not only deliberately knew but wilfully adopt ed the Sciaky system and by its guaranteeing to save its customers harmless from Sciaky it threw down the gauntlet. In other words it might easily be concluded that General Electric pirated the Sciaky patents ’708 and ’083 since each had a novel manner of controlling the three-phase welder with the old transformer power circuit, while Sciaky ’083 presented an entirely new principle of three-phase welding. But, of course, we make no such direct charge or conclusion.” General Electric Co. v. Sciaky Bros., Inc., 187 F.Supp. 667, 678 (E.D.Mich. 1960). In the second trial the Master entered the following findings as to which the successor District Judge found “adequate basis in the record to support the master’s finding of wilful infringement” : “50. The Master finds that General Electric wilfully and deliberately infringed Sciaky’s patents in suit, and for that reason the damages to be paid to Sciaky by General Electric should be increased. “51. The Master finds that General Electric’s welding patent department was put to terrific strain by its higher-ups and by the trade to come up with something that would be superior to the Sciaky patents. It couldn’t do it. At one time it thought that the three phase to the one phase system of Sciaky would be too costly but Sciaky’s machine proved to be cheaper, easier to install, more economical to run and in many ways superior to anything that was on the market at the time. That was when General Electric then made preparation to copy the Sciaky system practically in toto. General Electric not only deliberately knew but wilfully adopted the Sciaky system and by its guaranteeing to save its customers harmless from Sciaky, even before it had sold a single control, threw down the gauntlet. It is clear that General Electric pirated the Sciaky patents in suit since each had a novel manner of controlling the three phase welder with the old transformer power circuit while Sciaky’s ’083 presented an entirely new principle of three phase welding. These are some of the reasons why the Master finds that General Electric is a wilful and deliberate infringer. “52. The Master finds that the opinion given by the General Electric patent department to its interested personnel, stating General Electric had the right to copy the Sciaky patented machine, was not a sincere one. That it was given even though both the General Eelctric patent department as well as its searching department in Washington admitted that Sciaky would be able to obtain a patent or patents on its inventions. The General Electric patent department relied on prior art, which its Washington associate characterized as being of little value. The General Electric patent department submitted its opinion to the patent department of General Electric English affiliate, and was warned that the opinion was not sound. To hedge on the opinion, the General Electric patent department urged a settlement with Sciaky and also advised the General Electric welding department, that if a suit were brought by Sciaky, the welding department should be warned that the entire costs and damages, if any, would be charged directly against that department. “53. The Master finds that the manner in which General Electric brought its two law suits against Sciaky clearly bolsters the Master’s finding, that General Electric realized it was a wilful and deliberate infringer from the start and that these suits were filed as a last resort to force Sciaky to come to some settlement with General Electric. “54. The Master further finds that the various legal opinions relating to Sciaky’s patents, rendered to General Electric eight years after it had com menced its wilful and deliberate infringement were necessarily ..colored by the situation the attorneys found General Electric to be in at that time. The opinions are also immaterial for they could not excuse General Electric’s deliberate and wilful infringement which it had commenced - eight years before these opinions were supplied. “55. The Master therefore finds that because of General Electric’s wilful and deliberate infringement of Sciaky’s patents the damages which General Electric be required to pay to Sciaky shall be increased in the sum of $500,000.00.” The District Judge adopted the report of the Master, noting that the Jáct findings of a master cannot be . set aside in patent infringement cases unless clearly erroneous. Fed.R.Civ.P. 53(e) (2) (“In an action to be tried without a jury the court shall accept the .master’s findings of fact unless clearly erroneous. * * * ”); Tilotson Mfg. Co. v. Textron, Inc., 337 F.2d 833, 841 (6th Cir. 1964); Patrol Valve Co. v. Robertshaw-Fulton Controls Co., 210 F.2d 146, 152 (6th Cir. 1954). See also, Tilghman v. Proctor, 125 U.S. 136, 149-150, 8 S.Ct. 894, 31 L.Ed. 664 (1888). And, as we have previously noted, where the District Court adopts the Master’s findings of fact, Fed.R.Civ. P. 52(a) provides that such findings “shall be considered as the findings of the court” which cannot be set aside unless “clearly erroneous.” This case, of course, begins with final judgments that Sciaky’s patents are valid and that General Electric infringed them. Further, the commercial value of the Sciaky patents and their great competitive impact upon General Electric’s welding machine controls business is firmly established by this record. As to General Electric’s decision to infringe, General Electric’s brief does not dispute that “General Electric tried out the Sciaky system, decided it was good, tried to find something better, couldn’t do so, and elected to market it in competition with Sciaky.” But General Electric in effect contends it was entitled to take the action that it took without being found guilty of “willful infringement” because it had an “honest doubt” about the validity of Sciaky’s patents. In this regard it relies particularly upon a patent “clearance” by its own patent department and a long subsequent patent opinion from a private patent firm. Of course, we recognize that a good-faith opinion by competent and independent patent counsel may be important evidence to be weighed on the issue of “honest doubt” of patent validity. Continental Can Co. v. Anchor Hocking Glass Corp., 362 F.2d 123 (7th Cir. 1966); Union Carbide Corp. v. Graver Tank & Mfg. Co., Inc., 282 F.2d 653 (7th Cir. 1960), cert. denied, 365 U.S. 812, 81 S.Ct. 692, 5 L.Ed.2d 691 (1961). But we do not consider the “patent clearance” eventually issued by General Electric’s own patent department to be conclusive on this issue under the facts of this case. McCulloch Motors Corp. v. Oregon Saw Chair Corp., 245 F.Supp. 851 (S.D.Cal. 1965). We believe that there are important factors contained in this record which supply a strong factual basis for the Master’s and the District Judge’s rejection of the “honest doubt” defense. Among these are the following: 1. General Electric’s own patent department expressed serious doubts about General Electric’s patent position vis-a-vis Sciaky. 2. No outside counsel was consulted on a matter of such great importance as this prior to the decision to infringe. 3. The British subsidiary of General Electric wrote a patent letter warning that Sciaky would get patents. 4. The General Electric patent department, immediately after its clearance letter, warned the control division of General Electric that it would have to bear any costs of patent litigation. 5. After the initiation of the instant case, General Electric researched and filed an infringement action against Sciaky concerning eight patents which General Electric held, although there is no indication of any prior General Electric interest in claiming such infringements. Concerning this litigation one of General Electric’s patent attorneys stated before the District Court in the first trial: “Somebody then in General Electric said, ‘We have got a lot of patents, haven’t we?’ And somebody said, ‘Yes.’ ‘What are we doing with them ?’ ‘They are sitting over there in the file.’ ‘Well, that doesn’t seem very sensible, why doesn’t somebody look them up and see what they are, see who is infringing on these things, and why not start with Mr. Sciaky.’ And so they did, and they found eight patents in the General Electric portfolio that appeared to be infringed by Sciaky. ****** “I don’t think anybody is very proud of this on the General Electric side, but nevertheless, they finally got around to it and the net result was that a second complaint was filed and this is a straight conventional garden variety patent infringment suit by General Electric against Sciaky, charging Sciaky with infringement on these 8 patents.” 6. General Electric copied Sciaky’s inventions in toto. 7. It waited to do so until Sciaky had achieved considerable commerical success with them and had put General Electric’s control department under serious competitive pressure. On this entire record we do not believe we can declare the Master’s (and the District Judge’s) findings of willfulness to be “clearly erroneous.” And if we were required to judge the documentary evidence on this issue de novo (Cf. United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966)), we would find (as did the Master and the District Judge) that General Electric’s infringement was both willful and deliberate. OVERHEAD EXPENSE General Electric’s second claim of reversible error is that the Master allowed Sciaky damages from lost sales due to General Electric’s patent infringement which disregarded fixed overhead expense. The applicable statute concerning damages provides: “§ 284. Damages “Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court. “When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. “The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances.” 35 U.S.C. § 284 (1964). As to this issue, the District Judge’s Memorandum Opinion said: “The master found that 92 infringing machines were sold by General Electric or its original equipment manufacturers during the accounting period, 50 of which would in all reasonable probability have been sold by Sciaky, but for the infringement. As to these fifty machines, the master calculated Sciaky’s damages by considering on an individual basis what profit Sciaky would have made had it manufactured and sold each of the infringing machines. In using this approach, the question arises, as pointed out at page 16 of the report, as to whether Sciaky should have charged a portion of the fixed general overhead expenses against each equivalent machine as an added expense, thereby reducing its lost profit by the amount of added expense. The court observes that Sciaky introduced the testimony of two experts to support its theory in not charging fixed expense to the profits it would have earned on an equivalent machine; General Electric offered no testimony to contradict this contention. Furthermore, the court finds that the master’s decision not to charge fixed expenses to the equivalent machine in determining Sciaky’s loss of income or overall damages as to each machine is the correct procedure inasmuch as it compensates Sciaky for all the income which it in fact did lose as a result of the infringement, in accordance with § 284.” We can, we think, be succinct in dealing with this issue. General Electric really seeks to present it as an issue of law, claiming in effect that this court should reverse the District Court because Sciaky’s expert accountants’ testimony was in error in its treatment of the general overhead item of expense. The record is clear that the accounting presented by Sciaky’s witnesses' and accepted by the Master and the District Judge did include some overhead expenses, but it is also clear that general fixed overhead expenses such as officers’ salaries, realty taxes, insurance, etc., were not charged to the individual sales for loss of which damages were awarded. Sciaky’s expert accountant witnesses testified that these general overhead expenses were paid by Sciaky during the years in question and would not have been greater if these additional machines had been produced and sold by Sciaky. While General Electric" vigorously disputes this theory, it is by no means novel in patent damage cases. See Electric Pipe Line, Inc. v. Fluid Systems, 250 F.2d 697 (2d Cir. 1957); Riverside Heights Orange Growers’ Ass’n v. Stebler, 240 F. 703, 712-713 (9th Cir. 1917). Whether Sciaky’s accounting method was accurate or not was a matter to be decided on the basis of testimony in the hearing before the Master. This was the specific function of that hearing. We do not believe that this issue can properly be decided as a matter of law before this court on appeal. Since General Electric failed to present any expert testimony on the accounting issue at the hearing before the Master, it cannot point to any evidence which would lead us to conclude that the Master’s finding based on Sciaky’s accountants’ testimony was clearly erroneous. On this issue, too, we affirm the District Judge’s confirmation of the Master’s report and recommendation. When we turn from the issues presented by the General Electric appeal to those presented by Sciaky, we find the same denunciations of the Master’s failure adequately to assess and analyze the evidence which he heard. Like the District Judge, we find these attacks no more persuasive in Sciaky’s appeal than we did those in General Electric’s. DAMAGES FOR LOST SALES Sciaky’s first claim is that it should have been awarded damages for lost sales not for 50 machines, as found by the Master and District Judge, but for all 92 of the infringing machines which were built in the years in issue. We believe the Master and the District Judge followed the correct legal theory in determining this issue as set forth in Aro Mfg. Co. v. Convertible Top Replacement Co., Inc., 377 U.S. 476, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964): “[T]he present statutory rule is that only ‘damages’ may be recovered. These have been defined by this Court as ‘compensation for the pecuniary loss he [the patentee] has suf fered from the infringement, without regard to the question whether the defendant has gained or lost by his unlawful acts.’ Coupe v. Royer, 155 U.S. 565, 582, 15 S.Ct. 199, 39 L.Ed. 263. They have been said to constitute ‘the difference between his pecuniary condition after the infringement, and what his condition would have been if the infringement had not occurred.’ Yale Lock Mfg. Co. v. Sargent, 117 U.S. 536, 552, 6 S.Ct. 934, 29 L.Ed. 954. The question to be asked in determining damages is ‘how much had the Patent Holder and Licensee suffered by the infringement. And that question [is] primarily: had the Infringer not infringed, what would Patent Holder-Licensee have made?’ Livesay Window Co. v. Livesay Industries, Inc., supra, 251 F.2d [469] at 471 [(5th Cir. 1958)].” Id. at 507, 84 S.Ct. at 1543. It is clear that in this case Sciaky had important competitors other than General Electric in the welding machinery business and that it did not bid on the machines which the Master eliminated from his calculations. We have read and reviewed and approve the findings of fact in relation to the individual machine transactions as set forth in the careful analysis by the Master. Certainly, we cannot hold that the District Judge’s affirmance of the Master’s report in regard to this issue was clearly erroneous. DAMAGES FROM INFRINGING USE As a matter of law, we believe the Master and the District Judge were correct in rejecting Sciaky’s claim for damages against General Electric due to “use” by others of other infringing machines. These machines had all been sold more than six years before the beginning of the accounting period. General Electric’s last contact with these machines was more than six years before Seiaky’s claim. The Patent Act, 35 U.S. C. § 286 (1964), says in part: “ * * * no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.” Further, as the Master found, Sciaky offered no proofs either as to use of the infringing machines or damages to Sciaky resulting from such use during the accounting period. INTEREST AND ATTORNEYS’ FEES The last two issues which Sciaky presents concern its claims that under the facts of this case the Master and the District Judge had the legal obligation to allow for computation of two additional damage items. On these issues the District Judge said: “The master found that General Electric should pay Sciaky 6 per cent interest on the total award of damages, such interest to commence running on the date the report is filed with the clerk of the court. Sciaky contends it is entitled to interest as of the date of the last infringement. The court finds that the matter of when interest should commence to run is discretionary with the court under § 284 in cases such as this involving wilful infringement. See Duplate Corp. v. Triplex Safety Glass Co., 298 U.S. 448 [56 S.Ct. 792, 80 L.Ed. 1274] (1936). Were wilful infringement not found, the rule would require interest to run as of the date damages were liquidated. Wm. Bros. Boiler and Mfg. Co. v. Gibson-Stewart Co., Inc., 312 F.2d 385 (6th Cir. 1963). The court, however, in its discretion, adopts the recommendation of the master that interest should begin to run as of the date of filing of the report. If the award of interest as of the date of the last infringement were mandatory in this case, the court would subtract the amount of such additional interest from the $500,000 awarded Sciaky as increased damages upon the finding of wilfulness. “The question of attorney fees was not considered by the master since he was limited in the order of reference to an assessment of damages under § 284. The statute providing for the award of attorney fees in patent litigation is § 285, which reads as follows: “ ‘The court in exceptional cases may award reasonable attorney fees to the prevailing party.’ The court finds that the award of attorney fees in a case like this involving wilful infringement is within the sound discretion of the court. Hoge Warren Zimmermann Co. v. Nourse & Co., 293 F.2d 779 (6th Cir. 1961). The court further finds that the increase of Sciaky’s recovery of $500,-000 adequately compensates it for the extra damages which it suffered as a result of General Electric’s wilfulness. Accordingly, the court denies Sciaky an award of attorney fees.” It is hard to see how the District Judge could more positively have indicated his inclination to exercise his judicial discretion in the negative as to these two issues. And it appears to this court that the statutory provision for additional damages, for interest and for attorneys’ fees are all made discretionary with the District Judge. We note, of course, that on the interest issue, both House and Senate reports on prior versions of 35 U.S.C. § 284 did contain language which could have been construed as a mandate to the District Court to award interest back to the date of infringement. Whatever prior versions of the bill or earlier committee reports may have stated, however, the critical fact is that the bill was amended so as to delete the reference to “interest from the time the infringement occurred.” Under these circumstances, we do not see how we can say that the Master or the District Judge erred as a matter of law or how either could be held to have abused his discretion. The judgment of the District Court is affirmed. . Note discussion of this issue in Lundgren v. Freeman, 307 F.2d 104, 113-115 (9th Cir. 1962).

1208668-13623

ORDER AND JUDGMENT DAVID M. EBEL, Circuit Judge. 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. Rueben E. Duran appeals, pro se, from the district court’s grant of summary judgment in favor of Community First National Bank (CFNB) on his claims for discrimination under the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691, and under 42 U.S.C. §§ 1981 and 1985(3). Mr. Duran argues that he presented sufficient evidence of disputed facts to survive summary judgment on all of his claims. We review the district court’s grant of summary judgment de novo, applying the same standard 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). We affirm. Factual Background CFNB is a national bank with branches across the United States, including one in Trinidad, Colorado. Mr. Duran is a forty-five year old man of Hispanic descent who resides in Trinidad, Colorado. In July 1999, Mr. Duran applied for a real estate construction loan in the amount of $82,100. Several days later, Mr. Duran submitted a second loan application for a business loan in the amount of $25,000 for a company called ConTech. The loan proposal was to build a “spec home” on property owned by Mr. Duran. R. Vol. I, Doc. 50 at 2,11114-5. A “spec home” is a house built in the hopes that a purchaser will buy it after it is completed. Id. U 4. Mr. Duran was the sole applicant on both loans. The real estate loan was to cover the costs of construction for the spec home. The business loan was, in Mr. Duran’s words, for “business start-up costs and ... working capital” during the construction of the spec home. Id. U 5. Mr. Duran intended to use the proceeds from the business loan as his income in order to make the monthly payments required on the construction loan. ConTech was not incorporated, but was to be a sole proprietorship owned by Mr. Duran. Neither ConTech nor Mr. Duran had ever built for sale any type of home. Charles Duran, Mr. Duran’s father, who was to be president of ConTech, did have extensive experience working on commercial construction projects. Mr. Duran had also assisted his father in remodeling his parents’ home and adding an office addition, measuring twelve feet by twenty-eight feet, to an industrial building he owned. Mr. Duran had been unemployed for seven years before his loan applications and has used, as his main source of income, rent payments from the lease of the industrial building, which never exceeded $10,600 in one year. At the time Mr. Duran applied for the loans, he had no income whatsoever because the industrial building had no tenant, and he had $100 in savings. Richard Trice, CFNB’s Senior Vice President and Loan Officer in Trinidad, reviewed Mr. Duran’s loan requests using a worksheet he uses to evaluate all commercial loan applications. Trice concluded that Mr. Duran did not qualify for the loans and informed him of that conclusion in an August 19, 1999 letter. The letter stated that Mr. Duran’s request had been denied because: (1) There is no secondary source of repayment, should the spec home fail to sell in a timely manner. Ability to service debt is based solely on the sale of the home. (2) Insufficient current cash flow: unable to verify monthly income. (3) Insufficient capital to carry any cost overruns; all capital needs are being financed. (4) Insufficient experience in projects of this type. Id. Supp. Vol. Ill, Tab G at Ex. 11. Trice also sent Mr. Duran an ECOA Notice of Action form that listed the principal reasons for the adverse action: (1) Your income was insufficient for the amount of credit requested. (2) We were unable to verify your income. (3) Your application reveals that current obligations are excessive in relation to income. (4) You lack an established earnings record. (5) ... Insufficient secondary source of repayment; Insufficient capital. Id. CFNB had a policy of avoiding collateral-based lending for all loans because foreclosure was an adversarial and expensive process. As a general rule, therefore, the Bank required applicants for commercial loans to have significant income and/or liquid assets that could be used to repay the loans. CFNB’s written loan policy provides: “[Cjollateral is not a substitute for the borrower’s ability to repay.... Cash flow is the primary source of repayment; collateral is a secondary source of repayment....” Id. Supp. Vol. IV at 5. CFNB also generally avoided giving construction loans for spec homes because they were regarded as high risk. J. Thomas Burrell only recalls four loans for spec home construction in his nine years as the branch’s president. CFNB’s loan policy provides: “Generally, speculative construction loans will be considered to builders that can demonstrate financial strength, liquidity and cash flow to service the debt.” Id. at 20. Additionally, CFNB discouraged capital loans and loans to new businesses. Their policy states: We ... discourage loans to new businesses unless management has appropriate and related experience, the business is adequately capitalized, and the loan is well-secured.... It is the policy of this Bank to discourage capital loans.... [A] capital loan is ... a term loan whose purpose is to improve the capitalization of the business. It is usually the intent of the owner to pay the loan with profits from the business. Such a loan is usually long-term, weakly collateralized, and too risky. Id. at 9. After Mr. Duran received the letter rejecting his loan applications, his father called Burrell and scheduled a meeting with him. At the meeting Burrell and Trice informed Charles Duran that CFNB would consider providing the loans if Mr. Duran could address some of CFNB’s concerns by modifying his applications. They suggested that Mr. Duran consider selling the industrial building in order to have more liquidity, but Charles Duran rejected that idea. They suggested also that Charles Duran act as a cosigner on the loan to improve the loan applications, but this suggestion was rejected as well. During the meeting Burrell and Trice explained that the two loans would be considered as one large loan for 100 percent financing, but Charles Duran insisted that the loans were separate. Other than demanding that CFNB consider the loans as two separate loans, Mr. Duran and his father never offered any modifications to Mr. Duran’s loan applications. Mr. Duran never went to CFNB or sought to meet with anyone at CFNB in regard to his loan applications. Instead, Mr. Duran and his father wrote six different letters to management at CFNB alleging discrimination against them as His panics, demanding an investigation, and seeking approval of the loans. One of these letters was written to a loan officer in Fargo, North Dakota. Charles Mausbach, CFNB’s regional manager, received a copy of this letter and sent an electronic message to Burrell and Trice telling them that he had gotten a letter from Charles Duran “claiming discrimination on a loan request for his company, ConTech. They claim it is because they are Hispanic!!” Id. Supp. Vol. II, Doc. 51, Tab 11, Ex. 44 at 2. Trice responded to Mausbach’s email, “Not sure what else we can do to smooth the waters, other than give them the loan.” Id. Mausbach replied, “[ojbviously, this is a pretty weak company, right? ... [S]imply outline the key issues in the credit and the denial.... Someone from corporate will need to respond and support your decision.” Id. Mausbach responded to the Durans’ letter on behalf of CFNB. In this letter, Mausbach stated that the denial of the loans was consistent with CFNB’s lending policy but that Mr. Duran should return to the bank in an attempt to find alternatives to modify the applications and ultimately receive approval. Charles Duran sent two more letters to CFNB. Mausbach wrote to the Durans again and reiterated that both Trice and Burrell were willing to visit with them further to discuss modifying the loan applications and that Charles Duran’s co-signature might help. Mausbach also informed the Durans that CFNB did not consider the pledging of additional collateral a primary or secondary source of repayment, but rather looked to income streams as a source of repayment. The Durans sent another letter containing the same accusations. Mausbach responded by offering to send Mr. Duran’s applications to Robert Kaufman, the bank’s Regional Credit Officer, for an independent review. Mausbach then wrote the Durans a letter to inform them that Kaufman had concurred that the loan, as presented, did not meet CFNB’s standard credit policy. Mr. Duran wrote another letter complaining that Kaufman had ulterior motives and argued “you are discounting our ‘income’ before we have a chance to earn it.” Id. Supp. Vol. Ill, Tab G at Ex. 30. Mausbach sent Mr. Duran a letter and informed him that he would no longer correspond with him. Mr. Duran filed a complaint against CFNB alleging that he was discriminated against on the basis of his race when CFNB denied his loan applications. Mr. Duran alleged that this discrimination violated the ECOA and 42 U.S.C. § 1981. Additionally, Mr. Duran claimed that there was a conspiracy among two or more of CFNB’s executive officers to deny him his rights under the ECOA in violation of 42 U.S.C. § 1985. The district court granted summary judgment in favor of CFNB on all of Mr. Duran’s claims. This timely appeal followed. ECOA Claim Mr. Duran contends that he presented sufficient evidence of disputed facts to survive summary judgment on his ECOA claim. The relevant ECOA provision states: “It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction — (1) on the basis of race, color, religion, national origin, sex or marital status, or age.... ” 15 U.S.C. § 1691(a). In order to survive summary judgment, Mr. Duran must come forward with sufficient evidence of race discrimination to create a triable issue of fact. He has failed to do so. Mr. Duran’s first argument is that CFNB discriminated against him by considering his two separate loan applications together. CFNB considered Mr. Duran’s applications as one loan because of their common purpose: to finance the building of the same spec home. R. Vol. I, Doc. 52 at 2, K 5. The construction loan was to pay for the materials and the business loan was to provide income during the construction period and to provide a means to pay the construction loan. Mr. Duran speculates that combining the loans indicates that CFNB had a discriminatory motive, but he provides no concrete evidence to that effect. Mr. Duran next argues that his collateral should have been considered as a source of repayment for the loans. But CFNB’s lending guidelines establish that “collateral is not a substitute for the borrower’s ability to repay” and that “speculative construction loans will be considered to builders that can demonstrate financial strength, liquidity and cash flow to service the debt.” R. Supp. Vol. IV at 5, 20. Mr. Duran did not satisfy CFNB’s guidelines because he had no other income from which to make the required payments. As the district court properly noted, Mr. Duran’s “argument that the bank should change its lending requirements fails to demonstrate that the Bank’s reasons for denying [his] loans are improper criteria.” Id., Vol. I, Doc. 54 at 14. Mr. Duran offers some additional complaints about the way CFNB handled his loan applications, but these arguments demonstrate only that he disagrees with CFNB’s lending requirements. Mr. Duran fails to offer any evidence linking CFNB’s loan practices and policies to race discrimination. Further, he offers no evidence of individuals with similar economic qualifications who received similar loans from CFNB or any other bank. Summary judgment on his ECOA claim is therefore appropriate. Section 1981 Claim Section 1981 prohibits racial discrimination in the making and enforcement of private contracts. 42 U.S.C. § 1981. It provides that “[a]ll persons ... shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens ....” Id. § 1981(a). Mr. Duran must prove intentional discrimination through direct or indirect evidence to prevail on his § 1981 claim. Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1073 (10th Cir.2002). Mr. Duran argues that the e-mail back-and-forth between Mausbach and Trice constitutes direct evidence of discriminatory intent because Mausbach wrote: The holding company in Fargo just got a letter from Charles Duran ... claiming discrimination on a loan request from his company, Contech. They claim it was because they are Hispanic!! Judging by the letter, they probably deserved to be turned down, but we may need to smooth the waters a bit with them. They are threatening [a] lawsuit (surprise, surprise). R. Supp. Vol. II, Doc. 51, Tab 11 at Ex. 44. This message, however, does not amount to direct evidence of discrimination because it does not show that Mausbach had negative feelings towards Hispanics or that Mausbach treated Mr. Duran differently because he was Hispanic. Rather, this e-mail simply repeats the Durans’ contention that they felt they were being discriminated against because they are Hispanic and demonstrates that Mausbach wanted to take steps to avoid the lawsuit threatened by the Durans.

3515016-23408

MEMORANDUM EDUARDO C. ROBRENO, District Judge. Presently before the Court is Defendants’ Motion to Dismiss Plaintiffs Amended Complaint (doc. no. 9). The central question presented by this motion is whether a publicly funded, private, nonprofit organization that provides services to developmentally disabled individuals is engaged in actions that are traditionally and exclusively within the province of the Commonwealth of Pennsylvania and thus can be considered a state actor for purposes of Section 1983 liability. Because the organization is not a state actor, the Court will dismiss Plaintiffs amended complaint. I. BACKGROUND The facts of this case are straightforward. Plaintiff, Dr. Lisa Schneider, was the Director of Children Services at the Arc of Montgomery County (“The Arc”) and the Arc of Montgomery County Foundation (“MARC”). According to Dr. Schneider’s own complaint, both Defendants are non-profit corporations that provide social services to developmentally disabled individuals. Amend. Compl. ¶¶ 4-6 (doc. no. 8). Defendants receive federal, state, and/or local government funding to perform these services. Id. ¶ 6. Dr. Schneider alleges that she was terminated after she reported Defendants’ use of public funds to build a new headquarters building for Defendants. Id. ¶ 15, 17, 28. Her reports included allegations of improper use of excess funds, failure to pay prevailing wages, and improper use of retained revenues. Id. She also alleges that Robert G. Mochan was terminated, like her, for speaking out on matters of public concern. Id. ¶ 26. Dr. Schneider alleges that, by terminating her, Defendants violated 42 U.S.C. § 1983 and the Pennsylvania Whistleblower Law, 43 P.S. § 1421, et seq. II. MOTION TO DISMISS Defendants move to dismiss Dr. Schneider’s amended complaint on the grounds that she has not alleged facts that, if true, would establish that Defendants were acting “under color of state law.” For the following reasons, Defendants’ motion will be granted. A. Legal Standard A plaintiff seeking relief under § 1983 must show that she has been deprived of a right secured by the Constitution and laws of the United States and that the defendant was acting under color of state law. Harvey v. Plains Twp. Police Dept., 421 F.3d 185, 189 (3d Cir.2005). The “color of state law” prerequisite to § 1983 liability is, in most contexts, identical to the “state action” requirement under the Fourteenth Amendment. Showell v. Acorn Housing Corp., 1997 WL 597897, at *2 (E.D.Pa. Sept.17, 1997) (Robreno, J.). Therefore, the primary issue before the Court is whether Defendants were acting under color of state law at the time Dr. Schneider was terminated, and whether they may be appropriately characterized as state actors for purposes of § 1983 liability. In Leshko v. Servis, 423 F.3d 337, 340 (3d Cir.2005), the Third Circuit divided state action cases into two categories: (1) cases challenging an activity that is “significantly encouraged by the state or in which the state acts as a joint participant”; and (2) cases involving an actor that is “controlled by the state, performs a function delegated by the state, or is entwined with government policies or management.” Id. In the first category, determining state action “requires tracing the activity to its source to see if that source fairly can be said to be the state. The question is whether the fingerprints of the state are on the activity itself.” Id. In the second category, private action may be characterized as state action if the private actor “is so integrally related to the state that it is fair to impute to the state responsibility for the action. The question here is whether the state so identifies with the individual (or entity) who took the challenged action that we deem the state’s fingerprints to have been on the action.” Id. B. Discussion Dr. Schneider points to two allegations that she argues support her claim that Defendants are state actors. Both of these allegations fail to support her claim. 1. Receipt of Public Funding First, Dr. Schneider points to the fact that Defendants receive public funds in support of her claim that Defendants are state actors, as receipt of these funds purportedly shows Pennsylvania “significantly encourage[s]” their activities. Amend. Compl. ¶¶ 6, 22. The receipt of public funding for an activity is not sufficient to infer a sufficiently “close nexus” between the Defendants and Pennsylvania such that Defendants’ actions may be deemed to be Pennsylvania’s, even when such funds are coupled with comprehensive regulations governing that activity. The Third Circuit has resoundingly rejected any argument to the contrary. See, e.g., Crissman v. Dover Downs Entm’t, 289 F.3d 231, 244 (3d Cir.2002) (holding that detailed regulation and receipt of state funds to operate a horse race track, without more, did not create state action); Leshko, 423 F.3d at 341 (rejecting argument that, because Pennsylvania funded and regulated foster care services, foster parents’ decisions regarding care of child constituted state activity). Dr. Schneider does not sufficiently allege that Pennsylvania “forced or encouraged, or jointly participated in, the [Defendants’ particular decision to terminate her], and therefore she states no claim of state action on the basis of state ... funding.” Leshko, 423 F.3d at 341. 2. Activities within the Traditional or Exclusive Province of the State Dr. Schneider also alleges that Defendants are engaged in actions that are traditionally and exclusively within the province of the state. Pl.’s Mem. of Law at 6; Amend. Compl. ¶ 22. These actions include the “care, education, and support of developmentally disabled adults and children and the provision of what its website describes as a children’s ‘full learning program’ featuring teachers and therapists.” Id. These allegations present a more difficult question for the Court to answer. As part of its inquiry under the second prong of the state-actor test, the Leshko Court examined whether the private defendants were performing a function that was “traditionally and exclusively” within the province of the state. Leshko, 423 F.3d at 341. If so, it held, “regardless of their formal designation by the state, they are state actors.” Id. at 343. In examining whether Defendants’ activities are traditionally and exclusively within the province of the state, the court must look to the “historical practice of the state at issue, rather than at national trends.” Id. at 344 n. 4. This inquiry sets forth a rigorous standard that is rarely met. Courts have noted that “while many functions have been traditionally performed by governments, very few have been exclusively reserved to the state.” Graham v. City of Phil., 2002 WL 1608230, at *6 (E.D.Pa. July 17, 2002) (citations omitted). In Pennsylvania, as with the United States more broadly, the care of individuals with developmental disabilities has traditionally been seen as a family and local concern. See James W. Trent, Inventing the Feeble Mind: A History of Mental Retardation in the United States 2 (1994); Okunieff v. Rosenberg, 996 F.Supp. 343, 355 (S.D.N.Y.1998) (“Since the beginning of the United States, families, friends, and guardians have cared for the mentally ill privately.”) (citing Henry M. Hurd et ah, 1 The Institutional Care of the Insane in the United States and Canada 40 (Johns Hopkins Press 1916)). It was not until the mid-1800s that the concern became one of society and the state. Trent, supra, at 2. Pennsylvania played a leading role in developing programs for the developmentally disabled in 1853, when Philadelphia citizens established one of the first American institutions for the developmentally disabled, a private school called the Pennsylvania Training School for the Feeble-Minded. Id. at 15. Citizens in other states followed this example soon after-wards, establishing similar schools in their own states. Id. The Pennsylvania Training School initially depended on income from the families and wards of private-paying pupils. Id. at 62. After the Civil War, however, family and social disruption led to a growing number of applications to such institutions, which found themselves without the resources to meet the growing demand for their services. Id. at 62-63. The new superintendent of the Pennsylvania Training School, Dr. Isaac N. Kerlin, believed that postwar demands for the school could only be met with public funds, and he was successful at regularly obtaining those funds from state legislatures. See id. at 63. These early institutions began as relatively small centers, often located within the community, in which intensive training could be concentrated. See Halderman v. Pennhurst State Sch. & Hosp., 446 F.Supp. 1295, 1299 (E.D.Pa.1977) (citing Wolf Wolfensburger, The Origin and Nature of Our Institutional Models 24-56 (1975)). Their emphasis was on education, and they were viewed as temporary boarding schools, geared toward returning the individuals to their family or living group once appropriate skills were learned. Id. By the late nineteenth century, however, private schools were being replaced by gargantuan, state-managed asylums that were isolated from the community grew to be viewed as permanent residential facilities for the developmentally disabled and other perceived “deviants.” Id. 1299-1300. Typical of such asylums was Pennsylvania’s Pennhurst State School and Hospital, which “[s]ince its founding in 1908, [had] been overcrowded and understaffed.” Id. at 1302. By the 1960s, Pennhurst housed over 4,000 residents. Id. In the 1960s, large state asylums, such as Pennhurst, came under attack as inadequate modes of providing services to the developmentally disabled. Id.; Trent, supra, at 63. This attack was partly a reaction to the horrid conditions of state-run asylums and partly due to a new understanding that developmentally disabled individuals could benefit from placement in smaller community living arrangements (“CLAs”) were they could be normalized into society. See Halderman v. Penn- hurst State Sch. & Hosp., 555 F.Supp. 1144, 1148 (E.D.Pa.1983). A landmark in Pennsylvania’s provision of services to the developmentally disabled occurred when Pennsylvania passed the Mental Health and Mental Retardation Act of 1966, P.L. 96, § 406, codified at, 50 Pa. Cons.Stat. § 4101, et seq. (the “MH/MR Act”). The MH/MR Act provides the state and counties with the authority necessary to provide comprehensive services and care to the developmentally disabled. For example, the MH/MR Act provides that the responsibilities of the Department of Public Welfare include establishing an adequate number of health facilities to meet the needs of the mentally ill, coordinating efforts among counties and other agencies to ensure the quality of services offered to the mentally ill, providing funding for services, determining the type of program each facility will offer, and making sure the facilities are performing then-functions correctly. Id. §§ 4201-02. The MH/MR Act also provides that “local authorities ... shall establish a county mental health ... program for the prevention of mental disability, and for the diagnosis, care, treatment, rehabilitation and detention of the mentally disabled.” Id. § 4301(a). After its passage, the federal district court for the Eastern District of Pennsylvania played a prominent role in ensuring Pennsylvania’s compliance with the MH/MR Act. In Halderman, a case that spanned two decades, the late Judge Raymond J. Broderick ordered that Pennhurst be phased out and that its residents be integrated into local communities pursuant to the MH/MR Act. 446 F.Supp. at 1295. Today, as a result, Pennsylvania has successfully phased out the use of large institutions, such as the now-abandoned facilities as Pennhurst, and both manages and funds numerous community facilities that provide habilitation services to the developmentally disabled. See Halderman v. Pennhurst State Sch. & Hosp., 995 F.Supp. 534, 535 (E.D.Pa.1998) (discussing a special master’s findings that Pennsylvania has substantially complied its statutory mandate to provide developmentally disabled with habilitation, training, and care); see also Madison v. Resources for Human Dev., Inc., 233 F.3d 175, 178 (3d Cir.2000) (discussing Pennsylvania non-profit corporation that provides developmentally disabled individuals with community health centers, transportation services, and community living facilities and assistance through state and federal funding); Growth Horizons, Inc. v. Delaware Cty., 983 F.2d 1277, 1279 (3d Cir.1993) (discussing private Pennsylvania corporation that provides community living arrangements, through contract with Delaware County, to developmentally disabled individuals “in as normal an environment as possible”). In summary, the history of Pennsylvania’s provision of care, education, and other services to the developmentally disabled shows that, while Pennsylvania’s administration and funding of such services has grown with time, providing “care, education, and support” to developmentally disabled individuals has never been, and is not now, a traditional and exclusive government function. Cf. Leshko, 423 F.3d at 344 (holding that the fact that Pennsylvania had over time begun to administer aspects of the foster care system, previously performed privately, did not make the provision of foster care services an exclusive governmental function). That the provision of services to the developmentally disabled has evolved to become a public function does not make it a tradi tional and exclusive function of the state. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 841-42, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (holding that privately-operated school for maladjusted high school students, while serving the public, did not perform a task within the exclusive province of the state); Graham, 2002 WL 1608230, at *6 (holding that non-profit social service agency which provided support service to people affected by HIV did not perform an exclusively governmental function). In fact, the MH/MR Act recognizes that providing such services is traditionally a private role, requiring that “[wjhenever public funds are expended ... on behalf of a mentally disabled person, the governmental body expending such funds may recover the same from such person,” subject to certain restrictions. 50 Pa. Cons. Stat. § 4501. Also important to this decision is the fact that the care and habilitation of the developmentally disabled does not implicate a constitutional right. In Leshko, the Third Circuit distinguished care for foster children (held not to be state action) from the provision of medical care to inmates (held to be state action), on the basis that the former was a mandate of statutory creation while the latter was a constitutional obligation. 423 F.3d 337, 344-45 (citing West v. Atkins, 487 U.S. 42, 56, 108 5.Ct. 2250, 101 L.Ed.2d 40 (1988)). As the Third Circuit explained: Constitutional obligations on a state obviously are powerful evidence that the required functions are traditionally governmental, but here there are no such obligations.... [Sjtate-supervised foster care in Pennsylvania is a creature of statute, begun in 1901 under Pennsylvania’s Juvenile Act. Statutory duties of even such early vintage are not traditionally governmental. Id. (footnote omitted). The provision of community based social services to the developmentally disabled is a “creature of statute” of relatively late vintage at that, which began with the passage of the MH/MR Act of 1966. See also In re Schmidt, 494 Pa. 86, 429 A.2d 631, 634 (1981) (discussing statutory responsibilities of the state and county to provide “mental retardation services”). Like the provision of foster care, neither the federal Constitution nor the Pennsylvania Constitution requires that the state provide services to the developmentally disabled. Yet even if Pennsylvania had traditionally provided services to the developmentally disabled since its founding as a British colony, it still has never been Pennsylvania’s “exclusive” province to do so. As noted earlier, private families have cared for their developmentally disabled members since the earliest history of this country, and they continue to do so today. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 309, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (discussing ease of “profoundly retarded” plaintiff who lived with his parents in Philadelphia for the first 26 years of his life, and was only committed to a state facility after the death of his father, when his mother became unable to care for him). Indeed, even in the context of providing residential services, it is today the express policy of Pennsylvania that “a mentally retarded person shall not be determined to require involuntary residential placement unless the degree of retardation shows an inability to provide for the most basic personal needs and provision for such needs is not available and cannot be developed or provided for in the existing home or in the community in which the individual resides.” In re Schmidt, 429 A.2d at 634. It bears repeating that “[w]hile many functions have been performed by governments, very few have been exclusively reserved to the state.” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (emphasis added). Finally, the Court’s decision is in accord with other courts that have held that the provision of services to the developmentally disabled does not constitute a function that was traditionally and exclusively within the province of the state. See Mochan, 2007 WL 655604, at *4 (finding specifically that The Arc and MARC, Defendants in this case, are not engaged in activities traditionally or exclusively within province of the state); Sybalski v. Ind’t Group Home Living Program, Inc., 2007 WL 1202864, at *5 (E.D.N.Y. Apr.24, 2007) (holding that private home engaged in providing “custody, care and habilitation services to mentally retarded citizens” was not involved in a public function “traditionally and exclusively resrved to the state”); Dow v. Terramara, Inc., 835 F.Supp. 1299 (D.Kan.1993) (“[I]t cannot be said that providing services and housing to mentally handicapped adults has been traditionally the exclusive prerogative of the State.”). Dr. Schneider cites to Fialkowski v. Greenwich Home for Children, Inc., 683 F.Supp. 103, 105 (E.D.Pa.1987), in support of her argument that Defendants are state actors. In that case, the court found that the defendants acted pursuant to delegated statutory authority in providing residential services to mentally retarded citizens, and thus were acting as state actors when they negligently allowed one of their residents choke on his food. Id. Fialkow-ski is unavailing to Dr. Schneider for three reasons. First, here, there are no allegations that Defendants were providing residential services to developmentally disabled individuals who had been committed to their care. Rather, the allegations in this case are that Defendants merely provide “care, education, and support of developmentally disabled adults and children” within the community. Amend. Compl. ¶ 22; Leshko, 423 F.3d at 345^47 (noting that foster care services provided in a residential institution are more likely to constitute state action than those provided in private setting). Second, in Fialkowski, the court found that the defendants were acting pursuant to delegated statutory authority in providing residential services to the developmentally disabled. Here, Dr. Schneider maintains that Defendants are providing services within the traditional and exclusive province of the state, not that they are acting pursuant to delegated statutory authority. Third, in Fialkowski, the plaintiff was a developmentally disabled individual whose suit was related to the allegedly negligent provision of services to the disabled. Assuming arguendo that Defendants’ provision of services was within the traditional exclusive province of the state, Dr. Schneider’s suit is not related to the provision of those services. Rather, she brings a suit based on Defendants’ terminating her employment, based on actions unrelated to Defendants’ provision of services to the developmentally disabled. See Graham, 2002 WL 1608230, at *6 (holding that termination of an employee of a non-profit agency which provided support service to HIV patients was not state action where the state did not control or manage the agency’s workforce). Thus, the Court finds that Dr. Schneider has failed to allege that Defendants were state actors, as she must, to survive a challenge under Rule 12(b)(6) to her § 1983 claim. There is not “such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Leshko, 423 F.3d at 347 (quoting Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001)). 3. Fact-Specificity of the Inquiry Dr. Schneider also argues that the issue of whether a defendant is a state actor involves a highly fact-specific inquiry that cannot be decided on a motion to dismiss, but rather, must be decided through a summary judgment motion. See PL’s Mem. of Law at 5. Numerous courts, including this Court, have granted motions to dismiss section 1983 actions because the defendants were not state actors. See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (affirming grant of a motion to dismiss); Leshko, 423 F.3d at 337 (affirming grant of a motion to dismiss); Community Med. Ctr. v. Emerg. Med. Servs. of Ne. Pa., Inc., 712 F.2d 878 (3d Cir.1983) (affirming grant of a motion to dismiss); Mochan, 2007 WL 655604; Graham, 2002 WL 1608230; Klavan v. Crozer-Chester Med. Ctr., 60 F.Supp.2d 436 (E.D.Pa.1999) (Dalzell, J.); Ctr. for Bio-Ethical Reform v. Comcast-Spectacor, Inc., 1999 WL 601014 (E.D.Pa. Jul.29, 1999) (Kauffman, J.); Showell, 1997 WL 597897. Dr. Schneider’s argument might have merit if she presented to the Court how allowing her to take discovery might develop facts that would allow her to sufficiently allege that Defendants are state actors. However, she has made no such presentation. Accordingly, the Court will not hesitate to dismiss Dr. Schneider’s § 1983 claim. C. State Law Claim In addition to her § 1983 claim, Dr. Schneider has alleged violations of the Pennsylvania Whistleblower Act. Defendants urge the Court to decline supplemental jurisdiction if the § 1983 claim is dismissed. A district court may decline to exercise supplemental jurisdiction if it has dismissed all claims over which it has original jurisdiction. See E.E.O.C. v. Creative Playthings, Ltd., 375 F.Supp.2d 427, 432 (E.D.Pa.2005). The Third Circuit has instructed that “[i]f it appears that the federal claim is subject to dismissal ... the court should ordinarily refrain from exercising [supplemental] jurisdiction in the absence of extraordinary circumstances.” Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir.1976). Because the Court has decided to dismiss Dr. Schneider’s § 1983 claim, the only claim over which it had original jurisdiction, it will decline to exercise supplemental jurisdiction over the remaining state law claim. III. MOTION FOR LEAVE TO AMEND COMPLAINT

1126649-15602

PHILLIPS, Circuit Judge. In No. 3393 the facts are these: The Shibes are the owners of premises, commonly known as 1412 Freeman Avenue, Kansas City, Kansas. A two-room apartment on the first floor of such premises was occupied by A. Miller and his wife, as tenants from week to week. On July 9, 1946, Arthur Shibe personally served upon Miller a written notice „to terminate the tenancy on July 22, 1946. The rent was due on that date. The Millers did not vacate the premises. On July 27, 1946, the Shibes served upon Miller a three-day notice, in compliance with the laws of Kansas, that a peaceable entry and forcible detainer action would be filed against them. On August 1, 1946, the Shibes filed such action against the Millers in the City Court of Kansas City, Kansas. The cause came on for trial on August 7, 1946. Both the Shibes and Millers were represented by counsel at the trial, and John Clark, Junior Area Rent Attorney for the Office of Price Administration, appeared in behalf of the Area Rent Office. The City Court found that the Shibes had complied with the laws of Kansas, and that under such laws the Shibes were entitled to possession, and entered a judgment awarding them possession. Thereafter, the Office of Price Administration instituted proceedings in the United States District Court for the District of Kansas, seeking an injunction against the Shibes’ evicting the Millers from the apartment. The trial court denied the preliminary injunction. A judge of this court granted a temporary restraining order. The Administrator appealed from the order denying the temporary injunction. In No. 3403 the facts are these: The Darlington, Inc., is the owner of the Darlington Apartment Building situated in Denver, Colorado. Prior to June 30, 1946, C. B. King and his wife were tenants in an apartment in the building. The maximum rent for the apartment was $40 per month, which included the furnishing of cooking gas by the landlord. On July 5, 1946, Darlington served a notice on the tenants terminating the rental agreement on July 15, 1946, and demanding that the tenants leave the premises on. or before that date. The rental agreement contained the following provision: “Tenant agrees that upon failure to vacate in due time, upon rightful and legal notice from the Owner so to do, or upon abandonment, or in order to take possession of property above liened, Owner or its agent may reenter and take possession without suit, using such force as may be necessary for that purpose without liability, and without impairing any security or present or future right of action held by Owner for rent.” Under Colorado law, where a lease contains such a provision, the landlord may enter and remove the tenant upon covenant broken if he uses no unnecessary force to accomplish the purpose. Representatives of Darlington undertook.to evict the Kings upon the expiration of the notice period. King physically resisted eviction. On the morning of July 25, 1946, the maintenance man for Darlington found the valve in the gas line to the apartment leaking and in need of repairs, and turned off the gas. On August 6, 1946, the Administrator brought this action for a mandatory injunction restraining Darlington from decreasing or eliminating the services provided on the date determining the maximum rent applicable to the apartment and from removing or attempting to remove the Kings from the apartment. A temporary restraining order requiring Darlington to restore the gas service was issued on August 9, 1946, and pursuant thereto Darling-ton turned the gas on again. The restraining order was vacated and a preliminary injunction denied on August 20. Darling-ton, however, agreed to allow the gas to remain on until the decision on this appeal. The Administrator has appealed from the order denying the preliminary injunction. The Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., expired on June 30, 1946. By Public Law 548, approved July 25, 1946, it was extended to June 30, 1947. Section 18 of that Act in part provides: “Sec. 18. (1) The provision of this Act shall take as effect of June 30, 1946, and (2) • all regulations, orders, price schedules, and requirements under the Emergency Price Control Act of 1942, as amended * * * and the Stabilization Act of 1942, as amended, which were in effect on June 30, 1946, shall be in effect in the same manner and to the same extent as if this Act had been enacted on June 30, 1946, * * *: Provided further, That no act or transaction, or omission or failure to act, occurring subsequent to June 30, 1946, and prior to the date of enactment of this Act shall be deemed to be a violation of the Emergency Price Control Act of 1942, as amended, or the stabilization Act of 1942, as amended, or of any regulation, order, price schedule, or requirement under either of such Acts: * * 50 U.S.C.A.Appendix, § 901a note. It is clear from this section that Congress intended to make such Acts, and the Regulations which had been promulgated thereunder, retroactive to June 30, 1946, with the proviso that there should be no civil or criminal liability for any act, transaction, omission, or failure to act, occurring subsequent to June 30, 1946, and prior to July 25, 1946. It is clear that in both cases, the tenants, in the interim between June 30, 1946, and July 25, 1946, lost their right to continue in the occupancy of the leased premises under their leases and under state law. The applicable Regulations made effective from June 30, 1946, are set forth in the margin. It will be observed that, under such Regulations, the landlord, where there is an immediate compelling necessity, may recover possession of the housing accommodations for use and occupancy as a dwelling for himself, and that a purchaser may acquire possession of the housing accommodations, and that the landlord may evict the tenant for failure to pay rent, for the tenant’s refusal of access to the landlord, for violation of an obligation of his tenancy, for the commission of nuisance by the tenant, or for permitting the housing ac commodations to be used for an illegal or immoral purpose. . The standard laid down by the Act is fair and equitable rent, and where the rent fixed is not fair and equitable, the landlord has administrative remedies open to him. We must assume, therefore, that the maximum rentals fixed for the housing accommodations here involved are fair and equitable. Of course, we cannot pass on the validity of the Regulations per se. But we can pass on the validity of the Act of Congress which made 'the Regulations effective retroactively. Thé Act of July 25, 1946, was enacted by the Congress in the exercisé of its war power. The war power is a broad and comprehensive grant. It is “well-nigh limitless.” It embraces those powers necessary to maintain our national defense and security. It is essential to the preservation of our country as an independent nation and the perpetuity of our liberties. While the war power is subject to the limitations of the Fifth Amendment, the courts must guard against impairing its essential attributes or endangering the ability of the nation to maintain its defense and security and its status as a' free and independent state. Under the Regulations, unless the landlord seeks recovery of possession of the leased premises for use and occupancy as a dwelling for himself, ór a purchaser of the leased premises from the landlord seeks occupancy thereof for himself, the landlord must continue to rent to his former tenant although the latter’s lease has expired, his right to occupancy has expired, or he is subject to removal from the premises under state law, so long as the tenant pays the rent fixed by the Administrator and does none of the things affording ground for eviction under the provisions of the Regulations. Thus, it will be seen that the effect of the Regulations is to deprive the owner of the right of possession of the leased premises to which he would otherwise be entitled, except in case he desires possession for his own occupancy, or a purchaser thereof desires them for his own occupancy. For that deprivation, the Regulations provide for the payment of fair and equitable rent to the owner and afford protection to the owner’s interest against wrongful acts of the tenant. We do not see any material difference in cases where the Regulations operate retrospectively and where they apply prospectively to a tenant whose lease has expired, or who has otherwise lost his right to occupancy under the terms of the lease or of state law. In either case, the question is whether the Regulations deprive the landlord of his right of possession without due process of law and without just com pensation in violation of the Fifth Amendment. For the use of the housing accommodation, fair and equitable rent is just compensation. The due process guaranty of the Fifth Amendment demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. If the statute is an appropriate means to a permitted end, there is little scope for the operation of the due process clause. The Regulations here involved adequately protect the landlord’s interests. They are not unreasonable, arbitrary, or capricious, and they have a real and substantial relation to the object sought to be attained, namely, the protection of the national defense and security by preventing inflation and its consequences, and the making of housing accommodations available in defense-rental areas at non-inflationary rentals. Hence, we conclude that the Regulations do not deprive the landlord of his right of possession, without due process of law or without just compensation. Rent Regulation § 3 in part reads; “ * * * every landlord shall, as a minimum, provide with housing accommodations the same essential services, * * * as those provided on the date determining the maximum rent, * * May Darlington be required to restore the cooking gas service? It is suggested by counsel in No. 3403 that, under Colorado law, Darlington might lawfully have removed the doors and windows in the apartment, or even have tom down the apartment during the period between June 30, and July 25, 1946, and had it done so, it could not now be constitutionally required to restore the leased premises. Obviously, a requirement that would involve substantial outlays by Dar-lington, and for which it would receive no compensation, differs materially from the situation here presented. The turning on of the gas involves merely the opening of a valve in the supply line and the cost thereof, if any, to Darlington would be trivial. When applied to the facts here presented, to construe Regulation § 3 as applicable to a service discontinued between June 30, and July 25, 1946, would not, in our opinion, render the Act of July 25, 1946, unconstitutional. A law is not unconstitutional merely because it results in financial injury to a citizen where it is reasonably necessary to preserve important public interests. Neither is it unconstitutional because it preserves one interest over another if there is a preponderant public concern in the preservation of the one over the other. Here, the important national interest is the making available to tenants of housing accommodations in important defense-rental areas at non-inflationary rentals in furtherance of the national defense and security. Many of the lawful demands made on the citizen in the exercise of the war power result in financial loss to the citizen. Individual suffering and sacrifice are inevitable concomitants of war. Moreover, here the financial injury is nominal only and not substantial. The causes, are reversed and' remand.ed, with instructions to vacate the orders denying injunctive relief and to proceed further in accordance with the views herein expressed. Goshen v. People, 22 Colo. 270, 44 P. 503. Sections 6(a) and (b) of the Rent Regulations, which were made retroactive by the Act of July 25, 1946, in part provide: “§ 6. Removal of tenant — (a) Restrictions on removal of tenant. So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed fi’om any housing accommodations, by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any person attempt such removal or exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, * * * unless: “(1) Tenant’s refusal to renew lease. The tenant, who had a written lease or other written rental agreement, has refused upon demand of the landlord to execute a written extension or renewal thereof for a further term of like duration, or if the lease was for a term of less than one year but more than three months and was non-seasonal in character, for a term of not more than one year, for a rent not in excess of the maximum rent, but otherwise on the same terms and conditions as the previous lease or agreement, except insofar as such terms and conditions are inconsistent with this regulation; or “(2) Tenant’s refusal of access to landlord,. The tenant has unreasonably refused the landlord’s access to the housing accommodations for the purpose of inspection or of showing the accommodations to a prospective purchaser, mortgagee, or prospective mortgagee, or other person having a legitimate interest therein: * * * “(3) Violating obligation of tenancy or committing nuisance. The tenant (i) has violated a substantial obligation of his tenancy, other than an obligation to pay rent, and has continued, or failed to cure, such violation after written notice by the landlord that the violation cease, or (ii) is committing or permitting a nuisance or is using or permitting a use of the housing accommodations for an immoral or illegal purpose; * _ * * “(6) Occupancy, by landlord. The landlord owned, or acquired an enforceable right to buy or the right to possession of, the housing accommodations prior to the effective date of regulation (or prior to October 20, 1942 where the effective date of regulation is prior to that date, * * *),' and has an immediate compelling necessity to recover possession of such accommodations for use and occupancy as a dwelling for himself, or has served during the period of the war emergency in the armed forces of the United States and in good faith seeks possession for his own occupancy. & * * “(b) Administrator’s certificate — (1) Removals wot inconsistent icith Act or regulation. No tenant shall be removed or evicted on grounds other than those stated above unless, on petition of the landlord, the Administrator certifies that the landlord may pursue his remedies in accordance with the requirements of the local law. The Administrator shall so certify if the landlord establishes that removals or evictions of the character proposed are not inconsistent with the purposes of the Act or this regulation and would not be likely to result in the circumvention or evasion thereof. * * * “(2) Occupancy by purchaser. A certificate shall be issued authorizing the pursuit of local remedies to remove or evict a tenant of the vendor, for occupancy by a purchaser who has acquired his rights in the housing accommodations on or after the effective date of regulation (or on or after October 20, 1942 where the effective date of regulation is prior to that date, * * *), only as provided in this paragraph (b) (2) * * * »

1437411-15141

KENNEDY, Circuit Judge. Defendant Hassan Ibrahim Tabaja (“defendant”) was convicted of one count of aiding and abetting an international parental kidnapping in violation of 18 U.S.C. § 1204. The district court sentenced defendant to twenty-seven months of imprisonment. Defendant challenges his conviction and sentence on two distinct grounds. For the reasons explained below, we AFFIRM the judgment of conviction and defendant’s sentence. I. Background Defendant is the brother of Ali Tabaja (“Ali”), who was formerly married to Zohra Abbiss (“Zohra”). Sam Ali Tabaja (“Sam”) was born of this union. Ali and Zohra ultimately divorced. Pursuant to the divorce decree, Zohra received physical custody of Sam while Ali received reasonable visitation with him. Zohra and Ali agreed on an arrangement whereby Ali would take Sam on the weekends. For some time following the divorce, defendant and Ali shared a residence in Detroit, Michigan. Also during this time. Ali and Zohra were having frequent and on-going disputes, of which defendant was well aware. On Friday, January 10, 1997, Ibrahim Tabaja, Ali and defendant’s father, wire-transferred $4,979 from Beirut, Lebanon, to a joint bank account in Ali’s and defendant’s names. That same day, Ali withdrew $900 from the account, and picked up Sam for his weekend visitation. On Saturday, January 11, 1997, defendant drove Ali and Sam to the Detroit Metropolitan Airport for a flight to Beirut, Lebanon. Later that evening, Zohra twice called Ali and defendant’s residence to speak with Sam. On each occasion, defendant lied about Sam’s whereabouts. Zohra first learned about Sam’s abduction when Ali called Zohra from Lebanon at approximately 4:00 pm on Sunday, January 12, 1997. After learning about Sam’s kidnapping, Norma Bally (“Norma”), Zohra’s sister, called defendant. Defendant told Norma: “[T]he baby is in Lebanon with Ali and you guys will never see him again.” At approximately 9:00 pm that night, Zohra, Norma, and Steven Sabbota (“Sabbota”), their then-prospective in-law, went to Ali and defendant’s residence. Before slamming the door in their faces, defendant told them that Ali would not be returning with Sam from Lebanon and that Zohra got what she deserved. Some time later that evening. Zohra reported the kidnapping to the Ferndale Police Department. II. Sixth Amendment Claim Defendant appeals his conviction and sentence on the ground that his trial counsel rendered ineffective assistance in violation of the Sixth Amendment. The theory of the defense was that, at the time that defendant aided Ali’s departure with Sam to Lebanon, defendant believed that it was to be a “legitimate father-son vacation of short duration.” In particular, de fendant, the sole defense witness, testified that Ali had told defendant that he had Zohra’s permission to take Sam to Lebanon to attend their brother’s engagement party, and that he would return with Sam to the United States shortly thereafter. Defendant contends that his trial counsel provided uneonstitutionally-ineffective assistance when he failed to interview and to present witnesses who could have corroborated that this was Ali’s expressed intention in departing for Lebanon. Defendant claims that he informed trial counsel of these witnesses’ identities and whereabouts. However, defendant concedes that the record demonstrates neither the identities nor the proposed testimony of these witnesses. Alternatively, defendant contends that trial counsel rendered unconstitutionally-ineffective assistance when he failed to introduce into evidence the motor vehicle registration for the automobile that Ah purchased and registered in his name immediately before his trip to Lebanon. Defendant maintains that this evidence would have shown that Ali had intended to return to the United States with Sam rather than remain in Lebanon indefinitely, thereby corroborating defendant’s defense that he had believed this to be true at the time that he aided Ali’s departure with Sam to Lebanon. Defendant underscores that, had he believed that Ah would not be returning to the United States, he would have had the vehicle’s registration transferred into his name. As the Supreme Court has recognized, it is preferable for a litigant to bring a Sixth Amendment claim of ineffective assistance of counsel on collateral review in a motion under 28 U.S.C. § 2255 than to bring such a claim on direct review. Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003); accord United States v. Aguwa, 123 F.3d 418, 423 (6th Cir.1997). The Supreme Court reasoned: When an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ... (1984), a defendant claiming ineffective counsel must show that counsel’s actions were not supported by a reasonable strategy and that the error was prejudicial. The evidence introduced at trial, however, will be devoted to issues of guilt or innocence, and the resulting record in many cases will not disclose the facts necessary to decide either prong of the Strickland analysis. Id. Consequently, appellate courts generally will not consider claims of ineffective assistance of counsel on direct review. See Aguwa, 123 F.3d at 423. Because the record here does not afford an appropriate basis upon which to deviate from this customary practice, we decline to consider defendant’s Sixth Amendment claim on direct review. We also decline defendant’s request that we remand the case to the district court for an evidentiary hearing into the factual basis underlying defendant’s Sixth Amendment claim so as to enable us to decide that claim’s merits. Defendant’s remedial avenue for his alleged Sixth Amendment violation is a § 2255 post-conviction proceeding. III. Evidentiary Challenges During the trial, the government called Kenneth Hunt (“Hunt”), a former Ferndale police officer who, on January 12, 1997, had responded to Zhora’s call to the Ferndale Police Department concerning the kidnapping. After refreshing his recollection with his police report of the encounter, Hunt testified that, when he arrived at the scene. Zhora, Norma, and their mother, Souad Abbiss (“Souad”), were present. Hunt further testified that all three of the women were visibly upset and distraught. From his police report, Hunt read into the record the following statement from Norma: Around six p.m. that night, Norma called ... [defendant], asked him where Ali and Sam were because Ali had not brought Sam home at the three o’clock meeting as he was supposed to. He told her that Ali had taken Sam back to Lebanon and that they were not coming back and then he hung up on her. Although Hunt’s police report also contained statements from Zohra and Souad. Hunt was not questioned about these other statements nor was the balance of his police report admitted into evidence. Thus, the record belies defendant’s contention on appeal that Hunt’s entire police report, including Zohra and Souad’s statements, was admitted into evidence. We, therefore, consider only defendant’s challenges to the admission of Norma’s statement from the police report. Defendant challenges the admission of this evidence under both Federal Rules of Evidence 803(2) and 403. Because defendant raises these specific challenges for the first time on appeal, we review only for plain error. See United States v. Vincent, 20 F.3d 229, 234 (6th Cir.1994). Plain error requires: 1) an error; 2) that is plain; 3) that affects substantial rights; and 4) that seriously affects “the fairness, integrity, or public reputation of the proceedings.” Id. We review a district court’s evidentiary rulings for an abuse of discretion. General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Our case law on whether we review rulings on hearsay for an abuse of discretion or de novo is inconsistent. Compare United States v. Wright, 343 F.3d 849, 865-66 (6th Cir.2003) (reviewing a hearsay ruling for an abuse of discretion), and United States v. Hilliard, 11 F.3d 618, 619 (6th Cir.1993) (reviewing a ruling under Rule 804(b)(3) for an abuse of discretion), with Fisher v. City of Memphis, 234 F.3d 312, 316 (6th Cir.2000) (holding that, although we generally review evidentiary rulings for an abuse of discretion, we review de novo evidentiary rulings on hearsay and citing United States v. Johnson, 71 F.3d 539, 543 (6th Cir.1995)), and Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th Cir.1999) (relying upon General Elec. Co., 522 U.S. at 141, in reviewing a hearsay evidentiary ruling for an abuse of discretion despite questioning its underlying rationale and despite “well-settled precedent” holding that we review such rulings de novo). However, we need not join this dispute. Because an abuse of discretion occurs when a lower court “improperly applies the law or uses an erroneous legal standard.” United States v. Heavrin, 330 F.3d 723, 727 (6th Cir.2003), our analysis of whether a particular statement is hearsay is the same under either a de novo or abuse-of-discretion standard. Even assuming the de novo standard of review were to apply, the district court did not err in determining that Norma’s statement to Hunt fell within Federal Rule of Evidence 803(2) as an exception to Rule 802’s general ban on hearsay. Known as the “excited utterance” exception. Federal Rule of Evidence 803(2) exempts from exclusion under the hearsay rule “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” This exception rests upon the assumption “that a person under the sway of excitement precipitated by an external startling event will be bereft of the reflective capacity essential for fabrication and that, consequently, any utterance he makes will be spontaneous and trustworthy.” Haggins v. Warden, Ft. Pillow State Farm, 715 F.2d 1050, 1057 (6th Cir.1983) (quoting 4 J. Weinstein & M. Berger, Weinstein’s Evidence 11803(2)[01] at 803-79 (1981)) (internal quotation marks omitted). For a hearsay statement to be admissible as an excited utterance under Rule 803(2), the following three conditions must exist: 1) the statement must relate to an event or condition startling enough to cause nervous excitement; 2) the individual must have made the statement before there was time to contrive or to misrepresent that statement; and 3) the individual must have made the statement while still experiencing the stress or shock of the excitement that the event or condition caused. See Fed.R.Evid. 803(2); Haggins, 715 F.2d at 1057. Defendant does not dispute that Norma’s statement to Hunt related to an event startling enough to cause Norma to suffer much excitement and distress-her learning that Ali had kidnapped her nephew. Defendant also does not dispute that Norma made the statement to Hunt while she was visibly upset and distraught and, thus, still seemingly undergoing the stress of the startling event. Rather, defendant argues that, because the record does not clearly establish the length of time between when Norma first learned of the kidnapping and when she made the contested statement to Hunt, the record fails to demonstrate that Norma made that statement before there was time for her to have contrived or misrepresented it. At the time that the district court admitted into evidence Norma’s statement from Hunt’s police report, the record revealed only that: 1) Souad had last seen Sam on the afternoon of Friday, January 10, 1997, when Ali had picked him up for his weekend visitation; 2) On Sunday, January 12, 1997, Norma had called defendant to inquire into Sam’s whereabouts at 6:00 pm; 3) Also on Sunday, Zohra, Norma, and Sabbota had gone to defendant’s residence to ask about Sam’s whereabouts at approximately 9:00 pm; and 4) On that same evening, Norma had made the statement to Hunt sometime between 9:00 pm and the end of Hunt’s shift. The' record, as developed at that point, did not remove the possibility that the kidnapping actually occurred on Friday afternoon soon after Ali picked up Sam for weekend visitation and that Nor ma learned of the kidnapping shortly thereafter. Such a factual scenario would have given Norma sufficient time from the startling event until when she gave her statement to Hunt to have fabricated or manipulated that statement. See United States v. Winters, 33 F.3d 720, 723 (6th Cir.1994) (affirming the district court’s finding that a statement made two days after the startling event did not qualify as an excited utterance because it was a result of conscious reflection). However, the entire record demonstrates that, on January 12, 1997, Norma learned from Zohra that Ai had kidnapped Sam sometime between 4:00 pm — the time that Zohra learned about it — and 6:00 pm — the time that Norma called defendant to confirm Sam’s whereabouts. The record also reveals that Norma, in a highly distraught and frantic state, made that statement to Hunt sometime between 9:00 pm — the time that Zohra, Norma, and Sabbota arrived at defendant’s house to question him about Sam’s whereabouts— on that same day and the time at which Hunt’s shift ended. While the record does not clearly establish the exact time interval between the startling event and the contested statement, it does demonstrate that this interval, at its outermost, could not have exceeded eleven hours. As this Court has affirmed, even “where the time interval between the event and the statement is long enough to permit reflective thought,” evidence that the speaker “still appeared nervous or distraught and that there was a reasonable basis for continuing emotional upset will often suffice” to demonstrate that the statement was not, in fact, a product of reflection. Haggins, 715 F.2d at 1058 (quoting McCormick’s Handbook of the Law of Evidence § 297 at 705-06 (2d ed.1972)) (internal quotation marks omitted). Even assuming that the time interval between the startling event and when Norma made the contested statement to Hunt was eleven hours and long enough for Norma to have contrived that statement, it was, nevertheless, reasonable to conclude that Norma’s excited emotional state at the time that she made that statement persisted from the time that she had learned about Sam’s kidnapping due to the devastating nature of that information. Aternatively, even if the district court had erred in admitting Norma’s statement to Hunt as an excited utterance under Rule 803(2), any such error did not affect defendant’s substantial rights. Norma herself later testified that defendant had, indeed, told her that Ai had taken Sam to Lebanon and that they would never see Sam again. Thus, the admission of Norma’s statement to Hunt merely corroborated admissible evidence. The district court’s admission of Norma’s statement to Hunt under Rule 803(2) survives plain error review.

4164115-8332

MEMORANDUM OPINION AND ORDER SCOTT REED, District Judge. On October 4, 1978, the plaintiff, Ingersoll-Rand Financial Corp., loaned the Wells Coal Co., Inc. $1,087,337.72. This loan was secured by mining equipment listed in Equipment Schedule “A” of the Security Agreement. The plaintiff alleges that this loan also was secured by the corporate and individual guarantees of the defendants. On November 8,1978, a default judgment was entered against defendant Owl’s Nest Coal Co., Inc. The judgment was for the amount of the loan plus costs and attorney’s fees of this action, subject to a credit for the amount of the net proceeds from the sale of the repossessed equipment. On January 29, 1980, plaintiff moved for summary judgment against Electro Coal, Inc., H&W Trucking Co., Inc., and Sara J. Wells. This motion was supplemented on February 19, 1980, by a second motion for summary judgment which added defendants Marvyn and Grace Hamilton. The initial issue is whether this Court has jurisdiction over the instant case. In the original complaint, the plaintiff alleged that the individual plaintiffs were residents, rather than citizens, of Kentucky. 28 U.S.C. Section 1332. This defect was corrected in the amended complaint filed November 8, 1979. No further question concerning the complete diversity of the parties remains. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). There is, however, still an issue of whether the amount in controversy requirements of the general federal diversity jurisdiction statute have been satisfied. 28 U.S.C. Section 1332. The matter in controversy must exceed $10,000, exclusive of interest and costs. 28 U.S.C. Section 1332(a). Several of the defendants have asserted that the jurisdictional amount requirement has not been met. The defendants claim that until the disposition of the collateral and the final accounting for it have been completed, the amount in controversy is unclear, and may not exceed $10,-000. The amount allegedly due to the plaintiff, however, need not be known exactly at the beginning of the case. Also, it need not be absolutely certain that the amount at stake will turn out to be more than $10,000. The standard is that, The sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. St. Paul Indemnity Co. v. Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). The plaintiff’s ilaim, made in good faith, was for more than $1,000,000, far in excess of the statutory requirement. Unless it appears that there is some legal bar to plaintiff collecting more than $10,000, should it prevail in a trial of the facts, this Court has jurisdiction. Defendants have suggested both that 1) they are entitled to the benefit of the net proceeds of the sale of the collateral as a credit against the amount of the loan and 2) that proper disposition of the collateral is a precondition to relief on the guarantee. Plaintiff claims that its rights to pursue judgment on the guarantee and to dispose of the collateral are separate and cumulative. The Court need not decide what the effect upon its jurisdiction would be if the deficiency remaining after disposition of the collateral were $10,000 or less. On the record presently before the Court it is clear that the amount in contention, after credit for the net proceeds of the sale of the collateral, exceeds $10,000. The plaintiff’s remedies upon default include repossession and suit. The plaintiff’s pursuit of one does not preclude the concurrent pursuit of the other. Ky.Rev.Stat. 355.9-501(1). There is some language by the Kentucky Court of Appeals which suggests that the proper disposal of repossessed collateral is a precondition to suit for any remaining debt. In Cox Motor Car Co. v. Castle, 402 S.W.2d 429 (Ky.1966), the Court noted that, “Having repossessed the truck, Cox was required to liquidate it at reasonable public sale, as a condition of seeking further recovery from Castle, and Castle’s obligation became limited to whatever deficiency remained after such a sale.” Cox, supra, at 432. However, in the light of the statutory language and the weight of critical comment this sentence must be interpreted narrowly. See Comment, Ky.Rev.Stat.Ann. Section 355.9-501(1) (Baldwin); 39 Marq.L.Rev. 246, 266. Thus, we construe the language in Cox to hold only that once a partial recovery is made by repossession the amount recoverable on judgment is limited to any deficiency. This is in conformity with the equitable policy of avoiding multiple recovery. This Court has jurisdiction over this action and the plaintiff’s motion for summary judgment is properly before the Court. There does not appear to be any genuine issue concerning the default of the Wells Coal Co. The guarantees, if signed by defendants, provide a proper basis for suit by plaintiff. See discussion of Ky.Rev.Stat. 355.9-501(1), supra. Unless some factual issue remains unresolved, summary judgment against defendants should issue. The standard for summary judgment is found in Fed.R.Civ.Proc. Rule 56. It states, in relevant part, that The judgment sought 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. Fed.R.Civ.P. 56(c). If there is a disputed factual issue before the Court, it should not be resolved upon motion for summary judgment. Lashlee v. Sumner, 570 F.2d 107 (6th Cir. 1978). Unless otherwise resolved by the parties, resolution should await the decision of the finder of fact at trial. Defendants Electro Coal, Inc., H&W Trucking Co., Inc., Mervyn Hamilton and Grace Hamilton have claimed that they did not sign the guarantee proffered by plaintiff. They assert that the only guarantee they signed on behalf of Wells Coal Co. was to secure an airplane. The parties maintain diametrically opposed positions concerning the coverage of the guarantees for the loan to Wells Coal Co. Only a determination of the credibility of the parties will settle the dispute on this point. Where an issue as to material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate. Notes of Advisory Committee on 1963 Amendment to Rule 56, Federal Rules of Civil Procedure, quoted in Willetts v. Ford Motor Co., 583 F.2d 852, 855 (6th Cir. 1978). This case accordingly is inappropriate for summary judgment as to these defendants. See also 10 C. Wright & A. Miller Section 2712, at 384. The plaintiff has emphatically insisted on the clear liability of the defendants. The motion for summary judgment concerning four of the defendants is being denied solely on the basis of those defendants’ affidavits stating that they did not sign the guaranty agreements submitted by the plaintiff. It is relatively rare that a financial institution switches the signature of an individual or corporation from one document to another. The Court is therefore constrained to remind the four defendants and their attorneys of the sanctions for the proferring of sham or dilatory affidavits. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt. Fed.R.Civ.P. 56(g). Defendant Sara J. Wells in her response to plaintiff’s motion for summary judgment relied not upon a denial that she signed the guarantee in question, but rather upon her construction of the requirements of Ky.Rev.Stat. 355.9 and Cox, supra. The Court has rejected this construction of the statute, and finds no genuine issue as to any material fact in the claim against Sara J. Wells. Accordingly, the plaintiff’s motion for summary judgment against her will be granted.

3866377-4955

PER CURIAM. Wanda Thomas (“Thomas”) appeals from a final decision of the Merit Systems Protection Board (“MSPB” or “Board”). The Board affirmed the Office of Personnel Management’s (“OPM’s”) denial of disability retirement benefits under the Federal Employees Retirement System (“FERS”), 5 U.S.C. § 8451. See Thomas v. Office of Pers. Mgmt., No. AT-831E-08-0086-1-2 (M.S.P.B. Dec. 2, 2008) (“Thomas II”). We affirm. BACKGROUND Thomas began working for the Department of the Army (“Army”) on October 24, 2002. Effective October 2, 2005, Thomas was demoted from the position of Supervisory Management Analyst, General Schedule 12 (“GS-12”), to Management Analyst, GS-9, due to her alleged failure to successfully complete a one-year supervisory probationary period for the GS-12 position. She never reported for duty in the GS-9 position. Effective July 21, 2006, the Army removed her from civilian service for misconduct, namely, her failure to meet attendance requirements for the GS-9 position. Thomas filed for disability retirement benefits in January of 2007. On April 25, 2007, OPM wrote Thomas a letter, requesting that she provide additional medical information to establish that her service deficiencies were the result of a disabling medical condition. Thomas failed to provide the requested information, and OPM denied benefits on July 5, 2007. After Thomas requested reconsideration, OPM affirmed its earlier decision on October 4, 2007, again noting Thomas’ failure to supply the requested additional medical documentation. Thomas then appealed to the Board. In an initial decision dated July 31, 2008, an Administrative Judge (“AJ”) affirmed OPM’s decision, concluding that Thomas had not introduced sufficient evidence to establish her entitlement to disability retirement benefits under FERS. Thomas v. Office of Pers. Mgmt., No. AT-831E-08-0086-I-2 (M.S.P.B. July 31, 2008) (“Thomas 7”). On December 2, 2008, the Board denied Thomas’ petition for review, and the initial decision became the final decision of the Board. Thomas timely petitioned for review in this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1). DISCUSSION The scope of our review in an appeal from a Board decision arising out of an OPM disability determination is very narrow. See Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985). We must affirm the Board’s decision unless “there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error ‘going to the heart of the administrative determination.’ ” Id. (citations omitted). Pursuant to 5 U.S.C. § 8451(a)(1)(B), an employee is only entitled to FERS disability if she was unable “to render useful and efficient service in the employee’s position” prior to her removal from federal service due to a disease or injury. Thomas had the burden to prove by a preponderance of the evidence that she “had a medical condition that was incompatible with either useful and efficient service or retention in [her] position.” Thomas I, slip. op. at 6 (citing Gometz v. Office of Pers. Mgmt., 69 M.S.P.R. 115, 121 (1995); 5 C.F.R. § 844.103(a)(2)); see also 5 C.F.R. § 1201.56(a)(2); § 844.103(a). The Board observed that Thomas claimed she was debilitated to the point of being unable to perform useful and efficient service in the GS-9 position due to “Diabetes; Depression; Agoraphobia; Hypertension; High Cholesterol; Morbid Obesity; Cholecys-tectomy; Angina; Asthma; Back Pain; Fibromyalgia; Nerve Loss; Right and Left Knee Pain; Migraines; Hysterectomy; Enlarged Thyroids; Blindness In Left Eye; Amblyopia; Hearing Loss; Shingles; and [Incontinence].” Thomas I, slip. op. at 2. After considering the objective and subjective evidence of Thomas’ disability, as well as the position description for the GS-9 position, the Board found “that the totality of the evidence is insufficient to establish whether the appellant is unable to perform useful and efficient service in the position.” Id. at 7. The Board further noted that Thomas had not applied for disability retirement until after she had been removed for misconduct, which detracted from the force of her application. Id. at 8. Thomas contends that the Board erred by failing to consider her mental, physical, and personal problems and by excluding certain evidence. The Board explicitly did consider Thomas’ mental and physical problems. See id. at 7-11. The excluded evidence did not relate to her medical condition. To the extent that Thomas disagrees with the weight the MSPB gave to the evidence, reviewing the weight of the evidence or the factual underpinnings of the MSPB’s decision is beyond our limited jurisdiction. Lindahl, 470 U.S. at 791, 105 S.Ct. 1620; Davis v. Office of Pers. Mgmt., 470 F.3d 1059, 1060-61 (Fed.Cir.2006); Licausi v. Office of Pers. Mgmt., 350 F.3d 1359, 1361 (Fed.Cir.2003).

4126300-9113

MEMORANDUM Wilfred Fields appeals the district court’s grant of summary judgment for Riverside Cement Company (“RCC”) and Paper Allied Industrial Chemical & Energy Workers, Local 80192 (“Union”) on all claims. Reviewing the district court’s decision de novo, Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc), we reverse as to Fields’s race discrimination, retaliation, and wrongful discharge claims against RCC, and affirm as to all other claims. 1. Title VII Race Discrimination Claim Against RCC We reverse the district court on Fields’s claim against RCC for racial discrimina tion under 42 U.S.C. § 2000e-2(a)(l). Fields has adduced sufficient evidence to create a triable issue of fact regarding RCC’s dissimilar treatment of similarly situated non-black employees, the only element of his prima facie case RCC challenged. See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir.2004) (reciting McDonnell Douglas burden shifting test and noting that plaintiffs need provide “very little” evidence to establish a prima facie ease of discrimination at summary judgment). Fields submitted evidence that, if credited, establishes that RCC did not treat Chenard and Fields similarly when investigating serious accusations leveled against each of them, or in meting out punishment. See Vasquez v. County of L.A., 349 F.3d 634, 641 (9th Cir.2004) (as amended) (“[Ijndividuals are similarly situated when they have similar jobs and display similar conduct.”). When Fionda complained about her confrontation with Fields, Phillips conducted a cursory, one-sided investigation before suspending Fields. Although Phillips immediately spoke with Fionda about the incident, there is no evidence that anyone interviewed Fields to get his side of the story. Moreover, Phillips did not interview either Nipper or Puckett, both of whom Phillips could have reasonably expected to have information about the altercation given Phillips’s inquiry about possible surveillance footage. Based on this limited investigation, which ultimately relied solely on Fionda’s rendition of events, Phillips suspended Fields and took away his lead man role. Conversely, RCC carefully investigated when Fields accused Chenard of various breaches of plant rules, such as failing to wear safety glasses and taking excessive breaks. In response to each of Fields’s accusations, supervisors promptly took steps to determine if Chenard had violated the rules, and either determined that Fields’s complaints were unfounded or subjected Chenard to discipline short of suspension. Unlike when Fionda accused Fields of confronting her and calling her a racist, however, when Fields complained that Chenard had made a death threat, RCC did not respond by immediately disciplining Chenard. Fields testified in his deposition that he first reported the threat to supervisors in May 2000. RCC waited over four months to conduct any investigation. When Phillips did look into the death threat allegation, he did not speak with Fields about it, or about the truth of accusations Savedra and Sylvia had made against Fields. Rather, Phillips immediately suspended Fields pending an investigation, even though it was Chenard who had been accused of making a death threat. Only after suspending Fields did Phillips interview Chenard and the lab technicians. On the basis of this much more thorough investigation, Phillips cleared Chenard of misconduct and recommended Fields be terminated, which he was. In sum, RCC relied exclusively on the accounts of non-black employees when they made accusations against Fields, performing next to no investigation to confirm those accounts and failing to even ask Fields his side of the story before suspending, demoting and terminating him. When Fields accused Chenard of violating plant rules, RCC carefully investigated Chenard’s behavior and either cleared him or lightly disciplined him. But when Fields reported that Chenard had made a death threat, RCC discounted the accusation and suspended Fields while Phillips performed a thorough investigation that cleared Chenard and culminated in Fields’s termination. This evidence of dif ferential treatment of similarly situated workers is sufficient to meet Fields’s prima facie burden at summary judgment. See Peterson, 358 F.3d at 603. Fields has also adduced evidence that RCC’s proffered non-discriminatory reason for its actions, enforcing plant rules, was pretextual. The evidence showing that RCC treated similarly situated non-black employees more favorably than black employees is itself probative of a discriminatory motive. See Vasquez, 349 F.3d at 641; Gerdom v. Cont’l Airlines, Inc., 692 F.2d 602, 609 (9th Cir.1982) (en banc). This evidence is bolstered by Fields’s deposition testimony that Phillips twice poked him in the chest and called him “boy.” In addition, Fionda, an Administrative Supervisor, responded to Fields’s complaints of discrimination by calling him a “troublemaker” who was “always complaining about black and white things” and making “black complaints” to her. She also disparaged Fields for complaining years earlier after witnessing RCC workers dressed like the Ku Klux Klan burning a cross and chanting “KKK” while marching around the plant. This evidence could be interpreted by a jury as condoning such racially charged expression, and is probative of pretext because Fionda, while not a decisionmaker herself, precipitated the suspension, demotion, and termination decisions. See Vasquez, 349 F.3d at 641 (requiring evidence of a “nexus” between non-decisionmaker’s comments and adverse employment action). Fionda reported the September 5, 2000 confrontation with Fields to Phillips, who then relied exclusively on her version of events in deciding to suspend and demote Fields. The Fionda/Fields altercation also factored into RCC’s decision to suspend and terminate Fields a month later. Accordingly, we conclude that Fields has raised a triable issue of fact as to his Title VII race discrimination claim against RCC. 2. Title VII Retaliation Claim Against RCC We also reverse the district court’s dismissal of Fields’s retaliation claim against RCC. “To establish a prima facie case of retaliation, an aggrieved employee must show that (1) he has engaged in statutorily protected expression; (2) he has suffered an adverse employment action; and (3) there is a causal link between the protected expression and the adverse action.” EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 586 (9th Cir.2000) (internal quotation marks omitted). Once a plaintiff establishes this prima facie case, the McDonnell Douglas burden shifting analysis applies. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir.2000). Fields has established a prima facie case of retaliation. Fields informed his supervisors that he was planning to file a racial harassment complaint with the California Department of Fair Employment and Housing (“DFEH”) and the EEOC, which constitutes protected activity. See EEOC v. Luce, Forward, Hamilton, & Scripps, 303 F.3d 994, 1007 (9th Cir.2002). He also made numerous complaints to his superiors about racial harassment and discrimination, including his complaint to Fionda about the company’s alleged differential treatment of collect phone calls from white and black workers. Fields’s suspensions, demotion, and termination constitute adverse employment actions. Moreover, we may infer causation from the extremely close temporal proximity of each adverse action to Fields’s complaints. See Henderson, 217 F.8d at 1244; Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987). Fields was suspended and demoted the same day he complained about the racist collect call policy to Fionda, and was suspended and fired two hours after he told Sylvia and Savedra that he intended to file a claim with the EEOC and the DFEH. Finally, Fields has adduced sufficient evidence of pretext. Fionda’s comments disparaging Fields for his repeated complaints of discrimination suggest RCC was attempting to minimize racial problems. RCC then conducted a one-sided investigation and ultimately suspended and demoted Fields based solely on Fionda’s version of events. The Fionda/Fields incident also factored into RCC’s later decisions to suspend and fire Fields. A reasonable jury could infer that this chain of events, triggered by Fields’s complaints of racism that were met with Fionda’s explicit disapproval and discouragement of such complaints, bears the mark of retaliation for protected activity rather than legitimate enforcement of plant policies. Because Fields has adduced sufficient evidence to defeat summary judgment on his retaliation claim against RCC, we reverse the district court. 3. Termination in Violation of Public Policy Claim Against RCC We also reverse on Fields’s wrongful discharge claim, as the existence of a triable issue of fact as to Fields’s Title VII claims necessarily raises a triable issue as to his termination in violation of public policy claim. See Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1287 n. 11 (9th Cir.2001). 4. Title VII Harassment Claim Against RCC

5618999-12421

MEMORANDUM WANGELIN, Chief Judge. This habeas action is before the Court following a remand from the Eighth Circuit Court of Appeals. Thomas v. Wyrick, 622 F.2d 411 (8th Cir. 1980). Petitioner Charles Lee Thomas, a Missouri state prisoner, was convicted of second degree murder in the Circuit Court of St. Charles County, Missouri. On July 30,1979, he filed a petition for a writ of habeas corpus in this Court under 28 U.S.C. § 2254. He alleged that his state conviction is constitutionally infirm because the trial court violated his right to have character witnesses testify in his behalf because their identities had not been disclosed earlier in the proceedings. The respondent warden of the Missouri State Penitentiary argued that petitioner had failed to exhaust his available state court remedies. 28 U.S.C. § 2254(b) and (c). This Court agreed and on November 27, 1979, dismissed the action without prejudice. On appeal the Court of Appeals agreed that petitioner had failed to exhaust his available state court remedies, but required this Court to retain jurisdiction while petitioner pursued his post-conviction relief under Missouri Supreme Court Rule 27.26 in a proceeding then pending in the state circuit court. On October 15, 1980, a hearing was held in the Circuit Court of St. Charles County on petitioner’s Rule 27.26 motion. In a written opinion issued on February 20,1981, the circuit court denied relief. On March 12, 1981, petitioner Thomas filed a motion in this Court for the respondent to show cause why his federal habeas proceedings should not be reinstated and a hearing granted. On May 19, 1981, the respondent warden advised the Court that on March 5, 1981, petitioner filed a notice of appeal to the Missouri Court of Appeals from the denial of the Rule 27.26 relief. That appellate proceeding is still pending. The Court has been informed by the Missouri Attorney General’s Office and by counsel representing petitioner in the state courts that the petitioner’s appellate brief is due on August 25, 1981. The state’s brief will be due thirty days thereafter. According to petitioner’s counsel, oral argument will likely be heard by the Missouri Court of Appeals in its spring 1982 term and a ruling thereafter. If appellate relief is denied, petitioner will likely appeal to the Supreme Court of Missouri. Thus, it appears that a final determination of petitioner’s federal post-conviction claim by the state courts will not occur soon, Because the instant federal habeas petition has been pending since 1979, this Court believes it appropriate to decide the federal habeas claim on its merits at this time. Petitioner alleges he was denied a fair trial, because he was not allowed to have certain witnesses testify in his behalf. Petitioner’s prosecution began on July 29, 1976, with the filing of an information charging him with murder. Also on July 29, 1976, the state filed written requests for the disclosure of evidence under Missouri Supreme Court Rules 25.31 (which sets the time periods for filing and responding to the requests), 25.34 (which describes the categories of information the defendant is required to provide the state upon its request), 25.36 (which describes how the disclosure is to be made), and 25.37 (which provides for a continuing duty to disclose). Among the categories of information called for by the state’s request was: 2. The names and last known addresses of persons other than defendant, who the defendant intends to call as witnesses at any hearing or trial, together with their written or recorded statements, and existing memoranda reporting or summarizing part or all of their oral statements. (Resp.Exh. A, 8-A) On September 21, 1976, petitioner Thomas filed a similar request for information. (Id., 9) On November 4, another similar request for discovery by the defendant was filed. (Id., 13) In the proceedings held on that date the Court ordered defendant to comply with the state’s evidentiary request within fifteen days. Defense counsel did not object to this order. (Id., 17-18) Not until January 3, 1977, the day before trial, did defense counsel indicate that he wished to call several character witnesses. The name of one of these witnesses was given to the prosecutor who objected to the defendant being allowed to call these witnesses. In response to the prosecutor’s objection, defense counsel indicated that when the Court order was originally entered, the defendant had no intention of calling any witnesses except himself. However, a “tentative” decision was made to call character witnesses and he so advised the prosecutor “by means of a stray comment” the week before trial. Defense counsel continued: At that time I didn’t know any names and addresses. I didn’t have a firm intention anymore than I have one this morning to call character witnesses. There is a drawback to my point of view for calling character witnesses which I shouldn’t discuss now and it is a decision I haven’t made yet. I haven’t violated the court order in my opinion as to disclosing any witnesses I intend to call. I obtained the names of several potential character witnesses from Mr. Thomas over the weekend. I contacted Mr. Fredrick Peters yesterday. The chief of security at City Hospital One in St. Louis and I advised Mr. Seibel [the prosecutor] of that information within a couple of hours after I spoke to Mr. Peters. I have three other names. One of which I have mentioned to Mr. Seibel. Clark is a deputy sheriff in the St. Charles County Sheriff’s Department and who hasn’t yet been approached on the subject yet. He was furnished to me late yesterday afternoon by Mr. Thomas. There are two police officers working in St. Louis from eleven to seven. Anthony “Columbo” and Officer Schultz whose first name I don’t know. It is an eleventh hour decision and one the defendant is entitled to make and is entitled to reserve some trial strategy until the beginning of trial and I realize it leaves Mr. Seibel at a disadvantage but it shouldn’t preclude the defendant from calling character witnesses. It is to protect the State from surprise witnesses and to allow the State to prepare to rebut surprise witnesses. The State has had the question of Mr. Thomas’ character in mind throughout its preparation for today, and additionally these men are available — the testimony of the men will be brief and simply deal with their experience with him and in a limited relationship and will deal with their opinions as to his reliability and character and integrity and I don’t see how the State is prejudiced by that. (Id., 117-118) After listening to argument on both sides, the trial court interpreted the rule as requiring disclosure of any possible witness who might be called at trial. The Court forbade petitioner from calling his character witnesses, unless changed circumstances occurred: Furthermore, I am going to take the matter as submitted now. I am going to reserve a ruling on this matter in the event that under some circumstances that isn’t foreseen at this point it should be permissible to call these witnesses, but at this point the Court would be inclined to believe that this issue of character witnesses would be one which a defendant in any criminal case, and particularly this case of murder in the first degree is one in which the names of these witnesses should have been known and available and furnished to the prosecutor more than one day in advance of the trial. In any trial preparation — you express now, Mr. Gross, some statement to the effect that this is a tentative decision or not a firm intention on your part even at this time to call these witnesses — which I think would fly in the face of the rule, attempting to apply fairness to both a defendant and to the State and trial preparation. And in that basic fairness it would appear to the Court to be unfair to permit calling of these witnesses at this time. That is my ruling at this time but I want it understood that if there are any unusual circumstances that may come up that may make these witnesses proper you may call that to the attention of the Court and make the request at a later time. I am making the ruling now so you will know how to conduct the voir dire and opening statement so you won’t be caught off guard by saying something not in evidence later. MR. GROSS: I am unable to anticipate any unusual circumstances that would change, in fairness to Mr. Seibel and in this light I think it is best for the defendant’s trial strategy to abandon the subject of character witnesses.... I had no contact with any character witnesses before yesterday and in a couple of hours I advised Mr. Seibel who I contacted and I think the defendant will be prejudiced if the trial shapes up in a manner that would make it advantageous to call character witnesses and he is unable to call them. THE COURT: The Court has ruled and I will reserve my further ruling upon any specific requests that you may make later. (Id., 120-123) At trial defendant testified in his own behalf and offered no further evidence. (Id., 343-380) A hearing was held in the state circuit court on petitioner’s Rule 27.26 motion for post-conviction relief on October 15, 1980. Petitioner called only trial defense counsel Michael Gross as a witness. He testified that on the day before trial he notified the prosecutor of his intention to call one or more character witnesses for the defense. Petitioner Thomas was a security guard at St. Louis City Hospital No. 1 at the time of his arrest and he had no prior criminal record. Mr. Gross testified that he wanted to call the character witnesses to establish petitioner’s reputation for integrity and truthfulness. He believed that it was a case which called for the use of character witnesses. He stated that he had no excuse for not having decided to use the character witnesses until the day before trial. Even then he did not have the witnesses’ names until either that day or the day before and he contacted the prosecutor almost immediately. Attorney Gross further testified that he had originally planned to conduct Thomas’ defense without character witnesses. After the trial court prohibited him from calling the character witnesses, he returned to his original plan of defense. There was no change in circumstances which would allow for the calling of the character witnesses, as the trial court had ruled. (Resp.Exh. M, 5-19) On cross-examination attorney Gross testified that he had been involved in the case as early as mid-1976 and had represented petitioner in the preliminary hearing. He further testified that petitioner had supplied him with the names of four possible character witnesses. However, Mr. Gross never spoke with any of them, except Mr. Peters. None of the prospective character witnesses were subpoenaed. (Id., 22) Again, attorney Gross testified that he had no conversation with these witnesses, except Mr. Peters who stated Thomas had been an exemplary and well-trusted employee. Mr. Peters spoke very highly of petitioner. (Id., 24-25) He testified that he would havé interrogated all of the witnesses concerning petitioner’s reputation for truthfulness and integrity. Among these witnesses, Deputy Clark was a St. Charles County jailer who came to know petitioner only during petitioner’s incarceration in the case from March of 1976 until January of 1977. (Id., 36) On February 20, 1981, Circuit Judge David A. Dalton denied petitioner’s Rule 27.26 motion. He ruled that the trial court did not violate petitioner’s right to a fair trial by precluding the use of character witnesses. He specifically found as follows: The trial court’s ruling did not prohibit the defendant from calling character witnesses, but rather was provisional only to the effect of protecting voir dire and opening statements and that a definitive ruling was reserved until such time, if ever, the defendant wanted to call character witnesses during the course of the trial; that the trial lasted three days; that Movant was the only witness in his own behalf; and that no attempt was made to call character witnesses, nor was the subject mentioned further during the trial.... [N]o attempt to call character witnesses was made, so that the court could rule; [and] that defense counsel, on page 122 of the transcript, made the reference to defendant’s trial strategy to abandon the subject of character witnesses... .

895328-9467

POLLOCK, District Judge. This action was brought by Rees, as trustee of the Trusler Grain Company, bankrupt, to recover certain sums of money from the Emporia State Bank and the Emporia Loan & Investment Company. The eomplaint contained three counts, each of which alleged voidable preferential payments made prior to the adjudication. The bank went out on demurrer. The ease ’against the loan company was tried to a jury. At the close of all the evidence motions for a directed verdict were overruled. Judgment was entered for the loan company on the first and second counts, and against it on the third count for the sum of $5,341.77. This appeal is taken from the judgment entered on the third count. The loan company contends that its motion for a directed verdict should have been sustained for the reason that there was no evidence introduced showing that it knew or had reason to believe that at the time the payment was made that it knew or had reason to believe that the grain company was insolvent or that the payment would effect a preference and enable it to obtain a greater percentage of its debt than other creditors of the same class. The Trusler Grain Company was, among other things, engaged in trading on the Chicago Exchange. It was located in Emporia, Kan., carried its hank account with the Emporia Bank and its trading account with Bennett & Co. in Chicago. The Emporia Bank and the loan company were affiliated. L. W. Wayman was cashier of the bank, and secretary of the loan company. H. P. Trusler was president of the grain company and director in the bank and loan company. He became a director in the bank about January, 1930, when he purchased bank stock under an agreement with Wayman to repurchase the stock at $400 a share. After he became a director in the bank, the grain company negotiated its loans with the loan company. The grain company had done business with the bank for about eight years prior to its suspension of business. It made some loans with the other banks in Emporia, but the major part of its business was done with the bank and loan company. On November 20, 1930; the account of the grain company at the bank was overdrawn $2,504.71. About noon Trusler called and asked Wayman to increase his loan $6,000 or $8,000 which was refused. The grain company owed the loan company at that time about $16,000. In the afternoon a check of the grais company for $4,500 payable to one Marshall eame in. The check was protested and returned. Trusler went to the bank a few minutes before it closed and made a deposit of $9,303.68. After the overdraft was paid, a balance remained of $5,341.77. Trusler again asked if he could increase his loan and was again refused. Wayman told him they were trying to reduce the loans rather than increase them. Trusler then stated that if Wayman would take up his bank stock at $400 a share he would pay his notes. Way-man agreed and the stock was turned over to the loan company at $400 a share, and $12,-000 credited on the notes that the grain company owed the loan company. Wayman did not make up to the loan company any loss suffered by it because of a depreciated value of the bank stock. The stock also was the personal property of Trusler and not the grain company. Trusler then wrote a check for the balance of the grain company’s account ($5,341.77), which was turned over to the loan company with the exception of $206, which was turned over to Trusler personally. The following day the grain company suspended business. Wayman testified that he did not know the grain company was insolvent, nor did he have reason to suspect it. Trusler testified that he did not teE Wayman that the gráin company was insolvent and 'was going to suspend business the foEowing day. The creditors of the grain company, other than the loan company, will receive 12 per cent, of their claims. Section 60b of the Bankruptcy Act, as amended by Act June 25, 1916, § 11 (11 US CA § 96 (b), defines the circumstances under which a preference is voidable for the benefit of creditors. See Remington on Bankruptcy, vol. 4, § 1628. All the circumstances of a voidable transfer are admitted with the exception of knowledge by the loan company of the insolvency of the grain company or reasonable cause'to believe that a preference would be effected. A voidable preference imphes intent or wiUingness on the creditor’s part to deplete the insolvent fund in order to obtain satisfaction in whole or in part of his claim. The question of the existence of- the reasonable cause for so believing is a question of fact. Boone v. Merchants’ & Farmers’ Bank (D. C. N. C.) 285 F. 183; Boston Nat. Bank v. Early (C. C. A. 1) 17 F.(2d) 691; Bassett v. Evans (C. C. A. 8) 253 F. 532; Remington on Bankruptcy, vol. 2, par. 1820. If substantial evidence is introduced showing facts and circumstances in possession of the creditor at the time of the payment, which would cause an ordinarily prudent business man to conclude a preference was intended, it is strictly a question for the jury and not the court. Sundheim v. Ridge Ave. Bank (D. C. Pa.) 138 F. 951, affirmed Ridge Ave. Bank v. Studheim (C. C. A.) 145 F. 798. It is not necessary to show actual knowledge on the part of the creditor. It is enough if the circumstances are sufficient to put a person of ordinary prudence and discretion upon inquiry. In re McDonald & Sons (D. C. S. C.) 178 F. 487; Remington on Bankruptcy, vol. 2, §§ 1822, 1823. The evidence introduced here was clearly sufficient to submit the case to the jury. Trusler and Wayman were close personal friends. Trusler was president of the grain company and a director in the bank and in the loan company. The grain company had done business for about eight years with the bank. Its account was overdrawn frequently, but the afternoon deposit usuaEy covered the overdraft. Its account was overdrawn at noon on the 20th of November, when Trusler called fo'r the additional loan. A check, for $4,500 was protested that afternoon. Nothing was said to Trusler about the protested cheek. Just before closing time he made a deposit which covered the overdraft and left a balance of $5,341.77. He again requested the additional loan and was refused, the reason given being that the bank wanted to reduce its loans rather than increase them. Trusler then retired $12,000 of the grain company’s loan with his personal bank stock. He retired the balance by giving a check on the grain company for $5,341.77. This closed the grain company’s account in the bank. Wayman knew when the account was closed that the $4,500 protested check was outstanding. Trusler also had knowledge of that fact. It has been held that knowledge of cheeks dishonored may be evidence tending to show reasonable cause for belief of insolvency. Remington on Bankruptcy, vol. 2, § 1832, p. 650, and cases cited under note 12. Furthermore, Wayman had the loan company retire $12,000 of the grain company’s loan by taking over Truster's personal bank stock. Wayman personally had agreed to take this stock off Truster’s hands at $400 a share, but the loan company was not a party to the agreement. Wayman testified that Trusler probably wanted to get rid of the bank’s stock because it was not of the value at which he (Wayman) had agreed to repurchase, yet he also testified that he did not reimburse the loan company for any loss it might have sustained because of its retiring his obligation. The closing of the grain company’s account with a protested check outstanding and especially in view of the friendly relations of Trusler and Wayman; the withdrawal of Trusler as director in the bank by disposing of his stock to satisfy a firm obligation; the acceptance by the loan company of the bank stock at the figure Wayman personally agreed to redeem it, and the failure of Wayman to make any arrangements with the loan company are all circumstances which should have gone to the jury for the purpose of determining whether there was reasonable cause to believe that the Grain Company was insolvent. See Huttig Mfg. Co. v. Edwards (C. C. A. 8) 160 F. 619. It is further contended that the court erred in refusing to give the following instruction: “For his third cause of action plaintiff alleges that on November 20, 1930, the Trusler Grain Company paid to the defendants $5,341.77 which was applied by the defendant on indebtedness owing it from the Grain Company. “The defendant admits the payment of this sum of money and admits that it was applied upon an indebtedness alleged to he $17,-000.00 due to it from the Grain Company on that date, but alleges that as partial security for said indebtedness said Grain Company had previously delivered to it certain negotiable Masonic bonds of the value of $8,000.00 and that when said payment of $5,341.77 was received by it, said Grain Company demanded and received said bonds so pledged by it. “Under these circumstances, you are instructed that the net payment received by the defendant from the Grain Company on November 20, 1930, was the sum of $5,341.77 less the value of the Masonic bonds so returned to said Grain Company. “The law presumes that every person will pay his legal obligations and in the absence of evidence to the contrary you are warranted in assuming that the bonds in question were worth their face value, namely, $3,000.00. The sum of $3,000.00 should therefore be subtracted from the payment of $5*341.77, leaving a net payment on that date of $2,341.77.”

155695-8428

OPINION SWEET, District Judge. Defendants Robert A. Zander (“Robert”), Karin Zander (“Karin”) (together, the “Zanders”), and Western Oil & Refining Co., Inc. (“Western”) have moved pursuant to Rules 12(b)(2) and 12(b)(5), Fed.R.Civ.P., to dismiss the complaint of plaintiff Citicorp International Trading Company (“CITC”) for lack of personal jurisdiction and for failure of service of process. In the alternative, defendants move pursuant to 28 U.S.C. § 1404 for a change of venue to the United States Court for the District of Arizona. The motions were argued on October 21, 1988 and were considered fully submitted on December 8, 1988. For the reasons set forth below, defendants’ motions are denied. Facts CITC is a Delaware corporation with its principal place of business in New York. Western is a California corporation with its principal place of business in Arizona. The Zanders, officers of Western and its sole owners, are residents of Arizona. In June, 1986, Robert, acting through a banker, contacted CITC in New York to assist him-in connection with Western’s proposed crude oil purchase contracts with Nigerian National Petroleum Corporation (“NNPC”), the Nigerian government-owned oil agency. Robert communicated with CITC in New York often over the next several months by telephone, telex and facsimile transmission. In addition, he made several visits to New York to negotiate proposed business transactions. Robert, on behalf of Western, and CITC discussed various transactions. Further, CITC claims that Robert and Karin came to New York and had dinner with CITC officials; Karin, however, has submitted an affidavit stating that she has never been to New York. To convince CITC to assist the Zanders and Western in connection with their business with NNPC, Robert, on behalf of himself and his wife, promised to stand behind all of Western’s financial obligations to CITC and provided CITC with the Zanders’ personal financial statement to demonstrate their ability to back their commitments. The statements show assets of $55,452,600 and a net worth of $32,519,400. On January 13, 1987, Western and CITC executed a Representative Agency Trade Agreement (the “Agency Agreement”). The Agency Agreement was signed at CITC’s offices in New York. In addition, CITC loaned Western $1,000,000 required by NNPC as a good faith performance deposit in contemplation of cargos of crude oil to be loaded in Nigeria. This was done by way of a promissory note in the amount of $1,000,000 executed on February 20, 1987 between Western and CITC, and an unconditional guarantee on the promissory Note signed by Robert. Before the $1,000,-000 bank check was issued, Robert was in New York several times to arrange the loan. Upon issuance of the check, Robert sent a representative to New York to pick up the check and deliver it to Nigeria. Under the Agency Agreement, CITC was entitled to be reimbursed for all direct expenses incurred by CITC on behalf of Western. To facilitate Western’s sale of crude oil, CITC chartered two vessels for Western. When the vessels were not loaded in Nigeria, CITC was forced to pay ship demurrage charges as well as cancellation charges totalling in excess of $1,437,000, as well as interest expenses, miscellaneous expenses and other commissions, all of which were incurred in new York. To reflect this commitment under the Agency Agreement, on August 21, 1987, Robert and Karin Zander and Western signed a promissory note in Arizona (the “Note”), payable to CITC in New York for the sum of $1,572,429. The Note was signed by Robert in his capacity as President of Western and by Robert and Karin in their individual capacities as guarantors, and provides for joint and several liability between and among Western, Karin and Robert. The action in this case is brought under this Note. N.Y. CPLR § 302(a)(1) It is well-established that personal jurisdiction in a diversity action must be determined by the law of the forum. Arrowsmith v. United Press International, 320 F.2d 219, 233 (2d Cir.1963) (en banc). New York CPLR § 302(a)(1) provides: a may exercise personal jurisdiction over any non-domiciliary ... who ...: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state. According to the Court of Appeals for the Second Circuit, A nondomiciliary “transacts business under CPLR 302(a)(1) when he purposefully avails [himself] of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws. CutCo Industries, Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986), quoting McKee Electric Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 382, 283 N.Y.S.2d 34, 229 N.E.2d 604 (1967). Further, an examination of “[t]he totality of defendant’s activities within the forum” will show whether a defendant has availed himself or herself of the privilege of conducting activity within New York. Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 447 & n. 5, 261 N.Y.S.2d 8, 18, 209 N.E.2d 68, 75, cert. denied, 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158 (1965). See also Collateral Factors Corp. v. Meyers, 39 A.D.2d 27, 29, 330 N.Y.S.2d 833 (1st Dep’t 1972) (“In determining whether the defendants are subject to jurisdiction under the long-arm statute____the entire transaction must be considered.”). Robert, on behalf of Western, initiated the transaction with New York-based CITC. He and other Western personnel made several visits to New York to foster the CITC-Western relationship. Negotiations were held in New York, and several agreements — including the Agency Agree ment,-but not including the Note at issue in this case—were signed in New York. The Note specifically designates New York as the place of payment. Moreover, agreements signed by the parties, including the Agency Agreement and the Note, provide that the laws of New York will govern the Agreements. Such choice of law provisions are a factor to consider when making jurisdictional determinations. See Burger King v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); CutCo Industries, 806 F.2d at 367 (“[w]e believe that New York would ... consider choice of law clauses to be relevant in determining whether a non-domiciliary ‘transacted business’ for CPLR 302(a)(1) purposes.”). This combination of contacts indicates that Western and Robert have purposefully availed themselves of the benefit of conducting activities in New York, and thus were transacting business in New York within the meaning of § 302(a)(1). As for personal jurisdiction over Karin, under § 302(a)(1), the activities of a nonresident defendant’s agent in New York provide a basis for jurisdiction over a nonresident on suits arising out of the agent’s activities in New York. Therefore, if Robert was Karin’s agent, and if this suit arises out of his activities in New York, which, as seen, it does, this court has jurisdiction over Karin. As the Court of Appeals for the Second Circuit has stated, “where there is joint control of a business enterprise ... enough control has been shown to establish prima facie this particular element of agency to satisfy long-arm jurisdiction.” CutCo Industries, Inc., 806 F.2d at 366. Because Robert and Karin were the sole owners of Western, Robert was Karin’s agent for purposes of § 302(a). In addition, as long as Karin’s agent Robert was within New York State for her benefit and with her consent, there is jurisdiction under § 302(a)(1). See Plaza Realty Investors v. Bailey, 484 F.Supp. 335, 347 n. 10 (S.D.N.Y.1979) (an individual will be deemed an agent of a nonresident defendant if that individual appeared in new York “for the benefit of and with the knowledge and consent of the defendant”) (citations omitted); Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 308 N.Y.S.2d 337, 256 N.E.2d 506 (1970). Robert was in New York on several occasions for the benefit of and with the knowledge and consent of Karin. He negotiated deals in which both he and Karin offered their individual guarantees. Indeed, the fact that Karin signed the Note shows that she ratified his acts. Thus Robert acted as Karin’s agent, and this court has jurisdiction over Karin pursuant to CPLR § 302(a)(1). Service of Process Because all three defendants are subject to personal jurisdiction pursuant to § 302, service of process effected in Arizona was proper under CPLR § 313. Venue

4287568-11704

JAMESON, District Judge. In this action the Government is condemning certain lands in Flathead County, Montana. The issue of just compensation was referred to three commissioners, and their report was filed August 23, 1957. Defendants have filed a motion to set aside and void the hearing before the commissioners, and their report, on the ground that “personal service of notice was not made on all persons having or claiming to have an interest in the property * * * as is required by Rule 71A of the Federal Rules of Civil Procedure.” The defendants Jack E. Hoerner and Olga B. Hoerner, his wife, were served with notice and filed an answer on May 22, 1957. On July 10, 1957, the deposition of Jack E. Hoerner was taken by the plaintiff, from which it appears that title to the property in question stands in the name of Jack E. Hoerner, but that pursuant to some family agreement “personal to the family” his mother, Caroline Hoerner, and his brothers Mike Hoerner, John Hoerner, Adolph Hoerner, Tony Hoerner, Frank Hoerner, Willie Ploerner, Vincent Hoerner, Peter Ploerner and Ronnie Hoerner, (and presumably other brothers and sisters not named) have an interest in the land, “share and share alike” and share the proceeds from the land, share and share alike. With respect to Jack E. Hoerner’s representation of his mother, brothers and sisters, he testified as follows: “Q. (By Krest Cyr, attorney for plaintiff). In this action at this time you are representing all your brothers and sisters and your mother? A. That’s right. ■ “Q. And it is your lawyer’s intention, who is present at this time, Mr. McGarvey, to file an amended answer, appearing for all your brothers and sisters, and your mother, who have an interest in this property, is that right ? A. Repeat that please. “Q. It is your attorney’s intention to file an answer, appearing for all your brothers and sisters, and your mother, that have an interest in the property as well as yourself? A. That I am appearing for them all? “Q. Yes. A. Yes. Q. In the pleadings they will all appear, and any award that may be made arising out of this action for the full interest that is being taken by the Government here, is that right? You agree to that? “Mr. McGarvey': Yes. “The Witness: One thing that I hesitated about answering was: an award being made — that I don’t like —that you make the award all separately or to me alone, and— “Mr. Cyr: Well, upon satisfactory evidence of the fact that they have authorized you to accept the award we could make it to you personally and as attorney in fact for these others. Otherwise we would have to put the names of all of them on the check. Is that all right? “Mr. McGarvey: That’s all right.” Thereafter, authorizations were executed and filed by the mother, brothers and sisters of Jack E. Hoerner, reading as follows: “We, the undersigned, hereby authorize Jack E. Hoerner to appear for us and represent any interest that we may have in the above entitled proceedings; “We request that the whole award be paid to Jack E. Hoerner and Olga Hoerner, the record owners of the property involved in said proceedings, in payment for the full interest in said property being taken by the United States of America in said proceedings.” The property had belonged to Anton Hoerner, whose estate was probated in the District Court of Flathead County, Montana. Vincent Hoerner was appointed administrator on May 6, 1941 and notice to creditors was published in October, 1941. The estate has never been closed, the last instrument being a withdrawal of attorney, filed August 24,1945. The authorizations quoted above were executed by all of the persons named as heirs of Anton Hoerner in the probate proceedings, including those specifically named by Jack E. Hoerner in his dep osition. Jack E. Hoerner prosecuted to judgment in the District Court of Flathead County an action to procure a tax deed covering the property in question. In this action, among others, his mother, brothers and sisters, together with the Anton Hoerner Estate and Vincent Hoerner as administrator of the estate, were named as parties defendant. Decree was entered March 17, 1953. At hearing on this motion, counsel for defendant stated that he was representing “all the heirs”, i. e., Jack E. Hoerner, his mother, brothers and sisters. Counsel for defendants contend: (1) That Vincent Hoerner, as administrator of the estate of Anton Hoerner, deceased, was not served in the action to procure tax deed and that the heirs of Anton Hoerner accordingly were not “foreclosed of their interest in the property in question.” (2) That the authorizations quoted above did not constitute an admission of service or submission to the jurisdiction of the court. The action to procure tax deed was prosecuted pursuant to the provisions of Sections 84-4162 to 84-4170, inclusive, Revised Codes of Montana 1947. Under Section 84-4168, the judgment is “binding and conclusive upon the defendants therein named * * * ”, and all defendants “shall be forever barred and enjoined from claiming or asserting any claim” existing at the time of the entry of judgment. In the decree entered March 17, 1953, the court found that each and all of the defendants had been “duly and legally served with summons and process”. Defendants have submitted the return of the sheriff reciting service upon Vincent Hoerner on November 26, 1952, and an affidavit of the deputy who made service that he does not “recollect making any service upon Vincent Hoerner in any other respect or capacity except that upon Vincent Hoerner as an individual”. There is no contention that the action was defective except in the failure to serve Vincent Hoerner in his capacity as administrator of the Anton Hoerner estate. The estate is not a party here. In the decree the court found “that the defendant Vincent Hoerner is now and ever since on or about the 6th day of May, 1941 has been duly appointed, qualified and acting administrator of the estate of Anton Hoerner, deceased.” The alleged defect in service is not of the type considered by the Supreme Court of Montana in Lamont v. Vinger, 61 Mont. 530, 202 P. 769, where the court held that the failure to give notice to the heirs of an estate rendered an administrator's sale void. Here there is an express finding that Vincent Hoerner, defendant, and Vincent Hoerner, administrator, are the same person and that all defendants had been duly and legally served. It is my opinion that under these circumstances the decree is not now subject to collateral attack. But even if this were not true, the failure to serve Vincent Hoerner as administrator would not be fatal to the-divesting of title of the heirs of the estate. It is clear under Montana law that title to the property of a deceased vests in the heirs immediately upon the-death of the intestate, subject only to the-control of the district court and the possession of the administrator, for purposes of administration. Lamont v. Vinger, supra. There is no suggestion that, creditors of the deceased or the estate-yet remain to be paid, or that final settlement of the estate would be dependent, upon this asset. As noted above, notice-to creditors in the Anton Hoerner Estate was given in October, 1941, so that the time for filing claims expired more than 15 years ago. Having shown no grounds which would be sufficient to subject the action to procure a tax deed to-collateral attack, this issue must be determined against the defendants. Counsel for plaintiff suggest that a-, finding in plaintiff’s favor on this issue-alone is sufficient ground to deny the motion. But this ignores the fact that equities of persons who were heirs of Antom Hoerner may have arisen since the de cree was entered in the tax deed proceeding. In fact, for the purposes of this motion, it must be assumed that such equities did arise and that by reason of the deposition of Jack Hoerner taken on July 10, 1957, the Government had notice thereof subsequent to the bringing of this action. Admittedly under Rule 71A, Federal Rules of Civil Procedure, 28 U.S.C.A., the Government was required, after commencement of the action, but prior to the hearing involving compensation, to add as defendants “all persons having or claiming an interest in that property whose names can be ascertained by a reasonably diligent search of the records * * * and also those whose names have otherwise been learned”, with process to be served as otherwise provided “upon all defendants, whether named as defendants at the time of the commencement of the action or subsequently added.” The question then arises as to the effect of the authorizations executed and verified by the mother, brothers and sisters of the defendant Jack E. Hoerner and filed in this proceeding. May these defendants now deny the jurisdiction of this court by attacking the validity of the “authorizations” through which they made their appearance? In considering this question it must be kept in mind also that one of the attorneys who now represents these defendants participated in the taking of the deposition of Jack E. Hoerner and in the exchange between counsel quoted above. Rule 22 of the Rules of Practice of the United States District Court for the District of Montana provides: “Special Appearance.' — Any party may, without leave of Court, appear specially in any action at law or suit In equity, for any purpose for which leave to appear could be granted by the Court, by stating in the paper which he serves and files that the appearance is special and that if the purpose for which such special appearance is made shall not be sanctioned or sustained by the Court, he will appear generally in the cause within the time allowed therefor by law or by the order of Court, or by stipulation of the parties. If such statements be not made as above provided, the appearance shall be deemed and treated as a general appearance * * *.” An appearance sufficient to waive the court’s jurisdiction over a person is a matter of intention, actual or implied. It is not to be inferred except as the result of acts from which an intent may properly be inferred. Durabilt Steel Locker Co. v. Berger Mfg. Co., D.C.N.D Ohio E.D.1927, 21 F.2d 139; Grable v Killits, 6 Cir., 1922, 282 F. 185, 195, 6 C.J.S. Appearances § 12, p. 19. Can such an intent be found from the circumstances here? As a general rule any action on the part of a defendant, except to object to the jurisdiction over his person, which recognizes the case as in court, will constitute a general appearance. Massachusetts Bonding & Insurance Co. v. Concrete Steel Bridge Co., 4 Cir., 1930, 37 F.2d 695, 701; Jos. Riedel Glass Works, Inc. v. Keegan, D.C.Me.S.D.1942, 43 F.Supp. 153, 159; The Ucayali, D.C.La.1942, 47 F.Supp. 203; 6 C.J.S. Appearances § 13, p. 42. In Montana, the rule has been stated thus: “In fact, any act which recognizes the case as in court constitutes a general appearance, and even in the face of a declared contrary intention, a general appearance ‘may arise by implication from the defendant seeking, taking, or agreeing to some step or proceeding in the cause beneficial to himself or detrimental to the plaintiff,’ other than one contesting only the jurisdiction of the court,” * * * Haggerty v. Sherburne Mercantile Co., 1947, 120 Mont. 386, 395, 186 P.2d 884, 891; Gravelin v. Porier, 77 Mont. 260, 274, 250 P. 823, 826. In this case there can be little question that the parties who signed the authorizations recognized the case as in court and that a judgment o'r award was to be made therein. Their taking or agreeing to this step in the action is consistent with no other purpose or intent than to make a general appearance.

10510340-5445

POLITZ, Chief Judge: The Resolution Trust Corporation appeals an order imposing sanctions and expenses under Fed.R.Civ.P. 37(d). We affirm. Background RTC sued Southern Union Company, Inc. for specific performance of a repurchase agreement. During the course of this litigation Southern Union served notice on RTC that it intended to depose RTC pursuant to Fed.R.Civ.P. 30(b)(6). The notice set forth, in a page and a half, 10 discrete topics with which the deponent was to be familiar. Three weeks later, and after several telephone conversations between counsel, RTC provided two witnesses. Lead counsel for Southern Union flew to Dallas from Washington, D.C. to conduct these depositions. During the questioning of the first witness, Charles Perry, it became immediately apparent that he possessed no knowledge relevant to the subject matters identified in the Rule 30(b)(6) notice. Indeed, on cross-examination RTC’s counsel actually im peached Perry with his lack of knowledge. On redirect Southern Union’s counsel recited each item of inquiry designated in the notice and asked if Perry had any knowledge thereof. In every instance the answer was “no.” The second designated witness, Robert Wieting, was equally un-knowledgeable. Southern Union moved for sanctions; RTC responded with relevant documents, one of which was signed by a Howard Jones who, although he had not been offered in response to the Rule 30(b)(6) notice, had been deposed earlier without avail. During the course of his second deposition, however, Southern Union’s counsel refreshed Jones’ memory with the relevant documents, including the one he had signed. Jones then regained his memory. RTC obviously made no effort to review documents which would have informed it of Jones’ relevant knowledge. Jones was not designated under Rule 30(b)(6), nor were the documents identifying his knowledge produced, until after Southern Union sought sanctions. In granting the motion for sanctions the court awarded costs and fees incurred in deposing Perry and Wieting and in identifying Jones as a person with knowledge. Analysis Rule 37 authorizes the district court to impose sanctions against a party for failing to appear “before the officer who is to take the deposition, after being served with proper notice.” Southern Union argues persuasively that RTC’s designation of the first two witnesses was tantamount to a complete failure of the corporation to appear. RTC maintains that it was only obliged to produce persons who might have pertinent knowledge. Implicit in this argument is the suggestion that RTC was under no obligation to make any investigation, including the review of readily available records, to identify an appropriate witness for Rule 30(b)(6) purposes. RTC seeks succor in the Second Circuit’s decision in Salahuddin v. Harris, in which the court determined that deponent’s failure to answer questions at a deposition was not equivalent to a failure to appear. As viewed by the Salahuddin court, in a case where the deponent physically appears, “ ‘the proper procedure is first to obtain an order from the court as authorized by Rule 37(a), directing him to be sworn and testify.’ ” Were we here faced with a case involving the deposition of a natural person we might be inclined to agree with the reading of Rule 37(d) by our Second Circuit colleagues. The deposition of a corporation, however, poses a different problem, as reflected by Rule 30(b)(6). Rule 30(b)(6) streamlines the discovery process. It places the burden of identifying responsive witnesses for a corporation on the corporation. Obviously, this presents a potential for abuse which is not extant where the party noticing the deposition specifies the deponent. When a corporation or association designates a person to testify on its behalf, the corporation appears vicariously through that agent. If that agent is not knowledgeable about relevant facts, and the principal has failed to designate an available, knowledgeable, and readily identifiable witness, then the appearance is, for all practical purposes, no appearance at all. In the instant case, RTC possessed documents that clearly identified Jones as having personal knowledge of the subject of the deposition. RTC did not furnish those documents or designate Jones until after it had designated Perry and Wieting, obliged Southern Union’s counsel to travel from Washington, D.C. to Dallas for a useless deposition, and been served with Southern Union’s motion for sanctions. The finding that RTC did not make a meaningful effort to acquit its duty to designate an appropriate witness is manifest. The district court did not abuse its discretion in awarding fees and costs under Rule 37(d). RTC finally contends that it was denied the opportunity to develop an adequate record because the trial court declined to hold an evidentiary hearing or provide detailed findings of fact. The district court has broad discretion to grant or deny such a hearing, limited only by the due process clause of the fifth amendment. In the instant case both parties submitted substantial memoranda detailing their factual and legal positions. They were given an opportunity to be heard. We cannot say that this procedure was infirm, considering the sanction imposed. AFFIRMED. . Southern Union called the deposition to inquire into the circumstances surrounding the preparation of a demand letter by RTC's recently deceased managing agent.

1757421-18118

MESKILL, Circuit Judge: This is an appeal from a judgment of the United States District Court for the Northern District of New York, McAvoy, C. /., dismissing Northern Assurance Company of America’s (Northern) complaint against Square D Company (Square D) on grounds of res judicata. The district court held that Northern’s claims were barred because of the denial of Northern’s motion to amend its earlier complaint to add Square D as a defendant in a suit brought against another party. Because Northern was under no obligation to bring its claims against Square D in the earlier suit, we hold that the denial of Northern’s motion to amend its complaint in the earlier suit does not bar its claims in this suit. Reversed, vacated and remanded. BACKGROUND This suit arises out of a November 1995 fire at the home of Michael and Carole Morrell. The Morrells recovered from their insurer, Northern. After investigating the circumstances surrounding the fire, Northern believed that the electric compa ny, New York State Electric & Gas Corporation (NYSEG), was at fault and, as sub-rogee of the Morrells, sued NYSEG on September 9, 1996 in the Northern District of New York, alleging negligence, strict liability and breach of warranty claims (hereinafter Northern I). On January 28,1997, NYSEG responded by adding Square D (defendant-appellee in the instant case) and the Tree Preservation Company and its employees (collectively “TPC”) as third-party defendants. NY-SEG claimed that either Square D, the manufacturer of the home’s circuit breaker, or TPC, the company that trimmed the trees around the Morrell’s home, ultimately was responsible for the fire. Judge Pooler assigned the case to Magistrate Judge Hurd for pre-trial proceedings. The magistrate judge and the parties agreed on a scheduling order, pursuant to Fed.R.Civ.P. 16, setting April 15, 1997 as the deadline for joinder of parties. Just before the deadline, Northern requested a one week extension to add TPC as a first-party defendant. The extension was granted and TPC, but not Square D, was added as a first-party defendant. Northern claims that, despite NYSEG’s allegations against Square D, it did not pursue claims against Square D at this time because Northern did not have enough independent evidence to pursue that claim in good faith. In early October 1997, Northern’s expert electrical engineer performed more tests to determine the cause of the fire. According to Northern, these tests demonstrated for the first time that it had a claim against Square D. On December 1, 1997, several months after the deadline for joinder of parties, Northern petitioned the court for leave to amend its complaint a second time in order to bring claims against Square D directly. The magistrate judge denied leave to amend the complaint on February 4, 1998, finding that it was untimely, that Northern had failed to explain the delay and that Northern had not presented any evidence to form the basis of a claim against Square D. The magistrate judge did not address the merits of Northern’s claims. Northern did not appeal the decision or seek reconsideration before Judge Pooler. Instead, Northern filed this suit against Square D in the Southern District of New York on May 6, 1998, alleging essentially the same claims it attempted to add in Northern I. Subsequently, by consent of the parties, the case was transferred to the Northern District of New York, where it was assigned to Chief Judge McAvoy. Square D moved to dismiss on grounds of res judicata, arguing that the magistrate judge’s denial of Northern’s petition to amend in the first suit constituted res judi-cata as to the claims contained within the denied amended complaint. The district court granted Square D’s motion and dismissed the action on December 29, 1998. See Northern Assurance Co. of America v. Square D Co., 1998 WL 938943, at *3 (N.D.N.Y. Dec. 29, 1998) (hereinafter Northern II). Northern’s petition for reconsideration was denied. See Northern Assurance Co. of America v. Square D Co., 1999 WL 123575 (N.D.N.Y. Mar. 1, 1999). This appeal followed. DISCUSSION A. Jurisdiction Northern is a Massachusetts corporation with its principal place of business in Boston. Square D is a Delaware corporation with its principal place of business in New York City. Northern alleged damages in excess of $100,000. As such, federal jurisdiction exists based on diversity of citizenship, pursuant to 28 U.S.C. § 1332. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. B. Claim Preclusion Square D claims, and the district court held, that claim preclusion bars Northern’s claims against Square D. It argues that the magistrate judge’s denial of Northern’s leave to amend its complaint in Northern I bars the claims contained in the proposed amended complaint. We disagree. While denial of leave to amend a complaint may have preclusive effect in some cases, claim preclusion is unavailable here because the claims sought to be added to the first suit were against an independent party and were not required to be brought in that suit. The doctrine of claim preclusion, not to be confused with issue preclusion or collateral estoppel, holds that “a prior decision dismissed ‘on the merits’ is binding in all subsequent litigation between the same parties on claims arising out of the same facts, even if based upon different legal theories or seeking different relief on issues which were or might have been litigated in the prior action but were not.” EFCO Corp. v. U.W. Marx, Inc., 124 F.3d 394, 397 (2d Cir.1997); see also Restatement (Second) of Judgments § 19 (1982) (“A valid and final personal judgment rendered in favor of the defendant bars another action by the plaintiff on the same claim.”). The import of claim preclusion is that it operates in two ways: (1) it bars claims that were brought and decided in a prior litigation; and (2) it bars all other claims relating to the same transaction against the same defendant that could have been brought at that time. To understand why claim preclusion is not a bar to the current suit, it is necessary to contrast our case with the typical situation where claim preclusion would apply after a denial of leave to amend. In those cases the plaintiff is seeking to add additional claims against the same defendant and leave to amend is denied without reaching the merits of the claim. The decision to grant or deny leave to amend rests within the discretion of the trial court. See John Hancock Mut. Life Ins. Co. v. Amerford Int’l Corp., 22 F.3d 458, 462 (2d Cir.1994). The courts are generally in agreement that these new claims should be barred. See EFCO, 124 F.3d at 399-400 (plaintiff sought leave to amend to add additional claims against the same defendant in state court, the court denied leave, and we found that claim preclusion “applies to the claims sought to be added in the proposed amended complaint”); see also Landscape Properties v. Whisenhunt, 127 F.3d 678, 683 (8th Cir. 1997) (after plaintiffs motion to amend its complaint to add additional claims against the same defendants was denied in first suit, in subsequent suit those claims were barred by claim preclusion); Huck v. Dawson, 106 F.3d 45, 49-50 (3d Cir.1997) (same); King v. Hoover Group, 958 F.2d 219, 222-23 (8th Cir.1992) (same, noting that “[i]t is well settled that denial of leave to amend constitutes res judicata on the merits of the claims which were the subject of the proposed amended pleading”); Johnson v. SCA Disposal Services, 931 F.2d 970, 974-76 (1st Cir.1991) (same); Restatement (Second) of Judgments § 25, cmt. b (1982) (“It is immaterial that the plaintiff in the first action sought to prove the acts relied on in the second action and was not permitted to do so because they were not alleged in the complaint and an application to amend the complaint came too late.”)- But see Mayes v. Local 106, Int’l Union of Operating Eng’rs, 1999 WL 60135, at *3 (N.D.N.Y. Feb.5, 1999) (finding that “the interests of justice favor examination” of claims that were not allowed to be added to a prior action). Where the plaintiff is seeking to add additional claims against the same defendant and leave to amend is denied, claim preclusion is appropriate. When claim preclusion is applied in these cases, it is not the actual decision to deny leave to amend that forms the basis of the bar. See, e.g., Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 564 (5th Cir.1983) (en banc) (finding no distinction between a plaintiff electing to advance additional claims after final judgment and a plaintiff advancing additional claims in a motion to amend its complaint, implicitly recognizing that the actual decision denying leave would be irrelevant for claim preclusion purposes). Indeed, the decision denying leave to amend is usually based on factors such as timeliness or convenience (as in Northern I) and is not an adjudication “on the merits.” In fact, the actual decision denying leave to amend is irrelevant to the claim preclusion analysis. See Integrated Technologies Ltd. v. Biochem Immunosystems (U.S.), 2 F.Supp.2d 97, 103 (D.Mass. 1998) (“The fact that a judge has denied a motion to amend which seeks leave to add a new claim to an existing case should have no bearing either way on the question whether plaintiff may file the new claim as a separate lawsuit, unless the denial of leave to amend is itself based on ... the merits.”). It may be a specific event upon which claim preclusion can focus, but the decision itself is not necessary for claim preclusion to apply. Instead, the bar is based on the requirement that the plaintiff must bring all claims at once against the same defendant relating to the same transaction or event. See, e.g., Nilsen, 701 F.2d at 563 (“[Theories which were the subject of an untimely motion to amend, filed in the earlier action, ‘could have been brought’ there.”). The claims will be barred through the normal rule barring claims that should have been brought, regardless of whether the plaintiff seeks to add them to the initial suit. See Integrated Technologies, 2 F.Supp.2d at 103 (finding, as a general principle, that where denial of leave to amend is not based on the actual merits of the claims, “ordinary principles of claim preclusion should determine whether the plaintiff should be permitted to assert such new claim in a separate lawsuit”). Thus, the actual decision denying leave to amend is no more than a proxy to signify at what point claims have been forfeited due to a plaintiffs failure to pursue all claims against a particular defendant in one suit. The bar, however, turns on normal principles of claim preclusion, i.e., whether Northern was required to bring its claims in the initial suit. Unlike the situation described above, our case involves a plaintiff seeking to add claims against a new defendant. Northern was not required to bring its claims against Square D in Northern I because they are independent claims. Northern has separate and distinct causes of action against each defendant, since NY-SEG and Square D allegedly are joint tortfeasors and are not in privity. North ern has “as many causes of action as there are defendants to pursue.” 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4407, at 52-53 (1981); see Restatement (Second) of Judgments § 49 cmt. a (1982) (for preclusion purposes “the claim against others who are liable for the same harm is regarded as separate”); see also Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 367 (2d Cir.1995) (quoting Wright, Miller & Cooper and the Restatement). If Northern • chose to sue one defendant, but not the other, the unadjudicated claim would survive the first judgment, because “[w]hen a litigant files consecutive lawsuits against separate parties for the same injury, the entry of a judgment in the prior action does not bar the claims against other potentially liable parties.” Central Hudson Gas, 56 F.3d at 367; see also White v. Kelsey, 935 F.2d 968, 970 (8th Cir.1991) (“A claim is not terminated against one person who may be liable for a loss by a judgment against another person liable for the loss.”). Applying these principles, the denial of Northern’s motion for leave to amend in Northern I cannot preclude Northern’s claims against Square Í) in this action. Because Northern was under no obligation to bring the claims in Northern I, it is not barred by the normal operation of claim preclusion. C. Policy and Judicial Economy Square D argues that even if claim preclusion does not apply, the policies behind it, achieving finality and preventing piecemeal and wasteful litigation, warrant dismissal of Northern’s claims. This argument is unpersuasive. Northern attempted, albeit belatedly, to bring its claim against Square D in Northern I. Had leave to amend been granted, the second suit would have been avoided. Northern should not be penalized for its failure to succeed in its attempt to have all claims resolved in one lawsuit. Claim preclusion should produce a sense of finality between the parties. When a party is victorious, it should not have to defend that victory again. In the present case, Square D’s victory, if it can be called that, was in not being added as a first-party defendant in Northern I. There was no decision on the merits of Northern’s claim that Square D’s circuit breaker was responsible for the house fire. Finality will not be upset by allowing this action to proceed. Furthermore, Square D will not be prejudiced. Had Northern not attempted to add its claims against Square D in Northern I, Square D would face the same claims as it will after this decision. Square D also claims that wise judicial administration requires dismissal of Northern’s action. We disagree. While dismissal of a complaint may be justified “if the ‘claims, parties, and available relief do not significantly differ between the two actions,’ ” Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.1993) (quoting Ridge Gold Standard Liquors v. Joseph E. Seagram & Sons, 572 F.Supp. 1210, 1213 (N.D.Ill.1983)), the scarcity of judicial re sources alone does not justify denying a party the opportunity to litigate a claim. Square D is unable to cite, and we are unable to find, any case where a second suit against an independent party was dismissed as duplicative. NYSEG and Square D are significantly different, independent entities with opposing interests. Cf. Curtis v. DiMaio, 46 F.Supp.2d 206, 215-16 (E.D.N.Y.1999) (dismissing suit as duplicative, but only after finding that although parties were not identical, their interests were sufficiently aligned). Northern’s claims against NYSEG and Square D are not duplicative. Furthermore, it is unlikely that this action will waste judicial resources. The decision to consolidate this ease with Northern I or try it separately is left to the district court, which is in the best position to manage its resources. Finally, Square D argues that we should not permit Northern to ignore the magistrate judge’s ruling by filing suit separately and thus ignoring the effect of Fed.R.Civ.P. 16 and the deadline for joinder of parties. See United States v. McGann, 951 F.Supp. 372, 379 (E.D.N.Y. 1997) (“[T]he government is attempting an end run around the denial of its motion to amend its complaint by filing a new one, ... attempting to accomplish indirectly what it could not accomplish directly. The law’s response to such attempts is generally a negative one.”). However, the magistrate judge’s ruling only said that it was too late to join claims directly against Square D in Northern I by amending the complaint. The ruling did not say that Northern forfeited or waived any claims against Square D. That issue was not before the magistrate judge. Neither did he consider the merits of Northern’s claim. His ruling was limited to the procedural aspects of Northern I. It did not foreclose other valid procedural routes available to Northern. See, e. g., SEC v. First Jersey Sec., 101 F.3d 1450, 1464 (2d Cir.1996) (in initial suit, plaintiff not required to bring claims arising after the filing of that suit, and its election not to add subsequent claims to the suit “is not penalized by application of res judicata to bar a later suit on that subsequent conduct”); Nilsen, 701 F.2d at 561 (“[Utilization of one procedural vehicle to vindicate a substantive right does not preclude employing a parallel procedural vehicle to vindicate the same substantive right.”). If this case is consolidated with Northern I, it will be via a procedural route different from the method foreclosed by the magistrate judge’s denial of the motion for leave to amend the complaint in Northern I. Thus, dismissal is not warranted, either under claim preclusion or on policy grounds. CONCLUSION For the reasons stated herein, the district court’s decision dismissing Northern’s suit on grounds of claim preclusion is reversed. The judgment is vacated and the case is remanded for further proceedings. . Judge Pooler became a Circuit Judge on June 19, 1998. Northern I was then apparently assigned to Chief Judge McAvoy. . The district court used the term res judicata to describe the doctrine that it believed barred the suit. The term res judicata, however, is more appropriately defined as encompassing two separate and distinct wings of preclusion law, claim preclusion and issue preclusion, see generally 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4402 (1981 & Supp.1999) (describing cases acknowledging claim and issue preclusion as separate doctrines within the broader concept of res judi-cata). Claim preclusion is at issue in our case. . We need not decide whether Northern’s claim against Square D could have been brought at the time of Northern I because it is unnecessary to our decision. Regardless of whether or not Northern was fully aware of its claim against Square D when it sued NY-SEG, it was under no obligation to add both parties to the initial suit, as we explain later.

5919621-25456

MEMORANDUM OF DECISION TERRY L. MYERS, CHIEF U. S. BANKRUPTCY JUDGE The chapter 7 trustee, Jeremy Gugino (“Trustee”), filed a complaint commencing this adversary proceeding. Trustee alleges defendants Chester and JoAnn Kerstein (the “Kersteins”) received from the chapter 7 debtor, William Miller (“Debtor”), a fraudulent transfer which Trustee may avoid under § 548 and/or under state law made applicable through § 544(b). The cause was tried and taken under advise ment. This Decision constitutes the Court’s findings of fact and conclusions of law under Rule 7052. FACTS According to Debtor’s testimony, Investors Property Management, Inc., (“IPM”) was an Idaho corporation formed in 2002. Debtor was an owner of IPM, along with his sons Taylor Miller and Steven Miller. In 2009, Debtor sold his interests in IPM to his sons effective December 31, 2009. Debtor executed a January 15, 2010 letter “resigning” as a director, stockholder, and employee of IPM. Following the sale and resignation, Taylor Miller ran IPM along with a bookkeeper and a few other employees. Debtor also worked on his own separate business affairs at the IPM office suite for a period of time and, in 2010, paid IPM “rent” for a small office. Debtor testified his post-2009 work was either as an individual or, at some point, in connection with Miller Real Estate Services, LLC (at times in this Decision, “MRES”), a limited liability company for which he was the sole member and manager. There is no evidence establishing that after the resignation in January 2010, Debtor worked as an employee of IPM or served any role with IPM. IPM was engaged in the property management and maintenance business. For a number of years prior to July 2007, the Kersteins used IPM as the property manager for several of their real estate investment properties. IPM found and dealt with tenants, took and held security deposits, paid the expenses associated with the properties including maintenance and repair, and accounted for the cash in and out through monthly statements. On July 31, 2007, the Kersteins entered into a new,, written management agreement with IPM. Ex. 102. Debtor signed that property management agreement on behalf of IPM. Debtor acknowledged in his testimony that, up to his resignation in January 2010, he was the “point person” in the IPM property management business, .including in its dealings with the Kersteins.' Mr. Kerstein testified that he had been referred to.Debtor’s business by a previous property manager who was retiring. He stated he placed trust in individuals, not their corporations, and he relied on that former property manager’s representations about Debtor’s honesty. He felt he was working with Debtor, even though the contract was with IPM. Mr. Kerstein testified that, at some ill-defined point, the statements received from IPM triggered concerns on his part. It appeared the properties were not performing, and the revenues from the rentals were dropping. And it seemed that bills associated with the properties were not being paid. Workers and vendors started to demand direct payment from him, and some threatened to file liens on his properties. Mr. Kerstein received a letter from IPM on September 13, 2010, detailing multiple outstanding “back charges” allegedly due to IPM. IPM asserted the total account balance was a “negative” $148,224.38 (meaning the Kersteins owed IPM that amount). Ex. 205. Discussions to address the matter were unsuccessful. The Kersteins elected to terminate the management contract. IPM then “offset” over $140,000 owed by the Kersteins against amounts IPM owed to the Kersteins. IPM failed to transfer tenant security deposits to the Kersteins’ replacement property manager. In May 2011, the Kersteins filed suit in Idaho state court against IPM, Debtor, and Taylor Miller. Ex. 201. They asserted claims for breach of contract, breach of implied covenants of good faith and fair dealing, fraud, breach of fiduciary duty and an accounting. The prayer of the complaint sought judgment against IPM on the breach of contract and breach of implied covenant causes of action. It sought judgment against all the defendants, jointly and severally, on the causes of action for fraud and breach of fiduciary duty. Ex. 105 at 8-9. The defendants, collectively and through a single attorney, answered and IPM asserted a counterclaim for breach of contract and unjust enrichment related to the amounts allegedly owed by the Kersteins. Ex. 202. In May 2012, following mediation, the disputes among all parties were settled. A “settlement agreement and mutual release” was prepared and executed by the parties on May 10. Ex. 110. The “defendants” (IPM, Taylor Miller and Debtor) collectively agreed to pay the Kersteins $50,000. Id. at 1 (“Defendants shall make a total payment in the amount of Fifty Thousand Dollars ($50,000.00) to Plaintiffs.”) In return for such payment, all parties released all claims or demands. Under the agreement, the Kersteins did not pay anything to IPM, Debtor or Taylor Miller. The agreement called for payment by certified check the following day. The Kersteins received a May 11, 2012 cashier’s'check for the settlement amount. Ex. 111. The funds for the settlement were generated in the following fashion. A $40,000 check dated May 9, 2012, was issued and made payable to Debtor personally. That check was drawn, by Debt- or, on a Key Bank account in the name of “Miller Commercial Real Estate,” which was a “dba” of Debtor. Exs. 107, 108. Debtor deposited this check in a Wells Fargo Bank account. That account was a business checking account in the name of “Miller Real Estate Services, LLC,” Debt- or’s limited liability company. Ex. 109. When the $40,000 deposit occurred on May 9, this account had a substantial preexisting balance. Thus, Debtor was able to withdraw $50,000 on May 11, which was the source of the cashier’s check, Ex. Ill, used in the settlement. After the $50,000 settlement payment was made, Debtor drew $15,000 from the Miller Commercial Real Estate Key Bank account. The check was dated May 30, 2012, and it was deposited in the MRES Wells Fargo account the same day. Exs. 107-109. Debtor testified that even though he felt he had no personal liability to the Ker-steins, especially after resigning in early 2010, his attorneys advised him differently. In further explaining why he gathered the funds used in settlement, Debtor testified that his son also had serious medical issues and so he also, “as a father,” wanted to get the case settled. Debtor and his wife filed for joint chapter 7 relief about a year and a half later. In answering question 10 on their statement of financial affairs, which calls for identification of all transfers within two years of the October 30, 2013 petition date, Debtors did not disclose the $50,000 paid on May 11, 2012 in settlement of the Ker-steins’ lawsuit. Ex. 101. Debtor testified that the assets and liabilities listed in the bankruptcy schedules in October 2013 would have been roughly the same in May 2012, when the settlement with the Kersteins occurred. Debtor explained that the value of their home might have been “slightly higher or about the same,” and Debtors owned no other real estate at that time. They did exchange one vehicle for another, selling a GMC Yukon in October 2013 and gaining a BMW, but with no net gain. Beyond such minor variations, he stated that the number and value of assets in May 2012 was about the same as on the petition date. Debtor also indicated that their liabilities were about the same at both points. The amount of debt at bankruptcy was approximately $708,000. Schedule F includes numerous creditors asserting claims against Debtors for IPM-related liabilities. See Ex. 101. However, even excluding those creditors (all of whom were scheduled as disputed, contingent and unliqui-dated), Debtor testified that in 2012, they owed one law firm close to $24,000 and another about $37,500. There was a $425,000 line of credit owed to Key Bank on a 2010 short sale. And there was a $41,000 liability on a co-signed equipment lease to another bank. These amounts alone exceed $525,000, far outweighing the approximately $28,400 of equity Debtors had in real estate and the aggregate value of their personal property. DISCUSSION AND DISPOSITION Trustee’s action is brought under § 548(a)(1)(B). Trustee prays that, under this section, the transfer of $50,000 to the Kersteins on May 11, 2012, be avoided and recovered from them under § 550(a) for the benefit of Debtors’ estate. This Court summarized: There are multiple elements that must be established by a plaintiff to sustain a cause of action under § 548(a)(1)(B). There must be a “transfer” of property of the debtor that occurs within two years of the filing of the bankruptcy petition. The debtor must have received less than “reasonable equivalent value in exchange for the transfer” and the transfer had to have occurred when the debtor was insolvent or the debtor had to be rendered insolvent as a result of the transfer. Plaintiffs bear the burden of proving all these elements in order to recover under § 548. Jordan v. Kroneberger (In re Jordan), 392 B.R. 428, 440 (Bankr.D.Idaho 2008) (citing Krommenhoek v. Natural Res. Recovery, Inc. (In re Treasure Valley Opportunities, Inc.), 166 B.R. 701, 703 (Bankr.D.Idaho 1994)). Trustee bears the burden of establishing all the § 548(a)(1)(B) elements. Id.; Murietta v. Fehrs (In re Fehrs), 391 B.R. 53, 73 (Bankr.D.Idaho 2008). A. Insolvency Insolvency is defined in. § 101(32)(A) as a “financial condition such that the sum of such [debtor]’s debts is greater than all of such [debtorj’s property, at a fair valuation^]” A “balance sheet” standard applies in § 548(a) litigation. See Sampson v. Western Capital Partners, LLC (In re Blixseth), 514 B.R. 871, 880-81 (D.Mont.2014) (citing In re Koubourlis, 869 F.2d 1319, 1321 (9th Cir.1989)). As shown by the evidence outlined above, Trustee met his burden of proving Debtors’ insolvency on May 11, 2012, the date of the challenged transfer. B. Transfer The Code broadly defines transfer in § 101(54) as every “mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with — (i) property, or (ii) with an interest in property.” Trustee bears the initial burden to demonstrate that Debtors made a transfer within two years of filing that is avoidable and recoverable from a defendant transferee. Trustee’s complaint puts at issue the cashier’s check of $50,000 received by the Kersteins on May 11, 2012. In doing so, Trustee focused on the May 9 $40,000 check and the May 30 $15,000 check. Neither of these checks was tendered or transferred to the Kersteins. Indeed, the $15,000 check was written on the Key Bank account and deposited in the Wells Fargo account on May 30, almost three weeks after the cashier’s check was delivered to the Kersteins on May 11. As noted, the Key Bank account was in the name of Miller Commercial Real Estate, a “dba” for Debtor. The Key Bank funds were, therefore, Debtors’ personal funds. The $40,000 May 9 check from that account was deposited in the MRES Wells Fargo account. The $40,000 was commingled in the MRES account with other LLC funds. After several transactions, the cashier’s check was issued out of the MRES Wells Fargo account and used in the May 11 settlement with the Kersteins. Trustee gives superficial attention to the fact that the funds transferred to the Ker-steins came out of this LLC account. In briefing (and in mistakenly arguing that the intervening entity was IPM), Trustee emphasized the sequence: that the $40,000 (and the later $15,000) originated in Debtors’ account, was transferred to. the entity, and the entity “[ajlmost immediately” issued the cashier’s check to the Kersteins. This overview ignores the timing of the transactions. MRES had substantial funds in its business checking account on May 9, 2012. There was a pre-existing $35,570.94 balance when the $40,000 check was deposited. And later the same day an additional $12,301.84 was deposited. While Trustee emphasizes that $40,000 came from Debt- or’s account, the prior balance and the other deposits totaling $47,872.78 was not shown to have a similar source. And other MRES banking activity occurred after the $40,000 deposit and before the $50,000 cashier’s check was issued. MRES was formed as a limited liability company in February 2011. Pursuant to Idaho law, a limited liability company is “an entity distinct from its member or members.” Idaho Code § 30-25-108(a) (effective July 1, 2015; formerly codified at I.C. § 30-6-104(1)). Debtor testified that MRES continued to conduct its property management business after 2012 until March 31, 2015, and regularly deposited approximately $25,000 per month into the Wells Fargo account. Funds (ie., $40,000) went from Debtor (via check on the Key Bank “dba” account) to Miller Real Estate Services, LLC (via deposit into the Wells Fargo account) on May 9. The transferor (Debtor) and the transferee (MRES) were separate entities, and Trustee presented no evidence to the contrary. The MRES account not only had an outstanding balance, but other funds went into, and came out of, that account. And, because the $15,000 check was drawn and deposited weeks later, some-.portion of the $50,000 that was used to acquire the cashier’s check clearly was not traceable or attributable to any transfer from Debtor’s Key Bank account. A transfer clearly occurred from Debtor to MRES. However, MRES was the transferor of the $50,000 to the Kersteins at issue in this action. The Kersteins raise this issue, ie., that they were not the “initial” transferees, as well as arguments regarding limitations on a trustee’s power of recovery under § 550(a) and (b) from immediate or mediate transferees. Trustee’s position is that the transfer to MRES “was for the benefit of’ the Kersteins and thus Trustee pursues recovery from them on that basis under the language of § 550(a)(1), and not as the “initial” transferee under such section, nor as immediate or subsequent transferees under § 550(a)(2). That approach, however, neglects the fact that at least some part of the $50,000 sought by Trustee in this proceeding was not shown to have originated in a transfer from Debt- or at all. By May 11, Debtor had transferred only $40,000 from the Key Bank account to the MRES Wells Fargo account. Moreover, given the other funds in, and activity in, that MRES Wells Fargo account, Trustee did not prove what portion of the $40,000 was used “for the benefit” of the Kersteins. The Court, however, sees no reason to belabor the analysis here, because Trustee must establish all elements of the cause of action, and he has failed to do so. C. Reasonably equivalent value Jordan discusses at length the element of reasonable equivalence. 392 B.R. at 441-47. “The key to th[e] matter is determining the value received by Debtors in exchange for the [property or] interest they transferred to Defendant.” Id. at 441. Thus, here, the key is determining what Debtor received in return for a maximum of $40,000 transferred on May 9 which, Trustee asserts, was “for the benefit of’ the Kersteins. Jordan holds that indirect benefits as well as direct benefits may constitute value if sufficiently concrete and identifiable. Id. at 442. In evaluating what was exchanged in a quid pro quo transaction, “[reasonable equivalence can clearly include the elimination of claims or litigation.” Id. The Kersteins’ state court complaint generally alleged damages under each of the four causes of action “in excess of $25,000, the exact amount of which will be proven at trial.” Debtor testified that the Kersteins “settled a $140,000 claim for $50,000,” and that IPM waived a $130,000 claim asserted against the Kersteins. And, while the Kersteins accepted the mediated settlement, Mr. Kerstein acknowledged the $50,000 did not come close to covering the vendors’ and tenants’ claims he faced that he felt were Debtor’s and IPM’s responsibility. The settlement here, like most, was not an outright victory for either side. It was the result of mediated resolution of ongoing litigation. There was nothing to suggest the settlement was anything other than an arms-length resolution of contested factual and legal issues. Trustee argues that, at least in his view, Debtor’s exposure in the state court lawsuit was minimal and, thus, the settlement of the litigation cannot support the reasonableness of the transfer. He focuses on the fact that, as of January 2010, Debtor had resigned from IPM and the disputes with the Kersteins arose thereafter. This focus ignores the genesis of the Kersteins’ claims, and those of IPM against the Kersteins, which substantially related to times when Debtor was the owner and “point man” for IPM. The alleged misuse of tenant security deposits were not shown to relate to solely post-December 2009 lessees or funds. Nor were the assertions of fraud in financial reporting and the treatment of property maintenance and expenses similarly limited in time. The breach of fiduciary duty claims and fraud claims against Debtor were pending as of the mediation. Even if Trustee, from his blinkered perspective, feels the Kersteins’ complaints against Debtor lacked heft, they were not without some foundation, and they were interrelated to the claims against Taylor Miller and IPM. Moreover, the Kersteins sought to have all the state court defendants held jointly and severally liable. And those defendants incurred substantial fees in defense. Jordan noted the applicability of the analysis of the court in Schaps v. Just Enough Corp. (In re Pinto Trucking Service, Inc.), 93 B.R. 379 (Bankr.E.D.Pa.1988). See 392 B.R. at 443. Schap noted: While it is true that a totally groundless claim or a non-dispute may not constitute consideration, the courts will not look at the underlying merits of a compromise very critically to determine its worth. “The sufficiency of the consideration for a compromise is not to be determined by the soundness of the original claim of either party. The very object of that compromise is to avoid the risk or trouble of that question.” 93 B.R. at 389 (citations omitted). Trustee bore the burden of proving that, if Debtors were deemed to have made a transfer to or “for the benefit of’ the Kersteins, Debtors did not receive reasonably equivalent value. The many-hued factors affecting a determination of value and of reasonable equivalence are set out at length in Jordan. Applying those factors and principles to the evidence here, the Court concludes Trustee did not carry his burden on this element. CONCLUSION Trustee failed to meet the burden of establishing all elements required to avoid the subject transfer under § 548. Judgment will be entered for the defendants Chester and JoAnn Kerstein. . Unless otherwise indicated, statutory references are to the Bankruptcy Code, Title 11, U.S.C. §§ 101-1532, and rule references are to the Federal Rules of Bankruptcy Procedure. . Debtor is married. He and his wife, Nancy, filed a joint petition. Debtor testified; his wife did not. The debtors' schedules establish their assets are all community property, as are most of their debts. (Some debts are shown as "H” or "W" but the record lacks evidence that they are separate rather than community obligations.) References to “Debtor” in this Decision are to Mr. Miller. Those references generally are to reflect his testimony or conduct established by testimony, and use of the singular is not intended to suggest personal, rather than community, obligations or assets. . The testifying witnesses and the admitted exhibits are reflected in the Court’s minute entry, Doc. No. 19. . The Court has jurisdiction over this proceeding under 28 U.S.C. §§ 1334 and 157. As reflected by the Pretrial Order entered in this case, Doc. No. 8, till parties have expressly consented to this Court entering final orders and judgment in this proceeding on all matters, including those that are non-core or those that are statutorily core but are or may be argued to be outside the constitutional authority of this Court (i.e., so-called "Stem claims”). Wellness Int'l Network, Ltd. v. Sharif, - U.S. -, 135 S.Ct. 1932, 191 L.Ed.2d 911 (2015). . Taylor Miller testified that Debtor effectively "gifted” his ownership interests at that time. . CCK Investments ("CCK”) was identified as the party that entered into the written agreement with IPM. CCK was not shown to be a corporation, limited liability company or other entity. The Kersteins’ state court complaint against Debtor, IPM and Taylor Miller alleged that CCK was the Kersteins’ assumed business name. Ex. 105. . Some of the charges referenced items alleged to have accrued in 2010. However, one charge was calculated from 2007, two of the charges started in 2008, and one referenced accruals from 2002 through 2010. The totals of these several itemized charges is $184,649 and does not reconcile to the alleged "negative” account balance claimed. Id. There were other bills and statements to the Ker-steins detailing account activity and amounts allegedly owed in addition to Ex. 205. See Exs. 206, 208. . Debtor did acknowledge "bumping into” Mr. Kerstein at one point after the resignation, due to the adjacent office arrangement. Debtor also stated that he and his son, Taylor Miller, met the Kersteins for coffee in the fall or winter of 2010, but could not recall if the financial demands were then discussed. There was no evidence that IPM ever sent a copy of the January 2010 resignation letter, or any other notification of the termination of Debtor’s relationship with or authority over IPM, to any of IPM’s clients, including the Kersteins. . The allegations sounding in fraud alleged that the defendants, collectively, caused financial reports to be issued that contained material omissions and material misstatements of fact, with the defendants’ knowledge, and with the intent that the Kersteins rely on them. Ex. 105 at 6-7. . The allegations regarding this cause of action asserted that each individual defendant, as well as IPM, was a fiduciary (primarily regarding security deposits) and all breached their respective fiduciary duties. Ex. 105 at 4-5. . The answer asserts that the Kersteins ceased using IPM’s services on some properties in March 2010, and that they terminated the management agreement in August 2010. . Debtor and Taylor Miller filed a motion for summary judgment seeking to be dismissed from the case on April 30, 2012. Ex. No. 106. The state court never addressed the summary judgment motion because the parties elected to mediate and, on May 11, 2012, filed a stipulation with the state court to dismiss the action with prejudice. . Mr. Kerstein testified that he had exposure to unpaid vendors on his properties, and to tenants for security deposits, in a total amount greater than the $50,000 he received. Nevertheless, he and his wife settled. . The account uses the full name of that LLC, and is denoted as an “Advantage Business-Package Checking” account. Id. . On May 8, there was a $35,570.94 balance in the Miller Real Estate Services, LLC account at Wells Fargo Bank. On May 9, the above-mentioned $40,000 check was deposited, as was another $12,301.84 deposit from what Debtor characterized as MRES rent receipts. This effectively established a balance of $87,872.78. On May 9, checks and a point of sale purchase reduced the balance of the account to $62,113.24. (The account statement shows such details plus daily ending balances.) On May 11, after a check card purchase, a point-of-sale purchase and a small withdrawal, there was an effective balance of $62,046.01. From this balance the $50,000 cashier’s check was obtained, leaving a balance of $12,046.01. Ex. 109 at 2. . Debtor and IPM hired Perkins Coie to file the answer and counterclaim in state court, Ex. 202, and Perkins Coie was counsel of record until a March 2012 substitution of another firm, Moffatt Thomas. See Ex. 106 (Idaho case repository docket). Debtors’ schedules show claims of $37,298.69 and $24,680 asserted by the two law firms respectively. The state court docket, and the amount of the legal bills, reflect the nature and magnitude of the settled litigation. . However, Debtors did disclose the Ker-steins’ lawsuit in response to question 4, and indicated that action was “dismissed after settlement.” Id. That response also identified several other lawsuits in which Debtor, Taylor Miller and IPM were all named as defendants. . Debtors' schedule D shows $63,712.00 in secured real estate debt and their schedule F shows a total of $644,643.09. . Debtors' schedule A indicates they own a 50% interest in real estate, and their son owns the balance. The alleged equity of $56,788 (value of $120,500 less secured debt of $63,712) is thus divided in half to determine Debtors’ equity interest. .The § 544(b) cause of action pleaded, see Doc. No. 1 at 5, echoes that under § 548. Trustee did not focus any written or oral argument on the Idaho state law made applicable under § 544(b) outside of a footnote in briefing indicating "the standards ... are not significantly different” from those under § 548. Doc. No. 14 at 3 n.l. Ordinarily, § 544(b) is used to provide a plaintiff trustee with a longer avoidance period than the two years provided under § 548(a)(1). That was unnecessary here.

4136198-21019

OPINION REGARDING CONSTITUTIONALITY OF MICHIGAN BANKRUPTCY SPECIFIC EXEMPTIONS JAMES D. GREGG, Chief Judge. I. FACTS AND PROCEDURAL BACKGROUND. On May 8, 2008, Sharon Kay Pontius (“Debtor”) filed a petition for relief under chapter 7 of the Bankruptcy Code. In Schedule A, the Debtor lists among her assets a fee simple interest in a house and lot in Kalamazoo, Michigan (the “Property”). The Debtor values the Property at $70,000 and alleges it is encumbered by a mortgage and a tax lien totaling $26,415. The Debtor is unmarried. The Debtor seeks to exempt $31,900 of the value of the Property as her homestead. The Debtor relies upon Mich. Comp. Laws Ann. § 600.5451(l)(n), which reads as follows: Sec. 5451(1) A debtor in bankruptcy under the bankruptcy code, 11 USC 101 to 1330, may exempt from property of the estate property that is exempt under federal law or, under 11 USC 522(b)(2), the following property ... (n) The interest of the debtor, the co-debtor, if any, and the debtor’s dependents, not to exceed $34,500 in value or, if the debtor or a dependent of the debtor at the time of the filing of the bankruptcy petition is 65 years of age or older or disabled, not to exceed $51,650 in value, in a homestead. § 600.5451(l)(n) (emphasis added). Thomas R. Tibbie, the chapter 7 trustee (“Trustee”), objected to the Debtor’s exemption on the basis that § 600.5451, as “bankruptcy specific” legislation, is unconstitutional in violation of the Supremacy Clause because it impermissibly infringes on Congress’ exclusive right to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Const, art. I, § 8, cl. 4 (the “Bankruptcy Clause”). As required by Bankruptcy Rule 9005.1 and 28 U.S.C. § 2403, notice was given to the Michigan Attorney General of the Trustee’s constitutional challenge to § 600.5451. The Attorney General did not respond, made no appearance at the hearing, and submitted no legal position. II.ISSUE. The issue is straightforward. Is the “bankruptcy specific” exemption set forth in § 600.5451 unconstitutional or not? III.JURISDICTION. The Trustee has timely objected to the exemption claimed by the Debtor. Fed. R. Bankr.P. 4003(b). The court has jurisdiction of this contested matter. 28 U.S.C. § 1334 and the Local Rule 83.2(a) (W.D.Mich.) (referring bankruptcy cases and related matters as authorized by 28 U.S.C. § 157(a)). The objection to the Debtor’s exemption is a core proceeding. 28 U.S.C. § 157(b)(2)(A), (B) and (E). The Trustee has the burden of proving that the claimed exemption is improper. Fed. R. Bankr.P. 4003(c). IV.DISCUSSION. The route by which the Michigan Legislature concluded that it could enact exemptions which would apply only in a federal bankruptcy case is murky. In 2001, an Advisory Committee to the Civil Law and Judiciary Subcommittee of the House Civil and Judiciary Committee of the Michigan Legislature (“Advisory Committee”) was formed “to review and, if appropriate, provide recommendations to update the property exemption laws.” The Advisory Committee labored for two years before issuing a Report and Recommendations to the Subcommittee (“Report and Recommendations”). The Report and Recommendations suggested many changes to the general Michigan exemption statute, § 600.6023, including an increase in the $3,500 Michigan homestead exemption to $30,000 ($45,000 if the debtor or a dependent of the debtor was over 65 or disabled). The Report and Recommendations did not recommend limitation of these new exemptions only to bankruptcy proceedings. Report and Recommendations of the Advisory Committee to the Civil Law and Judiciary Subcommittee of the House Civil and Judiciary Committee Regarding Proposed Modifications to the Michigan Exemption Statutes, the Purpose and Policy of Michigan Exemption Laws (August 11, 2003). With few changes, the new exemptions suggested by the Report and Recommendations were adopted by the Michigan Legislature in 2004, to be effective on January 3, 2005, as § 600.5451. However, the Legislature limited the application of the law only to proceedings involving “[a] debtor in bankruptcy under the Bankruptcy Code. ” Applying the new statutory exemptions only to federal bankruptcy proceedings was without explanation in either the legislative history or the Advisory Committee records. Winnifred P. Boylan & Melanie R. Beyers, The Trek of Michigan Exemptions in the Universe of Bankruptcy, 33 Michigan Real Property Review 85, 85-92 (Summer 2006). Although the legislative method by which the Michigan Legislature adopted its “bankruptcy specific” exemptions seems out of the ordinary, other states have also adopted exemptions intended to only apply in federal bankruptcy cases. Not surprisingly, these state exemption laws have generated a spate of litigation concerning their constitutionality. A number of courts have determined such “bankruptcy specific” exemption schemes to be unconstitutional as violating the Supremacy Clause, U.S. Const. art. VI, cl. 2, and infringing upon Congress’ exclusive right to enact “uniform Laws on the subject of Bankruptcies.” The Bankruptcy Clause, U.S. Const. art. I, § 8, cl. 4; see, e.g., In re Regevig, 389 B.R. 736 (Bankr.D.Ariz.2008) (invalidating California’s “bankruptcy specific” exemptions); In re Cross, 255 B.R. 25 (Bankr.N.D.Ind. 2000) (determining unconstitutional Indiana’s “bankruptcy specific” exemptions); In re Mata, 115 B.R. 288 (Bankr.D.Colo.1990) (concluding that Colorado’s “bankruptcy specific” exemptions were unconstitutional); In re Reynolds, 24 B.R. 344 (Bankr.S.D.Ohio 1982) (upholding a constitutional challenge to Ohio’s “bankruptcy specific” exemptions); see also Kanter v. Moneymaker (In re Kanter), 505 F.2d 228 (9th Cir.1974) (holding unconstitutional a California statute that sought to prohibit a bankruptcy trustee from acquiring an interest in a debtor’s personal injury action, while allowing judgment creditors to obtain a lien on the debtor’s cause of action outside of bankruptcy). One of the bankruptcy judges in this district, Judge Hughes, previously determined § 600.5451 to be unconstitutional. In re Wallace, 347 B.R. 626 (Bankr.W.D.Mich.2006). A number of commentators also have questioned the constitutionality of such state “bankruptcy specific” legislation. See, e.g., Joseph Lamport, Note, The Preemption of Bankruptcy-Only Exemptions, 6 Cardozo L.Rev. 583, 586 (1985); 4 Collier on Bankruptcy ¶ 522.02[4] (15th ed., rev.2008); 3 Norton Bankr.Law & Practice 3d § 56:3 at n. 11 (2008). To the contrary, a number of other courts have upheld the constitutionality of state “bankruptcy specific” exemption schemes. See, e.g., In re Brown, No. 06-30199; 2007 WL 2120380 (Bankr.N.D.N.Y. July 23, 2007) (upholding New York’s “bankruptcy specific” exemptions), aff'd, No. 07-cv-0856, 2007 WL 4560671 (N.D.N.Y. Dec.18, 2007); In re Shumaker, 124 B.R. 820 (Bankr.D.Mont.1991) (upholding a Montana statute exempting Individual Retirement Accounts only for bankruptcy debtors); In re Vasko, 6 B.R. 317 (Bankr.N.D.Ohio 1980) (upholding Ohio’s “bankruptcy specific” exemptions). Very recently, the Fourth Circuit Court of Appeals upheld West Virginia’s “bankruptcy specific” exemptions. Sheehan v. Peveich (In re Peveich), 574 F.3d 248 (4th Cir. 2009), aff'g, In re Morrell, 394 B.R. 405 (Bankr.N.D.W.Va.2008). This court is certainly cognizant of the admonition that it should not decide a constitutional issue unless it is absolutely compelled to do so. “It is a fundamental rule of judicial restraint ... that this Court will not reach constitutional questions in advance of the necessity of deciding them.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 138, 157, 104 S.Ct. 2267, 2279, 81 L.Ed.2d 113 (1984); see also Spector Motor Service v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944); Blair v. United States, 250 U.S. 273, 279, 39 S.Ct. 468, 470, 63 L.Ed. 979 (1919); Crook v. Baker, 813 F.2d 88, 91 (6th Cir.1987). This judge has previously determined it unnecessary to rule upon the constitutionality of § 600.5451. In re Basch, 341 B.R. 615 (Bankr.W.D.Mich.2006) (because the debtor there had the ability to amend his entireties property exemption so as to exempt the same Michigan real property under a ■reoti-“bankrupt-cy specific” Michigan exemption statute). In contrast, in the exemption objection now raised by the Trustee, this court is unable to avoid the constitutional question. Unlike the situation in Basch, the Debtor is unmarried and cannot claim § 600.6023a, a general exemption, which applies only to entireties property. This court, therefore, must address the constitutionality of § 600.5451. For the reasons below, the court determines § 600.5451 to be unconstitutional on at least two grounds. A. May Congress Constitutionally Delegate Its “Bankruptcy Power” to the States? The cases which uphold the constitutionality of state “bankruptcy specific” exemption schemes generally reason that Congress, in passing 11 U.S.C. § 522(b)(1), delegated to the states the authority to restrict their residents to state exemptions; therefore, 11 U.S.C. § 522(b)(1) is an “express delegation to the states of the power to create state exemptions in lieu of the federal bankruptcy exemption scheme.” Sheehan v. Peveich, 574 F.3d 248, 252 (4th Cir.2009). However, such reasoning immediately raises another legal question. May Congress constitutionally delegate to a state legislature the power to enact a portion of a federal law, the Bankruptcy Code? The Constitution grants Congress the power to “establish ... uniform Laws on the subject of Bankruptcies.” The Bankruptcy Clause, U.S. Const. art. I, § 8, cl. 4. Court opinions which uphold state “bankruptcy specific” exemptions reason that, in enacting 11 U.S.C. § 522, Congress made an “express delegation” to the states to enact laws which operate solely in bankruptcy proceedings. The downfall of this “express delegation” rationale is that it is unconstitutional. The Supreme Court has consistently held that Congress may not constitutionally delegate its legislative power. “It does not admit of argument that [Cjongress can neither delegate its own powers, nor enlarge those of a state.” Wilkerson v. Rahrer, 140 U.S. 545, 560, 11 S.Ct. 865, 869, 35 L.Ed. 572 (1891). “Congress cannot transfer its legislative power to the states — by nature this is nondelegable.” Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 164, 40 S.Ct. 438, 441, 64 L.Ed. 834 (1920) (citing Wilkerson, 140 U.S. at 560, 11 S.Ct. at 869; Marshall Field & Co. v. Clark, 143 U.S. 649, 692, 12 S.Ct. 495, 504, 36 L.Ed. 294 (1892); Buttfield v. Stranahan, 192 U.S. 470, 496, 24 S.Ct. 349, 355, 48 L.Ed. 525 (1904); Butte City Water Co. v. Baker, 196 U.S. 119, 126, 25 S.Ct. 211, 213, 49 L.Ed. 409 (1905); Interstate Commerce Comm’n v. Goodrich Transit Co., 224 U.S. 194, 214, 32 S.Ct. 436, 441, 56 L.Ed. 729 (1912)). The Knickerbocker Ice decision is especially instructive. That case involved federal maritime law which, like the law on “Bankruptcies,” is reserved under the Constitution to the United States. The Supreme Court stated that “Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country.” Knickerbocker Ice, 253 U.S. at 158, 40 S.Ct. at 439 (quoting Southern Pacific Co. v. Jensen, 244 U.S. 205, 215, 37 S.Ct. 524, 528, 61 L.Ed. 1086 (1917)). The Court then found that Congress had attempted to delegate a portion of its legislative function by authorizing states to enact workers compensation laws applicable in maritime proceedings. Because the Court recognized that maritime law was within the sole power of Congress, the power could not be constitutionally delegated. The subject was entrusted to it [Congress] to be dealt with according to its discretion — not for delegation to others. To say that, because Congress could have enacted a compensation act applicable to maritime injuries, it could authorize the states to do so, as they might desire, is false reasoning. Moreover, such an authorization would inevitably destroy the harmony and uniformity which the Constitution not only contemplated, but actually established — it would defeat the very purpose of the grant. Congress cannot transfer its legislative power to the states — by nature this is nondelegable. Knickerbocker Ice, 253 U.S. at 164, 40 S.Ct. at 441 (citation omitted). To interpret 11 U.S.C. § 522 as a conscious delegation by Congress of its exclusive power to enact bankruptcy laws would render a portion of § 522 of the Bankruptcy Code unconstitutional. “The fundamental precept of the delegation doctrine is that the lawmaking function belongs to Congress, U.S. Const. art. I, § 1, and may not be conveyed to another branch or entity.” Loving v. United States, 517 U.S. 748, 758, 116 S.Ct. 1737, 1744, 135 L.Ed.2d 36 (1996) (citing Marshall Field & Co. v. Clark, 143 U.S. 649, 692, 12 S.Ct. 495, 504, 36 L.Ed. 294 (1892)). “As Hamilton, Story, and the other early interpreters make clear, the uniformity provision [of the Bankruptcy Clause] was intended to grant exclusive power to the federal government.” Hood v. Tennessee Student Assistance Corp. (In re Hood), 319 F.3d 755, 765 (6th Cir.2003), aff'd and remanded, 541 U.S. 440, 124 S.Ct. 1905, 158 L.Ed.2d 764 (2004). This court recognizes, as noted above, that before declaring § 522 to be unconstitutional, “every reasonable presumption must be indulged in favor of the validity of such enactment.” Sweet v. Rechel, 159 U.S. 380, 392-93, 16 S.Ct. 43, 46, 40 L.Ed. 188 (1895). If 11 U.S.C. § 522 is read narrowly as authorizing only those non-federal exemptions that states extend generally to debtors within their jurisdiction, the constitutional question is avoided. Section 522 of the Bankruptcy Code certainly does not explicitly state that Congress is delegating to the states the right to enact the federal bankruptcy laws. This court declines to find that Congress implicitly did so by passing § 522. This court agrees with the compelling explanation that: Put differently, it is within Congress’ discretion under the Bankruptcy Clause to decide what is to be the set of exemptions available to debtors seeking bankruptcy relief. Congress can create its own scheme. It can establish more than one scheme. It can reference state law for purposes of defining the scheme it has chosen What Congress cannot do under the Constitution is delegate ... to the states, or to any other entity the power to actually decide what is to be the appropriate scheme. That power is reserved under the [United States] Constitution for the exclusive exercise of Congress. In re Wallace, 347 B.R. at 635. In enacting § 600.5451, the Michigan Legislature attempted to write a portion of the Bankruptcy Code. Congress is constitutionally prohibited from delegating its “Bankruptcy Power” to any state, including Michigan. Because Michigan passed bankruptcy specific exemptions without authority to do so, those exception statutes are unconstitutional. B. May Congress Adopt “Non-Uniform” Bankruptcy Laws? A second, and equally compelling, reason exists why the Michigan statute is unconstitutional. The Bankruptcy Clause of the Constitution grants Congress the power to “establish ... uniform Laws on the subject of Bankruptcies throughout the United States.” The Bankruptcy Clause, U.S. Const, art. I, § 8, cl. 4. (emphasis added). Relying on an older Supreme Court decision, the Sixth Circuit has recently noted: What distinguishes these “peculiar terms” from the other Article I powers is the concept of uniformity, which, as Chief Justice Marshall noted nearly two centuries ago, “deserve[s] notice. Congress is not authorized merely to pass laws, the operation of which shall be uniform, but instead to establish uniform laws on the subject [of bankruptcy] throughout the United States.” Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193-94, 4 L.Ed. 529 (1819). Schultz v. United States, 529 F.3d 343, 350 (6th Cir.2008). Therefore, whether a bankruptcy law is passed directly by Congress or passed indirectly by the Michigan Legislature, assertedly as the “delegate” of Congress, such law must be “uniform” to be constitutional. Section 600.5451, and indeed all other “bankruptcy specific” state legislation, fails the uniformity requirement. The predecessor of the current Bankruptcy Code was the Bankruptcy Act of 1898. That act contained no federal exemptions but, rather, allowed to bankrupts “the exemptions which are prescribed by the state laws in force at the time of the filing of the petition in the state wherein they [the debtors] have had their domicile for ... six months.... ” Bankruptcy Act of 1898, ch. 541, § 6, 30 Stat. 544. Almost immediately after the effective date of the old Bankruptcy Act, it was argued that the exemption provision was incompatible with the rule of uniformity. Hanover Nat’l Bank v. Moyses, 186 U.S. 181, 188, 22 S.Ct. 857, 860-61, 46 L.Ed. 1113 (1902) {“Hanover”). Rejecting the argument, the Supreme Court addressed the uniformity rule and established that “uniformity” within the bankruptcy context is geographic uniformity. The laws passed on the subject must, however, be uniform throughout the United States, but that uniformity is geographical, and not personal, and we do not think that the provision of the act of 1898 as to exemptions is incompatible with the rule. Id. This concept of geographical uniformity has consistently been applied since Hanover to interpret the validity of provisions of the 1898 Bankruptcy Act and the current Bankruptcy Code. See, e.g., Railway Labor Executives’Ass’n v. Gibbons, 455 U.S. 457, 459, 102 S.Ct. 1169, 71 L.Ed.2d 335 (1982); Schultz, 529 F.3d at 350-51. Most importantly, however, the Supreme Court has given a precise holding of the interpretation of constitutional uniformity: We concur in this view, and hold that the system is, in the constitutional sense, uniform throughout the United States, when the trustee takes in each state whatever would have been available to the creditor if the bankruptcy] law had not been passed. Hanover, 186 U.S. at 190, 22 S.Ct. at 861 (emphasis added). The Michigan statute, § 600.5451, and all other “bankruptcy specific” state exemption schemes, accomplishes the opposite result. Their very purpose is to ensure that the bankruptcy trustee does not take whatever property “would have been available to the creditor” outside of bankruptcy. Applying the Supreme Court’s holding to this case, the Debtor is unmarried and she has elected state exemptions. On her schedules, she values the property as $70,000, subject to liens totaling $26,415, for an apparent net equity of $43,585. Outside of bankruptcy, a creditor could reach $40,085 of the Property’s value (the net equity less the $3,500 general homestead exemption pursuant to the Michigan Constitution). However, if the bankruptcy specific exemption in § 600.5451 applies, the Trustee may reach only $11,685 of the Property’s value (the net equity less the claimed bankruptcy specific homestead exemption of $31,900). Further, if the Debt- or was sixty-five years old or more, or disabled, § 600.5451 would prevent the Trustee from reaching any of the otherwise non-exempt value of the property. Section 600.5451 prevents a trustee from taking the same property “available to a creditor” outside a bankruptcy case. This is a direct contravention of the Supreme Court’s holding in Hanover. The continuing validity of the Supreme Court’s decision in Hanover cannot be questioned or distinguished by this court. The exact language quoted above from Hanover was very recently cited by the Sixth Circuit Court of Appeals. Schultz, 529 F.3d at 351 (citing Hanover in support of holding that BAPCPA “means test” does not violate uniformity requirement despite fact that calculations are based, in part, on state and county where debtor resides). The Sixth Circuit has repeatedly cautioned that the power to pass bankruptcy laws is granted to Congress exclusively and “[b]y granting the power to Congress exclusively, the Constitution prevented runaway states from defeating bankruptcy’s goals.” In re Hood, 319 F.3d at 764-65. Also, [A]t the time of the Constitutional Convention, the fear was not, at least in the bankruptcy context, of Congress discriminating in favor of or against a particular locality. Quite to the contrary, uniformity in the Bankruptcy Clause was viewed as a way to safeguard the nation’s interest in establishing and maintaining a single system of debt and credit without interference from the parochial or otherwise obstreperous action on the part of the fifty states. Schultz, 529 F.3d at 355 (citation omitted). Allowing the Michigan legislature, or any other state legislature, to pass “bankruptcy specific” exemption schemes would be to approve the “interference” and “parochial or otherwise obstreperous action” that the Supreme Court and the Sixth Circuit have prohibited.

9495151-12944

SELYA, Circuit Judge. In 1987, a Hampden County, Massachusetts grand jury indicted petitioner-appellant Trevor Neverson, a native of Trinidad, for the murder of his fifteen-month-old stepdaughter, Leshawna Wright. His first trial resulted in a court-ordered judgment of acquittal as to so much of the indictment as alleged first-degree murder. The trial judge sent the remaining charges (second-degree murder and the lesser included offense of manslaughter) to the jury. The jury deadlocked and the judge declared a mistrial. The petitioner’s subsequent attempts to terminate the case on grounds of evidentiary insufficiency and double jeopardy were unavailing. See Neverson v. Commonwealth, 406 Mass. 174, 546 N.E.2d 876 (Mass.1989) (affirming lower court rulings). On retrial, a new jury found the petitioner guilty of manslaughter. The trial judge sentenced him to serve a lengthy prison term. The conviction and sentence were affirmed on appeal. See Commonwealth v. Neverson, 35 Mass.App.Ct. 913, 619 N.E.2d 344 (Mass.App.Ct.1993), rev. de nied, 416 Mass. 1106, 622 N.E.2d 1364 (Mass.1993). On August 28, 1996, the petitioner repaired to the federal district court and filed an application for habeas corpus relief under 28 U.S.C. § 2254 (Petition No. 1). On December 24, 1996, the district court (O’Toole, J.) dismissed the petition without prejudice because it contained some unex-hausted claims. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (holding that a federal habeas court ordinarily should not adjudicate a “mixed” petition, i.e., one containing both exhausted and unexhausted claims); Adelson v. DiPaola, 131 F.3d 259, 261-62 (1st Cir.1997) (same). The petitioner initially filed a notice of appeal, but apparently thought better of it and withdrew the appeal on September 3,1997. In the meantime, the petitioner moved for a new trial in the state court. He filed his motion on July 11, 1997, but the state trial judge denied it, and the petitioner’s efforts to overturn that adverse ruling came to naught. See Commonwealth v. Neverson, 45 Mass.App.Ct. 1104, 699 N.E.2d 28 (Mass.App.Ct.1998) (table), rev. denied, 700 N.E.2d 544 (Mass.1998) (table). On August 17, 1998, the petitioner returned to the federal district court and filed the instant application for habeas relief (Petition No. 2). On October 13, 1998, the respondent, a state correctional official, moved to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1). The district court (Lindsay, J.) dismissed Petition No. 2 as untimely. The court simultaneously granted a certificate of appeala-bility (COA), 28 U.S.C. § 2253(c), on two issues: (1) Does the pendency in federal court of a prior dismissed habeas petition toll the statute of limitations for the purposes of a subsequent petition? (2) Does the filing of a subsequent habeas petition relate back to a prior petition which raised the same issues, but was dismissed without prejudice? The petitioner promptly perfected an appeal. After an initial round of pro se briefing, we appointed counsel and set a new briefing schedule. At about the same time, a new development occurred. The petitioner had entered the United States illegally in 1985. In 1994, the Immigration and Naturalization Service (INS) sought to deport him for this illegal entry. See 8 U.S.C. § 1227(a)(1)(B). Three years later, the INS lodged an additional charge based on his commission of an aggravated felony (the manslaughter conviction). See id. § 1227(a)(2)(A)(iii). The necessary administrative proceedings resulted in a finding of deportability and a denial of the petitioner’s applications for adjustment of status and/or waiver of deportability. The petitioner completed his term of immurement on the manslaughter conviction in the spring of 2000. Because the deportation proceedings were still hanging fire, the INS took him into custody. On August 31, 2000, the petitioner asked us for a stay of deportation. We granted the stay temporarily and agreed, in effect, to treat the INS as a provisional respondent in the pending appeal, so that a nettlesome issue — whether deportation would moot the petitioner’s habeas appeal — could be considered. Expedited briefing on this issue followed. Neverson’s appeal was consolidated for oral argument with a case containing a similar limitation issue, namely, Delaney v. Matesanz, 2001 WL 1001086, No. 99-1972 (1st Cir.2001). We heard oral argument in both cases on November 9, 2000. Four days later, the Supreme Court granted certiorari to review the decision of the United States Court of Appeals for the Second Circuit in Walker v. Artuz, 208 F.3d 357 (2d Cir.2000), cert. granted sub nom. Duncan v. Walker, 531 U.S. 991, 121 S.Ct. 480, 148 L.Ed.2d 454 (2000). Because that case squarely raised the question of whether 28 U.S.C. § 2244(d)(1)— the one-year limitation period enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996)— could be tolled by the pendency of federal as well as state post-conviction proceedings, we stayed both Neverson’s and Delaney’s pending appeals. The Supreme Court spoke on June 18, 2001, see Duncan v. Walker, 531 U.S. 991, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001), and we vacated the stay ten days later. We now resolve Neverson’s appeal (reserving Delaney’s case for treatment in a separate opinion). As all parties recognize, the AEDPA applies to this case. Congress enacted that statute on April 24, 1996, in part to combat increasingly pervasive abuses of the federal courts’ habeas jurisdiction. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). Among other things, the AEDPA imposed, for the first time, a limitation period applicable to state prisoners’ habeas applications. According to this provision, “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). This period of limitation normally begins to accrue on “the date on which the [state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). The petitioner’s manslaughter conviction became final before the AEDPA’s effective date. In respect to such convictions, we have construed the AEDPA to encompass a one-year grace period within which state prisoners may file federal habeas petitions testing the constitutionality of convictions that became final before the AEDPA’s effective date. Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir.1999) (per curiam); see also Duncan, — U.S. at - n. 1, 121 S.Ct. at 2130 n. 1 (Stevens, J., concurring) (enumerating cases to like effect from other circuits). Accordingly, the petitioner had until April 24, 1997 to file his application for federal habeas relief. He docketed Petition No. 1 within that time frame, but that petition was dismissed and he voluntarily abandoned his appeal from the order of dismissal. He did not propound Petition No. 2 until August 17, 1998 (over a year after the grace period had expired). Hence, that petition was time-barred, as the district court ruled, unless some sufficiently excusatory circumstance existed. The petitioner makes four efforts to salvage Petition No. 2: these efforts involve, respectively, statutory interpretation, the Suspension Clause, “relation back,” and equitable tolling. We address them in order. The petitioner’s statutory interpretation argument implicates 28 U.S.C. § 2244(d)(2), which provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under [section 2244(d) ].” Although this provision plainly tolls the limitation period from and after July 11, 1997 (the date upon which the petitioner moved for a new trial in state court), the one-year grace period already had expired by that date. Without more, then, Petition No. 2 was beyond the temporal pale. See Fields v. Johnson, 159 F.3d 914, 915-16 (5th Cir.1998) (per curiam). Seeking to avoid this pitfall, the petitioner contends that the reference in section 2244(d)(2) to “other collateral review” includes not only state collateral review proceedings but also federal habeas proceedings. Building on that foundation, he argues that the pendency of Petition No. 1 tolled the- limitation period from the date of filing (August 28, 1996) to the date of the withdrawal of his notice of appeal (September 3, 1997). In his view, this hiatus, coupled with the tolling that accompanied his pursuit of post-conviction remedies in the state courts during the period from July 11, 1997 through July 27, 1998, rendered Petition No. 2 timeous (i.e., filed within one year of April 24, 1996, after subtracting “tolled” periods). We reject this argument. To the extent that the petitioner asks us to determine what Congress meant when it wrote that the AEDPA’s limitation period, 28 U.S.C. § 2244(d)(1), would be tolled while a state prisoner pursued “State post-conviction or other collateral review,” id. § 2244(d)(2), the Supreme Court has answered that question for us. In Duncan, the Court made pellucid that the adjective “State” qualifies both of the phrases that follow. In the Court’s view, section 2244(d)(2) protects] a state prisoner’s ability later to apply for federal habeas relief while state remedies are being pursued. At the same time, the provision limits the harm to the interest in finality by according tolling effect only to “properly filed application^] for State post-conviction or other collateral review.” Duncan, 121 S.Ct. at 2128 (emphasis supplied) (quoting statute). Thus, section 2244(d)(2), properly construed, “toll[s] the limitation period for the pursuit of state remedies [but] not during the pendency of applications for federal review.” Id. The Duncan Court’s bellwether holding — that “an application for federal habe-as corpus review is not an ‘application for State post-conviction or other collateral review’ within the meaning of 28 U.S.C. § 2244(d)(2),” id. at 2129 — sounds the death knell for the petitioner’s main argument. On this basis, we rule that the pendency of Petition No. 1 did not toll the limitation period (and, therefore, did not render Petition No. 2 timeous). The petitioner’s second effort to rescue Petition No. 2 hinges on his argument that so restrictive an interpretation of the statutory tolling provision renders the AED-PA’s limitation period unconstitutional under the Suspension Clause, U.S. Const, art. 1, § 9, cl. 2. This argument is not foreclosed by Duncan, as it was not made to the Duncan Court. We nonetheless do not reach the merits. The AEDPA limits the scope of habeas review, so that issues not included in a COA cannot be heard on appeal. Bui v. DiPaolo, 170 F.3d 232, 236-37 (1st Cir.1999). Since the operative COA in this case (the one granted by the district court) made no reference to the Suspension Clause issue, that issue is not properly before us. The petitioner’s third effort to salvage Petition No. 2 rests on the notion that Petition No. 2 somehow “relates back” to Petition No. 1 (which was timely filed but dismissed without prejudice). The “relation back” doctrine derives from Federal Rule of Civil Procedure 15(c) (stipulating, inter alia, that “[a]n amendment of a pleading relates back to the date of the original pleading when ... the claim ... asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading”). Absent a specific savings clause, however, a dismissal without prejudice leaves a habeas petitioner who asserts a “relation-back” claim — like any other plaintiff in a civil action — in the same situation as if his first suit had never been filed. See Lefkowitz v. Fair, 816 F.2d 17, 21-24 (1st Cir.1987); see also Nat'l R.R. Passenger Corp. v. Int'l Ass’n of Machinists & Aerospace Workers, 915 F.2d 43, 48 (1st Cir.1990) (noting that the effect of dismissal without prejudice “is to render the proceedings a nullity and leave the parties as if the action had never been brought” (citation and internal quotation marks omitted)). In all events, Rule 15(c) simply does not apply where, as here, the party bringing suit did not seek to “amend” or “supplement” his original pleading, but, rather, opted to file an entirely new petition at a subsequent date. In short, there was nothing to which Petition No. 2 could relate back. See Marsh v. Soares, 223 F.3d 1217, 1219 (10th Cir.2000) (holding “relation back” doctrine inapplicable when initial habeas petition had been dismissed because there was no pleading to which the new petition could relate back); Warren v. Garvin, 219 F.3d 111, 114 (2d Cir.2000) (same).

1924797-17392

DUNIWAY, Circuit Judge: Lopez-Martinez appeals from his conviction on both counts of an indictment. Count 1 charged that he “did knowingly and intentionally import approximately 737.2 grams of heroin, a Schedule I narcotic drug controlled substance, in violation of Title 21, United States Code, Sections 952 and 960(b)(1).” Count 2 charged that he “did knowingly and intentionally possess with intent to distribute approximately 737.2 grams of heroin, a Schedule I narcotic drug controlled substance, in violation of Title 21, United States Code, Section 841(a)(1).” We affirm. I. The Facts. Border Patrol agents arrested Lopez on June 21, 1982, in Nogales, Arizona, just after he had crossed the border from Mexico into the United States through a hole in the border fence. He was carrying a package that contained 737.2 grams of heroin. After waiving his Miranda rights, Lopez said that a man had offered to pay him $1,000 to carry the package from Hermosillo, Mexico, to Nogales, a distance of about 160 miles. He said that he did not know what was in the package, but that he had thought that it might be marihuana. The package was small and weighed about a pound and a half. At the trial, the government introduced, as part of its case-in-chief and over Lopez’s objections, evidence of a statement that Lopez had made while under arrest in 1974 for possessing marihuana with intent to distribute it. A former Drug Enforcement Administration agent testified that in 1974 officials had stopped and confiscated two vehicles containing, between them, a total of 680 pounds of marihuana. He also testified: I asked [Lopez] how much he was to be paid for driving the car containing the marijuana up to Tucson. He stated he was to receive a thousand dollars. II. The Instructions to the Jury. The trial court instructed the jury that heroin is a controlled substance, defined the two offenses — importing heroin and possessing heroin with intent to distribute it, and stated, in defining each offense, that Lopez must have “knowingly or intentionally imported . . . heroin” or “knowingly and intentionally possessed heroin ... in ... Arizona” and “possessed the heroin with intent to distribute the same.” (Instruction 8.) The court then continued: The Government is not required to show that the defendant knew that the substance involved was heroin. It is sufficient if the evidence establishes beyond a reasonable doubt that the defendant knowingly and intentionally imported and possessed a controlled substance, with intent to distribute. You are instructed that marijuana is a controlled substance within the meaning of the law. [Instruction 9] :j; * * * * Actual knowledge that the substance the defendant brought into the country was a controlled substance is an essential element of the offense charged. You may not find the defendant guilty of the offenses charged unless you find beyond a reasonable doubt that he knew that what he brought into the country was a controlled substance. It is not sufficient to show that he may have suspected or thought the substance was a controlled substance. The fact of knowledge, however, may be established by direct or circumstantial evidence, just as any other fact in the case. The prosecutor has the burden of proving beyond a reasonable doubt that the defendant has actual knowledge that what he brought into the country was a controlled substance. It can meet that burden by proving beyond a reasonable doubt that the defendant was aware of the high probability that the substance was a controlled substance and acted with a conscious purpose to avoid learning the truth about the true contents of the package. [Instruction 10] [As I stated before,] an act is done knowingly if it is done voluntarily or intentionally and not because of mistake or accident or other innocent reason. The purpose of adding the word “knowingly” was to insure that no one would be convicted for acts done because of an omission or failure to act due to mistake or accident or other innocent reason. Thus, if you find beyond a reasonable doubt that the defendant was not actual ly aware that it was heroin he was carrying when he entered the United States, but that the only reason he did not learn it was because he deliberately chose not to learn for the very purpose of being able to assert his ignorance if he was discovered with the controlled substance in his possession, then you may find that he had the full equivalent of knowledge because his self-imposed ignorance cannot protect him from criminal responsibility. If, however, you find that the defendant actually believed that what he was carrying was not a controlled substance, then you must acquit the defendant. [Instruction 12] Instruction 10 was proposed by defense counsel, but the instruction as given differed from counsel’s in one important respect. At each place where “a controlled substance” appears in the court’s instruction, the word “heroin” appeared in counsel’s instruction. The court, in each instance, struck the word “heroin” and inserted the words “a controlled substance.” Lopez argues that it was error to give instruction 9 and to modify instruction 10 as the court did. The error is said to be that knowingly and intentionally importing marihuana, or possessing marihuana with intent to distribute, were not the offenses charged by the grand jury, which expressly charged that the drug was heroin. It is reversible error to instruct a trial jury that it can convict a defendant of an offense not charged by the grand jury, even though there is ample evidence that the uncharged offense was committed. Stirone v. United States, 1960, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252. There, the grand jury charged violation of the Hobbs Act, 18 U.S.C. § 1951, by extortion, which obstructed the movement of sand into Pennsylvania. The trial judge, on the basis of evidence in the record, told the jury that it could convict if the commerce affected was the movement of steel from Pennsylvania to other states. The Court reversed the conviction, holding that the instruction violated the defendant’s right, guaranteed by the Fifth Amendment, “to be tried only on charges presented in an indictment returned by a grand jury.” 361 U.S. at 217, 80 S.Ct. at 273. Our own decisions are to the same effect. United States v. Carlson, 9 Cir., 1980, 616 F.2d 446; Howard v. Dag-gett, 9 Cir., 1975, 526 F.2d 1388, 1390; see United States v. Kartman, 9 Cir., 1969, 417 F.2d 893. Moreover, importing or possessing heroin and importing or possessing marihuana carry different penalties. Both drugs are listed in Schedule I of 21 U.S.C. § 812. Heroin, a derivative of opium, is a “narcotic drug.” 21 U.S.C. § 802(16).' Marihuana is not. 21 U.S.C. § 802(15). Thus heroin is listed at Schedule I(b)(10) of § 812, while marihuana is listed at Schedule I(c)(10) of § 812. The penalties prescribed in 21 'U.S.C. §§ 841(b)(1)(A) and 960(b)(1) for narcotic drug offenses are far more severe than those for marihuana offenses, prescribed in §§ 841(b)(1)(B) and 960(b)(2). This lends some color to the argument. We think, however, that Lopez’s argument overlooks the framework of the statutes involved. In the case of unlawful importation, the applicable sections cited in the indictment are 21 U.S.C. §§ 952 and 960(b)(1). Section 952(a) makes it “unlawful to import ... any controlled substance in schedule I ... of subchapter I of this chapter.” Section 812 contains schedule I, in which both heroin and marihuana are listed, along with 79 other controlled substances. Section 960 first lists “Unlawful Acts.” Under that heading, it provides, in pertinent part: (a) Any person who— (1) contrary to section 952 ... knowingly or intentionally imports ... a controlled substance, shall be punished as provided in subsection (b) of this section. It next lists “Penalties.” Under that heading, it provides, in pertinent part: (b)(1) In the case of a violation under subsection (a) of this section with respect to a narcotic drug in schedule I ..., the person ... shall be imprisoned not more than fifteen years, or fined not more than $25,000, or both.... (2) In the case of a violation under subsection (a) of this section with respect to a controlled substance other than a narcotic drug in schedule I ..., the person ... shall be imprisoned not more than five years, or be fined not more than $15,000, or both.... Throughout, the pertinent reference is to a “controlled substance.” Section 841 is similar. It too first lists “Unlawful Acts.” Under that heading, it provides, in pertinent part: (a) ... it shall be unlawful for any person knowingly or intentionally— (1) to ... possess with intent to . .. distribute ... a controlled substance; It then lists “Penalties.” Under that heading, it provides, in pertinent part: (b) ... any person who violates subsection (a) of this section shall be sentenced as follows: (1)(A) In the case of a controlled substance in schedule I .. . which is a narcotic drug, ... a term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both. ... (B) In the case of a controlled substance in schedule I ... which is not a narcotic drug, ... a term of imprisonment of not more than 5 years, a fine of not more than $15,000, or both. Again, the reference is to a “controlled substance.” These statutes are much like statutes prohibiting theft. For example, Cal.Penal Code § 484 provides that one who steals the property of another is guilty of theft. There are two degrees of theft, grand and petty (§ 486). The general rule is that if the value of the property taken exceeds $200, the crime is grand theft (§ 487); if the value is less, the crime is petty theft (§ 488). The punishment for grand theft is more severe than for petty theft (§§ 489, 490). Yet knowledge of the value of the property is not an element of the offense of grand theft. All that is required is a taking of property, intentionally, and with knowledge that one is not entitled to it. See People v. Earle, 1963, 222 Cal.App.2d 476, 477-78, 35 Cal.Rptr. 265. The Federal theft statute, 18 U.S.C. § 641, is similar. See United States v. DiGilio, 3 Cir., 1976, 538 F.2d 972, 978; United States v. Ciongoli, 3 Cir., 1966, 358 F.2d 439, 441. We conclude that the federal statutes with which we are here concerned should be similarly treated. In United States v. Davis, 9 Cir., 1974, 501 F.2d 1344, the defendant was charged with distributing and possessing with intent to distribute mushrooms containing LSD. It was proved, and admitted, that he did so. He apparently claimed that he thought that he was handling psilo-cybin. His request for an instruction that “knowingly” in the indictment meant knowing that the substance was LSD was denied, and he claimed error. We said that under § 841: This is not a correct statement of the law. ... The government is not required to prove that the defendant actually knew the exact nature of the substance with which he was dealing. (501 F.2d at 1346.) In United States v. Jewell, 9 Cir., in banc, 1976, 532 F.2d 697, 698, we said: “we are unanimously of the view” that Davis properly so held, and added: We restrict Davis to the principle that a defendant who has knowledge that he possesses a controlled substance may have the state of mind necessary for conviction even if he does not know which controlled substance he possesses. Cf. United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir.1975). In United States v. Rea, 9 Cir., 1976, 532 F.2d 147, 149, we said the same thing, citing Jewell. In Jewell, we also upheld an instruction similar to instruction 12 in this case. Lopez does not attack that instruction. These cases establish the law of this circuit. What they say is compatible with the statutory scheme. It was not error to give instructions 9 and 10. Here Lopez was charged with importing and possessing a controlled substance, heroin, and the evidence established, without contradiction, that he did so. The evidence also established, from Lopez’s own mouth, that he intended to import marihuana, which, like heroin, is a schedule I substance. It was not necessary for the government to prove that he knew he was importing heroin, although the jury could have found, and probably did find under instruction 12, that he did know. We are aware that neither Davis nor Jewell nor Rea is precisely in point. None involved actual importation or possession of a narcotic and a claim by the defendant that he thought he had imported and possessed a non-narcotic. In Davis, the defendant thought that psi-locybin mushrooms dosed with LSD were unfortified psilocybin. Both LSD and psilo-cybin are schedule 1(c) hallucinogens under 21 U.S.C. § 812(c), and the penalty is the same for both under § 841(b)(1)(B). In Jewell, the defendant entered the United States in a vehicle containing 110 pounds of marihuana, carefully concealed. His defense was that he did not know that the marihuana was there. He did not assert, as Lopez did in our case, that he thought that the vehicle contained some other drug. Rea is like Jewell. The defendant imported heroin, and there was not even the suggestion of a possibility that she thought that she was importing a non-narcotic drug, or indeed any other drug but heroin. Nevertheless, we think that the principle that those cases apply is applicable, whether or not the charge is possession of a narcotic controlled substance, as here. Under the statute, the violation is importing or possessing a controlled substance. The difference between narcotic and non-narcotic controlled substances is material only as to the applicable penalty. This does not read the words “heroin” and “narcotic” out of the indictment, as counsel suggests. They serve a proper purpose — to alert the defendant and the court to the penalty that is sought. III. The Evidence of a Prior Offense. Lopez argues that it was prejudicial error to permit the testimony about his 1974 marihuana offense. We do not agree. Lopez was caught red-handed crossing the border with heroin in his possession. His only defense was that he did not know that it was heroin, but thought it was marihuana. Our holding regarding the instructions makes it clear that such a belief, even if genuine, is not a defense. But Lopez’s counsel at the trial conceded all of the other relevant facts, and concentrated his case, and especially his closing argument, entirely upon Lopez’s claimed belief that what he carried was marihuana. No doubt counsel felt that to bring in or possess a pound and a half of marihuana was so minor a crime that he might get an acquittal from, the jury if he could convince the jury that it should believe Lopez. Counsel began his argument to the jury by saying: “It appears certain that there is only one issue upon which you probably will have to decide this case, and that is knowledge and intent.” RT Vol. VI at 20. Under these circumstances, we hold that the evidence about the previous offense was relevant and probative. In 1974, Lopez was paid $1,000 to haul 340 pounds of marihuana from Mexico to Tucson. Having been in that deal, he could hardly believe that he was being paid $1,000 to haul a pound and a half of marihuana from Hermosillo, Mexico to Nogales, Arizona. A jury could well find that he must have known that he was carrying a drug worth a great deal more per pound than marihuana. The evidence showed that the street value of a pound of marihuana is $500 to $600. Lopez argues that the judge should not have admitted the evidence without a hearing into the legality of the stop that led to the arrest in 1974, and that, even if the evidence is admissible under the Fourth Amendment, the statement violates F.R. Evid. 404(b) pertaining to evidence of other crimes, wrongs, or acts. A. The Fourth Amendment The government argues that Lopez waived any claim that the 1974 stop was illegal by pleading guilty in the resulting juvenile adjudication. It also argues that collateral estoppel bars Lopez from requesting a suppression hearing relating to statements he made while he was under arrest then. The government cites cases refusing to consider tardy constitutional claims brought as challenges to underlying convictions. E.g., Tollett v. Henderson, 1973, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235. However, Lopez is not attacking the 1974 juvenile commitment. Instead, he seeks in the present case a determination that was never made, expressly or by necessary implication, in the 1974 proceeding. We need not consider the government’s waiver or estoppel claim, however, because even if the 1974 arrest were illegal, the Fourth Amendment exclusionary rule would not bar use of Lopez’s 1974 post-arrest statement in his 1982 trial. The rule that evidence obtained in an illegal search or seizure must be suppressed “has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.” United States v. Calandra, 1974, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561. See generally Walder v. United States, 1954, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503. If application of the rule in a particular situation “does not result in appreciable deterrence, then, clearly, its use ... is unwarranted.” United States v. Janis, 1976, 428 U.S. 433, 454, 96 S.Ct. 3021, 3032, 49 L.Ed.2d 1046; see Calandra, 414 U.S. at 351, 94 S.Ct. at 621.

3789855-7733

MEMORANDUM AND ORDER McLAUGHLIN, District Judge. Petitioner, one of two partners in a consulting firm, moves to quash a grand jury subpoena duces tecum. Fed.R.Crim.P. 17(c). On March 25, 1985, this Court held that the traditional rule of Beilis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974), was not an automatic bar to petitioner’s assertion of the Fifth Amendment in opposition to the subpoena. The Court left open, however, pending consideration of the act of production doctrine, whether the claim of privilege covers the particular documents sought. In re Grand Jury Subpoena Duces Tecum Dated November 13, 1984, 605 F.Supp. 174 (E.D.N.Y. 1985). The Court directed the parties to submit briefs on the applicability of the act of production doctrine. In addition, the government filed an ex parte affidavit detailing its knowledge of petitioner’s activities. Petitioner in turn submitted to the Court documents that would be responsive to the subpoena. The Court has reviewed all of these submissions; for the reasons developed below the motion to quash is granted in part. Discussion The challenged subpoena is directed to petitioner as custodian of partnership records, and commands production of books and records from January 1, 1981 to the present, including cash receipts and disbursements, general ledgers, cancelled checks, bank statements and partnership tax returns. In its previous opinion this Court held that the contents of these records were not privileged, 605 F.Supp. at 178 (citing United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d.552 (1984); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)), but that the act of producing them might be. One aspect of petitioner’s motion requires little discussion. To the extent the subpoena is directed to partnership tax returns, which petitioner is required by law to keep, the motion to quash is denied. In re Doe, 711 F.2d 1187, 1191 (2d Cir.1983). I turn now to petitioner’s contention that the act of production doctrine protects against disclosure of the other subpoenaed documents. The physical act of complying with a documentary subpoena may constitute compelled testimony in two situations. First, “if the existence and location of the subpoenaed papers are unknown to the government, then ... compelled production of those documents ‘tacitly concedes the existence of the papers demanded and their possession or control by the [person subpoenaed].’ ” United States v. Fox, 721 F.2d 32, 36 (2d Cir.1983) (quoting Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1976)). Second, a “taxpayer’s production of documents may ‘implicitly authenticate’ the documents and in so doing provide a link in the chain of incrimination.” United States v. Fox, supra, 721 F.2d at 36; see Fisher v. United States, supra, 425 U.S. at 412-13, 96 S.Ct. at 1581-82. A. Existence and Location If the government can demonstrate with reasonable particularity that it knows of the existence and location of subpoenaed documents, no privilege to refuse production on the first ground exists. United States v. Fox, supra, 721 F.2d at 37; United States v. Praetorius, 622 F.2d 1054, 1063 (2d Cir.1979), cert. denied, 449 U.S. 860, 101 S.Ct. 162, 66 L.Ed.2d 76 (1980). The government’s pre-production knowledge must be sufficient “to eliminate any possibility that ... production would constitute an incriminating testimonial act.” United States v. Fox, supra, 721 F.2d at 37-38. A blunderbuss subpoena, such as that issued here, creates an inference that the government is seeking to compensate for its lack of knowledge by compelling petitioner “to become the primary informant against himself.” Id. at 38. Notwithstanding the broad subpoena and the inference arising therefrom, the government’s ex parte affidavit establishes that much is known about this petitioner’s activities. The government is aware that he keeps a set of partnership books, and is aware of two bank accounts—one in the name of the partnership and the other in the name of petitioner and his wife. Petitioner cannot refuse to comply with the subpoena on the ground that the existence and location of the documents are unknown. Cf. United States v. Fox, supra, 721 F.2d at 37 (proper inquiry is what government knows about this taxpayer’s practices, not about taxpayers in general). B. Implicit Authentication Although the existence and location of the subpoenaed documents are known, petitioner may still refuse to produce them if by so doing he would “implicitly authenticate” them for the government. “Implicit authentication occurs when an individual who receives a summons demanding production of documents complies with the summons and thereby implicitly testifies that he owns or at least possesses the documents.” United States v. Fox, supra, 721 F.2d at 38. If a government official will one day be able to testify that he knows the documents in question belong to petitioner because petitioner produced them when asked, then by that very act of production petitioner will have made'á self-incriminating testimonial admission. His act of production will provide a’mecessary link to incriminating evidence contained in the documents by removing the government’s need to authenticate them by other means. Id. Conversely, when the government can authenticate the documents without relying on any act by petitioner, then production by petitioner does not implicate the Fifth Amendment. The Supreme Court illustrated this in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), when it enforced an IRS summons requiring a taxpayer to produce tax workpapers in his possession but prepared by his accountant: As for the possibility that responding to the subpoena would authenticate the workpapers, production would express nothing more than the taxpayer’s belief that the papers are those described in the subpoena. The taxpayer would be no more competent to authenticate the accountant’s workpapers or reports by producing them than he would be to authenticate them if testifying orally. The taxpayer did not prepare the papers and could not vouch for their accuracy. The documents would not be admissible in evidence against the taxpayer without authenticating testimony. Without more, responding to the subpoena in the circumstances before us would not appear to represent a substantial threat of self-incrimination. Id. at 412-13, 96 S.Ct. at 1581-82 (footnotes and citations omitted). With respect to most of the documents demanded by the subpoena, petitioner’s production of them will not constitute authentication implicating the Fifth Amendment. For example, production of the partnership’s'cancelled checks will not provide the government with authentication that would otherwise be lacking; the checks are self-authenticating. Fed.R. Evid. 902(9). Additionally, the bank statements demanded were not prepared by petitioner; and the government can authenticate them through the testimony of bank personnel without relying upon any testimonial act petitioner may perform by producing the statements. As to partnership ledgers, cash receipts, and records of disbursements, however, a different situation exists. Compelled production of these documents would provide the government with just what it needs for authentication—“an admission [by petitioner] that the subpoenaed documents are records pertaining to his business.” United States v. Fox, supra, 721 F.2d at 39. Petitioner may invoke his Fifth Amendment privilege to block production of these records if he can establish that the act of production would be incriminatory. C. Would Producing the Subpoenaed Documents Be Incriminatory?

4342286-14398

MEMORANDUM OPINION CHRISTOPHER R. COOPER, United States District Judge Alleging that District of Columbia Public Schools (“DCPS”) denied her minor child D.F. a free appropriate public education (“FAPE”) in violation of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (2000) (“IDEA”), Plaintiff Unique Fullmore initiated this action for injunctive and declaratory relief against the District of Columbia. Following this Court’s referral of the case to Magistrate Judge Deborah A. Robinson, the parties cross-moved for summary judgment. Magistrate Judge Robinson concluded that the case was moot and recommended denying Fullmore’s motion for summary judgment and granting DCPS’s cross motion. Rejecting in part the magistrate judge’s recommendation, this Court concludes that the case is not moot but finds insufficient basis in the record to decide whether D.F. is entitled to compensatory education. The Court accordingly denies both parties’ motions for summary judgment. I. Background At the time of the events at issue in this case, D.F. was a 12-year-old special education student enrolled at Ron Brown Middle School. Compl. ¶¶ 7, 9. On August 7, 2012, Fullmore, D.F.’s mother, requested that D.F. receive a comprehensive special education reevaluation, including a psychiatric evaluation. Id. ¶ 11. The parties held an Individualized Educational Program (“IEP”) meeting, after which DCPS arranged for D.F.’s functional behavior assessment and psychological examination. AR at 62-63. Following this evaluation, DCPS indicated that D.F.’s disability classification would reipain “emotionally disabled” and that he would .continue at Ron Brown. Id. at 82. Fullmore informed DCPS on October 10, 2012 that she disagreed with DCPS’s psychological evaluation and requested an independent psychiatric evaluation. Id. at 83. Two days later, Fullmore filed an administrative complaint alleging that DCPS failed to comprehensively and appropriately reevaluate D.F. in all areas of suspected disability, thereby denying D.F. a FAPE. Id. at 84. As relief, Fullmore requested that DCPS fund an independent psychiatric evaluation, convene an IEP meeting within ten days of receiving the evaluation to review and revise D.F.’s IEP, and discuss at that meeting appropriate compensatory education for D.F. Id. at 87. On October 15 and 23, 2012, DCPS sent letters to Fullmore authorizing her to receive independent psychological and psychiatric evaluations. Id. at 91,118. Two months later, Fullmore obtained an independent psychiatric evaluation of D.F. Id. at 214. At the December 20, 2012 administrative hearing, the hearing officer dismissed Full-more’s complaint. Id. at 257. Noting that Fullmore’s claims only “addressed an alleged failure of DCPS to conduct or authorize a psychiatric evaluation for [D.F.,]” for which the “appropriate remedy would have been ... to order a psychiatric evaluation be completed,” and that DCPS had already provided such relief prior to the hearing, the hearing officer concluded that “the instant matter presented] no controversy for me to review.” Id. at 16. The officer further observed that Fullmore had failed to satisfy “the minimal pleading standards of setting forth a description of the problem and a proposed resolution in relation to a claim for compensatory education.” Id. at 7-8. The hearing officer clarified that the dismissal “does not apply to claims of denial of ... compensatory education resulting from the delay in the completion of the psychiatric evaluation should Petitioner choose to raise such claims in the future.” Id. at 15. Fullmore commenced this action in March 2013. Her complaint alleges that DCPS violated the IDEA by failing to comprehensively and appropriately reevaluate D.F. in order to ascertain all areas of suspected disability. Compl. 24-50. The complaint seeks the following forms of relief: (1) a declaration that DCPS “violated the IDEA and denied D.F. a free appropriate public education”; (2) an injunction “ordering DCPS to convene an IEP team meeting within 10 days to discuss and determine appropriate compensatory education, and to devise a compensatory education plan to compensate D.F. for DCPS’ failures”; and (3) “in the alternative, [an injunction] ordering DCPS to fund an .independent evaluation at market rate to determine appropriate compensatory education, and then allow ... Fullmore to come before the Court or an administrative Hearing Officer to present facts and evidence sufficient for the tribunal to fashion an appropriate compensatory award.” Id. ¶ 1. The Court referred this case to Magistrate Judge Robinson for full case management excluding trial. After the parties cross-moved for summary judgment, Magistrate Judge Robinson issued a Report and Recommendation concluding that “[b]ecause the relief sought by Plaintiff in her administrative complaint was confined to a request that a psychiatric evaluation of D.F. be authorized,” “DCPS’s authorization of a psychiatric evaluation of D.F.” renders the case moot. Report & Recommendation at 11-12. The magistrate judge declined to determine whether D.F. is entitled to a compensatory education award based on the verified statements attached to Fullmore’s motion for summary judgment because the issue had not been presented to the hearing officer in the first instance. Id. at 13-15. Fullmore filed timely objections to the Magistrate Judge Robinson’s Report and Recommendation, arguing that the judge erred by (1) concluding that the case was rendered moot by Fullmore’s purported failure to request compensatory education in her administrative complaint, (2) failing to analyze the “voluntary cessation mootness exception,” and (3) disregarding Full-more’s evidence on the issue of compensatory education. Pl.’s Objections to Report & Recommendation at 3-8. II. Standard of Review This Court “considers de novo those portions of [a magistrate judge’s report and] recommendation to which objections have been made and ‘may accept, reject, or modify the recommended decision[.]’” D.D. ex rel. Davis v. Dist. of Columbia, 470 F.Supp.2d 1, 1 (D.D.C.2007) (quoting Fed. R. Civ. P. 72(b)). With respect to its review of the underlying administrative decision, this Court “may not substitute its own views for those of the Hearing Officer,” R.D. v. Dist. of Columbia, 374 F.Supp.2d 84, 89 (D.D.C.2005), but accords the officer “less deference ... than is the case in typical administrative proceedings.” S.S. v. Howard Road Acad., 585 F.Supp.2d 56, 64 (D.D.C.2008) (citing Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C.Cir.1988)). Pursuant to the IDEA’S explicit mandates, this Court examines “the records of the administrative proceedings,” as well as “additional evidence at the request of a party.” 20 U.S.C. § 1415(i)(2)(C). Based on the preponderance of this evidence, the Court then “grant[s] such relief as the Court determines is appropriate.” Id. III. Analysis A. Mootness A federal court must refrain from deciding a case that has been rendered moot—that is, where “events have so transpired that the decision .will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” Clarke v. United States, 915 F.2d 699, 701 (D.C.Cir.1990) (internal quotation marks and cita tion omitted). The “underlying concern” of mootness doctrine is that “when the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated, then it becomes impossible for the court to grant any effectual relief whatever to [the] prevailing party,” making “any opinion as to legality of the challenged action ... advisory.” City of Erie v. Pap’s AM., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (internal citations and quotation marks omitted). The crux of the parties’ dispute—and the dispositive issue for the hearing officer—is whether this case became moot when DCPS authorized Fullmore to obtain an independent psychiatric evaluation. Fullmore argues that the case still presents a live controversy, notwithstanding the provision of the psychiatric evaluation, because her request that DCPS provide an appropriate compensatory education plan “remain[s] available.” Pl.’s Mot. for Summ. J. at 11. DCPS, by contrast, maintains that because the independent psychiatric evaluation authorized by DCPS has already occurred, “there remain[s] no live controversy for adjudication, and the hearing officer correctly concluded that Plaintiffs complaint was moot.” Def.’s Cross Mot. for Summ. J. at 3. This Circuit’s precedent makes clear that compensatory education is a distinct form of relief designed to address a distinct injury: upon finding that a child has been denied a FAPE under the IDEA, a court or hearing officer may award the child “compensatory education” in the form of “educational services ... to be provided prospectively to compensate for a past deficient program.” Reid v. Dist. of Columbia, 401 F.3d 516, 522 (D.C.Cir.2005) (internal quotation marks omitted) (emphasis added). DCPS concedes that Fullmore’s complaint explicitly seeks relief in the form of compensatory education and that DCPS. has provided only one of the original forms of relief sought by Full-more: the independent psychiatric evaluation. See Def.’s Response to PL’s Objections to Report & Recommendations at 1. Most notably, DCPS admits that it has declined to provide compensatory education. The question before this Court, then, is whether the availability of these alternative forms of relief—particularly compensatory education—renders the case justiciable. This Circuit’s decision in Lesesne ex rel. B.F. v. Dist. of Columbia, 447 F.3d 828 (D.C.Cir.2006), provides a direct answer to this question. In that case, a parent sued DCPS seeking a new IEP for her son, a determination of appropriate placement, and the development of a compensatory education plan to remedy DCPS’s past failure to provide a FAPE. Id. at 833-34. At some point during litigation, the parties “reached an agreement ... on the record that purported to resolve” the case. Id. at 831 (internal quotation marks omitted). For the simple reason that this agreement failed to “address [the plaintiffs] demand for compensatory education,” the Circuit held that the plaintiffs complaint “presented the District Court with a live controversy.” Id. at 833. Similarly, this Court in Flores ex rel. J.F. v. Dist. of Columbia, 437 F.Supp.2d 22 (D.D.C.2006), rejected DCPS’s mootness arguments because “DCPS [had] not yet developed a compensatory education plan.” Id. at 31. As in Flores and Lesesne, DCPS in this case “has yet to provide at least one form of relief specifically requested by the plaintiff in her complaint—a compensatory education plan.” Id. Further, as in those cases, nothing indicates that DCPS addressed Fullmore’s demand for compensatory education by providing an independent psychiatric evaluation. Indeed, DCPS makes no such argument. As the court stated in Flores, the mere “possibility that the Court may award [compensatory education] is sufficient to defeat [DCPS’s] mootness challenge.” Id. That possibility exists here. DCPS makes no attempt to distinguish Lesesne and distinguishes Flores only on the ground that “in Flores a denial of a FAPE had already been found.” Def.’s Cross Mot. for Summ J. at 13. But a FAPE denial is not a prerequisite to Les-esne’s mootness holding—indeed, neither the hearing officer nor the district court in Lesesne found such a denial. Bound by clear circuit precedent, the Court concludes that this case presents a live controversy because relief in the form of compensatory education remains available. The Court therefore has no need to decide whether any “exceptions to mootness” apply here, see PL’s Mot. for Summ. J. at 12-13, and proceeds to the merits of Full-more’s compensatory education arguments. B. Entitlement to Compensatory Education In remedying a violation of the IDEA, a court may “grant such relief as [it] determines is appropriate.” 20 U.S.C. 1415(i)(2)(C). “Federal courts have interpreted ‘appropriate relief to include compensatory education as an equitable remedy to be granted upon finding that a child has been denied FAPE under the Act.” Diatta v. Dist. of Columbia, 319 F.Supp.2d 57, 64 (D.D.C.2004); accord Reid, 401 F.3d at 522. In other words, as the parties agree, finding a denial of a FAPE is a prerequisite to awarding compensatory education. Conceding that the hearing officer did not decide whether DCPS denied'D.F. a FAPE, and thus whether compensatory education is appropriate, Fullmore argues that this Court should nonetheless rule on these issues based on “the evidence presented,” which includes two Verified Statements never put before the hearing officer. Pl.’s Objections to Report & Recommendations at 8. In these statements, Fullmore and her attorney assert that, following D.F.’s independent psychiatric evaluation: DCPS changed D.F.’s disability classification; Fullmore obtained medication for D.F.; and, once on medication, D.F.’s behavior and school performance improved. See V.S. of Unique Fullmore ¶¶ 15-16; V.S. of Nicholas Ostrem ¶ 15. According to Fullmore, this evidence provides this Court sufficient basis to conclude that DCPS denied D.F. a FAPE and to order DCPS to provide compensatory education. See PL’s Mot. for Summ. j. at 10. Readily acknowledging that “both a hearing officer and the District Court have the authority to grant compensatory education if a denial of a FAPE occurs,” Def.’s Mot. for Summ. J. at 14 (emphasis omitted), DCPS contends that “as the case was presented to the hearing officer on December 20, 2012, there was no basis for finding a denial of a FAPE; therefore, compensatory education could not be granted,” id. at 15. Further admitting that “the IDEA permits a reviewing court to ‘hear additional evidence,’ ” Def.’s Reply at 6 (quoting 20 U.S.C. § 1415(i)(2)(B)), DCPS urges this Court to “ ‘maintain [its] character of review’ ” and reject Fullmore’s additional evidence, which was never presented to the hearing officer in the first instance. Id. at 6-8. In her Report & Recommendation, Magistrate Judge Robinson similarly concluded that granting Fullmore’s request to consider her' additional evidence would inappropriately “elevate [this] civil action ‘to the level of a de novo trial.’ ” Report & Recommendation at 14.

144026-13520

LEO, Chief Judge: On 9 August 1991, the petitioner was convicted in absentia before a general court-martial composed of officer members of desertion, rape, and assault consummated by a battery, in violation of Articles 85, 120, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 885, 920, and 928. He was sentenced to confinement for seven years, forfeiture of $753.00 pay per month for a period of seven years, reduction to the pay grade E-l, and a dishonorable discharge. On 23 December 1991, the convening authority approved the sentence as adjudged. In conducting our Article 66(c), UCMJ, 10 U.S.C. § 866(c), review, we affirmed the findings and sentence. United States v. Fisher, No. 920034 (N.M.C.M.R. 30 Nov 1992)(un-published op.). The petitioner then filed a petition for grant of review with the Court of Military Appeals. United States v. Fisher, 37 M.J. 239 (C.M.A.1993). His petition was denied. United States v. Fisher, 38 M.J. 222 (C.M.A.1993). On 17 July 2001, the petitioner filed with this Court a petition for extraordinary relief in the nature of a writ of habeas corpus, error coram nobis, and mandamus. The issuance of a writ is “a drastic remedy that should be used only in truly extraordinary situations.” Aviz v. Carver, 36 M.J. 1026, 1028 (N.M.C.M.R.1993)(citing United States v. Lobelia, 15 M.J. 228 (C.M.A.1983)). The petitioner has the heavy burden of showing that he has “a clear and indisputable right” to the extraordinary relief that he has requested. Aviz, 36 M.J. at 1028. After reviewing the petition, the briefs of the parties, and the appendices to the briefs, we conclude the petitioner is not entitled to the relief he requests. Accordingly, the petition is denied. I. Background On 13 June 1991, the petitioner was arraigned on the above charges. On 17 July 1991, he absented himself without authority and was subsequently tried and convicted in absentia. According to the petitioner, he was shot and wounded in an armed robbery during his unauthorized absence. While hospitalized, he was taken into custody by local law enforcement officials. On 25 August 1991, he was released to military authorities to begin serving his court-martial sentence. However, on 30 August 1991, he was delivered to the State of California to face trial on a felony complaint of armed robbery. The petitioner was convicted and sentenced on 6 February 1992 to 16 years in state prison. Upon completion of his civilian sentence on or about 5 November 1999, he was returned by the State of California to military control to serve out the remainder of his court-martial sentence at the Army Regional Confinement Facility, Fort Lewis, Washington. II. Jurisdiction The Government argues that we have no jurisdiction to consider this petition. We disagree. Under the All Writs Act, [28 U.S.C. § 1651(a),] “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” We are a court that Congress, acting through the Judge Advocate General, has created. [Dettinger v. United States, 7 M.J. 216, 219 (C.M.A.1979)]; see also [United States v. Frischholz, 16 C.M.A. 150, 151, 36 C.M.R. 306, 307, 1966 WL 4467 (C.M.A.1966)](All Writs Act applicable not only to Article III courts, but to all courts established by Congress). Accordingly, this court is empowered under the All Writs Act to grant extraordinary relief where appropriate. Id.; Aviz v. Carver, 36 M.J. 1026, 1028 (N.M.C.M.R.1993). Ponder v. Stone, 54 M.J. 613, 615 (N.M.Ct.Crim.App.2000). As explained in Ponder, we reject as overbroad the Government’s interpretation of Clinton v. Goldsmith, 526 U.S. 529, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999), as a severe limitation on our consideration of writ petitions. Id. As for the Government’s argument that we have no jurisdiction because the petitioner’s court-martial is final and conclusive under Article 76, UCMJ, 10 U.S.C. § 876, we hold that this article is not a bar to our consideration of his petition. A request for extraordinary relief in the nature of a writ of habeas corpus or error coram nobis may be filed with a military appellate court to collaterally attack a completed court-martial proceeding. Dew v. United States, 48 M.J. 639, 647 (Army Ct.Crim.App.1998). We view our consideration of this petition as properly a matter in aid of our jurisdiction under the All Writs Act. III. Writ of Habeas Corpus A writ of habeas corpus orders the release of a petitioner because his confinement in some way is improper or illegal. See Moore v. Akins, 30 M.J. 249 (C.M.A.1990); Gragg v. United States, 10 M.J. 286 (C.M.A.1981)(summary disposition); Frage v. Edington, 26 M.J. 927 (N.M.C.M.R.1988); McCray v. Grande, 38 M.J. 657 (A.C.M.R.1993). The petitioner in this ease seeks the issuance of a writ of habeas corpus on the grounds that he is being unlawfully held beyond the completion of his adjudged court-martial confinement. He argues that this confinement was served concurrently with his civilian prison sentence because he was delivered to the State of California on 30 August 1991 under Article V(f) of the Interstate Agreement on Detainers Act, 18 U.S.C. Appendix (LADA). Petitioner’s Brief of 17 Jul 2001 at 10-12. Therefore, according to the petitioner, he had served all of his court-martial confinement by the time he returned to military control on 5 November 1999. He also argues that military jurisdiction over him ended when he was issued his dishonorable discharge certificate (DD Form 214) while serving his civilian prison sentence. As a result, he claims the military had no authority to reconfine him after his release from state prison. Id. at 12-15. We disagree with both arguments. A. Original Delivery to State We find that the petitioner’s delivery to state authorities to stand trial was accomplished under Article 14, UCMJ, 10 U.S.C. § 814. The transfer of a military prisoner pursuant to this article merely interrupts the execution of his court-martial sentence. United States v. Bramer, 45 M.J. 296, 299 (1996); Art. 14(b), UCMJ. Upon request by military authorities after completion of any civilian confinement, the prisoner must be returned to military control to serve out the rest of his court-martial sentence. Art. 14(b), UCMJ. The regulations governing the delivery of a military prisoner to civilian authorities are found in the Manual of the Judge Advocate General, Judge Advocate General Instruction 5800.7C §§ 607 and 613 (3 Oct 1990)(JAGMAN). According to JAGMAN § 613(a), the legal authority for delivery of military prisoners to state officials is grounded in Article 14, UCMJ and, “[although seldom utilized,” the IADA. Under the LADA, a court-martial confinement continues to run while the military prisoner is temporarily in state custody. JAGMAN § 0613(b). The regulations further state, “When a request for custody does not invoke the [IADA], delivery of custody shall be governed by Article 14, UCMJ, and sections 0603 through 0610, of this Manual.” JAGMAN § 613(c)(empha-sis added). Thus, the fact that the IADA must be invoked clearly implies that the military article is the instrument of choice for delivery of a military prisoner to state authorities. To effect delivery, a written agreement conforming to the sample form in JAGMAN Appendix A-6-b must be executed by an authorized representative of the state seeking temporary custody of the prisoner. JAGMAN § 607. It is clear to us that the State of California did not assert the IADA at the time it requested delivery of the petitioner into its custody. The written agreement that it used was obviously patterned after the sample form in JAGMAN Appendix A-6-b, as required by JAGMAN §§ 607 and 613 for delivery under Article 14, UCMJ. Also, the District Attorney’s office had no official documents showing that the IADA was asserted to obtain delivery of the petitioner. Respondent’s Answer of 3 Aug 01, Appendix (Declaration under penalty of perjury by Scott G. Carbaugh of 31 Jul 2001). Finally, the various letters and memorandums from the Department of the Navy that the petitioner identified as using the term “detainer” could not have effected a transfer under the IADA, the purpose of which is to obtain the temporary delivery of a prisoner by the sending state to the receiving state for disposition of outstanding charges. To obtain custody of a military prisoner, such a transfer occurs only “[u]pon request under the Act by either State authorities or the prisoner.” JAGMAN § 613(b)(emphasis added). We have no evidence of a request under the IADA by either one. B. Issuance of Form DD-214. The petitioner next argues that, even if he was delivered to the State of California under Article 14, UCMJ, the issuance of a military discharge certificate (Form DD-214) while he was still in civilian custody vitiated the article, thereby terminating military jurisdiction over him. The cases cited by the petitioner in support of his argument are inapposite. They address the issue of jurisdiction in the context of an accused awaiting trial on pending charges before a court-martial. In this case, jurisdiction over the petitioner had already attached before issuance of his dishonorable discharge certificate; it continues through sentence and punishment. Rule for Courts-Martial 202(c)(1), Manual for Courts-Martial, United States (1995 ed.). See also Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118 (1878)(holding that principle of continuing jurisdiction permitted execution of military sentence, despite lapse of many years and appellant’s severance of all connection with the military). The issuance of the discharge certificate merely executed that part of the petitioner’s sentence extending to the dishonorable discharge. It terminated his status as an active duty service member, but not his status as a “military prisoner.” Carter v. McClaughry, 183 U.S. 365, 383, 22 S.Ct. 181, 46 L.Ed. 236 (1902). While confined, a military prisoner remains subject to the UCMJ even after he is discharged from military service. Id.; United States v. Hudson, 5 M.J. 413, 421 n. 4 (C.M.A.1978); United States v. Harry, 25 M.J. 513, 513 (A.F.C.M.R.1987); Art. 2(a)(7), UCMJ, 10 U.S.C. § 802(a)(7). Because the written agreement effecting his transfer to state authorities required that the petitioner be returned after completing his civilian confinement when requested by military authorities, we believe he effectively remained a prisoner subject to military con trol. Art. 14(b), UCMJ. In other words, delivery of temporary custody to state authorities did not relinquish military control over him, nor did it change his status as a military prisoner. We, therefore, reject the petitioner’s argument that the principle of continuing jurisdiction is limited to persons “physically in military control.” Petitioner’s Brief of 17 Jul 2001 at 14. IV. Writ of Error Coram Nobis The Court of Appeals for the Armed Forces has summarized the nature of the writ of error coram nobis as follows: Coram nobis is not a substitute for an appeal. It is extraordinary relief predicated upon “exceptional circumstances” not apparent to the court in its original consideration of the case. It may not be used to seek a reevaluation of the evidence or a reconsideration of alleged errors. Frischholz, 16 C.M.A. at 153, 36 C.M.R. at 309 (citations omitted). A court may correct its earlier disposition of a case because it “misperceived or improperly assessed a material fact.” McPhail v. United States, 1 M.J. 457, 459 (C.M.A.1976). However, a petitioner must first show that there was an error not known to him at trial or on appeal and that it was “of such a fundamental nature as to render the proceeding itself irregular and invalid.” Chapel v. United States, 21 M.J. 687, 689 (A.C.M.R.1985)(citing United States v. Morgan, 346 U.S. 502, 505-13, 74 S.Ct. 247, 98 L.Ed. 248 (1954)). The petitioner now seeks the issuance of a writ of error coram nobis on the grounds that he was denied effective assistance of appellate counsel during our initial review of his ease. He alleges that his appellate counsel was ineffective because his counsel never contacted him. Applying the standard established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to this case, we can test such a claim for prejudice. United States v. Curtis, 44 M.J. 106, 164 (1996); cf. United States v. Howard, 47 M.J. 104 (1997)(holding that failure of substitute defense counsel to establish attorney-client relationship with accused before responding to staff judge advocate’s recommendation must be tested for prejudice to obtain relief). The appellant argues that he was prejudiced because he was denied the opportunity to address during the normal course of appellate review the issue now raised in this petition. We reviewed the issue concerning his continued confinement and found it to be without merit. We, therefore, hold that the petitioner was not prejudiced by the performance of his appellate counsel, and the alleged failure of his counsel to contact him was not so fundamental as to render the appellate proceedings irregular and invalid. V. Disposition We also considered the petitioner’s request for a writ of mandamus and found insufficient grounds to issue such a writ. Accordingly, the petition for extraordinary relief in the nature of a writ of habeas corpus, error coram nobis, and mandamus is denied. Judge FINNIE and Judge BRYANT concur.

10541350-24111

BEEZER, Circuit Judge: NYE Constructors petitions for review of a NLRB decision dismissing its complaint against Laborers’ Local Union No. 1184. The Board held that section 8(b)(7)(C) of the National Labor Relations Act was not violated where the union, which was not certified, picketed for less than thirty days to force NVE to enter into a prehire agreement. We deny the petition for review and affirm the Board’s decision. I From January 5 to January 14, 1988, Laborers’ International Union of North America, Local No. 1184 (the Union) picketed the construction site where NVE Constructors, Inc. (NVE) was a general contractor on a state prison project. At the gate reserved for NVE employees, the Union displayed picket signs that stated: “NVE, No Contracts, Laborers’ Local 1184, AFL-CIO.” As a result of the picketing, NVE did not receive deliveries of concrete scheduled for January 5-7, 1988. At the time of the picketing, NVE was not a party to a collective-bargaining agreement with the Union. There were 20 NVE employees at the jobsite, but those employees had not designated the Union as their bargaining representative. According to the Union’s business agent, the purpose of the picketing was “to obtain a contract either by authorization from the people through authorization cards or the contractor or contractors signing a prehire agreement voluntarily.” The picketing stopped on January 13, 1988, after NVE filed an unfair labor practice charge, alleging a violation of section 8(b)(7)(C) of the National Labor Relations Act, (the Act), 29 U.S.C. § 158(b)(7)(C) (1988), The Board’s General Counsel issued a complaint based on the charges filed by NVE. After a brief hearing, the parties submitted the case directly to the Board, to be decided on the basis of the facts contained in the transcripts of the hearing. The Board dismissed the complaint, concluding that “at least with respect to an employer, which has employees, we do not believe that recognitional and organizational picketing by a minority union in the construction industry is prohibited by Section 8(b)(7)(C) of the Act if the picketing meets the time limitations set forth in that section.” Laborers Local 1184 (NVE Constructors), 296 NLRB No. 165, 132 LRRM 1273, 1278 (1989). NVE petitioned for review. II The National Labor Relations Board “has the primary responsibility for developing and applying national labor policy,” and its rules are accorded “considerable deference.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 110 S.Ct. 1542, 1549, 108 L.Ed.2d 801 (1990) (citations omitted). We must uphold a Board rule “as long as it is rational and consistent with the Act, even if we would have formulated a different rule had we sat on the Board.” Id. (citations omitted). “Furthermore, a Board rule is entitled to deference even if it represents a departure from the Board’s prior policy.” Id. (citing NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-66, 95 S.Ct. 959, 967-68, 43 L.Ed.2d 171 (1975) (“The use by an administrative agency of the evolutional approach is particularly fitting. To hold that the Board’s earlier decisions froze the development of this important aspect of the national labor law would misconceive the nature of administrative decisionmaking.”)). III Section 8(b)(7) of the Act makes it an unfair labor practice for a union to picket to force an employer to recognize or bargain with it if the employer has already recognized another union or if there has been a representation election within the preceding twelve months. 29 U.S.C. § 158(b)(7)(A), (B) (1988). If neither of these situations exist, such picketing may be conducted for “a reasonable period not to exceed thirty days from the commencement of such picketing to gain recognition.” Id. § 158(b)(7)(C). The union may not picket beyond this time without filing a petition for a representation election. Id. The purpose of section 8(b)(7) is “to ensure that employees [are] free to make an uncoerced choice of bargaining agent.” NLRB v. Iron Workers’ Local 103, 434 U.S. 335, 346, 98 S.Ct. 651, 658, 54 L.Ed.2d 586 (1978). This was accomplished in section 8(b)(7)(C) by encouraging “prompt resort to the Board’s election machinery, rather than protracted picketing, as the method for resolving questions concerning representation.” Retail Clerk’s Local 1407, 215 NLRB 410, 1974-75 CCH NLRB ¶ 15304 (1974) (citing Dayton Typographical Union v. NLRB, 326 F.2d 634, 636-37 (D.C.Cir.1963)). Section 8(f) of the Act provides that it is not an unfair labor practice for unions and employers in the construction industry to enter into collective-bargaining agreements even though the employees of that employer have not designated the union as their lawful bargaining representative. These agreements are known as “prehire agreements.” Under section 18 of the Act, a labor statute must not be interpreted to restrict the right to picket “unless the congressional purpose to give it that meaning persuasively appears either from the structure or history of the statute.” NLRB v. Drivers, Chauffeurs, Helpers, Local Union No. 639 (Curtis Bros.), 362 U.S. 274, 282, 80 S.Ct. 706, 711, 4 L.Ed.2d 710 (1960). Neither section 8(b)(7) nor section 8(f) explicitly prohibits picketing to obtain a prehire agreement. Furthermore, because Congress has “dealt explicitly with isolated evils which experience has established flow from such picketing,” see, e.g., § 8(b)(7)(A), (B), 29 U.S.C. § 158(b)(7)(A), (B) (1988), we may infer limitations not explicitly provided for in the statute only if there is “the clearest indication in the legislative history” of Congress’ intent to create a limitation. See Curtis Bros., 362 U.S. at 284, 80 S.Ct. at 712. The failure to authorize the use of picketing does not necessarily imply a prohibition against picketing. See Donald Schriver, Inc. v. NLRB, 635 F.2d 859, 868 n. 11 (D.C.Cir.1980) (That Congress “did not intend to authorize minority construction unions to strike, picket or otherwise coerce employers to sign § 8(f) agreements ... can mean no more than that a union may not picket in excess of 30 days without filing a petition for an election ... [t]hus the coercion employed to secure the § 8(f) agreements (such as the 10 day picketing of [the employer]) did not violate the Act.” (Quotation omitted.)). Other evidence relevant to an implicit prohibition against picketing to obtain a prehire agreement is ambiguous. Therefore, we must defer to the Board’s interpretation of the statute if it is rational and consistent with the Act. Curtin Matheson, 110 S.Ct. at 1549. The Board’s interpretation does not violate the intention of the Act tó leave “ ‘the discussion between the employer and the employee, and the agreements which they may or may not make, voluntary.’ ” See H.K. Porter Co. v. NLRB, 397 U.S. 99, 103-04 & n. 2, 90 S.Ct. 821, 823-24 & n. 2, 25 L.Ed.2d 146 (1970) (quoting 79 Cong. Rec. 7659). Economic pressure is often used in the context of labor disputes to reach what are often termed “voluntary” agreements. The Supreme Court recognized this in H.K. Porter, where, after reiterating the purpose of the Act to facilitate voluntary agreements, it stated that “[i]t cannot be said that the Act forbids an employer or a union to rely ultimately on its economic strength to try to secure what it cannot obtain through bargaining.” Id. at 109, 90 S.Ct. at 826. See also NLRB v. American Nat. Ins. Co., 343 U.S. 395, 402, 72 S.Ct. 824, 828, 96 L.Ed. 1027 (1952) (The basic “theory of the Act is that the making of voluntary labor agreements is encouraged by protecting employees’ rights to organize for collective bargaining.”). Furthermore, at the same time it enacted section 8(f), Congress included a provision protecting employers from being pressured to enter into agreements with minority unions. If the picketed employer doubts that the union enjoys the support of a majority of its employees, the employer may file an election petition. See NLRA § 8(b)(7)(C), 29 U.S.C. § 158(b)(7)(C) (1988). When an election petition is filed in a situation in which a non-certified union is picketing, the Board must direct an expedited representation election, without first investigating the petition to determine whether a question of representation exists. See id. §§ 8(b)(7)(C), 9(c), 29 U.S.C. §§ 158(b)(7)(C), 159(c) (1988). If the election demonstrates that a majority of the employees do not support the union, section 8(b)(7)(B) bars the union from picketing for twelve months. 29 U.S.C. § 158 (b)(7)(B) (1988). NVE argues that the effect of the Board’s decision is to legalize the “very top-down organizing weapon Congress condemned in enacting” section 8(b)(7)(C). The Supreme Court has recognized that “[o]ne of the major aims of the 1959 Act was to limit ‘top-down’ organizing campaigns, in which unions used economic weapons to force recognition from an employer regardless of the wishes of his employees.” The use of picketing was of particular concern as a method of coercion in three specific contexts: where employees had already selected another union representative, where employees had recently voted against a labor union, and where employees had not been given a chance to vote on the question of representation. Picketing in these circumstances was thought impermissibly to interfere with the employees’ freedom of choice. Iron Workers, 434 U.S. at 346-47, 98 S.Ct. at 658 (quoting Connell Constr. Co. v. Plumbers’ and Steamfitters’ Local 100, 421 U.S. 616, 632, 95 S.Ct. 1830, 1840, 44 L.Ed.2d 418 (1975)). However, in Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982), the Supreme Court determined that the top-down effects of section 8(e), 29 U.S.C. § 158(e) (1988), which allows agreements restricting subcontracts in the construction industry to those subcontractors that have signed collective-bargaining agreements with the union, were not sufficient to invalidate such subcontracts. The Court explained that “[t]he bare assertion that a particular [practice] encourages top-down organizing pressure does not resolve the issue we confront in these cases: how much top-down pressure did Congress intend to tolerate?” In the ease of section 8(f), Congress acted to limit the potential top-down effects of allowing prehire agreements by allowing employees to invalidate a prehire agreement by petitioning for a representation or decertification election at any time during the period covered by the agreement. 29 U.S.C. § 158(f) (1988). None of the cases cited by NVE in support of its position addresses picketing to obtain a prehire agreement. In fact, two of those cases support the Board’s position that the purpose of section 8(b)(7) — to ensure that employees may freely choose their bargaining representative — is not undermined by allowing unions to picket to obtain a section 8(f) agreement. In Jim McNeff, Inc. v. Todd, 461 U.S. 260, 103 S.Ct. 1753, 75 L.Ed.2d 830 (1983), the Supreme Court held that an employer’s monetary obligations to an uncertified labor union, incurred pursuant to a section 8(f) agreement, survived the repudiation of the agreement by the employer. Id. at 271-72, 103 S.Ct. at 1759. The Court noted that although section 8(f) does affect the right of employees to select their own bargaining representative “by allowing a minority union to reach an agreement with the employer setting the terms and conditions of employment,” id. at 268, 103 S.Ct. at 1758, this is the intended consequence of section 8(f) and is “limited by the final proviso ... that permits employees ... to challenge a prehire agreement at any time by petitioning the Board for a representative election.” Id. Similarly, in Mesa Verde Constr. Co. v. Northern Cal. District Council of Laborers, 861 F.2d 1124 (9th Cir.1988), we explicitly rejected the contention that allowing employers to repudiate prehire agreements unilaterally would protect employees’ “free-choice” rights. 861 F.2d at 1132. We based our decision in part on the fact that the right of employees freely to choose their bargaining representative is explicitly protected by the provisions of section 8(f) allowing employees to petition at any time to “either fully certify a union under 9(a) or to decertify their putative union.” Id. at 1132-33. The Board has determined that picketing to obtain a prehire agreement violates section 8(b)(7)(C) where the construction employer has nc employees at the job-site. NVE contends that such a distinction is not reasonable. In Cleveland Bldg. & Constr. Trades Council, 297 NLRB No. 47, 133 LRRM 1065 (1989), the Board explained the reason for making such a distinction. Citing its decision in the present case, the Board concluded that because “the policy underlying Section 8(b)(7)(C) — permitting picketing for a reasonable period of time (not to exceed 30 days) until the union files a petition [for a representation election] — would not be effectuated” where there are no employees, “no valid question concerning representation could be presented and, therefore, a union could not file a valid 9(c) election petition.” Id. at 1065 (citing Laborers Local Union No. 1184 (NVE Constructors), 296 NLRB No. 165, 132 LRRM 1273 (1989)). In light of the fact that the purpose underlying section 8(b)(7) is to ensure that employees may freely choose their bargaining representatives, see Iron Workers, 434 U.S. at 346, 98 S.Ct. at 658, it is reasonable to distinguish situations in which there are employees, in which case the employer is protected by being able to petition for an expedited election, from those in which there are not. Finally, NVE cites language from previous Board decisions suggesting that picketing to obtain a prehire agreement violates section 8(f). See, e.g., Deklewa v. International Ass’n of Bridge, Structural and Ornamental Ironworkers, Local 3, 282 NLRB 1375, 1986-87 NLRB Dec. (CCH) ¶ 18,549 (1987) (“[T]he union is not entitled to engage in any coercive conduct, including strikes and picketing, to force the [employer] to execute a successor 8(f) agreement.”), enfd, 843 F.2d 770 (3d Cir.1988). In the present case, however, the Board explicitly stated: We now hold that these statements are inaccurate and conclude that a correct statement of the law is that an employer must be free at all times from any unlawful coercion (as manifested for example by unlimited picketing), in order to ensure that an agreement entered into pursuant to Section 8(f) is ‘voluntary’ within the meaning of that Section. NVE Constructors, 132 LRRM at 1277 (emphasis in original). We have recognized that “[a]n administrative agency is not disqualified from changing its mind; and when it does, the courts still sit in review of the administrative decision and should not approach the statutory construction issue de novo and without regard to the administrative understanding of the statutes.” Mesa Verde, 861 F.2d at 1130 (quoting Iron Workers, 434 U.S. at 351, 98 S.Ct. at 660-61). The Board’s interpretation of sections 8(b)(7)(C) and 8(f) is “rational and consistent with the Act.” IV The Board explained that it has generally defined a “reasonable period of time” as 30 days, except in very limited circumstances, i.e., picketing accompanied by violence or other misconduct on the picket line, [see, e.g., Eastern Camera Corp., 141 NLRB 991, 999 (1963)] and picketing to secure recognition where the Act itself prohibits certification of the picketing union. [See, e.g., Teamsters Local 639 (Dunbar Armored Express), 221 NLRB 1240 (1975), enf'd, 553 F.2d 1368 (D.C.Cir.1977).] The Board has also held that a union cannot picket for an agreement where the employer does not currently employ any employees in the unit sought. [See Operating Engineers’ Local 542 (Noonan, Inc.), 142 NLRB 1132 (1963), enf'd, 331 F.2d 99 (3d Cir.1964).] NVE Constructors, 132 LRRM at 1274 (citations originally in footnotes). By moving immediately from this statement into a consideration of whether it should create a new exception applicable to the facts of this case, see id., the Board implicitly concluded that none of these exceptional circumstances is present here. The Board’s statement of the general rule regarding a reasonable time is consistent with its prior decisions and with the policy underlying section 8(b)(7). In Laborers’ Local 1290 (Walters Foundation), 203 NLRB 397, 1973 CCH NLRB ¶ 25327 at 32627, the Board stated that “findings of violations where picketing has occurred less than 30 days are limited to those cases involving unusual circumstances in connection with picketing, such as when the picketing is accompanied by threats or acts of violence.” See also Tropicana Lodge, 172 NLRB 419, 423-24, 1968-2 CCH NLRB ¶ 20004 (1968) (The reasonable period is “usually considered to be 30 days.”). Section 8(b)(7)(C) is intended “to encourage prompt resort to the Board’s election machinery, rather than protracted picketing, as the method for resolving questions concerning representation.” Retail Clerk Store Employees’ Union Local 1407, 215 NLRB 410, 1974 CCH NLRB ¶ 15304 (citing Dayton Typographical Union v. NLRB, 326 F.2d 634, 636-37 (D.C.Cir.1963)). The Board has explained that shortening the time allowed for picketing is necessary where the employer’s right to implement the expedited election process is effectively negated by the union’s conduct: “Under established Board policy the representation election will not be held until the effects on the employees of unlawful conduct on the part of [the union] have been dissipated. It would be anomalous to hold that respondents may picket until such time as a free election may be held, where [the union’s] conduct has precipitated the delay.” Eastern Camera, 1963 CCH NLRB at 19075 (quoting Cuneo v. United Shoe Workers (Q.T. Shoe Mfg. Co.), 181 F.Supp. 324 (D.C.N.J.1960)). Where there is violence or misconduct on the picket line, the employer’s right to resort to an expedited election is effectively denied because it is unlikely that the election will be truly representative of the employees’ wishes. See id. The employer’s remedy is similarly negated if the Board could not certify the union as the bargaining representative or if there are no employees to vote in an election. Absent some reason that an election would not be possible, however, it is reasonable to determine that the statutory protection of the right to picket, see 29 U.S.C. § 163 (1988), should be construed to allow a union to picket for the full thirty-day period permitted by section 8(b)(7)(C). NVE argues that the Board did not sufficiently consider whether the union’s picketing was reasonable in the present case, citing the Board’s statement in Eastern Camera that “Congress intended that the Board should determine what constitutes a reasonable time in each case and that the 30-day limitation was merely an outside limitation.” 141 NLRB at 999. NVE points to interruption of work and of concrete deliveries as harmful effects mandating a reasonable period shorter than thirty days. More serious interference with work has not persuaded the Board to shorten the period. In Walters Foundation, 203 NLRB 397, 1973 CCH NLRB 11 25327, for example, the Board did not find unreasonable a twenty-two day period of picketing, and in Colson & Stevens Constr. Co., 137 NLRB 1650, 1962 CCH NLRB 1111474, affd in relevant part, 323 F.2d 422 (9th Cir.1963), the Board found the period of picketing not to be unreasonable where suppliers refused to cross the picket lines for 29 days. Furthermore, nothing in the present case prevented NVE from filing for an expedited election and resolving quickly the issue of the union’s majority support. The Board’s determination that the picketing did not exceed a reasonable period of time is thus reasonable and supported by the record. The petition for review of the Board’s order is DENIED. . Section 8(b) provides, in relevant part: It shall be an unfair labor practice for a labor organization or its agent ... (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees: (A) where the employer has lawfully recognized ... any other labor organization ... (B) where within the preceding twelve months a valid election ... has been conducted, or (C) where such picketing has been conducted without a petition under section 159(c) of this title being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing. 29 U.S.C. § 158(b) (1988). . Section 8(f) provides, in relevant part: It shall not be an unfair labor practice ... for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members ... because (1) the majority status of such labor organization has not been established under the provisions of section 159 of this title prior to the making of such agreement ... Provided ... [tjhat any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 159(c) or 159(e) of this title. 29 U.S.C. § 158(f) (1988). . Section 13 provides: "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.” 29 U.S.C. § 163 (1988). "Picketing has been equated with striking for the purposes of § 13.” Curtis Bros., 362 U.S. at 281 n. 9, 80 S.Ct. at 710 n. 9 (citing NLRB v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1277 (1951)). . The Supreme Court has noted the same thing. In interpreting Title VII of the Civil Rights Act of 1964, which “bars sex-based wage discrimination claims ... where the pay differential is ‘authorized,’ 42 U.S.C. § 2000e-2(h) (1988), the Court noted that "[although the word 'authorize' sometimes means simply ‘to permit,’ it ordinarily denotes affirmative enabling action.” County of Washington v. Gunther, 452 U.S. 161, 169, 101 S.Ct. 2242, 2247, 68 L.Ed.2d 751 (1981) (citing Black’s Law Dictionary 147 (1976) and Webster’s Third New International Dictionary 147 (1976)). . For example, Senator Kennedy stated that [i]t was not the intention of the [conference] committee to require by [section 8(f) ] the making of prehire agreements, but, rather, to permit them; nor was it the intention of the committee to authorize a labor organization to strike, picket, or otherwise coerce an employer to sign a prehire agreement where the majority status of the union had not been established. The purpose of this section is to permit voluntary pre-hire agreements.” II Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (1959) at 1715 (Leg.Hist.). Representative Thompson, on the other hand, stated: With respect to the phrase in the last paragraph of the [House Conference Report] that nothing in section [8(f) ] is intended "to authorize the use of force, coercion, strikes, or picketing to compel any person to enter into such prehire agreements," I would state that literally speaking, the above quoted phrase is not incorrect. However, it should be entirely clear that there is no language in the conference report which justifies any implication that section [8(f) ] is intended to deny the right of a union to strike or to picket for a legal object, such as a prehire agreement in the building and construction industry which is validated by section [8(f) ]. Id. at 1721.

10514570-29564

Opinion for the court filed by Circuit Judge RANDOLPH. RANDOLPH, Circuit Judge: In September 1991, the Committee for Purchase from the Blind and Other Severely Handicapped included tabulating machine paper, known by the last four digits of its National Stock Number as “0996,” in the list of commodities all federal government entities must purchase from nonprofit agencies employing blind or other severely disabled persons. At the time of the Committee’s decision, McGregor Printing Corporation was one of two suppliers of 0996 to the federal government. McGregor sued to set aside the Committee’s decision. In a memorandum opinion and order the district court ruled in favor of the Committee. Because we find the Committee’s decision to add 0996 to the fist arbitrary and capricious, we reverse. I In 1938, Congress established the Committee on Purchases of Blind-made Products, composed of “a private citizen conversant with the problems incident to the employment of the blind” and representatives of the Departments of the Navy, War, Treasury, Agriculture, Commerce, and Interior. Act of June 25, 1938, ch. 697, 52 Stat. 1196 (“the Wagner-O’Day Act”). The Wagner-O’Day Act assigned the Committee the duty of determining the fair market price “of all brooms and mops and other suitable commodities manufactured by the blind and offered for sale to the Federal Government by any non-profit-making agency for the blind,” id., and required that in procuring such products, the government should purchase them from the blind so long as the products were manufactured according to federal specifications. See id. Now known as the Javits-Wagner-O’Day Act (“the Act”), the current Act establishes the Committee for Purchase From People Who Are Blind and Severely Disabled, 41 U.S.C. § 46, composed of fifteen members. Eleven represent the Departments of Agriculture, Defense, Army, Navy, Air Force, Health and Human Services, Commerce, Veterans Affairs, Justice, Labor, and the General Services Administration; of the others, one must be conversant with the problems incident to employment of the blind, one must be conversant with the same problems of other severely handicapped individuals, one must represent individuals employed in qualified nonprofit agencies for the blind, and one must represent other severely handicapped individuals so employed. See id. The Committee is responsible for establishing and publishing in the Federal Register a list of commodities and services provided by “qualified nonprofit agencies” for the blind and other severely handicapped individuals which the Committee determines, through informal rulemaking in accordance with 5 U.S.C. § 553(b), (c), (d), & (e), are suitable for procurement by the government, 41 U.S.C. § 47(a). The Committee also must determine, and revise periodically, the fair market value of those commodities and services. See 41 U.S.C. § 47(b). The Act requires that: If any entity of the Government intends to procure any commodity or service on the procurement list, that entity shall, in accordance with rules and regulations of the Committee, procure such commodity or service, at the price established by the Committee, from a qualified nonprofit agency for the blind or such an agency for other severely handicapped.... 41 U.S.C. § 48. “[Qualified nonprofit agency for the blind” is defined, in part, as a nonprofit organization operated in the interest of blind individuals that, in the production of commodities and in the provision of services (whether or not the commodities or services are procured under this Act) during the fiscal year employs blind individuals for not less than 75 per centum of the man-hours of direct labor required for the production or provision of the commodities or services. 41 U.S.C. § 48b(3). “[D]irect labor” is defined as “all work required for preparation, processing, and packing of a commodity, or work directly relating to the performance of a service, but not supervision, administration, inspection, or shipping.” 41 U.S.C. § 48b(5). The Act directs the Committee to “designate a central nonprofit. agency or agencies to facilitate the distribution ... of orders of the Government for commodities and services on the procurement list among qualified nonprofit agencies for the blind or such agencies for other severely handicapped.” 41 U.S.C. § 47(c). The Committee revised its regulations after it had added 0996 to the procurement list but before the Committee rejected McGre-gor’s petition for reconsideration. See 56 Fed.Reg. 48,974 (Sept. 26, 1991) (effective date Oct. 28,1991). Both sets of regulations closely track the Act’s language. In order for the Committee to conclude that a commodity is suitable for addition to the procurement list, the Committee is required to determine a fair market price for the commodity and to determine that a qualified workshop is capable of producing the commodity at that price and in accordance with government quality standards and delivery schedules. See 41 C.F.R. §§ 51-2.5, 51-2.6(a)(l) & (b) (1990); 41 C.F.R. §§ 51-2.2(c), 51-2.4(c) & (d) (1993). The Committee must determine that “[t]he addition of the commodity ... to the Procurement List would not have a serious adverse impact on the current or most recent contractor for the commodity.” 41 C.F.R. § 51-2.6 (1990); see 41 C.F.R. § 51-2.4(e) (1993). To these conditions, the new regulations add an explicit requirement that “the proposed addition must demonstrate a potential to generate employment for persons who are blind or have other severe disabilities.” 41 C.F.R. § 51-2.4(a) (1993). In making the first determination, the fair market price for the commodity, the Committee shall: consider recommendations from the procuring agencies and the central nonprofit agency concerned. Recommendations for fair market prices ... shall be submitted by the workshops to the central nonprofit agency representing the workshop. The central non-profit agency shall analyze the data and submit a recommended fair market price to the Committee along with the detailed justification necessary to support the recommended price. 41 C.F.R. § 51-2.5 (1990); see 41 C.F.R. § 51-2.7 (1993) (substantially similar). This is explained in more detail in an extensive series of Pricing Memoranda and in instructions accompanying the forms on which the central nonprofit agency’s submissions are required to be made. Simply put, “[t]he initial price for a commodity which has been recently procured by the Government shall be the median of those bids for that commodity which are not more than 35% above the award price, or the award price increased by 5%, whichever is greater.” Committee for Purchase From the Blind and Other Severely Handicapped, Pricing Memorandum No. 1— Oct. 16, 1989. The factors relevant to the Committee’s determination that a nonprofit agency for the blind or other severely handicapped is “qualified” are found in three places in the regulations. The first, the definition of “[qualified nonprofit agency for the blind,” see 41 C.F.R. § 51-1.2(h) (1990); 41 C.F.R. § 51-1.3 (1993), is nearly identical to that in the Act, requiring that the agency be operated in the interest of the blind, and not for profit, and that 75 percent of the man-hours of direct labor required for production be performed by the blind. The second is in the discussion of suitability. The 1990 regulations required that a specific workshop must: satisfy the Committee that it will have the capability to meet the Government’s quality standards and delivery schedules by the time it assumes responsibility for supplying the Government under the Act and that it can supply he [sic] commodity or service at a fair market price. 41 C.F.R. § 51-2.6(b) (1990). The revised regulations are substantially similar, see 41 C.F.R. § 51-2.4(c) & (d) (1993), but require in addition that the workshops “satisfy the Committee as to the extent of the labor operations to be performed.” Id. § 51-2.4(c). This addition, like the added suitability requirement noted above, derives from the Committee’s determination, discussed in the preamble of the final rule, that “it is the policy of the Government to increase employment and training opportunities for persons who are blind or have other severe disabilities through ... the [Javits-Wagner-O’Day program].” (56 Fed.Reg. at 48,974). Third, the workshop must meet detailed application, recordkeeping, and financial requirements specified at 41 C.F.R. pt. 51-4 (1990 & 1993). The portion of the regulations concerning “serious adverse impact” provides: (d) In deciding whether or not a proposed addition to the Procurement List would have a serious adverse impact on the current or most recent contractor for the particular commodity or service, the Committee gives particular attention to: (1) The possible impact on that contractor’s sales, including any cumulative impact as the result of other recent Committee actions. (2) Whether or not that contractor has been a continuous supplier to the Government of the specific commodity or service proposed for addition- and is, therefore, more dependent on the income from such sales to the Government, and (3) Any substantive comments received as the result of the notice in the FEDERAL Register. 41 C.F.R. § 51-2.6(d) (1990); see 41 C.F.R. § 51-2.4(e) (1993) (no substantive changes). The Committee has made this determination, almost exclusively, by reviewing GSA contracts, bid sheets and the current suppliers’ Dun & Bradstreet Reports to learn what percentage of the suppliers’ total sales stemmed from providing the commodity to the government. See, e.g., Barrier Indus., Inc. v. Eckard, 584 F.2d 1074, 1082-83 (D.C.Cir.1978). The Committee has not stated what proportion of the suppliers’ sales would have to be lost to constitute a “serious adverse impact.” With approximately 100 new commodities and services added to the procurement list each year, the list now contains approximately 4,500 entries. In 1993, procurement under the Act brought more than 500 nonprofit agencies for the blind and severely handicapped persons approximately $75.6 million in government contracts, and resulted in the employment or training of more than 23,000 Americans with disabilities. Beverly L. Milkman, et al., Who are they? some answers from a survey of Javits-Wagner-O’Day employees, AmericaN Rehabilitation, Spring 1993, at 7, 8, 10. Due to the large scope of the program and the small size of the Committee’s resources — Congress appropriated only $1.6 million for the Committee’s fiscal year 1991, see Kenneth R. Laureys, The JWOD Program and NISH: making America strong by employing people with severe disabilities, AmeRican Rehabilitation, Spring 1991, at 14 — the Committee relies heavily on the two central nonprofit agencies it has designated under the Act, 41 U.S.C. § 47(c), to represent the workshops for the blind and other severely handicapped: the National Industries for the Blind (“NIB”) and the National Industries for the Severely Handicapped. In return for their assistance, the central agencies receive a four percent commission of the contracts received by the workshops. II On May 21, 1991, NIB submitted to the Committee a request for the addition of 0996 to the procurement list. In its request and the accompanying documentation, NIB certified that an NIB engineer had visited six workshops for the blind and found them able to produce the government’s total annual requirement for 0996 (1,053,981 boxes). NIB calculated the fair market price for 0996 to be $13.02 per box, or a total of $13,722,-832.07. It certified that the workshops would be able to produce 0996 for that price, and that doing so would create 78 new jobs for blind workers. With the application, NIB also submitted a form listing two current and three prior contractors for 0996, and information regarding how adding 0996 to the procurement list would affect the sales of the two current contractors. NIB also submitted forms on which the participating workshops certified, with NIB’s concurrence, that their employment of blind persons would make up between 95 and 100 percent of the total direct labor hours required for producing 0996. The Committee staff reviewed NIB’s submission and, on May 23,1991, requested GSA to inspect the six workshops and to review their capacity to produce 0996. On May 24, the Committee published a Notice of Proposed Rulemaking in the Federal Register proposing the addition of 0996 to the procurement list. See 56 Fed.Reg. 23,875-76 (1991). The Committee extended the initial closing date for comments to July 5, 1991, at McGregor’s request. In its comments, McGregor described in some detail the effect adding 0996 to the procurement list would have on the forms industry as a whole. The industry, McGre-gor said, relied on the production of 0996 to provide volume savings in raw materials and distribution; adding 0996 to the distribution list would, therefore, cause an increase of as much as 50 percent in the government’s cost for other paper products. According to McGregor, the industry is suffering from over-capacity and thus the loss of this business would cause economic hardship. McGregor questioned the ability of the blind workshops and blind workers to produce 0996, citing the high capital costs involved in entering the forms business, the need for quick and precise work, and the dangerous production equipment. McGregor’s comments were accompanied by a statement from McGregor’s vice president, Victor Kra-kower, reiterating the condition of the forms industry and the requirements and dangers of the production process. On July 22, 1991, the Committee’s executive director, Beverly L. Milkman, sent the full text of McGregor’s comments, and the comments of a trade association, plus a four- page staff summary and analysis, to the Committee members for a vote on the addition of 0996 to the procurement list. The staffs analysis responded to McGregor’s substantive comments in a terse and eonclusory manner. The Committee approved the addition several days later. Before the Committee’s vote, GSA reported to the Committee staff on the results of its inspections. GSA expressed concern that none of the workshops would be prepared to supply 0996 as of the start date GSA had been given. GSA also worried about the sufficiency of the space allotted by one of the workshops for production and storage, and the price at which the workshops would be able to deliver 0996. While GSA’s concern about timing had been partially alleviated by an agreement between GSA and the Committee staff in early July, which adopted phased-in startup dates and a four-month option to purchase 0996 from private suppliers to meet short-falls, GSA was still not completely satisfied as of the date of the Committee’s vote. On August 8, as a result of GSA’s continuing questions, Milkman submitted to the Committee members a short memorandum noting GSA’s problems with the competitiveness of the workshops’ price for 0996, the space the workshops were allotting to production and storage, employee training, the ability of all of the workshops to meet the contractual start date, and overly optimistic production capacity expectations. Milkman also furnished a staff response to each of the problems GSA identified. The Committee members were given the opportunity to change their votes. None did. The Committee’s decision to add 0996 to the procurement list, reported in the Federal Register on August 16, 1991, adopted the staff analysis sent to the Committee as part of the decision packet as the Committee’s concise general statement of the regulation’s basis and purpose. See 56 Fed.Reg. 40,873 (1991); see also HLI Lordship Indus., Inc. v. Committee for Purchase from the Blind & Other Severely Handicapped, 791 F.2d 1136 (4th Cir.1986). After submitting several Freedom of Information Act requests for the documents on which the Committee relied in adding 0996 to the procurement list, McGregor petitioned the Commission for reconsideration of its decision. McGregor argued that none of the Committee’s determinations — that the workshops had the capacity to produce 0996, that the certified level of blind labor could be employed, that the workshops could produce 0996 at the stated fair market price, and that there would not be a serious economic impact on the current suppliers — were supported by the record. McGregor cited the GSA reports and submitted an affidavit from Louis M. Byron, McGregor’s president, in which Byron provided detailed figures concerning the capital and labor qosts and shift requirements for producing 0996, as well as information on the specific employees required for each stage of the production process. He estimated that McGregor could only employ six completely blind persons in the process. The Committee denied McGregor’s petition for reconsideration and the district court granted the Committee’s motion for summary judgment, dismissing McGregor’s challenge to the 0996 decision. Ill Under the Administrative Procedure Act, a reviewing court must “hold unlawful and set aside agency action” that is “arbitrary” and “capricious.” 5 U.S.C. § 706(2)(A). In informal rulemaking cases, three questions are often considered under this heading: (1) whether the rulemaking record supports whatever factual conclusions underlie the rule; (2) whether the policy-determinations behind the rule are rational; and (3) whether the agency has adequately explained the basis for its conclusion. The Committee comes up short on all three. McGregor’s comments indicated that the workshops would not be able to produce 0996 either in sufficient volume or at the declared fair market price. The Committee responded thus: “[t]he Committee has also determined that the nonprofit agencies which will produce the item have the necessary financial capability, and that the item will be furnished to the Government at a fair market price.” 66 Fed.Reg. at 40,874. On what did the Committee base this factual conclusion? No one can tell on this record. The Committee’s explanation for its conclusion that the workshops would be able to produce 0996 with the certified level of blind labor is of the same order: The nonprofit agencies for the blind and their central nonprofit agency have a long history of adapting industrial equipment and training blind workers to ensure safe and efficient operations. The Committee took this into account in finding the agencies capable of producing this item. Id. Past performance is important. It is perfectly proper for the Committee to take “this into account” in deciding future capability. But these are generalities. What of the specifics with respect to 0996? What “industrial equipment” could be adapted? Could blind workers be trained to operate that equipment safely and efficiently? Which jobs could blind workers perform? On what basis did the Committee reach a conclusion regarding the number of blind workers that would be employed? The record again is silent. When McGregor moved for reconsideration, it supplied an affidavit from its president giving job descriptions of the workers needed to produce 0996 and the number of blind employees he believed could be hired to fill those positions. On each eight-hour shift, McGregor employs eleven persons: two operators, two boxers, two labelers, one quality control person, one load-up man, one material handler, one “bailer room man-scrap,” and one warehouseman. In the president’s judgment, only the labelers could be blind. He concluded that NIB might be able to employ as many as 9 blind people, but not the 78 NIB estimated. The record contains the staffs response: [t]he Committee has explicit guidelines on the nature of the information to be provided by NIB and the nonprofit agencies with respect to the number of hours of direct labor to be performed by legally blind employees. Officials of both NIB and the individual nonprofit agencies are required to sign statements certifying the validity of the information submitted. This certification approach is comparable to that employed by many federal agencies, and [McGregor’s attorney] was provided with copies of the various certifications in response to his FOIA request. In addition, as is obvious to anyone who has visited a blind nonprofit agency and observed the varied functions performed by legally blind persons, the analysis presented by McGregor’s President is flawed. This is partially because he appears to be assuming that all blind workers are totally blind.[ ] However, it is also because he lacks knowledge of the types of accommodations made by nonprofit ageneies employing blind persons to permit totally blind workers to perform a wide variety of functions, including those identified in his analysis. This is insufficient. The questions McGregor raised are questions of fact: are blind workers capable of performing the jobs needed to produce this particular product? The questions cannot be answered merely by pointing to the general experience of NIB and the workshops. There is nothing in the record to support the Committee’s apparent conclusion that blind people could do the work McGregor’s president described. From all that appears, the Committee never analyzed the 0996 production process or the experience of NIB or the workshops in producing similar products. NIB has expertise in the employment of blind workers, but McGregor has expertise in forms production. It is true that “neither the Act nor the regulations require that a workshop for the blind actually produce a commodity prior to its inclusion on the procurement list,” Barrier Indus., 584 F.2d at 1080. But if the workshops have no experience in producing a particular commodity, the Committee cannot — in the face of serious questions raised by an experienced manufacturer — simply fall back on NIB’s general experience with blind workers. We do not believe these gaps are filled by the argument, made here and in the district court, that neither the Act nor the Committee’s regulations require the workshops to use 75 percent blind labor to produce any single commodity. The idea is that the Act’s definition of qualified nonprofit agency requires only that the agency employ “blind individuals for not less that 75 per centum of the man-hours of direct labor required for the production or provision of the commodities or services.” 41 U.S.C. 48b(3)(C) (emphasis supplied). Thus, under the Act, the controlling inquiry is whether the commodities can be produced by a nonprofit agency that produces its total products with at least 75% blind labor. Brief for Federal Appellees at 24. In other words the workshops are “qualified nonprofit ageneies for the blind,” and, therefore, McGregor’s argument that the workshops cannot hire blind workers to perform nearly 100 percent of the direct labor for 0996 is irrelevant. Whatever may be said of the argument, there is no indication the Committee adopted it. Indeed, all indications point in the opposite direction. The Committee’s staff relied on the NIB’s and workshops’ statements certifying that nearly 100 percent of the direct labor on 0996 would be performed by the blind. Also important are the Committee’s revised regulations, rewritten after “extensive” and “comprehensive” review conducted contemporaneously with the decision here regarding 0996, see Notice of Proposed Rule-making, 56 Fed.Reg. 29,760 (June 28, 1991) (Comments due by Aug. 27, 1991), and effective prior to the Committee’s denial of McGregor’s request for reconsideration, see 56 Fed.Reg. at 48,974. One provision in the revised regulations focuses on the employment opportunities created by the addition of each new commodity to the procurement list. See 41 C.F.R. § 51-2.4(a) (1993). While the new language is vague enough to leave room for another interpretation, it raises serious doubts about whether the Committee based its decision to add 0996 to the procurement list on the understanding, advocated by appellate counsel, that it could add a commodity to the procurement list even though no blind persons would be employed in its production. We therefore cannot sustain the Committee’s action on this basis. See Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 2870, 77 L.Ed.2d 443 (1983); see also Burlington Truck Lines, 371 U.S. at 168-69, 83 S.Ct. at 245-46. As to the Committee’s determination that the workshops would be able to produce 0996 at a fair market price, the record again falls short. The statement in the Federal Register merely reports the Committee’s conclusion “that the nonprofit agencies which will produce the item have the necessary industrial and financial capability, and that the item will be furnished to the Government at a fair market price.” 56 Fed.Reg. at 40,874. This gives everything but the why. To be sure, the APA requires only that an agency “incorporate[ ] in the rules adopted a concise general statement of their basis and purpose,” 5 U.S.C. § 553(c). But there is nothing else in the rulemaking record to explain on what basis the Committee reached its determination. The only nonconclusory statement is the Committee staffs December 19, 1991, memorandum, responding to McGregor’s petition for reconsideration. It asserts: The Committee’s pricing procedures permit the price to be modified if the cost of paper changes. Thus, the nonprofit agencies and the contracting activity are protected against changes in the cost of paper which could benefit or harm either. It should also be pointed out that NIB is responsible for initially calculating the proposed fair market price (the calculations and the bid data on which they are based are' subsequently checked by Committee staff). In addition, NIB possesses cost data from the nonprofit agencies involved which indicates that the agencies can produce the item for the proposed fair market price. Moreover, each 1 nonprofit agency involved has provided written verification to NIB that it will produce the item for the price calculated. Consequently, NIB would not have submitted materials seeking a Committee decision to add the tabulating paper if the nonprofit agencies had not indicated that they could produce it for the proposed fair market price. If anything, this statement tends to show that the Committee may have entirely ignored the information McGregor submitted concerning the capital and labor costs incident to entering the forms production business. The Committee’s counsel contends, however, that all of this is a red herring. The argument is that in order to find workshops “qualified” under the Act and Committee’s regulations, the Committee need only determine that the workshops will sell the commodity to the Government at the calculated fair market price. In other words, the Committee does not have to bother inquiring about whether the workshops can break even, let alone make a profit, at that price. Because the Act’s purpose was to provide employment for the blind or others severely disabled, commodities and services can be taken out of competitive bidding in the private sector and added to the procurement list even when' the workshops producing the commodity lose money doing so. The district court accepted this argument. We cannot because, as we have already said, there is no way of telling whether the Committee followed this sort of reasoning and this interpretation of the Act and the regulations. Since we cannot rely upon appellate counsel’s interpretation of the Act to uphold the Committee’s decision, and because the reasons the Committee clearly articulated are not sufficient, the Committee’s adding 0996 to the procurement list is declared unlawful and vacated. Reversed. . At the time of the decision under review, the Committee was called the Committee for the Purchase from the Blind and Other Severely Handicapped. The name was changed to its current form in 1992. Act of Oct. 29, 1992, Pub.L. No. 102-569, tit. IX, subtit. B, § 911(a), 106 Stat. 4344, 4486. . The Act lists the Department of Health, Education, and Welfare. Under 20 U.S.C. § 3508, all references to HEW in the United States Code are to be considered references to HHS. . Neither the parties nor the intervenor saw fit even to mention the changes. For the most part, the revisions merely altered terminology. 56 Fed.Reg. 48,974 (Sept. 26, 1991). . The information necessary to calculate the percentage of the current contractors’ sales affected by the Committee's decision has been redacted from the form submitted to this court as part of the Appendix. . The district court properly rejected McGregor’s argument that the Committee failed to consider sufficiently the adverse impact caused by the addition of 0996 to the procurement list. In its comments, McGregor made general claims that the addition of 0996 would cause the forms industry severe economic harm; in its petition for reconsideration, McGregor further alleged an NIB strategy to take over the forms business. McGregor did not, however, provide the Committee with sufficient information for it to be able to evaluate those assertions. We rejected a similar claim that the Committee's analysis of adverse impact failed to consider relevant factors in Barrier Indus., 584 F.2d at 1082-83. There, we concluded that Barrier had not presented to the Committee the information it needed to assess the company's claim. The Committee, we held, "was not under any obligation to solicit information directly from Barrier." Id. at 1083. So here.

9340560-17826

POSNER, Circuit Judge. Four black employees of the Chicago Transit Authority charge racial discrimination (two of the plaintiffs also charge retaliation for complaining about discrimination) by their employer in violation of Title VII and related statutes. The district court granted summary judgment for the defendant. We begin with the two women, Allen and Burnette, personnel specialists who sought promotion to managerial positions in their department and were passed over in favor first of a white man named Lebrón in 1995 and two years later in favor of another white man, named Reilly, who had only recently become a personnel specialist. Lebron’s promotion was not within the 300-day statute of limitations for a Title VII claim, 42 U.S.C. § 2000e-5(e)(1), and so the district court held the women’s complaint about his being promoted ahead of them to be time-barred. That was an error. Until they were again passed over in favor of a white person, they had no reason to believe that race had played a role, for Lebrón unlike Reilly was not a surprise choice. Equitable tolling delays the running of the statute of limitations until the plaintiff by exercise of due diligence should have realized that he had a claim. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2072, 153 L.Ed.2d 106 (2002); Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1143-44 (7th Cir.1992); Brennan v. Daley, 929 F.2d 346, 349 (7th Cir.1991). That did not occur in this case until Reilly’s promotion. The general manager of the department, Tapling, made the appointments and was the defendant’s key witness with regard to the Allen and Burnette claims. Regarding Lebron’s promotion, she testified that Allen’s lack of a master’s degree precluded her from consideration for the job — yet on the interview form Tapling had rated Allen’s education “suitable” for the job. Regarding the Reilly promotion, Tapling told investigators from the CTA’s affirmative action unit and the Illinois human rights agency that although the two women had far more experience than Reilly, having been personnel specialists for a decade or more and he for just two years, he had more initiative as shown by his having worked overtime on at least 16 days in a two-month period in order to learn a new photo ID computer system, whereas Allen and Burnette were reluctant to work overtime. However, the CTA’s time sheets showed that Reilly stayed late on only three days during the two-month period, and all were days on which he had started work late, and that Allen and Burnette put in at least as much extra time as Reilly. Tapling’s boss testified that Reilly got the job because he interviewed better than Allen or Burnette — but Tapling testified that there were no interviews. There is more. Tapling had told the investigators that she had passed over Allen because of too many absences, lack of maturity, and lack of a master’s degree (which Reilly had). But at her first deposition she testified that Allen’s absences had played no role in her decision; and the CTA’s records did not sustain the charge that Allen had unexcused absences. At her second deposition, Tapling backtracked, saying she was no longer confident that absences had not been a factor in her passing over Allen. In a subsequent affidavit, she belatedly accused Allen of excessive absenteeism. Regarding Allen’s maturity, she said that once Allen had come crying to her after being abused by another employee — but Allen was not at work on the day of the alleged abuse. Although Reilly had a master’s degree and the women did not, the master’s degree was not in human relations but in communications, and the managerial job to which Tapling appointed him did not require a master’s degree. Tapling accused Burnette of “theft” for having run up a bill of $140 for personal long-distance calls. But Burnette was not disciplined (she reimbursed the CTA), and another employee who committed the identical “theft” and also was not disciplined for it was promoted. When a qualified black person is passed over for a promotion in favor of a white, and the employer offers a noninvidious reason that a jury would be free to disregard because the genuineness of the reason has been challenged by substantial evidence, summary judgment for the employer is improper. E.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146-49, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Traylor v. Brown, 295 F.3d 783, 790 (7th Cir.2002); Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 291-92 (7th Cir.1999); Mills v. Health Care Service Corp. 171 F.3d 450, 458 (7th Cir.1999). Tapling offered noninvidious reasons for promoting Lebrón and then Reilly rather than either Allen or Burnette, but a jury would be entitled to find that the reasons she offered were lies. When a witness repeatedly contradicts himself under oath on material matters, and contradicts as well documentary evidence likely to be accurate (the time sheets, for example, whose reliability was attested by several witnesses), the witness’s credibility becomes an issue for the jury; it cannot be resolved in a summary judgment proceeding. Perfetti v. First National Bank, 950 F.2d 449, 456 (7th Cir.1991); Cameron v. Frances Slocum Bank & Trust Co., 824 F.2d 570, 575 (7th Cir.1987). It is not even clear what it would mean to say that the district court was entitled to treat Tapling’s testimony as gospel truth — does this mean that Allen’s absences played a role in Reilly’s promotion, or played no role? Tapling said both things under oath. The insouciance with which the defendant treats Tapling’s possibly dishonest testimony is in ironic contrast with its insisting, as we shall see that it does, that plaintiff Leonard’s perjury at his deposition should bar his claim altogether. The district court refused to give any weight to the finding by the CTA’s own investigator that Tapling’s explanation for Reilly’s promotion was not credible. This was another error. The finding was admissible as an admission made by an employee of a party opponent within the scope of his employment, Fed.R.Evid. 801(d)(2)(D); Stagman v. Ryan, 176 F.3d 986, 996 (7th Cir.1999), and as an investigative report of a public agency. Fed. R.Evid. 803(8)(C); Tuohey v. Chicago Park District, 148 F.3d 735, 739-40 (7th Cir.1998). How much weight to give such admissions (for they are evidentiary rather than judicial admissions and hence not binding, id. at 740; see also Higgins v. Mississippi 217 F.3d 951, 954 (7th Cir.2000)) is for the jury to decide, not the judge in ruling on a motion for summary judgment. So the grant of summary judgment against Allen and Burnette must be reversed, and we move on to Newberry. He was a computer programmer and complains primarily that like Allen and Burnette he was passed over for a promotion in favor first of one white person, Otto, and then of another, Goyal. Otto, however, was promoted only in the sense of being given a higher rank and salary; rather than fill a vacancy, he continued in the same job that he had had before his promotion. For Newberry to have been given Otto’s “promotion” would have meant bouncing Otto from a job that he had been performing adequately, indeed with sufficient distinction to warrant a promotion. As for the job that Goyal obtained, Newberry probably failed to show that he was qualified to perform the duties of the job, and certainly failed to show that he was as well qualified as Goyal. There is no other evidence that the denial of the promotions was racially motivated. It is true that, like Allen and Bur-nette, Newberry submitted a report by a CTA investigator. But the report is not probative. It was written before the two promotions that Newberry claims he was denied for racial reasons, and it contains no evidence concerning his qualifications for the promotions relative to the qualifications of Otto and Goyal, nor any other evidence bearing on the employer’s motivation. Newberry also claims that he was a victim of harassment. He alleged that the motive behind the harassment was the fact that he had complained about discrimination and on the basis of this allegation the district court ruled that Newberry was charging retaliation and that he could not do this because he had failed to file a complaint of retaliation with the EEOC. Discrimination and retaliation are separate wrongs, as is obvious in cases (which this case is not, however) in which the person retaliated against is not a member of the group that is the target of the alleged discrimination. It is the motive for, rather than the character of, the actions taken against the employee that determines whether the claim is one of retaliation. See Heuer v. Weil-McLain, 203 F.3d 1021, 1024 (7th Cir.2000); Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 26 (1st Cir.2002). If a black employee, such as Newberry, is discriminated against, complains, and then is further discriminated against, the further discrimination being motivated however by the complaint rather than by the employee’s race as such, that further discrimination is discrimination against eomplainers rather than against blacks; for a white who complained would be treated the same way. The judge thus properly barred Newberry from pressing his claim for retaliation; and Newberry has forfeited any claim of racial harassment by failing in his brief in this court to indicate in even a minimally coherent manner (see Jones Motor Co. v. Holtkamp, Liese, 197 F.3d 1190, 1192 (7th Cir.1999); Colburn v. Trustees of Indiana University, 973 F.2d 581, 593 (7th Cir.1992); Karibian v. Columbia University, 14 F.3d 773, 777 n. 1 (2d Cir.1994)) what acts he contends were acts of harassment motivated by his race and whether they added up to a materially adverse employment action, which must be shown for employment discrimination to be actionable under Title VII. See, e.g., Herrnreiter v. Chicago Housing Authority, 315 F.3d 742, 743-44 (7th Cir.2002). Newberry complains that the district judge did not give him time to complete discovery, but there is no merit to that complaint; the judge found, not unreasonably, that Newberry’s lawyer had frittered away the time that he had been given for conducting discovery. See United States v. All Assets & Equipment of West Side Building Corp., 58 F.3d 1181, 1190-91 (7th Cir.1995). We come last to Leonard, an employee in the CTA’s printing shop who alleges numerous acts of retaliation for his numerous complaints of discrimination. The alleged retaliatory acts were various disciplinary measures, such as warning letters and suspensions, for various infractions. His claim is fatally undermined by uncontroverted evidence of infractions and discipline prior to his complaints not offset by any evidence that might nevertheless convince a reasonable jury that had it not been for his complaints, he would not have been disciplined as often or as severely as he was. We give some examples of the discipline alleged to be retaliatory to which he was subjected: 1. He was transferred to a lower-paid job operating a different machine after a fight with another worker. He does not deny that the fight took place, and since the other worker was permanently assigned to the original machine, while Leonard was working there only temporarily, no inference of retaliation can be drawn from the fact that the employer separated the fighters by moving Leonard. 2. He admits that the reason for a two-day suspension was his refusal to cut paper. He says that he simply demanded to be paid appropriately for the work and that his union representative was there as a witness. The representative said that Leonard’s supervisor became enraged and screamed at Leonard. No matter; Leonard’s own description of the incident indicates that the cause of the suspension was the employer’s irritation (whether warranted or not) with Leonard and the union about their making what the supervisor regarded as a fuss over the correct pay for cutting paper. 3. A five-day suspension occurred after Leonard and several other workers had reported four hours of overtime instead of the three they worked. All the employees were disciplined identically. 4. Leonard’s best evidence of retaliation involves the 12-month probation on which he was placed after he got into another fight with the worker mentioned in paragraph 1 above, who by this time however was a supervisor. Leonard claims that the fight was merely a “discussion.” But whether it was an actual fight (as the history suggests) or Leonard was simply mouthing off at the supervisor, we do not think that, given all the uncontra-dicted evidence of Leonard’s chronic insubordination, a reasonable jury could find that the suspension was motivated by his complaints of discrimination. Two issues relating to Leonard’s claim merit further discussion, however. They arise from the same incident, namely an act of perjury at his deposition, where he claimed to have recorded certain conversations that he contended supported his charge of retaliation. He later admitted that he had not recorded them. The statement in his deposition was a lie and was material, and so it was indeed perjurious. By way of sanction the district court ordered Leonard to pay the defendant, in ten installments of $400 each, $4000, representing the defendant’s legal expense caused by the lie. (Leonard challenges the order, but his challenge has no merit.) This was before the court entered summary judgment for the defendant. When Leonard was late in paying the first installment, the defendant moved to dismiss the suit as a sanction for the default. The judge denied the motion without explanation after Leonard finally paid the installment. Leonard continued paying for a time, but after he reached $2000 he stopped, informing the court that he couldn’t afford to pay any more, though he later paid another $200. As of September 24, 2002, when this case was argued, he still owed $1800 and we assume he still does as otherwise we would certainly have heard from his lawyer. The defendant asks us to dismiss Leonard’s appeal as a sanction for his continuing disobedience of the district court’s order to pay. Willful disobedience of a judicial order is contempt of court, and among the sanctions that may be appropriate for such contempt is barring an appeal from the judgment in the litigation in which the order was issued. This would not be appropriate if the order had been disobeyed before the district court entered its judgment, for then that court would be in the best position to mete out an appropriate sanction. But that is not quite this case, as the defendant is complaining to us about Leonard’s continuing contumacy after the appeal was filed and the district judge thus had lost jurisdiction. A willful failure to pay fees due in the trial court or fines or other monetary sanctions imposed by that court strikes us as a reasonable ground for dismissing an appeal, with the effect of dismissing the appellant’s suit. But not in this case, as there has been no determination that Leonard’s continuing failure to pay is willful, which it is not if he simply does not have any money. His lawyer tells us that Leonard is unemployed and bankrupt; this is of course entirely possible though we cannot be certain of it because, to repeat, there has been no evidentiary hearing. We could remand with directions to the district court to conduct such a hearing, or we could instead appoint a special master to conduct a hearing in this court, but there is no point in embarking on either course since Leonard’s appeal has in any event no merit. The defendant also argues that even if Leonard had paid the fine in full and had presented evidence of retaliation, we would have to affirm because of his perjury. There are two ways to characterize such an argument. The first is that perjury should estop a litigant to continue litigating the claim out of which the perjury arose. The second is that perjury warrants disbelieving all the perjurious litigant’s testimony. The first position is untenable if stated as a rule rather than an option. We noted that the district judge had in effect fined Leonard $4000 for his perjury; there are also of course criminal sanctions for perjury, although they are rarely invoked; and an alternative to either a monetary or a criminal sanction might indeed be to throw out the perjurious litigant’s case. Martin v. DaimlerChrysler Corp., 251 F.3d 691, 695 (8th Cir.2001); cf. Thomas v. General Motors Acceptance Corp., 288 F.3d 305, 306-07 (7th Cir.2002). Perjury-committed in the course of legal proceedings is a fraud on the court, and it is arguable that a litigant who defrauds the court should not be permitted to continue to press his case. This would depend on the circumstances, however. In re Hall, 304 F.3d 743, 748-49 (7th Cir.2002). In general the severity of a sanction should be proportioned to the gravity of the offense, Bolt v. Loy, 227 F.3d 854, 856-57 (7th Cir.2000); Lorenzen v. Employees Retirement Plan of the Sperry & Hutchinson Co., 896 F.2d 228, 232-33 (7th Cir.1990), and while perjury is a serious offense, one can imagine cases in which a sanction of dismissal would be excessive. Suppose the opposing litigant had perjured himself as well. Or suppose the perjury was clumsily committed and quickly discovered, as indeed happened here. If the perjury were harmless so far as affecting the course of the litigation was concerned, it might still be deserving of criminal punishment yet dismissal might be excessive from the perspective of a civil litigation. See Shepherd v. American Broadcasting Cos., Inc., 62 F.3d 1469, 1480 (D.C.Cir.1995). This may be such a case, though we need not decide, since, to repeat, Leonard’s claim must be rejected in any event.

3954070-27893

STRAUB, Circuit Judge: In these cases, which we heard in tandem and now consolidate for disposition, Petitioners Karen Nicola Alsol and Donald Overton Powell seek review of decisions of the Board of Immigration Appeals (“BIA”) vacating decisions by an Immigration Judge (“IJ”) granting them cancellation of removal. In 07-2068-ag(L) and 08-1942-ag(CON), Petitioner Alsol appeals from orders of the BIA (1) sustaining the Department of Homeland Security’s (“DHS”) appeal and vacating the October 31, 2006 decision of IJ Alan A. Vomacka granting her application for cancellation of removal, In re Karen Nicola Alsol, aka Karen N. Alsol, No. [ AXX XXX XXX ], 2007 WL 1430917 (B.I.A. Apr. 16, 2007), vacating No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Oct. 31, 2006), and (2) denying her motion to reopen or reconsider, In re Karen Nicola Alsol, aka Karen N. Alsol, No. [ AXX XXX XXX ], 2008 WL 1734616 (B.I.A. Mar. 25, 2008). In 08-112-ag, Petitioner Powell appeals from a BIA decision sustaining the DHS’s appeal from IJ Noel Ann Brennan’s order granting cancellation of removal. In re Donald Overton Powell, No. [ AXX XXX XXX ] (B.I.A. Feb. 25, 2008), vacating No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Oct. 29, 2004). We grant the petitions for review, vacate the decisions below, and remand for proceedings consistent with this opinion. BACKGROUND The issue in these cases is whether a second conviction for simple drug possession under state law is a felony under the Controlled Substances Act (“CSA”) because it could have been prosecuted as a recidivist offense under 21 U.S.C. § 844(a). We hold that it is not. We further clarify that our sentencing decision in United States v. Simpson, 319 F.3d 81 (2d Cir.2002), does not foreclose this holding. I. Karen Nicola Alsol On September 5, 2002, Alsol pled guilty to one count of criminal possession of a controlled substance in the seventh degree in violation of New York Penal Law § 220.03 for possession of a controlled substance. She was sentenced to three days’ imprisonment. On February 27, 2003, Al-sol again pled guilty to one count of criminal possession of a controlled substance in the seventh degree; she was sentenced to five days’ imprisonment. Three years later, on July 18, 2006, DHS took Alsol into custody and placed her in removal proceedings. In front of the IJ, Alsol conceded that she was removable under 8 U.S.C. § 1227(a)(2)(B)(I) for having been convicted of a crime relating to a controlled substance. However, she did not concede she was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for an aggravated felony conviction and applied for cancellation of removal under 8 U.S.C. § 1229b(a). On October 31, 2006, IJ Vomacka found that Alsol’s second possession conviction was not an aggravated felony and that she was eligible for cancellation of removal, relying on In re Elgendi, 23 I. & N. Dec. 515 (B.I.A.2002). Upon finding that Alsol warranted a favorable exercise of discretion, the IJ granted her application for cancellation of removal. On December 5, 2006, the U.S. Supreme Court decided Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), holding that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” 127 S.Ct. at 633. At the same time, in a footnote, the Court noted: Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as ... recidivist possession, see 21 U.S.C. § 844(a), clearly fall within the definitions used by Congress in 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute “illicit trafficking in a controlled substance” or “drug trafficking” as those terms are used in ordinary speech. Id. at 630 n. 6. On April 16, 2007, in a divided decision, the BIA sustained DHS’s appeal in Alsol’s case, vacated the IJ’s decision, found Alsol to be ineligible for cancellation of removal, and ordered Alsol removed to Jamaica. The BIA based its decision on Lopez and our decision in United States v. Simpson, 319 F.3d 81 (2d Cir.2002). On May 15, 2007, Alsol, proceeding pro se and still in detention, filed a petition for review with this Court. At the same time, Alsol filed a motion to reopen and reconsider with the BIA, also pro se, arguing that her first conviction was not final at the time of her second conviction and that the IJ’s decision should be affirmed. On December 13, 2007, the BIA decided In re Carachuri-Rosendo, 24 I. & N. Dec. 382 (B.I.A.2007) (en banc), appeal docketed, Carachuri-Rosendo v. Mukasey, No. 07-61006 (5th Cir. Dec. 24, 2007), and In re Thomas, 24 I. & N. Dec. 416 (B.I.A.2007). The BIA held that, absent countervailing circuit precedent, a second drug possession conviction was not an aggravated felony unless the petitioner’s “status as a recidivist drug offender was either admitted ... or determined by a judge or jury in connection with a prosecution for [the second] offense.” Carachuri-Rosendo, 24 I. & N. Dec. at 394; accord Thomas, 24 I. & N. Dec. at 421. Thus, a second drug possession offense could not be equated to a federal felony under the CSA unless it “corresponds in a meaningful way to the essential requirements that must be met before a felony sentence can be imposed under Federal law on the basis of recidivism.” Carachuri-Rosendo, 24 I. & N. Dec. at 390. On March 25, 2008, the BIA denied Al-sol’s motion to reopen and reconsider, finding principally that despite its decision in Caraehuri-Rosendo, 24 I. & N. Dec. 382, our decision in Simpson, 319 F.3d 81, represented countervailing circuit precedent barring application of the Carachuri-Ro sendo rule. On April 23, 2008, Alsol, through counsel, petitioned for review of the denial of her motion to reopen and reconsider; we consolidated Alsol’s two petitions for review. II. Donald Overton Powell On July 3, 1997, Powell pled guilty to seventh degree criminal possession of a controlled substance in violation of New York Penal Law § 220.03, a misdemeanor. He was sentenced to six months’ imprisonment. On January 8, 2001, Powell again pled guilty to seventh degree criminal possession of a controlled substance in violation of § 220.03. He was given a conditional discharge and sentenced to two days’ community service. On October 29, 2004, IJ Brennan granted Powell cancellation of removal after finding that Simpson was not binding, Powell was not charged by the New York State courts as a recidivist, and that Powell’s conviction was not “analogous to a Federal felony, because his status as a recidivist was not actually litigated in the state prosecution for simple possession.” DHS appealed. On October 20, 2006, the BIA sustained DHS’s appeal and ordered Powell removed. Powell petitioned for review, but the parties stipulated to withdraw the petition and remand the ease to the BIA for reconsideration in light of Lopez. After it decided Carachuri-Rosendo and Thomas, the BIA again sustained the DHS’s appeal in Powell pursuant to Lopez and Simpson. On March 7, 2008, Powell filed a timely petition for review with this Court. DISCUSSION The dispositive question on appeal is whether Alsol’s and Powell’s second simple possession convictions constitute aggravated felonies under the Immigration and Nationality Act (“INA”). We hold that a second conviction for simple drug possession under state law is not a felony under the Controlled Substances Act simply because it could have been prosecuted as a recidivist offense under 21 U.S.C. § 844(a). We also clarify that our decision in United States v. Simpson, 319 F.3d 81 (2d Cir.2002), did not resolve the question in this appeal and that we are not constrained by its observations on the matter. We need not reach the other issues raised on appeal. I. Jurisdiction and Standard of Review We lack jurisdiction to review any final order of removal against an alien who is deemed deportable by way of conviction for an aggravated felony, except for constitutional claims and questions of law. 8 U.S.C. §§ 1252(a)(2)(C); 1252(a)(2)(D). Thus, we retain jurisdiction to decide the question of law regarding whether this jurisdictional bar applies, i.e., whether petitioners’ convictions were in fact aggravated felonies. See, e.g., Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137, 142 (2d Cir.2008). In general, we defer to the BIA’s interpretation of the immigration laws, but when the BIA interprets state or federal laws, as in this case, we review its interpretation de novo. See id. at 143. II. Statutory Framework An alien is ineligible for cancellation of removal if she has been “convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). The INA provides, in relevant part, that “[t]he term ‘aggravated felony’ means ... illicit trafficking in a controlled substance ..., including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). A “drug trafficking crime,” then, is defined in relevant part as “any felony punishable under the Controlled Substances Act (21 U.S.C. [§] 801 et seq.).” 18 U.S.C. § 924(c)(2). Under the CSA, a “felony” is an offense for which “the maximum term of imprisonment authorized” exceeds one year. 18 U.S.C. § 3559(a). In Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), the Supreme Court held that a state drug offense is analogous to a “felony punishable under the [CSA]” as required by § 924(c)(2), “only if it proscribes conduct punishable as a felony under that federal law.” 127 S.Ct. at 633. The CSA, absent certain exceptions not relevant here, makes it “unlawful for any person knowingly or intentionally to possess a controlled substance.” 21 U.S.C. § 844(a). The maximum term of imprisonment authorized for this offense is “not more than 1 year.” Id. Therefore, a conviction for simple possession of a controlled substance under state law would be punishable as a federal misdemeanor and could not be a “drug trafficking crime” under the CSA nor, in turn, an “aggravated felony” under the INA. However, if a person commits a possession offense “after ... a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, he shall be sentenced to a term of imprisonment for ... not more than 2 years.” 21 U.S.C. § 844(a) (emphases added). Under this recidivist provision, simple drug possession can be charged as a federal felony if it was committed after a prior, final, drug conviction. Importantly, the increased sentence is not automatically available: No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. 21 U.S.C. § 851(a)(1) (emphasis added). If the government files the required information, the court, prior to sentencing, must inquire whether the defendant “affirms or denies that he has been previously convicted as alleged in the information.” Id. § 851(b). If a defendant does not admit his prior conviction, the government must prove the existence of the prior conviction beyond a reasonable doubt, id. § 851(c)(1), and a defendant has a limited right to collaterally attack the validity of his prior conviction, id. § 851(c)(2). The issue before us is whether a second simple state controlled substance possession misdemeanor conviction constitutes a felony punishable under the CSA because it could have been prosecuted as a recidivist offense under 21 U.S.C. § 844(a). III. Lopez v. Gonzales, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) In Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), the Supreme Court resolved a circuit split regarding whether a state controlled substances conviction that is classified as a felony by the state but only as a misdemeanor under the CSA was an “aggravated felony” pursuant to 8 U.S.C. § 1101(a)(43)(B). Several circuit courts had held that a state conviction constitutes an aggravated felony if it is (1) punishable under the CSA and (2) is a “felony under either state or federal law.” See, e.g., Lopez v. Gonzales, 417 F.3d 934, 937 (8th Cir.2005), rev’d, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). The Court rejected this rationale, holding that whether the state classifies the offense as a felony is irrelevant. Instead, “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez, 127 S.Ct. at 633 (emphasis added). This has become known as the “hypothetical federal felony approach.” In rejecting the approach that would allow a simple possession offense to qualify as a “drug trafficking crime” simply because the state chose to classify it as a felony, the Supreme Court noted “its incoherence with any commonsense conception of ‘illicit trafficking,’ the term ultimately being defined.” Id. at 629-30. The Court reasoned that, because the statute did not define the term, the everyday understanding of trafficking should hold, and the ordinary understanding of trafficking did not connote simple possession. Id. at 630. IV. In re Carachuri-Rosendo, 24 I. & N. Dec. 382 (B.I.A.2007) (en banc) In December 2007, after Lopez, the BIA held that a second drug possession conviction is not an aggravated felony conviction “unless the alien’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for [the second] offense.” In re Carachuri-Rosendo, 24 I. & N. Dec. 382, 394 (B.I.A.2007) (en banc), appeal docketed, Carachuri-Rosendo v. Mukasey, No. 07-61006 (5th Cir. Dec. 24, 2007); accord In re Thomas, 24 I. & N. Dec. 416, 421 (B.I.A.2007). The BIA held that a second drug possession offense is not punishable as a federal felony, as required by Lopez, unless it “corresponds in a meaningful way to the essential requirements that must be met before a felony sentence can be imposed under Federal law on the basis of recidivism.” Carachuri-Rosendo, 24 I. & N. Dec. at 390. In light of 21 U.S.C. § 851, the BIA held that meaningful correspondence requires that “the State successfully sought to impose punishment for a recidivist drug conviction.” Id. at 391. The BIA acknowledged that its interpretation of criminal statutes (as opposed to the INA) is “not entitled to deference” by the courts. Carachuri-Rosendo, 24 I. & N. Dec. at 385; see also Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137,143 (2d Cir.2008). Therefore, the BIA held that it would apply the Carachuri-Rosendo rule only absent controlling countervailing circuit precedent. See Carachuri-Rosendo, 24 I. & N. Dec. at 391; accord Thomas, 24 I. & N. Dec. at 421. In Carachuri-Rosendo, the BIA found that under controlling Fifth Circuit precedent a second possession offense is considered a felony under federal law if it “ ‘could have been punished under § 844(a).’ ” Carachuri-Rosendo, 24 I. & N. Dec. at 386 (quoting United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir.2005), cert. denied, 546 U.S. 1137, 126 S.Ct. 1142, 163 L.Ed.2d 1000 (2006)). While noting that “Lopez points strongly toward a different construction of the statute,” and that Lopez “may require a reexamination of prior circuit law,” the BIA concluded that “it [was] not for this Board to declare that Fifth Circuit precedent has been implicitly overruled by the Supreme Court.” Id. at 387-88. The BIA then applied the Carachuri-Rosendo rule in a separate case, holding that petitioner’s second possession offense did not correspond to “the Federal felony of ‘recidivist possession.’ ” Thomas, 24 I. & N. Dec. at 421. [Bjecause [Thomas’s] marijuana possession conviction did not result from a State proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury, ... [it did] not qualify as a conviction for a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) or an “aggravated felon/’ under section 101(a)(43)(B) of the [INA], absent controlling [circuit] precedent to the contrary.” Id. at 421-22. V. Circuit Split As the BIA recognized, see In re Garachuri-Rosendo, 24 I. & N. Dec. 382, 385-86 (B.I.A.2007) (en banc), appeal docketed, Carachuri-Rosendo v. Mukasey, No. 07-61006 (5th Cir. Dec. 24, 2007), our sister circuits have split on whether a second simple possession conviction is an offense punishable as a recidivist offense under 21 U.S.C. § 844(a), thus making it an aggravated felony for immigration purposes. The First, Third, and Sixth Circuits agree that such a conviction does not automatically qualify as the federal felony of recidivist possession. See Berhe v. Gonzales, 464 F.3d 74, 85-86 (1st Cir.2006); Steele v. Blackman, 236 F.3d 130, 137-38 (3d Cir.2001); Rashid v. Mukasey, 531 F.3d 438, 442-48 (6th Cir.2008). In Rashid, the most recent of these, the Sixth Circuit explained that “[t]he ultimate problem” with the government’s argument that two state misdemeanor convictions for marijuana possession morph into an “aggravated felony” is that the approach adds a “hypothetical to a hypothetical.” 531 F.3d at 445 (internal quotation marks omitted). The Sixth Circuit held that: The first and only hypothetical that should be considered under the “hypothetical federal felony approach” is whether the crime that an individual was actually convicted of would be a felony under federal law. But by looking to facts not at issue in the crime of conviction in order to determine whether an individual could have been charged with a federal felony, our sister circuits, the IJ, and the BIA have considered an impermissible second hypothetical! We conclude that inclusion of the word “hypothetical” in the “hypothetical federal felony” approach does not provide the government with free reign to make ex-post determinations of what federal crimes an individual could hypothetically have been charged with where, as here, a prior drug-possession conviction was not at issue in the prosecution of the subsequent drug-possession offense. Id. at 445 (citation omitted). See also Fernandez v. Mukasey, 544 F.3d 862, 875 (7th Cir.2008) (Rovner, J., dissenting) (noting that use of the term “hypothetical” in the “hypothetical federal felony approach” does not “allow an immigration court to determine that conduct for which a defendant was never charged and never convicted would have been a felony if the government had, hypothetically, prosecuted the defendant under federal law.”). On the other hand, the Fifth and Seventh Circuits have held in the sentencing context, where a conviction for an “aggravated felony,” which is defined the same way as it is under the INA, see U.S.S.G. § 2L1.2 cmt. n. 3(A), may result in an eight-level enhancement, see U.S.S.G. § 2L1.2(b)(l)(C), that a second simple possession offense can be considered a federal felony because it could have been prosecuted as a recidivist offense under 21 U.S.C. § 844(a). See United States v. Cepeda-Rios, 530 F.3d 333, 334-36 (5th Cir.2008) (per curiam) (following United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir.2005)); United States v. Pacheco-Diaz, 506 F.3d 545, 548-50 (7th Cir.2007), reh’g denied, 513 F.3d 776, 778-79 (7th Cir.2008) (per curiam). Recently, over a dissent, the Seventh Circuit found Pacheco-Diaz’s reasoning to be controlling in the immigration context and reaffirmed its disagreement with the BIA’s interpretation in Carachuri-Rosendo. Fernandez, 544 F.3d at 866-70. The court held that “[t]he question is whether the petitioners would have been subject to the increased penalty for having committed a prior drug offense had they been charged in federal court.” Id. at 871. Finding that recidivist charges could have been brought, the court found that petitioner had committed an aggravated felony. Id. VI. Analysis A. “Aggravated Felony” We now join the First, Third, and Sixth Circuits in holding that a second simple drug possession conviction is not an “aggravated felony” as that term is defined in 8 U.S.C. § 1101(a)(43)(B). As noted, under Lopez, “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” 549 U.S. 47, 127 S.Ct. 625, 633, 166 L.Ed.2d 462 (2006). Lopez, however, does not stand for the proposition that a state offense is a felony punishable under the CSA if it could have been charged as a recidivist state offense that would then be punishable as a federal felony; rather, Lopez stands for the proposition that a state offense of conviction that is punishable as a federal felony is an aggravated felony. As we recently emphasized, “the INA premises removability not on what an alien has done, or may have done, or is likely to do in the future (tempting as it may be to consider those factors), but on what he or she has been formally convicted of in a court of law.” Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137, 145 (2d Cir.2008); see also Rashid v. Mukasey, 531 F.3d 438, 445 (6th Cir.2008); Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 125 (2d Cir.2007) (The INA renders “removable an alien who has been convicted of an aggravated felony, not one who has committed an aggravated felony.”) (emphases added and internal quotation marks omitted). The requirement that an alien be convicted of a removable offense before suffering the consequences under immigration law is precisely what Lopez requires. Under Lopez, an offense that could have been prosecuted — not necessarily resulting in conviction- — -as a recidivist offense is not an offense punishable as a federal felony. The INA and Lopez require an actual conviction for an offense that proscribes conduct that is punishable as a federal felony, not a conviction that could have been obtained if it had been prosecuted. See 8 U.S.C. § 1227(a)(2)(A)(iii) (rendering deportable an alien who has been “convicted of an aggravated felony”); 8 U.S.C. § 1229b(a)(3) (stating that the Attorney General may cancel removal if, inter alia, the alien “has not been convicted of any aggravated felony”). In Lopez, the Supreme Court noted that some state penal codes “graduate drug possession offenses from misdemeanor to felony depending on quantity,” while federal law did not, treating “possession alone as a misdemeanor whatever the amount.” Lopez, 127 S.Ct. at 633. However, possession with intent to distribute could be a federal felony when the amount is large. Id. Thus, an alien who was convicted of a state felony for possession of large quantities of drugs might “escape the aggravated felony designation simply for want of a federal felony defined as possessing a substantial amount.” Id. The Supreme Court recognized that unless the underlying state conviction included reference to the alien’s intent to distribute, a state-law felony for possession of a large amount of drugs could not qualify him as an aggravated felon, even if that charge could have been prosecuted as the federal felony of “possession with intent to distribute.” Our “categorical approach” supports the holding that an actual conviction is needed. Under the categorical approach, when determining whether an alien is removable, we “look to the elements and the nature of the [state] offense of conviction, rather than to the particular facts relating to [the] petitioner’s crime.” Dulal-Whiteway, 501 F.3d at 121 (citation and internal quotation marks omitted). An alien is not removable unless the minimum criminal conduct necessary to sustain a conviction under the state statute in question amounts to a removable offense. See id.; see also Gertsenshteyn, 544 F.3d at 143. The categorical approach was adopted to ensure that the government is held to its burden to prove “the existence of a qualifying conviction. ” Id. at 146. The “whole basis” for the categorical approach “is that what the alien was convicted of determines whether the felony is an aggravated one and not (unless it is needed to convict) the particular manner in which the crime was committed.” Id. This case does not involve a simple application of the categorical approach, however, because, as the BIA recognized, while most offenses are defined by their elements, recidivist possession is “an amalgam of elements, substantive sentencing factors, and procedural safeguards.” Carachuri-Rosendo, 24 I. & N. Dec. at 389. Thus, the Seventh Circuit found that because the recidivist enhancement available here is not an element of the crime, a broad inquiry into the petitioner’s underlying conduct is permitted. See Fernandez v. Mukasey, 544 F.3d at 867, 873 (7th Cir.2008). However, nothing in the applicable statutes or Lopez allows the BIA to abandon the requirement that petitioner’s status as an aggravated felon be based on an actual conviction simply because the categorical approach may not easily fit this situation. This is why we part ways with the Seventh Circuit. The Seventh Circuit’s decision, we believe, focuses improperly on “the conduct reflected in the state convictions, as opposed to the precise state crime charged.” Id. at 867 (emphasis added and citation omitted). The BIA concluded that, in order for a state misdemeanor offense to be treated as a recidivist offense and thus a federal felony under the CSA, the alien’s “status as a recidivist drug possessor must have been admitted or determined by a court or jury within the prosecution for the second drug crime.” Carachuri-Rosendo, 24 I. & N. Dec. at 391 (emphasis added). We believe that the BIA’s holding in Carachuri-Rosendo best serves the requirement that petitioner’s status as an aggravated felon be based on an actual conviction. Under this approach, the focus is properly on the state conviction, not the circumstances of the underlying conduct. Though distinct, this is not inconsistent with our categorical approach, as they both serve the same end. The proper focus is on the conduct proscribed in the underlying conviction, not the general conduct reflected in the conviction. Requiring that petitioner be actually convicted of an offense that is analogous to “recidivist possession” does not rely on the state’s classification of the offense as a felony or misdemeanor. We simply hold that, in these particular and unique circumstances, whatever petitioner was convicted of under state law must correspond with the crime of recidivist possession under the CSA. As Judge Rovner explained, “petitioners ... would have been subject to the increased penalty only if they had been charged as repeat offenders under 21 U.S.C. § 851. And that is a big ‘if.’ After all, they were not charged as repeat offenders in state court.” Fernandez, 544 F.3d at 877 (Rovner, J., dissenting). We note that the BIA’s reasoning in Carachuri-Rosendo avoids several anomalies. Under the logic of the government’s “would have” test, a federal misdemeanor would be considered a federal felony on the ground that the defendant could have been prosecuted as a recidivist. Similarly, a state possession conviction would be considered a federal recidivist felony even when the State explicitly elected not to pursue a recidivist conviction. Such outcomes would intrude on prosecutorial discretion to make charging decisions, specifically undermining the State’s ability to negotiate plea agreements with defendants who would admit guilt to drug possession with the understanding that their criminal records would reflect misdemeanor and not felony convictions.

2031679-14019

FAIRCHILD, Circuit Judge. Macomb Pottery Company seeks review of the National Labor Relations Board finding that the company refused to recognize and bargain collectively with International Brotherhood of Operative Potters, AFL-CIO, and ordering the company to do so. In an election February 11, 1965, the company’s production and maintenance employees voted 73 to 57 (with one additional ballot being void and four challenged) for representation by this union. The board certified the union July 21, 1965, but the company has refused to recognize and bargain with it. These facts are undisputed. The only issue raised by the company’s answer to the unfair labor practice complaint was, in essence, that the board should have declared the election invalid and should not have certified the union. After the election, the company had filed timely objections, stating that conditions created by the union “made impossible a sober, informed exercise by the employees of their right to vote in said election without coercion and restraint.” The regional director conduct ed an investigation, and made a report, recommending that the objections be overruled. The company filed exceptions, attacking the reasoning and conclusions of the regional director, but not asserting the existence of any particular evidence to refute the conclusions drawn. The board adopted the regional director’s recommendations and certified the union. On September 28, 1965, the board issued a complaint, alleging refusal to bargain. The company answered, challenging the election and certification. The general counsel moved for “summary judgment on the pleadings.” The trial examiner ordered the company to show cause why the motion should not be granted, and to set forth a summary of any evidence, newly discovered or not available during the representation proceeding, which the company would proffer to attack the certification. The order stated that its purpose was to enable the examiner to determine whether there was any factual issue necessitating the taking of evidence. The company produced no summary of evidence, but replied that it had a statutory right to a hearing and that a motion for summary judgment cannot be granted in an unfair labor practice proceeding. The examiner concluded there were no matters requiring a hearing, granted the motion for judgment on the pleadings, and recommended an order which the board adopted, and is now under review. The position of the board is that the company’s objections to the election have been adequately litigated and determined, albeit without a hearing, in the representation case. The examiner in the unfair labor practice proceeding afforded an opportunity for the company to produce newly-discovered or previously unavailable evidence, if material. The company apparently was unable to produce such evidence; at least it declined to furnish the invited summary. Thereupon the examiner granted the general counsel’s motion. The validity of this procedure has been decided or assumed in at least two cases. Although 29 U.S.C.A. § 160, the statute governing the unfair labor practice proceeding, does require “a notice of hearing” and provides to the person complained of the right “to appear in person or otherwise and give testimony,” it cannot logically mean that an evidentiary hearing must be held in a case where there is no issue of fact. 29 U.S.C.A. § 159 governs the representation proceeding and subs, (d) thereof provides that where there is a petition for enforcement or review of an order in an unfair labor practice proceeding, based upon facts certified after a representation proceeding, the record in the representation proceeding shall be included in the record filed in court. Thus review of the propriety of the certification is accomplished by a review of the record in the representation proceeding, the certification having, as here, been relied on as á verity in the unfair labor practice proceeding. 29 U.S.C.A. § 159 does not require a hearing in the representation proceeding upon objections filed after an election. The board’s rules require a hearing on such objections only “if it appears to the regional director that substantial and material factual issues exist which can be resolved only after a hearing.” The general standard for judicial review of a certification is whether the board abused its discretion. And where the challenge is based, as here, upon the fact that the objections were disposed of without hearing, the ques tion is whether the objecting party’s exceptions to the report or findings of the regional director show that there were substantial and material issues of fact which could be resolved only after a hearing. As stated by the ninth circuit: ■ “ ‘These exceptions do not directly meet or mention any of the facts found by the Regional Director and raise no factual issues whatsoever. They do not suggest what new facts a hearing would develop or what if any evidence would be produced. They simply question the ultimate interpretation placed by the Director upon certain conduct. A hearing apparently would not deal with matters of factual proof but would serve only to permit argument which could as well have been presented in the writing itself. “ ‘Under these circumstances it was not abuse of discretion for the Board to proceed without hearing.’ ” The exceptions filed by the company do not indicate any disagreement with the regional director’s report of the events which underlay the company’s objections. These events were: a misstatement of fact by the union, threatening conversations described by two employees, and a statement by the union that initiation fees would be waived. The regional director concluded that the misstatement did not have a real impact on the election, that the threatening conversations were not attributable to the union, and were isolated incidents, and that the waiver of the initiation fee was not a benefit conditioned upon the employees’ vote. In the exceptions the company argued with the regional director’s reasoning and his legal conclusions. It did not suggest that it could produce evidence to establish that the misstatement had an impact upon the free choice of the employees, nor that the threatening conversations produced an atmosphere of fear and reprisal. Under the circumstances the board’s failure to hold a hearing does not destroy the certification. The question then is whether the board abused its discretion in declining to invalidate the election on the basis of the regional director’s report. 1. The misstatement. On February 3 or 4, the company issued a bulletin to all employees, urging a “No” vote. “Fact No. 3” was: “In addition to each dollar paid you in wages, the company pays an additional $.21% in fringe benefits, which include: your retirement payroll, life insurance, hospital and surgical insurance, paid vacations, and paid holidays. Remember — this union is out after your dues money — this is all they are interested in! Don’t be mislead by the phony promises which they have no power to deliver.” On February 9 the union’s internation-' al representative distributed a leaflet, urging a “Yes” vote. “Fact No. 3” was: “Twenty-one and one-half cents ($.21%) per hour is very low for fringe benefits.” The regional director acknowledged that 21 %0 per dollar is substantially greater than 21%^ per hour, and that the union leaflet was circulated so late that the company could not effectively point out the error. But the regional director took into consideration all the circumstances, including the fact that the statement concerned benefits the employees were receiving, that they had access to more reliable information about the figure, and that “the gravamen of [the union’s] statement was not to charge that the 21% 0 per dollar was not true, but that 21% 0 per hour is ‘very low.’ ” The conclusion of lack of impact may be debatable, but cannot be said to be so unreasonable as to be an abuse of discretion. 2. The threatening telephone conversations. A female employee said she received three phone calls at her home in the evening from a man who refused to identify himself. The man indicated she would be well advised to support the union side, and that if she didn’t she would be looking for another job before too long. The recipient of the calls did not tell any other employees of them. As pointed out by the regional director, there is no evidence that these calls were attributable to the union. 134 employees cast ballots. We do not deem it an abuse of discretion to consider that this series of conversations, plus the threatening conversation next considered, were insufficient, if they occurred, to create an atmosphere of fear and reprisal. 3. The conversation about dynamiting. Another female employee told of a conversation with a male employee who was active in soliciting authorization cards, was, with others, in frequent contact with the union representative, but was not a member of a formal union committee. According to the lady, the man approached her a few weeks before the election and said: “You know we’re going to vote for the Union in a few days. If you don’t vote for it the same thing could happen to you like those NFO dynamiting. You know what they did to them.” She replied: “You couldn’t have said a worse thing to me. If you had really wanted me to vote for the Union, you wouldn’t have talked to me like that. Just shut up and get over to the run you’re working on or I’ll call- — the foreman.” The regional director deemed it unnecessary to determine, by hearing, whether this conversation occurred because there was no basis for an inference that the union either authorized the conduct or ratified it. The company argues upon general principles of agency that since the man was soliciting on behalf of the union, with its knowledge, the union is responsible for what the man said in connection with such solicitation. It does not appear that anyone connected with the union knew of this type of threat, nor is any course of conduct or circumstances shown from which knowledge or approval could be inferred. There is nothing to show that the conversation was overheard by other employees, nor repeated to other employees by the lady involved. In the light of the circumstances, the conclusion that the employees’ freedom of choice had not been impaired by these incidents is not an abuse of discretion. 4. Waiver of initiation fees. “Fact No. 2” of the company’s bulletin was as fallows: “Your company has paid your wages and fringe benefits without any union, without any strikes, and without paying to the union one per cent of your pay to the International Union, plus monthly Local Union dues, and your initiation fee.” “Fact No. 2” of the union’s response was as follows: “The union dues are one per cent (1%) of your wages. The initiation fee is waved because all employees working at Haeger Pottery when the contract is signed will be charter members. No initiation fee for charter members. “If you received ten cents ($ .10) per hour increase with a Union you would get ($4.00) per week increase based on forty hours per week. If you made one hundred dollars ($100.00) a week your Union dues would be one dollar ($1.00) per week. “$4.00- — -increase —1.00-—-Union dues $3.00 — Gain per week” The regional director found no evidence of any statement that the promised waiver was limited to those who signed authorization cards or voted for the union. Since the waiver would be available to each employee no matter how he voted, the regional director concluded that there was no offer of a quid pro quo for a vote. The company points out that the waiver was conditioned so as to apply “when the contract is signed” and thus conditioned upon the union’s winning the election. But we agree with the board that the important consideration is that the promise was not conditioned on the vote or support of the individual employee. If the union won and a “contract is signed,” the employee who voted against the union would have the same benefit (i. e., waiver of fee) as the employee who voted for the union. Any persuasive effect the promise of waiver may have on an individual employee in these circumstances is no different in kind from a statement of the amount of the dues or other representations of the advantages and burdens of membership. The board has held that waiver of initiation fees by a union during a pre-election campaign interferes with the conduct of the election when the waiver is promised as the quid pro quo for the employees’ votes. But the nondiscriminatory waiving of fees during the organizational period, “does not smack of coercion but rather of promotional persuasion.” In finding no impropriety in an exemption of all who join before a contract is signed, the second circuit said: “* * * This statement gave adequate notice to all employees, whether they approved or disapproved of the union, that they had nothing to lose by waiting for the union to achieve recognition before applying for membership.” The first circuit has said: “We are compelled to conclude that the waiver of initiation fees predicated upon joining before the election is a substantial organizational inducement. On the other hand, we fully agree with the Board that a pre-election promise permitting all present employees, whether they vote for the union or not, to join without payment of an initiation fee up to and within a reasonable time immediately after the election would not be an inducement. Gilmore Indus., Inc., 1962, 140 N.L.R.B. 100.” The regional director and the board correctly concluded that the promise of waiver of initiation fees did not invalidate the election. None of the first three points raised by the company, taken individually, compels the conclusion that the board abused its discretion. Neither do we find such abuse, considering them collectively. The petition to set aside the board’s order is denied and the board’s petition for enforcement granted.

1961830-20991

PER CURIAM. Defendant-appellant Steven Smith (hereinafter “Smith”) appeals his conviction and sentence following a guilty plea to forcible assault on a federal officer, possession of a firearm during a crime of violence, and possession of a firearm by a convicted felon. Smith raises three issues on appeal: (1) whether the district court erred by exceeding the scope of remand issued by this Court in United States v. Smith, 196 F.3d 676 (6th Cir.1999) (“Smith I”); (2) whether the district court erred by increasing from 2 levels to 4 levels the upward departure permitted by United States Sentencing Guidelines (“USSG”) § 5K2.6; and (3) whether the district court engaged in vindictive sentencing after the remand. For the reasons set forth below, we AFFIRM the district court’s judgment. I. FACTUAL AND PROCEDURAL HISTORY In Smith I, we discussed in detail the facts which led to Smith’s June 30, 1998 sentence stemming from the intentional shooting of a federal officer who was searching his hotel room. Smith I, 196 F.3d at 678-80. We find this earlier discussion to be adequate and we will not recount the facts as stated in that opinion. Instead, we will address only the procedural history that gives rise to the current appeal. At issue in Smith I was whether the district court impermissibly “double counted” when it sentenced Smith to 248 months in prison. Id. at 679. We agreed with Smith and held that the district court had indeed double counted. We found that the district court had punished Smith two times — once by increasing his base offense level by 4 pursuant to USSG § 2K2.1(b)(5) and again by sentencing him for 60 months for violating 18 U.S.C. § 924(c) — for the use or possession of a firearm in connection with a felony or crime of violence. Because of this Circuit’s consistent policy against duplicating punishments for the same behavior when not required to do so, we held that the district court erred by punishing Smith both under § 2K2.1(b)(5) and § 924(c). Smith I, 196 F.3d at 681 (citing United States v. Romano, 970 F.2d 164, 167 (6th Cir.1992)). Furthermore, because the 60-month sentence pursuant to § 924(c) was mandatory, we held that § 2K2.1(b)(5)’s 4-level increase be struck down and that the 60-month sentence remain. We concluded that: “... we VACATE Smith’s sentence and remand to the district court with instructions to resentence Smith without applying the specific offense characteristic listed in USSG § 2K2.1(b)(5). We AFFIRM the sentence in all other respects.” Smith I, 196 F.3d at 687. On remand, the district court resen-tenced Smith to 228 months in prison. (Joint Appendix (“J.A.”) at 38.) To arrive at this sentence, the district court struck down § 2K2.1(b)(5)’s 4-level increase, as instructed in Smith I. However, instead of merely subtracting the 4 levels from its original sentence level of 31, the district court reevaluated Smith’s sentence in its entirety. (J.A. at 86.) The district court on remand resentenced Smith under § 2A2.1 “Assault with Intent to Commit Murder” rather than § 2K2.1 “Firearms,” the section under which the district court had sentenced him originally and under which we had issued our remand order in Smith I. (J.A. at 81.) Smith’s base offense level under § 2A2.1(a)(2) was 22. The court increased this base level to 24 by applying a specific offense characteristic listed in § 2A2.1(b)(l)(B): “if the victim sustained serious bodily injury, increase by 2 levels.” USSG § 2A2.1(b)(l)(B) (1997). The district court then departed upward from the offense level of 24 by 4 levels on the basis of Smith’s discharge of a firearm (§ 5K2.6), and again by 2 levels for his criminal purpose (§ 5K2.9), to arrive at a final level of 30. (J.A. at 79.) Smith correctly notes on this appeal that the district court’s 4-level upward departure pursuant to § 5K2.6 on resentence was greater than the court’s 2-level departure in its original sentence. The guideline range for the offense level of 30 was 135 to 168 months. (J.A. at 81.) The district court imposed 168 months, then added the mandatory § 924(c) 60-month sentence to arrive at the final 228-month sentence. Smith now appeals the district court’s 228-month sentence. We address each of his three arguments. II. ANALYSIS A. Smith I’s Scope of Remand Smith argues that the district court in this case violated the mandate rule by exceeding the scope of our remand in Smith I when it reevaluated his sentence in its entirety and resentenced him under the § 2A2.1 “Assault with Intent to Commit Murder” provision rather than the § 2K2.1 “Firearms” provision, under which Smith was originally sentenced. United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994) (holding that under the mandate rule, district courts are required to adhere to the commands of an appellate court on remand). Smith also asserts that the district court exceeded the scope of our remand by increasing the upward departure for § 5K2.6 from 2 levels to 4 levels. In support of these two claims of district court error, Smith contends that the Smith I remand was limited to the issue of striking down the district court’s application of § 2K2.1(b)(5). He argues that the effect of the limited remand was to restrict the district court’s consideration of any issue other than whether it should strike down § 2K2.1(b)(5). Therefore, Smith argues that by reevaluating (1) his sentence under § 2A2.1 rather than staying within § 2K2.1; and (2) the upward departure of § 5K2.6, the district court overstepped the boundaries of authority granted by the Smith I remand. The government argues that our order in Smith I was a general remand accompanied by a specific instruction not to apply the offense characteristic listed in § 2K2.1(b)(5). Under this interpretation, the district court would be entitled to reevaluate the calculus of Smith’s sentence in its entirety as long as it subtracted § 2K2.1(b)(5)’s 4-level enhancement. Because the district court did indeed disregard § 2K2.1(b)(5) for Smith’s resentence, the government asserts that the district court acted within the permissible bounds of its authority when it reevaluated Smith’s sentence under § 2A2.1 and when it reevaluated the upward departure of § 5K2.6. Hence, the government contends that the district court did not violate the mandate rule. The government therefore requests that we affirm the district court’s decision to resentence Smith to 228 months. The issue that we face is whether the order in Smith I was a limited remand or a general remand accompanied by a specific instruction not to apply § 2K2.1(b)(5). The order at issue is: “... we VACATE Smith’s sentence and remand to the district court with instructions to resentence Smith without applying the specific offense characteristic listed in USSG § 2K2.1 (b)(5). We AFFIRM the sentence in all other respects.” Smith I, 196 F.3d at 687. The interpretation of an appellate mandate is a legal issue which we review de novo. United States v. Moore, 131 F.3d 595, 598 (6th Cir.1997) (“Moore III”). In comparing general remands with limited remands, we have held that a “general remand allows the district court to resentence the defendant de novo, which means that the district court may redo the entire sentencing process including considering new evidence and issues ... [whereas] a limited remand constrains the district court’s resentencing authority to the issue or issues remanded.” Id. at 597-98. We have also held that: [T]o impose a limited remand, an appellate court must sufficiently outline the procedure the district court is to follow. The chain of intended events should be articulated with particularity. With sentencing issues ... [appellate] court[s] should leave no doubt in the district judge’s or parties’ minds as to the scope of the remand. The language used to limit the remand should be, in effect, unmistakeable. United States v. Campbell, 168 F.3d 263, 268 (6th Cir.1999) (emphasis added). If the appellate court fails to articulate sufficiently the procedure that the district court is to follow, “the remand order is presumptively a general one.” Moore III, 131 F.3d at 598. The policy underlying the presumption of de novo resentencing “is to give the district judge discretion to consider and balance all of the competing elements of the sentencing calculus.” Campbell, 168 F.3d at 266. Applying these considerations to the facts of the instant case, we adopt the government’s view that Smith I was a general remand accompanied by a specific instruction not to apply § 2K2.1(b)(5). The district court followed our order and did not consider § 2K2.1(b)(5) in arriving at Smith’s resentence. However, disregarding § 2K2.1(b)(5) was not simply a matter of subtracting 4 levels from the original sentence’s final offense level. Instead, removing that provision altered the entire calculus of Smith’s prison term on resentence. By subtracting § 2K2.1(b)(5)’s 4-level enhancement from the original sentence, the district court concluded that applying § 2K2.1 would yield a lower total offense level than § 2A2.1. Because § 3D1.3(a) instructs the sentencing court to apply the guideline that results in the highest offense level, the district court properly resentenced Smith under § 2A2.1 rather than under § 2K2.1. Our order in Smith I did not preclude the district court from evaluating and resentencing Smith under § 2A2.1; rather, it merely instructed the district court to “resentence Smith without applying the specific offense characteristic listed in USSG § 2K2.1(b)(5).” Smith, 196 F.3d at 687. This language did not “articulate with particularity” the requirement that the district court restrict its analysis on remand to § 2K2.1. Campbell, 163 F.3d at 268. We conclude that the Smith I order reflected an intent to grant the district court discretion in evaluating how the § 2K2.1(b)(5) omission would affect Smith’s overall sentence. Hence, we hold that Smith I was a general remand accompanied by a specific instruction to disregard § 2K2.1(b)(5). Under the same line of reasoning, we hold that the district court did not err in reevaluating the upward departure for § 5K2.6. Our order in Smith I did not “articulate with particularity” the requirement that the district court was bound to accept the original sentence’s 2-level upward departure for § 5K2.6. Campbell, 163 F.3d at 268. Because we did not specifically instruct the district court to accept the original 2-level upward departure, we conclude that the district court had discretion to engage in de novo application of § 5K2.6. Moore III, 131 F.3d at 597. Our holding today is consistent with this Court’s view that appellate courts should be reluctant to declare a remand as limited when in the context of Sentencing Guidelines cases. We have recognized that: Calculation of a sentence under the Sentencing Guidelines requires a balancing of many related variables ... [which] do not always become fixed independently of one another. Therefore, the delicate balancing that occurs in the sentencing process in light of the complexity of the Sentencing Guidelines leads [us] to believe that limited remands are less likely to be desirable or effective when multiple issues require consideration. Campbell, 168 F.3d at 268 (emphasis added). Lastly, we reject Smith’s comparison with the Smith I order and the order in United States v. Moore, 76 F.3d 111 (6th Cir.1996) (“Moore II”), which we held to be a limited remand. The Moore II order read: ... [We] VACATE Moore’s § 924(c)(1) conviction and REMAND for further proceedings, in which both parties can have the opportunity to focus on the facts and law relevant to proving that Moore used or carried a firearm during and in relation to his drug trafficking offense. We adhere to our previous opinion in all other respects. Moore II, 76 F.3d at 114 (emphasis added). In Moore III, we reviewed this order and concluded that as a limited remand, the order “specifically limited the scope of remand to a consideration of whether the evidence supported Moore’s § 924(c) conviction.” Moore III, 131 F.3d at 599. Smith argues that the language of the Smith I and Moore II orders are similar, and that since we held Moore II to be a limited remand, we should hold likewise for the Smith I order. We find the language in Smith I to be distinguishable from that in Moore II and, as such, we are not bound to conclude that Smith I was a limited remand. The Moore II order articulated with particularity that the issue to be addressed on remand was whether Moore “used or carried a firearm during and in relation to his drug trafficking offense.” Moore II, 76 F.3d at 114. In contrast with this specific instruction, the Smith I remand gave the district court authority to “resentence Smith without applying ... § 2K2.1(b)(5).” Smith I, 196 F.3d 687. We interpret the phrase “resen-tence Smith” as having given the district court de novo review of Appellant’s sentence, so long as it followed the specific instruction not to apply § 2K2.1(b)(5). This interpretation stems from our view that “where an appellate court simply vacates a sentence and remands to the district court for ‘resentencing,’ that order is considered a general one that allows the district court to resentence the defendant de novo.” Moore III, 131 F.3d at 598. Because the Moore II order did not give the district court broad authority to “re-sentence Moore,” we conclude that the language in that order and the Smith I order are materially different. Hence, we reject Appellant’s argument that Smith I was a limited remand. B. The District Court’s Decision to Increase the Upward Departure For § 5K2.6 From 2 Levels to 4 Levels In its original sentence, the district court exercised its discretion pursuant to USSG § 5K2.6 (discharge of firearms) to increase Smith’s offense level by 2. On remand, the district court increased the upward departure pursuant to § 5K2.6 from 2 levels to 4. Smith argues that this increase was improper because the district court’s decision was motivated by a desire to bring the offense level on resentence to approximately the same level as it was in the original sentence (31). Because this motive is an impermissible basis on which to depart upward from the sentencing guidelines, Smith requests that we strike down the district court’s 4-level departure. Section 5K2.6, subtitled “Weapons and Dangerous Instrumentalities,” states: If a weapon or dangerous instrumentality was used or possessed in the commission of the offense the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the dangerousness of the weapon, the manner in which it was used, and the extent to which its use endangered others. The discharge of a firearm might warrant a substantial sentence increase. USSG § 5K2.6 (1997). We review a district court’s departure from the Sentencing Guidelines for abuse of discretion. United States v. Levy, 250 F.3d 1015, 1017 (6th Cir.2001). To affirm, we must find that: (1) there was a permissible basis for the district court’s departure; and (2) the degree of departure was reasonable. United States v. Crouse, 145 F.3d 786, 789 (6th Cir.1998). We hold that the district court did not abuse its discretion when it decided to depart upwards by 4 levels pursuant to § 5K2.6 on remand. The district court’s resentence should therefore be affirmed. First, we find that there was indeed a permissible basis for the district court’s 4-level upward departure. The permissible basis prong has its origin in 18 U.S.C. § 3553(c)(2), which requires that if a sentence is “outside the range ... [of the Sentencing Guidelines, the court shall state] ... the specific reason for the imposition of a sentence different from that described.” 18 U.S.C. § 3553(c)(2) (1996). Upon reviewing the transcript of the district court’s second sentencing hearing, we conclude that the court did specify a permissible basis for departing from the Sentencing Guidelines by 4 levels pursuant to § 5K2.6. Alluding to findings from its original sentence, the district court stated that: [Appellant’s] use of that firearm was such that it was certainly through no conduct on the part of [Appellant] other than his ... not being an extremely good shot that Officer Hoing was not killed. There is nothing about this conduct that suggests an intent to impose a lesser harm. In fact, all the circumstances concerning- the use of the weapon suggest that this is a basis for an upward departure. (J.A. at 77.) The court’s decision to depart upward was not merely a product of a desire to reinstate its original sentence, as Smith suggests. Rather, the court’s decision was based on a determination of Smith’s clear intent to kill. Such an ag gravating circumstance is, according to § 5K2.0, a permissible basis upon which a district court may use its discretion to depart from the Sentencing Guidelines. See USSG § 5K2.0 (1997) (stating that “the sentencing court may impose a sentence outside the range ... if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described’”) (quoting 18 U.S.C. § 3553(b)). Second, we find that an upward departure of 4 levels was reasonable. ■ “The reasonableness determination looks to the amount and extent of the departure in light of the grounds for departing.” Crouse, 145 F.3d at 789 (quoting Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)). In determining reasonableness, the 4-level upward departure must be evaluated independently from the district court’s decision to impose a 2-level departure for § 5K2.6 in its original sentence. We held earlier that Smith I was a general remand, which thus entitled the district court to engage in de novo application of § 5K2.6. Therefore, we find no merit in Smith’s arguments that the 4-level upward departure was unreasonable when compared to its earlier 2-level departure. As long as the court had a reasonable basis for imposing the 4-level departure, we must find that the district court did not abuse its discretion, despite the court’s original decision to depart only 2 levels. We conclude that the district court did have a reasonable basis on which to depart 4 levels for § 5K2.6. Although a 4-level upward departure is significant, we believe that this increase is not excessive, in light of § 5K2.6’s discussion that “the discharge of a firearm might warrant a substantial sentence increase.” USSG § 5K2.6 (emphasis added). The court concluded that a 4-level increase was more than justified considering that Smith had fired his gun in a manner which manifested clear intent to kill Officer Hoing, and that the officer would have indeed been killed other than for Smith’s failure of “being an extremely good shot.” (J.A. at 77.) We defer to the district court’s determination of facts and, given Smith’s intent to kill and § 5K2.6’s allowance of a “substantial sentence increase,” we hold that the 4-level departure was reasonable. For these reasons, we affirm the district court’s ruling and hold that the court did not abuse its discretion in imposing a 4,-level upward departure for § 5K2.6 on remand. C. Vindictive Sentencing Smith argues that the district court violated his constitutional due process rights by engaging in vindictive sentencing on remand. Smith characterizes the district court’s decision on remand to increase his upward departure from 2 levels to 4 pursuant to § 5K2.6 as a vindictive act in response to Smith’s successful appeal of his original sentence. The government, in response, argues that a constitutional challenge on the grounds of vindictive sentencing cannot be maintained where the resentence term was shorter than the original sentence. Since the district court resentenced Smith to 228 months, as opposed to 248 in its original sentence, the government requests that we reject Smith’s argument. Furthermore, the government argues because the court had a permissible basis upon which to depart upward by 4 levels, its decision could not have been a vindictive act in response to Smith’s successful appeal of his original sentence. Constitutional challenges to sentences are questions of law, and thus, we review de novo the issue of vindictive sen tencing. United States v. Jackson, 181 F.3d 740, 743 (6th Cir.1999). We have held that if: (1) a more severe sentence is given on remand; and (2) the defendant is merely resentenced and not retried on remand, then there will be a presumption that the district court engaged in vindictive sentencing. Id. at 744. The presumption may be overcome by objective information which would justify the increased sentence. Id. But where the presumption does not apply, the appellant must make an affirmative showing of actual vindictiveness. Id.

101534-7606

McLAUGHLIN, Circuit Judge. The appeal here is from the decision of the district court holding that there was substantial evidence to support the final determination by the Secretary of Health, Education and Welfare that claimant-appellant (claimant) was not entitled to disability benefits under the Social Security Act, 42 U.S.C.A. § 401 et-seq. Claimant’s application to establish a period of disability under Section 216(i) of the Act, 42 U.S.C.A. § 416(i), was filed on December 23, 1959. His application for disability benefits under Section 223, 42 U.S.C.A. § 423, was filed on September 14, 1960. In both applications the alleged disability impairment was stated to be anthracosilicosis and the date upon which claimant became unable to work was May 16, 1959. The applications were denied initially and upon reconsideration. A hearing was held at claimant’s request on August 11, 1961. The evidence established the following facts: Claimant is a 52 year old man with a sixth grade education. For 29 years he worked inside anthracite coal mines cutting coal with hand tools and explosives, and timbering. In 1953 he left the mines and went to work for Bethlehem Steel Company. After a few months, however, he was laid off and returned to work in the mines until May 20, 1955 when he left upon the advice of his doctor and again obtained employment with Bethlehem Steel. In September of 1957 claimant was laid off at Bethlehem Steel because of lack of work. While employed by Bethlehem he had lost no time because of illness. However, since his lay-off in 1957 he has sought no other work. Claimant said in a 1960 interview with a Bureau field representative that after his lay-off in 1957 he felt he was able to do light work, but at the time of the interview, three years later, he felt unable to do any work. In explanation to the hearing examiner claimant stated “I didn’t look because there was no place to look for it as far as that goes.” He applied for and received unemployment insurance in 1957, which continued until his eligibility ran out in 1959. On May 16, 1959 he was found to be totally disabled due to anthracosilicosis by the Pennsylvania Bureau of Workmen’s Compensation and was awarded compensation. The medical evidence before the hearing examiner disclosed that claimant had two impairing conditions: anthracosilicosis and a lumbosacral sprain. The area of disagreement involved the degree of severity and extent 4of impairment found by claimant’s pri'vate physician and those of the other ¡doctors. In determining the extent of claimant’s physical impairment, as he was required to do, the hearing examiner acknowledged that the evidence showed that claimant had some musculoskeletal and pulmonary impairments. He concluded, however, that "although the claimant’s condition of anthracosilicosis has no doubt resulted in some shortness of breath and other complaints, pulmonary function studies, chest X-rays, and exercise tolerance testing did not show such a loss of respiratory function as would continuously prevent the claim ant from engaging in any substantial gainful activity.” In reference to the impairment of claimant’s musculoskeletal system (back condition and alleged arthritis of hands, fingers and left arm) the hearing examiner found that the ■complaints “were not in keeping with the ■objective medical findings of record, such as X-rays and clinical findings delineating loss or restriction of motion of the various joints.” The examiner con-eluded that although these impairments prevent claimant from performing heavy labor they had not so affected his remaining capacity for “weight-bearing, walking, standing, sitting, stooping, grasping, lifting, reaching and bending” so as to ■continuously prevent him from engaging in any substantial gainful activity. We have carefully examined the •medical reports in the record and find no need to detail them here. The examiner’s findings as to the severity of •claimant’s impairments are based upon his evaluation of the contradictory medínal evidence and are soundly supported by the great preponderance of the evidence. With respect to the second aspect of the test for disability, we find that there is substantial evidence to support the Secretary’s determination that ■claimant’s impairments did not result in his inability to engage in any substantial gainful activity. It is well settled that in ■order for a claimant to sustain the general burden of proof of his disability required by the Act he need not establish .a complete absence of any opportunity for substantial gainful employment. The claimant’s statutory obligation is .said to be judged in a “practical way” in the context of the Act and the manner in which, of necessity, it must be administered with informality and in great volume. It is clear, however, that he must at least demonstrate that he is unable to do his-former work. There is no question that claimant cannot follow his former occupation as a coal miner. However, we do not believe that he has shown an inability to do work of the character he performed at Bethlehem Steel. Claimant’s work experience with Bethlehem Steel appears to have been quite varied for he states that he did “25, 50 different kinds of jobs there.” Initially, in 1953 his work involved manual cleaning jobs that were designed for him to “get acquainted with the place.” He then moved on to work as a “swing grinder,” a job that involved swinging a large grinding wheel along the steel in order to remove the cracks. Finally, claimant was put on the radiac machines and saws which were used for cutting steel. In this job, the steel was brought to his machine and placed in it by means of an overhead crane and claimant then cut it to the requisite size. The cut pieces were removed by either crane or helper, so that claimant’s duties were restricted to “setting up” the saws and then sitting and cutting the lengths as the steel was brought to him. The record indicates that claimant’s work at Bethlehem Steel when he returned there in 1955 consisted primarily of operating these saws. Claimant testified at the hearing that his breathing did not interfere with his work at Bethlehem Steel at the time he was laid off in September 1957. He contended, however, that between that date and May 16, 1959, when he became disabled, both his back and respiratory conditions became worse so that he could no longer perform such work. The difficulty we find with his position is that the objective medical evidence does not confirm his testimony of subjective ailments. The examiner’s findings with respect to the severity of his impairments, noted above, considered against the background of work experience which claimant has had lead us to conclude that claimant has not sustained his burden of proving that, at the very least, his former type of employment was no longer open to him. The judgment of the district court will be affirmed. . This factor may he of some significance on the question of whether claimant has met his burden of proving disability. See e. g., Adams v. Flemming, 276 F.2d 901, 904, footnote 3 (2 Cir., 1960) ; Gotshaw v. Ribicoff, 307 F.2d 840, 845 (4 Cir., 1962). . This determination by a state agency is, of course, not binding on the Secretary. . The decision of the hearing examiner became the final decision of the Secretary when the Appeals Council denied claimant’s request for review on December 1, 1961. See Goldman v. Folsom, 246 F.2d 776, 778 (3 Cir., 1957). . Claimant attributes Ms back condition to a “back injury” he suffered when he was caught in a mine fall in 1945.

7388891-23160

MEMORANDUM OPINION AND ORDER NEESE, Senior District Judge. The petitioner Mr. Carlton D. Richardson applied pro se for the federal writ of habe-as corpus, claiming he is in the custody of the respondent-warden pursuant to the judgment of conviction of May 23, 1983 of the Criminal Court of Tennessee for its 22nd judicial district (encompassing Maury County) in violation of the federal Constitution, Sixth Amendment, Right to Compulsory Process Clause; and Fourteenth Amendment, § 1, Right to the Due Process of the Law Clause. 28 U.S.C. §§ 2241(c)(3), 2254(a). He claims he has exhausted his available state-remedies by having presented fairly his claims herein to the Court of Criminal Appeals of Tennessee and the Supreme Court of Tennessee, 28 U.S.C. § 2254(b). Mr. Richardson claims that his federal right to the due process of law was violated when: 1. the prosecution used perjured testimony against him during his trial; 2. the prosecution failed to disclose information favorable to his defense; and 3. he was required to participate in a tainted “show-up” for identification-purposes. “No State shall * * * deprive any person of * * * liberty * * * without due process of law * * Constitution, Fourteenth Amendment. “ * * * ‘A fair trial in a fair tribunal is a basic requirement of due process.’ * * *” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642[3], 6 L.Ed.2d 751 (1961). Furthermore, suppression by the prosecution of evidence favorable to an accused upon request violates due process where evidence is material either to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 104, 83 S.Ct. 1194, 1196-1197[3], 10 L.Ed.2d 215 (1963). Mr. Richardson claims also that his federal right to compulsory process was violated when his trial-Court refused to allow a witness on his behalf to testify. “In all criminal prosecutions, the accused shall enjoy the right * * * to have compulsory process for obtaining witnesses in his favor * * Constitution, Sixth Amendment. As it does not appear plainly on preliminary consideration of the face of the applicant’s petition that he is not now entitled to relief in this Court, Rule 4, Rules — § 2254 Cases, it hereby is ORDERED that the respondent-warden file an answer in accordance with Rule 5, Rules — § 2254 Cases, within 23 days here-from, and that a copy of the petition herein and of this order be served forthwith by the clerk of this Court by certified-mail on the respondent-warden and the attorney-general and reporter of Tennessee. Rule 4, Rules — § 2254 Cases. The noticed slow movement of the mail provides good cause for the additional time allowed. 28 U.S.C. § 2243; Rule 81(a)(2), F.R.Civ.P. Should it be the respondent’s contention that the petitioner has not exhausted his available state-remedies, he may limit his answer to such issue, in which event the Court will consider first the exhaustion-matter, and thereafter will allow the respondent additional time in which to file a supplemental answer, addressing the merits of the petition, as may be indicated. ON THE MERITS The respondent answered, see order herein of March 2, 1988. It appearing that no evidentiary hearing is required, the Court makes “such disposition of the petition as justice shall require.” Rule 8, Rules —§ 2254 Cases. The pertinent historic facts herein, stated by the Court of Criminal Appeals of Tennessee, follow: “The defendant, Carlton Daryl Richardson, was convicted of aggravated rape of a 15-year-old girl and sentenced to 30 years imprisonment. * * * On the morning of August 3, 1983, the 15-year-old victim was at the home of her parents in a rural section of Maury County [, Tennessee]. Her grandmother was in bed recovering from a heart attack. Her father was at a point on their farm north of the house, using a gas-powered weedeater. The child’s mother was away cleaning the home of the victim’s grandmother. “At some time * * * [about] * * * 10:00 and 11:00 that morning, as the victim was taking clothes into the house from the clothesline, she saw a man sitting on the carport steps. He told her that he needed to use the telephone and asked her if she were home alone. She told him that she was alone and was not allowed to let anyone in the house. She then opened the screen door and went inside. However, the man grabbed the door, prevented her from shutting it and followed her into the house. She went into the kitchen and pointed to the telephone but the man did not use the telephone. He told her that he had been waiting for her. The man instructed her not to scream and came toward her. He pushed her to the floor, put his hand over her mouth, tore her clothing, unzipped his pants and inserted his penis into her vagina. The man did not remove his clothing. The victim was wearing a jumpsuit with short pants. He tore the bottom of her jumpsuit but did not remove it. The victim was not sure whether the man ejaculated. “After the man left, the victim continued to lie on the floor for a short time. She went to the bathroom and placed her bloody underpants in some water. She then telephoned her mother and told her of the attack. The mother estimated the time of the call as being * * * [between] 10:15 and 10:30 A.M. When the victim’s father and mother entered the house, they saw that the victim’s jumpsuit was torn and that she was bleeding and hysterical. When she had partly calmed, she tried to give her father a description of the rapist. She told him that she had never seen her assailant before.1 “At 11:04 A.M., Mr. Guy Porter, Criminal Investigator from the Maury County [, Tennessee] Sheriff’s Department, was notified by telephone. By the time that Mr. Porter arrived at the victim’s residence, she had calmed sufficiently to give him a description of the man who attacked her. She described him as a young white male— not the ‘hippie type.’ She described his hair as being similar to hers, not dark and not blonde. She stated that his face was ‘rough,’ and that ‘there might be acne marks on his face.’ He was wearing extremely faded bluejeans that were too large for him and had no shirt. Due to the victim’s hysteria, the description was given in ‘sketches.’ Based on this description, Officer Porter investigated the area for suspects.2 “Early that same afternoon the victim met with Detective Don Rose, who made a composite drawing of the rapist with the victim’s assistance. The victim described the attacker to Detective Rose as being of medium build, with sandy hair and a ‘rough’ face. Detective Rose testified that the victim was satisfied with his composite drawing except for his depiction of the rapist’s hairstyle. Rose drew the hair as being cut straight across the front in bangs whereas the victim described the hair as being swept across and down to the eyebrow. The hairstyle on the composite drawing was never changed to the victim’s satisfaction. “Before the composite drawing was completed, Officer Porter went to the Joe Richardson house, which adjoins the victim’s parents’ farm to the south, and saw the defendant. He observed that the defendant was wearing clothes matching the victim’s description. When Porter returned to the victim’s residence and saw the composite picture drawn by Rose, he concluded that the defendant was the rapist. Porter, accompanied by Officer Rose, returned to the Joe Richardson farm for the defendant. The victim’s father also recognized the drawing as depicting the defendant and so commented. The victim testified at a suppression hearing that she did not hear anyone mention the defendant’s name as the rapist. “Before the composite photograph was completed, Reserve Deputy Sheriff Fred Shelton arrived with a bloodhound. Before reaching the victim’s residence, he observed that numerous people were in the yard so he did not take the dog into the yard. Shelton started circling the dog (Blackjack) about 100 yards north of the house in a westerly direction. The victim’s house is on the east side of the road. The dog picked up a track approximately 300 yards south of the victim’s residence on the west side of the road at a creek near the south end of a small field or garden spot. The scent was picked up by Blackjack about the ‘length of this courtroom’ west of the road. Shelton knew that he had a ‘back trail’ because he saw a footprint at the creek pointing in the opposite direction from which Blackjack was tracking. The dog followed this trail to the residence of the defendant’s grandmother, Mrs. Alvie Richardson. The dog then followed a trail to the residence of the defendant’s uncle, Joe Richardson, which was on the east side of the road and adjoining the victim’s farm to the south. The dog went upon the front porch and ‘dug at the screen.’ Shelton had to pull Blackjack away from the screen door. He returned to the victim’s farm and resumed his circle of the residence. When he reached a point directly to the rear of the victim’s residence and about ‘twice the length of the courtroom’ from it, Blackjack struck another trail. The dog continued south along ‘visual tracks,’ where the weeds had been trampled. That trail led back to the Joe Richardson house (south of the victim’s house). “Officers Porter and Rose were leaving the Joe Richardson driveway with the defendant in an unmarked police car and stopped near Shelton and Blackjack. The dog attempted to get into the car. The police car continued to the victim’s residence and the dog pulled Shelton after the car. Shelton and the dog did not arrive at the victim’s residence until after the defendant had been taken out of and was put back into the police car. “At the victim’s residence, the defendant was directed to get out of the car and stand in front of the victim. She became hysterical when she saw the defendant and cried out to not let him hurt her. Immediately thereafter, her father attempted to attack the defendant. While the defendant was placed back into the police car, Blackjack arrived and attempted to attack the defendant. “The victim positively identified the defendant at trial. “ * * * [Tjhere was semen on [the] defendant’s underpants. There was no semen on the victim. * * * [T]he victim’s panties were bloody and were washed by her and * * * she also washed her vaginal area with a washcloth before telephoning her mother about the attack. “Dr. Hartman, who examined the victim at the hospital on the day of the crime, testified that he found a recent tear of her vaginal opening, as well as a tender area on her head.3 It was his opinion that the victim was not sexually active prior to the rape and that penetration had probably occurred. “The defendant * * * testified that on the morning of the crime he was with his grandmother, Mrs. Alvie Richardson, a part of the time and performed various chores on his grandmother’s farm. He stated that he picked tomatoes, picked and shucked some corn, helped his brother with the cows, repaired a fence and other activities.4 He testified that about 11:30 A.M., he walked to the home of his aunt, Mrs. Joe Richardson, for a ‘bush hook.’ He was cutting a fence row on the Joe Richardson property from about noon until about 2:00 P.M. He was working on a fence along the road which was near a ‘brown spot’ on an unknown exhibit. “The defendant admitted that his face was ‘rough’ on the day of the crime. His photograph revealed that his hair was brushed to one side in the manner described by the victim. His general features resemble those depicted in the composite picture prepared by Detective Rose. “The defendant did not finish high school because he had some problems. * * * [A]fter 19 months or so in the Navy, he was asked to leave because of an inability to adjust to life in the service. * * * [H]e had no automobile and walked everywhere he went. “The grandmother and aunt of the defendant testified in support of his alibi defense * * * [and] made statements contradictory to their trial testimony.” “1 The defendant was 7 years older than the victim. Before quitting school and going into the military service, the defendant lived with his grandmother, Mrs. Alvie Richardson, whose farm was across the road from that of the victim’s parents. From the time that the victim was 6 years old until she was about 9 years old, she rode the schoolbus with the defendant. She testified that he had changed drastically since ‘she was little’ and she did not recognize him on the day the crime was committed as anyone she had ever seen. "2 There was a white pickup truck in the area on that morning which was determined to have been driven by Flo Fleming, who was handing out campaign cards. There was also a road crew working in the neighborhood. Officer Porter determined that neither Mr. Fleming nor any of the members of the road crew approximated the description given by the victim. "3 She struck her head while falling to the kitchen floor. "4 He testified as to where he was during this period. We are unable to follow his testimony because he was apparently using photographic slides which were not in the record and he would point to places on these exhibits. Of course, we have no way of knowing what place he was pointing out.” State of Tennessee, appellee, v. Carlton Daryl Richardson, appellant, no. 84-16-III, in the Court of Criminal Appeals of Tennessee, op. of March 8, 1985, pp. 1-6. This finding is presumed to be correct, as none of the conditions of sub-§’s (l)-(8), inclusive, is alleged to have been extant with regard to this particular finding. I Mr. Richardson contends, in that his federal right to the due process of the law was infringed when he was required to participate in an unreliable and tainted one-on-one “show-up.” “[t]he practice of showing suspects singly to persons for the purpose of and not as part of a line-up, has been widely condemned[ ],” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), “[t]here is no against a viewing of a suspect alone in what is called a ‘one-man showup’ when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy. The rationale underlying this is in some respects not unlike that which the law relies on to make an exception to the hearsay rule, allowing spontaneous a standing which they would not be given if uttered at a later point in time. An early identification is not error. Of course, proof of infirmities and subjective factors, such as hysteria of a witness, can be explored on cross-examination and in argument. Prudent police work would these on-the-spot identifications to in which possible doubts as to the identification needed to be resolved promptly; absent such need the conventional viewing is the appropriate procedure.” Bates v. United States, 405 F.2d 1104, 1106[1] (D.C.Cir.1968). The foregoing recitation of the historic facts herein reflect that the investigation of the crime herein was triggered at 11:04 o’clock, a.m., soon after the crime was and that the “one-man showup” of the petitioner occurred only some four hours afterward. This was “near the time of the alleged criminal act of the” petitioner within the meaning of the decision in the Bates case, supra. “It is the likelihood of misidentification which violates a defendant’s right to due process * * Neil v. Biggers, 409 U.S. 198, 93 S.Ct. 375, 381-382, 34 L.Ed.2d 401 (1972). Yet, consideration of the historic facts herein reveals that this identification passes muster under the fivepronged test delineated in that decision, id., 409 U.S. at 199, 93 S.Ct. at 382; they show: (1) the victim had the opportunity to view the petitioner out-of-doors in the daylight not long before noon at a time when criminal activity was unlikely to have been suspected as well as indoors soon afterward when the commission of the crime began and was completed; (2) at a time when, it is inferable reasonably, the presence of the petitioner, whom the victim did not recognize as one she had known, outside and inside her home was the main focus of her attention; (3) the description she first gave investigators of her assailant and his attire as well as that she gave to an artist was accurate to a degree that an investigator and the father of the victim recognized the petitioner therefrom as such assailant; and the victim's description of her attacker’s unusual hairstyle was especially significant to her description; (4) the terrified reaction of the victim upon confronting the petitioner at the “showup” provided strong evidence that her level of certainty that the petitioner was her rapist was very high; and, only about four hours elapsed between the time of the crime and that of the showup. That level of certainty is not diminished appreciably by the failure of the victim to have noticed a moustache on her rapist (which was described as “light” and could have been mistaken for his having been unshaven). Neither is it diminished by the failure of the contemporaneous notes taken initially by an investigating officer to have reflected that the victim reported the was wearing “faded blue jeans”; that he had “brown hair”; and “had acney [sic] spots on face”; and was “not dark, small.” Some degree of interpretation must be expected to have been involved in such note taking. From all the foregoing, this Court hereby FINDS that the “one-man showup” to which the petitioner was subjected was not tainted constitutionally. Mr. Richardson contends, nonetheless, that this Court should consider in that respect the facts, that the trailing bloodhound and the victim’s father attempted to attack him, influenced the victim in her identification of him. Thesé attacks occurred after the victim had made her identification and, thus, had no bearing on that issue. Mr. Richardson contends also that the victim received coercive pressure from the police to identify him, in that she was told to take a quick look at him. This does not amount to coercive pressure. He contends furthermore that she was influenced by statements made by the investigating officers and her father, that they thought the petitioner might have been the attacker. The Court of Criminal Appeals of Tennessee found that “[t]he victim did not remember hearing these statements but, in any event, at the time she did not know the name of the [petitioner] or what Carlton Richardson looked like.” State of Tennessee, appellee, v. Carlton Daryl Richardson, appellant, supra, at p. 21. These contentions, likewise, have no merit. In totality, this Court finds that the showup identification of Mr. Richardson by the victim was reliable constitutionally. II Mr. Richardson asserts also that he was denied the federal due process of the law because: (1) police officers deliberately bypassed a line-up and instead opted for the tainted show-up, and (2) the tainted show-up resulted in a tainted in-court identification. In that this Court has found, supra, that the complained-of show-up was not tainted constitutionally, these claims are without merit. III Mr. Richardson alleges an additional infringement of his right to federal due process, in that he claims the police officers never told him they were taking him to a show-up but, rather, told him they were taking him to the police station to be questioned. This allegation, even if true, does not state an allegation that goes to the constitutionality of his conviction and, for that reason, is not a ground upon which the relief sought herein may be granted. IV Mr. Richardson claims also that his trial Court erred in refusing to admit into evidence drawings made by a professional artist. This claim pertains to an evidentia-ry issue. “Evidentiary issues do not support a petition under [28 U.S.C.] § 2254 unless the introduction of such evidence violates a specific constitutional provision.” Freeman v. Mabry, 570 F.2d 813, 814 n. 2 (8th Cir.1978), cert.den., 489 U.S. 845, 99 S.Ct. 142, 58 L.Ed.2d 146 (1978), citing Spencer v. State of Texas, 385 U.S. 554, 568-569, 87 S.Ct. 648, 656, 17 L.Ed.2d 606 (1967). Mr. Richardson asserts that the failure to admit such evidence constituted a violation of his federal-constitutional right to compulsory process and due process of the law. “As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevent a fair trial.” Lisenba v. People of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290[19], 86 L.Ed. 166 (1941), reh. den., 315 U.S. 826, 62 S.Ct. 620, 86 L.Ed. 1222 (1942). The Court of Criminal Appeals of Tennessee found that: The artist had taken the composite drawing made by Detective Rose and materially changed the features of the person depicted in the composite. The composite drawing was an outline with appropriate shading to reveal the shape of the head and facial features of the assailant. The artist demonstrated that, by the use of additional shading on the composite, the shape of the head and all facial features of the assailant could be altered. The artist made these changes by using pastel chalks. She did not use a description or guidance given by the victim in making these alterations but made these several changes by use of her creative imagination. State of Tennessee, appellee, v. Carlton Daryl Richardson, appellant, supra, p. 25. The failure to allow the admission of this evidence which, as aptly stated by such Court of Criminal Appeals, “would not impeach the testimony of the victim [but] * * * would merely demonstrate the skill and imagination of the artist,” in no way infected fatally Mr. Richardson’s trial. This claim, thus, is not meritorious. V Mr. Richardson claims also that the admission of the so-called “bloodhound evidence” violated his federal rights to the due process of the law and right to confrontation. Tennessee law requires that 5 criteria be met in order to establish a proper foundation for the admission of bloodhound-evidence. See, State v. Barger, 612 S.W.2d 485, 491-492 (Tenn.Cr.App.1980). The record supported the Tennessee Court of Criminal Appeal’s finding that these criteria were met. Furthermore, Mr. Shelton was cross-examined at length about the pertinent tracking-procedure employed. Additionally, the trial judge gave the following jury instruction: Ladies and Gentlemen: You have heard evidence in this trial pertaining to the use of a bloodhound, this is commonly called bloodhound evidence. I caution you that a bloodhound’s performances are not infallible, and evidence pertaining to the use of a bloodhound should not be given undue weight, and such evidence alone is not sufficient to convict. I do instruct you that this dog, Black Jack, is properly qualified under the law to trail human beings and the scent of human beings. Accordingly, the Court finds that Mr. Richardson was not prejudiced unfairly by the introduction of the bloodhound evidence, and his claim in that respect has no merit. YI

4025809-18529

MEMORANDUM OPINION JOHN H. PRATT, District Judge. On or about September 11, 1986, Capital Engineering & Manufacturing Co., Inc. and five of its chief officers [hereinafter “plaintiffs” or “Capital”] were suspended from pursuing contracts with the United States Army. Plaintiffs bring this action against the Secretary of Defense, the Secretary of the Army, and other high-ranking Army officers [hereinafter “defendants” or “the Army”] challenging the suspension, which was lifted seven months after its imposition, as well as the award to plaintiffs’ competitors of two government contracts during the term of the suspension. Defendants have filed a motion to dismiss this action on jurisdictional and related threshold grounds. In addition, defendants have filed a motion seeking a protective order precluding plaintiffs from conducting discovery reaching beyond the administrative record. The parties have also filed cross-motions for partial or total summary judgment, consideration of which has been postponed pending resolution of the preliminary issues raised in defendants’ motions to dismiss and for a protective order. Both of these latter motions have been briefed in full. After briefly reviewing the background of this action, we set forth our reasons for denying defendants’ motion to dismiss and granting defendants’ motion for a protective order. Background Capital is an Illinois-based corporation and long-time government contractor which manufactures and produces a variety of metal products. On September 24, 1981, the United States Army Tank Automotive Command awarded Capital a contract under which Capital was to produce 106 armored vehicle launch bridge kits at a total price of more than $9 million. Soon thereafter an additional 61 kits and about $5 million were added to the contract provisions. When completed, such kits are fitted to combat tank chases to enable river crossings. On September 11, 1986, after a wide-ranging investigation conducted by Army investigative units, Brigadier General Donald Hansen, the Army’s suspending authority, determined that there existed evidence leading him to reasonably believe that Capital knowingly and intentionally produced defective launch bridge kits for the Army. Hence, Capital was informed by letter that it and its chief officers were being suspended from pursuing further Army contracts. Capital promptly moved to have the suspension action rescinded. On April 23, 1987, after reviewing various submitted materials, General Hansen terminated Capital’s suspension, but, in a follow-up letter dated May 4, 1987, declined to declare the suspension void ab initio. During Capital’s suspension, Army contracts were awarded to Intergy Co. and Universal Hydraulics, Inc., two of Capital’s competitors. Capital’s bids for these contracts were not entertained in light of its suspension. Capital and its chief officers filed this action in June 1987. On July 17, 1987, plaintiffs moved for partial summary judgment as to the suspension issue. Defendants duly responded by filing a cross-motion to dismiss or, in the alternative, for summary judgment. Because defendants’ cross-motion raised colorable threshold challenges to the jurisdictional posture of this action, we ordered the parties to complete briefing on these pivotal questions before addressing other matters raised in the parties’ pleadings. Memorandum Order of February 5, 1988. Discussion Defendants’ Motion to Dismiss Consistent with our order of February 5, 1988, the parties have extensively briefed the threshold issues raised in defendants’ cross-motion. In the course of the parties’ briefing, the posture of this action and the parties’ respective positions have been clarified considerably. Defendants’ initial objections to this action were two-fold. First, defendants contended that plaintiffs’ action, though framed as one seeking declaratory relief, amounted to a suit for over $10,000 in money damages against the government. Hence, defendants maintained that jurisdiction over this suit lies exclusively in the United States Claims Court. 28 U.S.C. § 1491(a)(1). Second, defendants asserted that plaintiffs had failed to join two indispensable parties to this action, those being the successful bidders for the two contracts sought by but denied Capital during its suspension. In opposing this motion, plaintiffs adamantly maintained that they were not suing in contract, either on an express or implied theory, and did not seek monetary, contract, or injunctive relief of any sort. As if to make this point plain, plaintiffs moved to amend their complaint to delete references therein to an amount in controversy and to the Federal Courts Improvements Act of 1982, 28 U.S. C. § 1491(a)(2), the latter of which pertains to the jurisdiction of the Claims Court. With this amendment plaintiffs emphasized their intention to seek only declaratory relief. Presented with this clarified construction of plaintiffs’ suit, defendants have re-framed their objection. They now assert that plaintiffs seek declarations as to matters which do not present a live case and controversy, and which, therefore, are not suitable for adjudication. Armed with this understanding of the present posture of the parties’ dispute, we turn to consider the two declarations sought by plaintiffs. Plaintiffs first take issue with the manner in which Capital was suspended from receiving Army contracts. Specifically, Capital charges that defendants imposed the suspension without having provided Capital adequate notice of the underlying charges, without affording Capital access to certain allegedly exculpatory evidence, and without providing “fundamental fairness” as required by government regulations governing suspension procedures. Plaintiffs’ Opposition to Defendants’ Motion to Dismiss or For Summary Judgment (“Pltf. Opp.”) at 6. Capital contends that as a result of these procedural deficiencies the suspension was imposed in violation of its right to due process under the law. Accordingly, Capital seeks a declaration that its suspension is void ab initio. In their motion to dismiss, defendants contend that all matters pertaining to plaintiffs’ suspension are moot, since the suspension has now been lifted. Defendants’ position, while superficially appealing, is untenable. It is certainly true that defendants, by lifting the suspension, permit Capital to bid for Army contracts. Indeed, since the suspension was lifted Capital appears to have received at least one such contract. Nevertheless, it is undisputed that in lifting the suspension defendants did not purport to wipe Capital’s slate clean of the potentially adverse implications of a government suspension. The Army’s April 23, 1987 letter lifting the suspension was quite specific on this point: “General Hansen wants it understood that this decision does not amount to a finding that Capital is presently responsible. The evidence presented has not resolved the issue of present responsibility.” Complaint Ex. E (emphasis supplied). Instead, the letter makes clear, General Hansen lifted the suspension upon a “balancing” of risks and interests, and upon recognition that Capital’s submissions had raised genuine issues of material fact; that the risk to soldiers due to alleged defects in Capital’s products was not as grave as originally thought; and that proceeding with a fact-finding hearing against Capital would interfere with an ongoing criminal investigation pertaining to related matters. Id. A follow-up letter, dated May 4, 1987, reiterates General Hansen’s initially proffered reasons for lifting the suspension. It adds that in taking this action General Hansen “certainly did not make any findings as to ‘serious procedural improprieties’ ” or as to “whether certain reports were exculpatory.” Defendants’ Motion to Dismiss or For Summary Judgment, Appendix B. The correspondence concludes that “General Hansen’s recent action to terminate the suspension does not affect the fact that a factual basis for suspension existed in September, 1986,” and that “[t]hat evidence and factual basis remains today.” Id. at 2. The upshot of these correspondences is that Capital’s suspension, while lifted, has not been declared void ab initio, and hence remains a part of Capital’s contracting history. The letters also confirm that Major Karl Warner, the author of the Army correspondences, continues to believe that the suspension was well-founded when imposed. Courts and government regulations alike acknowledge that a suspension of a government contractor is a “serious action,” Defense Acquisition Regulation § 1-606, and that even “a temporary suspension” in certain circumstances “inflicts serious damage.” Electro-Methods, Inc. v. United States, 3 Cl. Ct. 500, 509 (1983), rev’d in part on other grounds, 728 F.2d 1471 (Fed.Cir.1984). This is hardly surprising. Government procurement constitutes the lifeline of certain government contractors, and a contractor’s ability to acquire such contracts depends heavily, if not primarily, on its reputation for integrity and responsibility. It is surely for this reason that certain governmental agency regulations require that contractors submitting bid proposals indicate whether they have “been debarred or suspended from the award of public contracts.” GSA Federal Acquisition Regulation Supplement § 552.209-71(a)(2). ’ For the foregoing reasons, Capital seeks a declaratory judgment that the Army issued its suspension in violation of government regulations and principles of due process. This equitable remedy will allegedly serve to “cleanse” Capital’s record of the allegedly improper suspension. Defendants have taken no action, and have made no representation, which renders this request moot. Indeed, if Major Warner’s second letter is any guide, the parties appear to harbor a live and vigorous dispute as to whether the suspension was properly imposed. Moreover, this, court is certainly in a position to rule on plaintiffs’ due process claims and, if they prove meritorious, to grant the relief requested. To rule otherwise would be to permit the Army to evade judicial review of allegedly unfounded suspensions, yet leave the blemish of such suspensions on the targets’ records, by the expediency of terminating the subject suspensions before adjudication. As to this issue, then, the court is presented with “a real and substantial controversy admitting of specific relief through a decree of a conclusive character.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975). Plaintiffs next seek from this court a declaration “that the defendants’ failure to award Capital the contracts awarded to Universal Hydraulics and Intergy Co., respectively, was unlawful because Capital was the offeror submitting the lowest-priced proposal that was most advantageous to the Army under the evaluation criteria set forth in the [contract awarded to Universal Hydraulics] and submitted the lowest bid under [the contract awarded to Intergy Co.].” Complaint, Prayer for Relief (b). Plaintiffs seek only a declaration to this effect, and expressly disclaim any desire to have the contract awards set aside. As to this request defendants again claim that there is no live case or controversy. In fact, this scenario can profitably be compared with others in which this court has found itself presented with live disputes, and has awarded or considered awarding equitable relief, while at the same time refusing to redirect procurements. For instance, in Aero Corp. v. Department of Navy, 549 F.Supp. 39 (1982), this court found a substantial- likelihood that the Department of Navy violated procurement law when it awarded a particular contract on a non-competitive basis and failed to notify plaintiff Aero Corporation and other interested parties of this procurement decision in a timely fashion. Id. at 44-45. At the same time, the court concluded that various “public interest considerations” militated against redirecting the contract to Aero Corporation long after the contract was originally awarded. Id. Despite its unwillingness to upset the procurement action the court retained jurisdiction over the suit, reasoning that “plaintiff may be entitled to a declaratory judgment that the decisions of defendant precluding [Aero Corporation] from competition for these [ ] contracts were unlawful.” Id. at 45. As the court explained, “the fact that the Court cannot now alter the course of an apparently unlawful procurement does not relieve it of the obligation to determine whether plaintiff is entitled to some other form of interlocutory affirmative relief.” Id. To rule otherwise, concluded the court, might permit unlawful procurement decisions to evade judicial review. Id. See also Bollinger Machine Shop & Shipyard, Inc. v. United States, 594 F.Supp. 903, 910, 915 (D.D.C.1984) (disappointed bidder in bid protest action entitled to declaratory judgment that Coast Guard’s award of contract was unlawful, even though court declines to order Coast Guard to accept plaintiff s bid). Defendants additionally assert that the two successful bidders for these contracts are indispensable parties to this lawsuit, and that plaintiffs’ failure to join them is fatal to this action. Fed. R.Civ.P. 19. It initially bears mentioning that in neither of the cases cited above was the successful bidder joined as a party defendant, despite the fact that in both cases their rights to the subject contracts were directly at stake. Moreover, we fail to see how the presence in this action of Intergy and Universal Hydraulics is necessary, indispensable or even helpful. We reiterate that “Capital has not sought to have the contracts awarded to its competitors ... can-celled and resolieited; nor has Capital otherwise here sought that the awards be directed it.” Pltf. Opp. at 6. Thus, the declaratory relief envisioned by plaintiffs does not implicate the successful bidders’ rights to these Army contracts. Nor is input from Intergy and Universal Hydraulics required before this court can rule upon the manner in which Capital was denied these contracts. Accordingly, we conclude that the present action presents a live case and controversy which suffers from no deficiencies in pleading or joinder of parties. Defendants' Motion for Protective Order Having denied defendants’ motion to dismiss, and thereby satisfying ourselves as to the propriety of this court’s exercise of jurisdiction over this case, we proceed to the parties’ discovery dispute. In its motion for a protective order defendants object to plaintiffs’ avowed intention to depose some seven agency officials who allegedly possess personal knowledge pertinent to General Hansen’s suspension decision. In their subpoenas and notices of deposition duces tecum plaintiffs also request that the deponents produce certain documentary materials. We have already rejected those objections to discovery which formed the basis of defendants’ motion to dismiss. See supra. Because plaintiffs continue to seek these depositions, Pltf. Opp. at 17, we must now consider the additional arguments lodged by defendants in an effort to enjoin discovery. Defendants’ first objection to plaintiffs’ discovery requests is that judicial review of administrative decisions is typically confined to the administrative record. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985) (the reviewing court’s task is to apply the appropriate standard of review “based on the record the agency presents to the reviewing court”). For reasons well articulated by our Court of Appeals in San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1324-26 (D.C. Cir.1984), courts are loathe to depart from the record developed by an agency in reviewing that agency’s decisions. It is clear, in short, that supplementation of the administrative record through post-administrative discovery is “the exception [and] not the rule.” Id. at 1324. One such exception warranting supplementation arises when a plaintiff “ma[kes] a prima facie showing that the agency excluded from the record evidence adverse to its position____” Id. at 1327. Relying in part on this exception, plaintiffs refer to a report dated March 4, 1986 — months before Capital was suspended — which defendants inadvertently produced in the course of briefing the present motions. The report chronicles the results of an investigation into Capital’s launch bridge kits apparently undertaken by Radian, Inc. for the Army. The report, which was not included in the administrative record, contains certain arguably exculpatory comments pertaining to Capital’s work product, including Radian’s ultimate recommendation that “it is not necessary to investigate the delivered AVL Bridge welds any further ... [since] a failure of any of the Boom Outrigger welds would not be a safety hazard____” Without ruling at this juncture on the probity or weight of this report, we note that it was apparently commissioned by the Army; that the report’s tenor appears strikingly more favorable to Capital than General Hansen’s suspension determination; and that at the least Radian’s recommendations and findings merited incorporation — or at least reference — in the administrative record. This is particularly true given that the suspension notice provided plaintiffs announced that the suspension was premised on certain “[government testing” which purportedly evidenced material defects in Capital’s products. Complaint Ex. E. In light of this information, plaintiffs have made out their prima facie case that supplementation of the present record is appropriate. This does not mean, of course, that plaintiffs are necessarily entitled to the seven depositions and potentially voluminous documentary materials they seek. E.g., Sierra Club v. Costle, 657 F.2d 298, 390 n. 2 (D.C.Cir.1981) (court allows supplementation of record by requiring government affidavits responsive to gaps in record, but rejects requests to propound interrogatories and conduct depositions of former agency officials). We need not rule on the precise scope and manner of supplementation, however, for defendants have raised a meritorious concern as to the timing of plaintiffs’ discovery. Specifically, defendants maintain that any discovery in this action must be stayed so as not to interfere with a criminal investigation of Capital and the launch bridge contract which is presently pending in the Northern District of Illinois.

9968478-31422

FLAUM, Circuit Judge. The defendants, Indiana Bell Telephone Co., doing business as Ameritech Indiana, and Ameritech Corp. (collectively referred to as “Ameritech”) appeal the judgment entered against them following a jury trial in the United States District Court for the Southern District of Indiana. The defendants contend that the evidence presented at trial was insufficient to support the jury’s verdict. In addition, the defendants allege various errors by the district court concerning the admission of evidence and the jury instruction's. For the reasons stated below, we reverse and remand this case to the district court for further proceedings consistent with this opinion. I. Facts A. This appeal arises out of a suit brought by the Equal Employment Opportunity Commission (“EEOC” or “Commission”) on behalf of the claimants alleging that Ameritech engaged in unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The sexual harassment claims upon which the EEOC’s suit is based stem from a course of sexually offensive conduct that former Ameritech employee Gary Amos directed at several of his female co-workers. Although only those incidents that occurred after November 21, 1991 can serve as a basis for holding Am-eritech liable for Amos’s actions, all of the incidents are relevant to Ameritech’s knowledge of Amos’s propensity to harass women and to the reasonableness of Amer-itech’s response. As such, it is necessary to recount the entire series of incidents constituting Amos’s allegedly offensive conduct. In 1975, Amos was employed in Ameri-tech’s coin center with Barbara Huckeba. At trial, Huckeba testified that Amos exposed himself to her on three separate occasions. Huckeba also stated that she reported these incidents to her supervisor. Ameritech discharged Huckeba on October 24, 1975, citing her problems with Amos and its belief that Huckeba, as a white female, could more readily find another job than Amos, a black male. All of the complaints surrounding Huckeba’s encounters with Amos were expunged from Amos’s employment record, but two complaints about Amos’s behavior during 1975 were not expunged. These complaints indicate that Amos brushed one co-worker’s buttocks as she bent over, and that Amos partially exposed his penis to another coworker. In February 1988, Amos engaged in conduct that Jacquelyn Stine, a co-worker with whom he was training to be a customer service representative, found offensive. Stine testified that this conduct included telling Stine he was in love with her, smelling Stine’s hair and telling her it was beautiful, and running a strand of Stine’s hair through his mouth. During Stine’s last encounter with Amos, Amos pushed himself against Stine as she stood at a vending machine and Stine noticed that Amos had an erection. As a result of these problems with Amos, Stine left the customer service training program and returned to her previous job as an operator. A copy of Stine’s complaint against Amos was placed in his file, but Ameritech did not discipline Amos at this time. An Ameritech report indicates that on July 18,1989, Amos continued his offensive conduct by partially exposing his penis to a co-worker while seated in the back of a van. Janie Kern, the co-worker involved in this incident, reported Amos’s conduct to Ameritech. At this point, Ameritech warned Amos that he would be disciplined if he were found at fault in any future allegations of sexual harassment. In 1990, six female Ameritech employees formally complained to Ameritech about Amos’s conduct in the small business office where he worked. Of these six women, five indicated that Amos had rubbed his penis against them. Ameritech investigated these complaints and suspended Amos for two weeks. In addition, Ameritech stripped Amos of a sales award and informed him that he faced termination for any such future incidents. At the time the decision to suspend Amos was made, Am-eritech did not review Amos’s personnel files, nor were any of the supervisors involved in the decision aware of Amos’s past history of misconduct. Despite the two-week suspension, Amos continued his harassing behavior. In early 1991, Debbie Murray, one of Amos’s coworkers in the small business office, asked to move to a different desk because Amos was making improper comments. These comments included inviting Murray over to his house and asking her whether she ate breakfast alone. That same year, Am-eritech received an anonymous letter claiming that Amos was still sexually harassing women in the workplace. In the investigation that followed, at least three women confirmed that Amos was still engaging in sexually harassing conduct. In February 1992, Jennifer Rice, another employee in Ameritech’s small business office, complained about Amos’s conduct. Rice stated that Amos rubbed himself against her, rubbed her neck, • and - made inappropriate comments about her body. In response to Rice’s complaint, Brian Bauer, the direct supervisor of both Amos and Rice, and Darlene Olberding, who was in charge of the managers in the small business office, met with Amos. Amos was informed that he could not have any physical contact with anyone in the office, and that further misconduct could result in his suspension or termination. Amos expressed interest in moving out of the small business office, but Bauer told him that a transfer would not be the answer. One of the claimants in this case, Debbie Wentland, was also employed in the small business office and was seated in a four-person cubicle directly across the aisle from Amos’s cubicle. Initially, Amos and Wentland engaged in only innocuous conversations, but during one encounter Amos walked behind Wentland’s chair and placed his hands on her shoulders. Wentland also testified that Amos rubbed and touched his crotch area on a daily basis. At various times, Amos would approach Wentland and touch her, including standing close enough to her desk that their legs touched and rubbing his hand up and down her back. Wentland asked Amos to stop touching her. She complained to Bauer in November 1992 after an incident in which Amos patted her stomach and said “Oh, so you are going to be a mom,” and then followed her to her desk where he continued to talk to her while rubbing his erect penis through his pants. Bauer met with Wentland on November 25, 1992 and informed her that he would forward her complaint to Monica Sharp, Ameritech’s Equal Employment Opportunity (“EEO”) Coordinator. Sharp first met with Wentland to discuss Amos’s conduct, and then met with Amos on two occasions. Sharp informed Amos that he had violated the previous warning not to touch anyone in the office. On December 18, 1992, Sharp recommended that Amos be terminated based on her conclusion that Amos “d[id not] seem able to control himself at Indiana Bell.” After forwarding this recommendation to Ameritech’s legal department, Sharp went on vacation. On December 28, 1992, Labor Relations manager Joyce Leek returned from vacation and, after reviewing Sharp’s recommendation that Amos be terminated, noticed that the thirty-day period for disciplinary action provided for in the collective bargaining agreement had expired. Because Ameritech missed the deadline for disciplining Amos, the company did not take any action against him. However, Sharp did meet with Leek and an official from Ameritech’s legal department. They agreed that the next complaint against Amos would result in an immediate suspension pending investigation in order to avoid missing any deadlines. Amos was then informed that he was not being disciplined because of an administrative error, but that any further misconduct could result in his suspension or termination. In January 1993, Sharp began an investigation to determine whether Amos was continuing to harass Wentland or any of the other service representatives. While Wentland stated that Amos had not harassed her again, she did recommend that Sharp speak to Lori Everts or Patricia Black. Everts, a chief union steward and a claimant in this case, refused to talk to Sharp because she regarded it as a conflict of interest to assist the company in investigating a member of the union. After an unproductive meeting with Black, during which a union steward continually interrupted the interview, Sharp became angry at what she regarded as union interference with the investigation. Sharp informed Leek, Ameritech’s Labor Relations manager, of her concerns. Leek then informed the union president that the company intended to hold the union liable if it were sued as a result of Amos’s conduct. On April 15, 1993, Everts filed a charge with the EEOC based on Amos’s conduct. In her charge, Everts stated that Amos walked around the office with his hands in his pockets fondling his genitalia. Everts also testified that Amos began directing his behavior toward her in February 1993 by brushing up against her with his penis erect. Everts stated that at different times Amos brushed his hand over her buttocks, grabbed her waist, and stared at her and stuck out his tongue. Despite the filing of the EEOC charge Amos’s misconduct continued, including tapping his fingers on Everts’s back, placing his hand on her back as she walked down the hall, and yelling out to her that her legs looked nice. When Ameritech received notice of Everts’s EEOC complaint, it acted according to established company procedures for handling external complaints and referred the matter to Ameritech’s legal department. Ameritech did not investigate the complaint, but rather cooperated with the EEOC investigation. Because Everts had refused to cooperate in Sharp’s investigation, Leek believed that the complaint was in response to the company’s threat to hold the union liable. An attorney in Am-eritech’s legal department ultimately concluded that Everts’s charge had no merit. Amos was not disciplined as a result of the Everts complaint. In June 1993, Patricia Wolter, a supervisor in the small business office, found a note on her desk that read: “Patti, you look so sexy today.” Wolter was upset by the note, and she asked Amos if he was the author. Amos admitted having written the note, but he claimed that it was just a joke. Wolter reported the incident to Carol Mer-riwether, who was serving as EEO Coordinator while Sharp was out of the office. As a result of this incident, Ameritech suspended Amos for thirty days. Wendy Pollard, the third claimant in this case, began working with Amos in the small business office in November 1993. After approximately one month in the office, Amos began touching and grabbing Pollard’s hair and shoulders when he passed. Amos also frequently stared at Pollard while she was working, often with his belt unbuckled. One afternoon, after overhearing a conversation about Pollard’s new jeans, Amos stood up, stared at Pollard’s crotch, and said “Wendy, I think you are right, those jeans are a little too tight.” In other incidents, Amos told Pollard that he would try to stop touching her hair but that he was obsessed, and brought in pictures of topless women and women in lingerie to show Pollard and another female co-worker. The final incident during Amos’s tenure at Ameritech occurred on March 7, 1994. While Pollard was moving her belongings, she looked over the partition next to her new desk and saw Amos sitting in a chair masturbating. Pollard reported the incident to Ameritech’s EEO Coordinator. Ameritech suspended Amos pending investigation and it terminated his employment later that month. B. On February 21, 1995, the EEOC filed a complaint in federal district court against Ameritech. The Commission alleged that Ameritech violated. Title VII of the Civil Rights Act of 1964, 42 U.S.C. •§ 2000e et seq., by subjecting Everts and other similarly situated females to sexual harassment. The EEOC sought both compensatory and punitive damages. Before the trial on the sexual harassment claims against Ameritech began, the district court considered whether to allow Ameritech to present evidence at trial related to its collective bargaining agreement with Amos’s union. Ameritech wanted to present evidence that its decision regarding the timing of Amos’s discharge was influenced by management’s concern that if Amos were discharged in violation of the “just cause” provision of the collective bargaining agreement, Amos would have filed a union grievance, prevailed on that grievance, and been reinstated by an arbitrator. After healing argument on the issue, the district court excluded testimony relating to Ameritech’s concern that Amos might be reinstated under the “just cause” standard. As the court read the relevant law, Title VII required Ameritech to- “act adequately and reasonably to end the harassment.” The district court found that Am-eritech’s collective bargaining agreement, or its fears that an arbitrator might reinstate Amos, were'not relevant in determining the reasonableness of Ameritech’s actions under Title VII. . The district court reaffirmed its eviden-tiary ruling as to the collective bargaining agreement and the-arbitration evidence in a-written’order dated September 15, 1997. In that order, the court stated that “any concerns by an employer that an arbitrator might undo the discipline it has meted out for misconduct does not excuse taking no, or very little, action when [Title VII] requires them [sic] to act promptly to halt any violations of its provisions.” The court also noted its fear that if an employer was entitled to delay taking action against an employee because of the risk of arbitration, employment discrimination law would be subject to “the vagaries of collective bargaining and negotiated grievance and arbitration procedures.” During the course of trial, Ameritech moved for judgment as a matter of law as to punitive damages. Ameritech argued that the EEOC had presented no evidence that would support an award of such damages., The district court denied Ameritech’s motion,- and held that it would instruct the jury on punitive damages. The court’s decision with regard to this instruction was based on the understanding that punitive damages are available if “an employer exhibits a consistent attitude of indifference to the protected rights of the claimant in the face of evidence indicating that corrective action that has already been taken has not stopped the harassment.” The court further stated that the EEOC would have to establish Ameritech’s reckless indifference to the claimants’ Title VII rights by clear and convincing evidence. Near the close of trial, and again at the end of trial, Ameritech renewed its motion for judgment as a matter of law. Ameri-tech argued that the evidence presented by the EEOC did not establish a hostile working environment or liability on the part of Ameritech, and further contended that the evidence failed to show damages in connection with Everts’s claim. The district court denied both of these motions and the case went to the jury. The jury returned a verdict for the EEOC in the following amounts: $10,000 in compensatory damages and $500,000 in punitive damages on Wentland’s claim; $0 in compensatory damages and $50,000 in punitive damages on Everts’s claim; and $5,000 in compensatory damages and $500,000 in punitive damages on Pollard’s claim. Ameritech immediately moved for judgment notwithstanding the verdict and remittitur and the district court took both of these motions under advisement. On October 3, 1997, the district' court entered judgment in favor of the Commission. The court ordered that damages be paid to the claimants in the following amounts: $10,000 in compensatory damages and $290,000 in punitive damages to Wentland; $0 in compensatory damages and $0 in punitive damages to Everts; and $5,000 in compensatory damages and $295,000 in punitive damages to Pollard. The court then denied a motion by the Commission to amend the judgment, and denied Ameritech’s motions for judgment notwithstanding the verdict, new trial, and remittitur beyond the reduction in damages reflected in the court’s order. Ameri-tech filed a notice of appeal with this Court, and the Commission cross-appealed. The two appeals were consolidated for argument. On October 27, 1998, the district court issued an order indicating it was inclined to grant the Commission’s motion to reconsider the issue of Everts’s damages. The case was then remanded to the district court for modification of final judgment. Upon remand, the district court reinstated the jury’s verdict awarding $50,-000 in punitive damages to Everts. Ameri-tech now appeals from the district court’s amended judgment of December 22, 1998. II. Analysis A. We review the district court’s denial of Ameritech’s motions for judgment as a matter of law de novo. See Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 629 (7th Cir.1996). Our review is limited to “whether all evidence presented, ‘combined with all reasonable inferences that may be drawn from it, is sufficient to support the verdict when viewed in the light most favorable to the party winning the verdict.’ ” Hennessy v. Pemril Data-comm Networks, Inc., 69 F.3d 1344, 1354 (7th Cir.1995) (quoting Mathewson v. National Automatic Tool Corp., 807 F.2d 87, 90 (7th Cir.1986)). As to punitive damages, we ask only if “a reasonable jury could have awarded punitive damages against [Ameritech].” Tincher v. Wal-Mart Stores, Inc., 118 F.3d 1125, 1132 (7th Cir.1997). Ameritech first contends that the district court erred in denying its motion for judgment as a matter of law as to the issue of punitive damages because the evidence presented at trial did not support a punitive damages award. Punitive damages “require more than ... ‘intentional unlawful discrimination.’ ” Tincher, 118 F.3d at 1133 (quoting Emmel, 95 F.3d at 636). The EEOC must also “prove that the defendant employer engaged in the discriminatory practice ‘with malice or reckless indifference to the federally protected rights of the employee.’ ” Emmel, 95 F.3d at 636 (quoting 42 U.S.C. § 1981a(b)(l)). A showing of “malice or reckless indifference” under 42 U.S.C. § 1981a requires proof “that the defendant almost certainly knew that what he was doing was wrongful and subject to punishment.” Soderbeck v. Burnett County, Wis., 752 F.2d 285, 291 (7th Cir.1985). In evaluating Ameritech’s insufficiency of the evidence claim as to punitive damages, we must consider the evidence in light of the entire record to determine whether a reasonable jury could have determined that Ameritech acted with “malice or reckless indifference” to the claimants’ Title VII rights. See Emmel, 95 F.3d at 636. When examined against the backdrop of Amos’s past history, it is apparent that a reasonable jury could have concluded that Ameritech acted with “malice or reckless indifference.” In this regard, it is significant that by November 21, 1991, Ameritech had accumulated a history of complaints against Amos going back to 1975. Ameritech had received at least eleven complaints against Amos indicating a pattern and history of misconduct directed at women. These complaints, and Ameritech’s disciplinary actions in response, indicate that as of November 21, 1991, Ameritech was on notice of Amos’s recurring problems with female co-workers. See Jonasson v. Lutheran Child & Fam. Serv., 115 F.3d 436, 439 (7th Cir.1997) (stating that although incidents prior to November 21, 1991 cannot serve as a basis for employer liability, they may be used to provide the jury a context for evaluating the reasonableness of the employer’s response). Despite its knowledge of Amos’s misconduct and the futility of its prior disciplinary efforts, Ameritech continued to allow Amos to work in the small business office where ninety percent of the employees were female. Even after the company learned in February 1992 that Amos had sexually harassed Jennifer Rice, the company issued another warning to Amos and refused his request to be transferred out of the small business office. Furthermore, after Wentland complained to Ameritech about Amos’s conduct and a subsequent investigation found that Amos sexually harassed Wentland, Ameritech did not discharge Amos within the thirty-day limit for disciplinary action imposed by the collective bargaining agreement. In addition, Ameritech concluded that Everts’s EEOC charge had no merit and thereby failed to act on it, and repeatedly refused to discipline Amos on other occasions. This Court has previously held that the failure of an employer to act to remedy an employee’s misconduct, when coupled with the employer’s knowledge of that conduct, can be sufficient to justify an award of punitive damages. See Jonas son, 115 F.3d at 438. While the evidence in this case may not compel the conclusion that Ameri-tech acted with “malice or reckless indifference” to the claimants’ Title VII rights, it certainly provides a sufficient basis for a reasonable jury to find in favor of the Commission. In addition to its claim as to the insufficiency of the evidence on punitive damages, Ameritech also contends that the evidence presented by the EEOC was insufficient to support a conclusion that Ameritech was negligent, or that the claimants suffered a hostile work environment. However, given our conclusion that the record supports an award of punitive damages against Ameritech, we find the company’s additional insufficiency of the evidence arguments to lack merit. First, any question as to the sufficiency of the evidence on negligence, and consequently as to Ameritech’s liability, see Perry v. Harris Chemin, Inc., 126 F.3d 1010, 1013 (7th Cir.1997) (“[E]mployers are liable only when they have been negligent either in discovering or remedying the harassment.”), is necessarily answered by our discussion of punitive damages. “Malice or reckless indifference” establishes a higher standard than negligence, so evidence supporting the former supports the latter. Similarly, we conclude that the evidence in this case was sufficient to establish the existence of a hostile work environment. All of the claimants experienced various incidents with Amos involving suggestive comments, inappropriate touching, or indecent exposure. Furthermore, all of the claimants testified that they were disturbed by this conduct. There is no question that the evidence presented by the EEOC was enough to establish a hostile work environment from both an objective and a subjective perspective, see id., and that the evidence presented was sufficient to justify an award of both compensatory and punitive damages. B. With regard to Ameritech’s evidentiary challenges, we review the rulings of the district court for an abuse of discretion. See Buckner v. Sam’s Club, Inc., 75 F.3d 290, 292 (7th Cir.1996). “[T]he relevant inquiry is not how the reviewing judges would have ruled if they had been considering the case in the first place, but rather whether any reasonable person could agree with the district court.” Geitz v. Lindsey, 893 F.2d 148, 150 (7th Cir. 1990). If we determine that the district court has abused its discretion in making an evidentiary ruling, we nonetheless affirm the district court if the erroneous ruling is determined to be harmless. See Holmes v. Elgin, Joliet & E. Ry. Co., 18 F.3d 1393,1397 (7th Cir.1994). Ameritech challenges the district court’s decision to exclude evidence regarding Ameritech’s obligations under its collective bargaining agreement and the effect those obligations had on the timing of Amos’s dismissal. The district court held that such evidence was “not relevant to a determination of the reasonableness of an employer’s response to sexual harassment in the workplace.” According to Ameritech, the district court’s ruling in this regard was erroneous as a matter of law. The reasonableness of Ameritech’s response should be determined according to whether it was “ ‘reasonably calculated to prevent further harassment under the particular facts and circumstances of the case at the time the allegations were made.’ ” McKenzie v. Illinois Dep’t of Trans., 92 F.3d 473, 480 (7th Cir.1996) (quoting Brooms v. Regal Tube Co., 881 F.2d 412, 421 (7th Cir.1989)). Ameritech contends that its obligations under its collective bargaining agreement were part of the facts and circumstances that informed Ameri-tech’s judgment as to Amos’s discipline, and as such they are relevant to a jury’s determination of the reasonableness of its response. Ameritech also argues that the exclusion of the arbitration evidence was erroneous in light of the punitive damages instruction given to the jury, and the large punitive damages awards that were returned. As has been previously discussed, in order to receive an award of punitive damages the EEOC must show that Ameritech acted with “malice or reckless indifference” to the claimants’ Title VII rights. Emmel, 95 F.3d at 636. According to Ameritech, it acted not out of “malice or reckless indifference,” but rather out of concern for its obligations under the collective bargaining agreement and its fear that Amos would be reinstated by an arbitrator if he were fired. By excluding evidence of the collective bargaining agreement and the possibility of reinstatement, the district court precluded Ameritech from presenting what Ameritech contends was important evidence that would go toward proving it did not act with the state of mind necessary for the imposition of punitive damages. In evaluating the .district court’s decision excluding evidence of the collective bargaining agreement and the potential outcome of arbitration proceedings, we must first determine what the district court meant when it stated that the evidence in question was irrelevant. As we understand it, the district court was not considering the question as a matter of logical relevance; the district court did not mean that this evidence was not useful in assessing the probability that Ameritech acted with “malice or reckless indifference.” Fed.R.Civ.P. 401. Nor did the district court indicate that “the probative value [of the evidence was] substantially outweighed” by other considerations. Fed. R.Civ.P. 403. Rather, the district court stated that “an employer is subjected to separate duties under a positive law, such as Title VII, and under afcollective bargaining agreement],” and when those duties conflict “the positive law controls.” In essence, the district court held that as a matter of law, Ameritech’s obligations under the collective bargaining agreement and its fears as to the possible outcome of arbitration could not be introduced in the face of conflicting duties under Title VII. To the extent the district court’s ruling reflects the idea that Title VII always trumps the provisions of a collective bargaining agreement, that ruling is erroneous as a matter of law. While it is true that employers cannot use collective bargaining agreements to contract around anti-discrimination laws like Title VII, see Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 79, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) (“[A] collective-bargaining contract ... may [not] be employed to violate the statute.”), that principle is not applicable to this case. The EEOC does not allege that Ameritech negotiated for the thirty-day limit on disciplinary action in order to avoid Title VII obligations, nor is there any evidence in the record to that effect. Furthermore, this is not a situation where Ameritech is seeking to use its obligations under the collective bargaining agreement as an affirmative defense precluding liability under Title VII. Rather, Ameritech seeks only to introduce evidence as to its collective bargaining agreement, and its concern over the possible outcome of arbitration, to demonstrate that it did not act with the state of mind necessary for an award of punitive damages and to show that its response to Amos’s misconduct was reasonable. See Deneen v. Northwest Airlines, Inc., 132 F.3d 431 (8th Cir.1998) (holding that proof of discrimination offered by the plaintiff was insufficient to support a punitive damages award in light of the employer’s belief that its actions were required by a collective bargaining agreement). In this context, the district court erred in finding that evidence of Ameritech’s collective bargaining agreement was irrelevant as a matter of law. The relationship between an employer’s obligations under its collective bargaining agreement and potentially conflicting obligations under an anti-discrimination statute like Title VII is more complex than the district court’s decision indicates. Title VII and collective bargaining agreements each represent important congressional policies: preventing discrimination in the workplace, and “effecting workable and enforceable agreements between management and labor,” Trans World Airlines, 432 U.S. at 79, 97 5.Ct. 2264. Given the important national policies underlying both Title VII and collective bargaining agreements, it is incorrect to hold, as the district court did, that obligations under Title VII always trump obligations that exist under valid labor agreements. See id. (holding that an agreed-upon seniority system did not “give way” to an employer’s duty to “reasonably accommodate” religious observance under Title VII); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1051 (7th Cir.1996) (holding that a collectively-bargained seniority system was not trumped by the duty to “reasonably accommodate” the disabled under the Americans With Disabilities Act). Because the district court based its decision to exclude the disputed evidence on an error of law, that decision constitutes an abuse of discretion. See Waid v. Merrill Area Pub. Sch., 130 F.3d 1268, 1273 (7th Cir.1997). While the EEOC concedes that the district court may have been mistaken about the legal relationship between collective bargaining agreements and Title VII, it contends that any such mistake was harmless. We disagree. Although the EEOC correctly points out that Ameritech was able to present evidence as to the thirty-day limit on disciplinary action under the collective bargaining agreement, Ameritech employees were prevented from testifying about the facts and circumstances surrounding the timing of their decision to terminate Amos. Ameritech was also precluded from presenting evidence that it failed to discharge Amos after the Wentland incident because of concerns about violating the collective bargaining agreement. Furthermore, Ameritech could not present evidence as to the likely outcome of arbitration, and its decisionmakers’ fears that Amos would be reinstated were he to be discharged in violation of the collective bargaining agreement. As we have previously noted, this was potentially significant evidence as to Ameritech’s state of mind and to the reasonableness of Ameritech’s actions, and we cannot say that the outcome of the trial would have been the same had the jury been permitted to hear this evidence. See United States v. Stefonek, 179 F.3d 1030, 1036 (7th Cir.1999) (“A ‘harmless error’ as the term is used in law is a trial error that does not alter the trial’s outcome.”); Collins v. Kibort, 143 F.3d 331, 339 (7th Cir.1998) (stating that an error is not harmless when “a significant chance exists” that the error “affected the out come of the trial”).

624354-23679

MEMORANDUM AND ORDER JOYNER, District Judge. This civil action has been brought before the Court again by the Commonwealth of Pennsylvania, Department of Transportation (“PennDot”) and its three employees, Stephen Madrak, Michael Kistler and Rebecca Bickley, all of whom Plaintiff sued in their individual and official capacities. Specifically, PennDot, Madrak, Kistler and Bickley seek to dismiss the Amended Complaint against them with prejudice for failure to state a claim upon which relief may be granted and for want of sufficient subject matter jurisdiction. For the reasons set forth below, PennDot’s motion shall be granted in its entirety and the motion of the individual defendants granted in part. History of the Case As previously noted in our Memorandum and Order of October 8, 1999 disposing of the motion to dismiss of defendant Motorcycle Safety Foundation, Plaintiffs claims emanate from a written contract between PennDot and the Motorcycle Safety Foundation (“MSF”), a private corporation. Under that contract, MSF was to take over the implementation and oversight of a Motorcycle Safety Program for PennDot from Millersville University. Plaintiff Halstead contends that as part of the bid which MSF submitted to obtain the PennDot contract, his name, personal qualifications and resume were used in that MSF represented that Plaintiffs qualifications would be the minimum qualification for the position of State Coordinator and that the position of State Coordinator would be offered to him first. The position would only be offered to another candidate if the plaintiff refused to accept the job offer. According to the Amended Complaint, despite these representations, MSF did not offer Plaintiff the position of State Coordinator for the Motorcycle Safety Program ostensibly because of an interview which he gave to a publication known as the Citizen’s Voice on August 13, 1998 and because he informed Defendants that MSF’s Proposal Project Director, Roberta Carlson, the former State Coordinator for the Pennsylvania Motorcycle Safety Program when it was being overseen by Mil-lersville University, was inappropriately using insider information gathered while she was a Millersville employee for the benefit of MSF. Plaintiff thereafter instituted this suit seeking damages for breach of contract, invasion of privacy, defamation, tortious interference with third party and prospective contractual relations, punitive damages and for violations of his civil rights under 42 U.S.C. § 1983 and the Pennsylvania Whistleblower Law, 43 P.S. § 1421, et. seq. Through these motions, PennDot, Madrak, Kistler and Bickley seek to dismiss the Amended Complaint against them in its entirety, with prejudice. Standards Governing Motions to Dismiss The rules governing the pleading of cases in the district courts are clear. Under Fed.R.Civ.P. 8(a), “A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.” It is equally clear that the issue of the sufficiency of a pleading may be raised by the filing of a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) or through a motion for a more definite statement under Rule 12(e). In resolving a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir.1990). In so doing, the court must accept as true the facts alleged in the complaint, together with all reasonable inferences that can be drawn therefrom and construe them in the light most favorable to the plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir.1990); Hough/Loew Associates, Inc. v. CLX Realty Co., 760 F.Supp. 1141 (E.D.Pa.1991). The court’s inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a) and whether the plaintiff has a right to any relief based upon the facts pled. Dismissal under Rule 12(b)(6) for failure to state a claim is therefore limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved. Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir.1988); Angelastro v. Pru dential-Bache Securities, Inc., 764 F.2d 939, 944 (3rd Cir.1985), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985). Subject matter jurisdiction, on the other hand, may be challenged by filing a motion pursuant to Fed.R.Civ.P. 12(b)(1). A district court can grant a Rule 12(b)(1) motion based on the legal insufficiency of the claim but dismissal is proper only when the claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial or frivolous. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3rd Cir.1991). See Also: Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 776, 39 L.Ed.2d 73 (1974). Unlike a motion to dismiss for failure to state a claim under Rule 12(b)(6) where the plaintiff is entitled to have all reasonable inferences drawn in his favor, when jurisdiction is challenged under Rule 12(b)(1), the burden is on the plaintiff to prove that jurisdiction exists and the courts are not limited in their review to the allegations of the complaint. Doe v. William Shapiro, Esquire, P.C., 852 F.Supp. 1246, 1249 (E.D.Pa.1994). Similarly, any evidence may be reviewed and any factual disputes resolved regarding the allegations giving rise to jurisdiction, since it is for the Court to resolve all factual disputes involving the existence of jurisdiction. Sitkoff v. BMW of North America, Inc., 846 F.Supp. 380, 383 (E.D.Pa.1994). In contrast, if the attack to jurisdiction is facial, that is, to the allegations of jurisdiction stated in the complaint, the factual allegations of the complaint are presumed to be true and the complaint is reviewed to ensure that each element necessary for jurisdiction is present. Id. If jurisdiction is based on a federal question, the pleader claiming federal jurisdiction must show that the federal claim is not frivolous. Radeschi v. Commonwealth of Pennsylvania, 846 F.Supp. 416, 419 (W.D.Pa.1993), citing Bartholomew v. Librandi, 737 F.Supp. 22 (E.D.Pa.), aff'd, 919 F.2d 133 (3rd Cir.1990). Only if it appears to a certainty that the pleader will not be able to assert a colorable claim of subject matter jurisdiction may the complaint be dismissed. Kronmuller v. West End Fire Co. No. 3, 123 F.R.D. 170, 172 (E.D.Pa.1988). See. Also: Mortensen v. First Federal Savings and Loan Ass’n., 549 F.2d 884, 891 (3rd Cir.1977). Discussion A. Eleventh Amendment Immunity. Defendants first argue that this Court lacks subject matter jurisdiction over Plaintiffs claims against them by virtue of the Eleventh Amendment to the U.S. Constitution. That Amendment states that: The Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against any one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. The Amendment has been interpreted to protect an “unconsenting state from suit in federal court by its own citizens as well as those of another state.” Blanciak, 77 F.3d at 694, quoting Pennhurst State School v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907-908, 79 L.Ed.2d 67 (1984). The burden of proving entitlement to Eleventh Amendment immunity falls upon the party asserting it. Christy v. Pennsylvania Turnpike Commission, 54 F.3d 1140, 1144 (3rd Cir.1995). There are, however, certain well-established exceptions to the reach of the Eleventh Amendment. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). If a state waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action. Blanciak, 77 F.3d at 694, citing, Atascadero, 473 U.S. at 234, 105 S.Ct. at 3142 and Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 883, 27 L.Ed. 780 (1883). Alternatively, in appropriate circumstances and with respect to the rights guaranteed under the Fourteenth Amendment, Congress has the power to abrogate a state’s Eleventh Amendment immunity. Pennhurst, 465 U.S. at 99, 104 S.Ct. at 907; Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360-61, 39 L.Ed.2d 662 (1974). For either of these exceptions to apply, however, there must be an unequivocal expression of either a state’s consent or of the congressional intent to overturn the constitutionally guaranteed immunity of the several States. Pennhurst, 465 U.S. at 100, 104 S.Ct. at 907, citing, Edelman, 415 U.S. at 673, 94 S.Ct. at 1360-61 and Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. Blanciak, 77 F.3d at 694, citing United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). Hence, a general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 56, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996). In this case, plaintiff invokes 42 U.S.C. § 1983, which 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 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, suit in equity, or other proper proceeding for redress ... In analyzing this statute in an effort to determine whether a cause of action under it may lie against a State, the Supreme Court has repeatedly concluded that while municipal corporations and similar governmental entities are “persons” subject to suit, a State is not a “person” within the meaning of § 1983. See: Howlett v. Rose, 496 U.S. 356, 377, 110 S.Ct. 2430, 2443, 110 L.Ed.2d 332 (1990); Will v. Michigan Department of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989); Quern v. Jordan, 440 U.S. 332, 343-344, 99 S.Ct. 1139, 1146-1147, 59 L.Ed.2d 358 (1979); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). There thus being no Congressional abrogation of the States’ Eleventh Amendment immunity in Section 1983, we look next to Pennsylvania state law to see if the Com monwealth has voluntarily waived this immunity. In so doing, we find that 42 Pa.C.S. § 8521 answers this question in the negative. Specifically, that Statute states: § 8521. Sovereign immunity generally (a) General rule. — Except as otherwise provided in this subchapter, no provision of this title shall constitute a waiver of sovereign immunity for the purpose of 1 Pa.C.S. § 2310 (relating to sovereign immunity reaffirmed; specific waiver) or otherwise. (b) Federal courts. — Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States. As this statute makes clear, Pennsylvania has explicitly reserved its right to immunity from suit in federal court and we therefore conclude that PennDot and its three employees acting in their official'capacities are immune from the plaintiffs § 1983 claims. See: Fitzpatrick v. Pennsylvania Department of Transportation, 40 F.Supp.2d 631, 634 (E.D.Pa.1999). Count V of the Amended Complaint shall be dismissed with prejudice. B. Plaintiffs State Law Claims Against PennDot. There is a distinction between sovereign immunity under the Eleventh Amendment and sovereign immunity with respect to state law claims. The Commonwealth of Pennsylvania has enacted a statute specifically preserving its -sovereign immunity subject to certain statutorily enumerated exceptions. Indeed, under 1 Pa.C.S. § 2310, ... it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. When the General Assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in such manner and in such courts and in such cases as directed by the provisions of Title 42 (relating to judiciary and judicial procedure) or 62 (relating to procurement) unless otherwise specifically authorized by statute. As regards Commonwealth parties such as PennDot , the ■ General Assembly has specifically waived its immunity from suit with respect to actions in nine distinct categories “for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person having available the defense of sovereign immunity.” 42 Pa.C.S. § 8522(a). Specifically, the categories for which immunity has been waived are: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other danger ous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa.C.S. § 8522(b)(1) — (9). Plaintiff here is advancing claims under state law against the Department of Transportation for defamation, tortious interference with third party and prospective contractual relations and for violation of the Pennsylvania Whistleblower Law, 43 P.S. § 1421, et seq. None of these claims, of course, involve negligence or fall within the menu of claims for which sovereign immunity has been waived under Section 8522(b) and we therefore shall dismiss Counts V and VI with prejudice. We reach the same conclusion as to Plaintiffs Whistleblower Law claim, although for a slightly different reason. It is clear that the Whistleblower Law applies only to public employees who are discharged or otherwise discriminated or retaliated against by governmental entities. See: Clark v. Modern Group, Ltd., 9 F.3d 321, 326, n. 4 (3rd Cir.1993); Holewinski v. Children’s Hospital of Pittsburgh, 437 Pa.Super. 174, 649 A.2d 712, 715 (1994); Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 622 A.2d 355, 359-360 (1993). Specifically, Section 1423 of the Pennsylvania Whistleblower Law provides: (a) Persons not to be discharged.— No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste. (b) Discrimination prohibited.— No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee is requested by an appropriate authority to participate in an investigation, hearing or inquiry held by an appropriate authority or in a court action. Under the Definitions portion of the statute, 43 P.S. § 1422, “employee” is defined as “[a] person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied, for a public body.” “Employer,” in turn, is “[a] person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body.” A “public body” is defined to include all of the following: (1) A state officer, agency, department, division, bureau, board, commission, council, authority or other body in the executive branch of State government. (2) A county, city, township, regional governing body, council, school district, special district or municipal corporation, or a board, department, commission, council or agency. (3) Any other body which is created by Commonwealth or political subdivision authority or which is funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body. The language “funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body” has been held to have been intended by the legislature to be limited to monies which were appropriated by the legislature for the purpose of aiding “public bodies” in pursuit of their public goals and was obviously not intended to make an individual or corporation a “public body” solely on the basis that monies were received by it from the state as reimbursement for services rendered. Cohen v. Salick Health Care, Inc., 772 F.Supp. 1521, 1527 (E.D.Pa.1991); Riggio v. Burns, — Pa.Super. -, 711 A.2d 497 (1998), appeal granted, — Pa.-, 739 A.2d 167 (1998). Thus, it is clear that the Pennsyl vania legislature effectively abrogated the Commonwealth’s sovereign immunity when it enacted the Whistleblower Law and PennDot is therefore not immune from Whistleblower Act claims. Nevertheless, we find the plaintiffs Amended Complaint insufficient to state a Whistleblower cause of action against the Department of Transportation given Mr. Halstead’s failure to allege that he was ever an employee of either MSF or PennDot. Rather, in Count XI of the Amended Complaint, Mr. Halstead contends that he was an employee of the Pennsylvania Motorcycle Safety Program then being run by Millersville University. In the absence of an employment relationship, no cause of action can lie here as between the plaintiff and the Department of Transportation. Accordingly, the Defendant’s motion to dismiss shall be granted with respect to Count XI as well. Plaintiffs final claim against PennDot is lodged in Count XII and is for punitive damages. In Pennsylvania, punitive damages are an element of damages arising out of an initial cause of action for compensatory damages. Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 802 (1989), citing Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1959). Hence, if no underlying cause of action exists, there is no independent action for a claim for punitive damages. Id. Moreover, under 42 Pa. C.S. § 8528(c), damages from Commonwealth entities are recoverable only for past and future loss of earnings and earning capacity, pain and suffering, medical and dental expenses, loss of consortium and property losses. In view of this limitation and our determination that all of the plaintiffs compensatory damages claims against PennDot are properly dismissed, his claim for punitives must fall as well. See Also: Feingold v. Southeastern Pennsylvania Transportation Authority, 339 Pa.Super. 15, 488 A.2d 284, aff'd, 512 Pa. 567, 517 A.2d 1270 (1986). Count XII is likewise dismissed with respect to the Department of Transportation. C. Plaintiffs Claims Against Stephen Madrak, Rebecca Bickley and Michael Kistler. The Eleventh Amendment does not bar § 1983 personal capacity suits against state officials in federal court. Hafer v. Melo, 502 U.S. at 22, 112 S.Ct. at 360. We therefore next consider whether Plaintiffs claims under Section 1983 against PennDot employees Madrak, Kistler and Bickley in their personal capacities may go forward. The courts have repeatedly held that the purpose of § 1983 is to provide a civil cause of action to protect persons against the misuse of power possessed by virtue of state law and made possible because the defendant was cloaked with the authority of the state. Del Signore v. McKeesport, 680 F.Supp. 200, 203 (W.D.Pa.1988). See Also: West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988). Section 1983 does not create a cause of action in and of itself; rather it provides redress for certain violations of rights arising under the federal constitution or laws of the United States which are caused by persons acting under color of state law. Lee v. Gateway Institute & Clinic, Inc., 732 F.Supp. 572, 575 (W.D.Pa.1989), citing Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). To make out a claim under § 1983, a plaintiff must demonstrate that the conduct of which he is complaining has been committed under color of state or territorial law and that it operated to deny him a right or rights secured by the Constitution or laws of the United States. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Abdul-Akbar v. Watson, 901 F.2d 329, 332 (3rd Cir.1990), cert. denied, 498 U.S. 806, 111 S.Ct. 237, 112 L.Ed.2d 196 (1990). Naturally, the plaintiff must also show that it was the defendant who subjected him to this deprivation of his rights or caused him to be subjected to the deprivation. Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); Signore, supra, 680 F.Supp. at 203. See Also: Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976); Duchesne v. Sugarman, 566 F.2d 817, 831 (2nd Cir.1977). State officials, sued in their individual capacities are “persons” within the meaning of § 1983 and are not absolutely immune from personal liability thereunder solely by virtue of the “official” nature of their acts. Hafer v. Melo, 502 U.S. at 31, 112 S.Ct. at 365. Although a § 1983 complaint is not held to a heightened pleading standard, to withstand a motion to dismiss it must still satisfy the requirements of Fed. R.Civ.P. 8(a) of “a short and plain statement of the claim that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993); Frederick v. Southeastern Pennsylvania Transportation Authority, 892 F.Supp. 122, 125 (E.D.Pa.1995). The complaint should therefore state facts such as the time and place of the deprivation and the persons responsible so as to both show the elements of the cause of action and to provide defendants with adequate notice to frame an answer. Youse v. Carlucci, 867 F.Supp. 317, 319 (E.D.Pa.1994), citing Frazier v. SEPTA 785 F.2d 65, 67 (3rd Cir.1986) and Rode v. Dellarciprete, 845 F.2d 1195, 1207-1208 (3rd Cir.1988). See Also: Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 1596-97, 140 L.Ed.2d 759 (1998); Agresta v. Goode, 797 F.Supp. 399 (E.D.Pa.1992).

3993853-5575

PER CURIAM: Spencer Preston appeals the revocation of his term of supervised release, 18 U.S.C. § 3588(e)(3). On appeal, he argues that the district court abused its discretion in finding that he had violated the conditions of his supervised release. For the reasons set forth below, we affirm the district court’s revocation of Preston’s term of supervised release. I. In 2009, Preston pleaded guilty to maintaining a place for the purpose of manufacturing and distributing crack cocaine, in violation of 21 U.S.C. § 856(a)(1), and possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to a total term of imprisonment of 16 months, a total term of supervised release of 2 years, and a fine of $7,500.00. The conditions of supervised release specified that Preston was not to commit another crime, “unlawfully possess a controlled substance,” or distribute a controlled substance. In 2011, Preston’s probation officer filed a petition recommending that Preston’s supervision be revoked because Preston had violated two Florida criminal statutes. Specifically, he had committed the offenses of: (1) trafficking in Roxicodone, a controlled substance; and (2) possessing cocaine with the intent to sell. The magistrate judge held a hearing on the petition, at which William Jaques testified that he was a narcotics detective with the Martin County Sheriffs Office. Ja-ques had learned, from another detective, that an informant had stated that an individual would be driving a black pick-up truck on Palmetto Drive in Jensen Beach, the truck would leave a house at a specific time, and there would be crack cocaine and approximately 16 pills in the bed of the truck. Jaques and other officers conducted surveillance of the house on August 25, 2011, and Jaques saw a black truck pull away from the house at the time the informant had specified. He had not seen Preston or anyone else place anything in the truck bed. Jaques performed a traffic stop and asked Preston to step out of the truck. Jaques searched the truck and noticed a rain gutter in the truck bed. After looking at the gutter a few times, Jaques eventually found a brown paper bag inside the gutter. Inside the bag were 66 Roxi-codone pills, approximately 3.5 grams of hard cocaine, and a small bag of powder cocaine. The Roxicodone pills were in a prescription bottle with no label, and Preston did not have a prescription for the pills with him at the time. A number of items were tested for fingerprints, and no fingerprints were found on any of the tested items. Jaques believed that the truck was registered to Preston Enterprises. Preston argued that the government had proved that there were narcotics in the truck, but not that Preston had put the drugs there or knew that they were there. The lack of fingerprints on the items submitted for testing indicated that Preston did not know the drugs were in the truck. Additionally, the informant had not identified Preston when providing information to the officers. The magistrate stated that the government had not shown a violation of the conditions of supervised release beyond a reasonable doubt, but it had met its bur den of establishing a violation based on the preponderance of the evidence standard. Although the government’s case was weak as to Preston’s knowledge of the narcotics, the informant had reliably informed the officers as to what drugs would be found and where they would be found. The magistrate could not speculate that someone else had planted the drugs in the truck. In a report and recommendation, the magistrate reiterated his finding that the government had met its burden of proof, but only barely. In support of his finding that the government had shown that the violations had occurred, the magistrate discussed the information provided by the informant, observing that the statements regarding the type of vehicle, types of drugs, and the location of the drugs was accurate. Thus, the magistrate recommended that the district court find that Preston had committed both violations. Preston objected to the report and recommendation, arguing that the government had not met its burden of proof because there was no evidence that Preston knew that there were drugs in the bed of the truck. The informant had not identified Preston, and the drugs were so well hidden that the officers did not find them when they first searched the rain gutter. Preston was never seen in contact with the items in the bed of the truck, and his fingerprints were not found on the items in the truck bed. At the sentencing hearing, Preston reiterated his argument regarding his lack of knowledge of the drugs in the truck. He also noted that, although the truck was registered to his company, he was not the only person who used the truck. The district court found by a preponderance of the evidence that Preston had committed the violations. The court noted that the informant’s statements were double hearsay, and the court normally would not give such statements significant weight. Here, however, the statements regarding the description of the truck, the time the truck left the house, and what drugs were in the truck turned out to be accurate. Preston, moreover, was operating the truck containing the narcotics. Additionally, there was no testimony contradicting the above facts. Thus, the court adopted the report and recommendation and revoked Preston’s supervised release. The court then sentenced Preston to ten months’ imprisonment and two years’ supervised release. II.

123200-19984

ORDER GRANTING PARTIAL SUMMARY JUDGMENT BRIMMER, Chief Judge. THIS MATTER came before the Court on defendants’ motions for summary judgment pursuant to Fed.R.Civ.P. 56(b). The Court, having heard the arguments of counsel, having reviewed the pleadings, and being fully advised in the premises, FINDS and ORDERS as follows: This action resulted from the plaintiff’s arrest on a traffic violation and incarceration for twenty-seven days without an initial appearance. At the time of his arrest, the plaintiff’s car was impounded by the police and towed to a private storage lot. There the car was broken into and many of the plaintiff’s belongings were stolen. The towing company later foreclosed on a storage lien and possessed the plaintiff’s car. The plaintiff, Alexander Katona, asserts four claims for relief. He alleges that he was deprived of liberty without due process of law by being held in custody for an extended period of time without a hearing by a magistrate; that the City of Cheyenne’s ordinance requiring nonresidents to post a bond for traffic offenses denies equal protection and violates the right to interstate travel guaranteed by the privileges and immunities clause; that he was deprived of property without due process of law; and that the defendants breached their duty of care by failing to safeguard his property. The defendants, the City of Cheyenne, Wyoming (the “City”) and Pat’s Towing, now move for summary judgment. 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.” Fed.R.Civ.P. 56(c). Factual issues are material where the evidence and reasonable inferences therefrom might lead a jury to find for the resisting party. Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir.1987) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The facts underlying the allegations are as follows: At the time of his arrest, Mr. Katona was indigent and lived in his car. He drove from Fort Collins, Colorado to Cheyenne, Wyoming on December 3, 1986 to obtain medical treatment at the Veterans Administration Hospital in Cheyenne. That evening a Cheyenne police officer, Officer Ray Pennock, stopped Mr. Katona and cited him for careless driving and for driving with an expired license. Because Mr. Katona was a nonresident, the officer, pursuant to city policy, demanded a cash appearance bond. Mr. Katona was unable to post a $35.00 bond and was arrested. Officer Pennock decided to have Mr. Katona’s car towed away. Factual disputes emerge at this point. Officer Pennock contends that he decided to have the car towed because there were no public parking places where the automobile could be left safely. He could not allow Mr. Katona to move the car without a valid driver’s license. The officer did not want to move the car himself and thus leave Mr. Katona unattended in the police cruiser. Mr. Katona contends that two officers were on the scene and that his car could have been moved to some other location in the area. In either event, it is undisputed that, pursuant to City ordinances, a police dispatcher called a towing company to the scene and that Pat’s Towing eventually towed the plaintiff’s car to a storage lot. Mr. Katona was not told where his car was taken or how he could retrieve it. Mr. Katona was taken to the Laramie County jail and was processed by 8:00 P.M. on December 3, 1986. Municipal court practice is to conduct initial appearances only on Monday, Wednesday and Friday. Mr. Katona was told that his initial appearance and arraignment would be conducted on December 5, 1986 at 1:30 P.M. A criminal complaint was sworn. The complaint was reviewed the next day by the municipal court commissioner, who issued an arrest warrant without consulting a judge or a magistrate. After being jailed for nearly 42 hours, Mr. Katona was taken to his initial appearance on December 5, 1986. Officer Roger Lawson transported Mr. Katona and two other prisoners to the municipal court. The prisoners were handcuffed together. Outside the building, Mr. Katona asked what would happen if he tried to escape. Officer Lawson said he would shoot Mr. Katona. What happened next is disputed. Mr. Katona claims that he “stuck his left foot out,” in a mock escape attempt. He claims that Officer Lawson then threw him against the police car and repeatedly hit him in the stomach. Officer Lawson contends that Mr. Katona actually tried to run, pulling two prisoners along with him. The officer claims that he tried to control Mr. Katona, who attempted to strike back. The officer hit Mr. Katona in the stomach and forced him and the other prisoners back into the patrol car. Officer Lawson returned the prisoners to the county jail. He left Mr. Katona in the jail and took the other prisoners to court for an initial appearance. The officer later drew up a complaint charging Mr. Katona with interfering with a police officer and with disturbing the peace. The municipal court judge reset Mr. Katona’s initial appearance for Monday, December 8, 1986, the next business day. On the morning of December 8, the jailers told Mr. Katona that his initial appearance was scheduled for 1:30 that afternoon. Mr. Katona showered. Stepping out of the shower, he was told that he had to appear in court immediately. Mr. Katona requested a coat for protection from the cold. The request was denied. Officer Lawson testified that there was no reason to deny the request other than that the jailers had not given Mr. Katona a coat. Mr. Katona refused to leave the jail without a coat. The municipal court judge entered a not guilty plea on Mr. Katona’s behalf, appointed an attorney to represent him, and scheduled a bench trial for January 15, 1987. Twenty-seven days after his arrest, Mr. Katona was released on his own recognizance on December 30, 1986. Mr. Katona was not given an initial appearance or arraigned during this time, nor was his arrest warrant reviewed by a magistrate. After a trial to the court, Mr. Katona was found guilty of all four charges against him. A fine and a jail sentence was imposed. Both were suspended. Mr. Katona contacted Pat’s Towing in February 1987. The company refused to release the car, because Mr. Katona did not have a valid driver’s license and was unable to pay the towing and storage fee. Mr. Katona returned with a lawyer on April 29 to retrieve his belongings and discovered that someone had broken into his car and stolen $2,500.00-$3,500.00 in clothing and other items. Pat’s Towing foreclosed on its storage lien on September 9, 1987, and purchased Mr. Katona’s car for $800.00, the cost of towing and storage. Pat’s Towing now has title to Mr. Katona’s automobile. The car has not been resold. This action commenced on December 3, 1987. To reiterate, Mr. Katona alleges that he was deprived of liberty and property without due process of law, that he was denied equal protection of the law, and that the defendants negligently failed to safeguard his property. 1. Deprivation of Liberty Mr. Katona’s first cause of action alleges that his incarceration for twenty-seven days without a hearing deprived him of liberty without due process of law. The Fourth Amendment requires a judicial determination of probable cause as a prerequisite to an extended restraint of liberty following arrest. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975). See also, Wyo.R.Crim.P.J.P.Ct. 5(a) (“An officer making an arrest ... without a warrant shall take the arrested person forthwith before the justice.”). Violations of this requirement are redressable under 42 U.S.C. Sec. 1983. Rex v. Teeples, 753 F.2d 840, 842 (10th Cir.1985). The undisputed facts show that Mr. Katona was jailed for twenty-seven days without a judicial determination of probable cause. Review by the court commissioner is insufficient. First, the commissioner is not a judicial officer. The Wyoming Rules of Criminal Procedure for Justice of the Peace and Municipal Courts define a justice as a “justice of the peace, and, in municipal courts, police justice.” Wyo.R.Crim.P.J.Ct. 1(b)(1). Second, the municipal court commissioner lacks authority to issue arrest warrants. Procedures for issuing arrest warrants are governed by rules adopted by the Supreme Court of Wyoming. Wyo.Stat. Sec. 7-8-103(b) (1977). Those rules require the signature of a justice on arrest warrants issued by justice of the peace courts. Wyo.R.Crim.P. J.Ct. 4(a), (b)(1). The municipal court commissioner is not a justice and hence an arrest warrant issued under his authority is a nullity. Third, there is no apparent constitutional or statutory basis for the office of municipal court commissioner. Exclusive power to establish and supervise lower state courts is vested in the legislature and the Supreme Court of Wyoming. Wyo. Constitution Art. V, Sections 1, 2. The office of municipal court commissioner, in contrast, is created by city ordinance. Code of Ordinances for the City of Cheyenne, Wyoming Section 15-7. Consequently, any probable cause determination made by the municipal court commissioner was infirm. Gerstein v. Pugh, 420 U.S. at 125, 95 S.Ct. at 868 (probable cause determination “must be made by a judicial officer.”). The City urges that Mr. Katona waived his rights by refusing to appear for an initial appearance and arraignment. This overlooks the substantial factual dispute concerning the reasons why Mr. Katona did not appear. A jury believing Mr. Katona’s version of the events could reasonably conclude that Mr. Katona failed to appear as a result of arbitrary police action. The argument also ignores the legal principle that an adversarial determination of probable cause is not constitutionally required. Gerstein v. Pugh, 420 U.S. at 123, 95 S.Ct. at 867. Mr. Katona’s presence was not constitutionally required to proceed with a probable cause hearing. Regardless of the method used to establish probable cause, the procedure adopted must provide a fair and reliable determination of probable cause “and this determination must be made by a judicial officer either before or promptly after arrest.” Gerstein v. Pugh, 420 U.S. at 125, 98 S.Ct. at 869. (Emphasis added). The City next urges that Mr. Katona waived his right to an arraignment by proceeding to trial on the charges against him. Even if this is correct, by waiving arraignment Mr. Katona did not necessarily waive the right to a pretrial finding of probable cause. Mr. Katona was unharmed, the City finally contends, by the failure to bring his case promptly before a judicial officer. The municipal judge entered not guilty pleas for Mr. Katona, appointed counsel to serve on his behalf, and set bond. This does not obviate the need for a probable cause determination. “The consequences of prolonged detention,” the United States Supreme Court observed, “may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships. Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty.” Gerstein v. Pugh, 420 U.S. at 114, 98 S.Ct. at 863 (citations omitted). Entering a plea of not guilty and setting a trial date does not alter the possibility that a prompt determination of probable cause favoring Mr. Katona might have eliminated the need for a trial. Issues of material fact remain for trial on this question. Further, the City failed to show that it is entitled to judgment as a matter of law. Its motion for summary judgment on Mr. Katona’s first cause of action must be denied. A different result obtains with respect to Pat’s Towing. The undisputed facts show that the towing company had no judicial role and that it played no part in depriving Mr. Katona of a prompt probable cause hearing. No connection thus exists between its conduct and the alleged deprivation of liberty without due process of law. Summary judgment in its favor is appropriate. 2. Equal Protection Violation Mr. Katona was jailed pursuant to a municipal policy requiring all nonresidents of Laramie County, Wyoming to post an appearance bond for traffic offenses. The policy applies equally to Wyoming residents who do not live in Laramie County as well as to residents of other states. Those who can establish residency in the County need not post a bond. Length of time is not determinative of residency. One merely must show bona fide residence in the County. Memorandum in Support of Defendant City of Cheyenne’s Motion for Summary Judgment, Ex. B. Mr. Katona challenges the validity of the policy, urging that: ... adopting a custom, policy or official usage of allowing only local residents to be released on their own recognizance pending trial for bailable misdemeanor offenses and applying that policy to justify the extended detention of Plaintiff (deprived) him of his constitutionally protected rights to equal protection under law based solely on his status as an indigent, and further (deprived) him of his constitutional privileges and immunities to freedom of interstate travel as a result of his status as a nonresident____ Complaint, para. 24. The legal theory asserted in this claim is unclear. A careful reading of the allegation reveals two basic claims. Mr. Katona appears to allege that the defendants violated the equal protection guarantees of the Fourteenth Amendment, first, by impermissibly distinguishing between residents and nonresidents, second, by impairing the right to interstate travel, and, third, by denying bail to indigents. The second claim arguably asserts a violation of the Privileges and Immunities Clause of Article IV, Section 2. Turning to the equal protection claims, the first question is whether or not the challenged policy disadvantages a suspect class or impinges upon a fundamental right. San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973). The right of interstate travel is a basic constitutional freedom. Memorial Hospital v. Maricopa County, 415 U.S. 250, 254-55, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306 (1974). Classifications penalizing the exercise of that right must be justified by a compelling state interest. Id. at 258, 94 S.Ct. at 1082. Not all residency requirements, however, violate the right to interstate travel. Shapiro v. Thompson, 394 U.S. 618, 638 n. 21, 89 S.Ct. 1322, 1333 n. 21, 22 L.Ed.2d 600 (1969). The essential question is whether the classification “penalizes indigents for exercising their right to migrate to and settle in (the) State.” Memorial Hospital v. Maricopa County, 415 U.S. at 261, 94 S.Ct. at 1084. The classification at issue in this case does not establish a durational residency requirement. Indigent persons must only establish that they are bona fide residents of Laramie County. Accordingly, the policy does not penalize indigents for migrating to and settling in Wyoming. Constitutional prohibitions against excessive bail are integral to a concept of ordered liberty and are binding upon the states under the Fourteenth Amendment. Meechaicum v. Fountain, 696 F.2d 790, 791 (10th Cir.1983) (per curiam). Excessive bail or denial of bail violates the Equal Protection Clause. Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir.1978) (en banc). In this case, Mr. Ratona had the option of posting a $35.00 bond to secure his release. He contends that bond was set too high and thus constituted excessive bail. Meechaicum v. Fountain, 696 F.2d at 791. Bail is excessive when set at an amount higher than necessary to ensure appearance at trial. Id. The validity of restrictions upon bail turns on whether the restrictions are “rational, reasonable, and nondiscriminatory.” Id. at 792. The $35.00 bond requirement in this case was reasonably required to secure Mr. Ratona’s appearance at trial. The hardship imposed on Mr. Ratona must be balanced against the “compelling interest in assuring the presence at trial of persons charged with crime.” Pugh v. Rainwater, 572 F.2d at 1056. The Court therefore concludes that the bond required from Mr. Ratona was reasonable. Mr. Ratona finally contends that the bond requirement invidiously discriminates against indigents. The Supreme Court has consistently refused to recognize indigency as a suspect class requiring strict scrutiny. San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. at 29, 93 S.Ct. at 1294; Maher v. Roe, 432 U.S. 464, 470-471, 97 S.Ct. 2376, 2380-81, 53 L.Ed.2d 484 (1977). Therefore, the question is whether the bond requirement rationally furthers a legitimate policy. San Antonio Indep. School v. Rodriguez, 411 U.S. at 17, 93 S.Ct. at 1288. The purpose of the bond requirement is to ensure that nonresidents pay their fines or appear at trial. The bond requirement rationally and reasonably furthers that purpose. The policy therefore does not constitute invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Nor does the policy violate the Privileges and Immunities Clause of Article IV, Section 2. First, Wyoming residents who do not live in Laramie County are treated in the same way as residents of other states. Moreover, the requirement is consistent with the policies embodied in the Clause. The Privileges and Immunities Clause of Article IV, Section 2 establishes a “norm of comity” guaranteeing equality of treatment thereby preventing States from imposing unreasonable burdens on citizens of other States. Austin v. New Hampshire, 420 U.S. 656, 660, 95 S.Ct. 1191, 1194, 43 L.Ed.2d 530 (1975); Baldwin v. Montana Fish and Game Comm’n, 436 U.S. 371, 383, 98 S.Ct. 1852, 1860, 56 L.Ed.2d 354 (1978). The Privileges and Immunities Clause, however, protects only “those ‘privileges’ and ‘immunities’ bearing upon the vitality of the Nation as a single entity.” Baldwin, 436 U.S. at 383, 98 S.Ct. at 1860. Nothing in the bond policy impedes interstate commerce, frustrates the exercise of federal power, or interferes with a nonresident’s right to pursue a livelihood in Wyoming. Id. Accordingly, the policy passes scrutiny under the Privileges and Immunities Clause. Finally, Pat’s Towing was not involved in promulgating the challenged policy. Even assuming that the policy abridged constitutional guarantees of equal protection or of the privileges and immunities of citizenship, the towing company is unconnected to the violation. As a result, both defendants are entitled to judgment as a matter of law on the claims included in Mr. Ratona’s second cause of action, and their motions for summary must be granted. 3. Deprivation of Property Without Due Process Mr. Katona’s third cause of action alleges that he was. deprived of property without due process of law. After his arrest, Mr. Katona’s car was towed by Pat’s Towing company to a private storage lot, pursuant to City ordinance Section 28-72. The ordinance requires written notice of the fact that the vehicle has been towed, the reason why it was removed from the street, and the place to which it was towed. City Ordinance Section 28-72(c). Mr. Katona contends that the City did not tell him where his car was being taken or how he could regain possession of it. The Court must assume the truth of this assertion on a motion for summary judgment. Mr. Katona had no opportunity before or after the car was towed to challenge the City’s action. Pat’s Towing company later purchased the car for towing and storage costs. The City argues for summary judgment on the grounds that due process does not require predeprivation notice and hearing before removing a car from city streets. It also urges that the removal was justified. Neither argument compels summary judgment.

11451016-17042

OPINION RICHARD MILLS, District Judge. In law, it is good policy to never plead what you need not, lest you oblige yourself to prove what you can not. Abraham Lincoln, Letter to Usher F. Linder (Feb. 20, 1848), in II Complete WORKS of AjbRaham LincolN, 3 (John G. Nicolay and Johns Hay, eds., New York: Francis D. Tandy Co., 1894). I. BACKGROUND Access Cash International, Inc. (“Access Cash”), is a Minnesota based company engaging in the business of providing self-service financial products, including ATM’s, transaction process, and management. Jack E. Wagner, Jr., began working for Access Cash as a commissioned salesperson on October 15, 1997. As part of his compensation package, Wagner received bi-weekly advances of $1,500.00 against his commissions from Access Cash. Between October 15, 1997, and February 15, 1999, Access Cash advanced to Wagner $54,150.00. However, during this same period of time, Wagner only earned $17,466.66 in commissions which were credited against his advances. On February 15, 1999, Access Cash terminated Wagner’s employment. Wagner was 46 years of age at the time. Thereafter, Access Cash hired D.J. Schultz to replace Wagner. Schultz was 23 years of age at the time he was hired by Access Cash. On October 31, 2000, Wagner filed a two Count Complaint in this Court against Access Cash. Count I alleges that Access Cash discriminated against Wagner by firing him because of his age in violation of the Age Discrimination in Employment Act (ADEA). 29 U.S.C. § 621 et seq. Count II alleges that Access Cash violated the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. § 1161(a) et seq., by failing to provide notice to Wagner of his right to continue his health insurance coverage upon his termination. Access Cash has now moved, pursuant to Federal Rule of Civil Procedure 56(c), for summary judgment on both of Wagner’s claims against it. II. STANDARD FOR SUMMARY JUDGMENT Federal Rule of Civil Procedure 56(c) 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 judgment as a matter of law.” Fed. R. Civ. Pro. 56(c); see Ruiz-Rivera v. Moyer, 70 F.3d 498, 500-01 (7th Cir.1995). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the Court must consider the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Gracia v. Volvo Europa Truck, N.V., 112 F.3d 291, 294 (7th Cir.1997). III. ANALYSIS A. ADEA CLAIM In order for Wagner to establish that Access Cash violated the ADEA, he must show that his age was a determining factor in Access Cash’s decision to fire him. Wolf v. Buss (America), Inc., 77 F.3d 914, 919 (7th Cir.1996); Smith v. Great Am. Restaurants, Inc., 969 F.2d 430, 434 (7th Cir.1992). Wagner need not prove that his age was the sole reason for Access Cash’s decision; rather, he need only to show that “but for” Access Cash’s motive to discriminate against him based upon his age, he would not have been subjected to an adverse employment action. Wolf, 77 F.3d at 919; La Montagne v. Am. Convenience Prods., Inc., 750 F.2d 1405, 1409 (7th Cir. 1984). Wagner may prove age discrimination in one of two different ways. [H]e may try to meet h[is] burden head on by presenting direct or circumstantial evidence that age was the determining factor in h[is] discharge. Or, as is more common, [ ]he may utilize the indirect, burden-shifting method of proof for Title VII cases originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later adapted to age discrimination claims under the ADEA. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir.1994) (citations and quotations omitted); Anderson v. Stauffer Chem. Co., 965 F.2d 397, 400 (7th Cir.1992). Contrary to his assertions otherwise, Wagner has presented no direct evidence that Access Cash fired him because of his age. “To prove age discrimination using direct evidence, an ADEA plaintiff must establish ‘that he would not have been discharged ‘but for’ his employer’s motive to discriminate against him because of his age.’ ” Mills v. First Fed. Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 840 (7th Cir.1996), quoting Karazanos v. Navistar Int’l Transp. Corp., 948 F.2d 332, 335 (7th Cir.1991); Anderson, 965 F.2d at 400. To prove the required “but for” causation, Wagner could have relied upon any of the following four types of evidence: 1) direct evidence that age was a determining factor, such as discriminatory statements uttered by the employer’s decision-maker. 2) circumstantial evidence that age was a determining factor, such as a statistical imbalance in the employer’s workforce. 3) direct evidence that the employer’s proffered justification is pretextual, such as a contradiction between the employer’s proffered justification at trial and documentary evidence from the time of the decision. 4) circumstantial evidence that the employer’s proffered justification is pretex-tual, such as evidence that the proffered justification is not a genuine job requirement. Giacoletto v. Amax Zinc Co., Inc., 954 F.2d 424, 425-26 (7th Cir.1992); Perfetti v. First Nat’l Bank of Chicago, 950 F.2d 449, 450-51 (7th Cir.1991). Wagner has tendered no such evidence. In fact, the only evidence presented by Wagner which arguably could constitute direct evidence is his affidavit in which he opines that Access Cash fired him because of his age. However, “conclusory allegations and self-serving affidavits, without support in the record, do not create a triable issue of fact.” Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir.2002). Therefore, in order for Wagner to proceed on his ADEA claim, he must rely upon the burden-shifting analysis set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir.2002)(holding that, if an employee presents no direct evidence of discrimination, his ADEA claim must proceed under the burden-shifting analysis of McDonnell Douglas). To establish a prima facie ADEA claim under McDonnell Douglas, Wagner must “present enough evidence to create a triable issue of fact on each of the following elements: 1) he is a member of the class protected by the statute; 2) he reasonably performed to his employer’s expectations; 3) he was terminated; and 4) the position remained open or he was replaced by someone substantially younger.” Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 472 (7th Cir.2002), citing Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). Once an ADEA plaintiff has established a prima facie case, a rebuttable presumption of discrimination is created. Wolf, 77 F.3d at 919; Oxman v. WLS-TV, 846 F.2d 448, 453 (7th Cir.1988). “The burden of production then shifts to the employer to articulate a legitimate nondiscriminatory reason for the employee’s termination.” Wolf, 77 F.3d at 919 (footnote omitted); Weihaupt v. Am. Med. Ass’n, 874 F.2d 419, 426 (7th Cir.1989). If the employer is able to overcome the presumption, the burden returns to the plaintiff to show by a preponderance of the evidence that the employer’s reasons are pretextual. Wolf, 77 F.3d at 919; Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1039 (7th Cir.1993). Pretext “means a dishonest explanation, a lie rather than an oddity or an error.” Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir.2000). The United States Court of Appeals for the Seventh Circuit has stated that “[pretext may be established directly with evidence that [the employer] was more likely than not motivated by a discriminatory reason, or indirectly by evidence that the employer’s explanation is not credible.” Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.1995). If an ADEA plaintiff chooses to establish pretext indirectly, the plaintiff may do so “by introducing evidence that demonstrates that (1) the prof fered reasons are factually baseless; (2) the proffered reasons were not the actual motivation for the discharge; or (3) the proffered reasons were insufficient to motivate the discharge.” Wolf, 77 F.3d at 919; Weihaupt, 874 F.2d at 428. Finally, an ADEA plaintiff may not simply show that the employer acted incorrectly; rather, the plaintiff must show that his employer did not believe the reasons it offered for firing him. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir.1992). The Court should “not sit as a super-personnel department that reexamines an entity’s business decisions. The question is not whether the [employer] exercised prudent business judgment, but whether [the employer] has come forward to refute the articulated, legitimate reasons for his discharge.” Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.l986)(internal citations omitted); Giannopoulos v. Brack & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir.1997). Although the Court recognizes that Wagner’s burden of establishing the four elements of a prima facie ease is not onerous but is generally “quite easy to meet,” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Kahn v. United States Secretary of Labor, 64 F.3d 271, 277 (7th Cir.1995), the Court finds that he has failed to establish the second element of his prima facie case. See Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th Cir.l997)(holding that “the prima facie case under McDonnell Douglas must be established and not merely incanted.”). Specifically, Wagner has failed to create a triable issue of fact regarding whether he reasonably performed his job duties to Access Cash’s expectations. The uncontroverted evidence shows that, in the two years in which it employed Wagner as a salesman, it lost over $35,000.00 due to Wagner’s failure to generate sufficient sales to enable his commissions to exceed his base pay as an advance on his commissions. Moreover, in its letter to Wagner notifying him that he was being discharged, Brandon Almich, Access Cash’s sales manager, informed Wagner that he was being fired “due to your failure to meet sales objectives established in the Fall conversation with Jon Thomas.” Wagner has offered no evidence, circumstantial or otherwise, to challenge this reason as being the basis upon which he was terminated. Furthermore, the fact that, in the months immediately preceding his termination, Wagner’s sales figures increased does not create a triable issue sufficient to defeat Access Cash’s summary judgment motion. An employer is under no duty to balance an employee’s favorable reviews and job performance against his unfavorable reviews and poor job performance in determining whether the employee is meeting the employer’s legitimate employment expectations. Peele, 288 F.3d at 328-29. On the contrary, an employer may terminate an at-will employee for a good reason, a bad reason, or for no reason at all; it just may not terminate an employee for a discriminatory reason. See Ward v. Post-Tribune Publ’g, Inc., 1998 WL 516786, * 2, 151 F.3d 1035 (7th Cir. 1998) (opining that the plaintiff “was an at-will employee, meaning he could be fired for any reason (or none at all) so long as the reason was not discriminatory.”). Finally, Wagner’s assertion that, if given the opportunity to do so, he will present live testimony at trial which will support his ADEA claim is wholly inadequate. As the Seventh Circuit has explained, summary judgment is the “ ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Schacht v. Wisconsin Dep’t of Corrections, 175 F.3d 497, 503-04 (7th Cir. 1999). If it is true that Wagner could have tendered witnesses to the Court to substantiate his ADEA claim, he should have offered these witnesses’ depositions and/or affidavits in response to Access Cash’s motion for summary judgment. He cannot, in the face of a summary judgment motion, assume that a trial will be held at which time he may prove his case. Accordingly, the Court finds that no genuine issues of material fact exist which would preclude it from entering summary judgment in Access Cash’s favor. Moreover, because Wagner has presented no direct evidence that Access Cash discriminated against him because of his age and because he has failed to establish the second element necessary to establishing a prima facie case for a violation of the ADEA under the McDonnelL-Douglas burden-shifting method, the Court finds that Access Cash is entitled to judgment as a matter of law. Therefore, summary judgment is entered in Access Cash’s favor on Wagner’s ADEA claim against it. B. COBRA CLAIM Likewise, the Court finds that Access Cash is entitled to summary judgment on Wagner’s COBRA claim. As one district court has explained: COBRA requires the plan sponsor of each group health plan to provide each qualified beneficiary, who would lose coverage under the plan as a result of a qualifying event, an option to continue coverage under the plan. 29 U.S.C. § 1161. Upon occurrence of a qualifying event, “the employer of an employee under a plan must notify the administrator ... within 30 days ... of the date of the qualifying event[.]” 29 U.S.C. § 1166(a)(2). The administrator then must notify, within 14 days of receiving the notification from the employer, any qualified beneficiary of his COBRA rights. 29 U.S.C. § 1166(a)(4)(A) & (c). Any administrator who fails to meet this notification requirement “may in the court’s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure ..., and the court may in its discretion order such other relief as it deems proper.” 29 U.S.C. § 1132(c)(1). Fenner v. Favorite Brand Int’l, Inc., 25 F.Supp.2d 870, 873 (N.D.Ill.1998). In the case sub judice, Wagner claims that he never received the requisite COBRA notice from Access Cash regarding the option to continue his health care benefits, and thus, summary judgment is inappropriate. However, this argument is inapposite because “employers are [not] required to ensure that plan participants actually receive a [COBRA] notice.” Degruise v. Sprint Corp., 279 F.3d 333, 336 (5th Cir.2002). Rather, “ ‘employers are required to operate in good faith compliance with a reasonable interpretation’ of what adequate notice entails.” Id.,quoting Kidder v. H & B Marine, Inc., 734 F.Supp. 724, 730 n. 6 (E.D.La.1990). Nevertheless, it is unclear whether Access Cash ever sent the requisite notice. It is clear from the evidence presented that Access Cash prepared a COBRA notice on February 22, 1999, but Access Cash has not offered any evidence (such as a mail log or an affidavit from someone in the mail room) that the notice was ever sent to Wagner. Wagner merely offers a conclusory denial—without any factual support—that the notice was ever sent, but because Access Cash has not offered any evidence that the notice was, in fact, sent, a genuine issue of material fact exists on this point. Nonetheless, the Court believes that Access Cash is entitled to summary judgment on Count II of Wagner’s Complaint. Contrary to Wagner’s implied assertion in his Complaint, his cause of action for Access Cash’s alleged failure to provide him with a COBRA notice arises under 29 U.S.C. § 1132, i.e., ERISA’s civil enforcement provision. In order for ERISA’s civil enforcement provision to be applicable, the plan at issue must be governed by ERISA. The Seventh Circuit has explained that, in order for a plan to qualify as an ERISA plan, five elements must be present: (1) a plan, fund, or program, (2) established or maintained, (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or vacation benefits, apprenticeship or other training programs, day care centers, scholarship funds, prepaid legal services or severance benefits, (5) to participants or their beneficiaries.

9215322-10671

BARKETT, Circuit Judge: This case is the latest in a long line of appeals stemming from a 1985 employment discrimination lawsuit brought by a class of African-American employees and applicants against the Alabama Department of Transportation (“ALDOT”). In January 1994, a group of white ALDOT employees moved to intervene for purposes of challenging the race-conscious aspects of a proposed consent decree between the African-American plaintiffs and ALDOT. The district court granted the motion and subsequently certified an additional class consisting of non-African-American ALDOT employees (the “Adams intervenors”). In March 1994, the district court signed a consent decree that incorporated certain race-neutral provisions insisted upon by the Adams intervenors and accepted by both plaintiffs and ALDOT (“the Consent Decree”). Disputes over the enforcement of this decree have spawned continuing litigation in the decade since 1994. In this case, we are asked to decide whether the district court had jurisdiction to refer to a special master a contempt motion filed by the Adams interve-nors to require ALDOT to comply with Article 15 of the Consent Decree. Article 15 commits ALDOT to take affirmative steps towards the “reclassification and reallocation” of “[a]ll employees then working for the [Alabama] Highway Department” (which is now ALDOT). Consent Decree Article 15 ¶ 1(a). Specifically, Article 15 entitled each ALDOT employee to complete a form listing the job duties she was performing and the percentage of time she spent on each duty. Each employee whose form indicated that she was spending a majority of her time performing duties associated with a higher job classification was to be reclassified to the higher level (provided that the ALDOT Personnel Department’s classification review and plans permitted the reclassification). Consent Decree Article 15 ¶ 1(b). These procedures were also made available to all “laborers who are working at [AL-DOT].” Consent Decree Article 15 ¶ l(c-e). In June 1997, the district court ordered that the proper date on which to evaluate employees’ duties for purposes of Article 15 reclassification is March 16, 1994, the date of the Consent Decree’s entry. See Order of June 16, 1997 and Memorandum Opinion of June 19, 1997. The reclassification procedures of Article 15, however, are not entirely “race-neutral.” The Article includes additional provisions designed to guarantee that newly available openings in any given classification would be filled by qualified African-American candidates, and to ensure that any restructuring of ALDOT job levels pursuant to the Consent Decree will not take place at the expense of ALDOT’s black employees. On September 20, 1999, the Adams in-tervenors moved the district court to order ALDOT to show cause why it should not be held in contempt for failure to comply with the reclassification and certain other provisions of Article 15. On April 30, 2003, in order to expedite the conclusion of this litigation, the district court referred this and other motions to a special master. Having considered this record and the arguments of counsel, we conclude that the Adams intervenors do have standing to bring civil contempt claims against AL-DOT on the basis of the Consent Decree. The Adams intervenors and plaintiffs alike seek enforcement of the reclassification provisions of the Consent Decree. The plaintiffs, defendants, and intervenors all consented to these provisions in March 1994. The Adams intervenors point in particular to ¶¶ (1) and (3)(d) of Article 15. As noted above, ¶ (1) is entirely race-neutral and provides that “[a]ll employees then working for [ALDOT] in the classified service” will be given the opportunity to be reclassified into a higher job classification. Nothing in this language excludes the Adams intervenors from availing themselves of the reclassification procedure. As for the reassignment process of ¶ 3(d), provided that the safeguards accorded African-American employees and quoted in footnote 5 above are respected, nothing in this paragraph bars the Adams interve-nors from seeking enforcement of this part of the Consent Decree as well. No Supreme Court or Eleventh Circuit case has squarely decided the specific question of whether a person, once allowed to intervene for purposes of challenging some or all of the provisions of a consent decree, then has standing to seek enforcement of that decree against parties clearly bound by it (the plaintiffs and defendants). Our reading of the most relevant precedents suggests no clear standing obstacles to the Adams intervenors in the circumstances of this particular case. By contrast, these precedents do suggest that, by virtue of having been permitted to intervene in the proceedings that led to the Consent Decree, the Adams intervenors “have legal rights at stake in this litigation.” Reynolds v. G.M. Roberts, 251 F.3d 1350, 1357 n. 12 (11th Cir.2001) (“Reynolds III ”). By not allowing the Adams interve-nors to bring civil contempt claims against ALDOT for .failure to enforce the reclassification provisions of the Consent Decree, moreover, we would effectively be rewriting the decree so as to make those provisions available only to African-American employees. See Reynolds v. G.M. Roberts, 207 F.3d 1288, 1301 (11th Cir.2000) (“Reynolds II"). In Davis v. Butts, 290 F.3d 1297, 1300 (11th Cir.2002) (“Reynolds IV”) and Reynolds v. Butts, 312 F.3d 1247, 1249 (11th Cir.2002) (“Reynolds V”), we noted that “racial discrimination was the focus of the Reynolds litigation.” Davis, 290 F.3d at 1300; Reynolds V, 312 F.3d at 1250 (“The record is clear that the focus of this case is racial discrimination”). But the Adams in-tervenors’ civil contempt claims at issue here are not claims of reverse discrimination. Their immediate claims are based, not on the Equal Protection Clause of the Constitution or on Title VII, but on the Consent Decree. In Reynolds V, we held that white non-members of the Adams in-tervenor class did not have standing to enforce the Consent Decree against AL-DOT “[bjecause [they] are neither parties to the consent decree nor named representatives or intervening members of a class in the litigation.” Reynolds, 312 F.3d at 1247. This is clearly not the case here, and so Moore v. Tangipahoa Parish School Board, 625 F.2d 33 (5th Cir.1980), upon which we relied in both Reynolds IV and V, does not apply. Even if it did apply, however, the underlying analysis of Moore argues for rather than against a finding of standing for the intervenors in this appeal. In Moore, we held that a white school teacher did not have standing to enforce a court order against a school board where the order was framed so as to establish a raeially-neutral school system. The school teacher in that case alleged that she had been discriminated against on the basis of a political agenda. Acknowledging that Fed. R.CÍV.P. 71 provides that “[w]hen an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party,” we nonetheless found that the white school teacher was not within the “zone of interests” protected by the district court’s order. Moore, 625 F.2d at 34 (quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). By contrast, as noted above, the reclassification provisions of the Consent Decree relied upon by the Adams intervenors in this case are race-neutral (though, to repeat, Article 15 also provides that race-neutral reclassification shall not come at the expense of ALDOT’s African-American employees). The Adams intervenors are within the “zone of interests” that the Consent Decree was designed to protect. Finally, we note that the Supreme Court’s Title VII jurisprudence does not bar the Adams intervenors from bringing their civil contempt claims. In the aftermath of Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) and other decisions, Congress promulgated the Civil Rights Act of 1991, which amended Title VII to provide that [n]o order of the [district] court shall require ... the hiring, reinstatement, or promotion of an individual as an employee ... if such individual ... was refused employment or advancement ... for any reason other than discrimination on account of race, color, religion, sex, or national origin ... 42 U.S.C. § 2000e-5. In Local Number 98, International Ass’n of Firefighters v. Cleveland, 478 U.S. 501, 515, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986), however, the Court held that a consent decree is not an “order” within the meaning of the provision just quoted. Thus, Title VII does not prevent a district court from approving a consent decree that requires a defendant to advance an employee for a reason other than racial discrimination. And if a district court is permitted to enter a consent decree to this effect, we see no basis in Title VII or elsewhere for prohibiting the court from issuing any subsequent orders necessary to enforce such a decree. We thus find no error in the district court’s referral of the Adams intervenors’ motion for contempt enforcement to a special master who, in accordance with the court’s previous order of June 16, 1997, shall implement the Article 15 reclassification in light of the relevant employees’ job duties as they existed on March 16, 1994. AFFIRMED. .The March 1994 Consent Decree was identified in one of our earlier rulings in this lawsuit as "Consent Decree I”: By late February 1994, the plaintiffs and the Department decided to divide the previously proposed decree into three parts, called Consent Decrees I, II, and III. Consent Decree I contained the provisions that all sides agreed provided only race-neutral prospective relief. Consent Decrees II and III contained provisions that were acceptable to the plaintiffs and the Department, but opposed as race-conscious by the Adams Intervenors. Reynolds v. G.M. Roberts, 207 F.3d 1288, 1293 (11th Cir.2000). Consent Decrees II and III have never been approved by the district court and are not at issue in this litigation. As noted below, however, it is not accurate to describe the March 1994 Consent Decree as completely "race-neutral.” . The motion at issue is entitled "Adams In-tervenors Motion for Contempt Enforcement through Race-Neutral Means” and was filed with the district court on September 20, 1999. This same motion is referenced in both of the district court’s April 30, 2003 referral orders ("Article Fifteen Referral Order” and "Individual-Civil-Contempt-Claims Referral Order”) now under review.

883389-20862

MEMORANDUM OPINION AND ORDER BUCKLO, District Judge. The plaintiff, Robert E. Hill, has sued his employer, the Postmaster General of the United States Post Office, Marvin Runyon (“Post Office”), for gender, race, and age discrimination. The defendant has moved to dismiss or, in the alternative, for summary judgment. For the following reasons, summary judgment on Mr. Hill’s claim that he was not selected for one of the Postal Career Executive Service positions is entered in favor of the defendant because these claims are barred by the statute of limitations. Summary judgment is also entered against Mr. Hill on his ADEA claims involving the Executive and Administrative Schedule positions. Mr. Hill’s remaining claims involving Executive and Administrative Schedule positions are dismissed without prejudice since he has failed to exhaust his administrative remedies. Background Bom in 1932, Mr. Hill is a white male. The executive level workers at the Post Office are divided into two grades and pay schedules. The top executive tier is known as the Postal Career Executive Service (“PCES”). The tier beneath PCES is known as the Executive and Administrative Schedule (“EAS”). There are several grades within each tier. In 1992 and 1993, the Post office underwent a restructuring. At the beginning of restructuring, Mr. Hill was a General Manager, Real Estate, grade level PCES-01 in the Chicago office of the Illinois Facilities Service Center (“Facilities”). Mr. Hill claims that the defendant’s failure to select him for any PCES and EAS positions during restructuring constituted gender, racial, and age discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act (“ADEA”). 29 U.S.C. § 633a. The Post Office has moved to dismiss or, in the alternative, for summary judgment, arguing that Mr. Hill’s PCES-related claims are time-barred, that I lack jurisdiction over the EAS-related claims because the plaintiff failed to exhaust administrative remedies, and that Mr. Hill has not raised an inference of discrimination with respect to his age claims. 18 PCES Managerial Positions Post Office employees “who believe [that] they have been discriminated against on the basis of race, color, ... sex, ... [or] age ... must ... initiate contact with a[n EEO] Counselor within 45 days ... of the effective date of the [personnel] action” claimed to be discriminatory. 29 C.F.R. § 1614.105(a)(1); Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir.1995). In the instant case, Mr. Hill claims that he was not selected for one of the 18 PCES managerial positions. The dates on which these positions were filled are the effective dates of the relevant personnel actions. Jakubiak v. Perry, 101 F.3d 23, 26-27 (4th Cir.1996). November 28, 1992 and December 12, 1992 were the dates for the selection of these managers. Therefore, the 45-day period began to run, at the latest, on December 12, 1992. Mr. Hill filed an EEO Request for Counseling, complaining of his failure to be selected for the 18 PCES managerial positions, on February 10, 1993. Accordingly, Mr. Hill did not initiate his con tact with an EEO counselor in a timely fashion. Id. The 45-day deadline “is construed as a statute of limitations and not as a jurisdictional prerequisite.” Johnson, 47 F.3d at 917 (Title VII); Bohac v. West, 85 F.3d 306, 311 (7th Cir.1996) (ADEA). It will be extended when the individual shows [ (1) ] that he or she was not notified of the time limits and was not otherwise aware of them, [(2)] that he or she did not know and reasonably should not have known that the discriminatory ... personnel action occurred, [ (3) ] that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or [(4)] for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2). Although Mr. Hill is a non-movant in this summary judgment motion, he “has the burden of proof on this issue since [ ]he is claiming the benefit of an exception from the operation of a statute of limitations.” Mirza v. Department of Treasury, 875 F.Supp. 513, 518 (N.D.Ill.1995) (quotation omitted). Mr. Hill cannot create a factual issue that he meets any of the four criteria for tolling the limitations period. • In a sworn affidavit of August 18, 1994, attached to Mr. Hill’s submission to the Merit Systems Protection Board (MSPB), see supra note 2, the plaintiff stated that “[o]n November 19, 1992, Mr. Dennis Bryan, the current Manager, Chicago FSO, told me that Headquarters Facilities Office had decided that I would not be selected or offered any position at any level in the restructured department. I was to stay in my office until I . received a directed reassignment.” (Maclin Declaration, Ex. 15.) Nevertheless Mr. Hill now says that he “did not know and reasonably should not have known that the discriminatory ... personnel action occurred,” 29 C.F.R. § 1614105(a)(2), until he received the January 6,1993 letter. (Pl.’s Ex. 14.) Mr. Hill argues that it was not reasonable for him to rely on Mr. Bryan’s statement because, at the time of the conversation, selections were still being made. However, if he knew that selections were still being made, he surely had the means for finding out when the PCES managerial positions, in which he was interested, became filled. Mr. Hill also argues that Mr. Bryan did not have the authority to notify him that he had not been selected. The deposition of the Manager of Corporate Personnel, Stephen Leavey, contradicts this characterization of Mr. Bryan’s scope of authority. (See Leavey Dep. at 140-41.) In addition, the January 6, 1993 letter, which the plaintiff credits with informing him of the discriminatory personnel actions, is signed by Mr. Bryan. Mr. Hill also contends that in November, he “did not have any reasonable suspicion of discrimination, as all of the PCES Facilities selectees were white males like himself.” (Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss or for Summ. J. at 50.) If the January 6, 1993 letter conveyed a critical piece of information that the November 1992 conversation with Mr. Bryan omitted, and that information aroused the plaintiffs suspicion about discrimination, Mr. Hill’s argument would be persuasive. Johnson, 47 F.3d at 920-21 (for purposes of suit under Rehabilitation Act, 45-day deadline extended until plaintiff received notification that she was terminated because of hypertension). However, Mr. Hill does not point to anything nor is there anything in the January 6 letter that conveys such information. See swpra note 6; see also Roepsch v. Bentsen, 846 F.Supp. 1363, 1369 (E.D.Wis.1994). Mr. Hill’s broadly sweeping assertions such as that the Post Office, did not follow its standard selection process, that it provided scant or incorrect information to its employees regarding restructuring, and that it did not inform the employees of their MSPB appeal rights cannot undermine the impact of his admission to his conversation with Mr. Bryan in November 1992. Mr. Bryan was Mr. Hill’s superior. At the very least, this conversation put Mr. Hill on notice and enabled him to engage in the necessary investigation so as to learn the effective dates of selection of the 18 PCES managers. 29 C.F.R. § 1614.105(a)(2) (“reasonably should ... have known that the discriminatory ... personnel action occurred”). The “continuing violation” doctrine does not help Mr. Hill. This doctrine “allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period.” Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir.1994) (quotation omitted). This doctrine recognizes that the discriminatory nature of an act may only become apparent in light of subsequent acts if an employer follows a covert practice of discrimination. Id. at 445-46. Here, Mr. Hill argues that he initiated timely contact with an EEO counselor regarding the EAS positions; he seeks to link these to the 18 PCES managerial positions. He argues that the defendant’s restructuring, designed to protect women and minorities, constituted an on-going discrimination policy. The “continuing violation” doctrine is not available if the plaintiff “knows or with the exercise of reasonable diligence would have known after each act that it was discriminatory and had harmed him.” Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 282 (7th Cir.1993). Even assuming, arguendo, that Mr. Hill’s contact with an EEO counselor regarding the EAS positions was timely, in light of the immediately preceding discussion, he cannot rely on the “continuing violation” doctrine. Mr. Hill argues that the defendant has not produced any evidence that he had constructive knowledge of the 45-day deadline. If this is Mr. Hill’s attempt to satisfy the first prong of the tolling test in 29 C.F.R. § 1614.105(a)(2), it must fail. He has the burden on this issue of showing lack of knowledge and Mr. Hill nowhere argues that he “was not notified of the time limits and was not otherwise aware of them.” Id. Since Mr. Hill failed to comply with the 45-day deadline, 29 C.F.R. § 1614.105(a)(1), and failed to meet any of the four criteria for tolling the limitations period, 29 C.F.R. § 1614.105(a)(2), his claims with respect to the 18 PCES managerial positions are time-barred. Accordingly, defendant’s motion for summary judgment on these claims is granted. EAS Positions Federal regulations provide that “[a] complainant who has filed an individual complaint ... is authorized under title VII [and] ... the ADEA ... to file a civil action ... [a]fter 180 days from the date of filing an individual ... complaint if an appeal has not been filed and a final decision has not been issued.” 29 C.F.R. § 1614.408(b). Mr. Hill filed the formal EEO Complaint of Discrimination in the Postal Service (“EEO complaint”) in May 1993 and this suit on April 3, 1996. Defendant argues that, notwithstanding the passage of 180 days, this court lacks subject matter jurisdiction because Mr. Hill failed to exhaust his administrative remedies as to the EAS positions. Under Title VII, a federal employee must exhaust administrative remedies prior to filing suit in federal court. Pack v. Marsh, 986 F.2d 1155, 1157 (7th Cir.1993); Mirza, 875 F.Supp. at 520. By contrast, under the ADEA, this Circuit “no longer require[s] that administrative remedies, once begun, must be exhausted before suit is filed in district court.” Bohac, 85 F.3d at 311 (citing Adler v. Espy, 35 F.3d 263 (7th Cir.1994)). The record shows the following. Mr. Hill’s EEO complaint was dated May 11, 1993 and was received by the EEO Office on May 17, 1993. In this complaint, Mr. Hill, through his attorney, Joleen Payeur Olsen, complained that “he had not been selected for any of the new positions in his professional field after the U.S. Postal Service had completed its reorganization. All of the selectees for the various positions were younger than Mr. Hill, and many of the selectees were of a different race, color, and sex than Mr. Hill.” Mr. Hill identified the Vice President, Mitchell H. Gordon, and the 18 PCES managers, see supra, as the officials responsible for the alleged discriminatory decisions, and sought as one of his remedies an appointment to a “comparable position.” (Maclin Declaration, Ex. 2.) In October 1993, Mr. Hill was assigned as a PCES on Special Assignment to a temporary detail as a Real Estate Specialist, EAS . 16/22. On November 19, 1993, he filed an appeal with the Merit Systems Protection Board (MSPB) on the grounds that this assignment, as well as his nonselection for any position during the defendant’s restructuring, was discriminatory. On the same day, Mr. Hill’s attorney informed the EEO Office of his MSPB appeal. (Maclin Declaration, Ex. 4.) On November 18, 1993, the EEO Office accepted Mr. Hill’s EEO complaint for investigation. Its understanding was that Mr. Hill was complaining that he had not been selected for the 18 PCES managerial positions. The EEO Office indicated in a letter dated December 8, 1993 that if “the complainant does not agree with the defined issue(s), s/he must provide us with sufficient reasons.” (Maclin Declaration, Ex. 3.) On February 14, 1994, Mr. Hill’s attorney, Ms. Olsen, advised the EEO Office that the EEO process in [Mr. Hill’s] ... complaint ... was terminated because of filing an appeal with the Merit Systems Protection Board (MSPB)____ This case ... [is] no longer in the EEO forum. Th[i]s complaint[ ] w[as] transferred to the MSPB on November 19, 1993, and that transfer terminated the EEO process---- [T]he Agency should stop sending requests for affidavits and threatening my client[ ] with the dismissal of the[ ] complaint[ ], as that process was terminated several months ago.... (Maclin Declaration, Ex. 5.) In response, on February 18, 1994, the EEO Office informed Ms. Olsen that it was suspending any investigatory action on Mr. Hill’s complaint until the MSPB determined the scope of its jurisdiction. (Maclin Declaration, Ex. 6.) On June 14, 1995, Mr. Hill requested that the EEO Office recommence the processing of his complaint since the MSPB’s decision, dismissing his appeal for lack of jurisdiction, became final on March 15, 1995. (Maclin Declaration, Ex. 7.) On October 2, 1995, in response to Mr. Hill’s request for a hearing before an EEOC Administrative Judge (“ALJ”), the EEO Office indicated that it was investigating the plaintiffs complaint. (PL’s Ex. 25.) On October 16, 1995, the EEO Office telephoned Mr. Hill’s counsel to seek additional information. Ms. Olsen’s response was that her “understanding [was] that [a] request for a[n EEOC] hearing terminated the investigatory stage of the EEO administrative process.” (Id.) On November 14, 1995, the EEO Office ágain contacted Mr. Hill’s counsel for clarification of the basis of the plaintiffs claim. In this communication, the EEO Office stated that [a] close review of the Formal Complaint causes some confusion. Under Item 9 on PS Form 2565, the Complainant names Mitchell H. Gordon and the Managers on attached Exhibit “A” as the responsible management officials. That list of manager positions in Exhibit “A” were shown in the acceptance letter, dated December 8, 1993, as those identified by the Complainant as the basis of his non-selection issue. You did not object to that statement of the issue. In his formal complaint, Mr. Hill does not identify any specific positions, but states, in pertinent part, “... on February 1,1993, Mr. Hill became aware that he had not been selected for any of the new positions in his professional field ...” Please inform me if the list of eighteen (18) positions shown in exhibit “A” constitutes the basis of his claim of discrimination, or if he intended to limit his claim to as yet undisclosed positions in the Real Estate field.... In addition, there is no information of any kind submitted by the Complainant to explain his request for compensatory damages— It is my intention to continue with this investigation. To develop a complete and impartial factual record, as required by EEOC, it is imperative that your Client complete an affidavit. I am extending the time limits for production of this affidavit. I seek your cooperation and that of Mr. Hill____ (Maclin Declaration, Ex. 9.) Ms. Olsen’s November 22, 1995 response was that she “do[es] not agree with the Agency’s definition of the issues.” She did not, however, provide the requested information. (Maclin Declaration, Ex. 10.) On January 19, 1996, upon Mr. Hill’s request, an EEOC ALJ reviewed Mr. Hill’s file and remanded his complaints to the EEO Office. The order stated that the “Complainant failed to provide the Agency with an affidavit____ [and that the] Complainant is required to clearly articulate to the Agency the issues and bases of his complaint.” (Ma-clin Declaration, Ex. 11.) Pursuant to the above order, on January 29, 1996, the EEO Office again contacted Mr. Hill’s counsel, asking her to “[s]pecify each individual issue, with date of occurrence, that comprises the instant complaint” and warning that “[failure to comply with this request within fifteen calendar days from your receipt of this notification will result in .dismissal of this complaint for failure to cooperate.” (Maclin Declaration, Ex. 12.) On February 16, 1996, Ms. Olsen responded to the above request in the following manner: Mr. Hill’s EEO complaint pertains to the two rounds of nationwide selections that occurred during the Agency’s 1992-199[3] restructuring. In the first round of selections, the Agency selected PCES employees to be the managers of various departments and facilities. (See, the eighteen [18] positions referenced in the Agency’s December 8, 1993, definition of the issues). Mr. Hill, although eligible, was not selected for any of these positions. Complainant believes that Messrs. Gordon, Wilson, Enverso, Anthony, Maxwell, Wamsley, Blanchard, Ms. Elaine Johnson, and possibly others were involved in filling those PCES positions. The individuals who were selected for those eighteen positions are identified in Exhibit A attached to Mr. Hill’s formal complaint. In the second round of selections, the managers who were selected for those eighteen (18) positions selected PCES and EAS employees for the various EAS positions available in their respective installa-tions____ Although eligible, Mr. Hill was also not selected for any of those positions anywhere in the United States---- (Maelin Declaration, Ex. 13) (emphasis added.) Ms. Olsen indicated that she could not provide any further specifics because such information was in the defendant’s possession. (Id.) Later in February 1996, EEO again wrote to Ms. Olsen. (Pl.’s Ex. 26.) On March 12,1996, Mr. Hill’s counsel responded, emphasizing again that Mr. Hill was complaining about not being selected for any PCES and EAS positions, and elaborating on the defendant’s selection process. (Id.) Less than a month later, on April 3,1996, Mr. Hill filed the instant complaint in federal court. Implicit in the requirement that a Title VII plaintiff exhaust administrative remedies is the expectation that the plaintiff will, in good faith, cooperate with the relevant agency. Wade v. Secretary of Army, 796 F.2d 1369, 1377 (11th Cir.1986). With respect to the claims involving EAS positions, Mr. Hill’s counsel repeatedly failed to provide the EEO Office with the information it required and requested to conduct an investigation. Courts have held that “notwithstanding the passage of 180 days, [as is the case here,] plaintiffs who resort to the administrative process but do not cooperate in the proceedings can thereby fail to exhaust their administrative remedies.” Munoz v. Aldridge, 894 F.2d 1489, 1493 (5th Cir.1990); Pack, 986 F.2d at 1156-58; Charles v. Garrett, 12 F.3d 870, 874-75 (9th Cir.1993); Edwards v. Department of the Army, 708 F.2d 1344, 1346-47 (8th Cir.1983); Foster v. Bentsen, 919 F.Supp. 293, 298 (N.D.Ill.1996). Mr. Hill’s May 1993 EEO complaint referred to the 18 PCES managerial positions, leading the EEO Office to conclude that Mr. Hill was complaining about not having been selected' for these positions. The EEO Office offered Mr. Hill an opportunity to correct this perception, but the plaintiff ignored the opportunity. Having decided to explore another remedial avenue, the MSPB appeal, Mr. Hill, through his counsel, told the EEO Office to cease its investigation. Mr. Hill instructed the EEO Office to resume processing his complaint after losing before the MSPB. The EEO Office again sought clarification as to whether the complaint entailed anything other than nonselection for the 18 PCES managerial positions. Mr. Hill did not clarify. In February and March 1996, the plaintiff finally began to cooperate with the EEO Office by indicating that his complaint encompassed nonselection for the EAS positions. Had the EEO Office not acted for the next six months, Mr. Hill may have been justified in filing suit in federal court. Munoz, 894 F.2d at 1493-94 (where “case languishes in the administrative phase for long beyond 180 days” and “record discloses no evidence that the plaintiffs have failed to cooperate or otherwise attempted to frustrate the administrative process,” abandoning administrative process does not “constitutef ] ... lack of cooperation” and does not result in failure to exhaust administrative remedies). Here, by contrast, Mr. Hill participated in the administrative process, at most, for two months with respect to the EAS positions, became impatient, and rushed to the court house. He effectively abandoned administrative remedies in midstream and therefore did not exhaust them. Khader v. Aspin, 1 F.3d 968, 971 (10th Cir.1993).

6640112-18241

Opinion of the Court Robert E. Quinn, Chief Judge: At a common trial with a Corporal Self and a Sergeant Leffew, the accused was convicted by a general court-martial in Korea of premeditated murder, larceny, and unauthorized absence. He was sentenced to death. On appeal, a board of review held that the accused was deprived of the effective assistance of counsel by the law officer's denial of a timely motion for a severance. However, the board of review concluded that the denial prejudiced the accused only as to the murder charge. It, therefore, affirmed the findings of guilty of larceny and unauthorized absence, and ordered a rehearing on the murder specification. The board of review took no action on the sentence, except to note that the approved findings of guilty would support a sentence of only a dishonorable discharge, total forfeitures, and confinement at hard labor for life. After the board of review’s decision the accused filed a petition for grant of review in this Court. The Government moved to dismiss the petition as premature. We ordered the filing of briefs on the question of our jurisdiction. While the motion to dismiss the accused’s petition in this Court was pending, the case came on for rehearing before a court-martial convened at Fort Ord, California, by the Commanding General, Sixth Infantry Division. Before the arraignment, the accused moved to dismiss the murder charge on the ground, among others, that the court lacked jurisdiction to proceed during the pendency of the proceeding in this Court. The motion was denied. The case then proceeded to trial, with a direction from the convening authority that it be treated as noncapital. The accused was again convicted of premeditated murder. During the sentence procedure the court was advised of the approved findings of guilty of larceny and unauthorized absence without leave, and was instructed that it could consider them in its deliberations on the sentence. The court adjudged a sentence to a dishonorable discharge, total forfeitures, and confinement at hard labor for life. The conviction was affirmed by the convening authority, but the period of confinement was reduced to twenty years. A board of review affirmed. On the same day that the convening authority took action on the rehearing record, oral argument on the Government’s motion to dismiss the accused’s petition to review the original record was had in this Court. Shortly thereafter, we granted the motion and ordered dismissal of the petition, on the ground that the board of review had not made a final determination in the case. The appeal, therefore, was premature. The dismissal was without prejudice. United States v. Best, 4 USCMA 581, 16 CMR 155. After the board of review’s affirmance of the rehearing conviction, the accused filed in this Court a new petition for grant of review. We granted review to consider the following issues: “1. Whether the court-martial had jurisdiction to rehear the case while a petition attacking the results of the first trial was pending before this Court. “2. Whether the Board of Review was correct in determining that in the first trial the accused was deprived of the effective assistance of counsel on only one of the three charges.”' The accused contends that, at least from the time this Court ordered briefs filed on the Government’s motion to dismiss his original petition, no other court had jurisdiction to take any action in the case. It is certainly the general rule that a duly perfected appeal divests lower tribunals of further jurisdiction of the cause, except that they may act in aid of the appeal. Berman v. United States, 302 US 211, 82 L ed 204, 58 S Ct 164; Heitmuller v. Stokes, 256 US 359, 65 L ed 990, 41 S Ct 522; Tinkoff v. United States, 86 F2d 868 (CA 7th Cir) (1936), cert den 301 US 689, 81 L ed 1346, 57 S Ct 795. The rule is stated in 4 CJS, Appeal and Error, § 607, pages 1091-1092, as follows: “The respective powers of the appellate and lower court, after jurisdiction has been transferred by the perfection of the proceedings for appellate review, are largely determined by the statutes regulating appellate matters in the particular jurisdiction. Usually, however, the transfer of jurisdiction gives to the appellate court the exclusive power and authority over the subject matter of the appellate proceeding, and the authority of the lower court with reference thereto is suspended so that it cannot proceed with the case until the appellate proceeding is heard and determined and the remittitur or mandate is regularly returned and entered on the records.” In Simmons v. United States, 89 F2d 591 (CA 5th Cir) (1937), cert den 302 US 700, 82 L ed 540, 58 S Ct 19, the Court of Appeals said that the “reason for this rule is readily apparent. If the trial court could amend the judgment at all, it could so amend it as to render it nugatory and either destroy the basis of the appeal or make the case in the appellate court moot.” In accordance with the general rule, we have held that no case can at the same time be before more than one tribunal in the military justice system. United States v. Jackson, 2 USCMA 179, 7 CMR 55; United States v. Reeves, 1 USCMA 388, 3 CMR 122. It is clear, however, that transfer of jurisdiction over the whole case occurs only when the appeal is from a final judgment. There is no such transfer if the appeal is from an interlocutory decree or order. 4 CJS, Appeal and Error, § 609, page 1094. The requirement of finality is specifically set out in Berman v. United States, supra. After determining that the sentence constitutes the final judgment in a criminal case, the United States Supreme Court said (page 214) : “As the first sentence was a final judgment and appeal therefrom was properly taken, the District Court was without jurisdiction during the pendency of that appeal to modify its judgment by resentencing the prisoner.” The distinction between the effect of an appeal from a final decree and that of an appeal from an interlocutory holding was commented upon by the Court of Appeals for the Sixth Circuit, in Foote v. Parsons Non-Skid Co., 196 Fed 951 (CA 6th Cir) (1912). The court there said (page 954) : “We observe by the record that the Circuit Court struck from the files the stipulation for decree in that court, apparently upon the ground that when the stipulation was filed the case was pending in this court upon appeal. An appeal from a motion granting a preliminary injunction does not have the effect to remove the cause to this court, but the cause generally remains in the court below, and continues in the control of that court. Section 129, Judicial Code. The distinction in this particular between such appeals as this and appeals from final decree was doubtless overlooked by the District Judge, if, indeed, he was not intending to exercise his discretionary power under this section.” See also: In re Bills of Exceptions, 37 F2d 849 (CA 6th Cir) (1930). In Riddle v. Hudgins, 58 Fed 490 (1893), the Court of Appeals for the Eighth Circuit also had occasion to consider this difference. In that case the plaintiff brought an action to enforce an equitable mortgage on certain personal property. He obtained an order of attachment but on the defendant’s motion an order was entered vacating the attachment. The plaintiff appealed from this order to the United States Supreme Court. While the appeal was pending, further proceedings were had in the trial court which resulted in a hearing by a master and the entry of a final judgment in favor of the plaintiff. On appeal to the Court of Appeals, the defendant contended that the trial court lost jurisdiction to proceed with the cause during the pendency of the plain tiff’s appeal to the Supreme Court from the order vacating the attachment. Rejecting this contention, the Court of Appeals said (page 493): “From this last order the plaintiffs prayed an appeal to the supreme court of the United States, which was allowed, and one of the contentions of the appellant is that the lower court thereby lost jurisdiction of the case. The order discharging the so-called ‘attachment’ was not a final judgment, and was not appealable, (Robinson v. Belt, 56 Fed. Rep. 328,) and the jurisdiction of the court over the cause was not affected by anything done in relation thereto.” In this case, the original appeal to this Court was dismissed because it did not present for review a final decision on the sentence, as required by the Uniform Code of Military Justice. In essence, the appeal was merely from an interlocutory, nonappealable order by the board of review. Consequently, it did not result in transferring the case to this Court. In the absence of such transfer of jurisdiction, the court-martial could properly proceed with the rehearing, as directed by the board of review. Cases pertaining to the power of a court to order a stay of proceedings pending its determination of a doubtful question of jurisdiction are inap-posite. See United States v. Shipp, 203 US. 563, 51 L ed 319, 27 S Ct 165; United States v. United Mine Workers of America, 330 US 258, 91 L ed 884, 67 S Ct 677. On application for a stay, the court to which application is made has authority “from the necessity of the case, to make orders to preserve the existing conditions.” United States v. Shipp, supra, page 573. As a matter of fact, in the Shipp case, which is strongly relied upon by the accused, an order staying proceedings was actually granted by the Supreme Court. In the United Mine Workers of America case, which is also cited by the accused, the Supreme Court merely emphasized that the District Court has the power to order a stay to preserve the status quo until it determines its own authority to grant the relief sought. In this case, the accused made no application for a stay in this Court, and no stay was ordered by this Court. For his second claim of error, the accused contends that the board of review erred in limiting the effect of its determination that he was denied the effective assistance of counsel. The accused contends that if there is a deprivation of counsel, it immediately divests the court of power to proceed further in the case. To support the contention he relies upon such cases as Johnson v. Zerbst, 304 US 458, 82 L ed 1461, 58 S Ct 1019, and Wright v. Johnston, 77 F Supp 687 (ND Calif), which are concerned with habeas corpus proceedings based upon a claim of a denial of the effective aid of counsel. In the Wright case, for example, the District Court said: “It is my opinion that the court lost jurisdiction to proceed on the denial of the motion for a continuance. If it had not lost jurisdiction then, it was lost as soon as the conflicting statements were introduced into evidence and it became apparent that either the motion for a severance should be granted, or that a separate attorney should be appointed for Wright with a continuance adequate for such separate attorney to prepare his case.” On the other hand the Government maintains that the line of cases relied upon by the accused simply indicates that the remedy of the writ of habeas corpus is not limited to instances in which a conviction is void for want of power to proceed, but that it also extends to situations in which the accused has been denied a constitutional right, and the writ is the only effective means of preserving that right. See: Sanford v. Robbins, 115 F2d 435 (CA 5th Cir) (1940), cert den 312 US 697, 85 L ed 1132, 61 S Ct 737; Waley v. Johnson, 316 US 101, 86 L ed 1302, 62 S Ct 964; United States v. Ferguson, 5 USCMA 68, 17 CMR 68. This view of the principle announced in the habeas corpus cases is implicit in the decision of this court in United States v. Van- derpool, 4 USCMA 561, 16 CMR 135. In that case, as here, the accused’s original conviction was set aside by the board of review on the ground that he had been denied the effective assistance of counsel. At the rehearing, testimony taken at the former trial was admitted in evidence. The accused was again convicted. On appealing this conviction, the accused contended that the former testimony should not have been admitted because the proceedings of the first trial were void as a result of the denial of aid of counsel. We rejected this argument. Writing for a unanimous court, Judge Brosman said (page 565): “We are sure that this jurisdictional position cannot be sustained. It is true that courts-martial are special tribunals of limited jurisdiction, and strict compliance with the creative statute is required. United States v. Padilla, 1 USCMA 603, 5 CMR 31; McClaughry v. Deming, 186 US 49, 46 L ed 1049, 22 S Ct 786; Carter v. Woodring, 92 F2d 544 (CA DC Cir). However, we have repeatedly held that not every violation of a statutory provision with respect to court-martial proceedings constitutes a jurisdictional defect. United States v. Hutchison, 1 USCMA 291, 3 CMR 25; United States v. May, 1 USCMA 174, 2 CMR 80; cf United States v. Pino [ACM 5274], 6 CMR 543. On the contrary we have said that proceedings are rendered void only by a failure to comply with those provisions which constitute ‘indispensable prerequisites’ to the exercise of court-martial jurisdiction. United States v. Goodson, 1 USCMA 298, 3 CMR 32; cf. Humphrey v. Smith, 336 US 695, 93 L ed 986, 62 S Ct 830. “While these provisions secure important safeguards to an accused, we do not think it was intended that a failure to comply with them should vitiate the jurisdiction of a court-martial. In this connection the contention of the defense that the initial board of review should have ordered ‘another trial’ rather than a ‘rehearing’ is not well taken. In United States v. Sizemore, 2 USCMA 572, 10 CMR 70, we held that a failure to grant a recess, which resulted in the refusal of defense counsel to make a closing argument, was tantamount to a denial of accused’s right to counsel at a crucial stage in the conduct of the trial. In that case, however, we cured the prejudicial error by ordering a rehearing. Also, in United States v. Goodson, supra, we held that the failure of the convening authority to appoint a commissioned officer as trial counsel did not cause the special court-martial there to lose jurisdiction.” The Court of Appeals for the District of Columbia Circuit has also determined that denial of the effective assistance of counsel does not necessarily result in want of power in the trial court to take further proceedings in the case. In Noble v. Eicher, 143 F2d 1001 (CA DC Cir) (1944), certain defendants petitioned for writs of prohibition directed against the trial judge in a criminal case. The ground of each petition was that the trial judge had ordered that the petitioner be represented by a lawyer who was also representing another defendant, and that there was a conflict of interest between the two defendants. Each petitioner further claimed that he was not permitted counsel of his own choice. The petitioner there, as the accused in this case, relied upon Johnson v. Zerbst, supra, and Glasser v. United States, 315 US 60, 86 L ed 680, 62 S Ct 457. In denying the petitions, the Court of Appeals said: “. . . If there is a conflict of interest here, as alleged by the petitioners, the rule of these cases has been transgressed. ..... “We think that in the circumstances here the writs of prohibition sought ought not to issue. There is no assertion of absence of jurisdiction in the sense that the trial court has no power whatever to deal with the class of case before it. It is true that there will have been inconvenience to the petitioners in continuing through the trial, if it should ultimately be determined on appeal that the conflict of interest asserted deprives the trial court of jurisdiction as to them. On the other hand, the present issuance of writs and a present determination of the question whether there is a conflict of interest as asserted would unavoidably and unduly interrupt the criminal proceeding.” Disposal' of the jurisdictional issue does not completely answer the accused’s claim of error as to the denial of the effective aid of counsel. The board of review held that the denial affected only the murder charge. It ordered a rehearing of that charge, but it affirmed the findings of guilty as to the other offenses. The accused maintains that the board of review’s attempt to limit the effect of the error is legally unsupportable. The right to counsel is fundamental to a fair trial. An appellate court will reverse a conviction with-0ut indulging “in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 US 60, 76, 86 L ed 680, 62 S Ct 457. Moreover, the Federal courts are apparently not inclined to limit the effect of the deprivation of counsel to particular counts of a several count indictment. For example, in Coplon v. United States, 191 F2d 749 (CA DC Cir) (1951), cert den 342 US 926, 96 L ed 690, 72 S Ct 363, the defendant was tried on a two count indictment. The Court of Appeals for the District of Columbia Circuit found ample evidence to support the findings of guilty, but it remanded the case to the District Court to determine whether the Government had intruded into the private consultations between the accused and her counsel. The court held that such an intrusion would constitute a denial of the aid of counsel. Significantly, the court did not attempt to examine the contents of the consultations to determine whether they related to only one or to both of the counts charged. Commenting on the effect of the denial of the aid of counsel, the court said (page 759): “We think it is further true that the right to have the assistance of counsel is so fundamental and absolute that its denial invalidates the trial at which it occurred and requires a verdict of guilty therein to be set aside, regardless of whether prejudice was shown to have resulted from the denial.” See also: United States v. Venuto, 182 F2d 519, 522 (CA 3d Cir) (1950). Military appellate tribunals have also shown no disposition to confine the effect of the error to less than all the findings of guilty. See: United States v. Ellis, 65 BR 151; United States v. Elbertson, 2 BR 173.

3871569-27027

MEMORANDUM AND ORDER BLOCK, Senior District Judge. BACKGROUND In these consolidated actions, plaintiff, Sean Hall (“Hall”), proceeding pro se, claims that various state and city officials have refused to correct inaccurate information in his pre-sentence report (“PSR”) and an erroneous notation on his criminal-history report (“rap sheet”) that he was arrested for murder. A. Action I Action I was commenced on November 12, 2004, as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Hall alleged that the “Present Offense” section of his PSR recited that he “attempted to intentionally cause the death of a person by means of a deadly weapon [and] knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of children of less th[a]n seventeen years old.” Pet. (Action I) at 5-A. Because he had actually been convicted of second-degree assault, second-degree criminal possession of a weapon and second-degree reckless endangerment, Hall alleged that the information in the PSR was “inaccurate,” “harmful” and “ambiguous,” and “portray[ed] him as a dangerous and extremely violent individual with a depraved indifference for human life.” Id. He further alleged that, despite his repeated attempts to correct the inaccuracy, the uncorrected PSR was relied on at a parole hearing at which parole was denied because of “the violence [he had] exhibited during the instant offense.” Id. at 5-Aii. B.Action II Action II was commenced on January 1, 2005, as a suit pursuant to 42 U.S.C. § 1983. Hall sued the City of New York (“City”), the New York City Department of Probation (“DOP”) and the Kings County District Attorney’s Office (“D.A.’s Office”). He also sued, in both their official and individual capacities, Cynthia Wong-Ortiz (“Wong-Ortiz”), DOP’s Assistant General Counsel, and Assistant District Attorneys Victor P. Barall (“Barall”) and Cynthia Lynch (“Lynch”). While Action II, like Action I, focuses on the alleged inaccuracy in Hall’s PSR, his complaint also alleged that his “rap sheet reflects [that] he was arrested for second-degree murder [and] was also left to stand incorrect.” Compl. (Action II) ¶ 14. Hall alleged that DOP prepared the PSR, that Lynch and Barall opposed his requests to have the inaccuracy corrected at sentencing and on direct appeal, that Wong-Ortiz opposed Hall’s subsequent motion to have the sentencing court order the PSR corrected, and that the D.A.’s Office opposed correction in connection with the parole hearing. He further alleged that the actions of these defendants were “deliberately indifferent to the rights of Citizens to be free from unlawful and unconstitutional deprivation of liberty.” Compl. (Action II) ¶ 35. With respect to the City, Hall alleged that it “directly caused [ ] constitutional violations by a practice, policy and custom of failing to properly train, supervise and monitor [its officers’] conduct and practices ... to effectuate deprivation of liberty by preparing harmfully inaccurate and ambiguously phrased reports,” id. ¶ 30, and that it “has [been] and continues to be deliberately indifferent to the rights of Citizens to be free from unconstitutional acts and practices which result in deliberate constitutional violations.” Id. ¶ 31. Based on these allegations, Hall seeks damages from all defendants in Action II. In addition, he sought an injunction ordering (1) that his PSR be corrected and (2) that his “arrest information that was made in error be either expunged or sealed.” Id. ¶ 29. C. December 20, 2005 Decision In a Memorandum and Order issued December 20, 2005, the Court construed Hall’s petition in Action I as a complaint seeking relief under § 1983. See Hall v. Marshall, 2005 WL 3479880, at *1 (E.D.N.Y. Dec.20, 2005) (citing Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005)). The Court also sua sponte dismissed (1) the claims for monetary relief against the individual defendants in their official capacities as barred by the Eleventh Amendment, and (2) all claims against defendants Victor P. Barall (“Barall”) and Cynthia Lynch (“Lynch”) as barred by the doctrine of prosecutorial immunity. See id. at *1-*2. D. Hall’s First Motion for Preliminary Injunctive Relief On March 1, 2006, Hall filed a motion for a preliminary injunction (1) ordering Marshall to collect all copies of Hall’s PSR (and documents derived therefrom) and turn them over to DOP, (2) ordering DOP to turn over the copies to the Court “for safekeeping pending final judgment,” and (3) sealing Hall’s “arrest information” pending final judgment. Mot. for a Prelim. Inj. (Mar. 1, 2006) ¶¶ 1-4. E. May 3, 2006 Stipulation In a stipulation “so ordered” by the Court on May 3, 2006, DOP agreed to correct the PSR by replacing the “Pres ent Offense” section with a statement listing the offenses of which Hall was convicted, and by adding a notation that Hall disputed the complaining witness’s version of events. In exchange, Hall agreed to dismiss with prejudice his claims for in-junctive relief regarding the PSR, and to withdraw his March 1st motion for a preliminary injunction. F. Hall’s Amended Complaint in Action I On June 12, 2006, after Marshall had filed an amended answer in Action I, Hall filed an amended complaint in that action. Since Hall is not entitled to an amendment as of right, see Fed.R.Civ.P. 15(a), the Court’s construes the amended complaint as a motion for leave to amend. The amended complaint named as additional defendants the State of New York (“State”), the New York State Division of Criminal Justice Services (“DCJS”), the New York State Department of Correctional Services (“DOCS”), and Rosemary Riker, the Inmate Records Coordinator of Wallkill Correctional Facility (“Riker”). Hall alleged that his rap sheet, which reflects an arrest for second-degree murder on July 9, 1998, “is erroneous and made in error because there was no murder committed in connection with his offense.” Am. Compl. (Action I), ¶ 10. He further alleged that DCJS “continues to maintain the erroneous arrest information,” and that “[l]aw enforcement [officials can access this erroneous information [wjhich can very well place Plaintiffs life in danger when he is approached by law enforcement [ojfficers.” Id. ¶ 11-12. The amended complaint also elaborated on the allegations regarding the PSR. First, Hall alleged that the DOCS and Riker “were custodians of Plaintiffs prison records,” that “[tjheir continued maintenance of inaccurate records resulted in the inaccurate information being forwarded to the State Parole Board,” that the “State Parole Board then used and relied upon the inaccurate information in Plaintiffs parole hearing,” and that “[a]s a result, Plaintiff was detained the maximum period permissible.” Id. ¶¶ 18-19, 28. He further alleged that the State “directly caused [ ] constitutional violations by a practice, policy and custom of failing to properly train, supervise and monitor [its officers’] conduct and practices ... to effectuate deprivation of liberty by preparing harmfully inaccurate and ambiguously phrased reports.” Id. ¶ 84. The amended complaint contains no allegations regarding Marshall’s involvement in the alleged constitutional violations. Based on these allegations, Hall seeks damages from all defendants in Action I. In addition, he seeks an injunction ordering that his rap sheet “be corrected, sealed or expunged to prevent that information from being accessed by law enforcement and posing a potential threat to [his] life.” Id. ¶ 38. G. Hall’s Second Motion for Preliminary Injunctive Relief On August 14, 2006, Hall filed a second motion for a preliminary injunction, in which he seeks an order, in respect to his rap sheet, (1) directing the City to provide DCJS “with the documentation necessary to correct Plaintiffs erroneous arrest information ..., or, in the alternative [to] seal the erroneous arrest information,” and (2) sealing the allegedly erroneous arrest information “pending final disposition in this case.” Mot. for a Prelim. Inj. (Aug. 18, 2006) ¶¶ 1-2. In his supporting submissions, Hall alleged that “[o]n July 25, 2006, Plaintiff applied for a tow truck driver[’]s license with the New York City Department of Consumer Affairs and was ordered to explain the erroneous arrest information,” Aff. in Supp. of Mot. for a Prelim. Inj. ¶ 3; he further alleged that “[t]he erroneous arrest information can be corrected by [DCJS] if the City of New York would submit documentation reflecting the arrest information was made in error, however, the City of New York refuses to do so.” Id. ¶ 5. In support of these allegations, Hall submitted a document generated by DCJS to explain the procedures someone seeking correction of criminal records must follow. As pertinent here, those instructions provide that “[t]o modify arrest data ..., YOU must contact the arresting agency. DCJS REQUIRES written notification from the ARRESTING AGENCY to correct this information.” Id., Ex. A. H. Remaining Claims In light of the Court’s December 20, 2005 Memorandum and Order and the parties’ May 3, 2006 stipulation, the following claims remain: • Hall’s claims for monetary relief with respect to both the PSR and the rap sheet. • Hall’s claims for injunctive relief with respect to the rap sheet. I. Pending Motions In addition to Hall’s construed motion for leave to amend the complaint in Action I and his motion for a preliminary injunction regarding the rap sheet, now pending before the Court are motions by the defendants in both actions seeking dismissal of the claims against them. In Action I, Marshall moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds (1) that he was not personally involved in any constitutional violation, (2) that Hall has no constitutional right to have correct information in his state records, and (3) that a § 1983 claim is not a proper basis for challenging a denial of parole. Marshall also opposes Hall’s proposed addition of defendants in Action I, on the ground of futility. In Action II, all defendants move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). With respect to Hall’s claims regarding his PSR, they argue (1) that an inaccurate PSR does not implicate any interest protected by the Due Process Clause, and (2) that the inaccurate information did not result in a due-process violation because it was not relied on in denying Hall parole. With respect to the claims regarding the rap sheet, defendants do not dispute that the rap sheet erroneously recites that Hall was arrested for murder; rather, all of the defendants argue (1) that Hall’s claims are barred by res judicata, collateral estoppel and the statute of limitations, (2) that Hall has not alleged any damages resulting from the inaccurate rap sheet, and (3) that correcting the error on the rap sheet would destroy the record’s authenticity. In addition, Wong-Ortiz argues that she had no personal involvement in the preparation of Hall’s arrest information and that, in any event, she is protected by the doctrines of absolute and qualified immunity. The City argues that Hall has failed to allege sufficient facts to support a claim for municipal liability. Finally, DOP and the D.A.’s Office argue that they are not suable entities. DISCUSSION A. Overview Mindful that, at this stage of the proceedings, Hall’s factual allegations must be taken as true, see Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999), and liberally construed “to raise the strongest arguments that they suggest,” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994), the Court construes Hall’s submissions as advancing two claims. First, he claims that his PSR contained inaccurate information regarding the nature of his offense that was relied on as a basis for denying him parole; for that, he seeks monetary relief against all defendants in both Action I and Action II, his claims for injunctive relief regarding the PSR having been resolved by the May 3, 2006 stipulation. Second, he claims that his rap sheet erroneously recites that he was arrested for murder, that as a result, his prospective interactions with potential employers and governmental actors will be adversely affected, and that, absent a correction, he will be denied a state-issued tow-truck driver’s license; for that, he seeks monetary and injunctive relief against the State, DOCS and DCJS, as well as Marshall and Riker, in both their official and individual capacities. In addition, the Court construes Hall’s second motion for a preliminary injunction, regarding his rap sheet, as also seeking permanent injunctive relief from the City. At bottom, Hall’s claims stem from the premise that official records regarding one’s criminal history should be accurate. The premise is not an unreasonable one, and its importance is undeniable, especially where, as here, one of those records falsely states that the plaintiff was arrested for murder; indeed, district courts have the inherent equitable authority to order expungement of federal criminal records, see United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir.1977), and have used that authority to expunge errors in such records. See, e.g., Doe v. Immigration & Customs Enforcement, 2004 WL 1469464 (S.D.N.Y.2004) (Baer, J.) (citing Schnitzer and expunging erroneous notation that plaintiff had been arrested and detained by immigration officials). Recognizing the same interest in accurate state records, New York law provides an administrative procedure by which anyone can “challenge the completeness or accuracy of [his or her] criminal history record information” by filing a “Statement of Challenge” with DCJS, 9 N.Y.C.C.R.R. § 6050.2; if the person is unsatisfied with DCJS’s initial response, he or she may administratively appeal to the Commissioner of DCJS, see id. § 6050.3, and, if still unsatisfied, seek judicial review. See NY. C.P.L.R. Art. 78, Practice Commentary C7801:l (“[A]rticle 78 proceedings are used to challenge action (or inaction) by agencies and officers of state and local government”); Groves v. State Univ. of N.Y. at Albany, 265 A.D.2d 141, 707 NY.S.2d 261 (3d Dep’t 2000) (applying Article 78 to DCJS). This case involves state, not federal, criminal records. And although state law might afford Hall a remedy, a state-law claim would be insufficient to invoke this Court’s jurisdiction; for this Court to award the relief Hall seeks, he must present a claim based on federal law. In that regard, he contends that the defendants’ refusal to correct the alleged accuracies in his PSR and rap sheet violated his right to due process, as guaranteed by the Fourteenth Amendment. One of the fundamental elements of a due-process claim is the existence of a cognizable interest in liberty or property: “If the interest [a plaintiff] asserts is not of a constitutional dimension, i.e., not a protected property or liberty interest, then [his] arguments must fail.” Donato v. Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623, 628-29 (2d Cir.1996). Even palpably false statements by a governmental actor will not support a § 1983 claim if the only injury is to the plaintiffs reputation. See Paul v. Davis, 424 U.S. 693, 712, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (“[A]ny harm or injury to [a reputational] interest, even where ... inflicted by an officer of the State, does not result in a deprivation of any ‘liberty’ or ‘property’ recognized by state or federal law[.]”); Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir.2004) (“Defamation ... is an issue of state law, not of federal constitutional law, and therefore provides an insufficient basis to maintain a § 1983 action.”). Governmental defamation is actionable only if it falls within the so-called “stigma plus” doctrine. See Sadallah, 383 F.3d at 38. “To prevail on a ‘stigma plus’ claim, a plaintiff must show (1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiffs status or rights.” Id. With regard to the second element— the “plus” — outside the loss of government employment, “it is not entirely clear what the ‘plus’ is.” Neu v. Corcoran, 869 F.2d 662, 667 (2d Cir.1989). With those standards in mind, the Court now addresses Hall’s claims regarding his PSR and rap sheet. B. The PSR By alleging that his PSR contained a description of his offense that was factually false and damaging to his reputation, Hall has adequately alleged a “stigma.” And despite the jurisprudential uncertainty regarding the “plus” prong, the Court concludes that Hall’s allegation that he was denied parole based on an inaccurate PSR qualifies as a “plus.” Cf. Paul v. Davis, 424 U.S. 693, 711, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (“Before the State could alter the status of a parolee because of alleged violations of the[ ] conditions [of parole], we held [in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),] that the Fourteenth Amendment’s guarantee of due process of law required certain procedural safeguards.”). In other words, even though New York State inmates “have no liberty interest in parole,” Barna v. Travis, 239 F.3d 169, 171 (2d Cir.2001), the denial of parole certainly qualifies as a “material state-imposed burden or state-imposed alteration of [Hall’s] status or rights.” Sadallah, 383 F.3d at 38. Although Hall’s claim regarding his PSR satisfies the requirements for a “stigma plus” claim, most of the numerous defendants he has sued cannot be liable for monetary damages on that claim. First, DOP and the D.A.’s Office are nonsuable entities. See Bodie v. Morgenthau, 342 F.Supp.2d 193, 206 (S.D.N.Y.2004) (DOP); Michels v. Greenwood Lake Police Dep’t, 387 F.Supp.2d 361, 367 (S.D.N.Y.2005) (D.A.’s Office). Second, Hall does not allege that either Marshall or Wong-Ortiz was personally responsible for the inaccuracies in the PSR: “It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’ ” Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). In addition, the Court agrees with Wong-Ortiz’s contention that even if she had been personally involved in a constitu tional violation, she would be protected from Hall’s claims for damages by the doctrines of absolute and qualified immunity. In regard to the former, the Second Circuit has held that “New York probation officers in preparing and furnishing [pre-sentence] reports to the courts, like federal probation officers, are entitled to absolute immunity from suits for damages.” Hili v. Sciarrotta, 140 F.3d 210, 214 (2d Cir.1998). While Hall alleges only that Wong-Ortiz simply opposed his motion to have the sentencing court correct his PSR, the Court concludes that the rationale for granting absolute immunity to probation officers — namely, “the desirability of having [PSRs] provide the courts with all information that may be relevant to sentencing,” id. at 213-justifies extending her the same immunity. As for qualified immunity, governmental actors are entitled to qualified immunity from claims for 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). For a constitutional right to be clearly established, there must be binding precedent recognizing it: “Only Supreme Court and Second Circuit precedent existing at the time of the alleged violation is relevant in deciding whether a right is clearly established.” Moore v. Vega, 371 F.3d 110, 114 (2d Cir.2004). Furthermore, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Although the Court has concluded that Hall’s claim regarding his PSR qualifies as a “stigma plus,” neither the Second Circuit nor the Supreme Court has held that the refusal to correct criminal history records rises to the level of a constitutional violation. Moreover, even assuming that a generalized right to accurate records existed, a reasonable person in Wong-Ortiz’ position would have no reason to believe that merely opposing correction would violate that right. For these reasons, Wong-Ortiz would, at the very least, be entitled to qualified immunity. Hall’s claim for damages against the City stands on a different footing. Municipalities are liable for damages under § 1983 only “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell v. Department of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipality’s failure to train or supervise its officers can rise to the level of an actionable policy or custom where it amounts to “deliberate indifference” to the constitutional rights of its citizens. City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); see also Thomas v. Roach, 165 F.3d 137, 145 (2d Cir.1999) (“A municipality may be liable under § 1983 ... where the City’s failure to supervise or discipline its officers amounts to a policy of deliberate indifference.”). The City argues that Hall has not adequately alleged a claim for municipal liability. The Court disagrees. In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the Supreme Court held that Monell claims are not subject to a heightened pleading standard and need “include only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ ” Id. at 168, 113 S.Ct. 1160 (quoting Fed.R.Civ.P. 8.(a)(2)). By specifically alleging (1) that the City had “a practice, policy and custom of failing to properly train, supervise and monitor [its officers’] conduct and practices ... to effectuate deprivation of liberty by preparing harmfully inaccurate and ambiguously phrased reports,” Compl. (Action II) ¶ 30, (2) that the policy resulted in an inaccurate PSR, which, despite Hall’s objections, remained inaccurate at the time he was considered for parole, and (3) that, through its failure to train, the City “has [been] and continues to be deliberately indifferent to the rights of Citizens to be free from unconstitutional acts and practices which result in deliberate constitutional violations,” id. ¶ 35, Hall has satisfied that standard. In addition, apart from Hall’s allegations that the City failed to train and supervise its employees, the Court liberally construes Hall’s submissions to allege that the City maintains a custom or policy of refusing to correct PSRs even after errors are brought to its attention; this, too, is a sound basis for municipal liability. See Nesbitt v. County of Nassau, 2006 WL 3511377, *4 (E.D.N.Y. Dec.6, 2006) (holding that allegation of county officials’ “active inattention to or knowing acquiescence in misconduct by law enforcement personnel,” which led to an unlawful arrest, assault and search, was sufficient to allege municipal liability under Leatherman). With regard to the defendants that Hall seeks to add in Action I, the Eleventh Amendment precludes Hall from pursuing a claim for damages against the State, DOCS and DCJS. See Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir.1999) (“An official arm of a state enjoys the same Eleventh Amendment immunity from suit in federal court as is enjoyed by the state itself.”). It also precludes claims for damages against Riker in her official capacity, see Davis v. New York, 316 F.3d 93, 101 (2d Cir.2002); while it would not bar a damages claim against her in her individual capacity, see Hefer v. Melo, 502 U.S. 21, 31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), Hall has not alleged that she was personally responsible for the alleged inaccuracies in his PSR. Thus, with respect to the PSR claim, Hall’s proposed addition of defendants would be futile. In sum, Hall adequately alleges a claim for damages based on the inaccuracies in his PSR; however, that claim is viable only against the City. C. The Rap Sheet Hall’s allegation that his rap sheet erroneously recites that he was arrested for murder obviously also qualifies as a “stigma.” With regard to his claim that the error will adversely impact his interactions with law enforcement and prospective employers, such harms are exactly the type of harms that the Supreme Court in Paul held insufficient to constitute a “plus”: [The plaintiffs] complaint asserted that [his] “active shoplifter” designation [on a flyer distributed by local authorities] would inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended, and would seriously impair his future employment opportunities. 424 U.S. at 697, 96 S.Ct. 1155. Accepting that “such consequences may flow from the flyer in question,” the Court nevertheless held that the “defamatory publications, however seriously they may have harmed [the plaintiffs] reputation, did not deprive him of any ‘liberty’ or ‘property’ interests protected by the Due Process Clause.” 424 U.S. at 712, 96 S.Ct. 1155. By contrast, the Court concludes that denial of a state-issued tow-truck license would qualify as a “plus.” See Drake v. Laboratory Corp. of Am. Holdings, 290 F.Supp.2d 352, 362 (E.D.N.Y.2003) (“In Neu ..., the [circuit] court suggested that interference with one’s license to practice a profession might constitute a legal right or status sufficient to satisfy a stigma plus claim.” (citing Neu, 869 F.2d at 670 n. 3)); cf. Paul, 424 U.S. at 711, 96 S.Ct. 1155 (“The Court held [in Bell v. Burson, 402 U.S. 585, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971),] that the State could not withdraw th[e] right [to operate a motor vehicle] with giving petitioner due process.”). Hall, however, has not alleged that he has actually been denied such a license; in the absence of any current injury, Hall cannot maintain any claims for damages relating to the rap sheet. However, since Hall’s pleadings, liberally construed, allege that the City’s refusal to provide documentation to DCJS to allow the rap sheet to be corrected is preventing him from obtaining a tow-truck license, a mandatory injunction ordering the correction is an appropriate remedy to prevent Hall from suffering a constitutionally cognizable “plus.” See Swift & Co. v. United States, 276 U.S. 311, 326, 48 S.Ct. 311, 72 L.Ed. 587 (1928) (“[A]n injunction may issue to prevent future wrong, although no right has yet been violated.”).

3584153-17544

PER CURIAM: Amonnon Louis, through counsel, petitions for review of the decision of the Board of Immigration Appeals affirming the order of the immigration judge (“IJ”) denying his claims for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the United Nations Convention Against Torture (“CAT”). He challenges the IJ’s adverse credibility finding, argues that the IJ failed to consider corroborating evidence, and erred in finding that he had no well founded fear of future persecution. We DENY the petition. I. BACKGROUND In 2004, the Department of Homeland Security served Louis, a native and citizen of Haiti, with a notice to appear, alleging that he was an alien who had remained in the United States for a time longer than permitted, in violation of 8 U.S.C. § 1227(a)(1)(B). Louis admitted the allegations, but sought asylum and withholding of removal. In his application, Louis stated the following: He was seeking asylum based on his political opinion which was in opposition to the Lavalas Party. He was president of the “Cooperation pour la Promotion de la Production Nationale d’Haiti” (“CPPNH”). AR at 137-38. In November 2002, he participated in a panel that denounced the Aristide government for its violations of the constitution. Immediately after the panel discussion, Felix Bien-Aimé, a member of Lavalas, led a dozen people in an attack on Louis at his home. The attackers told Louis that the panel was going to be the last time he spoke about the government. Louis’s neighbors stopped the beating and prevented Bien-Aimé and the others from taking Louis away. As he left, one of the attackers struck Louis with the butt of a gun and screamed, “long lives Aristide and down with Convergence.” Id. at 142. Convergence was a party opposed to Lavalas. After the attack, Louis went into hiding. His neighbors reported to him that three men in a truck came looking for him on an almost daily basis. He decided that his life was in danger and it was in his best interest to move to Miami. Louis feared going back to Haiti because he believed that Bien-Aimé would kill him. Louis reported that the vice-president of CPPNH told him to stay in Miami. Louis also mentioned in the application that he had been arrested twice because of his political opinion, and had been accused of being in the Convergence Party because he was not part of the Lavalas Party. In support of his application Louis submitted, among other things, the following evidence: (1) his membership card for the Haitian Christian Democratic Party; (2) his membership card for the CPPNH, which stated that he was the president and founder; (3) a print-out from a website that was selling “Rethinking Haiti,” a book that Louis coauthored; (4) a letter from members of CPPNH; (5) a reference letter, which stated that Louis had helped create jobs in Haiti; and (6) a letter from Louis’s wife. The letter from the CPPNH members stated that Louis was their president, that they had been shut down by the school board, and that Louis had left involuntarily because his life was in danger. The letter from his wife stated that Louis had opened a factory where clothing was made, but that a branch of the school board had seized the building, leaving the factory without a space in which to reopen. His wife added that one day Bien-Aimé had come to their home and threatened to kill Louis. At his asylum hearing, Louis testified to the following: He was a member of the National Democratic Christian Party of Haiti. In 1998, he had founded the CPPNH to promote work and Haitians getting involved in their government. The CPPNH had not affiliated with any political party. In early 1998, Louis spoke with the mayor of Delmas about obtaining a government sponsored “local” for storing the goods that the CPPNH produced. Id. at 68. The mayor asked Louis if he would register the CPPNH under the Lavalas Party, but Louis refused. Nevertheless, the mayor gave the CPPNH a building in which to store materials. The CPPNH building was in a five-building complex, and the four other buildings were being used by a school board. Louis reported that, in December 1999— after nearly two years, a school board representative and three armed security guards confronted Louis at the building. They assaulted him, told him that CPPNH would no longer occupy the building, and then locked him out. To avoid further confrontation, Louis then went to the police station where they allowed him “sit down and calm [himjself.” Id. at 71. Later that day, he went home. After that incident, Louis received threats that he would die unless he registered the CPPNH as part of the Lavalas Party. He further testified that, in May 2002, men dressed as policemen had beat and arrested him. Louis believed that they were not really policemen because the men could not identify themselves as police officers, and when they brought him to the police station in Port>-au-Prince, the real police asked the men how they could arrest someone without a warrant. Louis identified these men as members of the “OP, [or] Popular Organization.” Id. at 73. The real police held Louis overnight and released him the next day when a judge so ordered. The IJ noted that Louis had not described this incident in detail in his asylum application. Louis continued, testifying that later that same month, the real police had arrested him because Bien-Amé had filed a complaint. Bien-Amé claimed that Louis had assaulted his wife. Louis was brought before a court within hours of being arrested. After hearing testimony from Louis and Bien-Amé, the judge determined that there was no foundation for the charges and ordered Louis’s release. Louis then described how, on 20 August 2002, Bien-Amé and 12 others came to Louis’s home and started beating him. They hit him and told him “this [was] the last time [he was] going to talk about the Lavalas.” Id. at 79. Louis’s neighbors came to his defense and prevented Bien-Amé and the men from taking him away. However, Louis was forced to leave home after the incident. Louis stated that Bien-Amé had attacked him because he had criticized the government at a debate his organization had sponsored. Louis asserted that he was well known in Haiti for his political opinion and his organization’s activity. Louis testified that he had written a book entitled “The Retaking of Haiti,” and that he was working on another book titled “Haiti in Coma.” Id. at 85. Louis feared that if he returned to Haiti, he would be killed. He explained that some of his colleagues were in hiding because they had been accused of being rebels responsible for Aistide leaving. Louis reported that one of his friends had been killed for helping Louis leave Haiti. On cross-examination, Louis stated that he was aware that Aistide was no longer in power, but that Lavalas was still very powerful. He admitted that he had heard rumors that Bien-Aimé had been arrested by the police in September 2002. He also conceded that his wife and children continue to live in Haiti. The record contains a 2005 U.S. State Department Country Report on Human Rights Practices (“2005 Report”). The report states that, as of the date of the report, Aristide and the Lavalas Party were no longer in power and that Aristide had left Haiti. The 2005 Report further stated that arbitrary killings had taken place, politically motivated disappearances had occurred, and that there was politically motivated violence. The majority of the violence described in the report was direct against Aristide/Lavalas supporters. A 2002 U.S. State Department Country Report on Haiti (“2002 Report”) stated that Bien-Aimé had been detained by the Haitian National Police and that human rights organizations believed he was dead. An article in the New York Sun stated that Bien-Aimé had disappeared after having threatened to blackmail some of his former associates about the murder of a baby. The article further stated that his partly burned car was found near Ti Tanyen, a killing field in Haiti. Having considered the testimony and the documentary record, the IJ issued an oral decision. The IJ noted that Louis had testified and submitted various documents in support of his asylum application. However, he had failed to describe his two arrests in his asylum application with the detail in which he had described them during his oral testimony. Further, Louis’s oral description of the reasons for the arrests conflicted with the asylum application because the application stated that he had been arrested for being part of Convergence, but in his oral testimony he did not even mention Convergence, much less explain how Convergence fit into the arrests. Based on these inconsistencies, the IJ found that Louis lacked credibility. The IJ also found that Louis had failed to show past persecution or a well-founded fear of future persecution. As to past persecution, the record demonstrated that anytime Louis came into contact with the “official apparatus” of Haiti, except with regard to his eviction, he was treated fairly. Id. at 38. As to a well-founded fear of future persecution, all reports were that Bien-Aimé was dead, the Haitian government had changed, and there was no indication that anyone in the Haitian government was “out to get” Louis. Id. Based on these findings, the IJ ordered that (1) Louis’s application for asylum and withholding of removal be denied; (2) relief under the CAT be denied; and (3) Louis be removed and deported to Haiti. In his counseled appeal to the BIA, Louis attacked the IJ’s credibility determination by arguing that it had not constituted omission for his asylum application to contain less detail than his testimony. He further argued that his failure to mention the Convergence Party during his testimony had not been inconsistent because the Convergence Party was in political opposition to the Lavalas Party. Louis also asserted that there was other corroborating evidence of his problems with the government. He argued that there was sufficient evidence of violence in Haiti to support his well founded fear of persecution. The BIA issued a written order affirming the IJ. The BIA found “no clear error” in the adverse credibility determination, explaining that Louis’s “failure to mention his arrests in his application, and the other omissions and inconsistencies, were appropriately considered by the [IJ].” AR at 2. The BIA reasoned that Louis had had ample opportunity to explain the discrepancies during his oral testimony and that it had been Louis’s bur den to establish his eligibility for relief. The BIA also explained that Louis’s claim of continued violence in Haiti was not a proper basis for challenging the IJ’s finding of ineligibility. In his timely petition for review, Louis argues that (1) the IJ’s adverse credibility finding was not supported by substantial evidence; (2) the IJ relied solely on the adverse credibility finding and did not consider other documentary evidence; and (3) the IJ’s finding that there was no past persecution or that he lacked a well-founded fear of future persecution was not supported by substantial evidence. II. DISCUSSION When the BIA issues a decision, we review only that decision, except to the extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). To the extent that the Board adopts the IJ’s reasoning, we review the IJ’s decision as well. Id. Here, because the Board gave the IJ’s reasons and stated that there was no clear error, we also review the IJ’s decision. When evaluating a petition for review of a decision by the BIA, we review findings of fact under the “substantial evidence test,” and must affirm the decision “if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.2005) (quotation omitted). Under the “highly deferential” substantial evidence test, we “consider only ‘whether there is substantial evidence for the findings made by the BIA, not whether there is substantial evidence for some other finding that could have been, but was not, made.’ ” Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (en banc) (citation omitted). We review the record evidence in the light most favorable to the agency’s decision and may not overturn findings of fact unless the record compels it. Forgue, 401 F.3d at 1287. Finally, the BIA is “entitled to rely heavily” upon the State Department country reports. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir.2004). An alien who arrives in or is present in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1). The Attorney General or Secretary of DHS has discretion to grant asylum if the alien meets the INA’s definition of a “refugee.” § 1158(b)(1). According to this definition, a “refugee” is any 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 asylum applicant carries the “burden of proving such statutory ‘refugee’ status.” Al Najjar, 257 F.3d at 1284. To establish asylum eligibility, the alien must, with specific and credible evidence, establish (1) past persecution on account of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause future persecution. 8 C.F.B.. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. To demonstrate the connection between the alleged persecution and the listed factor, the petitioner must “present specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution on account of’ that factor, or that he or she is a member of or is identified with a group that is subjected to a pattern of persecution. Al Najjar, 257 F.3d at 1287; see also Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174-75 (11th Cir.2008) (citing 8 C.F.R. § 208.13(b)(2)(iii)). An asylum applicant may not show merely that he has a political opinion, but must show that he has been persecuted because of that opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992). We have held, for this purpose, that “ ‘persecution’ is an ‘extreme concept,’ requiring ‘more than a few isolated incidents of verbal harassment or intimidation,’ and that ‘[m]ere harassment does not amount to persecution.’ ” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.2005) (per curiam) (citation omitted). If the alien establishes past persecution, it is presumed that his life or freedom would be threatened upon return to the country of removal unless the government shows by a preponderance that the country’s conditions have changed such that the applicant’s life or freedom would no longer be threatened or that the alien could relocate within the country and it would be reasonable to expect him to do so. 8 C.F.R. §§ 208.13(b), 208.16(b). An alien who has not shown past persecution may still be entitled to asylum if he can demonstrate a future threat to his life or freedom on a protected ground in his country. 8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2). To establish a “well-founded fear,” an applicant must show that he has a fear of persecution in his home country and that “[t]here is a reasonable possibility of suffering such persecution if he or she were to return to that country.” 8 C.F.R. § 208.13(b)(2)(i)(B). We have opined that “the precise contours of the ‘well-founded fear’ inquiry continue[] to evolve.” Al Najjar, 257 F.3d at 1289. However, we have held that “an applicant must demonstrate that his or her fear of persecution is subjectively genuine and objectively reasonable.” Id. “The statutes governing asylum and withholding of removal protect not only against persecution by government forces, but also against persecution by non-governmental groups that the government cannot control.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir.2006) (per curiam). We review credibility determinations under the substantial evidence test and in so doing we “may not substitute [our] judgment for that of the BIA with respect to credibility findings.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir.2004) . To constitute an adverse credibility determination, the IJ or BIA must have stated explicitly that the applicant’s testimony was not credible. See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.2005) (holding that an IJ’s statement that applicant’s testimony “was extremely inconsistent and [made] no sense whatsoever” was not a credibility finding but a comment on the sufficiency of the evidence). “Further, the IJ [or BIA] must offer specific, cogent reasons for an adverse credibility finding.” Forgue, 401 F.3d at 1287. Thereafter, the burden falls upon “the applicant alien to show that the IJ’s [or BIA’s] credibility decision was not supported by specific, cogent reasons or was not based on substantial evidence. A credibility determination, like any fact finding, may not be overturned unless the record compels it.” Id. (citations and quotations omitted).

9325626-14804

MEMORANDUM OPINION ELLIS, District Judge. At issue on a transfer motion in these consolidated securities class actions is whether the venue provision in § 27 of the Securities Exchange Act, 15 U.S.C. § 78aa, permits venue in a district based only on the fact that allegedly misleading information was transmitted into the district, or whether § 78aa also requires a showing that at least one class member in the transferee district read and relied on that information. I. This consolidated securities litigation consists of seven cases brought against AES Corporation (“AES”) and three individual defendants, which were consolidated into one action for all purposes by Order dated December 12, 2002. Defendant AES is a global energy and utilities company engaged in electrical energy production and distribution through owned power facilities throughout the world. The three individual defendants, Dennis W. Bakke, Roger W. Sant, and Barry Sharp are AES’s President and Chief Executive Officer, Chairman of the Board, and Chief Financial Officer, respectively. In essence, plaintiffs allege that defendants concealed facts concerning losses in their United Kingdom operations, as well as the expected adverse effects of new legislation on those operations by omitting this information from certain press releases and SEC filings. These fraudulently concealed material facts, according to plaintiffs, served artificially to inflate the price of AES stock such that when the truth finally emerged, the plaintiff class suffered damages owing to the precipitous drop in the value of AES stock. Based on these alleged facts, plaintiffs assert (i) claims against all defendants under Section 10(b) of the Exchange Act (hereinafter the “Act”), 15 U.S.C. § 78a et seq. and Rule 10(b)(5), 17 C.F.R. § 240.10(b)(5), and (ii) claims against the individual defendants under § 20(a) of the Act, 15 U.S.C. § 78t(a). In timely fashion, defendants moved to transfer the consolidated actions, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the Southern District of Indiana, where, according to defendants, related securities actions are pending. Because § 1404(a) transfers are limited to “any other district or division where [the action] might have been brought,” a threshold question on this motion to transfer is whether venue in the Southern District of Indiana is proper. The parties’ competing contentions in this regard are easily summarized. Plaintiffs in this case allege that defendants engaged in an unlawful scheme artificially to inflate the price of AES stock and that defendants, in furtherance of that scheme, disseminated misleading statements to the investing public nationwide, including Indiana. Defendants point to this nationwide dissemination of the allegedly false and misleading materials as sufficient to support venue in the Southern District of Indiana. Plaintiffs, in contrast, argue that the mere act of disseminating the allegedly offending materials to Indiana is not enough; proper venue, plaintiffs contend, requires a showing that the materials were read and relied on in Indiana by an eligible class member. II. The venue analysis properly begins with an examination of the terms of the governing statute. Thus, the Act provides that a securities fraud private action under the Act may be brought, inter alia, in “the district wherein any act or transaction constituting the violation occurred.” 15 U.S.C. § 78aa; see also, e.g., S-G Securities, Inc. v. Fuqua Investment Co., 466 F.Supp. 1114, 1121 (D.Mass.1978). This language is manifestly broad; it permits venue in all districts where “any act” constituting the violation occurred. Appropriately, courts have consistently and sensibly construed the provision broadly, holding that the “venue-sustaining act need not constitute the core of the alleged violation, nor even be illegal, so long as it represents more than an immaterial part of the alleged violations.” S-G Securities, 466 F.Supp. at 1121 (citations omitted). More to the point, the case law uniformly supports the proposition that the alleged transmission of the misleading materials into the district is a venue-sustaining act under § 78aa. As more than one district court has put it: “Venue will be sustained in a securities case where a defendant causes false or misleading information to be transmitted into a judicial district, even if the defendant never has been physically present in that district.” John Nuveen and Co. v. New York City Hous. Dev. Corp., 1986 WL 5780 (N.D.Ill. May 9, 1986) (quoting Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191, 197 (E.D.Pa.1974)). In this case, the record clearly establishes that the allegedly misleading public filings and press releases were transmitted into the Southern District of Indiana. Thus, the record contains copies of two Indiana Business Journal articles containing information disseminated by AES, as well as press releases released by AES over the business wire, which reach a nationwide audience. Indeed, in bringing a nationwide class action, plaintiffs themselves assert that AES’s allegedly misleading materials were disseminated nationwide, and do not now attempt to argue that these materials were not disseminated in Indiana. In arguing that venue requires a showing of reliance in Indiana, plaintiffs rely principally on American High-Income Trust v. AlliedSignal, Inc., 2002 WL 373473 (D.Del. March 7, 2002). Specifically, plaintiffs quote language from the American Highr-Income opinion, stating that “the fact that SEC filings and related press releases could have been received and read in Delaware is insufficient to find that Delaware is a proper venue for the director defendants.” Id. at *2. Additionally, plaintiffs contend that when courts have found jurisdiction under § 78aa based on the dissemination of false or misleading materials, they have, in fact, based their decision on an allegation by plaintiffs or an offering of proof that the materials were received and read by plaintiffs in the district. This argument is unpersuasive. To begin with, plaintiffs misread American Higlu-Income. That case focused not on whether there was a showing that any plaintiffs had read and relied on misleading statements in the forum state, but rather whether the plaintiffs there had alleged a link between the defendants in that action and the disseminated materials. The plaintiffs in American High-Income contended that the dissemination of materials by Breed Technologies, Inc. in Delaware established venue under § 78aa. The court disagreed, noting that Breed Technologies was not a defendant in the action and that, significantly, there was no alleged connection between the misleading materials and the defendants. Id. at *2-3. In the court’s words, plaintiffs did not allege that “any of the defendants in the present action received or read anything related to the alleged fraud in Delaware.” Id. at *2. In short, the American High-Income holding hinges on whether any of the defendants read or received the allegedly false material, i.e. committed any act in the forum; that opinion does not hold that venue in a district under § 78aa requires evidence that a plaintiff must have read and relied on the misleading materials in that district. Equally unpersuasive is plaintiffs’ assertion that the cases upholding venue in a district uniformly involve plaintiffs who read and relied on the materials in that district. Although many cases involve such an allegation, it does not follow that it is a statutory venue requirement. Significantly, none of the cases explicitly state that such reliance by plaintiffs in the district is required for venue under § 78aa. Moreover, at least one case clearly refutes plaintiffs’ contention in this regard. In Kogok v. Fields, 448 F.Supp. 197 (E.D.Pa.1978), venue was found to be proper in the Eastern District of Pennsylvania based solely on the mailing of materials to non-parties in that district, even though plaintiffs all resided in Washington D.C. and “[n]one of the shares of the TDA stock in question were purchased in the Eastern District of Pennsylvania.” Id. at 198-99. On these facts, the Kogok court found that “the mailing of even one such material report into this district would be sufficient to sustain venue.” Id. at 200. Yet another reason for rejecting the contention that § 78aa requires reliance within the forum is plaintiffs’ invocation of the fraud-on-the-market theory to establish reliance under the Act. It would, in these circumstances, be illogical and inequitable to require rebanee in the forum for venue purposes, but then to excuse plaintiffs from demonstrating specific reliance in connection with the merits. Put differently, plaintiffs’ reliance on a fraud-on-the-market theory is fully consistent with construing § 78aa to abow suit to be brought in any forum to which the allegedly misleading material is disseminated. Such a construction of § 78aa also appropriately gives effect to the section’s evident purpose, namely to allow courts “to gather complex securities litigation in a single forum.” Bolton v. Gramlich, 540 F.Supp. 822, 846 (S.D.N.Y.1982). In sum, to estabbsh venue under § 78aa defendants need only show that the allegedly false or misleading information was transmitted into the Southern District of Indiana. This record plainly includes such a showing. Accordingly, venue is proper in the Southern District of Indiana under § 78aa, and thus that district is one “in which the action could have been brought” for the purposes of 1404(a). The question remains, of course, whether such a transfer under § 1404(a) furthers “the convenience of parties and witnesses” and is “in the interests of justice,” as required by § 1404(a). The Clerk is directed to send a copy of this Memorandum Opinion to all counsel of record. . See In Re AES Securities Litigation, Civil Action No. 02-1485 (E.D.Va. December 12, 2002) (Order). A seventh subsequently filed action, Hawkins v. AES Corp., et al., Civil Action No. 02-1775 (E.D.Va. December 4, 2002), was inadvertently omitted from the consolidation order, and is therefore included here in the term “consolidated actions.” . Three of the Indiana actions involve a class of plaintiffs somewhat different from the class and class period alleged in the instant consolidated actions, but charge precisely the same defendants with concealing from the market essentially similar information concerning AES's United Kingdom operations and the adverse effect of new United Kingdom legislation. See Stafford, et. al. v. Bakke, et al., Civil Action No. 02-1132 (S.D.Ind. July 23, 2002); Patai v. Bakke, et al., Civil Action No. 02-1361 (S.D.Ind. September 3, 2002); Grady v. Bakke, et al., Civil Action No. 02-1417 (S.D.Ind. September 12, 2002). Somewhat more distantly related are Cole, et al. v. IPALCO Enters., et al., Civil Action No. 02-1470 (S.D.Ind. September 24, 2002); Nelson, et al. v. IPALCO Enters., et al., Civil Action No. 02-0477 (S.D.Ind. March 29, 2002). . It is instructive to contrast the breadth of this provision with the plainly narrower general venue provision. See 28 U.S.C. § 1391 (providing for venue in a district "in which a substantial part of the events or omissions giving rise to the claim occurred"). . See also Hilgeman v. National Ins. Co., 547 F.2d 298, 301 (5th Cir.1977) ("The 'act' contemplated by the statute need not be crucial, nor must the fraudulent scheme be hatched in the forum district.”) (citations omitted); Miller v. Asensio, 101 F.Supp.2d 395, 404 (D.S.C.2000) (citing Hilgeman); Carty v. Health-Chem Corp., 567 F.Supp. 1, 2 (E.D.Pa.1982) (holding that one material act suffices); First Federal Savings & Loan Assoc. of Pittsburgh v. Oppenheim, Appel, Dixon & Co., 634 F.Supp. 1341, 1350 (S.D.N.Y.1986) ("[A]ny non-trivial act in the forum district which helps to accomplish a securities law violation is sufficient to establish venue.”). . See also Firemen’s Annuity & Benefit Fund of Chicago v. Union Planters Nat’l Bank, 1987 WL 4990 (N.D.Ill. June 1, 1987) (same); S-G Securities, 466 F.Supp. at 1121 (holding that the "transmission of press releases into the district and the publication thereof within this district through the Wall Street Journal and the Dow Jones broad tape” was a material part of the claimed violation); Mitchell v. Texas Gulf Sulphur Co., 446 F.2d 90, 106 (10th Cir.1971) (same); Carty, 567 F.Supp. at 2 (finding venue proper because allegedly misleading annual and quarterly reports and a prospectus were sent into the district); In re Triton Ltd. Sec. Litigation, 70 F.Supp.2d 678, 686-87 (E.D.Tex.1999) (finding venue proper because allegedly misleading press releases were sent into the district); Kogok v. Fields, 448 F.Supp. 197, 199 (E.D.Pa.1978) (finding venue proper "based on the mailing of proxy statements, quarterly and annual reports and prospectuses” into the forum). But see Miller, 101 F.Supp.2d at 404-07 (finding venue improper when based solely on the access within the forum of information that was posted on the defendants' passive website located outside the forum). The Miller court's ruling hinges on a finding that the mere posting of such information on a passive website cannot constitute an “act” under § 78aa. Id. at 407. . The cases also make clear that the act of disseminating materials is not limited to the location where the information was released. See, e.g., Mitchell, 446 F.2d at 106 (forum proper in Utah based on materials published in the Wall Street Journal and released on the Dow Jones broadtape). As noted in Oxford, press releases are "intended to be read and relied upon by people even outside the judicial district where [they are] issued, since the nature and function of a press release is to diffuse information.” Oxford, 372 F.Supp. at 197. . Breed Technologies filed for bankruptcy ten months before the complaint was filed, and thus was not a party in the action, although three of its directors are included as defendants in the action. See id. at *1-2 n. 3. . See, e.g., In re Triton, 70 F.Supp.2d at 686 ("information ... did enter [the district] and was relied on by persons [in the district.]”); Carty, 567 F.Supp. at 2-3 (plaintiffs allege receiving the information in the district); Mitchell, 446 F.2d at 95-96 (plaintiffs testified that they were aware of the information); Oxford First, 372 F.Supp. at 198 (defendants knew or had reasons to know that plaintiffs would rely on information); Nuveen, 1986 WL 5780 at *3-4 (defendants knew or should have known that plaintiffs would rely on the information); Hilgeman, 547 F.2d at 302 (plaintiff sent check in response to annual premium notice); Firemen’s Annuity, 1987 WL 4990 at *2 (plaintiff responded to direct solicitation).

1306814-8418

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

6719372-9643

PUTNAM, Circuit Judge. This appeal relates to the construction and application of paragraphs 279 and 508 of the customs act of 1897, as follows: “(279) Tallo-w, three-fourths of one cent per pound; wool grease, including that known commercially as degras or hrowp wool grease, one-half of one cent per pound.” “(568) Grease, and oils (excepting flsli oils), such as are commonly used in - soap making or in wire drawing, or for stuffing or dressing leather, and which are fit only for such uses, and not specially provided for in this act.” Unfortunately, the record does not contain the invoices; but we gather from it that the importation tvas invoiced partly as “hard yellow grease,” and partly as “white grease.” How much there was of each, we are not advised. It is enough, perhaps, to remark that neither party seems to claim any substantial distinction, and what we find in the record in reference thereto is that the “white grease” is the “hard yellow grease” bleached. The controversy originated at the port of Boston, where the collector classified the entire importation as “wool grease.” The record shows that “hard yellow grease” had been imported at Boston for some time, and always classified as “wool grease.” It was also testified by Mr. Hopkins that it was classified under the customs act ■of 1894 as “wool grease, free.” Wool grease and its origin are perhaps best described by the following extract from a technical work published in London, cited by the United States: “Wool fat is tlie natural grease contained in sheep’s' wool. In the course ■of preparing the raw wool for spinning, this grease is removed by means of dilute soap (or sodium carbonate) solutions, or by extraction with volatile .solvents. In this country the suds from wool scouring are collected in large tanks, and, by acidulating with mineral acids, ‘brown grease,’ or ‘recovered grease’ is obtained, of varying composition, according as tlie suds from the wool are kept separate, or are mixed witli tlie soap suds from the scoured woven goods, as is the case in those woollen mills where wool is washed, spun, and woven.” Tlie word “'degras,'’ found in paragraph 279, has had, to some extent, a generic meaning, and is not always limited to wool grease or its products; but, in the trade of the United States, “degras” and “brown grease,” found in that paragraph, have now like signification, and each is the .equivalent of what is known commercially as “wool grease.” Indeed, the proofs show that, in trade, “degras,” “brown wool grease,” and "wool grease” have an identical meaning, although “degras” or “wool grease"’ is not always brown. There is no suggestion to the contrary in the record; and this is an important fact to be considered, because it determines that in construing paragraph 279 we must understand the words “including that known commercially as degras, or brown wool grease,” to cover all “wool grease” as known in the trade at the time of the passage of the act of 1897. The United States claim that tlie inqiorts under consideration are the residuum of the distillation of the suds to which we have referred, tliat what goes over in the distillation becomes what is ordinarily known in trade as “wool grease,” and (hat the residuum is truly and substantially wool grease, and nothing else. It may well be said that this is not controverted by the importers, and that they rest their case on the proposition that, although the residuum is wool grease, yet it is not the wool grease1 known to trade. They are supported in this proposition by the testimony of Mr. Webster, an examiner in the United States appraiser’s office at New York,, who was called in behalf of the United State's before the appraisers. He said that he was not acquainted with the articles in controversy here, that he should not consider them to be what is known commercially as “wool grease,” and that they differ from what is so known, in color and in viscosity, and are hard substances, while what is known as “wool grease” is more of the consistency of molasses or soft lard. Mr. Leonard, one of the importers, also testified that the articles in controversy would not be a good delivery for what is known in trade as “wool grease.” On the other hand, it is clear they have never received a commercial designation within the rules pertinent thereto which concern the construction of customs acts. It appears by the testimony of Mr. Leonard that the quantity produced is small, and that the importers in this case have the exclusive control of’ it in (his country. Tt also appears that they invoice it as “hard yellow grease” and as “white grease”; tmt, on the other hand, it appears, as we have seen, that until this controversy arose it was always classified at tlie customs in I ios ton as “wool grease.” If the article had a commercial designation, differing from the expression .“wool grease,” this, by the well-settled rule, would have very great weight in determining the question before us, and might compel an application of paragraph 279 different from that which we must give it. But it is, of course, apparent that it is not to he expected that any so-called commercial designation is within the contemplation of congress in enacting a customs act, unless it has in some way obtruded itself upon public attention. We have the subordinate rule, restated in Sonn v. Magone, 159 U. S. 417, 420, 421, 16 Sup. Ct. 67, 40 L. Ed. 203, that a commercial designation is not to prevail unless it appears that it is the result of established use in commerce, and that such use is definite, uniform, and general in the trade, and not partial, local, or personal. Therefore, on the most favorable view of the facts which can be taken for the importers on this appeal, it is apparent that there is nothing in these rules of interpretation which can assist them, in view of the peculiar phraseology of paragraph 279, which we will consider later. Coming now more closely to the substantial character of the importations, we find the testimony of Mr. Hopkins, who is a special examiner of drugs and chemicals in charge of the United States laboratory at Boston, which is in no way contradicted. He testified that, on the distillation of which we have spoken, a yellow wool grease comes over, and a yellow residue is left in the kettles, and that this residue is still wool grease, as is proven by its analysis by chemical tests and- distillation by superheated steam: Referring to this fact, Charles S. Bush, who is engaged in this trade and in kindred merchandise, .testified that his concern had been making laboratory experiments with superheated steam, trying to break up “degras or wool grease,” and that they have never succeeded in doing so. Mr. Leonard also described the entire operation and its commercial effect quite clearly, showing that the importation is a certain residuum, that it had been considered of no special value until finally brought up and washed, that “yellow grease” and “white grease” are a little higher than “ordinary degras or wool grease,” and that it- is higher in price on account of its hardness, and because it has uses as hard grease. But there seems to be no particular difference on this point, the importers resting their case on the contention that, whatever the articles are in truth and substance, they are not “wool grease” as known to the trade; and we have gone into this fully in order only that the true nature of the imports may be better explained. The result is that what comes over from the distillation is, both in the trade and in truth, wool grease; that the residuum has not been known in the trade as “wool grease,” but that it is in fact wool grease, and is used for the same purpose as what comes over, — that is, for stuffing leather. Indeed, the importers, in order to bring their case within paragraph 568, must and do rest it on the proposition that their imports .are truly and substantially grease, and are used for stuffing or dressing leather. Being grease, it is, from the very nature of the thing, in truth, wool grease, and it can be nothing else. Therefore the importers necessarily agree with the proposition of the United States .that the substance of the residuum is, in truth, the same, as the substance of the distillate known in the market as “wool grease,” and ¡that it has not been changed by the distillation or the subsequent washing and pressing. It follows that it comes precisely within the letter of paragraph 279, and it can be excepted from it only on one of two theories: One is that it has a definite trade designation, which is not “wool grease,” -which, under the rules given by the supreme court, we have shown, is not the fact; and the other is that the terra “wool grease,” in paragraph 279, is limited to “wool grease”' known lo the trade, so that it includes no imports which are not so known, like those in question here. This is met by the clear phraseology and intent of paragraph 279. We have already shown that the expression contained therein, “degras or brown wool grease,” covers all the wool grease known lo tire trade. Therefore, inasmuch as, by the very terms of paragraph 279, the general expression “wool grease” is stated to include what is commercially known as “wool grease,” the paragraph can have no construction except a generic one, so as to cover everything which is, in truth and in substance, wool grease, and which is not definitely known to the trade under some other name. As these imports are not so known, it follows that they are within the meaning which must be given to tiie expression “wool grease” as found in this paragraph.

1635263-27280

SPOTTSWOOD W. ROBINSON, III, Circuit Judge: This appeal summons us to adjudge the validity of an oral agreement between a taxpayer and an official of the Internal Revenue Service (IRS) purporting to compromise a disputed income tax liability. The United States Tax Court held the agreement ineffective on the ground that the official lacked authority to enter into it. We affirm. I The taxpayer, Pierre Boulez, is a citizen of France and a world-renowned music director and conductor. In 1971, Boulez contracted with Beacon Concerts, Ltd., a United Kingdom corporation, to serve as director and conductor for musical organizations selected by Beacon. The latter in turn contracted to provide Boulez’s services to the New York Philharmonic Symphony and the Cleveland Orchestra, both United States corporations. For tax years 1971 and 1972, Boulez was a nonresident alien for purposes of United States income taxes. During those years, Beacon received $207,473 for Boulez’s performances in the United States and, after deducting its expenses and commissions, paid Boulez $188,495. Boulez filed United States nonresident alien income tax returns for 1971 and 1972, but did not include in his gross income any of the monies Beacon received or paid to him for his services. Boulez continued to perform in the United States for the New York Philharmonic Symphony during 1973, 1974 and 1975. He filed nonresident alien returns for the 1973 and 1974 tax years, and again failed to report any amount received by or from Beacon. In 1975, IRS launched an investigation of Boulez’s tax obligations respecting the monies flowing through Beacon. Boulez obtained counsel, who engaged in a protracted series of negotiations with IRS on Boulez’s potential tax liability and assertedly reached an oral compromise with IRS’s Director of International Operations. Boulez claims that he was to file amended returns for 1973 and 1974 including in gross income the amounts paid to Beacon for his services in the United States; and that, in exchange, no adjustments were to be made by IRS, no payments for years prior to 1973 would be required, and no penalties for late filing or payment would be assessed. Boulez then filed amended 1973 and 1974 returns conforming to the compromise and remitted $53,841 in additional taxes. Appended to the amended returns was a letter from Boulez’s counsel stating that these returns were “in accordance with [counsel’s] conversation with” the Director. Thereafter, Boulez did not oppose inclusion in his gross income for 1973 and years following of the amounts paid to Beacon for his performances in the United States. He did not resist the applicability of any income tax convention to Beacon’s receipts for or payments to him, nor did he seek any refund of taxes paid in consequence of the compromise. Ultimately, he terminated his arrangement with Beacon and personally assumed the obligations imposed on Beacon by the contract with the Philharmonic. In 1977, IRS commenced an unrelated audit of Boulez’s 1975 return, and later expanded it to an examination of his 1971 and 1972 returns. In 1978, IRS issued a notice of deficiency informing Boulez that he owed additional taxes for 1971 and 1972. Underlying the notice was a determination that Boulez should have included in his gross income for those years amounts paid to Beacon for his performances in the United States. Boulez challenged this ruling in the Tax Court and moved for summary judgment on two grounds. He claimed that the 1976 oral agreement, which purported to settle any tax liability for 1971 and 1972, constituted a binding compromise. Alternatively, Boulez asserted that if the agreement was not a bar, IRS was equitably estopped from assessing the deficiency because Boulez had relied upon the agreement and changed his position to his detriment. The Tax Court held in favor of the Commissioner, reasoning that the Director of International Operations lacked authority to bind IRS by means of an oral agreement, because Treasury Regulation § 301.7122-1(d) requires offers and acceptances of compromise to be in writing. Prom this decision, Boulez now appeals. II Boulez presses two arguments in an effort to demonstrate that the Tax Court erred in refusing to grant summary judgment in his favor. He first contends that the Treasury Regulation § 301.7122-l(d) is invalid for inconsistency with Section 7122(a) of the Internal Revenue Code which, he says, sanctions oral compromises. He further contends that even if the regu lation imposes a valid limitation on statutory authority to compromise, it is merely directory, and that a delegation order empowered the Director of International Operations, as the Commissioner’s delegate at the time of the agreement, to accept Boulez’s oral offer of compromise and thus to bind the agency. We agree with Boulez that the statute does not of its own accord forbid oral compromise agreements, but conclude that the regulation, which requires that all compromises be reduced to writing, has the force and effect of law, and that the Director lacked authority to waive it. The Commissioner argues that Section 7122(a) of the Code manifests the intent of Congress to outlaw oral compromise agreements. The Commissioner concedes, as he must, that the section does not expressly call for a writing, but he maintains that when viewed against the backdrop of its legislative history, it should be read to incorporate that requirement. The question thus posed appears to be one of first impression. Undeniably, Section 7122(a) is facially ambiguous. It does not specify that compromise agreements must be in writing, nor does it explicitly sanction oral settlements. The legislative history, although cited by the Commissioner in support of his position, does not plainly settle the question either. When, more than a century ago, the provision authorizing compromise agreements was first drafted, the bill made the written opinion of the Solicitor of Internal Revenue prerequisite to a valid compromise agreement. This particular requirement appears to be the only precondition Congress considered incorporating into the statute. It was deleted from the final version, however, and has not reappeared in any successor statute. We can find no suggestion that Congress, in the course of its deliberations, otherwise considered the form that compromise agreements should take. We thus are persuaded that Congress left to the Secretary of the Treasury the task of promulgating regulations addressing the requisite manner of offer and acceptance of compromises. III The Secretary has issued Treasury Regulation § 301.7122-l(d), which specifically requires a written offer and acceptance. Boulez acknowledges that the compromise upon which he relies did not satisfy this demand, but claims that the regulation conflicts with the statute. Boulez further claims that breach of the regulation should not affect the validity of the compromise agreement because the regulation is merely directory in character and because in any event the Director, as the Secretary’s delegate, had authority to waive it in his instance. We find each of these arguments unpersuasive. We address first the contention that the regulation contravenes the intent of Congress. To prevail on this argument, Boulez must overcome the strong presumption of validity to which Treasury regulations are entitled. The Supreme Court has con sistently declared that a Treasury regulation must be complied with unless the taxpayer can demonstrate that it is “ ‘unreasonable and plainly inconsistent with the revenue statutes.’ ” It is evident that Boulez has not discharged this burden. The crux of his argument is that Section 7122 sanctions oral compromises and that the Secretary cannot by regulation impose additional requirements that undermine the congressional purpose. To be sure, courts will not hesitate to invalidate treasury regulations that do not reasonably adhere to statutory dictates or which frustrate legislative objectives, but this case presents neither situation. Congress, in enacting Section 7122, empowered the Secretary to compromise disputed tax liabilities, but left to the Secretary the mechanics of effecting settlements. In turn, the Secretary in specifying in Treasury Regulation § 301.7122-1(d) that all offers of compromise be submitted and accepted in writing, simply defined the form that compromise agreements must take. We find the requirement of a writing entirely reasonable, and a wholly permissible interpretation of Section 7122. When, therefore, the parties negotiated the compromise of Boulez’s 1971-74 tax liability, they did so subject to the terms of the regulation, one of which is that the compromise agreement be in writing. Moreover, the regulation provides that “offers in compromise shall be submitted on forms prescribed by the Internal Revenue Service ...” and warns that “[a]n offer in compromise shall be considered accepted only when the proponent thereof is so notified in writing.” In the face of so unambiguous a mandate, we must adjudge the oral compromise devoid of binding effect unless for some reason it did not obtain in this case. Acknowledging the compromise in issue was never reduced to writing in accordance with the strictures of the regulation, Boulez contends the oversight was inconsequential. The regulation, he asserts, is merely a procedural specification, directory and not mandatory in nature, whose breach should not affect the enforcement of the compromise agreement. To demand full compliance with its terms, he says, is to adhere to a “technical procedural approach” that “‘would [ ...] sacrifice the principle of compromise to [the] mere form of procedure.’ ” We emphatically reject Boulez’s characterization of the regulation, as well as his estimate of the significance of its breach. The authority on which Boulez relies in labeling the regulation directory concerns, not Part 301, but Part 601 of the Treasury regulations, otherwise known as the “Statement of Procedural Rules.” Part 601 rules differ significantly from the regulations here in question. Issued by the Commissioner, without need for approval by the Secretary, they serve merely as guidelines for conducting the internal affairs of the agency. The authority of the Commissioner to issue such rules derives from a statute empowering him to promulgate rules “for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use and preservation of the records, papers, and property.” As such, the Statement of Procedural Rules is held to be directory, not mandatory in nature. By contrast, it is the Secretary who possesses the authority to “prescribe all needful rules and regulations for the enforcement” of the internal revenue laws. These regulations, when consistent with and reasonably adapted to enforcement of those statutes, have the force of law. Treasury Regulation § 301.7122-l(d), promulgated by the Secretary pursuant to this statutory grant, announces the prerequisites to binding compromises under Section 7122. Its terms are mandatory, not directory in character. Boulez’s claim that exacting compliance with the writing requirement of Treasury Regulation § 301.7122-l(d) reflects a “technical procedural approach” to the Treasury regulations is simply untenable. We are not dealing with a mere housekeeping provision, but with a fundamental tenet of formalizing agreements. Unlike procedures governing the internal affairs of IRS, the writing requirement of Treasury Regulation § 301.7122-l(d) confers rights and imposes liabilities on third parties — as Boulez would be the first to insist if tables were turned and IRS invoked an oral compromise agreement against him. Conditioning the enforceability of Section 7122 compromise agreements on compliance with the writing requirement of Treasury Regulation § 301.7122-l(d) hardly evinces a hypertechnical approach to application of the rules. IV Boulez nonetheless maintains that even if the regulation is not precatory in nature, the Director of International Operations had authority to waive it in his instance. He asserts that Delegation Order No. 11, which empowered the Director to accept offers to compromise under Section 7122, does not confine itself to instances of full compliance with applicable regulations, and thus enabled the Director to enter into the oral agreement with Boulez’s counsel. Put another way, Boulez insists that the Director’s authorization was not limited by Treasury Regulation § 301.7122-l(d). This argument is flawed in two respects. First, the power conferred by Delegation Order No. 11 to enter into compromise agreements is sharply circumscribed by Revenue Procedure 64-44: This is a “limited” delegation to the extent that the delegated authority must be exercised in accordance with the limitations prescribed by section 301.7122-1 of the Regulations on Procedure and Administration and with procedures established by the National Office. Since the regulation calls for compromise agreements in writing, it is clear that the Commissioner, in delegating to the Director authority to compromise disputed tax claims, could not have intended that it could be exercised in contravention of the regulation. To circumvent the limiting language of Revenue Procedure 64-44, Boulez points out that it specifically referred to Delegation Order No. 11 (Rev. 3), and argues that it was “rendered obsolete” by Delegation Order No. 11 (Rev. 4), the order in effect at the time of the compromise agreement in suit. Boulez contends that because Revision 4 did not contain the phrase “subject to limitations contained in applicable regulations and procedures,” the authority of the Director of International Operations was not curtailed by Treasury Regulation § 301.7122-l(d). We may easily reject this argument. We are in complete accord with the Tax Court’s conclusion that “in light of the clear reference to the limitations prescribed by sec. 301.7122-1, Proced. & Admin.Regs., set forth in Rev.Proc. 64-44, repetition of that language in subsequent revisions of Delegation Order No. 11 would have been superfluous.” Revenue Procedure 64-44 continued in force at all times relevant to this case and was not superseded until 1980 when Revenue Procedure 80-6 was issued. Significantly, Revenue Procedure 80-6 contains virtually identical language, requiring the delegated authority to be exercised in accordance with the strictures of Treasury Regulation § 301.7122-1. More deeply, Boulez’s assertion that the delegation order empowered the Director to waive application of the writing requirement — either because the order lacked restricting language or by virtue of some authority inherent in its terms — misconceives the nature of the delegation here. Whatever discretion the delegation order conferred upon the Director was discretion to compromise claims of tax liability, not the procedure by which compromise agreements were to be formalized. Acting in contravention of a regulation governing execution of compromise agreements, the Director was as much without authority to join in the oral arrangement with Boulez’s counsel as he would have been had power to compromise never been delegated to him. On this appeal, Boulez has abandoned the estoppel arguments he urged upon the Tax Court, and so relieves us of the necessity of addressing them here. He does, however, renew his equitable arguments in the form of a policy argument to the effect that taxpayer confidence in the revenue system is best served by enforcement of oral agreements of the character at issue. We think, to the contrary, that confidence in the system is promoted by even-handed application of publicly-accessible regulations, especially where, as here, their purpose is to minimize disputes over the existence and terms of agreements between taxpayers and the Government of the type giving rise to the instant litigation. Indeed, when a compromise of tax liability is at issue, the need for rigorous compliance with pertinent regulations may be at its greatest, for not only the integrity of the public fisc but also public faith in the equitable enforcement of the tax laws hangs in the balance. The writing requirement of Treasury Regulation § 301.7122-l(d) is a legally reasonable and an administratively sound condition to attach to exercises of delegated authority to compromise disputed tax liabilities, and justice is plainly served by consistent adherence to it. The judgment of the Tax Court is accordingly Affirmed. . Boulez v. Commissioner, 76 T.C. 209 (1981). . Joint Appendix (J.App.) 43-44. . J.App. 44. . J.App. 44. The contract was a "loan-out” agreement — one in which an artist contracts with a management company to arrange his bookings and consents to render services at the company’s direction. See J.App. 101-105 (agreement between Boulez and Beacon). . J.App. 43^14, 106-132. . J.App. 43. . See Brief for Appellee at 3 & n. 1. . J.App. 47. Boulez expended $85,515 in performing in the United States in 1971 and 1972. Id. . J.App. 50-62; Brief for Appellee at 3. See Rev.Rul. 74-330, 1974-2 C.B. 278; Rev.Rul. 74-331, 1974-2 C.B. 282. . J.App. 46-47. . J.App. 47. In the course of its probe, IRS requested the Philharmonic to withhold for income tax purposes 30% of the gross amount paid to Beacon for Boulez's services. See J.App. 45. . J.App. 45. . The Commissioner of Internal Revenue stipulated to the existence of the oral agreement, see J.App. 144-147, for the limited purpose of enabling the Tax Court to dispose of his motion for summary judgment. Boulez v. Commissioner, supra note 1, 76 T.C. at 215 n. 9. Consequently, we make the same assumption for purposes of our review. . J.App. 46. This official is now known as the Director, Foreign Operations District, but his duties are unchanged. The Director administers the internal revenue laws on behalf of IRS as they relate to "foreign taxpayers deriving income from sources within the United States." Treas.Reg. § 601.101(a) (1986). . See Affidavit of Irving Moskovitz at 2, J.App. 141. . Boulez v. Commissioner, supra note 1, 76 T.C. at 209-211. J.App. 134. . Letter from Irving Moskovitz to Warren Josephs (Feb. 1, 1977), J.App. 134. IRS accepted the amended returns and imposed no penalties. J.App. 48. . Nor did Boulez contest the applicability to him of Rev.Ruls. 74-330, 1974-2 C.B. 278 or 74-331, 1974-2 C.B. 282, in which the Commissioner explained his position regarding foreign entertainers and loan-out arrangements. See Boulez v. Commissioner, supra note 1, 76 T.C. at 210. . Id. at 210-211. . J.App. 47. . J.App. 47. . Boulez v. Commissioner, supra note 1. Boulez chose to litigate only the legitimacy of the oral agreement; he did not claim entitlement to a refund of any part of the taxes he had paid. 76 T.C. at 211. . Id. . Id. at 211, 214. . Id. at 212-213. See Treas.Reg. § 301.7122-1(d) (1986) (quoted in relevant part infra note 33). . 26 U.S.C. § 7122(a) (1982), providing: The Secretary or his delegate may compromise any civil or criminal case arising under the internal revenue laws prior to reference to the Department of Justice for prosecution or defense; and the Attorney General or his delegate may compromise any such case after reference to the Department of Justice for prosecution or defense. . See Treas.Reg. § 301.7122-l(d) (1986) (quoted in relevant part infra note 33). . In Botany Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 132, 73 L.Ed. 379, 385 (1929), the Court held that an “informal” or “gentlemen’s” agreement made by subordinate agency officials without securing the consent of the Secretary did not constitute a binding agreement under the predecessor of § 7122, Act of July 20, 1868, ch. 186, § 102, 15 Stat. 166, Rev. Stat. § 3229. The Court did not address, however, the validity of oral compromise agreements per se. In McIlhenny v. Commissioner, 39 F.2d 356, 358 (3d Cir.1930), the court, also construing Rev.Stat. § 3229, alluded to the fact that “there was no agreement in writing,” but added “or otherwise.” Country Gas Serv., Inc. v. United States, 405 F.2d 147, 149-150 (1st Cir. 1969), involved the validity of an oral compromise agreement under § 7122, but the court based its rejection of the agreement on the agent's lack of authority and did not discuss the need for a writing. . The precursor of 26 U.S.C. § 7122(a) (1982) may be found in the Act of July 20, 1868, ch. 186, § 102, 15 Stat. 124, 166, and was carried forward into the Internal Revenue Code of 1939 as § 3761. . Senator Sherman, the proponent of this requirement, explained that its purpose was to ensure "that the Commissioner of Internal Revenue shall never make a compromise until after a full and fair investigation." Cong. Globe, 40th Cong., 2d Sess. 3773 (1868) (statement of Sen. Sherman). The object of the provision was “to see that the Commissioner has all the facts before him, prepared by an officer who is supposed to be a lawyer." Id. (statement of Sen. Sherman). In the course of the floor debate that ensued over this proposal, the Senator never addressed the question whether compromise agreements had to be reduced to writing before they were binding. As he understood his amendment, it served only as a check on the power of the Commissioner to enter into settlements: Now we provide that no compromise can be made except with the written assent of the Secretary of the Treasury; and further than that, in order to show that it cannot be done upon insufficient information, we require another officer to file his opinion in writing, setting out certain facts, the basis of the opinion by the Secretary of the Treasury. Id. at 3775 (statement of Sen. Sherman). . The Commissioner relies heavily upon a recently-excised section of a related statute concerning compromises reached after entry of a judgment. 31 U.S.C. § 194 (1976) provided: Upon a report by a United States attorney, or any special attorney or agent having charge of any claim in favor of the United States, showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the General Counsel for the Department of the Treasury, the Secretary of the Treasury is hereby authorized to compromise such claim accordingly.... But this section did not in terms require the Secretary to reduce compromises to writing. Moreover, §§ 194 and 7122 were not enacted contemporaneously, neither provision referred to the other, and § 194 was finally repealed in 1978. Act of Nov. 6, 1978, Pub.L. No. 95-598, § 322(c), 92 Stat. 2549, 2679. We cannot see how this defunct provision, which contained no explicit or implicit requirement of a writing and which dealt only with post-judgment compromises, sheds any light on the legislative intentions animating § 7122(a). . The Commissioner attempts to minimize the omission of a writing requirement in § 7122(a) by emphasizing instead the written-record requirement of § 7122(b): (b) Record. — Whenever a compromise is made by the Secretary or his delegate in any case, there shall be placed on file in the office of the Secretary or his delegate the opinion of the General Counsel for the Department of the Treasury or his delegate, with his reasons therefor, with a statement of— (1) The amount of tax assessed, (2) The amount of interest, additional amount, addition to the tax, or assessable penalty, imposed by law on the person against whom the tax is assessed, and (3) The amount actually paid in accordance with the terms of the compromise____ 26 U.S.C. § 7122(b) (1982). Insisting that creation of a written record is a statutory prerequisite to settlement of a tax dispute, the Commissioner argues that the absence of such a record in this case renders the oral compromise without legal effect. Brief for Appellee at 16. The Tax Court found it unnecessary to resolve this question, Boulez v. Commissioner, supra note 1, 76 T.C. at 214 n. 8. We likewise reserve decision on the question whether § 7122(b)’s call for a written record is directory or mandatory. We note, however, that the Commissioner does not distinguish between the authority to utilize compromise agreements conferred by § 7122(a), which surely cannot be doubted when the agreements are in writing, and the responsibility for maintaining records of such compromise agreements imposed upon the Department of the Treasury by § 7122(b). To the extent that the Commissioner suggests that the taxpayer’s failure to produce a § 7122(b) record invalidates a compromise authorized by § 7122(a), the argument may carry little weight, for noncompliance with § 7122(b) can hardly be reasonably charged to the taxpayer, who is powerless to effect it. . Treas.Reg. § 301.7122-l(d) (1986) in relevant part provides: Procedure with respect to offers in compromise— (1) Submission of offers. Offers in compromise shall be submitted on forms prescribed by the Internal Revenue Service which may be obtained from district directors of internal revenue, and should generally be accompanied by a remittance representing the amount of the compromise offer or a deposit if the offer provides for future installment payments____ (3) Acceptance. An offer in compromise shall be considered accepted only when the proponent thereof is so notified in writing____ . See Reply Brief for Appellant at 19-20. . E.g., Poirier & McLane Corp. v. Commissioner, 547 F.2d 161, 167 (2d Cir.1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063 (1977); Beal Foundation v. United States, 559 F.2d 359, 361 (5th Cir.1977); United Telecommunications, Inc. v. Commissioner, 589 F.2d 1383, 1387 (10th Cir.1978), cert. denied, 442 U.S. 917, 99 S.Ct. 2839, 61 L.Ed.2d 284 (1979). . Commissioner v. Portland Cement Co., 450 U.S. 156, 169, 101 S.Ct. 1037, 1045, 67 L.Ed.2d 140, 151 (1981) (quoting Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct: 695, 698, 92 L.Ed. 831, 836 (1948)); accord Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 533 n. 11, 99 S.Ct. 773, 781 n. 11, 58 L.Ed.2d 785, 796 n. 11 (1979); Fawcus Mach. Co. v. United States, 282 U.S. 375, 378, 51 S.Ct. 144, 145, 75 L.Ed. 397, 399 (1931). . See Reply Brief for Appellant at 19-20. . See, e.g., United States v. Vogel Fertilizer Co., 455 U.S. 16, 102 S.Ct. 821, 70 L.Ed.2d/792 (1982); Rowan Cos. v. United States, 452 U.S. 247, 101 S.Ct. 2288, 68 L.Ed.2d 814 (1981). . See text supra at notes 29-32. . The Secretary has not himself designated officers who may negotiate and accept compromises, but instead has chosen to delegate the task of designation to the Commissioner. See Treas. Dep’t Order No. 150-25, 18 Fed.Reg. 3238 (1953), as amended by Order No. 150-36, 1954-2 C.B. 733. . See Treas.Reg. § 301.7122-l(d) (1986) (quoted in relevant part supra note 33). . Treas.Reg. § 301.7122-l(d)(l) (1986) (quoted in relevant part supra note 33). . Id. § 301.7122-l(d)(3) (quoted in relevant part supra note 33). . Brief for Appellant at 36-38. . Brief for Appellant at 39 (quoting United States v. Wainer, 240 F.2d 595, 598 (7th Cir.), cert. denied, 355 U.S. 815, 78 S.Ct. 15, 2 L.Ed.2d 32 (1957)).

993399-21334

FEINBERG, Circuit Judge: This case raises significant questions regarding the interplay between the powers of a bankruptcy trustee and the policy of United States Arbitration Act, 9 U.S.C. §§ 1-14. Winthrop J. Allegaert, bankruptcy trustee of duPont Walston Incorporated (Walston), appeals' from two orders of the United States District Court for the Southern District of New York, Whitman Knapp, J., which stay the trustee’s action against 20 defendants and, in effect, require the trustee to arbitrate his claims. The trustee’s complaint states various causes of action under federal and state law arising out of the realignment in July 1973, at the alleged instance of H. Ross Perot, of the businesses of Walston and duPont Glore Forgan Incorporated (DGF Inc.), both then securities brokerage firms and members of the New York Stock Exchange, Inc. (NYSE) and the American Stock Exchange, Inc. (Amex). Defendants in the trustee’s suit are Perot, DGF Inc., Electronic Data Systems Corporation (EDS), which is controlled by Perot, the NYSE, several Perot associates and investment vehicles, and the Walston directors who voted in favor of the realignment of Walston and DGF Inc. For reasons set forth below, we conclude that the district court erred in staying all causes of action in the trustee’s suit. Therefore, we reverse the orders of the district court, vacate the stay and allow the trustee’s suit to continue at least with respect to most of the causes of action stated in his complaint. I Background To clarify the issues on appeal, it is necessary to state in some detail the facts as claimed by the trustee in his complaint or as they appear in the limited record before us. The trustee alleges a complex scheme to defraud Walston, under which defendants both siphoned off Walston’s assets to DGF Inc. and also imposed the latter’s liabilities on Walston. According to the trustee, Perot was trying to get out of a disastrous involvement with the brokerage business and was the mastermind behind the scheme. Perot is the founder and controlling stockholder of EDS, which operates data processing systems for corporate customers. In the early 1970’s, Perot invested about $70 million in, and took control of, the brokerage firm later known as DGF Inc. Perot had borrowed most of the money and had pledged EDS stock as collateral, but the value of that stock depended on continued income from EDS’s contract with DGF Inc. By spring 1973, however, DGF Inc. was in bad shape; insufficient capital had brought it to the verge of liquidation. That event would have threatened Perot’s entire financial empire and to avoid it, Perot came up with the scheme (the Perot Plan) that involved Walston, in which Perot was a minority investor. The trustee describes the Perot Plan as a series of unusual transactions by which Walston would assume all front office operations of the two firms and DGF Inc. would assume back office operations. All of the liabilities of DGF Inc.’s failing branch office system would be shifted to Walston, including lease liabilities on many offices, some already closed. Walston would pay DGF Inc.’s expenses and make a $3 million advance on them. In addition, Perot would exchange his non-voting preferred stock in Walston for a new series of preferred stock with more voting rights than all of Walston’s common stock. Thus, the Plan would protect DGF Inc.’s capital against future loss, while Walston would assume immense liabilities. According to the trustee, the Perot Plan was railroaded through the Walston Board of Directors in July 1973 by a vote of 10-9, after insufficient notice of the lengthy and complex realignment agreements and at a Sunday Board meeting that lasted until the early hours of Monday morning, during which the Perot representatives made numerous misrepresentations and omissions of material information and promises of improper benefits. The trustee also alleges and the NYSE, because of its own interest in preserving the capital of DGF Inc., concealed the conclusions of its own staff that Walston’s capital would be completely depleted in eight months if the Perot Plan were adopted. After the Plan went into effect, Walston allegedly lost over $30 million and was forced to liquidate its business. Court Proceedings In March 1974, Walston filed a petition in the United States District Court for the Southern District of New York under Chapter XI of the Bankruptcy Act. Two months later, Bankruptcy Judge Roy Babitt adjudicated Walston a bankrupt and Allegaert was appointed trustee. The trustee asserts that before the realignment agreements went into effect, Walston had an equity of more than $30 million. At the time of bankruptcy it apparently had assets of less than $2 million and creditors’ claims of .over $75 million. Based on this sorry picture, the trustee brought suit in July 1975 against defendants, alleging violations of the Securities Act of 1933, the Securities Exchange Act of 1934, the Bankruptcy Act, the Delaware General Corporation Law, the New York Business Corporation Law, the New York General Business Law and the common law. In October 1975, most of the defendants moved under the United States Arbitration Act to stay the action pending arbitration of the claims alleged in the complaint. These defendants relied upon three arbitration clauses, each of which was allegedly binding upon Walston and, therefore, upon its trustee. The first two were contained in the Constitutions of the NYSE and the Amex and required arbitration of all controversies between exchange members and all controversies between a member , and a nonmember who seeks arbitration of any claim arising out of the member’s business. The third arbitration clause appeared in one of the realignment agreements and covered all disputes arising out of those agreements. Although the NYSE is not a party to the agreements to arbitrate, it moved to stay the trustee’s action on the ground that the arbitration between the trustee and the arbitrating defendants would resolve many of the issues affecting the NYSE and may render moot the action against it. In April 1976, Judge Knapp granted the motion to stay. In a memorandum opinion, he reasoned that the arbitration clauses were enforceable against the trustee and there was no persuasive reason not to do so. Although the NYSE could not compel arbitration, its arguments as to why the action against it should also be stayed were persuasive. This appeal followed. II The trustee’s principal contentions before us are that he is not the same entity as the bankrupt, Walston, and is therefore not bound by the latter’s executory arbitration contracts and that he cannot be compelled, in any event, to arbitrate the claims arising under the Bankruptcy Act and the securities laws. The trustee also claims that the arbitration agreements would not have been enforceable even against Walston. Finally, the trustee argues that even if he must arbitrate his claims against some defendants, the judge should not have stayed the action against the NYSE, which concededly has no right to compel arbitration of the trustee’s dispute with it. Defendants respond that a bankruptcy trustee enjoys no special status which exempts him from the effect of arbitration clauses contained in nonexecutory contracts of the bankrupt, that the Bankruptcy Act and securities law claims are arbitrable, that the arbitration agreements were binding on Walston and the trustee, and that the district court acted properly in staying the action pending arbitration. Finally, defendants say that even if some of the trustee’s claims are not arbitrable, his action upon them should be stayed pending arbitration of all the other issues. These arguments obviously raise a number of substantial questions, but we do not find it necessary to consider most of them. The trustee’s position that he and the bankrupt are different legal entitles is certainly correct. We'said precisely that in Shopmen’s Local 455 v. Kevin Steel Products, Inc., 519 F.2d 698, 704 (2d Cir. 1975), where we pointed out that a bankruptcy trustee is “[a] new entity . . . with its own rights and duties, subject to the supervision of the bankruptcy court.” We again emphasized the point the following month in Brotherhood of Railway Clerks v. REA Express, Inc., 523 F.2d 164, 167 (2d Cir.), cert. denied, 423 U.S. 1017, 1073, 96 S.Ct. 451, 46 L.Ed.2d 388 (1975, 1976). We recognize that the existence of this distinction between the bankrupt and the trustee is not necessarily dispositive. The significance of the distinction hinges on the facts of each situation. But the trustee’s complaint shows the lack of identity to be particularly important here. Seven counts state claims under various sections of the Bankruptcy Act, and charge that the realignment scheme resulted in fraudulent, preferential or post-bankruptcy transfers of Walston’s assets to the Perot interests, which the Act allows the trustee to set aside or recover for the benefit of Walston’s creditors. These are statutory causes of action belonging to the trustee, not to the bankrupt, and the trustee asserts them for the benefit of the bankrupt’s creditors, whose rights the trustee enforces. For example, if there had been no federal bankruptcy proceeding and if a creditor had independently asserted a claim under N.Y. Debt & Cred. Law § 278 to set aside a fraudulent transfer of assets, the creditor would not have been subject to any arbitration agreement. Since the trustee stands in the creditor’s shoes for this purpose, he too should not be compelled to arbitrate these claims. See also Johnson v. England, 356 F.2d 44, 51 (9th Cir.), cert. denied, 384 U.S. 961, 86 S.Ct. 1587, 16 L.Ed.2d 673 (1966). Cf. Buttrey v. Merrill Lynch, Pierce, Fenner & Smith, 410 F.2d 135 (7th Cir. 1969). Moreover, seven counts in the complaint allege, in effect, violations of various anti-fraud provisions of the securities laws. In the context of this case neither these claims nor the Bankruptcy Act claims should be arbitrable. In American Safety Equipment Corp. v. J. P. Maguire & Co., 391 F.2d 821, 825 (2d Cir. 1968), we analyzed at some length the considerations affecting whether a claim was “of a character inappropriate for enforcement by arbitration.” In holding that we would not there compel arbitration of private antitrust claims on the basis of an arbitration agreement made before the claim arose, we examined, among other things, the public interest in-the dispute, the degree to which the nature of the evidence made the judicial forum preferable to arbitration and the extent to which the agreement to arbitrate was a product of free choice. At least the first two of these criteria cut sharply against arbitrability here. This is no mere dispute between private parties with public interest overtones, as in American Safety. We have here a claim by a trustee, appointed under the authority of a federal bankruptcy court, in connection with one of the most celebrated brokerage house failures in the history of Wall Street. And the Bankruptcy Act claims are asserted on behalf of many hundreds of creditors. Unlike an operating business, the trustee employs no witnesses with knowledge of the relevant facts, and he has almost none of the relevant records. Under the Perot Plan, all “back-office” functions — accounting, record keeping, etc. — were performed by DGF Inc., which is now also defunct. Yet the availability of discovery in arbitration is uncertain. The presence of the securities law claims further supports the need for a judicial tribunal here. In Greater Continental Corp. v. Schechter, 422 F.2d 1100, 1103 (2d Cir. 1970), we noted the “strong federal policy in favor of determining stock fraud questions in the federal courts” and observed: This type of question concerning fraud within the meaning of Rule 10b-5 is properly litigated in the courts where a complete record is kept of the proceedings and findings and conclusions are made. It was for that reason that in both the 1933 and 1934 securities acts Congress provided that questions arising under those acts were not to be determined in arbitration proceedings (but rather in the courts) even if the contract between the parties contained an arbitration provision. Section 14 of the Securities Act of 1933, 15 U.S.C. § 77a, see Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953); section 29(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78cc .... Id. It is true that we have recognized a limited exception to the policy behind Wilko v. Swan by allowing arbitration of disputes affecting member firms of stock exchanges. See e. g., Coenen v. R. W. Presspich & Co., 453 F.2d 1209 (2d Cir. 1972); Axelrod & Co. v. Kordich, Victor & Neufeld, 451 F.2d 838 (2d Cir. 1971). In Coenen, plaintiff NYSE member was required to arbitrate his claim against another member for conspiring to force plaintiff to sell stock at a price held unconscionably low by refusing to allow plaintiff to transfer the shares free of a legend stating that registration was required. In Axelrod, a NYSE member firm unsuccessfully resisted arbitration of a claim against it by a nonmember securities firm that charged breach of a stock purchase contract. We held that in these intramural situations the Congressional intent to let the stock exchanges regulate themselves, embodied in section 28(b) of the Exchange Act, creates an exception to the Wilko rule. But the exceptions to the general rule for disputes between brokerage houses over industry matters make sense only when limited to their facts. A claim of wholesale fraud of institutional dimension, especially when raised by a trustee, does not fall within the rationale of the exception. This is more than a mere internal brokerage industry squabble; it raises broad questions of policy which ordinarily should be handled by the judiciary for reasons similar to those why an antitrust claim should not ordinarily be arbitrable. See American Safety Equipment Corp. v. J. P. Maguire & Co., 391 F.2d 821, 825-29 (2d Cir. 1968). Cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 94 S.Ct. 383, 38 L.Ed.2d 348 (1973). Citing Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 & n.4, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), and Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1067-68 (2d Cir. 1972), appellees argue that the trustee’s “shrill cry against arbitration” invites us to return to the discredited notions of a bygone era when courts resisted arbitration to the bitter end. We agree that such judicial hostility to the arbitration process is, and should remain, a thing of the past. We accept without reluctance the “federal policy favoring arbitration,” Carcich v. Rederi a/b Nordie, 389 F.2d 692, 696 (2d Cir. 1968), reflected in the United States Arbitration Act. But such acceptance does not decide this case, which involves the equally significant policies reflected in the securities acts and the Bankruptcy Act. In such a situation, generalities must give way to careful analysis of the different, sometimes competing, public policy interests. Thus, none of the cases stressed so heavily by appellees controls the disposition here, since each depends on its own facts. In Fallick v. Kehr, 369 F.2d 899 (2d Cir. 1966), we allowed an arbitrator to decide in a dispute between private parties whether a debt had been discharged in a completed bankruptcy proceeding. We did so after careful consideration of all the factors involved, including Congressional lack of concern over use of a non-bankruptcy court forum to decide such issues. In any event, we did not hold that Kehr could force Fallick’s bankruptcy trustee to arbitrate that question. Similarly, in Tobin v. Piein, 301 F.2d 378 (2d Cir. 1962), and in Truck Drivers Local 807 v. Bohack Corp., 541 F.2d 312 (2d Cir. 1976), we did not force arbitration upon an unwilling bankruptcy trustee and the trustee was not asserting the type of claims made here under the securities laws and the Bankruptcy Act. The latter is also true of Schilling v. Canadian Foreign Steamship Co., Ltd., 190 F.Supp. 462 (S.D.N.Y.1961). We conclude, therefore, that the trustee cannot be compelled to arbitrate his claims under the securities laws and the Bankruptcy Act. To that extent, the order of the district court staying the trustee’s action was incorrect and should be reversed. The trustee should be allowed to pursue at least these causes of action immediately in the federal district court prior to any arbitration of the remaining claims. Cf. American Safety, supra, 391 F.2d at 828-29. Otherwise, the trustee’s efforts to preserve the estate, of which this action is apparently the major asset, could be prejudiced by loss of evidence or witnesses, and by increased administrative expenses. Our decision, of course, means the trustee’s action against the NYSE should go forward as well since there would then be no sufficient basis for staying it. Finally, since the Bankruptcy Act and securities law claims involve so many of the basic factual and legal issues underlying the trustee’s remaining claims, resolution of the former may make it unnecessary or inappropriate to proceed with the latter in any forum. Under the circumstances, no arbitration. should be permitted at this time. Judgment reversed and case remanded for proceedings consistent with this opinion. . According to the trustee, the NYSE was interested in saving DGF Inc. because its liquidation would have made the Exchange Special Trust Fund liable to Perot on a $15 million note, and the Fund lacked funds sufficient to cover that amount. . Appellees dispute the accuracy of the trustee’s “facts,” pointing out that many of them are mere allegations in a complaint and have not been proved. We, of course, express no view as to whether the trustee’s allegations, particularly those charging fraud and wrongdoing, are correct. . The nonmoving defendants are four former directors of Walston: Douglas E. DeTata, John J. Doughty, D. Tipp Cullen and Allan Blair. . Article VIII, section 1 of the New York Stock Exchange constitution provides: Any controversy between parties who are members, allied members, member firms or member corporations shall, at the instance of any such party, and any controversy between a non-member and a member or allied member or member firm or member corporation arising out of the business of such member, allied member, member firm or member cor poration, or the dissolution of a member firm or member corporation, shall, at the instance of such non-member, be submitted for arbitration, in accordance with the provisions of the Constitution and the rules of the Board of Directors. Article VIII, section 1 of the American Stock Exchange Constitution provides: Members, member firms, partners of member firms, member corporations and officers of member corporations shall arbitrate all controversies arising in connection with their business between or among themselves or between them and their customers as required by any customer’s agreement, or in the absence of a written agreement, if the customer chooses to arbitrate. . Article 10.11 of the Master Agreement provides: Arbitration. duPont and Walston agreed to submit any dispute arising under this Agreement and the Ancillary Agreements or with respect to any of the transactions contemplated thereby to arbitration, in accordance with the provisions of the Constitution of the NYSE and the rules of the NYSE, except that disputes under the Clearing Agreement relating to transactions executed on an exchange other than on the NYSE, which has in its constitution or rules provisions compelling arbitration among members thereof, shall be submitted to arbitration in accordance with the Constitution and Rules of such other exchange. . This was followed by a formal order and a brief supplemental memorandum. . For example, if the parties have terminated or have fully performed under a contract, but have not arbitrated their dispute as the contract’s arbitration clause provides, is the arbitration agreement an executory contract within the meaning of section 70b of the Bankruptcy Act and, therefore, rejectable by the trustee? See Countryman, Executory Contracts in Bankruptcy, Parts I and II, 57 Minn.L.Rev. 439 (1973), 58 Minn.L.Rev. 479 (1974). If not, are there instances in which a bankruptcy trustee is bound by an arbitration clause in an executed contract of the bankrupt? . For example, when the trustee affirms an executory contract under section 70b of the Bankruptcy Act, the difference is minimized; to obtain his rights under the contract the trustee will have to accept the entire contract, including an arbitration clause if the contract contains one. Truck Drivers Local 807 v. Bohack Corp., 541 F.2d 312 (2d Cir. 1976). . Sections 60, 67 and 70. . Three counts allege violations of § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5; one count rests on Section 29(b) of the Exchange Act to void the realignment contract; one count charges violations of Section 17(a) of the Securities Act of 1933; one count is grounded in Section 12(2) of the Securities Act; and one count seeks to impose liability on controlling persons under Section 15 of the Securities Act and Section 20(a) of the Exchange Act.

24128-23548

HENLEY, District Judge. This suit to collect an income tax deficiency, brought by the Government against the defendant, Charles H. Le-high, as authorized by 26 U.S.C.A. (1954) § 6502, and by 28 U.S.C.A. §§ 1340 and 1345, has been tried to the Court and submitted on the pleadings, a stipulation of facts, oral testimony, documentary evidence, and written briefs. This memorandum incorporates the Court’s findings of fact and conclusions of law. The litigation stems from the fact that in the course of an unusually fortunate day at the horse races in Caracas, Venezuela, defendant won the net sum of $293,813. At that time defendant was employed in Venezuela where he had been since January 1952. Relying on section 116(a) of the 1939 Internal Revenue Code, 26 U.S.C.A. (1939) § 116(a), defendant took the position that his winnings were not subject to the United States income tax, and when he filed his 1953 return in 1954, he did not show his winnings as taxable income, although by means of an attachment to the return he advised the Government of his good fortune. In late March 1953 the Internal Revenue Service, in response to an inquiry made by defendant’s father, advised the latter that his son’s winnings were taxable income. In 1955 an audit of defendant’s 1953 return was made, and on August 15, 1955, the Commissioner made a jeopardy assessment of income tax deficiency, penalty, and interest totaling $304,225.76. 26 U.S.C.A. (1954) § 6861, 26 U.S.C.A. (1939) § 273. On August 16, 1955, there was mailed to defendant by ordinary mail addressed to 1415 West Main St., El Dorado, Arkansas, the address shown on the return, a “Statement of Income Tax Due,” IRS Form 17. Shortly after the original jeopardy assessment was made it was discovered that defendant was entitled to an abatement of $87 thereof, which was allowed him. On September 14, 1955, there was mailed by registered mail a formal notice of deficiency, IRS Form 1231, Rev., addressed to defendant at “Apartado 53, Correoseste, Distrito Federal, Venezuela.” That address was wrong since defendant’s actual mailing address in Caracas was Apartado 5375, Correos Este, Distrito Federal, Venezuela. This second notice was never delivered to defendant but was returned to the Internal Revenue Service with an endorsement on the envelope to the effect that it had been addressed to the wrong box. The Government took no further action in the matter until it commenced this suit in November 1960, more than six years after the return was filed and more than five years after the jeopardy assessment was made. The sole defense tendered by defendant is that he was not given proper notice of the assessment upon which the Government’s claim is based, that the failure to give such notice was fatal to the assessment, and that it is now too late for the Government to make any other assessment against him with respect to his 1953 income tax liability. The Government contends that either one or both of the notices mailed to defendant constituted sufficient compliance with the statutory requirements of notice. It appears to be recognized by both sides that, unless there was compliance with the notice requirements of the statute, the Government is not entitled to prevail. See in this connection Merten’s Law of Federal Income Taxation, Rev. § 49.131ff and § 49.146, and authorities there cited. The statutory requirements of notice with which the Court is concerned may be found in sections 6212 and 6861 of the 1954 Internal Revenue Code and in sections 272 and 273 of the 1939 Code. As applicable to this case those sections provide in substance that when a jeopardy assessment is made notice thereof is to be mailed to the taxpayer within 60 days after the making of such assessment. Section 6212(a) authorizes the Secretary of the Treasury or his delegate to mail the notice to the taxpayer by means of registered or certified mail; and section 6212(b) provides, with an exception not here pertinent, that when the notice is mailed to the taxpayer’s last known address, it is sufficient even though the taxpayer be dead or under legal disability. The notice serves the dual purpose of notifying the taxpayer of the Government’s claim and of defining the period within which the taxpayer may apply to the Tax Court for relief. 26 U.S.C.A. § 6213(a). It is settled that where the notice is sent by registered or certified mail to the taxpayer’s last known address it is not necessary that the notice actually be received by the taxpayer. Nor is it necessary that the notice be sent to what is actually the taxpayer’s “correct address.” It is sufficient if it is sent to his “last known address.” But a letter which is simply improperly addressed has no legal efficacy as a notice. Merten’s op. cit. § 49.134. In many instances the “last known address” of the taxpayer is the address shown on the return so that a mailing of a deficiency notice to that address will be sufficient. However, if, after the return is filed, the Government learns that the taxpayer has moved and has acquired a new address, the notice must be sent to that address. Maxfield v. Commissioner of Internal Revenue, 9 Cir., 153 F.2d 325; Commissioner of Internal Revenue v. Rosenheim, 3 Cir., 132 F.2d 677; Welch v. Schweitzer, 9 Cir., 106 F.2d 885; see also Annotation in 24 A.L.R.2d 800, 805ff. When a notice of deficiency is to be given, the Commissioner is required to exercise ordinary care to ascertain the correct address of a taxpayer and to mail the notice to that address. Arlington Corporation v. Commissioner of Internal Revenue, 5 Cir., 183 F.2d 448, and other cases there cited. Where the notice is sent by ordinary mail, as contrasted to registered or certified mail, and is not actually received by the taxpayer, it is plain that the notice is insufficient even though it may have been directed to the correct last known address of the taxpayer. Where the notice is so sent, however, and is in fact received by the taxpayer in time for him to seek a review of the Commissioner’s determination by the Tax Court, the validity of the notice is not clear. Older cases, arising under the Revenue Act of 1924, generally held that actual receipt of an unregistered notice was insufficient. However, in later cases, arising under later statutes, including the 1939 and 1954 Codes, it has been held that the notice is sufficient when it is actually received by the taxpayer in time for him to take his case to the Tax Court. The problem is discussed in Boren v. Riddell, 9 Cir., 241 F.2d 670; see also Tenzer v. Commissioner of Internal Revenue, 9 Cir., 285 F.2d 965, and Merten’s op. cit. § 49.133. The basis of the later holdings is that the older statute, section 274(a) of the Internal Revenue Act of 1924, 26 U.S.C.A. Int.Rev.Acts, provided that the taxpayer “shall be notified of [a] deficiency by registered mail,” whereas under section 274(a) of the Internal Revenue Act of 1926 and under the 1939 and 1954 Codes the Secretary or his delegate is simply “authorized” to use registered (or certified) mail as a means of giving notice. It was thought in Boren that the change in statutory language was not without significance, and that “the heart of the taxpayer’s right is to have actual notice, which enables him to petition his Government, if he so desires.” (241 F.2d 672) In many cases where the question of notice is involved the significance of that question lies in its limitation of a taxpayer’s right to seek relief in the Tax Court. However, in the instant case the question of notice is of controlling importance because of the fact that if proper notice was not given, the assessment was invalid, and by virtue of section 6501(a) of the 1954 Code no new assessment could be made with respect to defendant’s 1953 liability after a lapse of three years beyond the filing of the return in 1954 and after the lapse of such period no valid judicial proceeding could be instituted to collect the tax without assessment. Taking up first the registered notice which was mailed to the wrong address in September 1955, it is the contention of the Government that although the “Apartado 53” address was in fact wrong, nevertheless it was the last address of defendant “known to the Government.” As indicated, when defendant filed his return he authorized, suggested, or invited the Government to discuss his case with his father, and certain discussions in fact were held between the father and one or more agents of the Internal Revenue Service. It is claimed by the Government that in the course of a conversation between Internal Revenue Agent Wilson and Lehigh, Sr. the latter was requested by the former to supply him with defendant’s Caracas address,, and that Lehigh, Sr. gave him the “Apartado 53” address to which the registered notice was mailed. Based on this premise, the Government argues that it was justified in accepting the “Apartado 53” address and was, in fact, required to accept it, and that defendant in the circumstances was bound by the address furnished by his father, even if such address was incorrect. In other words the Government’s contention as to the September notice is based on agency or estoppel. In dealing with this contention the Court is willing to assume that in view of defendant’s suggestion that the Internal Revenue Service discuss his tax problem with his father, he must have foreseen that an inquiry as to his Caracas address might be made of his father by a representative of the Government, and is willing to assume further that the Government had a right to accept as correct any address which Lehigh, Sr. might have supplied and to use that address in giving notice to defendant unless in the meantime it was put on. notice that the address was incorrect. The evidence is in conflict as to whether Lehigh, Sr. in fact gave Agent Wilson the “Apartado 53” address and is not satisfactory on either side. On direct examination Wilson stated positively that the address in question was supplied him by Lehigh, Sr. and that he had the address repeated to him several times so that he would make no mistake about it, that he wrote it down on a piece of paper, and that he incorporated it into his audit report which was introduced in evidence. On the other hand, he stated that he got the information while in Lehigh, Sr.’s accounting office examining returns of persons other than the taxpayer here involved ; and that while the address given him by Lehigh, Sr. was incorporated in the audit report, that report was not prepared in Lehigh’s office but in his own office in another building. Further, he testified that he obtained the address about the middle of June 1955, whereas the audit report was not prepared until August 9, 1955. Lehigh, Sr.’s testimony was taken by deposition in September 1961, more than six years after he gave his son’s address to Wilson, and it appears that Lehigh, Sr. had with the lapse of time forgotten defendant’s correct address in Caracas. Asked what the address was, he stated first that it was “Apartado 5173;” he then corrected himself and said that it was “Apartado 5175.” Both of those numbers were incorrect. He was positive, however, that whatever box number he gave Wilson contained four digits. He testified that he kept his son’s address and the addresses of other members of his family written on a piece of paper or some other material which was pasted on the filing cabinet back of his desk; that Wilson did not look at the paper but called over to him from the desk where he was working on other returns; that when Wilson asked for the address Le-high, Sr. “looked up there and found the address” and called back the address to Wilson; that he spelled out the Spanish words at Wilson’s request; that he did not give Wilson the “Apartado 53” address ; that it was not possible for him to have given only the first two figures of the box number; that he could not have made a mistake about it; that he had to look directly at the piece of paper on which the addresses were written. There is no question in this case that the “Apartado 53” address was completely wrong. It was not defendant’s address and never had been. On the other hand, there is no evidence whatever that Lehigh, Sr. deliberately gave Wilson an incorrect address, or that Wilson intentionally recorded a wrong address and thereafter used it in his audit report knowing, as an experienced agent, that it might be used in sending out a notice of deficiency. Obviously, either Lehigh, Sr. by mistake gave Wilson the wrong address or by mistake Wilson recorded the wrong address. Understandably, neither Wilson nor Lehigh, Sr. is willing to concede that the mistake might have been his. The Court cannot say who made it. Le-high, Sr. may have omitted to give the last two figures of the number 5375, or Wilson may have failed to hear the last two digits, or may have failed to write them down, or when he wrote his report he may have made a mistake in transcribing the figures which he had written originally. Clearly, on this phase of the case at least, the burden is upon the Government to show that Lehigh, Sr. gave Wilson the incorrect “Apartado 53” address, and the Court cannot so find from a preponderance of the evidence. Hence, the Government cannot successfully rely on the September notice as complying with the statute. Moreover, even if it be assumed that Lehigh, Sr. did give Wilson the “Apartado 53” address, there is some evidence in the record which would indicate that before the September notice was mailed, the Government was on notice that the address in question was wrong. As stated, Wilson obtained the address, whatever it was, about the middle of June 1955. On July 6 Wilson wrote a letter to defendant at the “Apartado 53” address, and that letter was returned. The July letter was written more than two months prior to the mailing of the September notice and more than a month prior to the mailing of the original notice on August 16. Making due allowances for the distance between Arkansas and Venezuela and delays in transit and similar matters, it is possible that the letter was returned prior to the mailing of the September notice or even prior to the mailing of the August notice and, if so, such return might well have put the Government on notice that the “Apartado 53” address was wrong and cast upon it the obligation of getting either a better address or going back to the address shown on the return. In that connection it is to be noted that the August notice was not mailed to Caracas but was in fact mailed to El Dorado. On the present state of the record the Court cannot say when the July letter was returned, but the fact that the Caracas address was not used for the August notice may suggest that when the August notice was mailed the Government knew that the “Apartado 53” address was erroneous. It would have been helpful to the Court if the envelope in which the July letter was mailed had been retained and introduced in evidence. Had such been done the Court might have been able to find when the letter was returned and for what ostensible reason. It is not contended that the August 16, 1955, notice was sent by registered or certified mail. Assuming that actual receipt by the taxpayer of an unregistered or uncertified notice satisfies the requirements of the statute, questions are presented as to whether defendant actually received the August 16 notice in time to have applied for a review of the Commissioner’s assessment by the Tax Court, and whether the August notice was sufficient in form and content to constitute a valid notice under the statute. It has been observed that the August communication was a “Statement of Income Tax Due,” IRS Form 17, Rev. The original of that statement was mailed to defendant, and there was introduced in evidence a carbon copy thereof, which copy reflects a pencilled change in one date, and a pencilled notation “87.88,” which apparently refers to the amount of abatement later credited to defendant. While there is no direct evidence on the subject, it seems clear to the Court that the original statement did not contain the pencilled chang-e or the pencilled notation. Since, as it happens, the form and content of the statement have bearing on both of the questions relating to the validity of the statement as a notice, the statement is reproduced as follows: Attention is called to the fact that originally the document reproduced purported to be a statement of income tax due for the year 1954, and that the date “1954” was stricken with a pencil and the year “1953” substituted, the deletion and substitution being made after the original statement had been prepared. The record discloses that the statement was mailed to El Dorado, and there is no reason to believe that it was not delivered there to Lehigh, Sr. Lehigh, Sr. did not deny receipt of the notice, and he said that if he did receive it he sent it on immediately to his son in Caracas. Since Lehigh, Sr. had his son’s correct address,. the inference is permissible that the notice was received by the son in due course and in time for him to have applied to the Tax Court for a review of the assessment. On the record before it, the Court finds that the August notice was received by the elder Lehigh in El Dorado, that it was sent on to defendant at his correct address in Caracas, and that defendant received it well within the 150 day period allowed him by section 6213 (a) for application to the Tax Court. In making this finding the Court is not unmindful of the testimony of defendant himself. On direct examination defendant was questioned about the August 1955 notice. The question put to him was: “Mr. Lehigh, did you receive a notice dated August 15, 1955 of jeopardy assessment of income tax and penalties for the year 1953?” The answer was: “I did not.” The cross examination on this point was as follows: “Q. We have agreed in this case that a notice and demand was sent on August 16, 1955 — you know what a notice and demand is, don’t you ? “A. Yes, I found that out— “Q. You have testified that you never received that; is that correct? “A. That is correct. “Q. It was mailed to your El Dorado address? “A. That is what it was stated in the stipulation — I don’t believe it was. “The Court: Well, if that is what the stipulation shows that is what the fact is. “Q. Now, again you were present at your father’s deposition, do you recall him testifying that if he had received it he mailed that document also to you shortly after receiving it? “A. Yes. “Q. And your testimony again is that you never got the notice and demand ? “A. That is correct. “Q. Do you know how long it takes mail to get from El Dorado, Arkansas to Caracas, back in those days? ****** “Q. I am talking about the kind of correspondence that your father generally sent to you? “A. Five to eight days. “Q. Then if your father had mailed it to you say by the 20th of August you would have had it by the 1st of September, 1955 ? “A. I should have had it then. “Q. I show you a two-page document I have marked plaintiff’s Exhibit No. 3, the original, the first page is a certification, and ask you to look at the second page, do you recognize that as a notice and demand? “A. I received some (sic) similar to this on November 25, 1960, from the local Revenue Service when I requested a copy of whatever documents they had in their file. [Plaintiff’s Exhibit 3 marked for identification.] “Q. Now, you were requested in a subpoena to bring the original of this document — do you have it? “A. No, I do not have it.” If this testimony of defendant be construed as an absolute denial by him that he received the original IRS Form 17 which was mailed to the El Dorado address in August, the Court is called upon to determine whether such denial is sufficient to overcome the evidentiary presumption or inference that if the notice was sent on from El Dorado to Caracas by Lehigh, Sr. it was received by defendant in due course of post. In weighing defendant’s denial it must be remembered that he is the party defendant, and that he has a vital financial interest in the outcome of this case. The evidence discloses that throughout the period of time here involved he was in communication with his father and received other items of mail which his father transmitted to him. There is no evidence that any com munication sent by the father from El Dorado to Caracas was not received by the son. Caracas is a large city in a civilized country, and there is nothing to suggest that the postal employees or other persons there or at any other point along the route that the communication would have taken between El Dorado and defendant’s actual mail box in Caracas were inefficient or likely to misplace the notice. In such circumstances the Court is simply not willing to accept defendant’s denial. On the other hand, if in his testimony defendant simply denied that he received any notice and demand dated August 15, 1955, and referring to a tax deficiency for the year 1953, which is the document described by defendant’s counsel on direct examination, or if defendant is simply denying that he received a document exactly like Plaintiff’s Exhibit 3, including the pencilled deletion of “1954” and the substitution of “1953,” likewise in pencil, and also including the pencilled figures “$87.88,” then defendant is not denying receipt of the actual notice mailed to him. Parenthetically, the Court points out that the notice was not “dated” August 15, 1955, but August 16, 1955. In either event, the Court finds from a preponderance of the evidence that the August 1955 notice was in fact received by defendant, and that he had ample time to apply to the Tax Court for relief had he cared to do so. There remains for determination the question of whether the August 1955 notice was sufficient in form and substance to constitute compliance with the statute. In approaching this question the Court recognizes that the statute does not prescribe any particular form or content of notice, that any form is sufficient if it serves to advise the taxpayer that there has been a deficiency determined or assessed and to advise him of the amount of the deficiency and the year with respect to which such deficiency has been determined or assessed, or at least to give the taxpayer enough information so that he is not deceived as to the taxable period. In Merten’s op. cit. § 49.132 it is said: “The Code does not require that the notice of deficiency be signed or that it be in any special form. Difficulty has sometimes arisen therefore as to whether a notice of deficiency as contemplated by the Code has been sent by the Commissioner. Generally, it may be said that the notice of deficiency contemplated by the Code is a formal communication to the taxpayer concerning the proposed deficiency in tax.” Merten’s then goes on to quote from Commissioner of Internal Revenue v. Forest Glen Creamery Co., 7 Cir., 98 F.2d 968, 971, as follows: “The Commissioner is required to send to the taxpayer, by registered mail, a notice of his determination. The statute does not prescribe either the form or substance of the notice, but we assume that to be a notice, within the intention of the Revenue Act, the communication must inform the taxpayer that a deficiency tax has been determined and either must state the taxable period in respect to which it has been assessed or at least give enough information that the taxpayer reasonably could not be deceived as to the taxable period. 44 44 44

5629121-7566

MEMORANDUM OPINION AND ORDER WINGATE, District Judge. Before the court is the motion of the plaintiff under Title 29 U.S.C. § 1447 to remand this case to the Chancery Court of the First Judicial District of Hinds County, Mississippi, where it originated. On August 31, 1995, plaintiff, Gannett River States Publishing Corporation (Gannett), filed a complaint in the Chancery Court of the First Judicial District of Hinds County, Mississippi, naming as defendants Mississippi State University (MSU); Donald W. Zaeharias (Zaeharias), MSU president; Larry Templeton (Temple-ton), MSU athletic director; and the Board of Trustees of the State Institutions of Higher Learning (The Board). In its complaint, plaintiff, the publisher of The Clarion Ledger Newspaper, alleged that defendants willfully and knowingly denied plaintiff access to a non-exempt public record in violation of the Mississippi Public Records Act, Miss Code Ann. §§ 25-61-1 through 21-61-17 (Supp. 1995). The alleged public record at issue is a letter of inquiry, dated July 18, 1995, from the National Collegiate Athletic Association (NCAA) addressed to Mississippi State Uni versity (MSU). In this letter, the NCAA discusses infractions of NCAA rules allegedly committed by MSU students and alumni. Although the defendants have released portions of the letter, defendants have refused to disclose to the public those portions of the letter which identify the specific students and alumni charged by the NCAA of having violated NCAA strictures. Claiming entitlement to the letter of inquiry without redactions of names and identities, the plaintiff herein seeks access to the complete letter and asks the court to award it the One Hundred Dollar ($100.00) statutory penalty and all reasonable expenses incurred by the bringing of this lawsuit. On September 29, 1995, defendants removed this action to this court pursuant to Title 28 U.S.C. §§ 1331 and 1446. Defendants contend that plaintiffs claims against defendants present a federal question and are removable as such, insomuch as plaintiffs claims arise under the laws of the United States, specifically under the Family Educational Rights and Privacy Act (“FERPA”), Title 20 U.S.C. § 1232g and its resultant federal regulations found at 34 C.F.R. Part 99. Therefrom, defendant concludes that this court has original jurisdiction of this cause of action. Plaintiff contests this assertion and has filed a motion to remand which is the triggering event for this opinion. Having carefully considered the motion, as well as the memoranda of the parties, this court is persuaded that the plaintiffs motion should be granted and that this case should be remanded to the Chancery Court of the First Judicial District of Hinds County. A defendant may effect proper removal of a case from state court to federal district court where the action is one over which the federal district court has original jurisdiction. See Title 28 U.S.C. § 1441(a). A federal district court has original jurisdiction over those civil actions arising under the Constitution, laws or treaties of the United States. See Title 28 U.S.C. § 1331. However, a defendant cannot remove such a case to federal court unless the plaintiffs complaint establishes that the cause “arises under” federal law. Franchise Tax Bd. v. Const. Laborers Vac. Trust, 463 U.S. 1, 12, 103 S.Ct. 2841, 2847, 77 L.Ed.2d 420 (1983). The phrase “arises under” has a specific and special connotation under § 1331. An action arises under federal law for purposes of federal question jurisdiction “if it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends.” MCI Telecommunications v. Credit Builders, 980 F.2d 1021 (5th Cir.1993), quoting Gully v. First National Bank, 299 U.S. 109, 117, 57 S.Ct. 96, 99-100, 81 L.Ed. 70 (1936). See also New Orleans Public Service v. City of New Orleans, 782 F.2d 1236, 1240 (5th Cir.1986), citing Franchise Tax Bd. v. Const. Laborers Vac. Trust, 463 U.S. 1, 12, 103 S.Ct. 2841, 2847, 77 L.Ed.2d 420 (1983) (a case “arises under” federal law when “in order for the plaintiff to secure the relief sought he will be obliged to establish both the correctness and the applicability to his case of a proposition of federal law.”). However, a ease does not arise under federal law on the basis of an anticipated or even an inevitable federal defense. Carpenter v. Wichita Falls Independent School District, 44 F.3d 362, 366 (5th Cir.1995). Consequently, removal is improper where plaintiffs complaint merely asserts that federal law deprives the defendant of a defense he may raise, Franchise Tax Bd., 463 U.S. at 12,103 S.Ct. at 2847 (1983), citing Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908) (“Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiffs original cause of action arises under the Constitution”), or that a federal defense the defendant may raise is insufficient to defeat the claim. Tennessee v. Union & Planters Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894). See also Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986); Baker v. Farmers Elec. Co-op., Inc., 34 F.3d 274 (5th Cir.1994); Anderson v. American Airlines, Inc., 2 F.3d 590 (5th Cir.1993); Diaz v. McAllen State Bank, 975 F.2d 1145 (5th Cir. 1992); Prudentialr-Bache Securities, Inc. v. Fitch, 966 F.2d 981 (5th Cir.1992). In its motion to remand, plaintiff contends that this cause of action should be remanded because it is based, as clearly stated in the complaint, on the Mississippi Public Records Act, codified at Miss.Code Ann § 25-61-1 through § 25-61-17. Plaintiff argues that any mention of the FERPA codified at Title 20 U.S.C. § 1232g is merely to explain and to reject defendants’ anticipated defense for refusing to release the public record. Having carefully reviewed the complaint, this court holds that the complaint clearly demonstrates that the claim for relief is based upon state law. In its complaint at paragraph 6, plaintiff states: 6. Donald Dodd, Sports Editor of The Clarion Ledger, requested the redacted material from counsel for the Defendants, and was told that the material may be precluded from disclosure by the Family Education Rights Privacy Act [sic] (“FER-PA”). Then, in paragraphs 8 and 9 of the complaint, plaintiff states: 8. The information requested is a public record in the possession of a public body, within the meaning • of Miss.Code Ann. § 25-61-3 (1972). As such, it is within the purview of the Public Records Act, Miss. Code Ann. §§ 25-61-1 through -17 (1972 & Supp.1995), and subject to disclosure. 9. FERPA does not prohibit the dissemination of the information requested, as the information does not constitute “educational records” within the ambit of the Act. FERPA is intended to protect records related to academic performance, financial aid, or scholastic probation. The only mention of federal law in the complaint was in anticipation of a defense defendants used when plaintiffs originally requested unredacted records and before the initial complaint was filed. Thus, the complaint does not arise out of federal law, this court does not have original jurisdiction, and removal is, therefore, improper.

4170040-7349

MEMORANDUM AND ORDER REGARDING DEFENDANT’S MOTION TO DISMISS DUE TO IMPAIRED INTEGRITY OF THE GRAND JURY (Dkt. No. 91) PONSOR, District Judge. On April 7, 2009, a federal grand jury returned an indictment against Defendant charging him with possession with intent to distribute more than five kilograms of powdered cocaine. At the same time, the government filed an Information pursuant to 21 U.S.C. § 851(a)(1) identifying two prior convictions, from 1998 and 1992, for serious drug offenses. The Information raises Defendant’s mandatory minimum sentence to life imprisonment without possibility of parole, if he is convicted. Defendant has moved to dismiss the indictment on the ground that the government knowingly presented false information to the grand jury. Because there is no support whatsoever for this claim, and not a scintilla of evidence suggesting misconduct of any kind by the Assistant U.S. Attorneys handling this case, the motion will be denied. Defendant’s argument is rooted in a somewhat complicated state court proceeding that unfolded prior to Defendant’s federal court indictment. In the earlier state Superior Court prosecution Defendant was charged with possession with intent to distribute cocaine, based on the same evidence — over seventeen kilograms of powdered cocaine seized from Defendant’s residence — now at the heart of this federal case. State law enforcement agents seized the cocaine during a search conducted on August 17, 2006 pursuant to a search warrant obtained upon the affidavit of a Massachusetts State Police trooper named Daniel Soto. Trooper Soto stated in his affidavit that on August 17, 2006 a team of law enforcement agents had set up the arrest of a Holyoke, Massachusetts drug dealer, Eugenio Negron, who had made sales of crack cocaine to a cooperating witness. On the day of the planned arrest, according to the affidavit, the arrest team had listened while the cooperator set up the purchase and heard Negron say he needed to go get the drugs. According to the affidavit, officers then tailed Negron as he picked up Defendant at a local bar in Springfield (a city south of Holyoke), went with him to his residence, waited for the Defendant to retrieve the drugs, dropped him off back at the bar, and proceeded back to the agreed-upon location on Essex Street in Holyoke to make the sale, where he was arrested. ■ Once Negron was in custody and found with some fifty grams of crack cocaine — again, according to the affidavit — he immediately agreed to cooperate, identifying Defendant as the source of his drugs and Defendant’s residence as a location where more drugs would be found. Issuance of a warrant to search Defendant’s residence on Putnam Circle in Springfield followed, and the seventeen kilos of cocaine were discovered. Shortly after the state court prosecution commenced, defense counsel moved to suppress the cocaine, based at least in part on alleged misrepresentations and omissions in the Soto affidavit. The state Superior Court Judge took evidence relevant to the motion over several days. According to state court defense counsel (who, along with the Federal Public Defender, currently represents Defendant in this court), the Commonwealth’s Assistant District Attorney badly botched the state’s case during the suppression hearing. Documents the defense was entitled to came late or not at all. Witnesses failed to appear in response to defense subpoenas, despite orders from the Superior Court Judge that they be produced. Ultimately, the state court judge allowed the motion to suppress, finding that certain portions of the Soto affidavit were fabricated. In particular, the state court judge found that Trooper Soto’s description of the surveillance of Negron during his trip to Springfield, allegedly to retrieve the crack cocaine, was “a fiction.” (See Dkt. 76, Ex. 3, at 10.) Significantly, the suppression ruling was based on state law, which, the Superior Court Judge found, required, or might require (the state law is not perfectly clear) that the fruits of a search be suppressed where deliberate falsehoods are discovered in the warrant affidavit, even where the falsehoods were not essential to the probable cause finding. Federal law, the judge correctly observed, is not so stringent, requiring only that probable cause be supported if the alleged falsehoods are excised and disregarded. See Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); U.S. v. Cartagena, 593 F.3d 104, 112 (1st Cir.2010). Under the less strict Fourth Amendment standard, the state judge observed, the affidavit would have been sufficient to satisfy the Fourth Amendment. (See Dkt. 76, Ex. 3, at 14-15.) The Assistant District Attorney in state court, having received an adverse ruling, moved to reconsider, finally agreeing to supply the witnesses that the defense and the court had been waiting for during the original hearing. The state court judge, understandably unwilling to countenance this sort of eleventh-hour gymnastics, denied reconsideration. Following the allowance of the suppression motion in state court, Defendant was re-indicted in federal court, and the state court prosecution was dismissed. It is only fair to observe that both the state law enforcement officers and now the federal prosecutors respectfully but vehemently disagree with the Superior Court ruling regarding the falsity of the search warrant affidavit, and they challenge the correctness of the state suppression ruling. Nevertheless, in presenting the evidence to the grand jury to obtain the indictment in federal court, the Assistant U.S. Attorney forthrightly disclosed to the grand jury the state court judge’s adverse ruling. He also placed before the grand jurors evidence, and at least one witness, that the state prosecutor never made available to the Superior Court Judge. Based on its own independent assessment of the evidence, the federal grand jury returned the indictment now before the court. The gist of Defendant’s motion seems to be that the federal prosecutor engaged in deliberate misconduct and knowingly presented false evidence by offering testimony to the grand jury that contradicted, or was inconsistent with, the earlier finding of the Superior Court judge. As defense counsel now concedes, see note 1 supra, the decision to offer this testimony provides no basis for dismissal and is in no way improper. For one thing, in the very rare instances where a motion to dismiss predicated on misconduct before the grand jury has been successful, the facts are not only more egregious but of an entirely different species. See, e.g., Guarino v. Metropolitan Life Ins. Co., 915 F.Supp. 435 (D.Mass.1995) (granting dismissal of indictment where prosecutor stated to grand jurors that they only had to agree with critical parts of indictment, suggested that grand jury needed to return indictment quickly before statute of limitations expired, improperly characterized evidence, and gave doughnuts to grand jury); United States v. Brodson, 528 F.2d 214 (7th Cir.1975) (upholding dismissal of indictment where government violated federal statute’s wiretap provision by presenting to the grand jury evidence intercepted through wire communications which were not specified by the order of authorization or by the approval of the original wiretap).

688562-13087

SHACKELFORD MILLER, Jr., Circuit Judge. Appellant filed this action in the District Court seeking recovery from the ap-pellee of the sum of $3,588.44, claiming jurisdiction by reason of diversity of citizenship and amount in controversy in excess of $3,000, excluding interest and costs. Diversity of citizenship is not disputed. The District Judge sustained appellee’s motion to dismiss the action for lack of jurisdiction in that the requisite amount in controversy was not actually involved, notwithstanding the amount for which recovery was sought, from which ruling this appeal was taken. The complaint consists of two counts. Count 1 alleges that appellant’s assignors on September 29, 1954, entered into a written agreement with the appellee, Railway Express Agency, under the terms of which the appellee agreed to ship a package of furs from Detroit, Michigan, to a consignee in Owosso, Michigan, but that contrary to the terms of the agreement the appellee did not ship the goods to Owosso but shipped them instead to Muskegon, Michigan; that as a result of said misshipment said goods were never delivered to the consignee; that despite repeated demands the appellee has failed to produce said goods; that the contents of said package were insured by the appellant who, by reason of the foregoing, paid its assignors the sum of $3,588.44 and thereby became subrogated to the rights of said assignors against the appellee to the extent of said payment. The written agreement referred to was the Railway Express Agency receipt for the shipment, which was attached to and made a part of the complaint. Count 2, claiming the same amount in damages, was a tort action based on the alleged negligence of the appellee in failing to deliver the shipment to the consignee and in failing to exercise due care in preventing the theft of the shipment. Each Count contained the statement that the amount in controversy exceeded the sum of $3,000 being $3,588.44, for which judgment was prayed, with interest and costs. The appellee moved to dismiss the action on the ground that the Court lacked jurisdiction because the amount actually in controversy was less than $3,000, exclusive of interest and costs. The motion stated that the Uniform Express Receipt, attached to the complaint, showed that appellant’s assignors declared to the appellee at the time of shipment that the value of said furs was $300, which declaration of value was binding upon the shipper and the appellant. This defense was also later made by answer to the complaint. An affidavit filed in support of the motion stated that under the tariffs applicable to the shipment of “value charge” to be paid to the appellee would have been 18 cents if the declared value was $300 and would have been $6.48 if the declared value was $3,588.44. Appellant filed an answer to the motion to dismiss which alleged that the “declared value” referred to in the motion to dismiss was not binding because the ap-pellee deviated from the agreed route by carrying the goods to Muskegon, Michigan, instead of to Owosso, Michigan. The appellant showed by depositions of two of appellee’s employees the following facts about which there appeared to be no dispute. An employee of the appel-lee received the goods in Detroit for shipment to Owosso and filled out and delivered the Railway Express Receipt therefor, and that he either wrote in the stated value of $300 as stated to him by the shipper or it was already written on the package. He did not explain what route the shipment would go by, other than by passenger train. The train carrying the shipment passed through Owosso about 3 o’clock in the morning and, according to the regular procedure relative to shipments arriving at that time in the night, the shipment was carried on to Muskegon, approximately one hundred miles farther, from which point it would be later returned to Owosso for delivery during the day. However, the shipment was not delivered to any person at Muskegon but was put in a pile of “come-back freight” that was to be sent to Owosso. It was left unguarded and thereafter disappeared. Appellant also filed an affidavit showing the value of the shipment to be $3,520.94, and the payment by appellant to its assignors under its policy of insurance of the sum of $3,-588.44, and moved for summary judgment. The District Judge denied appellant’s motion for summary judgment. Thereafter, he granted appellee’s motion to dismiss the complaint and entered an order which stated, “It appearing to the Court to a legal certainty that plaintiff cannot recover the amount claimed, and that the claim is really for less than the jurisdictional amount for the reason that plaintiff is estopped to deny the $300 agreed valuation on the property in question. It is hereby ordered that the said motion to dismiss be, and the same is hereby granted.” The District Judge cited in support of the ruling, St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845; Lichten v. Eastern Air Lines, D.C., 87 F.Supp. 691; Peyton v. Railway Express Agency, 5 Cir., 124 F.2d 430, and M.S.A. §§ 22.26 and 22.1192, Comp.Laws 1948, §§ 462.7, 469.502. As stated in St. Paul Mercury Indemnity Co. v. Red Cab Co., supra, the well settled rule governing dismissal for want of jurisdiction in cases brought in the federal court is that the sum claimed by the plaintiff controls if the claim is apparently made in good faith, but if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and so that his claim was colorable for the purpose of conferring jurisdiction, the suit will be dismissed. However, the opinion in that case also points out that in order for the court to disregard the amount claimed by the plaintiff it must appear to a legal certainty that the claim is really for less than the jurisdictional amount. In ex planation of this statement, the opinion said, “The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim.” 303 U.S. at page 289, 58 S.Ct. at page 590. (Emphasis added.) Although the case itself did not involve the effect on jurisdiction of the existence of a valid defense to the claim, the statement appears strongly supported by the authorities. In Schunk v. Moline, etc., 147 U.S. 500, 13 S.Ct. 416, 417, 37 L.Ed. 255, the complaint sought recovery from the defendant both for a specified amount which was overdue and an additional amount which was to become payable in the following month, it being necessary for both amounts to be in controversy in order for the jurisdictional amount to exist. In sustaining jurisdiction, the Court said, “Although there might be a perfect defence to the suit for at least the amount not yet due, yet the fact of a defence, and a good defence, too, would not affect the question as to what was the amount in dispute. * * * In short, the fact of a valid defence to a cause of action, although apparent on the face of the petition, does not diminish the amount that is claimed, nor determine what is the matter in dispute; for who can say in advance that that defence will be presented by the defendant, or, if presented, sustained by the court?” In Smithers v. Smith, 204 U.S. 632, 27 S.Ct. 297, 300, 51 L.Ed. 656, the trial judge, without a jury, upon motion of the defendants, heard evidence and ruled that the plaintiff could not recover as much as the requisite jurisdictional amount, finding that the court had no jurisdiction and dismissing the action. In reversing the judgment, the Supreme Court commented upon the authority of the judge to dismiss an action for lack of jurisdiction and said, “Such an authority obviously is not unlimited, and its limits ought to be ascertained and observed, lest, under the guise of determining jurisdiction, the merits of the controversy between the parties be summarily decided without the ordinary incidents of a trial, including the right to a jury.” The Court held that the trial judge in ruling as he did, exceeded his authority under the statute, and in determining jurisdiction, in effect, decided the controversy between the parties as to the amount recoverable upon the merits. This Court has also made similar rulings. In Calhoun v. Kentucky-West Virginia Gas Co., 6 Cir., 166 F.2d 530, we pointed out that jurisdiction must be distinguished from the merits and that unless the claim set forth in the pleading involving the necessary jurisdictional amount is plainly unsubstantial, either because obviously without merit or because its unsoundness results so clearly from court decisions as to leave no room for the inference that the questions sought to be raised can be the subject of controversy, a case is presented within the federal jurisdiction, regardless of the fact that a final judgment on the merits fails to establish the necessary jurisdictional amount. We reversed the ruling of the lower court which dismissed the action for lack of jurisdiction, pointing out that under the state law, it was not apparent to a legal certainty that the plaintiff would not be able to recover the amount claimed, in that even a superficial examination of the applicable Kentucky law disclosed that there was a real legal controversy with respect to the amount of damages recoverable. We ruled later to the same effect in Scottish Union & Nat. Ins. Co. v. Bejcy, 6 Cir., 201 F.2d 163, 37 A.L.R.2d 534, in which jurisdiction by reason of the necessary amount in controversy depended upon the ruling on an unsettled question of state law which we would ultimately give in deciding the case upon its merits The rule was approved and followed in Board of Commissioners v. Vandriss, 8 Cir., 115 F. 866, 872, where a portion of the claim, necessary to bring the amount involved up to the required amount, was not enforceable because of the bar of the statute of limitations. In Harris v. Il linois Central R. Co., 5 Cir., 220 F.2d 734, 736, the Court said, “A valid defense in diminution of the amount claimed does not necessarily diminish the amount that is or may be claimed in good faith by the plaintiff.” Other cases also stating the rule are McDonald v. Patton, 4 Cir., 240 F.2d 424; Burks v. Texas Co., 5 Cir., 211 F.2d 443, 445, 47 A.L.R.2d 646; Wyoming Ry. Co. v. Herrington, 10 Cir., 163 F.2d 1004, 1006; American R. Co. of Porto Rico v. South Porto Rico Sugar Co., 1 Cir., 293 F. 670, 673-674; Sullivan v. Farmers Bank & Trust Co., D.C.E.D. Ky., 145 F.Supp. 702, 705. Such a rule does not contravene another well settled rule that the court has the power to determine in every case whether the prerequisites to jurisdiction in fact exist and that such jurisdictional issues are properly triable to the court prior to a trial on the merits. Rule 12(b) and (d), Rules of Civil Procedure, 28 U.S.C.A. The manner in which such a determination should be made is left to the trial court. Gibbs v. Buck, 307 U.S. 66, 76, 59 S.Ct. 725, 83 L.Ed. 1111. The court may inquire by affidavits or otherwise into the facts as they exist.. It is not, however, a hearing upon the merits. Land v. Dollar, 330 U.S. 731, 735, note 4, 67 S.Ct. 1009, 91 L.Ed. 1209. For a thorough discussion and analysis of this rule, see Williams v. Minnesota Mining & Manufacturing Co., 14 F.R.D. 1, with opinion by Judge Mathes of the Southern District of California, who is sitting by designation as a member of the Court presently considering this case. As pointed out in that opinion, such hearings usually involve factual issues pertaining only to the question of jurisdiction, not including factual issues which would be decisive of the merits of the plaintiff’s claim. Where the jurisdictional issue as to amount in controversy can not be decided without the ruling constituting at the same time a ruling on the merits of the case, the case should be heard and determined on its merits through regular trial procedure. Land v. Dollar, supra, 330 U.S. 731, 735, 67 S.Ct. 1009, 1011. If the rule were otherwise, the merits of a controversy could be summarily decided, partly on affidavits without the right of cross-examination, under the guise of determining the jurisdictional issue as to the amount in controversy. Smithers v. Smith, supra, 204 U.S. 632, 645, 27 S.Ct. 297, 300. In view of the foregoing discussion of the authorities, in order for the ruling of the District Court in the present case to stand, it must appear as a matter of legal certainty that the appellant would not be able to recover the necessary jurisdictional amount. The District Judge’s ruling, as stated in the order, was based upon such a proposition. Our inquiry is accordingly directed to the question whether it was a legal certainty that the appellant was limited in its recovery to the stated value of $300.

10536294-17230

FLOYD R. GIBSON, Senior Circuit Judge. Roger Justice appeals his sentence imposed after he entered a plea of guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Justice was sentenced to 71 months imprisonment pursuant to the sentencing guidelines. For the following reasons we affirm the sentence imposed by the district court. 1. BACKGROUND Justice raises two arguments on appeal. First, he argues that the sentencing guidelines are unconstitutional and, second, he argues that the district court erred in failing to depart from the guidelines when imposing his sentence. Justice’s argument challenging the constitutionality of the guidelines was briefed prior to the recent Supreme Court decision in Mistretta v. United States, — U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Mistretta upheld the guidelines and rejected the arguments which are now raised by Justice. Accordingly, we will not discuss this issue further. The remaining issue in this appeal challenges the district court’s refusal to depart below the guidelines in assessing Justice’s sentence. Justice maintains that because of his substantial cooperation with the government in investigating other criminal activity he was entitled to a sentence which departed below the guidelines. Justice also argues that the criminal history category resulting from his four prior misdemeanor convictions overstated the seriousness of his criminal background. The sentencing range for Justice’s offense under the guidelines was 63-78 months. The district court sentenced Justice to 71 months imprisonment. II. DISCUSSION A. Substantial Assistance to Authorities The government does not dispute the fact that Justice provided substantial assistance. However, the government argues that a departure below the guidelines for substantial assistance requires a motion by the government. Such a motion was not made. We begin our analysis by noting that historically, our review of sentences has been very limited. We do not know, at this point, the extent to which the new guidelines will change our role in the sentencing process. It does appear, however, that we will be called upon to review sentences with a much greater frequency. The standard of review applicable to the sentences imposed in the pre-guideline era limited appellate review to only those sentences which were “excessive under traditional concepts of justice” or “manifestly disproportionate to the crime or the criminal.” Woosley v. United States, 478 F.2d 139, 147 (8th Cir.1973) (en banc) (citations omitted). This review gave the sentencing court much discretion in arriving at its sentence. The guidelines take a great deal of discretion out of the district court’s sentence determination. To some extent the sentencing has been relegated to a somewhat mechanical process. A sentencing range is determined under the guidelines and the only discretion left to the district judge is imposing a sentence within this range or in extraordinary cases the district court may exercise its discretion in granting a departure. We recognize that this description of sentencing under the guidelines is an oversimplification; the point we are trying to make is that some discretion is still left to the district court. Areas in which discretion in the district court has been retained in the new guidelines were recently recognized by this court. In United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989), a panel of this court noted that [ujnder the Guidelines, sentencing judges retain discretion to accept or reject a plea bargain, to resolve factual disputes about the appropriate base offense level, to consider adjusting that base level for mitigating and aggravating circumstances, to choose from a range of sentences, to set probation conditions, and to determine when to depart from the Guidelines. Thus, some discretion, some power to fit sentences to the individual offender, is left. We believe that in these areas the limited scope of review applicable in the pre-guide-line era retains its full vigor. Accordingly, the issues raised in this case are reviewed under the pre-guideline abuse of discretion standard. Justice argues that 18 U.S.C. § 3553(b) provides a basis for a departure below the guidelines. Section 3553(b) provides that departure from the guidelines may be warranted where there exists “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines * * * *” 18 U.S.C. § 3553(b) (Supp. V 1987). We do not find this argument persuasive because it is clear that § 3553(b) was intended to provide a very limited basis for departure. That section was intended to apply to those situations not addressed by the Commission in its guidelines, policy statements, and official commentary. Id. Departures under § 3553(b) were intended to be quite rare. Furthermore, departure for substantial assistance to authorities was specifically dealt with by the Commission in a policy statement. See, e.g., United States v. Taylor, 868 F.2d 125, 126 (5th Cir.1989). Section 5K1.1 provides: “Upon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” Sentencing Guidelines, Chapter 5, Part K — Departures, Section 5K1.1 (emphasis added) [hereinafter Section 5K1.1 or § 5K1.1]. Because the Commission has provided a policy statement relating to substantial assistance to authorities departure under § 3553(b) would be improper. Any departure for substantial assistance must be made, if at all, pursuant to section 5K1.1. United States v. Taylor, 868 F.2d at 126. In United States v. Musser, 856 F.2d 1484, 1487 (11th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989), the Eleventh Circuit rejected a chal lenge to the “substantial assistance” provisions contained in Fed.R.Crim.P. 35(b) and 18 U.S.C. § 3553(e). Both provisions provide, in language similar to § 5K1.1, that a motion by the government is necessary before a district court may consider a defendant’s substantial assistance to authorities. In Musser the substantial assistance provisions were challenged as unconstitutional “because [they] delegate[] to prosecutors unbridled discretion to decide who is entitled to a sentence reduction.” United States v. Musser, 856 F.2d at 1487 (footnote omitted). The Eleventh Circuit rejected this argument noting that “the only authority ‘delegated’ by the rule is the authority to move the district court for a reduction of sentence in cases in which the defendant has rendered substantial assistance. The authority to actually reduce a sentence remains vested in the district court ****’’ Id. (emphasis in original). Finally, the Eleventh Circuit commented that there is “no constitutional right to the availability of the ‘substantial assistance’ provision, and hence no grounds upon which to challenge Congress’ manner of enacting it.” Id. We have several problems with § 5K1.1’s requirement that a motion by the government is necessary before a district judge can depart from the guidelines. First, this arrangement places discretion that has historically been in the hands of a federal judge into the hands of the prosecutor. Under the guidelines the prosecutor has the discretion whether to file a motion in a particular case. Second, whether the prosecutor has abused this discretion in refusing to file a motion in a particular case is a question that appears to be unreviewable. If a judge is powerless to depart in the absence of a motion, the prosecutor is able to exercise far greater discretion than has historically been vested in the district judge. While a district judge’s actions were subject to some degree of appellate review in the pre-guideline cases, under the new guidelines there appears to be no right of review or remedy if the prosecutor refuses to file a motion. Third, the issue of whether a defendant has provided substantial assistance to authorities may be a disputed factual issue. Section 5K1.1 basically gives the prosecutor the role of the trier of fact in resolving this issue. In this regard, we note that the guideline only requires a defendant to make a “good faith effort to provide substantial assistance in the investigation or prosecution of another ****’’ Section 5K1.1 (emphasis added). These problems we have just noted are readily apparent in the instant case where the government does not dispute that Justice has made a good faith effort to provide substantial assistance to authorities. Indeed, the government has stipulated to many of the steps that Justice has taken to aid authorities. For example, Justice attempted to carry out the delivery of drugs to his co-conspirators and he identified his colleagues and their financial backers. He provided all the identifying information he had with respect to his source of supply including a contact number. Justice also attempted to contact his source on two occasions. Finally, Justice provided information regarding other drug activities and agreed to provide grand jury and trial testimony as needed. Thus, the government’s refusal to motion the court for departure under § 5K1.1 in this case seems to be unreasonable in light of its stipulation. Under these facts the question becomes what is a defendant’s remedy for the government’s refusal to file a motion in recognition of the defendant’s efforts to aid authorities? Although the guidelines have been in place for a relatively short time this is not the first case in which this issue has arisen. In United States v. Coleman, 707 F.Supp. 1101, 1103 (W.D.Mo.1989), several defendants filed a motion with the district court requesting it to order the government to file a motion which would then permit the district court to consider a departure or, in the alternative, to consider a departure notwithstanding the government’s failure to file a motion. In Coleman the government entered a plea agreement with the defendants that provided that the government would move for dismissal of all charges against the defendants with the exception of the charge to which the defendants plead guilty. In addition, the agreement provided that the government would advise the sentencing court of the nature, extent, and importance of the assistance the defendants provided to law enforcement authorities. Id. at 1118-19. The agreement, however, did not discuss the manner in which the government would advise the sentencing court of the defendant’s assistance. The government refused to file a motion with the sentencing court but rather sought to discharge its obligations under the agreement by writing a letter to the sentencing court detailing the assistance provided by the defendants. In a scholarly opinion, Judge Oliver resolved this problem by concluding that the plea agreement drafted by the government was ambiguous and it therefore interpreted the agreement against its drafter. Accordingly, the district court treated the letters submitted by the government as a motion authorizing it to depart below the guidelines. Id. at 1119. In another case, United States v. White, 869 F.2d 822, 829 (5th Cir.1989), the Fifth Circuit stated that the “policy statement [§ 5K1.1] obviously does not preclude a district court from entertaining a defendant’s showing that the government is refusing to recognize such substantial assistance.” Thus the court suggested, without further elaboration, that there may be a remedy if the government refuses to recognize a defendant’s substantial assistance. In order to nullify § 5Kl.l’s clear mandate requiring a motion before a court may depart below the guidelines in recognition of a defendant’s cooperation we would have to conclude either that § 5K1.1 is unconstitutional or that it fails to implement the Congressional directive in 28 U.S. C. § 994(n). To date such challenges have been rejected by the courts. See, e.g., United States v. Musser, 856 F.2d at 1486-87 (rejecting an equal protection and separation of powers challenge to 18 U.S.C. § 3553(e)’s requirement of a motion before sentencing court can depart); see also United States v. White, 869 F.2d at 828-30 (rejecting claim that § 5K1.1 fails to implement the Congressional directive of 28 U.S. C. § 994(n)). While we recognize that § 5K1.1 allows the district court, upon motion of the government, to depart below the guidelines to reward a defendant’s cooperation, we are not positive that this provision, in the absence of a motion by the government, would divest a sentencing court of the authority to depart below the guidelines in recognition of a defendant’s clearly established and recognized substantial assistance to authorities. We believe that in an appropriate case the district court may be empowered to grant a departure notwithstanding the government’s refusal to motion the sentencing court if the defen dant can establish the fact of his substantial assistance to authorities as outlined above. Nevertheless, we are not prepared to decide this issue based on the record currently before us. Thus, while we are inclined to hold that a motion by the government may not be necessary in order for the sentencing court to consider a departure based on substantial assistance to authorities, we need not reach this issue. In United States v. Taylor, 868 F.2d 125, Taylor appealed his sentence contending that the district court incorrectly applied the guidelines by refusing to depart pursuant to 18 U.S.C. § 3553(b). As already noted, section 3553(b) allows departure for situations which are not specifically covered within the guidelines. Taylor maintained that he was entitled to a departure because of his cooperation with the government and his longstanding history of drug addiction. The Fifth Circuit rejected Taylor’s argument noting that because the guidelines address departure for substantial assistance to authorities in section 5K1.1, a departure for cooperation under § 3553(b) was not warranted. The court continued by noting that the government did recognize Taylor’s cooperative attitude by charging him with a single-count conspiracy offense rather than with additional offenses, as the government and trial court observed during the sentencing colloquy. As the trial court put it, Taylor received his bargain on the charging end of this case in exchange for his cooperation. There is no basis for asserting that the trial court’s failure to grant further leniency by departing from the Guidelines was either authorized or an abuse of discretion. Id. at 126-27. This analysis is relevant to the instant case. In the present case the government notes that as a result of the plea negotiations Justice was charged with possession of cocaine rather than possession in excess of 500 grams of cocaine which would have invoked the statutory minimum sentence of five years. It is not clear from the stipulation whether the government’s decision to give Justice leniency in charging him with the lesser violation was due, in part, to his cooperation. However, in correspondence with the government during plea negotiations counsel for Justice wrote “[w]e would, of course, like for Mr. Justice to reap the full benefit of any helpful information he has provided.” Thus the plea agreement reached between Justice and the government was likely attributable, at least in part, to Justice’s cooperation. As a result of the plea agreement Justice avoided a charge that carried a statutory minimum sentence of five years. Therefore, he received the benefit of his cooperation during the charging phase of this case in the same manner as the defendant in the Taylor case. The fact that the district court’s ultimate sentence exceeded the five year minimum sentence which Justice sought to avoid through his plea negotiations (Justice was sentenced to 71 months) is of no significance. If Justice desired further leniency for his cooperation during his sentencing he should have at least made it clear that the plea did not affect his entitlement to have the sentencing court consider a departure under § 5K1.1, or alternatively, he should have negotiated for the government’s promise to file a § 5K1.1 motion during the sentencing hearing. Finally, the sentencing transcript reveals that Justice’s argument that a sentencing court is free to depart below the guidelines without a motion by the government was not urged in the district court. In fact, Justice’s counsel appeared to concede the necessity of a motion. The following comments were made during Justice’s sentencing hearing: Counsel for Justice: And we had also pointed out that there was some assistance to the DEA in this case. I realize that there’s provision that —for providing substantial assistance and like requires a motion of the government, but there was some — some assistance provided in this case and I think that coupled with the overkill on the criminal history situation, two of those would warrant this Court considering a departure below the guidelines. Sentencing Transcript at 9.

10523168-17213

BENAVIDES, Circuit Judge: This is an appeal from an order granting a pretrial motion to suppress cocaine discovered during a post-arrest search of appellee’s suitcase at an airport. A trained narcotics dog had alerted to appellee’s suitcase prior to his arrest and prior to the search of his suitcase. The district court found the arrest illegal and the subsequent search tainted by the failure to give Miranda warnings. In addition, the district court granted the appel-lee’s motion to suppress all statements made by the appellee subsequent to his arrest. The government appeals these rulings. We affirm in part and reverse in part. I. FACTS AND PROCEDURAL HISTORY On March 10, 1993, several Houston Narcotics Division police officers positioned themselves in the lobby of the Hobby Airport to observe persons leaving on TWA’s 12:37 p.m. flight to New York. At the suppression hearing in the court below, Officer D.V. Luis, a Houston police officer assigned to the Hobby Airport Interdiction Squad, explained that Houston is a big “source” city and New York is a “demand” city. Luis testified that she noticed the appellee, Jon Mendez, when he entered the terminal for the following rea sons: “he was carrying a fairly large suitcase that appeared to be extremely heavy for him;” “[h]e was there approximately 20 minutes prior to the departure time of the airplane;” and “[h]is bag looked fairly new and it was locked.” Mendez checked the suitcase at the TWA counter and proceeded to the departure gate. Luis then went to the TWA ticket agent and obtained the claim number of the bag Mendez cheeked. The ticket agent also informed her that Mendez, through a travel agency, had purchased that day a one-way ticket for departure the following day, March 11. Mendez, however, was not taking the flight he originally purchased — instead, he was attempting to fly out the same day he purchased the ticket. Luis gave the information to Officer Hardy, the police canine handler, who went downstairs to the baggage handling area to await the bag and to have a trained dog sniff it for drugs. At that time, Officers Luis and Mosley proceeded to Mendez’ gate of departure. When they arrived at the gate, Mendez had already boarded the plane. The officers waited there until Hardy advised them that the dog had given a positive alert on the bag. A positive alert on the bag means “[t]hat the dog has alerted on the odor of narcotics.” The officers boarded the plane, and Luis recognized Mendez as the man who had checked the bag. She approached him and identified herself as a Houston police officer. Mendez indicated that he did not speak English and so she spoke to him in Spanish. She again informed him that she was a Houston police officer and asked him if he was traveling to New York, and he responded that he was. She asked him if she could look at his ticket, and Mendez “hesitantly produced his ticket, although it was sitting there in front of him.” Luis saw that the destination on the ticket was New York and the name on the ticket was “Jonathan Murillo.” She also asked him if he had any identification, and he answered that he had none. Luis asked Mendez if he knew any reason why a narcotics dog would alert on his suitcase, and he answered in the negative. Luis then inquired whether Mendez would mind accompanying them in order to identify the bag, and he complied. Officers Luis and Mosley escorted Mendez to the location of the bag. During this walk, Officer Mosley had his finger in Mendez’ belt loop. Luis inquired whether Mendez lived in New York or Houston, and Mendez simply shrugged his shoulders. She further asked him what kind of suitcase he had checked, and he asserted that his bag was yellow. The officers knew that was false because they had observed him check his bag. Officer Maxwell brought out the bag that the officers previously observed Mendez check. The claim check for the bag matched the claim number on the ticket held by Mendez. Upon showing the bag to Mendez, he “stated that it was not his bag.” He again claimed that his suitcase was yellow. Luis asked him if that was his bag, which he again denied. She also asked permission to search the bag, and he stated “that [she] could look in his bag, but that was not his bag.” She testified that “at that point, feeling that the bag was abandoned, we went on ahead and opened it.” The bag contained 14 bundles wrapped in white plastic. A field test was performed, and it tested positive for cocaine. Mendez then was placed under formal arrest, and Luis read Mendez his Miranda warnings. Luis was the only person who testified at the suppression hearing. After hearing the evidence, the district court found that Mendez had been placed under arrest when he left the plane with the officers. The district court further found that (1) the arrest was illegal because probable cause to arrest did not exist at that time, (2) even if the arrest were legal, the officers’ failure to advise Mendez of his Miranda rights tainted the search and seizure, and that (3) Mendez’ “abandonment” of his suit-ease was a consequence of the officers’ failure to warn him of his rights. The district court granted Mendez’ motion to suppress the contents of his suitcase and the statements he made after he was taken off the plane. 827 F.Supp. 1280. II. STANDARD OF REVIEW When reviewing a district court’s ruling on a motion to suppress based on live testimony at a suppression hearing, this Court accepts the trial court’s factual findings unless they are clearly erroneous or are influenced by an incorrect view of the law. United States v. Alvarez, 6 F.3d 287, 289 (5th Cir.1993). The district court’s conclusions of law on a motion to suppress are reviewed de novo. Id. Further, the evidence is viewed in the light most favorable to the prevailing party. Id. III. THE PROBABLE CAUSE ISSUE The district court found that Mendez was placed under custodial arrest at the time he was escorted from the aircraft. The government does not contest that finding for purposes of this appeal, and thus, we will assume that conclusion is correct. The government does argue, however, that the district court erred in finding that probable cause to arrest Mendez did not exist at the time he exited the plane. Probable cause exists where the facts and circumstances within the arresting officers’ knowledge are sufficient in themselves to warrant a man of reasonable caution in the belief that the person to be arrested has committed or is committing an offense. United States v. Orozco, 982 F.2d 152, 154 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2430, 124 L.Ed.2d 650 (1993). The district court found that there was no probable cause because “[a]t the time of the arrest, the only evidence the officers had was the alert of the dog to the suitcase and the drug courier characteristics of Mendez.” The district court discounted the characteristics noted by Luis on the basis that innocent travelers could display any of the characteristics. The district court opined that “[without proof of contraband, the officers had no probable cause to support an arrest of Mendez without a warrant.” The court further states that “[t]his case has virtually no trait evinced by Mendez to reinforce the dog’s alert. The things about him that the police say attracted their attention are not suspicious individually or aggregately.” Contrary to the district court’s analysis, “probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause.... ” Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983). In concluding that there was no probable cause to arrest Mendez, the district court erred by failing to realize that the factors the court considered innocent or marginal had a greater significance after the dog alerted on Mendez’ suitcase. Further, the district court failed to consider the following circumstances adduced at the hearing that added to the probable cause calculus: that on the day he was arrested, Mendez purchased a one-way ticket to depart the next day, but changed his plans and attempted to fly that same day; that Mendez was hesitant to hand his ticket to Luis when she requested it (even though “it was sitting there in front of him”); and that Mendez was making a long trip without any personal identification. Significantly, the district court did not find that any of the circumstances articulated by Luis did not exist. Rather, the court apparently did not find them suspicious. As previously stated, although the district court’s factual conclusions must be accepted unless clearly erroneous or influenced by an incorrect view of the law, the probable cause determination is a matter of law and thus, reviewed de novo. In view of the undisputed facts adduced at the suppression hearing, we find the district court’s conclusion that probable cause to arrest had not arisen at the time the officers escorted Mendez from the plane incorrect as a matter of law. At the time he was taken into custody the arresting officer knew that: Mendez, on the day he was arrested, had purchased a one-way ticket to depart the next day, but changed his plans and attempted to fly that same day; when the officer requested to see his plane ticket, Mendez hesitated to hand it over even though the officer could see it; a narcotics dog gave a positive alert for drugs in the suitcase that Mendez had checked; Mendez was making a long trip without any personal identification; and that he was flying from a “source” city to a out-of-state “demand” city. These circumstances taken together were sufficient in themselves to warrant a person of reasonable caution in the belief that Mendez had committed and was committing a narcotics offense. Accordingly, the arrest was lawful. IV. THE MIRANDA VIOLATION It is undisputed that the officers did not give Mendez his Miranda warnings at the time he was escorted from the plane. He was not so advised until after the officers opened the suitcase and discovered the cocaine. The district court held that even if the arrest were legal, the “seizure” was tainted by the failure to inform Mendez of his Miranda rights. The government argues that although the prophylactic rule of Miranda was violated, there was no constitutional violation and thus, the district court erred in suppressing the nontestimonial evidence, i.e., the cocaine in the suitcase. Mendez counters that the government’s analysis fails because “[t]here is nothing in the record to suggest that Mendez experienced anything less than a substantive violation of constitutionally protected Fourth and Fifth Amendment interests. The trial court’s findings were that the police misconduct, knowing and persistent, was constitutionally impermissible.” The premise of Mendez’ argument is faulty because it is based on the district court’s erroneous conclusion that Mendez’ arrest was in violation of the Fourth Amendment. “A mere violation of Miranda’s ‘prophylactic’ procedures does not trigger the fruit of the poisonous tree doctrine. The derivative evidence rule operates only when an actual constitutional violation occurs, as where a suspect confesses in response to coercion.” United States v. Barte, 868 F.2d 773, 774 (5th Cir.), cert. denied, 493 U.S. 995, 110 S.Ct. 547, 107 L.Ed.2d 543 (1989) (citing United States v. Bengivenga, 845 F.2d 593, 601 (5th Cir.), cert. denied, 488 U.S. 924, 109 S.Ct. 306, 102 L.Ed.2d 325 (1988)). To suppress the derivative evidence, the tactics employed by the officers must be ‘“so offensive to a civilized system of justice that they must be condemned.’ ” Barte, 868 F.2d at 774 (quoting Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985)). Barte sheds some light on the level of coercion needed to rise to the level of a due process violation. There, postal inspectors mailed an envelope, which contained $20 and a transmitter, to a fictitious address on Barte’s mail route. 868 F.2d at 773. The inspectors were trailing Barte when the transmitter signalled that the envelope had been opened. Two inspectors approached Barte, identified themselves as postal inspectors, asked Barte to step out of the vehicle, and told him they were looking for a particular letter. One inspector described the envelope and address on it, and Barte denied any knowledge of it. The inspectors told him “We know you have the letter ... We know you’ve just opened it. We’re not leaving here until we have our letter.” Id. Barte then admitted opening the envelope and taking the $20 and gave them the money and the envelope. After the inspectors recovered that evidence, Barte was given his Miranda warnings. This Court found that although the money and the envelope were a product of a Miranda violation, the district court erred in suppressing the nontestimonial evidence because the officers’ tactics did not rise to the level of coercion. Id. at 774. In the instant case, after hearing the evidence, the court below found that this was not a technical Miranda violation, rather “it was a persistent, moderately lengthy interrogation. The questions were clearly designed to elicit information.” The court further opined that “[t]he circumstances of Mendez’ involuntary custody compel the conclusion that he was purposely not alerted to his rights to get an incriminating statement, whether an admission or denial.” It is unclear whether the district court was applying the correct standard, i.e., were the tactics employed by the officers so offensive to a civilized system of justice that they must be condemned? In any event, the officers’ conduct in the instant case certainly is no more coercive than that of the inspectors in Barte. The only testimony adduced at the suppression hearing was that of Officer Luis. After reviewing the record, we find that it does not support the conclusion that the officers’ tactics were so offensive as to rise to the level of a due process violation. Finally, to support the conclusion that Mendez’ abandonment of his suitcase was not voluntary, the court below and Mendez have relied heavily on the case of United States v. Morin, 665 F.2d 765 (5th Cir.1982). In Morin, this Court found the defendant’s abandonment of his luggage tainted when a police officer arresting the defendant failed to provide Miranda warnings, and then deliberately sought an admission from the defendant regarding the ownership of the luggage to search it for drugs. Specifically, we held that there was a clear nexus between the illegal arrest of Morin and the subsequent disclaimer of his luggage. That case is inap-posite. Unlike the instant case, Morin’s arrest was illegal. Moreover, Morin was decided prior to the Supreme Court’s decision in Oregon v. Elstad, 470 U.S. 298, 304-09, 105 S.Ct. 1285, 1290-93, 84 L.Ed.2d 222 (1985). After Elstad, this Court has recognized that “Elstad makes clear that failure to give or carry out the obligation of Miranda warnings in and of itself is not a constitutional infringement, the test by which to evaluate whether a defendant’s underlying Fifth Amendment right against compelled testimony has been violated is still the due process voluntariness test.” United States v. Cherry, 794 F.2d 201, 207 (5th Cir.1986), cert. denied, 479 U.S. 1056, 107 S.Ct. 932, 93 L.Ed.2d 983 (1987) (internal quotation marks and citation omitted). Here, there was probable cause to arrest Mendez, and thus, the police officers’ lawful arrest could not have tainted Mendez’ abandonment of the suitcase. Cf. Alvarez, 6 F.3d at 290 (we explained that because the defendant’s arrest was lawful, the voluntariness of the defendant’s abandonment of the suitcase “was not tainted by any illegal or improper act by the police in executing the arrest warrant.”). Further, as discussed above, the officers’ conduct did not rise to the level of coercion. The district court erred in finding that the cocaine should be suppressed. However, as the government concedes, the district court properly suppressed the statements made by Mendez after he was taken off the plane but before he was informed of his Miranda rights. V. CONCLUSION For the reasons set forth above, the district court’s order of suppression is REVERSED except insofar as it suppressed the statements made by Mendez after he was taken off the plane but before he was informed of his Miranda rights, and the case is REMANDED for further proceedings. . Luis testified that if there had been no positive alert on the bag they would not have boarded the plane. . Luis testified that Mendez would not have been free to remain on the flight. She further testified that she did not believe that at that point there was probable cause "to make a full-blown custodial arrest." .Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Of course, the circumstances that attracted the attention of the police to Mendez simply resulted in the dog sniffing the suitcase. A dog sniff does not implicate the Fourth Amendment. United States v. Lovell, 849 F.2d 910, 913 (5th Cir.1988).

3416888-18696

ORDER DENYING PETITIONER’S SECTION 2255 MOTION KAY, Chief Judge. BACKGROUND On February 1, 1996, petitioner Romeo Santos filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and a request for an evidentiary hearing. On March 27, 1996, the government filed an opposition. On April 29, 1996, Petitioner filed a Reply and Supplemental Memorandum. Petitioner is currently serving a 126 month sentence, having pled guilty to (1) one count of the distribution of crystal methamphetamine (21 U.S.C. § 841(a)(1)) and (2) one count of the distribution of crystal methamphetamine in excess of 10 grams (21 U.S.C. § 841(a)(1)); and having been found guilty after jury trial of (3) one count of conspiracy to distribute and possess with intent to distribute in excess of 10 grams of crystal methamphetamine (21 U.S.C. §§ 846 and 841(a)(1)) and (4) one count of use of a firearm during a drug trafficking offense (18 U.S.C. § 924(c)(1)). Petitioner was sentenced by this Court on May 13,1991. Petitioner claims (1) that because the government laboratory report did not specify if the subject methamphetamine was D-methamphetamine or the less serious L-methamphetamine, the Court erroneously sentenced him as though the subject methamphetamine was D-methamphetamine; (2) his attorney was ineffective for failing to challenge at sentencing or on appeal the calculation of his sentence based on D-methamphetamine; and (3) his sentence violates the equal protection clause because his status as a deportable alien precludes his participation in prerelease programs. FACTS On July 26, 1990, a federal grand jury for the District of Hawaii returned a five-count Indictment against Petitioner, Romeo Santos, and his co-defendants Raymundo Santos, Robert Andres, Dawn Morgan, Jerry Mali-nab, and Georgia Miller. On November 6, 1990, Petitioner pled guilty to counts 1 and 2 and began trial for counts 3 and 4. On November 13, 1990, the jury found Petitioner guilty of counts 3 and 4. The Presentence Report (PSR) calculated Petitioner’s base offense level to be 26. On February 12, 1991, Petitioner filed a supplemental sentencing statement objecting to the PSR level 26 calculation in paragraph 47. Petitioner claimed that the stipulation entered into by the parties did not establish the purity of the methamphetamine. The United States filed a memorandum regarding the laboratory analysis on March 26, 1991 and Petitioner withdrew his objection on May 3, 1991. On May 13, 1991, Petitioner appeared for sentencing. Petitioner’s counsel confirmed the withdrawal of Petitioner’s objection to PSR paragraph 47 which calculated the base offense level at a level 26. The Court made a two-point upward adjustment for Petitioner’s role as a leader in the offense and granted Petitioner’s request for a two-point downward adjustment for acceptance of responsibility. Petitioner’s adjusted total offense level thus was a level 26. Based on the total offense level 26 and a criminal category one, the Court sentenced Petitioner to 66 months imprisonment on Counts 1, 2, and 3 and 60 months imprisonment on Count 4. The sentence for Count 4 was ordered to run consecutive to that adjudged in Counts 1-3. Petitioner filed a timely notice of appeal on May 23,1991. On appeal, Petitioner argued that there was insufficient evidence to sustain his conspiracy conviction. Petitioner did not challenge the sentence that was imposed. By memorandum opinion filed May 7, 1992, the Ninth Circuit found that there was sufficient evidence of Petitioner’s participation in the conspiracy and affirmed his conviction. DISCUSSION I. EVIDENTIARY HEARING Title 28 U.S.C. § 2255 provides that a court shall hold an evidentiary hearing on a motion under this section “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” “A court may entertain and determine such [a] motion without requiring the production of the prisoner at the hearing.” Id. The standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted. A hearing must be granted unless the movant’s allegations, when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984) (citations omitted); Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.1989); see also United States v. Quan, 789 F.2d 711, 715 (9th Cir.1986) (“Where a prisoner’s motion presents no more than eonelusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required.”). The Ninth Circuit has recognized that even where credibility is at issue, where that can be “‘conclusively decided on the basis of documentary testimony and evidence in the record,’ ” no evidentiary hearing is required. Shah, 878 F.2d at 1159 (quoting United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir.1989)). Judges also may use discovery, documentary evidence, and their own notes and recollections of the plea hearing and sentencing process to supplement the record. Shah, 878 F.2d at 1159. “Judges may also use common sense.” Id. The choice of method for handling a section 2255 motion is left to the discretion of the district court. Id. (citing Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988)). Here, Petitioner requests an evidentiary hearing on the grounds that nowhere in the government’s laboratory reports is there any indication that the subject methamphetamine was D-methamphetamine. The Court however denies Petitioner’s request because it finds that his motion may be ruled upon without the necessity of such a hearing. II. SENTENCE Petitioner claims that this Court improperly sentenced him as if the subject methamphetamine was D-methamphetamine rather than L-methamphetamine by failing to require proof that the methamphetamine was in fact D-methamphetamine and by failing to resolve this factual dispute at sentencing. A. MERITS Putting aside any procedural bar, Petitioner arguably has a claim his sentence was improperly imposed. In United States v. Dudden, 65 F.3d 1461 (9th Cir.1995), the Ninth Circuit held on direct appeal (as opposed to on collateral attack) that while a district court’s factual findings at sentencing are reviewed only for clear error, “[i]t was clear error to find that the drug ... was D-methamphetamine” where there was insufficient evidence to satisfy the government’s burden to prove what type of methamphetamine was involved. Id. at 1472. Here, the Court sentenced Petitioner as if the subject methamphetamine were D-methamphetamine. Although the government had the methamphetamine analyzed by the DEA Western Regional Laboratory in San Francisco, this analysis did not determine whether the methamphetamine involved was D-methamphetamine or L-methamphetamine. “[W]hen ... no direct evidence of the drug’s chemical composition or the method of its manufacture is available, circumstantial evidence may be sufficient to determine which isomer [D- or L-] is involved.” Dudden, 65 F.3d at 1471. The government however offers no such circumstantial evidence here. Accordingly, it would seem it has not borne its burden. See United States v. Dudden, 65 F.3d 1461 (9th Cir.1995) (“It is the government’s burden to present evidence sufficient for the district court to find, by a preponderance of the evidence, that the drug involved was D-methamphetamine [as opposed to L-methamphetamine].”). B. PROCEDURAL BAR The government responds, however, and the Court agrees, that Petitioner’s claim is proeedurally barred. The Ninth Circuit has held that while constitutional sentencing errors may be raised for the first time in a § 2255 motion where the defendant can demonstrate cause (for having failed to raise the issue earlier) and actual prejudice, “nonconstitutional sentencing errors that have not been raised on direct appeal have been waived and generally may not be reviewed [even for cause and actual prejudice] by way of 28 U.S.C. § 2255.” United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir.1995) (barring review by § 2255 petition of sentencing court’s alleged failure to resolve factual disputes at sentencing as required by Rule 32(c)(3)(D)); see also United States v. Seyfert, 67 F.3d 544, 546 (5th Cir.1995) (barring review by § 2255 petition of nonconstitutional claim that government failed to prove quantity of D-methamphetamine, as opposed to L-methamphetamine, in methamphetamine used to calculate defendant’s sentence); cf. United States v. Deninno, 29 F.3d 572, 580 (10th Cir.1994) (defendant waived claim on appeal that he should have been sentenced for L-methamphetamine rather than D-methamphetamine by failing to raise issue at sentencing), cert. denied, — U.S. —, 115 S.Ct. 1117, 130 L.Ed.2d 1081 (1995); compare United States v. Bogusz, 43 F.3d 82, 89-90 (3d Cir.1994) (“[Considering the gross disparity in sentencing, we disagree with the Deninno court’s holding that the determination of methamphetamine type is entirely a factual question that cannot rise to the level of plain error.”) (cited in United States v. Dudden, 65 F.3d 1461, 1471 (9th Cir.1995), for other proposition that circumstantial evidence may support determination of particular isomer involved), cert. denied, — U.S. —, 115 S.Ct. 1812, 131 L.Ed.2d 736 (1995); United States v. Ramsdale, 61 F.3d 825, 832 (11th Cir.1995) (agreeing with Third Circuit that “it is plain error to impose a sentence based upon D-methamphetamine in the absence of any evidence as to the type of methamphetamine involved in the criminal activity”) (emphasis added); United States v. Dudden, 65 F.3d 1461, 1471 (9th Cir.1995) (citing Ramsdale, but not in § 2255 waiver context, for proposition that “[t]here must be proof ... to justify the added deprivation of liberty that follows the scoring of the drug as D-methamphetamine”). The Court finds that in light of Schlesinger, Petitioner’s nonconstitutional claim of a sentencing error is proeedurally barred. Moreover, Petitioner cannot show cause and actual prejudice. While establishment of ineffective assistance of counsel may satisfy cause and actual prejudice, see United States v. Acklen, 47 F.3d 739, 742 (5th Cir.1995), Petitioner cannot, as discussed below, establish such ineffective assistance here. III. INEFFECTIVE ASSISTANCE OF COUNSEL Petitioner claims ineffective assistance of counsel on the grounds that his counsel failed to challenge at sentencing or on direct appeal the calculation of his sentence based on D-methamphetamine. The Court finds no ineffective assistance here. In order to establish a claim of ineffective assistance of counsel, a defendant must demonstrate: (1) that his counsel’s performance was outside the “wide range of professionally competent assistance,” by identifying specific material errors or omissions, and (2) that his defense was so prejudiced' by his counsel’s errors that there is a reasonable probability that, but for his counsel’s deficient representation, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). The defendant must overcome the presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; see also Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955) (defendant must overcome presumption that, under the circumstances, the challenged action might be considered sound trial strategy). Judicial scrutiny of counsel’s performance must be highly deferential and must take into account the facts of the particular case, viewed as of the time of counsel’s conduct. Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66. The Court finds that Petitioner has failed either to rebut the presumption that his counsel’s performance was within the “wide range of professionally competent assistance” or to demonstrate prejudice, that is, “a reasonable probability that, but for his counsel’s deficient representation, the result of the proceeding would have been different.” Although at the time of Petitioner’s sentencing on May 1, 1991 the Sentencing Guidelines treated L-methamphetamine much less severely than D-methamphetamine, case law regarding the government’s burden of proving (and the necessity of finding) that the drug involved is the more potent D-methamphetamine was sparse. Considering the state of the law at the time of Petitioner’s sentencing and the conduct of Petitioner’s counsel under the circumstances, the Court finds that Petitioner fails to rebut the presumption that his counsel rendered adequate assistance. Moreover, Petitioner cannot show prejudice — that is, a “reasonable probability that, but for his counsel’s deficient representation, the result of the proceeding would have been different” — inasmuch as he has neither alleged nor shown that the subject methamphetamine was in fact L-methamphetamine, nor is there any evidence in the record to so indicate. See Petitioner’s Mot. at 5 (ground for motion is that “[t]he government laboratory report did not specify if the methamphetamine in question was either Dmeth or L-meth”); Petitioner’s Memo, at 2 (same); United States v. Youngpeter, 83 F.3d 434 (Table), 1996 WL 221386, **2 (10th Cir. May 2,1996) (unpublished); Brody v. United States, 89 F.3d 840 (Table), 1996 WL 240230, *1 (8th Cir. May 10, 1996) (unpublished). Petitioner’s claim of ineffective assistance of counsel accordingly is rejected. IV. EQUAL PROTECTION Finally, Petitioner claims (for the first time in his Supplemental Memorandum) that his sentence is in violation of the Equal Protection Clause. The government has not responded to this argument. Petitioner argues that by virtue of his status as a deportable alien, he has been unconstitutionally excluded from early pre-release programs such as half-way house, camp, and home confinement. Additionally, he argues that such exclusion constitutes mitigating circumstances which warrant a downward departure in his sentence. The Court finds there is no merit to these arguments. To state a claim for violation of the Equal Protection Clause of the Fourteenth Amendment the plaintiff must allege that he was treated differently from other similarly situated persons. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 926 (9th Cir.1993) (defendant not “similarly situated” to post-sentence prisoners and denial of credit for her seven-month house arrest does not violate equal protection). Petitioner alleges that “[o]n one hand, U.S. citizens have access to [pre-release programs] ..., and on the other hand, deportable aliens are excluded from such opportunities to help themselves reduce their sentence.” However, Petitioner fails to state an Equal Protection claim because deportable aliens are not “similarly situated” to United States citizens. The Ninth Circuit has not addressed the issue of whether one’s status as a deportable alien warrants downward departure. Such a claim, however, is one of a nonconstitutional error that is barred under Schlesinger. In addition, this Court finds the reasoning of the Tenth and Eleventh Circuits on this issue persuasive and thus, in the alternative, will adopt the view that one’s status as a deportable alien, which may result in ineligibility for less restrictive terms of confinement, nevertheless cannot justify a downward departure. See United States v. Veloza, 83 F.3d 380 (11th Cir.1996) (consequences of defendant’s status as deportable alien did not warrant downward departure under sentencing guidelines); United States v. Mendoza-Lopez, 7 F.3d 1483, 1486 (10th Cir.1993) (allegedly “harsh consequences of imprisonment for deportable aliens” are not grounds for downward departure). CONCLUSION For the foregoing reasons, the Court DENIES Petitioner’s section 2255 motion. IT IS SO ORDERED. . In United States v. Burt ("Burt I"), 76 F.3d 1064 (9th Cir. February 21, 1996), the Ninth Circuit affirmed a defendant's convictions for distributing methamphetamine and using a firearm during a drug trafficking offense, despite the giving of an invalidated entrapment instruction, on the grounds that error was harmless, but vacated and remanded his sentence based on distribution of D-methamphetamine by building on Dudden and holding that "a failure to determine the type of methamphetamine constitutes plain error." Burt, 76 F.3d at 1069. The Ninth Circuit, however, then granted the defendant's petition for rehearing and withdrew its decision in its entirety. United States v. Burt, 83 F.3d 1156 (9th Cir. May 17, 1996). Upon rehearing, in an unpublished memorandum disposition, the Ninth Circuit reversed the defendant's convictions on the grounds the giving of the defective entrapment instruction was plain error and accordingly failed to reach the defendant’s challenges to his sentence based on D-methamphetamine. United States v. Burt, 86 F.3d 1164 (9th Cir. May 17, 1996). The United States contends that because the rationale for finding that it is plain error to fail to determine the type of methamphetamine is that such a finding "makes a significant difference in the sentence imposed,” Burt I, 76 F.3d 1064, 1069, the same reasoning ought not to apply here inasmuch as the instant disparity is only six months. See United States’ Response at 8-11. While the Court finds the government’s contention not unpersuasive, it need not rule on that basis in light of the following discussion. Moreover, as discussed in footnote 2, plain error can be constitutional or nonconstitutional. Accordingly, error constituting a failure to determine the type of methamphetamine may be procedurally barred even assuming such error is plain. . "Constitutional” error is not necessarily synonymous with "plain” error. Plain error is error " 'which [the appeals court] may review even absent a timely objection [below].'" United States v. Hutson, 843 F.2d 1232, 1238 (9th Cir.1988) (quoting United States v. Lopez, 575 F.2d 681, 685 (9th Cir.1978)). It is a "highly prejudi cial error affecting [the defendant’s] substantial rights,” Hutson, 843 F.2d at 1232 (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.1979)), and "is invoked to prevent a miscarriage of justice or to preserve the integrity and the reputation of the judicial process.” United States v. Payne, 944 F.2d 1458, 1463 (9th Cir.1991).

3481031-18649

BERZON, Circuit Judge: Hani Abdulmalek A1 Mutarreb, a native and citizen of Yemen, was ordered removed in absentia and moved to reopen his proceedings. The immigration judge (“IJ”) denied his motion to reopen, and the Board of Immigration Appeals (“BIA”) affirmed the IJ’s denial. A1 Mutarreb petitions for review. He maintains that he did not receive notice of the pendency of proceedings in accordance with 8 U.S.C. § 1229(a)(1)(F), and argues that his motion to reopen should have been granted for that reason. A1 Mutarreb also submits that the agency’s finding of removability was either procedurally improper, or unsupported by substantial evidence. We reach only the latter contention. Because the record contains no evidence relevant to the charge of removability, we grant the petition for review and remand to the BIA with instructions to vacate the removal order. I. FACTS AND PROCEDURAL HISTORY A1 Mutarreb was admitted to the United States on August 25, 1998, on an F-l (student) visa. His visa allowed him to remain in the United States until August 20, 1999, for the purpose of studying at Contra Costa Community College in San Pablo, California. In August or September of 1999, A1 Mutarreb submitted an asylum application to the former Immigration and Naturalization Service, stating that he feared persecution if he returned to Yemen. After an interview with an asylum officer in October 1999, A1 Mutarreb received a Notice of Intent to Deny his application and submitted a rebuttal to the Notice, but received no response from the Service. A year and a half later, on April 3, 2001, the Service commenced removal proceedings against A1 Mutarreb by issuing a Notice to Appear (“NTA”). The NTA charged that A1 Mu-tarreb was removable under 8 U.S.C. § 1227(a)(l)(C)(i) (“Nonimmigrant status violators”) because he had not attended Contra Costa Community College “from August 20, 1999 to Present,” and so failed to comply with the terms of his F-l status. The NTA directed AI Mutarreb to appear in Immigration Court for a removal hearing on May 9, 2001. It is undisputed that Al Mutarreb did not receive the NTA. The Service sent the NTA via certified mail to a P.O. Box address that Al Mutarreb had provided in a previous filing, but the envelope was returned to the Service on May 4, 2001, bearing the stamp “unclaimed.” The Service did not attempt to re-send the NTA to Al Mutarreb’s street address (which Al Mutarreb had also provided in the same previous filing). Nor did the Service send a copy of the NTA to Al Mutarreb’s counsel of record, Elias Shamieh, as Al Mutar-reb argues the regulations require it to do. See 8 C.F.R. § 292.5(a) (“Whenever a person is required by any of the provisions of this chapter to ... be given notice ... such notice ... shall be given ... to ... the attorney or representative of record, or the person himself if unrepresented.”). Because neither Al Mutarreb nor his representative received the NTA, neither was aware of the pendency of removal proceedings or the date of the hearing. Not surprisingly, neither Al Mutarreb nor his attorney appeared in Immigration Court on May 9, 2001. The Service thereupon asked the IJ to proceed with the removal hearing in absentia, pursuant to 8 U.S.C. § 1229a(b)(5)(A). The IJ did so. There is no transcript of the proceedings. At the close of the proceedings, the IJ signed a computer-generated order directing that Al Mutarreb be removed to Yemen “on the charge contained in the Notice to Appear.” Notably, the IJ failed to check either of the two boxes on the computer-generated order that would indicate whether her finding of removability was supported by “the respondent's] admission of] the factual allegations” at a prior hearing, or “documentary evidence [submitted by the Service] ... which established the truth of the factual allegations.” The Immigration Court sent a copy of the removal order to Al Mutarreb. The record does not indicate which address or method of mailing the Service used this time, but it is clear that the removal order, unlike the NTA, did reach Al Mutarreb. Shortly after receiving the removal order, Al Mutarreb filed a motion to reopen with the Immigration Court, which the IJ denied. Appealing the denial of his motion to reopen to the BIA, Al Mutarreb conceded that the Service had mailed his NTA to his current P.O. Box address, but argued that the Service’s attempt at notice did not meet the requirements of the Immigration and Nationality Act (“INA”) § 239(a)(1)(F), codified at 8 U.S.C. § 1229(a)(1)(F), and that the IJ was therefore without authority to conduct proceedings in absentia. The BIA rejected Al Mutarreb’s argument, holding that the Service’s attempt at notice was statutorily sufficient and that reopening was therefore not merited. Al Mutarreb filed a petition for review with this Court. Before argument, the parties stipulated to a remand “for the sole and limited purpose of considering the issue of Petitioner’s [remov]ability.” We granted the joint motion and remanded to the BIA. Al Mutarreb v. Ashcroft, No. 02-74177 (9th Cir. Feb.25, 2004) (order). On remand, the BIA took the view that the IJ’s failure to check either box “appears to be a clerical oversight,” and reasoned that, even though the IJ’s factual findings are not indicated on the face of the order, one can infer from the order of removal that the IJ must have made the factual finding necessary to sustain the removability charge — namely, that Al Mu-tarreb failed to comply with the terms of his student visa. The BIA then concluded that the IJ’s imputed factual finding is supported by a single piece of evidence in the record: Al Mutarreb’s asylum application, which, in response to the instruction “Provide the following information about your education, beginning with the most recent: Name of School, Type of School, Location, [Dates] Attended,” does not list any educational experience in the United States. The BIA held that this lack of information, without more, supports an inference that Al Mutarreb did not attend Contra Costa Community College as his visa required. Al Mutarreb filed a timely petition for review with this Court. II. ANALYSIS Al Mutarreb’s removal order qualifies as a “final order of removal” over which this Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because his removal order was entered in absentia, our review is also governed by an additional provision of the INA, 8 U.S.C. § 1229a(b)(5)(D). This provision specifies that circuit courts “shall” have jurisdiction to review the following three aspects of in absentia orders: “(i) the validity of the notice provided to the alien, (ii) the reasons for the alien’s not attending the proceeding, and (iii) whether or not the alien is removable.” Id. The first and third aspects are at issue here. Al Mutar-reb submits that he did not receive proper notice of his removal proceedings, and, in the alternative, that the IJ’s removal order is unsupported by a valid administrative finding that he is removable as charged. If he prevails on either claim, we must grant his petition for review. We address Al Mutarreb’s claims in turn. A. Notice In the context of removal proceedings, notice is first accomplished through an NTA, which advises the alien that removal proceedings have begun, alerts him to the charges against him, and informs him of the date and location of the hearing. It is undisputed that Al Mutarreb did not actually receive an NTA. Our question is whether Al Mutarreb can be fairly charged with having received notice, consistent with the requirements of the INA and due process. The INA permits service of NTAs and hearing notices either in person or by mail. 8 U.S.C. § 1229(c). Service by mail is statutorily sufficient so long as the notice was sent to “the last address provided by the alien in accordance with subsection (a)(1)(F) of this section.” Id.; see also 8 U.S.C. § 1229a(b)(5)(A) (authorizing IJs to enter removal orders in absentia only “if the Service establishes by clear, unequivocal, and convincing evidence that ... notice was ... provided at the most recent address provided under section 1229(a)(1)(F) of this title.”). What it means to be an address “provided under section 1229(a)(1)(F),” in turn, was the focus of Matter of G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001) (en banc), which held that an alien can be said to have “provided” his address to the Service “under” § 1229(a)(1)(F) only if he has actually received, or can be fairly charged with receiving, the specific advisals and warnings enumerated at § 1229(a)(1)(F) regarding the consequences of his failure to provide and update his address once removal proceedings have begun. That advisal is usually conveyed to an alien for the first time in an NTA. G-Y-R-, 23 I. & N. Dec. at 187. Because the parties agree that A1 Mutarreb never actually received his NTA, G-Y-R- s application in this case turns upon whether A1 Mutarreb can be “properly charged” with having received notice. Id. at 189. The parties agree that whether an alien is properly charged with receiving an NTA he did not in fact get requires a due process inquiry — whether the method of service is “ ‘reasonably calculated, under all the circumstances, to appri[s]e interested parties of the pendency of the action.’ ” Matter of M-D-, 23 I. & N. Dec. 540, 542 (BIA 2002) (quoting Mullane v. Centr. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)); accord Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997). A1 Mutarreb argues that the method of service employed was not reasonably calculated to reach him. After the NTA was returned as “unclaimed,” A1 Mutarreb points out, the Service made no attempt to send the notice to Al Mutarreb’s street address (which A1 Mutarreb had provided to the Service as an alternative to his P.O. Box). Nor did it mail a copy of the NTA to his counsel of record, Elias Shamieh, as A1 Mutarreb argues 8 C.F.R. § 292.5(a) requires. Instead, the Service affirmatively requested that proceedings go forward without Al Mutarreb. Compare Jones v. Flowers, 547 U.S. 220, 225, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (holding that when the state sends a letter threatening a tax foreclosure via certified mail, and the letter is returned unclaimed, due process requires that the state take “additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.”). A1 Mutarreb also maintains that the Service was required to serve the NTA on his counsel of record, pointing to 8 C.F.R. § 292.5(a) (“Whenever a person is required by any of the provisions of this chapter to ... be given notice ... such notice ... shall be given ... to ... the attorney or representative of record, or the person himself if unrepresented.”). Other provisions of the statute and regulations, however, use the disjunctive “or,” which the government suggests means that the Service may always send an NTA to either the alien or his counsel, regardless of 8 C.F.R. § 292.5(a). See 8 U.S.C. § 1229(a)(1) (“if personal service is not practicable, [notice shall be effected] through service by mail to the alien or to the alien’s counsel of record, if any”) (emphasis added); see also 8 C.F.R. §§ 1003.13, 1003.26(c)(2). Whether 8 C.F.R. § 292.5(a) requires the Service to serve an NTA on an alien’s counsel — if he has one and has so notified the Service' — -is an unsettled question in this Circuit. These are substantial questions, but we need not resolve either of them today. Assuming that notice was sufficient and that the IJ was therefore statutorily authorized to conduct proceedings in absen-tia, we hold, for the reasons explained below, that the resulting removal order is nevertheless invalid. B. Removability IJs are statutorily authorized to order aliens removed in absentia only “if the Service establishes by clear, unequivocal, and convincing evidence that ... the alien is removable” as charged in the NTA. 8 U.S.C. § 1229a(b)(5)(A). Our task on a petition for review is to decide whether substantial evidence supports the IJ’s finding that the Service met its high burden of proving removability. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir.2005). A1 Mutarreb argues that the IJ failed to make any factual findings to support the removal order, and that the BIA improperly engaged in factfinding of its own to uphold the IJ’s order. A1 Mutarreb is correct that the BIA is not authorized to find facts in the course of deciding appeals. See 8 C.F.R. § 1003.1(d)(3)(i), (iv); Matter of Adamiak, 23 I. & N. Dec. 878, 880 (BIA 2006). As the government points out, however, the computer-generated order signed by the IJ allows for only two possibilities: either “[a]t a prior hearing the respondent admitted the factual allegations in the Notice to Appear and conceded removability,” or “[t]he ... Service submitted documentary evidence relating to the respondent which established the truth of the factual allegations contained in the Notice to Appear.” Because there was no “prior hearing” in A1 Mutarreb’s case, the only possibility is that the IJ found sufficient evidence in the record to support the removal “on the charge[ ] contained in the Notice to Appear.” Id. The NTA contained only one charge of remov-ability: A1 Mutarreb’s alleged failure to attend Contra Costa Community College “from August 20, 1999 to Present.” What the BIA appears to have done is to infer that the IJ found the only thing she could have found to support the removal order she issued — that the Service had presented documentary evidence establishing that A1 Mutarreb faded to attend Contra Costa Community College during the dates provided in the NTA. We need not decide whether the BIA stepped outside its statutorily authorized role in drawing that inference, because even if it did not — that is, even if the IJ did make the finding that Al Mutarreb was removable as charged — the record contains not an iota of evidence, let alone substantial evidence, to support the IJ’s removability finding. The sole ground of removability charged in the NTA was Al Mutarreb’s alleged failure to attend Contra Costa Community College from August 20, 1999, to April 3, 2001 (the date on which the NTA was issued). The BIA affirmed the IJ’s finding that “DHS [had] met its burden of establishing [Al Mutarreb’s] removability.” Yet, the evidence in the record could not possibly have established Al Mutarreb’s removability as charged in the NTA. The only evidence in the record to which the Service pointed before the IJ to support this allegation — indeed, the only evidence to which it could have pointed — is Al Mu-tarreb’s asylum application, which lists his educational history. In the application, Al Mutarreb provided information about his schooling in Yemen, but nothing regarding his schooling, if any, in the United States. The government argues that Al Mutar-reb’s failure to list any academic history in the United States supports an inference that he did not attend Contra Costa Community College during the dates charged in the NTA. This inference is simply unsupportable. Al Mutarreb completed and filed his asylum application in August or September of 1999. The charge in the NTA, by contrast, specifically deals with the period from August 20, 1999, to April 3, 2001— after his asylum application was completed and filed. No reasonable adjudicator could have found Al Mutarreb removable as charged when the only evidence proffered in support of the charge relates to an irrelevant time period. The government now makes what is essentially a harmless error argument, suggesting that even if the charge as written in the NTA cannot be sustained on appeal, we should nevertheless affirm the removal order on an alternative ground. The record shows that Al Mutarreb’s student visa was set to expire on August 20, 1999, so his presence in the United States, the government urges, would have been unlawful after that date, and would have supported a finding of removability had the Service so charged. Aside from the serious due process concerns that would arise if we were to affirm a removal order on a ground introduced only on appeal and not raised or litigated below, see Alvarez-Santos v. INS, 332 F.3d 1245, 1252 (9th Cir.2003), the government’s argument fundamentally misunderstands the nature of our review. Whatever the grounds on which Al Mutarreb might have been found removable, only one was charged. We have no power to affirm the BIA on a ground never charged by the Service or found by the IJ. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (noting that a “court is powerless to affirm the administrative action by substituting what it considers to be a more adequate and proper basis” not relied on by the agency); see also Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107 (9th Cir.2006) (holding that an alien’s prior “possession conviction cannot sustain the removal order because it was not alleged in the NTA”). Nor do we accept the government’s contention that A1 Mutarreb’s failure to appear and contest his removability prejudiced the Service in some way that warrants ignoring the fair notice concerns that require the Service to prove what it has charged, not something else. The government asserts that, had A1 Mutarreb “attended the removal proceeding as he was obligated to do,” it would quickly have become apparent that the charge contained in the NTA was incoherent and probably erroneous, and the Service could have corrected it. Yet, when A1 Mutarreb did not appear at his scheduled hearing, the Service affirmatively asked the IJ to proceed in absentia. At that hearing, during which the Service argued its case before the IJ and presented evidence to meet its burden of proof, the Service was required to establish A1 Mutarreb’s remova-bility “by clear, unequivocal, and convincing evidence.” 8 U.S.C. § 1229a(c)(5)(A). At any time prior to the entry of the removal order, the Service could have sought a continuance to amend the NTA or issue additional charges. See 8 C.F.R. § 1003.29 (“The Immigration Judge may grant a motion for continuance for good cause shown.”); id. § 1003.30 (“At any time during deportation or removal proceedings, additional or substituted charges of deportability and/or factual allegations may be lodged by the Service in writing.”). The Service did not do so, but instead requested that the IJ sustain the charge as written in the NTA. That the Service made that choice instead of correcting its own mistake cannot be ascribed to Al Mutar-reb.

3653621-17153

Opinion for the Court by Circuit Judge ROGERS. ROGERS, Circuit Judge: The Center for Biological Diversity and the WildEarth Guardians sued to compel the Secretary of the Interior and the U.S. Fish and Wildlife Service (together, the “Service”) to comply with deadlines set forth in the Endangered Species Act, 16 U.S.C. § 1533(b)(3), for determining whether to list species as endangered or threatened. As the cases neared settlement, the Safari Club International (“Safari Club”) moved to intervene pursuant to Federal Rule of Civil Procedure 24 in order to oppose the settlements which would include three species that its members hunt. The district court denied intervention and approved the settlement agreements. On appeal, the Safari Club contends it qualified for intervention as of right, as well as permissively. We affirm. I. The Endangered Species Act (“ESA”) was enacted, in part, “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] a program for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b). Species receive protection pursuant to a listing process commenced either by the Service, acting on behalf of the Secretary of Interior, or by petition of an interested party. Id. § 1533(a), (b)(3)(A). If the Service determines that listing a species is warranted, it must proceed by rulemaking. Id. § 1533(b)(3)(B)(ii), (b)(5)-(6). The Service must make the decision to formally list a species “solely on the basis of the best scientific and commercial data available,” and upon consideration of any of five factors. Id. § 1533(a)(1), (b)(1)(A). The ESA’s protections apply only after a species is formally listed. Id. § 1538(a). Those protections make it unlawful to “take” any listed species, id. § 1538(a)(1)(B), which includes hunting, id. § 1532(19). Neither the ESA nor the implementing regulations prohibit hunting of species prior to formal listing, including those determined to be warranted-but-precluded candidates for listing. The ESA also establishes timetables for the Service to act on petitions. First, “[t]o the maximum extent practicable, within 90 days after receiving” a petition, the Service “shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” Id. § 1533(b)(3)(A) (the “90-day finding”). Second, “[w]ithin 12 months after receiving a petition ... indicating that the petitioned action may be warranted, the [Service] shall make one of the following findings”: (1) the petitioned action is not warranted, (2) the petitioned action is warranted, or (3) the petitioned action is warranted but “the immediate proposal and timely promulgation of a final regulation implementing the petitioned action ... is precluded by pending proposals to determine whether any species is an endangered species or a threatened species” and “expeditious progress is being made to add qualified species to either of the lists.” Id. § 1533(b)(3)(B). Third, the Service must annually review its warranted-but-preelud-ed findings as if they were resubmitted petitions. Id. § 1533(b)(3)(C)®, (b)(3)(B)(iii). The Service annually publishes a Candidate Notice of Review (“CNOR”), which includes findings on species for which the Service has determined listing is warranted but precluded. This notice responds to petitions to list species as well as the Service’s own identification of species suitable for listing. See, e.g., 2011 CNOR, 76 Fed. Reg. 66370 (Oct. 26, 2011); 2010 CNOR, 75 Fed. Reg. 69222 (Nov. 10, 2010). As ex plained in the 2010 CNOR, “[a] candidate species is one for which [the Service has] on file sufficient information on biological vulnerability and threats to support a proposal to list as endangered or threatened, but for which preparation and publication of a proposal is precluded by higher priority listing actions.” 75 Fed. Reg. at 69222. Over the years, the number of warranted-but-precluded findings has outpaced the number of listings, creating a backlog of candidate species—251 species as of the end of 2010. See id. at 69222-24, 69229-31. At the end of the end of 2007, the average delay in candidate species listings was 10.6 years. In June 2010, the Judicial Panel on Mul-tidistrict Litigation consolidated a dozen lawsuits filed by the Guardians and the Center against the Service, and transferred the cases to the district court in the District of Columbia. Within a year, two settlement agreements emerged: ■ On May 10, 2011, the Guardians and the Service reached an agreement, and the Guardians moved for approval of a consent decree. Under the agreement, the Service committed to adhere to its fiscal year 2011 and 2012 work plans, submit either a proposed rule or a not-warranted finding for the 251 species on the 2010 CNOR by September 2016, in accordance with certain benchmarks, and meet specific deadlines for findings on several candidate species. In return, the Guardians agreed to dismiss their claims in the multidistrict litigation as well as several other cases, not to file any lawsuit to compel compliance with the statutory deadlines or challenge any warranted-but-precluded finding before March 31, 2017, and not to submit more than 10 new petitions annually until September 30, 2016. ■ On June 16, 2011, the Center and Service reached a tentative agreement. Under the agreement, the Service committed to make certain 90-day and 12-month findings by the end of fiscal year 2011 or 2012 and to submit either proposed rules or not-warranted findings for certain candidate species by specific deadlines, while reserving discretion as to the substance of those decisions. The Center agreed to dismiss its claims in the consolidated cases and several other lawsuits, and to the extension of most deadlines set in the agreement if the Center exceeded specified limitations on its ability to sue the Service. The agreement was filed in the district court on July 12, 2011. The Safari Club moved to intervene, pursuant to Rule 24, on June 27, 2011, in order “to oppose and defeat the settlement[s].” Safari Mot. to Intervene at 19. The three species of concern to the Safari Club appear on the 2010 CNOR list: the New England cottontail, the greater sage grouse, and the lesser prairie-chicken. Under the Guardians’ agreement, the Service must list the candidates on the 2010 CNOR as endangered or threatened or find their listing not warranted by September 30, 2016. Both settlements calí for the Service to act on the petitions for the greater sage grouse and New England cottontail by the end of fiscal year 2015; and for the lesser prairie-chicken, by November 29, 2012. The district court denied intervention, finding the Safari Club lacked standing to intervene as of right and that permissive intervention at this late date would cause undue delay and prejudice the parties, and approved the settlement agreements. In re Endangered Species Act Section 4 Deadline Litig., 277 F.R.D. 1 (D.D.C.2011) (“Section 4 Deadline Litig.”). The Safari Club appeals. This court has jurisdiction over the appeal of the denial of intervention as of right, see Alt. Research & Dev. Found. v. Veneman, 262 F.3d 406, 409 (D.C.Cir.2001), and may exercise supplemental jurisdiction in some instances over the appeal of a denial of permissive intervention, see In re Vitamins Antitrust Class Actions, 215 F.3d 26, 31 (D.C.Cir.2000). Our review of the district’s court’s determination on standing is de novo. See, e.g., LaRoque v. Holder, 650 F.3d 777, 785 (D.C.Cir.2011); Nat'l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 937 (D.C.Cir.2004). II. Rule 24(a) provides, in relevant part: On timely motion, the court must permit anyone to intervene who ... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. Fed.R.Civ.P. 24(a). See Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C.Cir.2003); Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C.Cir.1998). This court has held that a movant seeking to intervene as of right must additionally demonstrate Article III standing. See United States v. Philip Morris USA Inc., 566 F.3d 1095, 1146 (D.C.Cir.2009); Fund for Animals, 322 F.3d at 731-32; Military Toxics Project v. EPA, 146 F.3d 948, 953 (D.C.Cir.1998); Mova Pharm., 140 F.3d at 1074; Bldg. & Constr. Trades Dep’t v. Reich, 40 F.3d 1275, 1282 (D.C.Cir.1994). “[T]he underlying rationale for this requirement is clear: because a Rule 24 intervenor seeks to participate on an equal footing with the original parties to the suit, he must satisfy the standing requirements imposed on those parties.” City of Cleveland v. NRC, 17 F.3d 1515, 1517 (D.C.Cir.1994). To demonstrate its standing, the Safari Club invokes the procedural rights doctrine, contending that the settlement agreements “establish an illegal procedure—the elimination of the Service’s statutory authority to find that a proposal to list a species is warranted but precluded by higher priorities.” Appellant’s Br. 28. It maintains that it has shown standing because “this illegal procedure is likely to lead to the listing of three game species,” which “would end the hunting and sustainable use conservation of these species by Safari Club and its members.” Id. Put otherwise, the Safari Club asserts an interest in hunting the three species during the Service’s delays in listing those candidate species. The Supreme Court has afforded special treatment to procedural injuries under Article III, noting that “[tjhere is much truth to the assertion that ‘procedural rights’ are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The doctrine “loosen[s] the strictures” of the standing inquiry, Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1151, 173 L.Ed.2d 1 (2009), by relaxing the immediacy and redressa-bility requirements, Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. An individual can enforce his procedural rights “so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.” Id. at 573 n. 8, 112 S.Ct. 2130. As explained by this court, the doctrine “relieves the plaintiff of the need to demonstrate that (1) the agency action would have been different but for the procedural violation, and (2) ... court-ordered compliance with the procedure would alter the final result.” Nat’l Parks Conserv. Ass’n v. Manson, 414 F.3d 1, 5 (D.C.Cir.2005) (citation omitted). It has treated “[t]he hypothetical in footnote 7 of Lujan [as] representing] the archetypal procedural injury: an agency’s failure to prepare a statutorily required environmental statement before taking action with potential adverse consequences to the environment.” Nat’l Parks Conserv. Ass’n, 414 F.3d at 5. In that hypothetical, “one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency’s failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years.” Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. The Safari Club has neither identified a statutory procedure that the settlement agreements require the Service to violate, nor shown that the warranted-but-precluded finding is designed to protect its interest in delaying formal listing. First, it has not shown that the agreements cause the Service to violate any ESA-mandated procedure. Rather, as the Service puts it, the agreements are “an exercise'—■ not an abdication—of the Service’s authority under the ESA.” Fed. Appellees’ Br. 13. The Service has set a schedule for addressing all candidate species on the 2010 CNOR and therefore, by the dates set in the agreements, will not continue to find listing those species to be precluded. See id. The Safari Club’s position presumes that before the Service can propose to list a species, the ESA requires it first to decide whether listing is precluded. The ESA includes no such procedure. Although the Service must make one of three findings—that listing a species is not warranted, is warranted, or is warranted but precluded—within twelve months after receiving a petition for listing, 16 U.S.C. § 1533(b)(3)(B), the ESA does not require the Service to find that listing a species is precluded under any specific circumstances. Instead, the ESA instructs the Service to make one of the three findings, of which warranted-but-precluded is one. Additionally, the Service may propose to list any qualified species on its own initiative, and the ESA does not condition that authority on findings concerning preclusion. See 16 U.S.C. § 1533(a). Furthermore, Congress has authorized judicial review of only not-warranted and warranted-but-precluded findings, but not warranted findings. 16 U.S.C. § 1533(b)(3)(C)(ii). Its failure to provide for such review indicates it is foreclosed. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003). Instead, a person aggrieved by a warranted finding may challenge the Service’s, final rule listing the species. See, e.g., Bldg. Indus. Ass’n v. Norton, 247 F.3d 1241 (D.C.Cir.2001). Thus, as the Safari Club as much as admits, see Appellant’s Br. 29, 42; Oral Arg. Tape. 8:04-37, when the Service proposes to formally list a species that is on the 2010 CNOR, the ESA provides no means for the Safari Club to assert that formal listing of the species is precluded. Congress’ failure to provide the Safari Club with a means to require continued warranted-but-precluded findings reinforces the conclusion that the ESA contains no such procedural right. Second, the Safari Club has failed to demonstrate that the warranted-but-precluded procedure is “designed to protect some threatened concrete interest of [its] that is the ultimate basis of [its claim of] standing.” Lujan, 504 U.S. at 573 n. 8, 112 S.Ct. 2130. In Center for Law & Education v. Dep’t of Education, 396 F.3d 1152, 1152 (D.C.Cir.2005), several advocacy organizations and a parent sued the Department of Education challenging the composition of a rulemaking committee required by the No Child Left Behind Act. The court held that the organizations lacked standing because the procedures for the rulemaking process were not designed to protect their interests. Id. at 1157. As to the individual plaintiff, the court questioned whether the procedures were “ ‘designed to protect’ the interests of parents and students,” id., noting that Congress’ concern was that the process “ ‘be conducted in a timely manner’ ” and “did not endorse ‘protective’ litigation regarding the formation of the committee amidst the time-limited rulemaking process,” id. So too here. The Safari Club seeks to delay listing of three species that its members hunt while the structure of the ESA’s listing procedures indicates that Congress did not endorse suits to forestall listing .decisions. As the Service points out, this is apparent from both the judicial review provision, which does not authorize review of warranted findings, and the warranted-but-precluded provision, which requires the Service to find that the Service is making “expeditious progress ... to add qualified species” to the lists of endangered and threatened species. 16 U.S.C. § 1533(b)(3)(B)(iii)(II). Other circuits have observed that Congress’ purpose in enacting the ESA provisions setting the timetables for the Service, of which the warranted-but-precluded provision is a part, was “to facilitate the addition of endangered species to the endangered species list.” Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1401 (9th Cir.1995). The Ninth Circuit referenced the legislative history indicating concern about “ ‘the decline in the pace of listing species ... in recent years,’ ” id. at 1400 (quoting H.R. Rep. No. 97-567 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2809), and noted that in the 1982 amendments Congress sought “ ‘to expedite the decisionmaking process and to ensure prompt action in determining the status of the many species which may require the protections of the Act.’ ” Id. (quoting H.R. Cone. Rep. No. 97-835 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2860). Similarly, the Tenth Circuit concluded that in the 1982 procedures Congress sought “to force the Service to act more quickly on petitions to list.” Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249, 1253 (10th Cir.1998), (citing H.R. Conf. Rep. No. 97-835 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2861-62).

72757-7187

ORDER DENYING DEFENDANTS’ MOTION TO COMPEL PRODUCTION MORENO, District Judge. THIS MATTER came before the Court upon the December 5, 2005 Report and Recommendation of Special Master Rodolfo Sorondo, Jr., Esq. (D.E. No. 4664), filed by the Court on December 20,2005. THE COURT has examined the entire file and record and heard oral argument on February 9, 2006. The Court has made a de novo review of the issues presented. Being otherwise fully advised in the premises, it is ADJUDGED that the Court declines to adopt Special Master Rodolfo Sorondo, Jr., Esq.’s Report and Recommendation, dated December 5, 2005, for the reasons stated below. Accordingly, the Defendants’ Motion to Compel production of the Fall 2000 report is DENIED. Background In late 2003, the Defendants served a Rule 30(b)(6) subpoena and notice of deposition upon the American Medical Association. Among other topics, the Defendants indicated that the AMA’s representative would be asked to testify regarding: Any actual or contemplated litigation against any Defendant, including, but not limited to Your assessment or whether to participate as a party in any case consolidated in In re: managed [sic ] Care Litigation, case [sic ] No. 00-134-MD-MORENO [sic ], United States District Court for the Southern District of Florida, Miami Division, including your knowledge as to the AMA Board of Trastees’ decision during its October 2002 meeting not to become a party to MDL 1334. Defendants’ Motion at 2 (quoting Rule 30(b)(6) Subpoena and Notice of Deposition). The AMA designated Leonard Nelson, a lawyer in the Office of the General Counsel, as one of its representatives, and the Defendants questioned Mr. Nelson on this topic. Prior to his deposition, Mr. Nelson reviewed several documents, including the document at issue here, a Fall 2000 report from the Office of the General Counsel to the AMA Board of Trustees discussing whether the AMA should join this litigation as a plaintiff. During his deposition, Mr. Nelson testified that he was not privy to all of the Board’s discussions and deliberations related to whether the AMA should join as a party, but mentioned that he reviewed reports sent to the Board and thought about the matter in preparation for the deposition. Specifically, Mr. Nelson noted that he reviewed the Fall 2000 report. The Court has reviewed the report in camera and agrees that the document is protected by both the attorney-client privilege and the work product doctrine. Notwithstanding the privileged nature of the document, Special Master So-rondo recommended that the Court order the AMA to turn over the document. The AMA objects on several grounds. First, the AMA argues that, because Mr. Nelson used the document “to educate” himself rather than “to refresh” his memory as required by Federal Rule of Evidence 612, the Defendants are not entitled to discover the report. Second, the AMA argues that Rule 612 requires the party seeking disclosure to show that the writing had an impact on the testimony of the witness. According to the AMA, the Defendants did not show that the report had any impact on Nelson’s testimony. Rather, the AMA argues that Master Sorondo simply inferred that the report provided a substantial basis for Mr. Nelson’s knowledge, but Mr. Nelson never testified that he relied on the document in answering deposition questions. Third, the AMA argues that Master Sorondo misapplied the applicable test when he determined that the interests of justice compelled production. Instead, the AMA argues that the factors weigh against disclosure of the report. Fourth, the AMA notes that Master Sorondo should not have recommended disclosure of the report after concluding that the report is attorney-client privileged and that the AMA did not waive the privilege. In response, the Defendants argue that the AMA’s deliberate choice of a 30(b)(6) designee without personal knowledge of the facts giving rise to the AMA’s decision to not participate as a party created the “dilemma” noted by the AMA — the tension between complying with the 30(b)(6) requirements and maintaining the privileged nature of the report. Thus, the Defendants assert that the Court should adopt Master Sorondo’s report and recommendation. Second, relying on cases holding that use of a privileged document to refresh a witness’ recollection results in automatic waiver of the privilege, the Defendants argue that Mr. Nelson’s review of the report resulted in automatic waiver of any privilege. Finally, the Defendants assert that Master Sorondo’s analysis and conclusions were correct, and thus, they urge the Court to adopt his recommendations. Analysis Rule 612 provides, in relevant part: [I]f a witness uses a writing to refresh memory for the purpose of testifying, either— (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. According to the leading appellate decision discussing Rule 612, the rule requires proponents of discovery to meet three conditions before they may obtain documents used by a witness before testifying: (1) the witness uses the writing to refresh his memory; (2) the witness uses the writing for the purpose of testifying; and (3) the court determines that production is necessary in the interests of justice. Sporck v. Peil, 759 F.2d 312, 317 (3d Cir.1985). Thus, the production of writings used to refresh a witness’ recollection prior to testifying is left to the discretion of the court in the interests of justice. See, e.g., Fed. R.Evid. 612 advisory committee’s notes. The Advisory Committee Notes to Rule 612 recognize the potential conflict between the need for disclosure and assertions of privilege, stating that “nothing in the Rule [should] be considered as barring the assertion of a privilege with respect to writings used by a witness to refresh his memory.” Id. Accordingly, courts typically resolve the conflict by balancing the need for disclosure for effective cross-examination with the protection against disclosure afforded by relevant privileges. See, e.g., Suss v. MSX Int’l Eng’g Sens., Inc., 212 F.R.D. 159, 163 (S.D.N.Y.2002); EEOC v. Continental Airlines, Inc., 395 F.Supp.2d 738, 744 (N.D.Ill.2005). Unfortunately, the cases do not provide a uniform framework for analyzing these competing interests. See, e.g., Suss, 212 F.R.D. at 163 (noting courts’ disparate approaches to balancing the competing interests). This Court finds, as several other courts have found, that the balancing should be tailored to the particular privilege asserted. See, e.g., id.; Continental Airlines, 395 F.Supp.2d at 744. Here, the document is both attorney-client privileged and protected by the work product doctrine. Because the attorney-client privilege affords greater protection, and because the Court concludes that the attorney-client privilege protects the report from disclosure, the Court need not address the work product doctrine.

616284-20417

WEBSTER, Circuit Judge. William Thomas was convicted of attempted aggravated bank robbery in violation of 18 U.S.C. § 2113(d). In his appeal, Thomas challenges (1) the volun-tariness of his pre-trial confession, (2) the trial court’s instruction to the jury on the meaning of “putting in jeopardy” as used in the statute, (3) the propriety of the court’s sending the exhibits to the jury room, (4) the refusal to grant a mistrial after two allegedly inconsistent verdicts were returned, and (5) the sufficiency of the evidence to support the judgment of conviction. The government’s evidence adduced the following facts: On February 25, 1974, a black male wearing a burgundy turtleneck sweater which partially covered his face entered the Palestine, Arkansas, branch of the First National Bank of Eastern Arkansas, a federally insured bank. He approached a teller who was sitting behind a bulletproof glass mounted on a counter and pointed a pistol into the customer exchange slot on the surface of the counter. He said something inaudible while motioning toward the door of the teller’s area as if to indicate that he wished to enter. The teller asked, “Are you serious?” and sounded the alarm, whereupon the would-be robber turned and started out the front door. He was observed driving away in a white Ford Fairlane, middle 60’s model, with an Arkansas license plate numbered AJC-840. Approximately one month later, the teller observed Thurston Williams, a customer of the bank, wearing a sweater identical to that worn during the attempted robbery. She knew that Thur-ston Williams was not the robber. A few months later, she observed appellant Thomas and his brother outside the bank. Thomas fit the description of the man who had attempted to rob the bank, and she noticed that he shook his head in a negative manner and waited outside while his brother entered the bank to transact some business. A 1967 white Ford Fairlane bearing the Arkansas license number AJC-840 was found abandoned in a field approximately five miles from the bank on March 12, 1974. Two FBI agents, who had received information that appellant had been seen near the vehicle, contacted Thomas and asked him to consent to their taking his fingerprints for elimination purposes, which he did. One of the latent fingerprints lifted by the FBI from the car matched Thomas’ left middle fingerprint. Because Thomas appeared very nervous during the fingerprinting process, he was detained for further interrogation by the FBI. The agents read Thomas his constitutional rights and, stating that he understood those rights, Thomas signed the “Warning of Rights and Waiver Form” which had been read to him. He then admitted that he had stolen the getaway car from a service station where it was parked, borrowed the burgundy turtleneck sweater from Thur-ston Williams, driven to the bank and attempted to rob it. Thereafter, Thomas accompanied the agents to Williams’ home where they recovered the sweater. The agents then arrested Thomas and put his statements into writing. Thomas signed and dated the transcribed confession and initialed “WT” in the various places where corrections had been entered. Thomas then accompanied the agents to a trailer behind his mother’s home where, in the presence of his mother and several relatives, the .22 calibre pistol used in the attempted robbery was re trieved from an air conditioning duct. Upon his mother’s inquiry, Thomas acknowledged that he had committed the attempted bank robbery. He was thereafter charged with putting in jeopardy the life of the teller, Jennie Lou Hanner, while attempting to rob the Palestine branch bank, in violation of 18 U.S.C. § 2113(d). A jury found him guilty of committing the offense charged. I. THE CONFESSION The District Court conducted a hearing on the voluntariness of the confession out of the hearing of the jury, see Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), at which Thomas testified. According to his version of the circumstances surrounding his confession, he was not advised of his constitutional rights until after the recovery of the sweater and pistol, when the FBI agents began putting his alleged confession into writing. Thomas claimed at the pre-trial hearing on the confession that, once warned, he remained uncertain as to the meaning of his constitutional rights, though he admitted knowing that he was entitled to remain silent and to consult an attorney. He testified that although he asked to see an attorney, he was not permitted to do so but was told that he would see an attorney “in time.” He claimed that he had signed the statement only because the FBI agents had threatened to charge him with other crimes. He asserted that he had not voluntarily signed the statement and that he had not initialled the pages of the statement. The conflict between appellant’s version of the circumstances surrounding his confession and that of the government presented a question of credibility for the trier of fact. United States v. Harvey, 483 F.2d 448, 449 (5th Cir. 1973), cert. denied, 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed.2d 112 (1974); United States v. Crovedi, 467 F.2d 1032, 1036 (7th Cir. 1972), cert. denied, 410 U.S. 990, 93 S.Ct. 1510, 36 L.Ed.2d 189 (1973). At the close of the pre-trial hearing, Judge Eisele resolved this conflict in favor of the government, stating “I am convinced by the proof that the statement is voluntary and was given by the defendant with full knowledge and awareness of his rights — that is, after he had been advised of his rights.” He further found that the fingerprints were furnished voluntarily, as were the sweater and the gun and overruled the motion to suppress. Such findings are not clearly erroneous, and we perceive no error of law in the admission of the sweater, the pistol, and the confession. Mullins v. United States, 487 F.2d 581, 583 (8th Cir. 1973); United States v. McNally, 485 F.2d 398, 406 (8th Cir. 1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1566, 39 L.Ed.2d 874 (1974). II. “PUTTING IN JEOPARDY” The teller testified at trial that she had been afraid and concerned for her safety during the incident. The offense under 18 U.S.C. § 2113(d) is defined as including all of the elements of attempted bank robbery by means of intimidation, 18 U.S.C. § 2113(a), plus the additional element of placing in jeopardy the life of a person by means of a dangerous weapon or device. It is often referred to as aggravated bank robbery and carries a maximum punishment of twenty-five years imprisonment compared with twenty years for a violation of 18 U.S.C. § 2113(a). In his charge to the jury, Judge Eisele defined “dangerous weapon or device” and “to put in jeopardy the life of a person,” as follows: [A] ‘dangerous weapon or device’ includes anything capable of being readily operated, manipulated, wielded, or otherwise used by one or more persons to inflict severe bodily harm or injury upon another person. So, an operable firearm, such as a pistol, revolver, or other gun, capable of firing a bullet or other ammunition, may be found to be a dangerous weapon or device. To ‘put in jeopardy the life’ of a person ‘by the use of a dangerous weapon or device’ means, then, to expose such person to a risk of death, or to the fear of death, by the use of such dangerous weapon or device. You may find that the defendant put in jeopardy the life of another person even though the defendant did not have actual ability to inflict severe bodily harm or injury. It is sufficient if the defendant created in the mind of a reasonable person the apprehension of death or serious bodily harm or injury by the use of an apparently dangerous weapon or device. Appellant objects to the giving of the instruction because he contends there was insufficient evidence of putting in jeopardy to submit the aggravated offense to the jury. He asserts that, since there was no evidence that the pistol used in the robbery was loaded, at most the lesser included offense of attempted robbery by intimidation, 18 U.S.C. § 2113(a), should have been submitted to the jury. While objection at trial to the first two paragraphs of the quoted instruction can be found, if at all, only in Thomas’ general objection on sufficiency grounds, he did specifically object to the third paragraph of the quoted instruction on the ground that it permitted “jeopardy” to be established without objective evidence that at the time of the robbery he possessed the ability to inflict severe bodily harm or injury. The latter objection was well taken. The instructions on putting in jeopardy, especially the third quoted paragraph, conflict with our holding in Morrow v. United States, 408 F.2d 1390, 1391 (8th Cir. 1969), in which we said: The test of whether a victim’s life has been placed in danger is an objective one; “not whether the employee was put in fear but whether his life was put in danger by the use of a dangerous weapon.” (Emphasis supplied.) United States v. Donovan, 242 F.2d 61, 63 (2d Cir. 1957), rev’d on other grounds sub nom. Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). In satisfying the objective test, however, express proof that the gun used in a bank robbery was loaded is not required. The jury may infer this fact from the circumstance itself. United States v. Cady, 495 F.2d 742, 746 n. 7 (8th Cir. 1974); Morrow v. United States, supra. The jurors were not so instructed, however, because the third quoted paragraph permitted them to find that defendant had placed the teller’s life in jeopardy if she reasonably feared for her life because the weapon was “apparently dangerous.” While the fact that a gun was loaded and therefore dangerous may be inferred from the circumstances, the fact of jeopardy cannot be found simply because the weapon “appeared” to be dangerous to the victim, however reasonable her fears. From the former may be found jeopardy; from the latter may be found merely intimidation, the lesser included offense. Unless placing in jeopardy can be said to mean more than placing in fear, then nothing has been added to § 2113(d) over § 2113(a) to explain or justify the enhanced punishment which subdivision (d) permits. United States v. Marshall, 427 F.2d 434, 437-38 (2d Cir. 1970); see United States v. Marchbanks, 469 F.2d 72, 74 (5th Cir. 1972). We dealt with the first two paragraphs of the quoted instruction given by Judge Eisele in United States v. Cady, supra. We held in that case that permitting evidence of “fear of death,” instead of requiring the jury to find that the victim’s life was in fact placed in danger by means of a weapon capable of causing harm, was at most harmless error since there was undisputed evidence in the case that at least one gun was loaded. In this case no such undisputed facts are present to render the instructions harmless. The instructions as given authorized the jury to convict under 18 U.S.C. § 2113(d) upon minimum findings which would be sufficient only to convict under 18 U.S.C. § 2113(a), the lesser included offense. We cannot say with fair assurance that the jury would have found defendant guilty of the aggravated offense notwithstanding the erroneous instruction. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The third quoted paragraph is clearly contrary to our holding in Morrow and its use must be discontinued along with the “or to the fear of death” clause (in the second quoted paragraph) which spawned it. III. THE EXHIBITS Appellant contends the trial judge committed prejudicial error when he sent all of the exhibits, including the gun, to the jury room following the jury’s request to see the signed confession which had been received in evidence as a government exhibit. The manage ment of exhibits lies in the sound discretion of the trial judge, and an appellate court will not interfere unless there has been a clear abuse of discretion. United States v. Parker, 491 F.2d 517, 521 (8th Cir. 1973), cert. denied, 416 U.S. 989, 94 S.Ct. 2396, 40 L.Ed.2d 767 (1974). We think Judge Eisele acted wisely, since sending the confession alone to the jury might have caused undue emphasis to be placed upon one exhibit in the case. IV. INCONSISTENT VERDICTS When the jury returned following its deliberations, it presented two verdict forms showing a verdict of guilty both of the major offense charged in the indictment and of the lesser included offense of attempted bank robbery which did not put in jeopardy the life of any person by the use of a dangerous weapon. Judge Eisele, after conferring with counsel, reserved ruling on defense counsel’s motion for mistrial based upon inconsistent verdicts and ordered the jury to return for further deliberations. Judge Eisele instructed the jury as follows: The point I think I need to make at this juncture is that if you find the defendant guilty of the crime included in the indictment, which is of attempting to rob the bank and putting the life of the teller in jeopardy, then that is the only form that needs to be filled out. If you do not find that to be the case, but find that he is guilty of attempting to rob the bank without putting her life in jeopardy, then only one of them needs to be signed; and that is the lesser included offense. Thereafter the jury returned with a single verdict form finding defendant guilty of the offense charged in the indictment. At request of defense counsel, the jury was polled and each juror concurred in the verdict. The procedure followed by Judge Ei-sele was exactly the procedure which we recommended in United States v. Howard, 507 F.2d 559, 562 (8th Cir. 1974), where we said: We * * * suggest that, in future cases where a verdict not in proper form or arguably unclear is rendered, the jury be returned to their room for further deliberations to correct the problem. See also United States v. Walker, 456 F.2d 1037, 1039 (5th Cir. 1972); United States v. Wolford, 144 U.S.App.D.C. 1, 444 F.2d 876, 887 (1971); United States v. Henson, 365 F.2d 282, 284 (6th Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 513, 17 L.Ed.2d 437 (1966); Helms v. United States, 310 F.2d 236, 240 (5th Cir. 1962). This contention is without merit. V. SUFFICIENCY OF THE EVIDENCE We have no doubt that the evidence presented was sufficient, if believed, to support a conviction for violation of the aggravated offense of § 2113(d) and necessarily the lesser included offense of § 2113(a). When a challenge is made to the sufficiency of the evidence, it must be viewed in the light most favorable to the government. United States v. Swanson, 509 F.2d 1205, 1210 (8th Cir. 1975); United States v. Hutchinson, 488 F.2d 484, 489 (8th Cir. 1973), cert. denied, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974). The testimony of eyewitnesses, together with appellant’s own confession and the physical evidence admitted at trial, formed convincing evidence from which a jury might reasonably find beyond reasonable doubt that the defendant attempted to rob the bank and while doing so placed the life of the teller in jeopardy by the use of a dangerous and deadly weapon. Whether, in view of the bulletproof glass which protected'the teller and the nature of the exchange slot on the surface of the counter, the appellant was capable of placing the teller’s life in jeopardy was an issue of fact to be determined by the jury. Thus the error in this case was not in the sufficiency of the evidence, but rather in permitting the jury, under the instructions as given, to return a verdict of guilty under the major offense “even though the defendant did not have the actual ability to inflict severe bodily harm or injury.” This instruction permitted a finding of guilty of the aggravated offense upon findings which would, for reasons stated above, be sufficient only to convict on the lesser offense of attempted robbery by intimidation. Our disapproval of the instruction does not, under the circumstances of this case, require reversal and a new trial. The issue of defendant’s guilt under the lesser included offense was properly submitted to the jury and, in fact, the jury originally returned a verdict of guilty on both the major and lesser offenses. It will be sufficient in this case to vacate the sentence imposed under § 2113(d) and to remand for resentencing under § 2113(a). See Scruggs v. United States, 450 F.2d 359 (8th Cir. 1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972); United States v. Marshall, supra. The trial court had all of the facts before it at time of sentencing. Appellant was sentenced to four years imprisonment, well within the maximum limits of both § 2113(a) and § 2113(d). While a motion to reduce sentence would lie under Rule 35, Federal Rules of Criminal Procedure, we prefer to vacate the original sentence in order that the trial judge may exercise his discretion anew under 18 U.S.C. § 2113(a). Remanded for further proceedings in accordance with this opinion. . 18 U.S.C. § 2113(d) provides: Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both. . Cleophus McNeal, who owned the vehicle used as the getaway car, had left the automobile with a “For Sale” sign at a service station in Forrest City, Arkansas. He had last seen the automobile at 10 p. m. on the night before the attempted bank robbery. The car was missing on the next day. . Appellant had pointed out the duct to the agents, and when they were unable to reach the pistol hidden therein, one of appellant’s relatives retrieved it for them. . The United States District Court for the Eastern District of Arkansas, The Honorable G. Thomas Eisele presiding. . See note 1, supra. . 18 U.S.C. § 2113(a) provides: Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, manage ment, or possession of, any bank, credit union, or any savings and loan association . sfe * * s|e Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both. . Other courts have found an objective test to be necessary in varying degrees. It has been rejected by the Sixth Circuit in United States v. Beasley, 438 F.2d 1279 (6th Cir.), cert, denied, 404 U.S. 866, 92 S.Ct. 124, 30 L.Ed.2d 110 (1971). But see United States v. Thomas, 455 F.2d 320 (6th Cir. 1972). The Fifth Circuit has found that in the highly charged atmosphere of a bank robbery by robbers bearing drawn guns, persons are placed in jeopardy as a matter of law. Baker v. United States, 412 F.2d 1069, 1071-72 (5th Cir. 1969), cert, denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970); accord, United States v. March-banks, 469 F.2d 72 (5th Cir. 1972). The Seventh Circuit goes directly to a permissible finding of “in jeopardy” when a gun “is visible and where its display backs up [the robber’s] demands.” United States v. Roustio, 455 F.2d 366, 371 (7th Cir. 1972). See also United States v. Shelton, 465 F.2d 361 (4th Cir. 1972). The Second, Ninth and Tenth Circuits have focused, as have we, upon the permissible inference which a jury may draw that a gun displayed during a bank robbery was loaded and therefore objectively capable of causing harm. United States v. Marshall, 427 F.2d 434 (2d Cir. 1970); Wagner v. United States, 264 F.2d 524, 530 (9th Cir.), cert, denied, 380 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548 (1959); Lewis v. United States, 365 F.2d 672 (10th Cir. 1966), cert, denied, 386 U.S. 945, 87 S.Ct. 978, 17 L.Ed.2d 875 (1967). . Direct evidence [that a gun is loaded] is unnecessary. “When * * * a robber displays a gun to back up his demands, he wants the victim to believe that it is loaded, and the factfinder may fairly infer that it was.” Wagner v. United States, 264 F.2d 524, 530, n. 8 (9th Cir.), cert, denied 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548 (1959); Wheeler v. United States, 317 F.2d 615, 618 (8th Cir. 1963). The defendant introduced no evidence to show that the guns were not loaded and, therefore, the jury could properly infer that they were loaded. 408 F.2d at 1391.

1310377-9625

AINSWORTH, Circuit Judge. This is an appeal from the denial of the United States District Court of an application filed by Judge Jerry Woodard, presiding state judge in El Paso County, Texas, to expunge a federal grand jury report from the federal district court’s records at El Paso, Texas. The “Report of Grand Jury Proceedings” was presented by the jury to the federal district court on June 15, 1972. Pursuant to the request of the grand jury, the district judge directed the clerk to file the report as a public record. Judge Woodard then filed an application to expunge the entire report. Before this application was acted upon, Judge Woodard sought and obtained from this Court an order directing the lower court to rule on the application within ten days, without a hearing or the taking of evidence. The district court’s denial of the application followed. The various issues presented on appeal basically raise two questions: whether the federal grand jury had the power or the authority to make the report, and whether the report should be expunged. The facts underlying this controversy are as follows: Judge Woodard, as presiding judge in the District Court of El Paso County, Texas, Thirty-Fourth Judicial District, dismissed a state narcotics case on April 18, 1972, pursuant to a motion by the assistant district attorney representing the State of Texas. The motion to dismiss the prosecution in the state case was made after a federal agent testifying at the trial allegedly made inconsistent statements. Subsequently the El Paso federal grand jury investigated the circumstances of the dismissal to determine whether there had been any violations of federal statutes involved. Apparently the grand jury was concerned with possible effects on the credibility of the federal agent because of the inference that his testimony was critical to pending federal narcotics cases. This investigation led to the “Report of Grand Jury Proceedings.” Pertinent portions of the text of the report read: “After hearing numerous witnesses, it was apparent to us that the variances in testimony by the federal officer, who was not even the star witness, and on whose testimony the decision to call a mistrial was based, could have been reconciled without too much difficulty, and indeed, the mistrial could have been avoided altogether had the witness been properly prepared by the District Attorney’s office prior to the trial. It is unrealistic to expect a witness to recall exact dates from as far back as a year ago. Therefore, we strongly recommend that every law enforcement officer who serves as a witness in a trial should not only , be allowed to review the case history prior to the trial, but should be required to do so. “El Paso has a serious drug problem, and trials are very expensive. It is, therefore,the recommendation of this Grand Jury that in the future the District Attorney’s office take more precaution to prepare their witnesses prior to the trial, and during the actual trial, make a more determined effort to keep the main objectives of the case in mind, making certain any variances in testimony truly cannot be reconciled before calling a mistrial. “We feel officer DeHoyos has done an excellent job and that all charges and accusations made against him were completely unfounded. “We feel that the atmosphere surrounding the entire trial i. e. the defense attorney hurling accusations at witnesses, newspaper reporters appearing on cue, etc. was not in the best interests of justice or the people of the City of El Paso. “We further feel that the Judge and District Attorney by dismissing the charges before completion of the trial did a disservice to the people of El Paso at large and in particular to those persons who were empaneled and sit ting as a jury in consideration of this case. “The Grand Jury recommends that this report be filed as a public record.” In denying the application, the district judge reasoned that the court had nothing to do with the investigation by the grand jury of the matter involved in the report; that the court could not scrutinize matters considered by the grand jury; and that the court had no power to direct, control, suppress, influence, or interfere with the investigations, deliberations, recommendations, and reports of the grand jury. The court felt that the grand jury lawfully exercised its inquisitorial powers in the investigation of possible federal offenses, and that it acted within its authority in wishing to “clearly reflect its conscientious conclusion as to the public perjury charges against the federal officer and the conduct of the state officials involved therein.” The court further stated: “Undoubtedly, the Federal Grand Jury, having concluded that the charges against this federal officer were unfounded, felt that it should report its findings to the Court. While, as stated above, it is the opinion of this Court that it has no discretion and no power to pass upon the propriety of a report by a Federal Grand Jury, if it did have such power, it would find that the conduct of the Grand Jury in this ease was proper.” Appellant contends that the grand jury can only lawfully indict or return a no true bill, and that it is powerless to speak publicly of any other matter; indeed, that it has no other public existence. Because we decide the instant case on other grounds, we pretermit the issue of whether a federal grand jury has the authority to make reports. We point out, however, that there is persuasive authority and considerable historical data to support a holding that federal grand juries have authority to issue reports which do not indict for crime, in addition to their authority to indict and to return a no true bill. We find that the substance of the report, however, bears little relevance to federal subject matter and is concerned mostly with a purely local affair. The report itself shows no adequate or sufficient reason to assume a federal concern where critical determinations are made about a local controversy involving the conduct of a state trial for violations of Texas state laws. There is no apparent federal purpose to be served by the reference to Judge Woodard and to the state district attorney, and the United States Attorney has not supplied this Court, in brief or in oral argument, any good and sufficient reason for the grand jury’s report. Accordingly, we have concluded to require that the district judge order expunction of the portions of the report which deal with purely local affairs, as follows: . [T]he mistrial could have been avoided altogether had the witness been properly prepared by the District Attorney’s office prior to the trial. It is unrealistic to expect a witness to recall exact dates from as far back as a year ago. Therefore, we strongly recommend that every law enforcement officer who serves as a witness in a trial should not only be allowed to review the case history prior to the trial, but should be required to do so. . It is, therefore, the recommendation of this Grand Jury that in the future the District Attorney’s office take more precaution to prepare their witnesses prior to the trial, and during the actual trial, make a more determined effort to keep the main objectives of the case in mind, making certain any variances in testimony truly cannot be reconciled before calling a mistrial. We further feel that the Judge and District Attorney by dismissing the charges before completion of the trial did a disservice to the people of El Paso at large and in particular to those persons who were empaneled and sitting as a jury in consideration of this case. Vacated and remanded with directions that the district court order that the Clerk of the United States District Court, Western District of Texas, El Paso Division, expunge those portions of the “Report of Grand Jury Proceedings” filed on June 15, 1972, which are described above. Vacated and remanded with directions. . The first paragraph of the grand jury’s report states that the testimony of the federal officers was discredited in the trial in question and that the grand jury conducted hearings to inquire into the circumstances involved. At oral argument, the Assistant United' States Attorney stated to this Court that he had referred the matter to the grand jury for their consideration. In his order denying the application for expunction, the district judge stated that the federal agent involved in the state mistrial “had made numerous narcotic cases which were pending in the State Court and some of which were connected with the case that was dismissed. Likewise he had made numerous federal narcotic cases on which a Federal Grand Jury had returned indictments. The United States Attorney had reason to believe that there was a possible conspiracy to discredit this officer in order to prevent the prosecution of these state and federal cases in which he was involved.” . Although* there are cases, most of which concern state grand jury reports, which allow expunction and cases which uphold grand jury reports, we have found no case with the same factual situation as the one presented on this appeal. Most decisions are made on the basis of the facts of the case. Among the factors considered are: whether the report describes general community conditions or whether it refers to identifiable individuals; whether the individuals are mentioned in public or private capacities; the public interest in the contents of the report balanced against the harm to the individuals named; the availability and efficacy of remedies; whether the conduct described is indictable.

1763122-10608

CAMPBELL, District Judge. This is an action in equity for the alleged infringement of patent No. 1,466,437, issued to Percy L. Hill, deceased, by James W. Anderson, as administrator of the estate of Percy L. Hill, for process for making character carriers for composing machines, granted August 28, 1923, original application filed August 12, 1919, divisional application filed February 5, 1923. The plaintiffs are Matrix Contrast Corporation, as licensee, and James W. Anderson, as administrator of the estate of Percy L. Hill, deceased, patentee. The defendant is an individual who has interposed an answer, setting up the twofold defense of invalidity and noninfringement. The line-easting machine art, to which the patent in suit applies, is to-day represented by the Mergenthaler linotype machine, which came on the market 40 years ago, and the intertype machine, which appeared about 12 years ago. In operating a linotype machine, the operator sits facing a keyboard, which has su- • perfieial resemblance to the keyboard of a typewriter. When he strikes a key, one of the matrices having a corresponding letter is released from the magazine and drops down a channel to a conveyor belt, which carries it to a point where a star wheel cam throws the matrix to an assembler or assembling box. The operator similarly brings down the matrices for the other letters and for large spaces between lines, and all are grouped in the assembler. The length of the printed line is positively fixed, and the operator often finds the line unfilled after he has put in all the words and syllables which the line will contain. His remedy is to touch a key, which will bring down one or more thin spaces, until the warning bell or his own observation shows him that the line is full. To prevent leaving the large space at the end of the line, the operator distributes the spaces at intervals throughout the line. The operator does, when he observes errors and on other occasions, change the location of matrices by hand. The magazines are limited to 90 characters, or less, and the operator'is frequently called on to use extra characters, called “side sorts,” which he picks by hand from an unclassified tray, called a “pi-tray,” or “pi-stacker,” which may contain 30 or more different characters or side sorts. Errors are of frequent occurrence and very costly, and a great saving can be made if the operator can readily observe an error when the matrices are in the assembling box, before the slugs are cast. It is unnecessary to go into detail as to the methods of discovering and correcting errors, it being sufficient to say that the error can best be prevented, and the expense saved, by making it possible for the operator to easily observe what characters are represented by the matrices brought down. For 30 years the only assistance which was given to the operator was the indentation of a small character in the narrow edge of the matrix, and the provision of an artificial light with a reflecting shield, which directed its beam at the line of matrices in the assembler. The matrices are brass, and because of their use the indentations become filled with grease, the surrounding surfaces discolored and dirty, causing them to look alike. To overcome this, the matrices were cleaned with cleaning fluids, producing a greater evil on a glittering surface, which reflected light rays into the eyes of the operators, with disastrous results to the eyes of the operators, due to eye strain. The problem which confronted Hill was: - (1) To reduce the glare of artificial light reflected from the brass matrices as they stood in the assembler box. (2) To make the matrices legible in such a way that there can be simultaneous verification of an entire line of matrices. The purposes of the invention are fully set forth in the specification of the patent in suit. The instant suit is based on both claims of the patent in suit, which read as follows: “1. The process of coloring a light colored metallic matrix adapted for line easting machines and having on its edge an indented indicating character, said process including treating said edge including said indicating character to make the same dark or black and thereafter filling in the indented indicating character with a lighter colored or white pigment. “2. The process of coloring a light colored metallic matrix adapted for line-easting machines and having on its edge an indented indicating character, said process including treating said edge including said indicating character to deaden the light reflecting quality thereof and also to make the same dark or black, and thereafter filling in the indented indicating character with a pigment of high light refleeting quality and contrasting sharply in color with the resultant treated edge.” Defendant offered no evidence of prior ase, and only offered two prior art patents alleged as anticipations: Patent No. 965,155, issued to George W. Clarke, for matrix-plate, granted July 26, 1910. This patent does not concern the art of linotype or intertype machines. The operation is described in the specification of the patent as follows: “In operating this system, the matrix plates are not distributed like type, but are spread out indiscriminately on an operating table. This table should preferably be arranged so that the matrix plates 1, 2, 3, by ■ which nearly all the work is done, are kept separate from the other matrix plates which are rarely used. The operator selects the proper matrix plate for each letter by the color, and places them in his left hand, one behind the other, for the proper sequence of letters to form a word. When the matrices of the words of a line have been thus arranged, and their matrix plates suitably spaced, a line is cast therefrom.” Prom this description of the operation, it is clearly shown that it is confined to handwork, with ample opportunity to observe the character represented, with no glare to contend with and to be overcome, and the use of color to identify the characters on the plate. The colors red and yellow, among those mentioned, would not tend to accomplish the important purpose of reducing the glare. The purpose of the use of the color is entirely different from that of the patent in suit. Patent No. 744,836, issued to Prank W. Weeks, for type, granted November 24,1903. This patent is not related to the linotype art. It deals entirely with hand operations, the old hand-set type, and not a matrix. There is no glare of the artificial light of a line-casting machine to overcome, no small indented characters on the narrow edge of a matrix to be observed. The color in this patent is applied only to the indented indicating character, and not to the surrounding surface, on the end of the body opposite the printing face. The object of the invention is to make possible composition by the unskilled, and to relieve from the necessity of taking proofs, and the application is described in the specification as follows: “The . duplicate character is coincident with the printing character, and hence while the printing characters are arranged in reverse face relation, as is usual, the duplicate characters are so arranged as to appear in the relation as when printed upon a sheet, so that the matter composed can be read at a glance from the duplicate characters.” These patents do not anticipate. The contention of the defendant, that the process of the patent in suit was obvious, and not invention, is a familiar one. Knowledge after the fact is common. The need of the invention is apparent; no one else, by the Hill or any other process, produced the beneficial results during the years since the first linotype machine came on the market; the Hill process solved the problem successfully, from both the humanitarian and commercial standpoint; and there has been general acquiescence during the time since the Hill patent issued.. Even if, as the defendant contends, it was common practice long prior to Hill to darken brass and fill in indented indicating characters with white filler, to show which defendant offered, in addition to the said patents to Clarke and Weeks, pages of Henley’s Twentieth Century Book of Receipts, American Encyclopedia of Formulas, and catalogue of Schaeffer & Bundenberg Manufacturing Company of 1913, yet invention may reside in the conception of the idea for remedying defects, and in the valuable' result, even though the means for carrying out this concept be simple and old. Cash Reg. Co. v. Cash Indicator Co., 156 U. S. 502, 514, 515, 15 S. Ct. 434, 39 L. Ed. 511, 515, 516; American Steel Foundries v. Damascus Brake Beam Co. (C. C. A.) 267 F. 574, 576; Tompkins-Hawley-Fuller Co. v. Holden (C. C. A.) 273 F. 424, 435; Wallace v. Noyes (C. C.) 13 F. 172, 180. There were old and well-known processes for darkening brass surfaces, and there were old and well-known methods for filling indentations with white coloring matter, and these were the means utilized by Hill for reducing the process to practice. As we have seen, the purpose of the use of colors in the two patents cited was re"mote from that of the patent in suit. Rottach’s use of a black and white process for name plates for scales; the use of a black and white process on thermometers, and the various receipts, formulas, and processes for blackening brass, are all remote. The value of the Hill invention to the new industry, the fact that no others had transferred the old process to the new art before Hill, and the obstacles apparent to the introduction of the old process to matrices, due to the character of their use, especially the heat and the necessity of not interfering with their movement through the channels, all bring the invention of the patent in suit within the doctrine that it is invention to transfer an old device to a new and nonanalogous art. Potts v. Creager, 155 U. S. 597, 606-608, 15 S. Ct. 194, 39 L. Ed. 275, 278, 279; Smokador Mfg. Co. v. Tubular Products Co. (C. C. A.) 31 F.(2d) 255, 256; Williams v. American String Wrapper Co. (C. C. A.) 86 F. 641. Nothing more strongly shows that the invention of the patent in suit was not obvious than the fact that for 30 years skilled workmen had suffered from eye strain and as a result a limitation of vision, if not blindness, and the commercial loss due to errors which the operator was unable to correct, and no skilled workman had previously adopted the process of the patent in suit. Potts v. Creager, supra; Webster Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177, 1181; Du Bois v. Kirk, 158 U. S. 58, 63, 15 S. Ct. 729, 39 L. Ed. 895, 898.

3269756-23785

Judge ERDMANN delivered the opinion of the court. Staff Sergeant Stanley E. Edmond was tried at a general court-martial by a panel of officer and enlisted members. He was convicted of conspiracy to commit larceny, absence without leave, false official statements, wrongful disposition of military property, ■wrongful use of controlled substances, larceny, and theft of services, in violation of Articles 81, 86, 107, 108, 112a, 121 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 886, 907, 908, 912a, 921, 934 (2000). He was sentenced to a reduction in grade to E-l, confinement for seventy-three days, and a bad-conduct discharge. The convening authority approved the sentence and credited Edmond with seventy-three days of pretrial confinement credit. The United States Army Court of Criminal Appeals set aside and dismissed a charge affected by an erroneous staff judge advocate’s post-trial recommendation but affirmed the remaining findings and the sentence. United States v. Edmond, No. ARMY 9900904, slip op. at 3 (A.Ct.Crim.App. Sept. 17, 2002). This court initially granted Edmond’s petition for review on the issue of witness interference and concluded that further inquiry was necessary. United States v. Edmond, 58 M.J. 237 (C.A.A.F.2003). We set aside the decision of the Army court and directed the lower court to obtain affidavits and, if necessary, to conduct additional factfinding pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Id. After reviewing the affidavits submitted by the trial participants, the lower court ordered a Du-Bay hearing. United States v. Edmond, No. ARMY 9900904, slip op. at 3 (A. Ct.Crim.App. June 2, 2005). Following the DuBay hearing, the military judge issued “Essential Findings and Conclusions of Law” which found no prosecutorial misconduct. On appeal to the Army court, Edmond argued that the DuBay judge erred in finding no prosecutorial misconduct and also asked the court to conclude that his defense attorney had provided ineffective assistance of counsel. Id. The Army court agreed with the DuBay judge that there was “no evidence of prosecutorial misconduct” and further concluded that Edmond’s defense counsel was not ineffective. Id. at 4-6. The lower court once again affirmed the findings and sentence. Id. at 6. In a due process analysis of prosecutorial misconduct this court looks at the fairness of the trial and not the culpability of the prosecutor. See Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Even where we find misconduct on the part of the prosecutor, this court will go on to look at the “overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.” United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F.2003). The first granted issue addresses whether the lower court erred in concluding that there was no prosecutorial misconduct in this case. When reviewing claims of ineffective assistance of counsel, we are guided by the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, an appellant must show that counsel’s performance fell below an objective standard of reasonableness—that counsel was not functioning as counsel within the meaning of the Sixth Amendment. The second prong of an appellant’s burden requires a showing of prejudice flowing from counsel’s deficient performance. The appellant must demonstrate such prejudice as to indicate a denial of a fair trial or a trial whose result is unreliable. United States v. Davis, 60 M.J. 469, 473 (C.A.A.F.2005) (citations omitted). The second granted issue addresses whether trial defense counsel was ineffective when he failed to inquire into a defense witness’s decision not to testify at trial. BACKGROUND Edmond was convicted of numerous charges, including conspiring to commit larceny of two cellular telephones and the larceny of two cellular telephones. These two charges are central to this appeal. Edmond’s alleged coconspirator was Derrick McQueen, a friend with whom he worked in the supply shop. Prior to Edmond’s trial, Captain Jason Libby, Edmond’s trial defense counsel, spoke with McQueen about testifying on behalf of Edmond. McQueen told Libby that he did not believe his testimony could help Edmond and that he did not want to testify. Libby nonetheless subpoenaed McQueen. When McQueen arrived at the courtroom on the day of Appellant’s trial he met not' with Libby but with Major Jeffery Bovar-nick, the trial counsel. McQueen testified that he did not specifically remember the conversation that he had with Bovarnick, but he remembered being told that “if you perjure yourself or if new information comes out, new charges can be brought against you.” He said that he did not feel threatened by Bovarnick, but he felt if he testified his administrative discharge could be revoked and he “could ... be charged again.” McQueen said that he had planned to testify at the court-martial, but Bovarnick told him he could either testify or not testify, so he chose not to because he “didn’t want to be there anyway.” After McQueen told Bovar-nick he was going to leave, Bovarnick told McQueen that he would “inform who I need to inform that you don’t want to testify.” Bovarnick left the room, and when he returned told McQueen he was “free to go.” McQueen then left the courthouse. McQueen stated that had he testified at Edmond’s trial, he “planned on telling the truth,” and he did not recall having refused to testify because he did not want to incriminate himself. When asked what he would have said if he had testified, McQueen said that he and Edmond were tasked with ob-taming cell phones for the battalion and that he believed they were authorized to obtain them. He stated that at the time they obtained the phones they intended to return the cell phones to the unit for their authorized use. He also testified that there was no agreement between the two of them to keep the cell phones before they returned to the unit, but after they were told the unit no longer wanted the cell phones they decided to keep the phones for their own personal use. He could not recall any conversation between the two of them during which they agreed to misuse the telephones they had obtained. Bovarnick testified that prior to the trial he met with McQueen and that during the meeting he called Captain Karen Beyea, a Special Assistant United States Attorney, into the room. He stated that during that meeting he asked McQueen what his testimony would be and McQueen told him he would testify that he and Edmond were authorized by the command to obtain the phones. Based on the expected testimony of two Government witnesses who would testify that McQueen and Edmond were not authorized to obtain or use the phones, Bovarnick concluded that McQueen was lying and would commit perjury if he testified. As McQueen was a civilian, Bovarnick asked Beyea to “let him [McQueen] know what the potential repercussions would be for committing perjury.” Bovarnick testified that he did not inquire any further into McQueen’s expected testimony but based on what McQueen told him, he did not believe that the testimony McQueen would give would have been exculpatory because “that is not what happened by all the facts that are present in the case____ It wouldn’t have been because that is just not what happened.” He did agree, however, that if McQueen testified that there was no conspiracy between McQueen and Edmond before they obtained the phones to acquire them for personal use, then that would be exculpatory testimony. In regard to McQueen’s decision not to testify, Bovarnick stated that following their conversation, McQueen apparently decided to “change his mind and not testify.” He stated that the stipulation of fact was entered into because the defense wanted to call McQueen to the stand, but was informed by someone that McQueen would invoke his Fifth Amendment privilege. Bovarnick testified that he did not know who told trial defense counsel that McQueen would invoke his rights, but that McQueen “told somebody.” Edmond’s trial defense counsel, Libby, testified that he could not remember what exculpatory information McQueen could have provided to the members, but he stated that at the time of Edmond’s court-martial he believed McQueen’s testimony would be favorable to Edmond. He also testified that on the day of trial he did not speak to McQueen, but was informed by trial counsel that McQueen did not want to testify in the case. He admitted he did not speak to McQueen and receive this information himself, though he “probably should have.” He also stated that he should have done more to preserve the record on the question of whether and why McQueen was invoking his Fifth Amendment rights in refusing to testify. In lieu of having Beyea testify the parties agreed the DuBay judge could consider her affidavit. In her affidavit Beyea explained that Bovarnick told her that based on McQueen’s attitude and demeanor he did not believe McQueen was going to tell the truth and she agreed with that assessment. She stated that based on their conclusion that McQueen was untrustworthy, they determined they had an obligation to inform McQueen “of the consequences of perjury based on our information and belief that McQueen was not going to be truthful.” She said she then informed McQueen of the consequences of perjury and explained that if he perjured himself “the government would seek justice” even though he was a civilian. She also stated she explained to McQueen that they were not pressuring him not to testify, but that “as officers of the court, [they] merely wanted to make sure that he was informed before he testified.” At the conclusion of the defense case, the defense entered a stipulation of fact into evidence that stated that if he were called to testify, McQueen would invoke his Fifth Amendment right against self-incrimination. The military judge questioned Edmond regarding his wish to enter into the stipulation of fact, asking whether his trial defense counsel had explained the stipulation to him, whether he knew that he had “an absolute right to refuse” to enter into the stipulation, and whether he believed it was in his best interest to enter into the stipulation of fact. Edmond responded that he did, and the stipulation of fact was entered into evidence. DISCUSSION The two granted issues in this case— whether there was prosecutorial misconduct in interfering with and releasing a subpoenaed defense witness and whether Edmond’s defense attorney was ineffective by failing to talk with a potentially exculpatory defense witness before agreeing to release the witness—are closely intertwined. I. PROSECUTORIAL MISCONDUCT We turn first to the question of whether the trial counsel engaged in misconduct in his discussions with McQueen on the day of Edmond’s trial. In evaluating issues of prosecutorial misconduct we review the military judge’s findings of fact to determine whether they are clearly erroneous. United States v. Argo, 46 M.J. 454, 457 (C.A.A.F.1997). “The questions whether the facts found by the military judge constitute prosecutorial misconduct and whether such misconduct was prejudicial error are questions of law that we review de novo.” Id. (citing United States v. Meek, 44 M.J. 1, 5-6 (C.A.A.F.1996); United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.1996)). “Prosecutorial misconduct is ‘action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon.’ ” Id. (quoting Meek, 44 M.J. at 5). As the DuBay judge noted in his conclusions of law, this court has held that “[sjeveral legal norms are violated when a trial counsel attempts to or unlawfully dissuades a defense witness from testifying at a court-martial.” Meek, 44 M.J. at 5; see also Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (holding that the defendant’s due process rights were violated when the trial judge singled out the only defense witness and indicated to that witness that he expected the witness to he and would personally ensure that the witness was prosecuted for perjury and thereby “effectively drove that witness off the stand”); United States v. Vavages, 151 F.3d 1185, 1189 (9th Cir.1998) (concluding that although perjury warnings are not improper per se, it may be prosecutorial misconduct if “the prosecutor or trial judge employs coercive or intimidating language or tactics that substantially interfere with a defense witness’ decision whether to testify”); United States v. Heller, 830 F.2d 150, 153-54 (11th Cir.1987) (concluding that when a government agent intentionally threatened and attempted to scare a defense witness concerning his testimony on behalf of the defendant, the defendant had “been deprived of an important defense witness by substantial interference on the part of the government” and was therefore entitled to a new trial); United States v. Hammond, 598 F.2d 1008, 1012-13 (5th Cir.1979) (noting that “ ‘substantial government interference with a defense witness’ free and unhampered choice to testify violates due process’ rights of the defendant” and concluding that a government statement to a witness that he would have “nothing but trouble” if he testified on behalf of defense requires reversal (quoting United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.1977))); United States v. Morrison, 535 F.2d 223, 229 (3d Cir.1976) (“[Pjrosecutorial misconduct caused the defendant’s principal witness to withhold out of fear of self-incrimination testimony which would otherwise allegedly have been available to the defendant.”). The DuBay judge found no unlawful attempts by Bovarnick and Beyea to dissuade McQueen from testifying, but rather found that the purpose of the meeting among Bo-varnick, Beyea and McQueen was to inform McQueen that he could be prosecuted as a civilian if he perjured himself. He also found that this warning was given “to protect Mr. McQueen and not for the purpose of influencing him against testifying” and that McQueen was not threatened or intimidated in any way. Finally, he found that McQueen did not testify because he did not want to be involved in the prosecution of his friend and that regardless, “whatever Mr. McQueen would have said, he could not have helped this accused.” Initially, it is questionable whether it was proper for Bovarnick to warn McQueen about the consequences of perjury. McQueen told Bovarnick he would have testified that he believed he and Edmond had authorization to obtain the phones in question. Bovarnick testified that this was contrary to the testimony of two Government witnesses who would testify that McQueen and Edmond did not have authority to obtain the phones, but only the authority to look into getting the phones. Bovarnick stated that because McQueen’s potential testimony contradicted that of his witnesses, he believed it was a lie. He told McQueen he knew McQueen was lying and if McQueen testified as he proposed then he would be prosecuted for perjury. The United States Court of Appeals for the Ninth Circuit has stated: That [the witnessj’s testimony would have contradicted the testimony of the government’s own witnesses does not form a sufficient basis for the prosecutor’s warning. Rather, unusually strong admonitions against perjury are typically justified only where the prosecutor has a more substantial basis in the record for believing the witness might lie—for instance, a direct conflict between the witness’ proposed testimony and her own prior testimony. Vavages, 151 F.3d at 1190. Bovarnick has provided no basis for concluding that McQueen’s testimony would be a lie other than McQueen’s “demeanor” and the fact that his testimony contradicted the testimony of Government witnesses. Bovarnick did not testify that he relied on any evidence that McQueen had previously stated he did not actually believe he and Edmond were authorized to obtain the phones when they did so. In fact, McQueen’s potential testimony was consistent with Edmond’s version of events surrounding the acquisition of the cell phones in his sworn statements made to investigators. Even if the proposed testimony of the Government’s witnesses was truthful—that McQueen did not actually have authority to obtain the phones—that would not automatically lead to the conclusion that McQueen was lying when he said that he believed he had the authorization. It is not uncommon in litigation, or in life in general, for individuals to have different perceptions of the same event. The fact that two witnesses have conflicting views of an event does not mean, without more, that either witness is intentionally testifying falsely. Here the difference in the testimony was that the Government witnesses would testify that Edmond and McQueen were only authorized to look into obtaining the cell phones while McQueen would testify that he thought they had authority to acquire the cell phones. In addition, Bovarnick did more than simply give a perjury warning to McQueen. He told him, “I know that that is a he____ I am going to make sure that the S.A.U.S.A. [Special Assistant United States Attorney] sits in and listens to you testify to that and then basically admonish you—not admonish you, but let him know what the potential repercussions would be for committing perjury.” Following that, Beyea, the Special Assistant United States Attorney, informed McQueen “of the consequences of perjury based upon our information and belief that McQueen was not going to be truthful.” She explained if he perjured himself “the government would seek justice” even though he was a civilian. The United States Court of Appeals for the Ninth Circuit has held that a prosecutor “substantially interfered” with a witness’s decision to testify where he “combined a standard admonition against perjury—that [the defense witness] could be prosecuted for perjury in the event she lied on the stand—with an unambiguous statement of his belief that [the witness] would be lying if she testified in support of [the defendant’s] alibi.” Vavages, 151 F.3d at 1190. The court concluded that “the additional statement served as no more than a thinly veiled attempt to coerce a witness off the stand.” Id. Bovarnick and Beyea speculated that McQueen’s proposed testimony was a lie and combined it with a warning that the Government would prosecute McQueen if he testified. This combination substantially interfered with McQueen’s decision to testify by causing him to believe that if he went into the courtroom and testified as he intended he would be “charged again,” despite the fact that there were no grounds established at the DuBay hearing to believe that he intended to do anything other than testify truthfully. We conclude, therefore, that the Du-Bay judge’s finding that the purpose of the warning was to protect McQueen and not to influence him not to testify was clearly erroneous. We conclude that the trial counsel’s actions substantially interfered with McQueen’s decision whether to testify and had the effect of unlawfully dissuading a subpoenaed defense witness from testifying at Edmond’s court-martial. See Meek, 44 M.J. at 5 (“Several legal norms are violated when a trial counsel attempts to or unlawfully dissuades a defense witness from testifying at a court-martial.”). We next turn to the DuBay judge’s finding that “McQueen did not testify because he didn’t want to testify. Although I can’t identify who gave Mr. McQueen the option to testify or not testify, no one forced his decision one way or another.” This finding is also inconsistent with the evidence before us. Beyea’s affidavit clearly states that she and Bovarnick told McQueen it was his “his decision about testifying at Edmond’s court-martial.” McQueen testified Bovarnick told him he could testify or not testify and he chose not to because he “didn’t want to be there anyway.” The finding that it was impossible to identify who gave McQueen the option to testify or not testify is clearly erroneous as the record reflects that Bovarnick and Beyea told him he had that option. This conversation and the subsequent release of McQueen as a witness are particularly problematic as McQueen was under a subpoena requested by the defense and could not choose to leave without testifying unless the defense agreed to release him and the subpoena was quashed by the military judge. Under Rule for Courts-Martial (R.C.M.) 703(b)(1), a party “is entitled to the production of any witness whose testimony on a matter in issue on the merits ... would be relevant and necessary.” The trial counsel is obligated to arrange for the presence of any witness requested by the defense “unless the trial counsel contends that the witness’ production is not required under this rule.” R.C.M. 703(c)(2)(D). After subpoenaing McQueen on behalf of the defense, Bovarnick was not authorized to tell McQueen that he could choose to either testify or not testify. While the record concerning the advisement and invocation of McQueen’s Fifth Amendment rights is unclear, one thing is certain—nothing in the record reflects that any attorney involved in this proceeding advised McQueen of his Fifth Amendment rights and McQueen does not remember either being advised of those rights or invoking them. Bovarnick testified he did not advise McQueen of his rights nor did he know who McQueen told that he was invoking his Fifth Amendment rights, but that “he told somebody.” McQueen, however, only met that day with Bovarnick and Beyea. Defense counsel did not meet with McQueen at all that day and did not remember how he found out that McQueen was going to invoke his rights. His only recollection regarding McQueen’s decision not to testify was that Bovarnick informed him that McQueen chose not to testify in the case, but he did not inquire further into McQueen’s reasons for this decision. In summary, Bovarniek’s speculation that McQueen would perjure himself does not provide a basis for telling McQueen he did not have to testify. There is no evidence that McQueen had been advised of or was invoking his Fifth Amendment rights when Bovarnick told McQueen he was free to leave. Bovarnick’s release of McQueen from the subpoena added to the substantial interference with McQueen’s decision not to testify on behalf of the defense. Although we conclude that the prosecution’s actions substantially interfered with McQueen’s decision whether or not to testify, that does not end the prosecutorial misconduct analysis. Even if we were to find misconduct on the part of the prosecutor, this court will go on to look at the “overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.” Thompkins, 58 M.J. at 47. “In assessing prejudice, we look at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial.” United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F.2005). Our prosecutorial misconduct analysis is closely intertwined with the question of whether Edmond’s defense attorney was ineffective by failing to talk with a potentially exculpatory defense witness before agreeing to release the witness. We therefore need to assess the impact of trial counsel’s actions on the integrity and fairness of Edmond’s trial in light of the defense counsel’s inaction and acquiescence in entering into the stipulation of fact that McQueen would invoke his Fifth Amendment rights if called to testify without personally discussing that decision with McQueen. II. INEFFECTIVE ASSISTANCE OF COUNSEL

1477836-9237

SPROUSE, Circuit Judge: Wilbur Folston, Jr., appeals the district court’s denial of his petition for habeas corpus relief under 28 U.S.C. § 2254. He contends the district court erred in not conducting an evidentiary hearing on his claim that the grand jury was unconstitutionally constituted, and in not finding constitutional error in the admission of certain evidence in the state court trial. We affirm. A Cleveland County, North Carolina, jury convicted Folston of first degree murder and armed robbery in connection with the 1975 shooting death of a service station attendant. Folston originally was sentenced to death, but the North Carolina Supreme Court subsequently vacated his sentence and substituted a sentence of life imprisonment. The evidence at trial was that Folston, Robert Hardy and Kevin Green were trav- ' eling together by car in the early morning of July 31, 1975. Hardy, the driver, pulled into a service station near Morganton, North Carolina, about 4:30 a.m. The attendant was forced by Folston and Green to empty the cash register at gunpoint, and then was shot to death. Folston, Hardy and Green were apprehended later the same day, following a high speed chase. Folston and Hardy entered pleas of not guilty; Green was permitted to plead guilty to second degree murder in exchange for his agreement to testify against his codefendants. Prior to trial Folston moved to quash his indictment alleging, among other things, that women had been systematically underrepresented on the grand jury which indicted him. This motion was denied; Folston also was unsuccessful in his efforts to have his trial severed from Hardy’s. At trial, Green testified regarding his version of events at the service station, and also testified, over defense objections, to conversations which occurred while all three codefendants were held in the same cell in late November, 1975. Following his conviction and affirmance by the North Carolina Supreme Court, Folston brought this habeas corpus action, contending that the state trial judge erred in refusing to quash the indictment and sever the trials, and in admitting Green’s testimony regarding the jailhouse conversations. The district court judge rejected all of Folston’s contentions and dismissed his petition without holding an evidentiary hearing on his grand jury claim, finding that he was required to accept the result of the state court determination under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1968). We agree. In Townsend the Court held that a district court evidentiary hearing on a state prisoner’s federal habeas corpus claim is not necessary, provided the prisoner received a full and fair evidentiary hearing in a state court, either at the time of trial or in a collateral proceeding. The Court set forth the specific circumstances under which an evidentiary hearing becomes mandatory: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Id. at 313, 83 S.Ct. at 757. Folston contends that an evidentiary hearing was required in his case because (2) the state factual determination was not fairly supported by the record and (5) material facts were not adequately developed at the state court hearing. The evidence presented by Folston at the state hearing on his motion to quash the indictment was that only four out of eighteen Burke County grand jury members were female in each of the years 1974,1975 and 1976. In 1973, there were six female grand jury members. The state introduced evidence that the grand jury selection procedures in Burke County were in accordance with the requirements of state law, and that the grand and petit juries were selected from the same pool. The master list was composed of every sixth name from the voting list, and every eighth name from the tax list, minus those statutorily excluded from service. Based on this evidence, the state trial court denied Folston’s motion to quash, ruling that “there is no evidence before the Court to indicate that the Jury Commission in either County has intentionally, systematically or arbitrarily discriminated against females ... when it acted in connection with securing the jury list or following the applicable statutes in connection with the makeup of the jury list in either county.” The North Carolina Supreme Court affirmed, ruling that a prima facie ease of discrimination against women was not made out because the defendants failed to introduce evidence of the percentage of women in the total county population. State v. Hardy, 293 N.C. 105,114, 235 S.E.2d 828, 834 (1977). Folston points to this ruling as the basis for his second Townsend contention — that material facts were not adequately developed at the state court hearing. The state court’s finding of no discrimination is fully supported by the record. This would remain the case even if Folston had introduced evidence as to the percentage of women in the county; thus, the fact is not “crucial to the adequate consideration of the constitutional claim,” as is required under the Townsend exception for material facts. The requirements for establishing a prima facie case of systematic discrimination in the grand jury context are set forth in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977): The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or applied. ... Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time.... Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. ... Once the defendant has shown substantial underrepresentation of his group, he has made a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut the case. Assuming, arguendo, that Folston made a prima facie case, the State’s evidence rebutted any inference of intentional discrimination. Unlike the “key-man” system at issue in Castaneda, the North Carolina system was predicated on a random selection process; it was completely impartial. The State presented evidence of how the jury commissions operated and of how the potential jurors were selected, thereby dispelling any inference of intentional discrimination. “Where the fundamental liberties of the person are claimed to have been infringed, we carefully scrutinize the state-court record.” Townsend, 372 U.S. at 316, 83 S.Ct. at 758. Here, scrutiny of the record reveals that the State’s factual determinations are fairly supported. Equally without merit are Folston’s contentions regarding the admissibility of statements by Green. At trial, Green testified over defense objection that while the three men occupied the same cell “Hardy asked Mr. Folston why did he shoot the man” and that “Mr. Folston gave no reply.” I overheard a conversation between Folston and Hardy with reference to what happened on the night of or the early morning hours of the 31st day of July, 1975. The conversation was more or less about the money. Mr. Hardy asked Mr. Folston why did he shoot the man and Mr. Folston gave no reply. Mr. Folston did not say anything when Mr. Hardy asked him why he shot the man. Green also testified that during this same jail cell conversation, Folston stated that Hardy had told him he had to kill the victim. Q. Did you overhear any conversation between these two men about any victim of any armed robbery? OBJECTION as to both defendants. COURT: OVERRULED. A. Mr. Folston said Mr. Hardy told him MR. SITTON: OBJECTION. Q. Mr. Folston said what? A. Mr. Hardy told him you had to kill the victim or he would testify. MR. SITTON: OBJECTION, your Honor, move to strike. COURT: OVERRULED. Folston now contends that admission of the first statement violated both his right of confrontation under the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and the due process clause of the fourteenth amendment by denying him his right to remain silent. Bruton limits the use at a joint trial of a codefendant’s admission which also implicates the nondeclarant defendant. Green, however, testified to an admission by Folston himself. Where the incriminating admissions of the nontestifying codefendant are admissible against that defendant under the rules of evidence, Bruton is inapplicable. Id. 391 U.S. at 128 n. 3, 88 S.Ct. at 1623 n. 3. Folston’s silence under the circumstances clearly is an implied admission which renders the statement admissible against him.

9326588-11925

MEMORANDUM OPINION AND ORDER JOHNSON, District Judge. THIS MATTER comes before the Court upon Plaintiffs’ Motion in Limine Regarding Application of Tribal law, filed August 12, 2002 (Doc. 53). This action is a medical malpractice claim in which Plaintiffs are suing the United States for subrogation and indemnification for a sum paid out in settlement. Having considered the parties’ briefs and the applicable law, I find that Plaintiffs’ motion is not well-taken and will be denied. Ms. Annie Morris was struck down by a Federal Express truck in a shopping center parking lot and died as a result. After the accident, Ms. Morris was taken to the Crownpoint Health Care Facility (“CHCF”) where she was treated. Plaintiffs contend that employees at CHCF, which is operated by the Indian Health Service (“IHS”), should have been able to stabilize Ms. Morris to permit her transfer to another facility capable of caring for her injuries. Parties do not dispute that CHCF is located on Indian territory. Whether Tribal Law Applies Plaintiffs seek to have the Court apply Navajo Tribal law to its claim brought under the Federal Tort Claims Act (“FTCA”), instead of New Mexico state law, based on the wording in the statute: ... [T]he district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1) (emphasis added). In support of their position, Plaintiffs rely on their interpretation of the statutory language, and one published District of New Mexico opinion, Cheromiah v. U.S., which held that Acomo trial law applied under § 1346(b) as the “law of the place” where the act of omission occurred. 55 F.Supp.2d 1295 (D.N.M.1999). Plaintiff points out that Cheromiah was followed by the Fourth Circuit in Williams v. U.S., 1999 WL 33320440 (W.D.N.C.1999). However, although the Williams court found that Cherokee law governed the FTCA claim, on appeal it was noted that because there was no tribal law applicable to the provision of emergency medical treatment, any tribal resolution would look to “applicable federal and North Carolina law.” The court, therefore, did not need to ultimately determine whether tribal law, and not state law, “constituted the applicable law of the place.” Williams v. U.S., 242 F.3d 169, 175, n. 2 (4th Cir.2001) (‘Williams II”). At the same time, Williams II acknowledged that another District of New Mexico case had reached a conclusion opposite to the one reached in Cheromiah, citing Louis v. U.S., 54 F.Supp.2d 1207, 1210 (D.N.M.1999) (under New Mexico choice of law principles, New Mexico law rather than Indian law applied to medical malpractice claim brought by-Indian against the United States under the Federal Torts Claims Act where alleged acts of negligence occurred at IHS facility on Acoma Pueblo). See also Bryant v. U.S., 147 F.Supp.2d 953 (D.Ariz., 2000) (finding reasoning in Cheromiah unpersuasive, and holding that the substantive law of New Mexico applied where acts causing injury occurred on tribal land located within the State of New Mexico). Plaintiffs ignore the overwhelming load of case law that has interpreted the term “law of the place” to refer to the substantive law of the state in which the tort occurred. See, e.g., Molzof v. United States, 502 U.S. 301, 303-07, 112 S.Ct. 711, 714-15, 116 L.Ed.2d 731, (1992) (while liability issues are determined by state law, meaning of term employed in FTCA “is by definition a federal question”) (emphasis supplied), appealed after remand on other grds., 6 F.3d 461 (7th Cir., Sept., 1993); Franklin v. U.S., 992 F.2d 1492, 1495 (10th Cir.1993) (questions of liability under the FTCA are resolved in accordance with the' law of the state where the alleged tortious activity took place); Flynn v. United States, 902 F.2d 1524, 1527 (10th Cir.1990) (FTCA makes the United States liable on tort claims under circumstances in which a private individual would be liable under state law) (emphasis added); Brown v. U.S., 653 F.2d 196, 200 (5th Cir.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982) (“law of the place” refers exclusively to state law); Kruchten v. U.S., 914 F.2d 1106 (8th Cir.1990) (law of state in which alleged tort occurred governs all substantive issues in FTCA case); Ochran v. U.S., 273 F.3d 1315 (11th Cir.2001) (distinguishing between application of state law or federal law); Delta Savings Bank et al. v. U.S., 265 F.3d 1017, 1024 (9th Cir.2001) (noting that Supreme Court has consistently held that the FTCA’s reference to the .“law of the place” means law of the State for the source of substantive liability under the FTCA) (citing FDIC v. Meyer, 510 U.S. 471, 475-79, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994)); accord, Fresquez v. U.S., 788 F.Supp. 469 (D.Colo.1992); O’Neal v. Department of Army, 852 F.Supp. 327 (M.D.Pa.1994); Rose v. U.S., 929 F.Supp. 305 (N.D.Ill.1996);Walton v. U.S., 770 F.Supp. 731 (D.Mass.1991). Further, even if tribal jurisdiction concurrently extends to the claim at hand, the mere existence of jurisdiction is not determinative in deciding what “law of the place” applies. Rather, the inquiry ends where it is determined the negligence occurred. E.g., Hess v. U.S., 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960) (in claim over wrongful act causing death where controversy was within reach .of admiralty jurisdiction, Oregon state law and not maritime law, would apply in claim brought under FTCA, even though Oregon would be required to apply admiralty law in a tort action between private parties); Sey-ler v. U.S., 832 F.2d 120 (9th Cir.1987) (applying Idaho recreational use statute in FTCA suit involving motorcycle accident that occurred on road maintained by the Bureau of Indian Affairs (BIA)); Bryant v. U.S. 565 F.2d 650, 652-53 (10th Cir.1977) (issue not discussed, but applying NM law to FTCA action alleging negligence at BIA-run school on Indian reservation); Brock v. U.S., 601 F.2d 976 (9th Cir.1979) (phrase “law of place where act or omission occurred” means law of state in which negligence occurred in case of act which occurs in area in which two states exercise concurrent jurisdiction). Plaintiffs analysis of the issue under Montana v. U.S., 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), which addresses a tribe’s civil authority over non-Indians misses the big picture. It works only if one assumes the United States Government is a private person. Given the strict construction afforded sovereign immunity provisions, Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981), this Court declines to accept such an assumption. Therefore, Plaintiffs motion regarding the application of tribal law to this case will be denied. NMMMA Damages Cap Plaintiff argues in the alternative that if New Mexico law applies, then the liability cap set out in the New Mexico Medical Malpractice Act, N.M.S.A. § 41-5-6 (“Medical Malpractice Act”) is unconstitutional. The Act limits certain types of monetary relief for medical malpractice claims. Plaintiff argues that the cap violates the New Mexico Constitution. In support of its position, Defendant relies on Trujillo v. City of Albuquerque et al., 125 N.M. 721, 965 P.2d 305 (1998) (Trujillo II), which I find to be instructive as well as dispositive in the guidance it provides on the issue. Trujillo II held that the rational basis level of scrutiny should be applied to an equal protection challenge to the damages cap in the New Mexico Tort Claims Act (“TCA”). The critical part of this holding is that the New Mexico Supreme Court further held that the rational basis would be the “constitutional test applied to cap challenges of this nature from this point forward.” 125 N.M. at 723, 965 P.2d 305. Plaintiffs constitutional challenge to the Medical Malpractice Act comes under this category of challenges, both in the sense of the type of challenge and the nature of the cap set forth in the Medical Malpractice Act. Social and economic legislation is generally considered presumptively valid. Trujillo II, 125 N.M. at 726, 965 P.2d 305 (citation omitted). Under the rational basis test, a plaintiff is required to show that the statute’s classification is not rationally related to the legislative goal. The cap in the Medical Malpractice Act does not include “punitive damages and medical care and related benefits.” § 41-5-6(A) & (B). Victims of medical malpractice may still recover for acts of negligence egregious enough to warrant punitive damages or entail costly medical care. As noted in Cummings v. X-Ray Assoc. of N.M., P.C., 121 N.M. 821, 918 P.2d 1321 (1996), the Medical Malpractice Act achieves “the legislative purposes of assuring that health providers are adequately insured so that patients may be reasonably compensated for their malpractice injuries.” 121 N.M. at 830, 918 P.2d 1321. The analysis in a recent New Mexico Court of Appeals case, Godwin et al. v. Memorial Med’l Center, echoed a similar legislative rationale m finding that the damages cap in the Tort Claims Act applied to the Emergency Medical Treatment and Active Labor Act (“EMTALA”): a “concern about recoveries against healthcare providers.” 130 N.M. 434, 443, 25 P.3d 273 (Ct.App.), cert. granted, 130 N.M. 459, 26 P.3d 103 (2001). Plaintiff completely overlooks Trujillo II and offers no reason why the Court should not follow its roadmap. Instead, Plaintiff offers an unpublished state district court order, Morrow v. Reddy, No. 99-23-CV, slip. op. (Eighth Jud. Dist. Ct. Union County, N.M.) which contains a finding that the damages cap in the Medical Malpractice Act was arbitrary and capricious, and violated the plaintiffs federal and state constitutional guaranties to equal protection and due process. Pltjfs Ex. D. This Court is not bound by Morrow, nor is it persuaded by its reasoning, particularly given the outcomes in Godwin and Cummings. Plaintiff also offers Schlieter v. Carlos, 108 N.M. 507, 510, 775 P.2d 709 (1989) (per curiam), which is neutral to Plaintiffs position. In that case, the New Mexico Supreme Court simply declined to accept certification by the federal district court of an equal protection challenge to the damage cap in the Medical Malpractice Act. In light of Trujillo II, which has already determined the appropriate standard of review in challenges to caps on damages available in statutes similar to the Tort Claims Act, Schlieter offers nothing that would weigh this issue in Plaintiffs favor. In sum, I find that the statute is not arbitrary and capricious in limiting deserving plaintiffs from deserved relief, and that it is rationally related to the legislative goal of ensuring a source of recovery for victims of medical malpractice and curbing runaway costs of healthcare'. THEREFORE, IT IS ORDERED that Plaintiffs Motion in Limine Regarding Application of Tribal law (Doc. 53) is hereby DENIED. . The facility is located within Navajo Nation reservation and held by the United States in trust for the Navajo Nation. See Exhibits to Pltff's Mot. . The claim in the Williams case was based on a federal statutory duty, under the Emergency Medical Treatment and Active labor Act (EMTALA), for which the court found sovereign immunity under the FTCA was not waived. . Trujillo II reversed Trujillo v. City of Albuquerque, 110 N.M. 621, 798 P.2d 571 (1990) which had applied an intermediate level of scrutiny to the damages cap in the New Mexico Tort Claims Act.

3678170-7049

ROBERT D. MORGAN, District Judge. Upon plaintiff’s petition for review, filed under the provisions of Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), the court below entered summary judgment affirming the decision of the Secretary denying plaintiff’s applications to establish a period of disability and for disability insurance benefits. Plaintiff appeals from that judgment. There is no factual dispute. Plaintiff suffered poliomyelitis as a child, as a re- suit of which she has since suffered from partial paralysis. She has no use of her left arm. Her left leg is seriously affected by paralysis. She completed high school. Thereafter, with the exception of certain periods of unemployment because of injury and for other reasons, she was employed in various sedentary, or semi-sedentary, occupations during a period of some twenty years and until May 28, 1964. Her employment was terminated at that time because of difficulties with her left leg. Shortly thereafter she endured a long period of hospitalization for therapeutic procedures, including fusion of her left ankle. She filed an application for the establishment of a period of disability and disability benefits in December, 1964. In September, 1965, the Secretary determined that she was entitled to a period of disability, commencing in May, 1964, and to disability benefits. A factor deemed significant by the Secretary at that time was the fact that plaintiff, because of her physical condition, could not use public transportation in going to and from work. On April 25, 1966, plaintiff obtained employment as a receptionist in the Personnel Department at the Lutheran Deaconess Hospital in Chicago. She did all the work that her predecessor in employment had done, except typing, and except for the fact that she worked a three-day week. After three months at Lutheran, she terminated her employment because the work and difficulties of travel to work proved too strenuous for her. Thereafter, in October, 1966, plaintiff obtained employment at Norwegian American Hospital in Chicago. She was still engaged in that employment at the time of the hearing before the Hearing Examiner in February, 1968. Her work entailed the answering of phones, taking messages for doctors, handling mail, selling and distributing newspapers and issuing visitors passes. Much of her work is done at her desk, though the job does require considerable walking on the main floor of the hospital. At the time of that hearing, she was working an average of thirty-six hours per week. Her take-home pay was approximately $79.00 bi-weekly. Though her supervisor at Norwegian stated that plaintiff was totally disabled, she also stated that no special conditions are arranged for plaintiff, that she was hired on her merit because she could do the work required, and that her employment would be terminated if she were not able to do the work which her job requires. In June, 1967, the Secretary terminated plaintiff’s period of disability and disability benefits upon the ground that she was working substantially full time for wages and that she was therefore able to engage in substantial gainful activity. Following a hearing before a Hearing Examiner, held at plaintiff’s request, the Examiner found that plaintiff was under a disability from May, 1964, until April, 1967, and that, under the applicable statutes, her entitlement to disability insurance benefits ended in June, 1967. No new medical evidence was introduced at that hearing. The Hearing Examiner found that there had been no substantial change in plaintiff’s physical condition since the date of the prior disability determination. He also found that the fact of her employment in a position in the competitive labor market deomonstrated her ability to engage in substantial gainful activity. The judgment below must be affirmed. It is apparent from the administrative record that the Secretary’s finding that plaintiff is able to engage in substantial gainful activity is supported by substantial evidence. That determination exhausts the limits of our power of review. 42 U.S.C. § 405(g); Workman v. Celebrezze, 7 Cir., 360 F.2d 877, 878; Jones v. Celebrezze, 7 Cir., 331 F.2d 226, 227; Degner v. Celebrezze, 7 Cir., 317 F.2d 819, 820-821. The thrust of plaintiff’s argument for the opposite result rests upon the assertion that the evidence as to the ¿mount of plaintiff’s earnings, alone, supports the Secretary’s determination. She asserts that the original medical evidence, including evidence of her pain, and the finding that her physical condition has not changed substantially since 1964, refutes the presumption of her ability to engage in substantial gainful activity. Principal reliance to support that argument is based upon the decisions in Leftwich v. Gardner, 4 Cir., 377 F.2d 287, Hanes v. Celebrezze, 4 Cir., 337 F.2d 209, and Yarborough v. Gardner, E.D. N.C., 283 F.Supp. 814. Since disability claims invoke a fact-finding process upon the basis of the evidence presented in support of the particular claim, it is always questionable whether the invasion by a court of the bog of comparative case analysis serves any useful purpose. Extended analysis of those cases is not, therefore, undertaken. It is sufficient to observe that Leftwich involved politically-created employment activity in a job which the claimant was not physically capable of performing. 377 F.2d at 289. The critical issue in both Hanes, 337 F.2d at 215, and Yarborough, 283 F.Supp. at 820, 822, 823, was the absence of a finding by the Secretary that “substantial gainful activity” was involved. In each of the latter two cases it appeared that only a few hours per month were devoted to the activity from which compensation was derived. Of more pertinency to this case are statements by courts that proof of the fact of engagement in substantial gainful activity supports the denial of disability benefits, though the medical evidence, standing alone, would have led to the opposite conclusion. Marshall v. Gardner, S.D.W.Va., 298 F.Supp. 542, 545, aff’d per curiam, 4 Cir., 408 F.2d 883; Simmons v. Celebrezze, 4 Cir., 362 F.2d 753, 755. The Hearing Examiner noted in his findings that the medical evidence sustained a period of disability for plaintiff commencing in 1964, and that there was no medical evidence that her physical condition had thereafter substantially changed. He also noted that plaintiff had been working in a competitive labor market upon substantially a full-time basis, having gained and retained her employment by virtue of her ability to perform the work required in a satisfactory manner without assistance or special conditions created for her. She had a perfect work attendance record at Norwegian at the time of the hearing. In sum, those factors, together with the amount of her earnings in excess of $140 per month, are adequate to support the Secretary’s determination that she was no longer disabled within the meaning of the Act. 20 C.F.R. 404.-1532(b), (c), 404.1533, 404.1534.

4102566-18505

OPINION REINHARDT, Circuit Judge: The Back Pay Act waives the government’s sovereign immunity from liability for interest on back pay awarded to: [a]n employee of an agency who, on the basis of a timely appeal or an administrative determination ... is found by appropriate authority under applicable law ... to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the [employee’s] pay. 5 U.S.C. §§ 5596(b)(1), (b)(1)(A)®, (b)(2)(A). This case presents the question whether that explicit waiver of immunity applies to interest on an award of back pay against the federal government for terminating an employee in violation of the Age Discrimination in Employment Act (ADEA). We hold that it does. I. Chester Wrucke and James Calzia were terminated from their positions as scientists for the U.S. Geological Survey pursuant to a 1995 Reduction in Force. Wrucke and Calzia filed appeals with the Merit Systems Protection Board (MSPB), and after exhausting their administrative remedies filed a timely complaint in the District Court for the Northern District of California in 1998. The district court conducted a bench trial in July 2003. The district court found that Wrucke and Cal zia were terminated in violation of the ADEA. After a round of appellate litigation, the details of which are not relevant to the present appeal, the case was remanded to the district court, which entered judgment granting Wrucke and Calzia back pay, as well as pre- and post-judgment interest. On May 14, 2009, the government filed a Motion for Relief from Judgment under Fed.R.Civ.P. 60(b), asking the court to void the pre- and post-judgment interest under the theory that the ADEA did not expressly waive the federal government’s sovereign immunity from interest payments. Wrucke and Calzia, in turn, argued that the Back Pay Act’s waiver of federal sovereign immunity from interest for “unjustified or unwarranted personnel action[s]” by the federal government, 5 U.S.C. § 5596(b)(1), (b)(2)(A), provides for pre- and post-judgment interest on meritorious ADEA claims for wrongful termination. The district court sided with the government, holding that the “[Back Pay] Act does not expressly waive immunity for interest on back pay under the ADEA.” Calzia and Wrucke now appeal. II. In Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986), the Supreme Court held that under the “no-interest rule,” “[i]n the absence of express congressional consent to the award of interest separate from a general waiver of immunity to suit, the United States is immune from an interest award.” Id. at 314, 106 S.Ct. 2957. The ADEA’s waiver of federal sovereign immunity does not expressly waive the federal government’s immunity from awards of interest. See 29 U.S.C. § 633a. The Back Pay Act, however, does explicitly waive the government’s immunity from interest on back pay awarded for certain types of “unjustified or unwarranted personnel action[s].” 5 U.S.C. § 5596(b)(1), (b)(2)(A). We therefore must determine whether the Back Pay Act’s waiver of sovereign immunity from interest on back pay awards against the federal government extends to back pay awarded under the ADEA. We hold that it does. The Back Pay Act was passed in 1966 with the goal of “establishing] a single, general, and comprehensive pay adjustment authority to be applied after an erroneous or unwarranted personnel action is corrected.” H.R.Rep. No. 89-32, at 1 (1965). It makes back pay, “payable with interest,” available to: An employee of an agency who, on the basis of a timely appeal or an administrative determination ... is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee— 5 U.S.C. §§ 5596(b)(1), (b)(1)(A)(i), (b)(2)(A) (emphasis added). By its clear terms, this express waiver of sovereign immunity applies to actions, such as this one, in which an agency employee sues the federal government under substantive anti-discrimination statutes such as the ADEA, alleging that a wrongful personnel action resulted in “the withdrawal or reduction of ... pay, allowances, or differentials.” Cf. Brown v. Sec’y of the Army, 918 F.2d 214, 216 (D.C.Cir.1990) (“[W]e find in [the Back Pay Act’s] text no hint of an exclusion of, or exemption for, federal sector Title VII adjudications.”). In so finding, we join with three other circuits that have concluded that the Back Pay Act’s waiver of immunity from interest awards applies to a federal employee’s termination or reduction in pay in violation of substantive anti-discrimination statutes. See, e.g., Woolf v. Bowles, 57 F.3d 407, 410-11 (4th Cir.1995); Edwards v. Lujan, 40 F.3d 1152, 1154 (10th Cir.1994); Brown, 918 F.2d at 217-218. Our conclusion is compelled by the Back Pay Act’s text. The Act waives federal sovereign immunity for both back pay and interest, when: 1) the plaintiff is an employee of an agency; 2) the plaintiff makes a “timely appeal” or obtains “an administrative determination” regarding such a personnel action; 3) the plaintiff obtains a favorable ruling “under an applicable law, rule, regulation, or collective bargaining agreement” from an “appropriate authority” stating that the plaintiff has been “affected by an unjustified or unwarranted personnel action”; and 4) the unjustified personnel action resulted in a “withdrawal or reduction” of the plaintiffs pay, allowances, or differentials. See 5 U.S.C. § 5596(b)(1). Here, plaintiffs, who served as scientists for the U.S. Geological Survey, were clearly “employee[s] of an agency.” 5 U.S.C. § 5596(b)(1). Plaintiffs also filed a “timely appeal” as defined by the Office of Personnel Management regulations that interpret the Act. Those regulations state that the requirement for a timely appeal is met when: An employee or an employee’s personal representative initiates an appeal or grievance under an appeal or grievance system, including appeal or grievance procedures included in a collective bargaining agreement; a claim against the Government of the United States; a discrimination complaint; or an unfair labor practice charge and “an appropriate authority accepts that appeal, grievance, claim, complaint, or charge as timely filed.” 5 C.F.R. § 550.804(b)(l)-(2) (emphasis added). Here, plaintiffs initiated “an appeal or grievance under an appeal or grievance system” by filing an appeal of their termination with the Merit Systems Protection Board (MSPB), which recognized the appeal as timely filed. Moreover, plaintiffs’ suit in the district court, which was likewise recognized as timely filed, involved both “a claim against the Government of the United States” and “a discrimination complaint.” 5 C.F.R. § 550.804(b)(1). Thus, both the plaintiffs’ MSPB appeal and their district court action satisfy the Back Pay Act’s requirement for a “timely appeal.” Furthermore, the district court that rendered judgment for the plaintiffs in this case was, without question, an “appropriate authority” to make a finding of wrongful termination in this case. Though the statute’s language is quite clear even without reference to the OPM’s interpretation, the agency’s Back Pay Act regulations confirm this straightforward conclusion, defining an “appropriate authority” as “an entity having authority in the case at hand to correct or direct the correction of an unjustified or unwarranted personnel action, including ... a court.” 5 C.F.R. § 550.803. It is quite clear that the Back Pay Act’s reference to an “unjustified or unwarranted personnel action” on its face encompasses a termination that violates the ADEA, and, again, the OPM regulations confirm this most reasonable reading of the statute: Unjustified or unwarranted personnel action means an act of commission or an act of omission ... that an appropriate authority subsequently determines, on the basis of substantive or procedural defects, to have been unjustified or unwarranted under applicable law, Executive order, rule, regulation, or mandatory personnel policy established by an agency or through a collective bargaining agreement. Such actions include personnel actions and pay actions (alone or in combination). 5 C.F.R. § 550.803 (emphasis added). Thus, an appropriate authority found that an act of commission (plaintiffs’ termination) was unjustified by virtue of substantive violation of plaintiffs’ rights (age discrimination) under applicable law (the ADEA). Finally, plaintiffs’ termination indisputably led to a “withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee.” Moreover, the ADEA is without question an “applicable law” for purposes of the Back Pay Act. The OPM’s regulations do not define “applicable law,” nor is the meaning of “applicable” otherwise obvious from the text of the statute. However, the House committee report for the Back Pay Act states that the phrase “applicable law” is intended “to cover those laws and regulations, now or hereafter in effect, which provide the basis for operations under the Government personnel systems.” H.R.Rep. No. 89-32, at 4 (1965) (emphasis added). The ADEA provides precisely such a basis for federal personnel operations by barring a wide range of federal employers, including all “executive agencies,” from carrying out personnel actions that discriminate against employees over the age of 40. See 29 U.S.C. § 633a. Such a broad and mandatory proscription, which governs all personnel actions undertaken by federal executive agencies, plainly provides a “basis for operation under the [federal] Government personnel system.” Any doubt as to the ADEA’s central role in the federal personnel system is dispelled by the statute’s treatment in the Civil Service Reform Act (CSRA) of 1978, which “established a comprehensive system for reviewing personnel action taken against federal employees.” Fausto, 484 U.S. at 455, 108 S.Ct. 668. The CSRA created an elaborate procedure for the vin dication of civil servants’ ANEA claims, including a requirement that federal agencies resolve ADEA claims, a requirement that agency decisions be appealable to the Merit Systems Protection Board, and a provision for judicial review. See 5 U.S.C. § 7702(a). By explicitly providing for resolution of ADEA claims as part of its comprehensive “framework for evaluating adverse personnel actions against [federal employees],” Fausto, 484 U.S. at 443, 108 S.Ct. 668, the CSRA confirms that the ADEA’s ban of age discrimination is a basic civil service protection, and precisely the sort of “applicable law” that Congress contemplated in adopting the Back Pay Act’s waiver of sovereign immunity. Thus, one need not look any further than the text of the Back Pay Act to recognize that the Act waives the federal government’s immunity from liability for interest in cases such as this one. Calzia and Wrucke were “employee[s] of an agency who, on the basis of a timely appeal [their district court action] ... [were] found by appropriate authority [the district court] under applicable law [the ADEA] ... to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal ... of all or part of’ their pay. 5 U.S.C. § 5596(b)(1). All of the Back Pay Act’s conditions for a waiver of sovereign immunity on interest are clearly satisfied in this case, and Calzia and Wrucke are accordingly entitled to interest on the award of back pay they secured in the district court. III. The government’s arguments to the contrary are wholly unpersuasive. That the ADEA itself does not waive the government’s sovereign immunity from interest is irrelevant. The Back Pay Act was intended to provide “a more uniform and equitable basis” for awards of back pay to federal employees. H.R.Rep. No. 89-32, at 1 (1965) (emphasis added). Reflecting the goal of uniformity in back pay awards, the Act’s waiver of immunity expressly extends to cases in which a personnel action is found to be unwarranted under “applicable law, rule, regulation, or collective bargaining agreement.” 5 U.S.C. § 5596(b)(1). This language clearly does not contemplate that the Back Pay Act’s waiver of immunity applies only to laws, rules, regulations, or collective bargaining agreements that contain their own separate waiver of sovereign immunity. The Act’s text does not hint at such a limitation, and reading such a limitation into the Act would result in a fragmented back pay scheme completely at odds with the Act’s purpose of establishing “a single, general, and comprehensive pay adjustment authority to be applied after an erroneous or unwarranted personnel action is corrected.” H.R.Rep. No. 89-32, at 1 (1965). We disagree with the Eighth Circuit’s holding that, under the no-interest rule, “to provide the sovereign immunity waiver [for interest] absent in Title VII, the separate statute must, at a minimum, unequivocally express Congress’s intent to waive sovereign immunity under Title VII.” Arneson v. Callahan, 128 F.3d 1243, 1246 (8th Cir.1997). The Eighth Circuit’s approach, which directly conflicts with that of the D.C. Circuit as well as that of the Fourth and Tenth Circuits, would render impracticable Congress’s goal of creating a single uniform system for civil servant back pay awards, as it would require the Back Pay Act to be constantly amended to explicitly reference each new substantive employment statute enacted by Congress. We see no reason why the no-interest rule requires such a result, as that rule merely requires that the federal government’s waiver of immunity from an award of interest be express — not that the waiver must specifically mention every statute to which it may conceivably apply. See Library of Congress v. Shaw, 478 U.S. 310, 311, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986). There is no logical reason why the rule should bar Congress from adopting a general waiver of immunity from an award of interest, so long as it does so in express terms, as it did in the Back Pay Act. For similar reasons, it is not relevant that plaintiffs did not bring an action under the Back Pay Act itself. As the District of Columbia Circuit has explained, “the Back Pay Act is an auxiliary measure ” in relation to substantive antidiscrimination statutes such as the ADEA. Brown, 918 F.2d at 217 (emphasis added). Just as civil rights plaintiffs need not bring suit under 42 U.S.C. § 1988 in order to collect attorney’s fees from the government under that provision, a federal employee suing the government for violation of a substantive antidiscrimination statute need not bring suit under the Back Pay Act in order to receive back pay and interest from the United States. Where a federal employee brings an action under an “applicable law” that itself provides a federal cause of action and waives the government’s immunity from suit, the operation of the Back Pay Act’s waiver of interest turns not on whether the suit is brought under the Back Pay Act, but rather on whether the express terms of the Back Pay Act are satisfied, as they clearly are in this case. The government poses the question of why, if the Back Pay Act (which was enacted in 1966) were intended to waive immunity in suits brought under substantive antidiscrimination statutes, Congress found it necessary to amend Title VII in 1972 to permit discrimination suits against the federal government, and why it found it necessary to again amend Title VII in 1991 to allow for awards of interest. The government’s argument regarding the 1972 amendments to Title VII confuses the issue of the government’s substantive liability for violations of Title VII with the question of its liability for interest once such a violation has been found. The Back Pay Act does not waive the government’s sovereign immunity from suit under statutes such as the ADEA or Title VII; it merely waives the government’s immunity from certain remedies where the government has already waived its immunity from suit. Because the Act operates only where the government has already waived its immunity from suit, it did not obviate the need for Congress to expressly waive the government’s immunity from suit for violations on its part of Title VII’s anti-discrimination provisions. Likewise, Congress’s decision to amend Title VII in 1991 to allow for awards of interest followed shortly after the D.C. Circuit’s 1990 decision in Brown v. Sec’y of the Army, 918 F.2d 214. Brown held that although the Back Pay Act applies to Title VII suits, because the Act is limited to personnel actions resulting in a “withdrawal or reduction of all or part of the [employee’s] pay,” its remedies were unavailable to plaintiffs who sued under Title VII not regarding a reduction in pay, but rather regarding wrongfully withheld promotions. Id. at 220; see also United States v. Testan, 424 U.S. 392, 406, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (holding that Back Pay Act does not provide a remedy for misclassified federal employees). Congress’s 1991 amendments to the Civil Rights Act allowed Title VII plaintiffs to obtain interest even in cases, such as denials of promotion, not involving such a “withdrawal or reduction” of an employ ee’s pay. As such, the 1991 amendments expanded upon the interest waiver of the Back Pay Act, and would not be rendered superfluous, as the government suggests, by a reading of that Act, such as the D.C. Circuit had just given it. IV. The “government offers no convincing reason why the Back Pay Act does not supply the immunity waiver prescription absent in” the ADEA. Brown, 918 F.2d at 216. Our conclusion that the Back Pay Act does, in fact, provide such a waiver, is the only one available to us in light of the Act’s clear and unequivocal language, as well as Congress’s clear intent that the Act define a uniform remedial scheme for all awards of back pay against the federal government. Calzia and Wrueke are accordingly entitled to an award of interest in addition to the back pay already awarded to them by the district court. REVERSED and REMANDED. . The district court dismissed the claims of twelve additional plaintiffs challenging the Reduction in Force, and this court affirmed that denial on appeal. Those twelve plaintiffs are not involved in the present appeal.

4184848-26832

OPINION WATFORD, Circuit Judge: The issue raised by this appeal is whether the police violated Johnny Nora’s Fourth Amendment rights when they searched his home. The search yielded narcotics and firearms, which formed the basis for the federal charges brought against him. After the district court denied Nora’s motion to suppress the evidence seized from his home, Nora entered a conditional guilty plea pending the outcome of this appeal. Nora contends that, although the officers obtained a search warrant, all of the evidence discovered during the search must be suppressed because the warrant was invalid. The warrant was invalid, Nora argues, because it was based on information acquired as a result of his unlawful arrest. And his arrest was unlawful, Nora urges, because the officers either lacked probable cause to arrest him or, alternatively, arrested him in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). I The events relevant here occurred on a single night in January 2008. Two uniformed police officers were patrolling Nora’s neighborhood in South Central Los Angeles in an unmarked car. As they drove down Nora’s street, the officers saw three men they didn’t know standing on the sidewalk in front of Nora’s two-bedroom house, about 75 yards away. The officers lost sight of the men for a few seconds. By the time the officers pulled up in front of the house and got out of the car, two of the three men (Nora and Andre Davis) were standing on the porch, while the third (Patrick Hodges) stood in the front yard, which was enclosed by a metal fence. See Appendix (photograph of front yard and porch). The officers stood on the sidewalk and attempted to engage in casual conversation with the men. According to the officers, whose testimony the district court credited over Nora’s conflicting testimony, Nora appeared nervous and stood stiffly with his right side obscured from the officers’ view. Seconds into the conversation, Nora abruptly spun toward the front door and pushed past Davis to get into the house. As he did so, the officers could see that Nora was holding a blue-steel semi-automatic handgun in his right hand. One of the officers shouted “Stop! Police!” but Nora and Davis ignored the command, rushed into the house, and shut the door behind them. After Nora and Davis fled into the house, one of the officers detained Hodges, who was still standing in the front yard, while the other officer ran around the side of the house to watch the back door. Someone inside the house turned off the only light that had been on, leaving the house completely dark. The officers then called for backup. Within minutes, some 20 to 30 officers arrived and surrounded the house with weapons drawn. They were aided by a police helicopter hovering above whose lights, Nora’s wife testified, lit up the house “like the daytime.” A standoff ensued for the next 20 to 30 minutes, which ended when the officers used a public address system to order the occupants of the house to come out. Nora and Davis complied, followed a few minutes later by Nora’s wife and children. Officers immediately handcuffed Nora and searched him. They found a small amount of marijuana and more than $1,000 in cash on his person. One of the officers read Nora the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and then briefly questioned him. Nora made several incriminating statements in response to those questions. Specifically, Nora admitted that he had personal use quantities of methamphetamine and heroin in a dresser drawer, that he lived at the house, and that he belonged to a particular street gang. After determining Nora’s identity, the officers ran a criminal background check, which revealed that Nora had a prior conviction for carrying a loaded firearm and two prior convictions for being a felon in possession of a firearm. The officers sought and obtained a warrant to search Nora’s home for the following items: marijuana, methamphetamine, heroin, and related paraphernalia; evidence relating to the sale of narcotics; firearms, magazines, and ammunition; and evidence of gang membership. The affidavit supporting the warrant relied on the officers’ observations of Nora outside his home, as well as the evidence obtained as a result of Nora’s arrest — namely, the marijuana and cash found on his person, his post-arrest statements, and the record of his prior convictions. Among other things, the search of Nora’s home resulted in seizure of the following: • From an ironing-board closet hidden behind the refrigerator: quantities of cocaine, cocaine base, marijuana, over $9,000 in cash, and four semiautomatic handguns. • From a bedroom dresser drawer: quantities of heroin and methamphetamine. • From the detached garage: quantities of cocaine base, one handgun, one rifle, two shotguns, two electronic scales, handgun magazines, and ammunition. A federal grand jury charged Nora with possession with intent to distribute controlled substances, possession of firearms in furtherance of a drug trafficking offense, possession of an unregistered firearm, and one count of being a felon in possession of a firearm. Nora entered a conditional guilty plea to possession of cocaine base with intent to distribute, reserving his right to appeal the district court’s denial of his suppression motion. The court ultimately sentenced Nora to 122 months in prison. II Nora first contends that the officers lacked probable cause to arrest him. The government counters that the officers had probable cause to arrest Nora for violating California Penal Code § 25850(a) (formerly § 12031(a)). That statute, as relevant here, makes it a misdemeanor to carry a loaded firearm “while in any public place or on any public street.” § 25850(a). The officers’ firsthand observations of Nora on the porch undoubtedly gave them probable cause to believe he was carrying a firearm. But for purposes of § 25850(a), Nora’s front porch is not a “public place.” See People v. Strider, 177 Cal.App.4th 1393, 100 Cal.Rptr.3d 66, 74 (2009). The question, then, is whether the officers had probable cause to believe both that Nora had been carrying the firearm while standing on the sidewalk (which is a public place), and that the firearm was loaded. The officers’ observations gave rise to a “fair probability” that Nora had been carrying the handgun while standing on the sidewalk. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). That’s where the officers first saw him, and they lost sight of him for only a few seconds before they next saw him standing on the porch with the gun in his hand. They did not see him pick up anything or accept anything from Davis or Hodges while on the porch. Given the short interval during which the officers lost sight of Nora, they had reasonable grounds to believe that the firearm they saw him holding on the porch had been in his hand just moments earlier on the sidewalk as well. See Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). The facts known to the officers also established a fair probability that the firearm was loaded. The particular firearm involved here — a semi-automatic handgun — is principally used for self-defense and protection of the home, see District of Columbia v. Heller, 554 U.S. 570, 628, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), purposes served most effectively if the weapon is loaded. The officers saw Nora carrying the handgun at night outside a home in which he later sought refuge, suggesting he was in fact carrying the handgun for those purposes. As the district court noted, the fact that Nora carried the handgun in his hand “at the ready” strengthened the inference it was loaded; it wasn’t stored in a gun case or left unattended in a vehicle, circumstances in which a firearm might more plausibly be unloaded. And Nora’s unprovoked flight into the house upon seeing the officers added further weight to the inference that criminal wrongdoing might be afoot. See Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). These facts, taken together, provided a reasonable basis for believing Nora had violated § 25850(a). Nora argues that it’s possible he picked up the handgun between the time he was standing on the sidewalk and the time he reached the porch, and that the gun could have been unloaded. But the concept of probable cahse requires us to deal in probabilities, not certainties, and for that reason it doesn’t demand “the same type of specific evidence of each element of the offense as would be needed to support a conviction.” Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Taking into account the totality of the circumstances, the officers needed to have only a “reasonable ground” for believing Nora had violated § 25850(a). Pringle, 540 U.S. at 371, 124 S.Ct. 795. Here, they did. Ill Nora next contends that, even if the officers had probable cause to arrest him, they arrested him in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Court held in Payton that the Fourth Amendment forbids arresting a suspect inside his home unless the police first obtain an arrest warrant or an exception to the warrant requirement applies. Id. at 590, 100 S.Ct. 1371. That rule is designed to protect “the privacy and the sanctity of the home,” id. at 588, 100 S.Ct. 1371, and stems from “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.” Id. at 601, 100 S.Ct. 1371. The government properly concedes that the police arrested Nora “inside” his home for purposes of the Payton rule. Although officers physically took Nora into custody outside his home in the front yard, they accomplished that feat only by surrounding his house and ordering him to come out at gunpoint. We’ve held that forcing a suspect to exit his home in those circumstances constitutes an in-home arrest under Payton. See, e.g., Fisher v. City of San Jose, 558 F.3d 1069, 1074-75 (9th Cir.2009) (en banc); United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir.1985). Since the officers didn’t obtain an arrest warrant, Nora’s arrest violated the Fourth Amendment unless an exception to the warrant requirement applies. The government argues, and the district court found, that the “exigent circumstances” exception to the warrant requirement applies. That exception permits a warrantless in-home arrest in certain narrowly defined circumstances. See United States v. Struckman, 603 F.3d 731, 743 (9th Cir.2010). One such circumstance is where the government can show that the delay necessary to secure a warrant would create “a substantial risk of harm to the persons involved or to the law enforcement process.” Al-Azzawy, 784 F.2d at 894 (internal quotation marks omitted). Nora didn’t present the kind of immediate threat to the safety of officers or others necessary to justify a disregard of the warrant requirement. Our decision in Alr-Azzawy provides a useful contrast. In that case the defendant refused commands to exit his home a short time after he threatened to shoot his neighbor, to light his neighbor’s trailer on fire, and to “blow up” the entire trailer park in which the two lived if the neighbor bothered the defendant’s family again. Id. at 891, 894. Officers were told that the defendant had also threatened the neighbor with a pistol the day before and had been seen in possession of hand grenades and automatic weapons a few days earlier. Id. at 891. We held that exigent circumstances justified the defendant’s warrantless in-home arrest because the officers reasonably believed that he “possessed illegal explosives and was in an agitated and violent state.” Id. at 894. Even on those facts, we said the exigency question was close. Id. The facts of this case are decidedly less compelling from an exigency standpoint than those in Alr-Azzawy. True, the officers saw Nora in possession of a handgun. But Nora never aimed the weapon at the officers or anyone else, and the officers had no evidence that he had used or threatened to use it. Cf. Fisher, 558 F.3d at 1072-73 (suspect aimed rifle at officers and threatened to shoot). The officers had no reason to believe that illegal weapons such as explosives were present inside Nora’s home, or that anyone else to whom Nora may have posed a danger was inside. Nor had Nora given any other indication that he was in “an agitated and violent state.” Al-Azzawy, 784 F.2d at 894. Finally, the officers had no reason to believe Nora might pose a danger to the public by attempting to flee, since they had the house completely surrounded and could monitor all exit points. See United States v. Gooch, 6 F.3d 673, 679 (9th Cir.1993) (defendant resting in closed tent posed no present danger to officers or other campers, despite having discharged firearm in crowded campground hours earlier). Our conclusion that no exigency existed is buttressed by the fact that the offense involved here was a misdemeanor. At the time the officers ordered Nora to exit his home, they had probable cause to believe he had committed only a misdemeanor violation of California Penal Code § 25850(a). The Supreme Court has said we should be hesitant to find exigent circumstances “when the underlying offense for which there is probable cause to arrest is relatively minor.” Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Reflecting that hesitancy, we’ve held that “an exigency related to a misdemeanor will seldom, if ever, justify a warrantless entry into the home.” Hopkins v. Bonvicino, 573 F.3d 752, 769 (9th Cir.2009) (internal quotation marks omitted). In our view, this isn’t one of the rare cases in which exigent circumstances can be found notwithstanding the relatively minor nature of the offense involved. IV Having concluded that the officers had probable cause to arrest Nora but made the arrest in violation of Payton, we must next decide whether the evidence obtained as a result of Nora’s unlawful arrest should be suppressed. See Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). That evidence falls into three categories: (1) the cash and marijuana found on Nora during the pat-down search incident to his arrest; (2) Nora’s post-arrest statements admitting gang membership and the presence of personal use quantities of narcotics in the house; and (3) information relating to Nora’s identity — in particular, the record of his past convictions. A As to the cash and marijuana found on Nora’s person, our analysis is guided first and foremost by New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), which established the scope of the exclusionary rule’s application following a Payton violation. In Harris, police had probable cause to arrest the defendant but arrested him in his home without a warrant or exigent circumstances. The defendant made incriminating statements while still inside his home, and later signed a written confession incriminating himself at the police station. The Court noted that the statements made inside the home were properly suppressed. Id. at 20, 110 S.Ct. 1640. But the Court held that the written statement made at the police station was not subject to suppression, reasoning that “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.” Id. at 21, 110 S.Ct. 1640. The Court refused to suppress the statement made outside the home because doing so would not have advanced the deterrent purpose the exclusionary rule is designed to serve. That purpose is served, the Court held, only by suppressing evidence that “is in some sense the product of illegal governmental activity.” Id. at 19, 110 S.Ct. 1640 (internal quotation marks omitted). In the context of a Payton violation, the illegality doesn’t consist of gaining custody of the defendant; the existence of probable cause to arrest provides a lawful basis for that intrusion upon the defendant’s liberty. Id. at 18, 110 S.Ct. 1640. Instead, the illegality consists of the officers’ intrusion into the privacy and sanctity of the home without prior judicial authorization. Id. at 17, 110 S.Ct. 1640. Only evidence that the police discover as a result of having made the arrest “in the home rather than someplace else” can be deemed the product of a Payton violation. Id. at 19, 110 S.Ct. 1640. Both the Supreme Court and our court have held that we must suppress evidence seized during a pat-down search of the defendant’s person following a Payton violation. See Kirk v. Louisiana, 536 U.S. 635, 637-38, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002) (per curiam); United States v. Blake, 632 F.2d 731, 733, 736 (9th Cir.1980). Those cases involved Payton violations in which the police physically intruded into the home and conducted the pat-down search while still inside. The question before us is whether the rule of Kirk and Blake should be applied to Payton violations involving a suspect who, like Nora, is forced to exit his home in response to police coercion, such that the pat-down search takes place outside the physical confínes of the home. The Sixth Circuit appears to have applied the rule in these circumstances, albeit without analysis. See United States v. Saari, 272 F.3d 804, 807, 812 (6th Cir.2001) (upholding suppression of handgun found in defendant’s waistband after police ordered him to exit his home). Deciding whether to apply a rule to a new factual scenario requires knowing something of the rule’s rationale. Although the exact rationale underlying the rule established in Kirk and Blake wasn’t articulated, each of the potential rationales supports extending the exclusionary rule to the scenario at issue here. On the one hand, the rule could be based simply on the notion that a Payton violation renders an arrest unlawful, and a search incident to an unlawful arrest is itself always unlawful, wherever it happens to occur. If Kirk and Blake rest on that rationale, then deciding the suppression issue before us is easy: The cash and marijuana found during the search incident to Nora’s unlawful arrest must be suppressed, even though the search occurred outside his home in the front yard. On the other hand, Kirk and Blake could rest on the notion that, when the police arrest a suspect by physically intruding into his home without a warrant, any personal effects found on his person must be suppressed in order to protect the privacy and sanctity of the home. An individual might wear or carry things on his person within the confínes of his home that he wouldn’t take with him when venturing out in public, so items discovered during a pat-down search conducted inside the home could well be “the fruit of having been arrested in the home rather than someplace else.” Harris, 495 U.S. at 19, 110 S.Ct. 1640. Viewed in that light, Payton’s protection of the privacy and sanctity of the home would be incomplete if it didn’t extend to the person of a suspect arrested inside his home. That same rationale applies when the police violate Payton by ordering a suspect to exit his home at gunpoint. The home receives special constitutional protection in part because “at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Payton, 445 U.S. at 589-90, 100 S.Ct. 1871 (internal quotation marks and alterations omitted). When the police unreasonably intrude upon that interest by ordering a suspect to exit his home at gunpoint, the suspect’s opportunity to collect himself before venturing out in public is certainly diminished, if not eliminated altogether. In this context, too, Payton’s protection of the privacy and sanctity of the home would be incomplete if it didn’t extend to the person of a suspect forced to abandon the refuge of his home involuntarily. For these reasons, evidence seized during a pat-down search incident to an arrest made in violation of Payton must be suppressed, whether the search occurs inside the home, as in Kirk and Blake, or outside the home, as in this case. In either scenario, evidence found on the suspect’s person should be regarded as “the fruit of having been arrested in the home rather than someplace else.” Harris, 495 U.S. at 19, 110 S.Ct. 1640. Accordingly, the cash and marijuana seized during the search incident to Nora’s arrest must be suppressed. B We conclude that Nora’s post-arrest statements are subject to suppression as well. Under our decision in United States v. Shetler, 665 F.3d 1150 (9th Cir.2011), Nora’s statements must be deemed the fruit of the unlawful search of his person. In Shetler, the police conducted an extensive illegal search of the defendant’s home while the defendant was detained outside, watching as the search progressed. Id. at 1154. Officers found evidence of methamphetamine production in the house and garage. When questioned by the police 36 hours later, the defendant confessed to having engaged in methamphetamine production. We held that the defendant’s confession was the product of the illegal search and had to be suppressed. We noted that in these circumstances officers will likely use evidence gleaned from the illegal search in questioning the suspect, and the suspect’s answers “may be influenced by his knowledge that the officials had already seized certain evidence.” Id. at 1158. Because the government bore the burden of proving that the defendant’s confession was not “fruit of the poisonous tree,” id. at 1157, the government was required to produce evidence demonstrating that the defendant’s answers “were not induced or influenced by the illegal search.” Id. at 1158. The government failed to do so. The same is true here. Nora’s incriminating statements followed immediately on the heels of the unlawful search of his person, which yielded marijuana and a large amount of cash. Whether the police questioned Nora about that evidence or not, his answers were likely influenced by his knowledge that the police had already discovered it. As in Shetler, the government produced no evidence to the contrary. Nor has the government shown that intervening circumstances rendered the connection between Nora’s statements and the illegal search “so attenuated as to dissipate the taint.” , Id. at 1159 (internal quotation marks omitted). Nora’s post-arrest statements must therefore be suppressed. C As to Nora’s identity — in particular, the record of his prior convictions — we need not decide whether that evidence is admissible. We will assume that it is, resolving any doubts on that score in the government’s favor. As will become clear, even on that assumption, we conclude that the government cannot prevail. V In light of what we’ve said above, some of the evidence included in the search warrant affidavit was admissible and some of it wasn’t. The remaining question is whether that fact renders the search warrant invalid in whole or in part. A search warrant isn’t rendered invalid merely because some of the evidence included in the affidavit is tainted. United States v. Reed, 15 F.3d 928, 933 (9th Cir.1994). The warrant remains valid if, after excising the tainted evidence, the affidavit’s “remaining untainted evidence would provide a neutral magistrate with probable cause to issue a warrant.” Id. (internal quotation marks omitted); see also United States v. Grandstaff, 813 F.2d 1353, 1355 (9th Cir.1987). Thus, after excising the cash and marijuana found on Nora’s person and his post-arrest statements, we must determine whether the remaining untainted evidence was sufficient to support issuance of the warrant. We make that determination without the usual deference owed to the magistrate’s initial finding of probable cause. United States v. Kelley, 482 F.3d 1047, 1051 (9th Cir.2007). Two principal pieces of evidence remain after excising the tainted evidence from the affidavit: (1) the officers’ observation of Nora with a handgun under circumstances establishing probable cause to believe he had violated California Penal Code § 25850(a); and (2) the officers’ knowledge of Nora’s criminal history, in particular his prior conviction for carrying a loaded firearm and his two prior convictions for being a felon in possession of a firearm. This remaining, untainted evidence did not provide probable cause to search Nora’s home for marijuana, heroin, and methamphetamine, or for evidence of gang membership, all of which were listed in the warrant as items subject to seizure. Those portions of the warrant are therefore invalid. That leaves the portion of the warrant authorizing the seizure of “[fjirearms, assault rifles, handguns of any caliber and shotguns of any caliber,” as well as ammunition for such firearms. We must decide whether that portion of the warrant is valid; if it is, the severance doctrine might apply. See United States v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir.1984) (noting that, if applicable, the severance doctrine “allows us to strike from a warrant those portions that are invalid and preserve those portions that satisfy the fourth amendment”). To satisfy the Fourth Amendment, the warrant’s firearms clause must be supported by probable cause and describe with particularity the items to be seized. United States v. Sells, 463 F.3d 1148, 1156 (10th Cir.2006); In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 857 (9th Cir.1991). Because we conclude that the firearms clause was not supported by probable cause, we need not decide whether the clause satisfies the particularity requirement. The untainted evidence unquestionably provided.probable cause to search Nora’s home for the blue-steel semiautomatic handgun the officers saw him carrying. Nora ran into the house with the gun in his hand but exited without it, giving the officers reason to believe it was still inside. The gun was of course evidence of the crime for which the officers had probable cause to arrest him and would therefore have been subject to seizure on that basis alone. But without more, the officers’ firsthand observations of Nora with a gun in his hand did not give them reasonable grounds to believe that any additional firearms would be found in the house. See Millender v. Cnty. of Los Angeles, 620 F.3d 1016, 1025 (9th Cir.2010) (en banc), rev’d on other grounds sub nom. Messerschmidt v. Millender, — U.S. —, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012).

9448434-15226

OPINION AND ORDER (Paper 24) MURTHA, Chief Judge. Defendant The Vermont Country Store (‘VCS”) moves for summary judgment on Plaintiff Sarah A. Green’s claims for wrongful termination, breach of good faith, age discrimination and retaliation. For the reasons set forth below, VCS’s motion is GRANTED. I. Background A. The Outside Audit Recommendations and Green’s Termination Green was employed by VCS as Training and Development Manager from March 25, 1996 until January 3, 2001. In October of 2000, Gallagher, Flynn & Company (“GFC”) conducted an audit of VCS’s Human Resources Department for the purpose of “recommendfing] the proper structure for the Human Resource department as VCS continues to grow.” Paper 25, Ex. C. Among other recommendations, the audit concluded that VCS should not have a separate position for Training and Development. We believe that most of the training that will take place in the organization will be conducted by outside companies. The VP of HR, as part of the Organizational Development function, should be responsible for the development and implementation of the training and development plan for VCS. The incumbent in the Training and Development position today is not seen by the people we interviewed as being effective in this role. The positive feedback she received was by managers who use her as an HR Generalist regarding one-on-one employee issues. Most of the people we interviewed were not sure as to the overall contribution that has been made by the incumbent. Several thought that the programs that have been delivered were not followed through properly. Given this reality, we believe that VCS would be better served by a Manager of Compensation and Benefits than Training and Development. As VCS grows, this position could be added in the future. Typically, you do not see in-house Training and Development managers until the company reaches 750-1000 employees. Id. The audit also recommended “establishing a structure whereby every department in the company has a [human resources] representative assigned to it.” Id. This representative, a so-called “Human Resources Generalist” “would handle virtually all the HR needs for his/her assigned departments!,]” by “developing] a close working relationship with each of the supervisors and managers whom he/she is assigned to[,]” and “knowing the ‘pulse’ and issues of the non-management employees in his/her assigned areas.” Id. During her deposition, Green testified that she lacked qualifications and training needed for the position of Benefits and Compensation Manager. Green also conceded that prior to her dismissal she told her immediate supervisor, Vice-President for Human Resources Pamela Nemlich, that she preferred not to spend a large amount of her time at VCS “dealing with hourly employees,” since she “had done that for many years ... and ... wanted to move in to the next level.” Id., Ex. B, at 102-03. On January 3, 2001 — without prior warning that her job performance was lacking or notice about the recommendations contained in the GFC audit — Green was terminated from her position. When Green questioned why she was being terminated, Nemlich told her that the decision was based on Green’s “value” to VCS and the GFC audit recommendation that VCS eliminate Green’s position in favor of a benefits and compensation position. Green later testified that her termination was a “direct” result of the GFC audit’s criticism of her job performance, as well as the recommendation that the Human Resources Department would operate more effectively with a Manager of Benefits and Compensation position. B. VCS’s Personnel Policies The first page of VCS’s Employee Handbook contains an isolated paragraph that states: “The Vermont Country Store is an equal opportunity employer. The Vermont Country Store subscribes to an employment at will policy. This handbook establishes guidelines only. It does not constitute a contract in any way, shape, or form.” Paper 25, Ex. E. The Handbook elsewhere states: “The Vermont Country Store reserves the right to dismiss an employee with or without cause and with or without notice at any time.” Id. With respect to VCS’s employee policies, Green testified that: (1) she received and read the Employee Handbook; (2) she was never told the Handbook constituted an employment contract; (3) she understood VCS could terminate its employees “on the spot,” but that VCS sometimes chose to give its employees a warning instead; (4) she was never told she could only be fired for just cause or only if she received a prior warning. C. Green’s Alleged Replacement Green was 52 years of age when she was terminated. Six weeks prior to her termination, VCS hired Kelly Moriarty to be a Human Resources Specialist. Moriarty was 30 years old when she was hired and had no prior experience in the field of human resources. See Paper 25, Ex. I. Moriarty testified that she “felt that [she] was hired to do half training and half employee relations.” Id. As of July 2001, however, Moriarty’s job responsibilities, job title, and pay level differed from those held previously by Green. In particular, Moriarty’s job responsibilities primarily encompassed employee relations, including recruitment, orientation and retention. Id. II. Discussion A. Count I: Wrongful Termination/Breach of Contract Under Vermont law, there is a presumption that employment for an indefinite period is employment “at will.” See Havill v. Woodstock Soapstone Co., 783 A.2d 423, 427 (Vt.2001). “At will” employment relationships are “terminable at any time, by either party, for any reason or for no reason at all.” Trombley v. Southwestern Vt. Med. Ctr., 169 Vt. 386, 738 A.2d 103, 108 (1999). “At-will employees are thus barred from bringing wrongful discharge claims.” Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1242 (2d Cir.1995) (applying Vermont law). The presumption of “at will” employment, however, is only a “basic precept of employment contract construction ... [,]” “that can ‘be overcome by evidence to the contrary.’ ” Taylor v. Nat’l Life Ins. Co., 161 Vt. 457, 652 A.2d 466, 470 (1993) (quoting Foote v. Simmonds Precision Prods. Co., 158 Vt. 566, 613 A.2d 1277, 1279 (1992)); see also Havill, 783 A.2d at 427 (the “at will” presumption is a “rule of construction, and not of substantive law, which the parties can modify according to the usual rules of contract”). “In determining whether the at-will status has been modified, a court may consider a variety of factors, including the personnel policies or practices of the employer, and actions or communications by the employer reflecting assurances of continued employment.” Brace v. Int’l Bus. Machines Corp., 953 F.Supp. 561, 567 (D.Vt.1997) (citing Benoir v. Ethan Allen, Inc., 147 Vt. 268, 514 A.2d 716, 718 (1986)); see Havill, 783 A.2d at 428. Personnel policy manuals may create an enforceable employment contract if they are distributed to employees and contain “ ‘definitive policies, which expressly or impliedly include a promise for specific treatment in specific situations....’” Trombley, 738 A.2d at 109 (quoting Ross v. Times Mirror, Inc., 164 Vt. 13, 665 A.2d 580, 584 (1995)); see Havill, 783 A.2d at 428 (“Personnel policies that commit an employer to a progressive discipline system present a triable issue of fact on whether an employer may terminate an employee only for just cause.”); Ross, 665 A.2d at 585 (“The critical inquiry is ... whether the procedure amounted to an enforceable promise of specific treatment in a specific circumstance.”). Similarly, an employer’s practice may create an enforceable employment contract so long as “it is clearly established and uniformly and consistently applied throughout the company.” Ross, 665 A.2d at 585. In this case, Green argues she was not an “at-will” employee and that her termination was wrongful because of a “general spirit of fairness contained in the handbook pronouncements and practices pursued by VCS.” Paper 25, Ex. B, at 97-98. She maintains that three separate statements in the Handbook create an implied employment contract with VCS: First, Green cites the “President’s Welcome” section of the Handbook, which reads in relevant part: We pride ourselves on excellent relationship with two groups of peoplr-our employees and our customers. *** We believe that an employee who is proud of the company, satisfied with his or her job, compensation, benefits, and working conditions, happy with co-workers, and challenged for personal growth, will be most likely to offer exemplary service to our customers. Therefore, in order for our customers to come first, our employees really have to come first. I strongly encourage every person in this organization to never be afraid to care.... Care that the company’s future success is yours also. This company values these things and supports individuals whose actions exhibit that kind of attitude. You will always have my support when you conduct yourself this way. Paper 25, Ex. E. Second, Green cites the Handbook section entitled “Ambassadors,” which states: This message is from [the VCS President] to every current employee and is intended to help new and prospective employees understand our company. The comment I hear the most from people outside VCS is, “What nice people you have working with you.’ Each of us is an ambassador and obviously people have noticed and will continue to notice. Just think how good it made you feel when you were first joining VCS to be welcomed and assisted by the people already on the job. And think about what made you decide to join us. Use these personal thoughts in conducting your ambassadorial duties. Id. Third, Green relies on a “value statement” contained in a 1994 version of the VCS Employee Handbook which states: “Management will assume consistency in planning to maintain our record of no unplanned lay-offs.” Id., Ex. H. Green also contends that certain VCS employee discipline practices created an implied employment contract. For example, Nemlich testified that “[i]f an employee wasn’t acting as if the ultimate boss was the customer,” “[VCS management] would probably sit down and talk about what was going on.” Paper 28, Ex. 1, at 44. In addition, when an employee was to be terminated, Nemlich would “at least” review one of that employee’s annual job performance appraisals. Id. at 41-42. Viewing the entire record in a light most favorable to Green, no reasonable jury could conclude that an implied employment contract existed between Green and VCS. First, the Employee Handbook contains only general statements of company policy; there is no definitive and objective promise for a specific course of treatment for specific employee conduct, or for termination only upon just cause. Compare Ross, 665 A.2d at 584-86 (no evidence of an enforceable contract exists without proof of specific and progressive disciplinary procedure), and LeBlanc v. United Parcel Serv., Inc., 972 F.Supp. 827, 831 (D.Vt.1997) (no contract can be implied from general handbook statements “stressing fair treatment, cooperation, communication, and delegation of decision-making authority”), with Farnum v. Brattleboro Retreat, Inc., 164 Vt. 488, 671 A.2d 1249, 1253-54 (1995) (jury may determine whether handbooks containing a progressive, multi-step discipline and termination procedure created an enforceable employment contract); Trombley, 738 A.2d at 108 (issue of employment relationship properly submitted to jury where “handbook stated that ‘[a] formal progressive disciplinary procedure has been developed to ensure that employees are treated in a consistent and reasonable manner’ ”), and Benoir, 514 A.2d at 718 (existence of employment contract properly submitted to jury where “termination provisions contained in the employee handbook set up a three-step disciplinary procedure for violation of listed rules”). Second, Nemlich’s statement that she would “probably” talk with an employee if the employee failed to “treat the customer as the boss” is not proof that such “talks” are clearly established and uniformly and consistently practiced throughout the company so as to constitute an enforceable promise to terminate an employee only after a “talk” occurs. Compare Benoir, 514 A.2d at 718 (existence of implied employment contract properly submitted to jury where “defendant’s plant manager conceded that management referred to the [three-step] handbook [disciplinary procedure] whenever an issue arose concerning the possible discharge of a company employee”) (emphasis added), with Ross, 665 A.2d at 585-86. Furthermore, even if disciplinary “talks” are clearly established practices, there is no evidence employees must receive a talk before they can be terminated for reasons unrelated to their treatment of customers. Cf. Madden v. Omega Optical, Inc., 165 Vt. 806, 683 A.2d 386, 389-90 (1996) (“Even if the handbook modified plaintiffs’ at-will status with respect to unsatisfactory performance by creating a disciplinary procedure ... plaintiffs could still be fired for reasons other than poor performance.”) (citing Foote, 613 A.2d at 1280; LeBlanc, 972 F.Supp. at 831 & 831 n. 1). Third, that Nemlich reviews an employee’s job performance appraisal before termination is not proof of an objective and definitive promise by VCS, clearly communicated to employees, that terminations will occur only after VCS management reviews the appraisals and finds good cause for termination. Cf. Madden, 683 A.2d at 390 (“[E]ven if the [company] president believed in the existence of a company-wide policy of terminating employees only for cause, [summary judgment is warranted since] plaintiffs have not presented any evidence tending to show that the president ever communicated that belief to the employees.”). Finally, while “[t]he mere inclusion of boilerplate language providing that the employee relationship is at will cannot negate any implied contract,” Farnum, 671 A.2d at 1254, the conspicuous placement of the disclaimer that the VCS Handbook is not a contract supports the view that VCS is not contractually bound by any Handbook provisions, see Ross, 665 A.2d at 583-84 (“an employer may not always be bound by statements if it conspicuously and effectively states that the policy is not intended to be part of the employment relationship”) (emphasis added); Mecier v. Branon, 930 F.Supp. 165, 169 (D.Vt.1996) (disclaimer located on the first page of an employee handbook stating “[the handbook] is not intended as a contract or agreement for employment” “indicates [the company’s] intent not to bind itself by the policies set forth in the manual”). Accordingly, Green’s breach of contract claim must fail. B. Count II: Breach of the Implied Covenant of Good Faith and Fair Dealing Green’s claim for breach of an implied covenant of good faith must be dismissed because Vermont law does not “ ‘recognize the implied covenant of good faith and fair dealing as a means of recovery where the employment relationship is unmodified and at-will.’ ” Dicks v. Jensen, 768 A.2d 1279, 1286 (Vt.2001) (quoting Ross, 665 A.2d at 586); see Madden, 683 A.2d at 391. C. Count III: Age Discrimination Under the Vermont Fair Employment Practices Act

12274604-8930

ORDER Ursula Ungaro, UNITED STATES DISTRICT JUDGE THIS CAUSE comes before the Court upon Plaintiffs Motion to Remand. D.E. 18. THE COURT has considered the Motion, the pertinent portions of the record and is otherwise fully advised on the premises. BACKGROUND On December 16, 2016, Plaintiff, B & B Jewelry, Inc. (“Plaintiff), filed its Complaint against Defendants, Pandora Jewelry, LLC (“Pandora Americas”) and Franck Saragossi (“Saragossi”) (collectively, “Defendants”), in the Eleventh Judicial Circuit in and for Miami-Dade County, asserting thirteen claims under Florida law. D.E. 1-2. Plaintiffs claims arise out of its supplier and distributor relationship with Defendants. Id. ¶ 9. Throughout its Complaint, Plaintiff references two agreements: (1) a Master Distribution Agreement, dated August 1,2012 (the “MDA”), and (2) a Master Franchise Agreement, dated August 1, 2012 (the “MFA”) (collectively, the “Agreements”), which Defendants attach as exhibits to their Notice of Removal and rely upon as the basis for this Court’s subject-matter jurisdiction. D.E. 1-3; 1-4. The Agreements, which are both dated August 1, 2012, were entered into between Plaintiff and Pandora Holding A/S (“Pandora Denmark”), who is not a named De fendant to this case. The term of the Agreements is as follows, “The term of this agreement shall be for an initial term of three (3) years from the Commencement Date unless sooner terminated in accordance with the provisions herein.” D.E. 1-3 ¶ 18.1; D.E. 1-4 ¶22.1. The Agreements state: After the initial term of three (3) years, this agreement shall be extended for an additional two (2) years provided that agreement on extension has been reached between the Parties before the end of the second Contractual Year. Where any subsequent extension is requested, the Parties must have agreed on such extension before the end of the first Contractual Year of the extension period, i.e., before the end of year 4, 6, 8, 10, 12 and so on. Agreements on extensions of this agreement, including any amendments or alterations hereto, shall be made in writing. D.E. 1-3 ¶ 18.2; D.E. 1-4 ¶ 22.2 (emphasis added). With respect to any extensions of the Agreements, the Agreements provide as follows: If agreement on extension of this agreement has not been reached in accordance with Clause 18.2 or if PANDORA decides not to extend the term, the agreement will automatically terminate upon expiry of the initial term, or the applicable subsequent agreed extension, i.e., at the end of year 3, 5, 7, 9, 11 and so on. D.E. 1-3 ¶ 18.3; see D.E. 1-4 ¶22.3. Both of the Agreements contain the following arbitration provision: PANDORA shall have the right to enforce any dispute or claim arising out of or in connection with this agreement in accordance with the Rules of Arbitration Procedure of the Danish Institute of Arbitration. The venue of arbitration shall be Copenhagen. The language of the proceeding shall be English. D.E. 1-3 § 28.2; D.E. 1-4 § 32.2. On January 18, 2017, Defendants timely removed the case to the United States District Court for the Southern District of Florida. D.E. 1. In their Notice of Removal, Defendants allege that the subject matter of this action relates to an arbitration agreement that falls under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3 (the “Convention”), and its implementing legislation under Chapter 2 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 201 et seq. On February 2, 2017, Plaintiff filed its Motion to Remand. D.E. 18. In its Motion, Plaintiff argues that there is no valid arbitration agreement because the agreement upon which Defendants rely in their Notice of Removal expired on August 1, 2015. Plaintiff further argues that its claims are based upon and arise from entirely separate verbal agreements, which do not provide for international arbitration. Finally, Plaintiff argues that if this Court accepts the purported arbitration agreement as valid, it is void against public policy under Florida law. LEGAL STANDARD A defendant may remove an action to a federal court if that court has original jurisdiction over the action. 28 U.S.C. § 1441(a). District courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[T]he burden of proving jurisdiction lies with the removing defendant.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). “Removal statutes are construed narrowly.” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). “Federal courts are courts of limited jurisdiction” and “any uncertainties as to removal' jurisdiction are to be resolved in favor of remand.” Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001). ANALYSIS The Convention is a “multi-lateral treaty that requires courts of a nation state to give effect to private agreements to arbitrate and to enforce arbitration awards made in other contracting states.” Thomas v. Carnival Corp., 573 F.3d 1113, 1116 (11th Cir. 2009). The United States, as a signatory to the Convention, enforces the Convention through the FAA. Ruiz v. Carnival Corp., 754 F.Supp.2d 1328, 1330 (S.D. Fla. 2010). The Eleventh Circuit Court of Appeals has stated, “[a] case covered by the Convention confers subject matter jurisdiction upon a district court because such a case is ‘deemed to arise under the laws and treaties of the United States.’” Bautista v. Star Cruises, 396 F.3d 1289, 1294 (11th Cir. 2005) (citing 9 U.S.C. §§ 203, 205). “Where the subject matter of an action or proceeding pending in state court relates to an arbitration agreement or award falling under the Convention, the defendant [ J may, at any time before the trial thereof, remove such action or proceeding to the district court of the United States.” 9 U.S.C. § 205. A district court must enforce an agreement to arbitrate under the Convention where the following jurisdictional requirements are met: (1) There is an agreement in writing within the meaning of the Convention; (2) the agreement provides for arbitration within the territory of a signatory of the convention; (3) the agreement arises out of a legal relationship, whether contractual or not, which is considered commercial; and (4) a party to the agreement is not an American citizen, or that the commercial relationship has some reasonable relation with one or more foreign states. Ruiz, 754 F.Supp.2d at 1330 (citing Bautista, 396 F.3d at 1295 n.7). For the Convention to apply, there must be a valid agreement in writing between the parties to arbitrate the dispute in question. See Bautista v. Star Cruises, 286 F.Supp.2d 1352, 1362 (S.D. Fla. 2003). The removing party “has the burden of proving ... the existence of an agreement in writing within the meaning of the Convention to arbitrate the dispute at issue.” Azevedo v. Carnival Corp., No. 08-20518-CIV, 2008 WL 2261195, at *5 (S.D. Fla. May 30, 2008). Pursuant to the Convention, each signatory must “recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.” Hodgson v. Royal Caribbean Cruises, Ltd., 706 F.Supp.2d 1248, 1253 (S.D. Fla. 2009) (citing Convention art. 11(1)). “The term ‘agreement in writing’ shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.” Id. (citing Convention art. 11(2). The Court finds that this case should be remanded because Defendants failed to meet their burden in proving the first jurisdictional element, that is, a “valid agreement in 'writing within meaning of the Convention.” It is undisputed that the Agreements expired, by their own express terms, on August 1, 2015. The Agreements specifically provide that the terms, which include the arbitration provisions, can only be extended in writing. D.E. 1-3 ¶ 18.2; D.E. 1-4 ¶22.2. It is also undisputed that neither provision expressly provided for the survival of the arbitration clauses. In fact, there is no written agreement at all between Plaintiff and these named Defendants to arbitrate disputes in Denmark or elsewhere outside the United States. Lastly, as Plaintiff argues, Plaintiffs claims in this action are neither based on, nor do they arise from, the expired MDA or the MFA between Plaintiff and Pandora Denmark; rather, based on this Court’s review of the Complaint, Plaintiffs claims are premised upon the separate verbal agreements and understandings entered into between Plaintiff and Defendant, Pandora Americas, and the breaches that occurred subsequent to the MDA and MFA’s expiration.

4018648-13664

MEMORANDUM DECISION SUSAN V. KELLEY, Chief Judge. The issue, one of first impression, is what happens when a veteran’s 540-day exclusion from the means test expires during a Chapter 7 bankruptcy ease. The U.S. Trustee claims that the expiration of the 540-day period revives the obligation to complete the means test form. The Debtors contend that as long as they filed bankruptcy before the 540-day exclusion period ended, they are exempt from means testing. The facts are not disputed. Thomas and Natasha Rowell (the “Debtors”) filed this Chapter 7 case on April 30, 2014. Their debts are primarily consumer debts. Thomas Rowell is a psychiatrist and a reservist in the United States Army; Natasha Rowell is a high school principal. Thomas Rowell was called to active duty on July 31, 2012, and released from active duty on November 24, 2012. The 540-day period following his release from active duty expired on May 18, 2014, about two weeks after the Debtors filed their petition. The U.S. Trustee maintains that 11 U.S.C. § 707(b)(2)(D)(ii) and Interim Bankruptcy Rule 1007~I(n) require the Debtors to complete and file a means test form after the expiration of the exclusion period. The Debtors disagree, contending that the Interim Rule conflicts with the Bankruptcy Code, and that the statute controls. According to the Debtors, § 707(b)(2)(D)(ii) establishes a “safe harbor” so that when a debtor who is exempt from means testing files a Chapter 7 petition, the court cannot dismiss the debtor’s case under any form of means testing, even if the 540-day period ends during the case. The Court asked the parties to file briefs solely on the issue of the effect of the expiration of the 540-day period. If the Court accepts the Debtors’ position, the Court will hold a hearing to consider the U.S. Trustee’s alternate claim that the Debtors’ case should be dismissed under 11 U.S.C. § 707(b)(3) as abusive under the totality of the circumstances. If the Court rules for the U.S. Trustee, then the onus will be on the Debtors to rebut the presumption of abuse by demonstrating special circumstances under § 707(b)(2)(B). The background necessary to analyze this issue begins in 2005 when Congress rewrote § 707(b) of the Bankruptcy Code as part of the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”). Previously, § 707(b) required a showing of “substantial abuse” to justify dismissal of a Chapter 7 case, and a presumption existed in favor of the debtor. BAPCPA repealed the “substantial” qualifier of “abuse” and changed the presumption favoring the debtor by adding a “means test” under which a Chapter 7 case can be found presumptively abusive. The debtor completes Form B22A to show the means test calculations. Under the means test, if the debtor’s disposable income for the six months prior to the petition exceeds the statutory threshold, then the case is presumptively abusive and may be dismissed unless the debtor can show “special circumstances.” 11 U.S.C. § 707(b)(2)(A)-(B). BAPCPA also added § 707(b)(3), which authorizes the dismissal of a debtor’s case as abusive even when the means test does not create a presumption or the presumption is rebutted, giving the bankruptcy court the discretion to dismiss a case as abusive if there is “bad faith” or the “totality of the circumstances ... demonstrates abuse.” McDow v. Dudley, 662 F.3d 284, 288 (4th Cir.2011). Recognizing that BAPCPA made it more difficult for individuals to qualify for Chapter 7 bankruptcy relief and to reward the National Guard members and Reservists for their service, Congress enacted the National Guard and Reservists Debt Relief Act of 2008, Pub.L. No. 110438, 122 Stat.. 5000 (the “Act”). The Act became effec tive December 19, 2008, and was scheduled to expire in 2011. In supporting a Bill to extend it, Congressman Steve Cohen explained the basic premise behind the Act: “The National Guard and Reservist Debt Relief Act of 2008 created an exception to the means test’s presumption for members of the National Guard and Reserves who, after September 11, 2001, served on active duty or in a homeland defense activity for at least 90 days. The exception remains available for 540 days after the service-member leaves the military.” 157 Cong. Rec. H7906 (daily ed. Nov. 29, 2011) (statement of Rep. Steve Cohen). The Act was extended and now is due to sunset on December 19, 2015. See § 4(b), 122 Stat. 5000, as amended by the National Guard and Reservists Debt Relief Act of 2011, Pub.L. No. 112-64,125 Stat. 766. The Act was codified as Bankruptcy Code § 707(b)(2)(D)(ii) and in pertinent part provides: Subparagraphs (A) through (C) shall not apply, and the court may not dismiss or convert a case based on any form of means testing, if— (ii) with respect to the debtor, while the debtor is— (I) on, and during the 540-day period beginning immediately after the debtor is released from, a period of active duty ... of not less than 90 days. The issue here is whether the court may dismiss a debtor’s case if the 540-day period expires during the Chapter 7 case. The Debtors construe the language “the court may not dismiss a case based on any form of means testing ... during the 540-day period ... after the debtor is released from ... active duty” to mean that as long as the petition is filed during the 540-day period, the court may not dismiss the case. The U.S. Trustee argues that .the exemption is temporary — if it expires during the case, the Debtors must file Form B22A and subject their finances to the scrutiny of the means test. To resolve a dispute over the meaning of a statute, the court begins with the language of the statute itself. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). The Supreme Court has instructed that, “when the statute’s language is plain, the sole function of the court — at least where the disposition required by the text is not absurd — is to enforce it according to its terms.” Lamie v. United States Tr., 540 U.S. 526, 533, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004); Ron Pair, 489 U.S. at 241, 109 S.Ct. 1026. This proposition derives from the understanding “that Congress ‘says in a statute what it means and means in a statute what it says there.’ ” Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000). Here, the statute says that the means test shall not apply to a debtor who is on active duty and during the 540-day period immediately after the debtor is released from active duty. The U.S. Trustee’s reading of the statute is bolstered by an Interim Bankruptcy Rule. The Committee Comment to Interim Rule 1007-1 states: “The new exclusion from means testing applies in a given case only for the period provided in the statute (i.e., while the debtor is on active duty and for 540 days thereafter). Accordingly, the amended form and Interim Rule provide for a delayed means test form filing requirement in appropriate cases, as well as for notice of that requirement.” The rule is “interim” because of the sunset provision in the Act; however, most bankruptcy courts adopted the rule as a local rule or standing order, and Form B22A also was revised to reflect the rule. In this District, Interim Rule 1007-1 was adopted in General Order # 3 issued on December 19, 2008. See http://www.wieb.uscourts.gov/ index.php/orders-rules/rules/generalorders (last visited Jan. 7, 2015). Interim Rule 1007 — I(n)(l) provides: An individual debtor who is temporarily-excluded from means testing pursuant to § 707(b)(2)(D)(ii) of the Code shall file any statement and calculations required by subdivision (b)(4) no later than 14 days after the expiration of the temporary exclusion if the expiration occurs within the time specified by Rule 1017(e) for filing a motion pursuant to § 707(b)(2). Rule 1017(e) states that, except as provided in § 704(b)(2), a motion to dismiss for abuse must be filed within 60 days of the first date set for the meeting of creditors. Section 704(b)(2) shortens this deadline for the U.S. Trustee in cases where the motion is based on the presumption of abuse. Under § 704(b)(1), within ten days of the meeting of creditors, the U.S. Trustee must file a statement of whether the debtor’s case is presumed an abuse. Then under § 704(b)(2), the U.S. Trustee has 30 days from the filing of the statement to file the motion to dismiss. In this case, the meeting of creditors was held on June 26, 2014. Ten days later was Sunday, July 6, 2014, making the U.S. Trustee’s statement due on July 7, 2014. Thirty days from that date, and the deadline for the U.S. Trustee to file a motion to dismiss, was August 6, 2014. Using the longer 60-day deadline of Rule 1017 would extend the deadline for the U.S. Trustee to file a motion to dismiss in the Debtors’ case to August 27, 2014. In effect, Rule 1007-I(n) and the U.S. Trustee’s position deprive the Debtors of between 98 and 120 days of the 540-day means test exemption: that is the difference between the date of the Debtors’ petition and the potential last day for filing a motion to dismiss. To qualify for the exemption, the Debtors would have had to file bankruptcy at least 98 days, and possibly up to 120 days, before their 540-day exemption period expired. And, since the motion to dismiss deadline is tied to the date of the meeting of creditors — a date that varies from case to case — there is no way for a debtor to know for certain whether the 540-day exemption period will expire prior to the deadline, for the U.S. Trustee to file a motion. Under Bankruptcy Rule 2003(a), the meeting of creditors in a Chapter 7 case must be held no fewer than 21 and no more than 40 days after the order for relief. However, if the place of the meeting is in a location not regularly staffed by the U.S. Trustee, the meeting may be held no more than 60 days after the order for relief. The Debtors’ meeting of creditors was held in Green Bay at a location not regularly staffed by the U.S. Trustee. Their meeting occurred on June 26, 2014, 57 days after the petition. But a debtor who filed a Chapter 7 petition the same day, with a meeting of creditors at the U.S. Trustee-staffed location in Milwaukee, could have had his meeting of creditors as early as May 21, 2014. The U.S. Trustee’s deadline to file a motion to dismiss (and cut off the debtor’s right to claim the exemption) would be June 30, 2014, over 30 days before the Debtors’ exemption expired. Stated another way, if Thomas Rowell and another reservist were released from active duty on the very same day and decided to file Chapter 7 bankruptcy, it would be extremely unlikely that their exemptions under the Act would be applied the same way, because of the variations in when their meetings of creditors could be scheduled. The same release date and the same 540-day period could result in one reservist obtaining the benefit of the exemption while the other did not, based on the timing of the meeting of creditors. Since the meeting of creditors is set only after the case is filed, if a debtor visited a bankruptcy attorney with less than '420 days left on his or her exemption period, there would be no way the attorney could safely predict whether the remainder of the period would expire before the deadline for the U.S. Trustee to file a motion to dismiss. In this way, the Interim Rule and the U.S. Trustee’s reading of § 707(b)(2)(D)(ii) contradict the Act’s specific grant of a 540-day exemption period. The Debtors’ interpretation is supported by the Government Accounting Office (the “GAO”). In § 3 of the Act, Congress mandated that the GAO provide information on the use and effects of the provisions of the Act and asked the GAO to determine whether there were any indications of abuse or potential misuse of the exemption. In its report, the GAO summarized, “The [Act] exempts qualifying members of the National Guard and Reserve Components from the means test process when they file a petition for Chapter 7 bankruptcy relief.” U.S. Gen. Accounting Office, GAO-10-1014R, Military Personnel: Observations on the Use and Effects of the National Guard and Reservists Debt Relief Act of 2008 8 (2010). In explaining the 540-day exclusion, the GAO stated: “Servicemembers who have completed the minimum 90-day period of service and are no longer serving have a little less than 1.5 years (540 days) after they have completed the minimum 90-day period of service to claim the means test exemption. Service-members who completed their service periods dating as far back as June 28, 2007, may be eligible for the exemption if they filed for bankruptcy relief on December 19, 2008.” Id. at 10. December 19, 2008 is 540 days from June 28, 2007, showing that the GAO considered the petition date as the last day on which the 540-day period could expire. Obviously, if the U.S. Trustee’s interpretation is correct, the debtor who filed on December 19, 2008, would immediately lose the protection of the exemption on December 20, 2008. See also id. at 11 (“Servicemembers have up to 540 days after completing the minimum 90-day period of active duty service or homeland defense activity to claim the means test exemption.”). The GAO’s and the Debtors’ reading of this statute is correct. The Debtors are exempt from the means test because they filed their petition within 540 days of Thomas Rowell’s release from active duty. As shown above, the U.S. Trustee’s interpretation results in the effective loss of an unknown number of days of the exemption period, due to the vagaries of when the first meeting of creditors will be scheduled.

6051142-12498

BENTON, Circuit Judge. Marty L. Luke moved to set aside his conviction and sentence under 28 U.S.C. § 2255. The district court denied the motion. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. I Police stopped Luke while he was riding in his wife’s car near his parked truck. They suspected him of involvement in several recent burglaries based on: (1) eyewitnesses identifying him as the driver of a similar truck near the burglaries, (2) the recovery of stolen jewelry in Luke’s brother’s house during a planned search, and (3) observing Luke and his brother pawn jewelry similar to what was stolen. An officer testified that Luke and his wife gave permission to search the car, where police found jewelry matching the stolen items. Police impounded the car and drove Luke to his truck. An officer saw a box of ammunition on the front seat and asked to search the truck. Luke consented. The search revealed a pistol matching the one stolen in another recent robbery. Police arrested and searched Luke, finding more ammunition in his pocket. After his arrest, Luke was taken to the hospital to treat a mild concussion sustained earlier that day. He claims to have no memory of the day’s events. Luke waived his right to file pretrial motions, including any motion to suppress evidence. His attorney felt that the evidence was obtained legally and that a motion was meritless since Luke’s sentence would be the same if any of the pistol/ammunition evidence was admitted. Before waiving his right to file pretrial motions, Luke asked his attorney for a second opinion; his attorney contacted the attorney in Luke’s state case but received no response. Luke pled guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He admitted that everything in the plea agreement was true and signed it. In the agreement, Luke admitted consenting to the search of his truck, and possessing the pistol and the ammunition. The court sentenced him to the statutory minimum of 180 months’ imprisonment. Luke contends he asked his attorney to appeal his case, but his memory is unclear. He does recall that his brother advised him to request an appeal, and “the guy doing the paperwork kept asking.” Luke’s attorney does not recall such a request, and there is no documentation of it. At the time of his plea and sentence, Luke was taking several prescribed medications for bipolar disorder and schizophrenia. His attorney knew only that he was on prescribed medication. They discussed whether he should have a competency evaluation, but the attorney testified that Luke made a knowing choice not to seek it. Two doctors evaluated Luke after he filed his § 2255 motion. Dr. C. Robert Cloninger expressed reservations about Luke’s capacity to assist in his defense but declined to conclude that Luke was incompetent. Dr. Tanya Cunic, however, testified that Luke was competent at all times. She also found that Luke’s responses during testing were similar' to patients who faked bad answers and exaggerated symptoms. Both doctors believed that the symptoms of Luke’s schizophrenia did not affect his ability to communicate or understand and that he was fully capable of understanding right and wrong. The district court ruled that Luke had no meritorious argument for suppressing evidence and that his attorney properly consulted and advised Luke on sound alternative strategies. The court also found no credible evidence that Luke requested an appeal. Evaluating both doctors’ opinions, the court found that Luke had been competent to enter his guilty plea, and Luke was not deprived of effective counsel. II This court reviews the denial of a § 2255 motion de novo. Hodge v. United States, 602 F.3d 935, 937 (8th Cir.), cert. denied, — U.S.-, 131 S.Ct. 334, 178 L.Ed.2d 217 (2010). This court reviews with deference the “underlying findings of fact for clear error,” including credibility determinations. Tinajero-Ortiz v. United States, 635 F.3d 1100, 1103 (8th Cir.), cert. denied, — U.S.-, 132 S.Ct. 315, 181 L.Ed.2d 194 (2011), quoting United States v. Regenos, 405 F.3d 691, 692-93 (8th Cir. 2005); Yodprasit v. United States, 294 F.3d 966, 969 (8th Cir.2002). A finding is clearly erroneous when evidence in its entirety creates “a definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Questions of ineffective legal assistance are mixed questions of law and fact. Scott v. United States, 473 F.3d 1262, 1263 (8th Cir.2007). A criminal defendant has the right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052. A defendant must prove that (1) counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052; see Williams v. United States, 452 F.3d 1009, 1012 (8th Cir.2006). A court may first examine the prejudice from the alleged deficiencies before examining the deficiencies themselves. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052. To establish prejudice, the defendant must demonstrate a reasonable probability that the result of the proceeding would have been different, but for counsel’s deficiency. Id. at 694, 104 S.Ct. 2052. A reasonable probability sufficiently undermines confidence in the outcome. Id. There is a “strong presumption that counsel’s conduct falls within the wide range of professionally reasonable assistance.” Id. at 689, 104 S.Ct. 2052. Evaluating the alleged deficiency, a court should not allow hindsight to affect its analysis of whether counsel acted reasonably before and during trial. See Hood v. United States, 342 F.3d 861, 863 (8th Cir. 2003), quoting Fields v. United States, 201 F.3d 1025, 1027 (8th Cir.2000) (considering counsel’s conduct during representation and avoiding judgement based on hindsight); see also Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In this case, Luke claims his counsel was ineffective by failing to (1) move to suppress evidence, (2) file an appeal when asked to do so, and (3) prop erly examine Luke’s competence to assist in his own defense. Ill Luke waived his right to move to suppress evidence. His counsel recommended this strategy because he believed the evidence against him was obtained properly. Luke now contends that his counsel was ineffective for failing to file a motion to suppress evidence. When a defendant claims that counsel was ineffective by failing to litigate a Fourth Amendment challenge to a search and seizure, the defendant must prove that the claim is meritorious. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); see United States v. Johnson, 707 F.2d 317, 320 (8th Cir.1983), citing United States v. Easter, 539 F.2d 663 (8th Cir.1976) (“The failure to make a motion to suppress what is essentially the only evidence against a defendant can be sufficient to establish lack of diligence on the part of the attorney if the motion would have succeeded.”). Luke believes that police illegally obtained the jewelry from the car, the pistol and ammunition from his truck, and the ammunition from his pocket. He first attacks the initial stop, claiming police did not have probable cause to pull him over. “Probable cause to make a warrantless arrest exists when, considering all the circumstances, police have trustworthy information that would lead a prudent person to believe that the suspect had committed or was committing a crime.” United States v. Parish, 606 F.3d 480, 486 (8th Cir.2010), quoting United States v. Velazquez-Rivera, 366 F.3d 661, 664 (8th Cir.2004) (internal quotation marks omitted). See United States v. Houston, 548 F.3d 1151, 1153 (8th Cir. 2008), quoting United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983) (“a law enforcement officer has reasonable suspicion when the officer is aware of ‘particularized, objective facts which taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed’ ”). Police had eye-witness accounts placing Luke and his truck close to robberies and had linked several stolen items to him. Even without a warrant, police had probable cause for the initial stop. Luke next argues that the search of his truck was improper because he does not remember consenting. This argument is irrelevant because police saw ammunition in plain view through the truck’s window. True, to justify a warrantless seizure, “not only must the item be in plain view; its incriminating character must also be immediately apparent.” Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), quoting Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (internal quotation marks omitted). Here, the police knew that Luke was a convicted felon, and that it was illegal for him to possess any firearms or ammunition under 18 U.S.C. § 924(e). A box of ammunition is a readily identifiable “single-purpose container” whose distinctive configuration allows police to infer its contents. United States v. Banks, 514 F.3d 769, 774 (8th Cir.2008) (noting that “a gun case is the very model of a single-purpose container”). When the police saw the labeled box, they rationally assumed ammunition would be inside. The box’s incriminating character as unlawfully possessed ammunition was immediately apparent, giving probable cause to search the truck. The seizure of the ammunition and pistol from inside the truck was proper. After arresting Luke, police searched him and found ammunition in his pocket. This search was valid as incident to his arrest. See Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.”). Luke’s counsel was not ineffective because any motion to suppress evidence would not have succeeded. IV Luke argues that he requested an appeal and that his counsel was ineffective for failing to file it. The district court found “no credible evidence” that Luke requested an appeal. This court must determine whether this finding was clearly erroneous. Tinajero-Ortiz, 635 F.3d at 1103. Failure to file an appeal at a client’s request is ineffective assistance of counsel for the purposes of § 2255. Yodprasit, 294 F.3d at 969, quoting Estes v. United States, 883 F.2d 645, 648 (8th Cir.1989). While actual prejudice is not required, the attorney must have been aware of the client’s desire to appeal. Id. “A bare assertion by the petitioner that he made a request is not by itself sufficient to support a grant of relief, if evidence that the fact-finder finds to be more credible indicates the contrary proposition.” Id., quoting Barger v. United States, 204 F.3d 1180, 1182 (8th Cir.2000). Luke testified that he has only a “slight memory” of telling his counsel he wanted to appeal, but assumes he made the request because his brother had “drove that into” him and “the guy that did the paperwork kept asking.” Luke cannot remember anything immediately before or after allegedly requesting an appeal, and does not remember most of the events that occurred in his case including his initial appearance, pretrial motions, guilty plea hearing, or sentencing hearing. To the contrary, Luke’s counsel testified that Luke did not ask for a meeting after sentencing, let alone request an appeal, and that if Luke had made such a request, he would have filed an appeal. No emails, letters, or any other communication documents that Luke contacted his counsel to request an appeal. The district court did not clearly err in finding Luke not credible. See Sanders v. United States, 341 F.3d 720, 722 (8th Cir.2003) (a defendant “must present some credible, non-conclusory evidence”). Luke’s counsel was not ineffective for failing to file an appeal. V

1938948-27438

REAVLEY, Circuit Judge: This civil rights action was brought against prison officials by two federal prisoners who had been disciplined for engaging in “conduct which disrupts the orderly running of the institution” by signing a petition complaining of discrimination against black inmates. The matter was referred to a United States magistrate, who conducted a day-long trial and recommended that relief be denied. The district court adopted the magistrate’s report over the plaintiffs’ objection and dismissed the action. The inmates raise two alternative arguments that discipline was unconstitutionally imposed: first, that their, participation in the petition was protected expression under the First Amendment; and second, that their right to due process was infringed because they were disciplined for conduct they could not have known was prohibited and because the procedure afforded them was infirm in several respects. We hold that the discipline imposed in this case did not unconstitutionally infringe the inmates’ First Amendment freedoms, but that their right to due process was violated. We reverse and remand for further proceedings. I. On July 14, 1980, a petition signed by 36 black inmates at the Federal Correctional Institute in Texarkana, Texas was sent to the warden of the prison, the Texarkana Gazette, and the American Civil Liberties Union (ACLU). The text of the petition was “gentle,” alleging that black inmates at Texarkana were not given the same opportunity as white inmates to participate in several programs and proposing that “avenues and strategies” be developed to solve the problem. The list of signatures corresponded either closely or exactly to the membership of a loosely organized but officially recognized group of black inmates known as the Black Awareness Club. Appellant Roy Dancy's name appeared at the top of the list; that of appellant Willie Adams was number ten. Warden Gunnell responded to the petition immediately by ordering that the three inmates heading the list — including Dancy — be placed in administrative segregation pending an investigation. He assigned his staff to investigate those allegations that could quickly be checked; in particular, they determined that blacks were fairly represented among those holding desirable jobs in the prison industry. Prison officials questioned the three inmates and other signers of the petition, and Adams was placed in administrative segregation a few hours later. Administrative detention orders for both Dancy and Adams reflect as the reason for their detention that each “signed an illegal petition.” Neither inmate was told the reason for his segregation at the time he was locked up, but each received an incident report about an hour later. Both reports charged violations of the Prison Rule 399, prohibiting “conduct which disrupts the orderly running of the Institution," and both described that conduct as signing an “illegal petition.” Adams was released later that afternoon, but Dancy remained in administrative segregation. A second incident report, filed two days later, charged Adams with lying to a staff member and with disruptive conduct. On July 10, 1980, he had allegedly asked an employee in the prison’s education complex, Robert Russell, to photocopy a list of names he said was the membership of the Black Awareness Club. Russell learned of the discrimination petition shortly after it was presented to the warden a few days later, and filed the second incident report against Adams on July 16, believing that the list Adams had submitted for photocopying was actually the first page of the petition. Adams was placed in administrative segregation. The unit discipline committee (UDC) met that same day, July 16, to consider the first two reports — those charging Adams and Dancy with signing the petition. Noting that both inmates admitted signing the petition, the committee found that each had violated Prison Rule 399, “conduct which disrupts.” The rules did not more specifically prohibit signing or circulating petitions. Both violations were referred to the institution discipline committee (IDC), and both inmates remained in administrative segregation pending action by that committee. On July 18, the UDC considered the second report against Adams and found that he had violated Prison Rules 313, “lying or providing a false statement to a staff member,” and 299, a higher severity provision identical in its terms to the disruptive conduct prohibition in Rule 399. The UDC referred this second report to the IDC with the recommendation that Adams forfeit statutory good time. On July 17, the charge against Dancy was brought before a three-member panel of the IDC chaired by Captain Horace Min-ton and on which L.F. Worthy was a member. Dancy was the only witness that appeared at the hearing, but Minton testified before the magistrate that the IDC also “had inmate information ... that led [it] to believe that Mr. Adams was the author of the petition, and also that Mr. Dancy was the individual who circulated the petition and solicited additional signatures.” Dancy admitted signing the petition but denied the charge that he had circulated it. The section of the IDC’s report for “specific evidence relied upon” reads in full: “inmate’s admission and supportive evidence (your signature on the petition).” The committee forfeited 30 days of Dancy’s statutory good time, placed him in disciplinary segregation for 15 days, and recommended a disciplinary transfer. It explained the sanction in its report by saying that Dancy had been “party to an attempt to illegally organize a group protest;” Dancy was never charged with violating the Prison Rule against group protests. See note 3, supra. All pending charges against Adams came before another IDC panel on July 22; Min-ton again was chairman and Worthy again a member. According to Adams, he objected to Worthy’s participation on the ground that Worthy had denied his application for a job in the prison business office in March 1980 and that Adams had unsuccessfully pursued his administrative appeal from the denial, charging Worthy with race discrimination. Worthy testified that Adams never challenged his presence on the tribunal. The hearing proceeded, with Adams the only witness. According to the IDC’s report, Adams admitted signing the petition, but denied any other involvement. He also stated that the list he submitted for photocopying was of the Black Awareness Club’s membership and that Russell, the charging official, never actually saw the document— Russell declined to do the photocopying on July 10 because it was not his job, and another person ran the copies later that day. The committee found that Adams had committed a high severity violation, and it gave the following as the “specific evidence” it “relied on to support [its] findings”: “You admit to signing the petition and supporting the contents of the petition. Based upon Mr. Russell’s account and subsequent investigation clearly supports (sic) that you lied and use (sic) equipment to duplicate a list of names to be attached to the petition.” Officer Minton explained to the magistrate, however, that the committee had other evidence, not disclosed at the hearing, that Adams was guilty of the charges. Adams suffered the same punishment as Dancy; he was also “removed from mandatory goodtime.” See 28 C.F.R. § 541.13 (table 4, § 1(F)). Adams and Dancy filed this action just over a week later, on August 5, 1980. Plaintiffs alleged that Warden Gunnell, Associate Warden Charles Gaugler, and Captain Minton violated their First Amendment rights by disciplining them for signing a petition. They also alleged a denial of due process in several respects, notably, that they had been charged under a “catchall” disruptive-conduct rule for actions they could not have known to be prohibited. They sought by preliminary injunction to enjoin enforcement of the general disruptive conduct prohibitions against them and to be relieved of the sanctions imposed by the IDC. They also sought damages. The district court referred the matter to the magistrate on September 12, 1980. Defendants answered the complaint a month later, denying that their conduct infringed constitutional rights and noting that Dancy and Adams had by then already been transferred. Their only substantial affirmative defense was that the plaintiffs had not exhausted available administrative remedies; nowhere did they allege that they were immune from financial liability because their actions had been taken in good faith. The case was tried to the magistrate on March 16, 1981. In her opening statement, counsel for the defendants noted that defendants were sued in both their individual and official capacities and argued that the plaintiffs bore the burden of proving that the defendants “did’something so far outside of their responsibilities, so far outside of the capacity of their job[s], that there was no reasonable belief [that] what they were doing was within the scope of their appointment.” This is the first time the question of good faith immunity was even arguably raised. • The plaintiffs testified and presented as exhibits, among other documents, the Prison Rules and the various orders, notices, and reports surrounding their discipline. Both Adams and Dancy denied writing or circulating the petition; each found it in his cell, read and signed it, and left it where he had found it. Dancy testified that he had signed two petitions at Texarkana before this one, one complaining about the food and the other about the commissary’s lack of cosmetic products for black inmates, and that in neither case was disciplinary action taken against him. Adams described several incidents during his stay at Texarkana that led him to believe that, the administration discriminated against black inmates. Both said they signed the petition because they shared the grievance it expressed. Warden Gunnell testified that he believed upon some investigation that the petition’s charge of race discrimination was false and that it was circulated in an effort to disrupt the prison. He had seen two other inmate petitions in his career, and both had involved efforts by some inmates to coerce others into signing. Fearing the same disruption, he responded to the petition by locking up the first three inmates on the- list of signatures, investigating the percentage of blacks in prison industry jobs, and directing that all inmates who had signed the petition be interviewed. Prison officials conducted the interviews and submitted their reports to Associate Warden Charles Gaugler detailing some 26 inmate responses. Those reports, with the inmate interviewees’ names excised, were admitted by the magistrate over the plaintiffs’ hearsay objection. Finally, the warden admitted on cross examination that the prison had no rule specifically prohibiting petitions. Minton testified that Adams and Dancy were the only witnesses before the IDC panels, but that the IDC had “inmate information” gathered during disciplinary hearings concerning other signers of the petition that Adams wrote the petition and Dancy circulated it. He stated his belief that the source or details of this information ought not be revealed to the inmates at Texarkana. The IDC report forms contain a blank to be checked if the committee considered confidential information not provided to the inmate — Adams’ July 22 report indicates that such information was before his panel; Dancy’s report, filed five days earlier, does not. The parties submitted briefs shortly after the trial. Plaintiffs argued several jurisdictional points, but they specifically noted that the defendants had not raised and were therefore barred from asserting the defense of good faith immunity. They cited Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), which placed on defendant officials the burden of pleading good faith immunity as an affirmative defense. The defendants’ post-trial brief also made several arguments, among the last of which was the plaintiffs’ failure to prove any “bad faith oppressive motive” on their part. Plaintiffs challenged this uncertain assertion of good faith immunity in their responsive brief; citing Gomez, they again argued that defendants had waived the immunity defense by failing to plead it. Over two months later, on June 1, 1981, plaintiffs moved to supplement the record, explaining that absent immediate ruling by the magistrate they would both suffer prolonged incarceration because the defendants’ assertedly unconstitutional acts deprived them of 30 days statutory good time. They also repeated their Gomez contention that the defendants had waived the good faith immunity defense. The magistrate issued his report July 13, 1981. He recommended dismissal of the complaint, finding the circumstances surrounding the petition suspect because the inmates had not first presented their grievance to the prison administration before involving the ACLU and the local media. He held that, while the plaintiffs had adequately exhausted their post-discipline administrative remedies, the allegations of race discrimination in the petition were not pursued through the prison’s grievance procedure. The inmates’ decision to submit the petition to the ACLU and the Texarkana Gazette led the magistrate “to the conclusion that [the] petition may have been meant for disruptive purposes rather than for alleviation of actual grievances.” Thus, although he made no finding that either plaintiff wrote or circulated the petition, the magistrate determined that the defendants had acted reasonably in punishing Adams and Dancy for their participation in the petition. Finally, he found no due process violation in the disciplinary committee procedures; the prison’s lack of a rule against petitions is not mentioned in the report. The report is also silent on the question of immunity. Plaintiffs filed detailed objections to the magistrate’s report, asserting among other things that any findings on the question of good faith immunity were irrelevant because the defense had not been raised. The district court adopted the magistrate’s findings and conclusions over objection and dismissed the case. II. First Amendment “[Cjhallenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed- in terms of the legitimate policies and goals of the corrections system....” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). Such restrictions must further “one or more of the substantial governmental interests of security, order, and rehabilitation.” Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). We defer in this regard to the professional judgment of prison officials “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations ....” Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977) (quoting Pell v. Procunier, 417 U.S. at 827, 94 S.Ct. at 2806). Adams and Dancy were not disciplined for their individual correspondence or communication with persons outside the prison; their access to the mails remained unencumbered. Cf. Procunier v. Martinez, supra; Pell v. Procunier, supra; Guajardo v. Estelle, 580 F.2d 748 (5th Cir.1978). Nor were they punished for expressing their individual grievances to the prison administration; the prison grievance procedure remained available. Instead, they were punished for participating in a petition signed by a large number of inmates. Their freedoms of individual expression and petition were therefore touched, but not seriously infringed. See Jones, 433 U.S. at 128, 97 S.Ct. at 2539. As in Jones, the freedom at stake' in this case more closely concerns association than expression. The major justification asserted by the defendants for punishing Adams and Dancy’s participation in the petition was their fear of disruption and violence. Warden Gunnell explained quite simply that the circulation of petitions among prison inmates raised the danger that those supporting the petition would coerce other prisoners — either subtly or violently — into signing the document. Although the record contains other, constitutionally impermissible explanations for the sanctions imposed on these plaintiffs, we cannot conclude that the warden’s fear was unreasonable. Indeed, it closely parallels that recognized in Jones to justify a prison rule against inmate-to-inmate solicitation of membership in a prisoners’ labor union. Like the union in Jones, the petition in this case did not actually lead to violence or a disruption of prison operations, but that happy fact does not render the warden’s initial fear groundless. See Jones, 433 U.S. at 127 n. 5, 97 S.Ct. at 2539 n. 5; see also Edwards v. White, 501 F.Supp. 8, 11-13 (M.D.Pa.1979), aff'd mem., 633 F.2d 209 (3d Cir.1980). We therefore decline to second-guess the substance of the defendant prison officials’ decision to punish participation in the petition. The procedure surrounding that punishment, notably the absence of any rule against petitions, presents a different problem. III. Due Process Adams and Dancy argue that their rights to due process were infringed in several respects. Their primary argument is that the prison's catch-all “disruptive conduct” rule was unconstitutionally vague as applied to their conduct; they also raise various procedural flaws in their disciplinary hearings. A. The Protected Interest The defendants do not contest that the federal prison regulations governing disciplinary segregation and loss of good time credit extend to federal prisoners a protected liberty interest in remaining in the general inmate population and in retaining statutory good time credit. 28 C.F.R. §§ 541.10-.23 (1983). See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); McCrae v. Hankins, 720 F.2d 863 (5th Cir.1983). It is quite clear, however, that neither statute nor regulation creates a protected right not to be transferred from prison to prison within the federal system. 18 U.S.C. § 4082(b) (1976); see Olim v. Wakinekona, — U.S. -, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); Meachum v. Fano, 427 U.S. 215, 227-28, 96 S.Ct. 2532, 2539-40, 49 L.Ed.2d 451 (1976). Such violations of due process as occurred here therefore arise only from the sanctions of disciplinary segregation and deprivation of good time credit. B. Notice of Prohibition “[Bjecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). See Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). We are not called upon in this case to consider the vagueness of the “conduct which disrupts” rule on its face. Cf. Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Davis v. Williams, 617 F.2d 1100 (5th Cir.), cert. denied, 449 U.S. 937, 101 S.Ct. 336, 66 L.Ed.2d 160 (1980). We therefore need not determine whether it is unconstitutionally vague in all its possible applications, nor need we decide whether in some application it might inhibit the exercise of constitutionally protected rights. Cf. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497-499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982); United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319-20, 46 L.Ed.2d 228 (1975). Instead, we must consider whether the catch-all rule is impermissibly vague as applied to the conduct of these plaintiffs — that is, whether they had fair warning that their conduct was proscribed. The record reveals absolutely no circumstance that might have given Adams or Dancy reason to suspect that writing, signing, or even circulating a petition among the inmates at Texarkana would subject them to punishment. There is no evidence that any inmate had ever before been punished in connection with a petition; quite to the contrary, Dancy testified that he had signed two petitions before at Texarkana without sanction or other adverse consequence. At least as far as Dancy was concerned, then, his conduct in connection with this petition “was virtually identical to conduct previously tolerated.” Waters v. Peterson, 495 F.2d 91, 100 (D.C.Cir.1973), cited in Shawgo v. Spradlin, 701 F.2d 470, 478 (5th Cir.1983). . Nor is there anything about signing or circulating a petition itself that might suggest a prohibition. Despite the defendants’ assertions, the record contains nothing to indicate that Adams or Dancy coerced or threatened other inmates in connection with the petition. The most that can be said is that the IDC had evidence not present in our record that the plaintiffs had a part in writing and circulating the petition. Unlike otherwise illegal conduct or acts of clear disobedience or insubordination, such participation in a petition “does not carry with it its own warning of wrongdoing.” Shawgo, 701 F.2d at 478. Perhaps these inmates could have anticipated that the prison administration might disagree with the contents of the petition or resent its dissemination outside the institution. They could not have known, however, that serious disciplinary sanctions would be imposed for their conduct. We are mindful that this case arose in a prison, where problems of administration in general and security in particular range from difficult to nearly impossible. “[OJne cannot automatically apply procedural rules designed for free citizens in an open society, ... to the very different situation presented” by a prison disciplinary proceeding. Wolff v. McDonnell, 418 U.S. 539, 560, 94 S.Ct. 2963, 2977, 41 L.Ed.2d 935 (1974). Balanced against the needs of the institution, however, is the fundamental requirement that persons be able somehow to avoid conduct that will lead to severe sanction. Because “legalistic wrangling” over the meaning of prison rules “may visibly undermine the [prison] administration’s position of total authority,” federal courts have deferred to the interpretation of those rules by prison authorities “unless fair notice was clearly lacking.” E.g., Hadden v. Howard, 713 F.2d 1003, 1008 (3d Cir.1983) (quoting Meyers v. Alldredge, 492 F.2d 296, 311 (3d Cir.1974)). As we have explained, fair notice of a rule against petitions was quite clearly lacking at Texarkana — there simply was no such rule. These inmates may initially have been isolated to prevent the disruption feared by the defendants; we express no opinion about the propriety of such protective steps. Cf. Hewitt v. Helms, 103 S.Ct. at 873-74. But basic due process was violated by the eventual imposition of severe punishment for conduct no inmate could have known was against prison rules. C. Adams’ Procedural Complaints Adams was disciplined not only for his involvement in the petition, but for lying to a prison official as well. We therefore must consider his several challenges to the procedure afforded him before the disciplinary committees. First, he argues that he was denied a hearing before an impartial tribunal because one member of the panel, Worthy, had been the subject of a grievance prosecuted by Adams some months earlier. Wolff undoubtedly extends to inmates the right to a fair tribunal, but the extent of impartiality required in prison disciplinary proceedings must be gauged with due regard to the fact that they “take place in a closed, tightly controlled environment” in which “[gjuards and inmates co-exist in direct and intimate contact.” Wolff, 418 U.S. at 561-62, 94 S.Ct. at 2977. Due process may require that the fact-finders not include officials involved in the conduct of which the inmate is accused, see Meyers, 492 F.2d at 305-07; Edwards v. White, 501 F.Supp. 8, 10-11 (M.D.Pa.1979), aff'd mem., 633 F.2d 209 (3d Cir.1980), but we cannot say that due process is denied by a prison disciplinary panel that includes an official with whom the accused inmate has had a factually unrelated grievance in the past. Adams’ also argues that the IDC’s finding was based on insufficient evidence. We test the sufficiency of the evidence before the IDC by a highly deferential standard: due process is satisfied as long as the committee’s decision is supported by “some facts, ... any evidence at all.” Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir.1981). The IDC’s report states that Russell’s account of the photocopying incident was before the committee; indeed, it is on the incident report. We must defer to the prison committee and assume that they chose to believe Russell over Adams. We are more troubled by Adams’ contention that the IDC provided an inadequate “written statement ... as to the evidence relied on and reasons for the disciplinary action.” Wolff, 418 U.S. at 565, 94 S.Ct. at 2979 (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972)). The IDC report’s reference to “Mr. Russell’s account and subsequent investigation” is adequate as a description of the evidence considered by the committee in deciding that Adams lied to a staff member. Its explanation of the “reasons for the disciplinary action” presents quite another problem. The report states in full: Your [Adams’] conduct seriously disrupted the good order and discipline of the institution. You[r] open disagreement with management officials now and in the past clearly demonstrates that you pose a threat and cannot be minimized. Adams was charged in the “illegal petition” incident report with disruptive conduct of moderate severity, in violation of Rule 399. He was charged in the second report with high severity disruptive conduct, Rule 299, and with lying to a staff member, a moderate severity offense under Rule 313. The regulations provide, however, that prison officials may apply a catch-all disruptive conduct rule of a particular level of severity “only when another charge of [the same] severity is not applicable.” 28 C.F.R. § 541.13 (table 3). The committee found Adams guilty of a high severity offense, possibly exposing him to a longer period of disciplinary segregation. Id. (tables 3, 4, 5). But we are at a loss to discern from the IDC’s report what conduct the high severity disruptive conduct charge involved. If it was lying to an officer, then Rule 313 applied, and the worst that can be said is that the IDC failed to follow applicable regulations. If it was participating in the petition, however, then the invalidity of the charge under the vagueness doctrine tainted the sanction; and if it was some other conduct, then Adams was punished without first being given notice of the charge as Wolff requires. 418 U.S. at 564, 94 S.Ct. at 2979. The magistrate’s findings offer us no assistance in resolving this factual ambiguity. His only contribution is a conclusion that “the unit disciplinary hearings were in all things proper and complied with” Wolff We therefore find ourselves with insufficient findings to determine whether the punishment imposed on Adams was consistent with due process. IV. Immunity

1574777-15363

OPINION AND ORDER MARSH, District Judge. Plaintiff has brought this action under the Fair Labor Standards Act of 1938, as amended, to restrain defendant from withholding back wages allegedly due under §§ 6 and 7 of the Act in violation of § 15(a) (2), 29 U.S.C. §§ 206, 207 and 215(a) (2), and to enjoin defendant from alleged continuing violations of the record-keeping provisions of the Act, §§ 11(e) and 15(a) (5), 29 U.S.C. §§ 211(c) and 215(a) (5) and of the regulations pursuant thereto, 29 C.F.R. § 516. Defendant denied all allegations and in a pretrial stipulation admitted only that the activities of his business came within the Act and that the employees upon whose behalf the plaintiff sued were covered by the Act. From the testimony and the exhibits admitted into evidence, the court makes the following findings of fact. FINDINGS OF FACT 1. Defendant, Elwood P. Brady, individually and doing business as Elwood P. Brady, is an individual proprietorship located at 116 Dickie Drive, Irwin, Westmoreland County, Commonwealth of Pennsylvania. 2. Defendant, Elwood P. Brady, individually and doing business as Elwood P. Brady, was at all times relevant engaged in the business of contract transportation or hauling of materials used in the manufacture of steel, said steel being shipped in interstate commerce. 3. The defendant was at all such times engaged in the removal of slag and other waste material from the Duquesne plant of United States Steel and from other plants of United States Steel located in the McKeesport area, which activities are closely related and directly essential to the production of the steel produced in the respective plants. 4. The defendant transported the slag to Duquesne Slag Company, where, after further processing of the unsegregated mass, a portion of the processed slag was used in the construction and reconstruction of interstate highways, streets and roads. 5. The defendant, during the period relevant, employed the following persons for the periods of time indicated: Elmer T. Anthony — 3/17/64 to 7/31/64; Wayne Austin — 7/8/65 to 7/29/65; Donald W. Brady — 7/30/64 to 12/9/65; Ronald Comer — 3/17/64 to 12/9/65; Sherman Wayne Friend — 3/17/64 to 10/15/64; Roland J. Gallagher — 4/29/65 to 11/4/65; Robert L. Guy — 11/11/65 to 12/9/65; Russell Keener — 10/15/64 to 12/31/64; William E. Lloyd — 3/17/64 to 12/9/65; Harry H. Logan — 3/17/64 to 12/9/65; Andrew C. Lynch — 11/26/64 to 9/30/65; JohnW. McGraw — 4/15/65 to 5/20/65; George McMarlin — 3/17/64 to 12/9/65; Ralph M. Plowman — 3/17/64 to 4/8/65; Harry Stalowski — 5/6/65 to 6/24/65; and Walter Ward — 7/8/65 to 12/9/65. During all these times these men were employed as truck drivers in the hauling and transportation activities of the defendant as specified in the preceding paragraphs. 6. The daily time books kept by the defendant, which were delivered to John G. Mondics, investigator for the Secretary, correctly showed the individuals employed by the defendant, the number of days each worked in each workweek and the number of hours worked each day. . 7. Comparison of the defendant’s general payroll ledger (plaintiff’s Ex. B) with the defendant’s daily time books (plaintiff’s Exs. C-l through C-5) es tablishes that the defendant failed to compensate 11 of his employees for all hours recorded in the daily time books. .8. By reason of the fact that no compensation was paid for certain hours worked as recorded in defendant’s daily time book, the following amounts are due the 11 employees: Elmer Anthony — ■ $20.00; Wayne Austin — $12.00; Donald Brady — $44.00; Ronald Comer — $58.25; Sherman Friend — $73.84; William Lloyd —$10.00; Harry Logan — $43.93; Andrew Lynch — $16.00; John McGraw— $20.00; George McMarlin — $25.00; Walter Ward — $12.00; or a total of $335.02 (T., pp. 121-128 and plaintiff’s Ex. J). 9. The defendant paid, and all employees received, the same regular rate of $2.00 per hour for all hours worked, regardless of whether the hours were worked in overtime or non-overtime weeks. 10. The defendant failed to pay an overtime premium at the rate of one- and-one-half times the employees’ regular rate of $2.00 per hour for all hours worked in excess of forty. 11. As a result of the defendant’s failure to pay time-and-one-half for all hours in excess of forty, the following amounts of overtime premium are due the following employees: Elmer Anthony —$167.51; Wayne Austin — $39.00; Donald Brady — $509.26; Ronald Comer —$452.76; Sherman Friend — $959.78; Roland Gallagher — $550.50; Robert L. Guy — $18.50; Russell Keener — $115.00; William Lloyd — $556.50; Harry Logan —$146.69; Andrew Lynch — $947.75; John McGraw — $74.50; George McMarlin — $760.50; Ralph Plowman — $1,375.-75; Harry Stalowski — $48.50; and Walter Ward — $549.50, or a total of $7,272.-00 is due 16 employees of the defendant. 12. The defendant recorded compensation paid to his employees in four columns designated “regular time earnings” (R. T.E.), “overtime earnings” (O.E.), “other compensation” (O.C.), and “total earnings” (T.E.). Total earnings divided by hours worked always yields a rate of $2.00 per hour, regardless of the number of hours worked. For example: 13. The defendant was told by a representative of the Department of Labor on September 3, 1965 that his records were to be audited for the purpose of determining his compliance or noncompliance with the Act and was advised by the representative of the requirements of the Act (T., p. 246). 14. Following the audit, the defendant was again advised of the requirements of §§ 6, 7, and 11 of the Act by the investigator for the Department of Labor at a meeting on December 30,1965. As of December 30, 1965, a check of the defendant’s records disclosed that the defendant continued to pay his employees in violation of the overtime provisions of the Act (T., pp. 138-141). DISCUSSION Initially, plaintiff sought to prove inter alia, that the defendant had failed to compensate his employees for time spent in washing-up, travel, servicing their trucks, etc., but the court found no evidence to support this claim, and plaintiff withdrew these claims before the trial concluded (T., pp. 353-356). Defendant’s counsel, toward the close of the trial, asserted that the applicable Statute of Limitations, 29 U.S.C. § 255, barred the plaintiff from recovering wages due more than two years prior to the filing of the complaint, that is, before March 17, 1964. Plaintiff likewise withdrew claims for all such wages, reducing the number of employees to whom defendant allegedly owed back wages from the 19 claimed in plaintiff’s pretrial statement to 16. New calculations were prepared to show the total wages due each employee with such claims omitted, reducing the total back wages claimed for all employees from $14,174.55, as claimed in the pretrial statement, to $7,607.02, plus interest. Defendant’s references to the inclusion of additional time for travel, etc. in the investigator’s computations of back wages due are therefore inapposite since all claims for such time were withdrawn and the final calculations submitted by plaintiff reflect their elimination. Defendant contends that plaintiff has failed to meet his burden of proving back wages due. We cannot concur. Plaintiff’s case rests upon data obtained by examination of defendant’s daily time records, consisting of day-by-day notebook jottings, and his payroll ledger showing for each employee, according to weekly payroll period, the hours worked and the compensation paid in the four columns headed: “regular time earnings”, “overtime earnings”, “other compensation” and “total earnings”. Plaintiff’s proof that minimum wages were due some employees for uncompensated regular-time hours was established by a comparison of hours worked as recorded in defendant’s daily time records with the “hours worked” (and compensated) as shown in his payroll ledger. The investigator’s uncontradicted testimony, supported by his work sheets which were admitted into evidence, established discrepancies between these records which — assuming the daily time records to be correct — leave no other possible inference than that employees in some cases worked hours for which they were not compensated. In all other respects plaintiff adopted defendant’s time and payroll records as accurate. Defendant steadfastly asserted their accuracy, but has not contested the existence of these discrepancies. Likewise, defendant has not contested that his actual regular hourly rate of pay was $2.00. From defendant’s payroll ledger, it is plain that, regardless of whether an employee worked less or more than 40 hours in a given week, he was paid at the rate of $2.00 per hour. Defendant’s method was to compute “regular time earnings” by multiplying all hours in a given workweek amounting to 40 hours or less by the statutory minimum wage of $1.25 per hour (then prevailing), and to compute “overtime earnings” by multiplying any hours worked in excess of 40 by 1% times the minimum wage. He then added an amount of “other compensation” to produce “total earnings” which, when divided by hours worked, would result in an actual hourly rate of pay of $2.00 for all hours, regular or overtime. Defendant does not contest that this was his method of compensation, nor that it unvaryingly yielded a rate of $2.00 per hour. Hence, there are no factual matters in dispute. The regular (straight time) wages and/or overtime compensation claimed for each employee are susceptible of calculation by the use of uncontroverted figures, namely: (1) the minimum hourly wage of $1.25; (2) the defendant’s regular hourly rate of $2.00; and (3) defendant’s own daily time records which defendant asserts are correct. An examination of defendant’s argument on the issue of burden of proof leaves no doubt that he challenges not the adequacy of the proof, but the competency of the documentary evidence introduced to establish the amounts claimed. Defendant objects to all documents admitted except Exhibit A, on the ground that plaintiff failed to comply with the court’s procedural rule requiring parties to produce and identify their exhibits at pretrial. This the plaintiff did not do, except for Exhibit A, which is merely a summary of the regular, overtime and total wages claimed for each of 19 employees. In addition to Exhibit A, plaintiff offered, and the court admitted over defendant’s objections, the defendant’s accounting record book including his payroll ledger (Ex. B); five notebooks containing defendant’s daily time records for his employees for the relevant period (Exs. C-l through C-5); and the work sheets prepared by plaintiff’s investigator from data obtained by examination of defendant’s records (Exs. I and J). Defendant contends that plaintiff’s evidence left the amounts owed to the employees conjectural and unproved. There is no doubt that the aforesaid exhibits were essential to the plaintiff’s proof. Exhibits B and C-l through C-5 were the source of information regarding hours worked and compensation paid and hence plaintiff’s basis for computing the claims. These were defendant’s own records and defendant does not contest their accuracy; in fact, he affirmatively asserts it. Defendant cannot argue that by plaintiff’s failure to identify them at pretrial, defendant was surprised or otherwise prejudiced by their admission. Defendant could expect these documents to be part of the evidence. He must have known that if he did not introduce them, plaintiff would. The focus of defendant’s objections obviously is upon Exhibit I 1-25 and J 1-20 consisting of the work sheets and calculations prepared by the plaintiff’s investigator. Exhibit I was prepared by plaintiff’s investigator prior to trial to compute the back wages claimed for each employee. Exhibit J was prepared by him at the direction of the court during trial when, as already indicated, the defense raised the Statute of Limitations, and the court advised plaintiff’s counsel that in the court’s opinion there was no evidence to sustain the plaintiff’s claims for additional hours for travel time, etc. as inserted by the plaintiff’s investigator into his work sheets. Thus, Exhibits I and J were prepared in identical manner, and Exhibit J merely reflects a reduction in amounts claimed by the elimination of additional hours inserted for travel time, etc., and by plaintiff’s withdrawal of claims barred by the Statute of Limitations. Defendant objects that Exhibit I, the investigator’s work sheets, was not available to him prior to trial. Since the data originated in defendant’s own records, defendant’s sole basis for objection can be possible inaccuracies in the investigator’s compilation and calculations from these work sheets. But defendant does not assert that the investigator’s compilations are inaccurate nor request findings of fact contrary to the investigator’s calculations. While defendant contends that the plaintiff’s claims are conjectural and unproved, it is plain that defendant’s argument rests squarely on his objections to the admission of Exhibit I into evidence contrary to the letter of the local rule governing identification of exhibits at pretrial. With Exhibits I and J in evidence, there is nothing conjectural or uncertain about these amounts or how plaintiff arrived at them. The defendant has had adequate time during and since the trial to check the accuracy of these work sheets. The court is satisfied that defendant’s objections to the admission of Exhibits I and J rest on .technical rather than substantive grounds. The introduction of these exhibits greatly facilitated the testimony and substantially shortened trial time, without, we think, placing defendant at any material disadvantage. The alternative was recourse to defendant’s original records for proof, item by item, of hours worked and compensation paid, which would have meant a needlessly protracted trial to arrive at the same elements of proof. Since defendant has not contended that the evidence obtained from Exhibits I and J is inaccurate, or could have been shown to be inaccurate had defendant had proper notice, we find no basis for defendant’s contention that he was placed at a disadvantage by their admission. We think the work sheets were properly admitted in evidence. CONCLUSIONS OF LAW 1. The court has jurisdiction of the parties and of the subject matter of this cause (29 U.S.C. § 217). 2. The defendant’s employees are engaged in the contract hauling of materials used in the manufacture of steel for shipment in interstate commerce, thus placing the defendant’s employees in the production of goods for interstate commerce, within the meaning of the Act. 3. The defendant’s employees are engaged in the removal of slag and other waste materials from steel plants, activities closely related and directly essential to the production of steel, therefore placing the employees in activities closely related and directly essential to the production of goods for commerce. 4. The defendant’s employees are engaged in the transportation of unsegregated slag for further processing for use in the construction and reconstruction of interstate highways, streets, and roads, thus placing the defendant’s employees in interstate commerce and in the production of goods for interstate commerce, within the meaning of the Act.

1224341-12590

SPRECHER, Circuit Judge. This case involves the stabbing of a prisoner in a United States prison by another prisoner. The defendant was convicted of assault and of conveying a weapon within the prison. The defendant appeals certain evidentiary rulings regarding the assault charge and raises arguments concerning sufficiency of the evidence and double jeopardy regarding the conveying charge. We reverse both convictions. I On November 18, 1979, John Andrew Greschner and John Henry Logan were inmates at the United States Penitentiary, Marion, Illinois. Greschner was a resident of the control unit. Logan was in the control unit, cutting Greschner’s hair. At some point while Logan was cutting Greschner’s hair, a fight developed between the two. Greschner swung at Logan. During the fight, Greschner was seen holding a homemade knife in his hand. A correctional officer stopped the fight. Logan was taken to the hospital with multiple stab wounds. Greschner had no wounds. At trial, Greschner represented himself and presented a defense of self-defense. Defense witnesses testified that Logan attacked Greschner with a knife and that another inmate gave Greschner a knife, that he then used in self-defense. Gres-chner was convicted on both the assault, 18 U.S.C. 113(f), and conveying, 18 U.S.C. 1792, charges and was sentenced to ten years on each charge. II The defendant argues that certain evi-dentiary rulings of the trial court deprived him of the opportunity to present his defense adequately. The defendant attempted to present a theory of self-defense. The law allows such a theory. See generally Strong, The Predicates of Criminal Liability, 1980 Wis.L.Rev. 441. In presenting his defense, the defendant sought to prove that Logan had a character trait for violence and that Logan had a motive for attacking the defendant. The trial court excluded evidence on each issue. A First, the defendant attempted to present evidence that Logan previously had stabbed another inmate. The government objected on grounds of relevancy. The trial court upheld the objection. To determine whether the proffered line of inquiry was relevant to the defendant’s case, we begin by reviewing Fed.R.Evid. 401, which provides as follows: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. As the Advisory Committee’s Note indicates, the standard of probability is not stringent. The standard for relevancy is only that the evidence would make the existence of the fact “more probable.” As Professor McCormick has stated, “[a] brick is not a wall.” Advisory Comm.’s Note, quoting McCormick on Evidence, § 152 at 317. In this case, the question becomes whether the victim’s participation in a previous stabbing has “any tendency” to make the existence of the fact in issue — that he had a violent character — more probable. We conclude that such evidence does make the existence of that fact more probable. Also, the “violent character” line of proof is relevant to the defendant’s theory of self-defense in that it makes his version that the victim attacked him “more probable.” Therefore, the character evidence proffered was relevant. Character evidence, although relevant, generally is not admissible for the purpose of proving that a person acted in conformity with that character. But Fed. R.Evid. 404 creates a specific exception allowing a defendant to offer evidence of a pertinent character trait of a victim. Offering such evidence was precisely what the defendant was trying to do in this case. The government next argues that, even if the evidence was relevant and admissible under Rule 404, it was still properly excluded because it would have been “distracting”, cumulative, hearsay, and because the defendant did not lay the proper foundation for his questions. These arguments are virtually frivolous. Since evidence of Logan’s character is relevant to the defendant’s defense, we do not see how it could be “distracting” any more than any other acceptable defense theory. The government’s argument that such evidence would be cumulative because “most incarcerated prisoners have committed violent crimes” is totally unsubstantiated. Even if the government could establish that the quoted statement is true, that would not indicate that the evidence in the defendant’s trial was cumulative. The government next argues that the defendant’s attempt to introduce the victim’s character trait of violence through an inmate witness was hearsay. The witness testified that Logan was placed in the control unit “for a stabbing.” But regardless of whether that particular statement might have been hearsay, the trial court ruled that the subject matter of the proffered character evidence was irrelevant and directed the defendant, representing himself, to move on to another area. Had the exclusion been based merely on hearsay, which it was not, the defendant would have had the opportunity to reformulate his questions or subpoena other witnesses, if possible, to substantiate the stabbing. Finally, the government argues that the defendant failed to lay the proper foundation for the introduction of evidence regarding Logan’s propensity for violence. But as we stated in United States v. Fountain, 642 F.2d 1083, at 1087 n.3 and 1088 n.4 (7th Cir. 1981), we decline to elevate procedural formalities to insurmountable barriers, especially where a defendant is not represented by counsel. In this case, where the court clearly ruled the evidence irrele vant, that the defendant may have mis-stepped along the sophisticated procedural path of “laying a foundation,” cannot overcome the improper exclusion of the proffered evidence. Therefore, for the foregoing reasons, the trial court’s exclusion of evidence regarding the victim’s character trait for violence was erroneous. B The trial court also excluded evidence tending to show that Logan had a specific motive for attacking the defendant. The defendant’s theory was that Logan thought that the defendant had spread the word within the prison that Logan was an informer. The government objected, on relevancy grounds, to this evidence. The trial court sustained the objection. The defendant argues that evidence that Logan thought the defendant had labelled Logan an informant would make the defendant’s theory “more probable” and therefore, the evidence was relevant. We agree. It is beyond reasonable dispute that labelling an inmate an informer presents a very serious liability to the labelled inmate. If an inmate believes that he or she has been labelled an informer, the inmate might seek revenge. Of course, we express no opinion as to whether the defendant’s proof would be persuasive. But it certainly would be a “brick in his wall.” Fed.R.Evid. 401, Advisory Comm.’s Note. Therefore, the proffered evidence was relevant. The trial court’s ruling excluding this motive evidence as irrelevant was erroneous. The excluded evidence related specifically to the defendant’s self-defense theory. The trial court’s improper exclusion of the character and motive evidence was seriously prejudicial to that theory. Therefore, the improper evidentiary rulings require reversal of the defendant’s assault conviction and a new trial. Ill We now consider the defendant’s argument that his conviction for “conveying” a knife must be reversed. The defendant’s arguments are very similar to arguments we considered recently in United States v. Fountain, 642 F.2d 1083 (7th Cir. 1981), and we are guided by the principles set forth there. A The defendant argues that convictions for both the assault charge and the conveying charge amounted to double jeopardy because both charges punish him for the same action. We reject this argument for the same reasons we rejected it in Fountain, at 1093-1095. First, there is no evidence of legislative intent to punish the crimes other than separately. Second, the elements of an assault charge are different from the elements of a conveying charge. Third, in order to avoid double jeopardy, the proof required for conviction must meet the test announced in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). See Albernaz v. United States,-U.S.-,-, 101 S.Ct. 1137, 1140, 67 L.Ed.2d 275 (1981). The Blockburger test is as follows: [WJhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Here, looking to the elements of each crime, see note 7 supra, we see that each crime requires proof of facts the other does not. Under the assault charge, the government must prove that the defendant assaulted the victim and that the assault resulted in serious injury. As will be discussed, assault with a knife, without more, does not necessarily include “conveying” that knife. Therefore, we find that the defendant’s convictions of both assault and conveying do not violate his rights against being placed in double jeopardy. B Second, the defendant argues that his conviction for conveying the knife should be reversed for insufficient evidence. He argues that the evidence did not establish that his possession, use, and surrender of the knife amounted to “conveying” the knife. We agree. In Fountain, at 1092-1093, we reviewed the case law regarding what “use” of a weapon amounts to a “conveying” of a weapon. We emphasized that mere possession could not support a conveying conviction; some transportation must occur. We then found that the facts there clearly amounted to substantial transportation. Id. at 1093. But the facts in the present case do not demonstrate any significant transportation, aside from the actual possession, use, and surrender of the knife. A close review of the evidence only shows that the defendant used the knife to stab Logan; he then surrendered the knife to prison officials. First, unlike the situation in Fountain, where the evidence clearly showed that one of the defendants “conveyed” the knife to the location of the stabbing, at 1093, here, there was no such evidence. Government witnesses saw the stabbing only after it began; the defense witnesses testified that another inmate gave the knife to the defendant after he had been attacked. Second, in Fountain, the evidence strongly showed a “conveyance” during the stabbing by the defendants that went far beyond the actual use. The defendants pursued their victim over a wide area, chasing him and stabbing him. At one point, a defendant was stabbing the victim, walked away from the victim to threaten correctional officers, then walked back to the victim and continued stabbing him. At 1085-1086. The evidence in the case before us does not show a similar chase scene inconsistent with self-defense. Third, although the defendant did engage in some transportation of the knife in order to surrender it, we decline to hold that such transportation amounted to “conveying”. When correctional officers first broke up the incident, the defendant was told to “back off” from the victim. He did so. The record does not reflect that the defendant was told to drop the knife. Apparently, the defendant stood motionless while the victim was removed. Then the defendant walked approximately ten feet to a waiting correctional officer and surrendered the knife. Given that this transportation was solely to surrender the knife, we conclude that this transportation does not rise to “conveying” a knife within the prison. Although in many cases a defendant will both “convey” and use a weapon, there must be some line between the two actions. The line may not be a bright one, but it must exist. We cannot allow a “conveying” charge to be tacked on to every assault charge. There must be independent evidence of the “conveying” beyond the actual possession and use. See generally United States v. Kirkland, 637 F.2d 654 (9th Cir.1980). Here, the evidence only showed use of the weapon. The government did not satisfy the requirement for independent evidence of conveyance. Transportation solely for surrender will not meet that requirement. Therefore, the defendant’s conviction for conveying must be reversed. IV For the foregoing reasons, the defendant’s conviction for assault is REVERSED AND REMANDED for a new trial and his conviction for conveying is REVERSED with instructions to enter a judgment of acquittal.

8929989-16818

MEMORANDUM OPINION J. MICHAEL DEASY, Bankruptcy Judge. I. INTRODUCTION The question before the Court is whether the Court can use its equitable discretion to extend the deadline to object to the dischargeability of certain debts when the complaint is filed after the ■ deadline has passed and no motion to extend time to file a complaint has been filed. On April 8, 2005, the Plaintiff filed a complaint objecting to the dischargeability of the Debtor’s obligations to the Plaintiff pursuant to 11 U.S.C. § 523(a)(6) (the “Complaint”). The Complaint was filed ten days after the deadline to object to the dischargeability of a debt. This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and the “Standing Order of Referral of Title 11 Proceedings to the United States Bankruptcy Court for the District of New Hampshire,” dated January 18, 1994 (DiClerico, C.J.). This is a core proceeding in accordance with 28 U.S.C. § 157(b). II. FACTS Hollis Eaton (the “Debtor”) filed for protection under chapter 7 of the Bankruptcy Code on December 23, 2004. The deadline to file a complaint objecting to discharge of the Debtor or to determine dischargeability of certain debts was set for March 29, 2005. The Debtor listed Sandra Francis a/p/n/f of Antony Venturi, Jr. (the “Plaintiff’) in his bankruptcy schedules together with the name and address of Plaintiffs counsel . However, the address of Plaintiffs counsel was not included in the mailing matrix filed by the Debtor. The docket reflects that the first meeting of creditors originally scheduled for January 28, 2005, was rescheduled to February 18, 2005. On February 8, 2005, Debtor’s counsel provided a written notice of the rescheduled meeting to a number of parties, including Plaintiffs counsel (the “Letter Notice”). On April 8, 2005, the “Plaintiff’ filed the Complaint objecting to the dischargeability of the Debtor’s obligations to the Plaintiff pursuant to 11 U.S.C. § 523(a)(6). The Debtor answered the Complaint and moved for summary judgment based, inter alia, upon a claim that the Complaint was not timely filed (the “SJ Motion”). The Plaintiff filed an objection to the SJ Motion (Doc. No. 9) (the “Objection”) alleging that the Debtor should have listed Plaintiffs counsel in the creditor mailing matrix filed with the Court, did not include the proper address for the Plaintiff in the mailing matrix, and that the Complaint was filed 48 days after the Plaintiff first learned of the filing of the Debtor’s chapter 7 bankruptcy petition. Plaintiffs counsel acknowledged receipt of the Letter Notice in the Objection as well as actual knowledge of the bankruptcy case pursuant to a telephone conversation with Debt- or’s counsel prior to receipt of the Letter Notice. The Court held a hearing on the SJ Motion on June 8, 2005 in connection with the pre-trial conference. The Plaintiff acknowledges the complaint was filed after the deadline established by Federal Rule of Bankruptcy Procedure (hereinafter “Rule”) 4007(c). However, she argues: (1) the defects in the mailing matrix filed by the Debtor excuses her untimely filing because it was filed within sixty days of her learning of the commencement of the bankruptcy case; (2) Plaintiffs counsel erroneously thought that February 18, 2005, was the original date set for the first meeting of creditors and through excusable neglect he computed the deadline as being sixty days after that date; and (3) due to the Debtor’s failure to provide proper and timely notice to the Plaintiff, this Court may equitably toll the deadline under Rule 4007(c). III. DISCUSSION Rule 4007(c) sets the deadline for filing a complaint objecting to the dischargeability of a debt under section 523 of the Bankruptcy Code as “60 days after the date first set for the meeting of creditors under § 341(a).” Fed. R. Bankr.P. 4007(c) (emphasis added). In this case, the deadline was set for March 29, 2005. Rule 9006(b)(3) provides that the Court may not enlarge the time to file a complaint under Rule 4007(c) for any reason outside of the provisions of Rule 4007(c). Rule 4007(c) provides that “the court may for cause extend the time fixed under this subdivision. The motion shall be filed before the time has expired.” Fed. R. Bankr.P. 4007(c) (emphasis added). The Plaintiff failed to timely file her Complaint or to timely seek an extension of the deadline under Rule 4007(c). Accordingly, the Court shall grant the S J Motion. A. Improper Notice Plaintiffs improper notice argument can be broken down into two components: due process and excusable neglect. First, the Plaintiff argues emphatically that she did not receive notice of the “original, court-scheduled date of the § 341 Meeting” because the mailing matrix: (1) did not list Plaintiffs attorney and (2) listed the Plaintiff at an address where she had not lived for over two years. The Debtor counters the address on the mailing matrix is the Plaintiffs last address of record in her prepetition lawsuit against the Debtor in the pending state court action. Therefore, any defect in the address is Plaintiffs fault because she failed to notify the state court and the parties to that proceeding of her change in address as required by state court rules. This is the due process argument. Second, the Plaintiff argues that the Letter Notice was misleading because her counsel thought the date of the rescheduled section 341 meeting contained in the Letter Notice was the original date for the section 341 meeting. Although not specifically stated, it appears that the Plaintiff is arguing that her counsel’s mistake was a result of excusable neglect. 1. Excusable Neglect In order to determine excusable neglect, the Court looks to the relevant circumstances surrounding the Plaintiffs failure to act to determine whether the failure constitutes excusable neglect. The excusable neglect argument fails for two reasons. In this case, the Plaintiff had actual notice of the bankruptcy filing and the date of the rescheduled 341 meeting. Any confusion regarding the appropriate deadline for filing a non-dischargeability complaint was a function of her counsel’s failure to take reasonable actions to ascertain the date. The mistake by Plaintiffs counsel in calculating the deadline and his failure to take any measures to ascertain the correct deadline do not constitute excusable neglect. Even if the Plaintiffs failure to act was found to be based upon excusable neglect, the provisions of Rule 9006(b)(3) preclude the Court from extending the deadline under Rule 4007(c) based upon excusable neglect. Neeley v. Murchison, 815 F.2d 345, 346 (5th Cir.1987) (holding that Rule 9006(b)(3) explicitly excepts Rule 4007(c) from the “excusable neglect” standard); Byrd v. Alton (In re Alton), 837 F.2d 457, 459 (11th Cir.1988) (holding that Rule 4007(c) does not allow the Court any discretion to grant a late filed motion to extend time to file a dis-chargeability complaint); but see In re Rychalsky, 318 B.R. 61, 64 (Bankr.D.Del.2004) (holding that applied equitable principles to extend 4007(c) deadline to allow amendment adding fraud counts to timely filed complaint). Therefore, to the extent that the Plaintiffs notice argument is based upon excusable neglect, it is unavailing. 2. Due Process The Plaintiffs due process argument is equally unavailing. Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Notice need not be perfect but reasonable based on the circumstances of the case. In re San Miguel Sandoval, 327 B.R. 493, 2005 WL 1405828 (1st Cir. BAP 2005); In re DCA Dev. Corp., 489 F.2d 43, 47 (1st Cir.1973); In re Intaco Puerto Rico, Inc., 494 F.2d 94, 98 (1st Cir.1974); Zidell, Inc. v. Forsch (In re Coastal Alaska Lines, Inc.), 920 F.2d 1428, 1430 (9th Cir.1990); In re Anderson, 159 B.R. 830, 838 (Bankr.N.D.Ill.1993). Creditors in bankruptcy-cases are entitled to the due process rights granted by the Fifth Amendment. Aboody v. U.S. (In re Aboody), 223 B.R. 36, 40 (1st Cir. BAP 1998). Notwithstanding any deficiencies in the mailing matrix, Plaintiffs counsel has acknowledged, and the docket reflects, that Plaintiffs counsel had actual knowledge of the bankruptcy case and the date of the rescheduled section 341 meeting no later than early February, 2005. Counsel obtained written verification of the same upon receipt of the Letter Notice dated February 8, 2005. Counsel makes much of the fact that the Plaintiff did not receive notice of the case until after the original date for the section 341 meeting. The Court finds more significant that the notice was received over a week before the re-scheduled 341 meeting and over a month before the deadline to object to dischargeability. The Court further finds that any confusion regarding the appropriate deadline for filing a non-dis-chargeability complaint was a function of the failure of the Plaintiff to take reasonable action to ascertain the date of the deadline. There is no dispute that Plaintiffs counsel was actively representing the Plaintiff in the state court proceeding at the time of the bankruptcy filing. In light of this fact, the Plaintiff is bound by her counsel’s actions or inactions. Link v. Wabash R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); In re Griggs, 306 B.R. 660, 665 (Bankr.W.D.Mo.2004); In re Glow, 111 B.R. 209, 218 (Bankr.N.D.Ind.1990); Paras v. City of Portsmouth, 115 N.H. 63, 67, 335. A.2d 304 (1975); Dumas v. Hartford Accident & Indem. Co., 94 N.H. 484, 490, 56 A.2d 57 (1947); Perkins v. Public Service Company of New Hampshire, 93 N.H. 459, 466, 45 A.2d 210 (1945). Accordingly, the Court finds that despite actual knowledge of the commencement of the case, Plaintiffs counsel failed either to file a complaint or make a timely request under Rule 4007(c) to extend the March 29, 2005, deadline to file a complaint. The Plaintiff had sufficient time to react to the bankruptcy filing and file a timely complaint objecting to the discharge of the debt or to seek an extension of the deadline. The Plaintiffs failure to take timely action to protect her rights was not due to inadequate notice of the pending proceeding. B. Equitable Tolling Plaintiff argues that the Court should equitably toll the deadline established under Rule 4007(c). Citing a case from the Sixth Circuit Court of Appeals, the Plaintiff contends the deadline to object to dischargeability is in the nature of a statute of limitations and, therefore, subject to the principles of equitable tolling. Nardei v. Maughan (In re Maugham), 340 F.3d 337, 344 (6th Cir.2003). In Nardei, the Sixth Circuit Court of Appeals reviewed a bankruptcy court decision to grant a motion to extend the deadline under Rule 4007(c) even though the complaint objecting to dischargeability was filed three days after the deadline. The Sixth Circuit Court held because Rule 4004(a) deadlines are not jurisdictional, the Court may exercise its equitable powers under 11 U.S.C. § 105 to extend the deadline in extraordinary cases. Nardei, 340 F.3d at 343. In reaching this decision the Sixth Circuit followed the rationale of the Seventh Circuit Court of Appeals in In re Kontrick, 295 F.3d 724 (7th Cir.2002). In Narden, the Sixth Circuit Court commented on the Seventh Circuit Court’s statement in Kon-trick that “[although [Rule 9006(b)(3) ] restricts the grounds upon which the bankruptcy court may enlarge the time for actions required by Rules 4004(a) and 4007(c), these restrictions still vest a great deal of discretion in the bankruptcy court.” Nardei, 340 F.3d at 343 n. 7 (quoting Kontrick, 295 F.3d at 730). The Nardei court found the statement giving the bankruptcy court expansive discretion was “somewhat puzzling” because, in its view, Rule 9006(b)(3) restricted the bankruptcy court discretion to enlarge the time limits to the specific conditions set forth in the Rule. Interestingly, and seemingly contrary to its apparent recognition of a limitation on the discretion of the bankruptcy court under Rule 9006(b)(3), the Sixth Circuit upheld the bankruptcy court’s use of its discretion granting a motion to extend the deadline under Rule 4007(c) filed three days after the deadline. This Court finds that result more than “somewhat puzzling” given the Sixth Circuit’s express recognition of the language in Rule 9006(b)(3) in its opinion. Apparently, the Sixth Circuit’s comment on the restrictions in Rule 9006(b)(3) is something less than dictum. Several other courts not cited by the Plaintiff have also approved extensions of the time to object to discharge or dis-chargeability when the motion to extend was filed after the deadline. European Am. Bank v. Benedict (In re Benedict), 90 F.3d 50, 54 (2d Cir.1996) (time period under Rule 4007(c) is not jurisdictional and is subject to waiver, estoppel, and equitable tolling) (citing United States v. Locke, 471 U.S. 84,94 n. 10, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985)); In re Rychalsky, 318 B.R. 61, 64 (Bankr.D.Del.2004) (holding that, based on Kontrick, Rule 4004(c) is not jurisdictional and is subject to equitable principles, including tolling); In re Otte, 2004 WL 2187175 (Bankr.D.Kan.2004) (holding that, based on Kontrick, equitable tolling applies to deadline in Rule 4007(c)) (citing United States v. Locke, 471 U.S. 84, 94 n. 10, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) for the proposition that statutory filing deadlines are generally subject to waiver, es-toppel, and equitable tolling). In each of these decisions, the courts first determined that the deadline in Rule 4004 or 4007 was not jurisdictional and, then held that the bankruptcy court could use its equitable powers under § 105 of the Bankruptcy Code to permit untimely filed complaints or grant untimely motions to extend the time to file such complaints under principles of equitable tolling. The Supreme Court specifically declined to rule on whether equitable principles permit the bankruptcy court to extend deadlines under Rules 4004 and 4007. Kontrick, 540 U.S. at 447, 124 S.Ct. 906. There is no controlling precedent in the First Circuit. This Court rejects the rationale that because Rule 4007 is not jurisdictional, the bankruptcy court has unfettered discretion to extend deadlines under Rule 4007 under the principle óf equitable tolling. This Court finds that even though the deadline in Rule 4007(c) is not jurisdictional, a bankruptcy court does not have unlimited discretion to apply equitable principles to extend that deadline. While principles of equitable tolling may, as a general proposition, apply to non-jurisdictional deadlines, the general rule cannot overcome express limitations. As noted by the Sixth Circuit in Nardei, Rule 9006(b)(3) limits the court’s discretion to the express conditions in Rule 4007(c). Specifically, any request to extend the deadline must be filed “before the time has expired.” Fed. R. Bankr. P. 4007(c). In re Prego Cruz, 323 B.R. 827, 831 (1st Cir. BAP 2005) (citing Lure Launchers, LLC v. Spino, 306 B.R. 718 (1st Cir. BAP 2004)). None of the decisions allowing extensions of time for complaints or motions filed after the deadline explain how the decision is consistent with the express language in Rule 9006(b)(3). If the rationale of Nardei and the other cases is correct, then Rule 9006(b)(3) has been at least partially repealed or limited in its application. There is no suggestion in any of the cases that the most natural meaning of the phrase “only to the extent and under the conditions stated in [Rule 4007(c)]” does not act to restrict the discretion of the bankruptcy court. Policy considerations or general equitable principles cannot trump the enforcement of the Bankruptcy Rules in accordance with the natural meaning of the language of the rule. Cf. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394-95, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (interpretation of the Bankruptcy Rules should follow the natural meaning of the language); In re Ludlow Hosp. Soc., Inc., 124 F.3d 22, 28 (1st Cir.1997) (bankruptcy court may not utilize section 105 if a more particularized Code provision impedes the exercise of its equitable power). Limitations of time and discretion may impose burdens on the parties. However, the Supreme Court has specifically approved the application of such limitations in the Bankruptcy Rules in accordance with their terms. Taylor v. Freeland & Kronz, 503 U.S. 638, 644, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) (“Deadlines may lead to unwelcome results, but they prompt parties to act and they produce finality.”).

3573841-23614

HAZEL, District Judge. The patent in suit, No. 924,546, granted June 8, 1909, to William L- R. Emmet, assignor to complainant corporation, relates to an improvement in the construction of steam turbines, and is especially adapted to the utilization of steam for driving dynamo electric machinery at a high rate of velocity. In its operation, as is commonly known, the turbine is different from the reciprocating engine, in that it has revolving disks, or wheels, or a drum surrounded by a plurality of vanes or buckets uniformly spaced side by side, or one succeeding another, forming a passage through which the steam flows parallel to the shaft. A detailed discussion of the steam turbine and its bearing upon the use of modern high-power machinery, and of the existing differences between the impulse and reaction types of turbines—the latter the discovery of Mr. Parsons of England, the former 'of Mr. De Laval of Sweden—is not necessary to a decision of this controversy. Those interested in the subject are referred to the exhaustive and comprehensive opinion of Circuit Judge Buffington in International Curtis Marine Turbine Co. et al. v. Wm. Cramp & Sons Ship & Engine Bldg. Co., 202 Fed. 932, 121 C. C. A. 290. It is sufficient here to state that the reaction and impulse types of turbinés are alike in appearance, although they differ somewhat in the principle of operation. In the reaction type, Parsons utilized a multiplicity of sets of rotating and stationary vanes, buckets, or blades around the rotor, through which the steam flowed from one side to the- other, with the result that the heat energy produced a slower rotation; while in the impulse type, De Laval used a single wheel or rotor with one set of vanes, thereby achieving a higher rate of speed. Subsequently Curtis, an American .inventor, who retained in his construction the Parsons’ feature of rotary and stationary vanes, operating them on the De Laval principle, was given letters patent for improving both types of turbines. The Emmet improvement 'in suit is usable with these various types of turbines. The specification states generally: • “Elastic fluid turbines, as commonly constructed, are provided with one or more sets of rotary vanes or buckets arranged on the periphery of a wheel or cylinder, and between the rotary vanes, when more than one set is used, are other vanes or buckets which receive the motive fluid from one set of moving vanes, and direct it into a second set, this action being repeated for each set of moving and stationary vanes. The vanes or buckets of the moving element may be cut from the solid stock, or may be made detachable; in either evgnt it is desirable to provide means for covering or closing in the ends of the buckets in order to form fluid passages of definite and predetermined cross-sectional area and to reduce losses by leakage. The same closing in of the ends is desirable on the stationary vanes or buckets and for the same reasons.” And in recognizing that prior to his improvement, to prevent the escape of steam, turbines had cover strips fastened to the ends of the vanes on the rotor, the patentee states : “Previous to my invention all turbines of tbe above-described class with which I am familiar were provided with covers made of continuous steel rings shrunk or pressed on over the ends of the vanes of the revolving element, and retained in place by screws. Such a cover is expensive and inconvenient to machine, and with the speeds ordinarily used the strain on the holding devices due to centrifugal action is excessive. Owing to the construction of the parts it is often not practicable to make each one of these attachments strong, ■and consequently the cover is liable to be a source of danger and a limitation upon the safe design of a machine.” It was known long before the Emmet invention in suit that the vanes were liable to injury from the vibrations of the rotor, owing to the tremendous speed and resulting strains. Parsons, appreciating this, as hereinafter more particularly specified, provided for holding the vanes firm, a blade tie, which the complainant, however, claims did not succeed in performing the functions of the Emmet cover strip. To insure a clear understanding of the invention involved Pigs. 1 and 4 of the drawings of the patent in suit are herewith reproduced: It will be observed that the cover plate is divided into sections and positioned over the vanes or buckets, which are integral with the base of the wheel blank, though they may be detachable; that the steam flows through the spaces between the vanes; that at the ends of the vanes there are tenons having two flat surfaces and two curved surfaces, formed integrally with the vanes to fit apertures in the cover sections ; and that each section has straight ends notched to receive half a tenon or projection. The claims in controversy are as follows: “3. In a turbine, tbe combination of a plurality ■ of vanes, a sectional covering for tbe ends of tbe vanes, eaeb section being provided with a plurality of openings registering with tbe vanes, and tenons wbicb pass through tbe openings and are riveted over to bold tbe sections in place. “21. In a turbine, tbe combination of vanes or buckets having curved front and rear faces, tenons formed on tbe buckets, having two flat surfaces and two surfaces, which partake of tbe curvature of tbe buckets, and a cover having openings therein, which register with and correspond in shape to the tenons. “23. In an axial-flow turbine, the combination of a support, a plurality of radiating vanes carried thereby, tenons formed integral with the vanes and projecting from their outer ends, and a cover confining the steam to the bucket spaces applied to the free ends of the vanes, and provided with openings to receive the tenons and through which the latter extend, such cover transmitting its centrifugal strains radially to the support through the vanes. "32. In a turbine, the combination with the vanes or buckets and a support therefor, of tenons made integral with the buckets and a discontinuous or Jointed cover confining the steam to the bucket spaces having openings through which the tenons pass, the cover being secured to the buckets by the riveting of the tenons thereon.” ■ Claim 3 specifies the jointed cover plate, with a series of opening through which the tenons are projected; claim 21 particularizes the peculiarly shaped tenons and cover openings; claim 23 specifies the principal elements of the combination, and refers to an axial-flow turbine ; while claim 32 is more specific as to the cover strip and the means for attaching it to the vanes. It is clearly shown in the specification, and the proofs support the complainant’s claim that the object of the patentee was to overcome the objectionable excessive strains caused to prior covers or rings by centrifugal action, and to prevent the leakage of steam and consequent loss of energy, which interfered with the desired velocity of the rotors. The rotor element should be included by implication in the claims from which it was omitted; but I think a construction of the claims so broad as to include the stationary element, which was not susceptible to rotary stresses, would not be warranted. The defenses are want of novelty and invention, anticipation, and noninfringement. In view of the fact that cover plates or rings over the ends of the vanes were old and had previously been provided in an impulse type of turbine to prevent the spilling of steam, the important question is whether the patentee, by using tenons of peculiar shape to fit corresponding apertures in a sectional cover strip and riveting them thereto, exercised the inventive faculty, or whether what he accomplished consisted merely of a substitution of tenons for the screws which were used in continuous rings, as a means for joining'the buckets to the cover, “and as an incident thereto made the cover of one or more strips in lieu of a continuous ring.” The evidence is persuasive of the point that Emmet, by his combination of new and old elements, made an advance in the art. He was the first to use tenons in steam turbines for rigidly fastening the cover plate to the vanes, and such use, considering the difficulties encountered in the use of prior steam turbine covers, involved a fair amount of invention. By his combination he achieved a beneficial result which others working in the art had failed to achieve. In prior patents in evidence the covers or rings pressed on over the vanes, and, screwed in place, were designed to prevent centrifugal spilling of the steam and to tie the blades together to strengthen fhem against vibratory strains which inhere in them during their rotations, but none of them suggest the use of tenons for fastening sectional covers over the ends of the vanes to protect them from excessive stresses and consequent distortion or displacement. The patent to Schmaltz, it is true, discloses a propeller wheel hav-. ing around it a wide continuous rim to which the blades are fastened at their ends by tenons, and the Montgomery patent, No. 5,364, shows integral tenons extending through the casing surrounding the propeller blades and riveted, and an earlier patent to Montgomery shows a casing made in various sections. There are also patents showing vehicle wheels having integral tenons at the. ends of the spokes riveted on the outer surface of the rim; but such prior patents are not closely analogous. The adaptation of tenons for fastening the rims of propeller blades and wheels does not preclude patentability in their adaptation in steam turbines in combination with sectional covers, as an improvement over prior fastening means, as shown in the Emmet structure. The elicited facts preponderatingly show that the use of the peculiarly shaped tenon described in claim 21 to conjoin the cover sections to the vanes was not an obvious expedient, and that those .skilled in the art, familiar with tenons and their adaptability, and actively engaged in the construction of steam turbines, in experimenting to prevent injury to the vanes and cover caused by the tremendous speed of rotation, never thought of fastening the cover plate to the vanes by tenons to impart rigidity and to reduce the leakage of steam. According to the patent law the inventive faculty resides in the reduction of an idea to practice as distinguished from merely making mechanical alterations, and whenever an old device is put to a new use, and such use produces' a new result, a question of fact arises as to whether such other adaptation would occur to a person of ordinary mechanical skill Hobbs v. Beach, 180 U. S. 383, 21 Sup. Ct. 409, 45 L. Ed. 586. It frequently happens that slight modifications in a machine producing a new combination and a meritorious result raise the presumption of invention. Beach v. American Box-Machine Co. et al. (C. C.) 63 Fed. 597. The witness Curtis, the inventor of the Curtis turbine, testifying as to the importance of the modification, stated that one of the difficulties with the screwed on covers was that the “thick part of the bucket was so small measured in the circumferential direction' that a rivet or screw of sufficient size to have any great strength could not be put through the bucket without cutting it in two, or weakening it too much”; and he expressed the opinion that that had always been one of the problems. Surely such testimony from a witness thoroughly acquainted with the art and the details of steam turbine- construction may well justify resolving any doubt as to invention in favor of the patentee. The defendant, however, attaches importance to tire patents to Parsons, Stoney and Fullager, and asserts that they are anticipatory. In such patents the blades were bound round near the outer ends with a metal strip; the extreme ends, however, were left uncovered and projected beyond the strip. Although the-rings were made either continuous or in sections, still their principal purpose was to tie the blades to impart rigidity and alignment to them. They were unable to perform the functions of the claims in suit, and therefore do not anticipate them. In the Parsons patent, No. 639,608, of 1899, the blade tie is also essentially different from the Emmet invention. The wires or ring's which tie the blades together, while concededly imparting rigidity to them, nevertheless failed to perform the dual function of the Emmet construction; they interfered with the uniform flow of the steam through the rotor, and did not actually prevent spilling of the steam at the outer énds of the blades. This patent; like the Parsons, Stoney and Fullager patents belongs to a class of patents in which the necessity was apparently appreciated for a more suitable cover or strip for the' blades—one which would remove the vibratory stresses and lessen the leakage. The evidence shows, also, that tie blades and the rings or shrouds of the prior art were difficult of manufacture, owing to their bore, their thinness, and their notches- making connection with the blades. The Lash patent, No. 637,135, for a water wheel, is not in the same art as the steam turbine, and did not suggest the Emmet improvement. True enough, it is provided with buckets, but they are attached to side rings or plates, which are not the equivalent of the cover in suit, and are utterly unable to perform its function. The tenons or projections are inserted in openings in the side ring, but they are not riveted, as are the tenons of the patent in suit. The Larson patent, No. 598,998, acquired distinction in the Patent Office, which originally treated it with consideration, but later withdrew it as a reference. It relates to the radial-flow type of turbine as distinguished from the axial-flow type. The defendant claims that the specification shows that the Larson structure is provided with vanes and integral tenons extending through and riveted over holes in the wheel; but to this construction of the specification and drawings the complainant’s expert witnesses do not agree. An inspection of the patent discloses that the undoubted object of the patentee was to combine the regulating valve and nozzle for turbines, and arrange the same to enable the expansion of steam as it passes from the source of supply into an element of the turbine. The description is indefinite as to whether or not the buckets are fastened to the rotor, and, if so, in what manner they are fastened thereto. Nor is it clearly stated that the ends of the buckets have covers which are riveted over tenons or projections, although the drawings seem to indicate such an arrangement. I feel convinced, however, that the cover or continuous ring was not designed to perform the function of the Emmet patent; its thickness (F of Fig. 2) would seen to indicate that its primary use was to support the buckets rather than to perform the function of a ring or cover fo-r the blades. There is no evidence to show that the Larson structure was practicable. In any event, the indefiniteness of the description as to the manner in which the ring was attached to the buckets justifies the presumption that Larson had no such conception as the defendants accredit to him; and invention is not to be ascertained merely from the drawings. Canda et al. v. Michigan Malleable Iron Co., 124 Fed. 486, 61 C. C. A. 194; Taylor Burner Co. v. Diamond (C. C.) 72 Fed. 182; Australian Knitting Co. v. Wright’s Health Underwear Co., 119 Fed. 921, 56 C. C. A. 451. In the Geisenhoner patent, No. 665,600, the illustration shows vanes, and specifies the use of ordinary tenons or ears for entering recesses in the face of the back plates! The object of the patentee was to improve the form of the buckets, and, as the patent has no relation to a cover over the ends of the vanes, is therefore entitled to little consideration. It is unnecessary to refer in 'detail to any other patents claimed by defendant to anticipate or negative the novelty of the Emmet claims in controversy. They have all, including the patent for a distinctive cover of the De Eaval turbine, been examined by me, and the testimony bearing thereon has been considered. The proofs are that the continuous ring qr shroud of the prior art was impracticable in high-power motors, that it lacked complete efficiency as a strengthening means for the blades, and that, while it was workable with short vanes, it was inefficient with longer vanes of thinner construction. Emmet by his improvement, which is applicable to both types of turbines, with vanes of differing dimensions, performs the double function of covering the ends of the vanes to prevent the escape of steam, and of holding them rigid to prevent warping from excessive strains, and therefore his patent is entitled to the protection of the patent laws. There is an important difference between the facts of this case and those shown in Howard v. Detroit Stove Works, 150 U. S. 164, 14 Sup. Ct. 68, 37 L. Ed. 1039, cited by defendants’ counsel, wherein the Supreme Court held the Beckwith patent for improvements in stoves invalid. In that case the improvement, consisting of bolting or riveting together sections of a stove, was held invalid because such manner of fastening parts was known at the time of the alleged invention, while in the case at bar, as elsewhere stated, the specific fastening means was an original adaptation. The Emmet patent in suit and the two patents to Fullager, of which much is said hereinafter, were engaged in interference proceedings in the Patent Office, and throughout such proceedings efforts were made to include the Emmet invention in the Fullager claims. In view of this attitude by Fullager and the Allis-Chalmers Company, owner or licensee of the Fullager patents under which the defendants’ turbine was manufactured, I think the principle of Carlson Motor & Truck Co. v. Maxwell-Briscoe Motor Co. (C. C.) 178 Fed. 458, affirmed 197 Fed. 309, 117 C. C. A. 55, is not inapt. There it was substantially held that any doubts as to invention may be overcome by the attitude of a defendant in the Patent Office in claiming that his structure discloses invention and declaring interference with another patent. In support of this holding, see, also, Shuter v. Davis (C. C.) 16 Fed. 564, Roth v. Harris, 168 Fed. 279, 93 C. C. A. 581, and General Knit Fabric Co. v. Steber Mach. Co. 194 Fed. 99, 114 C. C. A. 177. The defendants have introduced in evidence the file wrapper and contents of the Fullager patents No. 696,867, and No. 746,061, and urge that the invalidity of'the Emmet patent is established by reason of the failure on the part of Emmet in the interference proceedings to prove that his invention was reduced to practice by the continuous exercise of diligence from a date preceding the filing of the Fullager application. The material filing dates of the Fullager patents are as follows: No. 696,867, granted April 1, 1902; application filed, April 18, 1901; Ño. 746,061, granted December 8, 1903; application filed, September 16, 1901. The Emmet application was filed February 24, 1902, and was rejected on the first Fullager patent. In conformity with rule of practice No. 75 of the Patent Office, the patentee made the required oath, showing, among other things, a completion of his invention before the Fullager application, and such objection was then withdrawn. According to the evidence, Fullager, at this time, had pending another application for a patent, which was subsequently granted as No. 746,-061; and, as it embodied the Emmet invention, interference was declared, but the proceeding was dissolved on technical grounds. In a second interference proceeding testimony was taken to antedate the Emmet invention showing a disclosure to others in February, 1901. Fullager relied on the filing dates of his applications. Though the examiner of interference decided in favor of Fullager on the ground that Emmet had not, with diligence, reduced his invention to practice, his decision was reversed on appeal by the Board of Examiners in Chief, and later on appeal to the Commissioner of Patents, on the ground that the Fullager application was defective, as it failed to make proper disclosure. The question of priority was next considered by the primary examiner on an application to nullify the Emmet patent and to overcome the objection to patent No. 696,867, which it was claimed disclosed the invention, though it made no claim therefore. A second rejection of some of the Emmet claims was withdrawn, following the filing of additional affidavits to prove diligence in reducing the invention to practice. Other interference proceedings ensued between the Allis-Chalmers Company, assignee, and Emmet, based on Fullager reissues in which were included the precise claims in controversy, but such interference proceedings were later dissolved on technical grounds, and the patent in suit was granted. The conflicting views in the Patent Office regarding the priority of invention and the exercise of diligence in reducing the same to practice leave the questions open ones. The proofs show that from February, 1901, to the following October the complainant was engaged in the construction of a 500-K. W. motor embodying the invention of the Emmet patent; both the witnesses Emmet and Mortensen substantially testifying that the motor was completed in October, 1901, and was continuously operated from such time, and that the work “was pushed as rapidly as possible.” Such latter statement was criticized in the Patent Office as an obvious conclusion, but in the present record there is considerable additional evidence on the subject satisfactorily showing that, following the conception of the invention, sufficient diligence was exercised in reducing it to practice. The invention was conceived by Emmet early in February, 1901, and disclosure thereof was made to others while the work of completing the motor was under way. Immediately upon con ceiving the idea of tenons he determined to adapt the same to the turbine then under construction. Considering the character of the motor, the many separate parts of more or less intricate construction and special design required, and the drawings and blueprints of the various-parts to be assembled, the delays and hindrances from outside sources, and the fact that the invention was an improvement which could not be tested until the various parts of the turbine were assembled, it is believed that whatever delay ensued was not due to the failure to use diligence in reducing the invention to practice. The testimony of Mortensen discloses daily work from February, 1901, to the following October in constructing the motor and in perfecting the invention. He testifies that the work was pushed to the complainant’s utmost capacity, and narrates in detail the steps taken from day to day towards completion, stating that before the motor was completed, and indeed immediately after the invention was conceived, sketches were made of a turbine wheel segment with the buckets and projections thereon, and that within a few days afterwards the segment was completed and exhibited. Tests with weights were immediately made, with the result that it was tentatively ascertained that a cover fastened with tenons to the buckets was sufficiently strong to withstand objectionable vibratory strains and centrifugal forces. Such tests, it-is true, were not positive evidence of reduction to practice, but nevertheless are to be considered upon the question of the exercise of diligence in reducing the invention to practice.

1201935-5414

HEALY, Circuit Judge. This appeal is from a judgment dismissing for insufficiency a petition for release on habeas corpus. The case presents a claim of double jeopardy growing out of two successive trials of appellant before a. naval general court-martial. So far as material to the inquiry, the petition shows the following facts. Petitioner, who is or was an ensign in the Navy, was tried in 1944 before a naval court-martial on charges of murder and assault with intent to commit murder at a naval air station in the Territory of Hawaii.. The murder charge was for the felonious, killing with malice aforethought of an officer named Travis. The charge of assault' with intent to commit murder contained three specifications, the first alleging an assault with a revolver with intent to kill Travis, the second and third like assaults, with intent to kill two other officers, Nason and Osborne. The several charges appear to have involved a single incident in the course of which Travis was shot to death. Petitioner was found guilty of murder and was acquitted of the other charges. • Subsequently it was determined by the-Judge Advocate General’s Office that the-conviction was void for lack of jurisdic tion in the court to try the murder charge, the offense having been committed within the territorial limits of the United States. New charges for the slaying of Travis were subsequently preferred before another court-martial, namely, voluntary manslaughter and involuntary manslaughter. Upon the trial petitioner interposed a plea in bar on the ground that he had once been acquitted by a duly constituted court of assault with intent to murder Travis. This crime, so the plea asserted, was a lesser offense included in manslaughter, hence acquittal of the lesser crime barred a subsequent prosecution for the greater. The plea was denied and on the trial petitioner was convicted of voluntary manslaughter and sentenced to serve a term of five years. Because of the alleged former jeopardy he claims that the naval court lacked jurisdiction to try him for manslaughter, hence he is entitled to the writ, cf. Waite v. Overlade, 7 Cir., 164 F.2d 722, and cases cited. The district court thought it unnecessary to decide the issue of double jeopardy since it was of opinion that the specific guaranties of the Fifth Amendment may not be invoked in cases arising in the land or naval forces of the United States, citing Ex parte Quirin, 317 U.S. 1, 43, 63 S.Ct. 2, 87 L.Ed. 3; Ex parte Milligan, 4 Wall. 2, 123, 71 U.S. 2, 123, 18 L.Ed. 281, and a few other cases. Contrariwise, we assume for the purpose of decision that the petitioner is entitled to the protection of the Amendment’s guaranty against being twice put in jeopardy for the same offense. On that assumption we consider whether he has in truth been exposed to double jeopardy. It is not now seriously urged, as it appears to have been before the naval court, that an assault with intent to commit murder is an ingredient of manslaughter. Such contention could not successfully be maintained. • At common law as by the. statutes generally, including the federal statute, Criminal Code § 274, 18 U.S.C.A. § 453, manslaughter is defined as the unlawful killing of a human being without malice. It is immaterial that an identical factual situation was’ involved in both cases. Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489. Petitioner’s argument here is considerably more complex. It proceeds substantially on the following premise. Simple assault is an element common both to manslaughter and assault with intent to commit murder. On the original trial, while the court was without jurisdiction of the murder charge, it did have jurisdiction of the charge of assault with intent to commit murder, and of this charge petitioner was acquitted. The court could have reduced the more serious offense of which it had jurisdiction to that of simple assault but did not do so, hence petitioner was necessarily acquitted of simple assault also. The identical simple assault of which he was thus acquitted was retried to his prejudice when he was tried for manslaughter. The argument sounds plausible but becomes wholly unconvincing when one recalls the realities of the situation. Since the naval court convicted petitioner of the ■murder of Travis it necessarily determined the fact to be that he assaulted his victim with intent to murder him. Its acquittal of ■ the accused of the latter charge was so at war with its principal verdict that the acquittal can not possibly be regarded as anything other than a means of disposing of a ■charge which the completed murder had swallowed up and so rendered superfluous. The constitutional guaranty against ■double jeopardy concerns itself with matters of substance, not with ingeniously assembled shadows. Petitioner has nothing of substance to complain of. He would appear to have emerged from this chapter of errors in a more favorable position than he would have been in had the errors not been ‘Committed. Affirmed. Consult Articles for the Government of the Navy, 34 U.S.C.A. § 1200, Article 6. This provides: “If any person belonging to any public vessel of the United States commits the crime of murder without the territorial jurisdiction thereof, he may be tried by court-martial and punished with death.” The judgment was subsequently confirmed by the Judge Advocate Gen'eral.

11302849-9233

EDMONDSON, Circuit Judge: This ease involves a petition for review of a decision of the Benefits Review Board (the “Board”) reversing a finding by an Administrative Law Judge (AU) that the claimant was covered by the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. sec. 901, et seq. (“LHWCA” or the “Act”). Also, the claimant requests this court to reverse the AU’s ruling that claimant’s injuries were not work-related. For the following reasons, we believe that the claimant is covered by the LHWCA. Accordingly, we reverse the decision of the Benefits Review Board and remand this matter to the Board for a determination of whether the claimant suffered a compensa-ble injury. Claimant, Frank Sanders, was employed by Alabama Dry Dock & Shipbuilding Co. (“ADDSCO”) from 1973 until he was discharged in 1982. ADDSCO is engaged in the business of shipbuilding, ship repair and shipbreaking. Initially, Sanders worked as a “safety man” for approximately one year before becoming an “Assistant to the Director of Industrial Relations.” As a safety man, Sanders was required, among other things, to board vessels under construction or repair, to inspect the progress of the work and to help maintain safe working conditions in the shipyard. Sanders’ responsibilities as a Labor Relations Assistant were described as follows: “The Labor Relations Assistant shall report directly to the Director of Industrial Relations and shall be responsible for interpreting and advising foremen of the union contract agreements. Also, investigate, mediate and process grievances of union personnel.” ADDSCO’s Brief at 4. In addition, although conflicting testimony was offered as to the amount of time Sanders spent aboard vessels, the AU found that he was “expected to get around the [shipjyard facilities and out of the office every day to show [his] presence to the workers.” AU Decision and Order at 3. These tasks, the AU found, were “directed toward keeping the yard running, and uninterrupted by labor disputes or misconduct of the workers.” Id. In 1975, Sanders began experiencing severe headaches, dizziness, and memory lapses which he claims were related to job stress. Evidence suggested, however, that Sanders’ problems may have resulted from substance abuse and dietary indiscretions, such as, his consumption of as many as twenty-four cola drinks a day. Sanders went on medical leave during the latter half of 1981, after which he worked intermittently until being terminated in May 1982 for being physically incapable of performing his job. When Sanders applied for disability and medical benefits under the Act, ADDSCO contested his eligibility; ADDSCO asserted that: 1) Sanders was not a covered employee under the Act; and 2) Sanders’ disability was not due to an injury arising out of his employment. An AU determined that Sanders’ job brought him within the Act’s coverage but that his injury was not work-related. Sanders appealed to the Benefits Review Board on the issue of causation, and ADDSCO cross-appealed the AU’s finding that Sanders was a covered employee. The Board, with one member dissenting, overturned the AU’s decision. The Board concluded that Sanders was not a covered employee. Because of this conclusion, the Board, however, never reached the issue of whether Sanders’ injury was otherwise compensable under the Act. See Sanders v. Alabama Dry Dock and Shipbuilding Co., 20 BRBS 104 (1987). Sanders then appealed to this court, contending that he was covered by the Act and that the AU erred in concluding his injury was not work-related. The original LHWCA was enacted in 1927 to provide health and medical benefits to longshore men and harbor workers injured during the course of their employment. Prior to 1972, coverage under the Act extended only to injuries sustained by workers on the actual “navigable waters of the United States (including any dry dock).” See Director, OWCP v. Perini North River Assoc., 459 U.S. 297, 299, 108 S.Ct. 634, 637, 74 L.Ed.2d 465 (1983). Some thought this test for determining coverage resulted in unfair and inconsistent applications of the Act based upon “artificial distinctions which plagued admiralty courts for the next forty-five years.” Mississippi Coast Marine, Inc. v. Bosarge, 637 F.2d 994, 996-97 (5th Cir.1981). To remedy this situation, Congress amended the Act in 1972 by replacing the “injury arising on the navigable water” test with a two-part test requiring: (1) that a claimant must have been working on a covered maritime situs within section 3(a) when injured ; and (2) that the claimant must have the status of a covered employee under section 2(3). See generally Northeast Marine Terminal v. Caputo, 432 U.S. 249, 264-65, 97 S.Ct. 2348, 2357-58, 53 L.Ed.2d 320 (1977). These requirements have come to be known as the situs and status test, both of which must be satisfied in order for coverage to attach. Holcomb v. Robert W. Kirk & Assoc., Inc., 655 F.2d 589, 591 (5th Cir. Unit B 1981). The Benefits Review Board ruled that Sanders failed the status test because his “job as an industrial relations specialist did not involve him in any phase of the process of vessel construction.” Therefore, the Board held, Sanders’ employment bore “no relationship to maritime activities covered by the Act and cannot be held to be covered by the Act.” Because the Benefits Review Board is an adjudicatory rather than a policymaking agency, this court need not defer to the Board’s construction of the LHWCA in reviewing the Board’s determinations for errors of law. Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 279 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446 (1980). Accordingly, we will make an independent determination as to whether Sanders is a covered employee. It is undisputed that the situs of Sanders’ alleged injury was upon the “navigable waters of the United States.” 33 U.S.C. sec. 903. Consequently, determining whether Sanders is a covered employee hinges upon whether he has satisfied the “status” test of the Act. Section 2(3) of the Act provides: The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. 33 U.S.C. sec. 902(3). Thus, in order to satisfy the status test, Sanders must be found to have been “engaged in maritime employment.” Initially, ADDSCO argues that Sanders is not covered by the LHWCA because he is a member of the company’s management. This argument is without merit because the Act does not distinguish between persons on this basis. Whatever relevance Sanders’ position may have in other areas of the law, for example, labor relations, the fact that he may be a part of ADDSCO’s management is of no moment in view of section 2(3)'s clear mandate that the LHWCA applies to any person “engaged in maritime employment.” ADDSCO also argues that because Sanders’ job is unenumerated in the statute, he cannot be considered a covered employee. Although the position of “Labor Relations Assistant” is not specifically mentioned in the Act's definition of employees, section 2(3), nonetheless, “extends coverage to occupations beyond those specifically named by the statute.” Trotti & Thompson v. Crawford, 631 F.2d 1214, 1220 (5th Cir.1980); see also Holcomb, 655 F.2d at 591. Additionally, ADDSCO contends that none of the duties and skills of Sanders’ job are uniquely maritime. Therefore, ADDSCO argues, Sanders cannot be considered to be engaged in maritime employment: his job is “typical of support services incidental to any business.... [and are] no more maritime in nature than those managerial personnel who negotiated contracts with union representatives or who interviewed or hired prospective employees.” ADDSCO’s Brief at 12. Under this approach, ADDSCO focuses exclusively upon the skills required by Sanders’ job. This analysis, however, is inconsistent with other decisions by this court involving similar issues. Whether particular job skills are uniquely maritime is not dispositive in determining whether the status test is satisfied, rather the proper focus should be upon whether the purposes served in applying the job skills directly relate to furthering the shipyard concerns of a covered employer. See Trotti & Thompson, 631 F.2d at 1221 n. 16. (“Clearly we must look to the purpose of the work, not solely to the particular skills used.”). For example, in Alabama Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176 (5th Cir.1977), an ADDSCO employee was held to have been engaged in maritime employment even though he was injured while sandblasting a disassembled crane in ADDSCO’s shipyard. The status test was satisfied because, “[m]aintenance of the crane was necessary to enable [ADDSCO] to perform its eventual function of hauling fabricated ship sections to the water’s edge.” Id. at 178. Because Kininess’ job “directly involved” shipbuilding, this court concluded that he was engaged in maritime employment.

3562448-18722

THOMAS, Circuit Judge: This appeal presents the question of whether the United States is estopped from removing an aggravated felon because the government allegedly agreed not to deport him in exchange for Ms cooperation in a federal drug prosecution. Under the circumstances presented by this case, we deny the petition for a writ for review. I Paul Durham-Morgan is a native and citizen of England who entered this country as a non-immigrant visitor on November 8, 1981. He was authorized to remain until December 7, 1981, but exceeded his authorization. In early 1982, Morgan was arrested and charged with various drug trafficking offenses. He was then served with an Order to Show Cause charging Mm as being subject to deportation for over-staying Ms visa. In October 1982, Morgan was convicted of conspiracy to illegally import a controlled substance in violation of 21 U.S.C. §§ 952, 960 and 963; conspiracy to possess a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1); conspiracy to travel in interstate and foreign commerce in aid of racketeering enterprises in violation of 18 U.S.C. §§ 371 and 1952(a)(3)(A); and travel in interstate commerce in aid of racketeering enterprises in violation of 18 U.S.C. § 1952(a)(3)(A). He was sentenced to five years imprisonment, but the sentence was suspended subject to five years of probation. He was released into the custody of the then-immigration and Naturalization Service (“INS”) and was subsequently released under a bond in January 1983. Morgan asserts that he then entered into a cooperation agreement with the government wherein he agreed to testify in support of the U.S. Attorney’s prosecution of a major drug case in Montana in exchange for certain promises regarding his immigration status. In March 1983, then-U.S. Attorney for the District of Montana Pete Dunbar authorized a written request to the Helena, Montana, office of the INS to transfer Morgan’s case from the San Diego Office of the INS and to grant Morgan employment authorization so he could support himself and his wife while helping the U.S. Attorney with his investigation and prosecution. Dunbar authorized a similar letter to the San Diego office of the INS in April 1983. Dunbar substantiated in an affidavit that Morgan was cooperating with authorities, as he alleged. However, Dunbar did not indicate in the affidavit that there was an explicit quid pro quo agreement wherein he agreed to testify in exchange for a grant of permanent residence in the United States. Dunbar described Morgan and his wife as “absolute[ly] necessary key witnesses in one of the most important narcotics cases to arise in the State of Montana.” Dunbar also stated in his letter to the INS District Director in Montana that “[i]t is necessary that [Morgan’s wife’s] visitor permit be extended” and that “[w]e do not have an indictment let alone a trial date in this case so it is difficult to predict how long it will be necessary to continue this proposed arrangement.” Morgan’s case was transferred to Montana, and the government concedes that Morgan was subsequently issued a Form 1-94 with employment authorization. However, neither Dunbar nor Morgan affirm that there was an explicit promise to Morgan of permanent residence in exchange for his testimony. Morgan asserts that the government contacted him again in February 1987 to ascertain his status. In this letter, the government acknowledged that Morgan had been granted permission to remain in the United States on a “temporary basis.” The parties do not dispute that no action was taken by the government between February 1987 and December 2000. In December 2000, the INS served Morgan with notice that his removal proceedings were being recommenced. In May 2001, the government issued a form 1-261 against Morgan, alleging that his 1982 conviction constituted additional grounds for deportation. Through counsel, Morgan then sought to obtain an S visa to remain in the United States. The so-called “S visa” derives from 8 U.S.C. § 1101(a)(15)(S), which gives the Attorney General authority to grant a nonimmigrant visa to a person “in possession of critical reliable information concerning a criminal organization or enterprise ... [who] ... has supplied such information to Federal or State law enforcement authorities or a Federal or State court; and whose presence in the United States the Attorney General determines is essential to the success of an authorized criminal investigation.... ” The Attorney General may adjust the status of an S visa holder to permanent resident if, in his opinion, the information provided by the alien “has substantially contributed to the success” of an investigation or prosecution. 8 U.S.C. § 1255Q). A request for an S visa “may only be filed by a federal or state [law enforcement agency]” through the filing of a Form 1-854, which is then submitted for discretionary approval by the proper government officers as detailed in 8 C.F.R. § 214.2(t)(4). Morgan’s lawyer wrote to several government employees involved in the Montana prosecution on which Morgan cooperated, asking for assistance in obtaining an S visa for Morgan. These efforts were unsuccessful. Though Dunbar provided Morgan with an affidavit attesting to Morgan’s assistance in the prosecution, Morgan claims the remainder of the agencies he contacted were unable to help either because they did not possess records going back that far or because the officials involved in Morgan’s case were no longer working for the government. Unable to induce an agency into granting an actual S visa, Morgan then asked the immigration judge (“IJ”) to grant him a “constructive S visa” because, he claimed, he met all the requirements. The IJ stated that he lacked jurisdiction to issue a “constructive S visa” — only an authorized Law Enforcement Agency could do that. The IJ, acknowledging that this was a novel remedy although not entirely unsympathetic to it, asked if Morgan was going to pursue it further in district court. Morgan’s counsel answered, “Right. I’m going to exhaust all administrative remedies.” Morgan’s counsel explained at that time that “[t]his is a case where we’re going to be continuing with appeals raising due process and constitutional claims. We’re going to be following Matter of Thomas as well as a written coram nobis in district court.” In July 2003, the IJ sustained the factual allegations and charges that Morgan had overstayed his visa, was guilty of an aggravated felony and was convicted of a controlled substances offense. The IJ then ordered Morgan deported to England. Morgan appealed the IJ’s decision to the BIA. Before the BIA, he argued that he was either (1) entitled to a constructive S visa, or (2) entitled to remand to the IJ “due to the ineffective assistance of his former criminal defense attorney by not filing for a Judicial Recommendation Against Deportation (JRAD), which would have made [Morgan] eligible for certain forms of relief from removal.” The BIA dismissed his appeal, holding that “jurisdiction to grant an S visa lies with the Department of Homeland Security ... not with the Immigration Judge” and that Morgan’s ineffective assistance of counsel claim “would lie with the criminal courts, not with the Immigration Judge.” Finally, the BIA stated “with respect to the respondent’s constitutional arguments, we note that, as a general rule, this Board is without jurisdiction to entertain such arguments.” In April 2005, Morgan filed a petition for a writ of habeas corpus in the United States District Court for the District of Arizona. Upon motion of the government and pursuant to the REAL ID Act § 106(c), the district court transferred the action as a petition for review to this Court. II The government argues that we lack jurisdiction over Morgan’s due process and equitable estoppel claims because he did not raise them before the agency and they are therefore unexhausted. Morgan does not claim to have raised these challenges before the IJ or BIA, and for good reason. The agency has no power to grant relief on estoppel or substantive due process claims, and accordingly, we have never required petitioners to exhaust claims of this nature before the agency. Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir.2006); Wang v. Reno, 81 F.3d 808, 814 (9th Cir.1996). Morgan thus did not fail to raise his due process and equitable estoppel claims before the BIA and is not barred from raising them here for the first time, and we have jurisdiction to consider them. III Prior to the Real ID Act, when a petitioner sought to raise substantive due process challenges like Morgan’s or other challenges over which the agency lacked jurisdiction or the power to grant relief, the petitioner would file a habeas petition in federal district court. See, e.g., Alfaro-Reyes v. INS, 224 F.3d 916, 921 (9th Cir.2000) (noting “the availability of habeas review” for deportation cases involving “claims of ... constitutional violations”). If any factual matters needed to be resolved, the district court would hold the necessary hearings, admit any relevant evidence, and resolve them. Pursuant to the Real ID Act, however, jurisdiction over habeas petitions challenging final orders of removal is vested “sole[ly]” in the Courts of Appeal; district courts no longer have habeas jurisdiction over such petitions. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir.2005). This jurisdictional transfer presents procedural difficulties in adjudicating habeas petitions involving colorable legal claims that cannot be asserted before the agency. Petitioners raising viable legal claims are entitled to an evidentiary hearing, see Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir.2006); Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000), but the Courts of Appeal are unable to provide one, see Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1237 (11th Cir.2006) (“[I]t is not the role of appellate courts to make findings of fact.”) (citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986)). On occasion, we have resolved this problem by transferring the case to the district court for fact-finding under 28 U.S.C. § 2347(b)(3), “which authorizes such a transfer when an agency has not held a hearing before taking the complained-of action, and ‘when a hearing is not required by law and a genuine issue of material fact is presented.’ ” See Gallo-Alvarez v. Ashcroft, 266 F.3d 1123, 1129 (9th Cir.2001) (quoting 28 U.S.C. § 2347(b)(3)) (citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 496-97 & n. 2, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (Ginsburg, J., concurring)). While this option remains open to us, we need not avail of it unless the petitioner has alleged a colorable claim upon which relief might be granted. In the habeas context, an evidentiary hearing is only required if (1) the petitioner’s allegations, if proven, would constitute a color-able constitutional claim, and (2) the state court trier of fact has not reliably found the relevant facts after a full and fair hearing. See Correll v. Stewart, 137 F.3d 1404, 1411 (9th Cir.1998). Because it is clear that Morgan has not yet had a full and fair hearing on the facts of his instant claims, the question before us is whether the facts he has alleged, if proven, make out colorable claims for either a due process violation based on estoppel principles or a substantive due process violation under the state-created danger doctrine. A Morgan contends that his due process rights were violated because the government promised Mm relief from deportation if he would cooperate in a drug prosecution. As a general matter of fundamental fairness, promises made by the government to induce either a plea bargain or a cooperation agreement must be fulfilled. See Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir.1985) (citing Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). The agreement, however, must be made by a government official authorized to make it and the promisee must rely on it to his detriment. Thomas v. INS, 35 F.3d 1332, 1337 (9th Cir.1994). A United States Attorney is authorized to enter into cooperation agreements and, in so doing, to make promises that are binding on other Federal agencies. Id. at 1340 (U.S. Attorney could bind INS). However, in this case, Morgan has not alleged that an actual, explicit promise was made to him or, if one was, what the precise terms of that promise were. Although he argues correctly that a United States Attorney has the power to make promises to an alien that are binding on the government, nowhere in his brief or petition does he state that either the U.S. Attorney or anyone else actually made an explicit promise that he would be granted permanent residence in exchange for his cooperation. All he alleges is that he “agreed to testify in support of the United States prosecution of a major drug ease in the State of Montana” and that U.S. Attorney Dunbar arranged for the transfer of Morgan’s immigration proceedings from California to Montana, and arranged for Morgan and his wife to receive employment authorization. Morgan further clarifies that “[t]he government did not specify a fixed period when [his] employment authorization would expire,” and “grant[ed him] permission to remain in the United States on a temporary basis.” (emphasis added). Morgan then states that based on these actions, “it was not unreasonable for [him] to believe that his cooperation with the government meant that he would be allowed to remain in the United States.” Because Morgan has not alleged that an actual promise was made, he has not stated a colorable claim that his due process rights were violated under the Santobello doctrine. Even if everything he alleges is found to be true at an evidentiary hearing, it would not prove that the government’s attempt to remove Mm is M breach of an explicit term of his cooperation agreement. That Morgan believed he would be allowed to remain in the United States indefinitely is not the same as being explicitly promised as much by an authorized agent of the U.S. government. Nor is there any external evidence of a promise. Dunbar’s affidavit says nothing about having made any explicit promise granting Morgan permanent residency in the United States in exchange for Ms cooperation. Under the circumstances, an evi-dentiary hearing on Morgan’s Santobello due process claim is unwarranted. Evi-dentiary hearings in this context, as in habeas, are not meant to be “fishing expeditions for ... petitioners to explore their case in search of its existence.” Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir.1999) (internal quotations omitted). Nor are petitioners such as Morgan automatically entitled to discovery absent evidence that their claims are colorable. Id. at 1068. Because Morgan has not alleged that an explicit promise was made and because the only evidence he has tendered suggests that no such promise was made, we decline to exercise our transfer power to grant an evidentiary hearing on the basis of this theory of relief. B Morgan argues in the alternative that even if no express promise of permanent residence was made, the government’s ac tions — specifically, its delay in seeking to remove him — reasonably led him to believe that he would be permitted to remain in the United States indefinitely and thus the government should be equitably estopped from attempting to remove him. “A party seeking to raise es-toppel against the government must establish affirmative misconduct going beyond mere negligence; even then, estoppel will only apply where the government’s wrongful act will cause a serious injustice, and the public’s interest will not suffer undue damage by imposition of the liability.” Watkins v. U.S. Army, 875 F.2d 699, 707 (9th Cir.1989) (en banc) (internal quotations and alteration in original omitted). “[E]stoppel against the government is unavailable where petitioners have not lost any rights to which they were entitled.” Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir.2000). When estoppel is available, the court then considers its traditional elements, which include that “(1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury.” Watkins, 875 F.2d at 709. Here, Morgan’s only claim of affirmative misconduct is the extreme delay of the INS in seeking to remove him. In Jaa v. INS, 779 F.2d 569 (9th Cir.1986), we considered whether delay by the INS of 58 months was enough to constitute affirmative misconduct. We held that there was no evidence that the government’s delay was on account of anything other than neglect and that “[n]eglect will not support estoppel.” Id. at 572. Likewise, there is no apparent reason for the government’s delay here except neglect. If anything, the government did not follow up on Morgan’s case sooner because immigration authorities were told that his cooperation with the U.S. Attorney in Montana could last for an indefinite period of time. The case Morgan cites, Yoo v. INS, 534 F.2d 1325 (9th Cir.1976), holds only that INS delay can amount to affirmative misconduct when the INS had a clear duty to act and its not acting deprived the alien of a right to relief. Id. at 1328-29. Here, the INS was under no clear duty to deport Morgan, nor did he have a right to relief. Morgan’s allegations do not amount to a constitutional violation even if true. Accordingly, there is no genuine issue of material fact warranting a transfer and hearing. C Morgan also contends that removal to England would violate his substantive due process rights under the state-created danger doctrine. As a general rule, the government is not liable for the actions of third parties. See DeShaney v. Winnebago County, 489 U.S. 189, 195-96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). This rule is modified by two exceptions: “(1) the ‘special relationship’ exception; and (2) the ‘danger creation’ exception.” L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.1992). The special relationship exception comes, as its name suggests, from when the government en ters into a special relationship with a party, such as taking the party into custody or placing him into involuntary hospitalization. Id. The danger creation exception arises when “affirmative conduct on the part of the state” places a party in danger he otherwise would not have been in. Id.

4288331-9699

HELENE N. WHITE, Circuit Judge. After Abraham Morris pled guilty to one count of possession with intent to distribute twenty-eight grams or more of cocaine base, the district court sentenced him as a career offender to 190 months’ imprisonment. Morris appeals, asserting that his sentence is procedurally unreasonable because the district court did not affirmatively solicit argument regarding Morris’s objections to his Pre-Sentence Report (“PSR”), and that the district court erred in finding him a career offender. We AFFIRM. I. Morris was charged with possession with intent to distribute 28' grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and pled guilty to the charged offense. The United States Probation Office prepared Morris’s PSR and determined that Morris’s base offense level under the applicable drug-quantity table was twenty-six, with a two-level enhancement for possession of a firearm. The Probation Office also determined that Morris qualified as a career offender based on his prior convictions of conspiracy to possess with intent to distribute cocaine base and aggravated assault. As a career offender with a three-level reduction for acceptance of responsibility, Morris’s total offense level was thirty-one. His career-offender designation and fifteen criminal-history points both resulted in a criminal- history category of VI, yielding an advisory Guidelines range of 188-235 months. When the PSR was provided to the district court, it noted that there were no unresolved objections. Nonetheless, the day before sentencing, Morris filed a sentencing memorandum that summarily disputed both his classification as a career offender and the firearm enhancement. The entirety of his argument regarding the career-offender designation was as follows: Counsel also disagrees that the [sic] Mr. Morris is a career offender and therefore his offense level should not be at 34 with the reductions for Acceptance of Responsibility and Timely notification. (R. 122: Sentencing Mem., PID 320.) Additionally, although he agreed that his criminal-history category was calculated correctly at VI, Morris argued in his memorandum for a downward departure on the basis that category VI overstated his criminal history. At sentencing, the district court began by asking Morris whether he understood everything in the PSR. Morris said that he did not understand the career-offender designation, and the district court responded it would address that issue shortly. After defense counsel confirmed that the factual statements contained in the PSR as to the conviction offense were accurate, the district court adopted those statements as its findings of fact. The district court then addressed Morris’s objections to the PSR despite the court’s view that those objections “should have been raised during the preparation of the report.” (R. 144: Sentencing Hr’g Tr., PID 406.) Without requesting argument from the parties, the district court overruled Morris’s objections, explaining that Morris was appropriately designated as a career offender due to his prior federal conviction of possession with intent to distribute cocaine base and Ohio conviction of aggravated assault. Having determined that Morris was a career offender, the district court found Morris’s objection to the firearm enhancement moot because it would not change his advisory Guidelines range. The district court also rejected Morris’s argument that his criminal-history category was overstated, noting the serious nature of his prior offenses, including numerous domestic-violence offenses. The district court then invited defense counsel to speak in mitigation. Counsel argued for an 84-month sentence based on the relatively small amount of drugs involved, Morris’s co-defendant’s sentence of 84 months’ imprisonment) and the fact that several of Morris’s prior convictions occurred in the distant past. After considering defense counsel’s arguments and the 18 U.S.C. § 3553(a) factors, the district court sentenced Morris to 190 months in prison. At the end of the hearing, the district court asked if either party had objections not previously raised, and both responded “no,” Morris timely appealed. II. A. Morris first argues that his sentence is procedurally unreasonable because the district court violated Federal Rule of Criminal Procedure 32(i)(l)(C) by not allowing defense counsel to comment on the PSR prior to overruling Morris’s objections. That Rule provides that “[a]t sentencing, the court ... must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence.” Fed.R.Crim.P. 32(i)(l)(C). Morris concedes that because he did not object to this purported procedural error at sentencing, we must limit our review to plain error. See United States v. Lumbard, 706 F.3d 716, 721 (6th Cir.2013). Thus, Morris must show a clear or obvious error that affected his substantial rights and “seriously affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Massey, 663 F.3d 862, 866 (6th Cir.2011) (citing United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010)). In United States v. Tolbert, the defendant argued that the district court violated Rule 32 by failing to follow a court tradition of soliciting argument prior to overruling the defendant’s objection to his classification as a gang member. 459 Fed.Appx. 541, 546 (6th Cir.2012). After noting that the defendant cited no authority for his position, the court observed that, in fact, the defendant “did have an opportunity ‘to comment on the probation officer’s determinations,’” including during the period designated for comments from the parties before the sentence was determined, and concluded that “[t]he fact that he failed to recognize or utilize these opportunities does not mean that the district court violated Rule 32(i)(l)(C).” Id. (quoting Fed. R.Crim.P. 32(i)(l)(C)). Similarly, here, defense counsel had the opportunity to comment on the probation officer’s determinations during the period allowed for argument regarding the appropriate sentence. Cf. United States v. Mylar, 971 F.2d 706, 707 (11th Cir.1992) (per curiam) (finding a violation of Rule 32 where the district court affirmatively precluded defense counsel from arguing in support of his objection to a sentencing enhancement). Further, because of the conclusory nature of defense counsel’s written objection to the career-offender designation and his decision not to offer anything further in support of his objection even when he was offered the opportunity for argument, it is not clear whether counsel even had anything further to add on the subject. Accordingly, although Tolbert is unpublished and therefore not binding, in the absence of contrary authority and under the facts of this case, we conclude the district court did not commit a plain or obvious error by not affirmatively soliciting argument prior to overruling Morris’s objections. Moreover, as we explain below, the district court properly concluded that Morris was a career offender, and thus neither the firearm enhancement nor his criminal-history points affected the calculation of his advisory Guidelines range. See USSG § 4Bl.l(b). Therefore, Morris cannot show that the district court's failure to affirmatively request argument from defense counsel before addressing the objections prejudiced his substantial rights. B. Morris argues that he does not qualify as a career offender under USSG § 4B1.1 because his aggravated-assault conviction does not constitute a “crime of violence,” and because the record was insufficient for the district court to determine the elements of the offense. We generally review .de novo a district court’s determination that a defendant is a career offender, United States v. Ozier, 796 F.3d 597, 599 (6th Cir.2015) (citing United States v. Bak er, 559 F.3d 443, 450 (6th Cir.2009)), but the government argues that plain-error review should apply here because of the nonspecific nature of Morris’s one-sentence objection in his sentencing memorandum. However, both the government and district court construed Morris’s objection as a challenge to whether his prior convictions qualified him as a career offender and addressed that argument in response. Accordingly, notwithstanding the conclusory nature of Morris’s objection, we review this claim de novo. See United States v. Prater, 766 F.3d 501, 506-07 (6th Cir.2014) (finding that a sparsely-worded objection to a designation as an armed career criminal preserved the defendant’s argument on appeal that his prior offenses did not constitute “violent felonies” under the Armed Career Criminal Act because the district court understood the basis for the objection and addressed it). However, Morris’s separate argument that the record was insufficient for the district court to make that decision was not raised or addressed below and will be reviewed for plain error. 1. Morris argues that the second predicate offense upon which the district court relied — aggravated assault in violation of Ohio Revised Code § 2903.12 — is not a “crime of violence” under the Guidelines. A “crime of violence” is defined as: any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. USSG § 4331.2(a).

899767-21617

HICKENLOOPER, Circuit Judge. The defendants in the court below appeal from a decree finding that certain structures manufactured by them prior to April 21, 1928, embodied the inventions of Letters Patent No. 1,395,362, issued to Charles F. Rub-sam, November 1, 1921, and Nos. 1,576,225 and 1,576,226, issued to the same patentee on March 9,1926; that for that reason plaintiffs were entitled to recover stipulated royalties under a license agreement entered into May 4, 1923, and terminated April 21, 1928; and that the above-mentioned patents were valid in respect to the claims in suit, and were infringed by structures manufactured and sold by defendants after the termination of the license agreement. Before considering the questions of the validity and infringement of the patents, we pause to inquire into the District Court’s jurisdiction of the cause of action for the recovery of royalties under the canceled license agreement. No diversity of citizenship existed as in Ruby v. Ebsary Gypsum Co., Inc., 36 F.(2d) 244 (D. C. N. Y.), cited by plaintiffs in support of the claim of jurisdiction. The question of general equity jurisdiction, upheld by the court in Shaffer v. Carter et al., 252 U. S. 37, 40 S. Ct. 221, 64 L. Ed. 445, also relied upon by appellees, is not here involved. The issue is solely one of federal jurisdiction. In a number of cases this court has decided that where a patent is held valid and infringed, the unfair competition feature “arising out of that infringement may be included in an accounting for profits and damages, though the parties are citizens of the same state” [N. O. Nelson Mfg. Co. v. F. E. Myers & Bro. Co. (C. C. A.) 25 F.(2d) 659, 665; Detroit Showcase Co. v. Kawneer Mfg. Co. (C. C. A.) 250 F. 234, 239 ; K-W Ignition Co. v. Temco Electrie Motor Co. (C. C. A.) 243 F. 588, 591, and cases there cited], and we do not think that we need again pass upon the soundness of this doctrine, for it seems to us that the joinder in one bill of two entirely separate and distinct causes of action, under Equity Rule 26 (28 USCA § 723), even assuming that both are within the general equity jurisdiction of the court, is a very different matter from allowing relief in a patent infringement suit for unfair competition “arising out of that infringement” which is the subject of suit, and to which the unfair competition is therefore wholly incidental. In the first ease there is, in substance, the consolidation of two separate actions; in the second case this feature is absent. In the one, there should be federal jurisdiction of both causes of action; in the other, jurisdiction of the primary cause of action is probably enough. No contention is made on behalf of the plaintiffs that there was, or could have been, infringement by any of the defendants prior to the cancellation of the license agreement. An action for the recovery of royalties, it is also clear, is a suit to enforce a contract, and “the rule is well settled that, if the suit be brought to enforce or set aside a contract, though such contract be connected with a patent, it is not a suit under the patent laws, and jurisdiction of the circuit court [now district court] can only be maintained upon the ground of diversity of citizenship.” Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U. S. 282, 285, 22 S. Ct. 681, 682, 46 L. Ed. 910. In the case just cited it was also hold (page 290 of 185 U. S., 22 S. Ct. 681) that if the licensee fails to observe the conditions of its license pertaining to the payment of royalties, precisely the present case, the licensor must resort to the state courts if he would maintain a suit for breach of the contract, unless, of course, there be diversity of citizenship. Again, in Geneva Furniture Mfg. Co. v. S. Karpen & Bros., 238 U. S. 254, 259, 35 S. Ct. 788, 789, 59 L. Ed. 1295, the •court expressly held that so much of the bill as charged the defendants with contributory infringement and sought relief on that ground presented a case arising under the patent laws, of which the District Court should have taken jurisdiction; but that the other portions of the bill, stating causes of action in tort and for breach of contract, did not arise under the patent laws, and as to them the federal court had no jurisdiction. The language of the court upon the subject of jurisdiction is peculiarly applicable to the present case: “It hardly needs statement that the jurisdiction as limited and fixed by Congress cannot be enlarged or extended by uniting in a single suit causes of action of which the court is without jurisdiction with one of which it has jurisdiction. Upon this point the rule otherwise prevailing respecting the joinder of causes of action in suits in equity must, of course, yield to the jurisdictional statute.” To the same effect see Hurn v. Oursler, 53 S. Ct. 586, 77 L. Ed. - (decided April 17, 1933); Vose v. Roebuck Weather Strip & Wire Screen Co., 210 F. 687 (D. C. N. Y.); General Baking Co. v. Shults Bread Co., 288 F. 954 (D. C. N. Y.). We conclude that the District Court erred in retaining jurisdiction of the cause of action for breach of contract and accounting under the license agreement. II. Since, under the authorities cited, .the court below had jurisdiction of the patent infringement aspect of the case, we turn now to a consideration of the patents. All cover automobile wheel structures of the demountable rim type. Prior to Rubsam it had long been common practice to mount the rim upon the wheel by first passing the inwardly-extending valve stem of the pneumatic tire, carried on the rim, through á hole which was provided in the felly for that purpose, tilting the inner side of the rim, next to the vehicle, upon the inner flange of a metal felly band, and swinging the tire so pivoted transversely of the wheel and into vertical position. Clamps were then adjusted to hold the rim and tire securely to the felly. It was also well known that in performing this operation the rim should be centered, as nearly as could be done, upon the wheel, and that.if there was radial clearance and the clamps were not carefully and evenly tightened, there would be danger that the inner edge of the rim would slip upon the flange of the felly band, producing a detrimental angular misplacement or “cocking” of the tire. Various other paten-tees had conceived means for promoting the desired close-fitting concentricity of rim and wheel by the use of raised segmental or tapered bearing sm-faees on the outer edge of the rim (see, among others, patent to Lambert, No. 982,143; patent to Baker, No. 1,-095,953; patent to Baker, No. 1,123,065; patent to Harbridge, No. 1,165,096; patent to Wagenhorst, No. 1,231,314; patent to Jobski, No. 1,298,050; and patent to Man-ternach, No. 1,336,531); but in respect of all of these patents it is said, and we see no reason to doubt the statement, that because of the location of the raised bearing surfaces upon the rim, a certain amount of clearance between them and the felly band was necessary in order to permit the rim to be swung into place, or, at least, that such clearance was always provided in practice. Thus one main feature of novelty in the disclosures of the Rubsam patent No. 1,395,-362, hereinafter referred to as his first patent, is said to be that the contact between raised segmental bearing members interposed between the rim and felly is a heavy binding contact in order better to secure concentricity of the rim and wheel and prevent cocking during the tightening of the clamps. Rubsam was obviously not entitled to, and did not attempt to seeure, a patent for this result, which at best differed from former patented structures only in degree; but to a patent, if at all, for the means by which this “true concen-tricity” was obtained. To produce this result Rubsam utilized the upper bearing member, adjacent both sides of the valve stem, suggested by Manternaeh. This extended around approximately the upper 180° of the wheel. He also provided a raised segmental bearing member approximately 60° in length On the outer, lower edge of the rim, diametrically opposite the valve stem opening. Adjacent this lower bearing member, on either side, substantial clearance spaces were provided to complete the circle, that is, each of these clearance spaces was approximately 60° in length. In respect of the upper bearing surface h'e says: “® ® ® The same may, if desired, be in sections, that is, divided into a plurality of ares preferably not extending through substantially more than 180° of the external circumference of the wheel body.” Of the lower bearing surface he says that it “is sufficiently less than 180° in extent [but how much less does not appear] to provide one or more bridges or gaps 21, 21, where flexing- of the rim when in position on the wheel body may take place.” The drawings disclose a structure in which there is apparently no flexing or flattening of the rim at the clearance spaces, and while the specification provides that “the external diameter of the wheel body to a point thereof corresponding to a raised cylindrical bearing surface, such as 19, is substantially greater than the corresponding internal diameter of said rim " ® c',” it must be apparent to any one familiar with mechanics that if the exterior diameter of the wheel body just equals the internal diameter of the rim at the bearing surface points, the desired binding effect will exist, although in lesser degree, until the rim reaches its final vertical position, causing the rim to “snap” into place, and offering resistance to any lateral displacement. In our opinion, therefore, the first patent disclosed, although it did not claim, the subject-matter of the inventions of patents Nos. 1,576,225 and 1,576,226, hereinafter referred to as the second and third patents, in so far as this subject-matter of the later inventions consisted of either the positioning of the bearing surfaces, or the equality of length of the diameters of the rim and wheel body, or the combination of both of these structural elements, and we see nothing more than mechanical ability in the introduction of the other elements of construction in the later patents. III. The first patent was issued November 1, 1921. Application for the second patent was filed March 26, 1924, and application for the third patent was filed February 18, 1925. The structures of the last two mentioned patents are designed with reference to felly bands of the metal channel type. In the second patent segments of the outer flange of the channel felly band are cut away so as to provide clearances, the raised segmental bearing surfaces are thus upon the outer flange of the felly, and the diameter of the inner periphery of the demountable rim is specified as “substantially the same” as the diameter of the wheel body at the raised portions of the flange. The only other difference in the structure is that the single upper bearing surface, extending through substantially 180° of the wheel circumference in the first patent, is replaced by two much shorter bearing surfaces separated by approximately 120°, on centers, and the lower bearing surface is likewise replaced by a bearing surface of much smaller extent. These changes were stated to be optional in the first patent. In the third patent the same three bearing surfaces are retained, but they, and the clearances between them, are produced by circumferential depressions stamped in the rim, the outer flange of the channel felly band being radially shorter at all points than the in-ker flange. The fundamental theory of all three patents is the same, and is admitted so to be by plaintiffs’ expert. The specification of the first patent expressly provided that the upper bearing surface might be divided into the two upper, widely separated bearing surfaces of the later patents, and in all of them a more or less heavily binding contact was substituted at points where before, it is said, there had been radial clearance. In so far, therefore, as these features comprised the invention of the later patents, the subject-matter was disclosed in the publication of the first patent. This publication would effectively preclude the patentee from securing a valid patent for the invention so disclosed, or from procuring a reissue, except upon an application filed within two years of the date upon which the first patent issued, or upon the continuation of an application pending within such period. Directoplate Corp. v. Donaldson Lithographing Co., 51 F.(2d) 199, 203 (C. C. A. 6). To meet this objection it is urged that the second patent contains the statement: “The present application is, in part, a continuation of an application filed by me October 9, 1919, Serial No. 3219,500,” and that the second and third patent applications were obviously copending. In support of the quoted statement plaintiffs introduced into evidence a copy of the “Forfeited and Abandoned Application of Charles F. Rubsam, filed October 9, 1919, Serial No. 329,500,” but there is no evidence of when or for what reason this application was forfeited and abandoned. Since it was filed prior to the renewal of the application upon which the first patent issued, and more than two years prior to the date of such issue, the natural assumption is that it was abandoned upon the allowance of the claims of the first patent. We do not think that a presumption that the abandoned application was pending and unabandoned when the applications for the last two patents were filed can be said to arise merely from the statement in the application of the later patent. The entire file wrapper of the abandoned application was available and the fact might thus have been conclusively shown, but was not. In the absence of such proofs we are of the opinion that plaintiffs have not established the fact that the later application was, even in part, a valid continuation of the abandoned application. To have it so operate the second application must have been filed before the abandonment and forfeiture of the first, and it is this which has not been shown. In Hayes-Young Tie Plate Co. v. St. Louis Transit Co., 137 F. 80, 82 (C. C. A. 8) the court says: “But the abandonment of an application destroys the continuity of the solicitation of the patent. After abandonment a subsequent application institutes a new and independent proceeding, and the two years’ public use or sale [here publication] which may invalidate the patent issued upon it must be counted from the filing of the later application.”. This same principle is announced in Rosenberg v. Carr Fastener Co., 51 F.(2d) 1014, 1016 (C. C. A. 2). Numerous eases are cited by both courts to support the text. Since, therefore, the subject-matter of the second and third patents was published in the first, with only such changes in form or design as were well within the realm of mechanical selection [Cf. Beck-Frost Corp. v. Ford Motor Co., 44 F.(2d) 519 (C. C. A. 6)], the plaintiffs’ ease must stand or fall on the first patent in suit. As was held in Saranac Automatic Machine Corp. v. Wirebounds Patents Co., 282 U. S. 704, 51 S. Ct. 232, 75 L. Ed. 634, the monopoly of an earlier patent may not be extended by subsequent patents which disclose the invention of the earlier patent and, in addition, merely mechanical improvements which do not in themselves involve invention. IV. Claims 4, 5, and 6 of the first patent are in suit. Claim 6 may be taken as typical and is printed in the margin. We pass with out detailed consideration the questions of anticipation, and whether Rubsam’s concept involved an exercise of the inventive faculty or was merely the carrying forward of an old idea, any elements of change differing from the prior art only in degree, for we think that the validity of the claims in suit may and should be decided upon their sufficiency under the provisions of Revised Statutes, § 4888 (35 USCA § 33). Perhaps it is only necessary to remark here that the art was a crowded one; that the end to be achieved had long been recognized as desirable; that others had, in large measure at least, accomplished the same purpose as Rubsam and by much the same means; and that the patentee in this action is therefore not entitled to that liberality in the construction or interpretation of his claims, if that question be involved, which would be accorded to him in the case of a more generic patent. As we have probably already indicated, we think that the only elements of real merit and of patentable novelty in Rubsam’s concept lay in the location given the single raised bearing surface in the lower arc of the rim and in its very limited circumferential length, with extensive clearance spaces on both sides; and did not consist at all in placing the bearing surfaces on the outer edge of the rim, or in making them segmental or arcuate in shape. These latter features were already old in the art, and practically all the prior inventors had sought to attain a “close fit” or “true concentricity” by making the length of the diameters of the rim and wheel body, at such bearing surface points, substantially equal. But it is argued that it was impossible to do this in the prior art structures, as, for example, in the structure of the patent to Baker, No. 1,095,953, because of the location of bearing surfaces at points approximately 135°, 180°, and 225° from the pivot or valve stem opening. These, it is said, would block the mounting of the rim. In other words, it is now urged that the very essence of the invention lies in the location and limited circumferential extent of the bearing surfaces in the lower are, and that it is due to these structural features, and these alone, that the device is operative and that the close fit or true concentricity is obtainable without provision for additional radial clearance at the bearing points. Evidence was offered tending to support this contention, but whether due to a misconception by the patentee of the nature of his invention, or to inadvertence or mistake, the invention is neither so described in the specification nor so claimed. Under the provisions of Revised Statutes, § 4888, a patentee’s right to a monopoly is limited to that which is described and claimed. We have frequently held that, in the language of the section, the patentee must “particularly point out and distinctly claim” that which he considers his invention or discovery. That which is not so claimed, in the original patent or by reissue, is irrevocably abandoned to the public. Directoplate Corp. v. Donaldson Lithographing Co., supra. To this extent, at least, the claims measure the invention. Cf. Steel Wheel Corp. v. B. F. Goodrich Rubber Co., 42 F.(2d) 406 (C. C. A. 6); Sun Ray Gas Corp. v. Bellows-Claude Neon Co., 49 F.(2d) 886 (C. C. A. 6); Bettendorf Co. v. Ohio Steel Foundry Co., 56 F.(2d) 777, 779 (C. C. A. 6). Doubtless, as we have stated in these decisions and in many others, the court will liberally construe the claims of a patent for a meritorious invention, so as to protect the patentee in its enjoyment in proportion to his contribution to the art, but there must at least be some attempt to claim the combination of elements or structural features later relied upon as constituting such invention, and some teaching in the specification that in their size, shape, location, combination, arrangement, or co-operating functions is to be found the forward step in the art, the departure from that which is old, the novelty and utility which merit the grant of a patent. Otherwise the mandate of section 4888 would be a mere nullity. Just as there is. no room for construction if the claims are unambiguous, so also, even though some ambiguity may exist as to the precise meaning of the claims, the court may go no further in removing that ambiguity than is permitted by an application of the teachings of the patent to the language used in the claims. Compare Rhamstine v. Sparks-Withington Co., 58 F.(2d) 583 (C. C. A. 6). Construction may not serve the function of reissue. The claims may not thus be redrafted to cover a different combination of ele ments; but tbe specification may be used only as the lexicon by which the true definition of the words used in the claims is to be ascertained. In the instant case a limitation’in the size and location of the hearing surfaces was of controlling importance to a definition of the invention, as that matter is now presented to us, but even under the most liberal construction we are unable to discern an intent to so claim it. The obvious teaching of the patent is that by making the diameter of the wheel, at the bearing surface points, “substantially greater than the diameter of the rim,” and by providing adjacent clearance spaces for the physical distortion of the rim during mounting, the rim might be forced into position and the use of clamps to hold it there might be eliminated or their number greatly reduced. The defendants do not follow these practices, and the claims do not cover them. It is true that there is a call for means “for permitting” the rim to be swung “into position” upon the wheel body, but in view of the teachings of the patent and the remainder of the claim we are constrained to regard this as merely a call for raised bearing surfaces interposed between the rim and wheel body, without regard to number or precise location, thus holding the rim “in the position” of concentricity after it had been mounted. We recognize in' it no intent to specify the number, location or circumferential extent of the bearing surfaces in the lower are.

4191155-8490

ORDER WM. R. WILSON, JR., District Judge. Pending is Plaintiffs Motion for Partial Summary Judgment (Doc. No. 16). De fendants have responded. As set out below, Plaintiffs Motion for Partial Summary Judgment is DENIED. I. BACKGROUND Plaintiff was hired by Defendant Progressive Foam Technologies, Inc. (“Progressive”) on March 15, 2006, and suffered a non-work related injury on December 3, 2006. In a January 3, 2007 “Response to Employee Request for Family or Medical Leave,” Progressive informed Plaintiff that he was “eligible for leave under the FMLA” and that the “requested leave will be counted against your annual FMLA leave entitlement.” On January 15, 2007, Plaintiff submitted a “Leave of Absence Application” requesting leave “to begin 1-3-07 and to end 2-5-07” for “Personal Medical” reasons. Plaintiff also submitted a doctor’s statement that indicated that he could do “no work” for “4 weeks.” In a letter dated February 21, 2007, Plaintiffs doctor informed Progressive that Plaintiff had undergone surgery on February 6, 2007, and could “return to work April 10, 2007 with no restrictions.” On February 26, 2007, Progressive notified Plaintiff that he was behind on insurance premiums and reminded him that on January 5, 2007, he had “signed an agreement saying [he was] placed on FMLA and the company would pay [his] premiums so that [his] insurance could continue.” Progressive sent a second, similar letter on March 21, 2007, because Plaintiff still had not paid his share of the premiums. On March 16, 2007, Progressive informed Plaintiff that “as of 3/28/07 [his] 12 weeks of leave under the federal Family and Medical Leave Act [would] be exhausted,” but that his leave would be extended for an additional thirty days based on his physician’s statement that Plaintiff could not return to work until April 10, 2007. On March 29, 2007, Plaintiffs physician informed Progressive that Plaintiff had undergone another surgery, and that Plaintiffs return-to-work date would be April 23, 2007. Plaintiffs physician, again, on April 10, 2007, moved Plaintiffs return to work date — to May 1, 2007. Progressive terminated Plaintiffs employment on May 1, 2007. Progressive informed Plaintiff that his “leave of absence [had] been exhausted” and that Progressive was uncertain of Plaintiffs “status to return to work.” Progressive notified Plaintiff that it was “putting [his] employment on in-active [sic] status” and that his “benefits will be terminated at the end of the business day 4/30/07____” On May 15, 2007, Plaintiffs physician notified Progressive that Plaintiff would not be able to return to work for two more months' — until July 15, 2007. Plaintiff filed this lawsuit on December 3, 2008. II. DISCUSSION The Family Medical Leave Act entitles an “eligible employee ... to a total of 12 workweeks of leave during any 12-month period ... [b]ecause of a serious health condition that makes the employee unable to perform the functions” of the employee’s job. An “eligible employee” is one who has been employed for at least twelve months, and worked for at least 1,250 hours during the twelve-month period. The material facts are undisputed: (1) in January, 2007, Plaintiff had worked for Progressive less than a year and was not an “eligible employee” under the terms of the FMLA; (2) Plaintiff suffered from “a health condition,” ie., a back injury that required surgery, that made him unable to perform his job; and (3) Progressive allowed Plaintiff 16 weeks of leave (twelve weeks of FMLA, plus four additional weeks) before terminating his employment on May 1, 2007. Plaintiff argues that, because he was not an “eligible employee” under the FMLA when his leave commenced on January 3, 2007, none of the leave used between then and March 16, 2007 (Plaintiffs one year anniversary) can be counted against his twelve weeks of FMLA leave. In other words, Plaintiff contends that his leave did not, and could not have become FMLA leave until March 16, 2007, the date on which he was entitled to FMLA leave. I disagree. Whether knowingly or in error, Progressive determined that Plaintiff was an “eligible employee” entitled to FMLA leave starting January 3, 2007, and chose to extend FMLA leave to an employee who, statutorily, was not entitled to it. From that point on, Plaintiff was considered to be on FMLA leave Progressive was not required to grant Plaintiff twelve weeks of FMLA leave before he had worked for one year. However, Progressive was entitled to adopt a more liberal policy, and to allow Plaintiff to take FMLA leave before his statutory eligibility. An employer may choose to adopt a more generous leave policy and permit FMLA leave before the twelve month requirement is met. The FMLA’s twelve month employment provision was intended to protect employers, not employees. Allowing an employer to waive the twelve month employment requirement comports with the FMLA’s language that “nothing in the Act is intended to discourage employers from adopting or retaining more generous leave policies.” Equity trumps Plaintiffs position. It is well settled that equitable estoppel is an available remedy in FMLA eases. However, the typical situation in- volves an employer designating an employee’s leave as FMLA leave, the employee’s reliance on the employer’s representations, and the employer’s later argument that the employee did not qualify for FMLA leave. Just as an employer is prevented from granting FMLA leave then recanting, later arguing that the leave was not under the FMLA, an employee, for the same equitable reasons, cannot take leave- — that all parties believe to be FMLA leave- — only later to recant this position and demand twelve additional weeks. Plaintiff asserts that “[l]eave that occurs before an employee becomes eligible does not count toward the 12 weeks entitled.” But Plaintiff provided no law to support this position. Additionally, Plaintiff contends that his absences “were not FMLA qualifying due to Plaintiff not yet being an ‘eligible employee,’ ” and could not be counted against Plaintiffs “12 workweek allotment.” However, Plaintiffs argument incorrectly overlaps “FMLA qualifying” absences with “FMLA eligibility.” Once Progressive determined that Plaintiff was “eligible” for FMLA leave (even though Progressive was not obligated to do so at that point) and that the leave was for “a serious health condition” (“qualifying” Plaintiff for FMLA), Plaintiff was entitled to twelve weeks of FMLA leave. In keeping with Congress’s intent of permitting more liberal leave policies, an employer should be permitted to waive the twelve month work requirement in order to provide an employee with FMLA leave before the employee is statutorily entitled to the leave. Notably, if Progressive had not waived the requirement in this case, Plaintiff likely would have been terminated for excessive absences before he ever became entitled to FMLA leave. Additionally, not only did Progressive grant Plaintiff the full twelve weeks of leave provided under the FMLA, it permitted Plaintiff to take four additional weeks of leave. Punishing employers — as Plaintiff would have me do here — for adopting a more generous leave policy than the law requires is contrary to the purpose of the FMLA. Ultimately, adopting Plaintiffs position could adversely affect employees, ie., employers would be less likely to adopt leave policies more generous than those mandated by the FMLA. CONCLUSION Based on the findings of fact and conclusions of law above, Plaintiffs Motion for Partial Summary Judgment is DENIED. IT IS SO ORDERED. . Doc. No. 20. . Doc. No. 20-5 (emphasis in original). . Doc. No. 20-6. . Doc. No. 20-7. . Doc. No. 20-8. . Doc. No. 20-9. . Doc. No. 20-4 . Doc. No. 20-12. . Id. . Doc. No. 20-15. . Doc. No. 20-16. . Doc. No. 15. . Doc. No. 20-17. . Id. . Doc. No. 20-18. . Doc. No. 1. . 29 U.S.C. § 2612(a)(1)(D). . 29 U.S.C. § 2611(2)(A). . See 29 U.S.C. § 2611(2)(A). . Doc. No. 16. . Doc. Nos. 20-2, 20-5, 20-9, 20-12. . Fleece v. BFS Diversified, LLC, 618 F.Supp.2d 929, 934 (S.D.Ind.2008) ("The language of the FMLA and its legislative history show that the twelve month and 1,250 hour requirements for eligibility were a critical part of the legislative compromise between the interests of employees and employers. See 139 Cong. Rec. H396-03, at 398 (Feb. 3, 1993) (statement of Rep. Roemer) (noting that the twelve month employment requirement protected the interests of employers).”). . 29 C.F.R. § 825.700(b).

1286358-7162

MAZZONE, District Judge. This case was remanded for specific findings setting forth the reasons this Court entered judgment on fewer than all claims pursuant to Federal Rule of Civil Procedure 54(b). American Automobile Manufacturers Association v. Massachusetts Department of Environmental Protection, 98-1036, slip op. (1st, Cir. January 14, 1998). The Third Amended Complaint in this action challenged regulations adopted by the Defendant Commissioner of the Department of Environmental Protection (the “DEP”) re lating to zero emission vehicles (“ZEVs”) in the period from 1998 to 2000. The regulations, as amended in 1996, required the seven largest automakers to develop and place into service in Massachusetts increasing numbers of ZEVs in model years 1998 through 2000, with the goal of making ZEVs commercially available in 2003. The regulations also required the automakers to file periodic reports to the DEP regarding actual and projected delivery and production of ZEVs. The Third Amended Complaint contained four claims for relief under the federal Clean Air Act (“CAA”), 42 U.S.C. §§ 7505 et seq. Count I alleged that the DEP’s regulations violated the “identicality” requirement of section 177, 42 U.S.C. § 7507, and thus were preempted by section 209(a), 42 U.S.C. § 7543(a). Count II alleged that the DEP’s regulations lacked a valid preemption waiver and thus were preempted by section 209(a). Count III alleged that the DEP’s regulations were preempted by section 249(f)(4), 42 U.S.C. § 7549(f)(4). Lastly, Count IV alleged that the DEP’s regulations were impliedly preempted because they stand as an obstacle to the Congressional objectives underlying sections 177 and 209 of the Clean Air Act. Because the DEP’s regulations first apply to the calendar year 1998, the parties desired an efficient and expeditious resolution of the Plaintiffs’ (“Automakers”) claim that the regulations were invalid. During a status conference before the Court, the parties agreed that they could proceed with summary judgment motions on Counts I and II, the claims that the DEP’s regulations were preempted by CAA §§ 177 and 209. They could not agree to proceed with summary judgment on Count III without further factual investigation and potential discovery. The summary judgment motions filed by the parties in fact did not seek any resolution of Count III. On October 15, 1997, this Court granted the Plaintiffs’ Motion for Summary Judgment on Counts I and II, and denied the Defendant’s Cross-Motion for Summary Judgment. Subsequently, on October 29, 1997, this Court entered judgment in favor of Plaintiffs as to Counts I, II, and IV of the Third Amended Complaint. Although the implied preemption claim in Count IV was not specifically included in the cross-motions for summary judgment, it involved the same statutory provisions as the express preemption claims in Counts I and II, namely, CAA §§ 177 and 209(a). After this Court determined that the DEP’s regulations were preempted expressly by sections 177 and 209(a), the implied preemption claim in Count IV became redundant. The claim in Count III, alleging that the DEP’s regulations are preempted by CAA § 249, remains pending, and the parties have not conducted any discovery on this claim. Section 249 prohibits any non-California state from subjecting vehicle manufacturers “to penalties or sanctions for failing to produce or sell clean-fuel vehicles,” a term which is defined to include electric vehicles. 42 U.S.C. §§ 7589(f)(4), 7581. The Automakers allege that electric vehicles are the only vehicles that are anticipated to meet the ZEV emission standard in the foreseeable future, such that § 249 preempts the DEP’s ZEV regulations. Third Amended Complaint, pars. 45-48. Pursuant to Federal Rule of Civil Procedure 54(b), this Court entered judgment as to fewer than all of the claims- of the parties after finding that there was “no just reason for delay.” Fed.R.Civ.P. 54(b). I faked, however, to make specific findings setting forth the reasons for granting Rule 54(b) certification. The First Circuit has articulated certain criteria which must be satisfied by a district court before it can certify a final judgment pursuant to Rule 54(b). First, the district court must assess whether the judgment has the “ ‘requisite aspects of finality.’ ” Darr v. Muratore, 8 F.3d 854, 862 (1st Cir.1993) (quoting Spiegel v. Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir.1988)). Second, the district court should consider any interrelationship among the adjudicated and unadjudicated claims “ ‘so as to prevent piecemeal appeals in eases which should be reviewed only as single units.’ ” Spiegel, 843 F.2d at 43 (quoting Pahlavi v. Palandjian, 744 F.2d 902, 904 n. 5 (1st Cir.1984)). Third, the district court must make an “assessment of the equities” to determine whether there is a justifiable reason for delay in entering the judgment. Darr, 8 F.3d at 862. This Court has determined that the three factors for certification of its partial final judgment under Rule 54(b) are satisfied. First, this Court’s judgment on Counts I, II, and IV of the Third Amended Complaint is final. A judgment is considered final if it disposes of all the rights and liabilities of at least one party as to at least one individual claim entered in a multiple claims action. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980); State Street Bank & Trust Co. v. Brockrim, Inc., 87 F.3d 1487, 1489 (1st Cir.1996). Whether a decision is final is governed by 28 U.S.C. § 1291. Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d 322, 325 (1st Cir.1988). Pursuant to § 1291, a decision- is considered final if it “ ‘ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.’ ” State Street Bank & Trust Co., 87 F.3d at 1490 (quoting Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S.Ct. 1992, 1995, 128 L.Ed.2d 842 (1994)). Counts I, II, and IV all presented cognizable claims for declaratory relief under the Clean Air Act, which were ultimately disposed of in this Court’s Memorandum and Order granting Plaintiffs’ Motion for Summary Judgment. The time for seeking reargument has expired, thus, the Judgment issued by this Court on October 29,1997 is final. See Haverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798, 803 (1st Cir.), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964). Secondly, this Court viewed the interrelatedness of the claims in this litigation and the overall context of the ease before deciding to certify the final judgment pursuant to Rule 54(b). This Court determined that the Commissioner’s regulations are preempted by CAA §§ 177 and 209. The consequent invalidation of the regulations means there is no need to reach the question of whether the regulations are also preempted by CAA § 249(f)(4).' Resolving Count III in favor of the Automakers would provide them with no additional relief beyond that provided by preemption under sections 177 and 209(a). The Court’s decision on Counts I, II and IV renders a decision on Count III unnecessary.

1786650-15579

KENYON, Circuit Judge. Appellant was tried and convicted on both counts of an information which charged, in the first count, an unlawful sale of intoxicating liquor, and, in the second, the maintenance of a common nuisance at a certain building used as a hotel in Taney county, Mo., by conducting a place where whisky unlawfully was possessed, kept, and sold in violation of the National Prohibition Act (27 USCA § 1 et seq.). The evidence introduced by the government was that one R. R. Lashbrook, who was a federal prohibition agent working under the deputy prohibition administrator of the Western district of Missouri, went about February 10,1929, with an informer named Berry Jones, to the building described in the information located at Branson, Mo. Lash-brook was introduced to appellant under the name of George Lewis. The informer asked appellant “if he had any more of that good whisky.” Appellant asked how much'was wanted, and Lashbrook said a quart ought to be enough. Appellant filled two pint bottles and handed them to Lashbrook, who gave him three $1 bills. These bottles were examined at Kansas City, and were found to contain whisky. Lashbrook was substantiated to some extent by the informer Jones, whose evidence was of such a dubious character, and who was so contradicted, that the court in its instructions to the jury described him as “a man of pitifully weak character.” Mr. Lane, who-was deputy prohibition administrator of the Western district of Missouri, testified to the reputation of this place as being one where intoxicating liquors were kept, bartered, and sold. While appellant was being taken in a car by the officers to Springfield, he told them that Jones had double-crossed him and caused him to sell liquor to a prohibition agent. There was evidence on the part of appellant of his good reputation in the community in which he lived. Appellant in his testimony admitted that his place had been raided at one time, bnt denied that any liquor was there found. A number of assignments of error are presented. Some are readily disposed of. The question of error in overruling appellant’s demurrer to the government’s evidence at the close of the government’s case was waived by failing to present the demurrer at the close of all the evidence. The question as to a technical defect in the information, to wit, that it purports to be founded upon the affidavit of W. Harold Lane, when no such affidavit appears, is raised for the first time in this court. There is no showing that a warrant was issued on the information. Appellant was arrested in June, 1929, and the information was filed October 10, 1929. Trial was had October 11, 1929. Appellant was arrested long before the information was filed. The failure to verify the information under these circumstances was certainly not a fatal defect. That the information stated a crime against the government is unquestioned. The alleged defect was not called to the attention of the trial court. It is too late to raise it now. Dismone v. United States (C. C. A.) 12 F.(2d) 63; Beach v. United States (C. C. A.) 19 F.(2d) 739. The important questions raised by the assignments of error are with reference to the introduction and exclusion of testimony and as to the alleged improper cross-examination of certain witnesses. Berry Jones was asked on cross-examination if, while he was in the employ of the government, carrying the government mail, he had not been convicted or did not plead guilty to transporting liquor in violation of the National Prohibition Law (27 USCA § 1 et seq.). Evidence of the conviction of crime as affecting the credibility of a witness is limited to conviction of a felony, an infamous crime, or a crime involving moral turpitude. Lawrence v. United States (C. C. A.) 18 F.(2d) 407; Scaffidi et al. v. United States (G. C. A.) 37 F.(2d) 203. It is not entirely clear in the record as to whether the appellant was attempting to show that Jones had been convicted for the transportation of liquor subsequent to the time that the Jones Act (27 USCA §§ 91, 92), which would make such transportation a felony, took effect, viz. March 2, 1929. The government contends that under the record it is apparent that the question related to the time before March 2, 1929. If it did, there was no error in excluding the evidence. If subsequent to the Jones amendment to the National Prohibition Act, then the exclusion thereof was error. Haussener v. United States (C. C. A.) 4 F.(2d) 884. The form of the question might call for an answer involving a transportation after Mareh 2, 1929; i. e., a felony. The government’s objection should have raised this question clearly and pointedly and its solution by the court would 'have been timely. This alleged error can easily be eliminated on another trial. The witness Eulbright testified to the good reputation of appellant in the neighborhood wheré he lived, as to being an honest, peaceable, truthful, upright, law-abiding citizen. He also testified as to the good reputation of the place of business. The following occurred on cross-examination: “By Mr. Keyes: Q. Did you know the Government had raided that rock house about eighteen months ago ? A. No sir, I didn’t. “Q. You didn’t know that? A. No sir. “Q. What would you say as to the reputation of the rock house if the Government had raided it and found a quantity of intoxicating liquor there about eighteen months, or twenty months ago, and the proprietor of that place about nine months ago was arrested and charged with the violation of the National Prohibition Act and maintaining a nuisance. Now, with that fact established in your mind, would you then say that that place had a good reputation? “Mr. Collins: The defendant objects to that question, if Your Honor please, because it assumes facts not proven. “The Court: Objection overruled. “Mr. Collins: Defendant excepts. “Q. What would be your answer to that? A. I don’t know as I just got that. Give that to me again. “Q. Well, let us assume that the Government raided this place sometime ago and obtained a quantity of intoxicating liquor, and you knew about it, and then let us assume that the proprietor of that place had been arrested, charged with making a sale of whisky at that place, and you knew about it, with these facts in your mind and before you, would you then say that place had a good reputation? A. I don’t think I would say so. “Q. You don’t think you would? A. No sir” The witness Keeler testified likewise to the good reputation of appellant and that he had not heard the reputation of the place he was operating questioned. The following occurred on cross-examination: “By Mr. Keyes: Q. Did you know it had been raided by the Government sometime ago? “Mr. Collins: We object. “The Court: Objection overruled. “Mr. Collins: Defendant excepts. “A. I heard it had been raided sometime ago. That has been a year or so ago. I have not heard anything since then. “Q. Did you hear Mr. Pittman had been arrested ? A. I had not. “Q. You didn’t hear that until you came to court ? A. I had no knowledge of that until I came here today. * * * “Q. Now then you say it has a good reputation in that community, as being a place where intoxicating liquors are sold; that it has no reputation in fact of being a place where intoxicating liquors are sold? A. I can’t say that I have ever heard it questioned. “Q. Outside of the one time when the Government raided it? A. Yes, I heard they raided it; that was all. I knew nothing about it. “Q. Assuming for the purpose of discussion that it had been raided, and you had known it was raided, with that knowledge in your mind and then assuming that you had heard that the proprietor or operator of the place had been arrested by the Government and charged with the sale of whisky there and maintaining a nuisance, then with that fact in your mind, would you still say it has a good reputation? “Mr. Collins: Defendant objects to that question for the reason it does-not tend to prove any issue in this ease and is wholly incompetent, is an improper question and only tends to prejudice the jury. “The Court: Objection overruled. “Mr. Collins: Defendant excepts. “Q. What would you say? A. Please repeat the question. “Q. Assuming it has been raided by the Government sometime ago and you knew that, and assuming the operator of the place was again arrested by the Government charged with selling whisky there and maintaining a nuisance at that place and you knew that, with knowledge of those incidents in your mind, would you then tell this jury that it had a good reputation? A. I could not. “Q. You could not? A. No.” Appellant admitted that his place had once been raided, but there was no evidence that he was arrested at that time, or that any intoxicating liquor was found. The questions on cross-examination are not entirely clear as to whether the arrest referred to related to the alleged crime charged in the information, or whether it was some other arrest. In the question to the witness Keeler, which we have set out, the phrase “was again arrested” is used, implying, of course, that there had been a previous arrest to the one with which the present ease is concerned. The questions were rather deftly put, and combine statements concerning which there was no 'evidence with what the witness may have heard concerning the arrest on the charges in the information. This method of cross-examination is not proper. A witness sufficiently qualified may testify as to the general reputation of a defendant as to good character prior to the time of the charges in the indictment or information in the community where he resides. He may be asked on cross-examination as to the sources and grounds of his knowledge and as to reports he has heard in the community concerning the character of the defendant. 10 R. C. L. § 124. Underhill on Criminal Evidence, § 82, states the rule as follows: “A witness to good character may be asked on cross-examination whether he has heard rumors of particular and specific charges of the commission of acts inconsistent with the character which he was called to prove and generally as to the grounds of his evidence, not so much to establish the truth of such facts or charges, as to test his credibility and to determine the weight of his evidence.” ' In Sloan v. United States, 31 F.(2d) 902, 906, this court discusses the question of cross-examination of character witnesses. Some were asked if they had read in the St. Louis papers that a couple of days after the date of the alleged conspiracy officers had found 60 gallons of whisky in defendant’s room.. In holding this to be improper cross-examination, the court said: “But the matter put in issue was the general reputation which means the estimate generally held by those who know the party. It is no impeachment of that reputation to show that the character witness himself has seen a publication derogatory to the character of the party.” And the Court held that the trial Court’s discretion was exceeded in permitting these questions to be asked. In State v. Brown, 181 Mo. loc. cit. 215, 79 S. W. 1111, 1116, the court said: “Hypothetical questions must be based upon the facts which the evidence tends to prove.” In People v. Elliott, 163 N. Y. 11, 57 N. E. 103, 104, questions framed very similarly to the ones objected to in this ease were asked certain character witnesses on cross-examination. The question asked of two of the witnesses was this: “If it should develop that a judgment of the supreme court of this state had granted a divorce on the ground of cruel and inhuman treatment, and in that judgment it stated ‘that at the house of Reuben Bixby, in the village of Greene, and at other places in the village of Greene, the defendant struck, kicked, choked, injured, and had frequently threatened to kill the plaintiff and said child, Grace B. Elliott, and the treatment and conduct of the defendant to and towards the plaintiff during said time has been cruel and inhuman, and such that it is improper and unsafe for the plaintiff and defendant longer to live together as husband and wife’ — If that was attested as a fact in the supreme court, what would you say as to. this man’s character being good or bad?” The court said that this incompetent question was highly prejudicial 'to the defendant; that there was nothing before the court to show any such judgment of the Supreme Court; that it would have been competent for'the district attorney to ask the character witnesses whether they had heard of the divorce proceeding and whether that changed their previously expressed opinion. The situation there, as here, was the statement of certain facts in the question asked on cross-examination of which there was no evidence whatever in the record, and the judgment was reversed partially on this ground. In the recent case of Spalitto v. United States (C. C. A.) 39 F.(2d) 782, witnesses were introduced who testified to defendant’s good reputation as a law-abiding citizen prior to the date of the charge. These witnesses were asked on cross-examination if they had not heard that the defendant had been arrested a few years before on the charge of operating a still and a saloon. Judge Gardner, in writing the opinion of this Court, reviewed the various authorities, and it was held there was no error in the ruling of the court permitting this cross-examination. Reference may be made to that case for a very complete citation of “authorities. That case, however, is not similar to this one. There the witnesses were asked if they had heard that defendant had been arrested, etc. It was not stated to the witnesses, as was done in this case, that certain facts existed which were not in evidence and from which they were asked to draw conclusions. 2 Wigmore on Evidence, § 988, states: “It is to be noted that the inquiry is always directed to the witness’ hearing of the disparaging rumor as negativing the reputation. There must be no question as to the fact of the misconduct, or the rule against particular facts would be violated; and it is this distinction that the Courts are constantly obliged to enforce.” Here the witnesses were not asked as to reports they had heard — they heard them for the first time in questions put to them on cross-examination. A cross-examiner cannot state to a witness certain things as facts when there is no evidence in the record thereof and then ask his opinion thereon as to a defendant’s general reputation as affected in part by the matters so stated. Any person’s reputation for good character might be destroyed by such cross-examination. The mere arrest of a defendant cannot be shown as affecting his credibility. Many innocent men are arrested. Arrest might not affect one’s reputation in a community as to character, and yet the statement to a witness that defendant has been previously arrested may tend to affect the witness’ opinion on the question of reputation as to character and also to prejudice the jury against defendant. The lay mind does not stop ordinarily to distinguish between accusation of crime and conviction thereof. As there is no evidence in this record of a previous arrest of appellant for selling intoxicating liquors or for maintaining a. nuisance, or that eighteen to twenty months before the trial a quantity of intoxicating liquor was found in a raid on his place of business, the statements to the witnesses in the question propounded on cross-examination that such were the facts were unfair and created around appellant an atmosphere of prejudice.

3496097-22433

OPINION EDMUND A. SARGUS, JR., District Judge. Defendant-Appellant Wasem Petrus (“Defendant”) challenges the 70-month sentenced imposed by the district court following his guilty plea to a charge of conspiring to possess with intent to distribute and to distribute methylenedioxymethamphetamine (“MDMA”). Defendant contends that his sentence is procedurally unreasonable because the district judge failed to adequately explain her apparent rejection of Defendant’s arguments for leniency, failed to adequately explain how she selected the sentence imposed, and failed to give proper weight to facts and circumstances suggesting a lesser penalty. For the reasons that follow, we hereby AFFIRM the sentence imposed by the district court. I. Background Defendant was charged in a one-count indictment returned July 20, 2007 in the U.S. District Court for the Eastern District of Michigan for conspiring to possess with intent to distribute and distribute MDMA in violation of 21 U.S.C. § § 841(a)(1) and 846. Defendant pleaded guilty to the charge on November 13, 2007, and a sentencing hearing was held on May 20, 2008. At the sentencing hearing, Defendant’s counsel urged the district court to consider the fact that Defendant had been born in Iraq and that his family fled as refugees when Defendant was a young child. According to Defendant’s counsel, due to his parents’ poor health, Defendant has “been the man of his family” since a very young age, having dropped out of school after the tenth grade to help support his family. (Sentencing Tr. at 4.) Defendant’s counsel asked the Court to “take into account [Defendant’s] personal circumstances, including the fact that he takes care of his family.” (Id. at 6.) He pointed out that Defendant is “not a person [who has] supported himself as a drug dealer” or who has “ever been successful as a drug dealer,” but rather “took advantage of an economic opportunity” presented by a coworker. (Id. at 6.) In his sentencing memorandum, Defendant also asserted that “[his] family was forced to flee Iraq. He has no family there and there is no society or government which will embrace him or protect him.” (Def.’s Sentencing Mem., ROA V.l at 16.) Defendant contended that “[t]he profound immigration consequences he faces take his case very far from the heartland of cases anticipated by the ... Guidelines and warrant a sentence greatly below the recommended sentence.” (Id. at 16.) Counsel also suggested that, due to Defendant’s non-citizen status, his conviction may subject him to possible deportation to Iraq, “a war zone” and “someplace that is [no longer the] country his family had to flee as refugees.” (Sentencing Tr. 7.) Counsel for the government responded that the government currently is “not deporting to Iraq ... and probably won’t for some years in the future.” (Id. at 8.) After listening to the above statements, the district court calculated the applicable Guideline range to be 70-87 months based on an Offense Level of 27 and Criminal History Category of one. The court listed several factors under 18 U.S.C. § 3553(a) to which Defendant’s counsel had directed the court: Defendant’s background as an Iraqi refugee, the fact that he dropped out of school and has worked since a young age to care for disabled parents, the fact that Defendant’s legal problems stem from relationships developed while he was working, his recent marriage, and the risk of “severely adverse immigration action.” (Sentencing Tr. 10.) The court then listed the general statutory factors under § 3553(a) and acknowledged that the court must also “consider the kinds of sentences available, the Guideline range, the Guidelines generally, the need to avoid unwarranted ... disparities ... and the need to ... provide restitution to victims.” (Id. at 10.) The court stated that as it “eonsider[s] generally those factors or those facts about [Defendant’s] life that he wishes the Court to take into account, the Court also takes into account that in arriving at these Guidelines, [Defendant’s] lack of criminal history was taken into account because he received the benefit of a reduction under what we call the safety valve.” (Sentencing Tr. 11.) The court noted that it had also considered the fact that Defendant was involved in a “very serious offense” and that credible evidence documented his role as a distributor. (Id. at 11.) The relevant conduct attributed to Defendant included 8,125 MDMA pills, equivalent under Sentencing Guideline 2D 1.1(c) to over one million kilograms of marijuana. The court acknowledged that an otherwise similar offender in the conspiracy, Jeny Maqi, had received an “extremely lenient” sentence partly due to the “vast” extent of her cooperation with the government and the “extraordinary and exceptional” amount of information she had provided. (Sentencing Tr. 11.) The court stated that it understood Defendant’s assertion that “by the time [Defendant] came in there wasn’t any information that he had to provide,” noted that the court did not know whether this was true, but found a “vast distinction between [Defendant] and Miss [Maqi] because of the nature of her cooperation.” (Id. at 11.) The court stated that it “certainly is mindful” that it could consider Defendant’s immigration status. (Sentencing Tr. 12.) The district court then sentenced Defendant to serve a term of 70 months in custody followed by three years of supervised release. On May 29, 2008, Defendant filed this timely appeal. II. Standard of Review We review a district court’s sentencing determination for reasonableness under a “deferential abuse-of-discretion standard.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007) (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007); Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2459, 168 L.Ed.2d 203 (2007); United States v. Booker, 543 U.S. 220, 260-61, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). This standard has two components: procedural and substantive. Id., 511 F.3d at 578 (citing Gall, 128 S.Ct. at 597). A. Procedural Reasonableness Review Our procedural reasonableness review consists of three steps. We must ensure that the district court (1) properly calculated the applicable advisory Guidelines range; (2) considered the § 3553(a) factors as well as the parties’ arguments for a sentence outside the Guidelines range; and (3) adequately articulated its reasoning for imposing the chosen sentence, including any rejection of the parties’ arguments for an outside-Guidelines sentence and any decision to deviate from the advisory Guidelines range. Bolds, 511 F.3d at 581. “First, we must ensure that the district court ‘correctly calculated] the applicable Guidelines range’ which are ‘the starting point and initial benchmark’ of its sentencing analysis.” Bolds, 511 F.3d at 579 (quoting Gall, 128 S.Ct. at 591). In reviewing the district court’s calculation of the Guidelines, we still review the district court’s factual findings for clear error and its legal conclusions de novo. Id., 511 F.3d at 579 (citing United States v. Lalonde, 509 F.3d 750, 763 (6th Cir.2007)). Second, we must ensure that the district judge gave both parties an opportunity “ ‘to argue for whatever sentence they deem appropriate’ and then ‘considered all of the § 3553(a) factors to determine whether they support the sentence requested by [each] party.’ ” Bolds, 511 F.3d at 579-80 (quoting Gall, 128 S.Ct. at 596). “In evaluating the parties’ arguments, the sentencing judge ‘may not presume that the Guidelines range is reasonable,’ ” but rather “ ‘must make an individualized assessment based on the facts presented’ and upon a thorough consideration of all of the § 3553(a) factors.” Id., 511 F.3d at 580 (quoting Gall, 128 S.Ct. at 596-97; Rita, 127 S.Ct. at 2465). Finally, we must “ensure that the district court has ‘adequately explained] the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.’ ” Bolds, 511 F.3d at 580 (quoting Gall, 128 S.Ct. at 597). “Reversible procedural error occurs if the sentencing judge fails to ‘set forth enough [of a statement of reasons] to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision making authority.’ ” Id., 511 F.3d at 580 (emphasis added) (quoting Rita, 127 S.Ct. at 2468). It is “not incumbent on the District Judge to raise every conceivably relevant issue on his own initiative.” Gall, 128 S.Ct. at 599. However, if a defendant raises a particular argument in support of a lower sentence, the record must reflect that the district judge both considered the defendant’s argument and explained the basis for rejecting it. Bolds, 511 F.3d at 580 (citing United States v. Jones, 489 F.3d 243, 251 (6th Cir.2007)). See also Rita, 127 S.Ct. at 2468 (“Where the defendant ... presents nonfrivolous reasons for imposing a different sentence ... the judge will normally go further and explain why he has rejected those arguments. Sometimes the circumstances will call for a brief explanation; sometimes they will call for a lengthier explanation.”). We have held that “a district court’s failure to address each argument [of the defendant] head-on will not lead to automatic vacatur” if the context and the record make the court’s reasoning clear. United States v. Smith, 505 F.3d 463, 468 (6th Cir.2007) (quoting United States v. Liou, 491 F.3d 334, 339 n. 4 (6th Cir.2007)). See also United States v. Duane, 533 F.3d 441, 452 (6th Cir.2008); Vonner, 516 F.3d at 386, 387; United States v. Keller, 498 F.3d 316, 327-28 (6th Cir.2007). In this Court’s recent unpublished decision in United States v. Herrod, No. 07-2197, 2009 WL 2514047, *5-10, 2009 U.S.App. Lexis 18763, *14-28 (6th Cir.2009), Judge Clay wrote separately “to emphasize that sentencing judges are responsible for providing an adequate record for appeal.” He noted: Our case law imposes this obligation on district courts for reasons of fairness and practicality. From every perspective, it is preferable for district courts to explicitly address every nonfrivolous argument raised by a defendant. Expressly articulating the grounds for rejecting the particular claims raised by a defendant, at least with respect to a defendant’s nonfrivolous arguments, promotes several critical goals: (1) it provides the defendant with a clear understanding of the basis for his or her sentence; (2) it allows the public to understand the rationale underlying the chosen sentence; and (3) it helps this Court avoid the difficulties of parsing the sentencing transcript when determining whether the district court in fact considered the defendant’s arguments. In fact, if district courts fully complied with this obligation, many frivolous appeals and clarification remands could be avoided. Herrod, 2009 WL 2514047, at *5, 2009 U.S.App. Lexis 18763 at *14 (Clay, J., concurring). We agree with Judge Clay that “the better practice ... is for the district court to explicitly address all of the nonfrivolous arguments that a defendant raises in support of a lower sentence.” Id., 2009 WL 2514047 at *8, 2009 U.S.App. Lexis 18763 at *22-23 (Clay, J., concurring). The record also “must contain the district court’s rationale for concluding that the sentence imposed is ‘sufficient but not greater than necessary, to comply with the purposes’ of sentencing set forth in 18 U.S.C. § 3553(a).” Bolds, 511 F.3d at 580. While the district court need not “engage in a ‘ritualistic incantation to establish consideration of a legal issue’ ” or “make specific findings related to each of the factors considered,” the district court must articulate the reasons it reached the sentence imposed. Id., 511 F.3d at 580 (citing United States v. McClellan, 164 F.3d 308, 310 (1999); United States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005)). It is insufficient simply to list the § 3553(a) factors and the defendant’s various characteristics. Id., 511 F.3d at 580 (citing United States v. Cousins, 469 F.3d 572, 577 (6th Cir.2006)). Rather, “[t]he district court must provide a clear explanation of why it has either accepted or rejected the parties’ arguments and thereby chosen the particular sentence imposed, regardless of whether it is within or outside of the Guidelines.” Id., 511 F.3d at 580 (citing Gall, 128 S.Ct. at 597). B. Substantive Reasonableness Review If we have found the district court’s sentencing decision to be procedurally sound, we must “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Bolds, 511 F.3d at 581 (quoting Gall, 128 S.Ct. at 597). In reviewing for substantive reasonableness, we must “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id., 511 F.3d at 581 (quoting Gall, 128 S.Ct. at 597). For sentences within the Guidelines, we may apply a rebuttable presumption of substantive reasonableness. Id., 511 F.3d at 581 (citing Gall, 128 S.Ct. at 597; Rita, 127 S.Ct. at 2456; United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006)). We may not, however, apply a presumption of unreasonableness to outside-Guidelines sentences. Id., 511 F.3d at 581 (citing Gall, 128 S.Ct. at 597). In general, we must give “due deference” to the district court’s conclusion that the sentence imposed is warranted by the § 3553(a) factors. Id., 511 F.3d at 581 (citing Gall, 128 S.Ct. at 597). “The fact that [we] might have reasonably concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id., 511 F.3d at 581 (quoting Gall, 128 S.Ct. at 597). III. Discussion A. Procedural Reasonableness Defendant contends that his 70-month sentence is procedurally unreasonable because the district judge “failed to adequately explain her apparent rejection of the defendant’s arguments for leniency,” or to explain “how she selected the sentence which she did,” and because the judge “failed to give proper weight to facts and circumstances suggesting a lesser penalty.” (Def.’s Br. 3.) As discussed above, we review the district court’s decision for procedural reasonableness in three steps, ensuring that the district court: (1) properly calculated the Guidelines range; (2) considered the other § 3553(a) factors and the parties’ arguments; and (3) adequately articulated its reasoning for imposing the chosen sentence, including any rejection of the parties’ arguments. Bolds, 511 F.3d at 581. We find that the district court satisfied these requirements. First, Defendant does not dispute that the district court properly calculated the applicable advisory Guidelines range to be 70-87 months based on an Offense Level of 27 and Criminal History Category of I. Second, the record shows that the district court gave both parties “the opportunity to argue for whatever sentence they deem appropriate” and made an individualized assessment based on the facts and upon a thorough consideration of all of the § 3553(a) factors. It is undisputed, and the sentencing hearing transcript shows, that the court provided an opportunity for Defendant and the government to speak in support of whatever sentence they deemed appropriate. The record also shows that the district court made an individualized assessment based upon all of the § 3553(a) factors as well as those facts and circumstances brought to light by the parties. Before announcing the sentence, the court listed both the general § 3553(a) factors and the considerations discussed by Defendant’s counsel. The court noted that as it considered all of those factors, it also considered the serious nature of Defendant’s offense and the fact that Defendant’s lack of a criminal history was taken into account under the “safety valve” of 18 U.S.C. § 3553(f). The court acknowledged that Defendant faced potential deportation as a result of the conviction. The court also explained why it imposed a harsher sentence on Defendant than that imposed on a coconspirator who had provided the government with an “extraordinary and exceptional” amount of information. Finally, we find that the district court adequately explained the sentence imposed, and that the court “considered the parties’ arguments and has a reasoned basis” for selecting the sentence imposed. The record reflects that the district court considered Defendant’s arguments and explained the basis for rejecting them, as described above. Defendant contends that “the record does not tell us” “[w]hat impact ... the defense arguments regarding the hardships of [Defendant’s] life, his service to his family, the burden of his deportability, or the harshness of the Guidelines’ treatment of his situational wrongdoing [had] on [the court’s] thinking.” (Def.’s Br. 23.) Having acknowledged the parties’ arguments and articulated its reasons for imposing a particular sentence, however, the district court was not obligated to discuss extensively each consideration. In a recent case, we found that “[a]l-though the district judge did not articulate his reasons for rejecting [the defendant’s] arguments, his reasoning was ‘sufficiently detailed to reflect the considerations listed in § 3553(a) and to allow for meaningful appellate review.’ ” United States v. Lap-sins, 570 F.3d 758, 773 (6th Cir.2009) (applying the plain error rule under Bostic, 371 F.3d 865) (quoting United States v. Mayberry, 540 F.3d 506, 518 (6th Cir.2008)). Noting that “[t]he district court is not required to ‘give the reasons for rejecting any and all arguments [made] by the parties for alternative sentences,’ ” we held that “[i]t is sufficient if the district judge ‘set[s] forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority.’ ” Id., 570 F.3d at 773 (citing Vonner, 516 F.3d at 387; Rita, 551 U.S. at 356, 127 S.Ct. 2456; United States v. Moon, 513 F.3d 527, 539 (6th Cir.2008); United States v. Gale, 468 F.3d 929, 940 (6th Cir.2006)). This Court explained that “[a] less lengthy explanation will suffice for a within-Guidelines sentence when ‘the record makes clear that the sentencing judge considered the [defendant’s] evidence and arguments.’ ” Id., 570 F.3d at 774 (citing Rita, 551 U.S. at 359, 127 S.Ct. 2456). We noted that “[although the district court did not specifically respond to [the defendant’s] arguments about his remorse, family support, substance abuse problems, and willingness to undergo counseling, these matters are encompassed within § 3553(a)(1),” which the district court stated that it had considered. Id., 570 F.3d at 774. Here, as in Lapsins, the district court might have said more during the sentencing hearing. The best practice, as Judge Clay has said, “is for the district court to explicitly address all of the non-frivolous arguments that a defendant raises in support of a lower sentence.” Herrod, 2009 WL 2514047 at *8, 2009 U.S.App. Lexis 18763 at *22-23 (Clay, J., concurring). In this case, however, the district court’s brevity does not constitute reversible error. The court explained its decision by discussing the considerations the court considered most important. As the Supreme Court has held: We acknowledge that the judge might have said more. [She] might have added explicitly that [she] had heard and considered the evidence and argument; that (as no one before [the court] denied) [she] thought the Commission in the Guidelines had determined a sentence that was proper in the mine run of roughly similar ... cases; and that [she] found that [the defendant’s] personal circumstances here were simply not different enough to warrant a different sentence. But context and the record make clear that this, or similar, reasoning underlies the judge’s conclusion. Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively. Rita v. United States, 551 U.S. 338, 359, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). The dissent maintains that the district court did not adequately explain its reasons in rejecting the arguments advanced by Defendant in favor of mitigation. The first position advanced by Petrus relates to his status as a non-citizen, lawfully in the country at the time of conviction. The second argument focused upon the much lower sentences given to co-conspirators and the court’s refusal to And that Petrus rendered substantial assistance to the government. While each of these arguments could have been addressed with more detailed rationales, the record discloses that the district court considered and rejected the Defendant’s position. As to his immigration status, the district court expressly acknowledged that Petrus faced “severely adverse immigration status,” yet sentenced him at the low end of the sentencing guideline range. We agree with our dissenting colleague that the district court perhaps should have said more. It is worth noting, however, that in the post-Booker era, the Defendant’s immigration status could lead a sentencing court to two opposite conclusions, one being that potential deportation and fewer prison opportunities should be a reason for a downward variance. Conversely, the other conclusion could be that a person granted the benefit of entry to the country should be subject to an upward variance for abusing the privilege. In different factual contexts, either approach is within the discretion of the sentencing court. In this case, the district court emphasized the serious nature of Petrus’ conduct and did not find that his immigration status sufficiently mitigated his crime. The record discloses that the district court understood Petrus’ argument, considered the merits, and rejected the position. As to the sentences given to his co-conspirators, the record is clear that, unlike Petrus, each of the other defendants cooperated with the government and received the benefit of a motion for a downward departure under U.S.S.G. § 5K1.1. Co-conspirator Jeny Maqi faced a sentencing guideline range of 121-151 months. The district court granted the 5K1.1 motion and did not impose incarceration, given her “extraordinary and exceptional” amount of assistance to the government.

7845541-31204

ORDER LINDBERG, District Judge. The court has considered de novo the report and recommendation of Magistrate Judge Rebecca R. Pallmeyer of November 21, 1994 that this court’s order of August 27, 1993 granting defendant Piper, Jaffray & Hopwood’s motion to arbitrate be vacated. The court has also considered the objections of the defendant and response thereto of plaintiff, Peter C. Kostantacos. The court accepts the report of and adopts the recommendations of Magistrate Judge Pallmeyer. ORDERED: the motion of plaintiff, Peter C. Kostantacos to vacate the order of this court compelling arbitration of his claims against defendant Piper, Jaffray & Hopwood is granted. A status hearing to reset trial and all pretrial events is set for January 31, 1995 at 9:30 a.m. REPORT AND RECOMMENDATION PALLMEYER, United States Magistrate Judge. Plaintiffs Melvin C. Nielsen and Peter C. Kostantacos filed this security fraud action on behalf of a purported class of wronged investors. The complaint, filed on October 11, 1991, seeks relief against a number of Defendants, including Defendant Piper, Jaffray & Hopwood, Inc. (hereinafter, “PJH”), one of two underwriters of the securities offering at issue. Defendant PJH moved to compel arbitration of Plaintiffs’ claims against PJH. In a Report and Recommendation dated February 26, 1993, this court recommended that the District Court grant that motion. On August 27, 1993, District Judge George Lindberg affirmed that recommendation and ordered Plaintiffs to arbitrate their claims. Plaintiff Kostantacos now moves to vacate that order. Kostantacos argues that recent amendments to the National Association of Securities Dealers (hereinafter, “NASD”) Code of Arbitration Procedure are applicable to this case and bar arbitration of class action securities claims, such as this one. The amendments at issue took effect on October 28, 1992, several months after the filing of PJH’s motion to compel arbitration but well prior to this court’s order. For the reasons set forth below, Kostantacos’ motion should be granted. FACTUAL BACKGROUND Plaintiffs Melvin Nielsen and Peter Kostantacos filed this securities fraud class action against, several Defendants, including the issuer of $150 million in debentures; a subsidiary of the issuer; officers and directors of the issuer; the lender; and two underwriters, one of whom is the moving party here, Defendant PJH. On January 6, 1992, Defendant PJH filed its motion to compel arbitration of Plaintiffs’ claims pursuant to the arbitration provisions that appeared in brokerage service agreements between Plaintiffs and PJH. Specifically, the “Fidu ciary Cash Account Agreements” signed by Plaintiffs provided: We specifically agree and recognize that all controversies which may arise between Piper, Jaffray and Hopwood Incorporated ... and me, concerning any transaction, account or the construction, performance or breach of this or any other agreement between us, whether entered into prior, on, or subsequent to the date hereof, shall be determined by arbitration to the fullest extent provided by law. Such arbitration shall be in accordance with the rules then in effect, of the Arbitration Committee of the New York Stock Exchange or the National Association of Securities Dealers, Inc. as I may elect____ I understand that I am not obligated to arbitrate disputes under the federal securities laws to the extent such claims are held not to be arbitrable as a matter of law. (Fiduciary Cash Account Agreement, Exs. A and B to Defendant PJH’s Motion to Stay Proceedings and to Compel Arbitration, filed January 6, 1992, at ¶ 14.) In addition to the arbitration clause, the agreements specifically address the effect of changes in statutes or regulations that may occur: Whenever any statute shall be enacted, or any regulation made under any statute or by any exchange, board or market, which shall be applicable to and affect in any manner or be inconsistent with any of the provisions hereof, the provisions of this agreement so affected shall be deemed modified or superseded, as the case may be, by such statute or regulation and all other provisions of this agreement and the provisions as so modified shall in all respects continue and be in full force and effect. Id. ¶ 9. On February 26, 1993, this court recommended that PJH’s motion to compel arbitration be granted. On August 27, 1993, the District Court adopted that recommendation and entered its order granting PJH’s motion. Plaintiff Kostantacos argues that a recent rule change requires that the court vacate its earlier order. Plaintiff explains that he has now learned that two days before PJH presented its motion, the Securities Industry Conference on Arbitration (hereinafter, “SICA”) had adopted a change in the NASD Code of Arbitration Procedure. The Code governs the arbitration of “any dispute, claim or controversy” between members of the NASD and customers, and is “deemed a part of and incorporated by reference in every agreement to arbitrate under the rules of the [NASD].” NASD Manual-Rules of Fan-Practice (CCH) ¶¶ 3701, 3742 (1994). As amended, Section 12(d)(3) of Part III of the Code provides: No member or associated person shall seek to enforce any agreement to arbitrate against a customer who has initiated in court a putative class action or is a member of a putative or certified class with respect to any claims encompassed by the class action unless and until: (A) the class certification is denied; (B) the class is decertified; (C) the customer is excluded from the class by the court; or (D) the customer elects not to participate in the putative or certified class action or, if applicable, has complied with any conditions for withdrawing from the class prescribed by the court. Id. ¶ 3712(d)(3). This new rule became effective upon approval by the Securities and Exchange Commission (hereinafter, “SEC”) on October 28, 1992. On that date, the SEC issued a Release in which it approved the NASD rule change and stated: “This rule change is effective upon the date of Commission approval for all open arbitrations and for arbitration filings made on or after that date____ Ac cordingly, neither member firms nor their associated persons may use an existing arbitration agreement to compel a customer to arbitrate a claim that is encompassed by a class action.” (Order Approving Proposed Rule Change Relating to the Exclusion of Class Actions from Arbitration Proceedings, Securities and Exchange Commission Release No. 34-31371, 57 Fed.Reg. 42659 (October 28, 1992).) The Release further stated: [T]he. proposed rule change will ensure that class actions and claims of individual class members are not eligible for arbitration at the NASD, regardless of any previously existing agreement to arbitrate____ Moreover, paragraph (d)(3) clearly prohibits NASD members from enforcing existing arbitration contracts to defeat class certification or participation. As approved, the rule will exclude all class actions from arbitration at the NASD. (Id.) (emphasis added). Also on October 28, 1992, the SEC approved an amendment to Article III, Section 21(f) of the NASD Rules of Fair Practice. Pursuant to that change, all arbitration agreements signed by customers of NASD members are required to contain a statement prohibiting persons from bringing class actions to arbitration and from attempting to enforce an agreement to arbitrate against a class member. In contrast to the language quoted above, new Rule 21(b) specifically provided that these requirements “apply only to new agreements signed by an existing or new customer of a member after October 28, 1993.” SUMMARY OF ARGUMENTS Plaintiff Kostantacos contends that the amendments to NASD arbitration rules revive his court ease against PJH and require this court to vacate its order compelling arbitration. Plaintiff points out that the October 28, 1992 rule change prohibits a member of the NASD, such as PJH, from enforcing an arbitration agreement against a customer who has initiated a putative class action. Because that rule had been adopted and was in effect before the motion to compel arbitration was decided, Plaintiff argues, the order compelling arbitration should be vacated. (Plaintiffs Memorandum in Support of Their Motion to Vacate This Court’s Order Compelling Peter C. Kostantacos to Arbitrate His Claims and for Class Certification (hereinafter, “Plaintiffs Memorandum”), at 3.) Defendant PJH contends that the amended NASD rule is inapplicable to this dispute because the effective date of the rule change post-dated the January 6,1992 filing date for PJH’s motion to compel arbitration. (Defendant Piper, Jaffray & Hopwood, Inc.’s Response Memorandum in Opposition to Plaintiffs Motion to Vacate this Court’s Order Compelling Peter C. Kostantacos to Arbitrate His Claim (hereinafter, “Defendant’s Response”), at 2.) Even if one assumes that the rule change is relevant, PJH urges, this court should nevertheless enforce the arbitration agreement because NASD rules determine only how arbitration should proceed, not the question of whether claims are arbitrable. (Id. at 5.) Citing the strong federal policy in favor of arbitration, Defendant PJH argues that even where the NASD rules are incorporated in the agreement, they may not defeat arbitration. (Id. at 6-9.) Defendant also argues that Plaintiff does not have standing to assert a violation of the NASD rules. (Id. at 9.) Finally, Defendant contends that the NASD rule change should not have “retroactive” application — that is, should not apply to bar arbitration of Plaintiff Kostantacos’ claim, where the motion to compel arbitration was filed prior to the rule change. (Id. at 10.) In his reply, Plaintiff Kostantacos urges that the amendments to NASD Rule 12(d) were intended to apply to all arbitration agreements existing at the time the rule changes became effective, including this agreement. (Plaintiffs’ Reply Memorandum in Support of Their Motion to Vacate This Court’s Order Compelling Peter C. Kostantacos to Arbitrate His Claims (hereinafter, “Plaintiffs’ Reply,” at 2.) Indeed, in Plaintiffs view, the NASD rule changes merely restores the parties’ expectations at the time they signed the agreement, four months before the Supreme Court held in Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) that claims under the Securities Act of 1933 may be subject to arbitration. Thus, whether or not such application is deemed “retroactive,” Plaintiff urges, the rules should be applied in this case. DISCUSSION This case presents an issue apparently of first impression: whether the 1992 NASD rule changes are binding with respect to agreements that pre-date the rule changes. Indeed, there appears to be no case law that addresses the new rule at all. I. Are NASD Rules Binding? Both parties have focused their briefs on the question of the power of NASD rules to control the parties’ rights and obligations. NASD rules cannot trump the parties’ agreement to arbitrate, PJH urges. In support of this contention, Defendant cites Schulze & Burch Biscuit Co. v. Tree Top, Inc., 642 F.Supp. 1155 (N.D.Ill.1986), aff'd, 831 F.2d 709 (7th Cir.1987), in which the court rejected plaintiffs contention that the parties’ agreement to arbitrate their contract dispute was vague and unenforceable. Although the agreement itself did not identify the arbitral forum, the location of the arbitration, or the rules governing the arbitration, the court concluded that the U.S. Arbitration Act, 9 U.S.C. § 1, et seq. and the parties’ course of dealings, filled these gaps. Id. at 1156-57. Similarly, Defendant cites Zechman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 742 F.Supp. 1359 (N.D.Ill.1990), for its argument that this court should compel arbitration regardless of whether the NASD itself would adhere to its new rules and refuse to conduct the arbitration. In Zechman, the court was faced with a dispute between a trader and the securities firm that employed him. Plaintiff trader had initially sought arbitration pursuant to Rule 600.00 of the Chicago Board of Trade, which requires members of the Exchange to arbitrate their disputes. The Chicago Board of Trade declined to hear the claim, apparently due to a conflict of interest. On defendant’s motion, however, the court compelled arbitration before a neutral arbitration panel in order to effectuate the parties’ agreement to arbitrate them disputes, in spite of the unavailability of the preferred CBOT forum. Relying on these cases, Defendant PJH urges that the NASD rules determine only how arbitration is to be conducted — not whether such arbitration should occur at all. Thus, according to PJH, the parties’ agreement to arbitrate is independent of those rules and must be enforced even where the rules render the anticipated arbitral forum unavailable. Defendant PJH made a similar argument in a ease cited by Plaintiff, Mueske v. Piper, Jaffray & Hopwood, Inc., 260 Mont. 207, 859 P.2d 444 (1993). As in this ease, the plaintiff in Mueske had signed a brokerage services agreement with the defendant, Piper Jaffray & Hopwood, Inc., which contained a provision requiring arbitration of disputes to be conducted in accordance with the arbitration rules of the NYSE or NASD. Id. at 209, 859 P.2d at 446. Defendant moved to compel arbitration of plaintiffs state securities fraud and negligence claims, but plaintiff argued that the arbitration agreement was unenforceable because defendant had failed to comply with NASD Rule 21(f)(3), adopted several months before plaintiff signed the agreement in 1989, which requires NASD members to obtain the investor’s written statement acknowledging the arbitration agreement and to provide the investor with a copy of that written statement. The Montana Supreme Court agreed. The NYSE and NASD Rules are “controlling law,” the court held. Defendant’s failure to comply with the disclosure requirements rendered the arbitration clause invalid. Id. at 216, 859 P.2d at 450. In reaching this conclusion, the court specifically rejected defendant’s suggestion that it “intended to submit disputes to arbitration under the terms of NASD and NYSE rules but did not intend to have the determination of validity of the arbitration agreement made by the same rules.” Id. at 215, 859 P.2d at 449. Defendant PJH insists that Mueske is “void of any consideration of the issues discussed here” or must be disregarded as “simply wrong.” Defendant’s Response at 8-9 n. 4. Certainly PJH is correct that Mueske does not address the class action amendments to the NASD Code of Arbitration. In numerous other eases, however, courts have assumed, like the Mueske court, that provisions of the Code control the issue of whether a particular claim is arbitrable. Two Seventh Circuit decisions are illustrative. In Paine Webber Inc. v. Farnam, 870 F.2d 1286 (7th Cir.1989), a brokerage firm brought an action in Illinois state court for monies owed it by a customer. The customer sought arbitration of his own claims that the brokerage had breached duties to him and moved for a stay of the state court proceedings pending arbitration. Before the court had ruled on that motion, the brokerage firm sought a declaratory judgment in federal court that arbitration of the customer’s claims was barred by § 15 of the NASD Code. Section 15 provides that “[n]o dispute, claim or controversy shall be eligible for submission to arbitration under this code where six years shall have elapsed from the occurrence or event giving rise to the act or the dispute, claim or controversy.” The district court refused to disturb the state court’s determination that the action in that court should be stayed, but the Seventh Circuit reversed. The court noted that, under the NASD’s interpretation, § 15 of the Code is “an eligibility requirement” rather than a statute of limitations and serves as “an absolute bar” to arbitration of untimely claims. 870 F.2d at 1292. The Seventh Circuit adhered to that conclusion more recently in Edward D. Jones & Co. v. Sorrells, 957 F.2d 509 (7th Cir.1992). In Jones, investors had sought arbitration of claims of misrepresentation and securities violations against a broker and brokerage firm. Plaintiffs, the broker and brokerage firm, argued that § 15 of the NASD Code required the court to vacate the arbitration award in favor of plaintiffs, and the court agreed. The Jones court cited its “explicit holding” in Paine Webber that § 15 is an eligibility requirement rather than a statute of limitations. 957 F.2d at 513. Significantly, the court noted that its conclusion concerning § 15 was supported by the NASD’s own interpretation of that section and by the SEC Release announcing the rule. In reaching its decision on the question of whether the claim was arbitrable — a question for the court, not for the arbitrator — the Seventh Circuit relied on NASD rules regarding the issue. Nor do the cases cited by Defendant éstablish that this court is not governed by NASD rules in determining whether the parties are bound to arbitrate their dispute in this case. (See Defendant’s Response, at 8.) First, Defendant cites eases in which lower courts compelled arbitration of claims under Rule 10(b) — 5 in spite of apparently contrary language in the Securities and Exchange Commission’s Rule 15c2-2, 17 C.F.R. § 240.15e2-2. That Rule, adopted by the SEC at a time when the Supreme Court had held that an arbitration agreement was unenforceable with respect to certain securities claims, provided: “It shall be a fraudulent, manipulative or deceptive act or practice for a broker or dealer to enter into an agreement with any public customer which purports to bind the customer to the arbitration of future disputes between them arising under the Federal securities laws____” In the cases cited by Defendant PJH, the courts conclude that the purpose of the rule was not to render disputes non-arbitrable; rather, its purpose was merely to ensure that customers signing broker-dealer agreements would not be misled as to the enforceability of arbitration clauses and the availability of judicial relief. See Shotto v. Laub, 632 F.Supp. 516 (D.Md.1986); Steinberg v. Illinois Co., 635 F.Supp. 615 (N.D.Ill.1986) (citing Shotto.) In each of these eases, the court enforced arbitration of Rule 10(b) — 5 claims in light of the shift in the Supreme Court’s position on the arbitration of such claims. None of the cases involves a contract provision which specifically incorporates rules barring arbitration of particular claims. In addition to the 10(b) — 5 cases, Defendant cites several cases that address the default rules of the NASD, NYSE, and AMEX, which require members to submit to arbitration of customer claims at the customer’s insistence, even in the absence of a written agreement. (Defendant’s Response, at 7.) These cases hold that the arbitration provision of the “AMEX Window,” which designates the American Arbitration Association as the forum to hear such claims, may be superseded by a more specific customer agreement selecting a different forum for arbitration. The willingness of the courts in these cases to enforce forum selection provisions over default rules does not demonstrate, as Defendant suggests, that the NASD or NYSE rules are routinely disregarded by courts. II. Does Plaintiff have Standing? As Defendant PJH acknowledges, the NASD Code of Arbitration as well as the NYSE Arbitration Rules are equivalent to contracts between members and the exchange. (Defendant’s Response, at 6.) Thus, Defendant suggests, it may be answerable to the exchange for rules violations, but Plaintiff Kostantacos himself lacks standing to enforce the Code’s provisions. Defendant is correct that the courts have not recognized a private right of action for enforcement of exchange rules. See Spicer v. Chicago Board of Options Exchange, Inc., 977 F.2d 255, 266 (7th Cir.1992) (CBOE rules); Carrott v. Shearson Hayden Stone, Inc., 724 F.2d 821, 823 (9th Cir.1984) (NYSE rules); Thompson v. Smith Barney, Harris Upham & Co., 709 F.2d 1413, 1419 (11th Cir.1983) (NYSE “know your customer” rule and NASD “suitability” rule). Here, however, Plaintiff is not seeking affirmative relief for any violation by Defendant of the NASD rules involved. Instead, Plaintiff seeks merely to invoke NASD rules as a defense to Defendant’s request for arbitration — much as the brokerages did in Jones and Paine Webber. PJH has not established that Kostantacos lacks standing to bring the NASD rules changes to the court’s attention. III. Are NASD Rules to be Applied Retroactively? Even if the NASD Code controls the parties’ agreement and Plaintiff Kostantacos has standing to enforce it, PJH urges, the 1992 amendments to the code may not be applied retroactively to preclude arbitration here. In Kresock v. Bankers Trust Co., 21 F.3d 176 (7th Cir.1994), the Seventh Circuit considered a different amendment to the NASD Code of Arbitration and concluded that that amendment should not apply retroactively. In Kresock, plaintiff brought an employment discrimination claim against her former employer, an investment firm. Defendant moved to compel, invoking the parties’ agreement to arbitrate any controversy required to be arbitrated under the rules of the NASD. At the time plaintiff brought her claim, NASD rules did not require arbitration of employment discrimination suits; nearly a year later, however, the SEC approved a rule change that required that such disputes be arbitrated. In refusing to apply the rule change retroactively, the Seventh Circuit observed that the amendments were more than “mere clarifications” and instead were “structural changes ... that sweep into the realm of arbitration a whole new class of disputes.” Id. at 178-79. The court also observed that the amendments did not mention retroactive application and that the relevant conduct took place long before the amendments became effective. The court concluded that it would be unfair to hold the plaintiff accountable for rules that were not in effect at the time the relevant conduct took place. Id. A number of other cases, some of them more recent than the parties’ briefs, also discuss retroactivity in the context of the change in NASD rules requiring arbitration of employment discrimination claims. In Turner v. IDS Fin. Servs., Inc., No. 94-1263, 1994 WL 580186 1994 U.S.App. LEXIS 29461 (7th Cir. Oct. 21, 1994) (unpublished order reversing district court order compelling arbitration), the court adhered to Kresock, refusing to compel arbitration of an employment dispute which arose more than a year and a half before the effective date of the amendments. The Eleventh Circuit, however, decided the issue differently in Kidd v. Equitable Life Assur. Soc’y, 32 F.3d 516 (11th Cir.1994). In Kidd, the plaintiff brought an employment discrimination suit nine months before the NASD amendment. In holding that arbitration of the claim was nevertheless required, the court applied the amendment retroactively on the basis that “ample evidence exist[ed] showing that the pre-amendment NASD Code required arbitration of employment disputes.” Id. at 520. In Scher v. Equitable Life Assur. Soc’y, 866 F.Supp. 776 (S.D.N.Y.1994), similarly, the court compelled arbitration where the NASD amendment occurred prior to plaintiffs filing his employment discrimination suit. The court ruled that the plaintiff “must comply with the NASD Code as it existed at the time he commenced his action.” Id. at 778 (citing Kidd). Also compare F.N. Wolf & Co. v. Brothers, 161 Misc.2d 98, 613 N.Y.S.2d 319 (Sup.1994) (refusing to require arbitration of pre-amendment employment dispute) with F.N. Wolf & Co. v. Bowles, 160 Misc.2d 752, 610 N.Y.S.2d 757 (Sup.1994) (compelling arbitration of employment dispute without reaching retroactivity issue based upon court’s conclusion, contrary to Farrand, that the pre-amendment Code required arbitration of such disputes). This court has found only one other case that addresses the problem of retroactivity of NASD Code amendments. In that case, Chor v. Piper, Jaffray & Hopwood, Inc., 261 Mont. 143, 148, 862 P.2d 26, 29 (1993), the Montana Supreme Court refused to apply an rule change retroactively to arbitration agreements signed in 1988 where the rule expressly stated that it applied only to new agreements signed after September 1989. Kresock is, thus, the only reported decision from this jurisdiction on retroactivity of NASD rule changes. Although the Seventh Circuit declined to enforce the rule change in that case, the language of the opinion supports a different result here. The court acknowledged that plaintiff had agreed to be bound by amendments to the NASD Code but also emphasized that she “never agreed to the retroactive application of such amendments, particularly when the amendments themselves do not purport to apply retroactively.” Kresock, 21 F.3d at 179 (emphasis supplied). Here, although the amendments themselves do not expressly mention retroactivity, statements in the SEC Release clearly express retroactive intent. For example, the Release states that the changes apply to all “open arbitrations and arbitration filings made on or after the effective date,” and that “neither members nor their associated persons may use an existing arbitration agreement to compel a customer to arbitrate a claim that is encompassed by a class action.” (Order Approving Proposed Rule Change Relating to the Exclusion of Class Actions from Arbitration Proceedings, Securities and Exchange Commission Release No. 34-31371, 57 Fed.Reg. 42659 (October 28, 1992).) Further, the Release states that the rule change ensures that class actions are not eligible for NASD arbitration, “regardless of any previously existing agreement to arbitrate.” Id. It appears, thus, that the SEC intended the rule changes to cover all existing arbitration agreements as of the October 28, 1992 effective date. As noted previously, in Jones the Seventh Circuit relied on language in the SEC Release concerning § 15 of the NASD Code to support the court’s conclusion enforcing that provision. Jones, 957 F.2d at 513. The Jones court’s treatment of the NASD’s and SEC’s interpretation of the Code counsels against disregard of the SEC’s intent with respect to the amendment at issue here. In addition, language in the parties’ own agreement supports a conclusion that enforcement of the rule change is appropriate here. As noted earlier, the Fiduciary Cash Account Agreement signed by Kostantacos and PJH expressly provides that, in the event of a new regulation adopted by an exchange, “the provisions of this agreement so affected shall be deemed modified or superseded ... and the provisions as so modified shall in all respects continue and be in full force and effect.” (Fiduciary Cash Account Agreement, ¶ 9.) Thus, the parties in this case appear to have specifically considered the possibility presented by the rule change at issue here, and have agreed to be bound by such changes. Defendant emphasizes the language of amended Section 21 of the Code, which requires NASD members to disclose the exception for class actions in arbitration agreements, but provides specifically that such requirements apply only to agreements signed after October 28, 1993. As Plaintiff points out, however, that language can fairly be interpreted simply to spare NASD members the obligation of withdrawing and rewriting all of the arbitration agreements to which they are parties. (Plaintiffs Reply, at 4.) The language of Section 21(f) of the Code at least suggests that the drafters contemplated immediate application of the new provisions and knew what language to use where they did not intend such application. The absence of any such language in Section 12, coupled with the plain statements contained in the SEC Release that class action claims are not eligible for arbitration “regardless of any previously existing agreement,” supports the conclusion that retroactive application of Section 12 in this case is appropriate. In this case, PJH filed its motion to compel arbitration only a day before SICA approved the rule changes. Those changes became effective on October 28, 1992, and had been in effect for over ten months by the time Judge Lindberg issued his order compelling arbitration. The SEC Release notes that the courts have developed special procedures and expertise for managing class action suits. Id. Thus, the rule changes appear to reflect a preference for judicial resolution of class action claims. For all of these reasons, it is recommended that the court enforce NASD Rule changes adopted well prior to the August 27, 1993 order and vacate that order. CONCLUSION This court should grant Plaintiff Kostantacos’ motion to vacate the order directing arbitration of his claims against Defendant PJH. Kostantacos’ standing to represent a class of claimants depends in part on his ability to proceed in court against Defendant PJH. Thus, if this recommendation is adopted, it will enhance the likelihood that this ease may proceed as a class action and may significantly alter the range and scope of discovery. Accordingly, it is recommended that the date for completion of expert discovery be continued pending the District Court’s disposition of this motion to vacate and Plaintiffs’ renewed motion for class certification. Date: Counsel have ten days from the date of service to file objections to this Report and Recommendation with the Honorable George W. Lindberg. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). Failure to object constitutes a waiver of the right to appeal. Egert v. Connecticut General Life Ins. Co., 900 F.2d 1032, 1039 (7th Cir.1990). . A full description of the factual and procedural background appears at Nielsen v. Greenwood, 849 F.Supp. 1233 (N.D.Ill.1994) and will not be repeated here. . Curiously, neither party mentions this provision in its brief. . SICA is comprised of representatives from each self-regulatory organization that administers an arbitration program (two of which are the NYSE and NASD), a representative of the securities industry, and four members of the public. Securities and Exchange Commission Release No. 34-34344, 59 Fed.Reg. 36453 n. 5 (July 18, 1994). . The New York Stock Exchange (hereinafter, "NYSE”) adopted a similar rule change (Rule 600(d)) which became effective August 26, 1992. The parties direct their arguments to the NASD changes, however. . Indeed, in a recent unreported decision, at least one court has reached the opposite conclusion concerning Rule 21(f). In Eureka Homestead Society v. Howard, Weil, LaBouisse, Fredericks, Inc., No. CIV. A 94-0452 CC, 1994 WL 583274 (E.D.La.1994), plaintiff urged that the court deny a motion to compel arbitration where defendant, the moving party, failed to include the appropriate disclosure language in the parties’ arbitration agreement. The court concluded that "this violation does not give rise to a private cause of action in favor of Eureka," and that defendant's non-compliance with industry rules are issues for the arbitrators’ consideration. Id. *6.

6513243-15060

ORDER MeAULIFFE, District Judge. I. Introduction This appeal from a decision of the Bankruptcy Court questions whether a secured creditor may postpone a previously scheduled foreclosure sale after a debtor has filed for protection, without violating the automatic stay provisions of the Bankruptcy Code. 11 U.S.C. § 362(a) (1991). The Bankruptcy Court (Goodman, J.) determined that the act of postponing a foreclosure sale is a “continuation ... of a judicial, administrative, or other action or proceeding against the debtor,” and so, violates the automatic stay provisions. Bankruptcy Code, 11 U.S.C. § 362(a)(1) (1991). Because RIHT Mortgage Corp. (“RIHT”) took action to postpone the foreclosure sale of Sherrill R. Zeoli’s (“Zeoli”) property after she filed for protection in the Bankruptcy Court, the Court granted Zeoli’s Motion to hold RIHT in Contempt for violating the automatic stay provisions. The Court imposed a sanction requiring RIHT to pay modest attorney’s fees related to the contempt motion. While the Bankruptcy Judge determined that postponement of the sale itself might adversely affect marketability of the property at a later date, because he found no actual damage to either the estate or the debtor in this case, no other sanctions were imposed and no other damages were assessed. For the reasons set forth below, the decision of the Bankruptcy Court is reversed and vacated. II. Facts RIHT held a mortgage on Zeoli’s residence. On June 1, 1992, Zeoli filed a Petition in Bankruptcy under the provisions of Chapter 7, United States Bankruptcy Code. Prior to her filing, RIHT had scheduled a non-judicial foreclosure sale of Zeoli’s property on June 3, 1992, at 11:00 a.m. Two days before the sale, counsel for RIHT was informed of Ms. Zeoli’s personal bankruptcy status. Counsel presumably was aware of the automatic stay provisions of 11 U.S.C. § 362(a). In preparation for the anticipated June 3 foreclosure sale, RIHT had already published the three notices required by applicable New Hampshire law. N.H.REV.STAT. ANN. § 479:25 (1991). Despite Zeoli’s personal bankruptcy status, and without regard to the automatic stay provisions, RIHT attended the scheduled foreclosure sale on June 3, 1992. Its actions were limited, however, to reading and posting a notice of postponement of sale to a future date certain, i.e. July 22, 1992. RIHT sent a copy of the notice of postponement to all parties who had initially received notice of the sale, again as required by applicable New Hampshire law. N.H.REV.STAT. ANN.' § 479:25. On June 22, 1992, RIHT filed a Motion for Relief from Stay in the Bankruptcy Court. On August 6, 1992, the Bankruptcy Court granted relief from the automatic stay provisions with respect to Zeoli’s property. On July 8, 1992, Zeoli’s counsel filed a Motion for Contempt against RIHT. Zeoli argued that RIHT’s act postponing the foreclosure sale violated the stay provisions. A hearing on the motion was held on August 19,1992, at which the Bankruptcy Court concluded that the automatic stay provisions extend even to action by a creditor to postpone a previously scheduled foreclosure sale. However, since no damage to the debtor or her estate occurred as a result of RIHT’s postponement, the Bankruptcy Court limited its sanction to imposition of modest attorney’s fees related to the contempt motion. On August 16, 1992, RIHT took an appeal to this Court, which exercises jurisdiction under 28 U.S.C. § 158(a) (1992), III. Discussion In reviewing a Bankruptcy Court’s decision, a District Court will not disturb findings of fact unless they are clearly erroneous. Briden v. Foley, 776 F.2d 379, 381 (1st Cir.1985); Bank.R. 8013. Questions of law, on the other hand, are subject to plenary review. Robb v. Schindler, 142 B.R. 589, 590 (D.Mass.1992) citing In re G.S.F. Corp., 938 F.2d 1467, 1474 (1st Cir.1991). The facts of this case are not in dispute, and the question presented is entirely one of law. Accordingly, this Court will redetermine the issue. The automatic stay provisions were made part of the Code by the Bankruptcy Reform Act of 1978, to effect a temporary halt to all debt collection or enforcement proceedings until a court could reasonably assess the debtor’s circumstances and make appropriate dispositive orders: The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy. Notes of the Committee on the Judiciary, S.Rep. No. 989, 95th Cong., 2d Sess. 54, (1978), reprinted in [1978] U.S.Code Cong. & Ad.News 5787, 5840. In its 1973 report, the Commission on the Bankruptcy Laws of the United States noted its frustration with the “dismemberpng] of estates by the foreclosures of liens instituted before the filing of a petition in bankruptcy.” The Commission also lamented the courts’ inability, at that time, to halt continuation of foreclosure proceedings initiated before commencement of a liquidation ease. H.R.Rep. No. 137, 93rd Cong., 1st Sess. 16 (1973). Congress responded by enacting 11 U.S.C. § 362(a) which provides, in pertinent part, that the filing of a petition in bankruptcy operates as an automatic stay of: (1) The commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title; s¡: * * * * (3) Any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; [and] sfc * sfc * H" ¡fc (6) Any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title, (emphasis added) 11 U.S.C. § 362(a)(1), (3), (6) (1991). Applying these statutory provisions, the Bankruptcy Court construed the postponement of a previously scheduled foreclosure sale to be a “continuation” of a “proceeding against the debtor” within the meaning of 11 U.S.C. § 362(a)(1) (1991). While the Bankruptcy Court’s interpretation and application of the statutory language has merit, reasonable minds do differ on the subject. This Court finds the alternative interpretation and application of the automatic stay provisions employed by other courts to be more compelling and more consistent with the purpose of the statute. Under what appears to be the prevailing view, postponing a foreclosure sale is not violative of the automatic stay provisions. The primary purposes of the automatic stay provisions are to effectively stop all creditor collection efforts, stop all harassment of a debtor seeking relief, and to maintain the status quo between the debtor and her creditors, thereby affording the parties and the Court an opportunity to appropriately resolve competing economic interests in an orderly and effective way. Maintaining the status quo is a repeating theme in decisions construing the automatic stay provisions. See, e.g., In re New American Food Concepts, 70 B.R. 254, 258 (Bankr.N.D.Ohio 1987). (“In litigation concerning the automatic stay, the Code generally seeks to leave matters in a status quo posture ..., to provide a reasonable opportunity for a financially distressed debtor, its creditors and the Court to determine whether there are reasonable prospects for the debtor’s survival.” (citation omitted)). See also I. C. C. v. Holmes Transportation, Inc., 931 F.2d 984, 987 (1st Cir.1991) (“[t]he automatic stay is designed to effect an immediate freeze of the status quo at the outset”); In re Texaco Inc., 73 B.R. 960, 963 (Bankr.S.D.N.Y.1987) (court allowed note holders to present a formal notice of tender to the debtors “in order to allow the note holders to maintain their status quo during the post-Chapter 11 period so that they might not be deprived of their rights to tender their Notes at some future time”) (emphasis in original). The Court of Appeals for the Ninth Circuit has explicitly held that postponement of a foreclosure sale does not violate the automatic stay provisions of the Code. In re Roach, 660 F.2d 1316 (9th Cir.1981). As recognized in Roach, postponing the date of a foreclosure sale maintains the status quo between creditor and debtor, as of the time of bankruptcy filing. Id. at 1319. No other effect is apparent, and certainly none measurably prejudicial to the debtor’s economic interests. The Ninth Circuit emphasized in Roach that the postponing creditor did not “harass, interfere, or gain any advantage.” Id. citing In re Decker, 465 F.2d 294, 297 (3d Cir.1972) (“[Sjtays are in the nature of temporary injunctions designed to maintain the status quo.”) Accordingly, the act of postponement was found by the Court of Appeals to violate neither the plain language nor the purpose of the automatic stay provisions. Roach, 660 F.2d at 1319. Other courts that have faced this and similar issues have resolved them consistently with the Ninth Circuit’s analysis in Roach. See, e.g., In re Tome, 113 B.R. 626, 630 (Bankr.D.Cal.1990) (Postponement of a foreclosure sale by secured creditors one month at a time while bankruptcy case is pending is not violative of automatic stay.); In re Barnes, 119 B.R. 552, 556 (S.D.Ohio 1989) (Rescheduling and advertisement of a Sheriff’s sale three days after the dismissal of Chapter 13 petition is not violative of Bankruptcy Rule 7062. ); In re Doud, 30 B.R. 731, 733-734 (Bankr. W.D.Wash.1983) (Creditor bank, in a Chapter 7 case, postponed a non-judicial foreclosure sale of mortgaged property, without violating § 362(a), since act of postponement “is not in and of itself adversarial.” ) Our own Court of Appeals is apparently inclined to follow the “status quo” approach to and interpretation of the automatic stay provisions. In re de Jesus Saez, 721 F.2d 848 (1st Cir.1983). In Saez, the First Circuit Court of Appeals considered whether a creditor’s rescheduling of a sheriffs sale was in violation of the Bankruptcy Code’s automatic stay provisions. Reasoning that the mere act of postponement was not shown to have harassed, or revived the financial pressures that drove the debt- or into bankruptcy, the Court, favorably citing the Ninth Circuit’s Roach opinion, declined to affirm a contempt finding based upon a violation of the stay provisions. Id. at 853. The postponement of a foreclosure sale is certainly an “act”. But, it is not an act in “continuation” of a proceeding “against the debtor” prohibited by § 362(a)(1). Rather, it is more appropriately characterized as an act in preservation of a stayed proceeding. The arrow of time, immune to the Bankruptcy Code’s automatic stay provisions, is the critical variable in this case. Time does not stand still for legal processes. Here, its passage, combined with RIHT’s “act of not acting” to postpone the sale, would have entirely expunged the stayed foreclosure proceeding, thereby disrupting the status quo to the economic detriment of RIHT, while conferring no discernable benefit on the debtor. Applicable New Hampshire law mandates that some action be taken if the status quo between creditor and debtor is to be effectively preserved. By operation of New Hampshire law, unless a foreclosure sale is postponed to a future date certain, the foreclosure proceeding itself unalterably changes from “pending, but stayed” to “terminated”. See N.H.REV. STAT.ANN. § 429:25 ; Armille v. Lovett, 100 N.H. 203, 206, 122 A.2d 265, 268 (N.H. 1956) (postponement of foreclosure sale to a definite hour and day eliminates the requirement of a new notice and advertisement). Absent postponement of the sale to a date certain, RIHT would have been required under State law to begin the foreclosure process anew, i.e. when relief from the automatic stay was granted on August 6, 1992. The practical consequence of not postponing would be duplication of the sale costs previously incurred by RIHT merely to return to the point at which the matter was “stayed”. Duplicated foreclosure costs rarely, if ever, inure to the benefit of the debtor. If there is equity in the property those duplicative costs will ordinarily be deducted from the sale proceeds, funds which otherwise would be applied for the debtor’s benefit. In the event there is no equity in the property, those duplicative costs at best unfairly reduce the recovery to which the secured creditor is legitimately entitled. Only two realistic choices were allowed RIHT in this case, and a choice was unavoidable. Either RIHT could “act” to postpone the scheduled foreclosure sale to a date certain, preserving the status quo, or, it could have “acted” by taking no action, thereby suffering termination of the stayed foreclosure sale by operation of time and State law. By postponing, RIHT preserved the existing relationship between the parties, protected its legitimate interests, and imposed no burden on the debtor. The Bankruptcy Court’s determination that the postponement of a foreclosure sale might inhibit the ability of the debtor’s estate to sell the property in a commercially reasonable manner at a later time is not persuasive. In any event, that possibility is far outweighed by the real and practical risk of measurable damage that failure to postpone would inflict upon either or both the debtor and creditor. IY. Conclusion Because the postponement of a previously scheduled foreclosure sale merely preserves the status quo between creditor and debtor, does not inure to the detriment of the debtor in any measurable way, does not itself constitute harassment or other prejudice to the debtor, and, indeed, is consistent with the plain language and purpose of the stay provisions, RIHT’s action in this case was appropriate and not in violation of 11 U.S.C. § 362(a). For the reasons set forth, the finding of contempt, and imposition of sanctions against RIHT are hereby reversed and vacated. SO ORDERED. . Bankruptcy Rule 7062 applies Federal Rule of Civil Procedure 62 to bankruptcy proceedings. Rule 62, in turn, provides that "no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten days after its entry.” Fed.R.Civ.P. 62(a). The District Court determined initially that the dismissal of the petition did not constitute a proceeding that required application of Rule 7062. Nonetheless, the court noted that even if the automatic stay of Rule 7062 did apply, defendant’s action still would not be a violation of the stay. Barnes, 119 B.R. at 557-558. . Compare In re Demp, 23 B.R. 239, 240 (Bankr.E.D.Pa.1982) (Creditor's act of initially scheduling a sheriffs sale, after a Chapter 7 petition had been filed by the debtor, and after receiving specific instructions not to take further action to collect, was deemed a violation of § 362(a)(1)).

5442792-13266

OPINION POLLACK, District Judge. The operator of a retail book store in the Times Square area of New York City sues members of the Police Department, the District Attorney and several State court judges for a declaratory judgment that Section 235.10(1) of the New York Penal Law, McKinney’s Consol.Laws, c. 40, which creates a statutory presumption relating to obscenity offenses, is unconstitutional and that Sections 791 et seq. of the New York Code of Criminal Procedure, governing search warrant procedures, are unconstitutional as applied to obscenity offenses. Plaintiff seeks a declaration that previous arrests of its officer and employees and seizures of materials, which had either been promoted or possessed with intent to be promoted were illegal and excessive, an injunction against pending criminal prosecutions and an order that the materials seized be returned to it. An injunction is also sought against future arrests and seizures if made without a prior judicial determination of obscenity upon an adversary proceeding. A three-judge court to deal with these matters, and interlocutory injunctive relief, have been demanded. I. The grounds asserted for the claimed unconstitutionality of New York Penal Law Section 235.10(1), viz., that it creates a conclusive presumption, that it shifts the burden of proof of scienter to a defendant and that it eliminates as a defense good faith belief that the material is not obscene; do not raise a substantial constitutional question. The presumption is not “conclusive”, People v. Terra, 303 N.Y. 332, 334-335, 102 N. E.2d 576 (1951), the burden of proof of the case is not shifted, Speiser v. Randall, 357 U.S. 513, 523-524, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), and the good faith referred to is not a defense protected by the First Amendment, Mishkin v. New York, 383 U.S. 502, 510, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966). II. Even assuming that a substantial constitutional question has been raised as to a procedure which, in advance of adversary hearing on the issue of obscenity, includes the seizure of allegedly obscene material and the arrest of those in possession thereof, plaintiff is, nevertheless, not entitled to have a three-judge court convened to consider this question. A three-judge court is properly convened only upon the ground of the alleged unconstitutionality of a statute. Swift & Co. v. Wickham, 382 U.S. 111, 120, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). It is not to be convened to restrain the alleged lawless exercise of authority by a state official. See, Evergreen Review, Inc. v. Cahn, 230 F.Supp. 498, 502 (E.D.N.Y.1964) (three-judge court). The statutes governing the procedures used here, New York Code of Crim.Proc. § 791 et seq., do not prohibit an adversary hearing if constitutionally required prior to an arrest or seizure. Consequently, unlike the statute involved in Evergreen Review, supra at p. 501, n. 2, the statute here may be constitutionally applied. That being so, even if a substantial federal question is raised here, it does not concern the constitutionality of the statute but only the constitutionality of the result obtained by use of the statute. Tyrone, Inc. v. Wilkinson, 4th Cir., May 6, 1969, 410 F.2d 639, affirming 294 F.Supp. 1330 (E.D. Va.1969). Any unlawful seizures made here can be remedied without convening a three-judge court. Cf. Potwora v. Dillon, 386 F.2d 74 (2d Cir. 1967). III. The Supreme Court has held that confiscatory seizure of substantial quantities of books or other matter is not permissible unless preceded by an adversary judicial determination of the obscenity of the material. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L.Ed.2d 809 (1964). See, United States v. Brown, 274 F.Supp. 561 (S.D.N.Y.1967). An arrest and an accompanying seizure of specimens only of the allegedly obscene materials are another matter entirely. No decision has thus far prohibited the normal police function of effecting an arrest and the seizure of sample evidence of a suspected crime being committed. Such an arrest and a limited supporting seizure are not tantamount to a prior restraint since the jeopardy faced is essentially the restraint of obscenity law itself in respect of the remainder of the wares on the shelves and self-censorship in respect thereof at the option of the merchant. It has never been held that liberty of speech is absolute. Times Film Corp. v. City of Chicago, 365 U.S. 43, 47, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961). The protection even as to previous restraint is not absolutely unlimited. Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L. Ed. 1357 (1931). The plaintiff would require the police to proceed by a prior adversary judicial hearing on the question of its obscenity before a specimen of questioned matter could be seized as evidence. The plaintiff would eliminate the right of the police to arrest the purveyor of the material until after the adversary judicial hearing. This all seems to carry the protection of liberty of speech too far and adversely to the public interest to be protected. We must clearly understand that obscenity is not protected under the Free Speech Clause of the Constitution; it is a valid exercise of the State’s police powers to enact legislation making the dissemination of obscene material unlawful, Roth v. United States, 354 U.S. 476, 485-487, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Yet the merchants of what our eyes and ears tell us and our common sense confirms to be obscene, resist any effort to place them in jeopardy of arrest and seizure of evidence without a prior declaratory judgment of obscenity under adversary circumstances. It cannot be the law, free speech rights notwithstanding, that peddlers and purveyors of smut and despicable vulgarity have a constitutional license to publicly exploit pictures, magazines and books plainly exhibiting gross depravity, with complete immunity from on-the-spot arrest of the merchant and seizure of a reasonable quantity of the evidence on which to prosecute the arrest. It seems ludicrous to suggest that apprehension of suspected criminals and their unsavory wares requires adversary court proceedings to stamp the contents as probably obscene and to obtain authorization for an arrest and a seizure of the evidence supporting the arrest. While this sort of scene is being enacted, the sale and distribution of the material would not be in any jeopardy and the evidence could be consumed — probably at an accelerated rate under the impetus of publicity of obscenity proceedings in respect thereof. If the police are unable to seize the evidence on which the arrest depends, there is real danger that it will become unavailable to a prosecution before a trial of an adversary issue can be concluded. It is fatuous to assume that the evidence would not meanwhile be sold off or destroyed while an adversary contest was being waged or that the itinerant hucksters in these shops will meanwhile not have flown the coop. The declaratory judgment procedure demanded by plaintiff would be tantamount to suspension of obscenity law and would make a mockery of obscenity law and obedience to it. That a policeman is free to buy a copy of the offensive matter makes no material or rational difference. The only deprivation from a seizure is of a profit to the suspected lawbreaker. The police are not constitutionally required to fill the coffers of suspects rather than to seize undeniable specimens as evidence. Moreover, the procedure of arrest and the seizure of evidence as an incident to such arrest seem a reasonable way to apprehend suspects as long as we do have police. It certainly has more in its favor than a system of apprehension after judgment which would only serve “unnecessarily to handicap the States in their efforts to curb the dissemination of obscene material.” A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 215, 84 S.Ct. 1723, 1728, 12 L.Ed.2d 809 (1964) (dis. opin. per Harlan, J.). Presumably, the questioned procedure herein should not have involved the Court’s examination of the material seized. If plaintiff is right, it was improper, regardless of content, for the police to make any seizure. However, since good faith and reasonableness of the conduct of the state authorities has a bearing in this Court’s view, an examination made of the exhibits more than satisfies the Court that there is a high degree of probability that the plaintiff is not able to prove defendants’ bad faith and that there is an evident validity to the charge of obscenity levelled at the matter involved here. This Court regards the material involved here as not less than salacious, vulgar, depraved and offensive to a normal sense of decency, substantially devoid of any redeeming social or other proper value. It bears no serious message. Its commercial exploitation certainly warrants the immediate apprehension of those responsible, to answer to the charges of the State. Even a cursory examination of the exhibits before the Court confirms that the procedural subtleties urged by plaintiff would hobble the state authorities in their legitimate attempt to protect an important societal interest “without contributing in any genuine way to the furtherance of freedom of expression that our Constitution protects.” A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 215, 84 S.Ct. 1723, 1728, 12 L.Ed.2d 809 (1964) (dis. opin. Harlan, J.). The courts are indeed the bulwarks of our democratic society but in advancing the standard of free speech we must not neglect human decency and civility. To win the stamp of approval as defenders of civil rights and liberties we ought not overreact to the pressures and fashions of the day. In striking description apposite here to the matter before the Court, Fuld, J. (now Chief Judge Fuld) wrote: “It focuses predominantly upon what is sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification. Recognizable ‘by the insult it offers, invariably, to sex, and to the human spirit’ * *' * it is to be differentiated from the bawdy and the ribald. Depicting dirt for dirt’s sake, the obscene is the vile, rather than the coarse, the blow to sense, not merely to sensibility. It smacks, at times, of fantasy and unreality, of sexual perversion and sickness and represents, according to one thoughtful scholar, ‘a debauchery of the sexual faculty.’ ” (People v. Richmond County News, Inc., 9 N.Y.2d 578, 587, 216 N.Y.S.2d 369, 376, 175 N.E.2d 681, 686 [1961]). The procedural means of bringing matter to court which prima facie exhibits the probability of a violation of obscenity law must be an effective means not unreasonably submerged to tenets of free speech but reasonably in balance therewith. This necessarily connotes that freedom of speech is not an absolute in obscenity areas. The First Amendment, guaranteeing freedom of speech and of the press, was never designed or intended to protect the purveyors of filth against the more important interests of our society as a whole. In balance, public decency and morality are more important than the deprivation resulting from the banning of noxious publications which seem to appeal to that small segment of our people whose baser instincts make reading of obscenity and pornography their favorite pastime. (Larkin v. G. P. Putnam’s Sons, 14 N.Y.2d 399, 408, 252 N.Y.S.2d 71, 79, 200 N.E.2d 760, 766 (per Scileppi, J. in dissent) (1964). In sum, there can be no possible doubt that the police officers making the arrests here had probable cause to believe that crimes were being committed and by reason thereof they were thoroughly justified in seizing sufficient specimens of the evidence warranting the arrest of the alleged criminals. IV. As has been previously stated, a seizure limited to specimens of the allegedly obscene materials to substantiate an arrest by the evidence thereof is a reasonable and not unconstitutional exercise of the police power and function. Possession of six specimens of a book or magazine has been made, by statute, presumptively a holding intended for commercial promotion. New York Penal Law, Section 235.10(1). Thus, seizure of six specimens of each title or issue alleged to be obscene and present at any one time in plaintiff’s store is a reasonable and proper seizure, reasonably needed for evidentiary purposes. V. The plaintiff seeks an interlocutory injunction against prosecution of the pending criminal cases as well as an injunction against future arrests, seizures and prosecutions. Irrespective of whether a three-judge court is convened or this Court alone passes on the question, the relief requested poses the issue of the Court’s power to grant such relief. The statute provides that: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. The plaintiff contends that its rights protected by the Civil Rights Act, 42 U. S.C. § 1983 entitle it to federal injunctive relief on the contention that this Act constitutes an exception expressly authorized by the Congress.

4048818-8948

PER CURIAM: James Bernard Jones, Jr. appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his 160-month sentence for distributing cocaine. At his 2010 sentencing, the district court designated Mr. Jones as a career offender under § 4B1.1 of the United States Sentencing Guidelines, relying in part on Mr. Jones’ 2001 Florida conviction for felony battery on a law enforcement officer (“BOLEO”). Mr. Jones argues that his attorney provided ineffective assistance by failing to object to the district court’s consideration of his BOLEO conviction as a qualifying offense and failing to object to facts set out in the presentence investigation report about the BOLEO. After careful review of the record and the parties’ briefs, we affirm. I Mr. Jones pled guilty in February of 2010 to one count of distributing a substance containing at least five grams of ' cocaine base, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) & (b)(1)(C). The PSI recommended that the district court designate Mr. Jones as a career offender under U.S.S.G. § 4B1.1. The PSI listed two qualifying offenses: (1) a 1998 conviction for strong arm robbery (which Mr. Jones does not challenge); and (2) the 2001 BOLEO conviction. Regarding the BOLEO, the PSI stated, in part: On October 9, 2000, at 1:19 a.m., Fort Lauderdale (Florida) Police Department Officer David Fernando attempted to stop a vehicle driven by Jones due to the vehicle not having brake lights; however, Jones fled in his vehicle and refused to stop. The defendant eventually stopped the vehicle and fled on foot. Officer Fernando saw the defendant hiding between two vehicles and attempted to approach from a different angle. As Officer Fernando approached, Jones pushed the officer to the ground by using both hands. The defendant fled again and was not apprehended. Officer Fernando knew the defendant injured his hand while jumping over a fence and notified the local hospitals. Jones was arrested after he visited the hospital to have his hand injury treated. PSI at ¶ 66. During the sentencing hearing in March of 2010, the district court asked Mr. Jones if he had the opportunity to read and discuss the PSI with his attorney. He responded that he did. The district court also asked if Mr. Jones had any objections to the PSI’s factual accuracy or to how the sentencing guidelines were applied within it. He replied, “No, sir, Your Honor.” The district court then asked Mr. Jones’ attorney if he had any objections, and the attorney responded that there were none. The district court found that Mr. Jones was a career offender, which gave him a total offense level of 29, a criminal history category of VI, and a resulting guidelines range of 151 to 188 months. The district court sentenced Mr. Jones to 160 months’ imprisonment. Mr. Jones raised several arguments on direct appeal, including a claim that the district court erred when it considered his BOLEO conviction a qualifying offense for the career offender enhancement. He argued that the United States Supreme Court’s decision in Johnson v. United States, 559 U.S. 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), and this court’s subsequent decision in United States v. Williams, 609 F.3d 1168 (11th Cir.2010), meant that a BOLEO could never qualify as a crime of violence under the Sentencing Guidelines. We affirmed the district court’s sentence. See United States v. Jones, 408 Fed.Appx. 258 (11th Cir.2011). We held that while a BOLEO conviction, standing alone, could not qualify as a crime of violence under § 4B1.2(a)(l) of the guidelines, Mr. Jones’ failure to object to the facts in the PSI allowed the district court to properly consider them as it would any other S/tepa/rc/,-approved records. Based on the facts as stated in the PSI, we concluded that Mr. Jones’ BOLEO conviction met the definition of a crime of violence found in U.S.S.G. § 4B1.2(a)(l). See id. at 261-62. Mr. Jones then filed the instant § 2255 motion, arguing in part that his attorney provided ineffective assistance for failing to object to the district court’s consideration of his BOLEO offense as a qualifying offense for a career offender enhancement. The magistrate judge recommended denying Mr. Jones’s motion because Mr. Jones could not show that his attorney provided deficient performance. Because Mr. Jones did not object to the BOLEO facts in the PSI, the magistrate judge concluded that any objection Mr. Jones’ attorney could have raised would have been meritless. The magistrate judge also concluded that Mr. Jones could not demonstrate prejudice. Mr. Jones filed objections to the magistrate judge’s recommendation, denying the facts in the PSI. He argued that the district court was not permitted to consider facts outside of Shepard-approved records and that his attorney was ineffective for failing to object to the district court’s reliance upon non-Shepard-approved records when considering his prior conviction. The district court adopted the magistrate’s recommendation without elaboration. Mr. Jones appealed the denial of his § 2255 motion on several grounds. We granted a COA on the limited issue of whether Mr. Jones’ attorney “was ineffective for failing to object at sentencing that [Mr.] Jones did not qualify for a career-offender enhancement.” Mr. Jones raises the same arguments on appeal as he did before the district court. He also attached a copy of the state court’s judgment on his BOLEO conviction, which provides no factual information about his offense. II A claim of ineffective assistance of counsel is a mixed question of law and fact that we review de novo. See Gordon v. United States, 518 F.3d 1291, 1296 (11th Cir.2008). To prevail, Mr. Jones must establish that his attorney’s performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A strong presumption exists “that counsel’s conduct falls within the wide range of reasonable professional assistance,” but a defendant can overcome that presumption by showing that “counsel made errors so seri ous that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 689, 104 S.Ct. 2052. If counsel was deficient, the defendant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. 2052. See also id. at 684, 104 S.Ct. 2052 (“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.”). Ill A The Sentencing Guidelines provide an enhancement for defendants who are adjudicated as career offenders. Under § 4B1.1, (a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (8) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. At issue here is the definition of a “crime of violence.” The Sentencing Guidelines define a “crime of violence” in § 4B1.2 as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. We have described this definition as comprising three categories: (1) elements clause crimes, which meet the definition in the first prong; (2) enumerated clause crimes, involving the crimes listed in the second prong; and (3) residual clause crimes, which include crimes that “otherwise involve [] conduct that presents a serious potential risk of physical injury to another.” Rozier v. United States, 701 F.3d 681, 682 n. 1 (11th Cir.2012) (internal quotation marks and citations omitted) (bracketed alteration in original). B Mr. Jones argues that he received inefficient assistance of counsel because our precedent prevented the district court from considering his BOLEO as a crime of violence under the elements clause. Even if this were true, however, Mr. Jones’ claim fails because he cannot show that he was prejudiced by his attorney’s performance. Assuming — without deciding — that Mr. Jones’ attorney indeed rendered ineffective assistance by failing to object to the facts presented in the PSI, the district court could still have adjudicated him a career offender under the residual clause in § 4B1.2(a)(2).