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6105550-23661	ORDER JOSEPH F. ANDERSON, Jr., District Judge. This matter is currently before the court on the defendant’s motion for summary judgment in this adversary proceeding by the trustee to avoid an allegedly preferential payment to the defendant. The court heard argument from counsel on February 25, 1994. For the reasons set forth below, the defendant’s motion for summary judgment is denied. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). It is well-established that summary judgment should be granted “only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962). When the defendant is the moving party and the plaintiff has the ultimate burden of proof on an issue, the defendant must identify the parts of the record that demonstrate the plaintiff lacks sufficient evidence. The non-moving party, here the plaintiff, must then go beyond the pleadings and designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). See also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). I. FACTS On July 13, 1990, the debtor, Elkay Industries, Inc. (“Elkay”), voluntarily filed for protection under Chapter 11 of the United States Bankruptcy Code pursuant to 11 U.S.C. § 301. A Chapter 11 trustee was appointed on November 16, 1990. On April 10, 1991, this case was involuntarily converted to a Chapter 7 proceeding on motion of the Chapter 11 trustee, and W. Ryan Hovis was appointed as Chapter 7 trustee. The Chapter 7 ■ trustee commenced the instant adversary proceeding on April 7,1993, pursuant to Bankruptcy Rule 7001 and 11 U.S.C. § 547, to recover an allegedly preferential payment from the debtor to the defendant made within ninety days of the filing of the bankruptcy petition. The defendant has moved for summary judgment on the plaintiff trustee’s avoidance action. The defendant claims that the action is barred by the applicable statute of limitations. Alternatively, the defendant asserts that the payment it received from the debtor was not a preference because the defendant argues that it is not a creditor of the debtor and that the payment was not on account of an antecedent debt. The court will address these issues seriatim. II. DISCUSSION A. Statute of Limitations The defendant first contends that the trustee’s action is barred by the two-year statute of limitations found in 11 U.S.C. § 546(a)(1). Section 546(a) provides: “An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be commenced after the earlier of — (1) two years after the appointment of a trustee under section 702, 1104, 1163, 1302, or 1202 of this title; or (2) the time the case is closed or dismissed.” The defendant asserts that the two-year limitations period begins to run from the date of the commencement of the Chapter 11 proceeding, or at least from the date of the Chapter 11 trustee’s appointment. On the other hand, the trustee argues that when a ease is converted from Chapter 11 to Chapter 7, the limitations period begins anew, and the Chapter 7 trustee has a fresh two-year period in which to commence an action to avoid a preference. Although this appears to be a novel issue in the Fourth Circuit (other than the bankruptcy court’s order denying defendant’s motion to dismiss), there is a definite split of authority among the courts in other circuits that have addressed the issue. The majority of courts have followed Bankruptcy Judge Glen Clark’s decision in Stuart v. Pingree (In re Afco Dev. Corp.), 65 B.R. -781 (Bankr.D.Utah 1986), holding that the statute of limitations period begins anew upon conversion of the case from Chapter 11 or 13 to Chapter 7. However, a significant line of cases has emerged following the recent Ninth Circuit decision of Ford v. Union Bank (In re San Joaquin Roast Beef), 7 F.3d 1413 (9th Cir.1993), which holds that conversion of a case does not restart the limitations period. The defendant cites In re San Joaquin Roast Beef for the proposition that “[a] plain reading of section 546(a) is that the two-year statute of limitations begins running from the date the first trustee is appointed and that all subsequent trustees are subject to the same two-year statute of limitations.” 7 F.3d at 1416. However, the text of the statute is ambiguous about which interpretation Congress intended. Several courts have read section 546(a)(1) with reference to section 102(5) of the Code, which provides that “the word ‘or’ is not ‘exclusive.’ ” Zeisler v. Connecticut Bank & Trust Co. (In re Grambling), 85 B.R. 675, 676 (Bankr.D.Conn.1988); see also Martino v. Assco Assocs. (In re SSS Enters.), 145 B.R. 915, 918 (Bankr.N.D.Ill.1992) (adopting interpretation of Grambling court). The court in In re Grambling quoted the portion of the House report explaining subsection 102(5), which provides: “ ‘Paragraph (5) specifies that “or” is not exclusive. Thus, if a party “may do (a) or (b),” then the party may do either or both. The party is not limited to a mutually exclusive choice between the two alternatives.’ ” In re Grambling, 85 B.R. at 676 (quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. 315 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6272). The Grambling court concluded: Thus, the word “or” in § 546(a)(1) was not used to limit the commencement of actions or proceedings to two years after the appointment of a trustee, ... but rather to limit the commencement of actions or proceedings to two years after the appointment of any trustee. Had Congress intended the interpretation urged by the defendants, a more precise expression of that intent would have been utilized. Id. This court agrees that a plain reading of section 546(a)(1) is not dispositive of the issue at bar. That section may be read either to allow a two-year limitations period for each trustee appointed under one of the enumerated sections of the Code, or to limit the two-year period to run from the appointment of the first trustee in the case. Because of this ambiguity, the court will look beyond the plain text of the statute to the legislative history, pre-Code law, and policy considerations, as many courts that have addressed this issue have done. Unfortunately, the legislative history of section 546(a)(1) is not very illuminating on this issue. The Senate report accompanying the reform bill merely provides the following about section 546: “‘Subsection (c) [later renumbered as subsection (a) ] adds a statute of limitations to the use by the trustee of the avoiding powers. The limitation is two years after his appointment, or the time the case is closed or dismissed, whichever occurs later.’” Stuart v. Pingree (In re Afco Dev. Corp.), 65 B.R. 781, 784-85 (Bankr.D.Utah 1986) (quoting S.Rep. No. 989, 95th Cong., 2d Sess. 87 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 5873). One may interpret the dearth of legislative history regarding section 546(a)(1) to suggest that Congress did not intend to change the existing law on this issue. See id. In In re Afco Dev. Corp., Bankruptcy Judge Clark recounted the pre-Code law regarding limitations on actions by bankruptcy trustees. As he noted, “Prior to the enactment of Section 546(a), there was no separate statute of limitations for the trustee’s avoiding powers. Section 11(e) of the Bankruptcy Act, former 11 U.S.C. § 29(e) (repealed) provided a general two-year statute of limitations for suits brought by the receiver or trustee.” Id. at 783 (citing 4 Collier on Bankruptcy ¶ 546.02[1], at 546-4.1 (15th ed. 1985)). However, the statute of limitations in section 11(e) of the Act was tolled during the pendency of a Chapter X reorganization. Bankruptcy Act § 261, 11 U.S.C. § 661 (1976) (repealed 1978), quoted in In re Afco Dev. Corp., 65 B.R. at 784 & n. 1; see Davis v. Security Nat'l Bank, 447 F.2d 1094 (1971) (holding that statute of limitations in section 11(e) of the Act was suspended during the pendency of the Chapter X case so that trustee could bring an action to avoid a preference after the Chapter X case was dismissed and the original bankruptcy case reinstated, even though original case had been pending for more than two years), discussed in In re Afco Dev. Corp., 65 B.R. at 784. This court adopts the reasoning in Afeo and concludes that the legislative history of section 546(a)(1) does not indicate “that Congress intended to fundamentally change existing law with respect to limitations on avoidance power actions by trustees.” 65 B.R. at 785. Policy considerations support the interpretation of section 546(a)(1) that after conversion of the case, the trustee has a fresh two-year period within which to bring avoiding power actions. Most courts that have reached this conclusion have focused on the fundamental difference between the roles of trustees under Chapter 11 and Chapter 7. In Martino v. Assco Assocs. (In re SSS Enters.), 145 B.R. 915 (Bankr.N.D.Ill.1992), the court stated: Chapter 11 and Chapter 7 trustees may have very different views in deciding whether or not to pursue a potential avoiding power claim. For example, a Chapter 11 trustee may find it appropriate not to sue a potential preference or fraudulent conveyance defendant in order to induce that potential defendant to continue to fund a reorganization effort. That motivation disappears when the case is converted to one under Chapter 7. Id. at 918-19 (citing In re Afco Dev. Corp., 65 B.R. 781). In addition, the court in In re Afco Dev. Corp. recognized: The essentially different objectives of Chapters 7, 11, and 13 support the view that a later trustee should not be barred from exercising avoiding powers due to inaction by an earlier trustee. The purpose of Chapter 11 is the salvage and rehabilitation of a financially distressed business, not necessarily to recover voidable transfers. A Chapter 11 trustee may not have to litigate preference actions in every case. They may be dealt with in a plan of reorganization, by offsetting the creditor’s preference against the dividend paid under the plan, or may be compromised, settled, or abandoned.... “In reorganization cases, the trustee’s duties and powers give him a presence and a role to play in shaping the entire reorganization process. It is this role which involves experience, discretion, judgment, diplomacy and creativity which makes the chapter 11 trustee’s position substantially different from that of a chapter 7 trustee.” 65 B.R. at 786 (quoting Irving Sulmeyer et al., Collier Handbook for Trustees and Debtors in Possession ¶ 16.01, at 16-1 (1982) (other citations and footnotes omitted); accord McCuskey v. FBS Leasing Corp. (In re Rose Way, Inc), 160 B.R. 811, 812-13 (S.D.Iowa 1993); Amazing Enters. v. Jobin (In re M & L Bus. Machs., Inc.), 153 B.R. 308, 311 (D.Colo.1993); Zeisler v. Connecticut Bank & Trust Co. (In re Grambling), 85 B.R. 675, 676 (Bankr.D.Conn.1988) (“[Cjhapters 7, 11, 12, and 13 are materially dissimilar, and a new trustee must have the right to exercise his or her authority under the converted ease.”). Of course, the countervailing policy argument is that the limitations period in section 546(a) serves the same function as any other statute of limitations: barring stale claims. Statutes of limitations provide potential defendants with certainty that after a set period of time, they will not be hailed into court to defend time-barred claims. Moreover, limitations periods discourage plaintiffs from sitting on their rights. See, e.g., In re Afco Dev. Corp., 65 B.R. at 785 (citing Anderson v. Yungkau, 329 U.S. 482, 486, 67 S.Ct. 428, 430, 91 L.Ed. 436 (1947); Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 352, 103 S.Ct. 2392, 2392-97, 76 L.Ed.2d 628 (1983)). Although the basic reason for statutes of limitations is certainly valid, this court determines that in the bankruptcy setting, the more important policy consideration is allowing post-conversion trustees a full two-year period in which to pursue avoidance actions. See In re SSS Enters., 145 B.R. at 919. As the court in SSS Enterprises noted, If the court accepted the defendant’s analysis, and a trustee was appointed in a Chapter 11 case and that case was converted to one under Chapter 7 more than two years after the initial Chapter 11 trustee was appointed, then the Chapter 7 trustee would, in part, be prevented from carrying out the trustee’s duties delineated in § 704 of the Code. Id. (citing In re Grambling, 85 B.R. 675). Contra Grabscheid v. Denbo Iron & Metal, Inc. (In re Luria Steel & Trading Corp.), 164 B.R. 293, 296 (Bankr.N.D.Ill.1994) (rejecting “new trustee, new two years” interpretation because “the purpose of the limitations period for recovery of preferential transfers is to provide finality for creditors who have received payments from the debtor”). For the forgoing reasons, the court hereby adopts the majority interpretation of Bankruptcy Code section 546(a)(1). Accordingly, in a case where a Chapter 11 trustee has been appointed, but where the case is later converted to Chapter 7, the Chapter 7 trustee has two years from the date of his appointment in which to bring actions under his avoiding powers. B. Requirements for a Preference In support of its motion for summary judgment on the trustee’s avoidance action, the defendant also argues that the payment it received from the debtor was not a preference. Under Bankruptcy Code section 547(b), a trustee may avoid as a preference a transfer of an interest in the debtor’s property if the transfer was: (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a ease under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payments of such debt to the extent provided by the provisions of this title. 11 U.S.C. § 547(b). Only the first two requirements of section 547(b) are at issue in the present case. The defendant contends that it was not a creditor of the debtor and that the payment was not on account of an antecedent debt. The defendant argues that it did business only with Skyline Manufacturing Company, Inc. (“Skyline”), an incorporated subsidiary of the debt- or, and did not deal with the debtor directly. The trastee counters the defendant’s arguments by asserting that the debtor and Skyline were in fact the same entity, with separate corporate existences merely for tax purposes. In essence, the trustee argues that the debtor and its wholly owned corporate subsidiary were alter egos and that their separate corporate existences should be ignored. In an affidavit attached to the trustee’s brief, Edward Oprendiek, the debtor’s chief financial officer between 1969 and 1991, states the following to support the trustee’s alter ego theory: the debtor and Skyline observed little or no corporate formalities between the separate entities; the assets of the entities were extensively commingled, but Skyline had no assets of its own; Skyline maintained a separate bank account solely to pay local suppliers, but all other invoices were sent directly to and paid by the debtor; and the defendant’s invoice lists the billing address of the debtor, not that of Skyline. In rebuttal, the defendant argues that the trustee cannot use a theory of “reverse piercing of the corporate veil” in this context to establish that the debtor and its subsidiary were in fact alter egos. The defendant cites several eases for the well-settled principle that the alter ego doctrine cannot be used as a shield. See Lumpkin v. Environdyne Indus., Inc., 933 F.2d 449, 460 (7th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 373, 116 L.Ed.2d 324 (1991); Boggs v. Blue Diamond Coal Co., 590 F.2d 655, 662-63 (6th Cir.), cert. denied, 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47 (1979); Picture Lake Campground, Inc. v. Holiday Inns, Inc., 497 F.Supp. 858, 863 (E.D.Va.1980). As a general matter, the defendant is correct. Piercing the corporate veil is generally used by a creditor of a corporation to ignore the limited liability of the corporate form and to hold the shareholders liable for the debts of the corporation. However, this case presents a novel twist on the piercing doctrine, known as “reverse piercing” of the corporate veil. In a reverse piercing case, the shareholder attempts to have the corporate form of his own corporation disregarded for his own benefit. See Smith v. Richels (In re Richels), 163 B.R. 760, 763 (Bankr.E.D.Va.1994); Halverson v. Schuster (In re Schuster), 132 B.R. 604, 607 (Bankr.D.Minn.1991).. Here, the trustee is attempting to have the corporate form disregarded for the benefit of the debt- or’s estate. The trustee wants to have the debts of the subsidiary considered to be the debts of the parent-debtor so that the trustee can avoid the allegedly preferential payment to the defendant. Although piercing of the corporate veil is a matter of state law, the court’s research has revealed no South Carolina law addressing the precise issue currently before the court. In considering this issue, the court is aware that “[i]t is settled authority that the doctrine of piercing the corporate veil is not to be applied without substantial reflection.” Sturkie v. Sifly, 280 S.C. 453, 313 S.E.2d 316, 318 (Ct.App.1984). Moreover, the court recognizes that the “power to pierce the corporate veil ... is to be .exercised ‘reluctantly’ and ‘cautiously’ and [that] the burden of establishing a basis for the disregard of the corporate fiction rests on the party asserting such claim.” DeWitt Truck Brokers, Inc. v. W. Ray Flemming Fruit Co., 540 F.2d 681, 683 (4th Cir.1976). With these guiding principles in mind, the court concludes that the defendant’s motion for summary judgment should be denied. Several courts have recognized a bankruptcy trustee’s ability to bring an action for reverse piercing of the corporate veil. For example, in Halverson v. Schuster (In re Schuster), 132 B.R. 604 (Bankr.D.Minn.1991), the court concluded that under Minnesota law the trustee could assert a cause of action for reverse piercing of the corporate veil for the benefit of the estate. In Schuster, the debtor’s estate contained 50% of the stock of North Scooter Inn, Inc. The trustee brought a reverse piercing action in an attempt to subject the corporate assets of North Scooter Inn, Inc. to the creditors’ claims allowed in the debtor’s bankruptcy. The court determined that the trustee had standing to bring such an action because the trustee could “exercise all of the rights and powers of a shareholder in that corporation.” Id. at 609. The Schuster court noted: At first glance, it seems paradoxical that the Trustee accedes to the remedy as a successor to a shareholder, but that he is allowed to use his predecessor’s alleged failings and/or wrongdoings to support his invocation of the remedy. There is nothing inherently wrong with this, though. The Trustee is under a fiduciary duty to maximize the estate’s recovery, and the return to the beneficiaries of his trust. He is to be an active agent on behalf of the interests of all claimants against the estate. As a result, he must pursue the remedy at issue here. The fact that the Trustee may exploit a shareholder’s standing on a derivative basis, while complaining of that same shareholder’s past actions as part of his case on the merits, does not bar the estate from seeking that relief. The Bankruptcy Code recognizes the estate’s freedom to pursue its remedies, unfettered by the knowledge and past acts of its debtor-predecessor, in many ways; the “strongarm” provision of 11 U.S.C. § 544(a), which gives the trustee various transfer-avoidance powers under nonbank-ruptcy law “without regard to any knowledge of the trustee or of any creditor,” is only the most salient example. Id. at 609 n. 6 (citations omitted). The court in Schuster examined Minnesota law on reverse piercing of the corporate veil and noted several situations in which courts have been willing to recognize this remedy. See Warner v. Warner (In re Trust of Warner), 263 Minn. 449, 117 N.W.2d 224 (1962) (allowing reverse piercing of corporate veil to give effect to a testator’s wishes where specifically devised property was nominally titled in testator’s solely held corporation, and where testator and third parties had historically treated property as being owned by testator personally); Roepke v. Western Nat’l Mut. Ins. Co., 302 N.W.2d 350 (Minn.1981) (allowing reverse piercing of corporate veil to allow stacking of no-fault auto insurance coverage where decedent was the sole shareholder of a corporation which owned six insured motor vehicles, and where decedent and his family members had always treated the vehicles has if they were personally owned by the decedent); Cargill, Inc. v. Hedge, 375 N.W.2d 477 (Minn.1985) (allowing reverse piercing of corporate veil to enable individual principals of family farm corporation to claim homestead exemption in property titled in corporation’s name). The Schus-ter court focused on the equitable nature of the remedy of piercing the corporate veil and determined that the bankruptcy context provides a sufficient basis for allowing reverse piercing. 132 B.R. at 609-12. Similarly, in Smith v. Richels (In re Richels), 163 B.R. 760 (Bankr.E.D.Va.1994), the court concluded that the trustee’s action for reverse piercing of the corporate veil should survive the defendants’ motion to dismiss. The Richels court stated that “a decision to pierce the corporate veil depends largely on resolving questions of fact.” Id. at 763. The court cited the Schuster decision and determined that Virginia law did not preclude an action for reverse piercing of the corporate veil. Id. at 764. Because the court is aware of no South Carolina law accepting or rejecting the remedy of reverse piercing, the court adopts the well-reasoned opinion of the Schuster court and determines that the bankruptcy trustee in this case can assert that the debtor corporation was the alter ego of its subsidiary corporation. Also, this court agrees with the Richels court that the determination of whether to pierce the corporate veil in reverse depends largely on the facts of the case. Viewing the facts and inferences therefrom in the light most favorable to the trustee in this case, the court concludes that genuine issues of material fact exist regarding the trustee’s alter ego argument and that this issue should therefore be decided on its merits. For the foregoing reasons, the defendant’s motion for summary judgment is hereby denied. IT IS SO ORDERED.
6526082-28386	KENNEDY, Circuit Judge. This action arises out of an agreement between Moore, Owen, Thomas & Company (“MOT”) and L. Coleman Coffey and his son, Robert Bruce Coffey (“Coffeys”), for the purchase and sale of a marina and houseboat rental business. MOT executed a promissory note in payment for the rental company, and MOT’s owner, Thomas O. Moore (“Moore”), offered his personal guaranty. Moore now appeals the order of the District Court granting summary judgment in favor of the Coffeys and holding Moore liable as personal guarantor of the note. Moore argues that the District Court erred in granting the Coffeys’ motion for summary judgment because: (1) material issues of fact exist regarding whether the Coffeys fraudulently induced Moore to enter the guaranty agreement; and (2) Moore’s “obligation” on the guaranty cannot be determined without first determining MOT’s obligation to the Coffeys on the underlying purchase and sale agreement. Because we find genuine issues of material fact still exist, we reverse. I. The facts surrounding the commercial transaction at issue are set out in depth in the District Court’s Findings of Fact and Conclusions of Law. Moore, Owen, Thomas & Co. v. Coffey, Civil Action No. 87-64 (E.D.Ky.1990). The following summarizes the pertinent facts. In early November 1985, Moore, who conducted his business through a company he owned and controlled, MOT, began negotiations with the Coffeys for the acquisition of the Coffeys’ family-owned marina and houseboat rental operation, known as Lake Cumberland State Dock Incorporated (LCSDI). The business, located in Lake Cumberland State Park, Kentucky, possessed a large inventory, including the largest houseboat fleet in the Eastern United States, several autos and trucks, and marina equipment. The houseboats were owned by a partnership, Vacation Cruises, of which the Coffeys were the partners. Vacation Cruises leased the houseboats to LCSDI, which used them in the boat rental business. The remaining assets were owned by LCSDI. On December 11, 1985, the parties met to discuss the terms of a sale and agreed that the Coffeys would sell all of the stock of LCSDI to MOT. The parties further agreed upon a purchase price of five million dollars ($5,000,000). MOT was to execute a promissory note for $5,000,000 to be paid on an installment basis. To help induce the Cof-feys to finance the purchase price, Moore “personally guarantee^] the obligation of [MOT’s] debt to [the Coffeys].” MOT’s $5,000,000 note, Moore’s guaranty, and other documents were executed at a closing on December 31, 1985. The Agreement for Purchase and Sale of Shares consisted of the following essential terms: The agreement was for the purchase by MOT of all outstanding shares of LCSDI; The purchase price was $5 million; The first payment, a check in the amount of $200,000, was to be given to the Coffeys at closing ...; The purchaser, at closing, was also to deliver its note in the amount of $800,000 due on March 30,1986; MOT was also to assume certain indebtedness listed on a “Schedule A” ...; The balance of the $5 million purchase price was to be paid in accordance with a promissory note to be delivered by MOT at closing ...; The Coffeys were to have contributed, prior to closing, the Vacation Cruises houseboats to LCSDI’s capital so that, by closing, the Vacation Cruises houseboats would make up part of the assets of the corporation. Subsequent to the closing, the parties disputed whether the debts of the marina business were to be assumed and paid by MOT or whether they were to be paid by the Coffeys. In the fall of 1986, MOT filed suit seeking a declaration as to the assumption of debt issue and a set-off against the purchase price for alleged misrepresentations by the Coffeys. The Coffeys counterclaimed against MOT, seeking judgment for the unpaid balance of the note and a declaration on the assumption of debt issue. Simultaneously with their Answer and Counterclaim, the Coffeys sued Moore in state court to enforce his guaranty. Moore removed the case to federal court where it was consolidated with MOT’s action. Moore’s answer asserts several affirmative defenses and claims entitlement to any and all rights, claims, and defenses available to MOT. On January 31, 1990 (after bifurcating the issue of which party was responsible for the assumption of debt from the other issues in the litigation), the District Court concluded, as a matter of law, that not only had MOT agreed to pay $5,000,000 for the business, but also “MOT agreed to assume the indebtedness stated in the December 20, 1985 letter [$1,213 million] and is not entitled to a credit or offset against the purchase price owed to the Coffeys for any debts so assumed or paid.” Shortly thereafter, on April 11, 1990, the Coffeys moved for partial summary judgment on their counterclaim against MOT and on their complaint against Moore, seeking entry of a money judgment on MOT’s note and Moore’s guaranty. The District Court set the Coffeys’ motion to be heard on May 31, 1990. Due to pending settlement negotiations, Moore and MOT were subsequently granted two extensions and given until June 6, 1990 to respond to the Coffeys’ motion. On June 11, 1990, the parties told the District Court the case had been settled, but this settlement agreement eventually fell through. The Court then set another date, December 21, 1990, to hear the pending summary judgment motion. On December 20, 1990, the day before this scheduled hearing, MOT filed for Chapter 11 Bankruptcy relief. After recognizing that it was prohibited by the automatic stay from further proceeding against MOT, the District Court granted Moore another extension (un til January 7, 1991) in which to respond to the Coffeys’ summary judgment motion. On June 7, 1991, the District Court granted Moore another extension, until June 25, 1991, to file a response. However, on June 10, 1991, the court set aside the order extending Moore’s time and, after finding MOT in default on the terms of the promissory note, entered judgment against Moore as guarantor for approximately $5.5 million dollars. Then, on August 22,1991, after receiving a motion from Moore, the District Court vacated this judgment as having been “prematurely entered.” Moore was given ten (10) more days to file a response. Finally, on September 6, 1991, Moore filed a response to the Coffeys’ summary judgment motion. In this response, Moore pointed out that the only issue adjudicated to date was whether MOT agreed to assume the business’ debt; that his liability under the guaranty could not be determined until MOT’s “obligation” was determined; and that if MOT was fraudulently induced to enter the purchase and sale agreement, or if Moore was fraudulently induced to enter the guaranty, then Moore had no obligation. The Coffeys filed their reply brief on September 20,1991. Then, on October 10, 1991, Moore filed his affidavit in opposition to the Coffeys’ motion for summary judgment. In this affidavit, Moore claims that during the negotiations for the sale of the marina business, the Coffeys made the following material misrepresentations to Moore in order to induce him to sign the guaranty agreement: (a) The Coffeys represented that they had obtained or could easily obtain all necessary approvals from local, state, and federal authorities for the expansion of the marina business; (b) The Coffeys displayed materials and supplies to Moore and represented that they were purchased for an expansion of the marina business to commence in the Spring of 1986; (c) The Coffeys represented that an agreement was “all but done” by which the Commonwealth of Kentucky Department of Parks would reduce and stabilize the fees paid by the owner of the marina business to the Commonwealth of Kentucky; (d) The Coffeys represented that subsequent to the purchase of the marina business, the purchaser could easily obtain an extension of the lease and license with the Commonwealth, which instruments were necessary to the operation of the marina business; (e) The Coffeys represented that they had disclosed to Moore all liabilities of the corporation; and (f) The Coffeys gave Moore certain financial statements which they represented were prepared in accord with generally accepted accounting principles and which statements were represented to accurately state the operating income, assets and liabilities of the corporation. Moore goes on to claim that he relied upon these representations, that they were false, and that had Moore known they were false, he would not have signed the guaranty agreement. The day after Moore filed his affidavit, the District Court entered summary judgment against him. The District Court found that “[tjhere can be no dispute that MOTC has failed to perform; therefore, the Coffeys may properly look to MOTC’s guarantor, Thomas 0. Moore, to perform the obligations that MOTC failed to honor.” The court also found no merit to Moore’s claim that he was fraudulently induced to enter into the guaranty since Moore’s attorney was an integral part of the negotiations and Moore had proffered no evidence to support his fraud defense. Again, the court entered judgment against Moore, as guarantor, in the amount of $5,400,225 plus interest. On October 21, 1991, Moore filed a Motion to Modify Judgment in which he contended that the District Court overlooked the factual issues raised in the affidavit. The District Court denied the motion after finding that Moore’s affidavit was untimely and that the statements attempting to establish a fraud claim were “against the weight of the evidence adduced at the bench trial.” This timely appeal followed. II. This Court reviews a District Court’s grant of summary judgment de novo, making all reasonable inferences in favor of the non-moving party. EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. Further, “where the non-moving party faces a heightened burden of proof, such as clear and convincing evidence, he must show in opposition to the motion for summary judgment that he can produce evidence which, if believed, will meet the higher standard.” White v. Turfway Park Racing Ass’n., 909 F.2d 941, 944 (6th Cir.1990) (citing Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989)). Moore contends that material issues of fact exist (as established by his affidavit and deposition testimony) regarding whether the Coffeys fraudulently induced him to enter the guaranty agreement. Under Kentucky law, which governs this diversity action, the party asserting the fraud has the burden of establishing, by clear and convincing evidence, the following six elements: (1) a material misrepresentation; (2) which is false; (3) which was known to be false, or made recklessly; (4) made with inducement to be acted upon; (5) which is acted upon in reliance thereon; and (6) causes injury. Compressed Gas Corp. v. United States Steel Corp., 857 F.2d 346, 349-50 (6th Cir.1988), cert. denied, 490 U.S. 1006, 109 S.Ct. 1641, 104 L.Ed.2d 156 (1989) (citing Wahba v. Don Corlett Motors, Inc., 573 S.W.2d 357, 359 (Ky.Ct.App.1978)). “Kentucky law also recognizes a presumption of innocence and honesty against fraud claims.” Id. (citations omitted). On appeal, Moore focuses on several alleged misrepresentations that he claims fraudulently induced him to sign the guaranty and which create fact issues for a jury. These representations are: (1) The purchase and sale agreement, paragraph 5(e), provides that financial statements of November 30, 1985, incorporated into the agreement as Schedule B and prepared by accountant Dudley Shy-rock, “are complete and correct and fairly represent the financial condition of the Corporation as of the date thereof and ... such statements have been prepared in conformity with generally accepted accounting principles....” However, accountant Shyrock testified that the same financial statement overstated the assets of the corporation in the amount of $300,000. (2) The purchase and sale agreement, paragraph 5(k), states that the culmination of the transactions provided for shall not result in a default under or cancellation or termination of any continuing agreements, contracts, etc. According to Moore, the Coffeys stated during the negotiations for the sale of the marina business that they intended to contribute the Vacation Cruises houseboats to the capital of LCSDI. Several banks had financed the (Coffeys’) purchase of the houseboats and these banks all held security interests in the houseboats. Following the sale, the banks did, in fact, declare that the transfer of the ownership of the houseboats, from Vacation Cruises to MOT, constituted a default under the security agreements. (3) The alleged misrepresentations specifically set forth in Moore’s affidavit. A. The first issue the Court must address is whether Moore waived his fraud defense by failing to plead it as an affirmative defense as required by Fed.R.Civ.P. 8(c). Moore contends that fraud was adequately pled because MOT, in its amended complaint, specifically raised the fraud issue; and Moore, answering the Coffeys’ complaint, explicitly claimed entitlement to all “rights, claims, and defenses available to [MOT].” MOT’s fraud claim, however, is distinct from Moore’s fraud claim. MOT alleged (in its complaint) that the Coffeys made several false misrepresentations which induced it to enter the purchase and sale agreement. Moore claims that these same representations induced him to enter the guaranty agreement. Thus, MOT is claiming fraudulent inducement as to the underlying contract while Moore is claiming fraudulent inducement as to the guaranty agreement. Because these claims are different, Moore cannot “piggy-back” on MOT’s claim. It is well established, however, that failure to raise an affirmative defense by responsive pleading does not always result in waiver. See, e.g., Charpentier v. Godsil, 937 F.2d 859, 863 (3d Cir.1991). The Supreme Court has held that the purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971). “Thus, if a plaintiff receives notice of an affirmative defense by some means other than pleadings, ‘the defendant’s failure to comply with Rule 8(c) does not cause the plaintiff any prejudice.’ ” Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir. 1989) (quoting Hassan v. United States Postal Serv., 842 F.2d 260, 263 (11th Cir.1988)). See also Charpentier, 937 F.2d at 864 (“It has been held that a ‘defendant does not waive an affirmative defense if [h]e raised the issue at a pragmatically sufficient time and [the plaintiff] was not prejudiced in its ability to respond.’ ”) (quoting Lucas v. United States, 807 F.2d 414, 418 (5th Cir.1986) (quoting Allied Chemical Corp. v. MacKay, 695 F.2d 854, 855-56 (5th Cir. 1983)); Mackay, 695 F.2d at 855-56 (“Where the matter is raised in the trial court in a manner that does not result in unfair surprise ... technical failure to comply precisely with Rule 8(c) is not fatal.”); Pierce v. County of Oakland, 652 F.2d 671 (6th Cir. 1981) (affirmative defense not waived, even though not specifically pleaded, where defense clearly appears on face of the pleading and is raised in motion to dismiss). Here, Moore raised the issue of fraud in his response to the Coffeys’ motion for summary judgment and in his affidavit in opposition to the Coffeys’ motion. As a result, the Coffeys were aware, or at least should have been aware, that Moore intended to rely on a fraud defense. The Coffeys have not claimed that their case was prejudiced in any way by Moore’s failure to plead this defense, and in fact, this is the first time the Coffeys have even raised the waiver issue. It is troublesome, however, that Moore waited approximately seventeen (17) months from the time the Coffeys filed for summary judgment, and five years from the time the Coffeys first filed suit, to raise the defense of fraudulent inducement with respect to the guaranty agreement. Under Kentucky law, “one claiming to have been defrauded into making a contract has an option either to disaffirm the contract and seek its rescission or to affirm the contract and seek his remedy by an action for damages; he may not follow inconsistent remedies. He has but one election, and if he affirms the contract, his election is irrevocable and he condones the fraud.” Hampton v. Suter, 330 S.W.2d 402, 406 (Ky.1959) (citations omitted). See also Patel v. Patel, 706 S.W.2d 3, 4 (Ky.Ct.App. 1986) (reiterating the rule that where fraud has been committed in obtaining a contract it may be taken advantage of either by an affirmance of the contract and recovery of damages on account of the fraud or by a rescission of the contract). These cases do not specify a time frame for making the election. In an analogous context, however, Kentucky law makes clear that a purchaser of personal property who desires to rescind the sale for breach of warranty or fraud, must act “within a reasonable time, taking all circumstances into consideration.” See, e.g., Chaplin v. Bessire & Co., 361 S.W.2d 293, 294-95 (Ky.1962). Moreover, “[s]ince the question as to what is a reasonable time ... depends on the facts of a particular case, and is frequently a matter as to which different conclusions may reasonably be drawn, it is well settled that ordinarily the question is one of fact for the jury.” Id. at 295. Thus, it is for a jury to determine whether Moore’s delay in raising the defense of fraudulent inducement was reasonable. B. Assuming Moore has not waived his right to assert fraudulent inducement as a defense, the Coffeys contend that Moore has failed to raise a genuine issue of material fact because his affidavit was untimely and therefore should not be considered. It is undisputed that Moore only filed one affidavit in opposition to the Coffeys’ motion for summary judgment, and that this affidavit was not filed until thirty-four days after Moore’s response brief was due. The District Court has the discretion to refuse the filing of untimely affidavits. See, e.g., Western Chance No. 2, Inc. v. KFC Corporation, 957 F.2d 1538, 1544 (9th Cir.1992) (citing Fed. R.Civ.P. 56(e)). In the case at issue, however, the District Court chose to accept and consider the affidavit. Specifically, the District Judge stated: The court finds significant the fact that Moore’s affidavit was not submitted with his response filed on September 6, and Moore offers no explanation as to why he waited more than one month after the filing of his response before submitting the affidavit. Consequently, the court is certainly not obligated to consider Moore’s untimely and unauthorized affidavit; even so, it is well settled that decisions on the merits should not be avoided on the basis of “mere technicalities.” Foman v. Davis, 371 U.S. 178, 181 [83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962). Therefore, the court has considered the merits of Moore’s affidavit and finds it non-persuasive. Therefore, because the affidavit was accepted into the record, this Court is free to consider it. C. In considering Moore’s affidavit, we must determine whether it raises a genuine issue of material fact such that the District Court’s grant of summary judgment was improper. This Court has held that “[wjhere the allegation is fraud, summary judgment may be granted unless there is sufficient probative evidence produced which, if believed, would clearly and convincingly establish fraud.” White, 909 F.2d at 946 (citing Keck v. Wacker, 413 F.Supp. 1377, 1383 (E.D.Ky.1976)). See also Cloverdale Equipment Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989) (recognizing that “[wjhen confronted with a properly supported Motion for Summary Judgment, the party with the burden of proof at trial is obligated to provide concrete evidence supporting its claim and establishing the existence of a genuine issue of fact”). As the District Court recognized, the overriding purpose of Moore’s affidavit is to establish his defense of fraudulent inducement. In paragraph 7, Moore sets forth six specific representations made by the Coffeys, which Moore alleges were fraudulent. 1. On appeal, Moore focuses on paragraph (f) of his affidavit which reads, “The Coffeys gave to me certain financial statements which they represented were prepared in accord with generally accepted accounting principles and which statements were represented to accurately state the operating income, assets, and liabilities of the corporate entity, the stock of which was being purchased in order to consummate the sale.” Moore then uses the Coffeys’ accountant’s testimony that these financial statements overstated the value of assets by $300,000, to support his claim that a material issue of fact exists as to whether he was fraudulently induced to enter into the guaranty agreement. The Coffeys do not dispute the allegation that the assets of their marina business were overstated. Instead, they adopt the position of the District Court that Moore has failed to carry his burden of proof on fraudulent inducement because (1) Moore and his attorney were an integral part of all negotiations and meetings leading up to the sale on December 31,1985; (2) Moore was advised by his attorney and other attorneys specializing in tax matters regarding this proposed sale; and (3) Moore has proffered no evidence to support his fraud defense. It is well established under Kentucky law that “equity will grant no relief to a complaining party who has means of knowledge of the truth or falsity of representations .... ” McClure v. Young, 396 S.W.2d 48 (Ky.1965) (quoting Mayo Arcade Corp. v. Bonded Floors Co., 240 Ky. 212, 41 S.W.2d 1104 (1931)). The court in Mayo went on to explain that: If the means of knowledge of the alleged fraud were equally open to both parties the law will not interfere to protect the negligent. ... If the truth or falsehood of the representation might have been tested by ordinary diligence and attention, it is the party’s own folly if he neglected to do so, and he is remedyless. Mayo, 41 S.W.2d at 1109. Moore claims that nothing in the record indicates that either Moore, his attorneys or his accountants were aware (or could have become aware) of the misrepresentation. The Coffeys claim that the financial status of the business was not misrepresented, because records were available to Moore’s attorneys and accountants. Thus, there is an unresolved material issue of fact as to whether Moore could have discovered the overstatement through “ordinary diligence and attention.” Even assuming he could not, it would still be the province of a jury to determine whether Moore detrimentally relied on this $300,000 overstatement in signing the guaranty and consummating the deal. 2. A more difficult question arises in connection with the other alleged misrepresentations set forth in paragraph 7 of Moore’s affidavit. See supra at 1443-1444. The Coffeys contend that these representations (namely, 7(a), (b) (c) and (d)) are not actionable because they relate to future events. Under Kentucky law, representations as to future conduct will not support a fraud claim. See, e.g., Schroerlucke v. Hall, 249 S.W.2d 130, 131 (Ky.1952); Moseley v. Owensboro Municipal Housing Commission, 252 S.W.2d 880, 881 (Ky.1952) (“A mere expression of opinion as to a future event does not constitute fraud, at least where the subject of the opinion is not susceptible of definite knowledge.”). The court in Schroer-lucke noted, however, that there are exceptions and limitations to this general rule. Schroerlucke, 249 S.W.2d at 131. The court went on to state that: The weight of authority holds that fraud may be predicated on promises made without an intention of performance, the gist of which lies not in the breach of the agreement, but in the false representation of an existing intention to do certain things, made for the purpose of inducing another to enter into a contractual relation with him..... It has been pointed out in many decisions that promises made without intention of fulfillment in order to induce another to enter a contract may be as culpable and harmful as misrepresentations of existing facts. It has been held that even though the representations relate to the future, if they are positively stated in order to in duce another to do something and the party making the representations has no intention of performance, such statements may be misrepresentation of facts on which fraud may be predicated.... It is pointed out that the state of the promisor’s mind at the time he makes a promise is a fact which is exclusively within his own knowledge and if an intent is represented as being one thing whereas in fact it is the opposite, there is a prima facie presumption that the statement was made not as opinion but as a positive affirmation adapted to the end of inducing entrance into a contractual relation. Schroerlucke, 249 S.W.2d at 131-32. Although an issue involving a person’s state of mind is “not necessarily inappropriate” for summary judgment, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989), “state of mind is typically not a proper issue for resolution on summary judgment.” Wilson v. Setter, 893 F.2d 861, 866 (6th Cir. 1990), vacated on other ground, — U.S. -, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Thus, whether the Coffeys made the alleged misrepresentations with the intent to induce Moore to enter the guaranty agreement constitutes a question of fact for a jury to resolve. For example, paragraph 7(a) of Moore’s affidavit alleges that the Coffeys represented to Moore that they had obtained or could easily obtain all necessary approvals from local, state, and federal authorities for the expansion of the marina business. MOT alleges in its complaint, however (and Moore claims entitlement to all MOT claims), that: The Coffeys knew, in fact, that any expansion required the prior approval of the Corps of Engineers and, indeed, the Cof-feys had received a letter from the Corps of Engineers dated September 29, 1980 stating that the official policy was to deny approval of the expansion of the Marina unless the Corps was assured that such expansion would have no adverse impact on the privately owned commercial docks operating on Cumberland Lake. Additionally, paragraph 7(c) of Moore’s affidavit states that the Coffeys represented to Moore that an agreement was “all but done” by which the Commonwealth of Kentucky Department of Parks would reduce and stabilize fees paid by the owner of the marina business. Again, MOT’s complaint states that, “In fact, the Coffeys knew that such discussions were, at best, preliminary and tentative and that there was no basis in fact to support their misrepresentation that an agreement was close at hand. This ‘agreement’ was subsequently rejected by the Kentucky Parks Department.” Whether the Coffeys made these representations knowing they might not be performed, whether they made them with the sole purpose of inducing Moore to enter the guaranty, whether Moore relied to his detriment on these alleged misrepresentations, and whether Moore knew (or should have known) these representations were false but still elected to ratify the agreement, are all factual issues that make this case inappropriate for summary judgment.
170095-15213	OPINION PER CURIAM. Sto Corporation (Sto) brought a diversity action against Lancaster Homes, Inc. (Lancaster) in federal court, alleging state law claims of breach of warranty, breach of contract, and contribution. These same claims are the subject of ongoing litigation in North Carolina state court. The district court abstained from exercising jurisdiction under the principles articulated in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Because we agree that this case presents exceptional circumstances warranting abstention, we affirm the district court’s decision to abstain. However, the resolution of the state court proceedings may not completely dispose of Sto’s claims in federal court. We therefore reverse the district court’s order dismissing this case and remand for entry of a stay order pending the disposition of the case in state court. I. In November 1996 J. Kent and Martha Pepper instituted an action in North Carolina Superior Court. The Peppers sued Lancaster, a general contractor; Sto, a manufacturer of insulation; and Prime South Homes, a subcontractor who installs insulation. Their complaint alleged state law claims of negligence, breach of contract, breach of express warranty, and breach of implied warranty. The suit arose out of the construction of their house, which occurred in 1993. The Peppers maintained that faulty application and defective manufacture of the exterior insulation finish system caused water damage to the structure. Sto filed a cross-claim against Lancaster, alleging that if Sto was liable to the Peppers, Sto was entitled to indemnification or contribution from Lancaster. Lancaster brought third-party claims against Western Cedar Roofs, Inc. (the roofer), Coastal Window & Door Center (the window distributor), and Lincoln Wood Products, Inc. (the window manufacturer). After almost two years of discovery a jury trial commenced in state court on September 28, 1998. The case was tried for six weeks. Then, on November 6, 1998, after the Peppers and Lancaster had rested their case, the Peppers entered into a settlement agreement with Sto. On that same day the Peppers orally moved to dismiss all of their claims, including those against Lancaster and Prime South Homes. The judge granted the motion from the bench and dismissed the jury. However, the judge did not make any findings, and he never entered a written order of dismissal. A week later, on November 13, the Peppers assigned to Sto “all claims and causes of action against any person or entity ... for damages to [the Pepper] house.” Seven months later, on June 11, 1999, Sto filed a motion in state court to amend its pleadings to assert the assigned claims against Lancaster and Western Cedar Roofs. Lancaster opposed the motion to amend. Lancaster’s principal argument was that Sto cannot assert the Peppers’ claims because they were dismissed with prejudice. Sto’s motion to amend is still pending in state court. On November 5, 1999, five months after filing its motion to amend with the state court, Sto brought an action against Lancaster in federal court. Sto asserts its assigned claims — breach of express warranty, breach of implied warranty, and breach of contract — in the federal action. In the alternative, Sto alleges that it is entitled to contribution from Lancaster. Lancaster filed a motion to dismiss or stay the case, arguing that the district court should abstain from exercising jurisdiction pursuant to Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The district court granted the motion and dismissed the case. Sto then filed a motion for reconsideration, asking the district court to stay the action instead of dismissing it. The district court denied the motion for reconsideration. Sto appeals. II. We start with the premise that “[ajbstention from the exercise of federal jurisdiction is the exception, not the rule.” Id. at 813, 96 S.Ct. 1236. The federal courts have a “virtually unflagging obligation ... to exercise the jurisdiction given them.” Id. at 817, 96 S.Ct. 1236. However, Colorado River held that in certain exceptional circumstances, a federal court should abstain in the face of a state court’s contemporaneous exercise of jurisdiction. See id. at 818, 96 S.Ct. 1236. Colorado River abstention rests on “considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” Id. at 817, 96 S.Ct. 1236 (internal quotation marks and citations omitted). In order for a federal court to abstain under the Colorado River doctrine, two conditions must be satisfied. First, there must be parallel proceedings in state and federal court. “Suits are parallel if substantially the same parties litigate substantially the same issues in different forums.” New Beckley Mining Corp. v.. Int’l Union, UMWA, 946 F.2d 1072, 1073 (4th Cir.1991). Second, exceptional circumstances warranting abstention must exist. The Court in Colorado River announced several factors that are relevant in determining whether a particular case presents such exceptional circumstances. A federal court should consider whether a state court has assumed jurisdiction over property. In addition, such factors as “the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums” should be considered. Colorado River, 424 U.S. at 818, 96 S.Ct. 1236 (citations omitted). In Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Supreme Court added two additional factors: whether state or federal law is implicated and whether the state court proceedings are adequate to protect the parties’ rights. See id. at 23, 26,103 S.Ct. 927. We review a district court’s abstention on Colorado River grounds for abuse of discretion. See New Beckley, 946 F.2d at 1074. “The district court must nevertheless exercise its discretion in accordance with the Colorado River ‘exceptional circumstances test.’ ” Id. A. We agree with the district court that the state and federal cases are parallel proceedings. The issues are the same in the two forums. In state court Sto asserted an indemnity or a contribution claim against Lancaster. In addition, in state court Sto seeks to assert against Lancaster the causes of action that the Peppers assigned to Sto. In federal court Sto’s claims include the assigned claims from the Peppers as well as a claim for contribution against Lancaster. Sto argues that because the state court has not yet ruled on its motion to amend, the assigned claims have not entered the state court case. Thus, although there is a potential for parallel proceedings after the state court rules on the motion, Sto claims that the lawsuits as they currently stand are not parallel. We disagree. The federal court and the state court are in essentially the same position because Sto seeks to assert the same causes of action in both courts, namely, contribution/indemnity and the Peppers’ substantive claims that have been assigned to Sto. Therefore, we hold that Sto is attempting to litigate the same issues in both the state and federal forums. We recognize that although the issues are identical, the parties are not exactly the same in the two courts. Additional parties were involved in the state court suit at its inception, including Prime South Homes and the third-party defendants against which Lancaster asserted claims. In contrast, Sto chose to sue only Lancaster in the federal forum. However, the parties only need to be substantially the same for the Colorado River abstention doctrine to apply. Sto and Lancaster are the only parties that are both original defendants and involved in Sto’s motion to amend. Furthermore, Prime South Homes, Coastal Window & Door Center, and Lincoln Wood Products may no longer be involved in the state case because of the Peppers’ dismissal. That leaves Western Cedar Roofs as the only party in the state suit that is missing from the federal suit. The absence of this one party does not defeat the parallel nature of the lawsuits. See Nakash v. Marciano, 882 F.2d 1411, 1417 (9th Cir.1989) (“We should be particularly reluctant to find that the actions are not parallel when the federal action is but a ‘spin-off of more comprehensive state litigation.”). Accordingly, in addition to the identical nature of the issues, the parties in the two forums are now substantially the same. Thus, we hold that the first condition of the Colorado River doctrine is satisfied. B. We also hold that the district court did not abuse its discretion by concluding that this case presents the exceptional circumstances allowing for Colorado River abstention. We recognize, of course, that not all of the factors favoring abstention are present. This case does not involve property, and the federal court is just as convenient for the parties as the state court. However, a decision to abstain does not require the presence of all of the factors. Instead, the factors are to be applied “in a pragmatic, flexible manner with a view to the realities of the case at hand.” Moses H. Cone, 460 U.S. at 2, 103 S.Ct. 9271. When the remaining factors are examined in this case, two factors slightly favor abstention and one overwhelmingly favors it. First, because of the presence of at least one other party in the state suit, there is a possibility of piecemeal litigation. The threat of inconsistent results and judicial inefficiency, without more, does not satisfy this factor. See Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 13, 16 (1st Cir.1990). Exercising federal jurisdiction in this case would present a problem in addition to the inherent inefficiency of parallel litigation. Sto’s state court motion to amend seeks to include claims against Western Cedar Roofs as well as Lancaster. However, Western Cedar Roofs is not a defendant in the federal suit, and a federal court ruling that Lancaster is liable to Sto may not resolve the issue of Western Cedar Roofs’s liability. In other words, an issue might be left for resolution in state court. Cf. Am. Bankers Ins. Co. v. First State Ins. Co., 891 F.2d 882, 885 (11th Cir.1990) (the presence of an additional party in state court weighs slightly in favor of abstention because piecemeal litigation may result). At oral argument Sto suggested that any necessary parties could be joined in the federal suit. This suggestion does not change our conclusion. First of all, if Western Cedar Roofs is a nondiverse party, the federal court will have no jurisdiction. Furthermore, Sto was the one who chose to fashion its federal suit in the way that it did, and it has to accept those consequences. As the federal case stands now, the absence of a party may result in piecemeal litigation. This possibility lends some support for federal court abstention. Second, exercising jurisdiction would require the federal court to delve into complicated issues of North Carolina procedural law. The presence of state law issues in itself does not create a circumstance in which a federal court should surrender jurisdiction. After all, federal courts sitting in diversity regularly grapple with questions of state law. See Evans Transp. Co. v. Scullin Steel Co., 693 F.2d 715, 717 (7th Cir.1982). However, in “rare circumstances” the presence of state law issues will serve as a factor in a federal court’s abstention decision. Moses H. Cone, 460 U.S. at 26, 103 S.Ct. 927. See also Gordon v. Luksch, 887 F.2d 496, 498 (4th Cir.1989) (refusing to abstain because the case required interpretation of state law issues that are “uncomplicated and permit little legal disagreement”); Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 328 (2d Cir.1986) (refusing to abstain because the case did not present “novel or unique” state law issues). Resolving this case requires an interpretation of North Carolina Rule of Civil Procedure 41(a)(2). That rule provides that after a plaintiff rests her case, she is allowed to dismiss without prejudice only “upon order of the judge and upon such terms and conditions as justice requires.” The rule says nothing about whether the order has to be in writing or what kind of findings are required. The trial judge in the state court case said he was dismissing without prejudice, but he issued no findings and no written order. Determining the nature of the Peppers’ dismissal will not be a straightforward inquiry. Therefore, the questions of North Carolina procedure are another reason to favor federal court abstention in this case. Finally, the most persuasive factor in favor of abstention is the order in which the forums assumed jurisdiction. In considering this factor, we look not only to which action was filed first but also to “how much progress has been made in the two actions.” Moses H. Cone, 460 U.S. at 21, 103 S.Ct. 927. The state court action has made substantial progress. The state suit commenced three years before the federal one. There was extensive pretrial activity, including discovery and mediation, as well as a six-week jury trial. After the state judge orally granted the Peppers’ motion to dismiss, Sto filed a motion to amend its pleadings (to assert the assigned claims), Lancaster filed a response, and a hearing was held. Cf. Nakash v. Marciano, 882 F.2d 1411, 1413 (9th Cir.1989) (federal court abstention was proper where state court history consisted of 70 hearings, 100 depositions, and 300,000 documents). This long, active history in state court stands in stark contrast to the brief history in federal court. After Sto filed its complaint in federal court, the activity there was essentially limited to consideration of whether that action should be dismissed or stayed. Sto’s status in both suits also bears on the filing sequence (or litigation progress) factor. The fact that the same plaintiff files suit in federal court after first filing in state court weighs in favor of abstention, according to several courts. See Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 14 (1st Cir.1990); LaDuke v. Burlington N. R.R. Co., 879 F.2d 1556, 1561 (7th Cir.1989); Am. Int’l Underwriters, (Philippines), Inc. v. Continental Ins. Co., 843 F.2d 1253, 1260-61 (9th Cir.1988); Telesco v. Telesco Fuel & Masons’ Materials, Inc., 765 F.2d 356, 363 (2d Cir.1985). In the state court action, which was instituted first, Sto filed a motion to amend its pleadings in order to stand in the place of the Peppers, the original plaintiffs. Thereafter, Sto (as plaintiff) instituted the federal action. This, we believe, offers some support for abstention. Because of the presence of three factors favoring abstention, we hold that the district court exercised its discretion within the bounds of the Colorado River conditions. A federal court should be reluctant to decline to exercise its jurisdiction, but in the unique circumstances of this case abstention will promote the efficient and comprehensive resolution of the dispute. C.
3693087-28570	ARNOLD and MILLER, Associate Justices. This is a suit (under R.S. § 4915, 35 U.S.C.A. § 63) to obtain a patent. The invention claimed is an automatic stock quotation board for use in stock brokers’ offices. It is operated from a central station and is capable of giving nationwide service. It is a substitute for the older type of board on which quotations are written by hand. The board can be operated over a single wire, using the equal length electrical impulses which are familiar in telegraphy. Its novelty consists of elaborate mechanisms for selecting these impulses so that they will produce the proper letters and figures on the board. It is the first automatic stock market board which has had any commercial success. Patents were granted on some of the claims made in the application. These are not before us. The rejected claims which are in issue in this case attempt to cover a communications system which uses single impulse signals to display letters and figures on the board. Applicants in their brief set out two claims which they rely on as typical and show the novel features by italics: “147. A communication system comprising a transmitting station, a receiving station, and a single channel of communication between said stations, means at said transmitting station for sending isochronous messages made up of equal length impulse intervals, certain of said intervals predetermined for primary selection, certain others for secondary selection, and certain others for ultimate operation, a plurality of groups of indicators at said receiving station representing a number of groups of stock classifications, means responsive to the first mentioned of said impulse intervals for selecting one group of the plurality of groups of indicators, means responsive to the second mentioned of said intervals for selecting one of the indicators of the selected group, and mechanism responsive to the last mentioned of said intervals of impulses for operating the selected indicator. “172. In a stock quotation distribution system, a plurality of character carrying devices for each stock item whose quotation is to be displayed with certain devices allocated to range classifications of the quotation, means responsive to a quotation message comprising groups of equal length code combinations of signal intervals, one group of which conveys information relative to the stock item to be qiwted, another group of which conveys information relative to the price thereof, and a further group of which conveys information relative to the range or character of the item, means operated by said responsive means for translating said first and third recited groups into selective conditions for selecting a character carrying device for operation, and means for translating said second group into mechanical operations for actuating the selected character carrying device.” In rejecting appellants’ claims the Patent Office held that they represented simply a combination of ideas disclosed in former patents. It found that the improvements which had been added to make the design commercially profitable required a high degree of skill in the art of communications, but not invention. The findings of the District Court are in agreement with those of the Patent Office. This Court has held that where a trial court finds lack of invention, thereby sustaining the decision of the Patent Office, that finding will not be disturbed unless actually inconsistent with the evidence. Therefore, the only question before us is whether the evidence here is sufficient to rebut the strong presumption in favor of the Patent Office and the trial court. The record shows that the appellant Potts, who claims to be the inventor, is an employee of the Teletype Corporation and has assigned his patent rights to that corporation. Public records disclose that the Teletype Corporation is a wholly owned subsidiary of West ern Electric. Western Electric, in turn, is a manufacturing subsidiary owned and controlled by the American Telephone & Telegraph Company. Since 1920 the appellant has been a member of the research staff of a subsidiary of the Bell System. The organization, activities, and control of the Bell System are matters of public record. It is an interlocking group of companies, controlled by the American Telephone & Telegraph Company. Through its subsidiaries it controls between eighty and ninety per cent of local telephone service and ninety-eight per cent of the long distance telephone, wires of the United States. It furnishes nearly all the wire facilities used in radio program transmission. Through its patents on teletypewriter machines, it dominates a service which to a large extent has supplanted ordinary telegraph service. News telephoto service is dependent on Bell plants. Telephone service across the ocean is a monopoly with the Bell System. The dominance of the Bell System extends beyond the regulated field of communications. Through its subsidiaries it manufactures more than ninety per cent of the telephone equipment in the United States. It owns and controls a large number of patents not only for instruments used in communications but also in the electrical arts, including radio transmitting and receiving equipment, therapeutic devices, audiphones, public address equipment for outdoor and indoor use, photoelectric cells and race timing equipment. In many of these products the Bell System has a dominating position and sometimes a controlling position by virtue of the control or exclusive licensing of patents. This position both in and outside the communications field has been maintained in part through the expenditure of vast sums on engineering research. $242,541,-569 was spent for these purposes between 1916 and 1935, which is probably more than the total budget of any university in the United States during this period. Electronic physics, chemistry, applied mathematics, optical phenomena and other fields of inquiry are under constant study. All patents on devices discovered in its laboratories are assigned to some unit of the Bell System. Thus in large part through its research facilities the Bell System has come to own or control over 9,000 United States patents. It is licensed under nearly 7,000 more. In these research laboratories about 4500 people are employed, half of whom are engineers, chemists, metallurgists and physicists. They represent nearly all the best talent in the field. In addition to research in laboratories the Bell System has made arrangements with other groups for mutually exclusive exchange of information which is available to no independent inventor. In determining whether an invention has been made the character of the article or process, its novelty, and its advance over the prior art are merely evidentiary. The ultimate question is the character of the contribution made by the inventor. There is no invention without inventive genius. The objective advance does not identify or evaluate the individual achievement. The individual achievement is becoming more and more difficult to identify and evaluate as organized research becomes our greatest source of invention. And so the trend of recent decisions has been to emphasize more and more the character of the individual achievement rather than the qualities of the product in determining patentability. We' have held that a step forward which, considered in connection with the highly developed condition of the art, might reasonably be expected from the research of highly trained specialists is not invention. Thus neither the result of great industry in experimental research nor the successful product of a gradual process of experimentation over a period is invention. Routineering, even by the most highly trained specialists, step by step improvements, the carrying forward of a new and more extended application of the art, are not invention. In order to evaluate the contribution of the inventor the court must reconstruct the conditions under which he worked, with emphasis on the contribution of others. This method is sharply outlined in the case of Marconi Wireless Telegraph Co. v. United States, because a different point of view was there considered and rejected by the Supreme Court. In his dissenting opinion Mr. Justice Frankfurter argued that inventions have always been “parts of an evolution, the culmination at a particular moment of an antecedent process.” He asserts that the majority was wrong in using “reconstruction by hindsight” of the state of the art in such a way as to show that the final step made by Marconi was one which could have been made by an ordinary expert of high skill. He objects to the process by which “a judge of unusual capacity for understanding scientific matters is, by a process of intricate ratiocination, able to demonstrate that anyone could have drawn precisely the inferences that Marconi does * * . He repudiates the flash of genius doctrine which depends entirely upon an evaluation of individual accomplishment. Nowhere is this point of view better stated. Yet the Court declined to accept it. Both the majority opinion, declaring the patent in question invalid, and Mr. Justice Rutledge, in a separate dissent, are concerned only with an evaluation of the individual achievement of Marconi, considered in connection with the accomplishment of others in the ' Id. In other words, patents are not intended as a reward for a highly skilled scientist who completes the final step in a technique, standing on the shoulders of others who have gone before him. By the same token they are not intended as a reward for the collective achievement of a corporate research organization. Today routine experimentation in the great corporate laboratories can produce results beyond the imagination of twenty years ago. But such contributions to industrial art are more often than not the step by step progress of an entire group, not the achievement of an individual. Such an advance is the product not of inventive ability but of the financial resources and organizing ability of those who operate the laboratories. The practice of requiring the expert employees of research organizations to assign in advance all their future patent rights to the organization, itself reflects the respective contributions of the organization and the individual to these so-called inventions. The “inventor” is paid only a salary, he gets no royalties, he has no property rights in the improvements which he helps to create. To give patents for such routine experimentation on a vast scale is to use the patent law to reward capital investment, and create monopolies for corporate organizers instead of men of inventive genius. The corporate research laboratory of today has given us the greatest invention of modern times, the knowledge of how to invent. Under a disorganized system of invention a hundred men would hunt for the needle in the haystack, the prize going to the successful finder while the efforts of the others served only to scatter the hay in all directions. Organized invention has changed the entire process. Each man is given a section of the hay to search. The man who finds the needle shows no more “genius” and no more ability than the others who are searching different portions of the haystack. If we fail to take notice of these facts about modern industrial research we create a situation in which the corporate research laboratory may become a device to control the step by step progress of applied science. Because the captive inventors in these great laboratories have no control over their patents, the corporation may distribute the very right to apply for a patent among its employees in accordance with sound business policy. And thus the research laboratory becomes a sort of sub-Patent Office, granting or withholding patents to its employees for considerations foreign either to the patent law or to the provision in the Constitution which authorizes it. Mr. Charles Kettering, head of one of our greatest research organizations, testifying in the Temporary National Economic Committee investigation, explains the operation of such a corporate sub-Patent Office: “Mr. Cox. How many employees do you have in this organization? “Mr. Kettering. About 500. “Mr. Cox. Are they all engineers? “Mr. Kettering. No; we have all types of men; we have physicists, mathematicians, engineers, and fine mechanics, and all that sort of thing. “Senator King. They are all skilled men? “Mr. Kettering. Yes. “Mr. Cox. As a result of the work which you carry on in your organization, Mr. Kettering, or in your department, to be more precise, are inventions made on which patents are required? “Mr. Kettering. Yes. “Mr. Cox. And does General Motors take out those patents? “Mr. Kettering. Yes. “Mr. Cox. What arrangements does General Motors have with the employees with respect thereto ? “Mr. Kettering. We all sign the regular patent agreement that we have with an institution of that kind; we assign all the patents directly to General Motors. “Mr. Cox. Is the employee who makes an invention of that kind rewarded in any way beyond his usual compensation? “Mr. Kettering. We usually do; yes. You see, when you are working on an invention — well, we don’t work on inventions; we try to solve some industrial problem; try to make a new piece of apparatus. Now, you never know what inventions are going to be useful and what are not, because as you come upon the problem, you can’t tell what is important and what is not important, so we have to kind of study the whole thing on the whole front. It may go off at that angle or this angle. What we would rather do is to try to reward the whole laboratory, to keep the individuals working together. If you gave the reward lo a particular individual for his particular invention, then he would be secretive about the thing, so we try to reward the whole laboratory, if they do good. In other words, if he makes some things that are valuable, we reward the laboratory, because one department may make am important contribution one year and another department another year; but then we always give a little particular bonus to the fellow who did that job. “Mr. Cox. In other words, you have both a collective reward and an individual reward. “Mr. Kettering. Yes. You have to keep the collective reward in order to keep the thing from crystallizing and segregating. A one-man invention isn’t very possible these days, because there are so many ramifications that we have to work together as a .group. I think that one of the hardest problems we have had is to get scientific men to sit down a'nd work on a common problem, because their whole training has been individualistic, but if you get a good problem and can divide it up into a number of sections and assign the metallurgical department to the metallurgical part and assign another problem to the physicist and another to the chemist, and so forth, then our particular job is to correlate that so when their work comes together, it is the thing we are trying to get made. It works out pretty nice. You see our stuff fails so often; it is about 99 per cent failure, and our biggest problem is to keep the men enthusiastic, especially, a young fellow will come in and set up something and develop it, and it doesn’t work, then he is all down. We say, ‘You are just an amateur failure; you have to learn how to fail over and over and over again,’ but after they understand that, there is no trouble about working together then. “Mr. Cox. That research is really carried on, then, as a collective enterprise? “Mr. Kettering.' It depends entirely on the problem; sometimes the problem will be a particular problem. Suppose we were working on the metallurgy of that particular thing, that would be assigned to an individual in the metallurgical department. If that happened to be a part of this, then it would have to be correlated to that, don’t you see? But our job as managers is to develop the principles of correlation. “Mr. Cox. Do you have any opinion, Mr. Kettering, as to whether the possibility of the ácquisition of a patent plays any part in stimulating the men who work under your direction? “Mr. Kettering. Oh, yes. “Mr. Cox. You think it does? “Mr. Kettering. The younger fellows, you know, the United States patent — it is just like a diploma to those boys. We like to see them get them. “Mr. Cox. Well, patents in each case, however, are acquired by the company. “Mr. Kettering. Sure. This fellow took it out, you see. “Mr. Cox. He applies for it. “Mr. Kettering. Yes. “Mr. Cox. You have made a number of inventions, haven’t you, Mr. Kettering? “Mr. Kettering. Yes; quite a number. “Mr. Cox. Have you ever acquired any patents on those personally? “Mr. Kettering. I don’t think I ever took out a personal patent. I may have one or two, but not that I could name offhand. “Mr. Cox. But patents were taken out on those inventions by the companies. “Mr. Kettering. Whatever company I was with; yes. That is the way I like to do. “Mr. Cox. When you were making those inventions did the possibility of the acquisition of a patent serve to stimulate you in your work? “Mr. Kettering. No; I wouldn’t say it did; I would say it came more as a reward rather than as an incentive, because when you are working on a problem, you see, I have had to give an order to get people to understand. They say, ‘What is research?’ Well, a research worker is a fellow who is working on something he doesn’t understand- — he is trying to solve a problem. * * * * * “Mr. Cox. But is it your opinion that the patent as such nevertheless does serve to stimulate the work by inventors? “Mr. Kettering. As I say, it comes to them, especially these younger boys, as a reward of merit and it is very highly prised, and of course patents are very valuable things in many different ways. It has been mentioned here that there are many different ways by which a patent can be valuable.” The process which Mr. Kettering describes is the opposite of the individual invention rewarded by the patent law and the Constitution. We are bound to take judicial notice that it is the normal process in great laboratories, not only because of Mr. Kettering’s testimony, but also because, as has been shown, a research laboratory which controls the creative ability of all its employees can operate in no other way, either in justice to the stockholders or as a means of keeping up its organizational morale. The burden of proof of patentability is on the applicant. Prior to the development of corporate research the circumstances under which the alleged invention was made were ordinarily not examined. The oath of the applicant was considered as a sufficient prima facie showiiig of invention provided the article itself was sufficiently novel. But today where the record shows that the real party in interest is a vast research organization possessing advantages not available to the outside scientist it would be contrary to modern experience to assume that the burden of proving the presence of inventive genius has been met without evidence disclosing the level of the art in that research organization at the time the application is made. This principle simply emphasizes the importance of individual achievement, which is the aim of the patent law. This is not to say that an employee of a great research laboratory may not make an invention. It is only a recognition of the obvious fact that some further proof that he has made one, beyond the blueprints and specifications in the application, is required with respect to the products of those laboratories. It is sometimes argued that the investments in research by dominant corporate groups should be protected by law in order to encourage them to spend more money for research and thus extend that domination. The reading of such a principle into the patent law should require an act of Congress. It should not be established by judicial legislation on the basis of a fiction that the collective effort of a corporate group is the work of an individual. Nor is the purpose of the Constitution served by a construction of law that gives to a dominating group the power to control the cooperative achievements of large groups of scientists. The well-known dominance of the Bell System over research in the entire communications field raises the question whether a patent should be granted, where the record shows it to be a product of that vast system of research, without a detailed showing of the present state of the art developed by its scientists and the extent, if any, to which some individual’s contribution rose above the level of their common capacity. We are bound to interpret the patent law in the light of its purpose declared by the Supreme Court, to reward individual and not group achievement. Having that purpose in mind we cannot ignore the plain facts of the technological revolution which has occurred in the research laboratory. In this case we have before us a complicated improvement in electrical communication made by an employee of and assigned to a research group that has long dominated and raised to a new level the application of science to communication. These circumstances, in the absence of evidence of individual achievement, create at least an inference that the machine is a step by step improvement, the result of skill and experimentation in the use of existing knowledge, and not an invention. That inference, which is not rebutted in the record, supports the findings of the court below that there is no invention in this case. Judge EDGERTON concurs in this opinion. Affirmed. Report of the Federal Communications Commission on the Investigation of the Telephone Industry in the United States, made pursuant to Pub. Res. No. 8, 74th Congress. House Doc. No. 340, 76th Cong., 1st Sess. (1939). One judge, with perhaps too disarming frankness, has said that the judicial estimate is a matter of feeling rather than logic. Warren Telechron Co. v. Waltham Watch Co., 1 Cir., 1937, 91 F.2d 472, 473. Learned Hand, J.: “* * * we take no recourse to any supposed absolute objective test, * * * we think that such tests are delusive, if used as more than rough rules for guidance. The question is one of evidence in each case, and the issue necessarily depends upon a shifting standard, just as in eases of due care. “Objective tests may be of value vaguely to give us a sense of direction, but the final destination can be only loosely indicated. An invention is a new display of ingenuity beyond the compass of the routineer, and in the end that is all that can be said about it. Counts cannot avoid the duty of divining as best they can what the day to day capacity of the ordinary artisan will produce. This they attempt by looking at the history of the art, the occasion for the invention, its success, its independent repetition at about the same time, and the state of the underlying art, which was a condition upon its appearance at all. Yet. when all is said, there will remain cases when we can only fall back upon such good sense as we may have, and in these we cannot help exposing the inventor to the hazard inherent in liypostatizing such modifications in the existing arts as are within the limited imagination of the journeyman. There comes a point when the question must be resolved by a subjective opinion as to what seems an easy step and what does not. We must try to correct our standard by such objective references as we can, but in the end the judgment will appear, and no doubt be, to a large extent personal, and in that sense arbitrary.” Kirsch Mfg. Co. v. Gould Mersereau Co., Inc., 2 Cir., 1925, 6 F.2d 793, 794. In the report of the National Patent Planning Commission (on which the Commissioner of Patents serves as Executive Secretary) we find a recommendation for “the enactment of a declaration of policy that patentability shall be determined objectively by the nature of the contribution to the advancement of the art, and not subjectively by the nature of the process by which the invention may have been accomplished.” [The American Patent System, Report of the National Patent Planning Commission, p. 15 (1943)]. Whatever one may think of the wisdom of such a recommendation it affirmatively shows that the Commission recognizes that legislation is required before we may ignore the subjective test in evaluating the inventor’s contribution. Sinclair Refining Co. v. Coe, 1943, 78 U.S.App.D.C. —, 138 F.2d 673. “Obviously, if the problem which Donner solved was one which could have been solved by the ordinary chemist skilled in the art working toward the same end and under like conditions, what Donner did was not invention.” Donner v. Sheer Pharmacal Corp., 8 Cir., 1933, 64 F.2d 217, 221, certiorari denied 290 U.S. 658, 54 S.Ct. 73, 78 L.Ed. 570; quoted in Minnesota Mining & Mfg. Co. v. Coe, 1938, 69 App.D.C. 217, 220, 99 F.2d 986, 989. Minnesota Mining & Mfg. Co. v. Coe, supra, note 4. See note 5 of that opinion, quoting Atlantic Works v. Brady, 1883, 107 U.S. 192, 199, 200, 2 S.Ct. 225, 27 L.Ed. 438: “The process of development in manufactures creates a constant demand for new appliances, which the skill of ordinary head-workmen and engineers is generally adequate to devise, and which, indeed, are the natural and proper outgrowth of such development. Each step forward prepares the way for the next, and each is usually taken by spontaneous trials and attempts in a hundred different places. To grant a single party a monopoly of every slight advance made, except where the exercise of invention somewhat above ordinary mechanical or engineering skill is distinctly shown, is unjust in principle and injurious in its consequences.” Rembert v. Coe, 1943, 78 U.S.App.D.C. —, 136 F.2d 793; L. Sonneborn Sons, Inc., v. Coe, 1939, 70 App.D.C. 97, 104 F.2d 230, 233. Radtke Patents Corp. v. Coe, 1941, 74 App.D.C. 251, 122 F.2d 937, 954. Standard Cap & Seal Corp. v. Coe, 1941, 75 U.S.App.D.C. 60, 124 F.2d 278, 281. “* * * Ingenuity was required to effect the adaptation, but no more than that to be expected of a mechanic skilled in the art. “Strict application of that test is necessary lest in the constant demand for new appliances the heavy hand of tribute be laid on each slight technological advance in an art.” Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 91, 92, 62 S.Ct. 37, 41, 86 L.Ed. 58. As pointed out in a report published by the Temporary National Economic Committee of 1938: “All inventions derive from common knowledge; they differ in the quality and magnitude of their contributions to the industrial arts. As respects origin they fall into three rather distinct classes': First, creations which exhibit individual insight; second, derivative processes, worked out by professional staffs, equipped with laboratory facilities; third, variations upon a basic design such as a dozen workmen would independently contrive. The mark of the first is genius; of the second, professional competence; of the third, mechanical ability. It was patience on the part of the man of genius which the Constitution wished to reward; the mere display of capacity to contrive has been repeatedly frowned upon by the United States * * * Supreme Court.” Hamilton, Patents and Free Enterprise, p. 156, Mon. No. 31, Investigation of Concentration of Economic Power, Temporary National Economic Committee, 76th Cong., 3d Sess. (1941). (Apparent misprint deleted.) 1943, 320 U.S. 1, 63 S.Ct. 1393, 87 L.Ed. 1731. Ibid., page 62 of 320 U.S., page 1421 of 63 S.Ct., 87 L.Ed. 1731. Ibid. Ibid., page 63 of 320 U.S., page 1422 of 63 S.Ct., 87 L.Ed. 1731. Ibid. Ibid., page 64 of 320 U.S., page 1422 of 63 S.Ct., 87 L.Ed. 1731. Ruben Condenser Co. v. Copeland Refrigeration Corp., 2 Cir., 1936, 85 F.2d 537, 541: “But all new combinations are not patentable combinations. Especially in chemical and electrical experiments happy solutions may be reached by testing out variants reached merely by permutations of old elements. Possibly the patent law should protect such industrial achievements, but it does not; the work of the well-equipped laboratory which by trial and error checks off a series of formulas, may be the proper path of industrial advance, as the Germans found it to be before the Great War; but it does not demand what we call ‘invention.’ Something more personal to the inventor, something which better measures his imaginative powers, is required.” Quoted in Rembert v. Coe, 1943, 78 U.S.App.D.C. —, 136 F.2d 793, n. 4.
3880511-20619	OPINION KOZINSKI, Chief Judge: When tragedy strikes and a family member suffers a violent death, we try to remember our dearly departed as they were in life, not as they were at the end. But suppressing gruesome mental images of their demise becomes difficult when autopsy or crime scene photographs are published for the world to see. We consider whether individuals have a federal privacy right to control public dissemination of a family member’s death images. I. FACTUAL BACKGROUND In 1983, Brenda Marsh’s two-year-old son, Phillip Buell, died from a severe head injury while in the care of her then-boyfriend, Kenneth Marsh. Charged with Phillip’s death, Marsh claimed that Phillip was injured when he fell off the couch and landed on the fireplace hearth. Marsh was convicted of second-degree murder and imprisoned. Almost two decades later, he filed a second habeas petition, which the San Diego County Superior Court granted at the request of the San Diego District Attorney. The DA’s recently-consulted expert couldn’t conclude beyond a reasonable doubt that Phillip was the victim of child abuse. Marsh’s conviction was set aside and he was released. After his release, Marsh sued the County of San Diego and the medical personnel who conducted Phillip’s autopsy. During this proceeding, Marsh’s attorneys deposed Jay S. Coulter, the San Diego Deputy District Attorney who had prosecuted Marsh for murder in 1983. Coulter disclosed that, while he was Deputy District Attorney, he photocopied sixteen autopsy photographs of Phillip’s corpse. Coulter also mentioned that, after he retired, he kept one of these as a “memento of cases that I handled.” Coulter eventually gave a copy of this photograph, along with a memorandum he wrote titled “What Really Happened to Phillip Buell?”, to a newspaper and a television station. Brenda Marsh sued Coulter and the County of San Diego under 42 U.S.C. § 1983 alleging that the copying and dissemination of Phillip’s autopsy photographs violated her Fourteenth Amendment Due Process rights. Defendants moved to dismiss the claims relating to Coulter’s conduct after he retired, which the district court granted. The parties then cross-moved for summary judgment, which the district court granted in favor of defendants. Marsh appeals. We review de novo. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001) (motion to dismiss); Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir.1990) (summary judgment). II. ANALYSIS To prevail under 42 U.S.C. § 1983, a plaintiff must prove that he was “deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). A plaintiff must also show that the federal right was “clearly established” at the time of the violation, otherwise government officials are entitled to qualified immunity. See Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). A. Federal Right Marsh claims she has a federal right to control the autopsy photographs of her child. She can’t point to a federal statute guaranteeing this right, but she argues that such a right exists as a matter of substantive due process and also as a state-created liberty interest protected by procedural due process. 1. Substantive Due Process The Supreme Court has recognized that “one aspect of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment is ‘a right of personal privacy, or a guarantee of certain areas or zones of privacy.’” Carey v. Population Servs. Int'l, 431 U.S. 678, 684, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (quoting Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)). This right to privacy protects two kinds of interests: “One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (footnote omitted). With respect to the latter, we’ve held that the right encompasses the “most basic decisions about family and parenthood....” California v. F.C.C., 75 F.3d 1350, 1361 (9th Cir.1996); see also Roe, 410 U.S. at 152-53, 93 S.Ct. 705 (noting that the constitutional right to privacy extends to marriage, procreation, contraception, family relationships, child rearing and education). No court has yet held that this right encompasses the power to control images of a dead family member, but the Supreme Court has come close in a case involving the Freedom of Information Act. In National Archives and Records Administration v. Favish, 541 U.S. 157, 170-71, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004), the Court held that death scene photographs fell under an exemption to FOIA’s general requirement of public access to government information, which carved out “law enforcement records or information ... [that] could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). The Court found that the right to “personal privacy” included the “surviving family members’ right to personal privacy with respect to their close relative’s death scene images.” 541 U.S. at 170, 124 S.Ct. 1570. The Court had little difficulty “finding in our case law and traditions the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased family member’s remains for public purposes.” Id. at 167, 124 S.Ct. 1570. “Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.” Id. at 168, 124 S.Ct. 1570. Finding the right grounded in the common law, the Court had no need to determine whether it is also grounded in the Constitution. See id. at 170, 124 S.Ct. 1570 (“It would be anomalous to hold in the instant case that the statute provides even less protection than does the common law.”). Other courts have also recognized family members’ privacy right in a decedent’s death images. See Melton v. Bd. of Cnty. Comm’rs of Hamilton Cnty., 267 F.Supp.2d 859, 865 (S.D.Ohio 2003) (“[F]amilies have a right not to be embarrassed or humiliated by the outrageous display or exposure to public view of the remains of a loved one.”); Catsouras v. Dep’t of Cal. Highway Patrol, 181 Cal.App.4th 856, 874, 104 Cal.Rptr.3d 352 (2010) (recognizing a violation of a right to privacy over death images where “publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern”) (internal citations and quotation marks omitted). However, like Favish, these cases described the well-established common law right, not a constitutional right. So far as we are aware, then, this is the first case to consider whether the common law right to non-interference with a family’s remembrance of a decedent is so ingrained in our traditions that it is constitutionally protected. We conclude that it is. A common law right rises to the level of a constitutional right if it is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal citations and quotation marks omitted). The Favish Court considered our history and traditions, and found that “th[e] well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased has long been recognized at common law.” Favish, 541 U.S. at 168, 124 S.Ct. 1570. For precisely the same reasons, we conclude that this right is also protected by substantive due process. The long-standing tradition of respecting family members’ privacy in death images partakes of both types of privacy interests protected by the Fourteenth Amendment. First, the publication of death images interferes with “the individual interest in avoiding disclosure of personal matters.... ” Whalen, 429 U.S. at 599, 97 S.Ct. 869. Few things are more personal than the graphic details of a close family member’s tragic death. Images of the body usually reveal a great deal about the manner of death and the decedent’s suffering during his final moments — all matters of private grief not generally shared with the world at large. Second, a parent’s right to control a deceased child’s remains and death images flows from the well-established substantive due process right to family integrity. See Rosenbaum v. Washoe County, 663 F.3d 1071, 1079 (9th Cir.2011) (“The substantive due process right to family integrity or to familial association is well established.”). The interest of parents “in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests.... ” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). A parent’s right to choose how to care for a child in life reasonably extends to decisions dealing with death, such as whether to have an autopsy, how to dispose of the remains, whether to have a memorial service and whether to publish an obituary. Therefore, we find that the Constitution protects a parent’s right to control the physical remains, memory and images of a deceased child against unwarranted public exploitation by the government. To violate substantive due process, the alleged conduct must “shock[] the conscience” and “offend the community’s sense of fair play and decency.” Rochin v. California, 342 U.S. 165, 172-73, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Given that burial rites “have been respected in almost all civilizations from time immemorial” and “are a sign of the respect a society shows for the deceased and for the surviving family members,” the Favish Court reasoned that unwarranted public exploitation of death images degrades the respect accorded to families in their time of grief. Favish, 541 U.S. at 167-68, 124 S.Ct. 1570. Mutilation of a deceased family member’s body, desecration of the burial site and public display of death images are the kind of conduct that is likely to cause the family profound grief and therefore “shocks the conscience” and “offend[s] the community’s sense of fair play and decency.” Rochin, 342 U.S. at 172-73, 72 S.Ct. 205. Marsh claims that when she learned that Coulter sent her son’s autopsy photograph to the press, she was “horrified; and suffered severe emotional distress, fearing the day that she would go on the Internet and find her son’s hideous autopsy photos displayed there.” Marsh’s fear is not unreasonable given the viral nature of the Internet, where she might easily stumble upon photographs of her dead son on news websites, blogs or social media websites. This intrusion into the grief of a mother over her dead son— without any legitimate governmental purpose — “shocks the conscience” and therefore violates Marsh’s substantive due process right. 2. Procedural Due Process The Due Process Clause of the Fourteenth Amendment protects individuals against deprivations of “life, liberty, or property.” “A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (internal citations and quotation marks omitted). Like property rights, liberty interests can be defined by state law. “States may under certain circumstances create liberty interests which are protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Once a state creates a liberty interest, it can’t take it away without due process. See Swarthout v. Cooke, — U.S. -, 131 S.Ct. 859, 862, 178 L.Ed.2d 732 (2011). A state official’s failure to comply with state law that gives rise to a liberty or property interest may amount to a procedural (rather than substantive) due process violation, which can be vindicated under 42 U.S.C. § 1983. See Carlo v. City of Chino, 105 F.3d 493, 497-500 (9th Cir.1997). Not every state law respecting privacy will create a liberty interest protected by the Constitution. “State law can create a right that the Due Process Clause will protect only if the state law contains ‘(1) substantive predicates governing official decisionmaking, and (2) explicitly mandatory language specifying the outcome that must be reached if the substantive predicates have been met.’ ” James v. Rowlands, 606 F.3d 646, 656 (9th Cir.2010) (quoting Bonin v. Calderon, 59 F.3d 815, 842 (9th Cir.1995)). In order to contain the requisite “substantive predicates,” “the state law at issue must provide more than merely procedure, it must protect some substantive end.” Bonin, 59 F.3d at 842 (internal citations and quotation marks omitted). California Code of Civil Procedure § 129 states: [N]o copy, reproduction, or facsimile of any kind shall be made of any photograph, negative, or print, including instant photographs and video tapes, of the body, or any portion of the body, of a deceased person, taken by or for the coroner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the coroner, except for use in a criminal action or proceeding in this state which relates to the death of that person, or except as a court of this state permits, by order after good cause has been shown and after written notification of the request for the court order has been served, at least five days before the order is made, upon the district attorney of the county in which the post mortem examination or autopsy has been made or caused to be made. This section shall not apply to the making of such a copy, reproduction, or facsimile for use in the field of forensic pathology, for use in medical, or scientific education or research, or for use by any law enforcement agency in this or any other state or the United States. Cal.Civ.Proc.Code § 129. The Legislative Counsel’s Digest explained that the law serves California’s policy of protecting “individuals and families against unconscionable invasions of their privacy” and that “[t]he reproduction, for unrelated or improper purposes, of any photograph of the body of a deceased person taken in the course of a post mortem examination or autopsy is contrary to such policy.” The sponsoring Assembly-member, F. James Bear, described the purpose of section 129 as vindicating “the family of a deceased personf’s] ... right of privacy to limit reproduction of gruesome autopsy photographs.” Thus, it’s clear that this law was intended to create a liberty interest in a family member’s death images. But to determine whether it is a liberty interest protected by the Constitution, we must look for the required substantive predicates and mandatory language. James, 606 F.3d at 656. Section 129 meets the first requirement because it contains substantive limits on official discretion. The law provides that no copy of an autopsy photograph may be taken except for use in a criminal action or a proceeding related to the death of that person. Cal.Civ.Proc.Code § 129. The law thus provides substantive criteria— whether an action is criminal or related to the death of the person — that cabins an official’s discretion. See Carlo, 105 F.3d at 498-99. Section 129 also satisfies the second requirement of explicit and mandatory language limiting an official’s discretion: “[N]o copy, reproduction, or facsimile of any kind shall be made of any [autopsy photograph] ...” unless court approval is obtained or other specific exemptions apply. Cal.Civ.Proc.Code § 129 (emphasis added). These exceptions limit the protected liberty interest by allowing the use of autopsy images in criminal trials relating to the decedent, with court approval, for use by law enforcement, or for medical and scientific education and research. Id. Coulter’s initial use of the autopsy photographs in the section 1983 case against Kenneth Marsh was clearly “for use in a criminal action or proceeding ... which relates to the death of that person,” Cal. Civ.Proc.Code § 129, and is therefore exempted. Marsh argues that Coulter’s later instances of copying and distribution were not for permissible purposes under the statute. Coulter argues that he was entitled to access the autopsy photographs after the trial concluded because Kenneth Marsh brought successive habeas petitions and so the photographs might be necessary for any re-trial. It’s debatable whether Coulter’s retention of Phillip Buell’s autopsy photograph after he retired is a violation of section 129. He had no need for the photograph for any criminal trial once he was no longer a prosecutor. But Coulter claims that the photograph was part of his training materials for child abuse detection seminars, and therefore falls under section 129’s exemption “for use in medical, or scientific education or research.” CaLCiv. Proe.Code § 129. Marsh at least raises a triable issue of fact on whether Coulter had a valid educational purpose in keeping the photograph after he retired. It’s clear that Coulter’s submission of the autopsy photograph to the press after he retired was not for legitimate law enforcement, criminal investigation or educational purposes. Rather, it appears Coulter was frustrated that Kenneth Marsh’s conviction was overturned, and wanted to prove that Marsh was in fact guilty by publishing his story, “What really happened to Philip Buell?”, along with what he thought was a damning photograph. Coulter’s interest in being vindicated in the court of public opinion is not the type of use that section 129 exempts. Marsh sufficiently alleges a violation of section 129 and, therefore, a deprivation of a state-created liberty interest. The district court held that section 129 does not give rise to a state-created liberty interest because it believed that constitutionally protected interests are limited to core prisoners’ rights. The court relied on Sandin, where the Supreme Court explained that state-created liberty interests “will be generally limited to freedom from restraint which ... imposes a typical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. 2298. But this limitation only applies to cases involving prisons. Sandin doesn’t speak to liberty interests created by generally applicable laws because the facts didn’t present that issue. The Court in Sandin acknowledged that it wasn’t performing the “ordinary task of construing a statute defining rights and remedies available to the general public.” Id. at 481, 115 S.Ct. 2293. Although the district court cited Campbell v. Burt, 141 F.3d 927 (9th Cir.1998), which suggested that “[t]he Supreme Court has recently limited the doctrine to a certain core of prisoners’ rights,” id. at 930, we’ve recognized elsewhere that “the Sandin test appears to apply specifically to prisoners who have been convicted.” Carlo, 105 F.3d at 498; see also Picray v. Sealock, 138 F.3d 767, 770 (9th Cir.1998) (distinguishing San-din from “other contexts [where] a state statute can create a liberty interest protected by the due process clause”). We know that statutory laws of general applicability can create a liberty interest that is constitutionally protected. See, e.g., Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980); Brittain v. Hansen, 451 F.3d 982, 999-1000 (9th Cir.2006); Carlo, 105 F.3d at 493, 498-99; Meador v. Cabinet for Human Res., 902 F.2d 474, 477 (6th Cir.1990); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 798-99 (11th Cir.1987). In enacting section 129, California consciously and deliberately gave its citizens the right not to have government officials engage in unwarranted reproduction of autopsy photographs or other death images of deceased relatives. Once a state law creates that right, the Constitution steps in to protect it against deprivations without due process of law. Therefore, Coulter’s violation of section 129 provides an additional basis for Marsh’s section 1983 claim. B. Under Color of State Law
493742-12106	VANCE, Circuit Judge: The convictions appealed in this case arise out of a complex scheme to defraud investors purchasing industrial revenue bonds. Howard Alexander, James Brewer and I. Vasilios, participants in the plan, were found guilty of mail fraud, securities fraud and conspiracy to commit those offenses. 18 U.S.C. § 1341; 15 U.S.C. §§ 77q(a), 77x; 18 U.S.C. § 371. Appellants Alexander and Vasilios were tried jointly; Brewer was tried alone. Their cases, however, have been consolidated for this appeal. The principal issues presented to this court are peculiar to the appellant urging them: whether the trial court unduly restricted Alexander’s cross-examination of a prosecution witness; whether Vasilios’ motion for severance should have been granted; whether the trial court erred in failing to give a cautionary instruction to the jury before a coconspirator’s hearsay statements were admitted against Brewer; and whether the evidence was sufficient to support Vasilios’ conviction. After considering the arguments advanced by the parties, we conclude that the convictions should be affirmed. Cross-Examination Alexander complains that the trial judge unduly restricted his cross-examination of R. J. Allen by refusing to allow him to ask whether the witness knew that Alexander had planned to testify against him in a Texas criminal action. Alexander contends that this refusal denied him the opportunity to establish Allen’s bias and that the denial was constitutional error since it prevented him from exercising his sixth amendment right to confront his accuser by effectively cross-examining him. Although the trial judge is granted discretion to restrict the scope and extent of cross-examination, e. g., Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), this discretionary authority comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment. United States v. Bass, 490 F.2d 846, 858 n. 12 (5th Cir. 1974), quoted in United States v. Elliott, 571 F.2d 880 (5th Cir.), cert, denied, 439 U.S. 953,. 99 S.Ct. 349, 58 L.Ed.2d 344 (1978). Impeachment of a witness comports with constitutional standards when defense counsel is allowed to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). The record in the case is replete with references discrediting Allen and his testimony. Jurors were aware that he was testifying pursuant to a plea bargaining agreement; that he was a convicted felon; that he had a drinking problem; and that his business association with Alexander had been marred by frequent conflicts over management of their jointly-owned underwriting firm. When defense counsel tried to show bias through Alexander’s intention to testify against Allen, the trial judge disallowed the line of questioning because Alexander’s decision to testify was based on a plea bargaining agreement under which he pleaded nolo contendere. The government argued for exclusion, claiming that it could not bring out Alexander’s nolo plea in rebuttal. The lower court erroneously adopted this position. Contrary to the government’s contention all evidentiary uses of a prior nolo plea are not prohibited. The government’s brief on appeal cites United States v. Morrow, 537 F.2d 120 (5th Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977), as support, but Morrow is inapposite, since it held only that a plea of nolo contendere may not be used for the purposes of impeachment or to show knowledge or intent in a proceeding different from that where the plea was offered. Id. at 142 (footnote omitted). In Alexander’s case, the nolo plea would have been used to expose all of the factors surrounding the creation of Allen’s alleged bias by revealing Alexander’s motive for testifying in the Texas trial. It would not have been used to impeach the defendant, Alexander, or to show his intent to commit similar crimes. Cf. Kilgore v. United States, 467 F.2d 22 (5th Cir. 1972) (plaintiff’s prior nolo plea in criminal tax fraud case could be used in cross-examining his character witness in subsequent suit for tax refund). Even though the court erred in holding the evidence inadmissible, we find that the defendant was not prejudiced by this error. Allen was subjected to rigorous and effective cross-examination resulting in over one hundred fifty pages of transcript. The jury was sufficiently apprised of other bases on which Allen’s credibility was vulnerable to attack. See United States v. Teller, 412 F.2d 374 (7th Cir. 1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1603, 29 L.Ed.2d 118 (1971). The issue of possible bias was also brought before the jury through Allen’s testimony concerning past business dealings with Alexander. We conclude that the restrictions on cross-examination imposed in the lower court did not rise to the level of interference with Alexander’s sixth amendment rights and that the error in limiting the cross-examination was not so prejudicial as to result in an abuse of discretion. See Gordon v. United States, 438 F.2d 858 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56 (1971). Motion for Severance and Subsequent Trial Four days before trial, Vasilios moved for a trial separate from and subsequent to that of his codefendant, Brewer, in order to introduce his exculpatory testimony. Because Brewer’s appointed counsel withdrew from the case on the eve of trial, the lower court severed Brewer’s trial from that of Vasilios and Alexander. Vasilios’ request for a subsequent trial, however, was denied. Vasilios concedes that the decision to grant a motion for severance or for a subsequent trial is vested in the sound discretion of the trial court, United States v. Martinez, 486 F.2d 15 (5th Cir. 1973) (severance); Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970) (trial sequence), but argues that the court’s failure to grant his motion in this case occasioned such prejudice that his trial was rendered fundamentally unfair. See Byrd v. Wainwright. Brewer submitted affidavits to the district court stating that he would be willing to testify at Vasilios’ trial if it were held after his trial. The proffered testimony indicated that Vasilios exercised no independent authority in his job with Allen’s underwriting firm and that his job responsibilities in the firm were directed toward cutting expenses and delivering purchased bonds. This testimony would have proved, Vasilios maintains, that he could not have been involved in the fraudulent practices charged in the indictment. Although a severance was ultimately granted in this case, the guidelines announced by this circuit to be considered in determining when a refusal to grant a severance motion constitutes a denial of fair trial may be of aid in deciding whether the court’s refusal to order Vasilios’ trial subsequent to Brewer’s resulted in a denial of due process: (1) Does the movant intend or desire to have the codefendant testify? How must his intent be made known to the court, and to what extent must the court be satisfied that it is bona fide? (2) Will the projected testimony of the codefendant be exculpatory in nature, and how significant must the effect be? How does the defendant show the nature of the projected testimony and its significance? Must he in some way validate the proposed testimony so as to give it some stamp of verity[?] (3) To what extent, and in what manner, must it be shown that if severance is granted there is likelihood that the codefendant will testify? (4) What are the demands of effective judicial administration and economy of judicial effort? Related to this is the matter .of timeliness in raising the question of severance. (5) If a joint trial is held, how great is the probability that a codefendant will plead guilty at or immediately before trial and thereby prejudice the defendant, either by cross-defendant prejudice or by surprise as it relates to trial preparation? Byrd v. Wainwright, 428 F.2d at 1019-20 (footnotes omitted). Here, however, all of the Byrd criteria were not met. Specifically, the “demands of effective judicial administration and economy of judicial effort” compel the affirmance of the lower court’s action. When faced with the decision to postpone Vasilios’ and Alexander’s trial until after Brewer’s, the court had the choice of either delaying Alexander’s day in court or severing Alexander’s and Vasilios’ joint trial, which would have resulted in three separate trials on the same factual testimony. These alternatives are not outweighed by Vasilios’ need for Brewer’s testimony. Indeed, most of the same facts had been brought out earlier by the government. Further, there was ample evidence available to bring Vasilios into the sphere of illegal activities charged in the indictment. The trial court did not abuse its discretion in failing to order a later trial. Judgment of Acquittal Vasilios also argues that the lower court erred in failing to grant his motion for judgment of acquittal. He contends that the evidence is insufficient to support the jury’s finding that he had guilty knowledge of the fraudulent activities charged in the indictment and that he had a specific intent to defraud. On appeal, our standard of review is substantially the same as the standard used in determining whether the evidence is sufficient to support a guilty verdict, taking the view most favorable to the government. United States v. Fontenot, 483 F.2d 315, 319 (5th Cir. 1973). The record reveals that, upon the dissolution of Allen and Alexander’s partnership, Vasilios assumed Alexander’s administrative responsibilities at the underwriting firm and covered for Allen during his frequent drinking binges. He exercised control over the firm’s funds. Vasilios provided false and misleading information to the accountant preparing a financial statement for a shell company for whom the underwriting firm was handling a bond issue. These circumstances reveal that Vasilios was accorded a position of power and influence over the activities of the underwriting firm, which, he concedes, was involved in the fraudulent sale of bonds. It may easily be inferred that he was a part of the conspiracy to defraud purchasers of the industrial revenue bonds. See United States v. Netterville, 553 F.2d 903 (5th Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 189, 54 L.Ed.2d 135 (1977). The false representations made to the accountant indicate that he possessed specific intent to defraud. The lower court did not err in refusing to grant a judgment of acquittal as to Vasilios. Coconspirator Instructions Brewer’s sole contention is that the court erred in failing to give an Apollo -type instruction to the jury when extra-judicial statements of his alleged coconspirators were introduced into evidence at his trial. See United States v. Apollo, 476 F.2d 156 (5th Cir. 1973). We do not agree. The instruction given was in substantial compliance with Apollo. Even if it were not, however, the standards and procedures established in Apollo were recently abolished by this court in United States v. James, 590 F.2d 575 (5th Cir. 1979). Although the requirements established in James are to be applied prospectively only, id. at 583, we hold that reversal for a trial court’s failure to follow Apollo is not mandated when no substantial rights of the defendant were violated. AFFIRMED. . Also raised as errors are insufficient evidence supporting Alexander’s conviction: admission of a coconspirator’s hearsay statement against Vasilios when the conspiracy was insufficiently proved; and fatal variance between the indictment and proof adduced at the trial of Vasilios and Alexander. We have reviewed these contentions, but find them to be without merit. . Allen was indicted on conspiracy, mail fraud and securities fraud charges along with Alexander. He pleaded guilty prior to trial.
4072364-11680	DECISION AND ORDER ELIZABETH A. WOLFORD, District Judge. I. INTRODUCTION This is an appeal from an order of the United States Bankruptcy Court for the Western District of New York, entered on October 18, 2013. (Dkt. 1-5). In that order, Bankruptcy Judge Paul R. Warren granted the motion of the Chapter 7 Trustee (“Trustee”) to find the debtor-appellant, Charles R. Livecchi, Sr. (“Debtor”), in civil contempt of the Bankruptcy Court’s February 28, 2011 order. The Bankruptcy Court directed Debtor to comply with its February 28, 2011 order requiring that Debtor turn over certain assets to Trustee, and further ordered sanctions for Debtor’s failure to comply. On appeal, Debtor, proceeding pro se, challenges the contempt order, and raises a number of additional objections to prior orders of the Bankruptcy Court. (Dkt. 1). For the reasons that follow, the October 18, 2013 order of the Bankruptcy Court is affirmed. II. BACKGROUND On April 8, 2009, Debtor filed a voluntary Chapter 11 petition with the Bankruptcy Court for the purpose of restructuring his finances. On January 21, 2010, Trustee filed a motion to convert the case to Chapter 7, alleging that Debtor was not pursuing a realistic Chapter 11 plan. According to Trustee, Debtor was not planning to sell his properties to pay creditors, but rather was planning to utilize speculative recoveries from various pending lawsuits to cover his debts. Debtor’s creditors examined Debtor and reported to the Bankruptcy Court that Debtor had no intention to sell his properties to satisfy his debts. On September 21, 2010, the Bankruptcy Court granted Trustee’s motion to convert the case to a Chapter 7 case pursuant to 11 U.S.C. § 1112. At the time of filing his original petition, Debtor included a number of vehicles and parcels of real property in his bankruptcy schedules, but he did not claim those vehicles or real properties to be exempt. Among the assets listed in Debtor’s bankruptcy schedules were the following vehicles: (1) a 2005 Chevrolet Silverado Pickup; (2) a 2003 Chevrolet Suburban; (3) a 2006 Harley Davidson V-Rod; and (4) a 2005 Chevrolet Malibu. (Dkt. 1-5). After Debtor refused to respond to Trustee’s requests regarding Debtor’s intentions for these and other properties, Trustee filed a motion pursuant to 11 U.S.C. § 542 on January 27, 2011, for an order to compel Debtor to turn over his assets. Debtor opposed the motion. On February 28, 2011, the Bankruptcy Court granted Trustee’s motion in a “turn over order” and directed Debtor to surrender the keys and title documents for the four vehicles to Trustee. Debtor appealed the order, and on December 9, 2011, this Court affirmed the turnover order of the Bankruptcy Court. See Livecchi v. Gordon, 11-CV-6178L, 2011 WL 6148627, at 1-2 (W.D.N.Y. Dec. 9, 2011) (Larimer, J.). Debtor’s motion for reconsideration was denied on December 23, 2011. See Livecchi v. Gordon, No. 6:ll-cv-06178-DGL, 2011 WL 6148627 (W.D.N.Y. Dec. 09, 2011) (order denying motion for reconsideration). Trustee reports multiple unsuccessful attempts over the course of approximately 21 months to get Debtor to comply with the turnover order. (Dkt. 6 at 3). On September 13, 2013, Trustee filed a motion with Bankruptcy Court to hold Debtor in contempt and to sanction Debtor for his refusal to comply with the turnover order. (Dkt. 1-1). Debtor opposed the motion and also filed a supplemental objection to the request. (Dkt. 1-2,1-3). The Bankruptcy Court heard the arguments of both parties on October 10, 2013, and subsequently issued an order on October 13, 2013, holding Debtor in civil contempt and imposing a civil sanction of $100.00 for each day that Debtor continued to fail to comply with the turnover order. (Dkt. 1-5). The contempt order further awarded Trustee $500.00 in attorneys’ fees. (Id.). On October 28, 2013, Debtor filed an appeal of the contempt order with this Court. (Dkt. 1). Debtor’s bankruptcy proceedings remain pending in the Bankruptcy Court. III. DISCUSSION A. Standard of Review “District courts are vested with appellate jurisdiction over bankruptcy court rulings pursuant to 28 U.S.C. § 158(a).” In re Plumeri, 434 B.R. 315, 327 (S.D.N.Y.2010). On appeal, the Court “may affirm, modify, or reverse a bankruptcy judge’s judgment, order, or decree or remand with instructions for further proceedings.” Fed. R. Bankr.P. 8013. “Generally in bankruptcy appeals, the district court reviews the bankruptcy court’s factual findings for clear error and its conclusions of law de novo.” In re Charter Commc’ns, Inc., 691 F.3d 476, 482-83 (2d Cir.2012). B. Scope of Appeal Although Debtor’s brief raises a number of objections to prior actions of Trustee and rulings of the Bankruptcy Court during Debtor’s bankruptcy proceedings, the only issue properly before the Court at this juncture is the propriety of the Bankruptcy Court’s October 18, 2013 contempt order. See Livecchi, 2011 WL 6148627, at 1 (“[T]he appeal is nonetheless limited in scope to review of the order appealed from ... Debtor may not use this interlocutory appeal as a vehicle to challenge virtually everything that has occurred thus far in his bankruptcy case.”). In his briefs to the Court, Debtor attempts to contest the underlying turnover order, arguing that he was not properly allowed his homestead, motor vehicle, and tools of trade exemptions under state and federal law. (Dkt. 5 at 6-7; Dkt. 7 at 3-4). This issue is not presently before the Court. Any challenge to the turnover order should have been raised in Debtor’s prior opposition to Trustee’s motion for a turnover order or at the appeal from the order granting that relief. See In re Best Payphones, Inc., 432 B.R. 46, 60 (S.D.N.Y.2010) (finding that appellant’s argument that was not raised at the appropriate time before the Bankruptcy Court “has been waived and will not be considered by this Court.”), aff'd, 450 Fed.Appx. 8 (2d Cir.2011). Accordingly, the Court will only address the issue of whether the Bankruptcy Court erred in finding that Debtor was in contempt of its February 28, 2011 order, and whether the Bankruptcy Court abused its discretion in imposing sanctions on Debtor for his failure to comply with the same. C. Finding of Civil Contempt “A court may hold a party in civil contempt for failure to comply with an order where (1) the order is clear and unambiguous, (2) proof of noncompliance is clear and convincing, and (3) the party has not been reasonably diligent in attempting to accomplish what was ordered.” In re Stockbridge Funding Corp., 158 B.R. 914, 917 (S.D.N.Y.1993). Here, the order of the Bankruptcy Court is clear and unambiguous. The Bankruptcy Court directed Debtor to “turnover within five days from the date of this order the original title certificates and keys for the debtor’s 2005 Chevrolet Sil-verado pickup; 2003 Chevrolet Suburban; 2006 Harley Davidson V-Rod; and 2005 Chevrolet Malibu and advise the Trustee of the location of each said vehicle.... ” (Dkt. 1-1 at 5). Further, the proof of Debtor’s noncompliance is clear and convincing, and it is apparent that Debtor has not been reasonably diligent in complying with the order. In fact, Debtor has verbally indicated that he has no intention of complying with the turnover order. At the October 10, 2013 motion hearing, the Bankruptcy Court asked Debtor if he was still in possession of the four vehicles referenced in the court’s February 28, 2011 order. (Dkt. 1-10 at 7). Debtor responded that he had the vehicles, and that they were “[a]round Rochester here, parked in different areas.” (Dkt. 1-10 at 7). The Bankruptcy Court asked Debtor if he was going to cooperate in turning over the vehicles or in allowing Trustee to determine the value of the vehicles. (Dkt. 1-10 at 9). Debtor responded: “I’m saying that whatever comes out of this court, I will appeal.” (Dkt. 1-10 at 9). Based on the arguments presented during the October 10 hearing, as well as the papers presented, the Bankruptcy Court determined that Debtor did not intend to cooperate in the surrender of his four vehicles. (Dkt. 1-10 at 9-10). Accordingly, the Bankruptcy Court imposed sanctions on Debtor in the amount of $100 for each day that he did not comply with the turnover order, and further awarded Trustee $500.00 in attorneys’ fees. (Dkt. 1-5). Debtor does not deny that he has failed to comply with the turnover order, nor does he contend that he has been reasonably diligent in- attempting to comply with the order. Similarly, Debtor has not offered a reasonable explanation for his failure to comply. Although Debtor argues that his compliance with the turnover order would “mean that [Debtor] would find himself without transportation and without any means of obtaining said transportation,” (Dkt. 7 at 5), this argument would have been more appropriately addressed during the initial turnover order motion and prior appeal. Debtor is now faced with an order of the Bankruptcy Court, affirmed by this Court, that sets forth in clear and unambiguous language that Debtor must turnover to Trustee his four vehicles. (Dkt. 1-1 at 4). Any failure to comply with this directive supports a finding that Debtor is in civil contempt of a court order. See In re Stock-bridge, 158 B.R. at 917 (finding the bankruptcy court’s finding of contempt was supported by “clear and convincing evidence” where the court “clearly and unambiguously” directed debtor to turn over documents to Trustee and debtor refused to comply); In re Kalpana Elecs., Inc., 58 B.R. 326, 338-89 (Bankr.E.D.N.Y.1986) (determining a finding of civil contempt and the imposition of sanctions was appropriate where the sole shareholder and officer of the debtor willfully refused to turn over the keys to a property as ordered by the bankruptcy court). It is apparent from Debtor’s own statements at the October 10 motion hearing that he has not complied with the turnover order and he does not intend to comply. As a result, the Bankruptcy Court’s findings of fact are supported by the record and are not clearly erroneous. Furthermore, there is no error in the Bankruptcy Court’s legal conclusion that Debtor was in contempt. D. Imposition and Calculation of Sanctions The Bankruptcy Court did not abuse its discretion in imposing sanctions on Debtor for his civil contempt. “Pursuant to a bankruptcy court’s civil contempt power, derived from 11 U.S.C. § 105(a), a court may impose sanctions to remedy violations of its orders.” In re Free, 466 B.R. 48, 56-57 (Bankr.W.D.Pa.2012). “ ‘Although the decision to impose sanctions is uniquely within the province of a bankruptcy court, the appellate court nevertheless needs to ensure that any such decision is made with restraint and discretion.’ ” In re Plumeri, 434 B.R. at 327 (quoting In re Highgate Equities, Ltd., 279 F.3d 148, 152 (2d Cir.2002)) (internal alterations omitted). “ ‘A bankruptcy court’s decision regarding an award of fees and sanctions is subject to review for an abuse of discretion.’ ” Hawkins v. Levine, 426 B.R. 36, 40 (N.D.N.Y.2010) (quoting Yarinsky v. Saratoga Springs Plastic Surgery, 310 B.R. 493, 498 (N.D.N.Y.2004)). “Civil contempt sanctions may be fashioned to coerce compliance or to compensate a complainant for his actual losses, and are to be distinguished from criminal contempt sanctions which are intended to punish a contemnor or to vindicate a court’s authority.” In re Stockbridge, 158 B.R. at 918. “Sanctions which accrue daily until compliance are generally civil, while fixed penalties are usually criminal.... ” Id. at 919 (determining that a fixed fine of $1,000 imposed by the bankruptcy court was an impermissible criminal penalty for a civil contempt).
7415313-25700	Reversed by published opinion. Senior Judge LAY wrote the opinion, in which Judge RUSSELL and Judge MOTZ joined. OPINION LAY, Senior Circuit Judge: Paul Eugene Mason was convicted of importation and sale of drug paraphernalia and participation in drug distribution conspiracies in violation of federal law. After his conviction, Mason was released pending the completion of the forfeiture phase of his trial, scheduled for the following morning. Before the commencement of the forfeiture proceedings, Mason attempted suicide in his parked van outside the courthouse by plunging a ten-inch butcher knife into his chest. He survived two major surgeries. Following motions filed by both the defense and the Government for a competency hearing, the district court ordered a psychological examination of Mason pursuant to 18 U.S.C. § 4244(b), which authorizes an evaluation to determine a convicted defendant’s competency to be sentenced. This examination was conducted at the Federal Correctional Institute in Butner, North Carolina (“FCI Butner”). By letter filed with the court, on February 16, 1993, the warden informed the court that the psychological evaluation showed that Mason was suffering from a mental disease or defect for which he required care and treatment. Although the defendant’s original motion did not specify whether a hearing should be held on Mason’s competency to stand trial during the first phase of the trial, the Government’s motion requested a hearing to determine whether Mason was competent to proceed with the forfeiture trial as well as a specific request for an evaluation to determine whether Mason was insane at the time of the commission of the offenses with which he was charged. On the same date that the warden’s letter was filed with the court, the defendant filed a motion for a new trial based on his alleged incompetence during the first phase of the trial and requested a hearing to present evidence on this motion. On February 22, 1993, the district court held a hearing to determine Mason’s competence to proceed to the forfeiture phase of the trial and to sentencing. At that time, defense counsel orally moved for a competency hearing to determine Mason’s competence during the first phase of the trial. The court denied that motion, as well as the defendant’s motion for a new trial. The court ordered Mason be placed in the custody of the Attorney General to determine his present mental condition pursuant to 18 U.S.C. § 4244. Defense counsel filed a renewed motion for a new trial or for a hearing to determine Mason’s competence during the first phase of the trial on April 9, 1993, and submitted an affidavit in support of that motion. The district court denied the motion for substantive reasons, although it found the motion untimely. On April 20,1993, defense counsel filed a third motion for a new trial or for a retrospective competency hearing, which was similarly denied. In its final order denying the motions, the court threatened defense counsel with sanctions if they raised the issue again. By letter dated April 27, 1993, the warden at FCI Butner informed the court that Mason no longer suffered from a mental disease or defect that would prevent him from proceeding to the forfeiture phase of the trial and to sentencing. A hearing was held on May 20, 1993, and the court determined Mason was competent to continue. The forfeiture and sentencing proceedings took place on June 28, 1993. This appeal followed. ANALYSIS On appeal, the defendant raises three issues: (1) the sufficiency of the indictment; (2) the authority of the United States Customs Service to search his place of business; and (3) whether the district court abused its discretion in failing to provide him with an evidentiary hearing to determine whether he was competent during the first phase of his trial. We find no merit to the first or second claim raised by the defendant. We now more fully address Mason’s challenge to the district court’s refusal to grant a competency hearing to determine his competence during the first phase of the trial. The conviction of a defendant when he is legally incompetent is a violation of due process. Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 903-04, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). The test for mental competence is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960). Congress has safeguarded this right by providing that trial courts conduct competency hearings under the following circumstances: At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. 18 U.S.C. § 4241(a). The district court must sua sponte order a competency hearing if reasonable cause is demonstrated. United States v. Fuller, 15 F.3d 646, 649 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 2689, 129 L.Ed.2d 820 (1994); Hernandez-Hernandez v. United States, 904 F.2d 758, 760 (1st Cir.1990). Whether reasonable cause exists under § 4241 is a question left to the discretion of the trial court. United States v. West, 877 F.2d 281, 285 n. 1 (4th Cir.), cert. denied, 493 U.S. 869, 110 S.Ct. 195, 107 L.Ed.2d 149 (1989); Streetman v. Lynaugh, 835 F.2d 1521, 1525-26 (5th Cir.1988). This case thus requires us to determine whether the district court abused its discretion in determining no reasonable cause existed to order a § 4241 competency hearing. Under the abuse of discretion standard, this Court may not substitute its judgment for that of the district court; rather, we must determine whether the court’s exercise of discretion, considering the law and the facts, was arbitrary or capricious. James v. Jacobson, 6 F.3d 233, 239 (4th Cir.1993). One of the ways in which a district court may abuse its discretion is in applying erroneous legal principles to the case. Id. The district court found that the rule of law governing its determination of whether to grant a competency hearing was the standard outlined in United States v. Teague, 956 F.2d 1427 (7th Cir.1992). In Teague, the defendant’s trial counsel never raised the issue of competency in the trial court and appellate counsel raised the issue for the first time on appeal. The Seventh Circuit held that “where the issue of the defendant’s mental competency to stand trial was not raised in the trial court, in order to justify a retrospective competency hearing, the appellant ‘must present facts “sufficient to positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to [his] mental competence.” ’ ” Id. at 1431-32 (emphasis added) (quoting United States v. Collins, 949 F.2d 921, 927 (7th Cir.1991)). With all due respect to the court below, we find that the application of this strict standard rather than the reasonable cause standard in § 4241, was a fundamental error of law. Teague is inapposite here because Mason’s trial counsel did raise the issue of competency in the trial court, albeit after the first phase of the trial. The terms of § 4241 indicate that the defendant’s competence may be raised “[a]t any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant....” 18 U.S.C. § 4241(a). Thus, the standard in § 4241 governs whether the competency issue is raised before or after trial. See United States v. Renfroe, 825 F.2d 763, 766-67 (3d Cir.1987) (applying § 4241 “reasonable cause” standard even though facts calling into question the defendant’s competence to stand trial were not discovered until post-trial proceedings). In determining whether there is reasonable cause to order a competency hearing, a trial court must consider all evidence before it, including evidence of irrational behavior, the defendant’s demeanor at trial, and medical opinions concerning the defendant’s competence. See Drope, 420 U.S. at 180, 95 S.Ct. at 908; Fallada v. Dugger, 819 F.2d 1564, 1568 (11th Cir.1987); Thompson v. Blackburn, 776 F.2d 118, 123 (5th Cir.1985). “[E]ven one of these factors standing alone may, in some circumstances, be sufficient.” Drope, 420 U.S. at 180, 95 S.Ct. at 908. Medical opinions are “usually persuasive evidence on the question of whether a sufficient doubt exists” as to the defendant’s competence. Griffin v. Lockhart, 935 F.2d 926, 930 (8th Cir.1991). The trial court must “look at the record as a whole and accept as true all evidence of possible incompetence” in determining whether to order a competency hearing. Smith v. Ylst, 826 F.2d 872, 877 (9th Cir.1987), cert. denied, 488 U.S. 829, 109 S.Ct. 83, 102 L.Ed.2d 59 (1988). In light of this standard, we examine the evidence of incompetence before the trial court. The defendant was convicted on November 5, 1992, after a four-day trial. The suicide attempt occurred on the morning of November 6, 1992. We deem it significant that even the Government filed a motion at that time, under § 4241, seeking a competency hearing to determine whether Mason was insane at the time of the commission of the offenses for which he was charged. Thereafter, pursuant to the court’s order, the medical evaluation at FCI Butner was completed in February 1993, and Mason’s physicians found he was currently suffering from a mental disease or defect. The report issued by FCI Butner, although expressing no opinion on Mason’s competence during the first phase of the trial, indicates that Mason’s psychological problems predated his suicide attempt. The February 1993 letter issued by the warden indicated that Mason suffered from “a mental disease or defect” which required “a lengthy period of psychotherapy, possibly augmented with medication.” In discussing Mason’s affective disorder, the report accompanying the warden’s letter indicated that prior to the suicide attempt Mason “displayed a depressed mood, recurrent thoughts of death, diminished ability to concentrate, and feelings of worthlessness.” Forensic Report from FCI Butner at 7, filed February 16, 1993. The report included family members’ concerns that they were unable “to effectively communicate” with Mason and noted Mason’s “gradual loss of interest in all activities associated with his occupation and family life.” Id. Mason’s “chronic disturbance of mood” had lasted “for an extended period of years possibly up to two years.” Id. (emphasis added). The report detailed Mason’s alcohol abuse which also “has been severe over the last few years.” Id. His alcohol consumption “included at least 3/4 of a fifth of Scotch and a six pack of beer daily.” Id. at 3. Symptoms of this alcohol abuse include “alcoholic blackouts in which he carries on activities which he is unaware of, the inability to concentrate, and persistent memory loss.” Id. at 3-4. In addition, the Government’s motion for a competency hearing to determine Mason’s competence at the time he committed the crimes with which he was charged cites as one of the reasons for the motion that Mason has a history of excessive alcohol consumption. As early as April 1993, the court had before it the affidavits of defense counsel indicating that both of Mason’s treating physicians 'at FCI Butner believed he was incompetent during the first phase of the trial. These affidavits also recounted difficulties defense counsel experienced in obtaining Mason’s cooperation in preparing for trial. Defense counsel noted their lack of expertise in determining whether Mason was incompetent and thus their failure to raise the issue before the first phase of the trial. In addition, defense attorney McNaull’s affidavit noted that the Government’s motion for an examination of the defendant’s pre-trial competency was also pending. Having outlined the evidence indicating Mason’s incompetence during the first phase of the trial, we next consider the court’s response to the motions. At the outset, we note that the defendant’s motions requested a new trial or a competency hearing to determine Mason’s competence during the first phase of the trial. Although each defense motion requested a hearing to determine Mason’s competence during the first phase of the trial, the court treated each motion except the final one exclusively as a motion for a new trial, and examined the motions under the standards applicable to the grant of a new trial only. Moreover, in the court’s final order denying both the motion for a new trial and motion for a retrospective competency hearing, as previously discussed, the court erroneously applied the Teague standard to the motion for a retrospective competency hearing. The court offered the following rationale for denying the defense motions. In the district court’s first order, the court denied the motion on the grounds that the defendant’s demeanor during trial did not exhibit symptoms of mental incompetence and that defense counsel did not raise the mental competence of the defendant as an issue until after his suicide attempt. The court noted that “[t]he fact that he tried to take his life might have been caused by a mental illness but then again it might not have been so caused.” Joint App. at 58. In the court’s second denial of the alternative motions for a retrospective competency hearing or a new trial issued April 20, 1993, the court indicated “the facts contained in this new affidavit permit competing inferences.” Joint App. at 84. The court noted that “it does not appear any more reasonable to the court to infer Defendant was mentally incompetent at the time of trial than it does to conclude his suicide was prompted by the guilty verdict.” Id. The court referred to the affidavits of defense counsel as “riddled .... with hearsay, second guessing, conjecture and self-deprecating regrets.” Id. at 85. In the court’s final order denying the request for a retrospective competency hearing or new trial, the court, erroneously applying the Teague standard, again found defense counsel had given no facts “conclusively” demonstrating incompetence. Moreover, the court found “counsels’ representations, taken in context of the events of this ease, are unbelievable.” Joint App. at 91. We find the court’s orders make clear it misapprehended the statutory language and case law applicable to its determination of whether to grant a hearing on Mason’s competence during the first phase of the trial. First, the court failed to give any credence to the existing evidence of incompetence before it in considering whether to conduct a competency hearing. While it is clear that the affidavits submitted by defense counsel offered only hearsay statements that Mason’s treating physicians at FCI Butner found him incompetent during the first phase of the trial, it is equally clear that defense counsel were unable to get these opinions into the record in any other manner. Under the statutory scheme for psychiatric evaluations of mentally defective defendants, once Mason was admitted to FCI Butner, his attorneys were not able to get independent evaluations of his competency and thus had to rely solely on the government’s physicians at FCI Butner. See 18 U.S.C. § 4247(b). These physicians, however, refused to submit to depositions or sign affidavits concerning their opinions about Mason’s competence during the first phase of the trial in the absence of a request from the court. Thus, defense counsel were faced with a classic catch-22: The court would not grant a competency hearing until they produced sufficient evidence of incompetence, but until the court granted a competency hearing to which defense counsel could subpoena Mason’s treating physicians at FCI Butner, they could not get the evidence of incompetence into the record. Defense counsel informed the court of that situation in affidavits filed with the court. Under these circumstances, the court refused to give any credence to the substance of the affidavits submitted by defense counsel. However, this overlooks that counsel were offering the only evidence available to them: the statements made to counsel by the treating physicians. Outright rejection of these affidavits ignores the fact that counsel for the defense are officers of the court; their statements to the court are subject to disciplinary action if untrue. The district court cited as a partial basis for denying the motion for a retrospective competency hearing that Mason’s suicide attempt was subject to “competing inferences” and did not necessarily indicate Mason was incompetent during the first phase of the trial. In Drope, 420 U.S. at 170, 95 S.Ct. at 903, the lower court had determined that, as a matter of law, a suicide attempt did not create a reasonable doubt as to the defendant’s competence. The Supreme Court found it unnecessary to rule on that particular proposition, but did hold that when the suicide attempt was considered with other evidence of the defendant’s incompetence, it did create a bona fide doubt as to the defendant’s competence to stand trial. Similarly, in this case, Mason’s suicide attempt is accompanied by medical reports submitted to the court that indicate Mason was suffering from an affective disorder and alcohol dependence during the trial, as well as evidence that two physicians are of the opinion that Mason was not competent during the first phase of the trial. The district court also noted defense counsel’s failure to raise the issue of Mason’s incompetence until after the first phase of the trial as a rationale in denying the motion for a competency hearing. In Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 841, 15 L.Ed.2d 815 (1966), the Court found the defendant was entitled to a competency hearing although his defense counsel never demanded a hearing on the matter. Moreover, the Court rejected the notion that the fact that the defendant appeared competent and displayed “mental alertness and understanding” during the trial precluded need for a competency hearing. Id. at 385, 86 S.Ct. at 842. The Court found that “reasoning offers no justification for ignoring” other evidence of the defendant’s incompetence. Id. at 385-86, 86 S.Ct. at 842. As in Pate, the district court in this case found the defendant’s demeanor at the first phase of the trial did not demonstrate any evidence of incompetence. Nevertheless, that fact does not permit the court to ignore medical evidence before it suggesting Mason was not competent during the first phase of the trial. The orders issued by the district court indicate it in essence made a determination of Mason’s competence during the first phase of the trial without the benefit of a competency hearing. This is clearly not permitted under § 4241 which provides for such a hearing upon demonstration of reasonable cause. Under the proper reasonable cause standard, the suicide attempt, the information contained in the initial report from FCI Butner, the affidavits submitted by defense counsel stating that defendant’s treating physicians believed him incompetent during the first phase of the trial, and the district court’s own findings that “the facts ... permit competing inferences,” clearly gave rise to reasonable cause to believe the defendant may have been incompetent during the first phase of the trial. Under these circumstances, the court abused its discretion in denying the defendant’s motions for a retrospective competency hearing. Accordingly, we find the district court abused its discretion in denying the motion for a competency hearing because it erroneously found that the evidence of incompetence must be “conclusive” to justify a hearing, when the court should have evaluated the evidence under the reasonable cause standard. The evidence before the district court unquestionably required a hearing on Mason’s competence during the first phase of the trial under § 4241. Although retrospective competency hearings are generally disfavored, see Drope, 420 U.S. at 183, 95 S.Ct. at 909, such a determination may be possible where, as in this ease, the defendant’s treating physicians have already conducted an inquiry into the defendant’s competence and formed an opinion as to his competence at the time of the first phase of his trial. See Renfroe, 825 F.2d at 767; United States v. Makris, 535 F.2d 899, 904 (5th Cir.1976) (finding mental examinations conducted close to the trial date increase probability of adequate nunc pro tunc competency determination), cert, denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 803 (1977). We thus remand to the district court for a retrospective determination of Mason’s competence during the first phase of his trial. If the district court finds that such a determination is not possible at this stage of the proceedings, it may, as the defendant acknowledges, in the alternative, retry the defendant. For the foregoing reasons, we remand this case to the district court for further proceedings not inconsistent with this opinion. REVERSED. . In an eleven-count superseding bill of indictment, filed August 27, 1992, Mason was charged with sale of drug paraphernalia, use of the mails to transport drug paraphernalia, and importation of drug paraphernalia in violation of 21 U.S.C. § 857 (repealed Nov. 29, 1990), 21 U.S.C. § 863, 18 U.S.C. § 2, and 18 U.S.C. § 545. He was also charged with conspiracy to possess with intent to distribute and distribution of a quantity of cocaine, heroin, and marijuana in violation of 21 U.S.C. § 841(a) and 21 U.S.C. § 846. The Government also included a criminal forfeiture count under 21 U.S.C. § 846 and 21 U.S.C. § 853(p). Mason was convicted of all but two of the counts included in the indictment. . The court sua sponte amended that order on February 23, 1993, indicating Mason should be remanded to the custody of the Attorney General pursuant to 18 U.S.C. § 4241, rather than § 4244. Section 4244 concerns a defendant’s competence to be sentenced, whereas § 4241 relates to competence to stand trial. The court deemed § 4241 applicable because Mason had yet to be tried on the forfeiture counts. . Mason was represented by two attorneys, William McNaull and Robert Vaughn. McNaull filed ari affidavit with the district court claiming that on January 14, 1993, Dr. Kevin McBride, one of Mason’s examining physicians at FCI But-ner, telephoned McNaull and during the course of the conversation told McNaull that in his professional opinion, Mason had not been competent during the first phase of the trial. McNaull also alleged that McBride told him that this opinion was shared by Dr. Cathy Williams, the other evaluating physician at FCI Butner. According to the affidavit, McBride told McNaull that he could not include that information in the report because administrative procedures at FCI Butner dictated that he could only submit information on the specific issue presented by the court. Defense counsel Vaughn also submitted to the court on April 20, 1993, an affidavit stating that on March 1, 1993, an attorney representing FCI Butner informed Vaughn by telephone that neither Dr. McBride nor Dr. Williams would be permitted to give an opinion about Mason's competence during the first phase of the trial absent a court order requesting or permitting the testimony. .Mason urges the indictment against him should have been quashed because it did not contain any scienter element for the sale of drug paraphernalia in violation of 21 U.S.C. § 857 (repealed Nov. 29, 1990), and 21 U.S.C. § 863. At the time Mason was indicted, the circuits were split as to whether the scienter requirement in the drug paraphernalia statutes was an objective standard, subjective standard, or some mix of the two. The Supreme Court recently determined that an objective standard applies in Posters 'N' Things, Ltd. v. United States, - U.S. -, -, 114 S.Ct. 1747, 1752, 128 L.Ed.2d 539 (1994). The issue had not been resolved in this Circuit when Mason was indicted. Mason claims that because the Government did not specify in the indictment which standard applied, he was forced to trial without knowing the nature of the charges against him. This argument is without merit. The language in the indictment tracked the statutory language. In Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974), the Supreme Court stated “that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Id. In the context of a continuing criminal enterprise conviction under 21 U.S.C. § 848, we have held that an indictment that tracks the language of the statute is sufficient. United States v. Amend, 791 F.2d 1120, 1125 (4th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 399, 93 L.Ed.2d 353 (1986). We find the indictment was sufficient to fairly apprise Mason of the charges against him and to enable him to defend against them.
6045874-8871	DENNIS JACOBS, Chief Judge. An Immigration Judge (“IJ”) held that Nabih Yacoub Tablie was ineligible for suspension of deportation because he failed to establish continuous physical residence in the United States for the requisite number of years. The Board of Immigration Appeals (“BIA”) dismissed Tablie’s appeal, concluding that Tablie’s commission of a crime in 1984 ended his period of continuous residence in the sixth year. Under the law as it stood when the deportation proceedings began in 1989, Tablie’s offense would not have affected the period of residence. 8 U.S.C. § 1254 (repealed 1996). However, in 1996 the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1229b(d)(l), was amended such that an alien’s period of continuous residence ended upon the commission of certain offenses. Because we conclude that the relevant provisions of the INA apply retrospectively to Ta-blie’s 1984 criminal offense, we deny his petition for review. BACKGROUND Tablie, a native and citizen of Lebanon, legally entered the United States in 1979 on a student visa to attend college in Buffalo. In 1984, near the completion of his studies, Tablie lied on an application for permanent residence; in 1986, he was convicted of making false material statements to the Immigration and Naturalization Service. In October 1989, deportation proceedings were commenced by order to show cause. Those proceedings were delayed for various reasons not relevant to the current appeal. In July 2000, the IJ determined that Tablie was ineligible for suspension of deportation. The BIA dismissed Tablie’s appeal in May 2005. Ta-blie filed a timely petition for review in June 2005. DISCUSSION Prior to 1996, an alien subject to removal could apply to the Attorney General for suspension of deportation, a form of discretionary relief. To qualify for suspension of deportation, an alien had to prove (1) that he was “physically present in the United States for a continuous period of not less than seven [or ten ] years immediately preceding the date of such application,” (2) “that during all of such period he was and is a person of good moral character,” and (3) that he was “a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1254(a) (repealed 1996). In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009, altered the suspension of deportation procedure in several ways that bear upon this appeal. First, removal procedures that were commenced by order to show cause are now commenced by the filing of a notice to appear. Second, the relief that was called suspension of deportation is now called “cancellation of removal.” INA § 240A(a), 8 U.S.C. § 1229b(a). Third— and most important for purposes — the accrual of continuous residence now ends when deportation proceedings commence, or when the alien commits certain offenses, or if the alien is absent for a long time: (1) Termination of continuous period ... [A] ny period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) ... when the alien is served a notice to appear ..., or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible ... or removable ..., whichever is earliest. (2) Treatment of certain breaks in presence An alien shall be considered to have failed to maintain continuous physical presence in the United States ... if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. 8 U.S.C. § 1229b(d) (bolded and re-formatted). Under subsection 240A(d)(l), called the “stop-time rule,” the alien’s continuous residency or physical presence ends, for purposes of cancellation of removal, on the date he commits a qualifying offense or on the date a notice to appear is filed. 8 U.S.C. § 1229b(d)(l). Under subsection 240A(d)(2) an alien’s presence is insufficiently “continuous” if he leaves the country for a period of ninety days or for 180 days in the aggregate. 8 U.S.C. § 1229b(d)(2). Accordingly, under § 240A(d)(l) Tablie’s period of continuous residence ended in 1984 when he lied on his application for permanent residence, after only five years in the country. Tablie would therefore be ineligible for cancellation of removal under the new stop-time rule. The question raised by Tablie’s petition is whether the stop-time rule applies to his eligibility for cancellation of removal. We conclude that it does. Tablie’s removal proceedings began in 1989, seven years before the enactment of IIRIRA. Generally, IIRIRA provisions do not apply “in the case of an alien who is in exclusion or deportation proceedings as of the [statute’s] effective date.” IIRIRA § 309(c)(1). In such a case, “the proceedings (including judicial review thereof) shall continue to be conducted without regard to” IIRIRA’s amendments to the INA. Id. § 309(c)(1)(B). However, IIRIRA contains a special “transitional rule with regard to suspen sion of deportation,” which states that “[p]aragraphs (1) and (2) of section 240A(d) of the [INA] (relating to continuous residence or physical presence) shall apply to notices to appear issued before, on, or after the date of the enactment of this Act.” Id. § 309(c)(5). This wording is defective (and was later amended) because, as mentioned above, “notices to appear” did not exist before the enactment of IIRI-RA; so the transitional rule is meaningless insofar as it provides for the application of § 240A(d) to “notices to appear” that were “issued before ... the date of the enactment of this Act.” IIRIRA’s transitional rule was revised in the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub.L. No. 105-100, 111 Stat. 2160, which replaced the phrase “notices to appear” with the phrase “orders to show cause” (the initiating instruments for removal proceedings before the enactment of IIRIRA). NACARA § 203(1). So amended, the transitional rule states that INA § 240A(d) shall apply to orders to show cause issued before the enactment of IIRIRA. However, Tablie argues that the text of the transitional rule remains ambiguous. As Tablie reads the transitional rule, “orders to show cause” (in the phrase “shall apply to orders to show cause”) refers solely to subsection 240A(d)(l)(A), which ends an alien’s period of continuous residence when he is served with a notice to appear. As the BIA reads the transitional rule, the phrase “shall apply to orders to show cause” means that in proceedings commenced by an order to show cause served before the enactment of IIRIRA, the stop-time rule of INA § 240A(d)(l) operates to stop time under both subsections — both upon service of the document initiating deportation proceedings (§ 240A(d)(l)(A)) and upon commission of a criminal offense (§ 240A(d)(l)(B)). Under this reading of the transitional rule, the happening of either event (the initiation of proceedings or the commission of an offense) before the enactment of IIRIRA ends the period of continuous residence relevant to eligibility for cancellation of removal. If Tablie is correct, the application of § 240A(d)(l)(A)’ s stop-time rule to Tablie’ s 1989 order to show cause would not affect his eligibility for cancellation of removal because by 1989, when he was served with an order to show cause, Tablie had been present in the country for over ten years and would therefore nevertheless qualify for cancellation of removal. If the BIA is correct, and § 240A(d)(l)(B)’ s stop-time rule for criminal offenses applies, then Tablie’s 1984 crime ended his continuous residence after only five years, and he does not qualify for cancellation of removal. Tablie advances the following two arguments in favor of his reading of the statute: First, the phrase “shall apply to orders to show cause” cannot apply to all proceedings in which an order to show cause has been issued, because other provisions of IIRIRA use the term “proceedings” when referring to proceedings initiated before enactment. See, e.g., IIRIRA § 309(c)(1)(B). Generally, where Congress employs a specific term in one provision of a statute and a different term in another provision, it is assumed that Congress’s use of different terms is intentional and purposeful. See Duncan v. Walker, 533 U.S. 167, 173, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Second, to the extent there is any ambiguity regarding the transitional rule’s application, we generally “con-stru[e] any lingering ambiguities in deportation statutes in favor of the alien.” See Ki Se Lee v. Ashcroft, 368 F.3d 218, 225 (3d Cir.2004).
1669606-10799	BEATTIE, District Judge. Reasons for overruling motions to quash, for new trial, and in arrest of judgment. The motions were based principally upon an alleged misjoinder of offenses, misjoinder of defendants, and duplicity. The other grounds of the motions are dependent upon or connected with those above mentioned. The general rule of law, as laid down by section 1024 of the Revised Statutes (Comp. St. §.1690), is: “When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such eases, the court may order them to be consolidated.” La Hartman v. U. S., 168 F. 30, 94 C. C. A. 124, it was held substantially that the government cannot he required to elect between counts of an indictment which charge misdemeanors of the same class, although under some of the counts the punishment may be imprisonment in the penitentiary; that under this section such counts may be joined and tried together. There is a special provision in the National Prohibition Aet on this subject. It is title 2, § 32 (Comp. St. Ann. Supp. 1923, § 10138%s) and reads as follows: “In any affidavit, information, or indictment for the violation of this Act, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed.” Clearly, I think, under the law, and especially under the National Prohibition Act, there can be no objection to the joinder, as in this case, of separate offenses in the same indictment in separate counts. But objection is urged on this ground, particularly for the reason that, as against one of the original defendants in that ease- (who is now no longer in the ease because, by a directed verdict, he was acquitted and his, case was never submitted to the jury for a decision), it was alleged that the offense charged in this indictment constituted a second offense against the National Prohibition Act by that defendant. Section 29 of title 2 of the act (section 10138%p) requires the prosecuting officer to ascertain whether the defendant has been previously convicted, and to plead the pri- or conviction in the indictment. Notwithstanding this requirement of section 29, there appears the subsequent authority, under section 32, just quoted, to join separate offenses in separate counts of the same indictment. Congress evidently intended that this should be done, even though as to one of the counts and as to one of the defendants the offense was a second offense. While under the technical definitions of misdemeanors and felonies under the Criminal Code (35 Stat. 1088) the first offense is a misdemeanor and the second offense is a felony, yet, even if there were no special authority for joining different offenses in separate counts under section 32, I do not think that this distinction between misdemeanors and felonies, based entirely upon the amount of punishment, makes the offenses or acts different classes of crimes or offenses, as referred to in R. S. § 1024, where it is provided that several charges for two or more acts or transactions of the same class of crimes or offenses may be properly joined in separate counts. The distinction between misdemeanors and felonies at common law and, in the United States at the time of the adoption of section 1024 was entirely different from that distinction as it exists under the Code, which makes the amount of punishment alone the distinguishing line of demarcation between misdemeanors and felonies. One sale of intoxicating liquor contrary to law is certainly the same class of crime as another sale of intoxicating liquor, though for the first offense the punishment may be such as to make the crime a misdemeanor, and for the second offense a felony. One offense of possessing liquor contrary to law is, I think, the same class of offense as a sale of liquor contrary to law, and they may be charged, in separate counts of the same indictment, though in the case of the one offense it may be a first offense and a misdemeanor, and in the ease of the other offense it may be a second offense and a felony — -the distinguishing line of demarcartdon being only the amount of punishment. For these reasons, and, oven if we are controlled by R. S. § 1024, instead of section 32 of the aet, first and second offenses against' the same aet, though one may be a misdemeanor and the other a felony, can be charged in separate counts of the same indictment. As to the misjoinder of defendants, there is no merit, unless it bo, as contended, because against one, the charge is of a second offense, and against the other, of a first offense, though against the samej aet. If such defendants, guilty of a joint commission of a crime — the one as a first offender, and the other as a. second offender— cannot he joined in the same indictment, it means a large increase in the number of indictments, and of trials necessary to enforce the law. The policy of the law is certainly to join all parties, who jointly commit an offense, ■in the same indictment as joint offenders. Recently the Judicial Conference, held by virtue of a statute of the United States, commented upon the practice of charging against two offenders conspiracy to violate a law, instead of charging the same offenders jointly in the same count with a joint commission of the same act, and the Judicial Conference advised in favor of the latter course instead of the former course. What possible harm and prejudice can result to either of the accused, and especially to the one accused of the first offense, because the other is charged as a second offender? What possible prejudicial effect can the introduction' of evidence to show, against one defendant, that he hás previously violated the same law, have against the other defendant, under any circumstances, and particularly if the jury be cautioned, as they were in this ease, that the evidence introduced as to the prior offense was only to be considered as against the party charged with the second offense, and was to be disregarded, so far as the other party was' concerned? What possible effect could such evidence of a prior offense have in tending to induce the jury to convict the other defendant of a first offense, simply because evidence is admitted as against the other defendant of a prior offense, particularly, I say, if the jury be cautioned at the time? What possible prejudice can result to the defendant charged with the first offense because, if they convict the other defendant of a seeond offense, the latter’s punishment, under the law, may be greater and be sufficient to make it a felony? The faet that the punishment to be imposed by the court, and with which the jury has nothing to do, may be different as to the two defendants, makes no difference. In many crimes, where a wide discretion is given to the judge in fixing the penalty, and where there are two defendants charged with the identical offense, both as a first offense, the punishment imposed by the judge as to the two defendants may be entirely different. One may receive the imposition of a simple fine or jail sentence, and the other may be ordered confined in the penitentiary for a number of years. In this ease there could be no objection to the joinder of offenses, or of defendants, and why should there be any difference in the case at bar, simply because, as a result of one of the defendants being charged as a seeond offender, he might have received more severe punishment than the other? For these reasons, I concluded that, even if the cases of both defendants had been submitted ti> the jury for a verdiet, neither would have had any cause to complain of any prejudicial error. But in the ease at bar, there is even less reason for the convicted defendant to complain, because, prior to the submission of the case to the jury, a verdiet was' ’directed as to the other defendant, and the jury had before them only the decision of the case as to the one defendant that was convicted, and could not possibly have been confused as to the issue against this one in their deliberation. The jury, having nothing whatever to do with the amount of the punishment, had the single question to determine whether the defendant was guilty or not guilty, and could not have been prejudiced by any of the matters complained of. If there be error at all, and I do not think there is, it was not prejudicial, and it is only prejudicial error that can avail the defendant. There was a suggestion of duplicity in the indictment, for the same reason that it was considered illegal to join two offenders, the one charged with a first offense, and the other charged with a second offense, against the same law in the same count of the same indictment. Joint offenders committing the same act must be charged in the same count of the same indictment. Duplicity consists in charging the same defendant in the same count with more than one crime, and there is no contention of anything of this sort. The complaint is simply that the two offenders were charged in the same count — one with a first offense, and the other with a seeond offense. After the close of the government’s evidence, a motion was made by the attorney of the two defendants on behalf of both defendants to direct a verdiet, and, in support of this motion, Coco v. U. S. (C. C. A.) 289 F. 33, was cited. By reason of the authorities cited in that case, rather than the opinion in that case, itself, the court was of the opinion that both defendants should not be further prosecuted under that indictment, and then and there directed the government to elect which of the two defendants it wished to prosecute, and, the government having elected to continue the prosecution against Harvey Mullen, the court then and there stated to the jury that a verdiet would be directed in favor of the other defendant, Dominick, and Dominick was thereafter out of the case, and was called as a witness by his original eodefendant, Mullen. In view of the decisions authorizing the court to direct the government to elect which of the several counts of an indictment against the same defendant it wishes to continue to prosecute in eases where the court holds that there is a misjoinder of counts, the court in this ease considered that it had the same right to direct the government to elect which of the two defendants it wished to continue to prosecute. The court could see no possible harm or prejudice that might result to defendants by such election.
1698344-8363	SYMES, District Judge. This is an appeal in bankruptcy from the District Court of the United States for the Southern District of Iowa. It appears that on or about July 1, 1920, Albert Pick & Co. sold to one Dean certain restaurant fixtures and equipment, and took in part payment thereof several notes, due serially, secured by a chattel mortgage bn the fixtures, which was filed for record with the recorder of Washington county, Iowa. Three years thereafter Dean filed his voluntary petition in bankruptcy, and in his schedules listed this debt. He was adjudicated a bankrupt on April 28, 1923, and Pick & Go. filed their claim as a secured debt for $1,-145.68 as the balance due. The amount is not disputed. The trustee, however, objected to the claim as a preferred claim on two grounds: First, that the chattel mortgage upon which the claim for priority was based showed on its face, and in fact was never properly acknowledged, proved, or recorded as required by the lex loci; and, secondly, that, for the reasons already, stated, the instrument was not eligible to be filed for record, and could not be legally filed, and therefore as to the trustee was invalid and of no force or effect. The referee sustained the objections and allowed the claim as that of a general claim only. A petition for review having been filed, the matter was referred by the District Court to a special master to determine and report the facts and his conclusions. It is doneeded that the chattel mortgage was never acknowledged, and under the state statute was not entitled to be recorded. The master was of the opinion that the 1910 amendment to section 47a of the Bankruptcy Act (Comp. St. § 9631) gave the trustee no additional rights whatever than he had under the prior law, unless some creditor had actually obtained a lien by levy thereon, and that in ease such a lien had been so obtained its validity in Iowa would depend upon whether the creditor obtaining it had actual notice, prior to the levy, .of the existence of such a mortgage. He accordingly recommended that the finding of the referee be reversed and the claim for priority be allowed. On exceptions to the master’s report, the lower court held that section 47a, as it now stands, did not require that a lien should actually have been established; that it gives the trustee the status of that of a lien creditor at the mejnent the bankruptcy petition was filed, with the right to procure a lien by execution or attachment if the property was still in the hands of the bankrupt, and accordingly affirmed the finding of. the referee. Pick & Co. bring the ease here on appeal. The Iowa statute (Code 1924, § 10015) declares that no mortgage of personal property shall be valid against existing creditors or subsequent purchasers without notice, unless executed and acknowledged like a conveyance of real estate, and duly recorded, etc. As to what constitutes legal acknowledgment and recording in Iowa, see sections 2925, 2926, 2942, 2948, 2959, Code of 1897. These sections are construed in Reynolds v. Kingsbury, 15 Iowa, 238; Brinton v. Seevers, 12 Iowa, 389. In Bank v. Snodgrass, 182 Iowa, 1387, 166 N. W. 681, the Supreme Court of Iowa held the statutory requirements were mandatory, and that, before a chattel mortgage could be held to have given constructive notice, the recording acts must have been strictly complied with; that the burden of proving actual notice of an instrument not legally recorded is upon the holder. Martin v. Lesan, 129 Iowa, 573, 105 N. W. 996. The transfer of the property in question sought to be made by the chattel mortgage was incomplete until perfected b'y a proper acknowledgment and recordation of the instrument. In Re Caslon Press (C. C. A.) 229 F. 133, it is said: "Recording an unacknowledged or an improperly acknowledged chattel mortgage eoneededly gives no constructive notice, and therefore does not better the position of the mortgagee as against the subsequent lienor in Illinois. A further act by the grantor itself, the acknowledgment, is a prerequisite to the grantee’s power to secure an effectual recording of the conveyance, such as will protect it under some circumstances against subsequent lienors, including, since the 1910 amendment of section 47a (2), the trustee in bankruptcy.” And Groner v. Babcock Printing Press Co. (C. C. A.) 267 F. 822, holds that the trustee in bankruptcy is entitled., to rights of a subsequent lien holder, as against an improperly recorded obligation. The specific question before us is whether, under section 47a of the Bankruptcy Act, as amended in 1910, the trustee acquired, as to the property in question, the rights of a creditor levying upon property coming into the control of the bankruptcy court at the time the peition was filed, and, generally, just what additional rights this amendment gives the trustee. This estate was in custodia legis from the date the petition was filed, and the title of the trustee, and his rights and remedies, related back to, and are determined as of, that date. Fairbanks Steam Shovel Co. v. Wills, 240 U. S. 642, 36 S. Ct. 466, 60 L. Ed. 841; Bailey, Trustee, v. Baker Ice Mach. Co., 239 U. S. 268, at 276, 36 S. Ct. 50, 60 L. Ed. 275. The amendment provides, in effect, that the trustee shall have the same title to the property of the bankrupt in the custody of the court that a creditor holding a lien by legal or equitable proceedings levied against the property would have under a state law, and, as to property not in the custody of the court, the trustee should stand in the position of a judgment creditor holding an execution duly returned unsatisfied. It must be conceded that there is a respectable amount of authority holding that the trustee under the amendment of 1910 cannot attack or defend against a voidable chattel mortgage, unless there be in fact a creditor holding a fixed lien on the chattels at the' time of filing the petition. In re Lausman (D. C.) 183 F. 647; In re Flatland (C. C. A.) 196 F. 310; Collier on Bankruptcy (12th Ed.) 728. Otherwise, that the amendment does not increase the trustee’s rights beyond the point of standing in the shoes of the bankrupt. Appellant places great reliance upon Smith-Flynn Commission Co., 292 F. 465 (this circuit), which, as stated, gives the amendment a somewhat limited effect. That case, however, arose in another state, involved a question of a pledge, not a chattel mortgage, and specifically held that under the state law recording was not essential to its validity. Judge Kenyon in his discussion states that a trustee may now question any lien or pledge that any lien creditor might challenge had there been no bankruptcy. Nor does Carey v. Donohue, Trustee, 240 U. S. 430, 36 S. Ct. 386, 60 L. Ed. 726, L. R. A. 1917A, 295, purport to pass upon the question at bar; it likewise holding that the conveyance in question did not require recording in order to give it validity. American Laundry Mach. Co. v. Everybody’s Laundry, 185 Iowa, 760, 171 N. W. 161, relied upon by the appellant, dealt with a conditional sales contract, which was properly acknowledged and recorded. There is some language in the opinion that might give comfort to appellant, but it was not necessary to a decision of the ease. The provisions of the. federal Bankruptcy Act are paramount to any state statute, and state courts follow the decisions of the federal courts dealing with questions arising under that law. Brenan v. Dahlstrom Metallic Door Co., 189 App. Div. 685, 178 N. Y. S. 846. Likewise in Martin, Trustee, v. Commercial Nat. Bank of Macon, Ga., 245 U. S. 513, 38 S. Ct. 176, 62 L. Ed. 441, we find that the state law and decisions i eeog- nized unrecorded chattel mortgages as valid between the parties, and merely postponed them to liens created while they remain unrecorded. The intention of the Bankruptcy Act prior to 1910 was that the trustee should take the estate precisely where he found it, with no additional rights, excepting, of course, the specific right to set aside preferences and liens acquired within the four-month period. York Mfg. Co. v. Cassell, 201 U. S. 344, 26 S. Ct. 481, 50 L. Ed. 782. But, as pointed out in Smith-Elynn Commission Co, supra, and the Congressional Record, 61st Congress, 2d Session, 2275-2277, the amendment under discussion was designed to supersede that decision.
586288-10535	MEMORANDUM HAROLD H. GREENE, District Judge. Plaintiffs bring this action to gain access to various law enforcement records under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1986). These records deal with an investigation that followed the discovery of a small amount of cocaine in or near the jury room during trial in United States v. Meinster, No. 79-165-CR-JLK (S.D.Fla.1979). Plaintiffs are friends of one of the defendants in Meinster, a Robert Platshorn, who was found guilty and is now incarcerated. Pending before the Court are cross-motions for summary judgment. For the reasons stated below, the Court concludes that the records sought by plaintiffs fall within various exceptions to FOIA. Accordingly, access to these records will be denied, and this case will be dismissed. I Plaintiffs’ requests for documents arise out of a widely publicized trial in Florida in 1980. The jury had been sequestered in a local hotel, and U.S. Marshals found a vial of cocaine in one of the rooms. Apparently, the cocaine was found in the Marshals’ “command post,” to which jurors had no access. Although the facts are far from clear, it does appear that the Marshals tested the cocaine and destroyed it. However, the Marshals did not bring the matter to the attention of the presiding judge because he had apparently cautioned them not to trouble him with irrelevancies. Instead, one of the Marshals told defense counsel about the discovery, and defense counsel moved for a mistrial. The judge denied this motion and declined to appoint a special prosecutor, saying that the affidavits submitted “at best fall far short of the necessary showing that something occurred which affected the fair deliberation of the jury.” United States v. Meinster, slip op. at 2 (Order of September 12, 1980). The Department of Justice’s Office of Professional Responsibility then investigat ed the incident and issued a report (which was partially withheld from plaintiffs and is one of the documents at issue here). The report found little or no wrongdoing on the part of the Marshals. A Bivens action was filed against the Marshals, and summary judgment was entered in their favor. Myers v. Forscht, No. 84-1391 (S.D.Fla. May 23, 1985). Plaintiffs requested the documents in question from the Marshals Service on September 2, 1983, and from the Office of Professional Responsibility (OPR) on that date and also on August 14, 1984. These requests were for “a copy of all records, reports, affidavits, and memoranda produced or prepared for or as a result” of the OPR investigation of the cocaine discovery. The Marshals Service released ten documents and withheld others, pursuant to FOIA exemptions 5, 6, and 7(C). OPR released a redacted copy of its final report and withheld other documents, pursuant to FOIA exemptions 2, 5, 6, and 7. Plaintiffs now dispute the withholding of the redacted portions of the OPR report, as well as twenty-three other documents. The parties have identified these documents as “Bobzien affidavit” documents number 1 and 3-15, and “Graham affidavit” documents number B5-9 and CIO-14. All of these documents have been reviewed by the Court in camera, pursuant to the Court’s Order of October 3, 1986. For the sake of simplicity, the Court will use these same labels. II Exemption 7 is perhaps the most frequently litigated of the FOIA exemptions. This exemption in part allows an agency to withhold “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy____” 5 U.S.C. § 552(b)(7). A leading case on this exemption is Stern v. FBI, 737 F.2d 84 (D.C.Cir.1984). Under Stern, a court in applying exemption 7(C) must first determine whether the documents in question are “investigatory records compiled for law enforcement purposes,” and if they are, the withholding agency bears the burden of showing why disclosure would cause an unwarranted invasion of privacy. 737 F.2d at 88. This analysis calls for nondisclosure of many of the documents sought in the instant case. These are, conservatively, documents 1, 3, 8, 9, and 10 from the Bobzien affidavit and all of the documents from the Graham affidavit. As a threshold matter, all of these documents clearly are “investigatory records compiled for law enforcement purposes,” since they represent part of an inquiry into specific wrongdoing by specific Marshals and jurors. The only question is whether the privacy interests at stake outweigh the public interest in disclosure. The Stem court considered this balance in regard to employee records. According to Stern, not only do employees have a privacy interest in their employment histories, but they have a strong interest in not being associated unwarrantedly with alleged criminal activity. The court further stated that the exemption “affords broad privacy rights to suspects, witnesses, and investigators,” and that when individuals are investigated but not prosecuted, disclosure should be allowed only if the public interest in the information outweighs “the significant privacy interests implicated.” 737 F.2d at 92. In this case, document 3 from the Bobzien affidavit affords a good example of why the Stern balance mandates nondisclosure. This document is the report of a polygraph examination of one of the Marshals who cooperated in the OPR investigation. Two major public interests might justify disclosing such a document. The first, not relied upon by plaintiffs, is to root out wrongdoing by federal employees; “[tjhere is a public interest in how well public officials are performing their official duties.” J. O’Reilly, Federal Information Disclosure 17-41 (1986). The second public interest, urged by plaintiffs, to to ensure that the Meinster trial was fair. Neither of these interests is strong in this case. First, a federal judge has al ready decided that there were not sufficient grounds for inferring juror misconduct or appointing a special prosecutor. Second, a different judge granted summary judgment for the Marshals in a Bivens action against them. Third, the Department of Justice conducted what seems to have been a thorough investigation and found virtually no wrongdoing. On the other hand, the privacy interests in withholding, for example, document 3 in the Bobzien affidavit, are extremely strong. The official whose polygraph examination was taken had cooperated in the investigation and was cleared of any significant wrongdoing. If such a document is disclosed, this official, in return for his cooperation, may undergo considerable embarrassment and perhaps damage to his career. Courts have long recognized that simply mentioning a person’s name in a law enforcement file can stigmatize that person, even if he is not the subject of the investigation. See Miller v. Bell, 661 F.2d 623, 631-32 (7th Cir.1981). The Court of Appeals for this Circuit has also noted that documents which carry “the imprimatur of an official investigation ... threatenf ] much greater damage to an individual’s reputation than newspaper articles or editorial columns.” Bast v. Department of Justice, 665 F.2d 1251 (D.C.Cir.1981). Moreover, the identities of law enforcement personnel whose names are mentioned in investigatory files are routinely withheld in order not to harass or annoy them, or interfere in their ability to perform their duty. See Nix v. United States, 572 F.2d 998, 1006 (4th Cir.1978). All other documents that will be withheld under exemption 7(C) embody the same balance in favor of personal privacy. For example, document B-5 from the Graham affidavit is an internal memorandum that discusses entirely unsubstantiated allegations about the cocaine discovery and purportedly related “payoffs” to Marshals. Document 8 from the Bobzien affidavit is a very detailed report on this incident from OPR — a report that, again, found only minor, if any, wrongdoing. The release of such documents would exact a heavy price from innocent officials, without advancing a perceptible public interest. Consequently, the documents mentioned will be withheld under exemption 7(C). Ill FOIA exemption 6 allows nondisclosure of “personnel and medical files and similar files which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The same balance between public interest and privacy applies to this exemption, except that a stronger showing of privacy invasion is neded before the documents can be withheld. 737 F.2d at 91. At least five documents may be withheld under this exemption. Documents 5, 6, and 7 from the Bobzien affidavit are a series of letters to or from the attorney for one Marshal, OPR, and the Marshals Service. The letters discuss whether or not the Marshals Service had retaliated against a marshal who cooperated in the OPR investigation. Obviously, this Marshal has an extremely strong interest in protecting the privacy of such personnel files. And since the events discussed in this correspondence had only the most tangential relationship to the cocaine discovery, the public interest in their disclosure is weak at best. Documents 12 and 13 are an exchange of correspondence between a Marshal’s attorney and OPR. These letters express personal viewpoints on the OPR investigation, and personal viewpoints on the polygraph exam mentioned earlier. Again, disclosing such personal correspondence would cause serious privacy invasions without advancing a measurable public interest. Consequently, these documents may be withheld under exemption 6. IV FOIA exemption 5 allows nondisclosure of “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The exemption covers materials that encompass the “deliberative process” or “predecisional memoranda” of agency officials, and also covers attorney work product. See generally J. O’Reilly, supra, chapter 15. Document 11 from the Bobzien affidvit is the quintessential “predecisional memorandum,” and may be withheld. The document is a memo scrawled on a notepad by an OPR attorney. The memo tosses off a few tentative ideas about what the OPR report on the Meinster investigation should say. The disclosure of such a memo would seriously harm an agency’s decisionmaking process without conceivable benefit to the public. See NLRB v. Sears & Roebuck Co., 421 U.S. 132, 151, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975).
10528711-23766	KRUPANSKY, Circuit Judge. This case represents a consolidated appeal by three defendants (referred to collectively as defendants), each of whom was convicted of criminal charges relating to the possession of cocaine. Defendant-appellant, Roberto Ramos (Ramos), was indicted and convicted of one count of possession with intent to distribute cocaine in violation of 21 U.S.C.A. §§ 841(a)(1) (West 1981) and (b)(l)(B)(ii)(II) (West Supp.1988), and one count of conspiracy to distribute cocaine in violation of 21 U.S.C.A. § 846 (West Supp.1988). Defendant-appellant, Carl Sutton, Jr. (Sutton), was indicted and convicted of one count of attempting to possess with intent to distribute cocaine in violation of 21 U.S.C.A. §§ 841(a)(1) and (b)(1)(B)(ii)(II) and 21 U.S.C.A. § 846, and one count of conspiracy to distribute cocaine in violation of 21 U.S.C.A. § 846. Defendant-appellant, Ralph Longmire (Long-mire), was indicted and convicted on one count of using a telephone to facilitate the commission of a felony, namely the attempted distribution of cocaine, one count of attempting to possess with intent to distribute cocaine in violation of 21 U.S. C.A. § 841(a)(1) and (b)(l)(B)(ii)(II) and 21 U.S.C.A. § 846, and one count of conspiracy to distribute cocaine in violation of 21 U.S.C.A. § 846. The errors charged on appeal by all three defendants stem from the same underlying core of facts as developed during the trial. Agents employed by the federal Drug Enforcement Administration and the Regional Enforcement Narcotics Unit initiated the surveillance of an apartment belonging to Ramos located at 8105 Constitution Drive in Cincinnati, Ohio on April 13, 1987. On that same afternoon, the officers observed a vehicle bearing New York state license plates park in front of the apartment. There were two individuals inside the vehicle, later identified as Felix Rodriguez (Rodriguez) and Guillermo Agramonte (Agramonte). Rodriguez and Agramonte entered the Ramos apartment, carrying a plastic shopping bag which, it was later determined, contained several packages of cocaine. Contemporaneously, at about 3:00 p.m., law enforcement officers who had previously obtained a search warrant entered the apartment. Upon entering, the officers placed Ramos, Rodriguez and Agramonte under arrest. The officers proceeded to search the apartment and located a kilogram of 90% pure cocaine, as well as two smaller one ounce packages of cocaine, in one of the bedroom closets. The search also produced a briefcase owned by Ramos containing $4,970.00 in United States currency, a triple beam scale of the type used for weighing drugs, and the plastic shopping bag which Rodriguez and Agramonte brought from their vehicle. In addition, the officers found several notebooks and writing pads belonging to Ramos, with various mathematical calculations and telephone numbers. After being placed under arrest, Ramos decided to cooperate with the enforcement agents, and agreed to distribute the cocaine in accordance with his usual modus operands Ramos accordingly telephoned Longmire and advised him that a shipment of cocaine had arrived. Longmire told Ramos that he would rendezvous with Sutton and that the two would then accept delivery of the shipment from Ramos at his apartment. Subsequent to this telephone conversation, but before Longmire and Sutton had arrived at his apartment, Ramos received a telephone call from a person whom he identified as Simone Iglesias (Iglesias), and for whom he had collected money on April 10, 1987 for cocaine sales. Iglesias inquired as to whether Rodriguez and Agramonte had arrived safely with the shipment of cocaine. After being assured of the safe receipt of the cocaine, Iglesias instructed Ramos to collect money from Longmire and Sutton, which the two owed him for previous cocaine transactions, before delivering the latest shipment to them. Sometime after receiving this call from Iglesias, Longmire and Sutton arrived at the Ramos apartment. Law enforcement officers monitored the ensuing conversation between Ramos, Longmire and Sutton from adjacent apartments and a hallway closet. Shortly after entering the apartment, Longmire asked Ramos if he had received the cocaine from Rodriguez and Agramonte. Ramos responded, in accordance with the instructions given to him by Iglesias, by pressing Longmire for the money due from the previous cocaine deliveries. Sutton offered ten thousand dollars which he had immediately available in a brief case in the trunk of his vehicle. Sutton instructed Longmire to get the money. Longmire told Sutton to calm down, observing that he had been out “all night collecting ... money,” pursuant to Sutton’s instructions. At this time, Ramos left the room, obtained the cocaine and returned to the living room so that Longmire and Sutton could inspect it. Longmire commented that “[t]his sure is packed. It’s packed real tight.” At that point, the enforcement officers appeared, identified themselves, and arrested Sutton and Longmire. After placing Longmire and Sutton under arrest, the officers obtained a search warrant for Longmire’s vehicle. Upon searching the trunk of the automobile, they discovered a briefcase belonging to Sutton, which contained $12,000 in cash and various papers. Subsequent laboratory analysis indicated that the bills, which were banded together, contained traces of cocaine. Additionally, the briefcase disclosed a personalized telephone directory and a scrap of paper upon which appeared the name and telephone number of Escubio Martinez (Martinez), an unindicted co-conspirator who had been supplying Ramos with cocaine from a base of operation in New York. A search of the front passenger area of the vehicle yielded papers with mathematical calculations and various telephone numbers. The information provided by the various papers collected from Ramos, Longmire, and Sutton disclosed an ongoing arrangement to distribute cocaine. The notebook belonging to Longmire, which had been recovered during the search of his vehicle, provided figures which detailed cocaine sales and payments made for some seven or eight months, including an outstanding debt of $52,900.00. The Martinez telephone number was also found in papers belonging to both Longmire and Sutton. The papers located in Ramos’s apartment included a notation of a debt in the amount of $52,900.00 to Martinez from Longmire and Sutton for previous cocaine sales. Notations were located in a notebook taken from Ramos indicating indebtedness for earlier cocaine sales. Additional entries reflected payments made for two kilograms of cocaine, shipped by Martinez to Ramos in Cincinnati and sold by Ramos to Long-mire and Sutton. Residential and employment telephone listings for Longmire, Sutton, Martinez and Iglesias were located in the apartment. Later investigations disclosed payments which Ramos had made to Martinez and Iglesias in the New York area via Western Union. Finally, it was determined from the rental application form for the apartment that it had been leased to Martinez, with Sutton listed as his employer. The telephone service was also listed to Martinez. The three defendants were jointly tried before a jury in the United States District Court for the Southern District of Ohio. The jury was given its instructions by the court on August 4, 1987, and the alternate jurors were discharged without objection. At the end of the day, the jury was released for the evening following appropriate cautionary instructions by the district judge. As one of the Assistant United States Attorneys was exiting the courtroom, he observed Sandy Halasz, the wife of Steven Halasz, one of the jurors, embrace Longmire’s wife. The next morning, after leaving her husband, who entered the jury deliberation room, Sandy Halasz was observed conversing with Longmire and his wife. It was then learned that Sandy Ha-lasz had been observed in the witness room prior to the commencement of the jury's deliberations speaking with Longmire and his wife, and had previously been seen talking to a law clerk for one of the defense counsel. The Assistant United States Attorney reported these incidents to the district judge and defense counsel whereupon an investigation was undertaken by the court. Sandy Halasz was interrogated by the judge in his chambers in the presence of counsel. She admitted to the reported incidents and explained that upon inquiry from her husband she told him that during the trial, she occupied herself by relaxing in the witness room, where she had on several occasions chatted with the Longmires who had, from time to time, entered the area. She also stated that she had not disclosed the substance of any of these conversations to her husband, who had never inquired about them. The trial judge verified Sandy Halasz’s statements with her husband, Steven, who corroborated his wife’s responses to the court and stated further that the only information which his wife had disclosed to him was that she had been conversing with the Longmires in the witness room. He also assured the court that he had not discussed the substance of the jury’s deliberations with his wife. After examining both Steven and Sandy Halasz, the judge conferred with counsel and determined to remove Steven Halasz from the jury and to accept a verdict from the remaining eleven jurors, pursuant to the discretionary authority accorded him under Federal Rule of Criminal Procedure 29(b). On August 25, 1987, the jury returned guilty verdicts against each of the defendants on all counts of the indictment. Ra mos was sentenced to five years incarceration on the conspiracy count, and five years on the possession of cocaine charge, to be served consecutively. Longmire was sentenced to five years imprisonment on the conspiracy charge, four years imprisonment on the telephone charge, and five years on the attempted possession of cocaine charge, the first six months of which were to be served consecutively to the other two sentences, while the remainder of the time was to be served concurrently. Sutton was sentenced to twenty years imprisonment on the conspiracy count, and twenty years incarceration on the attempted possession of cocaine count, to be served concurrently. All three defendants filed timely notices of appeal, which were consolidated for hearing before this court. On appeal, the defendants charged that the district court improperly permitted evidence at the trial describing events which had occurred after Ramos had been taken into custody, arguing that such evidence was inadmissible because those actions occurred after Ramos had been arrested and after he undertook to cooperate with the police authorities and therefore were not in furtherance of any conspiracy that may have existed between the parties. However, existing precedent dictates that where one conspirator has been arrested or has agreed to cooperate with the authorities, the subsequent actions of other co-conspirators are admissible against all the participants, including the previously arrested member of the conspiracy. United States v. Wentz, 456 F.2d 634, 637 (9th Cir.1972) (“An unarrested co-conspirator still operating in furtherance of the conspiracy may say and do things which may be introduced against the arrested one if the conspiracy is still in operation.”); accord United States v. Hamilton, 689 F.2d 1262, 1269 (6th Cir.1982) (“[W]here, as here, the unarrested coconspirators are still capable of perpetuating the ongoing conspiracy, the statements made by them to the arrested conspirator are admissible for Rule 801(d)(2)(E) purposes, even when the arrested conspirator was acting ‘under the direction and surveillance of government agents to obtain evidence against the co-conspirators.’ ”) (quoting United States v. Cohen, 197 F.2d 26, 29 (3rd Cir.1952)), cert. denied sub nom. Wright v. United States, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971 (1983); United States v. Thompson, 533 F.2d 1006, 1010 (6th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 353, 50 L.Ed.2d 308 (1976). The objection to the evidence relating to activities occurring after the arrest of Ramos is thus without merit. The defendants also urged that the district court erred in dismissing a juror after the jury had commenced its deliberations and by accepting a verdict against the defendants from eleven jurors, thereby depriving the defendants of their right to a unanimous verdict of a twelve member jury mandated in a criminal case. See United States v. Brown, 823 F.2d 591, 595 (D.C.Cir.1987) (“In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), five members of the Supreme Court interpreted this amendment to endow a federal criminal defendant with the right to a unanimous verdict.”); United States v. Essez, 734 F.2d 832, 840-41 (D.C.Cir.1984); see also Fed.R.Crim.P. 31(a) (“The verdict shall be unanimous.”). In 1983, the Federal Rules of Criminal Procedure were amended to specifically permit the district courts to conclude a trial in progress with an eleven-member jury in any case where the district court, in the scope of its discretion, had determined that there was just cause to excuse one of the sitting jurors. Even absent ... stipulation [by the parties to the criminal case], if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors. Fed.R.Crim.P. 23(b) (as amended effective August 1, 1983). The defendants have suggested that the district court failed to comply with the terms of Rule 23(b) because it made no explicit factual finding of record to support a conclusion that it was “necessary to excuse a juror for just cause.” Fed.R. Crim.P. 23(b). This argument is unfounded. The record clearly reflected that, subsequent to being advised of a potential irregularity during the jury’s deliberations, the district judge conducted a hearing pursuant to the teachings of Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), and interviewed both the wife of the juror and the juror himself in the presence of counsel. See United States v. Pennell, 737 F.2d 521, 534 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985); see also Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982); United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir.1985), cert. denied sub nom. Brooks v. United States, 476 U.S. 1119, 106 S.Ct. 1981, 90 L.Ed.2d 663 (1986). The district court, only after completing its inquiry into the incident, concluded that there was sufficient information to support a finding of potential impropriety, justifying the dismissal of Steven Halasz and acceptance of a verdict from the remaining eleven members of the jury, pursuant to Rule 23(b). The court’s procedure was in accordance with pronounced judicial protocol and its decision to excuse a juror, and to continue with eleven remaining members of the jury, pursuant to the dictates of Rule 23(b), was within the sound discretion of the trial court. See United States v. Armijo, 834 F.2d 132, 135 (8th Cir.1987) (“[t]he matter is left to the discretion of the trial court.”); United States v. Brown, 823 F.2d 591, 597 (D.C.Cir.1987) (“Courts may use Rule 23(b) in many circumstances to discharge a juror.”); United States v. Stratton, 779 F.2d 820, 832 (2nd Cir.1985) (“We read the ‘just cause’ standard ... broadly to encompass a variety of temporary problems that may arise during jury deliberations, confronting the trial judge with the need to exercise sound discretion as to the procedure to be followed at a particularly sensitive stage of the trial.”) (dismissal of juror who expressed desire to attend religious ceremonies); United States v. Gambino, 788 F.2d 938, 946-49 (3rd Cir.) (removal of juror who was inadvertently exposed to materials not submitted into evidence upheld as within scope of trial court’s discretion), cert. denied, 479 U.S. 825, 107 S.Ct. 98, 93 L.Ed.2d 49 (1986); accord United States v. Molinares Charris, 822 F.2d 1213, 1223 (1st Cir.1987) (“We should not be quick to second-guess a trial judge, who was in a better position than we are to assess the severity of the situation.”); accord Shackelford, 777 F.2d at 1145 (“[T]he trial judge is in the best position to determine the nature and extent of alleged jury misconduct ... ”); Pennell, 737 F.2d at 533-34 (district court’s determination to “grant a mistrial after investigating allegations of unauthorized contact with jurors should be reviewed only for abuse of discretion” in light of district judge’s ability to assess juror’s demeanor); cf. United States v. Griffith, 756 F.2d 1244, 1252 (6th Cir.) (“[0]n appeal the judge’s decision whether to grant a mistrial because of the jury’s use of or exposure to extraneous matter will be reviewed only for abuse of discretion.”), cert. denied, 474 U.S. 837, 106 S.Ct. 114, 88 L.Ed.2d 93 (1985); United States v. Campbell, 845 F.2d 782, 785-86 (8th Cir.1988) (no abuse of discretion where juror excused before jury had begun its deliberations due to connection between juror’s in-laws and defendant), petition for cert. filed, 57 U.S.L.W. 3062 (U.S. July 8, 1988). The defendants have also charged error to the district court for its failure to have granted the defendants’ motion for acquittal pursuant to Federal Rule of Criminal Procedure 29(a), because the government had failed to present sufficient evidence to sustain a conviction on any of the criminal charges. The district court, however, inadvertently overlooked ruling upon the motion for acquittal. “Although courts have uniformly recognized that it is error to reserve ruling on a Rule 29(a) motion made at the close of the government’s case in chief, they have also held that the error is harmless if at the close of the government’s case in chief the evidence viewed in the light most favorable to the government was sufficient to permit submission of the case to the jury.” United States v. Reifsteck, 841 F.2d 701, 703 (6th Cir.1988) (emphasis added); accord United States v. Rhodes, 631 F.2d 43, 45 (5th Cir.1980) (“[I]f the trial court erroneously defers ruling on the motion for acquittal and the defendant presents evidence, the appellate court in reviewing the sufficiency of the evidence will only consider the evidence presented in the Government’s case-in-chief.”). Viewing the evidence presented by the government in its case-in-chief in the light most favorable to the government, there was more than sufficient evidence to have supported a conviction on each of the counts alleged in the indictment against each of the defendants. The evidence in the instant case demonstrated that Ramos was engaged in a longstanding and ongoing conspiracy with both Longmire and Sutton to possess and to distribute cocaine. The sting operation which occurred in the apartment of Ramos on the afternoon of April 13, 1987 provided direct evidence of sufficient weight to prove the existence of such a conspiracy. In addition, the documentary materials which were disclosed as a result of the search of the Ramos apartment and Long-mire’s vehicle, including various notations, receipts and telephone numbers along with a large amount of cash, would have permitted a jury to have concluded that Ramos had been receiving cocaine for several months from sources in New York, and had been distributing that cocaine through Longmire and Sutton, and had been instrumental in collecting the money for the sale of this drug. Similarly, the attempted possession of cocaine charge against Longmire and Sutton, pursuant to 21 U.S.C.A. § 846, was supported by evidence which demonstrated that Longmire and Sutton responded within one hour to a telephone call from Ramos advising them of a newly arrived shipment of cocaine. Additionally, a search of Long-mire’s automobile revealed a large amount of cash, sufficient to pay their indebtedness for earlier purchases of cocaine, together with papers which disclosed schedules of previous cocaine deliveries as well as payments for past transactions, along with telephone numbers of other co-conspirators. See United States v. Williams, 704 F.2d 315, 321 (6th Cir.) (sufficient evidence to withstand motion for acquittal where defendant “actively solicited a narcotics sale by telephone and within a short time interval voluntarily appeared at the ... residence ... with a weapon and a substantial amount of cash to consummate the purchase_”), cert. denied, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983); accord United States v. Manley, 632 F.2d 978, 987 (2nd Cir.1980) (sufficient evidence to support conviction for attempt to possess narcotics when the defendant was present in a residence of an acquaintance where cocaine was discovered and the defendant possessed a sum of currency roughly equivalent to the purchase price of a quantity of cocaine discovered upon a scale), cert, denied sub nom. Williams v. United States, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981). The initial search of the Ramos apartment produced a kilogram of 90% pure cocaine, which presented sufficient evidence to have convicted Ramos for possession of cocaine. Finally, the phone call between Ramos and Longmire, monitored by the federal agents, was adequate to have permitted the jury to convict Long-mire on the use of the telephone to further the conspiracy charge against him. The defendants have also alleged that the district court erred in permitting one of the enforcement officers who testified at trial to comment on certain statements made by Ramos to the officer after his arrest. Ramos did not testify at the trial, which prompted the district court to caution the government to avoid any reference to the Ramos confession during the trial, to conform with Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and its progeny. During the course of direct examination, the government was faithful to the district court’s admonition. Upon the government’s request, the court also cautioned defense counsel from implicating the Ramos confession through statements made to enforcement agents on cross-examination. At several points during cross-examination of an enforcement agent, however, defense counsel attempted to explore the previous relationship that Ramos may have had with the remaining defendants. The court again cautioned defense counsel that “if you persist in innuendos [relating to the confession of Ramos], you may very well be opening the door.” In spite of these repeated admonitions by the trial court, defense counsel continued to press the enforcement agent about information conveyed to him that involved Long-mire or Sutton in the sale or distribution of cocaine prior to their meeting with Ramos in the latter’s apartment. After defense counsel had implicated the Ramos confession on cross-examination, the government attempted, during redirect examination, to clarify any misconception created by the defense counsel’s interrogation during cross-examination. Specifically, the government asked the agent if Ramos had ever identified his buyers, to which the agent responded that Ramos had identified Longmire and Sutton as his customers. Defendants’ counsel objected to the statement and requested a cautionary instruction, pursuant to the Bruton doctrine, that a confession given by a co-conspirator who did not testify at trial was inadmissible against anyone except the confessing party. The district court overruled the objection and refused the motion for the cautionary instruction, concluding that the testimony was admissible and that the instruction was not necessary.
848040-7053	RITTER, Senior Judge: A military judge, sitting as a general court-martial, convicted the appellant, pursuant to his pleas, of two specifications of indecent acts with a child under the age of 16, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The appellant was sentenced to a bad-conduct discharge, confinement for 12 months, and reduction to pay grade E-l. We have carefully considered the record of trial, the appellant’s single assignment of error, and the Government’s response. We conclude that the findings and sentence are correct in law and fact, and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c). The appellant’s pay was terminated pursuant to Department of Defense regulations upon the expiration of his enlistment while he was in pretrial confinement. See Department of Defense Financial Management Regulation (DODFMR), Volume 7A, ¶¶ 010302Flc, G3 and G4. At trial, he asserted that he had a statutory right to military pay while in pretrial confinement, even after the expiration of his term of enlistment. See 37 U.S.C. § 204(a)(1). On appeal, the appellant contends that the military judge erred by applying this regulation, rather than the statute, in denying his motion for appropriate relief. Jurisdiction Regarding Entitlement to Pay As a preliminary matter, the Government contends that this court lacks subject matter jurisdiction over military pay issues. We agree generally with that proposition, but find that we have jurisdiction to decide the underlying issue before us. The jurisdiction of this court is narrowly proscribed by Congress. See Arts. 62, 66, 69, and 73, UCMJ, 10 U.S.C. §§ 862, 866, 869, and 873; see also Clinton v. Goldsmith, 526 U.S. 529, 535, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999)(eonstruing similar language in Article 67(c), UCMJ, 10 U.S.C. § 867(c), defining the jurisdiction of our superior court). At issue in this case is our authority under Article 66(c), UCMJ, which provides in part: In any case reviewed by it, the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. Were the appellant making a specific request of this court to determine his entitlement to back pay under the administrative regulations, we would be without jurisdiction to act. Cf. United States v. Webb, 53 M.J. 702, 703 (Army Ct.Crim.App.2000)(holding that a Court of Criminal Appeals does not have jurisdiction to adjudicate a claim for retired pay). However, the appellant’s motion at trial claimed the stoppage of his pay constituted unlawful pretrial punishment. Record at 70; Appellate Exhibit XXVII. On appeal, he claims that the military judge erred in denying his motion. Appellant’s Brief of 9 Jun 2003 at 3. An evaluation of whether the stoppage of the appellant’s pay violated Article 13, UCMJ, 10 U.S.C. § 813, is properly within this court’s subject matter jurisdiction. See generally United States v. Anderson, 49 M.J. 575 (N.M.Ct.Crim.App.1998)(invalidating brig’s procedure of placing all pretrial detainees facing more than five years confinement in maximum custody as a violation of Article 13, UCMJ). Illegal Pretrial Punishment Whether a pretrial detainee suffered unlawful punishment is a mixed question of law and fact that qualifies for independent review. See United States v. Pryor, 57 M.J. 821, 825 (N.M.Ct.Crim.App.2003), rev. denied 59 M.J. 32 (C.A.A.F.2003). The burden of proof is on the appellant to show a violation of Article 13, UCMJ. See United States v. Mosby, 56 M.J. 309, 310 (C.A.A.F.2002). Article 13 prohibits two things: (1) the intentional imposition of punishment on an accused before his or her guilt is established at trial, i.e., illegal pretrial punishment, and (2) arrest or pretrial confinement conditions that are more rigorous than necessary to ensure the accused’s presence at trial, i.e., illegal pretrial confinement. See United States v. Inong, 58 M.J. 460, 463 (C.A.A.F.2003). The “punishment prong” of Article 13 focuses on intent, while the “rigorous circumstances” prong focuses on the conditions of pretrial restraint. See Pryor, 57 M.J. at 825 (citing United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F.1997)). As a detainee’s pay status is not a condition of the restraint, nor relevant to ensuring presence at trial, the appellant’s claim only implicates the punishment prong of Article 13. To determine if the stoppage of the appellant’s pay violated the punishment prong of Article 13, we must determine whether this pretrial action was intended to be punishment and whether it furthered a legitimate governmental objective. See Anderson, 49 M.J. at 576; see generally Bell v. Wolfish, 441 U.S. 520, 538-39, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). 1. There was no intent to punish the appellant. We find that the military judge’s findings of fact on this issue are fully supported by the record, and adopt those findings here. Record at 89; Appellate Exhibit XXXVT. The record is clear, from the appellant’s own evidence submitted in support of the motion, that there was no punitive intent behind the stoppage of his pay. To the contrary, when the trial defense counsel first inquired of brig staff about the status of the appellant’s pay, the staff indicated that the appellant should have been receiving pay, and that it would be restarted. Only after researching the applicable regulations did the staff inform the trial defense counsel that the appellant could not be paid. We agree with the military judge that the local authorities were merely carrying out the regulation, and not attempting to punish the appellant. 2. The regulation does not operate as punishment. We then turn to the question of whether the DODFMR provisions at issue further a legitimate governmental interest. Three subparagraphs of ¶ 010302 of the DODFMR operate to deny pay to service members in the appellant’s situation: 010302. Unauthorized Absence and Other Lost Time F. Military Confinement 1. General. Pay and allowances accrue to a member in military confinement except when: e. The term of enlistment expires. See subparagraph 010302.G below. G. Term of Enlistment Expires 3. Enlistment Expires Before Trial. An enlisted member retained in the Military Service for the purpose of trial by court-martial is not entitled to pay for any period after expiration of the enlistment unless acquitted or the charges are dismissed, or the member is retained in or restored to a full-duty status. 4. Confined Awaiting Trial by Court-Martial. If a member is confined awaiting court-martial trial when the enlistment expires, pay and allowances end on the date the enlistment expires. If the member is acquitted when tried, pay and allowances accrue until discharge.
9250583-29262	MEMORANDUM OPINION GRANTING PETITIONER’S WRIT OF HABEAS CORPUS CLEMON, Chief Judge. Invoking 28 U.S.C. § 2254, Petitioner James Callahan (“Petitioner” or “Calla han”) seeks a writ of habeas corpus, averring that his death sentence is barred by the Constitution of the United States. The Magistrate Judge has duly considered Callahan’s petition, and he has issued a Report and Recommendation (“R & R”), in which he urges the Court to deny the habeas writ. Two compelling considerations counsel against the adoption of the R & R. First, the Court concludes that the Petitioner has been denied his Sixth Amendment right to a fair and impartial tribunal. Petitioner’s conviction was based in large part on his fourth confession, given after two days of custodial interrogation. During this investigatory stage of the case, after a lawyer had been denied access to Petitioner, a circuit judge “went into the room where the deputies were questioning [the Petitioner].” He advised Petitioner of his Miranda rights and otherwise conversed with him. The same judge was assigned the case after Petitioner was indicted. At trial, a key issue was the volun-tariness of the very confession which was “interrupted” by the trial judge. Prior to trial, Petitioner unsuccessfully sought the recusal of the judge, based on the judge’s personal knowledge of the circumstances and conditions surrounding Petitioner’s interrogation. The trial judge denied Petitioner’s recusal motion. Second, at the sentencing stage, Petitioner was denied his Sixth Amendment right to the effective assistance of counsel. At the sentencing stage, only one witness was called by Petitioner’s inexperienced criminal lawyer. Petitioner’s aunt-in-law, who basically expressed sympathy for the victim’s family. There was no evidence of any substantial preparation for the sentencing hearing — which lasted less than an hour. Thus, based on the Court’s independent consideration of the record and the law, and notwithstanding the Magistrate Judge’s R & R, the Court will grant the writ of habeas corpus. I. Procedural History On June 26, 1982, Petitioner was convicted in the Circuit Court of Calhoun County of capital murder of Rebecca Suzanne Howell during the course of a kid-naping. The jury recommended that Petitioner be sentenced to death, and Trial Judge Samuel H. Monk sentenced him to death on July 8, 1982. However, the conviction was overturned on appeal and remanded for a new trial. Callahan I. Petitioner was again convicted of capital murder on November 12, 1987, and on November 25, 1987, Judge Monk again sentenced him to death. This second conviction was affirmed on appeal by the Alabama Court of Criminal Appeals, Callahan v. State of Alabama, 557 So.2d 1292 (Ala.Crim.App.1989) (“Callahan II”), and the Alabama Supreme Court, Ex parte Callahan, 557 So.2d 1311 (Ala.1989). The United States Supreme Court denied Callahan’s petition for certiorari on October 1, 1990. Callahan v. Alabama, 498 U.S. 881, 111 S.Ct. 216, 112 L.Ed.2d 176 (1990). On September 30, 1992, Petitioner filed a petition for post-conviction relief pursuant to Rule 32, Ala. R.Crim. P. An eviden- tiary hearing was held on July 1 and 2, 1996, before Judge Monk. On February 17, 1998, Judge Monk denied Petitioner’s Rule 32 petition. The denial of the Rule 32 petition was affirmed by the Alabama Court of Criminal Appeals on April 30, 1999. Callahan v. State of Alabama, 767 So.2d 380 (Ala.Crim.App.1999) (“Callahan III”). The Alabama Supreme Court denied Callahan’s petition for certiorari on March 31, 2000. Ex parte Callahan, 767 So.2d 405 (Ala.2000). II. Factual Determinations State court determinations of factual issues are entitled to a presumption of correctness in federal habeas proceedings. See 28 U.S.C. § 2254(e)(1). The Court therefore adopts the factual findings of the Alabama Court of Criminal Appeals and the Alabama Supreme Court to the extent that they are supported by the record. In Callahan II, the Alabama Court of Criminal Appeals found: Rebecca Howell disappeared on the night of February 3, 1982. Her body was discovered in Tallasseehatchee Creek in Calhoun County on February 17. Callahan was a suspect in her disappearance and murder. On February 22, 1982, Calhoun County Deputy Sheriff Johnny Alexander had maintained surveillance on Callahan’s track for five hours before Callahan came out of his father’s house and drove away at 5:00 that morning. Deputy Alexander knew that the license tag on Callahan’s truck was registered to another vehicle. He also knew that Callahan was a suspect in the Howell murder, and Deputy Alexander was familiar with that investigation. Deputy Alexander and Jacksonville Police Sergeant Kathy Thienes stopped Callahan for having a switched tag. Deputy Alexander testified that he “explained to [Callahan] that ... the tag he had on his vehicle didn’t belong to that vehicle, and that we were going to write him a ticket for a switched tag.” Alexander told him that “we would have to take him to jail to write him a ticket.” At that time, the administrative policy of the sheriffs office did not permit deputies to carry “ticket books” in their vehicles. The sheriffs office was located in the county jail and the ticket book was kept there. Anyone stopped for a traffic violation was taken “to jail” where the citation was issued. This was standard procedure. When Callahan was stopped, his conduct was suspicious and he appeared to place something behind the seat of his truck. His track was impounded and later searched pursuant to a search warrant. Deputy Alexander and Sergeant Thienes transported Callahan to the sheriffs office at the county jail. After Callahan had been issued a ticket for having a switched tag, Deputy Alexander told him that some investigators wished to talk with him. Callahan replied “okay” and Alexander told him “he could have a seat back by the television in the back of the lobby area of the county jail.” Although Deputy Alexander testified that Callahan was not free to leave at that time, he also testified that he never told or placed Callahan under arrest, never placed him in custody or in jail, and never told him that he could not leave. Deputy Alexander candidly admitted that the primary reason Callahan was stopped was because he was a suspect. At trial, Alexander testified, and the State argued, that the purpose of taking Callahan to the sheriffs office was twofold: First, to issue him a ticket for having an improper tag; and second, to turn him over to the investigators of the disappearance and murder of Rebecca Howell. Deputy Alexander remained at the sheriffs office until 7:30 or 8:00 A.M. He testified that during that time “nothing appeared to be wrong with [Callahan] physically,” but that he “appeared to be a little nervous.” Deputy Max Kirby arrived at the sheriffs office around 5:45 A.M. and observed that Callahan was watching television. He testified that, approximately thirty minutes after he arrived, he and Deputy Larry Amerson walked over to Callahan and told him they would like to talk with him. Callahan said “Okay” and continued to watch television. Kirby said that it would be a while and Callahan again replied “Okay.” As best this Court can determine, Callahan was fingerprinted at 7:15 A.M. At approximately 7:45 A.M., Kirby went to the District Attorney’s Office, returning over an hour later. When Kirby returned, Callahan was still watching television. At approximately 9:00 A.M., Deputies Kirby 'and Amerson served Callahan with a “probation tolling order/arrest warrant” issued by Circuit Judge Malcolm E. Street and placed him under arrest pursuant to that order. Deputy Kirby then advised Callahan that he wished to talk with Callahan regarding the Howell case. Thereafter, Callahan gave four statements, two on February 22 and two on February 23. The substance of, and the circumstances surrounding, those statements are as follows: (1) Beginning around 9:30 A.M. on the morning of February 22, Callahan gave his first statement in the presence of Deputy Kirby and Sergeant Thienes. This statement was transcribed by Kirby and bears Callahan’s signature at the bottom of each page. Deputy Kirby testified that, prior to taking his statement, he advised Callahan of his Miranda rights. Callahan stated that he understood these rights and informed Kirby that he had an attorney, but that “he didn’t need him right then” and “would let [Kirby] know when he needed him.” Kirby wrote down the name, address, and telephone number of his attorney. Callahan then executed a waiver of rights, which was witnessed by both Kirby and Thienes. Deputy Kirby testified that, while he was present, Callahan was neither threatened nor offered any reward or hope of reward in order to induce him to make a statement. In this statement, Callahan maintained that, on the night Ms. Howell disappeared, he washed clothes at a Jacksonville washateria and then went to the Jacksonville Hospital where his father was visiting his mother. Around 11:00 P.M., he left the hospital with his father and they traveled in separate vehicles to his father’s house in Anniston. He remained there for the rest of the night. (2) Callahan gave a second statement on the afternoon of February 22, beginning around 1:45 P.M. and ending at 3:25 P.M. In his statement, Callahan claimed that he was washing clothes in a Jacksonville washateria on the night of February 3 when he saw Ms. Howell, whom he had met before. They entered into a conversation, during which she stated that she was engaged to be married, and Callahan offered to rent his mobile home to her and her future husband. According to Callahan, Ms. Howell wished to view the mobile home that night. Around midnight, they left the washate-ria in his truck and drove to the mobile home, which was located just outside Jacksonville in rural Calhoun County. While they were at the mobile home, Callahan’s estranged wife (whom he had earlier observed in an automobile outside the laundromat) came in, pointed a gun at Callahan, accused him of cheating on her, and forced him to tape Ms. Howell’s hands together with tape from the kitchen cabinet. Callahan then managed to escape out the back door and leave in his truck. Shortly after completing this statement, Callahan changed portions of it to add that he had dated Ms. Howell prior to February 3 and that he and Ms. Howell were having sexual intercourse when his wife arrived at the mobile home. This statement was given in the presence of Assistant District Attorney Joseph D. Hubbard, Deputy Kirby, Deputy Larry Amerson, and Ms. Diana Hinds, a court reporter, who subsequently transcribed the statement. Hubbard testified that, prior to any questioning, Callahan was advised of his Miranda rights by Deputy Amerson and executed a written waiver of counsel. Hubbard also stated that no one offered Callahan any reward or hope of reward in return for making a statement, nor did any one threaten Callahan in any manner to induce him to make a statement. Prior to actually giving this statement, Callahan said, “I know of my rights. I wish to give a statement at this particular time in order to help clear my own personal self.” (3) The third statement was given by Callahan around 10:15 on the morning of February 23. Earlier that morning, at Callahan’s request, law enforcement officers had obtained a photograph from Callahan’s father’s house. In his statement, Callahan identified the girl in the photograph as one Malera Fox and asserted that she resembled Ms. Howell. According to Callahan, Mrs. Fox had once expressed interest in him, causing his wife to become jealous. He suggested that his wife mistook Ms. Howell for Mrs. Fox at his mobile home on the night of February 3. This statement was made in the presence of Assistant District Attorney Hubbard, Deputy Kirby, and Sergeant Thienes. Hubbard taped this statement and it was later transcribed by Ms. Pari-an Tidwell, a court reporter. Hubbard testified that, prior to any questioning, Deputy Kirby advised Callahan of his Miranda rights and Callahan executed a written waiver of rights. At that point, Hubbard stated that he “asked Mr. Callahan or stated to him, ‘All right. Jimmy, with these rights in mind, do you wish to talk to us about what we were talking about yesterday?’ And the Defendant stated, Tes, I’ll continue talking because I’m trying to clear myself.’ And I stated to the Defendant, ‘All right, sir. But you voluntarily are talking to us?’ The Defendant stated, quote, ‘Right,’ unquote. Then I asked, ‘Is that correct? Okay. And you understand all of those rights?’ And Mr. Callahan stated, Yes, I really do.’ ” Hubbard also stated that no reward or hope of reward was offered to Callahan nor was Callahan threatened in any manner to obtain this statement. (4) The most damaging statement was given by Callahan on the afternoon of February 23, beginning around 2:45 P.M. Present during this statement were Mr. Hubbard, Deputy Kirby, Sergeant Thienes, Sergeant Lawton Hall, and Ms. Hinds, the court reporter who later transcribed the statement. The circumstances surrounding the taking of this statement were described by Hubbard. Prior to giving this statement, Callahan was again advised of his constitutional rights by Deputy Kirby and executed a written waiver of counsel. Hubbard testified that the statement that followed was given voluntarily by Callahan and that no one threatened Callahan nor did anyone offer him a reward or hope of reward in return for the statement. In this statement, Callahan admitted that he forced Ms. Howell to leave the laundromat with him. He took her to his mobile home where he held her prisoner for two days. On the night of February 4, she agreed to have sexual intercourse with him in return for his releasing her and they, in fact, had sexual intercourse. On the night of February 5, he taped her hands together and began to drive her to an area near some houses where he planned to release her. However, near the creek in which her body was later found, she jumped out of the truck and ran toward the creek. Callahan stated that Ms. Howell’s boots, pantyhose, and socks were in the back of his truck and that he threw the boots out on his drive back. Callahan did not give any other formal statements [after February 24], However, on February 24, he offered to show law enforcement officers where he had discarded Ms. Howell’s boots. He drove around with the officers directing them to certain locations. Although he was unable to locate Ms. Howell’s boots on this expedition, Callahan did lead officers to Ms. Howell’s purse, which was found behind a woodpile at the home of Callahan’s father-in-law, located in Col-linsville, Alabama. Callahan also directed the officers to his father’s house in Anniston where he retrieved from his camper a knife which he said was lying on the dashboard of his truck the night he forced Ms. Howell to leave the laundromat with him. Ms. Howell’s boots were subsequently turned over to law enforcement personnel by Callahan’s brother-in-law, Paul Henninger, who had found them around February 21 in Callahan’s mobile home. Deputy Kirby testified that the officers had no intention of talking with Callahan after attorney Lybrand’s arrival on February 23. However, between 11:00 and 11:30 A.M. on February 24, Callahan sent word to Deputy Kirby through a trusty that he wished to talk to Kirby. Some twenty minutes after receiving this message, Kirby had Callahan brought to him and he orally informed Callahan of his Miranda rights. Callahan stated that he understood these rights and then told Kirby that he could show Kirby where he threw Ms. Howell’s boots out of his truck. Deputy Kirby read and explained to Callahan a waiver of counsel form and a consent form for Callahan to accompany law enforcement officers on a search for Ms. Howell’s “boots, socks, and other items of clothing.” Callahan stated that he understood these documents and then signed both forms. Sheriff Snead testified that no reward or hope of reward was offered to Callahan nor was Callahan threatened in order to induce him to accompany the officers on this trip. Callahan took the stand only at the hearing on his motion to suppress. In contradiction of the State’s evidence set forth above, Callahan denied that he was served with the probation tolling order, denied that he was ever informed of his constitutional rights at any time, and denied signing any of the waiver of counsel forms. He stated that he asked to call an attorney some twenty to twenty-five times, but that these requests were refused; that Deputy Kirby threatened and physically mistreated him, with some of this taking place in the presence of Joe Hubbard; that “Kirby mentioned a couple of times things go easier on you if you give statements or whatever.”; that he was not given food or drink; that he was in poor condition physically due to lack of sleep and the consumption of alcohol and drugs; that he did not voluntarily go on the trip with the officers on February 24. Callahan maintained that he “wasn’t voluntarily doing anything.” He also asserted that the statements transcribed by Ms. Hinds were incorrect and did not reflect what he actually said. In response to the trial judge’s question as to why, when he (the judge) and attorney Lyb-rand came into the interrogation room, Callahan did not appeal to them for assistance, Callahan replied that he “did make efforts to Mr. Lybrand for help” and “advised him what was going on at that time.” A copy of attorney Lybrand’s testimony from the prior trial was introduced by Callahan at the suppression hearing. This testimony merely recounts that Lybrand went to the Calhoun County Jail on the afternoon of February 23 at the request of Callahan’s father. He spoke with Sheriff Snead and requested to talk with Callahan, but was not permitted to do so. Lybrand then went to Judge Monk’s office and “explained to him that [he] had been contacted by the family and that [he] had told them that [he] would go down to the jail and see if [he] could talk to Mr. Callahan.” Lyb-rand returned to the jail with Judge Monk, who entered the interrogation room, and, shortly thereafter, Lybrand was allowed to talk with Callahan. Around 5:00 that afternoon, Lybrand called the Callahan family to explain that, due to his personal relationship with the family of the victim, he was unable to represent Callahan in this matter. Lybrand conveyed this same information to the District Attorney the next morning. There is nothing in Lyb-rand’s testimony to indicate that Callahan informed him of the alleged mistreatment, abuse, and deprivation that Callahan asserts he received at the hands of law enforcement officers. Lyb-rand did testify that, when he entered the. interrogation room, Callahan “appeared to be tired and somewhat emotional.” In rebuttal, Deputy Kirby stated unequivocally that he did not threaten or physically abuse Callahan in any way; that Callahan “was very eager to cooperate”; and that this cooperation was not the result of any threats or promises. Assistant District Attorney Hubbard also testified in rebuttal. He stated that Callahan never requested to use the telephone; that he observed Callahan drinking several soft drinks and asked Callahan several times if he wanted any thing to eat or drink; that Callahan did not at any time appear to be sedated or suffering from any emotional or mental distress; that he had read the statements transcribed by Ms. Hinds and they were “exactly what Mr. Callahan said on those occasions”; that Deputy Kirby never threatened or intimidated Callahan in his presence; and that he saw Callahan sign three of the waivers introduced. Hubbard had previously testified that, during the three statements made in his presence, Callahan never requested to see an attorney; did not appear to be under any stress whatsoever, except that he did become “emotional” and “whimper[ed]” at times during the last statement, which was the only statement in which he admitted abducting Ms. Howell; was allowed to drink and eat; and, overall, was eager to cooperate. Callahan II, 557 So.2d at 1295-98. Judge Monk’s Involvement in the Investigatory Stage The record itself is the best evidence of the verbal interaction between Judge Monk and the Petitioner while he was giving his fourth confession on February 24. MR. HUBBARD: Jimmy, is there anything else you want to add of your own free will at this time? MR. CALLAHAN: I didn’t mean to hurt anybody. She just jumped out and run. JUDGE MONK: Mr. Callahan, I’m Judge Monk. Now I know you’ve been explained your rights so far. I want to run over those rights with you once again. Do you understand what I’m saying? MR. CALLAHAN: Right JUDGE MONK: All right. And do you understand that you have the right to remain silent in this case and not cooperate with the police in anyway? MR. CALLAHAN: Right. JUDGE MONK: Do you understand that anything that you tell them can and will be used against you in court by the State in the prosecution of this case? MR. CALLAHAN: Yes, sir. Ido. JUDGE MONK: Do you understand that you have the right to discuss the case or talk with an attorney before any questioning proceeds? MR. CALLAHAN: Right. JUDGE MONK: All right. And do you understand that if you cannot afford to hire an attorney that an attorney will be appointed to represent you and that the questioning will stop until such time as you’ve had an opportunity to talk with that attorney? MR. CALLAHAN: I understand all that. JUDGE MONK: All right. Do you understand that you can stop at any time that you wish to? In other words, that you can stop answering their questions at any time you want to? Do you understand all of that? MR. CALLAHAN: Right. JUDGE MONK: Now, it’s my understanding that you told them you do not wish to have an attorney with you: is that correct? MR. CALLAHAN: I don’t need one. I just - JUDGE MONK: All right, Now, let me tell you — listen to me, please, Mr. Cal lahan. Your father has retained the services of an attorney by the name of Fred Ray Lybrand. Do you know Mr. Lybrand? MR. CALLAHAN: Yes sir. JUDGE MONK: Do you want to talk with Mr. Lybrand or would you just— do you want to go ahead and continue talking with the police officers without talking to him? It’s your personal decision, Mr. Callahan, and it must be made by you, not your father. MR. CALLAHAN: I’m not trying to hide anything. I just — I’m just upset. I don’t want — I don’t want anybody to get hurt over this. It wasn’t intentions of nobody getting hurt. JUDGE MONK: Do you understand my questions? Mr. Lybrand is available to speak with you if you want to talk with him, but no one is forcing you or telling you that you have to talk with him. It’s your choice. I’m going to ask you again, would you like to talk to Mr. Lybrand before you go any further or would you like to waive your right to talk to Mr. Lybrand? MR. CALLAHAN: Hold on for just a second. Can I talk to you just a minute? JUDGE MONK: Mr. Callahan, you cannot look to the police officers to advise you as to your rights. That’s something I’ve advised you to, and I know they’ve given you your rights. But it’s a decision that you have to make. Now, I’m going to ask you one more time. Do you wish to speak to Mr. Lybrand or do you want me to tell Mr. Lybrand that you do not wish to speak with him? MR. CALLAHAN: If my father sent him down here, I might ought to talk to him briefly. But that would be about all. JUDGE MONK: That’s your choice. And they’ll stop all proceedings at this point. R. 742-742. The exchange between Judge Monk and Petitioner occurred in the presence of assistant district attorney Hubbard, three deputy sheriffs, and a court reporter. Ineffective Assistance of Counsel Claim The Court of Criminal Appeals found that At the penalty phase, Callahan was represented solely by Harold P. Knight. Since Knight is deceased, there was no testimony presented at the evidentiary hearing about what kind of investigation was done to prepare for the penalty phase. Carolyn Callahan [Callahan’s sister] was the only witness to testify for Callahan at the penalty phase. She pleaded with the jury to recommend a sentence of life without parole. Callahan III, 767 So.2d at 399. The Court of Criminal Appeals’ finding that Carolyn Callahan was Petitioner’s sister is belied by the trial judge’s finding: “The Defendant put on little evidence in mitigation. His aunt, by marriage, basically asked the Jury to spare the Defendant’s life.” Sentencing Order at C-109, Tab R-56. Petitioner’s counsel failed to call Petitioner’s mother as a witness. As she did at the post-conviction proceeding, Petitioner’s mother would have testified that Petitioner’s upbringing was marked by physical violence. Indeed, Petitioner’s father was an abusive, alcoholic man, who was a Golden Gloves boxer in the Air Force. He physically and sexually abused Petitioner’s mother throughout their marriage; he also abused his children. In fact, when Petitioner was nine years old, his father chased him, his mother and his siblings with a knife. She would have testified that contrary to the testimony of Carolyn Callahan, she was not too ill to have testified at the penalty phase of Petitioner’s trial; that she was both able and willing to come and testify if Petitioner’s lawyers had only contacted her. Id., 47, 50, Tab R^t7. It is undisputed that criminal defense was not a specialty of Knight’s, and that the experienced criminal lawyer for Petitioner was Louis Wilkerson. Rule 32 Evi-dentiary Hearing at 21, Tab R-47. There is no evidence that any substantial mitigation investigation or strategy was discussed or implemented by defense counsel. In fact, Petitioner’s experienced criminal lawyer was not present for the penalty trial. Id., at 27. The entire penalty phase — from opening statements, evidence, closing statements, through jury instructions— consumed less than sixty minutes! R. 959, Tab R-21. Equally crucial was the failure of Petitioner’s counsel to present any psychological evidence. As reflected at the Rule 32 hearing, such evidence was available. Dr. John Goff, a neuropsychologist and forensic examiner, performed an extensive neu-ropsychological assessment of Petitioner. The assessment indicates that Petitioner suffers from cognitive defects and a paranoid personality disorder. Even though Judge Monk discredited Dr. Goffs findings, a jury may well not have reached the same decision. This evidence would certainly have been admissible; it should have been heard by the jury. III. The Applicable Legal Standards Since the seminal case of Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), the guiding constitutional principle has been settled: “[I]t certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.” Tumey, 273 U.S. at 523, 47 S.Ct at 441. See Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986). In the case, In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), the petitioners, Detroit policemen, were called as witnesses before a “one-man judge-grand jury.” Incredulous of their testimony, the Judge then charged both with perjury. He proceeded to try them in open court and to sentence them for contempt. In setting aside the convictions, Justice Black wrote: A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases whenever he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that ‘Every procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law. (Citing Tumey v. Ohio, supra). Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, ‘justice must satisfy the appearance of justice.’ Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11. ... A single ‘judge-grand jury’ is even more a part of the accusatory process than an ordinary lay grand juror. Having been a part of that process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused. While he would not likely have all the zeal of a prosecutor, it can certainly not be said that he would have none of that zeal. Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer. Murchison, 349 U.S. at 136, 137, 75 S.Ct. at 625, 626.
12512723-6461	In Rem as to Defendant, Stacey M. Noe [f/k/a Stacey M. Van Pelt], due to the Chapter 13 Bankruptcy filed in the Eastern District of Kentucky, case number 12-52572. Said bankruptcy was discharged via entered order therein on April 21, 2015. No personal judgment will be sought as to this Defendant. [Id. ] Chase's counsel in this matter, who was not Chase's original counsel in this bankruptcy case or the state court action, argued that this was likely only a protective measure and does not mean the lender believed the Debtor was discharged. That is not a reasonable interpretation. The complaint shows a clear understanding that the underlying personal obligation of the Debtor was discharged. It is fair to accept the plain reading of this statement when Chase has and will not offer contrary evidence. C. Approval of the Loan Modification Agreement Did Not Modify the Treatment of Chase's Claim in the Confirmed Plan. Chase suggests that its agreement to recapitalize any arrearage and take any payment outside the plan described in the Modification Motion and Modification Order shows the Debtor was not released from personal liability. Chase argues that the approval of the modification converted its claim to one under § 1322(b)(5), which is excepted from the chapter 13 discharge under § 1328(c)(1). [ECF No. 57 at 5.] This interpretation is not supported by the documents. The Modification Motion contains several inaccurate statements that prove that a modification of the treatment of Chase's claim did not occur. Chase represented that the Debtor signed the Loan Modification Agreement, but the document is only signed by Robert Van Pelt, as Borrower. [ECF No. 37, Attachment 1.] Chase's assertion that any prepetition arrearage claim was recapitalized and no longer payable was also wrong because the Trustee was not making arrearage payments anyway. [Id. ] See also supra Part I and Part II.A.1 (the Trustee's Notice indicated no arrearage claim existed because the collateral was surrendered). The Modification Motion and Modification Order suggest Chase wanted a comfort order or simply made a mistake. The Modification Motion and Modification Order indicate the plan remains feasible and the Debtor must take affirmative action for any plan amendment. [ECF Nos. 37 and 38.] The Debtor had no reason to object to entry of the Modification Order or seek a modification because there was no effect on her confirmed plan. The Loan Modification Agreement also suggests Chase no longer looked to the Debtor for repayment of the underlying obligation. Robert is the only Borrower listed and nothing else in the agreement indicates the Debtor has continuing liability for the debt. This also calls into doubt Chase's argument that its claim was not treated because it could not file a deficiency claim. It never expected to have one. Regardless, Section II.C. of the Local Form Plan does not promise a creditor a deficiency claim. It recognizes a secured creditor may, but is not required to, participate in payments to unsecured creditors based on a deficiency claim. Also, the language exists to relieve the Trustee from the obligation to pay the claim until a deficiency amount is determined. D. The Holding in Spata Does Not Apply. Chase cited In re Spata to support its argument that surrender under § 1325(a)(5)(C) in the Local Form Plan is not payment of the claim. Case No. 09-52154, ECF No. 122 (Bankr. E.D. Ky. Apr. 22, 2016). In Spata , the chapter 13 debtors moved for sanctions against Chase for violation of the discharge injunction. The debtors' confirmed plan required post-petition payments to Chase outside the plan and payment of arrearages by the Trustee through the plan. The debtors were unable to make the payments and subsequently modified the plan to surrender the collateral. After surrender and discharge, Chase pursued collection of the discharged debt. Id. at 1-3. The debtors argued the post-discharge communications violated the discharge injunction because the residence was surrendered to Chase "in full satisfaction of the debt." Id. at 4. The issue in Spata was the impact of surrender as used in a post-confirmation modification, not under § 1325(a)(5)(C). The ruling was limited to the debtors' narrow argument that the modified plan provisions provided for full satisfaction of Chase's claim: "The court is not called upon to interpret 'surrender' as that term is used in the bankruptcy code; but rather, how it is used in the Debtors' modified plan. In this modified plan, 'surrender' does not mean payment." Id. Unlike in Spata , the question here is not whether the plan provides for payment of a specific claim. The issue is whether the claim was provided for by the plan and the Debtor's personal liability discharged. 11 U.S.C. § 1328(a). Chase reads too much into the Spata decision. The limited ruling in Spata is not relevant to this case. E. Chase's Refusal to Correct Its Incorrect Reporting of the Discharged Debt Violated the Discharge Injunction. A discharge "operates as an injunction against the commencement or continuation of any action, the employment of process or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived." 11 U.S.C. § 524(a)(2). The Debtor alleges that Chase violated § 524(a)(2) by "incorrectly reporting its alleged debt against her under the Note, Mortgage and Modification Agreement" to credit reporting agencies. [ECF No. 52 at 5-6.] She attached copies of credit reports as evidence of that inaccurate reporting. [Id. , Exhs. 2,4.] The Debtor also alleges that she spoke to representatives of Chase and Chase "did nothing to correct the inaccurate information that it reported..." [Id. at 6.] Chase does not dispute the factual allegations made by the Debtor, so they are accepted as true. These undisputed allegations and exhibits to the Motion are enough to confirm Chase violated the discharge injunction. The review herein shows Chase knew the plan provided for its claim and the Debtor received her discharge. In re Joseph , 584 B.R. 696, 702 (Bankr. E.D. Ky. 2018). Chase does not dispute the Debtor's allegations that its reporting to the credit agencies was inaccurate and it refused to correct it when asked. Chase's only attempt at a defense is the argument the debt was not discharged. This argument was decisively rejected in the preceding analysis. See Part II.A., supra .
4340369-16342	MEMORANDUM ThermoLife International, LLC (Ther-moLife) appeals from an adverse judgment in its suit against Gaspari Nutrition Inc. (GNI), a competitor in the dietary supplement market. As relevant here, Ther-moLife sued GNI for six counts of false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), and unfair competition under Arizona common law. Ther-moLife alleges that from 2005 to 2010 GNI falsely advertised its testosterone boosters as “safe,” “natural,” “legal” and compliant with the Food, Drug & Cosmetic Act, (FDCA), as amended by the Dietary Supplement Health Education Act (DSHEA). The district court excluded four of Ther-moLife’s experts as unreliable; granted summary judgment because the FDCA precluded or preempted all but one of ThermoLife’s claims and ThermoLife could not establish the elements of falsity, materiality and injury; and denied ThermoL-ife’s requests for discovery sanctions and Rule 59(e) relief. We have jurisdiction under 28 U.S.C. § 1291, and we vacate the judgment and remand for further proceedings on all six of the Lanham Act claims and the unfair competition claim. I. FDCA preclusion and preemption We review de novo the district court’s grant of summary judgment based on its interpretation of the FDCA, see PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 923 (9th Cir.2010), and hold the FDCA neither precludes ThermoLife’s Lanham Act claims nor preempts its unfair competition claim. A. In deciding whether the FDCA precludes ThermoLife’s claims, the district court did not have the benefit of POM Wonderful LLC v. Coca-Cola Co., — U.S. —, 134 S.Ct. 2228, 189 L.Ed.2d 141 (2014), which squarely controls the issue. POM Wonderful established that the FDCA generally does not preclude Lanham Act claims for false labeling of food. Id. at 2241. Both of the Court’s rationales applies to ThermoLife’s claims: neither the FDCA nor the Lanham Act expressly bars ThermoLife’s claims, id. at 2237; and whereas the FDCA protects public health by relying on the FDA’s expertise, Lan-ham Act claims like Th'ermoLife’s protect commercial interests by relying on the market expertise of competitors, id. at 2238-39. Indeed, POM Wonderful expressly rejected most of GNI’s arguments on preclusion. GNI contends POM Wonderful is distinguishable because ThermoLife’s claims “require litigation of the alleged underlying FDCA violation ... where the FDA has not itself concluded that there was such a violation.” PhotoMedex, 601 F.3d at 924. But ThermoLife’s claims that GNI falsely advertised its products as “safe” and “natural” require no interpretation of the FDCA; and, as we explain below, ThermoLife need not demonstrate a FDCA violation to prevail on its claims that GNI falsely advertised its products as “legal”- or “DSHEA-compliant.” Whatever the precedential value of the PhotdMedex rule after POM Wonderful — an issue we do not decide — that rule would not bar ThermoLife’s claims. Accordingly, the FDCA does not preclude ThermoLife’s Lanham Act claims. B. The unfair competition claim also is not preempted. Although the FDCA expressly preempts state-law requirements that conflict with certain FDCA provisions, see 21 U.S.C. § 343-1, those provisions do not include § 343(a), which governs the misbranding of food through false or misleading labeling. Nor does the FDCA’s bar against private enforcement impliedly preempt the unfair competition claim. There is a general “presumption against pre-emption,” Wyeth v. Levine, 555 U.S. 555, 565 n. 3, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009), and the FDCA does not impliedly preempt claims where, as here, “the state-law duty ‘parallels’ the federal-law duty,” Stengel v. Medtronic Inc., 704 F.3d 1224, 1231 (9th Cir.2013) (en banc). The district court’s ruling that ThermoLife abandoned its unfair competition claim was clearly erroneous. At summary judgment, ThermoLife responded to each of GNI’s arguments by contending the unfair competition claim was not preempted, the elements of that claim (and the false advertising claims) were established and the claim was timely. II. Exclusion of Expert Opinion Evidence Reviewing for an abuse of discretion, see Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 596-97 (9th Cir.1996), we hold the district court improperly excluded Dr. Sox’s and Berger’s opinion evidence but properly excluded Hornbuckle’s and Epperson’s opinion evidence. A. The district court erred in excluding Dr. Sox’s opinion on the safety of GNI’s products. Each of the district court’s rationales essentially faulted Dr. Sox for not opining on whether GNI’s products were, in fact, safe.' But that reasoning “applied too high a relevancy bar.” Messick v. Novartis Pharm. Corp., 747 F.3d 1193, 1197 (9th Cir.2014). Dr. Sox’s opinion needed only to “logically advance[]” the issue, id. at 1196 (quoting Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995)), which it did by opining the dietary supplement industry would not have deemed GNI’s products “safe.” Contrary to the district court’s conclusions, moreover, Dr. Sox did provide a standard for determining what is “safe” — i.e., the industry standard — and his presumption that GNI’s ingredients were not safe was sufficiently valid in light of the industry’s strict reliance on establishing safety through certain procedures GNI had not used. B. The district court also erred in excluding Berger’s survey evidence on materiality. “[S]urvey evidence should be admitted ‘as long as [it is] conducted according to accepted principles and [is] relevant.” Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1037 (9th Cir.2010) (second and third alterations in original) (quoting Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir.1997)). By asking consumers of testosterone boosters whether they would have continued using GNI’s products (or switched to another testosterone booster) after learning GNI’s advertisements were false, Berger’s survey was “probative on whether the advertisements influenced consumers’ purchasing decisions.” Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 (9th Cir.1997). Although the district court faulted the survey’s biased questions and unrepresentative sample, neither defect was so serious as to preclude the survey’s admissibility. See Fortune Dynamic, 618 F.3d at 1037-38 (holding that a survey with “highly suggestive” questions was admissible); Southland Sod Farms, 108 F.3d at 1143 (holding that objections as to “leading questions” and an unrepresentative sample “go only to the weight, and not the admissibility, of the survey”). Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477 (5th Cir.2004), is distinguishable. Berger’s survey sample did not “severely limit[ ] the probative value of the survey’s results” by omitting a “large proportion” of the class of potential consumers, but included both consumers of GNI’s products and consumers of other testosterone boosters. Id. at 487-88. Nor was the, survey unreliable simply because it was not validated. Berger reasonably explained why the survey could not be validated and concluded it was nevertheless a “good survey” based on respondents’ “consistent, across-the-board answers.” GNI also asserts Berger’s conclusions were not based on sufficient facts or data, but none of his conclusions involved “too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). We therefore conclude the district court improperly excluded Berger’s opinion and survey evidence. C. The district court did not abuse its discretion in excluding Horn-buckle’s opinion on injury as too subjective to be reliable. A trial court has broad discretion to decide “how to determine reliability.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Although the reliability of a non-expert opinion can “depend[ ] heavily on the knowledge and experience of the expert,” United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir.2000), the district court was not required to base Hornbuekle’s reliability on his knowledge and experience. Because Hornbuckle used a novel and wholly subjective methodology, the district court could exercise its discretion to exclude his opinion evidence. D. The district court did not err in excluding Epperson’s opinion on damages. Epperson’s model for calculating actual damages relied on Hornbuckle’s report to establish the market share ThermoLife could have captured absent GNI’s allegedly false advertising. Given the exclusion of that report, Epperson’s model required a substitute estimate of Ther-moLife’s market share. Yet ThermoLife points to no evidence in the record from which a reasonable jury could conclude a specific percentage of customers would have purchased ThermoLife’s testosterone boosters. Because a jury would be unable to supply this essential input, Epperson’s model of actual damages was not “based on sufficient facts or data” and would not have been helpful to the jury. Fed. R.Evid. 702. Epperson’s disgorgement calculations likewise were unreliable because they included sales revenue for five years before the first allegedly false statement. Although Epperson could assume the issue of causation, his assumption still had to be “based on sufficient facts or data,” id., and there is no evidence that GNI profited from 2000 to'2004 from false advertising that commenced in 2005. Epperson’s assumption, which was never explained, relied on “simply too great an analytical gap between the data and the opinion proffered” for the disgorgement calculations to be reliable. Joiner, 522 U.S. at 146, 118 S.Ct. 512. III. Falsity, materiality and injury elements of the Lanham Act claims We review de novo the district court’s grant of summary judgment on the Lan-ham Act claims—including the determination that ThermoLife failed to establish injury, see Southland Sod Farms, 108 F.3d at 1145-46—and ask whether the evidence, when viewed in the light most favorable to ThermoLife, establishes a triable issue of material fact. See id. at 1138. We hold there is a triable issue of falsity, materiality and injury on all six Lanham Act claims. A. The district court erroneously concluded there is no triable issue of falsity for each type of GNI’s advertisements. 1. Counts 1, 2 and 5 involve advertisements that GNI’s products were “legal” or “DSHEA-compliant.” The district court was correct that such statements are generally inactionable opinion because they “purport to interpret the meaning of a statute or regulation.” Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 731 (9th Cir.1999). But there is a “well-established exception” that an opinion “by a speaker who lacks a good faith belief in the truth of the-statement” is actionable. PhotoMedex, 601 F.3d at 931. Because every opinion “explicitly affirms ... that the speaker actually holds the stated belief,” a CEO’s statement about legal compliance “would falsely describe her own state of mind if she thought her company was breaking the law.” Omnicare, Inc. v. Laborers Dist. Council Const. Indus., — U.S. —, 135 S.Ct. 1318, 1326, 191 L.Ed.2d 253 (2015). Here, ThermoLife points to numerous emails indicating GNI was aware its products were not DSHEA-compliant. Therefore there is a triable issue of falsity on Counts 1, 2 and 5. 2. There is also a triable issue of falsity on Counts 4 and 6, concerning GNI’s statements that its products were “safe.” Because those statements do not. “purport to interpret the meaning of a statute or regulation,” they are statements of fact, not opinion. Coastal Abstract Serv., 173 F.3d at 731. GNI asserts its products were presumed safe until the FDA proved otherwise. But the statutory provision on which GNI relies, 21 U.S.C. § 342(f), neither mentions a presumption of safety nor establishes whether a dietary supplement is safe, but defines when a supplement is safe enough that it is not an “adulterated food.” On the merits, a reasonable jury could find GNI’s products were not safe based on the recall evidence and Dr. Sox’s report. 3. Finally, there is a triable issue of falsity on Count 3, concerning GNI’s statements that Novedex is “natural” and its ingredients are “naturally occurring and are found in natural foodstuffs.” These statements were not inactionable opinion. Because the statements were “capable of ... being reasonably interpreted as a statement of objective fact”— namely, that the ingredients were, taken from or could be found in nature—they were statements of fact, not opinion. Coastal Abstract Serv., 173 F.3d at 731. Based on Dr. Sox’s opinion evidence, a reasonable jury could conclude that the dietary ingredients in GNI’s products were not natural or naturally occurring and hence GNI’s statements in Count 3 were false. B. The district court erred with respect to materiality, as well. A statement is material if it is “likely to influence the purchasing decision.” Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 244 (9th Cir.1990). ThermoLife pointed to GNI’s survey results, Berger’s survey results and Internet message board posts, all of which indicated that the safety, legality and natural ingredients of GNI’s products were—to varying degrees—important factors in consumer purchasing decisions. This evidence establishes a triable issue of materiality. C. There is a triable issue on injury. “We have generally presumed commercial injury when defendant and plaintiff are direct competitors and defendant’s misrepresentation has a tendency to mislead consumers.” TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 826 (9th Cir.2011). This presumption is warranted even in false advertising eases because, when comp etitors vie for the same customers, “a misleading ad can upset their relative competitive positions” and thereby cause injury. Id. at 827. GNI contends this presumption is inconsistent with our observation that “actual evidence of some injury resulting from the deception is an essential element of the plaintiffs ease.” Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 210 (9th Cir.1989). But Harper House held only that a court cannot assume injury without any evidence of causality and consumer deception. See id. at 209-10. Consistent with that observation, Traffic-School.com permits a jury to infer injury based on evidence of direct competition (which provides a causal link) and a likelihood of consumer deception. See 653 F.3d at 826. GNI argues the presumption applies only in the context of standing, but the two standards—which are derived from the same statutory language—are one and the same. See id. (“The Lanham Act permits ‘any person’ to sue if he ‘believes that he .., is likely to be damaged.’ ” (alterations in original) (quoting 15 U.S.C. § 1125(a))); Southland Sod Farms, 108 F.3d at 1139 (“The elements of a Lanham Act § 43(a) false advertising claim are: ... the plaintiff has been or is likely to be injured as a result of the false statement_” (footnote omitted)). A reasonable jury could infer ThermoLife has established a presumption of commercial injury. GNI does not dispute it directly competed with ThermoLife in the market for testosterone booster products; and GNI’s literally false statements necessarily misled consumers. Because GNI has not attempted to rebut the presumption, ThermoLife has established a triable issue on injury. See TrafficSchool.com, 653 F.3d at 827. D. The district court decided only the issue of injury (“actual harm”), but not damages (“amount of harm”). Thus we decline to decide whether ThermoLife has presented sufficient evidence to establish entitlement to damages. IV. Discovery sanctions and Rule 59(e) relief We review for an abuse of discretion the district court’s denial of discovery sanctions, refusal to reopen discovery and denial of Rule 59(e) relief based on newly discovered evidence. See Panatronic USA v. AT & T Corp., 287 F.3d 840, 846 (9th Cir.2002) (request to reopen discovery); Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir.2003) (Rule 59(e) relief); Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985) (discovery sanctions). We hold that the district court properly exercised its discretion on each ruling.
10532449-15107	DUHÉ, Circuit Judge: Appellant, Bennie Green, d/b/a Eagle Consulting Firm, appeals from the district court’s grant of Appellees’ motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Appellant sued several state and private actors under 42 U.S.C. §§ 1981,1983, 1985(3), 1986 and the Sherman Antitrust Act, 15 U.S.C. § 1. We affirm. BACKGROUND Bennie Green, d/b/a Eagle Consulting Firm, is an insurance adjuster licensed by the state of • Texas. In August 1991, the Unauthorized Practice of Law Committee (UPLC), acting under the authority granted to it by Texas Government Code § 81.102(a), sued Green to prevent him from engaging in the unauthorized practice of law. After a hearing in August 1991, the state district court issued a temporary injunction against Green. On November 5, 1991, the state district court converted the temporary injunction to a permanent injunction. Because Green was not a party to the November 5 proceeding, the state district court vacated the permanent injunction and reinstated the temporary injunction. In response, Green filed this action against the UPLC; Mark Ticer, legal counsel for the UPLC; James Blume, chairman of the UPLC; State Farm Insurance Company; Travelers Insurance Company and Rodney D. Young Insurance Agency. In December 1992, the district court granted all defendants’ motions to dismiss under Rule 12(b)(6), but granted Green leave to amend his complaint. Green filed an amended complaint, but because he failed to correct the deficiencies of his original complaint, the district court again granted the defendants’ motions to dismiss. Green appeals. DISCUSSION I. Standard of Review We review a Rule 12(b)(6) dismissal de novo. We must accept all well-pleaded facts as true, and we review them in the light most favorable to the plaintiff. We may not look beyond the pleadings. A dismissal will not be affirmed if the allegations support relief on any possible theory. McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir.1992). II. Section 1981 Claims In his complaint, Appellant alleges that he entered into contracts with his clients to negotiate settlements of their insurance claims with State Farm. Appellant argues that State Farm refused, solely because of his race, to honor his client contracts in violation of 42 U.S.C. § 1981. To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination con-ceras one or more of the activities enumerated in the statute. See Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir.1993). The “enumerated activity” implicated in this ease is the right to “make and enforce contracts.” In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court explained what is meant by “make and enforce contracts”: “Section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts.” Id. at 176, 109 S.Ct. at 2372. The Court further elaborated that the making of contracts extended only to the formation of a contract and not to problems that may arise later. Id. The second protection regarding enforcement of contracts “prohibits discrimination that infects the legal process in ways that prevent one from enforcing contract rights, by reason of his or her race, and this is so whether this discrimination is attributed to a statute or simply to existing practices.” Id. at 177, 109 S.Ct. at 2373. Appellant has failed to allege facts in his complaint that place him in the ambit of protection under § 1981 as defined by the Supreme Court in Patterson. Appellant has not complained that State Farm refused to contract with him or that State Farm somehow impeded his right to enforce a contract in either the courts or nonjudicial avenues. All he alleges is that State Farm refused to honor a third-party contract he had with his clients. Thus, Appellant has failed to allege how State Farm could have discriminated against Appellant in the formation or enforcement of any contract. Accordingly, Appellant has presented no viable claim upon which relief can be granted under § 1981. III. Antitrust Claims Appellant asserts that the defendants violated § 1 of the Sherman Antitrust Act, 15 U.S.C. § l. Section 1 of the Sherman Antitrust Act forbids contracts, combinations, or conspiracies in restraint of trade or commerce. 15 U.S.C. § 1. To prevail on a § 1 Sherman Antitrust Act claim, Appellant must show that the defendants’ conspiracy produced some anti-competitive effect in the relevant market. See Kiepfer v. Better, 944 F.2d 1213, 1221 (5th Cir.1991). Appellant may not just show that defendants’ actions injured him but must also demonstrate that the defendants’ actions unreasonably restrained competition. Id. Appellant first alleges that Ticer conspired with the other defendants to cause Appellant’s clients to breach their contracts with Appellant so that they might enter into contracts for representation with Ticer and other members of the State Bar of Texas. Appellant also alleges that defendants in pursuit of a conspiracy forced him to cease doing business. Such allegations do not sufficiently state a claim under § 1 as they demonstrate no unreasonable restraint of competition in a relevant market. Appellant’s final antitrust allegation involves only the UPLC and Ticer. Appellant alleges that the UPLC and Ticer were part of a conspiracy to fix the price of representation in insurance negotiations and to preclude Appellant and other insurance adjusters from competing in interstate commerce. The only specific averment of a possible agreement between UPLC and Ticer involves the institution of the suit against Appellant for the unauthorized practice of law. The UPLC is a state agency, Krempp v. Dobbs, 775 F.2d 1319, 1321 n. 1 (5th Cir.1985), that is authorized to pursue actions against those allegedly engaged in the unauthorized practice of law. Texas Gov’t Code Ann. § 81.102(a) (West 1988). Ticer was the agency’s counsel in the action against Appellant. Accordingly, Ticer and the UPLC are immune from an antitrust suit under the state action doctrine. See Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943); Benton, Benton & Benton v. Louisiana Pub. Facilities Auth., 897 F.2d 198 (5th Cir.1990), cert., denied, 499 U.S. 975, 111 S.Ct. 1619, 113 L.Ed.2d 717 (1991). IV. Monetary Damages Under Section 1983 Green asserts claims for monetary damages under 42 U.S.C. § 1983 against all defendants. To state a cause of action under § 1983, Appellant must allege that some person, acting under state or territorial law, has deprived him of a federal right. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 387 (5th Cir.1985), cert. denied, 488 U.S. 848, 109 S.Ct. 129, 102 L.Ed.2d 102 (1988). A. UPLC, Blume and Ticer The Eleventh Amendment generally divests federal courts of jurisdiction to entertain suits directed against states. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 1871, 109 L.Ed.2d 264 (1990). That amendment may not be evaded by suing state employees in their official capacity because such an indirect pleading device remains in essence a claim upon the state treasury. Stem v. Abeam, 908 F.2d 1, 3 (5th Cir.1990), cert, denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991). State officials sued in their official capacity are not deemed “persons” subject to suit within the meaning of § 1983. Id. at 4. Accordingly, Appellant’s claims under § 1988 against the UPLC, a state agency, and Blume and Ticer in their official capacities, must be dismissed. B. Ticer Appellant alleges that Ticer caused a temporary restraining order to be issued under Texas Government Code § 81.102(a) in violation of his constitutional rights. Appellant also asserts that Ticer had the state district court issue a temporary injunction without giving him notice. Finally, Appellant alleges that Ticer used his position as legal counsel for the UPLC to attempt to interfere with Appellant’s business. In Imbler v. Pachtman, 424 U.S. 409, 96 5.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court held that prosecutors were absolutely immune from damages claims arising out of their activities. The Court reasoned that the need for absolute immunity arose from the “concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Id. at 423, 96 S.Ct. at 991. The Supreme Court, applying a functional approach to the scope of immunity, extended absolute immunity to agency officials in the administrative adjudication process. See Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Section 81.102(a), was “enacted in the interest of public welfare and safety for the purpose of prohibiting the practice of law by unqualified and unlicensed persons under the State’s police power.” Palmer v. Unauthorized Practice Comm. of State Bar, 438 S.W.2d 374 (Tex.Civ.App.1969). Section 81.104 of the Texas Code authorizes the UPLC to file suit to seek the elimination of the unauthorized practice of law. We are persuaded that the duties performed by Ticer are analogous to those of public prosecutors and agency officials in the administrative adjudication process. When Ticer prosecuted the UPLC’s action in state court, he was undeniably performing a public service, and accordingly, the Supreme Court’s reasoning for the necessity of absolute immunity is equally applicable to Ticer’s position. Thus, we hold that Ticer, as legal counsel for the UPLC, is entitled to the protection of absolute immunity. The claims against Ticer in his individual capacity must be dismissed. C. The Remaining Defendants The remaining defendants are not state actors. A private party may be held liable under § 1983 if he or she is a “willful participant in joint activity with the state or its agents.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1606, 26 L.Ed.2d 142 (1970). Appellant has failed to aver facts that suggest that an agreement existed among the state and private actors to deprive him of his constitutional rights. V. Section 1985 Claims A. All Defendants Appellant alleges a claim under 42 U.S.C. § 1985(3) against all defendants. To state a claim under § 1985(3), Appellant must allege that two or more persons conspired to directly, or indirectly, deprive him of the equal protection of the laws or equal privileges and immunities under the laws. Again, Appellant has failed to allege facts that suggest an agreement among the parties. The only connection among the parties is their participation in the state court proceedings. These facts are insufficient to establish an agreement to commit a deprivation of Appellant’s equal protection of the laws and equal privileges and immunities under the laws in violation of § 1985(3). B. State Farm Appellant’s § Í985 claim against State Farm arises from a different set of facts from his other federal claims. On January 30, 1991, Appellant was operating a motor vehicle in Dallas County, Texas when a vehicle driven by a person insured by State Farm struck him and several other vehicles. Appellant presented a claim for his damages to State Farm and was denied coverage. Appellant alleges that State Farm refused to honor his claim solely on the basis of race in violation of 42 U.S.C. § 1985(3). Appellant’s claim is asserted only against State Farm for denying his accident claim. Appellant has failed to plead an essential ingredient of a § 1985(3) claim — participation by two or more persons. Accordingly, we must dismiss Appellant’s claim against State Farm under § 1985(3). VI. Additional Claims Appellant’s remaining claims include a constitutional challenge to § 81.101 and a claim under 42 U.S.C. § 1986 against James Blume. Appellant argues that the district court failed to address these issues. Appellant’s only reference to these arguments is in his summary of the argument section. A party who inadequately briefs an issue is considered to have abandoned the claim. Marple v. Kurzweg, 902 F.2d 397, 399 n. 2 (5th Cir.1990). Accordingly, we need not address these issues. CONCLUSION For the foregoing reasons, we affirm the district court’s dismissal of Appellant’s claims under Rule 12(b)(6). AFFIRMED. . Appellant is African-American. . Section 1981 provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and properly as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. . Effective November 21, 1991, § 1981 was amended, and that amendment statutorily overruled Patterson. The Supreme Court held in Rivers v. Roadway Express, Inc., - U.S. -, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994), that the Civil Rights Act of 1991, § 101 did not apply retroactively to conduct that occurred prior to its enactment. Although Appellant does not allege a specific date of the alleged conduct by State Farm, it had to occur after February 11, 1991, the day Appellant received his state license, and prior to August 8, 1991, the day the UPLC obtained a temporary restraining order against Appellant. Accordingly, we apply Patterson, the law in force at the time of the alleged wrongful conduct. . In his original complaint, Appellant failed to specify which section of Title 15 the defendants violated. In his First Amended Complaint, he places all allegations regarding antitrust violations under the heading "ANTITRUST 15 U.S.C. § 1.” . The First Amended Complaint actually states that "Defendant” conspired to force Appellant to cease doing business. We do not know to which defendant Appellant refers. . We will read, however, the complaint liberally and assume that Appellant refers to all defendants. . Section 81.102(a) provides: Except as provided by Subsection (b), a person may not practice law in this state unless the person is a member of the state bar. . That Ticer is a private practice attorney appointed to prosecute this case is irrelevant to our analysis. See, e.g., Hollowell v. Gravett, 703 F.Supp. 761 (E.D.Ark.1988) (holding that a private practice attorney retained to prosecute civil service disciplinary proceeding was entitled to absolute prosecutorial immunity); Voytko v. Ramada Inn of Atlantic City, 445 F.Supp. 315 (D.N.J.1978) (private practice attorney appointed to prosecute a case is entitled to absolute immunity).
12147728-9570	Per Curiam. Corey Lea (“Lea”) appeals from the decision of the United States Court of Federal Claims (the “Claims Court”) dismissing his complaint for lack of jurisdiction and denying his motion for reconsideration. See Lea v. United States, 126 Fed.Cl. 203 (2016) (“Order”); Lea v. United States, No. 15-292C, 2016 WL 2854267 (Fed. Cl. May 10, 2016). Because the Claims Court did not err in dismissing the complaint, we affirm. Background Lea was a farmer in Kentucky. Appellant’s Informal Br. 1. Acting through his company, Corey Lea, Inc., he applied for a loan from Farmers National Bank, guaranteed by the Farm Service Agency of the United States Department of Agriculture. Id. at 1. The loan guarantee agreement lists the borrower’s name as Corey Lea, Inc. and is signed by a Farm Service Agency official. Appellee’s App. 58. Farmers National Bank held the first mortgage, and the Farm Service Agency held the second mortgage. After Lea defaulted by failing to make payments, the bank foreclosed on the farm property. Appellant’s Informal Br. 2. Lea first filed multiple complaints against the government and Farmers National Bank in the United States District Court for the Western District of Kentucky, alleging discrimination and seeking an injunction against the foreclosure. The district court dismissed the claims in favor of the defendants, and on appeal from one of the dismissals, this court issued an order holding that we lacked jurisdiction and transferring that appeal to the United States Court of Appeals for the Sixth Circuit. Lea v. Dep’t of Agric., 562 Fed.Appx. 969 (Fed. Cir. 2014). Lea next filed a complaint against the government in the Claims Court in January 2014, alleging fraud, breach of contract, conspiracy to commit fraud and breach of contract, and tortious interference. The Claims Court dismissed his appeal for lack of subject matter jurisdiction, finding that.it lacked jurisdiction (1) over any claims against defendants other than the United States, (2) to grant any requested injunctive or declaratory relief, and (3) to hear his tort claims. Lea v. United States, No. 14-44C, 2014 WL 2101367, at 2 (Fed. Cl. May 19, 2014) (Lea I). The Claims Court also dismissed his claims for breach of contract for failure to state a claim because Lea failed to show that he was either a party or a third-party beneficiary to the contracts involving the government. Id. at 3. Lea appealed from that decision to this court, and we vacated and remanded the dismissal of his contract claims, but affirmed the dismissal of all other claims. See Lea v. United States, 592 Fed.Appx. 930 (Fed. Cir. 2014) (Lea II). We held that Lea lacked standing unless he were a third-party beneficiary, and we vacated and remanded for the Claims Court to determine whether to grant discovery on that issue. Id. at 933-34. However, before our opinion issued, Lea filed another complaint against the government in the Claims Court, again asserting the breach of contract claims, along with various claims of constitutional violations such as takings. See Lea v. United States, 120 Fed.Cl. 440, 443 (2015) (Lea III); Order, 126 Fed.Cl. at 209-10 (summarizing the procedural posture of Lea III). Because Lea was pursuing the same breach of contract claims in Lea I on remand, the contract claims in Lea III were dismissed as duplicative and the noncontractual claims were dismissed for lack of jurisdiction. Shortly afterwards, Lea filed another complaint against the government in the Claims Court in March 2015, which became the instant case (.Lea IV), and he voluntarily dismissed Lea I without prejudice. Order, 126 Fed.Cl. at 209. In this complaint, he alleged, inter alia, a taking, unjust enrichment, breach of an implied-in-fact contract by violating federal foreclosure regulations, breach of the loan guarantee agreement, and breach of the second mortgage agreement. Id. at 209-10. The Claims Court observed that Lea had filed at least eleven separate actions in federal courts based on the same set of facts. Id. at 207. The Claims Court first found that Lea failed to cure the jurisdictional defects that led to the dismissal of the same claims of a taking, unjust enrichment, and breach of an implied-in-fact contract in Lea III, and thus was precluded from reasserting those claims. Order, 126 Fed.Cl. at 214-15. The court then analyzed the remaining breach of contract claims. Id. at 215-18. The court noted that the borrower identified in the loan guarantee agreement and the mortgagor identified in the second mortgage agreement were both the corporate entity, not the individual. The court concluded that Corey Lea, Inc. was the only entity eligible to pursue contractual claims against the United States based on third-party beneficiary status. Id. at 217. Because a corporation must be represented by an attorney, the court dismissed the remaining contract claims. Id. at 217-18. Lea moved for reconsideration, which was denied by the Claims Court. Lea timely appealed to this court from the Claims Court’s decisions. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). ■ DISCUSSION We review the Claims Court’s dismissal for lack of jurisdiction de novo. FloorPro, Inc. v. United States, 680 F.3d 1377, 1380 (Fed. Cir. 2012). The Tucker Act provides the Claims Court with jurisdiction to “render judgment upon any claim against the United States founded ... upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). However, in contract cases “[t]he government consents to be sued only-by those with whom it has privity of contract.” Erickson Air Crane Co. of Wash. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984); see also id. (holding that subcontractors lack privity with the government and thus lack standing to bring a direct suit for breach of contract against the government). Lea argues that the Claims Court did not consider that Corey Lea, Inc. is a dissolved corporation with Lea as a sole shareholder winding up its affairs. Lea asserts that the court also incorrectly cited case law applying Texas law rather than Kentucky law with regard to a corporation’s ability to continue litigation after it has been dissolved. Lea also insists that the government waived the argument of standing to sue on behalf of the corporation. Lea further asserts that as a debtor listed on the first mortgage, he has standing as an individual to sue for breach of contract. Moreover, Lea contends, the courts in Lea I and Lea II found that he had standing, and therefore under the law of the case doctrine and the mandate rule, the Claims Court erred in finding that it lacked jurisdiction over his contract claims. Lea also disputes that collateral estoppel applies, particularly as to the takings claim, which he denies was previously addressed in Lea III. The government responds that the Claims Court considered all of the facts alleged in the complaint and acknowledged that Lea was winding up Corey Lea, Inc.’s affairs. However, the government maintains, Lea was not a party to the contracts with the government, and any injury to him was not separate and distinct from the corporation’s injury. The government asserts that Lea’s claims were therefore derivative of the corporation’s, and emphasizes that shareholder-derivative actions require counsel. Additionally, the government responds, the court may sua sponte challenge its own subject matter jurisdiction at any time, whether the defendant raises the issue or not. As for the other claims, the government contends that the court correctly applied collateral estoppel because the claims were “almost verbatim” identical to the claims in Lea III that were dismissed for lack of jurisdiction and Lea failed to cure the jurisdictional defects. We agree with the government that the Claims Court did not err in dismissing Lea’s complaint for lack of jurisdiction. We understand Lea’s desire to pursue claims relating to the company that he was the sole shareholder of and that bears his name. Lea’s role in managing the affairs of the dissolved corporation, however, is insufficient to vest the Claims Court with jurisdiction to adjudicate his claims. Lea focuses on the fact that Corey Lea, Inc. has been dissolved and that he is the sole shareholder winding up the affairs of the corporation. Appellant’s Informal Br. 5-9. Although Kentucky law provides that dissolution of a corporation does not bar or exempt the corporation from litigation in its own name, the law does not create privity between Lea and the government merely because of such dissolution, such that he as an individual may sue for breach of contract. As Lea is not an attorney, and a corporation may not be represented by a non-attorney, the Claims Court correctly concluded that he may not pursue the claims on behalf of Corey Lea, Inc. The only way Lea could have had standing to sue the government for breach of contract with regard to the loan guarantee agreement and the second mortgage agreement would have been, as we noted previously, if he were a third-party beneficiary to the contracts. See Lea II, 592 Fed.Appx. at 933. But Lea did not expressly argue that he was a third-party beneficiary until he made an oblique reference to such in his reply. Appellant’s Reply Br. 6. Nonetheless, the government addressed that point in its response brief by asserting that the Claims Court properly determined that Lea was not a party to the contracts and that Corey Lea, Inc. was the intended beneficiary instead. Appellee’s Br. 10. We will accordingly ■ address it briefly.
966785-5533	PER CURIAM. Ernest Turley appeals from the District Court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm. On June 11, 1970, two armed men robbed the Laddonia State Bank in Audrain County, Missouri, of approximately $13,000. On July 1; 1970, petitioner and one Haynes were indicted by a grand jury of the United States District Court for the Eastern District of Missouri and charged with robbing the bank in violation of 18 U.S.C. § 2113(a) and (d). Trial was had before a jury, which returned a verdict of not guilty on November 23, 1970. On January 4, 1971, the prosecuting attorney of Audrain County, Missouri, filed an information charging petitioner with robbery in the first degree by means of a dangerous and deadly weapon, in violation of Mo.Rev.Stat. §§ 560.120 and 560.135. Petitioner moved to dismiss, alleging that his prior federal acquittal barred subsequent prosecution arising out of the same act. The motion was overruled, and the Missouri Supreme Court denied petitioner’s application for a writ of prohibition. The Supreme Court denied certiorari. Turley v. Adams, 404 U.S. 1024, 92 S.Ct. 690, 30 L.Ed.2d 674 (1972). On March 30, 1972, a jury found petitioner guilty of robbery in the first degree, and he was sentenced to twenty years imprisonment. The conviction was affirmed on appeal. State v. Turley, 518 S.W.2d 207 (Mo.App.1974), cert. denied, 421 U.S. 966, 95 S.Ct. 1956, 44 L.Ed.2d 454 (1975). On February 18, 1976, petitioner filed a petition for a writ of habeas corpus. The District Court denied the petition. Turley v. Wyrick, 415 F.Supp. 87 (E.D.Mo.1976). Petitioner now timely appeals and alleges three related, but distinct, grounds for relief: (1) that the “dual sovereignty” doctrine permitting successive state and federal prosecutions for the same act has been “eroded” by subsequent decisions and should be discarded; (2) that the doctrine of collateral estoppel enunciated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), bars the state from re-litigating issues decided in petitioner’s favor at the prior federal trial; and (3) that the state is bound to observe the federal acquittal by virtue of the full faith and credit clause, U.S.Const., Art. IV, § 1, or by virtue of 28 U.S.C. § 1738. A. "Dual Sovereignty” It is a basic principle of federalism that successive prosecutions by the state and federal governments do not constitute double jeopardy. See Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684, rehearing denied, 360 U.S. 907, 79 S.Ct. 1283, 3 L.Ed.2d 1258 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed.2d 314 (1922). This principle is based on the concept of “dual sovereignty” — i. e., one act may constitute separate and distinct offenses against both the state and federal governments. Thus, a defendant who is prosecuted by both the state and federal governments is not twice put in jeopardy for the same offense. Petitioner contends that subsequent cases have eroded the dual sovereignty doctrine. He places particular reliance upon Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), which overruled Bartkus v. Illinois to the extent that Bartkus held that the Fifth Amendment guarantee against double jeopardy does not apply to the states. We find nothing in Benton v. Maryland, however, that casts a shadow on the validity of the dual sovereignty doctrine enunciated in Bartkus and Abbate. Petitioner’s reliance on Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); Murphy v. Waterfront Comm’n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); and Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), is similarly misplaced. None of those cases dealt with the double jeopardy issue in the context of successive federal-state prosecutions, and we find nothing in those cases which indicates that the Supreme Court no longer adheres to the dual sovereignty doctrine. In decisions subsequent to Waller, Elkins and Murphy, this Court has consistently upheld the validity of the dual sovereignty doctrine. Sappington v. United States, 523 F.2d 858, 860 (8th Cir. 1975); United States v. Johnson, 516 F.2d 209, 212 & n.3 (8th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 112, 46 L.Ed.2d 85 (1975); United States v. Delay, 500 F.2d 1360, 1362 (8th Cir. 1974); United States v. Synnes, 438 F.2d 764, 773 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). The other circuits are in agreement. See, e. g., Martin v. Rose, 481 F.2d 658, 659-60 (6th Cir.), cert. denied, 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121 (1973); United States v. Jackson, 470 F.2d 684, 689 (5th Cir. 1972), cert. denied, 412 U.S. 951, 93 S.Ct. 3019, 37 L.Ed.2d 1004 (1973); United States v. Crosson, 462 F.2d 96, 103 (9th Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 569, 34 L.Ed.2d 517 (1972); Goldsmith v. Cheney, 447 F.2d 624, 628 n.3 (10th Cir. 1971). We are apprised of no reason to depart from the sound logic of these cases. B. Collateral Estoppel Petitioner’s second contention is that the doctrine of collateral estoppel enunciated in Ashe v. Swenson, supra, barred the state’s prosecution in the instant case. In Ashe, the Court held: [ W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.
6056061-16596	KANNE, Circuit Judge. In 2004, Petitioner Raymond King was convicted by a jury of first-degree murder. He was sentenced by the state trial court to life imprisonment. The trial court judge that presided over King’s trial and sentencing had represented King over fifteen years prior as an assistant public defender. King appealed his conviction and sentence, which were affirmed on direct appeal and denied review by the Illinois Supreme Court. King then filed for post-conviction relief, which was dismissed by the trial court, affirmed on appeal, and denied review by the Illinois Supreme Court. Subsequently, King petitioned for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in federal district court, which was denied. On appeal, King argues that his trial and appellate counsel were ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because they did not seek substitution of the trial court judge. In doing so, he challenges the Illinois Appellate Court’s decision in People v. King, No. 03-08-0875, 404 Ill.App.3d 1182, 374 Ill.Dec. 1083, 996 N.E.2d 778, slip op. (Ill. App. Ct. June 21, 2010), which was the last state court to address his claims on the merits. We affirm. I. Background On September 7, 2002, Nina Buckner was found brutally murdered in her home. Her head had been smashed with a hammer, and she had suffered multiple cuts and broken bones. A blue backpack was found near Buckner’s home, containing her purse, her identification, and a bloody hammer and knife. Forensic testing confirmed that the blood on the hammer and knife belonged to Buckner, and the blood was also found on King’s clothes. Buckner’s neighbors reported seeing King near Buckner’s home with a blue backpack on the night of Buckner’s murder. When questioned by police, King gave multiple, very different, versions of his actions during the night of Buckner’s murder. King was eventually charged with the first-degree murder. A Trial and Direct Appeal King’s case was assigned to Judge Michael E. Brandt on September 17, 2002. Two days later, King first appeared before the trial court, represented by counsel. Prior to trial, . while represented by counsel, King engaged in several pro se actions. He wrote two pro se letters to the trial court, on January 29, 2003, and April 27, 2003, complaining about the defense counsel’s unavailability to discuss the case. Also, on October 2, 2003, King filed a pro se motion for change of venue, arguing that the trial judge was prejudiced because he had represented King in connection with a prior criminal conviction. This motion was not heard prior to trial. Finally, King wrote a pro se letter, dated November 24, 2003, to the “Chief Judge” stating that he had been repeatedly denied the chance to have “several motion [sic] filed and heard.” Following a jury trial, King was convicted of first-degree murder on June 1, 2004. Afterwards, King, represented by counsel, filed a motion for a new trial. Additionally, on June 29, 2004, King filed a pro se motion for a new trial, alleging ineffective assistance of trial counsel because of a failure to object to evidence involving a crime that King had been charged with but was then acquitted of at trial. On August 12, 2004, the trial court conducted King’s sentencing hearing. The trial court began by denying the motions for a new trial. The trial court then commented on King’s pro se motion for change of venue, noting that it was not timely, not supported by an affidavit, and not noticed for hearing. The trial court declared that it “hardly” recalled representing King in the 1986 case: [U]pon reviewing that motion [for change of venue], after reviewing the common law record in preparation for sentencing here, the Court went back to [the 1986 case] and reviewed it to determine if it refreshed my recollection on even representing him. It hardly did. It was quite some time ago. Like [present defense counsel], I was acting as public defender. It looks as if I was his third public defender in that particular case. It proceeded to trial. The defendant was acquitted of home invasion, found guilty of armed violence. He appealed his conviction. That was affirmed by the Appellate Court. (Sent. Tr. 14-15, Aug. 12, 2004.) Next, after reading the factual background from the appellate opinion affirming King’s conviction, the court observed: Similarities are chilling. Of course, the facts therein even independently if one did not delve into the particular facts of [the 1986 case] ... the Court has outlined, the prior convictions in this ease, the necessity to deter others, and the necessity to protect the public from Mr. King is clear. (Id. at 18.) Ultimately, the trial court sentenced King to life imprisonment. King appealed, represented by appointed counsel. On direct appeal, King did not raise a claim of ineffective assistance of trial counsel for not filing a motion to substitute the trial court. The Illinois Appellate Court affirmed his conviction and sentence. King filed a pro se petition for leave to appeal to the Illinois Supreme Court, which was denied. B. Post-Conviction Proceedings On March 28, 2007, King filed a pro se post-conviction petition, 725 ILCS 5/122-1 et seq., alleging that his trial counsel and appellate counsel provided ineffective assistance by failing to “litigate a claim” to substitute the trial judge. In response, the State moved to dismiss the post-conviction petition, and the trial court granted the State’s motion on October 24, 2008. ■ King appealed, represented by the state appellate defender’s office. On appeal, King renewed his argument that his trial and appellate counsel provided ineffective-assistance by failing to “litigate a claim” to substitute the trial judge. On June 2, 2010, the Illinois Appellate Court affirmed the trial court’s dismissal of King’s post-conviction petition in People v. King, No. 03-08-0875. The appellate court began by reciting Strickland’s two-pronged standard of performance and prejudice. Turning to the prejudice prong, the appellate court held that under Illinois law, to warrant substitution of a judge for cause, the defendant must demonstrate “that the judge assigned to his case harbors actual prejudice,” which requires establishing “animosity, hostility, ill will, or distrust towards this [particular] defendant.” People v. King, No. 03-08-0875, at 5 (alteration in original and internal quotation marks omitted). Then, the appellate court summarized King’s allegations — that during the trial judge’s previous representation of King, he had failed to call certain witnesses or raise certain objections, he had ignored King, and he did not have a good attorney/client relationship with King. Id. In conclusion, the appellate court held that King could not establish “animosity, hostility, ill will, or distrust” because his allegations were “merely conclusory and lack[ed] any factual basis.” Id. Afterwards, King filed a pro se petition for leave to appeal, again renewing his claim that trial and appellate counsel were ineffective for failing to pursue substitution of the trial judge. The Illinois Supreme Court denied review on September 13, 2010. C. Federal Habeas Proceedings On March 16, 2011, King petitioned the district court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the Northern District of Illinois. The case was then properly transferred to the Central District of Illinois. In his petition, King asserted numerous claims of ineffective assistance by his trial counsel, his appellate counsel, and his post-conviction trial counsel. ■On September 29, 2014, the district court denied King’s §2254 petition. The district court began by finding that King had procedurally defaulted all of his claims, except Claim 2, which alleged “that his trial counsel was ineffective because he failed to file a motion under Illinois law to substitute the trial judge for bias and his appellate counsel failed to make this argument on appeal.” (R. 23 at 11.) Next, the district court found that the Illinois Appellate Court’s decision in People v. King was not contrary to Supreme Court precedent because King “does not point to any other specific ruling nor does he allege that the Illinois courts overlooked any evidence of prejudice or misunderstood his arguments.” (Id. at 16-17.) Finally, the district court rejected King’s attempt to characterize his ineffective assistance claim as based on federal due process, finding that this claim was “procedurally defaulted.” (Id. at 17-19.) Accordingly, the district court certified only Claim 2 for appeal. King appealed. II. ANALYSIS We review de novo the district court’s denial of a habeas petition. Dansberry v. Pfister, 801 F.3d 863, 866 (7th Cir. 2015). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, a federal court may issue a writ- of habeas corpus only if the decision of the last state court to examine the merits of the petitioner’s claim: (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). This court’s review of a state-court decision under § 2254(d) is “highly deferential” under a standard that is “difficult to meet.” Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (internal quotation marks omitted); see also Makiel v. Butler, 782 F.3d 882, 896 (7th Cir. 2015). On appeal, King argues that the Illinois Appellate Court’s decision in People v. King was “contrary to or involved an unreasonable application of’ the Supreme Court’s decision in Strickland. Under Strickland, to show ineffective assistance, in violation of the Sixth Amendment, a defendant must prove (1) that his counsel’s performance “fell below an objective standard of reasonableness” and (2) that he suffered prejudice such that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 687-88, 694, 104 S.Ct. 2052. Moreover, the Supreme Court has held that, for a habeas petitioner advancing a claim of ineffective assistance that was decided on the merits in state court, “relief may be granted only if the state-court decision unreasonably applied the more general standard for ineffeetive-assistance-of-counsel claims established by Strickland,” and this is a “doubly deferential” standard of review. Knowles v. Mirzayance, 556 U.S. 111, 122-23, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). We begin with King’s claim of ineffective assistance for failing to seek substitution of the trial court under state law, which was addressed in People v. King, and then we turn to his ineffective assistance claim for failing to seek substitution of the trial court based on federal due process. A. Ineffective Assistance Claims based on State Law As an initial matter, King attempts to dispute the factual findings underlying the appellate court’s decision in People v. King, asserting that he and the trial court had a “poor attorney-client relationship.” (Appellant Br. 3, 13-14.) The appellate court had deemed these assertions “unsubstantiated,” and King does not present any additional evidence to support them. Therefore, we easily conclude that King does not provide “clear and convincing” evidence of an unreasonable determination of the facts to rebut the appellate court’s factual findings. Burt v. Titlow, — U.S. -, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013) (quoting § 2254(e)(1)). Nor can King show that the appellate court unreasonably applied “clearly established” federal law because the appellate court’s decision was based on a resolution of state law, not federal law. It is well-established that on habeas review, a federal court cannot disagree with a state court’s resolution of an issue of state law. See, e.g., Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). In Miller v. Zatecky, 820 F.3d 275, 277 (7th Cir. 2016), this court affirmed the denial of a § 2254 petition filed by a defendant convicted of child molestation who received a 120-year aggregate sentence in state court. In Miller, the defendant raised a collateral .challenge in state court that his direct appellate counsel was ineffective for failing to contest the length of his sentence. In response, the state appellate court held that the defendant could not demonstrate prejudice under Strickland because if the appellate counsel had raised this sentence-length challenge, the “chance of success was zero” under the state-law standard. Id. at 276. On habeas review, this court held that the state appellate court’s decision “was not based on federal law at all. ... It rests on a conclusion that, as a matter of state law, it would have been futile to contest the sentence’s length on appeal.” Id. at 277. And because “[a] federal court cannot disagree with a state court’s resolution of an issue of state law,” the Miller court affirmed the denial of the defendant’s § 2254 petition. Id. The same principle that governed Miller controls the present case. In People v. King, the appellate court held that King could not demonstrate prejudice under Strickland because if his trial or appellate counsel had litigated his “unsubstantiated allegations” under 725 ILCS 5/114 — 5(d), the challenge would have been unsuccessful under the Illinois substantive standard, which required that “the judge assigned to his case harbors actual prejudice” such that there was “animosity, hostility, ill will, or distrust towards this [specific] defendant.” No. 03-08-0875 at 5 (citing People v. Patterson, 192 Ill.2d 93, 249 Ill.Dec. 12, 735 N.E.2d 616, 638 (2000)). In other words, the appellate court’s decision “rests on a conclusion that, as a matter of state law, it would have been futile” for King’s trial or appellate counsel to raise such a claim. Miller, 820 F.3d at 277. And similar to Miller, we cannot disturb the appellate court’s decision because a “federal court cannot disagree with a state court’s resolution of an issue of state law” in the context of habeas review. Id. At best, King can contend that the appellate court misinterpreted or misapplied Illinois state law. However, this contention is meritless because this court has expressly held that a “claim that the state court misunderstood the substantive requirements of state law does not present a claim under § 2254. A federal court may not issue the writ on the basis of a perceived error of state law.” Bates v. McCaughtry, 934 F.2d 99, 102 (7th Cir. 1991) (internal quotation marks omitted). King also contends that his trial and appellate counsel were ineffective based on 725 ILCS 5/114-5(a), which grants the defendant the right to an automatic substitution of the judge if the motion is filed within 10 days after the case is filed. The appellate court never adjudicated this theory and therefore did not interpret state law at all. As such, we review this point de novo. See Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). King, however, still cannot prevail. Even if King’s counsel performed deficiently in failing to pursue automatic substitution under Section 5/114-5(a), nothing in this record shows that King was prejudiced by counsel’s inattention. King can show prejudice only if he demonstrates that the judge who heard his case was biased. In order to do that, he must overcome “a presumption of honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Nothing indicates that the trial court was "biased against King; to .the contrary, the record shows that the judge had no independent recollection of him one way or the other. Furthermore, the evidence against King was overwhelming. Hence, King can show no prejudice from counsel’s failure to file a motion under Section 5/114-5(a). Accordingly, King’s claim of ineffective assistance based on a failure to seek substitution of the trial court under state law is without merit. B. Ineffective Assistance Based on Federal Due Process Next, to the extent that King raises a claim of ineffective assistance by his trial and appellate counsel for failing to raise a challenge to the trial court based on federal due process grounds, it is procedurally barred.
1539779-3197	RICH, Circuit Judge. This appeal is from the judgment of the United States Court of International Trade, 19 Cust.B. & Dec. 30, 611 F.Supp. 967 (1985), that Sangamo Capacitor Division’s (Sangamo) silvered mica sections in frame sizes D-10 and D-19 are entitled to entry free of duty by virtue of the Generalized System of Preferences under Item A516.94 of the Tariff Schedules of the United States (TSUS) and that frame sizes D-15 and D-30 are likewise entitled to entry free of duty under Item A656.15. We affirm. The imported articles consist of sections of mica coated on opposite sides with silver in selected areas. The articles are produced in India by first placing raw mica blanks in an oven to remove moisture and then into a low temperature oven to keep them moisture-free. Silver is applied to one side of the dry mica by a silk-screening process and dried, and that process is repeated over the same area on the other side. After importation, the articles are made into dipped wire-lead capacitors by a number of manufacturing operations. The United States urges, and the Customs Service held, that the imported articles are classifiable under Item 685.80 TSUS as “Electrical Capacitors, fixed or variable,” a classification provision that imposes a duty of 10% ad valorem, or, in the alternative, that the silvered mica sections fit within that provision because they are unfinished capacitors within the meaning of General Interpretative Rule 10(h) of TSUS: (h) unless the context requires otherwise, a tariff description for an article covers such article, whether assembled or not assembled, and whether finished or not finished.... Court of International Trade The court considered the testimony of four witnesses, documents, and exhibits and concluded that the silvered mica sections are not sold to the trade in their imported condition, do not meet the Electronic Industrial Association Standards recognized by the industry, are neither designed to introduce, nor capable of introducing, in their imported condition, a known capacitance into an electrical circuit, and therefore are not capacitors. The court held that the articles are not unfinished capacitors after applying the factors set out in Daisy-Heddon, Div. Victor Comptometer Corp. v. United States, 600 F.2d 799, 66 CCPA 97 (Fed.Cir.1979). The relevant factors are: (1) Comparison of the number of omitted parts with the number of included parts; (2) comparison of the time and effort required to complete the article with the time and effort required to place it in its imported condition; (3) comparison of the cost of the included parts with that of the omitted parts; (4) the significance of the omitted parts to the overall functioning of the article; and (5) trade customs, i.e., does the trade recognize the importation as an unfinished article or as merely a part of that article. Particularly noting the large number of steps required to transform the imported article into a commercially acceptable capacitor, the court concluded that the amount of additional work necessary “clearly establishes the subject merchandise does not fall within the unfinished category provided for in Rule 10(h)....” OPINION
3253943-15212	HANSEN, Senior Circuit Judge. Arsenio Rodríguez-Ortiz (Rodríguez-Ortiz) and Leonardo Santana-Rodriguez (Santana-Rodriguez) were indicted by a grand jury in the District of Puerto Rico on charges of conspiracy to import five kilograms of cocaine and one kilogram of heroin, a violation of 21 U.S.C. §§ 952(a) & 963, and conspiracy to possess with the intent to distribute and distribute at least five kilograms of cocaine and one kilogram of heroin, a violation of 21 U.S.C. §§ 841(a)(1) & 846. On November 8, 2004, after eight days of trial, a jury convicted them on both counts. Both appellants appeal their convictions, challenging the sufficiency of the evidence. Individually, Santana-Rodriguez raises an allegation of juror bias, and Rodríguez-Ortiz challenges the district court’s decision to deny him safety-valve relief at sentencing. After careful review, we affirm. I. FACTS The facts are presented in a light most favorable to the jury’s verdict. United States v. Pinillos-Prieto, 419 F.3d 61, 64 (1st Cir.), cert. denied, — U.S. -, 126 S.Ct. 817, 163 L.Ed.2d 643 (2006). The Government began investigating an alleged drug operation in Puerto Rico in October 2001. Undercover Drug Enforcement Administration (DEA) Special Agent Angel Castro-Lugo (Castro-Lugo) arranged a meeting with a person named Baéz-Baéz (Baéz). Agent Castro-Lugo had received a tip that Baéz was selling large amounts of cocaine in the Las Pie-dras, Puerto Rico area. During Agent Castro-Lugo’s meeting with Baéz, Baéz called someone named “Mister” who would supply Agent Castro-Lugo with the cocaine he was attempting to purchase. “Mister” was later determined to be Mar-cial Peguero-Mercedes (Peguero), the leader of the drug ring. As the meeting ended, Baéz and Agent Castro-Lugo exchanged phone numbers. After the meeting, the DEA obtained court orders for pen registers and wiretaps for Baéz’s phone number and a number of other telephone numbers used by the drug ring. Agents then determined that the telephone number Baéz had called during the meeting with Agent Castro-Lugo was registered to the defendant, Santana-Rodriguez. While the DEA investigation continued, Santana-Rodriguez, an immigrant from the Dominican Republic, was asked by the Immigration and Naturalization Service (INS) to update his immigration file. In doing so, Santana-Rodriguez provided a business address, which was for a kiosk at the Luquillo beach area, as well as a telephone number. Several months later, Agent Castro-Lugo noticed a “for sale” sign on Kiosk No. 20 at Luquillo and recognized the phone number on the sign. The kiosk was the one that Santana-Rodriguez had listed with the INS as his business address. Agent Castro-Lugo, again acting undercover, set up a meeting with Santana-Rodriguez to discuss purchasing the kiosk. In the conversation with Santana-Rodriguez, Castro-Lugo told him that he wanted to use the kiosk to store drug shipments. Santana-Rodriguez told Castro-Lugo that he could introduce Castro-Lugo to someone who could help him out with that kind of business. Santana-Rodriguez also asked what he could get for helping the agent do so. Through Santana-Rodriguez, Castro-Lugo obtained the phone number for the ringleader, Peguero, and a meeting was arranged for November 15, 2002, at Santana-Rodriguez’s kiosk. The DEA listened to over 3,400 telephone conversations obtained through the wiretaps, and based upon those intercepts, agents conducted surveillance, and on April 23, 2003, successfully interdicted a shipment of ten kilograms of cocaine and three kilograms of heroin. This shipment had been arranged by Peguero and his associates and was intercepted mid-stream by the authorities. The evidence at trial showed that Santana-Rodriguez often obtained cellular phones and communications devices for the other coconspirators to use. When he became aware that a particular cell phone number had been compromised, Santana-Rodriguez would replace it with a new phone and number. The cell phone used by Peguero to arrange the April 23, 2003, interdicted shipment was listed as having Santana-Rodriguez as the subscriber, and the day after the shipment was seized, Santana-Rodriguez told Peguero he should no longer use that phone. Santana-Rodriguez also arranged for the November 15, 2002, meeting between Agent Castro-Lugo and Peguero, thinking that Agent Castro-Lugo intended to discuss drug smuggling and storage with Pe-guero and that Agent Castro-Lugo was interested in using Santana-Rodriguez’s kiosk for that purpose. Rodriguez-Ortiz was considered to be Peguero’s muscle man. DEA agents testified that they observed Rodriguez-Ortiz on two different occasions. The first was at the November 15, 2002, meeting between Castro-Lugo and Peguero at Kiosk 20. Rodriguez-Ortiz and another individual arrived at the meeting separately and conducted counter-surveillance. Rodriguez-Ortiz was later located inside the kiosk, playing pool and watching Peguero and Agent Castro-Lugo during the meeting. Later Rodriguez-Ortiz was observed near the van Agent Castro-Lugo drove to the meeting, writing down the license plate number of the vehicle. Through the telephone surveillance of the coconspirators, DEA agents learned of a money drop-off planned to take place on March 15, 2003, and involving Peguero, Rodriguez-Ortiz, and a woman named Elsa. At the appointed time, Rodriguez-Ortiz was observed as a passenger in the front seat of the minivan driven to the arranged drop-off location. When the van arrived at the prearranged location, a Texaco station located across the street from the Puerto Rico Police Department headquarters, agents observed a woman approach the driver’s side of the minivan and, consistent with the intercepted information, be passed a shopping bag. The van drove off and the woman left in a separate vehicle. The jury was free to determine, based on the contents of the intercepted conversation arranging the drop-off, that Peguero was the van’s driver and that the shopping bag contained the money. The next day Rodriguez-Ortiz traveled to the Dominican Republic, smuggling in $20,000 for Peguero. He called Peguero afterwards, bragging to him of his success. When Rodriguez-Ortiz was arrested, approximately $6,000, rolled up into three bundles and wrapped in aluminum foil, was seized from his home. The surveillance and drug shipment interception led to the indictment of Santana-Rodriguez, Rodriguez-Ortiz, and four others. The other four were Peguero and Raul Pérez-Nuñez, who both fled and remain fugitives, and Wilson Reyes-Moreno and Mercedes Figueroa, who both pleaded guilty prior to trial. II. Analysis A. Sufficiency of the Evidence We first address each defendant’s challenge to the sufficiency of the evidence to support the conspiracy convictions. “We review de novo, inquiring whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Washington, 434 F.3d 7, 15 (1st Cir.2006) (internal citations and marks omitted). “All reasonable evi-dentiary inferences are to be drawn in harmony with the [jury’s] verdict, and all issues of credibility are to be resolved in the light most favorable to the government.” Id. (internal marks omitted). To succeed at trial, the Government had to convince the jury beyond a reasonable doubt that: (1) a conspiracy existed, (2) the defendants had knowledge of the conspiracy, and (3) the defendants voluntarily participated in the conspiracy. United States v. Lizardo, 445 F.3d 73, 81 (1st Cir.2006). Evidence to prove these elements need not be direct, but can be circumstantial. See id. To support a conviction for conspiracy “each coconspirator need not know of or have contact with all other members, nor must they know all of the details of the conspiracy or participate in every act in furtherance of it.” United States v. Martinez-Medina, 279 F.3d 105, 113 (1st Cir.), cert. denied, 536 U.S. 932, 122 S.Ct. 2608, 153 L.Ed.2d 794 and 537 U.S. 921, 123 S.Ct. 311, 154 L.Ed.2d 210 (2002). We are satisfied that the evidence was sufficient to support both of the conspiracy convictions against Santana-Rodriguez. The evidence included the recorded telephone conversations, Santana-Rodriguez’s procurement of cellular telephones for use in the conspiracy, the fact that Santana-Rodriguez, knowing its illegal purpose, arranged the meeting between Agent Castro-Lugo and Peguero (which took place at Santana-Rodriguez’s kiosk), as well as the testimony of the two DEA agents describing the factual events which occurred. Looking at all of the evidence, the jury could reasonably conclude that Santana-Rodriguez was aware of the drug conspiracy and chose to participate in it voluntarily. While Santana-Rodriguez offered contradictory testimony and advanced alternative reasons as to why his name may have been associated with some of the cell phones, such as testimony that Santana-Rodriguez was the victim of identity theft, it is “the jury’s duty ... to assess credibility, and it may accept or reject, in whole or in part, any testimony.” United States v. Nishnianidze, 342 F.3d 6, 14 (1st Cir.2003), cert. denied, 540 U.S. 1132, 124 S.Ct. 1107, 157 L.Ed.2d 936 (2004). Taken in the light most favorable to the verdict, the evidence of Santana-Rodriguez’s participation in the drug ring was more than sufficient to support his conspiracy convictions. With respect to Rodriguez-Ortiz’s sufficiency of the evidence argument, we well recognize that mere presence at the scene of conspiracy activities or simple association with conspirators is not enough, standing alone, to establish participation in a conspiracy. United States v. Pérez-González, 445 F.3d 39, 49 (1st Cir.2006). However, the Government’s evidence was sufficient for a jury to find reasonably that Rodriguez-Ortiz was more than a mere bystander who found himself in the presence of drug conspirators and in the middle of two drug distribution conspiracies. The evidence showed that he transported money to the Dominican Republic and that he called the ringleader, Peguero, informing him of it, and that he provided counter-surveillance and protection for Peguero at the kiosk meeting. Together with the bundled money that was recovered from Rodriguez-Ortiz’s residence, a jury could reasonably have found beyond a reasonable doubt that Rodriguez-Ortiz was an active participant in the conspiracies, acting as a bodyguard and money runner for the leader. Accordingly, we reject the sufficiency of the evidence challenges to the convictions of both Santana-Rodriguez and Rodriguez-Ortiz on each count. B. Juror Bias Santana-Rodriguez alleges that the district court erred in not dismissing Juror Number Nine or in not declaring a mistrial after allegations of juror bias were raised. A district court has wide discretion in deciding how to handle and how to respond to allegations of juror bias and misconduct that arise during a trial, and we review the district court’s decision under a deferential abuse of discretion standard. United States v. Mikutowicz, 365 F.3d 65, 74 (1st Cir.2004). Juror Nine sent at least two notes to the trial judge during the trial. Santana-Rodriguez alleges that the fact that other jurors saw him write these notes, even though they were not aware of the notes’ contents, was prejudicial. In addition, Santana-Rodriguez asserts that the dis trict court should have dismissed Juror Nine for bias. In the first note, Juror Nine told the district court he was concerned that he might be acquainted with someone whose name had been mentioned in a recording played at trial. The trial judge, counsel for both appellants, and Government counsel met with the juror, and it was determined that Juror Nine was not acquainted with the person whose name was involved in the present case. No objections or motions were made, and the trial resumed. The second note sent by Juror Nine stated that he had received a death threat regarding his work on the case. An anonymous message had been left with the juror’s wife that he should not go to court again or he would be killed. The juror and counsel for all parties met with the trial judge to discuss the threat. Upon examination by the judge, the juror assured the court that he had not told any other juror of the threat and that the threat in no way affected his view of the evidence or made him biased against the defendants. The court also noted that the juror’s calm and collected demeanor supported and was consistent with his statements. The juror did not ask to be excused but had notified the district court, and properly so, of the threat in order to make it aware of the situation. After admonishing the juror not to speak of the threat to any other juror, the district court overruled the defense motions to dismiss Juror Nine, finding that there was no basis for dismissal, and the trial continued. We find no abuse of the court’s discretion in its decision not to dismiss Juror Nine. The court immediately addressed the situation, the juror assured the court that he was not biased, the juror appeared calm and collected, and no other member of the jury was made aware of the threat. Because the other jurors were unaware of the content of the note to the court, the risk of prejudice was nil. Based on the record before us, the district court did not abuse its discretion. Santana-Rodriguez’s allegation that the district court failed to investigate an instance of alleged misconduct by Juror Nine for supposedly driving by Santana-Rodriguez’s home also lacks merit. If a claim of juror misconduct is raised, the court must first determine if it is a color-able allegation. Id. If the claim is color-able, then further investigation by the court is warranted in order to determine any possible juror taint or prejudice. Id. “However, misconduct allegations that ‘are frivolous ... do not trigger any duty of inquiry and do not require that a hearing be held.’ ” Id. (quoting Neron v. Tierney, 841 F.2d 1197, 1202 n. 6 (1st Cir.1988)). The district court’s determination that this claim of misconduct was too weak to warrant even an investigation was not an abuse of discretion. The only evidence presented was a representation by counsel that Santana-Rodriguez’s wife had stated that she had seen a van with dark-tinted windows with a juror in it, allegedly Juror Nine, driving by in front of Santana-Rodriguez’s house. Santana-Rodriguez provided no sworn affidavits or other accompanying materials; only a bare allegation by counsel was presented to the district court, with no other information to support it; not even a sworn statement from the defendant’s wife. The district court’s order noted that Santana-Rodriguez had failed “to provide any comprehensible basis for why he believe[d] that this vehicle even contained a juror.” “The burden of showing a colorable claim rests with the party raising the issue.” Mikutowicz, 365 F.3d at 75. Because Santana-Rodriguez has not met this burden, we find no abuse of discretion in the trial court’s decision to deny the motions for mistrial and to dismiss Juror Nine. C. Safety-Valve Relief
10522655-27494	CYR, Circuit Judge. The central question in this case — whether the $500 per-package limit on ocean carriage liability imposed by the Carriage of Goods by Sea Act (COGSA), 46 U.S.C.App. § 1304(5), is applicable to an oil drilling rig — requires the court to consider for the first time the COGSA-related “fair opportunity” doctrine. I BACKGROUND Puerto Rico Electric Power Authority (PREPA) contracted with Henley Drilling Company (Henley) to conduct petroleum drilling operations in Puerto Rico. Marine Transportation Serviees-Sea Barge Group, Inc. (Sea Barge), an ocean carrier, agreed to transport Henley’s drilling equipment from Houston to Puerto Rico, and return. PREPA obtained marine cargo insurance on the Henley drilling rig through William H. McGee & Co. (McGee) and CNA Casualty of Puerto Rico (CNA). Following an uneventful southbound voyage, Sea Barge retained a stevedoring contractor, Luis A. Ayala Colón Suers., Inc. (Ayacol), to stow the drilling rig aboard the barge for the return trip to Houston. When the barge arrived in Houston, however, Henley’s huge drilling rig, valued at $629,000, was nowhere to be found. Henley sued Sea Barge, Ayacol, McGee, CNA and PREPA in the United States District Court for the District of Puerto Rico. Under the terms of their settlement agreement, PREPA, McGee and CNA were subro-gated to the rights of Henley, leaving Sea Barge and Ayacol as the only defendants. In March 1992, Sea Barge and Ayacol moved for partial summary judgment, contending that their liability, if any, could not exceed the $500 per-paekage/CFU limit imposed by COGSA. Contemporaneously, Ayacol and Sea Barge moved for summary judgment on the further ground that the stowing of the drilling rig aboard the barge for the return trip to Houston was improperly supervised by the marine surveyor retained by PREPA, thereby entitling Ayacol and Sea Barge to exoneration from liability. A magistrate judge recommended partial summary judgment in favor of Sea Barge and Ayacol, based on a finding that the drilling rig constituted a “package” within the meaning of COGSA § 4(5), for which the maximum liability of the carrier is $500. The magistrate judge did not rule on the summary judgment claim for exoneration. McGee, CNA and PREPA objected to the magistrate-judge’s report and recommendation, which the district judge subsequently adopted over their objection. McGee, CNA and PREPA unsuccessfully moved for reconsideration by the district judge. CNA and McGee [collectively: “McGee”] appealed. Ayacol and Sea Barge cross-appealed, challenging the district court order adopting the magistrate-judge’s report and recommendation insofar as it failed to grant Ayacol and Sea Barge exoneration from all liability and included no attorney fee award against McGee. II DISCUSSION A. The McGee Appeal (No. 93-1543) 1. Summary Judgment Standard We review a grant of summary judgment de novo. Commercial Union Ins. Co. v. Walbrook Ins. Co., 7 F.3d 1047, 1050 (1st Cir.1993). Summary judgment is appropriate where the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 874-75 (1st Cir.1993). 2. The COGSA Liability Limitation Section 1304(5) of COGSA, entitled “Rights and immunities of carrier and ship,” provides in relevant part: Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package ... or in case of goods not shipped in packages, per customary freight unit ... unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.... By agreement between the carrier, master, or agent of the carrier, and the shipper another maximum amount than that mentioned in this paragraph may be fixed ... [but] in no event shall the carrier be liable for more than the amount of damage actually sustained. 46 U.S.C.App. § 1304(5) (emphasis added). The courts generally have required the carrier to afford the shipper a “fair opportunity” to avoid the COGSA “paekage/CFU” liability limitation through adequate advance notice. See, e.g., Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 899 n. 3 (9th Cir.1989). As this court has not adopted the COGSA “fair opportunity” doctrine, see Granite State Ins. Co. v. M/V Caraibe, 825 F.Supp. 1113, 1118-24 (D.P.R.1993) (noting absence of First Circuit precedent on “fair opportunity” doctrine), we first examine the case law in other jurisdictions. All courts which have addressed the matter require the carrier to provide the shipper some notice of the COGSA “package/CFU” liability limitation, differing only as to the type of notice. See id. (examining circuit split as to level of notice required); see generally Michael F. Sturley, The Fair Opportunity Requirement Under COGSA Section U(5): A Case Study in the Misinterpretation of the Carriage of Goods by Sea Act (Part I), 19 J.Mar.L. & Com. 1, 13-17 (1988) (hereinafter, “Sturley, Part I”); Michael F. Sturley, The Fair Opportunity Requirement (Part II), 19 J.Mar.L. & Com. 157 (1988) (hereinafter, “Sturley, Part II”). The Ninth Circuit is thought to have the more demanding notice requirement, see 2A Ellen Flynn & Gina A. Raduazzo, Benedict on Admiralty § 166, at pp. 16-28 to 16-29 (Michael F. Sturley, contrib. ed. 1993) (hereinafter, 2A Benedict) (describing “strict” Ninth Circuit standard, citing cases), mandating that the carrier provide the shipper legible written notice of the COGSA “package/CFU” liability limitation in the bill of lading, employing language substantially similar to COGSA § 4(5). See, e.g., Nemeth v. General S.S. Corp., 694 F.2d 609, 611 (9th Cir.1982). Other courts, including the Second, Fourth, Fifth and Eleventh Circuits, simply require that the bill of lading include a “clause paramount” incorporating COGSA by reference. See, e.g., Insurance Co. of N. Am. v. M/V Ocean Lynx, 901 F.2d 934, 939 (11th Cir.1990), cert. denied, 498 U.S. 1025, 111 S.Ct. 675, 112 L.Ed.2d 667 (1991); General Elec. Co. v. MV Nedlloyd, 817 F.2d 1022, 1029 (2d Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 661 (1988); Cincinnati Milacron, Ltd. v. M/V American Legend, 804 F.2d 837, 837 (4th Cir.1986) (en banc) (per curiam), rev’g 784 F.2d 1161 (4th Cir.1986); Brown & Root, Inc. v. M/V Peisander, 648 F.2d 415, 424 (5th Cir.1981). The courts are in agreement that the carrier bears the burden of proving that it has afforded the shipper the requisite “fair opportunity” notice. See, e.g., General Elec., 817 F.2d at 1029; Tessler Bros. (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir.1974). Our review leads us to conclude that the bill of lading in this ease afforded “fair opportunity” notice sufficient to satisfy whatever essential requirements are imposed by these other courts. Constructive notice was afforded by the “clause paramount” legibly printed on the reverse side of the bill of lading: “This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act_” See Cincinnati Milacron, 804 F.2d at 837 (“clause paramount” provides constructive notice). A more particular notice was contained in the bill of lading “valuation clause”: 20. VALUATION. Carrier shall not be liable in any event for any loss, damage, misdelivery or delay with respect to the goods in an amount exceeding $500.00 lawful money of the United States per package, or in the case of goods not shipped in packages, per customary freight unit, unless the nature of the goods and a valuation thereof higher than $500.00 is declared in writing by Shipper on delivery of the goods to Carrier and inserted in the Bill of Lading and extra freight is paid thereon as required by the applicable tariff to obtain the benefit of such higher valuation. See Carman Tool, 871 F.2d at 899 n. 4 (finding that bill of lading provision substantially similar to that sub judice recited terms of COGSA § 4(5) and thus afforded actual notice); cf. supra pp. 144-45 (quoting 46 U.S.CApp. § 1304(5)). McGee contends that Sea Barge did not demonstrate its entitlement to summary judgment on compliance with the “fair opportunity” requirement because there was competent evidence that Sea Barge failed to offer PREPA ad valorem rates based on the true value of the cargo. Specifically, McGee reiterates its claim below that Sea Barge failed to show that published tariffs were available for a drilling rig on this voyage. McGee relies primarily on the Fifth Circuit’s language in Brown & Root: [T]he circumstances of the case before us do not overcome the prima facie evidence of the opportunity for a choice of rates and valuations ... First, COGSA was expressly incorporated in the bill of lading to thereby bring into play § 4(5). Next, and more significantly, the published tariff which has the effect of law very carefully gave Shipper a choice of valuations by a choice of precisely definable freight rates. 648 F.2d at 424 (emphasis added, citations omitted); see also Wuerttembergische v. M/V Stuttgart Express, 711 F.2d 621, 622 (5th Cir.1983) (per curiam) (similar, applying Brown & Root). The controlling question before us therefore becomes: whether actual and constructive notice, without more, affords the shipper “fair opportunity,” as a matter of law. Careful examination of the authorities has disclosed no appellate case which requires a valid tariff — in addition to actual or constructive notice — as an element of the “fair opportunity” doctrine. The Fifth Circuit, whose cases constitute the principal authority relied on by McGee, has reserved judgment on this matter: The facts of [Brown & Root, 648 F.2d at 424, and Wuerttembergische, 711 F.2d at 622] reveal that we have not held ... that the mere incorporation of COGSA into a bill of lading constitutes prima facie evi dence of fair opportunity. Because that circumstance is not before us in this case, we express no opinion on the issue. Couthino, Caro & Co. v. M/V Sava, 849 F.2d 166, 170 n. 6 (5th Cir.1988) (emphasis added). Other courts of appeals either directly hold that a tariff is not required if notice of the COGSA liability limitation has been given, see, e.g., Ocean Lynx, 901 F.2d at 939 {“Brown & Root thus adopted a system of constructive notice of an opportunity to declare excess valuation. Either a clause paramount in the bill of lading or a valid tariff filed with the Federal Maritime Commission ... is sufficient to afford the shipper an opportunity to declare excess value.”) (citations omitted, emphasis added), or clearly imply such a rule, see, e.g., Aetna Ins. Co. v. M/V Lash Italia, 858 F.2d 190, 193 (4th Cir.1988) (“In this case [language reciting the COGSA liability limitation in the] bill of lading establishes prima facie evidence of fair opportunity by clearly outlining the limitation of liability and explaining the shipper’s opportunity to avoid the limitation by declaring a higher value.”); Carman Tool, 871 F.2d at 901 (“so long as the bill of lading, on its face, provides adequate notice of the liability limit and an opportunity to declare a higher value, the carrier has discharged its responsibility”) (9th Cir.); cf. Komatsu, 674 F.2d at 811 (published tariff, without actual notice of the relevant provisions of COGSA, does not satisfy “fair opportunity” requirement). We thus eschew McGee’s implicit invitation to augment the “fair opportunity” doctrine. As the Ninth Circuit observed in a similar context: We decline to expand the fair opportunity requirement as suggested by [shipper]. The requirement is not found in the language of COGSA; it is a judicial encrustation, designed to avoid what courts felt were harsh or unfair results. The requirement has been criticized for introducing uncertainty into commercial transactions that should be governed by certain and uniform rules. Carman Tool, 871 F.2d at 900 (citations omitted); see also Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 29 F.3d 727, 728 (1st Cir.1994) (“COGSA was ... intended to reduce uncertainty concerning the responsibilities and liabilities of carriers, responsibilities and rights of shippers, and liabilities of insurers.”) (citations omitted); see generally Sturley, Parts I, II (criticizing “fair opportunity” doctrine as economically inefficient and inconsistent with COGSA’s roots in international and domestic law). The bill of lading indisputably provided both actual and constructive notice of the COGSA § 4(5) liability limitation. As there was no material fact in genuine dispute, the district court properly-granted summary judgment for Sea Barge/Ayacol on the ground that the COGSA “package/CFU” liability limitation applies. 3. COGSA Package/Customary Freight Unit COGSA § 4(5) limits liability to “$500 per package ... or in case of goods not shipped in packages, per customary freight unit.” 46 U.S.C.App. § 1304(5). The district court concluded that the drill rig was shipped as a single “package.” Strictly speaking, of course, it was not a “package.” The parties agree that “the actual cargo that was lost overboard was a truck mounted Cabot 900 Drilling rig, which was self propelled and had eighteen (18) wheels ... [and which] was not boxed or crated in any way.” McGee’s Mot. Opposing Def.’s Mot. for Summ. J. at 5-6 (emphasis added); compare Sea Barge’s Resp. to Pl.’s Statement of Uncont. Mat. Facts at 4 (expressly admitting these facts). Moreover, we have held that a printing press shipped “in open view, unboxed, [which] was not wrapped or crated ... was not a package as defined by COGSA.” Hanover Ins. Co. v. Shulman Transp. Enters., Inc., 581 F.2d 268, 275 (1st Cir.1978); accord Tamini v. Salen Dry Cargo AB, 866 F.2d 741, 743 (5th Cir.1989) (free-standing portable drilling rig, “for the most part” fully exposed and not enclosed in a container, was not a COGSA “package”); Petition of Isbrandtsen Co., 201 F.2d 281, 286 (2d Cir.1953) (unerated locomotive not COGSA “package”); 2A Benedict, supra, § 167, at 16-35 (“cargo that is shipped without any packaging whatsoever is generally treated as ‘not shipped in packages’”) (citations omitted, citing numerous cases). How, then, since the shipper chose to describe the shipment as a single package can it now claim it constituted multiple units? Thus, the drilling rig constituted but one unit, whether labeled a “package” or, more correctly, one “customary freight unit” (CFU). Within the meaning of COGSA, the CFU “is generally the unit on which the freight charge is based for the shipment at issue.” Binladen BSB Landscaping v. M.V. “Nedlloyd Rotterdam”, 759 F.2d 1006, 1016 (2d Cir.), cert. denied, 474 U.S. 902, 106 S.Ct. 229, 88 L.Ed.2d 229 (1985); Granite State, 825 F.Supp. at 1126. To determine the unit upon which freight was charged we look “to the parties’ intent, as expressed in the Bill of Lading, applicable tariff, and perhaps elsewhere.” Croft & Scully Co. v. M/V Skulptor Vuchetich, 664 F.2d 1277, 1282 (5th Cir.1982); see FMC Corp. v. S.S. Marjorie Lykes, 851 F.2d 78, 80 (2d Cir.1988) (in determining the CFU, “district court should examine the bill of lading, which expresses the contractual relationship in which the intent of the parties is the overarching standard”) (citations omitted). In support of its motion for summary judgment, Sea Barge argued that it charged a lump sum for transporting the drilling rig on the northbound voyage. Sea Barge relied on the bill of lading, PREPA’s acceptance of the bid/purchase order (purchase order), and a facsimile from Sea Barge to PREPA quoting the charge for the northbound voyage (“quoted charge”). The purchase order and the quoted charge clearly establish that the freight charge was based on a lump sum: [PURCHASE ORDER] Charges will be as follows: a) Ocean Transportation —Drill rig & ace.: $86,400 lumpsum b) Port charges & handling fees —San Juan arrimo: $5.00/2,000 lbs —Houston Wharfage: 1.50/2,000 lbs —Houston truck loading: $7.50/2,000 lbs [QUOTED CHARGE] David, I have finalize [sic] shipping charges for this move and wish to give you our charges to move this rig to Houston, Texas. Charges ocean transportation: Drill rig and accessories loose. $86,400.00 lumpsum Port charges and handling fees: San Juan Arrimo $5.00 per 2000 lbs Houston Wharfage $1.50 per 2000 lbs Houston truck loading $7.50 per 2000 lbs The relevant portion of the bill of lading is substantially the same, though it does not use the term “lump sum.” This evidence was sufficient to establish that Sea Barge was entitled to summary judgment on its claim that the northbound freight charge was based on a lump sum. See FMC Corp., 851 F.2d at 81 (bill of lading established that CFU was calculated on lump-sum basis). McGee argues that listing wharfage and terminal usage charges by short ton (st) on the bill of lading established the short ton as the CFU. We think this argument cuts the other way. The portion of the bill of lading reproduced above, see supra note 13, sets out the charge per short ton only for wharfage and terminal usage, whereas the freight charge is stated in a lump sum. And this reading is buttressed by the quoted charge and the purchase order, which clearly evince the intent of the parties to calculate the freight charge on a lump-sum basis. Sea Barge having carried the initial burden on its motion for summary judgment, the burden shifted to McGee to point to competent evidence indicating a trialworthy issue. See Local 48 v. United Bhd. of Carps. & Joiners, 920 F.2d 1047, 1050 (1st Cir.1990). In support of its claim that freight charges were based on the short ton, McGee proffered the Sea Barge invoice to PREPA relating to the northbound voyage, and a portion of the deposition testimony of William Laud-erdale. The invoice is similar in all relevant respects to the portion of the bill of lading set out in the margin. See supra note 13. A flat $86,400 charge is made for “Ocean freight,” while wharfage and terminal charges are listed on a short-ton basis. Although, as McGee points out, other portions of the invoice and bill of lading reflect that the drilling rig weighed 1,726,000 pounds, there is nothing to link weight with the freight charge, and McGee made no proffer supporting such a link. More importantly, the Lauderdale deposition tendered by McGee states that Lauder-dale calculated the charges for the northbound voyage based on Sea Barge’s expenses, including the costs of operating the vessel; agency, port, stevedoring and container costs; as well as a profit margin. Nowhere does Lauderdale intimate that the drilling-rig weight was a factor in calculating the freight charge or in the parties’ discussions of the freight charge for the northbound voyage. Thus, we find no competent evidence that the freight charge was based on anything other than a lump sum, see S.S. Marjorie Lykes, 851 F.2d at 80-81 (finding that bill of lading and tariff established that parties intended to calculate freight on lump-sum basis), which means that the drilling rig itself was the CFU in this case. Binladen, 759 F.2d at 1016; see Union Carbide Corp. v. M/V Michele, 764 F.Supp. 783, 786 (S.D.N.Y.1990) (CFU was transportable tank, since freight charge was computed on lump-sum basis). B. The Cross Appeal (No. 93-1548) The Ayacol and Sea Barge cross-appeal challenges (1) the district court finding that the loading of the drilling rig was not controlled by PREPA to such an extent that Ayacol was exonerated from liability, and (2) the order denying Ayacol/Sea Barge an attorney fee award against McGee. We deem these claims waived due to cross-appellants’ failure to object to the magistrate-judge’s report and recommendation within the ten-day period prescribed by 28 U.S.C. § 636(b)(1)(C). See Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980) (“[A] party ‘may’ file objections within ten days or he may not, as he chooses, but he ‘shall’ do so if he wishes further [appellate] consideration.”). See also Fed.R.Civ.P. 72(b) (same); D.P.R.Loc.R. 510.2(A) (failure to object to magistrate-judge’s report within ten days waives absolute right to appeal district court order). Ayacol/Sea Barge urge that timely objection is required only when a party challenges a finding actually set out in the magistrate-judge’s report and recommendation. Thus, they assert no exception to the report per se but challenge the “fail[ure] to make the additional findings requested [in the motion for summary judgment].” We reject their contention, which would allow an aggrieved party to assert on appeal an argument never surfaced in the district court; namely, in this case, that the magistrate-judge’s report failed to respond to the portions of the motion dealing with exoneration of liability and attorney fees. See United States v. Nuñez, 19 F.3d 719, 722 n. 8 (1st Cir.1994) (arguments not seasonably addressed to trial court may not be surfaced for first time on appeal) (citing cases). Finally, the proposed bypass of the Article III judge would undermine the established role of the magistrate judge in the federal system: The purpose of the Federal Magistrates Act is to relieve courts of unnecessary work. Since magistrates are not Article III judges, it is necessary to provide for a redetermination by the court, if requested, of matters falling within subsection (b)(1)(B). To require it if not requested would defeat the main purpose of the act. Park Motor Mart, 616 F.2d at 605 (footnote omitted) (emphasis added); see also id. at 605 n. 1 (“Nor can it be thought that a party could skip the district court and, in effect, appeal directly to us. We have no jurisdiction to review the determinations of magistrates”). We affirm the district court judgment for Sea BargelAyacol, dismiss the Sea Barge/Agacol cross-appeal, and remand for further proceedings consistent with this opinion. All parties are to bear their own costs. . The COGSA-imposed liability limit applies to each package or "customary freight unit” ("CPU"). . See note 1 supra. . The bill of lading included a typical “clause paramount”: 1. CLAUSE PARAMOUNT: This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act, approved April 16, 1936. See also 46 U.S.C.App. § 1312 ("any bill of lading ... containing an express statement that it shall be subject to the provisions of [COGSA] shall be subjected hereto as fully as if subject hereto by the express provisions of [COGSA] ... Provided further, that every bill of lading ... shall contain a statement that it shall have effect subject to the provisions of [COGSA]”) (emphasis original); cf. Komatsu Ltd. v. States S.S. Co., 674 F.2d 806, 810 n. 6 (9th Cir.1982) (rejecting statu-toiy challenge to "fair opportunity” doctrine based on § 1312, because this section "leaves a carrier free to quote the language of section 4(5) in full”). . McGee does not challenge the legibility of the COGSA notice. Cf. Nemeth, 694 F.2d at 611-12 (illegible recitation of COGSA § 4(5) does not provide “fair opportunity” notice). . In light of our conclusion that the bill of lading met whatever "fair opportunity” notice requirements are imposed by other circuits, we refrain from embracing the "fair opportunity” doctrine itself, in any form. We take this course because the parties have assumed, from the outset, that a COGSA-related "fair opportunity” doctrine would apply. Thus, we leave for another day, and a proper adversarial setting, what we perceive to be a problematic question. See Michael F. Sturley, The Fair Opportunity Requirement Under COGSA Section 4(5): A Case Study in the Misinterpretation of the Carriage of Goods by Sea Act (Part I), 19 J.Mar.L. & Com. 1 (1988); and Michael F. Sturley, The Fair Opportunity Requirement (Part II), 19 J.Mar.L. & Com. 157, 176 (1988) ("All of the available evidence suggests that the [COGSA] package limitation should not be subject to a fair opportunity requirement.”). .McGee relies on a deposition by William Laud-erdale, the Sea Barge agent responsible for negotiating freight charges with PREPA, which states that the rate for transporting the drill rig was "outside” the tariff Sea Barge filed with the Federal Maritime Commission, because this was "a single shipper on a single voyage, on a contract voyage.” The record does not contain a copy of the Sea Barge tariff. Cf. infra note 7. . Though the published tariff in Ocean Lynx "provide[d] that an ad valorem rate shall be applied to shipments of certain commodities [but did] not provide for the method through which a shipper of goods other than the listed commodities can avoid COGSA section 4(5)’s limitation on liability,” 901 F.2d at 940, the court found that incorporation of COGSA into the bill of lading satisfied the "fair opportunity” requirement, id. The argument rejected by the Eleventh Circuit is very similar to that advanced by McGee. See supra note 6. . Further, nothing in the facts of this case counsels extension of the “fair opportunity” doctrine. McGee has not shown that the absence of relevant published tariffs prevented PREPA from avoiding the COGSA liability limitation. We will not presume that PREPA, McGee's insured, would have declared additional value under a published tariff, especially since PREPA's contract with Henley obligated it to provide marine cargo insurance for the full replacement value of the drilling rig. Compare Travelers Indemn. Co. v. Vessel Sam Houston, 26 F.3d 895, 900 (9th Cir.1994) (because shipper obtained insurance through an independent underwriter, "there is every reason to believe that [the shipper] made a deliberate choice to forego the additional cost that would have been incurred in raising [the COGSA] liability limit”). Indeed, Sea Barge proffered uncontroverted evidence that though it offered insurance, PREPA declined, opting instead to purchase insurance through McGee. Professor Sturley has suggested that in the typical case, the ad valorem rates for excess value offered by a carrier are higher than premiums for equivalent cargo-insurance coverage from a third-party underwriter. See Sturley, Part II, at 194. A rational shipper confronted with such a choice is not likely to pay ad valorem rates when third-party insurance coverage is less expensive. Moreover, a judicially-imposed tariff requirement would increase transaction costs to the carrier, with no corresponding benefit to either party. .McGee also argues that because David Kiester, the PREPA agent who negotiated the bill of lading with Sea Barge, allegedly was inexperienced in maritime matters, knowledge of the effect of COGSA § 4(5) may not be imputed to PREPA. The only case McGee cites for this proposition, see Pan American World Airways v. California Stevedore & Ballast Co., 559 F.2d 1173, 1177 (9th Cir.1977) (holding that "clause paramount” alone cannot be used to impute knowledge of effect of COGSA to shipper), is inapposite. Moreover, we conclude that Kiester's inexperience is immaterial to our analysis. Cf. Carman Tool, 871 F.2d at 901 n. 9 ("So long as the bill of lading has all the necessary information [i.e., gives actual notice of COGSA § 4(5) ], the shipper, or any other interested party, has the means of learning everything it may wish to know about the terms of the transaction.”) (emphasis added).
714863-18577	OAKES, Circuit Judge: George Saltys appeals from Judge Clarie’s denial of his habeas corpus petition, raising significant questions regarding the role of counsel at pretrial identification proceedings and the conduct of such proceedings. We hold that petitioner did not receive adequate representation at trial, and we grant the petition. In May 1968 petitioner was convicted by a state jury on a charge of robbing a West Hartford, Connecticut, drugstore on February 7, 1968. Three people observed the robbery: Jim Polowitz, a stock clerk, who testified that he saw one robber’s face for about 20 seconds before he was forced to lie on tne floor and identified petitioner as the culprit in court; Richard O’Brien, a friend of Polowitz’s, who testified that he “caught a glimpse” of that robber’s face for 10-30 seconds and also identified petitioner in court; and William Doria, a pharmacist, who, despite approximately the same time for observation, was unable to make a positive identification. None of the men saw the face of the second robber. The robber whose face was seen wore a coat with a turned-up collar and a hat with a turned-down brim. On the day after the robbery the process of trying to identify the bandits began. Polowitz and O’Brien examined photographs in the West Hartford police station on two occasions but made no identification. The record does not indicate whether petitioner’s picture was one of those displayed on those occasions. In late February petitioner and three others were arrested and charged with an unrelated Hartford robbery, a charge that was subsequently dismissed. Keys and a jacket belonging to Polowitz and taken from him during the West Hartford robbery were recovered from two of the men arrested with Saltys. On March 12 the Hartford police told Polowitz that his property had been recovered, and Polowitz told O’Brien about the retrieval. On the same day, Polo- witz, aware that the police suspected a particular person, examined four to six police “mugshots” at the Hartford station, picked out a photograph of petitioner as “resembling” or “looking like” the robber, and subsequently identified his coat and keys. On the following day, March 13, the effort to identify the robber positively was renewed, and it is from this point that questions regarding the propriety of the identification procedures become especially acute. O’Brien and Polowitz looked at a spread of four to six “mugshots,” from which each man independently identified petitioner as a man resembling the robber. Immediately after the photographic identification the witnesses were led through the Hartford “bullpen,” the area where arrestees are held pending arraignment. At that time, Polowitz testified, he knew that the police wanted him to identify someone, and he was looking for the man whom he had just identified from the photographs. As might be guessed, petitioner was among the 30 or so men in the bullpen, and both men then identified him positively as the robber. In the court below, Polowitz said he was not “100 percent sure” of his identification until he saw petitioner in the bullpen. Polowitz, who is 5 feet 7 inches tall, had described the robber as one of the same height; petitioner is 5 feet 11 inches tall and was seated in the bullpen when Polowitz saw him. This bullpen “walk-through” was done without notice to petitioner or to petitioner’s lawyer, who was representing petitioner that very day at his arraignment on the unrelated Hartford robbery charge. On the same day (March 13), after the day’s first photographic identification and the bullpen identification, the witnesses again looked at petitioner’s photograph, following which they again made two other identifications, one in the bullpen and one in “a glass-enclosed cage with two other guys,” the detention area for the Hartford Circuit Court. Apparently suspecting that he was under observation, petitioner unsuccessfully tried to get the attention of his Hartford lawyer, who was in an adjoining room unaware of the identification in progress. At trial, petitioner presented an alibi defense and testified on his own behalf. The pretrial and in-court identifications were introduced as substantive evidence and were, on the record before us, the only pieces of evidence connecting petitioner to the crime, a fact pattern that distinguishes this case from most other identification cases reviewed by this court, see, e. g., United States v. Harrison, 460 F.2d 270 (2d Cir., 1972), and makes the identification procedure even more important than it is inherently. Petitioner’s appointed counsel did not object, before or at trial, to the in-court identifications, relying instead on cross-examination to show the unreliability of the identification. In doing so, petitioner’s counsel brought out many more facts as to the pretrial identifications. Petitioner and his counsel, according to petitioner, never discussed that trial decision. On the basis of this failure to object the State argues that petitioner waived any complaints regarding the manner in which he was identified. Counsel also refrained, over petitioner’s objection, from eliciting testimony that Polowitz’s coat and keys had been recovered from someone other than petitioner, apparently on the theory that any mention of Saltys’ arrest for another robbery would prejudice him. Although the district court opinion indicates that no direct appeal from the judgment of conviction was taken, petitioner and his state habeas corpus lawyer (who was not his trial lawyer) testified at that habeas corpus proceeding that an appeal was taken and denied. In any event, his state habeas corpus petition was denied, and this federal action was instituted in mid-1970. Petitioner is foreclosed by the law of this circuit from asserting a right to counsel at the pre-indictment, pre-arrest photographic identification sessions, a conclusion that follows from our decision denying the right to counsel at even later photographic displays. United States ex rel. Johnson v. New York Department of Correctional Services, 461 F.2d 956 (2d Cir., 1972) (no right to counsel at post-indictment, pretrial display); see United States v. Fernandez, 456 F.2d 638, 641 n. 1 (2d Cir. 1972); United States v. Mojica, 442 F.2d 920, 921 (2d Cir. 1971); United States v. Fitzpatrick, 437 F.2d 19, 25-26 (2d Cir. 1970); United States v. Bennett, 409 F.2d 888, 898-900 (2d Cir.), cert. denied sub nom. Jessup v. United States, 396 U.S. 852, 90 S.Ct. 117, 24 L.Ed.2d 101 (1969) (post-arrest, preindictment display). We adhere to the position of Bennett. But whether petitioner had a constitutional right to counsel at the bullpen walk-through and the later courthouse viewing of him by the witnesses is an entirely different and more subtle question. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), as modified by Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), furnish guidelines. Wade and Gilbert established the right to counsel at the “critical stage” of a formal, post-indictment lineup. A plurality in Kirby held, however, that the right attaches only “at or after the initiation of adversary judicial criminal proceedings —whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” 92 S.Ct. at 1882. The Chief Justice was of the view that the right attaches “as soon as criminal charges are formally made against an accused . . . .” 92 S.Ct. at 1883. Here the viewings were before proceedings were instituted in respect to the crime testified to by the identification witnesses, but while petitioner was in custody awaiting arraignment on another crime and after counsel had been retained to represent him at the arraignment. Thus it is arguable that Wade and Gilbert, still would require counsel at the viewings here, even with the limitations of Kirby, especially in the light of this circuit’s own cases such as United States v. Roth, 430 F.2d 1137, 1140 (2d Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 583, 27 L.Ed.2d 633 (1971) (Wade applicable to informal, as well as formal, post-indictment confrontation arranged by Government). Wade, it will be recalled, said with respect to the right to counsel: In sum, the principle of Powell v. Alabama [287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158] and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice. 388 U.S. at 227, 87 S.Ct. at 1932 (emphasis original). “Potential substantial prejudice,” it may be argued, inhered in the confrontation of Saltys. The witnesses had just picked out petitioner from a photograph as a man “resembling” the robber, and Polowitz went to the bullpen looking specifically for petitioner and aware that the man suspected by the police was there. Petitioner was seated, so Polowitz could not measure his height against the robber’s, and the racial composition of the group in the bullpen may have unduly distinguished petitioner. As we said in Roth, supra, 430 F.2d at 1141 (citation omitted), “the more informal the viewing procedure the greater the possibility of subtle suggestiveness.” The procedures in this case were most informal, heightening the possibility of suggestiveness and making a faithful reconstruction of what happened at trial “difficult or even impossible.” Id. This particular confrontation was, as we have said, at a “critical stage,” at least in the sense that petitioner was suspected of complicity in the crime, was in custody albeit for another crime, and had been identified in photographs by the two witnesses who then viewed him in person. The identification proceedings were, therefore, arguably at a point “where the results might well settle the accused’s fate and reduce the trial itself to a mere formality.” Wade, supra, 388 U.S. at 224, 87 S.Ct. at 1931. If Wade applies, it flows also from Gilbert v. California, 388 U.S. 263, 272-273, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178 (1967), that the witnesses’ testimony that they identified petitioner in the bullpen and in the arraignment courtroom should have been excluded automatically at trial, without inquiring whether that testimony had an independent source. As the Court put it: That testimony is the direct result of the illegal lineup “come at by exploitation of [the primary] illegality.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup. Ibid. Were this error, it alone would be enough, absent waiver, to require reversal of petitioner’s conviction under Gilbert. The district court held, however, that petitioner, by failing to object at trial, waived all constitutional arguments regarding his identification. Under the classic test articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (assistance of counsel), waiver of a constitutional right consists of action amounting to “an intentional relinquishment or abandonment of a known right or privilege.” Since Johnson the Supreme Court has consistently declared that courts should not find waiver easily, particularly in criminal cases involving alleged constitutional violations. Compare Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 86 L.Ed. 680 (1942), with Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). See also United States ex rel. Bruno v. Herold, 408 F.2d 125, 129 (2d Cir. 1969) (2-1 decision), cert denied, 397 U.S. 957, 90 S.Ct. 947, 25 L.Ed.2d 141 (1970) (Fay inapplicable to matters of “trial strategy”); Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1109-12 (1970). But we need not reach the waiver questions here, for on the basis of the record before us we take the view that Saltys was denied either effective or reasonable assistance of counsel. While the requirements for finding inadequacy of counsel are stringent, e. g., United States ex rel. Marcelin v. Mancusi, 462 F.2d 36 (2d Cir., 1972), here we have a case where not just the key but the only evidence against the defendant connecting him with the crime was identification testimony, and counsel failed to take even the rudimentary step of seeking at a suppression hearing in the absence of the jury to explore the evidence underlying the proposed in-court identification evidence. This was an available procedure in Connecticut at the time; it is described as “proper procedure” in State v. Duffen, 160 Conn. 77, 273 A.2d 863, 865 (1970). Moreover, petitioner’s counsel never discussed the possibility of objecting to the admission of the identification testimony. Counsel apparently made no effort to inquire about the circumstances surrounding the photographic, bullpen, and pretrial courtroom identifications. Although apparently petitioner did not mention to trial counsel the absence of a lawyer at the bullpen and courtroom identifications, he was aware of the procedures only as they were terminating, and his state testimony indicates that he felt that it was too late to correct the damage that had already been done. In any event counsel should have inquired, since, irrespective of the limitations Kirby has placed on Wade, there was plainly a highly viable Wade and Gilbert argument available to him, a line of defense that prior to Kirby might have been impregnable. As Mr. Justice Brennan pointed out in his Kirby dissent, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, 13 of 18 states had applied Wade and Gilbert to pre-indictment confrontations for identification and all (i. e., 8) United States Courts of Appeals facing the question had done so, including our own. See United States v. Ayers, 426 F.2d 524, 526-527 (2d Cir.), cert. denied, 400 U.S. 842, 91 S.Ct. 85, 27 L.Ed.2d 78 (1970). It may be that after Kirby the objection might have been unavailing, but that does not take away from the proposition that in all probability a timely objection on Wade-Gilbert grounds would have prevailed and petitioner then been acquitted, especially when one realizes that in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), following Wade, the accused was confronted after arrest and before being formally charged. See Brennan, J., dissenting in Kirby v. Illinois, supra, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. Our point is that counsel’s errors of omission and commission at the time of trial resulted in Saltys’ conviction, albeit the same course of action taken today could not be wholly faulted. Even today, however, his omission to request a suppression hearing would be a serious one. It is true that counsel and petitioner did agree, after discussion, not to bring out evidence disassociating petitioner from the inculpatory coat and keys. But this decision was related to the question of identification only in the limited and for us irrelevant sense that Polowitz was told about their recovery and asked to view photographs on the same day. We cannot see what conceivable trial strategy was followed in, or what tactical advantage could obtain to Saltys from, failing to object — we might add with vigor — on Wade and Gilbert grounds to the admission of the identification testimony. This may have stemmed from the failure, as we say, to have explored the identification question at a suppression hearing. It may have stemmed from a lack of knowledge of Wade and Gilbert. By virtue of what we consider “woefully inadequate,” United States v. Currier, 405 F.2d 1039, 1043 (2d Cir.), cert. denied, 395 U.S. 914, 89 S.Ct. 1761, 23 L.Ed.2d 228 (1969), representation, key objectionable evidence, without which Saltys in all probability could not have been convicted, was admitted without objection. It was then strengthened, or at least expanded on, by an ill-advised cross-examination. With resultant prejudice, counsel’s omissions here justify reversal. Cf. People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 (1963) (en banc) (Traynor, J.). Although the record indicates that there is probably no evidence on which petitioner can now be retried, the State must be given an opportunity to retry him constitutionally. This is true even though retrial is doubtful in any event because Saltys has served his sentence and is on parole. The ruling below is reversed, with directions to issue the writ unless Saltys is retried within 60 days from the issuance of our mandate or such further reasonable time as the district court, for good cause shown, may allow. We need not examine the other substantial questions of the admissibility of photographic identification evidence presented in the case. Judgment in accordance with opinion. . Sentenced to a term of 4 to 7 years, he was paroled in January 1972. . At the federal habeas corpus hearing, O’Brien testified that there were about 10 photographs in this series and in the series he looked at the next day. . Petitioner, who is white, contends that, of the 30 men, only three others were white, and even roughly similar in age and appearance. The Hartford police and the identifying witnesses contend that half the group was composed of whites. . One commentator has properly cautioned “ . . . that no class of evidence is less to be relied upon than evidence of identity.” Sobel, Identification: Legal and Practical Problems, 166 N.Y.L.J. No. 122, at 3 (Dec. 28, 1971) (one part of a ten-part article by the Hon. Nathan R. Sobel, Surrogate of Kings County, New York, appearing in the New York Law Journal between Dec. 20, 1971, and Jan. 4, 1972, hereinafter cited as Sobel, with appropriate references). This article has been reprinted sub nom., Assailing the Impermissible Suggestion : Evolving Limitations on the Abuse of Pre-Trial Criminal Investigation Methods, 38 Brooklyn L.Rev. 261 (1971).
7650426-12430	CUMMINGS, Circuit Judge. Plaintiff Donald Rohan sought judicial review of the defendant Commissioner’s predecessor’s finding that plaintiff was not entitled to disability insurance benefits under the Social Security Act (42 U.S.C. §§ 416(i), 423(d)). In January 1996, the district court granted the Commissioner’s motion for summary judgment, resulting in this appeal. In September 1990, plaintiff applied for disability insurance benefits on the ground that he had been disabled since June 30, 1989, because of a back condition. This application was ultimately denied in April 1991. Plaintiff reapplied for disability insurance benefits in August 1992, claiming depression and again a back condition. This application was also ultimately denied, and plaintiff requested an administrative hearing. In February 1994, plaintiff testified at a hearing before Administrative Law Judge James A. Horn. His wife also testified. In June 1994, the ALJ reopened the agency’s denial of plaintiffs original application. He decided that plaintiff was not entitled to a period of disability or disability insurance benefits under the Social Security Act. The Appeals Council denied review, making the ALJ’s decision the final decision of the Commissioner. As a result, in January 1995 plaintiff brought this suit seeking review of the adverse decision of the Commissioner. We reverse and remand. Facts When the ALJ issued his decision, plaintiff was 46 years old. He had a high school education and some vocational training and worked as a carpenter until he injured his back at work in June 1989. He had previously worked as a maintenance man. As to his physical condition, a month after plaintiff injured his back, magnetic resonance imaging revealed a large herniated disk, a left extra foraminal disk protrusion and degeneration. In December 1989, Dr. Scott Mox, his treating physician, reported that Rohan’s back condition had not improved significantly, so that he could not return to work as a carpenter and might need surgery. In January 1990, Dr. Thomas McNeill examined plaintiff and found that his straight leg raising test was positive on the right, he had difficulty dressing and had a herniated disk. Work hardening was recommended. Subsequently, plaintiff enrolled in a work hardening program and was considered capable of exertionally light work although his back was termed mechanically unsound. In September 1992, Dr. Samuel Goldman examined plaintiff and found that his ability to bend his back was significantly restricted and that his low back pain was secondary to a herniated disk. As to his mental condition, plaintiff visited psychiatrist Dr. Michael Shapiro in March 1992 and complained of depression due to his back injuries. Plaintiff said that therefore he could not find a job and could neither stand nor sit very long. He also complained of sleep problems and dreams about Viet Nam. Dr. Shapiro diagnosed a major depressive disorder and ordered objective tests. In April 1992, Dr. Shapiro prescribed Prozac for plaintiff’s depression. Dr. Shapiro’s monthly notes recorded plaintiffs anger, difficulties relating to others including his wife, physical complaints, sleep disturbance and financial concerns but noted that he was engaging in the repair and sale of lawn mowers. In September 1992, Dr. Shapiro reported that plaintiffs daily activities were very limited, he had a constricted field of interest, was withdrawn and was more irritable with his wife. However, the psychiatrist stated that plaintiffs anti-depressant therapy resulted in mild improvement but that still he had a major depressive disorder. In December 1992, Dr. Shapiro completed a Psychiatric Review Technique Form revealing that plaintiff had signs of depression, anxiety and personality disorder. This form also reported that plaintiffs daily activities and social functioning were markedly restricted and that he had deficiency in concentration, persistence or pace, with repeated episodes of deterioration or decompensation at work or in a work-related setting. On the Mental Residual Functional Capacity Evaluation, the doctor indicated that plaintiffs abilities to meet various cognitive, psychological and social demands of work were moderately to markedly restricted, that he could not handle pressure, and that he becomes angry and explosive. In April 1993, Dr. Shapiro wrote a letter to a Palatine, Illinois, law firm stating that plaintiffs condition was debilitating and limiting and that his inability to function, chronic pain and lack of alternative life style contributed to his depressed state. He concluded that plaintiff was totally disabled by a combination of his physical and psychiatric condition. In January 1994, he reported to the Illinois Department of Public Aid that plaintiff could not function without his wife’s assistance, had thoughts of suicide and had a major depressive disorder. He also characterized plaintiffs condition as “severe.” At his hearing before the ALJ, plaintiff testified that he was very depressed because of his inability to work caused by his back condition. He added that pain and depression made it difficult for him to remember and concentrate and that he was easily upset. He disposed of his guns because his wife was concerned that he might kill himself. He added that he was frequently aggravated and had difficulty concentrating and did not go to a Veterans Administration hospital because he did not think he would be treated there. He said his sessions with Dr. Shapiro were paid for. by Public Aid. His wife testified that he was irritable and very depressed with mood swings and difficulty in concentrating, sleeping and relating to others. Administrative Law Judge’s decision As noted, in June 1994 the ALJ rendered a decision adverse to plaintiff. The ALJ noted plaintiffs physical disabilities but decided they were not of listing level. He also found that plaintiffs mental impairment was not of listing level of severity because his complaints only centered “around family and financial concerns.” He concluded that plaintiff could perform light work and retained “the mental ability to understand, remember, and carry out simple instructions, to respond appropriately to supervision and co-workers and to tolerate routine work pressures in a work setting.” The ALJ placed significance on plaintiffs lack of treatment for his impairments since he was allegedly disabled in June 1989. He noted that Mr. Rohan never had any inpatient treatment and no physical therapy since September 1989. He refused to believe plaintiffs testimony about his physical condition because he had no treatment for it since December 1989, although he could afford medical treatment through an $85,000 workmen’s compensation claim settlement. The ALJ also stated that in July 1990, plaintiff was capable of work at the light exertional level and that one of his doctors reported that he was able to perform light work in March 1991. Further, the ALJ interpreted reports from 1989 and 1990 by Doctors Mox and McNeill as only precluding plaintiff from working “at strenuous activity or doing heavy work,” causing the ALJ to conclude that Rohan could perform light work. The ALJ devoted most of his opinion to Mr. Rohan’s alleged mental impairment and concluded that it did not preclude unskilled work activity. The ALJ observed that plaintiffs treating psychiatrist, Dr. Michael Shapiro, found that Mr. Rohan had some depression “largely caused by family and financial concerns.” The ALJ added that “given the situational aspect of the claimant’s depression,” he was unconvinced that it was “of such severity that it would prevent the performance of the mental features of unskilled work.” Further, the ALJ’s report stated that Dr. Shapiro “never did a mental status examination on the claimant; he simply reported the claimant’s alleged symptoms.” The ALJ also noted that Dr. Shapiro’s notes revealed that in 1992 and 1993 the plaintiff was engaging in an ongoing business “buying lawn mowers, snowmobiles, tractors, and motorcycles, repairing those objects and then selling them.” In refusing to believe that plaintiffs activities were markedly restricted, the ALJ cited plaintiffs ongoing lawn mower repair and sales business in 1992 and 1993. The ALJ also discounted any disabling pain of plaintiff since he did not take any prescription medication until the eve of the hearing despite his complaints of disabling pain. The ALJ also concluded that Mrs. Rohan’s testimony was inconsistent with the record and therefore entitled to little weight. In sum, he found that plaintiff was not disabled. The ALJ added that he disregarded Dr. Shapiro’s opinions on the ground that only the Commissioner can determine the issue of whether a claimant is legally disabled and entitled to benefits. He added that Dr. Shapiro’s opinions were “unreasoned and undocumented” and “based only upon subjectively reported symptoms.” The ALJ concluded his opinion with the following findings: 1. The claimant has not attained retirement age. 2. The claimant satisfied the disability insured status requirements of the Social Security Act on June 30, 1989, and he continues to satisfy those requirements at least through the date of this decision. 3. The claimant has not engaged in substantial gainful activities since June 30,1989. 4. The claimant has a vertebrogenic disorder of the lumbar spine and situational depression. These impairments are not of listing level of severity. 5. The claimant’s testimony concerning his symptoms and restrictions was not credible and the testimony was inconsistent with and unsupported by the objective-clinical findings and other evidence of record considered as a whole. 6. The claimant has a residual functional capacity to perform full range of light work; that is, he can walk and stand six hours a day, occasionally bend and stoop, frequently lift and carry objects weighing 10 pounds or less; occasionally lift and carry objects weighing 20 pounds or less, can understand, remember, and carry out simple instructions, can respond appropriately to supervision and coworkers, and can tolerate routine work pressures in a work setting. 7. The claimant is unable to perform his past relevant work as a carpenter. 8. The claimant is a younger individual with a high school education. It is immaterial whether his past work was skilled and whether he possesses past transferrable work skills. 9. Vocational rules 202.20 and 202.22 apply and direct a finding that the claimant is not disabled. 10.The claimant has not been under a “disability” as defined in the Social Security Act, at any time through the date of this decision. District Court’s opinion In granting defendant’s motion for summary judgment, Judge Norgle summarized the findings of the administrative law judge and concluded that the record provided substantial evidence for those findings. He stated that plaintiffs impairment did not satisfy the relevant affective disorder listing requirements, namely, (1) a marked restriction of daily living activity, (2) difficulty in social functioning, (3) deficiency of pace, concentration, or persistence which results in failure to timely complete tasks, and (4) repeated occasions of decompensation or deterioration in work-like settings. After summarizing the findings of the ALJ that were adverse to plaintiff (App. 18-20), the district judge noted that the ALJ had applied the Medical-Vocational Guidelines (20 C.F.R. § 404.1569) in determining that plaintiff could perform a significant number of jobs. Judge Norgle then pointed out: The ALJ also compared the non-exertional demands of light work to Rohan’s non-exertional limitations. He found that Ro-han can tolerate routine job pressures in a work environment and that Rohan has the mental capacity to remember, understand, and perform simple instructions and to deal appropriately with supervisors and coworkers. Accordingly, after considering exertional and non-exertional limitations, the ALJ found Rohan not disabled. App. 21. In closing the opinion below, the district judge refused to disturb the ALJ’s credibility findings because they were not “patently wrong” under Luna v. Shalala, 22 F.3d 687, 690 (7th Cir.1994). Defendant’s motion for summary judgment was granted because the ALJ’s decision was not considered contrary to the substantial weight of the evidence (App. 23). We disagree. ANALYSIS
4073520-20955	ORDER DENYING CERTIFICATE OF APPEALABILITY JEROME A. HOLMES, Circuit Judge. Petitioner Anthony L. Ciocchetti, a pro se litigant incarcerated in the federal correctional facility in Florence, Colorado, seeks a certificate of appealability (“COA”) to challenge the district court’s denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2255. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we DENY Mr. Ciocchetti’s application and DISMISS his appeal. BACKGROUND In February 2008, Mr. Ciocchetti was convicted by a jury in federal court on charges of bank fraud, in violation of 18 U.S.C. § 1344, and making materially false statements in connection with a bank loan application, in violation of 18 U.S.C. § 1014. He was sentenced to sixty-five months’ imprisonment, to be followed by five years of supervised release, and ordered to pay $460,122 in restitution. Following his conviction, Mr. Ciocchetti appealed to this court, challenging only the district court’s calculation of the loss amount at his sentencing. We affirmed. See United States v. Ciocchetti, 330 Fed.Appx. 745 (10th Cir.2009). Mr. Ciocchetti then filed a petition for a writ of habeas corpus in the United States District Court for the District of Wyoming, asserting that he received ineffective assistance of counsel. More specifically, he averred that his trial attorneys were constitutionally deficient in (1) permitting a constructive amendment of the indictment, (2) failing to cross-examine witnesses adequately, (3) not asking for a limiting jury instruction, and (4) not raising a claim of error under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), regarding the district court’s calculation of his advisory Guidelines sentencing range based upon facts that the court found by a preponderance of the evidence. The district court found no merit to these claims and denied both Mr. Ciocchetti’s § 2255 petition and his request for an evidentiary hearing. It also denied him a GOA. Mr. Ciocchetti now seeks to appeal. STANDARD OF REVIEW A COA is a jurisdictional prerequisite to this court’s review of a § 2255 motion. 28 U.S.C. § 2253(c)(1)(B); accord Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); United States v. Gonzalez, 596 F.3d 1228, 1241 (10th Cir.2010). “We will issue a COA ‘only if the applicant has made a substantial showing of the denial of a constitutional right.’ ” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir.2009) (quoting 28 U.S.C. § 2253(c)(2)); accord Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir.2006). Under this standard, “the applicant must show ‘that reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.’ ” United States v. Taylor, 454 F.3d 1075, 1078 (10th Cir.2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “In other words, the applicant must show that the district court’s resolution of the constitutional claim was either ‘debatable or wrong.’ ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Importantly, our inquiry does not necessitate a “full consideration of the factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. Rather, all that is required is “an overview of the claims ... and a general assessment of their merits.” Id. Although Mr. Ciocchetti is not required to demonstrate that his appeal will succeed in order to obtain a COA, he must “prove something more than the absence of frivolity or the existence of mere good faith on his or her part.” Id. at 338, 123 S.Ct. 1029 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)) (internal quotation marks omitted). DISCUSSION Mr. Ciocchetti seeks a COA so as to challenge the district court’s denial of his ineffective assistance of counsel claim. In his application, he reasserts three of the four grounds that he raised below — viz., that he received ineffective assistance of counsel when his attorneys (1) allowed a constructive amendment to the indictment, (2) failed to adequately cross-examine a key witness, and (3) did not challenge the trial court’s use of “facts” not found by a jury to enhance his advisory Guidelines range. In addition, Mr. Ciocchetti maintains that “the lower court ought to have granted an evidentiary hearing to resolve the genuine material facts at issue between what [Mr. Ciocchetti] claimed in his [original habeas petition] and what [the government] said excused [its] willful misrepresentation of the facts and evidence.” Aplt. Combined Opening Br. & COA Appl. at iv. I. Ineffective Assistance of Counsel Claims Where a “COA application rests on claims of ineffective assistance of counsel, in order to determine if [a movant] can make a substantial showing of the denial of a constitutional right we must undertake a preliminary analysis ... in light of the two-part test for ineffective assistance” articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). United States v. Harris, 368 Fed.Appx. 866, 868 (10th Cir.2010). “Under Strickland, [a movant] must show that counsel’s performance fell below an objective standard of reasonableness as measured against prevailing professional norms, and he must show that there is a reasonable probability that the outcome would have been different but for counsel’s inadequate performance.” Sandoval v. Ulibarri, 548 F.3d 902, 909 (10th Cir.2008) (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052). “When, as here, [a] basis for the ineffective assistance claim is the failure to raise an issue, we must look to the merits of the omitted issue.” United States v. Orange, 447 F.3d 792, 797 (10th Cir.2006). “If the omitted issue is without merit, counsel’s failure to raise it ‘does not constitute constitutionally ineffective assistance of counsel.’ ” United States v. Cook, 45 F.3d 388, 393 (10th Cir.1995) (quoting United States v. Dixon, 1 F.3d 1080, 1084 n. 5 (10th Cir.1993)); accord Orange, 447 F.3d at 797; cf. Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (“[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.” (citing Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983))). A. Constructive Amendment Claim In his application, Mr. Ciocchetti first asserts that his trial attorneys rendered constitutionally ineffective assistance of counsel by failing to object to the constructive amendment of the Indictment. Count Three of the Indictment provided: On or about November 29, 2006, at Gillette, in the District of Wyoming, the Defendant, ANTHONY L. CIOCCHETTI, did knowingly make materially false statements for the purpose of influencing the actions of Bank of the West, the deposits of which were then insured by the Federal Deposit Insurance Corporation, and in connection with the Defendant’s acquisition of two lines of credit totaling $125,500, which statements included: the use of false IRS Individual Tax Returns.... R. at 255 (Dist. Ct. Order Denying Mot. to Vacate Sentence Pursuant to 28 U.S.C. § 2255, filed Nov. 3, 2010) (emphasis added). At trial, however, the government failed to prove the IRS tax returns were false, and a jury instruction was subsequently submitted as to Count Three that replaced the IRS tax returns with a Mer rill Lynch account statement that had been proven false. As he did before the district court, Mr. Ciocchetti argues that this change resulted in a constructive amendment of the Indictment. Furthermore, he claims that “counsel ought to have objected to the constructive amendment, if for no other reason than it came after defense rested.” Aplt. Combined Opening Br. & COA Appl. at 16. The district court dismissed Mr. Ciocchetti’s constructive-amendment claim on the grounds that, at most, the jury instruction effectuated a non-prejudicial variance, rather than a constructive amendment, and thus his attorneys were not ineffective for failing to challenge it. Reasonable jurists could not disagree with this resolution. A constructive amendment occurs when the Government, through evidence presented at trial, or the district court, through instructions to the jury, broadens the basis for a defendant’s conviction beyond acts charged in the indictment. To constitute a constructive amendment, the district court proceedings must modify an essential element of the offense or raise the possibility that the defendant was convicted of an offense other than that charged in the indictment. Where an indictment properly pleads violation of a statute, and the defendant was not misled about the nature of the charges, his substantive rights are not prejudiced. United States v. Cruz-Rodriguez, 570 F.3d 1179, 1182 (10th Cir.2009) (quoting United States v. Van Tieu, 279 F.3d 917, 921 (10th Cir.2002)) (internal quotation marks omitted); accord United States v. Farr, 536 F.3d 1174, 1180 (10th Cir.2008). A constructive amendment “is reversible per se.” United States v. Vigil, 523 F.3d 1258, 1265 (10th Cir.2008). In contrast, “[a] simple variance arises when the evidence adduced at trial establishes facts different from those alleged in the indictment, and triggers harmless error analysis.” United States v. Sells, 477 F.3d 1226, 1237 (10th Cir .2007). The district court was clearly correct in its determination that the trial court’s substitution of the Merrill Lynch account statement for the IRS tax returns in the jury instruction did not amount to a constructive amendment. The Indictment charged Mr. Ciocchetti in general terms, indicating that the false statements included the IRS tax returns. This language broadened rather than limited the Indictment, thereby allowing the government to use evidence beyond the IRS tax returns to show the use of false statements without “misle[ading Mr. Ciocchetti] about the nature of the charge[ ]” against him. Cruz-Rodriguez, 570 F.3d at 1182 (emphasis added) (quoting Van Tieu, 279 F.3d at 921) (internal quotation marks omitted); see Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (stating that, under an indictment “drawn in general terms,” a conviction might rest on a showing of evidence beyond that which is specifically identified in the indictment); cf. United States v. Rivera, 837 F.2d 906, 929 (10th Cir.1988) (“[A]n indictment may be drafted in general terms so long as it apprises the defendant of the nature of the charge against him.”), vacated on other grounds, 900 F.2d 1462 (10th Cir.1990) (en banc). Thus, Mr. Ciocchetti fails to satisfy the first prong of Strickland: in not advancing the clearly meritless proposition that the jury instruction resulted in a constructive amendment, his attorneys’ performance did not “f[a]ll below an objective standard of reasonableness.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also Cook, 45 F.3d at 393 (noting that counsel is not ineffective for failing to bring meritless claims); cf. United States v. Gibson, 55 F.3d 173, 179 (5th Cir.1995) (“Counsel is not required by the Sixth Amendment to file meritless motions.”). Furthermore, even if we assume, arguendo, that the government’s substitution of the Merrill Lynch statement resulted in a simple variance, Mr. Ciocchetti — as the district court noted — was not prejudiced by it, and, as a result, his attorneys’ failure to raise a challenge based upon this substitution cannot satisfy the second prong of Strickland either. “A variance will cause a conviction to be overturned only when ... ‘the defendant is prejudiced in his defense because he. cannot anticipate from the indictment what evidence will be presented against him or is exposed to the risk of double jeopardy.’ ” United States v. Hamilton, 992 F.2d 1126, 1130 (10th Cir.1993) (quoting Hunter v. New Mexico, 916 F.2d 595, 599 (10th Cir.1990)). Neither situation is applicable here. First, Mr. Ciocchetti received adequate notice that the veracity of the Merrill Lynch account statement was at issue — it was listed in the Indictment under another charge, and Mr. Ciocchetti defended against it at trial. See United States v. Boston, 718 F.2d 1511, 1516 (10th Cir.1983) (“We ... believe that Boston had ample notice from the indictment of the acts for which he was to be tried. The convictions were not based on facts outside the scope of the indictment [as a whole] .... ” (citation omitted)); United States v. Tomasetta, 429 F.2d 978, 979 (1st Cir.1970) (recognizing that the “question is whether the indictment as a whole conveys sufficient information to properly identify the conduct relied upon by the grand jury in preferring the charge” (emphasis added)); see also United States v. Winters, 210 F.3d 391, 2000 WL 376619, at *3 (10th Cir. Apr.13, 2000) (unpublished table decision) (“The indictment in this case, read as a whole, clearly appraised Withers of the charges against him and, thus, was sufficient.” (footnote omitted)). Second, the change between the Indictment and the jury instruction did not expose Mr. Ciocchetti to a potential double-jeopardy risk because, “[f]or purposes of barring a future prosecution, it is the judgment and not the indictment alone which acts as a bar, and the entire record may be considered in evaluating a subsequent claim of double jeopardy.” United States v. Whitman, 665 F.2d 313, 318 (10th Cir. 1981) (emphasis added) (quoting United States v. Henry, 504 F.2d 1335, 1338 (10th Cir.1974)) (internal quotation marks omitted); see also Boston, 718 F.2d at 1515. The record in this case clearly identifies the basis for Mr. Ciocchetti’s convictions, giving him ample protection against future prosecution for the same crimes. Accordingly, even if a simple variance did occur, it was harmless, and Mr. Ciocchetti, therefore, cannot show prejudice as a result. Because his claim does not satisfy either prong of Strickland, Mr. Ciocchetti has failed to make a substantial showing of a denial of a constitutional right based on his attorneys’ failure to raise this challenge. Reasonable jurists could not disagree with this outcome. B. Failure to Adequately Cross-Examine Claim Mr. Ciocchetti next maintains that his attorneys were constitutionally ineffective because they failed to adequately cross-examine Feron Ferguson, the president of Pinnacle Bank, regarding two insufficient funds checks that eventually served as the basis for his conviction of bank fraud, in violation of 18 U.S.C. § 1344. Mr. Cioc chetti claims that Mr. Ferguson “knew when he received the January 2 and 6 checks that they were not good,” and that this “defeats any argument that [he] intended to defraud the Pinnacle Bank through the presentment of these checks.” Aplt. Combined Opening Br. & COA Appl. at 18. At trial, however, Mr. Ferguson denied knowing the accounts were overdrawn when he attempted to deposit the two checks — totaling $90,000 — that Mr. Ciocchetti had given him. Mr. Ciocchetti argues that he provided his attorneys with strong evidence to the contrary, and that they nevertheless refused to adequately challenge Mr. Ferguson’s testimony. He contends that his attorneys’ actions were blatantly prejudicial as, had his attorneys “cross-examined [Mr. Ferguson] effectively, the jury would have seen through his lies in an instant.” Id. at 19. We need not tarry long on this issue. Even assuming that Mr. Ciocchetti’s attorneys should have more vigorously questioned Mr. Ferguson, and thus the first prong of the Strickland test was met, Mr. Ciocchetti cannot show prejudice as a result. “Under § 1344, ‘the intent necessary for a bank fraud conviction is an intent to deceive the bank in order to obtain from it money or other property.’ ” United States v. Gallant, 537 F.3d 1202, 1223 (10th Cir.2008) (emphasis added) (quoting United States v. Kenrick, 221 F.3d 19, 26-27 (1st Cir.2000) (en banc)). Accordingly, we have held that “[i]t is the financial institution itself — not its officers or agents — that is the victim of the fraud [18 U.S.C. § 1344] proscribes.” United States v. Waldroop, 431 F.3d 736, 742 (10th Cir.2005) (second alteration in original) (quoting United States v. Saks, 964 F.2d 1514, 1518-19 (5th Cir.1992)) (internal quotation marks omitted); see also United States v. Rackley, 986 F.2d 1357, 1361 (10th Cir.1993) (“Defendant confuses the notion of defrauding a federally insured bank with the idea of defrauding its owner or directors. It is the financial institution itself — not its directors or agents — that is the victim of the fraud the statute proscribes.”). “Thus, even if [a bank official] kn[ows] the true nature of [a] transaction[ ], the institution ] could nevertheless be defrauded.” Rackley, 986 F.2d at 1361; see also Gallant, 537 F.3d at 1224 n. 13 (collecting cases). As a result, even had Mr. Ciocchetti’s attorneys done exactly what he now claims they should have done, and thereby revealed that Mr. Ferguson knew there were insufficient funds in the relevant accounts to cover the disputed checks, that would not preclude — as Mr. Ciocchetti seems to believe — -a finding that he committed bank fraud. At most, it would have shown that Mr. Ferguson was complicit in Mr. Ciocchetti’s fraud, and “[j]ust because [Mr. Ferguson] w[as] complicit in the scheme does not mean that [Pinnacle Bank], as an institution, knew or approved of what [Mr. Ciocchetti] w[as] doing.” Gallant, 537 F.3d at 1225. Consequently, Mr. Ciocchetti cannot establish prejudice based upon his attorneys’ failure to cross-examine Mr. Ferguson, and therefore cannot satisfy the second prong of the Strickland standard. Thus, reasonable jurists could not disagree with the district court’s resolution of this claim. C. Booker Sentencing Claim In addition, Mr. Ciocchetti claims that his attorneys were ineffective in failing to object when, at sentencing, the district court determined — allegedly in error — that he intended losses of over $5,000,000. The court’s finding, which was based on a preponderance of the evidence, resulted in the court adding eighteen points to his base offense level of seven. This, in turn, yielded an advisory Guidelines range of fifty-seven to seventy-one months of imprisonment, well above the thirty to thirty-seven month range that he claims would otherwise be applicable. Mr. Ciocchetti maintains that “the lower court burst through its prescribed jurisdiction and authority” when it “decided on a civil standard of preponderance of the evidence” that the total amount actually exceeded the $232,724.74 in losses that the jury found using the beyond-a-reasonable-doubt standard. Aplt. Combined Opening Br. & COA Appl. at 26. As he understands it, “[a]ny additional alleged losses were separate crimes [from the crimes of conviction] ... and were not jury-found,” and therefore the district court “exceeded [its] jurisdiction when [it] found [him] guilty on charges which carried their own prison-time sanctions, then used this preponderance-of-the-evidence-found-guilt to ... impose[ ] a sentence of up to three years longer than the ... range authorized.” Id. at 28-29. Mr. Ciocchetti believes that, “[h]ad counsel not provided ineffective assistance [by not challenging the district court’s actions in this regard], there is more than a reasonable probability that the result of the sentencing proceeding and/or the direct appeal would have been different.” Id. at 28. The district court found no merit to Mr. Ciocchetti’s underlying claim, and we agree. Under the post-Booker advisory Guidelines regime, “[t]he Sixth Amendment is not violated when a district court finds additional facts by a preponderance standard in order to calculate an advisory Guidelines range.” United States v. Urbano, 563 F.3d 1150, 1156 (10th Cir.), cert. denied,—U.S.-, 130 S.Ct. 434, 175 L.Ed.2d 297 (2009); accord United States v. Magallanez, 408 F.3d 672, 685 (10th Cir.2005); United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir.2005). There is nothing in the record to suggest that the district court treated the calculated Guidelines range as anything other than advisory, and consequently there was no constitutional violation in the district court’s use of facts found only by a preponderance of the evidence to enhance Mr. Ciocchetti’s sentence. See United States v. Townley, 472 F.3d 1267, 1276 (10th Cir.2007) (“Ap pellant incorrectly argues that Booker error occurs any time a district court enhances a sentence based on facts not found by a jury. Rather, after Booker, a district court is not precluded from relying on judge-found facts in determining the applicable Guidelines range so long as the Guidelines are considered as advisory rather than mandatory.”).
1533874-27203	CALABRESI, Circuit Judge. Petitioner-Appellant Shih Wei Su has brought a habeas corpus petition under 28 U.S.C. § 2254 challenging his conviction in New York state court on two counts of attempted murder in the second degree, two counts of assault in the first degree, and one count of criminal possession of a weapon in the second degree. He claims that the prosecution misled the trial court concerning the cooperation agreement it had with a key witness, Jeffrey Tom, and that the prosecution knowingly allowed Tom to perjure himself. The district court (Ross, •/.) first found that the state courts that had reviewed Petitioner’s conviction had adjudicated his prosecutorial misconduct claim on the merits. The court then held that the prosecution had breached both (a) its duty to disclose exculpatory evidence, see, e.g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (b) its duty not to elicit testimony it knows to be false, see, e.g., Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The district court did not, however, grant the writ of habeas corpus. It concluded that Petitioner had not shown sufficient prejudice to justify overturning his conviction. Nevertheless “on the question of whether petitioner has demonstrated that the prosecutorial misconduct so prejudiced his conviction as to undermine confidence in the jury’s verdict,” the court granted a certificate of appealability. Joint Appendix at 6. We agree with the district court that the prosecution knowingly elicited false testimony from a crucial witness with regard to a cooperation agreement that existed between that witness and the prosecution. But we believe the district court erred in its analysis of the prejudice stemming from the prosecutor’s misconduct. Because we reverse the order of the district court on this ground, we do not reach any of Petitioner’s additional allegations of prosecutorial misconduct, neither those linked to other putative lies by the same witness nor those that stemmed from the asserted Brady violations. The shooting The criminal charges against Petitioner arose out of a shooting that occurred at a pool hall in Queens on January 4, 1991. Tom — the witness whose testimony is the subject of the habeas petition — testified that he entered the pool hall on that date and, together with two individuals he said were fellow members of a street gang known as the Green Dragons, sat down near the entrance. Tom further testified that there were “close to maybe 30” other people there at the time. He added that, shortly thereafter, • three men and one woman came from the back of the establishment toward the entrance to pay for a pool table. The table was near where Tom and his companions were sitting. Tom testified that he knew two of the four by name: Petitioner, who was allegedly wearing a sling on his right arm, and a man Tom called Jimmy. Tom stated that the four were members of a rival gang— known as the White Tigers — which frequented the pool hall. Tom added that the Dragons and the Tigers had not previously engaged in violence against each other. They had been hostile but the manifestation of this rivalry had been “[j]ust basically words said back and forth.” Consistent with this, when Petitioner and his companions approached the counter to pay for a pool table, there were “stares going back and forth” between the gangs. The staring lasted about a minute. According to Tom, however, after the White Tigers had paid for their table, he heard Petitioner say to Jimmy, “[W]hen I leave shoot them.” Tom reiterated a slight variation — “Shoot them when I leave.” — on cross-examination and added that he remembered the statement distinctly because Petitioner had said it loudly- Tom continued that Petitioner, having made the statement, walked out of the pool hall. At that point, the man Tom knew as Jimmy allegedly removed his jacket, revealing a gun. Tom then ducked, heard shots fired, and, a minute later, got up to find one of his companions with a gunshot wound. Tom says he quickly ran outside and saw Petitioner and the other White Tigers “half way down the block already running.” Tom did not explain what he and his companions did upon hearing Petitioner’s “loud” order to shoot them or while Petitioner was walking out of the pool hall. The rest of the testimony at trial, though on the whole supporting Tom’s testimony, was inconclusive. Thus Matt Sa-coll, who ran the pool hall and allegedly had known Petitioner for several months, testified that he did not recall seeing Petitioner at the pool hall on the night in question. Sacoll said that while putting away tools behind the counter, he heard gunshots. Looking up, he saw a woman and two men, one of whom had a gun; the three then fled the scene. Petitioner, he asserted, was not one of the three. Similarly, one of Tom’s two companions said Petitioner was the person who had said, “Shoot them.” But the other, while stating that the person who had given the order to shoot was wearing a sling, could not identify Petitioner as the perpetrator. There was, however, medical evidence that Petitioner had been wounded in the arm several days before the shooting. But Donna Wan, the proprietor of a beauty shop, testified that Petitioner had been in her shop just before January 1 to have his hair washed. Although she noted stitches and a nasty wound to Petitioner’s upper arm, Petitioner was not then wearing a sling. None of the other “maybe 30” people in the pool hall were called on by the state to confirm the “loud” order or that Petitioner had given it. Tom’s cooperation agreement The issue before us arises from testimony Tom gave at Petitioner’s trial regarding Tom’s arrest for grand larceny and the ensuing plea and sentencing agreement Tom made with the prosecution. About one month after Petitioner’s arrest for the pool hall shooting, Tom was charged with attempted grand larceny in the second degree. In September 1991, several months before Petitioner’s trial, Tom pleaded guilty. In chambers, before Tom’s judge, Tom’s prosecutor gave his understanding of the condition of the plea Tom was making: Condition of the plea[,] the terms and conditions of the plea, as I understand them, Judge, is that the defendant will plead to the only remaining count in the indictment and be offered a promise of [Youthful Offender status] and probation. Further conditioned upon his continued cooperation with my office, which may include offering testimony, truthful testimony in a homicide case with which he’s been cooperating .... Toms’s defense counsel and Tom himself then confirmed that this was the agreement. His counsel said, “My client has testified in the Grand Jury and is prepared to continue with whatever is needed, including, viewing line-ups, giving testimony, etc.” These discussions were sealed by Tom’s court, and Tom proceeded to enter his plea. In so doing, Tom specifically answered in the affirmative the judge’s question as to whether Tom had attempted to steal money from a restaurant owner “by means of extortion, in that [Tom] attempted to steal that money by instilling in [the owner] a fear [that] if she did not turn over the money to [Tom], that [he would] cause her injury.” Subsequently, at Tom’s sentencing, Tom’s court indicated that Tom had pleaded guilty and “was promised five years probation and youthful offender treatment” (emphasis added). The assistant district attorney then said, ‘Your Honor, I ask you to honor the negotiated plea, and I also ask to reiterate the fact that this defendant [Tom], as part of his plea and as part of the promised sentence, was to give truthful testimony as he did in the Grand Jury and the trial that’s ongoing in part J-10.” After Tom’s defense counsel waived the opportunity to speak, the court stated, “Consistent with the promise made, the sentence of the Court is five years probation.” Before the start of Petitioner’s trial, Petitioner’s prosecutor disclosed that Tom had pleaded guilty and was awaiting sentence. But while the prosecutor went on to say that Tom’s judge “basically told the defendant that if he pled to the indictment, ... he would get probation,” Petitioner’s prosecutor also stated that while “there might have been some talk about [Youthful Offender treatment],” “[t]here was technically no agreement, as far as [the prosecutor knew.] [N]othing was put or the record other than bench conferences that [Tom] continued to cooperate as a witness on this case and testify honestly during this trial if he were called as a witness.” On direct examination at Petitioner’s trial, and on the same day as Tom’s sentencing, the prosecutor elicited the following testimony from Tom: Q: Can you tell us whether or not you have been sentenced on that case? A: Yes. I have. Q: Did the District Attorney’s office make any promise to you with regard to what your sentence would be? A: No. Q: Would you please tell us what if anything the District Attorney’s office, either myself or another Assistant District Attorney, promised you with regard to a sentencing on that case [sic]? A: Nothing at all. Q: We had contacted you and wanted you to continue to be a witness on this case? A: Yes. Q: Did the Judge that you stood in front of make any recommendation about what your sentence should be? Q: The judge in the courtroom where you were sentenced what if anything did that Judge do with regard to your sentence? A: He didn’t promise me anything. Q: Did he in fact sentence you? A: Yes. Q: And he sentenced you prior to your coming to Court to testify here? A: Yes. Q: What was the sentence of the Court? A: He gave me five years probation. Q: Did the Judge give you youthful offender treatment? A: Yes. On cross-examination, Petitioner’s counsel did not make any further inquiry into Tom’s plea agreement. Tom was asked, however, about the nature of his conviction and responded, ‘Well, maybe a month before [my arrest] I went in and I asked the owner for money.” Petitioner’s counsel then asked, “You just asked him politely for money, is that it?” Tom answered, ‘Yes.” When questioned about whether he had made any threat, Tom replied that he had not. Asked, further, if this is what he told the judge when he pleaded guilty, Tom said that he told the judge that he and his friend had gone into the store and asked for money. Out of the hearing of the jury, defense counsel argued to the judge and the prosecutor that Tom had lied about the circumstances of the attempted larceny. Counsel said to the prosecutor, “He’s lying right there, you have a responsibility — he extorted money out of that guy.” The prosecutor did not, however, make any attempt to correct Tom’s manifestly false statement. Indeed, when defense counsel mentioned the implausibility of Tom’s tes timony on this point in summation, the prosecutor, unsuccessfully, objected. And in her summation, despite her knowledge to the contrary, the prosecutor made a generalized effort to bolster Tom’s credibility. “[T]he other two witnesses [, one of whom was Tom,] were honest with you. [Defense counsel] would want you to believe ... first of all, that they were evasive. I submit they were not.” “Ladies and gentlemen of the jury, I submit to you that what they told you was truthful, and honest.” The Procedural History of this Case and its Effect on the Standard of Review On direct appeal in state court, Petitioner, in addition to claiming, inter alia, that the evidence against him was insufficient to support a conviction, asserted (a) that Tom had testified falsely when he stated that he had not received a promise of leniency from either the judge or the prosecution in exchange for his testimony against Petitioner and (b) that the prosecution’s elicitation of that testimony was unconstitutional and prejudicial. The state argued both that this assertion was without merit and that it was not preserved for appellate review because Petitioner failed to provide an adequate record on appeal to support the claim and failed to object at trial. The Appellate Division summarily affirmed the conviction. It rejected Petitioner’s argument that the evidence was insufficient to support the guilty verdict and stated that “[t]he defendant’s remaining contentions are either unpreserved for appellate review or without merit.” People v. Shih-Wei Su, 213 A.D.2d 502, 624 N.Y.S.2d 904, 904 (1995). Since the prose-cutorial misconduct allegation was among Petitioner’s “remaining contentions,” it is not clear from the face of the order whether the Appellate Division adjudicated this allegation on the merits, or decided it on procedural grounds. See Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir.2000) (“[W]hen a state court uses language such as ‘[t]he defendant’s remaining contentions are either unpreserved for appellate review or without merit,’ ... [t]he state court has not adequately indicated that its judgment rests on a state procedural bar, and its reliance on local law is not clear from the face of the court’s opinion.” (citation omitted)). Over the ensuing years, Petitioner, in various ways, sought to raise in state courts the issue that he has now brought before us. We need not, however, examine these claims in detail. Some of them seem to have been designed to show cause for possible procedural defects, e.g., by attacking the effectiveness of counsel. Others involved allegations that went directly to the merits, e.g., alleging newly discovered evidence. The answers given by the state courts, moreover, do not make clear whether the denials of these claims were on procedural grounds or were merits-based. What might, however, be a mare’s nest is readily avoided. The state has waived the argument that Petitioner’s claims are procedurally barred, thereby obviating the need for us to examine whether there was federally valid cause and prejudice, see, e.g., Jones v. Keane, 329 F.3d 290, 296 (2d Cir.2003), for such a default. Instead, the state asserts that the decisions made by the state courts constituted an adjudication on the merits of Petitioner’s claims, and as such require us to give those decisions deference under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (“AEDPA”), as interpreted by this court in Sellan v. Kuhlman, 261 F.3d 303 (2d Cir.2001). In fact, the degree of deference due state holdings in circumstances such as those before us is, under our cases, anything but clear. Nevertheless, since (a) the state manifestly can waive procedural objections, see, e.g., Cossel v. Miller, 229 F.3d 649, 653 (7th Cir.2000), and (b) treating the state decisions as merit adjudications and giving them full AEDPA deference, we conclude that a grant of habeas is required, we need not — and hence do not — resolve the complex questions that might arise from this case’s long and tortured procedural background. Accordingly, we now turn to why we believe that the state court’s adjudication of the Due Process claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” the standard of review required under the AEDPA. 28 U.S.C. § 2254(d)(1). The State’s Knowing Elicitation of Perjury Since at least 1935, it has been the established law of the United States that a conviction obtained through testimony the prosecutor knows to be false is repugnant to the Constitution. See Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). This is so because, in order to reduce the danger of false convictions, we rely on the prosecutor not to be simply a party in litigation whose sole object is the conviction of the defendant before him. .The prosecutor is an officer of the court whose duty is to present a forceful and truthful case to the jury, not to win at any cost. See, e.g., Jenkins v. Artuz, 294 F.3d 284, 296 n. 2 (2d Cir.2002) (noting the duty of prosecutors under New York law “to seek justice, not merely to convict”). Despite the fundamental nature of the injury to the justice system caused by the knowing use of perjured testimony by the state, the Supreme Court has not deemed such errors to be “structural” in the sense that they “affect[] the framework within which the trial proceeds.” United States v. Feliciano, 223 F.3d 102, 111 (2d Cir.2000) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (brackets in original)). Structural errors are those that “ ‘so fundamentally undermine the fairness or the validity of the trial that they require voiding [the] result [of the trial] regardless of identifiable prejudice.’ ” Id. (quoting Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir.1996)). Instead, even when a prosecutor elicits testimony he or she knows or should know to be false, or allows such testimony to go uncorrected, a showing of prejudice is required. But the Supreme Court has made clear that prejudice is readily shown in such cases, and the conviction must be set aside unless there is no “reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); see also United States v. Wallach, 935 F.2d 445, 456 (2d Cir.1991) (citing Agurs and adding that the Supreme Court cases mean that “if it is established that the government knowingly permitted the introduction of false testimony reversal is virtually automatic” (quotation marks omitted)). This then is the “clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), that we must apply in the case before us. And to do this we must ask: (1) whether false testimony was introduced, (2) whether that testimony either was or should have been known to the prosecution to be false, (3) whether the testimony went uncorrected, and (4) whether the false testimony was prejudicial in the sense defined by the Supreme Court in Agurs. Whether there was testimony known to the 'prosecutor to be false As the district court found, the first three prongs of the inquiry are easily met. Tom’s statement made in open court that he was not promised anything by the sentencing judge or by the prosecution in exchange for his testimony is, in fight of the transcript of Tom’s allocution and sentencing, obviously false. It is also clear that Tom lied about the nature of the attempted larceny charge. The prosecution not only allowed both of these misrepresentations to go uncorrected, but it bolstered Tom’s credibility in summation, even going so far as to object when Petitioner’s defense counsel expressed incredulity that Tom’s larceny arrest came after he “politely” asked the restaurant proprietor for money. The prosecutor in Petitioner’s case was apparently not the one who had made the plea deal with Tom. But the Supreme Court has held that that doesn’t matter. See Giglio, 405 U.S. at 154, 92 S.Ct. 763. “The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.” Id. It follows that, before a prosecutor puts to the jury evidence that a witness has made no deal with the government, he or she has a fundamental obligation to determine whether that is so. That obligation was not met here. Whether there was sufficient prejudice Having agreed with the district court that the prosecution failed in its duty to avoid eliciting false testimony, we are left to decide whether this breach injured the defendant in the relevant way. “A new trial is required if the false testimony could in any reasonable likelihood have affected the judgment of the jury.” Giglio, 405 U.S. at 154, 92 S.Ct. 763 (quotation marks and alterations omitted). A. As far as the Supreme Court cases are concerned, this is all that is required. But in United States v. Helmsley, 985 F.2d 1202, 1208 (2d Cir.1993), we held that, at least for purposes of a collateral attack, a defendant is normally required to exercise due diligence in gathering and using information to rebut a lying prosecution witness. Having so held in Helmsley, we could hardly deem unreasonable a state court decision made on a similar ground. And so we must examine whether it would be unreasonable to hold that Petitioner failed, in the instant case, to exercise due diligence. Petitioner’s only possible lack of diligence was his failure to cross-examine Tom about the existence of a sentencing deal. Significantly, the state does not argue that Petitioner knew the details of the sealed agreement or that Petitioner even knew for sure that there was a deal. Rather, it contends only that Petitioner had some information that a deal might have been made. But, Petitioner’s prosecutor expressly (a) falsely denied before trial that an actual agreement had been reached with Tom and (b) falsely established on direct examination that no promises with respect to Tom’s sentence had been made to Tom either by the state or by the sentencing judge. In other words, in order to do what the state suggests Petitioner should have done, Petitioner would have been required to assume that the prosecutor had lied. This would involve enormous tactical danger. And it seems hardly reasonable to require a defendant to risk opening the door to adverse testimony concerning a sentencing agreement from a government witness on the chance that the prosecutor had both intentionally mischaracterized that witness’s dealings with the government before trial and knowingly elicited false testimony denying that an agreement had been made. But even apart from that, the Supreme Court, in an analogous situation, has made clear that conscientious counsel can rely on prosecutors to live up to their obligations. See Strickler v. Greene, 527 U.S. 263, 286-87, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (“The presumption, well established by tradition and experience, that prosecutors have fully discharged their official duties is inconsistent with the novel suggestion that conscientious defense counsel have a procedural obligation to assert constitutional error on the basis of mere suspicion that some pros-ecutorial misstep may have occurred.” (internal citation and quotation marks omitted)). It follows that when a prosecutor says that there was no deal and later elicits testimony from a witness denying the existence of a deal, it would be an unreasonable application of federal law, as determined by the Supreme Court, to fault the defendant for not proceeding in his cross-examination on the assumption that the prosecutor is a liar. B. We, therefore, move to apply directly the test given to us by the Supreme Court, which has told us that convictions in cases of this sort must be reversed unless the evidence was so overwhelming that there is no “reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs, 427 U.S. at 103, 96 S.Ct. 2392. It is not disputed that Petitioner’s conviction depended significantly on Tom’s testimony. Indeed the district court described him as “[t]he prosecution’s chief witness against petitioner.” Shih Wei Su v. Filion, No. 01-CV-3799, slip op. at 2 (E.D.N.Y. Oct. 7, 2002). While a likely associate of Tom’s also identified Petitioner as the one who gave the order to shoot, another did not, and there was other acceptable testimony running in favor of Petitioner. The case was not overwhelming either way. On the one hand, the evidence was surely sufficient to uphold the jury conviction, and would have been so without Tom’s testimony. On the other, the jury could also have perfectly reasonably acquitted Petitioner even without being told about the plea agreement. The additional evidence that Tom had a deal with prosecutors and with his sentencing judge was certainly material to assessing Tom’s credibility, and that credibility could not help but be central to the deliberations of any reasonable jury sorting through the facts of the case. And, as the Supreme Court said in Napue: “The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.” Napue, 360 U.S. at 269, 79 S.Ct. 1173. Here Tom’s possible interest in testifying falsely was anything but subtle. And that interest, as the district court found, was kept from the jury, in substantial part by the prosecutor’s own behavior. There was, in other words, as we found in Jenkins, a “heightened opportunity for prejudice^ since] the prosecutor ... [was] complicit in the untruthful testimony.” 294 F.3d at 295. In Jenkins, despite our grant of AEDPA deference, the conviction was reversed. 294 F.3d at 291, 297. Likewise here, we conclude that it would be an unreasonable application of the standard for prejudice clearly set out by the Supreme Court, in cases like Napue, Giglio, and Agurs, to find insufficient prejudice in this case. Conclusion There being no question that false testimony was introduced to bolster the credibility of the principal prosecution witness and there being no reasonable application of federal law under which it could be said that the prejudice suffered by Petitioner fell short of the legal standard established by the Supreme Court of the United States, we REVERSE the district court’s denial of Petitioner’s request for a writ of habeas corpus, and we REMAND the case to that court with instructions to grant the writ and to order Petitioner released unless the state affords him a new trial within sixty days. . Both of these individuals denied at trial that they were members of the Green Dragons, . The federal district court considering the habeas petition now before us found Tom's testimony that he had been sentenced prior to testifying against Petitioner to be false. Our review of the record is inconclusive on this point. The sentencing definitely occurred on the same day that Tom appeared as a witness in this case. The state’s contention that the sentencing occurred first is based on the facts that (1) Tom’s prosecutor greeted Tom's sentencing court by saying, "Good morning, your Honor,” whereas Tom’s testimony against Petitioner in Petitioner’s trial did not conclude until 12:40 p.m., and that (2) Tom accurately described in his testimony the sentence he actually received. Neither' of these facts is determinative and there is evidence pointing the other way on the basis of which the district court made its finding. In fact, the state and Petitioner have not, despite all the years that this case has been under review, produced a definitive answer to this question. We need not, however, resolve the issue of the timing of Tom’s sentence in relation to his testimony, and whether Tom lied about it, since we find other testimony by Tom to be clearly false and sufficient to compel us to grant the writ of habeas corpus.
188226-10651	RICH, Judge. This appeal is from the decision of the Board of Patent Interferences awarding priority of the fifteen counts in interference No. 96,531 to the senior party, Joseph S. Wanberg, patentee of U. S. Patent No. 3,369,545, issued February 20, 1968, on an application filed September 25, 1964, entitled “Disposable Diaper with an Integral Container and Method for Disposal” and assigned to The Kendall Company. Appellant, Dale A. Gellert, is junior party, involved on his application serial No. 498,268, filed October 20, 1965, entitled “Disposable Diaper with Integral Disposal Bag” and assigned to Proctor and Gamble Company. We affirm. The Invention The invention to which all of the fifteen counts in issue are directed is a disposable or throw-away diaper having a fluid-impervious bag or pouch integrally attached to the outer or rear side of the diaper, the pouch being reversible, i. e., capable of being turned inside out, after the diaper has been used, to contain the soiled diaper and provide a convenient means for its disposal. Nine of the counts are directed to the disposable diaper structure and six to the method of manipulating the diaper to effect reversal of the pouch and form a container for the soiled diaper. The parties have treated all of the counts as standing or falling together on the issue before us. Representative are the broadest article and method counts, 1 and 5: 1. A disposable diaper having a length and width sufficient to fit around and cover the lower portion of the torso of a human body from the waist at the back of the body over the crotch to the waist of the front of the body, said diaper comprising a supple, fluid absorbent body and pouch integrate [sic] therewith suitably reversible for covering envelopment of a fluid-pervious surface of the diaper after use, said fluid absorbent body having a front side and a back side, said front side having a fluid-pervious surface for contact with a body, said back side having an impervious surface for preventing strike-through of fluid absorbed in said absorbent body, and said pouch having a wall portion thereof common with at least a portion of said impervious surface at the back side of said absorbent body and the remainder of the pouch wall comprising a supple, impervious sheet attached to said body whereby said impervious surface and said sheet form opposing wall portions of said pouch and define the pouch cavity at the back of said absorbent body when the absorbent body is in use. 5. In disposing of an absorbent article upon and in which are collected body fluids, said absorbent article comprising a supple fluid absorbent body having a fluid pervious front surface soiled by said fluids and a fluid pervious back surface and a fluid impervious sheet overlying said back surface and attached to said absorbent article to form a pouch therewith wherein said sheet and said body constitute opposing wall portions of the pouch defining the pouch cavity at the back of said absorbent article, the method comprising turning said pouch inside-out by grasping a wall portion inside said cavity and moving said wall portions with respect to each other into a position in which the respective surfaces of said wall portions are positioned in substantially the reverse of their original positions so that said back surface of the absorbent body is disposed to the exte rior and the soiled front surface is disposed to the interior of the cavity formed upon turning said pouch inside-out. The Issue The single determinative issue, under the view we take of this case, is whether Wanberg has established an actual reduction to practice prior to Gellert’s conception in May, 1963. The Facts Surrounding Wanberg’s Reduction to Practice While some of the facts surrounding the Wanberg reduction to practice are disputed, it is clear that Wanberg on at least one occasion made up a sample diaper embodying the invention and demonstrated his concept of a reversible pouch to his superior at the Kendall Company by the following acts, which Wanberg alleges show a reduction to practice. A conventional disposable diaper, which had a single layer of polyethylene film backing, was modified by the addition of a second sheet of polyethylene affixed to the film backing of the conventional diaper by pressure sensitive adhesive tape along three edges thereof to form an integral pouch. Then Wanberg reached into the pouch with his hand and reversed the pouch so it was “inside out” and the diaper itself was inside the bag formed by the reversed pouch. We must determine whether this demonstration is sufficient to constitute a reduction to practice of the invention of the counts. It is appellant’s position that “a reduction to practice under the circumstances of this case requires more than merely demonstrating the reversibility of an unused diaper, i. e., the bare demonstration of its principle of operation.” What in essence is lacking, according to appellant, is the testing of this invention under circumstances actually representing or simulating in-use conditions of the disposable diaper which has as its ultimate purpose the containment of excrement emanating from a baby. Appellant’s Arguments Appellant made before the board several arguments why he believed the facts do not show a reduction to practice, being essentially the reasons why he believed the invention could only be reduced to practice by applying the diaper to an infant. These arguments are repeated before us. Appellant noted that the counts all contemplate use of the diaper on humans and define a structure which is reversible “after use” or “soiled by body fluids or excrements” or relate to a method of disposing of an article “in which are collected body fluids” and which has a “front surface soiled by said fluids” and argued that the fact that the claims contain such references should dispose of the contention that it was not necessary to put the diaper on an infant to reduce the invention to practice. In appellant’s view such claim limitations established what could only be the intended functional setting for the invention and anything short of such application was not a reduction to practice. Appellant also notes, as he did before the board, that without the application of the diaper to an infant, one could not be sure that the crushing and twisting of the diaper when in place upon an active infant would not so distort the pouch that it would no longer function upon reversal to contain the excrement. Finally, appellant questions the effect of pinning the diapers to hold them on the infant, in an apparent belief that the pinholes would so tear the pouch as to make it unable to contain the diaper upon reversal. On both of these points, the crushing and pinning, appellant cites the testimony of appellee’s witnesses, elicited upon cross examination, questioning to some extent whether the invention would work under these conditions. As to the effect of pinning, appellant further notes before us that “on June 20, 1969, Wanberg filed an application * * * [on another invention] which issued as U. S. Patent 3,585,999 on June 22, 1971 — some two months after the oral argument below,” in which Wanberg noted that the disposable diapers “are subject to tearing during or after the operation of inserting safety pins, thus * * * causing points of possible leakage at the tears.” Appellant notes correctly that this patent is not in evidence, but urges the court to take “judicial notice of it as a public record since it belies Wanberg’s contention, as well as the Board’s conclusion, that pin tearing was not a problem which should be taken into consideration.” However, we will not take judicial notice of this patent, which is not of record in the case and was not considered by the board. In re Land, 402 F.2d 801, 805, 56 CCPA 724, 728 (1968). TheBoard’s Decision The above and other arguments were all considered by the board which concluded that they were matters relating to commercialization of the invention. As far as reduction to practice was concerned, the board was not convinced that they would so affect the operation of disposal of the diaper by reversing the pouch as to negate reduction to practice. With respect to putting the diaper on an infant with its concomitant effect on the diaper and its disposal, the board said: We are not persuaded that the matter of pinning as distinguished from taping diapers in place and the possible tearability of the pouch are of any particular import with respect to reduction to practice of the article resulting from the addition of the pouch-forming sheet to a diaper as distinct from the basic commercial diaper. We are not concerned with a liquid-filled bag; we are concerned with a pouch for containing possibly, a very wet diaper, a very wet and solid-soiled diaper, a solid-soiled diaper or possibly only a slightly damp diaper. Therefore, we do not regard pin holes or tears that might appear in the additional pouch-forming sheet to be of such concern, as far as functioning as a pouch is concerned, as to negate its use in its intended manner as an enclosing pouch until final disposal can be effected. We can not accept the argument that the crushing of the article between the legs of an infant will so distort the pouch, having in mind the materials used and the thickness of the impervious sheets of the pouch, that the “effective reversal” of the pouch and diaper would be prevented or obstructed. As to the law of reduction to practice and the nature of this invention, the board said: However, we also appreciate the incontrovertible fact that the invention involved only the modification of a conventional disposable diaper in manner having no apparent direct effect on the article to perform the normal function of a diaper while at the same time providing a pouch for easy, transitory disposition or handling of the soiled diaper prior to its ultimate disposal. As Wanberg states at page 24 of his brief, and which is not denied by Gellert, * * * the basic Kendall disposable diaper itself was a standard article of commerce which Wanberg modified * * *, thus providing an additional feature for an additional optional purpose. Precisely the same thing could be said of the Proctor and Gamble Pampers and of Gellert’s activities. We note that even in the case of Chittick v. Lyons et al., supra [26 CCPA 1382, 104 F.2d 818, 42 USPQ 132 (1939)], the court indicated that all that is required for actual reduc tion to practice is that it be shown that it be reasonably certain that the subject matter will perform its intended function in actual service, (our emphasis)
576215-11181	GOODWIN, Circuit Judge. John Hillison, Murray Jacobson and Jeffrey Mansfield were each convicted of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841, based on evidence obtained on April 8 and 9, 1982. Each appellant appeals on the ground that the evidence used to convict him was obtained in violation of the Fourth Amendment. Jacobson additionally contends that the evidence was insufficient to support his conviction. We affirm the convictions of all three defendants. I FACTS On April 7, 1982, at about 2:30 p.m., federal drug agent Gary Kircher saw appellants Hillison and Jacobson arrive at San Diego International Airport on a flight from Denver, Colorado. Jacobson was carrying a briefcase and a rectangular canvas bag; Hillison carried a backpack. The two men proceeded directly to a car rental counter where Jacobson rented a car. Kircher decided that the pair merited further surveillance because they frequently glanced about and because they appeared unduly concerned about people standing nearby. After Hillison and Jacobson boarded the car rental shuttlebus, Kircher examined the rental agreement and found that the car was rented in the name of Murray Jacobson. He ordered surveillance of the pair as they left the airport in the rented car. The surveilling agent watched as Hillison and Jacobson stopped at an office supply store, which Jacobson entered. He emerged carrying paper goods. The two men then drove to the Pacific Shores Inn, where they checked in at about 3:30 p.m. The next day, at about 10:00 a.m. agents followed Jacobson to the Pacific Beach Post Office, where he left a package to be delivered via “priority mail” to an Illinois address. Agent Kircher immediately requested the Post Office to segregate this package from the normal flow of mail. Later in the morning, Flillison and Jacobson checked out of the Pacific Shores Inn. After their departure, drug agents inspected the vacated motel room, where they found brown wrapping paper and a brown paper bag that contained marijuana seeds. The investigating agents then summoned a narcotics detector dog to sniff the package Jacobson had mailed. The dog alerted strongly on the package. Based on this information, the agents obtained a warrant and searched the package at 5:00 p.m. They discovered 70,1 grams of cocaine inside. Meanwhile, other drug agents shadowed Hillison and Jacobson, who checked into another motel called the Inn at La Jolla. At this motel, the agents first observed appellant Mansfield, driving a gold Concord automobile with Hillison and Jacobson as passengers. A check on the car revealed that it had been rented in Las Vegas, Nevada, by a man giving the name "Jerry Thurston," the agents discovered that Mansfield had rented room 42 under the name Jeffrey Mansfield. Hillison and Jacobson had rented room 44. Hillison was later observed driving Mansfield on an errand to a liquor store. The three men spent the afternoon together between the two rooms. At 7:00 p.m., Mansfield left carrying a briefcase and a paper sack. Surveilling agents followed him to the residence of an unidentified woman. The next morning, Mansfield returned to the La Jolla motel, where he again met Hillison and Jacobson. Hillison and Jacobson left the motel shortly afterwards and drove back to the San Diego Airport, where they were arrested and searched. Packages containing over 100 grams of cocaine were found in each of Hillison's socks. At about 11:00 a.m. Mansfield left the motel. He stopped at a fast-food restaurant, where he was arrested by drug agents. Mansfield refused to give permission to search his car. The agents held Mansfield and the car in the restaurant parking løt for five hours, while they waited for issuance of a search warrant. During this period, another drug agent inspected Mansfield's vacated room at the La Jolla motel, finding marijuana seeds and debris. When the search was executed, the trunk of Mansfield's car was found to contain 258.1 grams of marijuana and 338.2 grams of cocaine. Each of the appellants moved to suppress the evidence against them, claiming that it had been obtained in violation of the Fourth Amendment. Each motion was denied. Each appellant was afterwards tried to the court on stipulated facts, and each was convicted. II DISCUSSION A. Fourth Amendment Challenge by Hillison and Jacobson. The procedure used to investigate, arrest, and search appellants Hillison and Jacobson violated no Fourth Amendment rights~ The initial phase of investigation was triggered by nothing more than the subjective assessment by drug agents that Hillison and Jacobson behaved suspiciously in the San Diego Airport. While the agents' observations might under some circumstances justify a brief stop for questioning, see United States v. Post, 607 F.2d 847, 850 & n. 3 (9th Cir.1979); United States v. Chatman, 573 F.2d 565, (9th Cir.1977), they certainly did not give probable cause to suspect criminal activity, see Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1323 n. 7, 75 L.Ed.2d 229 (1983). The subsequent observations that Hillison and Jacobson purchased supplies, checked into a motel, and later mailed a package did not add any new incriminating information to the agents' knowledge. If probable cause were required for the segregation of Jacobson's mailed package, the segregation and detention of the package would not have been authorized by law. The Supreme Court has held, however, that probable cause is not needed to support a brief segregation and delay of a mailed package. United States v. Van Leeuwen, 397 U.S. 249, 253, 90 S.Ct. 1029, 1032, 25 L.Ed.2d 282 (1970). While “theoretically” an unduly long detention of mail could become unreasonable enough to intrude upon privacy interests protected by the Fourth Amendment, id. at 252, 90 S.Ct. at 1032, the main Fourth Amendment interest in a mailed package attaches to the privacy of its contents, not the speed with which it is delivered, id. at 253, 90 S.Ct. at 1032. For this reason, the Court ruled that no interest protected by the Fourth Amendment is invaded by forwarding a package on the following day rather than the day it is deposited. Id.; see also United States v. Martell, 654 F.2d 1356, 1367-68 (9th Cir.1981) (Nelson, J., dissenting) cert. denied — U.S. -, 103 S.Ct. 3551, 77 L.Ed.2d 1397 (1983). The Court recently adhered to the holding of Van Leeuwen, characterizing the case as one in which “the defendant was unable to show that the invasion intruded upon either a privacy interest in the contents of the packages or a possessory interest in the packages themselves.” United States v. Place, — U.S. -, 103 S.Ct. 2637, 2643 n. 6, 77 L.Ed.2d 110 (1983) (quoting 3 W. LaFave, Search & Seizure § 9.6, at 60; see also id. at 2650 n. 5 (Brennan, J., concurring). This case is very similar to Van Leeuwen. As in Van Leeuwen, the drug agents segregated the package mailed by Jacobson without a sufficient basis to justify examining its contents. As in Van Leeuwen the agents, through independent investigation, within a few hours of the segregation acquired probable cause to believe that the package contained evidence of criminal activity. The total duration of the period of detention of the package prior to the search was nine hours, far less than the 29 hours held reasonable in Van Leeuwen. Based on Van Leeuwen, we conclude that the segregation and detention of the package mailed by Jacobson did not violate the Fourth Amendment. The investigation that uncovered facts amounting to probable cause to search the package was also conducted in a lawful manner. The agents did not disturb, test, inspect, or allow the trained dog to sniff the segregated package until after they had searched the motel room vacated by Hillison and Jacobson. There they discovered scraps of brown wrapping paper, ten marijuana seeds and marijuana debris, items that suggested the package mailed by Jacobson might contain marijuana. Whether or not this information gave probable cause to search the package, it certainly provided the founded suspicion, if any, needed to justify a dog sniff. See Florida v. Royer, 103 S.Ct. at 1328 n. 10 (plurality opinion); see also United States v. Place, - U.S. -, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983) (dictum). When the concededly reliable dog strongly alerted on the mailed package, the agents plainly had probable cause to believe that it contained illegal drugs. United States v. Spetz, 721 F.2d 1457 (9th Cir.1983). When the search warrant authorizing examination of the package contents was executed, the agents discovered that it actually contained cocaine. They therefore had probable cause to believe that Hillison and Jacobson were engaged in criminal activity, and to arrest the pair the next morn ing at the San Diego airport. The search of Hillison’s socks was valid as a search incident to his arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, (1969). No Fourth Amendment violation tainted the evidence used to convict either of these appellants. B. Fourth Amendment challenge by Mansfield Although the investigating agents properly learned that Hillison and Jacobson were engaged in illegal drug-related activity, the arrest of Mansfield on the morning of April 9 was not lawful unless the agents had probable cause to believe that Mansfield was also engaged in such activity. Arresting officers have probable cause to make warrantless arrests if, at the moment of arrest, facts and circumstances within their knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense. United States v. Martin, 509 F.2d 1211 (9th Cir.1975), cert. denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975). The agents at the time of arrest had observed: (1) Mansfield driving Hillison and Jacobson as passengers in his car, (2) Mansfield, Hillison and Jacobson visiting back and forth between their adjacent rooms on the afternoon of April 8; (3) Hillison driving Mansfield’s car to a liquor store; and (4) Mansfield returning the next morning and meeting with Hillison and Jacobson before their departure. The agents also knew, by the time they arrested Mansfield, that Hillison and Jacobson were “dealers.” The agents had some information that Mansfield’s car had been leased in the name of “Jerry Thurston”, while his motel room had been rented in the name of Jeffrey Mansfield. The possible use of the two names would suggest to experienced police officers that the user had something to hide. Mansfield’s close association with Hillison and Jacobson suggested at least that Mansfield very probably knew what business they were pursuing. If so, Mansfield indeed had something to hide. In considering whether there was probable cause to arrest Mansfield, the court properly could take into account the experience and expertise of Drug Enforcement'Administration agents observing his activity. United States v. Lomas, 706 F.2d 886 (9th Cir.1983.)
10812261-11969	DAVIS, Judge, delivered the opinion of the court: The question in this personnel case is the timeliness of plaintiffs appeal to the Merit Systems Protection Board (MSPB) on May 15, 1979. The suit, which comes before us on cross-motions for summary judgment, stems from a notice of proposed separation for inefficiency that plaintiff John C. McKechnie received in August 1978. Mr. McKech-nie had worked as a research electronic engineer with the Naval Training Equipment Center (NTEC), Department of the Navy, in Orlando, Florida, since the beginning of 1968. In the summer of 1978 he was a GS-13. On or about August 22, 1978, he received the notice of proposed separation for inefficiency. This informed him that his separation could be effected in thirty days, but that he had a right to reply within fifteen days, and that he had a right to counsel of his choice. He was also given the name of an employee in the Civilian Personnel Office who could answer questions. The plaintiff sought as his representative a fellow employee, Margaret J. Mason, who replied to the notice and accompanied him to two meetings with Captain Westbrock, the Commander of NTEC. At the second meeting, plaintiff discussed the option of accepting a reduction in grade rather than a discharge. As a result, Mr. McKechnie requested such a reduction by memorandum on September 14, 1978, and the demotion to GS-7 became effective October 8, 1978. Plaintiffs explanation to the Merit Sys- terns Protection Board and to us is that he accepted this reduction in grade after he had been informed, as he understood it, that he would be promoted quickly back to his old grade. The chronology then loses precision. Plaintiffs position is that, when nothing happened after five months, he attempted to find out when he would be reinstated to a GS-13 position. The record is unclear as to whether the plaintiff counted his five months from the date of his written request for a reduction on September 14 or from October 8, the date the change was effected. Depending on the starting date, five months brought him to either mid-February or early March, 1979. Mr. McKechnie says that he then met with Captain Westbrock who expressed surprise that McKechnie was still at NTEC, and the latter "thereafter” asked Ms. Mason to find out what Captain Westbrock had meant when, during his earlier September 1978 discussion with McKechnie, supra, he referred to McKechnie’s future at NTEC, The plaintiff says that, after a three week delay, Ms. Mason met with the Captain and reported that he had meant that McKechnie could "work [his] way up.” This three week period ends by the close of March 1979 (again depending on the starting date). At some point the plaintiff found in his personnel file that the Request for Personnel Action form in his file had been marked "no promotion potential.” This discovery apparently occurred after the original five months wait had passed. The notation disturbed plaintiff very much. At the latest, it seems clear to us, it was the middle or end of March when the plaintiff had good reason to believe that Captain Westbrock had no intention of reinstating him quickly as a GS-13. At this point, plaintiff sought and obtained legal counsel. His attorney met with Captain Westbrock on April 4, 1979, and told the Captain, according to a follow-up letter that the attorney sent to the Captain on April 9, 1979, that.Mr. McKechnie believed his reduction in grade to have been involuntary. The letter of April 9, 1979 proposed a compromise in which either Mr. McKechnie would be promoted to a grade of GS-12 or the termination process would be reinstituted with a full hearing by the agency. Captain Westbrock rejected this proposal in writing on April 23, 1979. The plaintiff then, in a letter dated May 15, 1979, appealed to the MSPB, claiming that his reduction in grade had been involuntary. The Board rejected the appeal as untimely. John C. McKechnie v. Department of the Navy, MSPB, Atlanta Field Office, Decision No. AT752B90246 (Aug. 3, 1979). The only issue properly before us is whether that ruling should be sustained or upset. Under the regulations then prevailing, the time for an appeal of an adverse action such as a suspension or demotion is fifteen days from the effective date of the adverse action. The appeal must be in writing. 5 C.F.R. §§ 752.203, 772.302(a) (1978). If the agency, as here, fails to give the employee notice of his right to an appeal, the Board may extend the time if the appellant exercises "due diligence in discovering and pursuing the administrative appeal available.” 5 C.F.R. §772.302(b) (1978). On this issue of due diligence we cannot disagree with the Board. We assume (without deciding) that (a) so long as plaintiff felt and had reason to believe that he would be promoted quickly back to GS-13 he had no adequate reason to consider his demotion involuntary, and (b) during that period he had no ground for appealing to the Merit Systems Protection Board. But even on those assumptions he clearly had an obligation of due diligence once he obtained good reason to believe that his prior view was unfounded or very questionable. That occurred here at the latest, as we have said, in the middle or end of March 1979. By that time, over five months had elapsed since his reduction in October 1978. He had not received a promotion nor had he, by his own statements, received any satisfaction from Captain Westbrock, the Commander of NTEC. More than that, he had discovered the notation in his file which said "no promotion potential.” Plaintiff was sufficiently upset to retain an attorney (by the beginning of April). This attorney met with the Commander on April 4, 1979 and (according to the attorney’s follow-up letter of April 9th) told him that by then claimant believed his demotion to have been involuntary. This was made indisputably clear by counsel’s letter of April 9th: * * * it is our position that Mr. McKechnie did not "voluntarily” request a reduction in grade but, in fact, Mr. McKechnie was subjected to extreme duress and pressure under threat of being terminated * * *. Nevertheless an appeal to the Merit. Systems Protection Board was not made until May 15, 1979. The intervening period of more than a month was taken up with further unsuccessful efforts to compromise the matter with the employing agency. The agency did not encourage claimant or his lawyer to continue these settlement negotiations. This delay of more than twice the time allowed for an appeal to the Board from a known adverse personnel action (15 days) was not diligent in the circumstances. As plaintiff well knew, more than seven months had gone by since his demotion; he clearly considered by the beginning of April 1979 that this reduction had been involuntary; he had previously received no promotion and no assurances of quick promotion; and he had hired a lawyer who knew or should have known that 15 days was the normal time for an appeal to the Board. In this situation, diligence would call for a prompt appeal by the middle of April 1979 at the latest — not the middle of May (when plaintiff actually appealed to the Board). Even if Mr. McKechnie and his attorney wished to pursue their efforts to compromise with the agency, they could plainly have saved claimant’s appeal rights by meanwhile filing an appeal to the Board. The Board can properly read its regulation as foreclosing an employee from delaying an appeal (which he knows or should know ought to be taken) simply because the employee wants one more chance to settle with or persuade the. agency. A federal employee does not exercise diligence in unduly and unnecessarily prolonging the fixed time limits. The regulations "are plain about the need for proceeding promptly and the penalty for undue delay.” Wilmot v. United States, 205 Ct. Cl. 666, 680 (1974). There are no other grounds on which we can find that plaintiff made a timely appeal. The attorney’s letter of April 9, 1979 to the Commander did not constitute an appeal to the Board; the letter does not mention the Board or say that plaintiff desired an appeal to the Board but states, rather, that Mr. McKechnie’s demotion was involuntary and suggests some compromise solutions for the agency itself to adopt. Gernand v. United States, 188 Ct. Cl. 544, 412 F.2d 1190 (1969), was quite different. There, the low-level employee, unaided by counsel, herself wrote the President about her case within five days after realizing the totality of her predicament, and the President then referred her letter to the Civil Service Commission for consideration of matters within its jurisdiction; the Commission received and acknowledged her letter. In those specific circum stances, quite unlike the present ones, the letter was considered by this court as a timely appeal to the Commission. In McCormack v. United States, 204 Ct. Cl. 371 (1974), the employee (likewise acting by himself and without counsel) was uninformed and unaware of the appeal timp limits and himself wrote shortly to the agency indicating the involuntariness of his action; we held that in that situation he had taken reasonable and prompt steps to appeal after deciding in his own mind that his resignation was involuntary. Neither Gernand nor McCormack holds that in quite different circumstances — such as those we now have — an appeal to the Board (or the former Commission) can or should be taken by a letter to the agency which does not refer to an appeal or to the Board. The plaintiff also argues that he delayed because he was intimidated into fearing that he would be ousted if he appealed. This charge is not substantiated in the record. The MSPB rejected the plaintiffs contention before it that he "was intimidated [when he signed the letter agreeing to his reduction] so as not to carry the matter any further, but to work hard and diligently without making any noise,” noting that "[n]o evidence, direct or circumstantial, was offered in support of this bare allegation and accordingly, no consideration will be given thereto.” McKechnie v. Department of the Navy, supra. This finding is adequately supported. Above all, there is nothing to show that plaintiff delayed after April 4th because of fear of the consequences of taking an appeal. We cannot therefore find that intimidation or justified fear excused Mr. McKechnie’s delay. E.g. Dabney, supra, 358 F.2d at 535, 537; Boyle v. United States, 207 Ct. Cl. 27, 34, 515 F.2d 1397, 1401 (1975). Plaintiffs failure to bring a timely appeal to the Merit Systems Protection Board bars a claim on the merits or on the issue of coercion. E.g. McCormack, supra, 204 Ct. Cl. at 374, Pine v. United States, 178 Ct. Cl. 146, 149, 371 F.2d 466, 467-68 (1967), Martilla v. United States, 118 Ct. Cl. 177, 179-80 (1950). The other side of the coin is that we cannot consider (in a de novo trial or otherwise) the claim that Mr. McKechnie’s request for a reduction in grade was involuntary, or any other aspect of his reduction. Accordingly, plaintiffs motion for summary judgment is denied, defendant’s motion is granted, and the petition is dismissed. It remains a matter of dispute at whose suggestion this alternative arose. At one point in the administrative proceedings, plaintiff described this as follows: "I had the impression that he [the Commander] was fitting me into a new group, and I felt confident that as a GS-13, Level 7 capability, I would soon justify reinstatement at my old grade.” At oral argument, Mr. McKechnie’s attorney was uncertain of when his client found this notation in his file. At different points in the argument he said that it was before the first post-five months meeting with Captain Westbrock (which would be February or early March), sometime in March after he had access to his file, the end of March, beginning of April, or two months before the May 15 appeal. It was apparent that he did not know precisely and the record is no more revealing.
1409-20560	CLARK, Circuit Judge: The per curiam opinion of this court dated August 11, 1972 is withdrawn and the following opinion is adopted as the opinion of the court. The intricate facts of the several corporate transactions involved in this case are fully set out in the Tax Court opinion in Charles A. Sammons, 30 T.C.M. 626 (1971), and need not be repeated here. Suffice it to say that the facts outlined herein are highly simplified. Sammons, the prime mover in this inter-corporate world, owned 99% of Reserve Life Insurance Company, which in turn owned a substantial interest in Standard Steel Works, Inc. Standard agreed to indemnify Sammons for any losses which he might incur by guaranteeing a bank loan to Aero-Test Equipment Company, a corporation which, at the time of indemnity, was owned by Standard. Sam-mons then guaranteed the bank loan to Aero, and later substituted his personal note to the bank for his guaranty of Aero’s debt. Aero encountered financial difficulties and was unable to repay the loan. Reserve and other insurance companies controlled by Sammons then transferred approximately 1,200,000 dollars to Aero through the medium of purchasing Aero’s preferred stock, using several other controlled corporations as vehicles to accomplish the transfer. Of this sum Sammons received 966,000 dollars, plus accrued interest, in satisfaction of the note which had been substituted for his guaranty of Aero’s bank loan. In addition, he received 142,000 dollars in satisfaction of Aero obligations that he had acquired by the discount purchase of accounts due other Aero creditors. The Tax Court found as a fact that the primary purpose of the transfer by Reserve and the other corporations to Aero was to benefit Sammons by furnishing Aero with sufficient funds to pay the debts owed Sammons. 30 T.C. M. at 636. Thus, the Tax Court held that the approximately 1,100,000 dollars received by Sammons constituted a constructive dividend. If there is one thing that can be clearly comprehended through the bewildering corporate and fiscal complexities of this case, it is that any tax consequences of these arrangements must ultimately rest on a finding that a distribution of corporate funds to Sammons occurred. Our search for such a distribution may not be restricted to the usual probings to find a direct payment to the stockholder for which the corporate structures received no consideration, because, while Sam-mons did indeed receive approximately 1,100,000 dollars from Aero, that payment was wholly in satisfaction of various Aero debt obligations to Sammons. Thus, any dividend inherent in this situation, constructive or otherwise, must have been the result of the transfer of funds between the various corporate entities involved rather than of any transfer by any corporation to Sammons. It is the tax effect of this intercorporate transfer question which this opinion addresses. It is a well-established principle that a transfer of property from one corporation to another corporation may constitute a dividend to an individual who has an ownership interest in both corporations. That principle, however, does' not provide a base for reasoning inductively to the broader proposition that all transfers from one corporation to another constitute dividends to a stockholder pf both. In attempting to illuminate the line between the disparate tax characterizations given to ostensibly similar transactions, it is often necessary to resort to a bifurcated inquiry to test for dividend equivalence. In every case, the transfer must be measured by an objective test: did the transfer cause funds or other property to leave the control of the transferor corporation and did it allow the stockholder to exercise control over such funds or property either directly or indirectly through some instrumenality other than the transferor corporation. If this first assay is satisfied by a transfer of funds from one corporation to another rather than by a transfer to the controlling shareholder, a second, subjective test of purpose must also be satisfied before dividend characterization results. Though a search for intent or purpose is not ordinarily prerequisite to discovery of a dividend, such a subjective test must necessarily be utilized to differentiate between the normal business transactions of related corporations and those transactions designed primarily to benefit the stock-owner. While the Tax Court found as a fact that this latter subjective test of purpose was satisfied in this ease, and we find no error in that determination, it failed to perceive that the objective test was only partially satisfied. Thus, we must reverse in part and remand. In the context of this case which requires that both tests be applied, it fa cilitates understanding to review them in reverse order. The Purpose Test Our examination of the record convinces us that the court’s factual finding that the corporate distribution was made primarily for the benefit of the taxpayer, rather than for any valid business purpose, is not clearly erroneous; consequently, this finding cannot be disturbed on appeal. Fed.R.Civ.P. 52(a); Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Casner v. Commissioner, 450 F.2d 379 (5th Cir. 1971); Chared Corp. v. United States, 446 F.2d 745 (5th Cir. 1971). As importantly, we think the “primary purpose” test is the appropriate test to apply to the case at bar. See W. B. Rushing, 52 T.C. 888, 893 (1969), aff’d on other issues, 441 F.2d 593 (5th Cir. 1971); Commissioner v. Offutt, 336 F.2d 483 (4th Cir. 1964); Walter K. Dean, 57 T.C. 32 (1971); PPG Industries, Inc., 55 T.C. 928 (1970). The taxpayer, however, contends that it successfully established at least some business-related justification for the distribution, and that any valid business purpose, no matter how tenuous, is sufficient to upset the Commissioner’s determination and reverse the Tax Court. See Christie Coal & Coke Co., 28 T.C.M. 498 (1969). We do not agree. It is true that “(t)he line between shareholder benefit and corporate benefit is not always clear . . . because some expenditures embody both elements; and an indirect [or an incidental] benefit to the shareholder should not by itself be treated as a distribution to him.” B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders [[ 7.05, at 7-27 (3d ed. 1972) (bracketed words added). But this does not mean that where the primary or dominant motivation for a distribution was to benefit the stockholder rather than the corporation that the articulation of a concededly subordinate business justification should cause the entire transaction to be recharacterized for tax purposes. To permit such a swallowing up of the greater by the lesser would require us to espouse a rule of law which both ignores the substance of corporate transactions and sharply departs from the recent trend of cases implementing analogous sections of the federal tax law. See United States v. Generes, 405 U.S. 93, 92 S.Ct. 827, 31 L.Ed.2d 62 (1972); United States v. Donruss Co., 393 U.S. 297, 89 S.Ct. 501, 21 L.Ed.2d 495 (1969); Scroll, Inc. v. Commissioner, 447 F.2d 612 (5th Cir. 1971) ; Campbell v. Cen-Tex, Inc., 377 F.2d 688 (5th Cir. 1967); Fireoved v. United States, 462 F.2d 1281 (3rd Cir. 1972) ; see also Lipnick, Business Purpose and Income Taxes: From Gregory to Goldstein, 46 Taxes 698, 724-29 (1968). We decline to so rule. Rather we hold that where the business justifications put forward are not of sufficient substance to disturb a conclusion that the distribution was primarily for shareholder benefit, this prong of the dividend characterization test is met. Thus, the subjective requirement for dividend characterization of the transfer is satisfied by the Tax Court’s finding as to the primary purpose of the parties. The Distribution Test Uniquely, the objective question to be answered [Was there a distribution?] is the more complex inquiry in this case. The concept that a transfer of property between corporations with common ownership may constitute a dividend to the common owner, even when the stockholder has not received funds or property from either corporation, has been well established in the numerous cases dealing with transfers between corporations in which the stock of each is held by the same shareholder or group of shareholders, usually denominated brother-sister corporations. Although the term is normally applied to corporations owned directly by the controlling stockholders, it also encompasses corpo rations held through intervening corporate entities so long as neither corporation owns the other directly or indirectly. In the situation where funds are transferred from one such sibling corporation to another, the theory is that the funds pass from the transferor to the common stockholder as a dividend and then to the transferee as a capital contribution. The complicating factor here is that we are dealing with corporations which are not aligned horizontally in a brother-sister sort of relationship, but vertically in a parent-child arrangementment. That is, the transferor corporation owns the transferee corporation directly or indirectly. While, as the Tax Court noted, the constructive dividend theory has been applied occasionally to vertically aligned corporations, its scope or purpose cannot be interpreted so broadly as to reach all cases where a corporation transfers funds to a corporation which it owns, either directly or through mesne corporations, even though the transfer is primarily to benefit the stockholder of the transferor. Our reasoning may best be focused by using a less complex hypothetical example rather than the actual convoluted factual matrix of the instant case. By way of illustration, let us assume that an individual owns all of the stock of Parent Corporation, which in turn owns all of the stock of Subsidiary Corporation. Then the critical question is this: if Parent makes a transfer of funds to Subsidiary — even though for the primary purpose of benefiting Parent’s individual stockholder — does the law require that the transaction be treated as a constructive dividend to the individual? Certainly no dividend can be constructed unless there is a “distribution” to the individual. Thus, it is essential to the existence of a dividend, actual or constructive, that the stockholder receive something from the corporation. After a transfer of funds down the corporate chain of ownership, as in the paradigm example above, the stockholder of Parent has no more control over or right to the money than he did before the transfer occurred. His only interest in the funds after the transfer is that which redounds to him through his ownership of Parent. Though he may indirectly benefit from the transfer of the funds and their employment by Subsidiary in some other corporate activity, the benefit could be no different in substance than that which he might realize from a shift of funds within the same corporate entity. Nor, in this situation, does Parent relinquish its interest in the transferred funds, though its control over them may be attenuated. Only when funds are diverted from the lineal chain of ownership, either to the shareholder himself or to a collaterally owned chain of corporations, does his right to the funds have a source independent of his direct or indirect ownership of the stock of the distributing corporation, and only then has the corporation relinquished control of the funds. A transfer of funds by a corporation to another corporation which the former owns directly or indirectly can be a constructive dividend to the individual controlling stockholder only if (1) the funds are diverted away from the parent-subsidiary corporate structure and come within the control of the stockholder, and (2) no adequate consideration for the diversion passes from the stockholder to the corporation, i. e. there must be a net distribution. In all of the cases cited by the Tax Court to support its application of the constructive dividend rule to Sammons’ vertically-aligned corporations the stockholder received property from one of the corporations for which he gave no consideration. See Jacob M. Kaplan, 43 T.C. 580, 591-592 (1965); George M. Tollefsen, 52 T.C. 671, 681 (1969), aff’d 431 F.2d 511 (2nd Cir. 1970), cert. denied, 401 U.S. 908, 91 S.Ct. 867, 27 L.Ed.2d 806 (1971); Ben R. Meyer, 45 B.T.A. 228, 238-239 (1941). However, no case cited is authority for the extension of the constructive dividend theory to cases where there is merely a transfer to a subsidiary of the transfer- or without regard to the circumstances surrounding the payment to the supposed constructive distributee. In the case at bar there was no gratuitous transfer, no loan never intended to be repaid, and no siphoning off of funds from any corporation to Sammons. He received the payments from Aero as a creditor, not as a stockholder. Since full consideration had passed to the corporation when the debts were created, the repayment of the corporate debts could not constitute a distribution to Sammons for he received nothing that was not already owed. It is urged, however, that a transfer of corporate funds from a fiscally sound parent to an insolvent or near insolvent subsidiary corporation for the purpose of enabling the subsidiary to pay a debt to the controlling stockholder of the parent is not within the general rule that we have stated. Based upon the reasonable expectation that the parent should rely on its status as a separate corporate entity to insulate itself from the liability to any creditor which the subsidiary is unable to satisfy (including its own controlling shareholder), it is contended that the transfer of funds should be treated as a dividend to the parent corporation’s stockholder. While there can be no quarrel with this contention, it does not reach the entire payment which Sammons received in the case at bar. Conceding that Aero would probably be unable to pay its debt to Sam-mons, the fact which overrides Aero’s financial embarrassment is the indemnity obligation of Standard — a subsidiary of Reserve which, unlike Aero, was sufficiently solvent to meet its obligation to indemnify Sammons. Standard’s indemnification agreement extended to any losses which Sammons might incur as a result of his guaranty of the bank loan. Thus, Standard remained obligated to indemnify Sammons to the extent of the note which he had executed in satisfaction of the bank loan (966,000 dollars and the interest thereon). We reject the Government’s contention that Standard’s indemnity did not apply to the note executed by Sammons in satisfaction of Aero’s note on which he was guaranty. It is also irrelevant that the payment Sammons received was not explicitly designated as being in satisfaction of the indemnity obligation. No choice between form and substance is involved. Here, under both form and substance, the payment removed the indemnity obligation of Standard. The payment by the parent, Reserve, of the obligation of its solvent and financially secure subsidiary, Standard, does not constitute a gratuitous transfer to an insolvent corporation for the benefit of Sammons. Thus, the insolvency argument urged by the Commissioner has no application to so much of the payment as went to satisfy Sammons’ claim to indemnity. However, the Commissioner’s argument does reach the transfer of funds which Sammons eventually received in satisfaction of his other discounted debt purchase claims against Aero which were not subject to any indemnity agreement, and we affirm the Tax Court’s decision as to that amount. For the sake of simplicity, we have thus far considered the case as if Standard were wholly owned by Reserve. The record before us indicates however that Reserve owned directly and indirectly only about 76.8% of the outstanding stock of Standard. Moreover, Sam-mons owned at least 13% of Standard apart from that interest which was his through his ownership of Reserve. Thus, although Reserve’s ownership of the greater part of Standard created a parent-subsidiary relationship between the two corporations, they evidently were, to some extent, brother-sister corporations as a result of Sammons unrelated ownership interest in both. Reserve and the other insurance companies, through their indirect contributions to Aero bore the entire loss of indemnifying Sammons rather than just their respective distributive shares of the loss; thus, the shareholders of Standard other than the contributing insurance companies were, in some mathematical ratio, relieved of their portions of the loss occasioned by the indemnity agreement. Since Sammons, either directly or through other of his corporations, was apparently one of these other benefited shareholders, there remains the possibility that he received constructive dividends in some amount as a result of the contributions to Aero. This issue, already complex enough, is further clouded by the fact that the contribution to Aero came not only from Reserve but from other insurance companies controlled by Sammons. We decline to attempt to resolve this labyrinthine question of fact and law on the record before us without the benefit of'the Tax Court’s findings and opinions on the issue. However, we deem it appropriate to furnish that forum with a general example of the approach which the remanded issue requires. The basic question which must be resolved may be most simply illustrated by assuming that the entire transfer came from Reserve. Suppose, for example, that the Tax Court were to determine that Sammons owned 20% of the stock of Standard either directly or indirectly, excepting of course that interest in Standard which would be attributed to him through his ownership of Reserve. In that situation Reserve’s contribution to Aero would have relieved Sammons’ 20% stock interest in Standard of its share of the loss resulting from the indemnity agreement. Since that 20% share of the loss was borne not by Sam-mons, but by Reserve through its contribution to Aero, it could be contended that Sammons received a constructive dividend in an amount equal to 20% of the loss occasioned by the indemnity. We express no opinion on the merits as to whether this predominantly vertical — but perhaps partially horizontal— transfer constitutes a constructive dividend. It may be thát the Tax Court would consider such a benefit only incidental to Sammons, and not a proper subject for application of the constructive dividend rule. We remand to the Tax Court with instructions to determine (a) what part of the contribution to Aero is analogous to the transfer of funds from one brother-sister corporation to another, rather than a transfer down the chain of corporate ownership, and (b) whether that brother-sister portion of the contribution constituted a constructive dividend to Sammons. We have concluded that the Tax Court correctly construed all of the 142,121.20 dollars received by Sammons in payment of the deferred notes as a constructive dividend, and have given that court instructions as to treatment to be afforded the payment which satisfied the indemnity. One other point which may occur in connection with our remand should be addressed. While the total transfer to Aero was 1,200,000 dollars, the total payment (including the interest component) received by Sammons was only 1,120,-960.96 dollars. The funds represented by the difference between these two figures, 79,039.04 dollars, were retained by Aero. The Tax Court’s opinion is unclear as to whether there was a finding that the primary purpose of this 79,-039.04 dollar portion of the transfer was to benefit Sammons. The Government made no claim that these particular transferred funds constituted a dividend (apparently because of its focus on the much larger sum of money which Sam-mons actually received). The Tax Court should determine whether an argument of dividend equivalence as to this amount can now properly be raised by the government, should it desire to do so. If it does and if the Tax Court determines that this issue can now properly be raised, it shall determine the proper tax treatment of that amount in accordance with the principles outlined in this opinion. When these determinations have been made the Tax Court is then directed to recompute the taxpayer’s liability. Affirmed in part, reversed in part, and remanded with directions.
1649779-5627	PER CURIAM: Appellant Martinez-Gallegos appeals a conditional guilty plea on the ground that the district court erroneously denied his motion to suppress evidence showing he had re-entered the United States after deportation in violation of 8 U.S.C. § 1326 (1982). Martinez-Gallegos claims a statement obtained by Immigration and Naturalization Service (INS) agents in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), led the agents to consult INS’s “A” file on Martinez-Gallegos containing the record of his previous deportations. Martinez-Gallegos argues as an alternative ground for suppression that he was in federal custody for ten days in violation of Fed.R.Crim.P. 5(a). We affirm. Jerome County, Idaho, Deputy Sheriff George Silver stopped Martinez-Gallegos on November 28, 1985 because Martinez-Gallegos was driving a vehicle without a current registration sticker. Silver arrested Martinez-Gallegos when he could not produce proof of insurance or registration, a driver’s license, or identification of any kind. Silver asked Martinez-Gallegos if he was a citizen of the United States. Martinez-Gallegos stated he was not. Martinez-Gallegos then attempted to flee by foot, but was captured and eventually brought to the county jail where he was detained on state charges. Martinez-Gallegos gave his true name during the booking procedure at the county jail. The following day, INS agents Dan Brin-son and David Offutt went to the county jail to talk to illegal aliens in custody. The agents were told by a jailer or dispatcher that Martinez-Gallegos was in custody and was an illegal alien. The agents asked Martinez-Gallegos for his name and information pertaining to his background called for by INS “Form 1-213.” Martinez-Gallegos was given no Miranda warnings. Immediately after questioning Martinez-Gallegos, the agents asked the county jail officials not to release him without informing the INS. On the same day (November 29), agents Brinson and Offutt received from their Assistant District Director an administrative arrest warrant for Martinez-Gallegos, an order to show cause and a bail bond of $15,000. Martinez-Gallegos was not released into federal custody until December 10 and was placed under federal bond on the same day. Government counsel’s uncontested explanation at oral argument was that the delay was caused by the arraignment and guilty plea of Martinez-Gallegos on state charges and his subsequent five-or six-day incarceration on those charges. The agents received Martinez-Gallegos’ “A” file on December 13, and reviewed it on December 14. The “A” file contained documents establishing that Martinez-Gallegos had previously been deported from the United States, first in 1972 when the “A” file was opened, and last on June 29, 1984. On the basis of the “A” file, Agent Offutt decided to initiate criminal charges. A complaint and arrest warrant were issued on December 17, and Martinez-Gallegos was brought before a magistrate on the same day. He was formally arraigned on December 20. The government conceded Martinez-Gallegos’ statement to the INS agents should be suppressed. Martinez-Gallegos sought suppression of the information contained in the “A” file as illegal fruit of his unwarned statements to the INS agents, and because the government violated Fed. R. Crim.P. 5(a) by not promptly bringing him before a federal magistrate for arraignment. The district court denied his motion. The government argues the information in the “A” file should not be suppressed because it would have been discovered without the unwarned statement. The “inevitable discovery” doctrine is an exception to the exclusionary rule. See Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 2509, 81 L.Ed.2d 377 (1984); United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir.1986). It applies when the prosecution can show by a preponderance of the evidence that the evidence would have been discovered inevitably by lawful means. Nix, 467 U.S. at 444, 104 S.Ct. at 2509; Andrade, 784 F.2d at 1433. The inevitable discovery doctrine applies to fifth amendment violations. United States v. Schmidt, 573 F.2d 1057, 1065 n. 9 (9th Cir.) (“Even if the search [leading to incriminating physical evidence was] considered the result of one of Schmidt’s coerced statements, the resulting [evidence] would have been discovered by independent investigative procedures____ If evidence, otherwise inadmissible under the exclusionary rule, would have been discovered independently, it need not be excluded.”), cert. denied, 439 U.S. 881, 99 S.Ct. 221, 58 L.Ed.2d 194 (1978); see also Nix, 467 U.S. at 440 n. 2, 104 S.Ct. at 2507 n. 2 (citing Schmidt). A preponderance of the evidence indicates the INS agents would have consulted Martinez-Gallegos’ “A” file absent his unwarned statements. The “A” file was in INS records when the agents questioned him; it was opened in 1972 and last updated in 1984. The agents testified at the suppression hearing that if Martinez-Gallegos had refused to answer the agents’ questions pertaining to his identity and background, the agents’ next step, indeed the only step available to them, would have been to consult his “A” file. The file was readily retrievable since county officials had obtained Martinez-Gallegos’ true name during the booking procedure. Martinez-Gallegos’ reliance on Fed. R.Crim.P. 5(a) is equally fruitless. Martinez-Gallegos claims he was held in violation of Rule 5(a) for ten days: from December 10,1985, when he was taken into federal custody, until December 20, when he was formally arraigned on the federal charge.
521669-27567	LEVIN H. CAMPBELL, Circuit Judge. On October 18, 1976, the Massachusetts Commissioner of Banks commenced a civil action in the Supreme Judicial Court of Massachusetts against the First Federal Savings and Loan Association of Boston (First Federal), a federally-chartered lender which engages in mortgage transactions in Massachusetts. The Commissioner sought declaratory and injunctive relief regarding the interpretation and enforcement of Mass.Gen.Laws c. 183, § 61, which requires mortgagees to pay interest on certain tax escrow accounts and to file informational reports concerning such accounts. Sued as a representative party on behalf of all federally-chartered savings and loan associations in Massachusetts, First Federal was described in the complaint as, “ . . . a mortgagee under G.L. c. 183, § 61 and ... a lender which is regulated by an agency of the federal government as that phrase is employed in the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. §§ 2601 et seq.” The complaint charged that notwithstanding notification of the requirements of Mass.G.L. c. 183, § 61, First Federal refused to make the filings requested by the Commissioner. It alleged that the Massachusetts statute requires more than did a federal regulation, 12 C.F.R. § 545.6-ll(c), that “relate[s] in part to the payment of interest on tax escrow accounts,” and “which [is] designed to conform with § 10 of the Real Estate Settlement Procedures Act of 1974,” 12 U.S.C. § 2609 (RESPA). Specifically, the complaint stated, “a) § 61 requires the filing of annual reports; § 545.6-11 does not; b) § 61 applies to dwelling houses of four or fewer separate households; § 545.6-11 applies only to single family dwellings; c) § 61 applies to deposits on all present outstanding loans; § 545.6-11 applies only to deposits on loans made after June 16, 1975.” Thus, according to the Commissioner’s complaint, “[i]nsofar as the state law requirements differ from those of federal law, First Federal has not met those requirements.” The complaint went on to insist that compliance with the federal regulations on the payment of interest on tax escrow accounts does not satisfy the requirements of state law, and that the state statute was not preempted by federal law. Indeed, it alleged that the Massachusetts statute is explicitly recognized as valid by § 18 of RES-PA, 12 U.S.C. § 2616, which provides that any state law with respect to settlement practices that gives protection to the consumer greater than that provided by federal law shall not be deemed inconsistent with RESPA. The Commissioner prayed that the federal associations be compelled to comply with G.L. c. 183, § 61. On October 29, 1976, First Federal removed the case to the United States District Court for the District of Massachusetts pursuant to 28 U.S.C. § 1441(b). First Federal justified removal on the ground that the action was one over which the district court had original federal question jurisdiction under 28 U.S.C. §§ 1331 and 1337, in that it would involve “the construction, interpretation and application of federal statutes, specifically [12 U.S.C. §§ 1464, 2616, and 12 C.F.R. § 545.6-11].” The Commissioner on November 23, 1976, moved to remand the case to the Massachusetts Supreme Judicial Court. The district court denied the motion on February 23, 1977, in conformity with a magistrate’s conclusion that the district court had original jurisdiction under 28 U.S.C. §§ 1331 and 1337. While the remand issue was being resolved, the litigation proceeded. First Federal filed an answer to the Commissioner’s complaint in the district court on November 9, 1976. The bank asserted that it had complied with 12 C.F.R. § 545.6-11, but had not complied with the requirements of the Massachusetts statute “to the extent such state law is not required to be followed by [the federal regulation].” First Federal contended that “certain provisions” of the Massachusetts statute were not applicable to it, and that the Massachusetts statute is not recognized by RESPA as being valid. First Federal also raised four affirmative defenses: (1) that the Commissioner failed to state a claim upon which relief can be granted; (2) that the Commissioner failed to join as a party defendant the Federal Home Loan Bank Board (Bank Board), which allegedly was “the real party defendant in interest ... or ... an indispensable party defendant”; (3) that federal regulations promulgated by the Bank Board totally occupy the field of regulation of the practices and procedures of federal savings and loan associations relating to the establishment, maintenance and payment of interest on escrow accounts; and (4) that those portions of Massachusetts G.L. c. 183, § 61 that the Commissioner seeks to enforce conflict with the federal regulations and thus are inapplicable, by virtue of the Supremacy Clause, to federal savings and loan associations. First Federal along with its answer filed a counterclaim against both the Commissioner and the Bank Board. The amended counterclaim sought declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, to resolve the conflicting positions of the Commissioner and the Bank Board regarding First Federal’s obligation to pay interest on escrow accounts as required by the Massachusetts statute. In addition to the counterclaim against the Commissioner and the Bank Board, on January 11, 1977 First Federal and the other Massachusetts savings and loan associations instituted in the district court a separate civil action against the Commissioner and the Bank Board. Paralleling First Federal’s counterclaim in the removed suit, the new action sought an adjudication under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, of the conflicting positions of the Commissioner and the Bank Board. Jurisdiction was premised on 28 U.S.C. §§ 1331 and 1337. The Commissioner moved on March 21, 1977 to stay proceedings in this second action because of the pendency of the first action involving the same issues, but ten days later she withdrew the stay motion, filed an answer, and agreed to consolidate the two proceedings for hearing in the district court. All parties then moved for summary judgment under Fed.R.Civ.P. 56. The district court issued a memorandum opinion ruling that Mass.G.L. c. 183, § 61 violates the Supremacy Clause when applied to federally-chartered savings and loan associations. It reasoned both that federal law preempts the field of interest payments on escrow accounts by the federal associations and that the Massachusetts statute directly conflicts with 12 C.F.R. § 545.6-11. The court viewed RESPA § 18 as inapplicable to the case, because there has been no determination by the Secretary of Housing and Urban Development that the Massachusetts law affords greater consumer protection than 12 C.F.R. § 545.6-11(c) and because the payment of interest on escrow accounts is not a “settlement practice,” as defined in RESPA, § 3, 12 U.S.C. § 2602. The district court issued an order in each of the two cases granting First Federal’s and the Bank Board’s motions for summary judgment and denying the Commissioner’s. The order in the Declaratory Judgment Act action declared that Massachusetts G.L. c. 183, § 61 “is inapplicable to and need not be complied with by federally-chartered savings and loan associations located in Massachusetts.” On appeal the Commissioner argues, first, that the federal district court erred in refusing to remand to the state court, as it lacked subject matter jurisdiction over the Commissioner’s removed action; second, that the district court should have abstained from adjudicating the associations’ declaratory judgment action, because but for the district court’s erroneous assumption of jurisdiction the same issues would have been before the state court at the time the associations’ action was filed; and third, that even if the district court did properly reach the merits, it erred in ruling Mass. G.L. c. 183, § 61 to be inapplicable to federal savings and loan associations by virtue of preemption. I. The district court held that there was removal jurisdiction over the Commissioner’s state action, on the ground that it arose under federal law because federal law had preempted the area of the payment of interest on real estate tax escrow accounts. We need not and do not pass on this determination, because we hold infra that the district court could decide the merits of the present controversy on the basis of the associations’ federal declaratory judgment action even if the Commissioner’s own action belonged in the state court. We observe in passing that resolution of the jurisdictional issue with respect to the Commissioner’s action does not appear to be as simple as the district court may have believed and as common sense alone might suggest. While the Commissioner’s claim turns ultimately on the federal question of preemption, it is, narrowly construed, only a claim to enforce the Massachusetts interest law. Arguably it fails to meet the requirement for federal question jurisdiction that a federal right be an essential element of the cause of action, Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936). To be sure, the Commissioner’s complaint cites to a federal statute, RESPA § 18, as allowing state interest regulation. But RESPA seems material only to offset the defense of federal preemption, and, therefore, it could be that the federal question does not adequately appear from the “well-pleaded” complaint, see id. at 113, 116, 57 S.Ct. 96; Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 663-64, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961). Many courts have ruled federal preemption to be a matter of defense to a state law claim and therefore incapable of providing the basis for federal question jurisdiction. E. g., Home Federal Savings & Loan Association v. Insurance Department, 571 F.2d 423, 426-27 (8th Cir. 1978); Washington v. American League of Professional Baseball Clubs, 460 F.2d 654, 660 (9th Cir. 1972); Johnson v. First Federal Savings & Loan Association, 418 F.Supp. 1106, 1109 (E.D.Mich.1976). On the other hand, some circuits have taken a broader view of federal question jurisdiction, namely that “[e]ven though the claim is created by state law, a case may ‘arise under’ a law of the United States if the complaint discloses a need for determining the meaning or application of such a law,” T. B. Harms Co. v. Eliscu, 339 F. 2d 823, 827 (2d Cir. 1964) (Friendly, J.), citing Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921); accord, Lindy v. Lynn, 501 F.2d 1367, 1369 (3d Cir. 1974). And in the situation here presented, a number of courts have ruled that if federal law preempts the state law on which an action is purportedly based, the action may be removed to federal court. E. g., Rettig v. Arlington Heights Federal Savings & Loan Association, 405 F.Supp. 819, 822-23 (N.D.Ill.1975); see Meyers v. Beverly Hills Federal Savings & Loan Association, 499 F.2d 1145 (9th Cir. 1974); North Davis Bank v. First National Bank, 457 F.2d 820 (10th Cir. 1972). It is clear from the foregoing that the removal issue is not easy. Given this uncertainty, and the fact that this case may be decided without resolving the issue, we prefer not to resolve it. The question is not essential to decision here because even if removal of the Commissioner’s action were improper, the district court clearly had jurisdiction over the associations’ separate declaratory judgment action which involved the same issues and was consolidated with the Commissioner’s action for hearing and decision. The matter of preemption and related federal issues were the focal point of the declaratory judgment suit, hence federal question jurisdiction existed in that case under any analysis. True, the declaratory suit is a sufficient predicate only if the federal court was not required to abstain; but for reasons we next discuss, we find the Commissioner’s abstention argument to be entirely without merit. II. We turn now to the Commissioner’s abstention argument, which is based on the supposition that the district court erred in not remanding the Commissioner’s action. The Commissioner argues that had her action properly remained in the Massachusetts court rather than being, as she says, improvidently removed, the district court would have had to abstain from the associations’ declaratory judgment action, because the Commissioner’s action involving the same federal issue of preemption would have been pending in state court at the time the associations’ action was filed. We disagree. Even if we assume that the removal had been improper, we do not believe that abstention would have been required. The Commissioner argues in support of her position that Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), require a federal court to abstain from an action seeking declaratory relief whenever the Anti-Injunction Act would bar an injunction. That Act provides, “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 Commissioner contends simply that because none of the three exceptions outlined in § 2283 obtain in this case, abstention is required. That analysis misapprehends the Great Lakes and Samuels eases, however. Rather than making the precise scope of the Act’s prohibitions of injunctions applicable also to declaratory relief, those cases state that the withholding of federal declaratory relief because of pending state proceedings is to be governed by “traditional equitable principles.” Samuels v. Mackell, 401 U.S. at 70, 91 S.Ct. 764. See generally United States v. State Tax Commission, 481 F.2d 963, 972-73 (1st Cir. 1973). In any event, whether governed by the Act or by “traditional equitable principles,” this case is not an appropriate one for abstention because the Bank Board, a federal agency, is a party to the declaratory judgment action and is asserting “superior federal interests” therein. A federal court may enjoin state judicial proceedings, notwithstanding the Anti-Injunction Act, “when the plaintiff in the federal court is the United States itself, or a federal agency asserting ‘superior federal interests,’ ” Mitchum v. Foster, 407 U.S. 225, 235-36, 92 S.Ct. 2151, 2159, 32 L.Ed.2d 705 (1972), citing NLRB v. Nash-Finch Co., 404 U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971); Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957). The Supreme Court in both Leiter Minerals, 352 U.S. at 225-26, 77 S.Ct. 287, and Nash-Finch, 404 U.S. at 145, 92 S.Ct. at 377, stated the reason behind this exception: “The [anti-injunction] statute is designed to prevent conflict between federal and state courts. This policy is much more compelling when it is the litigation of private parties which threatens to draw the two judicial systems into conflict than when it is the United States which seeks a stay to prevent threatened irreparable injury to a national interest. The frustration of superior federal interests that would ensue from precluding the Federal Government from obtaining a stay of state court proceedings except under the severe restrictions of 28 U.S.C. § 2283 would be so great that we cannot reasonably impute such a purpose to Congress from the general language of 28 U.S.C. § 2283 alone.” The policy underlying this judicially-created exception to the Anti-Injunction Act applies as well, and indeed with greater force, to make abstention under general equitable principles inappropriate where a federal agency is asserting “superior federal interests.” See United States v. State Tax Commission, 481 F.2d at 975. It is true that the Bank Board is not a plaintiff in the declaratory judgment action, but rather was joined as a defendant along with the Commissioner. Despite that posture, however, the Bank Board has actively asserted its position that federal law, including its own regulations, exclusively governs the legal obligation of federally-chartered savings and loan associations to pay interest on escrow accounts. It has challenged the Commissioner’s effort to enforce the Massachusetts statute in both its answer and its motion for summary judgment. There can be no doubt that the Bank Board is asserting what it perceives to be “superior federal interests” in the declaratory judgment action. In this situation, the rationale of Nash-Finch and Leiter Minerals applies as well as if the Bank Board had brought its own lawsuit. Accord, Sobol v. Perez, 289 F.Supp. 392, 399-400 (E.D.La.1968). While the foregoing is dispositive of the abstention issue, we also observe that the Commissioner is in a poor position, equitably, to seek abstention. At the proceeding below she failed to press for abstention, or even raise that issue. While she did move to stay the proceedings pending resolution of the Commissioner’s previously-filed action, that motion was made after the district court denied the motion to remand, was based on “the interests of judicial economy and efficiency” — with no mention of the abstention doctrine, and was subsequently withdrawn without explanation. The Commissioner’s actions came close to waiving, if they did not actually waive, any claim that the district court should abstain. To have to send this already-decided case to another tribunal at this juncture would, especially under these circumstances, be an unwarranted waste of resources. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 126, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). As abstention would have been inappropriate even assuming removal was improper, we turn to the merits of the case. III. The Supremacy Clause requires the invalidation of any state law that either falls within an area exclusively occupied by federal law or actually conflicts irreconcilably with a federal law. Ray v. Atlantic Richfield Co., 435 U.S. 151, 157-58, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978); see DeCanas v. Bica, 424 U.S. 351, 356-65, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). We think that Mass.G.L. c. 183, § 61, as applied to federal savings and loan associations, actually conflicts with 12 C.F.R. § 545.6-ll(c) and therefore is preempted. We accordingly find no need to inquire whether the Home Owners’ Loan Act and the Bank Board’s regulations have “occupied the field,” precluding all state regulation of federal savings and loan associations. The Home Owners’ Loan Act grants to the Bank Board broad regulatory authority over the operation of federal savings and loan associations. Pursuant to this authority, the Bank Board has issued detailed regulations governing the “operations of every Federal savings and loan association from its cradle to its corporate grave.” California v. Coast Federal Savings & Loan Association, 98 F.Supp. 311, 316 (S.D.Cal.1951); see Kupiec v. Republic Federal Savings & Loan Association, 512 F.2d 147, 149 (7th Cir. 1975). One such regulation is 12 C.F.R. § 545.6-11(e), which specifies the conditions under which the federal associations must pay interest on escrow accounts. The regulation also provides, “Except as provided by contract, a Federal association shall have no obligation to pay interest on escrow accounts apart from the duties imposed by this paragraph.” The Massachusetts statute, Mass.G.L. c. 183, § 61, if applicable to the federal associations, would impose on them greater interest requirements than § 545.6-ll(c) and would impose reporting requirements as well. It is manifest that application of the Massachusetts requirements to federal savings and loan associations would contradict the Bank Board’s regulation. That regulation requires federal savings and loan associa tions to make interest payments only on escrow accounts relating to single family dwellings and involving loans made after June 16,1975. The regulation also expressly directs that its interest requirements are exclusive. The Massachusetts statute would require the federal associations to pay interest on many more accounts: those relating to two-, three-, and four-family dwellings and seemingly those relating to loans made before June 16, 1975. In addition, the Massachusetts statute’s reporting requirement would be a burden incidental to the payment of interest beyond what the Bank Board requires. Because the Massachusetts statute imposes significantly greater interest requirements than the Bank Board’s explicitly exclusive requirements, the state and federal schemes necessarily conflict. We therefore conclude that Mass. G.L. c. 183, § 61’s applicability to federal savings and loan associations is preempted by federal law. The Commissioner argues that RES-PA § 18, 12 U.S.C. § 2616, undermines the preemptive effect of 12 C.F.R. § 545.6-11(c). The argument is that § 2616 affirmatively “permits the operation of state laws regulating settlement practices except as they are inconsistent with RESPA,” that the payment of interest on escrow accounts is a “settlement practice,” and that therefore § 2616 affirmatively permits state statutes such as Mass.G.L. c. 183, § 61. Since a federal statute affirmatively permits the Massachusetts interest requirements, the argument goes, a Bank Board regulation cannot invalidate the state law. The Commissioner reads § 2616 far too broadly. On its face § 2616 only states that “This chapter does not annul, alter, or affeet, or exempt any person [from] the laws of any State with respect to settlement practices . ..” [Emphasis added]. Thus, § 2616 relates solely to the preemptive effect of 12 U.S.C. ch. 27, which consists only of RESPA. Section 2616’s scope does not extend to 12 C.F.R. § 545.6-ll(c), as it was promulgated by the Bank Board pursuant to the Home Owners’ Loan Act, 12 U.S.C. § 1464(a), and not pursuant to RES-PA. Affirmed. . Mass.G.L. c. 183, § 61 provides: “A mortgagee doing business in the Commonwealth and holding a first mortgage or lien on a dwelling house of four or fewer separate households occupied or to be occupied in whole or in part by the mortgagor who requires advance payments, deposits or other security by said mortgagor for the payment of real estate taxes on mortgaged property, shall pay interest to said mortgagor on any amounts so paid or deposited in advance. Interest shall be paid at least once a year at a rate and in a manner to be determined by the mortgagee. “Mortgagees required to pay such interest shall file annually with the commissioner of banks a statement showing the amount of net profit or loss from the investment of said deposits. Mortgagees showing a net loss from these investments may file with said commissioner a request for an exemption from the requirement that interest be paid to mortgagors. The commissioner shall maintain as a public record an annual report of interest rates paid to mortgagors as required by this section during the preceding annual period. The report shall list the mortgagees granted exemptions under this section during the preceding annual period.” . It is undisputed that by letter dated June 18, 1976, the Commissioner notified all mortgagees in the Commonwealth, including First Federal, of the interest and reporting requirements of Mass.G.L. c. 183, § 61. Attached to the letter was a form to be completed and filed with the Commissioner. Neither First Federal nor apparently any of the other savings and loan associations has complied with those state statutory requirements. . 12 C.F.R. § 545.6-11(c) provides, “(c) Payment of interest on escrow accounts. A Federal association which makes a loan on or after June 16, 1975 on the security of a single-family dwelling occupied or to be occupied by the borrower (except such a loan for which a bona fide commitment was made before that date) shall pay interest on any escrow account maintained in connection with such a loan (1) if there is in effect a specific statutory provision or provisions of the State in which such dwelling is located by or under which State-chartered savings and loan associations, mutual savings banks and similar institutions are generally required to pay interest on such escrow accounts, and (2) at not less than the rate required to be paid by such State-chartered institutions but not to exceed the rate being paid by the Federal association in its regular accounts (as defined in § 526.1 of this chapter). Except as provided by contract, a Federal association shall have no obligation to pay interest on escrow accounts apart from the duties imposed by this paragraph.” This regulation was promulgated by the Federal Home Loan Bank Board pursuant to its authority over federal savings and loan associations under the Home Owners’ Loan Act, 12 U.S.C. § 1464(a). See note 12 infra. . RESPA § 10 limits the amount that a borrower can be required to deposit in advance in a tax escrow account in connection with a federally-related mortgage loan. . The Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-17, was enacted by Congress in 1974 to regulate real estate settlement processes. Its essential purpose is to provide consumers with greater information and to protect them from certain abusive practices. Section 18 of the Act, 12 U.S.C. § 2616, provides, “This chapter does not annul, alter, or affect, or exempt any person subject to the provisions of this chapter from complying with, the laws of any State with respect to settlement practices, except to the extent that those laws are inconsistent with any provision of this chapter, and then only to the extent of the inconsistency. The Secretary is authorized to determine whether such inconsistencies exist. The Secretary may not de termine that any State law is inconsistent with any provision of this chapter if the Secretary determines that such law gives greater protection to the consumer. In making these determinations the Secretary shall consult with the appropriate Federal agencies.” . 28 U.S.C. § 1441(b) provides, “Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” . The Bank Board was joined pursuant to Fed. R.Civ.P. 13(h). . The associations’ declaratory judgment action raises more than a mere defense to the Commissioner’s action. See generally Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 248, 73 S.Ct. 236, 97 L.Ed. 291 (1952). Both the state and federal regulations are currently in effect, subjecting the associations to conflicting requirements, see infra, which would have presented a justiciable controversy even if the declaratory suit had been brought prior to the Commissioner’s enforcement action, Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 506-08, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). It therefore has a vitality of its own and may be maintained. Rath Packing Co. v. Becker, 530 F.2d 1295, 1305-06 (9th Cir. 1975), aff'd sub nom. Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977).
10514776-18922	PER CURIAM: Paul W. Bonapfel, Trustee for Carpet Center Leasing Co., Inc., appeals the District Court’s order affirming the Bankruptcy Court’s judgment granting Nalley Motor Trucks’ claim for administrative expense priority in the amount of $370,915.96 pursuant to § 507(b) of the Bankruptcy Code. Appellant contends that the judgment is erroneous because the creditor is not entitled to an administrative expense claim. We conclude that the District Court properly affirmed the Bankruptcy Court, and therefore affirm. I. BACKGROUND This case involves proceedings surrounding the bankruptcy case of Carpet Center Leasing Co., Inc. (“Debtor”). When Debt- or filed for bankruptcy under Chapter 11 on February 25, 1987, it operated a large fleet of tractors and trailers, including twenty six tractors in which Paccar Financial Corporation (“Paccar”) held a security interest. Pursuant to a consent decree between Debtor and Paccar, Debtor was allowed to continue using the twenty six tractors in bankruptcy in exchange for monthly “adequate protection” payments to Paccar to protect Paccar’s interest in the depreciating collateral. These adequate protection payments were roughly half of the total monthly payments due under the original installment purchase contracts between Debtor and Paccar. Over a nine month period, Debtor paid a total of $108,-500 to Paccar in adequate protection payments pursuant to the consent order, although some of the payments were not timely. On March 3, 1988 Paul W. Bonapfel, appellant herein, was appointed Trustee of Debtor’s bankruptcy estate. Because Debtor had not made timely adequate protection payments, the Trustee and Paccar entered a consent order on March 3, 1988 which lifted the automatic stay and allowed Paccar to foreclose on the tractors. The consent order was entered without prejudice to Paccar’s right to assert any other claims it might have against the Debtor’s estate. Paccar repossessed most of its collateral during March and April of 1988. On August 19, 1988 Paccar conducted a public foreclosure sale at which Paccar was the only bidder and it bought the tractors for $89,000. Two months later, and six months after the stay was lifted, Paccar sold the trucks by private sale to Arrow Truck Center, Inc. (“Arrow”) for $60,000. On March 30, 1988 the Trustee filed a motion to convert the case from Chapter 11 to Chapter 7, and this motion was granted by the Bankruptcy Court on May 17, 1988. On October 14, 1988 Paccar filed a motion asserting a claim for administrative expenses amounting to $413,561.71, plus interest and fees. Pursuant to a recourse obligation, Nalley Motor Trucks (“Nalley”), Appellee herein, paid Paccar $370,915.96 and was assigned all of Paccar’s claims against the Debtor as successor-in-interest. Nalley was subsequently substituted for Paccar in the bankruptcy case on February 12, 1990. At trial, Nalley presented expert testimony that the “Blue Book” value of the tractors on the date of bankruptcy filing was about $575,000. Nalley’s expert had not personally inspected the vehicles, but he relied on photographs and business records compiled during inspections of the vehicles at the time of repossession. Nalley alleged that the $60,000 received from the private sale represented the fair market value of the vehicles at the time of repossession because, by then, all but two of the repossessed vehicles were salvage value only. The Trustee contended that the vehicles had a retail resale value of $425,873. The Bankruptcy Court agreed with Nalley. The Bankruptcy Court awarded $370,-915.96 to Nalley as an administrative ex pense priority pursuant to § 507(b) of the Bankruptcy Code for the diminution in value of the collateral that occurred because of Debtor’s continued use of the trucks pursuant to the automatic stay in bankruptcy. This award equalled the sum that Nalley paid Paccar on its recourse obligation. The District Court affirmed this award. II. DISCUSSION A. Nature of Claim At the outset, we must clarify the nature of Nalley’s claim in order to focus on the issues actually involved in this case. The Trustee argued both in his briefs and at oral argument that Nalley’s claim is barred by Paccar’s alleged failure to comply with foreclosure laws of the State of Georgia. The Trustee contends that because Paccar failed to carry out foreclosure and sale of the collateral according to the terms of the Georgia Motor Vehicle Sales Finance Act and the Georgia Commercial Code, Nalley, as successor-in-interest, cannot assert a claim against Debtor’s estate based on the loss suffered by Paccar when the sale of the collateral produced less than the balance due on the purchase money notes. This argument misses the point. A claim for administrative expenses under 11 U.S.C. § 507(b) is not a claim for a deficiency on the underlying obligation which financed Debtor’s purchase of the collateral. The Trustee appears to be correct in asserting that compliance with state law controls a creditor’s right to claim, against a bankruptcy estate, a deficiency on a contract after foreclosure of a lien. We need not reach that question, however, because this case does not present that issue. Instead of a contract deficiency claim, Nalley asserts a claim for administrative expenses for the value of goods furnished to the bankruptcy estate after imposition of the automatic stay. Section 507 of the Bankruptcy Code affords first priority to administrative expenses “to encourage the provision of goods and services to the estate, and to compensate those who expend new resources attempting to rehabilitate the estate.” In re Pulaski Highway Express, Inc., 57 B.R. 502, 505 (Bankr.M.D.Tenn.1986). Section 507(b) states: If the trustee, under section 362, 363, or 364 of this title, provides adequate protection of the interest of a holder of a claim secured by a lien on property of the debtor and if, notwithstanding such protection, such creditor has a claim allowable under subsection (a)(1) of this section arising from the stay of action against such property under section 362 of this title, from the use, sale, or lease of such property under section 363 of this title, or from the granting of a lien under section 364(d) of this title, then such creditor’s claim under such subsection shall have priority over every other claim allowable under such subsection. 11 U.S.C. § 507(b). This section provides that when adequate protection has been given to a secured creditor and later proves to be inadequate, the creditor becomes entitled to a superpriority administrative expense claim to the extent that the proffered adequate protection was insufficient. Grundy Nat’l Bank v. Rife, 876 F.2d 361, 363 (4th Cir.1989); In re James B. Downing & Co., 94 B.R. 515, 520 (Bankr.N.D.Ill.1988); In re McGill, 78 B.R. 777, 779 (Bankr.D.S.C.1986); In re Mutschler, 45 B.R. 494, 496 (Bankr.D.N.D.1984), aff'd Grundy Nat’l Bank v. Rife, 102 B.R. 57 (Bankr.W.D.Va.1987); In re Callister, 15 B.R. 521, 528 (Bankr.D.Utah 1981). Administrative expenses are governed by § 503(b) of the Bankruptcy Code, which provides, in part, that administrative expenses include “the actual, necessary costs and expenses of preserving the estate.” 11 U.S.C. § 503(b)(1)(A). Within the scheme of the Bankruptcy Code, § 507(b) “converts a creditor’s claim where there has been a diminution in the value of a creditor’s secured collateral by reason of a § 362 stay into an allowable administrative expense claim under § 503(b).” Grundy Nat’l Bank, 876 F.2d at 363-4. Accordingly, the question of whether Nalley could pursue a deficiency claim on the installment purchase contracts under the laws of Georgia is irrelevant to the central issue of this case which is whether Nalley was entitled to recover administrative expenses under section 507(b) of the Bankruptcy Code. This administrative expense claim is based on the insufficiency of adequate protection in covering the post-petition diminution in value of the trucks furnished by Paccar and used by the estate. Under Grundy Nat’l Bank, this is a separate claim from a deficiency claim. B. Entitlement to Administrative Expense Claim 1. Benefit to Bankruptcy Estate In addition to contending that Nalley’s claim is barred by failure to comply with state law, the Trustee also raises several arguments alleging that Nalley failed to establish a valid administrative expense claim. First, the Trustee argues that a pre-petition secured creditor cannot elevate his claim to a super-priority administrative expense claim just because the debtor used the property post-petition and adequate protection proved to be inadequate. The Trustee insists that in order for a claim to qualify as an “actual, necessary cost and expense of preserving the estate” under 11 U.S.C. § 503(b), the creditor must establish that there has been an actual, concrete benefit to the estate on account of a transaction with the debtor which is beneficial to the estate. App.Br. at 44-46, citing In re Subscription Television, 789 F.2d 1530 (11th Cir.1986); In re James B. Downing & Co., supra; In re Jartran, Inc., 732 F.2d 584 (7th Cir.1984); and In re Advisory Info. and Management Sys., Inc., 50 B.R. 627 (Bankr.M.D.Tenn.1985). The Trustee alleges further that mere continued use of collateral by a debtor-in-possession is not enough to establish an administrative expense claim because such a claim requires the advancement of goods or services pursuant to a post-petition transaction. Based on these principles, the Trustee argues that Nalley has only a deficiency claim on the installment contracts because its predecessor-in-interest, Paccar, did not provide any new value to the estate after the imposition of the automatic stay. However, this case does involve a post-petition transaction beneficial to Debtor’s estate rather than a mere continued use of the trucks by Debtor. Paccar consented to forgoing foreclosure on its secured collateral only after negotiating for adequate protection payments in return for leaving the trucks in Debtor’s possession. Facing a similar claim of administrative expenses for failed adequate protection, the court in In re Mutschler stated: Section 503(b)(1)(A) of the Code entitles a creditor to administrative priority for any claim representing an actual and necessary cost of preserving the estate. Section 507(b) is an adjunct to the adequate protection alternative set forth in section 361. Section 507(b) simply provides that where adequate protection has been extended to a secured creditor and later proves to be inadequate, the creditor then becomes entitled to a superpriority administrative expense claim to the extent that the proffered adequate protection was insufficient. Adequate protection is a means of preserving a creditor’s interest in secured collateral subject to post-petition use by the debtor. Presumably such use is desired by the debtor and is contributing to the reorganization effort. Otherwise, the debtor would doubtless return the collateral and forgo providing adequate protection. This beneficial use by the debtor is normally “paid for” by the adequate protection. Where adequate protection becomes inadequate or otherwise fails and the use nonetheless continues, section 507(b) comes into play by covering the creditor’s unprotected interest by according it priority administrative expense status. (emphasis added) 45 B.R. at 496; accord In re McGill, 78 B.R. at 780. (That the use of the collateral was necessary to the debtor’s reorganization is evidenced by the debtor’s efforts to retain the collateral by attempting to provide adequate protection payments). Here, as in In re Mutschler and In re McGill, Debtor actively sought to retain possession of the tractors by agreeing to pay Paccar monthly adequate protection payments. The negotiation for continued possession of the tractors in return for adequate protection is a post-petition transaction providing new value to the bankruptcy estate. Debtor’s efforts to retain the tractors demonstrate that the collateral was beneficial to the estate. When a debt- or-in-possession uses a creditor’s equipment to generate funds for the operation of a business in bankruptcy, the creditor’s expense of providing that equipment is an actual and necessary cost of preserving the bankruptcy estate under § 503(b). In re CM Sys., Inc., 86 B.R. 286, 287 (Bankr.M.D.Fla.1988). The Trustee has not argued that Debtor did not use the trucks while they were in Debtor’s possession, so presumably the trucks were used to generate funds for the operation of Debtor’s business. Thus, expenses incurred by Pac-car in furnishing these trucks to the Debt- or qualify as actual and necessary expenses of preserving the estate. The cases relied upon by the Trustee are readily distinguishable from the case at bar. In In re Jartran, Inc., supra, the debtor enjoyed the benefits of advertising services that were performed on the basis of pre-petition contracts. The advertising service provider claimed entitlement to administrative priority for the cost of providing the ads, but the Seventh Circuit Court of Appeals held that the debtor engaged in no post-petition transaction which induced the provision of the ads because the commitment to provide the ads was formed before the debtor filed its bankruptcy petition. In re Jartran, Inc., 732 F.2d at 588-89. In this case, by contrast, Debtor induced the post-petition provision of goods to the estate by negotiating for retention of the trucks, otherwise subject to repossession, in return for adequate protection payments. Rather than simply enjoying the benefits of a pre-petition commitment, Debtor actively bargained for the use of the tractors after filing its bankruptcy petition. In Advisory Information and Management Systems, supra, the Bankruptcy Court considered a claim for administrative expenses under section 503(b)(1)(A) by a creditor who allowed the debtor-in-possession to continue using the collateral without seeking adequate protection for one year after the bankruptcy petition was filed. After commenting that there is “nothing in § 503 remotely suggesting that administrative expense priority was intended as an optional remedy to adequate protection of a secured claimholder’s interest in property of the estate,” the court held that a secured creditor does not “contribute” to the administration of an estate by merely sitting back and allowing the debt- or-in-possession to continue using property which the pre-petition debtor owned. In re Advisory Info. and Management Sys., Inc., 50 B.R. at 630. Similarly, the Bankruptcy Court in In re James B. Downing & Co., supra, held that a creditor who did not seek adequate protection for its lien and who did not advance any post-petition costs or expenses to preserve the estate was not entitled to claim § 503 administrative expenses. 94 B.R. at 521. Unlike the creditors in Advisory Information and Management Systems and James B. Downing, Nalley’s predecessor-in-interest utilized the statutory procedures provided for protection of its collateral in the possession of Debtor. Nalley does not proffer § 503 as an alternative to adequate protection of its secured claim. Instead of merely sitting back and allowing Debtor to continue using the tractors, Paccar asserted its undeniable right to repossession and agreed to forgo repossession only after and because Debtor consented to paying adequate protection. Therefore, Nalley’s administrative expense claim is not barred under the inaction theory which controlled in Advisory Information and Management Systems and James B. Downing. Finally, in Subscription Television, supra, this Court faced a situation where the debtor held a post-petition sixty day executory contract which obligated the creditor to provide the debtor with unscrambled television broadcast signals, but the debtor actually used the broadcast signals only seventeen days. The provider of the broadcast signals claimed a § 507 administrative expense priority for the entire sixty day period on the theory that it had been deprived of its own use of the television signals because the contract required it to keep the signals available to the debt- or. This Court held: That which is actually utilized by a Trustee in the operation of a debtor’s business is a necessary cost and expense of preserving the estate and should be accorded the priority of an administrative expense. That which is thought to have some potential benefit, in that it makes a business more likely salable, may be a benefit but is too speculative to be allowed as an “actual, necessary cost and expense of preserving the estate.” In re Subscription Television, 789 F.2d at 1532. Thus, this Court denied the creditor’s administrative expense claim for the portion of the contract period wherein the debtor did not actually use the broadcast signals. The debtor in the case at bar enjoyed more than mere potential post-petition use of collateral. Rather than entertaining a speculative benefit, the Trustee actively used Paccar’s collateral throughout its post-petition possession. This is not disputed. The reasoning of Subscription Television, therefore, leads to the conclusion that Nalley is entitled to an administrative expense priority because the Trustee actually used the collateral to the benefit of the debtor’s estate. Because this case does not involve a debtor’s potential use of collateral, the Trustee’s reliance on Subscription Television is misplaced. 2. Increase in Deficiency Claim The second argument raised by Trustee to persuade this Court that Nalley failed to establish entitlement to an administrative expense claim is based on language from the James B. Downing case. The court in James B. Downing faced the question of whether the provision of adequate protection was a prerequisite to the grant of an administrative expense priority. In resolving this issue the court quoted a passage from Bankruptcy by Ginsberg which states in part: If the adequate protection given by the court proves to be inadequate, that is, the secured creditor winds up being injured from the continuation of the stay, use of the property, or funding the estate in the sense that its unsecured deficiency claim against the estate is increased, the creditor is entitled to a su-perpriority for the increase in the deficiency. In re James B. Downing & Co., 94 B.R. at 521, quoting Ginsberg, Bankruptcy ¶ 10,-705 (1986). The Trustee seizes upon this language as establishing that an administrative expense claim is based on the amount by which an unsecured deficiency claim increases by virtue of the automatic stay. Here, the Trustee maintains that Nalley had no unsecured deficiency claim because of Paccar’s failure to comply with Georgia foreclosure laws, and accordingly no administrative expense claim could arise because there was no increase in an unsecured deficiency claim.
893633-3892	PER CURIAM: Douglas Goodson was sentenced to two concurrent fifteen year prison terms, each with a five year special parole term, for possession of heroin with intent to distribute and distribution of heroin, under 21 U.S.C. § 841(a)(1). He appeals from the denial of his motion to vacate the sentences pursuant to 28 U.S.C. § 2255. Goodson claims that he is entitled to a new trial, or at least resentencing, because he was inadequately represented by counsel during the trial and sentencing. We disagree. Initially, Goodson contends that his counsel’s failure to interview or to call for testimony a government informer who witnessed the drug transaction in question shows that he did not have effective assistance of counsel. However, the district court found that the attorney made a tactical decision that the informant’s testimony would be detrimental to his client’s case. Absent a showing that the tactical decision of counsel was so unreasonable in light of the need for the testimony that it amounted to a deprivation of an attorney who acted within “the range of competence demanded of attorneys in criminal cases,” McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), we are reluctant to second guess the tactics of trial lawyers. United States v. Burkley, 511 F.2d 47, 50 (4th Cir. 1975). In all events, the defendant, although asked by his attorney, did not request his attorney to subpoena the witness. The finding of the district court to that effect is not clearly erroneous. F.R. C.P. 52(a). Accordingly, we believe that this contention is without merit. Goodson next contends that, in the sentencing hearing, the district court improperly considered prior illegal convictions; he also claims that his counsel’s failure to object to the court’s consideration of those convictions constituted ineffective assistance of counsel. The district court, after the § 2255 hearing, concluded that the length of the sentences imposed on Goodson was unaffected by the court’s knowledge of the allegedly illegal convictions. It complied with and followed Stepheney v. United States, 516 F.2d 7, at p. 9 (4th Cir. 1975). Thus, the appellant would not have been harmed by any failure of his attorney to object to the consideration of the convictions. We also note no effort has been made to set them aside in other proceedings. See Stepheney, p. 9. Goodson next complains that his attorney gave him inaccurate advice concerning the possibility of gaining a reduction of his sentences. It appears that the attorney erroneously told Goodson that the trial court did not have jurisdiction to reduce the sentences when in fact the court’s jurisdiction extended for 120 days from the date of sentencing. F.R.Cr.P. 35. However, even if reliance on the attorney’s misstatement caused Goodson to forego application for reduction of sentence, he was not prejudicially injured by such error. When he later filed a belated motion to reduce his sentence, the district court, while dismissing the motion as untimely, stated as an alternate reason, much in the manner approved in Stepheney, that even if the motion had been timely made, the court would not have reduced the sentence. The court thus did all it could have done had it vacated the sentences and resentenced Goodson. There is no contention the district court did not have adequate information at hand, and to remand the case for resentencing following such ruling would be futile and accomplish nothing. Even conceding technical error, we are of opinion it is harmless. We have considered the other assignments of error and find they are without merit, save one. One of Goodson’s sentences must be vacated. He was convicted of possession of heroin with intent to distribute and of distribution of heroin. He received concurrent fifteen year sentences for each count, with a special parole term for each count as well.
6111919-10663	ORDER KOVACHEVICH, District Judge. This cause is before the Court on appeal from a determination by the United States Bankruptcy Court for the Middle District of Florida, the Honorable Alexander L. Paskay, Chief Bankruptcy Judge, presiding and pursuant to 28 U.S.C. § 158(a). The legal issue on appeal is whether the Bankruptcy Court committed reversible error by dismissing, with prejudice, Count I and II of Appellants’ Second Amended Complaint and the remaining count replead in Appellants’ Third Amended Complaint. STATEMENT OF FACTS On September 16,1993, the Appellees, ARTHUR L. JOHANNESSEN, JR. and CLAUDETTE JOHANNESSEN, filed their voluntary petition for bankruptcy, under Chapter 7, with the United States Bankruptcy Court for the Middle District of Florida. Subsequently, they filed a Schedule F, disclosing Appellants, JEFFREY R. FULLER and NANCY L. FULLER, as unsecured creditors. On December 16, 1993, Appellants filed their initial complaint to determine dis-chargeability of debt, which instituted the adversarial proceedings in Appellees’ bankruptcy proceedings. The Bankruptcy Court entered an order of conditional dismissal for failure to include the appropriate caption, filing fee and appropriate copies of Summons. Appellants then filed their amended complaint to determine dischargeability of5 debt. Under Fed.R.Civ.P. 12(b)(6), made applicable by F.R.B.P. 7012, Appellees filed a motion to dismiss. On April 5, 1994, the Bankruptcy Court entered its order granting motion to dismiss for failure to state a cause of action and granting leave for the filing of a second amended complaint. On April 20, 1994, Appellants filed their second amended complaint to determine the dischargeability of debt. Appellees again responded by filing a motion to dismiss pursuant to F.R.B.P. 7012. On July 18, 1994, the Bankruptcy Court entered an order granting the motion to dismiss for failure to state a cause of action and dismissing Counts I and II with prejudice, but dismissing Count III with leave to amend. Thereafter, Appellants filed their third amended complaint to determine discharge-ability of debt. Again, Appellees filed a motion to dismiss pursuant to F.R.B.P. 7012. On September 13, 1994, the Bankruptcy Court, the Honorable Judge Alexander L. Paskay presiding, entered an order granting the motion to dismiss for failure to state a cause of action and dismissing the third amended complaint with prejudice. Appellants contend that their second and third amended complaints stated three causes of action upon which relief can be granted. First, in Count I of the second amended complaint, Appellants contend that 11 U.S.C. § 523(a)(10) empowers the Court to determine the debt as not dischargeable under 11 U.S.C. § 727(a)(4). Next, in Count II of the second amended complaint, Appellants argue that 11 U.S.C. § 523(a)(4) authorizes the Court to determine the debt as not dischargeable. Finally, in the remaining count in the third amended complaint, Appellants assert that 11 U.S.C. § 523(a)(2)(A) allows the court to except the debt from dischargeability. Conversely, Appellees argue Count I of the second amended complaint fails to state a cause of action upon which relief can be granted because 11 U.S.C. § 523(b) enables the Court to determine the debt dischargea-ble. Further, Appellees assert Count II of the second amended complaint fails to state a cause of action upon which relief can be granted because 11 U.S.C. § 523(a)(4) requires a fiduciary duty. Appellees argue a fiduciary duty never existed between the parties. Finally, Appellees contend the remaining count of the third amended complaint also fails to state a cause of action upon which relief can be granted. Appellees allege that Appellants’ third amended complaint failed to enumerate Appellees’ actionable, fraudulent behavior. Rather, Appellees argue Appellants’ third amended complaint merely recites 11 U.S.C. § 523(a)(2)(A). DISCUSSION A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Count I of the Appellants’ second amended complaint asserts that the debt is nondischargeable pursuant to 11 U.S.C. § 523(a)(10), which enables the Court to determine the debt as not dischargeable under 11 U.S.C. § 727(a)(4). However, 11 U.S.C. § 727(a)(4) is clearly inapplicable to the ease at bar inasmuch as Appellants have failed to allege any facts regarding 11 U.S.C. 727(a)(4), which allows the Court to grant the debtor discharge from a debt unless: (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account; (B) presented or used a false claim; (C) gave, offered, received, or attempted to obtain money, property, or advantage or a promise of money, property, or advantage, for acting or forbearing to act; or (D) withheld from an officer of the estate entitled to possession under this title, any recorded information, including books, documents, records, and papers, relating to the debtor’s property or financial affairs Appellants have failed to assert any fact or evidence giving rise to a determination of nondischargeability under § 727(a)(4). Appellants havé not asserted that Appellees “made a false oath or account” in connection with this ease, nor have Appellants asserted Appellees “presented or used a false claim” in connection with this case. Finally, Appellants have not asserted that Appellees acted in any manner to meet the criteria enumerated in (C) or (D) of § 727(a)(4). Thus, Appellants’ reliance on Section § 727(a)(4) to save Appellants’ assertion of 11 U.S.C. § 523(a)(10) to determine the debt nondis-chargeable is misplaced. In any case, although the debt was previously declared nondisehargeable by the Bankruptcy Court and affirmed on appeal by this Court, the basis for that determination was not a substantive adjudication of the validity vel non of the claim. The basis of that determination was strictly the failure of the Appellees to schedule the debt pursuant to 11 U.S.C. § 523(a)(3). Thus, unless it is prohibited in the Bankruptcy Code by the six (6) year limitation for re-filing a petition, 11 U.S.C. § 523(b) permits the Court to determine the debt dischargeable in a subsequent Chapter 7 proceeding. 11 U.S.C. § 523(b) provides that: (b) Notwithstanding subsection (a) of this section, a debt that was excepted from discharge under subsection (a)(1), (a)(3), or (a)(8) of this section, under section 17a(l), 17a(3), or 17a(5) of the Bankruptcy Act, under section 439A of the Higher Education Act of 1965 (20 U.S.C. 1087-3), or under section 733(g) of the Public Health Service Act (42 U.S.C. 294f) in a prior case concerning the debtor under this title, or under the Bankruptcy Act, is dischargeable in a case under this title unless, by the terms of subsection (a) of this section, such debt is not dischargea-ble in the case under this title. Therefore, because 11 U.S.C. § 523(b) specifically lists § 523(a)(3) debts as dischargea-ble, this Court affirms the Bankruptcy Court’s dismissal of Count I of Appellants’ second amended complaint. As to Count II of Appellants’ second amended complaint, Appellants utilize 11 U.S.C. § 523(a)(4) as a basis for determining the nondischargeability of the debt. § 523(a)(4) does not allow the discharge from any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or lareeny[.]” Since the amendment of the Bankruptcy Code in 1970, federal law governs issues of nondischargeability. Grogan v. Garner, 498 U.S. 279, 286, 284, 111 S.Ct. 654, 658, 112 L.Ed.2d 755 (1991). Hence, Section § 523(a)(4)’s usage of the term “fiduciary” must be interpreted according to federal law standards and not more lenient state court decisions as Appellants urge. In re Angelle, 610 F.2d 1335 (5th Cir.1980). The United States Supreme Court has held that “fiduciary” is not a term to construe expansively. Quaif v. Johnson, 4 F.3d 950, 953 (11th Cir.1993), citing Chapman v. Forsyth, 43 U.S. (2 How.) 202, 11 L.Ed. 236 (1844), Upshur v. Briscoe, 138 U.S. 365, 11 S.Ct. 313, 34 L.Ed. 931 (1891); Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934). Rather, the term refers to a “technical” trust. Id. Furthermore, the Supreme Court stipulated that the “technical” trust must have existed prior to the act which created the debt and without reference to the debt creating act. In re Angelle, 610 F.2d 1335 (5th Cir.1980) citing Upshur v. Briscoe, 138 U.S. 365, 11 S.Ct. 313, 34 L.Ed. 931 (1891); Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934). Consequently, Appellants’ reliance on § 523(a)(4) is erroneous. First, to construe the relationship between the parties as a “fiduciary” would be to oppose the holding of the Supreme Court, directing courts not to construe the term expansively. The relationship between the parties in the case at bar was strictly a contractual relationship, not a “technical” trust and thus, did not at any time rise to the level of a fiduciary. Even if the Supreme Court’s holding were to be disregarded and the term construed expansively in order to find a fiduciary relationship, Appellants have not alleged that the fiduciary relationship existed prior to the contested act. Rather, Appellants point to the debt creating behavior as the basis of the fiduciary relationship, which removes Appellants’ claim from within the purview of § 523(a)(4) under the Supreme Court’s analysis in Ups-hur. Id. Therefore, this Court affirms the Bankruptcy Court’s dismissal of Count II of Appellants’ second amended complaint. Finally, in the remaining count of the third amended complaint, Appellants seek a determination dischargeability of the debt under 11 U.S.C. § 523(a)(2)(A). Section 523(a)(2)(A) does not discharge debt “for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by — false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition[.]” In Grogan, the Court held the preponderance of the evidence standard, not the clear and convincing evidence standard, applies to all exceptions from dischargeability. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991).
881112-16843	ILANA DIAMOND ROVNER, Circuit Judge. After defendant Jeffery Laufle pleaded guilty to a marijuana-trafficking conspiracy, the district court ordered him to serve a prison term of 76 months, a sentence within the range specified by the United States Sentencing Guidelines. Anticipating the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the court indicated that it would impose the identical sentence if the Guidelines were treated as advisory, which in the wake of Booker they now are. Laufle appeals, contending that the district court, in calculating the Guidelines range, improperly denied him a favorable adjustment to his offense level for being a minor participant in the conspiracy and that the court also erred in denying the prosecutor’s request for a downward departure for providing substantial assistance to the government. We see no error in the calculation of the Guidelines sentencing range, nor do we find the sentence imposed unreasonable. We therefore affirm Laufle’s sentence. I. Beginning in or around 1998, Ralph Villegas caused multi-kilogram quantities of marijuana to be shipped from Texas to co-conspirator Gale Kleman in the LaCrosse, Wisconsin area. Kleman distributed marijuana in the Minneapolis-St. Paul region, and Villegas had a connection in Texas who could obtain the marijuana for him. (Villegas actually had begun distributing marijuana to Kleman in 1995, but during the first few years of their business relationship, Kleman had taken possession of the marijuana in Texas.) Between 1998 and September 2003, when the conspiracy among Villegas, Kleman, and their associates was exposed, at least 1,433 kilograms of marijuana was dropped off in the LaCrosse area for forwarding to Kleman in Minneapolis. Laufle owned an industrial coating and painting company that maintained its office and warehouse in Holmen, Wisconsin, near LaCrosse. After he began receiving marijuana in LaCrosse, Kleman recruited Laufle to permit the use of the warehouse as an occasional drop-off point for marijuana shipments. Laufle would later admit that he received and stored two to three shipments annually at the warehouse for a period of four or five years. Laufle arranged for an acquaintance, Steven Lee, to receive and help unload shipments at the warehouse when Laufle was not available to do so. Typically the marijuana was stored at Laufle’s warehouse for only a short period of time before someone retrieved and transported it to its final destination in Minneapolis. Laufle indicated that he drove roughly half of these shipments to Minneapolis himself. Depending on the size of the shipment, Laufle was paid between $5,000 and $7,000 for receiving and storing the marijuana; and he was given another $1,000 for each load that he drove to Minnesota. In June 2004, the government filed an information charging Laufle with conspiring to possess with the intent to distribute in excess of 50 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). Pursuant to a written plea agreement with the government, Laufle waived indictment and pleaded guilty to the charge. Also pursuant to the plea agreement, the government agreed to move for a downward departure for substantial assistance in the event Laufle cooperated to a sufficient extent. Laufle appeared for sentencing on November 3, 2004. Employing the November 2003 version of the Guidelines, the probation officer proposed a total offense level of 27 that reflected a base offense level of 32 for a narcotics offense involving 1,000 to 3,000 kilograms of marijuana, see U.S.S.G. § 2Dl.l(c)(4), a two-level reduction pursuant to the safety-value provisions of §§ 2Dl.l(b)(6) and 5C1.2, and a three-level reduction for timely acceptance of responsibility, see § 3E1.1. Coupled with a criminal history category of I, the adjusted offense level called for a sentence in the range of 70 to 87 months. The district court adopted these calculations. The court rejected Laufle’s contention that he was entitled to an additional two-level reduction in the offense level for having been a minor participant in. the conspiracy. See U.S.S.G. § 3B1.2(b). The court pointed out that Laufle had allowed marijuana to be stored in his warehouse, that he had helped unload the marijuana for storage, that he had transported some of the marijuana to Minnesota, and that he had recruited Lee to provide assistance in receiving the marijuana. R. 24 at 10. The court agreed with Laufle that his role in the offense “was certainly less than that of Kleman and Villegas[,] who appear to be regional middlemen with the large scale suppliers and the local dealers.” Id. at 11. But the court disagreed with Laufle that his lesser role as compared to the two people who organized the conspiracy was insufficient to qualify him as a minor participant. You don’t look at the two key players and say, Oh, gee, he was less culpable than were the bosses and accordingly he is then a minor participant. It isn’t the way it works. It looks to all of those who were involved in the offense ... and [Laufle] was not substantially less culpable than the average participant. Id. at 11-12. On comparing Laufle with the entire set of individuals identified as co-conspirators in this case, the court found that his involvement with the conspiracy was “certainly much more substantial” than the complicity of others and that Laufle “was not substantially less culpable than the average participant.” Id. at 12. The court also denied the government’s section 5K1.1 motion for a downward departure based on the assistance Laufle had provided to the government. The government represented that Laufle’s cooperation had made it less difficult to establish the full extent of the conspiracy, had corroborated the information provided by informants, and had helped tie together the government’s case. However, the court was not persuaded that Laufle’s assistance was so substantial as to warrant a downward departure. R. 24 at 12-13. The court subsequently added that although Laufle had been “cooperative” and “helpful,” the convictions of neither Villegas nor Kleman (who were charged separately) could be attributed to Laufle’s assistance. Id. at 14H5. Faced with a Guidelines range of 70 to 87 months, the court elected to impose a sentence of 76 months. The court noted that Laufle’s criminal conduct “wasn’t a one-time deal. It wasn’t aberrant. It wasn’t anywhere close to that.” R. 24 at 19. The court also pointed out that in contrast to many defendants, Laufle was not someone who had led a deprived life or who had lacked opportunities to succeed in legitimate ways, but rather had succumbed to greed when presented with a chance to make a substantial amount of money in narcotics trafficking. Id. at 19-20. Finally, the court observed that Laufle, at age 50, was a mature individual who “knows better.” Id. at 19. The court also considered what sentence it might impose if the Sentencing Guidelines were held unconstitutional by the Supreme Court. (By the time Laufle was sentenced, this court had held in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), barred a sentencing judge from making findings of fact that increased a defendant’s offense level under the Guidelines (and the corresponding sentencing range). The district court noted that Laufle’s offense level was based solely on conduct to which he had stipulated in his plea agreement. R. 24 at 4-5, 13. Nonetheless, the court correctly anticipated the possibility that the Supreme Court, whose own decision in Booker was still two months off, might declare mandatory application of the Guidelines unconstitutional even in such a case.) Taking into consideration “all relevant facts” and treating the Guidelines not as binding but rather as “a reliable indicator” of what an appropriate sentence would be, the court concluded that a sentence of 76 months was called for. Id. at 21-22. [The Court has] considered the substantial amount of marijuana which was a part of this offense. It has considered the fact that there is responsibility demonstrated by the defendant for his failure to follow the law in this matter. There is also the fact that the transactions occurred over a lengthy period of time and numerous instances were involved. And having considered all relevant facts and circumstances ... the Court then imposes the same sentence as previously announced. Id. II. We begin our review with a few words about the Supreme Court’s decision in Booker, which establishes the scope of our review and sets the stage for the particular arguments that Laufle is making in this appeal. Booker, of course, deemed the Sentencing Guidelines inconsistent with the Sixth Amendment insofar as they mandated sentences within specified ranges that frequently (although not always) turned on factual findings rendered by the sentencing judge rather than a jury. 125 S.Ct. at 749-51, 755-56. The Supreme Court remedied the constitutional problem by severing and excising the statutory provisions that (with narrow exceptions) compelled district judges to sentence within the specified Guidelines range and that provided for appellate review to ensure, inter alia, that the lower courts did so. Id. at 764-65. As a result, district courts, though they remain obliged to ascertain and consult the sentencing range called for by the Guidelines, are no longer obliged to impose a sentence within that range. E.g., United States v. Julian, 427 F.3d 471, 490 (7th Cir.2005). And this court, although it still considers whether the district court properly calculated the Guidelines sentencing range, ultimately reviews the sentence imposed to determine whether it is reasonable. See Booker, 125 S.Ct. at 765-66; United States v. Paladino, 401 F.3d 471, 484 (7th Cir.), cert. denied, —U.S.-, 126 S.Ct. 106, 163 L.Ed.2d 118 (2005). When it sentenced Laufle, the district court did so in the first instance treating the sentencing range specified by Guidelines as mandatory. In calculating the Guidelines range, the court had made no factual findings that boosted Laufle’s offense level and the resulting sentencing range. Accordingly, under this court’s 2004 decision in Booker, application of the Guidelines did not impinge on Laufle’s Sixth Amendment right to a jury trial. 375 F.3d at 515. However, the Supreme Court’s Booker decision, which chose to remedy the Sixth Amendment problem by excising the statutory provision that bound the courts to follow the Guidelines, renders the Guidelines advisory in all cases. In retrospect, then, it was error for the district court to consider itself obligated to sentence within the Guidelines range. See United States v. White, 406 F.3d 827, 835 (7th Cir.2005) (“the mere mandatory application of the Guidelines — the district court’s belief that it was required to impose a Guidelines sentence — constitutes error”). Nonetheless, the alternative sentence that the district court announced makes clear that Laufle was not prejudiced by the Booker error. Anticipating that the Supreme Court might find the Guidelines unconstitutional, the court considered what sentence it would impose if it considered the Guidelines “merely as a reliable indicator” of an appropriate sentence — in other words, treating the Guidelines as advisory rather than binding. R. 24 at 22. Taking into account “all relevant facts and circumstances,” the court concluded that it would still impose a sentence of 76 months. Id. This is not a case, then, that raises any doubt as to whether the district court might have imposed a sentence outside the Guidelines range if the court had known that it had the discretion to do so. See Paladino, 401 F.3d at 482-83; United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005). The court’s alternative sentence makes clear that the court would not have sentenced Laufle differently. See United States v. George, 403 F.3d 470, 472-73 (7th Cir.), cert. denied, — U.S.-, 126 S.Ct. 636,163 L.Ed.2d 515 (2005). Although sentencing judges enjoy much broader discretion after Booker, they remain obliged to consult the Guidelines in determining an appropriate sentence, and we must therefore consider whether the district court properly calculated the (advisory) Guidelines sentencing range. E.g., Julian, 427 F.3d at 488. Laufle contends that the district court made two errors that resulted in a higher Guidelines offense level and sentencing range than should have applied. Specifically, Laufle argues that the court erroneously denied him a downward adjustment pursuant to section 3B 1.2(b) for being a minor participant in the offense and denied the government’s motion for a downward departure pursuant to section 5K1.1 for providing substantial assistance to the government. As for whether Laufle should have been given credit for being a minor participant in the conspiracy, we discern no clear error in the district court’s determination that he was not. See United States v. Parra, 402 F.3d 752, 762-63 (7th Cir.2005) (decisions as to adjustment for lesser role in offense still reviewed for clear error after Booker), cert. denied — U.S.-, 126 S.Ct. 1181, — L.Ed.2d-, 2006 WL 152074 (2006). Section 3B1.2 provides a range of adjustments for a defendant whose limited role in the offense renders him “substantially less culpable than the average participant.” U.S.S.G. § 3B1.2, comment. (n.3(A)). The two-level adjustment for being a “minor” participant is intended for the defendant “who is less culpable than most other participants, but whose role could not be described as minimal.” Id., comment, (n.5). Laufle undoubtedly played a lesser role in the charged conspiracy than did Villegas and Kleman, as the district court expressly recognized. R. 24 at 11. But Villegas and Kleman were not the only other members of the conspiracy. A number of other individuals (the probation officer identified at least seven) were involved in a variety of ways, including sourcing the marijuana, transporting the marijuana and arranging that transportation, and unloading it at Laufle’s warehouse. R. 22 at 4r-8. One could reasonably think of those persons as typifying the “average” participant in this conspiracy, and the district judge reasonably concluded that Laufle was not less culpable than those individuals, let alone substantially less culpable. On the contrary, Laufle participated in the conspiracy for a period of between four and five years, he accepted and stored two to three shipments of marijuana annually at his warehouse over that period of time, he drove half of those shipments to Minnesota himself, and he acknowledged being paid tens of thousands of dollars for his assistance. Under these circumstances, the district court committed no clear error in refusing to characterize Laufle’s role in the conspiracy as “minor.” Cf. United States v. Gonzalez, 319 F.3d 291, 300 (7th Cir.) (no clear error in denying mitigating role adjustment to defendant who “executed the important task of securing the warehouse for delivery” of cocaine), cert. denied, 539 U.S. 921, 123 S.Ct. 2289, 156 L.Ed.2d 141 (2003). Laufle also contends that the district judge improperly conditioned a downward departure for substantial assistance on proof that his cooperation with the government was responsible for the conviction of another individual. The way in which Laufle has framed this argument reflects an attempt to fit it within the narrow review framework for departures that we employed prior to the Supreme Court’s decision in Booker. Within that framework, a district court’s refusal to depart downward was not reviewable so long as the district court understood its authority to depart and denied the departure request in the exercise of its discretion. See, e.g., United States v. Winston, 34 F.3d 574, 581 (7th Cir.1994). Only when the court mistakenly believed that it lacked the authority to depart or committed some legal error in denying the request might we intervene. See id. Thus, Laufle posits that the district court, in looking for proof that he had helped the government obtain the conviction of a co-defendant, engrafted a requirement for the departure that the Guidelines themselves do not impose. The premise of Laufle’s argument strikes us as inaccurate: The district court noted the absence of proof that Laufle had helped secure someone else’s conviction as an afterthought, R. 24 at 15, after it had already denied the departure motion; the central reason that the court cited for its decision was its perception that Laufle’s assistance could not be characterized as substantial, id. at 13. In any event, in view of the substantial change that Booker has worked on federal sentencing, this is an unnecessary diversion.
611486-19708	RIFKIND, District Judge. In this patent infringement suit plaintiff seeks judgment for damages, profits and injunctive relief. The answers put in issue both validity and infringement and contain counterclaims for declaratory judgment adjudicating the validity of the patent. The patent in suit is No. 2,118,468 issued to plaintiff on May 24, 1938, on an application filed September 28, 1934. It contains six claims of which the first five relate to a method of casting articles of jewelry of intricate design, and the sixth is for an article of jewelry produced by the method. Claim 2 reads as follows: “2. A method of casting articles of jewelry of intricate design consisting in, first making a model of the article desired to be cast, then forming a primary mould in separable sections there-around of plastic material capable of assuming intimate contact with the intricate designs of the model and adapted to retain the assumed shape, then removing the model, then by centrifugal force projecting into the mould cavity and completely filling same a molten material of a low fusing point which will not injure the mould, then removing the fusible pattern so cast, then investing said pattern in a refractory material which will assume all the contours of its intricate design to form a secondary mould, then heat treating said investment removing the low fusing pattern therefrom, then by centrifugal force proj ecting molten-metal into the heat treated mould, and finally removing said mould from the cast article.” Claims 1, 3, 4 and 5 describe variants of the method. Claim 6 reads as follows: “6. An article of jewelry or a part thereof of a design intricate to the extent of having one or more small projections or depressions made by a process comprising first producing a model of the article to be cast, then forming about said model a primary mould, then removing the model from the primary mould, then introducing into the mould by-force sufficient to deposit the material into the depression or depressions of the primary mould, molten wax or other material of low fusing point that will not injure the primary mould to form a pattern, and employing the pattern so made for the manufacture of a casting mould.” In the specifications the object and the several steps of the process are thus described : “The principal object of this invention is to facilitate the casting of small metal articles, particularly articles of intricate detail such as jewelry which frequently are designed with hollows, undercut portions and perforations, so that they will have a smooth clean surface faithful in detail to the original and free from imperfections or holes, and to enable such result being accomplished with the minimum of expense. “A further object of the invention is to enable the formation of intricate castings which will so closely resemble the original and finished' product that the slow and tedious work of patterning and detail cutting required in connection with present casting methods is eliminated.” The steps in the process are these: 1. A model of the article to be cast is made of wood, metal or other suitable material. 2. This model is placed upon a base and a flexible mould-forming material such as rubber is built up around the model and vulcanized. The mould is then separated into half sections. 3. After removing the model from the mould, the two half sections are brought together again and a suitable quantity of a very low temperature fusing material which may be wax or a metallic alloy such as Wood’s metal, is poured into the gate of the mould and the mould is rotated rapidly in a centrifugal casting machine. The wax is thus forced into the cavity of the mould. 4. The wax pattern thus produced is removed from the mould by separating the half sections of the mould. It is then invested in plaster of paris which will form a suitable mould for the metal which it is ultimately desired to form to that shape. 5. The investing material may be dried out in any suitable manner but in any event the mould created by the plaster of paris is subjected to sufficient heat to melt the wax and all traces of this wax are completely removed from the mould. 6. The cavity within the plaster mould conforms to the wax pattern. The mould (investment) is then placed in a centrifugal casting machine and the molten metal from which the casting is to be made is poured into this mould and is projected by the applied force of the centrifugal action into the fine recesses. The mould is then broken up and the metal replica of the original model is abstracted. The process thus described is a refinement of the ancient “cire perdue” or the “lost wax” process. In brief it calls for two castings for the production of a metal replica of a model. First, a wax casting is produced which in turn is used to form a mould suitable for metal casting; second, a metal casting is formed with the aid of the final mould. There is no dispute concerning the methods pursued by the defendants and intervenors in the manufacture of rings. All use the several steps of the process with the following variations: For the primary mould some use soft metal moulds as well as rubber moulds. To inject the wax into the primary mould all use a centrifuge and some also use an eye dropper or syringe, air gun, air injection machine, hydraulic machine and vacuum casting machine. All have produced and sold articles of jewelry made by the process. At least to the extent that defendants have used centrifugal force to deposit the wax into a primary rubber mould, and all have, there can be no question that they have infringed. The issue of validity is thus reached immediately. At or about the time the plaintiff contrived his process, December, 1933, the jewelry manufacturing industry generally used one of four methods for the fabrication of rings. 1. Handcraft by skilled artisans. 2. Cuttlefish casting, which consists of compressing the model of the ring to be reproduced between two loaves of cuttlefish bone. The yielding surfaces of the bone form a cavity roughly corresponding to the form of the compressed model. A channel or opening between the two loaves permits the molten gold to flow into this cavity, to form a rough replica of the model. This casting is then hand-finished. 3. Sand casting, which consists of imbedding the model in a sand frame which, upon the removal of the model, leaves a cavity into which the molten metal’ is admitted by an opening provided for the purpose. Its advantage over cuttlefish casting is that it permits the production of six to twelve castings from a single mould. The casting is rough and requires hand finishing. 4. Die stamping, which consists of stamping out the ring or parts of it by means of metal dies. This process is very efficient. It is still in extensive use when numerous castings of a single design are desired. Its initial cost is high. The dies for a single ring-design cost from $250 to $2,000. Today cuttlefish casting and sand casting are of little commercial significance. Die stamping and the “lost wax” process are preeminent in the production of rings. The evidence clearly supports a finding that, after Jungersen, the lost wax process as refined by him has been extensively employed in the manufacture of rings; and I shall therefore attribute to thé patent “commercial success”. This, however, does not foreclose consideration of the issue of invention; nor does it render dispensible inspection of the prior art. Defendants rely upon seven items to prove that the patented process is old. In chronological order these are: 1. The Treatises of Benvenuto Cellini, 16th Century. 2. Haseltine, British Patent No. 2467, issued 1875. 3. Spencer, U. S. Patent No. 748,996, issued 1904. 4. Kralund, U. S. Patent No. 1,238,789, issued 1917. 5. La Gravure, Publication, 1926. ó. Slatis-Dee, use and sale of product, 1931. 7. Austenal, use, 1932. Cellini describes in minute detail the “cire perdue” or lost wax process as applied to the casting in bronze of figures of life size or under. The features which distinguish it from the patented process are that Cellini does not use a rubber mould but one made of “Gesso”, that is, plaster of paris or gypsum; he pours his wax, apparently employing no force but gravity to fill his mould; and when the wax is melted out, he allows the molten bronze to flow into its place, again without the use of pressure. Plaintiff, of course, calls attention especially to Cellini’s method of pouring the wax as differentiating it from the patented process. He also argues that Cellini’s method was available only to the artist and not to the artisan because Cellini suggests that after the wax form has been prepared, “if you are minded to add any subtle labour or fancy to your work, you are easily able to do it”. This last suggestion, however, does not diminish the value of the disclosure to those who are not minded to add “any subtle labour or fancy”. Finally, plaintiff argues that Cellini’s publication is not part of the relevant prior art because it pertains to the non-analogous sculptural art. Consideration of this point is deferred since it is also addressed to some other prior art citations. Haseltine’s invention has as its object the production of a metal casting which is a perfect copy of its model. He teaches the making of a thin rubber mould about the model, into which mould, when freed from the model, he pours melted wax. To help the thin rubber retain its shape, he suggests its suspension in water. The wax model is invested with clay, after which the wax is melted out of the clay mould. He suggests that ordinary pouring of the metal into the clay mould will not give clear definition of lines and therefore recommends that the metal be poured through a pipe from a sufficient height so as to produce the required pressure. Illustratively he speaks of a statuette and in his drawing he shows a vase. Spencer’s patent is for a flexible mould for intricate designs. Neither with respect to wax nor metal does he teach the use of force or pressure for the injection into the mould. It should be noted that of these references only Haseltine and Spencer were before the Patent Office. Kralund is concerned with commercial castings, especially but not exclusively, of large bulk. He teaches the use of the “cire perdue” process with the addition of pressure derived from a die casting apparatus for the introduction of the wax into the die and for the introduction of the metal into the final mould. His primary mould is of metal machined to its desired shape. Plaintiff distinguishes Kralund: the disclosure is in the field of commercial casting; Kralund’s purpose was to preserve expensive steel dies by using them to cast wax patterns instead of stamping the finished metal product; if the jeweler had Kralund’s dies he would stamp his rings, not cast them. While it is unquestionably true that Kralund was directing his efforts toward the more exacting requirements of precision tool casting, it does not follow that his disclosures can be dismissed as inapplicable. Clearly both plaintiff and defendant agree that by 1933 metal and rubber primary moulds were interchangeable and equivalent. La Gravure adds little to the “cire perdue” process, except that it is explicitly applied to small pieces of jewelry. It does not teach the use of pressure in the wax casting stage but does suggest the use of steam pressure in the metal casting stage. The Slatis-Dee method is identical with Jungersen’s. However, defendants agree that it did not anticipate because it was secret. See, however, Dow Chemical Co. v. Halliburton Oil Well Cementing Co., 1945, 324 U.S. 320, 326, 65 S.Ct. 647, 89 L.Ed. 973. But defendants do rely upon a ring made by Slatis in 1931 and worn for some time by Radix, president of the Dee Company, as anticipating Claim 6. A customer of the Dee Company testified that he bought one cast ring which was not satisfactory. I am not inclined to give much weight to the Slatis-Dee use either as anticipation of the process or as anticipation of the product. The Barbed Wire Patent, 1892, 143 U.S. 275, 284, 12 S.Ct. 450, 36 L.Ed. 161. Austenal: Great reliance is laid by defendants on the Austenal prior use. During 1932-1933, the Austenal Laboratories in Chicago developed a method of reproducing “Steele’s Backings” for the dental trade. A Steele’s backing is a small undercut metal rail which fits into a channel of an artificial tooth and is used to secure the tooth to the dental plate. The process employed was identical with Jungersen’s except for the use of an eye-dropper to squirt the wax into the rubber mould in place of a centrifugal machine. For casting the metal Austenal employed a centrifugal machine or air pressure. I read the testimony on the Austenal use to show the employment of an eye-dropper or syringe for the introdution of the wax but (though a syringe is capable of generating force) not for the purpose of applying force, and without the effect of pressure. The process met with only moderate success, was used for about a year and then superseded by a superior process. Especially instructive is Jungersen’s own testimony concerning his invention because it throws light on what he regarded as available art when he first undertook to make a casting of a ring. He testified that he had been a consulting engineer and manufacturer of gasoline and diesel engines and pumps. While sojourning in Canada, in 1933, he made a wager with a friend that he could take any job his friend would select out of the newspaper advertisements. He applied for employment with a jeweler who was looking for a caster in sand and offered to reproduce any model the jeweler assigned to him. He received a model of a ring. On his way home he bought some patching rubber at a gasoline station. At home he prepared a wooden frame in which he vulcanized a rubber mould about the model. “I had quite a little trouble with filling the mould with wax. I knew that the dentists were using wax patterns * * •* and finally I fell on the idea of filling by centrifugal force * * . I made a swing out of a wired clothes-hanger that I could swing around in my hand * * and after that * * * I went to a mechanical dentist” where he made his final casting by means of a centrifugal machine. Only later did he hear that he had done something unusual. In his British application, filed September 1934, for “improvements in methods and means of casting metals” plaintiff stated, “In the casting of metal it is not broadly new to make an elastic mould from an original sample or model, to produce a wax or fusible pattern with the aid of the elastic mould and to remove the pattern from the latter and invest it in a final mould from which the wax or fusible pattern is subsequently melted out to permit the pouring of the metal into the mould cavity thus vacated.” Thus we have in substance the prior art available to Jungersen when he devised his process. The question is whether his teaching amounts to invention. Before evaluating the advance made by him, note should be taken of three district court adjudications of the very patent in issue. The first is Jungersen v. Jenkins, D.C.Md.1939, 30 F.Supp. 615, 617. The case was “really undefended”. The court emphasized the use of centrifugal force for the injection of both the wax and the metal, the view that the prior patents related to “non-analagous arts such as the sculptors’ art and the dental and foundry arts”, and commercial success. The court found all claims of the patent valid. The second is Jungersen v. Morris Kaysen Co., D.C.E.D.Pa.1940, 31 F.Supp. 703. The court found all claims valid. It emphasized the novelty of the use of centrifugal or similar force for the introduction of the wax into the primary mould and the commercial success of the process. It relied on Bristol v. Otis Elevator Co., 3 Cir. 1931, 52 F.2d 772, 773, which held, “To anticipate a combination, the combination in its entirety must be old.” The last of the cases is Ostby & Barton Co. v. Jungersen, D.C.N.J.1946, 65 F.Supp. 652, 656. Plaintiff sought a declaratory judgment of invalidity and non-infringement. The court found that the patent described a combination of old elements to which a new one had been added, to wit, the use of centrifugal force for the injection of the wax into the primary mould. Relying upon Textile Machine Works v. Louis Hirsch Textile Machines, Inc., 1938, 302 U.S. 490, 497, 58 S.Ct. 291, 82 L.Ed. 382, it held that in order to validate the patent the addition must be the result of invention rather than the mere exercise of the skill of the calling. It found such invention. The prior knowledge, it said, was in the field of “non-analagous casting arts. The end results required in those arts were dissimilar to those in the jewelry art”. It held that, if there were any doubt, it was dissipated by the commercial success of the process. The court found claims 1 to 4 valid. However, it found claims 5 and 6 invalid and cited the Kralund patent as an anticipation, although Kralund addressed himself to commercial castings. Claims 5 and 6 do not specify the use of centrifugal force. Claim 5 speaks only of introducing the wax into a primary mould by “force sufficient to deposit the material” and not injure the primary mould. Kralund, too, had taught making the wax pattern by “forcing molten material having a low fusing point into a metal mould or die under sufficient pressure to insure the filling of said mold or die”. The novel feature of the Jungersen process relates to the casting of the primary pattern in wax or other fusible material. He injects the wax into the primary mould by centrifugal force. Does that constitute invention? Clearly the use of force for casting the metal is old; Haseltine, La Gravure, and Kralund taught it. The need of force for casting the wax was taught by Kralund who used a die casting machine. Moreover, by his claim of in fringement plaintiff practically concedes the equivalence of the several modes for the application of force, namely, syringes, air pressure and centrifugal machines. The centrifugal casting machine was described in U. S. patent No. 1,457,040, issued to Mc-Manus in 1923, and was expressly stated to be suitable for the casting of jewelry such as rings “where molds may be used to be filled by centrifugal casting methods”. In brief, the lost wax process is very old. The use of force, including centrifugal force, in filling the final mould is old. If the general casting art is the critical art for the patent in issue, I would have no hesitation in holding that the substitution of centrifugal force for other means of casting the wax is not invention, but the application of an equivalent means. Once the use of force for the introduction of the wax into the mould was known to be desirable — and Kralund showed it — the choice of alternative means for the application of force became a non-inventive application of the skill of the caster’s art. To put it simply, in the casting art it was old knowledge that the forced introduction of molten material into a mould produced greater definition of line and contour and greater fidelity of reproduction. McManus’ patent showed the use of a centrifugal machine as the source of force for such purpose, which lent itself especially to small castings. Were it at that time desired to make faithful wax castings, as the final article of manufacture, it would not amount to invention to introduce the wax into the mould by centrifugal force. I fail to see why it rises to the level of invention when casting the wax pattern is an intermediate step in a longer process.
11577322-16871	OPINION DOMINGUEZ, District Judge. On November 6, 1998, co-defendant, El Fénix de Puerto Rico (“El Fénix”), filed a Motion for Summary Judgment alleging that the General Commercial Liability Policy issued to co-defendant Pan American Grain Mfg. Co. (“Pan American”), does not provide liability coverage for the personal injuries sustained by plaintiff. (Docket No. 97). Plaintiff, Joseph Nahan (“Na-han”) filed a brief in opposition to the Motion for Summary Judgment on January 4, 1999. (Docket No. 101). Co-defendants Pan American and the vessel IBT Zorra filed a brief in opposition on February 3, 1999 challenging El Fénix’ Motion for Summary Judgment. (Docket No. 104). The Court is now ready to rule on the matter. For the reasons that follow, this Court DENIES El Fénix’ Motion for Summary Judgment. FACTUAL BACKGROUND Nahan is an American Merchant seaman from Seattle, Washington. He was hired on August 20, 1993 by co-defendant Pan American as a Second mate, to work aboard their vessel, the IBT Zorra in Portland, Oregon. (Docket Nos. 1, 36). On October 2, 1993, plaintiff signed a contract with Pan American stating that plaintiff was to sail from Sacramento, California to San Juan, Puerto Rico, and “any other ports as designated by the owner.” (Docket No. 1). On October 27, 1993, during his scope of employment with Pan American, Nahan suffered an accident causing serious bodily injury. (Docket Nos. 36, 74). Plaintiff suffered injuries while installing a ladder being rigged from the IBT Zorra to Pan American’s rice pier in San Juan, five days after the vessel was moored. Plaintiff suffered injuries to his right arm, left leg and other portions of his body. (Docket No. 91). Subsequent to the accident, Nahan was hospitalized in Hospital Industrial until December 18, 1993, when he refused medical treatment once he realized he was being treated under the Puerto Rican Work men’s Accident Compensation Act (“PRWACA”). (Docket Nos. 1, 36). Pan American insured its workers under the PRWACA with the Puerto Rico State Insurance Fund, as required by law by the Commonwealth of Puerto Rico. (Docket Nos. 1, 36, 101, 104). Nahan was covered under the PRWACA during the scope of his employment with Pan American. (Docket No. 71). Nahan filed this case on January 1,1994 against defendants Pan American, and its insurer El Fénix, as well as an in rem cause of action against the vessel ITB Zorra pursuant to the General Maritime Laws of the United States and Jones Act, 48 U.S.C.App. § 688. Plaintiff seeks to recover damages for personal injuries he sustained on October 27, 1993, in San Juan, Puerto Rico, due to co-defendant Pan American’s negligence and unseaworthiness of its vessel, the IBT Zorra. According to the prior opinion issued by the court in the instant case regarding defendant’s motion for summary judgment, as a consequence of the injury occurring in Puerto Rican territorial waters, the issue in this case turned on whether defendant can be held liable, in the case that: “... plaintiff is exempt from coverage under the Maritime Laws of the U.S. and the Jones Act, 48 U.S.C.App. § 688 because of potential coverage under the PRWACA under the doctrine of Fonseca v. Prann, 282 F.2d 153 (1st Cir.1960), and subsequent judicial interpretations.” (Docket No. 74). Pan American did not obtain any separate personal injury policy to cover any seaman injured on the vessel IBT Zorra. (Docket Nos. 74, 101, 104). Plaintiff sued El Fénix, Pan American’s insurance carrier, alleging that the policy issued by El Fénix to Pan American provides coverage for plaintiffs injuries, pursuant to 46 U.S.C.App. § 688 (“Jones Act”) and the general principles of maritime law. (Docket No. 101). On November 6, 1998, co-defendant, El Fénix filed a Motion for Summary Judgment alleging that the General Commercial Liability Policy issued to Pan American does not provide coverage for the injuries sustained by plaintiff. (Docket No. 97). On January 4, 1999, plaintiff filed a brief in opposition to the Motion for Summary Judgment arguing that although El Fénix points to exclusions under the policy, which may deny coverage to plaintiff, El Fénix, however, does not address nor recognize exceptions to the exclusion, which override the exclusion and consequently grant coverage to plaintiffs injuries. (Docket No. 101). Subsequently, on February 3, 1999 co-defendants Pan American and the vessel IBT Zorra filed a brief in opposition challenging El Fénix’ Motion for Summary Judgment claiming among other arguments that the policy exclusions relied on by El Fénix in its Motion for Summary Judgment are inapplicable to the case at bar. (Docket No. 104). SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). “Where defendant has invoked Rule 56 and asserted a lack of supporting evidence, the plaintiff must establish the existence of a triable issue which is both genuine and material to his claim.” Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “In this context, ‘genuine’ means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party [and] ‘material’ means that the fact is one that might affect the outcome of the suit under the governing law.” United States v. One Parcel of Real Property with Buildings, Appurtenances, and Improvements, Known as Plat 20, Lot 17, 960 F.2d 200, 204 (1st Cir.1992). The nonmovant must “present definite, competent evidence to rebut the motion.” Mesnick v. General Electric Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). Thus, “[s]ummary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation,” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). Furthermore, although “[n]o credibility assessment may be resolved in favor of the party seeking summary judgment,” Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir.1995), a court must be aware that “[o]n issues where the nonmovant bears the ultimate burden of proof at trial, he may not defeat a motion for summary judgment by relying on evidence that is ‘merely colorable’ or ‘not significantly probative.’ ” Pagano v. Frank, 983 F.2d at 347 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505). Hence, applying these criteria, the Court is to consider that “not every genuine factual conflict necessitates a trial. It is only when a disputed fact has the potential to change the outcome of the suit under governing law, if found favorably to the nonmovant, that the materiality hurdle is cleared.” See Wilfredo Martinez v. Rafael Colon, 54 F.3d 980 (1st Cir.1995) (citing United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992)). Consistent with the Summary Judgment standard, “we canvas the material facts in a light that flatters, but does not imper-missibly distort,” the nonmoving party’s claims, and indulge all reasonable inferences in favor of that party. See Wilfredo Martinez, 54 F.3d at 982; Libertad v. Welch, 53 F.3d 428 (1st Cir.1995). DISCUSSION I. The Policy’s Exclusions and Exceptions The Commercial General Liability Policy issued by El Fénix to Pan American, defines tort liability and commits to provide coverage under Section V, clause number 6, section (f). Clause number six, section (f) provides that: “6. “Insured contract” means: (f). [t]hat part of any other contract or agreement pertaining to your business ... under which you assume the tort liability of another party to pay “bodily injury” or “property damage” to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.” (Docket No. 101, Exhibit A). El Fénix alleges that exclusions to the Commercial General Liability Policy bar plaintiff from coverage, particularly exclusion (g). Said exclusion states that insurance does not apply to “(g). ‘[b]odily injury’ or ‘property damage’ arising out of the ownership, maintenance, use of ... watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading.” ” (Docket No. 101). Hence, because plaintiffs sustained injuries doing work pertaining to the maintenance and use of the IBT Zorra, a vessel owned and operated by the insured Pan American, the watercraft liability exclusion precludes coverage for the injuries. In order to interpret the contract’s exclusionary language, the court must refer to local law. United States Fire Insurance Co. v. Producciones Padosa, Inc., 835 F.2d 950 (1st Cir.1987). Under Puerto Rican law, when the Insurance Code fails to address an insurance related issue, the Civil Code applies as a supplemental source of law. See id.; Casanova Diaz v. Puerto Rican Insurance Co., 1978 WL 48889, 106 D.P.R. 689 (1978), 6 Official Translations 960 (1982); Sandoval v. Puerto Rico Life Ins. Co., 1970, 99 P.R.R. 281. According to P.R. LAWS ANN., tit. 31, § 3471 (1990): “[i]f the terms of a contract are clear and leave no doubt as to the intentions of the contracting parties, the literal sense of its stipulations should be observed.” Notwithstanding, Puerto Rican law clarifies that insurance contracts are contracts of adhesion, and consequently, they are liberally construed in favor of the insured. Rosario v. Atlantic Southern Ins. Co. of P.R., 1968, 95 P.R.R. 742. Further, any doubts regarding the incontestability clauses or disability benefits exclusions in insurance policies must be resolved in favor of the insured. Rodriguez v. John Hancock Mut. Life, 110 D.P.R. 1 (1980), 10 Official Translations 1 (1981). However, the plaintiff must allege facts which show that damages are covered within the policy coverage. Vega v. Pepsi-Cola Bot. Co., 118 D.P.R. 661 (1987), 18 Official Translations 763 (1993). Pan American accepts that exclusion clause (g), clearly denies coverage to plaintiffs injuries. (Docket No. 104). However, Pan American claims that the exemption is followed by an exception, which negates under the applicable facts of the case the effect of the exclusion. (Docket No. 104). The exception to exclusion (g) clearly states that: “the exclusion does not apply to: 1) A ivatercraft while ashore on premises you own or rent. 2) A watercraft you do not own that is: (a) less than 28 feet long; and (b) Not being used to carry persons or property for a charge.” (Docket No. 101, Exhibit A) (emphasis added). In order to determiné the merits of Pan American’s allegation, the court must apply the facts and construe the terms of the insurance contract. In Puerto Rico, it is a well established legal doctrine that in construing the terms of a contract, (including an insurance policy contract) the language used must be interpreted according to its common and general usage. See Morales Garay v. Roldan Coss, 1981 WL 176529, 110 P.R.Dec. 701 (1981); Pagan Caraballo v. Silva, 1988 WL 580770, 122 P.R.Dec. 105 (1988); Garcia Curbelo v. A.F.F., 91 JTS 6 (P.R.1991); Marín v. American Int’l Ins. Co., 94 JTS 132 (P.R.1994). Moreover, such treatment is also given to the exclusions contained within an insurance policy. In re Reinforced Earth, Co., 925 F.Supp. 913 (D.P.R.1996). See Marin v. American Int’l Ins., 94 JTS 132 (P.R.1994). Each exclusion has to be clear and unambiguous and must be functionary interpreted within the policy. Id.; see also United States Fire Ins. Co. v. Producciones Padosa, Inc., 835 F.2d 950, 957 (1st Cir.1987) (citing Liberty Mut. Ins. Co. v. Gibbs, 773 F.2d 15, 17 (1st Cir.1985)). If “[a]n exclusion clause is clear and unambiguous and applicable, then it does not afford coverage despite whatever inferences may arise from the other clauses in the contract. Each exclusion clause should read independently from the others and according to its functions in the policy’s general agreement. Such construction shall be se-riatim, not accumulative.” Meléndez Pinero v. Levitt & Sons, 91 JTS 95 (P.R.1991). After reviewing the policy contract, the court finds that the contract clauses are clear and unambiguous in their wording and meaning, as to the issue of coverage pertaining to watercraft liability. However, the exclusions are accompanied by a series of exceptions that in this case invalidate exclusion (g)’s puissance. Moreover, the exceptions are uncluttered, not complicated, or hard to understand. See de Rivera v. Southland Life Ins. Co., 105 D.P.R. 273 (1976), 5 Official Translations 373 (1982). The Court finds that the exceptions to the exclusions included in the policy, are clear and comprehensible to the average person, and consequently, also clear to sophisticated parties as in the instant case. See id.; RCI Northeast Services Div. v. Boston Edison Co., 822 F.2d 199, 205 (1st Cir.1987). Because the insured bears the burden of establishing coverage under an insurance policy, and because an exception to an exclusion creates coverage where it would otherwise not exist, “the insured must also prove that the exception affords coverage after an exclusion is triggered.” See St. Paul Fire & Marine Ins. Co. v. Warwick Dyeing Corp., 26 F.3d 1195, 1200 (1st Cir.1994). In this case Pan American has proved that the exception to the exclusion is applicable, invalidating the exclusion of liability in the contract. See Aeroquip Corp. v. Aetna Cas. And Sur. Co., Inc., 26 F.3d 893, 895 (9th Cir.1994). The uncontested facts presented by both opposing parties indicate that the IBT Zorra and the pier where the vessel was docked, both belonged to Pan American. (Docket Nos. 74, 104, 107). In addition, the IBT Zorra was ashore and moored in Pan American’s pier for five days, before plaintiff sustained his injuries. (Docket Nos. 74, 104, 107). The watercraft, IBT Zorra, was therefore, “ashore on premises ... [owned or rented].” (Docket No. 101, Exhibit A). Because the exception to the exclusion is clearly applicable to watercraft ashore and located on premises owned by Pan American, the Court concludes that the exclusion of coverage applicable to watercraft liability is invalidated pursuant to the clear terms of the contract. The summary judgment standard is particularly applicable, because “the facts upon which liability is claimed or denied under an insurance policy are undisputed and the existence or amount of liability depends solely upon a construction of the policy, the question presented is one of law.” The Alan Corp. and East Side Oil Co. v. International Surplus Lines Ins. Co., 22 F.3d 339 (1st Cir.1994); (citing Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 134 (1st Cir.1984)). Further, when an insurance policy provides coverage based on an exclusion, the insurer has a duty to defend the insured in court proceedings. Reyes Lopez v. Misener Marine Constr., Inc., 664 F.Supp. 652, 657 (D.P.R.1987). See also Hydro Sys. Inc. v. Continental Ins. Co., 717 F.Supp. 700, 703 (D.C.Cal.1989), aff'd, 929 F.2d 472 (9th Cir.1991) (“where there is no potential of liability under a policy exclusion, there is no duty to defend.”). In view of the above, there being no material facts as to this issue, and because the question presented relates to the resolution of an insurance contract controversy, which lies “within the province of the court and not the jury,” the Court is firmly convinced that there is coverage, based on a construction of the policy contract, as a matter of law. In re San Juan Dupont Plaza Hotel Fire Litig., 802 F.Supp. 624, 637 (D.P.R.1992). II. The Jones Act and General Principles of Maritime Law Plaintiffs opposition to El Fénix’ Motion for Summary Judgment contends that the IBT Zorra’s shipping articles signed in Sacramento, California, do not create a relationship between Nahan and Pan American, but one between Nahan and the IBT Zorra’s master. As such, plaintiff asserts that section (f) of the policy, as quoted previously, extends policy protection to accidents related to the IBT Zorra in its in rem capacity, pursuant to the principles of general maritime law. In addition, plaintiff asserts that the definition of “tort liability” found in section (f) clearly covers the sustained injuries, “since the Jones Act is liability imposed by law pursuant to 46 U.S.C.App. § 688, such tort liability being required by the terms of the policy as are those additional actions brought under general maritime law which charge the vessel with unseaworthiness.” (Docket No. 101). The court agrees.
3315232-16475	ORDER DAUGHERTY, Chief Judge. Upon consideration of the two defense Motions To Dismiss filed herein and after having studied all briefs submitted in connection therewith and having heard oral arguments on the Motions, the Court finds that said Motions should be overruled. An examination of Plaintiff’s •Complaint reveals that the same states a claim upon which relief may be granted Plaintiff. Rule 12(b)(6), Federal Rules of Civil Procedure. The thrust of Plaintiff’s Complaint is that in an area preempted by the Federal Government the Executive Branch of the Federal Government acting through the Secretary of the Interior has determined the members of the Pawnee Business Council and its President yvhich determinations must be accorded full faith and credit and be accepted by the Court as final and not justiciable, and that certain Defendants acting or purporting to act contrary thereto be enjoined from so conducting themselves in certain respects. It ap pears that upon proving such allegations Plaintiff may be entitled to the relief sought. As Plaintiff is the United States of America this Court has jurisdiction of an action brought by it pursuant to 28 U.S.C. § 1345. And it appears that the United States of America is a proper party to have the aforesaid final determinations of the Secretary of the Interior accorded full faith and credit and be judicially accepted as such and those acting contrary thereto enjoined from so conducting themselves. Movants’ assertion that an Oklahoma State Court has made a judicial determination as to who are the members of the Pawnee Business Council and who is its President is most likely to be lacking in legal effect as to Plaintiff’s Complaint. This is because such State judicial determination appears to be void for lack of jurisdiction in this regard. State v. Bertrand, 61 Wash.2d 333, 378 P.2d 427 (1963). The case of Martinez v. Southern Ute Tribe, 150 Colo. 504, 374 P.2d 691 (1962) relied on by Movants is distinguished as the controversy in said case was treated as being in tort or accounting for damages and did not hold that state courts have jurisdiction over internal Indian affairs. Those Federal cases relied on by Movants as holding that Federal Courts do not have jurisdiction to settle internal Indian tribal disputes are likewise not in point in this case as Plaintiff does not request this Court to settle the Pawnee Indian dispute as to who is the President of the Pawnee Business Council or who are its members. Rather, Plaintiff requests this Court to accept the determinations of the Secretary of the Interior in this regard as final and enjoin those acting contrary to such determinations. Movants have acknowledged in open Court that their complaint that the Pawnee Indian Tribe of Oklahoma, a corporation, is not a party Defendant is moot as it has now been made a Party Defendant and that their Complaint that the Pawnee Business Council and the Nasharo Council of the Pawnee Indian Tribe of Oklahoma are improper parties to the case for various reasons is withdrawn from consideration of the Court. Said Motions under consideration are therefore overruled. Plaintiff is granted five (5) days to file an Amended Complaint or Amendment To Complaint if it desires. All Defendants will answer within twenty (20) days thereafter. MEMORANDUM OPINION In this case brought by the United States of America against the above-named Defendants relief is requested in the form of an Order of the Court enforcing certain decisions or determinations made by the Secretary of the Interior regarding the Pawnee Business Council of the Pawnee Indian Tribe of Oklahoma (Business Council), the Nasharo Council of the_Pawnee Indian Tribe of Oklahoma (Nasharo Council), the Pawnee Indian Tribe of Oklahoma, a Corporation, and the other-named Defendants in connection with their relationship with the Pawnee Indian Tribe. The thrust of Plaintiff's Complaint is that in an area preempted by the Federal Government the Executive Branch of the Federal Government acting through the Secretary of the Interior has determined, inter alia, the members of the Business Council and its President, the role of the Nasharo Council and that the May 5, 1973 election was invalid, which determinations must be accorded full faith and credit and be accepted by the Court as final and not justiciable and that certain Defendants acting or purporting to act contrary thereto be enjoined from so conducting themselves in certain respects. This Court has jurisdiction of this action brought by the United States of America. 28 U.S.C. § 1345. The United States of America is a proper party to have the aforesaid final determinations of the Secretary of the Interior accorded full faith and credit and be judicially enforced as such and those acting contrary thereto enjoined from so conducting themselves. The facts of this controversy are not in significant dispute and the parties have been able to present the case to the Court by exhibits and stipulations as to what the testimony of certain witnesses would be. The request by cross-claim of certain of the Defendants for an accounting of tribal funds by certain other Defendants was withdrawn from the case and consideration by the Court by those seeking same. It appears that in May, 1971 a Business Council was elected. Defendant Chapman became President in 1972. The Business Council subsequently removed him from the Presidency. A new President was elected in the person of Austin Realrider. By the procedure set out in Part 2, Title 25 of the Code of Federal Regulations, as authorized by 25 U.S.C. §§ 2 and 9, regarding “Appeals from Administrative Actions” (actions or decisions by officials of the Bureau of Indian Affairs) Chapman appealed to the Superintendent of the Pawnee Agency who determined the removal action to be invalid. Opposing Defendants then appealed to the Area Director who declined to intervene on the ground that the matter was an internal tribal affair which decision had the effect of negating the earlier determination of the Superintendent. Chapman then appealed directly to the Secretary of the Interior. The Commissioner of Indian Affairs recognized this request and forwarded the appeal to the Secretary of the Interior with the recommendation that he entertain the same without any action by the Commissioner. On August 3, 1972 the Secretary of the Interior made his determinations which were briefly that Chapman had been validly removed as President in a reorganization of the Business Council, that Austin Realrider was the elected President of the Business Council, the membership of the Business Council was stated and the role of the Nasharo Council was defined as having no voting power in the conduct of regular business nor in the election of officers of the Business Council, all such determinations being made under and pursuant to the Constitution and By-Laws of the Pawnee Indians of Oklahoma. Supplemental to these determinations and on April 20, 1973 the Secretary of the Interior determined that an election proposed (and later conducted) by the Chapman faction on May 5, 1973 would be illegal as the same would not be conducted in accordance with rules and regulations established and promulgated by the duly constituted Business Council as determined by the decision of August 3, 1972. Plaintiff thus seeks to enforce these decisions or determinations of the Secretary of the Interior which determined the membership and President of the Business Council (and its present incumbency inasmuch as the May 5, 1973 election was determined to have been improperly conducted) the role of the -Nasharo Council and that the May 5, 1973 election was invalid. Plaintiff’s requested relief herein is opposed by certain Defendants, (the Chapman group) on the grounds that the State District Court in and for Pawnee County, Oklahoma, in a land controversy before it has heretofore determined the Business Council membership and its President and did so in favor of the Chapman group and has enjoined Realrider and certain of his group, both individually and jointly, from committing any acts purportedly on behalf of the Pawnee Indian Tribe except that certain of them were entitled to participate as members of the Business Council at officially called meetings. These Defendants also deny that this Court has jurisdiction to entertain the request of the Plaintiffs; deny that the Secretary of the Interior has jurisdiction over the Defendants; assert that the issues are moot by reason of the May 5, 1973 election and that the administrative decisions or determinations of the Secretary of the Interior were improper for lack of due process, because the same are arbitrary and capricious, because no adversary hearings were held or record kept, because matters occurring after the first appeal were considered by the Secretary, because certain erroneous findings were entered by the Secretary, because of a failure of the Secretary to have before him all the necessary facts, that the determination of the Secretary of the Interior on the May 5, 1973 election was not validly accomplished and because Plaintiff is estopped to question the May 5, 1973 election for failure to take action before the election was conducted. The Court recognizes the legion cases from this Circuit and elsewhere that the Federal Courts are without jurisdiction to entertain and decide internal Indian tribal affairs, matters or disputes; that Congress had exclusive plenary legislative authority over such affairs and has designated and empowered the Secretary of the Interior in this regard. Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 (1832); Martinez v. Southern Ute Tribe of Southern Ute Res., 249 F.2d 915 (Tenth Cir. 1957). The Court must further recognize that this prohibition of judicial action must also apply to State Courts as well as Federal Courts. This being so, the Court finds and declares that, as the membership of the Business Council and who is its President are internal tribal affairs, the judicial determinations in these respects and any injunctive order in support thereof by the District Court of Pawnee County, Oklahoma as aforesaid are void for lack of jurisdiction. The Court further finds that the administrative appeal prescribed by Part 2 of Title 25, Code of Federal Regulations, and as applied to this controversy, was not lacking in due process and the appellate procedures were substantially followed without prejudice to Chapman and his group. It is noted that Chapman himself initiated the appellate procedure and then took the filial appellate step to the Secretary of the Interior. He was afforded an ample opportunity (and did exercise the same) to present a statement of his reasons for the appeals and any arguments he wished to make in support of his reasons and position. Further, the Court finds that the Secretary of the Interior was acting within his jurisdiction and within the scope of review prescribed by Section 2.37 of the Appeals Regulations and that his determinations are not arbitrary and capricious. Also the issues are not moot as the Secretary of the Interior has determined the May 5, 1973 election to be invalid and is not recognized. Furthermore, the evidence before the Court does not support the claimed estoppel against the Plaintiff. The Chapman group was not misled by Plaintiff about the May 5,1973 election. To the contrary, they were told in advance thereof by Plaintiff that the election was illegally called. No erroneous findings by the Secretary of the Interior of any significance are found to be present. An adversary hearing is not prescribed, the Secretary appears to have had all necessary facts before him and he was entitled to consider any information available to him whether a part of the record of not. The Court therefore finds and concludes that the determinations of the Secretary of the Interior involved herein should be enforced by the Court and those acting contrary thereto should be enjoined from such conduct. Counsel for Plaintiff will prepare an appropriate Judgment based on the foregoing and after circulation present the same to the Court for signature and entry herein. . The area claimed to have been pre-empted by the Federal Government is the matter of the internal affairs of Indian tribes. Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 (1832); Martinez v. Southern Ute Tribe Of Southern Ute Res., 249 F.2d 915 (Tenth Cir. 1957) which provides: “ . . . The doctrine that Indian affairs are subject to control of the federal, rather than state government, arises from the constitutional powers of Congress to make treaties, to regulate commerce with the Indian tribes, to admit new states, and to administer the property of the United States and legislation enacted in pursuance of these powers. The states of Arizona, Montana, New Mexico, North Dakota, Oklahoma, South Dakota, Utah and Washington were admitted to the union under enabling acts expressly disclaiming jurisdiction over Indian affairs and this provision was consequently written into their constitutions.” . This is claimed to have been accomplished through administrative appellate procedures prescribed by Part 2, Title 25 of the Code of Federal Register. Exhibit “A” to the Complaint is alleged to contain these final determinations of the Secretary of the Interior. . 25 U.S.C. § 2; Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903); State v. Gowdy, 1 Or.App. 424, 462 P.2d 461 (1969). . Plaintiff requests that one Defendant be enjoined from acting as President of the Pawnee Business Council contrary to the determination of the Secretary of the Interior, that two Defendants be enjoined as members of said Council contrary to the determination of the Secretary of the Interior, and certain other Defendants be enjoined from signing cheeks on tribal funds and obligating tribal funds for legal fees as they lack authority to so act and that certain Defendants be enjoined from litigating or further litigating internal tribal disputes in the State Courts of Oklahoma which disputes have been finally and conclusively determined by the Secretary of the Interior. . Typical are Martinez v. Southern Ute Tribe of Southern Ute Res., supra; Motah v. United States, 402 F.2d 1 (Tenth Cir. 1968); Prairie Band of Pottawatomie Tribe Of Indians v. Udall, 355 F.2d 364 (Tenth Cir. 1966). . The area claimed to have been pre-empted by the Federal Government is the matter of the internal affairs of Indian tribes. Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 (1832) ; Martinez v. Southern Ute Tribe of Southern Ute Res., 249 F. 2d 915 (Tenth Cir. 1957) which provides: “ . . . . The doctrine that Indian affairs are subject to control of the fed eral, rather than state government, arises from the constitutional powers of Congress to make treaties, to regulate commerce with the Indian tribes, to admit new states, and to administer the property of tire United States and legislation enacted in pursuance of these powers. The states of Arizona, Montana, New Mexico, North Dakota, Oklahoma, Soutli Dakota, Utah and Washington were admitted to the union under enabling acts expressly disclaiming jurisdiction over Indian affairs and this provision was consequently written into their constitution.” . Those determinations are claimed to have been accomplished through administrative appellate procedures prescribed by Part 2, Title 25 of the Code of Federal Register. Exhibit “A” to the Complaint is alleged to contain these final determinations of the Secretary of the Interior except the last was made by a letter dated April 20, 1973. . 25 U.S.C. § 2; Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903); State v. Gowdy, 1 Or.App. 424, 462 P.2d 461 (1969). . Plaintiff requests that one Defendant be enjoined from acting ns President of the Pawnee Business Council contrary to the determination of the Secretary of the Interior, that two Defendants be enjoined from acting as members of said Council contrary to the determinations of the Secretary of the Interior, and certain other Defendants be enjoined from signing checks on tribal funds and obligating tribal funds for legal fees as they lack authority to so act. . By the Constitution anti By-Laws of the Pawnee Indians of Oklahoma the Nasharo Council has the right to review matters of tribal membership and rights growing out of treaties.
11536023-15729	BRUNETTI, Circuit Judge: I. FACTS AND PROCEEDINGS BELOW The facts of this case are not in dispute. The Internal Revenue Service (“IRS”) reassessed the Jacksons’ federal income tax liabilities for the 1982, 1983, and 1989 tax years, but the Jacksons did not notify the California Franchise Tax Board (“Board”) of the federal reassessments as they were required to do under California law. The Jacksons filed for bankruptcy in 1996 and the Board filed a proof of claim for unpaid state income taxes for the ’82,-’83, and ’89 tax years based upon the IRS reassessments. The Jacksons objected to the Board’s claim and the bankruptcy court sustained the Jacksons’ objection disallowing the Board’s claim for state income taxes. The United States District Court for the Central District of California affirmed the bankruptcy court’s order concluding that the Jacksons’ California tax liabilities were discharged despite the fact that the Jacksons failed to report the IRS reassessments to the Board. The district court reasoned that the failure to report a tax reassessment did not constitute a failure to file a tax return and, therefore, the Jacksons’ California tax liabilities were not excepted from the bankruptcy code’s discharge provisions. The Board appeals from the district court’s judgment. We have jurisdiction under 28 U.S.C. § 158(d) and affirm. II. DISCUSSION A. ELEVENTH AMENDMENT SOVEREIGN IMMUNITY Neither party has discussed or raised the Eleventh Amendment sovereign immunity issue this case presents, but we must resolve that issue before we reach the merits of this case. See Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Charley’s Taxi Radio Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 873 n. 2 (9th Cir.1987). Eleventh Amendment sovereign immunity limits the jurisdiction of the federal courts and can be raised by a party at any time during judicial proceedings or by the court sua sponte. See Edelman, 415 U.S. at 677-78, 94 S.Ct. 1347; Charley’s Taxi Radio Dispatch Corp., 810 F.2d at 873 n. 2. Unlike other jurisdictional limitations, Congress can abrogate Eleventh Amendment sovereign immunity through the Fourteenth Amendment and states can waive their Eleventh Amendment sovereign immunity and consent to federal jurisdiction. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); BV Engineering v. University of California, Los Angeles, 858 F.2d 1394, 1395-96 (9th Cir.1988). The Eleventh Amendment 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. U.S. Const, amend. XI. Despite its narrow language, the Eleventh Amendment bars suits in federal court against a state and its agencies brought by its own citizens and citizens of other states. Edelman, 415 U.S. at 662-63, 94 S.Ct. 1347; Hans v. Louisiana, 134 U.S. 1, 9-21, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995). The State of California has not made a general waiver of its Eleventh Amendment sovereign immunity, see Atas-cadero State Hospital, 473 U.S. at 241, 105 S.Ct. 3142, and will only be deemed to have done so in this case if it has unequivocally expressed its consent to federal jurisdiction. Actmedia, Inc. v. Stroh, 830 F.2d 957, 963 (9th Cir.1986). The Board waived its Eleventh Amendment sovereign immunity in this case when it filed a proof of claim for unpaid state income taxes. Section 106(b) of the Bankruptcy Code provides: A governmental unit that has filed a proof of claim in the case is deemed to have waived sovereign immunity with respect to a claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which the claim of such governmental unit arose. 11 U.S.C. § 106(b). Section 106(b) codifies the Supreme Court’s decision in Gardner v. New Jersey, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504 (1947), which held that a state waives its sovereign immunity when it files a proof of claim in a bankruptcy proceeding. Id. at 573-74, 329 U.S. 565. The Supreme Court stated: It is traditional bankruptcy law that he who invokes the aid of the bankruptcy court by offering a proof of claim and demanding its allowance must abide the consequences of that procedure.... When the State becomes the actor and files a claim against the fund, it waives any immunity which it otherwise might have had respecting the adjudication of the claim. Id. at 573-74, 67 S.Ct. 467. The Board waived its Eleventh Amendment sovereign immunity in regard to the bankruptcy court’s determination that the Jacksons’ tax liability debts were dischargeable because the Board filed a proof of claim in this case for unpaid state income taxes and the Jacksons only objected to the Board’s claim that their tax liability debts were non-dischargeable. Relying on the Supreme Court’s decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66-72, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (Congress cannot use its Article I powers to abrogate Eleventh Amendment sovereign immunity), the Fourth Circuit has held that § 106(b) amounts to an unconstitutional attempt by Congress to abrogate the sovereign immunity of the states. See In re Creative Goldsmiths, 119 F.3d 1140, 1147 (1997), cert. denied, — U.S.-, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998). The Fourth Circuit stated: While 11 U.S.C. § 106(b) may correctly describe those actions that, as a matter of constitutional law, constitute a state’s waiver of the Eleventh Amendment, it is nevertheless not within the Congress’ power to abrogate such immunity by “deeming” a waiver. Rather, in the absence of a constitutional authorization, it lies solely within a state’s sovereign power to waive its immunity voluntarily and to consent to federal jurisdiction. Only if it waives such immunity may a private citizen sue the state in federal court. Id. at 1147. Despite holding § 106(b) unconstitutional, the Fourth Circuit recognized, consistent with Gardner v. New Jersey, that, when a state files a proof of claim in a bankruptcy proceeding, the state waives its sovereign immunity in regard to the debtor’s claims which arise out of the same transaction or occurrence as the state’s proof of claim. Id. at 1148. In contrast to the Fourth Circuit’s decision in In re Creative Goldsmiths, the Tenth Circuit has held that § 106(b) is not affected by the Supreme Court’s decision in Seminole Tribe. See In re Straight, 143 F.3d 1387 (10th Cir.1998). The Tenth Circuit stated: [Section] 106(b) does not pretend to abrogate a state’s immunity, it merely codifies an existing equitable circumstance under which a state can choose to pre-' serve its immunity by not participating in a bankruptcy proceeding or to partially waive that immunity by filing a claim. The choice is left to the state. Thus, § 106(b) follows the lead already established by the Supreme Court in Gardner v. Neiv Jersey. Id. at 1392. We decline to address the issue of whether § 106(b) is constitutional because the Board’s conduct falls squarely under the Supreme Court’s decision in Gardner v. New Jersey. See Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th Cir.1996) (“It is ‘a fundamental rule of judicial restraint’ that federal courts ‘ought not pass on questions of constitutionality ... unless such adjudication is unavoidable.’ ”) (quoting Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985)). The Seventh and Eleventh Circuits recently .declined to address the constitutionality of § 106(b) and instead relied exclusively on Gardner v. New Jersey to conclude that a state waives its sovereign immunity when it files a proof of claim in a bankruptcy proceeding. See In re Burke, 146 F.3d 1313, 1317-20 (11th Cir.1998); In re Platter, 140 F.3d 676, 678-80 (7th Cir.1998). We follow the lead of the Seventh and Eleventh Circuits and conclude that, based upon the Supreme Court’s decision in Gardner v. New Jersey, the Board waived its sovereign immunity in this case when it filed a proof of claim for unpaid state income taxes against the Jacksons. The federal courts have jurisdiction to hear this case and we must determine whether the Jacksons’ tax liability debts are excepted from the Bankruptcy Code’s discharge provisions. B. DISCHARGEAlBILITY OF THE JACKSONS’ STATE INCOME TAX LIABILITY The bankruptcy court’s interpretation of the Bankruptcy Code is reviewed de novo, In re Federated Group, Inc., 107 F.3d 730, 732 (9th Cir.1997); In re Harrell, 73 F.3d 218, 219 (9th Cir.1996)(per curiam), and we review the district court’s decisions on an appeal from a bankruptcy court de novo applying the same standard of review applied by the district court. In re Wilbur, 126 F.3d 1218, 1219 (9th Cir. 1997); In re Claremont Acquisition Corp., 113 F.3d 1029, 1031 (9th Cir.1997). Section 523 of the Bankruptcy Code excepts from the Bankruptcy Code’s discharge provisions a tax liability debt if: (1) the tax underlying the tax liability debt required a return; and (2) the debtor failed to file the required return. See 11 U.S.C. § 523(a)(l)(B)(i). Former section 18451 of the California Revenue and Taxation Code required a taxpayer to report to the Board any reassessment made by the IRS if the reassessment affected the taxpayer’s tax liability and required a taxpayer to file an amended return with the Board if the taxpayer filed an amended return with the IRS. See Cal. Rev. & Tax. Code § 18451. The Board argues that the debtors’ failure to report IRS reassessments pursuant to § 18451 is the equivalent of a failure to file a return, and, therefore, the debtors’ state income tax liabilities are excepted from the Bankruptcy Code’s discharge provisions. The Jacksons argue that the filing of a report pursuant to § 18451 is not the equivalent of the filing of a return, and, therefore, their state tax liabilities are dischargeable under the Bankruptcy Code’s discharge provisions. The filing of a report under § 18451 is not the equivalent of the filing of a return and the Jack-sons’ tax liability debts are dischargeable. Statutory interpretation begins with the plain meaning of the statute’s language. In re Bonner Mall Partnership, 2 F.3d 899, 908 (9th Cir.1993). When the statutory language is clear and consistent with the statutory scheme at issue, the statute’s plain language is conclusive and this Court need not inquire beyond the plain language of the statute. United States v. Hunter, 101 F.3d 82, 84 (9th Cir.1996); In re Bonner Mall Partnership, 2 F.3d at 908. The Jacksons’ tax liability debts are not excepted from discharge pursuant to § 523(a)(l)(B)(i) because the plain language of § 523(a)(1)(B)© excepts tax debts from discharge only when a required return is not filed and the plain language of § 18451 did not require the Jacksons to file a return with the Board. The Board’s argument that the term “return” in § 523 includes a tax report that is required by § 18451 ignores the principle that “exceptions to dischargeability should be strictly construed in order to preserve the Bankruptcy Act’s purpose of giving debtors a fresh start.” Matter of Kasler, 611 F.2d 308, 310 (9th Cir.1979) (citing Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 59 L.Ed. 717 (1915)). A return is “a formal statement on a required legal form showing taxable income, allowable deductions and exemptions and the computation of the tax due.” Webster’s Ninth New Collegiate Dictionary 1008 (1985). A strict construction of the plain meaning of the term return mandates the conclusion that a report required by § 18451 does not constitute a return. Section 18451 only requires a taxpayer to report an IRS reassessment and does not require the taxpayer to follow the formalities of filing a full return. The Jacksons did fail to file reports that were required by § 18451, but they did not fail to file returns. Section 18451 itself even recognizes a difference between reports and returns. Section 18451 requires a report when the IRS makes a reassessment and the reassessment affects the taxpayer’s tax liability but requires an amended return when the taxpayer files an amended return with the IRS. Because § 18451 requires a report under some circumstances yet requires an amended return under different circumstances, § 18451 unequivocally distinguishes informal reports from formal returns. The Board relies on In re Blutter, 177 B.R. 209 (Bankr.S.D.N.Y.1995), to support its argument that the Jacksons’ failure to report an IRS reassessment pursuant to § 18451 renders their tax liability debts non-dischargeable. In Blutter, the bankruptcy court rejected the argument that a report was not a return and concluded that the debtor’s failure to report a tax reassessment rendered the debtor’s tax liability debt non-dischargeable. In re Blutter, 177 B.R. at 211-12. The court reasoned that “a debtor should not be rewarded with a discharge for failing to comply with his filing obligations....” Id. at 211. The reasoning in Blutter must be rejected because it ignores other provisions of the Bankruptcy Code that address violations of tax laws by debtors. The mere failure to comply with tax laws or filing obligations does not automatically render a tax liability debt non-dischargeable under the Bankruptcy Code. The Bankruptcy Code defines when a failure to comply with tax laws, besides a failure to file a return, renders a tax liability debt non-dischargeable. Section 523(a)(1)(C) excepts from discharge tax liability debts “with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax.” 11 U.S.C. § 523(a)(1)(C) (emphasis added). Section 523(a)(1)(B)© would render § 523(a)(1)(C) superfluous if § 523(a)(1)(B)® encompassed every tax law violation like the Jacksons’ failure to report the IRS reassessment. Section 523(a)(1)(B)® cannot be read so broadly as to render § 523(a)(1)(C) superfluous because all statutory provisions must be given meaning and effect. See Burrey v. Pacific Gas & Elec. Co., 159 F.3d 388, 394 (9th Cir.1998) (“In interpreting a statutory provision, we must avoid any construction that renders some of its language superfluous.”). A violation of a tax law that is not a failure to file a return must be a willful attempt to evade or defeat the tax at issue to render the underlying tax liability debt non-dis-chargeable. The Jacksons only failed to file a report and nothing in the record suggests that they willfully attempted to evade or defeat the underlying state income taxes. Their tax liability debts cannot be excepted from the Bankruptcy Code’s discharge provisions pursuant to § 523(a)(1)(B)®. The rationale and policy positions that underlie § 523(a)(1)(B)® further support the conclusion that the Jacksons’ tax liability debts are not excepted from discharge. “The policy behind this subsection is that a debtor should not be permitted to discharge a tax liability based upon a required tax return that was never filed.” 3 Norton Bankruptcy Law and Practice 2d § 47:6, 47-15 (1997) (emphasis added). This case does not present a situation where a required tax return was never filed because the Jacksons did file their original tax returns and, contrary to the Board’s assertions, the rationale and policy considerations that ■ underlie § 523(a)(1)(B)® do not support the conclusion that the Jacksons’ -failure to report the IRS reassessments constituted a failure to file a tax return.
257051-10283	STEWART, Circuit Judge: This is an appeal from the district court’s dismissal of Dr. Ronald E. Holmes’ Americans with Disabilities Act (“ADA”) claim against his former employer, Texas A&M University (“Texas A&M”). Holmes maintains that Texas A&M terminated him due to a disability in violation of Title II of the ADA. Texas A&M sought dismissal on limitations grounds. The- district court dismissed Holmes’ claim with prejudice. Holmes timely appeals, asking us to decide whether the district court erred in applying Texas’ two-year statute of limitations to this ease. Finding no error on the part of the district court, we AFFIRM its decision. Factual Background and Procedural History Holmes was a tenured associate professor of mechanical engineering at Texas A&M when he experienced a severe stroke in December 1989. He was hospitalized for three months and was removed from his job for approximately twenty months. The stroke caused a condition known as aphasia, which causes a loss of the ability to process language. Through extensive rehabilitation, Holmes relearned verbal and written communication skills. In August 1991, Holmes’ physician advised Texas A&M that Holmes could return to work, but that he might experience slowed reading skills and difficulty with his speech under stress. Texas A&M hired Holmes to teach a three-hour lecture course in Fluid Mechanics and Heat Transfer for the fall 1991 semester. Holmes received only 60% of his previous salary. At the conclusion of the semester, Holmes was informed by letter from Dr. Walter Bradley, head of the Mechanical Engineering Department, that students had complained of his inability to provide effective classroom instruction and that, as a result, Holmes would be teaching laboratory sections. Holmes apparently experienced similar problems teaching labs. Bradley verbally informed Holmes in May 1992 that he was considering recommending Holmes’ dismissal for lack of professional competence. Bradley subsequently sent Holmes a letter to this effect. On August 10,1992, Holmes received a letter from Bradley informing him that he was being terminated from Texas A&M for professional incompetence effective May 31, 1993. Holmes appealed the decision to terminate him and revoke his tenure to the Texas A&M Tenure Mediation Committee. The Committee and Holmes failed to reach resolution. Holmes then appealed his termination to Texas A&M’s Board of Regents, which on May 27, 1994, affirmed Holmes’ termination effective May 31,1994. Holmes Sled suit against Texas A&M on April 15,1996. He alleged that the University terminated him because of a disability, in violation of the ADA. Texas A&M sought to dismiss the suit under Fed.R.Civ.P. 12(b)(6) on the basis of limitations. Texas A&M Sled a motion to dismiss or in the alternative, for summary judgment on May 16, 1996, as well as a supplemental motion to dismiss on May 20,1996. It attached an exhibit to its motion which illustrates that on April 26, 1993, Holmes filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging violation of the ADA, 42 U.S.C. §§ 12131-32. On September 14,1993, the EEOC dismissed the charge for lack of jurisdiction, indicating that the actions about which Holmes complained had taken place prior to the effective date of the ADA. Such notice of dismissal was contained in a notice of right to sue. Texas A&M’s motion was granted and Holmes’ suit was dismissed with prejudice as time-barred. On appeal, Holmes argues that 1) his cause of action did not accrue until May 31, 1994, and therefore, his complaint was timely filed under the Texas two-year statute of limitations; 2) the statute of limitations applied by the district court should have been tolled due to Holmes’ efforts to pursue administrative remedies; and 3) the district court should have applied the four-year statute of limitations rather than the two year statute. We consider each of these arguments in turn below. Discussion The dismissal of a complaint under Rule 12(b)(6) is reviewed de novo. Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 164 (5th Cir.1997). “This Court will affirm an order granting a 12(b)(6) motion to dismiss ‘only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.’ ” McCann v. Texas City Refining, Inc., 984 F.2d 667, 673 (5th Cir.1993) (quoting Barrientos v. Reliance Standard Life Ins. Co., 911 F.2d 1115, 1116 (5th Cir.1990), cert. denied, 498 U.S. 1072, 111 S.Ct. 795, 112 L.Ed.2d 857 (1991)). 'In dismissing Holmes’ claim under Title II of the ADA, the district court applied the two-year state law limitations period for personal injury actions. Tex. Civ. Prac. & Rem.Code § 16.003(a). Holmes argues that this was error. Federal law does not provide a limitations period for claims under Title II of the ADA. See, e.g., Doe v. County of Milwaukee, 871 F.Supp. 072, 1076 (E.D.Wis. 1995). The enforcement provision of Title II, under which Holmes sued, adopts the remedies, procedures, and rights set forth in 29 U.S.C. § 794a (the Rehabilitation Act of 1973). 42 U.S.C. § 12133. The Rehabilitation Act’s coverage is nearly identical to Title II of the ADA, except that it applies only to entities receiving federal funding. Doe, 871 F.Supp. at 1078. Neither Title II of the ADA nor the 'Rehabilitation' Act specify a statute of limitations. The selection of a limitations period applicable to Rehabilitation Act cases is governed by 42 U.S.C. § 1988(a), which directs the court to 1) follow federal law if federal law provides a limitations period; 2) apply the common law, as modified by state constitution or statute,- if no limitations period is provided by federal law; but 3) apply state law only if it is not inconsistent with the Constitution and laws of the United States. Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 982 (5th Cir.1992). Texas’ two-year statute of limitations for personal injury is the only state statute urged before the district court and mentioned in the briefs. Assuming a two-year limitations period, Holmes first argues that accrual of his ADA claim did not occur until sometime after the EEOC’s September 20, 1993 ruling that he did not have a cause of action under the ADA. The only date he suggests as the date of accrual is the May 31, 1994 termination date of which he was notified in an August 10, 1992 letter, and which Texas- A&M affirmed on May 27, 1994. Holmes claims that because he filed -this action on April 15, 1996, less than two years from the May 31, 1994 accrual date, it is not time-barred. Holmes concedes, however, that the limitations period on a cause of action under a federal statute begins to run from the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured. Helton v. Clements, 832 F.2d 332, 334-35 (5th Cir.1987). See also Burfield v. Brown, Moore & Flint, 51 F.3d 583, 589 (5th Cir. 1995) (ADA cause of action arises when employee receives unequivocal notice of facts giving rise to his claim or when a reasonable person would know of the facts giving rise to a claim.) According to this rationale, time began to run on Holmes’ claim on August 10, 1992, the date of the initial written notice of termination. The district court found this to be the case and ruled that Holmes’ suit was untimely. Holmes did not dispute the application of the two-year limitations period at the district court level. Instead, he argued that the limitations period should have been tolled until May 31,1994 — his effective termination date. Again on appeal, Holmés asserts that the Texas statute of limitations was equitably tolled during the pendeney of Texas A&M’s administrative procedures occurring between August 10, 1992, and May 27, 1994, during which time the EEOC issued its ruling. Holmes insists that a federal court applying a state statute of limitations should also give effect to that state’s tolling provisions. Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992) (applying Texas tolling provisions in an action under 42 U.S.C. § 1983). “Texas courts have held that as a general rule, where a person is prevented from exercising his legal remedy by the ■ pendency of legal proceedings; the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” Id. We find that Holmes is not entitled to equitable tolling. EEOC proceedings and University proceedings are administrative rather than legal. Exhaustion of administrative procedures, including the filing of an EEOC claim, is not required'tmder Title II of the ADA. 28 C.F.R. pt. 35, app. A, sec. 35.172 (1995). See Tyler v. City of Manhattan, 857 F.Supp. 800, 812 (D.Kan.1994); Ethridge v. State of Alabama, 847 F.Supp. 903, 906-07 (M.D.Aa.1993). Under Helton and Bwrfield, Holmes’ claim accrued no later than August 10, 1992. Holmes did not re ceive the EEOC ruling (that he did not have an ADA claim) until September 20, 1993, at the earliest. Since exhaustion of administrative remedies is not required under Title II, there is no reason that the state statute of limitations should have been tolled prior to September 20, 1993. Therefore, even if the applicable statute of limitations were equitably tolled from September 20, 1993, until the University administrative procedures were completed on May 27, 1994, Holmes’ ADA claim was untimely under Texas’ two-year limitations period because the 13 and one-half months prior to the EEOC ruling would have to be counted. See Walker v. Hanes, 570 S.W.2d 534, 540 (Tex.Civ.App.1978). Finally, Holmes argues in the alternative that the general federal four-year limitations period in 28 U.S.C. § 1658 applies in this ease, thus making his ADA suit timely. Because Holmes did not raise the applicability of § 1658 in the district court, we review the issue under the plain-error standard. See Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1031-32 (5th Cir.1994), cert. denied, 513 U.S. 1112, 115 S.Ct. 903, 130 L.Ed.2d 786 (1995) (applying, in a civil ease, the plain-error analysis of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
1200866-26606	OPINION AND ORDER BLOCK, Judge. Before this court is the issue of how to apply the venerable equitable doctrine of waiver. As a bedrock of the Anglo-American law of equity, “waiver” has been defined as an “intentional relinquishment or abandonment of a known right or privilege.” E.g., Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Once a litigant fails to timely pursue or defend a known claim, equity forbids a court from enforcing the right seeking to be vindicated, and the action is thereby dismissed. What exactly constitutes “knowledge” of a right, the failure of which to seek to vindicate constitutes a waiver, is the crux of the issue facing the court. More specifically, under the facts of this case can knowledge of the law be imputed, or is actual knowledge of the law necessary for a waiver to be found? The English jurist, antiquary, and author John Selden (1584-1654) explained why knowledge of the law is generally presumed under our common law tradition: “Ignorance of the law excuses no man; not that all men know the law, but because ‘tis an excuse every man will plead, and no man can tell how to refute him.’ ” The defendant contends that plaintiff contractor had waived its breach of contract claim under the case law of the Federal Circuit by failing for years to protest allegedly-unlawful contract clauses. Plaintiff, on the other hand, cites various Federal Circuit cases for the proposition that where a contract clause drafted by the government is inconsistent with the law, the impropriety cannot be waived regardless of whether the plaintiff protested or accepted the clause, or how long the plaintiff sat on its rights. This court in Hermes Consol, Inc. v. United States, 58 Fed.Cl. 3 (2003THermes I”), denied the parties’ cross-motions for partial summary judgment filed pursuant to Rule 56 of the Rules of the Court of Federal Claims. The court requested the parties to submit supplemental briefing addressing the issue of waiver presently being considered. Based upon a review of both the supplemental briefing and the applicable case law, the court concludes that plaintiff waived its right to commence this action as a matter of law. Consequently, defendant’s motion for partial summary judgment is hereby granted and plaintiffs corresponding cross-motion denied. I. Background The reader is referred to the court’s opinion in Hermes I for a more detailed discussion of the relevant facts and issues of law. In essence, the case, an action for breach of contract, arose out of nine separate contracts for the sale of jet fuel between plaintiff Hermes Consolidated, Inc., d/b/a. Wyoming Refining Company (“Wyoming”), and the United States military, acting through the Defense Energy Supply Center (“DESC”). Between 1988 and 1994, Wyoming entered into nine contracts with the DESC to provide the government with jet fuel for military purposes. Each contract contained an “Economic Price Adjustment” (“EPA”) clause which tied the price of the contracts at issue to the fluctuating prices published in Petroleum Marketing Monthly (“PMM”). Under the EPA clauses, if the average price for fuel in a given region increased (as recorded in the PMM), Wyoming made more money per gallon of fuel sold, and vice-versa if the PMM average decreased. These PMM-based EPA clauses, however, were found unlawful in 1992 when this court ruled in MAPCO Alaska Petroleum, Inc. v. United States, 27 Fed. Cl. 405 (1992) that the clauses violated the Federal Acquisition Regulations (“FAR”). Since the MAPCO decision, various other decisions of this court have followed its reasoning. Finding the reasoning in MAPCO and particularly Gold Line Ref., Ltd. v. United States, 54 Fed.Cl. 285 (2002) (Gold Line II) compelling, this court likewise found the clauses unlawful. Hermes I, 58 Fed.Cl. at 8-10. Nevertheless, the court found troubling MAPCO’s waiver analysis. Relying primarily on Beta Sys., Inc. v. United States, 838 F.2d 1179, 1185-86 (Fed.Cir.1988) and Chris Berg, Inc. v. United States, 192 Ct.Cl. 176, 426 F.2d 314, 317 (1970), the MAPCO court opined that when a contract contains a provision the government is unauthorized to make, the contractor is not bound by estop-pel or waiver: “ ‘[W]hen a contract clause drafted by the Government is inconsistent with law, whether the appellant inquired, protested, accepted or otherwise assumed any risks regarding the same is not controlling; the impropriety will not be allowed to stand.’ ” Id. at 8 (quoting MAPCO, 27 Fed. Cl. at 416 (internal quotations omitted)). This court noted that the Federal Circuit seems to be of two minds on this issue in that Whittaker Elec. Sys. v. Dalton, 124 F.3d 1443 (Fed.Cir.1997); E. Walters & Co., Inc. v. United States, 217 Ct.Cl. 254, 576 F.2d 362 (1978)(per curiam), as well as American Telephone and Telegraph Co. v. United States, 307 F.3d 1374 (Fed.Cir.2002) (AT & T V), may be cited for the very opposite of the Beta/Chris Berg line of cases, that is: the doctrine of waiver precludes a contractor from challenging the validity of a contract under an unlawful regulation or other illegality where the contractor fails to raise the problem prior to execution or litigation. Id. at 4-6. See AT&T V, 307 F.3d at 1381; Whit-taker Elec. Sys. v. Dalton, 124 F.3d at 1446; E. Walters & Co., Inc. v. United States, 217 Ct.Cl. 254, 576 F.2d at 367-68. Nevertheless, the court rejected the notion of a contradiction, characterizing the so-called split of authority in the Federal Circuit as only apparent and not factual (“the precedent of the Federal Circuit appears to be of two minds in cases similar to the one subjudice,” Hermes I, 58 Fed.Cl. at 4 (emphasis added), “there also appears to be conflicting precedent from the Federal Circuit,” id. at 12 (emphasis added)). Construing the Beta/Chris Berg line of cases to mean that government “should not prosper because of its illegalities,” this court opined that “this should not, and cannot, mean that a contractor has carte blanche to behave in any [manner] it wishes. These cases are not a court-made contractor’s functional equivalent of 007’s license to kill.” Id. at 19. “Simply put, the Federal Circuit in these eases has not altogether abolished the doctrine of waiver. To rule as such would allow the devious to take undue advantage of governmental error, no matter how innocent, and prey on the public fisc.” Id. The key factual distinction between Beta Sys., Inc., Chris Berg, and Whittaker, E. Walters & Co., AT & TV, as well as the case at bar, “is that in the former eases the contractors either complained during contract formation or, at the very least, at an early stage in the history of the conflict.” Id. Clearly, the contradistinction is in the balancing of the equities. These cases are cases in equity seeking breach of contract damages based on reformation. Examining the waiver issue, the courts in the Beta/Chris Berg line of cases found the government’s bad behavior the weightier in the equilibrium of equities. In Whittaker, E. Walters & Co. and AT & TV, the contractor’s conduct was found the more malefic. In the case at bar this court recognized that Wyoming, “who was and is a sophisticated government contractor,” astonishingly waited fourteen years after entering the first PMM-based contract before suing in this court, and waited eight years after entering the last PMM-based contract before litigating. Wyoming never complained that it was not making a profit. And Wyoming never complained that the contract it was fulfilling was in part unlawful. Wyoming commenced this action, the court must add, a full ten years after the MAPCO decision was rendered. Clearly, it knew or should have known that the EPA clause was suspect. Again, this conduct is far more egregious than that which occurred in either Beta Systems, Inc. or Chris Berg. Id. Consequently, the court observed that the case sub judice fell “under the ancient doctrine of waiver.” Id. (quoting Ling-Temco-Vought, Inc. v. United States, 201 Ct.Cl. 135, 146, 475 F.2d 630, 637 (1973))(“[W]herever a contract not already fully performed is continued in spite of a known breach, the wronged party cannot avail himself of that excuse .... one side cannot ... act as if the contract remains fully in force ... run up damages, and then suddenly go to court.”). The court noted that there exists complicating factors perhaps requiring a factual laches hearing because many of the contracts were pre-MAPCO. Id. at 20. But in this case: the two post-MAPCO contracts - tilt the scale measuring plaintiff’s conduct, toward waiver rather than laches because, to the court, plaintiffs dilatory conduct appears willful. Simply put, under the circumstances of this case, the pr e-MAPCO contracts “piggy-back” onto the post-MAPCO contracts for purposes of the doctrine of waiver. There appears to be no justification for plaintiff not to sue on all of its contracts once MAPCO was decided by this court. Id. Be that as it may, the court requested supplemental briefing on the waiver and laches issues because: (1) the Federal Circuit’s law on waiver was not clear “as to whether the traditional presumption of knowing the law extends to trial court decisions such as MAPCO,” id., and (2) the only evidence in the record of actual knowledge by Wyoming of MAPCO was an implicit denial of knowledge by David R. Miller, Wyoming’s Vice President of Accounting and Administration, the man responsible for negotiating the contracts at issue in this case, id. His declaration stated “in negotiating and entering into Wyoming’s military fuel contracts with the DESC, I was not aware that the price indexes in Wyoming’s contracts were illegal.” Id. The parties were asked to respond to the following questions: 1. In the context of this case, can knowledge of this court’s decision in MAPCO be imputed to Wyoming such that waiver would apply? 2. Is a hearing or trial necessary in order to develop a factual record on the issue of waiver? 3. Does the doctrine of laches apply in this case, and if so, whether the court may raise the issue sua sponte? Assuming laches applies, is a hearing or trial necessary to resolve the matter? II. Discussion 1. The Parties’ Contentions. Echoing the ancient equity maxim, defendant argues in its supplemental briefing that Wyoming’s specific knowledge of MAPCO is not pertinent to the issue of waiver because ignorance of the law is no excuse. Def.’s Supplemental Br. at 1. It is not a trial court’s opinion of what the law consists of that is at issue, but the law itself. Thus, a court opinion is only relevant to the extent that it accurately states the law. Defendant bases this claim on Catawba Indian Tribe of South Carolina v. United States, 982 F.2d 1564, 1570 (Fed.Cir.1993), where the court stated, “any later judicial pronouncements simply explain but do not create, the operative effect of the law.” Def.’s Supplemental Br. at 1-2 (citing Jones v. United States, 6 Cl.Ct. 531, 533 (1984))(“In dismissing plaintiffs claim, the court noted that the Supreme Court did not make the law, but merely ‘threw judicial light upon what had been the law for more than eighty years, as everyone was bound to know.’ ”)(quoting Ide v. United States, 25 Ct.Cl. 401, 408 (1890)). The content of the relevant FAR provisions were fixed well before the first contract at issue, therefore, defendant claims that plaintiff is presumed to have knowledge of the FAR. Accordingly, defendant claims that plaintiffs silence for ten years after MAPCO is a waiver of any potential right to sue. Def.’s Supplemental Br. at 2. Defendant rejects plaintiffs contention that benefits provided by law may not be waived until appellate-level courts opine as to the meaning of the law. Def.’s Reply to Pl.’s Supplemental Br. at 2. The plaintiffs position is characterized as contrary to the previous case law of this court and the Federal Circuit. Id. at 2. See generally AT & T V; Whittaker Elec. Sys.; E. Walters & Co., Inc. Defendant further argues that at no time during the twelve-plus years of performance did Wyoming ever object to the disputed contract provision. Def.’s Mot. for Partial Summ. J. at 26. To be sure, it certainly had the opportunity, and the applicable statute provided plaintiff many occasions to review and reject the EPA provision. Def.’s Supplemental Br. at 3 (citing 31 U.S.C. § 3552 (2002)). Indeed, the government relied on plaintiffs lowest bid to award the various contracts now in dispute. To the contrary, plaintiff argues, before waiver may be evoked it must be demonstrated that it had actual, not an implied, that is, imputed, knowledge of the law, since the doctrine of waiver requires an intelligent abandonment of a known legal right. Pl.’s Supplemental Br. at 5 (citing United States v. Golitschek, 808 F.2d 195, 203 (2d Cir. 1986).) Thus, unless the law is “clearly established,” knowledge of the law may not be imputed. Pl.’s Supplemental Br. at 2. To the plaintiff, this equates to a decision from either the Supreme Court or another appellate court. Pl.’s Supplemental Br. at 2(citing Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir.2001)). Plaintiff contends that this position is justified because trial court decisions are often reversed or superseded, subjecting third parties to inconsistent standards. Pl.’s Supplemental Br. at 2 (citing United States ex. rel. Clark v. Anderson, 356 F.Supp. 445, 451 (D.Del.1973)). In a “what is good for the goose, is good for the gander” argument, plaintiff further maintains that if knowledge of trial court decisions may be imputed for waiver analysis, this imputation must also extend to those aspects of the law that are to plaintiffs advantage. Pl.’s Supplemental Br. at 6(citing Yerxa v. United States, 11 Cl.Ct. 110 (1986), ajfd, 824 F.2d 978 (Fed.Cir.1987)). Accordingly, plaintiff contends that if knowledge of the MAPCO decision is to be imputed, it would carry with it the finding that DESC’s violation of the law cannot be waived. Pl.’s Supplemental Br. at 6. While being aware of MAPCO, DESC awarded two contracts to plaintiff without even seeking a FAR devia tion. Id. at 7-8. Consequently, plaintiff contends that such conduct by DESC bars a waiver defense because of the agency’s “unclean hands.” Id. at 8. Countering this tit-for-tat argument, defendant alleges that it acted in good faith at all times. Indeed, defendant claims it sought a change of its EPA clauses through the FAR deviation process after the MAPCO decision in 1992. Def.’s Mot. for Partial Summ. J. at 6. While the defendant acknowledged the court’s ruling in MAPCO, DESC obtained individual deviations from the requirements of FAR 16.203-1 and 16.203-4(a) until DESC'were able to obtain a class deviation that allowed DESC to use industry market prices for EPA purposes. App. to Def.’s Mot. for Partial Summ. J. at 1-2 (ex. 12). In addition, a confirmatory amendment to the DLA’s FAR supplement was published in the Federal Register in 1999, which expanded the use of EPA’s based on market price references. App. to Def.’s Mot. for Partial Summ. J. at 1 (ex. 14). Finally, while not objecting to this court’s characterization of Wyoming as a “sophisticated contractor,” plaintiff asserts that the sophistication of a party may not be used in imputing the law because this would lead to differing laws of waiver depending on the status of the party. Pl.’s Supplemental Br. at 3. Plaintiff cites no authority for this proposition. 2. Did Wyoming Waive Its Claim? The court essentially agrees with defendant and concludes that plaintiff, through its failure to timely prosecute its breach of contract claim, knowingly waived such claim as a matter of law. A legal right or privilege must be timely asserted. Simple fairness dictates that a party should not sit on its hands. Undue delay taints the reliability of evidence and robs memory and thus veracity from witnesses. And significant harm may be the product of long delays particularly when one party justifiably relied on the expected and legally enforceable promises and performances of the other. As such, to deter behavior which strikes at the integrity of the judicial process, courts sitting in equity have refused to enforce stale claims when circumstances demonstrate an “intentional relinquishment or abandonment of a known right or privilege.” Johnson, 304 U.S. at 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). And the equitable doctrine of waiver has long been applied to “any provision, either of a contract or of a statute, intended for [a party’s] benefit.” Shutte v. Thompson, 15 Wall. 151, 82 U.S. 151, 159, 21 L.Ed. 123 (1872). It is thus clearly applicable to the FAR provision at play in this case. The doctrine of equity requires fairness to both parties to litigation. Accordingly, because the consequences of waiver can be draconian — at times the dismissal of an entire action — the doctrine requires that the party against whom waiver is being evoked possesses a conscious awareness (or in the words of the Supreme Court in Johnson, an “intelligent” or “knowledgeable” state of mind) in the abandonment of a right or a privilege. Demonstrating scienter as a practical matter is difficult, especially in situations such as the case at bar where corporate intent must be ascertained. But the law if anything is practical, in Justice Frankfurter’s characterization the “institutionalized medium of reason.” To that end waiver may be established either through an express statement or by implication through a party’s conduct inconsistent with an intent to assert a right. See Mooney v. City of New York, 219 F.3d 123, 131 (2d Cir.2000)(in determining whether complainant’s actions constituted a waiver of his federal maritime claims, the court stated that “a waiver need not be express, but may be inferred from the conduct of the parties”); Dooley v. Weil (In re Gar- finkle), 672 F.2d 1340, 1347 (llth Cir.1982) (“waiver may be express, or... implied from conduct”). Since waiver can be found by implication, it is wholly reasonable to take into consideration such factors as status, that is, the sophistication and other defining and relevant characteristics. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)(“the determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”); see AT & T V, 307 F.3d at 1380 (sophisticated contractor AT & T waived right to complain about fixed-price term of contract because it never sought price adjustment clause during negotiation phase). See generally 31 C.J.S. Estoppel and Waiver § 67 at 433 (1996)(“factors to be considered in determining whether defendant has made an intelligent waiver of his rights include his age, experience, education, background, and intelligence.”). This is so because “waiver-by-implication is determined objectively looking at the surrounding factual circumstances.” Plaintiffs unsupported proposition that applying such factors as sophistication to waiver analysis would result in differing law for different parties misses the point. There is only one law of waiver, but objective application of this doctrine obviously is dependent on the peculiar circumstance of a case. An example of waiver-by-implication is the aphorism that ignorance of the law is no excuse. A fundamental premise of our legal system is that parties are presumed to know the law, and ignorance of the law is no excuse. See, e.g., Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2 L.Ed.2d 228 (1957)(citing Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68, 30 S.Ct. 663, 666, 54 L.Ed. 930 (1910)); United States v. Wilson, 133 F.3d 251, 261 (4th Cir.l997)(citing Barlow v. United States, 7 Pet. 404, 32 U.S. 404, 411, 8 L.Ed. 728 (1833)(“it is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally”)). This concept is also applied in the noncriminal, regulatory law context. The leading case in this area is Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). In Merrill, two Idaho farmers replanted spring wheat on winter wheat acreage. After their crop was destroyed by drought, the Federal Crop Insurance Corporation, a wholly government-owned enterprise created by the Federal Crop Insurance Act, 7 U.S.C.A. § 1508(a)(West 2003), refused to pay the loss because the destroyed acreage was reseeded spring wheat. Merrill, 332 U.S. at 382, 68 S.Ct. 1. Published regulations contained a provision that spring wheat planted on winter wheat acreage was ineligible for crop insurance. Id. at 385, 68 S.Ct. 1 (citations omitted). Apparently, the local agents of the corporation misled the Merrills’ into believing that the spring wheat reseeded on winter wheat acreage was insurable. Id. at 382, 68 S.Ct. 1. The Merrills’ correspondingly argued that they had no actual knowledge of the applicable regulation. Id. Nevertheless, despite the resulting hardship, the Supreme Court overturned the Idaho Supreme Court’s determination of federal government liability. Id. at 386, 68 S.Ct. 1. Important to our discussion is the recognition by the Court that despite the obvious unfairness and the hardships it might produce, not only is a party’s knowledge of federal statutory law imputed, but so are the manifold regulations promulgated by agencies thereunder. The Court explained that it is simply impossible for Congress to address every problem and that therefore, there is a need for Congress to delegate to the experts in administrative agencies to respond through rulemaking. Id. at 384-385, 68 S.Ct. 1. Significantly, the Supreme Court noted the importance of the notice and comment procedure. To the Court, “everyone is charged with knowledge of the United States Statutes at Large, [and] Congress has provided that the appearance of rules and regulations in the Federal Register gives legal notice of their contents.” Id. at 384-85, 68 S.Ct. 1. See Peters v. United States, 694 F.2d 687, 696 (Fed.Cir.l982)(contractor charged with knowledge of Forest Service procurement regulation because it had been published in the Federal Register, thus waiving its objection to retroactive contract modification). Wyoming is presumed to have known of the law in this area. The FAR provision’s meaning and effect were fixed at the time it was adopted. See Catawba Indian Tribe of South Carolina v. United States, 982 F.2d 1564,1570 (Fed.Cir.l993)(“while the Supreme Court’s pronouncement in 1986 might be relevant to fixing the time when the Tribe subjectively first knew what the Act meant, it is fundamental jurisprudence that the Act’s objective meaning and effect were fixed when the Act was adopted”). Any later judicial pronouncement simply explain, but does not create, the operative effect. Id. (citing Chevron U.S.A., Inc. v. United States 923 F.2d 830, 834 (Fed.Cir.1991), Ide v. United States, 25 Ct.Cl. 401, 408 (1890), aff'd, 150 U.S. 517, 29 Ct.Cl. 558,14 S.Ct. 188, 37 L.Ed. 1166 (1893), and Jones v. United States, 6 Cl.Ct. 531, 532-33 (1984)). In a very real sense, the MAPCO decision itself is irrelevant. What is important is that the unauthorized use of the PMM clause is clear. This is the position of this court in Hermes I. The MAPCO decision did not create any new law, it merely construed an existing regulation. The court agrees with defendant’s assertion that “it defies reason to suggest that statutes and regulations contain no benefits that may be voluntarily waived, unless and until an appellate-level court interprets those statutes and regulations.” Def.’s Reply to PI. Supplemental Br. at 2. Following Wyoming’s logic would mean that enacted statutes and regulations would not place citizens on notice unless and until an appellate court reviewed and upheld them. This, of course, flies in the face of Merrill and its progeny, such as the Federal Circuit’s decisions in Peters and Catawba Indian Tribe. This court simply cannot agree with plaintiffs flawed understanding of our basic jurisprudence. Ironically, the position that the interpretation of the PMM-EPA clauses is clear is exactly the position that plaintiff argued in its cross-motion for partial summary judgement. Plaintiff cites numerous authorities in defending the proposition that the drafters of the FAR provisions were clear and “rejected establishing prices based on price indexes.” PI. Cross-Motion for Partial Summ. J. at 16 (“[T]he regulatory history of Far § 16.203 unambiguously establishes, the drafters of the FAR expressly considered and rejected DESC’s interpretation of FAR § 16.203 as permitting the use of price adjustment clauses that base price adjustments on price indexes such as the PMM Indexes.”) Id. at 18. As explained above, in all but one of the various factually-related cases considered by the Court of Federal Claims, the court has essentially agreed with plaintiffs contention that the PMM-EPA clauses are manifestly unauthorized. By arguing that it must have actual knowledge of MAPCO itself before waiver applies, plaintiff is now at least implicitly abandoning its prior position because not to do so now would fly in the face of Merrill’s constructive notice rationale. Clearly Wyoming is a sophisticated contractor. It entered into nine separate contracts for jet fuel over a six-year span (1988-1994). It bid over and over on solicitations containing the same PMM clauses about which it now complains. Wyoming failed to protest the PMM clauses when it received a copy of the defendant’s solicitation. Wyoming’s willingness to proceed on the terms of the contract indicates that Wyoming acquiesced to the clauses and thus waived any right to sue. See AT & T V, 307 F.2d at 1381 (the proper time for contractor to raise issue is at the time of contract negotiation); see also Whittaker Elec. Sys., 124 F.3d at 1446 (“The doctrine of waiver precludes a contractor from challenging the validity of a contract, whether under a DAR [defense acquisition regulation] or on any other basis, where it fails to raise the problem prior to execution, or even prior to litigation, on which it later bases its challenge.”)(citing United Int’l Investigative Servs. v. United States, 109 F.3d 734, 738 (Fed.Cir.1997); E. Walters & Co., 576 F.2d at 367-68). The law will not allow a party to reap the benefits of a contract and years later refuse to perform when the contract is no longer economically beneficial.
1565269-6727	MESKILL, Circuit Judge: Edwin Pagan appeals from the special assessments imposed in a judgment of conviction entered against him following a jury trial by the United States District Court for the Southern District of New York, Weinfeld, J., on one count of conspiracy, in violation of 21 U.S.C. § 846 (1982), to violate 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B), and one count of distribution of heroin within one thousand feet of a school in violation of 21 U.S.C. §§ 812, 841(a)(1) and 845a and 18 U.S.C. § 2 (1982). Affirmed. Pagan does not dispute the validity of his convictions or the portion of his sentence that imposed two years imprisonment, six years special parole and three years probation. His appeal is confined to the trial court’s imposition, pursuant to 18 U.S.C. § 3013 (Supp. II 1984), of a fifty dollar spe cial assessment on each of the two counts against him. Pagan argues that the imposition of these assessments was procedurally and constitutionally improper. We address the procedural claim first. During Pagan’s sentencing proceedings on August 14, 1985, Judge Weinfeld included a special assessment of fifty dollars in the oral sentence on the distribution count, but neglected to include a similar assessment in the oral sentence on the conspiracy count. During a colloquy with the court immediately after pronouncement of sentence, defense counsel argued that the special assessment was improper in light of counsel’s “understanding that Mr. Pagan is without any assets at the present time.” Sentencing Tr. at 12. Judge Weinfeld responded that he believed the assessment was mandatory and that the proper procedure was for Pagan to apply for a waiver after imposition, but added that “I will check the statute and before I sign the judgment, if there is discretion in the Court, I will accept your statement and suspend the special assessment.” Id. at 12-13. Defense counsel then argued that, regardless of the mandatory nature of the assessment, its application to an indigent defendant would violate the Constitution. Judge Weinfeld replied: “Well, that question you’ll raise in the Court of Appeals. If it is a mandatory provision, I’m going to impose it. I’m not going to pass upon the constitutionality of it.” Id. at 13 (emphasis added). The written judgment and probation/commitment order signed by Judge Weinfeld that same day out of Pagan’s presence imposed a fifty dollar special assessment on each of the two counts. Pagan argues that the imposition of the second special assessment in the judgment was a “variance” from the orally pronounced sentence. When a “variance” exists, the general rule is that the oral sentence controls. United States v. Moyles, 724 F.2d 29, 30 (2d Cir.1983). However, “[a] commitment order may properly serve the function of resolving ambiguities in orally pronounced sentences.” Id. at 30-31 (citing Payne v. Madigan, 274 F.2d 702 (9th Cir.1960), aff'd by an equally divided Court, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853. (1961)). Because of concerns voiced by counsel at the sentencing proceedings, the oral sentence in this case left the question of special assessments open until such time as the judge could determine from the statute if the assessment was mandatory. The oral pronouncement regarding special assessments, taken as a whole, was ambiguous. It was not improper for the court to resolve that ambiguity in the judgment by clearly imposing special assessments as to both counts as required by section 3013. Moyles, 724 F.2d at 30. Furthermore, because the imposition of special assessments under section 3013 was mandatory, a sentence lacking such an assessment would have been illegal. It is well established that a trial court has the power to correct an illegal sentence. Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 648-49, 91 L.Ed. 818 (1947); Fed.R.Crim.P. 35(a); see United States v. DiFrancesco, 449 U.S. 117, 134-36, 101 S.Ct. 426, 435-37, 66 L.Ed.2d 328 (1980). Although the correction should have been made in the defendant’s presence, Bartone v. United States, 375 U.S. 52, 53, 84 S.Ct. 21, 22, 11 L.Ed.2d 11 (1963) (per curiam); Fed.R.Crim.P. 43(a), the trial court’s failure to recall the defendant here was harmless error because the assessment was mandatory and, therefore, the defendant’s presence could not have affected its imposition. See generally United States v. Hasting, 461 U.S. 499, 508-09, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). Thus, whether we characterize it as a clarification or a correction of the oral sentence, the district court’s judgment here was proper. We reject the notion, argued for the first time in Pagan’s reply brief, that section 3013 can reasonably be construed to require the imposition of only one assessment on a given defendant at a time, no matter on how many counts he may have been convicted. Such a reading is illogical. If a defendant were simultaneously convicted on one misdemeanor and one felony, the clear language of 3013 would require separate $25 and $50 assessments. That being true, it cannot be supposed that Congress intended that the same defendant could be convicted simultaneously of several felonies and be subject to only a single $50 assessment. It is also unlikely that Congress would predicate the imposition of single or multiple assessments, based upon convictions for “an offense,” upon the happenstance that an offense may be tried by itself or in combination with several other offenses. Furthermore, because money collected under section 3013 is paid into a Crime Victims Fund, Comprehensive Crime Control Act of 1984, § 1402(b)(2), Pub.L. No. 98-473, 1984 U.S.Code Cong. & Ad. News (98 Stat.) 1837, 2171, it is reasonable to conclude that Congress, aware that multiple offenses would often entail multiple victims, intended that there should be a separate assessment for each offense. Relying heavily on Bearden v. Georgia, 461 U.S. 660,103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), Pagan next argues that the imposition of these mandatory assessments on him was unconstitutional because of his indigency. Pagan argues that section 3013 is irrational as applied to indigents and, therefore, violates due process, because the effort to extract money from indigents will result in a net loss to the government, contrary to the statute’s money-raising purpose. He also argues that the addition of interest and penalties for non-payment due solely to indigency violates equal protection, presuming, as he does, that the interest and penalty provisions of 18 U.S.C. section 3565 are incorporated in section 3013. See 18 U.S.C. § 3013(b) (“Such amount so assessed shall be collected in the manner that fines are collected in criminal cases.”)
12112438-4969	OPINION Dawson, Judge: On March 28,1974, the decision in Adolph Coors Co., docket No. 2840-69, was entered, showing the following deficiencies in income tax: 1965 _$3,660,205.49 1966 _ 1,109,568.91 Total_ 4,769,774.40 Petitioner’s appeal must be filed with the United States Court of Appeals for the Tenth Circuit on or before June 26,1974. Petitioner has filed a motion asking that this Court approve and accept a bond with surety consisting of an “Irrevocable Letter of Credit” issued by the First National Bank of Denver in the amount of $9,539,548.40. This is double the amount of the deficiencies redetermined by this Court and is the maximum amount of the bond required by section 7485 (a) (l). We need not discuss the sufficiency of the bond as the petitioner has offered an amount which in no event may be exceeded. See Barnes Theatre Ticket Service, Inc., 50 T.C. 28 (1968), which sets forth the usual practice of this Court in computing the bond amount. Petitioner asserts, and respondent does not disagree, that the bond and the “Irrevocable Letter of Credit”: absolutely obligates, guarantees and binds the First National Bank of Denver to pay to the Internal Revenue Service the aforesaid income tax deficiency liabilities upon the final decision by the Tenth Circuit Court of Appeals. The bond unconditionally assures payment to Internal Revenue Service of the aforesaid deficiencies, plus statutory interest, which shall ultimately be redetermined by the Court of Appeals, by reason of the Irrevocable Letter of Credit obligation of the First National Bank of Denver. The First National Bank of Denver as the surety-obligor with Coors as the principal, absolutely assures payment to the Internal Revenue Service for the subject income tax deficiency liabilities for the years 1965 and 1966. At the oral argument on this motion held on May 22,1974, petitioner indicated that the First National Bank of Denver would honor on presentation a sight draft for the full amount of the deficiencies, if any, plus interest following review 'by the Court of Appeals for the Tenth Circuit. The filing of a petition in the Tax Court stays the assessment and collection of any deficiencies until a decision is entered. See sec. 6213 (a). If no bond is filed prior to notice of appeal, assessment and collection will not be delayed after the entry of decision. See sec. 7485. Section 7482 confers jurisdiction on the various United States Courts of Appeals to review decisions of this Court. Section 7483 provides the method whereby such review may be obtained. In order for the petitioner to postpone or avert assessment and collection of $4,769,774.40 plus statutory interest, it must file a bond “with surety approved by the Tax Court.” Sec. 7485(a) (1). Section 7485 provides: SEO. 7485. BOND TO STAY ASSESSMENT AND COLLECTION. (a) Upon Notice of Appeal. — Notwithstanding any provision of law imposing restrictions on the assessment and collection of deficiencies, the review under section 7485 shall not operate as a stay of assessment or collection of any portion of the amount of the deficiency determined by the Tax Court unless a notice of appeal in respect of such portion is duly filed by the taxpayer, and then only if the taxpayer— (1) on or before the time his notice of appeal is filed has filed with the Tax Court a bond in a sum fixed by the Tax Court not exceeding double the amount of the portion of the deficiency in respect of which the notice of appeal is filed, and with surety approved by the Tax Court, conditioned upon the payment of the deficiency as finally determined, together with any interest, additional amounts, or additions to the tax provided for by law, or (2) has filed a jeopardy bond under the income or estate tax laws. If as a result of a waiver of the restrictions on the assessment and collection of a deficiency any part of the amount determined by the Tax Court is paid after the filing of the appeal bond, such bond shall, at the request of the taxpayer, be proportionately reduced. (b) Cross References.— (1) For requirement of additional security notwithstanding this section, see section 7482(c) (3). (2) For deposit of United States bonds or notes in lieu of sureties, see 6 U.S.C. 15. It is the purpose of such bond to assure the respondent that the deficiencies as redetermined by this Court and affirmed or modified by a reviewing court will be paid. Because section 7485(a) (1) provides for approval of the surety by the Tax Court the statute gives to this Court the authority to approve or disapprove the surety. We have not previously had occasion to approve a surety such as the one involved here. We are reluctant to approve a surety which may create some doubt as to collectibility of a deficiency which becomes final. But in the instant case we find the surety to be adequate because there is an unconditional promise to pay any liability finally determined and the bank has sufficient financial resources.
5769035-8430	OPINION OF THE COURT FUENTES, Circuit Judge: Appellant Malik Nelson appeals from the District Court’s denial of his motion objecting to a statement made during the Government’s opening argument, motion to exclude evidence of prior bad acts, motion to preclude the expert testimony of a Drug Enforcement (“DEA”) Special Agent, motion for a mistrial, and for finding that Nelson perjured himself when he testified in his defense. For the following reasons, we affirm the District Court’s judgment. I. Because we write primarily for the parties, we discuss the facts only to the extent necessary for resolution of the issues on appeal. Nelson and six co-defendants were charged with various drug related crimes that occurred between 2004 through 2006 in New Jersey. Nelson was accused of purchasing powder cocaine from Felipe Telleria and reselling it as powdered cocaine or crack. As part of the investigation, law enforcement wiretapped Telleria’s phone, recording conversations with Nelson 68 times over a three month period. Additionally, investigators installed a surveillance camera focused on Telleria’s home. Telleria, who testified for the prosecution pursuant to a plea arrangement, detailed Nelson’s participation in the drug conspiracy generally, and also stated that he sold Nelson three kilograms of cocaine on April 11, 2006. (App. 168) Telleria testified that Nelson paid him approximately $40,000 for the drugs and also gave Telleria his 2001 Chevrolet Tahoe as collateral. Telleria further testified that on June 3, 2006, Nelson purchased a half of a kilogram of cocaine from Telleria. (SA. 35) Surveillance footage shows Nelson entering and exiting Telleria’s home on that date. The wiretap recorded Nelson asking to purchase an additional nine ounces from Telleria later that day and surveillance photographs show Nelson entering and exiting Telleria’s house that evening. (App. 38; SA. 22-24). The federal investigation into this drug conspiracy ended after an Ohio State Highway Patrol Officer recovered two kilograms of cocaine in the trunk of one of Telleria’s drug suppliers during a routine and unrelated traffic stop. Nelson was arrested shortly thereafter. Nelson’s six co-defendants pled guilty. After a trial by jury, during which Nelson testified, he was found guilty of: (1) conspiring to distribute and possessing with intent to distribute at least five kilograms of cocaine and at least 50 grams of cocaine base from July 2004 through July 11, 2006; (2) distributing and possessing with intent to distribute at least 500 grams of cocaine on April 11, 2006; and (8) distributing and possessing with intent to distribute at least 500 grams of cocaine on June 3, 2006. The District Court sentenced Nelson to 360 months imprisonment, ten years of supervised release and ordered him to pay $300 in special assessments. II. Nelson raises several issues on appeal. He first contends that the statement — “Malik Nelson took those kilograms and kilograms of cocaine and resold them here on our streets of Southern New Jersey” — was argumentative and unduly prejudicial, and therefore the District Court should have struck it from the government’s opening statement. “The standard of review for allegedly prejudicial comments by the prosecution in its opening statement ... [i]f the error is non-constitutional ... [is whether] it is highly probable that the error did not contribute to the judgment....” United States v. Lore, 430 F.3d 190, 207 (3d Cir.2005) (internal citation & quotation marks excluded). As the District Court noted, the prosecution proffered that it would introduce evidence that Nelson conducted a drug business on the streets of South Jersey. Indeed, the evidence introduced at trial demonstrated that Nelson sold drugs in Bridgeton from 2004 through 2006. Drug distribution was the essence of the crimes charged against Nelson and therefore was not unduly prejudicial. Next, Nelson argues that the District Court abused its discretion when it denied his in limine motion to exclude the admission of six incidents involving recovering of large sums of cash, firearms, and of narcotics from Nelson. See United States v. Johnson, 388 F.3d 96, 100 (3d Cir.2004) (noting that we review evidentia-ry rulings for abuse of discretion). The government sought to admit these incidents because they were intrinsic to the charged conspiracy. The District Court agreed, but did, however, exclude or sanitize some of the evidence pursuant to Fed. R.Evid. 403. Nevertheless, Nelson argues that the District Court impermissibly permitted the Government to introduce “prior crimes and bad acts and to bootstrap its conspiracy allegation.” Appellant’s Br. at 32. “In cases where the incident offered is a part of the conspiracy alleged in the indictment, the evidence is admissible ... because it is not an ‘other’ crime. The evidence is offered as direct evidence of the fact in issue, not as circumstantial evidence requiring an inference as to the character of the accused. Such proof ... may be extremely prejudicial to the defendant but the court would have no discretion to exclude it because it is proof of the ultimate issue in the case.” 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5239, at 450-51 (1978). Here, the District Court did not abuse its discretion when it permitted sanitized introduction of these incidents because they directly related to the charges enumerated in the indictment. As the Government correctly notes, evidence of cocaine possession and distribution, possession of large amounts of cash and possession of firearms during the time period of an alleged drug distribution conspiracy directly proved the charges. Nelson’s argument, that the incidents are not intrinsic evidence of the conspiracy because they were removed in time from the substantive counts, is unpersuasive. These incidents, which involve possession of firearms, narcotics and large sums of cash, directly bear on the conspiracy charge. Third, Nelson challenges the District Court’s ruling permitting DEA Special Agent David McNamara to testify as an expert in the fields of narcotics and narcotics trafficking. After the close of his testimony, the District Court permitted Agent McNamara to answer a juror’s written question regarding how long it would take to microwave cocaine before it turned into crack. Before permitting Agent McNamara to answer the inquiry, the District Court questioned Agent McNamara to establish his expertise to opine on drug cooking in a microwave oven. Once established, the District Court permitted McNamara to answer the juror’s question. This ruling was not an abuse of discretion because pursuant to Fed.R.Evid. 702, a person with special knowledge, training or education may testify as an expert to assist a jury. Agent McNamara was a DEA agent with over 15 years experience. He was trained for 14 weeks at Quantico and had been involved in hundreds of drug operations, 90% of which involved cocaine. McNamara testified that approximately 10%-20% of those cases involved cooking crack cocaine in a microwave. (SA. 47-49) Thus, the District Court’s determination that McNamara had the experience to qualify as an expert in the field of cocaine manufacturing was not an abuse of discretion. Next, Nelson argues that the District Court erred when it did not declare a mistrial after the government inquired about his prior heroin use during cross-examination. Nelson’s counsel objected and the district court sustained that objection. “We review a district court’s decision not to grant a mistrial on the grounds that the prosecutor made improper remarks ... for abuse of discretion, and, if error is found, we' apply harmless error analysis.” See United States v. Molina-Guevara, 96 F.3d 698, 703 (3d Cir.1996) (citations omitted). During discussions over the objection, the District Court noted in open court that there was no evidence that Nelson was a heroin user, to which the Government replied “other than his own admission.” A lengthy sidebar then ensued during which the District Court strongly admonished the prosecutor and suggested the possibility of a mistrial. At that time, however, Nelson did not request a mistrial. Instead, the District Court instructed the jury to disregard the question and the colloquy regarding Nelson’s past heroin use, noting that whether he used heroin was irrelevant to the case. (App. 67)
6570760-11034	Maletz, Judge: This action concerns the correct dutiable value of certain unfinished welding fittings that were exported from West Germany in April 1967 by tbe manufacturer, H. Siekmann & Co., Bunde (Westf), West Germany, and entered by tbe plaintiff-importer at tbe port of Cbicago in June 1967. Tbe merchandise was appraised by the government on tbe basis of export value as defined in section 402(b) of tbe Tariff Act of 1930, as amended (19 U.S.C. § 1401a (b)). In making tbe appraisement, tbe government rejected tbe invoice prices as representing export value and adopted higher values. Plaintiff, while agreeing that export value is tbe proper basis of appraisement, insists that such value is represented by tbe invoice prices, i.e., tbe c.i.f. prices, less a pro-rated amount for ocean freight, seaway tolls and marine insurance. Thus,' tbe issue is whether plaintiff has established by a preponderance of the evidence that its claimed values represent tbe proper export value lor tbe merchandise in issue. Tbe pertinent provisions of section 402 of tbe Tariff Act of 1930, as amended (19 U.S.C. § 1401a) are as follows: (b) Expoet Value. — For tbe purposes of this section, tbe export value of imported merchandise shall be tbe price, at tbe time of exportation to tbe United States of tbe merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal markets of tbe country of exportation, in tbe usual wholesale quantities and in the ordinary course of trade, for exportation to tbe United States, plus, when not included in such price, tbe cost of all containers and coverings of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States. (f) DEFINITIONS. — For the purposes of this section— (1) The term “freely sold or, in the absence of sales, offered for sale” means sold or, in the absence of sales, offered— (A) to all purchasers at wholesale, or (B) in the ordinary course of trade to one or more selected purchasers at wholesale at a price which fairly reflects the market value of the merchandise, without restrictions ás to the disposition or use of the merchandise by the purchaser, except restrictions as to such disposition or use which (i) are imposed or required by law, (ii) limit the price at which or the territory in which the merchandise may be resold, or (iii) do not substantially affect the value of the merchandise to usual purchasers at wholesale. At the outset, it is undisputed that the merchandise is not on the final list; that the quantities herein ordered for the merchandise in question (carload lots) were the “usual wholesale quantities”; that the principal market in West Germany for the sale of such or similar merchandise for export value purposes was in Bunde (Westf), West Germany; and that there was no corporate or family relationship between the importer and exporter. Beyond that, the following additional facts were established by the record: During the years 1966 and 1967, plaintiff was the only United States buyer of unfinished welding fittings from the exporter, Siekmann. However, there was no exclusive agreement of any hind between Siekmann and the plaintiff and thus plaintiff was not a selected purchaser, within the meaning of section 402(f) (1) (B) . Sales made by Siekmann to plaintiff were without restrictions of any kind as to the disposition or use of the merchandise by the latter. The prices shown on the invoices were, with one exception, the -actual purchase prices. Further, the importations in issue were shipped in partial fulfillment of an order placed by plaintiff on November 4,1966 and accepted by Siekmann on November 21,1966. In this circumstance, the present controversy involves a single sale made by Siekmann to plaintiff. In order to establish that the prices at which Siekmann made this single sale constituted the export value for the merchandise, plaintiff was required to prove that the merchandise was freely offered for sale at such prices to all purchasers at wholesale for exportation to the United States. United States v. Malhame & Co., 19 CCPA 164, 171, T.D. 45276 (1931); United States v. Manahan Chemical Co., Inc., 24 CCPA 53, 62, T.D. 48333 (1936); L. H. Graves v. United States, 61 Cust. Ct. 580, 583, A.R.D. 242, 287 F. Supp. 611, 614 (1968). Against this background, the record contains no proof whatever as to how merchandise such as that in issue was offered to other purchasers at wholesale at the time of exportation to the United States,. Ordinarily, a freely offered price can be established by the existence-of a manufacturer’s price list freely circulated to the trade. See Judson Sheldon International Corporation v. United States, 51 Cust. Ct. 374, 378 R.D. 10586 (1963), aff'd, 54 Cust. Ct. 773, A.R.D. 183 (1965), However, the -testimony of Mr. Takiff, plaintiff’s general manager, was to tbe effect that Siekmann did not issue a price list for unfinished fittings. In the absence of a price list, numerous other avenues are available to a party to prove a freely offered price, such as prices contained in catalogues and letters, telegrams, etc. from the manufacturer to potential buyers. No such evidence was presented at the trial of this case. Indeed, far from establishing a freely offered price by the exporter, the testimony of Takiff makes clear that plaintiff initiated the transaction in issue by offering to buy the fittings at particular prices. Thus, Takiff testified that plaintiff began doing business with Siek-mann in 1965 when it wrote Siekmann offering to purchase unfinished fittings at specified prices. Siekmann accepted the offer and a contract ensued. In the latter part of the following year, 1966, plaintiff made a further offer to purchase from Siekmann the fittings here in issue at the same prices that had.been agreed upon in 1965. Takiff testified that because of the size of the order, he knew that plaintiff’s offer would be accepted by Siekmann — as it was. In sum, the offer involved in this case, was to purchase — not to sell. And on this score, the record fails to show that there was any mechanism whereby any potential purchaser could inform itself as to the selling price agreed upon between plaintiff and Siekmann. In fact, for all that appears in the record, it would seem that other United States purchasers would have to make their own offers to Siekmann in order to buy unfinished fittings such as those involved here, and that Siekmann could then accept an offer or make a counteroffer. In addition to Takiff’s testimony, there is another piece of evidence which militates against a finding that plaintiff’s prices represent tbe export value for the involved merchandise. This evidence is contained in a customs representative’s report dated August 3,1966 setting forth information furnished to him jointly by two officials of Siekmann in the course of an interview on May 9,1966. This report states that these two officials — one of whom was Edwin Klein, Siekmann’s general manager, and the other, Siekmann’s export manager- — provided the following information: Siekmann prices depend upon bargaining. Prices are based upon United States manufacturers prices, and depend upon the quantity and. quality ordered. Since early in 1964 customers generally stipulate a “limit price” which Siekmann accepts or rejects according to practical business considerations of profit. The single shred of testimony concerning the manner in which the merchandise in question was offered by Siekmann to other potential buyers in the United States is contained in an affidavit of the aforesaid Edwin Klein that was executed on May 21,1970. In his affidavit, Klein stated: 11. The same terms and prices for the same unfinished welding fittings are available to every U.S. buyer buying in large wholesale quantities, such as the quantities purchased by Sanford. [Emphasis added.] The weight to be given this evidence must be “assessed in practical terms, considering such factors as completeness, adequacy of bases, and possible motives to deceive.” Mannesmann Meer, Inc., v. United States, 58 CCPA 6, 8, C.A.D. 995, 433 F.2d 829, 831 (1970). Measured by this standard, it must be concluded that the foregoing testimony is entitled to little weight. In the first place it is unsupported by any records or offers to sell. Second, it is inconsistent with the testimony of Takiff which set forth in some detail how the prices on the imports were arrived at. Third, it is at direct variance with the earlier statement Klein gave to the customs representative. And in this latter connection, it is not without significance that Klein’s statement to the customs representative was made in May 1966 — almost two years before the present action was commenced on March 1, 1968, while his affidavit was executed in May 1970 — over two years after the action was started. These considerations aside, since in his 1970 affidavit Klein used the present tense “are,” it is impossible to conclude that the prices he referred to were those containing discounts. For paragraph 8 of his affidavit states that from the end of 1968 no discounts were given by Siekmann for unfinished fittings. Moreover, the statement in paragraph 11 of the affidavit is, at best, an indication that Siekmann was willing to sell to others at the same prices it sold to plaintiffs. However, the mere willingness to sell at the claimed prices, unaccompanied by price lists or evidence of overt communications with prospective customers, is insufficient to establish that the merchandise was freely offered for sale at such prices to all purchasers at wholesale for exportation to the United States. American Biltrite Rubber Co., Inc., Boston Woven Hose & Rubber Division v. United States, 60 Cust. Ct. 946, 950, A.R.D. 235 (1968). See also e.g., Transatlantic Shipping Co., Inc. v. United States, 28 CCPA 19, 23-4, C.A.D. 118 (1940); Bluefries New York, Inc. v. United States, 33 Cust. Ct. 501, 506, R.D. 8317 (1954). From the foregoing, it is held that plaintiff has failed to establish that the prices it paid for the merchandise in question were freely offered to all purchasers at wholesale. The action is therefore dismissed and the appraised values affirmed. Judgment will be entered accordingly. The record consists of the testimony of Sanford Takiff, general manager of plaintiff; an affidavit of Edwin Klein, sales manager of the exporter, Siekmann, that was executed in 1970 ; and a certified report of a customs representative relating to an interview he had in 1966 with Klein and the export manager of Siekmann. It is to be observed- that 28 U.S.C. § 2635(b) (1970) provides in part that where the value of merchandise is in issue, reports of customs officers and affidavits of other persons whose attendance cannot reasonably be had, may be admitted in evidence when served upon the opposing party in accordance with the rules of the court.
3947194-24491	MEMORANDUM AND ORDER JOSEPH H. YOUNG, District Judge. The plaintiff, Frank D. Cavey, currently an inmate at the Maryland Correctional Institute, has filed a civil rights action, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343, alleging violations of his constitutional rights by the defendants while the plaintiff was an inmate at the Maryland House of Correction during September and October 1976. The plaintiff has alleged violations of his rights under the First, Eighth and Fourteenth Amendments of the United States Constitution and has requested declaratory relief, compensatory and punitive damages for the disciplinary actions taken against him following the sending of a letter to the Warden and Assistant Warden of the institution, defendants Williams and Moore, respectively. The defendants have moved for summary judgment and the plaintiff has cross-filed for summary judgment, indicating in his motion that he wished to abandon his request for a jury trial and would accept this Court’s ruling on matters of fact and law which pertain to his case. I. Undisputed Facts Plaintiff Cavey was in a cell in the Special Confinement Area [SCA] of the Maryland House of Correction on the night of September 8-9, 1976. At approximately 2 a. m., another inmate, Thomas McMahon, who was also confined in SCA, began vocalizing in an. agitated manner. This inmate had attempted to hang himself earlier that night. At approximately 5 a. m., McMahon killed himself in his cell. The plaintiff states that McMahon climbed to the top of his cell and threw himself headfirst onto the concrete floor; the defendants do not dispute this fact in their motion for summary judgment. Later during the day of September 9, 1976, the plaintiff wrote a letter to the Assistant Warden, defendant Moore, a facsimile of which accompanied the defendants’ motion for summary judgment, which reads: Mr. Moore Sept. 9 No Compassion What So Ever On 2 o’clock Wensday morning a inmate in a suicide cell begs Ltd. Mooney for a few minutes of his time. It is quite [quiet] and you can here what he is saying. “Ltd. Mooney can I see you? can I see you Ltd. Mooney? can I see you Ltd. Mooney? Please. Don’t leave Ltd. Mooney. Please don’t leave. Please let me see you for just a minute. By the way the inmate is talking you realize he is in a state of acute depression and may have any number of mental problems. The suicide cell is used for an observational cell for inmates who are going through various stages of depression. But does Ltd. Mooney give this man one minute of his time. No. No compassion what so ever. At 5 o’clock on this same morning the inmate climbs the bars in his cell, dives to the floor, crushes his skull, and dies. What a waste. What a shame. But does anyone care? If Ltd. Mooney would have given this man one minute of his time is it possible this tragedy could have been avoided? Who knows. I think it is about time the state should take the suicide cells into consideration. If the cells where padded a life could not be taken. Maybe the state does not what [want] to pay the money to pad a cell? Maybe they feel a human life is not worth the money? You can either have this printed in the New Letter or the New Post and Sunday Sun. The choice is yours. If it is not printed in the News Letter I will also send a copy of this to the inmates family. Respectfully Frank Cavey #123-599 S.C.A. #45 A similar letter, identical except for minor grammatical changes, was addressed and sent to “Mr. Williams” [defendant Ralph Williams, Warden of the Maryland House of Correction]. Williams forwarded a copy of the letter he had received to Major Brown, Shift Commander and to a “Mr. Byrne AW.S&C” with the notation: Interview, investigate, & take the action necessary & appropriate False info. & what other violations of rules & regulations. [Copy of Williams’ letter from Cavey with affidavit of Marlin F. Bachtell, Assistant Superintendent II of Maryland Correctional Institution indicating its authenticity, filed as an exhibit by the defendants at the request of the Court.] Defendant Moore forwarded a copy of the letter he had received from Cavey to Major Leon Brown, with the notation in his handwriting at the top “Please look into this matter”. [Affidavit of Moore regarding handwriting and copy of letter as defendant’s exhibit, filed in this case.] On September 14, 1976 Major Brown referred the letter to Richard E. Vernon, Lieutenant, for an investigation. Vernon interviewed Cavey and submitted a report to Major Brown on September 15,1976 [Exhibit to defendants’ motion for summary judgment.] The report indicates that Cavey felt strongly about the incident, intended the letter to bring the condition of the suicide cells to the administration’s attention and not to make charges against Lieutenant Mooney and that Cavey had not altered his story about what had occurred. The report refers to another report of the incident, filed by Lt. Mooney on September 9, 1976. [Exhibit filed with defendants’ motion for summary judgment.] The report notes that Thomas McMahon was, at 12:10 a. m. September 9, 1976, attempting to hang himself with his bedsheets, that Mooney was called to the scene at that time and tried to calm the inmate down but that the inmate stated he did not want to talk and would talk to Mooney “later on”. Mooney reported that he complied with this request and the inmate appeared to “relax to some extent”. The last sentence of the Mooney report reads: This conversation took place approximately 2:00 A.M. and on both occasions Sgt. Wharrey was instructed to keep this man under close observation at both times. This sentence appears to have been typed at a different time than the rest of the report-the ribbon quality is darker and the line alignment altered. It appears that the officer typed in his name at the bottom of the page when he made the first entries in the report. It is unknown when the final sentence was added. Lt. Vernon’s report to Major Brown goes on to state Vernon’s feeling that Cavey could not have heard what, if anything, Mooney said to McMahon. Cavey disputes this, stating that the SCA was like an “echo chamber”. Vernon mentions that Cavey may have been sleeping between 2 a. m. and 5 a. m. when the inmate committed suicide. This assertion does not put into dispute any of Cavey’s allegations in his letter. Vernon ends his report by asking Brown to advise whether an infraction report should be submitted for Cavey’s having made allegations against Lt. Mooney and his “threat of sending the letter to the inmate’s family if the letter is not published in the Newsletter”. Vernon suggests three rules infractions: disobeying an order, use of threatening language and giving false information. Apparently Brown indicated approval, for charges on each of these rules were brought against Cavey, labelled “major” infractions and submitted to the Adjustment Team. Cavey appeared at the hearing, where Lt. Vernon gave a statement of the facts, referring the Adjustment Team to the copy of Warden Williams’ letter from Cavey with the Warden’s “comments”. The record of the questions asked Cavey and his replies indicates that Cavey affirmed that he had told “them” that if the letter was not published he would “send it to the man’s family”. Cavey re-asserted his version of the facts and his belief that he had given truthful information. [The Classification Adjustment Team report and worksheets are exhibits in the case, filed with the defendants’ motion for summary judgment.] The team found Cavey guilty of use of threatening language and disobeying an order. (Rules 3 and 1) He received 15 days in segregation as punishment. Lieutenant Vernon has provided information about the three rules involved in the charge against Cavey. [Letter pf Vernon to John R. Byrne, January 17, 1977, submitted as an exhibit at the Court’s request.] Vernon explains that upon being found guilty of breaking any prison rule or regulation, the inmate is considered to have “disobeyed” an order, and broken Rule 1. Vernon’s comments on the substantive violations read as follows: Violation #3. “Use of threatening Language” This violation was based on the contents of Cavey’s letter where in fact he said he would submit this false episode to the newspapers and send the letter to the inmate’s family. This statement was enterpreted as a threat of action if certain demands were not met. Namely, padded cells be placed in the Special Confinement Area. If such a false episode is submitted to the civilian news media as well as the inmates newspaper, it could lead to bad publicity for the institution and perhaps if read by'the inmates would produce unrest among the general population. Violation #22. “Giving false Information” This violation was based on Cavey’s statement that Lt. Mooney did nothing for the suicidal inmate, wheras it was found and documented that Lt. Mooney did in fact, talk to the inmate and then take precautionary measures. In the letter Vernon confirms that Warden Williams’ comments on Cavey’s letter were submitted to the Adjustment Team at the same time as the infraction report. II. The Plaintiff’s Legal Claims As clarified in his cross motion for summary judgment, Cavey claims that his right of freedom of speech was violated when he was punished for exercising that right by being sent to “lock up” for fifteen days. He asserts this also constitutes cruel and unusual punishment and a violation of his due process rights. In an earlier document submitted in this case, Cavey also argued that a finding of guilty of disobeying an order “because he is found guilty of disobeying any order” constitutes being punished twice for the same “crime” and subjects him to double jeopardy. [Plaintiff’s Motion in Contra, filed February 14, 1977] A. Personal Participation of the Defendants Defendants Levine and Moore have moved for summary judgment on the grounds that, the plaintiff has failed to ascribe to them any active role or knowing acquiescence in an intentional deprivation of the plaintiff’s civil rights. The plaintiff has made no claim that defendant Levine had any personal knowledge of the incidents involved in this case. Defendant Moore apparently merely forwarded a copy of the letter he received from Cavey to Major Brown asking him to “please took into this matter”. That request, standing alone, constituted an appropriate and totally innocuous action on the part of an assistant warden who has received a disturbing letter about the circumstances surrounding the suicide of an inmate. Moore’s request contained no directive to Brown to begin disciplinary actions against Cavey, albeit there may have been an unexpressed license granted. There are no documents before the Court which link defendant Moore in any further fashion to the Adjustment Team hearing and the punishment allotted Cavey. For these reason, as to both Moore and Levine, the plaintiff has failed to state a claim under 42 U.S.C. § 1983 and their motions for summary judgment will be granted. Barrow v. Bounds, 498 F.2d 1397 (4th Cir. 1974); Bursey v. Weatherford, 528 F.2d 483 (4th Cir. 1975), rev’d on other grounds, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Cf. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). As to defendant Mooney, there is no evidence linking him to the decision to bring proceedings against Cavey. Mooney’s report of the McMahon incident does not mention Cavey. The report itself may have been correct; it may have been erroneous, self-serving or even duplicitous. This Court makes no ruling on the factual issue of whether Mooney was on the scene with the suicidal inmate when Cavey states no one responded to the inmate’s cries for help. The gravamen of the plaintiff’s complaint has to do with what happened to him after he wrote his letter, and who was responsible for causing a disciplinary proceeding to be called. Defendant Mooney did not participate in those decisions and thus no constitutional claim has been made against him. His motion for summary judgment will be granted. The circumstances which lead this Court to grant the motions for summary judgment of Moore, Levine and Mooney do not apply to Warden Williams. It is undisputed that he received and personally read the letter which Cavey sent to him. It is a fact that as a result of reading that letter he told his subordinates to bring disciplinary action against Cavey which was to include a charge of giving false information “& what other violations of rules and regulations”. As a direct result of the Warden’s order, Lt. Vernon and Major Brown drew up charges against Cavey , and submitted them with the Warden’s comments to the Adjustment Team. With Williams’ imprimatur, the Adjustment Team raised no question about the propriety of the charges, found Cavey guilty and punished him. Williams’ participation was direct, knowing, personal and persuasive. The inescapable conclusion to be drawn from Williams’ directive to Brown is that Williams thought Cavey should be punished for writing the letter, a motive which — as discussed below — is an improper one and violative of Cavey’s constitutional rights. Williams’ assertion of lack of personal participation in this case is without merit, because the Court finds an “affirmative link between the occurrence of misconduct” (punishing Cavey for writing the letter) and the adoption of a policy showing “authorization or approval of such misconduct”. Rizzo v. Goode, supra, at 371, 96 S.Ct. at 604. B. Constitutional Claims When Warden Williams reacted to Cavey’s letter by deliberately ordering the institution of disciplinary proceedings against him, he brought into play a form of censorship calculated to restrain Cavey from any further attempts to communicate his version of the McMahon suicide incident to either the deceased’s family or the outside press. In so doing, Williams utilized prison regulations in a manner violative of the plaintiff’s first amendment rights and those of outsiders with whom he would have corresponded. The addressee as well as the sender “derives from the First and Fourteenth Amendments a protection against unjustified governmental interference with the intended communication”. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). In Martinez the Supreme Court considered prison regulations which had been used to block transmission of a letter from an inmate to an individual outside the institution. After conceding the federal courts had generally adopted a “hands-off” policy towards reviewing the actions of prison administrators responsible for the internal order and discipline of institutions and the rehabilitation of prisoners, the Court stated that nonetheless: a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison . . . practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. Id., at 405-406, 94 S.Ct. at 1807. The Court then outlined the governmental interests at issue in a prison context. These are “the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.” The Court then set out the standards for censorship of prisoner mail: First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Id., at 412-413, 94 S.Ct. at 1811. [Emphasis added.] In Procunier v. Martinez the Court found unacceptable prison officials’ contentions that statements that “magnify grievances” or “unduly complain” should be censored “as a precaution against flash riots and in the furtherance of inmate rehabilitation” because the Court found no proof for either proposition. Justice Marshall, concurring in the Court’s opinion, urged that it move to an affirmative recognition that a “prisoner does not shed . . . basic First Amendment rights at the prison gate”. Id., at 422, 94 S.Ct. at 1816. The Supreme Court evidenced such recognition in its second major opinion on the subject in Pell v. Procunier, 417 U.S. 817, at 824, 94 S.Ct. 2800, at 2805, 41 L.Ed.2d 495 (1974), where, the Court stated that prisoners have a “liberty” interest in corresponding with the outside world and that they were entitled to: an open and substantially unimpeded channel for communication with persons outside the prison including representatives of the news media. In deciding that the communication need not include live press conferences, the Court placed heavy reliance upon the prisoners’ full access to the media through the mails. While incarceration may include “the necessary withdrawal or limitation of many privileges and rights”, the Supreme Court held that: a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus challenges 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, to whose custody and care the prisoner has been committed in accordance with due process of law. Pell v. Procunier, supra, at 822, 94 S.Ct. at 2804. Each of the federal circuit courts to interpret the Supreme Court’s teachings in Martinez and Pell has found that prisoners do not shed their First Amendment rights to free expression when entering penal institutions. See, e. g. Navarette v. Enomoto, 536 F.2d 277 (9th Cir. 1976); Nickens v. White, 536 F.2d 802 (8th Cir. 1976); Aikens v. Jenkins, 534 F.2d 751 (7th Cir. 1976). The courts have stated that the first amendment right of prisoners to hold and express beliefs deserves “special solicitude”, Morgan v. LaVallee, 526 F.2d 221 (2d Cir. 1975) and that letter mail is a “vital means of communication in our society”, United States v. Ramsey, 176 U.S.App.D.C. 67, 538 F.2d 415, 420 (1976), cert. granted, 429 U.S. 815, 97 S.Ct. 56, 50 L.Ed.2d 75 (1976). The Fourth Circuit, in Timmerman v. Brown, 528 F.2d 811, 812 & 815 (4th Cir. 1975), found that prisoners had a cause of action under the civil rights statute when they showed that the defendants: conspired to deprive plaintiffs of their right ... to speak and write about the wrongs perpetrated upon them . We have no doubt that plaintiffs, even though they are inmates, have some first and fourteenth amendment rights to air their grievances . The stifling of expression of prisoner’s beliefs was also decried by the Third Circuit in Main Road v. Aytch, 522 F.2d 1080 (3rd Cir. 1975). The Court held that the power of the superintendent of the penal institution, without benefit of administrative directives, to decide that certain topics were “explosive”, “sensitive” or affected the “climate of the institution” constituted an unacceptable and uncontrolled latitude about what ideas and feelings could be expressed by the plaintiff-inmate and violated his constitutional rights. Such action violated basic constitutional principles: A fundamental purpose of the First Amendment is to foreclose governmental control or manipulation of the sentiments uttered to the public. With only carefully calibrated exceptions, [obscenity and “clear and present danger”] “the First Amendment means that government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content.” . In particular, state or local as well as federal officials, including prison administrators, may not prevent persons from publicizing their views in order to prevent criticism of other government agencies. Main Road v. Aytch, supra, at 1088-89. [Footnotes omitted.] The Fifth Circuit, in Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976) considered the question of censorship of prisoners’ communications by mail with the press, and specifically indirect forms of censorship. Finding that written correspondence is a principal method available to prisoners to communicate with private and public individuals or entities,- the Court held that jail practices which inhibited that medium seriously impaired the prisoner’s communicative capability and constituted an abridgement of his constitutional rights. Similarly the federal district courts have uniformly applied the two-part test enunciated in Martinez, requiring both a serious and legitimate prison concern (internal order and discipline, security, rehabilitation) and a tailoring of restrictions to those no broader than that which is essential to protect the governmental interest. In those few cases in which the prison authorities have found court approval for their actions, the circumstances justifying the censorship are clear. Prisons seeking to protect inmates being sent from one institution to another for their well-being have been permitted to screen letters from other inmates in the old institution to those in the new, lest the placing of the inmate-at-risk in the new prison be jeopardized. Peterson v. Davis, 415 F.Supp. 198 (E.D.Va.1976); Williams v. Ward, 404 F.Supp. 170 (S.D.N.Y.1975). Occasionally there are situations which pose demonstrated clear and immediate danger of disorder and violence, Mims v. Shapp, 399 F.Supp. 818 (W.D.Pa.1975) or prisoners’ use of the mails to abuse and threaten former victims. White v. Woodroff, 378 F.Supp. 1004 (W.D.Va.1974). In the majority of cases, the courts have ruled unconstitutional the attempts of prison authorities to prevent inmates from communicating their grievances, their ideas and their concerns to the outside world, whether it be by informal censorship of “inflammatory” material, Brown v. Schubert, 389 F.Supp. 281 (E.D.Wis.1975); Chiarello v. Bohlinger, 391 F.Supp. 1153 (S.D.N.Y.1975), or by prison regulation, Hopkins v. Collins, 411 F.Supp. 831 (D.Md.1976); Burke v. Levi, 391 F.Supp. 186 (E.D.Va.1975); Frazier v. Donelon, 381 F.Supp. 911 (E.D.La.1974). In none of the cases cited was there as flagrant and harsh censorship as occurred in the treatment of the plaintiff in this case. Cavey was punished for daring to write to the chief administrator of the institution in which he was incarcerated telling the Warden of an incident which, if true, could only be of great concern to the Warden and others both within and without the prison. Cavey’s “threat” was that he would exercise his own First Amendment right to voice his feelings and communicate to the outside world. Those to whom he said he would write had First Amendment interests at stake in receiving his communication, however erroneous. Procunier v. Martinez, supra. In response, Williams moved swiftly and effectively to silence Cavey with punishment. Defendant Williams has submitted no documentation in his motion for summary judgment or otherwise during the course of this action to merit any finding that the security or discipline of the institution was actually threatened in any way by Cavey’s writings, or that any legitimate purposes of rehabilitation were served by muffling Cavey’s criticism. The only document before the Court is the letter of Lieutenant Vernon, excerpted previously, in which the “threat” Cavey posed was obviously that: “bad publicity for the institution” might result if the letter reached outsiders. (The conclusion that “perhaps” inmate unrest would result is too highly speculative to be sufficient under the Supreme Court’s standards in Martinez.) No attempts were made to exercise the least restrictive means of handling Cavey’s criticisms. Although Cavey had no right to demand that his letter be printed in the prison newsletter or that the prison authorities make arrangements for its publication in local outside newspapers, he had the right to send his letter to the outside world unimpeded.
238566-10667	EUGENE A. WRIGHT, Circuit Judge: In this class action for a declaratory judgment in favor of the class and in-junctive relief in favor of three named plaintiffs, the district court was asked to rule that certain disciplinary procedures of the Portland, Oregon School District No. 1 were constitutionally infirm. The court held that the procedures for effecting an expulsion were unconstitutional in part, but that in all other respects the procedures complied with due process requirements. The court denied equitable relief to the three individual plaintiffs. All parties appealed to this court. We affirm the judgment of the district court in all respects. I. FACTS The deputy superintendent of schools for Portland School District No. 1 announced “Disciplinary Procedures” in December 1969. These rules contained the following components: (a) An explanation of the procedure for suspending a student; (b) An explanation of the procedure for expulsion of a student; and (c) An explanation of the substantive grounds for disciplinary action. At issue in the present lawsuit is the constitutionality of these “Disciplinary Procedures,22 as applied in each of the following cases. 1. Gerald Brown. As the result of an alleged assault on a fellow student on January 6, 1970, Gerald Brown was suspended from Roosevelt High School on January 19, and his parents were notified thereof by letter on the same day. The parents were told that Gerald was suspended “pending an investigation for a possible recommendation to the Principal, [defendant Arthur] Westcott, for an expulsion from school.” The January 6 assault was given as the reason for the investigation. The letter did not give the name of the alleged assault victim but Gerald and his parents testified that they knew the basis for the charge. In accordance with the District’s procedures no hearing was held prior to Gerald’s suspension. Somewhat contemporaneously, a petition was filed in the Juvenile Division of the Multnomah County Circuit Court, alleging the delinquency of Gerald Brown. The high school vice-principal recommended to Principal Westcott that Gerald remain suspended pending the outcome of the Juvenile Court hearing. When it was learned that the hearing was not scheduled until late in February, the school administration determined that Gerald should be readmitted to school, which was done on February 2. No further disciplinary action was taken against Gerald but the Juvenile Court found him guilty of the assault and reprimanded him. In that proceeding Gerald and three others had stated that he acted in self-defense. 2. Rita Brown. Gerald’s sister, Rita Brown, was suspended from Roosevelt High from January 23 to February 3, 1970, pending a hearing on another Juvenile Court complaint. Her parents were promptly informed of the suspension and the reason therefor and she, too, was allowed to return to school on February 3 because of the delay encountered in Juvenile Court. No hearing was held either before or after her suspension. The petition filed against her in Juvenile Court alleged an assault on two other girls, both Caucasians. She was found guilty on one charge and was reprimanded. No further disciplinary action was taken against her by the school authorities. 3. Edward Lockridge. Edward Lock-ridge was suspended without a hearing from Grant High School on January 26, 1970 for disruptive influence in class and an assault on another student on that day. The vice-principal of Grant made an investigation to determine whether Lockridge should be expelled. In part because of his long history of assaultive and disruptive behavior, expulsion was recommended and Lock-ridge’s mother was so informed on February 3. Lockridge’s mother asked for a conference with the principal of Grant as provided in the Disciplinary Procedures. She also asked that she and her son be allowed to bring counsel to the conference, to confront and cross-examine complaining witnesses and to introduce evidence on Lockridge’s behalf. In accordance with the District’s rules, these special requests were denied and, on February 11,1970, this action was filed. The conference, scheduled for February 13, was postponed pending a disposition of Lockridge’s motion for a temporary restraining order which was heard and denied on February 25, 1970. When the conference with the principal was rescheduled for March 6, neither young Lockridge nor his parents appeared. The principal then informed him and his mother by letter that the boy had been expelled for the remainder of the school year. A further conference with the Area Superintendent of Schools was not requested. In his deposition, Lockridge admitted the assault on the other student on January 26. II. STANDING Plaintiffs have attempted to mount an attack on the entire disciplinary framework, whether or not applicable to their cases. It is obvious that they have no standing to make such a broad brushed assault. Communist Par ty v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). As the Supreme Court said in the Communist Party ease: “[T]he role of the judiciary in a government premised upon a separation of powers . . . precludes interference by courts with legislative and executive functions which have not yet proceeded so far as to affect individual interests adversely.” 367 U.S. at 72, 81 S.Ct. at 1397. Gerald and Rita Brown were suspended for relatively short periods pending disposition of their cases in Juvenile Court. These suspensions were effected without a prior hearing and their permanent school records now indicate that they were suspended for alleged assaults on other students. Each has standing to litigate the constitutionality of that part of the disciplinary procedures which permits suspension without a prior hearing, and each is representative of a class which was suspended in a similar manner. Each may also properly raise the contention that the disciplinary procedures are unconstitutionally vague insofar as they provide that a student may be disciplined for assaulting another student. Edward Lockridge also has standing to object to his suspension without a prior hearing and his expulsion pursuant to regulations allegedly “void for vagueness.”- Furthermore, he may assert on behalf of the class he represents the contention, accepted by the district court, that the expulsion procedures are unconstitutional for failure to permit the student to confront and cross-examine adverse witnesses and to produce witnesses to testify on his own behalf. The existence of a defense to Loekridge’s individual claim for relief has no effect on the court’s obligation to consider and rule on those issues of law which are common to the claims of Lockridge and the other class members. Mersay v. First Republic Corp. of America, 43 F.R.D. 465, 469 (S.D.N.Y.1968); 3B Moore’s Federal Practice ¶ 23.06-2, p. 23-326. Plaintiffs do not, however, have standing to challenge on vagueness grounds those portions of the regulations and procedures pursuant to which no individual plaintiff was disciplined. Gesicki v. Oswald, 336 F.Supp. 371 (S. D.N.Y.1971). These individuals “cannot represent a class of whom they are not a part.” Bailey v. Patterson, 369 U.S. 31, 32, 82 S.Ct. 549, 550, 7 L.Ed.2d 512 (1962). Nor does the Black Coalition have standing to represent those students disciplined under other regulations. While the Black Coalition purports to include within its membership all Black students at Roosevelt High School including, undoubtedly, students disciplined under other portions of the regulations and procedures, an association has standing to represent its members in a class suit only if “there is a compelling need to grant [it] standing in order that the constitutional rights of persons not immediately before the court might be vindicated.” Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968). There is no reason in the present case why such individuals as would be or have been prejudiced by any alleged unconstitutionality in the regulations and procedures could not come forward and assert their own claims in court. There being no compelling need to grant the Black Coalition standing, we decline to do so. III. THE COMMON ISSUES OF LAW A. TEMPORARY SUSPENSION WITHOUT A PRIOR HEARING Without hearings, the student plaintiffs were suspended for periods ranging from six school days to six weeks. They contend that they could not constitutionally be suspended from classes without some type of hearing. See Pervis v. LaMarque Independent School District, 466 F.2d 1054 (5th Cir. 1972); Williams v. Dade County School Board, 441 F.2d 299 (5th Cir. 1971); cf. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). See also Stricklin v. Regents of the University of Wisconsin, 297 F.Supp. 416 (W.D.Wis.1969). The requirement of a prior hearing will depend primarily on the nature of the penalty imposed, the extent to which the underlying facts are in dispute, and the need for swift action to preserve order and discipline within the school. The courts have disallowed expulsions and long-term suspensions unaccompanied by hearings which comport with the standards of due process of law. Perms, supra; Williams, supra; Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967); Woods v. Wright, 334 F.2d 369 (5th Cir. 1964); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). But brief suspensions without a hearing have been more readily tolerated. Linwood v. Board of Education of City of Peoria, 463 F.2d 763 (7th Cir. 1972); Dunn v. Tyler Independent School Dist., 460 F.2d 137 (5th Cir. 1972), and cases cited therein at 145. Brief suspensions are often justified by the interest of school officials in maintaining an atmosphere conducive to learning. The injury caused to assaultive and disruptive students by brief suspensions is minimal compared to the danger posed to the normal functioning of an educational institution by the continued presence of such students. Linwood, supra; Dunn, supra. Plaintiffs in the present case have taken the position that no student may be suspended for any period of time without a prior hearing. We reject that as a rule of law. Whether the suspensions handed out to Lockridge or the Brown children were of such duration that a due process hearing was required at some point is a question not before us, the parties having agreed to withdraw this problem of “line drawing” from the court’s consideration. We therefore find no error in the district court’s refusal to find that plaintiffs’ constitutional rights were violated in this regard. B. VAGUENESS.
7643413-26048	WALD, Circuit Judge: This criminal contempt conviction arose out of a civil class-action suit in which District of Columbia Department of Corrections (“DOC”) employees alleged that they had been victims of sexual harassment and retaliation. Appellant Sylvia Young was convicted of criminal contempt for violating a court order issued in conjunction with the sexual harassment lawsuit that enjoined DOC, together with all its agents and employees, from taking or threatening any retaliatory action against witnesses testifying in the lawsuit. Young was sentenced to 180 days in prison. On appeal, she claims that her conviction should be reversed for two reasons: (1) there was insufficient evidence to convict her because the court order from which the contempt charge arose was not sufficiently clear and specific; and (2) the district court violated her rights under the Due Process Clause and Federal Rule of Criminal Procedure 42(b) by failing to provide her with adequate notice of the charges against her in its show cause order. We find that neither of these two claims has merit and affirm the conviction. Young did not challenge her sentence, and therefore its appropriateness is not at issue in this appeal, I.Background At the time of the events that gave rise to this criminal contempt conviction, appellant Sylvia Young had been employed as a DOC corrections officer for approximately seven years. During her tenure, a number of other DOC employees brought a class action alleging sexual harassment and retaliation. See Bessye Neal v. Margaret Moore, Acting Director, D.C. Dep’t of Corrections, No. 93cv2420 (RCL). On March 15, 1995, the district court judge presiding over the Bessye Neal case issued a preliminary injunction stating that 2. Defendants, together with all of their agents and employees, are enjoined from taking any retaliatory action, or making any threats of retaliatory action, against any person who has been or may be called to testify as a witness in this case, and who is listed on Exhibit A, attached hereto. Appendix (“App.”) A1 (emphasis added). The district court directed DOC to distribute copies of the order to all Department employees, to post the order at Department facilities, and to ensure that the order was read at roll calls. Accordingly, DOC circulated the court order to all its employees, along with a supplementary memorandum explaining the order’s meaning and import. On March 17, 1995, Young (along with all other DOC employees) individually signed a document certifying that she had received and read the March 15 order and that she understood she was bound by it. Like appellant, Yvonne Brown was employed as a corrections officer at DOC. In early 1995, both Brown and appellant were assigned to DOC’s Transportation Unit in Lorton, Virginia. Brown was a dispatcher, and was chiefly responsible for assigning other officers to transport inmates to court or to other appointments. Correctional officers assigned to the Transportation Unit receive and return their equipment at the dispatch office at the beginning and end of each shift. Brown was one' of the witnesses in the Bes-sye Neal case and was therefore listed on Exhibit A to the court’s March 15 order. On March 3, 1995, Brown testified that Lieutenant Laviska Gerald, a friend of Young’s and a supervisor in the unit in which Brown worked, had sexually harassed Brown. Brown and Young worked different shifts, but their times in the office often overlapped. Prior to March 6, 1995, Brown and Young had a “cordial” working relationship. However, on March 6, following Brown’s testimony against Gerald and a subsequent article in the Washington Post detailing that testimony, . the relationship between Young and Brown changed dramatically for the worse. Young began to threaten and verbally harass Brown. On March 6, appellant came to the dispatch office door where Brown was working and said, “I have to be careful about what I say because motherfuckers will have you in court telling shit like they did [about] Gerald.” App. B26. On March 9, appellant approached the dispatch door where Brown was working and said, “I’m not going to talk in here because this telling bitch that got-Gerald in trouble is in here.” App. B27. On March 14, appellant walked up to the dispatch office door and told Brown, “Don’t let me catch you smoking in here because I’m telling because I want to get paid.” App. B73-74. When Brown responded by commenting about Young’s regular paycheck, appellant retorted, “That’s not what I’m talking about. I’m talking about getting paid like you and Wyatt [another witness in the Bes-sy e Neal litigation].” On March 15, the district court issued its injunction forbidding any and all DOC employees or agents from engaging in retaliatory conduct based on the pending sexual harassment suit. Even subsequent to that date, however, Young’s harassing comments and actions continued. On March 22, appellant approached the dispatch office door to turn in her equipment to Brown and said, “Get off your ass and take this equipment before I slap you.” App. B31. On April 21, appellant walked up to the dispatch office door and told Brown, ‘You better get the hell out of here with that cigarette.” Brown countered that appellant was “off duty and you have been off and you don’t have anything to do with what I am doing.” Appellant then used profane language to Brown and, after making a telephone call at the office door, told Brown, “If you have something to say, say it now so I can slap you.” App. B29-30. On May 8, appellant was showing photos to another correctional employee, Corporal Joseph Hill, at the door to the dispatch office. When Hill suggested that Brown view the pictures, Brown declined and appellant said, “No, that bitch is not looking at my pictures.” In an ensuing argument between Brown and Young, appellant said she would “kick [Brown’s] ass” and “blow [her] away.” App. B32. The shift supervisor, Lieutenant Rita Goodall, broke up the argument. As Young was being led outside by Sergeant Curtis, Young stated to Goodall, “Brown acts like she can’t be touched but I don’t care about that suit.” App. C56-57. On May 16, appellant again harassed Brown by dropping rounds of live ammunition on the floor in front of Brown when returning her equipment, laughing, and stating to Brown “that is your problem.” App. B33, C4r-5. Such conduct with weapons or ammunition violated Department of Corrections safety policy. Finally, on July 21, appellant attempted to trip Brown as she was entering one of the trailers that made up the Transportation Unit. App. C16. In addition to these actions directed against Brown, Young also publicly expressed her unhappiness with Brown’s trial testimony. About two weeks after Brown’s testimony, Young told her friend and coworker Larry Wellington that “they didn’t have to do what they did to Gerald.” App. C23. And in April 1995, Young told Theresa Manigault, a training officer, that “somebody needs to talk to Brown because that’s messed up what she’s doing to Gerald.” App. C33. Moreover, during the course of the events leading to the contempt conviction, Young was twice taken aside by other correctional employees who suggested that her conduct was improper in light of the district court’s order. First, in April 1995, when Young expressed her displeasure at Brown’s testimony in the case, Manigault told her “you need to leave that alone. You have no control over that. That’s none of your business.” App. C33. And again later, after the May 8 altercation; Corporal Hill reminded Brown about the district court’s order, stating “you know that the judge’s order said, any type of retaliation against those people on the list.” He warned her that “you need to stop messing with Brown before you get in trouble.” App. B75. Despite these warnings from co-workers, Young’s harassment of Brown continued. Following these events, Brown moved the court to hold Young in contempt of the order, alleging that Young had violated the judge’s order by retaliating against Brown because of Brown’s testimony in the Bessye Neal case. The Office of Personnel Management (“OPM”) investigated Brown’s allegations and concluded that appellant had retaliated against Brown for her testimony. A Special Master appointed by the district court reviewed the report of OPM’s investigation and agreed with the report, finding that there was “ample evidence that Young did subject Brown to a series of abusive and threatening statements and associated behavior beginning after Brown’s testimony in March 1995,” and that there was “probable cause to believe that [appellant’s] remarks and behavior were, the result of retaliatory animus stemming from Brown’s trial testimony.” App. A16. The district court adopted the Special Master’s recommendation and issued an order directing Young to show cause why she should not be held in contempt for violating its March 15 order. After a two-day bench trial, the district court entered a guilty verdict and sentenced Young to 180 days in prison. II. Analysis A. Sufficiency of the Evidence To convict an individual of criminal contempt under 18 U.S.C. § 401(3), the government must prove beyond a reasonable doubt the existence of a court order that is “clear and reasonably specific.” United States v. NYNEX Corp., 8 F.3d 52, 54 (D.C.Cir.1993). The government must also prove that the defendant violated the order, arid that the violation was willful. Id. Appellant argues that the government failed to prove beyond a reasonable doubt that the judge’s order was “clear and unequivocal at the time it [was] issued.” In re Holloway, 995 F.2d 1080, 1082 (D.C.Cir.1993). She argues that the March 15 order was too vague to give a correctional officer with little more than a high school education fair notice of what conduct was prohibited. She claims that the order was ambiguous in two particulars: (1) the order appeared to apply only to supervisory employees; and (2) because the words “retaliatory action” were not specifically defined or explained, it was not clear on its face that the order prohibited the kind of conduct in which appellant engaged. This court reviews the sufficiency of the evidence de novo, viewing the facts in the light most favorable to the government. United States v. Johnson, 952 F.2d 1407, 1409 (D.C.Cir.1992). We apply “the familiar standard for any criminal conviction,” that is, “asking whether a fair-minded and reasonable trier of fact [could] accept the evidence as probative of a defendant’s guilt beyond a reasonable' doubt.” In re Ellenbogen, 72 F.3d 153, 157 (D.C.Cir.1995) (quoting In re Holloway, 995 F.2d 1080, 1082 (D.C.Cir. 1993)) (internal quotation marks omitted). Employing this standard of review here, we conclude that the evidence was sufficient to support the criminal contempt conviction of Young. Contrary to appellant’s contentions, all three requirements of a criminal contempt conviction were satisfied: (1) the court order was clear and reasonably specific; (2) appellant violated the order; and (3) her violation of the order was willful. 1. The March 15 Order Was Clear and Reasonably Specific First, despite appellant’s claims to the contrary, the record shows that she had sufficient notice of the illegality of her conduct in retaliating against Brown for her testimony in the Bessye Neal case. In determining whether an order is sufficiently clear and specific to justify a contempt conviction, we apply an objective standard that takes into account both the language of the order and the objective circumstances surrounding the issuance of the order: “ “Whether an order is clear enough depends on the context in which it is issued and the audience to which it is addressed.’” In re Levine, 27 F.3d 594, 596 (D.C.Cir.1994) (quoting In re Holloway, 995 F.2d 1080, 1082 (D.C.Cir.1993)). The record shows that this order was sufficiently clear. For one thing, appellant’s contention that she believed the order applied only to supervisors and not to a nonsupervisory employee like herself is implausible. The March 15 order-was directed to all employees of the Department of Corrections. The order enjoined the Department of Corrections, “together with all of [its] agents and employees, ... from taking any retaliatory action, or making any threats of retaliatory action” against any protected witness. App. Al. Appellant, like all other employees, was required to sign a form (and' did so on March 17, 1995) indicating that she had .“personally received and read” the March 15 order “which prohibits] retaliation against all witnesses who may be called to testify in the sexual harassment lawsuit,” and that shé “understood] that [she was] bound by the Court’s March 15, 1995' Order and previous orders of the Court ..., and that any violation of these orders may subject [her] to sanctions for criminal contempt including fines and/or imprisonment.” App. All. Additionally, the context in which the order was issued to DOC employees further demonstrates its intended coverage of nonsupervisors; indeed, the record shows that other employees understood that the order so applied to nonsupervisory employees. Aside from the fact that each employee had to sign a form expressing his or her understanding of the order, DOC distributed a supplementary memorandum (addressed to “ALL EMPLOYEES”) explaining that “[ajnyone who violatefd] the order” was subject to discipline, and two different co-workers specifically told appellant she should leave Brown alone because of the court’s order. Similarly implausible is appellant’s claim that she did not understand that her hostile words and behavior toward Brown constituted “retaliatory action” within the meaning of the order. Officer Larry Wellington, a friend of Young’s, testified at the bench trial that he, Young, and other employees “didn’t have an understanding of what retaliation was,” and that “the order was never explained to us in detail on what it meant.” The district court rejected these assertions, “find[ing] that any common sense understanding would lead any person to know that you cannot treat a person differently because of their testimony here in court.” Wherever the outside parameters of contempt for treating a person “differently” might be, we agree with the district court that on the facts of this cáse, a high school educated individual should have had a “common sense understanding” that acts of the sort committed by Young against Brown were “retaliatory” in nature and therefore forbidden by the March 15 order. Indeed, as the government persuasively argued, the key terms in the order (“all ... agents and employees” and “any retaliatory action”) “are not complex legal terms but rather are readily understandable to a high school graduate, such as appellant, who has also taken college level courses.” Brief for the United States, at 17. In sum, the aggregate acts at issue here — overt threats and insults, use of profanity, and hostile actions such as throwing live ammunition near Brown, conduct all of which commenced after, and inferentially as “pay back” for, Brown’s testimony against Gerald— clearly constituted “retaliatory action” within any common-sense definition of that term. 2. Appellant Violated the March 15 Order Second, the record overwhelmingly supports the district court’s finding that appellant violated the order. Appellant and Brown had a normal working relationship prior to March 1995. Immediately after learning of Brown’s March 3 testimony against Gerald, appellant initiated a sequence of hostile actions toward Brown. The first verbal assault took place on March 6, 1995, two days after the Washington Post article detailing Brown’s testimony, and continued with further hostile comments directed at Brown on March 6, March 9, and March 14. Furthermore, following the issuance of the March 15 order (and in defiance of it), Young maintained the pace of her harassing comments and actions. On March 22, appellant came to the dispatch office door to turn in her equipment to Brown and said, “Get off your ass and take this equipment before I slap you.” App. B31. On April 21, appellant made other comments and used profane language in speaking to Brown. App. B29-30. On May 8, appellant declined to show her photos to Brown and stated (in the presence of another correctional employee), “No, that bitch is not looking at my pictures.” During the same incident, appellant said she would “kick [Brown’s] ass” and “blow [her] away.” App. B32. After the shift supervisor broke up the argument, Young stated, “Brown acts like she can’t be touched but I don’t care about that suit.” App. C56-57. And in the May 16 incident, appellant dropped live ammunition on the floor in front of Brown when returning her equipment and stated “that is your problem,” App. B33, C4-5, conduct clearly violative of DOC safety policy. These acts in toto indisputably constituted “retaliatory action” against a protected witness within the meaning of the district court’s order. 3. Appellant’s Violation of the March 15 Order Was Willful Third, appellant’s violation of the order was proven beyond a reasonable doubt to be willful. To establish willfulness, the government must show beyond a reasonable doubt that appellant acted with deliberate or reckless disregard of her obligation under the March 15 order. In re Holloway, 995 F.2d at 1082. There was abundant evidence of such willfulness in this case. Brown repeatedly showed her defiance to the order, both by her numerous comments and actions directed against Brown (detailed above) and by her comments to co-workers about the order. On May 8, appellant stated that she did not care about the lawsuit and threatened to “blow [Brown] away.” Moreover, Young ignored two separate warnings from co-workers that indicated she might be violating the court ■ order. First, in April 1995, when Young expressed her displeasure at Brown’s testimony in the case, co-worker Manigault told her “you need to leave that alone. You have no control over that. That’s none of your business.” App. C33. Second, after the May 8 altercation, Corporal Hill reminded Young about the district court’s order, stating “you know that the judge’s order said, any type of retaliation against those people on the list.” He warned her that “you need to stop messing with Brown before you get in trouble.” App. B75. Despite these warnings, Young’s harassment of Brown continued. Taken in the light most favorable to the government, the facts on this record— demonstrating Young’s egregious and continuing retaliatory actions against Brown, Young’s own statement about her disregard for the court order and lawsuit, and Young’s refusal to listen to co-workers who warned her about violating the order — are more than sufficient to support the district court’s conclusion that appellant’s violation of the order was willful. B. Alleged Due Process and Rule 4.2(b) Violations Appellant next argues that the government failed prior to trial to provide her with notice that one of the essential facts constituting the criminal contempt charged was a July 1995 incident in which she allegedly attempted to trip Brown. She claims that the case must be remanded to the district court to consider whether the remaining factual allegations, absent the “tripping” incident, would justify a finding of guilt beyond a reasonable doubt on the charge of criminal contempt. We review de novo to determine whether procedures comported with the Due Process Clause and with Rule 42(b) of the Federal Rules of Criminal Procedure. At trial, appellant objected to admission of evidence concerning the July 21 tripping incident. She pointed out that the show cause order and attached report had not referred to the incident, but the district court nonetheless overruled her objection and allowed the government witness to testify about the tripping incident. At oral argument in this court, the government conceded that, in light of the inadequate notice given to the defendant, evidence of the tripping incident should not have been considered in the adjudication of the contempt charge. Even if we assume that the district court’s decision to admit evidence of the tripping incident was error, this error is harmless beyond a reasonable doubt and does not merit reversal of the conviction on due process or Rule 42(b) grounds. See, e.g., United States v. Saro, 24 F.3d 283, 287 (D.C.Cir. 1994) (“For most constitutional errors, an appellate court is to reverse if it entertains a ‘reasonable doubt’ about whether the error affected the outcome below, while noneonstitutional errors are reviewed under some laxer standard_”) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)); United States v. Merlos, 984 F.2d 1239, 1242 (D.C.Cir.1993) (“Even an error of constitutional dimension does not require reversal if the court finds the error harmless beyond a reasonable doubt.”). Other evidence presented at trial (including the testimony of numerous witnesses) overwhelmingly supported the allegations laid out in the special master’s report. The May 8 and May 16 incidents alone (both of which were duly included in the notice given appellant) were flagrant instances of retaliatory action taken by Young against Brown, and evidence of the tripping incident was therefore entirely unnecessary for the conviction. Moreover,. the district court found appellant’s trial testimony denying her involvement in the pivotal May 8 and May 16 incidents to be incredible. Thus, we are convinced beyond a reasonable doubt that the single oversight of failing to notify Young that the tripping incident would be addressed at trial was harmless. III. Conclusion For the foregoing reasons, we reject appellant’s dual claims of insufficient evidence and inadequate process and therefore affirm her conviction for criminal contempt. . The district court's judgment against the Department of Corrections in that case was reversed by this court. See Bonds v. District of Columbia, 93 F.3d 801 (D.C.Cir. 1996). . The memorandum, which was dated March 16, 1995, and which accompanied the distribution of the March 15 order to Department of Corrections employees, stated: Anyone who violates this March 15, 1995 Order ... may be found in criminal contempt of court and be fined and/or imprisoned. The court has made it extremely clear that no violations of the spirit or letter of [court orders protecting plaintiffs and witnesses] will be acceptable. The seriousness of this matter cannot be overstated. Sexual harassment and retaliation will not [be] tolerated. Each employee will be held accountable for ensuring that the D.C. Department of Corrections is a workplace that is free from all forms of discrimination, including sexual harassment and retaliation. App. A10. .Copies of the Post article had been left at the Transportation Unit dispatch office on Monday, March 6, 1995, which was Brown's first day back at work after testifying. . The district court announced that it would not impose a sentence of more than 180 days imprisonment if it found Young guilty of criminal contempt, so that a jury trial was not required. . The statute provides that, "[a] court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as — ... (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command." 18 U.S.C. § 401(3). Furthermore, Rule 65(d) of the Federal Rules of Civil Procedure provides that Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; [and] shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained;.... Fed.R.Civ.P. 65(d); see, e.g., United States v. Holtzman, 762 F.2d 720, 726 (9th Cir.1985) ("Ride 65(d) requires the language of injunctions to be reasonably clear so that ordinary persons will know precisely what action is proscribed.”). . The record shows that appellant had completed high school and one semester of college. . App. A10 (emphasis added). Appellant also argues that the court's August 9, 1995 order (which was a final order permanently enjoining employees of DOC from engaging in sexual harassment and retaliation) modified or clarified the March 15 order, proving that the first order had not clearly defined the meaning of "retaliato-xy" action. On August 9, 1995, the district court did issue a final judgment and order in the Bessye Neal litigation, permanently enjoining DOC employees from engaging in sexual harassment and retaliation, but that order specified that the March 15 order was to remain in effect pending resolution of absent class members in the Bessye Neal case. The August 9 order defined “retaliation” as follows: [Tjaking or threatening to take adverse employment actions against a person because he or she has engaged in legally protected activity. (1) Adverse employment actions include any negative change in the terms],] conditions],] or,privileges o[f] employment. It includes, for example, changes in assignments, shifts, or evaluation. It also includes creation of a hostile work environment because an employee has engaged in legally protected activity. App. 141. Although the March 15 preliminary injunction had not included an explicit definition of the meaning of "retaliatory action,” appellant’s argument is without merit. The August 1995 order did not clarify ambiguous language in the March 15 order. Rather, it merely finalized the March 15 order, specifically directing that the March 15 order should remain in effect. App. 149. . Appellant also testified on her own behalf at trial, claiming that she did not understand the meaning of “retaliatory” action as used in the order, and that she did not understand that the order applied to nonsupervisory employees. The trial court found this testimony to be incredible.
1023567-13161	RUTLEDGE, Associate Justice, The singie question presented is whether petitioner filed its claim for refund of taxes the Board of Tax Appeals for the District of Columbia within the ninety-day period specified by the statute for doing so as a condition of recovering taxes paid under protest. The tax imposed was Jt „ , ... the business privilege tax recently m-other litigation here. Petitioner,g assessment for 1937 amounted to $2,-m£; which wag ¡d under t April - góo ’ The ninetieth day of the statutory period fell on Sunday, August 14, 1938. Petitioner, a Maryland corporation having its principal place of business in Baltimore, assumed that its Washington attorney would file the claim for refund or “appeal” in time,’but learned on Friday, August 12, that he had not done so and was away on his vacation. The appeal was prepared on Saturday, August 13, and deposited in the mails at 2:30 o’clock that afternoon. It was received by the Board and filed Monday morning, August IS. The Board held that the claim was filed late and dismissed the appeal. That action is questioned here. We think it was erroneous. The sole question is whether the ninety-day period included Monday, August IS, or ended for all practical purposes at noon of Saturday, August 13. Under the circumstances the practical effect of the decision will he to allow petitioner an extra day or deprive it of a day and a half of the exact statutory period. - As an original matter, considerations of convenience and fairness combine with well-settled rules of statutory construction to dictate exclusion of the final Sunday in calculating the period. That the final day fell on Sunday was largely a matter of accident, probably not contemplated by Congress. Furthermore, that fact created an ambiguity in the legislation which, if resolved against the taxpayer, would be productive of harsh and accidental results. Business practice and accepted legal principle, apart from statute, permit and in some instances require an act to be done on the following Monday where the last day upon which it- should have been done falls on Sunday. That is the common-law rule, and it has become embedded in the habits and customs of the community, both from respect for religious considerations and by long-established legal and commercial tradition. It would be reasonable, therefore, to assume that Congress had the common-law rule in mind when it legislated, and to construe the statute accordingly. Various state courts have interpreted state temporal statutes in this manner. Many states have enacted statutes for computation of time which expressly exclude the final Sunday. The Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, do likewise. Rule 6 (a). And the only decisions of the Supreme Court bearing on the problem which have come to our attention follow the same rule. Street v. United States, 1890, 133 U.S. 299, 10 S.Ct. 309, 33 L.Ed. 631; Monroe Cattle Co. v. Becker, 1893, 147 U.S. 47, 13 S.Ct. 217, 37 L.Ed. 72. It has the support, therefore, of controlling authority, as well as of tradition, fairness and convenience. Furthermore, the principle has received the approval of the Board itself by .adoption in its own rules, applicable of course only to the extent that the contrary rule is not prescribed by statute. But respondent relies upon decisions of inferior federal courts which take the contrary view with respect to calculating the time for taking an appeal in federal judicial proceedings and for performing the acts necessary to an appeal, including Walker v. Hazen, 1937, 67 App.D.C. 188, 90 F.2d 502, certiorari denied, 302 U.S. 723, 58 S.Ct. 44, 82 L.Ed. 559. The reasons given to support this view are varied and highly technical, some of them resting upon doubtful assumptions and contradictory premises. We do not consider it necessary to discuss them fully. It is sufficient for present purposes to note that they applied only to strictly judicial proceedings, not those of administrative bodies ; to the time for taking appeals proper, not to filing an original pleading in a tribunal for trial (cf. notes 3 and 5 supra) ; that none of them involved proceedings of the Board here concerned; that they no longer represent the law applicable to federal judicial proceedings; and that extension of the rule of the Hazen case now for the first time to proceedings of the Board would place it out of step in this respect for the future with the courts and possibly with other administrative agencies. We do not therefore consider that the Hazen case is conclusive upon the question presented here. Nor do we regard it as persuasive, since it no longer represents the law applicable to judicial proceedings and did not. purport to deal with administrative proceedings, such as are involved here. These things being so, it would be unfortunate to extend it to the newly created District Board of Tax Appeals or other administrative agencies. Generally speaking, administrative procedure is, and should be, simpler, less formal and less technical than judicial procedure. Certainly it should not be made more so in the absence of clear and specific mandate from Congres- Prior to creation of the Board, the taxpayer’s remedy was by a suit at law. District of Columbia v. Glass, 1906, 27 App.D.C. 576. The Board was established to furnish a more efficient, speedy and less expensive method for determining the validity of assessments. Adoption of respondent’s view would defeat that purpose to the extent that it would be controlling. Possibly also it might result merely in driving petitioner into court to seek a judicial remedy. It does not appear that time is of such essence in regard to these claims that any rightful interest of the Government will be prejudiced by excluding the final Sunday when the last day falls on Sunday. On the other hand, so doing will make the statutory period operate with greater uniformity both in coordination with the courts and among claimants; accord with settled business practice; and avoid the trap which is inherent in the opposite rule. Wc think also that this construction docs no violence to the intention of Congress, but on the contrary more nearly complies with it than would the opposite one. The decision of the Board is reversed and the case remanded for further proceedings 'not inconsistent with this opinion. Reversed and remanded. STEPHENS, Associate Justice. I think that until the effective date of the Rules of Civil Procedure for the District Courts of the United States, September 16, 1938, Walker v. Hazen, 1937, 67 App.D.C. 188, 90 F.2d 502, necessarily governed the action of the Board in determining whether or not the petition for appeal was filed within the ninety days prescribed by the statute. And I think that, under Walker v. Hazen, the Board properly determined that the petition was filed late. D.C.Code (Supp. V) tit. 20, § 977. Tlie Board was created by Act of August 17, 1937, 50 Stat. 673, as added May 16, 1938, 52 Stat. 370. D.C.Oode (Supp. V) tit. 20, §§ 972 ft. D.C.Code (Supp. V) tit. 20, § 970 if.; Neild and Sauerhoff v. District of Columbia, 71 App.D.C. 306, 110 F.2d 246, decided Jan. 15, 1940; General Electric Supply Corp. v. District of Columbia, 71 App.D.C. 322, 110 F.2d 262, decided Jan. 15, 1940; Colgate Palmolive Peet Co. v. District of Columbia, 71 App.D.C. 324, 110 F.2d 264, decided Jan. 15, 1940. it is not a matter of great moment whether the petition for refund be considered as a “claim” or as an “appeal.” The statute provides that the taxpayer “may within ninety days from the approval of this Act [May 16, 1938] appeal from the imposition of such tax * * Whether the remedy is given in lieu of, alternatively or cumulatively ,(cf. note 13 infra) to the taxpayers' previously ex isting right to sue at law, filing of the petition for the “appeal” is analogous to the filing of a declaration or bill in court rather than to giving notice of appeal from a judgment or decree. In further factual explanation it may be said that the Board’s office was closed at noon of the preceding Saturday, in accordance with custom and its own rules. Of. note 8 infra. See Lamson v. Andrews, 1913, 40 App.D.C. 39; Street v. United States, 1890, 133 U.S. 299, 10 S.Ct. 309, 33 L.Ed. 631; Monroe Cattle Co. v. Becker, 1893, 147 U.S. 47, 13 S.Ct. 217, 37 L.Ed. 72; Pressed Steel Car Co. v. Eastern Ry., 8 Cir., 1903, 121 F. 609. The final Sunday in the statutory period has been excluded where the limitation was on the enforcement of a mechanics’ lien [Mox, Inc., v. Leventhal, 1928, 89 Cal.App. 253, 264 P. 562], filing a claim against an estate [Van Duyn v. Van Duyn, 1924, 129 Wash. 428, 225 P. 444, 227 P. 321], suing under a guest statute [Mansur v. Abraham, La.App., 1935, 159 So. 146, affirmed, 1935, 183 La. 633, 634, 164 So. 421], enforcing a note [Tilden Lumber Co. v. Perino, 1934, 2 Cal.App.2d 133, 37 P.2d 466], filing nomination papers [Manning v. Young, 1933, 210 Wis. 588, 247 N.W. 61], appeal from a local board of tax appeals to the state board of tax appeals [Ettrick v. State Board of Tax Appeals, Sup.Ct., 1934, 172 A. 365, 12 N.J.Misc. 432], action by the common council of a city [Application of Hushion, 1938, 253 App.Div. 376, 2 N.Y.S.2d 256], filing a bill of exceptions [Lakeside Inn Corp. v. Commonwealth, 1922, 134 Va. 696, 114 S.E. 769], and taking an appeal [Simkin v. Cole, Del., 1922, 2 W.W.Harr., 271, 122 A. 191; West v. West, 1898, 20 R.l. 464, 40 A. 6]. Contra: Vailes v. Brown, 1891, 16 Colo. 462, 27 P. 945, 14 L.R.A. 120; Williams v. Lane, 1894, 87 Wis. 152, 58 N.W. 77. E. g., Shea v. San Bernardino, 1936, 7 Cal.2d 688, 62 P.2d 365; Myers v. Harvey, 1924, 39 Idaho 724, 229 P. 1112; Elmore v. Fanning, 1911, 85 Kan. 501, 117 P. 1019, 38 L.R.A.,N.S., 685; Manchester Iron Works v. E. L. Wagner Const. Co., 1937, 341 Mo. 389, 107 S.W.2d 89; Kelly v. Independent Publishing Co., 1912, 45 Mont. 127, 122 P. 735, Ann.Cas.1913D, 1063, 38 L.R.A.,N.S., 1160; Johnston v. New Omaha Thomson-Houston Electric Light Co., 1910, 86 Neb. 165, 125 N.W. 153, 20 Ann.Cas. 1314; Ohio Power Co. v. Davidson, 1934, 49 Ohio App. 184, 195 N.E. 871; State ex rel. Hunzicker v. Pulliam, 1934, 168 Okl. 632, 37 P.2d 417, 96 A.L.R. 1294; Barr v. Lynch, Or., 1939, 97 P.2d 185; Nelson v. Jorgenson, 1926, 66 Utah 360, 242 P. 945. Street v. United States involved a statute authorizing the President to transfer certain army officers to the supernumerary list. The day mentioned in the statute was January 1. That date being Sunday, the President made the transfer on January 2. Among other reasons for holding that he had not exceed’ ed his statutory power, the Court said: “It must be noticed that the 1st day of January was Sunday, — that is, a dies non, and a power that may be exercised up to and including a given day of the month may generally, when that day happens to be Sunday, be exercised on the succeeding day.” 133 U.S. 306, 10 S.Ct. 311, 33 L.Ed. 631. Monroe Cattle Co. v. Becker involved a Texas statute allowing ninety days for a purchaser of school land to make his first payment. If payment was not made within that time, the land was open for another application. The ninety-day period involved in the suit ended on Sunday. Another application was filed the preceding Saturday. The Court said: “As the ninetieth day fell on Sunday, the lands were not open to another application until Monday, the general rule being that, when an act is to be performed within a certain number of days, and the last day falls on Sunday, the person charged with the performance of the act has the following day to comply with his obligation. Endlich, Interpretation of Statutes, § 393; Salter v. Burt, 20 Wend., N.Y., 205, 32 Am.Dec. 530; Hammond v. American Mut. L. Ins. Co., 10 Gray, Mass., 306.” 147 U.S. 55, 56, 13 S.Ct. 220, 37 L.Ed. 72. While these cases did not involve judicial proceedings, neither does the present one. However, they did involve statutes limiting the time for performance of acts vital to the existence and protection of private rights. In these circumstances the sounder analogy is to the rule thus applied to such executive action than to the formerly prevailing, but now repealed, rule of the lower federal courts. “Rule 1 — Business Hours. The office of the Board will be open each business day, except Saturdays, from 9 o’clock á. m., to 4 o’clock p. m. On Saturdays the office will be open from 9 a. m. to 12 o’clock noon. * * * * * “Rule 37 — Computation of time — Sundays and Holidays. Whenever these rules prescribe a time for the performance of any act, Sundays and legal holidays in the District of Columbia shall count just as any other days, except that when the time prescribed for the performance of any act expires on a Sunday or a legal holiday in the District of Columbia, such time shall extend to and include the next succeeding day that is not a Sunday or such a legal holiday; Provided, That when the time for performing any act is prescribed by statute nothing in these rules shall be deemed to be a limitation or extension of the statutory time period.” See the authorities cited in note 10 infra.
4338250-26742	OPINION AND ORDER AFFIRMING BANKRUPTCY COURT’S MARCH 26, 2014 ORDER DISMISSING APPELLANT’S ADVERSARY PROCEEDING NANCY G. EDMUNDS, District Judge. This is an appeal from a March 26, 2014 Bankruptcy Court order dismissing Appellant Gwendolyn Alien-Morris’ (“Alien-Morris”) adversary proceeding against Ap-pellee Nicholas Financial, Inc. The Bankruptcy Court dismissed the adversary proceeding pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the Bankruptcy Court’s order is AFFIRMED. I. Facts This appeal concerns Alien-Morris’ purchase of a car. Alien-Morris purchased the car, a used 2002 Jeep Grand Cherokee Sport (“Jeep”), from Suburban Chrysler Jeep Dodge, Inc. (“Suburban Chrysler”). According to the sales contract, the “total cash price” of the Jeep was $9,881.70. (Compl., Ex. A.) This included a cash price of $9,131.00, a sales tax of $560.70, and a document preparation fee of $190.00. After Alien-Morris made a down payment of $1,152.00, the balance of the purchase price (and some other charges) were financed at an interest rate of 25% for a term of 48 months. Suburban Chrysler then assigned the sales contract to Nicholas Financial. Nicholas Financial is a finance company that principally provides credit to credit-challenged buyers of used cars. (Appellant’s Br. at xv-xvii, Nicholas Financial SEC Filings.) After the buyers execute the contracts with the dealership, Nicholas Financial purchases the contracts at a discounted price depending on the age and creditworthiness of the buyer, and the value of the car. (Id.) Two years after purchasing the Jeep, Alien-Morris filed for Chapter 13 bankruptcy. She listed the Jeep and her lawsuit against Nicholas Financial on her bankruptcy schedules, and also listed Nicholas Financial as holding a lien on the Jeep. (R. at 101; Tr. at 27.) Nicholas Financial responded to Alien-Morris’ bankruptcy in two ways. It first filed a proof of claim for the Jeep. (Compl., Ex. A.) It then filed a motion for relief from the automatic stay for the Jeep. (R. at 101; Tr. at 27.) The Bankruptcy Court later granted Nicholas Financial’s motion for relief from the automatic stay, and the Jeep was sold at an auction. Before the Bankruptcy Court granted Nicholas Financial’s motion for relief from the automatic stay, however, Alien-Morris filed an adversary proceeding against Nicholas Financial. The purpose of the adversary proceeding was to object to Nicholas Financial’s proof of claim and to void its lien on the Jeep. Count I of the complaint seeks to disallow Nicholas Financial’s proof of claim under Michigan’s “wrongful-conduct rule” because the sale of the Jeep violated Michigan’s criminal usury statute, Mich. Comp. Laws § 438.41, and the Michigan Motor Vehicle Sales Finance Act (MVSFA). Mich. Comp. Laws § 492.101 et seq. Count II of the complaint seeks to void Nicholas Financial’s lien on the Jeep under 11 U.S.C. § 506(d). The Bankruptcy Court dismissed Alien-Morris’ adversary proceeding pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court noted that because Nicholas Financial had already sold the Jeep, the entire case may have been moot. (R. at 98; Tr. at 24.) Despite this concern, the Court addressed Alien-Morris’ substantive claims and found that Alien-Morris’ complaint did not plausibly establish a violation of either statute. Accordingly, the Court held that Alien-Morris could not establish a violation of Michigan’s wrongful-conduct rule. Alien-Morris later brought a motion for reconsideration that the Bankruptcy Court denied. (R. at 126.) Alien-Morris now appeals the Bankruptcy Court’s order dismissing her adversary proceeding. II. Standard of Review This Court has jurisdiction to hear appeals from final judgments, orders, and decrees of the bankruptcy court. 28 U.S.C. § 158(a)(1). On appeal, a bankruptcy court’s findings of fact are reviewed for clear error, while its legal conclusions are reviewed de novo. McMillan v. LTV Steel, Inc., 555 F.3d 218, 225 (6th Cir.2009). A ruling on a motion to dismiss a bankruptcy court adversary proceeding is reviewed de novo. In re Grenier, 430 B.R. 446, 449 (E.D.Mich.2010) aff'd, 458 Fed.Appx. 436 (6th Cir.2012). A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. In a light most favorable to the plaintiff, the court must assume that the plaintiffs factual allegations are true and determine whether the complaint states a valid claim for relief. See Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Bower v. Fed. Express Corp., 96 F.3d 200, 203 (6th Cir.1996). To survive a Rule 12(b)(6) motion to dismiss, the complaint’s “[fjactual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and emphasis omitted). See also Ass’n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir.2007). “[T]hat a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of all the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 679, 129 S.Ct. 1937 (internal quotation marks and citation omitted). “Only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. III. Analysis A. Mootness Although neither party addresses the Bankruptcy Court’s mootness concerns at any length in their briefs, this Court is obligated to decide whether the fact that Nicholas Financial has already sold the Jeep has mooted this case. McPherson v. Michigan High Sch. Athlet ic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir.1997) (“The mootness inquiry must be made at every stage of a case.”). Under Article III of the Constitution, federal courts only have jurisdiction to adjudicate actual “cases or controversies,” and this applies to bankruptcy courts as equally as it does to district courts. In re A.P. Liquidating Co., 421 Fed.Appx. 583, 587 (6th Cir.2011) (citing In re Resource Tech. Corp., 624 F.3d 376, 382 (7th Cir.2010)). Because moot cases no longer present an actual case or controversy, “a federal court has no authority to render a decision upon moot questions or to declare rules of law that cannot affect the matter at issue.” United States v. City of Detroit, 401 F.3d 448, 450-51 (6th Cir.2005). A case becomes moot “when — for whatever reason' — -the dispute discontinues or [the court] is no longer able to grant meaningful relief to the prevailing party.” Kentucky v. U.S. ex rel. Hagel, 759 F.3d 588, 595 (6th Cir.2014). However, if the parties have a “concrete interest, however small, in the outcome of the litigation, the case is not moot.” Chafin v. Chafin, — U.S. -, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013). This case is not moot. Allen-Morris’ complaint contains two counts. Count I seeks the disallowance of Nicholas Financial’s proof of claim. Although the car has been sold, Alien-Morris still has a concrete interest in having the proof of claim disallowed. There are many effects of allowing a proof of claim. If the claim is allowed, Nicholas Financial may have a claim for a deficiency balance on the Jeep. Furthermore, an order allowing a proof of claim can be a “final judgment” for res judicata purposes. EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 621, 625 (2d Cir.2007); Siegel v. Fed. Home Loan Mortgage Corp., 143 F.3d 525, 529 (9th Cir.1998); In re Baudoin, 981 F.2d 736, 742 (5th Cir.1993). Alien-Morris has an interest in disallowing the claim to avoid these effects. Count II of the complaint, however, is moot. Because the Jeep has been sold, there is no longer any lien on it for a court to void. Nevertheless, Alien-Morris’ continued interest in Count I gives this Court the power to hear this case. B. Michigan’s Wrongful-Conduct Rule Relying on Michigan’s “wrong: ful-conduct rule,” Alien-Morris argues that Nicholas-Financial’s proof of claim must be disallowed because it is the result of a criminally usurious transaction. The wrongful-conduct rule is an affirmative defense. Indus. Quick Search, Inc. v. Terryn, No. 284163, 2010 WL 481057, at 2 (Mich.Ct.App. Feb. 11, 2010). According to the rule, a plaintiffs claim is barred when it “is based, in whole or in part, on his own illegal conduct.” Orzel by Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208, 212-13 (1995). The rule has two requirements: (1) “the plaintiffs conduct must be prohibited or almost entirely prohibited under a penal or criminal statute”; and (2) “a sufficient causal nexus must exist between the plaintiffs illegal conduct and the plaintiffs asserted damages.” Id. at 214-15. Alien-Morris bases her wrongful-conduct defense on the violation of two statutes: Michigan’s criminal usury statute and the MVSFA. Nicholas Financial argues that if anyone violated these statutes it is Suburban Chrysler, and Alien-Morris cannot bring her defense against Nicholas Financial because a provision in the Truth in- Lending Act (TILA), 15 U.S.C. § 1641(a), preempts the Michigan law that would allow her to do so. It also argues that the sale did not violate either statute. These arguments are addressed below. 1. The Adversary Proceeding Was Brought Against The Proper Party Although Alien-Morris is asserting the wrongful-conduct defense against Nicholas Financial, the actions that she alleges have violated Michigan law were taken by Suburban Chrysler. This is not an issue. Suburban Chrysler assigned the sales contract, which was an installment sales contract, to Nicholas Financial. According to the “Michigan Holder Rule,” “A holder of an installment sale contract is subject to all the claims and defenses of the buyer arising out of the installment transaction ...” Mich. Comp. Laws § 492.114a(b). The sales contract in this case also contained the following statutorily required language: “Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof.” Mich. Comp. Laws § 492.114a(b). As the wrongful-conduct rule is a defense, AIlen-Morris can assert it against the holder of the contract, Nicholas Financial, even though the actions were taken by Suburban Chrysler. Nicholas Financial argues that a provision in TILA preempts the Michigan Holder Rule and that this bars Alien-Morris’ defense. Nicholas-Financial, however, did not present this argument to the Bankruptcy Court and has therefore waived it on appeal. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008) (“[A]n argument not raised before the district court is waived on appeal to this Court.”). Although this is only a “general rule,” In re Morris, 260 F.3d 654, 668 (6th Cir.2001), this is not a case where deviation from this rule is appropriate. Brown v. United States, 545 Fed.Appx. 435, 438 (6th Cir.2013) (“Deviations are permitted in exceptional cases or particular circumstances, or when the rule would produce a plain miscarriage of justice. Such discretion is rarely exercised, and requires a compelling reason to disregard the traditional waiver rule.”) (internal quotations and citations omitted). 2. The Sale of the Jeep Did Not Violate Michigan’s Criminal Usury Statute Alien-Morris first argues that Nicholas Financial’s claim is barred under the wrongful-conduct rule because the sale of the Jeep violated Michigan’s criminal usury statute. Mich. Comp. Laws § 438.41; Scalici v. Bank One, NA, No. 254632, 2005 WL 2291732, at 6 (Mich.Ct.App. Sept. 20, 2005) (barring a plaintiffs claim under the wrongful-conduct rule because the plaintiff violated the criminal usury statute). Under Michigan’s criminal usury statute: A person is guilty of criminal usury when, not being authorized or permitted by law to do so, he knowingly charges, takes or receives any money or other property as interest on the loan or forbearance of any money or other property, at a rate exceeding 25% at simple interest per annum or the equivalent rate for a longer or shorter period. Any person guilty of criminal usury may be imprisoned for a term not to exceed 5 years or fined not more than $10,000.00, or both. Mich. Comp. Laws § 438.41. Alien-Morris argues that the sale of her Jeep violated this statute because it was sold to her at an interest rate exceeding 25% per year. The sales contract indicates that the Jeep was financed at an interest rate of exactly 25% per year. (Compl., Ex. A.) To show that the sale was criminally usurious, Alien-Morris must therefore establish that there was additional interest disguised somewhere else in the transaction. To do this, she relies on the NADA and Kelly Blue Book values of the Jeep to show that it was sold to her at a price above its retail value. (Comply 12.) She argues that this inflated price constitutes the disguised interest that renders the transaction criminally usurious. Taking all of these allegations as true, Alien-Morris has not shown that Suburban Chrysler violated the criminal usury statute by selling the Jeep to her at an inflated price. The Michigan criminal usury statute applies to the loan or forbearance of money. Mich. Comp. Laws § 438.41. It does not apply to the sale of property unless the sale is a merely pretense for a disguised loan. See 44B Am. Jur.2d Interest and Usury § 96. In determining whether what appears to be a sale of property is actually a usurious loan, “the entire transaction must be considered. The substance of the transaction, rather than the form, governs.” Heberling v. Palmer’s Mobile Feed Serv., Inc., 119 Mich.App. 150, 326 N.W.2d 404, 406 (1982). There is no indication in the complaint that the sale of the Jeep was actually a disguised, usurious loan. Overcharging is not in itself usury. “People are free to buy and sell their property, and as a general principle, the seller may exact any price it can obtain, however exorbitant, at least absent fraud, duress, or un-conscionability.” 9 Williston on Contracts § 20:12 (4th ed.) (citations omitted). Even overcharging solely because a product is being sold on credit rather than for cash is not in itself usury. Charging a higher price for credit sales is known as a “time-price differential.” Silver v. Int’l Paper Co., 35 Mich.App. 469, 192 N.W.2d 535, 535 (1971). Michigan courts are clear that so long as the transaction is not a pretext, a seller can establish a time-price differential without implicating the usury statute. Thelen v. Ducharme, 151 Mich.App. 441, 390 N.W.2d 264, 267 (1986) (“Generally, time-price differentials do not come within the provisions of the usury statute.”); Mfrs. Nat. Bank of Detroit v. Burlison, 69 Mich.App. 570, 245 N.W.2d 350, 352 (1976) (“A seller may charge more for the sale of goods or services on credit than for cash sales without rendering the contract usurious.”). This is equally true for the sale of cars. Black v. Contract Purchase Corp., 327 Mich. 636, 42 N.W.2d 768, 772 (1950) (“Exacting a credit price for an automobile in excess of the legal interest on the cash price is not usurious.”). Allen-Morris’ reliance on Sultan v. Cent. Life Ins. Co. of Illinois, 302 Mich. 425, 4 N.W.2d 713 (1942), People v. Coleman, 337 Mich. 247, 59 N.W.2d 276 (1953), and a variety of TILA cases is misplaced. None of these cases hold that a time-price differential is interest for the purpose of Michigan’s criminal usury statute. In Sultan and Coleman, the buyer was forced to purchase goods at a highly inflated price as a precondition for a loan. These sales were “sham[s] to evade the law,” and the seller could not hide the usurious interest behind them. Coleman, 59 N.W.2d at 277. Alien-Morris has not alleged that she was forced to purchase the Jeep at an inflated price to secure a loan so these cases do not support her argument. The TILA cases are also unhelpful. Alien-Morris cites these cases for the proposition that time-price differentials are often considered as interest in financed transactions. See, e.g., Vines v. Hodges, 422 F.Supp. 1292, 1299 (D.D.C.1976). It is true that under TILA a time-price differential is considered to be a “finance charge.” 15 U.S.C. § 1605(a)(1). Alien-Morris, however, does not argue that the sale violated TILA. She argues that it violated Michigan’s criminal usury statute. Under Michigan’s criminal usury statute, a time-price differential in itself is not interest. Black, 42 N.W.2d at 772. Because of this, Alien-Morris has not plead facts plausibly showing that sale of the Jeep was pretext for a loan. Michigan courts typically find pretext where the seller did not disclose that he was charging a higher price for credit or the buyer was not given a choice between a credit-price and a cash-price. See, e.g., Matthews v. Aluminum Acceptance Corp., 1 Mich.App. 570, 137 N.W.2d 280, 284-85 (1965). There are no facts in the complaint that indicate that this occurred. Even if Suburban Chrysler did overcharge for the Jeep, this does not mean that Allen-Morris paid a higher price because she was buying with credit rather than cash. For the sale to be pretextual, Alien-Morris would have to show that Suburban Chrysler charges a credit-price and cash-price for the Jeep and that it did not disclose this to her or give her a choice between the two. She has not done this. Alien-Morris’ main allegation of pretext is that Nicholas Financial has a business model of providing credit to credit-challenged individuals and partners with dealerships to have the sales notes assigned to it at a discount. Although some courts have looked to a close relationship between a seller and a finance company as evidence of pretext, the relationships have been much closer than the one alleged here. See 14 A.L.R.3d 1065 § 14—Close Relations Between Seller and Transferee of Paper. Furthermore, without other evidence of pretext, close relationships alone are insufficient to show that a purported sale was actually a disguised loan. In Black, for example, a buyer bought cars from a dealership, and the dealership sold the sales contracts to a finance company. 42 N.W.2d at 770-71. The dealership and the finance company had a close relationship. The finance company “furnished rate charts, blank forms and credit information, asserted willingness to discount the obligations before the transaction transpired and gave the dealer a rebate.” Id. at 772. The court held that this did not show that the sales were actually usurious loans. “The sales of the vehicles were unquestionably consummated and were the actual basis of the dealings. They were not fictitious creations serving as camouflage.” Id. Here, the sale of the Jeep was also “unquestionably consummated” and “the actual basis of the dealings.” Id. The fact that Nicholas Financial partners with dealerships to purchase discounted sales contracts is not sufficient to establish that the sale of the Jeep was a disguised, usurious loan. 3. The Sale of the Jeep Did Not Violate the MVSFA Alien-Morris alternatively argues that the wrongful-conduct rule bars Nicholas Financial’s claim because the sale violated the MVSFA. Mich. Comp. Laws § 492.118. Alien-Morris has cited no cases where a seller’s violation of the MVSFA implicated the wrongful-conduct rule, and it is unlikely that it would. Under the first requirement of the rule, Alien-Morris must show that the transaction violated a penal or criminal statute and rose to the level of serious misconduct sufficient to bar a cause of action. Orzel, 537 N.W.2d at 214; Scalici 2005 WL 2291732, at *3. “The mere fact that a plaintiff engaged in illegal conduct at the time of his injury does not mean that his claim is automatically barred.” Orzel, 537 N.W.2d at 214. Violating the MVSFA is a criminal act. A licensed installment seller or finance company who “wilfully or intentionally” violates the act commits a misdemeanor. Mich. Comp. Laws § 492.137(b). The punishment is a “fine of not more than $500.00 for the first offense; and for each subsequent offense a like fine and/or suffer imprisonment not to exceed 1 year in the discretion of the court.” Id. Although criminal, a violation of this act likely does not rise to the level of serious misconduct sufficient to bar Nicholas Financial’s claim. This punishment is far less substantial than that described as “serious illegal conduct” in Orzel. 537 N.W.2d at 215. In Orzel, the plaintiffs tort action against a pharmacy for supplying him with prescription painkillers was barred because his actions in acquiring and using the drugs constituted multiple felonies. These felonies could “produce widespread social loss.” Id. The court also noted “the significant degree of harm and punishment associated with such violations.” . Id. at 214. It is unlikely that a violation of the MVSFA constitutes “serious illegal conduct” warranting application of the wrongful-conduct rule. Even if a violation of the MVSFA would bar a plaintiffs recovery under the wrongful-conduct rule, Alien-Morris has not plead sufficient facts to show a violation. The main factual allegations in the complaint are: (1) the purchase price of the Jeep was $9,321.00; (2) the NADA and Kelly Blue Book values for similar cars are at most $7,500.00; (3) the interest rate was 25%; (4) Nicholas Financial’s business model relies on extending credit to credit-challenged individuals; and (5) Nicholas Financial partners with dealerships to acquire sales notes at a discount. (CompLIffl 11-13.) Alien-Morris argues that these facts state a plausible claim that Suburban Chrysler violated the MVSFA provision setting the maximum finance charge for an installment sale at 25%. Mich. Comp. Laws § 492.118. This Court disagrees. The MVSFA does prohibit sellers from charging “a finance charge on any installment sales contract covering the retail sale of a motor vehicle” exceeding 25% per year. Mich. Comp. Laws §§ 492.118, 445.1854. However, just as under the criminal usury statute, overcharging for the Jeep in itself is not a violation of this provision. The MVSFA sets a limit on the maximum “finance charge” allowed in an installment sale of an automobile. The term “finance charge” is given the definition that it has under TILA. Mich. Comp. Laws § 492.102. TILA defines “finance charge” as: The sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit. The finance charge does not include charges of a type payable in a comparable cash transaction. 15 U.S.C.A. § 1605. The Sixth Circuit has interpreted this to mean that a finance charge is “an increase in the base price of an automobile that is not charged to a cash customer, but is charged to a credit customer, solely because he is a credit customer ....” Cornist v. B.J.T. Auto Sales, Inc., 272 F.3d 322, 327 (6th Cir.2001). To show that a higher price is a finance charge, “the plaintiff must demonstrate a ‘causal connection’ between the higher price and the extension of credit.” Id. Although Alien-Morris has alleged that she was overcharged for the Jeep, that alone is insufficient to show a “causal connection between the higher price and the extension of credit.” Id. Alien-Morris must show that the higher price was a finance charge imposed solely because she was a credit customer. The complaint contains no facts that plausibly demonstrate this. A TILA case from the Second Circuit is persuasive. Poulin v. Balise Auto Sales, Inc., 647 F.3d 36 (2d Cir.2011). In Poulin, the court affirmed a dismissal of a complaint that a dealership was charging undisclosed finance charges in violation of TILA because the complaint did not allege sufficient facts showing the existence of finance charges. Id. at 40. The court stated: [T]he complaint in this case does not allege that subprime credit customers pay higher purchase prices than non-subprime credit customers for comparable merchandise. If the book values in the NADA Guide are a fair proxy for the purchased cars’ market values, plaintiffs have alleged a bad bargain. But the complaint provides no facts from which to infer that that bad bargain stemmed from an undisclosed finance charge. The complaint contains no information about the price charged to cash purchasers of automobiles of the same vintage as those purchased by plaintiffs. The pleaded facts may portray the use of different prices, but the difference is measured by the age of the cars, not the customers’ credit status. Because the complaint fails to allege purchase price discrimination based on credit status, it does not state an actionable claim. Id. Plaintiffs complaint fails to state a claim for similar reasons. The complaint does not state that Suburban Chrysler sells cars to customers at one price for cash but at a higher price for credit. Nor are there are any facts indicating that Alien-Morris was charged $9321.00 solely because she was a credit customer. The fact that Nicholas Financial’s business model relies on extending credit to credit-challenged individuals or that it partners with dealerships to have sales contracts assigned to it at discount prices does not plausibly show that Alien-Morris was overcharged for the Jeep solely because she was buying on credit. The facts in the eofnplaint, taken as true, do not “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Alien-Morris’ complaint was properly dismissed. IV. Conclusion For the foregoing reasons, the Bankruptcy Court’s order is AFFIRMED. . The complaint states that the purchase price of the Jeep was $9,321.00. (Compl.t 11.) This number is the sum of the cash price and the document preparation fee. . Although this information was not contained in the complaint, this Court can take judicial notice of publically available information when deciding a motion brought under Federal Rule of Civil Procedure 12(b)(6). New England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir.2003) (“A court that is ruling on a Rule 12(b)(6) motion may consider materials in addition to the complaint if such materials are public records or are otherwise appropriate for the taking of judicial notice.''). . The Bankruptcy Court noted this in its opinion denying Alien-Morris’ motion for reconsideration. (R. at 128.)
3817005-22577	OPINION AND ORDER DENYING PLAINTIFFS’ AMENDED MOTION TO REMAND DAVID M. LAWSON, District Judge. The plaintiffs sued the defendants in the Oakland County, Michigan circuit court alleging that the defendants are either the alter egos or fraudulent transferees of assets of persons and entities against which the plaintiffs have a substantial money judgment. The defendants in this case removed it to this Court under 28 U.S.C. § 1334(b) on the ground that the lawsuit relates to a pending bankruptcy filed by one of the plaintiffs’ judgment debtors. Now before the Court is a motion by the plaintiffs to remand the ease. The plaintiffs contend alternatively that this Court lacks subject matter jurisdiction, or that the Court must or ought to abstain and defer to the state court. The defendants have filed a response, and the plaintiffs replied. The Court has reviewed the pleadings and motion papers and finds that the papers adequately set forth the relevant facts and law and oral argument will not aid in the disposition of the motion. Therefore, it is ORDERED that the motion be decided on the papers submitted. See E.D. Mich. LR 7.1(f)(2). The hearing previously scheduled for November 14, 2012 is CANCELLED. For the reasons explained below, the Court finds that the present lawsuit relates to the pending bankruptcy of Miller Parking Company, LLC, because the plaintiffs seek to recover the same funds sought in a separate ease by the bankruptcy trustee. The case is not subject to mandatory abstention under 28 U.S.C. § 1334(c)(2), and the proper exercise of discretion would not lead to permissive abstention. Therefore, the motion to remand will be denied. I. The object of this lawsuit is to pierce corporate veils and set aside fraudulent transfers in order to permit the plaintiffs to collect on a $3 million judgment obtained in state court. One of the judgment debtors is Miller Parking Company, LLC, which is sometimes referred to as Miller Parking Detroit. That entity filed bankruptcy. Also pending before this Court is a case involving the same facts and parties, Lim v. Miller Parking, docket no. 11-14422, in which the bankruptcy trustee is seeking to reach the same assets as the present plaintiffs. The series of events fomenting both eases began in 2004 when plaintiff Alan Ackerman and his companies sued Bruce Miller and his companies over a business dispute. Ackerman is the lead plaintiff in the present action. He is a minority shareholder in plaintiff CH Holding (which owns three-quarters of plaintiff CH/ Brand), and a former business partner of Bruce Miller, who owned the now bankrupt Miller Parking Company, LLC (Miller Parking Detroit). Bruce Miller’s son, James Miller, owns defendant Miller Parking Services, LLC, which occupies and operates a parking lot at 326 E. Lafayette Street in Detroit. Miller Parking Services, LLC (MPS) allegedly acquired the assets of the bankrupt Miller Parking Detroit. Plaintiff CH Holding owns the Lafayette Street lot. James Miller also was the sole director of Miller Parking Company (Miller Parking Chicago), another Miller family parking business that operated in Chicago. The Weinstein and Stein defendants are Bruce Miller’s children and grandchildren, who together with James Miller’s personal and family trusts owned all of the shares in Miller Parking Chicago. Ackerman initiated the 2004 state court lawsuit following a breakdown in a prior business relationship between CH Holding and Miller Parking Detroit. In February 2009, while the Oakland County ease was pending, an unaffiliated entity that held a long-term lease on Miller Parking Chicago’s major capital asset, the Bismark parking deck in Chicago, exercised its option to buy the deck. That left Miller Parking Chicago with no ongoing operations or major assets other than cash from the sale. On June 30, 2009, Ackerman won a judgment in the Oakland County case for around $3 million. In September 2009, James Miller distributed $7 million in cash held by Miller Parking Chicago to its shareholders (who include the defendants in the present case). Not long after, James dissolved the Chicago company. On October 7, 2009, Miller Parking Detroit filed for bankruptcy. Two years later, on October 7, 2011, the bankruptcy trustee for Miller Parking Detroit, K. Jin Lim, sued James Miller, Miller Parking Chicago, and its former shareholders, naming all of the same defendants that Ackerman named in the present action, except MPS. The trustee alleges that James and Bruce Miller comingled the affairs of their two companies and carried out a fraudulent scheme to funnel assets from Miller Parking Detroit to Miller Parking Chicago, in order to evade creditor claims against Miller Parking Detroit. The trustee’s suit asserts claims for: (1) preference to recover “loan payments” made by the Detroit company to the Chicago company on a fake promissory note; (2) fraudulent transfers based on other unidentified inter-company payments; (3) fraudulent transfers for any payments made by the Detroit company to any defendant; (4) disgorgement; (5) substantive consolidation; (6) alter ego; and (7) breach of fiduciary duty by James Miller. On January 19, 2012, Ackerman filed the complaint in the present action in Oakland County, Michigan circuit court. Two of the Weinstein defendants filed their notice of removal on February 13, 2012, in which all of the defendants eventually joined. Ackerman’s claims fall into three categories: (1) Counts I-VTI, X, and XI, against James Miller, Miller Parking Chicago, and the shareholders of Miller Parking Chicago, assert various theories including alter ego, fraudulent transfer, and unjust enrichment based on alleged comingling and transfers of assets from Miller Parking Detroit to Miller Parking Chicago; (2) Counts VIH and IX, against James Miller, allege conversion of parking revenues from the Lafayette Street parking lot, prior to December 2009; and (3) Counts XII-XIV, against James Miller and MPS, allege conversion, trespass, and injunctive relief relating to operation of the lot and the alleged refusal by MPS to surrender the lot after Ackerman terminated the agreement. The current claims against MPS do not have any apparent relation to the fraudulent transfers or the earlier recovery by CH Holding and Ackerman against Miller Parking Detroit. As mentioned above, MPS acquired the remaining assets of Miller Parking Detroit after the bankruptcy, and Ackerman now alleges that the new company has continued to occupy and operate the Lafayette Street lot despite the fact that in late 2011, CH Holding terminated the agreement under which MPS was operating. The claims against Miller Parking Chicago, James Miller, and the Miller children and grandchildren are identical to those brought by the bankruptcy trustee in the parallel action. Ackerman timely filed a motion to remand the case to the Oakland County circuit court, followed by an amended motion to remand. II. The defendants removed the present case to this Court under 28 U.S.C. § 1334(b), which states: Except as provided in subsection (e)(2), and notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11. (Emphasis added). Ackerman’s argument boils down to the idea that the present action has no legal relation to the bankruptcy case simply because Ackerman did not name Bruce Miller or Miller Parking Detroit as parties. He says that none of the claims are based on provisions of the bankruptcy code, and thus none “arise under” Title 11. He argues that the case does not “arise in” the bankruptcy action, because all of the claims asserted could exist in a lawsuit separate from any action for bankruptcy, and none are administrative proceedings that depend on the context of a bankruptcy proceeding in order to survive. He also argues that the case is not “related to” a bankruptcy action under the rule of Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.1985), because he seeks recovery only from non-debtor parties, and because “common issues of fact” alone do not suffice to support “related to” jurisdiction. The Court disagrees. The Court has original jurisdiction under the Bankruptcy Code over all of Ackerman’s claims against Miller Parking Chicago and its shareholders, because all of those claims “relate to” the bankruptcy of Miller Parking Detroit, and because any judgment against the defendants would impact upon the handling and administration of the bankruptcy estate. In bankruptcy matters, the district court’s jurisdiction over a case involving nondebtors is determined solely by 28 U.S.C. § 1334(b). In re Wolverine Radio Co., 930 F.2d 1132, 1140 (6th Cir.1991). “For the purpose of determining whether a particular matter falls within bankruptcy jurisdiction, it is not necessary to distinguish between ... proceedings ‘arising under,’ ‘arising in,’ and ‘related to’ a case under title 11.... [I]t is necessary only to determine whether a matter is at least ‘related to’ the bankruptcy.” Wolverine Radio, 930 F.2d at 1142. The Sixth Circuit has “adopted an expansive definition of a related proceeding under section 1334(b),” first set forth by the Third Circuit in In re Pacor, Inc.: The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Id. at 1142 (quoting Pacor, 743 F.2d 984, 994 (3d Cir.1984)). Even where a claim is not “property of’ the bankruptcy estate, a case based on that claim may still be “related to” the bankruptcy, where the trustee and another claimant both seek to recover “the same limited pool of money, in the possession of the same defendants, as a result of the same acts, performed by the same individuals, as part of the same conspiracy.” Fisher v. Apostolou, 155 F.3d 876, 882 (7th Cir.1998). Contrary to Ackerman’s suggestions that the two cases involve only “common issues of fact,” Ackerman seeks to recover the exact same assets of Miller Parking Detroit that the trustee also seeks in his action. If Ackerman succeeds, then he would do exactly what the bankruptcy code prohibits: subverting the equitable distribution of the bankrupt’s assets among all of its creditors. “To allow a creditor of the bankrupt to pursue his remedy against third parties on a fraudulent transfer theory would undermine the Bankruptcy Code policy of equitable distribution by allowing the creditor ‘to push its way to the front of the line of creditors.’ ” N.L.R.B. v. Martin Arsham Sewing Co., 873 F.2d 884, 888 (6th Cir.1989). Any recovery by Ackerman would reduce the assets available to the estate and would interfere with the orderly distribution of assets to all creditors, which would defeat the purpose of the bankruptcy action. If the trustee succeeds, he will recover those same assets, but for the benefit all of the creditors of Miller Parking Detroit. In fact, Ackerman’s claim to those assets likely is barred by the bankruptcy filing. “As a result of the filing of the corporate bankruptcy case[ ], [a judgment creditor] no longer has standing to pursue the recovery of the value of corporate assets for his sole benefit. A single creditor may not maintain an action on its own behalf if that creditor shares an injury common to all creditors and has been injured only in an incidental manner.” In re O’Donnell, 326 B.R. 901, at 4 (6th Cir. BAP 2005)(unpublished table decision). Ackerman’s only alleged injury is that assets of Miller Parking Detroit were wrongly taken and given to Miller Parking Chicago, and that injury decreased the value of the estate available to all creditors, not just Ackerman. Ackerman has shown nothing to suggest that he suffered anything more than the injury common to all creditors. Ackerman wants to pursue a fraudulent transfer claim that only the trustee has the right to bring, and allowing his claim to continue would disrupt the bankruptcy process. Ackerman cites no relevant authority holding that the Court lacks jurisdiction over his claims or that he has any right to pursue his claims outside the context of the bankruptcy proceeding. Ackerman’s arguments to the contrary are not supported by the facts he himself has pleaded. Initially, Ackerman argues that the removing defendants “confuse” the identities of the Detroit and Chicago companies and that it was Miller Parking Chicago, not Miller Parking Detroit, that carried out the fraudulent transfers. It is true that Miller Parking Chicago transferred its assets to its shareholders, but there also must have been an asset transfer by Miller Detroit to Miller Chicago for any of the fraudulent transfer claims to make sense. Neither Ackerman nor the trustee has named Miller Parking Detroit or its owner Bruce Miller as a defendant in this case. Miller Parking Chicago, which both Ackerman and the trustee have sued, is not bankrupt and owes no debt to Ackerman, and Ackerman holds no judgment against it. Ackerman never had any business relationship with the Chicago company, and neither company owned any part of the other. None of the shareholders in Miller Parking Chicago owned any part of the Detroit company. To recover, both Ackerman and the trustee must show a link between Miller Detroit and Miller Chicago through which the former’s assets were transferred to the latter. Ackerman also relies on several Michigan state court cases that he claims bar the trustee’s suit, but which in fact have no bearing on his case or the case of the trustee. Those cases essentially prohibit an entity’s legal successor — e.g. a company’s bankruptcy trustee — from piercing its own corporate veil. See RDM Holdings, LTD v. Continental Plastics Co., 281 Mich.App. 678, 704-05, 762 N.W.2d 529, 545-46 (2008). But although Michigan law does provide that a bankruptcy trustee cannot sue the debtor corporation on an alter ego theory, neither Ackerman nor the trustee have sued any debtor or any shareholder of a debtor or bankrupt company. Neither have named Miller Parking Detroit or its owner Bruce Miller as a defendant. Because Ackerman has only sued Miller Parking Chicago and its shareholders, not Miller Parking Detroit, the present action does not involve any claim that would require piercing the veil of the bankrupt Detroit company. As the court explained in the principal case that Ackerman cites, Woodridge Hills Association v. Williams: RDM Holdings makes abundantly clear that a debtor corporation’s claim predicated on the theory that a corporate veil should be pierced under Michigan law cannot be sustained in a Chapter 7 bankruptcy case against the debtor corporation’s shareholder. This is because Michigan law only allows application of an alter-ego or piercing-the-corporate-veil theory when pursued by a third party, e.g., creditors, and the theories are not employed to permit a company to pierce its own veil in order to sue its own shareholders. In other words, the bankruptcy trustee, standing in the shoes of [the debtor company], could not sue [the debtor company’s shareholder] under an alter-ego or piereing-the-corporate-veil theory. Woodridge Hills, No. 300193, 2011 WL 6378813, at 6 (Mich.Ct.App. Dec. 20, 2011) (emphasis added). Ackerman, just like the trustee, seeks to pierce the veil not of his debtor, Miller Parking Detroit, but of a separate, third-party corporation, Miller Parking Chicago, which he alleges wrongly received and then distributed the assets of the debtor. The alter ego claims against Miller Parking Chicago are only ancillary to the central claim that when the Chicago company made a facially proper and reasonable distribution of its assets, it was not in fact distributing its own assets but those of the debtor, Miller Parking Detroit, that had been fraudulently transferred to it. No authority prevents the trustee, standing in the shoes of a debtor company, from seeking to pierce the veil of a completely separate corporation and recover for the benefit of the debtor’s estate and its creditors assets that the trustee maintains were given away by the debtor and then distributed to the other company’s shareholders. In all events, the claims against Miller Parking Chicago and its shareholders “relate to” the bankruptcy, and therefore the complaint falls within the purview of 28 U.S.C. § 1334(b). Therefore, the Court has subject matter jurisdiction over this dispute. But Ackerman also contends that abstention rules prohibit the Court from proceeding. He points to 28 U.S.C. § 1334(c), which discusses mandatory and permissive abstention. That statute reads: (1) ... [Njothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. (2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. 28 U.S.C. § 1334(c)(1)-(2). Section 1 of the statute permits abstention, while section 2 mandates it. Section 2 applies only to cases that are “related to ... but not arising” in or under Title 11. In order for mandatory abstention to apply, a proceeding must: (1) be based on a state law claim or cause of action; (2) lack a federal jurisdictional basis absent the bankruptcy; (3) be commenced in a state forum of appropriate jurisdiction; (4) be capable of timely adjudication; and (5) be a non-core proceeding. In re Dow Corning Corp., 86 F.3d 482, 497 (6th Cir.1996). The defendants argue that the present lawsuit is a core proceeding because it is a proceeding to set aside a fraudulent transfer of property belonging to the Miller Parking Detroit bankruptcy estate. The Court agrees. According to 28 U.S.C. § 157(b), “[c]ore proceedings include ... matters concerning the administration of the estate; ... orders to turn over property of the estate; ... [and] proceedings to determine, avoid, or recover fraudulent conveyances. 28 U.S.C. § 157(b)(2)(A), (E), (H). An action on state law claims is a core proceeding where it “arises from the efforts of officers of the [bankruptcy] estate to administer the estate and collect its assets and therefore impacts the handling and administration of the estate.” In re Lowenbraun, 453 F.3d 314, 321 (6th Cir.2006). The claims against Miller Parking Chicago and its shareholders are solely designed to recover assets which both Ackerman and the trustee contend were the rightful property of Miller Parking Detroit and which therefore now belong to the bankruptcy estate and ought to be available to satisfy the claims of its creditors, including judgment creditor Ackerman. Mandatory abstention does not apply. In advocating for permissive abstention, Ackerman contends that litigating the claims in state court would not interfere with the administration of the bankruptcy estate, and any relation of the present case with the trustee’s action would be “marginal at best.” The Court cannot accept that view of the two lawsuits. Although it may be true that Ackerman’s claims in Counts XII through XIV against James Miller and MPS, for conversion, trespass, and injunctive relief relating to operation of the Lafayette Street lot may not affect the administration of the bankruptcy estate, the main thrust of the complaint in this case is based on the alleged “unity of interest” between Bruce and James Miller and their respective companies, which allowed them to place the assets of Miller Parking Detroit beyond the reach of its creditors. Those claims impact the purposes and goals of Title 11. Federal courts ought not abstain from hearing such claims. III. The Court concludes that it has subject matter jurisdiction over the claims set out in the complaint, and that jurisdiction is not curtailed by either mandatory or permissive abstention. Accordingly, it is ORDERED that the plaintiffs’ motion to remand [dkt. # 9] is DENIED. It is further ORDERED that the motion hearing scheduled for November 14, 2012 is CANCELLED. ORDER DENYING MOTION FOR RECONSIDERATION The matter is before the Court on the plaintiffs’ motion for reconsideration of the Court’s November 6, 2012 order denying the plaintiffs’ motion to remand. The plaintiffs assert that the Court lacks jurisdiction over the case and that the bankruptcy trustee has no standing to pursue the “alter ego ” claim raised in the complaint. However, all of the issues that the plaintiffs raise in their motion for reconsideration were thoroughly briefed and argued on the motion to remand and were resolved by the Court in its prior order. The plaintiff urges several cases upon the Court in its motion for reconsideration, but as with the related authorities which the Court addressed in its order on the motion to remand, these cases are either inapposite, or plaintiff has misread their holdings. The Court therefore will deny the motion. Motions for reconsideration may be granted pursuant to E.D. Mich. LR 7.1(h)(1) when the moving party shows (1) a “palpable defect,” (2) that misled the court and the parties, and (3) that correcting the defect will result in a different disposition of the case. E.D. Mich. LR 7.1(h)(3). A “palpable defect” is a defect which is obvious, clear, unmistakable, manifest, or plain. Mich. Dep’t of Treasury v. Michalec, 181 F.Supp.2d 731, 734 (E.D.Mich.2002) (citations omitted). “Generally ... the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court.” E.D. Mich. LR 7.1(h)(3).
4273018-16517	LINDBERG, District Judge. Plaintiff, Inland Motor Freight, Inc., hereinafter referred to as Inland, seeks to set aside a cease and desist order of the Interstate Commerce Commission directing Inland not to perform such operations as were found by the Commission to be beyond the scope of Inland’s Certificate MC-59077. The controversy developed with the filing of a complaint on September 29, 1953 by Portland-Pendleton Motor Transportation Company and Consolidated Freightways, Inc. against Inland under Section 204 of the Interstate Commerce Act, 49 U.S.C.A. § 304, charging Inland with engaging in unauthorized transportation. The proceedings thus instituted were conducted under modified procedure. Joint Board No. 45, the matter' having been referred to it by the Commission, on June 28, 1954 entered a report and order in which it found that Inland lacked authority to engage in the transportation complained of and recommended that a cease and desist order be entered against it, and thereafter on March 9, 1955 Division 5 of the Commission entered a report and order wherein it likewise found that Inland had been engaging in transportation in excess of its authority and ordered it to cease and desist therefrom. Inland filed a “Petition for Reconsideration” and an “Alternate Petition for Rehearing”, both of which were denied by order dated July 18, 1955 although before entering said order the Commission, by Division 5, on July 14, 1955, apparently for the purpose of clarification, modified its findings in its report of March 9, 1955. On August 31, 1955 Inland instituted this proceeding to set aside the orders of the Commission, alleging “That the interpretation by the Interstate Commerce Commission in its several Orders of the authority conferred by the Certificate of Public Convenience and Necessity upon the plaintiff is in error as a matter of law and that the denial of plaintiff’s Petition for Rehearing is in violation of the due process clause of the Constitution of the United States.” In presenting its case before us the plaintiff, Inland contends that the order of the Interstate Commerce Commission should be set aside because: (1) The commission has erroneously construed Inland’s Certificate of Public Convenience and Necessity, particularly misconstruing the meaning of the restriction involved and erred in holding that it may not transport (a) explosives, and (b) other commodities between Seattle, Washington and the Umatilla Ordnance Munitions Depot in northeastern Oregon; (2) It is void in that it rests its finding in part on evidence not in the record; (3) A fair hearing has been denied by the refusal to grant a rehearing as required by Section 7(d) of the Admin istrative Procedure Act, 5 U.S.C.A. § 1006(d); (4) The order as modified is ambiguous and confusing and does, not inform plaintiff what acts in issue it may perform and what acts in issue it must refrain from performing. It would appear that plaintiff’s contentions 2 and 3 are alternative and based upon the same grounds. Plaintiff relies principally upon its first contention of error. An admittedly true copy of the Certificate is set out as Exhibit “A” attached to the Petition. It consists of eight sheets and is too lengthy to set forth herein in full. The following is a brief but sufficient description of the pertinent parts. Under the heading “Regular Routes” appearing on the first page of the Certificate there are set forth on the first four sheets of the Certificate thirty-four individually-described routes. The first is between specified points in Idaho; the second through the twenty-first from and to specified points in the State of Washington; the twenty-second through the twenty-fourth between Spokane, Washington and specified points in Idaho; the twenty-fifth between Portland, Oregon and Lewiston, Idaho; the twenty-sixth between Seattle, Washington and the Junction of U. S. Highway 410 and 730 (which route meets the twenty-fifth route at said junction); the twenty-seventh route between Portland, Oregon and Buena, Washington; the twenty-eighth, twenty-ninth and thirty-first between named points in Washington and named points in Idaho, the thirtieth, thirty-second, thirty-third and thirty-fourth between named points in Idaho. The two routes upon which Inland relies to perform the service here in question are the twenty-fifth and twenty-sixth listed routes (hereinafter • respectively referred to as the Portland-Lewis-ton route and the Seattle-Junction route) are set forth in the Certificate as follows: Between Portland, Oregon and Lewis-ton, Idaho: From Portland over U. S. Highway 30 to Umatilla, Oregon, thence over U. S. Highway 730 to junction U. S. Highway 410, and thence over U. S. Highway 410 to Lewiston, and return over the same route. Between Seattle, Washington, and the junction of U. S.- Highway 410 and 730: From Seattle over Alternate U. S. Highway 10 via Renton, Washington to junction U. S. Highway 10, thence over U. S. Highway 97 to Yakima, Washington,- and thence over U. S. Highway 410 to junction U. S. Highway 730, and return over the same route. Following the thirty-four routes above referred to there appears the following restriction or limitation: “Service is authorized to and from, intermediate points on the above-specified routes, as follows: those in Oregon restricted to pick-up only on eastbound traffic, and delivery only on westbound traffic; those on U. S. Highway 195 between Spokane and Rosalia, Washington, including Ros-alia, restricted to traffic moving to or from points south of Rosalia; Toppenish, Washington, and those on U. S. Highway 99, 10, 97, 410 and Alternate U. S. Highway 10 between Tacoma, Washington, and Prosser, Washington, restricted to traffic moving to or from points east of Prosser; those on Washington Highway 2H between Spokane and junction U. S. Highway 10 (near the Washington-Idaho State line) restricted to traffic moving to or from points other than those on the indicated portion of Washington Highway 2H; all other intermediate points on the above-specified routes unrestricted.” (Italics supplied.) In interpreting the limitation, particularly the underscored portion, the Commission held that the restriction prohibited the transportation complained of and ordered its discontinuance. In its report and order the Commission, Division 5, stated, in part: “Its (Inland’s) contention that the words ‘those in Oregon’ in the restriction clause in question refer only to routes within that State is wholly untenable. The restriction in question is against certain service at points on Oregon routes previously described in that certificate, irrespective of whether the movement is from or to a point or over a route within or without that State. The restriction is indented on the certificate in a manner to bring it flush with the preceding ‘between’ paragraphs and clearly applies to all of them. It is significant also that the grants in question as well as the restriction are to be found in substantially the same form in compliance orders issued to the defendant as a result of ‘grandfather’ proceedings as early as 1939. We think it is plain that the operations between the Puget Sound area and points in northeast Oregon which the defendant admits (or does not deny) having conducted are being conducted in violation of the terms of its certificate. The defendant’s authority to serve intermediate points on the routes in Oregon described in its certificate is subject to a restriction against delivery of eastbound or pickup of westbound traffic. Defendant’s theory seems to be that after completion of an authorized eastbound movement from Seattle to the junction of highways 410 and 730, the movement from the junction to destination became an authorized westbound operation, but no combination of routes, circuitous or direct, can convert an eastbound movement (one whose destination lies far to the east of its origin) into a westbound movement, and the reverse is no less true. The intent of defendant’s certificate is clear and cannot be avoided by a separation of the two routes. They were granted iri one proceeding as a part of one restricted authority and have never stood as separate grants. On consideration of the record as a whole, we conclude that the findings of the joint board with respect to the alleged Seattle-eastern Oregon movements are proper and should be affirmed.” Plaintiff before us advances the same argument and authority urged upon the Commission in support of its petition for reconsideration. Its position is that the Certificate under consideration contains no applicable restriction on the routes used in the transportation involved and that by “tacking” of the two routes, namely the Portland-Lewis-ton and Seattle-Junction routes, it is authorized to perform through service. Plaintiff cites M. I. O’Boyle & Son, Inc., v. I. C. C., 92 U.S.App.D.C. 383, 206 F.2d 473 and Century-Matthews Motor Freight v. Thrun, 8 Cir., 173 F.2d 454. It is clear from these cases that “tacking” is permissible when none of the several routes combined to accomplish the through service are subject to restrictions as to the service proposed. However, if either of the routes used by plaintiff carry restrictions which would limit service on either route the restrictions would not be eliminated by a combination of the two. The question thus becomes one of interpretation of the restrictions above set forth as applied to either or both of the two routes. In challenging the Commission’s interpretation of Inland’s Certificate, counsel for plaintiff cites as authority for a liberal interpretation of the restriction paragraph the rules of statutory construction as applied to provisos appearing in statutes. 50 Am.Jur. 458, § 437; 59 C.J. 1088, § 639; 82 C.J.S., Statutes, § 381; City of Seattle v. Western Union Tel. Co., 21 Wash.2d 838, 153 P.2d 859. We take no exception to the rule of law set forth in the foregoing citations but do not find it applicable. It is not our function to make a de novo construction of the Certificate of Inland as does a court in the usual case when called upon to define the scope or meaning of a proviso contained in a statute or ordinance in controversy. The Commission’s construction of its Certificate, unless clearly wrong or arbitrary, is to be accepted by the courts. United Truck Lines v. I. C. C., 9 Cir., 189 F.2d 816; Converse v. United States, D.C.N.D.Cal., 109 F.Supp. 807; Malone Freight Lines, Inc., v. United States, D.C.N.D.Ala., 107 F.Supp. 946, affirmed 344 U.S. 925, 73 S.Ct. 497, 97 L.Ed. 712; Adirondack Transit Lines, Inc., v. U. S., D.C.S.D.N.Y., 59 F.Supp. 503, affirmed 324 U.S. 824, 65 S.Ct. 688, 89 L.Ed. 1393. Can it be found that the Commission’s construction of the restriction contained in Inland’s certificate is clearly wrong and arbitrary? The particular language subject to interpretation as it appears in the limitation already set out above is the following: “Service is authorized to and from intermediate points on the above-specified routes, as follows: those in Oregon restricted to pick-up only on eastbound traffic, and delivery only on westbound traffic; all other intermediate points on the above-specified routes unrestricted (Italics supplied.) Plaintiff’s contention is that there is only one route in Oregon set forth in the Certificate ahead of the restricting clause, and that route is a portion of the route described as “between Portland, Oregon and Lewiston, Idaho,” and which described as an Oregon route only would be as follows: “From Portland over U. S. Highway 30 to Umatilla, Oregon, thence over U. S. Highway 730 to the Oregon-Washington state line and return over the same route.” The plaintiff would construe the restriction as applicable only to the Oregon part of the route indicating through such interpretation that Inland shall not pick up traffic at Portland moving in an eastbound direction and deliver such traffic at any point along such route in Oregon nor shall it pick up any westbound traffic in Oregon west of the junction of U. S. Highway 730 and U. S. Highway 410 and deliver such traffic at another Oregon point, including Portland. Following this interpretation plaintiff concludes that the last clause of the paragraph reading “all other intermediate points on the above-specified routes unrestricted” authorized any shipment that might originate in Seattle and meet the Portland-Lewiston route at the junction referred to and then proceed westerly into Oregon destined, for delivery on said route. This construction the Commission did not accept. The Commission interpreted the paragraph containing the restriction above set forth as applicable to all thirty-four routes preceding it and based its conclusion first on the form of the restriction as it appears in the Certificate. It contends that it is and has been the practice of the Commission in typing Certificates to align the paragraphs which contain restrictions applicable to all preceding routes flush with the preceding “between” route descriptions whereas if they had intended it to be applicable to but one route the paragraph containing the restriction would have following immediately the description of the route restricted and the type would have been indented and carried on the Certificate flush with the “from and to” route description. This interpretation appears to be consistent with the Commission’s general practice in issuing and interpreting similar Certificates where numerous authorized routes are followed by restrictions applicable to all routes. A. C. E. Transp. Company, Inc., Interpretation of Certificate, 51 M.C.C. 155; Lavigne v. J. E. Faltin Motor Transp., Inc., 54 M.C.C. 503 at page 508. Having interpreted the paragraph as applicable to all routes described before, the Commission construed the language “those in Oregon restricted to pickup only on eastbound traffic, and delivery only on westbound traffic” to be applicable to the Seattle-Junction route when combined with the Lewiston-Portland route and decided that the transportation involved having originated in Seattle or vicinity of Puget Sound was an eastbound movement although after moving easterly to the point of juncture with the Lewiston-Portland route it moved on said route in a westerly direction before reaching destination. To one not familiar with the Commission’s practices in issuing and phraseology in describing routes and restrictions in their Certificate to motor carriers it would appear that more exact and definitive language could have been used in describing the restrictions intended. That the language used is confusing is indicated by the fact that prior to the filing of the complaint the Director of the Bureau of Motor Carriers of the Interstate Commerce Commission by letter advised counsel for the complainants in the original proceeding that the transportation now found to be unauthorized was in his opinion permitted under the Certificate here involved. Counsel for plaintiff made reference to and attached copy of said letter in his exceptions to the proposed report and order of Joint Board 45 but does not now contend that the letter is or was binding upon the Commission. However, assuming the language contained in the restricting paragraph to be ambiguous, the court under its limited function in review of the Commission’s order cannot conclude that the Commission’s construction of its certificate is clearly wrong or arbitrary and therefore we sustain the Commission’s finding that the plaintiff is not authorized by its Certificate No. MC-59077 to transport in interstate commerce any commodities over any routes from Seattle, Washington or points in the area of Puget Sound, to intermediate points on its routes in Oregon authorized therein and appearing above the restrictive paragraph on sheet 4 therein. No consideration has been given by the court to that portion of the Commission’s order referring to the so-called “Portland Movement” inasmuch as plaintiff in its petition for reconsideration before the Commission expressly stated it did not desire that portion of Division 5 order headed “The Portland Movement” to be reconsidered. With respect to plaintiff’s contentions 2 and 3 as set forth in the conclusion of its brief and referred to earlier herein the court is of the opinion they are without merit under the authority of United States v. Pierce Auto Lines, 327 U.S. 515, at pages 530 and 535, 66 S.Ct. 687, at pages 695, 697, 90 L.Ed. 821.
974745-6141	HEANEY, Circuit Judge. Larry Thompson, a black, brought this action under 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq. against his former employer McDonnell Douglas Corporation. Thompson alleged that he was discriminated against with respect to pay, that he was discriminatorily transferred, that he was denied a promotion to a position for which he was qualified and that he was constructively discharged. The opinion of the District Court denying relief is reported at 416 F.Supp. 972 (E.D.Mo.1976). The District Court held that even if Thompson had established a prima facie case of racial discrimination, McDonnell Douglas had sufficiently rebutted his charges. We affirm. In a Title VII case, the plaintiff must establish a prima facie case of discrimination before the burden of proof shifts to the defendant to show valid reasons for its actions. The plaintiff must then be given an opportunity to demonstrate that the defendant’s asserted reasons are mere pretexts. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). For the purpose of this opinion, we assume, without deciding, that the burden of proof properly shifted to the defendant, McDonnell Douglas. However, the findings of the District Court that McDonnell Douglas did not discriminate against Thompson because of his race and that its justification for its actions were not pretextual, are supported by substantial evidence and we cannot say they were clearly erroneous. Garrett v. Mobil Oil Corp., 531 F.2d 892, 895 (8th Cir.), cert. denied, 429 U.S. 848, 97 S.Ct. 135, 50 L.Ed.2d 121 (1976); Green v. McDonnell Douglas Corp., 528 F.2d 1102, 1104-1107 (8th Cir. 1976); King v. Yellow Freight System, Inc., 523 F.2d 879, 882 (8th Cir. 1975); Naraine v. Western Electric Company, Inc., 507 F.2d 590, 593-594 (8th Cir. 1974). We thus find it unnecessary to decide whether Thompson established a prima facie case of racial discrimination. I. Thompson’s Claim of Pay Disparity. Thompson worked as a computer operator for McDonnell Douglaá from July, 1966 to February, 1972. During the winter of 1970, Thompson obtained the pay records for Geraldine Orso, John Sniderjohn, Don Pindell and Roger McMahon, all of whom were also computer operators. The records revealed that while Orso and Pindell were earning more than Thompson, Sniderjohn and McMahon were both earning less. After Thompson complained to his supervisors, an investigation was initiated of any pay differences among computer operators. Initially, the manager of Equal Employment Opportunity Programs for McDonnell Douglas thought the problem might be best resolved by granting Thompson pay parity. Upon further investigation, however, he concluded that the pay differentials were justified by Pindell’s supervisory status and Orso’s better qualifications and performance ratings and greater seniority. The District Court found that the difference in pay between Orso and Thompson was further justified by the additional work Orso was required to perform because of Thompson’s frequent absences from his work station. The District Court’s finding that McDonnell Douglas’s justifications were not pretextual is supported by the record. II. Thompson’s Claim of Discriminatory Transfer. During the first six months of his employment at McDonnell Douglas, Thompson was assigned to the first shift in scientific computer operations. Subsequently, he was assigned to the third and then to the second shift in the same department. In January of 1971, he was again assigned to the first shift to accommodate his junior college class schedule. Then in May, 1971, he was transferred to a different department in the administrative rather than the scientific area of computer operations. Thompson’s transfer from scientific computer operations was precipitated by a conversation on April 30, 1971, between Thompson and Virginia Stafford, a clerk in his department. Stafford reported to her supervisor that during the conversation, Thompson used obscene language and made veiled sexual threats against the supervisor’s wife. The supervisor prepared an Employee Incident Report (EIR), a copy of which was given to Thompson. Two supervisors discussed the EIR with Thompson at a meeting on May 5, 1971. One of the supervisors testified that Thompson did not deny the report and was concerned about his future with McDonnell Douglas. At trial, Thompson denied the version of the conversation contained in the EIR and testified that he had not been asked to relate his version of the incident. At the meeting, a lateral transfer to administrative computer operations was suggested. The District Court found that the reason for the transfer was to avoid personnel conflicts resulting from the incident, to eliminate the possibility that such conflicts would jeopardize Thompson’s opportunity for advancement and to enable him to become familiar with the administrative area of computer operations where he had a better chance for promotion. A review of the record convinces us that the reasons for the transfer given by McDonnell Douglas are sufficient justifications for its actions and are not a mere pretext. See Garrett v. Mobil Oil Corporation, supra; Glover v. Daniel, 318 F.Supp. 1070 (N.D.Ga.1969), aff’d per curiam, 434 F.2d 617 (5th Cir. 1970). III. Thompson’s Claim of Discrimination in Promotion. An interest in promotion to the position of programmer trainee was expressed by Thompson early during his employment at McDonnell Douglas. He was informed that he needed an Associate of Arts degree, an above-average work record and a recommendation from his supervisor to become a programmer trainee. He was further advised that he should continue for a full four-year degree and that he should seek a transfer from the scientific to the administrative area of computer operations. In June, 1971, Thompson received an A.A. degree. However, with the single exception of the slightly above-average rating he received on February 4, 1971, he consistently received only average performance ratings. Evidence was also presented that he was frequently absent from his work station.
6055116-26520	OPINION MERRITT, Circuit Judge. This is a Fourth Amendment, constitutional tort case brought under 42 U.S.C. § 1983 against Grand Traverse County, its sheriff, and other officers whose activities on the evening of November 9, 2007, and the next morning, ended in the death of Craig Carlson at his house. In Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948), the Supreme Court pointed out succinctly the function of the Fourth Amendment warrant requirement as an instrument designed to force law enforcement agencies to seek review and regulation of their proposed conduct by an independent judicial officer, despite its “inconvenience to the officers and some slight delay”: The point of the Fourth Amendment, which is often not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officers engaged in the often competitive enterprise of ferreting out crime. See also Riley v. California, — U.S.-, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (quoting Johnson, 333 U.S. at 14, 68 S.Ct. 367). Approximately sixty police officers converged on Craig Carlson’s house beginning around 9:00 p.m. after telephone calls from family members indicated that Carlson, who was armed and dangerous, was threatening suicide while alone in his house. The next morning, hours after their last contact with Carlson, officers broke the windows and flooded the house with tear gas. The gas did not drive Carlson from his house as the officers intended. When Carlson finally reacted, hours later, he began shouting and threatening officers in his yard. A sniper, who believed Carlson was preparing to shoot one of those officers, shot through a window, killing Carlson. The district court granted summary judgment to the county and the officers in charge of the operation who did not seek a warrant allowing them to attack Carlson’s house with tear gas or seize him inside. We reverse this ruling and remand for a jury trial. The district court did not grant summary judgment in the case against the sniper who killed Carlson, but a jury returned a verdict in his favor. Carlson’s Estate appealed various rulings in the jury trial, but we find no error and affirm the judgment below in that case. I. Factual Background Supreme Court precedent instructs us to extend the normal benefits of “all justifiable [factual] inferences” to the nonmovant plaintiffs when reviewing a grant of summary judgment for the defendants. Tolan v. Cotton, 572 U.S.-, -, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Accordingly, we recount the facts of this ease in the light most favorable to Carlson’s Estate. The decedent, Craig Carlson, called 911 at 8:30 on the evening of November 9, 2007, and requested a visit from a deputy to “talk.” Deputy Jason Hamilton had conducted similar “welfare checks” on Carlson the week before in response to calls from an anonymous caller and Carlson’s sister, Jaqueline Smith, who each expressed concern that depression, a recent job loss, and pending domestic violence charges might lead Carlson to hurt himself. On those prior occasions, Hamilton noted that Carlson seemed intoxicated but “very passive.” Following those visits and a conversation in which Smith indicated that Carlson was well armed and might get in a shootout with police if they tried to take him into custody, Hamilton had filed an internal report to help other officers respond appropriately to any future calls. Smith also called 911 on November 9th to get help for her brother because she believed that he intended to die, perhaps by provoking a shootout. According to Smith, Carlson’s “guns [we]re loaded” and he was “ready to die and put a bullet in his heart.” Smith explained: He said he has one [gun] just empty and he’s going to point it intentionally because he is dying tonight one way or another whether they shoot him or not and if they don’t, he has guns hidden all over the house ... everywhere that are loaded and if he has to he’ll shoot somebody in the knee or the arm forcing them to take him out. She reported that Carlson had “like 2,000 rounds of ammunition.” Robert Carlson— Carlson’s brother and the personal representative of the Estate in this action — also called 911 that evening, reiterating his sister’s concerns and reporting that Carlson had “already paid for his funeral.” The family’s calls indicated that Carlson “probably [wa]s armed and dangerous ... [a]nd[] wanting probably to provoke an officer into shooting him so he wo[uld]n’t have to do it himself, shoot himself.” Concerned that Carlson might try to provoke a shooting, a dispatcher called Carlson to let him know that a deputy sheriff was going to visit him and that the deputy would want to talk outside. Carlson rejected that idea, explaining that he had refreshments available (“pop, beer or coffee”) and that he “ha[d] no desire, this is not a, I want to shoot you, you shoot me thing.” Carlson eventually spoke with a state trooper by phone and reportedly felt better after discussing his problems. Officers began arriving at Carlson’s house at around 9:00 p.m. They parked down the street to avoid detection and walked to the house. Carlson’s house was well lit, and unobstructed windows provided a clear view into the house. The first two officers reported seeing Carlson in his basement loading a “long gun” and later putting a pistol to his own head. They waited outside in the dark for backup. As more officers arrived, two took positions at the rear of the house to prevent Carlson from escaping unobserved. One of those officers saw Carlson open his sliding back door and fire a single shot into the woods shortly after 10:00 p.m. The parties agree that Carlson was unaware of the officers’ locations at that time and was shooting to draw attention, though testimony from officers suggests Carlson may have believed they were near enough to hear him. The parties also agree that this was the only shot Carlson fired. Shortly thereafter, at Grand Traverse County Sheriff Scott Fewins’s request, a large interdepartmental “Emergency Response Team” led by Traverse City Police Sergeant Steve Drzewiecki converged on Carlson’s house. This Team included approximately sixty officers from various agencies with special training in weapons and tactics appropriate for potentially volatile encounters. They surrounded the house, working in shifts to maintain a secure perimeter throughout the cold November night. The Team flattened the tires on Carlson’s truck to prevent him from escaping. They also escorted Carlson’s neighbors to safety, leaving only a disabled man who spent the night in his basement with his wife until tear gas deployed against Carlson forced him to leave the area the following morning. At the instruction of Fewins and Drzew-iecki, a police negotiator telephoned Carlson at 11:30 p.m. and asked how they could resolve the situation. Carlson asked again for an officer to come inside and talk with him. The negotiator conferred with Few-ins who rejected that plan, citing the prior shot into the woods. The negotiator reconnected with Carlson and explained that the prior gunshot made it impossible for an officer to come inside to speak with him. Carlson denied firing the gun and denied wanting to harm anyone. The negotiator confirmed the officers’ reports of the gunshot and the weapons and called Carlson back. During the third call with the negotiator, Carlson became agitated and threatening. According to the negotiator, Carlson claimed falsely to have been a sniper in Beirut but still insisted that he did not want to hurt anyone. Carlson continued to ask to speak with an officer in person but also said he was ready for “war.” The Team shut off Carlson’s gas line to deprive him of heat and set up lights to illuminate his house. They cut his electrical power. The negotiator testified that Carlson said, “I know at some point you are going to deploy tear gas, and when you do, that will be the start of the war. And I’m going [to] kill everybody.” Carlson refused to answer the negotiator’s calls after 3:30 a.m., but he continued making calls to his sister, leaving eleven voicemail messages in the early hours of November 10. She testified that 911 dispatchers asked her not to answer those calls, and she complied. The Team maintained the siege of the house all night without seeking a warrant. They never considered asking for a warrant because he believed it was unnecessary. Asked to explain why he would not need a warrant to arrest Carlson in his home, Fewins referred to his earlier speculation that the shot into the woods might have constituted “reckless discharge of a weapon” — a misdemeanor. He then justified his warrantless, approach by explaining, hypothetically, what would have happened if he had requested and received a warrant: [N]ow we have a misdemeanor warrant. That warrant is not going to be easily served anyways, because, number one, it was committed in our presence, so we have the right to act upon that as soon as we can safely take him into custody. So we don’t need the warrant. And the other thing is, even with the warrant, it does not put us in any better of a bargaining spot or any better of a position because it was still impossible for us to enter that residence and serve that warrant on him in his state being barricaded like he was. So the warrant would have been to no avail. The only time the warrant would have been handy is if we had decided to just vacate the area, leave Mr. Carlson alone, sleep it off, hopefully [sic] that he wouldn’t go anywhere and hurt anybody or himself, and then serve the warrant at a later time. Fewins Dep. 21. After more than two hours without seeing or hearing anything from Carlson, the Team shot fourteen canisters of tear gas into his house, breaking every window and denting the siding. Carlson did not respond. About an hour later, and still without seeking a warrant, they fired a second round of tear gas. Carlson still did not respond. At 7:00 a.m. — more than nine hours into the standoff and still without a warrant — the Team tossed a “throw phone” through the broken living room window. The throw phone included basic telephone equipment that allowed the Team to “call” Carlson and give him a chance — which he never took — to answer the call. But it was not an ordinary telephone. Fewins emphasized that it would not allow Carlson to “call the radio station” or “to call, you know, an attorney.” Id. at 41. It also contained secret microphones and a hidden camera that allowed the negotiator to surreptitiously listen to sounds in the house and could have allowed them to see inside. According to Fewins’s deposition testimony, he “never” seeks a warrant before using throw phones. The Team next saw Carlson moving around the house at around 9:00 a.m. A trio of deputy sheriffs — Travis Chellis and two others — had positioned themselves in Carlson’s yard, not far away from the house. When Carlson started shouting about the damage to his house and threatening to sue, Chellis requested permission to speak with Carlson and began a conversation. During the ten minute conversation, Carlson reportedly walked back and forth in front of a large window with a rifle pointing in the general direction of the three deputies in the yard and another gun visibly hanging from a strap around his neck. Chellis radioed a request for someone to get a “long gun with glass” (a rifle with a scope) on Carlson. At trial, Jetter testified that the tone and substance of his friend Chellis’s request over the radio left him with the impression that Chellis was in trouble. After hearing Chellis’s radio message, Jet-ter decided to move to a better position with a clear view of the window. After notifying his commanders, he ran to the new location while watching the house. Jetter testified that after taking a new position with a better view of the window: [i]t was a matter of gathering a couple breaths, gathering my composure, thinking out loud[:] What is he doing? Why is he doing this? Oh my God, I’m going to have to shoot this person. I thought about my family. I thought about Sheriff Fewins. I thought^] [W]hy is he doing this? Why is he moving his finger? Oh, my. I had to take a breath, and that’s when I shot. Jetter’s bullet struck Carlson in the head, killing him instantly. The district court in this case concluded that “[e]xigent circumstances existed at the time of each alleged violation of the warrant requirement and therefore no constitutional violation occurred.” It did-not consider how police action in the early hours of the conflict reduced the risk that Carlson could harm others. Nor did it consider whether Carlson’s hours of inaction before, during, and after the tear gas assault undermined the defendants’ claim of imminent danger. Instead, the court relied on a broad finding of perpetual exigency to hold that “the use of tear gas ... was objectively reasonable” and therefore not an excessive use of force. Op. & Order 29. Addressing the tear gas, it concluded that “reasonable officers could believe that the first use of tear gas around 5:80 a.m. was necessary to prevent imminent harm to themselves in particular.” Id. Likewise, the district court concluded that when they again flooded Carlson’s house with tear gas an hour later, “nothing had terminated the exigency,” so “reasonable officers could believe that the second round of tear gas was necessary to prevent imminent harm to themselves.” Id. at 29-30. Thus, the district court believed that exigent circumstances existed at 9:00 p.m. when the police began surrounding Carlson in his house and continued unabated for more than twelve hours until the sniper killed him there the next morning. II. Fourth Amendment Exigency The Fourth Amendment prevents police officers from intruding into a person’s house without first securing permission from a disinterested magistrate unless exigent circumstances would make it unreasonable to wait for judicial approval. “To arrest a person in his home, police officers need both probable cause and either a warrant or exigent circumstances.” Goodwin v. City of Painesville, 781 F.3d 314, 327 (6th Cir.2015). For exigent circumstances to excuse a warrantless search or seizure, there must be both “compelling need for official action and no time to secure a warrant.” Missouri v. McNeely, — U.S. -, 133 S.Ct. 1552, 1559, 185 L.Ed.2d 696 (2013) (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)). “Police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Time is an essential factor when an immediate threat forms the basis for police claims of exigency. We have held that “[ejxigent circumstances terminate when the factors creating the exigency are negated.” Bing v. City of Whitehall, 456 F.3d 555, 565 (6th Cir.2006) (citing Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). If the dangers persist or increase, the exigent circumstances also persist. See id. (“The passage of time did not terminate the exigency because the ticking of the clock did nothing to cut off Bing’s access to his gun, or cure him of his willingness to fire it, or move to safety the people nearby who refused to evacuate.”). But those dangers may diminish over time as police gain a measure of control, and when they do, the exigency and reasonableness of warrant-less intrusions diminish in tandem. When police initiate action after a long delay with no new provocation, the delay itself may suggest an unreasonable evasion of the Fourth Amendment rather than a reasonable response to a dynamic threat. See O'Brien v. City of Grand Rapids, 23 F.3d 990, 998 (6th Cir.1994) (“[T]he fact that the officers waited four-and-a-half hours before deciding to use the first probe belies defendants’ claim that exigent circumstances existed that prevented them from seeking a warrant.”). Any exigent circumstances that could have justified the warrantless use of tear gas and defendants do not claim to have been in hot pursuit of Carlson or otherwise concerned that he might destroy vital evidence. Indeed, nothing indicates that the Team was pursuing him for any past crimes, at least not for anything other than the possible reckless discharge of a weapon identified by Fewins as a likely misdemeanor. A misdemeanor such as that would not generally establish exigent circumstances to justify a warrantless entry into Carlson’s house. See Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (“When the government’s interest is only to arrest for a minor offense, th[e] presumption of unreasonableness [that attaches to all war-rantless home entries] is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.” (footnote omitted)). Viewing the totality of the circumstances from the perspective of a reasonable officer at the time of the first tear gas barrage, Carlson was thought to be (and actually was) alone in the house. His neighbors were safely out of Carlson’s reach (though not, as it turns out, entirely safe from the tear gas). The Team had Carlson contained with snipers and other officers carefully monitoring his floodlit house. Even after Carlson stopped responding to their negotiator, they had family members near at hand with open lines of communication. They had time to call a convenience store for refreshments; they had time to call a judicial officer. The choice to call for granola bars but not a warrant appears to have been driven by the Sheriffs misunderstanding of the Fourth Amendment. “[I]nconvenience to the officers and some slight delay ... are never very convincing reasons ... to bypass the constitutional [warrant] requirement.” Johnson, 333 U.S. at 15, 68 S.Ct. 367. Fewins’s approach — choosing not to even request a warrant because he thought a misdemeanor arrest warrant would not have been “handy” or “put [the Team] in a better bargaining spot” — misses the point entirely. Judicial warrants are not intended to blindly facilitate whatever course of action a sheriff prefers. They are required by the Fourth Amendment “so that an objective mind might weigh the need to invade th[e] privacy [of the home] in order to enforce the law.” McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The Fourth Amendment thus protects people from the power of the state by requiring judicial preappro-val, time permitting, of intrusive or forceful entrances and seizures. Johnson, 333 U.S. at 13-14, 68 S.Ct. 367. Instead of giving a sheriff the discretion to decide whether to seek a warrant from a neutral judicial officer based on how helpful the warrant would be to the sheriff, “[t]he point of the Fourth Amendment” is to vest the discretion to approve or deny an officer’s plan to seize a person or search a house in a “neutral and detached magistrate.” Id. The warrant requirement is relaxed when an emergency situation makes it unreasonable to delay long enough to seek one, not when — as Fewins suggests here — a warrant simply would not have been particularly useful in the field. The facts available at summary judgment raise an inference that the Team had the time — and thus the constitutional obligation — to get a warrant from a judge before entering Carlson’s house with tear gas and surveillance equipment. <cWe are not dealing with formalities.” McDonald, 335 U.S. at 455, 69 S.Ct. 191. In this case, a neutral magistrate evaluating an application for an arrest warrant might have questioned the wisdom of a tear gas assault in response to Carlson’s statement that he “kn[e]w at some point [they were] going to deploy tear gas, and when [they did], that w[ould] be the start of the war. And [he was] going [to] kill everybody.” An objective judge might also have clarified whether the Team was trying to save a disturbed and dangerous man or take him into custody on a misdemeanor weapons charge. Whatever the goals, a judge setting parameters on the warrant might have taken note of experts’ consistent advice to law enforcement that, “techniques of eliciting compliance on the part of [emotionally disturbed] subjects that may work with criminal subjects are not likely to work with emotionally disturbed people” so “officers should remain calm, exercise restraint, reassure the subject, avoid excitement, and attempt to avoid gathering crowds.” Michael Avery, Unreasonable Seizures of Unreasonable People: Defining the Totality of the Circumstances Relevant to Assessing the Police Use of Force against Emotionally Disturbed People, 34 Colum. Hum. Rts. L.Rev. 261, 293 (2003). Longstanding precedent in this circuit leaves the factual question of exigent circumstances to the jury in a civil case. A quarter-century ago, a panel facing similar circumstances explained: Although, in a motion to suppress evidence in a criminal case, the factual determination whether exigent circumstances existed to excuse a warrantless arrest is a question for the court, when the issue arises in a civil damage suit it is properly submitted to the jury providing, given the evidence on the matter, there is room for a difference of opinion. Here, there is very considerable room for disagreement.... Since there was room for disagreement whether any of the exigent circumstances existed that are ordinarily held to justify a.warrantless arrest, we hold that the jury should have been given the issue to decide under proper instructions. We therefore remand for a new trial. Jones v. Lewis, 874 F.2d 1125, 1130-31 (6th Cir.1989) (emphasis added) (citations omitted); accord O’Brien, 23 F.3d at 998 (“In a civil damage suit, whether exigent circumstances existed to excuse a war-rantless arrest is a question for the jury provided that, given the evidence on the matter, there is room for a difference of opinion.”). The Estate’s evidence suggests that in the split second of their choosing and without a warrant of any kind, the Team decided to end hours of tense, quiet.waiting by taking the precise action that Carlson had described as “the start of the war.” A jury could find the totality of the circumstances made this unreasonable, not just with 20/20 hindsight, but from the perspective of any reasonable person responsible for rendering aid to an armed and obviously emotionally disturbed person and that no immediate danger exigency excused the various warrantless actions taken against Carlson while he was taking refuge in his home. In a situation such as this, where various inferences are possible, the courts have decided that the reasonableness of police conduct should be decided by a jury. We therefore reverse the district court’s order dismissing the counts against the county and the supervising officers and remand the case so a jury may decide whether the defendants’ various warrant-less seizures and searches during a standoff that began with requests to save Carlson’s life and ended with a sniper shooting him dead were reasonable. Wé express no position on the merits of the alternative defenses pretermitted by the district court’s erroneous conclusion that- exigent circumstances excused the warrant requirement — i.e., whether municipal liability attaches to the choices made by Fewins and Drzewieeki. See generally Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (“We hold that municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.”). III. Use of Force Policy The Estate also challenges later rulings by the district court during the trial of the remaining defendant, the sniper Charles Jetter. The Estate argues that it should have been permitted to argue that Jetter’s fatal shot violated a departmental “Use of Force Policy” in support of its broader argument that Jetter’s shot was objectively unreasonable under the Fourth Amendment. That Policy states in relevant part: “Before using lethal force, police officers shall identify themselves and state their intent to use lethal force, where feasible.” The Estate argues that this made it unreasonable for Jetter to shoot without first warning Carlson and that the jury should have been so informed. The Estate interprets the Policy as requiring Jetter to issue a verbal warning before firing, thus disregarding the “where feasible” language, Jetter’s role as a sniper, and his claim of danger to the other officer. In the language of the Policy it was not “feasible” for a camouflaged sniper to identify himself and' shout a warning when a suspect is preparing to fire on another officer. Moreover, the policy does not set the constitutional standard required by the Fourth Amendment, so it was not improper for the district court to limit the Estate’s use of that document at trial. Although the Policy was already in evidence, the district court would not allow the Estate to use it to cross examine Jet-ter’s expert to establish “what is objectively reasonable when it comes to a claim under the Fourth Amendment.” Trial Tr. 1746. The district court explained further: “The law is clear that the policy doesn’t set forth the [constitutional] standard, that’s why you need an expert witness, which I guess you are not going to call, I guess. You can’t use a policy to create a [constitutional] standard.” Id. The district court was correct. See Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir.1992) (“A city can certainly choose to hold its officers to a higher standard than that required by the Constitution without being subjected to increased liability under § 1983. To hold that cities with strict policies commit more constitutional violations than those with lax policies would be an unwarranted extension of the law, as well as a violation of common sense.”). We affirm that ruling. IY. Spoliation Instructions
1113518-15924	MEMORANDUM OPINION TURK, District Judge. Bank United appeals the Bankruptcy Court’s denial of its motion to set aside a default judgment which that court entered against it in an adversary proceeding in which the appellee-debtor, Richard Hamlett, sought to void three deeds of trust that Bank United held on Hamlett’s property. Because the Court finds that the Bankruptcy Court abused its discretion in failing to set aside the default judgment, this Court will reverse the order that denied the motion to set aside the judgment and will remand the cause for further proceedings on the merits. I. In 1983, Appellant Bank United (“the Bank”) loaned Appellee Richard Hamlett approximately $73,000. As security for those loans, the Bank took deeds of trust on three properties owned by a corporation that Mr. Hamlett controlled. At some point in the late ’90’s the exact date is not clear from the record Mr. Hamlett filed a Chapter Seven voluntary bankruptcy proceeding. The Bank duly filed its notices of claims in the proceeding, which informed the trustee of the debts that Mr. Hamlett owed it. However, the Bank filed the notices late. The trustee therefore objected to the claims. The Bankruptcy Court disallowed them because of tardiness under 11 U.S.C. § 502(b)(9) (2000), which disallows claims (both secured and unsecured) that are “not timely filed.” With the claims disallowed, on October 25, 2000, Mr. Hamlett filed suit in Bankruptey Court to void the liens that secured those claims. Mr. Hamlett filed with the bankruptcy clerk a “Motion to Avoid Lien” that was styled not as “Hamlett v. Bank United,” but rather incorrectly as “Hamlett v. United Bank of Texas.” The clerk prepared a summons with this incorrect title; however, no one served the motion or summons immediately. On November 1, 2000, Mr. Hamlett’s attorney prepared a “Second Amended Motion to Avoid Lien,” with the correct style of the case. He served all three documents (the original, incorrect summons; the original, incorrect Motion to Avoid Lien; and the amended, correct Motion to Avoid Lien) on Bank United’s corporate secretary in Texas. The parties appear to agree that there is no connection whatsoever between United Bank of Texas and Appellant Bank United. The Bank neither answered the complaint nor appeared in any way. On January 9, 2001, in a motion styled “Hamlett v. Bank United,” Mr. Hamlett sought a default judgment “against Bank United of Texas.” Again he claimed that the Bank’s liens were void. He served the motion on Bank United’s corporate secretary. The Bank did not appear. After holding a hearing on February 13, 2001, the Bankruptcy Court entered a default judgment on March 13, 2001, voiding the deeds of trust that the Bank held on all three properties. Bank United received a copy of the default judgment and appeared for the first time in the proceeding on April 2, 2001. The Bank asked the Bankruptcy Court to set aside the default and to allow it to defend its liens on the merits. After holding a hearing on the question, the Bankruptcy Court entered an order denying the motion to set aside the default judgment. From this order Bank United appeals. This Court held oral argument on February 26, 2002, and now reverses. II. A Bankruptcy Rule 7055 applies the standards of Federal Rules of Civil Procedure 55 and 60 to default judgments in adversary proceedings. Rule 60 allows a court to grant relief from a default judgment on any of six grounds: excusable neglect, newly discovered evidence, fraud, a void judgment, a satisfied or vacated judgment, and “any other reason justifying relief from the operation of the judgment.” In addition to satisfying one of the six requirements of Rule 60, the Fourth Circuit has held that a party seeking to set aside a default judgment must also show timeliness, a meritorious defense, and a lack of unfair prejudice to the plaintiff. Werner v. Carbo, 731 F.2d 204, 206-07 (4th Cir.1984). This “overlapping” and the “broad phrasing of the rule free courts to do justice in cases in which circumstances generally measure up to one or more itemized grounds.” Id. at 207. Although the question whether a default judgment should be set aside is a matter committed to a trial court’s sound discretion, see McLawhom v. John W. Daniel Co., Inc., 924 F.2d 535, 538 (4th Cir.1991), the discretion is not limitless. Rather, the trial judge must exercise his discretion within the bounds of “accepted legal principles.” Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir.1947). The Fourth Circuit has articulated a clear preference for judgments on the merits as opposed to judgments by default, and has taken an “increasingly liberal view” of Rule 60’s requirements. Augusta Fiberglass Coatings, Inc. v. Fodor Contracting, 843 F.2d 808, 810-11 (4th Cir.1988). A court should resolve doubts about whether to set aside a default judgment in favor of setting it aside, see Werner, 731 F.2d at 207, and a court’s abuse of discretion on this question need not be “glaring” in order to justify reversal at the appellate level, see United Coin Meter Co., Inc., v. Seaboard Coastline R.R., 705 F.2d 839, 846 (6th Cir.1983). B. Keeping these standards in mind, Bank United has satisfied Rule 60’s criteria for vacating the default judgment. The first question is whether Bank United’s action was timely. The Bankruptcy Court entered the default judgment order on March 13, 2001. Bank United appeared and asked that the Court set aside the order on April 2, 2001. Nineteen days (or two-and-a-half weeks) had elapsed. That amount of timeless than a month seems reasonable to the Court. In Werner, 731 F.2d at 207, the Fourth Circuit assumed that a period of eleven weeks was reasonable with barely any discussion at all. Similarly, the Court of Appeals considered a period of two weeks to be prompt in Augusta Fiberglass Coatings, 843 F.2d at 812. There is no doubt here that Bank United’s attack on the judgment occurred within a reasonable time from the date on which the court entered the judgment. Second, the movant must demonstrate that setting aside the judgment will not prejudice the plaintiff unfairly. The prejudice that the rule contemplates is not the ordinary loss of advantage that would result anytime a party loses the benefit of a judgment it (more or less easily) ob tained. There must be something more. Werner, 731 F.2d at 207. The Plaintiff has not suggested any sources of prejudice here, other than that he would like to keep the judgment that he perhaps would not otherwise have obtained. The second criteria is therefore satisfied. The third criterion for relief is that the movant must have a “meritorious defense” to the underlying claim. In this instance, the “meritorious defense” prong is bound up with the Court’s reasoning regarding the final prong. Thus, the Court will discuss the two prongs together. C. In addition to the three threshold requirements timeliness, lack of prejudice, and a meritorious defense the movant of a Rule 60 motion must also show that he satisfies at least one of the six other criteria of Rule 60. Bank United suggests to the Court that it meets two of them: first, Bank United maintains that the judgment against it is void, in satisfaction of Rule 60(b)(4); second, Bank United argues that “other reason[s] justify relief from the operation of the judgment,” in satisfaction of Rule 60(b)(6). Because the Court finds that the Rule 60(b)(6) requirement is met, it need not address the Rule 60(b)(4) argument. Rule 60(b)(6) is a “catch-all provision.” Dowell v. State Farm Fire & Casualty Co., 993 F.2d 46, 48 (4th Cir.1993). It allows a court to grant relief because of “any other reason justifying relief from the operation of the judgment,” a somewhat circular proposition. Case law has interpreted the provision as granting courts a “grand equitable power to do justice in a particular case.” National Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 266 (4th Cir.1993) (quoting 7 Moore, Moore on Federal Practice ¶ 60.27[1], at 60-266 (1993)). Lest equitable discretion reign unbounded, however, the Supreme Court has held that a party may avail itself of 60(b)(6) only under “extraordinary circumstances.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863-64, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). The Fourth Circuit found extraordinary circumstances and vacated a default judg ment on facts similar to these in Compton v. Alton Steamship Co., 608 F.2d 96 (4th Cir.1979). There the plaintiff, a seaman, filed an admiralty action for back waged. His ad damnum clause demanded five thousand dollars, but the actual amount of the back wages was around three hundred dollars. After the defendant failed to appear, the plaintiff moved for a default judgment, but also included a request for penalties against the defendant. The trial judge granted the motion and entered judgment against the defendant for approximately sixty thousand dollars. The Fourth Circuit reversed. First, Judge Russell found that the district court’s ruling was based upon a clear error of law; indeed, the court held that there “was no basis whatsoever in fact or in law for such a judgment.” Id. at 107. The ruling was not merely erroneous; there was no basis at all for it and it presumably wound not have survived a Rule 12(b)(6) motion in the District Court. The Fourth Circuit did not go so far as to declare the judgment void (though it implied that it might be, see id. at 107 n. 4) but it did find that the judgment was so “unconscionable” that it could not stand. Id. at 107. In this ease not only does the Bank have a meritorious defense, it is fair to say that there is “no basis either in fact or in law” for the default judgment. Section 501 of the Bankruptcy Code (11 U.S.C. § 501) requires creditors to file a timely proof of claim in the bankruptcy proceeding. Here the Bank filed its documentation late. Thus, the trustee requested the court to disallow the claims and the court did so. This barred the Bank from recovering anything from the bankruptcy estate on the notes that Mr. Hamlett had signed. However, as Professor Collier has noted, the claim itself and the lien that supports it are two different interests: The relevant distinction lies between the recognition of a claim as a personal obligation of a debtor, and the existence of a lien as an in rem right to the property... If a secured creditor never files a proof of claim... its claim may be discharged by reason of the failure to file a proof of claim. However, in order for the lien to be avoided, either the holder or another person entitled to do so must file a proof of claim with respect to the creditor’s claim or otherwise seek disallowance of the claim or avoidance of the lien. 4 Collier, Collier on Bankruptcy, ¶ 506.06[4][a], at 506-156 (2001). In order to avoid the liens once the court disallowed the claims, Mr. Hamlett filed the instant adversary proceeding. Section 506(d) of the Bankruptcy Code provides that all liens are void when they are not based on an “allowed secured claim.” Here, the court disallowed the Bank’s claims. Nevertheless, an exception clearly applies: the liens are not void if the court disallowed the claims upon which they are based “only due to the failure of any entity to provide a proof of claim [under § 501].” 11 U.S.C. § 506(d) (2000). Plainly that is what happened here: the court’s order recites that the claims were disallowed as “filed after claims bar date.” See Order of 7/12/00, ROA Nos. 28, 24, 25. If the matter came to a hearing on the merits, Appellee’s Motion to Avoid Liens likely would not have survived the summary judgment stage. Even the Appellee’s attorney admitted before the Bankruptcy Court that Defendant’s defense had merit. Not only did the Bank have a meritorious defense (as Rule 60(b) always requires for judgments not void ab initio), but also the claim had no basis whatsoever either in fact or in law. Compton contemplates that default judgments based on claims that are so unfounded are extraordinary, and are eligible for Rule 60(b)(6) relief. The nature of the claim underpinning the default judgment might itself justify relief. Compounding the issue here are the problems surrounding the service of process. There are serious questions as to whether Bank United was even properly before the Bankruptcy Court when it entered its default judgment. Further, the confused state of the captions, especially of the initial process, might have led employees at the Bank to believe that they were not the subject of the lawsuit. Even the motion for a default judgment, which Bank United apparently received, recited that Mr. Hamlett sought a default judgment against Bank United of Texas. See ROA No. 5. Further, this confusion can be traced to documents (for instance, the initial motion) that the Plaintiffs attorney prepared. The defects in process buttress this Court’s conclusion that this case should be decided on its merits, not on a default. III. This Court is well aware of the need for finality in litigation. Nevertheless, on the extraordinary facts of this particular case the baseless nature of the underlying claim, combined with the questionable service of process, made the default judgment below one that a court cannot enforce in equity and good conscience. To do so would result in a seventy-five thousand dollar forfeiture and, as the old maxim reminds us, equity abhors a forfeiture. It was an abuse of discretion to refuse to set aside the default judgment. The order of the Bankruptcy Court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion. . The Bankruptcy Court ordered that one claim be "allowed as secured; disallowed for distribution purposes.” The court ordered the other two to be disallowed because the "[c]laim was filed after claims bar date.” See Judge Krumm's orders of July 12, 2000 (ROA Nos. 23, 24, and 25). . Appellee's counsel stated so during a later oral argument held in Bankruptcy Court. See Transcript of Motion to Reconsider Order Determining Liens at 17. . Defendant does make a strong Rule 60(b)(4) argument. A judgment is void if the entering court lacked jurisdiction over the parties, or when its entry violated due process. See generally 12 Moore, Moore's Federal Practice, ¶ 60.44, at 60-139 (Lexis Dec. 2001). Here, the defects in the service of process a completely incorrect party in the caption — were defects more substantial than the de minimis defects in cases like Morrel v. Nationwide Mutual Fire Ins. Co., 188 F.3d 218 (4th Cir.1999) (word “Inc.” left out of corporate name in summons) and Veremis v. Interstate Steel Co., 163 F.R.D. 543 (N.D.Ill.1995) (corporate name wrong in address portion of summons, but right in caption). As any first-year law student knows, when service of process is ineffective a court does not acquire personal jurisdiction over a party, and a default judgment resulting from such defective service is void. See Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24 L.Ed. 565 (1877). In addition, the judgment might be void because there is no legal basis for the relief given to the plaintiff. Normally, a judgment that is merely erroneous for some legal reason is not void. See O'Rourke Bros., Inc. v. Nesbitt Burns, Inc., 201 F.3d 948, 951-53 (7th Cir.2000). However, the Fourth Circuit has hinted, in dicta, that a judgment might be void within the meaning of Rule 60(b)(4) when the allegations in the Plaintiff's complaint "establish [] indisputably that he was not entitled to recover.” Compton v. Alton Steamship Co., 608 F.2d 96, 106 (4th Cir.1979); see Moore, supra, ¶ 60.44, at 60-149. Because of its resolution of the case under Rule 60(b)(6), this Court (like the Compton court) need not consider whether the void judgment clause of Rule 60(b)(4) has a "substantive” component, or if it is merely jurisdictional and constitutional.
3992588-15050	OPINION FITZGERALD, District Judge. The facts are essentially undisputed. Plaintiff Richard Aubertin is an enrolled member of the defendant Colville Confederated Tribes. Aubertin borrowed $10,034.14 from the Tribes on June 3, 1963 and later obtained additional loans increasing the principal amount by $8,127.12. The Tribes’ Credit Committee declared him in default on June 6, 1968 with a balance then owing of $9,487.29. The loan application on which Aubertin obtained the loan contained an assignment of income from any source accruing to his “Indian Money Account.” Aubertin filed a petition in bankruptcy on June 8, 1971, listing the loan as a scheduled debt. The Tribes admit receiving actual notice of the bankruptcy proceedings at some time prior to July 12, 1971. Aubertin obtained a discharge in bankruptcy on March 9, 1972. However, under established procedures followed by the Colville Indian Agency, income from Aubertin’s Indian Money Account was withheld from him and paid over to the Colville Tribes for application to his defaulted loan. Aubertin brought this lawsuit seeking return of all sums withheld by the Colville Indian Agency since the filing of his petition in bankruptcy, and an injunction against further withholding. The case is now here on cross-motions for summary judgment. I. JURISDICTION: The principle is well-recognized that as dependent, quasi-sovereign nations, Indian tribes enjoy sovereign immunity and cannot be sued without the consent of Congress or the tribe. United States v. United States Fidelity and Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940); Lomayaktewa v. Hathaway, 520 F.2d 1324 (9th Cir. 1975); Twin Cities v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967). Aubertin claims that the withholding by the Tribes of his per capita share of Indian money is contrary to provisions of the Indian Civil Rights Act, 25 U.S.C. § 1302. Although the Indian Civil Rights Act by its terms does not expressly limit tribal sovereign immunity, the courts have held that the Act does so by necessary implication. As noted in Martinez, supra, at 1042, “[S]ince this Act of Congress was designed to provide protection against tribal authority, the intention of Congress to allow suits against the tribe was an essential aspect. Otherwise, it would constitute a mere unenforceable declaration of principle.” Moreover, 28 U.S.C. § 1343(4) unequivocally confers on the district courts jurisdiction to determine whether an Indian tribe has denied any of the rights given to individuals under the Indian Civil Rights Act. Howlett v. Salish and Kootenai Tribes, supra; Johnson v. Lower Elwha Tribal Community, supra; Crowe v. Eastern Bank of Cherokee Indians, Inc., 506 F.2d 1231 (4th Cir. 1974); Luxon v. Rosebud Sioux Tribe of South Dakota, 455 F.2d 698 (8th Cir. 1972). Therefore, the Tribes’ initial contention that jurisdiction under the Indian Civil Rights Act should be limited to habeas corpus relief must be rejected. Whether this is an appropriate case in which to assume jurisdiction turns on whether Aubertin’s entitlement to “Indian money” is an interest protected under the Indian Civil Rights Act. Periodically, the Business Council of the Colville Tribes by resolution orders payment of a dividend to all tribal members. Each enrolled member of the Tribes is entitled to receive an equal share, with the exception of minors, adults under a legal disability and individuals who have defaulted on their loans. The Tribes’ policy of segregating from tribal funds the per capita share of those with delinquent debts and then crediting such share to each debtor’s account is a recognition that each debtor would have been entitled to a dividend payment were he not indebted to the Tribes. Although the resolution directing payment contemplates that the funds will be used for “subsistence, clothing, fuel, home repairs and improvements, furniture, educational expenses, medical and dental expenses, logging and farm equipment repairs and replacement, and other expenses”, there is nothing to indicate that’ the Tribes may restrict how the funds are spent. Thus, when the dividend is disbursed, it becomes the exclusive possession of the individual recipient, free from tribal supervision. Although Aubertin did not receive payment as a member of the Tribes, he had a vested interest in his share once it was segregated from tribal funds. I find that Aubertin’s right to receive tribal dividends is protected by the due process clause of the Indian Civil Rights Act, and that he may properly bring his cause of action under the Indian Civil Rights Act. Aubertin’s claim under the Indian Civil Rights Act rests on his contention that the Tribes have failed to comply with the discharge given him in bankruptcy. The following issues are therefore raised: Does the Bankruptcy Act apply to Indian tribes, and if so, have the Tribes violated the Bankruptcy Act by withholding Aubertin’s share of “Indian money”? Lastly, if the Tribes have violated the Bankruptcy Act, have they necessarily violated the Indian Civil Rights Act? II. THE APPLICABILITY OF THE BANKRUPTCY ACT TO INDIAN TRIBES: Article I, Section 8, Clause 4 of the Constitution vests in Congress the power to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” The purpose of the Bankruptcy Act has been described as “relieving] the honest debtor from the weight of oppressive indebtedness and permitting] him to start afresh . . . ” Williams v. United States Fidelity & Guaranty Co., 236 U.S. 549, 554-55, 35 S.Ct. 289, 290, 59 L.Ed. 713 (1915), and granting “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.” Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934). Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971) rejected any suggestion that deviations from the uniform application of the Bankruptcy Act can be allowed. While ruling that Arizona’s anti-discharge provision in its Motor Vehicle Safety Responsibility Act was unconstitutional under the Supremacy Clause because it conflicted with the federal Bankruptcy Act, the Supreme Court held in effect that a comparable law for the District of Columbia, enacted by Congress, was also unconstitutional because the Bankruptcy Clause in the Constitution requires uniformity throughout the nation. Although Perez did not deal specifically with a discharge against an Indian tribe, it went so far as to strike down even an act of Congress carving out an exception to the coverage of the Bankruptcy Act for one group and not others. Consequently, its broad language must be read to mean that an amendment to the Bankruptcy Act itself is necessary before an exception for Indian tribes is available. The Supreme Court has also held that, “a general statute in terms applying to all persons includes Indians and their property interests,” and that an exclusion for Indians must rest on plain words. Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 at 116, 80 S.Ct. 543 at 553, 4 L.Ed.2d 584 (1960). Applying the above standard, this circuit has ruled that federal firearm statutes apply to Indians absent a treaty right exempting the tribe from operation of the particular statute. United States v. Burns, 529 F.2d 114 (9th Cir. 1975). In two cases involving the tax status of individual Indians, Choteau v. Burnet, 283 U.S. 691, 51 S.Ct. 598, 75 L.Ed. 1353 (1931) and Leahy v. State Treasurer, 297 U.S. 420, 56 S.Ct. 507, 80 L.Ed. 771 (1936), the Supreme Court held that absent a definitely expressed exemption, federal statutory language which subjects the income of “every individual” to taxation applies to an Indian’s pro rata share of tribal royalty income derived from restricted mineral resources. The Tribes claim that the federal doctrine of Indian sovereignty, as reflected in the statutes, treaties, regulations and orders, is of long standing duration. Therefore, any congressional intention to circumscribe Indian sovereignty should not be read lightly into possibly conflicting congressional enactments. Specifically, the Tribes argue that disallowing the post-bankruptcy withholding would encroach upon tribal sover eignty in two respects: First, it would defeat a major tribal governmental function, namely, the ability to use tribal assets to help members in need of loans. Second, it would somehow contribute to the undermining of the Tribes’s cultural identity. Defendant alludes to “basic Indian cultural values and beliefs . . ., customs and practices . . ., notions of fairness commonly held in the Colville Tribal Community, . . ., the principle that an Indian should not break his promise to or take advantage of, his tribe, [which would be] offended by the idea that a tribal member can take advantage of bankruptcy to avoid repayment of his tribal obligation, and then demand that the tribe continue to pay him his share of tribal income . .” I find that allowing a bankruptcy discharge to operate against the Tribes in this case will not undermine tribal institutions. Defendant is engaged in the business of lending money, following loan practices similar to those of any non-Indian lender operating in the commercial money market. Its claims that its loan program would be hurt if a discharge in bankruptcy is effective against it may be true. But it does not necessarily follow that its business activities should therefore constitute internal tribal affairs free from the reach of applicable federal laws. The Tribes’ loan transactions are commercial activities properly subject to the Bankruptcy Act. Section 17c(3) of the Bankruptcy Act, 11 U.S.C. § 35(c)(3), provides that the bankruptcy court shall determine the dischargeability of any debt not excepted under Section 17 a. For the reasons stated above, I conclude that the Bankruptcy Act is an implied waiver of tribal immunity and that the bankruptcy court has the authority to discharge plaintiff’s debt to the Colville Confederated Tribes. III. THE EFFECT OF THE DISCHARGE: I now turn to the issue of whether the Tribes’ withholding of surplus funds, despite Aubertin’s discharge in bankruptcy, violated the Bankruptcy Act. Aubertin contends that the Tribes’ withholding of funds is prohibited by the 1970 Amendment to Section 14 of the Bankruptcy Act, 11 U.S.C. § 32. Specifically, he argues that the prohibition against “employing any process” to collect discharged debts in f(2) of the Amendment includes the actions of the Tribes. Further, to allow the Tribes to use “the Bureau of Indian Affairs as a collection agency for discharged debts of tribal members” would be contrary to the whole purpose of the Bankruptcy Act, that is, to grant the honest debtor a fresh start. Aubertin’s interpretation of the 1970 Amendment is not supported by legislative history. The purpose of the Amendment was “to effectuate more fully the discharge in bankruptcy by rendering it less subject to abuse by harassing creditors.” S.Rep. No. 91-1673, 91st Cong., 2d Session (1970). But the legislative record leaves no doubt that only a specific type of abuse was of concern: that creditors could bring suit in a state court after a discharge had been granted, often obtaining a default judgment against the debtor who either relied on his discharge or did not have the resources to contest the action. Thus, the words “employing any process” prohibits only the use of legal process to induce the debtor to repay his discharged debt. It does not preclude non-legal, informal means of inducing the debtor to make payment of the obligation. Girardier v. Webster College, 563 F.2d 1267 (8th Cir. 1977). I conclude that even should the loan agreement fail to establish a security interest surviving discharge — a question which need not be decided here — the Colville Confederated Tribes are not required to account to Aubertin for the money collected in repayment of his obligation. The discharge in bankruptcy only goes as far as to preclude the Tribes from enforcing the agreement through legal process in the courts. For the reasons stated, summary judgment is given for the Colville Confederated Tribes. . As additional security for my loan, I hereby assign to the lender, all income from trust land in which I now have or may in the future acquire an interest, and any income from any source accruing to my Indian Money Account. I hereby grant the Commissioner full right, power, and authority to demand, collect, sue, or receipt for any income from my trust land and to apply such income or any of the funds in my Indian Money Account on my indebtedness to the lender. I hereby appoint the Commissioner as my attorney to execute such leases on any trust land in which I now have or may in the future acquire an interest, as the attorney may find necessary to facilitate repayment of this loan. I hereby give the attorney power to do everything necessary in the making of such leases as fully as I could do, and hereby ratify all that the attorney shall lawfully do or cause to be done under this authority. I understand and agree that in the case of my death, this assignment of income and power to lease shall constitute a claim against trust funds and income superior to that of my heirs. . Bankruptcy No. B-71N-297 (E.D.Wash.). . According to the affidavit of the superintendent of the Colville Indian Agency, all of the income from tribal lands is trust income collected by the United States for benefit of the Colville Confederated Tribes. The agency office determines which members are on a “withhold list.” The aggregate of their per capita distributions is then credited to the agency “Individual Indian Money" account and the Tribes can transfer the credit to their own account. The Tribes have consistently withheld in this fashion the per capita payments of any member who has defaulted on his loan and applied the payments to the outstanding loan balance. . No federal official or entity was joined in this action. The Colville Indian Agency is the branch of the Bureau of Indian Affairs which carries out the trust responsibilities of the United States Government to the Colville Confederated Tribes. . The March 9, 1972 order of the Bankruptcy Court discharged Aubertin from all dischargeable debts without determining the discharge-ability of any debt. See § 14, 11 U.S.C. § 32. Rule 409(a)(1) of the Bankruptcy Rules provides that a proceeding to determine the dischargeability of a debt may be instituted by a complaint “filed at any time,” unless the restrictions of § 17 c(2) and Rule 409(a)(2) apply. This action is thus in the nature of adversary proceedings under Rule 701. . 25 U.S.C. § 1302. No Indian tribe in exercis- ' ing powers of self-government shall— . . . (5) take any private property for a public use without just compensation; ... (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.
550418-9807	DUFFY, Circuit Judge. This is a suit for infringement of Claims 1 and 2 of R. E. Skoog, et al. U. S. Patent No. 2,477,393. Plaintiffs also claim that they disclosed a trade secret which defendant obtained through a confidential relationship. The district court found the patent to be invalid and not infringed, and that there was no violation of a confidential disclosure. Plaintiffs are brothers who operated a small retail grocery and meat market in Minneapolis, Minnesota. Their groceries were sold on a self-service basis but the meat department was operated on a service basis. Desiring to establish a frozen food department and their floor space being limited, plaintiffs conceived the idea of placing on the front side of the refrigerated meat display cabinet which they had in their store, a narrow-open-topped freezer cabinet from which frozen foods could be sold on a self-service basis. This compartment had an open rear side but had a front wall and two side walls and was fastened by side plates, nuts and bolts to the lower front of the meat display cabinet, the top of the well being just below the level of the slanting glass front. Plaintiff described their cabinet as consisting of “a display compartment with an upper display portion having a glass front wall, an open-topped, open rear-side self-service compartment mounted in front of the display compartment and below the glass front of the display portion thereof, and a storage space in the display compartment below the display shelf in the upper display portion and behind the self-service compartment and having a common wall with the self-service compartment to reduce the dimensions of the two compartments, together with means for refrigerating the several compartments.” It is without dispute that a floor area of some 6" wide and the length of the cabinet was saved by plaintiff's arrangement over that which would have been required had the meat display cabinet and the freezer compartment been merely placed in juxtaposition. Plaintiff’s cabinet was installed for use of their customers shortly before Thanksgiving, 1947. An application for a patent thereon was filed December 13, 1947. In the hope of interesting a manufacturer of commercial refrigerator cabinets in purchasing the invention, plaintiff sent out letters dated January 2, 1948, to refrigeration manufacturers, including defendant, which did not state the nature of plaintiff’s invention but offered to make a disclosure, either by mailing photographs and a description or inviting one of their salesmen or engineers to call at plaintiff’s store and inspect the device. On January 9, 1948, defendant replied that it was always interested in something new and would turn plaintiff’s disclosure over to its engineering department for examination. The letter further stated, “ * * * no obligation is expressed or implied or assumed or imputed to us by reason of any disclosures which you may make to us, unless or until we find that you are the first to have made an invention in which we are interested and a written agreement is entered into between us.” On January 26, 1948, plaintiffs sent to defendant two photographs of their combination cabinet but made no reference to the conditions expressed in defendant’s letter of January 9. On February 11, 1948, defendant informed plaintiff that it was not interested in their combination cabinet. Within a year thereafter defendant commenced the manufacture and sale of a combination cabinet which plaintiffs claim infringes their patent and resulted from the appropriation of confidential information furnished to defendant by the plaintiffs herein. We think the district court was correct in finding noninfringement. Claims 1 and 2 of the patent in suit each provide for an open-topped compartment positioned on the front of the cabinet and exterior to the compartment. In defendant’s construction the open-topped compartment extends back into the cabinet through a front opening therein. It is not positioned on the front of the cabinet in the sense used in plaintiff’s patent claims. Furthermore, Claim 1 calls for one wall in common with the first named compartment. Defendant’s cabinet does not have a front wall of the display unit in common with-the rear wall of the open-topped unit. The test of infringement is whether the accused device does the same work in substantially the same way and accomplishes the same result. Hunt v. Armour & Co., 7 Cir., 185 F.2d 722, 728. In the patent in suit the completely separated compartments are individually cooled by cooling coils embedded in the walls thereof. In defendant’s cabinet the compartments are cooled by forced circulation of air past an exposed cooling coil, then divided and directed through the two communicating compartments after which it is returned to the coil for recooling. We agree with the conclusion of the district court: “The refrigerating means employed by defendant in its cabinet in suit is not the ‘equivalent,’ in the sense of the patent laws, of the refrigerating means employed by plaintiffs in their patent in suit.” As to validity, it is admitted that the refrigerated display unit and the open-topped quick freeze unit were separately old and had been in wide commercial use. The question is whether there was patentable novelty in placing the two units in juxtapositon to save floor space, with the back of one joined to the front of the other by a common wall and with the two units refrigerated by the same means or by separate means. Each unit of the patent in suit can be used separately and independently of the other. No new function results from a combination of the elements and the new result is merely that which arises from the operation of each. Blanc v. Spartan Tool Co., 7 Cir., 168 F.2d 296, 299. To be patentable the combination of old elements must contribute something. “Only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable.” Great A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162. “The mere aggregation of a number of old parts or elements which, in the aggregation, perform or produce no new or different function or operation than that theretofore performed or produced by them, is not patentable invention.” Lincoln Engineering Co. v. Stewart-Warner Corp., 303 U.S. 545, 549, 58 S.Ct. 662, 664, 82 L.Ed. 1008. Nor do we think that the combination of cabinets resulting in a saving of floor space rises to the dignity of an invention. Plaintiff’s combination made for convenience, it is true. But, as the court said in In re Hueber, 70 F.2d 906, 908, 21 C.C.P.A., Patents, 1112: “It may be more convenient, economical, and compact than prior devices. However, this does not render it patentable.” See also: National Pressure Cooker Co. v. Aluminum Goods Mfg. Co., 7 Cir., 162 F.2d 26, 29. We hold that the district court was correct in holding Claims 1 and 2 of the patent in suit to be invalid. Plaintiffs urge that defendant appropriated their trade secret obtained from them through a confidential relationship. They cite court decisions showing that a trade secret need not reach the stature of an invention; also that if the disclosure is merely a limited one, it does not abridge the right of the owner to maintain an action for the appropriation of a trade secret. We think it well established that there can be no confidential disclosure where there has* been a prior disclosure to the public without reservation. Nims, Unfair Competition, Vol. I, p. 402, says: “A secret is * * * anything hidden from general knowledge or observation.” In Affiliated Enterprises, Inc. v. Gruber, 1 Cir., 86 F.2d 958, 961, the court held that “any property right based upon secrecy was lost as early, at least, as the first public exhibition.” To the same effect: Northup v. Reish, 7 Cir., 200 F.2d 924. The district court found, “A refrigerated cabinet embodying such patented construction was built in plaintiffs’ store in Minneapolis, Minnesota, and was in unrestricted public use in said store in the serving of customers commencing before Thanksgiving of 1947, and continuing in use several years thereafter.” Plaintiffs argue that because their combination cabinet had been used only in their relatively small store for a period of about two months prior to their communication with defendant, it constituted only a limited disclosure. They say that the cabinet was only for the use of their customers who were not concerned with refrigeration cabinets as such, and thus there was not a general disclosure to the public. We do not agree. The cabinet was in close proximity to anyone entering the store. As we said in Smith v. Dravo Corp., 7 Cir., 203 F.2d 369, 373, “Of course, as the term demands, the knowledge cannot be placed in the public domain and still be retained as a ‘secret’. * * * That which has become public property cannot be recalled to privacy.” Plaintiffs place considerable reliance on Smith v. Dravo Corp., supra. How ever, the facts in that case and those in the case at bar are so different that the Smith decision is clearly distinguishable. In that case solicitation was made by defendant for detailed information as to plaintiff's container; there was a meeting of the parties to discuss the purchase of plaintiff’s business by defendant; plaintiff furnished detailed information, such as patent application, blueprints, sample container, and correspondence from possible users. Defendant inspected plaintiff’s physical plant and manufacturing operations, and later designed and put on the market a container which incorporated many if not all of the features of plaintiff’s design, and also made use of its customer list. We think Smith v. Dravo Corp., supra, is inappo-site.
4141230-5689	ORDER DENYING CERTIFICATE OF APPEALABILITY DEANELL REECE TACHA, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in 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. Petitioner-appellant James Baker, a federal prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to challenge the district court’s denial of his motion to vacate, correct, or set aside his conviction, which he brought under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(c), DENY Mr. Baker’s request for a COA, and DISMISS his appeal. I. BACKGROUND In 2006, Mr. Baker was convicted of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). The district court concluded that Mr. Baker was an armed career criminal based on three prior state convictions and enhanced his sentence accordingly. Ultimately, Mr. Baker was sentenced to 235 months’ imprisonment. On direct appeal, we rejected Mr. Baker’s arguments that he was entitled to a jury instruction regarding an “innocent possession” defense and that he could not be sentenced as an armed career criminal because his civil rights had been restored for at least one of his prior state convictions. See United States v. Baker, 508 F.3d 1321, 1330 (10th Cir.2007). After this court denied Mr. Baker’s request for a rehearing en banc, see United States v. Baker, 523 F.3d 1141 (10th Cir.2008), and the Supreme Court denied his petition for certiorari, see Baker v. United States, — U.S. -, 129 S.Ct. 349, 172 L.Ed.2d 89 (2008), Mr. Baker sought this post-conviction relief. In his § 2255 motion to vacate, correct, or set aside his conviction, Mr. Baker asserted various grounds for relief including multiple claims of ineffective assistance of counsel. The bases for his ineffective assistance claims were his attorney’s failure to: (1) assert a due process violation based on the jury’s viewing him in handcuffs; (2) assert a “mistake of fact” defense rather than an “innocent possession” defense; and (3) appeal a previous dismissal of Mr. Baker’s prosecution without prejudice. The district court rejected all of Mr. Baker’s claims and denied his motion. Mr. Baker now seeks a COA to appeal from that decision. II. DISCUSSION A petitioner may not appeal the denial of habeas relief under § 2255 unless he obtains a COA. 28 U.S.C. § 2253(c)(1). We will issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). When, as in this case, the district court denies the petition on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In his application for a COA, Mr. Baker first alleges that the trial judge “constructively amended” his indictment by instructing the jury that for the purposes of § 922(g)(1), “ammunition” includes cartridge casings. Mr. Baker did not assert this constructive amendment argument, however, in his § 2255 motion. In considering an application for a COA, we examine whether reasonable jurists could debate the district court’s resolution of the petitioner’s claims. Because Mr. Baker did not present any iteration of his constructive amendment argument to the district court in his § 2255 motion, that argument has no bearing on whether the district court’s resolution of his constitutional claims is debatable by reasonable jurists. We therefore do not consider this issue here. Mr. Baker also alleges in his application for a COA that his trial counsel was ineffective in failing to ask the trial court to instruct the jury to resolve whether his civil rights had been restored on his prior state convictions. In his § 2255 motion, Mr. Baker contended that the question of whether his civil rights had been restored on his prior state convictions is a question of fact that should have been decided by the jury rather than the trial court; however, he did not raise this argument in the context of an ineffective assistance of counsel claim. Although Mr. Baker technically couches his “restoration of civil rights” argument in terms of an ineffective assistance of counsel claim for the first time in his application for COA, we construe his pro se filings liberally, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991), and therefore consider this argument for the purposes of Mr. Baker’s application for a COA. The district court concluded that the restoration of civil rights issue is a question of law that was properly decided by the trial court. We have held that whether a defendant’s sentence is properly enhanced under the Armed Career Criminal Act is a question of statutory interpretation that we review de novo. United States v. Burns, 934 F.2d 1157, 1159 (10th Cir.1991). Furthermore, we have concluded that “in determining whether a state has restored a convicted felon’s privilege to possess a firearm, one must look to the whole of state law rather than simply to the certificate granting the restoration of civil rights.” Id. In light of this precedent, reasonable jurists could not debate whether the district court properly concluded that the restoration of civil rights issue is a question of law. Furthermore, Mr. Baker’s counsel was not ineffective in failing to seek a jury instruction on this legal question. Accordingly, Mr. Baker’s second argument is without merit.
10548164-15255	BOGGS, Circuit Judge. Barbara Ramsey, a teacher in the Whitley County, Kentucky, school system sued the Whitley County School Board and the Superintendent of the Whitley County school system (collectively referred to as the Board) under 42 U.S.C. § 1983, claiming she was deprived of property without due process of law when the Board reduced the number of her accumulated sick leave days from 142 to 29 and consequently reduced her compensation for sick leave days when she retired. The district court granted summary judgment in favor of the Board after concluding that Ramsey’s claim did not involve a deprivation of property actionable under section 1983 but instead was merely a commonlaw claim for breach of her employment contract and, consequently, actionable under state and not federal law. We agree with the district court’s conclusion that a state breach of contract action exists to remedy any deprivation of property Ramsey may have suffered. Accordingly there are no genuine issues as to material facts that would support an action under 42 U.S.C. § 1983. Thus, we affirm the decision granting summary judgment in favor of the defendants. I Ramsey was eligible for retirement at the end of the 1985-86 school year after teaching in the Whitley County school system for thirty years. In 1981, the Kentucky Legislature authorized local school boards to compensate retiring teachers for their accumulated unused sick leave days if the Board desired. See Ky.Rev.Stat.Ann. § 161.155(7) (Baldwin 1986). Kentucky allows teachers ten days of compensated sick leave per year. Ky.Rev. Stat.Ann. § 161.155(2) (Baldwin 1986). In 1956, when Ramsey began her employment with the school system, section 161.155 allowed a Kentucky teacher to carry forward only twenty days of unused sick leave unless the local school board authorized a greater number. In 1970, section 161.155 was amended, allowing sixty accumulated sick leave days, unless the local school board authorized a greater number. In 1974, section 161.155 was amended again, allowing a teacher to carry forward an unlimited number of sick leave days Ky. Rev.Stat.Ann. § 161.155(3) (Baldwin 1986). On April 11, 1985, the Board officially adopted the following policy and recorded it in its minutes: The Board of Education of Whitley County has not formally adopted the policy permitting the accumulation of unused sick leave days for each certified employee in the system in excess of the accumulation permitted by statute of the Commonwealth and no action of the said Board is recorded in the minutes maintained by the Board which provides for any accumulation in addition to the statutory amount. Therefore, following the statutory limitations, the maximum accumulation for purposes of the payments to be made under KRS 161.155(5) and the policy adopted by this Whitley County Board of Education shall be as follows: (a) Prior to June 18, 1970, any certified employee could have accumulated a maximum of twenty (20) days. (b) Prior to June 21, 1974, any certified employee could have accumulated a maximum of sixty (60) days (including the twenty (20) that could have been accumulated prior to June 18, 1970). (c) Accumulated unused sick leave days thereafter at the rate of not more than ten (10) per year for a maximum total of eleven years or one hundred ten (110) days makes the maximum available at the close of the 1984-85 school year to be a total of one hundred seventy (170) (including the sixty (60) that could have been accumulated prior to June 21, 1974). (d) Unused sick leave days will continue to accumulate at the rate of ten (10) per year in accordance with the present statutes of the Commonwealth of Kentucky and subject to change in accordance with any statutory changes. (e) The Whitley County Board of Education, acting by and through its appropriate employees, will verify the exact number of unused sick leave days available to each certified employee at the end of the 1984-85 school year in accordance with this policy and the Kentucky statute which it follows. Each teacher will be notified of the exact number of such accumulated sick leave days as of the end of the current school year which shall be the basis for payment of any benefits under this policy for the current school year and thereafter. Before adopting this policy in 1985, the Board had not officially authorized accumulation of any sick leave days beyond the minimum required by the statute. However, Whitley County school officials routinely recorded an employee’s total number of unused sick leave days accumulated over the course of employment on the employee’s sick leave cards. The cards were used by school officials to monitor the number of sick leave days acquired and used by each employee for every year of employment. The officials added the unused sick leave days at the end of each year onto the previous year’s accumulation. The resulting numbers were often in excess of the statutory máximums applicable prior to 1974. In accordance with this procedure, school officials recorded the total number of Ramsey’s accumulated sick leave days on her sick leave cards for the years she was employed in the school system. By the end of the 1983-84 school year, Ramsey’s cards indicated that she had 142 unused sick leave days. On June 27, 1985, the Board notified Ramsey that the number of her accumulated days had been reduced to 29 as a result of the Board’s adoption of its official sick leave policy on April 11, 1985. Ramsey filed suit against the Board in federal court claiming that the Board’s unilateral elimination of the 113 sick leave days she had accumulated over the course of her employment deprived her of property without due process of law. She also claimed the Board’s action violated the Kentucky Constitution and was a breach of her employment contract. Ramsey sought a court order that the Board restore her 113 days and pay the costs and attorney fees she incurred as a result of her lawsuit. After some discovery, both parties filed motions for summary judgment. The district court assumed Ramsey was correct in her contention that the Board implicitly had allowed her accumulated sick leave days to become part of her employment contract by recording total accumulated sick leave days in excess of the statutory máximums on her sick leave cards. Nonetheless, the court concluded that Ramsey’s claim only amounted to a simple breach of contract action based on a term of her employment contract and therefore, was not a deprivation of property actionable under 42 U.S.C. § 1983. Accordingly, the court granted the Board’s motion for summary judgment and dismissed the case. II Summary judgment is appropriate if, viewing the facts in the light most favorable to the party opposing the motion, there are no issues of material fact in dispute and the moving party is entitled to judgment as a matter of law “because the nonmoving party has failed to make a sufficient showing on an essential element of her case — ” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed. 2d 265 (1986). One essential element of an action under section 1983 is the existence of a constitutionally protected liberty or property interest. 42 U.S.C. § 1983 creates a federal cause of action for the deprivation of liberty and property interests protected by the United States Constitution or laws. See San Bernardino Physicians' Services Medical Group, Inc. v. County of San Bernardino, 825 F.2d 1404, 1407 (9th Cir.1987); accord Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). Thus, Ramsey must show she had a property interest in her accumulated sick leave days before she can establish that she was deprived of her interest without due process of law. As the Supreme Court has explained, property interests “are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law— rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. In a companion case to Roth, Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the Court supplemented this basic definition by acknowledging that constitutionally protected property interests can be created by either explicit or implied contractual terms stating, “[ejxplicit contractual provisions may be supplemented by other agreements implied from ‘the promisor’s words and conduct in light of the surrounding circumstances.’ ” Perry, 408 U.S. at 602, 92 S.Ct. at 2700 (quoting 3 A.Corbin on Contracts § 562). Accordingly, the fact that Ramsey’s claim to her accumulated sick leave days is not based on her written employment contract with the Board is not dispositive of the issue of whether she has a constitutionally protected property interest in those days. Construing the facts in the light most favorable to Ramsey, as we must do in this appeal of summary judgment against her, we hold that Ky.Rev.Stat.Ann. 161.155, as well as the recording of Ramsey’s accumulated sick leave days on her sick leave cards by Whitley County school officials, could have created a legitimate claim of entitlement by Ramsey to her accumulated sick leave days. Consequently, Ramsey could have a constitutionally protected property interest in those days and cannot be deprived of such interest without being afforded due process of law. Ill Determining that Ramsey has a property interest in her accumulated sick leave days does not resolve the question of what process is due, and particularly, the question of whether a federal cause of action is the appropriate remedy for her deprivation. Not every deprivation of liberty or property requires a predeprivation hearing or a federal remedy. See, e.g., Hudson v. Palmer, 468 U.S. 517, 536-37, 104 S.Ct. 3194, 3205-06, 82 L.Ed.2d 393 (1984). Determining what process is due in a given case requires consideration of a number of factors: the nature of the property interest involved (particularly its importance to the individual possessing it); the risk of an erroneous deprivation caused by inadequate procedures designed to safeguard the interest; the value, if any, that additional procedures might provide; and the state’s burden in having to provide additional procedures. Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976). When making this determination, the most important consideration to bear in mind is that the fundamental requirement of the Due Process Clause “is the opportunity to be heard and it is an ‘opportunity which must be granted at a meaningful time and in a meaningful manner.’ ” Parratt v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). As the Court’s decisions in Parratt and Hudson exemplify, in some cases due process is satisfied by the opportunity for hearing in state court after a deprivation of property has occurred. Parratt, 451 U.S. at 543-44, 101 S.Ct. at 1916-17; Hudson, 468 U.S. at 536-37, 104 S.Ct. at 3205-06. Thus, the Court has determined that a section 1983 action is not available when a state tort action provides an adequate remedy for a child spanked at school, Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); and for individuals claiming a deprivation of property caused by a state actor’s intentional conduct or negligence, see Hudson v. Palmer, 468 U.S. at 533, 104 S.Ct. at 3203; Parratt, 451 U.S. at 541-44, 101 S.Ct. at 1916-17; cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-37, 102 S.Ct. 1148, 1157-58, 71 L.Ed.2d 265 (1981) (state tort action was an inadequate remedy for a victim of employment discrimination because a successful action would not allow for reinstatement or sufficiently vindicate the victim’s right to be free from discriminatory treatment). Supreme Court decisions that state law provides an adequate remedy for a liberty or property deprivation have, to date, all involved deprivations which could be remedied by a state tort action for damages. However, a state breach of contract action may also provide an adequate remedy for some deprivations of a contractually created property interest. Therefore, the reasoning of those cases should also bar a section 1983 action when the deprivation is a simple breach of contract and there is adequate state breach of contract action available as a remedy. Other federal circuit courts considering this issue have noted that while some contractually created property interests are protected by a cause of action under section 1983, not every interference with a contractually created right does so, for “[i]t is neither workable nor within the intent of section 1983 to convert every breach of contract claim against a state into a federal claim.” San Bernardino Physicians’ Services Medical Group, Inc., 825 F.2d at 1408; accord Signet Construction Corp. v. Borg., 775 F.2d 486, 492 (2d Cir.1985); Sudeikis v. Chicago Transit Authority, 774 F.2d 766, 770 (7th Cir.1985); Brown v. Brienen, 722 F.2d 360, 364-65 (7th Cir.1983). A state breach of contract action is most clearly an adequate remedy for a property deprivation when the only basis for federal jurisdiction is that a state actor is one of the contracting parties. Accordingly, a claimed failure to pay for services provided by a construction contractor against a local school board, as in Signet, or a claimed breach of contract due to a unilateral termination of a four-year contract to provide health services to a county medical center, as in San Bernardino Physicians’ Services, is not only adequately remedied by a state breach of contract action, but far more appropriately remedied by such an action. This is because the state common law of contracts creates the property interest at stake and that same law determines what remedy lies for the deprivation caused by the breach of the contract. It may be more difficult to determine that a state breach of contract action provides an adequate remedy for a deprivation of some kinds of property created by a public employment contract. The Supreme Court has held repeatedly that the property interest in a person’s means of livelihood is one of the most significant that an individual can possess. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (collecting cases). Accordingly, because public employment contracts may involve a person’s livelihood, due process usually requires that a public employee be provided with some kind of a predeprivation procedure before that employee may be fired. See Loudermill, 470 U.S. at 542, 545-56, 105 S.Ct. at 1493, 1495-1501; accord Davis v. Scherer, 468 U.S. 183, 192 n. 10, 104 S.Ct. 3012, 3018 n. 10, 82 L.Ed.2d 139 (1984). Moreover, an action under section 1983 clearly lies if that predeprivation procedure is not provided. See, e.g., Findeisen v. North East Independent School District, 749 F.2d 234, 238-40 (5th Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2657, 86 L.Ed.2d 274 (1985).
10538381-21007	PER CURIAM. Plaintiffs brought an action in the district court for Minnesota challenging the constitutionality of the Minnesota Post-Secondary Enrollment Options Act. Minn. Stat. § 123.3514 (1986) (Act). The Act allows public high school students in their junior and senior years to take advanced courses at two- and four-year colleges, some of which are religiously affiliated. Minnesota reallocates funds from public schools to these colleges in proportion to the amount of course work done by public students at these colleges. The plaintiffs are the Minnesota Federation of Teachers (M.F.T.) and Richard Mans, the President of M.F.T. Their complaint alleges that the Act violates the establishment clause of the first amendment, and that it violates Minnesota’s Constitution. They request declaratory relief, as well as the enjoining of disbursements to religiously affiliated schools. The district court granted summary judgment for the defendants, holding that all the plaintiffs lacked standing. We reverse in part and affirm in part. I. BACKGROUND The Act permits any eleventh or twelfth grade public high school student to enroll for high school credit in nonsectarian courses offered at the post-secondary institution of his or her choice. The student is not required to pay for the course if the student is accepted by the institution, the course would count as credit toward graduation at that post-secondary school, and the course is taken only for high school credit. If these requirements are met, the state reimburses the institution in an amount equal to the lesser of: (1) the actual cost of tuition, textbooks, materials and fees at the college attended, or (2) the per-student funding normally provided to the student’s public high school, prorated by course units. Following completion of the course, the books and materials become the property of the student’s public school district. During 1985-86, 3,523 students statewide participated in the program, of which 230, or 6.52%, attended private colleges. In the following year, 2,182 students participated, of which 138, or 6.32%, attended private colleges. During the 1985-86 school year, between 12,000 and 13,000 courses were taken at post-secondary schools under the program. Affidavit of Jessie Modano, State Project Director, at 3 (July 29, 1987); Joint App. at 182-83. Reallocation may amount to approximately $200 per pupil unit. Deposition of Richard Mans at 20 (February 25, 1987); Joint App. at 121. II. DISCUSSION A. RICHARD MANS Richard Mans is the President of M.F.T. and a media teacher. He asserts several injuries. First, as a taxpayer, he protests the disbursement of tax money to sectarian schools. Second, he argues that the reallocation of funds reduces money available for his salary. Third, Mans relates that when one student left his class under this program the budget for his course was reduced, adversely affecting his remaining students and his teaching experience. The jurisdiction of federal courts is limited to “cases and controversies.” U.S. Const, art. III. One aspect of this limit is the determination of whether the plaintiff is the proper party to litigate the dispute. To have standing to sue, the Constitution requires that each plaintiff show both an injury in fact and that she deserves the protection of the statutory or constitutional provisions invoked. Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); cf. Fletcher, The Structure of Standing, 98 Yale L.J. 221 (1988). In addition, prudential concerns sometimes militate against granting standing to those seeking to assert either the rights of others or generalized social grievances, and those unable to litigate the merits with sufficient vigor to properly present the issues. Warth v. Seldin, 422 U.S. 490, 498-501, 95 S.Ct. 2197, 2204-06, 45 L.Ed.2d 343 (1975). Special rules have developed regarding types of plaintiffs and their claims. We address initially Mans’ claim to have state taxpayer standing. In this case, the district court concluded that to have standing Mans must show an increase in his overall tax burden from the challenged action, relying on Doremus v. Bd. of Educ., 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952) (state taxpayers denied standing). Since Mans could not prove that his taxes had been raised, the district court felt that he lacked standing to challenge the Act. We believe that the district court has misconstrued Doremus, and underap-preciated the import of other Supreme Court decisions. Initially, municipal taxpayers were thought to have suffered sufficient injury from improper local expenditures to have standing to challenge the expenditures, while federal taxpayers’ injury was considered too minute and indeterminable in relation to federal expenditures to sustain standing. Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). Standing rules for state taxpayers were not formalized until Doremus. Frothing-ham was subsequently re-evaluated in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Flast and its progeny establish that a federal taxpayer may sue to prevent the disbursement of tax money where the disbursement violates the establishment clause of the first amendment and where the disbursement is made pursuant to Congress’ power to tax and spend. Flast, 392 U.S. at 102, 88 S.Ct. at 1953. The district court recognized that under Flast only a disbursement of public funds was required, but felt that the injury analysis for state taxpayers was still analytically distinct. We begin by clarifying Doremus. In Doremus, state taxpayers challenged a law authorizing public school teachers to read aloud from the Bible. The Supreme Court held that they lacked standing because they could not show how mandatory Bible-reading was “supported by any separate tax or paid for from any particular appropriation or that it adds any sum what ever to the cost of conducting school.” Doremus, 342 U.S. at 433, 72 S.Ct. at 397 (emphasis added). The district court incorrectly interpreted this language to require that Mans show an increase in his tax bill. Doremus, however, clearly indicated that an increase in the plaintiffs tax burden was only one way injury could be shown. As the language above indicates, the Court believed that direct expenditures would also suffice. The plaintiffs in Doremus were denied standing because they failed to connect any state expenditures to the challenged action. Id. at 434, 72 S.Ct. at 397. Moreover, the Court in Doremus was careful to distinguish Everson v. Bd. of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). In Everson, a state taxpayer challenged public expenditures for the transportation of parochial school children. The Doremus Court described the dispute in Everson as justiciable because “Everson showed a measurable appropriation or disbursement of school-district funds occasioned by the activities complained of. This complaint does not.” Doremus, 342 U.S. at 434, 72 S.Ct. at 397. Everson also indicated that the establishment clause limits state spending powers as well. Everson, 330 U.S. at 16, 67 S.Ct. at 511. Thus, the effect of Flast was to harmonize in some respects federal and state taxpayer standing. Flast, 392 U.S. at 102, 88 S.Ct. at 1953. Other Supreme Court decisions support the view that Doremus only requires a measurable expenditure of tax money, and indicate that Flast and Doremus are now relied on interchangeably where establishment clause violations are urged. On the same day Doremus was decided, the Court handed down Adler v. Bd. of Educ., 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952). In Adler, a state law required the dismissal of any public school teacher who belonged to a subversive organization. Justice Frankfurter dissented, arguing that the Court lacked jurisdiction because the plaintiffs lacked standing. With respect to the taxpayer-plaintiffs, Frankfurter argued that under Doremus they did not have standing because the taxpayers could not show that their tax burden would be increased. Adler, 342 U.S. at 501-02, 72 S.Ct. at 389 (Frankfurter, J., dissenting). The other eight justices ignored Justice Frankfurter’s arguments and reached the merits. In Chambers v. Marsh, 675 F.2d 228 (8th Cir.1982), we relied on Flast in holding that Chambers had standing as a state taxpayer. The Supreme Court affirmed on standing, writing: “[W]e agree that Chambers, as a member of the legislature and as a taxpayer whose taxes are used to fund the chaplaincy, has standing to assert this claim.” Marsh v. Chambers, 463 U.S. 783, 786 n. 4, 103 S.Ct. 3330, 3333 n. 4, 77 L.Ed.2d 1019 (1983). No showing of an increased tax burden was ever made, nor did our reliance on Flast meet with disapproval. The only case relied on by the district court for its view of Doremus, is Hoohuli v. Ariyoshi, 741 F.2d 1169 (9th Cir.1984). Hoohuli, however, does not hold that an increase in the plaintiff's tax burden is required. In fact, that court noted that the injury analysis required under Flast and Doremus was the same. Id. at 1179. Hoohuli found standing because the plaintiffs attacked specific disbursements and requested the money be returned to the state treasury. Id. at 1172, 1180. Our interpretation of Doremus is buttressed by the fear that the district court’s decision could lead to the abolition of taxpayer standing altogether. Where a free exercise of religion injury is alleged, plaintiffs can argue that an activity they distinctly wish to engage in has been restricted. But only a taxpayer really suffers a distinct injury from the improper use of public money in violation of the establishment clause. The district court’s view would allow standing only where a special tax assessment was levied to pay for the expenditure. Thus, when expenditures are made from general funds, no one would be able to challenge establishment clause violations. We believe that taxpayer standing was created to specifically permit the airing of establishment claims, and we decline to effectively abolish it. Accordingly, we do not believe that state taxpayers are required to show an increase in their tax burdens to allege sufficient injury. Under applicable law, state taxpayers must only show that there has been a disbursement of tax money in potential violation of constitutional guarantees. Richard Mans has met this burden and has standing to challenge the Act. B. MINNESOTA FEDERATION OF TEACHERS M.F.T. asserts two forms of standing. First, M.F.T. claims standing as a representative of its 17,000 dues-paying members who are primarily elementary and secondary public school teachers. Second, M.F.T. asserts standing on its own behalf because the reallocation of funds reduces the amount of funds available to school districts. The Act could thus reduce the number of teachers paying dues because teachers can be terminated for “[djiscontin-uance of position or lack of pupils.” Minn. Stat. § 125.17 Subd. 4(5) (1979). In addition, M.F.T. argues that reallocation reduces the pool of money available for teacher salaries, damaging M.F.T.’s position in contract negotiations. Deposition of Edward Bolstad at 33 (February 25, 1987); Joint App. at 168. “[I]n the absence of injury to itself, an association may have standing solely as the representative of its members.” Warth, 422 U.S. at 511, 95 S.Ct. at 2211. The Supreme Court has listed three prerequisites to representational standing. First, the members of the organization must otherwise have standing to sue in their own right. Second, the interests which the organization seeks to protect must be germane to its purpose. Third, neither the claim asserted, nor the relief requested, can require participation of the organization’s individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). This court has previously noted that each of these three requirements must be met in order to establish representational standing. Associated General Contractors v. Otter Tail Power Co., 611 F.2d 684, 690 (8th Cir.1979). Here, there is no doubt that many of the members of M.F.T. are possibly injured as taxpayers. Furthermore, individual participation to adjudicate the establishment claim is unnecessary. .The only issue requiring closer analysis is whether the interests which M.F.T. seeks to protect in this dispute are germane to M.F.T.’s purposes. In this case, the interest ultimately at stake are M.F.T.’s members’ interests in the use of their tax money to support sectarian schools. Although it is discernable from the complaint and other parts of the record that M.F.T. seeks to assert representational standing and that its members are allegedly injured as taxpayers, nothing in the complaint or record demonstrates how these taxpayer interests are germane to the organization’s specifically stated purposes. See Associated General Contractors, 611 F.2d at 691. Furthermore, M.F.T.’s charter fails to mention any interest in taxes. Cf. International Union, UAW v. Brock, 477 U.S. 274, 286, 106 S.Ct. 2523, 2530, 91 L.Ed.2d 228 (1986) (holding that there was little question that the UAW’s interests which it sought to protect were germane to the organization's purposes because the constitution of the UAW announced goals which clearly established those interests). M.F.T. is not an organization of taxpayers. The fact that some or all of its members pay taxes is purely incidental. We, therefore, conclude that an insufficient nexus exists between the purposes and activities of M.F.T., a teachers’ union, and the tax money concerns expressed in the complaint and record to satisfy the second portion of the Hunt test of representational standing. M.F.T. also asserts organizational standing in its own right, claiming as its injury the potential threat of lost membership and dues. The district court concluded that M.F.T. failed to allege any injury directly caused by the Act. We agree that the fear of possible injury and M.F.T.’s philosophical concerns are insufficient to satisfy the requirement of the standing doctrine that plaintiffs demonstrate a judicially cognizable injury. See Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. M.F.T. has not satisfied the requirements for either representational standing or organizational standing. Accordingly, we affirm the district court’s dismissal of M.F.T.’s claims for lack of standing. III. CONCLUSION Based on the foregoing reasons, we hold that M.F.T. lacks both representational and organizational standing, and thus we affirm that portion of the district court’s opinion. We also hold that Richard Mans has taxpayer standing to challenge the Act because the complaint sufficiently alleges that the Act may expend public funds in violation of the establishment clause. We reverse the portion of the district court’s judgment which denies standing to Richard Mans and remand the case for proceedings consistent with our opinion. . Unfortunately, neither party developed the relevant statistics. On the basis of these figures, it appears that there was a reallocation of funds statewide of $2,400,000.00 ($200 x 12,000 courses) in 1985-86. Assuming roughly 6.5% of the course work was done at private colleges, the reallocation to private schools, sectarian and nonsectarian, was about $156,000 statewide that year. We are hesitant to rely on these figures, however, because the $200 estimation appears speculative. Moreover, we do not know if "per pupil unit" and per course are the same measure. If they are not, then the true figures are higher. . Flast required a nexus between the plaintiffs' status and the power invoked by Congress, and a further connection between the power invoked by Congress and a specific constitutional limit on that power. Flast, 392 U.S. at 102-03, 88 S.Ct. at 1953-54. Flast found such a relationship between a taxpayer and the tax and spend power, and the tax and spend power and the prohibition against government financial aid to religious organizations embodied in the estab-Iishment clause. Subsequent cases leave the precise scope of Flast uncertain. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (standing to challenge executive decisions); Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (no standing to challenge disbursement made pursuant to property administration powers). . More recently, we have again required only a measurable disbursement of state funds. Pulido v. Bennett, 848 F.2d 880, 886, modified, 860 F.2d 296 (8th Cir.1988). In Pulido, we referred to Doremus and Grand Rapids School Dist. v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985). Grand Rapids considered the merits of a state taxpayer suit against a program aiding private schools. The Court noted in a footnote that the lower courts had properly decided the taxpayers had standing. Grand Rapids, 473 U.S. at 380 n. 5, 105 S.Ct. at 3220 n. 5. The cases cited in that footnote where state taxpayer standing was found, in turn analyze standing under Flast, as had the district court in that case. Americans United for Separation of Church and State v. Grand Rapids School District, 546 F.Supp. 1071, 1075 (W.D.Mich.1982). . In addition, the Hoohuli court indicated that it was guided in its analysis by Public Citizen, Inc. v. Simon, 539 F.2d 211 (D.C.Cir.1976) (federal taxpayers), which viewed the injury required as only a conceptual necessity. “The impact on federal taxpayers in such cases is conceptually direct, even though the dollar-and-cents consequence for a taxpayer is minimal.” Id. at 218. The Hoohuli court thought only that there might be a difference between state and federal taxpayer standing in deciding whether executive or administrative decisions were constrained. Hoohuli, 741 F.2d at 1180 (relying on Public Citizen). The Supreme Court has since indicated that there is no such distinction. Kendrick, 108 S.Ct. at 2562; see also Pulido, 860 F.2d at 297. . We are thus even less disposed to favor the state’s further request. The state urges us to add to the district court's test the necessity of showing that the complained of injury would be redressed by a favorable decision. Thus, according to the state, a taxpayer could only have standing if she could show an increased tax burden, and prove that her taxes would be lowered if she prevails. The State relies on Valley Forge, 454 U.S. at 464, 102 S.Ct. at 752, which denied the plaintiff standing to challenge the transfer of government property to a religious organization pursuant to the government’s property powers. While Valley Forge discussed the concept of redressability in its introduction, Id. at 472, 102 S.Ct. at 758, Valley Forge did not make redressability an element of taxpayer standing. We decline to do so in light of the foregoing discussion. See also, Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 1120, 71 L.Ed.2d 214 (1982) (only constitutionally required inquiry is whether there is an "injury in fact.”); Warth, 422 U.S. at 514, 95 S.Ct. at 2213. . Mans’ other asserted individual injury is decreased job satisfaction. The law recognizes noneconomic injuries, but requires a direct and specific injury to such interests. United States v. SCRAP, 412 U.S. 669, 686-87, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973); Data Processing, 397 U.S. at 154, 90 S.Ct. at 830. In light of our holding that Mans has taxpayer standing, we need not decide whether his other assertions would also support individual standing. . The complaint recites in part: 4. Plaintiff Minnesota Federation of Teachers is a labor organization affiliated with the American Federation of Teachers, AFL-CIO, and serves approximately 17,000 dues paying members who primarily are elementary and secondary public school teachers throughout the State of Minnesota. 5. Plaintiff Richard M. Mans is a taxpayer and the President of the Minnesota Federation of Teachers. Joint App. at 7. See also Affidavit of Richard Mans (April 20, 1987), Joint App. at 179 (taxpayer status); Deposition of Richard Mans at 7-8 (February 25, 1987), Joint App. at 108-09 (M.F.T.’s interest is in the diversion of money from public education). . The dissent cites Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975) for the proposition that an allegation by M.F.T. that its members are taxpayers is, by itself, sufficient to confer representational standing. We disagree. Hunt, 432 U.S. at 343, 97 S.Ct. at 2441, decided subsequent to Meek, requires the three part representational analysis, discussed on page 1358, supra, even when it is alleged that member taxpayers seek to enjoin, as here, the expenditure of tax funds. Thus, M.F.T. fails the relevant test because of a lack of nexus between the tax expenditures and the stated purposes of the teachers union.
3080569-19381	OPINION COOPER, District Judge. Defendant moves to suppress certain statements and items of real evidence pursuant to Rule 41(e), F.R.Crim.P. on the ground that his rights under the Fourth and Fifth Amendment have been violated. On October 29, 1969 a hearing was held by v. to determine the facts applicable to relief sought. Both sides were content to rest on the testimony of the Government’s one witness, Postal Inspector Shatzel. He testified that at about 5:30 A.M. on Saturday, May 17, 1969, while at the Centuck Post Office where defendant worked, he inspected the bin allotted to defendant and found certain mail (bonus coupons) therein which did not belong on defendant’s route. From the elevated observation gallery inside the post office, Shatzel observed defend ant arrive at about 6:45 A.M. and then, in addition to removing the mail sorted for his own route, remove bonus coupons from the mail clearly sorted for other carrier routes. Shatzel testified that defendant placed these bonus coupons in a sack at the bottom of his mail hamper, then packed his regular mail which he put in other sacks and in turn also placed in his hamper. Shatzel next saw defendant leave and get into his private car parked in a supermarket lot across the street. He watched defendant park the car in front of the post office, return inside, wheel his mail hamper (containing both the mail for his route and the sack of bonus coupons) to the car, open the trunk and place all of the sacks of mail inside. After returning the mail hamper, defendant drove off. At about 10:00 A.M. and again at about 11:00 A.M. that same day Shatzel observed defendant delivering mail on his route. At about 2:00 P.M. Shatzel, unable to find defendant on his route, drove past defendant’s home and saw defendant’s car backed into his driveway. Shortly after 3:00 P.M. Shatzel, parked in the supermarket parking lot across from the post office, observed defendant park his car in that lot and proceed to the post office. Shatzel was in two-way radio contact with an Inspector Zekas, located in the observation gallery of the post office. At about 3:30 P.M. Shatzel saw defendant leave the post cf. fice and walk to his car. As defendant opened the car door and started to get in, Shatzel, walking toward defendant’s car and about ten feet away, hailed defendant by name. Shatzel identified himself to defendant and showed defendant his commission, a wallet-sized identification card. He then told defendant to step out of the car. As defendant complied, Shatzel bent over and looked into the back seat of the car. Seeing nothing Shatzel asked defendant, “Will you open v. the trunk of your car ?” Defendant did so. As he did, Inspector Zekas arrived from the post office. Shatzel testified that as they were opening v. the trunk of the car defendant said to him, “What are you looking for?”; that he replied, “I’m looking for coupons”; and that defendant then responded, “Yes, I know, they’re at home.” Shatzel said that he noticed a small boy (whom he assumed to be defendant’s son) seated in defendant’s car evidently waiting for defendant. Following defendant’s admission, Shatzel, standing by the car trunk with defendant and Inspector Zekas, motioned toward the boy and said to defendant, “I don’t want to cause you any embarrassment. Will you go home and get these envelopes for me and bring them back to the station.” In response, defendant “either said yes or he nodded.” Shatzel then told defendant that he would follow him home and back at a “safe” distance of about a city block. Again, defendant either said yes or nodded affirmatively. Defendant got into his car and proceeded home. Shatzel and Zekas followed in their car, keeping defendant’s car in sight at all times. When they reached defendant’s house the inspectors parked so that they kept a portion of defendant’s car in view. The inspectors then followed defendant back to the post office. Shatzel testified that the purpose of following defendant was “to see that he would come back.” At the post office, defendant got out of his car with the sack of coupons and walked into the station with Shatzel. They proceeded to an office where defendant was duly advised of his constitutional rights. Defendant signed a waiver of those rights and thereafter initialed the retrieved bonus coupons and admitted orally and in writing that he took the coupons to convert them to his own use. After Shatzel discussed de fendant’s arrest with the United States Attorney’s office, defendant was allowed to go home for the balance of the weekend and told to report on Monday morning for his arraignment. The issues herein are whether defendant was entitled under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) to a warning of his constitutional rights prior to the time he received such warnings at the post office, and, if so, whether defendant is entitled to suppression of the bonus coupons he retrieved and of the statements he made to the officers. When the Miranda Warnings Are Required In Miranda v. Arizona, supra the Supreme Court held that unless warnings effective to secure the privilege against self-incrimination have been given and such rights knowingly and intelligently waived, no evidence obtained as a result of custodial interrogation (questioning initiated by a law enforcement officer after a person is deprived of his freedom of action in any significant way) may be used by the prosecution. General on-the-scene questioning by officers as part of the fact-finding process is not necessarily custodial interrogation. Likewise, volunteered statements are not affected by Miranda. In its subsequent decision in Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) the Supreme Court laid to rest any argument that Miranda might be limited to interrogation at the police station, emphasizing that the warnings are required whenever the person being interrogated is “deprived of his freedom of action in any significant way.” The Second Circuit has recently defined this test more precisely in United States v. Hall, 421 F.2d 540 (2d Cir. December 15, 1969). That decision rejects the contention that (as in Escobedo) Miranda warnings are required whenever an investigation has “focused” on a particular suspect. Miranda’s test of “custodial interrogation” as the point at which warnings are required resulted from concern that the atmosphere of such interrogation would have an inherently coercive effect on the person being questioned. Accordingly, our Circuit reasoned that the test of custody or significant restraint on liberty must be an objective one, and can neither depend upon the officer’s inner intentions nor upon the suspect’s subjective perceptions. “Some affirmative action by the authorities other than polite interrogation” is required. United States v. Hall, supra. As to the additional affirmative action that is necessary: “* * * [I]n the absence of actual arrest something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so. This is not to say that the amount of information possessed by the police, and the consequent acuity of their ‘focus,’ is irrelevant. The more cause for believing the suspect committed the crime, the greater the tendency to bear down in interrogation and to create the kind of atmosphere of significant restraint that triggers Miranda, and vice versa. But this is simply one circumstance, to be weighed with all the others.” Id. The First Admission Applying these principles to the instant facts, we turn first to defendant’s initial admission that the bonus coupons were at his home. At the outset, we do not believe that the absence of Miranda warnings prior to defendant’s initial admission can be justified by the simple expedient of terming this “on-the-scene questioning.” This was not simply routine inquiry, after the officer’s suspicions are aroused, made at the scene as part of the fact-finding process as was the case in United States v. Thomas, 396 F.2d 310 (2d Cir. 1968); United States v. Gibson, 392 F.2d 373 (4th Cir. 1968); Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476 (1968); Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969). The officers here had scant doubt, if any, that within their sight a crime had been committed by this defendant. Their primary purpose in approaching defendant was ,to nail down tangible supportive evidence of this fact. Nevertheless, defendant may not suppress this admission on the ground it was made before the Miranda warnings were given. This admission by defendant was volunteered and did not come as a result of any interrogation; furthermore, even assuming some “polite interrogation,” there was no additional affirmative action by the officer at this point which, viewed objectively, would indicate to defendant that he would not be permitted to leave and, thus, there was no “coercive atmosphere.” See United States v. Hall, supra. Inspector Shatzel’s requests that petitioner get out of his car and open his trunk did not constitute interrogation. It was petitioner who initiated the questioning by asking, “What are you looking for?” The Inspector replied, “I’m looking for coupons,” but did not question defendant. Defendant then volunteered the admission, “Yes, I know, they’re at home.” While this is certainly closer to interrogation than the immediate spontaneous admission in Amass v. United States, 413 F.2d 272 (2d Cir. 1969), we believe defendant’s statement here was volunteered and thus not affected by Miranda. See Miranda v. Arizona, supra, 384 U.S. at 478, 86 S.Ct. 1602, 16 L.Ed.2d 694. In any event, we find that the atmosphere surrounding this admission was not coercive from the standpoint of the defendant. The officers were at all times courteous and considerate of defendant. There was no “bearing down” on him. The mere existence of this considerable evidence brought home to Inspector Shatzel, and which clearly established probable cause to believe defendant had embezzled from the United States mails, does not compel a determination that defendant had to be given his Miranda warnings at the time of his initial admission. See Lowe v. United States, supra, 407 F.2d at 1396; Hoffa v. United States, 385 U.S. 293, 309-310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). While the officers actually did possess overwhelming evidence of defendant’s guilt as a result of Inspector Shatzel’s investigation and personal observations, defendant was not then aware of the extent of incriminating information already known to them. Defendant was not under arrest. See United States v. Thomas, 396 F.2d at 313. The fact that the officers may have then had an unexpressed intention to detain defendant and restrain his freedom of action is not controlling. See Williams v. United States, 381 F.2d 20, 22 (9th Cir. 1967); United States v. Hall, supra; Lowe v. United States, supra; Allen v. United States, supra, 390 F.2d at 479 n. 3. There was, as of yet, no reason for him to believe himself significantly restrained and not free to depart on request. See United States v. Hall, supra. Accordingly, defendant’s motion to suppress his initial admission is denied. The Physical Evidence Once defendant volunteered that the bonus coupons were at his home, defendant knew (having supplied the police with this information) that the officers were aware of his crime. It was under these circumstances that the officers, without advising defendant of his constitutional rights, sought and obtained defendant’s agreement to return to his home and retrieve the conclusively incriminating mail for them in order to avoid embarrassing defendant in front of his family. We believe that at this point defendant was in custody and, by any objective standard, well aware that he was not free to depart upon request. Among other pieces of evidence, we are confirmed in this finding by the fact that after defendant acceded to the inspector’s request that he go home and bring back the coupons, the inspector informed him that he would follow him home and back, a course which the two inspectors did pursue, in order to be certain that defendant would return. This was not mere police surveillance of one left to go where he wanted. Compare United States v. Hall, supra. This involved actual restraint on defendant’s freedom of action. In Government of Virgin Islands v. Berne, 412 F.2d 1055, 1056-1060 (3rd Cir. 1969), a case which raised problems quite similar to ours in many respects, that Court summarized its relevant facts as follows: “[Tjhere was no evidence of the application of force or intimidation, physical or psychological, actual or implied. There was nothing more than a brief inquiry by the police followed immediately by an affirmative response from the subject. This, in turn, was followed by the physical delivery of the evidence to the police. The defendant himself characterized the entire incident as ‘civil.’ ” Id. at 1060. Upon these factors the Third Circuit concluded that the defendant therein was not deprived of his freedom of action in any significant manner and, thus, that the Miranda warnings were not then required. Id. The Third Circuit’s summary of the facts in Berne is equally applicable here. The distinction, however, is that in Berne the officers did not arrest that suspect or restrain him in any way even after he supplied them with the physical evidence. With the items in hand the police proceeded to the police station and permitted Berne to return to his home alone. Here defendant was neither free to depart upon request nor unaware of the restraint on his freedom of action; certainly at this point enough had taken place to make him apprehensive that his arrest was imminent. While defendant’s initial admission was volunteered, his agreement to retrieve the bonus coupons came as a result of custodial interrogation, however brief. Defendant was asked to obtain the mail matter after substantial restrictions were placed on his freedom of action and without having been advised of his constitutional rights mandated by Miranda. Thus, we are faced with the very difficult issue of whether the absence of Miranda warnings renders defendant’s consent invalid where he was in custody at the time of his agreement to retrieve the bonus coupons. See Consent Searches : A Reappraisal After Miranda v. Arizona, 67 Colum.L.Rev. 130, 146-148 (1967). Miranda v. Arizona, supra required warnings as to the Fifth and Sixth Amendment rights in order to counteract the pressure toward self-incrimination inherent in the setting of custodial interrogation. In the context of a search consented to by the mother of a suspect the Second Circuit has held that failure to give warnings as to Fourth Amendment rights does not render a search invalid per se and that the courts may still find valid consent absent such warnings. See United States ex rel. Combs v. LaVallee, 417 F.2d 523, 525-526 (2d Cir. 1969). Since in Combs there was no custody and the consent was given by the suspect’s mother, the Court was not faced with a failure to give the Miranda warnings. In Combs, our Circuit cited with approval the First Circuit decision in Gorman v. United States, 380 F.2d 158 (1st Cir. 1967), which did involve failure to warn a suspect. The First Circuit rejected any contention that an accused need be separately warned of his Fourth Amendment rights. They reasoned that there was no need to single out consent searches as requiring a second warning system because the risks covered by the initial Miranda warnings are not of a different nature from the self-incrimination which may follow from giving consent to a search. The First Circuit clearly relies upon the fact that the basic Miranda warnings had already been given the suspect when, during the interrogation voluntarily submitted to, he consented to the search. See also, Government of Virgin Islands v. Berne, supra, 412 F.2d at 1060-1062 and n. 7. We have no such prior warning here. Our question is not whether separate and additional Fourth Amendment warnings are required; rather, whether where the person is in custody the absence of the Miranda warnings is a fatal defect in proving consent. The possibility that a consent to a search by a person in custody may be “invalid in the absence of warnings similar to those required by Miranda” was recognized by our Circuit in United States ex rel. Lundergan v. McMann, 417 F.2d 519, 521 (2d Cir. 1969). This issue was not resolved, however, because Lundergan was proceeding by collateral attack and the Court did “not expect that any such ruling would be made applicable to a case where the conviction had already become final.” Id. at 521. In Government of Virgin Islands v. Berne, 412 F.2d at 1059, the Third Circuit resolved the issue confronting v. as follows: “Thus, there is logical and rational support for appellant’s assertion that the safeguards associated with Miranda should also be applied to those situations where the legality of a warrantless search and seizure is justified on the basis of the accused’s consent. If the validity of the search is conceived in the communicative assent of the accused, then the vice of self-incrimination is not dissipated because the search produces physical, as opposed to testimonial, evidence. Under such circumstances, the vitality of Fourth Amendment rights are critically dependent on the protective armor of the privilege against self-incrimination.” Id. at 1059. We take strength from this reasoning. The practice of having a defendant who has admitted a crime also gather the tangible incriminating evidence, even though probable cause for the issuance of a search warrant is clearly evident, has long been subject to much abuse. Once a suspect is in custody, Miranda holds that certain compulsions inherent in that position make it only fair that he should be made “more acutely award * * * that he is not in the presence of persons acting solely in his interest” in order to prevent involuntary self-incrimination. Whether that incrimination takes the form of a confession or the frequently far more damaging consent to produce the tangible goods in question should not determine the necessity of advising the suspect who is in custody of his rights made imperative by Miranda. Implicit in the Fifth and Sixth Amendment warnings given a suspect is the message that an accused need not accede to the request of his interrogators and furnish them with any evidence against himself. See Gorman v. United States, supra, 380 F.2d at 164. Accordingly, the bonus coupons must be suppressed. The.Confession Immediately after defendant returned from his home to the station with the bonus coupons in hand, the cf. ficers gave him the Miranda warnings and he signed a waiver of those rights. He then confessed orally and in writing to taking the coupons. Now we are confronted by the question as to whether defendant’s confession was sufficiently insulated by virtue of the Miranda warnings from the taint of the illegally obtained coupons so that we might hold these statements voluntary. Cf. Mapys v. United States, 409 F.2d 964, 966 (10th Cir. 1969); United States v. Gorman, 355 F.2d 151, 157 (2d Cir. 1965).
4260774-27612	OPINION AND ORDER JOHN G. KOELTL, District Judge: The plaintiffs, Thomas D. Woodhams and Charlene Connors, bring this purported class action asserting several causes of action against the defendants, Alstate Insurance Company (“Alstate Insurance”), Alstate Indemnity Company (“Alstate Indemnity”), Alstate Property & Casualty Insurance Company (“Alstate Property”), and Alstate Fire and Casualty Company (“Alstate Fire”) (collectively, “Alstate” or “the defendants”). A1 of the plaintiffs’ claims arise out of Alstate’s alleged practice of requiring that insured property owners suffering real property losses due to fire replace or complete repairs of insured property within a 180-day window in order to receive reimbursement for the cost of replacement or repair, an amount that would be higher than the actual cash value of the damaged property. Wood-hams and Connors suffered an insured fire loss in 2007 but, because they could not complete repairs within 180 days, were denied replacement cost coverage. The plaintiffs’ complaint alleges eight causes of action. Count I seeks the return of a pro-rated portion of the plaintiffs’ premiums. Count II alleges a breach of the initial insurance contracts. Count III requests a declaratory judgment. Count IV alleges a breach of contracts settling plaintiffs’ claims. Count V alleges fraud. Count VI alleges a breach of the implied covenant of good faith and fair dealing. Count VII claims that Alstate owed the plaintiffs a fiduciary duty, which it allegedly breached. Count VIII requests relief under New York General Business Law (“GBL”) section 349, which prohibits deceptive business acts and practices. Each of these claims, to one degree or another, relies on the plaintiffs’ assertion that the 180-day completion requirement is prohibited by New York Insurance Law (“NYIL”) section 3404, which sets minimum terms and provisions for fire insurance policies. The plaintiffs also claim that the 180-day completion requirement is inconsistent with the terms of the insurance contracts, and that Alstate misleadingly offered policies promising replacement or repair coverage while knowing that the 180-day completion requirement would bar most losses from coverage. The plaintiffs brought their action in the New York State Supreme Court, New York County. The defendants subsequently removed the action pursuant to the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. § 1332(d), and now move to dismiss the plaintiffs’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or for judgment on the pleadings pursuant to Rule 12(c). They argue principally that the 180-day completion requirement is not contrary to law and that the filed rate doctrine bars the court from ordering refunds of portions of the plaintiffs’ premiums. They also argue that the 180-day completion requirement is consistent with all relevant contracts and that none of Alstate’s communications were deceptive or misleading, and that the plaintiffs failed to plead fraud with particularity, in violation of Federal Rule of Civil Procedure 9. Finally, Alstate Fire and Alstate Property argue that the plaintiffs lack standing to sue them, because the plaintiffs never contracted with Alstate Fire or Alstate Property. I. A. In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true and all reasonable inferences must be drawn in the plaintiffs’ favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995). The Court should not dismiss the complaint if the plaintiffs have stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id.; see also SEC v. Rorech, 673 F.Supp.2d 217, 221 (S.D.N.Y.2009). The standards to be applied to a motion pursuant to Rule 12(c) are the same as those applied to a motion pursuant to 12(b)(6). See, e.g., Cleveland v. Caplaio Enters., 448 F.3d 518, 521 (2d Cir.2006). In deciding the motion, the Court may consider documents that are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that either are in the plaintiffs’ possession or were known to the plaintiffs when they brought suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993). B. The following facts are undisputed, unless otherwise noted. Allstate Fire, Allstate Indemnity, and Allstate Property are each subsidiary companies of Allstate Insurance. (Compl. ¶ 12-13.) Allstate sells property insurance policies in New York that cover, among other things, damage due to fire. (Id. ¶ 1.) In the early 1990s, Allstate allegedly sought to increase its profits by reducing the number and amount of claims it paid out. (Id. ¶¶ 21-28.) In furtherance of this goal, it changed the language in its property damage policies regarding coverage of replacement or repair costs. Prior to the change, the language read: If you decide not to repair or replace the damage[d] property, settlement will be on an actual cash value basis, not to exceed the limit of liability applicable to the building. You may make claim within 180 days after the date of the loss for any additional payment on a replacement cost basis if you repair the damaged property. (Id. ¶ 30.) The plaintiffs point out that this language only required a policyholder to make a claim for this additional replacement cost coverage within 180 days of the date of loss. It did not require that repairs be completed within any period of time. In the mid-’90s, Allstate revised this policy to state the following: If you do not ... repair or replace the damagefd] building structure, payment will be on an actual cash value basis .... You may make claim for additional payment ... if you repair or replace the damaged, destroyed, or stolen covered property within 180 days of the actual cash value payment. (Id. ¶32.) The policy also stated that “[w]hen the policy provisions conflict with the statutes of the state in which the residence premises is located, the provisions are amended to conform to such statutes.” (Sisson Decl. Ex. B at 4.) The New York State Insurance Department (“NYSID”) approved this language in 1994. (Wittman Decl. Exs. A, C.) Since then, Allstate has issued policies with this language. (Compl. ¶ 34.) Although NYSID rejected a revised form that Allstate submitted in 2009, because of the 180-day completion requirement, the complaint does not allege that NYSID ever withdrew the approval issued in 1994. (Id. ¶¶ 56-60, Ex. C.) Allstate interpreted its language to require that repairs or replacements be completed within 180 days of the date that it paid claimants the actual cash value of the covered property. (Id. ¶¶ 35-37.) Thus, under Allstate’s interpretation, Allstate’s policies entitle its insured to both the actual cash value of the insured property and, if repairs or replacements were completed within 180 days of the actual cash value payment, the cost of repair or replacement. (Certain exclusions that are irrelevant here also apply.) Allstate allegedly failed to disclose and, according to the complaint, “intentionally obscured and concealed” the terms of its replacement cost coverage. (Id. ¶¶ 35, 64-66.) The plaintiffs allege that Allstate has a “policy and practice” of “refusing] to allow its agents to provide to prospective purchasers copies of its policies where they would learn the precise terms and conditions of the coverage they are seeking to purchase,” and that “Allstate does not send a copy of the policy of insurance to the insured until well after the insured has paid the premiums.” (Id. ¶¶ 64-65.) Attached to the complaint is a printout of a summary of Allstate’s property insurance offerings taken from Allstate’s website. (Id. Ex. B.) The website states that Allstate’s policies can cover repair or replacement costs, not to exceed 120% of applicable coverage limits, accompanied by a disclaimer that “all coverages are subject to availability and qualifications. Other terms, conditions and exclusions apply .... Please read your Allstate policy for full coverage details.” (Id. Ex. B at 2-4.) C. Woodhams and Connors suffered an insured fire loss on January 6, 2007, to real and personal property that was insured by Allstate Indemnity. (Id. ¶ 67, Sisson Decl. Ex. A.) Because Woodhams and Connors were unable to obtain a building permit for six months, and because of a road construction project, they were unable to complete construction within the 180-day replacement period, and Allstate refused to pay over $58,000 in replacement costs. (Compl. ¶ 67.) In support of its class allegations, the complaint cites similar occurrences involving nine unnamed Allstate insureds. (Id. ¶¶ 68-76.) II. The defendants argue that the above facts fail to state a claim, and therefore move for dismissal under Federal Rule of Civil Procedure 12(b)(6) or for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Although they argue against each count of the complaint individually, each count turns to some degree on the same two questions: whether Allstate’s 180-day completion requirement is inconsistent with NYIL § 3404, and whether the requirement is inconsistent with the language of the Allstate policies themselves. Before addressing the plaintiffs’ individual claims, these issues will be analyzed at the outset. A. New York law sets out a standard fire insurance policy, which provides that insured parties shall be entitled to “THE LESSER AMOUNT OF EITHER 1) THE ACTUAL CASH VALUE OF THE PROPERTY AT THE TIME OF THE LOSS, OR 2) THE AMOUNT WHICH IT WOULD COST TO REPAIR OR REPLACE THE PROPERTY WITH MATERIAL OF LIKE KIND AND QUALITY WITHIN A REASONABLE TIME AFTER SUCH LOSS, WITHOUT ALLOWANCE FOR ANY INCREASED COST OF REPAIR OR RECONSTRUCTION BY REASON OF ANY ORDINANCE OR LAW REGULATING CONSTRUCTION OR REPAIR, AND WITHOUT COMPENSATION FOR LOSS RESULTING FROM INTERRUPTION OF BUSINESS OR MANUFACTURE, OR 3)TO AN AMOUNT NOT EXCEEDING _DOLLARS .... NYIL § 3404(e). Policies covering the peril of fire in New York must either conform to the standard fire policy, or be approved by NYSID and “contain], with respect to the peril of fire, terms and provisions no less favorable to the insured than those contained in the standard fire policy.” Id. § 3404(b)(1), (f). See generally SR Intern. Bus. Ins. Co. v. World Trade Center Props., LLC, 381 F.Supp.2d 250, 257-58 (S.D.N.Y.2005). The plaintiffs argue that the relevant terms of Allstate’s policies provide “less favorable” coverage than this standard policy. The standard policy, however, clearly sets a minimum floor of the lesser of the three options. Thus, any policy that provides a minimum of actual cash value is no less favorable than the standard policy, because the standard fire policy would not obligate an insurer to pay more than the actual cash value in any circumstances. Accordingly, the Allstate policy is not in consistent with New York law, because it was approved by NYSID and provides actual cash value (and, if certain conditions are met, replacement or repair value as well). The plaintiffs argue that the statute “entitles the insured to recover the greater amount once repair has occurred.” (PI. Mem. 14.) But that is plainly not what the statute provides. The plaintiffs also argue that Allstate concedes that its policies are in “total derogation” of the statute (PI. Mem. 12), but Allstate has made no such concession. The plaintiffs also claim that NYSID has requested that Allstate cease using the language at issue, and that NY-SID never “knowingly” approved Allstate’s language because Allstate misled it. The former argument is not supported by the complaint or the attached exhibits, which only show that NYSID has rejected the submission of a revised form that contained a completion requirement. (Compl. Ex. C.) The latter allegation, even if true, does not appear to have any legal significance; the plaintiffs have provided no authority for the proposition that a federal court has the power to void the NYSID’s approval of a policy form, in the absence of the NYSID’s withdrawal of approval under NYIL section 2807(b), based on the court’s analysis of the state of NYSID’s knowledge. If the plaintiffs believe that the NYSID was ill advised in approving Allstate’s policy language, its proper remedy is a complaint to the NYSID. See Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 21 (2d Cir.1994) (“Apart from participating in the political process and filing complaints with the regulatory agencies, individual ratepayers simply have no role in attacking the reasonableness of filed rates.”). Accordingly, the 180-day completion requirement is not barred by New York law. B. The plaintiffs also rely heavily on their argument that the 180-day completion requirement is inconsistent with the language of Allstate’s policies. As the plaintiffs argue, any ambiguity in the terms of an insurance policy “must be construed in favor of the insured and against the insurer.” White v. Continental Cas. Co., 9 N.Y.3d 264, 848 N.Y.S.2d 603, 878 N.E.2d 1019, 1021 (2007). Therefore, if Allstate’s language can reasonably be construed to allow for reimbursement of repairs or replacements that are not completed within 180 days, Allstate cannot refuse to cover such reimbursements. On the other hand, “contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous the terms are to be taken and understood in their plain, ordinary and proper sense.” In re Estates of Covert, 97 N.Y.2d 68, 735 N.Y.S.2d 879, 761 N.E.2d 571, 576-77 (2001) (quoting Hartol Prods. Corp. v. Prudential Ins. Co. of Am., 290 N.Y. 44, 47 N.E.2d 687, 689 (1943)) (brackets omitted). The plaintiffs argue that the policy language does not contain any requirement that the repairs be “completed” within 180 days of the actual cash value payment. (Compl. ¶ 82.) The policy language, however, is not ambiguous, and does not support the plaintiffs’ position. Two provisions of the plaintiffs’ policy address this issue. Section I Conditions, Number 5(b), entitled “Actual Cash Value,” provides: If you do not repair or replace the damaged, destroyed or stolen property, payment will be on an actual cash value basis. This means there may be a deduction for depreciation .... You may make claim for additional payment as described in paragraph “c” and paragraph “d,” if you repair or replace the damaged, destroyed or stolen covered property within 180 days of the actual cash value payment. (Sisson Dec!., Ex. G at 18 (emphasis added).) Section I Conditions, Number 5(c), entitled “Building Structure Reimbursement,” provides: Under Coverage A — Dwelling Protection and Coverage B — Other Structures Protection, we will make additional payment to reimburse you for cost in excess of actual cash value if you repair, rebuild or replace damaged, destroyed or stolen covered property within 180 days of the actual cash value payment. This additional payment includes the reasonable and necessary expense for treatment or removal and disposal of contaminants, toxins or pollutants as required to complete repair or replacement of that part of a building structure^) damaged by a covered loss. (Id. (emphasis added).) These provisions plainly require that the claim for additional payment be for a repair or replacement “within” 180 days of the actual cash payment. Moreover, the additional payment is to “reimburse” a policyholder for costs in excess of the actual cash value if the policyholder repairs, rebuilds, or replaces damaged property “within” 180 days of the actual cash value payment. The word “within” is a word of limitation. See Webster’s II New Riverside Dictionary 1324 (1988) (defining “within” to mean, relevantly, “[i]nside the fixed limits of: not beyond”). The word “reimburse” means “repay” or “pay back or compensate (a person) for money spent or for losses or damages incurred.” Id. at 991. These provisions unambiguously provided for repayment to the policyholder for actual expenses paid to restore the property in this period up to 180 days after the actual cash value payment is made. It is not sufficient that a repair is begun within that period. The plaintiffs also argue that the use of the word “complete” in the final sentence of Condition Number 5(c), as set out above, indicates that repairs need not be “completed” within 180 days because Allstate knew how to use the word “complete” when it wanted to. This argument is without merit. The use of the word “complete” to describe what pollution abatements can be included in a repair does not broaden in any way the temporal limitation on the repairs that must be reimbursed, which are limited to the repairs done within 180 days of the actual cash value payment. Similarly, the fact that Allstate uses different language in provisions in different states does not create an ambiguity in the language used in its New York policies. Accordingly, the 180-day completion requirement does not conflict with the contractual language or with the policy forms approved by NYSID. III. These conclusions are dispositive of some, but not all, of the plaintiffs’ specific claims. In any event, each claim should be dismissed for failure to state a claim. A. Count I: Return of Premiums for Violation of Section 3404 The plaintiffs’ first claim is for a return of the portion of the premiums paid by class members for replacement or repair cost coverage, or for the optional extension of that coverage. As discussed above, the policies did not violate section 3404, and therefore this claim must fail. The plaintiffs’ demand is also barred by the filed rate doctrine. The filed rate doctrine “bar[s] plaintiffs’ claims seeking the recovery of Insurance premiums that have been approved by the [NY-SID].” Roussin v. AARP, Inc., 664 F.Supp.2d 412, 416 (S.D.N.Y.2009), aff'd 379 Fed.Appx. 30 (2d Cir.2010) (summary order). Because “legislative bodies design agencies for the specific purpose of setting uniform rates” and “courts are not institutionally well suited to engage in retroactive rate-setting,” courts typically do not provide relief from premiums alleged to be unreasonable or otherwise inappropriate. Wegoland, 27 F.3d at 19 (internal quotation omitted). “[T]he doctrine is applied strictly to prevent a plaintiff from bringing a cause of action even in the face of apparent inequities whenever either ... strand underlying the doctrine is implicated by the cause of action the plaintiff seeks to pursue.” Marcus v. AT & T Corp., 138 F.3d 46, 59 (2d Cir.1998). There is no exception to the filed rate doctrine based on an alleged fraud on the rate maker. See Wegoland, 27 F.3d at 22. Count I claims, in essence, that portions of Allstate’s policies are worthless and illegal. It seeks a refund of a portion of the premium charged for the policies. Because these policies and the premiums associated with them were approved by NY-SID, Count I is a direct challenge to the reasonableness of the filed rates, and is therefore barred by the retroactive rate-setting strand of the filed rate doctrine. The plaintiffs argue that the Court would not need to “readjust the rates or recalculate the rates or determine whether the rates were fairly set” because “Allstate itself calculated the rate for the replacement coverage and indicated it to the departments New Jersey Insurance Department [sic].” (PI. Mem. 25.) “Thus, all the Court is being asked to do in this case is to refund a specific amount for which Allstate Insurance received a premium but failed to honor.” (Id.) This type of piecemeal attack on a filed rate is barred just as is a claim against a rate as a whole. See Roussin, 664 F.Supp.2d at 417-18. As Judge Marrero explained, “to condone such an approach would gut the filed rate doctrine, as any future complainant would allege injuries stemming from only particular portions of a filed rate, rather than the entire rate.” Id. at 418. Even if this were not the ease, evidence of the proportionate value of a component of coverage in another state sheds little if any light on the value of that component in New York State, which is governed by a wholly different regulatory regime. In their brief, the plaintiffs also recast their claim as one for “refunds and/or rescission.” (PL Mem. 26.) The only case that the plaintiffs cite in support of this theory is Dornberger v. Metro. Life Ins. Co., 961 F.Supp. 506 (S.D.N.Y.1997). The insurance policies at issue in Dornberger, however, were issued without proper authorization and therefore were not subject to the filed rate doctrine. See id. at 514. Thus, even if the plaintiffs were to replead Count One as a claim for rescission, Domberger provides no support. B.Count II: Breach of Contract The plaintiffs’ second count alleges that Allstate breached the terms of its insurance policies by requiring completion of repairs or replacement within 180 days. As discussed above, this claim is meritless and is therefore dismissed. C.Count III: Declaratory Judgment The plaintiffs’ third count requests a declaratory judgment holding that Allstate policyholders need not complete repairs or replacements within 180 days to be entitled to reimbursement for those costs. A declaratory judgment is appropriate only “[i]n a case of actual controversy.” 28 U.S.C. § 2201(a); see generally MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). Because, as discussed above, the 180-day completion requirement is consistent with both New York law and the language of Allstate’s policies, the plaintiffs are not entitled to a declaratory judgment in their favor. D.Count IV: Breach of Settlement Contract The plaintiffs’ fourth count alleges that a distinct contract between the plaintiffs and Allstate was formed when Allstate agreed to pay the actual cash value of the plaintiffs’ damaged property, and that Allstate breached this contract by failing to conform its handling of the plaintiffs’ claims to section 3404 or the terms of its policies. Allstate disputes that any such distinct contract existed. This claim fails because the plaintiffs have failed to allege the terms of any new contract between themselves and Allstate that somehow differed from the terms of the original insurance contract. They have also failed to allege that there was consideration for any new agreement. To the extent that the plaintiffs are simply repackaging their arguments as to what their insurance policy provided, this claim fails because Allstate’s interpretation of the policy is consistent with section 3404 and the language of the policies. E.Count V: Fraud The plaintiffs’ fifth count alleges that Allstate committed fraud by (a) promising to amend its policy to conform with New York law but failing to do so; (b) marketing and selling policies with coverage terms that it did not intend to honor; (c) publishing and marketing false advertising “which fail[ed] to advise the consuming public ... of the differences between Allstate’s nonconforming language and the conforming language utilized by every other insurer in the market place”; and (d) “refusing] as a regular business practice to allow consumers seeking to purchase its product to see the policy language being purchased until significantly after the purchase is consummated and premiums paid.” (Compl. ¶¶ 102-16.) “Under New York law, to state a claim for fraud a plaintiff must demonstrate: (1) a misrepresentation or omission of material fact; (2) which the defendant knew to be false; (3) which the defendant made with the intention of inducing reliance; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the plaintiff.” Wynn v. AC Rochester, 273 F.3d 153, 156 (2d Cir.2001). Where a plaintiff pleads fraud by omission, “it must prove additionally that the plaintiff had a duty to disclose the concealed fact.” Mer rill Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 181 (2d Cir.2007). Allegations of fraud are governed by the heightened pleading standard set forth in Federal Rule of Civil Procedure Rule 9(b). Rule 9(b) provides that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b). In order to meet the heightened pleading standard provided by Rule 9(b), a complaint must “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007). Fraudulent statements or conduct must be attributed to each defendant individually; “Rule 9(b) is not satisfied where the complaint vaguely attributes the alleged fraudulent statements to ‘defendants.’ ” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993). The defendants argue that Count V fails to plead fraud with particularity. None of the plaintiffs’ theories of fraud are successfully pleaded with particularity. First, as discussed above, Allstate neither failed to conform its policies to New York law nor failed to honor the terms of its policies, so no claim of fraud can be premised on a claim to the contrary. Second, the plaintiffs have failed to allege with particularity any fraudulent or misleading advertising or other representations made by any defendant, let alone each defendant. The only particular statement or set of statements identified by the plaintiffs is the webpage printout attached to their complaint. Given that the web-page expressly stated that “all coverages are subject to availability and qualifications. Other terms, conditions and exclusions apply,” it was neither misleading in offering replacement or repair coverage nor could a plaintiff have reasonably relied on it as foreclosing the possibility of a 180-day completion requirement. (Compl. Ex. B at 2-4.) Nothing about these representations was misleading or gave rise to a duty to disclose the exact terms of Allstate’s policies. Third, the plaintiffs have not alleged any facts that would give Allstate a duty to disclose that its policy varied from the policies offered by other insurers. To the extent that the plaintiffs complain that they were not provided with their policies before they purchased the policies, the plaintiffs do not allege that they did not receive the policies after purchase or that they were unaware of what the policies provided before they sustained a covered loss. Indeed, the gist of part of their fraud allegations is that they assert, incorrectly, that the policies contained terms that Allstate did not intend to honor.
2191359-14112	HEANEY, Circuit Judge. This is the first of three appeals from the National Labor Relations Board decided today. The Board’s decision was reported at 169 N.L.R.B. No. 79, 67 L.R.R.M. 1270 (1968). A common issue in each case is whether there is substantial evidence on the record as a whole to support a conclusion of the National Labor Relations Board that a single employee was discharged for union activities in violation of § 8(a) (1) and (3) of the National Labor Relations Act. 29 U.S.C.A. § 151 et seq. The general principles governing the Board and reviewing courts in discharge cases have been stated and restated by the Supreme Court and this Court. It would serve no useful purpose to repeat them here. It is often difficult, however, to apply the principles to such cases as this where there is some evidence tending to show that the employee’s discharge was motivated by his union activities and other evidence tending to show that his discharge was unrelated to his union activities. Judge Blackmun commented on the difficulties in N.L.R.B. v. Byrds Manufacturing Corporation, 324 F.2d 329, 332-333 (8th Cir. 1963): “ * * * These discharge issues are difficult and sensitive when termination coincides with union activity. The employee and the Board present plausible cause for continued employment — a good record, superior comparative production, recent change in assignment, lack of individual warning, and the like — and would tie Ms discharge solely to union sympathy or activity known to the employer. Management in turn presents equally plausible cause for the discharge— under-production, production not in line with ability, troublemaking, attitude, undesirable effect on fellow employees, similar contemporaneous discharges of non-union employees, and the like, — and would tie the discharge to time-honored and accepted management prerogatives wholly unrelated to union activity or sympathy * * . The trier of fact must choose between these two. Again its decision, although always outrageous to the losing party and hard for it to accept, is, if supported by an adequate evidentiary basis, not to be retried by this court.” (Emphasis added.) The language used by Courts of Appeals in determining whether a discharge is violative of the Act varies from case to case. This is particularly true in cases where an employer is obviously moved by valid as well as discriminatory motives. In Philadelphia Moving Picture Mach. Op. U. Local No. 307 IATSE v. N.L.R.B., 382 F.2d 598 (3rd Cir. 1967), the Court stated at p. 600: “ * * [A]n employer commits an unfair labor practice when he dismisses an employee partly on valid grounds and partly for a cause unlawful under the Act. * * * ” (Emphasis added.) In Betts Baking Co. v. N.L.R.B., 380 F. 2d 199, 203 (10th Cir. 1967), the Court stated: “ * * * It seems settled, however, that the Act may be violated if union discrimination is but a partial motive for the discharge * * * ” (Emphasis added.) In N.L.R.B. v. West Side Carpet Cleaning Co., 329 F.2d 758 (6th Cir. 1964), the Court stated at p. 761: “ * * * Even though part of the motivation for Weber’s discharge might have been a needed cutting of expenses, such circumstance could not be legally used to effectuate a companion motive to rid the company of a union protagonist. * * * ” (Emphasis added.) In N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835 (7th Cir. 1964), at p. 837, the Court stated: “The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity. * * * ” (Emphasis added.) Accord, Sunshine Biscuits, Inc. v. N.L.R.B., 274 F.2d 738, 742 (7th Cir. 1960). And, in N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352 (2d Cir. 1962), cert. denied, 373 U.S. 950, 83 S.Ct. 1680, 10 L.Ed.2d 705 (1963), the Court stated at p. 355: “* * * [E]ven though the discharges may have been based upon other reasons as well, if the employer was partly motivated by union activity, the discharges were violative of the Act. * * * ” (Emphasis added.) This Court has also expressed itself in a variety of ways in similar situations. For example, in Cupples Co. Manufacturers v. National Labor R. Board, 106 F.2d 100 (8th Cir. 1939), the Court stated at p. 117: “ * * * It seems probable that [the employee’s] joining the union was at least a contributing cayse of his discharge.” (Emphasis added.) In Kansas City Power & L. Co. v. National Labor R. Board, 111 F.2d 340 (8th Cir. 1940), at p. 348, the Court stated: “ * * * [T]he real inquiry here is whether the transfer was simply for work purposes or whether the purpose or one purpose was so to interfere or so to discipline.” (Emphasis added.) In Mitchell v. Goodyear Tire and Rubber Company, 278 F.2d 562 (8th Cir. 1960), the Court stated at p. 565: “ * * * Plainly, all that had occurred was that [the employer] had just learned of Cole’s complaint to the Wage & Hour authorities. Whether this fact alone motivated [the employer] at that time or whether it was, as defendant’s counsel suggested, the straw that broke the camel’s back, the unavoidable inference is that [the employer’s] action was prompted by knowledge of Cole’s complaint. * * * ” (Emphasis added.) In Marshfield Steel Company v. N.L. R.B., 324 F.2d 333, 337 (8th Cir. 1963), the Court stated: “ ‘ * * * A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause.’ * * * ■Jr ■X- “ ‘ * * * Although the discharge of an inefficient or insubordinate union member or organizer is lawful it may become discriminatory if other circumstances reasonably indicate that the union activity weighed more heavily in the decision to fire him than did dissatisfaction with his performance.’ ” (Emphasis added.) And, in Farmbest, Inc. v. N.L.R.B., 370 F.2d 1015 (8th Cir. 1967), the Court stated at p. 1019: “ * * * [T]here is no record evidence that the discharge of [the employee] * * * was motivated in any degree by [the employee’s] union activities. * * * ” (Emphasis added.) The emphasis appears to vary from case to case. Thus, in Cupples, we spoke of “a contributing cause;” in Kansas City Power, we used the test of “one purpose;” in Mitchell, we spoke of “the straw that broke the camel’s back;” in Farmbest, we used the term “motivated in any degree;” and in Marshfield, we suggested that the Board has the responsibility of determining whether “the union activity weighed more heavily in the decision to fire him than did dissatisfaction with his performance.” Despite the differences in terminology and emphasis, the cited cases require that there be substantial evidence indicating that the employee, but for his union activities, would not have been discharged. While Symons can be read as permitting the Board to find a discriminatory discharge if there is any evidence in the record to support such a finding and while Marshfield can be read as requiring that there be a “calculus of values” or more than substantial evidence on the record as a whole to support such a finding, the opinions read in their entirety do not sustain these interpretations. We would add that either interpretation would be erroneous. At the risk of further complicating an already confused area, we restate what we consider to be the appropriate standards to be followed by Trial Examiners and the Board: (1) The General Counsel has the burden of proving by a fair preponderance of the evidence that the employee was discharged for his union activities or membership — that but for his union activities or membership, he would not have been discharged. (2) This burden can be satisfied by direct or circumstantial evidence. (8) The Board, in reaching its decision, is permitted to draw reasonable inferences, and to choose between fairly conflicting views of the evidence. It cannot rely on “suspicion, surmise, implications, or plainly incredible evidence.” Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 484, 71 S.Ct. 456, 462, 95 L.Ed. 456 (1951). If the Board follows these standards, we, as a reviewing court, have no alternative but to affirm its decision. If it fails to follow them, we must reverse. With these principles in mind, we turn to a consideration of whether the Board correctly decided that Theodore Foster was discharged because of his “zealous efforts as a union steward and to dim the ardor of any steward who might succeed him.” Foster was hired by Mead as an operating engineer in the late summer of 1966. Mead was a party to a collective bargaining agreement with various building trade unions, including the Operating Engineers’ of which Foster was a member. The agreement gave Mead broad authority to discharge unsatisfactory employees. Foster was assigned to operate the hoist. As he was the first operating engineer on the project, he was designated as a union steward. He was competent and efficient in operating and maintaining the hoist. He raised numerous grievances during the time that he was employed — the most important ones being: that Mead failed to take required safety measures with respect to the hoisting operation; that the hoist was in poor mechanical condition; that a number of employees had not been paid for show-up time in accordance with the terms of a collective bargaining agreement between Mead and the Union; that the Company was violating the collective bargaining agreement by not having operating engineers man heaters (submitted in December, 1966); and that members of other unions were doing operating engineer’s work (submitted January 22, 1967). The grievances were satisfactorily resolved by conferences between Mead and the business agent of the Operating Engineers’ Local or by direct action on Mead’s part. The hoist operated by Foster was the center of activity and controversy. The general contractor and the various subcontractors were all interested in having their materials hoisted without interruption. Foster frequently left the shack, in which the controls were located, to regulate traffic at the lift and to determine whether the lift was safely loaded. Mead contends that it instructed Foster to remain at the controls in the shack except on those occasions when he visually observed that the lift had been improperly loaded. It further contends that it had instructed Foster that it was not his function to determine who was to have the priority use of the lift nor to supervise its loading. Foster concedes that he was so instructed, but contends that he only left the shack when it was necessary to do so. There is no evidence indicating that Foster spent any significant time away from the immediate area of the hoist in performing his duties as a steward, or that the Company objected to the time that he did spend in so doing. It appears that most of the information as to grievances was readily available to Foster without his leaving the “shack.” The Examiner gave great weight to the testimony of Headley, a non-supervisory employee, and to testimony of Pike, the supervisor, who discharged Foster. Headley testified that Pike told him that he was going to fire Foster if he didn’t stay in the shack because he was always going around the job with his nose in everybody else’s business. Headley added that he told Pike that this was part of Foster’s responsibility as a union steward, and that Pike replied that Foster goes by the rule book an awful lot. That Mead believed that Foster constantly exceeded his authority, that he was loud, and that he spent too much time out of the operating shack is clear from the record. That Mead could have discharged him for these reasons without violating the Act is equally clear. That Foster took his duties as a union steward seriously is apparent from the record, and that he had a right to do so is established. What is not clear is whether there is substantial evidence on the record as a whole to support the Examiner’s finding, adopted by the Board, that the employer was motivated, at least in part, by Foster’s activities as a union steward to discharge him. The Examiner’s reliance on Symons and Sunshine Biscuits does nothing to relieve our anxiety on this score. Nor is our confidence in the Examiner’s report increased by his discussion of the evidence. It leaves us with the impression that he was as concerned with the fairness of the employer’s action as he was with its unlawfulness under the Act. Considering the record as a whole, we cannot find the substantial evidence necessary to justify the Board's decision. The employer had a collective bargaining agreement with the Union; there is no evidence of Union animus or of collusion between the Union and the employer; all grievances brought to the employer’s attention by Foster were promptly taken care of; a Union man replaced Foster; and, another union steward was appointed to fill his place. We are convinced that Foster would have been discharged even if he had not vigorously enforced the collective bargaining agreement. We are also convinced that he would not have been discharged had the employer’s only complaint been the vigor with which he pursued his duties as a union steward. A reading of the record convinces us that the employer’s real complaint was that Foster was an unsatisfactory employee because he insisted on telling everyone what to do and how to do it. In our view, Mead discharged Foster because it considered him to be an unsatisfactory employee. Whether he was an unsatisfactory employee is not for this Court to decide. The decision of the Board is reversed. Enforcement of the Board’s order is denied. . The other cases are: Ames Ready-Mix Concrete, Inc. v. N. L. R. B., 411 F.2d 1159 (8th Cir. 1969); N. L. R. B. v. Frazier, Inc., 411 F.2d 1161 (8th Cir. 1969). . In each case, the Board, with exceptions noted elsewhere, adopted the findings of the Trial Examiner. As to the weight to be given to the findings of the Trial Examiner, see, Universal Camera Corp. v. National L. R. Bd., 340 U.S. 474, 495-496, 71 S.Ct. 450, 95 L.Ed. 456 (1951).
191767-21366	MANION, Circuit Judge. Bernice Cowan was a commissioned insurance agent for Prudential Insurance Company of America. When her sales production dropped to the second lowest in her office, she was terminated but later reinstated by an arbitrator. Soon thereafter she took disability leave and was again terminated when she did not return to work after her leave expired. She sued Prudential for sex discrimination, retaliation, and constructive discharge. Cowan appeals from the district court’s summary judgment for Prudential. We affirm. I. Facts In February 1989 Bernice Cowan began working for Prudential Insurance Company of America. Cowan worked in Prudential’s Belleville, Illinois office, and claims that during the course of her employment she was treated less favorably than her male eoworkers, and that she was subjected to a hostile work environment. (The particulars of these claims will be discussed in greater detail later.) Cowan also claims that when Prudential terminated her on July 22, 1991 it was because of her sex. Prudential claims that it terminated Cowan pursuant to its new nationwide “Low Production Probation” policy which ultimately authorized the termination of agents whose sales were in the bottom 20% of the agency; the Low Production Probation policy was instituted in August 1990, and in December 1990, Cowan ranked 39 out of 41 sales agents in the Belleville district, and by the end of December Cowan finished second to last among all Belleville sales agents. After Cowan and a number of other Prudential agents were terminated under the Low Production Probation policy, the agents’ union filed a nationwide grievance claiming that the policy constituted an unfair labor practice. The union and Prudential arbitrated the dispute. The union prevailed; the arbitrator ordered Prudential to offer reinstatement to all discharged agents. Cowan accepted Prudential’s offer of reinstatement and on October 21, 1991 Prudential reinstated her, although because there were no openings in the Belleville office, it assigned Cowan to the Cahokia office. Co-wan claims that this constituted retaliation. Cowan also asserts that after she returned to work, co-workers retaliated against her by treating her negatively or ignoring her outright, and that this made it impossible for her to do her job. This, coupled with the location of her new assignment, caused what she perceived to be a constructive discharge. Prudential moved for summary judgment, arguing that Cowan failed to prove that the environment at Belleville was objectively hostile, or that she was treated less favorably than male co-workers, and that it terminated Cowan because of her poor performance and not because of her sex. Finally, Prudential argued that there was no evidence supporting Cowan’s retaliation or constructive discharge claims. The district court granted Prudential summary judgment on all counts. Cowan appeals. II. Analysis As we routinely recite in these cases, summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law,” Fed.R.Civ.P. 56(c); we review the district court’s grant of summary judgment de novo viewing the record in the light most favorable to the nonmoving party. Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1139 (7th Cir.1997). With these standards in mind, we turn to each of Cowan’s Title VII claims. A. Hostile Work Environment The Supreme Court enlarged the scope of sex discrimination under Title VII by validating a claim for sexual harassment emanating from abusive conditions in the workplace that we now call a hostile work environment. “[A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). “[F]or sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employ ment and create an abusive working environment.” Id. at 67, 106 S.Ct. at 2405. This requires that the conduct “adversely affect the work performance and the well-being of both a reasonable person and the particular plaintiff bringing the action____” Brooms v. Regal Tube Co., 881 F.2d 412, 419 (7th Cir. 1989). In support of her hostile environment claim, Cowan relies on her deposition testimony, an affidavit she filed after her deposition, and an affidavit filed by Donna Skouby in a separate suit Skouby filed against Prudential alleging sex discrimination. In her deposition, Cowan proffered three instances that she claimed were sexual harassment: (1) the use of a provocatively dressed cheerleader in Prudential’s 1990 Football Manual, which was printed for voluntary distribution to clients; (2) the circulation in the Belleville office of a cartoon depicting two safes involved in “safe sex;” and (3) a comment made by plaintiff’s district manager Larry Clark that he could do like the plaintiff and “abstain from sex.” Later in an affidavit Cowan presented some additional facts as supporting her sexual harassment claim: her supervisor refused to talk to her except when it was absolutely necessary and he snubbed her in a variety of ways, such as pointedly greeting each sales representative by name except for her; men went on fishing, golfing and other social outings with each other and women were not invited to these events; on Saturday mornings male agents and managers loudly called each other crude names (which were derogatory to women); once in her presence her immediate supervisor Michael Pierce loudly referred to women as “blood-suckers,” “leeches” and “dizzy broads”; the men, including the sales managers, made frequent in-office reference to PT’s, a strip club in Centreville, and they would make plans to go there, or discuss their exploits at PT’s approximately once per month; on one occasion, some agents circulated in the office a photograph that another agent had had taken with a stripper; sexual joking was rampant within the Belleville office; and Larry Clark asked Cowan why she did not “just get married and let some man take care” of her. Prudential argues that we should exclude the incidents which Cowan set forth in her affidavit because she did not include them in her deposition testimony. “We have long followed the rule that parties cannot thwart the purposes of Rule 56 by creating ‘sham’ issues of fact with affidavits that contradict their prior depositions.” Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir.1996). We have also made clear that a deposition is the time for the plaintiff to make a record capable of surviving summary judgment—not a later filed affidavit. However, we also recognize that an affidavit is not meritless if “it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.” Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.1995). While there is no plausible explanation for a lapse of memory here, our review of Cowan’s deposition testimony illustrates that perhaps the questioning was confusing. In Cowan’s deposition, Prudential’s attorney began by asking: “Ms. Cowan, are you claiming in this lawsuit that you were sexually harassed when you worked at Prudential?” She replied: “There was one comment made to me that I considered inappropriate.” Question: “Okay. Why don’t you tell me who made that comment? Let’s start there.” Cowan then explained the circumstances surrounding the “abstain from sex” comment (and that Clark, who had made the statement, apologized the next morning). After explaining the incident she said: “There was also what I considered a very demeaning book that was published by Prudential.” Prudential’s attorney interrupted by saying: “Why don’t I stop you, and I apologize, Ms. Cowan. What I want to do is get the details on the first one, then we’ll talk the book. I will give you an opportunity, I promise.” Prudential’s attorney then asked Cowan more questions about the first incident. After that the attorney asked: “Now, you were starting to tell me, and I’ll let you tell me about this demeaning book you called it?” Cowan then explained about the football book issued in 1989 or 1990, which included a photo of a scantily-clad cheerleader, for which the corporation later issued a companywide apology and canceled the printer’s contract. The attorney then said: “any other incidents or comments relating to sexual harassment?” Cowan replied: “Well, there was a mimeographed dirty joke that was distributed in the office one day. I’m not really sure what the origin of it was, but it was very offensive.” The attorney then asked Cowan some more specific questions regarding the cartoon, and then the following exchange took place: Q. Did you complain to anybody at Prudential about this cartoon? A. I talked with some of the agents on our staff. It was very- Q. Did you talk to anybody in management? A. As I recall, I believe Mike Pierce was standing there when I was discussing my disgust with it with the other agents, but I can’t remember specifically saying to him. As I recall, I believe he was standing there when I was discussing it with some of the other agents on my staff. Q. And do you remember if Mike Pierce said anything? A. I don’t remember. Q. Anything else? A. Not that I recall. From there Prudential’s attorney questioned Cowan about Prudential’s sexual harassment policy. Cowan claims that she understood the question “anything else” to mean anything else related to the incident about the safe sex cartoon, and that since there was nothing more concerning that event, she replied “no.” But Prudential now explains that it meant were there any other instances of sexual harassment. Given the ambiguity of the question “anything else,” we do not conclude that Cowan’s understanding of it was unreasonable. We note, however, that our willingness to look at the additional evidence contained in Cowan’s affidavit subsequent to her deposition is based on the specific circumstances of this case. The general rule remains intact. See Brill v. Lante Corp., 119 F.3d 1266, 1274 n. 4 (7th Cir.1997) (“Brill was asked a series of open-ended questions in her deposition that provided her with ample opportunity to describe each incident she believed constituted harassment. That was her chance to make a record capable of surviving a motion for summary judgment, which is why we generally discount—indeed, disregard—an affidavit that is in conflict with a party’s deposition testimony.”). Cowan also attempts to rely on an affidavit filed by Donna Skouby. Skouby was a co-worker of Cowan’s and also sued Prudential for sex discrimination under Title VII and, more specifically, a hostile work environment claim. In her case, Skouby proffered an affidavit detailing what she considered sexual harassment. Cowan attempts to rely on these additional facts to support her hostile work environment claim. She cannot, for three reasons. First, the Skouby affidavit was not made part of the district court record in Cowan’s case. Second, there is no evidence that Cowan was ever exposed to the same circumstances as Skouby. Third, because only harassment which subjectively offends the plaintiff is actionable, a plaintiff cannot rely on what another plaintiff claims to be offensive if it is not also offensive to the plaintiff, and here there is nothing in the record to establish this. Brooms, 881 F.2d at 419 (conduct must “adversely affect the work performance and the well-being of both a reasonable person and the particular plaintiff bringing the action____”). Moreover, this court has already affirmed the district court’s grant of summary judgment denying Skouby’s sexual harassment claim. Skouby v. Prudential Ins. Co. of Amer., 130 F.3d 794 (7th Cir.1997). Cowan does not fare any better based on the same allegations. For these reasons, Cowan’s reliance on Skouby’s affidavit is misplaced. That leaves the incidents described in her deposition and affidavit and set forth above. Taking these incidents together, even if they offended Cowan, the atmosphere at Belleville was not severe enough or pervasive enough to create an objectively hostile work environment. We reach this conclusion by looking “at all the circumstances, includ ing the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferences with an employee’s work performance____” Gleason, 118 F.3d at 1143-44. First of all, some of the alleged incidents were not even sexual in nature, for instance the cold shoulder Cowan received from coworkers. See Brill, 119 F.3d at 1274 (rejecting attempts to buttress sexual harassment claim with incidents that had nothing to do with sex and for that matter were not particularly sexual in nature). Likewise, the fact that some co-workers decided to associate with others outside of work by golfing or fishing does not constitute sex discrimination, much less create a hostile work environment (unless of course it was a company-sponsored event from which the women were excluded). That is true even if the men only want to associate with other men in their free time. See Bedard v. Roger Williams University, 989 F.Supp. 94, 1997 WL 769363 (D.C.R.I. Nov.13, 1997) (recognising that “federal anti-discrimination laws simply do not provide a remedy for ... social isolation and exclusion from outings which took place outside the scope of employment”). Compare, Doria v. Cramer Rosenthal McGlynn, Inc., 942 F.Supp. 937, 946 (S.D.N.Y.1996) (exclusion from company-sponsored events such as lunches and golf and tennis outings may constitute illegal discrimination if exclusion is based on the individual’s sex). Of the remaining incidents, they were fairly sporadic: the derogatory name-calling (not directed at her) occurred only on Saturday mornings; the conversation among co-workers about visits to the strip club was limited to about once a month; the safe-sex cartoon, the remarks to Cowan about refraining from sex and getting married, the football photograph and the stripper program were five unrelated incidents (two of which were followed by apologies) which occurred over the two years of Cowan’s employment. Brill, 119 F.3d at 1274 (rejecting sexual harassment claim, noting: “Not only are the three incidents fairly benign, but they are spread over at least a 12-month period. ‘A handful of comments spread over months is unlikely to have so great an emotional impact as a concentrated or incessant barrage.’ ”) (quoting Baskerville v. Culligan Intern. Co., 50 F.3d 428, 431 (7th Cir.1995)). Additionally, none of the incidents were physically threatening, and most were not severe. Finally, only two of the alleged incidents were directed at Cowan, and “as this court has recognized, the impact of ‘second-hand harassment’ is obviously not as great as the impact of harassment directed at the plaintiff.” Gleason, 118 F.3d at 1144. See also, Brill, 119 F.3d at 1274 (discounting harassment directed at someone other than plaintiff). In short, while crude, sometimes offensive, and inappropriate, the Belleville atmosphere did not rise to the level of hostile. A comparison to Seventh Circuit precedent substantiates our conclusion that Cowan’s workplace was not a hostile environment. For instance, in Baskerville, 50 F.3d 428, we held that the plaintiffs supervisor had not engaged in actionable sexual harassment even though over a seven-month period he: (1) called the plaintiff a “pretty girl”; (2) made grunting sounds when the plaintiff wore a leather skirt; (3) said to the plaintiff that his office was not hot “until you walked in here”; (4) stated that a public address announcement asking for everyone’s attention meant that “all pretty girls [should] run around naked”; and (5) alluded to his wife’s absence from town and his loneliness, stating while making an obscene gesture that he had only his pillow for company. 50 F.3d at 430-31. Similarly in Gleason, 118 F.3d at 1144-45, we concluded that the plaintiffs allegations that the manager referred to female customers as “bitchy” or “dumb,” appeared to ogle other female employees, flirted with employee’s female relatives, commented on one co-worker’s anatomy, told an employee he spent the weekend at a nudist camp, and told the plaintiff he dreamed of holding her hand, were insufficient to support a hostile work environment claim. And in Brill, 119 F.3d at 1274, we concluded that a female employee failed to establish that the office environment constituted sexual harassment where over a twelve-month period, co-workers once directed sexual comments about women toward a male employee, the company’s president on one occasion described another woman’s breasts and face to a male employee, and the manager once told the employee who was single and pregnant that he disapproved of premarital sex. While it is difficult to discern the “line that separates the merely vulgar and mildly offensive from the deeply offensive and sexually harassing,” Gleason, 118 F.3d at 1144, these cases help draw the line in the present case to conclude that Cowan cannot succeed on her hostile environment claim. See also Skouby v. Prudential, 130 F.3d 794 (7th Cir.1997) (holding that Cowan’s co-worker Donna Skouby did not present sufficient facts by which to establish an objectively hostile work environment.) One last point before leaving Co-wan’s hostile work environment claim: In support of her claim, Cowan points to other incidents where male employees allegedly were treated better than female employees. For instance, Cowan claims that her supervisor continued to work more intensively with a new employee than he did with her. If adequately supported, such disparate treatment could constitute a claim of outright discrimination—not a hostile work environment. (We say “could” because the disparate treatment must be based on sex or some other illegal criteria; mere favoritism of one employee over another is not enough.) But since Cowan has not adequately supported her allegations with specificity, they too fail. See Essex v. United Parcel Service, Inc. Ill F.3d 1304, 1311 (7th Cir.1997) (an equivocal statement in the plaintiffs affidavit concerning what the plaintiff perceived as similarities between the plaintiff and a white employee was too general to show that the other employee was similarly situated ). Moreover, Cowan cannot succeed because the new employee who she complains was treated more favorably than she was just that— new—and thus not similarly situated to her. B. Sex Discrimination This brings us to Cowan’s second claim of sex discrimination—that she was placed on probation and eventually discharged because of her sex. As noted earlier, in August 1990, Prudential implemented a new nationwide low production probation policy in an effort to increase emphasis on individual sales production. The policy required Prudential’s regional vice presidents to examine the sales production of all agents at the end of 1990. Any agent who had worked for Prudential throughout 1990, had not been disabled, and finished in the bottom 20% in sales production for his or her district could be placed on probation. Any agent placed on probation by a regional vice president would be required to meet or exceed the 1990 district sales average during each of the next four quarters, or be automatically discharged. Under the program, no person could be placed on probation if a lower-ranked eligible agent in the district was not also placed on probation. In October 1990, Cowan received a letter from the Regional Vice President warning her that she ranked in the bottom 20% of the Belleville District producers, and that she risked being placed on probation if she remained there at the end of 1990. However, even after the warning, Cowan’s sales performance worsened and she ended the 1990 year second-to-last. In early 1991, John Greene, the Regional Vice President responsible for the Belleville office, had to decide which of the agents in his region who were eligible for probation would be placed on probation. In the end, Greene placed 21 agents in his region on probation, including 14 men and 7 women. From the Belleville district, Greene placed Cowan and Donna Skouby on probation. Greene explained in his affidavit that he did so because Cowan and Skouby were second-to-last and last in sales, respectively, and the next lowest producer had significantly higher sales (more than 40% higher than Cowan). Prudential notified Cowan in March 1991 that she had been placed on probation and that her first probation quarter would run from April to June 1991. In order to avoid discharge, Cowan’s “net sales credits” during the quarter had to total 733,464, which was one-quarter of the sales credits earned by the average agent in Belleville during 1990. At the end of the quarter, Cowan’s sales credit totaled only 15,890—not even close. Because Cowan did not satisfy the probation requirements, she was terminated automatically in July 1991.
5238715-13245	OPINION CURTIS L. COLLIER, District Judge. This is the second time this case has been before this Court. After a previous panel of this Court reversed and remanded the District Court’s grant of summary judgment on Plaintiff Christy Caldwell’s (“Caldwell”) 42 U.S.C. § 1983 claim, the District Court granted summary judgment to Defendant City of Louisville (the “City”). Because we conclude the law-of-the-case doctrine precludes summary judgment, we REVERSE the District Court’s grant of summary judgment with respect to Caldwell’s substantive due process claims under § 1983. I. FACTS AND PROCEDURE The facts of the case have been recited in full in the previous panel’s opinion in Caldwell v. City of Louisville, 120 Fed. Appx. 566 (6th Ch.2004:)(“Caldwell”) and need not be restated here. In Caldwell I, the District Court rejected both of Caldwell’s claims for relief and entered summary judgment after concluding, in part, that (1) no reasonable finder of fact would determine that the City’s culpability had risen to the level of “conscience shocking,” and (2) the requisite elements for a claim of negligence under Kentucky law could not be satisfied. Caldwell appealed the District Court’s grant of summary judgment to this Court. In a December 9, 2004 decision, a panel of this court reversed in part and affirmed in part the decision of the District Court. Viewing the evidence in a light most favorable to Caldwell and accepting the validity of the opinion of her expert witnesses, the Court found the City “undertook some affirmative conduct which ultimately increased Rebecca’s risk of harm.” Caldwell, 120 Fed.Appx. 566, 573. The Court concluded Caldwell asserted a viable claim for a violation of Rebecca’s constitutional right to substantive due process. Caldwell, 120 FedAppx. 566, 576. As a result, the panel reversed the District Court’s dismissal of Caldwell’s 42 U.S.C. § 1983 claim. Turning to Caldwell’s claim of negligence under Kentucky law, the panel con- eluded the District Court correctly awarded summary judgment in favor of the City. Id. The case was remanded for resolution of Caldwell’s substantive due process claim. On June 27, 2005, the United States Supreme Court issued the decision in Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). The City then filed a second motion for summary judgment, arguing the Castle Rock decision commanded the dismissal of Caldwell’s substantive due process claims. The District Court granted the City’s second motion for summary judgment and dismissed, again, Caldwell’s substantive due process claims. Caldwell filed this appeal eight days later. II. STANDARD OF REVIEW The Court reviews de novo a district court’s order granting summary judgment. Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997). Summary judgment is proper where “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). Initially, the burden is on the moving party to conclusively show no genuine issues of material fact exist, Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir.2003), and the Court must view the evidence and draw all reasonable inferences therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). However, the non-moving party is not entitled to a trial merely on the basis of allegations, but must come forward with some significant probative evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Id. at 323,106 S.Ct. at 2552. The Court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question, but does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir. 2003). The standard for summary judgment mirrors the standard for directed verdict. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The Court must decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct. at 2512. There must be some probative evidence from which the jury could reasonably find for the nonmoving party. If the Court concludes a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Id.; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994). III. ANALYSIS Because of the posture of this case, it may be decided on purely procedural grounds. The previous panel rendered a decision and the case returns to us with no intervening change in the facts. In this posture we are required to consider the law-of-the-case doctrine and the mandate rule. A. Law-of-the-Case Doctrine The previously issued decision of the prior panel constitutes the law of the case. The law-of-the-case doctrine precludes reconsideration of issues decided at an earlier stage of the case. United States v. Moored, 38 F.3d 1419, 1421-22 (6th Cir. 1994) (under the law-of-the-case doctrine, a district court is precluded from revisiting an issue that was expressly or impliedly decided by an appellate court). Pursuant to the law-of-the-case doctrine, and the complementary “mandate rule,” upon remand the trial court is bound to “proceed in accordance with the mandate and law of the case as established by the appellate court.” Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir.2006). The trial court is required to “implement both the letter and the spirit” of the appellate court’s mandate, “taking into account the appellate court’s opinion and the circumstances it embraces.” Id. (citing Brunet v. City of Columbus, 58 F.3d 251, 254 (6th Cir.1995)). The power of this court to reach a result inconsistent with a prior decision reached in the same case is “to be exercised very sparingly, and only under extraordinary conditions.” Craft v. United States, 233 F.3d 358, 363-64 (6th Cir.2000) (citing General Am. Life Ins. Co. v. Anderson, 156 F.2d 615, 619 (6th Cir. 1946)). Under the law-of-the-case doctrine, a prior ruling may be reconsidered under one of three extraordinary conditions: It is clear that when a case has been remanded by an appellate court, the trial court is bound to “proceed in accordance with the mandate and law of the case as established by the appellate court.” The “law of the case” doctrine precludes a court from “reconsideration of identical issues.” “Issues decided at an early stage of the litigation, either explicitly or by necessary inference from the disposition, constitute the law of the case.” As we have held, however, this “law of the case” doctrine is “directed to a court’s common sense” and is not an “inexorable command.” We previously have stated three reasons to reconsider a ruling: (1) where substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous and would work a manifest injustice. McKenzie v. BellSouth Telecommunications, Inc., 219 F.3d 508, 513 n. 3 (6th Cir.2000) (citing Hanover Ins. Co. v. American Eng’g Co., 105 F.3d 306, 312 (6th Cir.1997)) (quoting Petition of U.S. Steel Corp., 479 F.2d 489, 493 (6th Cir. 1973)). In this case, it is apparent that there is no new or different evidence. Further, Caldwell I was not clearly erroneous and would not work a manifest injustice. Therefore, the only remaining question under the law-of-the-case doctrine is whether there exists a subsequent contrary and controlling view of the case law. B. Castle Rock’s Impact on the State-Created-Danger Exception The facts of Castle Rock are quite similar to those in the present case. This similarity no doubt led the District Court to grant summary judgment. In Castle Rock, Ms. Gonzales brought suit alleging the police willfully and recklessly had failed to take steps to enforce her restraining order against her husband and protect her daughters (who were subsequently killed by Ms. Gonzales’s husband/their father) and thereby violated her due process rights. As the case was presented to the Supreme Court, there was no remaining claim that the failure to enforce the restraining order had constituted a substantive deprivation of liberty in violation of the due process clause. Justices Souter and Breyer, concurring in the opinion and judgment of the Court, pointed out that Ms. Gonzales had not asserted that she had lost a constitutionally protected liberty interest. Town of Castle Rock, 125 S.Ct. at 2811, n. * Castle Rock extensively talks about procedural due process and how it relates to the facts at issue in that case. The majority found that Colorado law did not make the enforcement of restraining orders mandatory; Colorado left the decision to enforce such orders within the discretion of the police. Town of Castle Rock, 125 S.Ct. at 2805-07. In concluding the police had. discretion to enforce a restraining order, the Court determined Ms. Gonzales did not have an “entitlement” to enforcement of the restraining order, or police protection for her and her daughters. Id. at 2808-09. Therefore, the majority in Castle Rock ruled that the procedural component of the due process clause did not guarantee Ms. Gonzales, or her daughters, that the police would give reasonable consideration to Mr. Gonzales’s request for enforcement of the restraining order. Id. at 2810. Justice Scalia concluded: “In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the due process clause neither in its procedural nor in its ‘substantive’ manifestations.” 125 S.Ct. at 2810 (emphasis added)(referencing DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). The City asserts the only way Caldwell’s claim is actionable is if Rebecca had some sort of right to having Benjamin Mills arrested. This argument fails to distinguish between the different jurisprudential requirements of substantive and procedural due process claims. Caldwell’s substantive due process claims are not predicated on an “entitlement” based on state law. Instead, Caldwell’s claims are founded on a completely separate theory of liability: the state-created-danger exception to De-Shaney’s general rule that the state is not liable for protecting individuals from harm inflicted by a third party. DeShaney has two exceptions — special relationship based on state custody and “state-created danger.” Even in noncustodial settings, “state officials may violate the Due Process Clause when their affirmative actions directly increase the vulnerability of citizens to danger or otherwise place citizens in harm’s way.” Ewolski v. City of Brunswick, 287 F.3d 492, 509 (6th Cir.2002); Gazette v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir.1994) (“[A] duty to protect can arise in a noncustodial setting if the state does anything to render an individual more vulnerable to danger.”); Butera v. District of Columbia, 235 F.3d 637, 648-49 (D.C.Cir.2001) (“All circuit courts of appeals ... have by now relied on this passage in DeShaney to acknowledge that there may be possible constitutional liability ... where the state creates a dangerous situation or renders citizens more vulnerable to danger.” (quotation omitted)); Bow ers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (“If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.”). The City cites no authority which suggests the Castle Rock decision eliminates, or in any way changes or alters, the state-created-danger doctrine. There is nothing in Castle Rock that compels a conclusion the Supreme Court intended to eliminate the state-created-danger exception to the DeShaney rule. This is not surprising since the Court did not have occasion to address or consider the plaintiffs substantive due process claim as it was not before the Court. Since Castle Rock did not specifically address any substantive due process claims under the DeShaney state-created-danger exception (the exception applicable to Caldwell’s substantive due process claim), the Castle Rock decision does not directly overrule or supercede the panel’s analysis previously applied to the facts in Caldwell I. C. Failure to Train and Failure to Supervise
10531658-12692	PER CURIAM. Four of six named black plaintiffs appeal pro se from the apportionment of a $700,-000.00 settlement approved by the district court in this employment discrimination class action. Because we conclude that the terms of the contested consent decree are just and equitable for all class members, we affirm the district court’s approval of the settlement. I. On November 22, 1985, Kenneth Mont-lack, counsel for plaintiffs, Kathryn Bailey, Cecilia Curry, Barbara Fakhir, Seifudden-Rasheed Fakhir, Melvenia Rogers, and Judith Vance, filed a class-action complaint against Great Lakes Canning, Inc. (“GLC”), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. On April 28, 1986, appellants were certified as representatives of a class of black applicants who had sought, were seeking, or in the future would seek employment with GLC. At that time, counsel had identified an initial class member list of approximately eleven persons. The district court bifurcated the liability and damages portions of the case. Prior to the trial of the liability issues, the case was consolidated with another case brought by Cecilia Curry and Melvenia Rogers against GLC, in which they were represented by attorneys Diane Newman and Richard Sternberg. Newman and Sternberg agreed that Montlack would be the lead counsel in the consolidated cases. On September 16, 1987, after extensive hearings and briefings, the district court entered a Memorandum Opinion and Judgment for the plaintiffs, finding that GLC had violated both Title VII and § 1981 by engaging in a pattern and practice of discrimination in hiring during the years 1983 through 1985. The pattern and practice of discrimination in hiring was established by statistical evidence which demonstrated that out of 149 persons hired by GLC during the relevant period, only eleven persons (7.4%) were black, whereas black representation within the relevant three-county area was 10.8%. The evidence also showed that: GLC’s hiring practices were vague and subjective; it continually provided incomplete, inaccurate, and inconsistent information to job applicants; it kept inadequate records of its hiring decisions; its hiring standards were lax and unprofessional and it often disregarded them; its records identified applicants by race; it hired friends and relatives referred by the predominantly white work-force; it had hired white applicants over better qualified black applicants; and at times it had hired from the exclusively white pool of referrals from the Teamsters Union Local. Finally, the evidence demonstrated a “subclass” of black persons who had unsuccessfully applied for employment at GLC between January 1, 1983 and December 1985. Forty-five of the subclass members {not including the appellants) were apparently better qualified than the white applicants hired to fill the positions for which they applied. The court denied GLC’s subsequent motion to certify the September judgment for interlocutory appeal, and counsel and the district court began preparing for the remedy phase of the case. They engaged in numerous discussions concerning settlement. Appellants contend that on November 13, 1987, Montlack told them that they had won the $5.5 million sued for and that he would be consulting with GLC lawyers on the following November 16. They charge that he had not kept them advised of the proceedings and that thereafter he refused to discuss the case with them. However, the court’s findings indicate that Montlack had fully advised the appellants of the nature of a class action prior to the filing of the suit, that he had kept them advised of the proceedings, and that he met with them in February of 1988 to discuss the pending negotiations. The court further found that on April 11, 1988, counsel and GLC had reached an agreement with respect to job goals and the amount of an award ($700,-000.00); and thereafter Montlack discussed this agreement with the appellants. Further, when Montlack learned on February 9, 1988, that appellants had hired a new attorney, Sam Perry, Montlack encouraged Perry to participate in the pending settlement negotiations and kept him advised of subsequent developments. On May 9, 1988, a proposed consent decree was submitted to the court. The court entered a preliminary approval of the decree on May 11, 1988. Notice of the proposed settlement was then given to identified class members by mail and to unknown members by newspaper publication. Curry and Rogers, the other two named plaintiffs, discharged Newman and Stern-berg as counsel and joined with the four appellants in filing both individual and collective objections to the proposed decree through new counsel, Sanford J. Berger and Robert M. Bertel. A status conference was held by the court on June 24, 1988. Counsel and the named plaintiffs were present. At that time, the court advised all parties that they would have an opportunity to testify regarding their objections to the proposed decree at a fairness hearing scheduled for July 5, 1988. The four appellants, Bailey, Barbara and Steifudden Rasheed Fakhir and Vance, did not appear at the hearing. Nevertheless, the court permitted them to submit affidavits, which were filed on July 8, 1988. The other two named plaintiffs, Curry and Rogers, appeared and testified against approval of the settlement. Only 19 of the 152 class members raised objections to the settlement. The only substantial objections were based upon the lack of job guarantees, the failure to notify them of the liability trial, and unhappiness with the money distribution. On July 22,1988, the district court issued a Memorandum Opinion and Order approving the consent decree. The opinion carefully reviewed the relevant evidence, particularly the attorney fees, and rejected the objections of the named plaintiffs and the class members. On this appeal, the four appellants object only to the apportionment of the monetary amount of the settlement. In furtherance of this objection, the appellants also argue that the Title VII statute of limitations limited the members of the class and that the award of attorney fees is unreasonable. The consent decree provided for monetary relief in a total amount of $700,000.00 to be distributed as follows (J.App. § E at 16-18): (1) $70,000.00 to be distributed on a pro rata basis, as compensatory damages under § 1981, to the six named plaintiffs. In addition, they will receive a pro rata share of the damages payable to subclass members. (2) $360,000.00 to be distributed, as back-pay under Title VII, on a pro rata basis without preference to subclass members who hereafter establish their claims in accordance with the procedures outlined in the decree. (The potential subclass now includes 157 persons.) (3) $270,000.00 for payment of attorney fees and reimbursement of the costs and expenses incurred by class counsel (apparently considered by Montlack as intended to include future fees and expenses as well as those incurred to date). The court approved Montlack’s application showing that he had expended almost 1600 hours in the preparation and trial of the case. Accordingly, it allowed him $200,000.00 in attorney fees, based upon an hourly rate of $125. It noted that, to date, he had out-of-pocket expenses totaling $15,094.51, and allowed him $20,000.00 for reimbursement of expenses. It also allowed $50,000.00 in attorney fees to Newman and Sternberg, based upon an hourly rate of $100. Montlack’s rationale in accepting the $360,000.00 settlement covering class members was that, absent unlawful discrimination, perhaps 31 (20.8%), rather than 11, of the 149 identified persons hired by GLC during 1983 through 1985, would have been black. Because GLC hired only 11 black employees, approximately twenty others were discriminated against in the hiring process. Accordingly, the maximum potential gross amount of any backpay award to a class (including all lost earnings, benefits, and interest for a period of as much as four years, nine months) would not exceed $1,384,000.00. He balanced this against the possibility of a one-year backpay award and the risks involved in further proceedings and appeals. Further, that gross amount would be reduced by seasonal layoffs and other job terminations, plaintiffs’ actual interim earnings, and amounts they might reasonably have earned during the period. Accordingly, Montlack determined that it was reasonable to conclude that, if the 20 shortfall applicants could have been determined, they each would have received an award of $18,000.00. Montlack considered it advisable to distribute the $360,-000.00 settlement equally among the 157 members of the class (amounting to approximately $3,000.00 each). Montlack allocated $10,000.00 to each named plaintiff as compensation for emotional trauma and $1,667.00 to each as compensation for their legal efforts and assistance rendered to counsel. There was no evidence that, except for unlawful discrimination, the named plaintiffs would have secured employment at GLC. II. A class action may not be compromised without the approval of the court. Fed.R.Civ.P. 23(e). The district court may not approve a settlement unless it determines after hearings that the settlement is fair, adequate, and reasonable, as well as consistent with the public interest. United States v. Jones & Laughlin Steel Corp., 804 F.2d 348, 351 (6th Cir.1986); Williams v. Vukovich, 720 F.2d 909, 921 (6th Cir.1983). An approved Settlement will not be upset unless the district court has abused its discretion. Jones & Laughlin, 804 F.2d at 351; Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir.), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982). A. Based on the evidence developed at trial, it is doubtful whether any of the four appellants would have been entitled to recover backpay under Title VII. They did not establish that they were not better qualified than the white persons hired for the jobs. Compensatory or punitive damages may not be recovered under Title VII, but may be recovered under a § 1981 action joined with a Title VII action. Boddy v. Dean, 821 F.2d 346, 352 (6th Cir.1987); Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975). Accordingly, it was appropriate to calculate a compromise figure reflecting the uncertainty of the appellants’ being able to recover compensatory or punitive damages in the § 1981 action. The trial court correctly found that the appellants had been adequately advised from the beginning as to the possible consequences of a class action. In bringing the class action, “they disclaimed any right to a preferred position in the settlement,” and their individual claims were weaker than some of the others in the subclass. See Flinn v. FMC Corp., 528 F.2d 1169, 1176 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976). “The court should insure that the interests of counsel and the named plaintiffs are not unjustifiably advanced at the expense of unnamed class members.” Williams v. Vukovich, 720 F.2d at 923. The trial court found that the total settlement was the result of “counsels’ efforts in evaluating the total possible recovery versus the uncertainty of an appellate review and the early resolution of this litigation.” J.App. § C at 24. It conformed to the requirement that it weigh “the plaintiffs’ likelihood of success on the merits against the amount and form of the relief offered in the settlement,” and it could not have withheld its “approval simply because the benefits accrued from the decree were not what a successful plaintiff would have received in a fully litigated case." Williams, 720 F.2d at 922. Accordingly, we affirm the district court’s disposition of the appellants’ objection that the settlement was unfairly distributed. B. The appellants also contend that the Title VII statute of limitations capped the potential members of the class. As noted by the trial court, this issue was briefed both at the class certification stage and at the fairness hearing. The court expressed the belief that the real basis for the appellants’ objection was that they did not wish any other members of the class to share in the award. We agree that the appellants’ contention is without merit because “backpay may be awarded on a class basis under Title VII without exhaustion of administrative remedies by the unnamed class members.” Albermarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 2370 n. 8, 45 L.Ed.2d 280 (1975). Generally, certification of a class action tolls limitation periods applicable to the class.
269021-9674	MANSFIELD, Circuit Judge: The principal, and somewhat novel, issue raised by this appeal is whether, before a defendant may be convicted of offering a bribe to a public official in violation of 18 U.S.C. § 201(b)(1), the Government must establish that the defendant knew the offeree to be a federal official acting in his capacity as such. We hold that such knowledge is not an essential element of the crime and, finding no merit in appellant’s other contentions, we affirm his conviction. Appellant was indicted for corruptly offering to give the sum of $400 per month to two FBI agents, David Clark and Charles Queener, with intent to influence their decisions and actions in their official capacity with respect to an illegal gambling operation. At trial Clark and Queener, who are special agents of the FBI assigned to investigate gambling operations, both testified that on August 5, 1971, they were watching a residence in Queens County from a roving, unmarked car and observed a number of automobiles pulling up to the house and passengers entering and departing the house after short intervals. On August 9 the agents returned to the same area in Clark’s black Volkswagen for further surveillance, this time from a stationary position. A short time later Jennings stopped his car next to them and asked if they were looking for him. When Clark replied that he did not know Jennings and they were waiting for a friend, Jennings insisted they were “cops” observing his gambling operation which he described, in response to an inquiry from Clark, as "policy.” Upon being asked his purpose in stopping, appellant replied that it was to try to prevent impending arrests in his policy operation. He further insisted, over the agents’ objections, that they were “cops,” and that he would not leave until they reached an agreement. Finally, an appointment was made for the following day at a hotel in Queens. At no time during the conversation did the agents identify themselves as federal officers. On the following day the three men met at the hotel. Agent Queener, fitted with an electronic transmitter, recorded their conversation. Appellant, upon inquiring whether the agents were sergeants or lieutenants, was told only that they were from “downtown.” Thereupon he told them that he wanted protection for a policy operation he was conducting at three locations and that he was already paying $1,500 a month for protection from a division of about 32 police in Queens. Following some equivocation concerning who should set the price, appellant stated “What about four? Let’s say four for openers,” and agreed to payment on the first of the month. The agents questioned Jennings further and, when they sensed his suspicions, arrested him. At trial the court denied appellant’s request for an instruction to the jury that “the Government must prove beyond a reasonable doubt that defendant knew that the agents in question were acting for and on behalf of the United States.” Instead the court instructed the jury that, while “the Government need not prove that [appellant] knew that these men were FBI agents,” it must prove that Jennings “approached Agents Clark and Queener understanding and believing that the agents had the power and authority not to arrest or to help Mr. Jennings avoid arrests in the . . . gambling operations,” that at the time of the offense they were FBI agents, and “that Agents Clark and Queener had the authority to make an arrest.” The district court’s instruction was legally sufficient. We decline to import into the statute, 18 U.S.C. § 201(b)(1), an additional requirement that a defendant who seeks corruptly to influence a federal official must know by which sovereign the official is employed at the time the bribe is offered. The conduct prohibited by the statute is the corrupt offer of “anything of value to any public official . . . with' intent to influence any official act.” Though the official must be a federal official to establish the federal offense, nothing in the statute requires knowledge of this fact, which we perceive as a jurisdictional prerequisite rather than as a scienter requirement. Nor does the legislative history support appellant’s contention as to knowledge. If anything, it suggests that the sole scienter required is knowledge of the corrupt nature of the offer and an “intent to influence [an] official act,” 1962 U.S.Code Cong. & Admin. News pp. 3852, 3856. We see no reason to add by judicial fiat what Congress has not sought to require. United States v. Lombardozzi, 335 F.2d 414, 416 (2d Cir.), cert. denied, 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964). Our holding accords with well established lines of authority to the effect that to convict for assault on or interference with a federal officer engaged in the performance of his official duties, 18 U.S.C. § 111, proof that the accused knew the person assaulted was a federal official is not required, United States v. Lombardozzi, supra; United States v. Montanaro, 362 F.2d 527 (2d Cir.), cert. denied, 385 U.S. 920, 87 S.Ct. 233, 17 L.Ed.2d 144 (1966); United States v. Ulan, 421 F.2d 787 (2d Cir. 1970), and that it is unnecessary to prove knowledge that an interstate facility was used to commit a fraud involving use of such facilities, United States v. Blassingame, 427 F.2d 329 (2d Cir. 1970), cert. denied, 402 U.S. 945, 91 S.Ct. 1629, 29 L.Ed.2d 114 (1971) (interstate wire); United States v. Kaufman, 429 F.2d 240, 244-245 (2d Cir.), cert. denied, 400 U.S. 925, 91 S.Ct. 185, 27 L.Ed.2d 184 (1970) (mail), or that stolen property would in fact be transported in interstate commerce, United States v. Tannuzzo, 174 F.2d 177, 180 (2d Cir.), cert. denied, 338 U.S. 815, 70 S.Ct. 38, 94 L.Ed. 493 (1949), although such knowledge may be required to establish a conspiracy to commit the offense, United States v. Vilhotti, 452 F.2d 1186, 1189-1190 (2d Cir. 1971), cert. denied 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972); United States v. Tannuzzo, supra. The authorities relied upon by appellant, being clearly distinguishable, are not persuasive. In Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893), the defendants were charged with having conspired to violate R.S. § 5399, the pertinent language of which made it a crime to impede or intimidate an officer of a United States court. The indictment alleged merely that the defendants had impeded em ployees from proceeding to work and had sought to compel the discharge of such employees during the pendency of a federal injunction restraining such conduct, without alleging that they knew of the existence of the injunction. Although some language used by Chief Justice Fuller in his opinion appears on the surface to support appellant’s position here, a closer reading makes clear that the court was concerned with the necessity for charging knowledge or notice of the existence of the injunction, as distinguished from its federal character. Similarly, the Government was here required to show an awareness by appellant that the person whom he sought to bribe was an official. Other decisions relied upon by appellant likewise do not deal with the defendant’s knowledge of the federal capacity of the official involved but with the necessity for some form of knowledge that the person bribed was an official. See Cohen v. United States, 294 F. 488 (6th Cir. 1923) (bribery of prohibition agent); Hone Wu v. United States, 60 F.2d 189 (7th Cir. 1932) (bribery of a federal narcotics agent). In short, culpability turns upon the defendant’s knowledge or belief that the person whom he attempts to bribe is an official having authority to act in a certain manner and not on whether the official possesses federal rather than state authority. Our view is in accord with the Final Report of the National Commission on Reform of Federal Criminal Laws, which does not require that a defendant know of a jurisdictional fact, since “the degree of an offender’s culpability does not depend upon whether he does or does not know when he commits the offense which sovereign will be able to prosecute him.” Comment to § 204 of the proposed Federal Criminal Code, contained in Hearings Before the Sub-comm. on Criminal Laws and Procedures of the Senate Comm, on the Judiciary, 92d Cong., 1st Sess., pt. 1 at 172 (1971). The evidence that appellant believed that the agents had the power and authority to help avoid arrests in the gambling operation under investigation was overwhelming. No further proof was required. “Often, if not usually, he cannot have absolute knowledge. He offers the bribe because he supposes the one to whom he offers it has the necessary official function; and, if his supposition is right, he commits the offense denounced by the statute.” Cohen v. United States, supra, 294 F. at 490-491. See also Hone Wu v. United States, supra. Appellant also urges that the agents lacked jurisdiction to arrest him, because there was an absence of proof that the gambling enterprise they were investigating was of sufficient size or duration to violate the federal anti-gambling business statute, 18 U.S.C. § 1955 (1972 Supp.). But the prosecution was for bribery, not for operating a gambling enterprise, and the agents’ authority to arrest for the latter offense is not dependent upon proof that the jurisdictional prerequisites of a successful prosecution for gambling exist. It is sufficient that they possessed the authority to arrest for a violation of a separate federal statute and that the defendant attempted to influence them not to exercise their authority with respect to an activity which might constitute a federal offense.
12522193-13027	GRASZ, Circuit Judge. Chinese citizen Jinfeng Tian petitions for review of a final order issued by the Board of Immigration Appeals ("BIA"). The BIA dismissed Tian's appeal of an immigration judge's ("IJ's") order that denied her asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We grant the petition, vacate the order of removal, and remand for further proceedings. I. Background Tian is a native of China and was thirty-three years old at the time of her removal proceeding. She came to the United States in 2011 and stated she did so because she was being persecuted for her Christian faith. She applied for asylum, withholding of removal, and relief under CAT. While in China, Tian attended what is commonly referred to as a house church. She described her worship services as "family gatherings" where individuals would meet, sing gospel songs, and read Bible verses. The church leader would then teach, with a discussion following. The services were under the leadership of someone Tian referred to as "Priest Chen." Tian was baptized in a home setting in China and later at a church in the United States. During her hearing before the IJ, Tian described her baptism, her acceptance of Christ as her savior, and what the baptism symbolized. Tian testified that before she fled China she was arrested by the Chinese police for participating in these "family gatherings." She described how the police slapped, hit, and repeatedly kicked her during an interrogation. After her release, Tian stated she was placed under surveillance, required to report to Chinese government authorities each week on Sunday (her day of worship), and not allowed to associate with other house church members. Tian also claimed the police threatened to jail her for life if she failed to report. Tian further asserted her parents are still being questioned by the Chinese police as to her whereabouts. During Tian's appearance before the IJ, she was asked oddly focused questions about her Christian faith. The government asked Tian questions about what the Baptist denomination means, how the Baptist church was founded, and why the Baptist church was created, to which she responded she did not know. The government next asked Tian about the organization of the Bible, to which she responded "there are two part[s] in the Bible, the Old Testament and the New Testament." Tian then gave brief descriptions about the Old and New Testaments and quoted her favorite passage from the New Testament book of Mark. The government also asked about her understanding of religious holidays, to which she gave complete answers. The government also extensively questioned who baptized Tian in the United States. Tian stated that pastor Yang Qing Jian baptized her. The government countered that the certificate of baptism indicated the pastor was Jerry Jean, to which Tian replied once again that it was pastor Jian. The government then asked why another person was listed as baptizing her. She maintained that it was pastor Jian and that he was listed on the certificate. After she was able to see the certificate, Tian identified that the certificate stated Yang Qing Jian's name, as well as his English name, Jerry Jean. The IJ questioned Tian about her passport and how she obtained her visitor's visa to enter the United States. Tian responded that she had her passport prior to her arrest by Chinese authorities, the police did not take it, and she traveled to Beijing to obtain the visa. The IJ asked if Tian lied to government officials about the reason for getting the visa, to which she responded yes. The IJ then questioned Tian about whether there were churches in China that are authorized by the government and if they were Christian churches. Tian stated that there were authorized churches, but she did not know if any were Christian because she had never been to one. The IJ next asked Tian if she went to a doctor after her beating by Chinese police. Tian testified that she saw someone she described as a family doctor. After questioning, Tian further explained that a local doctor came to her home and she did not go to the hospital. The IJ then proceeded to ask a string of questions about doctors in Beijing and whether she could have gotten care there. When the IJ asked if the doctors she did see would have provided information related to her beating by the police and Tian did not respond, the IJ stated: "For the record the respondent is not answering." Tian then explained the family doctors are not like doctors in the hospital and they only came to her home, and the IJ responded by stating "for the record the respondent is non-responsive." The IJ then questioned Tian about her understanding of English, to which Tian responded that she speaks simple English. The IJ proceeded to ask why Tian would sometimes start answering before the interpreter finished. Tian responded that they had been talking about the names, so when she saw the name she pointed to it. The IJ also asked why she hesitated and appeared to look like she was "caught in a lie" during some questions. In response, Tian stated that she was recalling the past event and was not hesitating. Throughout questioning by her attorney, the government's attorney, and the IJ, Tian often did not answer or needed repetition of the question. On at least fourteen occasions the interpreter had issues translating words and difficulty communicating with Tian. During the hearing, a witness corroborated Tian's testimony. The office manager for Immanuel Chinese Baptist Church testified that Tian started coming to their church weekly in 2012, and was also occasionally in attendance at additional fellowship and prayer meetings. Like Tian, this witness also could not testify as to why the Baptist church was created. However, the witness testified that Tian was an authentic Christian. He also confirmed that Yang Qing Jian's English name was Jerry Jean, and that Jian was the individual who baptized Tian. After the hearing, the IJ denied all forms of relief, finding Tian was not a credible witness. The IJ cited the time it took Tian to answer questions, her demeanor, and that she said she could not speak English but was heard stating "this is the pastor's English name or words to that effect." The IJ added that Tian was non-responsive, had lengthy pauses, and then asked for questions to be repeated. The IJ also cited the fact Chinese police did not take her passport and that she had lied to immigration officials to obtain a visa to the United States. The IJ concluded the Eighth Circuit does not have a separate analysis for the CAT claim and that he was denying that claim based on credibility as well. Tian then appealed the IJ's decision to the BIA. The BIA found no clear error in the IJ's adverse credibility determination. The BIA discussed Tian's alleged inability to explain why she referred to her house church leader in China as a priest. The BIA also discussed the alleged inconsistencies in Tian's testimony about the name on Tian's baptism certificate. The BIA did not acknowledge the difficulties in communication with the interpreter. Additionally, the BIA noted Tian was unable to explain why she did not know the denomination of her American church was Baptist. The BIA also stated the IJ properly noted Tian lied in order to obtain her visa to leave China. Finding no clear error, the BIA dismissed Tian's appeal of the IJ's denial of all claims. Tian petitions this court for review. II. Analysis Tian faces a high hurdle to overcome an adverse credibility determination by the IJ. Such determinations are afforded great deference. We review for substantial evidence, Diallo v. Mukasey , 508 F.3d 451, 454 (8th Cir. 2007), and it is a rare case where an adverse credibility determination is disturbed on appeal. This, however, is that rare case. See Cojocari v. Sessions , 863 F.3d 616, 617-18 (7th Cir. 2017). Under our standard of review, credibility findings must be "supported by specific, cogent reasons for disbelief." Sivakaran v. Ashcroft , 368 F.3d 1028, 1028 (8th Cir. 2004). "[I]t cannot rely on trivial details or easily explained discrepancies." Tandia v. Gonzales , 487 F.3d 1048, 1052 (7th Cir. 2007). We note that "cogent" means "clear, logical and convincing." Cogent , Lexico, http://www.lexico.com/en/definition/cogent (formerly Oxford Dictionaries). The reasoning behind the IJ's credibility finding here is simply not cogent. We have two primary concerns with the BIA's order and the IJ's decision, both of which we review. Setiadi v. Gonzales , 437 F.3d 710, 713 (8th Cir. 2006) ("When the BIA adopts the IJ's decision, but adds reasoning of its own, we review both decisions."). First, the IJ relied on personal beliefs and perceived common knowledge to reach unfounded adverse conclusions regarding Tian's faith. Second, the IJ gave no weight to translation issues in the proceeding. A. Faith Questions On the first issue, Tian's situation bears significant similarities to an IJ order reviewed by the Seventh Circuit. See Jiang v. Gonzales , 485 F.3d 992 (7th Cir. 2007). In that case, the IJ denied Jiang's application for relief. Id. at 993. The IJ discredited Jiang's testimony based, in part, on "his 'lack of knowledge' about Christianity." Id. at 994. The Seventh Circuit reversed, stating that "Jiang correctly argues that the IJ impermissibly relied on personal beliefs and his perceived common knowledge when concluding that Jiang 'has, at best, rudimentary if any knowledge about Christianity.' " Id. at 995. The court repeated its previous caution that IJs not "us[e] an applicant's 'ignorance of the details of religious doctrine ... as evidence that an individual is not a true believer.' " Id. (ellipses in original) (quoting Muhur v. Ashcroft , 355 F.3d 958, 961 (7th Cir. 2004) ). It also noted that the U.S. Department of State has previously recognized that some Chinese Christians lack access to the training and literature needed for extensive doctrinal knowledge. Id. Like the Seventh Circuit, we believe credibility determinations are not properly based on nit-picking of translated answers regarding obscure religious trivia. Rather, credibility determinations in this circuit must be supported by substantial evidence providing "cogent reasons for disbelief." Sivakaran , 368 F.3d at 1028. In the context of religious persecution, interrogations designed to trip up new converts or those without formal theological training fail to "bear a legitimate nexus" to such determinations. See Jiang , 485 F.3d at 995 (quoting Gjerazi v. Gonzales , 435 F.3d 800, 807 (7th Cir. 2006) ). The record here is replete with examples of the exact conduct our sister circuit has repeatedly criticized. The IJ used misguided questions and demonstrated little understanding of Chinese culture. Three examples from the record illustrate our concern. First, when the IJ asked Tian about her church in the United States, the IJ noted that "[s]he claimed that it was a Christian Church, but was unable to explain why her baptismal certificate indicated that it was a Baptist Church." We know of no authority requiring familiarity with American Christian denominations for a foreign applicant to be a committed Christian. Second, the IJ seemed obsessed with, and troubled by, Tian's reference to her house church meetings as "family gatherings." For example, when asked why she called it a family gathering, Tian explained that "I can feel the warmth, the warmness and peace, happiness and harmony," which is a plausible explanation for using a family-based moniker for a house church meeting. Third, the IJ and the BIA cited Tian's lacking answers to the government's detailed theological and historical questions about the Baptist denomination. This case is easily distinguished from cases where we have affirmed the denial of asylum such as Xin Yang v. Holder , 747 F.3d 993 (8th Cir. 2014), where the application for asylum was time-barred, there was a lack of evidence the applicant was even a Christian, and allegations of persecution pertained only to a third person rather than the applicant. Equally disturbing is the IJ's lack of cogent reasoning in assessing the challenges faced by religious minorities under repressive regimes. For example, the IJ questioned why Tian lacked medical documentation of beatings from Chinese police. "[M]ost telling," according to the IJ, was that Tian "admitted that she lied to immigration officials in order to obtain her visitor's visa." This explanation is consistent with behavior required to escape a country where officials had physically beaten her for her religious views. The IJ showed little awareness of authoritarian regimes or why one could feel compelled to use deception. In a similar tone-deaf manner, the IJ also asked Tian repeatedly about government-approved churches. The IJ's implied personal belief that such churches were a reasonable alternative has no support in the record. B. Translation Issues
3314385-5798	BISSELL, Circuit Judge. J.R. Cooper appeals from the judgment of the United States Claims Court, 11 Cl.Ct. 471 (1987), dismissing Cooper’s complaint against the United States for compensation for the destruction of timber located on his property. We reverse and remand. BACKGROUND During 1979, construction on the Tennessee-Tombigbee Waterway blocked the east fork of the Tombigbee River adjacent to the Cooper farm in Itawamba County, Mississippi. The blockage caused unusual flooding of a two hundred acre section of bottom land of the Cooper farm. The United States Army Corps of Engineers attempted to remove the blockage in 1980, but was unable to do so until 1984. As a result of the blockage, the timbered area of the bottom land was subjected to standing flood water for long periods of time during the spring and summer growing seasons of the 1979-84 period. Thus, the timber in the bottom land became stressed, and some trees began to die, as early as 1979. As of the end of 1979, the number of dead trees, scattered throughout the approximately two hundred acres of timber land, covered the equivalent of approximately two acres of dead trees. By August 20,1980, approximately ten percent of the trees in the timbered area were dead, and more than fifty percent of the trees in the area were damaged. By September 2, 1984, the dead timber represented the equivalent of approximately seventy-five acres of dead trees. If the clogged condition of the river had continued after 1984, further damage to and destruction of timber in the bottom land would have continued after 1984. Since the removal of the obstruction from the river sometime during the year 1984, the Cooper farm has not been subjected to unusual flooding. 11 Cl.Ct. at 474. On October 5, 1982, S.K. Cooper deeded the Cooper farm to his nephew J.R. Cooper, reserving a life estate in the farm. S.K. Cooper died on December 25, 1982. J.R. Cooper filed suit against the United States on December 20, 1984, seeking compensation for the timber destroyed by the flooding. In its opinion, the trial court explained that it viewed the taking at issue, not as a taking of trees, but as a taking of a temporary flowage easement. The flowage easement was taken in 1979, when the flooding began. Although the value of the trees would ordinarily be a proper element of compensation for the taking of the flowage easement, the court reasoned that, because J.R. Cooper did not own the property in 1979, he was not entitled to compensation. We review Claims Court decisions for errors of law and clearly erroneous findings of fact. Milmark Services, Inc. v. United States, 731 F.2d 855, 857 (Fed.Cir.1984). ISSUES 1. Did the trial court err in construing the complaint as stating a claim for the taking of a flowage easement instead of a claim for the taking of timber? 2. Did the trial court err in determining when the taking occurred? 3. Did the trial court err in concluding that J.R. Cooper had no property interest in the property taken? OPINION To resolve this case, we must answer three questions: what was taken? when was it taken? and from whom was it taken? The trial court’s judgment, as explained in its opinion, is consistent with precedent dealing with takings of flowage easements. We think that, although the government may have taken a flowage easement, the plaintiff does not seek compensation for it. Therefore, this case is not controlled by the cases cited by the trial court dealing with flowage easements. J.R. Cooper claims compensation for the destruction of timber caused by flooding. As he states in his complaint: “The destruction of plaintiff’s valuable timberland constitutes a taking of private property for public use.” He does not claim compensation for a flowage easement taken by the government, nor is his claim to compensation for the timber predicated on a taking of a flowage easement. It is undisputed that timber was destroyed. Numerous cases hold that the destruction of a property interest is a compensable taking within the meaning of the Fifth Amendment. E.g., Murray v. United States, 817 F.2d 1580, 1583 (Fed.Cir.1987); accord United States v. Virginia Elec. & Power Co., 365 U.S. 624, 627, 81 S.Ct. 784, 787, 5 L.Ed.2d 838 (1961); Armstrong v. United States, 364 U.S. 40, 48, 80 S.Ct. 1563, 1568, 4 L.Ed.2d 1554 (1960); General Box Co. v. United States, 351 U.S. 159, 164 n. 14, 76 S.Ct. 728, 732 n. 14, 100 L.Ed. 1055 (1956). In addition, damages may be awarded under the Fifth Amendment for injuries from a temporary taking where the same injuries would not be compensable if a permanent taking occurred. Kimball Laundry Co. v. United States, 338 U.S. 1, 15, 69 S.Ct. 1434, 1442, 93 L.Ed. 1765 (1949) (going concern value compensable in a temporary taking while not compensable in a permanent taking). Thus, we hold that the taking under consideration is a taking of timber and that the trial court clearly erred by finding otherwise. We next consider when the taking of timber occurred. In United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947), the Court considered when a taking of property by permanent flooding occurred. In Dickinson, a dam began impounding water in 1936. The water level submerged the property in 1937. Dickinson acquired the property after 1937. The water level rose to its high point in 1938. Dickinson sued for compensation in 1943. The government argued that the taking occurred when the dam began to impound water, or, in the alternative, when the flood waters first submerged Dickinson’s property. Under the first view, Dickinson’s suit would have been barred by the six-year statute of limitations. Under the second view, Dickinson’s suit would have been barred because he did not acquire the property until after the taking occurred.
7847781-12093	ORDER REGARDING MOTIONS SHERMAN G. FINESILVER, Chief Judge. This declaratory judgment and breach of fiduciary duty action, filed in July, 1993, has developed into a complex morass of motions for injunctions, stays, dismissal, and to compel arbitration. Jurisdiction is based on 28 U.S.C. § 1332. The instant matter is before the Court on the following motions: 1) Plaintiffs Motion For Temporary Restraining Order, Preliminary And Permanent Injunction; and Defendant Norman Dreyfuss’ Brief In Opposition To Plaintiff’s Motion For Temporary Restraining Order, Preliminary And Permanent Injunction; 2) Defendant Norman Dreyfuss’ Motion To Stay Or Dismiss Plaintiffs Action; and Plaintiffs Brief In Opposition To Defendant Norman Dreyfuss’ Motion To Stay Or Dismiss Plaintiffs Action; 3) Defendant Robert McKinnon’s Motion For Stay Of Action Pending Arbitration And To Compel Arbitration; and Plaintiffs Response To Defendant McKinnon’s Motion For Stay Of Action Pending Arbitration And To Compel Arbitration. The parties waived oral argument on these motions at the Discovery/Scheduling Conference held on November 8, 1993. For the reasons set forth below, Plaintiffs motion for a permanent injunction, and Defendant McKinnon’s motion for a stay pending arbitration, will be granted. Defendant Dreyfuss’s motion for a stay or dismissal will be denied. BACKGROUND Plaintiff commenced this action in the United States District Court for the District of Colorado on July 29, 1993 against Defendants Robert McKinnon and Norman Dreyfuss. The relief requested by Plaintiff is as follows: to have the Agreements entered into on August 19, 1991 and August 1, 1992, respectively, declared void; to rescind both Agreements; for an award of damages based on payments already made to Defendants; and for damages incurred as a result of Defendants’ ultra vires acts. On August 27, 1993, Defendant Dreyfuss filed suit in Federal District Court for the Central District of California, in a case entitled Dreyfuss v. Marquest Medical Products, Inc., Civ. No. 93-528-RG (CTx), claiming breach of the Agreement referenced in Plaintiffs action in Colorado. On September 17, Plaintiff filed its Motion For TRO, Preliminary And Permanent Injunction in the Colorado case, asking this Court for a preliminary injunction and a permanent injunction to enjoin Defendant Dreyfuss from prosecuting the action he commenced in California, and on September 20, 1993, Plaintiff filed a Motion To Dismiss Or In The Alternative For Stay Of Proceedings in the California action. On October 25, 1993, Dreyfuss filed his Motion To Stay Or Dismiss Plaintiff’s Action in this Court. Defendant McKinnon was the founder of Marquest Medical Products, and was its president, chief executive officer, and a director of the company until resigning from the company in 1991. Defendant Dreyfuss served as chairman of the board of the company from 1980 until 1991, and from 1991 to 1992 was “Chairman Emeritus.” In August, 1991, McKinnon signed a “Consulting Agreement” with the company, the terms of which provided that he was to receive $150,000.00 a year over two years in exchange for providing consulting services to Plaintiff. In August, 1992, Defendant Dreyfuss signed an “Agreement” with Plaintiff in which the company agreed to pay him $144,000.00 over two years for past services rendered to Plaintiff. Apparently, both Defendants were paid until September, 1992, when the company suspended payments due to cash flow problems. In April, 1993, Marquest notified Defendant McKinnon that the Board of Directors had decided to immediately discontinue any compensation payments to him. From April until July, 1993, the parties exchanged correspondence through their counsel, and Defendants’ counsel indicated in a letter dated May 12, 1993, that Defendants believed Plaintiff was in breach of both agreements, and that if amounts due were not paid by May 22, 1993, Defendants would bring a legal action to recover. Then, on July 26, the parties had a meeting in Colorado, at which time Plaintiffs counsel indicated there was a possibility that when a new Board of Directors was elected in August, the issues might be presented to it for settlement. Plaintiff acknowledges advising Defendants that the question of the possibility of any payments being made would be brought before the Board, but contends that the meeting was “brief and acrimonious,” that no settlement offers were made by either side, and that Plaintiff never asked that Defendants not file suit, nor did it promise not to bring an action. Plaintiffs Brief In Opposition To Defendant Norman Dreyfuss’ Motion To Stay Or Dismiss Plaintiff’s Action. A hearing was held on October 18, 1993 in the California action, on Marquest’s Motion To Dismiss Or In The Alternative For Stay Of Proceedings, before the Honorable Richard G. Gadbois. At that time, Judge Gadbois stayed the California action for sixty (60) days, pending the outcome of Plaintiffs suit for an injunction in the Colorado action. ANALYSIS The relief requested by Plaintiff calls into play the Court’s equitable powers, and the Court may use its discretion in deciding whether to stay the California action. In general, a district court has discretion to issue an injunction against the prosecution of a later-filed lawsuit involving claims that would be compulsory counterclaims in the first-filed suit. See generally Fed.R.Civ.P. 13(a); 3 Moore’s Federal Practice ¶ 13.14[2] (2d ed.1985 & Supp.1993); 6 Wright, Miller & Kane, Federal Practice and Procedure § 1418 (1990). While a decision on such an injunction is not subject to solution by “mechanical application” of a rule, Warshawsky & Co. v. Arcata National Corp., 552 F.2d 1257, 1253 (7th Cir.1977), it is evident in this case that the second-filed suit clearly fits the criteria established by Fed. R.Civ.P. 13(a). The allegations in both of the federal court actions at issue here include the contract signed by Defendant Dreyfuss upon his resignation from Marquest Medical Products. While Defendant McKinnon is not presently a party in the California litigation, the issues relating to both Defendants, and the remedies sought as to both, are the same from the perspective of the Plaintiff in the Colorado case. The general first-filed rule is appropriate in this matter. See Martin v. Graybar Electric Co., Inc., 266 F.2d 202, 204 (7th Cir.1959): [A] party who first brings an issue into a court of competent jurisdiction should be free from the vexation of concurrent litigation over the same subject matter, and an injunction should issue enjoining the prosecution of the second suit to prevent the economic waste involved in duplicating litigation which would have an adverse effect on the prompt and efficient administration of justice unless unusual circumstances warrant. The Court is not persuaded by Defendant’s arguments that unusual circumstances concerning these two actions should prevent the application of the rule. Defendant cites cases in which the “race to the courthouse” was “won” by a party by only a few days, or in which settlement negotiations were quite far along. Columbia Pictures Industries, Inc. v. Schneider, 435 F.Supp. 742 (S.D.N.Y.1977); Don King Productions, Inc. v. Douglas, 735 F.Supp. 522 (S.D.N.Y.1990). The facts of this case do not fit such a pattern. Because the issuance of an injunction is not mandatory, however, the Court will undertake an examination of equitable principles in order to determine whether or not the facts counsel enjoining the second-filed action at issue. Columbia Plaza Corp. v. Security National Bank, 525 F.2d 620, 627 (D.C.Cir.1975). Typically, in deciding whether or not an injunction is warranted, the court considers the following factors: the probability of success on the merits; whether the injunction will maintain the status quo; whether irreparable injury will ensue absent an injunction; whether there is an adequate remedy at law; the degree of hardship to the nonmovant; and whether the equities favor the movant. National Association Of Psychiatric Treatment Centers v. Weinberger, 661 F.Supp. 76, 79 (D.Colo.1986); Royal Crown Bottling Co. v. Royal Crown Cola Co., 358 F.Supp. 290, 294 (D.Colo.1972). See also Equifax Services, Inc. v. Hitz, 905 F.2d 1355 (10th Cir.1990) (setting forth four main elements movant must establish in order to provoke the issuance of a preliminary injunction). Plaintiff argues that if it is required to prosecute two separate actions involving the two Defendants, it will suffer irreparable damage as a result not only of the excessive costs involved in litigating what is essentially the same matter in two places, but also because doing so may subject it to inconsistent decisions. Plaintiff also contends that its action in Colorado, which involves both McKinnon and Dreyfuss, and in which the allegations against both Defendants are closely intertwined, is the most efficient manner in which to proceed. Because we have determined that Defendant McKinnon’s motion to compel arbitration should be granted, see infra, this argument is less persuasive. However, the case as to McKinnon will only be stayed pending arbitration, and may require further action in this Court. Defendant Dreyfuss argues that Plaintiff has adequate remedies at law. Dreyfuss notes that Plaintiff filed a motion to dismiss or to stay the California proceedings, and supplemental filings by the parties show that the California action has in fact been temporarily stayed. However, that stay lasts only for sixty days, and, as noted by Dreyfuss, once that stay is over, unless an injunction is issued, the California proceedings are expected to go forward apace. Thus, Dreyfuss’ argument that a legal remedy in the California proceedings would solve Plaintiff’s problem, and that Plaintiff’s motion is premature, is weak. The actions complained of took place in Colorado, the corporation is located in Colorado, and many witnesses would be in Colorado. The resulting burden on Plaintiff of not issuing an injunction would outweigh the injury to Defendant if one is granted. The balance of convenience clearly tips in favor of the first-filed action in this case. Plaintiff’s action, in addition to being one for a declaratory judgment regarding the contracts entered into with Defendants, also seeks damages based on actions which took place prior to the execution of the agreements. The Court is persuaded, therefore, that Plaintiff does not seek to use a declaratory judgment action solely as “procedural fencing either to secure delay or to choose a forum.” American Automobile Insurance Co. v. Freundt, 103 F.2d 613, 617 (7th Cir.1939). Additionally, the pending California case would not necessarily settle the issues in the present action, as this case involves issues that go beyond the signing of the “golden parachute” agreements. The public interest will thus be served by the avoidance of duplicative and piecemeal litigation. See Martin, 266 F.2d at 204. Granting the requested injunctive relief will preserve the status quo in this case, and the equities favor Plaintiffs first-filed action going forward without the need to defend a second, intimately related suit in California. For the reasons stated above, Plaintiffs motion for a permanent injunction is granted, and Defendant Dreyfuss’ motion for a stay or dismissal of Plaintiffs action is denied. As for Defendant McKinnon’s Motion For Stay Of Action Pending Arbitration And To Compel Arbitration filed October 27, 1993, the Court is persuaded that the issues arising in Plaintiffs suit are subject to the arbitration clause contained in the Consulting Agreement between McKinnon and Mar-quest, attached as Exhibit 1 to Defendant McKinnon’s motion. Plaintiff contends that the dispute does not center on an “interpretation” of the Agreement; that the intertwining doctrine bars arbitration where some arbitrable claims are converted to nonarbitrable claims; and that certain of its defenses to the Agreement, such as fraud in the inducement and lack of consideration, preclude arbitration.
3384133-16449	EVANS, Circuit Judge. We last saw this case just over three years ago when we remanded it for further proceedings on a single issue — breach of contract. A grant of summary judgment against Matthews on retaliation under Title VII was affirmed. Matthews v. Wis. Energy Corp., Inc., 534 F.3d 547 (7th Cir.2008) (Matthews I). Bernadine Matthews, a former employee of Wisconsin Energy Corporation, Inc. (WEC), sued WEC, alleging it violated a settlement agreement by breaching a “reference-request provision.” On remand, a jury sided with WEC, and now Matthews appeals for the second time. Because a jury has rendered a verdict, we view the evidence in the light most favorable to that verdict. Cruz v. Town of Cicero, Ill., 275 F.3d 579, 583 (7th Cir.2001). Here are the facts. Matthews was employed by WEC from 1980 to 1999. When she left WEC, the parties entered into an agreement that included provisions regarding how WEC would respond to reference requests about her from prospective employers. In 2003, Matthews sued WEC alleging that it breached those provisions. To resolve that suit, the parties entered into a confidential settlement agreement (the Agreement) which addressed the information WEC would disclose to prospective employers: Wisconsin Gas agrees to respond to any request for a reference regarding Matthews in a manner that is consistent with the Wisconsin Gas policy in place regarding reference checks at the time. Wisconsin Gas will not respond to any request for a reference regarding Matthews by indicating that Matthews was terminated or fired from Wisconsin Gas. WEC’s policy regarding reference requests was to confirm that the individual had worked there, and to provide the dates of employment, salary, and position. WEC would not release any subjective information about the former employee’s performance. In May 2005, Matthews filed this lawsuit, alleging that WEC breached the Agreement’s reference-request provision by failing to properly verify her employment twice in 2004. A few days prior to filing the suit, Matthews, in an effort to find a new job, enrolled in a Social Security Administration (SSA) program called the “Ticket to Work Program” which allows disabled individuals receiving social security benefits to work while continuing to receive their benefits. See generally, The Ticket Program: What is the Ticket Program?, http://www.yourtickettowork. com/program_info. (last visited May 19, 2011). In accordance with the program, Matthews hired Howard Schwartz, President and CEO of Career Consulting Services of America (CCSA), a consultant who specializes in helping disabled individuals seek employment through the Ticket To Work Program. Matthews signed a SSA Consent and Release of Information form, giving Schwartz permission to talk to third parties about information he determined was relevant to her job search. She also signed a Confidential Information Release Authorization (CIRA), which was specific to Schwartz’s company. Under the CIRA, she voluntarily consented to the disclosure to CCSA of information related to her personal background, health, employment, education and other data, and specifically granted Schwartz the right to contact her former employers to elicit personal information that he deemed potentially helpful to the job search. For several months, Schwartz had no luck finding Matthews a job. He approached her about his difficulties, and she claimed that WEC was blackballing her. When Schwartz asked why, Matthews said she was unable to discuss it because of the confidentiality provision in the Agreement. She directed Schwartz to reach out to her lawyer, Janet Heins. Schwartz called Heins who confirmed that Matthews had filed a lawsuit against WEC. After his conversation with Heins, Schwartz revised Matthews’ resume — removing her WEC employment entirely. He sent the new resume to Heins and Matthews for authorization and also called Heins to ask if he could contact WEC for a reference. A few weeks later, Heins called Schwartz authorizing him to contact WEC. Schwartz then faxed a letter to Art Zintek, Vice-President of Human Resources at WEC. The letter indicated that CCSA was contracted by the SSA to assist Matthews in her job search and requested that WEC confirm Matthews’ work history at WEC and provide comments regarding her work performance. It also said that a release authorizing WEC to provide the information was enclosed, but Schwartz failed to include it. When Zintek’s office received the fax, due to Matthews’ pending suit against WEC, it was forwarded to Lynne English in the Legal Department because she had handled the 2003 settlement agreement. In October 2005, English called Schwartz to discuss his letter. During the conversation, she told Schwartz that he had not included a release. Schwartz said he would send the release, but he also pushed English to answer his reference request over the phone. She testified that she told him she could not because “[Matthews] has sued us for how we respond to reference requests,” or “we’re in litigation with her.” English also informed Schwartz that the written response to his reference request would only provide basic information and would not include the comments on Matthews’ performance he had requested. After the conversation, Schwartz sent English the release form. WEC then mailed Schwartz a letter verifying Matthews’ employment. At trial, Matthews admitted that WEC’s response letter was substantially correct. In the first round of this case, the district judge granted WEC’s motion for summary judgment as to all claims and awarded it $173,232.44 in attorneys fees, pursuant to the fee-shifting provisions in the Agreement. Matthews appealed, and we affirmed the dismissal of all claims except the breach of contract claim predicated on WEC’s communication with Schwartz. We remanded the case for further proceedings on this issue and vacated the award of attorney’s fees. Matthews I, 534 F.3d at 559-60. On remand, a jury heard Matthews’ breach of contract claim and returned a general verdict finding that WEC did not breach the Agreement. The district judge reinstated his 2007 fee award. WEC then filed a post-trial motion for additional attorney’s fees under the Agreement, submitting redacted billing statements and declarations from its outside counsel authenticating them. The judge granted WEC’s motion — finding the fees commercially reasonable and noting that WEC paid the legal bills before the verdict, without any assurance that they would be recouped — and awarded attorney’s fees in the amount of $522,527.75 and nontaxable costs and expenses in the amount of $40,493.64. On this appeal, Matthews argues that the judge erred by: (1) instructing the jury it could find that Matthews waived enforcement of the Agreement; (2) refusing to bifurcate the issues of breach and damages in the jury instructions; (3) allowing the case to go the jury with an agency instruction; and (4) awarding WEC attorney’s fees and costs. Matthews first claims that the judge erred when he instructed the jury that it could find Matthews “waived” enforcement of the Agreement by authorizing Schwartz to elicit personal information about her. We review a district judge’s decision regarding jury instructions for abuse of discretion. Consumer Products Research & Design, Inc. v. Jensen, 572 F.3d 436, 438 (7th Cir.2009). Moreover, we will only grant a new trial if the verdict is against the clear weight of the evidence. Tammi v. Porsche Cars North America, Inc., 536 F.3d 702, 708 (7th Cir.2008). Matthews makes two arguments with regard to waiver. First, WEC failed to plead waiver as an affirmative defense, and therefore the judge erred by allowing WEC to argue waiver and by including the instruction about waiver. WEC notes, however, that Matthews never pled — in her complaint or an amended complaint— the facts that give rise to the use of waiver as a defense. Instead, Matthews seems to argue that WEC should have preemptively pled waiver regarding the conversation between English and Schwartz which had not yet occurred when she filed her complaint. This argument is meritless. WEC was not obligated to forecast future events. Furthermore, even if Matthews had included the phone conversation in her complaint or an amended complaint, we have previously held that the “rule that forfeits an affirmative defense not pleaded in the answer (or by an earlier motion) is, we want to make clear, not to be applied rigidly.” Herremans v. Carrera Designs, Inc., 157 F.3d 1118, 1123 (7th Cir.1998). “The failure to plead an affirmative defense in the answer works a forfeiture only if the plaintiff is harmed by the defendant’s delay in asserting it.” Carter v. United States, 333 F.3d 791, 796 (7th Cir.2003). Here, Matthews has not argued that she was prejudiced when the judge allowed WEC to argue waiver as a defense. WEC did not call any new witnesses or introduce any new evidence as a result of the waiver defense. All of the evidence at issue was in the possession of Matthews’ key witness, Schwartz. See Williams v. Lampe, 399 F.3d 867, 871 (7th Cir.2005) (finding that where the plaintiff “does not suggest any prejudice to her from the defendants’ delay [in asserting a defense] other than her subsequent preparation for trail, the court did not abuse its discretion in allowing the defense”). Matthews also argues that the judge erred when he gave a waiver instruction to the jury because the Agreement required waivers to be in writing. According to Matthews, the provision of the Agreement — “The terms of this Agreement may not be altered, amended, or waived except by another written agreement signed by the Parties” — should have rendered an instruction on waiver a no-no. We disagree. WEC never contended that the parties met and agreed to modify the terms of the settlement agreement. The sort of waiver question put to the jury concerned unilateral waiver of entitlements under an unchanged contract. WEC did not contend (and the instruction did not ask the jury to find) that there had been a change in “the terms” of the agreement (which is what the change-only-in-writing clause covers). It is common for people to forego benefits that cannot be waived through a contract. For example: No employee can agree with the employer that the Age Discrimination in Employment Act will not apply to the job in question; the statute’s benefits can’t be waived or altered by contract. But anyone can retire whenever he wants, and in that sense waive the statute’s benefits. That is how the instruction here referred to “waiver.” The jury was not asked to find that Matthews and WEC changed the terms of their agreement, so that in the future WEC could respond to inquiries by telling other potential employers about Matthews’ litigation history or that Matthews had been fired. The question put to the jury was whether Matthews unilaterally authorized disclosure to Schwartz (who was acting as her agent) on this one occasion. In that sense, the giving of an instruction waiver was not error. Matthews’ second claim is that the judge erred “by refusing to bifurcate the issues of breach and damages in the substantive jury instructions.” We review the judge’s decision regarding jury instructions for abuse of discretion. Jensen, 572 F.3d at 438. In his instructions, the judge told the jury: In order to prevail on her breach of contract claim, Bernadine Matthews must prove each of the following elements by a preponderance of the evidence: First, the existence of a valid contract creating obligations between the parties; Second, a material breach of the contract by Wisconsin Energy, and Third, damages to Bernadine Matthews flowing naturally and probably from the breach. Matthews argues that this instruction was improper because the jury had to find damages before it could find that a breach had occurred. But the instruction is in line with the elements of a breach of contract claim in Wisconsin. See Matthews I, 534 F.3d at 553 (“The elements for a breach of contract in Wisconsin are familiar; the plaintiff must show a valid contract that the defendant breached and damages flowing from that breach.”) (citing Northwestern Motor Car, Inc. v. Pope, 51 Wis.2d 292, 296, 187 N.W.2d 200 (Wis.1971)). While we agree with Matthews that given the somewhat unusual fee-shifting provisions of the settlement agreement it might have been wiser to more clearly separate out the questions of breach and damages, we are mindful of our duty to view jury instructions as a whole. Jury instructions are considered “both in the context of the other instructions given and in light of the allegations of the complaint, opening and closing arguments and the evidence of record.” Lynch v. Belden & Co., Inc., 882 F.2d 262, 267 (7th Cir.1989). Here, the judge also instructed the jury that it must determine whether WEC breached the settlement agreement, and that if it found a breach but her damages had no monetary value, it must return a verdict in her favor and award her nominal damages. With that being the case, we cannot conclude that the judge incorrectly instructed the jury on the issue of breach and damages. Next, Matthews claims that the judge abused his discretion when he allowed the case to go to the jury with the instruction that it could find Schwartz was acting as Matthews’ agent. Matthews argues that the evidence was insufficient to support an agency instruction. This argument fails for several reasons. First, the agency instruction Matthews now challenges was submitted to the court in the parties’ Joint Final Pretrial Report. WEC notes that' — despite Matthews claim to the contrary — this is one of the jury instructions upon which the parties agreed. Second, although Matthews correctly states that she objected to the instruction, she misstates the reason for her objection. Matthews’ objection acknowledges that: [0]ne might also view Howard Schwartz as Matthews’ agent with the undertaking being that of placing her in employment. The evidence elicited by [WEC] ... however, was designed to show that in requesting a reference from WEC, Schwartz was not acting on behalf of Matthews, but instead, at the behest of Attorney Heins. In no way does this objection undermine the instruction on agency.. In fact, it does exactly the opposite — Matthews’ objection asserts that Schwartz is her agent, working on her behalf, and not at the behest of Heins. Similarly, Matthews read into evidence a stipulation that presumed Schwartz was her agent: “[T]he defendant will not argue that Mr. Schwartz’s status as Ms. Matthews’ agent was negated by virtue of the fact that she had previously assigned her ticket to work to the Department of Vocational Rehabilitation.” Matthews also signed CCSA’s waiver, granting Schwartz the authority to elicit information on her behalf, which he did when he spoke to attorney English. Therefore, while we agree that these acknowledgments of agency are not dispositive of Schwartz’s status as Matthews’ agent, given the evidence presented a jury could reasonably find that Schwartz was acting as Mat thews’ agent and that, consequently, WEC did not breach the Agreement. Finally, Matthews claims that the district judge erred in awarding WEC $563,021.39 in attorney’s fees and costs. We review a district court’s award of attorney’s fees and costs for abuse of discretion. TruServ Corp. v. Flegles, Inc., 419 F.3d 584, 593 (7th Cir.2005). The award of attorney’s fees is governed, in this case, by the Agreement, which states: [T]he breaching party will indemnify and hold the non-breaching party harmless for any costs, damages or expenses, including reasonable attorney’s fees, arising out of the breach of the Agreement by that party, or arising out of any suit or claim to enforce the Agreement. The parties agree that in the event that one of the Parties hereto commences a lawsuit or other legal proceeding alleging that the other Party breached the Agreement, the prevailing Party in that action shall be entitled to recover her or its reasonable attorneys fees and expenses incurred in such lawsuit or legal proceeding from the non-prevailing Party- The judge held that Matthews filed suit and lost when the jury found WEC did not breach the Agreement, and WEC was therefore entitled to reasonable attorney’s fees under the Agreement. Matthews attacks the judge’s award of attorney’s fees on several levels.
12176274-14919	MEMORANDUM OPINION Marvin Isgur, UNITED STATES BANKRUPTCY JUDGE On May 31, 2016, Petroleum Products and Services, Inc. removed its state court lawsuit to recover payment for $1.5 million in outstanding debt from McClinton Energy Group, LLC to this Court. (ECF No. 1). On June 30, 2016, McClinton filed a motion to remand on the grounds of mandatory abstention under 28 U.S.C. § 1334(c)(2), equitable remand and permissive abstention under 28 U.S.C. §§ 1452(b) and 1334(c), and a lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1334(b). (ECF No. 5 at 8). The Court finds mandatory abstention is appropriate under § 1334(c)(1) and accordingly remands the case to state court under § 1452(b). Background Petroleum Products sells products and services in the oil and gas exploration and production industry, • including oilfield equipment. (ECF No. 1-10 at 24). McClin-ton bought oilfield equipment" from Petroleum Products between 2007 and 2015. (ECF No. 1-10 at 24). McClinton accepted and paid for the oilfield equipment it received from Petroleum Products for several months. (ECF No. 1-10 at 25). However, McClinton failed to pay Petroleum Products for the equipment it received after February 2015. (ECF No. 1-10 at 25). Accordingly, McClinton has an outstanding balance with Petroleum Products for oilfield equipment it accepted. (ECF No. 1-10 at 25). Petroleum Products began demanding McClinton pay its outstanding balance on the oilfield equipment in or around August 2015. (ECF No. 1-10 at 25). On November 17, 2015, Petroleum Products made a formal demand on McClinton to pay the outstanding balance on its account. (ECF No. 1-10 at 25). As of May 31, 2016, ; , McClinton owed $1,460,535.65 on its open account for accepted, but unpaid for, oilfield equipment. (ECF No. 1-10 at 26). On December 18, 2015, Petroleum Products and its co-plaintiff WDI Drilling Equipment Services, LLC (“DES”) filed suit against McClinton in the 113th Judicial District Court of Harris County, Texas. (ECF No. 5 at 4). Petroleum Products asserted two causes of action against McClinton: (1) suit on sworn account, alleging that McClinton was obligated to make payments for goods received on an open account; and (2) quantum meruit, alleging McClinton accepted and benefited from the goods delivered to it by Petroleum Products. (ECF No. 6 at 2). McClin-ton filed a verified denial on February 16, 2016, asserting that not all lawful offsets and credits had been applied to its accounts with Petroleum Products after it received defective equipment from Petroleum Products that led to interruptions in business and monetary damages. (ECF No. 5 at 5). Petroleum Products filed for bankruptcy in the United States Bankruptcy Court for the Southern District of Texas, Houston Division, on March 4, 2016. (Case No. 16-31201). Prior to removal, on April 20, 2016, Petroleum Products filed a motion for summary judgment. (ECF No. 1-10). Additionally, on May 31, 2016, Petroleum Products sought leave to file supplemental summary judgment evidence in support of its motion for summary judgment. (ECF No. 1-21). McClinton filed objections and a response to Petroleum Products’ motion for summary judgment, as well as a motion for continuance to allow for discovery, on May 20, 2016. (ECF No. 5 at 6). The state court granted McClinton’s motion for continuance on May 27, 2016. (ECF NO. 5 at 6-7). Petroleum Products filed a notice of removal on May 31, 2016, removing the state court action against McClinton to this Court and commencing this adversary proceeding. (ECF No. 1). On June 30, 2016, McClinton filed a motion to remand this proceeding to the state court on the grounds of mandatory abstention under 28 U.S.C. § 1334(c)(2), equitable remand and permissive abstention under 28 U.S.C. § 1452(b) and 1334(c), and a lack of.subject matter jurisdiction over the claims of DES pursuant to 28 U.S.C. § 1334(b). (ECF No. 5 at 8). Petroleum Products filed a response to McClinton’s motion to remand on July 19, 2016, asserting that McClinton failed to offer support for its permissive abstention claim, that this adversary proceeding is core and thus unfit for mandatory abstention, and that the Court has pendent and ancillary jurisdiction over Petroleum Products’ original claims. (ECF No. 6 at 8-10). Analysis When a party files for bankruptcy, suits involving claims related to the bankruptcy may be removed to a bankruptcy court. See, e.g., Khan v. Hakim, 201 Fed.Appx. 981, 982 (5th Cir. 2006). However, once before the bankruptcy court, multiple ways exist for the bankruptcy court to remand the proceeding back to state court: (1) mandatory abstention under 28 U.S.C. § 1334(c)(2); (2) permissive abstention under 28 U.S.C. § 1334(c)(1); or (3) equitable remand under 28 U.S.C. § 1452(b). See In re Mugica, 362 B.R. 782, 790 (Bankr. S.D. Tex. 2007). Mandatory Abstention Under 28 U.S.C. § 1334(c)(2): Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. A district court must abstain from hearing state law claims when: “(1) the claims have no independent basis for federal jurisdiction other than § 1334(b); (2) the claims are non-core; (3) an action has been commenced in state court; and (4) the action can be timely adjudicated in state court.” In re Mugica, 362 B.R. at 792 (citing Schuster v. Mims (In re Rupp & Bowman Co.), 109 F.3d 237, 240 (5th Cir. 1997)). The burden to prove that all of these elements of mandatory abstention are present is on the moving party. See In re Petroleum Prod. & Servs., Inc., 556 B.R. 296 (Bankr. S.D. Tex. 2016). McClinton established all of the elements for mandatory abstention. Petroleum Products and McClinton agree that the claims asserted in this proceeding are solely state law claims. (ECF No. 6 at 22). Accordingly, the first factor for mandatory abstention is met in this proceeding. Petroleum Products’ state law claims in this proceeding are non-core. Mandatory abstention applies only to non-core proceedings—that is, proceedings “related to a case under title 11,” but not “arising under title 11, or arising in a case under title 11.” 28 U.S.C. §§ 157(b)(1), 1334(c)(2). Matter of Gober, 100 F.3d 1195, 1206 (5th Cir. 1996). A proceeding is core under 28 U.S.C. § 157 “if it invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case.” Wood v. Wood (In re Wood), 825 F.2d 90, 97 (5th Cir.1987). The fact that a claim arises under state law is not disposi-tive, as “many truly bankruptcy issues, like the determination of the basis for creditors’ claims, turn on state law.” Soutkmark Corp. v. Coopers & Lybrand, 163 F.3d 925, 930 (5th Cir. 1999). Nevertheless, In re Wood cautions against interpreting § 157(b) in a way that causes “the entire range of proceedings under bankruptcy jurisdiction [t]o fall within the scope of core proceedings.” 825 F.2d at 95. A claim based on state created rights, which could have proceeded in state court had there been no bankruptcy, is likely not core. Id. at 97. Petroleum Products asserts that its state law claims are core because they concern: the administration of its bankruptcy estate; the allowance or disallowance of claims against the estate; counterclaims against persons filing claims; turnover of funds due to the estate; the determination of the validity, extent, and priority of the movant’s lien; and the effects of the liquidation of the assets of the estate. (ECF No. 6 at 21). A state contract claim that does not depend on the bankruptcy laws for its existence is not a core proceeding. In re Wood, 825 F.2d at 96, Here, Petroleum Products’ claims do not invoke a substantive right provided by Title 11 nor are they of a nature that could only arise in a bankruptcy case— they are simply state contract claims. Id. at 97. Initially, it was unclear whether McClintock was asserting a counterclaim against the Estate. A counterclaim could directly implicate the claims allowance process and might be core. However, McClin-tock stipulated that it seeks only recoupment and that it waives any affirmative claim against the estate. McClinton’s rights of recoupment do not constitute claims within bankruptcy, making recoupment a non-core issue. See Reiter v. Cooper, 507 U.S. 258, 265 n.2, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) (“Recoupment permits a determination of the ‘just and proper liability on the main issue,’ and involves determination of the defendant’s liability.”); 4 COLLIER ON BANKRUPTCY ¶ 553.10[1] (Alan N. Resnick & Henry J. Sommer eds., 16th ed.) (“As long as this right of reduction is asserted as a defense and not as an independent claim for relief, it does not constitute a ‘claim.’ ”). Additionally, the Fifth Circuit in In re Wood cautioned against treating any proceeding that affects the estate as core because “otherwise, the entire range of proceedings under bankruptcy jurisdiction would fall within the scope of core proceedings.” 825 F.2d at 95. Although McClinton potentially owes Petroleum Products a significant sum of money, this fact does not change the nature of Petroleum Products’ state law claims. As set forth above, McClinton’s recoupment defense is not a claim against the estate; it is a defense to its own liability. Because these claims do not invoke a substantive right provided by Title 11 nor are they of a nature that could only arise in a bankruptcy case, Petroleum Products’ state law claims are non-core even though they may affect the bankruptcy estate. Petroleum Products and McClinton both agree that Petroleum Products’ lawsuit was originally filed in state court. (ECF No. 6 at 22). Accordingly, the third factor for mandatory abstention is met in this proceeding. This adversary proceeding can be timely adjudicated in state court. Under the fourth mandatory abstention factor, the Court must determine if the state court could timely adjudicate Petroleum Products’ state law claims. The party asserting that an action can be timely adjudicated in state court must provide the court with more than a “naked assertion” that the state court can timely adjudicate the claims. J.T. Thorpe Co. v. Am. Motorists, No. CIV.A. H-02-4598, 2003 WL 23323005, at *3 (S.D. Tex. June 9, 2003); see also WRT Creditors Liquidation Trust v. C.I.B.C. Oppenheimer Corp., 75 F.Supp.2d 596, 605-06 (S.D. Tex. 1999); Allied Mech. & Plumbing Corp. v. Dynamic Hostels Hous. Dev. Fund Co., 62 B.R. 873, 878 (Bankr. S.D.N.Y. 1986). “In instances where federal courts have found that state courts could adjudicate the dispute in a timely manner, the movant introduced evidence that the suit had already been prosecuted to some extent in the state court, which had issued various orders and become familiar with the case.” In re Doctors Hosp. 1997, L.P., 351 B.R. 813, 846 n. 29 (Bankr. S.D. Tex. 2006) (citing Broyles v. U.S. Gypsum Co., 266 B.R. 778, 782-83 (E.D. Tex. 2001)). McClinton established that this proceeding can be timely adjudicated in state court. When this proceeding was removed to this Court, Petroleum Products’ claims had been litigated in state court for more than five months. (ECF No. 5 at 4). During that time, the state court generated a docket control order setting dates for expert witness designation, the close of discovery, and dispositive motions, as well as for trial, June 12, 2017. (ECF No. 5 at 6). Additionally, the state court was amenable to holding a trial before its docketed date based on an agreement by the parties. (ECF No. 5 at 7). This Court has previously held such evidence to be sufficient to show that the state court will be familiar with the case and prosecute it efficiently. See In re Petroleum Prod. & Servs., Inc., 556 B.R. 296 (Bankr. S.D. Tex. 2016); In re Mugica, 362 B.R. 782, 793 (Bankr. S.D. Tex. 2007). Furthermore, this Court would be unable to adjudicate this proceeding in a more timely fashion than the state court. In evaluating this issue, the Court examined McClintock’s recoupment defense. The Court’s review was for the purpose of assuring that the recoupment allegations were not made for a dilatory purpose. Accordingly, the Court reviewed the re- coupment allegations to determine if they were “colorable” under state law. Under Federal Rule of Civil Procedure 56, a federal court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Crv. P. 56(a). A party may use an affidavit to support or oppose a summary judgment motion, but such an affidavit “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed, R. Civ. P. 56(c). Tony McClinton’s affidavit, submitted by McClinton in support of its recoupment allegations, meets the requirements of Rule 56. It raises a genuine dispute as to a material fact in this proceeding. First, Mr. McClinton illustrated his personal knowledge of the summary judgment issues by pointing to his role as the CEO and President of McClinton, his experience of the costs associated with repairs stemming from allegedly faulty Petroleum Products oilfield equipment, and a personal conversation and agreement with Petroleum Products’ representatives regarding Petroleum Products’ liability for McClinton’s' damages. (ECF No. 11-3 at 2-3). But see Stagliano v. Cincinnati Ins. Co., 633 Fed.Appx. 217, 221 (5th Cir. 2015) (“Shingler’s statement that he relied on the unspecified observations of others to reach his conclusion did nothing to address the affidavit’s dearth of specific factual details.”); Aqua Log, Inc. v. Lost & Abandoned Pre-Cut Logs & Rafis of Logs, 101 F.Supp.3d 1345, 1354-55 (M.D. Ga. 2015) ([D]ue to its generality, the affidavit is insufficient to raise a genuine dispute of material fact upon the record before the Court.”). As set forth in the next paragraph, because McClinton’s affidavit references statements made by Petroleum Products’ officers, the statements are not hearsay. Fed. R. Evid. 801. Even if conclusory, the statements constitute admissions of fault by Petroleum Products. The admissions are sufficient to preclude summary judgment. The fact that Mr. McClinton’s affidavit is arguably self-serving does not prevent it from creating a fact issue. G.R. Pittman Const. Co. v. Nat’l Fire Ins. Co. of Hartford, 453 Fed.Appx. 439, 443 (5th Cir. 2011).
789919-4844	ORDER AND JUDGMENT McCONNELL, Circuit Judge. The Defendant, Isauro Samora-Sanchez, appeals the denial of his Motion to Impose Sentence Without Regard to Sentencing Guidelines. After denying the motion, the district court sentenced Mr. Samora-Sanchez, pursuant to the United States Sentencing Commission Guidelines Manual (USSG or “the Guidelines”), to a 41-month term of imprisonment for reentry of a deported alien previously convicted of an aggravated felony. Mr. Samora-Sanchez argues that the Guidelines are unconstitutional because the PROTECT Act’s amendments to the Guidelines, Pub.L. 108-21, § 401, 117 Stat. 650 (2003), violate the separation of powers. Because the Supreme Court has held unequivocally that Congress has the power to establish determinate sentences, we AFFIRM. I. Factual Background. On October 14, 2003, a Border Patrol Agent encountered Mr. Samora-Sanchez in a Greyhound bus station in Albuquerque, New Mexico. Mr. Samora-Sanchez admitted that he was a Mexican citizen illegally in the United States. A check of immigration records revealed that Mr. Samora-Sanchez had been deported from Laredo, Texas on February 28, 2001. This deportation occurred after he was convicted in June 2000 in Oklahoma of assault with a deadly weapon and carrying a firearm while intoxicated. There was no record of Mr. Samora-Sanchez receiving consent from the Secretary of Homeland Security to reapply for admission into the United States. Mr. Samora-Sanchez entered into an agreement pleading guilty to the offense of reentry of a deported alien previously convicted of an aggravated felony in violation of 8 U.S.C. § 1326(a)(1) and (2), and (b)(2). At sentencing he requested a downward departure of two levels, based on USSG § 5H1.6, due to his extensive family obligations. He also entered a Motion to Impose a Sentence Without Regard to the Sentencing Guidelines. He argued that the PROTECT Act amendments rendered the Guidelines unconstitutional because the amendments impermissibly encroached on judicial discretion. The district court orally denied the motion because the PROTECT Act was not relevant to Mr. Samora-Sanchez’s case. The court then proceeded with sentencing under the Guidelines. The court determined that the base offense level was 8. Mr. Samora-Sanehez’s prior deportation added 16 levels to the base offense level. He received a 3-level reduction for acceptance of responsibility. His criminal history category was II based on a DUI and the Oklahoma assault and weapons conviction. Using an offense level of 21, the court determined that his sentencing range was 41 to 51 months and sentenced him to 41 months. II. Analysis. Mr. Samora-Sanchez argues that the Guidelines are unconstitutional for two reasons. First, he contends that the PROTECT Act’s amendments to the Guidelines render the Guidelines unconstitutional. Mr. Samora-Sanchez does not have standing to bring this claim. To have standing, a plaintiff must show (1) an injury in fact that is concrete, particularized, actual and imminent, rather than conjectural and hypothetical; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision. Wyoming Sawmills v. United States Forest Service, 383 F.3d 1241, 1246 (10th Cir.2004). Mr. Samora-Sanchez’s challenge to the PROTECT Act does not satisfy the second requirement, because the PROTECT Act had no effect on his sentence. The PROTECT Act restricts the authority of district courts to grant downward departures in child sex cases and other crimes against children. See Pub.L. 108-21, § 401, 117 Stat. 650, 667, 672-73. It also alters the standard of review for appellate courts reviewing downward departures. See id., 117 Stat. 670-71. Mr. Samora-Sanchez was not convicted of a crime against children, and there was no downward departure to be appealed. Consequently, he cannot demonstrate the requisite causal connection between his injury and his claims concerning the PROTECT Act. As a result, we will not consider his arguments that the amendments impermissibly encroach on the judicial function. Second, Mr. Samora-Sanchez argues that the application of the Guidelines to him violates the separation of powers. The statute Mr. Samora-Sanchez was charged with violating, 8 U.S.C. § 1326(b)(2), provides for a maximum sentence of 20 years and contains no mandatory minimum. Mr. Samora-Sanchez contends that the Guidelines usurp the “essential judicial function” of determining his sentence within the 20-year range. Aplt. Brief-in-Chief 18. Mr. Samora-Sanchez does have standing to bring this claim. His sentence is a concrete injury, there is a causal connection between the Guidelines and his injury, and a judgment striking down the Guidelines as applied or on their face would redress his injury.
11909414-30968	EBEL, Circuit Judge. This case involves a dispute concerning the United States Forest Service’s approval of a timber sale, known as the “Banner Timber Sale,” in the Medicine Bow National Forest. Friends of the Bow (“Friends”), an environmental group, objected to the sale,- and brought suit in the District of Colorado against the Forest Service and the two Forest Service officials who approved the sale. Bighorn Lumber Co., the purchaser of the sale, intervened to defend the sale. Specifically, Friends claims that: (1) approval of the sale was “arbitrary and capricious” under the Administrative Procedures Act; (2) the Forest Service should have conducted a supplemental environmental assessment based on new evidence concerning the forest’s sustainable yield; (3) the Forest Service did not respond specifically to issues raised by Friends in their administrative appeal of the decision, as is required by 5 U.S.C. § 555(e) (1994); and (4) the Forest Service violated 5 U.S.C. § 555(b) (1994) in failing to respond to Friends’ request that the Service prepare a supplemental environmental assessment. The district court granted summary judgment against Friends on all four claims, and Friends now appeals. We have jurisdiction under 28 U.S.C. § 1291 (1994) and affirm. Statutory Background The factual background of this case is best understood in the context of the relevant statutes, as the most relevant facts are the various procedures the United States Forest Service has gone through in attempting to conduct the Banner sale, and the various objections that Friends has made to those procedures based on the relevant statutes. Accordingly, we first set forth the applicable statutory requirements before discussing the factual background of the case. There are three statutes relevant to this appeal: the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq.; the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq.; and the Administrative Procedure Act. of 1946 (“APA”), 5 U.S.C. § 551 et seq. We will discuss each statute in turn. A. The National Environmental Policy Act NEPA sets forth “a set of ‘action-forcing’ procedures that require that agencies take a ‘hard look’ at environmental consequences.” Robertson v. Methow Valley Citizens’ Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989). Importantly, the statute does not impose substantive limits on agency conduct. . Id. Rather, once environmental concerns are “adequately identified and evaluated” by the agency, NEPA places no further constraint on agency actions. Id. The primary procedure that NEPA establishes to ensure that agencies take a “hard look” at the environmental consequence of their actions is the Environmental Impact Statement (“EIS”). An EIS is a detailed statement of the environmental impact of a proposed action, and must be prepared whenever a federal agency proposes a “major Federal action[] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332 (1994). The NEPA makes no mention of Environmental Assessments (“EAs”), which are the documents agencies prepare in preparation for less significant agency actions. However, the Council on Environmental Quality (CEQ) has issued regulations that govern agency decisions regarding whether to prepare an EIS, and those regulations also outline the requirements for preparing an EA. 40 C.F.R. § 1500 et seq. The Supreme Court has stated that these regulations are entitled to “substantial deference.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 372, 109 S.Ct. 1851, 1858, 104 L.Ed.2d 377 (1989). The CEQ regulations provide that an agency may prepare an EA to determine whether an EIS is necessary. 40 C.F.R. § 1501.4, 1508.9(a) (1996). If the EA indicates that the proposed action will not significantly impact the environment, the agency may make a finding of no significant impact, or “FONSI.” Id. § 1501.4(e). Where a FONSI is made, the agency need not prepare a full EIS. Id. § 1501.4(e); see Park County Resource Council v. United States Dep’t of Agric., 817 F.2d 609, 621 (10th Cir. 1987), overruled in other respects by Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.1992) (en banc). When an EIS has been prepared for an action, the CEQ regulations encourage the agency to incorporate its conclusions into EAs prepared for all subsequent and smaller actions. 40 C.F.R. § 1502.20 (1996). However, the regulations require agencies formally to supplement the EIS through a Supplemental Environmental Impact Statement (SEIS) only when “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns,” id. § 1502.9(c)(l)(i), or when “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” Id. § 1502.9(c)(l)(ii). B. The National Forest Management Act The NFMA requires the United States Forest Service (the “Forest Service” or “USFS”) to develop Land and Resource Management Plans (“Forest Plans”) for the management of National Forests. 16 U.S.C. § 1604(a), (b) (1994). Forest Plans are required to “provide for multiple use and sustained yield of the products and services obtained [from national forests] ...,” and “determine forest management systems [and] harvesting levels” to be maintained on the relevant forest. Id. § 1604(e). Such plans must be revised at least every fifteen years, and must be prepared by an interdisciplinary team. Id. § 1604(f)(5), (f)(3). Additionally, the NFMA requires the Forest Service to limit the sale of timber from each national forest to “a quantity equal to or less than a quantity which can be removed from such forest annually in perpetuity on a sustained-yield basis.” Id. § 1611(a). This figure is known as the forest’s long-term sustained yield capacity (“LTSYC”). The Service is also required to set annual harvest levels, or “allowable sale quantities]” (“ASQs”) based on sustainable yield principles. Id. § 1604(e)(2). In any given year, the Service may exceed the annual ASQ for a particular forest, “so long as the average sale quantities of timber from such national forest over the decade covered by the plan do not exceed such quantity limitation.” Id. § 1611(a). The ASQ may be modified, but only through a revision of the forest plan, with full public participation. Id. § 1604(d). C. The Administrative Procedures Act The APA governs agency procedures in all administrative proceedings. Under the APA, agency functions are characterized as either “rulemakings” or “adjudications.” 5 U.S.C. § 551 (1994) (defining “adjudication” as the formulation of an “order,” and “order” as the “whole or part of a final disposition ... other than rule making but including licensing”). With regard to informal adjudications, i.e., those not conducted on the record after the opportunity for an agency hearing, “interested persons” are entitled to a “brief statement of the grounds for denial” when an agency denies “a written application, petition, or other request ... made in connection with any agency proceeding.” Id. § 555(e). Further, when an interested person makes a request for agency action, the person is entitled to have the agency conclude the matter presented to it “within a reasonable time.” Id. § 555(b). We have held that [t]he statement of grounds [under 5 U.S.C. § 555(e) ] must be sufficiently detailed that the reviewing tribunal can appraise the agency’s determination under the appropriate standards of review____ [T]he statement of grounds must be sufficiently detailed that we can determine whether the [agency] considered the relevant factors and that the choice it made based on those factors is a reasonable one. City of Gillette v. FERC, 737 F.2d 883, 886 (10th Cir.1984). When an interested person objects to agency action, the agency action is typically reviewed under an “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard. 5 U.S.C. § 706(2)(A) (1994). Although our “ultimate standard of review [under § 706] is a narrow one,” in determining whether the agency acted in an “arbitrary and capricious manner,” we must ensure that the agency “decision was based on a consideration of the relevant factors” and examine “whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Generally, an agency decision will be considered arbitrary and capricious if “the agency had relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). Factual Background The present dispute concerns the Forest Service’s approval of a single timber sale— the Banner sale — in the Medicine Bow National Forest, which is located in Wyoming. Medicine Bow is subject to a forest plan, which was promulgated by the Forest Service in 1985. Consistent with normal agency practice, the Service conducted a programmatic EIS to accompany the forest plan. See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1511-12 (9th Cir.1992) (discussing administrative practice of Forest Service). The forest plan set out broad management goals, guidelines, and standards for the forest. The plan also included a projected timber sale schedule for the years 1986 through 1995. That schedule specifically identified the Banner sale. Forest plans are implemented through individual projects proposed by the Forest Supervisor. See Idaho Conservation League, 956 F.2d at 1512. For each proposed project, the Service prepares an EA, in which the agency considers the environmental implications of each of a range of options for the particular site-specific project. If the EA does not raise significant environmental concerns unique to the site, the Service makes a FONSI and does not complete a full EIS. The EA for the Banner sale was released on March 19,1993. The EA, which was over 100 pages long, evaluated the environmental impacts of various proposed management actions in the Banner area. Specifically, the EA analyzed four alternatives: Alternative 1, under which no action would take place; Alternative 2, which consisted of a 30-unit timber sale, comprising 6.73 million board feet (mmbf), and certain restoration projects; Alternative 3, which consisted of a smaller timber sale, and the same restoration projects; and Alternative 4, which consisted of only the restoration projects. On April 25, 1993, the Forest Supervisor issued a decision notice and FONSI, in which he selected Alternative 2. The eleven page decision listed a number of reasons for choosing Alternative 2 over the other alternatives. One of these reasons was that Alternative 2 offered the highest benefiVcost ratio of the various alternatives. That reason was cited as a “key” reason, along with the explanations that Alternative 2 would enhance commercial timber supply and environmental stability, and was most consistent with the management objectives as outlined in the forest plan. Among the other reasons cited by the Forest Supervisor in selecting Alternative 2 were improved diversity of vegetation and aesthetics in the forest; a general reduction in negative visual effects caused by the contrast between older clear-cuts and the forest area that would be harvested in the Banner sale; enhanced timber supply and economic stability; and improved erosion and sedimentation conditions due to the elimination of approximately 20 miles of existing roads. After an alternative is selected, Forest Service personnel typically “cruise” a project site in preparation for offering the timber sale for bidding. During the “cruise,” the service identifies trees that may not be cut for various technical and environmental reasons, marks the boundaries of the sale, and identifies those trees that may not be cut. In cruising the Banner site prior to sale, the Service determined that Alternative 2 would yield 55% fewer trees for sale on 362 fewer acres than originally anticipated, for a sale offering of 3.1 mmbf. On May 17, 1994, the Forest Service sold the 509-acre Banner sale to intervenor Bighorn Lumber Company. On June 3, 1993, plaintiffs Leila Stanfield and Donald J. Duerr, on behalf of Friends, brought an administrative appeal challenging the Banner sale. The appeal alleged violations of NEPA, the APA and the NFMA. That appeal was rejected by Deputy Regional Forester Tom Thompson, and the Chief of the Forest Service denied discretionary review. Friends then filed suit in the United States District Court for the District of Colorado, claiming that Thompson’s response to the administrative appeal violated 5 U.S.C. § 555(e) (1994). The court ruled in Friends’ favor, and remanded the case to the agency to make a more detailed statement supporting its decision, concluding that no further action should take place concerning the Banner sale until such a statement was produced. On remand, Thompson responded to Friends’ appeal with a longer, more detailed statement explaining the basis for the agency’s decision. The Chief of the Service again denied discretionary review on March 25, 1995, and Friends again brought suit in the district court. On September 23, 1994, while the second administrative appeal of the Banner sale was pending, Friends sent a letter to the Forest Supervisor for Medicine Bow, in which Friends requested a supplemental EA or EIS for the Banner site based on alleged “changed circumstances” and “new information.” The Forest Service did not respond to this letter. However, the Service did prepare a 26-page Supplemental Information Report (SIR), in which it explained its conclusion that no supplemental EA was necessary. The SIR was issued on October 19, 1995, and was submitted to Friends in connection with this litigation. On April 25, 1995, Friends filed an amended complaint, which claimed that Thompson’s decision on remand was still inadequate under 5 U.S.C. § 555(e). Friends further alleged that the Forest Service’s failure to respond to the letter requesting a supplemental EA violated 5 U.S.C. § 555(b), because the Service had not responded within a “reasonable time.” The government filed a motion to require Friends to file a second amended complaint asserting all claims the group intended to assert against the Banner sale, including any challenges to the decision to choose Alternative 2. Friends consented to the motion, and filed a second amended complaint which contained additional claims alleging that the SIR was a supplemental EA which had not been filed in accordance with notice and comment requirements, and that the decision to implement Alternative 2 violated the NFMA because the service did not consider relevant sustained yield considerations. Upon cross-motions for summary judgment, the district court granted the government’s motion on all claims. Friends now appeals. DISCUSSION Standard of Review The district court’s decision to grant summary judgment is reviewed de novo. Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995). However, like the district court, we apply the deferential standards of 5 U.S.C. § 706 in determining whether the agency’s action was arbitrary and capricious. Mountain Side Mobile Estates Partnership v. Secretary of Pious, and Urban Dev., 56 F.3d 1243, 1250 (10th Cir. 1995). I. Was Approval of the Banner Sale “Arbitrary and Capricious” Friends claims that the Forest Service decision approving the Banner sale was arbitrary and capricious in two respects. First, Friends claims that one of the “key” reasons justifying the decision, ie., that Alternative 2 provided the highest benefit/cost ratio, was contrary to the evidence before the agency. Second, Friends claims that the Forest Service completely failed to consider sustainable yield principles, and thus did not “consider an important aspect of the problem.” State Farm, 463 U.S. at 43, 103 S.Ct. at 2866. A. The Evidence Before the Agency The decision to implement Alternative 2 was consistent with the evidence before the Forest Service at the time the decision was made. Friends’ claim is that the alleged higher benefit/cost ratio of Alternative 2 was one of the reasons that alternative was chosen by the Service, and that Alternative 2 did not in fact offer a higher benefit/cost ratio than Alternative 3, which provided for a smaller timber sale. To reach this conclusion, Friends relies on the SIR, which concluded that, after “cruising,” Alternative 2 was marginally less beneficial than the uncruised projected figure for Alternative 3. However, the SIR does not establish substantial changes in the proposed action relevant to environmental concerns, nor does it impugn the decision to select or implement Alternative 2. The SIR only concluded that the ratio for Alternative 2, after cruising, was marginally lower than the pre-cruising estimates for Alternative 3. However, the SIR explained that the Alternative 3 ratios would also likely decrease if cruising were to occur, as Alternative 3 also included a substantial timber sale. Id. Thus, as the district court concluded, Friends is offering figures that are really “apples and oranges.” Accordingly, we conclude Friends has offered no evidence that the decision to implement Alternative 2 was contrary to the evidence before the agency. B. Alleged Failure to Consider Sustained Yield Issues Friends also claims that the Service did not adequately consider sustainable yield principles in deciding to implement Alternative 2, in violation of the NEPA and the NFMA. Thus, Friends contends, the decision was arbitrary and capricious because the agency did not “consider an important aspect of the problem.” State Farm, 463 U.S. at 43, 103 S.Ct. at 2866. We disagree. Although the Service does not contend that either the EA or the implementing order discussed sustainable yield issues, the agency notes that under the NFMA, sustained yield issues are addressed in the forest plan. See 16 U.S.C. § 1604(e)(2), 1611 (1994) (requiring agency to address sustained yield issues in forest plan). As an initial matter, we reject the Service’s contention that plan-level concerns, such as sustainable yield, may not be considered at the time of an individual sale decision. In this case, Friends has alleged that the ASQ estimates contained in the plan may be high, and that the Service is currently in the process of revising the plan. However, Friends has not pointed to anything in the administrative record that indicates the 3.1 mmbf sale proposed here implicates sustainable yield concerns. Under the forest plan, the ASQ for Medicine Bow as a whole is 28.4 mmbf per year and the decadal LTSYC is 807.1 mmbf, or 80.7 mmbf on an annualized basis. In 1994, the year the Banner sale was made, the Service only sold 4.7 mmbf in the Forest. Further, a review of the volume of timber sold from the Medicine Bow National Forest between 1986 and 1995 shows that about 175 mmbf of timber was sold, a total significantly below the 284 mmbf ASQ for the decade. Indeed, even under the conservative sustainable yield figures cited by Friends, under which the forest can sustain only about 7 mmbf of harvesting annually, the Banner sale did not raise a sustainable yield issue. Accordingly, the agency did not act in an arbitrary and capricious manner in declining to call into question the forest plan guidelines by raising sustainable yield issues in the Banner sale process. II. Friends’ Request for a Supplemental EA Friends next argues that the Forest Service violated administrative law principles in refusing to prepare a supplemental EA for the Banner sale. Under the CEQ regulations, an agency must supplement an EIS if “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns,” or “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(i), (ii) (1996) Forest Service rules mandate that supplemental EAs may issue only after a notice and comment period. As the Supreme Court recognized in Marsh, “an agency need not supplement an EIS every time new information comes to light after the EIS is finalized. To require otherwise would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made.” 490 U.S. at 373, 109 S.Ct. at 1859. Thus, decisions not to supplement an EIS or EA will only be reversed if the agency decision is found to have been arbitrary and capricious. Id. at 376, 109 S.Ct. at 1860. Moreover, questions of whether there has been a substantial change in the action, or whether significant new information or circumstances have come to light, are “classic example[s] of ... factual dispute[s] the resolution of which implicates substantial agency expertise.” Id. at 376, 109 S.Ct. at 1860. The analysis of the relevant information “ ‘requires a high level of technical expertise;’ ” accordingly, “we must defer to ‘the informed discretion of the responsible federal agencies.’” Id. at 377, 109 S.Ct. at 1861 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976)). Friends claims that a supplemental EA was required because: (1) the reduction in timber sale volume at the Banner site revealed through the “cruise” was a substantial change in the action; and (2) significant new information has come to light regarding the timber supply in Medicine Bow. We disagree with both claims. First, the 55% reduction in sale volume did not constitute a substantial change in the action relevant to environmental concerns. We note that this change would result in a reduction in environmental impact rather than an increase in environmental impact. Although we are not prepared to say that a reduction in the environmental impact of an action can never trigger a requirement to prepare a supplemental EA, we believe that a reduction in environmental impact is less likely to be considered a substantial change relevant to environmental concerns than would be an increase in the environmental impact. Here, much of the reduction in timber sales volume was the result of implementing the kinds of environmental protections that would normally be expected before cutting begins, such as “cruising.” Further, the SIR supported the Forest Service’s conclusion that Alternative 2 was still the most attractive option even after cruising revealed the 55% decrease in available timber. Although Alternative 2’s benefit/cost ratio after cruising was marginally lower than that of the pre-cruise figures for Alternative 3, the Agency explained that the figures for Alternative 3 would likely be lower if cruising were to occur. This conclusion was informed by the agency’s substantial expertise in this area. Marsh, 490 U.S. at 376, 109 S.Ct. at 1860. Thus, we do not believe it was arbitrary and capricious for the agency to conclude that this was not a substantial change. Nor do we believe the agency was arbitrary and capricious in concluding Friends did not show “significant new circumstances or information” bearing on the environmental implications of the Banner sale. Friends points primarily to the Timber Demand and Supply Study (“TDSS”), an internal Forest Service document prepared by several Forest Service employees for the purpose of assessing timber conditions in Medicine Bow. The TDSS was never completed, and was never formally approved by the agency. Further, the TDSS was not new because it was abandoned by the Service on March 18, 1992, a full year before the EA was released and the Banner sale consummated. Moreover, the Service explained in detail in the SIR why the TDSS did not contain significant information that would warrant a supplemental EA. In declining to follow the conclusions reached in the TDSS, the Service noted that the study had substantial technical defects, including a failure to take into account the fact that, trees grow in assessing the amount of timber that would be available in the future, as well as the fact that the primary purpose of the document was to make a demand assessment rather than a field-based supply assessment. The TDSS is precisely the sort of document the Marsh Court concluded an agency may discount based on its substantial expertise and subsequent consideration of the relevant issues. Marsh, 490 U.S. at 381, 109 S.Ct. at 1863 (noting that SIR in that case had adequately addressed concerns raised by environmental group, and concluding that no supplemental EIS was required). Thus, it was not arbitrary and capricious for the agency to decline to supplement the EA based on the TDSS. III. Forest Service Response to Friends’ Administrative Appeal Friends also contends that, after the district court’s remand of the administrative appeal, Forester Thompson’s second response to the appeal again failed to respond to issues raised in the appeal, in violation of § 555(e) of the APA. As the district court noted in its remand of the initial appeal, our case law mandates that agency decisions be “sufficiently detailed that we can determine whether [the agency] considered the relevant factors and that the choice it made based on those factors was a reasonable one.” Gillette, 737 F.2d at 886. Specifically, Friends contends that Forester Thompson’s appeal decision of January 31, 1995:(1) did not explain why the agency did not follow the recommendations of certain Forest Service personnel; and (2) failed to explain conflicting statements regarding the visual effects of Alternative 2. The district court properly rejected this claim. As an initial matter, we agree with the Forest Service regarding the need to consider the administrative record as a whole in considering whether § 555(e) has been satisfied in the NEPA context. Agency decisions in the environmental context are made against a backdrop of extensive documentation due to the NEPA requirements. The government contends that no circuit court has ever remanded a decision to an agency based on § 555(e) in the NEPA context, and we have been unable to locate any such decisions either. In this context, we agree with the Forest Service that the “brief statement” required by § 555(e) cannot adequately assess the basis for an agency decision, and that such statements should be read in light of previous documents prepared to justify the particular decision at issue. Cf. Estate of L.D. French v. FERC, 603 F.2d 1158, 1162 (5th Cir.1979) (holding that a more “general” statement of basis for agency action is justified where court has before it a fully documented “record which formed the basis for the [agency’s] action”). In this case, the Forest Supervisor’s initial decision, as well as the EA itself, fully addressed the concerns raised by Friends. In any event, we do not believe Friends’ concerns are valid. Friends’ allegation that the Service ignored the opinions of several Forest Service personnel who opposed Alternative 2 does not really raise a distinct issue from that of why Alternative 2 was chosen over the other alternatives generally, an issue discussed in Thompson’s decision, and in the EA and FONSI. In explaining the reason for its choice of Alternative 2, the Service also provided Friends with an adequate explanation as to why it rejected the other alternatives. As to the visual impacts issue, Friends takes out of context one statement that applied to one portion of the Banner sale, and contrasts it with another statement that was applicable to the sale generally. We conclude that Friends has not shown that the Forest Service’s response to its appeal was deficient with respect to visual effects issues. Taken in context, Forester Thompson’s appeal decision of January 31, 1995 provides sufficient detail to satisfy the requirements of § 555(e). IY. Alleged Failure to Respond to Request for Supplemental EA Finally, Friends contends that the Forest Service violated the APA in failing to provide a prompt response to Friends’ September 23, 1994 letter requesting that the Service conduct a supplemental EA for the Banner sale. Friends claims the agency violated § 555(b) of the APA, which requires that the agency, “within a reasonable time ... proceed to conclude a matter presented to it.” The government maintains, and the district court agreed, that Friends’ letter is not the sort of matter to which § 555(b) applies. There is little case law on this issue. However, we believe there is a substantial argument that § 555(b) does apply to Friends’ letter, which is an explicit and eolorably valid request for the Service to take action arguably required of it by law to prepare a supplemental EA. First, by its terms, § 555(b) applies to all “matter[s]” presented to the agency. Contrary to the government’s position that the provision only applies to “proceedings” in which a person is compelled to appear, the section specifically speaks to “agency proceeding^]” in which a person is “entitled to appear,” as well as “agency funetion[s]” and “matter[s],” terms which would appear to encompass all forms of agency action. Second, while the government points out that “agency proceedings” only includes the rulemakings, adjudications, and licens-ings defined in § 551 of the APA, it fails to acknowledge that § 551 defines “adjudica tion” as “the formulation of an order,” and in turn defines “order” expansively to include the “whole or part of a final disposition ... other than rule making but including licensing.” That section further defines “agency action” broadly to include not only rule makings, licensings, and orders, but also the “failure to act.” Id. § 551(13); see also Catron County v. United States Fish & Wildlife Sen., 75 F.3d 1429, 1434 (10th Cir.1996) (holding that alleged failure to comply with NEPA in designating critical habitat was agency action); Forest Service Handbook § 18.1, 57 Fed.Reg. 43180, 43200 (1992). Thus, we assume, for the purposes of this opinion, that § 555(b) applies to the letter. Nonetheless, even assuming § 555(b) applies to Friends’ letter, the agency’s response to the letter substantially complied with the requirements of the section, as well as with the “brief statement” requirement of § 555(e). Friends does not dispute that the SIR is an adequate “brief statement” of the agency’s reasons for not conducting a supplemental EA. Thus, the only question is whether the SIR was issued within a “reasonable time” as is required by § 555(b).
6090302-27168	OPINION Wiles, Judge: This case was assigned to Special Trial Judge Lehman C. Aarons (pursuant to Rules 180, et seq., of the Tax Court Rules of Practice and Procedure) to conduct the trial thereof or otherwise proceed in accordance with said Rules. His report was filed on July 15,1977, and subsequently both parties filed exceptions to his report. The exceptions have been considered and are rejected. The Court agrees with and adopts the report set forth below. OPINION OF THE SPECIAL TRIAL JUDGE Aarons, Special Trial Judge: Respondent determined deficiencies in petitioner’s Federal income tax for the taxable years ended December 31,1959 and 1960, in the respective amounts of $441,081.10 and $446,206.34. The taxable period ended June 30, 1961, is also involved because of respondent’s adjustment of a net operating loss for that period which was carried back to 1959. Although respondent, in an amendment to his answer, claimed increased deficiencies such increases have been conceded by respondent. The issues remaining for decision are (1) whether the reserves for unpaid losses carried by petitioner at the end of 1959, 1960, and the period ending June 30, 1961 (which are included in the computation of “losses incurred” under section 832(b)(5)), were unreasonable in amount and were properly reduced by respondent, and (2) if (1) is answered in the affirmative, whether a comparable reduction must be made to the reserve for unpaid losses carried by petitioner at the end of 1958, and deducted (under sec. 832(b)(5)) in determining 1959 losses incurred. FINDINGS OF FACT Many of the facts have been stipulated and are found accordingly. The stipulation of facts and attached exhibits are incorporated by this reference. Only those facts necessary for an understanding of the opinion will be summarized below. Petitioner was a casualty insurance company having its principal office in Massachusetts. The returns for the years involved were filed with the District Director, Boston, Mass. Such returns were for the calendar years 1959 and 1960 and for the period ending June 30, 1961. Petitioner was merged into Hanover Insurance Co., and went out of existence as of June 30, 1961. Hanover Insurance Co., likewise has its principal office in Massachusetts. Petitioner, during the period here at issue, wrote 24 lines of casualty (non-life) insurance. Petitioner filed annual statements with the Insurance Department of the Commonwealth of Massachusetts on the form approved by the National Association (formerly National Convention) of Insurance Commissioners (NAIC). With relatively negligible exceptions (which are not here at issue), petitioner computed its taxable income for each period here involved on the basis of the net income shown at line 20 of the underwriting and investment exhibit of such annual statement. In arriving at its net income for annual statement purposes (and its gross profit for Federal income tax purposes), one of the principal deductions claimed by petitioner was “losses incurred.” “Losses incurred” as claimed by petitioner for the years 1959 and 1960, and the period ended June 30, 1961, were respectively $19,264,486, $21,067,480, and $8,925,671. Basically, those figures were determined by adding to “losses paid-current year” the amount of “unpaid losses outstanding — current year” and deducting therefrom the amount of “unpaid losses — prior year.” The disputed adjustments (which result in reduction of “losses incurred”) relate to the “unpaid losses” outstanding at the end of the periods here involved. The aggregate amounts of such unpaid losses (for all lines of insurance) claimed by petitioner and the aggregate adjustments asserted by respondent are: Respondent’s net Claimed reduction Dec. 31, 1959 .$30,390,690 $1,104,574 Dec. 31, 1960 . 29,965,729 690,548 June 30, 1961 .27,415,563 113,180 In determining the amounts of the foregoing net reductions, respondent gave credit for the prior reductions in conformity with the requirement of the Internal Revenue Code that, in determining losses incurred, unpaid losses at the end of the preceding year are to be deducted from the sum of losses paid during the taxable year and unpaid losses outstanding at the end of the taxable year. However respondent made no adjustment to the unpaid losses claimed by petitioner as of the end of 1958 in the aggregate amount of $31,257,371. The aggregate amount of unpaid losses claimed by petitioner at the end of 1953, according to its annual statement for that year, was $30,097,672. Petitioner used two basic methods to determine its reserves for unpaid losses. The so-called individual case method was used wherever possible; if not possible, a formula method was used. Under the case method, petitioner’s home office claims examiner after receiving a report from the field, would establish a dollar value on estimated liability with respect to each case. The claims examiner was supposed to take into account a myriad of factors such as the severity of the injury or occurrence; negligence and contributory negligence; age, health, personal and emotional factors; location of the occurrence and the effect of local law; identity of lawyers; and other imponderable factors. The volume of individual cases was heavy. The only claims examiner who testified at the trial, examined as many as 150 claims per day. Establishment of case reserves of $1,000 or more required approval of petitioner’s claims vice president. As further reports were received from the field the examiner would revise the case reserve upwards or downwards. The total amount of the case reserves was determinable at any time from the computer. No yearend adjustments were made to such reserves, nor (except as noted above) were changes in such reserves made by anyone at any time. It was contrary to petitioner’s policy to inform claims examiners of their past performance based on development figures of previous loss claims. Petitioner’s primary use of a formula method of reserving for unpaid losses (i.e., the second basic method used by petitioner to determine such reserves) was with respect to liability for occurrences which presumably had already taken place but which had not yet been reported to the claims department. IBNR (incurred but not reported) reserves were tentatively established by multiplying the premiums in force at the end of the accounting period by the ratio of the prior 2 years’ average IBNR losses as developed over a 21-month period, to the average premiums in force during the current period. This tentative figure was then revised to take into account variables such as inflation and changes in rates. IBNR reserves constituted approximately 18 percent of the total claimed unpaid losses for 1959, and approximately 28 percent for 1960 and for the period ended June 30,1961. In connection with its business done through “pools” (syndicates formed to spread risks among several companies), petitioner also used a formula reserve figure which was supplied to it by the pool. Pools were separately audited, and were likewise regulated by NAIC. Petitioner did not make any independent investigation of its pooled claims. Pooled unpaid loss reserves constituted approximately 9 percent of petitioner’s total claimed unpaid losses for 1959 and approximately 11 percent for 1960. A formula was also used by petitioner in miscellaneous other situations. For example, to avoid unnecessary and unproductive paperwork so-called “notice claims” (e.g., claims up to $500 for auto property damage) were reserved by petitioner’s statistical department on an actuarial basis. “Notice claims” constituted approximately 2 percent of petitioner’s total claimed unpaid losses. Respondent’s method of testing the reasonableness of petitioner’s unpaid loss reserves was based on the development (i.e., actual payments in subsequent years) of prior years’ claimed unpaid losses. If a comparison between the current year’s estimate and past years’ experience in the same line of insurance indicated a current year overstatement of more than 15 percent, respondent reduced the current year’s estimate to 115 percent of the average past years’ experience. In making such comparisons respondent applied a longer testing or development period for so-called Schedule P lines than for Schedule O lines of insurance in determining petitioner’s “experience rate.” Schedule P of the annual statement included auto liability, liability other than auto, and workmen’s compen sation. Schedule 0 covered most of the remaining lines of insurance. As to Schedule 0, respondent’s testing method applicable to the years before the Court is summarized as follows in Mim. R.A. No. 1366, issued by the Commissioner of Internal Revenue on July 1,1944: Information that will disclose the reasonableness of the unpaid loss liability as set up by the taxpayer may be secured from Schedule 0 of the Annual Statement. A comparison of the amounts paid in the first succeeding year plus the amount still estimated as unpaid at the end of such year, (developed losses) should be made with the previous year’s estimate of unpaid losses (estimated losses) to determine the ratio of “estimated losses” to one-year “developed losses.” Such comparison should be made separately for each year for the previous five years. If the average “estimated losses” of the previous five years is found to be not more than 115 percent of the five-year average of the one-year “developed losses,” the estimates made will be regarded as being reasonably correct, and no adjustment for the current year would ordinarily be required. In the event that the five-year average of “estimated losses” is in excess of 115 percent of the five-year average of the one-year “developed losses” then the unpaid loss liability of the company will be deemed to be excessive in the current year and an adjustment will ordinarily be required. * * * With respect to Schedule P, respondent applied a similar testing method, but because Schedule P lines represented personal injury type claims that require a longer development in order to ascertain actual loss, a 5-year average of five years’ development was used by respondent rather than a 5-year average of 1 year’s development as in the case of Schedule 0. For example, in adjusting the 1959 unpaid losses outstanding for workmen’s compensation, the claimed unpaid losses outstanding for each of the years 1950 through 1954 were compared to the development of those claimed unpaid losses outstanding as derived from the 1955 through 1959 annual statements. The unpaid losses outstanding claimed as of 1950 were developed to 1955, unpaid losses outstanding claimed as of 1951 were developed to 1956, and so forth. The average of these experience rates was used to adjust the 1959 claimed unpaid losses for workmen’s compensation. In each line of insurance, for each of the years involved, where the overstatement thus ascertained by comparison with prior experience exceeded the 15-percent tolerance, an adjustment was made by respondent down to the 15-percent tolerance point. Thus, if the applicable ratio of claimed unpaid losses to developed losses (the “experience rate”) was 123 percent (as in the case of workmen’s compensation), respondent adjusted the 1959 claimed unpaid losses to a figure representing 115 percent of the figure determined by respondent to be the proper figure based on petitioner’s experience rate. In the case of lines showing an experience rate of claimed unpaid losses to developed losses of less than 115 percent, no adjustment was made by respondent. There were no instances in which respondent determined an understatement of unpaid losses. However, there were only rare instances of lines of insurance where the “experience rate” of petitioner was under 100 percent, and there were no instances during the years before the Court, where the “experience rate” thus computed by respondent (i.e., the ratio of estimated unpaid losses to developed losses) was less than 85 percent. The NAIC made audits of petitioner’s annual reports every 3 years for the primary purpose of determining petitioner’s solvency and ability to pay its claims. (Such audits were actually made by the Division of Insurance of the Massachusetts Department of Banking and Insurance, and participating representatives of NAIC. They were commonly referred to as “convention examinations” and are referred to herein as NAIC examinations.) In its report of examination for 1956 and 1959, NAIC determined that petitioner’s unpaid losses outstanding should be decreased in the respective net amounts of $2,076,181.86 and $1,093,175. According to petitioner’s witnesses, petitioner regarded NAIC examinations “seriously.” However, petitioner never made adjustments to its books and accounts as a consequence of the adjustments made by NAIC auditors. There is no substantial correlation on a line by line basis between the NAIC adjustments and respondent’s adjustments. Respondent’s expert witness, David Skurnick, is a well-qualified actuary with much experience in the casualty insurance field. He applied a testing technique which differed from that applied by respondent in that the loss development of prior years was compared by Mr. Skurnick to a base consisting of premiums in force (or in automobile lines, earned premiums) rather than to the base of claimed unpaid losses (used by respondent), for the 5 year series of years prior to the year at issue. An average of the ratios of claimed unpaid losses to premiums in force (or earned) in each of the lines of insurance was then applied by Mr. Skurnick to the premiums in force (or earned) in the taxable year in order to determine the proper unpaid loss reserve for the taxable year. Mr. Skurnick’s method indicated aggregate overstatements as follows: 1959 I960 1961 Total overreserved lines .$3,974,279 $3,785,112 $2,729,093 Total underreserved lines . 261,360 0 170,841 Net overstatement .3,712,919 3,785,112 2,558,252 Respondent’s method of testing petitioner’s reserves for unpaid losses indicated aggregate overstatements, before allowing the 15-percent tolerance, as follows: 1959 .$4,463,344 1960 . 5,313,739 1961 . 5,130,229 Mr. Skurnick acknowledged that there are many methods of testing the reasonableness of reserves for unpaid losses and that no single method is “the correct method.” He viewed respondent’s method as being less accurate than his own method because respondent’s method would not give credit for any correction in a past reserve inaccuracy. However, in this case, he felt that because petitioner has been reserving “consistently,” this defect in method did not distort the results of respondent’s method. Mr. Skurnick also expressed the opinion that the 15-percent tolerance allowed by respondent “makes the IRS method conservative.” It was also his opinion that under his own method “The stability of the ratios of reserve runoff [development] to premiums indicates that a smaller tolerance would be satisfactory.” In his opinion a 5-percent tolerance is adequate under his method. As to the individual case method used by petitioner, Mr. Skurnick’s view was that “the case reserve will be fairly accurate as long as there is no bias in the individual reserves” but that the existence of bias is very common. Further, he pointed out that some other method must be applied to IBNR since the individual case method provides only for the reserve of known claims. The following schedule sets forth the subsequent development (to December 31, 1962) of petitioner’s total unpaid losses for all lines of insurance as claimed by petitioner for 1959 and 1960, in comparison with the amount of the reserve balance remaining after respondent’s adjustment: 1959 1960 Unpaid losses claimed (per annual statement) by petitioner . $30,390,690 $29,965,729 Subsequent development to 12/31/62 . 28,108,225 27,715,704 Unpaid losses as adjusted by respondent . .29,286,116 29,275,181 OPINION There are two issues to be decided by the Court: (1) The propriety of respondent’s adjustments to petitioner’s unpaid loss reserves as of December 31, 1959, December 31, 1960, and June 30,1961, and (2) if respondent is sustained as to (1), the propriety of respondent’s failure to make a corresponding adjustment to petitioner’s unpaid loss reserve as of December 31,1958. Issue I. "Unpaid Loss” Deductions for Taxable Years and Taxable Period at Issue During the years and period here at issue, petitioner was a casualty insurance company taxable under section 831 of the Code. Section 832(b)(1)(A) defines “gross income” of companies subject to tax under section 831 as including (1) Gross Income. — The term “gross income” means the sum of— (A) the combined gross amount earned during the taxable year, from investment income and from underwriting income as provided in this subsection, computed on the basis of the underwriting and investment exhibit of the annual statement approved by the National Association of Insurance Commissioners * * * The term “underwriting income” is defined in section 832(b)(3) as meaning premiums earned less “losses incurred and expenses incurred.” Section 832(b)(5) defines “losses incurred,” as follows: (5) Losses incurred. — The term “losses incurred” means losses incurred during the taxable year on insurance contracts, computed as follows: (A) To losses paid during the taxable year, add salvage and reinsurance recoverable outstanding at the end of the preceding taxable year and deduct salvage and reinsurance recoverable outstanding at the end of the taxable year. (B) To the result so obtained, add all unpaid losses outstanding at the end of the taxable year and deduct unpaid losses outstanding at the end of the preceding taxable year. Since 1941, the regulations (as now embodied in sec. 1.832-4(a)(5) and 4(b), Income Tax Regs.) have addressed themselves to the subject of “unpaid losses” in the following terms: 4(a) * * * (5) In computing “losses incurred” the determination of unpaid losses at the close of each year must represent actual unpaid losses as nearly as it is possible to ascertain them. (b) Every insurance company to which this section applies must be prepared to establish to the satisfaction of the district director that the part of the deduction for “losses incurred” which represents unpaid losses at the close of the taxable year comprises only actual unpaid losses stated in amounts which, based upon the facts in each case and the company’s experience with similar cases, can be said to represent a fair and reasonable estimate of the amount the company will be required to pay. Amounts included in, or added to, the estimates of such losses which, in the opinion of the district director are in excess of the actual liability determined as provided in the preceding sentence will be disallowed as a deduction. The district director may require any such insurance company to submit such detailed information with respect to its actual experience as is deemed necessary to establish the reasonableness of the deduction for “losses incurred.” The Court sustained the validity of this regulation in Hanover Insurance Co. v. Commissioner, 65 T.C. 715 (1976). All that remains here to be decided (under Issue I.) is whether respondent’s adjustments to petitioner’s yearend estimates of unpaid losses were justified under the “fair and reasonable” test imposed by the regulation. Petitioner, wherever possible, used the individual case method of estimating unpaid losses. These estimates were revised from time to time on the basis of developments in the particular case, but the total reserves were not tested by petitioner on the basis of prior experience. Respondent tested the reasonableness of petitioner’s unpaid loss reserve for each year and the taxable period at issue, by an “experience rate” testing technique which had been in use since 1944, as follows: for each of the separate lines of insurance coverage, respondent compared' the unpaid loss reserves established in years prior to the year under examination with the loss actually paid with respect to such years. For each line of coverage where this comparison showed that a reserve in prior years had been overstated by an average of more than 15 percent, the reserve in that line for the year under examination was reduced to the 15 percent “tolerance” figure. The issue before the Court is essentially a valuation issue, i.e., the assignment of a fair and reasonable value to “unpaid losses,” and the petitioner has the burden of proving the respondent’s determination to be wrong. Welch v. Helvering, 290 U.S. 111 (1933); Rule 142(a), Tax Court Rules of Practice and Procedure. Section 1.832-4(b), Income Tax Regs., specifically places the burden upon the petitioner to establish “to the satisfaction of the district director” that the “unpaid losses” component of “losses incurred” comprises “actual unpaid losses.” Having sustained the validity of this regulation in Hanover Insurance Co. v. Commissioner, supra, it clearly follows that the burden of proving error in respondent’s determination rests upon the petitioner. Petitioner has not succeeded in carrying that burden. Petitioner’s direct proof consisted primarily of a description of the methods it used in placing a dollar figure on its estimated liability on each case reported to it. The greater part of its loss reserves was the aggregate amount of such individual case reserves. Theoretically and ideally, the aggregate of the individual case reserves should equal a fair and reasonable total reserve. But the only individual claims examiner who testified for petitioner stated that she set up reserves on as many as 150 cases per day. If she had worked an 8-hour day without interruption, that would indicate an average of approximately 3 minutes per claim. While it is true that this witness did not handle the “heavy” personal injury cases, the Court is left to surmise how such examiners were able to apply in practice the myriad of factors to which petitioner’s officers attached importance in the evaluation of claims. It appears to be true, as respondent’s expert witness conceded, that there are many methods for testing the reasonableness of unpaid loss reserves. But the evidence in this case does not establish that with respect to the bulk of its reserve, i.e., the aggregate of its individual case reserves, the petitioner employed any method of doublechecking or testing the aggregate amounts set aside. Petitioner argues that if it had actually set aside the amounts of unpaid loss reserves deemed proper by respondent, the subsequent development of such losses would have created a deficit, and the reserves would have been insufficient to meet loss claims. But the figures used by petitioner to illustrate this point do not take into account the 15-percent tolerance allowed by respondent. This tolerance figure was an integral factor in respondent’s testing technique for the taxable periods here at issue. After taking the tolerance factor into account, the 1959 and 1960 reserves allowed by respondent exceeded the unpaid losses for those years (as developed to December 31, 1962) by $1,177,891 and $1,559,477, respectively. As recently stated by this Court in Western Casualty & Surety Co. v. Commissioner, 65 T.C. 897, 919 (1976), on appeal (10th Cir., June 17, 1976), respondent’s test of reasonableness should be directed at the total unpaid loss reserve. In the light of the respondent’s tolerance factor, petitioner has not demonstrated error in respondent’s method. In so holding, there is no implication that petitioner acted otherwise than in good faith, that it deliberately undertook to overstate its reserves for unpaid losses, or that petitioner was in any way “mismanaged” (as asserted by respondent). It is held simply that petitioner failed to persuade the Court that respondent’s method of testing the reasonableness of such reserves was itself an unreasonable testing method. A final comment seems to be appropriate as to the basic legal issue in this case. As indicated at the outset, petitioner’s primary contention in its opening brief was the reiteration of the argument made in Hanover Insurance Co. v. Commissioner, supra, that the figures shown on the NAIC form of the Annual Statement are legally binding and conclusive on respondent and that section 1.832-4(b), Income Tax Regs., is invalid. It is worthy of note that two of the findings proposed in petitioner’s opening brief are: 3.68 Mass. Bonding [petitioner] regarded the N.A.I.C. examination seriously and not as perfunctory or merely routine. 3.69 Althought the N.A.I.C. examiners did make adjustments to Mass. Bonding’s reserves for Unpaid Losses Outstanding, Mass. Bonding never made adjustments to its books and accounts as a consequence of those adjustments. In successive breaths, the petitioner (1) insists on the sanctity of the Annual Statement, (2) states that the examinations by the regulatory authorities are taken seriously, and (3) that no adjustments were made by petitioner despite the examiners’ findings of very substantial overstatements of reserves for unpaid losses (albeit, mostly in lines of coverage different from those adjusted herein by respondent). This sequence of nonsequi-turs serves to reaffirm the correctness of the Court’s 1976 opinion in this case. Issue II. "Unpaid Loss” Adjustment as of December 31, 1958 During the trial of this case, the Court requested counsel, in their briefs, to comment upon the question whether respondent’s adjustments of petitioner’s reserves for unpaid losses effectuate a change in method of accounting, and whether section 481 of the Code is applicable. Petitioner’s opening brief appears to argue against the applicability of section 481 although its reply brief asserts that respondent’s adjustments constituted a change in method of computing unpaid loss reserves. Respondent’s opening brief does not cite section 481, but in his reply brief respondent argues that the adjustments were not tantamount to a change in method, and that section 481 does not apply. Section 481 prescribes the rules for computation of taxable income under a “method of accounting” different from the method employed by the taxpayer. Its purpose is to prevent any income from escaping tax or being doubly taxed solely because of such change in method. If the change in method was initiated by the Internal Revenue Service, amounts applicable to pre-1954 years should not be taken into account. Section 481 does not define “change in method of accounting.” But section 1.446-l(e)(2)(ii)(a), Income Tax Regs., states that a “change in method of accounting” includes “a change in the treatment of any material item.” Under those regulations: “A material item is any item which involves the proper time for the inclusion of the item in income or the taking of a deduction.” Sec. 1.446-l(e)(2)(ii)(a), Income Tax Regs.; Schuster’s Express, Inc. v. Commissioner, 66 T.C. 588, 594-595 (1976), affd. per curiam F.2d (2d Cir. 1977, 40 AFTR 2d 77-5293, 77-2 USTC par. 9495); Western Casualty & Surety Co. v Commissioner, supra at 912 et seq.
10589933-17777	VAN GRAAFEILAND, Circuit Judge: In June 1970, Orvis Brothers, a Wall Street brokerage firm, closed its doors, leaving debts in excess of four million dollars. On September 10, 1974, appellants, officers of that company, were indicted in the Southern District of New York, charged in nine counts with conspiracy and substantive violations of the federal securities law. Only Anderson went to trial, and he was convicted on the conspiracy count alone. Seven counts were dismissed by the trial judge, and the jury acquitted Anderson on the eighth. Sloan pleaded guilty to the conspiracy count, and Eucker pleaded guilty to a substantive count charging illegal hy-pothecation of customers’ securities, reserving his right to appeal from the District Court’s refusal to dismiss this count for failure to allege a crime. Anderson appeals his conviction, asserting a number of substantive and procedural errors. Sloan appeals from District Judge Knapp’s denial of his motion to withdraw his guilty plea, which motion was predicated upon the prosecutor’s alleged failure to “go to bat” for Sloan with the sentencing judge as had been promised. Eucker appeals from the judgment based on his plea of guilty, in accordance with his reservation of the right to do so. The Background for the Charges Appellants were partners in Orvis Brothers, which had been in the securities business for many years. Sloan was the managing partner; Anderson was chairman of the Executive Committee, and Eucker, a member of the Executive Committee, was in charge of operations. In early 1969, Or-vis was experiencing difficulty in maintaining the 20:1 capital ratio required by the rules of the New York Stock Exchange, and its Executive Committee cast about for means of increasing its apparent capital. According to the Government’s proof, some members cast too widely. The Orvis account most susceptible to manipulation was that of the Clinton Oil Company of Wichita, Kansas, whose president, Realto Clinton, was a close friend of appellant Sloan. Orvis was a broker for the Clinton Company in the sale of oil and gas exploration investment units, for which it received a six percent commission payable at the time the fourth and final installment of the purchase price of each unit was paid. Early in 1969, Orvis, at the suggestion of Sloan and with the knowledge of Anderson, began treating projected commissions as current capital. A fictitious customer account was created and $797,100 in projected but unearned commissions was entered in this account. To balance this unsecured debit, some stock of Realto Clinton in the possession of Orvis was wrongfully credited to the same account. Anderson learned of this transfer in September 1969. A second fictitious addition to capital was created out of the sale of Clinton units by failing to record the forty percent sales commission payable to Orvis’ employees. The decision not to deduct these commissions was known to Anderson and the other members of the Executive Committee. In 1969, Clinton Oil Company sent Sloan 4,344 shares of Clinton stock with directions that it be sold to partners of Orvis, and Realto Clinton sent 5,000 shares for sale to a third party. These shares were posted in the Orvis’ books as if they were a gift rather than a consignment, and Anderson learned of this posting in August 1969. In the same month, it was discovered that the firm’s own trading account had sustained an unexpected loss of $500,000, and Sloan called his friend Clinton to seek additional capital. Clinton agreed to, and did, forward $500,000. However, this was in payment of commissions for sale of Clinton oil and gas units and not as a loan to Sloan. Despite this fact, the money was placed in the firm’s trading account, and no part of it was used to offset the $797,100 carried on the books as earned commissions. Although Anderson played no part in this transaction, he was aware of it. In 1969, Orvis owned eighty thousand shares of Clinton Oil Company stock which could be evaluated at only seventy percent of market value for capital ratio purposes under the rules of the New York Stock Exchange. . In August, Sloan told his partners that this stock had been sold to the Clinton Oil Pension Fund and recorded the sale in the partnership books at one hundred percent of value. Although Clinton’s general counsel informed Orvis by telegram that this “sale” had not occurred, and no payment was ever made, it remained on the books of Orvis as an obstensibly valid transaction. At the time that this purported sale was taking place, general counsel for Clinton was in New York, attempting to ascertain the financial, situation at Orvis. Anderson advised him that “there is no problem with the company” and that the capital ratio was “between 12 and 15 at that time, that the auditing firm was there at the moment and everything was all right.” Clinton’s counsel was not informed of the “sale” of Clinton stock and did not learn about it until his return to Kansas, at which time he promptly disaffirmed it. On a second visit made in December 1969, Clinton’s counsel was again assured by Anderson and Sloan that there was no cause for concern over the financial condition of Orvis. Machinations at Orvis were not confined to the Clinton account. In the fall of 1968, Anderson attempted to negotiate the sale of nineteen thousand shares of unregistered International Controls Company stock from customers of Orvis to a mutual fund called the Fund of Letters. After Orvis had purchased the stock from its customers for almost $500,000, the Fund of Letters refused to accept it because International Controls Company would not register the stock. Despite this refusal, the cost of the stock was not charged against capital but was carried for fourteen months on the books of Orvis as a customer cash account with a settlement date of five business days. Also, during 1968 and 1969, Orvis began to use fully paid for customers’ securities as collateral for partnership bank loans. When Haskins & Sells, the company auditor, was securing information required for Orvis’ October 1969 Form X-17A-5 report of financial condition to the New York Stock Exchange and the Securities and Exchange Commission (SEC), approximately six million dollars in customers’ securities were so hypothecated. Haskins & Sells was advised, however, that this was being corrected, and so stated in its report. The advice and the report were both erroneous. By May 1970, the hypothecation of fully paid for customers’ securities exceeded six and one-half million dollars. The Government introduced evidence that Anderson, by that time, was fully aware of what was being done but urged that this knowledge be kept from the other members of the Executive Committee. Information concerning all of the manipulations outlined herein was kept from Has-kins & Sells, although the X-17A-5 report was reviewed in detail at a meeting with representatives of the auditor which was attended by appellants. As a result, the report which was filed indicated that Orvis was not in any financial difficulty, and its capital ratio was satisfactory. The Statutes Involved 15 U.S.C. § 78q(a) provides in part that every registered broker shall keep “such accounts, correspondence, memoranda, papers, books, and other records, and make such reports, as the [Securities and Exchange] Commission by its rules and regulations may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U.S.C. § 78ff(a) provides in substance that anyone “who willfully violates [§ 78q(a)] or any rule or regulation thereunder the violation of which is made unlawful or the observance of which is required,” or “who willfully and knowingly makes, or causes to be made, any statement in any application, report, or document required to be filed under this chapter or any rule or regulation thereunder . . . which statement was false or misleading with respect to any material fact, shall upon conviction be fined . . ., or imprisoned . or both.” This section further provides, however, that no person shall be subject to imprisonment thereunder “for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation.” 15 U.S.C. § 78h(c) makes it unlawful for a broker, in contravention of the rules and regulations of the SEC, to hypothecate any customer’s securities “under circumstances (1) that will permit the commingling of his securities without his written consent with the securities of any other customer, (2) that will permit such securities to be commingled with the securities of any person other than a bona fide customer, or (3) that will permit such securities to be hypothecat-ed, or subjected to any lien or claim of the pledgee, for a sum in excess of the aggregate indebtedness of such customers in respect of such securities.” 18 U.S.C. § 371 prohibits conspiracies to commit any offense against the United States. It provides for a fine, imprisonment or both, except where the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, in which event the punishment for the conspiracy cannot exceed the maximum punishment provided for such misdemeanor. The SEC has elaborated on the provisions of the Securities Exchange Act with its own rules and regulations. Rules 17a-3 and 4, 17 C.F.R. §§ 240.17a-3, 4, detail the business records required to be kept and preserved by securities dealers. Rule 17a-5, 17 C.F.R. § 240.17a-5, requires that brokers file Form X-17A-5 financial reports and specifies the contents of these reports. Rule 8c-l, 17 C.F.R. § 240.8c-l, prohibits the hypothecation of securities, in language similar to that of 15 U.S.C. § 78h(c). Anderson's Appeal Anderson was convicted of conspiracy to violate §§ 78ff(a) and 78q(a) and Rules 17-a-3, 4 and 5. As reduced by the trial judge, the charge of wrongdoing submitted to the jury was that Anderson conspired to file an X-17A-5 report with the SEC which was false, in that statements of the accounts of Orvis and its customers were inflated and the improper hypothecation of customers’ securities was wrongfully stated to have been corrected. Although appellant argues that he was not a member of any conspiracy, but at most a silent onlooker, this argument is not persuasive. Where the goal of a conspiracy can be reached only through deception and concealment, silence which is designed to conceal may indicate an intention to conspire. United States v. Colasurdo, 453 F.2d 585, 592-93 (2d Cir. 1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972). The trial court instructed the jury that to be an act in furtherance of a conspiracy, “silence must be a planned act” and that if intended to facilitate the conspiracy, it can be an overt act in pursuance thereof. This was a correct statement of the law. United States v. Freeman, 498 F.2d 569, 575 n. 10 (2d Cir. 1974); Forman v. United States, 259 F.2d 128 (9th Cir. 1958), modified, 261 F.2d 181 (1959) (per curiam), aff’d 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960). While the concealment which occurred in this case may have been intended in part to deceive potential sources of capital, it was also clearly designed to delude the New York Stock Exchange and the SEC. Unless Orvis could maintain its capital ratio at 20:1 or better, it was not going to continue long in operation. The sine qua non of the fraud on these agencies was the filing of the false Form X-17A-5, and the jury could well find that the concealment of the true facts required for this report was as much a part of its preparation as the writing on the document. It could also decide that Anderson, who stood silently by as the false contents of the X-17A-5 report* were reviewed with the company auditor in preparation for filing, was not an innocent bystander. Moreover, the Government established that Anderson did more than simply remain silent. At a meeting of the Executive Committee in April 1969, after he was told of some of the improper bookkeeping practices, Anderson instructed the partner in charge of financial operations, to make sure the firm stayed in business. Anderson also deliberately misled Clinton Oil Company’s general counsel concerning the financial position of Orvis. These, the jury could find, were acts of a vocally active participant in the alleged conspiracy. In short we find that there was substantial evidence in support of the jury’s verdict. We find no error in the District Court’s evidentiary rulings. Although the Government did not contend that Anderson was aware of the allegedly improper hy-pothecation of customers’ securities at any time before the X-17A-5 report was filed, proof of such hypothecation was, nonetheless, properly admitted. If the filing of false information concerning hypothecation was within the scope of the conspiracy, Anderson, as one of the conspirators, cannot avoid the consequences by claiming lack of knowledge. United States v. Manton, 107 F.2d 834, 848 (2d Cir. 1939), cert. denied, 309 U.S. 664, 60 S.Ct. 590, 84 L.Ed. 1012 (1940). The Government contended that the conspirators misrepresented to the SEC that the situation involving hypothecation had been corrected, and it was necessary for the Government to establish that the correction had, indeed, not taken place. Whether, as appellant now asserts, the Government failed to prove that the hypothecation was unlawful is beside the point; the SEC was entitled to truthful information. The wrongful act charged was the filing of the false report, not the hypothecation. Similar reasoning supports the admissibility of evidence concerning the Fund of Letters transaction. The alleged conspiratorial act submitted to the jury was the false handling of the Fund of Letters account as a secured cash account in the X-17A-5 report, and proof of the underlying facts was necessary to establish the falsity. Anderson’s asserted lack of knowledge concerning bookkeeping details did not require exclusion of this evidence. Anderson contends that he was denied his Fifth Amendment right to due process because he was not indicted until just prior to the running of the five year statute of limitations. Appellant did not raise this issue until after his conviction and waived his right to do so. United States v. Beigel, 370 F.2d 751, 757 (2d Cir.), cert. denied, 387 U.S. 930, 87 S.Ct. 2049, 18 L.Ed.2d 989 (1967). A defendant cannot wait to see whether the verdict is to his liking before arguing that he was prejudiced by delay. In any event, we would be disinclined to reduce the period of limitations prescribed by Congress in the absence of some proof that the Government utilized the delay as “an intentional device to gain tactical advantage over the accused” and that defendant was prejudiced thereby. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 481 (1971). Appellant failed to show any contrived procrastination by the Government and could point to no prejudice established beyond mere conjecture. We see no error here. There is likewise no merit to Anderson’s contention that he was further deprived of his Fifth Amendment rights by the Government’s failure to call before the grand jury a witness whose testimony would have tended to weaken the Govern ment’s case. In advancing this argument, appellant pays little heed to the fact that the testimony of the witness, who was the attorney for another defendant, would have been, to a large extent, privileged. Moreover, he ignores the well established rule that the Government need not call all available witnesses before the grand jury. United States v. Koska, 443 F.2d 1167, 1169 (2d Cir.) (per curiam), cert. denied, 404 U.S. 852, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971). Anderson’s final claim of error relates to his sentence of imprisonment. As pointed out above, 18 U.S.C. § 371, the conspiracy statute, provides that where the object of a conspiracy is a misdemeanor, the punishment for the conspiracy cannot exceed the maximum punishment for the misdemeanor. 15 U.S.C. § 78ff(a) provides that no person shall be subject to imprisonment thereunder for the violation of any rule or regulation of which he had no knowledge. This means that under 18 U.S.C. § 1 the violation of an unknown rule or regulation of the SEC can be no more than a misdemeanor, and the violator can receive no more than a fine. Anderson contends that he was convicted under § 78ff(a) of a violation of Rules 17a-3, 4 and 5. The Government, on the other hand, argues that he was convicted for a violation of the statute itself. The Government is correct. The charge of wrongdoing submitted to the jury was not the failure to keep and preserve records and file reports as required by the rules; it was the making of false and misleading statements in a report, which conduct was specifically proscribed. by § 78ff(a). Anderson is therefore not entitled to rely on the “no knowledge” portion of that statute. United States v. Colasurdo, supra, 453 F.2d at 594. Sloan’s Appeal The Assistant United States Attorney who represented the Government on the trial promised Sloan that if he pleaded guilty and cooperated in the preparation and presentation of the case against Anderson, the Government would “go to bat” for him. Thereafter, Sloan pleaded guilty. However, his cooperation consisted of presenting the prosecution with a version of the facts in which he attempted to completely exculpate himself from any wrongdoing. Under these circumstances the Government was unwilling to vouch for his credibility and did not call him as a witness. The prosecutor also did not “go to bat” for him, because he did not consider Sloan’s willingness to testify falsely to be cooperation.
5695836-9711	MEMORANDUM OPINION GLEN M. WILLIAMS, District Judge. This case is presently before the court on plaintiff’s and defendants’ cross motions for summary judgment. The subject of this action concerns an alleged violation of a contract between an employer and a labor organization representing employees in an industry affecting commerce. Therefore, this court has jurisdiction pursuant to 29 U.S.C. § 185(a). I. The plaintiff, Westmoreland Coal Company, a Delaware corporation licensed to do business in Virginia, is engaged in the production, preparation, and shipment of coal and has its principal place of business in Wise County, Virginia. The defendant, United Mine Workers of America, International Union, an unincorporated association and labor organization, having its principal office in Washington, D.C., is engaged in ■ representing employees of the plaintiff. The defendants, District 28, United Mine Workers of America and Local Union 8181, United Mine Workers of America, unincorporated associations and labor organizations, are administrative divisions and agencies of the defendant United Mine Workers of America, and have their principal offices in the Western District of Virginia. The parties are signatories to the National Bituminous Coal Agreement of 1981 (hereafter “the Agreement”). For the purposes of this dispute, the parties are bound by the Agreement. The defendants filed a written grievance with the plaintiff contending that the plaintiff had violated the Agreement by recalling an employee with less seniority before recalling Kenneth Cheek. Unable to resolve the grievance through conciliation procedures, contained in Article XXIII of the Agreement, the dispute was submitted for an arbitration hearing on April 15,1982. The arbitrator found the following facts. On July 31, 1979, Kenneth Cheek (hereinafter the grievant), an employee of the plaintiff, stopped working due to health reasons. On August 31, 1979, the grievant was officially laid-off. It is unclear from the record whether this lay-off was due to the grievant’s health problems. On August 31, 1979, the grievant submitted a panel form to be recalled should there be an opening for General Inside Labor or various other jobs. It is the plaintiff’s company policy that an employee laid-off due to an injury or illness must present proper medical evidence of fitness for work in order to be recalled. The arbitrator specifically found that the grievant was aware of this policy. The grievant’s physician notified the plaintiff by letter that the grievant should be able to return to work on September 4,1979; however, this letter was not an official work release. The grievant attended college full time from September 1979 through June 10,1980 and received Veterans’ benefits during this time. On June 11, 1980, the grievant filed an unemployment claim for which the grievant supplied medical evidence of his ability to return to work. The plaintiff learned of the grievant’s unemployment claim and, therefore, knew of his availability for work as of June 11, 1980. The arbitrator found that the grievant was officially available for work and that grievant should have been on the job panel as of that date. The plaintiff did not place the grievant on the job panel until September 16, 1981. In January 1982, the grievant alleges that he discovered that an employee more junior than he had been called back to General Inside Labor on February 6, 1980; hence, the basis of his grievance. The arbitrator noted that “I have no way of knowing whether the junior recalled employee did, in fact, provide the basis for this grievance because his panel form was not submitted on time.” In his May 7, 1982 award, the arbitrator held: The Company and International Union Representatives are directed to review and, if possible, agree on the list of jobs for which the grievant was eligible for recall pursuant to his ability and his Panel form. The Company should then review its recall records to determine if any employee junior to the grievant was recalled to one of those agreed to jobs after June 10, 1980. The contract does not give the grievant bumping rights on those junior employees recalled prior to his availability. If so, the grievant is entitled to be reimbursed for the time he would have worked and all other monies he would have received for that job between the date of that recall and September 16, 1981, but with the amount[s] of money he received from Workmen’s Compensation, or Unemployment Compensation, or from employment for wages received during this period deducted therefrom. If the Parties cannot agree upon the job to which the grievant may have been recalled after June 10, 1980 through December 31, 1980, or if there was no such job nor any such recall, this case shall be returned to the arbitrator for the setting of a date because of the Company’s negligence in administering Article XVII of the Wage Agreement. On May 7, 1982, the arbitrator entered the following Supplemental Award: After the Company and the Union reviewed the records, there were no employees younger than the grievant who were recalled after June 10,1980 through December 31, 1980. This is due to the fact other mines paneled to this complex and all those paneling were senior to the grievant. The grievant was not responsible for the loss of opportunity due to paneling of the employees from other mines. It was found this Company was remiss in not calling the grievant originally (February 6, 1980) and the arbitrator has stated he will set the penalty. Accordingly, the grievant shall be paid 1,730 hours of straight time pay at his rate of pay as a final resolution of this case. II. The issue currently in dispute is whether the arbitrator exceeded his statutory and contractual authority in awarding the grievant punitive damages. The plaintiff, noting that the arbitrator characterizes the award as a penalty, argues that the award is punitive in nature and that the purpose of the award is to reprimand the plaintiff for being remiss in its recall procedures. The defendants argue that the award is not a penalty, but rather is intended to compensate the grievant for the plaintiff’s failure to recall him on February 6, 1980. Central to this case is the scope of judicial review over an arbitrator’s award which is considered “final” by the underlying collective bargaining agreement. In the Steelworkers’ Trilogy, a set of three decisions rendered by the United States Supreme Court on the same day, the Court considered the parameters of an arbitrator’s authority to render such awards and the proper role of the federal courts in reviewing such awards. See United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403. The interpretation of the Agreement is within the province of the arbitrator and the court is not to tamper with the award unless the arbitrator has exceeded the jurisdiction granted him in the Agreement. After all, “[i]t is the arbitrator’s construction which was bargained for; ... the courts have no business overruling him because their interpretation is different from his.” Enterprise Wheel, 363 U.S. at 593, 80 S.Ct. at 1362. See also Crigger v. Allied Chemical Corporation, 500 F.2d 1218, 1219 (4th Cir.1974); Keen Mountain Construction Co., Inc. v. Chambers, 481 F.Supp. 532, 536 (W.D.Va.1979). An arbitrator may not, however, exceed the power granted to him by the Agreement. This jurisdictional limitation reflects the basic principle of arbitration that an arbitrator “does not sit to dispense his own brand of industrial justice” and “his award is legitimate only so long as it draws its essence from the collective bargaining agreement.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). Several tests have been developed to construe the “essence” standard, but only two tests are applicable to the case at bar. Those tests are best stated as “(1) an award cannot be contrary to the express language of the Agreement; and, (2) an award will not be enforced if there is no rational way the arbitrator’s interpretation can be construed from the Agreement.” Keen Mountain, 481 F.Supp. at 537. See also Local Union 1470, Etc. v. Clinchfield Coal Co., 483 F.Supp. 1302, 1305 (W.D.Va.1980). If an arbitrator exceeds his jurisdiction in making an award, the court is empowered to vacate such award pursuant to 9 U.S.C. § 10(d). In the present case, the arbitrator awarded the grievant 1,730 hours of back pay as a “penalty.” In Norfolk & Western Railway Co. v. Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, 657 F.2d 596 (1981), the Fourth Circuit recently held that absent a contrary provision in the Agreement, an arbitrator could not make an award of purely punitive damages to remedy a violation of a collective bargaining agreement. “[U]pon the finding of a violation, an arbitrator should be given virtually unlimited latitude in fashioning a remedy ... however, nothing said in Enterprise Wheel negates the requirement that compensatory damages be based upon cognizable loss causally traceable to breach.” 657 F.2d at 602, quoting Baltimore Regional Joint Board v. Webster Clothes, Inc., 596 F.2d 95 (4th Cir.1979). See also Westinghouse Electric Corp., Aerospace Division v. International Brotherhood of Electric Workers, AFL-CIO, 561 F.2d 521 (4th Cir. 1977).
3369645-11571	OPINION AND ORDER SNYDER, District Judge. Before the Court for determination is a Motion for Summary Judgment under Federal Rule of Civil Procedure No. 56 filed by the Defendants, Rockwell International, Inc. (Rockwell) and Aero Com mander, Inc. (Aero). After oral argument, briefs and a review of the applicable law, it is concluded that the Motion must be granted. DEFENDANT ROCKWELL This diversity action for wrongful death arises from the crash of an Aero Commander 690 during a training flight in the vicinity of Wellsburg, West Virginia on August 14, 1972. Plaintiff’s Decedent was the co-pilot of the aircraft. The Plaintiff, Mary L. Kinchloe, the surviving spouse of the Decedent, Robert C. Kinchloe, is a resident of Allegheny County, Pennsylvania. The action was brought by the surviving spouse for herself and for her minor child, Robert J. Kinchloe, who is also a resident of Allegheny County, Pennsylvania. The Decedent was also a Pennsylvania resident. Rockwell is a Delaware corporation and hired Robert C. Kinchloe at its business headquarters in Pittsburgh, Pennsylvania. The employee was acting within his scope of employment on this training flight which originated and was to terminate at the Greater Pittsburgh Airport. Rockwell sets up in full defense the Pennsylvania Workmen’s Compensation Act which admittedly applied to Pennsylvania employment and which statute contains the following (77 Purdon’s Statutes, See. 481): “Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment, or to any method of determination thereof, other than as provided, in article three of this act. Such agreement shall bind the employer and his personal ' representatives, and the employe, his or her wife or husband, widow or widower, next of kin, and other dependents.” The surviving spouse, Mary L. Kinchloe, requested and received benefits under the Pennsylvania Workmen’s Compensation Act. As is stated in 6 Moore’s Federal Practice, ¶ 56.17 [75] at page 2708: “. . . Hence in an action by an employee against his employer to recover for negligent injury or for violation of a statutory duty, a motion by the employer for summary judgment on the ground that the workmen’s compensation law is applicable and recovery must be in accordance therewith, the motion may be properly granted if there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law, In Wooddell v. Washington Steel Corporation, 269 F.Supp. 958 (W.D.Pa. 1967), a death action was brought against decedent’s employer. Motion for Summary Judgment under Federal Rule of Civil Procedure No. 56 was granted, since the plaintiff’s decedent had accepted the provision of the Workmen’s Compensation Act and acceptance under 77 Purdon’s Statutes § 481 “shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of employment.....” In Watson v. D/S A/S Idaho, 359 F. Supp. 496 (E.D.Pa.1973) a longshoreman brought an action against the owner of the vessel for injuries he received while working on a pier, unloading bales of hay from the vessel. The defendant made a Motion for Summary Judgment, which was granted. The Court stated on page 497 that there were no disputed facts, saying: “The facts are essentially undisputed. On May 19, 1971, plaintiff, a resident and citizen of Pennsylvania, was injured while performing duties within the course of his employment as a longshoreman.” The particular piece of equipment which caused the harm to the plaintiff was not owned by the defendant, but by the employer of the plaintiff. The defendant had no ownership or control of the item of equipment. The defendant established its lack of ownership and/or control with affidavits, and Summary Judgment was granted. The rationale was stated at page 498, as follows: “Plaintiff’s position regarding control of the operation, pier, and cherry picker rest upon mere allegations or denials and not upon specific facts supported by affidavits. Accordingly, we find that there is no genuine issue concerning control; thus, there is no genuine issues for trial. Fed.R.Civ.P. 56(e).” See also: Hartwell v. Allied Chemical Corporation, 457 F.2d 1335 (3d Cir. 1972) and cases cited therein. In 6 Moore’s Federal Practice, ¶ 56.-15 [4], it is stated that where a party’s Motion for Summary Judgment is supported by affidavits, and where the opposing party’s papers do not raise any triable issue, then Summary Judgment may be properly rendered. We must then determine whether the Pennsylvania Act applies, and we hold that it does. Under Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the Pennsylvania District Court will apply the substantive law of the forum state. A state’s substantive law includes its conflict of laws rules, Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). VanDusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) applies these principles even where a change of venue is granted for the convenience of the parties. (Pennsylvania law was held to apply to a plane crash in Massachusetts after a transfer was ordered to Massachusetts.) In choice of law cases, Pennsylvania law has applied a flexible rule. In Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), a survival action was brought against a Delaware corporation, which had its principal place of business in Chicago and regularly did business and maintained operational facilities in Pennsylvania. The decedent, a Pennsylvania domiciliary, had purchased an airplane ticket from the defendant in Philadelphia, Pennsylvania, for a flight from Philadelphia to Phoenix, Arizona. The airplane crashed in Denver, Colorado. The Court there stated as follows (203 A.2d pp. 805, 806) in an Opinion by Mr. Justice Roberts: “Thus, after careful review and consideration of the leading authorities and cases, we are of the opinion that the strict lex loci delicti rule should be abandoned in Pennsylvania in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court. As said in Babcock v. Jackson, supra, 12 N.Y.2d [473] at 481, 240 N.Y.S.2d [743] at 749, 191 N.E.2d [279] at 283, ‘The merit of such a rule is that “it gives to the place ‘having the most interest in the problem’ paramount control over the legal issues arising out of a particular factual context” and thereby allows the forum to apply “the policy of the jurisdiction ‘most intimately concerned with the outcome of [the] particular litigation’.” (Auten v. Auten, 308 N.Y. 155, 161, 124 N.E.2d 99, 102, supra.)’ It must be emphasized that this approach to choice of law will not be chaotic and anti-rational. ‘The alternative to a hard and fast system of doctrinal formulae is not anarchy. The difference is not between a system and no system, but between two systems; between a system which purports to have, but lacks, complete logical symmetry and one which affords latitude for the interplay and clash of conflicting policy factors.’ Harper, ‘Policy Bases of the Conflict of Laws: Reflections on Rereading Professor Lorenzen’s Essays,’ 56 Yale L.J. 1155, 1157-1158 (1947). Moreover, in evaluating qualitatively the policies underlying the significant relationships to the controversy, our standard will be no less clear than the concepts of ‘reasonableness’ or ‘due process’ which courts have evolved over many years. See Cheatham in ‘Comments on Babcock v. Jackson,’ 63 Colum.L.Rev. 1212, 1229, 1230-1231 (1963). We are at the beginning of the development of a workable, fair and flexible approach to choice of law which will become more certain as it is tested and further refined when applied to specific cases before our courts.” The Court then held that the Colorado limitation of damages would not apply, stating as follows (203 A.2d pp. 806-807): “The state in which injury occurred, as such, has relatively little interest in the measure of damages to be recovered unless it can be said with reasonable certainty that defendant acted in reliance on that state’s rule. Moreover, where the tort is unintentional, the reliance argument is almost totally untenable. Weintraub, ‘A Method for Solving Conflict Problems —Torts,’ 48 Cornell L.Q. 215, 220, 227 (1963). This is abundantly clear in the present case; the site of the accident was purely fortuitous. Ordinarily, the place of the injury may have an interest in the compensation of those who render medical aid and other assistance to the injured party. However, where death is immediate, as on the present facts, that state has no such interest. The absence of Colorado’s interest on the specific point is amply illustrated by the statute which limits recovery to damages incurred prior to death. An examination of the policies which apparently underlie that Colorado statute tends to indicate that state’s lack of interest in the amount of recovery in a Pennsylvania court. The limitation would seem to have been intended to prevent Colorado courts from engaging in what they might consider speculative computation of expected earnings and the extremely difficult mathematical reduction to present worth. The statute may be based on procedural considerations of purely local concern. Colorado would be unconcerned if a Pennsylvania forum is willing to engage in such computations. Or, the limitation might have been intended to protect Colorado defendants from large verdicts against them. Although United obviously does some business in Colorado, it is not domiciled there. Furthermore, it does business in and flies over other states, including Pennsylvania, which do not limit recovery. Certainly, United could reasonably anticipate that it might be subject to the laws of such states and could financially protect itself against such eventuality. The element of surprise is lacking. Pennsylvania’s interest in the amount of recovery, on the other hand, is great. The relationship between decedent and United was entered into in Pennsylvania. Our Commonwealth, the domicile of decedent and his family, is vitally concerned with the administration of decedent’s estate and the well-being of the surviving dependents to the extent of granting full recovery, including expected earnings. This policy is so strong that it has been embodied in the Constitution of Pennsylvania, Article III, Section 21 P.S. : ‘The General Assembly may enact laws requiring the payment by employers, or employers and employes jointly, of reasonable compensation for injuries to employes arising in the course of their employment * * * ; but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property, and in case of death from such injuries, the right of action shall survive * * *.’ (Emphasis supplied) From the foregoing analysis, we conclude that on the complaint before us (the facts of which must be accepted as true on preliminary objections), a valid cause of action in assumpsit has been stated and that the law of Pennsylvania is properly applicable to the issue of damages. Therefore, we must reverse the court below and remand for further proceedings not inconsistent with this opinion.”
3632836-26458	POOLER, Circuit Judge: The United States of America appeals from an order of the United States District Court for the Northern District of New York (David N. Hurd, Judge), suppressing evidence found following the stop and subsequent search of a vehicle driven by defendant Eric C. Wilson. See United States v. Wilson, 754 F.Supp.2d 450 (N.D.N.Y.2010). The vehicle stop was executed by two officers of the St. Regis Mohawk Police Department (“SRMPD”), one of whom was also cross-designated as a U.S. customs officer by the Department of Homeland Security U.S. Immigration and Customs Enforcement (“ICE”). The district court held that the vehicle stop violated the Fourth Amendment because the officers lacked the authority to act as law enforcement officers at the time of the stop. The court reasoned that the officers could not validly act as police officers under New York law because they stopped the vehicle outside their territorial jurisdiction and that they could not validly exercise customs authority because they had not obtained prior authorization as required by ICE policy governing designated customs officers. On appeal, the government does not dispute the district court’s determinations that the officers stopped Wilson in violation of New York law and ICE policy. The government instead argues that neither breach violates the Fourth Amendment because, under Virginia v. Moore, 553 U.S. 164, 172, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008), the Fourth Amendment does not incorporate state law or agency procedures or requirements. We hold that the violation of the ICE policy requiring prior authorization did not affect the constitutionality of the stop under the Fourth Amendment and that the stop and subsequent search comported with the Fourth Amendment because they were justified by probable cause. Accordingly, we reverse the decision of the district court. Because we determine that the stop was a constitutional exercise of designated customs authority, we do not decide whether the stop was also a constitutional exercise of New York police authority. BACKGROUND Defendant Eric Wilson was arrested following a vehicle stop by Detective Sergeant Matthew Rourke and Investigator Peter Barnes of the SRMPD near the United States-Canada border in northern New York, just outside the St. Regis Mo hawk reservation. Two U.S. Border Patrol agents arrived on the scene and searched the vehicle, turning up three duffel bags filled with marijuana. The agents took Wilson into custody. A grand jury indicted Wilson on one count of possession with intent to distribute fifty kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1). I. Wilson moved to suppress the evidence obtained in the search of his vehicle as the fruit of an unconstitutional vehicle stop and search. The district court held an evidentiary hearing, and made the following findings. A. The St. Regis Mohawk Reservation (the “Reservation”) abuts the border between the United States and Canada. The Reservation is part of the Akwesasne Mohawk Territory, which extends over the border to include the Akwesasne Mohawk reservation in Canada. At certain points within the Territory, a vehicle can travel to and from the United States without passing through a port of entry designated by U.S. Customs. Wilson is a citizen of the United States. At the time of the vehicle stop, his driver’s license indicated that he lived in St. Regis Falls, New York. St. Regis Falls lies approximately 45 minutes southwest of the location of the vehicle stop. Wilson is not a member of a federally recognized tribe in the United States, nor does he have any equivalent status in Canada. Sgt. Matthew Rourke and Inv. Peter Barnes were officers of the SRMPD, the tribal police department for the St. Regis Mohawk tribe. Under New York law, members of the SRMPD had full authority to act as New York police officers within the boundaries of the St. Regis Reservation, see N.Y. Indian Law § 114(1), (2); N.Y.Crim. Proc. Law § 1.20(34)(u), but beyond the reservation they were without authority to “exercise the duties or functions of a police officer” (subject to limited exceptions not relevant here), see N.Y. Indian Law § 114(8). In addition, Sgt. Rourke was one of two SRMPD officers cross-designated as a U.S. customs officer by ICE. See 19 U.S.C. § 1401® (providing for cross-designation of customs officers). At the sup pression hearing, the district court received into evidence the form designating Rourke a customs officer (“Designation form”), an ICE Office of Investigations Directive (“ICE Directive”) outlining policies governing designated customs officers, and an excerpt from the Memorandum of Understanding ICE executed with the SRMPD concerning the designation (“MOA”). Wilson stipulated at the suppression hearing that this designation paperwork was in order. The Designation form, ICE Directive, and MOA set forth the guidelines for Rourke’s use of his customs authority. The Designation form provided that Rourke was “subject to all guidelines, directives and instructions of ICE” when acting as a Customs officer. The form required that he contact the appropriate ICE Special Agent in Charge (“SAC”) or Resident Agent in Charge prior to conducting any examination or search of a vehicle. The ICE Directive provided that “the authority of a designated Customs Officer is valid anywhere within the United States ... and may be exercised as such, provided that a SAC is consulted and approval is received from that SAC.” Further, the ICE Directive “strictly prohibited” a designated Customs Officer’s “[u]se of [customs] authorities without first having been coordinated and approved by the appropriate SAC.” Finally, the MOA provided that ICE designations “will be used only for the duration of the specified law enforcement activity for which the approval was extended, and to the extent of such approval.” Both the MOA and the ICE Directive include language disclaiming that they confer any private rights. B. On the morning of Wilson’s arrest, Sgt. Rourke was monitoring radio traffic from his office in Hogansburg, New York, on the Reservation. At approximately 9:00 a.m., Officer Virginia Johnson of the SRMPD reported over the radio that she had seen a white man driving north in a green Pontiac Bonneville, heading toward an unguarded, unmarked crossing into Quebec. The Akwesasne Mohawk police in Canada reported back that they had located the vehicle and driver in Quebec, and had seen the vehicle reenter the United States through the same unmarked crossing through which it had exited. Within minutes of hearing that the green Bonneville had returned to the United States, Sgt. Rourke and Inv. Barnes left the police station in a police vehicle and soon found the Bonneville at a truck stop outside St. Regis territory. They observed that its rear license plate was obstructed by snow and road debris. At approximately 9:17 a.m., after following the vehicle for a short distance outside the reservation, the officers stopped the vehicle. They did not contact any ICE official prior to making the stop. Upon questioning, the driver identified himself as Eric C. Wilson (the defendant before us) and said he was on his way from his home in St. Regis Falls, New York, to go to work for a man named Phillip Tarbell. A record check showed that the vehicle was registered to Phillip Tarbell, who, the officers knew, had recently been arrested with approximately twenty pounds of marijuana. At some point, Officer Johnson arrived and identified both Wilson and the Bonneville as the driver and vehicle that she had earlier observed. Around the time that Sgt. Rourke learned that Phillip Tarbell was the registered owner of the vehicle, Sgt. Rourke telephoned ICE Agent in Charge Mario Fiacco, and obtained Agent Fiacco’s authorization to search the vehicle under his designated customs authority. Sgt. Rourke then conducted a second interview with Wilson. Wilson repeated his earlier account that he was coming from his home in St. Regis Falls, was on his way to work, and had stopped for gas at the truck stop without making any other stops. Upon Sgt. Rourke’s asking if Wilson had not, in fact, been to Canada, Wilson admitted he had been to Quebec and told Sgt. Rourke that he had done so to see a friend. Sgt. Rourke asked if Wilson had gone to Quebec to “score a little,” to which Wilson responded that he had visited the friend in Canada to obtain a small quantity of marijuana before going to work. He also admitted that he was in possession of a marijuana pipe. Sgt. Rourke had not conducted any search when U.S. Border Patrol Agents Justin Chamberlain and David Marston arrived at the scene. Agent Chamberlain interviewed Wilson, who again admitted that he was returning from Canada and that he had a marijuana pipe. Agent Chamberlain searched the vehicle and found three duffel bags containing a green leafy substance that a field test determined to be marijuana. II. Based on these findings, the district court granted the motion to suppress and affirmed that order on reconsideration. The district court concluded that the stop was unconstitutional because Sgt. Rourke and Inv. Barnes were without lawful authority to act — either in their capacity as SRMPD officers or in Sgt. Rourke’s capacity as a designated customs officer — when they made the stop. The court reasoned that Sgt. Rourke could not validly act as a designated customs officer when he stopped the vehicle because he had not obtained prior authorization to exercise customs authority as required by the ICE Directive. The court determined that Sgt. Rourke and Inv. Barnes could not validly act as police officers under New York law because they effected the stop outside of their territorial jurisdiction, the stop did not come within any exception to the limitation on their jurisdiction, and the stop was not a valid citizen’s arrest under New York law. The government now appeals. DISCUSSION On appeal, the government argues that the district court erred in granting Wilson’s suppression motion because the vehicle stop was justified under applicable Fourth Amendment standards and because neither the officers’ breach of their jurisdictional boundary nor their failure to comply with the ICE Directive had any bearing on the stop’s constitutionality under the Fourth Amendment. We hold that the stop comported with the Fourth Amendment because Sgt. Rourke, acting in his capacity as a cross-designated customs officer, had probable cause to stop the vehicle for a violation of federal law. We agree with the government that the failure to comply with the ICE Directive did not render the stop unconstitutional under the Fourth Amendment, and we therefore do not reach the separate question whether the breach of the state jurisdictional boundary violated the Fourth Amendment. I. In an appeal from a district court’s ruling on a motion to suppress, we review legal conclusions de novo, Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and findings of fact for clear error, United States v. Simmons, 560 F.3d 98, 103 (2d Cir.2009). Determinations of probable cause are mixed questions of law and fact that we review de novo, reviewing the underlying “findings of historical fact only for clear error and ... giv[ing] due weight to inferences drawn from those facts by resident judges and law enforcement officers.” Ornelas, 517 U.S. at 699, 116 S.Ct. 1657. II. The Fourth Amendment protects the “right of the people to be secure in their persons ... against unreasonable searches and seizures.” U.S. Const. amend. IV. This protection extends to vehicle stops. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “[T]he Fourth Amendment requires that an officer making a traffic stop have probable cause or reasonable suspicion that the person stopped has committed a traffic violation or is otherwise engaged in or about to be engaged in criminal activity.” United States v. Harrison, 606 F.3d 42, 45 (2d Cir.2010) (citation and internal quotation marks omitted). Probable cause to make a stop exists when an officer “has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the [suspect] has committed or is committing a crime.” United States v. Delossantos, 536 F.3d 155, 158-59 (2d Cir.2008) (internal quotation marks omitted). In addition, “[t]he touchstone of ... analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (internal quotation marks omitted). This reasonableness inquiry generally entails “assessing, on the one hand, the degree to which [a seizure] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Virginia v. Moore, 553 U.S. 164, 171, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). In Whren, the Court held that a case-by-case balancing of all factors bearing on the reasonableness of a seizure is not usually necessary when a seizure is justified by probable cause because, as a general matter, “probable cause to believe the law has been broken outbalances private interest in avoiding police contact.” Whren, 517 U.S. at 818, 116 S.Ct. 1769 (internal quotation marks omitted). The Court allowed, however, that not every search or seizure justified by probable cause necessarily satisfies the Fourth Amendment. A search or seizure supported by probable cause may be unreasonable in violation of the Fourth Amendment if it is “conducted in an extraordinary manner, unusually harmful to an individual’s privacy or even physical interests — such as, for example, seizure by means of deadly force, unannounced entry into a home, entry into a home without a warrant, or physical penetration of the body.” Id. at 818, 116 S.Ct. 1769 (citations omitted). Applying these principles to a vehicle stop justified by probable cause but made in violation of a local regulation limiting plainclothes officers’ authority to enforce traffic laws, the Court in Whren concluded that the violation of the regulation did not affect the reasonableness of the stop for Fourth Amendment purposes because “[t]he making of a traffic stop out of uniform does not remotely qualify as such an extreme practice.” Id. More broadly, the Whren Court suggested that such local police enforcement practices generally have no bearing on the reasonableness of a search or seizure because such practices, “even if they could be practicably assessed by a judge, vary from place to place and from time to time;” the court rejected the implication that “the search and seizure protections of the Fourth Amendment are so variable and can be made to turn upon such trivialities.” Id. at 815 (citations omitted). In Moore, the Supreme Court held that officers who had probable cause to arrest a suspect did not, by doing so in contravention of a state law limiting the circumstances under which an officer could make an arrest for certain offenses, violate the Fourth Amendment. Reaffirming Whren, the Court explained that “[w]e thought it obvious that the Fourth Amendment’s meaning did not change with local law enforcement practices — even practices set by rule.” Moore, 558 U.S. at 172, 128 S.Ct. 1598. The Court thus concluded that “while States are free to regulate ... arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.” Id. at 176, 128 S.Ct. 1598. Read together, Moore and Whren stand for the proposition that the Fourth Amendment does not generally incorporate local statutory or regulatory restrictions on seizures and that the violation of such restrictions will not generally affect the constitutionality of a seizure supported by probable cause. III. Applying these principles to this appeal, we conclude that the district court erred in granting Wilson’s motion to suppress. First, the stop was justified by probable cause to believe that Wilson had entered the United States in violation of federal law. Second, as a validly designated customs officer, Sgt. Rourke was authorized to effect the stop, and his violation of the ICE Directive — an internal agency policy — did not give rise to a Fourth Amendment violation because the Directive’s prior authorization requirement did not implicate any interest protected by the Fourth Amendment. A. We begin our analysis by determining whether the vehicle stop was justified by probable cause to believe that Wilson had committed or was committing a crime. Based on the district court’s findings of fact, we conclude that it was. First, the officers had probable cause to believe that Wilson had intentionally failed to enter the United States at an officially-designated border crossing in violation of 19 U.S.C. §§ 1433(b)(1) and 1436(a)(1), (c). At the time the officers stopped the vehicle, they were aware that the vehicle had left and reentered the United States in a brief period of time at an unguarded, undesignated border crossing. In addition, because (as the district court found) the officers had observed that the license plate was covered by snow and road debris, the officers had probable cause to believe that Wilson had violated Section 402(l)(b) of the New York Vehicle and Traffic Law by driving with an obstructed license. See N.Y. Veh. & Traf. Law § 402(l)(b), (8). B. We next address whether Sgt. Rourke’s violation of the ICE Directive’s requirement of obtaining prior authorization rendered the stop unconstitutional. The district court and Wilson appear to have assumed that the failure to follow the requirements of the ICE Directive was sufficient to warrant suppression. Such an assumption is untenable in light of Moore and Whren. The ICE Directive that Rourke violated provided that a designated customs officer’s “[u]se of [customs] authorities without first having been coordinated and approved by the appropriate SAC is strictly prohibited.” Wilson has not suggested, however, that, as a general matter, the Fourth Amendment requires an officer to obtain supervisory authorization prior to making a vehicle stop justified by probable cause, nor are we aware of any authority that could support such a suggestion. Cf. United States v. Caceres, 440 U.S. 741, 744, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979) (holding that IRS agents did not violate the Fourth Amendment by conducting surveillance in violation of regulations requiring prior authorization because “[n]either the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the eonversants”). Instead, Wilson’s Fourth Amendment argument rests entirely on the fact Sgt. Rourke violated the prohibition in the ICE Directive. This argument fails in light of Moore and Whren. Nothing about the Fourth Amendment elevates an internal law enforcement agency directive regarding the chain of command to constitutional significance. Whren allows that a stop supported by probable cause may be unreasonable if it is executed in an “extraordinary manner,” but Rourke’s failure to seek authorization does not present such a case because it does not implicate Wilson’s privacy or physical interests. See Whren, 517 U.S. at 818, 116 S.Ct. 1769. Indeed, the violation of the ICE Directive is materially indistinguishable from the violations at issue in Whren and Moore, and it is therefore subject to the general rule that local practices “do not alter the Fourth Amendment’s protections.” Moore, 553 U.S. at 176, 128 S.Ct. 1598; accord United States v. Felipe, 148 F.3d 101, 109 (2d Cir.1998) (“[Suppression is not an available remedy for violations of agency regulations that fail to raise constitutional questions.”). In addition, we observe that the district court erred in suggesting that Sgt. Rourke was utterly without authority to act as a designated customs officer when he effected the stop in violation of the ICE Directive. Wilson stipulated that Rourke was a validly designated customs officer. Nothing in the statute defining “customs officer” conditions that status on compliance with agency directives. See 19 U.S.C. § 1401(i). Thus, we need not address whether lack of valid status as a law enforcement officer would affect the constitutionality of a law enforcement action under Moore and Whren because Sgt. Rourke’s violation of the ICE Directive had no bearing on the validity of his status as a designated customs officer. C. Because we determine that the district court erred in concluding that Rourke’s failure to seek prior authorization under the MOA rendered him without authority to act and violated the Fourth Amendment, we need not — and do not — reach the separate question whether the officer’s violation of the state jurisdictional statute at issue in this case is controlled by Moore and Whren such that this state law violation does not affect the reasonableness of the stop. At oral argument, the government stated that, under its interpretation of Moore, a hypothetical child welfare officer from Wyoming could conduct a law enforcement action in New York City without offending the Fourth Amendment, so long as the action was justified by the requisite level of suspicion. The government’s position that Moore renders geographical jurisdictional limitations irrelevant to the Fourth Amendment would, if accepted, have far-reaching effects. Because a decision on the scope of Moore is unnecessary to resolving this appeal, we need not and hence do not reach this question. IY. Wilson’s suppression motion also challenged the validity of Agent Chamberlain’s search of the vehicle. The district court did not reach this question, but, based on the district court’s findings of fact, we conclude that the search did not violate the Fourth Amendment. Under the “automobile” exception to the warrant requirement, officers may conduct a warrantless search of a vehicle if they have probable cause to believe it contains contraband or other evidence of a crime. United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Probable cause to conduct a search “exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that evidence of a crime will be found in the place to be searched.” United States v. Gaskin, 364 F.3d 438, 456 (2d Cir.2004) (internal quotation marks and alterations omitted). “The scope of a warrantless search of an automobile ... is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” Ross, 456 U.S. at 824, 102 S.Ct. 2157. Thus, “[w]here the probable cause upon which the search is based extends to the entire vehicle, the permissible scope of the search pursuant to this exception includes every part of the vehicle and its contents including all containers and packages that may conceal the object of the search.” United States v. Navas, 597 F.3d 492, 497 (2d Cir.2010) (internal quotation marks and alterations omitted). Here, the question is whether Agent Chamberlain had probable cause to believe that Wilson had contraband in his vehicle, including the trunk. According to the district court’s findings, at the time of the search, the officers were aware of the following facts: Wilson was driving a vehicle registered to a man named Phillip Tarbell, who had recently been arrested with a large quantity of marijuana; Wilson had lied about having crossed the border at a non-designated border crossing point, and had then admitted to lying; and Wilson admitted that he had a marijuana pipe in his possession and that he had “scored a little” marijuana across the border. In light of this information, the vehicle search was justified by probable cause to believe that the vehicle contained contraband— namely, marijuana smuggled over the border. We therefore conclude that both the stop and search of the vehicle comported with the Fourth Amendment and that Wilson’s suppression motion was granted in error. CONCLUSION For the reasons stated above, the judgement of the district court hereby is REVERSED and the case is REMANDED to the district court for the entry of an order denying Wilson’s motion to suppress the evidence. . It was undisputed below that the vehicle stop took place outside St. Regis Territory, and the district court proceeded on basis of that stipulation. See Wilson, 754 F.Supp.2d at 454. On appeal, amicus curiae St. Regis has informed this court that these locations are within territory that is the subject of a pending land dispute between St. Regis and the State of New York. See Canadian St. Regis Band of Mohawk Indians v. New York, No. 5:82-cv-783 (N.D.N.Y. filed July 27, 1982). The parties acknowledge the dispute but do not request remand for fact-finding on this issue. As explained below, whether vehicle stop took place outside St. Regis territory does not affect the outcome of this appeal. For the purposes of this appeal, we assume that these locations were outside St. Regis territory, but we express no view as to whether this assumption is correct either as a legal or factual matter. . Section 1401(i) authorizes cross-designation by defining "customs officer” to include "any agent or other person ... designated by the Secretary of the Treasury to perform any duties of an officer of the Customs Service.” The Homeland Security Act of 2002, Pub.L. 107-296, 116 Stat. 2135 (codified at 6 U.S.C. § 101 et seq.), abolished the Customs Service and transferred its functions to the Department of Homeland Security, and leadership authority to the Secretary of the Department of Homeland Security. See id. § 403(1) (codified at 6 U.S.C. § 203). The Secretary delegated to ICE the authority to designate customs officers under 19 U.S.C. § 1401(f). See Department of Homeland Security Delegation Number 7030.2, Delegation of Authority to the Assistant Secretary for U.S. Immigration and Customs Enforcement § 2(A) (Nov. 13, 2004).
9113392-8528	BLACK, Circuit Judge: Thomas J. Kelly appeals the district court’s dismissal of his action against the current and former chairpersons of the Florida Democratic Party, the current and former Secretaries of the State of Florida, and United States Senator Bob Graham. The district court concluded Appellant lacked standing because he was a registered Republican who could not vote in the Florida Democratic Party’s primary elections. We affirm. I. BACKGROUND Appellant is a registered Republican who was elected or appointed to an executive committee office for the Republican party. After accepting the position, Appellant was asked to sign a party loyalty oath and was informed that he could not serve on the committee if he did not sign the oath. Appellant subsequently learned the Florida Democratic Party’s bylaws required its members to sign a similar oath, and he brought this action under 42 U.S.C. §§ 1983 and 1985(3) to challenge the party’s loyalty oath. According to his complaint, in 1970 the Florida Legislature repealed a portion of Fla. Stat. ch. 99:021, which required all political candidates for public office to sign a party loyalty oath. In 1983, Florida Attorney General Jim Smith issued an opinion to Charles Whitehead, then-Chairman of the Florida Democratic Party’s Executive Committee, in response to Whitehead’s query into the propriety of a loyalty oath as a qualification for the party’s nomination to public office. See Op. Atty’ Gen. 83-74 (Oct. 21, 1983). Attorney General Smith concluded § 99.021 did not authorize the Florida Democratic Party to require a loyalty oath. Despite this opinion, sometime between 1983 and 1985, the Florida Democratic Party adopted a loyalty oath as part of its bylaws and began requiring all candidates in the Democratic primaries to sign the oath. Appellant claims that, because the loyalty oath has not been authorized by the Florida Legislature, it constitutes an improper limitation on the time, place, or manner of holding elections. See U.S. CONST, art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of Chusing Senators.”). II. DISCUSSION Despite his Republican Party affiliation, Appellant asserts he has standing to challenge the Florida Democratic Party’s loyalty oath because it allegedly restricts the kind of candidates he will have the opportunity to vote for in the general election. Appellant complains that the oath effectively limits the slate of candidates in the general election to “party loyalists” only, while he desires the opportunity to vote for “free-thinking mavericks, like Senators McCain of Arizona and Miller of Georgia.” The first principle governing the jurisdiction of the federal courts is that federal courts are courts of limited rather than general jurisdiction. Aldinger v. Howard, 427 U.S. 1, 15, 96 S.Ct. 2413, 2420, 49 L.Ed.2d 276 (1976). This principle is so crucial to our constitutional understanding of the judicial branch that federal courts always have an obligation to examine sua sponte their jurisdiction before reaching the merits of any claim. Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 807 n. 9 (11th Cir.1993). Among other limitations, the federal courts’ jurisdiction is circumscribed by Article III’s case or controversy requirement. U.S. Const. art. III, § 2, cl. 1; Ala. Power Co. v. U.S. Dep’t of Energy, 307 F.3d 1300, 1308 (11th Cir.2002). There are several doctrines that elaborate upon Article III’s requirements for jurisdiction. The doctrine of standing is most central. Wooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1273 (11th Cir.2001) (“Perhaps the most important of the Article III doctrines grounded in the case-or-controversy requirement is that of standing.”). Other doctrines, such as mootness and ripeness, can be understood by reference to the doctrine of standing. See, e.g., 13 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3531 (1984) (“Both ripeness and mootness, indeed, could be seen as providing time-bound perspectives on the injury inquiry of standing.”). Standing is an irreducible minimum necessary under Article III’s case-or-controversy requirement. Alabama Power, 307 F.3d at 1308. To have standing, a plaintiff must show (1) he has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to conduct of the defendant; and (3) it is likely, not just merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000); Women’s Emergency Network v. Bush, 323 F.3d 937, 943 (11th Cir.2003). We review de novo a dismissal for lack of standing. Smith v. Shook, 237 F.3d 1322, 1324 (11th Cir.2001). Appellant cannot establish any injury under the facts as he has plead them. Two possible injuries can be immediately rejected. First, Appellant does not allege that he has been excluded from a Democratic primary ballot or party office. Such an alleged injury would surely satisfy the requirement of an injury in fact, yet Appellant makes no such allegation. Second, Appellant has not been injured with respect to his ability to vote in the Florida Democratic Party primary. Again, such an alleged injury would supply the necessary injury in fact, but as a registered Republican, Appellant is not eligible to vote in a Democratic primary to choose Democratic nominees for Congressional offices. Appellant’s complaint focuses on the general election, where he argues his choices are constrained by the effects of the Democratic Party loyalty oath. Even in a general election, however, there is no possible injury in fact. Appellant remains free in the general election to vote for independent or third-party candidates who have not signed any party’s loyalty oath, including possible write-in candidates. Appellant’s argument that no write-in or third-party candidates qualified for a recent election is beside the point; Appellant suffers no cognizable injury from the mere absence of an alternative candidate on the ballot. In addition, Appellant lacks standing under the causation or redressability elements, which are often interconnected. See 13 Wright, Miller & Cooper § 3531.5 (“The connection [of causation] to remedial benefit often is very practical — if the injury is not caused by the challenged acts, an order directed to them will not redress it.”). Appellant claims he has been injured because “party loyalists” always appear on the ballot in the general election; he would prefer the opportunity to vote for maverick, free-thinking candidates. There is nothing to indicate, however, that the loyalty oath causes Appellant’s alleged injury; the supposed curtailment of Appellant’s general election options is not fairly traceable to the loyalty oath. Considered another way, there is no reason to believe the abolition of the Florida Democratic Party’s loyalty oath would result in anyone other than a party loyalist prevailing in the Democratic primary and appearing as the Florida Democratic Party’s candidate in the general election. A court order striking the loyalty oath from the Florida Democratic Party’s bylaws will not redress Appellant’s alleged injury. We therefore conclude Appellant lacks standing because he cannot satisfy any of the constitutional requirements for a case or controversy. The district court did not err in granting the defendants’ motions to dismiss. AFFIRMED. . The Florida Secretaries of State have not participated in this appeal, though Appellant’s notice of appeal included the district court order granting those defendants' motions to dismiss. The district court dismissed Appellant’s claims against them on the same grounds as it dismissed his claims against the Democratic Party defendants. The Democratic Party defendants’ brief adequately addresses the legal issues Appellant raises in his appeal of both district court orders. . Appellant failed to effect service of process on Senator Graham, and his complaint against Senator Graham was dismissed pursuant to Fed.R.Civ.P. 4(m).
7405924-13751	MEMORANDUM AND ORDER JOYNER, District Judge. I. Introduction On August 30, 1992, Defendant Philadelphia Housing Authority (PHA) discharged Plaintiff Ronald K.M. Williams, Esquire (Williams) citing the misfeasance and nonfea-sance of duties as Assistant Counsel to PHA. Williams brought this suit against PHA alleging violations of 42 U.S.C. § 1983 and Pennsylvania state law. Williams alleged in counts I and II of his complaint that PHA terminated his employment without a proper hearing thus depriving him of both property and liberty interests protected by the Fourteenth Amendment. Count III included an additional state claim for breach of contract. We now face cross-motions for summary judgment. PHA moved for summary judgment asserting that 1) as an at-will employee, Williams had no expectation of continued employment with PHA and, therefore, no property interest; 2) PHA offered Williams the opportunity to challenge his discharge and was not, therefore, deprived of due process in connection with a liberty interest; and 3) as an at-will employee, Williams had no contract. Williams incorporated his response to PHA’s motion with his own cross-motion for partial summary judgment. First, he argued that he detrimentally relied upon a written agreement with PHA which allegedly guaranteed continued employment upon his return from medical leave and that such reliance is sufficient to create a property interest under the equitable estoppel doctrine. Second, he asserted that PHA violated his liberty interests because stigmatizing information concerning his employment with PHA was .published without the opportunity for a formal hearing. Lastly, although he incorporated the same equitable estoppel argument to support his state breach of contract claim in response to PHA’s motion, he did not include this claim in his cross-motion for summary judgment. II. Facts PHA hired Williams on May 10, 1991, as an at-will employee to serve as an Assistant Counsel. At the time, he was a four-year member of the bar of Pennsylvania and of the Eastern District of Pennsylvania. Defendant Roxanne Galeota was his immediate supervisor and General Counsel, defendant Elton Jolly was the Executive Director, and defendant Anthony Hughes was the Director of Human Resources. On August 31, 1992, PHA discharged Williams following a well documented series of unauthorized absences and misconduct. In November 1991, Ms. Galeota reprimanded Williams in writing for taking a vacation day without prior approval. Despite the warning, Williams continued to take unauthorized absences which also began to affect his performance. On May 12, 1992, without having given notice to Ms. Galeota or the court of his planned absence, Williams failed to appear for a scheduled settlement conference before the Honorable William H. Yohn Jr. of the United States District Court for the Eastern District of Pennsylvania. PHA subsequently suspended Williams from his duties without pay. Also in May, Williams received a separate suspension for other repeated and unauthorized absences. Finally on July 9, 1992, following a failure to attend a scheduled arbitration meeting, Ms. Galeota placed Williams on 90 day probation. Despite the probation, William’s misconduct continued. On July 16, Williams submitted a memorandum stating that he would be absent the next day. However, he neglected to coordinate the appropriate measures necessary to cover a scheduled court appearance before the Honorable Robert F. Kelly of the United States District Court for the Eastern District of Pennsylvania. The next day, Judge Kelly notified PHA of Williams’ failure to show in court forcing Ms. Galeota to represent PHA via telephone in Williams’ stead. As a result of this series of misconduct, Ms. Galeota notified Williams that she planned to recommend his termination and offered him an opportunity to resign. Williams, however, declined to resign and, Ms. Galeota terminated his employment effective July 30. Williams subsequently requested and obtained a personal interview with Mr. Jolly, PHA’s Special Master who has the final authority over all dismissals. Williams explained that his poor performance came as a result of the stress that he suffered arising from personal domestic disputes and related litigation. He argued that if not for the domestic problems, his performance would be satisfactory. With Mr. Jolly’s approval, Williams received a 30 day medical leave of absence. A letter from Ms. Galeota, conditioned the approval of the leave on several stipulations. First, Williams was to submit a medical certificate supporting his medical leave. Second, he was to use the leave to resolve all personal difficulties preventing him from satisfactory performance. Third, PHA was obligated only to return Williams to a job at the same grade and pay level as he previously held. Lastly, in the event of further infractions of a similar nature Williams would be subject to immediate termination without the opportunity for appeal to Mr. Jolly. During Williams’ leave, Ms. Galeota distributed the vacant workload to the other attorneys. As the new attorneys reviewed the material, they discovered evidence that Williams allegedly submitted inaccurate case reports to Ms. Galeota. In these reports, he failed to disclose his failure to respond to discovery requests in several cases. All of the failures to respond resulted in the courts levying substantial monetary sanctions against PHA. Based on this new evidence, PHA terminated Williams’ employment effective August 30, 1992. In a meeting with Williams, Ms. Galeota and Mr. Hughes advised him verbally and in writing of the reasons for his termination. They informed Williams that the letter of termination would not be placed in his employment record for two weeks giving him the opportunity to resign his position. They also gave him the opportunity to file a written appeal within ten days of the termination’s effective date to Mr. Jolly. Williams did not file an appeal with Mr. Jolly, but instead on September 7, 1992, demanded in writing to Mr. Hughes a formal discovery and evidentiary hearing. On September 15, Ms. Galeota wrote and again offered him the opportunity to submit a written statement to Mr. Jolly if he wished to challenge the termination. On September 23, 1992, Williams' finally submitted a letter to Mr. Jolly again only demanding formal discovery and an eviden-tiary hearing. Williams did not challenge his termination by offering facts, evidence or sound reasons to support his position. Mr. Jolly reviewed the letter and affirmed Williams’ termination effective August 30, 1992 for the nonfeasance and misfeasance of his duties as counsel to PHA. III. Standard Summary judgment is appropriate where the evidence before the court shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e). When examining a motion for summary judgment, the court must view the facts in a light most favorable to the non-moving party. United States v. Hall, 730 F.Supp. 646, 648 (M.D.Pa.1990). The court’s responsibility is not to resolve disputed issues of facts but to determine whether there are any factual issues to be tried. Anderson v. Liberty Lobby, 477 U.S. 242, 247-49, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986). The movant bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If met, the burden then shifts to the non-moving party who must then go beyond the pleadings, affidavits, depositions and interrogatories to show that there is more than a metaphysical doubt as to material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In eases where the parties filed cross-motions for summary judgment, each side essentially contends that no issue of material fact exists from its perspective. Hall, 730 F.Supp. at 648. We must, therefore, consider each motion for summary judgment separately. Id. The standards under which we grant or deny summary judgment do not change because cross-motions are filed. Id. Each party still bears the initial burden of establishing a lack of genuine issues of material fact. Id. Such contradictory claims do not necessarily guarantee that if one party’s motion is rejected, the other party’s motion must be granted. See id. quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.1968). IV. Discussion For the sake of simplicity and since the parties are arguing opposite sides of the same issues, we will establish each argument separately, the opposition thereto, and then the pertinent law and its application. A Alleged deprivation of property interests PHA moves for summary judgment on the grounds that under Pennsylvania law an at-will employee has no expectation of future employment and, therefore, cannot have a property interest. Since Williams was an at-will employee, PHA argues that his deprivation of property interest claim must fail. Williams does not dispute his former status as an at-will employee and concedes that Pennsylvania law does not recognize that a public, at-will employee may have a property interest in continued employment. He instead argues that the equitable estoppel doctrine creates an exception to Pennsylvania’s stringent at-will employment doctrine. He alleges that since he detrimentally relied on the léave agreement with PHA, his discharge constituted a deprivation of property interest. We agree with PHA and find that Williams’ equitable estoppel exception is insufficient to overcome Pennsylvania’s at-will employment doctrine. As a result, we will grant PHA’s motion for summary judgment concerning the property interest claim and deny Williams’ opposing cross-motion. Defining Williams’ property interest in public employment depends upon Pennsylvania law. See Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). Pennsylvania law is clear: unless there is specific legislative language to the contrary, public, at-will employees do not have a property interest in continued employment. Cooley v. Pennsylvania Housing Finance Agency, 830 F.2d 469, 471 (3d Cir.1987) citing Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960); see also Unger v. National Residents Match ing Program, 928 F.2d 1392, 1399 (3d Cir.1991) (finding that a property interest may arise where a state entity can terminate employment only for cause). Nor does Pennsylvania law recognize equitable estoppel as an exception to the at-will employment doctrine. Paul v. Lankenau Hosp., 524 Pa. 90, 95, 569 A.2d 346, 348 (1990); Andrew v. Lemmon Pharmacal Co., 767 F.Supp. 657, 659 (E.D.Pa.1990); Carlson v. Arnot-Ogden Memorial Hosp., 918 F.2d 411, 416 (3d Cir.1990). Williams, however, asks this court to rely on Bolduc v. Board of Supervisors, 152 Pa.Cmwlth. 248, 618 A.2d 1188, 1191 (1992) as a basis for the equitable estoppel exception. There the court found that to apply the equitable estoppel doctrine against a government agency, it must have intentionally or negligently misrepresented some material fact and induced a party to act to his or her detriment, knowing or having reason to know the other party would justifiably rely on the misrepresentation. Id. Williams alleges that PHA misrepresented the fact that he would retain his position with PHA upon return from medical leave and that PHA knew or had reason to know that he would rely on the promise. Because of the promise, Williams argues that he did not seek alternative employment. However, Williams’ reliance on Bolduc is without merit. First, the court in Bolduc did not reach the equitable estoppel inquiry, and the opinion concerning equitable estoppel must be treated as mere dictum. Even so, Pennsylvania’s Supreme Court has not addressed Bolduc’s equitable estoppel exception and is not, therefore, sufficient to supplant or supplement the Pennsylvania’s at-will employment laws. Secondly, even if Bol-duc represented current law, Williams’ allegations on their face do not establish the necessary elements of the doctrine. Williams does not present evidence that PHA intentionally or negligently misrepresented some material fact. Thus, Williams fails to demonstrate that the equitable estoppel exception creates a property interest in continued, public employment. Pennsylvania law is clear that Williams as a public, at-will employee has no property interests in continued employment with PHA. We must, as a result, grant PHA’s motion for summary judgment and deny Williams’ opposing cross-motion. B. Alleged deprivation of liberty interests Williams additionally alleged in his complaint that he was deprived of a liberty interest as a result of the dissemination of stigmatizing information connected with his discharge. PHA now moves for summary judgment because even assuming that the elements essential for a stigmatization claim exists, PHA did not deny Williams due process. Williams alleges that although he consistently and in a timely manner demanded a formal discovery and evidentiary hearing, PHA refused his request and that such denial of formal proceedings constituted a deprivation of due process. The central issue then is whether adequate due process requires formal discovery and an evidentiary hearing as requested by Williams. We find that it does not, and, for reasons discussed below, we again grant PHA’s motion for summary judgment on the liberty interest allegation and deny Williams’ cross-motion for summary judgment.
99300-22098	OPINION ROSEN, United States Magistrate Judge. I. INTRODUCTION Presently before the court is the motion of Theresa Donahue Egler, Esquire, counsel for Defendant Public Service Electric and Gas Company (“PSE & G”), to compel the production of documents pursuant to Rule 26 of the Federal Rules of Civil Procedure. After careful consideration of the parties’ submissions, and for the reasons noted below, the defendant’s motion shall be GRANTED. II. FACTUAL AND PROCEDURAL HISTORY In this putative class action, the plaintiffs allege that their employer, PSE & G, im properly denied them overtime pay in violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., (“FLSA”) and the New Jersey Wage and Hour Law, NJSA 34:11-56al, et seq., (“NJWHL”). (Complaint, ¶ 2; Certification of Richard M. Schall, ¶¶3, 4) (hereinafter “Schall Cert.”). The present motion concerns 141 questionnaires produced by the plaintiffs’ attorneys from the Tomar, Simonoff, Adourian, O’Brien, Kaplan, Jacoby & Graziano law firm (“Tomar”) and distributed to certain employees at PSE & G’s Nuclear Business Unit (“NBU”) in Hancock’s Bridge, New Jersey, approximately two weeks before suit was filed against PSE & G. (Schall Cert., ¶¶ 6-10). Tomar did not disclose the existence of these 141 questionnaires in either the plaintiffs’ Initial Disclosures or in response to the defendant’s First Request for Production of Documents. (Defendant’s Brief at 1) (hereinafter “Defs. Br.”); (Certification of Theresa Donahue Egler, ¶ 5) (hereinafter “Egler Cert.”). Defense counsel contends, and plaintiffs’ counsel does not contest, that they only learned of these questionnaires at a deposition conducted approximately six months after the complaint was filed in response to a question they posed to a deponent. (Defs. Br. at 2). The questionnaires were created by Tomar attorneys and distributed at a meeting held in a public firehouse in Salem, New Jersey, (“firehouse meeting”) in January 1998. (See Schall Cert., ¶¶ 6, 10, questionnaire attached as Exhibit A to Schall Cert.). Attorneys from Tomar state that they attended this meeting because one or more of the now named plaintiffs informed them that there was a group of NBU employees who wished to discuss the possibility of suing PSE & G for overtime pay. (Schall Cert., ¶ 5). According to the deposition testimony of named plaintiff William Kittle, Tomar attorneys invited Mr. Kittle to the firehouse meeting. (Deposition of William Kittle, T. 9:13 to 10:16, attached as Exhibit 5 to Egler Cert.) (hereinafter “Kittle Dep.”). Mr. Kittle further testified that word of the firehouse meeting spread through PSE & G in conversations between the employees, not through individual invitations extended by Tomar attorneys. (Kittle Dep., 9:13 to 10:16). The majority of those in attendance from PSE & G had no previous communication with the Tomar firm. (Defs. Br. at 5). Rather, most attended the meeting only after hearing about it at work. (Defs. Br. at 5). Tomar believes that approximately forty people were at the firehouse meeting, although they have no record of the people who attended. (Egler Cert., Ex. 8, ¶ 3). Indeed, Tomar presumes that the forty unidentified people were PSE & G employees even though this was an open meeting held in a public facility. (Schall Cert., ¶ 8). The To-mar attorneys distributed their blank questionnaires to those forty people who attended. (Schall Cert., ¶ 12). The questionnaires included questions concerning the employees’ job titles, departments, job duties, training and education, job history at PSE & G, salary, work hours, and other questions pertaining to the employees’ compensation, and overtime hours worked. (Schall Cert., Ex. A). During the course of the firehouse meeting, Tomar gave out additional copies of the questionnaires for distribution among NBU PSE & G employees not in attendance. However, Tomar is unaware which people at the firehouse meeting received the additional questionnaires. (Egler Cert., Ex. 8, ¶ 6). Tomar is likewise unaware of the names of all the PSE & G employees who eventually received those questionnaires. (Egler Cert., Ex. 8, ¶ 6). It was not until the deposition of named plaintiff Dennis Kimble, which occurred approximately six months after the filing of the lawsuit, that defense counsel learned of the existence of the questionnaires. (Deposition of Dennis Kimble, T. 268:17 to 269:24,. attached as Exhibit 4 to Egler Cert.) (hereinafter “Kimble Dep.”). During the deposition, Mr. Kimble mentioned the questionnaire in response to a question. (Id.). Counsel for the defendant asked plaintiffs’ counsel to produce these documents, a request that was denied by plaintiffs’ counsel. (Id. at 271-273). Only after this deposition did Tomar disclose the list of the 141 PSE & G employees who had completed and returned the questionnaires. However, the completed questionnaires themselves were not disclosed. (Egler Cert., Ex. 10). Tomar had no prior communication with most of the employees who completed the questionnaire. (Egler Cert., Ex. 10, ¶¶ 7-8). There were some general communications with the employees who attended the firehouse meeting, and Tomar subsequently had some type of written communications with the PSE & G employees who chose to join this lawsuit as potential class plaintiffs. (Egler Cert., Ex. 10, ¶¶ 7-8). There are a number of PSE & G employees who completed the questionnaires, but who subsequently chose not, or were not invited, to join plaintiffs’ lawsuit. (Schall Cert., ¶¶ 21-24). Indeed, deposition testimony of named plaintiff Dennis Kimble indicates that he had not even considered suing PSE & G before he received and completed the questionnaire. (Kimble Dep., T. 273:25 to 274:9, attached as Exhibit 4 to Egler Cert.). He was under the impression that the questionnaires were informational only, and not being used for litigation. (Kimble Dep., T. 277:1-25). Since learning of the existence of these questionnaires, defense counsel has sought production of them in discovery. (Egler Cert., ¶ 5). Although Tomar eventually produced blank copies of the questionnaires at issue, they have refused to produce the completed questionnaires. (Schall Cert., ¶¶28-31). Consequently, defense counsel moves to compel the production of the questionnaires. Tomar contends that the defendant’s motion to compel should be denied because the substance of the communication is protected from discovery by the attorney-client privilege and the work product doctrine. Conversely, the defendant asserts that the questionnaires are not protected because Tomar was not acting as counsel when the questionnaires in dispute were distributed and completed. III. DISCUSSION A. Privilege Doctrines The attorney-client privilege and the work product doctrine are two separate principles intended to protect litigants from unfettered disclosure. See Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947). The Federal Rules of Civil Procedure allow parties to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party ... if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). The privileges noted in Rule 26(b)(1) aré encompassed in Rule 501 of the Federal Rules of Evidence. Rule 501 states that the application of any claimed privilege is governed by the common law, unless otherwise provided by the Constitution or other federal statute. In eases premised upon federal question jurisdiction, as is the case here, federal common law governs the evidentiary privileges, rather than state law. Harding v. Dana Transport, Inc., 914 F.Supp. 1084, 1090 (D.N.J.1996) (citing Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 671 F.2d 100, 103 (3d Cir.1982)). The party claiming the privilege has the burden of establishing that the privilege applies. Id. at 1089-90. 1. Attorney-Client Privilege The United States Supreme Court has recognized that the purpose of the attorney-client privilege is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981); see also In re Grand Jury Investigation, 599 F.2d 1224, 1235 (3d Cir.1979) (“the attorney-client privilege exists to foster disclosure and communication between the attorney and the client”). No bright-line rule governs the applicability of the attorney-client privilege and, as a result, the applicability of the privilege should be determined on a case-by-case basis. Upjohn, 449 U.S. at 396-97, 101 S.Ct. at 686. The Third Circuit has enumerated the traditional elements of the privilege: The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. In re Grand Jury Investigation, 599 F.2d at 1233 (quoting United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass.1950)). Courts have found that “because the privilege obstructs the search for the truth and because its benefits are, at best, ‘indirect and speculative,’ it must be ‘strictly confined within the narrowest possible limits consistent with the logic of its principle.’” Harding, 914 F.Supp. at 1091 (quoting In re Grand Jury Investigation, 599 F.2d at 1245). Here, Tomar cannot establish that the 141 PSE & G employees who completed the questionnaires were clients or sought to become clients at the time the employees returned the completed the questionnaires. They also have no record of communicating with any of these individuals prior to the completion of the questionnaires. . Moreover, the questionnaires were distributed before the lawsuit was even filed in a firehouse that was open to the general public where any person, even a person not employed by PSE & G, could have attended and filled out a form. The only specific communication that To-mar can identify prior to the distribution of the questionnaires is the firehouse meeting. Yet, there is no evidence that even those forty persons who attended that meeting were then or are now clients of the Tomar firm: the identity of the persons-who may or may not have been employees-at the public firehouse meeting is unknown. Moreover, the names of the people who were given the questionnaires at the firehouse meeting are also unknown. Without this information, To-mar cannot even establish that the people at the firehouse meeting were some of the same 141 PSE & G employees who completed and returned the questionnaires to the Tomar firm. They also cannot establish that all or some of these forty employees later chose to join the lawsuit. Further, there are at least 100 other employees that did not even attend the firehouse meeting, but who returned completed questionnaires. More importantly, the majority of the PSE & G employees who completed the questionnaires were given these questionnaires by other PSE & G employees at work after the firehouse meeting. Indeed, some of the employees found the questionnaire just sitting on their desks at work in plain view-hardly an indicia óf a confidential communication. (Deposition of Lyle Mayer, T. 55:6 to 56:10, attached as Exhibit 5 to Egler Cert.) (hereinafter “Mayer Dep.”). These employees indisputably had not attended the firehouse meeting. There is also no record that these employees had any communications with To-mar-directly or indirectly-at the time they completed the questionnaires. Consequently, there is nothing to indicate that these employees were seeking to become clients at the time they completed the questionnaires. Although some or perhaps even many of the PSE & G employees may have eventually executed a consent to join the case, Tomar has no record of communications with the employees prior to the time they completed the questionnaires. In fact, it appears that the ultimate purpose of the questionnaire was to solicit potential clients. Because “[t]he professional relationship for purpose of the privilege for attorney-client communications ‘hinges upon the client’s belief that he is consulting a lawyer in that capacity,’” Tomar cannot show that it was acting as counsel for the PSE & G employees at the time the questionnaires were distributed and completed. Connelly v. Dun & Bradstreet, 96 F.R.D. 339, 342 (D.Mass.1982) (quoting Westinghouse. Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir.1978), cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978)) (attorney sent cover letter with questionnaires indicating that he was a court-appointed attorney and that he was acting in a legal capacity in soliciting the information sought by the questionnaires). In addition, Tomar appears to assert a representational relationship based on its projection that this litigation will proceed as a class action. However, at this juncture, this is only a putative class action and not a certified class action. The employees who have filed notices seeking to join this lawsuit as class members, therefore, cannot be considered clients of the Tomar firm. Even if certified as a class, “class members are really neither parties to the litigation nor clients of plaintiffs’ counsel.” Penk v. Oregon State Bd. of Higher Ed., 99 F.R.D. 511, 516 (D.Or. 1983). As a result, only the named plaintiffs are clients of the Tomar firm at this stage. Id. Therefore, Tomar cannot assert the attorney-client privilege with respect to the employees who submitted the questionnaires but are not named plaintiffs because only clients can claim this privilege. See Harding, 914 F.Supp. at 1090. Nevertheless, even if that were not the case, factual information conveyed to an attorney -by a client is not shielded from discovery by the attorney-client privilege. Penk, 99 F.R.D. at 516. Tomar is trying to protect against the disclosure of the completed questionnaires under the guise of the attorney-client privilege. But, the questionnaires contain fact inquiries that have nothing to do with legal representation. Tomar further seeks to extend this privilege even to those who declined or may not have been invited to join the class action. The attorney-client privilege does not cover such information and, as a result, does not apply to the 141 questionnaires at issue. 2. Work Product Doctrine The work product doctrine provides an independent ground upon which litigants may rely for protection of attorney materials prepared for trial. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The purposes behind the work product doctrine differ from those underlying the attorney-client privilege. The attorney-client privilege protects communications between clients and their attorneys, thus encouraging an open dialogue. See Harding v. Dana Transport, Inc., 914 F.Supp. at 1097. In contrast, the work product doctrine maintains legal professionalism by precluding attorneys from capitalizing on an adversary’s work efforts. Hickman, 329 U.S. at 511, 67 S.Ct. at 393-94. This doctrine has been codified as to tangible items in Rule 26(b)(3), Fed.R.Civ.P. Id. The rule is aimed at protecting the legal theories developed by counsel in preparation for litigation. Id. In light of this purpose, the questionnaires in this case are not protected by the attorney work product rule. The completed questionnaires are simply fact statements provided by 141 PSE & G employees before any attorney ever communicated with them. Tomar gave the questionnaires to several PSE & G employees, and then these employees openly distributed the questionnaires to numerous other PSE & G employees. The survey was not distributed in a confidential matter. Indeed, some employees found the questionnaire on their desks and had no idea who had placed it there. (Mayer Dep., T. 55:6 to 56:10, attached as Exhibit 6 to Egler Cert.). Even more significant, however, is the fact that Tomar produced a blank questionnaire during discovery. In this court’s opinion, the actual questions conceived and organized by Tomar are the only arguable work product of the Tomar attorneys. That Tomar produced this portion of the discovery, the only portion they actually created, indicates that they do not regard the actual questionnaire as work product. Instead, the Tomar attorneys contend that the employee informational product is that which the work product doctrine protects. In a strikingly similar case, the United States District Court for the District of Alaska granted the defendant’s motion to compel plaintiff counsel’s questionnaires. Dobbs v. Lamonts Apparel, Inc., 155 F.R.D. 650 (D.Alaska 1994). In Dobbs, present and former employees of the defendant who were potential class members were given questionnaires to complete by the plaintiffs’ attorneys. Id. The potential class members completed the questionnaires and returned them to the plaintiffs’ attorneys. Id. During the course of discovery, a copy of the blank questionnaire was produced for the defendant, but the completed questionnaires were not made available. Id. The plaintiffs then filed a motion to protect the completed questionnaires from discovery arguing that the questionnaires were protected by the work product doctrine. The defendant moved to compel the production of the completed questionnaires. The Dobbs court held that work product protection did not apply because the completed questionnaires were necessary for the full and fair development of the case. Id. at 653. When counsel for the plaintiffs argued that the information was otherwise discoverable through interrogatories and depositions, the Court responded: What is qualifiably privileged is the work of counsel. What a witness “knows” is not the work of counsel. That the witness’ knowledge should be discoverable on a first-hand basis but not in the form of answers given to opposing counsel in writing, strikes the court as an example of elevating form over substance; and is as far as the qualified work product privilege is concerned, a fiction. Id. at 652. See also Hudson v. General Dynamics Corp., 186 F.R.D. 271 (D.Conn. 1999) (questionnaires completed by employees prior to becoming clients are not protected under work product because they are simply witness statements with none of the elements of privilege). The Dobbs court further found that there was a substantial need for the defendant employer to obtain the questionnaires under the work product rule announced in Rule 26(b)(3), Fed.R.Civ.P. Similarly, in the instant matter, the defendant has a substantial need for the completed questionnaires. The questionnaires contain specific factual information relating to the job duties and compensation of employees who are potential class members. They likewise contain information relating to each employee’s opinion of whether he or she supervises other employees, whether he or she has the authority to hire and fire other employees, and whether any specialized training or education is required. (Egler Cert., Ex. 1). These are all disputed issues of fact crucial in determining whether overtime compensation was wrongly or rightly denied by PSE & 6. Moreover, the questionnaires completed by the employees who chose not to join this lawsuit are also critical to PSE & G’s defense because they may contain information that runs contrary to the claims of the proposed class plaintiffs. It would be patently unfair, as an alternative, to require counsel to depose each of the 141 individuals and review the questions as they appear in the disclosed blank questionnaire. This would be unduly burdensome for both parties. It would also defeat the purpose of plaintiffs’ class, action in the sense that a class action suit allows discovery to be consolidated through representative plaintiffs. See Penh, 99 F.R.D. at 516. Further, requiring defense counsel to conduct 141 depositions prior to the time it must serve its response to plaintiffs’ motion for class certification would cause unnecessary delay to the case. Moreover, some of these employees no longer work for PSE & G, and the defense may not be able to compel their appearance at a deposition. It would be equally burdensome to require PSE & G to serve 141 sets of interrogatories as an alternative to producing the questionnaires. Moreover, the interrogatory answers might be somewhat unreliable because, “[gjiven the opportunity to answer the same question twice at a substantial time interval, almost anyone will answer the question differently unless coached to give the same answer.” Dobbs, 155 F.R.D. at 652. Furthermore, if Tomar provided the relevant information through interrogatories rather than the actual statements, they ironically would be providing the mental impressions that the work product doctrine is intended to protect. In answering interrogatories, counsel is using the same mental abilities to develop the case for clients as counsel employs to evaluate the questionnaires for the purpose of sorting out that which is discoverable. In addition, PSE & G is also entitled to the questionnaires for impeachment purposes should the matter proceed to trial. Therefore, the work product doctrine does not apply to the 141 questionnaires filled out by the PSE & G employees. B. Failure to Disclose Existence of Questionnaires
1090022-7462	PHILLIPS, Circuit Judge. This is an appeal from a judgment denying a petition for a writ of habeas corpus. McCleary was charged by two indictments returned in the District Court of the United States for the Western District of Pennsylvania with violations of the postal laws. He entered pleas of guilty to the several counts thereof and was sentenced to a term of imprisonment of 25 years. After serving part of the sentences imposed, petitioner filed an application for a writ of habeas corpus in the District Court of the United States for the District of Kansas alleging that he was denied the assistance of counsel for his defense in the criminal proceedings and that the sentences imposed were void. The court found that petitioner was denied assistance of counsel for his defense in the criminal proceedings, ordered him discharged from the custody of the warden of the penitentiary in which he was confined, and delivered to the United States Marshal for the Western District of Pennsylvania. A bench warrant was issued on the indictments and petitioner was taken into custody thereon and confined in the Erie and Allegheny County, Pennsylvania jails. On January 12, 1940, the judge of the Pennsylvania Federal Court appointed Lloyd W. Kennedy to act as counsel for petitioner on the trial of such indictments. The court later appointed A. M. Tua as additional counsel for petitioner. On February 21, 1940, the acting United States Attorney for the Western District of Pennsylvania filed a motion to vacate the pleas of guilty theretofore entered by the petitioner to the indictments. A rule was entered upon petitioner and his counsel to show cause why the pleas of guilty should not be declared void and vacated. On February 29, 1940, Kennedy and Tua, after a full hearing on the motion, agreed that such pleas should be vacated and an order was entered vacating the pleas and the judgments entered thereon. Petitioner did not agree to but objected to the order. On March 18, 1940, petitioner was arraigned a second time on the indictments and entered his plea of not guilty to each of the several counts thereof. On the same day, he was tried on the indictments, being represented at the trial by Kennedy. The jury returned verdicts of guilty. He was sentenced to a term of imprisonment of 25 years and was delivered into the custody of Hudspeth, warden, on March 27, 1940. Petitioner, in his application for the writ herein, set up the foregoing facts and further alleged that he was being subjected “to double punishment for one offense”; that he was being subjected to cruel and unusual punishment; that he was tried, convicted, and sentenced without due process of law; that he was tried on two indictments at one time before one jury; that a part of the record of the Pennsylvania Federal Court was changed or altered to secure his conviction ; that he was denied compulsory process to procure witnesses for his defense; that he was compelled to be a witness against himself; and that he was not permitted to consult with counsel at every stage of the proceedings. The warden filed an answer to the application in which he set up the facts above stated and denied the foregoing allegations of the application. A writ of habeas corpus ad testificandum was issued and petitioner was brought before the court and testified at the hearing. He was represented by C. D. Holman, an attorney of Leavenworth, Kansas. After a full hearing, the court found the facts hereinbefore recited; specifically found that petitioner was competently and capably represented by counsel appointed by the Pennsylvania Federal Court; that petitioner was afforded full opportunity to consult with such counsel; that he was not denied the assistance of counsel for his defense; that he was not denied the right to have witnesses subpoenaed in his behalf; that he did not request the court to subpoena any witness in his behalf at the expense of the government; that he was sane and rational at the time of the trial; and found the issues generally against petitioner. The findings of the trial court are fully supported by the evidence. Petitioner urges that by subjecting him to trial on the indictments, he was twice put in jeopardy for each of the offenses charged in the indictments, contrary to the provisions of the Fifth Amendment to the Constitution of the United States. In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, the court held that compliance with the provision of the Sixth Amendment guaranteeing the accused the right to have the assistance of counsel for his defense is an essential prerequisite to a Federal Court’s authority to deprive the accused of his life or liberty; and that where the accused neither has been accorded nor properly waived such right, and the court nevertheless proceeds to sentence the accused, the judgment is void and subject to collateral attack on habeas corpus. By the first proceeding in habeas corpus in the United States District Court for the District of Kansas, petitioner obtained a judgment declaring that the sentences imposed on the pleas of guilty were void because the court had proceeded without petitioner having been accorded the right to the assistance of counsel for his defense. The pleas of guilty having been entered at a time when petitioner had neither waived rtor been accorded his right to the assistance of counsel, the pleas of guilty and the judgments entered were invalid and were properly vacated by the Pennsylvania Federal Court. A proceeding, to constitute a proper basis for a claim of former jeopardy, must be valid. If the proceedings are lacking in any fundamental prerequisite which renders the judgment void, they will not constitute a proper basis for a claim of former jeopardy. Here, the proceedings, including the pleas of guilty, the judgments entered, and the sentences pronounced, lacked essential validity and it follows that they cannot constitute a proper basis for a claim of former jeopardy. Where a prisoner obtains his discharge on habeas corpus on the ground that the sentence under which he is being held is illegal, he is precluded on resentence on a prior valid conviction or upon due conviction from urging the objection of double jeopardy. The United States District Court for the District of Kansas had authority to direct the return of the petitioner to the Pennsylvania Federal Court for further proceedings on the indictments. The fixing of penalties for crimes is a legislative function. What constitutes an adequate penalty is a matter of legislative judgment and discretion, and the courts will not interfere therewith unless the penalty prescribed is clearly and manifestly cruel and unusual. Schultz v. Zerbst, 10 Cir., 73 F.2d 668, 670. Where the sentence imposed is within the limits prescribed by the statute for the offense committed, it ordinarily will not be regarded as cruel and unusual. The other grounds for the writ set up in the application are foreclosed by the trial court’s findings. The judgment is affirmed. Hereinafter referred to as petitioner. Hereinafter referred to as the Pennsylvania Federal Court. State v. Heard, 49 La.Ann. 375, 21 So. 632; People v. Casey, 251 App.Div. 867, 297 N.Y.S. 13, 14; State v. Bartlett, 181 Iowa, 436, 164 N.W. 757, 758, L.R.A.1918A, 1179; People v. Cuatt, 70 Misc. 453, 126 N.Y.S. 1114, 1118; May v. State, 110 Ark. 432, 162 S.W. 43, 44; Commonwealth v. Roby, 12 Pick., Mass., 496, 501.
4309567-19509	SILER, Circuit Judge. This is a consolidated appeal, in which a jury convicted defendants Marciso Nava Valdez and Jaime Mancilla Soberanis (collectively, the defendants) of conspiring to distribute and to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The defendants appeal the sufficiency of the evidence to sustain their convictions. For the reasons explained below, we AFFIRM. FACTUAL AND PROCEDURAL BACKGROUND In 2012, a confidential informant told Agent Rodd Watters of the Tennessee Bureau of Investigation (TBI) about a group from Georgia, led by Leticia Gonzalez, who was interested in buying cocaine. The August 24 Meeting On August 24, 2012 the confidential informant placed a call to a contact in Gonzalez’s group, and the individual requested that the confidential informant and Gonzalez meet. Agent Watters arranged a meeting that same day at a Cracker Barrel restaurant in East Ridge, Tennessee. Gonzalez met with the confidential informant on the front porch of the Cracker Barrel to discuss the sale of large quantities of cocaine. Co-defendant Carl Hunt drove Gonzalez to the meeting in a silver Chevrolet Camaro. Hunt also took part in the meeting on the front porch. The confidential informant told Gonzalez about his source, who was in fact Agent Watters acting in the undercover capacity as a cocaine distributor. TBI surveillance at the Cracker Barrel did not reveal any countersurveillance by anyone associated with Gonzalez. Countersurveillance refers to the practice of following the buyer of illegal substances in order to protect the buyer and to locate any law enforcement in the area. The August 29 Meeting Agent Watters first met face-to-face with Gonzalez on August 29 at the East Ridge Cracker Barrel. The purpose of the meeting was for Agent Watters to sell nine kilograms of cocaine (an amount the group had previously requested) to the Gonzalez group. Crosby Jones, an agent with the Drug Enforcement Agency, worked surveillance. Special Agent Jones was positioned in a parking lot across the street from the Cracker Barrel and was assigned to provide close cover to Agent Watters and to look for individuals that may have been conducting countersurveillance in the area. Jones witnessed Gonzalez’s silver Camaro pull into an empty BB & T Bank parking lot, located “just down the street” from the Cracker Barrel. Shortly thereafter, a red Toyota Camry pulled in and “just sat there.” The Camaro then drove directly next to the Camry. Nobody exited the vehicles, but “it appeared as though they were having a conversation, being parked that closely.” The Camaro exited the BB & T parking lot and drove to the Cracker Barrel. Then the Camry drove to a mini mall near to where Agent Jones was parked, and after a few minutes, the Camry pulled into the Cracker Barrel parking lot. Gonzalez exited the passenger side of the Camaro and walked toward the front porch of the Cracker Barrel to meet with the informant. Meanwhile, J.J. Higgins, the driver of the Camaro, remained in the Camaro. Soberanis exited the back passenger side of the Camry and entered the passenger side of the Camaro. Jones observed that two individuals remained in the Camry: an unidentified driver and Valdez. After So-beranis got out of the Camry, it drove back to the parking lot closer to Agent Jones. When Soberanis walked back to the Camry from the Camaro, “he had a cell phone in his hand with an earplug” in his ear. Gonzalez met the informant on the front porch of the Cracker Barrel. Watters then arrived, and the informant introduced him to Gonzalez as the source. Watters and Gonzalez discussed whether Gonzalez was ready to purchase nine kilograms of cocaine. At one point, Gonzalez called someone on her cellphone and said in Spanish, “Tell J.J. to come here, please.” At trial, the government argued that she was calling Soberanis, who was identified as being in the Camaro with Higgins around the same time Gonzalez placed the call. Gonzalez eventually reneged on the original agreement to purchase nine kilograms of cocaine and instead sought to purchase just one kilogram “so her guy could test it.” Gonzalez and Agent Wat-ters could not reach a deal. After the failed meeting, Agent James Hixson followed the Camaro to a gas station, where the Camry pulled in alongside the Camaro. The parties “appeared to be involved in conversation.” Agents fol lowed the Camry from the gas station to an apartment complex in Georgia. Agent Sammy McNelly observed as three Hispanic males exited the Camry and stood around a black truck at the complex. A Hispanic male wearing a white t-shirt exited from the Camry and walked away from the group while he was on the phone. The Hispanic male in the white shirt and a Hispanic male that had exited the Camry wearing a striped shirt left in the truck. Testimony of various agents implied that the two males were Soberanis and Valdez based on the description of the clothing associated with each of the defendants as they were identified earlier that day. September 6 Meeting On September 6, Agent Watters again met with Gonzalez at a different Cracker Barrel in Tiftonia to “flash her 5 kilograms of cocaine.” Agent Watters succeeded at showing Gonzalez and her son the cocaine located in the trunk of a car. Gonzalez said, “That’s exactly how we want it,” and the parties began negotiating whether she could take five kilograms. Agents at the scene did not detect any countersurveil-lance, nor did they see the red Camry. September 10 Meeting Agent Watters and Gonzalez arranged to meet on September 10 in order for Gonzalez to purchase four kilograms of cocaine. Shortly after making the deal over the phone, Gonzalez called back and asked to reduce the amount to three kilograms of cocaine because “one of her guys had not come through with their money.” Agent Watters met Gonzalez and Gonzalez’s son on the front porch of the Tiftonia Cracker Barrel. When Watters approached them, he told Gonzalez that she was killing him with the delays and remarked that she was late. She apologized and indicated that “the other car that was with her was driving slow and taking their time and she was having to tell them where to go and it would not happen again this way.” Watters asked, “We still waiting on somebody? ... What, is he driving like a lil’ granny?” Gonzalez answered “Yes!” Gonzalez’s son also affirmed that Gonzalez was having troubles with the “other driver.” Gonzalez was on the phone speaking in Spanish, and then announced, “He’s here, the guy.” A short time later, Watters asked, “Is [the guy] gonna take [the cocaine] back with you?” Gonzalez responded in Spanish, “Si. [yes].” When Gonzalez, Watters, and Gonzalez’s son walked from the front porch to the Camaro, Watters noticed the same red Camry that had been at the August 29 meeting parked just “two spots away from” the Camaro; the Camry had not been present when Gonzalez arrived. So-beranis exited the passenger side of the Camry and appeared to begin approaching Watters, and Watters asked Gonzalez if she knew him. Gonzalez said something to Soberanis in Spanish, and he returned to the passenger seat of the Camry but left the passenger door ajar. Gonzalez and Watters walked to the Camaro where Gonzalez remarked that Watters “looked hungry.” The $75,000 was in a Capri Sun box in the back floorboard of the Camaro, and Watters flipped through the cash while sitting in the Camaro. Watters asked if Gonzalez wanted the cocaine in the Camry, and she indicated that she did. Watters called another agent on the phone to ask him to bring the cocaine and directed the agent to, “Just pull up behind ... this red one here. We can trade, we can put it in the trunk. Alright?”. This was the signal for the takedown, and the agents arrested Gonzalez, Gonzalez’s son, Valdez, and Soberanis. Valdez was in the driver’s seat of the Camry, and Soberanis was in the passenger’s seat. The agents recovered a cell phone in the Camry. After searching the phone, the agents discovered that Gonzalez’s number was programed in the phone under the name “la doña,” “La doña” is a Spanish term of respect for a woman in “a higher position of authority.” A grand jury indicted Gonzalez, Valdez, Soberanis, Higgins, and Hunt for conspiring to distribute and to possess with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846." Gonzalez, Higgins, and Hunt pleaded guilty to the conspiracy count. A jury convicted Valdez and Soberanis. Valdez and Soberanis each appeal the denial of their Fed.R.Crim.P. 29 motion for judgment of acquittal. STANDARD OF REVIEW “This Court reviews a ‘challenge to the sufficiency of the evidence by considering the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.’ ” United States v. Blackwell, 459 F.3d 739, 760 (6th Cir.2006) (quoting United States v. Spearman, 186 F.3d 743, 746 (6th Cir.1999)). ANALYSIS “To prove a conspiracy under 21 U.S.C. § 846, the government was required to prove, beyond a reasonable doubt, (1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.” United States v. Pritchett, 749 F.3d 417, 431 (6th Cir.2014) (internal quotation marks omitted). “The existence of a conspiracy may be inferred from circumstantial evidence that can reasonably be interpreted as participation in the common plan.” United States v. Martinez, 430 F.3d 317, 330 (6th Cir.2005) (internal quotation marks omitted). Once the government establishes a conspiracy beyond a reasonable doubt, “a defendant’s connection to the conspiracy need only be slight.” Id. (internal quotation marks omitted). Here, there is no question that a conspiracy existed. Gonzalez and other co-defendants pleaded guilty to the conspiracy. Moreover, the government produced an abundance of evidence at trial that showed Gonzalez was not acting alone when she negotiated with Agent Watters to purchase large quantities of cocaine. The question is whether sufficient evidence establishes that Valdez and Soberanis had the knowledge and intent to join the conspiracy and whether sufficient evidence supports that they participated in the conspiracy. Both Valdez and Soberanis argue that the evidence establishes only that they were present at two of the four meetings and that no more than speculation connects them to the conspiracy. We disagree. Valdez The government presented evidence to show that Valdez was present at the two meetings that were supposed to result in the purchase of large quantities of cocaine. Valdez was identified as being in the Camry on the August 29 meeting. The Camry was parked near the Cáma-ro — which was associated with the leader of the conspiracy in this case, Gonzalez — at a BB & T Bank shortly before Gonzalez met with Agent Watters to negotiate a cocaine transaction. A reasonable juror could infer that the occupants of the Camry and the Camaro were communicating, since no other vehicles were located at the BB & T parking lot and the vehicles were parked closely together. Moreover, after the transaction failed, the same Camaro, associated with Gonzalez and the same Camry associated with Valdez stopped at a gas station where an agent saw a group of Hispanic individuals talking. A reasonable juror could infer that Valdez spoke with Gonzalez both before and after the August 29 failed meeting. At the September 10 meeting, Valdez drove the Camry. Gonzalez told Agent Watters that she was late for the meeting because “the other car that was with her was driving slow and taking their time and she was having to tell them where to go and it would not happen again this way.” When Agent Watters and Gonzalez walked toward Gonzalez’s Camaro to retrieve the $75,000 and to transfer the cocaine to the Gonzalez group, Gonzalez confirmed that she wanted the cocaine placed in the Camry. A reasonable juror could conclude that the “other car” that had caused Gonzalez to be late for the meeting was the Camry and that the driver who was driving like a “lil’ grannie” was Valdez. A reasonable juror could conclude that Valdez planned to transport the cocaine back to Georgia in the Camry and took directions from Gonzalez. While it is possible that Valdez did not know that cocaine was going to be placed in the Camry he was driving, the circumstantial evidence makes that hypothesis unlikely. -To sustain a conviction, we are not required to snuff out every reasonable hypothesis except that of guilt. See Blackwell, 459 F.3d at 760. Soberanis Soberanis similarly was present at both meetings that were supposed’ to result in the purchase of large quantities of cocaine. He was in the Camry, which was seen parked closely to Gonzalez’s Camaro shortly before the August 29 meeting. Unlike Valdez, however, Soberanis was directly linked to the driver of the Camaro, Higgins, who ultimately pleaded guilty to the conspiracy count in this case. At the August 29 meeting, Soberanis exited the Camry and went to the Camaro where Higgins was seated in the driver’s seat. Agents also observed that Soberanis appeared to be on the phone and with Higgins (J.J.) around the same time that Gonzalez phoned someone and said, “Tell J.J. to come here, please.” Agents followed the Camry and the Camaro to a gas station after the failed August 29 meeting and observed a group of Hispanic individuals conversing. A reasonable juror could infer that Soberanis was involved in the August 29 meeting. Soberanis was the passenger in the Camry that was supposed to transport cocaine at the September 10 meeting. He also attempted to exit the vehicle and possibly approach Agent Watters, but he obeyed whatever Gonzalez said to him in Spanish and returned to the Camry. Government agents testified that they believed the defendants were either conducting countersurveillance, were supposed to provide money for the exchange, or were designated to be the transporters of the drugs. Any of these activities is sufficient to support participation in the conspiracy. Soberanis and Valdez argue that they were only present for fifty percent of the meetings that took place, but a conviction under § 846 does not require proof of involvement in every facet of the conspiracy. See United States v. Avery, 128 F.3d 966, 971 (6th Cir.1997) (“The government need not show that a defendant participated in all aspects of the conspiracy; it need only prove that the defendant was a party to the general conspiratorial agreement.”). Indeed, the fact that the defendants were only present during the two meetings that were supposed to result in the actual pur chase of cocaine makes the case against them even more compelling. This fact and the other evidence against the defendants renders it “highly unlikely that this was simply a case of being in the wrong place at the wrong time.” United States v. Torres-Ramos, 536 F.3d 542, 558 (6th Cir.2008). Similarly to the case at hand, in Toms-Ramos we affirmed a conviction of two defendants who appealed their conviction by challenging the sufficiency of the evidence as to them knowing participation in a drug conspiracy. Id. at 556-59. The government produced the following evidence: other co-defendants had transported cocaine with the intent to distribute; previous cocaine deliveries had been made to a man named “Cricket” who drove an Oldsmobile; the defendants were spotted driving an Oldsmobile matching the description of Cricket’s Oldsmobile; the defendants behaved strangely near the location of a scheduled drug delivery; the defendants were directly connected to a co-defendant whose fingerprints were found on the drugs; and phone records connected the defendants to co-defendants on the day of their arrest. Id. at 557. We distinguished the facts in Torres-Ramos from other cases in which we have reversed a conviction by emphasizing: the defendants in the instant case exhibited suspicious behavior at the parking lot where the drug deal was purportedly set to take place ... and phone calls between [the defendant in question] and the [other] defendants make it highly unlikely that this was simply a case of being in the wrong place at the wrong time.... Id. at 557-58. Notably, the only evidence in Torres-Ramos that linked the defendants specifically to their knowledge of the object of the conspiracy — which was to distribute cocaine — was that a co-defendant said that he had delivered cocaine to “Cricket” in the past and was going to deliver cocaine to him again in the parking lot where the defendants arrived in a vehicle matching the description of Cricket’s vehicle: The defendants cite United States v. Sliwo, 620 F.3d 630 (6th Cir.2010), in support of their position. In Sliwo, we overturned a conviction because “participation in a scheme whose ultimate purpose a defendant does not know is insufficient to sustain a conspiracy conviction under 21 U.S.C. § 846.” Id. at 633. The government presented the following evidence: the defendant was linked to his alleged co-conspirators, who personally observed the loading of 900 pounds of marijuana into a van; the defendant arranged to'transport the van before it was loaded with drugs; and the defendant served as lookout on three separate occasions. Id. Evidence that was lacking in Sliwo is present in this case. For example, in Sli-wo we reasoned that the “government failed to provide any evidence of any observed conversations between Defendant and his alleged co-conspirators.” Id. By contrast, a reasonable juror could conclude that Soberanis spoke directly to Higgins in the Camaro at the August 29 meeting and could also reasonably conclude that Sober-anis spoke with Gonzalez over the phone directly at the same August 29 meeting. Gonzalez also spoke to Soberanis just before the take-down at the September 10 meeting. While Valdez’s connection is a closer call, a jury could reasonably conclude that Gonzalez spoke with Valdez during the trip from Georgia to the Chattanooga area on the September 10 meeting, since Gonzalez’s “guy” needed directions. A jury could also reasonably conclude that Valdez spoke with co-defendants before and after the August 29 meeting. Moreover, agents repeatedly observed Valdez with Soberanis, whom the jury also convicted in this ease. Finally, the cell phone in the Camry connected the defendants to Gonzalez, specifically as a woman of authority. In Sliwo we also emphasized that “the government can point to no evidence that links Defendant to marijuana, the essential object of the conspiracy.” Id. at 684 (internal quotation marks omitted). But here, the defendants were present on both occasions where the Gonzalez group intended to purchase cocaine. The defendants also behaved suspiciously at the August 29 meeting by moving their vehicle to various locations around the Cracker Barrel before ultimately parking at the Cracker Barrel. At the September 10 meeting the defendants were present to transport the cocaine, which is in contrast to the defendant in Sliwo, who merely served as a lookout. Although the defendants in this case did not pop the trunk, and the cocaine was never placed in the trunk of the Camry, a reasonable juror could conclude that Valdez and Soberanis knew and believed that the cocaine was going to be placed in the trunk of their Camry.
6072411-21526	OPINION Raum, Judge: The Commissioner determined income tax deficiencies and additions thereto in the aggregate amount of $262,552.07 for the years 1954, 1955, 1956, 1959, and 1960. The parties have reached agreement as to all issues except those involving certain farming expenses referred to as “cultural practices expenditures.” These remaining issues affect only the deficiencies for the years 1956,1959, and 1960, but the year 1958 appears to be involved also by reason of a possible carryover. The facts have been stipulated. Richard R. Wilbur resided with his wife Dorothy during the tax years in Yuba City, Calif. She is involved herein only because they filed joint returns. He died in December 1961 and will sometimes hereinafter be referred to as the taxpayer. He was engaged in farming on a large scale in the Sacramento Valley, particularly in the production of peaches, primes, almonds, and English walnuts, all of which are grown on trees. A tree will not bear a crop of commercial value for at least several years after planting; thus, a peach tree will not produce a paying crop until the fourth year of its life, a prune tree until the sixth year, and an English walnut tree until the eighth year. After the initial capital expenses are incurred in planting the orchards, it is necessary to make large expenditures from time to time thereafter for irrigation, cultivation, pruning, fertilizing, spraying, and other care of the trees which have not yet reached the productive state. Such expenditures are referred to as cultural practices expenditures. They are apparently similar in character to maintenance expenses for like purposes after full production has been attained, and the parties have stipu lated that “They were ordinarily paid in his [taxpayer’s] farming business, and they were necessarily so paid.” The Treasury has long recognized that although cultural practices expenditures are of the type that may normally be deducted as ordinary and necessary expenses, they also bear a similarity to capital outlays, and it has given farmers an option to treat them either way. This option is presently contained in Income Tax Regulations section 1.162-12 which provides: “Amounts expended in the development of farms, orchards, and ranches prior to the time when the productive state is reached may be regarded as investments of capital.” Identical provisions in prior regulations have been in effect for some 45 years, and a ruling issued as far back as 1923 has explicitly interpreted the regulations as meaning that “the taxpayer has the option of charging such amounts as expense or capitalizing them.” I.T. 1610, II-l C.B. 85. The dispute between the parties herein is whether certain cultural practices expenditures in the years 1956, 1958, 1959, and 1960 must be capitalized, in view of the manner in which such expenditures or portions thereof were treated on the returns for those years. We turn to the facts out of which the issues arise. In each of the years 1953,1954, and 1955, the taxpayer made substantial cultural practices expenditures, which he deducted in full as business expenses on his returns and which were allowed by the Commissioner. In 1956 the taxpayer made substantial cultural practices expenditures in respect of orchards planted in prior years as well as cultural practices expenditures in the amount of $19,575 in respect of orchards planted in 1956; he deducted as business expenses the amounts relating to the previously planted orchards, but included the $19,575 in the cost of planting the new orchards in 1956 which he capitalized. The Commissioner made no adjustment in the taxpayer’s treatment of any of the cultural practices expenditures made in 1956. The taxpayer made substantial cultural practices expenditures in 1957 which he deducted in full as business expenses; the Commissioner did not disturb these deductions. In the preparation of the 1958, 1959, and 1960 returns, the taxpayer and his accountants computed his cultural practices expenditures as $38,881.14, $66,003, and $64,300.50, respectively. When these returns were prepared, the accountants explained that no taxable income would appear thereon and, acting upon their advice, the taxpayer determined to capitalize these amounts so that he could recover them in subsequent years through depreciation. Accordingly, these amounts were in fact included among the capital expenditures reflected on the returns for each of the years, and depreciation deductions have been taken in respect thereof in subsequent years — all in accordance with the taxpayer’s books. The taxpayer and his accountants thought that they were capitalizing expenditures to the maximum extent permitted by law in the 1958-60 returns. However, through oversight, they miscalculated the amounts of cultural practices expenditures during each of those years, which in fact were $81,653.50, $95,002.40, and $73,157.50, respectively. The differences of $42,771.76, $28,999.40, and $8,857 were included among the deductions for business expenses in the 1958, 1959, and 1960 returns, respectively. In supporting the deficiencies determined for 1959 and 1960 the Commissioner takes the position that these additional amounts which had been deducted in the 1958-60 returns must be capitalized along with the amounts of cultural practices expenditures actually reflected as capital items on those returns. Petitioners, on the other hand, contend that the taxpayer had a right to deduct cultural practices expenditures and that to the extent that such deductions were actually taken on the returns they may not be disturbed. In addition, petitioners make the sweeping contention that all cultural practices expenditures are by their nature deductible business expenses and that the regulations giving taxpayers the option to treat such expenditures as capital outlays or deductions are invalid. Finally, they contend that even if the regulations are valid the taxpayer was entitled to deduct the cultural practices expenditures capitalized in the returns. In connection with that final contention they filed amended returns for 1958-60 on January 2, 1963, and an amended return for 1956 on March 12, 1963, claiming all cultural practices expenditures as deductions for such years, even those capitalized in the original returns. As to the deficiencies for 1959 and 1960, petitioners point to the fact that other adjustments required by the Commissioner result in taxable income for these years, and they argue that since the taxpayer thought he did not have any taxable income at the time be filed his original returns, he did not have a meaningful choice when he elected to capitalize cultural practices expenditures, with the consequence that he should not be bound by that election. As to 1956, they argue that the $19,575 cultural practices expenditures were mistakenly capitalized and should now be treated as business deductions. We hold, first, that the Commissioner may not require the capitalization of those amounts actually deducted in the taxpayer’s original returns for 1958-60; second, that the applicable regulations permitting the capitalization of cultural practices expenditures are valid; and, third, that the taxpayer was bound by the election to capitalize the amounts actually reflected as capitalized in the 1958-60 returns, as well as the amount capitalized in the 1956 return. 1. In the 1958-60 returns, cultural practices expenditures in the respective amounts of $42,771.76, $28,999.40, and $8,857 were in fact included among the deductions taken. The Commissioner does not dispute that such deductions were authorized under section 162(a) of the 1954 Code, which provides for a deduction of “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” However, he does contend that the taxpayer elected to capitalize dll cultural practices expenditures in the years 1958-60, that the adjustments giving rise to the 1959 and 1960 deficiencies in this respect simply correct the error made by the taxpayer in determining all of the cultural practices expenditures, and that such adjustments merely give full effect to the election made by the taxpayer. We think that the Commissioner’s position is based upon a misconception of the record. It is true that the taxpayer and his accountants believed that they were capitalizing expenditures to the full extent permitted by law when they capitalized cultural practices expenditures in the amounts of $38,881.74, $66,003, and $64,300.50 in the 1958-60 returns, respectively. And it is true that, through oversight, like expenditures relating to some orchards were overlooked in this respect, and that such latter expenditures, in the amounts of $42,771.76, $28,999.40, and $8,857 were in fact deducted rather than capitalized. But this is a far cry from concluding that the taxpayer elected' to capitalize these latter amounts. He in fact elected to capitalize only those expenditures which were capitalized on the returns, thinking that they consisted of all the cultural practices expenditures in those years. Whether he would have capitalized the additional cultural practices expenditures, had he known about them, is nowhere established in the record. Quite possibly he would have elected to capitalize these amounts had he realized that they represented cultural practices expenditures. But the fact is that he did not so elect, whether by error or otherwise, and he in fact took deductions to which he was entitled under the statute. The Commissioner makes clear in bis brief that he “does not contend that an election to capitalize a portion of the cultural practices expenditures paid in a year requires the capitalization of all such expenditures.” Thus, the farmer is not required to treat all cultural practices expenditures the same way; he may capitalize some and deduct others. And the Commissioner therefore does not contend that the taxpayer must capitalize all cultural practices expenditures merely because he has capitalized some. Rather, he argues that the taxpayer has actually elected to capitalize all such expenditures. We do not so read the record. The taxpayer was in error when he thought he was capitalizing all such expenditures, but he in fact deducted large amounts in excess of those that he capitalized. He might or might not have elected to deduct all had he known what the correct amounts were. But the fact is that the deductions in his 1958-60 returns included cultural practices expenditures in the amounts of $42,771.76, $28,999.40, and $8,857. He was entitled to those deductions under section 162(a) and petitioners may not now be deprived of the benefit of them on the theory that he had elected to capitalize these expenditures on his returns. He did no such thing. 2. In arguing that the taxpayer was entitled to deduct not only the cultural practices expenditures actually deducted on the returns — a position that we have just approved — but also those capitalized on the returns, petitioners make the broad contention that the regulations authorizing the capitalization of such expenditures are inconsistent with the statute and are therefore invalid. They take the position that cultural practices expenditures are by their very nature business expenses rather than capital outlays, and that as such they can only be taken as deductions. We think that their argument rests upon an oversimplified analysis of the situation. To be sure, once an orchard has come into production, expenditures for irrigation, pruning, fertilizing, etc., are ordinary and necessary business expenses; they are a charge against current income and must be taken as deductions. But the situation is far less clear prior to the time that an orchard has reached the productive state. The expenditures prior to that time may be considered in every real sense as part of and directly related to the cost of acquiring a producing orchard, and as such have the characteristics of capital outlays. Cf. Ernest A. Jackson, 9 T.C. 307, affirmed 172 F. 2d 605 (C.A. 7), certiorari denied 338 U.S. 816. Central Real Estate Co., 17 B.T.A. 776, affirmed 47 F. 2d 1036 (C.A. 5), and related cases upon which peti tioners particularly rely must be read in the light of the later decision in Jackson. It is thus apparent that expenditures which upon superficial analysis may appear to be merely business expenses actually have strong characteristics of both capital outlays and business expenditures. It is not a choice between black or white. Rather, these expenditures fall in a band of gray between black and white, and we think that the regulations giving the farmer an election to treat such expenditures either way was well within the authority of the Secretary of the Treasury under the statute. As noted above (p. 324), identical regulations have been in effect for some 45 years. The rule has firmly been established that Treasury regulations are valid unless unreasonable or plainly inconsistent with the statute and that they should not be set aside except for weighty reasons. Commissioner v. South Texas Co., 333 U.S. 496, 501; Fawcus Machine Co. v. United States, 282 U.S. 375, 378; Boske v. Comingore, 177 U.S. 459, 470; Brewster v. Gage, 280 U.S. 327, 336; Textile Mills Corp. v. Commissioner, 314 U.S. 326, 336-339; Colgate Co. v. United States, 320 U.S. 422, 426. This rule is particularly applicable here in view of the long continued period during which such regulations have been in effect and during which the statute has so often been reenacted and amended without disapproval of the regulations. Cf. Buttolph v. Commissioner, 29 F. 2d 695, 696 (C.A. 7); Helvering v. Winmill, 305 U.S. 79, 83; Taft v. Commissioner, 304 U.S. 351, 357; McFeely v. Commissioner, 296 U.S. 102, 108; Hartley v. Commissioner, 295 U.S. 216, 220; Old Mission Portland Cement Co. v. Helvering, 293 U.S. 289, 293-294; Helvering v. Bliss, 293 U.S. 144, 151: Brewster v. Gage, 280 U.S. 327, 337. These regulations were adopted for the the benefit of the farmer, and we should be very slow indeed to wipe them out at the behest of one taxpayer whose strategic litigation interests in this particular case would be served by such action to the disadvantage of all other farmers. We do not find in these regulations that inconsistency with the statute that calls for their invalidation. Petitioners refer to the fact that the parties have stipulated that the expenditures here were “ordinarily paid in his [taxpayer’s] farming business, and they were necessarily so paid.” This stipulation, of course, does not mean that the parties agreed that these expenditures must be treated as business expenses; if it did there would be no point to this lawsuit and that would be the end of the controversy. We think that it means simply that to the extent that the expenditures are to be treated as business expenses the “ordinary and necessary” requirement of the statute is satisfied. The question whether they must be treated as business expenses rather than capital outlays is left open. On that matter, the regulations give the farmer an option, and we refuse to hold that such regulations are unauthorized by law. 3. Petitioners contend that even if the regulations are valid, the taxpayer nevertheless was not bound by his election to capitalize cultural practices expenditures in the returns for 1956 and 1958-60. (a) As to 1956, petitioners argue that although cultural practices expenditures in the amount of $19,575 were in fact included by the taxpayer in the total amount capitalized on the return for that year, he did not intend to do so, that such capitalization was a mistake and Should in substance be ignored. We do not agree. Nothing before us establishes any such alleged mistake, and petitioners’ position is based at best upon conjectural inferences that they seek to draw from the materials in the record. Moreover, the stipulation of facts reveals that as late as January 1,1961, petitioners’ general ledger shows these 1956 expenditures as a capital item subject to depreciation. In the circumstances we do not find that the $19,575 expenditures were capitalized by mistake. In any event, see Boone County Coal Corporation v. United States, 121 F. 2d 988, 991-992 (C.A. 4). (b) As to 1958-60, and also as to 1956, petitioners contend that the election to capitalize the cultural practices expenditures was revocable and that they are not bound by such election in the circumstances of this case. We hold otherwise. As long ago as 1924, a ruling was issued which bears directly upon this issue. I.T. 1952, III-l C.B. 139. That ruling dealt with a taxpayer who in the years 1918-20 had capitalized the expense of bringing his ranch property to a productive state pursuant to the option in the regulations and who thereafter wished “to file amended returns for [those] years, * * * claiming the expense as a deduction.” It was held: that inasmuch as the taxpayer exercised his option for the years 1918,1919, and 1920 by capitalizing the expenditures of bringing his ranch property to a productive state instead of deducting the amounts as business expenses, he is not now entitled to file claims for refund based on the fact that he now desires to treat the amounts as business expenses for those years. Petitioners’ attempt to distinguish this ruling on the ground that it dealt with claims for refund is not persuasive. Although it did mention claims for refund, we think that such reference was not intended to limit the scope of the ruling. The heart of the ruling was that the taxpayer once having made an election was thereafter precluded from changing it; and the reference to claims for refund (as well as amended returns) merely identified the means that a taxpayer might normally employ in his attempt to change the election. The fact, as shown in the stipulation, that petitioners sought to induce the revenue agent to allow these expenditures as deductions during the course of the audit if he made other adjustments is not in our opinion enough to render the ruling inapposite. We think that it is applicable and controlling. Nor do we accept as accurate the underlying basis for petitioners’ contention that since the original returns showed no taxable income the taxpayer really did not have any meaningful election when he chose to capitalize the disputed amounts rather than to take them as deductions. Even assuming that the point is otherwise valid, the underlying premise for this argument is not true. The taxpayer did indeed have a meaningful choice. Even if the returns disclosed no taxable income, the taxpayer had a very real choice. If he capitalized the expenditures he would have the benefit thereof in later years in the form of depreciation deductions spread over the life of the orchard. On the other hand, if he deducted the amounts in question they would add to his net operating loss and he could look forward to benefiting therefrom in following years in the form of carryovers. Thus, the taxpayer was not offered a blind choice. True, the third possibility of deducting these amounts from current taxable income was not a realistic one, but the other two alternatives remained, and the taxpayer did in fact have a meaningful choice as to whether to take the expenditures as deductions or to capitalize them. Neither party has directed our attention to any decisions squarely in point, but the dominant thrust of most of the cases that were referred to and discussed appears to be in accord with our conclusion. In Pacific National Co. v. Welch, 304 U.S. 191, affirming 91 F. 2d 590 (C.A. 9), the taxpayer had the option, under applicable statutes and regulations, to have gain from sales of its property computed either by the “deferred payment method” or by the “installment method.” It reported its income using one method and subsequently sought a refund based on a computation under the other method. Although recognizing that the taxpayer could have used either method originally, the Supreme Court held that once the election was made it was binding. In commenting upon one of the factors that led it to that conclusion the Court said (p. 194) : “Change from one method to the other, as petitioner seeks, would require recomputation and readjustment of tax liability for subsequent years and impose burdensome uncertainties upon the administration of the revenue laws.” Like considerations are applicable here. Although the returns were being audited when petitioners first requested the revenue agent to change the election, the matter was not as simple as petitioners now intimate. For not only would such change affect the computation for the particular year in which a deduction was sought, but as a result of the option to capitalize, the taxpayer had been taking depreciation deductions on the capitalized amounts in all subsequent years. Accordingly, a change in the method of treating the cultural practices expenditures would require not only appropriate adjustments in depreciation deductions for those subsequent years then being audited by the revenue agent, but also careful and continued inspection of the returns for any years beyond those that were then the subject of audit to make sure that they would be consistent with any change in the election. We think that this would impose just the kind of “burdensome uncertainties upon the administration of the revenue laws” that were referred to in Pacific National Co. v. Welch.
9268127-9226	MEMORANDUM DECISION CECELIA G. MORRIS, Bankruptcy Judge. On March 23, 2004, this Court heard oral argument on Debtor’s Motion Seeking Damages for Willful Violation of the Automatic Stay Pursuant to 11 U.S.C. § 362(h) (the “Motion”) brought against Sullivan County. Written opposition to Debtor’s Motion was filed by Marvin Newberg, Esq., Assistant County Attorney for the County of Sullivan on February 26, 2004; Mr. Newberg did not appear in Court for the March 23, 2004 hearing. For the reasons set forth below, upon consideration of the oral argument heard by the Court on March 23, 2004, together with the papers and legal arguments submitted by both parties, the Court holds that Sullivan County willfully violated the automatic stay when it failed to vacate the judgment signed by Judge Frank J. LaBuda on May 22, 2003. Although entry of the judgment on April 28, 2003 might have been a mere ministerial act that might not have violated the automatic stay, when the judge affixed his signature to the judgment on May 22, 2003, a full month after Debtors’ bankruptcy filing, he performed a judicial function which was a violation of the automatic stay. JURISDICTION The Court has jurisdiction under 28 U.S.C. Sections 1334(a) and 157(a) and the standing order of reference to bankruptcy judges dated July 10, 1098 signed by acting Chief Judge Robert J. Ward. This is a core proceeding under 28 U.S.C. Section 157(b)(2). PROCEDURAL POSTURE By bringing this Motion, Debtors are seeking redress for a stay violation that occurred in their previous Chapter 13 bankruptcy case. As actions taken in violation of the automatic stay are void, and not voidable, the Debtors do not have to reopen their prior Chapter 13 case to redress possible stay violations. See In re Prine, 222 B.R. 610, 612 (Bankr.N.D.Iowa 1997); D’Alfonso v. A.R.E.I. Invest. Corp (In re D’Alfonso), 211 B.R. 508, 513 (Bankr.E.D.Pa.1997) (automatic stay that arises in prior or different cases can be enforced by a debtor in a subsequent case); In re Schwartz, 954 F.2d 569, 571-2 (9th Cir.1992) (actions taken in violation of the stay are voidable and debtors need take no affirmative action to challenge violations, which can be enforced in a subsequent bankruptcy filing). It is not the debtor’s responsibility to take action that ensures that she receives the protection of the automatic stay; rather the creditor bears the burden of seeking relief from the automatic stay before taking post petition collection actions. This Court will not require the Debtors to reopen their prior case, which was also filed in this Court, to seek redress for a stay violation in that earlier case, when the Debtors are currently before the Court in a subsequent filing. To do so would place an additional burden on the Debtors. See Schwartz, supra, at 572. BACKGROUND FACTS The facts set forth in Debtors’ Motion are straightforward. Debtors filed their first Chapter 13 petition on April 22, 2003. Sullivan County was listed as a creditor on Debtors’ Schedule E, and thus received notice of Debtors’ filing. Debtors state that in April, 2003, the County moved for summary judgment seeking to dismiss the Debtors’ Answer in a tax foreclosure proceeding pending against the Debtors. On April 28, 2003, six days after the filing of the Debtor’s first bankruptcy case, a judgment awarding possession of the subject premises to Sullivan County was entered by the Sullivan County Clerk. Inexplicably, the judgment entered on April 28, 2003 was signed by Judge LaBuda on May 22, 2003, almost a month after its “entry” and during the pendency of Debtors first bankruptcy filing. Generally, if the only remaining barrier to enforceability of a judgment is entry by the court clerk, the performance of this ministerial act will not violate the stay. See Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522 (2d Cir.1994). On the other hand, all judicial functions necessary to make a judgment valid are stayed by 11 U.S.C. § 362(a)(1). See In re Capgro Leasing Assoc., 169 B.R. 305, 316 (Bankr.E.D.N.Y.1994) (judicial function is complete when state court judge signs the order directing the clerk of the court to enter a judgment against a debt- or). The Debtors’ first filing was dismissed on October 8, 2003. After the dismissal, on October 21, 2003, the April 28, 2003 judgment and a deed was filed with the Sullivan County Clerk, and Debtor’s property was transferred to the County of Sullivan. Debtors’ current counsel filed the instant case on October 24, 2003. Debtors attempted to negotiate the return of the property subsequent to the second bankruptcy filing, to no avail. Debtors allege that Sullivan County’s actions have damaged them significantly: their Chapter 13 plan will be funded by rent from one of Debtors’ parcels seized by Sullivan County; the tenant has refused payment since the transfer and Debtors have been threatened with a criminal trespass action if they enter onto the subject property. Additionally, Debtors allege that they have incurred $1,200 in attorney’s fees in connection with the bringing of the instant motion. Sullivan County has filed Opposition to Debtors’ motion, advancing that no willful violation of the stay has been shown. Sullivan County points out in their opposition that the motion for summary judgment filed in the tax foreclosure proceeding, which sought to strike the Debtors’ answer, was brought prior to Debtors’ Chapter 13 filing. The County also maintains that as it took no steps to enforce its interest until after the case was dismissed on or about October 21, 2004, it did not violate the automatic stay, and asks the Court to deny the Debtors’ Motion. In other words, Sullivan County argues that the two acts that did occur during the pendency of Debtors’ first bankruptcy case did not constitute a willful violation of the automatic stay. DISCUSSION 11 U.S.C. § 362(a)(1) stays the continuation of any judicial proceeding against the debtor that was commenced prior to the filing of a case under Title 11. The automatic stay is a vital, fundamental protection afforded by the bankruptcy laws. It is designed to give debtors a respite from collection efforts so that they may reevaluate their financial circumstances. In other words, the automatic stay provides a “breathing spell” so that debtors may assess their economic situation without the distraction of creditors seeking payment in full at a time when they do not have the financial means to satisfy all their obligations at once. The reprieve offered by the automatic stay is essential to the success of the bankruptcy case, especially in a Chapter 13 “consumer reorganization” and is effective immediately upon the filing of a bankruptcy petition, and extends to all non-bankruptcy courts as well as to creditors. See In re Best Payphones, 279 B.R. 92, 97 (Bankr.S.D.N.Y.2002)(Bernstein, C.J.). Sullivan County does not dispute that it received notice of Debtors’ April 22, 2003 bankruptcy filing. Indeed, Sullivan County was listed as a creditor on Debtors’ April 22, 2003 petition. In the Second Circuit, “if a party charged with violating the stay knows that the stay is in effect, any deliberate act taken in violation of the stay justifies an award of damages.” Ford Motor Credit Co. v. Florio (In re Florio), 229 B.R. 606, 608 (S.D.N.Y.1999) (Parker, J.). Damages for willful violation of the automatic stay will lie if “a person takes a deliberate act.. .in violation of a stay, which the violator knows to be in existence... [s]ueh an act need not be performed with specific intent to violate the stay. Rather, so long as the violator possessed general intent in taking actions which have the effect of violating the automatic stay the intent required by § 362(h) is satisfied.” See Sucre v. MIC Leasing Corp. (In re Sucre), 226 B.R. 340, 349 (Bankr.S.D.N.Y.1998) (Gonzalez, J.)(emphasis supplied). So long as the creditor intended to take the action that constituted a stay violation, its intention or lack thereof to violate the stay is irrelevant. Furthermore, a creditor has an affirmative duty to take steps to vacate any judgments signed and entered after the filing of a bankruptcy petition in violation of the automatic stay. See Sucre, supra, at 348 (Upon learning of a bankruptcy filing, a creditor has an affirmative duty to return the debtor to a status quo position as of the time of the filing of the petition). See also In re Patti, 2001 WL 1188218 at *7 (Bankr.E.D.Pa. Sept. 14, 2001), in which a creditor was held to have willfully violated the stay even though the action that constituted the violation was taken by the New York State Court and not the creditor, because the creditor had an affirmative duty to vacate the New York judgment signed and entered after the filing of a bankruptcy petition, and failed to do so. Sullivan County maintains that it did not take any action to enforce its judgment, which the County does not dispute was entered during the pendency of the Debtors’ first bankruptcy filing. On the other hand, Sullivan County did not provide this Court with any evidence that it took action to vacate the judgment signed and entered in violation of the stay, despite having an affirmative duty to do so.
5692494-6620	OPINION OF THE COURT PERRY, Judge: The appellant was convicted by a general court-martial of conspiracy to commit larceny of stereo equipment belonging to another soldier and of the larceny of that equipment. At trial, the offenses were regarded as separately punishable, but the appellant now contends that past precedents sanctioning separate punishment for conspiracy and for the substantive offense which is the object of the conspiracy should be overturned as unjust. See United States v. Dickson, 49 C.M.R. 614 (ACMR 1974). We may not do so. In assessing punishment for different criminal acts committed in an integrated incident, the “primary concern” is to avoid “punishing an accused twice for what is essentially one offense.” United States v. Mirault, 18 U.S.C.M.A. 321, 323, 40 C.M.R. 33, 35 (1969). However, the problem involves such a complex of constitutional, statutory, and judicial policy ramifications that no single judicial approach to it has received universal approbation. United States v. Meyer, 21 U.S.C.M.A. 310, 45 C.M.R. 84 (1972); United States v. Burney, 21 U.S.C.M.A. 71, 44 C.M.R. 125 (1971). Nonetheless, there is general agreement that when the legislature directs that one or more offenses in the total criminal endeavor are separately punishable, its mandate, if otherwise constitutional, is controlling. See United States v. Smith, 1 M.J. 260, 262 (1976) (Fletcher, Chief Judge, concurring); United States v. Meyer, supra, 21 U.S.C.M.A. at 312, 45 C.M.R. at 86 (Darden, Chief Judge, concurring). Thus, as neither party to these proceedings has questioned the constitutionality of separately punishing a conspiracy to commit a substantive offense and the substantive offense itself, the appropriate inquiry is whether the Congress has indicated its intent to separately punish these crimes, for this Court otherwise has neither the power nor the inclination to ignore that intent if manifest. At common law, the substantive offense, if a felony, merged into the conspiracy to commit that offense. However, as the United States Supreme Court noted in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), that rule has little vitality in this country. The Supreme Court in Pinkerton, in an opinion by Justice Douglas, held that conspiracy and the substantive offense are entirely separate and are separately punishable. That same position is maintained by the High Court even in its most recent decisions. Iannelli v. United States, 420 U.S. 770, 777-79, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); United States v. Feola, 420 U.S. 671, 693-94, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). As to Congressional intent, the Supreme Court stated in Iannelli, supra 420 U.S. at 779, 95 S.Ct. at 1290: The historical difference between the conspiracy and its end has led this Court consistently to attribute to Congress “a tacit purpose — in the absence of any inconsistent expression — to maintain a long-established distinction between offenses essentially different; in the criminal law is not easily overestimated.” Ibid.; Callanan [Callanan v. U. S., 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961)], at 594. Similarly, the law of this Court from the beginning of its existence has been that conspiracy and the offense to which the accused is alleged to have conspired are separate offenses and may be separately punished. United States v. Yarborough, 1 U.S.C.M.A. 678, 5 C.M.R. 106 (1952). Hence, it has been long and well settled both in this Court and in the Supreme Court that the military conspiracy offense and its civilian federal counterpart are punishable apart from the substantive crime. It is axiomatic that the Congress is presumed to notice how its statutes are interpreted, especially by courts of last resort, and is presumed to be in agreement therewith when it then proceeds to reenact a given piece of legislation in identical form. Therefore, as was stated by the Court in Iannelli v. United States, supra, there exists in Congress “ ‘a tacit purpose — in the absence of any inconsistent expression — to maintain a long established’ ” principle in our law that a substantive offense and a conspiracy to commit that offense may be, as the Manual puts it, separately “charged, tried, and punished.” The decision of the United States Army Court of Military Review is affirmed. Chief Judge FLETCHER concurs. . Articles 81 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 921, respectively. Additionally, the appellant was charged with housebreaking with intent to commit larceny, in violation of Article 130, UCMJ, 10 U.S.C. § 930, but he was acquitted of this activity. As punishment for the two crimes of which the appellant was convicted, he was sentenced to a bad-conduct discharge, confinement at hard labor for 2 years, and forfeiture of $100 pay per month for 24 months, which sentence, along with the findings, were approved at all levels below. . The conspiracy statute involved in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), was 18 U.S.C. § 371, which, as the parties agree, was the predicate for Article 81 of the Uniform Code. . The reason for consistently holding that conspiracies can be made separately punishable from the substantive crime is that there is an increased danger concentrated in a confederation of law violators. As the Supreme Court phrased it in Callanan v. United States, 364 U.S. 587, 593-94, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961): This settled principle derives from the reason of things in dealing with socially reprehensible conduct: collective criminal agreement— partnership in crime — presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from the path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. Hence, the formation of conspiratorial groups is deemed socially harmful because of the added danger and, thus, is made specifically punishable for this reason. That rationale remains persuasive to the courts. See also Iannelli v. United States, 420 U.S. 770, 777-79, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).
3444055-6157	OPINION PER CURIAM. Appellant, Ronnie Johnson, appeals the District Court’s order dismissing his pro se First Amended and Supplemental Complaint (“amended complaint”). Upon consideration of the record, we conclude that the District Court properly determined that Johnson’s claims were subject to dismissal under Fed.R.Civ.P. 12(b)(6). Therefore, because the appeal presents no arguable issues of fact or law, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B) for essentially the same reasons set forth in the thorough Memorandum Opinion of the District Court. In September 2010, Johnson initiated a civil rights action pursuant to 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Pennsylvania, alleging that various employees of the Pennsylvania Department of Corrections (“DOC”) violated his federal and state rights. More specifically, Johnson alleged that DOC defendants’ decision to house him in the Special Management Unit (“SMU”) at the State Correctional Institution at Graterford (“SCI-Graterford”) violated his due process rights, the Equal Protection Clause of the Fourteenth Amendment, the Cruel and Unusual Punishment Clause of the Eighth Amendment, and the Pennsylvania constitution and state statutes. Named as defendants in both their individual and official capacities were the following DOC employees from SCI-Graterford: Superintendent Michael Wenerowicz; Deputy Superintendent for Facilities Management Michael Lorenzo; Correctional Classification Program Manager Gary Olinger; and Lieutenant Dan White from the J Block of the SMU. Johnson, who is currently incarcerated at SCI-Fayette, asserted that the DOC defendants first violated his due process rights on May 26, 2010, when defendants White and Olinger placed him in the SMU at Graterford after a Program Review Committee (“PRC”) hearing without having indicated a proper reason for their decision on a form called a DC141, Part IV. Johnson appealed the PRC’s decision claiming a procedural violation as well as discrimination on the part of defendant White, who allegedly has a bias against him. Citing to DOC policies DC-ADM 801 and 802, Superintendent Wenerowicz denied Johnson’s appeal of that decision on June 7, 2010. Johnson’s subsequent appeal to Chief Hearing Examiner Robert B. McIntyre was likewise denied on June 16, 2010. A second due process violation is alleged to have occurred on August 18, 2010, when defendants Lorenzo and Olinger decided at Johnson’s PRC hearing that he should remain in the SMU, but failed to provide him with a DC141, Part IV. This deficiency apparently caused Wenerowicz to grant Johnson another PCR hearing. That hearing took place on September 17, 2010, before Major Francis Fields and defendants White and Olinger. Johnson asserts that the DOC defendants once again failed to “establish a substantiated reason” for their decision to continue his placement in the SMU. Johnson was transferred to SCI-Fayette on October 12, 2010, and claims to have still not received a DC141, Part IV, regarding the PRC’s decision to keep him housed in the SMU. Johnson sought injunctive, declaratory and compensatory relief, as well as punitive damages. The DOC defendants responded to the complaint with a motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6). In a Memorandum Opinion and Order entered on April 13, 2011, the District Court granted defendants’ Rule 12(b)(6) motion and dismissed the amended complaint. This timely appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and review de novo the District Court’s grant of a Rule 12(b)(6) motion. See Lora-Pena v. 529 F.3d 503, 505 (3d Cir.2008). We accept as true all of the allegations contained in the complaint and draw reasonable inferences in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 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) (internal quotations omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (complainant must “provide the grounds of his entitlement to relief [with] more than labels and conclusions .... ”). Having carefully reviewed the record, we agree with the District Court’s disposition of Johnson’s claims and do not hesitate to conclude that the District Court properly dismissed his amended complaint. As the District Court correctly determined, Johnson’s requests for injunctive and declaratory relief against the named DOC defendants were rendered moot by his transfer to SCI-Fayette, especially given the absence of any indication that he will once again be confined at SCI-Grater-ford. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir.2003) (citing Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975), and Abdul-Akbar v. Watson, 4 F.3d 195, 206 (3d Cir.1993)) (“An inmate’s transfer from the facility complained of generally moots the equitable and declaratory claims.”). We further agree with the District Court’s conclusion that the Eleventh Amendment affords the DOC defendants protection from suit in their official capacities. Under the Eleventh Amendment, states and state agencies are immune from suit for monetary damages in federal court. See, e.g., P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). Because the Pennsylvania DOC is a part of the executive department of the Commonwealth of Pennsylvania, its employees share in the Commonwealth’s Eleventh Amendment immunity to the extent that they were sued in their official capacities. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); see also Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir.2000). As we have previously noted, the Commonwealth of Pennsylvania has not waived its rights under the Eleventh Amendment. See Lavia, 224 F.3d at 195; 42 Pa. Cons.Stat. Ann. 8521(b).
9231433-15343	Ruling on Motion to Dismiss [Doc. # 9] ARTERTON, District Judge. For the reasons set forth below, defendant Japanese Educational Institute of New York’s (“JEI”) motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(l)/(6) [Doc. # 9] is GRANTED. 1. Factual Background On approximately April 29, 2003, Kotec received a right to sue letter (or “release”) from the Connecticut Commission on Human Rights and Opportunities (“CHRO”), which provided in pertinent part, The complainant must bring an action in Superior Court within ninety (90) days of receipt of this release and within two (2) years of the date of filing the complaint with the Commission. Aff. of Mishkin in Opp’n [Doe. # 14] Ex. B. On May 14, 2003, JEI’s counsel, Deborah S. Freeman wrote Kotec’s counsel, Scott M. Mishkin, asking that a copy of any filing in federal district court be sent to her and representing that she would accept service on behalf of JEI. On June 11, 2003, Mishkin telephoned Freeman to inform her that Kotec’s complaint would be filed in federal district court in Connecticut and that he would be seeking admission pro hac vice. Freeman “instructed [Mishkin] to serve her with the complaint once ‘everything’ had been filed.” Aff. of Mishkin in Opp’n [Doc. # 14] ¶ 4. Before Mishkin could represent Kotec before this Court, a member of the Bar of this Court had to sponsor him by written motion. See D. Conn. L. Civ. R. 83.1(d)(1). Accordingly, Mishkin asked David M. Wallman to file the motion for admission pro hac vice on his behalf and, to that end, forwarded to Wallman on July 1, 2003 copies of Kotec’s complaint and an original affidavit in support of the motion for admission pro hac vice as required under D. Conn. L. Civ. R. 83.1(d)(1). On July 8, 2003, Kotec filed the present lawsuit, alleging violations of Title VII of the Civil Rights Act of 1964 and the Connecticut Fair Employment Practices Act (“CFE-PA”), and breach of contract. On July 11, 2003, Wallman notified Mishkin by letter that the complaint had been filed and stated “I will get to the pro hac vice motion shortly.” Aff. of Mishkin in Opp’n [Doc. # 14] ¶ 8, Ex. C. On July 30, 2003, Freeman wrote Mishkin and Wallman, referencing her letter of May 14, 2003 and a telephone conversation with Wallman on July 16, 2003, in both of which Freeman had requested a copy of Kotec’s complaint, stating that she had yet to receive a copy of the complaint and had no information to indicate that JEI had been served, and asking for a copy of the complaint to be sent to her so that she could review it. From July 1, 2003 to October 8, 2003, Mishkin contacted Wallman several times to inquire on the status of the motion for Mishkin’s admission pro hac vice. On October 8, 2003, Wallman filed the motion on Mishkin’s behalf. On October 10, 2003, the motion was granted. On October 22, 2003, Freeman was served with a copy of Kotec’s complaint. II. Discussion JEI moves to dismiss Kotec’s CFEPA claims as time-barred pursuant to Conn. Gen.Stat. § 46a-101(e), which requires “[a]ny action brought by the complainant in accordance with section 46a-100 shall be brought within ninety days of the receipt of the release from the commission.” JEI argues that, because Connecticut law considers an action “brought” only upon service of complaint and summons, Kotec’s claim is untimely because well over ninety days elapsed between the date Kotec received his right to sue letter from the CHRO, approximately April 29, 2003, and the date the complaint and summons were served on Freeman, October 22, 2003. Kotec principally opposes on the grounds that Freeman’s “inducement and trickery led directly to plaintiff not commencing his state law based CFEPA claims until after the ninety (90) day statute of limitations expired,” Opp’n [Doc. # 13] at 5, and therefore this case warrants the extraordinary remedy of “equitable tolling.” Alternatively, although Kotec concedes that “[a] federal court sitting in either diversity or supplemental jurisdiction looks to state law, and not the federal rules, for purposes of determining when a plaintiff commences an action,” id. at 8, he suggests without citation to authority that the close legal connection between his Title VII claim and his CFEPA claim marshals in favor of permitting the commencement rule of Fed. R.Civ.P. 3 — filing of complaint — to govern. A. Commencement of Suit It is well settled that in Connecticut (unless otherwise specified by the legislature) a case is considered “brought” for purposes of a statute of limitations on the date of service of the complaint upon the defendant and that, in a federal diversity action, such state rules control and not Fed.R.Civ.P. 3. See e.g., Converse v. General Motors Corp., 893 F.2d 513, 515-16 (2d Cir.1990). Courts have also applied such state rules in the context of state law claims brought under the district court’s supplemental jurisdiction, see e.g., Appletree Square I, Ltd. P’ship v. W.R. Grace & Co., 29 F.3d 1283, 1286 (8th Cir.1994); Katsaros v. Serafino, No. Civ. 3:00cv288, 2001 WL 789322, at *2-3 (D.Conn. Feb.28, 2001), as consistent with the Supreme Court’s reasoning in Walker v. Armco Steel Corp., 446 U.S. 740, 753, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980): There is simply no reason why, in the absence of a controlling federal rule, an action based on state law which con-cededly would be barred in the state courts by the state statute of limitations should proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants. The Court does not consider Kotec’s argument — that the overlap in the essential elements of his CFEPA and Title VII claims directs that Fed.R.Civ.P. 3 should control Connecticut’s statute of limitations with respect to the CFEPA claim — to be a principled reason to depart from the settled rule for diversity cases, particularly as Kotec cites no authority so holding or supporting such reasoning. B. Equitable Considerations JEI asserts that the ninety day statutory limitation on Kotec’s CFEPA claim is jurisdictional and not subject to equitable tolling, and, in the alternative, that the facts set forth by Kotec are “woefully inadequate to warrant this Court’s exercise of its extraordinary power of equitable relief.” Reply [Doc. # 16] at 6. The Court agrees with the latter and therefore does not reach the former argument. Mishkin claims that Freeman’s statement on June 11, 2003 that Mishkin serve the complaint on her after Kotec’s complaint and Mishkin’s motion for admission pro hac vice were filed constituted “trickery” that “led directly” to Kotec’s complaint not being served in a timely manner and therefore makes JEI’s present statute of limitations challenge “unconscionable.” See Opp’n [Doc. # 13] at 5, 6. As such, Kotec’s claim is one of equitable estoppel not equitable tolling, “invoked in cases where the plaintiff knew of the existence of his cause of action but the defendant’s conduct caused him to delay in bringing his lawsuit,” Cerbone v. Int’l Ladies’ Garment Workers’ Union, 768 F.2d 45, 50 (2d Cir.1985), for example, “where the defendant misrepresented the length of the limitations period or in some way lulled the plaintiff into believing that it was not necessary for him to commence litigation.” Id.; see also Kavowras v. New York Times Co., 328 F.3d 50, 56 (2d Cir.2003)(“... an estoppel arises if (1) the defendant made a definite misrepresentation of fact, and had reason to believe that the plaintiff would rely on it; and (ii) the plaintiff reasonably relied on that misrepresentation to his detriment.”)(quotations omitted). By contrast, “equitable tolling is only appropriate in rare and exceptional circumstances,” Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir.2003)(quotation omitted), and “is generally considered appropriate where the plaintiff actively pursued judicial remedies but filed a defective pleading during the specified time period, ... where plaintiff was unaware of his or her cause of action due to misleading conduct of the defendant, ... or where a plaintiffs medical condition or mental impairment prevented her from proceeding in a timely fashion.” Id. (quotations and citations omitted). The first and third categories, defective pleading and incapacity, are not relevant to Kotec’s opposition, and the second focuses on unawareness of a cause of action, see also Pearl v. City of Long Beach, 296 F.3d 76, 82 (2d Cir.2002); Dillman v. Combustion Eng’g, Inc., 784 F.2d 57, 60 (2d Cir.1986), which obviously does not apply as Kotec filed a complaint in federal court alleging the CFEPA claims at issue here. As Judge Newman has observed, however, there is among federal circuit courts considerable variation in usage of the terms “equitable tolling” and “equitable estoppel.” See Pearl, 296 F.3d at 81-82. Indeed, the Supreme Court has referred to classic examples of equitable estoppel as equitable tolling. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)(stat-ing “We have allowed equitable tolling in situations ... where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass,” and citing as support Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959)(tolling justified where defendant or agents told plaintiff he had seven years within which to bring an action against defendant and in reliance thereon plaintiff withheld suit)). While the absence of rigid formalism is not surprising given the equitable nature of both claims, Kotec’s claim fits within the Second Circuit’s doctrine of equitable es-toppel and not equitable tolling and therefore the Court will apply the former. The maxim underlying equitable estoppel is that no litigant “may take advantage of his own wrong,” Glus, 359 U.S. at 232, 79 S.Ct. 760, so that “where one party has by his representations or his conduct induced the other party to a transaction to give him an advantage which it would be against equity and good conscience for him to assert, he would not in a court of justice be permitted to avail himself of that advantage,” id. at 234, 79 S.Ct. 760. Fact patterns supporting successful assertions of an equitable estoppel have involved a defendant’s or his agents’ affirmative misrepresentations as to the length of the limitations period, see id. at 232 n. 2, 79 S.Ct. 760, and defendant’s attorney’s incorrect and repeated insistence that plaintiffs cause of action was subject to the automatic stay provision of bankruptcy law and therefore could not be prosecuted, see Bennett v. United States Lines, Inc., 64 F.3d 62, 65-66 (2d Cir.1995). Equitable estoppel principles have not saved untimely actions where induced delay did not justify the extent of plaintiffs subsequent slumber, see Kavowras, 328 F.3d at 56-57 (any inducement of delay in the third month of a six month statute of limitations did not justify plaintiffs ensuing sixteen month delay in filing suit), or where communications could not properly be construed as a settlement offer, see Cerbone, 768 F.2d at 50 (offers of minor benefits could not have been mistaken by plaintiff and his attorney as settlement offers evincing intent to settle and lack of necessity to proceed with suit); see also Dillman, 784 F.2d at 60-61. The facts alleged by Kotec do not approach demonstrating that Freeman lulled Mishkin into believing it was not necessary to serve Kotec’s complaint until October 22, 2003, or much less that Mishkin acted reasonably in reliance thereon. The right to sue letter Kotec received from the CHRO on approximately April 29, 2003 unambiguously and explicitly stated that any action had to be brought within ninety days of that date, or approximately July 28, 2003. On May 14, 2003, Freeman’s letter requested that Mishkin serve on her a copy of any filing in the district court. On June 11, in response to Mishkin advising that Kotec’s complaint would be filed in federal court in Connecticut w'here he would seek admission pro hac vice, Freeman told Mishkin to file Kotec’s complaint and motion for admission and then serve her. Mishkin asks this Court to find in Freeman’s statement a misrepresentation responsible for causing Mishkin reasonably to believe that Freeman would not raise a statute of limitations defense as a result of the subsequent lapse of 133 days before Kotec’s complaint was served. This the Court cannot do. Freeman’s statement is silent about applicable limitations periods, and, at the time of her representation, the applicable period was only half over. Nothing in Freeman’s statement can be taken as a license for delay beyond the 90 day limitations period. There is nothing complicated or time-consuming about filing a motion for admission pro hac vice and it is routinely promptly granted by the Clerk where the requirements of D. Conn. L. Civ. R. 83.1(d)l & 2 are satisfied. Mish-kin’s motion was granted by margin endorsement two days after filing. See id. Furthermore, the local rule explicitly directs that motions for admission pro hac vice “shall be made promptly...” and can be denied if granting the motion would require modification of deadlines or certain scheduling orders. D. Conn. L. Civ. R. 83.1(d)l. Mishkin does not claim that he was unaware of the local requirements or process. Rather, he informs the Court that he forwarded a copy of the requisite affidavit dated and signed June 24, 2003 to local counsel Wallman together with a copy of Kotec’s complaint on July 1, 2003. Against the backdrop of the simple procedures for filing pro hac vice motions, Freeman’s statement on day forty-three of the limitations period, similar to her letter to Mishkin on day sixteen, merely reiterates her amenability to accept service of Ko-tec’s complaint. Mishkin satisfied the requirements for his part within three weeks of speaking with Freeman and well within the ninety day period; and, in an effort to demonstrate his own reasonable diligence, Mishkin stresses that he contacted Wall-man several times beginning twenty-seven days prior to the expiration of the limitations period about the status of the pro hac vice motion. In sum, plaintiffs facts do not demonstrate any misrepresentation or one reasonably relied upon or any other basis for invoking an equitable estoppel. III. Conclusion As set forth above, JEI’s motion [Doc. # 9] is GRANTED. IT IS SO ORDERED. . The standards for either rule, which are "substantively [although not procedurally] identical,” Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.2003), are well established: “[T]he court must accept all factual allegations in the complaint as true and draw infer- enees from those allegations in the light most favorable to the plaintiff.... The court may not dismiss a complaint unless it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief.” Jaghory v. New York State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997)(quota-tions and citations omitted). Possible practical consequences flowing from use of either 12(b)(1) or 12(b)(6), for example, the effect on supplemental jurisdiction, see Lerner, 318 F.3d at 128-30, are not relevant here.
6106602-17077	DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT ROBERT JOHN HALL, Bankruptcy Judge. PRELIMINARY STATEMENT This matter comes before the Court upon a motion for summary judgment (“Motion”) by plaintiff, Bethpage Federal Credit Union (“Plaintiff’), determining that an alleged debt is owed by Joseph B. Mickel (“Debtor”) and that the debt is non-dischargeable. The Court has jurisdiction over this case pursuant to sections 157(a), 157(b)(1) and 1334(a) of title 28, United States Code (“title 28”) and the order of referral of matters to the bankruptcy judges by the United States District Court for the Eastern District New York (Weinstein, C.J., 1986). This is a core proceeding pursuant to section 157(b)(2)(B) and (I) of title 28. For all the reasons set forth below, the Court holds that Plaintiffs Motion for summary judgment is GRANTED IN PART. Plaintiff is awarded judgment that Debtor owes and is responsible for a debt in the amount of $9,968.40 incurred through Debt- or’s use of a credit card issued by Plaintiff; Plaintiff has until April 8, 1994, to settle a proposed judgment upon Debtor setting foi’th this amount and, in addition, the interest, costs and attorneys’ fees to which Plaintiff is entitled pursuant to the written agreement between Plaintiff and Debtor. Summary Judgment is DENIED as to the issues of fact with respect to that portion of Plaintiffs Motion in which it seeks judgment determining that the debt owed, it is non-dis-chargeable. The outstanding issues of fact could conceivably be proven by further pleadings, averting an unnecessary trial; accordingly, Plaintiff may move anew by filing and serving a motion on or before April 8, 1994, which motion shall be made returnable for oral argument before the Court on April 26, 1994. Should Plaintiff NOT move anew, both parties are DIRECTED to appear before the Court for a status hearing at 9:30 a.m. on April 17, 1994, The dispute in this case concerns Debtor’s alleged use of a credit card issued by Plaintiff, Debtor’s claim that the card was stolen or lost, and the dischargeability of the debts arising from use of the card. RELEVANT FACTS In February of 1990, Debtor applied for and received a $1,000 line of credit and an accompanying Visa credit card by Plaintiff. Debtor’s wife was also given a credit card in April of 1990 with which to access this same line of credit. As of June of the same year, the outstanding balance reflected upon Plaintiffs statement was $251. The balance upon the statement for the period ending July 16,1990 was $1,013.52; for both months, Debtor tendered the minimum monthly payment of $10. Plaintiffs statement for the period ending August 15, 1990 indicated a balance owed- of approximately $2,400, reflecting use of the credit line above its $1,000 limit. Approximately seventeen purchases appear upon this statement, all in Egypt. On August 14, 1990, Plaintiff terminated Debtor’s credit line due to use of the Visa card in excess of the authorized credit limit. Because Debtor was using the Visa card in Egypt, Plaintiff states that this termination did not take effect and the card remained operable for “some time”. Affidavit of Frank A. Juzwiak, dated August 17, 1992, ¶ 11. Debtor’s card was then recovered by Bank of Credit and Commerce International on August 28, 1990; Debtor’s wife surrendered her Visa card on October 10, 1990. The statement for the period ending September 14, 1990 is six pages, enumerates approximately seventy purchases made in Egypt through August 28, 1990, and reports that the balance due was $8,909.54. Debtor tendered no payments in response to the statements for August through November. By complaint dated September 14, 1990, Plaintiff instituted an action for collection of the debt arising from use of the Visa card in the District Court for the County of Nassau, State of New York (“State Court Action”). In Debtor’s verified answer to the State Court Action, dated October 23, 1990 (“State Court Answer”), Debtor admits default in payments to Plaintiff, and does not deny or dispute the debt alleged to be owed, nor does Debtor speak of loss or theft of the Visa card. Debtor additionally asserted in his State Court Answer under penalty of perjury, presumably as an affirmative defense, that he had “filed for bankruptcy when unable to make [his] payments”. Debtor’s State Court Answer, dated October 23, 1990. It was not, in fact, until five weeks later that Debtor commenced a bankruptcy case on November 30, 1990, by the filing of a voluntary petition for relief under chapter 7 of title 11, United States Code (“Bankruptcy Code”). In connection with his November 30, 1992 bankruptcy petition, Debtor retained an attorney who provided financial counseling, reviewed ■ suits pending against Debtor, and obtained the information required for preparation of the necessary bankruptcy schedules. Statement of David S. Zeidman, Esq., pursuant to Rule 10(f) of the Local Rules of the United States Bankruptcy Court for the Eastern District of New York for Practice Under the Bankruptcy Code; see also Transcript of Plaintiffs Deposition of Debtor, dated February 27, 1992, at 25-26. On schedule A-3 of Debtor’s bankruptcy petition, Debtor listed Plaintiff as a creditor holding an unsecured non-priority claim against Debtor in the amount of $9,300. Neither Debtor nor his attorney elected to designate Plaintiffs claim as being contingent, unliquidated or disputed. Debtor’s petition also includes a statement of financial affairs in which he declares that he had suffered no losses from theft during the year immediately preceding the filing of his bankruptcy petition. The veracity and accuracy of the contents of the petition, the schedules and Debt- or’s statement of financial affairs were all affirmed to by Debtor, by signature made under penalty of perjury. By complaint dated January 24, 1991, Plaintiff commenced the above-captioned adversary proceeding (“Adversary Proceeding”) pursuant to which it seeks judgment determining that Debtor is obligated to satisfy Plaintiff for use of the credit line, and that this obligation is non-dischargeable. In Debtor’s answer to the Adversary Proceeding complaint (“Debtor’s Answer”), he for the first time disputes activity contained upon the credit card statements; he writes: “... I could not have possibly incurred $9,968.40 worth of charges. I do not believe that most of the charges are mine.” Debtor’s Answer, dated February 12, 1991, at 2. Again, though, Debtor makes no mention of loss or theft of the Visa card. On June 11, 1992, Plaintiff served Debtor with a request for admissions (“Admission Request”). Annexed to the Admission Request as exhibits are copies of approximately 60 merchant sales slips, purportedly signed by Debtor, specifying retail purchases made with the Visa card. Approximately five sales slip copies showed uses of Debtor’s wife’s Visa card, and which purported to contain her signature. Plaintiff sought in the Admission Request to have Debtor admit or deny the authenticity of all the signatures appearing on each of the charge slips. It was not until November 3, 1992 that Debtor responded to the Admission Request in two documents filed with the Court. One document response to the Admission Request, entitled “Opposition of Facts” will not be dealt with by the Court as it merely attacks Plaintiffs attorney and does not substantively address any of the issues at bar. See Debtor’s Opposition of Facts in Response to Plaintiffs Admission Request, dated October 29, 1992. Another document filed by Debtor is titled “Admission of Facts Answer and Motion” (“Discovery Response”). In Debtor’s Discovery Response, he states that he reported the loss of his Visa credit card to Plaintiffs branch in Egypt, but does not state how or upon what date he did so. The Discovery Response marks the first instance in which Debtor makes reference to loss or theft of the Visa card. Debtor maintains that he lost the credit card on or about August 7, 1990 and does not know where the card was from then until it was recovered by Plaintiff (on August 28, 1990). Debtor’s Admission of Facts in Response to Plaintiffs Admission Request, dated October 29, 1992, at 2-3. Debtor did not insist (or even contend) that his signatures contained in the 60 photocopies of the merchant sales slips annexed to Plaintiffs Admission Request, were forged, nor did he dispute their authenticity in any way. Debtor only writes, “I respectfully request the Court not to admit to (sic) evidence the sales slips in question even though I did not answer in a timely fashion.” Id. at 3. On February 27,1992, Debtor was deposed by Plaintiff. During this deposition, Debtor attempts to elaborate on his previous claim that the charges were not his. The pertinent portion of the deposition provides: Q. While you were in Egypt, did you ever call [Plaintiff, other than to obtain an increase in your credit line,] again for any reason? A. No. Q. While you were in Egypt, did you ever write to [Plaintiff] about anything? A. Not as far as I remember, no. Q. While you were in Egypt, did you have your credit card? A. Yes. Q. When was that? A. Around the first or second week in August. First or second. I don’t remember exactly. I lost all my credit cards. I lost everything actually. Q. Where was it that you lost your wallet? A. I don’t remember. What city or what places your are talking about? Q. When did you first realize it was missing? A. When I went home. Q. From? A. Outside. I don’t remember. I have too many places. When I get back home I realize I don’t have my wallet. Q. What, if anything did you do to notify [Plaintiff] that your wallet or any of your other creditors that your wallet had been lost? A. I call [Plaintiff] because at the bank they handle all Visa credit cards. I give a call to let them know about credit if anybody — I don’t give approval — that I lost my wallet and I remember two or three weeks later there was like a week in August — I remember before I came here — they told me back — actually sent somebody home— they told me we find your credit card and we mailed them to you in the United States because we tried to get in touch with you. We couldn’t get so we mailed to the United States. Transcript of Plaintiffs Deposition of Debtor, dated February 27, 1992, at 20-21. As to whether Debtor’s bankruptcy counsel (who aided in the preparation of Debtor’s petition) knew of Debtor’s dispute of the balance Plaintiff alleged to be owed for use of the credit line, Debtor stated that the attorney was informed of the dispute: Q. Did there come a time when you retained an attorney to file a bankruptcy petition for you? A. Yes. Q. Was that attorney David Zeidman? A. Last name. Q. I show you a certain document and ask if this is a copy of the bankruptcy petition? A. ... Yes. Q. ... Did you tell Mr. Zeidman that you didn’t owe [Plaintiff] what [Plaintiff] said you owed them? A. Yes. Id. at 25-6. Having set forth in detail the relevant facts, we now address whether the Motion should be granted and Plaintiff awarded summary judgment determining that a debt of $9,968.40 is owed and is non-dischargeable. LEGAL DISCUSSION The Court’s analysis must begin with section 523(a) of the Bankruptcy Code which enumerates certain debts which are excepted from an individual’s discharge, 11 U.S.C. § 523(a) (1994); in relevant part, the section provides: A discharge ... does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.... Id. § 523(a)(2)(A) (1994) . Because this is a motion for summary judgment, we examine whether there exists any genuine issue of material fact. The Court’s mission will be “to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial.” Fed.R.Civ.P. 56 advisory committee’s note (1963). In the case at bar, two issues will determine the outcome: First, whether Debtor in fact incurred and is liable for the debt arising from use of the Visa credit cards; second, whether the debt, if indeed owed, is non-dischargeable pursuant to section 523(a)(2)(A) of the Bankruptcy Code. We first address the former issue. A. Debtor’s Liability for the Credit Card Debt As stated earlier, Debtor first claimed that he was not responsible for the purchases made with the credit card in his Answer to Plaintiffs Adversary Proceeding complaint. But previously, in his State Court Verified Answer, Debtor admitted rather than disputed the amount due. No mention of loss or theft was made. Then, in his bankruptcy petition, Debtor neither mentioned nor alluded that he was not responsible for the charges, or that the credit card issued by the Plaintiff had been stolen or lost. Consequently, when Debtor first alleges in the Adversary Answer that the Visa card had been stolen, he is contradicting two documents, both of which were sworn to: his State Court Answer and his bankruptcy petition. The former contains no mention of theft, and the latter affirmatively states that Debtor had suffered no theft within one year pre-petition. Furthermore, as stated, Debtor’s petition lists Plaintiff as an account creditor for $9,300 and the claim is not denoted as disputed, unliquidated or contingent. The veracity and accuracy of these schedules, which were prepared with the aid of bankruptcy counsel, were also affirmed by Debtor’s signature. Finally, Plaintiff has supplied the Court with over 60 copies of merchant sales receipts which purport to contain Debtor’s signature. Debtor did not, in any pleading or in any manner, dispute these signatures or their genuineness, or allege that it was not he who signed each receipt and used the credit card. This is critical: If the authenticity of Debtor’s signatures is not in question, then authenticity may not be a subject for trial. From this background, Debtor seeks to deny liability for the credit card charges. Debtor belatedly made the claim that the charges were not his without any substantiation and without any documentary evidence or proof that the card had been stolen or lost (or that he had reported the card stolen). It is clear that in response to Plaintiffs summary judgment Motion, Debtor has the burden of coming forward and demonstrating that there are material issues of fact to be determined by trial. Meehan v. Amax Oil & Gas, Inc., 796 F.Supp. 461 (D.Colo. 1992). See Allstate Ins. Co., v. Carmer, 794 F.Supp. 871, 872 (S.D.Ind.1991) (“[w]hile facts are viewed in light most favorable to nonmoving party, there is an affirmative burden of production on nonmoving party to defeat proper summary judgment motion”.) To prevail, Debtor must introduce some evidence to support the claimed factual dispute which would require a trial. British Airways Bd. v. Boeing Co., 685 F.2d 946, 951 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). See also Winkel v. Reserve Officer of City of Beloit, Kan., 773 F.Supp. 1487, 1489 (D.Kan.1991) (“[A gjenuine issue of material fact precluding summary judgment exists if evidence is such that reasonable jury would return verdict for nonmoving party; mere scintilla of evidence in favor of nonmoving party is insufficient to create genuine issue of material issue of fact....”). Returning to the instant case, there exists no evidence serving to create any genuine issue of material fact on the issue of liability for the credit card debt. Debtor’s belated and suspect claim that his Visa card had been lost or stolen is devoid of any evidence whatsoever and furthermore is inconsistent with his prior sworn statements. Indeed, Debtor never put the authenticity of his own signature in issue. The mere allegations' by Debtor that the charges were not his will not suffice to defeat Plaintiffs Motion. In light of all of the foregoing, and consistent with the applicable law and the standard with which we adjudicate a summary judgment motion, the Court holds that the signatures upon the sales receipts detailing the uses of Debtor’s Visa credit card are genuine and authentic and that Debtor is liable for all charges thereon. B. Dischargeability of the Debt The second issue is whether summary judgment determining that the debt is non-dischargeable is appropriate. See 11 U.S.C. § 523(a) (1994). The sole argument in Plaintiffs Motion papers in support of its contention that the debt is non-dischargeable, provides: [B]y making purchases far in excess of the credit limit, the said credit was obtained by false pretenses or actual fraud_ Clearly, there was no reasonable expectation of repayment and the question is open as to whether there was even a reasonable expectation that [Debt- or] would be returning to the United States. Affirmation of Joseph Latona in Support of Motion for Summary Judgment, dated August 20, 1992, at 2; see 11 U.S.C. § 523(a)(2)(A) (1994).
7405062-14051	MEMORANDUM OPINION AND ORDER CARRIGAN, District Judge. Plaintiff Brian K. Copeland, a resident of Colorado, brought this class action in the state district court for the City and County of Denver seeking injunctive relief and damages under Colorado statutory and common law. Defendant MBNA America (MBNA) is a Delaware corporation. Pursuant to 28 U.S.C. § 1441, MBNA removed the case to this court. Copeland has filed a motion to remand to state court. MBNA has responded by opposing that motion. The parties have fully briefed the issues and oral argument would not materially assist the decision process. Jurisdiction is alleged under 28 U.S.C. §§ 1331 and 1332. I. FACTUAL AND PROCEDURAL BACKGROUND. MBNA solicits Colorado residents to accept the credit cards it issues. Its standard agreement imposes a late fee of $15.00 if the cardholder fails to pay the monthly payment on time. Copeland, alleging that such fees are prohibited by Colorado law, brought suit against MBNA on behalf of all residents of Colorado who are or have been holders of MBNA Mastercards or Visa cards and who have been, or may be, charged late fees. MBNA removed asserting that federal question jurisdiction exists under the “well-pleaded complaint” rule or an exception to that rule known as “complete preemption.” MBNA also asserts that diversity jurisdiction exists. II.ANALYSIS. A. Well-Pleaded Complaint Rule. A civil action brought in state court alleging claims that lie within the original jurisdiction of federal district courts may be removed to the appropriate court under 28 U.S.C. § 1441. Federal district courts have original jurisdiction over actions “arising under” the laws of the United States. 28 U.S.C. § 1331. Whether a case arises under the laws of the United States is determined from the plaintiffs complaint, unaided by statements alleged in anticipation of defenses that the defendant may raise. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 10, 103 S.Ct. 2841, 2847, 77 L.Ed.2d 420 (1983). The well-pleaded complaint rule is satisfied when the complaint reveals that “a right or immunity created by the Constitution or laws of the United States [is] an element, and an essential one, of the plaintiffs cause of action.” Gully v. First Nat’l Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936) (emphasis added). Here not one of Copeland’s four claims for relief, all of which are founded upon state law, contains, as an essential element, a right or immunity created by federal law. Instead, MBNA argues: “Since the complaint on its face (Complaint ¶¶ 29 & 30) indicates that adjudication of this action requires the construction and application of the National Bank Act, 12 U.S.C. §§ 85 and 86, this action is removable under the well-pleaded complaint rule.” (Notice of Removal, ¶ 2a.) While construction and application of the Federal Bank Act (the Act) may be necessary to adjudicate Copeland’s claims, the Act will arise only as a defense. The presence of a defense based on federal law will not support jurisdiction, “even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987). As a result, the well pleaded complaint rule cannot provide a legitimate basis for removal of this action. Complete Preemption. B. Other courts have found federal jurisdiction over state law challenges to out of state banks charging late fees based upon complete preemption. See Greenwood Trust Co. v. Massachusetts, 971 F.2d 818 (1st Cir. 1992); Hill v. Chemical Bank, 799 F.Supp. 948 (D.Minn.1992); Nelson v. Citibank, 794 F.Supp. 312 (D.Minn.1992). This court, however, respectfully disagrees. Complete preemption is an independent corollary to the well-pleaded complaint rule. Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430. Complete preemption arises when “the pre-emptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule’ ”. Id. (quoting Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 1547, 95 L.Ed.2d 55 (1987)). Complete preemption is not to be applied freely. The Supreme Court has found complete preemption in only three settings. See Metropolitan Life, 481 U.S. 58, 107 S.Ct. 1542 (state contract and tort claims completely preempted by §§ 502(a)(1)(B) and 502(f) of the Employee Retirement Income Security Act of 1974); Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (state property law claim regarding Indian tribal lands completely preempted by federal law); Avco Corp. v. Aero Lodge No. 735, International Ass’n of Machinists & Aerospace Workers, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968) (§ 301 of the Labor Management Relations Act completely preempted state court injunction based on collective bargaining agreement). Removal jurisdiction based on complete preemption only “exists when ... Congress has clearly manifested an intent to make causes of action ... removable to federal court." Metropolitan Life, 481 U.S. at 67-68, 107 S.Ct. at 1548 (Brennan, J., concurring) (emphasis in original). “[T]he prudent course for a federal court that does not find a clear congressional intent to create removal jurisdiction will be to remand the case to state court.” Id. at 68, 107 S.Ct. at 1548 (emphasis in original). In Avco and Metropolitan Life, complete preemption was based upon the broad sweep of jurisdictional provisions, both of which were similarly worded. No such argument is made here. Instead, MBNA argues that Copeland’s claims are completely preempted by 12 U.S.C. §§ 85 and 86. Section 85 states in pertinent part: “Any association may charge on any loan ... interest at the rate allowed by the laws of the State ... where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be greater, and no more.... ” Section 86 states in pertinent part: “The ... charging of a rate of interest greater than is allowed by section 85 of this title, when knowingly done, shall be deemed a forfeiture of the entire interest. ...” Based upon these provisions, national banks may impose on citizens of other states the interest rates of the states in which the banks are located. Marquette Nat’l Bank of Minneapolis v. First Omaha Service Corp., 439 U.S. 299, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978). Nonetheless, this case only addresses preemption as a defense to state regulation of interest rates, not complete preemption as a basis for federal jurisdiction over claims relating to late fees. Neither § 85 nor § 86 explicitly mentions late fees. Although the provisions use the terms “interest” and “rate of interest,” neither of those terms is defined in the Act. Nonetheless, MBNA argues that the terms “interest” and “rate of interest” encompass late fees, thereby justifying federal jurisdiction under the doctrine of complete preemption. The starting point in statutory interpretation is the language of the statute itself. United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3121, 92 L.Ed.2d 483 (1986). Courts are to assume that the legislative purpose is expressed by the ordinary meaning of the words used. Id. Interest rate is defined as “[t]he percentage of an amount of money which is paid for its use for a specified time.” Black’s Law Dictionary 730 (5th ed. 1979) Interest is defined as “a charge for borrowed money[,] generally a percentage of the amount borrowed.” Webster’s Ninth New Collegiate Dictionary 630 (1989). Because late fees are not charged on a percentage basis, the ordinary meaning of the word interest does not include late fees. In Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, one of the cases relied upon by MBNA, the court noted that the word “generally” in Webster’s qualified the definition so as not to exclude other possible meanings. 971 F.2d at 824. Therefore it concluded that the plain meaning rule did not control. Id. The plain meaning of a word, however, is not determined by reference to variations on its ordinary meaning, but by the ordinary meaning itself, i.e., the way it is generally used. Legislative history offers little assistance. The National Bank Act was passed in 1865. Congress did not give federal courts original jurisdiction over federal question cases until 1875. Section 1 Act of March 3, 1875, 18 Stat. 470. See also, Wright, Law of Federal Courts 90 (1983). Therefore, § 85 predates the well-pleaded complaint rule, complete preemption and, in fact, federal question jurisdiction. Nonetheless, the provisions of § 85 were substantially adopted in § 521 of the Depositary Institutions Deregulation and Monetary Control Act of 1980, Pub.L. No. 96-221, 94 Stat. 132 (1980). The Greenwood Trust Co. v. Massachusetts court determined the legislative history of § 521 to be “at bottom, inclusive” as to whether the term interest includes late fees, thereby justifying complete preemption. 971 F.2d at 828. Instead, the court anchored its conclusion to court decisions giving a broad reading to the word interest. See also Nelson, 794 F.Supp. at 312. The dispositive question, however, is whether there is a clear manifestation of congressional intent to assign a preemptive force so extraordinary to §§ 85 and 86 as to convert state law challenges to late fees into claims arising under federal jurisdiction. Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430; Metropolitan Life, 481 U.S. at 66, 107 S.Ct. at 1547. This court concludes that a proposition that is not obvious from the plain meaning of a statute’s language, nor from its legislative history, simply cannot be regarded as a clear manifestation of congressional intent. Therefore, complete preemption cannot provide the basis for federal jurisdiction over Copeland’s claims. C. Diversity Jurisdiction. There is no question that the parties are of diverse citizenship. Therefore, jurisdiction under 28 U.S.C. § 1332 will exist if the amount in controversy requirement of $50,-000 is met. MBNA maintains that the amount in controversy requirement is satisfied based upon Copeland’s claim for injunc-tive relief, or in the alternative, based upon Copeland’s claim for attorneys’ fees. When injunctive relief is sought, “the amount in controversy may be established by looking at the defendant’s cost of complying with the injunction.” Justice v. Atchison, Topeka and Santa Fe Ry. Co., 927 F.2d 503, 505 (10th Cir.1991). Here MBNA maintains that it would cost approximately $70,000 to incorporate “into our existing system changes applicable exclusively to Colorado cardholders.” (Affidavit of Douglas R. Den-ton, ¶ 3.) The $70,000 figure, therefore, is based upon the total detriment to MBNA of complying with the proposed injunction. Before a court may consider total detriment as the basis for satisfying the amount in controversy requirement in a class action case, it must first determine whether the class members’ claims may be aggregated. Lonnquist v. J.C. Penney Co., 421 F.2d 597, 599 (10th Cir.1970). To do otherwise would violate the accepted principle that the claims of the various plaintiffs in a class action may not be aggregated to satisfy the jurisdictional amount in controversy, except in certain narrowly defined circumstances. Id., see Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). “Aggregation has been permitted only (1) in cases in which a single plaintiff seeks to aggregate two or more of his own claims against a single defendant and (2) in cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest.” Snyder, 394 U.S. at 335, 89 S.Ct. at 1056. Neither situation is present here. Therefore, aggregation would not be proper and MBNA’s reliance on total detriment is misplaced. MBNA has not shown that, absent aggregation, the amount in controversy requirement has been met. Therefore, diversity jurisdiction may not be based on the cost of complying with the potential injunction. Finally, MBNA argues that the amount in controversy requirement is satisfied because class members have a “common and undivided interest in the award of attorneys’ fees,” therefore those fees may be aggregated. This position is contrary to existing case law. Goldberg v. CPC Int’l, Inc., 678 F.2d 1365 (9th Cir.), cert. denied, 459 U.S. 945, 103 S.Ct. 259, 74 L.Ed.2d 202 (1982); Czechowski v. Tandy Corp., 731 F.Supp. 406 (N.D.Cal.1990). The cases cited by MBNA deal with punitive damages, not attorneys’ fees and therefore offer no support for its position. See, e.g. Lailhengue v. Mobil Oil Corp., 775 F.Supp. 908, 914 (E.D.La.1991); Martin v. Granite City Steel Corp., 596 F.Supp. 293, 297 (S.D.Ill.1984); In re Northern Dist. of Cal. “Daikon Shield” IUD Prod. Liab. Litig., 526 F.Supp. 887, 910-11 (N.D.Cal.1981), vacated and remanded on other grounds, 693 F.2d 847 (9th Cir.1982). Therefore, the amount in controversy requirement may not be satisfied based upon the potential award of attorneys’ fees. Accordingly, IT IS ORDERED that the plaintiffs motion for remand of this case to the state district court is granted. . Plaintiffs first and second claims.seek damages and injunctive relief under Colorado’s Uniform Consumer Credit Code — Remedies and Penalties. Colo.Rev.Stat. §§ 5-1-101 to 5-13-105 (1992 Repl.Vol.) Plaintiff's third claim is for unjust enrichment. Plaintiffs fourth claim is brought under the Colorado Consumer Protection Act. Colo.Rev.Stat. §§ 6-1-101 to 6-1-205 (1992 Repl.Vol.) . This holding is consistent with this court's ruling in an earlier, factually similar, case. Stoorman v. Greenwood Trust Co., slip op. 92-C-493 (Sept. 22, 1992). . Justice Brennan is quoting the language of the majority opinion, but inserting the emphasis.
1460963-26033	WESLEY E. BROWN, District Judge. The United States of America filed its ■complaint upon a claim of the Commodity Credit Corporation, a wholly owned gov■ernment corporation, in the above entitled action against E. C. Robbins and Richard W. Robbins to recover double damages and forfeitures pursuant to 31 U.S.C.A. § 231. The complaint was filed February 28, 1959. The defendants, E. ■C. and R. W. Robbins were general partners in the Robbins Ranch with ranching ■operations in Comanche, Kiowa and ■Chase Counties, Kansas. E. C. Robbins resided at Belvedere, Kansas, while R. W. Robbins resided at Pratt, Kansas. Briefly summarized, it is the contention of the United States that the defendants through E. C. Robbins and their manager, Evan Koger made applications dated October 24, 1956, and October 12, 1956, for assistance under the Emergency Feed Program of the United States. It contends that it has suffered damages in the amount of $4,273.35 because the defendants’ applications referred to above and claims for assistance were false, fictitious and fraudulent. It demands judgment against the defendants in the amount of $8,546.70 plus such additional forfeitures as provided by law in 31 U. S.C.A. § 231 and all costs and such other general equitable relief to which the court deems it to be entitled. The defendants denied that they had made a false claim as alleged by the United States; stated that their applications were made to Farmers Home Administration on its forms; that the statements contained in the forms were true; and that they were entitled to participate in the Emergency Feed Program. The facts are not in dispute. The relevancy of the facts, however, are disputed in a number of instances. The parties entered into a detailed stipulation of some 433 pages and submitted the same to the court reserving their objections to the relevancy or materiality of certain portions thereof. From this voluminous stipulation and admissions in the pleadings the following relevant facts are material to this decision. The Southwestern part of the United States suffered, beginning in 1951, the worst ' drought in its history which drought continued into 1957. As a result of this drought, the range dried up and many ranchers not only sent their steers to market but also were sending their breeding herds to market. This caused a glut on the market and the prices broke sharply. The United States, through its duly elected and appointed officials, and in cooperation with state authorities, recognized this situation, and in order to preserve the supply of meat, Congress authorized a program designed to assist established ranchers and farm ers located in disaster areas to maintain their basic livestock herd. The lack of rainfall extending over the period of years from 1952 to 1956 became progressively more severe and devastating in its effect, and at the time when there was no feed on the range in the form of grass, the Robbins Ranch made application for emergency feed. The areas where the Robbins ranches were located had been proclaimed disaster areas by the President for many months. In order to retain more breeding animals on the ranch and rather than send more breeding animals to market, the Robbins Ranch made application for emergency feed. The Robbins Ranch was a partnership whose sole business activity was ranching and farming. The partners were Edward C. Robbins and Richard W. Robbins. The partnership had over a period of years established a fine large breeding herd. The balance sheet of the Robbins Ranch showed a total value of over a million and a half dollars in 1951. This was reduced by 1956 to $868,073.56. The statement of income of the Robbins Ranch disclosed a net operating loss of over $32,000 in 1950 and up to $160,546.-09 in 1956. The only year in which there was a net operating income was 1951 and the income was $154,720.10. These losses were overcome by virtue of the sale of replacement breeding animals and breeding animals sold because of drought conditions. The net income of the Robbins Ranch during the period of 1950 to 1956 was in excess of a million and a half dollars. To obtain this income the Robbins Ranch had sold in excess of six thousand head of their breeding herd for a price of over three and one-third million dollars. The Robbins Ranch, during the fall of 1956, made application and obtained approval for emergency feed allotment in Comanche and Chase Counties, Kansas. The application and the certificate in Comanche County certified that they had over a thousand head of livestock in their basic breeding herd, that they had other livestock consisting of 313 steer calves, and that they had 50 tons of hay on hand. The application then provides: “* -x- * Applicant Certification: I certify that the above information is correct and that my principal occupation is farming or ranching, and that I do not have a supply of feed on hand to maintain my basic herd of livestock, listed in Item 1, until December 31, 1956. In order to provide a supply of feed for this livestock, I will need-tons of hay or 333,300 pounds of surplus grains designated by the Commodity Credit Corporation in addition to the feed I have , on hand and that to be harvested during that period, and hereby make application for the purchase of that amount of feed under the Emergency Feed Program. Without the assistance applied for under the Emergency Feed Program, I will be unable to maintain my basic foundation herd and to continue the livestock operation which I have been conducting for 37 years. “I WILL NOT SELL OR OTHERWISE DISPOSE OF ANY OF THE FEED HEREIN APPLIED FOR EXCEPT BY FEEDING IT TO MY BASIC HERD, in Comanche County. “Date: October 24,1956. “Committee Action: We, the undersigned committeemen, certify that the above-named applicant— “(X) Is eligible for assistance under the Emergency Feed Program and hereby approve (His) application for the purchase of-tons of hay or 232,300 pounds of Surplus Grains designated by the Commodity Credit Corporation. “( ) Is NOT eligible for assistance under the Emergency Feed Program. Comments: Date: October 24, 1956, * * ” The Chase County application showed they had 162 head of livestock in basic herd on hand. They had 127 yearling steers and 200 tons of hay. It further provides: “Applicant Certification: I certify that the above information is correct and that my principal occupation is farming or ranching, and that I do not have a supply of feed on hand to maintain my basic herd of livestock, listed in Item 1, until Dec. 31, 1956. In oi'der to provide a supply of feed for this livestock, in addition to the feed I have on hand and that to be harvested during the above period, I will need-tons of hay, 70,000 pounds of Surplus Grains designated by the Commodity Credit Corporation. “I hereby make application for the purchase of this amount of feed under the Emergency Feed Program. “Without the assistance applied for under the Emergency Feed Program I will be unable to maintain my basic foundation herd and continue the livestock operation which I have been conducting for _23_ years. “I WILL NOT SELL OR OTHERWISE DISPOSE OF ANY OF THE FEED HEREIN APPLIED FOR EXCEPT BY FEEDING IT TO MY BASIC HERD IN Chase County. “Date: October 12, 1956. “Committee Action: We, the undersigned committeemen, certify that the above-named applicant— “(X) Is eligible for assistance under the Emergency Feed Program and hereby approve (His) application for - tons of hay, 64.000 pounds of Surplus Grains designated by the Commodity Credit Corporation. “( ) Is NOT eligible for assistance under the Emergency Feed Program. Comments: “Date: October 12, 1956. * " The Robbins Ranch presented the applications approved by the Farmers Home Administration County Committee to the office of the Agricultural Stabilization and Conservation (A.S.C.) Committee of the county in which the respective applications were filed. The A.S.C. County Committee issued the purchase order to the Robbins Ranch. These purchase orders were dated, numbered and signed by the authorized representative of the County Committee. The terms of issuance of the purchase order provided generally that the named farmer could use the purchase order to purchase only the designated amount of surplus feed grains from a “dealer” for use as livestock feed. The “dealers” to whom the purchase orders were transferred presented them to the A.S.C. County Committee shown on the purchase orders. The A.S.C. County Committees issued to the eligible dealer who executed the certification on the purchase order a “Dealer’s Certificate”, bearing a certain number. The Dealer Certificate was then presented to the Commodity Credit Corporation (C.C.C.). The “Dealer’s Certificates” issued by the A.S.C. committees totaled $4,273.35 and were redeemed by the C.C.C. at their face value in C.C.C. — owned surplus feed commodities delivered to the “Dealers”. The Dealer’s Certificates in question were issued by the A.S.C. County Committees in December of 1956. The members of the respective county committees established by the Farmers Home Administration who passed upon and approved the Robbins Ranch applications each stated substantially that, in acting upon and approving the application of the Robbins Ranch, the board did not rely upon the wording of the application to any greater extent than upon any other application, but used its knowledge of local drought conditions and its effect on the Robbins Ranch and the breeding herd maintained by the Robbins brothers, and approved said application in the same manner and after applying the same thought and consideration given to each and every application filed. The committees stated no statements were made to the boards by the Robbins brothers or their agents, either in the application or otherwise by which said board was deceived or defrauded. There is no contention on the part of the United States that the board, consisting of the local county committees of the Farmers Home Administration, acted otherwise than in' good faith, that they had been guilty of any misconduct, or that by the approval of the applications, they had defrauded the federal government. The state administrative officer of the Farmers Home Administration by letter dated July 17, 1957, advised the Robbins that the Administration had determined that they were ineligible to participate in the feed grain program and demanded a return of some $4,273.35. The Robbins refused to pay and the action was commenced by the United States in this Court. The United States, in its brief, states its contention thus: “To reduce this case to its simplest terms, plaintiff (U. S.) contends that the defendants were financially able to purchase feed for their basic herd and that the following certification, ‘Without the assistance applied for under the Emergency Feed Program I will be unable to maintain my basic foundation herd and continue the livestock operation which I have been conducting for -years,’ which was a part of each application submitted for emergency feed, was false and fraudulent for the reason that the defendants were financially able to purchase the feed they obtained as a result of said application.” The Emergency Feed Program of the Federal Government now under consideration by this court has been before the District and Circuit Courts of the Eighth Circuit in the eases of United States v. Wiley’s Cove Ranch, D.C., 181 F.Supp. 371; affirmed 295 F.2d 436 (C.A.8, 1961). The history of the Emergency Feed Program and a detailed analysis of the basic statutory authority and the enabling administrative rules adopted and published by the Secretary of Agriculture to carry out this program have been carefully documented in these cases. We deem it unnecessary to repeat or document the history, statutory authority, or administrative rules in full. We would point out, however, that the basic statutory authority is found in 12 U.S.C.A. § 1148a-2(d), which says in part: “The Secretary is authorized in connection with any major disaster determined by the President to warrant the assistance by the federal government * * to furnish to established farmers, ranchers, or stockmen feed for livestock or seeds for planting for such period or periods of time and under such terms and conditions as the Secretary may determine to be required by the nature and effect of the disaster.” The Secretary of Agriculture delegated to the Farmers Home Administration the duty of administering the program (19 Federal Register 4674). The Farmers Home Administration promulgated regulations prescribing the eligibility of an applicant and the procedure to be followed. Paragraphs 388.1 to 388.6 of Title 6, Code of Federal Regulations (19 F.R. 5199). The regulations established a County Committee to determine the eligibility for those seeking aid under the program. The District Court in the Wiley’s Cove Ranch case, supra, stated: “ * * * the County Committee was given wide discretion in determining eligibility and was specifically authorized to consider the following: “(1) The application “ (2) Knowledge of the committeemen concerning the applicants’ operations and finances “(3) Local conditions and probable duration of the emergency feeding period “(4) The general effect of the emergency conditions on applicant’s ability to meet his future operating expenses “(5) The probable effect of the emergency on applicant’s income.” The United States Court of Appeals for Eighth Circuit reviewed in the Wiley’s Cove Ranch case, supra, the regulations pertinent to the agency action necessary to certify those persons eligible for relief under the Emergency Feed Program. There the Court of Appeals said: “We construe the language of the regulations as giving to the Committee unqualified discretion and authority for the determination of eligibility to receive assistance under the Emergency Feed Program. “In view of such authority, and considering the Committee’s special competence, we hold with the District Court that the certification of appellee’s eligibility to receive benefits under the Emergency Feed Program constituted ‘agency action by law committed to agency discretion.’ ” (295 F.2d at page 443.) In the Wiley’s Cove Ranch case, the Court not only held that absent fraud there can be no judicial review or inquiry, but in addition, held that the action of the County Committee was a final determination and that there could be no administrative review from the report of the County Committee. In July 1956 regulations pertaining to Part 475 — 1956 Emergency Feed Program were issued by the Commodity Credit Corporation. (21 F.R. Number 132.) The general statement of these regulations discloses their purpose. It is there stated, “The regulations contained in this part state the terms and conditions: (a) under which approved applicants in designated areas will be issued Farmer’s Purchase Orders which may be tendered to dealers as part payment for designated surplus feed grains for use of livestock feed, (b) under which dealers who accept Farmer’s Purchase Orders will be issued Dealer’s Certificates, and (c) under which Dealer’s Certificates may be presented to C.C.C. for the purchase of available designated C. C.C. owned surplus feed grains.” (475.25.) The regulations also define certain of the terms: “Farmer” means a farmer, rancher or stockman, whose application for assistance under the 1956 Emergency Feed Program has been approved by a Farmer's Home Administration County Committee.” (475.27(d).) “The term ‘Dealer’ means any person * * * engaged in selling designated surplus feed grains or approved mixed feed.” (475.27(e).) “An ‘Eligible Dealer’ means a dealer who has entered into a feed dealer’s agreement with C.C.C. and is entitled to present purchase orders to County A.S.C. Committees in exchange for Dealer’s Certificates.” (475.27(f).) The regulations then go on to provide that: “Farmers’ Purchase Orders * * * will be issued only in areas which have been designated by the President under Public Law 875, 81st Congress, as areas of major disaster, and also by the Secretary of Agriculture under Public Law 38, 81st Congress, as amended by Public Law 115, 83rd Congress, and Section 301 of Public Law 480, 83rd Congress, as areas in which assistance of the nature provided for herein is needed.” (475.28(a).) The transfer by farmers of purchase orders, “* * * may be used by the farmer to whom issued only for purchases made on or after the' date of approval of the application * * * of designated surplus feed grains or approved mixed feed by his transfer of such purchase order to a dealer as part payment on the purchase price of such grains and feed. A dealer to whom a purchase order is transferred is required, in order to obtain a dealer’s certificate based thereon, to accept such purchase order as part payment to the full extent of the value thereof as specified in Paragraph (d) of this section for each hundredweight of designated surplus feed grains and approved mixed feeds shown thereon, up to the maximum value of the purchase order.” (475.-28(c).) The regulations further provide: “Subject to all of the provisions of this part, valid Dealer’s Certificates, if presented to C.C.C. by the holder within 120 calendar days after the date of issuance, will be accepted at face value for the purchase of available designated C.C.C. —owned surplus feed grains.” (475.30.) The holdings of the Courts in the Wiley’s Cove Ranch cases, in our opinion, are sound but they are premised as was heretofore pointed out on the absence of fraud on the part of those participating in the program. The issues before the Court in this case, however, are whether or not the defendants made a claim against the United States, and if they made a claim was it false, fictitious, or fraudulent, within the meaning of 31 U.S.C.A. § 231, the False Claims Act. ■ The facts in this case disclose that the defendants made an application to the F.H.A. County Committee. Their applications were approved and the F.H. A. County Committee issued the defendants a purchase order. The defendants presented their purchase order to certain grain dealers in exchange for surplus feed available at a certain price from these dealers. The defendants at this point had obtained no feed from the federal government, the most that can be said was that they obtained feed from a grain dealer on the basis that the grain dealer could use the purchase order to obtain a Dealer’s Certificate. The defendants ceased to become involved in the transaction from this point forward. Dealer’s Certificates could only be obtained from the A.S.C. County Committee which had originally issued the Farmer’s Purchase Order which had been presented to the grain dealer. The grain dealer then presented his Dealer’s Certificate if it was valid and met the requirements of the regulations to the C.C.C. to purchase C.C.C. surplus feed grains. The Commodity Credit Corporation has been determined to be an administrative device established by Congress for the purpose of carrying out federal farm programs with public funds. It has also been determined that false claims made against Commodity Credit Corporation are covered by the False Claims Act. Rainwater v. United States, 356 U.S. 590, 78 S.Ct. 946, 2 L.Ed.2d 996 (1958). The False Claims Act, 31 U.S.C.A. § 231, provides in part as follows: “Any person * * * who shall make or cause to be made, or present or cause to be presented * * * any claim upon or against * * * the United States * * * knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining * * * the payment or approval' of such claim, makes * * * any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement * * * shall forfeit and pay to the United States the sum of $2,000, and, in addition, double the . amount of damages which the United States may have sustained by reason of the doing or committing such act, together with the costs of suit; and such forfeiture and damages shall be sued for in the same suit.” The interpretation of the term “claim” as used in the False Claims Act, has been set forth by the Supreme Court of the United States in United States v. Mc-Ninch, 356 U.S. 595, 78 S.Ct. 950, 2 L. Ed.2d 1001, stating: “ * * * that in determining the meaning of the words ‘claims against the Government’ we are actually construing the provisions of a criminal statute. Such provisions must be carefully restricted, not only to their literal terms but to the evident purpose of Congress in using those terms, particularly where they are broad and susceptible to numerous definitions. See United States ex rel. Marcus v. Hess, 317 U.S. 537, 542 [63 S.Ct. 379, 87 L.Ed. 443]; United States v. Wiltberger, 5 Wheat. 76, 95-96 [5 L.Ed. 37].” The Supreme Court, in the case of the United States v. McNinch, 356 U.S. 595, 78 S.Ct. 950, 2 L.Ed.2d 1001, pointed out in the Footnote 10: “While the word ‘claim’ may sometimes be used in the broad judicial sense of a ‘demand of some matter as a right made by one person upon another, to do or to forebear to do some act or thing as a matter of duty’, * * * it is clear, in the light of the entire context, that in the present statute, the provision relating to the payment or approval of a ‘claim upon or against’ the Government relates solely to the payment or approval of a claim for money or property to which a right is asserted against the Government, based upon the Government’s own liability to the claimant.” In the McNinch case the Supreme Court had before it the question of whether or not a lending institution application for credit insurance under the Federal Housing Administration Program was a claim as that term was used in the False Claims Act. The Supreme Court said, “In normal usage or understanding of an application for credit insurance would hardly be thought of as a ‘claim against the government.’ As the Court of Appeals for the Third Circuit said in this same context, ‘the conception of a claim against the government normally connotes a demand for money or for some transfer of public property.’ United States v. Tieger [3 Cir.] 234 F.2d, 589, 591. In agreeing to insure a home improvement loan the FH A disburses no funds nor does it otherwise suffer immediate financial detriment. It simply contracts, for a premium, to reimburse the lending institution in the event of future default, if any.” The Supreme Court did not reach the question we have here because there had been no default and the lending institution in McNinch had not made demand for reimbursement. The analogy, of McNinch to the present case is the effort of the United States to require a legal conclusion that the farmer’s application to the F.H.A. County Committee for surplus feed is a “claim” under the False Claims Act. In holding the application for credit insurance was not such a “claim”. The Supreme Court also said in McNinch: “We acknowledge the force in the Government’s argument that literally such an application could be regarded as a claim, in the sense that the applicant asserts a right or privilege to draw upon the Government’s credit. But it must be kept in mind, as we explained in Rainwater, that in determining the meaning of the words ‘claim against the Government’ we are actually construing the provisions of a criminal statute. Such provisions must be carefully restricted, not only to their literal terms but to the evident purpose of Congress in using those terms, particularly where they are broad and susceptible to numerous definitions. See United States ex rel. Marcus v. Hess, 317 U.S. 537, 542 [63 S.Ct. 379, 87 L.Ed. 443]; United States v. Wiltberger, 5 Wheat. 76, 95-96 [5 L.Ed. 37].” ' The reasoning in the McNinch case does not lend itself to a determination that the defendants’ applications in the instant case could be considered claims under the False Claims Act. Its money or property was not paid out by the United States on the defendants’ application, but upon the “Dealer’s Certificates” to the Eligible Dealers. See also the case of United States v. Borth, 266 F.2d 521 (C.A.10, 1959). There is still another reason why the defendants’ application cannot be considered a claim under the False Claims Act. One of the essential elements toward a recovery based on actionable fraud, is that not only is the representation false, but that the person to whom the representation or application was made must rely on such application. The Government in the present case did not rely upon the application of the defendants, but relied upon the independent action of the F.H.A. County Committees. In the case of United States v. Goldberg, D.C., 158 F.Supp. 544, it was stated that where the United States does not rely alone upon the representation of one making a claim, but determines the facts by an independent investigation, there can be no action under the False Claims Act. If, arguendo, the applications signed by the defendants or their agents were to be considered “claims”, the United States has, in our opinion, failed to prove that such applications were, in fact, false, fraudulent or a misrepresentation which amounted to fraud. The Supreme Court of the United States has defined fraud to mean, “conscious wrongdoing, and intention to cheat or to be dishonest.” United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113. The United States must, in our opinion, in order to establish that the defendants made a false claim against it, prove that there was a false representation of a material fact made with knowledge of its falsity which false representation must be believed and acted upon by the United States to its damage. Cahill v. Curtiss-Wright Corporation, D.C., 57 F.Supp. 614; United States v. Farina, D.C., 153 F.Supp. 819; United States v. Park Motors, D.C., 107 F.Supp. 168; Mandel v. Cooper Corporation, D.C., 42 F.Supp. 317.
3760654-10902	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Teodoro Rosas-Herrera appeals his conviction and seventy-one months’ sentence for illegally reentering the United States after having been deported subsequent to an aggravated felony conviction. See 8 U.S.C. § 1326(a), (b)(2). For the following reasons, we affirm. I. On February 6, 2011, Detective James Carter (Detective Carter) of the Alamance County, North Carolina Sheriffs Office was on duty driving his patrol vehicle when he observed another vehicle, traveling in a weaving pattern at approximately ten miles per hour in the opposite lane, with its front windshield completely iced over, with the exception of a three-inch by four-inch area on the driver’s side. In the judgment of Detective Carter, the driver of the vehicle could not adequately see approaching traffic from either the vehicle’s right or left side, and therefore, was driving recklessly in violation of North Carolina law. See N.C. Gen.Stat. § 20-140(b) (“Any person who drives any vehicle upon a highway or any public vehicular area without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property shall be guilty of reckless driving.”). After the vehicle passed, Detective Carter turned his patrol vehicle around in order to effectuate a stop of the vehicle he had just observed with the iced-over windshield. Once turned around, Detective Carter observed that such vehicle had turned left into a driveway and had pulled up to a closed gate. Detective Carter pulled his patrol vehicle up behind the vehicle and activated his blue lights. Detective Carter approached the stopped vehicle and asked the driver for his driver’s license and vehicle registration. The driver admitted that he did not have a valid driver’s license or vehicle registration, but indicated that he did have a Mexican driver’s license, identified himself as Carlos Matías Ortiz, and provided a date of birth. As Detective Carter returned to his patrol vehicle to run a check on the name and date of birth, he observed the driver exit the vehicle. Detective Carter then advised the driver to remain in the vehicle, but the driver fled on foot. Detective Carter called for back-up and chased the driver on foot for approximately eight to ten minutes until the driver stumbled and fell. At this time, Detective Carter secured the driver in handcuffs and arrested him for resisting a public officer. By the time Detective Carter had returned to his patrol vehicle with the handcuffed driver in tow, two fellow officers had arrived on the scene with a drug-sniffing canine. The driver was placed in a patrol vehicle while one of the officers walked the canine around the driver’s vehicle. The canine alerted on the driver’s side where the driver’s door had remained open. In examining where the canine had alerted, the officer saw a firearm “ ‘sticking under the seat.’ ” (J. A.73). The firearm turned out to be loaded. Once at the Alamance County jail, the driver came before a magistrate judge and again identified himself as Carlos Matías Ortiz. He was charged with the offenses of resisting a public officer and illegally carrying a concealed weapon. Of relevance to the issues on appeal, the driver’s fingerprints, which had been taken during the routine booking process, matched the fingerprints of a man named Teodoro Rosas-Herrera. The name Carlos Matías Ortiz was listed as an alias. The driver subsequently admitted that his real name was Teodoro Rosas-Herrera (Rosas-Herrera) and that he was a citizen of Mexico. Further investigation revealed that Ro-sas-Herrera had been removed from the United States on November 17, 2008, deported to Mexico, and had never been given permission to return to the United States. Records also showed that, on March 2, 2007, Rosas-Herrera had been convicted in the United States District Court for the Western District of North Carolina, of the offense of conspiracy to possess with intent to distribute a quantity of cocaine, which is an aggravated felony under federal immigration law. See 8 U.S.C. § 1101(a)(43)(B) (defining “aggravated felony” as “illicit trafficking in a controlled substance”). Rosas-Herrera entered a conditional plea of guilty to one count of illegally reentering the United States after having been deported subsequent to an aggravated felony conviction, see id. § 1326(a), (b)(2), reserving the right to challenge on appeal the district court’s denial of his prior motion to suppress all information law enforcement collected following his arrest that revealed his true identity (e.g., his name and fingerprints). The district court sentenced him to seventy-one months’ imprisonment and three years’ supervised release. This timely appeal followed. II. Rosas-Herrera first challenges the district court’s denial of his motion to suppress the evidence of his identity. According to Rosas-Herrera, Detective Carter unreasonably seized him in violation of the Fourth Amendment when Detective Carter initially stopped him, and, therefore, all evidence resulting from such seizure should have been suppressed. Rosas-Herrera argues that the initial stop of his vehicle by Detective Carter violated the Fourth Amendment because Detective Carter lacked any reasonable, articulable suspicion that he had committed a traffic violation in order to justify the stop. Building on this argument, Rosas-Herrera argues that he was then in exactly the same legal posture as the defendants in United States v. Oscar-Torres, 507 F.3d 224 (4th Cir.2007), and Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Rosas-Herrera’s challenge to the district court’s denial of his motion to suppress is without merit. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” U.S. Const. amend. IV, and the temporary detention of an individual during the stop of an automobile by a law enforcement officer constitutes a seizure of the person within the meaning of the Fourth Amendment, United States v. Ortiz, 669 F.3d 439, 444 (4th Cir.2012). Of relevance here, “[ojbserving a traffic violation provides sufficient justification for a police officer to detain the offending vehicle for as long as it takes to perform the traditional incidents of a routine traffic stop.” United States v. Branch, 537 F.3d 328, 335 (4th Cir.2008). See also Ortiz, 669 F.3d at 444 (“law enforcement officers may stop a vehicle that they observe is violating a traffic law”). In considering the district court’s denial of Rosas-Herrera’s motion to suppress, we review the district court’s legal conclusions de novo and its factual findings for clear error, construing the evidence in the light most favorable to the government. United States v. Kelly, 592 F.3d 586, 589 (4th Cir.2010). Moreover, we must “particularly defer to a district court’s credibility determinations, for it is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress.” United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir.2008) (internal quotation marks omitted). Here, the district court held an evi-dentiary hearing on Rosas-Herrera’s motion to suppress, during which it heard live testimony from Detective Carter regarding, inter alia, the events leading up to his traffic stop of the vehicle driven by Rosas-Herrera. The district court found the testimony of Detective Carter to be credible and concluded that “the objective evidence supported] a reasonable, articulable suspicion that Rosas-Herrera was operating his vehicle recklessly under the circumstances by attempting to drive on the roadway without adequate vision through his windshield.” (J.A. 80). Based on our review of the facts as found by the district court and the applicable law, we hold that Detective Carter’s stop of the vehicle driven by Ro-sas-Herrera was amply supported by reasonable suspicion, and therefore did not' violate the Fourth Amendment. Our holding takes Rosas-Herrera’s case completely outside of Oscar-Torres, and therefore renders such decision of no aid to Rosas-Herrera on this issue. In Oscar-Torres, the defendant was convicted of illegally reentering the United States following commission of a felony and deportation. 507 F.3d at 226. On appeal, the defendant challenged the district court’s denial of his motion to suppress the fingerprint evidence and the records obtained through it as fruit of his illegal arrest. Id. The government conceded the illegality of the defendant’s arrest at the appellate level, but argued the evidence should not be suppressed. Id. at 227. We reversed the judgment and remanded the case for the district court to determine whether, in obtaining the defendant’s fingerprints (and attendant records), the police officers were motivated by an investigative purpose, and if so, ordered the district court to suppress such evidence. Id. at 282. Unlike the illegal arrest in Oscar-Torres, which led to the discovery of the defendant’s fingerprints and attendant records in that case, there was no illegal arrest in the present case and Detective Carter’s initial stop of Rosas-Herrera’s vehicle was legal. Accordingly, Oscar-Torres is inapposite. Gant is inapposite as well. In Gant, the Supreme Court held that “[pjoliee may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 556 U.S. at 351, 129 S.Ct. 1710. Rosas-Herr-era only challenges the legality of his initial stop by Detective Carter and does not separately challenge the legality of the search of his vehicle following the canine alert on the driver’s side. See Branch, 537 F.3d at 335-36 (police may order canine sniff of vehicle as part of routine traffic stop provided it does not unreasonably delay length of stop). Accordingly, Gant is of no help to Rosas-Herrera. For the reasons stated, we hold the district court did not err in denying Ro-sas-Herrera’s motion to suppress the evidence of his identity obtained as the fruit of his initial stop by Detective Carter. Accordingly, we affirm Rosas-Herrera’s conviction for illegally reentering the United States after having been deported subsequent to an aggravated felony conviction. III. Rosas-Herrera challenges his sentence of seventy-one months’ imprisonment on the basis that the district court should not have varied upward fourteen months from the high-end of his advisory sentencing range of forty-six to fifty-seven months’ imprisonment under the United States Sentencing Guidelines (USSG or Guidelines). Finding no error, we affirm.
12274713-7994	MEMORANDUM OPINION AND ORDER ROSEMARY M. COLLYER, United States District Judge Wallace G. Mitchell, a federal prisoner, sues Charles E. Samuels, Jr., former Director of the Bureau of Prisons (BOP), and Thomas Kane, Acting Director of BOP, for an alleged failure to lodge a correction to Mr. Mitchell’s sentencing records to remove one or more unspecified separation orders. Mr. Mitchell states that his appeal from a 1991 jury verdict was remanded by the D.C. Court of Appeals in 1993 with directions to remove the separation order(s) but that Mr. Samuels and Mr. Kane have refused to do so. The Government’s Motion to Dismiss was filed on August 15, 2016, see MTD [Dkt. 8], and on August’ 16, 2016, the Court ordered Mr. Mitchell to file his Response no later than September 23, 2016. See Order [Dkt. 9]. At the Court’s subsequent order, the Government reported that it had mailed its motion to Mr. Mitchell on August 18, 2016. See Notice [Dkt. 10]. On September 8, 2016 (entered on ECF on September 14, 2016), Mr. Mitchell moved for relief from the Court’s August 31, 2016 order consolidating two of his cases, complaining that he did.not receive a copy of the motion to consolidate and had no way of opposing it. See First Mot. for Relief [Dkt. 12]. He also stated that he had received the August 16, 2016 Order requiring him to respond to Defendants’ motion by September 23 but, as of September 8, had not yet received the motion itself. Id. ¶ 4. He complained that the D.C. Jail, where he is- temporarily housed, was failing to delivér mail to him from the United States Attorney’s Office. By Minute Entry Order (MEO) dated October 12, 2016, the Court denied the motion for relief from judgment as no judgment had issued and sua sponte extended Mr. Mitchell’s time to respond to the Motion to Dismiss until November 15, 2016, again warning that a failure to file a timely response could lead to dismissal. See MEO 10/12/16. As noted on the docket, the Cterk of Cqurt mailed the MÉO to Mr. Mitchell. On November 30, 2016 — two weeks after his deadline — Mr. Mitchell filed a motion for an extension of time to file his response, stating that he had not received the October 12, 2016 order. See Mot. for Extension [Dkt. 13]. By MEO dated December 2, 2016, the Court granted another extension to January 18, 2017, nunc pro tunc to November 15, 2016. See MEO 12/2/16, When nothing was received, despite generous leeway, the. Court granted the motion to dismiss.on March 24, 2017, without prejudice. See Final Order [Dkt. 14]. On April 14, 2017, Mr. Mitchell moved for relief from the dismissal order under Rule 60(b) of the Federal Rules of Civil Procedure. See Second Mot. for Relief [Dkt. 15]. He contends that “on or about January 12, 2017,” he gave his opposition “to the prison officials for mailing” and thus “was surprised” to learn that the case had been dismissed. Id. at 1-2. Mr. Mitchell states that he “will need an extension of time to recompile his opposition” if the motion is granted. Id. at 3." The granting of. a Rule 60(b) motion is “discretionary” and need not occur “unless the district court finds that there is an intervening change of controlling law, the availability of new evidence or the need to correct a clear error or prevent manifest injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). To ensure that reopening a case is worthwhile, “movants must show that their underlying claims have at least some merit. They need not meet a particularly ‘high bar’ to satisfy this threshold requirement, but they must provide at least ‘a hint of a suggestion’ that they might prevail.” Thomas v. Holder, 750 F.3d 899, 902 (D.C. Cir. 2014) (quoting Marino v. DEA, 685 F.3d 1076, 1080 (D.C. Cir. 2012)). This “well-established” standard applies even when “the claims were not originally resolved on the- merits but were instead dismissed for failure to prosecute” or when, as here, the case was dismissed after the plaintiff failed to respond to a motion to dismiss. Id. (citing Murray v. District of Columbia, 52 F.3d 353 (D.C. Cir. 1995); Lepkowski v. Dep’t of Treasury, 804 F.2d 1310 (D.C. Cir. 1986)). Mr. Mitchell has offered nothing to support reopening this matter under the foregoing standard. Mr. Mitchell was convicted in the Superior Court of the District of Columbia in 1991 of violent crimes including armed premeditated murder, armed felony murder, armed ■ first-degree burglary, armed assault with intent to kill, and'possession of a firearm during a crime of violence. See Mitchell v. United States, 629 A.2d 10, 10 (D.C. 1993). He is serving a life sentence with no possible parole before 2021. He has been in the custody of the BOP since 1991, most recently at U.S. Penitentiary Florence, Colorado, until he was released on a federal writ to the custody of the D.C. Department of Corrections (DOC) on July 18, 2014, for reasons unrelated to this litigation. He has initiated various cases against DOC since that time. In the instant matter, he complains that former BOP Director Charles E. Samuels, Jr., and Acting BOP Director Thomas Kane “ha[ve] refused to honor and lodge ... corrected records ... causing Plaintiff to suffer irregular housing and custody status in the FBOP [Federal Bureau of Prisons].” Compl. [Dkt. 1-1] at 3. He brings his suit under D.C. Code § 16-1901, for a writ of habeas corpus. Id. ' The Government responds that Mr. Mitchell can no longer proceed in forma pauperis (IFP) under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), because he has filed at'least three prior cases which were dismissed as frivolous, malicious, or for failure to state a claim. See Ibrahim v. District of Columbia, 208 F.3d 1032, 1036 (D.C. Cir. 2000). It notes that Mr. Mitchell has sued the government often. See Mitchell v. Lynch, No. 15-mc-918-UNA, Mem. & Order [Dkt. 1] at 2 (D.D.C. filed July 15, 2015) (denying Plaintiffs in forma pauperis application under PLRA’s three-strikes rule); see also Deen-Mitchell v. Young, No. 12-30748, Initial Case Check [Dkt. 00511930003] at 1 (6th Cir. filed July 18, 2012) (informing Plaintiff that he has had three or more cases dismissed as frivolous); Gilbert-Mitchell, Jr. v. Patterson, No. 10—2016, Order [Dkt. 18] at 1 (7th Cir. filed Apr. 27, 2010) (“Mitchell has, on three or more prior occasions, brought an action or appeal in which claims were dismissed on the grounds that they were frivolous or failed to state a claim upon which relief may be granted, and he has been informed of his three-strike status by numerous courts.”); Deen-Mitchell v. Young, No. 10-334-PM-KK, Order [Dkt. 24] at 2 (W.D. La. filed Feb. 18, 2010) (listing previous cases and finding Plaintiff is barred from proceeding in forma pauperis), As noted, this Court has previously recognized that Mr. Mitchell has accumulated the “three strikes” that preclude him from proceeding IFP absent a showing of “imminent danger of serious physical injury” under 28 U.S.C. § 1915(g). See Mitchell v. Lynch, supra (citing Gilbert-Mitchell v. Allred, 12-cv-1997, 2013 WL 1365781 (D. Co. Apr. 3, 2013)). Mr. Mitchell does not complain that he is in imminent danger. While the Superior Court, where this action was first filed, granted Mr. Mitchell IFP status, courts frequently reconsider that status when asked to do so, as Defendants do here. See Asemani v. USCIS, 797 F.3d 1069, 1073 (D.C. Cir. 2015). The Government asks the Court to rescind Mr. Mitchell’s IFP status and require him to pay the full filing fee before the case can proceed any further. But this Court has previously declined the Government’s request, noting “from the specific language of § 1915(g) that the three-strike provision does not apply to a prisoner who is before this Court only because a defendant removed his case from state court.” Mitchell v. Holliday, 202 F.Supp.3d 116, 120 (D.D.C. 2016). Therefore, because Mr. Mitchell did not bring either of the two consolidated cases to federal court; his IFP status -will not be revoked.
9340941-8204	OPINION McKEOWN, Circuit Judge. We consider in this case whether the state of Nevada waived its Eleventh Amendment immunity by removing a law suit from state to federal court. We address this question only in the context of claims brought under state law because no valid federal claims have been brought against Nevada. Bound by the Supreme Court’s recent decision in Lapides v. Board of Regents, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), which squarely addressed this issue, we conclude that Nevada waived its immunity from the state-law claims by joining in the removal of the case to federal court. I. Background This appeal arises out of Joseph Bour-deau’s (“Bourdeau”) efforts to charter a new financial institution, Bank of Lake Tahoe (“BLT”), following his forced resignation from Bank of America, N.A. (“Bank of America”). Bourdeau is a former manager of Bank of America’s Incline Village branch in Nevada. Based on an investigation that revealed numerous violations of internal policy, Bourdeau was forced to resign. He then applied to the Federal Deposit Insurance Corporation (“FDIC”) and the State of Nevada Financial Institutions Division (“FID”) for approval to organize and operate a new bank, BLT. After investigating Bourdeau and reviewing his application, the FDIC and the FID, through Robert Geerhart (“Geerhart”), its Senior Supervising Examiner, concluded that Bourdeau could not serve as an officer or director of the new bank. Although Bourdeau was not authorized to serve in an executive capacity, BLT was chartered and eventually merged with another institution, Nevada Banking Company. Following this unfavorable outcome, Bourdeau filed suit in Nevada state court against Bank of America and several of its employees, claiming, among other things, slander, interference with contractual relations, and misrepresentation. Bourdeau did not succeed on most of the claims, and the Nevada Supreme Court, on appeal, reversed the jury verdict in his favor on the interference claim. Not content to await retrial, which would ultimately result in a $2,300,000 judgment in his favor, Bourdeau, along with BLT, filed another action in state court claiming that additional conduct violated his rights. Bank of America was again named a defendant, along with the FID and Geerhart. As against the two state defendants, Bour-deau and BLT, both citizens of Nevada, alleged numerous violations of state law as well as federal constitutional violations under 42 U.S.C. § 1983 and the Equal Protection Clause. Bank of America filed a Notice of Removal to federal court, in which the FID and Geerhart affirmatively joined. The district court granted Bank of America’s motions for summary judgment and for attorney’s fees and dismissed the claims against the FID and Geerhart on the basis of Eleventh Amendment immunity, specifically holding that Nevada had not waived its immunity by joining in the removal of the case to federal court. II. Discussion The Eleventh Amendment provides 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 one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. The amendment has been construed to extend to suits brought by a state’s own citizens, Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), and the immunity it provides ex tends to state agencies. See Hibbs v. Dep’t of Human Res., 273 F.3d 844, 850 (9th Cir.2001) (citing Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982)). Although a state is free to waive its Eleventh Amendment immunity by consenting to suit, the test for waiver is “ ‘a stringent one.’ ” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). A state waives its immunity when it “ ‘voluntarily invokes’ ” federal jurisdiction or “makes a ‘clear declaration’ that it intends to submit itself to [federal] jurisdiction.” Schulman v. California (In re Lazar), 237 F.3d 967, 976 (9th Cir.2001) (quoting Coll. Sav. Bank, 527 U.S. at 675-76, 119 S.Ct. 2219). The precise contours of Eleventh Amendment waiver were not exactly crystal clear at the time the district court issued its decision in this case, nor had our circuit addressed the issue in the context of a voluntary removal from state court to federal court. See, e.g., Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 758-59 (9th Cir.1999) (“[W]e have not had occasion to address the issue.”). Other circuit courts were divided on the issue. Compare, e.g., McLaughlin v. Bd. of Trustees of State Colls. of Colo., 215 F.3d 1168, 1171 (10th Cir.2000) (removal waives immunity) with Estate of Porter ex rel. Nelson v. Illinois, 36 F.3d 684, 690-91 (7th Cir.1994) (removal does not waive immunity). Any uncertainty fell by the wayside last year when the Supreme Court held, in Lapides v. Board of Regents, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), that, at least for purposes of state law claims, a state waives its immunity to suit in a federal court when it removes a case from state - court. The Court reasoned that, although a state ■ may be brought involuntarily into a state court proceeding as a defendant, the state “voluntarily invoked] the federal court’s jurisdiction” by voluntarily agreeing to remove the case to federal court. Id. at 1644. Important for our purposes here, however, the Supreme Court limited its holding in Lapides to the “context of state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings.” Id. at 1643. The Court concluded that no federal claim survived because the only federal cause of action was a claim against the state of Georgia and its officials under 42 U.S.C. § 1983, and a state is not a “person” for purposes of § 1983 liability. See id. (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). The Court did not address the scope of waiver by removal where a cognizable federal claim had been brought. Lapides, 122 S.Ct. at 1643. We too find it unnecessary to reach the question whether removal of federal claims abrogates a state’s Eleventh Amendment immunity. Here, paralleling Lapides, the plaintiffs have asserted constitutional violations against a state agency and a state official pursuant to 42 U.S.C. § 1983. The ' complaint alleges three causes of action against the FID and Geer-hart under federal law: a claim for monetary relief for constitutional violations under § 1983; a claim for declaratory and injunctive relief against application of the state banking laws on constitutional grounds; and a claim for monetary relief for “equal protection” violations. Bour-deau and BLT do not articulate the basis for the latter two causes of action, but because “a litigant complaining of a violation of a constitutional right must utilize 42 U.S.C. § 1983,” Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir.1992), we construe these allegations under the umbrella of § 1983. The constitutional claims for monetary relief fail under the well-established principle reiterated in Lapides: A state and its officials acting in their official capacities are not considered “persons” within the meaning of § 1983. See Lapides, 122 S.Ct. at 1643; Will, 491 U.S. at 71, 109 S.Ct. 2304. There remains, however, the question whether Bourdeau and BLT have alleged a cognizable federal claim against Geerhart for injunctive relief. As the Supreme Court explained in Will, “a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’ ” 491 U.S. at 71 n. 10, 109 S.Ct. 2304 (citing Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908)).
10536391-18852	HARLINGTON WOOD, Jr., Circuit Judge. Plaintiff-appellant Idris Ibrahim Siddiqi (“Siddiqi”) was confined at the Cook County Jail (“Jail”) for four months in 1985. During that time Siddiqi, who is a Muslim, was unable to attend Muslim services in the Jail. Siddiqi filed this lawsuit under 42 U.S.C. § 1983 alleging that Phillip T. Hardi-man, then Executive Director of the Cook County Department of Corrections (“Director”) denied Siddiqi his free exercise rights under the first amendment, as applied to the states through the fourteenth amendment. At trial, the jury returned a verdict for the Director. The district court then denied Siddiqi’s motion for judgment notwithstanding the verdict and this appeal followed. The district court had jurisdiction under 28 U.S.C. § 1343 over Siddiqi’s claim for money damages under 42 U.S.C. § 1983. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Siddiqi asks us to reverse the trial court’s entry of judgment for the Director, arguing that the district court incorrectly denied his motion for judgment notwithstanding the verdict. Siddiqi also claims that a new trial is required since the district court did not inform the parties about certain jury instructions prior to closing arguments in violation of Fed.R.Civ.P. 51. I. FACTUAL BACKGROUND Siddiqi converted to Islam in 1974 while serving time for armed robbery in the Pen-dleton Reformatory in Indiana. During his time at Pendleton Siddiqi, who changed his name for religious reasons, attended Muslim services and classes at the Reformatory. Siddiqi was next confined in the Terre Haute Federal Penitentiary after being convicted of armed bank robbery. Siddiqi testified that he also attended Muslim services there. After being released from Terre Haute in 1980, Siddiqi worked for the Muslim Student Association for three years, until his arrest and conviction for another armed robbery in Illinois. Siddiqi served time in the Stateville Correctional Center, where he testified that he took part in Muslim religious activities. Siddiqi’s incarceration in the Cook County Jail began when he was accused and convicted of escaping from Stateville. Sid-diqi was confined in the Cook County Jail from July 8 through November 1, 1985. Siddiqi served his time in Division One, the high security division of the jail. While incarcerated at Cook County, Siddiqi claims that he was unable to procure the services of a Muslim minister for weekly prayer services, known as Jumu’ah services. Beginning in August, Siddiqi made written and oral complaints to jail authorities asking that Muslim services be made available to him. Siddiqi testified that he was un able to attend Jumu’ah services anytime during his stay in the Cook County Jail. The Cook County Jail accommodates the religious needs of its prisoners through an organization called the Chaplaincy Council (“Council”). In 1979, the Council was created to oversee religious activities in the Jail. The Council is made up of representatives of the religious organizations that were providing religious services to the Jail in 1979. At oral argument, counsel for defendant stated that there were nine Christian groups, one Jewish group, and one Muslim group represented on the Council and each group assigned one of their members to be a representative at Council meetings. The Council is charged with answering inmate requests for religious services and the individuals and groups providing religious services work under the supervision of a Council member. The Council controls 350 entrance passes allowing access to the Jail and distributes these passes to persons providing religious services in the Jail. To gain access to the Jail, a religious group could be recognized as a new group and be given a seat on the Council or it could affiliate with a group already seated on the Council. To gain recognition as a new group, a religious organization needs to present requests from a significant portion of the inmate population for the group’s services and show basic religious and philosophical differences from other organizations already represented on the Council. If a new organization was recognized and given a seat on the Council, the current Council members would have to give up some of their allotted entrance passes. More commonly, new religious organizations were placed under the aegis of a current Council member. The absence of Muslim services in Division One during Siddiqi’s residence there can be traced to a dispute over what Muslim group or groups should be given access to the Jail. Since 1979, the American Muslim Mission (“AMM”) had represented the Muslim faith on the Council. In June of 1983, representatives of the Muslim Community Center (“MCC”) contacted the Director by letter and asked whether they might provide Jumu’ah religious services in the Jail. The Director advised the MCC representatives to present their request to the Council. The MCC did not contact anyone on the Council. They renewed their interest in December of 1983 by again contacting the Director, who asked Reverend Durel of the Council to set up a meeting with MCC officials and William Sullivan, the Superintendent of Division One (“Sullivan”). At this meeting in March of 1984, the MCC representative asked to have his organization recognized as an independent member of the Council, unaffiliated with another organization. Sullivan responded by noting that the AMM already coordinated Muslim activity in the Jail and stated that the MCC should work under the AMM. At its next meeting, the Council itself expressed its agreement with Sullivan, determining the MCC should work under the auspices of the AMM. Three months later, in June of 1984, the MCC sent another letter to Reverend Durel again requesting independent recognition, claiming they were unable to work with the AMM. The Council reiterated its desire that the MCC work under the AMM and it was skeptical about having to choose between sects. The Council did request additional information from the MCC about its beliefs and tenets and invited its representative to attend the Council meeting scheduled for September 1984. No one from the MCC appeared at that meeting and the Council extended another invitation for the October meeting, still wanting the MCC to work through the AMM. At the October meeting the AMM representative, Yaqub Muhammad (“Muhammad”), and the MCC representatives reached an apparent agreement to cooperate in providing services. However, after the representatives of the two groups had left, the Council was informed by a third party that Muhammad was no longer authorized to speak on behalf of the AMM and was therefore unable to enter into any sort of agreement with the MCC. This apparent disorder in the Muslim community continued as the Council attempted to determine who was authorized to represent the AMM. During 1985, the AMM was dissolving and it did not name a new representative to the Council until July. This new representative received Council approval in October, after a thorough examination of credentials. Meanwhile, in November of 1984, the MCC had indicated its refusal to abide by the agreement made at the October 1984 meeting since it was unable to recruit a sufficient number of ministers to provide services at the Jail. From November 1984 until September 1985, no one from the MCC contacted the Council about providing services. It was during this period of turmoil that Siddiqi contacted the Director, stating that no Jumu’ah services were being conducted in Division One. The Council responded by explaining the problems caused by the divisions in the Muslim community. Uncertainty about who properly represented the AMM made it difficult to assign personnel to minister to all Muslim inmates. The Council told the plaintiff it was attempting to clear a new official representative who would take care of the problem. Siddiqi responded by demanding that a representative of the MCC, Abdudharr Muhammad Khalid Abdullah (“Abdullah”), be granted authorization to perform Jumu’ah services in Division One. The Council discussed Siddiqi’s request at its September 1985 meeting and asked Abdullah to attend its October meeting. Mr. Abdullah did not attend, but other representatives of the MCC came to what was described as a very volatile meeting. No agreements were reached, although the newly appointed liaison from the AMM agreed to assist the MCC members in gaining access to the prison. However, by the time regular Muslim services resumed in November, Siddiqi had already been transferred out of the Cook County Jail. II. DISCUSSION At trial, Siddiqi argued that the Jail’s refusal to recognize the MCC as a second Muslim group providing services prevented him from attending Muslim services during his time in the Jail. After the presentation of the evidence, the district judge and counsel for the parties discussed possible jury instructions. However, the judge did not present the final jury instructions to either counsel prior to closing arguments. The jury returned a verdict for the Director. The district court denied Siddiqi’s motion for judgment notwithstanding the verdict and Siddiqi filed this appeal. Siddiqi argues that the district court should have granted his motion for judgment notwithstanding the verdict and that a new trial should be ordered since the district judge failed to provide counsel with the jury instructions prior to closing argument in violation of Fed.R.Civ.P. 51. A. Judgment Notwithstanding The Verdict This court reviews a district court denial of a motion for judgment notwithstanding a jury verdict de novo. Bright v. Land O’Lakes, Inc., 844 F.2d 436, 441 (7th Cir.1988); Collins v. Illinois, 830 F.2d 692, 697 (7th Cir.1987). In this review, we must determine whether there is sufficient evidence, when combined with all inferences reasonably drawn, to support the jury’s verdict when the evidence is viewed in the light most favorable to the nonmoving party. See Cygnar v. City of Chicago, 865 F.2d 827, 835 (7th Cir.1989); Rakovich v. Wade, 850 F.2d 1180, 1188 (7th Cir.) (en banc), cert. denied, — U.S. -, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988); Christie v. Foremost Ins. Co., 785 F.2d 584, 585-86 (7th Cir.1986). This court will not reweigh or reevaluate the evidence — that task is reserved to the jury as factfinder. Cygnar, 865 F.2d at 835. We are charged with determining whether the evidence, taken as a whole, provides sufficient support for a jury verdict. Bright v. Land O'Lakes, 844 F.2d at 441. To review the verdict rendered by the jury, we must explore what standard needs to be applied to the Director’s conduct to determine whether there was adequate evidence to support the jury’s determination that the Jail did not violate Siddiqi’s right to free exercise. The Supreme Court has made it clear that “prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). Since inmates retain protections created by the first amendment, Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1972) (per curiam), the Court has found that a prisoner must be given a “reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.” Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam). While confinement does not strip a convicted prisoner of all constitutional rights, such rights are limited by the fact of incarceration and by valid penological objectives, such as rehabilitation, deterrence, and security. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). In this case, we must balance Siddiqi’s right to be afforded a reasonable opportunity to exercise his first amendment right against the legitimate penological goals of the Jail. Hadi v. Horn, 830 F.2d 779, 783 (7th Cir.1987); Caldwell v. Miller, 790 F.2d 589, 596 (7th Cir.1986). The Supreme Court has set out the standard for striking such a balance: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). See also O’Lone, 482 U.S. at 349, 107 S.Ct. at 2404; Hadi v. Horn, 830 F.2d at 785. This test is less restrictive than that ordinarily applied to infringements on constitutional rights in consideration of the need to give appropriate deference to prison officials, avoiding unnecessary judicial intrusion into security problems and other prison concerns. O’Lone, 482 U.S. at 349-50, 107 S.Ct. at 2404-05. In Turner and O’Lone, the Court identified some factors that are helpful in applying this reasonableness test: (1) whether there is a rational relationship between the regulation and the legitimate governmental interest behind the rule; (2) whether alternative means of exercising the right exist; (3) what impact accommodating the prisoner would have on other inmates, guards, and prison administration. O’Lone, 482 U.S. at 350-53, 107 S.Ct. at 2405-07. In Turner, the Court also found that although it is not necessary for the challenged regulation to pass the least restrictive alternatives test, the absence of ready alternatives is evidence of a regulation’s reasonableness. Turner, 482 U.S. at 90, 107 S.Ct. at 2262. Hadi v. Horn, 830 F.2d at 784. We must now apply this standard to the regulations and policy decisions that prevented Siddiqi from attending Jumu’ah. See Lane v. Griffin, 834 F.2d 403, 406 (4th Cir.1987) (test laid out in Turner applies equally to policy decisions of prison officials). Looking at the evidence presented to the jury, it is clear that there was sufficient evidence to uphold the jury’s verdict and affirm the denial of Siddiqi’s motion for judgment n.o.v. The Jail’s policies provided that religious ministration to inmates would be handled by the Council. The creation of the Council and the regulations used by the Council to determine who will be allowed into the Jail are rationally related to a “legitimate penological objective”— security in the Jail. Testimony at trial revealed that the Council was created to deal with security problems arising from the large number of religious ministers entering the Jail with little supervision. The Council’s main purpose is to coordinate giving credentials to recognized ministers. This court has stated that it is legitimate for prison officials to be concerned about possible security troubles arising from ministers entering the jail. Hadi v. Horn, 830 F.2d at 785. Use of the Council to screen applicants is rationally related to the legitimate objective of security. Siddiqi contends that the screening done by the Council is not legitimate because it favors established religions. Siddiqi claims that the Council’s membership was set in 1979 at its founding and no changes seem to be allowed, perpetuating Christian domination of the group. Siddiqi points to the fact that the Council refused to recognize a second Muslim group while at the same time it recognizes as many as nine separate Christian groups and argues that this shows bias and illegitimacy in the Council’s decision. The jury found otherwise, and it is clear that there was sufficient evidence in the record to support such a finding. Siddiqi does not account for the turmoil in the Muslim community that affected the Council’s decisions as to proper Muslim representation. There was also evidence that when offered a chance to minister at the Jail, the MCC was unable to recruit the necessary number of ministers. The lack of bias on the part of the Council is demonstrated by their subsequent decision to recognize the MCC and allow it to minister in the Jail. Adequate evidence exists to support the jury’s conclusion on this point. The second factor of the O’Lone decision also supports the jury’s verdict. The existence of alternatives in the Jail is an important but not controlling factor and we are guided in our analysis by the Court in O’Lone. In that case, prison officials implemented rules that effectively prevented Muslim inmates from attending Jumu’ah services. O’Lone, 482 U.S. at 345-46, 107 S.Ct. at 2402-03. In upholding those regulations, the Court examined the issue of available alternatives and noted that, while no alternatives to the Jumu’ah service itself existed, other alternatives were sufficient, such as the right to congregate and pray and be given different meals whenever pork is served in the cafeteria. Id. at 352, 107 S.Ct. at 2406. In this case, the jury was told about the special meals prepared during Ramadan, the month of fasting, and the alternatives to pork made available to Muslim prisoners. No evidence was shown that reflected any restriction on Siddiqi’s ability to practice his religion, save for the inability to attend Jumu’ah services and under this factor, the jury’s verdict must stand. Addressing the third factor, the effect of accommodation on the prison and its inmates, Siddiqi argues that since the Jail already accommodates the individual religious needs of inmates, it would require little extra effort to accede to his request. Siddiqi points out that there was testimony concerning efforts made to accommodate other prisoners, such as procuring special items for American Indian ceremonies and Buddhist ceremonies. Although this testimony is helpful, it does not answer the question of what effect accommodating Siddiqi will have on Jail administration or other inmates. Obtaining special equipment for prisoners has a far smaller impact on the workings of a Jail than allowing in an entirely new group of people without normal screening. It would also have been impractical to have taken Siddiqi to another division since such a transfer would have required the detailing of a number of guards and a high security risk. Although the price of accommodation may not be inordinately high, it is expensive enough to justify a jury determination under this factor. In addition, applying the extra factor established in Turner, we find no easily doable alternatives that would lead to a conclusion that the regulations and policies are irrational. The jury’s verdict was supported by sufficient evidence and the district court’s decision to deny the motion for judgment n.o.v. will not be disturbed. B. Rule 51 Siddiqi bases his second argument on Fed.R.Civ.P. 51 dealing with jury instructions, claiming that the district judge failed to inform counsel for the parties prior to closing arguments of the issue instruction he intended to give the jury. Siddiqi requests that we order a new trial to correct this error.
4156690-14756	MEMORANDUM OPINION ELLEN SEGAL HUVELLE, District Judge. Plaintiff Vernice Headen, proceeding pro se, has sued defendant Washington Metropolitan Area Transit Authority (“WMATA”) for retaliation, discrimination, defamation, wrongful termination, emotional distress, and hostile work environment. Before the Court is WMATA’s motion to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Having reviewed the complaint, the memoranda filed by the parties, and applicable case law, the Court will grant defendant’s motion and dismiss plaintiffs claims. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff was employed as a traffic clerk at WMATA. (Compl. at 2.) In the fall of 2006, she alleges that she informed “The Department of Civil Rights within WMA-TA” that her supervisor had “position[ed] his crouch [sic] in her face” on three occasions and that another traffic clerk made unwanted sexual comments to her. (Id. at 2.) Plaintiff contends that the situation was investigated in October 2006. (Id.) However, she alleges that although assistant managers met with her and another employee regarding the harassment, there was no meeting with the managers, plaintiff, and the supervisor whom she had accused. (Id.) She alleges that on October 13, 2006, she received a letter from the “Director of Civil Rights at WMATA,” stating that her allegations did not fall within the purview of WMATA’s non-discrimination policy and that WMATA was unable to substantiate her allegations. (Id.) On March 4, 2008, plaintiff alleges that she was suspended from work for one week for failure to follow rules and insubordination. (Id.) She alleges that the punishment she received for her violations is at odds with the December 2007 traffic clerk manual; plaintiff maintains that according to the reprimand chart in the manual, she should have received a written warning only. (Id. at 3.) On April 25, 2008, plaintiff alleges that the Acting Assistant Manager informed the Director of the Employee Assistance Program (“EAP”) that plaintiff was “psychologically imbalanced and unable to continue work for WMATA.” (Id.) Plaintiff states that she was subsequently evaluated and cleared to return to work by the EAP, but that the Acting Assistant Manager stated that he did not agree with the assessment and wanted plaintiff to receive an independent psychological evaluation, with plaintiff bearing the $2,600.00 cost, before WMATA would pay her for the week during which she was suspended. (Id.) Plaintiffs complaint does not state whether the evaluation occurred. Plaintiff alleges that on May 22, 2008, she was “threatened” by the supervisor whom she accused of harassment with a post-incident drug test for not including her name on a form. (Id.) Plaintiff claims this same supervisor then sent her home for asking to take a break and to use the restroom, telling her that she would never be allowed to use the restroom while working at WMATA. (Id.) In June 4, 2008, plaintiff was terminated from employment with WMATA. (Id.) Plaintiff claims that the dismissal letter she received did not state the grounds for her termination, but only lists a series of incidents which plaintiff “supposedly had done.” (Id. at 3-4.) Plaintiff claims she had not been given any form of “progressive” discipline as required by the traffic clerk manual, and that the Acting Assistant Manager admitted as much in “sworn” testimony in December 2008. (Id. at 4.) Plaintiff also claims that the list of incidents in the termination letter had been compiled by the Acting Assistant Manager while he was not in management capacity. (Id.) Plaintiff also claims that she received investigation reports from the aforementioned supervisor in someone else’s handwriting. (Id.) Plaintiff states that when she complained about the different handwriting to management, she was told that it “did not matter who wrote the information” so long as the form had been completed and signed by her supervisor. (Id.) Plaintiff next claims that her supervisor gave her “misleading directives” that required her to violate WMATA policy. (Id.) Plaintiff maintains that her supervisor threatened her with a reprimand for insubordination to force her to follow the “directives,” despite the fact that by following the directives, she faced punishment for violating WMATA policies. (Id.) Based on the above allegations, plaintiff seeks “back pay from the date of termination until the case is settled.” (Id. at 6.) She also requests punitive damages and other damages related to her claims for retaliation, discrimination, defamation, and emotional distress. (Id. at 6-7.) She filed her complaint on May 14, 2010. On that day, this Court issued a Memorandum and Order Staying the Case, requiring plaintiff to produce a right to sue letter indicating a final determination of plaintiffs charge. (Mem. & Order, May 14, 2010, at 2, 2010 WL 1946894.) On June 10, 2010, plaintiff filed a response to the Court’s Order, attaching what she claimed was the only information she had received from defendant regarding her case. (PI. Resp. to Court Order, June 10, 2010.) Plaintiff claimed that the attached “is the only information that [she] received from WMATA informing [her] that the Equal Employment Opportunity Commission would be notified of the complaint.” (Id.) However, the only attach ment was the October 13, 2006 letter, referenced above, from defendant to plaintiff, stating that the Office of Civil Rights acknowledged her allegations of sexual harassment and noting the meeting plaintiff had with an EEO & Dispute Resolution Officer. (Id., Ex. A.) Although the letter states that the author would forward a copy to an Employee Relations Officer at WMATA, there is no suggestion that the letter would be sent to the EEO or that an EEO complaint was being filed. (Id.) On July 14, 2010, the Court issued a second Memorandum Opinion, noting that although nothing in the response plaintiff submitted suggests that plaintiff had filed a claim before the EEOC, the Court would allow plaintiffs complaint to proceed. (Mem. Op. July 14, 2010, at 1-2, 2010 WL 2775023.) The Court based its decision on plaintiffs pro se status and the ability of defendant to plead failure to exhaust as an affirmative defense. (Id. at 2.) The stay was lifted, and WMATA subsequently filed its motion to dismiss. Defendant argues that WMATA is not subject to a lawsuit under 42 U.S.C. § 1983 and that plaintiff failed to exhaust her administrative remedies before the EEOC before filing her complaint. (Mem. of P. & A. in Supp. of Def. WMATA’s Mot. to Dismiss [“Def.’s Mem.”] at 2-3.) ANALYSIS 1. STANDARD OF REVIEW “[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Marsoun v. United States, 591 F.Supp.2d 41, 43 (D.D.C.2008) (quoting Seheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)); see also Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d 672, 681 (D.C.Cir.2009) (‘“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.’ ”) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). “In determining whether a complaint fails to state a claim [under Rule 12(b)(6) ], [courts] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [courts] may take judicial notice.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). The pleadings of pro se parties “[are] to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (internal quotation marks and citations omitted). Nonetheless, “[a] pro se complaint, like any other, must present a claim upon which relief can be granted by the court.” Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981); see also McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”). II. FEDERAL CLAIMS Although plaintiff makes multiple claims against WMATA, her only reference to a federal statute is her claim that the complaint is “based off of 42 U.S.C. § 1983.” (Compl. at 1.) As noted, based on allegations in the complaint, the Court has pre sumed that plaintiff also intends to bring a claim under Title VII. A. 42 U.S.C. § 1983 Defendant contends that WMATA cannot be sued under § 1983 because WMA-TA possesses the sovereign immunity of each of its signatory states. (Def.’s Mem. at 2.) The Court agrees. Section 1983 states that “[e]very person” who, under the color of state law, subjects another to the deprivation of any constitutional rights shall be liable to the injured party. 42 U.S.C. § 1983. However, the Supreme Court has held that “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). WMATA is an interstate compact agency of the states of Maryland and Virginia as well as the District of Columbia, and these entities conferred upon WMATA sovereign immunity. Moris v. WMATA, 781 F.2d 218, 219-20 (D.C.Cir.1986); Lucero-Nelson v. WMATA, 1 F.Supp.2d 1, 6 (D.D.C.1998). In light of the Supreme Court’s decision in Will, WMATA’s sovereign immunity means that the Authority cannot be sued under § 1983. E.g., James v. WMATA, 649 F.Supp.2d 424, 429 (D.Md.2009) (“WMATA is not subject to claims arising under Section 1983 because it is not a ‘person’ for purposes of that statute.”); Plater v. Dist. of Columbia Dep’t of Transp., 530 F.Supp.2d 101, 104 (D.D.C.2008) (dismissing § 1983 claim against WMATA because it “is not a ‘person’ under § 1983 and th[us] it retains sovereign immunity against suits brought under § 1983”); Disability Rights Council of Greater Wash. v. WMATA, 239 F.R.D. 9, 20 (D.D.C.2006) (dismissing § 1983 claim “as to WMATA because it is not a ‘person’ and therefore cannot be sued under the statute”); Lucero-Nelson, 1 F.Supp.2d at 7 (dismissing § 1983 claim against WMA-TA because “as an arm of the state WMA-TA is not a ‘person’ within the meaning of the statute”). Accordingly, to the extent that plaintiffs complaint includes claims based on § 1983, these claims are dismissed. B. Title VII The Court also concurs with defendant’s argument that to the extent plaintiff brings claims under Title VII, these claims must also be dismissed for failure to exhaust administrative remedies. (Def.’s Mem. at 3.) Title VII requires that an employee exhaust her administrative remedies by filing a claim with the EEOC prior to filing suit in the district court. 42 U.S.C. § 2000e-5(e)(l), (f)(1); Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir. 1995) (“Title VII requires that a person complaining of a violation file an administrative charge with the EEOC and allow the agency time to act on the charge.”). “Only after the EEOC has notified the aggrieved person of its decision to dismiss or its inability to bring a civil action within the requisite time period can that person bring a civil action herself.” Park, 71 F.3d at 907. “Although it is true that the administrative charge requirement should not be construed to place a heavy technical burden on ‘individuals untrained in negotiating procedural labyrinths,’ ” id. (quoting Loe v. Heckler, 768 F.2d 409, 417 (D.C.Cir. 1985)), “it is also true that ‘the requirement of some specificity in a charge is not a mere technicality.’ ” Id. (quoting Rush v. McDonald’s Corp., 966 F.2d 1104, 1111 (7th Cir.1992)). Here, plaintiff has not provided the Court with a “right-to-sue” letter from the EEOC, nor does her complaint contain any indication that she ever contacted or filed a complaint with the EEOC, much less within the time period contemplated by the statute. See 42 U.S.C. § 2000e-5(e)(l). In her response to WMATA’s motion to dismiss, Ms. Headen maintains that the October 13, 2006 letter attached to her June 10, 2010 filing “was all that WMATA would share with the plaintiff regarding the situation at hand.” (Pl.’s Resp. to Dismissal at 2.) She then states that she “followed up several times with all departments within WMATA so she could file her complaint before exhausting her time with [EEOC] yet, WMATA continued to allude [sic] her request.” (Id.) However, she does not state that she approached EEOC about bringing charges against WMATA, nor does she allege that she was unaware of her obligation to contact EEOC in order to initiate a complaint against WMATA. Cf. Harris v. Gonzales, 488 F.3d 442, 445 (D.C.Cir.2007) (reversing dismissal of Title VII claim where plaintiff contacted EEOC counselor after 45-day limit, alleging that she lacked constructive notice of 45-day requirement). And, plaintiff’s claim that WMATA told her that “she must take her concerns to the management within the department she worked” (PL’s Resp. to Dismissal at 2) is insufficient to relieve her of her obligation to file a complaint with EEOC, because “WMATA’s internal procedures offer a separate forum for pursuing discrimination complaints, which does not displace ... Title VII filing requirements.” Washington v. WMATA, 160 F.3d 750, 753 (D.C.Cir.1998) (even where WMATA “touted its internal procedure as the appropriate forum for resolving discrimination complaints,” plaintiff was not entitled to equitable tolling because he “demonstrated no affirmative misconduct on the part of W^VLATA,” nor did he show “that WMATA’s decision letter disposing of his claim was misleading”). Nearly four years have passed since the first events alleged in plaintiffs complaint, and over two years have passed since plaintiffs termination. There is no indication that plaintiff sought to contact EEOC or file a complaint during that time. The Court concludes that plaintiffs failure to comply with Title VII’s procedures and deadlines deprives this Court of jurisdiction of her claims under that statute. III. STATE LAW CLAIMS Defendant seeks dismissal of plaintiffs entire case on the grounds that her § 1983 and Title VII claims are invalid. (Def.’s Mem. at 4.) However, the complaint also appears to contain three state law claims in addition to claims under Title VII and § 1983: defamation, wrongful termination, and intentional infliction of emotional distress. (Compl. at 6-7.)