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848335-8797

SOLOMON, District Judge: Appellant, Herbert Leo Bushaw, was indicted and convicted by a jury of attempted bank robbery, in violation of 18 U.S.C. § 2113(a). In this appeal, Bushaw contends that the evidence was insufficient to sustain a conviction and that the trial court erred in permitting the government to introduce in evidence inadmissible and prejudicial statements, under the guise of impeaching its own witness. For the reasons hereafter stated, we find no reversible error. On February 7, 1964, an attempt was made to rob a branch of the Bank of America located in the Springdale Shopping Center, Huntington Beach, California. At the time, Bushaw was employed at Beverly Brisson’s Carpet Shop, which was also in the Springdale Center. A portion of the carpet store was used as a Post Office substation. About two weeks before the robbery attempt, an unidentified male telephoned the manager of a restaurant in the shopping center and asked if the manager knew of someone with a car who wanted to make fifteen or twenty dollars. The manager inquired among a group of youths, and Dennis “Rocky” Gomes came to the telephone. The caller told Rocky that he ran a delivery service and needed someone to deliver receipts from a bowling alley to the bank. Rocky agreed to make a delivery, but the exact details were not related to him until February 5, when the delivery was scheduled for the next day. Later, the job was postponed for 24 hours, “because the receipts were not ready.” The caller instructed Rocky to take a briefcase from a specified place in the bowling alley to Mr. Svoboda, the manager of the bank, at 1:45 P.M., and then return it to the bowling alley. The caller told Rocky that he would be paid at a nearby filling station. Rocky became suspicious, and both the police and the FBI were notified. On February 7, at the FBI’s request, Rocky carried out the caller’s instructions; he drove to the bowling alley, entered, and found the briefcase. He carried it and two attached envelopes to his car, where a policeman was hiding. As Rocky drove to the bank, the policeman cheeked the briefcase and envelopes; he found that the briefcase was empty, that one envelope contained a blank paper and the other, a key to the briefcase. At the shopping center, Rocky parked his car, took the briefcase into the bank and gave it to Mr. Svoboda. At that moment, Mr. Svoboda received a telephone call. The caller threatened the manager’s family unless he placed $21,-000 in the briefcase. Svoboda filled the briefcase with blank deposit slips and gave it to Rocky, who returned to the bowling alley, where he replaced the briefcase. He then drove to the filling station to collect his pay; no one ever came to pay him. On February 6, the day originally set for the delivery, Bushaw was alone in the carpet shop. Earlier he had informed his employer, Mrs. Brisson, that he had a carpet appointment at 1:30 P.M. with a Mrs. Carrison at 9202 La Poloma. (In fact, La Poloma Street had no number 9202, and no residents of the area were named Carrison.) At noon, Bushaw requested Mrs. Brisson’s permission to close the store and Post Office in order to keep the appointment. She first refused this request, but later granted it. However, Bushaw then told her that the appointment had been reset for February 7. On February 7, Bushaw, who had no driver’s license, was again alone in the store with no vehicle. About noon, he asked Mrs. Smith, Mrs. Brisson’s sister, to let him use her car in order to keep the carpet appointment. Mrs. Smith refused, but offered to drive Bushaw to his appointment, as she had done on previous occasions. He did not accept this offer. Instead, he borrowed a 1955 Packard from a barber in a nearby shop. On the day of the attempted robbery, police officers saw the 1955 Packard drive into the bowling alley parking lot. They watched Bushaw enter the bowling alley and walk directly to the men’s room. He was carrying a large tool box in his right hand, on which he wore a glove. Shortly thereafter, he came out with a briefcase, which he placed on the floor immediately adjacent to the door of the men’s room. Bushaw remained at the bowling alley until Rocky took the briefcase. Then, he ran to his borrowed car and drove it to the shopping center, where he entered the parking lot and drove to the area in front of the carpet store. Bushaw was next seen driving out of the shopping center parking lot just after Rocky had left the bank. Bushaw drove in the direction of the filling station, where Rocky was to be paid. However, he turned off and stopped at a vacant house. He talked to a woman next door, and told her that he had a carpet appointment at the vacant house. He then returned to the shopping center, where he parked the car and gave the keys to the barber. Later that afternoon, he was arrested at the carpet store. When Bushaw left the bowling alley, he did not take his toolbox from the men’s room. No one ever came to claim it or the briefcase which Rocky returned. However, just prior to his arrest, Bushaw told the barber that his toolbox had been stolen. The government’s evidence included a register receipt and a price tag, both for $3.97 plus 40(4 excise tax, from a K-Mart store. The register receipt was found in the carpet store truck Bushaw sometimes used; the price tag, in the 1955 Packard. The K-Mart manager testified that the register receipt and price tag showed a sale of a briefcase like the one used in the robbery. The government also introduced a glove found hidden in the carpet store which matched the one worn by Bushaw; a pad of paper found in the store which matched the blank paper found in the robbery envelope; and envelopes from the'postal substation which were identical to the robbery envelopes. The only evidence that Bushaw was not an active participant in the robbery attempt is his own testimony that he was an innocent pawn of a third person. Bushaw testified that an unidentified man arranged with him to make a delivery from the carpet store to .the bowling alley. After one postponement, the man appeared at the carpet store at 1:30 P.M. on February 7, carrying a briefcase. He told Bushaw that the briefcase had been exposed to radioactive material, which Bushaw testified was the reason he wore a glove and carried the briefcase inside his toolbox. Bushaw also testified that the stranger purchased two envelopes from the postal substation and borrowed a piece of paper from him. This alibi was not corroborated in any respect, and we think it barely credible. It is certainly insufficient to overcome the government’s evidence. But Bushaw argues that the government’s case is fatally defective because it failed to show that Bushaw made the intimidating telephone call to Mr. Svoboda or that Bushaw had time to make the call. To support this argument, Bushaw uses estimates of the times of various events testified to by a number of witnesses. Bushaw contends that these estimates show that he was under surveillance except for a period of less than two minutes. In his view, two minutes is too short a time to park a car, enter the locked carpet store, dial the telephone, talk to Mr. Svoboda, and return to the car. A single witness cannot be expected to recall the exact times at which various events occurred. Here, where a reconstruction of the events depends upon the testimony of a number of witnesses, each of whom observed a different event and fixed its time, Bushaw’s analysis is hardly conclusive. The jury could have found that he was out of surveillance for a period of five or even ten minutes. In any event, whether Bushaw had time to call Mr. Svoboda was a question of fact for the jury. The government does not have to prove its case by direct evidence alone. Here, we think that the government’s evidence, both direct and circumstantial, overwhelmingly supports the jury’s conclusion that Bushaw made the telephone call and planned this robbery attempt. Bushaw’s second ground of appeal raises a more substantial problem. On the night of the robbery attempt, three FBI agents called on Mrs. Brisson. The interview resulted in a signed statement in which Mrs. Brisson said that Bushaw had often tried to talk her into marriage and had recently asked if she would change her mind if he came into some money. He also talked of fixing up the carpet shop. Mrs. Brisson later repudiated the statement and told the United States Attorney that she would not give such testimony at the trial. Nevertheless, the government called her as a witness, and when she failed to testify in accordance with her statement to the FBI, it was used to impeach her. The defense objected on the ground that the government was not surprised by Mrs. Brisson’s testimony. The trial court overruled the objection.

1469882-11432

OPINION OF THE COURT GIBBONS, Circuit Judge: The Commonwealth of Pennsylvania, intervenor, and the County of Allegheny, intervening appellant, appeal from a February 3, 1982 order of the District Court for the Western District of Pennsylvania, 531 F.Supp. 627, concerning the production of state prisoners for testimony in a civil action pending in that court. That order provides that the state custodian will be in compliance with writs of habeas corpus ad testificandum for such prisoners if at his expense he transports the prisoners to the state custodial institution nearest the federal courthouse. It directs that the United States Marshal be responsible for transporting the prisoners to and from that custodial institution for court appearances. The United States Marshal is also an intervenor, and the appellee in this appeal. The Commonwealth contends that the entire responsibility for and expense- of production of state prisoners for testimony in a federal civil action should be imposed upon the United States Marshal. A second order, dated February 12, 1982, designates the Allegheny County Jail as the nearest state custodial institution for trials at Pittsburgh. Allegheny County contends that, whether or not the Commonwealth custodian is responsible for production of the prisoners, the burden of housing them while they are in Pittsburgh should not have been imposed on it. We affirm. I. The orders appealed from were entered in a pending civil action which has not yet resulted in a final judgment. The Commonwealth contends, however, that the order from which it appeals is a final order within 28 U.S.C. § 1291. Since it fully resolves a dispute between the Commonwealth and the United States Marshal Service, we agree that it is a final order collateral to the main action. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). A prior panel of this court granted Allegheny County’s motion for leave to intervene in the appeal. Thus both appellants are properly before us. II. The trial court’s opinion discloses that until October 1981 it was the historical practice in the Western District of Pennsylvania for the Commonwealth to transport a state prisoner whose testimony was required in a federal court to the jail nearest the federal courthouse. The Commonwealth would then notify the United States Marshal, who assumed the responsibility for transporting the prisoner to the federal courthouse, maintaining custody and returning him to state custody when his presence was no longer required. In October 1981 the United States Marshal Service, faced with severe budgetary limitations, intervened in this action and requested the court to direct its orders for the production of prisoner witnesses directly to the Commonwealth custodian. The Commonwealth responded by intervening and urging that it be relieved of all responsibility for their production. After full briefing and argument, in which the Attorney General appeared for the Commonwealth, the court entered the orders appealed from. Allegheny County was not separately represented in the district court, and the Attorney General joined with it in moving for intervention in this court. Although the Marshal Service sought to be relieved entirely from responsibility for state prisoner witnesses, it has not cross-appealed. Thus the limited question before us is whether the court erred in holding that state custodians must respond to writs of habeas corpus ad testificandum at least to the extent of bringing the required witnesses to the county jail nearest the federal courthouse and informing the Marshal Service that they are available for court appearances. The form of the order disposes of the Allegheny County appeal. The County is in no way aggrieved by it. It merely states that delivery to the county jail shall be deemed to be compliance with writs of habeas corpus ad testificandum. It does not direct the county officials to accept state prisoners for that or any other purpose. If the Commonwealth finds itself powerless to compel Allegheny County to cooperate (a contingency which seems, to say the least, remote) then the Commonwealth custodians will have to respond to writs of habeas corpus ad testificandum in some other manner. It will not be able to rely upon the February 3, 1982 order. Nor does the February 12,1982 order, clarifying that of February 3 by specific reference to the Allegheny County Jail, impose any obligation on the County. It is not a party aggrieved by either order. The Commonwealth, however, is aggrieved by the trial court’s denial of its motion to be relieved from any obligation to respond to a writ of habeas corpus ad testificandum except by delivering the prisoner to a United States Marshal at the place of confinement. It contends that the trial court lacks authority to impose any other duty on its custodians. The Commonwealth concedes, as it must, that read together, 28 U.S.C. § 2241(c)(5), the habeas corpus statute, and 28 U.S.C. § 1651(a), the All Writs Act, give federal courts authority to issue writs of habeas corpus ad testificandum to compel the attendance of prisoner witnesses. It contends, however, that this undoubted power is circumscribed by a rule, of unspecified origin, that the court cannot compel a non-party at its own expense to transport prisoners. There is no such rule. Witnesses required for civil proceedings in the federal courts are subject to compulsory process. Fed.R.Civ.P. 45(e). The only limitation, other than geographic, is that the witness be tendered the fees and mileage specified by statute. Fed.R.Civ.P. 45(c); 28 U.S.C. § 1821. The fees are modest, and attendance frequently imposes serious financial burdens on witnesses. They must nevertheless respond without compensation, for in our society the court’s need for witness testimony is recognized as an ample justification for imposing such a burden. If, therefore, the witnesses in question were not in state custody, their testimony would be compellable by subpoena. Because they are in state custody, subpoena process, which runs only to the witness, cannot be effective. The only effective process will be one which runs to the custodian. The problem is hardly a new one. In section 14 of the Judiciary Act of 1789 Congress authorized the federal courts “to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” The authority to issue writs of habeas corpus was limited by a proviso that it would extend only to prisoners in federal custody, but that proviso was itself qualified by an exception for prisoners “necessary to be brought into court to testify.”. 1 Stat. 73, 81-82. Thus at the outset of their existence the federal courts were granted the express authority to issue writs of habeas corpus ad testificandum for the production of state prisoners. The provisions of section 14 of the 1789 Act, carried forward, are now codified at 28 U.S.C. § 1651(a) and 28 U.S.C. § 2241(c)(5). See, e.g., United States v. Hayman, 342 U.S. 205, 221, 72 S.Ct. 263, 273, 96 L.Ed. 232 (1952); Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948); Adams v. U. S. ex rel. McCann, 317 U.S. 269, 274, 63 S.Ct. 236, 239, 87 L.Ed. 268 (1942). At no time has that authority ever been qualified by a requirement that the respondent custodian, state or federal, be compensated for compliance with the writ. The Commonwealth urges that 28 U.S.C. § 569(b) is such a qualification. That statute provides that “United States Marshals shall execute all lawful writs, process and orders issued under authority of the United States.” The United States marshals have had that duty since 1789. 1 Stat. 73, 87. The United States Marshal Service urges, we think correctly, that this obligation arises with respect to a writ of habeas corpus only when a custodian refuses to obey a writ. The fact that Congress has from the beginning provided for executive branch enforcement of federal judicial process does not imply that state officials are free to disregard such process absent the use of executive branch coercion. The district court, in justification of its ruling that state custodians could comply with the writ by delivering prisoners to. the nearest county jail, cited 28 U.S.C. §§ 567(2) and 571. Section 567(2) provides that each United States Marshal shall be allowed “the expense of transporting prisoners, including the cost of necessary guards and the travel and subsistence expense of prisoners and guards.” Section 571 designates the United States Marshal as the disbursing officer for the United States Attorneys and for federal court personnel. Plainly the latter section is irrelevant to the instant problem. As to the former, the Marshal Service contends that it refers only to federal prisoners held for trial or remanded on sentence to the custody of the Attorney General. We note that in listing the activities of the United States Marshal Service, 28 C.F.R.. O.lll(j) refers to “prisoners .. . transported by the United States Marshal Service under cooperative or intergovernmental agreements.” The Marshal Service’s interpretation here may, perhaps, be more restrictive than that encompassed by the regulations. Nevertheless, that the Marshal may carry out such functions is not authority for him to compensate state officials for performing the same task. Nor does section 567(2) act as an authorization for the Marshal to relieve state custodians of the obligation to respond to writs of habeas corpus ad testificandum by producing the witness at the place designated in the writ. In Ballard v. Spradley, 557 F.2d 476 (5th Cir. 1977), the court was presented with a situation quite similar to that now before us. The Ballard court approved an arrangement which required the state to transport its prisoners to the local county jail. The marshal took custody of the prisoner at that point and returned him there after his presence was no longer required in court. The court of appeals held that section 567 authorized payment to the marshal for his services. That holding, however, does not authorize payment to the state. We reiterate that section 567(2) cannot be read as an authorization for the marshal to relieve state custodians of the obligation to respond to writs of habeas corpus ad testificandum by producing the witness at the place designated in the writ. One other statute bears mention. “The United States marshal of each district is the marshal of the district court .. . and may, in the discretion of the respective courts, be required to attend any session of court.” 28 U.S.C. § 569(a). This statute quite clearly authorizes the district court to require the attendance of the marshal at any judicial proceeding, including any proceeding at which the testimony of a state prisoner may be required. It seems plain, then, that the court has authority to direct the marshal to take prisoner witnesses into custody during the time their attendance at court is required. Because the Marshal’s Service has not filed a cross-appeal, we are not required to decide whether section 569(a) provides authority for a direction, in the interest of courthouse security, that prisoner witnesses be taken into custody at a point outside the courthouse.

4286488-24955

Opinion dissenting-in-part filed by Circuit Judge MAYER. MOORE, Circuit Judge. Honeywell International, Inc. and Honeywell Intellectual Properties, Inc. (collectively, Honeywell) appeal from a final judgment of the U.S. Court of Federal Claims. The Court of Federal Claims held that the government infringed independent claim 2 of the patent-in-suit but that this claim is invalid. The Court of Federal Claims also held that Honeywell lacks standing on its claim for just compensation under the Invention Secrecy Act and that the first sale doctrine precludes Honeywell from recovering damages for one particular infringing system. For the reasons set forth below, we reverse and remand for the trial court to resolve the government’s defense related to pre-issuance damages under the Invention Secrecy Act and to determine damages. BackgRound The patent-in-suit is U.S. Patent No. 6,467,914 B1 (the '914 patent), and it relates to passive night vision goggles (NVGs) that are compatible with a full color display when both are used in an aircraft cockpit. See '914 patent col.l 11.19-21, col.2 11.1-5. NVGs operate by amplifying available light, specifically light having a relatively long wavelength (e.g., red and infrared light). See id. col.l 11.36-38. Thus cockpit displays that emit this light, specifically red warning lights, can overwhelm NVG sensor elements and lead to disruption of vision through the NVGs. Id. col.l 11.38-41. Still, “[i]t is important that the display indicators remain illuminated, not only for the benefit of the crewmen who are not wearing [NVGs], but also because those using the goggles will typically view the instruments by looking under the goggles.” Id. col.l 11.42^6. Prior art solutions involved eliminating and/or dimming red and infrared light from cockpit displays. But filtration used to eliminate this light “must be very efficient because small amounts of light within the active frequency range of the [NVGs] will overwhelm the [NVGs].” Id. col.l 11.51— 54. In addition, “[t] he selective filtration of light according to wavelength generally prevents the use of full color displays ... because frequencies at the lower end of the visible spectrum overlap with those frequencies which are received by the [NVGs].” Id. col.l 11.63-67. This second problem is particularly significant because it prevents the use of red warning lights, which are at the lower end of the visible spectrum, in cockpit displays. Furthermore, with respect to dimming light that is capable of overwhelming NVG sensor elements, the light must be dimmed to such a degree that it is no longer visible by crewman not wearing NVGs and by persons looking under the NVGs. In the 1980s, the government developed a standard governing interior cockpit lighting that also addressed the problem of NVG compatibility in cockpits having full color displays. As witnesses testified at trial, it was important for the government to retain red light in cockpits, particularly for use as warning lights. For example, Dr. Harry Lee Task, a member of the committee developing the military’s corresponding specification, testified that because red indicates warning “if at all possible the MIL spec which was in consideration should be such that it would retain red and yellow in the cockpit.” J.A. 501730 (explaining that “warning is associated with red and amber is associated with caution”). And Col. William S. Lawrence, Honeywell’s expert, testified that “red has always been perceived as the color that denotes danger and we find, as pilots and test pilots, red to be extraordinarily valuable in that role. The immediate perception of danger is crucial to survival and we want red in the cockpit.” J.A. 622806. Nevertheless, in January 1986, the government issued a military specification (MILL-85762) that prohibited the use of red light in NVG-compatible cockpits. On October 10, 1985, Allied Corporation filed Patent Application No. 06/786,269 (the '269 application), which taught a way to continue to have red light in NVG-compatible cockpits. Pursuant to the Invention Secrecy Act, David McLure, a Naval Air Systems Command engineer, reviewed this application in March 1986 and concluded that a secrecy order should be imposed. Notably, Mr. McClui-e served on and eventually chaired the government committee charged with i"evising MIL-L-85762. After Mr. McClure reviewed the '269 application, the government revised its military specification to permit the use of red light in NVG-compatible cockpits. The PTO imposed secrecy orders on the '269 application, which prevented the patent from issuing, every year until 2000. By this time, Allied Corporation had become AlliedSignal Inc., which then merged with Honeywell Inc. to form Honeywell International, Inc. This latter entity amended the '269 application, which then issued as the '914 patent. The invention claimed in the '914 patent permits the use of NVGs in cockpits having full color displays (including red light) without the aforementioned problems associated with the prior art. In the claimed invention, a local color display emits blue, red, and green light. A combination of filters prevents the red light from disrupting vision through the NVGs. Specifically, one filter passes only a narrowband (i.e., a narrow range of frequencies) of red light from the display; another filter at the NVG blocks that narrowband of red light and passes all other ambient red light. See '914 patent col.4 11.54-57, col.5 11.4-8, col.5 11.13-15. Thus the narrowband of red light passed from the display does not reach (and overwhelm) the NVG sensor elements. Figure 3 of the '914 patent illustrates this combination of filters. Accordingly, red warning lights inside the cockpit do not disrupt vision through the NVGs, pilots can look under NVGs to view the warning lights, and crew members not wearing NVGs can see these lights as well. In 2002, about two months after the '914 patent issued, Honeywell filed a complaint against the United States. Honeywell’s Amended Complaint seeks compensation under the Invention Secrecy Act for pre-issuance use of the invention and under 28 U.S.C. § 1498(a) for post-issuance infringement of at least independent claims 1 and 2. Relevant to this appeal, the Court of Federal Claims construed disputed claim terms, see Honeywell Int’l, Inc. v. United States, 66 Fed.Cl. 400 (2005) (Claim Construction Order), and held a trial on the issue of infringement by three accused systems: (1) the Color Multifunction Display (CMFD) and NVGs in the F-16 aircraft, (2) the Radar Display Unit (RDU) and NVGs in the C-130H aircraft, and (3) the Color Multifunction Display Unit (CMDU) and NVGs in the C-130J aircraft. The court determined that all three accused systems infringed claim 2 — literally and under the doctrine of equivalents — but that claim 1 and claim 3, which depends from claim 2, were not infringed. See Honeywell Int’l, Inc. v. United States, 70 Fed.Cl. 424 (2006) (Infringement Order ). The Court of Federal Claims then held separate trials on Honeywell’s claim under the Invention Secrecy Act, on the government’s infringement defenses, and on damages. Ultimately, the court concluded that claim 2 is invalid under 35 U.S.C. § 103(a) and, in the alternative, the written description requirement of 35 U.S.C. § 112, ¶ 1. See Honeywell Int’l, Inc. v. United States, 81 Fed.Cl. 514, 538-72 (2008) (Invalidity/Defenses Order). The Court of Federal Claims also determined that Honeywell lacks standing under the Invention Secrecy Act because, according to the court, the '914 patent did not issue upon an application that was subject to a secrecy order pursuant to 35 U.S.C. § 181. See Honeywell Int’l, Inc. v. United States, 81 Fed.Cl. 224 (2008) (Invention Secrecy Act Order). Lastly, the Court of Federal Claims concluded that the first sale doc trine precludes Honeywell from recovering damages from the government for use of infringing CMFDs and NVGs in the F-16 aircraft because Honeywell Inc. manufactured and sold the CMFDs at issue. See Invalidity/Defenses Order at 576-77. The Court of Federal Claims entered judgment in favor of the government, and Honeywell appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(3). Discussion This appeal raises issues relating to invalidity, standing under the Invention Secrecy Act, and the first sale doctrine. We address each issue in turn. I. Invalidity The Court of Federal Claims found that the government proved by clear and convincing evidence that claim 2 of the '914 patent is invalid. Claim 2 recites the following: 2. A display system for use in association with a light amplifying passive night vision aid and a local color display including a local source of light having blue, red, and green color bands, comprising: (a) a plurality of filters at the local color display including (1) a first filter for filtering the blue color band of the local source of light; (2) a second filter for filtering the green color band of the local source of light; and (3) a third filter for filtering the red color band of the local source of light and passing a narrowband of the red color band; and (b) a fourth filter which filters light at the night vision aid, said fourth filter cooperating with said plurality of filters to substantially block at least said narrowband of the red color band from being admitted to the night vision aid. The Court of Federal Claims based its invalidity determination on 35 U.S.C. § 103(a) and, in the alternative, the written description requirement of 35 U.S.C. § 112, ¶ 1. A. Obviousness A patent shall not issue “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103(a); see KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406-07, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007) (“If a court ... concludes the claimed subject matter was obvious, the claim is invalid under § 103.”). Obviousness is a question of law, which we review de novo, with underlying factual questions, which we review for clear error following a bench trial. See Scanner Techs. Corp. v. ICOS Vision Sys. Corp. N.V., 528 F.3d 1365, 1379 (Fed.Cir.2008). What a particular reference discloses is a question of fact. See Para-Ordnance Mfg., Inc. v. SGS Imps. Int’l, Inc., 73 F.3d 1085, 1088 (Fed.Cir.1995). The Court of Federal Claims held that claim 2 of the '914 patent would have been obvious to a person of ordinary skill at the time of the invention. Invalidity/Defenses Order at 538-67. The court’s obviousness determination involved five prior art references. The first reference (Uchida) is an article authored by Tatsuo Uchida, titled “A Liquid Crystal Multicolor Display Using Color Filters,” and presented at the First European Display Research Conference held on September 16-18, 1981 in Munich, Germany. The second reference (Stolov) is U.S. Patent No. 4,368,963, titled “Multicolor Image or Picture Projecting System Using Electronically Controlled Slides” and naming Michael Stolov as the sole inventor. The third reference (Boehm) is a paper authored by Dr. H.D.V. Boehm, titled “The Night Vision Goggle Compatible Helicopter Cockpit,” and presented at the Tenth European Ro-torcraft Forum held on August 28-31,1984 in The Hague, The Netherlands. The fourth reference (Verney) is an article authored by Jay F. Verney, titled “Aircraft Lighting Systems,” and presented at the American Helicopter Society’s 41st Annual Forum Proceedings held on May 15-17, 1985 in Fort Worth, Texas. The fifth reference (the German patent application) is German Patent Application No. DE 33 13 899 Al, published on October 18, 1984. The Court of Federal Claims found that Uehida and Stolov each disclose elements (a)(1) and (2) of claim 2. The court found that Boehm discloses elements (a)(3) and (b). The court also found that Verney discloses element (a)(3) and that the German patent application discloses element (b). Furthermore, the Court of Federal Claims found that it would have been obvious to combine these prior art references. Honeywell argues that the Court of Federal Claims was clearly erroneous in finding, among other things, that Boehm and Ver-ney each disclose element (a)(3). Element (a)(3) of claim 2 recites “a plurality of filters at the local color display including ... (3) a third filter for filtering the red color band of the local source of light and passing a narrowband of the red color band.” The Court of Federal Claims construed “local color display” and “color bands” to require perceptible red light. Claim Construction Order at 444; id. at 466 (“ ‘color bands’ ... ‘include the range of wavelengths, within which the colors blue, red, and green are visible to the human eye ’ ” (emphasis added)). Before the Court of Federal Claims, the parties’ disputes regarding infringement and invalidity raised the issue of whether the claimed invention requires the passing of perceptible red light. With respect to claim 1, the court explained that this claim requires the “local color display” to emit perceptible light within the red color band. Infringement Order at 464 (concluding that the designated displays emit perceptible light within the red color band). During the phase of the litigation relating to the government’s defenses, the Court of Federal Claims explained that this interpretation applies equally to claim 2. See Trial Tr. 17:25-18:15, Nov. 13, 2006. On appeal, the obviousness dispute turns upon whether claim 2 requires perceptible red light. Claim construction is a question of law, which we review de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-56 (Fed.Cir.1998) (en banc). Claim 2 — and specifically element (a)(3) — requires a local color display. The specification describes “[a] local color display which is ... viewable by the crew-member, although the crew-member would tend to avoid looking through the [NVG] while viewing the color local display.” 914 patent col.2 11.40-44. The specification continues to explain that “[t] he cockpit has several local displays such as [the aforementioned] color display, which are illuminated so as to be clearly visible without the use of the [NVG].” Id. col.2 11.57-59. In addition, figure 3 of the specification depicts a local color display with a local source of light that comprises red, green, and blue color bands. Id. col.4 11.40-41. The Court of Federal Claims’ undisputed construction of color bands requires light that is “visible to the human eye.” We conclude that the proper construction of local color display is that it must emit perceptible red light. Furthermore, element (a)(3) is a filter that passes a narrow band of this red light. The claimed invention addressed the need for red warning lights in NVG-compatible cockpits, and it is inconceivable that an aircraft would use warning lights that are not perceptible to the crew. In other words, there would be no point, in the context of this invention, to pass a narrow-band of red light that cannot be seen. The local color display emits perceptible red light, and element (a)(3) requires a narrow band of this perceptible red light to pass. We conclude, therefore, that element (a)(3) requires the passing of perceptible red light — i.e., red light which is visible to the human eye. In the context of obviousness, however, it appears as though the Court of Federal Claims deviated from its earlier construction with regard to claim 2. Specifically, the court stated that its claim construction “did not require the perception of the red primary of a full color display” and instead that the local color display requires only that “at least one color [be] perceptible.” Invalidity/Defenses Order at 545 (alteration in original). Importantly, the Court of Federal Claims’ obviousness determination is premised on the conclusion that element (a)(3), and in fact, claim 2, does not require the passing of perceptible red light. In light of the correct construction of element (a)(3), which requires the passing of perceptible red light, we conclude that claim 2 would not have been obvious to one of skill in the art. Neither Boehm nor Verney disclose passing perceptible red light. The government provided no evidence that either Boehm or Verney discloses perceptible red light. The government’s expert, Dr. Task, testified that “Boehm discloses a splitting of the red color band at about 710 nm,” but he did not testify that Boehm discloses the passing of perceptible red light. J.A. 623157. Honeywell presented unrebutted expert testimony from Mr. Tannas that graph IV of figure 3 does not disclose the passing of perceptible red light: Based upon the information contained in [Boehm, Uchida and Stolov], it cannot be shown that the LCD display of [Uchida] or the projection display of [Stolov] would pass a “narrowband of the red color band” if filtered with the BG 7 filter. These references contain no information regarding the emission spectrum of any light source that would be used to illuminate the LCD or projection display and no information regarding the emission spectrum of light emitted by the display after filtering with BG 7. Therefore it cannot be shown that the LCD display of [Uchida] or the projection display of [Stolov] filtered with BG 7 would emit light within the red color band or that such light would be perceptible. J.A. 622958. According to Mr. Tannas, “[b]ased upon its transmission spectrum, it appears to me that the BG 7 filter would suppress red to such a degree that any red light passing through the filter would not be sufficient to provide the red primary of a full color display.” J.A. 622958-59. This unrebutted expert testimony is consistent with various statements in Boehm. For example, according to section 3 of Boehm, which identifies problems of cockpit illumination, “[t]he main idea is to use only special green and blue illumination in the cockpit or switch off all lighting and use a special type of floodlight when necessary.” J.A. 605298. This requirement of “blue/ green lighting” is listed among “the most important factors for a NVG compatible cockpit.” Id. Moreover, Boehm mentions the filtering of “red and near [infrared]” light only with respect to incandescent lighting and discusses green/blue light with respect to lighting from the display. Boehm also states that “filtering conventional incandescent lighting with dyed-glass filters [such as BG-7] should be used sparingly.” J.A. 605302. Because the Court of Federal Claims’ analysis was premised on an erroneous claim construction, it clearly erred in finding that Boehm discloses element (a)(3) of claim 2. With respect to Verney, the Court of Federal Claims’ analysis was more limited. See Invalidity/Defenses Order at 546. First, the court relied on Dr. Task’s testimony that Verney “shows excellent transmission out to about 640 nm and measurable transmission out to about 700 nm.” J.A. 623178. Again there is no testimony on whether this would result in perceptible red light. Verney teaches the conventional wisdom that “red or white integral lighting systems cannot be activated while the pilot is using NVGs due to their adverse interaction.... To meet this deficiency, a new infrared free blue-green light has emerged as the basic type of light to be used in NVG applications.... ” JA. 623393. Though the government claims Verney discloses a transmission of wavelengths within the red color band construed by the trial court, there is no evidence that this transmission results in any perceptible red light visible to the human eye. Second, the court stated that “Honeywell does not dispute that Verney discloses claim 2(3)(a) [sic].” Invalidity/Defenses Order at 546 (citing Pis.’ Post-Trial Opp’n Br. Regarding Defenses 61-62). But this statement is directly contradicted by Honeywell’s brief before the Court of Federal Claims. Citing testimony by Mr. Tannas, Honeywell argued that “one of ordinary skill in the art would understand that, because Verney teaches that the filtered red warning light does not adversely affect the performance of the NVGs, the red warning light would have to be dimmed to a level where it is not perceptible to the human observer.” Pis.’ Post-Trial Opp’n Br. Regarding Defenses 65 (explaining that “the Court’s claim construction requires that the ‘narrowband of the red color band’ that is emitted by a local color display be perceptible”). Honeywell unambiguously contended that “Verney (DE-511) is completely unrelated to the '914 invention.” Id. Third, according to the Court of Federal Claims, “Mr. Tannas also agreed that ‘[Verney] is very close to the CMFD filter.’ ” Invalidity/Defenses Order at 546 (alteration in original). This statement alone, however, cannot support a finding that Verney discloses the passing of perceptible red light. Indeed it is clear from the reference itself that Ver-ney discloses only dimming and blocking near infrared light, which is not the same as passing perceptible red light. Specifically, Verney identifies two approaches for permitting aircraft pilots to see caution and warning lights through NVGs: (1) use limited filtering to “cut[] out the near infrared [light]” and (2) “where installation of limited filtering proves impracticable,” use dimming to “set the intensity low enough so that [the] energy level can be seen through the NVGs.” J.A. 623400 (stating in the context of the first approach that “[t]his filter when combined with a source that is dimmable provides an effective warning since the energy emitted from the display stands out in the NVG without adversely affecting their performance”). Verney concludes: “One significant finding during the BLACK HAWK development program is that red warning lights are permissible in the cockpit if the appropriate filtering and dimming is present.” J.A. 623402. The government points to no record evidence to support a finding that Verney discloses perceptible red light. For these reasons, the Court of Federal Claims committed clear error in finding that Verney discloses element (a)(3) of claim 2. Given the failure to prove that the cited references disclose element (a)(3), the government has failed to carry its burden of proving by clear and convincing evidence that the claimed invention would have been obvious to one of skill in the art. In light of the foregoing, we need not address Honeywell’s additional argument that the objective considerations warranted a determination of nonobviousness. B. Written Description The Court of Federal Claims concluded, in the alternative, that claim 2 is invalid under the written description requirement of 35 U.S.C. § 112, ¶ 1. Invalidity/Defenses Order at 567-72. “Compliance with the written description requirement is a question of fact.” ICU Med., Inc. v. Alans Med. Sys., Inc., 558 F.3d 1368, 1376 (Fed.Cir.2009). To comply, a patent applicant must “convey with reasonable clarity to those sldlled in the art that, as of the filing date sought, he or she was in possession of the [claimed] invention.” Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563-64 (Fed.Cir.1991) (emphasis omitted). According to the Court of Federal Claims, claim 2 encompasses a variety of displays, but the originally filed '269 application “contains no indication that the inventor conceived of the invention being used with any displays other than CRTs.” Invalidity/Defenses Order at 570. During prosecution of the '914 patent, Honeywell amended the '269 application to substitute claims from another application for which the PTO had issued a notice of allowability. Honeywell also amended the specification and drawings of the '269 application, including replacing figure 3. It is true that figures 2 and 3 of the original application disclosed an embodiment using a local display (37) consisting of three monochromatic CRTs (51-53). But the original application also explained that “[i]n the case of the local display 37 using separate cathode ray tubes 51-53 or other display transducers, it is possible to more easily filter offending colors from reaching the [NVG].” J.A. 606271 (emphasis added). Moreover, the original application stated that “[w]hile specific configurations of the local display ... 37 have been described, it is understood that the present invention can be applied to a wide variety of display and vision aid devices.” J.A. 606272. While original figure 3 may have disclosed a CRT, there is no reason, in light of the other statements in the specification, to limit the disclosure to only CRTs. For these reasons, the Court of Federal Claims clearly erred in finding that the original application’s disclosure was limited to CRT displays and that claim 2 of the '914 patent is invalid under the written description requirement of 35 U.S.C. § 112, ¶ 1. C. Indefiniteness

9510073-18142

ORDER Denying Defendants’ Motion to Dismiss and Granting Plaintiffs Request for Judicial Notice MARSHALL, District Judge. The matters before the Court, the Honorable Consuelo B. Marshall, United States District Judge presiding, are (1) Plaintiffs Request for Judicial Notice and (2) Defendants’ Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The parties appeared before the Court on May 21, 2001. Upon consideration of the arguments presented, the Court grants Plaintiffs Request for Judicial Notice and denies Defendants’ Motion to Dismiss. JURISDICTION This action is before the court pursuant to 47 U.S.C. § 253 and 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Plaintiffs state law claims pursuant to 28 U.S.C. § 1367. BACKGROUND AND PROCEDURAL HISTORY Plaintiff Pacific Bell Telephone Company filed a Complaint against the City of Hawthorne and the City Council of the City of Hawthorne on February 27, 2001. The Complaint seeks declaratory and in-junctive relief under § 253 of the Telecommunications Act of 1996; federal preemption; California Public Utilities Code § 7901; California Government Code §§ 50030, 66001; and the California Constitution. Plaintiff further seeks a peremptory writ of mandate, pursuant to California Code of Civil Procedure § 1085. Plaintiff contends that this Court has jurisdiction over this action pursuant to the Telecommunications Act of 1996 and the Supremacy Clause of the U.S. Constitution. The gravamen of Plaintiffs Complaint is that the City of Hawthorne adopted ordinances that impose burdensome regulations and fees on telecommunications service providers. The City adopted Ordinance No. 1686 (the “Ordinance”) and Resolution 6612 (the “Fee Resolution”) on June 26, 2000 and July 24, 2000, respectively. The preamble to the Ordinance states that the Ordinance was enacted “to adopt reasonable regulations relating to the control and management of its public streets and rights-of-way.” The Ordinance requires telecommunications service providers, inter alia, to list all telecommunications agreements, to include a “government approval provision” in all future telecommunications agreements, to maintain certain books and records, to permit auditing and inspection of such books by the City and to provide- copies of any filings with the Federal Communications Commission. The Fee Resolution imposes various permit, application, inspection, registration, license and franchise fees on telecommunications service providers who utilize the City’s streets, rights-of way and other public property. The City Informed Plaintiff in January 2001 that Plaintiff is required to comply with the Fee Resolution and Ordinance. Complaint ¶ 4. Plaintiff was instructed to complete a questionnaire, which allegedly is “extensive, burdensome and overreaching.” Complaint ¶ 4. Plaintiffs federal claims seek a determination that the City’s Ordinance and Fee Resolution violates and are preempted by § 253. Defendants filed a Motion to Dismiss the Complaint pursuant to Fed. R.Civ.P. 12(b)(6) on April 2, 2001. Plaintiff filed an Opposition and a Request for Judicial Notice on May 7, 2001. Defendants’ Reply was filed on May 14, 2001. DISCUSSION I. Plaintiff’s Request for Judicial Notice Plaintiff requests the Court to take judicial notice of the Opposition to Defen dants’ Motion to Dismiss filed on March 30, 2001 by Qwest Communications in Qwest Communications Corp. v. City of Berkeley, Case No. C01-0663 SI (N.D.Cal.). A court may take judicial notice of a fact that is not subject to reasonable dispute. Fed.R.Evid. 201. Courts generally take judicial notice of court filings or pleadings. See, e.g., Mullis v. United States Bankr.Court, 828 F.2d 1385, 1388 n. 9 (9th Cir.1987). Based on the foregoing, the Court grants Plaintiffs Request for Judicial Notice. II. Defendants’ Rule 12(b)(6) Motion to Dismiss The Complaint states that this Court has federal question jurisdiction over this action pursuant to the Supremacy Clause of the U.S. Constitution (hereinafter “Supremacy Clause”) and the Telecommunications Act of 1996 (hereinafter “Telecom Act”). Defendants argue that Plaintiffs claims should be dismissed because § 253 of the Telecom Act does not provide for a private right of action. Defendants further argue that Plaintiffs challenge of the Fee Resolution is precluded by principles of federal-state comity and Tax Injunction Act. A. Private Right of Action Under Section 253 Plaintiffs first cause of action seeks declaratory and injunctive relief under 47 U.S.C § 253(a) and (c). Congress enacted the Telecom Act to partially deregulate the telecommunications industry. Section 253 expressly preempts any state law which prohibits or has the effect of prohibiting telecommunication services. 47 U.S.C. § 253(a). Section 253 does not expressly authorize a private right of action fix telecommunication service providers. Whether a statute impliedly provides for a private right of action is a matter of statutory construction. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). Courts consider the following factors when determining whether an implied private right of action should be inferred: First, is the plaintiff one of the class for whose especial benefit the statute was enacted — that is, does the state create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (citations omitted). These factors are not entitled to equal weight. See Touche Ross & Co. v. Redington, 442 U.S. 560, 579, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). “The central inquiry remains whether Congress intended to create, either expressly or by implications, a private cause of action.” Id. The language of § 253 and the legislative history of the Telecom Act support a finding that Congress intended to create a private right of action for telecommunications service providers under section 253(c), but not under sections 253(a) or (b). The Telecom Act partially deregulates the telecommunications industry “to accelerate ... private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition.” H.R.Conf.Rep. No. 104-458, at 1 (1996). The Telecom Act requires the interconnection of competitors’ poles, ducts and rights-of-way to facilitate widespread customer access to telecommunications services. See 47 U.S.C. § 251. As part of this universal service effort, the Act limits states’ ability to regulate providers of telecommunications services. See 47 U.S.C. § 253; see also City of Auburn v. Qwest Corp., 247 F.3d 966, 980-81 (9th Cir.2001) (“Municipalities ... have a very limited and prescribed role in the regulation of telecommunications.”). Section 253 provides, in relevant part: (a) In general. No state or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. (b) State regulatory authority. Nothing in this section shall affect the ability of a state to impose, on a competitively neutral basis and consistent with section 254 of this section, requirements necessary to preserve and advance service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. (c) State and local government authority. Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from the telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government. (d) Preemption. If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency. 47 U.S.C. § 253(a)-(d). Section 253(d) instructs the Federal Communications Commission (“FCC”) to preempt any state or local legal requirement that violates either subsection (a) or (b). No express authority is given to the FCC to preempt state laws that violate subsection (c). Congress’ failure to grant such authority to the FCC implies that Congress intended § 253(c) to be enforced by those entities most directly affected by unreasonable rates — namely, telecommunications service providers. The legislative history of § 253 further indicates that Congress intended to provide a private right of action under subsection (c), but not subsections (a) and (b). The Senate debate regarding the scope of the preemption under § 253(d) indicates that Congress intended that challenges to state and local laws, pursuant to §§ 253(a), (b), would be heard before the FCC in Washington, DC with a right of appeal to the United States Court of Appeals. Senators Feinstein and Kempthorne expressed concern, during the debate, that the scope of § 253(d)’s preemption was too broad and proposed eliminating section 253(d) altogether. Senator Gorton described the impact of eliminating § 253(d) as follows: [Elimination of § 253(d)] does not impact the substance of the first three subsections of this section at all, but it does shift the forum in which a question about those three subsections [i.e., §§ 253(a)-(c)] is decided. Instead of being the Federal Communications Commissions with an appeal to a Federal court here in the District of Columbia, those controversies will be denied by the various district courts of the United States.... 141 Cong.Rec. S8206, S8212 (daily ed. Jun. 13, 1995) (statement of Sen. Gorton). Senator Gorton stated that § 253(d) should be amended to balance the competing concerns of centralized rule making and local control of public rights-of-way: There ought to be one center place where these questions are appropriately decided by one Federal entity which recognizes the impact of these rules from one part of the country to another and one Federal court of appeals. On the other hand, the localism argument that cities, countries, local communities should control the use of their own streets and should not be required to come to Washington, DC, to defend a permit action for digging up a street, for improving or building a new utility also has great force and effect.... Id. at S8212. Senator Gorton proposed the current language of § 253(d) to address these competing concerns. He explained during the debate: There is no preemption ... for subsection (c) ... which is the subsection which preserves to local governments control over their public rights-of-way. It accepts the proposition ... that these local powers should be retained locally, that any challenge to them take place in the Federal district court in the locality and that the Federal Communications Commission not be able to preempt such actions. Id. at S8213. Congress intended that disputes arising under §§ 253(a) and (b) would be heard before the FCC and appeals from the FCC’s decisions heard by the U.S. Court of Appeals for the District of Columbia. Any complaints by telecommunications service providers that a state or local law violates either § 253(a) or (b) should be lodged with the FCC in Washington, DC. However, complaints that a state or municipal law violates § 253(c) should be filed locally in federal court. Other courts addressing the issue of whether § 253(c) affords a private right of action have reached conflicting conclusions. In GST Tucson Lightwave, Inc. v. City of Tucson, 950 F.Supp. 968 (D.Ariz. 1996), the district court concluded that § 253(o) did not provide for a private right of action. The court construed §§ 253(d) and 257 as being the sole means of enforcing § 253. Id. at 970. This interpretation is problematic since the plain language of § 253(d) does not empower the FCC to preempt laws violating § 253(c). The district court’s interpretation of § 253 would render § 253(c) unenforceable. Defendants argue that courts recognize a presumption against implying private rights of action under the Telecommunications Act. Defendants’ reliance on Maydak v. Bonded Credit Co., 96 F.3d 1332 (9th Cir.1996), is misplaced. In Maydak, the Ninth Circuit stated that “courts have been unwilling to permit an expansive reading of the statutory language or to create implied causes of action.” Id. at 1334. Maydak is inapplicable to the present case because the Ninth Circuit was interpreting the Telecommunications Act 1934, not the Telecom Act. Congress’ en actment of the Telecommunications Act of 1996 marks its intent to implement a new regulatory structure for telecommunications service providers, which includes a limited private enforcement scheme. Based on the foregoing, the Court finds that § 253(c) provides telecommunications service providers with an implied private right of action, but §§ 253(a) and (b) do not. Plaintiffs first cause of action alleges that the Ordinance and Fee Resolution violate 47 U.S.C. § 253. Plaintiff contends that the Ordinance violates § 253(a) by imposing “numerous burdensome” registration, filing and record keeping requirements on telecommunications service providers and not disclosing the standard for obtaining an exception to the registration process. Complaint ¶¶ 34-38. Plaintiff further alleges that the Ordinance and Fee Resolution violate § 253(c) because: The multiple fees imposed by the Ordinance and the [Fee] Resolution including, but not limited to, the License and Franchise fees based upon the fair market value of the property rights granted, the Security deposit, encroachment permit fee, the Registration fee and the Public Works Inspection fee, are dupli-cative of one another, exceed the actual costs of managing the rights-of-way, are charged for conditions of approval not directly related to the use of the rights-of-way and are generally not fair and reasonable. Complaint ¶ 40. Based on the foregoing, the Court find that Plaintiff has standing to sue under 47 U.S.C. § 253(c), but not under § 253(a). The Court’s inquiry does not end here. Plaintiff may have limited standing to seek declaratory relief under the Supremacy Clause, as discussed below. B. Preemption Under Supremacy Clause Plaintiff argues that, even if § 253 does not afford a private right of action, it has standing to sue under the Supremacy Clause of the U.S. Constitution. Defendants concede that Plaintiff may have standing to sue under the Supremacy Clause, but argues that the Complaint does not state that Plaintiff is suing under the Supremacy Clause. The Supremacy Clause “invalidates state laws that interfere with, or are contrary to” federal law. City of Auburn v. Qwest Corp., 247 F.3d 966, 980 (9th Cir.2001). “Within constitutional limits, Con gress is empowered to preempt state laws in several ways, including by expressly stating its intention to do so.” Id. “[T]he Supremacy Clause is not a substantive constitutional provision that creates rights.... ” White Mountain Apache Tribe v. Williams, 810 F.2d 844, 848 (9th Cir.1985) (citing Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 612-15, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979)). The Supreme Court has stated that “even though that Clause is not a source of any federal rights, it does ‘secure’ federal rights by according them priority whenever they come in conflict with state law.” Chapman, 441 U.S. at 613, 99 S.Ct. 1905. The Supremacy Clause “deflne[s] the relationship between state and federal law.” White Mountain, 810 F.2d at 848. A plaintiff has limited standing to sue under the Supremacy Clause for declaratory relief that a state law is preempted by federal law — even when the federal law does not authorize a private right of action. AT & T Communications v. City of Austin, 975 F.Supp. 928, 937 (W.D.Tex.1997); see also City of Auburn, 247 F.3d 966, 980-81. The Complaint states that Plaintiff seeks declaratory relief that the Ordinance and the Fee Resolution are preempted by the Telecom Act under the Supremacy Clause. Complaint ¶ 35. Based on the foregoing, the Court finds that Plaintiff has standing to seek declaratory relief regarding preemption of the Ordinance and Fee Resolution preempted by §§ 253(a), (c) — even though § 253(a) does not provide for a private right of action. C. Federal-State Comity & Tax Injunction Act Defendant argues that Plaintiffs challenge of the Fee Resolution is precluded by principles of federal-state comity and the Tax Injunction Act. 1. Tax Injunction Act The Tax Injunction Act of 1937 (hereinafter “TIA”) states: The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. 28 U.S.C. § 1341. The TIA codifies “the preexisting federal equity practice of noninterference with states’ internal economy and administration” Berry v. Alameda Board of Supervisors, 753 F.Supp. 1508, 1511 (N.D.Cal.1990); accord Rosewell v. LaSalle National Bank, 450 U.S. 503, 522, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981). The TIA “bars anticipatory relief, suits to stop (“enjoin, suspend or restrain”) the collection of taxes.” Jefferson County v. Acker, 527 U.S. 423, 427, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999).

2178068-4857

MEMORANDUM The appellants appeal the dismissal of their complaint, sanctions pursuant to Fed eral Rule of Civil Procedure 11, and an order declaring the appellants vexatious litigants. We find that this appeal was timely filed under the rules set forth in Wallace v. Chappell, 637 F.2d 1345, 1348 (9th Cir.1981) (en banc). But we conclude that all of the appellants’ arguments are without merit. The arguments raised by the appellants relate largely to the procedural or preliminary issues addressed separately below. Looking first to the substance of the district court’s order, we find that the dismissal based on the appellants’ non-opposition was not an abuse of discretion. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.1995). Sanctions pursuant to Federal Rule of Civil Procedure 11 were warranted and assessed in an appropriate amount. See Fed.R.Civ.P. 11; cf. In re Yagman, 796 F.2d 1165, 1183-85 (9th Cir.1986). The vexatious litigant declaration was also warranted and appropriate in its scope. See O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir.1990); De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir.1990); Say & Say, Inc. v. Ebershoff, 20 Cal.App.4th 1759, 1766-67, 25 Cal.Rptr.2d 703 (1993). The appellants contend that the removal to federal court was improper. But in light of the original complaint’s allegations, which include a charge of “official corruption,” Judge Bufford’s removal under 28 U.S.C. § 1442(a)(1) was permissible. Judge Bufford stated a colorable federal defense based on judicial immunity. Moreover, there appears to be a sufficient connection between Judge Bufford’s official authority and the acts complained of such that they are acts “under color of office.” See Jefferson County, Ala. v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999); Willingham v. Morgan, 395 U.S. 402, 406, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). To the extent that the appellees may have violated the local rules regarding meeting and conferring prior to filing a motion, we find that any such violation is excused. See Profl Programs Group v. Dep’t of Commerce, 29 F.3d 1349, 1353 (9th Cir.1994). There is no indication that any violations prejudiced the appellants. Cf. United States v. Hernandez, 251 F.3d 1247, 1251 (9th Cir.2001). Moreover, the appellants waived this issue by failing to raise it with the district court. See Int’l Olympic Comm. v. San Francisco Arts & Athletics, 781 F.2d 733, 739 (9th Cir.1986). Mr. Stanwyck’s bankruptcy filing did not stay the proceedings as to him. While 11 U.S.C. § 362(a) stays litigation against the debtor that was or could have been brought before the bankruptcy, the stay does not apply to post-petition defensive actions in a pre-petition lawsuit brought by a debtor. See In re Way, 229 B.R. 11, 13 (9th Cir.BAP1998); In re White, 186 B.R. 700, 704 (9th Cir. BAP1995); In re Merrick, 175 B.R. 333, 336, 338 (9th Cir.BAP1994). Mr. Stanwyck has not demonstrated that he was denied accommodations to which he was entitled under the Americans with Disabilities Act or the Rehabilitation Act. In fact, the district court delayed hearing the pending motions in response to Stanwyck’s ex parte application requesting additional time due to his medical con dition. The eventual hearing date was more than 100 days after that application. The appellants never filed another request for an extension of time. During most of this time, Mr. Stanwyck was being assisted by at least one other attorney. Mr. Stan-wyck has presented no persuasive legal authority indicating that he was not afforded necessary accommodations based on his medical condition. We reject the appellants’ argument that the United States Attorney should have been recused from representing Bankruptcy Judge Samuel Bufford. This argument was rejected by the Appellate Commissioner in an order dated July 14, 2003. To the extent that the appellants took issue with that ruling, they should have sought reconsideration by way of a motion for reconsideration before the Appellate Commissioner. See Ninth Circuit Adv. Comm. Note to Circuit Rule 27-1. In any event, the appellants have presented no compelling argument regarding why the United States Attorney should have been recused either during district court proceedings or during the proceedings before this court. We reject the appellants’ contention that the district court judge should have recused himself. The appellants never moved to recuse the district court judge. A review of the record reveals no bias by the judge against the appellants or that the judge’s impartiality might reasonably be questioned. 28 U.S.C. § 455(a). Further, the appellants have failed to identify any extrajudicial source from which the alleged bias stemmed, which is necessary for recusal under 28 U.S.C. § 455. Pan v. Yosemite Park & Curry Co., 928 F.2d 880, 885 (9th Cir.1991).

5871525-12537

MEMORANDUM OPINION AND ORDER TOM S. LEE, District Judge. This cause is before the court on the motion of defendant Nissan North America, Inc. (Nissan) for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Jeremy Crown has responded to the motion and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that the motion is well taken and should be granted. In this action, plaintiff alleges he was terminated from his employment with Nissan in violation of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (FMLA). Specifically, plaintiff, who was diagnosed with diabetes in August 2006, alleges that in October 2007, he requested approval for three days of FMLA leave for a diabetes-related condition or illness, which Nissan wrongly denied; and because Nissan refused to approve his request for FMLA leave, he was charged with three days’ unexcused/unapproved absence from work, which Nissan ultimately asserted as grounds for his subsequent termination in January 2008. For its part, Nissan takes the position that plaintiffs October 2007 absences cannot form the basis of a viable FMLA claim because plaintiff failed to comply with Nissan’s policy which required that he provide notice and a medical certification demonstrating that the leave was covered by the FMLA, and that consequently, plaintiff was not entitled to FMLA leave for those absences. It is on this basis that Nissan has moved for summary judgment. The following facts are undisputed: Plaintiff became employed by Nissan as a production technician in 2003. In August 2006, plaintiff became severely ill and was hospitalized, causing him to be absent from work for ten days. At that time, plaintiff was diagnosed with Type 1 Diabetes. When he returned to work on August 15, 2006, plaintiff completed Nissan’s “Employee’s Request for FMLA Designation of Time Off,” listing “Diabetes Condition” as the “Reason for Request.” That request was accompanied by a “Certification of Health Care Provider,” on which his doctor indicated that plaintiff suffered from a “chronic condition” that would be of indefinite duration and for which plaintiff would “need the ability to stop for snacks and check his sugar as needed.” Nissan approved plaintiffs absence as protected, FMLA leave. The following October, plaintiff was absent from work for three days, October 24, 25 and 26. Plaintiff maintains that this period of absence was related to an illness resulting from his diabetes, and upon returning to work on October 27, he filed the required documents to request FMLA leave. On the form, plaintiff cited “illness” as the reason for request, for which he had sought treatment at an MEA Medical Clinic. As the basis for claiming the absence as FMLA protected, the accompanying certification completed by MEA indicated that plaintiffs illness lasted more than three days (which would have made it protected FMLA leave, see infra). However, that was obviously incorrect, since plaintiff was absent for only three days. Accordingly, Nissan denied plaintiffs request for approval of FMLA leave. His absence was thus unprotected and therefore, based on Nissan’s Attendance Corrective Action Guidelines, pursuant to which employees are assessed attendance points for unexcused and excused (but unpaid and unprotected) absences, plaintiff was assessed four points, which brought his attendance point total to twelve. According to Nissan, thereafter, in December 2007, pursuant to the company’s normal practice of monitoring employee attendance, Nissan conducted an investigation of plaintiffs attendance status. The investigation concluded that under the company’s Attendance Corrective Action Guidelines, plaintiffs attendance point total of twelve justified a “Written Reminder”; and further, since plaintiff had been issued a “Final Written Reminder” in May 2007 as the result of numerous successive conduct infractions, then pursuant to Nissan’s progressive corrective action system, his incurrence of a Written Reminder for violation of the Attendance Policy within a year of the May 2007 Final Written Reminder warranted his termination. Under the FMLA, an eligible employee is entitled to a total of 12 weeks of leave a year for, inter alia, a “serious health condition that makes the employee unable to perform the functions of the position of such employee”. 29 U.S.C. § 2612(a)(1)(D). Applicable Department of Labor (DOL) regulations define “serious health condition” as “an illness, injury, impairment, or physical or mental condition” that involves inpatient care or continuing treatment by a health care provider. 29 C.F.R. § 825.114(a)(2). A serious health condition involving continuing treatment by a health care provider is further defined to include, inter alia, “[a] period of incapacity ... of more than three consecutive calendar days,” and “[a]ny period of incapacity or treatment for such incapacity due to a chronic serious health condition.” § 825.114(a)(2)(i) and (iii). The definition of “chronic serious health condition” includes a health condition which “[m]ay cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).” § 825.114(a)(2)(iii)(C) (emphasis added). The FMLA “protects employees from interference with their leave as well as against discrimination or retaliation for exercising their rights.” Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir.1998); see 29 U.S.C. § 2615(a) (covered employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any [FMLA leave] right,” or otherwise “discriminate against any individual for opposing any [FMLA-prohibited] practice”). Although the term “interference” is not defined in the FMLA, DOL regulations explain that “[i]interfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R. § 825.220. See Duchesne v. Shaw Group Inc., Civil Action No. 06-607, 2008 WL 4544387, 4 (WD.La. Sept. 10, 2008). To survive summary judgment on his interference claim, plaintiff must first establish a prima facie case. “In order to state a prima facie case of interference under the FMLA, an employee must demonstrate only that [he] was entitled to a benefit that was denied.” Id. (citing Anderson v. New Orleans Jazz & Heritage Festival and Found., Inc., 464 F.Supp.2d 562, 567 (E.D.La.2006)). Thus, to make a prima facie case for interference with FMLA rights, plaintiff must first demonstrate that his leave was protected under the FMLA. Ford-Evans v. United Space Alliance LLC, No. 08-20033, 329 Fed.Appx. 519, 523, 2009 WL 1344945, 3 (5th Cir. May 14, 2009). In this case, it is undisputed that plaintiff had been diagnosed with diabetes approximately one year before the period of absence at issue. Moreover, Nissan does not, nor could it reasonably challenge plaintiffs assertion that his diabetes is a “chronic serious health condition” under the terms of the FMLA. Nissan contends, however, that plaintiff cannot establish a prima facie case because he cannot show he was entitled to FMLA leave for the subject absences in October 2007. Under the FMLA, “[a]n employee giving notice of the need for unpaid FMLA leave must explain the reasons for the needed leave so as to allow the employer to determine that the leave qualifies under the Act. If the employee fails to explain the reasons, leave may be denied.” 29 C.F.R. § 825.208(a)(1). Further, “[a]n employer may require that a request for leave ... be supported by a certification issued by the health care provider of the eligible employee ... [and][t]he employee shall provide, in a timely manner, a copy of such certification to the employer.” 29 U.S.C. § 2613(a). See also Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 975 (5th Cir.1998) (“In determining whether an employee’s leave request qualifies for FMLA protection, the employer must assess whether the request is based on a serious health condition, and, for that purpose, may request supporting medical doe umentation.”) (citations and internal quotations omitted). Nissan maintains that plaintiffs request for FMLA leave was properly denied because the medical certification completed by MEA did not identify any valid basis for concluding that plaintiffs three-day absence qualified for FMLA protection. The form queried, “Does the patient’s condition qualify as having a ‘serious health condition’ under the FMLA under any one or more of the following categories?” and listed five bases on which plaintiffs condition could qualify for coverage under the FMLA. The MEA representative who completed the form initially marked the box “None of the Above,” but then crossed that out and checked the box “Condition lasting more than three days.... ” The box for “Chronic condition was not marked,” and the request for a description of medical facts supporting the certification of the patient’s “serious medical condition” was left blank. Plaintiff admits that the condition for which he sought treatment during October 2007 did not last more than three days. His own portion of the certification indicated that he had first become unable to work on October 24, and it is undisputed that he returned to work three days later, on October 27. Thus, the reason indicated on the MEA certification for FMLA coverage was patently incorrect. Plaintiff nevertheless reasons that notwithstanding that the certification form otherwise gave no indication as to any basis upon which the leave might have qualified for FMLA protection, his request for FMLA leave should have been approved because Nissan knew, or should have known, that these absences were for his “chronic condition,” diabetes. In this regard, plaintiff reasons that Nissan knew he suffered from diabetes, a serious, chronic medical condition, and it knew from the time it first approved FMLA leave for this condition in August 2006 that this condition would continue for an indefinite period, and would require future doctors’ visits and medication. Plaintiff thus reasons that Nissan should have known that his three-day absence in October 2007 resulted from a period of incapacity due to his chronic serious health condition because it was aware that he had this condition, and was likewise aware that this condition had previously necessitated treatment. Plaintiff does not deny that the certification form did not identify a valid basis for his FMLA leave request. He simply contends that he should not have been penalized for the lack of competence of the individual who completed the form, arguing, The long and short of this situation is that in 2007, for the first time, Plaintiff had his FMLA Designation Form completed by a doctor who treated Plaintiff in an “MEA Clinic” setting. Meaning no disrespect to the MEA clinics which provide exceptional care to a great number of residents of this community, this MEA physician had only a snap-shot view of one incidence of treatment in a more than year-long Diabetes treatment scheme. The form was hastily, hurriedly and less than thoroughly completed. As defendant correctly points out, plaintiff has offered no evidence that the form was incorrectly completed, or that it was “hastily, hurriedly and less than thoroughly completed.” In any event, whether he could prove that or not, the fact remains that regardless of the reason, plaintiff failed to submit the required certification establishing that his absence on October 24, 25 and 26 was due to his chronic, serious health condition. Plaintiffs suggestion that Nissan should have known that his absences were related to a chronic condition despite the health care provider’s failure to so indicate simply because it knew he had been earlier diagnosed with a chronic condition is without merit. By this argument, plaintiff is, in effect, contending that once an employer is on notice that an employee has a chronic health condition, the employer must thereafter assume that all medical absences from work are related to that condition. This position is directly contradicted by those provisions of the FMLA which permit the employer to require notice that leave is requested for a qualifying reason and which authorize the employer to require the plaintiff to furnish certification for his healthcare provider that each period of absence is covered by the FMLA. As the courts have recognized,

3971542-11249

OPINION AND ORDER PIERAS, District Judge. This is an action under the Age Discrimination in Employment Act, 29 U.S.C. § 626, et seq. (ADEA) and Law 100 of June 30, 1959, 29 L.P.R.A. § 146 et seq., in which plaintiff claims he was dismissed from his position as Director of Sales with the defendant because of his age. The defendant claims plaintiff was fired because he did not comply with a business decision which resulted in a pecuniary loss to the company. The matter is before the Court on defendant R.J. Reynolds Tobacco Company’s (RJR) Motion for Summary Judgment and plaintiff’s opposition. The following appear as stipulated or uncontested material facts. Plaintiff Félix Aguayo was hired effective December 1,1981, as Director of Sales, at age 42, passed a three month probationary period, worked for five years as the Director, and was fired in 1985, at age 47. On December 20, 1985, plaintiff was advised by letter to find alternate employment. The letter followed up a conversation between plaintiff and RJR. Effective March 31, 1986, plaintiff was severed from employment, and was given $1,000.00 in outplacement. At the time of his discharge, plaintiff was earning $68,000.00 plus fringe benefits. He has a college degree from the University of Florida. Prior to his employment with RJR, he had worked for Sears Roebuck & Co. of Puerto Rico for nineteen years. At Sears, he held various high level managerial positions, including Personnel Manager and Manager of the Sears Store located in Bayamón, Puerto Rico. Plaintiff’s, successor was 34 years of age at the time he replaced plaintiff, earning a starting salary as Director of Sales of $50,-000.00 plus fringe benefits. His successor was hired from within RJR, who previously served as Personnel Manager for one year and two years of Manager of Sales Planning before being named as Regional Sales Manager. Throughout his employment with' RJR, plaintiff reported directly to the General Manager and Vice President, Mr. Clyde W. Fitzgerald. Periodic evaluations indicated his performance was satisfactory. As Director of Sales, the plaintiff was required to meet monthly, quarterly and annual sales quotas. Revisions of those quotas were made during the year from time to time. I. The Standard for Summary Judgment Summary judgment is only proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c). A factual dispute is material if it “affects the outcome of the litigation,” and genuine if manifested by “substantial” evidence “going beyond the allegations of the complaint.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). In passing on a summary judgment motion, the Court must view the record and draw inferences in the light most favorable to the opposing party. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458, 464 (1962). Summary judgment is a proper procedural tool that may “secure the just, speedy and inexpensive determination” of a case where, in consideration of the substantive law, there is no issue as to the material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). With these principles in mind, we now examine defendant’s motion and plaintiff’s opposition. II. The ADEA Claim To establish a prima facie cause of action for age discrimination under the ADEA, the plaintiff must prove that he was in the protected age group, that is, age 40-70, that he was performing his job at a level that met his employer’s legitimate expectations, that he nevertheless was fired, and that his employer sought someone to perform the same work after he left. Loeb v. Textron, 600 F.2d 1003, 1014 (1st Cir.1979). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a plausible, non-discriminatory explanation for the discharge. If the defendant sustains his burden, the burden shifts back to the plaintiff to show that the proffered reason is merely a pretext for discrimination. Id. This Court finds that plaintiff has established a prima facie case of age discrimination. He was 47 years of age at the time he was fired, and his job evaluations indicate that his boss was happy with his work. Furthermore, RJR hired a replacement as Director of Sales from within the company shortly after plaintiff’s discharge. We note that the defendant does not refute these facts. The defendant does contend that it has satisfied its burden to articulate a legitimate, non-discriminatory reason for firing plaintiff, and its only evidence in support is plaintiff’s deposition. Defendant argues that plaintiff concedes that he made a poor managerial decision that was contrary to a business decision reached at a strategy meeting between plaintiff, his boss Mr. Fitzgerald, and a Mr. Cabrera, apparently a managerial employee. Furthermore, he admits that his managerial decision is the only reason for his dismissal. At that meeting, held in the middle of November of 1985, the three decided to revise the November monthly sales quota, because sales were too high; its purchasers would not be able to make sufficient purchases for December. However, plaintiff did not follow that decision, and allowed the November sales to exceed that agreed upon quota. His stated reason was that in reducing the November monthly quota, he would not meet the annual quota, which was set before the November meeting. His deposition testimony is as follows: Page(s) 20-22: Q. Mr. Aguayo, why did you file this complaint? A. I filed this complaint basically because I feel that the company was unfair. Q. Why? A. Because I gave the company what I understood to be what the company paid me for. I think I was dismissed basically because I tainted my boss’s armor. ... / Q. But what do you mean by “tainted his armor”? A. In other words he had the shiing (sic) armor, he has an outstanding career, and I made a decision, a management decision which in paper might have looked bad, but in results it was what I was being paid for. Q. You have mentioned a “poor managerial decision.” What do you mean by that? Can you expand on that? A. Basically, in a meeting Mr. Fitzgerald, Mr. Cabrera, and I met during the last part of, middle part of November because the November sales were not performing as I expected and as the company needed in order to reach our yearly volume as budgeted or as assigned. At that meeting, which I called through Mr. Cabrera, I advised Mr. Fitzgerald oficially (sic) that I didn’t think that we were going to make the sale that were budgeted for November. Mr. Fitzgerald at that meeting with Mr. Cabrera and I decided that we would review downwards the sales for the month, but nowhere did he state that the volume for the year was being adjusted. Page(s) 23-24: Q. Would you please continue to expand on the “poor managerial decision” which you have indicated. A. I made the decision, the company though (sic) it was a poor managerial decision I still say it was the right decision. ... / Page 41: Q. What is the managerial decision that the company didn’t like? A. That I allowed the sales to go beyond the numbers that were given for that month. Throughout his deposition, plaintiff repeatedly answered that the reason for his dismissal was the poor managerial decision he described above. Furthermore, he reported that the only reason he believed he had to a claim for age discrimination was that he “was discharged because of age because I was replaced by a younger person than myself, ... [wjithout just cause, because what I was advised I had done incorrectly ...” Deposition at 88-90. Additionally, in his subsequent job search plaintiff told the interviewer for Careers, an executive placement agency, that he was fired because of a difference of opinions with his boss. Deposition at 111-12. As we have noted above, this evidence is sufficient only to present a prima facie case. A prima facie case may indeed be sufficient to establish a valid claim against an employer, where the defendant has not offered a non-discriminatory reason for the discharge. Loeb v. Textron, 600 F.2d at 1018 n. 20. However, the plaintiff may not rely on his prima facie case once the defendant has articulated a sufficient non-discriminatory reason for the firing. The defendant has offered a valid reason for firing plaintiff, and his evidence comes solely from the plaintiff's deposition. Once the defendant provides an explanation, the burden shifts back to the plaintiff to show that the proffered reason was only “pretextual”, even where the explanation disputes one of the elements of plaintiffs prima facie case. Loeb, 600 F.2d at 1014. Defendant’s explanation, poor job performance, disputes the third element of the prima facie case, that plaintiff was performing at a job level that met his employer’s legitimate explanation. In Dea v. Look, 810 F.2d 12 (1st Cir.1987), the First Circuit upheld the granting of a summary judgment on an ADEA claim because the plaintiff failed to satisfy his burden of showing that the defendant’s reason for the discharge was pretextual. In Dea, a 53 year old former airport maintenance supervisor sued the airport owners and operators, alleging age discrimination. Dea supervised four employees, and part of their duties was testing aviation fuel for impurity by drawing samples from fuel trucks. Dea was under the belief that he and his underlings could use contaminated fuel for their personal use. After a state police investigated some 9000 gallons of unaccounted aviation fuel, Dea and his men, including a 32 year old subordinate, were suspended. The airport commission, after holding and administrative hearing, fired Dea and several of his men, except the 32 year old man. The Court determined that Dea had proved a prima facie case of age discrimination by showing that all the men fired were over 40 years of age, except for his 32 year old subordinate. The airport articulated a plausible nondiscriminatory explanation for the discharge through the affidavit of the chairman of the airport commission who stated that Dea was fired because of improper use of the aviation fuel, improper instructions to subordinates, and withholding information from the airport. The younger employee was not terminated because the commission determined that he took fuel only once, left a note, and made restitution. The district court also relied on Dea’s deposition in which he stated the only reason for his discharge was the fuel dispute. His own deposition corroborated the airport’s proffered reason for the discharge. Dea argued that summary judgment was improper because the jury would be convinced that he could not be fired for taking impure fuel, which was nothing more than “trash.” 810 F.2d at 15. The First Circuit affirmed, noting that Dea’s deposition confirmed the reason for his dismissal, and holding that to refute or question the quality of the defendant’s explanation is not sufficient to prove pretext. Id.

6497998-7405

MEMORANDUM AND ORDER WEXLER, District Judge. Appellee, the Official Committee of Unsecured Creditors (the “Committee”), moves for an order dismissing the appeal by appellant, James Orlan (“Orlan”), debtor in bankruptcy, from the November 6, 1990 order of the Honorable Cecelia H. Goetz, United States Bankruptcy Judge for the Eastern District of New York. For the reasons stated below, the motion is granted. BACKGROUND On March 15, 1990, Orlan filed a voluntary petition before the Bankruptcy Court for the Eastern District of New York pursuant to chapter 11 of Title 11, United States Code. Orlan is the sole shareholder of Curran, Cooney, Penney Agency (“CCPA”), which operates as an independent insurance agency. CCPA filed a chapter 11 petition on the same day. By motion dated July 17, 1990, the Committee sought an order of the bankruptcy court to (1) appoint a chapter 11 trustee pursuant to 11 U.S.C. § 1104(a); or (2) convert Orlan’s case to a case under chapter 7 pursuant to 11 U.S.C. § 1112(b). The Committee based its motion to convert, in part, on allegations that immediately prior to Orlan’s filing bankruptcy petitions for himself and for CCPA, Orlan committed fraud by incurring approximately $157,000.00 of debt upon personal lines of credit (the “bank debt”) while having no intent to repay it. The Committee also alleged that Orlan transferred approximately $140,000.00 of the bank debt proceeds to CCPA for the purpose of restoring a sufficient balance to its clients’ premium trust account (the “premium account”), which was underfunded due to Orlan’s improper conduct. On August 21, 1990 and September 5, 1990, the bankruptcy court held an eviden-tiary hearing on the motion. At the hearing, the Committee supported its allegations with evidence that immediately after the transfers, Orlan caused CCPA to make payments to insurance companies of approximately $140,000.00 which it could not have done without CCPA’s receipt of the $140,000.00 bank debt proceeds, because the balance in the premium account prior to receipt of the bank debt proceeds was only $61,622.03. The Committee asserted that this proved that Orlan had violated the premium account, in violation of § 2120(a) of the New York Insurance Law (McKinney 1985). Orlan testified that CCPA’s payments to the insurance companies were “advance payments” for premiums not yet due. He asserted that it was of no consequence that the $140,000.00 paid to the insurance companies could not have been made without the deposit of the bank proceeds because such amount was not yet due and some clients’ premiums relating to the alleged payments had not yet been received by CCPA. The Committee states, however, that at the hearing Orlan did not support his testimony with documentary evidence. On October 8, 1990, the Committee, after investigating into the truth or falsity of Orlan's testimony at the hearing, applied to the bankruptcy court for an order reopening the hearing so that it could offer into evidence documents it had obtained as a result of its investigation. The motion was heard by the bankruptcy court on November 6, 1990. The bankruptcy court granted the Committee’s motion after determining that the Committee had “made a substantial case” and that reopening the hearing would be “in the interest of the best administration of Chapter 11 proceedings.” Order of Judge Goetz, Case No. 090-70348-21, November 6, 1990. On November 16, 1990, Orlan filed a Notice of Appeal with the clerk of the bankruptcy court, seeking to appeal the order granting the motion to reopen. The Committee moves to dismiss the appeal. The motion is unopposed. DISCUSSION This Court has the discretion to grant the Committee’s unopposed motion by default. Rule 3(b) of the Civil Rules United States District Courts for the Southern and Eastern Districts of New York (failure of nonmoving party to serve and file papers in opposition to a pending motion “may be deemed sufficient cause for ... the granting of the motion by default”). Moreover, even if the motion were opposed, the Court determines that dismissal of Orlan’s appeal is proper. 28 U.S.C. § 158(a) vests district courts with jurisdiction to hear appeals from final orders of bankruptcy courts within the district. See also Bankr.Rule 8001(a). Leave to appeal is necessary only when the appeal is from an interlocutory order of the bankruptcy court. § 158(a); see also Bankr.Rule 8001(b). It is to be noted that Orlan has not filed a motion for leave to appeal. However, “[i]f a required motion for leave to appeal is not filed, but a notice of appeal is timely filed, the district court ... may [nevertheless] grant leave to appeal_” Bankr.Rule 8003(c). In the case at bar, the Court determines that the order from which Orlan appeals is not a final order. Although a relaxed finality rule applies in bankruptcy cases, a final order in a bankruptcy case is “one that finally resolves a ‘particular proceeding or controversy within the entire bankruptcy proceeding,’ ” In re Gibson & Cushman Dredging Corp., 101 B.R. 405, 407 (E.D.N.Y.1989) (citation omitted), or “conclusively determines a separable dispute over a creditor’s claim or priority.” In re Johns-Manville Corp., 824 F.2d 176, 179 (2d Cir.1987); see also Maiorino v. Branford Sav. Bank, 691 F.2d 89, 93 (2d Cir.1982) (single bankruptcy may involve several “final” decisions). An order, which reopens a hearing addressed to appointing a chapter 11 trustee, or in the alternative, converting the case to a case under chapter 7, does not, in this Court’s view, constitute a final order. As the Committee correctly states, the order from which Orlan appeals is merely an evidentiary ruling made prior to the final disposition of the Committee’s motion to convert. See In re Leibinger-Roberts, Inc., 92 B.R. 570, 572-73 (E.D.N.Y.1988) (defining interlocutory orders as those which “constitute only a preliminary step in some phase of the bankruptcy proceeding and [ ] do not directly affect the disposition of the estate’s assets”). Having found that the order which forms the basis of this appeal is interlocutory in nature, to be appealable, the Court must determine that the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litiga-tion_” 28 U.S.C. § 1292(b); see also Connecticut Nat. Bank v. Germain, Trustee for the Estate of O’Sullivan’s Fuel Oil Co., Inc., - U.S. -,-, 112 S.Ct. 1146, 1149-50, 117 L.Ed.2d 391 (1991). This the Court cannot do. First, whether to reopen the record of an evidentiary hearing is a question committed to the sound discretion of the bankruptcy court. See Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 331, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971) (citation omitted). As such, the order does not involve a “controlling question” justifying interlocutory review. See Herold v. Braun, 671 F.Supp. 936, 937 (E.D.N.Y.1987). Moreover, it does not involve an issue which can be characterized as one “to which there is a substantial ground for difference of opinion....” See § 1292(b). Further, the Court cannot discern how an immediate appeal of the order will “materially advance the termination of the litigation[.]” See id. Indeed, it can do nothing but delay the underlying action before the bankruptcy court.

9182407-7832

OPINION WARREN W. BENTZ, Bankruptcy Judge. Introduction On August 27, 2003, Erie Power Technologies, Inc. (“Debtor”) filed a voluntary Petition under Chapter 11 of the Bankruptcy Code. Ref-Chem, L.P. (“Ref-Chem”) is a construction company with which the Debtor had contracted prior to Debtor’s bankruptcy filing. Ref-Chem has filed a Proof of Claim in this case and Debtor has filed an Objection to the Proof of Claim. In response to Debtor’s Objection to Proof of Claim, Ref-Chem has filed its Opposition and Motion to Abate the Debtor’s Objection Pending Arbitration. Also, before the Court is DEBTOR’S MOTION TO HOLD REF-CHEM, L.P. IN CONTEMPT FOR THE WILLFUL VIOLATION OF THE AUTOMATIC STAY (“Motion”). A hearing was held on June 28, 2004 at which the Court heard the arguments of counsel and set a briefing schedule. We have received and reviewed the briefs of the parties and find that all of the parties should proceed with the pending arbitration to resolve the underlying issues. Factual Background Debtor is a global supplier of technology solutions and services to the power industry and selected energy-intensive industries. In 2001, Bastrop Energy Partners, L.P. (“Bastrop”) contracted with Duke/ Flour Daniel (“DFD”) to construct a power facility in Bastrop, Texas (“Bastrop Project”). DFD, in turn, subcontracted with Debtor to furnish and install various portions of the power facility, including two (2) Heat Recovery Steam Generators (“HRSGs”). In connection with the Bas-trop Project, Debtor obtained a Payment and Performance Bond in the amount of $6,520,000 from Fidelity & Guaranty Insurance Underwriters, Inc. (“Fidelity”). On or about April 20, 2001, Debtor entered into a Field Construction Contract with Ref-Chem for the original amount of $5,036,459 for the installation of the two (2) HRSGs (“Subcontract”). A dispute arose between Debtor and Ref-Chem over the scope of the work and amount due under the Subcontract. Ref-Chem filed suit against the Debtor in the Texas State Courts (the “Lawsuit”). The Lawsuit included claims for breach of contract and fraud. Debtor removed the Lawsuit from the Texas State Court to the United States District Court for the Western District of Texas (“District Court”) and then filed a motion to compel arbitration and to stay further proceedings in the Lawsuit pending completion of arbitration. The District Court granted Debtor’s motion to compel arbitration. Debtor then initiated the arbitration action against Ref-Chem. Ref-Chem filed an Answer and Counterclaim and made a Demand Against Fidelity. Fidelity was joined in the arbitration proceeding. The arbitration is currently pending as the matter known as The American Arbitration Association: Aalborg Industries, Inc. v. Ref-Chem Corporation v. Aalborg Industries, Inc. and Fidelity and Guaranty Insurance Underwriters, Inc., Case No. 55 110 00061 02 PJL (the “Arbitration”). Ref-Chem also filed with the Bastrop County, Texas Court an Affidavit of Claim for a Mechanic’s Lien in the amount of $3,532,826 on the Bastrop Project. Debtor posits that DFD required it to remove Ref-Chem’s Mechanic’s Lien and in order to do so, Debtor obtained a surety bond from Fidelity to indemnify DFD against the lien (“Release Bond”). Debtor asserts that it was required to post collateral to secure the Release Bond and that after deduction of the $30,598 premium for the Release Bond, a balance of $556,940 of the Debtor’s funds is held as collateral by Fidelity (the “Bond Escrow”). Debtor further asserts that when its former parent, Aalborg-Denmark, sold the Debtor in September, 2002 to DaeKyung Machinery & Engineering Co., Ltd. (“DKME”), Debtor was required to place $3,889,020 of its funds in escrow (the “Calfee Escrow”) and that the $3,889,020 in escrow, along with $556,940 paid to secure the Release Bond, are Debtor’s assets that will be used to indemnify Fidelity for any judgment that Ref-Chem might achieve in the Arbitration. A hearing on the Arbitration was scheduled to begin in September, 2003. As a result of Debtor’s bankruptcy filing, the Arbitration hearing was initially stayed by the American Arbitration Association (“AAA”). The AAA advised the parties by letter dated September 16, 2003 of its position: This will acknowledge receipt of a copy of a petition in a bankruptcy proceeding filed in the Court by Aalborg Industries, Inc. Since the filing of such a petition acts to automatically stay the instant arbitration proceedings, the Association is suspending administration of the above matter at this time. We ask the parties to notify the Association on or before September 26, 2003, if you wish to hold this matter in abeyance. Absent a response on or before September 26, 2003, we will close our files. The parties are requested to keep the AAA advised of further developments in the presently pending court proceedings. Ref-Chem advised the AAA of its position that its claims against Fidelity should proceed. Debtor took the position that the automatic stay provided by § 362 of the Bankruptcy Code applied to all parties to the Arbitration. The Arbitration panel considered the issue of “whether a bankruptcy case which stays the hearing of claims in arbitration against the Claimant is a bar to the case proceeding against the Claimant’s surety, when the surety has been properly joined in the arbitration and is not a party to the bankruptcy of the Claimant.” In a ruling dated February 24, 2004, the Arbitration panel stated that “[i]n the unanimous view of the arbitrators, the answer is ‘No,’ and this matter is ripe for hearing.” Debtor’s Motion followed. Debtor asserts that the Arbitration must be stayed as to all parties including a third party, Fidelity. According to the Debtor, a judgment against Fidelity in the Arbitration will immediately cause a dissipation of Debtor’s assets by loss of the Bond Escrow and may also place the Calfee Escrow at risk. Debtor asserts that there exists sufficient “unusual circumstances” for the Court to stay the entire Arbitration proceeding. Finally, Debtor asserts that agreement to arbitrate disputes between the parties should not be enforced and that Ref-Chem’s claim should be adjudicated through the claims resolution process in this Court. Ref-Chem asserts that the automatic stay does not apply to its claim against the third party, Fidelity, and that Debtor’s Objection to Ref-Chem’s Proof of Claim cannot circumvent Ref-Chem’s contractual right to arbitrate claims related to the Bastrop Project. Discussion The underlying contract that gives rise to the pending issues provides: Disputes between the Contractor [Debt- or] and Subcontractor [Ref-Chem] arising out of or relating to the Subcontract shall be resolved exclusively and finally by binding arbitration conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.... Thus, in the absence of bankruptcy, there is a valid agreement that requires the parties to arbitrate their contract disputes. Arbitration is favored in our judicial system. Hays and Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149, 1153-54 (3d Cir.1989) citing Shearson/American Exp., Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 3356, 87 L.Ed.2d 444 (1985). The Court of Appeals for the Third Circuit has determined that the Bankruptcy Court has no authority to deny enforcement of an arbitration clause in a non-core proceeding. Hays & Co., 885 F.2d at 1155-1157 (3d Cir.1989). Debtor posits that- its bankruptcy filing and the filing of a proof of claim by Ref-Chem renders the underlying action a claims resolution issue that is a core matter which must be adjudicated in the Bankruptcy Court.

8973036-23793

MURPHY, Circuit Judge. . This appeal arises out of an adversary proceeding brought by Robert F. Lang against debtor Marsha McQuarrie Lang to establish the non-dischargeability of a claim, determine Ms. Lang’s liability therefor, and award a money judgment. The bankruptcy court resolved these matters in Mr. Lang’s favor, and Ms. Lang appealed to the Bankruptcy Appellate Panel (BAP). When it became apparent that the appeal was untimely, Ms. Lang filed a motion for extension of time under Fed. R. Bankr.P. 8002(c) to file a second, timely notice of appeal. The bankruptcy court denied the motion because Ms Lang had not demonstrated the excusable neglect required for relief under the rule. Ms. Lang appealed to the BAP, which affirmed. Lang v. Lang (In re Lang), 305 B.R. 905 (10th Cir. BAP 2004). She now appeals to this court. We affirm the Rule 8002(c) ruling on the basis of the BAP’s opinion, which we formally adopt. We also reject, for reasons explained below, Ms. Lang’s attempt to use this appeal as a vehicle to raise jurisdictional objections relating to the underlying bankruptcy court decision on ' Mr. Lang’s substantive claim, i.e., the judgment from which she failed to take a timely appeal. Rule 8002(c) Ruling “The question of excusable neglect [under Rule 8002(c)] is by its very nature left to the discretion of the bankruptcy court whose decision should not be set aside unless the reviewing court, a district court [or BAP] or court of appeals, has a definite and firm conviction that the court below committed a clear error of judgment.” Eck v. Dodge Chem. Co. (In re Power Recovery Sys., Inc.), 950 F.2d 798, 801 (1st Cir.1991). Thus, the governing standard of review and the ruling at which it is directed are the same for us as it was for the BAP. See Lang, 305 B.R. at 908 & n. 15. We agree fully with the well-reasoned opinion of the BAP and, as we have on other appropriate occasions, we formally adopt the decision, attached as an appendix hereto, as our own. See, e.g., Hollytex Carpet Mills, Inc. v. Okla. Employment Sec. Comm’n (In re Hollytex Carpet Mills, Inc.), 73 F.3d 1516, 1518 (10th Cir.1996). Lack of Appellate Jurisdiction to Review Bankruptcy Court Jurisdiction Ms. Lang devotes a large portion of her appellate briefing to an attack on the bankruptcy court’s jurisdiction over the adversary proceeding resolved in favor of Mr. Lang as summarized above. Recognizing the procedural discontinuity between the judgment concluding the adversary proceeding and the collateral ruling before us, she seeks to bridge the gap by invoking the familiar principle that “[s]o long as a case is pending, the issue of federal court jurisdiction may be raised at any stage of the proceedings either by the parties or by the court on its own motion.” Ramey Constr. Co. v. Apache Tribe, 673 F.2d 315, 318 (10th Cir.1982). This argument has some facial appeal, but is undercut here by another, even more basic jurisdictional principle. The Supreme Court has made it clear that a court’s threshold determination of its jurisdiction is a prerequisite to any judicial action: “Without jurisdiction the court cannot proceed at all in any cause,” and, thus, “when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quotation omitted). This principle applies with equal force to appellate jurisdiction. See, e.g., United States v. Ceballos-Martinez, 387 F.3d 1140, 1143, 1146 (10th Cir.), cert. denied, — U.S. -, 125 S.Ct. 624, 160 L.Ed.2d 466 (2004); Butler v. Biocore Med. Techs., Inc., 348 F.3d 1163, 1166 (10th Cir.2003). Because our power to review any decision — including decisions involving a lower court’s subject matter jurisdiction— depends on our appellate jurisdiction, “[o]n every ... appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes.” Steel Co., 523 U.S. at 94, 118 S.Ct. 1003 (quotation omitted and emphasis added). Thus, “the question of this Court’s jurisdiction (i.e., our appellate jurisdiction) is antecedent to all other questions, including the question of the subject matter of the District Court.” Petroleos Mexicanos Refinacion v. MIT KING A (Ex-TBILISI), 377 F.3d 329, 333 n. 4 (3d Cir.2004) (holding appel lant’s challenge to district court’s subject matter jurisdiction could not be reached until appellate jurisdiction was established); accord Resolution Trust Corp. v. Sonny’s Old Land Corp., 937 F.2d 128,129 (5th Cir.1991) (“Before addressing the district court’s jurisdiction on removal, we must decide our own jurisdiction.”). While this court has not stated the point so explicitly, we have adhered to its substance. See, e.g., Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1276 (10th Cir.2001) (“Having established our appellate jurisdiction, we now turn to the merits of [this] appeal regarding the district court’s subject matter jurisdiction over [plaintiffs] state law claims.”). Two concrete examples will illustrate this important point and help to flesh out its application here. Suppose a party moved to dismiss a case for lack of jurisdiction and the district court denied the motion. Such a ruling is generally not subject to interlocutory appeal. See Magic Circle Energy 1981-A Drilling Program v. Lindsey (In re Magic Circle Energy Corp.), 889. F.2d 950, 954 (10th Cir.1989) (citing Catlin v. United States, 324 U.S. 229, 236, 6.5 S.Ct 631, 89 L.Ed. 911 (1945)); John E. Burns Drilling Co. v. Cent. Bank of Denver, 739 F.2d 1489, 1491 (10th Cir.1984) (same). But this well-established prohibition on interlocutory review would be left meaningless if, as Ms. Lang contends, the lack of appellate jurisdiction did not preclude review of questions of trial court jurisdiction: following the denial of a motion to dismiss for lack of jurisdiction, the. movant could bring an unauthorized appeal and still insist that the appellate court decide the jurisdictional Issue on the basis that such matters can be raised at any time. Or, more, directly germane to the present circumstances, suppose the same case proceeded to final judgment and no appeal was taken. Then months later, the unsuccessful movant filed an untimely notice of appeal. One of the most firmly rooted and fundamental principles of appellate practice is the rule that a timely appeal is .a prerequisite to appellate review. Yet Ms. Lang would have us hold that the untimely appellant could still insist on appellate re view because a jurisdictional challenge was involved. The direct application of the jurisdictional point made above is obscured here somewhat by the presence of two complicating circumstances that may divert attention away from the salient procedural facts, but in the end neither should have any effect on the analysis. First, the appellate jurisdictional deficiency here (Ms. Lang’s failure to take a timely appeal from the underlying judgment) arose at the BAP level, not our circuit level. But for this fact to have any pertinence, it would have to be possible for a party to cure an untimely appeal to one court by appealing the resultant dismissal of that appeal to the next higher court while actually seeking review of the underlying ruling of the trial court. That is not the law. Many decisions in the bankruptcy context demonstrate that an untimely appeal to an intermediate appellate court, a district court or BAP, precludes a subsequently reviewing circuit court from reaching the underlying bankruptcy court ruling even when the intermediate court has erroneously done so. See, e.g., Deyhimy v. Rupp (In re Herwit), 970 F.2d 709, 709-10 (10th Cir.1992); Arbuckle v. First Nat’l Bank of Oxford (In re Arbuckle), 988 F.2d 29, 32 (5th Cir.1993) (per curiam); Ramsey v. Ramsey (In re Ramsey), 612 F.2d 1220, 1221-22 (9th Cir.1980). And, consistent with the authority discussed earlier, the fact that the untimely appeal challenged the bankruptcy court’s subject matter jurisdiction would not alter that result. See Arbuckle, 988 F.2d at 32. Second, this case concerns the denial of Ms. Lang’s motion for extension of time to file the BAP appeal, not the dismissal of the BAP appeal itself. But this also is immaterial to the analysis. An unsuccessful motion to cure an untimely appeal cannot itself be the vehicle for review of the matter not timely appealed. Generally, a ruling on a post-judgment motion is subject to independent appeal separate from the underlying judgment, and this is true of proceedings on motions for extension of time. 15B Charles Alan Wright, et al., Federal Practice and Procedure § 3916, at 351, 375-76 (2d ed.1992); see, e.g., Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir.2004). The scope of this stand-alone appeal “should be restricted to the questions properly raised by the post-judgment motion [and] should not extend to revive lost opportunities to appeal the underlying judgment.” Wright et al., supra, § 3916, at 351; see, e.g., Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 627 & n. 2 (1st Cir.2000); cf. Stubblefield v. Windsor Capital Group, 74 F.3d 990, 993-94 (10th Cir.1996) (discussing Rule 60(b) cases). This principle is especially apt here, where the limited reach of the post-judgment appeal is clear as a matter of logic and common sense — if a party appealing the denial of an extension motion were allowed to challenge the underlying substantive order, the whole proceeding on the motion actually under review would be rendered meaningless. In sum, we adopt the BAP’s decision affirming the denial of Ms. Lang’s motion to extend the time for appeal from the bankruptcy court’s disposition of the underlying adversary proceeding. With that disposition, we fully resolve the appeal before us. Accordingly, we do not reach any other matters pressed by Ms. Lang, in particular her challenge to the bankruptcy court’s jurisdiction over the claims disposed of in the adversary proceeding from which no timely appeal was taken. The judgment of the Bankruptcy Appellate Panel is AFFIRMED. APPENDIX IN THE UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE TENTH CIRCUIT ROBERT F. LANG, M.D., Plaintiff-Appellee, v. Marsha McQuarrie lang, Defendant-Appellant. Case No. UT-03-081 OPINION Submitted on the briefs: Marsha M. Lang, pro se. Steven W. Dougherty of Anderson & Kar-renberg, Salt Lake City, Utah,- for Plaintiff-Appellee Robert F. Lang. Before CORNISH, MICHAEL, and McNIFF, Bankruptcy Judges. MICHAEL, Bankruptcy Judge. Marsha McQuarrie Lang, (“Ms. Lang”) appeals from a decision that found the press of other business in her legal practice did not excuse the failure to timely file a notice of appeal. In addition, Ms. Lang contends that the lower court erred when it refused to stay its judgment of non-dischargeability pending her appeal. We find no error in either decision. I. Factual Background This appeal arises out of an adversary proceeding in which Robert F. Lang, M.D. (“Dr. Lang”) contended that certain obligations owed to him by Ms. Lang were Uon-dischargeable under § 523 of the United States Bankruptcy Code. On November 7, 2001, the bankruptcy court ruled that these obligations were non-dis-chargeable, and awarded a money judgment to Dr. Lang. Ms. Lang appealed this decision to this Court. She also obtained a stay of the judgment pending appeal from the bankruptcy court. On May 28, 2003, this Court rendered its decision. While the Court agreed that the debt owed to Dr. Lang was not dischargea-ble, it disagreed with the bankruptcy court as to the manner in which damages were calculated, and remanded the case to the bankruptcy court for further proceedings. One of the judges dissented in part, taking the position that bankruptcy courts lack the authority to enter monetary judgments in dischargeability actions. On August 7, 2003, Ms. Lang filed in the bankruptcy court a motion (the “Stay Motion”) asking the court to continue-the stay pending appeal in effect, anticipating a further appeal of the bankruptcy court’s decision. In the body of -the Stay Motion, Ms. Lang asked the bankruptcy court “to stay the Second Judgment which will enter as per remand of the Bankruptcy Appellate Panel.” The Stay Motion was cryptic in nature. Although it contained a recital of the legal elements required to obtain a stay pending appeal, it contained no factual allegations to support those legal elements. Dr. Lang responded to the Stay Motion on August 22, 2003. On August 14, 2003, after remand, the bankruptcy court entered its Memorandum Opinion and its Final Order and Judgment on Remand, again finding the obligations to be non-dischargeable and entering a monetary judgment against Ms. Lang in the amount of $126,891 plus interest. On August 19, 2003, the bankruptcy court amended its memorandum opinion, but did not alter its order and judgment. Ms. Lang filed a notice of appeal (the “Notice of Appeal”) from the judgment on August 29, 2003, fifteen days after its entry. Because it appeared that the Notice of Appeal was untimely, this Court entered an Order to Show Cause Why Appeal Should Not Be Considered for Dismissal as Untimely. Ms. Lang timely responded, and the matter was referred to a motions panel of this Court for determination. On October 8, 2003, this Court entered its Order dismissing the appeal for lack of jurisdiction, finding that the Notice of Appeal had not been timely filed. On September 4, 2003, more than ten days after the bankruptcy court entered its judgment, Ms. Lang filed with the bankruptcy court a pleading entitled “Motion for Extension of Time to File Appeal” (the “Extension Motion”). In the Extension Motion, Ms. Lang alleged that: Defendant, Debtor, Marsha McQuarrie Lang, failed to file [the notice of appeal] on Monday, August 25, 2003 through excusable neglect. Ms. Lang has been involved in a disputed guardianship/eus-tody case concerning the Goff children of a magnitude that has required hours of travel between Salt Lake City, Provo and Manti on the following dates in August: August 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 26, 27, 28. The case has also consumed 82.57 hours between August 11 and August 29, 2003 not counting travel time of over thirty (30) hours for which the clients were not billed. See attached billing statements. Because of the demands of this case, in addition to Ms. Lang’s regular hearings, mediations, depositions and office appointments (20), the first deadline of August 25, 2003 (August 24, 2003 was a Sunday) was inadvertently missed and Ms. Lang filed her Notice of Appeal on August 29, 2003, four days later. Ms. Lang did not assert any grounds for an extension other than the time devoted to the Goff litigation. Dr. Lang filed a response to the Extension Motion, arguing that Ms. Lang’s involvement in other matters did not constitute excusable neglect. The bankruptcy court held a hearing on the Extension Motion and the Stay Motion on September 17, 2003. Both parties made oral argument; however, Ms. Lang presented no evidence in support of either motion. At the conclusion of that hearing, the bankruptcy court denied both motions. A written order memorializing the bankruptcy court’s decision was entered on September 29, 2003. This appeal followed. II. Jurisdiction This Court has jurisdiction to hear timely-filed appeals from “final judgments, order, and decrees” of bankruptcy courts within the Tenth Circuit, unless one of the parties elects to have the district court hear the appeal. Neither party elected to have this appeal heard by the United States District Court for the District of Utah, thus consenting to review by this Court. III. Standard of Review We review the bankruptcy court’s rulings denying an extension of time and refusing to grant a stay pending appeal for abuse of discretion. “Under the abuse of discretion standard[,] ‘a trial court’s decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.’ ” An abuse of discretion occurs when the trial court’s decision is “ ‘arbitrary, capricious or whimsical’ ” or results in a “manifestly unreasonable judgment.” As one court has put it, “[t]he question is not how the reviewing court would have ruled, but rather whether a reasonable person could agree with the bankruptcy court’s decision; if reasonable persons could differ as to the issue, then there is no abuse of discretion.” IV.Discussion A. The Extension Motion The Notice of Appeal has been found to be untimely. We must decide whether the bankruptcy court abused its discretion in refusing to extend the time for filing a notice of appeal. In seeking the extension, Ms. Lang relied upon Fed. R. Bankr.P. 8002(c)(2), which provides that: A request to extend the time for filing a notice of appeal must be made by written motion filed before the time for filing a notice of appeal has expired, except that such a motion filed not later than 20 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect. An extension of time for filing a notice of appeal may not exceed 20 days from the expiration of the time for filing a notice of appeal otherwise prescribed by this rule or 10 days from the date of entry of the order granting the motion, whichever is later. Ms. Lang claims that her involvement in state court litigation during the time in question constituted “excusable neglect” for purposes of this rule, and that ■ the bankruptcy court abused its discretion, in failing to allow the late filing of the Notice of Appeal. In support of her position, Ms. Lang relies upon the decision of the United States Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership. The facts of Pioneer are dissimilar to the case at bar. Pioneer involved the filing of a proof of claim in a Chapter 11 case. In Pioneer, the claimants filed their claims after the claims bar date. The bankruptcy court refused to recognize the claims due to their untimeliness. The claimants argued that the bankruptcy court should ■ consider the claims as timely filed under Fed. R. BaNKR.P. 9006(b)(1), which allows a late claim- to considered timely if the late filing is the result of “excusable neglect.” They also argued that excusable neglect was present because a claims deadline was unusual in a Chapter 11 bankruptcy case and the claims deadline was “buried” in the fine print of the notice of meeting of creditors. The court of appeals reversed the decision of the bankruptcy court in its entirety, finding that excusable neglect had been shown, and ordered that the claims be treated as timely. The Supreme Court affirmed the decision of the court of appeals. In doing so, the Supreme Court stated that excusable neglect is “a somewhat ‘elastic concept’ and is not limited strictly to omissions caused by circumstances beyond the control of the movant.” . In its holding, the Court concluded “that the determination is ... an equitable one, taking account of all relevant circumstances....” Factors specifically enumerated include: (1) the danger of prejudice to opposing parties; (2) length of delay in judicial proceedings and its impact; (3) the reason for the delay, including whether it was in the control of the late-filer; and (4) whether the late-filer acted in good faith. The Supreme Court found excusable neglect to be present because the deadline for filing claims in Pioneer was not made a conspicuous part of the notice sent to creditors and that a claims deadline such as the deadline at issue was “outside the ordinary course in bankruptcy cases.” However, the Court stated that in considering the issue of excusable neglect, “we give little weight to the fact that counsel was experiencing upheaval in his law practice at the time of the bar date.” Ms. Lang has not cited, and the Court in conducting its own reséarch has been unable to locate, a single case that stands for the proposition she asks us to adopt: namely, that the failure to comply with the deadline for the filing of a notice of appeal due to the press of other business constitutes excusable neglect. Virtually all of the published decisions on the issue, both pre-and post-Pioneer, reach the opposite conclusion. We believe that the language contained in Pioneer to' the effect that “upheaval” in a law practice is not probative of excusable neglect precludes Ms. Lang’s rebanee upon Pioneer. The only basis set forth in the Extension Motion to justify Ms. Lang’s neglect in this matter was the press of other business. However, in the brief that was submitted to this Court, Ms. Lang argues that she will be prejudiced if the Extension Motion is not allowed because she will be unable to prosecute her appeal. Ms. Lang may be correct, but regardless, dismissal of an appeal is not the type of prejudice that will support a finding of excusable neglect. If it were, then all neglect could be considered excusable, because every finding that an appeal has not been timely filed results in the termination of the appeal. The bankruptcy court followed established precedent and did not abuse its discretion in denying the Extension Motion. B.- The Stay Motion Ms. Lang also asks us to reverse the decision of the bankruptcy court denying the Stay Motion. The factors to be considered by a court in determining whether to grant a stay pending appeal are well established. They are (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will suffer irreparable injury unless the stay is granted; (3) whether granting the stay will result in substantial harm to the other parties to the appeal; and (4) the effect of granting the stay upon the public interest. The decision of whether to grant a stay pending appeal is left to the discretion of thé bankruptcy court. We review this decision for an abuse of discretion. In this case, the bankruptcy court determined that Ms. Lang did not establish a sufficient likelihood of success on the merits of her appeal. We cannot say that the bankruptcy court abused its discretion. On appeal, all three judges of this Court agreed that the debt owed to Dr. Lang by Ms. Lang was not dischargeable; the only disagreement was over whether the bankruptcy court had the ability -to enter a monetary judgment for the amount due. Therp is ample authority to- support the proposition that bankruptcy courts can enter a monetary judgment. To agree with that authority is not an abuse of discretion. There is yet another reason to affirm the decision of the bankruptcy court with respect to the Stay Motion. . In the Stay Motion and at oral argument, Ms Lang asked the bankruptcy court to .stay the “Second Judgment which will enter as per remand of the Bankruptcy Appellate Panel.” However, the judgment that Ms. Lang seeks to stay is no longer subject to appeal given this Court’s decision affirming the denial of the Extension Motion. Therefore, the Stay Motion is moot. V. Conclusion The decision of the bankruptcy court is AFFIRMED. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). Ap-pellee's motion to waive oral argument is granted, appellant's motion for oral argument is denied, and the case is ordered submitted on the briefs. . The BAP issued a show cause order and then dismissed the appeal for lack of jurisdic- " tion. Debtor has not appealed that dismissal order.

4234324-5688

LEVIN, District Judge. This suit for infringement of two patents is brought by William H. D. Hinchman, the owner of the patents, and by Florence and Roger Mcllwain and the Underground Products Co., as exclusive licensees, against the Jim Robbins Company. The two patents cover different aspects of a conduit spacer. One is Hinchman patent No. 2,462,399, hereinafter referred to as the utility patent, which covers the structural aspects of the spacer. The other is Hinchman design patent No. 139,568, hereinafter referred to as the design patent, which is for the design and ornamental appearance of the spacer. The spacer is constituted of a closed frame having a similarly formed top and bottom. It will be seen from the perspective view of the spacer shown here that the top and bottom sides are formed with opposed arcuate portions which serve as seats for the conduits. Reinforcing ribs connect the arcuate seats at their midsection. The purpose of conduit spacers is to position uniformly conduits or pipes, which are commonly used to position and house high voltage and other lines in tiers or banks prior to embedding these in concrete. The ■conduit spacers are placed in tiers with intervening rows of conduit, and concrete is poured over the structure. The spacer is provided with openings which permit the use of steel reinforcing rods along the long .axis of the installation for strength and through which concrete is poured to form a homogeneous mass. Such installations are commonly made under or adjacent to roads or in the walls of buildings and in other inaccessible places. The difficulty and cost of repairing them makes it necessary that they embody .a maximum of strength. The defendant manufactured the spacers for the plaintiffs from November, 1950, until June, 1951, when the plaintiffs began to manufacture them. Shortly after this the defendant again began to manufacture the accused device, this time without authorization from the plaintiffs. The defendant’s spacer is so strikingly ■similar to that described in the claims in the utility patent that, if the patent is valid, it is infringed. However, the question of validity of the utility patent must be decided adversely to the plaintiffs since their patent does not satisfy the tests of invention. As initially submitted to the Patent Office, the utility patent had seven claims. All were rejected as meeting full equivalents in prior patents. After persistent presentations to the Patent Office, one claim was allowed and the patent issued. The spacer has utility and wide acceptance in the industry. The court is not unmindful of the mandate that it ibe clearly convinced of the correctness of its position before striking down a patent which has had the careful consideration of the Patent Office and has met with technical and economic success. But this case is not a close one where evidence of commercial success should be resolved in favor of a finding of invention. Goodyear Tire & Rubber Co., Inc., v. Ray-O-Vac Co., 321 U.S. 275, 279, 64 S.Ct. 593, 88 L.Ed. 721. The idea of the conduit spacer is neither new nor novel. Indeed, there is a long prior art history in regard to conduit spacers and conduit spacing devices, both patented and unpatented. Patent No. 461,677 issued to Greenfield in 1891 for an improvement in an electrical conduit, which apparently was not before the Patent Office when it considered the Hinchman application, discloses a conduit spacer structurally and functionally the equivalent of that claimed by Hinchman. Greenfield taught the use of insulating material, with necessary openings to hold the conduit and other openings to permit the passage of the insulating matrix while in a liquid state. The only element of the Hinchman spacer lacking in the Greenfield spacer is the provision for reinforcement of the spacer; and mere provision for reinforcement is not invention, see In re Campbell, 48 F.2d 915, 18 C.C.P.A., Patents, 1351. Moreover, the use by Hinchman of I-beam and T-beam sections, which are themselves well-known expedients for giving strength with lightness, cannot be considered invention merely because a new material is used in the manufacture of the device, see Associated Plastics Companies v. Gits Moulding Corporation, 7 Cir., 182 F.2d 1000, 1005. Other patents have disclosed the elements of the Hinchman utility patent, either singly or in combination. Parker No. 1,795,884 and Parker No. 1,818,922 showed the use of nonconducting conduit carriers, and the use of the concrete envelope; Koch No. 1,834,404 and Lockwood No. 2,354,919 illustrated the use of pipe spacers closely resembling that of Plinchman, lacking only holes to permit the use of steel reinforcing rods and to allow the passage of the unhardened matrix. It is also true that they did not suggest the use of insulating material. Hinchman makes much of the superior qualities of lightness, resistance to corrosion and decay, ease of manufacture, and electrical nonconductance conferred on his spacer by the use of plastic and other similar materials. However, it is not invention simply to substitute one material for another in a product to obtain the benefit of some of its known advantages. If the substitution of materials is to constitute invention the use for which monopoly is sought must not be a mere utilization of the obvious advantages of the material, nor an analogous extension of them, but rather the use must be new and novel or founded on genuine originality in the appropriation of the new material to the old use. Compare Evr-Klean Seat Pad Co. v. Firestone Tire & Rubber Co., 8 Cir., 118 F.2d 600 and Electro Mfg. Co. v. Yellin, 7 Cir., 132 F.2d 979, 981.

3719760-18643

MEMORANDUM AND ORDER KATZ, District Judge. Post-trial motions before this Court contest a judgment of $2,926,875 based on a jury verdict finding defendants Emhart Industries and Notifier Company liable to plaintiff Linda Pearsall for $2,451,938 (to which the Court added delay damages in the amount of $474,937) as a result of a fire in her home that killed her husband and two children. The jury found that the heat and smoke detectors manufactured by the defendants’ predecessors in interest were defective and negligently manufactured, and that the defects and negligence were substantial factors in causing the deaths of plaintiff’s family members. Defendants claim that the plaintiff failed to meet her burden of proof that the alarms failed to work properly on the eve ning of the fire, that the court incorrectly charged the jury on damages for the childrens’ wrongful death, that the verdict on damages in the children’s survival action should be set aside because the jury misunderstood the testimony of plaintiffs’ economist, that the court erred in submitting plaintiff’s claim for emotional distress to the jury, that the court should not have sent certain exhibits into the jury room, that the court erred in charging the jury on plaintiff’s “malfunction theory”, that the plaintiff’s counsel’s closing argument was improper, that the verdict was excessive, that delay damages are unconstitutional and improper, that the. court should not have permitted plaintiffs’ counsel to read a portion of a HUD pamphlet critical of heat detectors, that the court should not have allowed into evidence pamphlets with testing instructions, and that failure to warn could not have caused the harms to the plaintiff. I find that the trial record amply supports plaintiff’s claims that these badly designed and dangerous alarms did not work when there was a fire. Plaintiff provided sufficient evidence for a jury to conclude that defendants’ predecessor in interest manufactured defective products, did so negligently and that the defects and negligence were substantial factors in causing the deaths of the plaintiff’s husband and children. Defendants argue that, with regard to the instruction as to damages for the wrongful death of plaintiff’s two children, the court committed two errors. First it is alleged that the court charged the jury that it could award monetary damages for the expected pecuniary value of the children’s services and emotional support beyond the age of majority. Secondly, defendants argue that parents may not be awarded damages for the loss of emotional support of their children. Under Pennsylvania law, absent a strong factual presentation to indicate continued support beyond the age of majority, parents may recover in an action for the wrongful death of a minor child compensation for services and support only up until the age of majority. See Sinn v. Burd, 486 Pa. 146, 151-152 n. 3, 404 A.2d 672 n. 3 (1979); Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549 (1930). The Court’s charge in this case was that only support prior to the age of majority was compensable in a wrongful death action. The instruction on damages for services and emotional support immediately followed the court’s instruction that the plaintiff could be awarded sums of money that the two children would have contributed to her support up until the time of their majority. In addition, the Court’s, instruction that the plaintiff could be awarded compensation for “the monetary value of the emotional support that she lost” was not in error. See Thomas v. Conemaugh Black Lick Railroad, 133 F.Supp. 533, 543 (W.D. Pa.1955) aff'd 234 F.2d 429 (3d Cir.1956) (care, training, advice, guidance); Gaydos v. Domabyl, 301 Pa. 523, 530, 152 A.2d 549, 552 (1930) (superintendence, attention, care, education). Defendants next claim that the jury award on the children’s survival action should be overturned due to the likelihood that the jury was confused by the testimony of the plaintiff’s economist, Dr. Jerome Staller. At one point in his testimony, Dr. Staller testified that the two children, Paula and Laurie Pearsall, would be expected to earn $567,664 and $591,209 respectively if they finished high school but did not go bn to college. Later, on cross examination, Dr. Staller “conceded” that fringe benefits should not have been included in the above figures. The jury awarded $597,664 and $621,209 in the survival action — exactly $30,000 higher for each child than Dr. Staller’s estimate. Defendant argues that the jury must have accepted Dr. Staller’s estimates without making any deletion for the incorrectly included fringe benefits and that this decision was based upon confusion. The law, however, is well established that courts should not overturn jury verdicts absent exigent circumstances such as a case of manifest and extreme abuse of the jury’s function. See Bruce Lincoln-Mercury, Inc. v. Universal C.I.T. Credit Corp., 325 F.2d 2, 21-22 (3d Cir.1963). Moreover a court will not inquire into the purely internal workings of the jury’s decisional processes on the mere suspicion of confusion. See Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1247 (3d Cir.1971), cert. denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971); Beron v. Kramer-Trenton, 402 F.Supp. 1268, 1271 n. 5 (E.D.Pa.1975), aff'd, 538 F.2d 318 (3d Cir.1976). Since the jury was bound neither by Dr. Staller’s estimate nor his concessions, I will not upset the jury’s award in this case. Nor do I deem the jury’s overall verdict excessive. An award of damages in a wrongful death action will be set aside only if “clearly beyond reason” or if it is the “result of a misconception of the law, or of prejudice, partiality, or sympathy.” Jenkins v. Pennsylvania Railroad Co., 220 Pa.Super. 455, 289 A.2d 166 (1972). The losses which were proved in this case fully justify the amount of the verdict. Defendants argue that plaintiff’s claim for emotional distress should not have been submitted to the jury since the plaintiff did not witness the deaths of her husband and children from the fire. In recent years Pennsylvania has expanded the right of a bystander who “witnesses” a traumatic event to recover for emotional distress. In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) the Pennsylvania Supreme Court held that a mother who saw her own child struck and killed by a negligently operated vehicle could recover. The Court’s decision placed much emphasis on its conclusion that the injuries to the bystander were foreseeable. The Supreme Court has applied a three factor test to determine whether injuries to a bystander from witnessing a- wrongful death are foreseeable: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Yandrich v. Radic, 495 Pa. 243, 247, 433 A.2d 459, 461 (1981); Sinn v. Burd, 486 Pa. 146, 170-71; 404 A.2d 672, 684 (1979) (quoting from Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968)). In Sinn, the Court found that “[wjhere the bystander is a mother who witnessed the violent death of her small child and the emotional shock emanated directly from personal observation of the event, we hold as a matter of law that the mental distress and its effects is a foreseeable injury.” 486 Pa. at 173, 404 A.2d at 686. The Court specifically noted that it was not considering the case of a parent who was merely notified of an accident but was not present at the scene of the injury or death. 486 Pa. at 173 n. 21, 404 A.2d at 686 n. 21. In Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981) the Pennsylvania Supreme Court addressed the issue it had expressly left open in Sinn — whether a parent who was neither a witness to the accident nor in the immediate vicinity thereof, but arrived at the scene after his son had already been taken to the hospital could maintain an action for negligent infliction of emotional distress. Applying the foreseeability standards ennunciated in Sinn the Court found that the father could not bring such an action. The Court found that the plaintiff was not located near the scene of the accident and that the shock to the plaintiff did not result from the sensory and contemporaneous observance of the accident. 495 Pa. at 247, 433 A.2d at 463. I find that the facts of the instant case support a claim by Mrs. Pearsall for infliction of emotional distress. Upon arriving home, Mrs. Pearsall witnessed the fire-fighters bringing the blaze under control. She testified that she stood near the bodies of her husband and children at the scene of the fire. She arrived at the hospital shortly before the ambulance arrived and witnessed the bodies of her husband and daughter being carried off the ambu-, lance. She testified that she couldn’t pick up her daughter because “she [Laurie] was real hot.” Mrs. Pearsall also offered substantial evidence proving her claims of subsequent emotional distress. That Mrs. Pearsall arrived at the scene of the fire shortly after her husband and children had actually died in no way diminishes the foreseeability of her emotional distress. Upon arriving home she witnessed the fire and had no idea whether her husband and children were alive or dead. She saw and later touched the bodies of her family as the fire that took their lives was still smoldering. Her emotional distress was not caused merely by others notifying her of the accident. Instead, plaintiff’s shock and emotional distress resulted from the direct impact upon her senses of the fire and its aftermath. I am satisfied that the emotional distress of this mother witnessing the fire and its carnage is foreseeable to a manufacturer of defective alarms and, therefore, meets the standards enunciated in Sinn v. Burd and Yandrich v. Radic. See also Bliss v. Allentown Public Library, 497 F.Supp. 487 (E.D.Pa.1980) (direct visual observation of accident unnecessary to state claim for negligent infliction of emotional distress); General Motors Corp. v. Grizzle, 642 S.W.2d 837 (Tex.App. 1982) (mother arriving upon scene moments after accident may recover for infliction of emotional distress); Nazaroff v. Superior Court, 80 Cal.App.3d 553, 145 Cal.Rptr. 657 (1978) (same). Defendants next argue that the Court should not have allowed certain heat alarms admitted into evidence to go to the jury during its deliberations. I exercised my discretion to allow the devices to go out with the jury because they were admitted into evidence and would be useful to the jury in its deliberations. See Wilson v. Pennsylvania Railroad Co., 421 Pa. 419, 432 n. 8, 219 A.2d 666, 673 n. 8 (1966). Defendant has failed to show persuasively that any impermissible experimentation. took place. See Lanza v. Poretti, 537 F.Supp. 777 (E.D.Pa.1982). Furthermore, the jurors had seen at least some of the heat alarms disassembled and reassembled repeatedly in open court and, therefore, could not have been misled into believing that the alarms in the jury room were necessarily in the same condition as when they left the control of defendants’ predecessor in interest. Defendants also argue that the Court should not have allowed plaintiffs to proceed on both a strict liability theory, in part, based on an unexplained malfunction, and a negligence theory. Defendants’ reliance on Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super. 386, 473 A.2d 120 (1984) for the proposition that the two theories are incompatible is misplaced. In Thompson, the plaintiff introduced evidence to show not only that the lessor of the crane was liable due to a defect in the crane, but also that the operator of the crane was himself negligent. The Pennsylvania Superior Court held that the crane operator’s negligence may have been the cause of the accident rather than any alleged defect in the crane noting “[w]here the plaintiff’s strict liability case depends not upon the actual proof of a defect, but only upon the mere occurrence of a malfunction, it is inconsistent to permit him [the plaintiff] to proceed on the strict liability ground where he also advances a theory of human intervention which purportedly caused the harm.” 473 A.2d at 125 (emphasis added). In the instant ease, plaintiff’s strict liability theory did not rely only upon an unexplained malfunction. To the contrary, plaintiff produced significant evidence to demonstrate the existence of specific defects in the smoke and heat detectors. In addition, unlike the situation in Thompson, the same defendants were legally responsible for both the allegedly negligent act and the defect. Therefore, regardless of whether the plaintiff succeeded on the negligence theory or the product liability theory, the defendants are liable. Defendants next allege that certain comments made by the plaintiff’s counsel in his closing arguments were so inflammatory as to require a new trial. Upon review of the record, I find that the plaintiff’s counsel’s comments were within the bounds of reason and not unduly inflammatory or prejudicial. See Smith v. Evans, 421 Pa. 247, 251, 219 A.2d 310, 312 (1966). Defendants’ arguments that the imposition of delay damages pursuant to Pennsylvania Rule of Civil Procedure 238 violates constitutional principles are without merit. Federal and state courts have found delay damages compatible with both federal and state constitutional law. See Insurance Federation of Pennsylvania, Inc. v. Supreme Court of Pennsylvania, 669 F.2d 112 (3d Cir.1982); Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). Plaintiff’s non-constitutional arguments against imposition of delay damages are equally without merit. Defendant has failed to cite any authority to support its argument that delay damages are inappropriate for a case such as the one before this court. Defendants also allege that the admission into evidence during the redirect examination of its expert witness of a quotation from a publication by the United States Department of Housing and Urban Development (HUD) was in error due to its irrelevancy and prejudicial impact. The portion of the publication read to the jury was critical of heat alarms. Admission of the statement critical of heat detectors followed the earlier admission into evidence over plaintiff’s objection of a statement by the same witness on cross-examination that HUD approved non-battery, plug-in smoke detectors. The contested statement was relevant to rebut the defendants’ earlier suggestion that HUD had approved of the kind of devices involved in this case. In addition, the two statements taken together were not prejudicial to the defendant. Furthermore, defendants may be said to have “opened the door” to evidence on the subject of HUD’s views with regard to smoke and heat detectors thereby justifying the admission into evidence on redirect of the HUD excerpt. See United States v. Johnson, 502 F.2d 1373, 1376 (7th Cir. 1974), cert. denied, 420 U.S. 977, 95 S.Ct. 1402, 43 L.Ed.2d 657 (1975); United States v. Winston, 447 F.2d 1236, 1239-41 (D.C. Cir.1971); United States v. Lowe, 234 F.2d 919, 922 (3d Cir.1956), cert. denied, 352 U.S. 838, 77 S.Ct. 59, 1 L.Ed.2d 56 (1956); Cleary, McCormick’s Handbook of the Law of Evidence § 57 (2d ed. 1972); 1 Wigmore, Evidence § 15 (Tillers rev. 1983). Defendants further object to the Court’s allowing plaintiff’s counsel to show defendants’ expert witness, Gustav Hubert, two exhibits during cross-examination. These exhibits consisted of portions of instruction manuals which accompanied heat detectors sold to consumers by defendants. Neither of the instruction booklets, however, covered the particular smoke or heat detectors purchased by the plaintiff. The two booklets were used by the plaintiffs to contradict Mr. Hubert’s testimony that the instruction manuals sent out with heat detectors sold to plaintiff contained a certain method for testing whether the detector was in working order. On direct examination, Mr. Hubert testified that although he had no instruction booklets with him he recalled that they contained instructions regarding the specific testing method. On cross-examination, he could not explain why these two manuals did not have the same information on the testing procedures alleged to be in the earlier booklets which he claimed did accompany the product sold to plaintiff. Defendants argue that neither of the instruction manuals should have been admitted since a proper foundation had not been established. In addition, defendants argue that one booklet which was issued after the sale of the heat detectors to the plaintiff should have been excluded pursuant to Rule 407 of the Federal Rules of Evidence. Both of the instruction booklets were sufficiently authenticated. As to one of the manuals, Mr. Hubert testified that although it provided instructions for a different model than the ones purchased by the plaintiff the equipment was nonetheless similar. As to the other instruction manual a sufficient foundation was laid at a sidebar conference and through a deposition to show that it was issued by one of the defendants for similar heat alarms. Furthermore, the questioning of Mr. Hubert with regard to the presence or absence of the instructions for testing alarms in these booklets was probative as to his credibility and the reliability of his memory, especially in light of the fact that defendants had failed to produce the instruction booklets for the heat detectors purchased by the plaintiff. Defendants’ argument that the excerpts from the instruction manuals were inadmissible under Federal Rule of Evidence 407 is without merit. Rule 407 says that evidence of subsequent remedial measures may not be used to prove negligence or culpable conduct. Neither of the two instruction manuals included evidence of subsequent remedial measures taken by the defendants or their predecessors in interest. Both manuals served the purpose of impeaching the credibility of what appeared to be a rather extraordinary claim of good memory in remembering what old instruction booklets said, even though the booklets themselves were unavailable and inconsistent with those instruction booklets which were available.

4150968-11848

LOURIE, Circuit Judge. Miguel Ilaw (“Ilaw”) appeals from the U.S. Court of Federal Claims (“the Claims Court”) decision granting his request for voluntary dismissal, dismissing his complaint with prejudice, and declining to transfer his case to the U.S. District Court for the District of Columbia. Ilaw v. United States, 121 Fed.Cl. 408 (2015). For the reasons set forth below, we vacate and remand. Background This appeal relates to an elaborate web of cases before every echelon of state and federal court, which the Claims Court thoroughly described' in its opinion below. We now provide only a brief overview of that history. In April 2003, Ilaw started working for the Daughters of Charity Health System (“DCHS”) as an insurance verifier and patient account representative. It is unclear what his employment status was from July 2003 to February 2007, but Ilaw alleges that in February 2007, he was offered a full-time insurance verifier position in the DCHS Caritas Department. According to Ilaw, he was the “ ‘fifth youngest member and the only male member’ ” on his team. Id. at 411. In May 2010, after an “ ‘urgent reorganization,’ ” Haw’s team relocated to DCHS’s O’Connor Hospital. Id. While at O’Connor Hospital, Ilaw was assigned to a new female manager and female supervisor. According to Ilaw, from May to September 2010, he suffered gender-based discrimination and harassment under the new management. After alleged attempts to work with DCHS to “remedy and resol[ve]” the alleged harassment, Ilaw was eventually terminated on September 14, 2010. Id. The next day, Ilaw filed a disability claim at the Workers’ Compensation Appeals Board in San Jose, California. It is unclear from the record what eventually became of that claim. But on September 16, 2010, Ilaw filed a complaint at'the Equal Employment Opportunity Commission, alleging discrimination under Title VII, and requesting a Notice of Right to Sue. Ilaw subsequently retained counsel, and on November 5, 2010, sued DCHS in the Superior Court of Santa Clara County of California, claiming, inter alia, gender dis crimination and -wrongful termination. In March 2011, Ilaw agreed to alternative dispute resolution, signing a settlement agreement releasing DCHS from any and all claims. Over the next few days, however, Ilaw uncovered what he considered to be an objectionable provision, immediately withdrew from the agreement, and removed his attorney for “betrayal and misrepresentation.” Id. at 413. Thus began a barrage of pro se filings before state and federal courts. In the Superior Court, Ilaw moved to dismiss his November 5, 2010 action without prejudice. Yet despite that voluntary dismissal, Ilaw continued to file similar claims in the Superior Court. In September 2011, for example, Ilaw filed a claim against DCHS and its Caritas Department for wrongful termination. In April 2012, he filed two “fraud” claims: one against the State of California and the Superior Court; the other against Littler Mendelson PC, who represented DCHS. And by July 2012, Ilaw had earned “Vexatious Litigant Status” in the Superior Court. See id. at 414 n. 5. Indeed, as the Claims Court notes: “On multiple occasions during [Ilaw’s] State court proceedings, the court was notified of [his] vexatious litigant status and other litigations. On at least one occasion, [Ilaw] was denied permission to file in the State court based on his status as a vexatious litigant.” Id. at 416 (footnote omitted). While Ilaw’s various state actions, some of which he voluntarily dismissed, id. at 416 n. 7, meandered through the hierarchy, he filed additional related actions in federal court. In June 2011, for example, Ilaw filed an action in the United States District Court for the Northern District of California against DCHS claiming, inter alia, gender discrimination and wrongful termination. After failed appeals to the Ninth Circuit and the United States Supreme Court, Ilaw again filed a complaint in the district court naming Littler Men-delson, DCHS, the Judicial Counsel of California, and Judge Lucy Koh, among others, as defendants. He alleged violations of his constitutional rights and causes of action under 42 U.S.C. §§ 1983, 1985, and 1986. Ilaw’s allegations were repeatedly dismissed because, as the Ninth Circuit noted, “the questions raised in this appeal are so insubstantial as not to require further argument.” Id. at 419. On February 24, 2015, Ilaw filed the instant complaint in the Claims Court, naming the United States, Judge Lucy Koh, and Littler Mendelson as defendants. Ilaw alleged violations of his constitutional rights under the Fifth and Fourteenth Amendments; civil rights violations under 42 U.S.C. §§ 1983 and 1985; and the “tort of outrage/physical illness.” Id. at 419-20. Ilaw also filed a “motion/notice for disqualification of Ninth Circuit courts.” Id. at 420 (emphasis removed). Shortly thereafter, and before the defendants could file their responses, . Ilaw filed “an application for voluntary dismissal and removal to [the District Court for the District of Columbia].” Ap-pellee’s App. 56. The defendants filed a response in support of dismissal, but opposing any transfer and alternatively recommending summary dismissal. See id. at 59-67. Ilaw responded, opposing summary dismissal and arguing “[t]he Court should not dismiss the claim as frivolous as the Court is simply without jurisdiction over the subject matter and private parties.” Id. at 152. The Claims Court granted Haw’s motion for voluntary dismissal, but declined to transfer the case. With respect to the dismissal, the court reasoned that: (1) it only has jurisdiction over claims against the United States; thus, the claims against Littler Mendelson and Judge Koh were improperly before it, Ilaw, 121 Fed.Cl. at 424; (2) neither the due process nor equal protection clauses of the Fifth and Fourteenth Amendments are money-mandating, and thus neither can provide the court with jurisdiction under the Tucker Act, id. at 425-26; and (3) it has never had jurisdiction over claims under the Civil Rights Act, or those that sound in tort, id. at 426-27. The court then declined to transfer Haw’s case, finding that he failed to satisfy the statutory requirements for such a transfer. Id. at 428. Specifically, the court held that transferring Haw’s case would not be in the “ ‘interest of justice,’ given the exhaustive history of [Haw’s] prior, unsuccessful litigation in State and Federal Courts, and the prior finding by numerous courts of the frivolous and vexatious nature of [Haw’s] allegations.” Id. Moreover, the court noted that “Haw filed a complaint in the United States District Court for the District of Columbia, shortly after he filed the above captioned case in this court,” and that “absolutely no purpose would be served to transfer the above captioned case to the same court.” Id. The complaint was then dismissed with prejudice. Ilaw timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). Discussion In reviewing decisions of the Claims Court, we apply a de novo standard to legal conclusions, and a clear-error standard to factual findings. See Kansas Gas & Elec. Co. v. United States, 685 F.3d 1361, 1366 (Fed.Cir.2012). Procedural questions, such as the application of the rules governing voluntary dismissals, are legal in nature and therefore reviewed de novo. See, e.g., Youssef v. Tishman Const. Corp., 744 F.3d 821, 824 (2d Cir.2014) (quoting ISC Holding AG v. Nobel Biocare Fin. AG, 688 F.3d 98, 109 (2d Cir.2012)). This appeal turns on proper application of the Rules of the U.S. Court of Federal Claims (“RCFC”) governing voluntary dismissals. Under Rule 41(a)(1)(A)(i), a plaintiff may voluntarily dismiss his action by filing a “notice of dismissal” before the opposing party serves an answer or a motion for summary judgment. RCFC 41(a)(1)(A)(i). Unless the notice states otherwise, the plain text of the rule provides that such a dismissal is “without prejudice.” Id. 41(a)(1)(B). The court has no discretion in that respect. See, e.g., Youssef, 744 F.3d at 824 (citing Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077 (9th Cir.1999) (“[A] court has no discretion to exercise once a Rule 41(a)(1) dismissal is filed.”)). If, however, dismissal is not available under Rule 41(a)(1)(A)(i), viz., the plaintiff desires dis missal at a later time point in the proceedings, then “an action may be dismissed at the plaintiffs request only by court order, on terms that the court considers proper.” RCFC 41(a)(2). The court necessarily enjoys some discretion in issuing that order, including the authority to dismiss with prejudice. Cf. Walter Kidde Portable Equip., Inc. v. Universal Sec. Instruments, 479 F.3d 1330, 1336 (Fed.Cir.2007) (“Rule 41(a)(2) gives courts discretion in deciding whether to grant a plaintiffs motion to voluntarily dismiss and whether to impose terms and conditions in granting such a motion.”). In this case, Ilaw filed, what he terms, an “application for voluntary dismissal and removal to district court.” Appellee’s App. 56-58. This “application” was filed before the defendants served either an answer or a motion for summary judgment. See Ilaw, 121 Fed.Cl. at 410. And, in this “application,” Ilaw states: “Respectfully, indigent and pro se Plaintiff Miguel Ilaw is voluntarily dismissing his claim without prejudice under this Court for ‘lack of jurisdiction’ and transferring to United States District Court, The District of Columbia, above-entitled Case No. 15-0173-MBH.” Appellee’s App. 56, Ilaw argues that his application for dismissal invoked Rule 41(a)(l)(A)(i), see Appellant’s Br. 9, and thus, in light of the plain text of that rule, the Claims Court erred in dismissing with prejudice. The government responds by suggesting that Ilaw’s application, which arguably includes language requesting a transfer, instead falls under Rule 41(a)(2), see Appellee’s Br. 9-10, and thus the court had the discretion to dismiss the case with prejudice. The government also contends that the Claims Court properly rejected Ilaw’s transfer request, irrespective of its dismissal with prejudice. Despite the Claims Court’s thorough opinion delineating the boundaries of its jurisdiction and fully supporting its denial of transfer, we nonetheless agree with Ilaw that the court erred in dismissing his complaint with prejudice. We accordingly vacate and remand with direction to dismiss Ilaw’s complaint without prejudice. In light of that holding, any discussion of transfer is moot. Certainly, the form of Ilaw’s “application” leaves much to be desired: it does not invoke the exact language of the rule, lacking the proper “notice of dismissal” title, and it oddly incorporates a possible request for transfer. But we decline to penalize Ilaw, a pro se plaintiff, for less than ideal form. As some of our sister circuits have held in similar contexts, form should not usurp substance. In Smith v. Potter, for example, the Seventh Circuit found that a document captioned “motion to voluntarily dismiss” constituted a “notice of dismissal” for purposes of Rule 41(a)(1)(A)(i), warranting a dismissal without prejudice. 513 F.3d 781, 782-83 (7th Cir.2008); accord Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir.1976) (“Although Rule 41(a)(1) was not cited in the Motion for Dismissal, there is no question that the plaintiffs were acting pursuant to it. That it was styled a ‘Motion for Dismissal’ rather than a ‘Notice of Dismissal’ is, in our opinion, a distinction without a difference.”); cf. Garber v. Chi. Mercantile Exch., 570 F.3d 1361 (Fed.Cir.2009) (relying on Smith in holding that the parties’ agreement satisfied the requirements of Rule 41(a)(1)(A)(ii) despite deviations from the standard fox-m, i.e., the inclusion of an additional proposed order).

6083945-26671

HAMBLEN, Judge: Respondent determined deficiencies in petitioners’ income tax for the years 1979 and 1980, in the respective amounts of $140,005 and $56,815. The issues for decision are: (1) Whether $85,360 of losses incurred by petitioner Gerald A. Heggestad in 1980 in selling certain Treasury bill futures contracts were capital losses rather than ordinary losses; and (2) Whether petitioner Gerald A. Heggestad’s distributive share of partnership income from his commodities brokerage firm includes commissions he paid to the firm on trades for his personal account. FINDINGS OF FACT At the time they filed their petition herein, petitioners Gerald A. and Cheryl L. Heggestad resided in Scottsdale, Arizona. Petitioners filed joint individual income tax returns for 1979 and 1980 with the Internal Revenue Service Center, Kansas City, Missouri. Cross Country Commodities During the times pertinent to this case, petitioner Gerald A. Heggestad (Heggestad) was a general partner in Cross Country Commodities, a commodities brokerage firm. Heg-gestad had two other partners in Cross Country Commodities. All three partners at that time resided in the Sioux City, Nebraska, area. Heggestad was a registered commodities futures representative. Heggestad and his two partners decided to form Cross Country Commodities because they believed it would be more cost-effective for the three to share the expense of maintaining and operating a single office. Cross Country Commodities was. formed on October 1, 1978. Its stated business purpose was to engage in the brokerage of commodities futures as an associate brokerage firm in Sioux City, Nebraska. As an associate brokerage firm, the partnership would receive orders from customers to buy and sell various commodities futures contracts. However, the partnership would not be a member of the Chicago Board of Trade; it thus could not directly purchase or sell commodities futures contracts on the exchange. Instead, as an associate broker, the partnership would have other brokerage firms, who were members of the Chicago exchange, actually purchase and sell the futures contracts. Cross Country Commodities would receive a commission from the customer for this service in effectuating the customer’s transaction. It would pay 40 percent of the commission to the member brokerage firm through which the transaction was executed and retain the remaining 60 percent. For its fiscal year ending September 30, 1979, Cross Country Commodities received and retained $1,776,158 of commissions from brokering purchases and sales of commodities futures. For its last fiscal year covering the period October 1, 1979, through April 7, 1980, the partnership received and retained $614,166 of commissions. Pursuant to conducting its brokerage business, the partnership maintained a “house account.” Losses on customer accounts which were to be absorbed by the partnership were posted to this account. For example, the partnership would absorb the loss on a transaction where its employee had the customer’s order executed incorrectly. The partnership’s net income was shared equally by its three partners. Each partner’s share of annual net profits was to be distributed to him; his share of any net losses was chargeable against his capital account. The partnership agreement specifically recognized that each partner would engage in other businesses and activities for his personal account. The partners were not required to devote their entire time to the partnership’s brokerage business. The partnership agreement further allowed any partner to withdraw from the firm upon his giving 60-days written notice to the other partners. One of Heggestad’s partners withdrew from Cross Country Commodities in late 1979 or early 1980. Heggestad and the other partner subsequently decided to terminate their partnership in mid-March of 1980. The firm’s business was terminated by April 7, 1980. Heggestad’s Purchases and Sales of Commodities Futures Heggestad, in addition to the brokerage business of Cross Country Commodities, invested in commodities futures for his personal account. In investing for his own account, he made numerous purchases and sales of futures contracts on a number of different accounts. These various accounts were held by him either as sole owner or in partnership with other individuals. In connection with trades for these accounts, Heggestad paid his commodities brokerage firm Cross Country Commodities commissions totaling $215,701 in 1979 and $34,877 in 1980. Cross Country Commodities retained 60 percent of the commissions paid by Heggestad; the other 40 percent was paid to the member brokerage firms which executed the trades. In 1979 and 1980, Heggestad incurred substantial losses from his commodities futures trading. In 1979, he had losses totaling $231,685; in 1980 he had losses totaling $129,544. The financial losses he suffered caused him to discontinue his activities with respect to commodities futures. Of the $129,544 of losses in 1980, $52,495 were from Heggestad’s sale of six Treasury bill futures contracts on March 3, 1980, and March 4, 1980. These particular futures contracts had originally been purchased through other accounts. Each futures contract was transferred on March 3 or March 4, 1980, to an individual account of Heggestad’s prior to its sale. The futures contract, the account from which it was transferred, and the amount of loss on its sale, are as follows: Name and number of account Amount of Futures contract from which transferred loss on sale One March 1980 Treasury bill Eugene Heggestad, #92-92512 ($10,920) One March 1980 Treasury bill Bryan & Deis, #92-92616 (10,920), One March 1980 Treasury bill J.A. Tremonti, Inc., #92-92493 (10,945) One March 1980 Treasury bill J.A. Tremonti, Inc., #92-92403 (10,945) One June 1980 Treasury bill Dale H. Meyer, #92-92346 (1,795) One June 1980 Treasury bill Buestad Trading Co., #92-92555 (6,970) Heggestad held a 50-percent ownership interest in the Buestad Trading Co. account. As to the other accounts listed, other than for the Dale H. Meyer account, they were owned by persons with whom Heggestad in 1979 and 1980 had held joint investment accounts. Eugene Heggestad is Heggestad’s brother. Wilson Bryan and Jack Tremonti, in 1979 and 1980, were also investment partners of Heg-gestad’s on certain other accounts. Another $32,865 portion of Heggestad’s $129,544 1980 loss, relates to seven June 1980 Treasury bill futures contracts which he had purchased on February 14, 1980. These seven Treasury bill contracts were part of a larger purchase which Heggestad made that day through one of his solely owned personal accounts. On March 3, 1980, he incurred a $32,865 loss in selling the seven contracts. Cross Country Commodities Returns and Petitioners’ Individual Returns Cross Country Commodities on its partnership return for its fiscal year ending September 30, 1979, reported receiving $1,776,158 of commissions from commodities futures contracts transactions. The partnership also claimed as its cost of operations $362,698 for losses incurred on its house account. After including $519 of interest income, and taking into account a $365 loss incurred in selling an automobile used in the partnership’s business, deductions for salaries and wages, rent, taxes, depreciation, and other expenses, the partnership reported having $1,092,362 of ordinary income for the fiscal year. A Schedule K-l — Partner’s Share of Income, Credits, Deductions, etc.-1978 — showed Heg-gestad’s share of the ordinary income to be $364,120. Heggestad on the Schedule K-l was stated to have a 33.333334-percent interest in the partnership’s profits, losses, and capital. Cross Country Commodities on its partnership return for its last fiscal year covering the period October 1, 1979, through April 7, 1980, reported receiving $614,166 of commissions from commodities futures contracts transactions. The partnership claimed as its cost of operations $89,025 for losses incurred on its house account. After including $1,211 of interest income, and taking deductions for salaries and wages, rent, taxes, bad debts, repairs, depreciation, and other expenses, the partnership reported having $376,447 of ordinary income for its last fiscal year. The Schedules K-l for Heggestad and the partner who remained until the firm’s termination showed each had a $127,050 share of ordinary income; the Schedule K-l for the partner who withdrew from the firm showed his share of ordinary income was $122,347. Cross Country Commodities’ partnership returns were prepared by the Chicago, Illinois, office of a Big Eight accounting firm. Petitioners, on their joint individual income tax return for 1979, reported $364,120 of ordinary income as Heggestad’s distributive share of partnership income from Cross Country Commodities for its fiscal year ending September 30, 1979. The $364,120 was shown on a Schedule E — Supplemental Income Schedule (from pensions and annuities, rents and royalties, partnerships, estates and trusts, etc.), attached to petitioners’ return. On a Schedule C — Profit or (Loss) From Business or Profession, attached to their return, petitioners showed a $278,429 loss from Heggestad’s activity as a “commodities dealer.” The Schedule C stated that closing inventory was valued at the lower of cost or market. The parties have subsequently stipulated that the correct amount of the loss for 1979 is $231,685, rather than the $278,429 claimed on the return. Petitioners, on their joint individual income tax return for 1980, reported $127,050 of ordinary income as Heggestad’s distributive share of partnership income from Cross Country Commodities for its last fiscal year covering the period October 1, 1979, through April 7, 1980. The $127,050 was shown on a Schedule E attached to petitioners’ return. On a Schedule C attached to their return, petitioners showed a $129,554 loss from Heggestad’s activity as a “commodities dealer.” The Schedule C stated that closing inventory was valued at the lower of cost or market. The $85,360 of losses incurred by Heggestad on Treasury bill futures contracts— the characterization of which is in issue — are part of this $129,554 of loss claimed. Respondent’s Notice of Deficiency Respondent, in his notice of deficiency to petitioners, disallowed the deductions taken for the 1979 and 1980 Schedule C losses. Respondent determined the losses could not be recognized because the transactions were entered into for tax-avoidance purposes or lacked economic substance or because petitioners had not established the losses were incurred in the manner claimed. Respondent alternatively determined that if any portion of the claimed losses were bona fide and otherwise allowable, such losses were capital in character. Respondent, in the notice, further determined that petitioners were liable for $2,097.90 of self-employment tax for 1980. The parties have now stipulated that the correct amount of loss for 1979 is $231,685, rather than the $278,429 claimed. Respondent has conceded the losses incurred in 1979 and 1980 were bona fide and otherwise allowable. Petitioners have conceded that, with the exception of the $85,360 of losses in 1980 on Treasury bill futures contracts, the losses incurred in 1979 and 1980 were capital losses. OPINION At issue is the character of $85,360 of losses incurred by Heggestad in 1980 as either ordinary or capital losses and whether Heggestad’s distributive share of partnership income from his brokerage firm includes commissions he paid to the firm. Respondent’s determinations in his notice of deficiency are generally presumed correct. Petitioners bear the burden of proof and must establish such determinations to be erroneous. Welch v. Helvering, 290 U.S. 111 (1933); Rule 142(a), Tax Court Rules of Practice and Procedure. 1980 Losses on Treasury Bill Futures Contracts Petitioners contend the $85,360 of losses incurred on Treasury bill futures contracts which Heggestad sold in March 1980 were ordinary losses and not capital losses. Respondent disputes that the losses were ordinary losses. In claiming that the losses were ordinary losses, petitioners make no contention that these futures contracts qualify under any of the statutory exclusions listed in section 1221 of properties which are not capital assets. They do not assert that the futures contracts sold were inventory or property held for resale in the ordinary course of business to customers under section 1221(1), nor do they argue that the Treasury bill futures contracts are excluded from being capital assets by section 1221(5). Rather, they predicate their entitlement to ordinary loss treatment solely on coming within the judicial doctrine enunciated in Corn Products Refining Co. v. Commissioner, 350 U.S. 46 (1955). Accordingly, the Treasury bill futures contracts will be capital assets, ^nd the losses incurred in their sale will be capital, rather than ordinary, losses, unless the Corn Products doctrine is applicable. In Corn Products Refining Co. v. Commissioner, supra, the taxpayer was engaged in the manufacture of corn products. It purchased corn futures in order to insure a stable price for the raw product by eliminating price fluctuations caused by occasional supply shortages on the market. Its gains and losses were held to be ordinary because the property it was using as a hedge-corn — was an integral part of its business. Its trades in corn futures were thus taxed in the same manner as the corn it held as inventory. The Supreme Court’s focus in Corn Products was on the purpose for which the futures were held — as hedges. While the Supreme Court’s decision dealt specifically with hedging transactions designed to protect the taxpayer’s inventory supplies, the cases subsequently decided applied the Com Products doctrine to exclude from capital asset treatment those assets purchased as a “necessary and integral part of the taxpayer’s business.” Campbell Taggart, Inc. v. United States, 744 F.2d 442 (5th Cir. 1984); Hoover Co. v. Commissioner, 72 T.C. 206, 237 (1979). In Booth Newspapers, Inc. v. United States, 303 F.2d 916, 921 (Ct. Cl. 1962), the Court of Claims stated the following test for applying the doctrine: if securities are purchased by a taxpayer as an integral and necessary act in the conduct of his business, and continue to be so held until the time of their sale, any loss incurred as a result thereof may be fully deducted from gross income as * * * [a]n ordinary loss. If, on the other hand, an investment purpose be found to have motivated the purchase or holding of securities, any loss realized upon their ultimate disposition must be treated in accord with the capital asset provisions of the Code. Similarly, in Hoover Co. v. Commissioner, supra, we observed that: The touchstone of the Corn Products doctrine is that seemingly capital property transactions are entitled to ordinary treatment only when the transactions are an integral part of the taxpayer’s day-to-day business operations or are necessary to protect or generate ordinary operating income * * * [72 T.C. at 237.] It is upon this caselaw exception to capital asset treatment which petitioners rely. In W.W. Windle Co. v. Commissioner, 65 T.C. 694, 707-709 (1976), appeal dismissed 550 F.2d 43 (5th Cir. 1977), this Court discussed the various situations in which the Corn Products doctrine has been applied. Recently, however, in Arkansas Best Corp. v. Commissioner, 485 U.S_(1988), the Supreme Court rejected this broader scope given the Corn Products doctrine. In holding that losses on the sales of stock before it were capital rather than ordinary losses, the Supreme Court in Arkansas Best stated: We conclude that Corn Products is properly interpreted as standing for the narrow proposition that hedging transactions that are an integral part of a business’ inventory-purchase system fall within the inventory exclusion of §1221. * * * It is also important to note that the business-motive test advocated by [the taxpayer] is subject to the same kind of abuse [we] condemned in Com Products. [We] explained in Corn Products that unless hedging transactions were subject to ordinary gain and loss treatment, taxpayers engaged in such transactions could “transmute ordinary income into capital gain at will.” * * * Because the capital stock held [here] falls within the broad definition of the term “capital asset” in §1221 and is outside the classes of property excluded from capital-asset status, the loss arising from the sale of the stock is a capital loss. Corn Products Refining Co. v. Commissioner, supra, which we interpret as involving a broad reading of the inventory exclusion of §1221, has no application in the present context * * * [485 U.S. at _ .] It is thus apparent that the wider scope previously given to the Corn Products doctrine has been placed in question by the recent decision of the Supreme Court in Arkansas Best. We need not, however, attempt to resolve the present scope of the Corn Products doctrine in light of the Arkansas Best Corp v. Commissioner, supra, case. Petitioners bear the burden of proof. Rule 142(a), Tax Court Rules of Practice and Procedure. Even under the prior existing caselaw petitioners, on this record, have not established that they are entitled to ordinary loss treatment. The evidence presented fails to show that the Treasury bill futures transactions in question were an integral part of Heggestad’s partnership brokerage business. Heggestad essentially engaged in two activities: (1) Cross Country Commodities’ associate brokerage business involving the execution of commodities futures transactions for customers from which he as a partner earned commissions income; and (2) his investing in commodities futures for his personal account. Futures contracts were not purchased as hedges. Neither Heggestad or his partnership was involved in a business involving the consumption or marketing of the underlying commodities. In trading for his personal account, Heg-gestad dealt solely in futures contracts which he purchased in the hope of profiting from fluctuations in the price of the underlying commodity. He had no intention to make or accept delivery of the commodity. See Faroll v. Jarecki, 231 F.2d 281 (7th Cir. 1956). Petitioners contend the losses in question were incurred to protect the commissions income Heggestad derived from Cross Country Commodities and its associate brokerage business. Heggestad testified that he entered into the Treasury bill futures transactions in an attempt to recoup the losses which certain of his customers had suffered. According to Heggestad, when the anticipated profits failed to materialize, he personally absorbed the losses rather than charging the losses to the customers’ accounts. This was done, he stated, to preserve customer goodwill and to assure himself of future brokerage business. He explained that these particular individuals in addition to having large losses had relied on him to do their trading. As a result, he felt responsible for their losses. Heggestad admitted, however, to investing with some of these people on a joint or partnership basis. In some of these arrangements, Heggestad elaborated, he and the other individual would share the profits, but the individual would not be required to contribute any further capital beyond the initial investment. Under his arrangements with these individuals, this limitation on their losses applied both as to joint accounts held with Heggestad and accounts in which Heggestad had no interest. It thus seems some of these transactions were entered into by Heggestad for speculative purposes to reduce his own potential losses. In fact, one of the futures contracts was purchased on the Buestad Trading Co. account, an account in which Heggestad held a 50-percent interest. Another seven of the contracts were acquired on an individual account of which Heggestad was the sole owner. While the remaining five futures contracts were acquired on accounts in which Heggestad did not have an interest, in each instance, all but one of the owners were persons who had also invested extensively on a joint basis with Heggestad. One of these persons was Heggestad’s brother. In W.W. Windle Co. v. Commissioner, supra at 712-713, this Court held that property purchased with a substantial investment purpose is a capital asset even if there was a more substantial business purpose for the purchase. Under this formulation of the Corn Products doctrine, both at the acquisition and throughout the period of the property’s retention there must have been no substantial investment purpose. In adopting such test, we stressed that the Corn Products case, supra, had to be read in light of the close relation of the corn futures to the taxpayer’s inventory in that case. Particularly, where a more traditional form of capital asset was involved, we believed any broader expansion of the Corn Products doctrine would cause only greater uncertainty and controversy. W.W. Windle Co. v. Commissioner, supra at 713-714. As discussed, these transactions in issue were not inventory-related hedging transactions. On this record, petitioners have failed to show Heggestad did not have a substantial investment purpose. On the contrary, it seems Heggestad entered into these transactions for speculative purposes. He testified that when he acquired the futures contracts he thought the prices for the underlying Treasury bills would continue to rise. Any profits made would have accrued to Heggestad, either directly because the profits would ultimately have been posted to an account in which he held a joint or sole ownership interest or indirectly because the gain could be given over to a third party. Petitioners have thus failed to establish the lack of a substantial investment purpose on the futures contracts acquired. Eight of the futures contracts were purchased on accounts in which Heggestad held an interest. As to the remaining five futures contracts purchased on the other accounts, Heggestad nevertheless had an investment purpose. There was a great deal of flexibility, insofar as trading positions were transferred from Heggestad’s personal accounts to certain customer accounts. Heggestad testified that where he had acquired a number of profitable positions, he would on occasion give some of the contracts to his customers. In our view, the fact that five of the Treasury bill futures contracts were initially purchased on customer accounts, does not vitiate Heggestad’s investment purpose. Heggestad, in 1980, was trying to recoup his own losses, as well as those of certain customers for whom he traded. Under his investment arrangements with these customers, if unsuccessful he would have to bear the further losses. These customer accounts had or were soon to go debit. Heggestad would be personally hable for the debits. He, however, continued to chase the market in the hope of avoiding, or at least reducing, the loss he would otherwise suffer. Further, strong personal reasons also existed for Heggestad to enter into the transactions. One of the accounts was owned by Heggestad’s brother. The other accounts were those of individuals with whom Heggestad in the past had invested extensively on a joint or partnership basis. Moreover, we are not satisfied that a substantial business purpose relating to the conduct of the partnership’s brokerage business, much less any business purpose relating to his future brokerage activities, motivated Heggestad to enter into the transactions. Cross Country Commodities did have a house account for absorbing losses to be borne by the partnership. Heggestad, in his testimony, never fully elaborated on why the losses were not treated as a partnership expense. From his failure to do so, we infer his partners would not have permitted the losses to be charged to the partnership. In other words, they would have deemed the transactions as unrelated and not necessary to the conduct of Cross Country Commodities’ brokerage business. Lastly, while petitioners contend the transactions were undertaken to protect Heggestad’s future commissions income, he, about the time the futures contracts were sold, had decided to cease all his activities pertaining to commodities futures and retire. He testified that because of the large losses he suffered in trading for his own account, he was “broke.” In conclusion, petitioners even under the prior existing caselaw would not be entitled to ordinary loss treatment under the Com Products doctrine. We, therefore, hold the 1980 losses incurred by Heggestad on the Treasury bill transactions were capital, and not ordinary, losses. Heggestad’s Distributive Share of Partnership Income Petitioners contend Heggestad’s 1979 and 1980 distributive share of partnership income from Cross Country Commodities should not include the commissions he paid to the partnership. In making this argument, petitioners cite Benjamin v. Hoey, 139 F.2d 945 (2d Cir. 1944), a case decided under the 1939 Code. Respondent, in response, notes that with the enactment of section 707(a) Congress has expressly rejected the aggregate view of transactions between a partner and his partnership adopted in Benjamin v. Hoey. Section 707(a) generally provides that where a partner engages in a transaction with his partnership other than in his capacity as a member of the partnership, the transaction shall be viewed as occurring between the partnership and one who is not a partner. Section 1.7074(a), Income Tax Regs., states that such transactions include transactions where the partnership renders services to the partner. The difference between the entity theory of present section 707(a) and the prior aggregate theory adopted in cases such as Benjamin v. Hoey, supra, was succinctly summarized in Weller v. Brownwell, 240 F. Supp. 201, 208-209 (M.D. Pa. 1965), as follows: Prior to the enactment of the 1954 Code there was confusion regarding the characterization of income received as a result of a partner’s dealing with the partnership. One point of view held that a partner dealing with his partnership is considered to be dealing with himself to the extent of his interest in the partnership. This was known as the aggregate approach, i.e., the partnership is no more than the aggregate of the individual partners. Another point of view was the so-called entity approach, i.e., a partner in dealing with his partnership is considered to be dealing with the partnership as a separate and distinct entity. In the 1954 Code, Congress expressly adopted the “entity” approach. [Fn. ref. omitted.]

12113176-27371

OPINION Tietjens, Judge: The Commissioner determined that Troy State University (hereafter petitioner) is liable for $5,559.26, plus interest, as transferee of assets of Beard Memorial Hospital, 3hc. (hereafter transferor), for the taxable period March 1, 1966, to October 1, 1966. The issue for decision is whether amounts treated as gain under section 1245 are excludable from transferor’s gross income by reason of either section 115 (a) (1) or constitutional limitations on the Federal power to tax State instrumentalities. This case was fully stipulated pursuant to Rule 122, Tax Court Rules of Practice and Procedure. The facts which we deem necessary for decision will be referred to below. From 1957 to 1967, petitioner was an Alabama educational institution named Troy State College, managed and controlled by the State board of education of Alabama as provided in section 438 of title 52 of the Alabama Code. By legislative enactment in 1967, section 509 (116) of title 52, petitioner was placed under the exclusive jurisdiction, supervision, and control of a board of gubernatorially appointed trustees of which the Governor and the State superintendent of education were ex-officio members, and was renamed Troy State University. When the petition in this case was filed, petitioner’s principal place of business was Troy, Ala. Transferor was organized and incorporated as an Alabama corporation on May 1, 1948. At all times relevant to this proceeding its principal business place was Troy, Ala., and its only business activity was holding and renting hospital facilities to James O. Colley, Jr. (hereafter Colley), and William P. Stewart (hereafter Stewart), who were physicians and equal copartners doing business as Beard Hospital and who owned equally all issued and outstanding stock of the transferor. These hospital facilities, which constituted all transferor’s noncash assets, consisted generally of a hospital building and lot, a nurses home and lot, hospital equipment, fixtures, and furniture. Included as part of the hospital equipment were air-conditioners, X-ray machines, heaters, nurse call and antenna systems, and similar equipment incidental to the operation of a hospital and nurses home. Included as part of the fixtures were an elevator, a furnace, and air-conditioner. Included as part of the furniture were sundry furnishings incidental to the operation of a hospital and nurses home. On September 26,1966, Colley and Stewart soldjand transferred all issued and outstanding stock of transferor to petitioner. The transaction was part charitable contribution, part sale. On October 1,1966, in what petitioner deemed to be an appropriate exercise of its duties, petitioner caused the transferor to be liquidated and to distribute all of its assets to petitioner and cancel all of its stock. The transferor’s Federal income tax return for the period March 1 to October 1,1966, was filed with the district director of internal revenue, Birmingham, Ala. The return was designated “Final Beturn.” The assets transferred and distributed by the transferor to petitioner consisted of the same assets described above, of which the hospital equipment and the furniture and fixtures were of a type described in section 1245(a)(3), and approximately $28,000 cash. By reason of the liquidation, petitioner was the actual transferee of all assets of transferor. The fair market values of the hospital equipment and of the furniture and fixtures transferred and distributed by transferor to petitioner, as of October 1, 1966, were $30,000 and $10,000, respectively. The adjusted bases to transferor of the distributed hospital equipment and the furniture and fixtures, as of October 1,1966, were $16,743.99 and $2,961.46, respectively. As of October 1,1966, depreciation claimed and allowed to transferor after December 31,1961, with respect to the distributed hospital equipment and the furniture and fixtures totaled $37,153.33 and $6,330.94, respectively. On October 1,1966, petitioner leased all the distributed assets back to Colley and Stewart for a term of 2 years, with a 1-year renewal option, at an annual rent of $20,000. Rent paid by Colley and Stewart to petitioner during the term of this lease to June 30, 1969, totaled $53,333.12. Under this lease, the hospital remained open for the general public until Troy’s new municipal hospital was completed, at which time Stewart and Colley ceased leasing the facility. Subsequently, the facility has been used by the petitioner. On its Federal income tax return for the period March 1 to October 1, 1966, transferor reported no section 1245 gain or loss with respect to the transfer and distribution of the personal property. In his statutory notice of deficiency, the Commissioner determined that transferor realized taxable income in the amount of $19,586.95 during the tax year March 1 to October 1, 1966, from disposition of section 1245 property. Having distributed all assets in the liquidation, transferor had thereafter no funds for the payment of Federal income tax if any is determined in this proceeding to be due. The Commissioner determined against petitioner, as transferee, the deficiency, plus interest thereon as provided by law, in income tax of transferor for the tax year March 1 to October 1, 1966. The fair market value of the assets transferred by the transferor to petitioner is in excess of that deficiency, plus that interest as provided by law. Petitioner argues that, although section 1245 treated certain amounts as gain upon the liquidation of the transferor, that gain is excludable from the transferor’s gross income under section 115(a)(1). Petitioner cites section 1.1245-6 (e), Income Tax Pegs., which states that the provisions of section 1245 do not “change into taxable income any income which is exempt under section 115.” In addition, petitioner argues that the United States Constitution impliedly prohibits the tax determined by the Commissioner because it is a tax imposed on an instrumentality of the State of Alabama. Section 115 (a) (1) excludes from gross income— income derived from any public utility or the exercise of any essential governmental function and accruing to a State or Territory, or any political subdivision thereof, or the District of Columbia. Petitioner argues, as we understand it, that the section 1245 gain “accrued” to the State of Alabama through petitioner and that the trans-feror exercised an “essential governmental function.” Senate Report No. 80, 63d Cong., 1st Sess. (1913), 1939-1 C.B. (Part 2) 4, suggests that Congress intended “accrual” only when a State was in “receipt of income” as when, for example, payment was received under contract. See also the Senate debates, 50 Cong. Rec. 5320 (1913). The Board of Tax Appeals has said that the language “was intended to exempt * * * [a State or political subdivision] from taxation upon income which it actually receives.” Citizens' Water Co., 32 B.T.A. 750, 753 (1935), affd. 87 F. 2d 874 (C.A. 8, 1937), certiorari denied 302 U.S. 694 (1937). The Eighth Circuit has said that Congress inteoaded “tlie legal definition of tbe word ‘accrue’,” wbicli requires a vested right or an enforceable claim. Omaha Public Power District v. O'Malley, 232 F. 2d 805, 809 (C.A. 8, 1956), certiorari denied 352 U.S. 837 (1956). The requirement that income accrue to a State is not satisfied when income or a benefit merely “inures” to a State or when unused earnings may, at some future time, accrue to a State. Omaha Public Power District v. O'Malley, supra at 809; Citizens' Water Co., supra at 754; Nebraska-Iowa Bridge Corp. v. McCrory, an unreported case (D. Neb. 1959, 4 A.F.T.R. 2d 5552, 59-2 U.S.T.C. par. 9679). Because a corporation is considered a legal entity separate from its shareholders, the earnings of a corporation do not accrue directly to its shareholders. Accordingly, when a corporation is owned by a State or political subdivision, its earnings do not “accrue” to that State or subdivision even if dividends have been declared. Bear Gulch Water Co., 40 B.T.A. 1281 (1939), affd. 116 F. 2d 975 (C.A. 9, 1941), certiorari denied 314 U.S. 652 (1941); Citizens' Water Co., supra; Town of Fairhaven, Mass. v. United States, 135 Ct. Cl. 782, 142 F. Supp. 590 (1956). These general principles and the cases from which they are drawn indicate that any earnings of the transferor would not have been excluded from its gross income by section 115(a)(1). However, it is arguable that the fact that the transferor’s tax liability resulted from its liquidation distinguishes the instant case from those cases cited above. In other words, it is arguable that, at the time the transferor “disposed of” its property through liquidation so as to fall within the provisions of section 1245, petitioner received all of the assets of the transferor and that, at that time, any amounts treated as gain by section 1245 belonged and “accrued” to petitioner. Such an analysis, however, does not seem consistent with the congressional intent regarding sections 1245 and 115. Section 1245 was enacted to diminish the effect of certain depreciation deductions on taxable income. The House Report No. 1447, 87th Cong., 2d Sess. (1962), 1962-3 C.B. 470-471, explains the situation which section 1245 was intended to eliminate: Under present law, In the case of depreciable property the taxpayer may write off the cost or other basis of the property over the period of the useful life of the asset in his hands. This cost or other basis can be written off evenly (or in a ‘straight line’ over the asset’s life), under the declining balance method, under the sum-of-the-year’s digits method, or under any other consistent method which does not during the first two-thirds of the useful life of the property exceed the allowances which would have been allowed under the declining balance method. This depreciation deduction is a deduction against ordinary Income. If either the useful life of the asset is too short, or the particular method of depreciation allows too much depreciation In the early years, the decline in value of the asset resulting from these depreciation deductions may exceed the aetual decline of the value of the asset. Wherever the depreciation deductions reduce the basis of the property faster than the actual decline in its value, then when it is sold there will be a gain. Under present law this gain is taxed as a capital gain, even though the depreciation deductions reduced ordinary income. The taxpayer who has taken excessive depreciation deductions and then sells an asset, therefore, has in effect converted ordinary income into a capital gain. To correct this situation, section 1245 attempts to “recapture” excessive deductions taken against ordinary income which “accrued” over the period a depreciable asset was held. It attempts to recapture deductions taken against income by the transferor in the years Colley and Stewart were shareholders of the transferor and before the transferor was sold to the State. Those were the only years in which the trans-feror was “in receipt of income” within the language of the 1913 Senate report. Moreover, by explicitly subjecting liquidations to the operation of section 1245, H. Rept. No. 1447, 1962-3 C.B. at 475; S. Rept. No. 1881, 87th Cong., 2d Sess. (1962), 1962-3 C.B. 805, Congress directed that the liquidating corporation, the party which “disposed of” the assets, rather than its shareholders, should recognize gain. In this way, section 1245 attributes a constructive “receipt of income” to the transferor, a legal entity separate from petitioner, and suggests that income has “accrued” to the transferor and not to petitioner. We also note that section 21(86) of title 10 of the Alabama Code provides in part as follows: Corporations whose charters have expired, or which have been dissolved otherwise than by judicial decree, continue to exist as bodies corporate for a period of five years after such dissolution for the purpose of prosecuting or defending suits, settling their business and affairs, collecting and disposing of their properties and distributing their assets, but not for the purpose of continuing their business. The directors of such corporations shall be trustees thereof, with full power to settle their business and affairs, collect and pay their debts, sell and convey their properties, prosecute and defend suits, make distribution to stockholders or other persons entitled thereto and to do all things reasonable and necessary to bring about an orderly liquidation and settlement of the business and affairs of the corporations. Suits may be brought and property may be conveyed by such trustees or a majority of them in the name of the corporation. * * » See Railway Fuel Co. v. Ackerman, 269 Ala. 460, 114 So. 2d 142 (1959). Similarly, if property of a dissolved corporation has been distributed to stockholders, the stockholders “become quasi-trustees of such property, and subject to the equitable rights of * * * creditors [of the corporation] to subject it to their debts.” Kelly v. Andalusia Brick Co., 222 Ala. 203, 131 So. 559, 560 (1930). See also Boothton Coal Min. Co. v. Tennessee Coal, Iron & R. Co., 257 Ala. 705, 60 So. 2d 833 (1952); King v. Coosa Valley Mineral Products Co., 283 Ala. 197, 215 So. 2d 275 (1968). These provisions suggest that, for certain purposes, the transferor’s existence continued beyond October 1,1966, the date of liquidation, and that its assets were held by petitioner as a “quasi-trustee.” Transferor’s shell was not, as petitioner suggests, entirely shed. The continuation of transferor refutes petitioner’s argument that, unlike the “operating” company involved in Bear Gulch Water Co., supra, transferor was not an entity separate from petitioner. Moreover, the corporate continuation of transferor supports our conclusion that income attributed to the transferor under section 1245 did not necessarily “accrue” to petitioner upon liquidation of the transferor. Even if we were to hold that the section 1245 gain “accrued” to petitioner, we could not hold that that gain was “derived from * * * the exercise of any essential governmental function.” Although few cases have attempted to define “essential governmental function” as used in section 115 (a) (1) and its predecessors, that language has been pivotal in numerous cases determining what activities are constitutionally exempt from Federal taxation. See, for example, Allen v. Regents, 304 U.S. 439, 452 (1938), rehearing denied 304 U.S. 590 (1938); Brush v. Commissioner, 300 U.S. 352, 362 (1937); Flint v. Stone Tracy Co., 220 U.S. 107, 172 (1911). In fact, the requirement that income be “derived * * * from the exercise of any essential governmental function” contained in the Tariff Act of October 3,1913, section IIG(a), the language of which is almost identical to that of section 115 (a) (1), appears to have reflected the constitutional distinction between governmental, exempt activities and proprietary, nonexempt activities. See Flint v. Stone Tracy Co., supra at 172, where the Supreme Court made the following statement: It is no part of the essential governmental functions of a State to provide means of transportation, supply artificial light, water and the like. These objects are often accomplished through the medium of private corporations, and, though the public may derive a benefit from such operations, the companies carrying on such enterprises are, nevertheless, private companies, whose business is prosecuted for private emolument and advantage. For the purpose of taxation they stand upon the same footing as other private corporations upon which special franchises have been conferred. The true distinction is between the attempted taxation of those operations of the States essential to the execution of its governmental functions, and which the State can only do itself, and those activities which are of a private character. The former, the United States may not interfere with by taxing the agencies of the State in carrying out its purposes; the latter, although regulated by the State, and exercising declared authority, such as the right of eminent domain, are not removed from the field of legitimate Federal taxation. See also South Carolina v. United States, 199 U.S. 437, 461 (1905), where the Court limited the constitutional exemption to instrumentalities “of a strictly governmental character.” An analysis of those cases dealing with constitutional limitations on the Federal taxation of essential governmental functions indicates that the transferor’s section 1245 gain was not derived from such a function. We cannot accept petitioner’s argument that, because the liquidation of the transferor to allow petitioner to lease the hospital assets was an activity to support an educational institution, the trans-feror performed an essential governmental function. See Allen v. Regents, 304 U.S. at 452, where the Court said : If it be conceded that the education of its prospective citizens is an essential governmental function of Georgia, as necessary to the preservation of the State as is the maintenance of its executive, legislative, and judicial branches, it does not follow that if the State elects to provide the funds for any of these purposes by conducting a 'business, the application of the avails in aid of necessary governmental functions withdraws the business from the field of federal taxation. Nor can we accept petitioner’s argument that liquidation of transferor was an essential'governmental function because it was essential to petitioner’s rental of the assets without stockholders “various dividend procedures,” and a “myriad of miscellaneous returns and forms required of a separate corporation.” Liquidation may have been essential to avoid what petitioner calls an “expensive, inconvenient, artificial arrangement,” but avoiding such an arrangement was not essential to the functioning of a State government. Tbe petitioner and Commissioner have stipulated that the trans-feror’s “only business activity was holding and renting hospital facilities” to Colley and Stewart. Therefore the central question is whether such an activity is an essential governmental function. Under certain circumstances, the operation of a hospital may be such a function. Walter S. Goodale, 34 B.T.A. 697 (1936); Mallory v. White, 8 F. Supp. 989 (D. Mass. 1934); Mim. 3838 (revised), 1938-1 C.B. 181, 186, declared obsolete by Rev. Rul. 67-406, 1967-2 C.B. 420, 422. Courts have held that, under other circumstances, operation of a hospital is not an essential governmental function. Liggett & Myers Tobacco Co. v. United States, 13 F. Supp. 143 (Ct. Cl. 1936), affd. 299 U.S. 383 (1937), rehearing denied 300 U.S. 686 (1937); Cook v. United States, 26 F. Supp. 253 (D. Mass. 1939). From 1948 to 1966, the transferor was owned by Colley and Stewart, private citizens, and held and rented hospital facilities to its two shareholders. Apparently, these shareholders rather than the transferor operated the hospital. After the liquidation of the transferor in 1966, petitioner continued to lease the facilities to Colley and Stewart. Thus, during these relevant periods, the petitioner did not really maintain a hospital in the sense that the City of Boston, Mass., “established and maintained” a hospital in Mallory v. White, supra at 992. Petitioner has not argued that any statute required it to provide hospital services, that the hospitals were required to treat certain patients without charge, or that the hospital was charitable or devoted to the insane. Walter S. Goodale, supra; Cook v. United States, supra; Mim. 3838, supra. We find no reason to consider transferor’s operation one which is “essential to the execution of * * * [the State’s] governmental functions, and which the State can only do itself.” Flint v. Stone Tracy Co., 220 U.S. at 172; Liggett & Myers Tobacco Co. v. United States, supra at 145. Petitioner’s contention that it and transferor are exempt from taxa tion under' constitutional limitations on the Federal taxing power rests on the following language from Helvering v. Therrell, 303 U.S. 218, 223 (1938): “the United States may not tax instrumentalities which a State may employ in the discharge of her essential governmental duties.” Similar principles are expressed by the Supreme Court in numerous cases, including South Carolina v. United States, supra; Flint v. Stone Tracy Co., supra; and Brush v. Commissioner, supra. However, these cases cannot provide tax immunity to the trans-feror since, as we have concluded in our discussion above, the trans-feror was not engaged in an essential governmental function. In Helvering v. Gerhardt, 304 U.S. 405, 419-420 (1938), rehearing denied 305 U.S. 669 (1938), the Supreme Court discussed “two guiding principles of limitation for holding the tax immunity of State instru-mentalities to its proper function.” One of these principles: excludes from the Immunity activities thought not to he essential to the preservation of state governments even though the tax be collected from the state treasury. * * * The other principle, exemplified by those cases where the tax laid upon individuals affects the state only as the burden is passed on to it by the taxpayer, forbids recognition of the immunity when the burden on the state is so speculative and uncertain that if allowed it would restrict the federal taxing power without affording any corresponding tangible protection to the state government; even though the function be thought important enough to demand immunity from a tax upon the state itself, it is not necessarily protected from a tax which well may be substantially or entirely absorbed by private persons. * * * Even if the transferor were engaged in an essential governmental function, we should conclude that because of the second principle enunciated in Helvering v. Gerhardt, supra, petitioner is not entitled to constitutional immunity. Because, as the parties have stipulated, the transfer of stock to petitioner was “part charitable, part sale,” Colley and Stewart could have absorbed any tax for which the trans-feror would have been liable upon its liquidation. In this way, the tax on the section 1245 gain could be “substantially or entirely absorbed by private persons” and any burden on the State of Alabama is “speculative and uncertain.” See also Wilmette Park Dist. v. Campbell, 338 U.S. 411, 419 (1949). In its petition, petitioner alleged that the “Commissioner erred in asserting a transferee liability on * * * [petitioner], as there was no direct tax liability on the transferor.” In its brief, petitioner does not argue that it is not liable as transferee for any tax owned by the trans-feror. However, in part of his brief, the Commissioner argues that the fully stipulated facts contain evidence sufficient for us to hold that the Commissioner has carried his burden of proving petitioner liable as . transferee under sections 6901 and 6902. We believe that petitioner has conceded its liability as transferee for any taxes owed by the transferor. In any event we hold that petitioner is so liable. Transferee liability must be determined under the laws of Alabama. See Commissioner v. Stern, 357 U.S. 39 (1958). Those laws impose liability for corporate debts on the transferee of assets distributed in liquidation. King v. Coosa Valley Mineral Products Co., supra; Boothton Coal Min. Co. v. Tennessee Coal, Iron & R. Co., supra; Kelly v. Andalusia Brick Co., supra. See also Sloss v. State, 264 Ala. 680, 89 So. 2d 174 (1956), for a discussion of the relationship between section 6901 and the liability imposed by Alabama law on the distributee of the assets of a liquidating corporation. See also Louis Lesser, 47 T.C. 564, 585 (1967). We can conceive of no reason why petitioner, who received the transferor’s assets subject to the transferor’s debts, should be exempt from transferee liability merely because of its relationship to the State of Alabama. In his reply brief, the Commissioner informs us that petitioner may be entitled to a reduction in section 1245 gain to the extent it can show error in the Commissioner’s determination with respect to the recomputed basis of the elevator. See sec. 1245(a)(2)(B). Accordingly, Decision will be entered u/nder Buie 155. All statutory references are to the Internal Revenue Code of 1954, unless otherwise stated. From 1957 to 1967, ell. 21 of tit. 52 of the Alabama Code provided In part as follows: Sec. 438 Control. — The state board of education shall have the control and management of the several teachers’ colleges of the state, for white teachers, located at Florence, Jacksonville, Livingston, Troy, and of the Alabama State College for Negroes located at Montgomery. (1927 School Code, Sec. 474 ; 1949. p. 374, See. 1', appvd. July 18,1949.) Sec. 439 Rules for government; president and faculty. — The state board of education, upon the recommendation of the state superintendent of education, shall make rules and regulations for the government of the schools and shall elect the president of each of the several schools, and upon such president’s recommendations the members of tbe faculties, and shall fix the tenure and salary of each. (1927 School Code, Sec. 475.) Sec. 440 Extension work. — The state board of education, upon tbe recommendation of the state superintendent of education, shall prescribe the courses of study to be ottered and the extension work to be done by the several teachers’ colleges and the conditions for granting certificates, diplomas and degrees. (1927 School Code, Sec. 476; 1949, p. 374, Sec. 2, appvd. July 18,1949.) Sec. 441 Expenditure of appropriation. — The state board of education is charged with the responsibility of directing tbe expenditure of the annual legislative appropriations for the support and maintenance of the white teachers’ colleges located at Florence, Jacksonville, Livingston, Troy and of the Alabama State College for Negroes located at Montgomery. The state board of education is further charged with the responsibility of expending all special appropriations made to any or all of the above institutions, and of seeing that tbe conditions prescribed in the acts making the appropriations are fully complied with. (1927 School Code, Sec. 477; 1949, p. 374, Sec. 3, appvd. July 18, 1949.) Because we conclude that the sec. 1245 gain did not “accrue” to petitioner, we need ■not decide whether an accrual to petitioner would represent an accrual to the State of Alabama as required by sec. 115(a) (1). We need not determine whether, under the statutes establishing petitioner, ownership of the transferor’s stock by petitioner “Is tantamount to ownership thereof by the State of” Alabama. Bear Gulch Water Co., 40 B.T.A. at 1287. In Brush v. Commissioner, 300 U.S. at 362, the Court said that the modifying words “essential,” used In Flint v. Stone Tracy Co., 220 U.S. at 172, “strictly,” used In South Carolina v. United States, 199 U.S. at 461, and “usual,” used In Helvering v. Powers, 293 U.S. 214, 225 (1934), “must not be too literally contradistinguished.” Nevertheless, for purposes of construing sec. 115(a) (1), It Is significant that, In Flint v. Stone Tracy Co., decided In 1911, the Court spoke of exempting “essential governmental functions.”

4154142-24035

ORDER NELVA GONZALES RAMOS, District Judge. Before the Court is United States of America’s (the Government’s) “Motion to Dismiss Complaint for Lack of Jurisdiction Under Fed.R.Civ.P. 12(b)(1) and for Failure to State a Claim Under Fed.R.CiV.P. 12(b)(6) or In the Alternative Motion for Summary Judgment” (D.E. -10), along with Plaintiff, Colbert Rittgers’s (Rittgers’s) Response (D.E. 14) and the Government’s Reply (D.E. 15). For the reasons set out below, the Court declines to convert the motion to one for summary judgment under Federal Rule of Civil Procedure 56. The Rule 12 motion to dismiss is GRANTED. A. Rittgers’s Claims and the Arguments for Dismissal Rittgers filed suit against the Government and the Honorable .John McHugh, Secretary, Department of the Army (Army) regarding issues related to his employment at the Corpus Christi Army Depot (CCAD). Rittgers complains that, while conducting an investigation of the matter, the Government disclosed to Rittgers’s co-workers private information related to criminal accusations against Rittger involving child pornography found on his CCAD-allocated computer space. D.E. 3. He also complains of the Army’s use of his personal information (polygraph test results) and criminal investigation record without his effective consent in CCAD employment-related administrative actions taken against him. The claim contends that the Government and Army set out on a course to disclose private facts about Rittgers to the public. Id. Ultimately, the child pornography criminal charges against Rittgers were dismissed without prosecution, citing a lack of sufficient evidence to proceed. However, because his private information was disclosed, Rittgers claims to have suffered mental and emotional distress along with lost or diminished financial opportunities. He sues for violation of the Privacy Act of 1974, 5 U.S.C. § 552a, and under the Federal Tort Claims .Act (FTCA), 28 U.S.C. §§ 1346(b) and 2679(a), for invasion of privacy-false light, defamation-plus or stigma-plus, abuse of process, and intentional infliction of emotional distress. D.E. 3. The Government filed its motion. to dismiss (D.E. 10), arguing that this Court does not have subject matter jurisdiction or that Rittgers has failed to state a claim upon which relief may be granted because: • Rittgers did not file his claims within the statute of limitations of the Privacy Act; • Rittgers did not file his claims within the statute of limitations of the FTCA; • FTCA exceptions require dismissal based on sovereign immunity for claims arising out of libel, or slander, such as invasion of privacy by false light, defamation-plus, stigma-plus, and intentional infliction of emotional distress; and/or • Rittgers’s FTCA claims are preempted by the Federal Employees Compensation Act (FECA), 5 U.S.C. § 8116(c) et seq. D.E. 10. B. The Standards of Review The Supreme Court has admonished courts to be linguistically precise when dismissing claims in order to be clear whether the dismissal is truly one for lack of jurisdiction or if it simply involves a fatal claim-processing defect. Union Pacific R. Co. v. Brotherhood of Locomotive Engineers and Trainmen General Committee of Adjustment, Cent. Region, 558 U.S. 67, 81-82, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009). Defects in claims-processing, while they may be violations of mandatory prerequisites for relief, do not necessarily implicate a court’s “adjudicatory domain” — its jurisdiction. Id. Because the jurisdictional classification brings with it a difference in the order of decision, the standard of review,' and sometimes the prejudicial effect of any decision, the Court first determines which of the Government’s claims are jurisdictional. The motion paints the bases for dismissal with a broad brush, seeking dismissal on each basis under Rule 12(b)(1) for lack of jurisdiction or alternatively under Rule 12(b)(6) for failure to state a claim- upon which relief may be granted, without concern for which route the decisional process must take. For the reasons set out below, the Court finds that only the FTCA exception and FECA preemption claims are jurisdictional. 1. Rule 12(b)(1) Challenge to Jurisdiction Standard of Review When a Rule 12(b)(1) motion is filed together with other Rule 12 motions, the court should address the jurisdictional attack before addressing any attack on the merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom., Cloud v. United States, 536 U.S. 960, 122 S.Ct. 2665, 153 L.Ed.2d 839 (2002). Federal Rule of Civil Procedure 12(b)(1) requires dismissal for lack of subject matter jurisdiction if the court lacks statutory or constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). The btirden of proof is on the party asserting jurisdiction — Rittgers, here. Ramming, 281 F.3d at 161. In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of fact that may be in dispute. “Lack of subject matter jurisdiction may -be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed' facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Id. (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996)). 2. Rule 12(b)(6) Failure to State a Claim Standard of Review The test of pleadings under Rule 12(b)(6) is devised to balance a party’s right to redress against the interests of all parties and the, court in minimizing expenditure of time, money, and resources devoted to meritless claims. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In a Rule 12(b)(6) context, the burden of proof is on the party challenging the claim — the Government, here. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Furthermore, “Pleadings must be construed so as to do justice.” Rule 8(e). The requirement that the pleader show that he is entitled to relief requires “more than labels and conclusions^] a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2982, 92 L.Ed.2d 209 (1986)). Factual allegations are required, sufficient to raise the entitlement to relief above the level of mere speculation. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Those factual allegations must then be taken as true, even if doubtful. Id, In other words, the pleader must make allegations that take the claim from conclusory to factual and beyond possible to plausible. Id., 550 U.S. at 557, 127 S.Ct. 1955. The Twombly court stated, “[W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 570, 127 S.Ct. 1955. The Supreme Court, elaborating on Twombly, stated, “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In dismissing the claim in Iqbal, the Court stated, “It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.” 556 U.S. at 681, 129 S.Ct. 1937. A motion to dismiss for failure to state a claim upon which relief can be granted can be based not only on a plaintiffs claims but on matters that support an affirmative defense, such as limitations. Even if some allegations support a claim, if other allegations negate the claim on its face, then the pleading does not survive the 12(b)(6) review. A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations,, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim; that does not make the statute of limitations • any less an affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on -whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract. Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). In a Federal Rule of Civil Procedure 12(b)(6) context, the court construes the facts alleged in the complaint as true. The court may also consider: (a) documents attached to the complaint or identi fíed as central-to the claims made therein; (b) documents attached to the motion to dismiss that are .referenced in the complaint;. and (c) documents that are subject to judicial notice as public record. Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.2011); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.2000). C. The Claims 1. Violation of the Privacy Act The Privacy Act, 5 .U.SiC. § 552a, “ ‘safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records ... by allowing an individual to participate in’ ensuring that his records are accurate arid properly uséd.’” Jacobs v. Nat’l Drag Intelligence Center, 423 F.3d 512, 515 (5th Cir.2005) (quoting Henke v. U.S. Dep’t of Commerce, 83 F.3d 1453, 1456 (D.C.Cir.1996)). The Act provides four causes of action: (1) for an agency’s failure to amend an individual’s records pursuant to his request; ■ (2) for an agency’s denial of access to an individual’s records; (3) for an agency’s failure to maintain an individual’s records with accuracy, relevance,- timeliness, and completeness; and (4) for an agency’s failure to comply with other Privacy Act provisions, which has “an adverse effect on the individual.” 5 U.S.C. § 552a(g)(l)(A)-(D). Rittgers’s Privacy Act claim falls under the fourth category in that it complains of the failure to maintain records in - confidence, resulting in adverse employment decisions and reputational and consequent financial harm. Additionally, while listed separately from the Privacy Act in his complaint, Rittgers’s invasion of privacy-false light allegations may be construed as a claim under the Privacy Act. Fares v. United States Immigration & Naturalization Service, 50 F.3d 6, *2 (4th Cir. March 20, 1995) (general complaint that unauthorized persons viewed , immigration file was a claim under the Privacy Act). a. The Privacy Act’s Limitations Provision is Not Jurisdictional There is a large body of case law, including at least’one Fifth Circuit opinion holding that the Privacy Act’s limitations provision is jurisdictional. Smith v. United States, 142 Fed.Appx. 209, 210 (5th Cir.2005) (per curiam). The Seventh Circuit wrote, “The statutory time limitation ... is unquestionably an integral condition of the sovereign’s conserit to be suéd under the Privacy Act,” 'thus depriving the court of subject matter jurisdiction. Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987) (dismissing for lack of jurisdiction ori the limitations issue instead of the exhaustion of remedies issue that the district court had relied upon). However, the Supreme Court initiated a change in analysis of such issues in Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). The Court wrote that the government should enjoy no better rights with respect to limitations than suits between private parties. Accordingly, the Court held that federal statutes of liriiitations for claims against the United States were to include a presumption in favor of equitable tolling, thus rendering them non-jurisdictional. Id. The Court rejected the argument that the role of limitations in the waiver of sovereign immunity entitled the government to more favorable treatment. Id., pp. 95-96, 111 S.Ct. 453. Thus the Supreme Court sought- to establish a new general rule rather than address cases on an “ad hoc” basis. Id., p. 95, 111 S.Ct. 453. At least- two circuit courts have since followed Irwin’s dir rective and have held that the Privacy Act’s limitations provision is subject to equitable tolling and thus is non-jurisdictional. Rouse v. United States Dep’t of State, 567 F.3d 408, 417 (9th Cir.2009); Chung v. Dep’t of Justice, 333 F.3d 273, 277-78 (D.C.Cir.2003) (noting that the Privacy Act provides for specified instances of tolling, thus leaving room for equitable tolling)! While the Fifth Circuit’s per curiam opinion in Smith (holding - that the limitations issue is jurisdictional) was decided after Irwin, this Court notes that it was an unpublished opinion, and also notes that the Fifth Circuit’s post-Irwin holding that the FTCA limitations provision was jurisdictional has been abrogated by the Supreme Court. United States v. Kwai Fun Wong, — U.S. —, 135 S.Ct. 1625, 1633, 191 L.Ed.2d 533 (2015). This Court, following Irwin, holds that the Govern^ ment’s limitations argument is non-jurisdictional and is subject to decision only under Rule 12(b)(6). b. Limitations Bars Rittgers’s Privacy Act Claims Rittgers was required to bring his Privacy Act claim within two years of the accrual of the claim or, if a misrepresentation materially obscured the claim, within two years after discovery of the misrepresentation: An action to enforce any liability created under this section may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, without -regard to the amount in controversy, within-two years from the date on which the cause of action arises, except that where an agencyhas materially and willfully misrepresented any information required under this’ section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. 5 U.S.C. § 552a(g)(5). Reading his pleading liberally, Rittgers appears to complain both that his personal information was wrongly disseminated and that, through their forms, the.United States of America Criminal Investigation Division. (USACID) Special Agents failed to include in the “purposes” section of the consent form a warning that his personal information would be disseminated to CCAD as his employer, thus making a “misrepresentation material, to the establishment of liability of the agency.”- So in-evaluating the limitations argument, the Court considers both the time of the offending actions and the time Rittgers discovered them. This action was filed on February 20,2015. D.E. 1. Therefore, Rittgers must be’ able to show that his claim arose, or that he discovered his claim, on or after February 20, 2013. Rittgers’s pleading contains a timeline of events relevant to the limitations determination, summarized as follows: • September-15, 2009:. USACID Special Agent Mary E. Russell interviewed Rittgers; thereby improperly obtaining his personal information and failing to inform him of the principal purpose for which the information was requested. D.E. 1, pp. 3-t4„ • October 22, 2009: USACID Special Agent Matthew P. Titus conducted a polygraph test • on Rittgers without proper authority for obtaining his personal information and without properly informing Rittgers of the purpose for which the information would be used. Id., p. 7. • May 2010: CCAD notified Rittgers that his access to, information technolo- . gy network was suspended.. Id., p. 4. • August 2010: Rittgers’s supervisor placed him on administrative leave based , on the suspension of network access. Id. • November 19, 2010: His supervisor gave Rittgers notice of a Proposed Indefinite Suspension because there was reason to believe the child pornography complaint involving the use of the Government’s'computers. Id. • December 2, 2010: Rittgers was given the written decision that he was indefinitely suspended effective December 15,2010.' Id., pp. 4-5. • April 19, 2012: The Administrative Judge for the Merit Systems Protection Board (MSPB) issued an initial decision discussing the use of the child pornography accusation as a basis for Rittgers’s Indefinite Suspension. Id., p. 5. • May 15, 20Í2:.. Rittgers was arrested on a charge of possession of child por- , nography. Id., p, 6. • August 15, 2012: Rittgers received and reviewed the entire USACID Report of Investigation on the child pornography accusation. At that time, Rittgers learned that USACID had policies of nondisclosure’ that the Special Agents had allegedly violated when sharing their investigative information with CCAD representatives. Id., pp. 6-7; D.E. 14, p. 9. Rittgers’s allegations establish that the acts of dissemination of the information of which he complains took place prior to February 20, 2013.- And even if the Court were to ignore the notice of that dissemi-■ nation that should have been apparent to Rittgers from the administrative actions taken in connection with his employment, Rittgers admits that he knew of all of the facts relevant to making his claim by August 15, 2012. Yet Rittgers waited more than two years and six months to file his complaint — six months too long. Rittgers contends that the additional six months can be excused because he filed an administrative action under the FTCA and that administrative proceedings that ended his government employment were not completed until December 26, 2013. D.E. 14, p. 9. Rittgers’s response fails to supply any specificity regarding those administrative proceedings and is unsupported by any authority that the limitations period for Privacy Act complaints may be tolled in this manner. As the Government points out, the Privacy Act does not contain a provision requiring the exhaustion of any administrative remedies before suit for damages may be filed. 5 U.S.C. § 552a(g)(4), (5). A number of cases have pointed out that it is only when a claimant seeks to correct or amend a record, and not when the claimant sues for damages, that there is an administrative exhaustion requirement. See, e.g., Quinn v. Stone, 978 F.2d 126, 137 & n. 22, (3d Cir.1992); Diederich v. Department of Army, 878 F.2d 646, 647-48 (2d Cir.1989) (per curiam); Hubbard v. United States E.P.A. Administrator, 809 F.2d 1, 4 (D.C.Cir.1986); Hewitt v. Grabicki, 794 F.2d 1373, 1379 (9th Cir.1986); Nagel v. United States Dep’t of Health, Education & Welfare, 725 F.2d 1438, 1441 (D.C.Cir.1984); Thus there is no basis for tolling the limitations period while Rittgers pursued his administrative claim under other statutes. Rittgers waited six months too long to file his Privacy Act claims and he has failed to supply a legal, basis for excusing his delay. Rittgers’s Privacy Act claims are barred by. limitations. The Court GRANTS the motion under Rule 12(b)(6) and DISMISSES the Privacy Act claims brought against the United States. 2. Tort Claims Under the FTCA Rittgers brings five state law claims against the Government under the FTCA: invasion of privacy-false light, stigma-plus, defamation-plus, abuse of process, and intentional infliction of emotional distress. The FTCA provides the exclusive remedy for actions against the United States sounding in tort and seeking money damages. 28 U.S.C.' § 2679(b)(1); United States v. Smith, 499 U.S. 160, 162, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991). a. Sovereign Immunity: FTCA’s Exception for Defamation Claims There are thirteen specified exceptions to FTCA § 1346(b), which preclude government liability for certain intentional torts. See 28 U.S.C. § 2680(h). If a claim falls within the scope of one of these exceptions, the district court lacks subject matter jurisdiction. See Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994). The Court evaluates the Government’s challenge to claims for invasion of privacy by false light, defamation-plus, stigma-plus, and intentional infliction of emotional distress pursuant' to Rule 12(b)(1). It is well-established that the FTCA is a limited waiver of sovereign immunity. E.g., United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). And the provisions of 28 U.S.C. § 2680(h) state exceptions to that waiver of sovereign immunity, which must be strictly construed in favor of the government. Atorie Air, Inc. v. Federal Aviation Admin., 942 F.2d 954, 958 (5th Cir.1991). Thus the United States has sovereign immunity and the courts do not have jurisdiction with respect to any claim that can be construed to fall within one of the exceptions of § 2680(h). The question béfore the Court is whether Rittgers’s false light, stigma-plus, defamation-plus, and intentional infliction of emotional distress claims may be said to “arise out of’ libel or slander theories such that they are excepted from the FTCA waiver of sovereign immunity. To determine whether a claim is one “arising out of’ any of these enumerated torts, we focus on the conduct upon which the. plaintiffs claim is based. If the conduct upon which a claim is based constitutes a claim, “arising out of’ any one of the torts listed in section 2680(h), then the federal courts have no jurisdiction to hear that claim. Even if a plaintiff styles a claim so that it is not one that is enumerated in section 2680(h), the plaintiffs claim is still barred “when .the underlying governmental conduct ‘essential’ to the . plaintiffs claim, can fairly be read to ‘arise out of conduct that would establish an excepted cause of action.” , Thus, the FTCA bars a claim based on conduct that constitutes a tort listed in section 2680(h), even though that conduct may also.constitute another tort not listed in section 2680(h). Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994) (citations omitted). A plaintiff cannot evade the jurisdictional limitations of § 2680(h) by artful pleading that assigns some other label to what is, in essence, a libel or slander action. E.g., Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985) (assault and battery exception cannot be circumvented by labeling his claim as one for “negligence”). Each' of Rittgers’s challenged theories has; at its core, a reputational injury that could be posed as a libel or slander claim.- Each arises out of the same conduct — publication of information related to the child pornography accusations. Defamation-plus and stigma-plus are theories complaining of injuries to .Rittgers’s reputation that have commercial consequences. See generally, Phillips v. Vandygriff, 724 F.2d 490, 492 (5th Cir.1984) (citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) describing the nature of stigma-plus); Crowe v. County of San Diego, 608 F.3d 406, 444 (9th Cir.2010) (defamation-plus). Likewise, invasion of privacy-false light and intentional 'infliction of emotional distress involve reputational harm. Doe v. United States, 83 F.Supp.2d 833, 839-40 (S.D.Tex.2000); Bosco v. United States Army Corps of Engineers, 611 F.Supp. 449, 453 (N.D.Tex.1985). The Government has not waived its sovereign immunity as to these four theories because, in the context of this case, they each arise out of libel or slender and thus fall within the § 2680(h) exception. This Court does not have jurisdiction to hear these claims and they are DISMISSED under Rule' 12(b)(1). However, the Government has not challenged Rittgers’s claims for abuse of process under any exception to the FTCA. b. FECA Preemption

4002451-22589

OPINION and ORDER KEENAN, District Judge: BACKGROUND Plaintiffs have filed a class action lawsuit against the defendants arising out of the purchase of shares in a corporation that has purportedly located, and had rights in, the “fountain of youth.” Not surprisingly, it appears that the fountain was one which merely bubbled with litigation. The complaint alleges violations of the federal securities laws and RICO, and includes state law claims asserting common law fraud, breach of contract, negligent misrepresentation, legal malpractice and breach of fiduciary duty. Defendant Harley I. Lewin moves to dismiss the complaint on numerous grounds including lack of subject matter jurisdiction, plaintiffs’ lack of standing, failure to comply with FRCP 23.1 and FRCP 9(b). Lewin also asserts that the claims under RICO and the federal securities laws fail to state a cause of action. Defendant, David E. Jordan, has joined in Lewin’s motion. Facts During the 1970’s and 1980’s, American society has become increasingly “health-conscious.” This trend is reflected in the increased popularity of various spring and mineral water products. The plaintiffs’ complaint arises out of the defendants’ effort to capitalize on this market condition. Vilcabamba International Corporation, S.A., (“VIC”) was formed in 1978 and was incorporated in Panama. The company, allegedly run and controlled from New York, was created to market the water of Vilcabamba, Equador. Defendants sought to portray this water as one of the reasons that residents of Vilcabamba have very long lives. Promotional material allegedly written and distributed by the defendants indicates that there are proportionally more than four times as many people over age 65 in Vilcabamba than there are in the United States. Some of the residents live past the age of 100. While it is unknown at this stage of the litigation whether the defendants ever drank some of the water, it is alleged that a total of $6,000,000 was invested in VIC by over 300 people. It is charged that the 13,000 shares of stock which sold at an average price of $500 are currently worthless. Plaintiffs accuse defendants of engaging in a huge two-part fraud. The first part of the scheme took place from 1978-1984. In 1978, VIC was formed, Vilcabamba land was purchased, and construction began on the property. A United States trademark for “Vilcabamba Water” was obtained. However, the title to the land, and the United States trademark, were held by defendant Sidney Kahn in his own name and not by VIC. The complaint alleges that from 1978-1984, the defendants induced the plaintiffs to invest in VIC based on several misrepresentations and omissions. These included statements that VIC owned land and a water bottling factory in Vilcabamba, that VIC owned the “Vilcabamba Water” trademark, and that VIC was affiliated with Vilcabamba International Corporation of Equador. Promotional materials were allegedly prepared by the defendants in the United States, and were distributed in the United States and Europe. Plaintiffs aver that phase two of the scheme began in 1984. At that time, defendants Kahn, Lindstroem and Hallman allegedly agreed to leave VIC’s management in response to shareholder criticism. Many members of plaintiffs’ class invested additional funds in VIC to assist further in bottling operations and to finance a “buyout” of the departing directors. Management of VIC shifted to defendants Lewin and Rachel Nelson and to David Jordan, an individual allegedly investigated and approved by Lewin. Additional misrepresentations were supposedly made during this period, including the statement that the product would be marketed by 1985. The complaint asserts that Lewin was a VIC director and stockholder who also served as counsel. He allegedly had a hand in the creation of promotional materials that contained material misrepresentations and omissions. Lewin is also charged with playing a role in bringing Jordan into VIC. In addition to investigating and approving Jordan, it is alleged that Lewin drafted the so-called Jordan Agreement. Plaintiffs contend that in this document Jordan pledged to make VIC a public corporation in return for an additional $600,000 investment. DISCUSSION I. Subject Matter Jurisdiction Lewin moves under FRCP 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction. Lewin contends that the alleged activities which occurred in the United States were only preparatory to the commission of any fraud. Therefore, he argues, the federal securities laws do not apply to the challenged conduct. Lewin points to the fact that VIC’s principal assets — land and water processing plants— are located in Equador. In addition, Lewin notes that the VIC Board of Directors conducted meetings in Luxembourg, bank accounts were located in Europe, stock was sold in Europe, and the named plaintiffs are citizens of Sweden. Lewin argues that the fact that the Jordan Agreement was drafted in New York is of no moment because the Agreement was consummated in Luxembourg and was governed by Panamanian law. Plaintiffs, on the other hand, point to numerous allegations in their lengthy complaint that they contend bring this dispute within the jurisdiction of this Court. The bulk of VIC’s operations were conducted from New York and Florida. As a result, VIC had corporate records and bank accounts in New York. Important promotional material was allegedly prepared and printed in New York, and then mailed from New York. It is claimed that defendants Kahn and Hallman made phone calls from New York to communicate with sales agents and defendant Lindstroem who were overseas. Plaintiffs further point to the fact that stock certificates were issued in New York, and that New York media was used to solicit investors. Finally, plaintiffs cite the issuance of a United States trademark which was the subject of a misrepresentation. The application of the federal securities laws to transnational transactions has been frequently litigated in this circuit. Two tests have emerged as an analytical framework for disposing of this issue. In Schoenbaum v. Firstbrook, 405 F.2d 200, 206 (2d Cir.), rev’d with respect to the holding on the merits, 405 F.2d 215 (2d Cir.1968) (en banc), cert denied, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969), the Second Circuit adopted an “effects test” in the context of acts occurring outside of the United States, but which cause an effect within the United States. In IIT v. Vencap, Ltd., 519 F.2d 1001, 1017-18 (2d Cir.1975), the court applied a “conduct test” in the context of behavior in the United States causing foreign investment. Satisfaction of either standard will support the exercise of federal court subject matter jurisdiction. See Psimenos v. E.F. Hutton & Co., Inc., 722 F.2d 1041, 1045 (2d Cir. 1983). The central policy concern under either test is whether the transnational transaction at issue is one Congress would view as warranting the expenditure of American judicial resources, as compared to leaving the controversy for a foreign tribunal. Psimenos, 722 F.2d at 1044-45 (quoting Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 985 (2d Cir.), cert. denied, 423 U.S. 1018, 96 S.Ct. 453, 46 L.Ed.2d 389 (1975)). Because the conduct test is met by the allegations of the complaint, jurisdiction in the federal court is proper. The lynchpin of this analysis is whether the conduct in the United States directly caused the financial loss. Psimenos, 722 F.2d at 1046. As Judge Friendly observed, this determination hinges “not only on how much was done in the United States but also on how much ... was done abroad.” IIT v. Cornfeld, 619 F.2d 909, 920-21 (2d Cir.1980) (footnote omitted). The complaint’s allegations describe activities in the United States which were clearly integral to the success of the purported scheme. While each act standing alone might not support jurisdiction, taken together their cumulative weight is significant. The presence of corporate records, a United States trademark, the alleged use of New York as a base of operations, and the use of a New York lawyer supposedly to add legitimacy to the plan all implicate American interests. Moreover, this case is a class action, and it is possible that there will be American investors who were enticed by advertisements in a New York newspaper and over a New York radio station. Upholding jurisdiction in this case, furthers Congress’ interest that this nation not be used “as a base for manufacturing fraudulent security devices — ” Vencap, 519 F.2d at 1017. II. Failure to Comply with FRCP 23.1 Lewin moves to dismiss the derivative claims asserted by plaintiffs on behalf of VIC. Lewin contends that plaintiffs have failed to comply with FRCP 23.1 which provides in pertinent part, In a derivative action brought by one or more shareholders or members to enforce a right of a corporation ... the corporation ... having failed to enforce a right which may properly be asserted by it, the complaint shall ... allege with particularity the efforts, if any, made by plaintiff to obtain the action plaintiff desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for plaintiff’s failure to obtain the action or for not making the effort. In this case, plaintiffs assert in their derivative claim that the defendants breached their duties of care and loyalty to VIC, and that VIC’s capital was used for the personal benefit of certain defendants and not for legitimate business purposes. The plaintiffs argue that their failure to make a demand on the corporate board is excused because it would have been futile. The Court concurs based on the complaint’s allegations. The requirement of a demand on directors, codified in rule 23.1, is designed to prevent strike suits by minority shareholders and to minimize undue interference in corporate management. Lewis v. Anselmi, 564 F.Supp. 768, 772 (S.D.N.Y.1983). Implicit in this rule is the existence of an actual and ascertainable board of directors. It is well settled in the Second Circuit that a demand on the board need not be made where it would be futile. Lewis v. Graves, 701 F.2d 245, 248 (2d Cir.1983); Abramowitz v. Posner, 672 F.2d 1025, 1033 (2d Cir. 1982); Elfenbein v. Gulf & Western Industries, Inc., 590 F.2d 445, 450 (2d Cir.1978). A demand is presumed to be futile when the directors have a personal stake in the challenged transaction or have an adverse interest to that of the shareholders. See Lewis, 701 F.2d at 248. The complaint currently before the Court alleges that the present composition of the VIC board is in dispute. The original board included defendants Kahn, Lindstroem, Nelson and non-party Josephine Bucari-Lindstroem. At a 1984 shareholders meeting, another board was selected and consisted of defendants Jordan, Nelson, Lewin and non-parties Folke Nilsson, Ray Lindahl and Anthony Zash. Of these directors, Nelson has allegedly refused to play any role in VIC despite her knowledge that VIC owned no assets in Equador, Lew-in allegedly resigned from the board on February 12, 1985, Jordan refused to account for his expenditures and Zash could not be located. Adding to this morass is the fact that VIC is a Panamanian corporation, and as of July 23,1987, the Panamanian Registry of Corporations listed the directors as Kahn, Lindstroem, Hallman and Bucari-Lindstroem. Of these directors, Kahn, Lindstroem and Hallman are alleged to be self-interested in that they received excessive salaries, commissions and reimbursement of personal, nonbusiness expenses. In essence, plaintiffs set forth a corporate shell game in which they could not have located a majority of disinterested and objective directors. A demand would have been futile and perhaps impossible. III. Failure to Comply with FRCP 9(b) Federal Rule 9(b) requires that in averments of fraud, “the circumstances constituting fraud ... shall be stated with particularity.” The rule is an important aspect of federal practice for several reasons. It serves to provide defendants with sufficient information concerning their alleged fraudulent conduct so that they may frame an intelligent and responsive pleading. See Denny v. Barber, 576 F.2d 465, 469-70 (2d Cir.1978). The rule can help protect a defendant’s reputation by allowing for dismissal of conclusory and baseless allegations of fraud. See Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir. 1982); Ross v. A.H. Robins Co., Inc., 607 F.2d 545, 557 (2d Cir.1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980). Moreover, the rule limits strike suits in the securities context, see Ross, 607 F.2d at 557, and prevents the waste of judicial resources that can be expended in groundless cases, see Crystal v. Foy, 562 F.Supp. 422, 424 (S.D.N.Y.1983). With these concerns in mind, the rule as applied in this circuit requires some indication as to when, where and by whom the alleged misrepresentations were made. See Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir.1986); Hemming v. Alfin Fragrances, Inc., 86 Civ. 2563, slip op. at 5 (S.D.N.Y. February 9, 1987) (JFK) [available on WESTLAW, 1987 WL 6906]; Mauriber v. Shearson/American Express, Inc., 546 F.Supp. 391, 394 (S.D.N.Y.1982). The challenged complaint presents a mixed bag under rule 9(b); certain alleged misrepresentations and omissions are adequately pleaded, others are flawed but probably curable, and still others contain greater deficiencies. At the outset, however, the Court notes that the complaint is long and fairly detailed. It covers 81 pages and contains 268 paragraphs. For the most part, it adequately warns the defendants of the fraudulent conduct with which each is charged. Two sets of misrepresentations and omissions clearly pass muster under rule 9(b). Paragraphs 107 through 111 concern statements made by Lewin about the background and qualifications of Jordan. The results of Lewin’s examination are allegedly contained in telexes sent from New York to Sweden on approximately March 16, 1984. These allegations inform Lewin with sufficient detail as to what he represented (and failed to represent), how he made the representation, and when the statement was made. Paragraphs 112 through 118 similarly satisfy the rule. These contentions focus on the so-called Jordan Agreement, under which Lindstroem and Kahn were bought out as owners. The agreement further provided that Jordan would obtain an offer from an existing, but unidentified, American corporation to merge with VIC by purchasing its assets and assuming its liabilities. The agreement allegedly warranted that VIC had title to all of the property and assets which would be sold. The agreement was dated March 30, 1984 and was allegedly drafted by Lewin. These charges are not conclusory and do not violate rule 9(b). A second area of alleged misrepresentations and omissions concern the preparation, printing and mailing of stock certificates, and various promotional materials, including a prospectus and financial statements. Complaint ¶¶ 75(a)-(c), 87. Although these contentions generally apprise the defendants of the challenged conduct, it fails to provide some time frame. Plaintiffs, who will have an opportunity to re-plead, need not specify the date and hour of the actions, but should provide the defendants with some approximation of the dates in question. It is clearly not necessary for the plaintiffs to be more specific regarding each defendant’s role. The defendants are insiders, and these misrepresentations and omissions were made in certain documents. See Luce, 802 F.2d at 55. However, some of the documents themselves should be specified. For example, the “Vilcabamba-P Prospectus” is sufficiently specific, as is the mention of balance sheets from 1980 and 1983. Complaint 1111 87, 75(b). However, the listing of “various corporate records, prospectuses, sales kits, videos, films, pamphlets, magazine articles and advertisements and other promotional materials” is too vague. Complaint 11 75(a). Some approximation of the date, service and content of these materials is necessary. The defects in these allegations could probably be cured fairly easily. The Court recognizes that the resulting complaint will be even more lengthy, but that is what the law requires in this case. The final area of misrepresentations and omissions have more serious faults visa-vis rule 9(b). Paragraph 75(d) of the complaint charges the defendants with communicating through the telephone and other forms of wire and paragraph 75(e) refers to face-to-face meetings between the defendants and shareholders and potential investors in New York, Luxembourg, Sweden and Copenhagen. These allegations fail to provide any time frame, and do not in any way give the content of the communications. Nor do these allegations distinguish among the defendants. These two subparagraphs do not involve the preparation of corporate documents by insiders which can obviate the need for particularizing among the defendants. As a result, these two subparagraphs — 75(d) and 75(e) —must be repleaded to specify the speaker, the approximate time of communication and the content of the communication. See Luce, 802 F.2d at 54, 55; Hemming v. Alfin Fragrances, Inc., 86 Civ. 2563 slip op. at 5 (S.D.N.Y. February 9, 1987) (JFK); Equitable Life Assurance Society v. Alexander Grant & Co., 627 F.Supp. 1023, 1029 (S.D.N.Y.1985). The above discussion leads the Court to its conclusions concerning paragraphs 92 and 134 of the complaint. The subparagraphs within each paragraph should be linked to the particular written or oral misstatement or omission. To the extent a document prepared by a corporate insider is involved, the amended pleading need not specify which insider was responsible. Oral communications, however, should be more specifically alleged in the manner set forth above. The Court recognizes the potential difficulties plaintiffs could confront at this stage of the litigation, and further recognizes that rule 9(b) is to be read in conjunction with rule 8. For this reason, the parties are referred to footnote 3, supra, in this Opinion and Order. IV. Failure to State a Cause of Action Under RICO Lewin raises several grounds on which he contends plaintiffs’ allegations under RICO fail to state a claim. Lewin first asserts that plaintiffs have failed to allege a pattern of racketeering activity. The Court need not dwell on this argument because this complaint clearly sets forth a RICO cause of action. To plead a RICO pattern, a plaintiff must allege a degree of continuity plus relationship between, or among, the predicate acts. Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985) (quoting S. Rep. No. 617, 91st Cong., 2d Sess., at 158. (1969)). The Second Circuit interprets this factor to require, “the existence of an enterprise whose illicit activities or unlawful goals are continuing ones.” Creative Bath Products, Inc. v. Connecticut General Life Insurance Co., 837 F.2d 561, 564 (2d Cir.1988) (citing Albany Insurance Co. v. Esses, 831 F.2d 41 (2d Cir.1987); Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46 (2d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988)). This approach prevents plaintiffs from abusing RICO by using the statute in cases that do not present the threat of continuing criminal activity. In Creative Bath, Albany Insurance and Beck, the Second Circuit affirmed dismissals of RICO counts where the alleged scheme had a single, short-lived goal. This Court recently dismissed a RICO count for the same reason in Delta Holdings v. National Distillers and Chemical Corp., 85 Civ. 3439, slip op. at 22-23, (S.D.N.Y. April 8, 1988) (JFK) [Available on WESTLAW, 1988 WL 36330]. The instant complaint, however, is far different. The alleged goal of the defendants could scarcely be termed “short-lived.” The Vilcabamba scam, as alleged, did not have an “‘obvious terminating goal or date.’ ” See Albany Insurance, 831 F.2d at 44 (quoting United States v. Ianniello, 808 F.2d 184, 192 (2d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 3230, 97 L.Ed.2d 736 (1987)). The conduct set forth in the complaint presents a danger of ongoing illegal conduct, and a pattern of racketeering activity is alleged. For the most part, Lewin’s other arguments concerning the RICO count are also unpersuasive. He contends that plaintiffs have not alleged that they were injured by the challenged racketeering conduct. This is incorrect. The plaintiffs assert in paragraphs 171 and 182 of their complaint that violations of RICO caused them to suffer damages. One can infer from the complaint that the predicate acts set forth caused plaintiffs to invest their funds without obtaining anything in return. Lewin also argues that the complaint fails to allege that he engaged in any predicate acts. As will be set forth later, the complaint properly alleges, in part, that Lewin violated the federal securities laws. This conduct can serve as a predicate act or acts for RICO. The complaint also properly alleges mail fraud regarding the so-called Lewin telexes. The additional allegations which involve use of the mails and wire could also constitute predicate acts. At the moment, however, these allegations are deficient under the standards of FRCP 9(b) as discussed earlier. See supra, at 1308-09. Lastly, Lewin argues that the RICO claim is deficient because plaintiffs have failed to allege an enterprise that is distinct from a culpable person, as is required in this circuit. See Bennett v. United States Trust Co. of New York, 770 F.2d 308, 315 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986). This contention is correct only to the extent that the enterprise is alleged by the plaintiffs to include individual defendants. Complaint 11 173. However, this complaint clearly alleges that VIC and Vilcabamba International Corporation of Equador, Limited Company were two enterprises. This allegation falls within the parameters of the statute. Thus, the motion to dismiss the RICO claim is denied. . V. Failure to State a Claim Under the Federal Securities Laws A. Section 17(a) of the Securities Act of 1933 Defendant Lewin seeks dismissal of Count III of the complaint which alleges a violation of section 17(a) of the 1933 Securities Act. Lewin urges this Court to abandon controlling Second Circuit precedent, and hold that no implied private cause of action exists under the section.

936080-29987

WINTER, Circuit Judge. Patricia Ford appeals from her conviction by a jury before Judge Kahn on one count of accepting a bribe as an agent of an organization receiving federal funds. See 18 U.S.C. § 666(a)(1)(B). Ford was an officer of a state employees’ union that received federal funds. The charges against Ford alleged that she accepted free media services for her campaign for reelection to union office in return for which she steered overpriced union work to the media services provider. On appeal, Ford contends that the jury charge was materially incorrect and the evidence was legally insufficient. She also claims that various evidentiary errors, a flawed indictment, and prosecutorial misconduct before the grand jury are grounds for reversal. We agree that the jury charge was materially incorrect, and we therefore vacate the conviction. BACKGROUND We view the evidence in the light most favorable to the government. United States v. Alfisi, 308 F.3d 144, 146 (2d Cir.2002). a) The Union Election From August 1, 1994 through July 31, 1997, Ford was the elected Secretary/Treasurer of the Public Employees Federation (“PEF”), a union. She ran on a party slate called Members United for a Responsible Union (“MURU”). Under the governing rules, slates were elected or defeated as a whole. In the union hierarchy, Secretary/Treasurer was second in authority to the PEF President. Jim Sheedy was the MURU candidate for President. There were three other officer positions on the slate, all carrying the title Vice-President. The MURU slate were all incumbents, and,, in preparation for MURU’s 1997 reelection campaign, Ford contacted Peter Bynum, a political communications consultant recommended by PEF’s parent union. Bynum met with four of the five PEF officers on February 3, 1997, to discuss the MURU reelection campaign. Two PEF projects were also discussed: an overhaul of PEF’s existing communications materials and PEF’s upcoming “fight back” campaign against layoffs in the Office of Mental Health. Bynum was interested in revamping the communications materials and in doing the “fight back” campaign. He testified that he believed Ford “understood” this. - At the February 3 meeting or soon thereafter, Bynum learned that MURU spent $40,000 on its 1994 campaign, did not have much money for the 1997 campaign, and would have difficulty raising money. Nevertheless, Bynum was given a “green light” at the February 3 meeting with regard to the MURU reelection campaign and began work on it thereafter. Bynum’s calendar was introduced into evidence as a business record. It reflected his involvement during February in various efforts on behalf of the MURU slate, including work on a reelection brochure, a photo shoot, and a poll. Bynum eventually created three reelection brochures for MURU, which he sent to printers on March 12, April 27, and May 17. During February and March, Bynum was also working on the PEF “fight back” campaign and apparently seeking other PEF work. In Bynum’s calendar, the February 4 entry contains Ford’s home address, and the February 5 entry has a note saying “Letter to Pat Ford.” The February 5 entry also contains notes of a discussion about ideas for PEF’s “fight back” campaign. The February 7 entry appears to list anticipated receivables for 1997 and includes $70,000 from PEF. The February 19 entry says “proposal to PEF.” The February 24 entry contains a note to “Call Pat Ford re Proposals $34,000 + $60,000 = $94,000.” The March 4 entry states “Talk w/ Pat re my proposal” and included a note stating “PEF — Agreed with Pat to do $4,500/mo. retainer for 12 mos. effective 8/1/97.” August 1, 1997 was the date the officers elected in the June 1997 PEF election would take office. On March 13, 1997, Bynum sent two “fight back” proposals to PEF for $85,400 and $65,400, and on March 18, he sent a third for $51,968. PEF rejected the first two proposals and accepted the third, plus a $6,000 focus group marked up by 20 percent, for a total of $58,200. The work on this project was scheduled to be finished by May 15,1997. Bynum told Ford that he would do the creative work on the campaign for free if Ford would consider him for future work. Bynum maintained that he also told Ford that MURU would be responsible for the printer’s fees, mail house fees, and postage. Bynum expected to profit from the election work because “there would be compensation for the election work and future compensation doing work for the union if they liked my work.” Bynum incurred over $2,204 of graphic design expenses on the MURU brochures and $2,207.34 in postage expenses, but he never billed MURU for any reelection work prior to the election itself. However, Bynum did charge PEF for his work on the “fight back” campaign. On April 9, 1997, PEF received a $58,200 invoice- and paid it the next day. This was more than three weeks after the first re election brochure went to the printer, but six weeks before the “fight back” materials were sent to the printer on May 21. President Sheedy and a vice president signed the check after Sheedy confirmed with Ford that the amount was reasonable. Bynum testified that the “fight back” bill was “somewhere between the high end of a range and inflated” because “the fact that I was doing reelection work for which I was not being particularly well compensated led me to want to make sure that I was very well compensated for the union work I was doing.” Bynum believed the union would be “receptive” to high prices on the “fight back” campaign because of his reelection work. However, MURU lost the election in June. After learning that his actions “may have appeared to be wrong,” Bynum mailed an invoice backdated to September 9, 1997 and marked “past due” to Ford’s home address. The invoice billed MURU $3,857.50 for the design work on the reelection campaign and $2,207.34 for postage fees paid by Bynum. This bill was never paid. MURU paid its own printing expenses for the first two reelection brochures and paid $14,470.34 in mailing expenses. The printing costs for the third brochure were not paid in advance, and MURU eventually settled the printer’s claim at one-third its value. b) Indictment and Trial On February 22, 2002, Ford was indicted on five counts: bribery under 18 U.S.C. § 666(a)(1)(B) (Count 1); embezzlement (Counts 2 and 3); making a false entry in the financial records of a union (Count 4); and making a false statement (Count 5). Count 1 charged in pertinent part that The [PEF], during the one-year period beginning March 5, 1996 and ending March 4, 1997 received [federal] benefits of $10,000. Between on or about March 4, 1997, and on or about July 30, 1997 ... Ford, being an agent of the [PEF], an organization receiving in the one-year period beginning March 5, 1996, federal benefits in excess of $10,000.00 ... knowingly and corruptly agreed to accept and accepted something of value from Peter Bynum intending to be influenced in connection with the award of business or transactions with and of the [PEF], of a value of $5,000.00 or more. Ford moved to dismiss the indictment because of prosecutorial misconduct before the grand jury. In support, she submitted a 51-page affirmation by counsel and a memorandum of law. The government successfully moved to strike this document, on the grounds that it contained legal argument improper in an affidavit and exceeded the page limits on memoran-da of law. The court then denied Ford’s motion to dismiss the indictment. Ford sought mandamus in this court and filed and then voluntarily dismissed an interlocutory appeal. Before trial, Ford successfully moved to dismiss counts 2, 4, and 5. As noted, Bynum’s calendar was admitted as a business record. Bynum testified that the calendar entries were in his handwriting and that he made them “with knowledge of the acts or events appearing in the entries.” It was Bynum’s “regular practice” to make calendar entries “at or near the time of the acts or events appearing in the entries” and “in the course of a regularly conducted business activity.” Bynum testified, however, that he did not know “why or when” he wrote the March 4 entry about a $4,500 monthly retainer. Bynum also said that it was “possible” that he “put that in later to make myself look better.” Ford unsuccessfully objected to the calendar on the grounds that it consisted of inadmissible hearsay and was more prejudicial than probative. In instructing the jury as to Section 666(a)(1)(B), see supra note 1, the basis for Count 1, the court twice indicated that, with regard to both the word “corruptly” and the phrase “intending to be influenced,” it was sufficient for the government to prove that Ford “understood” or was “aware” that Bynum’s free media services were given to influence her conduct as an officer of the organization. Ford objected to this instruction. With regard to Section 666(c), which excludes from the prohibitions of Section 666(a)(1)(B) “bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business,” Ford asked the court to instruct the jury that “[t]he government must prove beyond a reasonable doubt that the transaction in issue in no way, to no degree, involved any acceptable business practice.” The court declined to give such an instruction. With regard to the time period during which allegedly criminal conduct occurred, the court stated that the jury had to find “that PEF within one year before or after the [corrupt] transaction received benefits of more than $10,000 under any federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other assistance.” Ford objected, arguing that the jury could consider conduct occurring only within the one year period specified in the indictment as the period during which federal funds were received. At the close of the government’s case, Ford made a Rule 29 motion for acquittal, which was denied. The jury found Ford guilty of Count 1, bribery under 18 U.S.C. § 666(a)(1)(B), and not guilty of Count 2, formerly Count 3, which charged embezzlement. After the verdict, she renewed her motion for acquittal and made a Rule 33 motion for a new trial. The court denied both. DISCUSSION Ford raises five claims on appeal: (i) the jury instructions were materially incorrect; (ii) the evidence was legally insufficient; (iii) various evidentiary errors; (iv) a fatal defect in Count 1 of the indictment; and (v) error in striking her counsel’s affidavit in support of dismissing the indictment and in failing to dismiss the indictment. a) The Jury Instmctions Regarding “Corruptly” and “Intending to be Influenced” We review jury charges de novo, United States v. Han, 230 F.3d 560, 565 (2d Cir.2000), reversing only where a charge either failed to inform the jury adequately of the law or misled the jury about the correct legal rule, United States v. Doyle, 130 F.3d 523, 535 (2d Cir.1997). We do not “review portions of [jury] instructions in isolation, but rather consider them in their entirety to determine whether, on the whole, they provided the jury with an intelligible and accurate portrayal of the applicable law.” . United States v. Weintraub, 273 F.3d 139, 151 (2d Cir. 2001). “To determine the meaning of a statute, we look first to the language of the statute itself. If those words are unambiguous, the process goes no further.” Bleecker Charles Co. v. 850 Bleecker St. Apt. Corp., 327 F.3d 197, 203 (2d Cir.2003) (internal quotation marks and citations omitted); Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993) (“The starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter.”) (internal quotation marks and citation omitted). Only where the language of a statute is ambiguous may we look to legislative history and purpose in interpreting it. Id. Nevertheless, an interpretation of a statute “must comport with the statute’s primary purpose and not lead to anomalous or unreasonable results.” Id. (internal quotation marks, citations, and alterations omitted). Section 666(a)(1)(B) prohibits in pertinent part an agent of a (federal-fund-receiving) organization from “corruptly solicit[ing] ... for the benefit of any person, or accepting] ... anything of value from any person, intending to be influenced or rewarded in connection with any business of such organization.” Section 666(a)(2) prohibits a person from “corruptly giv[ing] ... anything of value to any person, with intent to influence or reward an agent of [such] an organization ... in connection with any business ... of such organization.” Section 666 was patterned on the general federal bribery and gratuity statute, 18 U.S.C. § 201(b)(c), see United States v. Crozier, 987 F.2d 893, 898 (2d Cir.1993), although the language of the two provisions differs in significant respects. In United States v. Sum-Diamond Growers of California, 526 U.S. 398, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999), the Supreme Court, in construing the general federal bribery and gratuity statute, explained the distinction between bribery — “influencing” — and illegal gratuity — “rewarding”— as follows: The distinguishing feature of each crime is its intent element. Bribery requires intent “to influence” an official act or “to be influenced” in an official act, while illegal gratuity requires only that the gratuity be given or accepted “for or because of’ an official act. In other words, for bribery there must be a quid pro quo — a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken. Sum-Diamond, 526 U.S. at 404-05, 119 S.Ct. 1402 (emphasis in original). Count 1 of the indictment alleged that Ford accepted Bynum’s services in aid of the MURU campaign “intending to be influenced” in connection with the award of PEF business. Given the evidence, the allegations understandably omitted the statutory words “or rewarded,” and we need not explore what kinds of acts or intent are covered by the “rewarded” language but not by “influenced.” See United States v. Jennings, 160 F.3d 1006, 1015 n. 3 (4th Cir.1998); United States v. Coyne, 4 F.3d 100, 111 (2d Cir.1993); Crozier, 987 F.2d at 898-99. Appellant’s objections to the district court’s instructions assert that they misstated the requisite criminal intent in explaining both the meaning of “corruptly” and “intending to be influenced.” With regard to the meaning of “corruptly,” the district court gave the following instruction: Now, an act is done corruptly if it is done voluntarily and intentionally and with a bad purpose of accomplishing either an unlawful end or result or a lawful end or result by some unlawful method or means. The motive to act corruptly is ordinarily a hope or expectation of either financial gain or other benefit to oneself or some profit or benefit to another and often involves a breach of duty. A fundamental component of a corrupt act is a breach of some official duty owed to the Government or to the public at large. A person acts corruptly when the person acts with the understanding that something of value is to be offered or given to influence her in connection with her organizational duties. Appellant does not quarrel with the first three sentences of the district court’s instructions. See United States v. Aguilar, 515 U.S. 593, 616-17, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995) (Scalia, J., dissenting) (Corruptly describes “an act done with an intent to give some advantage inconsistent with official duty and the rights of others .... An act is done corruptly if it’s done voluntarily and intentionally to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.”) (internal quotations and citations omitted); United States v. Rooney, 37 F.3d 847, 852 (2d Cir.1994) (“[A] fundamental component of a ‘corrupt’ act is a breach of some official duty owed to the government or the public at large.”); United States v. McElroy, 910 F.2d 1016, 1021 (2d Cir.1990) (defining “corruptly” in similar terms). Appellant does, however, challenge as error the statement that “[a] person acts corruptly when the person acts with the understanding that something of value is to be offered or given to influence her in connection with her organizational duties.” These instructions were unnecessary because they dealt with a subject that should have been adequately covered in the portion of the charge dealing with the statutory requirement that the recipient “intend[] to be influenced.” Moreover, because they appear to have told the jury that the “corruptly” requirement was fully satisfied by the recipient’s knowledge of the donor’s intent and omitted any reference to the recipient’s intent in accepting the thing of value, they may have confused the jury as to the specific intent required by the Section 666 count in this case, ■ compounding the charging error as to that element. As the 'Supreme Court noted in its recent decision in Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129,161 L.Ed.2d 1008 (2005), restraint must be exercised in defining the breadth of the conduct prohibited by a federal criminal statute out of concerns regarding both the prerogatives of Congress and the need to give fair warning to those whose conduct is affected. 125 S.Ct. at 2134. Moreover, as the Court also noted, “restraint is particularly appropriate ... where the act underlying the conviction ... is by itself innocuous.” Id. (emphasis added). The act underlying the conviction here— accepting volunteer services and related goods in an election campaign — is, by itself, not only innocuous but also rather commonplace. Such services are frequently offered in the context of union and other elections. To be sure, the volunteer or donor may have arranged a quid-pro-quo, or be seeking special consideration as to future work if the campaign is successful. But the donor may be acting on ideological grounds or may desire only to display his or her talents in the hope of getting work later on the merits. The use of the word “corruptly” at the very least obviates the need for a recipient to speculate on the intent with which volunteer services are offered. A recipient who knows of the donor’s intent to arrange a quid-pro-quo or to seek special -consideration may, in certain circumstances, be said to be acting “corruptly.” But such knowledge is insufficient, by itself, to prove the Section 666 violation charged in this case. The government was also required to prove beyond a reasonable doubt that Ford accepted Bynum’s services “inténd-ing to be influenced” in her official duties. The jury instructions did not clearly communicate ' this specific intent element. They stated: The phrase “intending to be influenced” describes the intention conveyed by the recipient. If the recipient accepts anything of value with awareness that one of the purposes for which it is given is to influence her, rather than being done voluntarily or unrelated to her office as union treasurer, the recipient has acted with intent to be influenced. It is not a defense that a person does not intend to comply with the request of the giver, as long as the person accepting the thing of value is aware that the person for which the thing of value is offered — I’m sorry — that the reason for which the thing of value is offered is to influence her. Whether the corrupt transaction would or could ever be performed also is immaterial. It is also not a defense that something of value is accepted to influence an act which is actually lawful, desirable, or even beneficial to the union, or that the officer did not have the power, authority or ability to perform the act for which the thing of value is accepted. As long as the action sought is not so far outside the purview of the officer’s duties or possible power, or possible authority, such that no reasonable person would have supposed the official could have done anything about the subject, liability attaches. The Government need not prove an explicit promise to perform a particular act made at the time the thing of value is agreed to or accepted. Rather, it is sufficient if the defendant understood that she was expected as a result of the payment to exercise influence on behalf of the payól-as the opportunity arose. To. find that the defendant had the requisite intent to commit this act, this crime, you need to determine her actual intent while she was dealing with Peter Bynum. The instructions in question failed to clarify whether they were offering a single synthesized definition or alternative definitions of “intending to be influenced.” Either way, they did not convey the plain language of the statute. Broken into its essential pertinent parts, the statute imposes criminal liability on: “Whoever ... solicits ... or accepts ... anything of value ... intending to be influenced.” 18 U.S.C. § 666(a)(1)(B). “Intending to be influenced” clearly modifies “whoever,” i.e. the recipient of something of value. In short, the recipient must have accepted the thing of value while “intending to be influenced.” Or, as the Supreme Court put it plainly in Sun-Diamcmd Growers, there must be a quid-pro-quo. If the instructions were intended to offer alternative definitions of the requisite state of mind, they were clearly in error. The first sentence of the instructions stated that “intending to be influenced” describes “the intention conveyed by the recipient.” However, a jury may not, as the instructions suggest, cease further consideration upon determining that a recipient conveyed such an intent. What is conveyed or said by the recipient is of course powerful evidence of the recipient’s state of mind, but what the recipient said is not the issue to be resolved. Rather, it is the actual state of mind of the recipient that must be proven. . The second sentence of the instructions similarly misstates the state of mind requirement. The recipient’s “awareness” that the donor gave something of value for the purpose of influencing the recipient might well constitute strong circumstantial evidence that the recipient acted with the requisite culpable state of mind in accepting the item, but a jury should be clearly instructed that it is the recipient’s intent to make good on the bargain, not simply her awareness of the donor’s intent that is essential to establishing guilt under Section 666. See Note 5, supra. The final sentence, by telling the jury only that it had to find appellant’s actual intent, suffered from the fatal defect of lacking an infinitive — namely, an actual intent “to be influenced” in awarding PEF work to the donor in the future. Viewed as a synthesized definition of the requisite state of mind, the instructions were similarly deficient. They simply failed to spell out the specific state of mind requirement of a bribery charge under Section 666 — the defendant’s intent to be influenced in awarding PEF business in return for a thing of value. Courts do not read elements, and especially intent requirements, out of statutes lightly. See Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (refusing to read intent requirement out of a conversion statute even absent explicit language because intent was generally considered an element of conversion); see also United States v. Aguilar, 515 U.S. 593, 600, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995) (refusing to read intent requirement out of obstruction statute because “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed”) (internal quotation marks and citation omitted). The deficiencies in the instructions therefore require that the conviction be vacated. b) Other Issues Raised On Appeal Although our determination that the jury instructions were erroneous requires that the conviction be vacated, we address the issue of whether the evidence was legally sufficient in order to determine whether a retrial is permissible. Because we conclude that the evidence was sufficient, we address other claims raised by Ford in the interests of judicial economy. See Blyden v. Mancusi, 186 F.3d 252, 269 (2d Cir.1999) (“Although our disposition of this matter lessens the importance to this appeal of appellant’s [second] claim ... we nevertheless address it in light of the fact that retrials seem inevitable.”); United States v. Salerno, 937 F.2d 797, 811 (2d Cir.1991) (“Since we reverse the convictions of all defendants on other grounds, it is not necessary to reach this issue in order to decide this appeal. Nevertheless, since a retrial is likely, we' offer some guidance on this subject.”)’ rev’d on other grounds, 505 U.S. 317,112 S.Ct. 2503, 120 L.Ed.2d 255 (1992). 1. Sufficiency of the Evidence We believe that the evidence was sufficient to convict Ford under correct jury instructions. There was ample evidence, if credited, for a jury to find that Ford actually intended to be influenced in connection with PEF work after accepting free services from Bynum on her reelection campaign. The jury could have found that Bynum offered Ford free reelection services in exchange for PEF’s agreement to pay (i) his inflated $58,200 “fight back” proposal and (ii) a post-election retainer at $4,500 per month. The jury could also have found, based on PEF’s acceptance of Bynum’s proposal and Bynum’s calendar notation that Ford agreed to the retainer, that Ford accepted Bynum’s offer. In doing so, such conduct would clearly have breached her duty to the union and would therefore have constituted “corruptly” accepting of something of value from Bynum while “intending to be influenced in connection with” PEF business. 2. Evidentiary Rulings We review evidentiary rulings for abuse of discretion. Coyne, 4 F.3d at 114 (“[T]he trial judge is in the best position to weigh competing interests in deciding whether or not to admit certain evidence.”) (internal quotation marks and citation omitted). Admission of Bynum’s calendar as a business record was not an abuse of discretion. Bynum testified that his regu lar business practice was to keep a calendar in which he documented events of which he had personal knowledge at or near the time they occurred. The fact that Bynum claimed not to remember when or why he made the March 4, 1997 entry is irrelevant. If a custodian of a business record “need not have personal knowledge of the actual creation of the document,” United States v. Williams, 205 F.3d 23, 34 (2d Cir.2000) (internal quotation marks and citation omitted), for it to be admissible, the absence of a present recollection is no barrier to admission. See Fed.R.Evid. 803(6). ■ In any event, the March 4 entry was admissible under the hearsay exception for statements against penal interest. Fed.R.Evid. 804(b)(3) (permitting admission of statement that tended to subject the declarant to criminal liability). The apparent memorializing of a retainer agreement between Bynum and Ford could have been used against Bynum in a Section 666(a)(2) prosecution as well. Ford also challenges the district court’s exclusion of an Assistant United States Attorney’s alleged extra-judicial statement to a witness that “Bynum is a dirty dog and he’s got no credibility.” This statement was offered as an admission by an agent of a party under Fed.R.Evid. 801(d)(2)(D). Exclusion was not an abuse of discretion. Admission of an opinion of a lawyer as to credibility would be problematic under Rule 403, see United States v. Scop, 846 F.2d 135, 139-40 (2d Cir.1988) and, at least in the present circumstances, is not admissible under Rule 801(d)(2)(D). Although a government attorney’s statements may be admitted against the government as a litigant, Salerno, 937 F.2d at 812, such statements must meet three criteria: First, “the district court must be satisfied that the prior argument involves an assertion of fact inconsistent with similar assertions in .a subsequent trial.” Second, the court must determine “that the statements of counsel were such as to be the equivalent of testimonial statements” made by the client. Last, the district court must determine by a preponderance of the evidence that the inference that the proponent of the statements wishes to draw “is a fair one and that an innocent explanation for the inconsistency does not exist.” Id. at 811 (quoting United States v. McKeon, 738 F.2d 26, 33 (2d Cir.1984)). “[Ajdvocacy as to the credibility of witnesses” does not meet at least the first two criteria. McKeon, 738 F.2d at 33. 3. Temporal Period of Offense Ford objects to the court’s instruction that, with regard to the temporal element of the crime, the jury had to find only that PEF received $10,000 in federal money “within one year before or after the [alleged bribe].” Ford argues that this instruction constituted a constructive amendment of the indictment because it allowed the jury to consider transactions occurring outside the one-year period specified in Count 1 during which $10,000 in federal benefits were received by PEF — March 5, 1996 to March 4, 1997. The evidence showed that PEF received more than that amount on both July 24, 1996 and December 30, 1996 and that Ford’s acceptance of services from Bynum occurred from March-June Í997. Ford’s argument appears to be that, under the indictment, the PEF might have received the requisite federal benefits only on March 5, 1996, and any conduct after March 4, 1997 could not be criminal because the criminal conduct had to be committed within a year of the receipt of benefits.

2037791-10711

HASTINGS, Chief Judge. This is an appeal from a conviction of Bobby Taylor, alias Robert Harris, following a bench trial. Taylor was indicted in eight counts, four counts charging him with uttering and publishing forged United States Treasury checks, in violation of 18 U.S.C.A. § 495, a forgery statute; and four counts charging possession of the checks, in violation of 18 U.S. C.A. § 1708, a statute proscribing possession of stolen mail. Taylor was found guilty on all counts and sentenced to four and one-half years imprisonment on each of the eight counts, the sentences to run concurrently. On August 30, 1965, at 2:30 p. m., Taylor was arrested and then held by Chicago police pursuant to a stop order based upon a federal warrant for his arrest. At 5:00 p. m., United States Secret Service agents arrived at the police headquarters. One of the agents informed Taylor that he was under arrest, that he need not make a statement, and that he had a right to an attorney. After being shown photostatic copies of checks, Taylor made an oral statement, which was later reduced to writing by one of the agents and signed by Taylor. The length of this interview with Taylor was estimated to be between thirty and forty-five minutes. After being taken to the Chicago Police Second District Headquarters for photographing and fingerprinting, Taylor was taken to the Secret Service office. There he was interrogated. At approximately 7:30 p. m., he read and signed a typed statement, dictated by an agent and based on the earlier interview, confessing the forgeries. The following day, Taylor was taken before the United States Commissioner. On appeal, it is contended that Taylor’s confession was obtained in violation of Rule 5(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., because it was given during a period of extended delay between his arrest on a federal warrant and his appearance before the United States Commissioner. It is also urged that the trial court committed reversible error in admitting Taylor’s confession into evidence without conducting an independent hearing to determine its voluntariness. With respect to the latter contention, Taylor, who was represented by court-appointed counsel, did not, at any time prior to or during his trial, request a hearing on the question of the voluntariness of his confession. Nor was any objection or motion made opposing the admission of the confession. Similarly, the contention that the confession was obtained in violation of Rule 5(a) was not presented to the trial court. Generally, errors not affecting fundamental rights are subject to “considerations of fairness to the court and to the parties and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact.” United States v. Atkinson, 297 U.S. 157, 159, 56 S.Ct. 391, 80 L.Ed. 555 (1936). In criminal cases, however, appellate courts may notice plain errors or defects affecting substantial rights, even when not brought to the attention of the trial court. Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A.; United States v. Jones, 7 Cir., 204 F.2d 745 (1953), cert, den., 346 U.S. 854, 74 S.Ct. 67, 98 L.Ed. 368 (1953). The contentions on appeal have required us to examine the errors alleged to discover whether Taylor’s rights were in fact affected by them. We conclude that they were not and that the trial court did not err. The essential question raised by the admission into evidence of Taylor’s confession is- whether the trial court is permitted to presume the voluntariness, and therefore the admissibility of a confession from the fact that defense counsel does not object to its introduction. If the trial was to the jury, it would be incumbent upon the trial judge to make his own determination that the confession was voluntary before submission to the jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); United States v. Inman, 4 Cir., 352 F.2d 954 (1965). Unlike the instant case, Jcwkson and Inman, which Taylor has cited in support of his contention, involved jury trials and objections to the introduction of the confessions into evidence. The question in these cases was not whether a determination should have been made as to the voluntariness of the confessions, but whether the confessions were properly determined to- be voluntary. Proper determination required the trial judge to conduct a voluntariness hearing and to find the confession voluntary before the confession was submitted to the jury for its consideration. Here we have no question regarding the proper determination of voluntariness, but rather the question whether voluntariness should have been an issue and whether it is a trial court’s responsibility to raise it when defense counsel fails to do so. We emphasize that Taylor has not asserted his confession was inadmissible, but only that its admissibility was never questioned by the trial judge. To require a hearing when no objection of any kind has been made to the admission into evidence of a confession would place a greater responsibility upon the trial judge than upon defendant’s counsel to protect the very rights it is the lawyer’s function to insure. Such cynicism, with respect either to retained or appointed counsel, has no present warrant. In the instant case, there was no showing as to the inadequacy of trial counsel. The record does not reveal it. It is rather to be presumed, given the widespread legal suspicion of confessions, that if no objection was made, there was none to be made. Certain alerting circumstances, such as a defendant’s apparent abnormal mental or physical condition, obvious ignorance, or lack of awareness — all of which may reveal a dereliction in defense counsel’s failure to object to the introduction of a confession — may, under due process standards, require a trial judge to investigate the necessity of conducting a hearing notwithstanding the absence of an objection. Such circumstances have not been shown here. In short, the question of the admissibility of the confession was settled by the failure to raise it, and nothing has been shown which would cause us, on appeal, to pass upon the admissibility of the confession. Cf. United States v. Bolden, 7 Cir., 355 F.2d 453 (1965), cert, den., 384 U.S. 1012, 86 S.Ct. 1919, 16 L.Ed.2d 1018 (1966); United States v. Childress, 7 Cir., 347 F.2d 448 (1965), cert, den., 384 U.S. 1012, 86 S.Ct. 1936, 16 L.Ed.2d 1030 (1966); United States v. Del Llano, 2 Cir., 354 F.2d 844 (1965). With respect to the contention that Rule 5(a) was violated, we do not find this an appropriate case for the application of the Mallory rule, that is, exclusion of a confession by a federal court because of an unnecessary delay in presenting the defendant to a United States Commissioner. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). Taylor was arrested and held from 2:30 p. m. to 5:00 p. m. by Chicago police pursuant to federal warrant. This did not amount to federal custody for purposes of the Mallory rule, for Chicago police have no responsibility or authority to arraign on federal charges. Furthermore, the delay in placing Taylor under federal custody has not been shown to have been due to federal responsibility, to have been unnecessary, intended to avoid taking him before a magistrate, or designed to elicit a statement from him. At most, the local custody must be taken into account in determining the reasonableness of the delay that occurred after federal agents took custody. Muldrow v. United States, 9 Cir., 281 F.2d 903, 905 (1960). When Taylor was finally taken into federal custody at 5:00 p. m., appropriate cautionary statements were made. At that time, photostatic copies of checks were shown to Taylor and he made a statement which was reduced to writing at approximately 7:00 p. m. During the time Taylor was in federal custody that evening, the United States Commissioner, whose office hours in the Northern District of Illinois are from 10:00 a. m. to 4:30 p. m., was not available. Taylor was taken before the Commissioner on the next day. Under Rule 5(a), delay after a confession is not as significant as delay before it. Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943, 945 (1958), cert, den., 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959). Thus, we are essentially concerned with the thirty to forty-five minute delay occurring after 5:00 p. m. The problem of delay is to be solved by determining whether the. delay which occurred was in fact unnecessary when the sum total of the circumstances shown is considered. See Muschette v. United States, 116 U.S.App.D.C. 239, 322 F.2d 989, 991 (1963), vacated and remanded on other grounds, 378 U.S. 569, 84 S.Ct. 1927, 12 L.Ed.2d 1039 (1964). We agree with Taylor that the availability of a Commissioner is not the sole criterion by which to determine whether a delay violates Rule 5(a). However, the unavailability of a Commissioner until the next morning may explain the necessity for delay, and failure to make presentment for that reason does not violate Rule 5(a). Cf. United States v. Vita, 2 Cir., 294 F.2d 524, 529 (1961), cert, den., 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788 (1962); United States v. Ladson, 2 Cir., 294 F.2d 535, 537 (1961), cert, den., 369 U.S. 824, 82 S.Ct. 840, 7 L. Ed.2d 789 (1962). See Holt v. United States, 8 Cir., 280 F.2d 273 (1960), cert, den., 365 U.S. 838, 81 S.Ct. 750, 5 L.Ed. 2d 747 (1961). In support of his contentions Taylor cites Alston v. United States, 121 U.S. App.D.C. 66, 348 F.2d 72 (1965); United States v. Middleton, 2 Cir., 344 F.2d 78 (1965); Jones v. United States, 119 U.S.App.D.C. 284, 342 F.2d 863 (1964); Greenwell v. United States, 119 U.S.App.D.C. 43, 336 F.2d 962 (1964), cert, den., 380 U.S. 923, 85 S.Ct. 921, 13 L.Ed.2d 807 (1965) and Ricks v. United States, 118 U.S.App.D.C. 216, 334 F.2d 964 (1964). In most of these cases, a magistrate was available at the time the confession took place. Furthermore, in Greenwell, the presentment was delayed for the purpose of producing evidence. In Middleton, the purpose of the detention was to keep the accused in custody for an indefinite period until he confessed. Ricks involved, unlike the instant case, rather extensive questioning, line-ups and confrontations. In the instant case, the delay in presentment was necessary insofar as a Commissioner was not available at the time of Taylor’s detention. This delay was not converted into an unlawful delay by the fact that a statement was readily given by Taylor, notwithstanding a warning as to his rights, when he was faced with incriminating evidence.

1838692-25836

WALKER, Circuit Judge. By this suit the appellants sought to have enjoined the collection of additional taxes for the years 1923 and 1924 on timberlands of appellants in Pearl River county, Mss., which were based on a judgment of the circuit court of that county increasing the assessment of the timber on that land from $6 per thous- and feet to $7.50 per thousand feet, the assessment of that timber at $6 per thousand feet having been approved by the board of supervisors of that county, and that action of that board having been approved by the state tax commission. Such additional taxes and 10 per cent, damages thereon also sought to be collected amounted in the aggregate to $108,-746.23. A ground on which injunctive relief was sought is indicated by averments of the amended bill to the effect that if the collection of the additional taxes consequent upon the alleged assessment increase is permitted, appellants will be obliged to pay taxes at a much higher and greater value, and a much greater per cent, of the value of their property than the value and percentage of value of property of other taxpayers in Pearl River county; and by the following allegations of that pleading: “Plaintiffs would further show that by the adjudication of the State Tax Commission and the adjudication by the Board of Supervisors of Pearl Elver County, plaintiffs’ property involved in this cause was assessed at as high a value as other property in Pearl River County, Mississippi, and at as high value as other property in all other counties of the State of Mississippi, and at an equal proportionate value with all property in Pearl River County and other classes of property, in the other counties of the State of Mississippi, to-wit, at a valuation of sixty per cent, of the true value thereof, so that there was a complete equalization of the value of the property and plaintiffs’ property was assessed equal in value to the other property in the State so as to bear its just proportion of the burden of taxation. “Plaintiffs further show that any raise or increase thereafter in the value of plaintiffs’ property on the assessment roll of Pearl River County for the years 1923 and 1924 would be a discrimination against plaintiffs, and would require plaintiffs’ property to bear a greater portion of the burden of taxation than the property of other taxpayers in Pearl River County and of taxpayers in other counties of the State, and would be a denial to plaintiffs of the equal protection of the laws guaranteed to plaintiffs under the Constitution of the State of Mississippi and the Fourteenth Amendment of the Constitution of the United States.” The amended bill contained the following: “The plaintiffs rendered their property as aforesaid to the assessor for taxation purposes truly valued in proportion to the value placed on all other property in Pearl River and in proportion to all other property in all the other counties of the State of Mississippi. That by deliberate and intentional action on the part of the various tax assessors in the State of Mississippi, the Board of Supervisors of the various counties in the State of Mississippi, and the State Tax Commission of the State of Mississippi, all property in the State of Mississippi is consistently valued for tax purposes at sixty per cent. (60%) of its true or market value and such sixty per eent. (60%) basis of valuation was intentionally adopted by the various tax officials throughout the State of Mississippi and applied to all assessments on property, real and personal, made applicable on the biennial assessment applying to the years 1923 and 1924 and had been so consistently applied for many years prior thereto'. That in conformity with the said practice and agreement in rendering their property as aforesaid to the assessor for taxation purposes, the plaintiffs valued the same at sixty per cent. (60%) of its market value.” That pleading also alleged that by the assessment of property of appellants which was approved by the board of supervisors of Pearl River county and by the state tax commission that property was assessed at 60- per cent, of its true market value, and that after the assessment rolls had been completed and approved by the board of supervisors and the state tax commission and had been delivered to the tax collector, appellants, prior to the bringing of this suit, paid to said tax collector all taxes that were due and owing for the years 1923 and 1924, being the taxes based on such assessment before it was increased. After the filing of an answer to the amended bill, the court appointed a master to take the evidence and to report his findings of law and fact as to questions stated in that order, including the following: “As to whether or not there is or was a knowingly wilful and intentional discrimination against the plaintiffs in the valuation fixed on the plaintiffs’ property by the additional value placed thereon on the land and timber by the appeal of the Attorney General by virtue of the judgment of the Circuit Court of Pearl River County, Mississippi, and the judgment of the Supreme Court of Mississippi in affirming said judgment, in the ease of Knox vs. Edward Hines Yellow Pine Trustees, Case No. 1601 on the General Docket of Pearl River County Circuit Court: (a) comparing the valuation of the plaintiff’s property with the property of the same character and with other property in Pearl River County and other. Counties of the State of Mississippi. * * * “As to all the law and facts relating to the trial in the Circuit Court on the appeal of the Attorney General from the plaintiffs’ assessment and what law and facts and questions were presented, or might or should have been presented on the trial thereof and on appeal of the said cause to the Supreme Court of the State of Mississippi; and whieh issues, facts, questions and matters presented by the pleadings are res adjudieata.” The master took the evidence and made a report, stating findings which are mentioned below. The court overruled exceptions filed to that report, and rendered a final decree dismissing the amended bill. The master in his report gave a negative answer to the first above set out question, finding that the evidence did not prove the discrimination therein described. The re port shows how the master reached that conclusion. It shows that he found that, the evidence did not show that property of taxpayers, either owners of yellow pine or other classes of property, was systematically, intentionally, and generally assessed uniformly at 60 per cent, of its true value, either in Pearl River county or in other counties in Mississippi; and'that its value fixed for purposes of taxation varied in the widest degree from far above that percentage to far below it; and that the property of the appellants, after the assessment of it was increased by the above-mentioned judgment, was assessed for taxation at substantially less than 60 per cent, of its true value. It appears from the report that the conclusion that the charge of discrimination was not sustained was a deduction from the premises that the evidence showed that the property of the appellants, after the assessment of it was increased by the above-mentioned judgment, was assessed for taxation at a valuation substantially less than 60 per cent, of -its true value, and that allegations of the amended bill amounted to an admission or concession that there was no discrimination against appellants unless their property was assessed for taxation at mo^e than 60 per cent, of its true valhe. The report indicates that in reaching the conclusion that, the charge of - discrimination was not. sustained the master was not influenced by the admitted fact that by the judgment sought to be enjoined the assessment of the timber on lands of the appellants was increased from $6 per thousand feet to $7.50 per thousand feet, or by uneontroverted testimony of apparently disinterested witnesses to the following effect: In assessing timberlands for taxation the practice prevailing generally throughout the state of Mississippi was that the assessing officials placed a per acre value on the land without the timber, and a value per thousand feet on the estimated number of feet per acre, the aggregate of those two sums being the assessed value per acre of the land including the timber on it. The timber in Pearl River county was assessed by the county officials as high as, if not higher than, similar timber in any other county. The assessment of appellants’ land, including the timber on it, in Pearl River county which was appealed from was among the highest assessments of timberland in that county. A result of the 25 per cent, increase of the ..amount of the assessment of the timber'on that land was that the land of the appellants was assessed at a valuation.substantially higher than that at which similar timber land of other taxpayers in Pearl River county and in other counties generally and' systematically was assessed. It fairly. appears from the master’s report, considered in the light of the evidence which was before him, that he concluded or assumed that the charge of discrimination made by the amended bill could not be sustained if the evidence established that the land of the appellants, after the assessment of it for taxation was increa'sed by the judgment sought to be enjoined, was assessed at less than 60 per cent, of its real value, whether such increase did or did not result in the land of. appellants being intentionally assessed at a higher valuation than that at which other similar land generally and systematically was assessed. A result of such conclusion or assumption was that the allegations to the effect that Mississippi tax assessing officials deliberately and intentionally valued real and personal property for tax purposes at 60 per cent, of its true value were treated as being descriptive of a material or essential element of the discrimination charged. In other words, the variance found to exist between those allegations and the evidence was treated as material and fatal. The substance of the wrong charged consisted, not in assessing land of the appellants at more than 60 per cent, of its true value, but in doing what in effect amounted to .an intentional violation of the essential principle of practical uniformity by assessing that land relatively higher than other similar lands and other property in Pearl-River county and other counties legally subject to be taxed at the same rate. A substantial increase of the assessment of appellants’ land over what similar land of other taxpayers generally and systematically was assessed at was a discrimination against appellants, whether the basis of valuation applied in assessing other similar land was 60 per cent, of its true value or a greater or smaller percentage of that value. Greene v. Louisville & Interurban R. R. Co., 244 U. S. 499, 516, 37 S. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88; Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350, 38 S. Ct. 495, 62 L. Ed. 1154; Chicago G. W. Ry. v. Kendall, 266 U. S. 94, 45 S. Ct. 55, 69 L. Ed. 183. The circumstance that allegations of the amended bill, to the effect that to permit the enforcement of the alleged increase of the assessment of appellants’ land consequent upon increasing the assessment of timber on that land from $6 per thousand feet to $7.50 per thousand feet would result in requiring appellants’ land to bear a greater burden of taxation than similar land of other taxpay ers, were accompanied by allegations to the effect that prior to such increase appellants’ land and other similar property were assessed at 60 per cent, of their true value, did not indicíate an intention of the appellants to admit or concede that they were not discriminated against by the alleged increase of assessment if after such increase their land was assessed for taxation at substantially less than 60 per cent, of its true value. The general tenor of the amended hill is inconsistent with the existence of an intention on the part of the appellants to admit or concede that, if the complained of increase in the assessment of their land did not result in it being assessed for as much as 60 per cent, of its true value, they were not discriminated against hv the alleged increase of the assessment of their timber from $6 per thous- and feet to $7.50 per thousand feet, while other similar timber generally and systematically was assessed at $6 per thousand feet. That pleading, excluding its allegations as to property being assessed at 60 per cent, of its true value, shows that the enforcement of the alleged increase of the assessment of appellants’ land would result in that land being assessed relatively higher than similar property of other taxpayers subject to he taxed at the same rate, and in that land being required to hear a disproportionately greater burden of taxation. A cause of action alleged could be sustained by proving every fact which appellants were required to prove to obtain judgment in their favor. Chesapeake & Ohio R. Co. v. Dixon, 179 U. S. 131, 139, 21 S. Ct. 67, 45 L. Ed. 121. They were not required to prove allegations of facts not essential to the existence of a cause of action alleged. A discrimination against appellants was shown by allegations of the amended bill, excluding its allegations as to property being assessed for taxation at 60 per cent, of its true value. It follows that an asserted cause of action could he sustained without adducing evidence to support the last-mentioned allegations. The variance resulting from the failure of the evidence to sustain those allegations was not a material one. It was enough if the substance of an asserted cause of action was sustained by evidence. Nash v. Towne, 5 Wall. 689, 18 L. Ed. 527. Washington & Georgetown R. Co. v. Hickey, 166 U. S. 521, 532, 17 S. Ct. 661, 41 L. Ed. 1101. There was evidence tending to prove the substance of an alleged discrimination against the appellants. The record indicates that in passing on the question of discrimination due consideration was not given to that evidence. In determining the legal effect of a discrimination alleged and proved, pertinent provisions of the Constitution and laws of Mississippi are to he considered. The Constitution of that state (section 112) provides that “taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. * * * Property shall be assessed for taxes under general laws, and by uniform rules, according to its true value.” Under statutory provisions real and personal property within the several counties, with exceptions not now material, is assessed by county assessors. A county board of supervisors in each county is charged with the duty of reviewing and equalizing those assessments. Hemingway’s Annotated Mississippi Code 1927, § 8223. A state board of tax commissioners is charged with the duty of examining the assessment rolls of the several counties and of equalizing the tax valuations of the various classes of property as made in the respective counties. Id. § 9349. Appeals are allowed from assessments of taxes, the following being a provision on that subject: “The county attorney, the district, or the attorney general, if the state, county or municipality be aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town, or village as to the assessment of taxes, may, within twenty days after the adjournment of the meeting at which such decision is made, or within twenty days after the adjournment of the meeting at which the assessment rolls .are corrected in accordance with the instructions of the state tax commission, or within twenty days after the adjournment of the meeting of the board of supervisors at which the approval of the roll by the state tax commission is entered, appeal to the circuit court of the county in like manner as in the ease of any person aggrieved as hereinbefore provided, except no bond shall be required, and such appeal may be otherwise governed by the provisions of this section.” Id. § 61. At the time the Attorney General appealed from the assessment of appellants’ land and at the time that assessment was increased as above stated, the Attorney General was entitled to receive for his own use .15 per cent, of the amount of additional taxes collected as a result of such increase. Id. § 2010. Prior to the taking of the appeal by the Attorney General, the Supreme Court of Mississippi had decided that under the above-quoted constitutional provision no discrimination in rates between different species of property was permitted, and that all prop erty must be taxed at the same rate on its true value (Chicago, R. I. & P. R. Co. v. Robertson, 122 Miss. 417, 422, 84 So. 449); but that where there was an appeal from an assessment if the taxpayer’s property was assessed at not more than its true value, that assessment was not subject to attack on the ground that it resulted in the subject of it being assessed relatively higher than similar property of other taxpayers (Magnolia Bank v. Board of Supervisors of Pike County, 111 Miss. 857, 72 So. 697, 3 A. L. R. 1365); and that the only question presented to the court in such a proceeding, except such as grow out of any failure to comply with statutory requirements in raising the assessment, is: What is the true value of the property in question? Board of Supervisors v. National Bank, 119 Miss. 165, 80 So. 530. Prior to that time the court below had referred to the ruling in the case of Magnolia Bank v. Board of Supervisors of Pike County, supra, as supporting the conclusion that under the Mississippi law as construed by its highest court there was doubt as to there being any legal redress for such discrimination as is charged'in the instant case. Gammill Lumber Co. v. Board of Supervisors (D. C.) 274 F. 630, 635. The just-cited decisions indicated that at the time of the trial which resulted in the increase of the assessment of appellants’ land, an attempt by the. appellants in such trial to prevent an increase of assessment which would not result in their land being assessed at more than what the evidence adduced showed was its true value would have been a futile gesture, though a result of that increase was that appellants’ land was assessed at a valuation substantially higher than similar land of other taxpayers generally and systematically was assessed at. In the circumstances disclosed by the evidence referred to by the master, a manifest discrimination against the appellants could be effected in that trial at the instance of a public official who by a large financial reward was tempted to bring about the accomplishment of that result. It cannot fairly be denied that the legal situation existing at the time of that trial invited and facilitated a wrongful discrimination against the appellants in the assessment of their land for taxation. In answering the second above set out question submitted to him, the master, after stating the issues raised by the pleadings which were before the state court in the trial on the above-mentioned appeal of the Attorney General, stated-: “As above stated, your -Special Master upon the above authorities holds that even though said eight issues, etc., hereinabove set forth, are not res adjudieata, on the alleged ground that the Circuit Court in such tax appeal sat not as a court but as an administrative body, nevertheless, not having exhausted the remedies open to them before such administrative tribunal, Plaintiffs cannot in this Court be heard to assert the invalidity of such order or judgment of the Circuit Court of Pearl River County, Mississippi.” , The master’s report shows that in reaching his last-stated conclusion he was influenced by the conclusion that the Supreme Court of Mississippi, without expressly overruling its • above-mentioned ■ decision in the case of Magnolia Bank v. Board of Supervisors of Pike County, supra, had so changed its ruling in that case by its decisions in later eases (Knox v. Southern Paper Co., 143 Miss. 870, 108 So. 288; Redmond v. City of Jackson, 143 Miss. 114,108 So. 444; and Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560, 108 So. 907, 911), as to enable a taxpayer to obtain in a trial on an appeal from an assessment full, complete, and efficient relief against attempted unlawful discrimination by pleading and proving an intentional overvaluation of his property • as compared with that of other taxpayers. Each of those three cases was decided by the Supreme. Court of Mississippi after the trial which resulted in the judgment increasing the assessment of appellants’ land, and after the institution of this suit. The last-cited ease was a bill filed by the appellants in the chancery court of Pearl River county after the filing of the appeal by the Attorney General and before the trial on that appeal, which bill prayed that the defendants therein, including the Attorney General, be perpetually enjoined from prosecuting that appeal. The chancery court sustained a demurrer to the bill and dismissed the suit. The Supreme Court of Mississippi affirmed that decree, except the part of it allowing a fee to attorneys for the defendants in the suit for services rendered in securing the dissolution of a temporary injunction which had been issued. The opinion in that ease contains the following: “The constitutional and statutory provisions on the subject require that property shall be assessed at its true value, but, if it be conceded that the Attorney General is seeking to have the property of appellants assessed at 100 per cent, of its value, while other property of the county is assessed at only 60 per cent, of its value, and that so to do would violate the equality and uniformity provisions of the state and United States Constitutions, still the presumption must be indulged that the circuit court, upon the trial of the appeal, will proceed in accordance with law and administer the law of the land as manifested in these constitutional mandates.” But that opinion shows that the court concluded that there was an “all-sufficient reason why this injunction to stay a proceeding to revise an assessment for taxes cannot be maintained,” in that by the statute which authorized the appeal by the Attorney General the circuit court was designated as a special statutory tribunal to hear and determine such appeals; that there is no inherent power in a court of equity to revise or equalize ássessments for taxes; and that the chancery court, being without power or authority to draw to itself and determine the questions of revision, equalization, or correction of the assessment, was without power to enjoin the prosecution of the tax appeal in the forum specially designated by statute to hear and determine those questions. The case of First National Bank of Biloxi v. Board of Supervisors of Harrison County, 157 Miss. 197, 127 So. 686, was decided by the Supreme Court of Mississippi after it had decided the three cases above cited and referred to by the master in support of his conclusion. The opinion in that case shows that the court, when the question now under consideration was presented for decision, instead of overruling or modifying its ruling in the case of Magnolia Bank v. Board of Supervisors of Pike County, supra, expressly declined to overrule that case, and approved and followed the ruling therein, with the result that it decided that in a trial on an appeal from an assessment of property for taxation a taxpayer whose property was assessed at its true or 100 per cent, value could not challenge that assessment on the ground that at the time it was made all other property was deliberately and intentionally assessed at 65 per cent, of its value. At the time of the trial on the appeal of the Attorney General, the legal situation with reference to the subject of resisting a proposed increase of assessment on the ground that by such increase the taxpayer unlawfully would be discriminated against was that prior to that time the highest court of the state had decided that such increase, if it did not result in the subject of it being assessed at more than its true value, could not be complained of on the ground that similar property at that time, intentionally and systematically was assessed at a substantially lower valuation, and that the ruling to that effect then remained unreversed and unmodified. This being so, it seems unreasonable to base on what was said in opinions subsequently rendered a conclusion that at the time of such trial a plain, complete, and adequate legal remedy was available to the taxpayer. That such a conclusion was unwarranted is demonstrated by a still later decision of the same court expressly reaffirming and following the ruling on the subject made by it prior to that trial. Certainly a suggested remedy which, before and after the time there was occasion to resort to it if it existed, was adjudged to be nonexistent by the highest court of the jurisdie-' tion in which an attempt to invoke it might be made, cannot properly be said to be either plain, adequate, or complete. We conclude that the master erred in his last above set out finding to the effect that in the trial which resulted in the judgment increasing the assessment of the land off the appellants they could have defeated the unlawful discrimination charged in their amended bill by pleading and proving that an effect of such increase was an intentional overvaluation of that land as compared with the valuation for taxation of similar property of other taxpayers. We are not advised of the existence of any other legal means of preventing such discrimination or of obtaining adequate redress therefor.

11851894-17515

BIRCH, Circuit Judge: Anthony Wayne Webb appeals the 262-month sentence he received following his conviction for attempted robbery of mail matter, 18 U.S.C. § 2114(a). In vacating Webb’s sentence and remanding this case for resentencing, we decide, in an issue of first impression in this circuit, that a district court has the authority under the Sentencing Guidelines to exercise its discretion to grant a request for downward departure with re spect to a defendant who has been classified as a career offender. I. BACKGROUND For the purpose of resolving the issues raised in the appeal, the facts underlying Webb’s conviction are undisputed: On January 16, 1996, Webb entered a United States Post Office and presented a note to a postal clerk. According to Webb’s post-arrest statement, the note indicated that this was a robbery and that the clerk should give him all the money reserved for money orders. See Exh. 3. Testimony at trial reveals that the postal worker screamed and ran away after reading the note. Webb subsequently ran out of the post office and was apprehended and arrested by two postal inspectors within minutes of the attempted robbery. At the time this offense was committed, Webb was fifty-one years old and had spent much of his life committed to mental institutions or in prison. It is also undisputed that Webb had robbed the same post office in 1985; Webb pled guilty and was sentenced to ninety-six months in custody for this offense. After his release on parole in 1991, Webb returned to the same post office and presented to two postal clerks a note that was, in essence, identical to the one used in the instant case. Following the 1991 incident, Webb was convicted of forcibly intimidating postal service employees, in violation of 18 U.S.C. § 111, and sentenced to thirty months’ imprisonment. The Presentence Investigation Report (PSR) prepared in connection with this case recommended that Webb be sentenced as a career offender pursuant to U.S.S.G. § 4B1.1. The PSR specifically referenced the 1985 and 1991 post office incidents, discussed above, as crimes of violence that justified Webb’s qualification as a career offender. Both prior to and during the sentencing proceeding, Webb objected to the enhancement of his offense level based on his categorization as a career offender and argued that his prior conviction for intimidating a postal worker did not constitute a crime of violence under the Sentencing Guidelines. The government responded that the statutory offense for which Webb had been convicted in 1991 involved force as an element; alternately, the government posited that the conduct underlying the federal charge, attempted robbery, necessarily implicated the use or attempted use of force. The district court adopted the government’s position and overruled Webb’s objection with respect to the career offender enhancement. Webb then moved for a downward departure in his sentence and asked that the court reduce his sentence to approximately the same lével as it would have been without the career offender enhancement. In support of his request, Webb primarily relied on his arguments with respect to the enhancement of his sentence as a career offender and noted that he consistently had sought through criminal conduct only to be reinstitutionalized. The government, in response, averred that a downward departure — particularly to the degree sought by the defendant — was not warranted in this case. Consistent with an implicit denial of Webb’s motion for downward departure, the court then imposed sentence. Immediately thereafter, Webb’s counsel stated: “Judge, we do object to the sentence imposed for the reasons stated earlier, as well as the court’s failure to engage in a downward departure because it agreed it couldn’t.” R5-18. In response to this assertion, the court stated: “Let the record so reflect. Thank you.” Id. After a short recess, the court reconvened because the sentencing judge had neglected to inform Webb of his right to appeal. At that time, the following exchange took place: The Court: Let the record further reflect that the court did not grant the request Mr. Kish sought, that I depart from the guidelines and impose a lesser sentence, because that would be contrary to my initial ruling earlier, and I overrule you on the guideline issue. However, I do feel that the guidelines in this situation are very harsh, and I wish we didn’t have the guideline. Maybe some provision later on may provide the court with a situation wherein the court, if there are compelling reasons for doing so, can depart, based on the court’s own assessment of what the sentence ought to be. But in this case, I did not find that, and for that reason 1 will let it stand. ■ • Mr. Webb: May I find out what that sentence was again? The Court: 262 months. Mr. Webb: 362 months? The Court: 262. Mr. Vineyard: I want to make sure the record is clear the court recognizes it has the authority to downwardly depart but chose not to do so. ■ The Court: That’s what I said. R5-19-20. On appeal, Webb argues that the court erred in finding, implicitly, that his 1991 conviction for intimidation of a postal worker, 18 U.S.C. § 111, constituted a “crime of violence” that served as one of the two predicate offenses required to render Webb eligible for status as a career offender. Webb additionally contends that the district court erroneously believed that it lacked the authority to grant a downward departure in his sentence. He further urges that the guidelines do, in fact, authorize the court to downward depart and that such a departure was warranted here. We address seriatim each of Webb’s challenges to his sentence. II. DISCUSSION A. Career Offender Enhancement We review a district court’s interpretation of the Sentencing Guidelines de novo. United States v. Pinion, 4 F.3d 941, 943 (11th Cir.1993). As noted, § 4B1.1 establishes that a defendant qualifies as a career offender if, inter alia, he has at least two prior felony convictions that constitute crimes of violence. The guidelines define a crime of violence as any offense under federal or state law punishable by imprisonment for a term exceeding one year that- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2. The commentary further explicates the definitional parameters of a crime of violence as specifically including murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (ie., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Under this section, the conduct of which the defendant was convicted is the focus of the inquiry. U.S.S.G. § 4B1.2, comment, (n.2). The statutory provision under which Webb was convicted in 1991,18 U.S.C. § 111 [hereinafter § 111], provides, in relevant part, that whoever (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties ... shall ... be fined under this title or imprisoned not more than three years, or both. The final, documented judgment recording Webb’s 1991 conviction under this statutory section describes the nature of the offense as “Intimidation of a Postal Service Employee.” Exh. 5. Webb submits that the court erred in categorizing him as a career offender based in part on his conviction for intimidation of a postal worker because that offense does not implicate as an element the use, threatened use, or attempted use of physical force; in other words, Webb contends that the particular offense conduct for which he was convicted is not a crime of violence as that term is defined in the guidelines. In support of this contention, Webb suggests that the plain statutory language referenced in his judgment neither explicitly states nor contains by reference to the statutory elements of the offense the use (actual, attempted, or threatened) of physical force. Furthermore, because the pertinent statutory language is unambiguous, we are precluded from looking at the conduct underlying the conviction. Webb’s argument is premised on two underlying principles: First, Webb suggests that there is a legally cognizable distinction between the terms “force” and “physical force” that differentiates those types of crimes that may involve the possibility of “force” or “violence” — as commonly understood and discussed in our case law — from those that are specifically denominated “crimes of violence” in the Sentencing Guidelines. Second, Webb assumes that the language of § 111 is unambiguous on its face and therefore precludes our examination of the actual conduct — ie., attempted robbery-underlying his conviction to determine whether it in fact constitutes a crime of violence. The government concedes that a prior conviction for intimidation under § 111 has never been used as a predicate offense to classify a defendant as a career offender under the Sentencing Guidelines. Nonetheless, the government submits that § 111 explicitly contains the word “force,” which modifies each of the enumerated offenses for which a defendant could be convicted under the statute, and therefore qualifies as a crime of violence pursuant to the Sentencing Guidelines. In the alternative, the government contends that the specific, actual offense eon-duct underlying Webb’s indictment and con-vietion was a crime of violence. Webb’s attempt to distinguish between the terms “force,” as used in § 111, and “physical force,” as used in the guidelines, is not without some intrinsic appeal. Unfortunately, Webb points to neither decisional law nor commentary within the guidelines that isolates or differentiates these two terms, nor does he refer to any source that specifically defines the elements of or illuminates the meaning of “intimidation” as that term is used in § 111. Indeed, we can find no case that expands upon the various types of nonphysical force that could be used to intimidate a government official; similarly, no court has specifically distinguished those aspects of the statute that necessarily implicate the use or threatened use of physical violence, such as assault,.from those that may not involve such patently physical conduct. The vast majority of cases involving a conviction pursuant to this statutory provision concern criminal conduct that is manifestly physically violent in nature. See, e.g., United, States v. Morris, 131 F.3d 1136 (5th Cir.1997) (assault with deadly weapon); United States v. Garcia-Camacho, 122 F.3d 1265 (9th Cir.1997) (assault); United States v. DePace, 120 F.3d 233 (11th Cir.1997) (same); United States v. Segien, 114 F.3d 1014 (10th Cir.1997) (assault of corrections officer), cert. denied, — U.S. -, 118 S.Ct. 1310, 140 L.Ed.2d 474 (1998); United States v. Valdez-Torres, 108 F.3d 385 (D.C.Cir.1997) (assault with vehicle); United States v. Matthews, 106 F.3d 1092 (2nd Cir.1997) (assault with dangerous weapon). Webb correctly notes that the government has rejected his proposed distinction between “force” and “physical force” but has not explicitly argued that § 111, particularly with regard to the offense at issue here, is ambiguous on its face. Notwithstanding this fact, we believe that the question of whether physical force necessarily is an element of intimidation under this statutory provision is ambiguous. The statute itself does not contain any definitional, explanatory text that might shed some light on the intended scope of the words “forcible” or “intimidates.” The dictionary defines the word “intimidate” as, inter alia, “to make timid; fill with fear ...; to force into or deter from some action by inducing fear.” The Random House Dictionary of the English Language, (2d ed.1987). We readily can imagine circumstances in which an individual is able to induce fear by either physical means (i.e., the threat of actual physical violence) or non-physical means (for example, the threat of economic harm). Even assuming that we adopt Webb’s argument that a legal distinction exists between different types of force, we nonetheless cannot say with certainty whether “forcible intimidation” under § 111 contains, as an element, the use, attempted use, or threatened use of physical force. Having found the statute to be ambiguous with regard to this issue, we must look to the conduct underlying Webb’s conviction. See United States v. Spell, 44 F.3d 936, 939 (11th Cir.1995) (“[A] district court only may inquire into the conduct surrounding a conviction if ambiguities in the judgment make the crime of violence determination impossible from the face of the judgment itself.”) It is undisputed that the conduct that gave rise to Webb’s 1991 conviction for forcible intimidation was, as in the instant case, attempted robbery. As previously noted, the Sentencing Guidelines expressly denominate robbery as a crime of violence under § 4B1.2. We are bound by the guidelines’ specific reference to this offense as constituting a crime of violence, see Stinson v. United States, 508 U.S. 36, 42-43, 113 S.Ct. 1913, 1917-18, 123 L.Ed.2d 598 (1993), and therefore affirm the district court’s decision to sentence Webb as a career offender. B. Downward Departure Generally, a defendant may not appeal a district court’s refusal to depart downward. United States v. Baker, 19 F.3d 605, 614-15 (11th Cir.1994). A defendant may appeal the court’s failure to downward depart, however, on the ground that the court erroneously believed it lacked the authority to depart. Id. at 615. Webb posits that, in this instance, the district court denied his request for a downward departure on the ground that it believed it lacked the authority under the guidelines to grant such a request. Webb further suggests that the relevant guideline provision does, in effect, authorize a sentencing court to depart downward based on a finding that a defendant’s career-offender classification over-represents the seriousness of his prior criminal history or his likelihood of recidivism. The government argues that a close reading of the sentencing transcript reveals that the court, having understood its authority to depart from the guidelines, considered the factors pertinent to this particular case and determined that a downward departure was not justified. The government concedes that, given specific factual findings that might warrant a departure, the guidelines theoretically do authorize a court to grant a defendant’s request to downward depart. First, our independent review of the sentencing transcript reveals that the sentencing judge, at the very least, was bewildered and ambivalent as to whether the guidelines authorized a downward departure in this instance. We are cognizant of the government’s assertion that, during the sentencing proceeding, the government never seriously contested the authority of the court to depart downward but argued that the extent of the departure sought by Webb was excessive. The record also makes evident the attempt of both the government and defense counsel to “clean up the record” and extract from the court a statement clearly indicating its position with respect to whether a departure was authorized in this instance. Nonetheless, the court never provided a clear indication one way or the other; indeed, the court appears to have agreed with both the proposition that it lacked the authority to depart, see R5-18, as well as the proposition that it had the discretion to depart but chose not to do so in this case, see R5-20. Our ability to evaluate the court’s reasoning for denying Webb’s request is further hindered by the court’s speculation that “[m]aybe some provision later on may provide the court with a situation wherein the court, if there are compelling reasons for doing so, can depart, based on the court’s own assessment of what the sentence ought to be,” R5-19, juxtaposed with its observation that “in this ease, I did not find that, and for that reason I will let [the sentence] stand.” Id. As noted, the record is far from clear as to the rationale underlying the court’s denial of Webb’s request for downward departure; on balance, however, the record more strongly suggests that the court believed that it was not authorized to depart downward in this case. We therefore resolve the ambiguity reflected in the record with respect to this issue in favor of the defendant and conclude that the court’s decision was based on its belief that it lacked the discretion to grant Webb’s request for a departure. See United States v. Hadaway, 998 F.2d 917, 919 (11th Cir.1993) (“Although the record is somewhat ambiguous, it appears that the district court declined to depart downward because it lacked the authority to do so rather than because it determined that the facts did not warrant a departure.”)

857853-11994

VANCE, Circuit Judge. Howard Carroll and Robert Wilson were convicted on charges of making fraudulent and misleading statements in the offer and sale of securities, and with having aided and abetted in using the United States mails to further the fraud. 15 U.S.C. §§ 77q(a), 77x; 18 U.S.C. §§ 2, 1341. In addition, those appellants, along with co-defendant Jerry McFarland, were found guilty under a count alleging a conspiracy to commit enumerated offenses in violation of 18 U.S.C. § 371. The convictions involve acts committed during the public sale of stock in Coal Creek Mining Company, which was controlled by appellants. Prospective investors were told that the proceeds would be used to develop mining properties for the production of coal. Instead, the $212,741 raised by the stock offering was used to purchase real estate, to run a trucking firm owned by McFarland, and to pay Carroll, Wilson and McFarland for various expenses incurred. None of the funds were ever used for the stated purpose. On appeal Carroll and Wilson present a multitude of contentions, including claims that there was insufficient evidence to sustain the convictions, improper voir dire of the jury, as well as error in the jury instructions. Carroll further argues that the trial judge abused her discretion in denying his motion for continuance. The sole issue presented by McFarland is whether plain error resulted from the trial court’s sua sponte amendment of Count 1, the conspiracy count. We affirm as to appellants Carroll and Wilson. The conviction of McFarland is reversed. Jury Instructions as to Count 1 Count 1 is the only count under which McFarland was convicted. It alleges a conspiracy to violate federal securities and postal laws. The trial court incorrectly instructed the jury that the offenses which defendants were charged with conspiring to commit included not only the two stated in the indictment but also violation of 18 U.S.C. § 2314 prohibiting the interstate transportation of fraudulently obtain ed money. Count 1 does not charge McFarland with conspiracy to violate that particular section. The fifth amendment guarantees “[n]o person shall be held to answer for [an] . infamous crime, unless on [an] indictment of a Grand Jury . . . .” The central purpose of this requirement is to limit [the accused’s] jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960). Accord, United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). By describing the crime charged, the indictment also insures that the accused will be adequately informed of the charges against him and that he will be protected against double jeopardy. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), United States v. Fischetti, 450 F.2d 34 (5th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1972); United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31 (1976). These essential functions are so fundamental that the procedure used to obtain an indictment must be strictly followed in order to insure a fair trial for the accused. The requirement is not met where, as here, an instruction has the effect of amending the indictment by charging an extraneous crime in a conspiracy count. In Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), the Supreme Court proscribed amending an indictment by any means other than through the grand jury itself: [I]f it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists. Id. at 13, 7 S.Ct. at 788. See Stirone v. United States, supra. Although McFarland had an absolute right to have the jury instructed solely on charges contained in the indictment, he did not seasonably object to the improper instruction as is required by Fed.R.Crim.P. 30. That rule, however, is modified by Rule 52(b), which provides that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” The government concedes that the challenged instruction was erroneous, but urges that in the face of what it contends to be overwhelming evidence of guilt and in the absence of a timely objection there was no fundamental unfairness which would warrant our setting the conviction aside. We conclude, however, that the trial court’s error in instructing the jury that they may find McFarland guilty of conspiracy to violate section 2314 requires our intervention. Although errors that are constitutional in nature may not be plain error per se, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Bates, 512 F.2d 56 (5th Cir. 1975), “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless . . . .” 386 U.S. at 23, 87 S.Ct. at 827—28. The right of a defendant to be tried under an indictment presented solely by a grand jury is one such right. Ex Parte Bain excluded the notion of a non-prejudicial amendment to the indictment, and since that time, the concept of harmless error has not. been applied to amendments. Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061 (1969). Because the trial court committed plain error in instructing the jury with respect to the only charge of which he was found guilty, we reverse as to McFarland. Denial of Continuance Appellant Carroll complains of prejudice resulting from the trial court’s denial of his motions for continuance. Disposition of such motions is vested in the sound discretion of the trial court. Its ruling will not be disturbed on appeal, except upon a clear showing of abuse. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976); United States v. Moriarty, 497 F.2d 486 (5th Cir. 1974). Whether such abuse will be found is to be decided on a “case by case basis in light of the circumstances presented.” 531 F.2d at 1285. The reviewing court will especially examine the reasons for continuance given at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); McKinney v. Wainwright, 488 F.2d 28 (5th Cir.), cert. denied, 416 U.S. 973, 94 S.Ct. 1998, 40 L.Ed.2d 562 (1974). Two grounds were asserted by Carroll to support his motion for continuance: insufficient time for full and adequate preparation of the defense, and a conflict in the commitments of Carroll’s attorney, who was scheduled to try a case in a Colorado state court on an unrelated matter the same day appellant’s trial was to have begun in Dallas. This court has established several factors to be considered in evaluating claims of inadequate preparation time. Some of them include the amount of time available for preparation, the likelihood of prejudice resulting from denial, the complexity of the case, and the adequacy of the defense actually provided at trial. United States v. Uptain, supra, at 1286. Applying these criteria to the present case, we find that the denial of continuance did not constitute an abuse of discretion. From the time that his firm was first contacted by Carroll, counsel had almost six weeks to get ready for trial. There were also numerous recesses granted during trial which extended actual preparation time. Carroll shows no area which he would have investigated further or in which his counsel would have been better prepared had he been allowed additional time for preparation. Carroll’s attorney revealed a conflicting commitment for the first time six days before trial, and was allowed to withdraw. Withdrawal, however, was predicated upon Carroll’s having counsel at trial, and permitted with the understanding that the withdrawal would not delay the proceedings. See generally, United States v. Dilworth, 524 F.2d 470 (5th Cir. 1975); United States v. Sexton, 473 F.2d 512 (5th Cir. 1973). The attorney was ordered to appear on behalf of Carroll when it became apparent that such defendant otherwise would be unrepresented at trial. In Uptain we held, “[W]here there is a substantial basis for a continuance, the attorney should present the claim as early as possible.” 531 F.2d at 1290-1291. When the conflict in question was first mentioned in defendant’s second motion for continuance, the government witnesses had been subpoenaed, and at least one of the co-defendants, McFarland, was ready to proceed. Despite the denial of the motions for continuance, Carroll was ably and effectively represented at trial. The record discloses that his attorney was well acquainted with the facts of the case, and thoroughly cross-examined the witnesses. He clearly met the standard for effective assistance of counsel mandated by the sixth amendment. See United States v. Simpson, 460 F.2d 1321 (5th Cir. 1972). We are unable to conclude that the ruling of the district court was not a “reasonable resolution of the various factors confronting [it].” 531 F.2d at 1291. We therefore must uphold the lower court’s action even though we may view its ruling as a harsh one. Sufficiency of Evidence Wilson and Carroll contend that the evidence is insufficient to sustain convictions on the conspiracy, securities fraud, and mail fraud counts of the indictment. The test for sufficiency is whether “reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence.” United States v. Warner, 441 F.2d 821, 825 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). On appeal the determination is to be made in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). It was not unreasonable for a jury to find appellants guilty as charged. Carroll and Wilson were responsible for forming the mining corporation and arranging for the public sale of its stock. Together they selected Harry Niles to run the corporation as a “front man,” while they retained actual control of the company. Appellants contacted the underwriter for the public offering of the corporate stock and caused a circular to be made to promote the sale. This prospectus, which was distributed through the United States mails, contained several misstatements of fact. In particular, the circular represented that the Securities and Exchange Commission and the corporation’s shareholders would be notified of the facts and circumstances surrounding any proposed use of uncommitted corporate funds prior to actual disposition. Such notification was never given, even though uncommitted funds were used to purchase real estate in Texas. At least one investor testified that he purchased shares in the mining company in reliance on that representation. Additionally, appellants arranged for their names not to appear in the circular as promoters of the corporation, and represented that Mr. Niles was the majority stock owner when in fact Carroll and Wilson were the true owners. These acts support a guilty verdict not only on the substantive counts, but also on the conspiracy charge. Although appellants complain there was no hard evidence of the conspiracy agreement, direct proof is not required. United States v. Netterville, 553 F.2d 903 (5th Cir. 1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 719, 54 L.Ed.2d 752 (1978). Complicity may be inferred from the circumstances. United States v. Warner, supra. The circumstantial evidence produced at trial overwhelmingly supports a finding that appellants conspired to commit securities and mail fraud. Voir Dire

4222840-9313

MADDEN, Judge. The plaintiff is the trustee of a trust created by Clare G. Johnson in 1922. She was 42 years old at that time and intended to remarry. She transferred some $600,000 worth of property to the trustee in trust to pay the income to herself during her life. The trust instrument further provided: “ * * * and upon my death to assign, transfer and set over the said shares of stock and any increase thereof, and any and all other securities held by my Trustee under the terms and provisions of this trust, to my three children, Gertrude Clare Davis, David T. Davis, and Ferdinand H. Davis, and the survivor, or survivors of them, in equal shares, but if any of my said three children has predeceased me and left issue him or her surviving, to assign, transfer and set over the share such child would have received if living to its issue in equal parts; * * * ” The trust instrument expressly declared itself to be irrevocable. The three children named in the language just quoted were 11, 20, and 19 years old in 1922, and had no children. When their mother died in 1941, they were all still living, and two of them had living children. Upon the death of Mrs. Johnson the Commissioner of Internal Revenue included the property, which she had conveyed in trust, in her estate, and taxed the estate accordingly. Except for this inclusion, her estate was not large enough to be taxable. The plaintiff, as trustee and transferee of the trust property, paid the tax, amounting, with interest, to $148,696.-03, and filed a timely claim for its refund, which claim was rejected. The ground upon which the Commissioner subjected the trust property to the estate tax was that the transfer in trust was a transfer intended to take effect in possession at or after the death of the transferor, because (1) she had reserved to herself the income of the trust property for her life and (2) under the terms of the instrument the corpus of the property would have reverted to her if her three children named in the trust instrument had all predeceased her without issue. The Government concedes that the first basis of the Commissioner’s assessment was not valid. This trust was irrevocably created in 1922. The taxing statute was not amended until 1931 to expressly make the reservation of a life estate by a grant- or the basis for including the property in the grantor’s estate when he died. The Supreme Court of the United States held in Hassett v. Welch, 303 U.S. 303, 58 S.Ct. 559, 82 L.Ed. 858, that this amendment was not intended by Congress to apply to transfers made before its adoption in 1931. Our question, then, is whether the failure of the trust instrument to divest the grantor of all her interest in the prop erty except the reserved life estate, thus leaving in her the chance that she might again become the complete owner of the property if her three children should predecease her without issue, which chance would continue until her death, made the conveyance in trust in the circumstances here present “a transfer * * * intended to take effect in possession or enjoyment at or after [her] death” within the meaning of Section 811(c) of the Internal Revenue Code. 26 U.S.C.A.Int.Rev. Code, § 811(c). We use the neutral word “chance” to describe Mrs. Johnson’s remaining interest in the property, since the word reversion, the technically accurate name for it, would tend to attribute to her interest more substance and value than it actually had, and the words “possibility of reverter”, the currently popular name for all uncertain interests involved in such tax problems, is not a true description of it. To get the property, Mrs. Johnson’s children or other issue had to fulfill a .condition precedent, i. e., they had to survive Mrs. Johnson. If they did not, the property was hers, because it was hers to begin with and she had not given it to them except upon that condition. Her death then, before theirs, was necessary to put their gift beyond the chance of failure. We must determine whether the language of the Supreme Court in Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 399, 75 L.Ed. 996, is applicable. The court said, “It is perfectly plain that the death of the grantor was the indispensable and intended event which brought the larger estate into being for the grantee and effected its transmission from the dead to the living, thus satisfying the terms of the taxing act and justifying the tax imposed.” In the Klein case the grantor conveyed to his wife for life, and provided that if the wife should not survive him, the land should “in that event * * * remain vested in said grantor.” The conveyance further said: “upon condition and in the' event that said grantee shall survive the said grantor, then and in that case only the said grantee shall by virtue of this conveyance take * * * the said lands in fee simple.” A comparison of the instant case with the Klein case shows the following things. In the instant case the grantor reserved the use of the property to herself for her life; in the Klein case the grantee, who was also given the remainder upon condition that she survive the grantor, was given the property for her life. In the instant case no express provision was made in the instrument as to where the property should go if the grantees did not survive the grantor; in the Klein case the instrument expressly provided that the land should “remain vested in said grantor.” In the instant case the grantor was 42 years old and the grantees were 11, 20, and 19 years old at the time of the conveyance; in the Klein case the grantor and grantee were husband and wife, but whether they were approximately the same age, or differed as much as the mother and her children in the instant case, is not disclosed by the court’s decision. In the instant case there were three named grantees, with a provision that issue of any who died before the grantor leaving issue should be substituted for the deceased' named grantee; in the Klein case there was only one named grantee, and no provision for the substitution of her issue. In the case of Helvering v. Hallock, 309 U.S. 106, at page 112, 60 S.Ct. 444, at page 448, 84 L.Ed. 604, 125 A.L.R. 1368, the court said of the Klein decision: “The inescapable rationale of this decision, rendered 'by a unanimous Court, was that the statute taxes not merely those interests which are deemed to pass at death according to refined technicalities of the law of property. It also taxes inter vivos transfers that are too much akin to testamentary dispositions not to be subjected to the same excise. By bringing into the gross estate at his death that which the settlor gave contingently upon it, this Court fastened on the vital factor.” In applying the test thus stated in the Hallock case to the instant case, we observe that the dispositions of Mrs. Johnson’s transfer in trust bear a striking, resemblance to the provisions of the law of inheritance as it would have operated without any transfer in trust, if she had in fact retained the property and if she had not remarried. The statutes of descent would have given her property to such, if any, of her children or more remote issue as survived her. If none survived her, and she had made no other disposition of the property, it would have gone to her collateral heirs. Her transfer in trust would have had the same effect. Again, her transfer in trust effected the dispositions which a normal parent, in her cir cumstances, would have written into an irrevocable will, if the law permitted such .a will and permitted one to segregate a portion of his property to fulfill the gifts made by his will. The will, though irrevocable, would have been, as was the trust disposition, ambulatory in the respect that it provided for survivorship among the children or their issue down to the parent’s death. If none survived, all the gifts would have lapsed, as they would, in effect, under the trust disposition. And the testator would have had the enjoyment of the property during her life, and the right, if her issue predeceased her, to dispose of it inter vivos or by will or by letting it descend to collateral heirs, which she had under the trust disposition. We think that Mrs. Johnson’s arrangements for the devolution of her property were “too much akin to testamentary dispositions [or intestate succession] not to be subjected' to the same excise.” Helvering v. Hallock, supra. The plaintiff urges that the absence of an express provision in the trust instrument that the property should revert to the grantor upon the failure of the children to survive her should have some weight. We think not. If it did, the estate tax could be avoided in practically all cases by making dispositions identical in substance with taxable dispositions but using a different form of words easily .available to any conveyancing lawyer. 'The Klein case and the Hallock case, supra, both teach that taxability vel non must not be made to depend on forms of words. .As to the statutory words, “intended to take effect,” etc., the grantor certainly intended what she expressly said, that her surviving children or issue were to get •the property, and she certainly meant thereby that her death should be the event after which their rights in the property might be ascertained.

167340-21785

OPINION OF THE COURT CARTER, Judge: A military judge convicted appellant, pursuant to his pleas, of one specification of wrongful use of marijuana (on five or six occasions during a three-month period), in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a [hereinafter UCMJ]. On 28 March 1999, a panel of officer and enlisted members sitting as a general court-martial acquitted appellant of one specification of distribution of marijuana and sentenced him to a bad-conduct discharge, confinement for three months, and forfeiture of all pay and allowances. On 5 January 2000, the convening authority approved the adjudged sentence. In his sole assignment of error in this Article 66, UCMJ, 10 U.S.C. § 866, appeal, appellant asserts that 288 days of post-trial processing for this 385-page record of trial warrants relief under United States v. Collazo, 53 M.J. 721 (Army Ct.Crim.App.2000). The government replies that, unlike Collazo, appellant has made no colorable showing of prejudice which would entitle him to relief. The government’s brief concludes by stating, “While appellant asks this Court to stretch the holding in Collazo to mean that Article 59, UCMJ, 10 U.S.C. § 859, does not apply to post-trial delay cases, such an endeavor would clearly be beyond the jurisdiction of this Court.” The government’s position suggests a misunderstanding of this court’s responsibility and authority to determine sentence appropriateness under Article 66(c), UCMJ. For the reasons discussed herein, we hold that Article 59(a), UCMJ, does not limit this court’s responsibility under Article 66(c), UCMJ, to “affirm only ... such part or amount of the sentence, as it ... determines, on the basis of the entire record, should be approved." UCMJ art. 66(c) (emphasis added). Historical Impetus for Article 66, UCMJ To understand the Service Courts of Criminal Appeals’ unique Article 66, UCMJ, responsibilities, it is helpful to have some historical background about their enactment. Up until World War I, commanders and the public felt that the disciplining of troops was primarily commanders’ business, because a commander who could be trusted to take his troops into combat could also be trusted to treat them fairly in courts-martial. Two controversial courts-martial in 1917 changed that attitude. First, in October 1917, a number of non-commissioned officers (NCOs) who were under arrest for minor infractions at Fort Bliss, Texas, refused to attend a drill formation because an Army Regulation provided that NCOs under arrest should not attend drill. Of the fourteen soldiers court-martialed in these “Texas Mutiny” cases, ten were found guilty and sentenced to dishonorable discharges and confinement for various terms ranging from three to seven years. As a result of action initiated by The Judge Advocate General and the Inspector General, the ten convicted soldiers were restored to duty on 5 January 1918 without loss of pay. Second, in the summer of 1917 there were a number of escalating racial confrontations in Houston, Texas, between black soldiers and white citizens of the local community, which culminated in a riot by the black soldiers during which fifteen local citizens were killed. In November and December 1917, sixty-three black soldiers were court-mart-ialed in one mass trial at Fort Sam Houston, Texas, for mutiny and murder. Of the fifty-eight soldiers who were convicted, forty-one were sentenced to life imprisonment and thirteen were sentenced to death. The thirteen soldiers sentenced to death were hanged the next morning in a mass execution. The results in the “Texas Mutiny” and the “Houston Riot” cases, including the execution of thirteen death sentences the day after trial, were procedurally consistent with the Articles of War then in effect. See Article of War 48, Act of Aug. 29,1916, Pub.L. No. 64-242, 39 Stat. 619, 658, reprinted in Manual for Courts-Martial, United States (1917 ed.), at 316 [hereinafter MCM, 1917], As a consequence of these two notorious cases, the Secretary of War established advisory Boards of Review in January 1918, which were codified in the Articles of War in 1920. See Article of War 50% Act of June 4, 1920, Pub.L. No. 66-242, 41 Stat. 759, 797-99, reprinted in MCM, 1920, at 512-15. These Boards of Review are the progenitors of the modern-day Service Courts of Criminal Appeals. During and after World War II, Senators and Representatives were flooded with complaints from the families of servicemembers who had never been in trouble with the law in civilian life, but who spent time in military prisons and came home with court-martial convictions. The central issue during subsequent reform proceedings was how to blunt public criticism that commanders exercised too much control over court-martial procedures and results. The Uniform Code of Military Justice, enacted in 1950, was Congress’ evolutionary response to public demands for increased procedural due process in military justice that began with the “Texas Mutiny” and “Houston Riot” cases of 1917. The Interplay Between Article 66 and Article 59, UCMJ When Congress enacted the Uniform Code of Military Justice, it granted precise and independent responsibilities over military justice to the President, the Service Secretaries, the Judge Advocates General, the newly created United States Court of Military Appeals, the Service Boards of Review, and convening authorities. This court’s Article 66, UCMJ, charter of jurisdiction is narrowly circumscribed. See generally Clinton v. Goldsmith, 526 U.S. 529, 535, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999). First, we may act on cases referred to us by our Judge Advocate General, in accordance with the requirements of Article 66(b), UCMJ, and the rules of procedure prescribed by the President under Article 36, UCMJ, 10 U.S.C. § 836. See UCMJ art. 66(b) and (c); Rule for Courts-Martial [hereinafter R.C.M.] 1201 and 1203. Second, our jurisdiction to act is limited to the findings and sentence as approved by the convening authority. UCMJ art. 60,10 U.S.C. § 860 and 66(c). For those cases that fall within our limited Article 66, UCMJ, jurisdiction, our statutory-responsibility is one of the broadest and most unusual of any criminal appellate court in this country. See United States v. Sothen, 54 M.J. 294, 296 (2001); United States v. Lacy, 50 M.J. 286, 287-88 (1999). Article 66, UCMJ, provides that this court: 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. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. UCMJ art. 66(c). Other than twice changing the name of our tribunal, Congress has not altered the language of Article 66(c) since its enactment in 1950. The three components of our Article 66(c), UCMJ, authority are commonly referred to as legal sufficiency (“correct in law”), factual sufficiency (“correct in ... fact”), and sentence appropriateness (“may affirm only ... such part or amount of the sentence, as it ... determines, on the basis of the entire record, should be approved”). Our appellate review authority is broader than that of our superior court, which is limited to legal sufficiency. See UCMJ art. 67(c), 10 U.S.C. § 867(c); Lacy, 50 M.J. at 288; United States v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991). Article 59(a), UCMJ, upon which the government argument relies, provides that “[a] finding or sentence of [a] court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” (Emphasis added). Without question, Article 59(a), UCMJ, limits our Article 66, UCMJ, authority to reverse any finding or sentence on the basis of any error of law. See United States v. Powell, 49 M.J. 460, 464 (1998). Our decisions on legal sufficiency (i.e., matters that are “incorrect on the ground of an error of law”) are subject to review by our superior court. UCMJ art. 59(a), 66(c), and 67(c). Our Article 66, UCMJ, authority to review for factual sufficiency and sentence appropriateness exists separately and independently from our legal sufficiency authority. This awesome, plenary, de novo power of review grants unto the [Court of Criminal Appeals] authority to, indeed, “substitute its judgment” for that of the military judge. It also allows a “substitution of judgment” for that of the court members. In point of fact, Article 66 requires the [Court of Criminal Appeals] to use its judgment to “determine[ ], on the basis of the entire record” which findings and sentence should be approved. United States v. Cole, 31 M.J. 270, 272 (C.M.A.1990) (emphasis and third alteration in original) (quoting UCMJ art. 66(c)). “A clearer carte blanche to do justice would be difficult to express.” Claxton, 32 M.J. at 162. For nearly fifty years, our superior court has consistently interpreted our sentence appropriateness responsibility as a sweeping Congressional mandate to ensure “a fair and just punishment for every accused.” United States v. Lanford, 6 U.S.C.M.A. 371, 378, 20 C.M.R. 87, 94, 1955 WL 3541 (1955). Under Article 66(c), UCMJ, we “can, in the interests of justice, substantially lessen the rigor of a legal sentence.” Id. We have the power of the “proverbial 800-pound gorilla when it comes to [our] ability to protect an accused.” United States v. Parker, 36 M.J. 269, 271 (C.M.A.1993). While the plain language of Article 59(a), UCMJ, clearly restricts our authority to hold a finding or a sentence “incorrect on the ground of an error of law” (legal sufficiency) to those legal errors which are materially prejudicial, it just as clearly does not address, nor in anyway restrict, our responsibil ity under Article 66(c), UCMJ, to affirm only those findings of guilty we find “correct in ... fact” (factual sufficiency) and to affirm only that part of the sentence that we determine “should be approved” (sentence appropriateness). In simple terms, Article 59(a), UCMJ, only limits our authority to reverse any finding or sentence on the ground of any error of law, while our factual sufficiency and sentence appropriateness responsibilities under Article 66(c), UCMJ, constrain our authority to affirm. See Powell, 49 M.J. at 464. A convening authority has absolute discretion to disapprove findings of guilty or all or a part of an adjudged sentence. UCMJ art. 60(c); Lacy, 50 M.J. at 287. A convening authority’s decision granting such relief is not subject to review by this court or our superior court. UCMJ art. 66(c) and 67(c) (limiting the scope of our review and review by our superior court to the findings and sentence “as approved by the convening authority”). Similarly, any relief that we grant an appellant exercising our factual sufficiency or sentence appropriateness responsibilities is final. See United States v. Dukes, 5 M.J. 71, 72-73 (C.M.A.1978); United States v. Maze, 21 U.S.C.M.A. 260, 262, 45 C.M.R. 34, 36, 1972 WL 14113 (1972); United States v. Turner, 15 U.S.C.M.A. 438, 439, 35 C.M.R. 410, 411, 1965 WL 4698 (1965); United States v. Christopher, 13 U.S.C.M.A. 231, 234-36, 32 C.M.R. 231, 234-36, 1962 WL 4483 (1962); United States v. Higbie, 12 U.S.C.M.A. 298, 300, 30 C.M.R. 298, 300, 1961 WL 4441 (1961). Any sentence that we affirm, under our “highly discretionary power” to determine sentence appropriateness, however, is subject to legal review by our superior court for obvious miscarriages of justice or clear abuses of discretion that demonstrate such an abrogation of our Article 66, UCMJ, sentence appropriateness responsibility as to constitute an error of law that materially prejudices the substantial rights of an accused. See UCMJ art. 59(a); Sothen, 54 M.J. at 296; Lacy, 50 M.J. at 287-88; Dukes, 5 M.J. at 73; Christopher, 32 C.M.R. at 234-37. In 1957, the United States Supreme Court issued two companion decisions that expressly rejected numerous legal challenges to our sentence appropriateness responsibility and concluded that it was not for the Court “to question the judgment of the Congress in selecting the process it chose.” Jackson v. Taylor, 353 U.S. 569, 580, 77 S.Ct. 1027, 1 L.Ed.2d 1045 (1957); see also Fowler v. Wilkinson, 353 U.S. 583, 584, 77 S.Ct. 1035, 1 L. Ed.2d 1054 (1957). The Court noted that Congress first granted sentence appropriateness responsibility to the Boards of Review with the enactment of the UCMJ in 1950, over the objection of military officials who “opposed giving the review boards power to alter sentences.” Jackson, 353 U.S. at 575-77, 77 S.Ct. 1027. The Court also noted that the legislative history of Article 66(c), UCMJ, clearly indicated a Congressional intent for a board of review to affirm only so much of the sentence as it found to be “justified by the whole record” and to set aside any part of a sentence “either because it is illegal or because it is inappropriate.” Id. at 576-77, 77 S.Ct. 1027 (emphasis added) (citations omitted). See also United States v. Cavallaro, 3 U.S.C.M.A. 653, 655, 14 C.M.R. 71, 73, 1954 WL 2093 (1954); United States v. Simmons, 6 C.M.R. 105, 106, 1952 WL 2285 (C.M.A. 1952). The government’s interpretation of Article 59(a), UCMJ, would limit our sentence appropriateness authority to situations involving a prejudicial error of law and would undermine our authority to reduce sentences that we found to be legal but inappropriate. Such an interpretation is contrary to the intent of Congress as explained by the Supreme Court. Relief is required under Article 59(a), UCMJ, when dilatory post-trial processing, that constitutes an error of law, materially prejudices the substantial legal rights of an accused. See United States v. Hudson, 46 M. J. 226, 227 (1997); United States v. Bell, 46 M.J. 351, 353 (1997); United States v. Jenkins, 38 M.J. 287, 288-89 (C.M.A.1993); United States v. Bruton, 18 M.J. 156, 157 (C.M.A.1984); United States v. Shely, 16 M.J. 431, 432-33 (C.M.A.1983); United States v. Sutton, 15 M.J. 235, 236 (C.M.A. 1983); United States v. Clevidence, 14 M.J. 17, 19 (C.M.A.1982); United States v. Banks, 7 M.J. 92, 93 (C.M.A.1979). None of these eases states or implies that this court may not exercise its “highly discretionary power” to grant sentence relief under Article 66(c), UCMJ, in cases where there is no material prejudice or error of law. See Lacy, 50 M.J. at 287-88. In summary, Congress granted this court sentence appropriateness responsibility because it wanted a judicial body to review all approved sentences which include a punitive discharge or confinement for a year or more, even when no legal error was committed, as a procedural safeguard against inappropriately severe sentences. Accordingly, the UCMJ requires that the members of this court independently determine, in every ease within our limited Article 66, UCMJ, jurisdiction, the sentence appropriateness of each case we affirm. While each member of this court takes great care not to abuse this awesome power, it would be an abrogation of our sentence appropriateness responsibility to disregard the timeliness, or lack thereof, of the post-trial processing of a soldier’s court-martial record in our consideration of sentence appropriateness. United States v. Collazo In Collazo, our court adopted a totality of the circumstances test to determine whether fundamental fairness warranted sentence relief for unreasonable post-trial processing. Collazo, 53 M.J. at 727. This standard has been criticized because “it is hard to know what will warrant relief.” There is no precise yardstick for measuring sentence appropriateness determinations. Determining whether post-trial delay warrants relief under Collazo is no more or no less difficult than determining how much relief is warranted in any other case with sentence appropriateness issues. Notwithstanding the lack of a mathematical formula, there are several principles that are helpful to the fair resolution of unreasonable post-trial processing delays. First, post-trial processing must support the purpose of military law. “The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.” MCM, 2000, Part I, para. 3. The Army, the chain of command, each victim, every person who knows about an offense, and most of all the accused, has an interest in the timely completion of courts-martial, to include the post-trial process. Every accused soldier has friends and family members (to include other soldiers) who may carefully monitor each phase of the court-martial of that accused soldier. Not only is untimely post-trial processing unfair to the soldier concerned, but it also damages the confidence of both soldiers and the public in the fairness of military justice; thereby directly undermining the very purpose of military law. See generally. Williams, 42 M.J. at 794 (stating that Article 98, UCMJ, 10 U.S.C. § 898, shows a strong Congressional intent in favor of expeditious post-trial processing). Second, staff judge advocates have “been elevated to that responsibility because of [their] sound judgment and proven professional competence.” United States v. Kema, 10 U.S.C.M.A. 272, 274, 27 C.M.R. 346, 348, 1959 WL 3626 (1959). When preparing post-trial recommendations, staff judge advocates apply their legal knowledge and military experience to “determine whether the accused has been denied military due process.” Id. Staff judge advocates enhance military due process and fundamental fairness by ensuring “that the government proceed[s] with due diligence to execute a soldier’s regulatory and statutory post-trial processing rights and to secure the convening authority’s action as expeditiously as possible, given the totality of the circumstances in that soldier’s case.” Collazo, 53 M.J. at 727. Third, staff judge advocates and convening authorities have primary responsibility for taking corrective action for unreasonable post-trial delays. Staff judge advocates are in the best position to investigate and deter mine whether the time from trial to action in a particular ease is so unreasonable as to warrant some relief by the convening authority. The now discarded Dunlap rule drew a bright-line between reasonable and unreasonable post-trial processing, when an accused was under continuous restraint from trial to action, at ninety days. Under Colla-zo, staff judge advocates must independently evaluate each case, including any specific request for relief from an accused’s defense counsel under R.C.M. 1105, to determine what relief may be warranted. When no relief is given in spite of apparent excessive post-trial delay, the staff judge advocate’s recommendation or addendum should explain any unusual circumstances for the otherwise untimely action in that particular case. The convening authority would normally moot the need for additional relief by this court by granting relief for untimely post-trial processing in his action. See Collazo, 53 M.J. at 725 n. 2; United States v. Benton, ARMY 9701402, slip op. at 1 n.l (Army Ct.Crim.App. 10 Aug. 2000) (unpub.) (noting no Collazo relief required by this court after convening authority reduced confinement from three years to thirty months in response to trial defense counsel’s complaint about the 244-day delay from the end of trial to the defense counsel’s examination of the 534-page record). Finally, our sentence appropriateness responsibility “involves the judicial function of assuring that justice is done and that the accused gets the punishment he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A.1988). Clemency, which involves granting mercy and “treating am accused with less rigor than he deserves,” is not part of our sentence appropriateness responsibility. Id. Dilatory post-trial processing, without an acceptable explanation, is a denial of fundamental military justice, not a question of clemency. Intervention by this court is necessary only when the convening authority fails to grant relief in his action or the staff judge advocate fails to document an acceptable explanation for the untimely post-trial processing. Acceptable explanations may include excessive defense delays in the submission of R.C.M. 1105 matters, post-trial absence or mental illness of the accused, exceptionally heavy military justice post-trial workload, or unavoidable delays as a result of operational deployments. Generally, routine court reporter problems are not an acceptable explanation. See Clevidence, 14 M.J. at 19. In appellant’s case, we find that 288 days from trial to action for a 385-page record of trial is unreasonable. There is nothing in the record or allied papers that attempts to justify this delay. Considering the record as a whole and the totality of the circumstances surrounding appellant’s case, we will grant appellant one month of confinement relief in our decretal paragraph. UCMJ art. 66(c); Collazo, 53 M.J. at 727. Decision The findings of guilty are affirmed. After considering the entire record, the court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for two months, and forfeiture of all pay and allowances. Senior Judge TOOMEY and Judge HARVEY concur. . "A finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” UCMJ art. 59(a).

3835437-28122

OPINION AND ORDER LOWE, District Judge. Before the Court are objections to two Reports and Recommendations from a Magistrate Judge, pursuant to Fed.R.Civ.P. 72, by Plaintiff Dhoruba Bin Wahad (“Plaintiff”) and by Defendants. Plaintiff moved for sanctions and attorneys’ fees and expenses pursuant to Fed.R.Civ.P. 37(b). Defendants Federal Bureau of Investigation (“FBI”), Attorney General of the United States, Director of the FBI, and “Richard Roe”, representative of unnamed federal defendants, moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) or summary judgment pursuant to Fed.R.Civ.P. 56. These motions were referred to Magistrate Judge Nina Gershon on April 22, 1988. The Magistrate Judge filed a Report and Recommendation on October 11, 1991 (the “October R & R”) in which she advises that Plaintiff’s motions be granted and that Defendants’ motion be denied. Defendants have filed objections to the R & R pursuant to Fed.R.Civ.P. 72. For the reasons set forth below, this Court adopts the October R & R with modification as to the appropriate sanction. Also, in a Report and Recommendation filed April 15, 1992 (the “April R & R”), Magistrate Judge Gershon addressed the motions of defendants James Lott and John Higgins, former FBI agents, to dismiss pursuant to Fed.R.Civ.P. 12 or for summary judgment pursuant to Fed.R.Civ.P. 56. In the R & R, the Magistrate Judge recommends that Defendant Lott’s motion for summary judgment be granted to the extent of dismissing all common law tort and 42 U.S.C. § 1983 claims, and denied in all other respects. The Magistrate Judge recommends that Defendant Higgins’ motion for summary judgment based on lack of personal jurisdiction should be granted. The parties have filed cross-objections to the R & R. For the reasons set forth below, this Court adopts in part the April R & R. BACKGROUND The background of this case has been stated in prior opinions of this Court, and it will now be repeated only in summary. This action was filed on December 10,1975. Plaintiff’s complaint alleged illegal surveillance and initiation of false criminal charges by past and present federal and local officials, both named and unnamed. Plaintiff claims that these actions, directed against him and the Black Panther Party, violated his constitutional rights and rights granted to him under federal statutes. Plaintiff amended his complaint on September 10, 1976, alleging that he was the target of the FBI counter-intelligence COINTELPRO program, and subjected to illegal electronic and physical surveillance by the FBI. Plaintiff is a former leader of the New York chapter of the Black Panther Party. He was a member of the chapter from 1968 to 1971. In 1973, he was convicted in New York State for the 1971 attempted murder of two New York City police officers, and sentenced to 25 years in prison. In 1990, after serving 19 years in prison, he was released from custody. Here, Plaintiff claims that the alleged acts of Defendants were committed, even during the time of his incarceration, in an effort to neutralize him as a political spokesperson. Plaintiff seeks declaratory and injunctive relief, as well as monetary damages, for the harm alleged to have been done. Specifically, Plaintiff seeks to enjoin Defendants from illegally opening his mail and monitoring his conversations. He also seeks to prevent Defendants from using and disseminating materials gathered through illegal mail covers, burglaries, and electronic surveillance. Finally, he seeks the return of materials alleged to have been illegally obtained from his possession. DISCUSSION I. Report and Recommendation of October 11, 1991. A. Sanctions. Among the materials received by the federal Defendants is the Plaintiff’s address book. This book was removed from Plain tiff’s jail cell in 1984 without his knowledge or consent. The importance of this act is that it may shed light on a continuing pattern of misconduct by the Defendants, and support Plaintiff’s request for injunctive relief. Defendants contend that all investigations of the Plaintiff ceased in 1974; however, Plaintiff contends that the informant who gave the book to the FBI did so at the request of that agency. Plaintiff seeks discovery from the informant as to these matters. On June 26, 1990, Magistrate Judge Gershon issued an order directing that the FBI provide Plaintiff with the name of the informant who provided it with Plaintiff’s address book. This order was affirmed by this Court in an Order dated August 20, 1990. Plaintiff seeks sanctions against the FBI pursuant to Fed.R.Civ.P. 37 for failure to comply with the discovery orders issued by the Court. The issue before the Court is whether these orders have been violated, and, if so, whether sanctions are appropriate. Defendants failed to comply with this Court’s order. On November 14, 1990, Plaintiff moved for issue-determinative sanctions pursuant to Fed.R.Civ.P. 37(b). FBI Director William Sessions filed an affidavit in opposition to this motion on December 13, 1990. This affidavit contained suggested alternatives to the disclosure of the informant’s name, such as an in-camera deposition, written interrogatories, or a deposition by telephone. These alternatives were not suggested until after the orders of the Magistrate Judge and the District Court were issued, and not until after Plaintiff moved for sanctions. The suggestion of alternatives does not change noncompliance with court orders regarding discovery. Issue-related sanctions, granted pursuant to Fed.R.Civ.P. 37(b), are a remedy for failure to comply with an order to permit discovery. The purpose of sanctions is to improve the ability of the party refused discovery to prosecute the action without the information requested, and to improve that party’s ability to identify damages suffered. See In re Attorney General, 596 F.2d 58, 67 (2d Cir.), cert. denied, 444 U.S. 903, 100 S.Ct. 217, 62 L.Ed.2d 141 (1979). This Court stated in the August 20, 1990 Order that Plaintiff may be able to support his claim of an ongoing pattern of misconduct once the identity of the informant is revealed. 132 F.R.D. 17, 24, August 20, 1990 Order at 20. An appropriate sanction in this case will enable Plaintiff to proceed with his action without the information sought by discovery. Parties must not be permitted to better their position because they have failed to comply with discovery orders. Sanctions ensure that this does not occur. While sanctions are severe measures, they are appropriate particularly in cases such as this where it is the government that disobeys court orders; the government is charged with the enforcement of law and should set examples for others to follow. National Lawyers Guild v. Attorney General, 94 F.R.D. 600, 615 (S.D.N.Y.1982) (citing Perry v. Golub, 74 F.R.D. 360, 366 (N.D.Ala.1976), and United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1370 (9th Cir.1980)). “The parties ... must be prepared to adhere to the orders of the court whose assistance they seek, whether or not they agree with those orders.” National Lawyers Guild, 94 F.R.D. at 616. The Court considers two factors which limit its discretion in imposing sanctions. The United States Supreme Court, in Insurance Corp. v. Compagnie Des Bauxites, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982), delineated these factors. Sanctions “must be ‘just,’ ” and “must be specifically related to the particular ‘claim’ which was at issue in the order to provide discovery.” Id. at 707, 102 S.Ct. at 2107. The imposition of sanctions in this case would be “just” because Defendants willfully failed to comply with two orders— one by the Magistrate Judge and one by this Court. Sanctions would need to be fashioned so that they relate to the Plaintiff’s “claim” that the FBI requested an informant to provide them with the address book. Fed.R.Civ.P. 37(b)(2)(A) allows the court to order designated facts to be taken as established in accordance with the claim of the party obtaining the order. The appropriate sanction in this case establishes the following as fact for the purpose of this action: In 1984, Plaintiffs address book was taken from his cell without his knowledge or consent by an informant acting at the request of the FBI. This sanction is not a finding of unlawfulness by the FBI or other federal Defendants, nor is it reflective of a direct investigation of the Plaintiff. Any inferences of misconduct can be rebutted by Defendants. The recommendation of the Magistrate Judge that sanctions be imposed is accepted. The sanction is as modified above. B. Costs and Attorneys’ Fees. Plaintiff seeks an award of costs and attorneys’ fees pursuant to Fed.R.Civ.P. 37(a)(4) and 37(b)(2). The Magistrate Judge found that Plaintiff is entitled to $28 for photocopying expenses, and $5,250 in attorneys’ fees for attempting to obtain sanctions or compliance with the August 20, 1990 order. No objections to these findings were made, and the Court adopts them as to costs and attorneys’ fees. C. Motion for Summary Judgment. Also before the Court is a motion by the federal Defendants for summary judgment. Summary judgment shall be rendered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Defendants contend that there was no investigation of Plaintiff in 1984, and that therefore Plaintiff’s prayer for injunctive relief is without merit. The Magistrate Judge recommends that this motion be denied because sanctions create an issue of fact which precludes summary judgment. This Court agrees that there is a genuine issue of material fact in dispute which preeludes summary judgment. The imposed sanction creates an inference which favors Plaintiff; this issue requires submission to the finder of fact as to who should prevail on this claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). Unresolved is whether the federal Defendants violated Plaintiff’s statutory and constitutional rights through a continuing, improper investigation of him. Evidence of this investigation is not “merely colorable,” Id.; the sanction has established facts sufficient to allow this issue of an unlawful investigation to go to trial. For this reason, the Court adopts the Magistrate Judge’s recommendation, and Defendants’ motion for summary judgment is denied. II. Report and Recommendation of April 15, 1992. In the April R & R, the Magistrate Judge addressed motions by Defendants James Lott and John Higgins, former FBI agents, for dismissal under Rule 12 or for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Defendants submitted affidavits on the issue, and the Magistrate Judge appropriately treated the motions as requesting summary judgment. Fed.R.Civ.P. 12(c). The motions of the Defendants will be addressed individually. A. James Lott. Plaintiff claims that Defendant Lott violated his rights of association and privacy as guaranteed under the First and Ninth Amendments to the Constitution. Plaintiff also claims that Lott is liable as a co-conspirator with other agents who violated Plaintiff’s Fourth and Fifth Amendment rights along with other federal rights. Plaintiff’s claims were brought pursuant to the following: (a) Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which held that damages are recoverable for constitutional torts committed by federal agents (the “Bivens claim”); (b) 42 U.S.C. §§ 1985(3) and 1986, alleging conspiracy with other FBI agents, officials of the New York City Police Department, informants, and the media, to violate Plaintiff’s constitutional rights; and (c) 42 U.S.C. § 1983, alleging conspiracy with members of the New York City Police Department. Beginning in 1967 and ending during the Spring of 1973, Defendant Lott participated through COINTELPRO in the preparation of communications directed at the disruption of the Black Panther Party. Through the program, information was disseminated in an attempt to discredit the Black Panther Party and its members, and to impede its operations and activities. The communications were directed by FBI Headquarters. Also, Lott claims that he did not engage in field activities of COINTELPRO, such as surveillance and wiretapping. 1. The Bivens Claim. Lott counters the Bivens, claim by arguing that he is entitled to a qualified immunity defense. He contends that the limits of permissible governmental conduct in interfering with the speech and association of groups such as the Black Panther Party were not clear in the late 1960’s. Lott also argues that he could not reasonably have known that his compliance with FBI directives was unconstitutional. The Magistrate Judge found that the rights of groups like the Black Panther Party were clearly established at the time of Lott’s actions. The Magistrate Judge also determined that there was an issue of fact as to the objective reasonableness of Lott’s belief that his acts did not violate Plaintiff’s rights. The Magistrate Judge recommended that summary judgment be denied to Defendant Lott on this issue. Government officials may be able to escape liability for their discretionary acts on qualified immunity grounds. They “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). This objective reasonableness is measured by reference to clearly established law, and permits insub-. stantial claims to be resolved by summary judgment. Id. On a summary judgment motion based on qualified immunity grounds, the Court is to determine the law applicable to the claim, whether it was clearly established at the time of the action, and if Defendant should have known about it. Id. at 819, 102 S.Ct. at 2738. Even if the applicable law is clear, Defendant is entitled to qualified immunity if it was not clear at the time of the acts that an exception to that law did not permit those acts. Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987). Finally, Defendant is entitled to qualified immunity if it was objectively reasonable to believe that his acts under the circumstances did not violate Plaintiff’s rights. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Krause v. Bennett, 887 F.2d 362 (2d Cir. 1989); Robison, 821 F.2d at 921. The Court must look at the actions of Defendant in an objective light, and determine if he could reasonably have believed that his actions were lawful. The Magistrate Judge concluded that the constitutional rights of speech and assembly were clearly established at the time of the COINTELPRO program. This Court agrees. Numerous Supreme Court cases established that the threat of violence or unlawful activity must be imminent, or present a “clear and present danger,” before those activities could be disrupted. The mere advocacy of violence or unlawfulness is constitutionally protected. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (speech and assembly which advocate violence are protected except where directed at inciting or producing imminent lawless action); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (speech must create a clear and present danger to be unprotected; a group must be presently ready to act before its activities can be limited); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937) (rights of free speech and assembly are violated by the imposition of criminal punishment for participation in a public meeting by a group that teaches violence). See also Hobson v. Wilson, 737 F.2d 1, 27-28 (D.C.Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985) (listing line of Supreme Court cases which established constitutional right of association as of 1967). The government purpose must be narrowly effectuated so as not to interfere with protected constitutional rights while interfering with unprotected rights. See Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). The activities in which Lott participated through COINTELPRO could reasonably be found to have disrupted the Plaintiff’s and Black Panther Party’s protected rights to speech and assembly. The law in this area was established at the time of the alleged acts of the Defendant. It was not objectively reasonable for him to believe that his acts did not violate Plaintiffs rights. “An official does not have immunity ... where the contours of the right were sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Pies-co v. City of New York, Dep’t of Personnel, 933 F.2d 1149, 1160 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991) (citing Anderson, 483 U.S. at 640, 107 S.Ct. at 3039). The law in the late 1960’s was clear as it relates to the facts of this case. Defendant Lott is not entitled to summary judgment based on the qualified immunity defense. Summary judgment as to Defendant’s activities in COINTELPRO is denied. Defendant counters that he is still entitled to a qualified immunity defense because he obeyed the orders and directives of superiors, and complied with FBI policy. Defendant uses as support for his argument a line of cases in which officials were relieved of personal liability where they justifiably relied on decisions by government attorneys. Magistrate Judge Gershon properly distinguished the instant case from the cases to which Defendant sought to analogize his situation. Here, Defendant relied on instructions from superiors within the FBI; in the former cases, the defendants relied on statements of government attorneys. The Court rejects application of these cases to the facts of the present case. The case at hand involves obedience to internal orders and directives. To allow one who obeys orders to escape liability for the direct violations of the constitutional rights of others would greatly narrow the effect of Bivens. The fact that one violates the constitutional rights of another because of the orders of superiors will not allow that person to avoid liability for those violations. Defendant’s liability will be left for determination by the finder of fact. 2. Conspiracy Claims. a. 42 U.S.C. § 1985(3). Lott seeks summary judgment on the issue of his alleged involvement in a racially motivated conspiracy with other FBI agents, officials of the New York City Police Department (“NYCPD”), and others, to violate Plaintiff’s constitutional rights. He also seeks summary judgment on the issue of his alleged failure to prevent violations of those constitutional rights. Defendant argues that he was merely a low-level agent acting in compliance with policy ap proved by the agency and his superiors. Further, he argues that the actions of employees of a single entity, here the FBI, should not be considered to constitute a civil conspiracy. In the April R & R, Magistrate Judge Gershon recommended that these arguments be rejected and that Defendant Lott’s motion for summary judgment on this issue be denied. Damages may be recovered against persons who act in furtherance of a conspiracy to interfere with civil rights. Such a conspiracy is statutorily defined as consisting of “two or more persons” who “conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” 42 U.S.C. § 1985(3). The conspiracy is actionable “if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy,” and if another is injured or deprived of “any right or privilege of a citizen of the United States.” Id. Damages are recoverable “against any one or more of the conspirators.” Id. To recover on a § 1985(3) claim, plaintiff has the burden of proving that defendant: (1) engaged in a conspiracy; (2) acted for the purpose of depriving one of equal protection or equal privileges and immunities; (3) acted in furtherance of the conspiracy; and (4) deprived the person of the exercise of any right or privilege of a citizen of the United States. See Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971); New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1358 (2d Cir.1989), cert, denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990). Further, “[tjhere must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. The Magistrate Judge found that Plaintiff presented sufficient evidence from which a jury could infer that Lott engaged in a conspiracy with other FBI agents to violate Plaintiff’s constitutional rights. She further found sufficient evidence of Lott’s purpose and- intent, and of activities designed to “neutralize” the Black Panther Party and Plaintiff. The Magistrate Judge finally found that sufficient evidence was presented by Plaintiff to support a finding of class-based animus by Lott, and that this element was an issue of fact to be determined at trial. Defendant argues that, as a matter of law, he cannot be liable for conspiring with other FBI agents because the FBI is a single entity involved in a single activity, and that he followed orders given from within that entity. This theory was enunciated in Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir.1972), where the court reasoned that the requirement of “two or more persons” in 42 U.S.C. 1985(3) is not satisfied where the challenged conduct is a single act reflective of a decision by “executives of the same firm,” even if two or more persons engaged in that conduct. This rule has been applied in this circuit to various corporate/business entities. The primary case in the Second Circuit is Girard v. 94th St. and Fifth Ave. Corp., 530 F.2d 66, 70-71 (2d Cir.), cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798 (1976), which held that § 1985(3) does not apply to the implementation of a single policy by a single policy making body. That case involved a cooperative apartment corporation and its directors. This rule allows actors within a business entity to escape liability under § 1985(3). The defense that a single corporation and its employees cannot conspire under § 1985 is not always accepted where continuing, separate instances of discrimination are alleged. In Yeadon v. New York City Transit Auth., 719 F.Supp. 204 (S.D.N.Y.1989), plaintiffs alleged wrongful arrest by transit authority police officers pursuant to a conspiracy between the officers, their supervisors, and the transit authority. The court held that plaintiffs “adequately alleged a series of separate discriminatory acts by the corporate entity and its agents.” Id. at 212. See also Rackin v. University of Pennsylvania, 386 F.Supp. 992 (E.D.Pa.1974) (complaint alleged repeated, continuous discriminatory episodes); Stathos v. Bowden, 728 F.2d 15 (1st Cir.1984) (same). In the instant case, Plaintiff adequately alleges distinct and individual acts of discrimination. Further, the “single corporate entity” rule does not apply to federal agencies as it does to business entities. If federal agencies were viewed as business entities, § 1985(3) would be ineffective to deal with potential' conspiracies within the government. § 1985(3) is broad in its language, and relates to conspiracies by “any person.” Moriani v. Hunter, 462 F.Supp. 353, 356 (S.D.N.Y.1978) (includes emphasis). The Court, like Magistrate Judge Gershon before it, declines to apply the rule in Girard to federal agents and agencies. A federal agent is a “person” capable of conspiring to violate civil rights notwithstanding that he or she is an actor within an agency. See Peck v. United States, 470 F.Supp. 1003, 1008-12 (S.D.N.Y.1979) (conspiracy statute applies to federal officers); Moriani, 462 F.Supp. at 356 (same); Hobson v. Wilson, 737 F.2d 1, 19-20, 55 (D.C.Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985) (same). The scope of § 1985(3) shall not be narrowed by allowing federal agents to escape liability under it. Agents are not as a matter of law incapable of conspiring under § 1985(3). Defendant’s motion for summary judgment on this issue of a conspiracy between himself and other federal agents is denied. The Magistrate Judge found no evidence of a § 1985(3) conspiracy between Defendant Lott and FBI informants and the media. Plaintiff has not objected to these findings by the Magistrate Judge. The R & R on this issue is adopted by this Court pursuant to Fed.R.Civ.P. 72. Summary judgment is granted in favor of Defendant Lott on the issue of a conspiracy between himself and FBI informants, and between himself and the media. b. 42 U.S.C. § 1986. If Defendant Lott was able to prevent the commission of a § 1985(3) conspiracy between himself and other FBI agents and failed to do so, he will face liability under § 1986. One who knows of and has the ability to aid in preventing a § 1985 conspiracy has a duty to do so. If that person declines to take steps preventing that conspiracy he or she shall be liable to the injured party for damages which could have been prevented. 42 U.S.C. § 1986. Defendant contends that he was not a member of a conspiracy, and had no power to prevent one. Just as the existence of a conspiracy within the FBI between Lott and other agents is a finding of fact to be made at trial, the issue of whether Defendant participated in or could have prevented such a conspiracy, if one is found to exist, will be left for trial. The Magistrate Judge’s R & R as to this issue is adopted, and Defendant’s motion for summary judgment on this issue is denied, c. Claims of Conspiracy Between Lott and Members of the NYCPD. Finally, Defendant Lott seeks summary judgment on the issue of his alleged conspiring with members of the NYCPD in violation of 42 U.S.C. §§ 1983 and 1985(3). In the R & R, Magistrate Judge Gershon recommended that this part of Defendant’s motion be granted because she found no sufficient evidence of a conspiracy between Lott and members of the NYCPD. This Court, however, does find evidence sufficient to create an inference of such a conspiracy, and will allow Plaintiff to proceed to trial on this issue. There exists a genuine issue of material fact for resolution at trial. Plaintiff has provided evidence which allows the inference that agents of the FBI and members of the NYCPD acted in conjunction in carrying out activities, such as the FBI’s “interview and arrest” program, in an effort to disrupt the Black Panther Party and Plaintiff in their exercise of lawful, constitutional activity. In correspondence dated April 15, 1969, to the Director of the FBI, the Special Agent in Charge of the New York Office of the FBI states that “arrests, of BPP [Black Panther Party] members have been made by Bureau Agents and the NYCPD. These interviews and arrests have helped to disrupt and cripple the activities of the BPP in the [New York City] area.” Plaintiff’s Appendix in Opposition to Defendants’ Lott and Higgins Motion to Dismiss and/or for Summary Judgment, p. 60. Further, stolen information from a Black Panther leader was given to the FBI by someone from the NYCPD, and this information was investigated by agents including Defendant Lott. Plaintiff’s Appendix, pp. 21-23. While this evidence is not dispositive of the issue of whether a conspiracy existed between agents of the FBI, including Lott, and members of the NYCPD, it does support an inference of mutual activity between the groups. “Mutually supportive activity by parties in contact with one another over a long period suggests a common plan.” Halberstam v. Welch, 705 F.2d 472, 481 (D.C.Cir.1983).

6086462-12664

FisheR, Judge: Respondent has determined a deficiency of $2,238.31 in petitioner’s income tax for 1957. The sole question in issue is whether petitioner is entitled to an ordinary loss deduction on account of the transfer by him to the extent of $6,100 of his interest in a note and 50 shares of stock of The Dorman Co. made in connection with settlement of affairs of John E. Burks, Inc., which latter company was insolvent. FINDINGS OF FACT Petitioner is a resident of Tulsa, Okla. His return for 1957 was filed with the director of internal revenue at Oklahoma City. In 1954, petitioner and a business acquaintance, Raymond B. Con-ard, were considering going together into some kind of business enterprise. Petitioner was a manufacturer’s representative and Conard was in the general construction business. Petitioner and Conard finally decided to open a Western Anto Associate Store. The store was built on land owned by Conard. A third party, John E. Burks, was engaged to act as store manager and for his services was to receive a small salary plus one-third of the store profits. Petitioner and Conard first considered forming a partnership or joint venture to operate the store. They agreed (and have continued to agree during all periods here relevant) that they would share profits and losses equally. On advice of their counsel, however, they decided to organize two separate corporations, one, the Dorman Co., to hold title to the land, and the other, John E. Burks, Inc., to operate the store. Their reasons for separate corporations were to isolate each of the corporations from the risks of the other and to limit their own individual liability. John E. Burks, Inc., hereinafter referred to as Burks, Inc., was incorporated January 8, 1955, and the Dorman Co. on March 9, 1955. Each of the companies issued 150 shares of $10 par value stock. Petitioner, Conard, and Burks each paid in $500 to each corporation and received 50 shares of the stock each. Conard loaned Burks the money for his investment in the stock. Title to the land and store building, known as 3120 South Winston Street, Tulsa, Okla., was conveyed to the Dorman Co. and the store was opened for business about April 1, 1955. Petitioner loaned the Dorman Co. $10,500 in cash and received a promissory note of the Dorman Co. for that amount secured by a second mortgage on its property. Burks, Inc., borrowed on its own promissory notes $30,000 from Brookside State Bank at Tulsa, and $6,000 from Maud C. Boswell. Both petitioner and Conard were personally liable on these notes. The store was unsuccessful from the beginning. It sustained operating losses of $9,352.92 in 1955, and $33,845.99 in 1956. In February 1956, petitioner decided that the business was a failure and told Conard that he wanted to close it down before more losses were incurred. Conard was more optimistic and wanted to continue a while longer. By August 1956 he too was ready to accept failure and it was decided to liquidate the business. Burks gave up the management of the store in June 1956 and assigned his shares of stock in Burks, Inc., and the Dorman Co. to Conard, who had loaned him the money to purchase them. Thereafter, the books and records of Burks, Inc., were kept by Conard who supervised the liquidation. In the meantime Conard, personally, had made cash advances to Burks of $17,600, of which $10,000 had been advanced after February 1956, when petitioner first suggested closing down the business. Petitioner had not guaranteed repayment of any of the $17,600 advanced by Conard. In December 1956, petitioner made a payment of $6,600 to Brookside State Bank on his liability on the Burks, Inc., note and wrote Conard the following letter— Decembeb 28, 1966. Me. R. B. Conard, SS16 South Orhana, Tulsa, Oklahoma Deab Rat : Even though we have not as yet definitely determined my share of the loss in our Western Auto venture, I am, for personal reasons, making a payment on the note we have endorsed at the Brookside State Bank during the calendar year 1966. This payment will be in the amount of six thousand and six hundred dollars ($6,600.00). I wanted you to know that this payment was being made so that full credit for it could be realized when the exact amount of my own losses is calculated. I sincerely hope that 1957 turns out to be a most satisfactory year for you and yours in all ways. Sincerely, In his income tax return for 1956 petitioner deducted the $6,600 paid to Brookside State Bank as a nonbusiness bad debt and also claimed a long-term capital loss deduction of $500 on his 50 shares of Burks, Inc., stock. These deductions are not at issue in this proceeding. On February 19, 1957, petitioner and Conard entered into an agreement providing as follows: AGREEMENT In consideration of the mutual covenants herein expressed, D. J. Condit and Ray Conard of Tulsa, Oklahoma, do hereby agree as follows: The parties have been associated since about January 1, 1956, jointly as stockholders and as creditors of John E. Burks, Inc., a corporation formed for the purpose of operating a Western Auto Association store at 31st and Winston, in Tulsa, Oklahoma, and, since March, 1955, as stockholders and creditors of the Dorman Company, a corporation formed for the purpose of owning and renting the building located at the same address. The operation of the Western Auto store has resulted in a substantial loss, which cannot be precisely determined at this time, but which the parties, for the purpose of this agreement, stipulate to be $47,000.00. This amount consists, of the following: Final balance of Brookside State Bank loan, after application of all funds, now in bank or collectible on Accounts Receivable. Estimated to be-$20, 000. 00 Balance on Boswell loan, including accrued interest_ 5, 800. 00 Loans by Ray Conard- 17, 600. 00 Estimated amount of loss on amount due Western Auto, less, collections to be made on contracts_ 3, 600. 00 47, 000. 00 Condit has made known his desire to discontinue the business before Conard was willing to do so. For this reason, it was agreed that Condit should not share in losses by Conard of money advanced by him after Condit expressed a desire to discontinue the business. The sum advanced by Conard after said date was agreed to have been $10,000.00, leaving a loss of $37,000.00 which the parties hereby agree to share equally. It is agreed that Condit will bear his one-half of the loss of $37,000 in the following manner: By payment on the Brookside State Bank note_$6, 600. 00 By assumption in full of the principal balance of the Boswell note, together with accrued interest_ 5, 800. 00 By a reduction in his receivable of $10,500.00 advanced in exchange for a second mortgage on The Dorman Company property- 6,100. 00 18, 500. 00 Conard agrees to bear his share of the loss in the following manner: By payment of the balance of the Brookside State Bank note after application of company funds. Estimated to be_$13, 400. 00 By paying final amount to Western Auto Company, less collections on contracts. Estimated to be_ 3, 600. 00 By personal advances to the company_ 7,600.00 Total- 24, 600.00 Less advantage gained by reduction in second mortgage of The Dorman Company held by Condit_ 6,100.00 Remainder. 18, 500. 00 Condit agrees to assign his stock in John E. Burks, Inc., and The Dorman Company to Conard. Conard agrees to attend to the final liquidation of John E. Burks, Inc. and make settlement with Western Auto Company and all others involved, and agrees that Condit is hereby released of all further responsibility of any kind whatsoever and shall be held harmless by Conard for any costs or expenses, other than that agreed to herein, which he may bo required to pay by reason of the existence or operation of John E. Burks, Inc. and The Dorman Company. IN WITNESS WHEREOF, the parties have affixed their signatures hereto this 19 day of February, 1957. (S) D. J. Condit D. J. Condit (S) Ray Conard Rat Conabd Petitioner and Conard knew that Burks was not in a financial position to bear any part of the losses of the store for which he might be held liable. No part of such losses has ever been paid by him. In the final liquidation of Burks, Inc., Conard was required to pay Western Auto Stores $400 more than the $3,600 estimate referred to in the February 19 agreement. He, Conard, spent about 200 hours of working time in liquidating Burks, Inc. The fair market value in 1957 of the 50 shares of stock of The Dorman Co. assigned by petitioner to Conard pursuant to the agreement of February 19, 1957, was $250. Also, pursuant to the February 19,1957, agreement, petitioner made payments on the Boswell note of $1,409.92 in 1957, and, thereafter, monthly payments of $100 each. In his 1957 return, petitioner deducted the payments made on the Boswell note as short-term capital losses and deducted the $6,100 which he had transferred to Conard as part of his interest in the principal amount of the Dorman Co. note and the $500 cost of the Dorman Co. stock in full as losses in connection with a transaction entered into for profit. OPINION The only question in issue here is whether the $6,100 item, representing part of the Dorman Co. note, and the $500 item, representing the cost to petitioner of the 500 shares of the Dorman Co. stock, both of which petitioner assigned to Conard in 1957, in settlement of the obligations of Burks, Inc., are deductible in petitioner’s return for that year. Petitioner alleges in his petition that respondent erred in determining that the loss from these assignments to Conard was reportable as a nonbusiness bad debt rather than an ordinary loss as claimed. Petitioner contends in his brief that the loss is deductible in full under section 165(c) (2) as a loss incurred in a transaction entered into for profit. Respondent contends that petitioner’s losses were nonbusiness bad debt losses or, in the alternative, that the payments in question were capital contributions to Burks, Inc. Section 165(c) (1), (2) permits the deduction of (1) losses incurred in a trade or business; and (2) losses incurred in any transaction entered into for profit, though not connected with a trade or business; * * *. Subsection 166(d) limits the deduction of nonbusiness bad debts by an individual to that allowed on short-term capital loss and (d) (2) defines a nonbusiness bad debt as— (d) Nonbusiness Debts.— * ***** * (2) Nonbusiness debt defined. — For purposes of paragraph (1), the term “nonbusiness debt” means a debt other than— (A) a debt created or acquired (as the case may be) in connection with a trade or business of the taxpayer; or (B) a debt the loss from the worthlessness of which is incurred in the taxpayer’s trade or business. Respondent relies on Putnam v. Commissioner, 352 U.S. 82 (1956), in support of his determination that the assignments to Conard resulted in nonbusiness bad debts. The Putnam case holds that a loss resulting from a payment by a stockholder in satisfaction of his liability as guarantor of the corporation’s note is a nonbusiness bad debt loss deductible as a short-term capital loss. We do not think that the case is applicable here. The amounts in dispute here were not payments made in satisfaction of petitioner’s liability as guarantor of Burks, Inc.’s obligations, but were made to Conard in satisfaction of petitioner’s liability to him for one-half of the losses arising out of the transaction. The total amount of the unpaid guaranteed notes on which petitioner and Conard were jointly liable was $25,800. Petitioner’s one-half of such notes was $12,400 which was the amount of Brookside State Bank and Boswell notes assumed and later paid by petitioner. That left $6,100 of petitioner’s $18,500 liability, the exact amount of the interest of petitioner transferred to Conard in the Dorman Co. note under the agreement of February 19,1957. The $6,100 interest in the Dorman Co. note had been acquired by petitioner as security for a loan by petitioner to the Dorman Co., and petitioner assigned the part interest in the note to Conard, along with the 50 shares of the Dorman Co. stock in part payment of his obligation to pay one-half of the loss on Burks, Inc. (The Dorman Co. held title to the land and building occupied by Burks, Inc. It was not otherwise involved in the liquidation of Burks, Inc.) We think it clear on the record that petitioner, as far as the $6,100 assignment, and the transfer of the Dorman stock was concerned, was not paying off an obligation as a guarantor and that he was not entitled to subrogation. It is our view, therefore, as already stated, that Putnam, supra, is not here applicable.

12521598-9580

Manion, Circuit Judge. Roberto Macias helped move drug money from Chicago to Mexico. At his bench trial, he challenged a drug-conspiracy charge by testifying he thought the cash came from human smuggling, not drug trafficking. But the district judge did not believe him. The judge convicted him and imposed a two-level enhancement under U.S.S.G. § 2D1.1(b)(15)(D) for obstructing justice by testifying falsely. On appeal, Macias argues this enhancement does not apply to a defendant who perjures himself at trial. He also argues the judge failed to find all perjury elements independently and explicitly, as constitutionally required. But Macias waived these challenges, foreclosing appellate review. I. Background A. Crimes Macias helped smuggle illegal immigrants into America in the late 1980s and early 1990s, incurring multiple convictions. Many years later, La Familia Michoacana asked him to help move cash into Mexico, telling him it came from human smuggling, according to his testimony. He agreed. From 2007 to 2009, he arranged for his brother-in-law, Ismael Flores, to make trips from Chicago to Dallas with a total of about $ 10,000,000 bound for Mexico. But La Familia Michoacana is a drug cartel. The cash was drug money. Flores realized this during his first trip given the payload and secret instructions. B. 2012 trial, sentencing, and appeal When Macias faced charges, he testified he thought the cash came from human smuggling, not drugs. But the jury convicted him of conspiring to distribute at least five kilograms of cocaine and of conducting an unlicensed money-transmitting business. The judge sent him to prison for 300 months for the conspiracy concurrent with 60 months for the money transmitting. Macias appealed the conspiracy conviction, challenging the "deliberate indifference" jury instruction. We reversed because the instruction erroneously allowed conviction simply "because he wasn't curious enough to discover the source of the illegal funds." United States v. Macias , 786 F.3d 1060, 1063 (7th Cir. 2015). We remanded for a new trial on the conspiracy charge. We vacated the money-transmitting sentence to allow potential resentencing at a lower guidelines range without the conspiracy conviction. C. 2016 retrial Macias's case was reassigned to Judge Kocoras on remand. Macias consented to a bench trial, which he faced in August 2016. At this retrial, Flores testified he knew the money was drug money. But, again, Macias testified that he did not. He testified a superior in the cabal told him the money came from human smuggling. Macias testified that he believed throughout his involvement that he was in a human-smuggling operation, unconnected with drugs. But the judge did not believe him. The judge convicted Macias of conspiracy to transport cocaine. The judge found "Macias was not a believable witness and his testimony that he was ignorant of the source of the cash transported was implausible, contradicted by other testimony and by his own actions during the course of the drug conspiracy charged and proved ...." (Findings and Conclusions, DE 523 at 10.) The judge found "Macias was untruthful in his testimony in a variety of respects in addition to his claim of ignorance as to the source of the transported cash and was not credible as to any material matter about which he testified ...." (Id. ) Macias moved for judgment of acquittal. But the judge denied that motion, noting "Macias was entirely unworthy of belief." (Ruling, DE 561 at 1.) D. Resentencing The probation office recommended an enhancement under § 2D1.1(b)(15)(D) for obstruction because Macias falsely testified he was ignorant of the cash's true source. In its sentencing memorandum, the government also asked the judge to consider Macias's perjury. Macias did not raise any objection to this enhancement in his sentencing memorandum or objections to the presentence investigation report. At the resentencing hearing, Macias still did not object to this enhancement. The judge listed Macias's challenges: [Judge]: [T]he Guideline calculation is challenged for, one, there is a challenge to the quantity of drugs and the calculation of price and how we got to the ultimate Adjusted Offense Level of 41. And there is a challenge to the leadership enhancement. Those are the challenges, I think, lodged way back when, right? [Defense counsel]: Yes, your honor. [Judge]: All right. Is there anything you want to add to those challenges? [Defense counsel]: Judge, I think the challenges are pretty clearly stated in the papers. (Tr. Sentencing Hr'g, DE 587 at 5-6.) Defense counsel then argued about drug quantities and Macias's lack of authority over Flores, but did not mention obstruction. The judge then asked again for any other challenges: [Judge]: Is there any other factual or legal challenge to anything we have discussed yet- [Defense counsel]: No, your Honor. [Judge]: -based on the reports? [Defense counsel]: No, no, no, not to the report as it is now. * * * [Judge]: But we are all dealing with the calculation that I talked about. [Defense counsel]: No, no, no. No additional objection, Judge. You addressed both- [Judge]: All right. [Defense counsel]: -of the objections. (Id. at 15-16.) The judge then addressed Macias directly: [Judge]: [D]o you think there is any-something is wrong factually in any of these materials? [Macias]: No. The way my attorney explained it, I believe, is correct. (Id. at 16.) During its turn at the resentencing hearing, the government called Macias a liar: [Prosecutor]: One thing that has changed since the last time he was before Judge Bucklo is that he got up on that witness stand over there (indicating), to my left, and he lied through his teeth to your Honor. This was a bench trial. He had lied to Judge Bucklo, contending that he was nothing more than a dupe; somebody who thought that the money that was being generated, that he was transporting, came from human smuggling-which was, frankly, an absurd idea, but one that he pursued not once, but twice. He did not accept responsibility before this Court for the injury that he has caused in this district; and, rather, tried to make light of it by concocting a silly defense to the charge. (Id. at 18.) The government sought a sentence of 360 months. Defense counsel then argued about the level of Macias's culpability, explained Macias's decision to go to trial, and bemoaned what he called "a penalty imposed for testifying": [Defense counsel]: So, he made a decision to challenge it and present a defense at trial. He did do that. And there is a penalty imposed for testifying. If you-I always think this is kind of a weird penalty, practically speaking, Judge, because if you-get the fortune to have a jury that finds reasonable doubt or a judge that finds reasonable doubt, you don't get guilt. And if you do-if you don't then you do. And I don't know how helpful the enhancement is. I think it generally probably chills people from trying to present a defense; but, regardless of that, he gets the penalty for that. That is part of this, in terms of his Guideline range. But under the practical reality of his situation, I don't think he should be heavily punished for deciding to defend himself against the case, in the best way he could, under the circumstances. Because the Sentencing Guidelines put him in a box that is very difficult for a defendant to manage-when you are looking at those kind of numbers-or a lawyer. It is difficult to decide what your best strategy is and what you can do. They tie your hands significantly. And he made the decision to defend his case and we defended it the best we could. And I don't think he should be heavily punished for making that decision. (Id. at 23-24.) Again, defense counsel did not object to the obstruction enhancement. Instead, he begrudgingly acknowledged Macias "gets the penalty for that." Defense counsel presented a wide variety of detailed mitigation arguments. But he never objected to the obstruction enhancement. He never argued it does not apply or the perjury elements were not satisfied. He asked for a sentence of between 180 to 240 months. Then Macias spoke. He admitted a degree of guilt: "I always knew that what I was doing was illegal and wrong, even if I did not know all of the details about what the people I was working with were doing." (Id. at 34.) He echoed his counsel. He talked about consequences, plans, and hopes. He apologized. He did not challenge the obstruction enhancement. The judge then explained his reasoning. He praised defense counsel several times: "a very, very able advocate ... one of the better ones I have seen." (Id. at 38.) The judge imposed a sentence of 240 months for the drug conspiracy concurrent with 60 months for the money transmitting. Macias appeals. II. Analysis Macias argues § 2D1.1(b)(15)(D) does not apply to a defendant who perjures himself at his trial. In the alternative, he argues the judge failed to find all perjury elements independently and explicitly, as required by United States v. Dunnigan , 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), for a perjury enhancement to be constitutional. But Macias waived these challenges. Waiver forecloses appellate review. United States v. Walton , 255 F.3d 437, 441 (7th Cir. 2001). We generally will not force on a party a waivable position he chose not to take, and will not entertain arguments a party chose not to develop below, even if he changes his mind on appeal. Id. In our adversary system, a party may have many strategic reasons to drop a viable claim.

7398361-3917

MEMORANDUM JOHN LEWIS SMITH, Jr., District Judge. Currently before the Court is defendants’ motion to strike plaintiff’s demand for a jury trial on her claim that defendants discharged her from her position as general manager of the House of Representatives Restaurant System, in violation of her fifth amendment right against discrimination on the basis of her sex. It has previously been established by the Court of Appeals that plaintiff has indeed stated a viable claim for damages against the defendants which can be presented directly under the fifth amendment. See Walker v. Jones, 733 F.2d 923, 933 (D.C.Cir.1984). In addition to plaintiff’s prayer in her complaint demanding $1,000,000 compensatory damages, and $3,000,000 punitive damages, she requested equitable relief in the form of, inter alia, back pay and reinstatement to her former position. In support of their motion to strike plaintiff’s demand for a jury trial, defendants contend that because plaintiff’s fifth amendment sex discrimination claim is essentially patterned under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17 , she is restricted to a bench trial on all of her claims, both legal and equitable. The Court disagrees. The parties are in agreement that there is no right to a jury trial in Title VII actions. See Saad v. Burns International Security Services, Inc., 456 F.Supp. 33, 37 (D.D.C.1978). They further agree that claims which are equitable in nature are properly triable by the court. They part company however in regard to defendant’s contention that because plaintiff’s sex discrimination action is similar to a Title VII action, she, like a Title VII litigant, is restricted to a bench trial on all of her claims. The Court finds that notwithstanding any resemblance between plaintiffs fifth amendment action and an action which might otherwise have been brought under Title VII, she is entitled to a jury trial on her claims for compensatory and punitive damages. Any similarities between the remedies sought by plaintiff here, and the equitable remedies available under Title VII, end with plaintiffs prayer for legal relief in the form of damages. The various forms of relief available under Title VII, e.g., reinstatement, awarding of backpay, etc., are exclusively equitable remedies to be determined through the exercise of the Court’s discretion, and not by a jury. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir.1969); see also Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 375, 99 S.Ct. 2345, 2350, 60 L.Ed.2d 957 (1979). Where equitable claims for relief are combined with legal claims however, the parties have a right to a jury trial on the legal claims: If the action is properly viewed as one for damages only, our conclusion that this is a legal claim obviously requires a jury on demand. And if this legal claim is joined with an equitable claim, the right to a jury trial on the legal claim, including all issues common to both claims, remains intact. Curtis v. Loether, 415 U.S. 189, 196 n. 11, 94 S.Ct. 1005, 1009 n. 11, 39 L.Ed.2d 260 (1973). See also Saad v. Burns International Security Services, Inc., supra, 456 F.Supp. at 37; Hybki v. Alexander & Alexander, 536 F.Supp. 483, 484 (D.C. Mo. 1982). Although the principle that legal claims are triable before a jury seems to be axiomatic, defendants cite a number of cases in support of their deprecation that “a jury trial here would be reversible error.” Defndts’ Reply in Support of Mot. Strike Jury Demand at 7. The Court has read each of defendants’ cited authorities in this respect and has found that in every one of these cases, the courts’ rulings distinguished, in no uncertain terms, that a jury trial of equitable claims for back pay was error. See, e.g., Harkless v. Sweeny Independent School District, 427 F.2d 319, 324 (5th Cir.1970), noting:

841955-10597

MEMORANDUM AND ORDER KAZEN, Chief Judge. Pending before the Court are the Motion for Summary Judgment of Defendants Ban-corp Group, Inc. (“Bancorp”) and Andy Ba-ratta (Dckt. No. 7) and other associated motions. 1. Factual Background This case arises out of two leases of security equipment, cameras, and recorders. Plaintiffs Roberto Garza and his wife, Lydia Garza, are owners of two stores, Heights Meat Market and Variety Meats and Groceries, in Laredo, Texas. In the summer of 1994, Plaintiffs sought to lease security equipment for use in their two family-owned and -operated groceries. A representative of Silent Partner, Inc. (“SPI”), which supplies security equipment, informed Roberto Garza that the two leases would be lease-purchase agreements which would give him an option to purchase the equipment at the end of the lease term. Roberto Garza accepted the equipment, and on July 7,1994, he signed the two leases in his capacity as owner of the two groceries. On July 18, 1994, the vice president of Bancorp signed and accepted the leases on behalf of Bancorp. Bancorp had purchased the equipment from SPI and was thus the lessor. Roberto Garza later ceased paying the monthly installments payable under the leases prior to the expiration of their primary terms. Contrary to the statements of the SPI representative in Laredo, the leases do not contain an option to purchase the security equipment at the end of the lease terms. With Bancorp’s authorization, Andy Baratta, a Collection Manager at Bancorp, engaged in a pattern of harassing telephone calls to Plaintiffs and their children in an attempt to collect the outstanding payments under the lease. Bancorp also filed suit in Michigan state court against Roberto Garza for breach of the leases and obtained two default judgments. Plaintiffs then filed suit in Texas state court. Plaintiffs allege that Defendants’ conduct in seeking to collect the debt violated the federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.A. §§ 1692-16920 (West 1982 & Supp.1996), and the Texas Debt Collection Practices Act (“TDCPA”), Tex.Rev.Civ.Stat.Ann. art. 5069-11.01-.12 (West 1987 & Supp.1997). Plaintiffs also allege that Defendants violated several provisions of the Texas Deceptive Trade Practices Act (“DTPA”), Tex.Bus. & Com.Code Ann. §§ 17.01-854 (West 1987 & Supp.1997). These violations arise out of the misrepresentations by the SPI representative in Laredo that the leases would contain an option to purchase at the end of the lease term and that SPI was the supplier and lessor of the leased equipment. Plaintiffs allege that Bancorp committed these violations both directly and through its alleged agent or representative, SPI. Bancorp removed this to case to federal court, answered, and made counterclaims. Leave was later granted for Plaintiffs to amend their complaint to add SPI as a defendant. II. Standard of Review Federal Rule of Civil Procedure 56(c) provides that summary judgement “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgement as a matter of law.” The party moving for summary judgement must initially demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). This showing can be made by relying on discovery material or the pleadings or by “pointing out to the district court [ ] that there is an absence of evidence to support the nonmoving party’s ease.” Id. at 325, 106 S.Ct. at 2554. If the movant meets its burden, the nonmovant cannot simply rest on its pleadings but must identify specific facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. “This burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075 (citations omitted) (internal quotation marks omitted). Summary judgment is appropriate “where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.” Id. (quoting Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir.1993)). In scrutinizing the eviden-tiary record, “the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. III. FDCPA and TDCPA Claims Defendants contend that the FDCPA and TDCPA do not apply to the leases because they are commercial transactions. The FDCPA defines a debt as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” 15 U.S.C.A. § 1692a(5) (emphasis added). The TDCPA defines a debt as “any obligation or alleged obligation arising out of a consumer transaction.” Tex.Rev. Civ.Stat.Ann.art. 5069-11.01(a). It defines a consumer as “an individual who owes or allegedly owes a debt created primarily for personal, family, or household purposes,” id. art. 5069-11.01(d), and a consumer transaction is defined as “a transaction in which one or more of the parties is a consumer,” id. art. 5069-11.01(e). Plaintiffs state that they sought the security equipment from Bancorp and SPI “for the primary purpose of protecting ourselves and our family.” Amended Affidavit of Roberto Garza ¶ 3. The fully executed lease agreements, however, provide that “Lessee also agrees that the Equipment will not be used for personal, family, or household purposes.” The evidence shows that the equipment was installed at two stores owned by Roberto Garza, Heights Meat Market # 1 and Variety Meats and Groceries. Even assuming that Plaintiffs obtained the security equipment for the purpose of protecting themselves and their family, nevertheless they clearly used the equipment for business purposes. The equipment was installed at two commercial establishments. That the equipment was intended to provide security to family members working at the stores does not transform the purpose into a noncommercial one. The security equipment at any business provides personal protection to those who work there. The reach of the FDCPA and the TDCPA does not extend to the debts of family-owned businesses that are incurred for business purposes. Therefore, summary judgment is granted in favor of both Defendants as to Plaintiffs’ FDCPA and TDCPA claims. IV. DTPA § 17.46(b) (22) Plaintiffs allege that Defendants violated the DTPA, Tex.Bus. & Com.Code Ann. § 17.46(b)(22), by filing suit in Michigan on the leases. Section 17.46 includes filing suit founded upon a written contractual obligation of and signed by the defendant to pay money arising out of or based on a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household, or agricultural use in any county other than the county in which the defendant resides at the time of the commencement of the action or in any county in which the defendant in fact signed the contract in its definition of “false, misleading or deceptive acts or practices.” Id. (emphasis added). For the reasons stated in the preceding section, summary judgment is granted in favor of both Defendants as to Plaintiffs’ cause of action under DTPA § 17.46(b)(22) because the goods were not leased for personal, family, household, or agricultural use. V. DTPA Claims Against Andy Baratta Plaintiffs bring their remaining DTPA claims against both Andy Baratta and Bancorp itself. There is no evidence, however, that Baratta was personally involved in or authorized any of the conduct giving rise to these claims. Although, as detailed below, the Court requests supplemental briefing on legal issues surrounding Plaintiffs’ remaining DTPA claims against Bancorp, summary judgment in favor of Baratta on these claims is granted. VI.Conclusion For reasons stated, Defendants’ motion for summary judgment is GRANTED in part. Defendants’ motions to strike are DENIED to the extent discussed in this memorandum opinion. Defendants’ motion to dismiss Plaintiffs’ FDCPA claim is DENIED as moot. The Court finds that the briefing on two issues is insufficient. Bancorp is ORDERED to further brief the issue of whether the default judgments obtained against Plaintiffs in Michigan state court are res judicata or collateral estoppel as to Plaintiffs’ claims in the instant case and which jurisdiction’s law controls that issue. If Bancorp maintains that the law of Michigan controls, then it should discuss whether Sahn v. Estate of Brisson, 43 Mich.App. 666, 204 N.W.2d 692 (1972), upon which Bancorp relies in its supplement to its motion for summary judgment, is still good law in light of later amendments to what is now Michigan Court Rule 2.203(A) and subsequent Michigan precedent. Bancorp is also ORDERED to brief the issue of whether the provisions of the lease agreement are valid and binding on Plaintiffs, regardless of any prior or contemporaneous representations that might have been made by Bancorp and/or its alleged agent, SPI, contrary to the agreements’ terms. In other words, can invocation of the DTPA overcome the express written language that the lease agreement controls over any prior oral representations or agreements? Bancorp is ORDERED to file its brief by January 8, 1997. Plaintiffs and SPI shall have ten days from the date on which they are served with Bancorp’s brief in which to file their response. . The other motions are Defendants’ Motion to Strike and Objections to Plaintiffs’ Affidavits ("Motion to Strike I") (Dckt. No. 19), Defendants' Motion to Strike and Objections to Plaintiffs' Amended Affidavits ("Motion to Strike II") (Dckt. No. 28), and Defendants’ Motion to Dismiss Plaintiffs’ Federal Fair Debt Collection Practices Act Claim (Dckt. No. 21). . In stating the factual background, the Court applies the summary judgment standards that "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986), and that factual controversies are to be resolved in favor of the nonmoving party, Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (per curiam).

576787-19417

MEMORANDUM AND ORDER ALLEN SHARP, Chief Judge. Both of the abovementioned petitioners are seeking a writ of habeas corpus pursuant to a CAB hearing and the resulting disciplinary action from that hearing. The return in each case was filed on April 6, 1993, and complies with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). Petitioner Nance filed a Traverse to the Return on June 25, 1993, and an elaborate 23-page memorandum with supporting affidavits and materials which is quite lawyerlike in form and substance. Petitioner Ping filed a Traverse on June 29, 1993, which is equally lawyerlike. The court compliments these two pro se petitioners on the legal quality of their presentation to this court. When a complaint is fashioned as a petition under 28 U.S.C. § 2254 with regard to the Conduct Adjustment Board (CAB) proceedings, this court is compelled to hear those claims. Hamilton v. O’Leary, 976 F.2d 341 (7th Cir.1992), Forbes v. Trigg, 976 F.2d 308 (7th Cir.1992), Miller v. Duckworth, 963 F.2d 1002 (7th Cir.1992), and Harris v. Duckworth, 909 F.2d 1057 (7th Cir.1990). See also Billops v. Wright, 803 F.Supp. 1439 (N.D.Ind.1992). This court consolidated the abovecaptioned matters because of the common issues of law and fact. Both petitioners were confined at the Branchville Training Center in Tell City, Indiana. In the respective Conduct Reports, both petitioners are charged with battery, a violation of state law. Both Conduct Reports also contain a Report of Investigation of Incident. Both Conduct Reports charge that on December 21,1991, the petitioners, Ping and Nance, cut another inmate, Steven West, with a sharp object, causing a laceration approximately four inches long and an inch deep. It is also indicated that the events preceding the battery occurred in the recreational room and the actual battery occurred while the victim was in the restroom. The various exhibits reveal that each petitioner had a lay advocate. Additionally, each petitioner made a statement exculpatory in nature to the CAB. In each case, the CAB found the respective petitioner guilty of battery. In so doing, the CAB indicated: The CAB has reviewed the evidence including the Conduct Report[,] Offender’s Statement, Investigative Report and Lay Advocate’s [Statement. The CAB does not believe the offender’s version and believes the investigator’s] summary accurately describes the incident. See Memorandum in Support of Return to Order to Show Cause at 3 (for both petitioners). The CAB recommended sanctions of a year’s disciplinary segregation, transfer to a more secure facility, demotion in time-earning class from credit class I to credit class III, and loss of 300 days’ earned credit time for petitioner Ping. The CAB recommended the same sanctions for petitioner Nance except for the demotion in time-earning class. Both petitioners pursued an appeal as outlined in the Disciplinary Hearing Appeal. Petitioner Ping appealed and argued “that he was denied a written copy of the CAB’s findings of fact, that he and Offender Ronald Nance had both been found guilty of the same offense although [the victim] had been cut only once, and that he could not have cut [the victim] on the left side because he is right-handed.” Id. In his appeal, petitioner Nance argued that he and Ping were both found guilty of the same offense although [the victim] had been cut only once, that he was refused the lay advocate of his choice and that [the actual lay advocate with responsibility for the hearing] had been given only fifteen minutes’ notice that he would represent [the petitioner], that there was no evidence at the hearing that could be used to convict him of anything, that he was not allowed to see the information the CAB relied upon in finding him guilty, that the Disciplinary Hearing Report reflected the wrong date of the hearing and thus was a decision made before hearing the evidence, and that the report contained neither a statement of the findings of fact nor a recitation of the evidence relied upon. Id. at 4. Both appeals were denied. Finally, this court notes that petitioner Ping also filed a Petition for Restoration of Time, which was also denied. I. Here, in both of the abovecaptioned cases, the Attorney General of Indiana argues that both petitioners have procedurally defaulted on their respective claims. Recently, in Markham v. Clark, 978 F.2d 993 (7th Cir.1992), the Seventh Circuit made it clear that it is incumbent upon a petitioner challenging a CAB proceeding to demonstrate exhaustion of available administrative remedies. Here, the Attorney General of Indiana has very persuasively extended the holding of Markham to procedural default. The petitioners have also made very persuasive arguments on this issue. In Markham, the Seventh Circuit evaluated the issue of exhaustion in the context of a CAB healing. The § 2254 petitioner indicated that in evaluating certain disciplinary infractions, the CAB denied his constitutional due process rights. Apparently, in so doing, the CAB eliminated the petitioner’s accrued good time credit and lengthened his sentence by 243 days. In Markham, the Seventh Circuit, speaking through Judge Posner, indicated that it is axiomatic to federal habeas corpus relief that the petitioner exhaust any available state remedies, before a federal court will review the claim. The Markham court indicated that “[t]here are two questions: whether a state prisoner is required to exhaust state administrative as well as judicial remedies, and what happens if he fails to do so.” Id. at 994. On these questions, the Markham court explained: We do not think “courts” in section 2254(b) should be interpreted as being limited to tribunals presided over by persons who are called judges and wear robes. We think the term as it appears in this statute should be read to embrace any tribunal that provides available and effective corrective process____ How states carve up adjudicative functions between courts and agencies is in general and in this particular no business of the federal courts, for the Constitution does not prescribe any particular allocation or separation of powers among the states____ If one state wants to use an administrative body where another state would use a conventional “court,” its choice is a matter of indifference from the standpoint of the principles of federalism and comity that underlie section 2254(d). Federal prisoners are required (by judicial rule, not statute) to exhaust their administrative remedies before they can seek relief under the federal prisoner’s habeas corpus surrogate, 28 U.S.C. § 2255____ The case for exhaustion of administrative remedies by state prisoners is stronger. Federal courts should not intrude into the relations between a state and its convicted criminals until the state has had a chance to correct its own mistakes. Indiana has established a corrective process for prisoners aggrieved by disciplinary sanctions; we hold that prisoners must use it before turning to the federal courts. Our conclusion is reinforced by 28 U.S.C. § 2254(e), which provides that ‘an applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of [section 2254(b) ], if he had the right under the law of the State to raise, by any available procedure, the question presented.’ There is no limitation to judicial procedure. Id. at 995. (emphasis supplied) (citations omitted). Here, the Attorney General argues that by making the exhaustion doctrine applicable in cases of this ilk, then the procedural default analysis must be applied as well. Specifically, the Attorney General maintains that in the abovecaptioned matters, both petitioners have appealed the CAB decisions through the prison administrative system. Apparently, the petitioners pursued certain issues on the administrative level that are different from the issues contained in their petitions here. Next, the Attorney General maintains that the petitioners are only granted one opportunity to pursue their claims on the administrative level and are barred from another opportunity to pursue such administrative remedies. The petitioners did not assert the issues in this petition at the applicable administrative level, and cannot return to the administrative level with these same claims. Therefore, the Attorney General argues that the claims are procedurally defaulted. The petitioners concede that the logical extension of Markham is the application of procedural default to cases of this ilk. Here, the petitioners also point out some very important and fundamental differences between the state court system and the administrative review procedures for CAB hearings. The petitioners argue that these differences make procedural default untenable for purposes of the CAB hearing, the administrative process, and § 2254. The petitioners also argue that assuming arguendo that there is a procedural default issue, then there is cause and prejudice for their procedural default. This court must commend the Indiana Attorney General on this very cogent and refined application of habeas concepts in this area. This court is equally impressed with the response of the petitioners on this issue. This is undoubtedly an issue of first impression. This court notes that there are many similarities between a § 2254 action premised on a CAB finding and an action pursuant to a state criminal trial. There are, however, some very fundamental problems in the application of cause and prejudice and the comparison becomes very convoluted. In evaluating the polemics of this issue, this court has revisited the decision in Harris v. Duckworth, 909 F.2d 1057 (7th Cir.1990), and the opinion of the Indiana Supreme Court in Hasty v. Broglin, 531 N.E.2d 200 (Ind.1988). This court also notes the discussion of an important facet of this issue in Forbes v. Trigg, 976 F.2d 308 (7th Cir.1992). In Forbes, the Seventh Circuit, speaking through Chief Judge Bauer, revisited the historical foundation and antecedent for the decision in Markham, supra: Finally, [the petitioner] argues that the Fourteenth Amendment requires Indiana to provide judicial review of state prisoners’ federal constitutional claims. The Indiana Supreme Court has held that Indiana courts do not have jurisdiction to hear such claims. See Hasty v. Broglin, 531 N.E.2d 200 (Ind.1988); Bates v. State, 426 N.E.2d 404 (Ind.1981); Riner v. Raines, 274 Ind. 113, 409 N.E.2d 575 (1980). The United States Supreme Court has twice granted certiorari on the question of whether the Due Process Clause requires state judicial review of federal constitutional claims. See Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1984); Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1964). In both cases, the Court declined to decide the issue. We also decline. Although this is a significant question, and some state courts and at least one district court have reviewed it, see, e.g., Richardson v. Miller, 716 F.Supp. 1246, 1257-60 (W.D.Mo.1989) (thoroughly reviewing issue); Prock v. District Court of Pittsburg County, 630 P.2d 772 (Okla.1981), we do not believe we should decide this issue in a case where a prisoner has been accorded a judicial forum, albeit a federal one, in which to raise his claims. We also note that our decisions in Miller v. Duckworth, 963 F.2d 1002 (7th Cir.1992), and Harris v. Duckworth, 909 F.2d 1057, 1058 (7th Cir. 1990), bind our decision on this claim. Thus we leave further resolution of this issue for the Supreme Court, if that Court chooses to address it. Id. Although the issue presented here is not completely congruent with the issue discussed in Forbes, the issues presented in Markham require this court to seek answers to many of the same questions outlined in Forbes. Therefore, this court will not resolve this important issue at this time. In light of the posture of this case and the constitutional issues presented by the petitioners here, this court will address the alleged constitutional violations as outlined by the petitioners in their respective § 2254 actions. II. Most of the petitioners’ claims are arguably based on the content and integrity of the evidence. This court reviews CAB hearings of this ilk for compliance with the constitutional mandates of Supt., Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Initially, this court notes that in Pardo v. Hosier, 946 F.2d 1278, 1280-81 (7th Cir.1991), the Seventh Circuit, speaking through Judge Wood, explained the necessary considerations surrounding a claim of this nature: In evaluating constitutional claims of prisoners, we must balance the need to protect prisoners’ procedural rights against the need for prison safety and security. Redding v. Fairman, 717 F.2d 1105, 1112 (7th Cir.1983), cert. denied, 465 U.S. 1025 [104 S.Ct. 1282, 79 L.Ed.2d 685] (1984). In prison disciplinary proceedings, “prison administrators must be ‘accorded wide-ranging deference in the ... execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’” Mathews v. Fairman, 779 F.2d 409, 415 (7th Cir.1985) (quoting Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1879, 60 L.Ed.2d 447 (1979)). Id. The holding in Pardo is especially applicable to the situation at issue here. In Rasheed-Bey v. Duckworth, 969 F.2d 357 (7th Cir.1992), the Seventh Circuit, speaking through Judge Esehbach, revisited the due process requirements for a CAB hearing: The requirements imposed by the Due Process Clause are “flexible and variable dependent upon the particular situation being examined.” Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983). We “cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.” Wolff v. McDonnell, 418 U.S. 539, 560, 94 S.Ct. 2963, 2977, 41 L.Ed.2d 935 (1974). Nonetheless, “a prisoner is not wholly stripped of constitutional protection when he is imprisoned for a crime. There is no iron curtain drawn between the Constitution and the prisons of this country.” Id. at 555-56, 94 S.Ct. at 2974. Accordingly, in considering the command of the Due Process Clause in light of the peculiar exigencies of the prison setting, the Supreme Court has held that an inmate, while not entitled to the full panoply of due process rights accorded to free citizens, is entitled to fundamental protection from the arbitrary action of government. Wolff, 418 U.S. at 556-58, 94 S.Ct. at 2974-76; Hewitt, 459 U.S. at 472, 103 S.Ct. at 871. Beginning with Wolff, the Supreme Court established the minimum requirements of procedural due process to be afforded to prisoners in disciplinary proceedings. Before being deprived of a protected liberty interest, a prisoner is entitled to (1) advance (at least 24 hours before hearing) -written notice of the claimed violation; (2) the opportunity to be heard before an impartial decision maker; (3) the opportunity to call witnesses and present documentary evidence (when consistent with institutional safety); and (4) a written statement by the fact-finder of the evidence relied on and the reasons for the disciplinary action. Superintendent Mass. Corr. Inst. v. Hill, 472 U.S. 445 [453-54], 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985); Wolff v. McDonnell, 418 U.S. 539, 563-67, 94 S.Ct. 2963, 2978-80, 41 L.Ed.2d 935 (1974). Inmates have no right to confront and cross examine adverse witnesses; thus, a disciplinary board’s decision is not limited to evidence presented at the hearing. Baxter v. Palmigiano, 425 U.S. 308, 322-23, 96 S.Ct. 1551, 1560, 47 L.Ed.2d 810 (1976). Furthermore, this court has held that an inmate is also entitled to disclosure of exculpatory evidence, unless that disclosure would unduly threaten institutional concerns. Mendoza v. Miller, 779 F.2d 1287 (7th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2251, 90 L.Ed.2d 697 (1986); Dawson v. Smith, 719 F.2d 896, 898-99 (7th Cir.1983). If such information is to remain confidential, it must be supported by some indication of reliability. Mendoza, 779 F.2d at 1295 (citations omitted). Id. Here, insofar at the petitioners center on issues surrounding the sufficiency of the evidence, this court notes the relevant language of Supt., Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). In order to protect due process rights in the context of a prison disciplinary proceedings, the Supreme Court in Supt., Mass. Corr. Institution at Walpole, outlined and explained the requisite standards for evaluating the proceedings: We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced----” Ascertaining whether this standard is satisfied does not require the examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. Id. at 455-56, 105 S.Ct. at 2774 (citations omitted). In Culbert v. Young, 834 F.2d 624, 631 (7th Cir.1987), the Seventh Circuit, speaking through Judge Ripple, explained: the kind of statements that will satisfy the constitutional minimum will vary from case to case depending on the severity of the charges and the complexity of the factual circumstances and proof offered by both sides, see Saenz v. Young, 811 F.2d 1172 (7th Cir.1987). The Constitution does not require that the evidence relied upon logically preclude any conclusion but the one reached by the disciplinary board ... Id. It needs to be emphasized that this court does not sit as a trial de novo with regard to prison disciplinary proceedings, rather it sits to determine whether there were constitutional errors in those proceedings. Here, the CAB followed the requisite procedures. It is also basic that federal question jurisdiction under 28 U.S.C. § 2254 cannot be bottomed solely on an effort to require state officials to comport their conduct to state law and regulations. The focus must be on constitutional claims. Bell v. Duckworth, 861 F.2d 169 (7th Cir.1988), cert. den., 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989). Neither is it the proper function of this court under the mandate of Supt., Mass. Corr. Institution, 472 U.S. at 445, 105 S.Ct. at 2769, to reweigh conflicting evidence and to make credibility determinations. See Viens v. Daniels, 871 F.2d 1328 (7th Cir.1989). In both of the abovecaptioned matters, the CAB made confidential documents a part of the record and this is perhaps the key to the entire case. It is important to revisit the requirements of Wells v. Israel, 854 F.2d 995 (7th Cir.1988), with reference to the proper procedures for CAB consideration of confidential documents. In Wells, the Seventh Circuit, speaking through Judge Manion, thoroughly evaluated the abovementioned process:

3704209-8458

HAYNES, Circuit Judge: Defendant Clifford Clayton appeals from the district court’s entry of a final order of garnishment against the New Orleans Baton Rouge Steamship Pilots Association (“NOBRA”) to collect on the restitution that Clayton was ordered to pay to the Internal Revenue Service (“IRS”) as part of his federal criminal sentence. Along with other provisions not appealed, the garnishment order in dispute required NOBRA to pay the United States all of Clayton’s monthly retirement benefits until Clayton’s restitution obligation was extinguished. Clayton argued that the government is precluded from garnishing more than twenty-five percent of his earnings pursuant to § 303 of the Consumer Credit Protection Act (“CCPA”), 15 U.S.C. § 1673. The district court concluded that the CCPA’s garnishment limitation is inapplicable to Clayton’s restitution debt to the IRS because it is a tax debt. We agree and therefore AFFIRM. Clayton’s briefing in this case also makes arguments concerning the underlying criminal sentence, a judgment from which he filed no notice of appeal. We are without jurisdiction to consider those arguments. See, e.g., Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992); see also Fed. R.App. P. 3. That portion of his appeal is DISMISSED. I. Facts & Procedural History On March 19, 2008, Clayton pleaded guilty to three misdemeanor counts of failing to file federal income tax returns in violation of 26 U.S.C. § 7203 subject to a plea agreement with the United States. In the factual basis proffered for Clayton’s plea, he admitted that he failed to file income tax returns for calendar years 1999, 2000, and 2001, and that he was required to pay a total of $608,727 in taxes for those three years. On March 4, 2009, Clayton was sentenced to eighteen months’ imprisonment, one year of supervised release, and criminal monetary penalties in the form of a $75 mandatory assessment and $608,727 in restitution due to the IRS. The restitution portion of Clayton’s sentence required him to pay $75,000 by April 3, 2009, and to pay $5,000 monthly toward any unpaid balance upon his release from prison. The district court entered, the judgment on the docket on March 6, 2009. Clayton never filed an appeal from that judgment and made the initial $75,000 payment required by the order. Two months later, after Clayton reported to federal prison, the United States applied to the district court for a writ of garnishment to NOBRA pursuant to the garnishment provision of the Federal Debt Collection Procedures Act (“FDCPA”), 28 U.S.C. § 3205. The district court granted the application and issued the writ. NO-BRA filed an answer with the district court as required by statute and then amended its answer to provide more detail about the nature of the various payments it anticipated making to Clayton. In its amended answer, NOBRA explained that it owed Clayton several different kinds of regular but short-term payments related to Clayton’s retirement as a riverboat pilot, including accrued unused leave and his final pay. NOBRA also owed Clayton monthly payments of between $15,000 and $16,000 for life, which it described as half-pay inactive status benefits. The United States characterizes these payments as Clayton’s “retirement benefits.” In briefing to the district court, the United States sought all of Clayton’s retirement benefits — that is, the entirety of the half-pay inactive status payments' — but only twenty-five percent of his other payments from NOBRA. Clayton and the United States argued several reasons for limiting or expanding the amount of permissible garnishment. The district court determined that the most appropriate solution was the simplest: a much more simple reason exists to allow the full garnishment of [Clayton’s half-pay inactive status] benefits. Specifically, § 1673(b) of the CCPA — which provides exceptions to the exemptions enumerated in subsection (a), including the “earnings” ex[em]ption — specifically indicates that “[t]he restrictions of subsection (a) of this section do not apply in the case of ... (C) any debt due for any State or Federal tax.” United States v. Clayton, 646 F.Supp.2d 827, 838 (E.D.La.2009) (third and fourth alterations in original). The district court thus entered a final order of garnishment to NOBRA directing it to pay over all of Clayton’s half-pay inactive status benefits to the United States. Clayton timely appealed. II. Standard of Review Neither party has briefed the standard of review for a garnishment order issued pursuant to the FDCPA, nor does any precedential decision of this court state the standard. Informed by the standard applied to garnishment orders in private litigation, we follow the lead of an unpublished decision of this court in concluding that an abuse of discretion standard applies. See Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417, 425 (5th Cir. 2006) (reviewing garnishment order issued in private litigation for abuse of discretion); United States v. Seymour, 275 Fed. Appx. 278, 280 (5th Cir.2008) (unpublished) (applying Af-Cap standard of review in appeal of FDCPA garnishment order entered, as here, to collect a criminal restitution judgment). As we explained in AfCap, a district court necessarily abuses its discretion if its conclusion is based on an erroneous determination of the law. This Court reviews questions of law de novo. It should be noted, however, that a trial court’s issuance of a [garnishment] order, even if predicated on an erroneous conclusion of law, will not be reversed for abuse of discretion if the judgment is sustainable for any reason. 462 F.3d at 426 (citations omitted). There is no dispute that the controlling issue here is one of statutory interpretation, a question of law that we review de novo. See id.; see also, e.g., Curr-Spec Partners, L.P. v. Comm’r, 579 F.3d 391, 394 (5th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 3321, - L.Ed.2d - (U.S.2010). III. Discussion The United States is authorized to enforce any restitution order imposed as part of a criminal sentence by using its powers under the FDCPA. See 18 U.S.C. § 3664(m)(l)(A) (2006); 18 U.S.C. § 3613(a), (f) (2006); see also United States v. Phillips, 303 F.3d 548, 550-51 (5th Cir.2002) (explaining the statutory scheme in detail). The FDCPA in turn authorizes the government to garnish property “in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment.” 28 U.S.C. § 3205(a) (2006). However, the government’s power to collect restitution in general is expressly made subject to the restrictions on garnishment of section 303 of the Consumer Credit Protection Act (“CCPA”), 15 U.S.C. § 1673 (2006). See 18 U.S.C. § 3613(a)(3). The principal restriction imposed by the CCPA is that garnishment of an individual’s disposable earnings is limited to twenty-five percent of the debtor’s weekly earnings. 15 U.S.C. § 1673(a)(1). Clayton argues that this restriction applies here to limit the garnishment of his half-pay inactive status benefits. The United States contends that 15 U.S.C. § 1673(b)(1)(C) expressly removes the garnishment order obtained here from the protection of the CCPA altogether: that subsection provides that, without qualification or exception, “[t]he restrictions of subsection (a) do not apply in the case of ... (C) any debt due for any State or Federal tax.” 15 U.S.C. § 1673(b)(1)(C). The question then becomes whether the restitution order constitutes a debt “due for any Federal tax.” We agree with the government that the unequivocal plain language of 15 U.S.C. § 1673(b)(1)(C) operates to eliminate the twenty-five percent garnishment limit as to this order. While no state or federal court has apparently ever addressed this provision before, “[w]hen the plain language of a statute is unambiguous and does not lead to an absurd result, our inquiry begins and ends with the plain meaning of that language.” United States v. Dison, 573 F.3d 204, 207 (5th Cir.2009) (quotation marks omitted). The CCPA uses the modifier “any” in describing the tax debts to which it applies, a term we must construe as “broad” and “ ‘halving] an expansive meaning.’ ” See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 219, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) (quoting United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997)).

3769319-25596

DECISION AND ORDER LAGUEUX, Senior District Judge. The antecedents of this dispute date back to 1971, when a group of juvenile inmates of Rhode Island’s Boys’ Training School sued the state officials who ran the School under 42 U.S.C. § 1983 in an effort to improve the conditions of their confinement at that facility. In 1972, Plaintiffs, a changing group of boys incarcerated at the correctional facility, were certified as a class by Judge Raymond Pettine of this Court. In 1973, the parties entered into a Consent Decree which addressed Plaintiffs’ concerns including overcrowding, a deteriorated and inadequate physical plant, insufficient staffing, and inadequate academic, vocational and physical education programs. A Special Master was appointed by Judge Pettine to oversee compliance with the Consent Decree. Because Plaintiffs were identified as the prevailing party, attorneys’ fees were awarded pursuant to 42 U.S.C. § 1988. Since that time, attorneys’ fees have been paid by the state officials from the public fisc on an ongoing basis as continued advocacy has been necessary to ensure compliance with the original Consent Decree, and to update the Decree in order to address new and additional problems. In 2000 after the case was assigned to this writer, the American Civil Liberties Union Foundation (“ACLU”) entered the case on behalf of the Plaintiffs, with a local cooperating attorney working with the support and assistance of an attorney from the organization’s National Prison Project. Soon thereafter, the Rhode Island Department- of Children, Youth and Families (“DCYF”) which operates the Training School, altered its practice of paying attorneys’ fees to Plaintiffs on the advice of the Attorney General because of concerns over prohibitions against the payment of legal fees to non-lawyers. From 2002 to 2004, the fees were paid into an ACLU escrow account. Since 2004, payment of the fees has been withheld, although awarded by the Court. In response, the ACLU and its local affiliate, American Civil Liberties Union Foundation Rhode Island (“ACLU-RI”), have brought this matter to a head by filing a Motion to Intervene pursuant to Federal Rule of Civil Procedure 24(a)(2), and a Motion for Approval of the Payment and Disbursement of Attorneys’ Fees and Costs. Defendants object to both Motions. Background The parties to this dispute include, on the one side, the Plaintiff class of boys and, now, girls incarcerated at the Training School, and the proposed Intervenors ACLU and ACLU-RI. The ACLU and the ACLU-RI are non-profit corporations created to defend the civil liberties embodied in the United States Constitution. The other side of this dispute includes DCYF, the Attorney General for the State of Rhode Island, and the State’s Chief Disciplinary Counsel (collectively “Defendants”). The focus of the dispute concerns the interpretation and reach of three Rhode Island rules regulating the payment of legal fees. Rhode Island Rule of Professional Conduct 5.4(a) states that, “A lawyer or law firm shall not share legal fees with a nonlawyer,” except in enumerated instances which do not apply to this case. Rhode Island Rule of Professional Conduct 7.2(c) prohibits lawyers from compensating non-lawyers for recommending their services. The third prohibition is codified in Rhode Island General Laws § 11-27-3, which states: Any person, partnership, corporation, or association that receives any fee or any part of a fee for the services performed by an attorney at law shall be deemed to be practicing law contrary to the provisions of this chapter. A violation of this section is punishable by a fine, or, in some instances, a prison sentence. R.I. Gen. Laws § 11-27-14. The prohibition against fee-sharing with nonlawyers is a longstanding tenet of our country’s legal system. The focus of the public policy concern is that lawyers might arrange for nonlawyers to solicit business for them in exchange for a share of the fees — what is generally referred to as “ambulance-chasing.” The prohibition is also intended to prevent corporations from offering legal services through salaried lawyers, where clients’ fees would contribute to the corporate bottom line, thereby compromising lawyer independence. Generally, while the prohibitions were not necessarily intended to affect organizations such as the ACLU, they are drafted broadly and, when interpreted literally, they do encompass the ACLU, as well as other not-for-profit legal services organizations, in their sweep. The ACLU employs salaried staff attorneys to litigate certain civil rights cases. If their efforts are successful and attorneys’ fees are awarded, then those fees are turned over to the ACLU. Similarly, other ACLU cases are litigated by cooperating private attorneys, who take the cases on a volunteer, or pro bono, basis. These attorneys agree at the outset to turn over some or all of any awarded fees to the ACLU, which pays the up-front costs associated with the litigation. The monies generated through these efforts provide a significant source of the organization’s funding, and support ongoing civil rights litigation. This arrangement prevailed in Rhode Island until recently. On June 14, 2000, the Rhode Island Supreme Court Ethics Advisory Panel issued an opinion reviewing Rhode Island Rules of Professional Conduct 5.4(a) and 7.2(c), in response to an inquiry from a volunteer cooperating attorney for ACLU-RI. The Panel concluded, “It is ethically improper under both Rule 5.4(a) and Rule 7.2(c) for a lawyer who undertakes pro bono representation in RI-ACLU sponsored litigation to pay a percentage of court-awarded attorneys’ fees to the RI-ACLU.” Opinion No.2000-05, Request No. 801, page 1. The Panel catalogued the concerns behind the Rules, and reviewed a formal opinion of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (Formal Opinion 93-374), wherein the ABA had reviewed the same prohibitions, codified by the ABA Model Rules, and had come to the opposite conclusion: “that the sharing of court-awarded fees with sponsoring nonprofit organizations does not present the threat of interference with a lawyer’s independent judgment or financial incentive sufficient to invoke the prohibition of Model Rule 5.4(a).” Opinion No.2000-05, Request No. 801, page 2. The Rhode Island Supreme Court Ethics Advisory Panel concurred with the ABA that prohibitions against fee-sharing “ought not” to apply in the context of RI-ACLU sponsored pro bono litigation because such an application did nothing to advance the underlying purpose of the rules. Nevertheless, the Panel opined: Notwithstanding the public policy considerations that would justify an additional exception to Rule 5.4(a) which would permit fee-sharing in the situation presented in this inquiry, the Panel declines to interpret such an exception where the language of the rule is clear on its face.... The Panel is similarly limited by the plain meaning of the language of Rule 7.2(c). Opinion No.2000-05, Request No. 801, page 8. Thereafter, the Ethics Advisory Panel petitioned the Rhode Island Supreme Court to consider amendments to the pertinent rules that would permit lawyers to share court-awarded fees with non-profit corporations in-the kinds of situations such as the one that had provided the occasion for inquiry No. 801. In re Rule Amendments to Rules 5.4 and 7.2(c) of the Rules of Professional Conduct, 815 A.2d 47 (R.I.2002). However, the Rhode Island Supreme Court declined to adopt such amendments in the face of the ban on the same conduct imposed by R.I. Gen. Laws § 11-27-3. Citing the General Assembly’s power to prohibit any act as a crime as long as that exercise of power does not violate the federal or State constitutions, the Court wrote, As a matter of comity, we believe this Court should avoid enacting rules that would conflict with the Legislature’s policy determination in this area.... Because the present legislative ban on attorney fee sharing with, inter alia nonprofit corporations (§ 11-2,7-3) does no.t violate any constitutional provisions, Creditors’ Service Corp. v. Cummings, 57. R.I. 291, 300, 190 A. 2 (1937), we believe we should respect the legislative determination that such conduct is sufficiently detrimental as a policy matter to be worthy of criminal sanctions. Id. at 49. The Court added that the proposed amendments might very well encourage “the scurrilous practice of ambulance chasing by enterprising individuals masquerading as public-need-nonprofit corporations,” because forming a nonprofit corporation that conformed to the amendment’s definition was a relatively easy project, even for non-residents. Id. at 50. On the other hand, the Court continued, pro bono attorneys, genuinely motivated to litigate in the public interest, deserve to receive any court-awarded fees; and, moreover, they are free to donate those fees to any organization of their choosing. Id. at 51. The Rhode Island Supreme Court endorsed the conclusion of Ethics Advisory Opinion No.2000-05, rather than its recommendation. The Court was unconcerned that the Ethics Advisory Opinion conflicted with the position of the American Bar Association, because the American Bar Association had emphasized in its opinion that the laws and rules of individual jurisdictions must control on the issue of fees-haring. Id. at 52. Likewise, the Supreme Court dismissed petitioners’ First Amendment concerns as lacking any sound basis in law or precedent. Id. at 53. However, the last word, as of this writing, has been issued by the Rhode Island General Assembly, which amended both Rhode Island General Laws § 11-27-3 and § 11-27-6 during its most recent legislative session in order to permit legal fee-sharing with non-profit organizations under certain conditions. These amendments were enacted on July 14, 2006, and became effective upon passage. Although the amendments became law after the filing of the parties’ memoranda in this case, the Court feels certain that there is no real dispute that the fee arrangements previously and routinely undertaken by the ACLU and ACLU-RI are no longer prohibited by the Rhode Island General Laws. The Rhode Island General Assembly has clearly established a policy of allowing these fee arrangements. However, the statutory amendments have no retroactive force, and leave unresolved the disposition of the fees generated on behalf of Plaintiffs herein during the period between the Rhode Island Supreme Court’s decision in In re Rule Amendments and September 30, 2005, when these Motions were filed. The fees that are the subject of the present dispute total $201,578.89, and comprise $143,246.07 currently in the ACLU’s escrow account, and $58,332.82, the amount previously agreed upon and awarded but withheld by Defendants. Motion to Intervene As a threshold matter, the Court must first address the Motion to Intervene, pursuant to Federal Rules of Civil Procedure 24(a)(2), brought by the ACLU and ACLU-RI. The ACLU and ACLU-RI seek to intervene in this lawsuit as a matter of right, under the portion of the Rule which states: Upon timely application, anyone shall be permitted to intervene in an action when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. Fed.R.Civ.P. 24(a)(2). The ACLU and ACLU-RI seek to intervene for the limited and sole purpose of resolving the fee-sharing dispute. They argue that they have an undeniable interest in the property which is the subject of the motion, and that their interest will not be adequately represented by the existing parties. For their part, Defendants object to the Motion, arguing that the ACLU and ACLU-RI are not proper parties with requisite standing, and that the outcome of the underlying case will not affect the ACLU “one bit.” The First Circuit has extrapolated a four-part test from the Federal Rule. To intervene as a matter of right, a party must show that: (1) it timely moved to intervene; (2) it has an interest relating to the property or transaction that forms the basis of the ongoing suit; (3) the disposition of the action threatens to create a practical impediment to its ability to protect its interest; and (4) no existing party adequately represents its interests. B. Fernandez & Hnos. v. Kellogg USA Inc., 440 F.3d 541, 544-545 (1st Cir.2006). The Motion presented by the ACLU and ACLU-RI, wherein attorneys for the Plaintiff class move to intervene as parties in the underlying lawsuit, is not a conventional motion to intervene. See, e.g., Dag-gett v. Commission on Governmental Eth ics, 172 F.3d 104 (1st Cir.1999). However, given the history .of the ACLU and ACLU-RI’s long and persistent effort to obtain a resolution of this issue, .the Court is inclined to grant their Motion to intervene in this case. Rather than engaging in a convoluted analysis in order to fit the facts of this Motion’s square peg into the Rule’s round hole, the Court will fall back on the “reasonable measure of latitude” that has been afforded by the First Circuit to the District Court in the practical application of Rule 24(a)(2). Daggett, 172 F.3d at 113. This approach was explained by Judge Selya in Public Service Co. of New Hampshire v. Patch: The application of this [four-part test] framework to the divers factual circumstances of individual cases requires a holistic, rather than reductionist, approach. The inherent imprecision of Rule 24(a)(2)’s individual elements dictates that they “be read not discretely, but together,” and always in keeping with a commonsense view of the overall litigation. 136 F.3d 197, 204 (1st Cir.1998) (citations omitted). Because the Court determines that ACLU and ACLU-RI’s intervention in this case for the limited purpose of resolving the fee dispute comports with “a commonsense view of the overall litigation,” the Court grants the Motion to Intervene. Henceforth herein where appropriate, the ACLU and ACLU-RI will be referred to collectively as the “ACLU Plaintiffs.” Analysis The dispute over attorneys’ fees Federal civil rights law, codified under 42 U.S.C. § 1988(b), permits the court to award reasonable attorneys’ fees to the prevailing party in “any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title ...” The Plaintiff class of Boys’ Training School inmates prevailed in their § 1983 action, and attorneys’ fees were awarded pursuant to this statutory provision. As explained above, these fees were routinely paid over until the Rhode Island Supreme Court’s decision in In re Rule Amendments raised the specter that continued payment would violate Rhode Island law. The ACLU Plaintiffs move for Court approval of the disbursement' of the fees,’ arguing that the award of attorneys’ fees is an integral part of the operation of the nation’s civil rights laws which are enforceable by this Court even in the face of state statutory prohibitions. Their arguments rely on the protections afforded by the First Amendment and the Supremacy Clause. Defendants reply that the ACLU and ACLU-RI are not the prevailing party as defined by § 1988; and that, at any rate, Defendants are prohibited by state law from making the payment to the ACLU and ACLU-RI. The prevailing party At the outset, Defendants argue that the ACLU and ACLU-RI are not entitled to attorneys’ fees because the statute provides that the award goes to prevailing parties, not to their attorneys or to the legal services organization that represents them. In this case, Defendants’ argument presumably leads to the position that the fees should instead go directly to the Plaintiff Class, juveniles incarcerated or previously incarcerated for breaking the law. Defendants’ argument, though it is not without support, flies in the face of common sense and practicality. Defendants rely on Venegas v. Mitchell, 495 U.S. 82, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990), to bolster their argument that fees go to the prevailing party not to the prevailing party’s attorney. However, analyzed in its entirety, Venegas does not stand for the proposition that a successful plaintiff should receive court-awarded legal fees directly. Plaintiff Venegas had entered into a contingent fee agreement with his attorney to pay him 40% of the gross amount of any recovery in his police misconduct litigation. Venegas obtained a judgment in his favor for $2.08 million. Under 42 U.S.C. § 1988, the court made an award of attorneys’ fees in the amount of $117,000, based on a reasonable hourly rate multiplied by the number of hours spent by the attorney on the case. In ruling that the attorney was entitled to the court-awarded attorneys’ fees plus any amount over that as provided by the contingent fee agreement, the Supreme Court wrote, In sum, § 1988 controls what the losing defendant must pay, not what the prevailing plaintiff must pay his lawyer. What a plaintiff may be bound to pay and what an attorney is free to collect under a fee agreement are not necessarily measured by the “reasonable attorney’s fee” that a defendant must pay pursuant to a court order. Id. at 90,110 S.Ct. 1679. First Circuit civil rights jurisprudence lends further support to the notion that, while legal fees awards are made to the prevailing party, there is a tacit, or sometimes even explicit, expectation that those fees will go directly to the attorneys. In Reynolds v. Coomey, 567 F.2d 1166 (1st Cir.1978), a black female plaintiff was the prevailing party in an employment discrimination suit. The district court awarded legal fees to her private attorney, but denied the claim for fees brought by co-counsel from the NAACP Legal Defense Fund. The First Circuit reversed the denial of fees, stating, “We see no basis for omitting NAACP Legal Defense Fund. Attorney’s fees are, of course, to be awarded to attorneys employed by a public interest firm or organization on the same basis as to a private practitioner.” 567 F.2d at 1167. In Lund v. Affleck, 587 F.2d 75 (1st Cir.1978), the Court awarded legal fees to Rhode Island Legal Services, a federally-funded legal aid organization, for its work on behalf of the prevailing parties in three § 1983 actions. In Palmigiano v. Garrahy, 616 F.2d 598 (1st Cir.1980), the Court held that three staff attorneys employed by the ACLU’s National Prison Project should be compensated at the same rate as the private local counsel, all of whom represented the prevailing party — inmates at Rhode Island’s Adult Correctional Institutions. The Palmigiano Court reviewed its prior precedents and concluded, that “public interest organizations (whether privately or publicly funded)[are to] be awarded attorney’s fees under the Fees Act on the same basis as private practitioners.” 616 F.2d at 601. In light of these precedents, this Court determines that the fact that the ACLU Plaintiffs are not literally the prevailing parties poses no impediment to their receipt of the fee award. First Amendment ACLU Plaintiffs argue that Rhode Island’s prohibition on fee-sharing with non-lawyers restricts their pursuit of civil rights litigation and, therefore, violates the free speech protections provided by the First Amendment. In support of their argument, Plaintiffs rely on two Supreme Court cases, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), and In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978). NAACP v. Button involved a challenge by the civil rights group’s legal defense fund to Virginia’s statutory prohibition against the solicitation of legal business. In its efforts to bring about the desegregation of Virginia public schools, the NAACP met with parents to explain the legal process that it was undertaking to challenge segregation, and to encourage participation in the organization’s efforts. To the extent that the activities at these meetings were characterized as “solicitations,” they ran afoul of Virginia’s prohibition. The NAACP challenged the statute, arguing that it abridged its First Amendment freedom “to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights.” 371 U.S. at 428, 83 S.Ct. 328. The State responded that the prohibition against solicitation fell “within the traditional purview of state regulation of professional conduct.” Id. at 438, 83 S.Ct. 328. The Supreme Court sided with the NAACP, holding that the NAACP’s activities were “modes of expression and association protected by the First and Fourteenth Amendments ...” Id. at 428-429, 83 S.Ct. 328. The Court went on, In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. Id. at 429, 83 S.Ct. 328. Moreover, the Court concluded, the State’s interest in regulating the legal profession was insufficiently compelling to justify a broad restriction on First Amendment freedoms. Id. at 438, 83 S.Ct. 328. Plaintiffs also cite In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), in support of their First Amendment argument. In that case, a South Carolina-based lawyer for the ACLU met with women who had been sterilized as a condition of receiving public assistance, and later informed one woman, by letter, that she could obtain free legal representation from, the ACLU. The lawyer was subsequently reprimanded by the South Carolina Supreme Court for violating its disciplinary rule against the solicitation of legal clients. In framing the issue for analysis, the Court emphasized that, while Primus had indeed engaged in a solicitation, she had been motivated by political beliefs and a commitment to civil rights objectives, rather than by financial gain. Id. at 422, 98 S.Ct. 1893. Despite the State’s arguments to the contrary, the Court determined that the activities and aims of the ACLU were similar to those of the NAACP, as previously found in Button; and that those activities constituted protected modes of political expression and association. Id. at 428, 83 S.Ct. 328. Appellant’s letter of August 30, 1973, to Mrs. Williams thus comes within the generous zone of First Amendment protection reserved for associational freedoms. The ACLU engages in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. As Button indicates ... the efficacy of litigation as a means of advancing the cause of civil liberties often depends on' the ability to make legal assistance available to suitable litigants. Id. at 431, 83 S.Ct. 328 (citations omitted). The appropriateness of these two cases to Plaintiffs’ argument is obvious. Like the plaintiffs in Button and Primus, the ACLU Plaintiffs herein are using a class action lawsuit to advance the cause of civil liberties for a group of litigants, juvenile prison inmates, whose access to private legal representation is limited. They are motivated not by pecuniary gain, but by their political beliefs and their commitment to securing civil rights for underprivileged members of our society. However, the Rhode Island disciplinary rules and statute at issue do not aim to quiet the voice of the ACLU altogether. A restriction that achieved such a result would clearly be impermissible under Button and Primus. The sole effect of the Rhode Island rules is to restrict the compensation the ACLU Plaintiffs may receive when they prevail in a lawsuit. No one could argue convincingly that it is possible to undertake a lawsuit without financial expenditure. Consequently, it would be reasonable to argue that, because the ACLU relies on court-awarded legal fees as a significant source of funding for its activities, cutting off this funding results in a restriction as chilling to its First Amendment rights as a prohibition against solicitation. However, this Court will stop short of arriving at this conclusion, choosing instead to resolve this case on other grounds. In his concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936), Justice Louis Brandéis set forth rules that the Supreme Court developed for its use in constitutional cases. This Court turns now to Rule Four for guidance: 4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide on the latter. 297 U.S. at 347, 56 S.Ct. 466. See also, Greenless v. Almond, 277 F.3d 601, 607 (1st Cir.2002). The Supremacy Clause In selecting the Supremacy Clause as grounds for this decision, this Court realizes that it is eschewing one constitutional issue in favor of another. However, as the breadth, force and power of the Supremacy Clause has been clearly defined, the Court will be following a familiar and well-established course in deciding the dispute on these grounds.

433242-19979

BREITENSTEIN, Circuit Judge. These twelve consolidated appeals involve deficiencies in gift taxes for the calendar years 1951 to 1954, inclusive, on gifts made by J. A. LaFortune and Gertrude L. LaFortune, his wife, in trust for minors. The Tax Court, with one judge concurring specially and three judges dissenting in part, upheld the Commissioner. During the years in question Mr. and Mrs. LaFortune made total gifts of $495,026.11, which included gifts of $215,881.25 in trust for minors. The Commissioner determined that as to the latter the annual $3,000 exclusion provided by § 1003(b) (3) of the 1939 Internal Revenue Code, as amended, 26 U.S.C.A. § 1003(b) (3), was not allowable with respect to the 1951-2 gifts of corpus and gifts of the present right to receive income and was not allowable with respect to the 1953-4 gifts of corpus. The total deficiency of $34,986.91 was assessed against the donors in the amount of $25,636.79 and against transferees in the amount of $9,350.12. The transferee liability is only for the tax arising from the 1951 gifts. Of the 29 gifts to trustees for the benefit of minors, 13 were made during 1951 and 1952 and 16 during 1953 and 1954. Each trust was for the benefit of named minors. In each the designated trustee was a parent of the beneficiary and with one exception the first successor trustee was the other parent. The second successor trustee was a bank. Each trust agreement provides that the trustee is to pay the income annually to the beneficiary or to his or her guardian if such guardian “has been appointed by the proper court.” The termination provisions of the trusts involved in the years 1951-2 differ in one important particular from those provisions of the trusts involved in the years 1953-4. In each instance there are termination and distribution of corpus upon the attainment by the beneficiary of the age of majority or upon the death of the beneficiary. In the event of death distribution is to the heirs of the beneficiary in accordance with the Oklahoma laws of descent and distribution. The difference arises in that the following provision is contained in the 1951-2 trust agreements but not in the 1953-4 trusts: “Trustee shall have the right and authority, in [his or] her sole discretion, to terminate this trust at any time [he or] she deems it for the best interests of the beneficiary to do so * * * ” In event of such termination distribution is to be made to the beneficiary or guardian. No termination of any trust occurred during the period involved. The $3,000 annual exclusion provided by § 1003(b) (3) does not apply in the case of gifts of future interests in property. The disabilities of minority are such that, in many instances, a gift to a minor takes the form of a trust for the benefit of the minor with either payment or accumulation of income and with corpus distribution deferred to attainment of majority or some greater age. Future interests are interests “limited to commence in use, possession, or enjoyment at some future date or time.” Recognizing the problem of whether a gift in trust for a minor can be a present interest and the resulting hindrance to such gifts, Congress, by § 2503(c) of the 1954 Internal Revenue Code, 26 U.S.C.A. § 2503(c), provided that gifts to minors will not be considered gifts of future interests if the income and property can be spent by or for the child before he attains age 21 and if not so spent pass to the child when he reaches that age or to his estate if he dies prior thereto. Such amendment is of no avail in these cases which must be decided under the previous law. Separate and independent consideration must be given to the gift of the corpus and to the gift of the income. If the income of a trust is required to be distributed periodically, as annually, but distribution of the corpus is deferred, the gift of the income is one of a present interest and the gift of the corpus is one of a future interest. In the instant cases there is an unconditional direction to each trustee to pay the income “at least annually” to the beneficiary or his guardian, and an alleged deferment of distribution of the corpus. The decisive test as to whether a gift is so limited to commence in enjoyment at a future date as to constitute a gift of a future interest is “the barrier of a substantial period between the will of the beneficiary or donee now to enjoy what has been given him and that enjoyment.” In the 13 trusts involved in the 1951-2 gifts distribution of corpus can occur when a beneficiary reaches majority, when a beneficiary dies before attaining majority, or when the trustee in his sole discretion terminates the trust for the best interests of the beneficiary. A gift of an interest which is contingent upon survivorship is a gift of a future interest. This rule controls unless the power of the trustee to terminate before majority alters the situation. Speaking generally, when enjoyment is contingent on the exercise of a trustee’s discretion, the gift is of a future interest. With regard to the 1951-2 gifts the appellants contend that there is no barrier to the right of present enjoyment because the trustee, in each case a parent, has the uncontrolled power to tenninate at his sole discretion. Relying on the rule that the nature of the interest of the donee is determined as of the date of the gift and not by what a trustee may subsequently do in the exercise of a discretionary power, they insist that the parent-trustee could have immediately exercised his discretion to terminate and hence the minor beneficiary had the right to immediate enjoyment and a present interest was given by the donor. Gifts in trust take such different and varied forms that it is difficult to lay down a categorical rule as to whether a gift is of a future or present interest. Each case must be decided on its particular facts. As a general proposition, the minimum qualification for a present interest is the right in some one, a parent, guardian or the beneficiary himself, to make an effective demand for the present enjoyment of the property. The 1951-2 gifts of corpus were each to a single parent-trustee who may terminate the trust in his sole discretion at any time when he deems it for the best interest of the beneficiary. No one was given the right to demand such termination. There is nothing in the stipulation of facts upon which the cases were tried which bears on the needs of the minor beneficiaries or the financial abilities of the parents. There is no claim that any parent-trustee was the legally appointed guardian of his beneficiary. In substance the argument of the appellants is that the parent-trustee was given the broad general powers of a guardian and hence, at the moment of execution of each agreement, the beneficiary had all the advantages and incidents of ownership of corpus that it is possible for a minor to have. Further, they say that in such circumstances there is no necessity for the trustee to make a demand on himself. The acceptance of such an argument would require that we disregard the legal distinctions which differentiate the identities of parent, guardian, and trustee. While there is a fiduciary relationship between a guardian and his ward, a guardianship is not a trust. There are numerous differences. While a trustee has title to trust property, a guardian has ordinarily only powers and duties respecting property to which the ward holds title. A ward has normally a legal interest while the beneficiary of a trust has an equitable interest in the corpus of the trust. In Oklahoma a parent as such has no control over the property of a child. Also, in Oklahoma, no person whether a parent or otherwise has any power as a guardian of property except by appointment which in pertinent situations has to be by a county court. Under each of the 13 trusts the right of the minor child to immediate enjoyment was dependent upon the exercise of the trustee’s discretionary power to terminate when he deemed it “for the best interest of the beneficiary.” This limitation upon the discretionary power may not be disregarded. In the absence of a showing that the best interests of the beneficiaries so affirmatively required termination that the failure to exercise the discretionary power amounted to an abuse of discretion, there was no way to compel the trustee to terminate. There is nothing in any of the appeals here presented to bring any of the trusts within any exceptions to the general rule that the nature and extent of the duties and powers of the trustee are determined by the terms of the trust. Those powers are not enlarged by the fact that the trustee is also the parent and natural guardian of the minor beneficiary. No trustee in his capacity as parent or natural guardian had a right to demand termination of the trust or distribution of corpus. In his capacity as trustee he was bound by the trust provisions. Enjoyment of the gift of corpus was plainly dependent upon trustee discretion. This was a substantial barrier to immediate enjoyment and places the corpus of the gift in the category of a future interest. In comparable situations involving parent-trustees the holdings have been that the gift was of a future interest. The trust agreements involved in the 1953-4 gifts did not authorize termination upon the exercise of trustee discretion and provided for termination only on attainment of majority or death prior thereto. As to these, the appellants again emphasize the broad powers given the trustee and the natural relationship between the parent-trustees and the minor beneficiaries but this argument is even less persuasive here than it was in connection with the 1951-2 gifts. Appellants point out the trust provisions which empower a trustee to determine what is income and what is principal but they make no effort to explain, and we fail to understand, how this could convert a future interest into a present interest. Also, they direct attention to the trust requirement that upon failure of the trust, the trustee shall distribute principal and accumulated income to the beneficiary. This is unimportant because neither the beneficiary nor anyone acting for him can cause such failure. Clearly the 1953-4 gifts of corpus are within the previously noted rule that there is a gift of a future interest when enjoyment of that interest is contingent upon survivor-ship. We agree with the Tax Court that all the gifts of corpus involved future interests and hence the $3,000 exclusion does not apply. Under each trust the beneficiary had the immediate right to the enjoyment of income. The Commissioner concedes that the 1953-4 gifts were of present interests so far as the right to income was concerned and allowed the application of the exclusion thereto. As to the right to income under the 1951-2 gifts the Tax Court held that the exclusion could not be allowed because the provision for discretionary termination by the trustee made the interest incapable of valuation. In so holding, strong reliance was placed on the decision in Estate of Herrmann v. Commissioner, supra. Two judges dissented saying that the interest was capable of valuation and that the decision in Estate of Herrmann was wrong. The value of a present right to income given in trust is calculated by multiplying the expected annual return by the probable period over which it will be paid. In the case of the 1951-2 gifts the probable period over which the income will be paid is uncertain because the trustee has the discretionary right of termination. An integral element of the formula is unknown. While there are several decisions involving the valuation of gifts to minors, none has considered a situation identical with that here presented. Appellants rely on the theory of the Tax Court dissents. It is argued that the accelerated termination of the trust can only have the effect of investing the beneficiary with the title to the corpus and cannot change the size or value of the present right to income. As heretofore noted separate consideration must be given to the gift of the corpus and to the gift of the income. A separate valuation of each is necessary. The theory that the valuation of the right to income is not affected by the circumstance of an accelerated distribution of principal overlooks the difference between income received by an owner as the result of absolute ownership of property and income received by a trust beneficiary as the result of payments to his trustee from the proceeds of trust investments. The two are different in legal contemplation. The possibility of a future merger of the corpus and the right to income does not justify the conclusion that the value of the right to income is the same whether derived from the trust or from ownership because it ignores the distinction between income from ownership and income from a trustee to his beneficiary. It may be that from a practical standpoint the value would be the same but that possibility is not controlling The importance of this distinction in cases involving gifts in trust to minors has been removed by § 2503(c) of the 1954 Internal Revenue Code but we arc bound by the Fondren and Disston decisions which require separate treatment, including valuation, of the gift of corpus and the gift of income. The other theory is that the real gift is the gift of corpus and hence the right to income flows not from the trust but from the ownership of the corpus. This flatly ignores the rule that the gift of corpus and the gift of income have to be considered separately. If the theory were accepted, then the issue would rest squarely on whether the gift of corpus was that of a present interest. As has been said, our conclusion is that it was a gift of a future interest. In Commissioner of Internal Revenue v. Disston, supra, it was stated that the taxpayer claiming the exclusion must assume the burden of showing the value of what he claims is other than a future interest That burden has not been sustained in these cases. We conclude that the Tax Court correctly held that the rights to income under the 1951-2 gifts were incapable of valuation and hence were not subject to the claimed exclusion. The remaining question is that of transferee liability for the tax on the 1951 gifts. It is agreed that the donors are solvent and that the statute of limitations barred collection from them. In four cases the assessment was made against donees of gifts out of which none of the claimed deficiencies arose. The liability of a donee as transferee for unpaid gift tax of his donor is clearly established by statute but such liability is limited to the value of the gift received by him. Such liability has been repeatedly upheld by the courts. Solvency or insolvency of the donor is immaterial and assertion of a deficiency against the donor is not required. The statute clearly imposes the liability on any donee of a gift made during the year and hence the fact that the deficiency exists because of a gift to another makes no difference. Appellants argue that the notices of transferee liability did not prorate the liability. That is of no concern as the statute makes each donee liable, to the extent of his gift, for unpaid tax on all gifts made by the donor during the same calendar year. In Nos. 5927 to 5938, inclusive, the decisions of the Tax Court are severally affirmed. . The Tax Court opinion is reported at 29 T.C. 479. Two judges dissented on the disallowance of the exclusion as to the 1951-2 gifts of income. One dissenting judge would allow the exclusion as to the 1951-2 gifts of corpus. . The exception was the trust in which Lucius LaFortune was named trustee for Daniel LaFortune, docket No. 5930. . Treasury Regulations 108, § 86.11 derived from H.Rep. No. 708, 72d Cong., 1st Sess., p. 29. See Commissioner of Internal Revenue v. Disston, 325 U.S. 442, 446, 05 S.Ct. 1328, 89 L.Ed. 1720, and authorities there cited. . H.Rep. 1337, 83d Cong. 2d Sess.; 3 U.S. Code Cong, and Adm.News 1954, pages 4120 and 4760. . Fondren v. Commissioner, 324 U.S. 18, 21, 65 S.Ct. 499, 89 L.Ed. 668; Commissioner of Internal Revenue v. Disston, supra; Estate of Herrmann v. Commissioner, 5 Cir., 235 F.2d 440, 444; Sensenbrenner v. Commissioner, 7 Cir., 134 F.2d 883, 885; Fisher v. Commissioner, 9 Cir., 132 F.2d 383, 385. . Fondren v. Commissioner, supra, 324 U.S. at page 20, 65 S.Ct. at page 501. . United States v. Pelzer, 312 U.S. 399, 404, 61 S.Ct. 659, 85 L.Ed. 913. Cf. Commissioner of Internal Revenue v. Sharp, 9 Cir., 153 F.2d 163. . Commissioner of Internal Revenue v. Disston, supra, 325 U.S. at pages 448, 449, 65 S.Ct. at page 1331; Fondren v. Commissioner, supra, 324 U.S. at pages 28-29, 65 S.Ct. at pages 504-505. . Commissioner of Internal Revenue v. Brandegee, 1 Cir., 123 F.2d 58, 61. . Commissioner of Internal Revenue v. Kempner, 5 Cir., 126 F.2d 853, 854. . In Gilmore v. Commissioner, 6 Cir., 213 F.2d 520, it was held that a gift in trust for the benefit of a minor was a gift of a present interest because on demand of the beneficiary the trustee was required to pay to him principal and income. A similar result was reached in Kieckhefer v. Commissioner, 7 Cir., 189 F.2d 118, Strekalovsky v. Delaney, D.C., 78 F.Supp. 556, and Welles v. Sauber, D.C., 142 F.Supp. 449, where each trust gave the legally appointed guardian of the minor the power to make such a demand. The trust agreement considered in United States v. Baker, 4 Cir., 236 F.2d 317, 319, empowered the trustee to use income and principal for the benefit of the minor as if he “were holding the properties as Guardian of the beneficiary.” The Tax Court has held that the gift is of a future interest unless there is some one, such as a guardian or parent, who at the time the trust was created could make an effective demand on behalf of the minor for immediate possession and enjoyment of the property. In George W. Perkins, 27 T.C. 601, the trust provided that the beneficiary, his parent or his duly appointed guardian had the right to demand and receive as I>roperty of the beneficiary all or part of the principal and accumulated income, and the gift was held to be of a present interest. A contrary result was reached in Abraham M. Katz, 27 T.C. 783, where there were two trustees, the donor’s accountant and the beneficiary’s mother, and no one was given the unqualified right to demand distribution. In William Goehner, 28 T.C. 542, the trustees, who were the parents of the beneficiaries, were empowered to use the income and so much of the principal as they deemed necessary “for the education, support, maintenance, health and welfare” of the beneficiaries. The Tax Court held that the gift was of a future interest and pointed out that there was no person with the unqualified right to demand the property and that, as the parents were financially able to maintain, educate and support the beneficiaries, there was no showing of the necessity required by the trust agreement for distribution. . Restatement of the Law, Trusts, Vol. 1, § 7, p. 27. . The donors were Oklahoma residents and each trust provided it ‘shall be governed and construed under the laws of the State of Oklahoma.” . 10 O.S.1941 § 8; In re Guardianship of Eight, 194 Okl. 214, 148 P.2d 475, 479. . 30 O.S.1941, §§ 7 and 8; Seal v. Banes, 168 Okl. 550, 35 P.2d 704, 712. This is an acceptance of the general rule. See 25 Am.Jur., Guardian and Ward, § 10, p. 13. . Cf. Welch v. Paine, 1 Cir., 130 F.2d 990, 992; Restatement of the Law, Trusts, Vol. 1, § 187, p. 479. . Restatement, supra, § 164, p. 403. . Rassas v. Commissioner, 7 Cir., 196 F.2d 611; Welch v. Paine, supra, and the Tax Court decisions in Abraham M. Katz and William Goehner, both supra. Cf. Stifel v. Commissioner, 2 Cir., 197 F.2d 107, and the Tax Court decision in George W. Perkins, supra. . See Note 7. . Treasury Regulations 108, § 86.19(f). Exhibits showing the method of computation are in the record.

3423722-15345

REMAND ORDER CEREZO, District Judge. The Commonwealth of Puerto Rico filed a petition for expropriation on January 1979 in the Superior Court of Puerto Rico seeking the condemnation of part of defendant Cordeco’s oeeanfront property. The land condemned will serve as a recipient of the pluvial waters of a government housing project to be built nearby. Cordeco filed a Petition for Removal on March 4, 1981 which was later amended. Jurisdiction is invoked on the basis of diversity of citizenship, Cordeco being a corporation which is registered in Panama, and because the cause of action arises under the Constitution of the United States and other federal laws. Cordeco claims it has been deprived of property without due process of law because the expropriation proceedings are part of a plan devised by certain indi viduals to make a profitable sale of the housing project. It contends that the housing project could not be sold unless the problem of the drainage of pluvial waters was solved and that the delay caused by this problem resulted in the expiration of a governmental permit for the project. It is further alleged that an expired permit for the project was then renewed without following legal procedures in the proper agency and that, as part of the plan, these individuals then induced the Governor of Puerto Rico to commence proceedings to condemn part of Cordeco’s land. Cordeco claims that these series of events, plus the alleged inadequate appraisal of the land, all point to violations of the Fifth and Fourteenth Amendments and of 42 U.S.C. Secs. 1981, 1982, 1988, 1985. As a final alternative argument, it suggests that we exercise pendent jurisdiction over the expropriation proceedings because there are serious constitutional questions involved. Plaintiffs urge that there is no diversity jurisdiction because the Commonwealth is the plaintiff in the condemnation proceedings and a “state” cannot be a citizen for diversity purposes. Defendant argues, in turn, that the Commonwealth is only a nominal party and that the real parties in interest are the Cooperative Development Company (“Agency”) and the Agency’s chief executive, who are U. S. citizens, residents of Puerto Rico, and, therefore, as a foreign corporation, it is entitled to litigate in this forum since diversity jurisdiction exists. Plaintiffs’ position is based primarily on the fact that the action is an exercise of its power of eminent domain, a power that has traditionally been associated with the sovereign characteristics of a state. Louisiana Power and Light Co. v. City of Thibodaux, 360 U.S. 25, 26, 79 S.Ct. 1070, 1071, 3 L.Ed.2d 1058 (1959); Galveston Wharf Co. v. Galveston, 260 U.S. 473, 476, 43 S.Ct. 168, 169, 67 L.Ed. 355 (1923); Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 17 S.Ct. 718, 41 L.Ed. 1165 (1897). It cites State v. American Machine & Foundry Co., 143 F.Supp. 703 (D.C.Colo. 1956) in its support. In that case, the Dis trict Court determined that the State of Colorado was the real party in interest due to the nature of the condemnation proceedings. Defendant, in turn, urges us to adopt the criteria of Idaho Potato Commission v. Washington Potato Commission, 410 F.Supp. 171 (D.C.Idaho 1975) where a financially independent government agency was held to be the real party in interest in enforcing the rights to a patent that it possessed. We find that the circumstances of this case bring it closer to State v. American Machine, ante, than to Idaho Potato Commission, ante. The nature of the action before us compels this conclusion. Under Rule 17(a) FRCP a real party in interest is one who by federal or local substantive law possesses the right sought to be enforced and not necessarily the person who will ultimately benefit from recovery. Doherty v. Mutual Warehouse Co., 245 F.2d 609, 611 (5th Cir. 1957); see: 6 Wright & Miller, Federal Practice and Procedure, § 1541, p. 635 (1971). The purpose of Rule 17(a) is to ensure that the judgment will have proper res judicata effect by preventing a party not joined in the complaint from asserting the “real party in interest” status in an identical future suit; Prevor-Mayorsohn Caribbean v. Puerto Rico Marine, 620 F.2d 1, 4 (1st Cir. 1980), see: Advisory Committee Note to the 1966 Amend ment to Rule 17(a) (1980 West Ed.) p. 40. In order to determine if the party is complying with the rule, the court must first examine the substantive law supporting the right asserted in the cause of action and decide if the person claiming to be the real party in interest possesses that right. Rule 17(b) also indicates that the capacity of a corporation to sue will be determined by the law under which it was organized. The Supreme Court recently held that the determination of a real party in interest for purposes of diversity of jurisdiction, though roughly similar to the procedural guidelines of Rule 17 FRCP, must rest on the substantive right that a given party possesses. The Court considered that the real parties in interest were the trustees instead of the beneficiaries because “. . . they (the trustees) have legal title, manage the assets and control the litigation. ...” Navarro Savings Ass’n. v. Lee, 446 U.S. 458, 100 S.Ct. 1779, 1784, 64 L.Ed.2d 425 (1980). To determine the substantive character of a state as party to a proceeding in order to ascertain if diversity jurisdiction may be invoked, the inquiry must bear upon the essential nature of the proceeding to which a state is party. Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). The courts in Puerto Rico have long recognized the power of eminent domain as one inherent to the Commonwealth. FLA v. Soc. Civil Agrícola e Industrial, 104 DPR 392, 397 (1975); P.R. Housing Authority v. District Court, 68 PRR 50, 55 (1948) aff’d. 171 F.2d 563 (1st Cir. 1949). Although the power of eminent domain, as embodied in P.R.Laws Ann. Tit. 31 Sec. 1113 and Tit. 32 Secs. 2901-2920, can be exercised by government agencies, officers and municipalities, it is always by a delegation of power from the state that these instrumentalities may condemn property. No Commonwealth agency, officer, municipality nor any other government instrumentality may initiate a proceeding for condemnation unless the power of eminent domain has been delegated to it by the state. See: P.R. Laws Ann. Tit. 31 Sec. 1113, Tit. 32 Sec. 2902; P.R. Housing Authority v. District Court, 68 PRR 50, 55-58 (1948) aff’d. 171 F.2d 563 (1st Cir. 1949). This principle is also evident in the statute prescribing the manner in which the U. S. Government will exercise its power of eminent domain. 40 U.S.C. Sec. 256, et seq. and U. S. v. 162.20 Acres of Land, 639 F.2d 299, 303 (5th Cir. 1981); Southern California Fin. Corp. v. U. S., 634 F.2d 521, 523 (Ct.Cl.1980). In other words, the origin of the power of eminent domain is not found in the instrumentality of government benefited by the expropriation but rather in the state itself. Although the Puerto Rico Development Company has been authorized to acquire property by expropriation, it is only by requesting the Governor to initiate the proceedings and acquire the property on “behalf of the Commonwealth of Puerto Rico” that this agency can exercise the delegated power. P.R.Laws Ann. Tit. 5 Sec. 981h(b). When the agency returns to the Commonwealth the total amounts disbursed as compensation or when the Governor deems it necessary that the title be vested in the agency, then by order of the court, title to the property is conveyed to the agency id. at Sec. 981h(d)(e). In the meantime, title is vested in the Commonwealth and is recorded as such in the Registry of Property. P.R.Laws Ann. Tit. 32 Sec. 2907. There is no indication in the law creating this agency that it is empowered to initiate condemnation proceedings in its own name. The fact that the agency cannot per se initiate the proceedings but must request the Governor to institute the action on behalf of the Commonwealth is a clear indication that the Legislature of Puerto Rico chose to limit the delegation to this agency by the manner the power was to be exercised. This limitation is not unique to this agency but is found in many government instrumentalities to which a similar concession has been granted. See: P.R.Laws Ann. Tit. 32 Sec. 2916 (Municipalities), Tit. 5 Sec. 931r(a) (Cooperative Development Administration); Tit. 22 Sec. 149 (Aqueduct & Sewer Authority); Tit. 22 Sec. 6 (Public Works Dept.); Tit. 22 Sec. 203 (Electric Power Authority); Tit. 23 Sec. 251g (Commercial Development Co.); Tit. 23 Sec. 278m (Industrial Development Co.), etc. Not all government instrumentalities in Puerto Rico to which the power of eminent domain has been delegated are limited in this manner. The enabling statutes of the Puerto Rico Land Administration, for example, when describing the proceeding by which it may acquire property by condemnation, states: “The power hereby conferred on the Governor” (to initiate the condemnation proceedings on behalf of the agency) “shall not limit or restrain the authority of the Administration to institute itself the condemnation proceedings when it may deem it convenient.” P.R.Laws Ann. Tit. 28 Sec. 264. The Puerto Rico Housing Authority also has been expressly permitted to exercise the power of eminent domain in its own name. Id. Tit. 17 Sec. 14. These express provisions, outlining the manner in which the power of eminent domain is exercised, reinforce the proposition that the requirement imposed on some agencies limiting the initiation of the proceeding to the Governor on behalf of the Commonwealth is part of a deliberate legislative scheme that we assume responds to constitutional considerations. See: P.R.Cons. Art. II Sec. 9. In fact, an examination of the legislative debate preceding the enactment of the enabling statutes of the Puerto Rico Cooperative Development Company reveals concern for the dangers of creating a centralized powerful agency. To quiet some of these fears, and in particular the matter of the agency’s condemnation power, the legislators expressed that the power of condemnation that would be delegated to the agency was checked by the safeguards in the Constitution and by the fact that the power could only be exercised by the Governor on behalf of the Commonwealth. Vol. 20 Sessions Diary, House of Representatives 1966 p. 1272. Absent an issue as to the public use of the property to be condemned or of its adequate compensation, this Court has no reason to question why the Puerto Rican Legislature chose to restrict the delegation of the power of eminent domain on some government agencies by limiting the manner of exercising the expropriation proceeding. See: Rindge Co. v. Los Angeles, 262 U.S. 700, 709, 43 S.Ct. 689, 693, 67 L.Ed. 1186 (1922); P.R. Housing Authority, ante. For purposes of the present analysis, it is sufficient to note that, pursuant to the enabling statutes of the Cooperative Development Company, this agency cannot initiate condemnation proceedings itself but must request action by the Commonwealth through its Governor. The Commonwealth is the sole entity that possesses the power as well as the capacity to exercise the substantive right underlying the cause -of action sought to be removed, and therefore, it is the only party — now or in the future-— that can initiate the proceeding thereby diluting any possible dangers of a judgment without res judicata effects. The Commonwealth, as the party instituting the action and continuing it to the end, may determine at any stage in the proceedings not to continue with the condemnation. Iriarte v. Secretary of the Treasury, 84 PRR 164, 171 (1964). The control of the litigation, the legal title to the property as well as the initial management of the assets that may be forwarded as additional compensation are all in the hands of the Commonwealth. The long recognized principle that the power of eminent domain is inherent to the sovereignty of a state and the particular legislative design here involved lead us to conclude that the real substantive as well as procedural party in interest, is the Commonwealth of Puerto Rico. This being so, there can be no federal diversity jurisdiction in the action sought to be removed. The other jurisdictional argument deals with the determination of jurisdiction based on “federal question” when removal is requested pursuant to 28 U.S.C. Sec. 1441(a). The established test used to determine the existence of jurisdiction based on federal question — the well pleaded complaint rule, Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974); Louisville v. Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed. 297 (1911) does not seem to be applied with the usual confidence and vigor when removal is the vehicle that brings the matter of jurisdiction to the Court’s attention. Various cases and some commentators have suggested that sometimes when jurisdiction is asserted by way of removal it is necessary to examine the petition for removal and the record as a whole in order to make a proper and just evaluation of a defendant’s jurisdictional allegations. See: Villarreal v. Brown Express, Inc., 529 F.2d 1219 (5th Cir. 1976); Avco Coop. v. Aero Lodge, 376 F.2d 337 (6th Cir. 1967). See generally: 14 Wright, Miller & Cooper, Federal Practice and Procedure, § 3722 (1976). However, the general rule, as announced by our Circuit is: For a suit to be one that arises under the laws of the United States so as to confer original or removal jurisdiction on the federal courts, it must appear on the face of the complaint that resolution of the case depends upon a federal question (citations omitted) .... The fact that a defense to the action may raise a federal question ... is immaterial (citations omitted) .... Brough v. United Steelworkers of America, 437 F.2d 748, 749 (1st Cir. 1971). It is possible that in the interests of justice certain circumstances may require a departure from this general rule. See: Oquendo v. Dorado Beach Hotel Corp., 382 F.Supp. 516 (DCPR 1974). When a plaintiff conceals a federal cause of action by clever draftsmanship, for example, or when important facts as to the status of the parties that may be crucial to determine federal jurisdiction are omitted from the complaint it may be necessary for the court to attend to matters not expressly mentioned in the four corners of the complaint. However, this search is in reality an extended examination of the complaint since what defendant may signal are facts that complement the pleadings or that help in understanding the real nature of the complaint in order to determine whether the allegations are disguising a claim to avoid federal jurisdiction. If the probe of matters not pleaded in the complaint is in effect a search that will always revert to what the complaint contains and if the purpose of the examination is to understand the real nature of the complaint rather than to add extraneous elements to it, then this doctrine, useful in approaching the particular problems that may arise in a removal procedure, can be reconciled with the traditional principle contained in the “well pleaded complaint” rule. See: Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936).

5564281-17575

MEMORANDUM ORDER MARY PAT THYNGE, United States Magistrate Judge. Introduction The matter under consideration involves a dispute over the amount of attorney fees and expenses owed to Crystal Decisions, Inc. d/b/a Business Objects Americas (“BOA”) by Microstrategy Incorporated (“Microstrategy”). On March 25, 2008, 555 F.Supp.2d 475, this court ordered Mi-crostrategy to pay BOA reasonable fees and expenses incurred by BOA after March 14, 2005 for defending against twenty-nine patent claims pursued in bad faith by Microstrategy. The two parties currently dispute what constitutes reasonable fees and expenses. Factual and Procedural Background On December 10, 2003, Microstrategy sued BOA for infringement of Microstrate-gy’s U.S. Patent Nos. 6,279,033 (“the '033 patent”), 6,567,796 (“the '796 patent”) and 6,658,432 (“the '432 patent”). BOA moved for summary judgment, and on January 23, 2006, 410 F.Supp.2d 348, the court granted, in part, BOA’s motion. The court ruled that the '796 and '432 patents were invalid and that BOA had not infringed the '033 patent. The parties stipulated that BOA would dismiss without prejudice its counterclaim seeking a declaration that the '033 patent is invalid. Final judgment was entered on February 23, 2006 and on appeal, the Federal Circuit affirmed. BOA then sought attorney fees and expenses pursuant to 35 U.S.C. § 285. BOA argued that Microstrategy’s suit on the '033 patent was baseless and not narrowed in good faith; that it was clear that the asserted claims of the '796 patent were anticipated, but nonetheless Microstrategy pursued those claims; and that any reasonable attorney would have known that the '432 patent was invalid on some claims, overly broad on others, and clearly anticipated. The court found that BOA is entitled to fees and expenses incurred after March 14, 2005 for defending the '033 patent, the '796 patent, and claims 1, 2, 4 and 5 of the '432 patent. BOA was, however, denied attorney fees and expenses incurred defending claims 6, 9, 10 and 13 of the '432 patent because it did not provide clear and convincing evidence of bad faith litigation concerning those claims. The court then ordered BOA to provide a detailed summary of the time spent defending the bad faith claims, the hourly rates, expense statements and other appropriate documentation consistent with the opinion. On April 15, 2008, BOA submitted a request for $2,249,387.22 in attorney fees and expenses in accordance with the court’s order, $61,815.77 in fees and expenses incurred in the original motion, and an additional $25,758 in fees and expenses for its April 15 submission. BOA submitted over 400 pages of invoices from Townsend and Townsend and Crew (“Townsend”) and Young, Conaway, Stargatt & Taylor, LLP (“YCST”), the two law firms who represented BOA in the litigation with Microstrategy, to support its demand. BOA maintains that its attorney fees and expenses cannot be reasonably allocated on an entry-by-entry basis and that the best way to apportion expenditures would be to multiply the total cost of defending against the three patents by 5/6. Thus, BOA multiplied its total amount of attorney fees and expenses, $2,699,372.64, by 5/6 to arrive at the requested amount of $2,249,387.22. On May 15, 2008, Microstrategy filed its responsive brief in opposition, arguing that the court should dismiss the petition and award nothing to BOA because it failed to submit a detailed accounting of recoverable fees and expenses as the court had ordered. In the alternative, Microstrategy claims that the 5/6 allocation method was improper, and that if the court awards anything to BOA, it should be no greater than $316,057.78. Specifically, Microstra-tegy argues that BOA is entitled to recover only those attorney fees and expenses that BOA would “not have had to spend but for [Microstrategy’s] misconduct.” Under this rationale, Microstrategy alleges that none of the defense work attributable to the '432 patent is reimbursable because, as BOA stated, “[m]ost of the work done to defend against '432 claims 6, 9, 10 and 13 was also necessary to defend against '432 claims 1, 2, 4 and 5.” Microstrategy also argues that because BOA’s invoices are in “block billing” format, it is difficult to determine how to properly allocate the costs of defending each of the three patents. Microstrategy notes that of the 1,837 line item entries for fees, only 241 entries refer to work concerning a specific patent or patents. In addition, in the entries where more than one patent is listed, Microstrategy maintains that it is impossible to determine how much time was devoted to each individual patent. As a result, it urges the court to deny recovery of any fees related to the '432 patent in its entirety and award attorney fees and expenses of no more than $316,057.78 to BOA. On May 30, 2008, BOA filed a reply brief arguing that if it had not been forced to litigate Microstrategy’s twenty-nine claims pursued in bad faith, then it would not have incurred nearly as many expenses as it did. In addition, BOA reaffirms the reasonableness of the 5/6 allocation, and requests an additional $70,049.25 in attorney fees for preparation of its reply brief and exhibits. On June 10, 2008, Micros-trategy filed a motion for leave to file a sur-reply brief to respond to the new, hypothetical argument raised in BOA’s reply brief. Therein, Microstrategy claims that BOA still has not filed a detailed accounting of the fees and expenses as required by the court and again urges that the 5/6 allocation scheme is flawed because it allows BOA to recover costs that it would have incurred even if Microstrategy had not engaged in any misconduct. On June 20, 2008, BOA filed a response to Microstrategy’s sur-reply requesting that the court deny Microstrategy’s motion. Reasonable Fees and Expenses that May be Awarded Under § 285 Legal Standard 35 U.S.C. § 285 states, “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” In Beckman Instruments, Inc. v. LKB Produkter AB, the Federal Circuit held that one of the purposes of awarding attorney fees and expenses under 35 U.S.C. § 285 is to prevent “gross injustice” when a party has litigated in bad faith. In the instant matter, this court previously found misconduct on the part of Microstra-tegy, so that the basis for an award of attorney fees and costs is to prevent gross injustice. The Federal Circuit has broadly held that when making a § 285 award to prevent gross injustice, “the penalty imposed must in some way be related to bad faith and misconduct.” Further, the determination of the amount of the award is within the discretion of the trial court because the trial judge is “in the best position to know how severely [a party’s] misconduct has affected the litigation.” Both parties cite Beckman as favorable to their respective positions. There, the plaintiff alleged that five claims of its patent were infringed. The jury found three claims invalid and not infringed and two claims valid and infringed. In addition, the district court found the case to be “exceptional” under 35 U.S.C. § 285 and awarded all of the plaintiffs attorney fees and expenses, except for those related to expert witnesses and consultants. On appeal, the Federal Circuit held that the award of all of the plaintiffs attorney fees was improper, since only that “portion of its attorney fees which related to the vexatious litigation strategy and other misconduct,” should have been awarded. On remand, the district court re-reviewed the fees and expenses incurred during the various stages of litigation to determine the amount that should be awarded based on the defendant’s misconduct. Where the plaintiff sought expenses associated with the deposition and testimony of an expert, the court awarded 75% of the attorney fees and expenses because although the expert’s testimony was so broad and detailed that undoubtedly he would had [sic] been retained even if [defendant] had not interposed its inequitable conduct counterclaim .... much of the costs incurred by [plaintiff] in relation to [the expert’s] testimony flowed solely and directly from [defendant’s] misconduct. Although the court noted for the trial phase that calculating the plaintiffs costs related to the extra legal work necessary to counteract the defendant’s misconduct would be “simply impossible,” it awarded 40% of plaintiffs total attorney fees and expenses expended for trial. As acknowledged in Beckman, the allowable amount of expenses under § 285 “does not demand an absolutely specific accounting of the costs associated with responding to [a party’s] misconduct.” Further, when claims involve a common core of facts or are based on related legal theories, “[m]uch of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead, the district court should focus on the overall relief obtained ... in relation to the hours reasonably expended on the litigation.” Where documentation of fees is inadequate, the court still must make a reasonable award of fees under § 285, and should exercise discretion based on its experience in determining reasonable hours and reasonable fees. Analysis Microstrategy argues that BOA is not entitled to any award because the block billing invoices do not comply with the court’s order to provide a detailed summary. In the alternative, Microstrate-gy argues that BOA’s request for fees and expenses is overstated and should be reduced to $316,057.78, the amount of fees and expenses that can be directly attributed to the '796 and '033 patents. Micros-trategy criticizes the block billing format for its lack of precision regarding time charged to each patent claim. Further, Microstrategy contends that several invoice entries include general overhead costs which are typically not billed to the client, and thus should not be recoverable by BOA. Microstrategy also relies on the comment in Beckman that the court did not award the full amount of fees because “a large portion of the costs of trial would have been incurred even if [defendant] had not engaged in misconduct.” Microstra-tegy argues that even if it had not engaged in any misconduct, BOA still would have incurred fees to defend claims 6, 9, 10 and 13 of the '432 patent, and thus, a substantial portion of the fees requested by BOA is not recoverable. The court generally does not find Mi-crostrategy’s arguments convincing. The court has reviewed BOA’s invoices and concludes that the overwhelming majority of the fees and costs incurred are related to Microstrategy’s misconduct and bad faith. Although many of the entries do not address a specific patent, they describe conduct and tasks consistent with and necessary in patent litigation. Such litigation work and related fees and expenses are clearly related to Microstrate-gy’s misconduct, as twenty-nine of the thirty-three claims were found to be improperly pursued. As noted under Beckman, BOA is not required to submit “an absolutely specific accounting of the costs” associated with defending the twenty-nine claims. Therefore, the court need not nor is it required to determine precisely what fees and expenses are solely attributable to defending those patent claims made in bad faith. The court is satisfied with BOA’s submission of its extensive invoices that contain descriptions of the type of work performed, the billing rates and the amount of hours expended. Although under the block billing format, most fees and expenses are not expressly linked to a specific patent, the court, in its discretion, can determine the appropriate award. Case law only requires that “the penalty imposed must in some way be related to bad faith and misconduct.” It does not require that the legal work performed solely resulted from a party’s misconduct. Further, most of the defenses asserted against the three patents were based on “a common core of facts” and/or “related legal issues.” Thus, contrary to Microstrategy’s stance, an award for attorney fees and costs needs only to relate to its misconduct in improperly pursuing certain patent claims. In Beckman, the Federal Circuit found that significant legal expenses were incurred by the plaintiff regardless of the defendant’s misconduct, because that misconduct occurred after litigation began. This court has already eliminated substantial legal expenses incurred by BOA by limiting the award to after March 14, 2005, when the misconduct began. Unlike the plaintiff in Beckman, BOA would not have continued to incur significant legal fees absent any misconduct by Microstrategy because it would have only had to defend four claims on one patent, rather than thirty-three claims on three patents. BOA was required not only to respond to Mi-crostrategy’s allegations, but also to continue to defend against those claims and finally succeeded against all of them. The more patents that are asserted, the more complicated a case becomes, which required BOA to deal with each patent and its claims for purposes of claim construction, invalidity, and noninfringement arguments and for many damages issues. Further, the overhead costs of which Microstrategy complains amounts to a little more than $4,100 in fees. Therefore, BOA’s allocation is not inappropriate, and its submission for $2,249,387.22 in fees and costs, less the charges related to overhead costs, is granted. Cost of Filing Briefs Legal Standard and Analysis Awards under § 285 include “the fee for the reasonable time expended in preparing the elaborate fee application and briefs filed herein.” BOA requests $61,815.77 incurred in briefing its motion for fees and expenses which was completed in April 2006. BOA also requests $25,758 in fees incurred in preparing its April 15, 2008 submission. Finally, BOA requests $70,049.25 in fees and expenses incurred in responding to Mierostrategy’s opposition brief. The total amount of attorney hours expended in preparing the April 2008 submission in support of the fees and costs requested was 47.7. However, for the reply brief and exhibits, 146.7 attorney hours, over three times the initial hours, were expended. Moreover, despite the assistance from a partner, who has an expertise in attorney fees’ petitions in federal courts, and an associate for the reply brief and exhibits, primary counsel’s time nearly doubled to 85.6 hours for that submission. In support of the reply brief, a second declaration was submitted which analyzed and responded in detail to the arguments raised by Microstrategy in its answering brief. A substantial declaration had also been filed in support of the opening submission, which explained BOA’s bases for fees and costs. From a review of counsel’s two declarations and the attachments thereto, more legal evaluation and analysis were required in preparing the second declaration. The court, however, finds that the amount of attorney time expended for the reply submission to be excessive as evidenced by the time expended for the motion and briefing in support of the fee application and for the April 2008 submission. As a result, $50,825.25 is awarded in fees and expenses for the reply brief and related materials. Therefore, the total amount of fees and expenses awarded to BOA for the fee application and briefing is $138,399.02. Conclusion For the reasons contained herein, IT IS ORDERED and ADJUDGED that BOA’s submission (D.I. 273) for fees and costs is granted in part and denied in part: 1. Judgment in the amount of $2,245,263.87 for attorney fees and costs in defense of the '796 patent, the '033 patent, and claims 1, 2, 4 and 5 of the '432 patent after March 14, 2005 is entered in favor of BOA against Microstrategy. 2. In addition, judgment in the amount of $138,399.02 in attorney fees and costs for the fee application and related briefing is entered in favor of BOA against Microstrategy. IT IS FURTHER ORDERED, that since the court considered the arguments presented by Microstrategy in its motion to file a sur-reply brief (D.I. 293), that motion is moot. . See MicroStrategy, Inc. v. Bus. Objects Americas, 238 Fed.Appx. 605 (Fed.Cir.2007). . BOA arrived at this figure by giving equal weight to all three patents and splitting the cost of defense of the '432 patent equally between claims 1, 2, 4 and 5 and claims 6, 9, 10 and 13. BOA argues that this approach is the fairest. . Citing Mueller Brass Co. v. Reading Indus., Inc., 352 F.Supp. 1357, 1381 (E.D.Pa.1972). . For example, one July 21, 2005 line entry reads, "[c]onference with Rudd re: '796 and '432; discussion with J. Greco and K. Chang re: same; telephone conference with Jed Greene; telephone conference with D. Eiwan-ger, telephone conference with J. Wure: '033; telephone conference with S. Gleason; telephone conference with L. Mare: same.'' BOA was billed 8.9 hours and charged $3,083.85 for that work, but it is unknown how much of that time was spent on each activity. . Microstrategy claims that $556,417 worth of the individual time entries mention at least one of the three patents. Because of the block billing format, Microstrategy argues that all fees and expenses related to the '432 patent should be excluded, reducing the $556,417 amount to $312,550. Further, Mi- crostrategy contends that BOA may only recover $3,507.78 of the $225,825.49 expenses it seeks because the invoices refer to specific patents for only three of the 542 expense items.

6559867-7915

HARRISON L. WINTER, Chief Judge: Angeles Real Estate Co. (Angeles) sued the trustee of the bankruptcy estate of Construction General, Inc. (CGI) seeking to reclaim funds from the estate. The bankruptcy court and the district court both rejected Angeles’ claim, holding that it was a mere creditor whose only remedy lay in its share of the eventual distribution of assets to CGI’s general creditors. Angeles appealed and we reverse. I. The funds in dispute are the proceeds of a note that a third party paid to CGI. One-half those proceeds had been assigned to Angeles’ predecessor by CGI’s predecessor as payment for a prior debt. Under the assignment, CGI’s predecessor was to collect the proceeds and pay Angeles’ predecessor its half within seven days after payment by the debtor. Despite the assignment, when CGI collected the note in January, 1979, it did not convey any of the proceeds to Angeles. Instead, CGI used the money to pay its antecedent debt to the American Bank of Maryland. After CGI was adjudicated a bankrupt in May, 1979, the trustee recovered the payment to the bank because it amounted to an illegal preference. The question we must decide is whether, under these circumstances, Angeles is the owner of one-half the proceeds of the note recovered by the trustee, or merely a general creditor. II. A trustee in bankruptcy stands in the shoes of the bankrupt and succeeds only to the bankrupt’s interest in property. If the bankrupt’s title in property is limited, the trustee receives no greater interest. Pearlman v. Reliance Insurance Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962); In re Cross Electric, 664 F.2d 1218 (4 Cir.1981). Furthermore, the Bankruptcy Act specifies that the trustee’s rights and powers regarding property in the bankruptcy estate are equivalent, inter alia, to those of a judgment lien creditor. 11 U.S.C. § 544(a); 4 Collier on Bankruptcy § 544.02 (15th Ed.). Thus, if under applicable state law a judgment lien creditor would prevail over an adverse claimant, the trustee in bankruptcy will prevail; if not, he will not. Id. See also Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1956). As both parties agree, Maryland law is the applicable state law in this case. Angeles contends that these principles dictate that the bankruptcy court should order the trustee to turn over to it one-half the proceeds of the note. The assignment, it maintains, passed legal title to half the proceeds. Angeles’ interest, therefore, is superior to that of the trustee, who merely succeeds to the bankrupt’s interest. And, under Maryland law, a prior specific lien is superior to the general lien of a judgment creditor. Garner v. Union Trust Co., 185 Md. 386, 45 A.2d 106 (1945). As we discuss hereafter, we agree with this analysis. To defeat this logic, the trustee responds with the contention that Angeles, which did not record the assignment document, has only an unperfected security interest and that such an interest would be inferior to a judgment lien creditor’s under applicable Maryland law. This argument assumes, however, that Angeles’ interest is a mere security interest, defined by the Maryland Code as “an interest in personal property or fixtures which secures payment or performance of an obligation.” Ann.Code of Md., Commercial Law § 1-201. But this is not the case. Angeles’ interest in the note and its proceeds represents payment of a debt, not simply security for the payment. See In re Langerstrom, 300 F.Supp. 538 (S.D. Ill., 1969) (because a client had no intent to create an Article 9 security interest when he assigned his tax refund to his attorney as payment for services, there was no requirement that the assignment be recorded). Accordingly, Angeles’ failure to record or otherwise to perfect its interest does not affect its claim on the property. The trustee also contends that, unlike an assignment of the entire interest in a chose-in-action, a partial assignment does not create a legal interest in the assignee unless the debtor consents to the assignment. He cites Brown Shoe Co. v. Carns, 65 F.2d 294 (8 Cir.), cert. denied, 290 U.S. 695, 54 S.Ct. 130, 78 L.Ed. 598 (1933), which indicated that this was the general common law rule in 1933. It also was the Maryland rule in 1890. See Harris v. Mayor & City Council of Baltimore, 73 Md. 22, 39, 20 A. 111 (1890). No Maryland court has since considered this issue, but we think that the Maryland court would not apply this venerable decision to the facts of this case. First, the rationale for the Harris rule was protection of the obligor, not the assignor. The Harris court was concerned about subjecting debtors to the demands of two different creditors instead of one. Id. at 39, 20 A. 111. Here there is no question of prejudicing the obligor on the note. Second, the Maryland court has adopted the Restatement of Contracts in other contexts. See, e.g., Penowa Coal Sales Co. v. Gibbs & Co., 199 Md. 114, 85 A.2d 464 (1952). We think it fair to assume that Maryland now would subscribe to § 326 of the Restatement (Second) of Contracts, which provides that “assignment of a part of a right ... is operative as to that part to the same extent and in the same manner as if the part had been a separate right.” Under this reading of Maryland law, then, a legal interest in one-half the note’s proceeds passed to Angeles under the assignment. The trustee has stipulated that CGI used the actual funds collected on the note to pay the bank. It follows that recovery of the preference was a recovery of those same funds. In these circumstances, Angeles is entitled to its half of the funds, for Maryland law dictates that a prior specific lien is superior to the general lien of a judgment creditor. Garner. III. As an alternative ground of decision, we think that, even if the partial assignment did not vest a legal interest in Angeles under Maryland law, Maryland would recognize an equitable lien in Angeles’ favor. Although no Maryland court has addressed the issue, under general common law principles, a partial assignment creates an equitable lien in favor of the assignee. See National Surety Co. v. County Bd. of Educ., 15 F.2d 993, 995, (4 Cir.1926). In fact, under general common law principles, an equitable lien or equitable assignment arises whenever a debtor makes a specific appropriation of part of a specific fund to a creditor — when, in other words, the debtor relinquishes control of the part he promises to pay to his creditor. See, e.g., Union Trust Co. of Md. v. Town shend, 101 F.2d 903 (4 Cir.1939); Tobin v. Insurance Agency Co., 80 F.2d 241 (8 Cir.1935). Furthermore, Maryland recognizes equitable liens and holds that the controlling question is whether the parties intended to create a lien. Equitable Trust Co. v. Imbesi, 287 Md. 249, 412 A.2d 96 (1980). Here, the most reasonable construction of the agreement is that the parties intended that the assignee obtain a charge or lien upon half the proceeds of the promissory note. Angeles, the assignee, after all, demanded and received more than a mere promise to pay from those proceeds. It received an assignment of a one-half interest. The trustee objects that CGI did not surrender dominion of the proceeds because it was free to do whatever it wanted with them during the first seven days after receiving them. But we do not deem the right to hold funds up to seven days to be a reservation of unfettered dominion or control. Citing Collier on Bankruptcy, the trustee also argues that no equitable lien or assignment can be superior to the trustee’s interest unless the claimant can identify or trace the funds so charged. As we noted above, the trustee stipulated that CGI used the note’s proceeds to pay the American Bank of Maryland. Recovery of the preference thus was a recovery of the proceeds. See Mgrs. Finance Co. v. Armstrong, 78 F.2d 289, 291 (4 Cir.1935).

12531580-23628

RODNEY GILSTRAP, UNITED STATES DISTRICT JUDGE MEMORANDUM OPINION AND ORDER Before the Court is Defendant Cardinal Health 200, LLC's ("Cardinal Health") Rule 12(b)(6) Motion to Dismiss, Or in The Alternative Rule 12(e) Motion for More Definite Statement (the "First Demurrer") with respect to Plaintiff David Potter's ("Potter") Original Complaint (Dkt. No. 1). (Dkt. No. 4 at 1.) Also before the Court is Cardinal Health's Rule 12(b)(6) Motion to Dismiss, Or in The Alternative Rule 12(e) Motion for More Definite Statement (the "Second Demurrer") with respect to Potter's First Amended Complaint (Dkt. No. 5). (Dkt. No. 10 at 1.) Additionally, Cardinal has filed a 12(b)(6) Motion to Dismiss, Or in The Alternative Rule 12(e) Motion for More Definite Statement (the "Third Demurrer") with respect to Potter's Second Amended Complaint (Dkt. No. 20). (Dkt. No. 21 at 1.) For the reasons discussed herein, the First Demurrer is DENIED-AS-MOOT and the Second and Third Demurrers are together GRANTED-IN-PART and DENIED-IN-PART . I. BACKGROUND Potter, who is currently 70 years old, was employed as a mold maker at Cardinal Health's facility in Jacksonville, TX. (Dkt. No. 1 ¶¶ 6, 10, 11; Dkt. No. 5 ¶¶ 7, 11, 12; Dkt. No. 20 ¶¶ 7, 11, 12.) Cardinal Health terminated Potter's employment on August 31, 2018. (Dkt. No. 5 ¶ 39; Dkt. No. 20 ¶ 42.) On January 8, 2019, Potter filed his Original Complaint (Dkt. No. 1) against Cardinal Health asserting claims under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. , and the Fair Labor Standards Act ("FLSA"), 28 U.S.C. §§ 215(a)(3), 216(b). (Id. ¶¶ 1-4.) On February 12, 2019, Cardinal Health filed its First Demurrer directed at Potter's Original Complaint, seeking dismissal or a more definite statement under Federal Rule of Civil Procedure 12(b)(6) and (e) as to Potter's ADEA and FLSA claims. (Dkt. No. 4.) Potter subsequently filed his First Amended Complaint on February 19, 2019. (Dkt. No. 5.) Potter again asserted ADEA and FLSA claims. (Id. ¶¶ 1-4.) On March 15, 2019, Cardinal Health filed its Second Demurrer directed at Potter's First Amended Complaint, seeking dismissal or a more definite statement under Rule 12(b)(6) and (e) as to Potter's FLSA claims. (Dkt. No. 10.) Potter again amended his Complaint on May 2, 2019, asserting ADEA and FLSA claims. (Dkt. No. 20 ¶¶ 1-4 (Second Amended Complaint).) On May 10, 2019, Cardinal Health filed its Third Demurrer directed at Potter's Second Amended Complaint, again seeking dismissal or a more definite statement under Rule 12(b)(6) and (e) as to Potter's FLSA claims. (Dkt. No. 21.) II. LEGAL STANDARD A. Motion to Dismiss Rule 8(a)(2) requires that the pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is "plausible on its face" where the pleaded facts allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. A court must accept the complaint's factual allegations as true and must "draw all reasonable inferences in the plaintiff's favor." Lormand v. U.S. Unwired, Inc. , 565 F.3d 228, 232 (5th Cir. 2009). However, the Court need not accept as true legal conclusions couched as factual allegations. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. To be legally sufficient, the complaint must establish more than a "sheer possibility" that the plaintiff's claims are true. Id. The complaint must contain enough factual allegations to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand , 565 F.3d at 255-57. In considering a motion to dismiss for failure to state a claim, a court considers only the contents of the pleadings, including their attachments. Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir. 2000). If it is apparent from the face of the complaint that an insurmountable bar to relief exists, and the plaintiff is not entitled to relief, the court must dismiss the claim. Jones v. Bock , 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). B. Motion for More Definite Statement A court may also require a plaintiff to amend a complaint to include a more definite statement "of its claim." See Fed. R. Civ. P. 12(e). "If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement...before responding." Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). However, where "a defendant is complaining of matters that can be clarified and developed during discovery, not matters that impede his ability to form a responsive pleading, an order directing the plaintiff to provide a more definite statement is not warranted." Hoffman v. Cemex, Inc. , No. H-09-2144, 2009 WL 4825224, at *3 (S.D. Tex. Dec. 8, 2009) (citing Arista Records LLC v. Greubel , 453 F. Supp. 2d 961, 972 (N.D. Tex. 2006) ). III. DISCUSSION A. First Demurrer In light of Potter's First and Second Amended Complaints (Dkt. No. 5; Dkt. No. 20) superseding his Original Complaint (Dkt. No. 1), Cardinal Health's First Demurrer (Dkt. No. 4) is hereby DENIED-AS-MOOT . See Bosarge v. Miss. Bureau of Narcotics , 796 F.3d 435, 440 (5th Cir. 2015) ("An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading." (quoting King v. Dogan , 31 F.3d 344, 346 (5th Cir. 1994) )). Although Cardinal Health's First Demurrer sought dismissal of the ADEA and FLSA claims set forth in Potter's Original Complaint (Dkt. No. 4 at 3-6), Cardinal Health's Second and Third Demurrers only sought dismissal of the FLSA claims set forth in Potter's First and Second Amended Complaints. (See generally Dkt. No. 10; Dkt. No. 21.) Cardinal Health did not urge dismissal of the ADEA claims set forth in Potter's First and Second Amended Complaints. (See generally Dkt. No. 10; Dkt. No. 21.) Indeed, Potter's Response to the Second Demurrer notes that "[i]t is unclear if Defendant is attempting to dismiss the entire lawsuit again or just the claims based on the [FLSA]." (Dkt. No. 11 at 1.) Cardinal Health did not file a Reply in support of its Second Demurrer to clarify the issue. Accordingly, the Court finds that Cardinal Health's Second and Third Demurrers do not encompass the ADEA claims set forth in Potter's First and Second Amended Complaints. B. Second and Third Demurrer Having reviewed Potter's First and Second Amended Complaints, the Court finds that the two complaints are substantially similar, aside from paragraphs detailing a discovery dispute between the parties. (See Dkt. No. 20 ¶¶ 52-66.) See also Charette v. Box , No. 4:10-cv-98-ALM, 2011 WL 3704929, at *1 n.2 (E.D. Tex. Aug. 23, 2011) (considering "the original and amended complaints together" where "the new information in the purported amended complaint is brief and complements the original complaint without making any substantive changes"). Likewise, Cardinal Health's Third Demurrer, though directed at Potter's Second Amended Complaint, substantially overlaps with its Second Demurrer directed at Potter's First Amended Complaint. (Compare Dkt. No. 21, with Dkt. No. 10; see also Dkt. No. 21 at 1 n.1 ("[T]his Rule 12 motion is identical in substance to the Rule 12 motion filed in response to the first amended complaint.").) As such, the Court deems it proper to address both motions together. 1. FLSA Overtime Claim Cardinal Health argues that "[d]isjointed and vague references to alleged unlawful FLSA practices render Cardinal Health unable to craft a responsive pleading." (Dkt. No. 11 at 7; see also Dkt. No. 21 at 3 ("[A]bsent any allegation that the FLSA overtime or minimum wage provisions were violated, Potter has failed to state a cognizable FLSA claim.").) Cardinal Health also argues that "[t]o the extent Potter is attempting to state a claim for violation of the FLSA's recordkeeping requirement...the FLSA does not provide a private right of action for alleged recordkeeping violations." (Dkt. No. 11 at 3.) In response, Potter argues that he has "sufficiently pleaded facts to place [Cardinal Health] on notice that it has been sued for overtime and minimum wages under the FLSA." (Dkt. No. 17 at 5.) The FLSA requires covered employers to compensate nonexempt employees at overtime rates for time worked in excess of statutorily defined maximum hours. 29 U.S.C. § 207(a). Employees have the right to bring a claim for unpaid overtime. 29 U.S.C. § 216(b). To adequately state a claim for unpaid overtime under the FLSA, a plaintiff must plead: "(1) that there existed an employer-employee relationship during the unpaid overtime periods claimed; (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA's overtime wage requirements; and (4) the amount of overtime compensation due." Johnson v. Heckmann Water Res., Inc. , 758 F.3d 627, 630 (5th Cir. 2014). As an initial matter, Cardinal Health's characterization of Potter's FLSA claim as a private action for recordkeeping violations ignores the plain language of the Amended Complaint. Both the First and Second Amended Complaints expressly allege that Potter (1) "is an [sic] qualified employee who has been denied employment including wages and benefits due him," and (2) "brings this [suit] in part for violations of the Fair Labor Standards Act, in that [Cardinal Health] has failed to pay [him]...his unpaid wages, overtime, liquidated damages...." (See Dkt. No. 5 ¶¶ 2, 4; Dkt. No. 20 ¶¶ 2, 4.) Specifically, the Amended Complaint alleges that (1) Potter "was employed by [Cardinal Health until he]...was terminated on or about August 31, 2018," (2) Cardinal Health "has been an employer subject to the wage and hour provisions of the FLSA," and (3) Potter's job as a mold maker "is not exempt from the requirement that he be compensated for his hours worked...and overtime." (Dkt. No. 5 ¶¶ 38-40; Dkt. No. 20 ¶¶ 41-43.) See also Hoffman , 2009 WL 4825224, at *3 (finding similar allegations to be "factual allegation[s]-not legal conclusions-[that], if proven,...[could] give rise to a plausible claim for relief"). The Amended Complaint also alleges that Cardinal Health "has repeatedly and consistently failed to pay [Potter] overtime wages." (Dkt. No. 5 ¶ 40; see also id. ¶ 46 (stating that Potter "sent an email to Scott Martin stating in part [that his] time sheet d[id] not show any hours for 8/28 and 8/29"); Dkt. No. 20 ¶¶ 43, 49.) Potter's "normal working hours were from 7:00 a.m. to 3:00 p.m.", yet "[o]n certain occasions [Potter] would show up early to begin working." (Dkt. No. 5 ¶¶ 43- 44; Dkt. No. 20 ¶¶ 46-47.) "Based on a wage of $ 26.88 per hour x 1.5 hours = $ 40.32 a week for 128 weeks [sic] is $ 5,160.92 due and owing, when the records show 1.5 hours a week was not paid." (Dkt. No. 5 ¶ 48; Dkt. No. 20 ¶ 51.) Based on these alleged facts and making reasonable inferences in favor of Potter as the non-movant, the Court finds that Potter has sufficiently pled an FLSA claim for overtime wages. Accordingly, Cardinal Health's Second and Third Demurrers are hereby DENIED as to Potter's FLSA wage claim. 2. FLSA Collective Relief Claim Cardinal Health argues that "non-specific allegation[s] hinting at collective relief" render Potter's First and Second Amended Complaints "so vague and ambiguous that it is unclear whether Potter is bringing this lawsuit as an individual or collective action under the FLSA." (Dkt. No. 10 at 4; Dkt. No. 21 at 4.) Potter's allegation that he "was the only employee required to keep time records....simply underscores that others are not similarly situated to him, making collective relief improper." (Dkt. No. 21 at 3.) Cardinal Health also argues that Potter "does not allege a particular policy or practice that supposedly resulted in him not being paid for all hours he supposedly worked." (Dkt. No. 10 at 4-5; Dkt. No. 21 at 5.) Cardinal Health faulted Potter's Original Complaint for the same reasons and requested that the Court order Potter to provide a more definite statement. (Dkt. No. 4 at 4.) Potter does not offer any response as to whether he is seeking collective relief. (See generally Dkt. No. 11.) Nor does Potter's First Amended Complaint expound upon or clarify the basis for a collective action in view of his Original Complaint. (Compare Dkt. No. 1 ¶ 4, with Dkt. No. 5 ¶ 4, with Dkt. No. 20 ¶ 4.) However, Potter's Second Amended Complaint includes nine paragraphs detailing the parties' dispute over the scope of discovery as to collective relief under the FLSA. (See Dkt. No. 20 ¶¶ 55-63.) Section 216(b) of the Fair Labor Standards Act authorizes a plaintiff to bring a collective action on behalf of similarly situated persons. 29 U.S.C. § 216(b). Courts have used two approaches to determine whether collective treatment under § 216(b) is appropriate. The first approach is the two-stage method for class certification set forth in Lusardi v. Xerox, Corp. , 118 F.R.D. 351 (D.N.J. 1987). The second approach refers to the "spurious" class action procedure outlined in Shushan v. Univ. of Colorado , 132 F.R.D. 263 (D. Colo. 1990). Although the Fifth Circuit has discussed both methods, it has expressly declined to endorse a specific approach. Mooney v. Aramco Servs. Co. , 54 F.3d 1207, 1213-1216 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa , 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). The majority of district courts within the Fifth Circuit have adopted the Lusardi approach. See Vassallo v. Goodman Networks, Inc. , No. 4:15-cv-97, 2015 WL 3793208, at *2 (E.D. Tex. June 17, 2015). Under the Lusardi two-step approach, certification for a collective action is divided into two phases: (1) the notice stage; and (2) the opt-in, or merits, stage. Mooney , 54 F.3d at 1213-14. In the notice stage, the district court must determine whether to conditionally certify the class and issue notice to the putative class members. Allen v. McWane, Inc. , No. 2:06-cv-158, 2006 WL 3246531, at *2 (E.D. Tex. Nov. 7, 2006). Plaintiffs bear the burden of presenting preliminary facts showing that a similarly situated group of potential plaintiffs exist. Id. "This preliminary factual showing must be based on competent evidence in order to avoid stirring up unwarranted litigation." Id. However, since courts only have minimal evidence at the pleading stage, the standard for conditional class certification is a "fairly lenient one." Mooney , 54 F.3d at 1213. No specific definition of the term "similarly situated" exists in the FLSA. In the Fifth Circuit, however, some district courts have recognized that a key consideration for satisfying this standard is whether substantial allegations exist that potential members were together the victims of a single decision, policy, or plan. See, e.g. , Richardson v. Wells Fargo Bank, N.A. , No. 4:11-cv-00738, 2012 WL 334038, at *2 (S.D. Tex. Feb. 2, 2012). In making this determination, courts should consider whether there is evidence that the individual plaintiffs had similar "factual and employment settings" and whether there was a "common policy or plan" that affected the potential plaintiffs. Id. "In addition, the court should satisfy itself that the potential plaintiffs are similarly situated with respect to their job requirements and pay positions." Tice v. AOC Senior Home Health Corp. , 826 F. Supp. 2d 990, 995 (E.D.Tex. 2011). Although the preliminary factual stage under Lusardi is lenient, it still "must be based on a personal knowledge of the facts." Id. In view of Lusardi , courts are split on whether an FLSA collective relief claim may be properly challenged under Rule 12(b)(6). See Creech v. Holiday CVS, LLC , No. 11-CV-46, 2012 WL 4483384, at *2, 2012 U.S. Dist. LEXIS 144838, at *6-7 (M.D. La. Sept. 26, 2012) ("[O]pinions from district courts ...are inconsistent, arriving at different conclusions as to...whether a motion to dismiss or collective action certification is the proper stage in the proceedings to address the issue."). Some courts hold that Rule 12(b)(6) is not an appropriate vehicle to challenge the sufficiency of class allegations because the plaintiffs have not yet moved for conditional certification. See Barrett v. Forest Labs., Inc. , No. 12-CV-5224-RA, 39 F.Supp.3d 407, 425-26, 2014 WL 4058683, at *9 (S.D.N.Y. Aug. 14, 2014) ; Lang v. DirecTV, Inc. , 735 F. Supp. 2d 421, 434-36 (E.D. La. 2010). Since the plaintiffs have not had the opportunity to develop the record at the Rule 12(b)(6) stage, a "challenge on the pleadings [is an] end-run [around] the certification process." Lang , 735 F. Supp. 2d at 435-36. As such, "plaintiffs need not plead facts to support the propriety of a collective action to survive a Rule 12(b)(6) motion[ because] [w]hether [a case should] proceed[ ] collectively is appropriat[ly]...addressed when plaintiffs move for conditional certification." Hoffman , 2009 WL 4825224, at *4. Other courts "have found that a 12(b)(6) analysis of class allegations is appropriate" because " Rule 12(b)(6) requires that a plaintiff give the defendant fair notice of the putative class, which is a much different inquiry than that at the conditional class certification stage." Huchingson v. Rao , No. 5:14-cv-1118, 2015 WL 1655113, at *3 (W.D. Tex. April 14, 2015) ; see also Flores v. Act Event Servs., Inc. , 55 F. Supp. 3d 928, 934 (N.D. Tex. 2014) ; Dyer v. Lara's Trucks, Inc. , No. 1:12-cv-1785-TWT, 2013 WL 609307, at *3 (N.D. Ga. Feb. 19, 2013). While this Court agrees that, at the pleading stage, plaintiffs asserting FLSA collective actions must make plausible allegations that similarly situated employees exist, this requirement is a low bar under Federal Rule of Civil Procedure 8. So long as the plaintiff's complaint contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,' " see Iqbal , 556 U.S. at 678, 129 S.Ct. 1937, there is no basis for requiring more particularity in the collective action context. Since the Lusardi standard already sets a low bar for class certification, it would be inconsistent to apply a heightened-pleading standard to FLSA collective action complaints. See Craven v. Excel Staffing Serv., Inc. , No. CIV.A. H-12-2860, 2014 WL 345682, at *7 (S.D. Tex. Jan. 30, 2014) ("Even at the notice stage, usually, because discovery has not yet occurred, 'a fairly lenient standard' is applied and courts do not review the underlying merits of the action in deciding whether to conditionally certify the class." (citing Mooney , 54 F.3d at 1214 n.8 )). However and on balance, this Court is persuaded that Potter's First and Second Amended Complaints do not provide Cardinal Health with fair notice of a collective action under the FLSA. The Complaints simply allege that Cardinal Health "has failed to pay [Potter] and others similarly situated for continuous workday activities which are integral and indispensable to their principal activities," without providing Cardinal Health notice as to the scope of Potter's proposed class. (Dkt. No. 5 ¶ 4; Dkt. No. 20 ¶ 4.) Cf. Ridley v. Regency Vill., Inc. , No. CV H-17-974, 2018 WL 1334813, at *7 (S.D. Tex. Mar. 15, 2018) (finding a reasonable belief that other aggrieved individuals existed where there was "four named plaintiffs in th[e] case[ and] twenty-three other individuals [who] ha[d] already opted into the suit"); Butler v. TFS Oilfield Servs., LLC , No. SA-16-CV-1150-FB, 2017 WL 7052308, at *7 (W.D. Tex. May 17, 2017), adopted , No. CV SA-16-CA-1150-FB, 2017 WL 7052276 (W.D. Tex. June 9, 2017) (finding a claim brought by three drivers seeking to certify a class of "similarly situated drivers allegedly employed by [d]efendants" and "subject to the same policy of failing to pay for all overtime hours" to be "sufficient to survive a Rule 12(b)(6) challenge"). Rather, the First and Second Amended Complaints seek relief for a speculative class by "set[ting] an example to other[ employers] contemplating such [violative] conduct." (See Dkt. No. 5 ¶ 34; Dkt. No. 20 ¶ 37.) Ostensibly any employee of Cardinal Health (former, current, or future) could be swept into Potter's class. Without any limiting parameters, discovery could easily devolve into a fishing expedition in an effort to cobble together a class. As such, Potter's First and Second Amended Complaints fail to meet the low bar of Rule 8 to provide Cardinal Health with sufficient notice of an FLSA collective action claim. Accordingly, the Court finds that Potter has not plead a plausible claim for collective relief under the FLSA. Additionally, the Court is persuaded that dismissal under Rule 12(b)(6) is warranted instead of ordering Potter to provide a more definite statement under Rule 12(e). Potter has had the benefit of Cardinal Health's vagueness objection as set forth in the First Demurrer and the Second Demurrer, yet Potter did not provide a more definite statement as to a collective relief claim in his Second or Third Amended Complaints. Moreover, the parties' June 20, 2019, discovery deadline is looming, and Cardinal Health has yet to file an Answer in this case nor has Cardinal Health engaged in substantive discovery as to Potter's other FLSA claims. (See Dkt. No. 12 at 3; see also Dkt. No. 20-10 ("We will not be producing information related to the FLSA allegations until the court rules on our most recent 12b6 [sic] motion.") (Email from counsel for Cardinal Health to counsel for Potter).) Accordingly, the Court hereby ORDERS that any claim for collective relief set forth in Potter's First or Second Amended Complaints is DISMISSED WITHOUT PREJUDICE . 3. FLSA Retaliation Claim Cardinal Health argues that "Potter does not allege facts that demonstrate he engaged in protected activity" that supports an FLSA retaliation claim. (See Dkt. No. 10 at 2, 3; Dkt. No. 21 at 2.) The activities set forth in the Complaint are "informal, nonspecific complaints that do not directly invoke FLSA violations," and thus are not protected activities. (See Dkt. No. 10 at 2; Dkt. No. 21 at 3.) In response, Potter argues that both his email and oral complaints sufficiently put Cardinal Health on notice that it could be subject to a later claim of retaliation. (Dkt. No. 11 at 7.) Potter also argues that "[t]wo days after [he] sen[t] [an] email [complaining of missing hours on his timesheet], [he] was asked to sign a severance agreement that he ha[d] been paid for all time worked." (See id. at 6.) It is unlawful under the FLSA for an employer to "discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter." 29 U.S.C. § 215(a)(3). To state an FLSA retaliation claim, a plaintiff must demonstrate: "(1) participation in protected activity under the FLSA; (2) an adverse employment action; and (3) a causal link between the activity and the adverse action." See Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 624 (5th Cir. 2008).

3506004-25227

JUDGMENT AND MEMORANDUM OPINION NOLAND, District Judge. This cause came before the Court for trial without a jury on July 9, 1973. Plaintiffs, the Indiana State Employees Association, seven former employees and one current employee of the Indiana Department of Public Instruction, have brought this action for injunction, declaratory relief, and damages for the purpose of challenging their discharge from employment with the Department, purportedly motivated or threatened on the basis of their political party affiliation. It is asserted that the discharge of these employees for such reason is or would be violative of their rights to freedom of association, equal protection, and due process as secured to them by the First and Fourteenth Amendments to the United States Constitution and by Article 1, Sections 9, 12 and 23 of the Constitution of the State of Indiana. The Court, after consideration of the entire record, including the testimony, exhibits, and memoranda of counsel, concludes that no constitutional rights of the plaintiffs herein have been infringed by their discharge from public employment with the State of Indiana. . Defendant Dr. Harold Negley, a Republican, was elected Superintendent of Public Instruction in November 1972 over the incumbent Democrat, John J. Loughlin. Continuity during the change in administration was provided by Dr. Negley’s appointment as an Assistant Superintendent in January 1973. On defendant Negley’s assumption of office as Superintendent on March 15, 1973, the employment of six of the individual plaintiffs was terminated. Each individual plaintiff is asserted to be either a Democrat or an Independent. None of them were within Indiana’s statutory merit system, and each served at the pleasure of the Superintendent of Public • Instruction. Plaintiffs contend that Illinois State Employees Union, Council 34 v. Lewis is controlling in the present case. In Lewis, a large number of employees of the Illinois Secretary of State’s office, “building employees, clerical workers, license examiners and the like,” were summarily dismissed when a Republican was appointed by the Governor to complete the unexpired term of a Democratic Secretary of State who had died in office. The discharged employees brought suit seeking reinstatement. The trial court granted defendant’s motion for summary judgment in spite of ninety-four affidavits filed in opposition which all tended to indicate that plaintiffs had been discharged on the basis of their political affiliation. Five of the affiants asserted that they had been requested to change their party affiliation as a condition for continuing in their employment. On appeal, the Court reversed, holding that these five affidavits created a genuine issue of material fact and that the record therefore did “not support a factual finding that no plaintiff was dismissed for an impermissible reason or the legal conclusion that defendant was justified in prescribing active support of the Republican Party as a condition of continued public employment.” Plaintiffs have drawn from Lewis the proposition that if the individual plaintiffs’ positions were non-policy making ones, they cannot permissibly be discharged from public employment on the basis of their political party affiliation. Assuming initially that plaintiffs have correctly stated the test to be derived from Lewis, the facts relative to the duties of each individual plaintiff should be set out as they were developed at trial. Plaintiffs John J. Day and C. Michael Pitts were employed until March 15, 1973 as Title I Consultants in the Federal Projects Division of the Department at annual salaries of $13,300. Their duties included: (a) processing grant applications from local educational agencies with respect to millions of dollars in federal grant funds awarded on approval of the Department under Title I of the Elementary and Secondary Education Act of 1965; (b) conducting program reviews through site visits to local educational agencies; *and (c) participating in the drafting of the state plan concerning federal grants Plaintiff Ross B. Norrick, age 66, was employed until March 15, 1973, as a Title III Consultant in the Federal Projects Division at an annual salary of $13,936. Though his duties pertained to Title III of the National Defense Education Act, they were functionally the same as those performed by plaintiffs Day and Pitts with respect to Title ! of the Elementary and Secondary Education Act. Defendant assigned as his reason for discharging plaintiff Norrick his belief that plaintiff Norrick was not effective as a consultant Defendant Negley testified that up to the date of the trial he had been of the opinion that plaintiff Norrick was a Republican Plaintiffs Day, Pitts, and Norriek asserted that they were not policy-making employees In support of this conclusion, plaintiffs testified that their duties were so completely governed by statutes, regulations, and guidelines that they were allowed no room for discretion. Such a conclusion is hardly credible. Plaintiffs’ own exhibits indicate that they were required to exercise an informed discretion in evaluating the merits of applications for millions of dollars in grants sought by numerous and diverse local agencies. Their positions were not rendered non-policy mak ing by the fact that many of their decisions were subject to formal approval by their superiors. That this approval was generally perfunctory in nature is suggested by defendant Negley’s statement that there would have to be something markedly wrong with a consultant’s recommendation before his superior would fail to follow it. Therefore, though their decisions were subject to higher review and approval, this does not mask the fact that their cumulative decisions in large part determined the policy of the Department toward, and thus the extent of Indiana’s participation in, the Title I and Title III grant programs. More pertinent to this cause is testimony of defendant Negley that under his administration consultants, in addition to the functions they performed under previous administrations, will be expected to make recommendations as to fund expenditures in specific areas and as to the allocation of available funds. Thus, while Federal Projects consultants were policy making employees under the previous administration, their policy input would appear to be even more pronounced under the current administration. Plaintiff William E. Wallace was employed until March 15, 1973 as the Title I Coordinator in the Federal Projects Division at an annual salary of $13,900. Within the hierarchy of the Division, his position was functionally that of assistant to the Director. Plaintiff Wallace’s duties appear to have been similar to those of the consultants discussed above, though exercised in the form of coordination and review. Defendant Negley testified that the coordinator participates in making or can make almost the entire recommendation as to the re-allocation of Title I funds between such agencies as the ■ public schools and the Department of Corrections. It appears therefore that he too occupied a policy making position with the Department and that the policy input from that position will be emphasized under the current administration. The defendant stated that the basis for his decision to discharge plaintiff Wallace was, among several other nonpolitical factors, his reputation for conducting his various personal businesses from his office while employed by the Department. The credibility of his testimony to this effect is bolstered by plaintiff’s testimony that he had interests in an apartment rental business, an Amway Products sales business, and a gift shop, and that he used his office telephone with respect to all three of these businesses while employed with the Department. Plaintiff Marie (Visher) Bonvillain was employed until March 15, 1973, as the Federal Projects Coordinator for the Special Education Division of the Department at an annual salary of $13,390. In that position she served essentially as an assistant to the Director. Her duties included correlating all of the Division’s projected activities, processing grant applications,. drafting the Division’s annual report, and providing advisory assistance to grant applicants. Under the current administration, the person holding that position is additionally required to evaluate the use of federal funds with respect to each project, to determine its effectiveness, and assist in determinations of fund utilization between various programs. Therefore, under the administration of Dr. Negley, the holder of plaintiff Bonvillain’s position is required to share in the exercise of policy determination with respect to program evaluations and recommendations, allocations and reallocations of funds, and interpretations of various and voluminous rules, regulations and guidelines applicable to the Division’s special education programs. It appears then that plaintiff Bonvillain occupied a policy making position previously, and that the policy making element of her successor’s duties has been considerably expanded. Plaintiff Ronald E. Drury was employed until March 15, 1973 as the State Supervisor for Adult Education at an annual salary of $13,390. His duties included approving applications for courses, arranging funding for such courses, traveling throughout the state to review plans for and increase the number of adult education programs. Under the current administration, the new State Supervisor is required to evaluate the local adult educational programs in terms of funds expended, make recommendations as to allocation and re-allocation of funds and interpret voluminous rules and regulations applicable to adult secondary education. Under previous administrations the position has been a policy making one. It is apparent that under the current administration the policy in-put from the State Supervisor will be more strongly emphasized than in the past. Plaintiff Jonetta C. Holland is employed as a bookkeeper-secretary in the Special Education Division of the Department. On January 10, 1973 she was informed that her services with the Department would not be required after defendant Negley took office. At trial defendant Negley testified that his decision to discharge plaintiff Holland was based on an erroneous assessment of her effectiveness received from Robert Gad-berry, a Democrat, Director of the Division of Accounting and Business Management, but that this assessment was changed when questioned by Gilbert Bliton, Director of the Division of Special Education. Defendant Negley stated at the preliminary injunction hearing that he had determined to withdraw his notice, and- that defendant Holland could continue working for the Department, a decision that she appears to have accepted. The evidence does not indicate a threat that she will be discharged for political or any other reasons. Therefore, the Court now finds in favor of the defendant as to plaintiff Holland. Plaintiff Thomas C. Abeel was employed by the Department until June 3, 1973 as the Director of the Neighborhood Youth Corps program at an annual salary of $11,284. It is asserted that plaintiff Abeel occupied a non-policy making position. In view of plaintiff’s own exhibits, a contrary conclusion is compelled. It appears that as Director of the program, plaintiff Abeel exercised broad discretion in initiating, implementing and evaluating programs within fund limitations and taking into consideration the varying needs of different geographic areas. The Neighborhood Youth Corps program was federally funded, with the federal government paying $8,463 as its share of plaintiff Abeel’s salary. As indicated by Defendant’s Exhibit A and the identical document included in Plaintiff’s Exhibit No. 45, the contract under which the program received federal funds amounting to ninety percent of its 1.6 million dollar budget ended on June 3, 1973. Defendant Negley testified that plaintiff Abeel was not the only Department employee whose employment was terminated by the ending of the contract. It is apparent that plaintiff Abeel’s termination was dictated by fiscal rather than political considerations. As a result, plaintiff Abeel appears to assert not that political affiliation was the basis for his discharge, but that it should be the basis for his retention. From this statement of the facts, based upon the more credible and the uncontradicted testimony and exhibits, the conclusion is compelled that the discharged plaintiffs in fact occupied policy making positions with the Department of Public Instruction. Further, it is clear to the Court that the policy making character of these positions is even more pronounced under the current administration. Plaintiffs have asserted that they were so constrained by statute and regulation that they were mere administrative technicians. The Court cannot accept such a theory without necessarily reaching the strange conclusion that defendant Negley is also a non-policy making employee. Clearly, the policies here involved are not those of Congress, the committee which drafted the grant authorizing legislation, the Department of Labor, or the Department of Health, Education and Welfare, but are the local policies of the Indiana Department of Public Instruction. These plaintiffs were not building employees, clerical workers, license examiners and the like. Their positions were highly responsible ones. When local school system administrators sought advice or interpretation from the Department, they contacted these plaintiffs. Plaintiffs planned, sought approval, implemented, supervised and evaluated programs involving the expenditure of millions of dollars of public funds. They performed a portion of the Department’s required and discretionary public business. They were in fact a part of that body of officers and employees which constitutes the public face of the Department. Plaintiffs’ reliance on the distinction between policy-making and non-policy-making positions arises from language in Lewis wherein the Court stated: “Plaintiffs properly do not challenge the public executive’s right to use political philosophy or affiliation as one criterion in the selection of policy-mak ing officials.” Such reliance is nearsighted in that it ignores the succeeding sentence in the opinion which states that “Moreover, considerations of personal loyalty, or other factors besides determination of policy, may justify the employment of political associates in certain positions.” Though these plaintiffs clearly occupied policy-making positions, the Court foresees that many cases could arise wherein such a distinction could not practically be made. In those cases consideration of “other factors” would be appropriate. If such a distinction must be made, a more useful, and more accurate, one to be drawn from Lewis would be the distinction between employees performing or exercising public duties as opposed to those performing merely routine functions not requiring the exercise of an informed discretion or the formulation of underlying rationales for government action. During their employment with the Department, the plaintiffs herein could have been classified either as policy-making employees or as employees exercising the public functions of the Department. More pertinently, their successors fit even more clearly within these classes. In accordance with the test propounded by the plaintiffs, the Court need not therefore determine whether their dismissals were politically motivated. The Court concludes, however, that plaintiffs’ reliance on Lewis is misplaced. Lewis was centered on the determination of whether issues of material fact were there present which would render summary judgment inappropriate. In contrast, plaintiffs herein have had full opportunity to resolve the material factual issues in their favor in the course of a two-day hearing on their application for a preliminary injunction and, subsequently, during a three-day trial. Further, while none of the individual plaintiffs herein have claimed that they were requested or required to change their political affiliation, in Lewis, of the ninety-four affiants asserting politically motivated discharge, only the five alleging pressure to change political affiliation were found by the court of appeals to present a material issue of fact rendering improper a trial court finding that no plaintiff was dismissed for an impermissible reason. It is apparent that the court of appeals intended to limit Lewis to its facts, and that its holding therein is therefore not applicable to the quite different facts of the present case. The individual plaintiffs assert that the alleged political motivation for their discharge is violative of their right to freedom of association. However, as indicated above, none of the individual plaintiffs have claimed that an attempt was made to change their political affiliation. Their employment status has changed, but, presumably, their political party affiliation or lack thereof remains the same. What plaintiffs are in fact asserting is that discharge from public employment must be politically neutral. Such an assertion can no longer be answered simply by echoing Justice Holmes to the effect that plaintiffs have no right to public employment. The analysis must be taken a step further. The Court must determine whether the plaintiffs were discharged for an impermissible reason. As the Court stated in Norton v. Blaylock “It is established by now that a State may not constitutionally impose arbitrary or discriminatory employment criteria and may not in general condition public employment upon the willingness of an employee or would-be employee to forego the exercise of rights protected by some of the first ten amendments to the Constitution as brought forward into the 14th Amendment.” There is not present here (for certainly it is not alleged) the discharge of any plaintiff motivated by racial or religious factors or decided on the basis of sex or to compel plaintiffs to forego the exercise of constitutionally protected rights. A discharge from public employment so motivated would not be constitutionally permissible. However, discharge based on political affiliation, by itself, has not been held constitutionally impermissible, and thus in the absence of controlling civil service or tenure legislation, the Constitution does not provide job security for public employees situated as are the individual plaintiffs herein. To the extent that political patronage has been regarded in both state and federal government as a public evil, it has equally been considered a matter for executive and legislative rather than judicial reform. In Indiana, public employee selection and tenure is largely governed by a complex series of merit statutes and percentage restrictions on patronage appointments. No agency operating under the provisions of the State’s Bi-Partisan Personnel System may employ members of a single political party comprising more than sixty percent of its personnel in each pay grade. Separate statutes require certain other state agencies to maintain a fifty percent limitation on employees adherent to any one political party. A number of state agencies and professional employees operate under individual merit statutes. Representative of these are the State Police Department, professional engineers employed by the state, and professional and technical personnel of the Department of Natural Resources. Numerous state agencies operate under the merit provisions of the State Personnel Act. This complex system of merit requirements for state employment and limitations upon political patronage has been enacted by the State Legislature at an accelerating rate beginning with the initial enactment of the State Personnel Act in 1941. The Constitution does not require judicial superimposition upon this statutory scheme of an all inclusive merit or tenure system. Though only eight of the Department’s hundreds of employees have joined this action, it is clear that this could well be a test case through which plaintiffs would have this Court impose an absolute tenure system of public employment upon the State of Indiana. It is clear that plaintiffs are not the only parties whose interests will be affected by the outcome of this action. The public, as the consumer of governmental services, also has an interest to be considered. What is required is a balancing of interests of employees as a part of state government, with the interests of the public at large, in maintaining a governmental instrument responsive to the will of the people as it may be manifested in elections from time to time. If the plaintiffs were asking that the Court by judicial order institute a civil service system similar to the federal system, it would likely be clear that this could not be accomplished. On the other hand, the plaintiffs are requesting an order from this Court wherein the results will be in effect a tenure system without the benefits of having first imposed merit requirements upon those who seek and hold the position in question. 1945: Merit system created for the State Police Department. 1947: Employment of professional engineers placed on a merit basis. 1961: Department of Data Processing placed under a fifty percent party limitation, Department of Mental Health placed under the State Personnel Act. Many positions of state employment, such as those of the discharged plaintiffs, are exempted from statutory protection in Indiana and other states, because a new administration taking office is only able to carry out its policies by replacing certain officeholders. The newly elected holder of a constitutional office such as that of the Superintendent of Public Instruction, has a strong interest in selecting personnel compatible with his own views as to the performance of the duties of his department. The Superintendent exercises a part of the state’s sovereign power. In the proper exercise of his duties, it is essential that he have the opportunity to appoint department personnel in whom he has confidence. It would not be in the interest of good government for this Court to hold that political affiliation cannot be a factor, or in some cases a primary factor,, in making personnel determinations. Such a decision would have serious adverse effects upon the conduct of state and local government. Government employees terminated for budgetary (like plaintiff Abeel) or other non-political reasons would be encouraged to bring actions asserting that their coincidental membership in an “out” political party was the real reason for their termination. As Judge Campbell noted in Lewis: 1965: Merit system created for employees of tne Department of Natural Resources. 1971: Bi-partisan Personnel System created, separate bi-partisan personnel system created for State Highway Commission, examiners of the Department of Financial Institutions placed under a fifty percent party limitation, Department of Corrections placed under the 'State Personnel Act. “Any and all such employees who are discharged can state an actionable claim in the federal district court by simply alleging (as plaintiffs have done here) that the discharge was caused by political party affiliations or activities. “Considering that there are thousands of state, county and municipal employees not covered by civil service, and that changes of political administration occur in many departments of state and local government after every election, the volume of potential litigation which could result from our decision truly becomes catastrophic.” Employees whose employment resulted from political or other considerations unrelated to job competence would be locked into their jobs to the extent that their performance was not so abysmally incompetent as to result in dismissal for cause. A solidified state bureaucracy would be created which would be impervious to the popular will. Thus the periodically expressed desire of the electorate for sweeping change in the policies, personnel and performance of public administration would be limited in its effect to public employees of the highest echelon. The Court is aware of the limitations Of the patronage system as a means of selecting public employees. It must conclude however, that a judicial decision aimed at abolishing this system, to the extent that it may still exist within the State of Indiana, would invade the functions of the State’s legislative and executive branches without serving the cause of improved state government. The foregoing opinion shall constitute the Court’s findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure. Accordingly, judgment is now entered in favor of the defendant and against the plaintiffs; plaintiffs’ complaint is hereby Dismissed, and costs herein are assessed against the plaintiffs. . The Indiana State Employees Association, Inc., is a labor organization composed of employees of the State of Indiana, including the individual plaintiffs herein, organized under Indiana law as a not-for-profit corporation.

12266058-23051

McKEAGUE, J., delivered the opinion of the court in which KEITH and STRANCH, JJ., joined. STRANCH, J. (pg. 831-32), delivered a separate concurring opinion. OPINION McKEAGUE, Circuit Judge. Despite having had its position derailed by every federal court to date, the Department of Labor’s Administrative Review Board steams ahead. The Board interprets a retaliation clause in the Federal Railroad Safety Act (FRSA)—located in a recent amendment regarding “Prompt medical attention,” 49 U.S.C. § 20109(c)—to provide sick leave to all railroad employees for off-duty injuries and illnesses. In this case, the Board’s broad interpretation meant Webster Williams, Jr,—a Grand Trunk employee with a non-work-related history of anxiety and depression'— was granted relief from his termination for six collectively-bargained-for-as-unexcused absences because he was “following .... a treatment plan of [his] treating physician.” 49 U.S.C. § 20109(c)(2). Traditional tools of statutory interpretation lead us to a different conclusion: subsection (c)(2), just like its preceding subsection (c)(1), applies only to on-duty injuries. Thus, we grant the petition and remand with instructions that the proceeding below be dismissed. I Webster Williams, Jr. has a lifelong history of anxiety and depression. This history pre-dates his employment with Grand Trunk Western Railroad Company (Grand Trunk), where Williams worked as a locomotive engineer from 1995 until his termination for excessive absences in 2012. In 2006, Williams began seeing Dr. John Bernick for a variety of conditions, including hypertension, insomnia, anxiety, and depression. As a part of his treatment plan, Dr. Bernick prescribed Xanax for Williams to take as a “stop gap” measure when Williams felt he needed to take the medication for his anxiety and depression. But he did so with two additional instructions: first, he referred Williams to a psychiatrist for further treatment; second, he advised: Williams that in addition to taking Xanax, he “shouldn’t work” during an anxiety episode if he would not feel safe. In December 2011, Williams missed eight days of work because of his anxiety and depression. Although Williams’s absences comported with at least part of Dr. Ber-nick’s treatment plan for his medical conditions, Grand Trunk deemed six of these missed work days to be “unexcused absences” and terminated Williams in January 2012 for excessive absenteeism. On March 1, 2012, Williams filed a complaint with the Occupational Safety and Health Administration (OSHA) for wrongful retaliation and termination. On February 6,2013, OSHA dismissed the complaint because Williams’s absences for a “non-work-related illness” did not constitute qualifying “protected activity.” Williams appealed OSHA’s dismissal to an administrative law judge (ALJ) on February 25, 2013. After an evidentiary hearing and -a review of the parties’ briefs, on August 11, 2014, the ALJ held that Williams had engaged in protected activity because he was following the treatment plan of his physician and the protected activity was a factor in Grand Trunk’s decision to terminate Williams’s employment. Thus, the ALJ awarded damages and attorney’s fees to Williams. The ALJ based his finding that Williams’s treatment plan was protected—even though it was for an off-duty illness—on the Administrative Review Board’s holding in Bala v. Port Authority Trans-Hudson Corp., No. 12-048, 2013 WL 5872050 (Admin. Rev. Bd. Sept. 27, 2013). Grand Trunk appealed the ALJ’s decision to the Board on August 21, 2014. The Board affirmed the ALJ’s decision in Williams v. Grand Trunk W. R.R. Co., No. 2016 WL 7742872 (Admin. Rev. Bd. Dec. 5, 2016), and declined to apply the Third Circuit’s decision in Port Authority Trans-Hudson Corp. v. Sec’y, U.S. Dep’t of Labor, 776 F.3d 157, 161-62 (3d Cir. 2015) (PATH), which held that § 20109(c) only applies to .treatment plans for on-duty injuries. This petition for review followed. II “A petition for review of an order entered by the Board pursuant to the FRSA is governed by the Administrative Procedure Act.” Norfolk S. Ry. Co. v. Perez, 778 F.3d 507, 511 (6th Cir. 2015) (citing 49 U.S.C. § 20109(d)(4)). The primary question this case presents is one of statutory interpretation. This is a question of law we review de novo. Id. at 511 (“[T]he Board’s legal conclusions are reviewed de novo.”). Everyone agrees that the FRSA was amended in 2008 to provide railroad workers with additional protections for on-duty injuries. But does a retaliation provision in the FRSA—nested in a section providing for “Prompt medical attention,” 49 U.S.C. § 20109(c)—encompass a physician’s treatment plan for off-duty injuries? The Board argues it does; Grand Trunk argues it does not. “We begin, as in any case of statutory interpretation, with the language of the statute.” CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277, 283, 131 S.Ct. 1101, 179 L.Ed.2d 37 (2011) (citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010)). The relevant statutory section provides: (c) Prompt medical attention.— (1) Prohibition.—A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment. If transportation to a hospital is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care. (2) Discipline.—A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier’s refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to Federal Railroad Administration medical standards for fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier’s medical standards for fitness for duty. For purposes of this paragraph, the term “discipline” means to bring charges against a person in a disciplinary proceeding, suspend, terminate, place on probation, or make note of reprimand on an employee’s record. 49 U.S.C. § 20109(c) (emphasis added). Of course, “[i]f the statutory language is plain, we must enforce it according to its terms.” King v. Burwell, — U.S. —, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (citing Hardt, 560 U.S. at 251, 130 S.Ct. 2149); see also Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’ ” (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981))). “But oftentimes the ‘meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.’ ” King, 135 S.Ct. at 2489 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000)). “[W]hen placed in context,” id., the plain meaning of subsection (c)(2), which prohibits “an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician,” proves elusive. Thus, we must rely upon “traditional tools of statutory interpretation.” Sierra Club v. EPA, 793 F.3d 656, 665 (6th Cir. 2015). The Board primarily cites to the so-called Russello structural canon; Grand Trunk relies upon other textual context and structure, the absurdity canon, and the legislative history. These tools provide a framework for our analysis. A The Board’s argument depends heavily on one textual observation: the language under subsection (c)(1) includes a limitation—“A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment”—while subsection (c)(2) contains no such limitation. The Board cites to Russello v. United States, 464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) and its progeny, which explained that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Id. at 23, 104 S.Ct. 296; see, e.g., Hardt, 560 U.S. at 252, 130 S.Ct. 2149; Allison Engine Co. v. U.S. ex rel. Sanders, 553 U.S. 662, 671, 128 S.Ct. 2123, 170 L.Ed.2d 1030 (2008); see also United States v. Detroit Med. Ctr., 833 F.3d 671, 678 (6th Cir. 2016); Moses v. Providence Hosp. & Med. Ctrs., Inc., 561 F.3d 573, 580 (6th Cir. 2009). While the Board’s reliance on the Russello structural canon has some traction, its interpretation ultimately goes off the rails, effectively stranding the caboose from its engine. Russello does not provide a dispositive canon. Even at its strongest, Russello provides a single canon, a subset of a single tool of statutory interpretation, which may be displaced by other tools. See Henry Ford Health Sys. v. Dep’t of Health and Human Servs., 654 F.3d 660, 666 (6th Cir. 2011) {Russello “creates a potential inference, not a necessary one.”). Employing those tools, the Third Circuit unanimously rejected the Board’s identical Russello argument: “The Russello presumption only applies when two provisions are sufficiently distinct that they do not— either explicitly or implicitly—incorporate language from the other provision.” PATH, 776 F.3d at 164 (citing Clay v. United States, 537 U.S. 522, 530, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003)). “Since the critical question here is whether subsection (c)(1) operates to cabin the scope of subsection (c)(2), Russello can only be meaningfully invoked after we resolve that inquiry. Consequently, it is of little help here.” Id. at 164. Every other federal court since the PATH decision has followed the Third Circuit’s lead. See Stokes v. Se. Penn. Transp. Auth., 657 Fed.Appx. 79, 82 (3d Cir. 2016); Murdock v. CSX Transp., Inc., No. 3:15-cv-1242, 2017 WL 1165995, at *3 (N.D. Ohio Mar. 29, 2017); Miller v. BNSF Ry. Co., No. 14-2596, 2016 WL 2866152, at *15 (D. Kan. May 17, 2016); Goad v. BNSF Ry. Co., No. 15-650, 2016 WL 7131597, at *3 (W.D. Mo. Mar. 2, 2016). To be sure, PATH’S citation to Clay is open to some criticism. After all, in Clay, the Supreme Court did not decline to rely on the Russello doctrine in determining the scope of the parallel provision; it instead invoked Russello to say that “an unqualified term ... calls for a reading surely no less broad than a pinpointed [term.]” Clay, 537 U.S. at 530, 123 S.Ct. 1072. Nevertheless, “[statutory context,” PATH, 776 F.3d at 165 (quoting Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 728 (6th Cir. 2013)), and structure explain why Russello does not control here. The relevant section in this case, 49 U.S.C. § 20109(c), is structurally dissimilar to the relevant section in Russello, 18 U.S.C. § 1963(a). In Russello, the narrower language in subsection (a)(2) folloioed subsection (a)(1); here, by contrast, the narrower language in subsection (c)(1) defines the substantive protection against interference, which is then followed by a supplemental protection-against retaliation in subsection- (c)(2). Put differently, in Russello, subsection (a)(2) does not flow from subsection (a)(1), but rather flows from a -unifying section; here, by contrast, subsection (c)(2) flows from subsection (c)(1)—-subsections (c)(1) and (c)(2) prohibit not only interference with “medical or first aid treatment of an employee who is injured during the course of employment,” but also discipline to the “employee for requesting [that] medical or first aid treatment, or, for following [the resultant] orders or a treatment plan of a treating physician.” 49 U.S.C. § 20109(c)(1)-(2). When it comes to § 20109(c), it appears Congress did not give the caboose its own engine. See PATH, 776 F.3d at 163 (“Congress did not intend subsection (c)(2) to be a vehicle for advancing an independent objective.”). Further, the title of subsection (c), “Prompt medical attention,” also supports a harmonious reading of subsections (c)(1) and (c)(2), one that ensures railroad employees receive such attention for on-the-job injuries and occupational illnesses and do not face discipline or retaliation for doing so. The Board does not argue a railroad’s duty to provide “[pjrompt medical attention” (and the corresponding protections from discipline) extends beyond the work environment, so it remains difficult to see how subsection (c)(2) should not be read in light of subsection (c)(l)’s scope. In light of the statutory structure and context, subsections (c)(1) and (c)(2) should be read together to determine the scope of protected activity. The purpose of subsection (c)(1) is to ensure employees receive prompt medical attention if they are injured on the job; the antiretaliation provision, subsection (c)(2), effectuates that purpose by protecting medical treatment for work injuries. See PATH, 776 F.3d at 164 n.11 (citing Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)) (noting that in Burlington, the, Supreme Court “was not confronted with an argument that the two sections actually referred to each other, as we are here”). The Third Circuit seemed wary of accepting the wide-reaching implications of relying’only on the Russello canon-under these circumstances, and so are we. “Holding otherwise, as the [Board] did, would seem to foreclose the possibility that a statute could reference another provision without expressly saying so. That, of course, is contrary to Supreme Court precedent,” PATH, 776 F.3d at 164 n.10 (citing United States v. Navajo Nation, 556 U.S. 287, 299, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009); Melkonyan v. Sullivan, 501 U.S. 89, 94, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991)). In short, subsections (c)(1) and .(c)(2) are structurally and logically married, joined under a title—-“Prompt medical attention”—that limits both of its subsections together to injuries sustained “during the course of employment.” ' A closer examination of the statutory structure implicit in the Board’s position only reinforces our belief that- Congress did not intend to hide a far-reaching reading in a mousehole. W Grand Trunk’s characterization that the Board’s-reading.of the statute creates uncontrolled, unlimited sick time for all railroad employees—or “absurd” results—is •overstated. After all, subsection (c)(2) includes a provision designed to prevent the proverbial train wreck: (2) Discipline.—A- railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting* medical or first aid treatment, or for following orders-or a treatment plan of a-treating physician, except that a railroad carrier’s refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this, section if the refusal,,is pursuant to Federal Railroad Administration medical standards- for fitness of duty or, if there are no pertinent. Federal Railroad Administration standards, a carrier’s medical standards for fitness for duty.... 49 U.S.C. § 20109(c)(2) (emphasis added). In many circumstances, if a person were to receive a doctor’s order that provided for “unlimited sick time,” that person would not meet “medical standards for fitness of duty.” See id. This exception thus cabins the parade of horribles. Nevertheless, even if the Board’s reading would not create absurd results, it seems unlikely that Congress hid such an elephant in the § 20109(c)(2) mousehole. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). The Board agrees that the limiting language in subsection (c)(1)—“during the course of employment”—only applies to bar interference with medical or first aid treatment for injuries that arise from work, or- injuries “sustain[ed] on duty.” Resp’t Br. at 25; see id. at 23 (“[S]ection 20109(c)(1)’s protection is, for obvious reasons, explicitly limited to circumstances involving such [on-duty] injuries .... ”); see In the Matter of Anthony Santiago, No. 10-147, 2012 WL 3255136, at *7 (Admin. Rev. Bd. July 25, 2012) (“We hold that subsection 20109(c)(1) bars a railroad from denying, delaying, or interfering with an employee’s medical treatment throughout the period of treatment and recovery from a work injury.”) (emphasis added). That reading of subsection (c)(1) is difficult to square with the Board’s reading of subsection (c)(2). Subsection (c)(2) first provides that a railroad carrier may not retaliate against “an employee for requesting medical or first'aid treatment.” 49 U.S.C. § 20109(c)(2) (emphasis added). If Congress had intended subsection (c)(2) to cover off-duty injuries, why would it have included the “for requesting” language? If an employee who is not injured “during the course of employment,” § 20109(c)(1), would not “request[] medical or first aid treatment,” § 20109(c)(2), at work, then the Board must assert the text bears a different scope for the connecting clause— “or for following orders or a treatment plan of a treating physician”: (c) Prompt medical attention.— (1) Prohibition.—A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment. ... (2) Discipline.—A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier’s refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to [FRA] medical standards for fitness of duty or, if there are no pertinent [FRA] standards, a carrier’s medical standards for fitness for duty. ... 49 U.S.C. § 20109(c) (highlighting and emphasis added) (on-duty; off-duty). This elephant-in-mousehole construction, see Whitman, 531 U.S. at 468, 121 S.Ct. 903, would not foster a “symmetrical and coherent regulatory scheme.” Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995). The Board’s responses to these contextual and structural arguments essentially sound in public policy: “[T]ying subsections (c)(1) and (c)(2) so tightly together narrows the effect of the provision in a manner that is inconsistent with FRSA’s central purpose.” Resp’t Br. at 19-20. To the extent the Board invites us to engage in purposivism, let’s look to the legislative history. C While reliance on legislative history has become less prevalent over time, “substantive canons have not displaced legislative history.” Anita S. Krishnakumar, Reconsidering Substantive Canons, 84 U. Chi. L. Rev. 825 (2017) (noting “eight of the eleven justices who have served on the Roberts Court ... referenced legislative history more often than they referenced substantive canons in the opinions they authored”); see, e.g., Corley v. United States, 556 U.S. 303, 319-20, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009); see also Sierra Club, 793 F.3d at 665; cf. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (noting a “clearly expressed legislative intention contrary to [the plain] language” can lead to a different result). After all, “[i]n construing statutes, our primary goal is to effectuate legislative intent." Estate of Gerson v. Comm’r, 507 F.3d 435, 439 (6th Cir. 2007) (emphasis added). The legislative history favors Grand Trunk’s, and not the Board’s, position. In 2008, Congress added several amendments to the FRSA’s employee-protection provisions. These amendments included measures to “strengthen existing whistleblower protections for railroad employees .... [and] [prohibit railroad carriers from interfering with the medical treatment of injured workers.” H.R. Rep. No. 110-336, at 59 (2007). Relevant to this case, the latter amendment codified at 49 U.S.C. § 20109(c) was proposed in resppnse to federal court decisions finding similar state laws pre-empted by certain Federal Railroad Administration regulations. The federal provision was enacted “for the protection of injured workers,” ensuring “immediate medical attention free from railroad interference.” H. Comm. on Transp. and Infrastructure, The Impact of Railroad Injury, Accident and Discipline Policies on the Safety of America’s Railroads, at xiii (Oct. 22, 2007); see Rail Safety Legislation: Hearing Before the Subcomm. on R.Rs., Pipelines, and Hazardous Materials of the H. Comm. on Transp. and Infrastructure, 110th Cong. 45 (2007) (testimony of Mr. Pickett, International President, Brotherhood of Railroad Signalmen) (“The [bill] provides language to ensure that all injured railroad employees get the proper medical treatment for any on-job injuries.”). An add-on discipline, or retaliation, provision was also enacted to protect a worker fijom prospective pressure that might deter him from requesting the first aid or medical treatment that would trigger an on-the-job injury “report.” Id. at 161 (joint statement of the Teamsters Rail Conference and the United Transportation Union). The legislative record repeatedly refers to “on-the-job” injuries and occupational illnesses; yet it does not even suggest that subsection (c)(2) was intended to operate as an FMLA-style subsection for railroad employees. In short, nothing suggests that anyone at the time—including the Unions. themselves —contemplated that the simple clause in § 20109(c) would encompass non-work-related illnesses or injuries. The remedial avenues under this statutory section reinforce the-legislative intent. The retaliation claim in this case necessarily arose through OSHA’s administrative processes. In response to “personal injuries and illnesses arising out of toork situations,” Congress created OSHA primarily to “assure so far.,as possible every working man and woman in the Nation [epjoys] safe and healthful working conditions.” 29 U.S.C. §. 651(a)-(b) (emphasis added). The statutory scheme does not support a conclusion, that Congress (or the Department of Labor) intended OSHA to handle retaliation claims in connection with off-duty illnesses and injuries. In sum, the Board even concedes “that much of the legislative history discusses on-duty injuries,” and “it has been unable to point to any express evidence that the policy now advances was ever considered by anybody at any point in the legislative process.” PATH, 776 F.3d at 168. D

9296302-15910

POSNER, Circuit Judge. The Illinois income tax statute requires firms that constitute a “unitary business group” to file a consolidated (called a “combined”) return. 35 ILCS 5/502(e); Ill. Admin. Code tit. 86, § 100.5200. The quoted term signifies “a group of persons related through common ownership whose business activities are integrated with, dependent upon and contribute to each other.” . 35 ILCS 5/1501(a)(27). They must be “functionally integrated through the exercise of strong centralized management (where, for example, authority over such matters as purchasing, financing, tax compliance, product line, personnel, marketing and capital investment is not left to each member).” Id. Why does Illinois require unitary business groups so defined to file consolidated returns? Presumably to reach income generated in other states by businesses that operate in Illinois as well. The federal Constitution has been interpreted to forbid a state to tax income generated wholly outside the state. Allied-Signal, Inc. v. Director, Division of Taxation, 504 U.S. 768, 777-78, 112 S.Ct. 2251, 119 L.Ed.2d 533 (1992); Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 164, 103 S.Ct. 2933, 77 L.Ed.2d 545 (1983). But the income of a genuinely integrated multistate enterprise is not generated entirely in one state, and so its income must be apportioned for tax purposes among the states in which the enterprise operates. Id. at 169, 103 S.Ct. 2933; Allied-Signal, Inc. v. Director, Division of Taxation, supra, 504 U.S. at 772, 112 S.Ct. 2251. If a firm owns a plant in Illinois that delivers its output of beer mugs to the firm’s distribution facilities in Wisconsin for sale to residents of Wisconsin, is the income generated from those sales earned in Wisconsin or in Illinois? It is earned in both, and so must be apportioned in a way that will avoid, so far as possible, multiple taxation of the firm. But suppose the firm is a holding company one of whose subsidiaries owns a plant in Illinois that sells toothbrushes to Chicagoans and the other a dance studio in Wisconsin that sells dancing lessons to Wisconsinites, and the subsidiaries are operated as more or less independent enterprises. It would be unreasonable for Illinois to try to tax the income of the dance studio but reasonable for it to tax some of the income of the beer-mug sales in our first hypothetical, for that is a case of a unitary business group. The constitutional test is that “the out-of-state activities of the purported ‘unitary business’ [must] be related in some concrete way to the instate activities. The functional meaning of this requirement is that there be some sharing or exchange of value not capable of precise identification or measurement — beyond the mere flow of funds arising out of a passive investment or a distinct business operation — which renders formula apportionment a reasonable method of taxation.... [We have] recognized that the unitary business principle could apply, not only to vertically integrated enterprises, but also to a series of similar enterprises operating separately in various jurisdictions but linked by common managerial or operational resources that produced economies of scale and transfers of value.” Container Corp. of America v. Franchise Tax Bd., supra, 463 U.S. at 166, 103 S.Ct. 2933. Envirodyne owns several subsidiaries that make food packaging materials and several others (including Wisconsin Steel Company) that make steel; for simplicity, we’ll pretend that there is just one food-packaging subsidiary and one steel subsidiary, and we’ll also ignore other subsidiaries of Envirodyne. For the tax years in question, Envirodyne filed consolidated Illinois income tax returns so that it could offset losses incurred by the steel subsidiary against income of the food-packaging subsidiary. The losses were incurred outside Illinois, and so are allocable to Illinois only if the subsidiaries are parts of the same unitary business group. Envirodyne and the food-packaging subsidiary are conceded to constitute a unitary business enterprise entitled to file a consolidated Illinois income tax return. The record contains little information on the scope of Envirodyne’s food-packaging operations. It does indicate that some of these operations are in Illinois and some in other states, including California, Massachusetts, and Ohio, and also overseas, but it does not indicate what percentage of Envi-rodyne’s total food-packaging earnings are generated in Illinois. The Illinois Department of Revenue filed a claim in bankruptcy court for the additional taxes that Envirodyne owes if, as the Department concluded after an audit, Envirodyne wasn’t authorized to include the losses of the steel subsidiary in its consolidated returns. The bankruptcy judge, seconded by the district judge, ruled in favor of Envirodyne, which had the burden of proving its entitlement to file consolidated returns, because that would have been its burden in an Illinois state court. Raleigh v. Illinois Dep’t of Revenue, 530 U.S. 15, 20-22, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000); see 35 ILCS 5/904(a); Ill. Admin. Code tit. 86, § 100.9300(a); PPG Industries, Inc. v. Department of Revenue, 328 Ill.App.3d 16, 262 Ill.Dec. 208, 765 N.E.2d 34, 48-49 (2002). The facts are stipulated; the. issue is their legal significance. Envirodyne is actively involved in the management of both subsidiaries; both may therefore be said to be under common management and each, we may assume, is functionally integrated with Envirodyne. That, Envirodyne argues (and the district court agreed, which is why the Illinois Department of Revenue is the appellant), is all that’s required to create a unitary business group. That there is no integration between the food-packaging subsidiary and the steel subsidiary — no common pension or welfare plans, no common employee handbook, no joint advertising— the two companies constituting spokes with a hub at Envirodyne but no rim, except, of course, that Envirodyne files consolidated tax returns on behalf, of all its subsidiaries and therefore must provide the legal and accounting services required for the preparation of the returns — all this, Envirodyne’s argues, is irrelevant. The statute, however, says that the members of a unitary business group must depend on and contribute to each other. It cannot be enough that each depends on and contributes to its parent. The concept of the unitary business group, to be a constitutional basis for taxing income earned out of state, must identify a genuine multistate enterprise — an enterprise that generates income which can’t confidently be ascribed to a particular state in which the enterprise operates. If a .holding company owns two unrelated companies that operate in two different states, the state in .which one of them operates cannot tax the income of the other just because the two are affiliates and each is under the control of their common parent. Allied-Signal, Inc. v. Director, Division of Taxation, supra, 504 U.S. at 772-73, 112 S.Ct. 2251; F.W. Woolworth Co. v. Taxation & Revenue Dep’t, 458 U.S. 354, 362, 102 S.Ct. 3128, 73 L.Ed.2d 819 (1982); Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 439-40, 100 S.Ct. 1223, 63 L.Ed.2d 510 (1980). By the same token — since what is sauce for the goose is sauce for the gander — one of the affiliates can’t use the other’s losses to reduce its own tax liability. If Envirodyne owned a money-losing rickshaw operator in Mandalay, it could not reduce the income from its food-packaging operations in Illinois by the losses of its rickshaw operation. Illinois may be shortsighted in urging a construction of “unitary business group” that requires genuine integration, for that will make it harder for the state to reach out and tax income of affiliates of Illinois firms in other states. But that is a tactical decision for the state to make; it has no bearing on our interpretation and application of the statute. Both parties point to judicial language that supports their respective interpretations of the meaning of unitary business enterprise. Compare Citizens Utilities Co. v. Department of Revenue, 111 Ill.2d 32, 94 Ill.Dec. 737, 488 N.E.2d 984, 990-92 (1986); Hormel Foods Corp. v. Zehnder, 316 Ill.App.3d 1200, 250 Ill.Dec. 181, 738 N.E.2d 145, 149-53 (2000); Borden, Inc. v. Illinois Dep’t of Revenue, 295 Ill.App.3d 1001, 230 Ill.Dec. 169, 692 N.E.2d 1335, 1337-41 (1998), and A.B. Dick Co. v. McGraw, 287 Ill.App.3d 230, 223 Ill.Dec. 92, 678 N.E.2d 1100, 1104-08 (1997), cited by Envirodyne, with Louis Dreyfus Corp. v. Huddleston, 933 S.W.2d 460, 469-71 (Tenn.App.1996); State ex rel. Arizona Dep’t of Revenue v. Talley Industries, Inc., 182 Ariz. 17, 893 P.2d 17, 25-26 (App.1994); Department of Revenue v. Terrace Tower U.S.A., Inc., 15 Ore. Tax 168, 173 (Tax Ct.2000), and Central National-Gottesman, Inc. v. Director, Division of Taxation, 14 N.J.Tax 545, 556-60 (Tax Ct.1995), cited by the Illinois Department of Revenue. The Illinois cases, all cited by Envirodyne, bear more directly on the meaning of the Illinois statute, so we shall focus on them. Envirodyne points out that they require neither any actual transfer of product (vertical integration) between an affiliate with out-of-state income that Illinois wants to tax and one with instate income for unitary status to be achieved, nor that the affiliate having out-of-state income be integrated with aiithe affiliates that have in-state income. But there has to be some integration beyond the bare minimum of central-office functions shared by virtue of the affiliates’ having a common parent that has decided to file consolidated tax returns and, as a corollary of that decision, to perform the legal and accounting services required for the preparation of those returns. In the only decision by the Supreme Court of Illinois that Envirodyne cites on the meaning of unitary business group, we read: The record shows the taxpayer and all other subsidiaries in the group to be wholly owned subsidiaries of the parent, and — with few exceptions — the parent and all its subsidiaries share the same officers as well as interlocking boards of directors. Although day-to-day management of the operating subsidiaries is controlled by local managers, the parent’s headquarters in Connecticut ... must specifically approve disbursements made by local managers over certain amounts. In the taxpayer’s case, specific approval is required for all purchases exceeding $500. Headquarters also reviews major engineering projects and provides legal assistance in interpretation of State and Federal laws. Complex accounting functions, including preparation of the taxpayer’s income tax returns, are also provided by the headquarters. All of these services are performed for the taxpayer, and the other subsidiaries, at cost: the parent charges only to recover labor and overhead costs associated with those services provided. Revenues received by the taxpayer are deposited in a local bank and can be withdrawn by the parent at any time. When revenues are withdrawn by the parent, a debit is entered on the taxpayer’s intercompany account. That account, carried as a liability by all the subsidiaries with a corresponding account on the parent’s books, is the means by which the parent skims earnings from one subsidiary for investment in another. Such investments are made as interest-free loans routed through the intercompany account. Citizens Utilities Co. v. Department of Revenue, supra, 94 Ill.Dec. 737, 488 N.E.2d at 990-91. At first glance it might seem that all that was involved in Citizens Utilities was parental control of each sub — a hub and spokes with no rim. But the appearance is misleading. All the subsidiaries were engaged in the same business, that of supplying water and water-treatment services, and, primarily through the capital-allocation method described at the end of the quoted passage, they were being managed essentially as a single enterprise. The functional integration was as clear or clearer in the three decisions by the Illinois Appellate Court that Envirodyne cites, as well as in the only other pertinent Illinois decisions that we have found. Caterpillar Tractor Co. v. Lenckos, 84 Ill.2d 102, 49 Ill.Dec. 329, 417 N.E.2d 1343, 1351 (1981); PPG Industries, Inc. v. Department of Revenue, supra, 262 Ill.Dec. 208, 765 N.E.2d at 40-42. In the Caterpillar case, the Supreme Court of illinois said that the term “unitary business group,” when applied to a corporation which has subsidiaries or other associated corporations in other States or countries, is used to describe a group of functionally integrated corporate units which are so interrelated and interdependent that it becomes relatively impossible for one State to determine the net income generated by a particular corporation’s activities within the State and therefore allocable to that State for purposes of taxation. A classic illustration of a unitary business is the Caterpillar Tractor Company.... Despite the magnitude and diversity of [its] multistate and multinational operations, there is an overriding corporate design to maintain strict uniformity in areas such as product design, control maintenance, accounting procedures, research and development and even a uniform standard or code of the conduct for its personnel throughout the world. 49 Ill.Dec. 329, 417 N.E.2d at 1351. There is nothing comparable here. Envirodyne cites a regulation of the Illinois Department of Revenue which says that it’s enough to create a unitary business group that although the “subsidiaries were relatively autonomous in their day-today operations,” and “there was no significant flow of goods between any of the corporations,” the parent provided “centralized warehousing, [financing, inventory,] and accounting functions for itself and its subsidiaries.” Ill. Admin. Code tit. 86, § 100.3010(c)(4)(D). This makes sense because if the subsidiaries were sharing all these functions, the income of each subsidiary would be determined to a significant effect by activities taking place in another state, just as in the Citizens Utilities case. Suppose that one subsidiary sells widgets in Illinois and another in Wisconsin, but all the widgets are warehoused in Illinois, the billing and all other back-office functions are performed in Illinois, and so forth; then the income from the sale of the widgets in Wisconsin would be generated to a significant extent by activities in Illinois, and Illinois would therefore have a claim to tax part of that income. It would be providing public services to the Illinois branch of the enterprise (police and fire protection for the warehouse, for example) and in doing so helping the Wisconsin branch to obtain revenues. The goal of apportioning income for tax purposes is, so far as possible, to match income to the state’s provision of services that help to produce or safeguard that income. Envirodyne is left to argue that since it participated in the management of the steel company, it should be deemed integrated with it. If true, this is irrelevant. It is trying to offset the steel company’s losses in Wisconsin (and other states other than Illinois) not against income by the food-packaging subsidiary in Wisconsin, but rather against the income of that subsidiary that is taxable in Illinois, and that subsidiary has no connection with the steel company beyond what is implicit in Envi-rodyne’s filing consolidated returns for all its subsidiaries. No protective or other services rendered by Illinois to the food-packaging subsidiary contributed to the income, or caused the losses, of the steel company in Wisconsin. There would be no basis for Illinois’s trying to tax any of the steel company’s income, and there is likewise no basis for Envirodyne’s trying to reap an Illinois tax benefit from any of those losses.

5882744-29655

OPINION AND ORDER EMILY C. HEWITT, Judge. Before the court is Plaintiffs’ Motion to Certify Class Action (plaintiffs’ Motion or Pis.’ Mot.), filed on July 23, 2008, under Rule 23 of the Rules of the United States Court of Federal Claims (RCFC). The complaint in this action, filed on August 2, 2007, claims that plaintiffs, FBI police officers working during at least one pay period after January 1, 2003, were denied pay and benefits mandated by 28 U.S.C. § 540C. Complaint (Compl.) 1. Plaintiffs claim that pursuant to the Back Pay Act, 5 U.S.C. § 5596 (2006), they are entitled to compensation, back pay, restitution, and attorneys fees. Compl. 1. Defendant filed a response to plaintiffs’ Mo tion on August 11, 2008, stating that defendant defers to the court as to the question of whether plaintiffs’ Motion should be granted. Defendant’s Response to Plaintiffs’] Motion to Certify (defendant’s Response or Def.’s Resp.) 1. For the following reasons, plaintiffs’ Motion is GRANTED and Sandra Mazliah is APPOINTED class counsel. This order defines the class and the class issues and explains the reasons for appointing Sandra Mazliah as class counsel. See RCFC 23(c)(1)(A), (B). 1. Introduction and Factual Background On November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act (Act), Pub.L. No. 107-273, 116 Stat. 1758 (2002), became law. Section 11024 of the Act, 116 Stat. at 1830-31, later codified as 28 U.S.C. § 540C, is entitled “FBI Police.” See 28 U.S.C. § 540C (2006). This section authorizes the “establish[ment] of a permanent police force, to be known as the FBI police” to provide “protection of persons and property within FBI buildings and grounds.” 28 U.S.C. § 540C(b)(l), (2). Section 540C mandates that the FBI provide the FBI police with the same pay and benefits as members of the Uniformed Division of the United States Secret Service. 28 U.S.C. § 540C(b)(5)(A). Plaintiffs’ Complaint asserts that all plaintiffs are current or former FBI police officers. Compl. 1-3. Defendant asserts that plaintiffs are not “FBI police officers” and that the FBI Director has yet to establish the “FBI Police” as contemplated in 28 U.S.C. § 540C. Defendant’s Motion to Dismiss (Motion to Dismiss or Def.’s Motion) 7. When deciding class certification, however, the court takes all of plaintiffs’ allegations as true and does not consider whether plaintiffs have stated a cause of action or will prevail on the merits. See Filosa v. United States (Filosa), 70 Fed. Cl. 609, 615 (2006) (discussing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (interpreting Federal Rule of Civil Procedure (FRCP) 23)). Accordingly, for the purpose of this decision, the court assumes that all plaintiffs are current or former FBI police officers. Section 540C(b)(5)(B) mandates that the pay and benefits for FBI police officers (1) be established by regulation, (2) apply to pay periods after January 1, 2003, and (3) not cause any decrease in the rate of pay for any individual. 28 U.S.C. § 540C(b)(5)(B). Plaintiffs claim that, starting on January 1, 2003 and continuing to the present, defendant has not complied with 28 U.S.C. § 540C and that plaintiffs are owed compensation under the Back Pay Act, 5 U.S.C. § 5596. Compl. 5-6. Under the Back Pay Act, “An employee of an agency who ... ha[s] been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay ... of the employee” is entitled to “an amount equal to all or any part of the pay ... as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period” and, in certain eases, attorneys fees. 5 U.S.C. § 5596(b)(1). II. Legal Standards This court’s rule on class actions, RCFC 23, was completely rewritten and reissued in 2002 (and subsequently amended in 2004). RCFC 23, Rules Committee Notes (2004). Prior to 2002 the court followed Quinault Allottee Ass’n v. United States (Quinault), 197 Ct.Cl.134, 453 F.2d 1272 (Ct.Cl.1972), which borrowed criteria from Rule 23 of the Federal Rules of Civil Procedure (FRCP). The commentary to RCFC 23 states that “[i]n the main” the rule adopts the criteria as set forth in Quinault. RCFC 23, Rules Committee Notes (2002). The current rule provides: (a) Prerequisites to a Class Action. One or more members of a class may sue as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims of the representative parties are typical of the claims of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the United States has acted or refused to act on grounds generally applicable to the class; and (2) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by members of the class; and (C) the difficulties likely to be eneoun-tered in the management of a class action. RCFC 23(a), (b). In shorthand, as stated in Barnes v. United States (Barnes), 68 Fed.Cl. 492, 494 (2005), this rule can be grouped into five requirements: (i) numerosity, (ii) commonality, (iii) typicality, (iv) adequacy, and (v) superiority. A failure to satisfy any one of the categories is fatal to class certification. See Testwuide v. United States, 56 Fed.Cl. 755, 761 (2003) (noting that a court will not certify a class if it fails to satisfy any of the categories); see also Gen. Tel. Co. of the Sw. v. Falcon (Falcon), 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (making same observation as to the FRCP). Thus, to prevail in their motion to certify a class, plaintiffs must establish, by a preponderance of the evidence, that the proposed action satisfies each of the five categories. See Filosa, 70 Fed.Cl. at 615. III. Application of Legal Standards to This Case For the following reasons the court finds that the proposed class fulfills the RCFC 23 requirements for numerosity, commonality, typicality, adequacy, and superiority. A. Numerosity RCFC 23(a)(1) allows for class certification if “the class is so numerous that joinder of all members is impracticable.” RCFC 23(a)(1). “Impracticable” does not mean “impossible.” Barnes, 68 Fed.Cl. at 495 (citing Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993) (discussing FRCP 23)). The court determines numerosity by a variety of factors that include the number of class members, the location of the members of the proposed class, the size of the individual claims, and the nature of the action. 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure (Wright, Miller, & Kane) § 1762 at 177, 206-07 (3d ed.2005). While not outcome determinative, the number of potential class members is persuasive when determining numerosity: generally, if there are more than forty potential class members, this prong has been met. See Stewart v. Abraham (Stewart), 275 F.3d 220, 226-27 (3d Cir.2001) (“No minimum number of plaintiffs is required to maintain a suit as a class action [under FRCP 23], but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.”); 5 James Wm. Moore et al., Moore’s Federal Practice § 23.22[l][b] (Matthew Bender 3d ed.2004). Plaintiffs need not allege the exact number or identity of the class members, but they need more than mere speculation as to the number of parties. See Marcial v. Coronet Ins. Co. (Marcial), 880 F.2d 954, 957 (7th Cir.1989) (noting that under FRCP 23 plaintiffs do not need to know the “exact number” of members, but “cannot rely on eonclusory allegations that joinder is impractical or on speculation as to the size of the class in order to prove numerosity”). 1. Number of Class Members Here, the proposed class description indicates, with some specificity, who is included in the class. The proposed class includes: All employees of [defendant who were, are, or will be employed as a member of the FBI police during at least any one pay period beginning after January 1, 2003 and [w]ho did not receive pay and benefits equivalent to the pay and benefits applicable to members of the United States Secret Service Uniformed Division as required by 28 U.S.C. § 540C. Plaintiffs’ Memorandum of Points and Authorities in Support of Plaintiffs’ Motion to Certify Class Action (Pis.’ Mem.) 8. Plaintiffs have identified 152 potential class members. Id. Plaintiffs claim that the size of “the potential class is approximately twice the number of those who already consented to be part of the class.” Id. at 9. Plaintiffs estimated the number of additional class members using a 2006 Government Accountability Office (GAO) report. Id. at 9, Exhibit (Ex.) 9 (GAO-07-12, Federal Law Enforcement: Survey of Federal Civilian Law Enforcement Function and Authorities, Dee. 2006). This report stated that there were then 239 FBI police officers employed by the FBI. Id. at Ex. 9. Plaintiffs point out that the GAO number includes neither former FBI police officers no longer then working for the FBI, nor FBI police officers appointed after the date reflected in the GAO report. Id. at 9. Plaintiffs did not use “mere speculation” to come up with the number of additional plaintiffs, they estimated based on a figure reported by GAO, and, importantly, have already identified 152 potential plaintiffs. Id.; see Marcial, 880 F.2d at 957. The actual number of members of the class already identified, 152, is significantly higher than the threshold number of forty, and is likely sufficient to satisfy the numerosity prong by itself. See Stewart, 275 F.3d at 226-27. However, the court analyzes whether other factors considered in determining numerosity also support a finding of numerosity. 2. Location of Members of the Proposed Class Another factor to consider in determining numerosity is the geographical location of the potential class members. See Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. Unit A July 1981). If plaintiffs are dispersed geographically, then a court is more likely to certify a class action. See Filosa 70 Fed.Cl. at 615 (certifying a class action when plaintiffs were dispersed throughout twelve states). “[P]laintiffs are located in every location where FBI police are regularly stationed, including but not limited to Washington, DC, Virginia, West Virginia, and New York.” Pis.’ Mem. 8. The court also notes that former FBI police officers, who are potential class members, could be located anywhere. Owing to the dispersion of plaintiffs over, at a minimum, three states and the District of Columbia, the court finds that the geographical dispersion of plaintiffs is sufficiently broad to support the numerosity requirement. 3. Size of Individual Claims Another factor in determining numerosity is whether the size of each individual plaintiffs claim hinders the ability of a plaintiff to file any action at all. See Wright, Miller, & Kane § 1762 at 206 & n. 55. The smaller the size of the claim and the larger the number of persons, the less likely it is that, without the benefit of a class action, any plaintiff will recover. See Barnes, 68 Fed.Cl. at 499-500 (“[T]he small recoveries expected to be received by these individuals-estimated to be individually in the hundreds of dollars-render it less likely that, without the benefit of class representation, they would be willing to incur the financial costs and hardships of separate litigations, the costs of which would certainly exceed their recoveries many-fold.”). While plaintiffs here have not briefed the court on this issue, in other wage and hours contexts, this court has found that the small size of the claims involved supports the nu-merosity requirement. See Filosa, 70 Fed. Cl. at 622 (noting in a case about calculating compensation for additional time worked, that “there is little benefit to having each proposed class member retain counsel, pay filing fees, and submit duplicative pleadings”); Barnes, 68 Fed.Cl. at 499-500 (noting in an overtime ease that “the small recoveries ... render it less likely” that individual actions would be brought without a class action). 4. Conclusion For the foregoing reasons, the court finds that the proposed class satisfies the numer-osity requirement owing to the large number of already identified and reasonably estimated class members, the geographic dispersion of members of the class, and the likely size of the claims in relation to the likely costs of separate litigation. B. Commonality The commonality requirement addresses three separate issues: (1) whether “there are questions of law or fact common to the class,” RCFC 23(a)(2), (2) whether those common questions “predominate over any questions affecting only individual members,” RCFC(b)(2), and (3) whether “the United States acted or refused to act on grounds generally applicable to the class,” RCFC 23(b)(1). “The threshold of ‘commonality’ is not high.” Jenkins v. Raymark Indus., 782 F.2d 468, 472 (5th Cir.1986) (interpreting FRCP 23(a)(2)). When determining commonality the court must “seek to develop an understanding of the relevant claims, defenses, facts and substantive law.” Barnes, 68 Fed.Cl. at 496 (citing Falcon, 457 U.S. at 160, 102 S.Ct. 2364); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (noting that class determination under FRCP 23 “involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiffs cause of action’”) (citation omitted). The court’s determination of the common issues of law and fact raised here has been addressed, in part, in the court’s decision denying defendant’s motion to dismiss. King v. United States, 81 Fed.Cl. 766 (2008). 1. Common Questions or Law or Fact RCFC 23(a)(2) requires there to be “questions of law or fact common to the class.” RCFC 23(a)(2). The requirement is satisfied if there is at least “one core common legal question that is likely to have one common defense.” Fisher, 69 Fed.Cl. at 199; see Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir.1993) (“The interests and claims of the various plaintiffs need not be identical. Rather, the commonality test [for FRCP 23] is met when there is ‘at least one issue whose resolution will affect all or a significant number of the putative class members.’ ”) (citation omitted). Here, common questions of law and fact apply to the entire class. The questions are as follows: (1) whether section 540C requires that FBI police officers be paid as Secret Service Uniformed Division Officers; (2) whether the government has or has not paid FBI police officers as Secret Service Uniformed Division Officers; and (3) whether FBI police officers are entitled to compensation under the Back Pay Act owing to the government’s failure to pay them as Secret Service Uniformed Division Officers. The court agrees with the conclusion that “commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir.2001) (deciding an FRCP 23 commonality issue). 2. Common Questions of Law or Fact Predominate Over Individual Questions RCFC 23(b)(2) requires that, once a class is certified, “questions of law or fact common to the members of the class [must continue to] predominate over any questions affecting only individual members” if the class action is to be maintained. RCFC 23(b)(2). “‘[F]actual variation among the class grievances’ is acceptable as long as ‘a common nucleus of operative fact’ exists.” Curry v. United States (Curry), 81 Fed.Cl. 328, 334 (2008) (quoting Rosario v. Livaditis, 963 F.2d 1013, 1017-18 (7th Cir.1992)). The fact that the eventual award “ “will ultimately require individualized fact determinations is insufficient, by itself to defeat a class action.” Id. (quoting McCarthy v. Kleindienst, 741 F.2d 1406, 1415 (D.C.Cir.1984)). If successful, plaintiffs will receive different awards of damages based on factors such as seniority or pay grade. However, it is clear that the outcome-determinative question is whether or not the government failed to pay FBI police officers in violation of 28 U.S.C. § 540C. See Barnes, 68 Fed.Cl. at 498 (“[T]here scarcely would be a case that would qualify for class status in this court [if individual damages were outcome determinative for class certification].”). At a later date, if required, the court can determine a formula for calculating individual damages. See id. at 498-99 (discussing how the court could employ damage estimations). 3. Refusal to Act by the United States on Grounds Generally Applicable to the Class RCFC 23(b)(1) requires that in order to maintain a class action the United States must have “acted or refused to act on grounds generally applicable to the class.” RCFC 23(b)(1). Here, the claim is that the United States has refused to pay FBI police officers in accordance with 28 U.S.C. § 540C. Pis.’ Mem. 13. The alleged refusal to act applies to the entire potential class of plaintiffs. 4. Conclusion For the foregoing reasons, plaintiffs have satisfied each of the three requirements for a finding of commonality. C. Typicality Requirement “[T]he claims of the representative parties [must be] typical of the claims of the class.” RCFC 23(a)(3). The threshold for typicality, as with the threshold for commonality, is “ ‘not high.’ ” Curry, 81 Fed.Cl. at 335 (quoting Fisher, 69 Fed.Cl. at 200). The applicable test is “‘not unusually restrictive.’ ” Id. (quoting Fisher 69 Fed.Cl. at 200). Courts “have found typicality if the claims or defenses of the representatives and the members of the class stem from a single event or a unitary course of conduct, or if they are based on the same legal or remedial theory.” Wright, Miller, & Kane § 1764 at 270-71 (footnotes omitted). Here, as with the claims for commonality, the claims of all proposed class members are similar and the representative parties have the same claims as the proposed members of the class. The representative parties are all FBI police officers who worked at least one pay period after January 1, 2003. Pis.’ Mem. 14. The proposed members of the class are all FBI police officers who have worked at least one pay period after January 1, 2003. Id. at 8. The typicality requirement, therefore, has been met. D. Adequacy Requirement To determine whether the representative parties adequately represent the class, courts first consider the adequacy of class counsel and, second, ensure that class members do not “have interests that are ‘antagonistic’ to one another.” See Barnes, 68 Fed.Cl. at 499 (quoting In re Drexel Burnham Lambert, 960 F.2d 285, 291 (2d Cir.1992)). Because the second prong, concerning antagonistic interests, does not appear to be an issue in this case, the court focuses its discussion on the adequacy of class counsel. Under RCFC 23(g)(1)(B), “An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.” RCFC 23(g)(1)(B). Class counsel must be “qualified, experienced, and generally able to conduct the litigation.” Barnes, 68 Fed.Cl. at 499 (quoting In re Drexel Burnham Lambert, 960 F.2d at 291). To determine whether an attorney will “fairly and adequately” represent the class the court considers: the work counsel has done in identifying or investigating potential claims in the action [; 2] counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action[; 3] counsel’s knowledge of the applicable law[; and 4] the resources counsel will commit to representing the class. RCFC 23(g)(l)(C)(i). The court may also “consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” RCFC 23(g)(l)(C)(ii). Moreover, the court may direct potential class counsel to provide the court with information on fees, costs, or any other matter pertinent to the appointment as class counsel. RCFC 23(g)(l)(C)(iii). Sandra Mazliah, in the context of and with the anticipated support of the law firm of Passman & Kaplan, P.C. (the firm), meets the criteria set up in RCFC 23(g)(l)(C)(i). Ms. Mazliah and the firm have investigated the current case, researched the applicable legal issues, and identified potential class members. Pis.’ Mem. 15-16. Before filing the complaint, counsel “performed many hours of legal and factual research to determine if potential claims existed.” Id. Ms. Mazliah and the firm “filed FOIA requests to obtain relevant documents.” Id. Additionally, over 150 potential class members contacted the firm and provided factual information about the claims. Id. Sandra Mazliah, as counsel of record, also successfully defeated defendant’s Motion to Dismiss. Id. Ms. Mazliah and the firm have experience managing class actions and other complex civil cases, including management of “numerous class complaints and large consolidated complaints regarding promotions, leave, earnings under the Fair Labor Standards Act, and retirement benefit entitlements.” Id. Ms. Mazliah points out that the firm has been class counsel in three federal employment eases and two other complex federal employee actions. See id. at 16 (listing the cases in which the firm has been plaintiffs’ counsel). Plaintiffs assert that class counsel will “devote sufficient resources to this ease.” Pis.’ Mem. at 16. The firm’s practice “concentrates on employment matters affecting federal civil service employees.” Id. Members of the firm have authored a handbook for federal employees and produce a weekly publication on federal employment matters. Id. Members of the firm have experience with experts on economic damages and with discovery of government personnel records. Id. The litigation team for this case consists of a partner, Sandra Mazliah, a senior associate, an associate, and a law clerk/paralegal. Id. “[T]he firm’s senior partners, Edward Pass-man and Joseph Kaplan, are fully briefed on the status and issues in the complaint.” Id. The court concludes that Ms. Mazliah, considered in the context of and with the anticipated support of the law firm of Passman & Kaplan, P.C., will fairly and adequately represent the class. For the foregoing reasons, the court finds that this action meets the adequacy requirement. E. Superiority Requirement In order for a case to be maintained as a class action, it must be “superior to other available methods for the fair and efficient adjudication of the controversy.” RCFC 23(b)(2). In Barnes, the court noted that superiority can be met when “ ‘a class action would achieve economics of time, effort, and expenses, and promote uniformity ... without sacrificing procedural fairness or bringing about other undesirable results.’ ” Barnes, 68 Fed.Cl. at 499 (quoting FRCP 23, Advisory Committee Notes (1966)). The court must balance any problems with the ability to manage or fairness of conducting a class action with any benefit individual members or the system will receive from such an action. Id. The court finds that the superiority requirement is met. Owing to the common questions of law and fact and uncertainty as to whether individuals will proceed on their own, the court concludes that a class action is superior to other methods of adjudication. Conducting this case as a class action is likely to achieve efficiencies in the use of the resources of both the parties and the court. F. Conclusion For the foregoing reasons, the court finds that all requirements for class action certification are met, and that plaintiffs have shown by a preponderance of the evidence that this case should be certified as a class action. IV. Certification of Class Action Pursuant to RCFC 23(c)(1)(B), “An order certifying a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under RCFC 23(g).” RCFC 23(c)(1)(B). A. Class Plaintiffs’ proposed class is: All employees of [djefendant who were, are, or will be employed as a member of the FBI police during at least any one pay period beginning after January 1, 2003; and [w]ho did not receive pay and benefits equivalent to the pay and benefits applicable to members of the United States Secret Service Uniformed Division as required by 28 U.S.C. § 540C. Pis.’ Mem. 8. The court adopts the proposed class description with one substantive change (regarding persons who “will be employed”) and one change (deletion of the word “any”) that the court believes is non-substantive. As to the substantive change, this court does not have the ability to adjudicate the claims of future employees of the FBI. See Bowen v. Massachusetts, 487 U.S. 879, 905, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (noting that this court “does not have the general equitable powers of a district court to grant prospective relief’). Only persons currently or previously employed as FBI police officers may be in the class. Therefore the court revises the phrase “were, are, or will be employed” to read “were or are employed.” Accordingly, the class certified by this court is: All employees of the United States who were or are employed as a member of the FBI police during at least one pay period beginning after January 1, 2003, and who did not receive pay and benefits equivalent to the pay and benefits applicable to members of the United States Secret Service Uniformed Division as required by 28 U.S.C. § 540C. B. Class Issues The three main issues that apply to the class are: (1) whether section 540C requires plaintiffs to be paid as United States Secret Service Uniformed Division Officers; (2) whether the government has or has not paid plaintiffs as United States Secret Service Uniformed Division Officers; and (3) whether plaintiffs are entitled to compensation under the Back Pay Act. These issues are the “class issues.” See RCFC 23(c)(1)(B). C. Class Counsel The RCFC allow for only “one attorney of record” and such attorney “shall be an individual (and not a firm).” RCFC 83.1(c)(1). All other attorneys shall be designated “of counsel.” Id. This court appoints Sandra Mazliah as class counsel for the reasons discussed in Part III.D above. The law firm of Passman & Kaplan, P.C. shall be designated “of counsel” in the filings. D. Attorneys Fees Pursuant to RCFC 23(g) this court “may direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs.” RCFC 23(g)(l)(C)(iii). On or before Friday, October 10, 2008, plaintiffs’ counsel shall file a supplemental exhibit to plaintiffs’ Motion, which shall describe plaintiffs’ counsel’s record-keeping procedures regarding attorneys fees and other expenses in this litigation. The supplemental exhibit to plaintiffs’ Motion shall also describe the terms of any existing agreements with proposed class representatives regarding the payment of attorneys fees and other expenses of the litigation. V. Conclusion For the foregoing reasons, this court GRANTS plaintiffs’ Motion, CERTIFIES this action as a class action, APPOINTS Sandra Mazliah as class counsel, and ORDERS class counsel to provide the court with the information described in Part IV.D above. On or before Friday, October 10, 2008, the parties shall file a joint status report suggesting further proceedings and describing a proposed plan for meeting the notice requirements of RCFC 23(c). Pursuant to RCFC 10(a), all subsequent pleadings in this case shall use the caption shown above. IT IS SO ORDERED. . Defendant filed a motion to dismiss on October 31, 2007, claiming that the court did not have jurisdiction to hear this case, that 28 U.S.C. § 540C was not money-mandating as required by the Tucker Act, and that the Civil Service Reform Act (CSRA) precluded the court from hearing the case. King v. United States, 81 Fed.Cl. 766, 767-68, 771 (2008). This court found that it had jurisdiction, id. at 770, that § 540C was money mandating, id., and that the CSRA did not preclude the court from hearing the case, id. at Hill. . Rule 23 of the Rules of the United States Court of Federal Claims (RCFC) is modeled after Rule 23 of the Federal Rules of Civil Procedure (FRCP). See Curry v. United States (Curry), 81 Fed.Cl. 328, 332 n. 10 (2008). Because the language of RCFC 23 and FRCP 23 are practically identical, other federal cases applying FRCP 23 are helpful in interpreting RCFC 23. RCFC 23 differs from the federal rule in two ways: (1) it has been modified to reflect the court’s jurisdiction, in particular, the narrow circumstances in which the court will afford declaratory or injunc-tive relief, and (2) it allows only "opt-in,” but not “opt-out,” class actions. RCFC 23, Rules Committee Notes (2002).

8930328-8270

MEMORANDUM OPINION AND ORDER MORAN, Senior District Judge. Defendants, the National Football League (NFL), the individual owners of the NFL’s member teams, National Football League Properties, Inc. (NFLP), and Reebok International, Ltd. (Reebok), move for partial reconsideration of this court’s Memorandum Opinion and Order of May 5, 2005. In that decision, defendants’ motion to dismiss count IV of plaintiff American Needle’s complaint was granted, but them motion to dismiss counts I, II, III, and V was denied. Defendants now argue that the court erred by considering that headwear and apparel carrying NFL and NFL teams’ logos may constitute a relevant market to support plaintiffs claims. They contend that the court should have only considered the market in licenses to use trademarks and logos. Defendants correctly point out that there is a distinction between American Needles’ input markets and outputs markets. In its complaint, American Needle alleges that there are six relevant markets: two are markets in which it is a buyer of licenses for trademarks (input markets), and four where it is the producer of products displaying those trademarks, which are sold to consumers (output markets). The court did not devote any attention in its prior opinion to this distinction between plaintiffs alleged markets because it was irrelevant, given defendants’ argument for dismissal. In their original motion to dismiss and subsequent briefs, defendants argued that none of plaintiffs alleged markets was a relevant market for antitrust claims because such markets could not be defined by trademarks. Defendants applied this broad argument to all of plaintiffs alleged markets — input and output markets alike. In the court’s opinion it rejected defendants’ contention that as a matter of law plaintiffs relevant markets could not be defined by trademarked logos. Defendants present a different argument in this motion to reconsider. While before they argued that none of plaintiffs alleged markets was viable because they all relied on trademarks, which could never define a market, they now argue that American Needle can only allege a restriction, and therefore harm, in the input market, for licenses to use NFL logos, and that this is not a relevant market because there is a cross-elasticity with licenses for other logos. Rather than asking the court to reconsider its assessment of their previous arguments, defendants ask the court to consider this new argument. For the following reasons, we deny the motion for partial reconsideration. Defendants argue that the NFLP’s alleged exclusive contract with Reebok restricts the market for licenses to use the NFL’s and NFL teams’ trademarks. They further maintain that the contract does not affect plaintiffs output of products, ie., American Needle can still sell as many hats as it likes. Therefore, defendants argue, the only market relevant to the court’s inquiry should be American Needle’s input market, licenses for various trademarks and logos, not its output market, headwear and apparel. In support of their argument, defendants cite Collins v. Associated Pathologists, Ltd., 844 F.2d 473 (7th Cir.1988). In Collins, the plaintiff, a pathologist formerly employed by Associated Pathologists, Ltd. (APL), brought an antitrust action against APL and St. John’s Hospital. Id. at 474-75. APL contracted with St. John’s to provide all of its pathology services. Id. at 475. As an APL employee, the plaintiff provided services for the hospital; however, after he was forced to resign, St. John’s refused to hire him due to its contract with APL. Id. When determining whether APL’s contract with St. John’s was an unreasonable restraint of trade, the Seventh Circuit concluded that the relevant market to analyze was the market in which pathologists competed for jobs, not the market in which hospitals offered pathology services to their patients. Id. at 478-79. The Seventh Circuit provided two reasons for this decision. First, the court held that a market of pathology services to hospital patients is not relevant because there is no distinct demand for pathology services separate from other hospital services. Id. at 478. In other words, the court found that a consumer market for pathology services did not exist and “[therefore the contract between St. John’s and APL for the provision of pathological services could not have had an impact on patients.” Id. The court stated that only hospitals and clinical laboratories could have been affected by the defendants’ contract. Id. The same does not hold true for the trademark licensing contract. There is a distinct demand for headwear and apparel carrying the logos of the NFL and NFL teams. As explained in our prior opinion, there is a basis to believe that for some consumers the NFL teams’ logos are the “product,” rather than the items carrying the logos. A contract which provides one company with an exclusive right to produce items carrying these logos may very well have an affect on the consumers who purchase them. The second reason the Seventh Circuit limited the relevant market in Collins to the market in which pathologists compete for jobs was because of the Supreme Court’s decision in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961), where a coal mining company entered into a contract to provide an electric power company in Tampa, Florida, with all of its required coal for twenty years. Id. at 322, 81 S.Ct. 623. Before the first shipment of coal, but after considerable investment by both parties, the mining company informed the utility company that the requirement contract violated antitrust laws and therefore it would not perform. Id. at 323, 81 S.Ct. 623. The utility sought coal elsewhere and sued for a declaration that the contract was valid. Id. at 323-24, 81 S.Ct. 623. The district and appellate courts held that the contract violated section 3 of the Clayton Act, 15 U.S.C. § 12 et seq., but the Supreme Court reversed. Id. at 324, 81 S.Ct. 623. The Supreme Court found that the lower courts had not properly considered the relevant market when determining whether the contract foreclosed competition in a substantial share of the line of commerce affected. Id. at 329-330, 81 S.Ct. 623. While the lower courts analyzed how the contract affected competition in the market for coal in peninsular Florida, the Supreme Court found that the relevant market was not so geographically narrow and that it should have been defined by the region in which the coal company and its competitors sold their coal. Id. at 331-32, 81 S.Ct. 623. Within this much larger geographic market the parties’ coal contract had an insubstantial effect on the coal market. Id. at 332-33, 81 S.Ct. 623. In Collins, the Seventh Circuit relies on Tampa Electric Co. in finding that the only market relevant to the exclusive dealing contract between APL and the hospital is the market for pathologists. 844 F.2d at 478-79. The court points out that the Supreme Court never focused on the electricity company’s energy market when considering the requirement contract’s effect on competition. Id. Defendants in the instant case argue that, as in Collins and Tampa Electric Co., we should not consider the contract’s effect on the output market. However, Collins and Tampa Electric Co. are significantly different from American Needle’s action. The contract between the parties in Tampa Electric Co., as with the contract in Collins, had no apparent effect on competition in the output market. The Supreme Court does not note, and it is not evident, how Tampa Electric Co.’s source of coal would affect its customers’ market for electric energy. It is not even clear from the opinion whether Tampa Electric Co.’s customers had any choice other than this public utility for their electricity service. The same is not true of the NFLP’s alleged contract with Reebok. It is readily apparent how restricting the issuance of licenses for the use of the NFL’s and NFL teams’ trademarked logos in the input market could directly affect the ability of consumers to purchase goods carrying the trademarked logos in the output market. For this reason, this case is distinct from those relied upon by defendants.

12521080-17240

BERZON, Circuit Judge: Our question is whether every entity that engages in "municipal securities dealer activities" is a "municipal securities dealer" for purposes of determining whether it is subject to compelled arbitration before the Financial Industry Regulatory Authority ("FINRA"). We think not, so we reverse the district court's denial of a motion for a preliminary injunction. I. BOKF (Bank of Oklahoma, National Association) is a federally chartered bank. BOKF's Institutional Investment Department ("IID") is registered as a municipal securities dealer with the Municipal Securities Rulemaking Board ("MSRB"). Its Corporate Trust Department ("CTD") is not. The CTD "[s]erved as the Indenture Trustee for certain conduit municipal bonds" issued by cities "in Arizona, Georgia, Alabama, and other states," to finance "the purchase and renovation of senior living facilities" by private entities as third-party borrowers. The third-party borrowers on the conduit municipal bonds used to fund the senior living facilities were Christopher Brogdon and Dwayne Edwards. Brogdon served as an officer for various companies "in the nursing home, assisted living, and retirement community business," and Edwards "owned or administered assisted living and skilled nursing facilities." Lawson Financial Corporation underwrote the bonds at issue-that is, as a municipal securities dealer, it purchased the bonds from the issuer cities and sold them to members of the public. See The Underwriting Process , Municipal Securities Rulemaking Board, https://www.msrb.org/EducationCenter/MunicipalMarket/Lifecycle/Primary/Underwriting-Process.aspx (last visited April 8, 2019). In addition to serving as indenture trustee for these bonds, the record suggests that that BOKF was also a dissemination agent for a number of the conduit municipal bonds. BOKF's role as a dissemination agent was governed by a continuing disclosure agreement, which required BOKF to assist underwriter Lawson Financial Corporation in complying with its obligations under the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq . ("the 1934 Act"), including to provide various continuing disclosures for the life of the bonds. See 17 C.F.R. § 240.15c2-12. As the dissemination agent, BOKF was required to disclose the issuer's annual financial statements and other information on the MSRB's system, as well as to provide notice to the bondholders if the issuer did not provide this information in a timely fashion. In 2015, the Securities and Exchange Commission ("SEC") initiated action against BOKF, BOKF's former senior vice president Marrien Neilson, Brogdon, Edwards, and Lawson Financial Corporation for fraud, in violation of securities laws, in relation to the conduit municipal bonds. BOKF entered into a consent decree with the SEC, in which it did not "admit[ ] or deny[ ] the SEC's findings [but] agreed to disgorge" fees and interests and to pay a penalty. The consent decree resolved only the SEC's complaint. A group of bondholders, who were third-party beneficiaries of the indentures, initiated on their own behalf arbitration before FINRA, asserting claims of breach of fiduciary duty, fraud, fraudulent concealment, breach of contract, and negligence. FINRA, like the MSRB, is a non-governmental "self-regulatory organization ... that enforces MSRB rules applicable to the municipal securities activities of its member broker-dealers" and "handles arbitration proceedings relating to municipal securities for its member broker-dealers and for bank dealers," among other activities. FINRA , Municipal Securities Rulemaking Board, Glossary of Municipal Securities Terms, http://www.msrb.org/Glossary/Definition/FINANCIAL-INDUSTRY-REGULATORY-AUTHORITY-_FINRA_.aspx (last visited Apr. 16, 2019). FINRA Rule 12200 provides that "[p]arties must arbitrate" before FINRA if (1) the arbitration is "required by a written agreement" or "requested by the customer," (2) "[t]he dispute is between a customer and a member or associated person of a member," and (3) "[t]he dispute arises in connection with the business activities of the member." BOKF is not a registered member of FINRA and the underlying indenture contracts do not include any agreement to arbitrate disputes arising from the bonds in question, so Rule 12200 does not compel arbitration. The bondholders resorted instead to MSRB Rule G-35, which provides that, [E]very bank dealer (as defined in rule D-8) shall be subject to the Code of Arbitration Procedure of the National Association of Securities Dealers, Inc. ("NASD") for every claim, dispute, or controversy arising out of or in connection with the municipal securities activities of the bank dealer acting in its capacity as such. Based on Rule G-35, the bondholders argued that the CTD had engaged in certain activities of a municipal securities dealer and was therefore a "bank dealer" subject to compulsory arbitration before FINRA. This argument persuaded FINRA, and the arbitration was set to proceed on an expedited schedule. BOKF then moved for a preliminary injunction in the United States District Court for the District of Nevada, seeking to enjoin the arbitration. BOKF's argument was that neither the bank as a whole nor the CTD was subject to FINRA arbitration. Denying the motion, the district court reasoned that BOKF was unlikely to prevail on the merits for two reasons. First, the district court concluded that the bondholders were "customers" of BOKF with standing to initiate the FINRA arbitration. Second, the district court reasoned that the CTD was a "municipal securities dealer" subject to the MSRB's arbitration requirement. In the district court's view, BOKF had not shown that it was likely to prevail on the merits and was unable to show that a preliminary injunction was otherwise justified. BOKF sought an injunction pending this timely appeal, which the district court denied. This court's motions panel, however, granted an injunction preventing arbitration pending our decision. Before us is BOKF's appeal of the district court's denial of a preliminary injunction. II. "We review the district court's decision to grant or deny a preliminary injunction for abuse of discretion." Sw. Voter Registration Educ. Project v. Shelley , 344 F.3d 914, 918 (9th Cir. 2003) (en banc). To obtain a preliminary injunction, a plaintiff "must establish (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest." Toyo Tire Holdings of Am. v. Cont'l Tire N. Am., Inc. , 609 F.3d 975, 982 (9th Cir. 2010) (citing Winter v. Nat'l Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). We employ a "sliding scale test," under which a "plaintiff can support issuance of a preliminary injunction" if he raises "serious questions going to the merits"; shows that the "balance of hardships tips sharply" in his favor; establishes that a likelihood of irreparable harm exists; and, finally, demonstrates "that the injunction is in the public interest." All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1134-35 (9th Cir. 2011) (internal quotation marks and citations omitted). A. The district court correctly identified the two questions on which BOKF's effort to avoid arbitration is likely to turn: Is BOKF or its CTD a municipal securities dealer subject to the MSRB's requirement of arbitration before FINRA, and are the bondholders customers of BOKF? Because we believe the answer to the first question is no, we conclude BOKF is likely to succeed on that first question and do not address the second. MSRB Rule D-1 provides that "[u]nless the context otherwise specifically requires, the terms used in the rules of the [MSRB] shall have the respective meanings set forth in the" 1934 Act. The 1934 Act defines a "dealer" as "any person engaged in the business of buying and selling securities ... for such person's own account through a broker or otherwise." 15 U.S.C. § 78c(a)(5)(A) (emphasis added). More specifically, a "municipal securities dealer" is "any person (including a separately identifiable department or division of a bank) engaged in the business of buying and selling municipal securities for his own account ." Id . § 78c(a)(30) (emphasis added). BOKF's IID is registered as a municipal securities dealer. But there is no evidence that any other department or division of BOKF, including the CTD, was registered as a municipal securities dealer or traded municipal securities for its own account. As to the transactions giving rise to this case, the CTD acted as an indenture trustee and administrator for bonds underwritten and sold by Lawson Financial Corporation; it did not buy or sell the bonds for its own account or on behalf of any other division of the bank. Accordingly, the CTD is not a municipal securities dealer within the meaning of that term in the statute. Nor is BOKF as a whole a municipal securities dealer on the basis that one of its component parts, the IID, is such a dealer. In such circumstances, only "the department or division and not the bank itself [is] the municipal securities dealer." Id .§ 78c(a)(30)(B). The bondholders vigorously dispute this straight-forward statutory interpretation, relying on a combination of MSRB Rules to maintain that BOKF is a municipal securities dealer for purposes of the obligation to participate in FINRA arbitration even though it does not come within the statutory definition of that term. The bondholders note, first, that MSRB Rule G-35 provides that "every bank dealer ... shall be subject to the code of Arbitration Procedure of" FINRA, which includes FINRA Rule 12200. MSRB Rule D-8 in turn explains, "[t]he term 'Bank Dealer' shall mean a municipal securities dealer which is a bank or a separately identifiable department or division of a bank as defined in rule G-1 of the Board " (emphasis added). Rule G-1 provides in pertinent part: Separately Identifiable Department or Division of a Bank (a) Municipal Securities Dealer Activities. (i) A separately identifiable department or division of a bank, as such term is used in section 3(a)(30) of the Act, is that unit of the bank which conducts all of the activities of the bank relating to the conduct of business as a municipal securities dealer ("municipal securities dealer activities"), as such activities are hereinafter defined ... (ii) For purposes of this rule, the activities of the bank which shall constitute municipal securities dealer activities are as follows: (A) underwriting, trading and sales of municipal securities; (B) financial advisory and consultant services for issuers in connection with the issuance of municipal securities; (C) processing and clearance activities with respect to municipal securities; (D) research and investment advice with respect to municipal securities; (E) any activities other than those specifically enumerated above which involve communication, directly or indirectly, with public investors in municipal securities; and (F) maintenance of records pertaining to the activities described in paragraphs (A) through (E) above; provided, however , that the activities enumerated in paragraphs (D) and (E) above shall be limited to such activities as they relate to the activities enumerated in paragraphs (A) and (B) above. The bondholders urge that "as defined in rule G-1 of the Board" modifies "a municipal securities dealer" in Rule D-8. And the Rule D-8 definition of "municipal securities dealer," they contend, therefore refers to the list of "activities of [a] bank which shall constitute municipal securities dealer activities" in Rule G-1. According to the bondholders, because the district court found the CTD engaged in activities enumerated in Rule G-1-albeit not "underwriting, trading and sales of municipal securities"-the CTD is a municipal securities dealer, whether or not it traded securities for its own account. On this view, the definition of "bank dealer" for purposes of the MSRB Rules becomes severed from the statutory "dealer" sine qua non-trading securities for one's "own account." See 15 U.S.C. § 78c(a)(5)(A). For support, the bondholders point to the phrase in Rule D-8 that follows "municipal securities dealer"-"which is a bank or a separately identifiable department or division of a bank as defined in rule G-1 of the Board." But "as defined in rule G-1 of the Board" does not modify "municipal securities dealer" (or "bank"); it modifies "a separately identifiable department or division of a bank." We know that is so for four reasons. First, as a matter of grammar, an established canon of interpretation instructs that, absent other indicia of meaning, "a limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediately follows." Barnhart v. Thomas , 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) ; see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 144-46 (2012). So the phrase "as defined in rule G-1 of the Board" most naturally modifies the phrase immediately before it, "a separately identifiable department or division of a bank." Second, Rule G-1 itself confirms that the cross-reference in Rule D-8 refers to the description of "separately identifiable department of division of a bank." Rule G-1 is titled "Separately Identifiable Department or Division of a Bank," announcing exactly what it defines, and in Rule G-1(a)(i) explains what counts as such a department or division. Third, the MSRB's authority is specifically spelled out in 15 U.S.C. § 78o -4(b), and, not surprisingly, it does not include overriding the statutory definition of "municipal securities dealer." Rather, § 78o -4(b) provides that "the Board shall propose and adopt rules to effect the purposes of this chapter with respect to transactions in municipal securities effected by brokers, dealers, and municipal securities dealers." Id . § 78o -4(b)(2). That same section gives the MSRB authority to define "separately identifiable department or division," which is not defined by statute, and in doing so refers again to the "buying and selling [of] municipal securities." Id . § 78o -4(b)(2)(H). Nowhere does that statute authorize the MSRB to give the "municipal securities dealer" term a different definition than the statute does. The relevant MSRB Rules reflect the bounds of the Board's statutory authority. Rule D-8, again, provides that "[t]he term 'Bank Dealer' shall mean a municipal securities dealer which is a bank or a separately identifiable department or division of a bank as defined in rule G-1 of the Board." And MSRB Rule D-1 states that "[u]nless the context otherwise specifically requires, the terms used in the rules of the [MSRB] shall have the respective meanings set forth in the [1934] Act." As "municipal securities dealer" is defined by statute, 15 U.S.C. § 78c(a)(30), MSRB Rule D-8, far from redefining "municipal securities dealer"-which, again, the MSRB has no authority to do-incorporates the statutory term and so, according to Rule D-1, the statutory meaning. Fourth, the bondholders wrongly assume, as did the district court, that because Rule G-1(ii) lists "the activities of the bank which shall constitute municipal securities dealer activities," a bank or a division of a bank which performs any activity on the list is a "municipal securities dealer." But again, Rule G-1 announces itself to be a definition of "Separately Identifiable Department or Division of a Bank," not a definition of "municipal securities dealer." Moreover, Rule G-1(i) explains that to come within that rubric, the department or division must be "that unit of the bank which conducts all of the activities of the bank related to the conduct of business as a municipal securities dealer ('municipal securities dealer activities'), as such activities are hereinafter defined" (emphasis added). So the language of Rule G-1(i) confirms the list does not specify that a bank department or division that engages in any municipal securities dealer activities is a municipal securities dealer. Rather, as Rule G-1(i) explains, the list applies only to units that do "conduct ... business as a municipal securities dealer." And such a unit can be considered as a "separately identifiable department or division of a bank" for regulatory purposes only if it conducts all (not any ) of the bank's listed "municipal securities dealer activities"-including Rule G-1(a)(ii)(A), "underwriting, trading and sales of municipal securities." The difference between "all" and "any" in this context is stark. Eating dinner is a food critic activity, but that does not mean we are a panel of food critics because we eat dinner. In sum, the CTD is not a "municipal securities dealer," as it does not trade in securities on its own account, as the statutory definition requires. Nothing in the MSRB provides-or could permissibly provide-otherwise. The CTD therefore cannot be a "Bank Dealer" for purposes of Rule D-8, and Rule G-35 therefore does not subject it to FINRA's arbitration rules. B.

11209928-25715

OPINION & ORDER BAER, District Judge. Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thought between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.). Plaintiff Housing Works, Inc. (“Housing Works”) brings this action to permanently enjoin the defendants from enforcing a rule of the City of New York that limits to 50 the size of groups conducting expressive activity on the steps of City Hall or to 150 the size of groups assembling on the adjacent plaza. This lawsuit is another in a long line of First Amendment cases involving the City which Judge Calabresi recently characterized as “a relentless onslaught of First Amendment litigation.” See Tunick v. Safir, 209 F.3d 67, (2d Cir.2000). This Court has twice previously granted the plaintiff a preliminary injunction against similar policies of the New York City Police Department. See Housing Works, Inc. v. Safir, et. al., 1998 WL 823614 (S.D.N.Y. Nov.25, 1998) [hereinafter Housing Works II], stay granted in part, 1998 WL 824534 (2d Cir., Nov.30, 1998) (order issuing partial stay later withdrawn); 1998 WL 409701 (S.D.N.Y. July 21, 1998) [hereinafter Housing Works /]. For the reasons set forth below, this Court now grants plaintiffs request for a permanent injunction. I. Background A. The Parties Plaintiff is a not-for-profit organization that provides housing and services and advocates on behalf of persons with AIDS and HIV in New York City. The organization has repeatedly protested the policies of Mayor Rudolph Giuliani and his administration concerning what it has provided (or not provided) in the way of services to persons afflicted with AIDS. On June 16, 1999, the City promulgated rules which codified the City’s policy which limited to 50 the number of persons permitted to engage in expressive conduct on the steps of City Hall. After further amendment, public review, and comment, the rules were made final on January 19, 2000. See 55 RCNY, Ch. 9 (2000) (hereinafter “Final Rules”). B. Facts The following uncontested facts are taken from the submissions of the parties. On July 14, 1998, plaintiff initiated the instant litigation, seeking a preliminary injunction against the defendants. At that point, the City had limited press conferences on the steps of City Hall to 25 participants. This Court, in Housing Works I, issued a preliminary injunction permitting the plaintiffs to hold a press conference involving not more than fifty people on the steps of City Hall. As of September 23, 1998, the New York City Police Department (“NYPD”) concluded that no events of any type, without exception, could take place on the steps of City Hall. (See deposition testimony of Deputy Inspector Pedro Pineiro, November 16, 1998). The very next month to the day, the City administration hosted some 5000 invited guests to a celebration commemorating the World Series victory of the New York Yankees. The ceremony, authorized and attended by the Mayor and Commissioner Safir (the “Commissioner”) took place on the steps and plaza of City Hall. Some two weeks later, on November 6, 1998, the defendants denied the plaintiffs request for a December 1 event commemorating World AIDS Day planned for the steps of City Hall. Thereafter, on November 10,1998, the City adopted a new policy with respect to assembly in the vicinity of City Hall. This policy, approved by the Commissioner, provided that public gatherings “will not be permitted within certain protective zones” and that government officials, private persons, and the like would be directed “to such alternative locations, to the extent feasible as will permit the event to occur within proximity of the protective zones.” Under this policy, allegedly adopted for security purposes, the Commissioner could authorize the use of City Hall steps and plaza for ceremonial occasions that were, inter alia, (1) of extraordinary public interest; (2) unique to city hall; (3) unique, non-annual events of civic and city-wide import (e.g. inaugurations, visits by world leaders, sports achievements, etc.); and (4) require a ticket for entry. The City hosted a large ceremony on the steps of City Hall for John Glenn and other space shuttle astronauts on November 16, 1998. Some 3,000 tickets were distributed in advance of the event, and access to the area in front of City Hall was allowed in the same manner as the previous Yankees event. On December 1,1998, the plaintiff held a press conference and a rally commemorating World AIDS Day in the immediate vicinity of City Hall, pursuant to the order of this Court and the order of the Second Circuit. See Housing Works II, Housing Works, Inc. v. Safir, 1998 WL 824534, No. 98-9559 (2d Cir., Nov. 30, 1998) (emergency stay denied but injunction modified). The event, a press conference, was held in the plaza in front of City Hall, at a distance from the steps of City Hall. The area was blocked off with metal barricades that created three separate “pens,” one for speakers (approximately 50 people), and one for participants (approximately 200 people) and a third for the press. On that same day, the plaintiff held a separate 24-hour vigil to mark World AIDS day at the south end of City Hall Park at which the number of participants was not restricted. (See Transcript of Aug. 27, 1999 Hearing, cross-examination of Charles King). A group of approximately 15 City Council members held a press conference on the steps of City Hall on December 7, 1998. The press conference was allowed despite the fact that no determination had been made by the NYPD as to .whether the event satisfied the November 10, 1998 restrictions. Thereafter, on December 12, 1999, representatives of the union representing school principals asked permission to hold a rally on February 11,1999 on the steps and in the plaza. The record reflects that the NYPD denied this request. A group of approximately 8 City Council members, 13 members of the public, and several City Council staffers held a press conference on the steps of City Hall, in violation of the November 10, 1998 policy restrictions on December 20, 1998. On the same day, the City itself hosted a press conference in violation of the November 10, 1998 policy restrictions. The conference was held on the plaza in front of City Hall, at which the Mayor presented a new yellow cab to a cabbie whose taxicab was destroyed when a Lower East Side parking garage collapsed. Metal barricades were absent. Approximately 17 City Council members held a press conference on the steps of City Hall on February 10, 1999, again in violation of the November 10, 1998 policy restrictions. Thereafter, on February 23, 1999, the November 10, 1998 policy was amended. The amendments provided that all persons entering the City Hall area were subject to metal detectors and other searches; no more than 50 persons were permitted “in an area of the City Hall plaza to be designated by the Municipal Security Section”; and a group of no more than 50 person could hold a press conference, rally, or demonstration on the steps of City Hall, but only if a City Council member had invited the group to hold its event on the steps and was present at the event. Any group wishing to hold such an event without a sponsoring City Council member’s invitation and presence was required to hold the event in the portion of the plaza furthest away from City Hall. There were some notable additional exclusions in the February 1999 amendments to the November 1998 policy. The new restrictions, including the 50 person limit, did not apply to “public ceremonies and commemorations, inaugurations, award ceremonies, celebrations, festivals and similar events which have traditionally been organized or sponsored by the City of New York and administered by the Department of Citywide Administrative Services and/or the Department of Parks and Recreation.” On March 10, 1999 a group called “Movement for Change” held a press conference on the steps of City Hall with 45 members of the public, and two City Council members. Many others from the press and public stood on the plaza abutting the steps. This press conference was held in apparent violation of the February 23, 1999 amended policy. The plaintiff held a press conference and rally at City Hall in a portion of the plaza furthest from the steps of City Hall on March 23; 1999. The defendants utilized metal barriers to confine the participants. By letter dated April 6,1999, and following a conference with the Court, the City suspended for 90 days the requirement that events take place on the steps only with a City Council member present as a sponsor. Also, additional conditions were imposed on all events on the steps during the 90-day period: (1) prior notice must be given to NYPD; (2) the press conference/demonstration could last for no longer than an hour; (3) no more than 50 people could be present at the event; (4) each group was permitted to have only one event per day; and (5) no more than 2 press conferences/demonstrations were permitted per day. On June 16, 1999, the defendants informed this Court that they had promulgated new rules, (in part it is assumed as a consequence of the renovation that had recently been completed in front of City Hall and in the Park) governing events on and near the steps of City Hall similar to the draft rules from February 1999. Notably, the rules included a 50 person limit “on the City Hall steps and sidewalk fronting City Hall.” Again, the City excluded “public ceremonies and commemorations, inaugurations, award ceremonies, celebrations, festivals, and similar events which have traditionally been organized or sponsored by the City of New York and administered by the Department of Citywide Administrative Services and/or the Department of Parks and Recreation.” On August 27, 1999 and again on October 5, 1999, this Court heard testimony from plaintiff and defense witnesses on the rationale, scope, and merits of the defendants’ policy regarding access to the steps of City Hall. The City issued its rules in final form on January 19, 2000. The Final Rules require that persons or groups seeking to hold a press conference or engage in expressive conduct on the steps, sidewalk and plaza area fronting City Hall must apply for a permit with the NYPD. Such activity, if permitted, must conclude within two hours; and no more than 50 people may engage in First Amendment activity on the steps of City Hall; otherwise, 150 people may participate in such activity on the plaza adjacent to the south steps of City Hall. II. Discussion The standard for a permanent injunction is essentially the same as for a preliminary injunction with the exception that the moving party must show actual success on the merits. See, e.g., University of Texas v. Camenisch, 451 U.S, 390, 392, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). This Circuit has noted that, as courts of equity, courts “may go much further both to give or to withhold relief in furtherance of the public interest than where only private interests are involved.” Brown & Williamson Tobacco Corp. v. Engman, 527 F.2d 1115, 1121 (2d Cir.1975), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976). This Court has previously observed that “[pjlaintiffs right to protest the City’s lack of services for persons afflicted with AIDS and HIV is a fundamental right grounded in the First Amendment, as the parties agree.” See Housing Works I, 1998 WL 409701 at *2. Yet, the First Amendment does not guarantee an absolute right to speak, assemble or protest. See Olivieri v. Ward, 801 F.2d 602, 605 (2d Cir.1986) cert. denied, 480 U.S. 917, 107 S.Ct. 1371, 94 L.Ed.2d 687 (1987). The government may impose reasonable restrictions as to the time, place, and manner of the plaintiffs activity if such regulations are necessary to further significant governmental interests. Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). However, the “government has no power to restrict such activity because of its message.” Id. (footnote omitted). The well-established tests for assessing the validity of governmental restrictions on speech require that the regulations (1) be content-neutral, (2) be narrowly tailored to meet a significant governmental interest, and (3) leave open ample alternative means of communication. Clark v. Community for Creative NonViolence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). In Lehman v. City of Shaker Heights, Justice Blackman elaborated on the balancing process which is required in these situations: “Although American constitutional jurisprudence, in the light of the First Amendment, has been jealous to preserve access to public places for purposes of free speech, the nature of the forum and the conflicting interests involved have remained important in determining the degree of protection afforded by the Amendment to the speech in question”. 418 U.S. 298, 302-303, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (citations omitted). The steps and plaza of City Hall are by their very nature, quintessential public forums. “These forums include those places which by long tradition or by government fiat have been devoted to assembly and debate, such as parks, streets, and sidewalks.” See Burson v. Freeman, 504 U.S. 191, 196, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (citations omitted). “Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.). Such expressive activity, however, even in a quintessential public forum, may interfere with other important activities for which the property is used. See Burson v. Freeman, 504 U.S. 191, 197, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992). See also Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (“[I]n places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed.”). A. The City’s Jan. 19, 2000 Rules are Content-based and Grant City Officials Excessive Discretion It is a fundamental tenet of First Amendment principles that restrictions on the right to free speech or assembly must not be so vague as to afford unbridled discretion to the government authority seeking to abridge those rights. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). The Supreme Court has observed that “[a] government regulation that allows arbitrary application is ‘inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of supporting a particular point of view.’ ” See Forsyth County v. Nationalist Movement, 505 U.S. 123, 130-31, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (quoting Heffron v. International Society for Krishna Consciousness Inc., 452 U.S. 640, 649, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981)). Consequently, reasonable time, place, and manner restrictions on public speech “must contain ‘narrow, objective, and definite standards to guide’ ” the appropriate authority. Forsyth, 505 U.S. at 130, 112 S.Ct. 2395 (quoting Shuttlesworth at ISO-51, 89 S.Ct. 935 (1969)). Absent such a scheme, “the danger of censorship and of abridgement of our precious First Amendment freedoms is too great.” Id. (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975)). Section 9.02 of the Final Rules refers obliquely to events that “have traditionally been organized or sponsored by the City of New York” and notes that “[a] monthly list of scheduled public events will be available through a designated officer of the Police Department.” Clearly, some governmental functions and activities are undoubtedly events which the City must organize. Mayoral inaugurations and ceremonies honoring civil servants qualify as public events. However, there is nothing in the record that indicates how the City will decide which events may be scheduled as “public events.” The Rules set forth no clear principles that will guide City officials as they decide whether or not the City should sponsor an event. Section 9.02 of the City’s Final Rules explicitly states that “[c]overed activities shall not include public ceremonies and commemorations, inaugurations, awards ceremonies, celebrations, festivals and similar events which have traditionally been organized or sponsored by the City of New York and administered by the Department of Citywide Administrative Services and/or the Department of Parks and Recreation.” By contrast, “covered activities” include press conferences and expressive activities including demonstrations and vigils and are subject to limitations on the number of speakers. Plaintiff suggests that the defendants’ regulations provide limits only on disfavored speakers, while allowing any city-sponsored event to take place without regard to numerical limits. The City claims that § 9.02 allows much larger events to take place on the steps or the plaza only to the extent that such activities may be classified as governmental activities, that are categorically and readily distinguishable from “covered activities.” Such government-sponsored activities have in the past included the commemorations of World Series victories by the New York Yankees and a celebration in honor of astronauts returned from space travel. The City has also organized a number of other governmental events at City Hall including ceremonies to honor police or fire personnel who have distinguished themselves in the line of duty. The defendants further point out that even the May- or and city councilmembers must apply under the Final Rules for a permit if they wish to hold a press conference on the steps of City Hall. Thus, the City argues, the Final Rules do not discriminate based upon the viewpoint or the content of the speech of the permit-seeker. Finally, on February 16, 2000, the defendants submitted a letter to this Court, in effect stipulating that no longer would the City sponsor a host of cultural events which defendants had traditionally sponsored in the vicinity of City Hall. See Letter from Daniel S. Connolly, Special Counsel, to Honorable Harold Baer, Jr. (February 16, 2000); Pre trial Order, Exhibit B. The letter represents that in the future, the City will require that any private organization wishing to conduct events outside City Hall “will be permitted to do so provided they make the appropriate application and abide by the applicable provisions of the rules.” The City had traditionally sponsored a variety of events in the immediate vicinity of City Hall, such as the Young Republicans rally and the Daily News Stickball Tournament. Despite this eleventh hour reversal of unofficial policy, this Court finds that the Final Rules are facially content-based. Nothing in the standards established by the defendants prevents the City from permitting a wide variety of groups access to the steps and plaza of City Hall under § 9.02 of the Final Rules while requiring those who wish to exercise their First Amendment rights to abide by strict limitations on the duration of expressive conduct and the number of participants. The Supreme Court has held that “[o]nee a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.” Police Department of City Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). This Court observes that very little in the Final Rules restricts the City’s ability to designate an event as falling under the § 9.02 exemptions. The Final Rules circumscribe press conferences and expressive conduct while there are a host of activities that could be classified as an event “... which ha[s] traditionally been organized or sponsored by the City of New York.” Put another way, the Final Rules permit the City to exclude virtually any activity which the City chooses to sponsor. For example, should the defendants decide that they wish to hold an event commemorating World Aids Day, the City may presumably invite activists and city residents to attend, and such an event might proceed with several thousand participants. In reality however, the City has decided that only certain events deserve commemoration, and thus any World Aids Day event would presumably be limited to 50 people on the steps of City Hall or 150 people on the plaza. It is hard for this Court to imagine that a celebration of the Yankee’s victory is inherently a governmental activity and worthy of City Hall sponsorship while the commemoration of World Aids Day is relegated to an event with no more than fifty or one hundred and fifty participants. This Court is unpersuaded by the defendants’ argument that if the plaintiff prevails, the City would be required to allow unprecedented access to any private party seeking to hold a large-scale event at City Hall. This is not so. Nothing in this Court’s equitable power could require the defendants to facilitate massive, City Hall-closing events for private parties. It is not the opinion of this Court that the defendants’ past practice of commemorating World Series victories somehow entitles the plaintiff and every other private organization to hold an event in the vicinity of City Hall that shuts down City Hall for the day, creates security risks and brings thousands of spectators and hundreds of police officers to the scene. Rather, this Court observes that the Final Rules, as written, allow the City to practice content-based or viewpoint-based discrimination in deciding which ideas it will celebrate and which it may marginalize, circumscribe, and restrict. The Final Rules fail to set forth principled guidelines that the City must adhere to when presented with a request by a group seeking to hold an arguably non-covered activity, such as a festival or a similar cultural celebration in the immediate vicinity of City Hall. Presumably, if such an activity has in the past been sponsored by the City, it qualifies as an event that has been “traditionally ... sponsored by the City of New York” and will be scheduled as a public event by the City. The Final Rules do not prevent the City from at any time adding additional events to the schedule of activities that may take place on the steps of and in the plaza in front of City Hall under City sponsorship. The vice here is that the choice to sponsor or not sponsor non-covered activity is at the sole, subjective discretion of the defendants. The Final Rules, as drafted, allow City officials to arbitrarily decide the types of activities that the City will sponsor. It is this unfettered discretion that this Court finds unconstitutional. See Forsyth County, 505 U.S. at 130-31, 112 S.Ct. 2395 (1992) (a government regulation that allows arbitrary application is unconstitutional as it “has the potential for becoming a means of supporting a particular point of view”); Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 675 (11th Cir.1984) (accompanying considerable government discretion “is the opportunity to discriminate against a licensee on the basis of what the licensee intends to say....”). Despite the City’s assurances of even-handedness, which this Court does not discount, I am troubled by the fact that if a private organization has political connections to City officials, or is considered worthy of attention by the City, the City has the authority to hold a very large event honoring that organization, whereas an unpopular group (or a group unpopular at City Hall) must go through an application process and may be limited to assembling 50 people in a two hour period on the steps of City Hall. Thus, this Court finds that there are two standards governing the right to assemble on the steps and plaza of City Hall, one for demonstrators, and another for City-sponsored speech. The restrictions, therefore, violate the plaintiffs First Amendment rights. B. The Numerical Limits Imposed by the City’s Final Rules are not Narrowly-Tailored The defendants in this case bear the burden of demonstrating that a time, place, and manner restriction on protected speech is narrowly tailored to serve a significant governmental interest. See Eastern Connecticut Citizens Action Group v. Powers, 723 F.2d 1050, 1052 (2d Cir.1983). In determining whether the defendants have met this burden, this Court “must independently determine the rationality of the government interest implicated and whether the restrictions imposed are narrowly drawn to further that interest.” Olivieri, 801 F.2d 602, 606 (2d Cir.1986). Both parties acknowledge that the City’s interest in protecting the safety and convenience of participants seeking to hold a public forum and the protection of public officials and visitors entering and leaving City Hall is a significant governmental objective. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 650, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Thus, the crucial question is whether this policy is narrowly tailored to serve these significant government interests.

431630-6897

MEMORANDUM A jury found appellant Keith Manuel Johnson guilty of one count of conspiracy to bring in undocumented aliens, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(2)(B)(ii), and three counts of bringing in undocumented aliens, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). We affirm the conviction and sentence. I Johnson first argues that the government lacked the statutory authority to charge him with conspiracy to commit alien smuggling. Section 1324(a)(1) criminalizes certain offenses related to alien smuggling and to harboring and concealing illegal aliens. This section includes a subsection criminalizing conspiracy to commit such acts. See 8 U.S.C. § 1324(a)(l)(A)(v)(I). But the government prosecuted Johnson under § 1324(a)(2), which does not include a subsection specifically criminalizing conspiracy. Johnson argues, based on the maxim expressio uni-us est exclusio alteñus, that we must read Congress’ silence concerning conspiracy in § 1324(a)(2)-eompared with its specific criminalization of conspiracy in § 1324(a)(l)-as a deliberate decision not to criminalize conspiracy under § 1324(a)(2). We disagree. The general conspiracy statute, 18 U.S.C. § 371, applies “[i]f two or more persons conspire ... to commit any offense against the United States” (emphasis added). Accordingly, when Congress drafted § 1324 it knew that a defendant could be charged with conspiracy to commit any crime. It would therefore have been redundant for Congress to insert a separate conspiracy provision in either § 1324(a)(1) or § 1324(a)(2) if the only purpose were to ensure that conspiracy liability would attach to the acts criminalized therein. Inclusion of conspiracy liability in § 1324(a)(1) is not surplusage because it increases what would otherwise be the penalty for conspiracy to commit that crime. The maximum term of imprisonment for conspiracy under § 1324(a)(1) is 10 years if done for the purpose of commercial advantage or financial gain, see 8 U.S.C. § 1324(a)(1)(B)(i); twenty years if the conspiracy causes serious bodily injury or jeopardizes a person’s life, see 8 U.S.C. § 1324(a)(l)(B)(iii); or life imprisonment or death if the conspiracy results in the death of any person, see 8 U.S.C. § 1324(a)(l)(B)(iv). These penalties greatly exceed the 5-year maximum sentence authorized by 18 U.S.C. § 371. Numerous conspiracy statutes increase the penalties for certain kinds of conspiracy in the same fashion. See, e.g., 18 U.S.C. § 351(d) (authorizing life imprisonment for conspiracy to kill or kidnap high federal officials). In this context, the absence of a conspiracy provision in § 1324(a)(2) does not imply a congressional desire to withhold conspiracy liability from that section, but rather a desire to rely on the provisions of the general conspiracy statute. This analysis accords with our recent decision in United States v. Angwin, 271 F.3d 786 (9th Cir.2001), in which we held that the specific provision of aider and abettor liability in § 1324(a)(1) did not support a conclusion that the government could not charge a defendant with aiding and abetting under § 1324(a)(2). Accordingly, we hold that the government had authority to charge Johnson under 18 U.S.C. § 371 for conspiracy to commit acts criminalized under 8 U.S.C. § 1324(a)(2). II The district court instructed the jury to convict if Johnson “brought or attempted to bring a person who was an alien into the United States.” The jury instruction’s use of the disjunctive conjunction “or” tracked the text of the statute. 8 U.S.C. § 1324(a)(2). A. Specific unanimity instruction Johnson argues that the district court should have given a specific unanimity instruction. Because Johnson did not object to the instruction at trial, our review is for plain error. See United States v. Payseno, 782 F.2d 832, 834 (9th Cir.1986). A specific unanimity instruction is ordinarily required only when there is “a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts.” United States v. Kim, 196 F.3d 1079, 1082 (9th Cir.1999) (internal quotation marks and citations omitted). The present case involves a single set of facts, and the jury did not indicate any confusion to the court. We therefore hold that the failure to give a specific unanimity instruction was not plain error. B. Motions for acquittal Johnson next argues that the jury could not legally have convicted him of bringing aliens to the United States. In essence, he claims that the aliens had to effect an entry into the United States in order to sustain his conviction under 8 U.S.C. § 1324(a)(2). However, as we just held in United States v. Gonzalez-Torres, No. 00-50543, 2001 WL 1568373 (9th Cir. Dec.11, 2001), “entry” into the United States, in the sense in which that term is used in 8 U.S.C. § 1326, is not a requirement for a conviction under 8 U.S.C. § 1324(a)(2). Compare 8 U.S.C. § 1326 (applying penalties to an alien who “enters” the United States) with 8 U.S.C. § 1324(a)(2) (requiring that alien have been brought “to,” not “into,” the United States). Further, § 1324(a)(2) refers to the bringing of an alien to the “United States,” in contrast to § 1324(a)(1), which applies to the bringing of certain aliens to the United States “at a place other than a designated port of entry.” The omission of the reference to a designated port of entry in § 1324(a)(2) suggests that the subsection is violated even if an alien is brought to the United States at a port of entry. The district court therefore did not err in dismissing Johnson’s motions for acquittal. Ill Johnson also argues that the district court abused its discretion in allowing the government to present evidence of Johnson’s cash deposits and of his requests that a coworker deposit money on his behalf. Johnson appears to argue that this evidence should have been excluded under Federal Rule of Evidence 401 because it was not relevant, or under Federal Rule of Evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice. We disagree. We review a district court’s evidentiary rulings for abuse of discretion. See United States v. Fleming, 215 F.3d 930, 938 (9th Cir.2000). The government prosecuted Johnson under § 1324(a)(2)(B)(ii), which applies to an “offense done for the purpose of commercial advantage or private financial gain.” It is easy to see how the evidence was relevant. Unusual deposits in Johnson’s account, or unusual efforts by Johnson to avoid depositing cash in his own account, could establish that Johnson was receiving “commercial advantage” or “private financial gain” from smuggling activity. Further, Johnson has not alleged in what way the evidence resulted in prejudice that outweighed its probative value. We therefore affirm the district court’s evidentiary rulings. IV

3833928-22423

KETHLEDGE, J., delivered the opinion of the court, in which KENNEDY, J., joined. CLAY, J. (pp. 380-93), delivered a separate dissenting opinion. OPINION KETHLEDGE, Circuit Judge. Mark Storey’s principal argument in his federal habeas petition is that he should get a new trial because his lawyer in his first trial was ineffective. It is common ground in this case that Storey’s trial lawyer did a poor job. But the Supreme Court has gone out of its way to make clear that, in order to obtain a new trial on ineffective-assistance grounds, the petitioner must do more than show that he had a bad lawyer- — even a really bad one. Instead, the petitioner must also show prejudice, which means he must show a reasonable likelihood that his lawyer’s bad performance made a difference in the outcome of his trial. The Court’s precedents make clear that the former showing by no means leads inevitably to the latter. Whether a petitioner can show prejudice depends in large part on the evidence in the case. The evidence here included the testimony of three witnesses who testified that, on separate occasions, Storey had boasted to them about killing Nathan Wilson. There is little likelihood that even an effective defense lawyer could have overcome that testimony, if indeed the trier of fact found it credible. The trial judge who watched each of these witnesses testify specifically found their testimony to be credible on this point. Another trial judge who watched two of these witnesses change their testimony, in a hearing over a decade later, specifically found their recantations not to be credible. And so, in the end, Storey’s petition asks us to set aside the credibility determinations of the two judges who watched these witnesses testify first-hand, in favor of contrary credibility determinations of our own. The record provides us with no basis to take that extraordinary step in this case. We therefore affirm the district court’s denial of the writ. I. A. Wilson worked at the Gold Mine, a Detroit gold and jewelry shop that also reputedly did its share of fencing. A bulletproof plexiglass partition and a sliding-steel door separated the customer counter from the employee-only area of the store. The store’s inventory was displayed in a see-through case on the employee side of the partition. A loaded .357 Magnum revolver typically rested in plain view on top of the case. Sometime between 2 and 3 p.m. on November 7, 1984, Wilson was found dead in his chair behind the plexiglass at the shop. He had been shot three times in the back of the head. One shot was made with the gun pressed directly against his head. The sliding steel door was open. About $10,000 worth of jewelry, $1,000 cash, and the .357 Magnum were missing from the store. Mark Storey later admitted that he was in the employee-only area of the store between approximately 1 and 2 p.m. on the day of the shooting. He said that Wilson let him in, along with his friend Shawn Coats, so that Storey could sell some stolen jewelry to the store. Storey and Coats smoked marijuana while they were back there. About three weeks later, Storey tried to sell the store a gold necklace. The store’s owner, James Floyd, recognized the necklace as one that had been stolen when Wilson was murdered. The police investigated. Eventually, in connection with Wilson’s killing, the State of Michigan charged Storey with first-degree murder and firearm possession during a felony. B. Storey was just shy of 16 years old on the date of the murder, so the Wayne County Probate Court’s Juvenile Division initially held jurisdiction over his case. But that court waived jurisdiction at the State’s request, thereby sending the case to the Michigan Recorder’s Court for Storey to be tried as an adult. Neither Storey’s counsel at the time, nor his counsel at trial, Charles Campbell, appealed the waiver. After a four-day bench trial in the Recorder’s Court, Judge James Chylinski found Storey guilty beyond a reasonable doubt on both counts. He emphasized that “the crux of the case” was whether three witnesses — Darin Henderson, David Kidd, and William Walls — were credible when they testified that Storey had told them that he killed Wilson. And Judge Chylinski found that each of these witnesses was credible when he so testified. He sentenced Storey to life in prison, plus two years for the gun charge. Storey appealed, claiming only that the evidence was insufficient to convict him. The Michigan Court of Appeals affirmed the trial court’s judgment, and the Michigan Supreme Court denied leave to appeal. Storey then pursued state collateral remedies. First he filed a petition for habeas corpus in the Recorder’s Court, which Judge Chylinski denied in 1989. Five years later, Storey filed a motion for relief from judgment in the same court, claiming for the first time that his trial counsel had been ineffective, among other claims. He also moved for an evidentiary hearing with respect to his ineffective-assistance claim. See generally People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973). By then Judge Harvey Tennen had replaced Judge Chylinski. Judge Tennen granted the motion for a Ginther hearing, at which a criminal-defense lawyer offered expert testimony that Campbell had done a poor job before and during trial. Judge Tennen thereafter ordered a new trial based on Campbell’s failure to prepare adequately for trial and to obtain discovery regarding the State’s witnesses. But the State appealed, and the Michigan Court of Appeals promptly remanded the case for a determination as to whether Storey had shown cause for failing to present his ineffective-assistance claim on direct appeal. On remand, Judge Tennen found that Storey had not shown cause for that failure, so he vacated his earlier order and denied Storey’s motion for a new trial. Storey then filed two applications for leave to appeal to the Michigan Court of Appeals. The first application included a claim that the Juvenile Division’s waiver of jurisdiction had been proeedurally defective. The Court of Appeals denied that application in a stock order entered under Michigan Court Rule 6.508(D). The second application included a claim that Campbell had been ineffective as a result of his failure to challenge the juvenile-waiver order. In addition, that application challenged Judge Tennen’s determination that Storey had not shown cause for his failure to present a claim of ineffective assistance in his direct appeal. The Court of Appeals denied that application for lack of merit. The Michigan Supreme Court denied leave to appeal from either denial. In 1999, Storey filed a second motion for relief from judgment before the state trial court. This motion included a new claim that two of the State’s witnesses at his trial — Henderson and Kidd — had perjured themselves when they testified that Storey had told them he shot Wilson. Judge Tennen held another Ginther hearing with respect to the motion. Although both Henderson and Kidd recanted their trial testimony during the hearing, Judge Tennen found that neither recantation was credible. Judge Tennen also held that Storey’s other claims were proeedurally barred. He thus denied Storey’s motion for a new trial. The Michigan Court of Appeals and Michigan Supreme Court each denied leave to appeal. . C. Storey turned finally to the federal courts. In 2001, he filed a federal habeas petition comprising eight claims. In September 2003, the district court granted relief on one of them: that Storey’s appellate counsel had been ineffective by failing to argue that Campbell had been ineffective at trial. (The 2001 petition did not itself include, however, a claim that Campbell had been ineffective.) As relief, the district court ordered that Storey be granted a new direct appeal. The district court thereafter closed the case without staying, dismissing, or otherwise taking any action with respect to Storey’s other claims. Per the district court’s order, the Michigan Court of Appeals granted Storey a new appeal. Before proceeding with that appeal, however, Storey filed yet another motion for a new trial before the trial court, again presenting his ineffective-assistance and perjured-testimony claims. Judge Michael Hathaway — who was by then presiding — denied the motion, finding among other things that Judge Chylinski had been better positioned than anyone to judge each witness’s credibility. So Storey proceeded with his second direct appeal before the Michigan Court of Appeals, raising ten claims. The court rejected all of them and affirmed the trial court’s original judgment. The Michigan Supreme Court denied leave to appeal. Storey then returned to federal district court, filing a new habeas petition in 2006. That petition included several claims that were in his 2001 petition, but four that were not. One of the latter claims was that Campbell had been ineffective at trial. Based on Storey’s inclusion of the new claims, however, the district court held in a June 2009 order that Storey’s new petition was “second or successive” within the meaning of 28 U.S.C. § 2244(b). The district court gave Storey the choice of dropping the new claims or seeking permission from us to file a second or successive petition. See generally id. § 2244(b)(3). Storey did neither, and instead filed a motion for reconsideration. The district court granted the motion, reached the merits of Storey’s claims, and — in an extensively reasoned opinion — rejected all of them. The court therefore denied his petition, though it did grant a certificate of appealability as to each of his claims. This appeal followed. II. A. A threshold question is whether Storey’s 2006 petition is “second or successive” under § 2244(b) because it added claims not included in Storey’s 2001 petition. If it is, we must order the petition dismissed because Storey did not obtain permission to file it. See id. Whether a petition (a term we use interchangeably with “application”) is “second or successive” within the meaning of § 2244(b) does not depend merely on whether the petitioner filed a prior application for habeas relief. The phrase is instead “a ‘term of art’ that is ‘given substance’ by the Supreme Court’s habeas cases.” In re Salem, 631 F.3d 809, 812 (6th Cir.2011) (quoting Slack v. McDaniel, 529 U.S. 473, 486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Accordingly, in a number of cases, the Court has held that an application was not second or successive even though the petitioner had filed an earlier one. In Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), the petitioner filed a second petition that presented a claim identical to one that had been included in an earlier petition. The claim had been unripe when presented in the earlier petition. The Court treated the two petitions as “only one application for habeas relief.]” Id. at 643, 118 S.Ct. 1618. In Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), the Court held that an application that presented a claim that had not been presented in an earlier application, but that would have been unripe if it had been presented then, was not second or successive. Id. at 945, 127 S.Ct. 2842. In Magwood v. Patterson, — U.S.-, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), the Court made clear that an application challenging an earlier criminal judgment did not count for purposes of determining whether a later application challenging a new judgment in the same case was second or successive. Id. at 2797-98. The posture of this ease is somewhat different. In response to Storey’s 2001 petition, the district court ordered the Michigan courts to grant him a new direct appeal. The Michigan courts did so, but ultimately affirmed the original judgment in his case. Storey filed a second petition in 2006, which included some new claims that were undisputedly ripe for inclusion in his earlier petition. The issue, then, is whether the fact of Storey’s new appeal, standing alone, serves to “reset” the “counter” of his applications to zero. In re Williams, 444 F.3d 233, 235 (4th Cir.2006) (internal quotation marks omitted). There is a circuit split on this issue, though perhaps now a stale one. These cases involve applications under both §§ 2254 and 2255, though courts do not distinguish between those sections for purposes of the second-or-successive determination. See, e.g., id. (“This court and others have repeatedly cited § 2254 and § 2255 interchangeably in such circumstances”). Seven circuits — the Second, Third, Fourth, Seventh, Ninth, Tenth, and Eleventh — hold that the tally of applications is reset to zero after the petitioner concludes a direct appeal that was ordered in response to an earlier petition. See Urinyi v. United States, 607 F.3d 318, 321 (2d Cir.2010) (per curiam) (collecting cases). In those cases, as in this one, the reason why the petitioner was granted a new appeal is that his counsel was ineffective with respect to his first direct appeal; and these courts reason that such a petitioner should be given the same clean slate with respect to habeas review as a defendant whose counsel did not “bunglef ]” his first direct appeal. See, e.g., In re Goddard, 170 F.3d 435, 437 (4th Cir.1999). The upshot of this rule is that the petitioner can eventually seek habeas relief on all of the claims presented in his remedial appeal, in which presumably he will have competent counsel. See, e.g., id. at 437 & n. 1. (One important limitation on this rule, however, is that the petitioner cannot “resurrect” claims that the district court “denied on the merits” in his first petition. See In re Williams, 444 F.3d at 236.) Two circuits — the First and the Fifth-hold that a post-remedial-appeal petition is second or successive if it includes claims that could have been included, but were not, in the first petition. See United States v. Orozco-Ramirez, 211 F.3d 862, 870-71 (5th Cir.2000); Pratt v. United States, 129 F.3d 54, 61 (1st Cir.1997). These courts invoke what they call “the spirit of AEDPA’s restrictions^]” and they reason that their rule “serves the singularly salutary purpose of forcing federal habeas petitioners to think through all potential post-conviction claims and to consolidate them for unitary presentation to the district court” in the first petition filed. Pratt, 129 F.3d at 61; see also Orozco-Ramirez, 211 F.3d at 870-71. To which one might respond that, in many cases, the person doing the thinking is the petitioner himself. We think there is a reason why no circuit has adopted the minority rule since 2000: namely, the Supreme Court’s decision the same year in Slack Slack’s first federal habeas petition included claims that had not been exhausted in state court. The district court dismissed the petition without prejudice and Slack returned to state court to exhaust those claims. He then filed in federal court a second petition that included claims not included in his first petition. That petition, the district court and Ninth Circuit held, was “second or successive” as a result of those claims. Slack, 529 U.S. at 479-80, 120 S.Ct. 1595. The Supreme Court reversed. As an initial matter, the Court noted that “preAEDPA law govern[ed]” that case, though it hastened to add that “we do not suggest the definition of second or successive would be different under AEDPA.” Id. at 486, 120 S.Ct. 1595. In any event, what matters for our purposes was the reasoning of the Court’s decision: The State contends that the prisoner, upon his return to federal court, should be restricted to the claims made in his initial petition. Neither Rose v. Lundy [, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) ] nor Martinez-Villareal requires this result, which would limit a prisoner to claims made in a pleading that is often uncounseled, handwritten, and pending in federal court only until the state identifies one unexhausted claim. The proposed rule would bar the prisoner from raising nonfrivolous claims developed in the subsequent state exhaustion proceedings contemplated by the Rose dismissal, even though a federal court had yet to review a single constitutional claim. Slack, 529 U.S. at 487,120 S.Ct. 1595. This reasoning is virtually identical to that followed by the majority of circuits with respect to the question presented here. And it effectively rejects the contrary reasoning of the two circuits that follow the minority rule. It is true that, in these cases, unlike Slack, the district court by definition has ruled on at least “a single constitutional claim”: namely, whether the petitioner is entitled to a new direct appeal. Id. But we think the rest of the quoted passage makes clear that, in these circumstances, the Court would not want the petitioner to be “restricted to the claims made in his initial petition[.]” Id. Instead, we think it clear enough that the petitioner should be able to “rais[e] non-frivolous claims developed in the subsequent” remedial appeal. Id. So it ultimately does not matter what we think, as an original matter, of the respective rationales offered by the majority and minority circuits for their rules. The Supreme Court has told us what it thinks of those rationales. Thus we join the majority of circuits, and hold that a petition filed after a remedial appeal, ordered in response to an earlier petition, is not second or successive within the meaning of § 2244(b) — even if it includes claims that could have been included, but were not, in the first petition. Storey’s 2006 petition is not second and successive. We proceed to consider its merits. B. 1. We first consider Storey’s claim that Campbell’s lack of preparation and generally weak presentation at trial rendered him ineffective in the constitutional sense of the term. The Michigan Court of Appeals rejected this claim on the merits. In doing so, the court correctly recited the test for showing prejudice; but the court later concluded that Storey had not shown prejudice because he had “not demonstrated that the outcome of the trial would have been different” if Campbell had performed effectively. People v. Storey, No. 251271, 2005 WL 711756 (Mich.Ct.App. Mar. 29, 2005). We need not decide whether the latter statement- — -which is an arguably incorrect statement of the Strickland standard for prejudice — requires us to review the state court’s decision on this issue de novo rather than under the deferential standard set forth in § 2254(d). For Storey’s claim fails even under a de novo standard of review. Strickland’s test for prejudice is a demanding one. “The likelihood of a different result must be substantial, not just conceivable.” Richter, 131 S.Ct. at 792. So we turn to the question whether the test is met here. Broadly stated, Storey’s argument is that, absent Campbell’s failure to prepare for trial, obtain discovery, and uncover an alleged deal between the prosecution and David Kidd, there was a reasonable likelihood that he would have been acquitted. (Storey does not argue before us — and has never claimed in his federal habeas petitions — that Campbell was ineffective as a result of his failure to contest the juvenile-waiver order.) We first take up the allegation regarding Kidd. “[T]he mere fact that a witness desires or expects favorable treatment in return for his testimony is insufficient; there must be some assurance or promise from the prosecution that gives rise to a mutual understanding or tacit agreement.” Akrawi v. Booker, 572 F.3d 252, 262 (6th Cir.2009) (emphasis in original). Here, as the district court explained at considered length in its opinion denying the writ, there simply is no evidence of any such agreement between the prosecution and Kidd. All there is, rather, is Kidd’s own assertions years after the trial that he “hoped” that he might get a shorter sentence for his own crimes if he testified favorably for the prosecution in Storey’s trial. That is not proof of an “agreement[,]” id., and thus there is no basis to fault Campbell for failing to discover one. That leaves Campbell’s failures to prepare for trial and to argue effectively once he was there. Those failures are serious, but they are simply not enough to show prejudice in this case, given the record before us. The evidence of Storey’s guilt included the following: Storey’s own admission that he had entered the store’s employee-only area shortly before Wilson was murdered; Floyd’s testimony — specifically found credible by Judge Chylinski— that Storey tried to sell back to Floyd a gold necklace stolen in the murder-robbery; and Henderson’s and Kidd’s testimony that, before the murder, Storey had told each of them that it would be easy to rob the Gold Mine by getting behind the partition and then shooting Wilson. And finally there was the testimony of three witnesses — Henderson, Kidd, and Walls — each of whom testified that Storey had told him, on separate occasions, that he shot Wilson. The judge who observed that testimony found it credible, notwithstanding Campbell’s extensive cross-examinations of these witnesses; and a second judge who observed Henderson and Kidd change their stories years later found their recantations incredible. For good reason, we give “great deference” to those credibility determinations. See Felkner v. Jackson, — U.S. -, 131 S.Ct. 1305, 1307, 179 L.Ed.2d 374 (2011) (internal quotation marks omitted); see also 28 U.S.C. § 2254(e)(1). Storey makes a number of assertions about the motives of these witnesses and the extent to which the judges who assessed their credibility were aware of them; but none of those assertions meaningfully distinguish this case from the raft of habeas cases in which witnesses change their stories years after the peti tioner is sent to prison. We have no lawful basis — or inclination — to displace the credibility findings of the trial judges who observed the testimony of these witnesses first-hand. And that means that Storey cannot show prejudice as the Supreme Court has defined the term. The Michigan Court of Appeals and the district court were both correct to reject this claim. 2. We make shorter work of Storey’s remaining claims. “The extent to which these claims are procedurally defaulted is a nettlesome question; the extent to which they are meritless, much less so.” Benton v. Booker, 403 Fed.Appx. 984, 985 (6th Cir.2010). So we cut to the merits here.

2199752-16572

LAY, Circuit Judge. This is an action by a land developer, Twin City Plaza, Inc., against the bonding company of a sewer contractor. Twin City (hereafter called the owner) sought indemnification from the bonding company for damages arising out of the alleged faulty construction of a sewer line laid originally in 1962 in a new subdivision called Twin Cities Plaza near Council Bluffs, Iowa. The general contractor and principal on the bond was a partnership, Andersen Construction Co., which sublet the construction of “Section III” for the sanitary sewer to J. E. Blue d/b/a J. E. Blue Sewer & Water Co. These contracts were entered into in March and May of 1962. After completion of the original sewer work in May of 1962, the owner’s agent, Henningson, Durham & Richardson, an engineering and architectural firm (hereafter called HDR), issued a certificate of final approval. Thereafter, commencing in December 1962, a portion of the line was replaced by substituting cast iron pipe for the original vitrified clay pipe. This work was also done by J. E. Blue’s company, Bi-States Construction Co., Inc., a newly formed corporation succeeding the sole proprietorship of J. E. Blue d/b/a J. E. Blue Sewer & Water Co. In 1964 the owner found it necessary to uncover and replace 264 feet of the system's main line. The 1964 work was done by another construction company. The owner now seeks indemnity from the contractor’s bonding company for the reconstruction done in 1964. The trial court excluded from evidence testimony by plaintiff’s experts offered to show the alleged causal connection of the ultimate disrepair with the original work performed under the contract covered by the performance bond. At the close of the plaintiff’s evidence the trial court dismissed plaintiff’s claim as failing to make out a prima facie claim for relief. We affirm in part and reverse in part. The issues on appeal may be divided into two phases. First, we deal with the court's exclusion of evidence relating to the “repair” work performed by the “original subcontractor” from December 27, 1962 to January 7, 1963, when J. E. Blue’s Company, Bi-States Construction Co., Inc., replaced the vitrified clay pipes originally specified under the 1962 contract with cast iron pipes. The owner claims certain damage to the sewer line arising from Bi-States’ alleged faulty connection between the cast iron pipe and the clay pipe, performed in December 1962. In an attempt to prove this damage, plaintiff claims that J. E. Blue, as the original subcontractor, had a duty under the original contract to maintain and repair the sewer for a period of two years after completion. It is claimed that the laying of the cast iron pipe was work performed as a “repair” and therefore any faulty performance in the laying of the cast iron pipe was covered under the performance bond. The trial court excluded evidence relating to Bi-States’ “defective connection” of the cast iron pipe with the clay pipe on the ground that this work was not part of the original contract between the owner and the principal under the bond, Andersen Construction Co. We agree with this ruling. The evidence shows that in December 1962 the owner contracted directly with J. E. Blue to replace the original pipe. The trial court ruled that Bi-States Construction Co., Inc., Blue’s newly formed company, in laying the cast iron pipe was performing work outside the original contract. Several facts conclusively establish this: 1. It is admitted that the laying of the cast iron pipe was a “modification" of the original contract decided upon by the owner’s engineer. The laying of 80 foot cast iron pipe was decided upon after discovery of extensive infiltration in the latter part of 1962. As Mr. Bailey, HDR’s chief engineer, stated, “With a vitrified clay pipe where the sewage might infiltrate out and contaminate the water supply, we put in cast iron so there are fewer joints and potential areas to keep the sewage within the main.” Bailey said he decided to “modify the design of the material.” The cast iron pipe came in 20-foot sections whereas the clay pipe was laid in 5-foot sections. The owner had specified the clay pipe on the original contract plans. The modification of the work, calling for a change in material in the pipe and a replacement after the original work had been completed and accepted, was clearly not within the contemplation of the parties when they entered into the original contract. Cf. Salt Lake City v. Smith, 104 F. 457, 466-467 (8 Cir. 1900). The installation of the cast iron pipe was not a “repair” but in fact a reconstruction of the sewer. See Friedman v. Le Noir, 73 Ariz. 333, 241 P.2d 779 (1952); Berry v. McConnell, 187 Mo.App. 673, 173 S.W. 100 (1915). A new contract price was agreed upon, specifying the same unit price as called for with the few sections of cast iron pipe specified on the original contract. This was $1.60 per unit more than the replaced clay pipe. 2. Even though Andersen Construction Co., the original contractor, served only as an intermediary to supply the bond, nevertheless, it existed as more than a mere “shell.” It is significant that at the time of the. new contract as to the modification with cast iron pipe, the original contractor received no notice of the work. 3. Plaintiff’s chief engineer, Mr. Bailey, entered into a new contract directly with Bi-States Construction Co., Inc. as the contractor for the modified work. The owner’s progress estimate recognizes Bi-States Construction Co., Inc. as the contractor on the job. 4. The same progress estimate requires the owner to make payment directly to Bi-States Construction Co., Inc., evidencing the owner’s direct obligation to Bi-States as the contractor. This arrangement is particularly significant in view of the fact that under Nebraska law a subcontractor has no privity with the owner. See Campbell v. Kimball, 87 Neb. 309, 127 N.W. 142 (1910); School Dist. of Beatrice v. Thomas, 51 Neb. 740, 71 N.W. 731 (1897). The payments under the original contract, on the other hand, went directly to Andersen Construction Co., which made no profit from the replacement work as it had under the original contract. Under these circumstances the evidence is susceptible of but a single inference, and the legal relationship of the parties was thus one of law for the court. Cf. Wooddale, Inc. v. Fidelity & Deposit Co., 378 F.2d 627 (8 Cir. 1967). It is clear, as the court found, that Bi-States Construction Co. Inc. was not performing work as a subcontractor operating under the original contract. The fact that the contractor Andersen sent Bi-States Construction Co., Inc. out to inspect the lines in 1964, after receiving the owner’s demand letter for repair in August of 1964, is not in any sense a ratification of the 1962 separate agreement as to the cast iron pipe. Nor does plaintiff’s contention of agency or apparent agency on the 1962 work apply here. Agency arises from the principal’s authority, actual or implied. None existed here. In the instant case Andersen did not even know about the owner’s modification and Bi-States’ separate, agreement to perform. Apparent authority arises from conduct by the principal to cause good faith belief that the agent was acting within the scope of his authority. See Rodine v. Iowa Home Mut. Cas. Co., 171 Neb. 263, 106 N.W.2d 391 (1960). The new contract in December 1962 clearly demonstrates that plaintiff did not misconceive Bi-States’ role as a subcontractor. Plaintiff had no authority, implied or otherwise, under the original agreement to contract directly with the subcontractor, and when it did so, the relationship assumed a new legal meaning. We conclude that the district court properly ruled that any evidence of damage to the sanitary sewer arising from the alleged faulty connection of the cast iron pipe in December 1962 was not covered under the original contract and the performance bond governing the same. This brings us to the second phase of plaintiff’s case. Plaintiff proffered testimony by its engineering experts in an attempt to show that the ultimate damage to the sewer lines was caused by faulty connections made in the laying of the clay pipe at the time of its original construction in 1962. The trial court sustained objections to this evidence generally on the basis that the answers would be speculative and conjectural and therefore not proper evidence. The primary basis of the objections to this evidence related to the fact that other intervening causes (e. g. poor soil conditions, excess surface loads, damage by other contractors, etc.) were also shown to exist. These facts were developed either on defendant’s foundational cross-examination of the experts leading to the objection, or in the hypothesis itself. Defendant, relying upon Nebraska law, now maintains that plaintiff’s hypothetical questions sought the ultimate fact and therefore invaded the province of the jury. However, the federal rule is different, and it governs here. Jones v. Goodlove, 334 F.2d 90 (8 Cir. 1964); Barnes v. Omark Indus., Inc., 369 F.2d 4 (8 Cir. 1966). This court has set forth rules governing hypothetical questions in other cases. See, e. g., Barnes v. Omark Indus., Inc., supra; Harris v. Smith, 372 F.2d 806, 812 (8 Cir. 1967); Grand Island Grain Co. v. Roush Mobile Home Sales, Inc., 391 F.2d 35 (8 Cir. 1968). It would serve little purpose to repeat all of these principles again. When it is deemed necessary that a hypothetical question be used, generally we have held the better view to be that only the basic facts need be assumed in the hypothesis. This does not require a witness to listen to a long detailed hypothesis of other negative factors, as long as the basic conditions are disclosed to give the expert a reasonable foundation from which to give his opinion. When other facts exist which cast a doubt on the conclusion, then these facts are best brought out on cross-examination to test the witness’ credibility. Thus, conflicting factors which weaken opinion evidence are, at least in the federal view, best left to the trier of facts rather than affecting the foundation for admission of the answer itself. When basic foundational conditions are themselves conjecturally premised, it then behooves a court to remove the answer from one of admissible opinion to one of excludable speculation. Thus, a court may exclude evidence where an expert is asked for the speed of a vehicle based upon skid marks, when foundational evidence showing that the skid marks belong to the car in question is totally lacking. See, e. g., Sheets v. Davenport, 181 Neb. 621, 150 N.W.2d 224 (1967). However, when such basic, relevant conditions are proven and the witness possesses sufficient qualifications, the answer is best received for whatever value it may ultimately have. See, e. g., Builders Steel Co. v. Commissioner of Internal Revenue, 179 F.2d 377, 379 (8 Cir. 1950); Hartford Fire Ins. Co. v. Thompson, 175 F.2d 10, 14 (8 Cir. 1949); Dickerson v. Shepard Warner Elev. Co., 287 F.2d 255 (6 Cir. 1961); Bratt v. Western Air Lines, Inc., 155 F.2d 850 (10 Cir. 1946). And this is true, even though the expert may make his observation at a time remote from the event. Cf. Joseph A. Bass Co. v. United States to use of Peter Kiewit Sons’ Co., 340 F.2d 842, 845 (8 Cir. 1965). The proposed draft of the Federal Rules of Evidence published in March 1969, suggest pragmatic rules relating to the admissibility of expert opinions. A distinguished committee of jurists and lawyers have formulated principles which suggest guidelines better to facilitate the use of expert testimony. These particular rules should prove beneficial to the expert witness, the court and especially to the trier of fact’s ability to evaluate the testimony offered. The rules are obviously designed to remove stereotyped, long, belabored and nonsensical hypothetical questions from the arena of trial. They are designed to make expert testimony more communicative to the trier of fact without totally destroying exclusionary rulings. See Rules 7-01, 7-02, 7-03, 7-04 and 7-05 and the Advisory Committee comments pertaining thereto. Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates (1969). Many of these more realistic rules have long been advocated by leading authorities in the evidence field. See, e. g., Ladd, Expert Testimony, 5 Vand.L.Rev. 414 (1952). Under Rule 7-05, relating to “disclosure of facts or data underlying expert opinion,” the Committee proposes: “The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.” See also the Advisory Committee’s note p. 271. We turn now to the facts at hand. The testimony of plaintiff’s chief engineer on the project was excluded when offered to show that damage to the sewer line was at a depth below load damage caused by heavy equipment passing over the same area. Defendant urged that this testimony would contradict an extra judicial statement made by the engineer concerning the same area of damaged line. However, in view of the principles previously discussed, we think this evidence was competent for the jury to consider, notwithstanding statements which might detract from its credibility. The engineer, Mr. Bailey, was highly qualified and the subject matter concerning live and dead load factors of sewer design is a matter peculiarly within the competence of this expertise. Surface load effect upon sewer pipes at various depths depends upon variable factors and is a subject which involves engineering skill and knowledge. See, e. g., “Handbook of Steel Drainage and Highway Construction Products,” p. 42 1967 ed., published by American Iron and Steel Institute. We think this testimony and the engineer’s explanation of it was admissible for jury consideration. Plaintiff offered testimony by its engineers as to their observations of damaged lines and infiltration at a time two years subsequent to the original installation. This was at a time when the pipes were uncovered for ultimate repair. It is true that several intervening factors had taken place before the observations were made. There exists the possibility that one or more of these factors, other than the subcontractor’s alleged faulty construction, had caused the damage. There was evidence that some of the pipe was broken at the time that it was being dug up and exposed in 1964. Nevertheless, as we view the record it was plaintiff’s theory as evidenced by the offers of proof, that the overall damage to the line was caused by the defective initial construction completed in May of 1962. According to plaintiff’s experts, this was allegedly inferable from the fact that the original joint material was observed as discolored in 1964, thereby evidencing that it was not in proper contact with other joint material when originally laid. We once again find that this was admissible evidence and within the proper realm of expert testimony and that it should have ben admitted. Cf. Bratt v. Western Air Lines, Inc., 155 F.2d 850 (10 Cir. 1946). The credibility of such evidence under these circumstances was for the jury to weigh. See Roth v. Bird, 239 F.2d 257, 261, 262 (5 Cir. 1956). Defendant places emphasis upon the fact that plaintiff’s engineers supervised the construction and approved the work. However, the contract itself made clear that the engineer’s certificate of acceptanee did not release the contractor from liability for defective work. See School Dist. No. 65R v. Universal Sur. Co., 178 Neb. 746, 135 N.W.2d 232, 234 (1965). This is not to say that this factor may not become significant in the jury’s weighing the evidence as to whether there was in fact defective workmanship in the original instance. Under Nebraska law, the issues of proximate cause and intervening cause are generally for the jury. Apropos here is the rule as approved by the Nebraska Supreme Court in Petracek v. Haas O. K. Rubber Welders, Inc., 176 Neb. 438, 444, 126 N.W.2d 466, 470 (1964), quoting from Howell v. Robinson Iron & Metal Co., 173 Neb. 445, 113 N.W.2d 584: “ ‘The burden of a plaintiff, relying on circumstantial evidence to sustain a cause of action for damages, does not require him to exclude the possibility that damages flowed from some other cause other than the one on which he relies.’ ”

2811915-12147

OPINION MASTERSON, District Judge. Plaintiff, Jenn-Air Products Co., Inc., instituted this action on January 18, 1965 in the District Court for the Northern District of Indiana, alleging infringement by the defendant of its patent United States Letters Patent Number 3,110,357. The suit was transferred to this Court on September 23, 1965, and, several months later, plaintiff added a claim for infringement of another of its patents, United States Letters Patent Number 3,085,647, to the suit. Original and exclusive jurisdiction of this action exists here pursuant to Title 28 U.S.C.A. § 1338, and venue is properly established pursuant to Title 28 U.S.C.A. § 1400. Plaintiff currently moves to amend and supplement its complaint a second time under Rule 15 of the Federal Rules of Civil Procedure. (Although the plaintiff’s motion is a motion to amend and supplement, it can be treated simply as a motion to amend.) Plaintiff seeks to make a number of amendments to its original complaint and the defendant has opposed all of them. The plaintiff has argued preliminarily that certain of defendant’s contentions, such as an argument relating to the statute of limitations, are affirmative defenses, and are not raised properly as objections to the motion to amend. In view of both the omplexity of the issues involved in certain of defendant’s affirmative defenses and the early pre-trial stages at which this case is, the Court will not consider at this time the affirmative defenses raised by the defendant. Plaintiff’s motion may be clarified by categorizing the requested amendments and considering them seriatim. Basically plaintiff wishes to make three amendments : (1) inclusion of a new cause of action charging the defendant with infringement of two additional patents, United States Letters Patent Numbers 2,548,607 and 2,784,661; (2) inclusion of a claim charging the defendant with unfair competition; and (3) inclusion of two claims charging the defendant with libel, libel per se, and trade disparagement (hereinafter referred to as the libel claims). For reasons discussed below, plaintiff’s motion to amend is granted in its entirety. Claims for Patent Infringement: Plaintiff seeks to charge defendant with infringement of two additional patents, United States Letters Patent Numbers 2,548,607 and 2,784,661. See ¶s 4, 5, 8, 9, 10, 11, 12 and 13 of plaintiff’s proposed amended complaint. These patents were issued respectively on April 10, 1951, and March 12, 1957. Plaintiff has not, until this time, asserted any claim against the defendant for infringement of these patents. Accordingly, defendant opposes this part of the amendment on the basis that the plaintiff is barred by estoppel and laches, and that addition of these claims to the action will prejudice him by complicating and delaying final determination of the action. Federal Rule 15(a) is generally applied liberally, even when the amendment adds an entirely new cause of action. See Cunningham v. Jaffe, 37 F.R.D. 431, 436 (W.D.S.C., Greenville Division, 1965), and, generally, Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L. Ed.2d 222 (1962). See also, Moore, supra, Volume 3, ¶ 15.08 [2] and cases cited therein. Leave of court is necessary, however, when the motion to amend is made, as here, more than twenty days after the service of a responsive pleading, and leave will be denied when the amendments are considered to be prejudicial to the opposing party or to have been interposed for reasons of delay. See, Harvey v. Eimco, 32 F.R.D. 598, 599 (E.D.Pa., 1963), and Friedman v. Transamerica Corp., 5 F.R.D. 115 (D.C.Del., 1946). Although plaintiff has not explained why he has delayed so long in bringing these causes of action, such delay itself will not serve as a basis for denying his motion unless the defendant is prejudiced. See, Coopersmith Bros., Inc. v. Stefko, 30 F.R.D. 1, 2 (E.D.Pa., 1962), and Moore, supra, ¶ 14.08 [4], p. 901. Moreover, such prejudice ordinarily is not considered to have occurred unless the motion is made during or after the actual trial. See e. g., Amco Engineering Co. v. Bud Radio, Inc., 38 F.R.D. 51, 53 (N.D.Ohio, E.D.1965); Continental Gin Company v. Freeman, 39 F.R.D. 351, 352 (N.D.Miss., Greenville Division, 1965); Heilig v. Studebaker Corp., 347 F.2d 686, 690 (C.A. 10, 1965). In view of the fact that trial of this case is at least several months away and discovery procedures are just starting, granting of this part of plaintiff’s motion to amend will not unduly prejudice the defendant. Since these patents are related to those already involved in the case defendant was doubtless aware of the likelihood of this amendment and can adequately prepare his defense to these new claims before the case is scheduled for trial. Moreover, if plaintiff’s motion were denied here a separate action against the defendant could be instituted, and, in the absence of creating undue complications at trial, it is clearly preferable to dispose of all the contentions between these parties in one proceeding. Although defendant may have a good affirmative defense to these infringement actions based upon the doctrine of estoppel and laches, this can only be determined after the trial on the merits because such defenses must be based upon factual findings relating to the time when plaintiff first learned of defendant’s activities. See generally, Holman v. Oil Well Supply Co., 83 F.2d 538 (C.A. 3, 1936); Skinner v. Aluminum Co. of America, 105 F.Supp. 635 (W.D.Pa., 1952). Claim of Unfair Competition: Plaintiff moves to amend its complaint to include a charge of unfair competition by the defendant arising from both its alleged acts of infringement and from its pattern of copying and duplication of plaintiff’s products. See ,fls 20 and 31 of proposed complaint. The defendant opposes this aspect of the amendment on a number of grounds. One clear limitation upon granting Rule 15 motions is that granting such amendments should not serve to enlarge federal jurisdiction. See, Falls Industries, Inc. v. Consolidated Chemical Indus., Inc., 258 F.2d 277, 285-286 (C.A. 5, 1958). The defendant contends generally that the plaintiff should not be able by amendment to receive a hearing in federal court of matters which would not be subject to original jurisdiction here. He claims that federal jurisdiction does not extend to the unfair competition claim because this claim refers to non-patented, as well as patented, products of the plaintiff. It is clear that this Court does have jurisdiction, pursuant to Title 28 U.S.C.A. § 1338(b), of at least that part of the unfair competition claim which relates to the patents at issue: “(b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent or trade-mark laws.” The statutory requirement is merely that the principal related claim be “substantial”, which has been construed to mean that the patent claim need only be not frivolous or contrary to controlling law, See O’Brien v. Westinghouse Electric Corporation, 293 F.2d 1, 11-13 (C.A. 3, 1961), and these patent claims clearly satisfy that standard. Defendant, however, has cited authority for dismissing that part of plaintiff’s claim which is related to nonpatented products. See, Algren Watch Findings Co. v. Kalinsky, 197 F.2d 69, 71-72 (C.A. 2, 1952); Hook v. Hook and Ackerman, Inc., 233 F.2d 180, 183 (C.A. 3, 1956); Darsyn Laboratories v. Lenox Laboratories, 120 F.Supp. 42, 53-54 (D.C.N.J., 1954). Dismissal of such unrelated claims does serve the positive policy interest of precluding litigants’ use of a “ * * * collusive back door approach to the federal court”. O’Brien, supra, 293 F.2d at 11. The distinction among plaintiff’s unfair competition claims which the defendant advances is difficult to apply here because, unlike the situation in Darsyn, supra, for example, the plaintiff has commingled all his claims of unfair competition. Moreover, these problems need not even be considered because it is clear that this Court has the power to adjudicate the entire unfair competition claim pursuant to the doctrine of pendent jurisdiction. See, Hurn v. Oursler, 289 U.S. 238, 243, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), and United Mine Workers of America v. Gibbs, 383 U.S. 715, 83 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Codification of this doctrine in Title 28 U.S.C.A. § 1338(b) was in no way intended to limit this Court’s general jurisdictional powers. See, Strachman v. Palmer, 177 F.2d 427, 432, 12 A.L.R.2d 687 (C.A.1, concurring opinion of Magruder, 1949). Thus, although part of plaintiff’s unfair competition claim might not be such as to satisfy the terms of Title 28 U.S.C.A. § 1338(b), there is still federal jurisdiction over this claim which shares a common nucleus of operative fact with the federal claim and would ordinarily be tried in the same judicial proceeding. See, United Mine Workers, supra, 383 U. S. at p. 725, 83 S.Ct. 1130. Finally, there is federal jurisdiction over this claim and all other claims between these parties pursuant to Title 28 U.S.C.A. § 1332 because there exists diversity of citizenship between the parties and each claim is in excess of the statutory amount. Defendant next contends that the claim for unfair competition should not be added to this suit because plaintiff has failed to allege “passing off” and thus his claim of unfair competition does not state a cause of action upon which relief can be granted. The law generally is that this element is a necessary one in proving unfair competition. See, Kawneer Co. v. McHugh et al., 51 F.2d 560 (M.D.Pa., 1931); General Time Instr. Corp. v. United States Time Corp., 165 F.2d 853 (C.A.2, 1948); and Metropolis Bending Co. v. Brandwen, 8 F.R.D. 296 (M.D.Pa., 1948). The plaintiff, however, has generally, throughout ¶ 20 to 31 of his proposed complaint, recited facts which implicitly support an allegation of passing off. Moreover, the rule applied in this Circuit permits an amendment, regardless of its legal insufficiency, as long as it is not frivolous. See, Harvey v. Eimco, supra, 32 F.R.D. at 599, and Gunnip v. Warner, 43 F.R.D. 365, 367 (E.D.Pa., 1968). That part of plaintiff’s pleading which relates to the claim of unfair competition is consistent with the liberal and functional pleading rules established by Rule 8 of the Federal Rules of Civil Procedure. If the defendant, however, believes that the pleadings are so vague that he can not reasonably file a responsive pleading he may move for a more definite statement, pursuant to Rule 12 (e), or the plaintiff, of his own choice, may elucidate these claims. (Either action would also resolve defendant’s contention that plaintiff has failed to comply with Rule 10(b)’s mandate that each claim founded upon a separate transac tion shall be stated in a separate count.) The defendant’s contention regarding legal sufficiency could be raised by a motion to dismiss under Rule 12(b) (6), at which time the parties can deal with these considerations more thoroughly. For all of the reasons discussed above that portion of plaintiff’s motion to amend which relates to a claim of unfair competition will be granted. This conclusion is sensible in view of the likelihood that plaintiff would institute an independent action charging defendant with unfair competition based upon diversity of citizenship, see, supra, p. 595, if his motion to amend were denied. It is preferable here, as it is in regards to the additional claims of patent infringement, see supra, pp. 594-595, to have all the contentions between the parties adjudicated at one time. Claims of Libel Finally, plaintiff seeks to add two separate causes of action charging the defendant with libel, libel per se, and trade disparagement. See ¶ 23-29 of the proposed complaint. These actions relate specifically to defendant’s publication of two bulletins in 1965. Defendant again has opposed this part of the motion to amend on a number of grounds, particularly on the basis that these actions will complicate and lengthen the main suit.

6046621-13266

SHEPHERD, Circuit Judge. Following the district court’s denial of their motions to suppress evidence, Jaime Esquivel (Jaime) and Ricardo Esquivel, Jr. (Ricardo) pled guilty to possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1), reserving their right to appeal the suppression ruling. From the denial of their motions to suppress, Jaime and Ricardo appeal. Their appeals are consolidated. We affirm. I. On January 20, 2006, Nebraska State Trooper Jeff Roby stopped a vehicle driven by Jaime because the vehicle had no license plates and the trooper could not observe a temporary registration permit or in-transit sticker on the vehicle. At the time of the stop, Ruben Nunez and Ricardo were passengers in the vehicle. When the trooper approached the vehicle, he asked to see Jaime’s driver’s license and the vehicle registration. While Jaime was retrieving the requested documentation, Trooper Roby noticed a document or “sticker” affixed to the bottom right side of the inside of the windshield, which was later identified as a valid Nevada temporary vehicle registration permit with an expiration date of January 29, 2006. Trooper Roby testified that immediately ' after his initial look at the document, he believed the document affixed to the passenger side windshield was issued from the Nevada Department of Motor Vehicles. Jaime then gave Trooper Roby his California driver’s license and the rental documentation for the vehicle. The rental documentation revealed that the vehicle was rented in Las Vegas, Nevada, by Nunez. Jaime was listed as an authorized additional driver on the rental agreement. Trooper Roby explained that he had stopped the vehicle because the vehicle had no license plates. He stated that he would have to take a look at the “sticker” to see if it was expired “or what the story is with that.” After examining the rental documentation for the date, make, model, VIN number and other identifying information, Trooper Roby directed Jaime to the front passenger seat of his patrol car to issue a written warning and to further inspect the rental documentation. While he reviewed the paperwork, ran Jaime’s driver’s license and performed a criminal history check, Trooper Roby conversed with Jaime about his travel activities and plans. Jaime told Trooper Roby that he and his two nephews, Ricardo and Nunez, were on their way to a family wedding in Chicago. He said they traveled from El Centro, California, to Las Vegas, Nevada, in Nunez’s truck. Jaime stated that the three gambled at the Queen’s Casino, spent the night in Las Vegas, and rented the vehicle in Las Vegas. Dispatch then advised Trooper Roby that Jaime’s driver’s license was valid and he had no active warrants. However, dispatch also advised Trooper Roby that Jaime had a history of an immigration violation charge, several marijuana smuggling charges, an assault charge and a drunk driving conviction. Trooper Roby advised Jaime that the permit on the windshield looked “okay.” Roby further explained that, although it was not Jaime’s fault, the vehicle needed license plates. Trooper Roby then left Jaime in the patrol car and spoke with the passengers, Ricardo and Nunez, obtained their driver’s license and identification cards, and discussed the details of their trip with them. The passengers provided Trooper Roby with a different account of the trip than did Jaime. For example, the passengers said that they gambled only briefly while in Las Vegas, did not spend the night in Las Vegas, and named a different casino as the location of their gambling activities. Trooper Roby then returned to his vehicle and conducted a driver’s license and warrant check on the two passengers. While waiting for dispatch to provide the requested information on the passengers, Trooper Roby began filling out a written warning and asked Jaime detailed questions about his travel plans, the exact date of the wedding, and his criminal history. Jaime told the officer about his past driving under the influence and marijuana smuggling charges. While the passengers said that the wedding was on Friday, Jaime told the trooper that the wedding was on Saturday. When he was advised that the passengers had no outstanding warrants, Trooper Roby completed the written warning, asked Jaime to sign for the document and handed the warning ticket to Jaime, telling him that they “were done with the traffic stop” and to have a safe trip. Trooper Roby then asked Jaime if he would agree to answer further questions, to which Jaime agreed. At that point, the trooper asked Jaime if there was marijuana, methamphetamine, or cocaine in the car. Jaime denied that such substances were in the vehicle. The trooper then asked for and received verbal consent to search the vehicle from Jaime, Ricardo, and Nunez. Other officers then arrived to assist Trooper Roby. One of the other officers, Sergeant Duis, arrived with his K-9 partner and performed a walk-around search on the exterior of the vehicle. The K-9 alerted at the rear of the vehicle. The officers then began a physical search of the vehicle and found heroin in the shape of shoe insoles inside the car. When the defendants were placed under arrest, heroin was also located inside the shoes they were wearing. After being Mirandized, Jaime and Ricardo stated that they were transporting five pairs of shoe insoles containing heroin. Jaime, Ricardo and Nunez each wore a pair of the insoles and the remaining two pairs of insoles, which also contained heroin, were hidden in the rear of the car. Jaime, Ricardo, and Nunez were indicted for possession with intent to distribute heroin. 21 U.S.C. § 841(a)(1). The defendants jointly moved to suppress the evidence seized from the vehicle in which they were traveling. Following a suppression hearing, the magistrate judge recommended that the motion be denied, concluding that: the traffic stop was valid; that the officers had reasonable suspicion to warrant extending the stop; that Jaime and Ricardo voluntarily consented to the search; and, such voluntary consent purged the taint of any illegal detention. This recommendation was adopted by the district court. The defendants conditionally entered pleas of guilty subject to this appeal of the denial of the suppression motion. II. Jaime and Ricardo concede the validity of the initial traffic stop of the vehicle for no license plates and no visible temporary registration permit. See United States v. Bueno, 443 F.3d 1017, 1024-25 (8th Cir.2006) (neither mistake of law or fact render traffic stop illegal as long as actions of officer were objectively reasonable under the circumstances; because lack of license plate or temporary registration would have constituted violation of state law, officers had reasonable suspicion to stop the vehicle); United States v. Ehrmann, 421 F.3d 774, 780 (8th Cir.2005), cert. denied, 546 U.S. 1122, 126 S.Ct. 1099, 163 L.Ed.2d 912 (2006) (traffic violations, however minor, create probable cause to stop vehicle). However, the appellants argue that: (1) the investigation which followed the traffic stop was excessive in length and scope, and (2) the appellants’ consent to a search of the vehicle did not “purge the taint of the illegal detention.” In an appeal of a denial of a motion to suppress evidence, the district court’s factual determinations are reviewed for clear error, and we review de novo its legal conclusions as to whether the Fourth Amendment has been violated. United States v. Bell, 480 F.3d 860, 863 (8th Cir.2007). “Guided by this standard, we must affirm the district court’s decision on a suppression motion unless it is not supported by substantial evidence on the record; it reflects an erroneous view of the applicable law; or upon review of the entire record, [we are] left with the definite and firm conviction that a mistake has been made.” Id. (alteration in original) (quoting United States v. Janis, 387 F.3d 682, 686 (8th Cir.2004)). Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support a conclusion. See United States v. Cruz, 285 F.3d 692, 697 (8th Cir.2002). Appellants concede that the detention was legitimate until Trooper Roby received the radio message that Jaime’s driver’s license check was clear. At that point, they argue, Trooper Roby’s detention of Jaime and Ricardo became illegal. After carefully reviewing the video and audio recording of the traffic stop and the transcript of the suppression hearing, we find it unnecessary to address the appellants’ contention that the traffic stop was excessive in length and scope, because even assuming a Fourth Amendment violation, the appellants’ consents to search the vehicle validated the subsequent search. See United States v. Grajeda, 497 F.3d 879, 882 (8th Cir.2007) (unnecessary to address whether the act amounted to an illegal search because, even assuming a Fourth Amendment violation, subsequent search was validated by intervening voluntary consent); United States v. Kreisel, 210 F.3d 868, 869 (8th Cir.2000) (consent was sufficiently an act of free will to purge taint of detention). “An illegal detention is only the start, and not the end, of our fourth amendment analysis, for the evidence seized from [appellants and their vehicle] need not be suppressed if [their] voluntary consent provided an independent basis for the search.... ” United States v. Smith, 260 F.3d 922, 924 (8th Cir.2001). After returning the paperwork and advising Jaime that the traffic stop was complete, Trooper Roby asked Jaime if he would agree to answer additional questions. Jaime agreed. There is no indication in the record that this post-stop encounter was anything other than consensual. See United States v. Salazar, 454 F.3d 843, 847 (8th Cir.2006) (no indication that the post-stop encounter was a seizure rather than consensual); United States v. Santos-Garcia, 313 F.3d 1073, 1078 (8th Cir.2002) (during post-stop consensual encounter, officer may, without reasonable suspicion, ask further questions unrelated to the traffic stop). Further, we find that the district court did not clearly err in finding that Jaime, Ricardo and Nunez voluntarily consented to the search of the vehicle during the post-stop consensual encounter. A defendant’s voluntary consent to be searched is an exception to the Fourth Amendment’s warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A court determines whether consent is voluntary under the totality of the circumstances. United States v. Gipp, 147 F.3d 680, 685 (8th Cir.1998). The Government bears the burden of proving voluntary consent by a preponderance of the evidence and must show that the defendant behaved in such a manner that the officer reasonably believed that the search was consensual. United States v. Cedano-Medina, 366 F.3d 682, 684-85 (8th Cir.2004). In evaluating the reasonableness of the officer’s belief, we consider the characteristics of the person consenting, “including the party’s age, intelligence and education, whether he was under the influence of drugs or alcohol, whether he was informed of his right to withhold consent, and whether he was aware of rights afforded criminal suspects.” United States v. Almendares, 397 F.3d 653, 660 (8th Cir.2005). We also consider the environment in which the alleged consent took place, “specifically (1) the length of time he was detained; (2) whether the police threatened, physically intimidated, or punished him; (3) whether the police made promises or misrepresentations; (4) whether he was in custody or under arrest when the consent was given; (5) whether the consent occurred in a public or a secluded place; and (6) whether he stood by silently ... as the search occurred.” United States v. Smith, 260 F.3d 922, 924 (8th Cir.2001). United States v. Esquivias, 416 F.3d 696, 700 (8th Cir.2005). As noted above, the duration of the stop which preceded the consensual post-stop encounter and consent to search was brief and the majority of the trooper’s investigation was lawful. The appellants spoke and understood the English language. At the time of his arrest, Jaime was 44 years old and had a ninth grade education. Although Jaime was born in Mexico, he had become a United States citizen. Ricardo was born in Los Angeles, California, was 30 years of age and had a high school education. Further, there is no evidence that Trooper Roby used coercion to obtain consent to search or to compel the appellants to answer questions. Id. at 700-701 (the totality of the circumstances establish that the officers reasonably believed consent to search was voluntary where 19-year-old Hispanic suspect understood English, was not under influence of drugs or alcohol, was only detained short time, was not threatened or intimidated by police, and was described by officers as very cooperative). Accordingly, the district court did not clearly err in finding the government proved by a preponderance of the evidence that appellants consented freely and without coercion. See United, States v. Becker, 333 F.3d 858, 861 (8th Cir.2003) (the government has the burden of proving that the consent to search was freely given and without coercion).

5725622-17271

DAUGHERTY, Chief Judge. This is an appeal by the Bankrupt from a judgment of the Bankruptcy Court concluding that a certain debt against Bankrupt was nondischargeable in bankruptcy. This Court has jurisdiction herein pursuant to 11 U.S.C. § 67(c). The appeal to this Court has been made in conformity with Bankruptcy Rules 801-814. Bankrupt filed her voluntary bankruptcy petition on October 16, 1975. Plaintiffs John S. Odell and Suzanne R. Odell, filed therein a Complaint in and Objection and Specification of Creditor Objection to Discharge of Petitioner in Bankruptcy. Plaintiffs’ contention was that a debt Bankrupts allegedly owed to Kunkel’s Inc. should be declared nondischargeable under 11 U.S.C. § 35. The Bankruptcy Court conducted an evidentiary hearing and declared the debt in question nondischargeable. The Bankruptcy Court found the facts to be that Bankrupts sold real estate to Plaintiffs; that on the same day the real estate was conveyed to Plaintiffs, Bankrupt Clifton Williamson, in the presence of Bankrupt Kahoe, signed a Loan Closing Statement certifying that there were no mortgages or encumbrances against the property being conveyed; that at the time of the signing, Bankrupts were aware that they owed an unpaid bill to Kunkel’s, Inc. which was a lienable claim against Plaintiffs’ property; that on September 16, 1975, Kunkel’s, Inc. filed an action for said debt against Bankrupt Williamson in the District Court for Cleveland County, State of Oklahoma; that on October 8, 1975, Kunkel’s, Inc. filed a lien foreclosure action against Bankrupt Williamson, Plaintiffs and others in the District Court for Cleveland County, State of Oklahoma; that on October 16,1975, both Bankrupt Williamson and Bankrupt Kahoe individually filed Voluntary Petitions in bankruptcy; that Plaintiffs subsequently filed their Complaint in and Objection and Specification of Creditor Objection to Discharge of Petitioners in Bankruptcy. At the close of the evidentiary hearing, the Bankruptcy Court concluded that the Bankrupts, in signing the Loan Closing Statement certifying that the property conveyed to Plaintiffs was unencumbered, made a materially false statement in writing. The Bankruptcy Court determined that this act brought Bankrupts within 11 U.S.C. § 35(a)(2) and that the debt Bankrupts owed to Kunkel’s, Inc. should be declared nondischargeable. This decision was stated in the Order and Judgment of the Bankruptcy Court filed June 18, 1976. Bankrupt Kahoe then perfected this appeal. Bankrupt Williamson is not a party thereto. Bankrupt Kahoe has filed herein a Brief in Chief and a Reply Brief. Plaintiffs have filed a Brief in Chief. In the lien foreclosure action brought by Kunkel’s, Inc. in the state district court against Bankrupt Williamson, Plaintiffs and others, both Kunkel’s, Inc. and the Plaintiffs herein filed a Motion for Summary Judgment. Summary Judgment was granted in favor of Kunkel’s, Inc., foreclosing a mechanic’s and materialman’s lien on the Plaintiffs’ property and ordering the property sold to satisfy the lien. The Plaintiffs herein appealed the summary judgment to the Oklahoma Supreme Court. Said appeal was thereafter assigned to the Oklahoma Court of Appeals. On September 14, 1976, the Oklahoma Court of Appeals reversed the state district court’s judgment and remanded the case to the state district court with directions to enter summary judgment for the Plaintiffs herein. The Court of Appeals based its decision on the fact that as Oklahoma law established that the fixtures that Kunkel’s, Inc. had furnished and installed on Plaintiffs’ property remained personal property, there was no statutory basis for the filing of a mechanic’s and materialman’s lien by Kunkel’s, Inc. against Plaintiffs’ real property. Bankruptcy Rule 806 requires an appellant to designate the issues she intends to raise on appeal. The Bankrupt’s designation of issues herein is as follows: “1. That no verbatim record waS made of this case as provided by law and defendant cannot properly perfect her appeal. “2. That Caroline Ruth Kahoe was not a true partner in Marvin Clifton Williamson’s construction business in that she worked for a straight salary and was not to receive any of the profits from the business nor share in any of the losses. The reason that she filed as a partnership is because Marvin Clifton Williamson had always told her that it was a partnership and she did not know the true legal ratifications involved in a partnership. The quasi partnership arrangement was solely to benefit Marvin Clifton Williamson in that Mrs. Kahoe would be able to take care of many of the business details on his behalf with third parties and would be able to write checks and make other business arrangements without involving him. “3. Caroline Ruth Kahoe did not sign the loan closing statement which is the basis of the Odell’s allegation of fraudulent misrepresentation. “4. The Odells signed the same loan closing statement and made the same representations to the Oklahoma Mortgage Company as did Marvin Clifton Williamson. This is true notwithstanding the fact that Mr. Odell was a senior in law school and had courses in Real Property and Contracts Estoppel. “5. John S. Odell’s initial testimony was to the effect that he signed the document before Marvin Clifton Williamson did. Later when he realized the consequence of his statement he changed it. However it is clear that he did not rely on Marvin Clifton Williamson’s signature on the closing statement to close out this loan closing. “6. Neither Marvin Clifton Williamson nor Caroline Ruth Kahoe made any oral representations at any time to the Odell’s that all the bills had been paid. “7. Williamson and Kahoe testified that they normally paid some of the bills after the closing and after they had received the final proceeds check. (Henry Poore testified under oath that Defendant always paid his account in arrears). In this particular case they received no money, absolutely no money, from the loan closing, in fact, they had to pay an additional $2,000.00 to close out the transaction. “8. Williamson and Kahoe in their testimony and by their answers to interrogatories showed exactly where every penny they received went, namely to pay numerous lienable claims. The evidence does not show that either Williamson or Kahoe' made one single cent from the Odell construction project. “9. Marvin Clifton Williamson never read the loan closing statement. “10. There is no evidence to contradict Marvin Clifton Williamson’s testimony that he intended to pay the Kunkel’s Plumbing bill. (This matter is currently pending on Appeal in the Oklahoma Supreme Court). “11. Most importantly, there is no evidence in the record to show intent to defraud on the part of either Williamson or Kahoe. “12. As a consequence of inflation the Odell’s received a house worth $44,000.00 at a sales price of $35,000.00. “13. The expenditures listed by Williamson and Kahoe do not even include the amounts for overhead such as office rent, truck payments, tractor payments, gasoline and the like. When these items are figured in with the other lienable claims that Williamson paid it is clear that he lost money on the project. “13. [sic] In a foreclosure action in Cleveland County District Court involving the Odell’s property the Odell’s challenged the sufficiency of the Kunkel’s lien. Odell contended that Kunkel’s lien was invalid and Judge . Brown, the Trial Judge, gave Kunkel’s a Summary Judgment in favor of Kunkel’s and against the Odell’s. Clifton Williamson and Caroline Ruth Kahoe were parties to this action although they filed a disclaimer of any interest in the real property. If the Odell’s are successful in their Appeal, and obviously they think they are going to be successful or they wouldn’t have bothered to file an Appeal, then they will not be obligated on the Kunkel’s lien if a judgment is rendered against Marvin Clifton Williamson they will have received a windfall.” On the appeal in the instant case, Bankrupt Kahoe makes two contentions. First, that the judgment of the Oklahoma Court of Appeals establishes that the debt Bankrupt allegedly owes Plaintiffs is nonexistent. Second, that the lack of a court reporter in the adversary bankruptcy proceedings mandates that this case be remanded to the Bankruptcy Court for a new trial with a reporter present to record verbatim the proceedings. With regard to Bankrupt’s first contention, this Court will not consider on this appeal the September 14, 1976 decision by the Oklahoma Court of Appeals. Said decision was rendered subsequent to the Order and Judgment of the Bankruptcy Court, and the issue as to the effect of said decision was neither raised before nor considered by the Bankruptcy Court when it declared the debt in question nondischargeable. The effect of the decision by the Oklahoma Court of Appeals has been argued for the first time on this appeal. The issue merits no consideration here. The scope of review on appeal from findings of the Bankruptcy Court is limited to the record and to that which is properly presented below. See E.F. Corp. v. Smith, 496 F.2d 826 (Tenth Cir. 1974). In her second contention, Bankrupt contends that this case should be remanded to the Bankruptcy Court for a new trial with a court reporter present to record verbatim the proceedings. Bankrupt alleges that the Bankrupts requested the presence of a reporter in the adversary bankruptcy proceedings but were told by the Bankruptcy Court that they were not entitled to a reporter unless they paid the reporter’s appearance fees. Bankrupt contends that as the Bankrupts could not afford to pay the reporter’s appearance fees, a verbatim record of the adversary bankruptcy proceedings was not made. Stating that a proper record, had one been made, would show that there were no elements of fraud on Bankrupts’ part, Bankrupt seeks on appeal to have the case remanded to the Bankruptcy Court for a new trial with a court reporter present. The recording and reporting of bankruptcy proceedings is provided for by Bankruptcy Rule 511, which provides in part: “(a) Record of Proceedings. Whenever practicable, the court shall require a record to be made of all proceedings in bankruptcy cases. . . . The expense of making the record shall be a charge against the estate unless the court assesses the cost or a part thereof against a person who asserts a vexatious or frivolous claim or defense.” The Advisory Committee’s Note to Rule 511 indicates: “Subdivision (a) of this rule declares and implements as a requisite of sound bankruptcy administration that all proceedings in bankruptcy cases shall be recorded verbatim. . . . The court should not allow an examination, hearing, or other proceeding in a bankruptcy case to continue without recording unless neither a stenographer nor an operable recording device is available and neither can be obtained without undue delay.” The recording and reporting of bankruptcy proceedings is also dealt with in Rule 8 of the Bankruptcy Rules of the United States District Court for the Western District of Oklahoma. Local Bankruptcy Rule 8 establishes in part: “Reporting and Reporter’s Fees “When the court shall so order, . proceedings in this court shall be taken stenographically by a reporter . designated by the court. Upon order of the court . . . the bankrupt or debtor . . . shall pay a fee to the reporter . ****** “In all contested matters the court may order the proceedings to be taken steno-graphically by a reporter . . . and the fees for such service may be taxed as costs . . . . In any case in which a person in interest requests the attendance of a reporter such person shall pay the appearance fee of said reporter which may later, in the discretion of the court, be taxed as costs in the proceeding.” In the instant ease, the Bankrupts allegedly requested that a court reporter be present to record the adversary bankruptcy proceedings. The Bankruptcy Court informed Bankrupts that they were entitled to have a reporter present only if they would pay the reporter’s appearance fees. As local Bankruptcy Rule 8 indicates that an interested person who requested a reporter’s presence shall pay the reporter’s appearance fee, the Bankruptcy Court’s actions were in compliance with the local Bankruptcy Rules. Bankrupt’s contention on appeal is not that the Bankruptcy Court failed to comply with the local Bankruptcy Rules but rather that the local Bankruptcy Rule 8 under which the Bankruptcy Court acted is inconsistent with 28 U.S.C. § 753(b) and therefore inapplicable. Bankrupt argues that 28 U.S.C. § 753(b) requires that a court reporter record verbatim all bankruptcy proceedings. Bankrupt’s reliance upon 28 U.S.C. § 753(b) as requiring that all bankruptcy proceedings be recorded verbatim is misplaced. Said statute is located within 28 U.S.C. §§ 751-756, which deal with the officers and employees of United States district courts. 28 U.S.C. § 753 provides for, and governs the use of, court reporters in the district courts. The statute provides, inter alia, that each district court shall appoint one or more court reporters; that the reporters are to receive a specified salary; and that a reporter shall attend at each session of the court, to include (1) all proceedings in criminal cases had in open court (2) all proceedings in other cases had in open court unless the parties with the approval of the judge shall agree specifically to the contrary; and (3) such other proceedings as a judge of the court may direct or as may be required by rule or order of court or as may be requested by any party to the proceeding. A Bankruptcy Court is not a district court nor does it come within the courts to which 28 U.S.C. § 753 applies. See 28 U.S.C. § 451; 28 U.S.C. §§ 81-144. The officers and employees of the Bankruptcy Courts are provided for in 11 U.S.C. §§ 61-81. There is no provision for the appointment of a salaried court reporter for a Bankruptcy Court. As the mandatory requirement of 28 U.S.C. § 753 that a court reporter record verbatim all district court proceedings is not applicable to bankruptcy proceedings, the recording and reporting of adversary bankruptcy proceedings is governed by the more permissive provisions of Bankruptcy Rule 511 and local Bankruptcy Rule 8. In the bankruptcy proceedings from which this appeal was taken, the Bankruptcy Court acted in compliance with the local Bankruptcy Rules in informing Bankrupts that they would be obligated to pay the appearance fee for a reporter. It was the Bankrupts’ decision to not pay this appearance fee that resulted in the lack of a verbatim record of the adversary bankruptcy proceedings. The lack of a verbatim record of the adversary bankruptcy proceedings should not have precluded Bankrupts from effectively prosecuting their appeal to this Court. Local Bankruptcy Rule 9 provides that a petitioner for review of a Bankruptcy Court’s order or judgment may file in this Court either a transcript of the evidence involved or a summary thereof as agreed upon by the parties. The local Rule •also provides that upon a failure by petitioner to supply a transcript or summary, the Bankruptcy Court is to prepare and file a certificate on review. In this instance the Bankrupt failed to file either a transcript or a summary of the evidence. The Bankruptcy Court filed its Statement of Record, Findings of Fact and Conclusions of Law. This is an adequate summary of the evidence for purposes of this appeal. With regard to Bankrupt’s statement that there was no evidence in the adversary bankruptcy proceedings of any false representations or fraudulent intent on the part of either Bankrupt, the findings of a Bankruptcy Court will not be disturbed unless there are “cogent reasons appearing on the record to reject” those findings. Wolfe v. Tri-State Insurance Company, 407 F.2d 16 (Tenth Cir. 1969); Kansas Federal Credit Union v. Niemeier, 227 F.2d 287 (Tenth Cir. 1955). The record discloses no “cogent reasons” for disturbing the findings of the Bankruptcy Cdurt. For the foregoing reasons, the Order and Judgment of the Bankruptcy Court is affirmed. . The Bankruptcy Court consolidated the cases of Marvin Clifton Williamson, who filed his Voluntary Petition in Bankruptcy captioned “Marvin Clifton Williamson, a partner of Caroline Ruth Kahoe formerly known as Caroline Ruth Williamson and doing business as a contractor under the name of Clifton Williamson”, case number BK-75-2007, with the case of Caroline Ruth Kahoe, who filed her Voluntary Petition captioned “Caroline Ruth Kahoe, formerly known as Caroline Ruth Williamson and doing business as a contractor under the name of Clifton Williamson, case number BK-75-2008. . Bankrupt Kahoe states in her Reply Brief that her Statement of Issues is incorporated by reference into her Brief in Chief. This incorporation, standing alone, is insufficient to warrant that this Court consider on appeal those issues unsupported by argument or authority in Bankrupt’s briefs. Only those issues Bankrupt supports by argument or authority will be considered by the Court on appeal. See Platis v. United States, 409 F.2d 1009 (Tenth Cir. 1969); Whitehead v. Salyer, 346 F.2d 207 (Tenth Cir. 1965).

5743417-4927

ORDER DAUGHERTY, Chief Judge. This is a civil rights action in which Plaintiffs seek damages for Defendants’ alleged violations of 42 U.S.C. §§ 1981 and 1983 arising out of the death of Plaintiffs’ minor son while he was incarcerated in the County Jail of Blaine County, Oklahoma. It is asserted that the Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1343. Defendants have filed herein a Motion to Dismiss this case and a Brief in support thereof. Plaintiffs have filed a Response and supporting Brief in opposition to said motion. Pursuant to the Court’s request, Plaintiffs and Defendants have also submitted Briefs concerning Plaintiffs’ standing to sue for alleged violations of their deceased son’s civil rights. In support of their Motion, Defendants contend that Plaintiffs have not alleged that any of their constitutional rights or privileges or those of their son were violated or that said rights and privileges were violated through the action or conduct of the Defendants. In their Response and Brief in opposition to Defendants’ Motion, Plaintiffs contend that they have properly alleged a violation of their constitutional and civil rights in their Complaint wherein Plaintiffs stated that upon the death of their son, they were “denied a due and proper Autopsy report and examination before the body of said deceased was embalmed” by the office of Defendant Earl Goerke (Goerke), the District Attorney of Blaine County; that Paragraph XV of the Complaint clearly sets forth a violation of Plaintiffs’ constitutional or civil rights by Defendant Goerke; that Plaintiffs have alleged negligence on the part of Defendants Hugh Compton (Compton), the Sheriff of Blaine County; Jim Sinclair (Sinclair), the Undersheriff of Blaine County; and Richard Craighead (Craighead), the Jailer of Blaine County, in that said Defendants failed to insure the safety, well being and welfare of Plaintiffs’ son in violation of the rights and privileges guaranteed him “by the constitution of the United States and the Civil Rights Act of the United States;” and that Plaintiffs have properly alleged a violation of their son’s civil rights by the failure of the Defendant Jim Cook (Cook), Commissioner of Charities and Corrections of the State of Oklahoma, to properly inspect the jails of the State of Oklahoma, including the Blaine County Jail, as required by law. With regard to 42 U.S.C. § 1981, Plaintiffs have not stated a cause of action. § 1981 is limited to racial discrimination. Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); Williams v. Patton, 410 F.Supp. 1 (E.D.Pa.1976); Baca v. Butz, 394 F.Supp. 888 (D.N.M.1975); Thomas v. Firestone Tire and Rubber Co., 392 F.Supp. 373 (N.D.Tex.1975). As the Complaint herein contains no allegations of racial discrimination by Defendants against either Plaintiffs or their son, the Complaint fails to state a claim under § 1981. Williams v. Patton, supra; Quarles v. Texas, 312 F.Supp. 835 (S.D.Tex.1970); see Ambrek v. Clark, 287 F.Supp. 208 (E.D.Pa. 1968). There are two essential elements to stating a claim under § 1983: (1) the conduct complained of was by a person acting under color of state law; and (2) the conduct complained of deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Adickes v. S. H. Kress and Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Palacios v. Foltz, 441 F.2d 1196 (Tenth Cir. 1971); Harbert v. Rapp, 415 F.Supp. 83 (W.D.Okl.1976). In the instant case, Plaintiffs claim that the denial of any autopsy report and examination of their son amounted to a violation of their constitutional and civil rights. Plaintiffs’ Complaint contains no allegations that this asserted right was violated by any of the Defendants other than Defendant Goerke. Absent an allegation that a named defendant has personally subjected the plaintiff to a deprivation of his constitutional rights or has caused the conduct complained of, a Complaint is insufficient to state a claim against such defendant under § 1983. Knipp v. Weikle, 405 F.Supp. 782 (N.D.Ohio 1975); see Harbert v. Rapp, supra. Furthermore, the Court is of the opinion that Plaintiffs’ claimed right to an autopsy report and examination is not a right, privilege or immunity secured by the Constitution or laws of the United States. Therefore, the Court finds and con- eludes that the Complaint fails to state a claim against Defendants for violations of Plaintiffs’ civil rights. Turning to the allegations in the Complaint relating to violations of the civil rights of Plaintiffs’ son, it should be noted that there are no allegations that Defendant Goerke violated the civil rights of Plaintiffs’ son. Therefore, the Complaint fails to state a claim against Defendant Goerke for violation of the civil rights of Plaintiffs’ son in view of the authorities set out above.

10530415-9930

NATHANIEL R. JONES, Circuit Judge. Defendant-appellant, Freeman Monger, appeals the district court’s judgment and order of commitment. He contends that since the Government failed to bring him to trial within the seventy day period provided for by the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1982 & Supp. Ill 1985) (“Act”), the district court was required to dismiss the indictment. For the reasons that follow, we affirm the judgment of the district court. I. In February 1986, Special Agents of the Drug Enforcement Administration (“DEA”) investigated claims that Monger used his business, Memphis International Realtors, to distribute cocaine. As a part of this investigation, a DEA agent arranged to purchase cocaine from Monger and the Government obtained court approval to intercept Monger’s telephone conversations. In the course of the three month investigation, DEA agents wrote a summary of the conversations, and identified the parties involved in each conversation. During the investigation, the DEA intercepted over three thousand calls which allegedly evidenced illegal acts. On July 10, 1986, Monger was arrested and charged with participation in a conspiracy to possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 846 and with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The following day, Monger made his initial appearance before the magistrate and on July 15, 1986, a preliminary hearing was held. Probable cause was established and Monger was ordered to be held in custody. On August 1, 1986, the Government filed a motion for a sixty day continuance of the normal thirty day limit for obtaining an indictment, once the defendant has been arrested. See 18 U.S.C. § 3161(b). The Government requested the continuance in order to complete transcription of all tapes before seeking an indictment. When the Government filed this motion, the magistrate was on vacation. The record does not indicate whether the Government attempted to present the motion to another magistrate or to a district court judge. On August 29, 1986, the magistrate held a hearing on the Government’s motion, and Monger’s motion to dismiss and for sanctions. On September 3, 1986, the magistrate granted the Government’s motion, noting that the “ends of justice” required a forty-five day continuance because of the complexity of the case; the large quantity of wire tap evidence under review; the possibility of a large number of co-conspirators; and the possibility of a continuing criminal enterprise charge. The magistrate specifically found that the Government's motion for a continuance tolled the thirty day period for bringing an indictment pursuant to 18 U.S.C. § 3161(b). On September 22, 1986, a federal grand jury indicted Monger and eleven co-defendants on twenty-two counts including charges of a conspiracy to distribute cocaine and marijuana, and of possession of cocaine with the intent to distribute it. On February 20, 1987, the district court held a hearing on Monger’s motion to dismiss, and subsequently upheld the magistrate’s order and denied Monger’s motion. The district court reasoned that the Speedy Trial Act did not require that a motion for a continuance be granted within the thirty day period. Furthermore, the district court agreed with the magistrate’s conclusion that the ends of justice outweighed the interests of the public and the defendant in a speedy trial. The district court also held that given the inherent complexity of the case, the number of persons implicated in the conspiracy, the tasks involved in transcribing the tapes, and the process of determining whether to seek a continuing criminal enterprise indictment, it was never reasonable to expect the Government to return the indictment within the thirty day period prescribed in section 3161(b). II. .The Speedy Trial Act requires that a defendant be brought to trial within seventy days following (1) his indictment or (2) first appearance before the court, whichever occurs later. If this deadline is not met, the district court must dismiss the indictment, either with or without prejudice. 18 U.S.C. § 3162(a)(2). The Act further requires that an indictment be filed within thirty days from the date upon which the defendant was arrested or served with a summons in connection with the charges in the indictment. Id. at § 3161(b). If the Government fails to file an indictment within the required time limit, the charges must be dropped. Id. at § 3162(a)(1). However, certain periods of delay are excluded from calculation of the seventy and thirty day time periods. Id. at § 3161(h). There are two exclusions in the Act relating to pretrial motions. Section 3161(h)(1)(F) specifically excludes periods of “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Likewise section 3161(h)(l)(J) excludes up to thirty days during which “any proceeding concerning the defendant is actually under advisement by the court.” In United States v. Pelfrey, 822 F.2d 628 (6th Cir.1987), we noted that section 3161(h)(l)(J) creates a presumption of 30 excludable days for either considering a motion after a hearing has been held, or for considering a motion which does not require a hearing. This presumption is rebutted if, within the 30-day period, the motion is granted or denied, or if the record shows objectively that the motion is not under advisement. This would ordinarily be the case, for example, if the court expressly declined to consider the merits of a motion until after the occurence of a certain date or event. This would not be the case, however, if the anticipated event were the filing of post-hearing briefs.... Id. at 633-34 (emphasis in original). Section 3161(h)(8) of the Act specifically excludes from the statutory time limits any delay resulting from a continuance which is granted based on a judge’s finding that the “ends of justice” outweigh the interest of the public and the defendant in a speedy trial. The district court is required, however, to provide either oral or written reasons for granting an “ends of justice” continuance; if this condition is not satisfied, the time is not excludable. Id. at § 3161(h)(8)(A). See also United States v. Brooks, 697 F.2d 517, 520 (3rd Cir.1982), cert. denied, 460 U.S. 1071, 103 S.Ct. 1526, 75 L.Ed.2d 949 (1983). The Act requires the district court to consider several factors when determining whether to grant a continuance under section 3161(h)(8). For example, the court must determine whether the failure to grant the continuance in the proceeding would be likely to make a continuation of such proceeding impossible or result in a miscarriage of justice; whether the case is so complex, due to the number of defendants or the existence of novel questions, that it is unreasonable to expect adequate preparation for pre-trial proceedings within the time limits set forth in the Act; whether the failure to grant the continuance would deny the defendant time to obtain counsel, or would deny the Government or the defendant continuity of counsel, or would deny counsel reasonable time necessary for effective preparation. Id. at § 3161(h)(8)(B)(i)-(iv). District courts should not, however, grant a continuance because of general congestion of the court’s calendar, or the Government’s lack of diligent preparation or failure to obtain available witnesses. Id. at § 3161(h)(8)(C). III. Monger claims that the magistrate improperly granted an “ends of justice” continuance under sections 3161(h)(8)(A) and (B). Monger contends that the magistrate’s order failed to weigh his interests in a speedy trial and that the district court did not consider the impact that the continuance would have on him. In particular, Monger claims that the district court erroneously ignored testimony that he was ill, that he had lost many friends and business relationships, that his business relationship had been destroyed, and that he was emotionally “shook up” the entire time he was in jail. Monger asserts that these factors were not considered or weighed by the magistrate, either orally or in writing, in its decision to grant the “ends of justice” continuance. Monger also argues that the magistrate erred in granting the “ends of justice” continuance because the only factual basis for granting the motion was the complex nature of the case. Since the other factual bases, the possibility of numerous co-conspirators and a charge of continuing criminal enterprise, were not specific underlying factual circumstances, Monger claims they could not support the granting of an “ends of justice” continuance. In reviewing the district court’s granting of an “ends of justice” continuance, we must first determine whether the district court set forth its reasons that the interests served by the continuance outweighed the defendant’s and society’s interests in a speedy trial. In the September 3, 1986 order, the magistrate listed four justifications for its finding that the “ends of justice” were served by the continuance: (1) that the facts of the case were complex, (2) that a large quantity of wiretap evidence had to be processed; (3) the possibility of a large number of co-conspirators; and (4) the possible addition of a charge of a continuing criminal enterprise. J. App. at 29. We note that the plain language of the statute indicates that the list of factors is not intended to be exhaustive. See § 3161(h)(8)(B) (“The factors, among others, which a judge shall consider_”). Since the magistrate in this case properly considered the factors set forth in section 3161(h)(8)(B), along with additional considerations, i.e., the possibility of numerous co-conspirators and the possibility of additional charges, we find that he did not rely upon an impermissible factor in granting the continuance.

671098-22787

RANDALL, Circuit Judge: This appeal is taken from a decision of the district court in favor of St. Joseph Hospital (“St. Joseph”), Defendant-Appellee, in an action brought under Title VII of the Civil Rights Act of 1964 and § 1981 of the Civil Rights Act of 1866 by Plaintiff-Appellant, Leyla De Anda (“De Anda”), a pharmacist formerly employed by St. Joseph. De Anda sued, claiming that because she had complained to hospital administrators of alleged racial discrimination in hiring practices of the director of pharmacy, Scotty Slater (“Slater”), she had subsequently been harassed by unwarranted counseling reports and ultimately discharged in retaliation for her protests initially to St. Joseph and ultimately to EEOC. She also sought declaratory and injunctive relief against alleged racially discriminatory practices of St. Joseph. The trial court, after hearing evidence, held that De Anda failed to establish a prima facie case of retaliation, that even if a prima facie case had been established, St. Joseph had articulated legitimate, non-discriminatory reasons for its counseling reports and termination that were not motivated by De Anda’s actions protesting alleged discrimination. The court further held that it lacked jurisdiction over De Anda’s § 1981 claims and that even if the court had jurisdiction under § 1981, De Anda had failed to establish a prima facie case of retaliation under § 1981. On appeal, De Anda asks us to reverse the trial court’s findings of no retaliation and lack of jurisdiction under § 1981. We hold that the case must be remanded to the trial court for further findings of fact and conclusions of law as to the Title VII claim. Further, we vacate the trial court’s judgment that it had no jurisdiction under § 1981 and remand that claim for supplemental briefing, findings of fact and conclusions of law. l. FACTUAL AND PROCEDURAL BACKGROUND Leyla De Anda, after receiving a degree in pharmacy, was employed as a technician in the pharmacy department at St. Joseph in February, 1970 filling prescriptions. In 1972, after passing the pharmacy registry, De Anda became a staff pharmacist in the intravenous (“IV”) room of the pharmacy. As a staff pharmacist, De Anda filled IV mixtures to be given to the patients in St. Joseph. In April, 1976 De Anda was promoted to supervisor of the 7 a. m. to 3:30 p. m. shift in the IV room of the pharmacy department. At the same time De Anda was appointed supervisor for the IV room on one shift, supervisors were appointed in the main dispensary and the IV room for other shifts. During the first seven-and-one-half years of her employment (until November, 1977), De Anda received good to outstanding evaluations and as late as May, 1977 was considered a potential assistant director of the pharmacy department. Until that date she had no written reports in her file detailing any problems in her positions as staff pharmacist and supervisor. In January, 1977 the hospital hired Slater as director of the pharmacy department. At the time of Slater’s hiring, the hospital was concerned about possible racial tensions in the pharmacy department, medication errors, financial problems and lack of accountability for drugs. In May, 1977 contemporaneous with De Anda’s evaluation indicating potential for promotion to assistant pharmacy director, Slater and Steve Eckerd, then assistant director of pharmacy, told De Anda that she had twenty-four hour responsibility for the IV room. This twenty-four hour responsibility was acknowledged by De Anda, though she maintained it had been pushed upon her without appropriate compensation or promotion. In September, 1977 the hospital hired John Glorioso (“Glorioso”) as an associate director of pharmacy. He was in charge of the operational aspects of the pharmacy department, including the IV room. Glorioso was the “number-two” person in the department and reported directly to Slater. De Anda, as a supervisor in the IV room, reported directly to Glorioso. In September, 1977 Slater gave De Anda authority to hire a staff pharmacist for the IV room during his absence from the hospital. De Anda apparently reviewed several applications and discussed the potential hiring with Slater. According to De Anda, Slater told her to pay different wages to a black potential pharmacist than would be paid to a white potential pharmacist. De Anda, sometime in late September, reported what she perceived as racial discrimination in hiring to the hospital administration. Subsequent to De Anda’s report of Slater’s alleged racial discrimination, she received verbal and written counseling pertaining to alleged errors in her job performance and in the performance of pharmacists on other shifts because of her 24-hour supervisory responsibility. The written reports followed closely after complaints were made by De Anda initially to the hospital concerning Slater’s racial discrimination in hiring and subsequently to the EEOC concerning his alleged harassment of De Anda in retaliation for her earlier complaints. Ultimately, De Anda was terminated by Slater for an incident detailed in the written report of November 18, 1977. Briefly, the uncontroverted report of the incident showed that a nurse showed a syringe containing a brown substance to De Anda on November 13, 1977. The syringe contained a brown substance which had been withdrawn into the syringe from an IV tubing solution being administered to a patient. The nurse asked De Anda for her advice in determining the foreign substance from the IV tube. De Anda determined that the substance was probably a blood clot and returned the syringe to the nurse, telling her to show the syringe to her supervisor. De Anda also prepared an identical IV to the one which had been given to the patient to replace the one containing the foreign substance. De Anda did not further investigate the matter until the next day, November 14, and never determined the source of the foreign substance. Slater received a report of the “foreign substance” incident on November 15. On November 18, he prepared a written report detailing the incident, describing possible problems of incompatibility of two solutions which were being administered together in the IV and which might be indicated by the foreign substance, noting De Anda’s failure to investigate this possible incompatibility, describing possible dangers to patients from her failure to investigate the cause of the foreign substance, and dismissing her “for failure to take reasonable action, based on your experience and professional knowledge to protect this and possibly more patients.” Def. Exb. 1, p. 3. The EEOC subsequently issued a “right to sue” letter and De Anda brought suit alleging racial discrimination and retaliation against her by St. Joseph in violation of of Title VII, 42 U.S.C. § 2000e-3(a) (1976), and § 1981, 42 U.S.C. § 1981 (1976). At trial, several witnesses testified that Slater treated blacks different than whites, that several black employees had left the hospital after his employment, and that the overall number of blacks in the pharmacy department had decreased. Additionally, there was testimony that one pharmacist had told another that De Anda would be and was fired because of her “embarrassing” complaints against Slater, and that at least one person, Willis Jackson, a former employee, noticed Slater treating De Anda differently before the complaints than he did after her complaints. The testimony presented by St. Joseph included a denial by Slater of De Anda’s charge of discrimination, an explanation by Slater and Glorioso of the various counseling reports and specifically an explanation of the reasons that they determined De Anda had acted in a manner which could have placed patients’ lives in jeopardy. De Anda did not introduce any experts to testify about her reaction to the “foreign substance” incident, nor did St. Joseph. De Anda introduced written evidence that the solutions being given in the troublesome IV were, in fact, compatible and St. Joseph introduced evidence that the solutions could be incompatible. After reviewing the sequence of events described above and the testimony relevant to them, the trial court found no actionable retaliation by St. Joseph against De Anda and no jurisdiction to decide the § 1981 claim. De Anda appeals, claiming that the trial court erred in its determination that no retaliation existed because it failed to complete the legal analysis required in a Title VII case, i.e., to consider whether St. Joseph’s articulated reasons for De Anda’s discharge were pretextual. De Anda also appeals the court’s determination that it did not have jurisdiction under § 1981. We address each argument in turn. II. THE TITLE VII CLAIM OF RETALIATION A. The Standard of Review We first note that our standard of review of the findings of fact of the trial court in this Title VII case is dependent upon whether the finding at issue is one of ultimate fact or subsidiary fact. Wilkins v. University of Houston, 654 F.2d 388 at 389-90 (5th Cir. 1981). In a Title VII case, the ultimate finding of fact, whether there was unlawful discrimination, is subject to independent review by this court. Wilkins, 654 F.2d 388 at 389-90; Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir. 1981); Rhode v. K. O. Steel Castings, Inc., 649 F.2d 317 (5th Cir. 1981); Danner v. United States Civil Service Commission, 635 F.2d 427 (5th Cir. 1981); Jefferies v. Harris County Community Action Association, 615 F.2d 1025, 1031, n. 5 (5th Cir. 1980). In doing so however, this court is bound by the trial court’s findings of subsidiary fact that are not clearly erroneous. Wilkins, 654 F.2d at 390. This twofold review thus mandates that “the reviewing court ... determine whether there are enough ‘subsidiary facts’ to undergird the ultimate fact.” Jefferies, 615 F.2d at 1031, n. 5 (citation omitted). If sufficient factual findings exist, the court must review the factual findings under the clearly erroneous standard in order to then be in a position to independently review the ultimate finding as to whether discrimination exists. If the factual findings are absent, the case must be remanded for such findings, Jefferies, 615 F.2d at 1031. Additionally, an independent review of the trial court’s decision must be undertaken if we determine that the findings were made “under an erroneous view of controlling legal principles.” Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374 (5th Cir. 1978), cert. denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979). In summary, assuming the trial court has applied correct controlling legal principles to its findings of fact, in a Title VII case, the reviewing court must (1) determine if there are sufficient findings of subsidiary facts upon which a review may be made; (2) review those findings of subsidiary facts under the Fed.R. of Civ.P. 52(a) “clearly erroneous” standard; and (3) independently determine whether those subsidiary facts which are not clearly erroneous support the finding of ultimate fact controlling the trial court’s decision. B. De Anda’s Title VII Claim Our review of De Anda’s claim of St. Joseph’s violation of Title VII, based on Slater’s alleged rataliation in the form of harassment and ultimate termination, is guided by the standards set forth by the United States Supreme Court in McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and clarified in Burdine v. Texas Department of Community Affairs, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Dickerson v. Metropolitan Dade County, 659 F.2d 574 (5th Cir. 1981); Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. 1981); Payne v. McLemore’s Wholesale and Retail Stores, 654 F.2d 1130 (5th Cir. 1981); Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325 (5th Cir. 1980). In demonstrating her contentions, De Anda had the initial burden of establishing a prima facie case of retaliatory conduct. The burden of production of evidence then shifted to St. Joseph to articulate some legitimate nondiscriminatory reason for the alleged retaliatory conduct. Finally, the burden again shifted to De Anda to demonstrate that the alleged nondiscriminatory basis for the action was merely a pretext for discrimination. Dickerson, 659 F.2d 574 at 580. In order to conduct this review, we must be presented with sufficient subsidiary facts to determine if they do, indeed, undergird the trial court’s final decision. Jefferies, 615 F.2d at 1031, n.5. Thus there must be sufficient findings of fact by the trial court in which the trial court reviewed the evidence introduced at trial in light of the unique requirements of a claim of retaliation. In such a case, the plaintiff must establish by a preponderance of the evidence (1) that he or she engaged in an activity protected by Title VII, (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation in protected activity and the adverse employment activity. Dickerson, 659 F.2d at 580-581. See generally, B. Schlei and P. Grossman, Employment. Discrimination Law 438-440 (1976). A review of the trial court’s findings of fact in the case before us show no findings of subsidiary fact with respect to De Anda’s allegations of protected activity and a causal link between that activity and the alleged adverse action. Because the court failed to even mention the plaintiff’s opposition to, and reporting to St. Joseph of, Slater’s alleged racial discrimination which she alleges is a substantial cause of her harassment and termination , we are unable to find that the court made sufficient findings of subsidiary fact to enable us to evaluate her claims according to the appropriate standards of review. Moreover, we find that the court, while stating that there was no retaliatory motive, did so without articulation of its considered judgment as to all the facts relevant to the determination. While the court did mention De Anda’s EEOC complaint, its failure to mention her protected opposition to, and reporting to St. Joseph of, Slater’s alleged racial discrimination and its failure to analyze her complaint under the standards of Dickerson, Smalley and Whatley renders a review by this court impossible. We do not intimate that the court reached an incorrect conclusion. Rather, we remand for additional findings of subsidiary facts so that we may determine if they support the conclusions of no discrimination. II. THE SECTION 1981 CLAIM De Anda also brought her action for declaratory and injunctive relief and damages under § 1981. The court in its conclusions of law, without fully articulating its reasoning or the basis for its decision, ruled that it did not have jurisdiction to hear De Anda’s § 1981 claim “because § 1981 is limited to claims of discrimination based upon race and race-related factors. Section 1981 does not encompass claims of retaliation for filing a charge with the Equal Employment Opportunity Commission or opposing alleged unlawful employment practices.” Our review of the record indicates that initial briefing by the parties to the trial court did not focus on the precise issues involved in consideration of De Anda’s § 1981 claim nor did the trial court’s conclusions of law articulate the factual and legal basis for its decision. We therefore instruct the trial court to order supplemental briefs to address the issues raised by De Anda’s § 1981 claim and to reconsider, in the light of the briefing, its conclusions of law. We do not intimate that the trial court need change its ultimate conclusion. We only request that its conclusion be reached after full consideration and articulation of the appropriate legal and factual questions. Each party shall bear its own costs. VACATED and REMANDED with instructions. . “Retaliation” is a term coined to describe actions taken against an employee by an employer because the employee has opposed allegedly discriminatory practices by the employer or participated in a proceeding, charge or hearing where such practices are challenged. It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment prac tice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a) (1976). These protected activities are described as “opposition” or “participation” activities. In the case before us, De Anda both opposed allegedly illegal practices and participated in the filing of a charge before the EEOC. Thus any differences in treatment as to these two types of claims are irrelevant to our decision. . De Anda need not prove that the discriminatory hiring practices alleged in her complaint in fact, existed. She need only prove that she had a “reasonable belief” that such practices existed in order to be protected by Title VII of the Civil Rights Act of 1964. Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir. 1981). There was conflicting testimony whether Slater told De Anda to pay less to a black pharmacist than a white. The trial court made no specific finding on this issue nor was the question of a reasonable belief by De Anda challenged by St. Joseph on appeal. While St. Joseph does maintain that Slater did not discriminate, it does not specifically challenge De Anda’s complaint as being based on an unreasonable belief. We therefore find, as a preliminary matter, that we need not in our decision address the question whether Slater practiced racially discriminatory hiring policies with respect to wages paid. That is not to say that, on remand, such a determination by the trial court will not be necessary in the context of its findings on De Anda’s § 1981 claim. See Part III, infra. . We note that although Slater maintained that transcription errors averaged seventeen per month when he arrived in January, he never counseled De Anda about. errors made by other shifts until after her report, though she allegedly had 24-hour responsibility. Additionally, other employees, including shift supervisors, were not informed that De Anda had any such responsibility. . It seems worthwhile to set forth the sequence of written and oral accusations, complaints, reports and memoranda between September 1977 and Ms. De Anda’s discharge in November, 1977. The record does not reflect precise dates in some cases. In others, while precise dates on which a report was written are given, the dates of receipt by De Anda or hospital officials are unclear. September 1977 — alleged incident of racial discrimination in hiring by Slater occurs; September 1977 — Glorioso hired as associate director of pharmacy; Late September or early October, 1977 — De Anda complained to John Single, Personnel Department about Slater’s alleged racial discrimination in hiring; October 11, 1977 — Memorandum from plaintiff “To Whom It May Concern” complaining of harassment, racism and sexism by Slater, delivered to Mr. John Single; October 13, 1977 — Memorandum by De Anda setting forth allegations of harassment and reprimands by Slater occurring during the past month (never delivered to any hospital or EEOC official); Late October, 1977 — Meeting among De Anda, Slater and other hospital officials regarding De Anda’s charges of harassment; November 1, 1977 — Memorandum from De Anda to Slater complaining of Slater’s alleged harassment, discrimination; November 1, 1977 — Memorandum to the file by Glorioso detailing verbal counseling to De Anda because of failure to adequately train and orient employees to proper hospital policy and procedure. November 6, 1977 — Letter from De Anda to Christopher Chamey, Associate Administrator-Operations, setting forth prior sequence of events leading to, and complaints regarding Slater’s harassment and stating that “I have gone outside the Hospital to file a complaint with the EEOC,” PI. Exb. 5, p. 2. November 7, 1977 — Written counseling report from Glorioso to De Anda detailing a medication transcription error made by employee on another shift and detailing a more widespread breakdown in correct medication dispensing policy. See n. 3, supra. November 10, 1977 — Written report by Slater detailing audit by Slater of medication records in the IV room which indicated continuance of the transcription problem noted in the November 1, 1977 report. November 14, 1977 — Written report from Glorioso relating to correction of prior transcription errors. November 14, 1977 — Written report by Slater detailing an admitted request by De Anda to a nurse at St. Joseph’s to refrain from reporting a medication error by another pharmacist. November 17, 1977 — Written report by Glorioso regarding further transcription errors on another shift. November 17, 1977 — Written report from Glorioso relating to De Anda’s failure to insure correct charging by the pharmacy department of IV’s issued to patients. November 18, 1977 — Written report and notice of termination by Slater resulting from De Anda’s handling of a report by a nurse of a brown substance in an IV which was being administered to a patient. . De Anda maintained, and St. Joseph did not deny, that a blood clot in an IV would be a problem resulting from how the IV was administered, to be handled by the nursing staff, rather than a pharmacy problem resulting from what was administered. . We do not feel it is within our realm of expertise, nor is it our duty, to determine if incompatibility existed. St. Joseph maintained that De Anda should have checked for incompatibility and that her failure to do so was the reason for her termination; not whether there was, in fact, an incompatibility. Whether St. Joseph was wrong in its determination that she should have checked is irrelevant, as long as its belief, though erroneous, was the basis for the termination. Jefferies v. Harris County Community Action Center, 615 F.2d 1025, 1032. . Such an error might occur if the trial court required that the burden of proof rather than of production of evidence shift to the defendant after the plaintiff had established a prima facie case of discrimination, contrary to the directions of Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

6117705-19109

MEMORANDUM AND ORDER ROBERT E. GINSBERG, Bankruptcy Judge. The adversary defendant, Ford Motor Credit Co. (“FMC”), has filed a motion requesting the Court to reconsider its Memorandum and Order of October 18, 1985, In re Johnson, 53 B.R. 919 (Bankr.N.D.Ill.1985). This dispute centers around the debtor’s attempt to recover $203.68 in wages held by his employer pursuant to a wage garnishment in favor of FMC by using 11 U.S.C. §§ 522(f)(1) and 522(g). In the earlier decision, this Court denied FMC’s motion for summary judgment on the grounds that FMC failed to prove that the debtor lacked an interest in the garnished wages as required by §§ 522(f)(1), (g), and (h). FMC now asks the Court to reconsider that conclusion. The motion for reconsideration focuses strictly on § 522(f)(1). FMC questions whether the Court properly interpreted Illinois law in concluding that the debtor might be able to recover the garnished wages under § 522(f)(1). Section 522(f)(1) permits a debtor to avoid a lien if four requirements are met: (1) the lien the debt- or seeks to avoid is a judicial lien; (2) the debtor claims an exemption in the property to which the debtor is entitled under § 522(b); (3) the creditor’s lien impairs the debtor’s exemption; and (4) the debtor has an interest in the property. 11 U.S.C. § 522(f)(1). See also In re Webb, 49 B.R. 646, 650 (Bankr.E.D.Va.1984). In its prior decision, the Court found that the debtor satisfied the first three elements and that genuine issues of fact regarding the fourth element, the debtor’s interest in the property, precluded summary judgment for either party. In its motion to reconsider, FMC does not challenge the Court’s findings as to the first, third, and fourth requirements of § 522(f)(1). FMC argues only that this Court erroneously held that the debtor satisfied the second requirement, the debtor’s right to assert an exemption in the property in question, and FMC’s summary judgment motion should thus have been granted. Simply stated, FMC contends that a debtor may not assert an exemption in garnished wages under Illinois law. In the earlier decision, the Court, after analyzing the relevant Illinois statutes and case law, held that the debtor could assert an exemption in garnished wages, at least until such wages had actually been turned over to the garnishing creditor. Specifically, the Court held that the debtor could claim the garnished wages in the hands of his employer as exempt by using the Illinois personal property “wild card” exemption, § 12-1001(b), under which a debtor can claim as exempt “[t]he debtor’s equity interest, not to exceed $2,000 in value, in any other property.” (Emphasis added). The Court interpreted the language “any other property” as allowing a debtor to claim garnished wages as exempt. In re Johnson, 53 B.R. at 923. The Court found support for this conclusion in In re Barker, 768 F.2d 191 (7th Cir.1985). In Barker, the Seventh Circuit held that the phrase “any other property” in § 12-1001(b) must be interpreted broadly to favor debtors. Id. at 196. Consequently, the Barker court allowed a debtor to stack his exemptions, i.e. to use the $2,000 wild card exemption to exempt the equity remaining in his car after he had used the $1,200 automobile exemption set out in § 12-1001(c). Id. FMC now contends that this Court misinterpreted the wild card exemption and Barker. A debtor, according to FMC, may only use § 12-1001(b) to exempt up to $2,000 of the debtor’s equity interest in any other property specifically allowed to be claimed as exempt under the Illinois exemption statute alone. In FMC’s view, because wages are not specifically exempt under § 12-1001, but rather can be claimed as exempt under § 12-803 of the Illinois Code of Civil Procedure, in the portion of that Code dealing with wage deductions rather than the portion dealing with exemptions, the debtor cannot use the wild card exemption for garnished wages. The argument continues that since § 12-803 exempts only 85% of a debtor's gross wages (in most cases), that percentage is the most the Illinois legislature intended a debtor to be able to shield from a garnishing creditor like FMC. FMC argues that to allow a debtor like Johnson to use the $2,000 wild card exemption to exempt the 15% of wages not exempt under § 12-803 effectively wipes out FMC’s ability to ever garnish any of a debtor’s wages. As support for its position, FMC refers to the fact that Barker permitted the debt- or to stack the wild card exemption on top of the automobile exemption provided for in § 12-1001(c). FMC argues that Barker should not be extended to allow a debtor to stack the wild card exemption on top of an exemption provided for in another statutory section, like § 12-803 of the wage deduction statute. The problem with accepting FMC’s argument is that it runs contrary to the plain meaning of the statute. The only reasonable interpretation of the phrase “any other property” is that it means just that, any other property, i.e., that a debtor may claim the wild card exemption in any other property without limitation. If the legislature had intended to limit the wild card exemption to operate only within § 12-1001, it could have stated so simply enough by providing that the debtor could exempt up to $2,000 in “any other such property.” The Illinois wild card exemption contains no such restriction, and this Court refuses to read one into the statute, particularly in light of Barker’s directive to interpret § 12-1001 in a broad fashion to favor debtors. It is true Barker adjudicated the stacking of a wild card exemption upon an exemption listed in § 12-1001. However, the Barker court gave no weight to that fact. The Seventh Circuit did not limit its holding to such a situation, as FMC suggests. To the contrary, Barker mandates our conclusion that § 12-1001(b) may be used to claim any nonbusiness personal property as exempt, whether or not that property appears in the list of specific personalty exempted in § 12-1001 or in any other Illinois exemption provision. Barker’s interpretation of Illinois exemption law is nothing new. The Seventh Circuit in In re Feilchenfeld, 99 F.2d 710 (7th Cir.1938) broadly interpreted ch. 52, § 13 of the Illinois exemption statute, the predecessor of § 12-1001, and refused to restrict the wild card exemption to tangible property in the absence of specific statutory language. The Court’s reasoning in that case is particularly relevant here: The legislature could easily have restricted the [wild card exemption] to tangible property by so stating. The fact that it did not so limit the selection of exempt property is significant and impels us to the conclusion that it did not mean to restrict the selection. The terminology “other property” is very broad and must be held by us to include intangible as well as tangible property, where not specifically excluded by statute. Id. at 712. Moreover, the result the Court reaches seems to be mandated by Matter of Smith, 640 F.2d 888 (7th Cir.1981). In that case, the Seventh Circuit was asked virtually the same question the Court is asked in this case, i.e. whether the phrase “any property” in the § 522(d)(5) Bankruptcy Code wild card exemption should be read to be limited to the § 522(d) specific property list, or whether it should be given its literal meaning and applied to any property regardless of whether or not otherwise exempt. The Smith court concluded that the legislative purpose behind § 522 mandated the broader reading. Smith, 640 F.2d at 891. The fact that Illinois has since opted out of § 522(d) does not alter the congressional purpose behind § 522. The purpose of § 522 remains to foster a debt- or’s fresh start. Therefore, the language of the Illinois wild card provision, which is virtually identical to that of § 522(d)(5), should be given a similar broad and logical interpretation to advance the purposes underlying both Illinois and Bankruptcy Code exemption law. As previously noted, FMC alleges that our conclusion “will have effectively done away with wage deduction in Illinois.” FMC’s Motion to Reconsider at 4. Its argument is that debtors will be allowed to exempt up to 85% of their wages under § 12-803 and then use § 12-1001(b) to exempt the remainder that is subject to wage deduction. There is no question the decision in this case will allow some debtors to exempt 100% of their wages and thus avoid garnishment by stacking these two exemptions. However, there are several observations worth making in that regard. First, this result not only is warranted by the clear statutory language and Seventh Circuit case law, such as Barker and Smith, but in fact is mandated by those authorities. Second, the overall statutory pattern supports this result. Section 12-803 states that the “maximum wages ... subject to collection under a deduction order” shall not exceed 15% of the debtor’s gross weekly pay. This language clearly does not prohibit debtors from exempting more than 85% of their wages. It only prevents an employer from deducting more than 15% of their wages. This statute is an exemption statute. It protects debtors and their families, not creditors, as FMC claims. Bliss v. Smith, 78 Ill. 359, 361 (1875); General Finance Corp. v. Rainer, 20 Ill.App.2d 192, 195, 155 N.E.2d 833, 835 (1st Dist.1958); Illinois Central Railroad Co. v. Cowles, 127 Ill.App. 456, 461-62 (1906). As a result, it is wholly consistent with § 12-803 for this Court to permit debtors to exempt more than 85% of their wages by additionally claiming the wild card exemption. Third, it is the clear intent of § 12-1001 to allow a debtor to retain an estate of up to $2,000 in personal property over and above the specific list of personal property contained in that provision. Personal property exceeding the specific personal property exemptions plus $2,000 in any other personal property the debtor chooses should be made available to creditors. In other words, the debtor should be allowed to save $2,000 and no more under the wild card exemption. The Court’s interpretation of § 12-1001 reaches exactly that result. The debtor in this case will be able to keep up to "$2,000 in personal property, including the garnished wages, as exempt and no more. If his equity interest in his personal property other than that which is otherwise exempt exceeds $2,000 in value, FMC and his other creditors will be able to realize on their claims from those assets. If the debt- or’s equity interest in all of his personal property other than that which is otherwise exempt does not exceed $2,000, the debtor will get to keep all of it, including the garnished wages, to the exclusion of his creditors. That is the precise result that both Congress in § 522 and the Illinois legislature in § 12-1001 intended. FMC argues that this result effectively wipes out wage garnishments in Illinois. That is simply not true. It only affects wage garnishments where the debtor’s interest in nonexempt personal property does not exceed $2,000. Where the debtor’s nonexempt personal property exceeds $2,000, the debtor will have to choose between saving wages and saving other property. See § 12-1002. In effect, the poor and destitute, i.e. those without significant additional assets, are protected as are their families. Those with significant additional assets are not protected. This appears to be a rational legislative scheme, and the Court sees no reason not to implement it. Finally, the Court cannot accept FMC’s contention that a debtor may not stack the wild card exemption on top of the wage deduction exemption because § 12-803 lacks language specifically allowing a debtor to do so. FMC’s restrictive reading is inappropriate. Section 12-803, like § 12-1001, must be construed broadly to favor debtors. See Bliss v. Smith, 78 Ill. 359, 361 (1875); Davis v. Siegel, Cooper & Co., 80 Ill.App. 278, 279 (1899). See also State Bank of Antioch v. Nelson, 132 Ill.App.3d 120, 122, 87 Ill.Dec. 476, 478, 477 N.E.2d 77, 79 (2d Dist.1985). The Court finds much more persuasive the lack of language in § 12-803 prohibiting the stacking of exemptions. The statutory history of both §§ 12-903 and 12-1001 supports the holding that the debtor may claim the wild card exemption in garnished wages. Section 12-803 was enacted as part of the new Illinois Code of Civil Procedure, effective July 1, 1982. Prior to that time, wage deductions were governed by Ill.Ann.Stat. ch. 62, § 71 et seq. (Smith-Hurd 1981). Section 73 was the counterpart of § 12-803. Prior to October 1, 1977, § 73 provided in part that “[a]ll compensation above the exempt amount is subject to collection under a wage deduction order.” That statutory language, which supports FMC’s position, was deleted by the Illinois legislature with the passage of P.A. 80-724, § 1. Neither the former provision nor similar language has been inserted into the statute since that time. This strongly suggests that the legislature intends to allow a debtor to claim a wage exemption above the statutorily exempt amount of 85% of gross wages. Section 12-1001 also was enacted about the same time as the new Illinois Code of Civil Procedure. Previously, a debtor claimed exemptions under Ill.Ann.Stat. ch. 52, § 13 (Smith-Hurd 1981). Prior to January 1, 1970, § 13 provided in part that the debtor could claim a wild card exemption of up to $300 worth of property “[pjrovided, that such selection and exemption shall not be made by the debtor, or allowed to him or her from any other money, salary or wages due him or her from any person or persons or corporation whatever.” That statutory language, which would support FMC’s position, was deleted by the Illinois legislature. From January 1, 1970 to January 1, 1982, former § 13 provided that a debtor may exempt up to $300 worth of property, “including money, and salary or wages due him.” See P.A. 76-1060, § 1; P.A. 81-241, § 1. That language was replaced by the enactment of a new Illinois exemption law, P.A. 82-685, § 2. Section 13(1)(b) of that law contained the same language as that in current § 12-1001(b), allowing a debtor to exempt up to $2,000 of an equity interest in “any other property.” This Court believes that the history of § 12-1001 shows an affirmative legislative intent to allow a debtor to use the wild card provision to exempt wages. In 1970, the Illinois legislature repealed the language in § 13 prohibiting a wild card exemption in wages. Section 13 specifically permitted such an exemption for the next 12 years. While from 1982 on the wild card exemption statute has been silent regarding the availability of its use to exempt wages, it does allow a wild card exemption in “any other property” with no reinstatement of the prior prohibition on its use for wages. This Court must interpret the current statute’s silence regarding wages in a manner consistent with Smith and Barker. Therefore, the conclusion is inevitable that rather than intending to return to pre-1970 exemption law with the 1982 omission, the legislature did not deem it necessary to continue the explicit authority allowing a debtor to use the wild card exemption for wages because the unlimited language “any other property” obviously included wages. CONCLUSION FMC asks this Court to read §§ 12-803 and 12-1001 in a restrictive fashion. The law is clear and to the contrary. Exemption laws are to be read broadly in favor of debtors and their families. If FMC does not like the result which flows from such a reading, this Court is not the proper forum to restrict a debtor’s clear statutory exemption rights. Only the Illinois legislature can add language to those statutes to effect the result sought by FMC. This Court cannot ignore the statutes’ language, rules of statutory construction, and the Feil-chenfeld, Smith, and Barker directives. Therefore, the Court adheres to its ruling that the debtor may claim his garnished wages as exempt under § 12-1001(b) and denies FMC’s motion for reconsideration. . While it might appear that this Court has devoted an inordinate amount of time and ef fort to a dispute involving only $203.68, in fact, this case is representative of a chronic problem. My brethern in the United States Bankruptcy Court for the Northern District of Illinois and I have repeatedly been asked to rule on whether a debtor can use §§ 522(f)(1), 522(g), and (h) to recover garnished wages as exempt. The Court commends the parties in this case for their spirited advocacy despite the small dollar amount in issue. .In its prior decision, the Court held that the debtor could not use §§ 522(g) and (h) on the facts of this case because the $600 limit of § 547(c)(7) would prevent a trustee from avoiding this $203.68 garnishment as a preference. FMC, of course, does not ask the Court to reconsider that conclusion. . In re Johnson, 53 B.R. at 923. Because Illinois has opted out of the Bankruptcy Code substantive exemption provision, § 522(d), Illinois debtors are confined to those exemptions available to them under Illinois law. See 11 U.S.C. § 522(b); Ill.Ann.Stat. ch. 110, § 12-1201 (Smith-Hurd 1985). . Ill.Ann.Stat. ch. 110, § 12-1001(b) (Smith-Hurd 1985). . Under § 12-1001, which is the primary Illinois personal property exemption provision, an individual debtor may claim the following specifically identified types of personal property as exempt, subject to some restrictions: necessary wearing apparel; bible; school books; family pictures of the debtor and the debtor's depend ents; automobile; implements, professional books or tools of the debtor’s trade; professionally prescribed health aids; life insurance annuities; various financial benefits; alimony support payments; pension plan payments; crime victim reparation law awards; wrongful death payments; life insurance payments; and personal injury payments. In addition, as previously noted, this same statutory provision contains a "wild card" provision allowing each individual debtor to claim up to $2,000 in "any other property” as exempt. Ill.Ann.Stat. ch. 110, § 12-1001(b) (Smith-Hurd 1985). . Ill.Ann.Stat. ch. 110, § 12-803 (Smith-Hurd 1985). . The only specific restriction on the wild card exemption set out in § 12-1001 is that "[t]he personal property exemptions set forth in this Section shall apply only to individuals and only to personal property which is used for personal rather than business purposes.” It has not been alleged that the debtor will use the wages subject to the wage deduction order for business rather than personal purposes. Furthermore, it is clear from the introductory sentence to § 12-1001 that the wild card exemption is limited to personal property of a debtor. Illinois law contains another provision providing a $7,500 exemption for real property of a debtor used as a residence. See Ill.Ann.Stat. ch. 110, § 12-901 (Smith-Hurd 1985). The question of whether the wild card exemption could be used to increase the exemption for personal property used as a residence, e.g., the beneficial interest in a land trust, from $7,500 to $9,500 is not now before the Court.

1605615-12813

BISSELL, Circuit Judge. Mainland Industries, Inc. (Mainland) appeals from the judgment of the United States District Court for the District of Oregon, No. Civ. 81-928-BE which found the U.S. patents Nos. 3,190,326 (’326) and 3,282,312 (’312) of Standal’s Patents Ltd. not invalid, enforceable and infringed by Mainland’s chipper machines, cutters and knives. We affirm. BACKGROUND Procedure Mainland filed a declaratory judgment action on October 2,1981, against Roderick E. MacDonald, as executor of the estate of George M. Standal (Standal), and Standal’s Patents Ltd. (collectively referred to as Standal’s Patents) requesting a declaration of invalidity, unenforceability and non-infringement of the patents in suit. Stan-dal’s Patents filed its answer to the complaint and counterclaimed, alleging infringement of the '326 and ’312 patents, false marking under 35 U.S.C. § 292(a), violations of the United States antitrust laws, and unfair competition. Upon motion of Mainland, the counterclaims for false marking on the knife blade, alleged antitrust violations and unfair competition were dismissed. The counterclaim for false marking in advertising brochures remained an issue for trial. The issues of invalidity, unenforceability and infringement of the patents in suit and the remaining false marking counterclaim were tried to a jury. During the course of the trial, the trial judge admitted into evidence, over Mainland’s objection, a videotaped deposition of Standal taken shortly before his death, during Canadian litigation for patent infringement filed by Standal’s Patents against Mainland's Canadian parent, Bow Valley Resource Services, Ltd. The jury returned the verdict in the form of answers to twenty-three interrogatories, and found that the patents in suit were not invalid, were enforceable and infringed by Mainland, and that Mainland committed false marking in its advertising brochures. Mainland moved at the appropriate times for a directed verdict and a judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial. These motions, denied by the district court, were directed to several issues: (1) whether, as a matter of law, litigation in a foreign jurisdiction cannot constitute reasonable excuse for delay in alleging infringement; (2) whether there was substantial evidence to support the jury’s findings that Mainland infringed, that no inequitable conduct occurred before the U.S. Patent and Trademark Office (PTO), and that Mainland practiced false marking in its advertising brochures; and (3) whether the videotaped testimony of Standal should have been excluded from the evidence. OPINION In this case we are not reviewing a “naked” general verdict, but a verdict accompanied by Rule 49(b), Fed.R.Civ.P., answers to interrogatories which assist our review in determining whether there is substantial evidence to support the jury’s findings. The motions for JNOV or new trial are reviewed in connection with the appeal from the judgment entered on the verdict. Railroad Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 1512, 220 USPQ 929, 935 (Fed.Cir.), cert. denied, 469 U.S. 871, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984). Denial of the JNOV Motion This court has outlined the analysis that the trial judge must perform in considering a motion for JNOV. The trial judge (1) must consider all the evidence in a light most favorable to the non-mover, (2) must not determine credibility of witnesses, and (3) must not substitute his choice for that of the jury’s in deciding between conflicting elements in the evidence. Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893, 221 USPQ 669, 672 (Fed.Cir.), cert. denied, 469 U.S. 857, 105 S.Ct. 187, 83 L.Ed.2d 120 (1984); Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1546, 220 USPQ at 197 (Fed.Cir.1983). In order to convince this court that the trial judge erroneously denied the JNOY motion, Mainland must show that the jury’s findings, presumed or expressed, were not supported by substantial evidence, Power Lift, Inc. v. Lang Tools, Inc., 774 F.2d 478, 227 USPQ 435, 436 (Fed.Cir.1985); Enviro-tech Corp. v. Al George, Inc., 730 F.2d 753, 758, 221 USPQ 473, 477 (Fed.Cir.1984); see also Railroad Dynamics, 727 F.2d at 1513, 220 USPQ at 936; Perkin-Elmer, 732 F.2d at 893, 221 USPQ at 673, or that the trial judge abused his discretion in permitting the jury to consider the Canadian litigation as a factor bearing on the reasonableness of the delay. See Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734, 742, 220 USPQ 845, 850 (Fed.Cir.1984). A. Laches and Estoppel In order to assert the defense of laches successfully Mainland must prove (1) unreasonable and unexcusable delay in the assertion of the claim and (2) material prejudice resulting from the delay. Leinoff, 726 F.2d at 742, 220 USPQ at 850. Laches, however, bars only the right to recover pre-filing damages. Id. On the other hand, equitable estoppel bars claims for patent infringement if Mainland committed itself to act, and acted as a direct consequence of the conduct of Standal’s Patents. See Young Engineers, Inc. v. ITC, 721 F.2d 1305, 1317, 2 Fed.Cir. (T) 9, 23 (1983) (estoppel to assert patent rights requires (1) unreasonable and inexcusable delay, (2) prejudice to the defendant, (3) affirmative conduct by patentee inducing belief of abandonment of claims against the alleged infringer, and (4) detrimental reliance by the infringer); Stickle v. Heublein, Inc., 716 F.2d 1550, 1559, 219 USPQ 377, 383 (Fed.Cir.1983) (estoppel by implied license cannot arise out of unilateral expectations or even reasonable hopes of one party); Studiengesellschaft Kohle, m.b.H. v. Dart Industries, Inc., 726 F.2d 724, 220 USPQ 841 (Fed.Cir.1984) (five year silence alone is not enough to give rise to estoppel). Once the delay in asserting infringement exceeds six years, the burden of proof shifts from the alleged infringer to the patentee to prove the existence and reasonableness of the excuse and to show lack of injury. Leinoff, 726 F.2d at 742, 220 USPQ at 850. This shifting of the burden of proof does not, however, change the nature of the inquiry, which remains essentially a fact specific inquiry determined in light of facts of each case. Leinoff, 726 F.2d at 742, 220 USPQ at 850; see also Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 1550, 221 USPQ 1, 10 (Fed.Cir.1984). The thrust of Mainland’s position is that Standal’s Patents is barred under the doctrines of laches and estoppel from asserting patent infringement for two reasons: (1) litigation outside the United States is no excuse for delay, and (2) Mainland is prejudiced by the delay due to the death of many persons with actual knowledge of the facts and the unavailability of certain documents due to the lapse of time. This second assertion remains unsupported by any facts. In carrying its burden of proof, Standal’s Patents submitted evidence both to show the delay was justified, and that Mainland was not prejudiced by the delay. Mainland in rebuttal offered no evidence of additional investment in the business, increased advertising expenses, improvements made to its equipment or any other change in reliance upon Standal’s Patents’ delay. The jury was instructed that other patent litigation could not excuse the delay in pursuing the patent infringement claim unless Mainland understood Standal’s Patents’ intention to pursue its patent rights. These instructions were not objected to. The trial judge reviewed the jury’s findings on laches and estoppel and found them supported by substantial evidence. We agree with the conclusion of the trial judge: Mainland has failed to set forth how the jury’s findings on laches and estoppel are not supported by substantial evidence. Moreover, we are unwilling to say as a matter of law that litigation in non-United States forums cannot be considered in determining excusable delay and on the factual record of this case, it was not an abuse of discretion to allow the jury to consider that foreign litigation. B. Remaining Issues Mainland argues that there is no substantial evidence to support the jury findings on inequitable conduct, infringement and false marking. We have considered Mainland’s arguments and have carefully reviewed the evidence relied upon at trial, and conclude that the findings on inequitable conduct, infringement, and false marking are supported by substantial evidence. No error in the jury instructions is presented. It was with these instructions that the jury answered twenty-three interrogatories, including separate questions for each element of these issues. “Determining the weight and credibility of the evidence is the province of the trier of fact.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 856, 102 S.Ct. 2182, 2189, 72 L.Ed.2d 606, 214 USPQ 1, 7 (1982). Denial of the Motion for New Trial Appellate review of a motion for new trial is conducted on an abuse of discretion standard. Railroad Dynamics, 727 F.2d at 1512, 230 USPQ at 935. Mainland argued on its motion for a new trial, and urges to this court on appeal, that prejudicial error occurred in permitting the jury to view the videotaped deposition from the Canadian litigation of. Standal who was very ill at the time of taping. “The Federal Circuit reviews procedural matters that are not unique to patent issues under the law of the particular regional circuit court where appeals from the district court would normally lie.” Panduit Corp. v. All States Plastic Manufacturing Co., 744 F.2d 1564, 1574-75, 223 USPQ 465, 471-72 (Fed.Cir.1984) (motion to disqualify law firm from representing opposing party); see also Chemical Engineering Corp. v. Essef Industries, Inc., 795 F.2d 1565 (Fed.Cir.1986) (award of expenses under Fed.R.Civ.P. 37(c)); Heat & Control, Inc. v. Hester Industries, Inc., 785 F.2d 1017, 228 USPQ 927 (Fed.Cir.1986) (propriety of order quashing subpoena in discovery matter). Application of the rules of evidence is a procedural matter and under Ninth Circuit law remains within the discretion of the trial judge. United States v. Ordonez, 737 F.2d 793, 811 (9th Cir.1984). The trial judge admitted Standal’s out-of-court statements under the Rule 804(b)(1), Fed.R.Evid., exception to the bar against the admission of hearsay, Rule 802. Rule 804(b)(1) provides: Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Standal was unavailable because of his death. The trial judge found that, although different patents were involved, the issues raised in the Canadian litigation were substantially similar to the issues raised in the present litigation and that Mainland’s parent company possessed requisite interest, opportunity and motive to develop the issues fully on cross-examination. The deposition was taken under oath and the trial judge regarded it as sufficiently trustworthy to be used to ascertain the truth. Compliance with the law of the Canadian proceeding is not contested. See Barker v. Morris, 761 F.2d 1396, 1399 (9th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986) (admissibility of videotape deposition of unavailable witness in criminal prosecution is determined by whether there has been an adequate showing that the videotaped testimony had specific guarantees of trustworthiness and, though inadmissible under the California Evidence Code, the testimony would have been admitted under Fed.R. Evid. 804(b)(5)), see also United States v. King, 552 F.2d 833, 841-42 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977) (discussion of use of photographic or electronic presentation of testimony compared to stenographic transcript and live testimony). Mainland failed to indicate how the trial judge abused his discretion in permitting the jury to view the deposition and we find none. Since Mainland asserts prejudice in the admission of the videotape without delineating an evidentiary rule that excludes the admission, we view this request under Fed.R.Evid. 403 which provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

4098569-15960

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE STEPHEN V. WILSON, District Judge. Pursuant to 28 U.S.C. Section 636, the Court has reviewed the petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination. IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition and dismissing the action with prejudice. IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge’s Report and Recommendation and Judgment by the United States mail on petitioner. JUDGMENT Pursuant to the Order of the Court adopting the findings, conclusions, and recommendations of United States Magistrate Judge Rosalyn M. Chapman, IT IS ADJUDGED that the petition for writ of habeas corpus is denied and the action is dismissed with prejudice. REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE ROSALYN M. CHAPMAN, United States Magistrate Judge. This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. BACKGROUND I On July 26, 2001, petitioner Aaron Moultrie entered active duty with the United States Army. Answer, Att. 1. On October 9, 2003, following a trial by general court-martial in Mannheim, Germany, petitioner was convicted of one count of premeditated attempted murder in violation of Uniform Code of Military Justice (“U.C.M.J.”) Art. 80, 10 U.S.C. § 880 (“count 1”), one count of failing to obey a lawful general regulation (prohibiting displaying a knife longer than three inches in a manner likely to make a reasonable person fear their safety) in violation of U.C.M.J. Art. 92, 10 U.S.C. § 892 (“count 2”), and one count of assault with a dangerous weapon (knife) in violation of U.C.M.J. Art. 128, 10 U.S.C. § 928 (“count 3”). Answer, Att. 2. The petitioner was sentenced to 10 years confinement, forfeiture of months, and a dishonorable discharge; the Department of the Army disapproved the guilty finding on count 3 and reduced petitioner’s sentence to 114 months confinement and loss of $750.00 pay per month for 114 months. Answer, Att. 3. The petitioner appealed his conviction and sentence to the United States Army Court of Criminal Appeals, which, on Sep tember 26, 2006, dismissed count 2 as “an unreasonable multiplication of charges,” affirmed the remaining finding of guilty and reassessed petitioner’s sentence providing for “a dishonorable discharge, confinement for 112 months, and forfeiture of $750.00 pay per month for 112 months.” Answer, Att. 4. The petitioner sought review from the United States Court of Appeals for the Armed Forces, which denied review on December 15, 2006. Answer, Atts. 5-6. On June 26, 2008, petitioner filed a petition for clemency and parole in the Army Clemency and Parole Board (“the Board”), which denied his petition on August 5, 2008, and instead determined petitioner should be placed “on Mandatory Supervised Release (“MSR”), with alcohol abuse aftercare conditions, once [petitioner] reach[es][his] minimum release date....” Answer, Att. 10-11. On June 3, 2009, petitioner was released from physical custody and placed on MSR, despite refusing to sign the MSR agreement, and petitioner’s MSR is scheduled to expire October 12, 2012. Answer, Att. 11 at 2, 4-5. II On June 22, 2009, petitioner filed the pending habeas corpus petition under 28 U.S.C. § 2241 seeking the termination of MSR, and on August 28, 2009, the Government answered the petition. The petitioner did not file a reply. The petition raises the following grounds for habeas corpus relief: Ground One: “Petitioner’s placement on [MSR] is illegal where the [ ] Board is not statutorily authorized to impose involuntary conditions of release” on MSR (Petition at 10-15); Ground Two: “Petitioner’s placement in [MSR] is illegal where placement in [MSR] resulted in abrogation of [petitioner’s] constitutionally protected liberty interest in good conduct time abatement days and earned abatement days without due process” (Petition at 15-19); and Ground Three: “Petitioner’s placement in [MSR] is illegal where the [] Board’s action resulted in an increase in punishment prohibited by the the [sic] Due Process Clause of the Fifth Amendment and a violation to [sic] clearly established federal law as determined by the Supreme Court.” (Petition at 20-26). DISCUSSION III The respondent contends petitioner’s case is “moot” since petitioner “was not in custody at the time of filing this lawsuit[.]” Answer at 19:3-5, 19:19-20:17. There is no merit to this claim, whether denominated mootness or lack of custody. Section 2241 provides that federal courts have jurisdiction to grant writs of habeas corpus to individuals “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The petitioner is in “custody” within the meaning of Section 2241 because he is “subject to supervised release .... ” Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir.), cert. denied, 537 U.S. 1022, 123 S.Ct. 544, 154 L.Ed.2d 431 (2002); Mujahid v. Daniels, 413 F.3d 991, 994-95 (9th Cir.2005), cert. denied, 547 U.S. 1149, 126 S.Ct. 2287, 164 L.Ed.2d 817 (2006); see also Calley v. Callaway, 519 F.2d 184, 191 n. 5 (5th Cir.1975) (“The Army has granted [inmate’s] application for parole and he has been released from confinement. This fact, however, does not deprive the federal courts of habeas corpus jurisdiction, for a person on parole is ‘in custody’ for purposes of habeas corpus jurisdiction.”), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976); Huschak v. Gray, 642 F.Supp.2d 1268, 1280 (D.Kan.2009) (“[Petitioner was not released from [military] ‘custody’ even when he was placed on MSR, because parole or MSR constitutes ‘custody.’ ”). Moreover, petitioner’s claims are not moot since he is challenging the legality of his placement on MSR, and he clearly has a legal interest in the outcome of this litigation. See, e.g., Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam) (“In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” (citations and internal quotation marks omitted)); Serrato v. Clark, 486 F.3d 560, 565 (9th Cir.2007) (habeas petition not moot when petitioner was released on supervised release since petitioner “seeks relief in the form of reduction of ... supervised release”). IV The respondent also contends petitioner “has failed to name the proper immediate custodian and this Court lacks jurisdiction because the proper [rjespondent is the Commandant of the [United States Disciplinary Barracks at Fort Leavenworth, Kansas (“USDB”)].” Answer at 20:18-21:17. There also is no merit to this claim. “The federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is ‘the person who has custody over [the petitioner].’ ” Rumsfeld v. Padilla, 542 U.S. 426, 434, 124 S.Ct. 2711, 2717, 159 L.Ed.2d 513 (2004) (quoting 28 U.S.C. § 2242); see also Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.1992) (per curiam) (“The proper respondent in a federal habeas corpus petition is the petitioner’s ‘immediate custodian.’ ” (citation omitted)). Thus, when a petitioner is in physical confinement, “the proper respondent is the warden of the facility where the prisoner is being held.... ” Padilla, 542 U.S. at 435, 124 S.Ct. at 2718; Brittingham, 982 F.2d at 379. However, “a habeas petitioner who challenges a form of ‘custody’ other than present physical confinement may name as respondent the entity or person who exercises legal control with respect to the challenged ‘custody.’ ” Padilla, 542 U.S. at 438, 124 S.Ct. at 2720; Braden v. 30th Judicial Cir. Court of Ken., 410 U.S. 484, 494-95, 93 S.Ct. 1123, 1129, 35 L.Ed.2d 443 (1973). Here, as respondent acknowledges, Answer at 6:9-12, petitioner was not physically confined when he filed the pending habeas corpus petition; therefore, the USDB Commandant is not the proper respondent. Rather, the proper respondent is petitioner’s probation/parole officer who supervises his MSR, see Huschak, 642 F.Supp.2d at 1274 (“Inmates placed on MSR are deemed ‘as if on parole’ ... [and] are under the supervision of a U.S. Probation Officer.” (citation omitted)); Matthews v. Meese, 644 F.Supp. 380, 381 (D.C.D.C.1986) (“[F]or purposes of the habeas statute, the custodian of a parolee is his or her parole officer.... It is the parole officer who is charged with the day-to-day, direct supervision of the parolee, and to whom the parolee must periodically report. The parole officer determines whether or not a parolee is in compliance with the terms of his or her parole, and it is upon that determination that the parolee’s freedom from incarceration rests.”), and that person is located in the Central District of California. Answer, Exh. 11 at 3; see also Feldman v. Perril, 902 F.2d 1445, 1450 (9th Cir.1990) (“The District of Arizona administers his current parole, therefore ... it is in that district that petitioner must proceed.”). Therefore, this Court can obtain personal jurisdiction over petitioner’s probation officer. V A military prisoner who is released from confinement prior to the completion of his full sentence may be subject to MSR, parole, or good conduct time. Huschak, 642 F.Supp.2d at 1272-73. The Department of Defense (“DoD”) introduced MSR in 2001. Huschak, 642 F.Supp.2d at 1273; Pena, 64 M.J. at 262. MSR “covers specified classes of prisoners who have served sufficient time in confinement to be considered for parole, but who are not granted parole.” Pena, 64 M.J. at 262. “Prior to [2001], if an inmate was not accepted for parole and remained confined until his [minimum release date], the inmate would be unconditionally released without supervision. This allowed inmates who may have been judged too great a risk or otherwise unworthy of parole, to be released without the conditions imposed upon the release of inmates who were granted parole.” Huschak, 642 F.Supp.2d at 1273. To correct this, and to facilitate the rehabilitation of inmates, DoD concluded that: [t]he supervised release of prisoners who are not granted parole prior to their [minimum release date] is a highly effective technique to provide an orderly transition to civilian life for released prisoners and to better protect the communities into which such prisoners are released. Accordingly, it shall be the policy of the Department of Defense to use supervised release in all cases except where it is determined by the Service Clemency and Parole Boards to be inappropriate. Department of Defense Instructions (“DoDI”) 1325.7, § 6.20.1 (2001). “As with parole, [MSR] applies from the time of release from prison until the end of the prisoner’s approved sentence, and it may be revoked for violation of the terms and conditions of the program.” Pena, 64 M.J. at 262; Huschak, 642 F.Supp.2d at 1274. However, “[u]n-like the parole program, release on MSR is not voluntary.” Huschak, 642 F.Supp.2d at 1273; Pena, 64 M.J. at 262. “In addition to the conditions that may be imposed during parole, the Clemency and Parole Board may use the [MSR] program to impose ‘any additional reasonable supervision conditions ... that would ... further an orderly and successful transition to civilian life for released prisoners, and which would better protect the communities into which prisoners are released.’ ” Pena, 64 M.J. at 262 (quoting DoDI 1325.7, § 6.20.2 (2001)). “Release from confinement on MSR is considered acceptance of the terms and conditions of supervised release.” Huschak, 642 F.Supp.2d at 1274; DoDI 1325.7 § 6.20.4 (2001). In Ground One, petitioner claims his placement on MSR is “illegal” because the “Board is not statutorily authorized to impose involuntary conditions of release” on MSR. Petition at 10-15. The respondent disagrees, however, contending “the military has statutory authority to implement an involuntary and mandatory supervised release program as part of [its] system of parole.” Answer at 25:23-29:12. The respondent is correct. Statutory authority for MSR is derived from 10 U.S.C. § 952, which provides: The Secretary concerned may provide a system of parole for offenders who are confined in military correctional facilities and who were at the time of commission of their offenses subject to the authority of that Secretary. 10 U.S.C. § 952(a). “ ‘The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.’ ” Samson v. California, 547 U.S. 843, 850, 126 S.Ct. 2193, 2198, 165 L.Ed.2d 250 (2006) (quoting Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 2598, 33 L.Ed.2d 484 (1972)). As described above, MSR functions in the same manner as parole. See Huschak, 642 F.Supp.2d at 1276 (“The system of MSR applied to petitioner is a parole system in which petitioner was required to serve the balance of his sentence outside of confinement on the condition that he abide by certain rules.”); United States v. Pena, 61 M.J. 776, 782 (A.F.Ct.Crim.App.2005) (“MSR is, for all practical purposes, parole.... Apart from the differences in calculating release eligibility dates, MSR and parole are virtually indistinguishable.”), affirmed by, United States v. Pena, 64 M.J. 259 (C.A.A.F.), cert. denied, 550 U.S. 937, 127 S.Ct. 2281, 167 L.Ed.2d 1095 (2007). Nevertheless, petitioner argues that “MSR can not [sic] be parole because the program is involuntary and the release is non-discretionary.” Petition at 11. Again, the Court disagrees. Parole is not invariably a voluntary or discretionary system. See, e.g., Morrissey, 408 U.S. at 477-78, 92 S.Ct. at 2598 (“Under some systems, parole is granted automatically after the service of a certain portion of a prison term. Under others, parole is granted by the discretionary action of a board, which evaluates an array of information about a prisoner and makes a prediction whether he is ready to reintegrate into society.”); Huschak, 642 F.Supp.2d at 1276 (“It does not matter whether the conditions were voluntary or involuntary ... [since] some parole systems are automatic.”); Pena, 61 M.J. at 782 (MSR “may be an involuntary form of our traditional notion of parole, in that the inmate does not ask or apply for it, but it is parole nevertheless.” (footnote omitted)). Finally, petitioner attempts to compare MSR to the civilian system of supervised release under 18 U.S.C. § 3583. Petition at 12, 14. However, petitioner’s argument is not persuasive, as the Huschak court explained: The federal civilian system of supervised release differs from most parole systems because supervised release is imposed upon civilians by a court, instead of a parole board, as part of the sentence. The period of actual confinement ordered at the time of sentencing is not shortened by supervised release under § 3583; in fact, it may be lengthened if supervised release is revoked. This court need not decide whether the sys tem of supervised release under § 3583 is a “parole” system. That is not the issue here. The question is whether MSR is a “parole” system. We answer the question “yes.” Huschak, 642 F.Supp.2d at 1276. For all the reasons discussed herein, Ground One is without merit. Id.; see also Pena, 61 M.J. at 783 (“MSR as devised and implemented in the [Department of Defense] is part of the ‘system of parole’ authorized by 10 U.S.C. § 952.”). VI

956362-12854

OPINION PER CURIAM: This case comes before the court on defendant’s motion, filed January 25,1977, for judgment pursuant to Rule 141(b), moving that the court adopt as the basis for its judgment in this case the recommended decision of Trial Judge Harry E. Wood, filed November 23,1976, pursuant to Rule 134(h), since plaintiff has failed to file a notice of intention to except thereto and the time for so filing pursuant to the Rules of the court has expired. Upon consideration thereof, without oral argument, since the court agrees with the trial judge’s recommended decision, as hereinafter set forth, it hereby grants defendant’s motion and affirms and adopts the said decision as the basis for its judgment in this case. Therefore, it is concluded that plaintiff is not entitled to recover and the petition is dismissed. OPINION OF TRIAL JUDGE WOOD, Trial Judge: On June 10, 1971, plaintiff, then a sergeant (E-7) with approximately 17 years of active military service, was honorably discharged from the Army and determined to be ineligible for immediate reenlistment therein. He here contends (1) that the said discharge and determination were in violation of Army Regulations and unlawful, and (2) that the Army Board for Correction of Military Records acted arbitrarily in failing to correct his military records to reflect, in substance, that he had not been discharged from the Army June 10, 1971. By Order dated March 14, 1975, on defendant’s motion and plaintiff’s cross-motion for summary judgment, the court denied both motions without prejudice and returned the case to the trial division for trial. Trial has now been held, and briefing has been completed. For the reasons and under the circumstances hereinafter appearing, it is concluded that plaintiff is not entitled to recover. In June 1970, while serving on active duty at Redstone Arsenal, Alabama, under a term of enlistment expiring on or about June 16, 1971, plaintiff executed a request for transfer to Korea. The request constituted a “commitment to extend terms of enlistment or reenlistment in order to have sufficient remaining service to complete the prescribed tour for the area desired” should plaintiff’s request be approved and his reassignment directed, and provided that the “commitment will be accomplished prior to departure from home station.” At all times here material, the prescribed “short tour” of duty in Korea was 13 months. Plaintiff’s request for transfer was duly approved, and on October 13,1970, his reassignment to Korea effective December 31, 1970, was directed, but he subsequently underwent surgery at Redstone Arsenal, and therefore did not depart for Korea in 1970 as originally scheduled. Immediately after his release from medical hold at Redstone Arsenal, however, orders, dated March 31, 1971, transferring him to Korea effective May 15, 1971, were promulgated. Between late March and mid-May 1971, the matter of plaintiff’s reenlistment (or extension of enlistment) in order to have sufficient time remaining, prior to expiration of his term of service, to complete the 13-month tour prescribed for Korea, was discussed with plaintiff on several different occasions, by both a career counselor at Redstone Arsenal and the personnel sergeant major, U. S. Army Missile Command, Redstone Arsenal. Plaintiff was not required to reenlist pri- or to his transfer to Korea, and he obviously did not do so. During the said period, however, plaintiff was urged and requested to reenlist on several occasions; he was advised it would be necessary for him to reenlist either at Redstone or after his arrival in Korea; he was advised that should he refuse to reenlist both at Redstone and in Korea, he would be returned to the United States for discharge; and he was also advised that should he receive a discharge under such circumstances, he would be ineligible to reenlist in the Army for a period of 93 days following discharge, and, even if successful in reenlisting thereafter, would lose at least one grade. During the course of one such discussion concerning reenlistment with a career counselor at Redstone Arsenal, plaintiff stated he had found a way “to beat the system”, by declining to reenlist both there and in Korea, being returned to the United States for discharge, and then stating that he had changed his mind and wanted to reenlist. The career counselor advised plaintiff that such a plan simply would not work. About May 15, 1971, plaintiff left Red-stone Arsenal and proceeded overseas, arriving in Korea about May 19, 1971. At that time he had less than a month remaining on his current period of enlistment. Accordingly, on June 2, 1971, orders reciting that plaintiff’s term of service would expire June 16, 1971, and reassigning him to Fort Lewis, Washington, for separation processing at the expiration of his term of service, were issued and delivered to plaintiff. On June 4, 1971, plaintiff went to the office of the 199th Personnel Service Company, Eighth United States Army Personnel and Administration Branch (Provisional), Camp Hayes, Korea, where he met with Chief Warrant Officer 2 (“CW2”) Reyes, Chief, Team No. 1, 199th Personnel Service Company. At the June 4, 1971 meeting, CW2 Reyes advised plaintiff that he could reenlist in Korea to have a sufficient period of service remaining to complete the required 13-month tour in Korea, and that, if he failed to reenlist in Korea, he would be returned to the continental United States and be separated from the Army. CW2 Reyes further informed plaintiff at that time that should plaintiff elect to follow the latter course, he would be ineligible to reenlist in the Army for a period of at least 93 days, and that, should he endeavor to reenlist after that period, the Army would have to make a determination as to the grade in which he might be permitted to reenlist. CW2 Reyes also specifically (and accurately) brought to plaintiff’s attention certain provisions of Army Regulation 601-280, setting forth “penalties or disadvantages” that would follow from plaintiff’s refusal to reenlist in Korea for the purpose of completing his oversea tour. Thereafter, CW2 Reyes prepared and signed a “Statement of Counseling” providing as follows: This is to state that the undersigned has, at Camp Hayes, Korea (ASCOM) APO SF 96220, at 1020 hours, this date, counseled PSG HARRY WIDNER, [ XXX-XX-XXXX ], HHC EUSA APO 96301, in accordance with paragraph 4-5, AR 601-280. Subsequent to counseling, PSG Widner has refused to comply with published instructions and is aware of the effects of his refusal to meet length of service requirements. Plaintiff acknowledged the said “Statement” by placing his signature thereon. It is plain from the foregoing that in Korea, on June 4, 1971, plaintiff was afforded the right to reenlist to meet length of service requirements. It is equally plain that with full knowledge of the provisions of AR 601-280 specifying the adverse consequences that would follow such a refusal, plaintiff then refused to do so. But for plaintiff’s refusal to reenlist in Korea, the June 2, 1971 orders reassigning plaintiff to Fort Lewis would have been revoked, and he would not have been returned to the United States for separation processing. Since plaintiff did refuse to reenlist in Korea, however, he was duly returned to Fort Lewis. On his arrival there plaintiff tried to reenlist, but he was instead honorably discharged June 10, 1971. His Report of Discharge was coded “RE-2A”, to indicate that he was “Fully qualified for reenlistment; however, not eligible for reenlistment in grade and ineligible to enlist in the United States Army for 93 days after date of separation.” According to plaintiff’s trial testimony, he made a number of unsuccessful efforts to reenlist in the Army during the period September 14-November 2, 1971. In any event, he did reenlist in the Army, in the grade of sergeant (E-5), September 18, 1972. On January 1,1976, after completing more than 20 years active service, he was retired in the grade of staff sergeant (E-6). Plaintiff here insists that he was “at all times ready, willing and able to reenlist” prior to his departure from Redstone Arsenal in May 1971, that he “made an effort to reenlist prior to leaving his home station”, and that he was “never requested” to reenlist at Redstone Arsenal. Plaintiff’s depiction of what occurred at Redstone Arsenal cannot be accepted. Although plaintiff was not advised that he must reenlist prior to his oversea transfer, he was plainly accorded the opportunity to do so, and on more than one occasion, but repeatedly declined to take advantage of those opportunities. Plaintiff also asserts that his honorable discharge June 10, 1971, and the Army’s concomitant determination that he was ineligible for immediate reenlistment, were unlawful. His position is that his transfer to Korea, shortly prior to the expiration of his term of service, without first requiring him to reenlist at Redstone Arsenal, was in violation of Army Regulations, and that unlawful action directly resulted in his “losing” some 15 months of active service and thereafter being paid less than the pay of a sergeant (E-7). On the facts of this case, that position is devoid of merit. Although the matter is not entirely free from doubt, it may be assumed, for present purposes, that under applicable Army Regulations plaintiff should have been required to decide, at Redstone Arsenal, whether or not he would “take action * * * for the purpose of acquiring sufficient time to serve the full tour” of duty prescribed for Korea. In so assuming, however, several facts must be borne in mind. First, defendant could not force plaintiff to reenlist, either at Redstone or elsewhere. The decision whether or not to reenlist was plaintiff’s, and his alone. Secondly, at Red-stone Arsenal, plaintiff failed to reenlist although repeatedly urged and requested tp do so. But for that failure and the subsequent refusal to do so, plaintiff’s present situation would never have materialized. On analysis, what plaintiff really complains about is that he should have been required to refuse to take appropriate action at Redstone Arsenal to obtain a sufficient period of service to meet his voluntary commitment to oversea duty. Had this been done, however, plaintiff’s refusal would have led inevitably to his discharge from the Army, in precisely the same way,. and with precisely the same consequences, • that followed his later refusal to reenlist in Korea. Pretermitting all other considerations, it is clear that even if defendant erred in transferring plaintiff to Korea, notwithstanding his then current term of enlistment was coming to a close, “* * * recovery would not follow. To sustain a recovery based upon administrative impropriety a plaintiff must demonstrate the manner in which he has been prejudiced thereby.” Murphy v. United States, 209 Ct.Cl. 352, 360 (1976), and cases cited therein. Plaintiff’s discharge and the decision to deny him immediate reenlistment resulted solely and directly from his own failure and refusal to reenlist, with knowledge of the consequences of such actions, not from any unlawful action on the part of defendant. Ibid; of. Steuer v. United States, 207 Ct.Cl. 282, 292-94 (1975). Plaintiff also argues that defendant’s failure to “counsel in time to give Plaintiff the opportunity to be fully counseled and to have such counseling statement removed, if appropriate * * * ” are erroneous. The evidence of record herein squarely refutes any notion of less than full and proper counseling; and, AR 601-280, on which plaintiff relies in connection with the second aspect of this argument, requires that a request for withdrawal of a counseling statement be “fully justified”. All else aside, the record herein convincingly establishes that full justification for withdrawal of plaintiff’s “Statement of Counseling” could not have been shown even had plaintiff sought to have it withdrawn. A number of other, and at least partially repetitive, arguments, including the assertions that plaintiff was on medical hold at Redstone Arsenal when transferred to Korea, that his counseling in Korea was (or may have been) erroneous, that his transfer to Fort Lewis was required because of Army error in sending him to Korea “in the first place”, that he had a “right to reenlist” at Fort Lewis, and that the Army erred in respect to the Separation Program Numbers listed in his June 2, 1971 orders and on his Report of Discharge, have all been carefully considered and found wanting. Extended comment on these arguments, at this point is, however, unnecessary. In sum, on this record, the Department of the Army’s decision to discharge plaintiff, and to declare him ineligible for immediate reenlistment, was not legally erroneous, and deserves to be sustained.

11220482-17764

ORDER ADOPTING MAGISTRATE’S FINDINGS AND RECOMMENDATIONS BATTEY, District Judge. Pursuant to 28 U.S.C. § 636(b)(1)(B), the above-entitled case was referred to Magistrate Judge Mark A. Moreno. On August 31, 2000, Magistrate Judge Moreno issued his findings and recommendations as to defendant’s motion to suppress statements made on September 20, 1999, and December 8, 1999. Magistrate Judge Moreno recommended that defendant’s motion be denied. The standard of review of a magistrate judge’s findings and recommendations is de novo. 28 U.S.C. § 636(b). Defendant has ten days to file objections to the magistrate’s findings and recommendations. Id. According to the Eighth Circuit Court of Appeals, “[Ojbjections must be timely and specific to trigger de novo review by the District Court of any portion of the magistrate’s report and recommendation.” Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir.1990). Defendant has not objected to the findings and recommendations of the magistrate judge. The magistrate judge’s report was dated August 31, 2000; therefore, the ten days has lapsed. Given that defendant has not objected, a de novo review by this Court is not triggered. Based upon the Court’s conclusion that the findings and recommendations of Magistrate Judge Moreno are reasonable, it is hereby ORDERED that the findings and recommendations issued by Magistrate Judge Moreno dated August 31, 2000, are adopted by this Court. IT IS FURTHER ORDERED that defendant’s motion to suppress (Dockets # 20) is denied. REPORT AND RECOMMENDATION FOR DISPOSITION OF DEFENDANT’S MOTION TO SUPPRESS STATEMENTS MORENO, United States Magistrate Judge. INTRODUCTION Defendant, Orville J. Black Spotted Horse (Black Spotted Horse), filed a Motion to Suppress, with incorporated legal authority, on July 18, 2000. A hearing on the Motion was subsequently held on August 24, 2000 in accordance with the District Court’s July 24, 2000 Order of Reference. Because Black Spotted Horse’s Motion is a dispositive one, this Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following report and recommendation for disposition of Black Spotted Horse’s Motion. PROCEDURAL HISTORY Black Spotted Horse was originally charged by indictment filed on April 20, 2000 with Attempted Aggravated Sexual Abuse, in violation of 18 U.S.C. §§ 1153, 2241(a) and 2246(2). The indictment alleges that Black Spotted Horse forcibly attempted to engage in a sexual act with Valencia White Hat near St. Francis, South Dakota, on the Rosebud Indian Reservation. Black Spotted Horse has pled not guilty to the charge and is currently out on bond. Prior to his release, Black Spotted Horse filed a Motion to Suppress and requested a hearing. In his Motion, Black Spotted Horse seeks to suppress any and all statements made by him on September 20,1999 and December 8,1999. Upon review of the Motion and after consultation with counsel, the Court held a hearing at which two witnesses testified and five exhibits were received into evidence. The Court thereafter took the matter under advisement. FACTUAL BACKGROUND On September 18, 1999, Valencia White Hat reported that Orville Black Spotted Horse tried to rape her. Based on information gathered by Rosebud law enforcement officials, Black Spotted Horse was arrested on tribal charges and incarcerated at the Rosebud Tribal Jail. The Federal Bureau of Investigation (FBI) was contacted and Special Agent Thomas Jones was assigned to investigate any federal charges arising out of the incident. As part of his investigation, Jones, along with Rosebud Criminal Investigator Grace Her Many Horses, interviewed Black Spotted Horse on September 20, 1999 in a detective’s office at the Rosebud Jail. Prior to the commencement of the interview, Jones advised Black Spotted Horse of his constitutional rights via a written interrogation and advice-of-rights form. Black Spotted Horse read the form, signed it and agreed to talk to Jones without the benefit of counsel. The interview began shortly before 11:30 a.m. and continued for just under an hour until a break was taken. During this phase of the interview, Black Spotted Horse denied any wrong-doing, including having physical contact with White Hat. Following an eight minute break, the interview continued, with Jones confronting Black Spotted Horse with what Jones believed to be inconsistencies in Black Spotted Horse’s version of what took place. Black Spotted Horse persisted in his denials and became angry at Jones’ accusations. Jones then began to use a “theme development” type of interview technique and Black Spotted Horse calmed down. “Biting off on” Jones’ consensual sex theme, Black Spotted Horse changed his story. He continued to deny trying to rape White Hat, but did admit to hugging and kissing her and pulling her pants and underwear down. He insisted though that he “backed off’ after noticing that she was menstruating. This portion of the interview lasted approximately an hour. . After a three-minute break, Jones resumed the interview. When Black Spotted Horse once again denied that he tried to rape White Hat, Jones asked Black Spotted Horse if he would write out a narrative of what happened. Black Spotted Horse then provided Jones with a written statement summarizing what he had told Jones during the oral portion of the interview. Before parting company that day, Jones asked Black Spotted Horse if he would submit to a polygraph examination some time in the future. Black Spotted Horse said that he would and an examination was later scheduled for December 8, 1999 in Pierre. Subsequent to the interview but before the scheduled polygraph examination, Black Spotted Horse was released from tribal custody. Following his release, Black Spotted Horse indicated that he was still willing to take the examination but that he did not have a ride from Rosebud to Pierre. Based on these representations, arrangements were made to have Black Spotted Horse, along with another individual (who was scheduled to be polygraphed right after Black Spotted Horse), transported to Pierre by a Rosebud Criminal Investigator. Black Spotted Horse was introduced to and met with Lester Davis, a Special Agent with the FBI, in the grand jury room of the Federal Building around 9:30 a.m. on December 8th. Davis explained how the polygraph worked and informed Black Spotted Horse of his Miranda rights from the same advice-of-rights form Jones had previously gone over with him. Davis read the form out loud and Black Spotted Horse signed the same. Thereafter, Black Spotted Horse executed a polygraph interview consent form which advised him that he could refuse to take the test, could stop the test at any time and could refuse to answer any individual questions. During the pre-test portion of the examination, Davis obtained background information from Black Spotted Horse and went over the statements that he and White Hat had given to Jones. Davis and Black Spotted Horse also went through the test questions, including the two relevant questions pertaining to whether Black Spotted Horse attempted to force White Hat to have sexual intercourse with him and whether he hit White Hat on the night in question. Once Black Spotted Horse was hooked up to the polygraph components, he was asked eight test questions, administered an acquaintance test and then asked the test questions two more times. The test results revealed clear deception on Black Spotted Horse’s part with respect to the relevant questions. Davis advised Black Spotted Horse of the test results and proceeded into a post-test interview. Despite using various interview techniques, Black Spotted Horse “pretty much stuck to [his earlier] story.” At Davis’ request, Jones entered the room and he and Davis interrogated Black Spotted Horse together. A short time later, Black Spotted Horse asked to speak to Jones in private. Davis then left the room and while talking to Jones alone, Black Spotted Horse admitted that he attempted to rape White Hat. Jones then called Davis back into the room and Black Spotted Horse repeated and provided details of the attempted rape and executed a written statement, prepared by Davis, concerning the incident. Black Spotted Horse’s conversations with Davis and Jones in the grand jury room lasted about ninety minutes. At the conclusion of the interview and upon reading and signing the statement, Black Spotted Horse left the room and was then driven back to Rosebud later that same day. He was not arrested federally on the attempted rape charge until the latter part of April, 2000. DISCUSSION A. Voluntariness It is well-established that a defendant’s statement, to be admissible under the Fifth Amendment, must be voluntary, “that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 42 L.Ed. 568 (1897) (quoting 3 Russell, Crimes 478 (6th ed.)). The Supreme Court has observed that certain methods of gathering incriminating statements “are so offensive to a civilized system of justice that they must be condemned.” Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). The question presented here, as in any other case involving inculpatory statements made by a defendant, is whether law enforcement officials engaged in any coercive misconduct or overreaching, Colorado v. Connelly, 479 U.S. 157, 164-64, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); United States v. Rohrbach, 813 F.2d 142, 144 (8th Cir.), cert. denied, 482 U.S. 909, 107 S.Ct. 2490, 96 L.Ed.2d 381 (1987), such that the defendant’s statements were not freely self-determined, but rather the product of an overborne will, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). The test used to apply the constitutionally-based standard of voluntariness is whether “in light of the totality of the circumstances, pressures exerted upon the suspect have overborne his will.” United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.1989) (citing Haynes v. Washington, 373 U.S. 503, 513-14, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963)); see also; Winfrey v. Wyrick, 836 F.2d 406, 410 (8th Cir.1987), cert. denied, 488 U.S. 833, 109 S.Ct. 91, 102 L.Ed.2d 67 (1988). Two factors must be considered in the voluntariness inquiry: the conduct of law enforcement officers and the capacity of the suspect to resist pressure to confess. United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.1995); United States v. Makes Room For Them, 49 F.3d 410, 415 (8th Cir.1995). According to the Eighth Circuit, a reviewing court must utilize: [A] flexible totality of the circumstances approach, considering the specific interrogation tactics employed, the details of the interrogation and the characteristics of the accused. United States v. Wilson, 787 F.2d 375, 381 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986). The burden of proof on the issue of voluntariness is one of preponderance of the evidence. Connelly, 479 U.S. at 168-69, 107 S.Ct. 515; United States v. Wright, 706 F.2d 828, 830 (8th Cir.1983). To be admissible, the government must establish by a greater weight of the evidence that a defendant’s statements were voluntarily made. After reviewing the evidence of record and assessing the credibility of the witnesses who testified, the Court is unable to find that the requisite coercive or overreaching conduct was present on either September 20, 1999 or December 8, 1999 so as to make Black Spotted Horse’s incriminatory statements involuntary. At the outset, it should be pointed out that Black Spotted Horse was Mirandized prior to being questioned on September 20th and December 8th. Recently, the Supreme Court reaffirmed that “[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.” Dickerson v. United States, 530 U.S. —, 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405 (2000) (quoting Berkemer v. McCarty, 468 U.S. 420, 433, n. 20, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). That is not to say that compliance with Miranda conclusively establishes the voluntariness of a subsequent confession. See Berkemer, 468 U.S. at 433, n. 20, 104 S.Ct. 3138. Black Spotted Horse’s pre-interview Miranda advise-ments though, make it much more difficult for him to rebut the government’s assertion that his statements to Jones, Her Many Horses and Davis were voluntary. Significantly, throughout the entire course of the September 20th interview, Black Spotted Horse denied any criminal culpability. Although his story changed somewhat, he steadfastly maintained that he never tried to rape White Hat. The various interview techniques Jones used in an effort to obtain inculpatory admissions from Black Spotted Horse had little, if any, success and most certainly did not overbear his will. More importantly, even assuming that he was in custody at the time of both interviews , no threats or promises were made to Black Spotted Horse during the interviews and no undue influence or pressure was exerted on him. Contrary to Black Spotted Horse’s claim, Jones did not use any deceptive stratagems or coercive questioning tactics to extract statements from Black Spotted Horse. It was not improper to inform Black Spotted Horse that his polygraph test results indicated deception or to resume questioning given the adverse test results. Jenner v. Smith, 982 F.2d 329, 334 (8th Cir.), cert. denied, 510 U.S. 822, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993). It was likewise not impermissible to elicit further statements from Black Spotted Horse by questioning his denial of salient facts. Id. Numerous cases have held that questioning tactics such as deception, sympathy and other “suggestive” techniques will not render a defendant’s admissions involuntary unless the overall impact of the interrogation caused his will to be overborne. Jenner, 982 F.2d at 334 (citing cases); Makes Room For Them, 49 F.3d at 415. “[Tjhere is nothing inherently wrong with efforts to create a favorable climate for confession.” Jenner, 982 F.2d at 334 (quoting Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir.), cert. denied, 488 U.S. 900, 109 S.Ct. 247, 102 L.Ed.2d 236 (1988)). As the Supreme Court adeptly observed some time ago, “very few people give incriminating statements in the absence of official action of some kind.” Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). On this record, the Court is unable to find the requisite coercive activity and/or overreaching by law enforcement authorities. At no time did Black Spotted Horse express a desire to stop the interviews or to speak with an attorney. See Jorgensen, 871 F.2d at 730. The duration, tone and overall atmosphere of the interviews were not hostile or intimidating. Moreover, it appears, based on what Black Spotted Horse said and did during the interviews, that he was alert and very much in control of his faculties. See Jenner, 982 F.2d at 334. Black Spotted Horse has failed to demonstrate that Jones, Her Many Horses and Davis overwhelmed his will and “extorted” incriminating statements from him. Jenner, 982 F.2d at 334; Makes Room For Them, 49 F.3d at 415. The fact that the vast bulk of Black Spotted Horse’s inculpatory statements came immediately following the polygraph examination, without renewed Miranda warnings, is of little, if any, significance because the circumstances present, when considered in toto, plainly show that the statements were made voluntarily. Wyrick v. Fields, 459 U.S. 42, 47-49, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982); on remand, 706 F.2d 879, 880-82 (8th Cir.), cert. denied, 464 U.S. 1020, 104 S.Ct. 556, 78 L.Ed.2d 728 (1983); McDowell v. Leapley, 984 F.2d 232, 234 (8th Cir.1993); Jenner, 982 F.2d at 333-34; Vassar v. Solem, 763 F.2d 975, 977-78 (8th Cir.1985); United States v. Iron Thunder, 714 F.2d 765, 771-72 (8th Cir.1983); United States v. Jackson, 712 F.2d 1283, 1285-86 (8th Cir.1983); United States v. Eagle Elk, 711 F.2d 80, 81-83 (8th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984). As such, the admissions made by Black Spotted Horse to Jones, Her Many Horses and Davis were voluntary, and not the product of coercive interrogation or overreaching on their part. Id.; Kilgore, 58 F.3d at 353; Makes Room For Them, 49 F.3d at 415; Jorgensen, 871 F.2d at 729-30; Winfrey, 836 F.2d at 410-12; Rohr-bach, 813 F.2d at 144. Black Spotted Horse was advised of his rights on two separate occasions and voluntarily confessed. Because Jones, Her Many Horses and Davis took no action that could objectively be considered as coercion or overstepping their bounds, there is nothing to refute the voluntariness of Black Spotted Horse’s statements. The government has thus established, by a preponderance of the evidence, that Black Spotted Horse’s statements satisfy the voluntariness requirements of both the Constitution and 18 U.S.C. § 3501. B. Waiver Having determined that Black Spotted Horse’s statements to Jones, Her Many Horses and Davis were voluntary, the Court must next proceed to decide whether his waivers were valid based on “the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused,” North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (quoting Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)), when measured against applicable precedent.

22974-19682

CUDAHY, Circuit Judge. In a hearing on this petition for a writ of habeas corpus, the District Court for the Northern District of Illinois determined: that petitioner Brownstein had not made an express waiver, at his trial in Illinois courts, of his right to a jury; that the state appellate court had improperly found that he had expressly waived the right; that because there was no state determination of procedural default the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), did not apply; but that, nevertheless, since the plaintiff knew that the trial judge had failed to inform him of his right, and since he hoped to get a new trial on that ground if he lost on the first, federal relief would be inappropriate under the “deliberate bypass” standard of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). I. Ronald Brownstein is a state prisoner, serving a six-year prison term for a series of drug-related offenses. His convictions were affirmed in part and vacated in part by the Illinois Appellate Court. People v. Brownstein, 105 Ill.App.3d 459, 61 Ill.Dec. 352, 434 N.E.2d 505 (1982). The Illinois Supreme Court denied leave to appeal and Brownstein moved for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his sixth and fourteenth amendment right to jury trial was denied where the record failed to indicate that he had made a knowing and voluntary waiver of that right. After a number of false starts, due in large measure to what can most generously be described as confusion on the part of the prosecutors, the district court ordered an evidentiary hearing. The facts that follow emerged at that hearing. When Brownstein was brought to trial on May 28, 1980, the state trial court judge neglected to admonish Brownstein of his right to a jury trial. Brownstein, who testified at the habeas hearing that he had been fully aware of his right to a jury trial, inquired of his lawyers whether he ought not to ask for a jury; the judge seemed to him in a bad mood. His lawyers put him off: Q. And they basically ... answered by saying the judge made a mistake and you should say nothing because if you were convicted his mistake in not advising you about a jury trial would mean you would get a free trial? A. I don’t remember the exact words, but that is the way it worked out. He more or less told me, he said, let us see what happens. 594 F.Supp. 494, 498-99 (N.D.Ill.1984). After the state court judge found him guilty and sentenced him, Brownstein moved for a new trial on the grounds that he had never waived his sixth and fourteenth amendment right to a jury trial. The trial judge refused to convene a hearing on the issue, mistakenly finding that he had admonished Brownstein and received from him an express waiver of the right to jury trial. The Illinois Appellate Court, holding that the finding of express waiver was not against the manifest weight of the evidence, denied Brownstein relief on the sixth amendment point. Then began a procedural chase through federal and state courts, due largely to dubious representations on the part of the state’s attorneys about whether Brown-stein had exhausted his state remedies. See 594 F.Supp. at 496. The chase finally ended when the Northern District of Illinois granted Brownstein an evidentiary hearing. After finding the facts as we have described them (and finding in addition that no mention of a jury trial had been made in open court on the day of Brownstein’s trial), the district judge concluded that the finding of express waiver was not entitled to deference under 28 U.S.C. § 2254, since no hearing had ever been held in state court to determine whether the state trial judge had admonished Brownstein of his rights. He also concluded that in fact Brownstein had not been properly admonished of his rights. All of this presented the district judge with a dillemma. The state appellate court had not found procedural default (finding in fact that Brownstein had expressly waived his right to a jury trial); and, believing that Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), required deference to this state court finding, he felt that under the Sykes standard the constitutional issue of waiver of jury trial would have to be reached. At the same time, the plain fact — admitted forthrightly by Brownstein at the hearing — was that he knew full well of his right and planned, on his counsel’s advice, to use the judge’s omission to secure a new trial should he lose the first time around. Such behavior certainly ought to preclude habeas review of the constitutional points. The district judge resolved his dilemma by reaching back beyond Sykes to Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), wherein the Court had held that “deliberate bypass” would preclude habeas review. The district court reasoned: [0]nly a State can declare a state-level procedural default [such as is required by Sykes ]. If the State forgives a procedural default and proceeds to consider the merits of a constitutional claim, habeas corpus review normally is available____ There is no question here but that the Illinois Appellate Court considered the merits. That is not to say, however, that federal courts considering habeas corpus petitions cannot assert their own interest in orderly procedure. True enough, federal courts’ enforcement of their own interest in orderly procedure is much less pervasive in habeas corpus litigation since Wainwright v. Sykes ... announced federal courts would henceforth honor state findings of procedural default---[Sjince Sykes federal courts have relied to a much greater degree on state court determinations of the propriety of petitioners’ state procedural activities. Here there is no state court finding of procedural default entitled to deference under Sykes — there is only a finding Brownstein expressly waived his right to a jury trial. 594 F.Supp. at 500 (emphasis added). Thus, he concluded, under Sykes habeas review could not be denied. But application of the [Noia ] “deliberate by-pass” principle is not subsidiary to state courts’ determinations as Sykes’ “cause and prejudice” standard is. 594 F.Supp. at 501. Thus under Noia —though not under Sykes — he found that he had the discretion to deny the writ, and he did. In a footnote he suggested that this outcome established that Noia has, in fact, survived Sykes. While we feel that the denial of the writ is appropriate, the state has presented us with an interpretation of the district court opinion which we feel merits some discussion. II. In Fay v. Noia, the United States Supreme Court held that although procedural default in state court might be an adequate and independent state ground precluding direct review of a state decision in that Court itself, the same principles did not govern habeas review. Procedural default would not bar habeas review unless the “suitor’s conduct in relation to the matter at hand ... disentitle^] him to the relief he seeks.” 372 U.S. at 438, 83 S.Ct. at 848. In particular, “the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.” Id. Over the years the “deliberate by-pass” standard eroded, until finally in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Court held that where a petitioner had failed to comply with a Florida state procedural rule requiring that a motion to suppress evidence be made before trial, habeas review was barred if the petitioner could not show both that he had cause for the default and that he suffered actual prejudice thereby. The Court reasoned that the Noia standard might encourage “sandbagging;” and although the Court did not explicitly overrule Noia, it replaced the “deliberate by-pass” standard with the “cause and prejudice” standard in the context of state contemporaneous objection rules. 433 U.S. at 87-88, 97 S.Ct. at 2506-2507. In this circuit the “cause and prejudice” test was extended to state failure-to-appeal cases in United States ex rel. Spurlark v. Wolff, 699 F.2d 354, 361 (7th Cir.1983). The Supreme Court itself has read Sykes expansively; in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Court said that the considerations underlying Sykes supported the ruling that when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice. 456 U.S. at 129, 102 S.Ct. at 1572. The Court rejected a request to limit the holding to errors that did not affect the truth-finding function of the trial. Although Sykes is generally read as creating a higher hurdle for habeas litigants to get over than Noia did, creating in effect a rebuttable presumption that default would bar review where Noia had presumed that default would not bar review, the district court found that in the circumstances before us Noia bars review of a case that Sykes would allow. The court’s reasoning is that Sykes requires deference to state court determinations of default whereas Noia does not, and in this case the state court mistakenly did not declare a default. The district court is certainly right in thinking that, under Noia, federal courts can look beyond state court determinations of default. But so can we look beyond state court determinations under Sykes. In Sykes itself the federal courts did that very thing. The issue was whether habeas review would be available on the question of the admission of evidence in spite of the fact that the petitioner had forfeited the right to review of that issue in state courts. The Court found that the petitioner had forfeited his right of review in state courts, in spite of a state court holding to the contrary: In a subsequent state habeas action, the Florida District Court of Appeals, Second District, stated that the admissibility of the post arrest statements had been raised and decided on direct appeal____ The United States District Court in the present action explicitly found to the contrary, ... and [Sykes] does not challenge that finding. 433 U.S. at 75 n. 3, 97 S.Ct. at 2500 n. 3. The district court was incorrect in thinking that Sykes precludes our looking behind state court determinations concerning procedural default. Where the federal court is entitled to go behind the state court ruling, and finds that the state court was wrong and that there was procedural default, the federal court is required to deny the writ unless cause and prejudice are shown — a fortiori, to deny the writ where the default was strategic and deliberate. Where there has been a by-pass of a state procedural requirement, regardless of the state court determination, there is no need to go beyond Sykes to close the door of the federal court to the habeas litigant. III. The state has read the district court opinion as entailing that there has been a default in this case, but no one has made any effort to make clear to us just how the petitioner is supposed to have defaulted. If there has been a default, then, as the state argues and as we have shown above, there is no reason to go beyond Sykes to find reason to exclude the petitioner from the federal courts. If there has been no default, then Sykes is not applicable, and unless we can find ground in Noia for denying the writ, the merits of the petitioner’s claim will have to be reached. Because we agree with the district judge that Noia is broader than Sykes in at least this respect, allowing us to refuse relief even where there has been no procedural default, we think the district court was right in not reaching the merits. But we take this opportunity to make clear our impression that the state is mistaken in thinking that in these circumstances there has been a procedural default under Illinois law (a proposition for which the state offers no authority). What precedent we find on the matter seems to us to go the other way. Sykes does not apply, we believe, not because there was no state determination of procedural default, but because there was no procedural default in fact; and if Noia applies, it is not because of any deliberate by-pass of a procedural requirement, but because of strategic behavior which, under the equitable principles announced in Noia, allow a federal court to close off federal relief. A. If there has been a procedural default, then we believe the state is right, and the cause and prejudice standard applies; and if it applies, it applies in the case in which the default was inadvertent. That is the very meaning of Sykes: that a default need not be intentional to preclude review. Thus, as the state interprets the district court ruling, the petitioner who has done innocently what Brownstein did deliberately will have to show cause and prejudice to get habeas review. But that outcome is insupportable. Suppose that the circumstances had been the same except that Brownstein and his lawyer had merely neglected to raise the jury trial question at trial. Suppose that the state court of appeals, and all subsequent reviewing courts, relying on the word of the trial judge, had found that Brownstein expressly waived his right to a jury trial. Suppose further that the federal habeas judge was as conscientious as the federal judge in this case, and found that the determination of express waiver was incorrect. If Brownstein, under those circumstances, had defaulted procedurally, he would now have to show cause and prejudice to get federal habeas review; but since the jury trial issue had merely slipped his (and his attorney’s) mind, he would not be able to show cause. And therefore, on the theory that there has been a procedural default, he gets no review in those circumstances. B. But evidently there has been no default, in Illinois, in those circumstances. A procedural default cuts off further state remedies, and Illinois, in these circumstances, would not cut off review. In Illinois, the responsibility is on the trial judge to secure an express waiver in open court, People v. Clark, 30 Ill.2d 216, 195 N.E.2d 631, 634 (1964); People v. Jones, 93 Ill. App.3d 475, 417 N.E.2d 647, 651 (1981), and where none appears on the record, a new trial is in order, People v. Villareal, 114 Ill.App.3d 389, 70 Ill.Dec. 324, 327, 449 N.E.2d 198, 201 (1983). There seem to be no exceptions to this rule; lack of an express waiver — which can, however, be made by counsel, People v. Murrell, 60 Ill.2d 287, 326 N.E.2d 762, 764 (1975); People v. Spain, 91 Ill.App.3d 900, 47 Ill.Dec. 451, 455, 415 N.E.2d 456, 460 (1980); People v. Neeley, 79 Ill.App.3d 528, 35 Ill.Dec. 38, 41, 398 N.E.2d 988, 991 (1979) — is grounds for reversal. People v. Villareal, supra, at 202; People v. Rettig, 88 Ill.App.3d 888, 44 Ill.Dec. 7, 8, 410 N.E.2d 1099, 1100 (1980). Petitioner need not raise the issue at trial to preserve it, People v. Smith, 10 Ill.App.3d 61, 293 N.E.2d 465, 466 (1973); he need not even raise it in his post-trial motion, People v. Murff, 69 Ill. App.3d 560, 26 Ill.Dec. 90, 93, 387 N.E.2d 920, 923 (1979); it suffices that he raise it on appeal, and no actual prejudice need be shown, People v. Miller, 55 Ill.App.3d 1047, 13 Ill.Dec. 825, 827, 371 N.E.2d 917, 919 (1977). We therefore see no procedural requirement the neglect of which by Brownstein amounts to a default; and if Brownstein’s hands were clean in this matter, no cause and prejudice would be necessary to get him his writ. C. But if there has been no procedural default in this case, so that Sykes does not apply, does it follow that the merits of the petitioner’s claim must be reached? We think not. We interpret the district court’s reasoning differently from the way the state interprets it. As we understand what the district judge has to say about the matter, a “deliberate by-pass” in the Noia sense does not require a procedural default. As the district court said, the discretion granted by Noia was broader than that granted by Sykes. In our judgment, Noia goes beyond procedural defaults and allows federal judges to deny habeas relief whenever the petitioner’s strategic behavior clearly requires it. We caution that such cases, where Noia will apply though Sykes does not, will be rare; in this case the district judge had the benefit of the petitioner’s candid admission that his attorney had suggested using the trial judge’s mistake to their own advantage. Thus Noia apparently does survive Sykes, though not quite in the way the district court suggests. It is not that Noia allows us to go beyond state court determination of default; Sykes does that too. It is rather that Noia enables us to look beyond the state procedural rules themselves. For Noia premised its exception to federal jurisdiction on equitable considerations underlying the Great Writ of habeas, relying on the broad principle that “a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.” 372 U.S. at 438, 83 S.Ct. at 848. The discretion it grants is not limited to denials for deliberate by-pass of state procedure; that is but one example of the sort of strategic conduct that may disentitle a petitioner to his relief. Sykes, on the other hand, will not come into play with its cause and prejudice standard unless some procedural requirement has been by-passed, cutting off state remedies; in particular Sykes has no application to this case. But the deliberate by-pass standard of Noia, relying on general equitable principles, does not require the by-pass of a requirement; the passing by of a mere opportunity may be enough, and in this case is enough, to call that standard into play. IV. Here, the prisoner forwent, with the advice of counsel, “the privilege of seeking to vindicate his federal claim[] in state court.” Noia, 372 U.S. at 439, 83 S.Ct. at 849. Brownstein and his lawyers had decided for a bench trial. When it became apparent that the judge was not going to inform him of his option to take a jury trial, Brownstein or his lawyers could have requested one, had they chosen. Brownstein had faced a similar situation several months earlier; on that occasion, after being informed by the judge of his options Brownstein had opted for a bench trial. As the district court said: If Abrams [Brownstein’s counsel] had ... objected to the failure to offer a jury trial, Judge Close no doubt would promptly have given Brownstein the same speech he had given him a few months before. Brownstein and his counsel would then have had a brief opportunity to discuss their preferred course of action once again, but the consequences would have been precisely the same. Whatever factors led them to choose a bench trial originally (say the favorable verdict Brownstein obtained from Judge Close a few months earlier) were still present and led to their sticking with that decision. Had it been otherwise, Brownstein and his lawyers— both fully aware of the right to a jury trial, as Brownstein’s own forthright testimony confirms — would have opted to go that route instead. Thus nothing at all could have been gained by pointing out Judge Close’s oversight to him. On the other side of the ledger, counsel’s remaining silent gave them a double chance: they could wait for Judge Close’s verdict and pursue their objection at that time if Judge Close found Brown-stein guilty. Thus the decision not to object can only be described as a tactical one stemming from competent (though not necessarily forthright) representation.

9436425-9156

WOODLOCK, District Judge. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court observed that “[i]f a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened.” Id. at 484, 120 S.Ct. 2348. In order to guard against erroneous loss of liberty and imposition of stigma, the Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Apprendi has spawned a variety of challenges from defendants whose sentences have been affected by judicial factfinding against standards less demanding than proof beyond a reasonable doubt. We have, however, concluded that Apprendi “does not apply to guideline findings ... that increase the defendant’s sentence, but do not elevate the sentence to a point beyond the lowest applicable statutory maximum” that is subject to factfinding by a jury according to a reasonable doubt standard. United States v. Caba, 241 F.3d 98, 101 (1st Cir.2001). The sentence in this case was well below the lowest applicable statutory maximum but was in part created using judicial fact-finding regarding a statute which carried the potential for a ten-year increase in that maximum penalty. The defendant seeks to unbundle the joint concern recognized in Apprendi for loss of liberty and stigma by arguing that-while Caba concerns itself with guideline findings and loss of liberty-when factfinding under a statutory enhancement scheme is undertaken, separate consideration must be given to the resultant stigma. Absent a waiver of jury trial by plea of guilty to the specific statute, such stigma may only attach, he argues, when there is an opportunity for a jury to find the predicate facts beyond a reasonable doubt. We reject the defendant’s effort to deconstruct the teaching of Apprendi and thereby to limit the reach of Caba. I. Jack Wade Randall was indicted in June 2000 for obstructing correspondence in violation of 18 U.S.C. § 1702. The offense carried a maximum penalty of five years in prison. While he was on pre-trial release, he was charged in connection with an August 2000 drug conspiracy in violation of 21 U.S.C. § 846. The lowest maximum penalty for that offense was twenty years in prison. Randall pled guilty to both the mail obstruction and the drug conspiracy charges. When the draft presentence report proposed an increase in his base offense level by application of U.S.S.G. § 2J1.7, Randall objected, citing Apprendi. Section 2J1.7 directs such an increase when 18 U.S.C. § 3147 applies. In addition, § 3147 requires that a consecutive sentence be imposed&emdash;which could raise the maximum sentence by as much as ten years&emdash;if a defendant is found to have committed an offense while on pretrial release. At sentencing the district judge calculated the guideline range after including the three level U.S.S.G. § 2J1.7 enhancement. As a consequence, the combined adjusted offense level was 16. When Randall was assigned a criminal history category of IV, the resultant guideline range for imprisonment was 33 to 41 months and the guideline for a term of supervised release was determined to be not more than three years. Relying upon Caba, the District Judge rejected the defendant’s Apprendi objection and imposed a sentence of 41 months in prison, calculated as 35 months concurrent on the two underlying counts of conviction to be followed by a six-month consecutive sentence because of § 3147. A period of three years supervised release to be served concurrently on each of the underlying conviction counts was also imposed. II. Section 3147, entitled “Penalty for an offense committed while on release,” is designed to deter the commission of additional offenses by a defendant out on bail. It provides that A person convicted of an offense committed while released under this chapter [Chapter 207-Release and Detention Pending Judicial Proceedings] shall be sentenced, in addition to the sentence prescribed for the offense to- 1) a term of imprisonment of not more than ten years if the offense is a felony; A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment. 18 U.S.C. § 3147. The directives of § 3147 have been assimilated in the Sentencing Guidelines through U.S.S.G. § 2J1.7, which provides that “[i]f an enhancement under 18 U.S.C. § 3147 applies, add 3 levels to the offense level for the offense committed while on release as if this section were a specific offense characteristic contained in the offense guideline for the offense committed while on release.” The Sentencing Commission, in its Background Commentary to § 2J1.7, characterizes § 3147 as an enhancement provision “and not a count of conviction.” Application Note 2 directs that in order to comply with the statute, the sentencing court “should divide the sentence on the judgment form between the sentence attributable to the underlying offense and the sentence attributable to the enhancement” with a view toward ensuring that the “total punishment” is consistent with the guideline range for the underlying offenses of conviction. A. Did § 3147 Improperly Enhance the Sentence? The Sentencing Commission’s assimilation of § 3147 in U.S.S.G. § 2J1.7 effectively moots any Apprendi challenge to the application of § 3147. The Application Notes encourage sentencing judges to sentence within the guideline range for the base offense of conviction by using a § 3147 enhancement only for purposes of calibrating where, within the underlying conviction count guideline range, a sentence below the applicable conviction count maximum may be imposed. The district judge in this case carefully followed this protocol by imposing a total sentence within the guideline range constructed of concurrent sentences within the guideline range for the base offense level, enhanced — but still within the guideline range — by a consecutive term for § 3147. To be sure, there is factfinding being undertaken in this setting by the district judge, although here it is hardly disputed factfinding. The applicability of § 3147 is plain on the docket itself, which reflects the conviction for a drug crime committed while the defendant was on release on the mail obstruction charge. Indeed this fact-finding may fairly be characterized as literally within the express exception recognized in Apprendi for “the fact of a prior conviction.” 530 U.S. at 490, 120 S.Ct. 2348. See United States v. Moore, 286 F.3d 47, 50 (1st Cir.2002) (“we have ruled with a regularity bordering on the monotonous that ... the rationale of Apprendi does not apply to sentence-enhancement provisions based upon prior criminal convictions.”) In any event, such judicial factfinding involves precisely the kind of tailoring of a sentence within the lowest maximum sentence for the charge of conviction which this court has consistently found does not implicate the practical concerns of Apprendi. That the guideline calculations mirror a statutory enhancement provision does not set the sentencing in this case apart from other sentencing structures, for example where the guidelines take into consideration the drug weights — a matter which can affect the maximum sentence both by statute, 21 U.S.C. § 841(b)(1), and by guideline, U.S.S.G. § 2Dl.ll(d). There, also, judicial factfinding is employed against a preponderance standard; but, so long as the calculations result in a sentence below the lowest maximum sentence for which there was an opportunity for jury fact finding, Apprendi is not offended. See, e,g., United States v. Collazo-Aponte, 281 F.3d 320, 324-25 (1st Cir.2002); United States v. Lopez-Lopez, 282 F.3d 1, 22-23 (1st Cir.2002); United States v. Robinson, 241 F.3d 115, 119 (1st Cir.2001); United States v. Houle, 237 F.3d 71, 80 (1st Cir.2001). In short, as we observed in Cabo, “even after Apprendi, the existence vel non of sentencing factors that boost a defendant’s sentence but do not trip a new statutory maximum remain grist for the district judge’s mill under a preponderance-of-the-evidence standard.” 241 F.3d at 101. B. Did § 3147 Improperly Enhance the Stigma? The defendant’s argument that stigma is increased by a conviction to which § 3147 applies is an effort to isolate and emphasize an aspect of criminal sentencing which as a practical matter is reflected in the actual sentence itself. To be sure, a finding of culpability for separate crimes may be said to enhance the stigma arising from a conviction merely for one. Cf. Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) (second conviction “certainly carries the societal stigma accompanying any conviction.”); United States v. Rivera-Martinez, 931 F.2d 148, 152-53 (1st Cir.1991). But § 3147 is not a count of conviction, as the Background Commentary to U.S.S.G. § 2J1.7 observes.

4154678-26643

OPINION FRANCIS J. BOYLE, District Judge. This action was commenced by the Plaintiffs pursuant to 42 U.S.C. § 1983 (1974). Plaintiffs are Antone Lawrence, Jr. and Mary N. Lawrence, Co-Administrators of the Estate of Christopher Lawrence and residents of the Town of Little Compton, County of Newport, State of Rhode Island. Defendants are Eugene P. Petit, Jr., individually and in his capacity as Assistant Director of Transportation in the Division of Motor Vehicles of the State of Rhode Island, and Robert J. Connors, individually and in his capacity as Chief of Safety Responsibility in the Division of Motor Vehicles of the State of Rhode Island. Plaintiffs allege that Defendants’ denial of Plaintiffs’ request to participate in a third party’s financial responsibility hearing concerning an accident involving Plaintiffs’ deceased son is a denial of their right to due process of the law guaranteed to them by the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. § 1983. Plaintiffs seek temporary and permanent injunctive relief and compensatory and exemplary damages. On June 11, 1978, Plaintiffs’ minor son and two other persons were killed in an automobile accident, when the car in which they were riding collided with another motor vehicle operated by David Hudson at the intersection of Town Way and West Main Road in Little Compton, Rhode Island. After investigating this accident, the Division of Motor Vehicles [hereinafter Registry] notified Mr. Hudson pursuant to R.I. Gen.Laws §§ 31-31-5 and 31-31-9 that because of his lack of liability insurance coverage at the time of the accident, he would be required to post a financial responsibility bond in the amount of $50,100.00, and that failure to post such bond or request a hearing would result in the suspension of his operator’s license and its attendant privileges on February 28, 1979. On February 8, 1979, Mr. Hudson requested a hearing on the ground that there was no reasonable possibility that a judgment for damages would be rendered against him. By letter dated February 15, 1979, Defendant Connors scheduled the matter for hearing on August 16, 1979. The hearing did not occur due to the pendency of this action. After discovering from the Registry that Mr. Hudson did not carry liability insurance and that a hearing to determine whether a bond was required had been scheduled, Plaintiffs requested that the Registry allow Plaintiffs to be represented at the hearing, to present evidence, and to cross-examine Mr. Hudson’s witnesses. Defendant Connors denied Plaintiffs’ request by letter dated June 28, 1979, on the ground that the hearing was “only an administrative hearing’’ and not “a hearing as a court case.” Defendant Connors invited Plaintiffs to submit any pertinent information which they wished to be considered and to attend the hearing as observers. Some information was submitted by the Plaintiffs to the Registry in an effort to show that their participation should be allowed. On August 14, 1979, Plaintiffs instituted this action seeking injunctive and declaratory relief against the Defendants allowing Plaintiffs to intervene in Mr. Hudson’s hearing. Plaintiffs also seek compensatory and exemplary damages. The State of Rhode Island does not require the owner or operator of a motor vehicle upon the highways of the State to first obtain liability insurance. In the event of an accident which involves personal injury or property damage of $200 or more, where the owner of the vehicle involved did not have an automobile liability policy or bond in effect, the owner’s registration and the operator’s license are subject to suspension. Suspension of a license or registration may be avoided if security is furnished to be applied in settlement of damage claims or in satisfaction of any judgment rendered against the person required to make the deposit. Where there are multiple claims, every distribution of funds from security deposits “shall be subject to the limits of the registry’s evaluation on behalf of a claimant.” R.I.Gen.Laws § 31-31-20(b). Following an accident, the operator of an involved vehicle is required to file an accident report with the Division of Motor Vehicles within ten days. R.I.Gen.Laws § 31-26-6. Not less than twenty days after receipt of the report of an accident involving an uninsured motorist, the Registry “shall determine the amount of security which shall be sufficient in its judgment to satisfy any judgment or judgments for damages resulting . against each driver or owner.” R.I.Gen.Laws § 31-31-5(a). This determination does not depend upon a finding of negligence, Velletri v. Lussier, 88 R.I. 352, 148 A.2d 360 (1959), and the Registry is required to make this determination upon the basis of the reports or other information submitted. R.I.Gen.Laws § 31-31-5(b). The vitality of Velletri v. Lussier is a matter of some doubt in light of the opinions of the United States Supreme Court in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) and Jennings v. Mahoney, 404 U.S. 25, 92 S.Ct. 180, 30 L.Ed.2d 146 (1971). Indeed, since Bell v. Burson, it has been the practice of the Registry to provide an administrative hearing at which the uninsured motorist is heard on the issue of whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident. In Bell v. Burson, it was held that an uninsured motorist had a constitutional right to an inquiry, into fault or liability under the due process clause prior to the suspension of his license, that this due process requirement was satisfied by an inquiry to determine whether there is a reasonable possibility of judgments being rendered against the licensee, and that the inquiry need not take the form of a full adjudication of the question of liability. Jennings v. Mahoney held that a motorist had been afforded due process where the motorist was provided a judicial hearing at which he was afforded an opportunity to present evidence and cross-examine witnesses. However, the Supreme Court did not determine what essential elements were necessary to such a hearing, and merely stated, in accordance with Bell v. Burson, that the hearing to be provided must be “meaningful” and “appropriate to the case.” Jennings v. Mahoney, supra, at 26, 92 S.Ct. at 181. The Court has not further defined the incidents necessary to procedural due process in these circumstances. Cases involving suspensions for reasons involving the removal of “safety hazards” from the highway are to be distinguished from the nature of this inquiry, which involves only a determination of the amount of security, if any, required to satisfy any judgments against the licensee. See Dixon v. Love, 431 U.S. 105, 114-115, 97 S.Ct. 1723, 1728-1729, 52 L.Ed.2d 172 (1976). The Order to Deposit Surety mailed to the licensee involved in an accident contains a form for the request of a hearing which may be returned to the Registry by the licensee, and which contains a schedule of issues including the allegation that, “I can show clearly that there is no reasonable possibility that a judgment for damages may be rendered against me in any amount as a result of this accident.” When an issue is “checked off” by the licensee, a hearing is scheduled prior to requiring surety or license suspension. Thus, it appears that the Registry provides a licensee with a Bell v. Burson type of hearing. Although there are no rules or regulations provided for the above procedure, the parties do not press the lack of rules or regulations as an issue in this action. The issue in this action, however, is whether Bell v. Burson should be extended to provide an opportunity to be heard for third parties to a surety hearing. The Plaintiffs allege that although they will be allowed to attend the hearing and to submit information beforehand in the form of affidavits or copies of official records, they will not be permitted to participate either in the form of cross-examination or presentation of witnesses, and they are afforded no assurance the material they submit will be used. Plaintiffs argue that they have a property interest in any surety bond which is required of Mr. Hudson, because any judgments which they would obtain on either their claim for property damage to their automobile or on their claim for damages for the death of their son as Co-Administrators of his estate could be satisfied from this surety. This is a property interest, Plaintiffs argue, which would be denied without due process of the law unless they are allowed full participation in the licensee’s hearing to determine whether there is any reasonable possibility of judgment being rendered against him. Defendants argue that the hearing is administrative in nature and is not a judicial proceeding, and that Plaintiffs’ interest in the security is not a property right for the purposes of the due process clause of the Fourteenth Amendment. At the outset, it should be noted that Plaintiffs have some interest in the outcome of the security hearing and the allocation of any required security. The Rhode Island Supreme Court has held that the Financial Responsibility Act is constitutional under the due process clause as a valid exercise of the police power of the state to “protect the public using the highways from financial hardship resulting from the operation of motor vehicles by persons financially irresponsible . . .” Berbarian v. Lussier, 87 R.I. 226, 232, 139 A.2d 869, 872-73 (1958). Thus, Plaintiffs are within a class intended to be benefited by the Act. The security required for a single accident may not exceed $50,000 for personal injuries and $10,000 for property damage. In this matter, it appears that there are three separate claims for the wrongful death of three young men. Because the Rhode Island wrongful death statute seeks to compensate the survivors for the loss to the estate of the decedent, it is obvious that if there is fault on the part of the licensee, the total claims will more than likely exceed the maximum allowable security of $50,000. See R.I.Gen.Laws § 10-7-1, et seq.; Williams v. United States, 435 F.2d 804 (1st Cir. 1970). Under these circumstances, each claimant then has at least some interest in the deliberations of the Registry concerning whether and to what extent security should be required. Also, Plaintiffs have some interest in the allocation of any security ordered. One of the decedents was the operator of one of the vehicles involved, while the other two decedents were passengers. Therefore, the claims of the two deceased passengers might stand on different footing. In the determination of the amount of security required, the Registry has the responsibility to allocate the amount of security required among the several claimants. This allocation is of interest to each of the decedents’ representatives. The precise issues before this Court are whether the interests in the security before and after its posting are sufficient to be considered interests protected by the due process clause, and if so, the extent of the protection afforded by the due process clause. The considerations which effect a determination of the extent of recognition and requirements of due process are spelled out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In Mathews v. Eldridge, the Supreme Court stated at pages 334 and 335, 96 S.Ct. at page 903: More precisely, our decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. With this tripartite test in mind, we shall turn to a consideration of the issues presented by this action. THE PRIVATE INTEREST AFFECTED The private interest affected is the possibility of additional security to protect a citizen from loss arising out of the use of the highways by creating a fund from which, if provided, injured parties may satisfy judgments against uninsured motorists. The general public interest, however, is the suspension of licenses of uninsured motorists who do not post security after involvement in an accident. In this instance, Plaintiffs are included in a class of persons which the legislation is intended to benefit, and indeed, as previously indicated, that benefit is the basis for the exercise of the police power. The Plaintiffs’ situation is precisely the type of situation which the legislature intended to relieve. Plaintiffs have invoked their right under the state law to bring a wrongful death action in the Superior Court of the State of Rhode Island seeking a determination of the licensee’s liability and damages. In that action, they have no right to any security for the satisfaction of any damages they might be awarded, except such state process as may be available to enforce a judgment. Thus, the Financial Responsibility Act may possibly provide a fund from which Plaintiffs’ claim may be satisfied. However, an Order of the Registry requiring that the licensee furnish security does not guarantee to Plaintiffs that security will indeed be furnished. The licensee has the option to either furnish security or forego his license. The governmental benefit conferred by the statute is, therefore, a limited and qualified requirement for security. It is not a continuing benefit such as welfare payments or disability insurance. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Mathews v. Eldridge, supra. Neither is the benefit the same type of interest as a drivers license or an interest in continued employment. See Bell v. Burson, supra; Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). At best, Plaintiffs have the entitlement to a requirement that the licensee either furnish security or forego his license. The range of interests protected by procedural due process is not infinite. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Burns v. Sullivan, 619 F.2d 99 (1st Cir. 1980). In Board of Regents v. Roth, the Supreme Court stated, 408 U.S. at page 577, 92 S.Ct. at page 2709: To have [the] property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. Property interests, of course, 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. In Burns v. Sullivan, the Court of Appeals for the First Circuit held that a police officer had only an expectation and not a property interest in promotion to the rank of sergeant where his name had been placed on the eligibility list for promotions, but other subjective factors were taken into account in determining promotions. In that case, the court stated: Thus, while Burns may have had certain expectations as a result of his rank on the eligibility list any such expectations were substantially diminished by the ability under state law ... to consider subjective factors in addition to the written examination score. In light of the qualified nature of these expectations, we find that Burns’ interest in becoming a sergeant did not rise to the level of a property interest entitled to constitutional protection. Burns v. Sullivan, supra, at 104. Although the facts of that case are not identical to those of the instant case, the teaching is clear from Burns v. Sullivan that there are limits to the interests protected by procedural due process. Although, in this instance, the relief ultimately sought is the reimbursement to the decedent’s estate for the loss sustained due to alleged wrongful death, the statutory security may be required in other instances to reimburse a wide range of types of damages, including of course, lost wages and property damage. However, before an injured party obtains security, the licensee must furnish it. A licensee may refuse or fail to file security, and forego his license. The Plaintiffs argue, citing T. A. Moynahan Properties, Inc. v. Lancaster Village Cooperative, Inc., 496 F.2d 1114 (7th Cir. 1973), that this possible defeasance is of no consequence. In that case, however, the Plaintiff’s property management agreement was subject to cancellation by the government, a third party wholly outside the control of the adversaries concerned. In the present case, the frustration of the Plaintiffs’ expectation may be accomplished not only by the action of the licensee in refusing to furnish security, but also by the licensee lacking means to furnish security. The inability or deliberate failure of the licensee to furnish security is not a remote possibility considering first that one is probably an uninsured motorist due to the lack of means to obtain insurance. No doubt there are instances where there is a lack of insurance protection due to oversight, error, or independent financial means, but in the overwhelming majority of instances it is likely that the person ordered to furnish security is not financially able to do so. In this matter, there are three claims for wrongful death, and the amount of security ordered for personal injury is the $50,000 maximum. It is highly unlikely that there are many instances of an uninsured motorist capable of furnishing $50,000 security. Also, the record in this case demonstrates that the licensee does not presently have a valid license for other reasons. Thus, the statutory incentive of providing the ordered security to retain one’s license is ineffective, and it is unlikely that the licensee would provide the security in such circumstances. These factors demonstrate the fragile nature of the Plaintiffs’ expectations due to the strong probability that security will not be furnished. Lastly, it cannot be said that the sole purpose of the legislation is to benefit persons in the Plaintiffs’ situation. An obvious ancillary effect of the statute is to suspend the operating rights of a financially irresponsible operator for the protection of those who might be injured in the future. This purpose is evidenced by the statute’s correlative requirement that the right to operate a motor vehicle, once suspended, will not be reinstated unless the operator provides proof of future financial responsibility. R.I.Gen.Laws §§ 31-32 — 4 B and 31-32-5. Therefore, if Plaintiffs’ interest in security not yet provided can be considered an entitlement which should be accorded due process protection, the limited nature and quality of this interest and its tenuous existence suggest limited protection. Indeed, the ephemeral nature of the interest is such that it barely escapes classification as a unilateral expectation. Plaintiffs’ interest in security not yet provided, however, should be contrasted with the Plaintiffs’ interest in security which a licensee chooses to provide. If security is provided by the licensee, the Registry must satisfy any judgment obtained against the licensee by Plaintiffs with this fund. R.I. Gen.Laws § 31-31-20. Therefore, the Plaintiffs have some entitlement to security which is in fact provided. RISK OF ERRONEOUS DEPRIVATION Although there are no written rules or regulations, the Registry, after issuance of an order to furnish security or have one’s license suspended, stays its order upon the filing by the operator of a request for a hearing to show cause why security should not be furnished. At the hearing, the operator is permitted to show the lack of a reasonable possibility of a judgment being rendered against him. The proof in this action demonstrates that the Registry is limited in the matters it considers during the preliminary determination of whether a security order should issue. The only evidence considered was the accident report furnished by the licensee and the police report. Plaintiffs have established that there is substantial evidence which is not before the Registry and which might implicate the licensee at the hearing. This evidence includes incriminating photographs and additional police reports. The Registry will permit the Plaintiffs and their counsel to attend the show cause hearing, but will not permit them to participate. Evidence or other information may be furnished to the Registry, but there is no assurance that such evidence or other information will actually be considered. Additionally, the determination of the issues presented at a show cause hearing is made by three employees of the Registry, one of whom hears the testimony and argument and reports it to the others with a recommendation. These factors show that there is at least some risk of an erroneous determination by the Registry. On the other hand, the Registry has been given wide discretion by the General Assembly in dealing with security for uninsured motorists, and it must be assumed that the Registry has expertise in this area. The area of inquiry at these hearings is a narrow one, and concerns only whether there is a possibility of judgments being rendered against the uninsured motorist. The basic information which is needed for such a determination is already before the Registry in the form of required accident reports on behalf of all parties involved and police reports. The Registry holds 11,000 show cause hearings per year. Under all the circumstances, however, and keeping in mind that these procedures are not embodied in any formal rules or regulations, there is at least some risk of an erroneous determination at a show cause hearing, and the addition of further procedural safeguards would be of some value. Once security has been provided, the Registry may make distributions from the fund to satisfy any settlements or judgments obtained against the licensee. R.I.Gen. Laws §§ 31-31-20(a)(l) and (2). Any distribution to a claimant “shall be subject to the limits of the registry’s evaluation on behalf of a claimant.” R.I.Gen.Laws § 31-31-20(b). Thus, the Registry has plenary discretion with respect to the allocation and distribution of the security among the claimants who have a statutory interest in the provided security. Again it must be assumed the Registry has some expertise in this area. However, because there are no rules or regulations which govern the security’s distribution, and because claimants are not provided with any hearing to determine the extent of their interests in the provided security, there is a risk of erroneous determination, and procedural safeguards would be of distinct value. THE GOVERNMENT’S INTEREST The Financial Responsibility Act covers the accidents of all uninsured motorists from the fender-bender type of collision, with some minor exceptions, to the type of serious injuries involved in this action. Defendants point out that there are 30,000 accidents a year involving uninsured motorists, and 11,000 show cause hearings per year are conducted by the Registry. In this action, an adversarial hearing would involve not only the operator and the Registry, but would require the participation of four other parties, namely, the representatives of the three decedents and the owner of the other motor vehicle. It is obvious that if a full adversarial hearing were provided in all uninsured motorist cases, the burden of the Registry would increase dramatically. Under these circumstances, it is significant that the prerevocation hearing required by Bell v. Burson involves only a determination of reasonable possibility and “need not take the form of a full adjudication of the question of liability.” Bell v. Burson, supra, 402 U.S. at 540, 91 S.Ct. at 1590. In Bell v. Burson, the court stated, “While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process.” Id. at 540-541, 91 S.Ct. at 1590. In Mathews v. Eldridge, however, the court stated, “At some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost.” Mathews v. Eldridge, supra, 424 U.S. at 348, 96 S.Ct. at 909. The court further observed: All that is necessary is that the procedures be tailored, in light of the decision to be made, to ‘the capacities and circumstances of those who are to be heard,’ Goldberg v. Kelly, 397 U.S. [254] at 268-269, [90 S.Ct. 1011, at 1020-1021,] 25 L.Ed.2d 287 (footnote omitted), to insure that they are given a meaningful opportunity to present their case. Mathews v. Eldridge, supra, at 349, 96 S.Ct. at 909. Additionally, the confidence of the General Assembly in the fairness of the administration of these provisions, which is evidenced by the broad discretion afforded to the Registry in making decisions, is a relevant factor to be weighed in the determination of the requirements of a due process hearing. It is clear that the imposition of a full judicial type of hearing on the questioned administrative procedure would place heavy financial costs and administrative burdens upon the Registry. In sum, considering the tenuous nature of Plaintiffs’ expectancy under the statute, the fact that there is some possibility of an erroneous determination, and the serious burden which would be imposed upon the Registry should the full panoply of judicial due process be imposed upon the administrative process, it is obvious that something less than a full judicial due process is demanded of the administrative process, and, it is obvious that something less than a full judicial type of hearing will satisfy the need to protect the limited entitlement of the Plaintiffs in a determination of whether security should be required.

281395-23954

CHOY, Circuit Judge: Appellants were indicted on 18 counts for trafficking in heroin and cocaine and conspiring to do so. Two of the counts were for possession of narcotics with intent to distribute, based on the seizure of narcotics from the residence of two of the appellants. The other fourteen substantive counts were for twelve sales by various members of the conspiracy to a government undercover agent. These sales took place between March 5, 1971 and July 28, 1971. Two separate counts of conspiracy were charged. All six appellants were tried jointly by a jury and found guilty on all counts as charged. All six have filed timely appeals. We affirm as to all with directions and one of Ross’s $7,500 fines is stricken. We consider each appeal separately. LEON DUDLEY NOAH 1. Missing witness instruction. Noah asked that the court give an instruction to the effect that since the government did not produce a certain witness there is a presumption that her testimony would have been unfavorable to the government's case. The court refused to give the instruction and Noah appeals that ruling. The failure of a party to produce a material witness who could elucidate matters under investigation gives rise to a presumption that the testimony of that witness would be unfavorable to that party if ‘the witness is peculiarly within the party’s control. World Wide Automatic Archery, Inc. v. United States, 356 F.2d 834, 837 (9th Cir. 1966). Here the government did not call as a witness a paid informer who was instrumental in the government’s investigation. Noah asserted that the government entrapped him and the missing witness could have elucidated this aspect of the case. We do not think that the trial court erred in not giving the instruction. The record does not indicate that this witness was peculiarly within the power of the government. The issue of her availability was a question of fact for the trial court to decide. While the informer was at one time associated with the government, there was a break in the relationship. The witness left the state about three months before appellant’s indictment and five months before trial and no one knew of her whereabouts. She was equally unavailable to both Noah and the government. The instruction was properly rejected as not warranted by the facts of this case. United States v. Makekau, 429 F.2d 1403 (9th Cir.), cert.. denied 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 (1970). 2. Entrapment instructions. Noah claims that the court erred by instructing the jury that the defense of entrapment is applicable only when a person has no previous intent or purpose to violate the law and has a readiness and willingness to break the law. Noah maintains that since he was a drug addict he should be entitled to a special entrapment instruction. The law is clear that if a predisposition to break the law exists before the government makes any offer, the entrapment defense does not apply. United States v. Griffin, 434 F.2d 978 (9th Cir. 1970), cert. denied 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971). 3. Dismissal of part of the indictment. Noah contends that his Fifth Amendment rights were violated when the court, pursuant to F.R.Crim.P. 48(a) dismissed five substantive counts from the indictment. Noah claims that by eliminating the substantive counts the theory of the original indictment was changed without the indictment being resubmitted to the grand jury. We see no merit in Noah’s contention. He was in no way prejudiced by the elimination of part of the indictment. An indictment may not be broadened except by the grand jury. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Here the indictment was not expanded, but consolidated and some of the charges were eliminated. There is no Fifth Amendment prohibition against this. 4. Prejudicial publicity. The day after the prosecution rested, a newspaper article appeared in a local paper. The headline read, “Dope Case Witness Refuses to Testify.” The article referred to a government witness who the government claimed was too sick to testify. The court asked the jurors whether any of them had either read the article or seen the headline. Only one juror admitted that he had read the headline. This juror was examined at length to determine if he had been influenced by the article. The court decided that the juror could still remain fair and impartial. During the examination, however, this juror said that probably half a dozen other jurors also saw the headline. The defense was given an opportunity to question the other jurors, but declined to do so and moved for a mistrial instead. That motion was denied. We affirm the ruling. “The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Holt v. United States, 218 U.S. 245, 251 [, 31 S.Ct. 2, 6, 54 L.Ed. 1021], Generalizations beyond that statement are not profitable, because each case must turn on its special facts.” Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959). Here, all that was established was that one juror admitted reading the headline and he thought that others had also seen the headline. The headline itself was not prejudicial. It simply stated that a witness had refused to testify. The jury was already aware that the witness had not appeared after she was called as a witness. While the article itself was potentially prejudicial, there is no evidence that anyone read it. The defense was given an opportunity to question the jury. Unless we assume that each juror purposely lied to the court, we cannot find that the publicity prejudiced the jury against the appellants. The burden to show that a defendant had been unfairly treated is on the defendant. Marshall v. United States, 355 F.2d 999, 1007 (9th Cir.), cert. denied 385 U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54 (1966). Here that burden has not been met. 5. Habeas corpus petition. Pending this appeal, Noah filed a motion for a writ of habeas corpus. He contends that the method used to select the jury violated the Fifth and Sixth Amendments. Noah notes that of the approximately 200 odd veniremen only two were non-whites and that nonwhites constitute 5.9% of the population of the Western District of Washington. Since an appellate proceeding is pending, we have the power to issue a writ of habeas corpus. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). But Noah has failed to sustain the burden of proof of showing a systematic exclusion of non-whites. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); United States v. Parker, 428 F.2d 488 (9th Cir.), cert. denied 400 U.S. 910, 91 S.Ct. 155, 27 L.Ed.2d 150 (1970). “The use of voter registration lists as the sole source of the names of potential jurors is not constitutionally invalid, absent a showing of discrimination in the compiling of such voter registration lists.” Parker, supra at 489. Noah concedes that there was no conscious effort to exclude non-whites, but he argues that discrimination is inherent in the use of voter lists. Noah, however, has failed to present sufficient evidence to prove that there is in fact a sufficiently large under-representation of non-whites. Bloomer v. United States, 409 F.2d 869 (9th Cir. 1969). The motion for a writ of habeas corpus is denied. EICHAED STUAET 1. Improper counts. Stuart contends that one of his two conspiracy convictions should be reversed. The indictment contained two conspiracy counts. The first one charged a conspiracy to violate 21 U.S.C. § 174 between March 1, 1971 and April 30, 1971; the second charged conspiracy to violate 21 U.S.C. § 841(a) between May 1, 1971 and July 28, 1971. Two conspiracy counts were charged because of the conspiracy statutes themselves although there was but one continuing conspiracy. On May 1, 1971, a new statute, the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-966, took effect, replacing other federal narcotics laws. For activities preceding May 1, appellant was charged under the old statute, and for activities after May 1, he was charged with conspiring under the new statute. Presenting evidence of violations of different statutes does mot create separate conspiracies out of one conspiracy. The gist of the crime of conspiracy is an agreement to commit unlawful acts. “The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.” Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1942). No evidence was advanced at the trial to suggest that the defendant and his co-conspirators formed a new agreement, made new plans, or developed a new purpose after the new federal law went into effect. Since there was only one agreement there could be only one conspiracy conviction. Therefore, we vacate Stuart’s conviction of the first count and order that it be dismissed. Even though we vacate one of the conspiracy convictions, this does not alter Stuart’s sentence. Stuart received a thirty-year sentence on the first conspiracy count and a fifteen-year sentence on the second conspiracy count. In addition, he received five other thirty-year sentences and five other fifteen-year sentences for participating in ten illegal narcotics sales. All of the sentences are concurrent. We can say with fair assurance that the improper conspiracy conviction did not in any way influence the other convictions. Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). There was clear evidence that Stuart had participated in several sales. Stuart also maintains that two of the substantive convictions were improper. He contends that it was improper to charge a separate count for the sale of heroin and cocaine. We need not reach the merits of this issue because even if we reversed these two convictions, the validity of the other concurrent sentences would not be affected. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); United States v. Munns, 457 F.2d 271, 274 (9th Cir. 1972). 2. Improperly admitted evidence. Stuart contends that he should be acquitted on all counts because the government failed to prove that the heroin tested by its chemists was the same substance sold to the government. This contention has no merit. First, no objection was made at the time the evidence was admitted. On this fact alone we could affirm. Scott v. United States, 115 U.S.App.D.C. 208, 317 F.2d 908 (1963). Second, ample evidence was adduced during the trial to enable the jury to conclude that the narcotics purchased from Stuart were the same as the exhibits admitted into evidence. Barquera v. California, 374 F.2d 177 (9th Cir. 1967); United States v. Baca, 444 F.2d 1292 (10th Cir.), cert. denied 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971). 3. Entrapment instructions. Stuart maintains that the court’s instructions on entrapment were erroneous because they were ambiguous and they did not clearly explain who had the burden of proof. If the instructions were vague or ambiguous that would be grounds for reversal. Notaro v. United States, 363 F.2d 169 (9th Cir. 1966). But the instructions in the case at bar were not defective. In United States v. Griffin, 434 F.2d 978, 981 (9th Cir. 1970), cert. denied 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971), we approved exactly the same instructions. WILLIE WILLINGHAM and ABRAHAM GRIFFIN 1. Conspiracy conviction. Willingham and Griffin contend that their convictions for conspiring with Ross and Stuart after May 1 must be reversed because there was no evidence that two conspiracies existed. Griffin also contends that there was insufficient evidence to support his conviction. Willingham and Griffin were named in but one conspiracy count, unlike Stuart and Ross. The government concedes that the evidence showed only one pattern of conspiratorial activity by the appellants from March through July 1971, but because of the changes in the law they elected to prosecute Willingham and Griffin under the new law. The evidence of their participation in the conspiracy surfaced after the change in the law. They were indicted and convicted on only one conspiracy charge. Under these circumstances, and in light of the fact that the penalties under the new statute are smaller, we see nothing improper or prejudicial to them in the government’s separation of the illegal activities. We also affirm Griffin’s conspiracy conviction. On appeal the evidence is viewed in the light most favor able to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Magana, 453 F.2d 414 (9th Cir. 1972). While there was no evidence that Griffin directly participated in any of the illegal sales, there was sufficient evidence to sustain a finding by the jury that Griffin was a member of the conspiracy. Griffin’s home was used as a stash for the drugs and the site where the drugs were cut into retail quantities. Moreover, when Griffin was arrested 16 balloons of heroin were discovered in his bedroom. Paraphernalia for both diluting and packaging heroin was found in various common areas of the house. The jury rejected Griffin’s defense that he was a mere bystander. Testimonial evidence also supports the conviction. United States v. Stanley, 427 F.2d 1066, 1070 (9th Cir. 1970), cert. denied 404 U.S. 996, 92 S.Ct. 542, 30 L.Ed.2d 548 (1971). VIRGIL METCALF 1. Challenge to the jury. Metcalf contends that the Jury Selection Plan for the Western District of Washington adopted pursuant to the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1871 does not comply with the policies set forth in sections 1861-1863. We do not reach the merits of this objection because Metcalf failed to make a timely challenge as required by 28 U.S.C. § 1867. 2. Fifth amendment privilege. During his closing argument, the prosecutor commented: “In my opinion what has happened is that the defense has collapsed, because of all the six defendants before you not one of them has brought one witness in to deny that anything that we have alleged happened in terms of the substantive sales that we have told you about. Mr. Noah brought in no witnesses to deny that he participated in the sales. Mr. Stuart brought in no witnesses to deny that he participated in the sales.” At this point the court interrupted the prosecutor and admonished the jury that the burden of proof was on the prosecution to establish guilt, not on the defendants to prove innocence, and that the defendants had no burden to prove anything. Later the court instructed the jury that the prosecutor’s comments were improper and they should not be considered. Metcalf contends that the prosecutor’s comments infringed his Fifth Amendment privilege and violated the doctrine of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and that neither the court’s admonition nor the later instruction rendered the error harmless. The comments in this case are quite different from a specific comment on the defendant’s failure to take the stand. “[W]here the prosecutor confines himself to arguing the strength of his case by stressing the credibility and lack of contradiction of his witnesses, we will not be astute to find in this a veiled comment on the defendant’s failure to testify even if in practical fact, although not in theory, no one else could controvert them.” United States ex rel. Leak v. Follette, 418 F.2d 1266, 1270 (2nd Cir. 1969), cert. denied 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970); accord, United States v. Lepiscopo, 458 F.2d 977 (10th Cir. 1972). Here the disputed comments were specifically directed to the lack of contradictory witnesses and contained no explicit reference to the failure of the appellants to testify. We do not think that it focused attention on their failure to testify. The trial judge understood the comment to be directed at the weight of the evidence because in his correction he instructed the jury as to the burden of proof, not the Fifth Amendment rights of the appellants. Even if we found the comment impermissible, it was harmless error. The comment by the prosecutor was brief, composed of only three sentences. The silence of the appellants was not mentioned to the jury. The trial judge immediately interrupted and properly instructed the jury as to the burden of proof. Any impropriety was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). HUMPHREY ROSS I. Insufficiency of the evidence. On appeal the evidence is viewed in the light most favorable to the government. Glasser, supra; Magana, supra. Ample evidence sustains Ross’s conviction. Although Ross never directly sold any narcotics, there was sufficient evidence that he actively assisted in the completion of two illegal sales. Ross drove Stuart to the place where the sales were completed and there was evidence that Ross supplied Stuart with the heroin used in the sales. 2. Denial of the motion for severance. Ross moved for a separate trial pursuant to Rule 14, F.R.Crim.P., on the ground that if tried with his co-defendants he would be denied supposedly exculpatory testimony from two of them. The trial judge ruled that Ross failed to show the prejudice required by Rule 14 for a severance. The ruling will not be reversed absent a clear abuse of discretion. United States v. Figueroa-Paz, 468 F.2d 1055 (9th Cir. 1972); Daut v. United States, 405 F.2d 312, 314 (9th Cir. 1968), cert. denied 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114 (1971). Ross made no affirmative showing that the two co-defendants would be willing to testify for him in a separate trial. When there has been an insufficient showing that a co-defendant would actually testify at a severed trial, the district court has not abused its discretion by refusing to grant a motion to sever. United States v. Thomas, 453 F.2d 141 (9th Cir. 1971), cert. denied 405 U.S. 975, 92 S.Ct. 1195, 31 L.Ed.2d 249 (1972); Fields v. United States, 408 F.2d 885 (5th Cir. 1969). Ross also asserts that his defense was prejudiced by his joinder with others who had sold narcotics directly to government agents. The burden of proving prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review. United States v. DeSapio, 435 F.2d 272, 280 (2nd Cir. 1970), cert. denied 402 U.S. 999, 91 S.Ct. 2170, 29 L.Ed.2d 166 (1971). Again, we find no abuse of discretion. 3. Prejudicial publicity. This argument has already been considered and rejected. See part 4 of the Noah opinion, supra. 4. Fifth amendment privilege. This argument has already been considered and rejected. See part 2 of the Metcalf opinion, supra. 5. Instructions. Ross asserts that the court erred when it refused to give the jury his requested instruction on conspiracy. There is no requirement that any specific instruction must be accepted. It is, however, reversible error not to instruct as to defendants’ theory of the case if the record contains evidentiary support for the theory and the theory is supported by law. Perkins v. United States, 315 F.2d 120, 124 (9th Cir.), cert. denied 375 U.S. 916, 84 S.Ct. 201, 11 L.Ed.2d 155 (1963). Ross contends that the instructions given failed to allow for the possibility that Ross might be acquainted with the members of the conspiracy and still not be a co-conspirator because he had no financial stake in the success of the conspiracy. Ross is incorrect in his assumption that each conspirator must have a financial stake in the venture. All that is required is that he not be indifferent to its outcome. United States v. McKnight, 253 F.2d 817 (2nd Cir. 1958). The instructions actually given state that the defendant must have willfully participated with the intent to advance some object of the conspiracy, and that mere similarity of conduct or association does not establish a conspiracy. These instructions adequately presented defendant’s theory of the case. 6. Peremptory challenge. During the selection of the jury the government excused the only black member of the jury panel. Ross, a black, contends that this prejudiced his case. Since there is no evidence of any purposeful discrimination, there is no basis for Ross’s objection. Swain, supra 380 U.S. at 221, 85 S.Ct. 824. A criminal defendant has no constitutional right to a proportionate number of his race or ethnic group on the jury that tries him. United States v. Gonzalez, 456 F.2d 1067, 1068 (9th Cir. 1972). 7. Conspiracy conviction. Ross does not raise this issue, but we note that like Stuart he was also convicted on two conspiracy convictions. As in Stuart’s case we vacate the conviction on the first conspiracy count and order that it be dismissed. Like Stuart this does not affect Ross’s sentence since he also received other similar concurrent sentences. These other convictions are not tainted by the improper conspiracy conviction. However, in addition to receiving terms of imprisonment, Ross was also fined $7,500 for each of his four convictions. Since one of the convictions is invalid, one $7,500 fine is dismissed. The judgments of conviction, and sentences of all appellants are affirmed, except that the convictions of Stuart and Ross on the first conspiracy count for violation of 21 U.S.C. § 841(a) are vacated and ordered dismissed, and one of the $7,500 fines levied on Ross is stricken. . The original indictment filed on July 2S, 1971 contained 26 counts. A trial was conducted, but because of the prejudicial testimony of a government witness a mistrial was declared. The case was consolidated and 8 substantive counts were dropped by the government before the commencement of the second trial. . Two of the sales involved both heroin and cocaine and for these sales there are four instead of two counts. All of the other sales involved only heroin. . Two conspiracies were charged instead of one because pending the investigation a new federal narcotics statute went into effect. . We note that there is an additional aspect to the problem of the witness’s unavailability. The government helped her leave the jurisdiction since they provided her with a train ticket. The government should not cause a prospective witness to leave the jurisdiction so that he would not be available to testify. In this ease, however, we find nothing improper since there was no evidence of such sinister motivation on the part of the government. The witness departed five months before the trial (three months before the end of the investigation) and it appears that the witness herself wanted to leave so that she could start a new life in another city. . We also note that the defense of entrapment is not available to either Noah or Stuart. The rule in this circuit requires that the defendant admit the criminal act before he can successfully assert that he was entrapped. United States v. Azadian, 436 F.2d 81, 83 (9th Cir. 1971). Although this rule has been criticized, it is still the law in this circuit. Moreover, the instant case does not present such an intolerable degree of government participation in the criminal enterprise, to come within the limited exception to the prevailing rule. See United States v. Granger, 475 F.2d 1022 (9th Cir. 1973). . The gist of the article was that the witness had refused to testify not because she was sick but because she was afraid she would be harmed if she did testify. . In the light of our disposition of the case we need not reach this issue, but we uphold the least severe of the convictions. Brown v. United States, 112 U.S.App.D.C. 57, 299 F.2d 438, 440 (1962). . See note 5, supra.

1138241-13171

CHRISTENSEN, Judge. This is an appeal by plaintiff-appellant Pennzoil Exploration and Production Company (“Pennzoil”) from summary judgment of the United States District Court for the Eastern District of Louisiana upholding an assessment of royalty by the Department of Interior (“DOI”) on an offshore mining lease as against Pennzoil’s contention that a Department of Energy (DOE) incentive program under the Emergency Petroleum ' Allocation Act operated to reduce the amount of that royalty. Agreeing with the district court’s ruling “that the DOE incentive program [did not] implicitly overrule the DOI regulation [and that] general policy considerations ... are not sufficiently compelling to overrule the Secretary of the Interior’s explicit statutory authority to determine the value of production for royalty purposes,” Pennzoil Exploration & Prod. Co. v. Lujan, 751 F.Supp. 602, 606 (E.D.La.1990), and being of the view that the sole contested issue decided below was one over which this Court has exclusive appellate jurisdiction, we affirm. The DOI through its Minerals Management Service leases mineral rights on the outer continental shelf pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. Lessees are to be assessed royalty based on the “value of the production saved, removed, or sold” from the lease. 43 U.S.C. § 1337(a)(1)(A). The minimum value for royalty purposes is interpreted by the DOI as not less than the “gross proceeds accruing to the lessee from the disposition of the produced substances.” 30 C.F.R. § 250.64 (1979), later redesignated as 30 C.F.R. § 206.150, with modifications thereafter not affecting this minimum royalty value based on gross proceeds. By its complaint in the district court, Pennzoil challenged the DOI’s interpretation of these provisions because the royalty administratively determined to be due on its lease on the basis of gross proceeds had been enhanced by production sales at unregulated prices authorized in lieu of regulated prices by the Tertiary Incentive Program (“TIP”) administered by the Department of Energy (“DOE”) pursuant to the Emergency Petroleum Allocation Act, 15 U.S.C. § 751 et seq. (1973), as amended by the Energy Conservation and Production Act, 42 U.S.C. § 6801 et seq. (1976) (hereinafter collectively referred to as “EPAA” unless otherwise indicated) and by 10 C.F.R. § 212.78. Calculating “gross pro ceeds” of production sales on the basis of the unregulated prices actually received by Pennzoil during the period in question, as was done by the DOI, increased the royalty assessed against Pennzoil by the $159,-602.94 in dispute here. The appellees insist that this Court has no jurisdiction because allegedly the district court neither had before it nor decided any issue arising under the EPAA. Our jurisdiction, of course, is limited to appeals in cases and controversies arising under the EPAA or regulations or orders issued thereunder. Economic Stabilization Act of 1970, 12 U.S.C. § 1904 note, as incorporated in section 5(a)(1) of the EPAA, 15 U.S.C. § 754(a)(1). The only issue the district court adjudicated, appellees argue, was the scope of the statutory authority of the Secretary of the Interior to calculate royalty payments due on federal oil leases on the basis of its “gross proceeds” rule, and the DOI’s decision to include revenue based on the full price actually received under the TIP was no more than an application of that DOI rule. They dismiss as mere “dicta” the district court’s denial of weight to Pennzoil’s claim that the TIP regulations promulgated by the DOE implicitly overruled the Secretary of the Interior’s implementation of his regulations governing the determination of the value of oil for royalty purposes, stating: Clearly, then, to the extent that the district court addressed the applicability of the tertiary incentive program, it was not adjudicating an issue under the EPAA, but was considering whether the ability of the Secretary of the Interior to administer the federal oil and gas leasing program could be affected by regulations issued by the Secretary of Energy. Appellees’ brief at 14. Appellant Pennzoil responds that its claim plainly arises under a regulation promulgated pursuant to the EPAA, viz. the TIP; that its right to relief stems from the mandate implicit in that program that only qualified producers are entitled to tertiary incentive revenue, and that the TIP' takes precedence over attempts by the DOI to interpret its regulations to permit the sharing of the TIP proceeds under the guise of “royalty.” The Temporary Emergency Court of Appeals of course is a court of special and limited jurisdiction, MGPC, Inc. v. Department of Energy, 673 F.2d 1277, 1280 (Em.App.1982). In determining whether it has .jurisdiction we have articulated two principal inquiries: whether resolution of the litigation requires the application or interpretation of the EPAA or its regulations and whether any EPAA issue presented to this Court has been adjudicated in the court below. Francis Oil and Gas, Inc. v. Exxon, 687 F.2d 484, 487 (Em.App.) cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982); Texaco, Inc. v. Department of Energy, 616 F.2d 1193, 1198 (Em.App.1979). See also Coastal States Marketing, Inc. v. New England Petroleum Corp., 604 F.2d 179, 184-87 (2nd Cir.1979). When an appeal involves issues only part of which arise under , the EPAA, this Court will decide only those arising under the EPAA, Sector Refining, Inc. v. Enterprise Refining Co., 771 F.2d 496, 502 (Em.App.1985); Texaco, 616 F.2d at 1198; see also Atlantic Richfield Co. v. U.S. Dept. of Energy, 769 F.2d 771, 778 (D.C.Cir.1984), unless a meaningful ruling requires consid eration of the issues as a whole, Citronelle-Mobile, Etc. v. Gulf Oil Corp., 591 F.2d 711, 716 (Em.App.), cert. denied, 444 U.S. 879, 100 S.Ct. 168, 62 L.Ed.2d 109 (1979), the construction of the EPAA will control - the litigation, M. Spiegel & Sons Oil Corp. v. B.P. Oil Corp., 531 F.2d 669, 670-71 (2d Cir.1976); see also Francis Oil, 687 F.2d at 487, the issues are so commin gled as to render separate treatment impractical, Rainey v. Union Oil Co. of California, 732 F.2d 1563, 1564 n. 1 (Em.App.1984), or the non-EPAA issues are subsidiary, preliminary or threshold to an EPAA issue, MGPC, 673 F.2d at 1281; Quincy Oil, Inc. v. Federal Energy Administration, 620 F.2d 890, 893 (Em.App.1980); see also Atlantic Richfield, 769 F.2d at 779. When discrete EPAA and non-EPAA issues otherwise are involved on appeal, review must be bifurcated between the TECA and the United States Court of Appeals, Sector Refining, 771 F.2d at 502; Associated General Contractors v. Laborers International Union, 476 F.2d 1388 (Em.App.1973); see also 489 F.2d 749; Atlantic Richfield, 769 F.2d at 778. From the beginning an EPAA issue has been central in this case; indeed there has been no other issue at all in dispute. Pennzoil has never questioned the DOI’s interpretation of its gross proceeds rule or the royalty which Pennzoil was assessed except for its assertion of the controlling effect of the TIP regulations and the policy implicit therein. It seems unnecessary to further explore the spectrum of our decisions on jurisdiction over the years beyond noticing that this case falls at its most fundamental beginning. Unless their generally utilitarian view of our limited jurisdiction is to be frittered away at this late date and the basis of numerous prior decisions recanted, it must of necessity extend to an EPAA claim constituting the sole contested issue presented to the district court and decided by it. This will be made clear by a review of the administrative proceedings and the complaint and proceedings before the district court, as well as by the arguments before this court during which counsel for Pennzoil reiterated that except for the claimed impact of the DOE’s TIP it questioned neither the amount nor validity of the DOI’s royalty assessment. Paraphrasing a statement of Justice O’Connor in a recent decision of different context, it fairly may be said that the appellees’ argument that the EPAA claim is irrelevant to the district court’s decision because all that is at issue is the DOI royalty regulation misses the point, which is that without Pennzoil’s EPAA claim as adjudicated by the district court there simply is no cause of action (and likely not even a case or controversy). In the administrative proceedings, Pennzoil premised its contention upon the elimination from the “value” on which its royalty payment was to be computed its “bonus” or “recoupment of allowed expenses” to which it was entitled from being permitted to charge the higher market price rather than the regulated price for oil covered by the TIP. The acting director of Minerals Management Service squarely addressed that contention and rejected it. In the final decision of the administrative law judge, this rejection of Pennzoil’s position was affirmed: Gross proceeds looks to the actual consideration received from the oil produced from the lease____ In this case that included Pennzoil’s tertiary incentive rev-enue____ DOE’s interpretation of 10 CFR 212.78 cannot negate the basis established by the Department of the Interior in 30 CFR 250.64 for determining the value of production any more than a lessee can by declaring what the price of the resource is [citation omitted], IBLA 84-816, Pennzoil Oil and Gas, Inc., June 8, 1989, I Administrative Record, Tab 13, at 147-159. Pennzoil’s complaint in the district court appropriately claimed jurisdiction under the EPAA and stated: Pennzoil, during the months of August 1980 through January 1981, [the only period for which the amount of royalty is in question in this case] obtained tertiary incentive revenue equal to the difference between the regulated price and the deregulated price for oil produced from lease OCS-G 2115 attributable to its working interest. Pennzoil used this tertiary incentive revenue to recoup the “allowed expenses” of its tertiary enhanced recovery project on another oil producing property [and] ... sold the oil attributable to the lessor’s royalty interest produced from lease OCS-G 2115 at the then current regulated prices and paid its royalty based upon the regulated price. Plaintiff’s complaint 20-21, supplemental appendix 7. Pennzoil expressly rested its claim in the district court upon the contention that: [T]he DOI does not have authority to impose royalties based on gross proceeds to the extent that those gross proceeds include tertiary incentive revenue; ... [t]he decision is contrary to the regulations and interpretations issued by the DOE regarding the tertiary incentive crude oil program that is set forth in 10 C.F.R. § 212.78 (1981); ... [t]he decision frustrates and is contrary to the congressional purpose espoused in the Emergency Petroleum Allocation Act of 1973, as amended, to create an incentive for investment in enhanced oil recovery projects by producers; ... Id. at 9-10. In its memorandum decision the district court, after interpreting in accordance with the view of the DOI the gross proceeds rule which Pennzoil did not question apart from the EPAA issue it had raised, turned decisively to the latter issue: As for Plaintiff’s argument that the DOE incentive program should implictly overrule the DOI regulation, the court finds that there is no legal basis for such a holding. Pennzoil’s position is based mainly upon general policy considerations, and the court finds that these considerations are not sufficiently compelling to overrule the Secretary of the Interior’s implicit statutory authority to determine the value of production for royalty purposes. We agree with Pennzoil that its claim arose under regulations promulgated pursuant to the EPAA and that its right, if any, to relief stemmed from the alleged mandate of the TIP. But we also agree with the district court’s rejection of that claim as insufficient in law to preclude the application and enforcement of the DOI’s gross proceeds rule as interpreted by the district court and except for its EPAA claim otherwise conceded by Pennzoil. Our jurisdiction to decide the issue of this case does not depend upon which way it is decided, the depth or effectiveness of the trial court’s analysis, if any, or whether the EPAA claim is overwhelming, substantial, unpersuasive or even frivolous. Nor does it depend for a foundation upon a statute other than the EPAA. Appellees’ reliance for the contrary upon Texaco, 616 F.2d at 1197-98, and Atlantic Richfield Co., 769 F.2d at 778-79, is misplaced. The situation there involved the authority of certain agencies of the DOE to make orders as to which the 1977 Department of Energy Organization Act, 42 U.S.C. § 7192, made no provision for appeals to the TECA. As found by the majority in Texaco, 616 F.2d at 1198: The sole basis of the district court’s decision and the sole concern on the appeal is the lower court’s holding that FERC had review authority. The propriety of that holding, as the defendants concede, is not an EPAA question. It is a question which arises solely under the DOE Act.

8925158-14784

MEMORANDUM OF DECISION ON PLAINTIFFS’ APPLICATION FOR AN ATTORNEY FEES AWARD KRAVCHUK, United States Magistrate Judge. Currently pending is the plaintiffs’ motion for an award of statutory attorney fees (Docket No. 88) pursuant to the fee-shifting provision of the Rehabilitation Act, 29 U.S.C. § 794a(b). The plaintiffs’ application requests $102,270.00 as a reasonable attorney fee. The defendants concede in their opposition memorandum that the plaintiffs are entitled to a reasonable award as prevailing parties under the Rehabilitation Act, but take issue with the hourly rate requested and with a collection of itemized billings. (Opp’n to Pis.’ Application at 4, Docket No. 94.) I grant the application, but in a reduced amount. The parties are in agreement that the amount of the attorney fee award should be determined using the lodestar methodology, ie., by multiplying the num ber of hours productively expended by counsel by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Typically, a court proceeds to compute the lodestar amount by ascertaining the time counsel actually spent on the case “and then subtracting from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary.” Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.1984). The court then applies hourly rates to the constituent tasks, taking into account the “prevailing rates in the community for comparably qualified attorneys.” United States v. Metro. Dist. Comm’n, 847 F.2d 12, 19 (1st Cir.1988). Once established, the lodestar represents a presumptively reasonable fee, although it is subject to upward or downward adjustment in order to reflect the plaintiffs’ “degree of success in the litigation.” Chaloult v. Interstate Brands Corp., 296 F.Supp.2d 2, 4 (D.Me.2004); see also Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992). The plaintiffs bear the burden of establishing the reasonableness of the rates and hours submitted in their application for fees. Chaloult, 296 F.Supp.2d at 4. With these parameters in mind, I set about considering the reasonableness of the hours and rates requested by the plaintiffs. A. Reasonable Hours The plaintiffs assert that Attorneys Gause and Hansen expended 473 hours and 37.3 hours, respectively, on legal tasks that should be compensated at a full hourly rate, plus some 10.5 hours of combined travel time for both attorneys. The defendants challenge a substantial portion of the hours billed. I address those challenges by category. 1. Unrelated matters and unsuccessful claims The defendants argue that billings between January 13, 2003, and May 19, 2003, clearly relate to the prior state court action rather than the instant litigation. In addition, they claim that numerous billings relate to claims that were dismissed prior to trial, including several hours expended in opposition to the defendants’ summary judgment motion. This litigation began as a challenge to several alleged violations of the Eighth Amendment and the Rehabilitation Act and was gradually whittled down to a narrow set of plaints by the time of trial. In particular, the Rehabilitation Act claims went from some three alleged violations for plaintiff Mason and six alleged violations for plaintiff NaPier, to two alleged violations for Mason and three or four for NaPier. At trial, the Eighth Amendment claims failed altogether. I consider this gradual whittling of the case, often pursuant to stipulation, to justify a 50 per cent reduction in the pre-summary judgment billings that appear to group all pre-dismissal or pretrial claims into one billing and a total elimination of entries specifically tied to the Eighth Amendment claims, the aborted demands for injunctive relief and the efforts made to appoint Cathy Mason as the personal representative of her deceased husband’s estate. With respect to the 50 per cent reduction, I have in mind the 8.6 hours spent in February and April 2003 researching the various causes of action; 15.4 hours spent preparing the complaint in November 2003; 2 hours spent preparing discovery requests in December 2003; 11.6 hours spent on unspecified “legal research,” and a hodge-podge of other tasks performed on January 9, 16 and 21, 2004, without proper individualization of the disparate tasks in question; 5 hours spent on discovery request preparation in February 2004; and 18.5 hours spent in June and July of 2004 on deposition-related tasks such as legal research and preparation, the depositions themselves and “review ... to determine if further discovery is necessary.” These several entries total 61.1 hours, which I reduce by 30.5 hours. With respect to hours spent researching the Eighth Amendment, I have in mind the entries made October 28, 2003, and October 29, 2003, for a further reduction of 7.4 hours. With respect to the request for injunctive relief, I further decrease the hours requested by 0.2 hours. With respect to the appointment of Cathy Mason, there are a further 3.7 hours that I will deduct that were billed on the dates indicated by the defendants in their opposition. The hours Attorney Gause spent in opposing the defendants’ summary judgment motion should also be reduced by some figure to reflect time spent on unsuccessful claims. I note that the plaintiffs have already discounted all time spent opposing the motion to the extent it targeted certain of Mason’s claims. I count some 32.7 hours expended on reviewing the defendants papers, preparing NaPier’s opposition and reviewing the Court’s ruling, all billed between August 17, 2004, and October 1, 2004. The majority of the plaintiffs’ summary judgment legal memorandum pertained to NaPier’s unsuccessful Eighth Amendment claim. I reduce the hours expended on the summary judgment motion by 16.7 hours to account for this fact. In all, I remove 56.1 hours from the request on account of hours spent on unrelated matters and unsuccessful components of the plaintiffs’ claims. 2. Excessive hours The defendants assert that Attorney Gause spent excessive time on certain tasks such as amending the complaint. The plaintiffs agree to a 3.4 hour reduction, but I decline to reduce the award because I conclude that the substantial reductions I have already made to the hours billed by Attorney Gause sufficiently account for these few hours. The defendants also criticize the billing of 114.5 hours for trial preparation as excessive and as insufficiently particularized as to what tasks were performed. I count some 82.9 hours billed to trial preparation, not including 49 hours billed to “trial preparation; attend trial” on the three days the trial was in session in May 2005. According to the defendants, these hours are excessive in light of the limited number of issues and witnesses presented at the trial. The plaintiffs argue that Attorney Gause’s preparation was complicated because there were two plaintiffs whose claims arose from different facts, the “legal standards were complex and amorphous,” and the defendants refused to enter into many stipulations proposed by the plaintiffs and made very general references to the exhibits and witnesses they intended to present. (App. for Att’y Fees at 5-6.) Based on my understanding of this case, which was significantly narrowed in scope after the summary judgment stage, largely by agreement, I do not believe that the defendants unnecessarily complicated matters and I feel that 82.9 hours of pretrial preparation is excessive in view of the factual and legal issues involved. In addition, I consider the indefinite reference to “trial preparation” to be inadequate. It is reasonable to expect counsel to itemize billable work by specific task. Of the 131.9 hours billed to “trial preparation” and “trial preparation; attend trial” I will allow 94, although even that number rests at the outer limits of reasonableness. Therefore, an additional 37.9 hours are disallowed. 3. Clericallparalegal tasks The defendants complain that a number of entries relate only to clerical tasks, such as making phone calls to schedule depositions. Of the several entries identified by the defendants, I count some 7.6 hours. I will take away 0.5 hours of this time for a double billing on October 27, 2003, and another 3 hours to account for time expended on tasks such as attempting to contact clients and opposing counsel, and calendaring or scheduling tasks, that would not justify billing a client at the considerable rate of $185 per hour. This totals an additional disallowance of 3.5 hours. 4. Inadequate documentation In this category the defendants point to numerous billings itemized simply as “file review,” or some similarly vague entry. Of these billings I compute some 12.9 hours. The plaintiffs indicate that they will concede 2.4 hours. One of the concessions, concerning the billing for January 9, 2004 (1.8 hours), I have already compromised by 50 percent in the context of section 1 above. But I will reduce the award by a further 0.6 hours pursuant to the concession for the November 24, 2004, billing. In light of the numerous reductions already made to the plaintiffs application, I am not concerned that roughly 12 hours were billed for routine file review in connection with the numerous tasks Attorney Gause was required to perform for his clients over the course of this litigation. Accordingly, 0.6 hours are deducted on account of inadequate documentation. 5. Post-trial issues The plaintiffs concede a further 4.8 hours spent on “post-trial issues” and “appeal issues.” 6. Service-related billings Finally, the defendants take issue with time billed by Attorney Gause for issues related to service of the complaint. The targeted entries add up to 6.2 hours. I agree with the plaintiffs that “effectuating service properly is an essential part of a lawyers job” and, therefore, do not discount time spent researching the proper means of serving the state defendants. I will, however, take away 2 hours to account for the fact that the “non-core,” clerical aspects of the phone calls and document preparation tasks should not be billed at the full rate. See Guckenberger v. Boston Univ., 8 F.Supp.2d 91, 101-102 (D.Mass.1998) 7. Time billed by junior attorney The defendants assert that Attorney Hansen’s billing for 24 hours of attendance at the trial should be entirely disregarded. They assert that Attorney Hansen’s attendance at the trial was more for the purpose of his education and development as a trial lawyer than for the purpose of materially aiding Attorney Gause. From a paying client’s perspective, I think this assertion is generally accurate. However, I do not think that Attorney Hansen’s attendance was entirely unproductive and believe that his assistance with exhibits and other trial-related tasks would justify billing a paying client for 10 hours at the $100 per hour rate I have assigned for him (or perhaps more hours at a further reduced rate, see Guckenberger, 8 F.Supp.2d at 101-102). Although this effectively reduces Attorney Hansen’s rate to a paralegal level, there are obvious advantages to having assistance from a licensed attorney who is apt to have greater comprehension of the legal and procedural issues that arise during trial. Accordingly, I disallow 14 hours that were billed for Mr. Hansen’s trial attendance. B. Reasonable Rate In determining a reasonable hourly rate, the Court “considers the prevailing rates in the community for attorneys with similar experience and qualifications to those for whom fees have been requested.” Okot v. Conicelli, 180 F.Supp.2d 238, 242 (D.Me.2002); accord Quint v. A.E. Staley Mfg. Co., 245 F.Supp.2d 162, 176 (D.Me.2003). The plaintiffs have requested that Attorney John Gause receive an hourly rate of $205 and that his assistant attorney, Chad Hansen, receive an hourly rate of $150. In support of the $205 rate, the plaintiffs have submitted affidavits sworn to by Attorneys Arthur Grief and David Webbert, both experienced civil rights trial attorneys who commonly appear in this Court and whose work is well known to me. Attorney Grief avers that his current hourly rate for such work is $225, that he is familiar with Attorney Gause’s reputation and skill, and that he considers the plaintiffs’ request for an award of a $205 hourly rate to be within the prevailing market rate set by comparable attorneys engaged in comparable work. Attorney Webbert avers that his customary rate is $260 and, like Attorney Grief, that he is familiar with Attorney Gause’s reputation, work quality and skill, and that he considers a $205 hourly rate to be within the prevailing market range. Both attorneys have been practicing law for at least nine years longer than attorney Gause. As for Attorney Hansen, he has been a licensed attorney since only 2001 and it appears that he has focused his practice on disability rights since 2004. The plaintiffs have not introduced any evidence in support of the $150 hourly rate requested for Attorney Hansen other than an assertion by Attorney Gause that he considers a $150 hourly rate to match the prevailing rate in Bangor and Augusta for comparably experienced associates, based on Attorney Gause’s familiarity with the prevailing rates of his legal community. In opposition to the $205 rate requested for Attorney Gause, the defendants have introduced evidence that clients represented by other, more senior attorneys working in Attorney Gause’s office, The Disability Rights Center, requested hourly rates for their attorneys of $175, circa 2003, in relation to more sophisticated class action civil rights litigation The defendants argue that it would be unreasonable for the Court to assign a higher rate to Attorney Gause because he is junior to those attorneys and this case was less demanding. In light of these presentations and my independent knowledge of rates awarded in similar attorney fee applications filed in this Court, I will assign a lodestar rate of $185 per hour for work performed by At torney Gause and $100 per hour for the work performed by Attorney Hansen. C. Total Attorney Fee Award Taking into account all of the foregoing reductions, I calculate 347.6 hours for Attorney Gause at $185 per hour, and 23.3 hours for Attorney Hansen at an hourly rate of $100. In addition there are 10.5 hours of travel between the two attorneys, for which I will award compensation at a $20 per hour rate. Accordingly, the attorney fee award is as follows: Attorney Gause 347.6 hours at $185 per hour = $64,306.00 Attorney Hansen 23.3 hours at $100 per hour = 2,330.00 Travel_10.5 hours at $ 20 per hour =_$ 210,00 Total Attorney Fee Award $66,846.00 D. Litigation Costs

3573158-13805

MEMORANDUM R. THOMAS STINNETT, Bankruptcy Judge. This matter is before the court on the motion by Southern Adventist University (hereinafter “SAU”) for relief from the automatic stay provisions of 11 U.S.C. § 362(a) , and the response thereto by the debtor. A hearing was conducted on May 3, 2007, and the parties were afforded additional time within which to submit briefs. After hearing argument of counsel and having reviewed the motion by SAU, the response by the debtor, and the briefs of the parties, as well as having reviewed the record as a whole, the court makes the following findings of fact and conclusions of law. Findings of Fact The debtor filed a petition for relief in bankruptcy pursuant to Chapter 11 of Title 11 of the United States Code on January 5, 2007. On May 3, 2006, prior to the filing of the debtor’s petition, the Circuit Court of Hamilton County, Tennessee, entered a judgment against the debtor in favor of SAU in the amount of $33,083.07 in an action initiated by SAU for breach of a lease agreement. The judgment was recorded as a lien in the Hamilton County Register of Deeds’ office. SAU filed a proof of claim in the debtor’s case for $35,288.61, which includes post-judgment interest of $2,205.54. Currently pending in the Circuit Court of Hamilton County is a personal injury lawsuit initiated by the debtor against SAU on December 29, 2005, for injuries she sustained in a fall on property owned by SAU. The record does not reflect, nor did counsel for the parties know, the amount of damages sought by the debtor in her personal injury action against SAU. In its request for automatic stay relief, SAU asserts that it should be allowed to setoff any monetary judgment amounts awarded in favor of the debtor in the pending tort lawsuit against the judgment lien amount set forth in SAU’s proof of claim. The debtor opposes the motion on the grounds that the personal injury litigation has not been decided so there is no debt owed by SAU to the debtor; that the obligations between the parties lack mutuality, having had their origins in different causes of action, i.e., tort and contract; and that a determination by the Circuit Court that SAU is liable to the debtor for the personal injury claim will constitute a post-petition debt which cannot be offset against the judgment lien debt that arose pre-petition. The debtor also asserts that the award of damages, if any, in the personal injury lawsuit constitutes exempt property against which an offset is not permitted under Tennessee law. Jurisdiction Jurisdiction is predicated on 28 U.S.C. §§ 157 and 1334, and this matter is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (G). Conclusions of Law The provisions of 11 U.S.C. § 553 govern the setoff rights of the parties. The pertinent portion of that section states: Except as otherwise provided in this section and in sections 362 and 363 of this title, this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debt- or that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case,.... The setoff provision of the Code requires the following: a debt owed by the creditor to the debtor, and a claim of the creditor against the debtor, both of which arose prior to the filing of the bankruptcy case (timing); and that the debt and the claim be mutual obligations (mutuality). The creditor has the burden of proof of entitlement to setoff. Waste Management of Tennessee, Inc. v. Barry Parker’s, Inc. (In re Barry P. Parker’s, Inc.), 33 B.R. 115, 117 (M.D.Tenn.1983); Waldschmidt v. Columbia Gulf Transmission Co. (In re Fulghum Const. Corp.), 23 B.R. 147, 151 (Bankr.M.D.Tenn.1982); Third National Bank v. Carpenter, 14 B.R. 405, 408 (Bankr.M.D.Tenn.1981). With respect to the element of timing, the claims must both have arisen “before the commencement of the case under this title.” See also Borkman v. U.S. Pipe and Foundry (In re Borkman), 17 B.R. 710, 711 (Bankr.E.D.Tenn.1982). In this case, the lawsuit by SAU against the debt- or for breach of the lease agreement, and the lawsuit by the debtor against SAU for the tort liability, were initiated pre-petition for causes of action or claims that also arose pre-petition. However, the debtor argues that an award of damages, if any, by the state court in the pending tort litigation will create a post-petition claim or debt which renders the claim or debt ineligible for setoff under 11 U.S.C. § 553. A review of the definitions of “claim” and “debt” within the Code reveals how broadly defined these terms are: § 101(11) defines “debt” as a “liability on a claim;” and § 101(4)(A) defines “claim” as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliqui-dated, fixed, continent, matured, unma-tured, disputed, undisputed, legal, equitable, secured or unsecured.” The debtor owes SAU a right to payment which has been reduced to a judgment in favor of SAU, pre-petition. She, in turn, has a disputed claim against SAU for personal injuries sustained on SAU’s property. Both causes of action arose prior to commencement of the debtor’s petition. In Roach v. Edge (In re Edge), 60 B.R. 690 (Bankr.M.D.Tenn.1986), Judge Lundin observed that “[t]he policies that guide interpretation of the Bankruptcy Code are served by the conclusion that a claim arises at the time of the negligent act, notwithstanding that access to other courts or the running of a statute of limitation may be timed from some other point in the relationship between tortfeasor and victim.” Edge, 60 B.R. at 701 (emphasis added). In Edge, the debtor-dentist negligently treated a patient who failed to discover the injury until four months after the debtor’s bankruptcy petition had been filed. The patient filed suit in state court and requested a ruling from the bankruptcy court that the dental malpractice claim was a post-petition claim not subject to the automatic stay. In response, the debtor asserted that the claim arose pre-petition when the alleged negligent act occurred. Id. at 691. In a well-reasoned and thorough opinion, Judge Lundin determined that, for purposes of the Bankruptcy Code’s definition of a claim, the victim’s right of payment for the debtor’s pre-petition misconduct occurred “at the earliest point in the relationship between victim and wrongdoer. Though this right to payment may not be manifested as a right of access to other courts and though it be unmatured and contingent, it is a charge upon the wrongdoer and a demand inherent in the victim from the moment of the wrongful act.” Id. at 699. Accordingly, although the debtor’s claim against SAU in this case is contingent and unliquidated, the cause of action giving rise to the claim occurred pre-petition. This, not the award of damages, if any, determines whether the amount sought to be offset is a pre- or post-petition debt. Accordingly, in this case, the element of timing set forth in 11 U.S.C. § 553 has been satisfied. The next element to be satisfied is mutuality, which is not defined by the Code. According to the debtor, the claims lack mutuality because one sounds in contract and the other sounds in tort. “Mutuality of obligations means that the obligations must be between the same parties, ... and must be ‘owing to and due in the same rights and capacity.’ ” Waldschmidt v. Columbia Gulf Transmission Co. (In re Fulghum Construction Corp.), 23 B.R. 147, 151-52 (Bankr.M.D.Tenn.1982). In this case, the parties in question with respect to the contract and the tort actions are the debtor and SAU. No other parties are before the court with respect to either claim. As such, the obligations are “between the same parties.” Mutuality also requires that “something must be ‘owed’ by both sides.” Camelback Hospital, Inc. v. Buckenmaier (In re Buckenmaier), 127 B.R. 233, 238 (9th Cir.BAP1991)(citing 4 Collier on Bankruptcy, §§ 553.04, 553.18 (15th ed.1990)). See also Borkman v. U.S. Pipe and Foundry Co., (In re Borkman), 17 B.R. 710, 711 (Bankr.E.D.Tenn.1982). However, “it is established that the two debts need not arise from the same transaction or be of the same character ... Thus, tort claims may be setoff against contractual ones which arise from totally different transactions and incidents.” Buckenmaier, at 238 (citing In re Diplomat Electric, Inc., 499 F.2d 342 (5th Cir.1974)(defamation judgment and unre lated contractual debt)); In re Barry P. Parker’s, Inc., 33 B.R. 115 (M.D.Tenn.1983)(negligence claim from traffic accident and unrelated service contract debt); 4 Collier on Bankruptcy, §§ 553.04, 553.19 (15th ed.1990). In In re Barry P. Parker’s, Inc., the debtor asserted that a truck driven by a Waste Management employee struck and damaged an air conditioning unit owned by the debtor. When Waste Management refused to admit or accept responsibility for the damage, the debtor refused to honor its contractual obligation to pay $1,660.00 for services rendered by Waste Management. The debtor’s insurance carrier paid for the air conditioning unit, and shortly thereafter, the debtor filed a Chapter 11 bankruptcy petition. The debtor scheduled Waste Management as an unsecured creditor for $1,660.00, and noted its claim against Waste Management as offset and contingent. The debtor’s insurance carrier obtained a default judgment in a state court proceeding in the debtor’s name against Waste Management for the damage to the unit, which was appealed. Waste Management, in turn, filed an adversary proceeding against the debtor to obtain relief from the stay to proceed in state court as well for its $1,660.00 counterclaim as a setoff to the debtor’s claim for damages. The bankruptcy court granted relief from the automatic stay to Waste Management to permit it to assert its counterclaim to setoff any liability it might incur in the debtor’s state court action against it. Id. at 118. As stated by the court, the fact that the pre-petition judgment was in contract whereas the debtor’s cause of action was a tort claim “... has no effect on the right to setoff since mutuality does not require a similarity of obligations.” Id. at 117-18 (citing In the Matter of Diplomat Electric, Inc., 361 F.Supp. 1163, 1165 (S.D.Fla.1973), aff'd sub nom. Miller v. Westinghouse Electric Supply Co., 499 F.2d 342, 346-47 (5th Cir.1974); New York Credit Men’s Adjustment Bureau v. Bruno-New York, Inc., 120 F.Supp. 495, 497-98 (S.D.N.Y.1954); In re Manneschmidt, 202 F. 815, 815-16 (E.D.N.Y.1913); Seidle v. Turner (In re 18th Avenue Development Corp.), 12 B.R. 10, 11 (Bankr.S.D.Fla.1981); In re Doctors Hospital, Inc., 6 B.R. 390, 395 (Bankr.D.C.1980); 4 Collier on Bankruptcy ¶ 553.04, at 553-32 to 553-34 (15th ed.1982)). The court finds the analysis of In re: Barry P. Parker’s Inc., persuasive. In defense against the motion for relief from stay, the debtor also states that Tennessee law prohibits the right of setoff, for equitable purposes, when the application of that right works an injustice against or impairs the equitable rights of third parties. In support of this proposition, the debtor cites Auton’s Fine Jewelry & Bridal Center, Inc. v. Beckner’s, Inc., 707 S.W.2d 539 (Tenn.Ct.App.1986). In Beck-ner’s, two retail jewelry stores exchanged merchandise on open account. One store, Clifton’s, eventually became insolvent and the Bank of Commerce and other secured creditors commenced foreclosure on the merchandise and accounts receivable against which they held valid liens. Au-ton’s purchased the accounts receivable at foreclosure and commenced an action against Beckner’s for a receivable account from Beckner’s in the amount of $1,134.98. Clifton’s also owed Beckner’s $1,733.05. In its defense and counter-claim against Auton’s, Beckner’s-claimed a setoff based upon the $1,733.05 debt. The trial court refused to allow the setoff and entered judgment for Auton’s for $1,334.98. In affirming the trial court’s ruling, the court of appeals noted that “[ejssential to establishing a right of set-off, are the requirements that the demands be mutual and subsisting between the same parties and that the demands be of the same grade and nature or be due in the same capacity or right. Edington v. Pickle, 33 Tenn. (1 Sneed) 122 (1853); 80 C.J.S., Set-off and Counterclaim, § 48(a)(2).” Beckner’s, 707 S.W.2d at 540. Pursuant to Tenn.Code Ann. § 47-1-201(34), all of Clifton’s rights to the account receivable were transferred to Auton’s, which was an innocent, good faith purchaser of the collateral. Therefore, the demand was no longer of the same grade or nature, or asserted in the same capacity or right, and mutuality was extinguished. Id. Without mutuality, there is no basis for equitable relief. Id. The debtor argues that all other unsecured creditors in the debtor’s case are third parties whose equitable rights to disbursements from the estate assets will be impaired or destroyed if SAU is permitted to exercise its setoff rights with respect to the results of the pending lawsuit. The court notes, however, that the action by the Beckner’s plaintiff in purchasing the account receivable at foreclosure operated to extinguish the original mutuality that existed between Beckner’s and Clifton’s, and, as observed by the Tennessee Court of Appeals, without mutuality there is no basis for equitable relief. In this case, mutuality between the debtor and SAU remains intact. Furthermore, the unsecured creditors in this debtor’s case are entitled to no greater protection than that afforded the creditors of any other bankruptcy case wherein rights of setoff between the debtor and one creditor operate to reduce the assets available for distribution to all other unsecured creditors.

6099861-8588

MEMORANDUM AND ORDER CHARLES J. MARRO, Bankruptcy Judge. This is an adversary proceeding predicated on § 523(a)(2)(A) of the Bankruptcy Code to determine dischargeability of debt. The Debtors filed their Petition for Relief under Chapter 7 of the Bankruptcy Code on December 21, 1982. The Chittenden Trust filed its Petition for Exception to Discharge on February 2, 1983, and the matter came on for trial on March 14,1983. On the basis of the evidence and the testimony submitted by the parties, the Court now makes its findings and conclusions. The gravamen of the Plaintiff’s complaint is upon a series of retail purchases of merchandise by the Debtor through the use of a Master Card credit card issued by the Plaintiff. The Chittenden contends that the actions of the Debtor relating to the use of the credit card constitute fraud within the parameters of § 523(a)(2)(A) of the Bankruptcy Code. FINDINGS In December 1981, the Chittenden Trust Company gave its approval for the opening of a Master Card account upon the request of Arlington Custom Kitchens. The personal guarantors for the account were Arnold Griffis and Philip H. Bahan. In notifying the Debtor of the approval of the account for Arlington Custom Kitchens, the Chit-tenden indicated that the account was assigned a credit limit of $1000.00. From January 1982 through August 1982, it appears that there were no significant problems with the account. In September 1982, the Debtor’s Master Card account was brought to the attention of Gary Ladabouche, Credit Card Collector for the Chittenden Trust, since the account balance exceeded the assigned credit limit. On September 10,1982, the Chittenden sent a letter to Arnold Griffis advising him that the balance of the account exceeded the $1000.00 credit limit, and that the use of the card should be restricted until the balance was again below the credit limit. The account balance as of the September 7th statement was in the amount of $1254.68. However, the statement appeared to contradict the letter by requesting a minimum payment of only $62.72. The Court further notes that the August balance was in the amount of $1233.93, however, no action was taken by the Chittenden prior to the September letter. On September 27, 1982 and October 5, 1982 the Debtor made payments of $254.48 and $62.72, respectfully. These payments, as reflected in the October statement, reduced the account balance to $993.30. However, the Debtor’s account balance again exceeded the $1000.00 credit limit in November, and remained above the limit through the filing of the Petition. On November 29, 1982, the Chittenden notified the Debtor that unless the balance was reduced to within the credit limit, the account would be closed, and the privileges revoked. The Debtor made no payments after October 5,1982, nor any in response to the Chittenden’s letter of November 29th. However, it appears to the Court that the Debtor had intended to pay on the account at the time the purchases were made. The Debtor’s account for the months of November and December of 1982 reflected purchases and balances as follows: NOVEMBER STATEMENT closing date 11/4/82 Date of transaction Charges Amount 9/15 Mobil Oil 13.00 10/15 Gaynes, Inc. 61.30 10/5 Casa Romano 39.73 10/11 Holiday Inn 68.15 10/26 Blue Fox Tavern 12.45 Finance charges 17.47 Balance 1218.90 DECEMBER STATEMENT closing date 12/6/82 10/28 Sun Oil 14.00 10/16 Sun Oil 10.70 10/25 Sun Oil 14.00 11/2 Chem-clean Mobil 14.40 11/28 Chem-clean Mobil 16.00 Finance charges 20.07 Balance 1308.07 JANUARY STATEMENT closing date 1/6/83 11/25 Getty Refining 25.00 12/3 Chem-clean Mobil 14.75 12/1 Chem-clean Mobil 15.25 11/30 Blue Fox Tavern 21.59 12/9 Chem-clean Mobil 13.00 12/2 Cobblestone Inn 19.25 Finance charges 16.93 Balance 1437.84 The Court further notes that the Debtor has appeared pro se in the instant proceeding, and that the Petition for Relief, as filed on December 21,1982, indicates no attorney of record. CONCLUSIONS Section 523 of the Bankruptcy Code states in pertinent part: (a) A discharge under section 727,1141 or 1328(b) of this title does not discharge an individual debtor from any debt — ... (2) for obtaining money, property, services, or extension, renewal, or refinance of credit, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or insider’s financial condition...' It is well established that the type of fraud dealt with in Section 523(a)(2) is actual fraud and requires intentional wrong involving moral turpitude. In re Stewart, 7 B.R. 551 (Bkrtcy.M.D.Ga.1980). Section 523(a)(2) is substantially the same as former § 17(a)(2) of the Bankruptcy Act, as to dischargeability, and therefore, in order to sustain a claim of nondischargeability under § 523(a)(2) the following must be established: (1) that the Debtor made a, materially false representation; (2) that the representation was made with the intent to defraud, and (3) that the Bank relied on the false misrepresentation. Matter of Banasiak, 8 B.R. 171 (Bkrtcy.M.D.Fla.1981). The burden of proving each of these elements is upon the party seeking to come within the statutory exception to discharge, and this must be proven by clear and convincing evidence. In re Stewart, supra. In considering the element of representation the Court in Matter of Banasiak stated at 174: Purchases of merchandise by use of a credit card is a implied representation to the merchant and to the issuer of the card, that the buyer has the means and the intention to pay for the purchase. In re Cushingberry, 5 B.C.D. 954 (E.D.1977); In re Boydston, 520 F.2d 1098 (5th Cir.1975); In re Black, 373 F.Supp. 105 (E.D.Wis.1974). Accordingly, when one purchases goods on credit and either knows that he is unable to comply with the payment requirements of his contract with the card issuer, or when it appears from the evidence that he had no intention to pay for them, he obtains the goods through false pretenses which constitute a form of fraud on the creditor. In the instant case, it may be assumed that such an implied representation was made every time the Debtor used his Master Card to obtain goods and services. However, it is the element of the intent to defraud that must carefully be considered in the instant case. The Plaintiff relies upon the factors recited in In re Stewart, 7 B.R. 551 (Bkrtcy.M.D.Ga.1980), for proving an intent to defraud. In Stewart, the Court stated: Intention of course is a very subjective thing and in most instances can only be shown circumstantially. Nonetheless, if appropriate factors are shown the Court, this intention may be established. Factors for which to look are: 1. the length of time between the charges made and the filing of bankruptcy. 2. whether or not an attorney has been consulted concerning the filing of bankruptcy before the charges are made; 3. the number of charges made; 4. the amount of charges; 5. the financial condition of the debtor at the time the charges are made, and; 6. whether the charges were above the credit limit of the account. In applying the above factor to the instant case, and after reviewing the decisions of courts which have considered the factors, it is exceedingly clear that the Debtor in the instant case did not have the necessary intent to defraud. In the instant case, the number of charges and the time that such charges were made prior to the filing of the petition do not evince proof of wrongdoing or fraud. In fact, the number of charges and the nature of such charges for October, Novem ber and December show that the Debtor maintained the same course of business as he had in the prior months. Generally, a finding of nondis-chargeability occurs when the number of charges exhibit a buying spree in contemplation of bankruptcy. In re Wright, 8 B.R. 625 (Bkrtcy.S.D.Ohio.W.D.1981). See also, In re Vegh, 14 B.R. 345 (Bkrtcy.S.D.Fla.1981); (Vegh averaged 20 purchases a day, and in a one month period, managed to amass purchases totalling nearly twenty times her aggregate credit limit on two cards.) However, dischargeability will not be denied where there is no evidence that the credit was used on the eve of bankruptcy unusually or in contemplation of defaulting in payments or filing bankruptcy. See The Winters National Bank and Trust Co. v. Robert N. Smith, 1 B.C.D. 1630 (1975), as cited in Wright. There was no buying spree by the Debtor herein, nor was the card unusually used just prior to the filing of the petition. Therefore, these factors cannot be relied upon to prove fraudulent intent.

6642500-6284

Opinion of the Court Quinn, Chief Judge: This is an appeal from a conviction by general court-martial for several offenses, including robbery, in violation of Article 122, Uniform Code of Military Justice, 10 USC § 922. The accused contends that a remark by a court member, during a closed session conference with the law officer for the purpose of putting the findings in proper form, indicates the member had prior knowledge of a matter concerning the accused which he should have disclosed during the challenge proceedings at the start of the trial. Eliminating remarks immaterial to issue before us, the colloquy between the law officer and the court members on the form of findings is as follows: “LO: . . . Check me now and see if this is what you’ve turned up. ‘Private CZERWONKY, it is my duty as president of this court to inform you that the court in closed session and upon secret written ballot, two-thirds of the members present at the time the vote was taken, concurring in each finding of guilty finds you of the specification Charge I, guilty.’ It’s also got to say; and Charge I. “PRES: Specification 1 of Charge II rather. . . “LO: Of specification 1, Charge II, guilty and Charge II, guilty and of the specification and additional charge, guilty. “PRES: Of the charge, guilty. “LO: And then, of Charge I, guilty and then back up to Charge II. “PRES: Do we all agree? “MEMBER: I think that he’s a PFC though. He’s a PFC. “MEMBER: No, he’s a private. He was busted at office hours.” Appellate defense counsel contend the court member’s comment that the accused had been “busted at office hours” indicates he had prior knowledge of the accused’s involvement in a criminal offense which he should have disclosed on the voir dire examination. See United States v Schuller, 5 USCMA 101, 17 CMR 101. Since there was no disclosure, the argument continues, the accused was deprived of the right to challenge the court member for cause. See United States v Lynch, 9 USCMA 523, 26 CMR 303. The argument rests on an unarticulated assumption that the comment was predicated solely on the members private knowledge of the incident. At the outset, we reject the accused’s suggestion that the unidentified court member deliberately concealed knowledge of the fact that he knew the accused had been reduced in grade at “office hours.” The voir dire of the court members shows a genuine effort on their part to reveal all information they had that might bear upon the case. A copy of the charge sheet was given to each court member. After reading it, one member immediately noted he recognized the names of two persons mentioned in the specifications. These persons were members of the same battalion to which he was assigned, and he knew them “by sight.” Another mem ber indicated that when in Japan he had heard about the case, but he “knew nothing about the individual involved.” After full examination, both members were accepted by defense counsel. Also important to the charge of deliberate concealment is the nature of the alleged knowledge. It relates merely to official action of a relatively minor nature. See Article 15, Uniform Code of Military Justice, 10 USC § 815. It is not, therefore, the kind of information that would induce a member to conceal his knowledge of it for fear of being challenged for cause. See United States v Washington, 8 USCMA 588, 25 CMR 92; United States v Edwards, 4 USCMA 299, 15 CMR 299; cf. United States v Schuller, supra. So far as inadvertent silence is concerned, the record of trial contains matter from which reasonably it can be concluded the statement was based on what the member had heard in open court, rather than upon his prior knowledge. The specification of Charges I and II described the accused as a Private First Class. These oifenses were alleged to have occurred on March 19, 1961. The specification of the Additional Charge described the accused as a Private; that offense, escape from confinement, was allegedly committed on May 21, 1961. As previously noted, a copy of the charge sheet was given to each court member. On the arraignment, the accused was described as a Private. In the course of the trial, evidence was introduced to the effect that the accused and other persons appeared before their commanding officer in May 1961 and were informed that “they would be placed in the security area at Camp Hansen, Okinawa, for violations of the Uniform Code of Military Justice.” Persons sent to the security area were “liberty risks,” whom the commander believed should be detained in camp. The commander gave the accused’s rank as Private. Before his appearance before the commanding officer, the accused had not been allowed to go on liberty. These circumstances reasonably justify the conclusion that between March 19 and May 21, 1961, the accused had been reduced in grade. They also suggest the reduction was prompted by some action of the accused which required that he be disciplined, but that the misdeed was minor and was disposed of at office hours, rather than by court-martial. In our opinion, therefore, the record of trial indicates the member’s comment was based upon matters presented in open court, and does not support the accused’s allegation that the member possessed previous knowledge that the reduction was effected at office hours. In any event, even if, in fact, the court member had prior knowledge that the accused was reduced at office hours, we perceive no possibility that the knowledge, and the member’s disclosure of it in closed session, prejudiced the accused as to either the findings or the sentence. We are not informed of the exact nature of the misdeed that led to the accused’s reduction, but since it resulted only in “office hours” punishment, manifestly it was no more than a very minor wrong. Knowledge of a minor act of misconduct in a prosecution for a serious crime is not likely, in the absence of other circumstances, to make so indelible an impression on the court members as to prejudice them in their deliberations on the accused’s guilt or innocence or in their imposition of sentence. One of the offenses of which the accused was tried and convicted in this case is robbery. Referring to the relation between that crime and a “simple delinquency,” we have said:

12270465-22822

Dissent by Judge Kozinski OPINION HURWITZ, Circuit Judge: When a debtor, over a secured creditor’s objection, seeks to retain and use the creditor’s collateral in a Chapter 11 plan of reorganization through a “cram down,” the Bankruptcy Code treats the creditor’s claim as secured “to the extent of the value of such creditor’s interest.” 11 U.S.C § 506(a)(1). That value is to “be determined in light of the purpose of the valuation and of the proposed disposition or use of such property,” Id. In Associates Commercial Corp. v. Rash, the Supreme Court adopted a “replacement-value standard” for § 506(a)(1) cram-down valuations. 520 U.S. 953, 956, 117 S.Ct. 1879, 138 L.Ed.2d 148 (1997). The Court held that replacement value, “rather than a foreclosure sale that will not take place, is the proper guide under a prescription hinged to the property’s ‘disposition or use.’ ” Id. at 963,117 S.Ct. 1879 (quoting In re Winthrop Old Farm Nurseries, Inc., 50 F.3d 72, 75 (1st Cir. 1995)). In rejecting a “foreclosure-value standard,” the Court also noted that foreclosure value was “typically lower” than replacement value. Id. at 960,117 S.Ct. 1879. Today, however, we confront the atypical case. Because foreclosure would vitiate covenants requiring that the secured property — an apartment complex — be used for low-income housing, foreclosure value in this case exceeds replacement value, which is tied to the- debtor’s “actual use” of the property in the proposed reorganization. Id. at 963, 117 S.Ct. 1879. But we take the Supreme Court at its word and hold, as Rash teaches, that § 506(a)(1) requires the use of replacement value rather than a hypothetical value derived from the very foreclosure that the reorganization is designed to avoid. Thus, the bankruptcy court did not err in this case in approving Sunnyslope’s plan of reorganization and valuing the collateral assuming its continued use after reorganization as low-income housing. BACKGROUND I. The Sunnyslope Project Sunnyslope Housing Limited Partnership (“Sunnyslope”) owns an apartment complex in Phoenix, Arizona. Construction funding came from three loans. Capstone Realty Advisors, LLC, provided the bulk of the funding through an $8.5 million loan with an interest rate of 5.35%, secured by a first-priority deed of trust. The Capstone loan was guaranteed by the United States Department of Housing and Urban Development (“HUD”), and funded through bonds issued by the Phoenix Industrial Development Authority. The City of Phoenix and the State of Arizona provided the balance of the funding. The City loan was secured by a second-position deed of trust, and the State loan by a third-position deed of trust. A. The Covenants To secure financing and tax benefits, Sunnyslope entered into five agreements: 1. To obtain the HUD guarantee, Sun-nyslope signed a Regulatory Agreement requiring that the apartment complex be used for affordable housing. 2. Sunnyslope also entered into a Regulatory Agreement with the Phoenix Industrial Development Authority, requiring Sunnyslope to “preserve the tax-exempt status” of the project, and use 40% of the units for low-income housing. The agreement provided that its covenants “shall run with the land and shall bind the Owner, and its successors and assigns and all subsequent owners or operators of the Project or any interest therein.” The restrictions, however, terminated on “foreclosure of the lien of the Mortgage or delivery of a deed in lieu of foreclosure.” 3. The City of Phoenix required Sun-nyslope to sign a Declaration of Affirmative Land Use Restrictive Covenants, mandating that 23 units be set aside for low-income families. The restriction ran with the land and bound “all future owners and operators” but, similarly, would be vitiated by foreclosure. 4. The Arizona Department of Housing required Sunnyslope to enter into a Declaration of Covenants, Conditions, and Restrictions. That 40-year agreement set aside five units for low-income residents. The agreement ran with the land and bound future owners, terminated upon foreclosure, and was expressly subordinate to the HUD Regulatory Agreement. 5. Finally, in order to receive federal tax credits, Sunnyslope agreed with the Arizona Department of Housing to use the entire complex as low-income housing. The tax credits, and restriction on use, would terminate on foreclosure. B. The Default and its Aftermath In 2009, Sunnyslope defaulted on the Capstone loan. As guarantor, HUD took over the loan and sold it to First Southern National Bank (“First Southern”) for $5.05 million. In connection with the sale, HUD released its Regulatory Agreement. The Loan Sale Agreement confirmed, however, that the property remained subject to the other “covenants, conditions and restrictions.” First Southern began foreclosure proceedings, and an Arizona state court appointed a receiver. In December 2010, the receiver agreed to sell the complex to a third party for $7.65 million. II. The Bankruptcy Proceedings Before the sale could close, Sunnyslope filed a Chapter 11 petition., Over First Southern’s objection, Sunnyslope sought to retain the complex in its proposed plan of reorganization, , exercising the ■ “cram- down” option in 11 U.S.C. § 1129(b)(2)(A). A successful cram down allows the reorganized debtor to retain collateral over a secured creditor’s objection, subject to the requirement in § 506(a)(1) that the debt be treated as secured “to the extent of the value of such creditor’s interest” in the collateral. The central issue in the reorganization proceedings was the valuation of First Southern’s collateral, the apartment complex. Sunnyslope asserted that the complex should be valued as low-income housing, while First Southern contended that the complex should instead be valued without regard to Sunnyslope’s contractual obligations to use it as low-income housing, which would terminate upon foreclosure. In that regard, First Southern’s expert valued the complex at $7.74 million, making the “extraordinary assumption” that a foreclosure would remove any low-income housing requirements. First Southern’s expert also opined, however, that the value of the property was only $4,885,000 if those requirements remained in place. Sunnys-lope’s expert valued the property at $2.6 million with the low-income housing restrictions in place, and at $7 million without. During its original proceeding, the bankruptcy court held that, under § 506(a)(1), the value of the property was $2.6 million because Sunnyslope’s plan of reorganization called for continued use of the complex as low-income housing. The court also declined to include in the valuation of the complex the tax credits available to Sun-nyslope. First Southern then elected to treat its claim as fully secured under 11 U.S.C. § 1111(b). The bankruptcy court subsequently confirmed the plan of reorganization, which provided for payment in full of the First Southern claim over 40 years, at an interest rate of 4.4%, with a balloon payment at the end without interest. The reorganization plan required the City and State to relinquish their liens, but provided for payment of their unsecured claims in full, albeit without interest, at the end of the 40 years. The bankruptcy court found the plan fair and equitable under 11 U.S.C. § 1129(b)(1) because First Southern retained its lien, would receive an interest rate equivalent to the prevailing market rate, and could foreclose (and, therefore, obtain the property without the restrictive covenants) should Sunnyslope default. The court also found the plan feasible under 11 U.S.C. § 1129(a)(ll), citing Sunnyslope’s financial projections, and noting that “the Creditor has come in with no evidence of a lack of feasibility.” The court concluded that it was more likely than not that Sun-nyslope could make plan payments based on the history of comparable properties. The court also noted that, when the balloon payment came due, the property would be free of the low-income housing restrictions, making the collateral an even more valuable asset. After confirmation, First Southern obtained a stay of the plan of reorganization from the district court pending appeal. The district court denied First Southern’s request for a stay. Cornerstone at Camel-back LLC invested $1.2 million in the complex, and the plan was funded. The district court affirmed the reorganization plan as modified. Both parties appealed. After First Southern unsuccessfully sought a writ from this court prohibiting the bankruptcy court from considering the district court’s remand pending resolution of the appeals, the bankruptcy court valued the tax credits at $1.3 million, added that amount to its previous valuation, and re-confirmed the plan of reorganization. First Southern attempted to withdraw its § 1111(b) election, but the bankruptcy court denied the request. First Southern again appealed. The district court denied First Southern’s request for a stay and affirmed the reorganization plan as modified. First Southern timely appealed to this court, and Sunnyslope cross-appealed. III. Panel Opinion After the various appeals were consolidated, a divided panel of this court reversed the bankruptcy court’s order approving the plan of reorganization, holding that the court should have valued the apartment complex without regard to the affordable housing requirements. In re Sunnyslope Hous. Ltd. P’ship, 818 F.3d 937, 940 (9th Cir. 2016). The majority held that, under § 506(a)(1), replacement cost “is a measure of what it would cost to produce or acquire an equivalent piece of property” and that “the replacement value of a 150-unit apartment complex does not take into account the fact that there is a restriction on the use of the complex.” Id. at 948 n.5. The dissenting opinion, in contrast, argued that “a straightforward application” of Rash “compels valuing First-Southern’s collateral ... in light of Sun-nyslope’s proposed use of the property in its plan of reorganization as affordable housing.” Id. at 950 (Paez, J., dissenting). A majority of the active judges of this court voted to grant Sunnyslope’s petition for rehearing en banc, and the panel opinion was vacated. In re Sunnyslope Hous. Ltd. P’ship, 838 F.3d 975 (9th Cir. 2016); see Fed. R. App. P. 35. DISCUSSION The critical issue for decision is whether the bankruptcy court erred by valuing the apartment complex assuming its continued use after reorganization as low-income housing. In addition, First Southern contends that the plan of reorganization is neither fair and equitable nor feasible, and that the district court erred in not allowing it to withdraw its § 1111(b) election. I. Valuation When a Chapter 11 debtor opts for a cram down, a creditor’s claim is secured “to the extent of the value of such creditor’s interest in the estate’s interest in [the secured] property.” 11 U.S.C. § 506(a)(1). The value of that claim is “determined in light of the purpose of the valuation and of the proposed disposition or use of such property.” Id. We established long ago that, “[w]hen a Chapter 11 debtor or a Chapter 13 debtor intends to retain property subject to a lien, the purpose of a valuation under section 506(a) is not to determine the amount the creditor would receive if it hypothetically had to foreclose and sell the collateral.” In re Taffi, 96 F.3d 1190, 1192 (9th Cir. 1996) (en banc). The debtor is “in, not outside of, bankruptcy,” so “[t]he foreclosure value is not relevant” because the creditor “is not foreclosing.” Id. In Taffi, we noted that our decision was consistent with the approach of all but one circuit — the Fifth — which had adopted a foreclosure-value standard in In re Rash, 90 F.3d 1036 (5th Cir. 1996) (en banc). See 96 F.3d at 1193. There, the Rashes owed $41,171 on a freight-hauler truck loan when they filed a Chapter 13 petition. Rash, 520 U.S. at 956, 117 S.Ct. 1879. They sought to retain the truck through a cram down, proposing a reorganization plan paying the creditor for the foreclosure value of the truck, which they contended was $28,500. Id. at 957, 117 S.Ct. 1879. In contrast, the creditor argued the truck should be valued at “the price the Rashes would have to pay to purchase a like vehicle,” estimated at $41,000. Id. But the Fifth Circuit disagreed and held that § 506(a)(1) required the use of foreclosure value. Rash, 90 F.3d at 1060-61. One year after we decided Tajfi, the Supreme Court reversed the Fifth Circuit. The Court held, consistent with Tajfi, that “§ 506(a) directs application of the replacement-value standard,” rather than foreclosure value. Rash, 520 U.S. at 956, 117 S.Ct. 1879. The Court stated that the value of collateral under § 506(a)(1) is “the cost the debtor would incur to obtain a like asset for the same ‘proposed ... use.’.” Id. at .965, 117 S.Ct. 1879 (alteration in original). Rash stressed the instruction in § 506(a)(1) to value the collateral based on its “proposed disposition or use” in the plan of reorganization. Id. at 962,117 S.Ct. 1879. The Court emphasized that, in a reorganization involving a cram down, the debtor will continue to use the collateral, and valuation must therefore occur “in light of the proposed repayment plan reality: no foreclosure sale.” Id. at 963, 117 S.Ct. 1879 (alteration omitted) (quoting Winthrop Old Farm Nurseries, 50 F.3d at 75). The “actual use,” the Court held, “is the proper guide,” id., and replacement value is therefore “the price a willing buyer in the debtor’s trade, business, or situation would pay to obtain like property from a willing seller,” id. at 960, 117 S.Ct. 1879. Rash also teaches that the determination of replacement value by the bankruptcy court is a factual finding. Id. at 965 n.6, 117 S.Ct. 1879. We therefore review the valuation determination in this case for clear error. In re JTS Corp., 617 F.3d 1102, 1109 (9th Cir. 2010). We find none. The essential inquiry under Rash is to determine the price that a debtor in Sunnyslope’s position would pay to obtain an asset like the collateral for the particular use proposed in the plan of reorganization. 520 U.S. at 965, 117 S.Ct. 1879. First Southern does not dispute that there was substantial evidence before the bankruptcy court that it would cost Sunnyslope $3.9 million to acquire a property like the apartment complex (including the tax-credits) with similar restrictive covenants requiring that it be devoted to low-income housing. Despite this, First Southern argues that the property should instead be valued at its “highest and best use” — housing without any low-income restrictions. But § 506(a)(1) speaks expressly of the reorganization plan’s “proposed disposition or use.” Absent foreclosure, the very event that the Chapter 11 plan sought to avoid, Sunnyslope cannot use the property except as affordable housing, nor could anyone else. Rash expressly instructs that a § 506(a)(1) valuation cannot consider what would happen after a hypothetical foreclosure — the valuation must instead reflect the property’s “actual use.” 520 U.S. at 963,117 S.Ct. 1879. First Southern attempts to distinguish Rash by noting that foreclosure value is greater than replacement value in this case. But Rash implicitly acknowledged that this outcome might occasionally be the case, and nonetheless adopted a replacement-value standard. See 520 U.S. at 960, 117 S.Ct. 1879. We cannot depart from that standard without doing precisely what Rash instructed bankruptcy courts to avoid — assuming a foreclosure that the Chapter 11 petition prevented. See id. at 963,117 S.Ct. 1879. To be sure, a creditor is better off whenever the highest possible value for its collateral is chosen, and Rash did in fact recognize that when “a debtor keeps the property and continues to use it, the creditor obtains at once neither the property nor its value and is exposed to double risks: The debtor may again default and the property may deteriorate from extended use.” Id. at 962, 117 S.Ct. 1879. But Rash did not adopt a rule requiring that the bankruptcy court value the collateral at the higher of its foreclosure value or replacement value. Rather, it expressly rejected the use of foreclosure value, and instead stressed the requirement in § 506(a)(1) that the property be valued in light of its “proposed disposition or use.” 520 U.S. at 960, 962, 117 S.Ct. 1879. Here, the proposed disposition and use is for low-income housing; indeed, no other use is possible without foreclosure. First Southern may be exposed to an increased risk under the cram down, but that does not allow us to ignoré the command of Rash. First Southern also' argues that the low-income housing requirements do not apply to its security because HUD released its Regulatory Agreement, and all other eove-nants are junior to its lien. Although the State and City liens may be subordinate to First Southern’s, it is undisputed the restrictions they impose continue to run with the land absent foreclosure. Thus, they were properly considered in determining the value of the collateral. Finally, First Southern’s amici argue that valuing the collateral with the low-income restrictions in place would discourage future lending on like projects. We disagree. “[W]hile the protection of creditors’ interests is an important purpose under Chapter 11, the Supreme Court has made clear that successful debt- or reorganization and maximization of the value of the estate are the primary purposes.” In re Bonner Mall P’ship, 2 F.3d 899, 916 (9th Cir. 1993) (footnote omitted), abrogated on other grounds by Bullard v. Blue Hills Bank, — U.S. -, 135 S.Ct. 1686, 191 L.Ed.2d 621 (2015). Allowing the debtor to “rehabilitate the business” generally maximizes the value of the estate. Id. And, in this case, First Southern bought the Sunnyslope loan at a substantial discount, knowing of the risk that the property would remain subject to the low-income housing requirements. Valuing First Southern’s collateral with those restrictions in mind subjects the lender to no more risk than it consciously undertook. See Rash, 520 U.S. at 962-63, 117 S.Ct. 1879. Accordingly, we hold that the bankruptcy court did not err in valuing First Southern’s collateral in the plan of reorganization assuming its continued use as affordable housing. II. Plan Fairness The cram-down provision in 11 U.S.C. § 1129(b) requires that the reorganization plan be “fair and equitable.” The secured creditor must retain its lien, § 1129(b)(2)(A)(i)(I), and receive payments over time equaling the present value of the secured claim, § 1129(b) (2) (A) (i) (II). Whether a plan is fair and equitable is a factual determination reviewed for clear error. In re Acequia, Inc., 787 F.2d 1352, 1358 (9th Cir. 1986). The bankruptcy court found the Sunnys-lope plan fair and equitable because First Southern retained its lien and received the present value of its allowed claim over the term of the plan. There is no dispute that First Southern retained its lien, and our discussion above disposes of any contention that its secured claim was undervalued. Thus, the only remaining question is whether the bankruptcy court erred in concluding that the plan provides for payments equal to the present value of the secured claim. The interest rate chosen must ensure that the creditor receives the present value of its secured claim through the payments contemplated by the plan of reorganization. Till v. SCS Credit Corp., 541 U.S. 465, 469, 124 S.Ct. 1951, 158 L.Ed.2d 787 (2004). In Till, a plurality endorsed the “formula approach” for calculating the appropriate interest rate, which begins with the national prime rate and adjusts up or down according to the risk of the plan’s success. Id. at 478-79, 124 S.Ct. 1951. The creditor bears the burden of showing that the prime rate does not adequately account for the riskiness of the debtor. Id. First Southern argues that it is not receiving the present value of its secured claim because the interest rate adopted in the plan, 4.4%, is lower than the original rate on its loan. But we find no clear error in the bankruptcy court’s determination. The bankruptcy court conducted a hearing at which it heard expert testimony, applied the Till test, and found that the 4.4% interest rate on the plan payments would result in First Southern’s receiving the present value of its $3.9 million security over the term of the reorganization plan. The relevant national prime rate was 3.25%, and the bankruptcy court adjusted that rate upward to account for the risk of non-payment. The court also heard testimony that the market loan rate for similar properties was 4.18%. In setting the 4.4% rate, the bankruptcy court carefully explained its reasoning, noting that interest rates had decreased significantly since the Capstone loan was made. The bankruptcy court also noted that the risk to the lender had similarly decreased since then because, when the loan was made, the apartment complex had not yet been built. The bankruptcy court did not clearly err, and we affirm its determination. III. Plan Feasibility Plan confirmation also requires a finding that the debtor will not require further reorganization. 11 U.S.C. § 1129(a)(ll). It therefore requires the debtor to demonstrate that the plan “has a reasonable probability of success.” Acequia, 787 F.2d at 1364. A bankruptcy court’s finding of feasibility is reviewed for abuse of discretion. Id. at 1365. The bankruptcy court did not abuse its discretion in finding the Sunnys-lope plan feasible. A projection showed that Sunnyslope would be able to make plan payments, and expert testimony confirmed that the collateral would remain useful for 40 years (the term of the plan). The court also found the balloon payment feasible because it was secured by property whose value exceeded the value of the remaining First Southern claim. And the court noted that First Southern had “come in with no evidence of a lack of feasibility.” It was therefore well within the bankruptcy court’s discretion to find that the plan of reorganization was feasible. IV. The § 1111(b) Election Finally, § 1111(b) of the Bankruptcy Code allows a secured creditor to elect to have its claim treated as either fully or partially secured. An election affects the treatment of the unsecured portion of the claim under the plan and the procedural protections afforded to the creditor. See, e.g., 11 U.S.C. § 1129(a)(7)(B). In the absence of a contrary order by the bankruptcy court, the creditor must make this election before the end of the disclosure statement hearing. Fed. R. Bankr. P. 3014. In this case, the bankruptcy court ordered that First Southern make its § 1111(b) election “7 calendar days after the court issues a ruling on valuation.” First Southern timely did so, choosing to treat its entire claim as secured.

3704257-13064

OPINION SWEET, District Judge. Plaintiff, Metro Kane Imports, Ltd. (“MKI”) has moved for a preliminary injunction against defendant Rowoco, Inc. (“Rowoco”) pursuant to section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), New York Common Law, and the “Mold Statutes” of California, Michigan, and Tennessee, to bar Rowoco’s continued importation and sale of a hand operated orange juice squeezer allegedly identical to that imported and sold by MKI. The motion is denied upon the following findings and conclusions. Prior Proceeding The action was commenced on August 24, 1984. Expedited discovery was had, and the motion was heard on September 21, 1984. No factual dispute was presented, and no surveys of consumer loyalty to the products involved were submitted. Consequently, no evidentiary hearing was required. Facts Since September, 1982, MKI, a New York corporation, has been the exclusive wholesale distributor in the United States of a manual orange juice squeezer produced in Mexico. Through the end of August 1984, sales totalled 32,929 units, producing $823,243 in gross revenues from this product for MKI, 90% of MKI's total income. MKI has spent in excess of $100,000 on advertising and promotion in numerous trade publications, gourmet periodicals, and the general press. The juicer, which is based on a rack and pinion mechanism similar to that of other juicers, has a rather distinctive exterior. MKI does not mark its juicer with any source — identifying label on the product itself, although the seven inch cube-box in which the product is packaged has one-half inch lettering naming the product “Mighty OJ.” The name Metro Kane Imports appears only in one-eighth inch black lettering barely visible against a blue background in the bottom corner of each facade of the box. The .packaging features a picture of one juicer, a glass of orange juice, and three and one-half oranges. Rowoco is a New York corporation that imports and distributes kitchen products. Rowoco purchased an MKI juicer in September 1983, and in April 1984 Rowoco was approached by the representative of a Taiwanese Trading Company who attempted to interest Rowoco in a Taiwanese produced juicer identical in all visible respects to MKI’s product. Rowoco placed its first order for the Taiwanese product (“Rowoco Juicer”) in April, 1984. Rowoco has now contracted with the Taiwanese Trading Company for 5,400 juicers and plans to distribute the juicers nationwide, although it has as yet not undertaken to advertise the juicer in any way other than by including it in Rowoco’s catalogue of over 1,800 items. The President and Vice-President of Rowoco claim to have no knowledge of how the Rowoco juicer is produced, although there has been no denial of MKI’s claim that the “Mighty OJ” was used as a “plug” for a mold from which the Rowoco juicer was created, and MKI has introduced affidavit evidence to that effect. Certain pieces of the Rowoco juicer, however, have not been produced from molds of the Mighty OJ. The Rowoco juicer is packaged in a seven-inch cube box which pictures two juicers on each of four facades, surrounded by a glass of orange juice and various citrus fruits. The box is labeled “Rowoco Juicer,” with the “Rowoco” lettering in one-quarter inch high white letters against a dark green background at the top of the box, and the “Juicer” lettering in one and one-half inch high white lettering against a green background immediately below. Although the Rowoco juicer itself does not have any permanent source identification, it is sold with a three and one-half inch long white piece of tape with the red printed words “The Rowoco Juicer” attached on the front of the mechanism. This label is attached to the removable receptacle into which oranges are placed and presumably will be detached as the juicer is used. Unpacked and subsequent to being washed, the two products are therefore identical in all observable respects. Conclusions MKI in this action seeks a preliminary injunction and must persuade the court that: 1) either a) there is a likelihood of success on the merits or b) there are sufficiently serious questions going to the merits to make them a fair ground for litigation and the balance of hardships tips de cidedly in favor of the moving party, and 2) irreparable harm will result in the absence of the injunction. United States v. Bedford Assoc., 618 F.2d 904, 912 (2d Cir.1980), Caulfield v. Board of Ed. of New York City, 583 F.2d 605, 610 (2d Cir.1968). 1. Success on the Merits A. Lanham Act For a product’s configuration and design to be protectable under § 43(a) of the Lanham Act the moving party must establish 1) that the design features allegedly copied are non-functional and 2) that these design features had acquired secondary meaning in the marketplace by which the product is identified with the maker or producer of the goods. Industria Arredamenti Fratelli Saporiti v. Chas. Craig, Ltd., 725 F.2d 18, 222 U.S. P.Q. 754, 755 (2d Cir.1984); Vibrant Sales v. New Body Boutique, 652 F.2d 299, 303 (2d Cir.1981), cert. denied, 455 U.S. 909, 102 S.Ct. 1257, 71 L.Ed.2d 448 (1982). A feature of a product which is “functional” cannot constitute a protectable trade design under § 43(a) of the Lanham Act. Dallas Cowboy Cheerleaders Co., Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200 (2d Cir.1979); Upjohn Co. v. Schwartz, 246 F.2d 254 (2d Cir.1957). Defining those aspects or attributes of a design that are functional, and therefore capable of replication, rather than arbitrary, and therefore protected, is the necessary starting point. The Supreme Court has stated that a functional feature is one that “is essential to the use or purpose of the article or [that] affects the cost or quality of the article.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 850-51 n. 10, 102 S.Ct. 2182, 2186 n. 10, 72 L.Ed.2d 606 (1982). In Industria Arredamenti, supra, the Second Circuit elaborated on these terms, and specifically defined the relationship between aesthetic and functional elements of a design: It is not functional if it is an “arbitrary embellishment — primarily adopted for purposes of identification and individuality,” but “an important ingredient in the commercial success of the product” is clearly functional. Ives Laboratories, Inc. v. Darby Drug Co., 601 F.2d 631, 643, 202 USPQ 548, 558 (2d Cir.1979). In the context of § 43(a) of the Lanham Act, “functional” is not synonymous with “utilitarian,” nor is it the antonym of “ornamental.” Indeed, ornamentation may be the thing that sells the product. Thus, it was held that the words “Damn I’m Good,” inscribed on flat metal bracelets, were functional and could not be treated as a trademark. Damn I'm Good, Inc. v. Sakowitz, 514 F.Supp. 1357, 212 USPQ 684 (S.D.N.Y.1981). Similarly, the design on hotel china is the principal thing that attracts potential buyers, for it makes the china aesthetically appealing. As an important ingredient in the saleability of the goods, it is functional and may not be treated as an unregistered trademark. See Pagliero v. Wallace China Co., 198 F.2d 339, 95 USPQ 45 (9th Cir.1952). Id. 725 F.2d 18, 222 U.S.P.Q. at 755-56. MKI in its argument has emphasized exclusively the first aspect of the Supreme Court’s definition of functionality — that bearing on the feature’s being essential to the use of the article. MKI has consequently argued that the rack and pinion mechanism which is the heart of the juicer can be encased in an unlimited array of facades. There is little doubt that the choice of a particular casing for the rack and pinion system is not mandated by the mechanism itself. Indeed, other juicers are on the market in this country that feature the same rack and pinion gear system and are identical in general layout and mechanical operation yet have markedly different appearances. Were I free to do so, I would be tempted to accept this definition of functionality in the context of Lanham Act claims, and I would find that the Rowoco juicer copies non-functional elements of the MKI juicer. The Second Circuit definition of “functional,” however, has recently emphasized in Industria Arredamenti, supra, the scope of the second element stated by the Supreme Court — the aesthetic contribution a feature makes to the quality of a product. Therefore, just as a pattern on china or the lack of a seam on a sofa constitute merely aesthetic attributes of the product, yet are considered functional because they contribute to the saleability of the good, so the modern, robotesque appearance of the MKI juicer must be considered a functional attribute of the product. As such it may not become an unregistered trademark whose replication is unlawful under § 43(a) of the Lanham Act. Although the finding that the attributes of the Mighty OJ that were copied were functional would be sufficient to dispose of the Lanham Act claim, the conclusion is buttressed by the further finding that no secondary meaning has been acquired by MKI’s product. The doctrine of secondary meaning holds that “a descriptive or geographical mark receives protection against copying only if consumers have come to associate it with a particular manufacturer or source. When this association is established and the mark has thus acquired secondary meaning, a second comer is barred from using it because such use is virtually certain to create confusion in the public mind as to the source of the product.” Perfect Fit Industries, Inc. v. Acme Quilting Co., 618 F.2d 950, 953 (2d Cir.1980), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 71 (1983). The connection that the consumer must recognize and value is that between the product and a particular producer. In finding such secondary meaning in another context the Second Circuit concluded that “[b]y secondary meaning we mean that romance readers associate the Harlequin Presents cover with a particular series and publisher ... Harlequin’s extensive national advertising, its phenomenal sales success, and the results of a consumer survey indicate that romance readers correlate the Harlequin Presents cover with Harlequin and the Harlequin Presents Series.” Harlequin Enterprises Ltd. v. Gulf and Western Corp., 644 F.2d 946, 949-50 (2d Cir. 1981). Judge Hand wrote that for a party to demonstrate secondary meaning it was necessary that it be demonstrated that “the appearance of his wares has in fact come to mean that some particular person — the plaintiff may not be individually known— makes them, and that the public cares who does make them, and not merely for their appearance and structure.” Crescent Tool Co. v. Kilborn & Bishop Co., 247 F. 199, 300 (2d Cir. 1917). Proof of secondary meaning is consequently difficult, since it is necessary to establish a public desire for the product of a particular manufacturer. Popularity and sales alone cannot establish this secondary meaning, and advertising expenditures are demonstrative only of an effort to establish secondary meaning, not success of the effort. Eli Lilly and Co. v. Revlon, Inc., 577 F.Supp. 477, 483 (S.D.N. Y.1983); Ralston Purina Co. v. Thomas J. Lipton, Inc., 341 F.Supp. 129, 134 (S.D.N. Y.1972). Although copying of a product is considered evidence of secondary meaning, Harlequin, supra, at 950, assuming without deciding that such is the ease, MKI has not submitted evidence that establishes an affirmative link in the public mind to the particular producer. Moreover, the advertising in catalogues and newspapers submitted as exhibits by the parties shows that the name of MKI was often eliminated or if present was only barely visible. The advertisements focused on the “appearance and structure” of the juicer only. The product itself does not have MKI’s name on it, and the box in which the juicer is packaged likewise emphasized the structure of the object, not the name of the producer. On these facts, I conclude that MKI has failed to demonstrate that the juicer has acquired secondary meaning. Because an examination of the likelihood of confusion necessitates a prior finding that the product at issue has acquired secondary meaning, see Eli Lilly, supra, at 482-83, Vibrant Sales, supra, at 304, the issue of consumer confusion need not be dealt with at length. It is worth observing, however, that Rowoco’s juicer does have a label — though temporary — affixed to it and the packaging for the Rowoco juicer clearly exhibits the name Rowoco. Such labeling has been held in certain circumstances sufficient to eliminate fears of consumer confusion. See Bose Corporation v. Linear Design Labs, Inc., 467 F.2d 304 (2d Cir. 1972); Le Sportsac, Inc. v. Dockside Research, Inc., 478 F.Supp. 602, 609 (1979). I conclude that MKI has not demonstrated either likelihood of success on the merits or serious questions providing a basis for litigation with respect to the Lanham Act claim. Neither the copying of non-functional elements nor the acquisition of secondary meaning in the marketplace have been established. B. New York Statutory and Common Law Claims

1569071-13883

ORDER OF COURT ON MOTION FOR NEW TRIAL AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT. HOOPER, District Judge. The above defendant waived a jury trial and the case was tried to the Court. At the conclusion of the evidence and arguments the Court (Tr. 128, et seq.) announced that a judgment of guilty woúld be entered, which was done. However, after a study of the transcript of evidence and the reading of many decisions cited by counsel for defendant in their comprehensive briefs, this Court feels that there exists a serious and reasonable doubt as to the willful intent of defendant to violate the law. The Court is further of the opinion that the defendant, prior to his classification as 1-A let it be known to the Selective Services authorities that he claimed to be a conscientious objector, but he was not thereupon furnished by the draft board with the proper form with reference to his claim for such exemption, nor was he ever advised of his rights by the draft board or its clerk, or by any other person nor was he ever given a hearing on said claim. This Court is ruling that the evidence does not show a willful intent upon the part of the defendant in his refusal to be inducted, as the defendant had on at least three occasions prior to the attempted induction notified the local board that he was claiming to be a conscientious objector. This Court is also ruling that defendant had in writing^ sufficiently made known to the local ^ board that he desired to claim exemption as a conscientious objector, but the board did not furnish him with Form 150 on which to amplify his claim, nor did the board inform him that he had a right to a hearing thereon, and no hearing was ever had. The two questions above stated will be discussed in order. (1) The indictment charged in substance that defendant “willfully and knowingly did fail and neglect * * * to comply with an order of his local board to * * * submit to induction into the Armed Forces of the United States, in violation of 50 App. U.S.C., § 462.” Defendant registered as required by law and did report subject to the order of his local board, but declined to step forward and submit to induction for the reason, then expressed, that he was a member of Jehovah’s Witnesses and was a conscientious objector. The two questions above referred to are closely connected. The reasonable doubt as to defendant’s willful intent is based upon the fact that he had on three occasions made known to the local board his desire to claim classification as a conscientious objector, the third occasion being the time when he was directed to step forward for induction. His contention that he had sufficiently claimed such a classification but had not been heard thereon, is based upon practically the same facts. The following is a short summary as to what passed between the defendant and his local board. On January 31, 1964 defendant with the assistance of the clerk of the board completed the Selective Service System Classification (Form 110) wherein he wrote the following: “Have been raised in the faith of Jehovah’s Witnesses but am not an active preacher.” He did not, however, write such language in that portion of the questionnaire where the board considers he should have written it. He was thereupon classified as 1-A, he was not advised or requested to fill out Form 150, nor was he questioned as to his intent in putting the above language in his questionnaire. At his own request his registration was transferred to a local board in California. When notified to appear there he failed to appear for reasons which were accepted by the local board. He then telephoned the clerk of his local board in Calhoun, Georgia for directions, and he was advised that he might report for induction at Calhoun, Georgia as soon as his local board at that point received back his papers from California. In the above conversation with the clerk of the local board of Calhoun, Georgia the defendant stated: " * * * that he did not believe in fighting, that he never got into a fight and respected his mother’s religion, Jehovah Witness.” (Tr. 30) This was the second occasion on which defendant notified Selective Service that he was in effect claiming classification as a conscientious objector, but again he was not requested to execute and file Form 150, nor was anything said about giving him a hearing on said claim. On November 22, 1965, the papers having been forwarded from California to Calhoun, Georgia and defendant having been notified to report for induction at the latter place, he appeared for induction. He was privately informed that his refusal to step forward when order to do so would constitute a felony, but he was not informed either privately or officially as to what action, if any, had been taken on his application for reclassification. Therefore, when directed to step forward he did not do so, with the following explanation: “They called me to step forward and I told them of my beliefs, that I couldn’t. “Q: What did they say? “A: Well, they talked to me again, and I forget the words that they used for the crime, and they asked me to step forward once more. I told them the same, the same answer, I could not.” (Tr. 97) This was the third occasion on which Selective Services was notified that defendant was claiming reclassification as a conscientious objector, but again he was not advised to execute and file Form 150, nor was he offered any hearing as to his claim, nor was he advised that any claim which he might have considered he had made was overruled. Defendant was indicted and consulted an attorney, whereupon for the first time he was advised concerning the Selective Services regulations and procedures, and on advice of counsel obtained Form 150, executed, and filed it. “The sanctions of the Act are directed only against one ‘who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title * * * ’ “[T]he statute requires something more than mere failure; for the accused must ‘knowingly fail or neglect to perform’ a statutory duty.” This statute means that the “usual criminal intent” must be proven. See Graves v. United States, 252 F.2d 878, and cases cited. Since an actual intent was a necessary element of guilt whether the defendant, under all the circumstances should have known better, is immaterial. (2) As stated above, the defendant when completing Selective Service System Classification (Form 110) with the assistance of the clerk of the local board wrote the following: “ * * * have been raised in the faith of Jehovah’s Witnesses, but am not an active preacher.” This could not have conveyed to the local board any meaning other than that defendant, while not claiming total exemption from military service on account of being a minister, nevertheless desired to claim a classification as a conscientious objector. The distinction between the two is a matter of common knowledge through several recent wars, and has frequently been pointed out by the courts. See Williams v. United States, 216 F.2d 350 (5 Cir.), see p. 351. Similar expressions were made by the defendant in his phone call from California to the clerk of the local board, and also at the time when he reported for induction but failed to step forward, giving the foregoing as his reason for not doing so. With knowledge of the foregoing desire of the defendant, however, no one advised him that he should make formal application for such classification by the use of Form 150, which was not furnished to him. In the case of Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453, a member of Jehovah’s Witnesses was convicted for refusal to submit to induction into the Armed Forces, but the Supreme Court held that the failure of the Department of Justice to furnish him with the fair resume of all adverse information contained in the F.B.I. reports as required by law, deprived him of the fair hearing required by the Act, a fundamental safeguard, and he need not specify the precise manner in which he would have used this right— and how such use would have aided his cause — in order to complain of the deprivation. It is therefore unnecessary for the defendant to prove, in this case, that he was a bona fide conscientious objector, as that is a matter which he may, and must, prove to the satisfaction of the local board. In the case cited the court stated: “ * * * the notice reproduced in the Government’s brief does not, in our view, convey clearly to the layman the idea that he must make a request for the resume prior to the hearing or forever waive his rights in this respect. There is nothing in either the statute or the regulations authorizing such a waiver.” And, speaking of regulations, it is important to observe that at the time in question there was in effect a regulation (32 C.F.R. § 1621.13) which provided as follows: “When a registrant’s Classification Questionnaire (Selective Service System Form No. 100) omits needed in-formatioi., contains material errors, or shows that the registrant failed to understand the questions, the local board may return the Classification Questionnaire (Selective Service System Form No. 100) to the registrant for correction and completion and direct him to return the same so completed and corrected on or before a specified date.” Defendant’s questionnaire (Form 110) did omit needed information and did show that the registrant failed to understand his rights, but the board did not return to him Form 100 to be amplified, nor direct him to attach thereto Form 150. In the case of United States v. Crawford, D.C., 119 F.Supp. 729, the court said in part: “It is clear that exemption from military service is not a constitutional right but merely a matter of legislative grace. The statute, however, expressly provides that an individual claiming conscientious objection is entitled to have the character and good faith of his objections evaluated at a hearing before the local board and, if his claim is not sustained, by appeal to an appropriate appeal board and reference of the case to the Department of Justice for additional hearing.” (See p. 730) It was ruled that since no such hearing was afforded defendant the Government had not met the conditions precedent to a prosecution for draft evasion. In the case of United States v. Greene, 7 Cir., 220 F.2d 792, the court stated: “Selective Service System means just that. It is the sifting and testing process by which individual eligibility, exemption and deferment are determined with Congressional blueprints and enunciated legislative policy. While classification is the democratic method for obtaining military manpower it is not an adversary proceeding between Board and registrant in which the slightest mis-step mechanically penalizes registrants.” (see p. 794) The court ruled (in division 5 of the opinion): “Practical due process would be ignored by approving Greene’s conviction. United States v. Wilson, 7 Cir., 1954, 215 F.2d 443. At no time did Greene have a hearing. To affirm this particular judgment of conviction would leave the National Board an absolute cancelling power insulated against all challenges.” (see p. 794) In the case of United States v. Underwood, D.C., 151 F.Supp. 874, the court stated: “Regulation 1625.2 is clear. We believe § 6(j) of the Act, 50 U.S.C.A. Appendix, § 456(j), is equally clear. That section provides: ‘Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.’ It is plain that a person meeting the conditions of the above section of the Act is not to be subjected to combatant training and service. This privilege is not to be defeated by procedural regulations. Nowhere in the Act does it provide that unless the registrant makes his claim before notice of induction he thereafter waives his right to the privilege. Had Congress so intended, it would have set forth such intention in unmistakable terms.” (p. 876) The court also used the following language which is relevant to the instant case: “Registrants are ‘not thus to be treated as though they were engaged in formal litigation assisted by counsel’. United States ex rel. Berman v. Craig, [3 Cir., 1953] 207 F.2d [888] at page 891. Whenever a registrant in writing makes a request to a Local Board, no matter how ambiguously or un-clearly the request is stated, if it indicates in any way a desire for a procedural right, the writing should be construed in favor of the registrant and the procedural right granted, or the registrant should be contacted by the Board to obtain clarification of what he had in mind when he made the request.” (p. 877) Indeed the technical rule imposed upon this defendant by the local board is more strict than the rules provided by Congress as to litigants in our courts acting without counsel. Even though a litigant in a civil case should refuse to use the services of counsel, when offered to him by the court, nevertheless his action will not be dismissed no matter how inartis-tically his complaint may be stated, but his complaint must be given the benefit of reasonable intendment. Dioguardi v. Durning, 2 Cir., 139 F.2d 774(2). The foregoing policy of the law is amply illustrated in cases where prisoners in a penitentiary desire to invoke a ruling by the courts as to the legality of their confinement. In many cases the courts have ruled that “all pleadings shall be construed so as to do substantial justice.” The Supreme Court has stated: “Meticulous insistence upon regularity in procedural allegations is foreign to the purpose of habeas corpus.” Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686.

4354713-8919

ORDER Harry Powell, an Illinois inmate, appeals the grant of summary judgment against him in this suit under 42 U.S.C. § 1983, asserting that Wexford Health Services, which contracts with the prison to provide medical care, and two Wexford doctors were deliberately indifferent in not referring him to a specialist and ordering physical therapy. The district court concluded that the defendants had not been deliberately indifferent. We affirm. Powell began receiving treatment after injuring his left knee during a basketball game at the Western Illinois Correctional Center. He saw a nurse two days later, complaining of knee pain and difficulty walking and straightening his leg. The nurse gave him a cold compress and Tylenol. Two days after that, Powell saw Dr. Vipin Shah, who recorded no swelling in the knee but noted Powell’s difficulty bending his leg. Dr. Shah prescribed ibuprofen and a warm pack for what he described as Powell’s “soft tissue injury to the left knee.” After Powell received an x-ray two days later, Dr. Shah concluded that the injury was likely caused by an “osteochondral lesion-osteochondral dessi-cans” or possibly a bone fracture. He prescribed ibuprofen, crutches, an Ace bandage, and a knee brace for six months; and he recommended that Powell be assigned to a first-floor cell and a low bunk. Dissatisfied with the treatment, Powell filed successive grievances about his knee pain. About two months later, Powell’s counselor followed up on one of the grievances with' a written response: “According to HCV-Dr. Shah, patient has been seen multiple times, treated with plan suggested by utilization management, knee brace, rest, [and] immobilization. If this does not help, he will be referred to ortho.” Over the next eight months and 21 appointments, Dr. Shah treated Powell for varying levels of knee pain. At one of the earlier appointments, a second x-ray showed results similar to the first, and Dr. Shah continued to treat Powell with pain medication and a knee brace. Later, after receiving an MRI, Powell says that he was told by the technician that he would need arthroscopic surgery. Dr. Shah, however, concluded from the MRI that Powell’s ligaments were intact and his knee was stable; he therefore continued prescribing the same course of treatment, though varying the doses and strength of the pain medication. Six months intp his treatment, Powell asserts, Dr. Shah told him that he “has done all he is going to do for [Powell].” Later that month, Dr. Shah recommended exercise for Powell’s recent weight gain. And about two months after that, Dr. Shah advised “relaxation behavior” for his knee pain. Four months after his last appointment with Dr. Shah, Powell saw another prison doctor, Dr. Thomas Baker, for an ibuprofen refill and because his knee sleeve had loosened. Dr. Baker reviewed Powell’s records, ordered blood work to monitor any effects from Powell’s prolonged use of ibuprofen, and then essentially continued the same treatment plan prescribed by Dr. Shah. Powell saw Dr. Baker for three more appointments until he was transferred to another prison the following year. After his transfer, Powell sued Dr. Shah and Dr. Baker, arguing that they treated his knee injury deficiently and caused him prolonged pain, suffering, and emotional distress. He asserted that the doctors should have referred him to an orthopedic surgeon and ordered physical therapy. He also sued Wexford, asserting that its policy of restricting referrals to outside specialists to save money was unconstitutional. The case proceeded to discovery, and Powell filed a motion to recruit counsel, which the court denied, finding that he was competent to litigate his claims. Ten months later Powell filed a second motion to recruit counsel, which the court also denied. The parties then filed cross-motions for summary judgment, after which Powell sought the appointment of an expert medical witness to explain why orthopedic surgery was necessary. The court denied Powell’s request, finding that he had failed to establish the need for an expert and, further, he essentially was seeking, not a neutral expert, but an expert to testify on his behalf. The district court then granted summary judgment in favor of defendants. The court found that none of the evidence cited by Powell created a fact question regarding whether the doctors’ treatment decisions rose to the level of deliberate indifference. First, with regard to the counselor’s response to his grievance that Powell would be “referred to ortho,” the court discounted the response as irrelevant because Powell had not shown that the counselor had medical training or knowledge or even authority to recommend that Powell see an orthopedic specialist. Second, with regard to Powell’s statement that the MRI technician told him that he would need surgery, the court rejected that evidence as inadmissible hearsay and, in any event, it would not be sufficient to defeat summary judgment because it referred merely to a difference of medical opinion. And third, regarding Powell’s “subjective belief’ that he should, be referred to a specialist, the court found that this “supposition” did not constitute evidence that the doctors’ treatment was blatantly inappropriate. Finally, the court concluded that Powell failed to produce any evidence that Wexford maintained an unconstitutional policy that caused him to suffer a constitutional deprivation. Powell then filed a postjudgment motion to reconsider, asserting that he could prove the inadequacy of his treatment through newly discovered evidence: the opinion of an orthopedic surgeon — whom he saw after re-injuring his knee at another prison — that he should have had surgery when he first injured his knee. The district court construed Powell’s motion to reconsider as brought under Rule 59(e) and denied it, finding that the evidence concerned a new, later knee injury and was not related to the treatment at issue for his knee injury two years earlier. On appeal Powell challenges the grant of summary judgment and specifically the court’s discounting of evidence that he submitted. He argues that the district court erroneously attributed the statement that he would be “referred to ortho” to his counselor rather than Dr. Shah, and that this statement — in addition to his other evidence — shows that the doctors knew that they should have referred him to a specialist yet refused to do so. The district court did not err in concluding that Powell failed to create a fact question over whether the doctors were deliberately indifferent. Although continuing an ineffective treatment plan may constitute deliberate indifference, Ortiz v. Webster, 655 F.3d 731, 735 (7th Cir.2011); Berry v. Peterman, 604 F.3d 435, 441 (7th Cir.2010), the treatment decision must be “so significant a departure from accepted professional standards or practices that it calls into question whether the doctor actually was exercising his professional judgment.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.2014); see Holloway v. Del. Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir.2012); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.2006). Even if the statement that Powell would be “referred to ortho” came from Dr. Shah rather than his counselor, the district court nevertheless correctly concluded that Powell’s evidence did not support his contention that his doctors abandoned their professional judgment when they regularly monitored him but did not refer him to a specialist or order physical therapy. Powell cannot point to any evidence that calls into question Dr. Shah’s exercise of professional judgment—in concluding from two x-rays, an MRI, and multiple check-ups that Powell’s knee was stable and could be treated with a knee brace, varying doses and strengths of pain medication, and exercise—or Dr. Baker’s, in continuing Dr. Shah’s regimen and prescribing the same treatment after examining Powell’s medical records and ensuring through blood testing that he was not suffering any adverse effects from the medication. This record supports the district court’s conclusion that Powell’s evidence amounted to a mere disagreement with his doctors’ treatment decisions and was therefore insufficient to establish deliberate indifference. See Pyles, 771 F.3d at 409. Powell also argues that summary judgment in favor of Wexford was error because Dr. Shah stated that he would have to consult Wexford before referring him to an orthopedic surgeon since “money can be an issue, cause [sic] there is not money,” and Wexford has a “public record of unconstitutional policies.” But as the district court correctly determined, not only-is the evidence speculative, but Wex-ford cannot be held liable for damages if, as here, Powell cannot show an underlying constitutional violation. See Pyles, 771 F.3d at 412; Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir.2013).

3663980-13454

PER CURIAM: Morris Sears appeals the district court’s decision affirming the bankruptcy court’s order declaring that his debts to the United States arising out of ten surety bonds are not dischargeable because he made false statements to induce the government to accept him as a surety. I. Federal law requires contractors on certain federal construction projects to provide performance and payment bonds to protect the government in case the contractor defaults on his obligations. See 40 U.S.C. § 3131. Between October 2005 and November 2008 Sears, doing business as ABBA Bonding Company, issued several surety bonds for various government projects. Sears would generally receive a four percent commission for issuing the bonds. Sears was required to submit a separate Affidavit of Individual Surety in which he pledged collateral to secure each of the bonds. Those affidavits are one-page form documents provided by the government. Each affidavit contains the following statement: I, the undersigned, being duly sworn, depose and say that I am: (1) the surety to the attached bond(s); (2) a citizen of the United States; and of full age and legally competent.... I recognize that statements contained herein concern a matter within the jurisdiction of an agency of the United States and the making of a false, fictitious or fraudulent statement may render the maker subject to prosecution under title 18, United States Code Sections 1001 and 494. This affidavit is made to induce the United States of America to accept me as surety on the attached bond. Below that statement, the affidavit provides that “[t]he following is a true representation of the assets I have pledged to the United States in support of the attached bond.” Below that are two subparts. Subpart (a) asks the affi-ant to list “Real Estate (Include a legal description, street address and other identifying description; the market value; attach supporting certified documents including recorded lien; evidence of title and the current tax assessment of the property....)” For each of the affidavits at issue in this case, Sears filled in that section by listing “Investment Real Estate Properties with clear title” followed by some combination of the following properties: (1) Lots 5, 6, 7, & 8 on Ro-salia Ave., Lillian, Alabama, (2) 4719 Albatross Drive, Granbury, Texas, and (8) a property in Baton Rouge, Louisiana. Sears failed to attach any of the supporting documents requested in subpart (a) in all of the affidavits. Subpart (b) of that same section asks the affiant to include “Assets other than real estate (describe the assets, the details of the escrow account, and attach certified evidence thereof).” On several of the affidavits at issue, Sears left that subpart blank, indicating that he was only pledging real estate for those bonds. On others he referred to an attached “Financial Statement” and stated “ABBA Bonding Net Worth” followed by an estimation of $126,195,665.61. The next section of the affidavit asks the affiant to “[i]dentify all mortgages, liens, judgements [sic], or any other encumbrances involving subject assets including real estate taxes due and payable.” On each affidavit, Sears responded “None at this time.” The affidavit also requires the affiant to “[fidentify all bonds, including bid guarantees, for which the subject assets have been pledged within 3 years prior to the date of execution of this affidavit.” On each affidavit, Sears responded, “0.” Sears signed each of the affidavits and had them notarized. Although the ten bond surety agreements at issue were approved by the government’s contracting officers, the government later found out that Sears did not actually own the properties in Granbury, Texas or Baton Rouge, Louisiana and that he did not hold clear title to the Lillian, Alabama properties. Sears had also pledged properties more than once for his various bond issuances, despite his sworn statements to the contrary. And although Sears swore in his affidavit that ABBA Bonding had a net worth of over $120 million, he admitted at his 11 U.S.C. § 341 meeting that ABBA Bonding was never worth that much. Sears performed his obligations as surety under nine of the bonds at issue, investigating the government’s claims of contractor default and paying claims when required. After Sears filed for bankruptcy, one of the contractors for whom Sears was a surety defaulted on his contract, which triggered Sears’ obligations under the surety agreement. Because Sears was already in bankruptcy, the government could not collect under Sears’ bond and was required to hire another contractor to finish the job at an additional cost and to pay a subcontractor whom the original contractor had failed to pay. The government filed a proof of claim for $1,055,724.10 in Sears’ bankruptcy case for its losses caused by Sears’ failure to perform under his bond. In July 2009 the government filed an adversary proceeding challenging the dis-chargeability of Sears’ debts to it, contending that Sears induced it to accept him as surety using false pretenses, false representations, or actual fraud under 11 U.S.C. § 523(a)(2)(A). The government also asked the bankruptcy court to declare as nondischargeable any debt Sears owes to the government for the commissions it paid to him for the ten surety bonds. Specifically, the government contended that those commissions should be refunded to it because the bonds it received were essentially worthless because they were not properly collateralized. The bankruptcy court granted a judgment declaring that the debts Sears owed for the defaulted bond and for the commissions were nondischargeable. The court concluded that Sears made false represen tations with the intent to deceive the government, that the government relied on those misrepresentations, that the reliance was justified, and that the government sustained a loss as a result of Sears’ misrepresentations. The district court affirmed the bankruptcy court’s order. II. A debtor cannot discharge a debt for money “to the extent [it was] obtained by false pretenses, a false representation, or actual fraud....” 11 U.S.C. § 523(a)(2)(A). To prove that a debt is nondischargeable under § 523(a)(2)(A), a creditor must show that “(1) the debtor made a false representation to deceive the creditor, (2) the creditor relied on the misrepresentation, (3) the reliance was justified, and (4) the creditor sustained a loss as a result of the misrepresentation.” In re Bilzerian, 153 F.3d 1278, 1281 (11th Cir.1998). “We review de novo the legal determinations of the bankruptcy court and the district court, but we review only for clear error the bankruptcy court’s factfindings.” In re Cassell, 688 F.3d 1291, 1294 (11th Cir.2012) (citations omitted). A finding is clearly erroneous when, after reviewing all the evidence, the court is left with the definite and firm conviction that the finding was wrong. Merisier v. Bank of America, N.A., 688 F.3d 1203, 1211 (11th Cir.2012). A. Sears contends that the bankruptcy court clearly erred in finding that he intended to deceive the government. The court found that Sears’ intent to deceive could be inferred from the volume and pattern of his misrepresentations. It pointed out that Sears repeatedly pledged property he did not own in support of his surety bonds and consistently misrepresented the state of the title of the properties he pledged as collateral. It also reasoned that Sears must have known that he was pledging the same properties as bond collateral in affidavits executed within days or months of each other, despite the fact that he denied doing so in his affidavits. Sears points out that he actually performed his obligations under some of those bonds and argues that his performance should “negate” the other evidence of his intent to deceive. We disagree. As the bankruptcy court reasoned, Sears made fraudulent misrepresentations so that the government would accept him as surety. The fact that he later fulfilled some of his obligations does not “negate” his initial intent to deceive. The bankruptcy court’s factual finding that Sears intended to deceive the government is not clearly erroneous. B. Sears contends that the bankruptcy court erred in concluding that the government’s reliance was justified. “Justifiable reliance is gauged by an individual standard of the plaintiffs own capacity and the knowledge which he has, or which may fairly be charged against him from the facts within his observation in the light of his individual case.” In re Vann, 67 F.3d 277, 283 (11th Cir.1995) (quotation marks omitted). “[I]t is only where, under the circumstances, the facts should be apparent to one of plaintiffs knowledge and intelligence from a cursory glance, or he has discovered something which should serve as a warning that he is being deceived, that he is required to make an investigation of his own.” Id. The bankruptcy court reasoned that the misrepresentations “were not apparent to the contracting officers” who reviewed Sears’ affidavits because those affidavits were “completely filled out” and submitted under oath, as attested to by a notary. Sears contends that the district court clearly erred in concluding that the affidavits were complete on their face. He points out that the section of the affidavit that asked the affiant to list the pledged real estate was followed by a parenthetical statement requesting certain supporting documents, such as a recorded lien, evidence of title, and the current tax assessment of the property. He argues that because he failed to attach the supporting documents, the affidavits were facially incomplete. Although Sears failed to supply documents to support his sworn statements, it was not apparent from a “cursory glance” at his affidavits that they were fraudulent. Sears answered every question on each of the affidavits, which were signed and notarized. He listed the property to be pledged as collateral for the bonds. When asked whether there were any liens, judgments, or other encumbrances on that property he responded, “None at this time.” When asked whether the property had been pledged in support of any other bonds, he indicated that it had not. Given those facts, we cannot say that the bankruptcy court clearly erred in finding that the form affidavits submitted by Sears were completely filled out. Moreover, Sears’ own failure to provide documentation to support his fraudulent statements should not allow him to avoid his obligation to the party he lied to. See, e.g., Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367, 127 S.Ct. 1105, 1107, 166 L.Ed.2d 956 (2007) (“The principal purpose of the Bankruptcy Code is to grant a fresh start to the honest but unfortunate debt- or”) (quotation marks omitted) (emphasis added); In re St. Laurent, 991 F.2d 672, 680 (11th Cir.1993) (“[T]he fraud exceptions to discharge exist to punish the debt- or for committing fraud.”). C. Sears contends that the government failed to show that its losses resulting from his default on one of the bonds were caused by his misrepresentations about the collateral supporting that bond. He argues that the government’s losses were caused by the failure of the contractor who defaulted, and not his own default on the bond. He is wrong. The purpose of a surety bond is to protect the government in the event the contractor defaults. Although Sears was not obligated to perform until the contractor defaulted, his failure to perform when he became obligated to do so caused the government’s loss. The bankruptcy court did not clearly err in finding that but for Sears’ misrepresentations about the collateral supporting the bonds, the government never would have approved him as surety. And if he had never been approved as surety, then he could not have defaulted on the bond, causing the government to expend over one million dollars to hire a new contractor to complete the job and pay a subcontractor whom the original contractor had failed to pay. D. Sears also contends that the bankruptcy court erred in concluding that the four percent commissions that the government paid on each of the ten bonds constitutes an “actual loss.” He notes that he did not default on nine of the bonds and argues that “[njeither the Government nor the lower courts cite any authority for the novel proposition that the payment of bond [commissions] to a surety, who undisputedly acts as surety and is obligated on the bonds, and in fact pays hundreds of thousands of dollars defending, settling and paying claims under his bonds, constitutes an actual loss merely because the bonds were not collateralized as expected.” For a debt to be nondischargeable under § 523(a)(2)(A), a creditor must show that it “sustained a loss as a result of the misrepresentation.” In re Bilzerian, 153 F.3d at 1281. Although Sears made misrepresentations about the collateral supporting nine of the bonds at issue in this case, the government has not shown that it suffered a loss as a result of those nine misrepresentations because Sears never defaulted on those bonds. As the bankruptcy court noted, Sears “investigated, paid, attempted to pay, and/or defended many of the claims made pursuant to his bond issuances.” Because the government never had to look to the collateral supporting those nine bonds, Sears’ misrepresentations concerning the collateral supporting those bonds did not cause the government any losses.

10530755-5153

ORDER OF COURT Upon consideration of the government’s petition for rehearing of the court’s order granting sanctions in the amount of $5,000, it is ordered that the petition be denied. The government appealed an interlocutory order in a bankruptcy case. In an unpublished opinion, we affirmed the district court’s determination that the order had become moot. 879 F.2d 853. Thereafter, the debtor-appellee moved for imposition of sanctions against the United States, contending that the appeal had been frivolous from the start. Appellee’s original motion requested attorney’s fees in the nature of a sanction in the amount of $25,713.63. The request was grounded on 28 U.S.C. § 2412(b) in conjunction with 28 U.S.C. § 1912 and Federal Rule of Appellate Procedure 38. Section 2412(b) provides, Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award. Section 1912 provides, Where a judgment is affirmed by the Supreme Court or a court of appeals, the court in its discretion may adjudge to the prevailing party just damages for his delay, and single or double costs. Rule 38 provides, If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee. In its opposition to the motion for sanctions, the government did not directly address appellee’s argument that the provisions quoted above authorized a grant of attorney’s fees as sanctions. Now, in its petition for rehearing, the government for the first time argues that the waiver of sovereign immunity contained in section 2412(b) does not extend to an award of attorney’s fees under section 1912 and Rule 38. According to the government, section 2412(b) would waive sovereign immunity so as to allow the awarding of fees against the United States only in the case of statutes that, in haec verba, explicitly provide for awards of “attorney’s fees.” Since neither section 1912 nor Rule 38 use the words “attorney’s fees,” the government contends that neither provision “specifically provide[s] for such an award” within the meaning of section 2412(b). We believe the government’s interpretation of section 2412(b) is overly restrictive and would conflict with the statute’s purpose. To be sure, neither section 1912 nor Rule 38 use the term “attorney’s fees.” However, they specifically empower courts to award “just damages,” and courts have consistently interpreted that term to include attorney’s fees. Natasha, Inc. v. Evita Marine Charters, Inc., 763 F.2d 468, 472 (1st Cir.1985). See also Advisory Committee Note to Fed.R.App.P. 38 (“While both [section 1912] and the usual rule on the subject by courts of appeals ... speak of ‘damages for delay,’ the courts of appeals quite properly allow damages, attorney’s fees and other expenses incurred by an appellee if the appeal is frivolous with out requiring a showing that the appeal resulted in delay.”) (citing cases). It is clear from the legislative history of section 2412(b) that the latter was intended to make the United States liable for attorney’s fees and expenses to the same extent and under the same circumstances as private parties would be liable for fees and expenses. The House Report on section 2412(b) states that: Section 2412(b) permits a court in its discretion to award attorney fees and other expenses to prevailing parties in civil litigation involving the United States to the same extent it may award fees in cases involving other parties.... The United States would ... be liable under the same standards which govern awards against other parties under Federal statutory exceptions [to the American Rule against awarding attorney’s fees], unless the statute expressly provides otherwise.... This subsection reflects the belief that at a minimum, the United States should be held to the same standard in litigating as other parties and that no justification exists for exempting the United States from fee awards in these limited situations. H.R. Report No. 1418, 96th Cong., 2d Sess. 17, reprinted, in 1980 U.S.Code Cong. & Admin.News 4953, 4984, 4996. See also Adamson v. Bowen, 855 F.2d 668, 672 (10th Cir.1988) (“Congress’ key focus [with section 2412(b) ] was that government and private litigants become and remain subject to fees and expenses in a parallel manner.”). Accordingly, since section 1912 and Rule 38 plainly empower courts to award “attorney’s fees” to private litigants, they are statutes “specifically providing] for such an award” within the meaning of section 2412(b). Any other interpretation would be inconsistent with the legislative purpose of section 2412(b).

7653834-22847

OPINION STEIN, District Judge. Plaintiffs in these 16 consolidated actions are approximately 2,000 disabled former New York City police officers who allege that the practice of providing supplemental benefits to police officers who retire after twenty years of service while denying those same benefits to officers who retire because of a disability discriminates against plaintiffs “by reason of’ their disabilities in violation of Titles I and II of the Americans with Disabilities Act (“ADA”), see 42 U.S.C. § 12101 et seq., and section 504 the Rehabilitation Act, see 29 U.S.C. § 791 et seq. Plaintiffs also assert claims pursuant to the Age Discrimination in Employment Act (“ADEA”), see 29 U.S.C. § 621 et seq., and various state laws. Defendants are numerous individuals and entities, who allegedly are responsible for creating, implementing or administering the New York City Police Department benefit programs. Currently before the Court are motions by defendants to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Because plaintiffs are not protected parties and seek preferential treatment rather than nondiscriminatory treatment, plaintiffs’ ADA and Rehabilitation Act claims should be dismissed. Because plaintiffs have failed to file a complaint with the Equal Employment Opportunity Commission, their ADEA claims should be dismissed. Last, because this Court in its discretion declines to exercise supplemental jurisdiction over the plaintiffs’ state law allegations, those claims should also be dismissed. I. BACKGROUND For purposes of this motion, the factual allegations in the complaint are assumed to be true. See, e.g., Annis v. County of Westchester, N.Y., 36 F.3d 251, 253 (2d Cir.1994). Plaintiffs are all disability retirees who receive benefits from the New York City Police Pension Fund and are not eligible to receive certain additional benefits known as “Variable Supplements.” Pursuant to the New York City Administrative Code, a police officer may retire with benefits for a number of reasons; the reason for the retirement will affect the amount of benefits the retiree will receive. See generally Castellano v. Board of Trustees of the Police Officers’ Variable Supplements Fund, 937 F.2d 752, 753 (2d Cir.), cert. denied, 502 U.S. 941, 112 S.Ct. 378, 116 L.Ed.2d 329 (1991). These actions involve three types of retirements: (1) “ordinary disability” retirement; (2) “accident disability” retirement; and (3) “for service” retirement. “Ordinary disability” retirement is available for an officer who is “physically or mentally incapacitated for the performance of duty and ought to be retired.” N.Y.CAdmin.Code § 13-251. “Accident disability” retirement is available for an officer who is physically or mentally incapacitated and that incapacitation is “a natural and proximate result” of police duties. Id. at § 13-252. “For service” retirement is available for officers who retire after serving twenty years on the force. Id. at § 13-246. See also Castellano, 937 F.2d at 753. Plaintiffs all retired with either an “ordinary disability” or an “accident disability.” (Complaint, ¶ 2.) Plaintiffs are therefore ineligible to receive what are known as Variable Supplements, which are payments from either the Police Officer’s Variable Supplements Fund or the Police Superior Officers’ Variable Supplements Fund (collectively, the “Variable Supplements Funds”). See N.Y.C.Admin.Code §§ 13-268, 13-278. The Variable Supplements Funds are funded from the investment earnings of the Police Pension Fund. Any excess earnings in the Police Pension Fund in a given year — calculated as the actual earnings of equity investments less (1) the hypothetical earnings that would have been realized if the equities had instead been invested in fixed income investments and (2) prior year offsets — áre transferred from the Police Pension Fund to the Variable Supplements Funds. See N.Y.CAdmin.Code § 13-232. These Variable Supplements are paid in addition to all other benefits already being received by the retiree, but are paid only to “for service” retirees. N.Y.CAdmin.Code § 13-268(5). They are not paid to “ordinary disability’’ or “accident disability” retirees. Plaintiffs claim that the exclusion of “ordinary disability” and “accident disability” retirees from participating in the payments from the Variable Supplements Funds violates the ADA, the Rehabilitation Act, the ADEA and various state law protections. For the reasons that follow, defendants’ motions to dismiss the complaint are granted. II. DISCUSSION In reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a district court’s role is to assess the legal feasibility of the complaint; it is not to weigh the evidence which might be offered at trial. See Festa v. Local 3, Int’l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir.1990); Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980); Odom v. Columbia Univ., 906 F.Supp. 188, 193 (S.D.N.Y. 1995). In considering the legal feasibility of the complaint, a court may only consider “the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference and matters of which judicial notice may be taken.” Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir.1993); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993). All factual allegations in the complaint must be accepted as true and the complaint must be viewed in the light most favorable to the plaintiff. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). A motion to dismiss should not be granted unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief.” Staron v. McDonald’s Corp., 51 F.3d 353, 355 (2d Cir.1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); Walker v. City of N.Y., 974 F.2d 293, 298 (2d Cir.1992) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)). A. ADA and Rehabilitation Act Claims Plaintiffs allege federal disability discrimination claims pursuant to Title I and Title II of the ADA and section 504 of the Rehabilitation Act. Although each statute provides distinct causes of action, there is significant overlap between them. See Lyons v. Legal Aid Soc’y, 68 F.3d 1512, 1515 (2d Cir.1995) (citing Staron, 51 F.3d at 355-56); Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538, 542 (7th Cir.1995); Collings v. Longview Fibre Co., 63 F.3d 828, 832 n. 3 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 711, 133 L.Ed.2d 666 (1996); Pottgen v. Missouri State High Sch. Activities Assoc., 40 F.3d 926, 930 (8th Cir.1994). Title I of the ADA prohibits discrimination by a “covered entity” against a “qualified individual with a disability because of the disability” in all of the terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a); 29 C.F.R. pt. 1630. Title II of the ADA prohibits a “public entity” from discriminating against “a qualified individual with a disability” because of the disability in “the benefits or the services, programs, or activities” of the public entity. 42 U.S.C. § 12132; 28 C.F.R. pt. 35. Section 504 of the Rehabilitation Act prohibits discrimination by recipients of federal funds against a “qualified individual with a disability” because of the disability “under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Under each of those statutes, in order to state a claim, a plaintiff must allege sufficient facts to show that he or she is a qualified individual with a disability. See, e.g., Flight v. Gloeckler, 68 F.3d 61, 63-64 (2d Cir.1995). Title I of the ADA defines such a person as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The Rehabilitation Act’s definition in the employment context is essentially the same. See Lyons, 68 F.3d at 1515 (quoting 45 C.F.R. § 84.3(k)(1) (1994)); cf. 29 C.F.R. § 1614.203(a)(6). The statutory language and the case law indicate that these provisions do not provide protection for all dis abled individuals; instead, protection is limited to those persons who are “able to meet all of a program’s requirements in spite of [their] handicap.” Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979); Lyons, 68 F.3d at 1514-15; Guice-Mills v. Derwinski, 967 F.2d 794, 797 (2d Cir.1992); Gilbert v. Frank, 949 F.2d 637, 640-42 (2d Cir.1991). Thus, although it may seem “undesirable and perhaps unpalatable,” Parker v. Metropolitan Life Insur. Co., 875 F.Supp. 1321, 1326 (W.D.Tenn.1995), an individual who is totally disabled — that is; unable to perform the essential job functions even with reasonable accommodation — is not entitled to relief under these provisions. See Beauford v. Father Flanagan’s Boys’ Home, 831 F.2d 768, 771 (8th Cir.1987), cert. denied, 485 U.S. 938, 108 S.Ct. 1116, 99 L.Ed.2d 277 (1988); Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 554-55 (D.Kan.1995); Lewis v. Zilog, Inc., 908 F.Supp. 931, 945 (N.D.Ga.1995); Reigel v. Kaiser Found. Health Plan of N.C., 859 F.Supp. 963, 967-69 (E.D.N.C.1994); Cadelli v. Fort Smith Sch. Dist., 852 F.Supp. 789, 797 (W.D.Ark.1993), aff'd oh other grounds, 23 F.3d 1295 (8th Cir.1994); see also August v. Offices Unlimited, Inc., 981 F.2d 576, 582-83 (1st Cir.1992) (applying state disability discrimination statute). Plaintiffs are all physically or mentally incapacitated for the performance of police duties and are receiving disability retirement pensions. No factual issue is raised regarding whether or not plaintiffs can perform the essential functions of a police officer, see Marvello v. Chemical Bank, 923 F.Supp. 487, 491 (S.D.N.Y.1996), and plaintiffs do not assert that they could perform these functions with any level of accommodation. Plaintiffs also do not claim that any disability based discrimination occurred before they became totally disabled. See Esfahani v. Medical College of Pa., 919 F.Supp. 832, 835-36 (E.D.Pa.1996). Accordingly, plaintiffs fail to meet the threshold definition of a- “qualified individual with a disability” as required Title I of the ADA and the Rehabilitation Act and thus lack standing to pursue this action under these provisions. . In the benefits context, the eligibility requirements differ slightly from those required in the employment context. Under Title II of the ADA, a “qualified individual with a disability” is “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements for ... participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131. The Rehabilitation Act imposes a similar standard, providing that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of his or her disability, be excluded from participation in the benefits of, or subjected to discrimination under any program receiving Federal financial assistance.” 29 U.S.C. § 794(a). In order to pursue this type of claim, an individual must show that he or she meets the essential eligibility requirements for the benefit sought. See Sandison v. Michigan High Sch. Athletic Ass’n, Inc., 64 F.3d 1026, 1034 (6th Cir.1995); Pottgen, 40 F.3d at 930-31; Grubbs v. Medical Facilities of Am., Inc., 879 F.Supp. 588, 590 (W.D.Va.1995); Coleman v. Zatechka, 824 F.Supp. 1360, 1368 (D.Neb.1993). A requirement of a program is not, however, considered to be “essential” if a “reasonable accommodation” would enable an individual to qualify for the benefit. See Pottgen, 40 F.3d at 929; Johnson v. Florida High Sch. Activities Ass’n, Inc., 899 F.Supp. 579, 584 (M.D.Fla.1995). Accordingly, the “reasonableness” of an accommodation and the “essentialness” of an eligibility requirement are inextricably intertwined and must be examined together. When reviewing a challenge to the eligibility requirements of a program, á court must first review each eligibility requirement to determine whether or not the requirement is essential-which entails determining whether an accommodation is reasonable- and then must determine whether the individual has met those requirements that are essential. See Pottgen, 40 F.3d at 929; Aughe v. Shalala, 885 F.Supp. 1428, 1431 (W.D.Wash.1995). An eligibility requirement will be essential-or an accommodation of it will be unreasonable-if its alteration “either imposes ‘undue financial and administrative burdens’ [on the public entity] or requires ‘a fundamental alteration in the nature of [the] program.’ ” Pottgen, 40 F.3d at 931 (alterations in original) (quoting School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987)); Easley by Easley v. Snider, 36 F.3d 297, 305 (3d Cir.1994); Roberts v. KinderCare Learning Ctrs., Inc., 896 F.Supp. 921, 926 (D.Minn.1995). Reasonable accommodations are those that do not require an organization “to lower or to effect substantial modifications of standards to accommodate a handicapped person.” Pottgen, 40 F.3d at 930 (quoting Southeastern Community College, 442 U.S. at 413, 99 S.Ct. at 2370-71). Furthermore, even reasonable modifications need be made only if they “are necessary to avoid discrimination on the basis of disability.” 28 C.F.R. § 35.130(b)(7). In this case, plaintiffs’ claims fail both because plaintiffs fail to meet an essential eligibility requirement and hence they are not within the protections of the statutes, and because modification of the eligibility requirement is not necessary to avoid discrimination based on a disability. Although questions of the reasonableness of an accommodation or the essentialness of an eligibility requirement generally need a fact-specific inquiry, see Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 140 (2d Cir.1995) (addressing reasonableness of accommodations under the Rehabilitation Aet); Staron, 51 F.3d at 356 (same under Title I of ADA), certain eligibility requirements of a program by their nature are essential and any alteration unreasonable as a matter of law.. See Pottgen, 40 F.3d at 930-31; McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850, 859-60 (5th Cir.1993), cert. denied, 510 U.S. 1131, 114 S.Ct. 1103, 127 L.Ed.2d 415 (1994); cf. Alexander v. Choate, 469 U.S. 287, 302, 105 S.Ct. 712, 720-21, 83 L.Ed.2d 661 (1985). But see Pottgen, 40 F.3d at 932-33 (Arnold, C.J., dissenting); Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 913 F.Supp. 663, 668 (D.Conn.1996); Johnson, 899 F.Supp. at 585. The eligibility requirement in question here is the “for service” retirement requirement to qualify for Variable Supplements. The accommodation sought is a waiver of this requirement for officers who retire with a disability pension. This requirement is a core component of the Variable Supplements Funds and any alteration would change the entire nature of the additional payments which presumably serve as an additional incentive for extended service. See Castellano, 937 F.2d at 756. - Accordingly, this Court finds that the “for service” requirement is essential and any modification would result in a fundamental alteration to the program. See Aughe, 885 F.Supp. at 1432 (“Because that would essentially rewrite the statute, it must be seen as a fundamental alteration in the nature of the program.”); McGregor, 3 F.3d at 860. Because plaintiffs admittedly cannot meet the “for service” requirement, they are not qualified individuals entitled to pursue an action under these provisions of the ADA and the Rehabilitation Act. Furthermore, even if plaintiffs’ allegations were sufficient to allege that the waiver sought was a reasonable modification, plaintiffs’ allegations would still be insufficient to state a claim under these federal disability discrimination statutes because they fail to allege facts sufficient to show that the modification is necessary to avoid discrimination on the basis of a disability. In order to determine whether a modification is necessary, a court must look to the merits of the claims and determine essentially if plaintiffs’ allegations show either that they were treated differently than other similarly situated nondisabled employees or that defendants’ policies have a disparate impact on disabled employees. See Crowder v. Kitagawa, 81 F.3d 1480, 1483-84 (9th Cir.1996) (distinguishing between disability discrimination and denial of or exclusion from benefits because of a disability); P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir.1990); Cramer v. State of Fla., 885 F.Supp. 1545, 1552-53 (M.D.Fla.1995); see also Traynor v. Turnage, 485 U.S. 535, 548, 108 S.Ct. 1372, 1382, 99 L.Ed.2d 618 (1988); Alexander v. Choate, 469 U.S. 287, 309, 105 S.Ct. 712, 724, 83 L.Ed.2d 661 (1985). In reviewing cases under the federal disability statutes, courts must give “great deference” to guidelines of the EEOC, though those guidelines are not binding. See Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982); Teal v. State of Conn., 645 F.2d 133, 137 n. 6 (2d Cir.1981), aff'd, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982); Helen L. v. DiDario, 46 F.3d 325, 331-32 (3d Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 64, 133 L.Ed.2d 26 (1995); Le v. Applied Biosystems, 886 F.Supp. 717, 720 n. 2 (N.D.Cal.1995). The EEOC has issued guidelines stating that “[t]he ADA does not require that service retirement plans and disability retirement plans provide the same level .of benefits, because they are two separate benefits which serve different purposes_ Therefore, the employer does not violate the ADA simply by providing different benefits under service and disability retirement plans.” See EEOC Notice, “Questions and Answers About Disability and Service Retirement Plans Under the ADA, No. 915.002, May 15, 1995; see also Felde v. City of San Jose, 839 F.Supp. 708, 710 (N.D.Cal.1994), aff'd, 66 F.3d 335 (9th Cir.1995) (Table). It is undisputed that plaintiffs could have retired with “for service” pensions and eligibility for the Variable Supplements if they had completed twenty years of employment at the time they retired. The relief plaintiffs seek here—waiver of the “for service” requirement in order to obtain Variable Supplements—is outside the protection of the federal disability discrimination statutes, which seek to protect disabled individuals from being discriminated against because they are disabled “in relation to nonhandi-capped individuals.” Traynor, 485 U.S. at 548, 108 S.Ct. at 1382; Flight, 68 F.3d at 63-64. This requirement discriminates against—or precludes from benefits—officers with less than twenty years of service, not officers who retired because of a disability. See Flight, 68 F.3d at 64 (“the distinction in the present case is not based upon [plaintiffs] disability, multiple sclerosis, but rather upon his inability to drive.”); Felde, 839 F.Supp. at 711. But see Dennin, 913 F.Supp. at 669-70. It does not burden disabled individuals in a manner different from or greater than the burdens it places on nondisabled individuals. See Traynor, 485 U.S. at 548-50, 108 S.Ct. at 1382-83; Crowder, 81 F.3d at 1484. Plaintiffs could have argued that the service requirement places a greater burden on the disabled because they do not have the option of continuing to work to meet the twenty year service requirement. This argument, however, does not support the relief sought by plaintiffs because, if this were plaintiffs’ argument, they would seek an accommodation that would permit disabled officers to continue working in some capacity in order to- have the opportunity to work for twenty years and earn a “for service” retirement and its concomitant entitlement to share in the Variable Supplements. Plaintiffs, however, seek no such relief in this action. In essence, plaintiffs seek “special treatment rather than simply nondiseriminatory treatment.” Felde, 839 F.Supp. at 711; Lincoln CERCPAC v. Health and Hosps. Corp., 920 F.Supp. 488, 497 (S.D.N.Y.1996); McGregor, 3 F.3d at 860 (“the additional accommodations, if granted, would constitute preferential treatment and go beyond the elimination of disadvantageous treatment”). Assuming they meet the other eligibility requirements, plaintiffs have full access to all retirement benefits offered to nondisabled officers and also have the additional option to selecting one of the disability retirement plans. See Traynor, 485 U.S. at 548-49, 108 S.Ct. at 1382. Defendants’ refusal to provide this special treatment to plaintiffs does not violate any of the federal disability statutes and modification of it is not necessary to avoid disability based discrimination. See Alexander, 469 U.S. at 306, 105 S.Ct. at 715; Flight, 68 F.3d at 63-64; Felde, 839 F.Supp. at 711. Accordingly, because plaintiffs are not within the class of individuals protected by the federal disability discrimination statutes and because modification of the eligibility requirements is not necessary to avoid disability based discrimination, defendants’ motions to dismiss plaintiffs’ claims under the ADA and the Rehabilitation Act are granted, and those claims shall be dismissed. B. ADEA Claims Plaintiffs allege that their exclusion from participation in the Variable Supplements violates the ADEA because the exclusion denies benefits “solely because plaintiffs retired prior to passage of the defined benefit component of the [Variable Supplements Funds] and are older than those City Police Officers receiving the privilege.” (Complaint, ¶ 105.) Plaintiffs, however, are barred from asserting an ADEA claim because they failed to file a complaint with the EEOC. See Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 23-26 (2d Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985); Peterson v. Insurance Co. of N. Am., 884 F.Supp. 107, 109 (S.D.N.Y.1995); Julian v. New York City Transit Auth., 857 F.Supp. 242, 249 (E.D.N.Y.1994), aff'd, 52 F.3d 312 (2d Cir.1995) (Table). Furthermore, even if plaintiffs’ ADEA claims were not barred, their factual allegation that they are “older” than other officers is insufficient to state a claim under ADEA. See, e.g., Dugan v. Martin Marietta Aerospace, 760 F.2d 397, 399-400 (2d Cir.1985); Abbasi v. Herzfeld & Rubin, P.C., 863 F.Supp. 144, 146-47 (S.D.N.Y.1994). Thus, plaintiffs’ ADEA claim shall.be dismissed as well. C. State Law Claims

1498696-14508

JAMES DICKSON PHILLIPS, Circuit Judge: In this diversity case controlled by South Carolina law BASF Wyandotte Corp. (BWC), manufacturer of Basalin, an agricultural herbicide, appeals from a judgment in favor of Hill, a farmer who bought Basalin from a retailer and used it with allegedly injurious consequences to his soybean crop. A jury, finding breach of warranty running from BWC as manufacturer to Hill as ultimate purchaser under relevant provisions of the state’s version of the Uniform Commercial Code (U.C.C.), awarded Hill substantial direct and consequential damages. Concluding that BWC was bound by no warranty save that expressed in writing on the cans of herbicide purchased by Hill and that under its terms Hill’s remedy for breach was limited to direct damages, we vacate the judgment and remand for a new trial limited to the issues of liability and damages for breach of the express warranty on the herbicide cans. I In 1977, Hill was an experienced farmer with extensive farming operations in Rich-land County, South Carolina. Along with other crops he grew a substantial amount of soybeans. In recent years he had used a herbicide called Treflan, produced by a manufacturing rival of BWC’s, to control weeds in producing this crop. In late January or early February of 1977 he met with a man named Pennington, who was a sales agent for BWC. They discussed the properties of BWC’s herbicide, Basalin, which was then selling at a lower price than Treflan’s. In the course of their discussions, in response to questioning by Hill, Pennington told Hill that “if you used Treflan, you [use Basalin] the same way ... the entire same way”; that “it would control the same weeds that Treflan will”; that “it would do the same way as Treflan, but it is cheaper”; “to put it down the same way, you don’t have to change a thing, do it the same way.” Relying, according to his later testimony, upon these statements by Pennington, Hill decided to buy and use considerable quantities of Basalin in growing his 1977 soybean crop. BWC did not have a direct retail outlet in the area, and Hill made his purchases of Basalin from Kerr-McGee Chemical Corporation, a local agricultural chemical retailer. He made four separate purchases, the first on February 14, and the other three during April. In all he bought 365 gallons, all in 5-gallon cans, for a total purchase price of $8,382.35 which he paid in two separate installments. On each of the cans of Basalin purchased there appeared a label containing a warranty and certain conditions of sale that included an allocation of risk, a disclaimer of any warranties other than the one expressly stated, and a limitation of remedies for breach of that warranty. After reading the label, Hill applied the herbicide to 1,450 acres of soybeans. He applied Treflan to approximately another 200 acres of soybeans. Following planting of this crop in May and June, Hill began in July to notice weed problems — particularly pig weed — in the Basalin fields. No corresponding problem was noted then or later in the Treflan fields. Efforts of various kinds were made to control the weed problem, but none were successful. In the Basalin-treated fields, Hill had a bad crop, with lower yield than he had had in other years and a poorer quality that required greater-than-ordinary expense in harvesting. Ascribing this result to Basalin’s failure to control weeds as warranted, Hill brought this action against BWC alleging breach of warranty and misrepresentation, and seeking $48,257.35 in direct and consequential damages. BWC defended on several grounds: inter alia, that Hill’s use of Basalin was not the proximate cause of any crop loss sustained; that BWC’s sole warranty was that expressed on the label and that it was not breached; and that, in any event, under terms of the warranty, Hill’s remedy was limited to recovery of the purchase price. The case was first tried to Judge Chapman and a jury. On trial the evidence of causation was substantially conflicting. Hill’s evidence indicated a significant difference in the yields on the Basalin-treated and Treflan-treated crops, and included testimony suggesting that Treflan in general was rated by experts as a better product and that other farmers in the area had had similar problems with Basalin during the same crop year. On the other hand, BWC’s evidence included, inter alia, testimony that the two products were essentially identical in chemical composition and were rated of equal quality by experts; that the 1977 crop year had been a bad one generally in the area, with a drought at the critical time that might well have caused any diminished yield experienced; and that a significant portion of the Basalin-treated crop involved a seed variety more vulnerable to the drought conditions than was the variety used in Hill’s smaller Treflan-treated crop. Judge Chapman ruled as a matter of law that the only warranties in issue were the express warranties on the Basalin can which, by virtue of the applicable state U.C.C. provision, S.C.Code Ann. § 36-2-318 (Law. Co-op. 1976), extended BWC’s warranty beyond the retailer to Hill as a consumer; and that if breach of that warranty was proven, Hill’s remedy was limited by its terms to direct damages as measured by the purchase price. On that basis the case was submitted to the jury which was then unable to reach a verdict, resulting in the declaration of a mistrial. The case was then retried to Judge Anderson and a jury on substantially the same evidence. At the conclusion of the retrial, Judge Anderson, in direct disagreement with Judge Chapman’s earlier critical rulings, instructed the jury that it might find BWC liable on the oral warranty of Pennington as well as any express warranty on the cans of Basalin, and that it might award consequential as well as direct damages if it found breach of warranty and damages proximately caused by the breach. This jury returned a general verdict for Hill of $209,725. Following the denial of various post-trial motions by BWC, this appeal was taken. II BWC’s contentions on appeal are essentially that Judge Anderson erred in his two rulings by which, in specific disagreement with those earlier made by Judge Chapman, he allowed the jury to treat Pennington’s oral representations as an oral express warranty binding on BWC, and to award consequential as well as direct damages for any breach found. We agree that there was error of law in both respects. A BWC contends that Pennington’s oral representation did not amount to a warranty binding upon BWC for two reasons. First, as a matter of law, that the representation amounted to no more than sales puffing, as Judge Chapman had ruled on the first trial. Second, that in any event, BWC’s express disclaimer of any express or implied Warranties other than those expressed on the label was binding as a matter of law upon Hill as purchaser. While we would be disposed to agree that under S.C.Code Ann. § 36-2-313(2) (Law. Co-op.1976) Pennington’s representation was simply “a statement purporting to be merely the seller’s opinion or commendation of the goods [that did] not create a warranty,” we rest decision primarily on the conclusion that, in any event, Hill was bound by the disclaimer on the label of any warranties but those expressly stated there. Though on trial Hill attempted to discount the subjective effect of the label’s contents upon him as he read them, he conceded that he did read the label before using any of the Basalin. There is, therefore, no question of either his actual notice of the disclaimer’s existence as an express condition of the sale or that he was invited by another provision of the label to repudiate by return of the product if unwilling to accept the sale conditions. Under controlling provisions of the U.C.C. as enacted in South Carolina, S.C.Ann.Code § 36-2-202 (Law.Co-op.1976) (parol or extrinsic evidence), and of the express conditions of the particular sale, the Pennington oral statements could not, as a matter of law, be allowed to vary the terms of the conditions of sale and warranty on the product label, see Investors Premium Corp. v. Burroughs Corp., 389 F.Supp. 39 (D.S.C. 1974) (construing predecessor statute), which alone controlled the legal relations of the parties to the executed sale. Hill seeks to avoid the controlling effect of these statutory provisions by characterizing the disclaimer on the product label as a unilateral attempt by a seller following execution of a contract of sale or a consummated sale to disclaim express warranties made in conjunction with the sale or contract. The cases he cites in support of this proposition, e.g., Klein v. Asgrow Seed Co., 246 Cal.App.2d 87, 54 Cal.Rptr. 609 (Cal.Ct.App.1966), do support it, but they and that proposition are simply inapposite to the facts of this case. They deal with the effect of a post-contract or post-sale attempt unilaterally to avoid, by a later disclaimer, warranties embodied in or arising from an executory contract of sale or a completed sale. That is simply not the situation here in issue. B The district court also erred in allowing the jury to award consequential damages in the face of the express limitation of remedies on the label. S.C.Code Ann. § 36-2-719 (Law.Co-op. 1976) authorizes remedy limitations such as that expressed here on the Basalin label unless those limitations are determined to be unconscionable, or not intended to be exclusive, or to have failed of their essential purpose. Id. Judge Anderson, as had Judge Chapman in the original trial, held the limitation in issue not to be unconscionable. Hill does not challenge that ruling on appeal. This leaves only the possibilities that the limitation expressed was not intended to be exclusive, or that the exclusive remedy as limited failed of its essential purpose within the meaning of the statute. Hill urges that he never agreed that the limitation expressed should make the remedy as limited an exclusive one. He accepted, however, a product with a label proclaiming that damages in no case would exceed those contemplated on the label. The label extends to purchaser-users the privilege of returning Basalin cans unopened if the purchaser does not agree to the terms and conditions on the label. Hill read the label and chose not to return the product but to use it. He cannot defeat the warrantor’s expressed intention to limit remedy by a privately held intention not to accept the limitation while accepting and using the product. Hill’s argument that such a limited remedy necessarily “fails of its essential purpose” is equally unavailing. The argument seems to be that because Hill claims damages in the amount by which his crop yield was allegedly reduced and cannot obtain such damages if the limitation on remedy is enforced, then the remedy “fails of its essential purpose.” This would of course turn the provision on its head since it would always prevent imposition of any limitation that might prevent recovery of particular relief sought. The “fail of essential purpose” exception to the general right of sellers to limit liability under the U.C.C. applies most obviously to those situations where the limitation of remedy involves repair or replacement that cannot return the goods to their warranted condition. See, e.g., Benco Plastics, Inc. v. Westinghouse Electric Corp., 387 F.Supp. 772 (E.D.Tenn.1974) (cited by Hill). See generally J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code § 12-10 (2d ed. 1980). This exception does not apply here. Ill It is not possible to determine from the general verdict whether the jury found liability based solely upon breach of the Pennington oral “warranty” or of both that “warranty” and the express warranty on the label. It is therefore necessary to vacate the judgment in its entirety and remand for a new trial limited to the issues of whether BWC is liable for breach of the express warranty on the label and, if so, the amount of damages to which Hill is entitled for the breach under the limitation of remedies that we have held was validly imposed in the conditions of sale on the label. It is so ordered. . CONDITIONS OF SALE AND WARRANTY The Directions for Use of this product reflect the opinion of experts based on field use and tests. The directions are believed to be reliable and should be followed carefully. However, it is impossible to eliminate all risks inherently associated with use of this product. Crop injury, ineffectiveness or other unintended consequences may result because of such factors as weather conditions, presence of other materials, or the manner of use or application all of which are beyond the control of BASF WYANDOTTE CORPORATION (“BWC”) or the seller. All such risks shall be assumed by the Buyer. “BWC” warrants that this product conforms to the chemical description on the label and is reasonably fit for the purpose referred to in the Directions for Use subject to the inherent risks referred to above. “BWC” MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY OF FITNESS OF MERCHANTABILITY OR ANY OTHER EXPRESS OR IMPLIED WARRANTY. In no case shall “BWC” or the Seller be liable for consequential, special or indirect damages resulting from the use or handling of this product. “BWC" and the Seller offer this product'and the Buyer and user accept it, subject to the foregoing Conditions of Sale and Warranty which may be varied by agreement in writing signed by a duly authorized representative of “BWC”. The purchase price of Basalin includes a royalty for a non-transferable license to practice the method of U.S. 3,854,927. Read the entire label. Use only according to label instructions. Read “CONDITIONS OF SALE AND WARRANTY” before buying or using. If terms are not acceptable, return product at once, unopened. . Section 36-2-318 provides: A seller’s warranty whether express or implied extends to any natural person who may be expected to use, consume or be affected by the goods and whose person or property is damaged by breach of the warranty. A seller may not exclude or limit the operation of this section. BWC concedes on this appeal that this provision has the legal effect stated in text. We accept that it does on that basis and without addressing the question independently. . On this appeal BWC has contended alternatively that Judge Anderson was without power to “reverse” Judge Chapman’s earlier rulings because those rulings constituted the “law of the case:”

12011026-12228

RIPPLE, Circuit Judge. Following a trial, the jury returned a verdict in favor of the plaintiff, Officer Cory D. Chan, for $21,000 in compensatory damages, $10,000 for pain and suffering, and $121,000 in punitive damages. Both parties filed post-trial motions, and the district court granted the defendant Deputy Superintendent Wod-nicki’s motion for judgment as a matter of law. Officer Chan now appeals, and Deputy Superintendent Wodnicki conditionally cross-appeals. For the reasons set forth in the following opinion, we affirm the judgment of the district court. I BACKGROUND A. Facts Mr. Chan is a police officer with the Chicago Police Department. The defendant, Deputy Superintendent Wodnicki, was the Deputy Superintendent for the Intelligence Division in which Officer Chan served. In that division, Officer Chan was assigned from 1985 to 1989 to a multi-jurisdictional unit, the Chicago Terrorist Task Force (“CTTF”). In that unit, members of the Chicago Police Department served with other state and federal officers. The CTTF required that its members, including Chan, have a “top secret” security clearance from the federal government. As a member of the CTTF, Officer Chan worked well over forty hours a week and received added compensation for the extra hours. He also had use of an official vehicle for police business. In 1989, Officer Chan received a subpoena commanding his appearance before a grand jury. Officer Chan assumed that the grand jury was investigating illegal activity in the Chinatown section of the City. He previously had been assigned there. After speaking to an attorney provided by his union, Officer Chan invoked his fifth amendment privilege against self-incrimination. He alleges that the questions he was asked during the grand jury proceedings were not specific-questions related to his official duties as a police officer. He also testified at trial that he was not advised that any answers provided would not be used against him in a criminal context. After his grand jury appearance, he reported to his superiors that he had invoked his fifth amendment privilege before the grand jury. When he returned to the station, his superiors called him in, and he again told them that he did not answer the grand jury’s questions. After this meeting, one of the supervisors told him that he could lose his security clearance. Shortly thereafter, Deputy Superintendent Wodnieki transferred Officer Chan to another division. In that division, the officer was assigned to duty that required that he wear a uniform. After this transfer, Officer Chan’s security clearance was revoked. His rank and salary, however, remained the same. Deputy Superintendent Wodnieki testified that he had removed Officer Chan from the CTTF for the following reasons: He did not know why Officer Chan had asserted his fifth amendment privilege and did not know the subject of the grand jury investigation; he considered Officer Chan a security risk; he was told that the FBI was going to revoke the clearance, and the FBI no longer wanted Officer Chan on the CTTF. Officer Chan was replaced on the CTTF by someone who had been in Deputy Superintendent Wodnicki’s chain of command before he became Deputy Superintendent. The union filed a grievance over the transfer on Officer Chan’s behalf. On August 20, 1990, an arbitrator ordered Chan’s reinstatement in the Intelligence Section, but determined that he was without jurisdiction to order Chan’s reinstatement to the CTTF. In April 1991, Officer Chan was renominated to the CTTF and applied for his security clearance. By the time of the trial, his clearance had not been approved. In this § 1983 action, he claims that he was transferred in retaliation for asserting his constitutional right against self-incrimination. In his complaint, Officer Chan alleged that the transfer caused economic and reputational harm. Economically, he had fewer opportunities for overtime with the plain-clothes unit. Repu-tationally, he alleged harm because he had to wear a uniform, his car was taken away, and his new assignment was less prestigious. B. Proceedings in the District Court Prior to trial, the district court dismissed from the action several defendants named in the complaint. The Chicago Police Department was dismissed because it was not a suable entity. The § 1983 claim against the City was dismissed because Officer Chan had not alleged that this transfer was the direct result of any policy. Officer Chan sought to amend his complaint, but the magistrate judge denied that request and stated that the amended complaint did not cure this problem. Officer Chan never requested that this ruling be reviewed by the district court. Deputy Superintendent Wodnieki’s motion for summary judgment on the ground of qualified immunity was denied by the district court. At that time, the district court was of the view that there was a genuine issue of material fact as to whether the transfer constituted such a substantial penalty upon Officer Chan that it violated his right against self-incrimination, guaranteed by the Fifth Amendment as made applicable to the states through the Fourteenth Amendment. At trial, the jury returned a verdict for Officer Chan. It awarded him $21,000 for economic loss and $10,000 for pain and suffering. It also awarded $121,000 in punitive damages. The district court then granted Deputy Superintendent Wodnicki’s motion for judgment as a matter of law. It held that he was entitled to qualified immunity because, at the time of Officer Chan’s transfer, it was not clearly established that the transfer constituted a burden sufficiently grave to constitute an infringement on the officer’s Fifth Amendment rights. The court reasoned that it was not clearly established at the time of the transfer that Deputy Superintendent Wodnicki would have known that $21,000 was a sufficient penalty to infringe on the officer’s rights. See R.244 at 6-7. II DISCUSSION Government officials “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The official is entitled to this immunity if, at the time he acted, he reasonably could have determined that his actions did not violate clearly established law. See Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). Because of the “expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office ... [and] the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials,” Harlow, 457 U.S. at 814, 102 S.Ct. at 2736(internal quotation, citations and brackets omitted), qualified immunity bars suits for damages against “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). “The inquiry focuses on the objective legal reasonableness of the action, not the state of mind or good faith of the officials in question.” Erwin v. Daley, 92 F.3d 521, 525 (7th Cir.1996) (citing Anderson, 483 U.S. at 639, 107 S.Ct. at 3038), cert. denied, — U.S. —, 117 S.Ct. 958, 136 L.Ed.2d 845 (1997). In Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991), the Supreme Court of the United States noted that, in evaluating a claim of qualified immunity, a court is essentially presented with two questions: (1) whether the plaintiff has asserted a violation of the constitutional right at all; and (2) whether the defendant’s actions were objectively reasonable in light of then-prevailing standards. See Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994). A negative answer to either of these questions requires a determination that the officer is immune from a suit for damages. Courts have often found their task easier by approaching immediately the second question; we shall follow that methodology today. Under the well-established analysis, the plaintiff must establish that, at the time that the defendant official acted, the law was so “clearly established” that “a reasonable official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. To establish this criterion, the plaintiff must show either a reasonably analogous ease that has both articulated the right at issue and applied it to a factual circumstance similar to the one at hand or that the violation was so obvious that a reasonable person necessarily would have recognized it as a violation of the law. See Erwin, 92 F.3d at 525. In short, the act of the defendant must be assessed at a sufficiently specific level of generality to show that the conduct at issue is forbidden. See Rakovich v. Wade, 850 F.2d 1180, 1209-10 (7th Cir.1987) (en banc), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988). Qualified immunity ought to be available unless “the law was clear in relation to the specific facts confronting the public official when he acted.” Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir.1987). We therefore turn to an examination of the law at the time that Deputy Superintendent Wodnicki acted. The basic principles that govern this area were stated succinctly by the Supreme Court in Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). In that case, the Court stated the watershed rule that the “Fifth Amendment privilege against compelled self-incrimination protects grand jury witnesses from being forced to give testimony which may later be used to convict them in a criminal proceeding.” Id. at 804-05, 97 S.Ct. at 2134-35. “[W]hen a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a subsequent criminal prosecution.” Id. at 805, 97 S.Ct. at 2135. The Court went on to note that “a State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.” Id.; see also Minnesota v. Murphy, 465 U.S. 420, 434, 104 S.Ct. 1136, 1145, 79 L.Ed.2d 409 (1984). In Cunningham, the Court also made it clear that governmental coercion can take many forms and that economic sanctions are just one form of pressure that may be brought to bear on an individual in an effort to force that person to give up the right against self-incrimination. The “touchstone of the Fifth Amendment is compulsion, and direct economic sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the Amendment forbids.” Cunningham, 431 U.S. at 806, 97 S.Ct. at 2135. Therefore, the government may not threaten the sort of action that may coerce an employee into forfeiting his right against self-incrimination. The Supreme Court has made clear that the threat of job loss for a public employee is a sufficient threat to require that the employee be granted immunity from prosecution before he is required to answer questions about his public responsibilities. See Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 278, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); see also Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) (holding that disqualification of a contractor from public contracts for five years is a sufficiently serious threat to require immunity before testimony can be compelled); Spevack v. Klein, 385 U.S. 511, 516, 87 S.Ct. 625, 628, 17 L.Ed.2d 574 (1967) (holding that the “threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege”) (plurality opinion).

3995547-18298

PER CURIAM: Crystal Hyde appeals the grant of summary judgment on her claims of gender and pregnancy discrimination, harassment, and retaliation under Title VII, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a) (“Title VII”), and the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”); for retaliation under the Family Medical Leave Act, 29 U.S.C. § 2615 (“FMLA”); for commission of the tort of negligent retention under state law; and for punitive damages and attorneys’ fees, brought against her former employer, KB Home, and her former supervisor, Daniel Waibel. First, she argues that the district court erred in granting summary judgment on her Title VII sex discrimination disparate treatment claim because she presented direct evidence of discrimination and established a prima facie case with circumstantial evidence of discrimination. Second, she argues that the district court erred in granting summary judgment on her Title VII sexual harassment claim because she suffered a tangible employment action—withdrawal of work assignments'—and the hostile work environment interfered with her job performance. Third, she contends that the district court erred in finding that she did not present direct evidence of retaliation for taldng protected FMLA leave or that she did not establish a prima facie case of retaliatory discharge. Fourth, she argues that the district court erred in granting summary judgment on her state law claim of negligent retention of Waibel. Finally, she argues that the district court erred in granting summary judgment on her claims for punitive damages and attorney’s fees. Upon review of the parties’ briefs and the record, we affirm the district court’s grant of summary judgment for KB Home for all claims on appeal. I. STANDARD OF REVIEW We review a grant of summary judgment de novo and view the evidence in the light most favorable to the nonmoving party. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161-62 (11th Cir.2006) (citing Patrick v. Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir.2000)). Summary judgment should be granted if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). II. DISCUSSION A. Title VII Sex Discrimination Disparate Treatment An employer may not “discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex,” and, following enactment of the PDA, this includes discrimination on the basis of “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e-2(a)(l), 2000e(k); Armindo v. Padlocker, Inc., 209 F.3d 1319, 1320 (11th Cir.2000) (per curiam). In other words, an employer is not permitted to take an “adverse employment action” against an employee on the basis of his or her sex or pregnancy, as to do so would constitute illegal discrimination. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1235 (11th Cir.2001) (adverse employment action is required to obtain relief under Title VII’s anti-discrimination clause). Thus, an “adverse employment action” is a crucial component in any discrimination claim under Title VII because without it, Title VII offers no remedy. See id. Whether an employment action is adverse is a matter of federal law, not state law. Hinson v. Clinch County, Ga. Bd. Of Educ., 231 F.3d 821, 828-29 (11th Cir.2000). It is also a question of fact, although one still subject to the traditional rules governing summary judgment. See id. at 830 (noting that a reasonable factfinder could have concluded that the plaintiff suffered an adverse employment action, thus indicating that whether an employment action is adverse is a question of fact); Fed.R.Civ.P. 56(c). A plaintiff “must show a serious and material change in the terms, conditions, or privileges of employment” to establish an adverse employment action. Davis, 245 F.3d at 1239 (emphasis in original). The actions must also be viewed under the totality of circumstances. See Akins v. Fulton County, Ga., 420 F.3d 1293, 1301 (11th Cir.2005) (citing Shannon v. Bell-south Telecomms., Inc., 292 F.3d 712, 716 (11th Cir.2002)) (“In deciding whether employment actions are adverse, we consider the employer’s acts both individually and collectively.”); Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d 1095, 1118 (11th Cir.2001) (“While the other actions might not have individually risen to the level of adverse employment action under Title VII, when those actions are considered collectively, the total weight of them does constitute an adverse employment action.”). It is important to note, however, that not all conduct by an employer that negatively affects an employee constitutes adverse employment action in a discrimination context. Davis, 245 F.3d at 1238. Additionally, “the employee’s subjective view of the significance and adversity of the employer’s action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances.” Id. at 1239. Under the Supreme Court’s precedent in Burlington Northern & Santa Fe Railway Company v. White, a plaintiff must show that the employer’s challenged action “would have been materially adverse to a reasonable employee,” that it would have “likely ... dissuad[ed] a reasonable worker from making or supporting a charge of discrimination,” and that the plaintiff was harmed by this. 548 U.S. 53, 57, 126 S.Ct. 2405, 2409, 165 L.Ed.2d 345 (2006). Under FMLA regulations, temporary reassignment to accommodate leave is permissible. 29 C.F.R. § 825.204(a). A reduction in hours may be accompanied by a reduction in overall pay, however, so long as the hourly rate remains constant. 29 C.F.R. § 825.204(c). An employer may also alter duties or responsibilities in connection with an employee’s needs under the FMLA. 29 C.F.R. § 825.204. With respect to Title VII, in Davis, we noted that temporary changes in work assignments that were essentially demotions but did not change the employee’s pay status did not meet the definition of adverse employment action. 245 F.3d at 1240. While we declined to hold that a change in work assignments can never by itself give rise to a Title VII claim, we observed that in the majority of instances, “a change in work assignments, without any tangible harm” is outside the protection of Title VII’s anti-discrimination clause, “especially where ... the work assignment at issue is only by definition temporary and does not affect the employee’s permanent job title or classification.” Id. at 1245. A transfer to a different position can also be “adverse” if it involves a reduction in “pay, prestige, or responsibility.” Hinson, 231 F.3d at 829 (internal quotation marks omitted). Hyde argues that the reduction of her pay rate, disallowance of vacation time during leave, and withdrawal of substantially all of her work assignments constituted a serious and material change in employment involving a loss of prestige and responsibility. KB Home responds that it provided Hyde with every benefit to which she was entitled under the FMLA and that Hyde’s unsubstantiated claim that her pay was reduced at some point is specious. Additionally, KB Home argues that there is no record evidence showing that Hyde was denied vacation time, and Hyde admits that she was given as much time off as needed under the FMLA. KB Home also responds that temporary reduction and reassignment of job duties in preparation for an employee’s maternity leave does not rise to the level of a serious and material change of the terms of employment, and therefore, cannot constitute adverse employment action. Hyde additionally argues that the withdrawal of substantially all of her job responsibilities a month and a half before she took any intermittent leave were not actions taken by her employer to accommodate her FMLA leave requests. KB Home argues that it had to have a plan in place to continue its operations and ensure that work was getting done in a timely fashion when Hyde was out of the office taking intermittent and continuous FMLA leave. Thus, KB Home responds that it simply took reasonable steps to ensure that this would occur. It additionally argues that a temporary reassignment of job duties is proper under the FMLA, and such temporary reassignment cannot, at the same time, somehow be deemed to constitute an adverse employment action for Title VII purposes. Hyde failed to present evidence of an adverse employment action, and therefore, she has not presented a cognizable claim for Title VII sex discrimination disparate treatment. First, Hyde relies on Hinson for the proposition that an action may be considered an adverse employment action under Title VII “if it involves a reduction in pay, prestige, or responsibility.” 231 F.3d at 829 (emphasis added). In Hinson, a female plaintiffs transfer from high school principal to an administrative position, and eventually a full-time teacher constituted adverse employment action because the administrative position entailed a significant loss of pay, and there was an issue of fact that the new position was less prestigious. Id. Hyde’s case is distinguishable because Hyde’s job title did not change, she did not receive a reduction in pay for taking FMLA leave, and although her responsibilities were reduced and reassigned, it was the result of KB Home preparing for Hyde’s intermittent and continuous medical leave. Additionally, “[a]ny adversity must be material; it is not enough that a transfer imposes some de minimis inconvenience or alteration of responsibilities.” Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1453 (11th Cir.1998) (emphasis in original). Here, Hyde was not transferred or demoted, but her job title and salary remained the same, and her reduction in responsibilities alone, therefore, did not amount to an adverse employment action. KB Home’s reassignment of Hyde’s job responsibilities to Tammy Catchings and Cheryl Nelson were also proper in order to prepare for Hyde’s intermittent and continuous FMLA leave. There is evidence that some of Hyde’s duties were daily ones, and some days were more intensive than others. This support’s KB Home’s reasoning that it withdrew Hyde’s duties because it needed to adequately prepare those who would be replacing Hyde while she was out on leave. Therefore, we affirm the decision of the district court granting summary judgment in favor of KB Home on Hyde’s Title VII sex discrimination disparate treatment claim because Hyde did not suffer an adverse employment action. B. Title VII Sexual Harassment Under Title VII, 42 U.S.C. § 2000e-2(a)(l), sex-based harassment of an employee is forbidden. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1244-45 (11th Cir.1999) (en banc) (stating that although Title VII does not mention harassment, the Supreme Court includes harassment as actionable under Title VII). To prove sex ual harassment, a plaintiff may rely on either a “tangible employment action” theory or a “hostile work environment” theory. Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1245 (11th Cir.2004). “[A] tangible employment action is a significant hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. (internal quotation marks omitted) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998)). The test for an adverse employment action in a disparate treatment context is similar to the one for a “tangible employment action” in a harassment analysis. Webb-Edwards v. Orange County Sheriffs Office, 525 F.3d 1013, 1031 (11th Cir.2008) (equating “tangible employment action” with “adverse employment action”). Additionally, in order to establish employer liability, a plaintiff must also establish a “causal link between the tangible employment action and the sexual harassment.” Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir.2006). Because Hyde failed to establish an “adverse employment action” under her Title VII disparate treatment discrimination claim, she likewise has not established a “tangible employment action” for her Title VII harassment claim. Therefore, Hyde’s harassment claim under the “tangible employment action” theory cannot survive KB Home’s motion for summary judgment. A Title VII harassment claim under the “hostile work environment” theory is established upon proof that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (internal quotations and citations omitted) (holding that Title VII is not implicated in the case where there is a mere utterance of an epithet); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002). To prove sexual harassment under a hostile work environment theory, a plaintiff must show that: (1) she is a member of a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) “the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment;” and (5) there is a basis for employer liability. Mendoza, 195 F.3d at 1245. As the fourth element, severe and pervasive, contains both an objective and a subjective element, this behavior must result in both an environment “that a reasonable person would find hostile or abusive,” and an environment that the victim “subjectively perceive[s] ... to be abusive.” Harris, 510 U.S. at 21, 114 S.Ct. at 370; Miller, 277 F.3d at 1276. In evaluating the objective severity of the harassment, this Court looks at the totality of the circumstances and considers, inter alia, “(1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee’s job performance.” Miller, 277 F.3d at 1276 (citing Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir.1997)). The conduct and comments that Hyde provides for her harassment claim based on a “hostile work environment” theory do not rise to the level of conduct that is “severe or pervasive to alter the conditions of [her] employment.” Harris, 510 U.S. at 21, 114 S.Ct. at 370. Although several stray comments by Waibel were directed towards Hyde, arguably indicating that her reduction in responsibilities was due to her pregnancy, these comments to not rise to the level of being “severe or pervasive,” and they did not occur until after Hyde returned to work after taking FMLA leave. Hyde additionally argues that Waibel’s conduct in the office before she went on FMLA leave, specifically ignoring Hyde or slamming papers on Hyde’s desk, constituted severe or pervasive conduct that altered her working conditions. However, Hyde does not provide any evidence that such conduct occurred as a result of her pregnancy or taking FMLA leave, and such conduct was not severe or pervasive to create a hostile work environment. Finally, Hyde does not offer any evidence that would indicate that Waibel’s comments or conduct unreasonably interfered with her job performance. Therefore, Hyde’s Title VII harassment claim based on a “hostile work environment” theory cannot survive KB Home’s motion for summary judgment. Based on the record and the parties’ briefs, we affirm the district court’s grant of summary judgment for KB Home on Hyde’s Title VII sexual harassment claim because there is no genuine issue of material fact as to Hyde’s claim based on either a “tangible employment action” theory or a “hostile work environment” theory. C. FMLA Retaliation and Title VII and FMLA Retaliatory Discharge Pursuant to the FMLA, 29 U.S.C. § 2615(a)(2), it is unlawful “for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” Similarly, Title VII, 42 U.S.C. § 2000e-3(a), makes it unlawful for an employer to discriminate against an employee because he or she “has opposed any practice made an unlawful employment practice by this subchapter.... ” This includes internal complaints of discrimination. See Rollins v. Fla. Dep’t of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989). Such discrimination may be proven through direct or circumstantial evidence. See Berman v. Orkin Exterminating Co. Inc., 160 F.3d 697, 701 (11th Cir.1998). Statements made by a non-decision maker are not probative of discriminatory intent as direct evidence. Standard v. A.B.E.L. Servs. Inc., 161 F.3d 1318, 1330 (11th Cir.1998). To establish a prima face case of retaliation using circumstantial evidence, a plain tiff may show that “(1) [she] engaged in a statutorily protected activity; (2) the employer took an adverse employment action against him; and (3) there is a causal connection between the protected activity and the adverse action.” Berman, 160 F.3d at 701; see also Martin v. Brevard County Pub. Schs., 543 F.3d 1261, 1268 (11th Cir.2008) (per curiam) (citing Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 798 (11th Cir.2000)) (setting out elements for prima facie case of FMLA retaliation). If the plaintiff makes out a prima facie case, the burden shifts to the employer to offer a legitimate non-discriminatory reason for its actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If one is offered, the presumption of discrimination is rebutted, and the plaintiff must offer evidence that the reason is pretext for illegal discrimination. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.2004) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981)).

4207465-12274

OPINION ROTH, Circuit Judge: I. Introduction Pittsburgh Assistant City Parks Director Michael Radley and Pittsburgh Police Officers Eric Kurvach and Kevin Sellers appeal the denial of their motion to dismiss claims by Three Rivers Climate Convergence (Three Rivers) under 42 U.S.C. § 1983 for violation of its First and Fourth Amendment rights. Three Rivers’ complaint alleged that Radley deliberately obstructed its efforts to obtain permits to use Pittsburgh City parks for protests of an International Coal Conference and G-20 Summit taking place in Pittsburgh, and that he was involved in the seizure of its materials by City officials. Radley contends that these claims should have been dismissed because Three Rivers failed to adequately allege his involvement in conduct violating the First and Fourth Amendments. II. Background On December 11, 2009, Three Rivers and Seeds of Peace Collective (Seeds of Peace) filed an amended complaint, naming as defendants the City of Pittsburgh, Radley, and several other City officials and police officers. The complaint alleges, inter alia, that Three Rivers sought to mobilize people with similar views on climate and environmental concerns to protest the International Coal Conference and G-20 Summit taking place in Pittsburgh during the week of September 20, 2009. Three Rivers sought to use two parks in Pittsburgh, Point State Park and later Schenley Park, for demonstrations and as a “Convergence space” which would “provide a temporary, 24-hour-a-day, education-based, sustainability-camp community with associated support infrastructure for attendees and demonstrators between September 20-25.” According to Three Rivers, the defendants obstructed and hindered its demonstration efforts in several ways. We consider only those allegations relating to Radley, Pittsburgh’s Assistant City Parks Director. Point State Park Permit. Three Rivers applied to use Point State Park several times, but “City officials” denied these applications for a variety of reasons. The officials first claimed that the City police and the Secret Service would be using the entire park as a staging area and later claimed that they had never received Three Rivers’ permit application. The City police later decided that they only needed half of the park but Three Rivers was not informed of this decision and City officials continued to insist that the entire park was unavailable. Despite this insistence, City officials decided to hold in the park a “Free Speech Festival” featuring A1 Gore and other prominent speakers on the evening before the G-20 Summit would begin. When Three Rivers modified its permit request to accommodate the festival, the City refused to issue the permit on the grounds that the City needed to use the park for two footraces scheduled for the week before and the week after the week of the G-20 Summit. Three Rivers and other groups then sued the City, City officials, and federal agencies responsible for the security of the G-20 Summit, alleging that the denial of a permit violated their First Amendment rights and seeking an injunction. See Codepink Pittsburgh Women for Peace v. U.S. Secret Serv., 09-1235 (W.D.Pa. Sept. 17, 2009). Radley and other witnesses for the City testified at a hearing on the preliminary injunction and insisted that Three Rivers could not use the park. The District Court granted the preliminary injunction in part and required the City to permit Three Rivers to use the park for a demonstration during one day of the G-20 Summit. Seizure of Materials. Because Three Rivers’ demonstrators could not camp in the park overnight, it requested permission to store its tent, tables, chairs, and educational materials overnight in the park. Radley gave Three Rivers permission to store these items overnight in the park, stating that the City did not “plan to remove your vehicle or overnight tent,” but refused Three Rivers’ request to leave two people overnight to protect its materials because this would constitute overnight camping. In reliance on Radley’s statements, Three Rivers left its materials in the park but, by the following day, the items were gone. A City spokesperson denied that the police had taken Three Rivers’ property, telling a reporter, “It was Public Works.” Despite numerous calls to the City, Three Rivers has still not been able to recover its property or obtain compensation. Litigation. After the Coal Conference and G-20 Summit ended, Three Rivers and Seeds of Peace initiated this action against the City, naming as defendants Radley, Sellers, and Kurvaeh, as well as the City of Pittsburgh, its Mayor (Luke Ravenstahl), Director of Public Safety (Michael Huss), Police Chief (Nathan Harper), Assistant Police Chief (William Botcher), and unnamed Officers Doe 1-100. The defendants moved for partial dismissal of the complaint under Fed.R.Civ.P. 12(b)(6), asserting qualified immunity and arguing that the personal involvement of several officials had not been adequately pleaded. The District Court agreed and dismissed all claims against Ravenstahl, Huss, Harper, and Botcher but only some of the claims against Radley, Kurvaeh and Sellers. The District Court permitted Three Rivers to proceed with its First and Fourth Amendment claims against these defendants. Radley, Kurvaeh and Sellers appealed the District Court’s order. III. Jurisdiction and Standard of Review Because appellants moved to dismiss on the basis of qualified immunity, the District Court’s order partially denying the motion is a “collateral order” that is treated as final for purposes of 28 U.S.C. § 1291. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1946, 173 L.Ed.2d 868 (2009). We review de novo the denial of Radley’s motion to dismiss to determine whether Three Rivers’ complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. at 1949. IV. Discussion Qualified immunity is not merely a defense to liability but an immunity from suit and thus is a proper basis for a motion to dismiss under Rule 12(b)(6). Thomas v. Independence Twp., 463 F.3d 285, 291 (3d Cir.2006). In this case, the dispositive question for qualified immunity purposes is whether Three Rivers has sufficiently alleged that Radley violated its constitutional rights. See Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). At a minimum, “ ‘[a] defendant in a civil rights action must have personal involvement in the alleged wrongs’ to be liable.” Sutton v. Rasheed, 323 F.3d 236, 250 (3d Cir.2003) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)). To recover against Radley, Three Rivers was therefore required to allege facts showing that Radley “through [his] own individual actions, has violated the Constitution.” Iqbal, 129 S.Ct. at 1948. Three Rivers’ complaint makes only three allegations concerning Radley’s con duct and each falls short of this requirement. The complaint first alleges that: Beginning in June 2009, as a matter of policy and practice City of Pittsburgh officials, including Mayor Ravenstahl, Public Safety Director Huss, Police Chief Harper, Assistant Chief Bochter and Assistant Parks Director Radley, deliberately misled [Three Rivers] leaders about the availability of traditional public forums, failed to issue and deliver permits to [Three Rivers] after publicly claiming they had been approved, outright denied [Three Rivers’] permit applications for specious and discriminatory reasons, and directed employees and agents to engage in various forms of harassment and intimidation, including seizing supplies that were essential to [Three Rivers’] planned demonstrations. However, when the legal conclusions in this sentence are pared away, see Iqbal, 129 S.Ct. at 1950, we are left merely with allegations that Radley and a number of other defendants “failed to issue and deliver permits to [Three Rivers] after publicly claiming they had been approved, outright denied [Three Rivers’] permit applications .... ” Standing alone, this allegation is simply too vague to provide Radley “fair notice” of the claims against him and “the grounds upon which [they] rest[].” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint’s second allegation concerning Radley is more specific: Rad-ley was one of several City witnesses who testified at the Codepink preliminary injunction hearing and “insisted that the City could not allow [Three Rivers] to use Point State Park....” But Three Rivers does not allege that this testimony was false or misleading, and we fail to see how Radley’s presumably truthful testimony at a hearing could violate Three Rivers’ constitutional rights. Three Rivers argues that we can infer that Radley was the person most directly involved in the decision not to issue them a permit — and therefore liable for withholding the permit — because the City had him testify at the hearing. Even if Radley were the only City witness who testified at the hearing this inference would be a stretch, but the complaint alleges that Radley was merely one of several City witnesses, completely undermining the inference. Radley’s role in the permit decision should have been alleged in the complaint, rather than left to inference. See Iqbal, 129 S.Ct. at 1950. Finally, the complaint alleges that Radley permitted Three Rivers to store its tent and other materials at Schenley Park overnight, told it that the City “did not plan to remove [its] vehicle or overnight tent,” and refused Three Rivers’ request to have two members guard the tent and materials overnight. Despite this statement, the City’s Public Works Department allegedly seized Three Rivers’ tent and materials. These allegations suggest at most that Radley negligently failed to communicate with Public Works to ensure that Three Rivers’ property would not be seized. This does not rise to the level of a Fourth Amendment violation. See, e.g., Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 703, 172 L.Ed.2d 496 (2009) (“[P]olice negligence in obtaining a warrant [does not] rise to the level of a Fourth Amendment violation.”); Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir.2001) (negligence leading to violent confrontation not sufficient for Fourth Amendment excessive force claim). Three Rivers argues that, even if its pleadings are deficient, it should be given an opportunity to amend its complaint to allege in greater detail Radley’s involvement in the conduct giving rise to its claims. See Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir.2010) (“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile.”). Because Three Rivers has not described in detail the additional factual allegations it would make, we leave it to the District Court to consider on remand whether leave should be given to amend the complaint pursuant to Fed. R.Civ.P. 15(a). V. Conclusion Three Rivers concedes that its claims against Sellers and Kurvach should have been dismissed. We conclude that the complaint fails to state a claim against Radley. Accordingly, we will vacate the order of the District Court to the extent that it denied appellants’ partial motion to dismiss Three Rivers’ claims against them and remand this case to the District Court with instructions to consider whether Three Rivers should be given leave to amend the complaint. . Three Rivers has conceded that it has not adequately alleged claims against Officers Kurvach and Sellers and that these claims should be dismissed. Accordingly, we focus on Three Rivers’ claims against Radley. . Three Rivers also alleges that City officials (1) obstructed its demonstration efforts in Schenley Park by falsely insisting — both privately to Three Rivers and in testimony in the Codepink lawsuit — that the City had a policy against overnight camping in the park; (2) delayed issuance of a permit to use Schenley Park for a multi-day event; and (3) hindered Three Rivers' access to Schenley Park on Thursday, September 24, despite prior assurances that it would not do so. None of these allegations mentions Radley.

11343824-10995

ORDER EDWARD C. REED, JR., District Judge. Before the court is the federal defendants’ Objection to Notice of Association of Counsel and Notice of Appearance (Doc. # 52). The federal defendants object to the Notice, filed by Duval Ranching Company et al, of the entry by Elko. County District Attorney Gary Woodbury of an appearance for the private plaintiffs in this action (Doc. #53). Also before the court is the federal defendants’ Motion for Protective Order (Doc. #54). The court’s disposition of the latter motion (Doc. # 54) depends entirely on its ruling on the objections (Doc. # 52) to District Attorney Woodbury’s appearance in this matter. State law prohibits the private practice of law by a district attorney. Nev.Rev.Stat. § 245.0435. But because the phrase “private practice of law” is defined in that statute as the legal representation, for compensation, of a person or organization other than the district attorney’s governmental client, Mr. Woodbury has determined that his representation of the private plaintiffs herein gratis is not prohibited by Section 245.0435. At a hearing on the federal defendants’ objections to District Attorney Woodbury’s appearance on behalf of the private plaintiffs, Mr. Woodbury argued that despite his continued receipt of his county salary during this action, he does not represent the plaintiffs “for compensation.” Mr. Woodbury’s reading of Section 245.0435 in effect requires the words “for compensation” to be construed as if they read “for compensation by the private client.” Obviously the statute says no such thing. The federal defendants have argued that Mr. Woodbury’s continued receipt of his salary as District Attorney belies his assertion that he appears herein without compensation. In response, Mr. Woodbury argues that the federal defendants' reading of the statute renders the exemption nugatory: If a district attorney must forswear his salary during the course of representing a private client, a sitting district attorney's abffity, for example, to appear on behalf of the estate of a family member, or to negotiate a divorce, or a conveyance of real property, is very likely eliminated as a practical matter. The court must construe Section 245.0435 unaided by published opinions of a Nevada court, by opinions of Nevada's attorney general, or by documented evidence of legislative intent. It does appear illogical to require a district attorney who wishes to represent a client gratis to resign his position, or renounce his salary, during the period he represents a private client. The federal defendants' reading of the statute would, as a practical matter, defeat the apparent purpose of the statute to permit district attorneys to take on relatively simple private legal work, for no extra money, and which do not involve matters likely to cross their official desks. For that reason, the court must decline to read the phrase "for compensation" to require a district attorney wishing to take on such matters to do without their salaries for the duration of the private representations. That said, the court is obliged to note for the record its reservations regarding the use to which Mr. Woodbury and Elko County seek to put Section 245.0435. The court seriously doubts that the legislature considered that statute's application to cases like the one sub judice. As the court has already indicated, it does not appear reasonably capable of question that the statute was intended to cover relatively simple, brief, routine matters wholly unconnected to the public work of a district attorney: the probate of relatives' or friends' estates, the conveyance of realty, the preparation of divorce papers, and the like. The present action bears little, if any, resemblance to such cases. Elko County itself is formerly a party to this litigation over the legality of federal regulation of local residents' rights in public lands. Mr. Woodbury previously attempted to appear in his official capacity on behalf of these same private plaintiffs. At the hearing on the federal defendants' objections to his appearance pursuant to Section 245.0435, Mr. Woodbury declared Elko County's "legal interest" in the outcome of this litigation. Mr. Woodbury admitted that the Elko County Board of Commissioners is keenly interested in pursuing this action. And the court is forced to wonder from whose pockets come the funds-other than Mr. Woodbury's salary-needed to conduct this litigation. Who is paying deposition costs, filing fees, process servers? The County previously expressed its desire to participate in this lawsuit, and argued that the private plaintiffs lacked the financial wherewithal to litigate independently of the County. The court doubts Mr. Woodbury himself is footing the bill, despite his claim at the hearing that he would have taken this case even were he not District Attorney of Elko County. Section 245.0435 must be read in light of the rules of professional conduct. The stat-• ute cannot have been intended to permit district attorneys to engage in the representation of persons or organizations other than their governmental clients where the subject matter of the private representation is of great interest to the governmental client. The court cannot impute to the legislature an intent to create such a grave risk of a conflict of interest between a district attorney's statutory duty and the attorney's representation of a private client. The statute should be read to permit such private practice only when the subject matter of the representstion of the private client will not interfere with, or be influenced by, the public policy of the county which is the district attorney's primary client. Nevertheless, the court, being unable to agree with the federal defendants" more restrictive ~reading of Section 245.0435, the court cannot say that Mr. Woodbury's appearance on behalf of the private plaintiffs does not comport with the letter, if not the spirit, of the statute. The court's inquiry, however, is not yet at an end. Even if the court concedes, as it must, that Mr. Woodbury's representation of the private plaintiffs can meet the requirements of Section 245.0435, there remains the question whether the representation may constitute a violation of the ethical rules governing attorneys’ professional conduct. Nevada Supreme Court Rule 158(6)(b) prohibits a lawyer from receiving compensation for representing a client from a person or entity other than that client unless “there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship_” No doubt Mr. Woodbury’s position is that he is not “receiving compensation for representing” the private plaintiffs from the County. But he is being paid by Elko County and appears still to be answerable to the Elko County Commissioners with respect to the subject matter of the representation. At the hearing on the federal defendants’ objections to his appearance, District Attorney Woodbury conceded that during the course of this action he would most likely “carefully consider” the advice of the County Commissioners. Mr. Woodbury declared this action, and his representation of the private plaintiffs therein to be in the “best interest” of the Commissioners, the County, and his private clients. The possibility that the County Commissioners may influence Mr. Woodbury’s professional judgment with respect to his representation of the private plaintiffs therefore creates a potential for a conflict of interest, in violation of Supreme Court Rule 158. Assuming Mr. Woodbury’s representation of the private plaintiffs to be technically within the letter of Supreme Court Rule 158 and Nev.Rev.Stat. § 245.0435, he has placed himself in a position wherein in the exercise of his professional judgment on behalf of his private clients could be affected by his public responsibility to the County. See In re Discipline of Singer, 109 Nev. 1117, 865 P.2d 315, 317 (1993). The court must recognize, however, that the plain language of Supreme Court Rule 158 does not appear to prohibit Mr. Wood-bury’s representation of the private plaintiffs in this action. In accordance with the court’s determination that Mr. Woodbury is not, sense strictu, being paid for representing the private plaintiffs within the meaning of Nev. Rev.Stat. § 245.0435, the court must likewise conclude that he is not “accepting compensation for representing a client from one other than the client” within the literal meaning of Supreme Court Rule 158. Nevada follows the American Bar Association’s Model Rules of Professional Conduct; Supreme Court Rule 158 is derived from ABA Model Rule 1.8. To this extent Nevada’s ethical rules are somewhat more liberal than the ABA’s Model Code of Professional Responsibility. Nevertheless, the ethical principles enshrined in the Model Code are useful as a guide for the professional conduct of attorneys, and for that reason the court deems it appropriate to cite some provisions of that Code. For example, under the Model Code, an attorney may be subject to discipline for accepting employment when the exercise of professional judgment on behalf of a client will or reasonably may be affected by the attorney’s own financial, business, property or personal interest. ABA DR 5-105. An attorney may also be subject to discipline for accepting employment where her independent professional judgment could be compromised. DR 9-101. See, e.g., Lyman v. Grievance Committee, 154 A.D.2d 223, 552 N.Y.S.2d 721 (1990) (censuring district attorney for representing private clients in civil matters which were also the subject of his official investigation). On the other hand, Nevada Supreme Court Rule 157(2) provides: A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: the lawyer reasonably believes the representation will not be adversely affected; and the client consents, preferably in writing, after consultation. Rule 157 is derived from the American Bar Association’s Model Rule of Professional Conduct 1.7, which in turn derives from Canon 5 of the former ABA Model Code of Professional Responsibility. The rule is de signed to ensure an attorney’s professional loyalty to her client, which loyalty is an essential element in the lawyer-client relationship. The official comment to ABA Model Rule 1.7 warns that loyalty to a client suffers when a lawyer cannot consider, recommend or carry out an otherwise appropriate course of action on the client’s behalf as a result of the lawyer’s other responsibilities or interests. For example, an impermissible conflict of interest may arise because of a disagreement as to litigation strategy, or the fact that there may be substantially different possibilities for settlement among the clients and the third party. ABA Model Rule 1.7 Official Comment.

10539465-10083

BISSELL, Circuit Judge. The San Carlos Irrigation and Drainage District (District) appeals the United States Claims Court’s judgment granting the government’s summary judgment motion and dismissing the complaint. See San Carlos Irrigation & Drainage Dist. v. United States, 15 Cl.Ct. 197 (1988). We reverse and remand. BACKGROUND In 1924, Congress authorized construction of the Coolidge Dam across the Gila River as part of the San Carlos Irrigation Project (Project). Act of June 7, 1924, ch. 288, 43 Stat. 475. The stated purposes of the Act were to “provid[e] water for the irrigation of lands allotted to Pima Indians on the Gila River Reservation, Arizona,” and to “irrigat[e] such other lands in public or private ownership, as in the opinion of the [Secretary of the Interior] can be served ... without diminishing the supply necessary for said Indian lands.” Id. at 475. The total cost of the Project was to be distributed equally per acre among the Indian lands and the public or private lands served by the Project. Id. The Act authorized the Secretary to enter into a construction repayment contract with a district embracing the publicly-owned or privately-owned lands. Id. at 476. Four years later, Congress supplemented the Act to authorize the Secretary of the Interior (Secretary) to develop electrical power at the Coolidge Dam, to recoup power plant construction costs under a repayment contract, to sell the dam’s surplus power, and to apply the net revenues to reimburse the government for power plant construction, irrigation project construction, and operation and maintenance of the irrigation project, in that order. Act of March 7, 1928, ch. 137, 45 Stat. 200, 210-11. The non-Indian landowners organized the District to represent them in dealings with the Secretary. On June 8, 1931, the District entered into a repayment contract with the government (Repayment Contract). The Repayment Contract defined the Project Works as including, inter alia, the Coolidge Dam, the San Carlos Reservoir, and everything pertaining thereto, including the power plant and electrical transmission lines. The government agreed to continue to maintain all of the Project Works, and the District agreed to pay annually five percent of the Project’s construction costs and all operating and maintenance costs. The Repayment Contract was subsequently supplemented to set the amount of annual repayment on a sliding scale according to the amount of water in the reservoir. After the dam’s completion in 1931, the government through the Bureau of Indian Affairs assumed exclusive control and management of the Project Works’ operation and maintenance. Subsequently, the Secretary executed a Joint Works Order defining the Joint Works to include the Coolidge Dam, San Carlos Reservoir and electrical power generating, transmission and distribution system, and continuing the government’s responsibility of operating and maintaining those structures. The Order gave the District responsibility for operating and maintaining the segments of the Project Works serving the District lands exclusively. On October 1,1983, a storm caused large inflows of water into the San Carlos Reservoir. The reservoir began to spill over the spillway crest two days later. The electrical switchyard located between the dam and the powerhouse began to settle, causing the soil to cave in and result in damage to the switchyard’s electrical equipment. The dam was shut down and evacuated, leaving no way to generate electrical power or store water. The District filed suit for breach of its contracts and agreements with the government. The District sought, inter alia, specific damages for one-half of the irrigation water lost and one-half of the electrical energy lost as a result of the dam’s inoper-ability. The government moved for summary judgment arguing, inter alia, that the Repayment Contract does not give rise to a contractual duty to operate and maintain the spillway gates in order to benefit the District. The Claims Court found that the government “expressly agreed ... to operate and maintain the project,” San Carlos, 15 Cl.Ct. at 203, but characterized the District’s complaint as only alleging the breach of two contractual duties — (1) to maintain the dam’s designed storage capacity by properly operating and maintaining the spillway gates and (2) to generate and sell electrical power by properly operating and maintaining the electrical generation system. Id. at 202. In granting the government’s summary judgment motion, the Claims Court concluded that the duties alleged by the District were not created by the Repayment Contract and, therefore, the District had failed to state a claim for which relief could be granted. Id. at 203-04. ISSUES 1. Whether the Claims Court erred in granting summary judgment. 2. Whether the District’s claim sounds in tort, thus precluding the Claims Court from exercising jurisdiction. OPINION I To recover for breach of contract, a party must allege and establish: (1) a valid contract between the parties, (2) an obligation or duty arising out of the contract, (3) a breach of that duty, and (4) damages caused by the breach. See Giroir v. MBank Dallas, N.A., 676 F.Supp. 915, 918-19 (E.D.Ark.1987); see also Pennsylvania, Dept. of Transp. v. United States, 643 F.2d 758, 762 (Ct.Cl.) (noting “the well-established rule ... that a ‘government contractor bears the burden of establishing the fundamental facts of liability, causation and resultant injury’ ” (citations omitted)), cert. denied, 454 U.S. 826, 102 S.Ct. 117, 70 L.Ed.2d 101 (1981). The District’s complaint was incorrectly recast by the Claims Court as asserting only the specific duties of maintaining the spillways and maintaining the electrical generation facilities. The Claims Court failed to recognize that the District also expressly alleged a contractual duty requiring the government to operate and maintain the entire Joint Works. Complaint at 7, 8, San Carlos Irrigation & Drainage District v. United States, 15 Cl.Ct. 197 (1988). The Claims Court concluded that the Repayment Contract could not be interpreted to show that the damages for lost water and lost electricity sought by the District were within the parties’ contemplation. San Carlos, 15 Cl.Ct. at 202. Reliance upon that conclusion to hold that the District had failed to allege a duty which, if breached, would allow recovery of damages is inappropriate. Such an analysis is relevant to determining whether the District can prove that it has suffered any consequential damages. Cf. Prudential Ins. Co. of Am. v. United States, 801 F.2d 1295, 1300 (Fed.Cir.1986) (holding that consequential or special damages, in order to be recoverable, must be foreseeable at the time the contract is executed), cert. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). Because the District alleged that the government has breached certain contractual duties and that damages occurred as a result of those breaches, the District has properly stated a claim for which relief can be granted. Whether a contract creates a duty is a legal question of contract interpretation and thus freely reviewable by this court. See George Hyman Constr. Co. v. United States, 832 F.2d 574, 579 (Fed.Cir.1987). The Claims Court correctly held that the Repayment Contract created a general duty to operate and maintain the entire Joint Works, San Carlos, 15 Cl.Ct. at 203, but then did not allow the District to prove that the duty had been breached. Instead, the Claims Court focused on the damages issue discussed above. We construe that general duty as including within it the specific duties to operate and maintain the spillways and the electrical generation system. The government agreed to continue to maintain all of the Project Works. Moreover, the Repayment Contract expressly provides that the government will have exclusive control over the Project Works until Congress dictates otherwise. The Joint Works Order did not alter that duty with respect to the newly-defined Joint Works. The plain language of the Repayment Contract convinces us that the government contracted to keep the entire Joint Works, including the spillways and electrical generation system, in a state of repair and to safeguard against their failure. See George Hyman, 832 F.2d at 579 (acknowledging the task to interpret a contract “so that the words of [the unambiguous contract] provisions are given their plain and ordinary meaning”); Fort Vancouver Plywood Co. v. United States, 860 F.2d 409, 413 (Fed.Cir.1988) (applying the plain language analysis of contract interpretation). The Claims Court’s error in failing to recognize that the District had established such a contractual duty requires us to reverse the summary judgment as based on an erroneous legal interpretation. See Palumbo v. Don-Joy Co., 762 F.2d 969, 976 n. 5, 226 USPQ 5, 8 n. 5 (Fed.Cir.1985) (ruling that “legal errors made by the district court ... require reversal of its grant of summary judgment”). If the District can prove that the government has breached its duty to maintain the Joint Works, including the spillways and the electrical generation system, general damages may be recovered. See, e.g., Commerce Int’l Co. v. United States, 338 F.2d 81, 86 (Ct.Cl.1964) (recognizing that, in addition to a breach, the plaintiff in a contract case must prove the damages ensuing from that breach). The District may be able to recover consequential damages if it can prove that they were foreseeable at the time of contract formation. Prudential, 801 F.2d at 1300. II The Claims Court alternatively based its decision on the ground that the claim alleged by the District sounds in tort, explaining that the Tucker Act specifically precludes the Claims Court from exercising jurisdiction over claims sounding in tort. See 28 U.S.C. § 1491(a)(1) (1982). Interpreting the District’s claim as asserting negligent maintenance of the spillways and the power plant, the Claims Court held that it was not the proper forum to hear the claim. San Carlos, 15 Cl.Ct. at 204.

252212-12865

ORDER AND JUDGMENT HARTZ, Circuit Judge. I. BACKGROUND Defendant Michael P. McElhiney was convicted of conspiracy to distribute and possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C), and aiding and abetting the distribution of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. The convictions stemmed from Defendant’s alleged participation in a drug smuggling operation while an inmate at the United States Penitentiary in Leavenworth, Kansas. Prior to the trial which resulted in the two convictions at issue on this appeal, Defendant was tried on two separate occasions for his alleged involvement in the drug smuggling operation. He was initially charged only with conspiracy to distribute heroin and to possess heroin with the intent to distribute. After the first trial resulted in a hung jury, Defendant was convicted at a second trial in September and October of 1999. This court then reversed and remanded for a new trial due to an impermissibly coercive Allen charge. United States v. McElhiney, 275 F.3d 928 (10th Cir.2001). On March 27, 2002, a superseding indictment was issued. The indictment again charged Defendant with conspiracy, but also included a charge of aiding and abetting in the distribution of heroin. After being convicted at the third trial, Defendant filed this appeal, raising four issues, which we discuss in turn. II. DISCUSSION A. Admission of Sahakiaris Prior Testimony Defendant challenges the district court’s decision to admit a transcript of David Sahakiaris testimony from Defendant’s second trial. After testifying at Defendant’s second trial, Sahakian was indicted on charges arising from the same alleged drug smuggling operation, and he consequently invoked his Fifth Amendment right not to testify at the third trial. Defendant argues that the prior testimony was improperly admitted because (1) the requirements of Federal Rule of Evidence 804(b)(1) were not satisfied; (2) the admission of the testimony violated his Sixth Amendment right of confrontation; and (3) the government engaged in misconduct in charging Sahakian in order to ensure that he would invoke his Fifth Amendment privilege in the third trial. We review the district court’s admission of the testimony under Rule 804(b)(1) for abuse of discretion. O’Banion v. Owens-Corning Fiberglas Corp., 968 F.2d 1011, 1014 (10th Cir.1992). The district court’s legal conclusions regarding the rules of evidence and the confrontation clause, however, are reviewed de novo. United States v. Price, 265 F.3d 1097, 1102-03 (10th Cir.2001). Federal Rule of Evidence 804(b)(1) excludes from the general rule barring admission of hearsay, “[tjestimony given as a witness at another hearing of the same or a different proceeding ... if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination,” as long as that witness is unavailable to testify. There is no dispute that Sahakiaris invocation of his constitutional privilege rendered him unavailable. But Defendant contends that “[hje did not have the same opportunity or motive to develop the testimony of the witness as it related to Count II of the superseding indictment against him,” because of the addition of the second charge (aiding and abetting) between the time of the second and third trials. Aplt. Br. 10. We disagree. Rule 804(b)(1) does not require that the prior testimony be given in the context of identical charges. See, e.g., United States v. Salerno, 505 U.S. 317, 326, 112 S.Ct. 2503, 120 L.Ed.2d 255 (1992) (Blackmun, J., concurring) (“ ‘similar motive’ does not mean ‘identical motive’ ”); Murray v. Toyota Motor Distributors, Inc., 664 F.2d 1377, 1379 (9th Cir.1982) (for former testimony to be admissible under Rule 804(b)(1), “[tjhe motive need only be ‘similar,’ not identical”). Defendant had every incentive, and opportunity, to dispute Sahakiaris testimony at the second trial. He has not pointed to any statement by Sahakian that he would have wanted to challenge at the third trial but had no interest in challenging at the second trial. Defendant does not suggest that the Confrontation Clause requires more than Rule 804(b)(1), so we likewise reject his Confrontation Clause claim. Finally, we reject Defendant’s suggestion that the government committed misconduct by charging Sahakian with a crime following his testimony at the second trial in order to procure his unavailability at the third trial and thereby “obtain evidentiary value” from his silence. Aplt. Br. at 12. As the government notes, this argument is refuted by the fact that Sahakian was charged long before Defendant’s conviction was reversed in December 2001. B. Admission of Portions of Defendant’s Prior Closing Argument Defendant next argues that the district court erred in admitting statements he made while representing himself at the second trial. During closing argument he discussed notes (“kites”) sent to request heroin. The following statements made during that argument were introduced at the third trial: “The biggest conspiracy in any of those kites shown is I’m trying to help David get a shot of dope. I don’t use heroin. He’s my friend, he does, I will help him.... Slim did not bring me no heroin, not once. Those kites are simply saying Dave wanted a shot of dope and I helped him get it.” Trial Tr. at 713-14. Defendant asserts that these statements were improperly considered to be admissions by a party. See Fed. R. of Evid. 801(d)(2)(A). In addition, he contends that the district court should have addressed whether Federal Rules of Evidence 403 and 404(b) barred their admission, even though he did not object on the basis of either rule at trial. We review the district court’s decision to admit Defendant’s statements under Rule 801(d)(2)(A) for abuse of discretion. See United States v. Mitchell, 113 F.3d 1528, 1531 (10th Cir.1997). Because Defendant did not object based on Rules 403 or 404(b) at trial, we will reverse on the basis of those rules only if the admission of the statements- amounted to plain error. See United States v. Martinez, 76 F.3d 1145, 1150 (10th Cir.1996). Under Rule 801(d)(2)(A) a party’s own statement, when offered against him, is not hearsay. Defendant asserts that the statements he made during the prior closing argument do not constitute admissions under Rule 801(d)(2)(A), because the purpose of closing argument is to persuade, not to express fact. The district court rejected this argument, concluding that the statements were admissible admissions because they “represent an inculpatory interpretation of the kites from a person in the position to know what they meant.” Dist. Ct. Order (Dec. 11, 2002) at 2. We agree. It is immaterial whether Defendant was attempting to persuade the jury or to provide the jury with factual information. As for Rule 404(b), it provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). But Defendant’s statements relate directly to the crimes at issue in this case, whereas “ ‘[ojther bad acts’ means acts that are not part of the events giving rise to the present charges.” United States v. Gorman, 312 F.3d 1159, 1162 (10th Cir.2002). The district court did not commit plain error in faffing to consider Rule 404(b) or in not excluding the statements under Rule 404(b). Likewise, Rule 403, which excludes irrelevant or marginally relevant evidence, does not help Defendant. Although De fendant’s argument appears primarily to be that the district court improperly failed to consider the rule, he does not explain why the rule demonstrates that the statements were improperly admitted. Nor do we see any error, much less plain error. Thus, we hold that the district court properly admitted the statements made by Defendant during closing argument at the second trial. C. Prosecutorial Vindictiveness Defendant’s third argument is that the aiding-and-abetting charge was added (following the reversal of his conviction in the second trial) in retaliation for his exercise of his right to appeal and in retaliation for his pursuit of a civil action against the United States. We review the district court’s factual findings relating to this argument for clear error. United States v. Raymer, 941 F.2d 1031, 1039 (10th Cir.1991). But “our review of the legal principles which guide the district court is de novo.” Id. To prevail on a claim of prosecutorial vindictiveness, a defendant “must establish either (1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness.” Id. at 1040. Upon such a showing, “the burden shifts to the prosecution to justify its decision with legitimate, articulable, objective reasons.” Id. “There is no vindictiveness as long as the prosecutor’s decision is based upon the normal factors ordinarily considered in determining what course to pursue, rather than upon genuine animus against the defendant for an improper reason or in retaliation for exercise of legal or constitutional rights. In the absence of procedural unfairness to the defendant, the government may increase charges or make them more precise based upon new information or further evaluation of the case.” Id. at 1042 (internal quotation marks and citations omitted). Defendant did not raise in the district court his primary argument on appeal— that the aiding-and-abetting charge was added in retaliation for the exercise of his right to appeal. We therefore decline to address the argument. See Smith v. Rogers Galvanizing, 128 F.3d 1380, 1385-86 (10th Cir.1997). As for Defendant’s contention that he was tried for a third time (with the addition of a second charge) in retaliation for his pursuit of a civil action, the district court observed that Defendant had been charged with conspiracy prior to the filing of his civil suit. The court also mentioned that there was “no proof that the person who made the decision to try this case a third time ... had any knowledge of the civil lawsuit.” Dist. Ct. Order (Aug. 2, 2002) at 13. Ultimately, the court held that Defendant had not demonstrated either actual vindictiveness or a reasonable likelihood of vindictiveness, instead finding that the prosecutor considered “factors which may legitimately be considered while making a decision to prosecute a case.” Id. at 14. Chief among these factors, in our view, is that the superseding indictment was issued after Defendant’s admission during closing argument at his second trial that he had helped a friend obtain heroin. We accordingly reject Defendant’s argument that “the decision to bring an additional charge against him after his successful appeal was not based on any new evidence or change in circumstances.” Aplt. Br. at 18. We affirm the district court’s denial of the motion to dismiss on the basis of prosecutorial vindictiveness. D. Denial of the Motion for New Trial Defendant moved for a new trial on the grounds that there was insufficient evi dence to support the conspiracy conviction and that there was juror misconduct. The district court properly denied the motion. We review the district court’s denial of the motion for new trial for abuse of discretion. Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273, 1283 (10th Cir. 2003). Sufficiency of the evidence, however, is a question of law, which we review de novo. United States v. Carter, 130 F.3d 1432, 1439 (10th Cir.1997). “Evidence is sufficient to support a conviction if the evidence and reasonable inferences drawn therefrom, viewed in the light most favorable to the government, would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt.” Id. Defendant founds his insufficiency argument on the assertion that inmate Alan Hawley could not have been a member of the conspiracy because his participation was coerced. But even assuming the legitimacy of this contention, Defendant was alleged to have participated in a conspiracy not only with Hawley, but also with Sahakian and other persons. Regardless of whether Hawley was a voluntary participant, there was adequate evidence that Defendant participated in a conspiracy with Sahakian. To support his claim of juror misconduct, Defendant points to the allegation that jurors engaged in premature deliberations. While the government was still presenting its case in chief, a defense witness (Dr. Lott) reportedly overheard a conversation among three jurors in which they indicated that they thought Defendant was guilty of dealing in illegal drugs. Specifically, Dr. Lott claimed to have overheard one of the jurors state “he’s guilty of drug dealing.” Mot. for New Trial Hr’g Tr. at 8.

12522011-30399

SCIRICA, Circuit Judge Aliens who are unlawfully present in the United States and ordered removed may apply for cancellation of that removal if they, among other things, have maintained a continuous physical presence in the United States for at least ten years and have been a person of good moral character for such period. Congress modified the calculation of the physical presence requirement when it amended the Immigration and Nationality Act in 1996: Under the "stop-time rule," the physical presence period ends when the Department of Homeland Security serves the alien with a notice to appear. As a result, aliens cannot continue to accrue physical presence time during the pendency of (often lengthy) removal proceedings and appeals. At issue is whether the stop-time rule applies to the time period during which an alien must exhibit good moral character. Petitioner Pablo Antonio Mejia-Castanon maintains that it does, such that events occurring after the service of a notice to appear cannot be used to evaluate his good moral character. This time distinction is critical to Petitioner's application for cancellation of removal because he admitted to helping family members illegally enter the United States during the pendency of his application, a transgression that indisputably undermines his ability to demonstrate good moral character. Under Petitioner's interpretation, the stop-time rule operates to exclude these events from the evaluation of his moral character. But if the stop-time rule does not truncate the good moral character window, he will not satisfy the good moral character requirement and will be statutorily ineligible for cancellation of removal. The Board of Immigration Appeals rejected Petitioner's reading of the statute, and two courts of appeals have deferred to the Board's interpretation under Chevron . For the reasons that follow, we agree with our sister circuits and hold that the Board's interpretation is entitled to Chevron deference. Under that interpretation, the stop-time rule does not apply to the good moral character requirement. Instead, the relevant time period on which to evaluate an alien's good moral character is the ten-year period prior to the final administrative decision on an alien's application for cancellation of removal. We will deny the petition. I. Under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq. , an alien who enters the United States without permission, and who is not admitted or paroled, is removable. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(A). The Department of Homeland Security may remove such an alien by initiating removal proceedings before an Immigration Judge, see id. § 1229a, and providing written notice to the alien by serving him with a "notice to appear," id. § 1229(a)(1). The notice to appear informs the alien, among other things, of the "time and place" of the removal hearing, the "legal authority under which the proceedings are conducted," and the "charges against the alien." Id. § 1229(a)(1)(G)(i), (B), (D). An alien served with a notice to appear may challenge his removal on the merits or admit his removability while seeking certain discretionary relief. A. Prior to amendments in 1996, one type of discretionary relief an alien could seek was suspension of deportation. The INA provided that "the Attorney General may, in his discretion, suspend deportation" of an alien if he (1) had "been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application;" (2) "prove[d] that during all of such period he was and is a person of good moral character;" and (3) was "a person whose deportation would ... 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)(1) (1994) ; see also I.N.S. v. Chadha , 462 U.S. 919, 923-24, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). "Even if these prerequisites [we]re satisfied," however, "it remain[ed] in the discretion of the Attorney General to suspend, or refuse to suspend, deportation." I.N.S. v. Rios-Pineda , 471 U.S. 444, 446, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985) (citations omitted). Under this pre-1996 formulation, the Board of Immigration Appeals interpreted the physical presence and good moral character time periods to be identical. See In re Ortega-Cabrera , 23 I. & N. Dec. 793, 794 (B.I.A. 2005) (citations omitted). And because the Board construed "such application" in the phrase "immediately preceding the date of such application," 8 U.S.C. § 1254(a)(1) (1994), to be "a continuing one," the seven-year time period for both "continu[ed] to accrue" through the Board's final administrative decision on an alien's application for cancellation of removal. Ortega-Cabrera , 23 I. & N. Dec. at 794. In other words, an alien could accrue the required seven years of physical presence during the pendency of her removal proceedings and appeals, and her moral character would also be evaluated until the final adjudication of her application. This statutory structure was problematic, however, because it created a "substantial incentive" for those aliens facing deportation "to prolong litigation" and to "stall[ ] physical departure in the hope of eventually satisfying" the seven-year requirement. Rios-Pineda , 471 U.S. at 450, 105 S.Ct. 2098. Congress believed suspension of deportation was being abused and exploited, particularly by aliens seeking to "accrue time toward the seven year threshold even after they ha[d] been placed in deportation proceedings." H.R. Rep. 104-469, at 122 (1996); see also In re Cisneros , 23 I. & N. Dec. 668, 670 (B.I.A. 2004) ("[A]liens in deportation proceedings had knowingly filed meritless applications for relief or otherwise exploited administrative delays in the hearing and appeal process in order to 'buy time,' during which they could acquire a period of continuous presence that would qualify them for forms of relief that were unavailable to them when proceedings were initiated."). Congress also believed the " 'extreme hardship' standard"-the final statutory requirement for suspension of deportation--"ha[d] been weakened by recent administrative decisions." H.R. Rep. No. 104-828, at 213 (1996) (Conf. Rep.). B. To address these concerns, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). See Pub. L. No. 104-208, Div. C, Tit. III, Subtit. A, sec. 304(a)(3), § 240A, 110 Stat. 3009-594 to 3009-596. Relevant here, IIRIRA amended the INA to its current form by replacing suspension of deportation with a new and more limited form of relief called "cancellation of removal." See 8 U.S.C. § 1229b ; see also H.R. Rep. No. 104-828, at 213 (1996) (Conf. Rep.). And IIRIRA created the stop-time rule, designed to prevent an alien from accruing physical presence time during the pendency of immigration proceedings. 1. IIRIRA introduced significant differences for aliens seeking relief from removal: Congress extended the length of time required for an alien to be physically present from seven to ten years, excluded from eligibility those aliens who were convicted of certain offenses under the INA, and strengthened the hardship requirement from "extreme hardship" to an "exceptional and extremely unusual hardship." Compare 8 U.S.C. § 1254(a)(1) (1994) (repealed), with 8 U.S.C. § 1229b(b)(1)(A)-(D). See also H.R. Rep. No. 104-828, at 213 (1996) (Conf. Rep.) ("The managers have deliberately changed the required showing of hardship from 'extreme hardship' to 'exceptional and extremely unusual hardship' to emphasize that the alien must provide evidence of harm to his spouse, parent, or child substantially beyond that which ordinarily would be expected to result from the alien's deportation."). Under current law as adopted in IIRIRA, to be eligible for cancellation of removal an alien must: (1) have "been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;" (2) have "been a person of good moral character during such period;" (3) have "not been convicted " of certain offenses under the INA, including crimes involving moral turpitude, certain felonies, and document fraud; and (4) must "establish[ ] that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. § 1229b(b)(1)(A)-(D) (emphasis added). If an alien satisfies these four requirements, an Immigration Judge may grant cancellation of removal after balancing "the favorable and adverse factors" of the alien's particular case. In re A-M- , 25 I. & N. Dec. 66, 76 (B.I.A. 2009). 2. To eliminate the incentive to delay immigration proceedings to accrue physical presence time, IIRIRA created the stop-time rule in a separate subsection titled "Special rules relating to continuous residence or physical presence." 8 U.S.C. § 1229b(d). Relevant here, the stop-time rule provides, "[f]or the purposes of [cancellation of removal]" an alien's period of continuous physical presence "shall be deemed to end ... when the alien is served a notice to appear under section 1229(a)." Id. § 1229b(d)(1). The stop-time rule is only triggered upon service of a notice to appear "that, at the very least, 'specif[ies]' the 'time and place' of the removal proceedings." Pereira v. Sessions , --- U.S. ----, 138 S. Ct. 2105, 2114, 201 L.Ed.2d 433 (2018) (quoting 8 U.S.C. § 1229(a)(1)(G)(i) ) (alteration in original). Prior to Pereira , a number of other courts of appeals had adopted a Board interpretation finding § 1229b(d)(1) "does not impose substantive requirements" on notices to appear. In re Camarillo , 25 I. & N. Dec. 644, 647 (B.I.A. 2011). Pereira dispatched with this understanding, characterizing § 1229(a)(1) as a definitional provision establishing hearing time and place among the minimum contents needed for a notice to appear to trigger the stop-time rule. In sum, if an alien is served with a notice to appear prior to accruing sufficient physical presence time, he cannot satisfy the physical presence requirement--and is therefore ineligible for cancellation of removal--no matter how long his immigration proceedings continue. Service of a notice to appear that fails to set a hearing time and place does not trigger the stop-time rule. C. To be eligible for cancellation of removal, an alien also must have "been a person of good moral character" during a continuous ten-year period. 8 U.S.C. § 1229b(b)(1)(B). Under the INA, "[n]o person shall be regarded as, or found to be, a person of good moral character who," during the relevant time period satisfies any of a lengthy list of prohibited conduct. 8 U.S.C. § 1101(f) ; see also id. § 1101(f)(1)-(9). The list includes, for example, being "a habitual drunkard," id. § 1101(f)(1), deriving income "principally from illegal gambling activities," id. § 1101(f)(4), and giving false testimony to gain immigration benefits, id. § 1101(f)(6). Relevant here, an alien is not a person of good moral character if he engaged in alien smuggling activities. Id. § 1101(f)(3). II. A. Petitioner Pablo Antonio Mejia-Castanon is a citizen of Guatemala who entered the United States without permission in 2002. Years later, the Department of Homeland Security sought to remove him and served him with a document labeled "Notice to Appear" on October 17, 2013. This document specified the allegations against Petitioner and identified the legal authority for the removal proceedings against him, but it provided for a hearing "on a date to be set at a time to be set." App. 837. On November 13, 2013, Petitioner was served a notice of hearing, specifying the time and place of his removal proceedings. At a preliminary hearing before an Immigration Judge, Petitioner admitted to unlawfully entering the United States, conceded he was removable, and sought discretionary relief in the form of cancellation of removal, or alternatively, voluntary departure. See 8 U.S.C. §§ 1229b(b), 1229c. On January 9, 2017, the Immigration Judge held a hearing on the merits of Petitioner's cancellation of removal application. During this hearing, Petitioner admitted to paying a total of $8,000 to an individual to help his brother and three daughters unlawfully enter the United States in 2015 and 2016 respectively--years after he was initially served with a notice to appear. Because he admitted to helping his family enter the United States without permission, the Immigration Judge determined Petitioner had engaged in alien smuggling and was not a person of good moral character as defined in the INA. See 8 U.S.C. §§ 1101(f)(3), 1182(a)(6)(E). As a result, the Immigration Judge concluded Petitioner was ineligible for cancellation of removal. See id. § 1229b(b)(1)(B). Petitioner appealed this decision to the Board of Immigration Appeals. He did not dispute engaging in prohibited conduct. He argued, instead, that events occurring after the service of a notice to appear could not be used to evaluate his good moral character because the stop-time rule, 8 U.S.C. § 1229b(d)(1), applied to the good moral character requirement, id. § 1229b(b)(1)(B). After Pereira , it is evident that the incomplete October 13, 2013 notice did not trigger the stop-time rule. For purposes of Mejia's petition, we assume the subsequent November 13, 2013 notice of hearing triggered the stop-time rule because it provided the minimum information-hearing time and place-needed to facilitate Petitioner's appearance at his removal proceeding. Because we conclude the stop-time rule does not apply to the good moral character period, we have no occasion to decide whether this two-step notice process satisfies § 1229(a). Petitioner's alien smuggling transgressions occurred in 2015 and 2016. Both incidents, therefore, followed the November 13, 2013 notice of hearing. If this notice triggers the stop-time rule, as we assume it does for purposes of evaluating Petitioner's contention, then under his theory the alien smuggling incidents would fall outside the good moral character ten-year window. Under this understanding, Petitioner remained a person of good moral character, eligible for cancellation of removal. B. Relying on its prior published decision, In re Ortega-Cabrera , 23 I. & N. Dec. 793, 796-97 (B.I.A. 2005), the Board rejected Petitioner's interpretation of the stop-time rule and denied his appeal. Ortega-Cabrera explained that, prior to IIRIRA's 1996 amendments to the INA, the Board had understood the physical presence and good moral character time periods to be identical and to "continu[e] to accrue through the time [the Board] decided an alien's appeal." Id. at 794. But the stop-time rule, explained Ortega-Cabrera , "altered the calculation" of the physical presence time period "by halting the accrual of such presence with the service of the [notice to appear]." Id. at 795. The Board concluded that the interaction between the stop-time rule and the good moral character requirement was ambiguous. See id. In light of the stop-time rule, Ortega-Cabrera said there were "three possible interpretations" of the good moral character requirement's time period. Id. First, the Board could continue to treat the physical presence and good moral character time period as identical, applying the stop-time rule to make both requirements "bounded at the end" by the service of a notice to appear. Id. Second, the periods could be identical but end instead on "the date that the application for cancellation of removal is first filed with the court." Id. And third, the two periods could diverge. Under this final reading, the good moral character period would be the ten years prior to the Board's final administrative decision-in other words, the good moral character period would be read "consistent with [the Board's] long-established practice" of allowing the good moral character time period to accrue until a final administrative decision. Id . After acknowledging that each interpretation presented problems, Ortega-Cabrera adopted the final option, concluding it most aligned with congressional intent. The first interpretation--applying the stop-time rule to the good moral character requirement--would undermine the INA's definition of good moral character, see 8 U.S.C. § 1101(f), because this reading would allow "an alien who engages in a disqualifying act," such as alien smuggling or giving false testimony at his immigration hearing, to remain eligible for cancellation of removal if the act occurred after the service of a notice to appear. See Ortega-Cabrera , 23 I. & N. Dec. at 797. The second option--although appearing consistent with the statute's text--"is thrown into considerable doubt" when read with the stop-time rule because that rule had made the phrase "immediately preceding the date of the application" inapplicable in determining the physical presence requirement. Id. at 795. The final option, in contrast, did not undermine the INA's definition of good moral character, nor did it alter the Board's "well-established practice of treating the application as a continuing one for the purposes of assessing an alien's good moral character." Id. at 797. Finding "no indication that Congress, in creating the 'stop-time' rule, intended to alter th[is] well-established practice," id. , Ortega-Cabrera adopted this final interpretation. It held that "an application for cancellation of removal remains a continuing one for purposes of evaluating an alien's moral character, and ... the 10-year period during which good moral character must be established ends with the entry of a final administrative decision." Id. at 798. Petitioner sought review of the Board's decision before this Court. III. The Board had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have jurisdiction under 8 U.S.C. § 1252(a). Although the INA strips us of jurisdiction over "any judgment regarding the granting of relief under section ... 1229b [ (cancellation of removal) ]," 8 U.S.C. § 1252(a)(2)(B)(i), "we have interpreted this provision to apply only with respect to discretionary aspects of the denial of cancellation of removal." Singh v. Att'y Gen. , 807 F.3d 547, 549 n.3 (3d Cir. 2015) (citing Mendez-Moranchel v. Ashcroft , 338 F.3d 176, 178 (3d Cir. 2003) ). Whether the stop-time rule applies to the good moral character requirement is not a "discretionary aspect" of a cancellation of removal application. Rather, it is a question of law which is exempt from § 1252(a)(2)(B)(i) 's jurisdiction limitation. See 8 U.S.C. § 1252(a)(2)(D) ("Nothing in subparagraph (B) or (C), or in any other provision of this chapter ... which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section."). IV. As we set forth below, the good moral character provision timeframe is ambiguous because its text is susceptible to two reasonable interpretations. The legal question here therefore "implicat[es] an agency's construction of the statute which it administers," so we "appl[y] the principles of deference described in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)." I.N.S. v. Aguirre-Aguirre , 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (quotation marks omitted). "Under Chevron , we take a two-step approach, first deciding whether the statutory provision interpreted by the [Board] is ambiguous and then, if it is, giving deference to the [Board]'s reasonable interpretation of the INA." Mondragon-Gonzalez v. Att'y Gen. , 884 F.3d 155, 158 (3d Cir. 2018) (citation omitted). IIRIRA's 1996 amendments to the INA--in particular, the stop-time rule--rendered the applicable timing of the good moral character provision ambiguous. And we defer to the Board's reasonable interpretation of the statute. A. As we have noted, the good moral character time period, 8 U.S.C. § 1229b(b)(1)(B), is ambiguous because its text is susceptible to two reasonable interpretations. Read in isolation, the question presented here initially appears straightforward. The statute provides that an alien is eligible for cancellation of removal if, inter alia , he "has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application" and "has been a person of good moral character during such period ." 8 U.S.C. § 1229b(b) (emphasis added). How does one calculate the time period for measuring good moral character? Petitioner argues this period is the same as the physical presence requirement, i.e. , the ten-year period "immediately preceding the date of such application," because the phrase "during such period" refers directly to the antecedent language. Indeed, prior to the 1996 amendments, the Board read an earlier, similar version of the statute as treating the two periods as identical. It interpreted "such application" to be "a continuing one," allowing the time periods to accrue until the Board's final administrative decision on an application for cancellation of removal. Ortega-Cabrera , 23 I. & N. Dec. at 794 ; see supra note 10. But we cannot read the statute in isolation. Instead, we must "bear[ ] in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." King v. Burwell , --- U.S. ----, 135 S. Ct. 2480, 2492, 192 L.Ed.2d 483 (2015) (quotation marks omitted); see also F.D.A. v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ("In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning-or ambiguity-of certain words or phrases may only become evident when placed in context."). When read in context with the stop-time rule, § 1229b(b)(1)(B) 's language is susceptible to two different interpretations. See Rodriguez-Avalos v. Holder , 788 F.3d 444, 453 (5th Cir. 2015) ("[W]e agree with the [the Board] and the Seventh Circuit that the 'interplay of the statutory language at issue here is ambiguous and subject to multiple possible interpretations."); Duron-Ortiz v. Holder , 698 F.3d 523, 527 (7th Cir. 2012) ("The ambiguity arises when we read the statute in conjunction with the stop-time provision of § 1229b(d)(1)."); cf. Moscoso-Castellanos v. Lynch , 803 F.3d 1079, 1083 (9th Cir. 2015) ("Because the statute is susceptible to several interpretations, we hold, at Chevron step one, that the statute is ambiguous."). 1. Under the interpretation advanced by Petitioner, the stop-time rule applies to both the physical presence and the good moral character time periods--closing both windows when a notice to appear is served. Recall that the stop-time rule provides that "any period" of "continuous physical presence ... shall be deemed to end when the alien is served a notice to appear." 8 U.S.C. § 1229b(d)(1). The good moral character requirement refers directly to the "period" of physical presence. See 8 U.S.C. § 1229b(b) (requiring that the alien "has been a person of good moral character during such period"). By tethering its timeframe to the continuous physical presence period, the good moral character requirement incorporates the stop-time rule's limitation. Read so, the good moral character and physical presence time period would be identical, each terminating with the service of a notice to appear that meets the requirements of § 1229(a)(1). 2. But this is not the only reasonable interpretation. Alternatively, IIRIRA's 1996 amendments to the INA could be read as having no effect on the good moral character time period. Indeed, the stop-time rule's language does not mention good moral character. IIRIRA created the stop-time rule in a separate subsection, titled "Special rules relating to continuous residence or physical presence." 8 U.S.C. § 1229b(d). And the rule only provides that an alien's "continuous residence or continuous physical presence ... shall be deemed to end when the alien is served a notice to appear." Id. § 1229b(d)(1). Nothing in the stop-time rule's text indicates it should apply beyond the continuous physical presence requirement to circumscribe the good moral character time period. The Dissent does not consider this construction, as it focuses exclusively on the language of § 1229b(b)(1)(A) and (B). But the plain language of § 1229b(d)(1) casts doubt on whether the Dissent's interpretation is the only reasonable one. Under this second interpretation, the good moral character requirement would be the "10 years immediately preceding the date of such application." 8 U.S.C. § 1229b(b)(1)(A). In keeping with the prior understanding of the phrase "such application," this period would run through the Board's final administrative decision on the alien's cancellation of removal application. Because § 1229b(b)(1)(B) 's text--when read in context with the stop-time rule-- is susceptible to two reasonable interpretations, it is ambiguous at step one of Chevron . B. Under Chevron 's second step, we "may not substitute [our] own construction of a statutory provision for a reasonable interpretation made by the" Board. Chevron , 467 U.S. at 844, 104 S.Ct. 2778. When reviewing the Board's interpretation, "we do not ask whether it is the best possible interpretation of Congress's ambiguous language. Instead, we extend considerable deference to the agency and inquire only whether it made 'a reasonable policy choice' in reaching its interpretation." Am. Farm Bureau Fed'n v. E.P.A. , 792 F.3d 281, 295 (3d Cir. 2015) (quoting Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs. , 545 U.S. 967, 986, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) ). Because the Board's interpretation is both a reasonable reading of the text and a reasonable policy choice, we join our sister circuits in concluding that its decision in Ortega-Cabrera is entitled to Chevron deference. See Rodriguez-Avalos v. Holder , 788 F.3d 444, 455 (5th Cir. 2015) ; Duron-Ortiz , 698 F.3d at 528. First , the Board's interpretation--declining to apply the stop-time rule to the good moral character time period and concluding that the period accrues through a final administrative decision--is a reasonable understanding of the statute's text. At a minimum, it embodies "a permissible construction of the statute." Aguirre-Aguirre , 526 U.S. at 424, 119 S.Ct. 1439 (citation and quotation marks omitted). As explained above, it is reasonable to interpret the stop-time rule to have no effect on the good moral character time period, as the stop-time rule's text never mentions good moral character. See 8 U.S.C. § 1229b(d). Second , the Board's interpretation is "a reasonable policy choice," Brand X , 545 U.S. at 986, 125 S.Ct. 2688, because it comports with congressional intent and avoids results inconsistent with the broader purpose of the INA. The Board's interpretation is consistent with congressional intent. Congress created the stop-time rule to eliminate the incentive to delay immigration proceedings in order to accrue physical presence time. See Rios-Pineda , 471 U.S. at 450, 105 S.Ct. 2098 (explaining the "substantial incentive" for aliens facing deportation "to prolong litigation" in order to "stall[ ] physical departure in the hope of satisfying" the seven-year requirement); see also H.R. Rep. 104-469, at 122 (1996) (explaining that aliens were exploiting suspension of deportation by seeking to "accrue time toward the seven year threshold even after they ha[d] been placed in deportation proceedings"). There was not, however, a similar incentive related to accruing good moral character time. See Ortega-Cabrera , 23 I. & N. Dec. at 797 (explaining there was "no indication that Congress, in creating the 'stop-time' rule, intended to alter" the Board's "well-established practice" of treating the good moral character time period as accruing until its final administrative decision). And Petitioner identifies no evidence Congress sought to alter the good moral character time period. Finally, the Board's interpretation avoids results inconsistent with the broader purpose of the INA. Under Petitioner's interpretation, an alien could engage in a disqualifying act--like alien smuggling or testifying falsely at an immigration hearing-and yet remain eligible for cancellation of removal, so long as the act occurred after the service of a Pereira -compliant notice to appear. See Ortega-Cabrera , 23 I. & N. Dec. at 797. Good moral character, however, involves "one of the most essential considerations in deciding who is allowed to remain in the United States--an individual's character." Duron-Ortiz , 698 F.3d at 528. "It is only logical that the agency consider an applicant's most recent negative behavior when making such a decision, as the more recent an individual's behavior is, the more accurately it reflects his or her character." Id. This choice is wholly reasonable. V. The Board's interpretation of the good moral character time period is entitled to Chevron deference. Under that reasonable interpretation, the stop-time rule does not apply to the good moral character requirement. Rather, events occurring in the ten-year period prior to the final administrative decision on the alien's application for cancellation of removal are subject to the good moral character requirement. We will therefore deny the petition. While this case was pending, the Supreme Court issued a decision clarifying what is required of such a notice to appear. See Pereira v. Sessions , --- U.S. ----, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). Pereira has important consequences for the stop-time rule, which we discuss below. See infra Section I.B.2. IIRIRA also prohibits the Attorney General from cancelling the removal of more than 4,000 aliens in a single fiscal year. 8 U.S.C. § 1229b(e)(1).

1084159-9289

PECK, Circuit Judge. This is an appeal from an order of the district court dismissing Leona Hunt’s request for review of the Secretary’s denial of disability benefits. The district court concluded that there was no abuse of discretion by the Secretary in denying appellant a hearing on her application and in refusing to reopen her application. Appellant filed four separate applications for disability insurance benefits. The first two applications were denied initially and upon reconsideration and appellant was advised in each denial notice that she could request review of the determination by a hearing examiner within six months. She made no request for review of either denial. The reconsideration denial notice for the second application, issued February 9, 1968, stated that appellant last met the special earnings requirement for disability purposes on September 30, 1967. On December 29, 1969, appellant filed a third application which was also denied initially and upon reconsideration. Appellant’s request for a hearing was denied by the hearing examiner on the ground that the issue of disability had been resolved against her and had become final after denial of appellant’s second application. The hearing examiner’s dismissal was affirmed by the Appeals Council. On March 12, 1971, appellant filed a civil action seeking review of the Secretary’s decision regarding her third application. The district court held it had no jurisdiction pursuant to 42 U.S.C. § 405(g) to review the Secretary’s decision. On August 15, 1972, appellant filed a fourth application for disability benefits, which application was denied initially and upon reconsideration. After consideration of allegedly “new and material” evidence, the administrative law judge, on November 2, 1973, dismissed appellant’s request for a hearing finding insufficient evidence to reopen and revise the earlier determinations. The Appeals Council affirmed this dismissal. Appellant then filed this civil action. I. JURISDICTION The threshold question which must be dealt with in this ease is whether the district court had jurisdiction to review the Secretary’s decision not to reopen a prior application. The Social Security Act does not, by its terms, provide for judicial review of the Secretary’s decision. 42 U.S.C. § 405(g) provides for judicial review only of final decisions made after a hearing. Sanders v. Weinberger, 522 F.2d 1167 (7th Cir. 1975); Ortego v. Weinberger, 516 F.2d 1005 (5th Cir. 1975); Davis v. Richardson, 460 F.2d 772 (3rd Cir. 1972); Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966). And in a recent case, the Supreme Court held that the specific statutory language of 42 U.S.C. § 405(h) precludes jurisdiction through 28 U.S.C. § 1331. Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Thus jurisdiction must be premised in this case, if at all, upon the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. The circuits are divided on the question of whether Section 10 of the APA constitutes an independent grant of jurisdiction. Compare Ruiz-Olan v. Secretary of H.E.W., 511 F.2d 1056 (1st Cir. 1975); Davis v. Richardson, supra; Sanders v. Weinberger, supra; Ortego v. Weinberger, supra; with Bramblett v. Desobry, 490 F.2d 405 (6th Cir. 1975), cert. denied, 419 U.S. 872, 95 S.Ct. 133, 42 L.Ed.2d 11 (1974); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967). Even within some circuits the decisions conflict. In the second circuit, Cappadora v. Celebrezze, supra, assumes there is jurisdiction based on the APA, while Ove Gustavsson Contracting Co. v. Floete, 278 F.2d 912 (2d Cir. 1960), cert. denied, 364 U.S. 894, 81 S.Ct. 225, 5 L.Ed.2d 188 (1960) holds that Section 10 of the APA does not independently confer federal jurisdiction, and Mills v. Richardson, 464 F.2d 995, 1001 n.9 (2d Cir. 1972) states that the question has not yet been decided. Likewise in this circuit, our conclusions have not been entirely consistent. In 1974 this court decided Bramblett v. Desobry, supra, which in a non-Social Security context held that the “Administrative Procedure Act does not confer jurisdiction upon the courts.” However, in Maddox v. Richardson, 464 F.2d 617 (6th Cir. 1972), on facts very similar to the instant case, we assumed jurisdiction based upon the APA to review a decision of the Secretary not to reopen a prior denial. Maddox was subsequently cited and followed in Woods v. Richardson, 465 F.2d 739 (6th Cir. 1972) and Eastman v. Richardson, 475 F.2d 472 (6th Cir. 1973). The Supreme Court has not expressly dealt with this problem, although arguably it has assumed jurisdiction based upon the APA alone without discussion of the jurisdictional dilemma. See Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). However, we regard these cases as, at best, inconclusive. We choose to follow those circuits and the precedent within our own circuit which hold that the APA does contain an independent grant of subject matter jurisdiction for purposes of reviewing the Secretary’s refusal to reopen a prior application. We decline to follow Bramblett, since its rationale seems inapplicable in the context of the instant case. Having adopted the view that the APA is an independent jurisdictional base, we must deal with the issue of whether the APA exempts this particular administrative decision from judicial review. Section 10 of the APA provides: “(a) This chapter applies, . . .. except to the extent that — (1) statutes preclude judicial review, or (2) agency action is committed to agency discretion by law.” The question arises whether Section 405(h) of the Social Security Act fits within this limitation on judicial review, by providing in part that “the findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided.” Of those circuits which have used the APA as a jurisdictional basis on which to review the Secretary’s refusals to reopen, only one, the Ninth Circuit, has held that Section 405(h) acts to commit the Secretary’s decision irretrievably to his discretion. Stuckey v. Weinberger, 488 F.2d 904 (9th Cir. 1973). Six other circuits including this court in Maddox v. Richardson, supra, have found no obstacle in the Section 10 exceptions, the general view being that expressed in Cappadora that the finality provision of Section 405(h) only applies to findings of fact and decisions of the Secretary made after a hearing on the merits. Allowing judicial review under these circumstances seems consistent with the Supreme Court’s holding that there is virtually a presumption of judicial review of administrative action, unless the statutory scheme clearly manifests a contrary purpose. Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). As the court in Cappadora stated: “we do not believe that Congress would have wished to close the doors of the court to a plaintiff whose claim for social security benefits was denied because of an unreasonable or inappropriate agency rule on reopening or because of a truly arbitrary administrative decision . . . . Absent any evidence to the contrary, Congress may rather be presumed to have intended that the courts should fulfill their traditional role of defining and maintaining the proper bounds of administrative discretion and safeguarding the rights of the individual.” Cappadora v. Celebrezze, supra, 356 F.2d at 6. We thus find that the APA constitutes an independent grant of jurisdiction to review the Secretary’s refusals to reopen prior applications for Social Security benefits and that Section 405(h) does not preclude review or evidence Congressional intent to irretrievably commit the Secretary’s decision to his discretion. II. MERITS This court has recognized that the doctrine of res judicata may validly be applied by the Secretary, pursuant to 20 C.F.R. 404.937, when a prior denial of an application raising the same issues has become final because of the failure of the applicant to make a timely request for a hearing. Maddox v. Richardson, supra at 619; Gaston v. Richardson, 451 F.2d 461, 465 (6th Cir. 1971). The Secretary’s regulations provide for a relaxation of the res judicata doctrine under certain circumstances. A claimant may have his case reopened within one year from the date of the notice of the initial determination for the presentation of new evidence or within four years from that date if the claimant can show “good cause” for such reopening. 20 C.F.R. 404.957(a) and (b). After four years a prior decision of the Secretary may be reopened “only for the purpose of correcting . . . error on the face of the evidence on which such . decision was based.” 20 C.F.R. 404.-957(c)(8). Under the APA, the Secretary’s decision whether to reopen a prior determination may be reviewed only for an abuse of discretion. Ruiz-Olan v. Secretary of H.E.W., supra at 1058.

11230998-20506

LUCERO, Circuit Judge. We again explore the question of when “on-call” time becomes sufficiently onerous to render it compensable under the Fair Labor Standards Act (“FLSA”). Surveying our precedents and applying them to the facts of this case, we conclude that plaintiffs’ on-call duties requiring them to continually monitor automated alarms by pager and computer were compensable un der the FLSA. In so holding, we reject the argument that on-call monitoring time is not compensable unless contemporaneously reported to the employer as overtime. Further, we uphold the district court’s determination that the employer’s FLSA violation was not willful, and affirm both the award of prejudgment interest and the denial of liquidated damages. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. I Plaintiffs are Electronic Technicians in Oklahoma Gas & Electric’s (“OG&E”) Facility Operations Department. Plaintiffs Pabst and Gilley were Electronic Technician I’s (“Tech Is”) and plaintiff Barton was an Electronic Technician II (“Tech 2”). The three plaintiffs, along with two other employees, monitored automated heat, fire, and security systems in several OG&E buildings. Prior to an August 1994 reduction in force, these duties required twelve on-site employees working three eight-hour shifts. Plaintiffs were on call to monitor OG&E building alarms weekdays from 4:30 p.m. to 7:30 a.m. and twenty-four hours a day on weekends. During these hours, alarms went to computers at Pabst’s and Gilley’s homes, as well as to pagers for all plaintiffs. After October 1994, Barton began to receive alarms at home via lap-top computer. Plaintiffs were required to respond to the alarms initially within ten minutes, then, after October 1996, within fifteen minutes. Failure to respond within the time limit was grounds for discipline. Each plaintiff was assigned, and required always to carry, an alpha-numeric pager. These pagers were only 70% reliable. The short response time, coupled with unreliable pagers, forced plaintiffs to remain at or near their homes while on call. The district court found that plaintiffs received an average of three to five alarms per night, not including pages for security issues. Although not all alarms required plaintiffs to report to the office — it appears many could be fixed by remote computer— the district court found it took an average of forty-five minutes to respond to each alarm. Neither party disputes those findings on appeal. At trial, the parties did dispute whether a rotational on-call schedule was ever proposed or implemented. Acknowledging the dispute, the district court found that “[c]ontrary to OG&E’s contention, an examination of the overtime hours actually billed by plaintiffs does not demonstrate that a rotational schedule was ever in effect; rather, the records reveal significant overlap among the technicians, which indicates to the court that no rotational schedule was ever implemented prior to June 1997.” (I Appellant’s App. at 57.) The district court also found a rotational schedule would not have been feasible because of the frequency of alarms and plaintiffs’ differing areas of expertise. According to plaintiffs, their supervisor instructed them to report only on-call time spent responding to an alarm. OG&E paid plaintiffs for at least one hour for each alarm to which they responded, and two hours if they had to return to OG&E facilities. Plaintiffs apparently reported some, but not all, of the alarms they answered, but did not claim as overtime the remainder of their time spent on call. Considerable testimony was presented regarding the extent to which monitoring interfered with plaintiffs’ personal activities. Most significantly, an average of three to five alarms per night, each requiring on average forty-five minutes of work, severely disrupted plaintiffs’ sleep habits; indeed, they testified to rarely experiencing more than five hours of uninterrupted sleep per night. In addition, even during waking hours, plaintiffs were unable to pursue many personal activities while on call because of the need to come into their homes to check their computers every fifteen minutes. The district court found plaintiffs’ on-call time compensable under the FLSA and awarded them compensation for fifteen hours per weekday and twenty-four hours per Saturday and Sunday, less any hours already paid for responding to alarms. Because it found OG&E’s violation was not willful, however, the district court limited recovery to the two-year limitations period. It also refused to award liquidated damages, finding that the FLSA violation was reasonable and in good faith. OG&E appeals the district court’s rulings on liability, damages, and prejudgment interest, while plaintiffs cross-appeal the district court’s ruling denying liquidated damages and its finding of no willful violation. II “We review the district court’s findings of fact under the clearly erroneous standard; conclusions of law we review de novo.” Armitage v. City of Emporia, 982 F.2d 430, 481 (10th Cir.1992) (citations omitted). With certain exceptions not relevant here, the FLSA requires an employer to pay a minimum wage for each hour it “employ[s]” an employee, as well as an overtime premium for hours in excess of forty per week. See 29 U.S.C. §§ 206, 207, 213. “Employ” is defined as including “to suffer or permit to work.” Id. § 203(g). The pertinent question, and one with which courts have struggled, is whether on-call time is “work” for purposes of the statute. The FLSA does not explicitly address the issue of on-call time. Courts, however, have developed a jurisprudence of on-call time, based on the Supreme Court cases of Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944), and Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Those cases determine the relevant inquiry to be whether an employee is “engaged to wait” or “wait[ing] to be engaged,” Skidmore, 323 U.S. at 137, 65 S.Ct. 161, or, alternatively, whether on-call time is spent predominantly for the benefit of the employer or the employee, see Armour, 323 U.S. at 133, 65 S.Ct. 165. Necessarily, the inquiry is highly individualized and fact-based, see Skidmore, 323 U.S. at 136-37, 65 S.Ct. 161; Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 654 (10th Cir.1988), and “requires consideration of the agreement between the parties, the nature and extent of the restrictions, the relationship between the services rendered and the on-call time, and all surrounding circumstances,” Boehm v. Kansas City Power & Light Co., 868 F.2d 1182, 1185 (10th Cir.1989) (citing Skidmore, 323 U.S. at 137, 65 S.Ct. 161): We also focus on the degree to which the burden on the employee interferes with his or her personal pursuits. See Armitage, 982 F.2d at 432. Several facts are relevant in assessing that burden: number of calls, required response time, and ability to engage in personal pursuits while on call. See id.; Renfro v. City of Emporia, 948 F.2d 1529, 1537-38 (10th Cir.1991). A OG&E argues that it did not know plaintiffs were working the entire time they were on call and thus did not “suffer or permit” them to work. 29 U.S.C. § 203(g). Its theory goes as follows: Plaintiffs were responsible for reporting their own overtime; because they reported only time spent responding to calls (and apparently not even all of that), rather than all of their on-call time, OG&E lacked knowledge that they were working and therefore did not suffer or permit them to work. This argument misinterprets the nature of the on-call time inquiry and borders on the disingenuous. As a factual matter, OG&E’s purported lack of actual knowledge is dubious. Plaintiffs cite record testimony detailing a reprimand Pabst received for attempting to report the entire time spent monitoring systems as overtime. Although OG&E attempts to discount this testimony because the incident occurred after the cessation of the particular on-call monitoring system at issue here, the testimony nevertheless lends support to plaintiffs’ assumption that it would have been futile — or even harmful — for plaintiffs if they had attempted to report all of their on-call time as overtime. More significantly, OG&E’s policy informed plaintiffs they would be compensated only for on-call time spent responding to an alarm. The only logical inference was that they would not be compensated for time spent monitoring their computers and pagers, unless they took some specific action responding to an alarm. To claim, then, that OG&E did not know plaintiffs were working because they did not report every hour of their evenings and weekends as overtime is misleading. While OG&E arguably may have lacked knowledge of the legal proposition that the FLSA required compensating plaintiffs for their on-call time under the system at issue, OG&E certainly knew that plaintiffs were performing the duties they had been assigned. OG&E relies heavily on Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir.1986) for its knowledge theory. In Davis, 792 F.2d at 1275, the court found that “Food Lion has an established policy which prohibits employees from working unrecorded, so-called ‘off-the-clock’, hours.” Davis argued that Food Lion’s “Effective Scheduling” system required him to work such off-the-clock hours in order to perform his required duties and avoid reprimand. See id. at 1275-76. The Fourth Circuit held the FLSA “required Davis to prove Food Lion’s actual or constructive knowledge of his overtime work,” id. at 1276, and found no clear error in the district court’s “factual finding that Food -Lion has no actual or constructive knowledge of Davis’s off-the-clock work,” id. at 1277. Davis is not applicable to the case before us. First, there is no evidence of anything like an explicit prohibition on plaintiffs’ performing after-hours monitoring duties; on the contrary, such was the very essence of their responsibilities. Moreover, Davis was not, as plaintiffs correctly note, an on-call time case. In the on-call context, an employer who creates an on-call system obviously has constructive, if not actual, knowledge of employees’ on-call duties. An employer must evaluate whether those duties are compensable under the FLSA, and if the employer concludes they are not, the employees do not bear the burden of submitting overtime requests for hours that fall outside the definition of what the employer classifies as compensable. Plaintiffs reported (apparently with some omissions) the hours to which they were entitled under OG&E’s policy. That they did not report the entirety of their remaining on-call hours does not preclude the obvious conclusion that OG&E had knowledge of their on-call status. OG&E’s contention that the existence of a rotating on-call schedule prevented it from gaining actual or constructive knowledge of the full extent of plaintiffs’ on-call hours implicates a disputed issue of fact. We review the district court’s resolution of that dispute for clear error. See Armitage, 982 F.2d at 431. If plaintiffs were only on call one week out of three, there would certainly be a problem with each claiming on-call time for every week. However, as the district court noted, the alleged existence of a rotational schedule is contradicted by the significant overlap in the overtime hours reported by plaintiffs. Indeed, in its motion for reconsideration, OG&E conceded that even under its preferred “rotational schedule” analysis—under which one plaintiff was on call for a week running from 7:30 a.m Friday to 7:30 a.m. Friday, rather than calendar weeks—there were weeks when both Pabst and Barton recorded time. Given that concession the district court’s resolution of the disputed factual question of the existence of a rotational schedule did not amount to clear error. B Whether a particular set of facts constitutes compensable “work” under the FLSA is a legal question we review de novo. See Berry v. County of Sonoma, 30 F.3d 1174, 1180 (9th Cir.1994). In Renfro, 948 F.2d at 1536-38, we granted FLSA compensation to firefighters for their on-call time. Renfro’s facts include the following: the firefighter must be able to report to the stationhouse within twenty minutes of being paged or be subject to discipline; that the on-call periods are 24-hours in length; and primarily that the calls are frequent—a firefighter may receive as many as 13 calls during an on-call period, with a stated average frequency of 3-5 calls per on-call period. Id. at 1535 (quoting Renfro v. City of Emporia, 729 F.Supp. 747, 751 (D.Kan.1990)). OG&E emphasizes that all but one published Tenth Circuit case addressing on-call time have found it non-compensable. See, e.g., Andrews v. Town of Skiatook, 123 F.3d 1327, 1328-32 (10th Cir.1997); Gilligan v. City of Emporia, 986 F.2d 410, 413 (10th Cir.1993); Armitage, 982 F.2d at 432-33; Boehm, 868 F.2d at 1185; Norton, 839 F.2d at 654. But see Renfro, 948 F.2d at 1538. Counting published cases, however, is meaningless in resolving a fact-intensive question such as the compensability of on-call time. Rather, the proper question is which case is most analogous. Comparing Renfro with the cases cited by appellant reveals that a critical distinction in the highly fact-specific inquiry is the frequency of calls. See Gilligan, 986 F.2d at 412 (“[W]e noted in Renfro that the frequency of call backs was the factor which the Renfro district court cited as distinguishing that case from others which had previously held that on-call time was not compensable.”); cf. Armitage, 982 F.2d at 432 (holding on-call time non-compensable, unlike in Renfro, because the plaintiffs were “called in on average less than two times per week”). As in Renfro, 948 F.2d at 1537, plaintiffs experienced three to five calls per on-call period. Additionally, although plaintiffs did not always actually report to OG&E’s plant, they were required to take some action by computer within fifteen minutes, another burdensome element present in Renfro, id. In sum, this case is far more analogous to Renfro than to the more numerous precedents cited by OG&E. Although OG&E complains bitterly against having to compensate plaintiffs for working twenty-four hours a day, seven days a week, the cost to an employer of an “always on call” arrangement does not mean that such a system is not cognizable under the FLSA, so long as the on-call time qualifies as work under the relevant FLSA precedents. While one circuit has held that always being on call, while extremely burdensome, does not in and of itself make the on-call time compensable for FLSA purposes, see Bright v. Houston Northwest Med. Ctr. Survivor, Inc., 934 F.2d 671, 678-79 (5th Cir.1991) (en banc), another circuit found that requiring employees to monitor and respond all day, every day is a factor weighing in favor of compensability, see Cross v. Arkansas Forestry Comm’n, 938 F.2d 912, 916-17 (8th Cir.1991) (holding that on-call time is com-pensable under the FLSA because employees were required to continuously monitor transmissions and respond within thirty minutes, and because they were subject to on-call status twenty-four hours per day for every day of a work period). We agree with both Bright and Cross: Although always being on call is not dispositive, such an added burden is relevant in assessing the extent to which all-the-time on-call duty deprives employees of the ability to engage in personal activities. The only significant difference between the burden on the plaintiffs in Renfro and the burden on Pabst, Gilley, and Barton is that plaintiffs here often did not have to report to the employer’s workplace in order to respond to calls. This lighter burden, however, is offset by the fact that plaintiffs, unlike the firefighters in Renfro, were not on call for “six shifts of twenty-four hours each in a 19-day cycle,” Renfro, 948 F.2d at 1531, but rather during all of their off-premises time. The frequency of calls here actually is greater than in Ren-fro because plaintiffs’ calls during weekdays occurred during a fifteen hour, rather than a twenty-four hour, period. Additionally, in Renfro, we found on-call time com-pensable despite the fact that the firefighters “had participated in sports activities, socialized with friends and relatives, attended business meetings, gone shopping, gone out to eat, babysitted, and performed maintenance or other activities around their home.” Id. at 1532 (citation and internal quotation omitted). Renfro controls the application of the FLSA to the facts before us, and leads us to hold that the district court was correct in finding plaintiffs’ on-call time compensable. III We next consider OG&E’s claims that the award of overtime compensation should be reduced by subtracting out several time periods. We reject, as a matter of law, OG&E’s argument that time spent in personal pursuits should be subtracted. The relevant inquiry in on-call cases is not whether plaintiffs’ duties prevented them from engaging in any and all personal activities during on-call time; rather it is “whether ‘the time is spent predominantly for the employer’s benefit or the employee’s.’ ” Boehm, 868 F.2d at 1185 (quoting Armour, 323 U.S. at 133, 65 S.Ct. 165). This is a yes-no inquiry — whose benefit predominated? OG&E cites no authority for the proposition that a court must determine whose benefit predominated during each on-call hour. Cf. Renfro, 948 F.2d at 1532, 1538 (holding firefighters’ on-call time compensable even though they engaged in some personal pursuits during that time). OG&E’s other arguments for reductions in the damages award, which pertain to individual plaintiffs, are factual issues subject to clear error review. See Armitage, 982 F.2d at 431. OG&E contends Gilley was not responsible for after-hours alarms from October 1996 through May 1997. The record reflects that from October 1996 to June 1997, Pabst and Barton were responsible for answering alarms, but would call Gilley if they were unable to resolve the problem. Although plaintiffs’ supervisor, Randy Valdez, testified that Gilley “wasn’t on call or he was taken out of the rotation, so after working hours I didn’t expect him to do anything,” (V Appellant’s App., Tab 30, at 554), Gilley testified that he “was never removed out of the system,” (id. at 328), and that he continued to be confined to his home after hours and to regularly respond to calls to assist Barton or Pabst. We find no clear error in the district court’s decision to credit Gilley’s rather than Valdez’s account of his duties during the period he was on backup on-call duty. OG&E argues that Barton should not have been awarded overtime compensation from October 1994 through October 1, 1996 because during that time he was monitoring alarms only by pager and not by computer. OG&E primarily focuses on the comparatively small amount of remote overtime Barton charged during that period, as compared to Gilley and Pabst. However, we are persuaded the district court did not clearly err in determining that Barton, like Gilley and Pabst, received between three and five pages per night during this period, despite the comparatively smaller amount of overtime Barton recorded. We note that Barton testified that he did not report overtime for every alarm he received, but only those in response to which he either went to an OG&E location or “dialed into” OG&E and attempted a repair. (Id. at 472.) The district court’s finding is supported by Barton’s differing responsibilities as a Tech 2, which involved “assist[ing] each of the tech Is.” (Id. at 436.) Even though Barton initially did not have a computer at home, he testified that he was required to keep his pager on at all times and that calls prevented him from getting more than five hours of uninterrupted sleep and engaging in personal activities. While the record does not make especially clear the precise contours oLBarton’s duties during the relevant period, OG&E does not point to anything in the record that renders clearly erroneous the district court’s finding that he received a similar number of calls to the other plaintiffs and experienced similar interference with sleep and other personal activities. Finally, as discussed above, we find no clear error in the district court’s factual finding that OG&E’s alleged rotational schedule was never put into effect. We therefore decline to overturn the district court’s award of overtime compensation. IV

4264923-5522

WHITTAKER, District Judge. By our opinion in this cause, of November 9, 1955, Rosenfeld v. Continental Building Operating Company, D.C., 135 F.Supp. 465, we held that the original plaintiff, Rosenfeld, did not have, and had never had, any legal title to, or beneficial interest in this cause of action and was not the real party in interest, but we did not sustain defendant’s motion for a summary judgment — by which the question was raised — , but, instead, we treated and sustained the motion as one to dismiss, but granted leave to the insurer, St. Paul Fire & Marine Insurance Company, to come into the case as plaintiff within 30 days and to attempt to prosecute it in its own name. Pursuant to that order, St. Paul Fire & Marine Insurance Company entered its appearance in this cause, as plaintiff, on November 26,1955. Defendant thereafter filed its motion herein to dismiss, based, principally, upon the ground that the substitution of St. Paul Fire & Marine Insurance Company, as plaintiff, on November 26, 1955, was after the Missouri three-year and five-year statutes of limitations, Sections 516.120 and 516.130 RSMo 1949, V.A.M.S., had run, and that the substitution amounted, in legal effect, to the institution of a new action upon the cause of action, and that it was barred by the limitations of the Missouri statutes mentioned. Extensive briefs upon the question have been filed by counsel for the parties, all of which I have carefully considered. It is true, and conceded by counsel for the substituted plaintiff, that if its substitution as plaintiff on November 26, 1955, does amount, in legal effect, to the institution of a new suit, and that if, in legal effect, it does not relate back to the time of the filing of the original suit herein by Rosenfeld, then this action is barred by, at least, the Missouri five-year statute of limitations mentioned, and the motion to dismiss should be sustained, otherwise it should be overruled. There can be no doubt, and it is not disputed, (1) that this cause of action accrued in Missouri, (2) that the Missouri statute of limitations is applicable. It is clear from an unbroken line of decisions in Missouri that if a suit is brought by one who has no legal right to maintain it, yet, who has a beneficial interest in the subject matter of the action, the substitution of a proper plaintiff will relate back to the time of filing of the original action by the one without authority to prosecute it, and the intervening running of the statute of limitations will not be held to bar the action by the substituted plaintiff, but, on the other hand, if the original action was brought by an improper plaintiff who had no legal or beneficial interest in the subject matter of the action and later — but after the statute of limitations has run — a proper party plaintiff is substituted, the substitution will be treated as a new action, and the action will be held to be barred by the Missouri statute 'of limitations. Pyle v. University City, Mo.App., 279 S.W. 217; Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618; Tiffin v. Leabo, 52 Mo. 49; McLendon v. Kissick, 363 Mo. 264, 250 S.W.2d 489; Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 111 S.W.2d 1; Webster v. Joplin Water Works Co., 352 Mo. 327, 177 S.W.2d 447; Brunn v. Katz Drug Co., 359 Mo. 334, 221 S.W.2d 717; Meservey v. Pratt-Thompson Construction Company, Mo.App., 291 S.W. 174, and Leimer v. Woods, 8 Cir., 196 F.2d 828. Here, as held in our former opinion referred to, the original plaintiff, Rosenfeld, did not have, at the time of the institution of this suit, nor since,', any legal or equitable title to, or beneficial, interest in, the subject matter of this-suit, and, therefore, the substitution of. St. Paul Fire & Marine Insurance Company, as plaintiff herein, on November-26, 1955, did not relate back to the time, of the institution of this action byRosenfeld, and, meanwhile, the Missouri five-year statute of limitations had run, and this action by the substituted plain-, tiff, St. Paul Fire & Marine Insurance-Company — treated, as it must be, as a new action, commenced by it on November 26, 1955 — -is barred by limitations,if the Federal courts are bound by the, terms of the state statute of limitation as construed by its highest court. But the substituted plaintiff points to Rule 15(c) of Federal Rules of Civil Procedure, 28 U.S.C.A., and says that it expressly provides that an “amended pleading”, arising out of the same transaction as set forth in the original pleading, “relates back to the date of the original pleading”, and that such is the effect of the substitution of the present plaintiff herein on November 26, 1955, and that, therefore, this action by the substituted, plaintiff — even though treated, to use Judge Lamm’s picturesque words, “as a fresh suit upon a new cause of action” — is not barred, regardless of the Missouri five-year statute of limitations, for it will not be applied by the Federal courts in these circumstances. In support of this position the substituted plaintiff cites three cases, by the Tenth Circuit. They are American Fidelity & Casualty Co. v. All-American Bus Lines, Inc., 10 Cir., 190 F.2d 234; Kansas Electric Power Co. v. Janis, 10 Cir., 194 F.2d 942, and Isaacks v. Jeffers, 10 Cir., 144 F.2d 26, which, it must be admitted, sustain his contention. He also cites Kincheloe v. Farmer, 7 Cir., 214 F.2d 604, which does not support him, for it holds that Federal courts are bound by the terms of state statutes of limitation.

4340031-21795

PER CURIAM: In this 42 U.S.C. § 1983 action, plaintiff-appellant Robert Eugene Easley, a Florida prisoner, pro se appeals the district court’s entry of summary judgment in favor of 15 defendant-appellee prison employees. Easley alleged that he received inadequate medical treatment and faced retaliation for filing grievances. On appeal, Easley argues the district court erred (1) by prematurely granting summary judgment in the defendants’ favor where further discovery beyond the deadline was needed and (2) by failing to grant summary judgment in Eas-ley’s favor. After careful review, we find no reversible error and affirm. I. BACKGROUND A. The Parties In 2011, this lawsuit began, and by January 2012, Easley pro se had filed an amended § 1983 civil rights complaint against 15 employees of the Dade Correctional Institution (“DCI”). The defendants may be divided into three categories: (1) DCI Healthcare Providers, (2) DCI Officers, and (3) DCI Officials. In the first category, Easley alleges deliberate indifference to his serious medical needs by Dr. Julio Poveda and Nurses Curtis Dwares, Suzanne Manifold, Wilene Laguerre, and Ron Ruel. In the second category, he alleges interference with his access to medical care by DCI Sergeants Michelle Vega, Linessa Reyes, Jose Otero, Krystal Holmes, and Jenean Lee, as well as DCI Officers Toi Levy, Deatra Johnson, Anthony Alexander, Joshua Pujol, and Taniko Byrd. In the third category, he alleges unlawful retaliation for his prior grievances by DCI Officials Warden Jerry Cummings, Assistant Warden Jabaria Williams, and Colonel Royce Marlow. B. Easley’s Medical Care from 2009-2011 Easley was a DCI inmate from September 2009 until December 2011. He is now at another prison. The events below relate only to his time at DCI. Upon arrival at DCI, Easley was medically evaluated and was diagnosed as suffering from diabetes, hypertension, and chronic back pain. Subsequently, he was diagnosed with anxiety, depression, and obesity. The DCI Healthcare Providers took a variety of steps to address Easley’s medical needs. These included: (1) providing Easley with a cane, a low bunk pass, and a pass to avoid prolonged standing; (2) placing Easley on a special 2800-calorie diet to address his diabetes and weight issues; (3) referring Easley to an outside orthotics specialist and then providing Easley -with special orthopedic shoes; (4) securing an evaluation with an outside orthopedic surgeon, who recommended a surgical remedy for his back pain, spinal fusion surgery, which Easley refused; (5) offering Easley the option of sleeping in the infirmary and advising that he regularly do stretching exercises; (6) ordering an MRI to aid in diagnosing Easley’s back problems; (7) ordering physical therapy; (8) prescribing and administering Ultram, a narcotic, as well as aspirin and ibuprofen for relief of Easley’s pain; and (9) prescribing and administering other medicines, including Lisinorpil (for high blood pressure), Glucophage (for diabetes), Zo-cor (for cholesterol), Flexeril (a muscle relaxer), and Diphenhydramine (Bena-dryl). Separately, the DCI mental health department prescribed Prozac and Elavil (or thé generic, amitriptyline), both for depression. C. Easley’s Claims Against the DCI Healthcare Providers Easley argues the steps taken by the DCI Healthcare Providers were insufficient, delayed, or terminated, rendering his medical care inadequate. Easley accurately notes that his special diet was twice terminated. The formal policy (of the Florida Department of Corrections) required the cessation of a special diet- where an inmate missed more than 10% of his meals. Easley had missed 33% of his special diet meals when that diet was first cancelled in March 2010. It was subsequently reinstated, and then again cancelled when Easley missed 71% of his special diet meals in October 2010. The special diet was not renewed and Eas-ley was given a disciplinary report for failure to comply. After being sent to an outside orthotics specialist, Easley received special orthopedic shoes in June 2010. Easley complains, however, that' he was not given a new pair of the same shoes on an annual basis. Defendants respond that no policy requires annual replacement of the specially ordered shoes, and that Easley was given replacement orthotic inserts in January 2011. Moreover, as with a number of Eas-ley’s other medical treatments, the authorization or denial of replacement shoes did not rest with the individual defendants. Rather, the defendants would file a request with Utilization Management, a division of Florida’s Department of Corrections based in Tallahassee and a non-party. In August 2011, defendant Dr. Poveda requested that Utilization Management approve Easley being seen again by an outside orthotics specialist. Easley does not dispute that Dr. Poveda made this request, but avers that defendant Nurse Dwares “refused to properly write referrals to get a renewal pair” of orthopedic shoes. Dwares avers that he was not “involved in [Easley] receiving or not receiving a new pair of shoes,” but that Dr. Poveda did in fact make the appropriate request to Utilization Management. The DCI Healthcare Providers referred Easley to an outside physician, Dr. Amar Rajadhyaksha. Dr. Rajadhyaksha, an orthopedic surgeon, saw Easley on June 16, 2010, and recommended corrective surgery to resolve Easley’s back pain. Easley refused surgery and requested other, more conservative treatment. After Easley saw Dr. Rajadhyaksha and refused surgery, the DCI Healthcare Providers ordered outside consultations for epidural injections to block the pain. Eas-ley met with Dr. Polanco on October 8, 2010, and with Dr. Escandor on December 22, 2010, both at Kendall Regional Medical Center (“Kendall”). In his sworn affidavit, Dr. Poveda stated that Easley received two epidural injections, one on October 8, 2010, and one on December 22, 2010. In his affidavit, Easley avers that the epidural injections never occurred during his time at DCI. And as Easley notes, the Kendall documents from these appointments show that Easley was seen but do not state whether epidural injections were actually administered on the alleged dates. Nevertheless, it is undisputed that Eas-ley’s back-pain condition received significant attention. Throughout his stay at DCI, Easley was prescribed the narcotic Ultram, to be given three times a day as needed. Affidavits from the DCI Healthcare Providers and accompanying medical records show that he was regularly evaluated and treated by the medical staff. Several of these evaluations resulted in referral to outside specialists. In April 2010, Easley was referred to an orthopedic surgeon. That appointment, where Dr. Rajadhyaksha recommended surgery to Easley, occurred in June 2010. Easley was separately evaluated by the DCI Healthcare Providers twice in July 2010. In September 2010, Easley was sent out for an MRI and his prescription for the narcotic Ultram was renewed. Easley was evaluated twice by the DCI Healthcare Providers again in October 2010, at least once in November 2010, and had follow-ups specifically addressing back pain management in December 2010 and February 2011. In March 2011, Easley was recommended for and began physical therapy. Easley was evaluated for his back pain twice in April 2011 and again in May 2011. The medical notes from the May 2011 appointment note that Easley “state[d] that the Ultram is working very well on his pain.” Medical records from May 2011 and June 2011 also show that Easley refused a referral for an outside pain management consult and again refused surgery. Both refusal forms acknowledge that Easley refused these treatments against the advice of the DCI Healthcare Providers. Easley also complains that the DCI, Healthcare Providers required him to wait eight hours between doses of Ultram, the narcotic pain reliever. Easley’s prescription allowed administration of Ultram three times a day, as needed. The DCI Healthcare Providers admit that they did not provide Easley with Ultram on demand and required him to wait eight hours between doses. The defendants aver that (1) Ultram is a narcotic that must be administered under direct observation and (2) standard medical practice treats a thrice-daily dose as being appropriate every eight hours, once in the morning, once in the afternoon, and once at night. Medical records show that, in late July 2011 and early August 2011, Easley on numerous occasions attempted to get his next dose of Ultram before the prescription would allow. Easley also consistently refused the DCI Healthcare Providers attempts to take vital signs to get an objective assessment of his pain level. In addition, Easley was also taking Prozac at the time. The DCI Healthcare Providers aver that because Prozac can potentially have life-threatening interactions with Ultram, close monitoring was especially warranted. Easley also makes a separate claim that he was unfairly forced to wait forty-five minutes in the medical unit after many of his Ultram doses. The DCI Healthcare Providers respond by explaining the common practice of “cheeking” in the prison environment. Cheeking is where inmates will attempt to store medication in their cheeks and later sell their medication. The DCI Healthcare Providers often require inmates to wait after receiving their medication to ensure the medication has dissolved. D. Easley’s Claims Against the DCI Officers Separately, Easley argues that the DCI Officers denied him access to medical care by not allowing him to go to the medical unit despite his medical pass. Easley’s primary claim is that the DCI Officers failed to honor his pass for “noon time” treatment. Easley’s medical pass, however, never prescribed dosage of Ultram at “noon time” and the DCI Officers offer at least two explanations for appropriately denying Easley’s request to go to the medical unit at noon. Either the compound was not opened up for “call outs,” which would allow inmates to go to work, chapel, medical, etc., or an inmate would not be allowed to go to the medical unit at noon because the medical staff was regularly on lunch break between noon and 1:00 pm. E. October-November 2011 Retaliation Against Easley Though Easley alleges that the denial of access to medical care by the DCI Officers and the failure to provide adequate medical care by the DCI Healthcare Providers may have had a retaliatory element, he states a separate claim against the DCI Officials which sounds entirely in retaliation. Easley alleges that he was placed in administrative confinement on October 14, 2011, and then transferred from DCI to Everglades Correctional Institution on December 9, 2011, in retaliation for filing grievances as to his medical treatment at DCI. In October 2011, a DCI corrections officer was assaulted in Section I of the prison (which included the DCI prison library). Because the identity of the officer’s assailants was unknown, all 100 inmates present in Section I of the prison on that day, including Easley, were placed in administrative confinement. The Office of the Inspector General of Florida, rather than the DCI Officials, conducted the investigation into the assault. Because the subsequent investigation could not determine the officer’s assailants, all DCI prisoners ■ then housed in administrative confinement (whose whereabouts at the time of the attack could not be confirmed) received “non-negative” transfers to other facilities for safety and security reasons. Easley also asserts that he lost “gain time” as a result of his placement in administrative confinement. The record shows, however, that Easley received seven days (of a possible ten days) of gain time in October 2011 and that he received ten days of gain time in December 2011. Easley forfeited any gain time for November 2011 not for being placed in administrative confinement, but for receiving an unrelated disciplinary report. F. District Court Proceedings The district court referred the case to a magistrate judge. On December 28, 2011, the magistrate judge granted Easley’s motion to proceed in forma pauperis. Following Easley’s amendment to his complaint, service on the defendants, and defendants’ Answers, the magistrate judge issued a scheduling order stating that discovery would conclude on December 17, 2012. Defense counsel deposed Easley on November 15, 2012. Defense counsel also brought documents covered by Easley’s . requested discovery to the prison for Easley to review. After the defendants responded to Eas-ley’s discovery requests, Easley filed several motions to compel. In particular, on November 26, 2012, Easley moved to compel the copying of documents presented to him in his prior meetings with defense counsel. Easley essentially requested that the Florida Department of Corrections provide these copies to him at no cost or with a bill for future payment. Easley’s prison account lacked sufficient funds to pay for the copying costs. The statement of charges provided by defense counsel shows that Easley sought 928 copies, for which he would have been charged $138.45. The defendants objected, asserting that the Federal Rules did not require a party served with a request for production (or a non-party) to make copies free of charge. Separately, on November 1, 2012, Eas-ley sought production of video recordings from administrative confinement, for the period of October 14, 2011 through November 2011. Easley alleges that these videos would demonstrate the involvement of the DCI Officials in the decision to place Easley in administrative confinement in retaliation for his grievances. The magistrate judge struck Easley’s motion to compel for failure to comply with the local rules. On December 4, 2012, Easley filed a motion to extend the time to complete discovery by 60 days. The magistrate judge denied this motion on December 6, 2012. Easley then moved, on December 12, 2012, for spoliation sanctions in connection with the destruction of the video recording, which he alleged was in bad faith. The magistrate judge denied the sanctions motion. Discovery expired on December 17, 2012. On January 18, 2013, all defendants moved for summary judgment, filing affidavits, a transcript of Easley’s deposition, and various exhibits. Easley also moved for summary judgment in his favor. He submitted a variety of records, 'including an array of grievances and grievance responses, as well as several affidavits, two from himself, several from other inmates, and one from corrections officer Sergeant Christy Sturtevant. Easley also moved to strike the defendants’ summary judgment motions because of his inability to obtain copies of the defendants’ discovery documents. . The magistrate judge issued a report and recommendation that the district court grant all defendants’ motions for summary judgment and deny Easley’s summary judgment motion. The district court adopted the report and recommendation, denied Easley’s various motions, and granted summary judgment in favor of all defendants. Easley timely appealed. II. STANDARD OF REVIEW The district court’s denial of a motion to compel discovery is reviewed for abuse of discretion. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir.2006). “District judges are accorded wide discretion in ruling upon discovery motions, and appellate review is accordingly deferential.” Harris v. Chapman, 97 F.3d 499, 506 (11th Cir.1996). ' We review de novo a district court’s grant of summary judgment, viewing the evidence in the light most favorable to the non-moving party. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir.2011). Summary judgment is appropriate “if the mov-ant 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.Civ.P. 56(a). We note before addressing the merits of Easley’s appeal that Easley appears pro se before this Court, as he did before the district court. Pro se pleadings are given more leeway than complaints submitted by counseled litigants. Dean v. Barber, 951 F.2d 1210, 1213 (11th Cir.1992). III. DISCOVERY After review of the record and Eas-ley’s claims, we conclude that the district court did not abuse its discretion in not extending the discovery deadline and proceeding to rule on cross-summary-judgment motions. Summary judgment should be granted only where the party opposing the motion has had an adequate opportunity for discovery. See Snook v. Trust Co. of Ga., 859 F.2d 865, 870 (11th Cir.1988). But “[wjhere a significant amount of discovery has been obtained, and it appears that further discovery would not be helpful in resolving the issues, a request for further discovery is properly denied.” Avirgan v. Hull, 932 F.2d 1572, 1580 (11th Cir.1991). As to the cross-summary-judgment motions, Easley submitted several hundred pages of records, including numerous grievances and grievance responses, medical records, gain-time reports, Department of Corrections rules, affidavits by individuals, and several of the defendants’ interrogatory responses. The defendants also filed hundreds of pages of Easley’s medical and prison records. Easley has not shown that the district court abused its discretion in denying Easley’s requests for further discovery beyond the discovery deadline. This is not to say that further discovery would yield no greater development of the factual record. But that is not the standard our law provides. “[W]e will not overturn discovery rulings unless it is shown that the District Court’s ruling resulted in substantial harm to the appellant’s case.” Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir.2003) (quotation omitted). Beyond conclusory allegations, Easley has also not shown the existence of any additional discoverable material that would have meaningfully altered the district court’s analysis as to the summary judgment motions. See Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995) (“The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case.”). As to the cost of copying discovery materials, Easley argues that the district court should have put a lien on Easley’s inmate account. In effect, Easley contends that his in forma pauperis status should cover the costs of discovery. See 28 U.S.C. § 1915 (allowing deferred payment, from the inmate account, for court fees). But the IFP statute does not mention the costs of discovery. Rather, § 1915 refers to only “court fees.” Neither defendants nor the district court were obligated to advance Easley his discovery costs. See Tabron v. Grace, 6 F.3d 147, 159 (3d Cir.1993) (“There is no provision in [§ 1915] for the payment by the government of the costs of ... litigation expenses, and no other statute authorizes courts to commit federal monies for payment of the necessary expenses in a civil suit brought by an indigent litigant.”). As to the video recordings for October 14, 2011 through November 2011, the defendants state that they were not requested until September 2012 and that, at that time, such recordings no longer existed. Nothing in the record suggests any bad faith of the defendants in not retaining videos from a year earlier. Alternatively, other than conclusory allegations, Easley has provided no explanation as to what information was in the video recordings or in the documents not copied that would have aided his case. See Iraola, 325 F.3d at 1286. IV. MERITS OF EASLEY’S CLAIMS A. The Deliberate Indifference Standard For Easley to secure redress under § 1983, he must demonstrate that the defendants, acting under color of state law, committed acts that deprived him of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. § 1983. The Eighth Amendment forbids “cruel and unusual punishments,” U.S. Const, amend. VIII, and prohibits “deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). To prevail on a deliberate indifference claim, Easley must show: “(1) a serious medical need; (2) the defendants’ deliberate indifference to that need; and (3) causation between that indifference and the plaintiffs injury.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306-07 (11th Cir.2009). To establish deliberate indifference, Easley must prove “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than [gross] negligence.” Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir.2010) (alteration in original). The defendants must have been “aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]” and then actually draw that inference. Farrow v. West, 320 F.3d 1235, 1245 (11th Cir.2003) (quotation omitted). Delay in treatment may, under certain circumstances, constitute deliberate indifference. See McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.1999). And “prison officials may violate the Eighth Amendment’s commands by failing to treat an inmate’s pain.” Id. at 1257. But “a simple difference in medical opinion between the prison’s medical staff and the inmate as to the latter’s diagnosis or course of treatment” does not support a claim of deliberate indifference. Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.1991); see also Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.1989). Nor do matters of medical judgment. Estelle, 429 U.S. at 107, 97 S.Ct. at 292-93. Deliberate indifference is not established where an inmate received care but desired different modes of treatment. Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir.1985).

11230746-30646

JACOBS, Circuit Judge: John Crane, Inc. (“Crane”), a manufacturer and distributor of sealing devices that contain asbestos, appeals from a personal injury judgment in favor of Paul and Margaret Caruolo, entered following a jury trial in the United States District Court for the Southern District of New York (Sweet, /.). It is not disputed on appeal that Paul Caruolo (“Caruolo”) contracted mesothelioma following exposure to asbestos during his service as a Navy fireman aboard ships in World War II, and during his later career in a manufacturing company in Rhode Island. Caruolo died after trial. Crane concedes that its sealing devices contain asbestos, but argues that it is entitled to judgment as a matter of law because: (i) the asbestos is encapsulated in its products and is not released into the air in harmful form by the procedures Caruolo performed; and (ii) plaintiffs failed to present any evidence showing that Caruolo was exposed to dangerous levels of asbestos fibers released from Crane’s products. In the alternative, Crane argues that it should be granted a new trial because, inter alia, the district court permitted plaintiffs’ medical expert to testify about the amount of asbestos in visible dust emanating from asbestos-containing products and about the opinions of another expert who was not called at trial. Finally, Crane argues that the district court erroneously applied Rhode Island law in determining whether Crane is jointly and severally liable. Plaintiffs cross-appeal, arguing that the district court erroneously applied New York law in computing prejudgment interest. We conclude that: (i) there was sufficient evidence to support the jury’s finding of Crane’s liability; (ii) the district court did not abuse its discretion in denying a new trial; (iii) the district court properly applied Rhode Island law with respect to joint and several liability; but (iv) the district court erroneously applied New York law in computing prejudgment interest. Accordingly, we affirm the judgment in all respects except that we vacate and remand for re-calculation of prejudgment interest in accordance with Rhode Island law. BACKGROUND Plaintiffs commenced this failure-to-warn products liability suit against 25 manufacturers of asbestos-containing insulation, claiming that Caruolo’s mesothelio-ma was caused by his workplace exposure to their products. An amended complaint added Crane as a defendant. Unlike many if not all of the other defendants, Crane does not manufacture insulation; the only asbestos-containing products that Crane manufactures are gaskets (rings used to make joints watertight) and packing (sealant material used in valves and other devices). Caruolo claimed that he was exposed to asbestos from Crane’s products when he served in the United States Navy — at the Brooklyn Navy Yard, the Norfolk Naval Shipyard, and at sea — from 1944 to 1950, and when he worked for the Rhee Elastic Corporation in Rhode Island and its successors (collectively referred to as “Rhee”), from 1950 to 1988. Plaintiffs’ case was consolidated with asbestos-related personal-injury claims brought by four other plaintiffs in the Southern District of New York, in part because the district court found that Car-uolo’s primary exposure to asbestos occurred at various shipyards in New York. See In re Asbestos Litig., No. 93 Civ. 3752, 1998 WL 230950, at *4-*7 (S.D.N.Y. May 8, 1998). Two of the cases settled prior to trial. The remaining three cases proceeded to a jury trial beginning on September 23, 1998. Crane was a defendant in the Caruolos’ action only. During trial, but prior to verdict, the district court ruled that Rhode Island law would govern the issue of joint and several liability, and New York law would govern the issue of prejudgment interest. See Caruolo v. A C & S, Inc., No. 93 Civ. 3752, 1998 WL 730331, at *3-*4 (S.D.N.Y. Oct.16, 1998). The jury returned a verdict in plaintiffs’ favor, assessed damages in the amount of $7,505,000, and calculated that Crane was 10% responsible for Caruolo’s injuries and the other manufacturers shared the remaining 90% of the liability. The district court subsequently reduced the jury’s damage award by the $2,079,500 in settlements that plaintiffs had received from other defendants. The resulting judgment is $5,448,242.50, including pre-judgment interest. Prior to the entry of judgment, plaintiffs moved for reconsideration of the district court’s ruling that New York law governed the issue of prejudgment interest. The district court denied the motion, adhering to its holding that “under New York choice of law principles, the allowance of prejudgment interest is controlled by the state ‘whose law determined liability on the main claim.’ ” Caruolo v. A C & S, Inc., No. 93 Civ. 3752, 1998 WL 730331 at *4 (S.D.N.Y. Oct. 16, 1998) (quoting Entron, Inc. v. Affiliated FM Ins. Co., 749 F.2d 127, 131 (2d Cir.1984)). After entry of judgment, Crane moved for post-trial relief, seeking: (i) judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure or a new trial pursuant to Rule 59(a); and (ii) reconsideration of the district court’s ruling that Rhode Island law governed the issue of joint and several liability. The district court denied the motions. See Caruolo v. A C & S, Inc., No. 93 Civ. 3752, 1999 WL 147740, at *24 (S.D.N.Y. Mar.18, 1999). First, the district court concluded that the evidence was sufficient to support liability, citing testimony by Caruolo and his shipmates that their work caused Crane’s products — containing up to 80% asbestos— to give off visible dust, and testimony by Dr. Steven Markowitz that such visible dust contains hazardous levels of asbestos. See id. at *4-*10. The court also found the evidence sufficient to support a jury finding that Crane should have known about the dangers of its asbestos products. See id. at *10 — *11. Second, the district court concluded that no new trial was warranted, rejecting challenges based on: (i) the admission into evidence of internal studies by bankrupt asbestos manufacturers, see id. at *12; (ii) Dr. Markowitz’s expert testimony concerning asbestos fiber release, see id. at *13; (iii) the admission into evidence of a study written by a non-testifying expert, see id. at *14-*15; (iv) errors in the jury charge, see id. at *15-*16; (v) an arguably prejudicial suggestion by plaintiffs’ counsel in summation as to the amount of a damage award, see id. at *16; and (Vi) the exces-siveness of the damage award under New York law, see id. at *16-*20. Finally, the district court granted Crane’s motion for reconsideration of the court’s ruling that Rhode Island law governed the issue of joint and several liability, but declined to alter its decision. See id. at *20-*24. The district court held that under New York choice of law rules, Rhode Island had the most significant interest in the outcome of the action because the Caruolos are Rhode Island residents and “the situs of Caruolo’s most regular and prolonged exposure [to asbestos from Crane’s products] was Rhode Island.” Id. at *23. This appeal followed. DISCUSSION A. Judgment as a Matter of Law We review the district court’s denial of Crane’s motion for judgment as a matter of law de novo, see Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 94 (2d Cir.1999), applying the same standards as the district court, see Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998); Stratton v. Department for the Aging, 132 F.3d 869, 878 (2d Cir.1997). Those standards are well established: “Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor.” Galdieri-Ambrosini 136 F.3d at 289. A court “must give deference to all credibility determinations and reasonable inferences of the jury,” and may not weigh the credibility of witnesses or otherwise consider the weight of the evidence. Id. Thus, judgment as a matter of law should be granted only if: “(1) there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].” Id. (citations omitted) (alterations in original). It is undisputed in this case that New York law governs Crane’s liability. Accordingly, the inquiry is whether the evidence presented at trial, when viewed in the light most favorable to the Caruolos, is insufficient under New York law to permit a reasonable juror to find that plaintiffs met their burden of proving that Crane failed to warn of the dangers of its products. Under New York law, “[a] manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known.” Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 N.Y.S.2d 764, 766, 700 N.E.2d 303 (1998); see also Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 582 N.Y.S.2d 373, 376, 591 N.E.2d 222 (1992). “[T]he inquiry in a duty to warn case ... focus[es] principally on the foreseeability of the risk and the adequacy and effectiveness of any warning.” Liriano, 677 N.Y.S.2d at 768, 700 N.E.2d 303. “Failure-to-warn liability is intensely fact-specific, including but not limited to such issues as feasibility and difficulty of issuing warnings in the circumstances; obviousness of the risk from actual use of the product; knowledge of the particular product user; and proximate cause.” Id. at 770 (citation omitted). Crane’s arguments on appeal concern this last issue — proximate cause. Crane does not contest that Caruolo’s mesothelio-ma was caused by exposure to asbestos. Moreover, one of Crane’s witnesses, George MeKillop, admitted that at the time Caruolo worked in the Navy, Crane’s gaskets were 70-80% asbestos and Crane’s packing was 45-50% asbestos. MeKillop also testified, however, that this asbestos was encapsulated before being used in Crane’s gaskets and packing, testimony which was corroborated at trial by the 1983 deposition testimony of Vance Vo-rhees, a former Crane employee. In addition, Crane’s experts testified that Crane’s products did not release harmful amounts of asbestos. Crane therefore argues that plaintiffs failed to establish proximate cause because there was no direct evidence that linked Crane’s products to the asbestos inhaled by Caruolo. Plaintiffs presented expert testimony on the release of asbestos from various products with which Caruolo had worked, but no such testimony as to products manufactured by Crane. But as set forth below, other evidence sufficiently supported an inference that Caruolo’s work with Crane’s products produced dangerous levels of asbestos fibers. Accordingly, this Court will not disturb the jury’s verdict. 1. Caruolo’s Exposure to Dust from Crane’s Products There was ample evidence that Caruolo’s work with Crane’s products produced visible dust, both in the Navy and at Rhee. In his videotaped deposition, which was received in evidence, Caruolo described his experiences as a fireman on three Navy ships from 1944 to 1950. Caruolo was responsible for firing the oil-fired burners in the ships’ boiler rooms, and for repairing leaks in boiler room valves and flanges. The valves directed a fluid or substance from one place to another; the flanges connected one pipe to another. Caruolo repaired leaking valves by removing and replacing the packing; he repaired leaking flanges by removing and replacing the gaskets. Caruolo testified that he used packing and gaskets manufactured by Crane, among others. There is evidence that these repairs caused particles of the gaskets and packing to become airborne in Caruolo’s work area. Caruolo first removed the cloth or cement insulation covering the flanges and valves. Then, on flanges, Caruolo would remove the old gasket and make a new gasket by “bang[ing]” gasket sheets with a hammer. Pieces of the gasket material would become airborne during this process, eventually falling to the floor, where they would be trampled on by the crew. On valves, Caruolo would remove the packing by pulling, chipping, poking and picking it away. In the process, packing material “definitely became airborne,” often falling on Caruolo’s clothes and on the floor. Caruolo’s shipmates corroborated Caruolo’s testimony about the dust produced when removing and replacing gaskets and valve packing. At Rhee, Caruolo started as a mix mill operator, then worked for ten years in shipping and receiving before becoming an apprentice electrician and ultimately, a licensed journeyman electrician. Caruolo’s responsibilities as an electrician included occasionally repairing boiler controls and valves. Gaskets were often around the valves, and Caruolo removed and replaced the gaskets, as he had done in the Navy. In the process, excess gasket material would land on his work bench and when the material was cleaned up, it would often become airborne and land on his clothes. The gasket material that Caruolo handled during this time was manufactured by Crane, among others. 2. Asbestos Content of Dust Plaintiffs’ expert witnesses testified that visible dust from gaskets or packing would likely contain hazardous levels of asbestos. Dr. Albert Miller testified that although asbestos fibers are invisible to the naked eye, when a worker sees visible dust coming from asbestos-containing products, it “means that there’s a very high concentration of asbestos” in the air. Dr. Steven Markowitz then expanded on this testimony, explaining: you really don’t get visible asbestos dust until probably five or ten fibers per cubic centimeter of air. That’s a high level. By comparison, the current allowable level by the federal government is one-tenth of one fiber per cubic centimeter of air. When you see visible asbestos dust, you are dealing with at least five or ten fibers per cc; in other words, 50 to 100 times what is now allowed. Dr. Markowitz farther testified that: working around visible dust creates a “high level of hazard of the asbestos-related diseases”; when a worker is exposed to a variety of asbestos products, all of which are releasing visible dust, “all those exposures contribute[] to that person’s risk” and there is no way to determine “which fiber is not responsible”; and Caruolo’s exposures to dust emanating from gaskets contributed to Caruolo’s mesothelioma, because: [t]hey were part of the totality of the exposure. He worked with these materials ... he pulverized [them], they became airborne, and he breathed them in. So there is no way one can say they didn’t contribute. To the contrary. All of his exposures contributed to his meso-thelioma, including this one. Dr. Markowitz conceded on cross-examination that he had never done air sampling for fiber release from asbestos products, that such sampling would be outside his field of expertise, that he had never seen gaskets or packing installed or removed, and that he was unaware of any studies associating the use of asbestos-containing gaskets and packing (as distinct from other asbestos-containing products) with the development of mesothelioma. However, on re-direct, Dr. Markowitz testified that he was familiar with two articles that discuss the results of tests involving gaskets and packing, in which Dr. James Millette measured the amount of asbestos fibers released when packing and gaskets are removed and found a range of up to one to four fibers per cubic centimeter, a level that Dr. Markowitz characterized as “clearly beyond what’s around now and is clearly hazardous.” We think that Dr. Markowitz’s testimony about the asbestos content in visible dust emanating from asbestos-containing products, and his testimony about Dr. Mil-lette’s study, furnished an evidentiary basis for a finding that the dust described by Caruolo as emanating from Crane’s products contained hazardous levels of asbestos. It is true that Dr. Markowitz could point to no studies measuring asbestos released from products manufactured by Crane; and on re-cross, Dr. Markowitz could not recall whether Dr. Millette’s tests involved Crane’s products, whether the tests simulated Caruolo’s use of the gaskets and packing, or whether other similar studies existed. Dr. Markowitz’s testimony was further undermined by Crane’s expert witnesses, who testified that Crane’s products did not release hazardous levels of asbestos. Dr. Michael Matteson, an aerosol technologist who studies the measurement and movement of particles in air, used a hacksaw to cut five samples of (new and aged) Crane gaskets and packing and measured a release of only .0062 asbestos fibers per cubic centimeter, which is below the level in ambient air. Dr. Matteson also pounded gasket material with a hammer, observed visible particles, but found fiber release below the level in ambient air. Finally, Dr. Matteson tested fiber release during the removal and installation of packing, again measuring asbestos levels lower than in ambient air. Dr. Victor Roggli, co-author of Pathology of Asbestos-Associated Diseases, testified that for an asbestos exposure “to be a substantial contributing factor” to mesothelioma, the product, inter alia, “needs to create levels [of asbestos] in the environment which are substantially greater than the background levels in the environment.” Based on Dr. Matteson’s test results, Dr. Roggli concluded that it was “unlikely” that Caruolo’s exposure to Crane’s gaskets and packing was a substantial contributing factor to his mesothelioma. Dr. Roggli also explained that Dr. Millette’s study was not done in time-weighted averages and that if Dr. Millette had used such averages, his test results would have been at or below the level of asbestos in the ambient air. Dr. Markowitz’s concessions and the testimony of Crane’s experts cast doubt on much of Dr. Markowitz’s testimony. But it was the jury’s province to assess Dr. Markowitz’s credibility in light of all of the evidence. Moreover, doubt was cast on the expert testimony offered by Crane as well. For example, on cross-examination, Dr. Matteson admitted that his tests did not replicate the pressures and temperatures applied to the materials handled by Caruolo. More significantly, Dr. Matteson took up to five minutes to make a single cut into the gasket or packing material, likely minimizing the production of dust, whereas Caruolo’s work was much less meticulous. It was up to the jury to decide which testimony to credit and discredit. B. New Trial Motion “A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” Atkins v. New York City, 143 F.3d 100, 102 (2d Cir.1998) (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir.1997)). “Unlike a motion for judgment as a matter of law, a motion for a new trial may be granted even if there is substantial evidence to support the jury’s verdict.” United States v. Landau, 155 F.3d 93, 104 (2d Cir.1998). In reviewing the district court’s denial of Crane’s new trial motion, “we must view the evidence in the light most favorable to the nonmoving party,” reversing “only if the trial court’s denial ... constitutes an abuse of discretion.” Atkins, 143 F.3d at 102 (citing Gibeau v. Nellis, 18 F.3d 107, 109 (2d Cir.1994) and Dailey v. Societe Generale, 108 F.3d 451, 458 (2d Cir.1997)). Crane argues that: (i) the district court improperly admitted speculative testimony of Dr. Markowitz regarding the amount of asbestos fibers in visible dust from asbestos products; (ii) the district court improperly permitted Dr. Markowitz to testify about Dr. Millette’s study; (iii) the district court improperly admitted “state-of-the-art” documents from other manufacturers of asbestos and asbestos insulation; (iv) the district court failed to provide requested jury instructions; and (v) plaintiffs’ summation was improper. We conclude that the district court did not abuse its discretion in denying Crane’s motion. 1. Evidentiary Issues The first three grounds concern the admissibility of evidence. District court judges enjoy wide latitude in determining whether evidence is admissible at trial; this Court reviews evidentiary rulings under a deferential abuse of discretion standard. See Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 16 (2d Cir.1996). Crane argues that Dr. Markowitz’s testimony regarding asbestos levels in visible dust was “speculative and unsupportable.” This is not a persuasive reason for granting a new trial because Dr. Miller testified that visible dust contains very high concentrations of asbestos, testimony that Crane does not challenge. So, even if Dr. Markowitz’s testimony was admitted improperly, that error cannot be said to have resulted in a “seriously erroneous result” or a “miscarriage of justice” because other, unchallenged testimony established the same facts. Moreover, Crane was permitted to cross-examine both Drs. Markowitz and Miller, and to present testimony from its own experts refuting the opinions of Drs. Markowitz and Miller. There similarly is no ground to grant a new trial with respect to testimony about Dr. Millette’s study. Crane argues that it was error for the district court to hold the study fell within the “learned treatise” exception to the hearsay rule, see Fed.R.Evid. 803(18), because: (i) Dr. Markowitz could not have reasonably relied on the study because his conclusions differed from those of the study; (ii) the plaintiffs failed to lay a foundation establishing that the article publishing the study’s findings was itself an authoritative publication in the relevant field of study; and (iii) Dr. Markowitz testified about the study on redirect, not direct. Crane also argues that the admission of the study was more prejudicial than probative, see Fed.R.Evid. 403, because Dr. Millette had been retained by the plaintiffs but was never called to testify. At trial, Crane never objected to Dr. Millette’s study on hearsay or prejudice grounds, thereby failing to preserve these arguments for appeal. See United States v. Inserra, 34 F.3d 83, 90 n. 1 (2d Cir.1994) (holding that where defendant objected to admissibility only on ground of authenticity, defendant failed to preserve objection based on hearsay). We therefore review this evidentiary ruling for plain error, that is, to determine if the ruling “resulted] in a miscarriage of justice” or “is an obvious instance of misapplied law.” Latsis v. Chandris, Inc., 20 F.3d 45, 49-50 (2d Cir.1994) (internal quotation marks and citation omitted); see also United States v. Hourihan, 66 F.3d 458, 463 (2d Cir.1995). We see no plain error in the ruling that Dr. Millette’s study fell within the “learned treatise” hearsay exception. Fed.R.Evid. 803(18). Dr. Markowitz cited the study as an example of “peer reviewed literature” demonstrating “significant dust release or asbestos release from gasket material during use.” Although the study’s findings did not coincide with Dr. Markowitz’s direct testimony, his testimony about it was provoked by Crane’s asking, on cross-examination, whether Dr. Markowitz had “found any studies associating the use of asbestos-containing gaskets to the development of mesothelioma.” In light of this challenge to his direct testimony, it was reasonable for Dr. Markowitz to rely on Dr. Millette’s study to support his testimony regarding the causal connection between the release of asbestos fibers from gaskets and the development of mesothelioma. The authoritativeness of the study was adequately established through Dr. Markowitz’s testimony. See Fed.R.Evid. 803(18) (statements contained in published treatises, periodicals or pamphlets on a scientific or medical subject may be “established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice”). The fact that Dr. Mar-kowitz first mentioned the study on redirect is of no consequence. We also conclude that the admission of Dr. Millette’s study was not overly prejudicial. Crane had ample opportunity to cross-examine Dr. Markowitz about Dr. Millette’s study, and to elicit additional testimony about the study from its own expert, Dr. Roggli. Furthermore, the district court fully complied with Fed.R.Evid. 803(18), allowing excerpts of the study to be read to the jury without distributing printed copies. With respect to Crane’s last evidentiary challenge, it was within the district court’s discretion to admit documents relating to other manufacturers’ knowledge of the dangers of asbestos because Crane had a duty to warn about all dangers which it “should have known to exist.” Baker v. St. Agnes Hosp., 70 A.D.2d 400, 421 N.Y.S.2d 81, 85 (2d Dep’t 1979) .(internal quotation marks and citations omitted); see also George v. Celotex Corp., 914 F.2d 26, 28-29 & n. 1 (2d Cir.1990). Because these documents reflected other industry members’ knowledge of asbestos dangers — dangers which plaintiffs were permitted to argue that Crane, as an industry member, should have known to exist — the district court properly admitted the documents. 2. Jury Charge As to Crane’s fourth ground for a new trial, Crane argues in cursory fashion that the jury charge: (i) inadequately segregated Crane from the other defendants; (ii) omitted any reference to the special characteristics of Crane’s gaskets and packing; (iii) failed to instruct the jury against imputing other defendants’ knowledge to Crane; (iv) failed to instruct that Crane had no duty to warn of the dangers of other manufacturers’ products; (v) confused the jury as to the meaning of “substantial contributing factor” with respect to proximate cause; and (vi) erroneously charged that Crane could be liable if found reckless. Jury instructions are erroneous if they mislead the jury or do not adequately inform the jury of the law. See Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 135 (2d Cir.1999); Hathaway v. Coughlin, 99 F.3d 550, 552-53 (2d Cir.1996). “We review a claim of error in the district court’s jury instructions de novo and will reverse only if the appellant shows that the error was prejudicial in light of the charge as a whole.” Japan Airlines Co. v. Port Auth., 178 F.3d 103, 110 (2d Cir.1999). None of the claims concerning the jury charge justify a new trial. The district court was not obliged to charge the jury about the specific characteristics of Crane’s products or to otherwise distinguish Crane from the other defendants; singling out a particular piece of evidence in a jury charge is highly discretionary, and the district court did not abuse that discretion by refusing to do so here. Cf. District Council 37 v. New York City Dep’t of Parks & Recreation, 113 F.3d 347, 356 (2d Cir.1997) (“[T]he district court needs to instruct the jury only as to applicable law.”); United States v. Pujana-Mena, 949 F.2d 24, 30 (2d Cir.1991) (instruction singling out character evidence “threatens to interfere with one of the quintessential functions of the jury — to determine the relative weight, if any, to be given to particular evidence”). The district court also did not err when it failed to include an instruction explicitly concerning imputation of knowledge because the court set forth the correct legal standard that Crane had a duty to warn about dangers which it “should have known” to exist. Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 N.Y.S.2d 764, 766, 700 N.E.2d 303 (1998); Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 582 N.Y.S.2d 373, 376, 591 N.E.2d 222 (1992); Baker, 421 N.Y.S.2d at 85. Nor was the district court required to accept Crane’s proposed instruction that Crane had no duty to warn about other manufacturers’ products; given the facts of this case, the charge was not mandatory under New York law. See, e.g., Rastelli 582 N.Y.S.2d at 376-77, 591 N.E.2d 222 (holding there is no duty to warn about another manufacturer’s product when defendant manufactured only sound products and had “no control over the production” of the defective products at issue in the case). The district court therefore did not err in rejecting Crane’s proposed charge in favor of the legally correct instruction that the duty to warn is “nondelegable” and “a defendant may not rely on others to issue an adequate warning.” See Guarnieri v. Kewanee-Ross Corp., 270 F.2d 575, 579 (2d Cir.1959); Geressy v. Digital Equip. Corp., 980 F.Supp. 640, 650 (E.D.N.Y.1997). Similarly, although the district court’s proximate cause instruction omitted the “substantial contributing factor” language that Crane requested, the charge given certainly reflected the standards for proximate cause under New York law: “It’s not necessary for a defendant’s product to be the sole or even the dominant cause of such injuries in order to be considered proximate cause.... Where more than one factor operates separately or together with others to cause an injury or disease, each may be a proximate cause if it is a substantial factor in bringing about that injury.” See Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 403, 450 N.E.2d 204 (1983). Finally, although Crane challenges the recklessness charge (on the ground that it failed to distinguish between defendants) Crane was never alleged to have acted recklessly, and the jury was not asked to determine whether Crane acted recklessly. Rather, the jury was asked in relevant part if Crane “fail[ed] to use reasonable care in respect to the foreseeable use in preparing, mar keting, or warning or failing to warn about its asbestos-containing products.” 3. Summation Crane’s final ground for seeking a new trial is that plaintiffs’ summation was improper. Crane does not specify on appeal which aspects of the summation were improper, but we assume that Crane renews its argument, made in the district court, attacking plaintiffs’ suggestion of a specific damage amount. It was within the district court’s discretion to find that this suggestion did not warrant a new trial, particularly since the district court cautioned the jury that the numbers given by the Caruolos were simply a suggestion. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912-13 (2d Cir.1997) (declining “to adopt a per se rule prohibiting counsel from suggesting a specific sum as damages.”). C. Choice of Law: Joint and Several Liability

10527801-23511

KRUPANSKY, Circuit Judge. The plaintiff-appellant in this ease, Linda Sewell (plaintiff or Sewell), a white female, has appealed from the entry of final judgment in favor of the defendants-appellees (defendants) after a bench trial. Sewell had alleged racial and sexual discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C.A. § 2000e et seq., and 42 U.S.C.A. §§ 1981 and 1983; and that she had been deprived of a property interest in her position as a sergeant of the Corrections Department without due process of law in violation of § 1983. Sewell was a corrections officer employed by the Jefferson County Fiscal Court. She was appointed acting sergeant by the Jefferson County Corrections Department (Corrections Department) on January 4, 1980. On January 18, 1981, the Corrections Department promoted her to the position of a regular sergeant after completing a six month probationary period of service in that grade. On September 3, 1981, Sewell was demoted by the Corrections Department to the position of a corrections officer, because it had been erroneously concluded that her probationary period had not expired. Sewell filed a charge of racial and sexual discrimination against the Corrections Department that same day, September 3, 1981, with the Equal Employment Opportunity Commission (EEOC). Sewell filed a second charge against the Corrections Department with the EEOC on September 14, 1981, alleging unlawful retaliation and demotion. The Secretary of the Fiscal Court, Richard Frey (Secretary or Frey), wrote Sewell on September 25, 1981, advising her that she had mistakenly been demoted on the erroneous assumption that she was still serving as a probationary employee. Frey retroactively reinstated Sewell on that date with full back pay. Plaintiff was subjected to a second demotion by the Corrections Department on February 24, 1982 because she had permitted two inexperienced, untrained and unarmed female correction officers to supervise a newly opened wing of the correctional department for a period of nearly 45 minutes, although she was aware that the area in question had experienced inmate disorders several days previously. On the night in question, several inmates again had become unruly, and although no one was injured, the inmates refused to return to order until an armed officer arrived on the scene. On February 22, 1982, Sewell’s supervisor, Major Montgomery, a white male, recommended that she be demoted from sergeant to corrections officer as a result of the incident. Major Montgomery conferred with Sewell for some 30 minutes on that date, in the presence of another employee of the Department of Corrections, and advised her of both of the pending decision to demote her and of the reasons underlying that decision. Secretary Frey thereupon informed the plaintiff on February 24, 1982 that she was demoted, and advised her that she had the right to appeal the action to the Corrections Merit Board (Merit Board). Sewell filed an appeal to the Merit Board, which unanimously rejected her challenge. Plaintiff did not further appeal the Merit Board’s decision to either the Jefferson Circuit Court or the Jefferson County Fiscal Court, as provided by Kentucky statute, but rather filed the present suit in the United States District Court for the Western District of Kentucky on March 22, 1983. In her complaint, Sewell specifically requested a jury trial for all legal claims presented. It is undisputed that the plaintiff had properly indorsed a request for a jury trial on the complaint in accordance with Federal Rule of Civil Procedure 38(b). Following a pretrial conference on July 5, 1986, the court entered an order scheduling the case for a September 23, 1986 jury trial on all issues except plaintiff’s claim under Title VII. During the final pretrial conference, conducted on September 15, 1986, counsel for Sewell orally requested a continuance of the September 23, 1986 jury trial date. The district court granted the motion and removed the case from the jury trial docket and continued the case on September 17, 1986 for trial before the court on January 22, 1987. (“IT IS ORDERED that this case be remanded from the trial calendar of September 23, 1986, and is continued to JANUARY 22, 1987, at 10:00 A.M. for a trial before the COURT.”) (emphasis in original). Plaintiff’s counsel made no objection to the court’s order reassigning the case for trial before the court until the commencement of the January 22, 1987 trial. On January 22, 1987, after the parties had announced that they were prepared to proceed with the trial, plaintiff's counsel requested the court to summon the jury. The court examined the order of September 17, 1986, and noted that it stated trial was to be before the court. After a discussion with counsel for the parties, the court concluded that Sewell had waived the right to trial by jury by failing to timely object to the court’s September 17, 1986 order removing the case from the jury trial docket. The court proceeded to try all of Sewell’s claims under Title VII, and §§ 1981 and 1983. The court entered judgment for the defendants on all counts on February 4, 1987 and filed a memorandum opinion and order on May 22, 1987. On appeal, Sewell has argued that the district court erred by denying her fundamental constitutional right to a trial by a jury. See U.S. Const, amend. VII (“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. ...”); Fed.R.Civ.P. 38(a) (“The right of trial by jury as declared by the Seventh Amendment to the Constitution ... shall be preserved to the parties inviolate.”); see also Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811, 81 L.Ed. 1177 (1937); Bellmore v. Mobil Oil Corp., 783 F.2d 300, 306 (2nd Cir.1986). Although the right to a jury trial is guaranteed by the Constitution, “like other constitutional rights, can be waived by the parties.” 9 C. Wright & A. Miller, Federal Practice and Procedure § 2321, at 101 (1971); see also Fed.R.Civ.P. 38(d), 39(a); United States v. Moore, 340 U.S. 616, 621, 71 S.Ct. 524, 526, 95 L.Ed. 582 (1951); Bellmore, 783 F.2d at 306. The standard for determining whether there has been a subsequent waiver of a jury trial, which had previously been timely entered pursuant to Federal Rule of Civil Procedure 38(a), is set forth in Federal Rule of Civil Procedure 39(a): The trial of all issues so demanded shall be by jury, unless ... the parties or their attorneys of record, by written stipulation or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury.... Fed.R.Civ.P. 39(a); see also 9 C. Wright & A. Miller, Federal Practice and Procedure § 2332, at 108-09 (1971); compare Fed.R. Civ.P. 38(d) (“A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.”); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2321, at 101-02 (1971). The requirements of Rule 39(a) have “been interpreted broadly so as to encompass orders entered by the court and not objected to.” Lovelace v. Dall, 820 F.2d 223, 227 (7th Cir.1987). In the instant case, the counsel for the plaintiff made an oral motion for a continuance of the trial date during the final pretrial conference on September 15, 1986. The court granted the motion orally, and then entered a written order on September 17, 1986 which stated that the case was continued until January 22, 1987 “for a trial before the court.” The court’s order of September 17, 1986 was binding upon all parties, see Fed.R.Civ. P. 16(e); Ghandi v. Police Dep’t of Detroit, 823 F.2d 959, 962 (6th Cir.1987), cert. denied sub nom. Ghandi v. Fayed, — U.S. -, 108 S.Ct. 774, 98 L.Ed.2d 861 (1988); Daniels v. Board of Educ. of Ravenna School Dist., 805 F.2d 203, 209 (6th Cir.1986); accord Annot., Binding Effect of Court’s Order Entered After Pretrial Conference, 22 A.L.R.2d 599, 601-03 (1952), and constituted a “sufficient entry in the record to satisfy the requirements of Fed.R.Civ.P. 39(a).” Fields Eng’g & Equip., Inc. v. Cargill, Inc., 651 F.2d 589, 592 (8th Cir.1981) (waiver contained in the court’s order); see also Harden v. Adams, 760 F.2d 1158, 1166 (11th Cir.) (waiver contained in amended complaint and later orders of the court), cert. denied sub nom. Grimmer v. Harden, 474 U.S. 1007, 106 S.Ct. 530, 88 L.Ed.2d 462 (1985); Moser v. Texas Trailer Corp., 623 F.2d 1006, 1011 (5th Cir.1980) (amended complaint which provided for trial “without a jury” sufficient to waive jury trial); General Business Servs., Inc. v. Fletcher, 435 F.2d 863, 864 (4th Cir.1970) (order of court noting waiver of jury trial); accord Lovelace, 820 F.2d at 227 (pretrial minutes stating that jury demand withdrawn and matter set for bench trial; court decided there was no waiver based upon other grounds). The plaintiff, however, has urged this court to find that the September 17, 1986 order was insufficient by itself to evidence a waiver of Sewell’s right to a jury trial, charging that there was no record that the parties to this controversy had ever discussed the issue. It is well established, however, that there is no requirement that a written expression of waiver be accompanied by any additional documentation. See, e.g., Fields Eng’g & Equip., Inc., 651 F.2d at 592 (“It is immaterial that the pretrial conference itself was not on the record. The agreement to waive a jury ... was recorded in the pretrial order.”); Fletcher, 435 F.2d at 864 (affirmed trial before court where appellant claimed that he thought court had agreed at pretrial conference to submit issue of damages to jury, but pretrial order reflected waiver of jury trial and the pretrial conference had not been recorded); Annot., Binding Effect of Court’s Order Entered After Pretrial Conference, 22 A.L.R.2d 599, 602 (1952) (“[Pjarties may be bound by recitals in the pretrial order or report on the theory that they are stipulations.”); accord Moser v. Texas Trailer Corp., 623 F.2d 1006, 1010-11 (5th Cir.1980) (appellant failed to object to amended complaint waiving jury trial; no record that parties had discussed issue). Furthermore, the fact that the plaintiff in the case at bar made no objection to the language of the September 17, 1986 order for nearly four months provided additional support for the district court’s conclusion that there had been a waiver of the jury trial. See United States v. Missouri River Breaks Hunt Club, 641 F.2d 689, 693 (9th Cir.1981) (judge’s oral statement that parties had waived jury trial affirmed in light of appellant’s failure to have objected in the two months before bench trial began); Southland Reship, Inc. v. Flegel, 534 F.2d 639, 644 (5th Cir.1976) (failure to have made any objection for over a month after judge’s oral ruling regarding bench trial sufficient to affirm waiver of jury trial); accord Harden, 760 F.2d at 1168 (no objection made to amendment to the complaint or court’s orders indicating waiver of jury trial); cf. Ghandi, 823 F.2d at 963 nn. 1 & 3 (failure to have moved to amend the court’s order of September 17, 1986 pursuant to Fed.R.Civ.P. 16(e)); Daniels, 805 F.2d at 209 (same). Plaintiff’s disclaimer of knowledge that the September 17, 1986 order had assigned the case for a bench trial is likewise of no significance because inadvertence or mistaken impression is not sufficient to relieve the party from the effects of an otherwise valid waiver of a jury trial. See Fletcher, 435 F.2d at 864; Bush v. Allstate Ins. Co., 425 F.2d 393, 396 (5th Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 64, 27 L.Ed.2d 64 (1970). Nor did the plaintiff’s objection at the commencement of the bench trial serve to reinstate the right to a trial by jury. “Ordinarily, once a party withdraws his demand for a jury trial, with the requisite consent of the other parties, he may not change his mind.” Hanlon v. Providence College, 615 F.2d 535, 538-39 (1st Cir.1980); see also West v. Devitt, 311 F.2d 787, 788 (8th Cir.1963) (“The mere fact that petitioner had changed his mind would not of itself require the court to set aside the procedural order made.”); Fletcher, 435 F.2d at 864 (renewed demand for jury trial made five days after pretrial order expressing waiver of same did not preserve right); Annot., Withdrawal or Disregard of Jury Trial in Civil Action, 64 A.L.R.2d 506, 517-19 (1959) (“The rule recognized in a number of cases is that once a waiver of jury trial has matured, the waiver may not be withdrawn at the insistence of one party.”); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2321, at 104 & n. 64 (1971); accord Bellmore, 783 F.2d at 307 (“[Something beyond the mere inadvertence of counsel is required to relieve a party from its waiver.”) (applying Fed.R. Civ.P. 39(b)) (quoting Alvarado v. Santana-Lopez, 101 F.R.D. 367, 368 (S.D.N.Y.1984)). The suggestion that the district court erred in concluding that Sewell had waived the right to trial by jury is accordingly without merit. In the alternative, the plaintiff has argued that this action should be reversed and remanded because the district court erred in finding that Sewell did not suffer from sex or race discrimination in her employment. The district court initially determined that Sewell had presented only marginal evidence of disparate treatment based primarily upon a comparison of disciplinary action taken against the plaintiff, a white female, and the actions taken against another officer, Sgt. Erroyl Cheatum (Cheatum), a black male. Nevertheless, the district court accorded the plaintiff’s evidence sufficient weight to support a prima facie case that would withstand a defense motion for dismissal. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Selden Apartments v. United States Dep’t of Hous. & Urban Dev., 785 F.2d 152, 160 (6th Cir.1986). The court then concluded that the defendants had articulated a legitimate, nondiscriminatory reason for Sewell’s demotion because her actions had endangered the safety of other officers and inmates, while those of Cheatum, the employee with whom her disciplinary actions had been compared, had not. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824; Selden Apartments, 785 F.2d at 160. Upon concluding that the plaintiff had failed to rebut the nondiscriminatory evidence produced by the defendants, the district court ruled that, as a matter of law, Sewell had failed to carry her burden of proving racial or sexual discrimination under Title VII, see United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983); see also Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; McDonnell Douglas Corp., 411 U.S. at 804, 93 S.Ct. at 1825; Selden Apartments, 785 F.2d at 160-61, or under §§ 1981 and 1983. See Daniels, 805 F.2d at 207 (6th Cir.1986) (“[T]he order and allocation of proof, applicable in a disparate treatment case under Title VII, may be utilized in adjudicating race discrimination claims arising under sections 1981 and 1983.”); Shah v. General Elec. Co., 816 F.2d 264, 267 n. 1 (6th Cir.1987) (“The order and allocation of proof in a section 1981 case are the same as in a Title VII action.”); Long v. Ford Motor Co., 496 F.2d 500, 505 n. 11 (6th Cir.1974) (“[T]he principles governing [a Title VII case] apply with equal force to a § 1981 action.”); cf. Cooper v. Federal Res. Bank of Richmond, 467 U.S. 867, 874, 104 S.Ct. 2794, 2798, 81 L.Ed.2d 718 (1984) (“Basic principles of ... collateral estoppel apply” in discrimination actions predicated upon Title VII, Section 1981 and Section 1983.) The district court’s subsidiary factual findings can be reversed on appellate review only if this court finds them to be “clearly erroneous.” See Fed.R.Civ.P. 52(a) (“Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous....”); Rose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1959, 80 L.Ed.2d 502 (1984) (“A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)); Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (same standard); Batts v. NLT Corp., 844 F.2d 331, 336 (6th Cir.1988). In the instant case, the district court’s factual findings were anchored in credibility assessments of a number of witnesses, including Sewell herself, her immediate supervisor, Major Montgomery, and Secretary Frey. The court assigned greater credibility to the testimony of Major Montgomery and Secretary Frey than the testimony of Sewell, and adopted their version of the facts. On appellate review, Rule 52(a) commands that “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Fed.R.Civ.P. 52(a); see also Bose Corp., 466 U.S. at 499-500, 104 S.Ct. at 1959; Connaughton v. Harte Hanks Communications, Inc., 842 F.2d 825, 829 (6th Cir.1988), cert. granted, — U.S. -, 109 S.Ct. 257, 102 L.Ed.2d 245 (1988). Based upon these credibility assessments, the district court’s conclusions that the defendants had established a legitimate, nonpretextual reason for the disparity in treatment accorded to Sewell and Sgt. Cheatum and that the plaintiff had failed to present any evidence to refute this justification were not clearly erroneous. Anderson, 470 U.S. at 574, 105 S.Ct. at 1512 (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”); Batts, 844 F.2d at 336-37; Watson v. Fort Worth Bank & Trust, 798 F.2d 791, 798-99 (5th Cir.1986), vacated and remanded on other grounds, — U.S. -, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). In light of these factual determinations, the district court’s ultimate conclusion that the plaintiff had not been subjected to racial or sexual discrimination was appropriate. See, e.g., Batts, 844 F.2d at 337. Finally, Sewell has alleged that the defendants failed to provide her with a pre-deprivation hearing before her termination, as mandated by the Supreme Court in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), aff'g 721 F.2d 550 (6th Cir.1983), and that the defendants had therefore deprived her of a property interest without due process of law in violation of § 1983. It is undisputed, however, that although Sewell was not provided with a pre-deprivation hearing before her September 3, 1981 demotion, she was retroactively reinstated, with full back pay and benefits, on September 25, 1981, and was accordingly not deprived of any property interest without due process of law as a result from her demotion of September 3, 1981. Compare Carter v. Western Reserve Psychiatric Rehabilitation, 767 F.2d 270, 272 n. 1 (6th Cir.1985) (two day suspension was considered “de minimis and not deserving of due process consideration.”) with Boals v. Gray, 775 F.2d 686, 689 n. 5 (6th Cir.1985) (five day suspension not de minimis); id. at 697 (Wellford, J., concurring) (initial three day suspension was “de minimis property deprivation not deserving of due process consideration;” cumulative suspension of five days duration not de minimis); accord Garraghty v. Jordan, 830 F.2d 1295, 1299 (4th Cir.1987) (suspension not a de minimis deprivation where plaintiff “lost compensation and other emoluments of the office for the period of the suspension.”)- Furthermore, the plaintiff is barred from recovering under § 1983 for deprivation of property without due process by her failure to have demonstrated that the remedies provided to her under state law, namely, an appeal of the Merit Board’s actions to the Jefferson County Circuit Court or the Jefferson County Fiscal Court, were inadequate to rectify any error committed by the Merit Board. See Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981); Wilson v. Beebe, 770 F.2d 578, 583 (6th Cir.1985) (en banc); Vicory v. Walton, 721 F.2d 1062, 1065-66 (6th Cir.1983), cert. denied, 469 U.S. 834, 105 S.Ct. 125, 83 L.Ed. 2d 67 (1984). In regard to Sewell’s February 24, 1982 demotion, Sewell herself testified during the trial that she had a meeting with Major Montgomery on February 22, 1982, during which they had discussed her forthcoming demotion. The district court credited Major Montgomery’s testimony that, during their February 22, 1982 meeting, he had explained to Sewell the reasons for her demotion, and had provided her with an opportunity to respond to his statements. This encounter satisfied the requirements of a pre-deprivation hearing mandated by Loudermill in that Sewell was provided with “oral ... notice of the charges against [her], an explanation of the employer’s evidence, and an opportunity to present [her] side of the story.” Loudermill, 470 U.S. at 546, 105 S.Ct. at 1495; see also Duchesne v. Williams, 849 F.2d 1004, 1007 (6th Cir.1988) (en banc); Garraghty, 830 F.2d at 1300; Schaper v. City of Huntsville, 813 F.2d 709, 714 (5th Cir.1987). Plaintiff’s suggestion that she was not properly accorded her pre-deprivation due process rights is in error. This court has considered the plaintiff’s remaining assignments of error and has concluded that they are without merit. Accordingly, the decision of the district court is AFFIRMED. . In her complaint, plaintiff had named as defendants the Jefferson County Fiscal Court, which is an administrative and legislative governmental agency of Jefferson County, Kentucky, and which was at all times relevant to this action the employer of Sewell. Plaintiff also named several elected commissioners of the Fiscal Court (Mitchell McConnell, Carl Brown, Jim Malone and Sylvia Watson); the Jefferson County Corrections Department, which is a governmental agency under the control and direction of the Jefferson County Fiscal Court; the Chief Administrative Officer and Secretary of Corrections of the Fiscal Court (Richard Frey) (Secretary Frey); and the Director of Jefferson County Personnel (Jeannette Priebe). The Jefferson County Corrections Department and the Director of Jefferson County Personnel were dismissed from this litigation; plaintiff has not appealed that action. All other parties will be referred to collectively as the “defendants.” . Sewell testified that she was told only that she was to be demoted, and that she was not advised of the evidence which supported this action. Major Montgomery testified that she was informed of the reasons behind her demotion. The district court credited Major Montgomery's version of these events. . That rule states that: Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party. Fed.R.Civ.P. 38(b) (emphasis added).

7638081-9528

POSNER, Chief Judge. Pittman and Boyd, the sole shareholders of Bee Bus Line, Inc., a provider of school busing in Milwaukee, were convicted by a jury of filing false income tax returns and of related offenses (including evasion of corporate tax owed by Bee Bus Line) under the Internal Revenue Code. 26 U.S.C. §§ 7201, 7206. They were sentenced to 18 and 15 months in prison, respectively. They had failed to report on the corporation’s tax return several hundred thousand dollars in revenues from busing kids to and from a private school. Instead the money was deposited in Pittman’s personal bank account and part of it at least was used to pay personal expenses of Pittman and Boyd. The principal argument on appeal is that the judge should have let the defendants place before the jury certain evidence bearing on the issue of their willfulness. We know from Cheek v. United States, 498 U.S. 192, 202, 111 S.Ct. 604, 610-11, 112 L.Ed.2d 617 (1991), that the defendants could not be convicted if they believed they were not filing a false return, however unreasonable their belief. They wanted to testify that they believed that the Milwaukee public school system, a major customer, was hostile to their company and would jigger the system’s request for bids in such a way as to prevent the company from bidding successfully. For example, if the school system wanted a bid on a service that would require 50 buses to provide, it would, because it knew that Bee Bus Line had only 50 buses, artificially inflate its requirements so that 100 buses were necessary. To defeat this wicked scheme the defendants used the revenue from the private school to buy buses secretly so that Bee Bus Line would have more buses than the Milwaukee public school system thought it had and therefore could bid for the artificially inflated service. The defendants dared not reveal the purchases of the additional buses, or even the revenue that enabled them to make the purchases, on Bee Bus Line’s fi nancial statements because they believed that the Milwaukee public school system had access to all such records. Thus, as the lawyer for one of the defendants told the district judge, “the interest [of the defendants] was not in the taxes at all. The interest was in how do we best cope with the Milwaukee School Board?” All this is fantastic in the extreme — especially the suggestion that by revealing the income from the private school the defendants would have revealed their purchase of the additional buses. But since some people have crazy beliefs and a crazy belief can be a defense to a charge of false filing, we can say neither that the defendants did not believe the story they wanted to spin to the jury nor that, if that was their belief, it is legally irrelevant because crazy. The district judge understood these points perfectly well but, even so, he ruled that the belief was irrelevant to the charges. If the defendants knew that they had to report on the books of their corporation the income that it had received from the private school, the fact that their motive in flouting this known duty was not to cheat the federal government but instead to confound a malicious public school board would be no more exculpatory than if they had wanted to donate the money they saved by evading taxes to Mother Theresa. United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976) (per curiam); United States v. Rawlings, 982 F.2d 590, 592 (D.C.Cir.1993); United States v. Powell, 955 F.2d 1206, 1210 (9th Cir.1991). At the oral argument of the appeal the defendants’ lawyers redescribed their clients’ belief in a way that succeeded at last in linking it to the issue of willfulness. The defendants did not believe they owed any taxes on their income from the private school, because that income was offset by various credits and deductions. They wanted to introduce the evidence of their motive in concealing that income — a motive unrelated to taxes because they did not think they owed any taxes — in order to negate any inference of a known duty to pay that might be drawn from their action in diverting the income to a private bank account. This redes-cription does not get the defendants to first base with the false-filing count. They do not deny that their corporation was required to file an income tax return, and the duty to report one’s income on one’s income tax return is not cancelled by the fact that one may have credits or deductions that reduce one’s income tax liability to zero. But the defendants were also convicted of evading taxes and if they did not know they owed taxes the conviction was improper. Insofar as an inference of knowledge might be drawn from their diversion of income to a private bank account, evidence of a motive for that diversion unrelated to taxes would bolster their defense that they were not willful. At least the evidence would be relevant, and the district judge excluded it on the ground that it was irrelevant. See Cheek v. United States, supra, 498 U.S. at 203, 111 S.Ct. at 611; Watkins v. United States, 287 F.2d 932 (1st Cir.1961). The only difficulty with the defendants’ argument is that it was not made either in their briefs (their counsel told us that the paragraph in which the argument was made had been edited out of their opening brief by mistake) or to the district judge when he sustained the government’s objection to the evidence. If the error in excluding the evidence could be said to be plain, implying an error that both can be identified as such without elaborate factual inquiry and may have caused the conviction of an innocent person, United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993); United States v. Caputo, 978 F.2d 972, 973-75 (7th Cir.1992), then we can forgive the waiver and correct the error even at this late date; but it is plain in neither sense. It is far from clear that there is any factual basis for the assertion that the defendants honestly believed they owed no taxes; and it is extraordinarily unlikely that a jury would have credited this fantastic theory had it been presented to them. The defendants present several other grounds for reversal. The first is that the Jencks Act, 18 U.S.C. § 3500, required the disclosure to them of the entire investiga tive report of the internal revenue agent who prepared the case against them and recommended that they be prosecuted. The Act, so far as relevant here, requires the disclosure of any written statement, made by or signed or otherwise adopted or approved by a witness called by the government, that relates to the subject matter of the witness’s testimony. §§ 3500(b), (e)(1). If there is no overlap between the statement and the testimony, the statement cannot be used to impeach the testimony and so disclosure of the statement is not required. If as in this case the government claims that part of the witness’s statement is unrelated to the witness’s testimony, the district judge examines the statement in camera. Here after doing so the judge ruled that the government did not have to disclose the first 23 pages of the agent’s report because they were just a summary of documents and other evidence that had already been turned over to the defendants. The judge distinguished United States v. Cleveland, 507 F.2d 731 (7th Cir.1974), where a similar report was ordered disclosed, on the ground that there the government had been proceeding under the net-worth method of proving tax evasion. That method required the agent not merely to identify income that had not been reported, as was the case here, but also to infer the taxpayer’s income from his expenditures and assets. We have read the 23 pages, and while they consist mainly of a summary of the evidence disclosed to the defendants (the evidence itself is listed in the remaining pages of the agent’s report, which were turned over to the defendants), they also contain the agent’s inferences or impressions (as in Cleveland) concerning such matters as the defendants’ willfulness. The agent, however, did not testify about willfulness. He testified only about what the defendants did with the income of their corporation, which is to say deposited some of it in personal bank accounts and from there checked it out to pay personal expenses. As the only part of the agent’s report that was not a mere summary of evidence already disclosed to the defendants did not relate to his testimony, it did not have to be disclosed. Norinsberg Corp. v. U.S. Dept. of Agriculture, 47 F.3d 1224, 1229 (D.C.Cir.1995); United States v. Neal, 36 F.3d 1190, 1197 (1st Cir.1994). The failure to disclose was in any event harmless, not only because there is no impeaching material in the 23 pages but also because the defendants do not point to anything in the agent’s testimony with which they disagree and thus that they would want to impeach if they could. The Internal Revenue Service is forbidden to issue a summons (the equivalent of a subpoena) to a taxpayer, seeking documents or other information, after the Treasury Department recommends to the Attorney General that a grand jury be asked to investigate the taxpayer for possible criminal violations of the Internal Revenue Code. 26 U.S.C. § 7602(c). Such summonses were issued to defendant Pittman, and to Bee Bus Line, after a grand jury investigation was opened of possible money laundering by the defendants. The question is whether the issuance of the summonses in these circumstances violated section 7602(c).

606612-17828

LOURIE, Circuit Judge. PPG Industries, Inc. (“PPG”) and PPG Industries Ohio, Inc. (“PPG Ohio”) appeal from the summary judgment of the United States District Court for the Northern District of Illinois holding, on The Lock-former Company’s (“Lockformer’s”) motion that United States Patent 5,177,916 was not infringed. Lockformer Co. v. PPG Indus., Inc., No. 99-C-6799, 2003 WL 1563703 (NJD.Ill. Mar. 25, 2003) (“Summary Judgment Order”). Because the district court did not err in its claim construction, and because Appellants have not shown that a genuine issue of material fact exists as to whether Lockformer’s accused device employs an adhesive, we affirm. BACKGROUND Lockformer is an Illinois company that manufactures and sells roll-forming equipment for making insulating glass units (“IGUs”), commonly known as thermally insulated double-pane windows. TruSeal is a company based in Ohio that manufactures and sells products, including the desiccant matrix used in the accused Lock-former machine, to the IGU industry. TruSeal is the exclusive distributor of Lockformer’s allegedly infringing machine. PPG Ohio is the owner of United States Patents 5,177,916; 5,665,282; and 5,675,-944. PPG is licensed under PPG Ohio’s patents and manufactures and sells glass for use in IGUs. An IGU is comprised of a pair of flat glass panes separated and held in a substantially parallel relationship by a “spacer” positioned along the perimeter of each of the glass panes. The spacer consists of a material shaped to maintain a set distance between the glass panes. One procedure used with spacers is to include a desiccant in the space enclosed within the panes and the spacer to prevent condensation or “fogging.” Accordingly, the claims of PPG Ohio’s ’916 patent, which issued in January 1993, are directed to a new spacer and spacer frame, as well as a method for making them, that use an adhesive containing a desiccant adhered to the spacer. Claim 1 is representative of the invention and reads as follows: A strip to be shaped into spacer stock for maintaining adjacent glass sheets of an insulating unit in a predetermined spaced relationship to one another, the strip comprising: an elongated flat bendable metal substrate having opposed major surfaces, at least one of the surfaces being fluid impervious, said substrate having a structural stability sufficient to maintain adjacent glass sheets in the fixed relationship when said substrate is shaped into the spacer stock; an elongated bead of fluid pervious adhesive adhered directly to one of said major surfaces spaced from edges of said substrate, said adhesive having structural stability less than the structural stability of said substrate; and a desiccant in said bead. ’916 patent, col. 6, 11. 27-42. Figure 2 of the patent provides a cutaway view of the claimed invention, wherein glass panes 14 are connected to a U-shaped spacer 20, which houses a bead of adhesive 26 containing a dessicant 28. Id., col. 3,11.45-63 & fig. 2. Lockformer first offered a machine for making IGU spacer frames for sale in 1995. When PPG asserted that Lockformer infringed the three aforementioned patents, Lockformer sought a declaratory judgment of noninfringement. After the filing of the suit, PPG conceded that there was no infringement and the case was dismissed. Lockformer and TruSeal, then aware of PPG’s patents, instructed one of their chemists to design around the patents by developing a desiccant matrix that was not adhesive and did not adhere to the closed spacer frame. As a result of their efforts, the two companies developed a new desiccant named RL-50 for use in their IGUs, and by May 1999, Lockformer had sold to Silver Line a roll-forming machine, R-LOCK, that made IGUs using RL-50. Nevertheless, PPG asserted that Lock-former, TruSeal, and Silver Line infringed PPG Ohio’s patents. Based on those threats, Silver Line later cancelled its order. Consequently, in October 1999, Lock-former again sued PPG in the district court, this time additionally alleging unfair competition, tortious interference with business relations, and antitrust violations. Lockformer also sought a declaratory judgment that PPG’s three patents were invalid, unenforceable, and not infringed. In response, PPG joined PPG Ohio, filed a cross-claim against TruSeal for infringement of the ’916 patent, and moved to dismiss Lockformer’s antitrust claims for lack of standing because Lockformer did not actually purchase or sell glass. Lock-former then added PPG Ohio as a defendant in an amended complaint and opposed PPG’s motion to dismiss the antitrust claims. District Judge David Coar granted in part and denied in part PPG’s motion to dismiss the antitrust claims. Lockformer Co. v. PPG Indus., Inc., No. 99-C-6799 (N.D.III. Sept. 27, 2000). The court also granted PPG’s motion to amend its pleadings to assert a compulsory counterclaim against Lockformer for infringement of the ’916 patent. In December 2000, Judge Coar conducted a Markman hearing. At the hearing, PPG conceded that Lockformer and TruSeal did not infringe the ’282 and ’944 patents. Lockformer accordingly moved for summary judgment of noninfringement, and PPG moved to dismiss the declaratory judgment action, with respect to those two patents for lack of subject matter jurisdiction. In April 2001, the parties agreed to settle and dismiss with prejudice Lockformer’s first eight non-patent claims. In August 2001, the court granted PPG’s motion to dismiss the declaratory judgment action as to the ’282 and ’944 patents, and it issued an opinion construing claim 1 of the ’916 patent. Lockformer Co. v. PPG Indus., Inc., No. 99-C-6799, 2001 WL 940555 (N.D.III. Aug. 15, 2001) (“Claim Construction Order”). Judge Coar interpreted the term “adhesive” “to require that the adhesive stick to the strip through the process of shaping it into spacer stock and fixing glass to the spacer.” Id., slip op. at 6, 2001 WL 940555. He stated that “there is nothing in Claim 1 requiring adhesive to be placed on the entire length of the yet-to-be-shaped strip.” Id., slip op. at 6-7, 2001 WL 940555. Judge Coar also stated that “[t]he metal strip must be longer than it is wide, planer [sic], and prevent fluid from passing through it [on] at least one of the flat sides.” Id., slip op. at 5, 2001 WL 940555. In September 2001, PPG filed a motion for partial summary judgment of validity and enforceability, and Lockformer filed a motion for partial summary judgment of invalidity, unenforceability, and noninfringement. The following year, however, the case was reassigned from Judge Coar to Judge Amy St. Eve, and, on March 21, 2003, the court granted PPG’s motion for partial summary judgment on the issues of validity and enforceability, finding that Lock-former had failed to satisfy its burden of proof as to either issue. On March 25, 2003, the court granted Lockformer’s motion for partial summary judgment of noninfringement. Judge St. Eve stated that claim 1 requires that an adhesive containing a desiccant be adhered to a flat metal strip, and she reasoned that because RL-50 is not an adhesive and because Lockformer’s machine applies RL-50 to a U-shaped strip, not a flat strip, Lockformer’s device did not infringe the ’916 patent. Summary Judgment Order, slip op. at 8-9. She discounted the testimony of PPG’s expert witness, Raymond Gallagher, as insufficient to create a genuine issue of material fact because he did not state when or how the desiccant matrix stuck to the spacer frame. Id. Instead, Judge St. Eve relied on the testimony of other witnesses that RL-50 was not an adhesive and did not stick to the metal strip. Id., slip op. at 8. The court later denied PPG’s motion for reconsideration and granted in part Lockformer’s bill of costs. PPG and PPG Ohio (collectively, “PPG”) now appeal from the summary judgment of noninfringement. Lockformer and TruSeal (collectively, “Lockformer”) initially filed a cross-appeal that has since been withdrawn. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION We review a district court’s grant of summary judgment without deference, reapplying the same standard used by the district court. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.Sd 1309, 1315 (Fed.Cir.1998). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). I. Infringement A determination of patent infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ..., then the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en bane) (citations omitted). Step one, claim construction, is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456. Step two, comparison of the claim to the accused device or method, requires a determination that every claim limitation or its equivalent is found in the accused device. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Those determinations are questions of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). A. “Adhesive” On appeal, PPG argues that the Gallagher testimony satisfactorily established a genuine issue of material fact whether Loekformer’s accused device contained an adhesive as required by the claims of the ’916 patent. It alleges that his statements that the desiccant matrix “stuck” to the substrate when he shook the IGU spacers were sufficient to require the court to submit the issue to a jury. PPG contends that the district court failed to draw inferences in its favor as nonmovant by rejecting that testimony and thus committed error by granting summary judgment of noninfringement based on the alleged lack of an adhesive in Lockformer’s accused device. Lockformer responds that Gallagher testified merely that the desiccant matrix did not rattle when the spacer was shaken. It contends that he did not state that the desiccant was adhesive or that it adhered to the spacer frame. Instead, Lockformer argues, PPG failed to meet its burden of proof because Gallagher did not testify that the RL-50 matrix remained “stuck” throughout the process of shaping the flat strip with the bead of adhesive into spacer stock and fixing glass to the spacer frame. Lockformer alleges that the court’s decision to grant summary judgment was properly based on the fact that Gallagher did not provide any testimony as to when or how the matrix “stuck” to the spacer frame. We agree with Lockformer that the court properly granted summary judgment of noninfringement because PPG failed to establish the existence of a genuine issue of material fact whether RL-50 was an adhesive that adhered to the spacer. The district court properly relied on declarations from several witnesses — namely, Randy Runyan, Louis Ferri, Gary Dickinson, and Kevin Zuege — that the TruSeal RL-50 desiccant matrix used in Lockformer’s IGUs was not an adhesive and does not stick to the metal substrate. The witnesses stated unequivocally in their declarations that the RL-50 desiccant did not stick to the metal frame and was thus not an adhesive. On the other hand, Gallagher’s deposition testimony does not create a genuine issue of material fact because it does not dispute that RL-50 is not an adhesive. At the Markman hearing, Gallagher testified during cross-examination as follows: Q: The desiccant that you observed being used on the Lockformer machine at the March 2000 inspection, did that adhere to the spacer frame which you saw? A: No, it did not. A: Excuse me, just for — you know, you had mentioned before about if there was some clarity needed. I need to have that question asked again. Would you mind repeating the question again? A: Did the matrix being used, did it adhere to the spacer? Yes. I need to correct myself on that. Q: So your first answer was incorrect? A: Yes, it did adhere. Q: And what do you mean when you say that it did adhere? A: That the matrix stuck to the metal substrate. Q: What do you mean when you say it stuck? A: That, in picking up the spacer and shaking it, it did not rattle around inside the spacer. (JA 1675-66) Thus, Gallagher testified simply that the RL-50 “stuck” to the spacer frame, or, in other words, was rendered physically immobile inside the frame. Although the Gallagher testimony may demonstrate that “RL-50 performed the function of the adhesive claimed by the ’916 patent,” Appellants’ Opening Br. at 42, Gallagher never states that RL-50 is, in fact, an adhesive. Gallagher’s mere observation that the desiccant matrix “did not rattle around inside the spacer” cannot be construed to be an assertion that the desiccant is an adhesive or that it adheres to the spacer frame. In sum, the district court acknowledged that PPG was “entitled to all reasonable inferences in its favor,” Summary Judgment Order, slip op. at 8, and properly concluded that PPG nevertheless did not present sufficient evidence to meet its burden of producing evidence that shows that there is a disputed fact whether RL-50 is an adhesive. B. “Flat” PPG also argues that the district court erred as a matter of law by requiring that the RL-50 desiccant matrix be applied to a flat strip. It alleges that Judge St. Eve misconstrued the claim construction order issued previously by Judge Coar, which PPG argues stated that claim 1 of the ’916 patent imposes no limitation on when the adhesive bead must be applied relative to the forming of the spacer frame. PPG contends that Judge St. Eve improperly “redrafted” the claim to import the word “flat” from the preamble to modify the “strip” limitation. PPG maintains that the claim was drafted to refer not only to the beginning of the forming process, but also throughout the entire process of shaping the substrate into spacer stock. It thus asserts that the claim permits the application of an adhesive bead even after the metal substrate was formed into a U shape. Lockformer responds that Judge Coar correctly interpreted the claim to require the metal strip to be flat and that Judge St. Eve properly applied that construction. It argues that the claims of the ’916 patent recite a strip to be shaped into spacer stock and that the claims are limited to a flat metal strip. Because its accused machine roll-forms the strip and applies the desiccant material while the strip is approximately U-shaped, Lockformer argues, the court correctly found that Lockformer does not infringe the ’916 patent. We agree with Lockformer that the district court properly construed the claim to require application of the adhesive desiccant to a flat metal strip. Our analysis begins with the language of the claim itself. The claim states that the invention comprises “an elongated flat bendable metal substrate.” Also, the preamble recites, “A strip to be shaped into spacer stock,” which indicates that the claimed strip has not yet started the roll-forming process. Those portions of the claim support Judge Coar’s construction that “[t]he metal strip ... be ... planer [sic],” a construction that apparently met with agreement from both parties at the time. Claim Construction Order, slip op. at 5. The specification further supports the construction that the strip must be flat when the adhesive is applied. For example, the “Summary of the Invention” reads as follows: This invention covers a strip for shaping into spacer stock for use in the fabrication of insulating units. The strip includes a metal substrate having a bead of moisture and/or gas pervious adhesive secured to a surface of the substrate. The metal substrate after forming into the spacer stock, e.g., U-shaped spacer stock can withstand higher compressive forces than the bead. ’916 patent, col. 2, II. 18-24 (emphases added). This passage reinforces the district court’s interpretation that the “claim covers metal stock that will be formed into multi-pane window spacers.” Claim Construction Order, slip op. at 5 (emphasis added). Additionally, the figures illustrate that the desiccant is adhered to the substrate when flat and the substrate subjected to the roll-forming process after adhesion. Figure 3 of the ’916 patent shows the applied adhesive bead 26 on a flat metal substrate 40 prior to the forming process. The written description later provides that “[t]he substrate 40 having the bead 26 is advanced from left to right as viewed in FIG. 4 between roll forming stations 180 thru 185.” Id., col 4, II. 56-58. Id., fig. 3. Furthermore, Figure 5 shows a roll forming station 181 that facilitates the bending of the flat substrate 40 with the adhesive bead already in place. Id., col. 4, II. 61-65 & fig. 5. In contrast, Lockformer’s machine starts with a flat strip, roll-forms the strip into a U-shaped form, and only then inserts the desiccant material into the frame. We conclude that the district court properly construed the claim to require a flat substrate. The court then correctly applied that construction in concluding that Lockformer’s accused device does not infringe the ’916 patent because its strip is not flat when the RL-50 desiccant is applied. Because Lockformer’s accused device incorporating RL-50 does not meet all of the limitations of the ’916 patent claims, including the “adhesive” and “flat substrate” limitations, the court properly granted summary judgment of noninfringement. II. Costs

10509871-26099

PATRICK E. HIGGINBOTHAM, Circuit Judge: Paul D. Broussard was convicted by a jury in the Western District of Louisiana of possession with intent to distribute marijuana, contrary to 21 U.S.C. § 841(a)(1), (b)(1)(D), and knowingly using and carrying firearms during and in relation to a drug trafficking offense contrary to 18 U.S.C. § 924(c)(1). Armed with a search warrant issued by a state magistrate, officers searched Brous-sard’s mobile home in Lafayette, Louisiana. The search uncovered a small marijuana growing operation and three guns, a Colt Ar-15 assault rifle, a Mossberg sawed-off 20 gauge shotgun with a pistol grip, and a Sig Sauer P220 .45 caliber pistol. After Miranda warnings, Broussard made a number of incriminating admissions to the arresting officers. At trial, Broussard objected to the court’s refusal to peremptorily strike two females. Broussard accepted the first woman on the venire but challenged the second. Without objection from the government, the judge responded that she was a member of a protected class and counsel must state a reason for his challenge. After counsel said she was a teacher and he did not want too many teachers on the jury, the judge demanded a “good reason ... a reason why you feel in her responses she could not be fair and impartial.” The court nevertheless allowed the challenge and excused the juror. Counsel for Broussard accepted the third woman but then objected to the fourth on the grounds that she was a teacher and had a relative who was a policeman. The court denied the challenge. The fifth woman was accepted and counsel for Broussard objected to the sixth based on her demeanor. The court again denied the challenge. The final jury consisted of 9 females and 3 males, the court having denied Broussard’s attempt to exercise two peremptory challenges against women. Broussard argues that his conviction should be reversed for any of four reasons. First, he urges that the district court erred in applying Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to his peremptory challenge of two female venirepersons. This argument has two parts: the doctrine does not apply to gender-based discrimination, and if it does, the district court erroneously required that he give sufficient reasons for cause rather than accepting any rational gender-neutral reason. Second, Broussard argues the warrant authorizing the search of his mobile home was not supported by an adequate affidavit. Third, the court erred in refusing his requested jury instruction regarding the required connection between the drug offense and his gun possession. Fourth, Broussard asserts error in denying a reduction for acceptance of responsibility. We are persuaded that Batson should not be extended to gender-based discrimination and that in any event the court misapplied the doctrine by insisting on more than gender-neutral explanations for the peremptory challenges. We reverse the conviction for these two reasons and remand for a new trial. In doing so, we reject the government’s contention that the harmless error doctrine is applicable. Because we remand and the remaining contentions are likely to remain issues at a second trial, we also examine Broussard’s arguments regarding the search, instructional error, and errors in sentencing. Of course, that the sentencing issue will not arise if Broussard is acquitted is not a suggestion regarding the likelihood of conviction, but is rather, an expression of the probability of encountering the issues should the ease play through conviction, a second time. This is both the product of our unwillingness to address hypothetical questions and responsibility for conserving judicial resources, ours and the district court’s. I. A. Batson and Gender The Supreme Court attempted to accommodate the command of equal protection and the tradition that peremptory challenges were an important element of fair trials, although without independent constitutional protection, in Swain v. Alabama, 880 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965). Swain, a black man, argued a violation of the Equal Protection Clause based on the prosecution’s use of peremptory challenges to eliminate all blacks from his venire and the fact that no black had served on a Talledega County petit jury in 15 years. After examining the “very old credentials" of the peremptory challenge and its importance to the fairness of our trial system, the Court concluded that purposeful discrimination was not established from the striking of all minorities from the venire in a given case. The Court explained that “[i]n light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case.” Id. at 222, 85 S.Ct. at 837. However, purposeful discrimination could be proved by trailing peremptory challenges over cases. With the pattern of strikes across cases, there emerges ' brightly an otherwise evanescent line between the intuit of trial counsel striking for the best jury for her client and indefensible bigotry. In Batson, the Court reexamined this balance. After 20 years of experience under Swain, the Court relaxed the burden of proving purposeful racial discrimination by allowing its proof in a given case by requiring counsel to articulate race-neutral reasons for a challenged peremptory of a black venireperson. The Court was careful that its rule not “undermine the contribution the challenge generally makes to the administration of justice.” 476 U.S. at 98-99, 106 S.Ct. at 1724. Batson does not say, yet, its found impetus was undeniably more than analogical reasoning and more than a felt moral imperative independent of constitutional command. Batson’s move from Swain rested on a recognition that race lies at the core of the commands of the Fourteenth Amendment. 476 U.S. at 83-85, 106 S.Ct. at 1716. This sense that race is different from other classifications has long generated difficulties in the treatment of other groups clamoring for identical protection. For the most part, they have not been successful. More to the point, gender as a classifier failed to achieve the protection of a suspect class with its high level of scrutiny. Rather, the Court has found that gender classes trigger only an intermediate level of scrutiny, a protected class but with lesser protection than race. Mississippi University for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976). At one level, our question is the balance between the command of equality and fair trial. See McCollum, — U.S. at- -, 112 S.Ct. at 2357-58 (balancing the interests served by Batson with the criminal defendant’s right to a fair trial). Narrowed to the case at hand, our focus is on peremptory challenges in a specific case and not across cases, so our specific issue is whether we ought with gender to step-up from Swain to Batson. Two circuits have given opposite conclusions. Compare United States v. De Gross, 960 F.2d 1433 (9th Cir.1992) (en banc) (extending Batson to gender) with United States v. Hamilton, 850 F.2d 1038 (4th Cir.1988) (declining to do so); see also United States v. Nichols, 937 F.2d 1257, 1262 (7th Cir.1991) (arguably deciding that Batson does not apply to gender). The state courts are divided two against one for the position that Batson should not be extended to gender. Compare State v. Culver, 233 Neb. 228, 444 N.W.2d 662 (1989) and State v. Oliviera, 534 A.2d 867 (R.I.1987) (refusing to apply Batson to gender) with People v. Irizarry, 165 A.D.2d 715, 560 N.Y.S.2d 279 (1990) (extending Batson to gender). The Ninth Circuit in De Gross saw the issue in terms antithetical to the .idea that litigant choice enhances the perceived fairness of a petit jury to the public good. In that court’s view “full community participation in the administration of the criminal justice system, whether measured by race or gender, is critical to public confidence in the system’s fairness.” 960 F.2d at 1439. We see this view as begging the essential question of “full” participation, a question answerable only by consideration of the interests in fair trial served by the system of peremptory challenges. The unique history of racial discrimination aside, full community participation in the justice system is not disserved by the centuries old system of strikes. The entire process of jury selection is studiously random — random in the math sense. Full participation can only mean random selection because all cannot serve. Peremptory challenges in the absence of ties across cases is part of that process of randomness. In equal protection terms, the contributions to a perception of fairness in the petit jury of peremptory challenges is an important governmental interest. See Batson, 476 U.S. at 98, 106 S.Ct. at 1724 (recognizing “that the peremptory challenge occupies an important position in our trial procedures”). That interest would be frustrated by extending Batson to gender because it would require, on demand of counsel, an explanation for every strike. It is true that the explanation would need to be only a non-gender rooted reason. In the real world of trials, facing an explanation for every challenge is a practical frustration of perempto-ries. See Holland, 493 U.S. at 484, 110 S.Ct. at 809 (rejecting application of'Sixth Amendment fair-cross section principles to petit jury to avoid the effective “elimination of peremptory challenges”). It has been said that peremptory challenges cannot lie with equal protection principles. In an important sense this is not so. All venirepersons are subject to the arbitrary dismissal of counsel for both sides. As Swain recognized, the inequality surfaces when the choices are across cases. 380 U.S. at 223-24, 85 S.Ct. at 837-38. When race controls peremptory challenges across cases, blacks are no longer equally subject to the randomness of peremptory challenges. Rather, blacks were singled out because of their race. This view of peremptory challenges, as a subset of a larger and random process, as not presenting equal protection issues at all in a discrete case was rejected in Batson, at least for race. This especial condemnation of racial criteria is in part reflective of its high level of protection enjoyed under the two-tiered construct of equal protection, or even under Justice Marshall’s preferred sliding scale. Simply put, gender discrimi nation and racial discrimination are different in relevant ways. More to the point, apart from race, there is no case for the step-up from Swain to Batson. Women are not a numerical minority and therefore do not face similar barriers to full jury participation. That women are not numerical minorities looms large because the focus of Batson is upon selecting a petit jury from a randomly chosen venire. This means that striking women, or men, for the sole reason of their sex is nigh pointless because it cannot succeed except in isolated cases. This case illustrates the point. The district judge’s intervention to protect this “protected class” of female venirepersons added two females, at best, to the seven females that otherwise would have served. Nine of the twelve jurors who decided this case were women. If the bias is sex alone, its implementation is chilled by the numbers, by the reality that not only will women nonetheless be on the jury, albeit perhaps in lesser number, so also will there be jurors not wanted for other reasons left on the jury because the strikes were spent in a sexist way. Suffering the other unwanted jurors might be a payable price if determined counsel could either eliminate all women or cut their number to one or two. It is a foolish price for the bigot when the result, as in this case, would be a jury that nonetheless had a substantial number of female jurors. We are persuaded that Swain is a sound accommodation of the interests of fair trial and interests in selection free of gender bias. Experience has not taught us that Swain is inadequate for gender. This is critical because it was experience and functional necessity—not analogical reasoning that decided Batson and in our view ought to decide this case. With all deference to our sister court, the assertion in De Gross of historical exclusion of women from jury service misses the mark. We will not here rehearse the differences between race and gender reflected in their differing levels of scrutiny under the equal protection clause. We must, however, decry general invocations of historical discrimination against women; they are not fully responsive to the assertion that no- case for extending Batson to gender has been made. For example, the string citation to Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), ignores the political reality that the Supreme Court did not strike down the offending provision of the Louisiana code. It was repealed—hardly an example of political powerlessness. It is true that women were excluded from jury service under the English common law and were disqualified by state laws until the end of the 19th Century. It is also the case, however, as Justice White observed in 1974 that “... [tjoday, women are qualified as jurors in all the states” id. at 533, 95 S.Ct. at 699. Relatedly, it was the Congress that in 1957 assured that women could not be excluded from federal jury service. Civil Rights Act of 1957, 71 Stat. 638, 28 U.S.C. § 1861 (1964 ed.). Batson is a prophylactic device reached for in response to demonstrated need. Experience has not demonstrated a similar and sufficient need for its use with gender. The evidence is not there and is virtually certain not to be, so long as the venire is randomly chosen. B. Assuming Batson is applied to gender based peremptory challenges, the district court nevertheless misapplied the doctrine by insisting on more than gender-neutral explanations for the defendant’s challenges. See also Georgia v. McCollum, — U.S.-, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (applying Batson to a criminal defendant’s use of peremptory challenges). Once a 'prima facie case of discrimination is shown, Batson requires counsel to justify each challenge with a race-neutral explanation. 476 U.S. at 96-98, 106 S.Ct. at 1723; Hernandez v. New York, — U.S. -, -, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). Thus, if Batson were extended to this case, we would insist on a gender-neutral reason. From the trial transcript, it is clear that the district judge placed a more difficult burden on counsel for Broussard. The judge insisted on a good reason for believing the challenged juror could not be impartial. This is the standard required to exercise a challenge for cause. See Batson, 476 U.S. at 96-98, 106 S.Ct. at 1723 (“we emphasize that [counsel’s] explanation need not rise to the level justifying exercise of a challenge for cause”). C. The government agrees that Batson should not apply to gender and, assuming we were to extend the doctrine, concedes error in the district court’s application. However, the government urges us to affirm under the doctrine of harmless error. We can not accept this invitation. The denial or impairment of the right to exercise peremptory challenges is reversible error without a showing of prejudice. Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965); Knox v. Collins, 928 F.2d 657, 661 (5th Cir.1991). Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), does not support the application of harmless error. In that case, the trial court erroneously refused to excuse a juror for cause and state law required the defendant to exercise a peremptory challenge against that juror to preserve the issue for appeal. The combination of the trial court’s error and state law effectively denied the defendant the use of one peremptory challenge. The Court, however, found no violation of the defendant’s right to an impartial jury under the Sixth and Fourteenth Amendments, because the juror who should have been dismissed for cause did not sit and there was no showing that the jurors who actually sat were partial. The Court also stated that “the ‘right’ to peremptory challenges is ‘denied or impaired’ only if the defendant does not receive that which state law provides.” Id. at 89, 108 S.Ct. at 2279. In United States v. Prati, 861 F.2d 82, 87 (5th Cir.1988), we characterized Ross as setting forth the standard for assessing the effect of an increase or decrease in the number of peremptory challenges caused by a trial court’s erroneous ruling on a challenge for cause. Here, we are not dealing with the impact of an erroneous ruling on a challenge for cause on peremptories, but an erroneous ruling with regard to peremptory challenges themselves. Applying the doctrine in this context would eviscerate the right to exercise peremptory challenges, because it would be virtually impossible to determine that these rulings, injurious to the perceived fairness of the petit jury, were harmless. II. Broussard argues that the district court should have granted his motion to suppress the evidence found in his mobile home, because the warrant authorizing the search was not supported by an adequate affidavit. In other words, the warrant affidavit did not detail probable cause. We recently discussed the minimum requirements for a warrant affidavit in United States v. Satterwhite, 980 F.2d 317, 320-21 (5th Cir.1992). Under the good faith exception to the exclusionary rule, evidence obtained by law enforcement officials acting in objectively reasonable good faith reliance upon a search warrant is admissible. United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 3420-21, 82 L.Ed.2d 677 (1984). However, an official can not claim objective good faith where the warrant is “based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Leon, 468 U.S. at 923, 104 S.Ct. at 3420 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265-66, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part)); see also United States v. Craig, 861 F.2d 818, 821 (5th Cir.1988) (referring to this type of affidavit as a “bare bones” affidavit). We have said that “bare bones” affidavits “contain wholly conclusory statements, which lack the facts and circumstances from which a mag istrate can independently determine probable cause.” Satterwhite, 980 F.2d at 320-21. We must examine the “totality of the circumstances.” Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527 (1983). This includes all of the facts in the affidavit, including the informant’s veracity, reliability, and basis of knowledge. United States v. Jackson, 818 F.2d 345, 348, 350 n. 7 (5th Cir.1987). The affidavit supporting the warrant in this case relies on an unnamed cooperating individual in the first paragraph: During the past several days a cooperating individual who is known by affiant to be familiar with marijuana cultivation techniques told the affiant that marijuana was being cultivated in the above described trailer which belongs to Paul D. Broussard, W/M, DOB 11/09/52. Cooperating individual further advised affi-ant marijuana and cultivation equipment had been seen at the location within the past two months. The Cl said that Paul D. Broussard had been cultivating marijuana since 1989 Hydroponically. In addition to this information from the Cl, the affidavit includes other corroborating facts: Broussard’s electricity usage doubled in June 1991, and he did not inquire with the electric company. June is the height of the marijuana growing season, and it takes large amounts of electricity to use indoor growing equipment. Broussard did not have a job. All of the windows in Broussard’s trailer were blacked out. Broussard seldom left his trailer. Occupants of Broussard’s residence purchased Hydroponic gardening equipment in 1989. A “Thermal Imaging” device, although not conclusive, indicated more intense heat being emitted from Broussard’s mobile home than others in the area. As the government acknowledges, this affidavit says very little about the informant’s veracity, reliability, and basis of knowledge. It does say that the Cl “is known by affiant to be familiar with marijuana cultivation techniques,” which goes to the informant’s reliability. The basis for the informant's knowledge, however, is not given. The affidavit simply says “marijuana and cultivation equipment had been seen” at Broussard’s house. We do not know whether the Cl had first hand knowledge or whether he was relying on a third person. Significantly, the affidavit does not rely completely on the information from the CL These other corroborating facts—electricity, blackened windows, thermal imaging,— considered with the information from the Cl provide sufficient evidence of probable cause. There is more here than in the “bare bones” affidavits involved in Jackson and United States v. Barrington, 806 F.2d 529 (5th Cir.1986). In Jackson, the informant was himself involved in the crime and his reliability was not established by corroboration. 818 F.2d at 348. In Barring-ton, the affidavit simply said the officer “received information from a confidential informant” who is “known to [the officer] and has provided information in the past that has led to arrest and convictions.” 806 F.2d at 531. We conclude that Brous-sard’s motion to suppress was properly denied. III. In his third assignment of error, Brous-sard argues that the district court erred in refusing his requested jury instruction for the offense of using or carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). He does not challenge the sufficiency of the evidence to support this conviction. Of course, that argument may be available on appeal if Broussard is convicted on remand. Here, Broussard argues that the trial court’s instruction, which was based on the Fifth Circuit Pattern Jury Instructions § 2.45, impaired his ability to argue his defense to the jury. His defense focused on the “during and in relation to” language of the statute. That is, Broussard admitted possession but contested the fact that he used or carried the guns during and in relation to the drug offense. When a district court refuses to include a requested instruction, the party requesting the instruction must show that the rejected instruction: “1) was substantially correct; 2) was not substantially covered in the charge delivered to the jury; and 3) concerned an important issue so that the failure to give it seriously impaired the defendant’s ability to present a given defense.” United States v. Duncan, 919 F.2d 981, 990 (5th Cir.1990); United States v. Terrazas-Carrasco, 861 F.2d 93, 95 (5th Cir.1988). The language Broussard requested was substantially covered in the charge given. Moreover, the instruction on § 924(c)(1) included this sentence: “However, you must be convinced beyond a reasonable doubt that the firearm played a role in or facilitated the commission of a drug trafficking crime.” This passage belies Broussard’s claim that he was precluded from arguing his defense to the jury. The district court’s failure to include Brous-sard’s language did not seriously impair his ability to present his defense. Broussard also claims that the language he requested was necessary to clear up any confusion that may have resulted from the court’s instruction on “possession” in the context of the possession with intent to distribute offense, which the court read just before the charge on § 924(c)(1). Broussard says the court’s instruction may have lead the jury to believe that mere possession of a firearm was sufficient to convict under § 924(c)(1). We see no possibility for confusion. The court’s explanation of possession came at the beginning of the instructions, before the § 924(c)(1) charge. It was also clear that § 924(c)(1) is a separate offense. During oral argument, Broussard raised the fact that the district court omitted the word “integral” from the Fifth Circuit pattern jury instructions which provide that the jury “must find that the firearm was an integral part of the drug offense charged.” See Fifth Circuit Pattern Jury Instructions § 2.45. The court’s instruction was adequate. See United States v. Caldwell, 985 F.2d 763, 765-66 (1993) (noting that a firearm need not play an “integral role” to violate § 924(c)). IV. Finally, Broussard asserts error in his sentencing. He argues that the district court erred in denying him a reduction for acceptance of responsibility. Broussard offered to plead guilty to both counts if he could preserve his right to appeal the motion to suppress, but the government refused. The trial court refused to award acceptance of responsibility, apparently agreeing with the government’s objection that Broussard had not accepted responsibility for the conduct alleged in Count 2, the § 924(c)(1) offense, citing United States v. Mourning, 914 F.2d 699, 705 (5th Cir.1990). U.S.S.G. § 3El.l(b) provides that a defendant may receive the reduction whether he pleads guilty or goes to trial. Application Note 2 states “[t]his adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” Note 2 also provides that conviction by trial does not automatically preclude the reduction. In rare circumstances, a defendant may accept responsibility even though he goes to trial. According to Note 2, these circumstances may exist where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt, such as a constitutional challenge to a statute or to the applicability of the statute to his conduct.

3891401-28523

OPINION BARLOW, District Judge. In a telegram dated May 4th, 1976, the defendant Miller Brewing Company attempted to sever its contractual relationship with the plaintiff, Carlo C. Gelardi Corp. The plaintiff commenced this action on May 5th, 1976, alleging violations of certain provisions of the antitrust laws of the United States by Miller, three employees of Miller, and an unspecified number of unidentified co-conspirators. The complaint also alleged that Miller breached a distributorship agreement with the plaintiff. On May 7th, the plaintiff filed an amended complaint alleging violations of the New Jersey Franchise Practices Act, N.J.Stat.Ann. § 56:10-1, et seq. On that same day, this Court signed an order to show cause and entered an order temporarily restraining Miller from discontinuing the sale of beer products to the plaintiff. In an opinion dated May 27th, 1976, this Court concluded that the plaintiff had demonstrated a reasonable probability of eventual success on the merits with respect to the question of the applicability of the Franchise Practices Act. As a result, the Court issued a preliminary injunction on May 28th, 1976, directing Miller to comply with the notice provisions of the Act, id. § 56:10-5 (hereinafter “Section 5”). This decision required Miller to wait at least sixty (60) days from May 4th, 1976, before effectuating its intention to terminate the plaintiff’s franchise. On June 1st, 1976, the plaintiff filed the instant motion for a preliminary injunction, seeking to prevent Miller from terminating the franchise arrangement upon the expiration of these sixty (60) days. The narrow question presented in the earlier motion for a preliminary injunction was whether the Franchise Practices Act applied, so as to require sixty (60) days’ notice prior to the termination of the plaintiff’s franchise. The opinion issued in response to that motion is now the law of the case, and is hereby incorporated into this opinion. The current motion, however, involves a more difficult question — whether Miller, having already given the sixty (60) days’ notice, is legally entitled to terminate the plaintiff’s franchise. The plaintiff asserts that Miller is not entitled to terminate the franchise, and advances six legal theories in support of this contention. The Court must now consider whether the plaintiff has demonstrated a reasonable probability of eventual success on the merits with respect to any of these theories. See Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975); Delaware River Port Authority v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 919-20 (3d Cir. 1974); Winkleman v. New York Stock Exch., 445 F.2d 786, 789 (3d Cir. 1971). The following arguments have been advanced by the plaintiff in support of its motion: (1) Miller’s allocation of beer products is an unreasonable restraint of trade, in violation of the Sherman Act, 15 U.S.C. § 1; (2) Miller’s establishment of a dual distributorship in the plaintiff’s area of primary responsibility manifests a conspiracy to force the plaintiff out of business, in violation of the Sherman Act, id. §§ 1, 2; (3) Miller’s entire course of conduct toward the plaintiff manifests a conspiracy to force the plaintiff out of business, in violation of the Sherman Act, id.; (4) Miller’s terms of sale to the plaintiff constitute price discrimination, in violation of the Clayton Act as amended by the Robinson-Patman Act, id. § 13(a); (5) Miller is attempting to terminate the plaintiff’s franchise without good cause, in violation of § 5 of the New Jersey Franchise Practices Act; and (6) Miller has imposed unreasonable standards of performance upon the plaintiff, in violation of § 7(e) of the Franchise Practices Act, N.J.Stat. Ann. § 56:10-7(e). The plaintiff’s first contention must fail on the present record. “Essential to the violation of the antitrust laws is an agreement or combination, the purpose and effect of which is restraint of trade and suppression of competition.” See Viking Theatre Corp. v. Paramount Film Distrib. Corp., 320 F.2d 285, 293 (3d Cir. 1963), aff’d, 378 U.S. 123, 84 S.Ct. 1657, 12 L.Ed.2d 743 (1964); Martin B. Glauser Dodge Co. v. Chrysler Corp., 418 F.Supp. 1009, at 1015 (D.N.J.1976); Kaiser v. General Motors Corp. (Pontiac Motor Div.), 396 F.Supp. 33, 38 (E.D.Pa.1975). Whatever the merits of plaintiff’s argument that the Miller allocation system is an unreasonable restraint of trade, there is no evidence to indicate that the allocation system is the result of a contract, combination, or conspiracy, as re quired by § 1 of the Sherman Act. Indeed, the plaintiff’s own briefs suggest that Miller alone is responsible for the creation and implementation of the allocation system: There is no binding contractual requirement that Miller allocate beer in this manner. This has been a procedure adopted in Miller’s sole discretion. Miller can determine to provide beer to a distributor even though he had no record in the prior year . . . . Further, Miller, in its sole discretion, can determine to deliver beer to some distributors in amounts which vary from a strict application of the ‘allocation’ formula. Brief for the Plaintiff at 12. The plaintiff has not cited, nor has this Court been able to find, anything in the present record to suggest that any of Miller’s distributors have participated in or influenced the creation or implementation of the allocation system. The only participants revealed by the record are the various Miller employees necessary to implement the allocation program. However, there must be a plurality of actors to contract, combine, or conspire to restrain trade in violation of § 1 of the Sherman Act, and it is well-settled that the required plurality is not supplied by a combination of a corporation and its employees. See Goldlawr, Inc. v. Shubert, 276 F.2d 614, 617 (3d Cir. 1960). See also Morton Bldgs, of Neb., Inc. v. Morton Bldgs., Inc., 631 F.2d 910, 917 (8th Cir. 1976); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 82-84 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970); Higbie v. Kopy-Kat, Inc., 391 F.Supp. 808, 810 (E.D.Pa.1975); Quigley v. Exxon Co., 376 F.Supp. 342, 350 (M.D.Pa. 1974); Goldinger v. Boron Oil Co., 375 F.Supp. 400, 406 (W.D.Pa.1974), aff’d, 511 F.2d 1393 (3d Cir. 1975). The plaintiff’s second and third contentions allege that the defendants and others conspired to eliminate the plaintiff as a beer distributor in interstate commerce, and that the following steps were taken to consummate said conspiracy: (a) Miller established a dual distributorship in the plaintiff’s area of primary responsibility; (b) Miller refused to extend to the plaintiff the normal credit extended to other distributors in New Jersey, either for regular shipments of beer or to build up inventory prior to the peak season; (c) Miller required the plaintiff to pay for beer in advance of delivery; (d) Miller imposed an arbitrary order and payment schedule on the plaintiff and required strict adherence to the schedule; (e) Miller rerouted the shipments of beer to the plaintiff, causing delays in receipt; and (f) Miller interfered with the plaintiff’s merger negotiations with Warren Distributing Co. The plaintiff asserts that this conspiracy is in violation of §§ 1 and 2 of the Sherman Act. Assuming, arguendo, that the alleged conspiracy existed, it does not appear that the plaintiff will be able to show that its object was one rendered illegal by § l. The fact that Miller’s actions had an adverse impact upon the plaintiff’s business does not, by itself, amount to a violation of the Sherman Act. Damage alone does not constitute liability under the Act. See Ace Beer Distribs., Inc. v. Kohn, Inc., 318 F.2d 283, 287 (6th Cir.), cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 166 (1963). A conspiracy which results merely in the substitution of one distributor for another does not violate § 1. See Craig v. Sun Oil Co., 515 F.2d 221, 223 (10th Cir. 1975). See also Bowen v. New York News, Inc., 522 F.2d 1242, 1254 (2d Cir. 1975), cert. denied, 425 U.S. 936, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976); Ark Dental Supply Co. v. Cavitron Corp., 461 F.2d 1093, 1094 (3d Cir. 1972); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., supra, 416 F.2d at 78; V. & L. Cicione, Inc. v. C. Schmidt & Sons, Inc., 403 F.Supp. 643, 648-49 (E.D.Pa. 1975) . Nor is an increase in the number of distributors actionable under § 1. See Craig v. Sun Oil Co., supra, 515 F.2d at 223. The elimination of the plaintiff’s distributorship would violate § 1 only if, in fact, it constituted a restraint of trade or was motivated by an anti-competitive intent. See V. & L. Cicione, Inc. v. C. Schmidt & Sons, Inc., supra, 403 F.Supp. at 649. See also Continental Distrib. Co. v. Somerset Importers, Ltd., 411 F.Supp. 754, 756 (N.D.Ill. 1976) ; Beaute Craft Supply Co. v. Revlon, Inc., 402 F.Supp. 385, 387-88 (E.D.Mich. 1975); cf. Fray Chevrolet Sales, Inc. v. General Motors Corp., 536 F.2d 683, 686 (6th Cir. 1976); Morton Bldgs, of Neb., Inc. v. Morton Bldgs., Inc., supra, 531 F.2d at 917; Dreibus v. Wilson, 529 F.2d 170, 172 (9th Cir. 1975); Westinghouse Elec. Corp. v. CX Processing Labs., Inc., 523 F.2d 668, 673 (9th Cir. 1975). In this case, even if there had been an agreement between Miller and Warren to eliminate the plaintiff’s distributorship and to replace it with the Warren distributorship, the plaintiff could not prevail on its § 1 claim absent proof of an anti-competitive purpose or a resulting restraint of trade. This Court is not convinced that that proof will be forthcoming. Before there can be a conclusion as to whether there has been a restraint of trade, a determination must be made as to what is the relevant market within which to gauge a firm’s power or the effects of its activities. See Coniglio v. Highwood Servs., Inc., 495 F.2d 1286, 1292 (2d Cir.), cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974); American Aloe Corp. v. Aloe Creme Labs., Inc., 420 F.2d 1248, 1256 (7th Cir.), cert. denied, 398 U.S. 929, 90 S.Ct. 1820, 26 L.Ed.2d 91; 400 U.S. 820, 91 S.Ct. 37, 27 L.Ed.2d 47 (1970). The relevant market is comprised of a geographic and a product market. See Morton Bldgs, of Neb., Inc. v. Morton Bldgs., Inc., supra, 531 F.2d at 918. The geographic market encompasses the area in which the defendant effectively competes with other individuals or businesses for the distribution of the relevant product. Id. The relevant product market is composed of products that have reasonable interchangeability for the purposes for which they are produced— price, use and qualities considered. See United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 395, 404, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); Yoder Bros., Inc. v. California-Florida Plant Corp., 537 F.2d 1347, 1366-67 (5th Cir. 1976); Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1349 (3d Cir. 1975). While the relevant market for purposes of section 2 is not necessarily that for purposes of section 1, there still must be some consideration of the effect of a defendant’s conduct on some significant part of the market. George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 508 F.2d 547, 562 (1st Cir. 1974), cert. denied, 421 U.S. 1004, 95 S.Ct. 2407, 44 L.Ed.2d 673 (1975) (emphasis added). The current record fails to present adequate probative evidence bearing upon the relevant product market. Certainly we are not prepared to say that Miller beer products are so unique that they constitute a product market in themselves. The plaintiff has not sufficiently identified what types of beer are reasonably interchangeable substitutes for Miller beer products within the appropriate area of competition. There is an absence of market data, figures, or other relevant material adequately describing the nature, cost, usage, or other comparative features of competing prod ucts. In the absence of such proof, courts are incapable of determining the extent of cross-elasticity of demand in the market. Even if the relevant market had been adequately defined, there is no evidence that the beer of other breweries was any less available in Middlesex and Somerset counties as a result of the actions of Miller and Warren. There is no evidence whatever of harm to general competition in the market. There is nothing to indicate that the number of competitors has been affected, or that the market has been fixed or manipulated, so that competition is lessened. In conclusion, the plaintiff has failed to establish a prima facie case of either a per se violation of § 1 or a violation of the “rule of reason”. Accordingly, no preliminary injunction can be based on the § 1 aspects of plaintiff’s second and third contentions. Turning to the charges under § 2 of the Sherman Act, it should first be noted that that section specifies three separate offenses: monopolization, attempt to monopolize', and conspiracy to monopolize. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 709, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); Mt. Lebanon Motors, Inc. v. Chrysler Corp., 283 F.Supp. 453, 460 (W.D.Pa.1968), aff’d, 417 F.2d 622 (3d Cir. 1969). The plaintiff’s second and third contentions apparently rely on the latter two offenses. The essential elements of an “attempt to monopolize” are that the actor have (1) a specific intent to monopolize the relevant market and (2) sufficient market power to come dangerously close to success. See Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 49 L.Ed. 518 (1905); Yoder Bros., Inc. v. California-Florida Plant Corp., supra, 537 F.2d at 1368; Coleman Motor Co. v. Chrysler Corp., supra, 525 F.2d at 1348; Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 207 (5th Cir. 1969). It is obvious that definition of the relevant market is critical to the proof of these two elements, and thus of a § 2 violation. See Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 177, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965); Coleman Motor Co. v. Chrysler Corp., supra 525 F.2d at 1348. As we pointed out in our discussion of the plaintiff’s § 1 claims, the plaintiff has failed to submit any evidence from which this Court could determine the relevant product market. Given this Court’s own knowledge of the state of the national beer market, it does not seem likely that the plaintiff will be able to establish that the relevant product market consists of Miller products alone. If the relevant market is all beer in Middlesex and Somerset counties, Miller could not monopolize that market by driving the plaintiff out of business — competition from the beer of other breweries would severely limit Miller’s ability to determine prices. Since there is nothing in the record to indicate that Miller’s conduct, even if it resulted in eliminating intra-brand competition, could achieve a monopoly, Miller cannot be held liable for having attempted to monopolize. The essential element of a “conspiracy to monopolize” is a specific intent to monopolize a designated segment of commerce. See Bowen v. New York News, Inc., supra, 522 F.2d at 1258; Salco Corp. v. General Motors Corp., Buick Motor Div., 517 F.2d 567, 576 (10 Cir. 1975); Hudson Valley Asbestos Corp. v. Tougher Heating & Plumbing Co., 510 F.2d 1140, 1144 (2d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2416, 44 L.Ed.2d 679 (1975); Harlem River Consumers Cooperative, Inc. v. Associated Grocers of Harlem, Inc., 408 F.Supp. 1251, 1285 (S.D.N.Y.1976). Although specific intent to monopolize, and not monopoly power, is the essential element, the absence of any likelihood of success is certainly some evidence on the question of whether such specific intent existed. See Hudson Valley Asbestos Corp. v. Tougher Heating & Plumbing Co., supra, 510 F.2d at 1144. Here, once again, there is nothing whatsoever in the record to indicate that Miller is in dangerous probability of achieving monopoly power in Middlesex and Somerset counties. Indeed, it seems much more likely that Miller will be able to demonstrate the futility of any effort to monopolize that beer market. Thus, this Court is not convinced that the plaintiff will be able to prove the existence of the specific intent necessary for a § 2 conspiracy to monopolize violation. The plaintiff’s fourth contention is that Miller’s terms of sale to the plaintiff constitute price discrimination, in violation of § 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a). Specifically, the plaintiff complains that it was required to pay cash in advance or cash on receipt, while Miller extended credit to other distributors in the Eastern Region who requested it. The first difficulty with this argument is that most of the evidence relating to Miller’s terms of sale to other distributors in the Eastern Region is irrelevant. An essential element in a price discrimination case is that there exists competition between the disfavored customer and the favored customer(s). See FTC v. Borden Co., 383 U.S. 637, 643, 86 S.Ct. 1092, 16 L.Ed.2d 153 (1966); M. C. Mfg. Co. v. Texas Foundries, Inc., 517 F.2d 1059, 1066 (5th Cir. 1975), cert. denied, 424 U.S. 968, 96 S.Ct. 1466, 47 L.Ed.2d 736 (1976); Refrigeration Eng’r Corp. v. Frick Co., 370 F.Supp. 702, 712 (W.D.Tex.1974); Bel Air Markets v. Foremost Dairies, Inc., 55 F.R.D. 538, 540-41 (N.D.Cal.1972). There is nothing in the record to indicate that the plaintiff has been in competition with any of the Eastern Region distributors, except for Warren. Thus, the only relevant differential is that between the plaintiff and Warren. A second and more serious difficulty with the fourth contention is that courts are very reluctant to find that credit differentials amount to violations of § 2(a). See, e. g., Craig v. Sun Oil Co., supra, 515 F.2d at 224; Lang’s Bowlarama, Inc. v. AMF Inc., 377 F.Supp. 405, 408-09 (D.R.I.1974). Indeed, the plaintiff has not cited, nor has this Court been able to find, any case which has made such a finding. It is obvious that differences in the borrower’s financial strength, business experience, and many other factors bring about differences in the terms of credit, security required, guarantees, and other devices used by creditors under these circumstances. Craig v. Sun Oil Co., supra, 515 F.2d at 224. Given the numerous business stresses which may affect credit terms, discrimination in credit terms must be of an extreme magnitude or nature before it can be the basis for a claim under § 2(a). See id. It does not appear from the current record that the plaintiff will be able to establish that Miller’s discrimination in credit terms was of such an extreme magnitude or nature as to constitute a violation of § 2(a). In fact, it seems more likely that Miller will be able to show that its terms of sale to the plaintiff derived from legitimate business reasons. Accordingly, no preliminary injunction can be based on the plaintiff’s fourth contention. The plaintiff’s fifth contention is that Miller’s termination of the plaintiff’s franchise would be a violation of § 5 of the New Jersey Franchise Practices Act. Specifically, the plaintiff argues that the stated reason for termination contained in Miller’s telegram of May 4th, 1976, cannot, as a matter of law, constitute “good cause” within the meaning of the Act. In other words, the plaintiff contends that “ceasing delivery of Miller products in Middlesex and Somerset countfies]” does not amount to “failure by the franchisee to substantially comply with those requirements imposed upon him by the franchise”. The delivery of Miller products in Middlesex and Somerset counties is clearly a crucial requirement of the plaintiff’s franchise. See, e. g., Distributorship Agreement, “Purpose of Agreement”; id. ¶¶2, 3(e); id. “Schedule II”. However, the plaintiff argues that the establishment of a dual distributorship effectively expunged that requirement from the contract. No authority is cited in support of this proposition. The plaintiff relies solely upon the following line of reasoning: The custom and usage in the trade considered the “area of primary responsibility” to be an exclusive area. Thus, Miller’s action in establishing a dual distributorship was, in effect, a breach of contract which absolved the plaintiff of any obligation to service Middlesex and Somerset counties. The weakness in this argument is the assertion that the area of primary responsibility is an exclusive area. It is not obvious that the plaintiff will be able to démonstrate the existence of a clear-cut custom and usage in the trade. There is evidence that dual distributorships — at least in some product lines — are not unknown in the Miller distribution system. Although an officer and a former officer of the plaintiff corporation testified that they considered the area of primary responsibility to be an exclusive area, and their understanding is relevant to interpretation of the contract, see 2 A. Corbin, Corbin on Contracts § 528 (1950), it must also be shown that Miller knew or had reason to know of their understanding. See 3 id. § 537. Finally, even if a custom or usage could be proved, the franchise agreement itself states that the area of primary responsibility “is not to be regarded as being exclusively Distributor’s territory unless otherwise required by applicable law or regulation”. See Distributorship Agreement, “Schedule II”. Given this plain and unambiguous language, there does not appear to be any room for an implication or an inference that the parties contemplated the creation of exclusive territorial rights in the plaintiff. See Independent Oil Workers v. Mobil Oil Corp., 441 F.2d 651, 653 n.4 (3d Cir. 1971). Thus, it does not appear that the provision for an area of primary responsibility can be read out of the contract. Therefore, the plaintiff’s cessation of delivery in Middlesex and Somerset counties is a failure to comply with an important requirement imposed by the franchise. This seems to be precisely the type of situation which would give rise to “good cause” for termination within the meaning of the Franchise Practices Act. Plainly, noncompliance by a franchisee with his reasonable franchise obligations, resulting in an actual or potential adverse effect upon the sales of the franchisor’s products, would constitute substantial noncompliance thereof for purposes of termination, impairing as it does the franchisor’s fundamental reason for initially entering into the relationship. Amerada Hess Corp. v. Quinn, 143 N.J.Super. 237, 256, 362 A.2d 1258, 1269 (L.Div. 1976). Because it appears that Miller will be able to establish the existence of good cause for termination, no preliminary injunction can be based on the plaintiff’s fifth contention. Finally, in its sixth contention the plaintiff asserts that Miller imposed unreasonable standards of performance on the plaintiff, in violation of § 7(e) of the Franchise Practices Act. The plaintiff cites the following as the unreasonable standards: (a) the plaintiff was required to operate without the normal credit extended to other distributors in New Jersey; (b) the plaintiff was required to pay for beer in advance of delivery; (c) the plaintiff was required to adhere strictly to an arbitrary order and payment schedule; (d) the plaintiff was required to operate under Miller’s allocation system, while other distributors were not so burdened; (e) the plaintiff was required to wait undue periods of time for the delivery of beer because Miller rerouted shipments to the plaintiff; (f) the plaintiff was required to negotiate at a disadvantage with Warren Distributing Co. because of Miller’s interference; and (g) the plaintiff was required to compete with Warren because Miller established a dual distributorship in violation of a trade custom or usage. This contention must be rejected at this time because the Court is not convinced that the plaintiff will succeed in showing that Miller’s conduct with respect to the above-listed problems was unreasonable, given the plaintiff’s financial condition and Miller’s own business practices and capabilities and contractual obligations. Furthermore, it should be noted that not all of the listed items can be considered “standards of performance” within the meaning of § 7(e). In addition, there is a serious question of remedy: it is not clear that a court should enjoin the termination of a franchise on the ground that there have been violations of § 7(e), when the stated reason for termination is unrelated to the allegedly unreasonable standards of performance. In conclusion, it does not appear that the plaintiff has demonstrated a reasonable probability of ultimate success on the merits with respect to any of its contentions. Because such a showing is essential to the issuance of a preliminary injunction, the plaintiff’s motion for a preliminary injunction must be denied. The foregoing opinion shall be considered the Court’s findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). An appropriate order will be submitted. . The plaintiff’s area of primary responsibility — see n.2 infra — was Somerset and Middle-sex counties. In July, 1975, the area of primary responsibility of Warren Distributing Co., which had been operating in Warren and Hunterdon counties, was extended to include Somerset and Middlesex counties. Thus, both the plaintiff and Warren were responsible for distributing Miller products in Somerset and Middlesex counties. This situation — two distributors being responsible for the same geographical area — will be referred to as a “dual distributorship”. . According to Miller’s standard contract for distributors, the “area of primary responsibility” is a geographical area “within which Distributor’s performance is to be determined under the standards set forth in the Agreement”. The area of primary responsibility “is not for the purpose of limiting Distributor’s sales” to a particular location, nor is it “to be regarded as being exclusively Distributor’s territory unless otherwise required by applicable law or regulation”. See Distributorship Agreement, Schedule II. See also Note, Restricted Channels of Distribution Under the Sherman Act, 75 Harv. L.Rev. 795, 797 (1962). . Miller has argued that this Court lacks jurisdiction over the claims based on state law because the plaintiff has failed to plead or prove complete diversity of citizenship. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); 28 U.S.C. § 1332. In particular, Miller points out that both the plaintiff and the defendant William D. Mickey were citizens of New Jersey at the time this suit was commenced. Nevertheless, this Court will continue to exercise jurisdiction over the state law aspects of this case under the doctrine of pendent jurisdiction, because it is clear that the plaintiff’s federal and state claims derive from a “common nucleus of operative fact” and that trying all these claims in one judicial proceeding will promote convenience and sound judicial administration. See Aldinger v. Howard, - U.S. -, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976); United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 195-197 (3d Cir. 1976). It is not necessary that pendent jurisdiction be affirmatively pleaded. See Fed.R.Civ.P. 8(a)(1); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1207 (1969). Even if pendent jurisdiction were lacking, the defendant Mickey could be dropped as a party in order to preserve diversity jurisdiction, if his presence is not required under Fed.R.Civ.P. 19. See Fed.R.Civ.P. 21; 7 C. Wright & A. Miller, supra, § 1685 (1972). . During the peak months of beer sales, spring and summer, there is a shortage of beer among the distributors, because Miller apparently cannot produce sufficient beer to meet demand. Beginning in 1975, Miller found it necessary, , during these periods of short supply, to allocate its products according to a formula which determines the present year’s allocation based upon a particular distributor’s contribution to sales in a given region during the prior year. For example, the plaintiff’s sales constituted 2.3 per cent (2.3%) of the Eastern Region’s sales volume in 1975. During periods of short supply in 1976, the Miller formula would allocate to the plaintiff 2.3 per cent (2.3%) of the beer available to the Eastern Region.

11105242-6143

MEMORANDUM OPINION AND ORDER HADEN, Chief Judge. Pending is Defendants’ joint motion to dismiss. The Court GRANTS the motion in part and DENIES the remainder as moot. I. FACTUAL BACKGROUND Plaintiff Frank H. Coffman, II is a former employee of Defendant American Home Products Corporation (AHPC). He participated in AHPC’s Long Term Disability Plan (Plan). AHPC also provided him life insurance benefits and comprehensive health coverage. Defendant Metropolitan Life Insurance Company (MetLife) negotiated, maintained, and administered the Plan. The parties agree ERISA covers the Plan. On November 26, 1996 Coffman became disabled from a combination of impairments. MetLife paid him six (6) months of short term disability benefits, and then, briefly, began paying long term disability benefits. Subsequently MetLife refused further payments to Coffman. The determination was upheld by AHPC’s Retirement Committee. On January 10, 2001 Coffman instituted this action. His four count Amended Complaint asserts claims against both AHPC and MetLife for (1) wrongful denial of benefits/breach of fiduciary duty (Counts I and III); and (2) violation of the West Virginia Unfair Trade Practices Act (WVUTPA), West Virginia Code Sections 33-11-1 et seq. (Counts II and IV). Defendants assert (1) Coffman has no claim for breach of fiduciary duty; and (2) the WVUTPA claims are preempted. II. DISCUSSION A. Governing Standard Our Court of Appeals has often stated the settled standard governing the disposition of a motion to dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure: In general, a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff. Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993) (citations omitted); see also Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir.1996); Gardner v. E.I. Dupont De Nemours and Co., 939 F.Supp. 471, 475 (S.D.W.Va.1996). B. Breach of Fiduciary Duty Contention Defendants assert Coffman attempts to allege a claim for breach of fiduciary duty under ERISA, 29 U.S.C. § 1132(a)(2), when he has an adequate claim for wrongful denial of benefits under 29 U.S.C. § 1132(a)(1)(B). Generally, one is prohibited from using Section 1132(a)(2) under these circumstances. See Dwyer v. Metropolitan Life Ins. Co., No. 00-1514, 2001 WL 94749, at *8 (4th Cir. Feb.5, 2001) (“The Supreme Court has recognized that in certain circumstances a beneficiary may sue for breach of fiduciary duty, but the remedy is limited to ‘appropriate relief.’ ‘[Wlhere Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be ‘appropriate.’ ” Varity Corp. v. Howe, 516 U.S. 489, 515, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). “Congress has provided Dwyer a right to seek benefits under ERISA § 502(a)(1)(B).”). Responding, Coffman denies pleading a fiduciary breach claim. Instead, he asserts his claim is no more than one alleging a wrongful denial of benefits under Section 1132(a)(1)(B). His reference to fiduciary duties was done to demonstrate a fiduciary’s “conflict of interest bears on the deference to be given to a claims decision applying the abuse of discretion standard of review.” Opp. Mem. at 4. Coffman having so limited his claim, the Court DENIES as moot Defendants’ motion to dismiss Counts I and III of the Amended Complaint. C. Unfair Trade Practices Claim Counts II and IV of the Amended Complaint allege claims under the WVUTPA. Coffman’s claims track many of WVUTPA’s enumerated unlawful practices. All of the practices relate to the Plan and Defendants’ processing of Coffman’s benefit claims. In sum, however, other allegations in Counts II and IV indicate Coffman’s general dissatisfaction with how Defendants handled his benefits request. See, e.g., Am. Compl. ¶ 19 (stating MetLife “was dutybound to consider the subject claim for disability benefits without committing the following [unfair] acts”) (emphasis added); id. ¶20 (stating Met-Life “maliciously, wantonly, oppressively and recklessly denied Plaintiffs application and appeal for long term disability”) (emphasis added). ERISA’s express preemption provision, 29 U.S.C. § 1144(a) provides pertinently: Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. 29 U.S.C. § 1144(a). The preemptive sweep of Section 1144(a), however, is tempered by a savings clause contained in Section 1144(b)(2)(A), which preserves for state regulation any law “which regulates insurance, banking, or securities.” 29 U.S.C. § 1144(b)(2)(A). Our Court of Appeals has applied Section 1144 to a beneficiary’s attempt to assert WVUTPA claims arising out of a plan’s denial of benefits: Custer contends that if the preemption clause of 29 U.S.C. § 1144(a) applies, so does the savings clause in § 1144(b)(2)(A), saving from preemption any law regulating insurance.... Custer argues that her state law claim alleged in Count III, based on West Virginia’s unfair trade practices [Act], W.Va.Code § 33-11-4(9) (defining unfair settlement practices as an unfair trade practice), is saved from preemption as arising under a law that regulates insurance.... Controlled by Pilot Life [Insurance Company v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) ] and Powell [v. Chesapeake & Potomac Telephone Co., 780 F.2d 419, 423-24 (4th Cir.1985) ], we hold that Custer’s claims under West Virginia law relating to improper claims processing or administration are not saved from preemption by the savings clause.

3521267-22414

ORDER KOZINSKI, Chief Judge. This complaint of judicial misconduct is brought on behalf of James L. Cole and possibly other plaintiffs in Baskett v. United States, 2 Cl.Ct. 356, and related cases. The complaint raises various charges against the judge to whom the Baskett case is assigned and requests reassignment of the case to a different judge. RUSCC App. B, ¶¶ 3, 4 authorizes the chief judge either to dismiss the complaint or to refer it for further investigation. I. BACKGROUND The complaint arises from ongoing litigation against the United States over the construction and operation of certain high-lift navigation locks and dams on the Ohio River. The plaintiffs claim that these locks and dams have increased the erosion of their lands and that the United States committed fraud when it bought from them certain flowage easements. Baskett is not the first case to present these issues. Virtually identical claims were vigorously and exhaustively litigated by the same attorneys before the same judge in Loesch v. United States, Nos. 240-75, 430-75, 435-75, 1-76, 111-76, 307-77. The trial judge ruled for defendant in a lengthy opinion, affirmed per curiam by the Court of Claims. 227 Ct.Cl. 34, 645 F.2d 905 (1981). Plaintiffs then filed unsuccessful petitions for rehearing en banc, to reopen proof, for certiorari and for rehearing from the denial of certiorari. 227 Ct.Cl. 35, 63, 645 F.2d 905 (1981); 454 U.S. 1099, 102 S.Ct. 672, 70 L.Ed.2d 640 (1981); 455 U.S. 984, 102 S.Ct. 1496, 71 L.Ed.2d 695 (1982). Approximately one month after the Court of Claims affirmance in Loesch, plaintiffs in Baskett moved to disqualify the trial judge. The motions strongly criticized the Loesch opinion and charged that various findings made by the judge would preclude a fair trial in Baskett. Judge Miller, then Chief of the Trial Division, denied the motions. He noted that “disqualification of a judge requires that the bias or prejudice be ‘personal’, i.e., its origin is extrajudicial. Thus, rulings in prior cases, previously expressed views of the law, or prior adverse decisions against a present litigant are all legally insufficient for disqualification.” Order of May 29,1981, at 4. Judge Miller found that the matters raised in the motions for disqualification could be raised as exceptions to the trial judge’s decision, but were improper grounds for disqualification of that judge in a separate case. Id. Dissatisfied with Judge Miller’s ruling, plaintiffs sought review in the appellate division. The court adopted Judge Miller’s analysis, holding that the reasons given by plaintiffs were “inadequate” to establish bias or prejudice and characterizing plaintiffs’ arguments as “unsound.” Order of July 21,1981, 228 Ct.Cl. 788. Undaunted, plaintiffs next filed a petition for writ of mandamus with the United States Supreme Court. The petition reiterated plaintiffs’ dissatisfaction with the trial judge’s handling of Loesch and argued that “the Order denying disqualification of [the trial judge] amounted to an unconstitutional delegation of authority to an Article I judge.” Petition at 24. The Supreme Court summarily denied the petition. 454 U.S. 1051, 102 S.Ct. 618, 70 L.Ed.2d 604 (1981). II. THE COMPLAINT OF JUDICIAL MISCONDUCT A. Our procedure for processing complaints of judicial misconduct, adopted pursuant to 28 U.S.C. § 372(c)(17) (Supp.1982), provides that any person may allege that a judge “has engaged in conduct prejudicial to the effective and expeditious administration of the business of the court.” RUSCC App. B, ¶ 1. The chief judge may dismiss the complaint if he finds (1) that it does not allege such conduct; (2) that it directly relates to the merits of a decision or procedural ruling; or (3) that it is frivolous. If he does not dismiss the complaint (and does not find that corrective action has already been taken) the chief judge must appoint a committee to investigate the charges. Id. at ¶¶ 3, 4. B. In this case the complaint must be dismissed as a transparent attempt by the Baskett plaintiffs to relitigate the issues conclusively resolved by the denial of their motions for disqualification of the trial judge. Much of the complaint presents the same criticisms of the Loesch decision that appeared in the motions for disqualification, sometimes even in the same language. Not only are such matters barred by the court’s prior rulings, but they also relate directly to the merits of the judge’s decision and therefore cannot form the basis for a complaint of judicial misconduct. 28 U.S.C. § 372(c)(3)(A)(ii); RUSCC App. B, ¶ 3(a)(1)(ii). The complaint also takes exception to various statements and rulings made by the judge at a pretrial conference held on December 7, 1982. Complainants argue that it was misconduct for the judge to refuse to define the issues for trial; to prohibit presentation of certain testimony; to express a view as to the admissibility of a document; to encourage the filing of a dispositive motion in order to narrow or define the parties’ legal positions; and to refuse to “believe his wife’s definition of a flood, Webster’s definition of a flood, or anyone’s definition of a flood.” Complaint at 4. Aside from the patent frivolousness of these allegations, they directly concern the judge’s rulings in the case and therefore are specifically excluded from the proper bounds of a complaint for judicial misconduct. 28 U.S.C. § 372(c)(3)(A)(ii); RUSCC App. B, ¶ 3(a)(1)(H). The only allegations falling even remotely within the proper ambit of a complaint for judicial misconduct are the following: “2. [The judge] expressed chagrin that complaints of judicial misconduct [ ] had touched him, pp. 10 & 53. 3. [The judge] admitted ex parte counseling with [defendant’s attorney] concerning the filing of pleadings in the pending litigation, pp. 36 & 45.” Complaint at 3. These allegations are, however, unequivocally belied by the materials accompanying the complaint. A careful review of the pretrial conference transcript reveals that the judge expressed not the slightest personal displeasure or animosity towards plaintiffs because of their earlier motions for disqualification. Moreover, the charge of ex parte counseling appears to be a complete fabrication; nothing in the materials submitted supports this allegation. The court finds that the matters alleged as judicial misconduct either directly relate to the merits of a decision or procedural ruling, or are frivolous, or both. The complaint must therefore be dismissed. III. THE ATTORNEYS’ CONDUCT While the complaint raises no serious issues as to the conduct of the judge against whom it is directed, it raises very substantial concerns about the two attorneys who presented it to the court. The circumstances surrounding the filing of the complaint strongly suggest that the attorneys who prepared it — Norman E. Hay and Charles S. Gleason — have neglected their professional responsibilities as members of the bar of this court. Their misuse of the judicial complaint procedure, and other possible abuses of the adversary system suggested by this record, raise concerns that this court may not responsibly ignore. A. Our procedures for handling complaints of judicial misconduct were promulgated pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, Pub.L. No. 96-458, § 3, 94 Stat. 2035, 2036-40. The Act’s purpose was to create a procedure that would deal with allegations of judicial misconduct which did not amount to high crimes and misdemeanors (the standard for impeachment) yet which warranted investigation and possible corrective action. S.Rep. No. 362, 96th Cong., 2d Sess. 3-5, reprinted in 1980 U.S. Code Cong. & Ad.News 4315, 4317-18. Both proponents and opponents of the measure were concerned that the new procedure not be misused. The Senate Committee on the Judiciary repeatedly emphasized that “[fjederal judges ... should not be harassed in the legitimate exercise of their duty to interpret and apply the law,” and noted that the legislation “is not designed to assist the disgruntled litigant who is unhappy with the result of a particular case.” S.Rep. at 6, 8, 1980 U.S.Code Cong. & Ad.News at 4320, 4322. The courts have stressed with unyielding consistency that complaints of judicial misconduct may not be grounded merely upon a litigant’s dissatisfaction with a judge’s handling of a particular case. Torpy v. United States, No. 3, slip op. at 2 (Ct.Cl. Aug. 30, 1982); In re Complaint of Eastman of Judicial Misconduct, No. 2, slip op. at 2 (Ct.Cl. Apr. 28, 1982); Arshal v. United States, No. 1, slip op. at 3 (Ct.Cl. Dec. 10, 1981); In re Charge of Judicial Misconduct, 691 F.2d 924, 925 (9th Cir.1982); In re Charge of Judicial Misconduct, 613 F.2d 768, 769 (9th Cir.1980); In re Charge of Judicial Misconduct, 593 F.2d 879, 880-81 (9th Cir.1979). Chief Judge Browning of the Ninth Circuit explicitly ruled that invocation of the procedures in order to affect the disposition of a single case “is an abuse of the Procedures,” emphasizing that these procedures “are not intended to provide a tactical option to counsel in litigation, but to promote the ‘effective and expeditious administration of the business of the courts’.” 593 F.2d at 880-81. The complaint presented by attorneys Hay and Gleason flies in the face of these authorities. It is nothing more than the latest machination in a prolonged but groundless campaign to dislodge the Bask-ett case from the judge who ruled against them in Loesch. Filing the complaint is particularly egregious in light of the court’s prior rejection of plaintiffs’ motions for disqualification. As Judge Miller stated then, “[i]t would be intolerable if in a multi-judge court either party could be free to pick the trial judge he deemed most favorable to him on the basis of his past decisions or employment.” Baskett, Order of May 29, 1981, at 6. The attempt to achieve this intolerable result through yet another means — a means which Congress and the courts have sternly and repeatedly admonished is not to be used for such a purpose— casts serious doubt upon counsel’s willingness to live up to their responsibilities. In addition to improperly invoking the judicial misconduct procedure, the attorneys made certain charges against the judge which appear to be grossly misleading or even untruthful. See p. 258 supra. An unfounded attack upon a judge by parties appearing before him constitutes a particularly serious abuse because it can impair the integrity of the adjudicatory process by provoking bias or creating the appearance of bias. For example, counsel here eagerly seized upon passing references by the judge to the prior motions for disqualification, attempting to characterize the remarks as prejudice. See p. 258 supra. Counsel’s brazen attempt to manufacture the appearance of bias or prejudice where none exists goes far beyond the proper bounds of advocacy. See Code of Professional Responsibility DR 8-102(B) (1979). Not only have attorneys Hay and Gleason abused the judicial misconduct procedure, they have also forced this court to devote its limited resources to ruling on a totally frivolous matter. Imposition of this unjustified burden on the court is further evidence that counsel lack the proper measure of professional restraint and judgment. The level and complexity of litigation in this country has exploded during the last few decades. See Burger, Annual Report on the State of the Judiciary, 69 A.B.A.J. 442, 443 (1983). The crush of litigation has placed severe strains on our adversary system, causing serious delays and greatly increased costs. This is a severe problem at all levels of litigation and it imposes upon counsel and the courts a grave responsibility to prevent abuse of legal processes. Our system of justice offers counsel a wide range of procedural tools in fulfilling their professional responsibilities. This latitude promotes the flexibility and effectiveness of the adversary process, but the system cannot operate if every attorney exercises every procedural option technically available to him, regardless of how frivolous or how inappropriate to the legitimate presentation of his case. As Chief Judge Markey recently noted on behalf of the Court of Appeals for the Federal Circuit, “[t]he filing of and proceeding with clearly frivolous [matters] constitutes an unnecessary and unjustifiable burden on already overcrowded courts, diminishes the opportunity for careful, unpressured consideration of nonfrivolous [matters], and delays access to the courts of persons with truly deserving causes.” Asberry v. USPS, 692 F.2d 1378, 1382 (Fed.Cir.1982). While attorneys must represent clients zealously, they must also stay within the bounds of the law. Code of Professional Responsibility Canon 7, DR 7-102(A)(10), (2). Where abuses occur, sanctions against the attorney may be appropriate. Id. See Panagopoulos v. INS, 434 F.2d 602, 603-04 & n. 4 (1st Cir.1970). Disciplining errant attorneys is never pleasant but judges have a responsibility to the public to police the professional behavior of the officers of their court. See Code of Judicial Conduct Canon 3(B)(3) (1972) (“[a] judge should take or initiate appropriate disciplinary measures against a ... lawyer for unprofessional conduct of which the judge may become aware”); Booth v. Fletcher, 101 F.2d 676, 680-81 (D.C.Cir.1938), cert. denied 307 U.S. 628, 59 S.Ct. 835, 83 L.Ed. 1511 (1939); In re Weed, slip op. at 13 (undated Court of Claims opinion circa 1870, lodged with the clerk of this court). The imposition of deserved sanctions upon counsel who abuse the court’s processes is necessary “to provide both specific and general deterrence of such conduct.” Litton Systems, Inc. v. AT & T, 91 F.R.D. 574, 576 (S.D.N.Y.1981). B. The limited record presented in this proceeding raises grave concern that attorneys Hay and Gleason may have engaged in a pattern of abuse ranging far beyond the complaint of judicial misconduct. There is reason to believe that they have, on at least one occasion, filed with the United States Department of Justice apparently unfounded charges of misconduct against opposing counsel in Loesch; that they may have harassed opposing party’s witnesses; and, on attorney Hay’s own admission, that he has been threatened with contempt in other courts and admonished about taking frivolous appeals. Courts do not normally police the relationship between attorney and client. However, the filing of a torrent of virtually useless paper in this court and elsewhere raises doubts about whether the attorneys in question are realistically assessing the chances of success of various tactics and candidly informing their clients thereof. The court cannot overlook the possibility that counsel may be generating fees (or gaining some other advantage) by their litigious activity, without providing a commensurate benefit to their clients. The complaint of judicial misconduct, consisting of 9 typed pages, 89 pages of transcript and 47 additional pages of photocopied appendix, did absolutely nothing to further the cause of the Baskett plaintiffs; no attorney of reasonable competence could have thought that it would. If clients were charged in any manner for the preparation of these materials, their money was wasted. Under such circumstances, a court has the responsibility, even absent a complaint, to inquire into the financial arrangement between attorney and client, Rosquist v. Soo Line Railroad, 692 F.2d 1107, 1111 (7th Cir. 1982) (Davis, J., by designation), or to refer the matter to an ethics committee. United States v. Vague, 697 F.2d 805, 807-08 (7th Cir.1983). IV. CONCLUSION A. The complaint of judicial misconduct is dismissed. The clerk is directed to serve copies of this order upon each of the plaintiffs in Baskett and related cases, their counsel, the defendant and its counsel, and the judge against whom the complaint was lodged. B. Attorneys Norman E. Hay and Charles S. Gleason have violated their responsibilities as members of the bar of this court by abusing the judicial complaint procedure. For this misconduct, they are publicly reprimanded. In addition, they are each assessed as a sanction the sum of $500. See In re Tranakos, 639 F.2d 492 (9th Cir. 1981); In re Hanson, 572 F.2d 192 (9th Cir.1977). These sums shall be paid by certified check to the clerk of this court no later than May 2, 1983. Neither attorney may seek reimbursement of any portion of these sums from their clients. C. The record suggests that these attorneys may have engaged in additional questionable conduct. However, much of the information concerning that conduct is unclear and needs closer examination. State disciplinary committees and other courts may be in a better position to evaluate it. To the extent possible, therefore, the clerk is directed to transmit copies of this order to the appropriate disciplinary authorities of any bar association of which attorneys Hay and Gleason are members, and to the clerk of every court to which they are admitted, for any investigation or other action that may be deemed appropriate. The clerk shall request that this court be advised of any action taken on the basis of this transmittal. IT IS SO ORDERED. . The complaint does not specify on whose behalf it is brought. However, it bears (incorrectly) the caption of Baskett; is signed by Norman E. Hay, counsel of record for plaintiffs in that case; names as of counsel Charles S. Gleason, another attorney for those plaintiffs; and attaches the affidavit of Mr. Cole. . A revealing aspect of the complaint is the relief which is sought: removal of the judge from a particular case. This is not the type of relief contemplated by the judicial misconduct procedure. See 28 U.S.C. § 372(c)(6)(B); RUSCC App. B, ¶ 6(b); pp. 258-59 infra. . While the statement mistakenly refers to “complaints of judicial misconduct” it clearly alludes to the earlier motions for disqualification. That counsel use the terms interchangeably shows again that the complaint is merely a rehashing of the earlier motions. . In any event, an expression of bias in a single case cannot form the basis for a complaint of judicial misconduct. In re Charge of Judicial Misconduct, 595 F.2d 517 (9th Cir.1979). Bias in a particular case is the problem addressed by 28 U.S.C. § 455(a); judicial misconduct requires a showing of “a pattern of partiality extending beyond the particular litigation.” 595 F.2d at 517. . See also S.Rep. at 3, 1980 U.S.Code Cong. & Ad.News at 4317; additional views of Senator Howell Heflin, id. at 20, 1980 U.S.Code Cong. & Ad.News at 4333-34 (“the decision-making functions of judges can only be reviewed through the traditional and conventional appellate process ... [and] disciplinary measures [are not] to be taken against a judge because some might disagree with his decisions or his judicial philosophy”); additional [dissenting] views of Senator Paul Laxalt, id. at 30, 1980 U.S.Code Cong. & Ad.News at 4343 (the existence of these procedures “will give dissatisfied ... litigants grounds to make themselves heard, and thereby to affect the independence of the judge”). . Where an attorney has reasonable cause to believe that a judge before whom he is appearing is subject to a conflict of interest or is guilty of misconduct, he has a right, indeed a solemn duty, to come forward with the information. We must do nothing which will inhibit the presentation of good faith charges concerning judges. For that reason, a strong presumption of propriety attaches to any such complaint, and courts must indulge every reasonable doubt against the inference that counsel is acting in bad faith. As this case demonstrates, however, the presumption is not irrebuttable. . The Chief Justice of the United States has noted that “[l]awyers are officers of the courts and have a high duty not to abuse the monopoly which they have in terms of access to the courts.... [A] lawyer has not only the right, but a duty, to decline to press a frivolous case and impose burdens on the courts, while legitimate claims wait to be determined.” Interview with Warren E. Burger: Unclogging the Courts — Chief Justice Speaks Out, U.S. News & World Report, Feb. 22, 1982, at 40 (hereinafter U.S. News Interview). The Chief Justice admonished that “in some cases the lawyer, not the client, should be subject to money sanctions for abusing the processes of the courts.” Id. at 39-40. . A report prepared by an American Bar Association Committee headed by Justice Tom C. Clark emphasized the need for more active enforcement of professional standards of behavior. Leaving no doubt about the urgency of the problem, the report opened with this alarming paragraph: After three years of studying lawyer discipline throughout the country, this Committee must report the existence of a scandalous situation that requires the immediate attention of the profession. With few exceptions, the prevailing attitude of lawyers toward disciplinary enforcement ranges from apathy to outright hostility. Disciplinary action is practically nonexistent in many jurisdictions; practices and procedures are antiquated; many disciplinary agencies have little power to take effective steps against malefactors. ABA Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement 1 (1970) (hereinafter Clark Committee Report). The Chief Justice has repeatedly cited the findings of the report and urged that firm action be taken to deal with attorney misconduct in order to enhance public confidence in the legal profession. See, e.g., In re Admission of Caplinger, 49 U.S.L.W. 3862, 3862-63 & nn. 5 & 6 (U.S. May 18, 1981) (Burger, C.J., dissenting); U.S. News Interview, supra n. 7, at 37. In words which are as clear as they are pertinent to our situation, the Chief Justice has noted: If we are to maintain public confidence in our profession, it is imperative that courts and local and state bar associations take positive action to deal with every manifestation of professional misconduct. This must be done fearlessly and with fairness to the public, the profession, and the individuals involved. Burger, The Role of the Law School in the Teaching of Legal Ethics and Professional Responsibility, 29 Clev.St.L.Rev. 377, 387 (1980) (hereinafter Teaching of Legal Ethics).

6103831-30897

FINDINGS AND RULINGS RE PROBBER/VOKO AGREEMENT HAROLD LAVIEN, Bankruptcy Judge. This dispute is based on an alleged exclusive agreement to distribute the VOKO products in the entire North American Continent and the Caribbean based on a one-page non-lawyer-drawn agreement of October 31, 1982. The dispute has occasioned discovery in this country and Germany, trial, extensive briefing, and the Court is left with the confusion experienced by an ocean sailor who faces the shifting winds of inland lakes. The ambiguity of the original document, entitled “agreement,” dated October 31, 1982 is more than matched by the conduct of the parties from which support can be culled for each party’s position; but viewed as a whole case, I can reach only one reasonable conclusion, namely, that the parties desired to do business on a basis to be mutually advantageous but never quite achieved a full meeting of the minds. The evidence and contentions of the parties and my findings and rulings are as follows: Both Harvey Probber, Inc., a/k/a Harvey Probber, Inc. (Massachusetts) (“Prob-ber”) and VOKO Franz Vogt & Co. (“VOKO”) are duly organized corporations under the laws of Massachusetts and Germany, respectively, and are both manufacturers and distributors of office furniture, the former in the United States, the latter in Germany and 27 other countries in Europe, the Middle East and Asia. In September, 1982, Mr. Harvey Probber, the president and principal officer of Probber, first became seriously interested in VOKO’s products — office furniture and systems — that were designed uniquely to provide flexibility in utilization of office space. On a visit to a trade show in Milan, Italy, Mr. Probber contacted VOKO by telex requesting catalogs be delivered to his hotel in Milan. VOKO responded by informing Mr. Probber that they were having an exhibit at the Milan fair and that they would welcome a visit by Mr. Probber. Accordingly, Mr. Probber visited the VOKO exhibit as his first order of business upon arriving at the Milan trade show. He met with two representatives who informed Mr. Probber that Franz Vogt (“Vogt”), owner of VOKO, would be attending the fair. An appointment was arranged. Mr. Probber met Vogt at the exhibit. Mr. Probber described his company as a small concern with approximately eight to nine million dollars in annual sales. He represented that his company manufactured its own furniture and provided Vogt with a catalog which impressed Vogt who, then, invited Probber to visit the VOKO factory in Polheim, Germany. Mr. Probber changed his plans to return to the United States and visited the VOKO factory. There, he met with Ernst Breer (“Breer”) the American equivalent of a chief operating officer and second in command to Vogt. They discussed the manufacture of VOKO products at Probber facilities, marketing and distribution, communications, sales and discounts, design and engineering, among other items. No agreement was reached although the parties agreed to meet at Orgatecknik — a German furniture show which was to take place in late October, 1982. Additionally, VOKO provided Mr. Probber with a “Dealer Contract” (Exhibit 2) as representative of VOKO’s contracts with its dealers. Probber had this translated from the original German to English upon his return to the United States. At Orgatecknik, Mr. Probber met with Hans Heller and Werner Lotz, respectively, the export manager and sales executive for VOKO. Serious discussions and negotiations commenced. During these negotiations, a “License and Know How” contract was produced by VOKO and provided to Mr. Probber as an alleged example, as the name implies, of the type of agreement with one who was to be licensed to manufacture and then distribute. At one point, the VOKO representatives requested that Mr. Probber draft an “interim” agreement that could serve as the basis of further cooperation. Mr. Probber hand wrote a draft that night; the draft was discussed and redrafted at least twice the following day. The final draft was signed by the various parties. See Footnote 1. Curiously, the agreement does not describe Prob-ber as owning the “sole” or “exclusive” rights to license, distribute and exhibit VOKO production in the United States. This is most curious as earlier drafts, admittedly, did contain such language. Regarding this deletion, Mr. Probber, originally, offered no explanation but, later, when questioned about the deletion by the Court, Mr. Probber testified: When this occurred, I protested vigorously at the deletion. And I was told — and one must look at this in context — I was told by Hans Heller, with whom I was working, that, “Look. It is late. This affair is closing. This is already contained in your licensing contract. I don’t even think I can find somebody to retype this now. Look.” He did not explain why the term “exclusive” or “sole” was not penned in and initialed. Only Mr. Probber testified as to these events at Orgatecknik; Werner Lotz and Hans Heller did not testify. Following the signing, and upon returning to the United States, Probber attempted to promote the VOKO line of products. It contacted customers, contacted Probber’s national sales representatives, planned publicity campaigns, produced slide shows, and wrote “copy.” VOKO conceded that Probber made considerable marketing efforts but Probber conceded that they were all unsuccessful to the extent that nothing substantial was sold and nothing was manufactured. Almost immediately, VOKO acted as if no contract, at least an exclusive one, existed between the parties. On January 18, 1983, in response to the continual inquiries by Probber, VOKO finally answered and apologized, but it also noted the following: We consider our agreement we signed in Cologne in mutual respect an esteem as the basic requirement regarding our interests in the United States. In order to ensure a long lasting success for both of us it is essential now to develop an adequate strategy to reach this aim. It seems important to us in this connection to find out the amount of investments necessary for the introduction, production and marketing of our products in the American market. These are all questions of far reaching consequences which should be carefully examined and weighed. There followed a list of specific questions on the market and Probber’s position in it, a request for a $60,000 deposit, and a concluding paragraph that emphasizes the de sirability for getting this information so that contracts can be prepared. When Probber was asked about this letter, he said he was puzzled because it was inconsistent with his concept of an already signed exclusive agreement. It is hard to accept that if these were questions mandating careful consideration after the signing of the October 31 agreement, how the October 31 agreement was envisioned, at least by VOKO, as an exclusive contract. Further, only in April, 1983, did a representative of VOKO, Ernst Breer, visit the Probber facility in Fall River, a belated visit for a partner who had signed an exclusive contract. Further, in the course of this visit, Breer discussed other potential distributors in the United States. Probber complains of a general atmosphere of un-cooperativeness — price lists were requested but often were not provided, or provided belatedly, communications went unanswered, and sale aids (samples and catalogs) provided belatedly with what Probber characterized as misinformation. Particularly, Probber faulted VOKO for the failure to obtain a major contract with Xerox: UNFORTUNATELY, WE LOST THE 15 STATION XEROX JOB. WE FEEL THEIR DECISION WAS STRONGLY INFLUENCED BY THE FOLLOWING: 1) OUR QUOTATION WAS BASED ON HIGHER COSTS AS PER INFLATED PRICE LISTS WE HAD BEEN SENT AND WERE USING. 2) XEROX DEMANDED ACCURATE AIR FREIGHT RATES BEFORE WRITING A.P.O. WITH NO WEIGHT OR CU-BAGE INFO HERE, WE TELEXED FOR RATES ON JANUARY 17TH. THE ANSWER CAME JANUARY 26TH — 9 DAYS LATER. THIS TIME LAPSE CONCERNED THEM, PARTICULARLY IN DEALING WITH A NEW IMPORTED PRODUCT LINE ON FOR A RUSH ORDER. BOTH ABOVE FACTORS GAVE THEM CAUSE TO RECONSIDER. However, there was no evidence from Xerox that Probber would otherwise have received the contract. There was talk and negotiations of a joint venture and authorization for and the hiring of a general manager, but the Chapter 11 intervened and VOKO, fearful of Probber’s financial condition, never signed the joint venture. An “Interim Agreement” between VOKO and Probber was signed February 29, 1984. Probber argues that this contract evidenced the original intention of the parties in the October 31 agreement; VOKO contends that this agreement is simply irrelevant and was an attempt to bridge the increasing financial doubts by providing a trial period of performance. The bottom line is that VOKO desired to see some concrete performance and Probber was never able to produce any substantial sales activity. The strongest evidence offered by Prob-ber on the issue of exclusivity was VOKO’s dealings with another American company, Kewaunee. Specifically, one telex sent by VOKO, in pertinent part, reads: [Ajfter detailed negotiations which have come to an end only yesterday we have to tell you that we ultimately decided to cooperate with probber in the [U.S.] market as our activities have already shown. [W]e have had connections with probber since September 1982 and we trust that you understand that we cannot and do not want to change our partner. This telex illustrates the semantic difficulties in the use of terminology. The VOKO people use the term “partner” in a quite different context than we would use the term. Their dealers are all referred to as “partners,” in the dealership contracts, though it is clear that their numerous dealers in Germany are not partners in the sense that we would use the term. I find that Probber draws too much from the Kewaunee telexes. VOKO had invested considerable time, effort and money in trying to develop Probber as a potential marketer of its product and was not yet willing to abandon that effort. This is borne out by another of the telexes indicating an attempt on a trial basis to give Probber one more last chance to perform well enough to consider making them VOKO’s primary distributor in the United States. [TJhank you for your telex 09 jan 84. [I] understand your situation with prob-ber and that you gave them six months to meet certain goals. [I] can also see your concern about making an agreement for distribution of mepr until you have settled overall distribution. The telex of January 9, 1984, however, was never produced by VOKO and, while Prob-ber correctly seeks to have the Court draw adverse inferences from this failure, the most that can be made from that is that VOKO would recognize Probber as its exclusive U.S. distributor, if in six months it met certain goals. Something Probber failed to do. Finally, it should be noted that despite the representation of dealing in 27 countries, and the production of at least 85 distributors outside of Germany, almost no contracts with these dealers were produced. It is almost inconceivable that a company with 80 million dollars in annual sales could conceivably expect this Court to believe that it did business on little more than a handshake. Again, drawing such inferences from that, as would be most beneficial to Prob-ber, the undisputed fact was that in each of those countries there were at least two distributors. Only in countries where the distributor was wholly owned was there any evidence of exclusivity, with the exception of one or two Arab countries. The threshold inquiry facing the Court is whether the agreement between Harvey Probber, Inc. and Voko Franz Vogt and Co. dated October 31, 1982, constitutes a legally enforceable contract. Accordingly, the Court, first, must examine whether there was consideration translated in this situation as a quest for mutuality of obligation. On its face, the October 31, 1982 agreement seems to lack any obligation on Probber’s part; however, both the U.C.C. and Mass. cases readily dispose of that issue by presuming an obligation to use best efforts, thereby making the consideration the exchange of obligations or promises by VOKO to supply the furniture, and by Probber to use its best efforts to sell the same. Mass.Gen.Laws Ann. ch. 106, (U.C.C.) § 2-306(2) (West 1958): (2) A lawful agreement by either the seller or the buyer for exclusive dealing in the kind of goods concerned imposes unless otherwise agreed an obligation by the seller to use best efforts to supply the goods and by the buyer to use best efforts to promote their sale. St.1957, c. 765, § 1, effective Oct. 1, 1958. See also Coan v. Holbrook, 327 Mass. 221, 97 N.E.2d 649 (1951). The more difficult question requires a mixed determination of law and fact and may be stated as follows: A. When the purported agreement contemplates a further written agreement which is, in fact, not executed, is there a legally enforceable agreement or merely an unenforceable agreement to agree? The resolution of that question seems to favor considering the original purported agreement preliminary negotiation unless the facts show an intention to be bound initially with the essential terms agreed upon with the further writing merely a formal memorializing of the existing agreement. When the parties have not agreed to essential terms of the contract and intend to draw up a final written agreement in the future, the parties are generally considered to have reached the stage of “imperfect negotiation” and not a completed contract. For example, in Rosenfield v. United States Trust Co., 290 Mass. 210, 195 N.E. 323, 122 A.L.R. 1210 (1935), the Court found that the parties had not intended to be bound until a final written expression of the draft lease was completed with agreement of terms such as construction of a new store front, and payment of heat and water was made. The Court said: ... [I]t would seem that the parties agreed on certain fundamental terms of the proposed lease, with an implied understanding that others were to be settled later by mutual agreement. An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto. Rosenfield v. United States Trust Co., 290 Mass. at 217, 195 N.E. at 330. The Court presumed that the parties intended not to be bound by earlier negotiations: Normally the fact that the parties contemplate the execution of a final written agreement justifies a strong inference that the parties do not intend to be bound by earlier negotiations or agreements until the final terms are settled. Rosenfield v. United States Trust Co., 290 Mass. at 216, 195 N.E. at 329. See also, Tull v. Mister Donut Development Corp., 7 Mass.App. 626, 630, 389 N.E.2d 447, 451 (1979). Air Technology Corp. v. General Elec. Co., 347 Mass. 613, 626, 199 N.E.2d 538, 551 (1964). The opinion in Wilcox v. Shell Eastern Petroleum Products, Inc., 283 Mass., 383, 186 N.E. 562 (1933) makes a similar statement regarding agreements to agree. It states: The fact that the parties agreed in the instrument that there should be a later formal contract, while not conclusive on the question whether they intended earlier to be bound or to what extent they intended to be so bound, Donovan v. Freeman, 263 Mass. 561 [161 N.E. 606], tends to indicate the intent that their final contract was to be the binding expression of all their completed negotiations. Wilcox v. Shell Eastern Petroleum Products, Inc., 283 Mass. 383, 387, 186 N.E. 562, 566. The Probber/VOKO letter shows intention to execute a final written agreement in the future. The letter states, “... VOKO and Probber also agree to negotiate a more detailed contract at their earliest mutual convenience.” (¶ 3) Initially, this letter indicates with the guidance of Wilcox and Rosenfield decisions, that VOKO and Probber did not intend to be bound until the “more detailed contract” was completed. B. When essential terms of the agreement are not included in the writing, the writing does not constitute an enforceable contract. The issue can also be phrased as whether the respective obligations of the parties are clear enough for the Court to enforce the agreement as a final expression of the parties’ intentions, (assuming intention to be presently bound is shown). The court in Wilcox found: The relationship which the parties proposed to create necessarily included a considerable amount of details and, during its potentially long life, substantial sums of money. The reciprocal obligations of the parties in this relationship were such that ordinarily men entering into it would require a contract with full expression of their respective duties and liabilities. Wilcox v. Shell Eastern Petroleum Products, Inc., 283 Mass. at 387, 186 N.E. at 566. The court in Wilcox found that the essential terms required for a legally binding contract in this instance, such as price, quantity of purchases and payment terms, were not provided for in the preliminary agreement. The Wilcox court states the general rule: In order that the plaintiff may recover, the instrument relied on must be found to state the essential terms of a contract, by which the parties intended to be bound, with sufficient definiteness and clarity that a court, by interpretation with the aid of existing and contemplated circumstances, may enforce it. Wilcox v. Shell Eastern Petroleum Products, Inc., 283 Mass. at 388, 186 N.E. at 567. The VOKO/Probber letter may or may not show intention to be bound. Even if the Court could find intention to be bound at the time the letter was drafted, the Court would have difficulty determining the parties’ respective obligations. Paragraph 2 refers to the parties’ obligations. It states, “Probber will import products and components from VOKO and/or manufacture the VOKO system ... as will be beneficial and agreeable to both companies.’’ (Emphasis added). Even though the letter refers to the Partnership and License and Know-How Contract, the parties had yet to agree on what their terms and conditions would be. Even if this letter agreement did constitute a contract, it may be unenforceable due to uncertainty. Essential terms regarding basic prices of products, costs of delivery, installation handling, and which party would bear the burden of these costs were not included in this writing. The writing stipulated that the agreement became “... effective when signed ... and may first be terminated on 31st Dec. 1985 by serving notice of 1 year.” In other words, the letter contemplated a relationship between the parties of perhaps three years and two months from the date of the letter with provision for three calendar year extension periods. The parties contemplated a distributorship and/or manufacturing agreement which would necessarily be a complicated venture. Defendant’s Exhibit No. 28 is a good example of the many essential terms that were not addressed in the October 31st letter. This exhibit is entitled, “License Agreement.” It was a proposed contract drafted by Probber and never accepted by VOKO to further define the respective obligations of the parties. This agreement includes terms regarding authority to use VOKO trademark, maintenance of secrecy of VOKO technology, and patent rights for improved technology. Examples of essential terms included in this agreement is on page 3, numbered paragraph 5, entitled “Furnishing of Technical Aid and Know-How.” It states: 5.1VOKO shall deliver to the Partnership at the Partnership’s principal offices such documentation and information in VOKO’s possession with respect to the Products' and the Propriety Technology as the Partnership shall request. If such documentation and information is not in English, VOKO shall provide the Partnership with translations thereof. VOKO shall supply all necessary design documentation, parts lists and work plans for the production and assembly of the Products. VOKO shall make available to the Partnership such technical personnel as may be necessary to fully acquaint the personnel of the Partnership with the Products and Proprietary Technology, and shall periodically update the Partnership with respect to the Proprietary Technology. VOKO shall train employees of the Partnership and its agents and subcontractors in methods of producing and distributing the Products. VOKO and the Partnership shall agree from time to time with regard to suitable numbers, technical aptitude and the length of the training period of personnel to be sent to Germany by the Partnership. Such persons shall remain employees of the Partnership or its agents or subcontractors during the training period. During the training period, the Partnership shall bear traveling, accommodation and subsistence costs of, and shall bear the responsibility for obtaining insurance coverage for, such personnel. 5.2 VOKO shall provide the Partnership with handbooks and complete sample catalogues and shall provide the necessary training of qualified staff of the Partnership for consulting and sales duties on the same basis described in Section 5.1. 5.3 Insofar as the Partnership wishes to purchase sample furnishings, models, tools, devices, machines, components, advertising material or similar material from VOKO, such materials shall be sold to the Partnership by VOKO at VOKO’s direct labor and material costs, without mark-up, and otherwise subject to VOKO’s Standard Conditions of Sale and Delivery. Assistance in factory planning or exhibition planning shall be provided on the same terms, (emphasis added) These paragraphs define the respective obligations to provide sample catalogues, training for Probber sales representatives, traveling costs, translations among other terms. The parties do not have a completed contract unless some of these basic obligations are defined and agreed. Other im portant terms that were not included in the October 31st letter include shipping and installation costs, standards for quality of products, costs for storage in U.S.A., terms regarding display rooms and showrooms in the U.S.A., and compensation or commission rates for Probber sales people. The parties did not have a completed contract with all essential terms and, thus, Probber had great difficulty receiving cooperation from VOKO in its marketing efforts. Probber could not obtain price lists to meet its customers’ needs, and lost sales. Probber could not arrange for training for its sales representatives. Probber could not obtain accurate information regarding shipping and handling costs or receive up-to-date sales catalogues. All these problems would have been provided for in a complete contract. The letter agreement of October 31st does not constitute an enforceable contract. The obligations of the parties had yet to be defined and the Court has no basis on which to enforce the agreement. The determination that no legally binding contract was created by the October 31, 1982 agreement or by any of the subsequent activities of the parties does not end the Court’s determination of this matter. The Court considers the cases cited by Probber and discovered by the Court’s own research readily distinguishable. Chedd-Angier Production Co. v. Omni Publications International, Ltd., 756 F.2d 930 (1st Cir.1985); Coan v. Holbrook, 327 Mass. 221, 97 N.E.2d 649 (1951); John T. Burns & Sons, Inc. v. Brasco, 327 Mass. 287, 98 N.E.2d 262 (1951); Bartlett v. Keith, 325 Mass. 265, 90 N.E.2d 308 (1950). Nevertheless, in the interests of judicial economy and because the parties have briefed and presented their case as if there was a legally binding agreement of some sort, the Court will also deal with the question of whether such exclusivity was an element, presuming a contract of some sort did exist. We can struggle over the details, some more important than others, such as the meaning of the elimination of the words “sole” or “exclusive” from the Probber draft to the final document signed by the parties on October 31, 1982 or the conflict between the two types of agreements referred in that preliminary agreement, but at least two aspects of that document are clear. First, VOKO was willing to have Probber try to sell its products and, a second, that the details were to be worked out. The correspondence and actions of the parties take conflicting tacks and even occasional jibes away from their intended course but certain marks of the course stand out. VOKO already had distributors throughout most of Europe and the Near East but, thanks to VOKO’s devious and conflicting responses to discovery, it was not clear exactly under what arrangements these distributors operated. However, the undisputed fact remains, that with the ex- eeptions of perhaps two small near eastern countries and perhaps two countries with wholly owned VOKO distributors, there was no country with a single/exclusive distributor. It really strains credibility as well as reasonable business judgment to expect that VOKO would change its well established policy of dividing even the smaller European country and give exclusive distributorship to potentially its richest market, the United States, Canada, and all of the Caribbean, to a relatively small unknown without obtaining extensive financial data and opportunity to test performance. In fact, VOKO’s performance is most consistent with this interpretation of an agreement to test the waters as a preliminary to a determination of the type of business arrangement that was best suited to a development of this new market. While Probber is pushing ahead to show how well it can perform, VOKO is seeking the information one would expect as preliminarily necessary to setting a course. In its letters, VOKO wants all kinds of financial and background information — it wants deposits for material to be shipped, it wants projections of development costs, and it is keeping its options open by exploring other distributor possibilities — and doing it all so openly as to even asking Prob-ber’s opinions of other possible distributors while encouraging Probber to produce some actual sales. VOKO would like to make a solid arrangement with Probber, despite its lack of performance, and joins with it at trade shows and even runs a training course for its staff. When after two years there are still no substantial sales, just promises, it is even willing to consider a more formal joint venture under a general manager hired for just this purpose, but none of this comes to fruition when, on top of Probber’s disappointing bottom line results, it learns that Probber’s financial situation has forced it to sail below its anticipated course into that area shown on the charts as dangerous because of rocks, called Chapter 11. Even then, it turns down other possible distribution plans and enters a conditional agreement to give Probber one last chance to perform, and that arrangement collapses. I find and rule that Probber and VOKO agreed to authorize Probber to represent it as a preliminary to formalizing a long-term distributorship on a basis to be further negotiated and further negotiations did, in fact, take place and an agreement was even signed calling for a further trial run. But the ultimate agreement for a long-term distributorship never materialized because of Probber’s failure to successfully market VOKO’s products and its financial difficulties. No commitment to an exclusive distributorship was intended by VOKO at this preliminary stage. None was created by the agreement of October 31, 1982 nor by any of the parties’ actions thereafter. Neither Probber nor VOKO acted in bad faith — they just never met each other’s expectations and, therefore, were unable to get beyond their preliminary agreement to attempt to agree on anything more than that Probber could try to sell VOKO products. We need not consider what Probber would have been paid for any sales it made since, admittedly, no sales were consummated. The best that Probber could have, if one were to assume some validity to the October 31, 1982 agreement was an agreement to try to agree, which does not expire until December, 1985, provided appropriate notice of termination was given, giving Probber a non-exclusive right until then to try to sell any of VOKO’s products, and VOKO would have an obligation to honor any such sales under its usual terms. . The parties filed a stipulation consenting to the referral of this non-core adversary for hear ing, determination, and entrance of a final order pursuant to 28 U.S.C. § 157(c)(2). If, because the stipulation was filed with this Court rather than the District Court as implied by 28 U.S.C. § 157(c)(2), it should be determined that this Court could not render a final judgment, in that event, the Court submits its Findings and Rulings as proposed Findings and Rulings. . A conflict of law question would seem to be raised. The agreement was executed in Germany contemplating Probber’s performance in the United States. Both the standard Partnership (Dealer) Contract and the License and Know-How Contract provide for German law; however, the parties agreed when the Court raised the issue that Massachusetts law would control and have argued and briefed the cause and on that basis, Court will, therefore, rule that Mass, law controls and, in any event, since no evidence to the contrary was presented that German law, if appropriate, is consistent with Mass, law. . AGREEMENT VOKO Franz Vogt and Company, a furniture manufacturer in West Germany and Harvey Probber, Inc., a furniture company in the U.S.A., have had meetings and discussions and have together agreed that Probber will represent, market and sell VOKO products in the U.S.A., Canada and Carribean Islands. Probber will import products and components from VOKO and/or manufacture the VOKO system of wall units and partitions as will be beneficial and agreeable to both companies. To encourage and accelerate Probbers planning and marketing activities, VOKO and Probber also agree to negotiate a more detailed contract at their earliest mutual convenience. The terms and conditions of this contract will be in general accordance with VOKO's standard Partnership (Dealer) Contract and the License and Know-How Contract. The agreement is concluded for an indefinite period. It becomes effective when signed and when all permits necessary towards its performance have been granted. The agreement may first be terminated on 31st Dec. 1985 by serving notice of 1 year. After this time, it can be terminated by serving notice of 1 year before the end of three calendar year extension periods. Cologne, October 31, 1982 . The Omni Court was "convinced that this was a close case,” 756 F.2d at 935, and turned not on the original conditional writing but on subsequent oral conversations that, if believed, explicitly confirmed the arrangement:

11405950-12759

COFFEY, Circuit Judge. Mercedes Benz of Orland Park operates a car dealership in south suburban Cook County, Illinois. In August 1999, the company’s non-mechanical service employees (consisting of car drivers, porters, detail-ers, and parts department employees) voted to join the International Brotherhood of Teamsters Local # 731 and thereafter went on strike. The purpose of the strike was to pressure the dealership to recognize the union as the employees’ bargaining agent and to protest various unfair labor practices that the workers alleged were being committed by the company. The National Labor Relations Board subsequently concluded — and the employer did not dispute on appeal — that certain of the dealership’s managers violated the National Labor Relations Act when due to anti-union animus they discharged or threatened to discharge several employees, coerced striking employees through the use of surveillance tactics, abandoned their commitment to improve the employees’ benefit plans, and refused to allow any striking employees to return to work despite their unconditional offers to do so. The Board thereafter issued an order directing the company to enter into good-faith bargaining with the union. 333 NLRB No. 127, 2001 WL 423133. We enforce the order of the Board. I. FACTUAL BACKGROUND Michael Chiarito, a porter at Orland Park Motor Cars’s Mercedes-Benz dealership, arranged for officials from Teamsters Local # 731 to meet with the company’s non-mechanical service employees in late August 1999 for the purpose of discussing the possibility of securing union representation. Chiarito obtained signed union authorization cards from twelve out of the twenty-one workers (approximately fifty-seven percent of the workforce) between August 24 and August 30 and thereafter notified the Teamsters of the employees’ wishes to join the union. Chiarito’s attempt to organize his fellow employees was opposed by members of Orland Park’s management team. For example, during the union membership drive, the company’s service manager, Michael Maus, asked two employees, “Who started the union?” and stated that when he found out the organizer’s name he would “f— king fire” the man. Maus later made similar threats in the presence of Chiarito. The company’s vice-president and general manager, Barry Taylor, allegedly advised several employees that they should vote against the- union because “any organizational drive would be futile.” Taylor also called a meeting with the employees on August 30, 1999 and was alleged to have told them that in light of the union activity he was withdrawing his previously expressed commitment to improve the firm’s employee benefit plan. Orland Park has not challenged the Board’s ruling that Maus and Taylor’s actions were motivated by an intent to undermine majority support for the union. After the conclusion of Taylor’s meeting and comments to the employees on August 30, union officials approached Taylor in his office and demanded that Orland Park recognize Teamsters Local # 731 as their collective bargaining representative. When Taylor refused, the employees walked off the job and set up a picket line on the sidewalk in front of the entrances to the dealership. The Board found — and the company did not contest during oral argument — that certain Orland Park officials participated in a number of unfair labor practices during the month-long strike. For example, on September 2, the company’s finance and insurance manager, Todd Koleno, paused while walking through the picket line and informed the picketers that they were “going to be fired” or otherwise lose their jobs. The company’s dispatcher, A1 Sizemore, followed through on this threat the following day by terminating Brad Patrylak, an employee who was on strike at the time. When Patrylak approached Sizemore’s desk and attempted to pick up his paycheck for work performed prior to the strike, Sizemore handed Patrylak his check and advised him that this was his “last” check, for he was fired “like the rest of them outside.” Almost four weeks later, despite the fact that many of the strikers had made unconditional offers to return to work on September 29, General Sales Manager David Noc-era terminated Chiarito and further stated that the remaining employees who had participated in the strike also “were no longer employees of the company.” The administrative law judge found that the company’s actions violated three separate provisions of the Act. Specifically, the judge ruled that the employer: (1) violated § 8(a)(1) of the Act by coercing or interfering with the employees’ right to form and join a labor union; (2) violated § 8(a)(3) of the Act by engaging in discriminatory hiring practices in order to discourage the employees from forming and joining a labor union; and (3) violated § 8(a)(5) of the Act by refusing to bargain with Teamsters Local # 731 after the union had been designated by the employees as their collective bargaining agent of choice. The Board determined that the appropriate remedy for Orland Park’s unlawful activity was to: (1) order Orland Park to cease and desist its unfair labor practices; (2) offer full reinstatement with back pay to any striking employee who was discharged; and (3) engage in collective bargaining with the union. II. DISCUSSION This matter comes before the court on a petition for enforcement filed by the National Labor Relations Board. The sole argument raised by Orland Park in opposition to the Board’s petition is that it was improper for the Board to order the company to initiate collective bargaining with the Teamsters union. We review the Board’s decision to impose a bargaining order for an abuse of discretion. NLRB v. Intersweet Inc., 125 F.3d 1064, 1067 (7th Cir.1997). Congress has entrusted the Board with eliminating the effects of an employer’s unfair labor practices and protecting the rights of employees to determine, in an environment free of coercion and interference, whether or not to join a labor union of their choice. If a majority of employees have signed authorization cards designating a particular union as their representative, but the employer has engaged in unfair labor practices during an organizational campaign which have had “the tendency to undermine majority strength and impede election processes,” then after a hearing the Board is empowered to certify the designated union and order the company to enter into collective bargaining with that union. NLRB v. Gissel Packing Co., 395 U.S. 575, 614, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). The agency is required to conduct a fair, impartial, and detailed analysis before imposing a bargaining order so as to rule out the possibility that other less intrusive measures would compensate for the damages caused by an employer’s unfair labor practices. Orland Park maintains that the Board improperly imposed a bargaining order in this case, alleging that the Board failed to explain why other remedies (such as issuing a cease-and-desist order and holding another election in a closely monitored environment free of coercion) would have been insufficient to protect the organizational rights of the company’s employees. The employer relies heavily on Peerless of America Inc. v. NLRB, 484 F.2d 1108 (7th Cir.1973), to support the position that a bargaining order is inappropriate. In Peerless, we stated that the Board’s decision to issue such an order must be accompanied by “ ‘specific findings’ as to the immediate and residual impact of unfair labor practices on the election process ... and ‘a detailed analysis’ assessing the possibility of holding a fair election ... and the potential effectiveness of ordinary remedies.” Id. at 1118. Orland Park argues that the Board’s order in the case before us, like the order in Peerless, fails to contain the “detailed analysis” and justification of the Board’s choice of remedies that is required by our case law. We disagree with the company. Orland Park’s discussion of the applicable legal standards ignores this Circuit’s post-Peerless cases, which have elaborated upon the “detailed analysis” requirement and made clear that the Board’s analysis needs only to be sufficiently detailed to “permit the court to perform its task of judicial review.” Justak Brothers v. NLRB, 664 F.2d 1074, 1081 (7th Cir.1981). “Although we will find an abuse of discretion if the Board fails to adequately consider alternatives and explain its choice, we will not otherwise disturb the Board’s decision unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Intersweet, 125 F.3d at 1068 (quotation omitted). As we stated in Justak Brothers, 664 F.2d at 1081, the “detailed analysis” requirement enunciated in Peerless should be understood in light of its purpose of insuring judicial review of the Board’s orders. The requirement is meant neither to burden the Board nor to curtail the issuance of bargaining orders. Elaborate explanations are not essential; indeed, scientific accuracy in estimating the impact of unfair labor practices is impossible. Rather we only require that the Board delineate the factors that it considers in its estimation and describe how those factors have been weighed. Id. The company’s argument that the Board should have made “more specific findings” appears to be a disingenuous attempt to force the Board to provide the type of “elaborate explanations” that Jus-tak Brothers, Intersweet, and other cases have determined to be unnecessary. Upon review, we hold that the Board complied with its mandate under the law to explain and justify its decision when issuing the bargaining order in this case. See America’s Best Quality Coatings Corp. v. NLRB, 44 F.3d 516, 522 (7th Cir.1995); NLRB v. Berger Transfer, 678 F.2d 679, 694-95 (7th Cir.1982). Initially, the Board identified and discussed the company’s undisputed unfair labor practices, such as its repeated threats to discharge labor organizers, its termination of a leading and outspoken union organizer, its retaliatory refusal to implement previously advertised improvements to the firm’s employee benefits plan, its coercive surveillance of employees on the picket line, and its refusal to reinstate the striking employees despite their unconditional offer to return to work. The Board reasonably found that such violations were likely to chill the employees’ future exercise of organizational rights, for the violations: (1) were committed by no less than three senior managers in the company who remained in positions of authority as of the date of the Board’s order; (2) were widely known by the employees in the putative bargaining unit; (3) began within days of the organizational drive and continued throughout the month-long strike; and (4) never were repudiated by the company. In addition, the Board reasonably determined that an election would be infeasible and would fail to reflect the true attitudes of the workers because most employees “would not likely risk again incurring the company’s wrath and another period of unemployment by resuming their union activities.” Finally, the Board rejected the company’s argument that a bargaining order would undermine the § 7 rights of any employees who might oppose joining the union, stating that these workers will remain free to call for an election to decertify the bargaining unit at some point in the future if the union fails to represent their interests. 29 U.S.C. § 159(c)(1). We recognize that in many cases an employer has the right to request a representation election if a majority of employees have signed union authorization cards designating a particular union as their collective bargaining agent. However, the Board may determine that the employer has forfeited its right to call for an election by engaging in conduct that is likely to undermine majority support for the labor organization and disrupt the potential for fair elections. See Gissel, 395 U.S. at 612-15, 89 S.Ct. 1918. In the case before us, the NLRB concluded that Or-land Park’s unfair labor practices were so pervasive that any election would be unlikely to reflect the true sentiment of the service employees who were members of the putative bargaining unit. The Board’s analysis has allowed for meaningful judicial review and has explained the basis of its decision. Because the Board’s order is lawful, rational, supported by substantial evidence, and sufficiently detailed in compliance with existing case law, we are obligated to enforce the order as issued. See, e.g., America’s Best, 44 F.3d at 522; NLRB v. Q-1 Motor Express Inc., 25 F.3d 473, 481-82 (7th Cir.1994); Berger Transfer, 678 F.2d at 694-95.

1262193-14950

Opinion for the Court filed by Senior Circuit Judge JOHN W. PECK. JOHN W. PECK, Senior Circuit Judge: Appellants are three persons whose motion to intervene as plaintiffs in a pending employment discrimination suit was denied by the district court. The complaint that initiated the suit in which appellants now seek to intervene alleged racial discrimination by labor organizations and employers in matters relating to employment as pile drivers. The complained of discrimination was alleged to violate Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. The plaintiffs who filed that complaint were four members of a defendant labor union. One of the plaintiffs had received a Notice of a Right to Sue from the Equal Employment Opportunity Commission (EEOC), pursuant to 42 U.S.C. § 2000e-5(f)(l) (Supp. V 1975). The complaint recited that the action was brought on behalf of the plaintiffs and of all others similarly situated. The plaintiffs moved, pursuant to Fed.R.Civ.Pro. 23, to have the action certified as a class action on behalf of all black or other minority persons who have been or who may in the future be discriminated against on the basis of race or color with respect to employment as pile drivers. The district court denied class certification on the grounds that the plaintiffs had not shown that the class that they sought to represent was sufficiently numerous to justify certification or that declaratory and injunctive relief would not adequately provide most of the relief sought. Appellants, none of whom were members of the defendant union, moved to intervene pursuant to Fed.R.Civ.Pro. 24. Appellants alleged that they had suffered the “same kinds of discrimination as the original plaintiffs,” and that their experiences differed from the original plaintiffs only in that the plaintiffs were members of the defendant union while appellants had been unable to obtain union membership or apprenticeship training due to racial' discrimination. Appellants’ motion sought intervention of right under Fed.R.Civ.Pro. 24(a)(2), and in the alternative, permissive intervention under Fed.R.Civ.Pro. 24(b). The district court denied the motion to intervene on the grounds that the appellants and the plaintiffs in the pending suit were not members of a class under Fed.R. Civ.Pro. 23, and that appellants had not exhausted their administrative remedies. On appeal, appellants argue that this is not a valid reason for denying their motion, that they met the criteria of Fed.R.Civ.Pro. 24(a)(2), and that the district court thus erred in not permitting intervention of right. Alternatively, appellants contend that the district court failed to consider appellants’ motion for permissive intervention under Fed.R.Civ.Pro. 24(b) and that this was an abuse of discretion. It is well settled, and appellants concede, that a party seeking relief under Title VII must file timely charges of employment discrimination with the EEOC before that party may seek judicial relief. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); Love v. Pullman Co., 404 U.S. 522, 523, 92 S.Ct. 616, 617, 30 L.Ed.2d 679 (1972); Evans v. Sheraton Park Hotel, 503 F.2d 177, 183 (D.C.Cir.1974). Appellants filed no charges of discrimination with EEOC, but contend that they may nonetheless intervene as plaintiffs because the Title VII prerequisite of filing charges with EEOC was met by one of the original plaintiffs. Appellants rely on a line of cases which establish that each individual plaintiff in a Title VII class action suit need not individually file an EEOC complaint, but that it is sufficient if at least one member of the plaintiff class has met the filing prerequisite. E. g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8, 95 S.Ct. 2362, 2370 n.8, 45 L.Ed.2d 280 (1975); Romasanta v. United Airlines, Inc., 537 F.2d 915, 918 (7th Cir. 1976); Dodge v. Giant Food, Inc., 488 F.2d 1333 n.l (D.C.Cir.1973); Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 985 n.11 (D.C.Cir.1973). The rationale of this line of cases was explained by Judge Griffin Bell: It would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with EEOC. If it is impossible to reach a settlement with one discriminatee, what reason would there be to assume that the next one would be successful. (Emphasis added.) Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968). In class actions this rationale is invariably applicable, for the very fact that the suit is a class action means that the plaintiffs’ claims not only share common questions of law and fact, but those claims are such that representative plaintiffs will fairly and adequately protect the interests of all plaintiffs of the class. Fed.R.Civ.Pro. 23(a)(3) & (4). The rationale of the above cases has been extended to situations where no class action had been certified, but where the court was nonetheless able to treat as a class a plaintiff who had satisfied the EEOC filing requirement and one or more plaintiffs who had not satisfied that requirement. For example, in Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876 (8th Cir. 1977), fifteen plaintiffs joined in a Title VII suit alleging racial discrimination. No attempt was made to certify the suit as a class action, and only two of the plaintiffs had filed EEOC charges. The Eighth Circuit held that Title VII relief could not be denied to the thirteen plaintiffs who had not pursued administrative remedies. In reaching that result, the court noted that these plaintiffs had “alleged facts demonstrating they were similarly situated and had received the same discriminatory treatment” as had the two plaintiffs who had filed EEOC charges. Id. at 882. Under these circumstances, the court determined that, “it would be nonsensical to require each of the plaintiffs to individually file administrative charges with the EEOC,” id. at 883, thus reaffirming Judge Bell’s reasoning in Oatis. In circumstances more similar to those of the present case, the Fifth Circuit in Wheeler v. American Home Products Corp., 563 F.2d 1233 (1977), permitted intervenors in a class action to maintain their Title VII claims after the class action status had been denied, even though the intervenors had not themselves pursued administrative remedies. The court determined that the inter-venors and the original plaintiffs, who had filed EEOC charges, were “members of the same class.” Id. at 1239. In reaching this result, the court stated that the reasoning of Oatis should apply, “wherever similarly situated persons intervene in an action and one or more of the original plaintiffs had satisfied the jurisdictional requisites.” Id. It thus appears that the critical factor in determining whether an individual Title VII plaintiff must file an EEOC charge, or whether he may escape this requirement by joining with another plaintiff who has filed such a charge, is the similarity of the two plaintiffs’ complaints. Where the two claims are so similar that it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges, then it would be “wasteful, if not vain,” 398 F.2d at 498, to require separate EEOC filings. However, where the two complaints differ to the extent that there is a real possibility that one of the claims might be administratively settled while the other can be resolved only by the courts, then the rationale of Oatis does not apply. In such a case each plaintiff should be required to separately file an EEOC charge in order to effectuate the- purpose of Title VII’s provisions for administrative relief. In the present case, appellants have alleged that they and the original plaintiffs are victims of the same discriminatory practices. In their memorandum in support of their motion to intervene, the appellants asserted that their claims were “essentially identical” to those of the original plaintiffs, stating that their experience differed only in that the plaintiffs had been able to ob tain membership in a defendant labor union prior to initiating this lawsuit, while none of the appellants had obtained membership until after they attempted to intervene. Consistent with the appellants’ contention that their claims are nearly identical to plaintiffs’, the original plaintiffs filed an amended complaint that incorporates the complaints of the appellants. We conclude that the appellants have asserted claims of racial discrimination that are so similar to those asserted by the original plaintiffs that no purpose would be served by requiring appellants to file independent racial discrimination charges with EEOC. In their motion to intervene, the appellants “alleged facts demonstrating they were similarly situated and had received the same discriminatory treatment,” 554 F.2d at 882, as the original plaintiffs. This discriminatory treatment constitutes the basis for both appellants’ and the original plaintiffs’ Title VII claim for relief. This being so, the EEOC charge filed by one of the original plaintiffs served the principal functions of the EEOC filing requirement, enabling the EEOC to provide the alleged wrongdoer with notice and to permit possible conciliation. See Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 727 (D.C.Cir.1978). If it was impossible for the EEOC to effectuate a settlement of the original plaintiffs’ claims, there is no reason to believe that the EEOC would be successful in settling appellants’ claims. Consequently, it was error for the district court to deny appellants’ motion to intervene as to the Title VII cause of action for the reason that the action had not been certified as a class action and appellants had not filed charges with EEOC. In denying appellants’ motion to intervene for failure to exhaust administrative remedies, the district court also denied appellants the right to intervene in the § 1981 cause of action recited in the complaint. In Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 996 (D.C.Cir.1973), we rejected the proposition that a plaintiff must file a charge with EEOC or plead an excuse for not doing so before he can bring an action under § 1981. In reaching that result, we noted that § 1981 and Title VII provide radically different schemes of enforcement and differ so widely in their scopes that the courts’ customary duty to accommodate conflicting legislation is inapplicable. Rather than concluding that Title VII creates any procedural barriers to the application of § 1981, we concluded that the two statutes provide independent, if overlapping, actions for racial discrimination in employment, and that the EEOC filing requirement of Title VII cannot be applied to § 1981, which itself contains no such requirement. In addition, the Supreme Court in Johnson v. Railway Express Agency, 421 U.S. 454, 461, 95 S.Ct. 1716, 1720,44 L.Ed.2d 295 (1975) concluded that the remedies of § 1981 and Title VII are separate and distinct and that Congress did not expect a plaintiff to complete Title VII procedures prior to initiating a § 1981 suit. Accordingly, we conclude that the district court erred in denying appellants’ motion to intervene in the plaintiffs’ § 1981 action on the grounds that appellants had not exhausted administrative remedies. Since we have concluded that the district court inappropriately applied a requirement of exhaustion of administrative remedies to deny appellants’ motion to intervene, we now turn to a consideration of appellants’ . motion under the appropriate criteria. Those criteria are supplied by Fed.R.Civ. Pro. 24, which establishes two categories of intervention, intervention of right and permissive intervention. Appellants’ motion seeks intervention under each of these sections in the alternative. Because we con- elude that appellants are entitled to intervene of right, we do not consider the alternative question of permissive intervention. Preliminarily, we have determined that it is proper for this Court to rule on appellants’ motion rather than to remand to the district court for that decision. We are well aware that in the usual circumstances of an appeal from a denial of a motion to intervene the district court has already evaluated the motion according to the criteria of Rule 24. In those cases the appellate court’s review is directed to an examination of the district court’s decision to determine whether the denial of intervention of right was clearly erroneous or whether a denial of permissive intervention was an abuse of discretion. See, Hodgson v. United Mine Workers of America, 473 F.2d 118, 127 n.40 (D.C.Cir.1972). In contrast, in the present case the district court has not attempted to apply Rule 24 to appellants’ motion. However, there is no requirement that the district court make findings of fact and conclusions of law in ruling on a motion to intervene, Edmondson v. State of Nebraska, 383 F.2d 123, 126 n.l (8th Cir. 1967), and motions to intervene are usually evaluated on the basis of well pleaded matters in the motion, the complaint, and any responses of opponents to intervention. Stadin v. Union Electric Co., 309 F.2d 912, 917 (8th Cir. 1962). Since those materials are presently before this Court, judicial economy is better served by this Court deciding whether appellants have made a sufficient showing under Rule 24 to be entitled to intervene than by remanding to the district court for that decision. Fed.R.Civ.Pro. 24(a)(2) provides four criteria for intervention of right. The first of these is that the motion to intervene must be timely made. Whether a motion to intervene is timely made is “to be determined from all the circumstances, including the purpose for which intervention is sought ,.. and the improbability of prejudice to those already in the case.” Natural Resources Defense Council v. Costle, 561 F.2d 904, 907 (D.C.Cir.1977), citing Hodgson v. United Mine Workers of America, 473 F.2d 118, 129 (D.C.Cir.1972). See also, NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973). In the present case appellants satisfied the timeliness requirement when their motion was made little more than one month after the district court denied the original plaintiffs’ motion for class certification. Until that denial, appellants might have reasonably believed they could secure relief as members of a plaintiff class. Though the motion to intervene did not occur until approximately ten months after the filing of the complaint, it is improbable that the defendants would be prejudiced by intervention at that time since the purpose of intervention was to permit appellants to join in the complaint rather than to assert different causes of action. Under these circumstances, appellants’ motion to intervene was timely.

3468256-27585

WYATT, District Judge. This is a motion by petitioner The Island Territory of Curacao (Curacao) for an order confirming an arbitration award and enforcing a judgment. Curacao is a political entity which is part of the Netherlands Antilles, which in turn is a separate political entity and a part of the Kingdom of the Netherlands. Respondent Solitron Devices, Inc. (Solitron) is a New York corporation with its principal place of business in Rock-land County in this District. Solitron makes and sells semiconductor devices for the electronics industry. The award was made by three arbitrators at Willemstad in Curacao on August 13, 1970. Solitron did not participate in the arbitration. The award was in favor of Curacao and, among other things, directed Solitron to pay to Curacao some 445,000 guilders (the local currency; something over $250,000), with interest and costs. The award was “deposited” at the Registry of the Court of First Instance in Curacao and on August 14, 1970 a Judge of that Court issued a “writ of execution” which declared that the award was “enforceable”. On February 10, 1972, Curacao filed in this Court a petition “to confirm arbitration award and to enforce the judgment entered thereon”. Curacao then caused service to be made on Solitron of the summons and petition and also of notice of the present motion (the exhibits described in the petition are in fact annexed to the motion papers). The petition invokes the “Convention on the Recognition and Enforcement of Foreign Arbitral Awards”, the enforcement of which is provided for in Chapter 2 (§§ 201-208) of Title 9 of the Code. Jurisdiction seems clearly conferred by 9 U.S.C. § 203; diversity jurisdiction is also asserted. There is a “related claim” based on New York law, specifically, CPLR Article 53 (§§ 5301-5309), “Recognition of Foreign Country Money Judgments”. Solitron filed an answer asserting many defenses and with a counterclaim for money damages. The matter was pending before Judge McLean at the time of his death, was thereafter reassigned to me, and duly came on to be heard. 1. A written agreement was executed in triplicate in Curacao on January 12, 1968. Solitron and Curacao were parties; the Netherlands Antilles, the government entity for all the Dutch islands in that area and referred to in the agreement as the “Central Government”, was also a party. (The geographical area and the government entity of Netherlands Antilles will sometimes be referred to simply as the “Antilles”.) The agreement was apparently in Dutch. A translation is part of the moving papers ; Solitron has submitted nothing to cast doubt on the accuracy of this translation ; a certain awkwardness is noticed as to a few of the words in translation. The aims of the parties are evident. The principal competitors of Solitron had been manufacturing their devices “offshore”, outside the United States, “in places where labor is available at far less than prevailing wage rates in the United States.” (Friedman opposing affidavit, p. 1) There was “heavy price competition” in the industry, “pressures on Solitron mounted” (Friedman, pp. 1, 2), and Solitron believed a plant in Curacao would give it the needed advantages. On their part, Curacao and Antilles wanted to attract industry to the islands and thus to create jobs. There were no representations in the agreement, however, as to wage rates—past, present, or future—or as to anything else. Curacao had initiated the contact with Solitron, whose President “expressed interest in locating a manufacturing facility in Curacao” (Friedman, p. 2). The negotiations for the agreement then took place in Curacao. Solitron’s president was in Curacao in August 1967 where he met “all of the top governmental and judicial officials of the island” and “many of its business leaders and bankers” (Friedman, p. 2). He was there again before and at the signing of the agreement and undoubtedly Solitron had counsel in Curacao for all needed advice. The agreement goes into some detail but for present purposes only the principal provisions which affected the award need be outlined. Curacao set aside (“destines” is the word used in the translation) for an industrial park about 60 acres near the airport (Art. 1). Curacao agreed to construct two factory buildings in the park, one (“the larger”) of about 30,000 square feet and the other (“the smaller”) of about 20,000 square feet. These are to be built according to plans submitted by Solitron and approved by Curacao. Presumably the buildings were to be erected at the expense of Curacao, but there is a statement that when the plans are approved, “a written agreement shall be concluded” between the parties specifying what costs were to be for Curacao and what for Solitron. (Art. 9) Presumably such an agreement was made because, as will later appear, Curacao did in fact bear many expenses and Solitron did in fact send in a substantial amount of material for the buildings. Curacao agreed to build an access road to the park and other roads within the park up to the building sites (Art. 8) . Curacao agreed at its expense to lay pipes to supply the park with distilled sea water (Art. 5). The two buildings were required to be “delivered” within 12 months of approval of the plans and to be leased “forthwith” to Solitron for 20 years at a rent, the amount of which was specified (Art. 9) . It was agreed that Solitron would operate in the larger building and could use the smaller building also or could sublease it. Solitron agreed “to put its electronic manufacturing industry into operation” within 12 months of delivery of the larger building and “shall create” at least 100 jobs (presumably within the 12 month period). (Art. 3) Solitron agreed that before January 1, 1974 it would establish (presumably in the park) “manufacturing industries” which, with Solitron’s own employment, would “provide employment for at least three thousand (3000) persons born in the Netherlands Antilles . . .”. (Art. 3) It was provided that “the laws of the Netherlands Antilles shall be applicable” (Art. 12). There were detailed provisions in Article 12 for arbitration of any dispute between the parties. Since these provisions are of significance to the present motion, it may be well to quote them in full: “2a. All disputes arising between the CENTRAL GOVERNMENT and/or the ISLAND GOVERNMENT, and SOLITRON as a consequence of or in connection with the present agreement or further agreements for the implementation of the present agreement, legal as well as factual, shall be submitted to a board of arbitration. The decision of this board shall be binding on all parties involved in the dispute. “b. A dispute shall be considered to exist if one of the parties notifies the other party by registered letter that he is of opinion that such is the case. In the case of such a dispute each of the parties shall appoint an arbitrator and both arbitrators so designated shall jointly appoint a third one. Should one of the parties or both parties not designate an arbitrator within one month or should both arbitrators not reach an agreement on the choice of the third arbitrator, then the third arbitrator shall at the request of the willing party be appointed by the President of the Court of Justice of the Netherlands Antilles. “c. The arbitrators shall have to render an award within four months-after the day on which the third arbitrator has accepted his appointment. “d. The arbitrators shall judge and give an award like good men and true, taking into account that which has been stipulated by contract between parties without being bound by rigid rules of the laws of the Netherlands Antilles. The procedure with respect to the settlement of the dispute shall be determined by the arbitrators. “e. The fee due to the arbitrators shall be borne by the CENTRAL GOVERNMENT and/or the ISLAND GOVERNMENT, and SOLITRON, on a fifty/fifty basis. All other costs arising from the arbitration shall be chargeable to the party found to be in error. The arbitrators are entitled to set off these costs against each other wholly or partially, should both parties be found to be partially in error.” Finally, there was a provision which reads as follows: “Article IS SOLITRON shall invariably choose domicile for everything pertaining to the execution of the present agreement and further agreements made for the implementation or supplementation of the present agreement, as well as for all acts of judicial execution at the office of notary-public Mr. E. L. Joubert, Kerkstraat 11 A, Wilemstad, Curacao.” The word “invariably” seems to be a poor translation. According to counsel for Curacao, the Dutch word “onveranderlijk”; this same word is also used in the award (Exhibit I, p. 1) and is there translated “irrevocably” (Exhibit J, p. 1). The meaning conveyed, even by “invariably”, is that Solitron submits itself to the jurisdiction of Curacao and designates, without power of change, a resident of Curacao as its agent on whom notice or process can be served. It seems that the local resident agent of Solitron, Notary Public Joubert, was in fact the attorney in Curacao for Solitron. 2. From the papers submitted (other than the arbitration award), it is not clear what happened between the execution of the agreement on January 12, 1968, and the initiation of arbitration by Curacao on April 13, 1970. For purposes of the present motion, this is of no moment. Some things do appear from the papers without any serious dispute and, at least for background, it may be well to mention them. Solitron did submit plans for the two buildings and the plans were approved. Solitron shipped to Curacao structural steel, air conditioning and other equipment, and work tables; this was for the two buildings and Solitron says it was “worth” $221,855 (this is the subject of Solitron’s counterclaim). The two buildings were completed and, except for the material shipped in by Solitron, was at the expense of Curacao. When the buildings were completed, does not appear; on April 13, 1970, the Lieutenant Governor stated flatly: “ . . .we completed the two factory buildings at an expense to us of NAf. [local currency] 1,500,000”. In May 1969 and for a time thereafter, widespread disorders occurred in Curacao, probably caused by unemployment, low wages, and social unrest. Government did not break down, but there was some change in government personnel and policies. As one of the new policies, there was a new minimum wage law which, according to Solitron, “immediately raised minimum wages by two and one-half times” (Friedman, p. 4). The new minimum wage law caused Solitron to lose interest in Curacao and in the agreement; it determined that it would not carry out the agreement. As counsel for Solitron later and frankly put it: “The new wage rate destroys the economic advantage of manufacturing in Curacao”. The president of Solitron was in Curacao in November 1969, apparently attempting to get out of the agreement. A lease on the two completed buildings was offered to Solitron in accordance with the January 12, 1968 agreement. Solitron refused the lease. This seems to be established by the papers and in any event to be evident. The position of Solitron in its pleading is in this respect puzzling. The petition of Curacao alleges: “8. Thereafter, the two factory buildings required to be constructed by the Agreement were in fact built by Curacao. Despite this, Solitron refused to enter into a lease agreement and perform other obligations imposed upon it by the Agreement.” The answer of Solitron does not mention this paragraph 8 and does not specifically admit or deny its averments. Apparently Solitron intends to cover paragraph 8 of the petition by a general denial in paragraph 1 of its answer. It is difficult to see how Solitron can deny that it refused to enter into a lease, whatever its excuses may be. Refusal to enter into a lease was and is the critical issue in the dispute. It is also difficult to see how Solitron can deny that the buildings were completed; Solitron does not say that it is without knowledge or information sufficient to form a belief as to the truth of the averment that the buildings were completed; it denies outright that the buildings were completed. Yet later in the answer Solitron avers (para. 31) that Curacao “has leased to third persons the premises which it agreed to lease to Solitron”. 3. On April 13, 1970, Curacao sent to Solitron in care of its agent in Curacao a written notice of dispute and of the invocation of arbitration. Curacao appointed as its arbitrator Dr. de Haseth. It does not appear what is the business or profession of Dr. de Haseth. Evidently Solitron received the notice. On May 12 and May 13, 1970, Solitron sent cables to its resident agent in Curacao, named in the agreement, which agent was also its attorney there. The cables purported to revoke the authority of the agent “to represent us” (annex to Friedman affidavit). The agreement, however, does not permit any such revocation. Under date of May 15, 1970, New York counsel to Solitron wrote to Curacao declining to proceed to arbitration. When Solitron failed to designate an arbitrator within the time provided in the agreement, Curacao asked the President of the Court of Justice of Antilles to make the appointment. The President on June 9, 1970 appointed Dr. Schoordijk, who is a professor (of what does not appear) at the University of Tilburg, a city in the southern part of the Netherlands. Notice of this was given to New York counsel for Solitron. The two arbitrators then appointed a third arbitrator, Dr. Ariens. At the time, Dr. Ariens was a “substitute member” (probably similar to a “senior judge” in the federal courts) of the Court of Justice of the Antilles and had formerly been President of that Court. By cable on July 1, 1970, Dr. de Haseth advised Solitron at its principal place of business in Rockland County of a schedule for submission of statements by the parties (in English, if desired) and of a hearing to be held on Monday, August 11, 1970 (evidently this was a typographical error; August 11, 1970 was a Tuesday). Under date of July 9, 1970, Dr. de Haseth confirmed this by letter to Solitron in Rockland County and also advised of the appointment of the second and third arbitrators and of their professional backgrounds. By letter dated July 23, 1970, Dr. de Haseth advised Solitron of the appointment of Dr. Ariens as Chairman and of the appointment of a Secretary. By letter under date of August 3, 1970 to Solitron in care of its agent in Curacao, the Secretary advised that the hearing would be on August 10, 1970 at 0900 in the Chamber of Commerce Building in Curacao and summoned Solitron to appear then and there. A similar advice was sent by letter dated August 4, 1970 to Solitron in Rockland County. 4a. The arbitrators met on August 10, 1970 and conducted a hearing, Curacao being there represented. Documentary evidence was received. On the same day, the arbitrators visited the industrial park wherein the factory buildings were located “to take stock of the configuration of the terrain” (Award, p. 5; references to the award are to the English translation, physically a part of the motion papers but described in the petition and recited to have been annexed thereto). The arbitrators heard witnesses on August 11 and 12, 1970 and drew up a report of their testimony. Solitron ignored the arbitration completely; it did not attend any hearing and submitted nothing to the arbitrators, in writing or otherwise. The award was made and signed by the arbitrators in Curacao on August 13, 1970. The award is said to be made “ex aequo et bono”. This expression probably has no bearing on the present motion but its meaning can be determined. A translation of relevant parts of the arbitration law of the Antilles is part of the moving papers. That law is sometimes referred to herein as simply “the law”, where the context points of the law of the Antilles. The law provides that a “reward” (evidently a typographical error for “award”) is to be made “according to the law, unless the compromise has granted them the power to judge as good men in accordance with the principles of equity”. It is assumed that “compromise” is a poor translation for “agreement”. It would appear that the provision in the January 12, 1968 agreement that the arbitrators shall “give an award as good men and true” was intended to authorize them “to judge as good men in accordance with the principles of equity”. The use by the arbitrators of the expression “ex aequo et bono” is believed to indicate that the arbitrators acted under the authority just described. “Ex aequo et bono” comes from the civil law and means, among other things, “according to equity and conscience” (Black’s Law Dictionary (4th ed.) 659). Indeed, the word “equity” comes from the Latin “aequus” (“equal”). 4b. The award was in favor of Curacao, but the arbitrators did not accept all the points of Curacao, rejecting important items of damages. The arbitrators found that the date of completion of the buildings was December 1, 1969 (p. 15); references are to pages of the English translation in the moving papers); that in negotiations thereafter between the parties about the lease Solitron never objected to December 1, 1969 as the date when the lease should begin (p. 12); that an offer of lease of the two buildings had been made to and refused by Solitron (pp. 5-7); and that this was a breach of contract for which Solitron was obliged “to pay compensation” (p. 7). While Solitron boycotted the arbitration proceeding, the arbitrators nevertheless considered the two defenses asserted by Solitron in a letter of March 18, 1970 to Curacao by Solitron’s attorney there and in the letter (already mentioned) of May 15, 1970 of Solitron’s New York counsel to Curacao. The two defenses were: (i) that the “basic factors and information” on which Solitron decided to operate in Curacao having “disappeared” because of the May disorders and the new “general minimum wage law”, Solitron by “force majeure” was “discharged” from the January 12, 1968, contract (p. 6); and (ii) that Solitron made the contract by mistake induced by assurances of Curacao that the wages then obtaining would continue whereas there was quickly a new and increased minimum wage law (p. 8). The arbitrators noted that the new minimum wage law did not apply to a private enterprise such as Solitron but only to employees of the government in Curacao; and that as to the May 1969 disorders these were “an isolated incident” (pp. 10, 11) and not a standard by which to judge the 20 year contract period (p. 11). As to (i), the arbitrators found that in agreeing to a 20 year lease Solitron could not have expected wages in Curacao to remain the same over the 20 year period as they were on January 12, 1968; that under the contract law of the Antilles force majeure refers to an external cause not foreseeable at the time of the contract; and that wage changes over the 20 year period, foreseeable by Solitron, could never be force majeure (pp. 7-8). As to (ii), the arbitrators found that whether there had been any assurances to Solitron involved a dispute suitable for arbitration; and that on the evidence there had been no such assurances. Further, the arbitrators found that, for a successful defense of mistake under the contract law of the Antilles, the party pleading mistake (Solitron) must have reasonably believed in the existence of the matter as to which it was mistaken and moreover that such mistaken belief was known to the other party (Curacao). The arbitrators found that neither condition was satisfied in the dispute before them. The arbitrators accordingly found that the position of Solitron, expressed before but not in the arbitration, was without merit. The arbitrators then turned to the question of damages. With one exception, the arbitrators rejected all claims of Curacao for damages for “investment costs” (p. 4), such as erection of the buildings, laying out of roads, etc. These items were rejected because it was said that even if Solitron had performed its obligations, these “investment costs” would have been incurred (p. 11). The one exception was the cost of an acid neutralization plant which was found to have been intended uniquely for Solitron and in which no other lessee would be likely to have an interest. The amount allowed for this (p. 12) was 53,602.53 “NAfls.” (the lo cal currency, Netherlands Antilles guilders ; the currency figures hereafter shown without a dollar sign are in local currency). The total amount of “investment costs” claimed by Curacao was 1,521,000.25 (p. 4); the amount not allowed by the arbitrators was thus 1,467,397.72. The arbitrators allowed 192,482.62 for loss of rent on the two buildings for the period December 1, 1969 to July 1, 1971 (pp. 12, 13). It was found “virtually certain” that Curacao could not find another lessee before July 1, 1971 at the earliest. For the same period, the arbitrators allowed 1,021.25 as damages on account of fire insurance premiums which Curacao had paid and would pay. Under the January 12, 1968 contract, Solitron agreed at its own expense to insure the buildings against fire (Article 9(6) ). The arbitrators allowed 375,000 for the period December 1, 1970 to December 31, 1973 as damages for Solitron’s failure to create 100 jobs as agreed (pp. 14, 15). The basis for this allowance was that, by reason of Solitron’s breach, Curacao would have 100 more unemployed in the period than otherwise. Under its laws, Curacao would have to pay “unemployment benefits” to these 100 and also “medical assistance” (p. 14). The amounts of such payments were calculated by using 1969 statistics, with percentage increases for later years as “can be expected”. The total amount of such payments for the period was calculated to be 423,671.35 which the arbitrators “ex aequo et bono” reduced to 375,000 to reflect the present value discount (p. 15). The beginning of the period (December 1, 1970) was determined as the date when Solitron’s breach occurred. The end of the period (December 31, 1973) was determined as the date beyond which the arbitrators would not be justified in awarding this type of damages because the existence of unemployment that far in the future was dependent on unknown factors and “not readily predictable” (p. 16). The arbitrators did not allow the claim of Curacao for damages for Solitron’s failure to create 3,000 jobs by January 1, 1974. This was for the same reason given for ending at December 31, 1973 the award of damages for failure to create the 100 jobs. Damages, if any, for breach of the 3,000 job obligation would be for a period beginning on January 1, 1974 and the existence of unemployment that far in the future was dependent on unknown factors and “not readily predictable” (p. 16). The arbitrators, as noted, did not—for the reason indicated—award damages for any period after December 31, 1973. It is said in the award, however, that “around January 1, 1974, the more diligent party will be able to submit” certain questions “to arbitration in accordance with the procedure laid down in the Agreement” (p. 16). These questions are: (1) loss of rent after December 31, 1973; (2) fire insurance premiums after that date; (3) damages after that date for failure to create 100 jobs; and (4) damages after that date for failure to create 3000 jobs. The arbitrators allowed the cost to Curacao of foreign travel to secure the establishment of industries there. This was found necessary because of the failure of Solitron to perform its obligation to establish such industries. The cost was found to be 25,000 per year and this was allowed for three years—1971, 1972, and 1973. After applying a present value discount, the allowance for this item was 69,000. (pp. 16-17) The arbitrators allowed the cost to Curacao of custodians to guard the two factory buildings. According to “vouchers produced” (p. 17) this cost was 2,100 per month. The period for which this allowance was made began at August 1, 1970 (presumably because this was the first month for which “vouchers” were “produced”) and ended at July 1, 1971 (for the same reason as the allowance for lost rent). For the 11 month period, the total was thus 23,100. After applying a present value discount, the allowance for this item was 21,000. (P. 17) The arbitrators rejected a claim for the costs of prosecuting the arbitration (pp. 16, 17). To recapitulate the award to this point, the following items were allowed: for the acid neutralization plant 53,602.53 for loss of rent to July 1, 1971 192,482.62 for fire Insurance premiums to July 1, 1971 1,021.25 for failure to create 100 jobs 375,000.00 for failure to establish Industries (foreign travel) (to December 31, 1973) 69,000.00 for guarding the buildings (to July 1, 1971) 21,000.00 712,106.40 The arbitrators then allowed Solitron a set off for the value of the structural steel and air conditioning plant (but not “chairs and tables”). This value was found to be 266,424.05. (pp. 18, 19) The net allowance to Curacao was thus 445,682.35. The arbitrators awarded interest at the rate of 6% (p. 20); it was stated that interest would run from July 10, 1970, the date when the proceedings commenced. In addition, under Article 12(e) the arbitrators awarded to Curacao against Solitron $7,500 as one-half the fees of the arbitrators and $1,665 as the total of the expenses incurred by the arbitrators, already paid by Curacao. The award to Curacao was therefore 445,682.35 Netherlands Antilles guilders and $9,165. The award gives every indication of able, careful, and impartial work by the arbitrators. 4c. After the award had been made, the procedure followed was that prescribed by the law of the Antilles. The law requires that the original award must be filed in the Court of First Instance. This was done on August 13, 1970.. The law provides that an award “may be executed by the usual procedure of execution in virtue of an order of the Court of First Instance.” Under this provision, Curacao asked for issuance of a writ of execution and on August 14, 1970 the Court of First Instance declared the award to be enforceable and issued a writ of execution. An award may not be “opposed” nor may it be appealed (unless the agreement so provides and that in suit did not so provide). There is provision in the law for an action to annul the award on grounds which include in general those specified in 9 U.S.C. § 10. Such an action must be brought within three months from the filing of the award in Court. Solitron brought no such action. The award and the judgment entered thereon are final. In April 1971, a “marshal” of the “Court of Justice of the Netherlands Antilles” served by mail to Solitron in Rockland County a writ based on the award and judgment in Curacao. This writ recited that Solitron “is no longer domiciled in the Netherlands Antilles”. (Whether the “Court of Justice of the Netherlands Antilles” is the same as the “Court of First Instance”, does not appear.) 5. Solitron objects that there was “no jurisdiction” over it in Curacao. The objection is so without merit as to be frivolous. Under the January 12, 1968 agreement, Solitron specifically agreed to submit to arbitration in Curacao, agreed that the laws of the Antilles should be applicable, and agreed that for “everything” connected with that agreement it had a Curacao “domicile” and a resident agent for service of notice and process.

1908970-15048

Opinion for the Court filed by Senior District Judge JAMES F. GORDON. JAMES F. GORDON, Senior District Judge: This case presents the question whether an action alleging a breach of a collective bargaining agreement between an employer and a supervisory union can be based on local law or must be brought under § 301(a) of the federal Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a) (1976). The appellant’s decedent tried to maintain this suit as a diversity action that could be resolved under local contract law. The district court, however, held that the suit was preempted by § 301(a) and dismissed the action. We affirm. I. Albert Elkes left B’nai B’rith International (BBI) at the end of 1977 following a staff reassignment earlier that year which he declined to accept. In December, 1979, Elkes first asserted that the reassignment represented a constructive discharge and that he was entitled to severance pay under the provisions of a bargaining agreement between BBI and its staff association. The staff association was the exclusive bargaining agent for a unit that appellant alleges contained only supervisory and managerial workers. After BBI responded that his request was frivolous, Elkes sought to have the staff association arbitrate his grievance with BBI. The association’s executive committee voted on June 3,1980, against taking his grievance to arbitration. However, Elkes was told by letter that day that he could appeal the executive committee’s refusal to the full membership of the association, pursuant to its constitution. Instead, Elkes again wrote BBI’s president on June 6, 1980, asserting a right to present his grievance personally or proceed to arbitration. He repeated those contentions in a letter dated July 24, 1980, but was told over the phone on August 1, 1980, that BBI would not process his grievance further. On December 31,1980, Elkes brought a breach of contract suit for $36,500, alleging that the action could be heard under the district court’s diversity jurisdiction, and should be governed by local law. Initially, the district court granted a discovery request aimed at determining the precise composition of the association. Later, however, the court ruled that even if the association was composed entirely of supervisory and managerial workers, § 301(a) preempted the action. The district court also indicated that had the suit been brought under § 301(a), it would have had to be dismissed because of Elkes’s failure to exhaust his grievance remedies. The appellant continues to plead, however, that § 301(a) is inapplicable because it only pertains to agreements involving “a labor organization representing employees.” This excludes the association’s agreements, the appellant contends, because the association itself is allegedly composed only of supervisory and managerial workers, not statutory “employees.” The appellant relies for his definition of “employees” on § 2(3) of the LMRA, 29 U.S.C. § 152(3), which provides that “[t]he term ‘employee’ ... shall not include ... any individual employed as a supervisor.” That definition is apparently made applicable throughout the LMRA, including § 301(a), by § 501(3), 29 U.S.C. § 142(3). Additionally, the LMRA has been held not to cover the labor activities of managerial workers, NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). II. Our resolution of this case hinges on an understanding of what Congress meant when it enacted the supervisory exclusion in § 2(3). The exclusion stems from the special problem that supervisory workers present in the collective bargaining setting, as discussed in Florida Power & Light Co. v. International Brotherhood of Electrical Workers, Local 641, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477 (1974). On one hand, supervisors are customarily given authority by their employers to hire, fire, discipline and manage other employees, and are assumed to be acting in their employer’s best interests. On the other hand, however, when supervisors organize — and particularly when they affiliate with unions composed of rank and file workers — they become subject to influence or control by labor representatives who will have different goals than the employers. The resulting conflict in loyalties caused initial uncertainty over whether to include supervisors within the organizational and bargaining protections of the original National Labor Relations Act. Following the Supreme Court’s decision to interpret the Act as covering supervisors in Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947), Congress adopted § 2(3) in 1947 to exclude supervisors from 'the rewritten LMRA. Congress’ solution was essentially one of providing the employer with an option. On the one hand, he is at liberty to demand absolute loyalty from his supervisory personnel by insisting, on pain of discharge, that they neither participate in, nor retain membership in, a labor union, see Beasley v. Food Fair of North Carolina, Inc., [416 U.S. 653, 94 S.Ct. 2023, 40 L.Ed.2d 443 (1974)]. Alternatively, an employer who wishes to do so can permit his supervisors to join or retain their membership in labor unions, resolving such conflicts as arise through the traditional procedures of collective bargaining. Florida Power & Light, 417 U.S. at 812-13, 94 S.Ct. at 2748-49 (emphasis added). The appellant argues that § 2(3) extends to prevent supervisors’ agreements from being enforceable under § 301(a) as other union agreements are. That argument was first made over two decades ago, and initially was successful before a panel of this court. But for more than a dozen years now, district and appellate courts have uniformly concluded that § 301 does apply to agreements involving labor organizations that contain supervisors, despite the apparent conflict with the statutory language, because “[t]he particular definition of ‘employee’ in § 2(3) ... has nothing to do with § 301(a) federal jurisdiction.” District 2, Marine Engineers Beneficial Ass’n v. Grand Bassa Tankers, 663 F.2d 392, 398 n. 6 (2d Cir.1981). Some courts have reached this conclusion after reading the legislative history of the LMRA as expressly limiting § 2(3)’s definition to a section of the statute that does not include § 301. At the least, our own review suggests that Congress probably never considered the issue before us. There are at least two explanations for this. First, it apparently was thought that once the 1947 amendments took effect and removed any obligation for employers to bargain with supervisors, that few agreements would ever be negotiated and there would never be any occasion for § 301(a) enforcement. Second and more significant, relatively little thought went into § 301’s scope because few people imagined that it would ever evolve into the profoundly important source of law it has come to be. Originally, the chief purpose of the national labor laws was simply to set forth the ground rules regulating the adversarial relationship between management and labor. Only in recent years has § 301 been broadly interpreted to embody a “national labor policy” that seeks to promote grievance and arbitration procedures and encourage “private rather than judicial resolution of disputes arising over collective bargaining agreements." Clayton v. Automobile Workers, 451 U.S. 679, 689, 101 S.Ct. 2088, 2095, 68 L.Ed.2d 538 (1981). It is this larger role § 301 has come to play that dooms appellant’s statutory interpretation. Nothing about supervisors’ conflicts of loyalty can justify treating their bargaining agreements differently from agreements negotiated by other employees. Instead, with federal labor policy and the LMRA itself now recognized as favoring private resolution of labor disputes, BBI’s agreement must be treated like every other “collective-bargaining agreement [that] is much more than traditional common law employment at will. Rather, it is an agreement creating relationships and interests under the federal common law of labor policy.” Bowen v. United States Postal Service, — U.S. —, —, 103 S.Ct. 588, 594, 74 L.Ed.2d 402 (1983). Among the federal interests implicated by appellant’s suit are concerns that bargaining agreements be enforceable and that grievance procedures be undergirded by judicial deference to the grievance process. The appellant’s statutory interpretation would threaten both of these concerns, however. If this claim were adjudicated under local law, BBI’s agreement might well be unenforceable or subject to widely varying local statutes and court interpretations. Even if the agreement were given effect, there would be no assurance that employees would be required to exhaust their grievance remedies in a timely fashion before turning to the courts. In fact, appellant’s suit vividly illustrates the problems with his argument. Elkes did not raise his grievance until two years after the events giving rise to his complaint. Even then, he did not pursue the grievance through .all the channels adopted by his bargaining agent. Yet it has never been alleged that his agent should be liable for unfair representation. We conclude that the appellant cannot escape federal labor policy by trying to have this claim adjudicated under local law through our diversity jurisdiction. We hold that the staff association was a “labor organization representing employees” within the scope of § 301(a), and we AFFIRM the district court’s dismissal. . After he was reassigned and while he was considering leaving, Elkes negotiated a retainer agreement with BBI through which he was paid $1000 a month for two years following his departure. Under the agreement, Elkes was to provide consultation services two days a week on audiovisual topics. There have been no allegations that BBI breached the retainer agreement. . The district court did not resolve the issue of the staff association’s actual composition. BBI contended that up to 30 percent of the association consisted of employees without “managerial” or “supervisory” authority, including a number of “professional” employees specifically covered by the LMRA, 29 U.S.C. § 152(12). . A host of unresolved issues exist over whether Elkes’s actions were timely, including whether he originally brought his grievance too late and whether he brought this action more than six months after he had exhausted his grievance remedies, see DelCostello v. International Brotherhood of Teamsters, — U.S. —, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) (establishing that grievants have six months to bring § 301 actions after exhausting their remedies). We need not resolve these issues because the appellant has never sought to present this claim as one arising under § 301. Nor is this a case where, having found that § 301(a) preempts appellant’s action, we should simply “recharacterize” the complaint as one arising under § 301. Elkes was not a pro se claimant who inadvertently ran afoul of federal preemption principles, as in Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th Cir. 1980). Rather, there are serious doubts whether he exhausted his grievance remedies as required by § 301(a), or did so in a timely fashion. Instead of confronting these potential barriers, Elkes appears to have made an informed decision to try to invoke our diversity rather than our federal question jurisdiction. . Mr. Elkes died during the pendency of this appeal and we have granted a motion by the executor of his estate to be substituted as appellant. . The section provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. . “Ordinarily, ... an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650 [85 S.Ct. 614, 13 L.Ed.2d 580] (1965); cf. Clayton v. Automobile Workers, 451 U.S. 679 [101 S.Ct. 2088, 68 L.Ed.2d 538] (1981).” DelCostello, supra note 3, 103 S.Ct. at 2290. . That section provides: “When used in this chapter [the LMRA in its entirety, including § 301(a) ] — (3) The terms ... ‘employee’, ‘labor organization’, ... and ‘supervisor’ shall have the same meaning as when used in sub-chapter II [where § 2(3) is contained].” Probably the best explanation for the inclusion of that section is that § 301(a) was drafted to be read in connection with the original Senate provision making it an unfair labor practice to breach a collective bargaining agreement. Had that latter provision been adopted, the section quoted above would have insured that courts hearing § 301 suits would feel compelled to apply the same jurisdictional criteria the NLRB uses in determining its authority to regulate unfair labor practices. However, because the Senate provision was abandoned, the possibility of this particular conflict over jurisdiction no longer exists. See Recent Decisions, Labor Law — Union Representing Supervisory Employees Is a “Labor Organization Representing Employees” Within the Meaning of Section 301(a) of the Labor Management Relations Act, 42 Notre Dame Laywer 534, 539-40 (1967). Concededly, our decision today may evoke images of Alice in Wonderland’s frustrations with Humpty Dumpty (" ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ”). But see Environmental Defense Fund, Inc. v. Costle, 631 F.2d 922, 927 (D.C.Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 923, 66 L.Ed.2d 841 (1981) (quoted with approval in Buttrey v. United States, 690 F.2d 1170, 1175 (5th Cir.1982)) (recognizing that “it is possible for a term to have different meanings, even in the same statute”). . See International Organization of Masters, Mates and Pilots v. NLRB, 351 F.2d 771, 775 (D.C.Cir.1965), where the court remarked in dictum that “it may well be” that an agreement entered into by a bargaining unit containing no statutory employees would be unenforceable under § 301 “since that section deals only with ‘contracts between an employer and a labor organization representing employees.’ ” (Emphasis in original). See also A.H. Bull Steamship Co. v. National Marine Engineers’ Benefícial Ass’n, 250 F.2d 332 (2d Cir.1957), cert. denied, 355 U.S. 932, 78 S.Ct. 411, 2 L.Ed.2d 414 (1958), overruled implicitly in United States v. National Marine Engineers Beneficial Ass’n, 294 F.2d 385 (2d Cir.1961), and explicitly in National Marine Engineers Beneficial Ass’n v. Globe Seaways, Inc., 451 F.2d 1159, 1160 n. 1 (2d Cir.1971); Retail Clerks, Local 330 v. Lake Hills Drug Co., 255 F.Supp. 910 (W.D.Wash. 1964), overruled by Dente v. Masters, Mates and Pilots, 492 F.2d 10, 12 (9th Cir.1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974).

3799150-18783

MEMORANDUM AND ORDER TROUTMAN, District Judge. In this action plaintiffs charge defendants with violations of the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, certain Pennsylvania statutes, the Fourteenth Amendment, and Articles I and VIII of the Pennsylvania Constitution. The named plaintiffs and the class of persons they purport to represent own properties in residential areas of Reading and Berks County, populated predominantly by non-whites, which have allegedly been assessed for taxation by defendants at disproportionately higher values than similar properties located in substantially all-white areas. Defendants, members of the Board of Assessment Appeals of Berks County, are alleged to have systematically and intentionally discriminated against plaintiffs by assessing their properties at higher percentages or ratios of actual value causing plaintiffs to pay disproportionately high taxes. Plaintiffs do not seek a reduction in their individual assessments per se; they pray for preliminary and permanent injunctive relief restraining such alleged violations of state and federal law by requiring a reassessment, under this Court’s immediate and continuous supervision, of all owner-occupied residential property in defendants’ jurisdiction and the yearly submission of proof that such new assessments, are uniform and nondiscriminatory. Defendants have responded with a motion to dismiss the complaint for lack of subject-matter jurisdiction under F.R.Civ.P. 12(b)(1) which is now before the Court. “All persons within the jurisdiction of the United States shall have the same right in every State * * * to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pain, penalties, taxes, licenses, and exactions of every kind, and to no other.” The complaint sets forth violations of both federal and state law. Counts I and II allege violations of 42 U.S.C. §§ 1981 , 1983 and the Fourteenth Amendment in that defendants assessed plaintiffs' property at disproportionately high ratios compared to assessments of similar property in exclusively white areas of population concentration. Counts III and IV allege that such practices contravene Article I, § 2 and Article VIII, § 1 of the Pennsylvania Constitution as well as 72 P.S. § 5344(a). Count V charges that defendants failed to make annual assessments of “properties in predominantly or exclusively white areas which are increasing in value and in substantially non-white areas which are decreasing in value.” Finally, Count VI characterizes defendants’ practice as unlawful discrimination based on economic status in violation of the Equal Protection Clause of the Fourteenth Amendment. “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” The keystone of defendants’ motion to dismiss for lack of subject-matter jurisdiction rests on the Tax Injunction Act, 28 U.S.C. § 1341, which provides: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” As defendants characterize this action, this federal court prima facie lacks jurisdiction because the injunctive relief sought would perforce require the invalidation of the current assessments of relevant properties in the county. And, as plaintiffs have a plain, speedy and efficient remedy in the courts of Pennsylvania, i. e., by filing a bill in equity or in pursuing the applicable statutory procedure for assessment appeals, this Court must refrain from intermeddling into what is a purely localized fiscal function conducted by county officials in their administrative capacity. Plaintiffs counter that the statutory procedure for assessment appeals is defective and, therefore, inadequate for two reasons : first, individual appeals of assessments by plaintiffs would entail a piecemeal, cumbersome and lengthy process which, in the final analysis, would not yield the broad injunctive relief they now seek. Second, this procedure is attacked on the ground that it is incapable of dealing effectively with and eradicating alleged neighborhood-by-neighborhood discrimination because the proof required in each assessment appeal would involve a comparison of the subject property only with similar properties in the same area. This procedure, plaintiffs contend, could only perpetuate the alleged neighborhood-by-neighborhood pattern of discrimination. In addition, it is asserted that equitable relief is not available under current pertinent Pennsylvania cases which have uniformly narrowed the taxpayers’ remedy to an attack on assessments by the statutory procedure, rather than by a bill in equity, thus leaving plaintiffs without a plain, speedy and efficient remedy in the state courts. Finally, plaintiffs urge that the paramount national policy as codified in the Civil Rights Acts and refined by thousands of court decisions overrides the restrictive federal jurisdictional limits of the Tax Injunction Act. “A11 taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” “(a) It shall be the duty of said board [of Assessment Appeals], in each county to which this act applies, to make and have supervision of the making of annual assessments of persons, property and occupations now or hereafter made subject to assessment for taxation for county, borough, town, township, school, poor and institution district purposes, and to make and have supervision of listing and valuation of property excluded or exempted from taxation. In making assessments of property at less than actual value, it shall accomplish equalization with other properties within the taxing district. The making of triennial assessments as provided by existing law is hereby abolished.” [Emphasis added.] The sole issue raised by defendants’ motion is whether the jurisdictional limitation of § 1341 should apply in this case, and in resolving the question, we are required to canvass the gamut of remedies which are available to plaintiffs in the courts of Pennsylvania by utilizing the statutory procedures or by proceeding in equity. At the outset, we note that the applicable procedure to appeal assessments under Pennsylvania law is set forth in 72 P.S. §§ 5348, 5349, and 5350. After assessments are completed, notice must be given to property owners whose assessments have been increased or decreased. § 5349 provides that persons who are aggrieved may appeal by notifying the Board of Assessment Appeals (defendants herein) prior to September 1. Thereafter from September 1 to October 1, the Board must hear all the assessment appeals, after which appropriate orders for changes are incorporated into the tax rolls and sent to the appropriate political subdivisions. 72 P. S. § 5349. The taxpayer may appeal to the Court of Common Pleas, § 5350, where, after a plenary hearing de novo and a finding that the assessment was erroneous, the Court may award an exoneration or restitution under § 5350d. § 5350 requires the Court “to make such changes therein as may be right and proper”, and further provides: “ * * the court shall determine, from the evidence submitted at the hearing, what ratio of assessed value to actual value was used generally in the taxing district, and the court shall direct the application of the ratio so found to the value of the property which is the subject matter of the appeal, and such shall be the assessment. •» -X- * ” “Any person aggrieved by any assessment, whether or not the value thereof shall have been changed since the preceding annual assessment, or any taxing district having an interest therein, may appeal to the board for relief. Any person or such taxing district desiring to make an appeal shall, on or before the first day of September, file with the board an appeal, in writing, * * * ” Plaintiffs argue that the comparison of valuation is limited to properties within the same neighborhood to support the proposition that the statutory remedy is inadequate. Appeal of Brooks Building, 391 Pa. 94, 137 A.2d 273 (1958); Appeal of Rick, 402 Pa. 209, 167 A.2d 261 (1961). As plaintiffs put it, these remedies are “unsuited for the correction of discrimination between entire neighborhoods and are thus inadequate remedy for the correction of wholesale discrimination.” (Brief at page 9) Moreover, plaintiffs point to the statutory burden imposed upon them to prove that an individual assessment is improper, 72 U.S. § 5350(b) , and argue that the procedure unfairly pits the property owner, with limited resources and experience, against the board, armed with the expertise developed in numerous assessments and appeals therefrom. Thus, from the foregoing overview of the assessment appeal procedure outlined by statute, plaintiffs contend that the precise relief sought by plaintiffs is not within the power of the Board of Assessment Appeals to grant. So construed, plaintiffs understandably contend that the statutory remedy is “inadequate” and, therefore, not a “plain, speedy and efficient remedy” within the meaning of § 1341. Such conclusion presupposes that the statute will be so literally and limitedly construed as to preclude the resolution of inequitable neighborhood-by-neighborhood assessments. True, the statute, on its face, is understandably designed to take care of the usual, ordinary and expected situation involving individual appeals within a taxing district and a neighborhood. However, we cannot assume that the use, for example, of multiple or mass appeals within and across neighborhood lines or other possible procedures combined with the ingenuity expected of assessment authorities to reach the inequities, if any, presented and proved, will not obtain a decision on the issues presented notwithstanding facial deficiencies as to the individual taxpayer’s remedies in the statute. Indeed, something not unlike a mass appeal is contemplated by the statute. Specifically, § 5350i provides: “(b) In any appeal by a taxable from an action by the board, the board shall have the power and duty to present a prima facie case in support of its assessment, to cross-examine the taxable’s witnesses, to discredit or impeach any evidence presented by the taxable, to prosecute or defend an appeal in any appellate court, and to take any other necessary steps to defend its valuation, assessment and assessment ratio.” “The corporate authorities of any borough, town, township, school and poor district, who may feel aggrieved by any assessment of property or subjects of taxation for its corporate purposes, shall have the right to appeal therefrom in entirety or by individual assessments to the board or to the court of common pleas or the Superior or Supreme Court in the same manner, subject to the same procedure, and with like effect as if such appeal were taken by a taxable with respect to his assessment, and in addition may take an appeal from any decision of the board or court of common pleas as though it had been a party to the proceedings before such board or court even though it was not such a party in fact.” The procedure utilized by a Board of Assessment Appeals to dispose of such an appeal by a school district, for example, must encompass the simultaneous consideration of many properties. Here the relief sought by plaintiffs involves the identical proposition — simultaneous consideration of many properties. Methods employed by the Board in discharging its statutory duties outlined in § 5350i are logically no less applicable or inappropriate for reaching the end plaintiffs seek here. Thus, in accordance with the congressional intention expressed in § 1341, the state administrative authorities should be given the first opportunity to face and resolve the issue. Failing in that, an appeal to the state court is provided by the statute. Here, the ingenuity of the state court in the realistic and non-technical construction of the state statute can reasonably be assumed to reach the issues fairly presented. That the state authorities and the state courts should so construe the state statute as to reach the issues rather than evade them and thus force the plaintiffs into the federal courts is not and should not be an unexpected result. No precedent has been cited establishing that the state assessment authorities and the courts will not squarely meet and resolve the issues raised without federal intervention. Therefore, we cannot, at this time, reach the conclusion that the plaintiffs are without a plain, speedy and efficient remedy in the state courts. Rather, until the state authorities and the state courts demonstrate otherwise, we find to the contrary. Turning to the second prong of plaintiffs’ attack, that equity does not have jurisdiction in a case of this nature, plaintiffs cite two recent cases: Allegheny Co., So. Dist. Tax Assess. AP., 7 Pa.Cmwlth.Ct. 291, 298 A.2d 643 (1972) and Rochester & Pgh. C. Co. v. Ind. Co. Bd. of A., 438 Pa. 506, 266 A.2d 78 (1970). In Rochester, the plaintiff sought to enjoin the application of a revised method of taxation on the grounds that the rates and classifications violated the Equal Protection Clause of the Fourteenth Amendment and the Uniformity Clause of the Pennsylvania Constitution, Art. VIII, § 1. The Supreme Court affirmed the dismissal of the bill in equity because the taxpayer had an adequate remedy at law, stating: “ * * * [W]hat is required to confer jurisdiction on an equity court is the existence of a substantial question of constitutionality (and not a mere allegation) and the absence of an adequate statutory remedy.” [footnote omitted] 438 Pa. 508, 266 A.2d 79. However, the Court did not hold that equity jurisdiction could never be invoked, only that “ * * * Expertise in this field lies in the administrative bodies, and we should be slow, as far as jurisdiction is concerned, to favor equity courts over them. * * * ” Fn. 1 at 438 Pa. 508, 266 A.2d 79. Later, in the Allegheny case, the Commonwealth Court sustained preliminary objections to a bill in equity brought by sixteen municipalities and a number of taxpaying residents of said municipalities, which attacked a system of triennial assessments as a violation of the Equal Protection Clause of the Fourteenth Amendment and Article VIII, § 1 of the Pennsylvania Constitution. Relief sought included an order that all increased asssessments to held in abeyance ; a suspension of all such increases; and an injunction against the levy and collection of any taxes due to the increased assessments. Citing Rochester, the Court stated: “ * * * [E]ven a direct challenge to ‘the intrinsic constitutionality of a taxing scheme’ is not alone sufficient to confer jurisdiction on a Court of Equity — there must also be the absence of an adequate remedy at law.” 7 Pa.Cmwlth.Ct. 298, 298 A.2d 647. Then, characterizing the gist of the action as follows, “And because it is the amount of a property owner’s assessment which is the basic issue, the Board ought to be permitted to pass upon the assessment in the first instance,” Id. at 302, 298 A.2d 648. the Court rejected plaintiffs’ arguments that the Board was incompetent to pass upon constitutional questions, that a multiplicity of actions would thus be encouraged, and that plaintiffs were suffering irreparable harm. We conclude, however, that these cases are not convincing support for the proposition plaintiffs have advanced here. A series of other cases indicates that equitable jurisdiction is appropriate in certain, albeit limited, circumstances. Narehood v. Pearson, 374 Pa. 299, 96 A.2d 895 (1953); Y. M. C. A. v. City of Reading, 402 Pa. 592, 167 A.2d 469 (1961); Crosson v. Downingtown Area School District, 440 Pa. 468, 270 A.2d 377 (1970); Campbell v. Coatesville Area School District, 440 Pa. 496, 270 A.2d 385 (1970). See also Phipps v. School District of Pittsburgh, 111 F.2d 393 (3rd Cir. 1940); Guerra v. City of Philadelphia, 30 F.Supp. 791 (E.D.Pa.1940). Plaintiffs allege a substantial constitutional question, whether the disparity in assessments on a neighborhood-by-neighborhood basis violates the uniformity requirements of the State Constitution. In ■ addition, only an equitable remedy is sought, namely, injunctive relief, which does not seek primarily to invalidate or adjust the individual plaintiff’s assessments, but is designed to remedy assessment patterns which serve defendants’ alleged illegal policy of intentional discrimination against non-white residential neighborhoods. The particular pitch of this case, we believe is such that it is cognizable in a court of equity in Pennsylvania, despite the contracted scope of equitable jurisdiction. Under the Tax Injunction Act, federal courts are divested of subject-matter jurisdiction when the remedy in state courts is “plain, speedy and efficient”. The test is whether the remedy is adequate, Spector Motor Service, Inc. v. O’Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573 (1951), and it need not be “the best remedy available or even equal to or better than the remedy which might be available in the federal courts”, Bland v. McHann, 463 F.2d 21, 29 (5th Cir.) cert. denied 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (1973). Even the unlikelihood of success in the state court is not sufficient to carry a case beyond the prohibition of the Injunction Act, Non-Resident Taxpayers Association v. Philadelphia, 478 F.2d 456 (3d Cir. 1973). The statute, moreover, codifies the longstanding, deeply rooted principle of federal equitable jurisdiction which restrains the federal courts from interference with the internal fiscal operations of the states. Great Lakes Dredge & Dry Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1942); Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447 (1932). In Rodgers, the Court stated: “The scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal rights may be preserved without it.” 284 U.S. 525, 52 S.Ct. 219.