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4170902-27358	MEMORANDUM & ORDER YOUNG, District Judge. I. INTRODUCTION The motion presently before this Court arises from a patent infringement suit filed by Multilayer Stretch Cling Film Holdings, Inc. (“Multilayer”), the assignee of U.S. Patent No. 6,265,055 (the “'055 Patent”), against Berry Plastics Corporation (“Berry”). Following the claim construction hearing and the filing of the Markman order, Berry filed its present motion for summary judgment, arguing that, as matter of law, none of Berry’s accused products infringe the '055 Patent as- construed. Arguments on this motion were heard on July 17, 2014, at which time the Court took the matter under advisement. Min. Entry, July 17, 2014, ECF No. 140. For the reasons stated herein, the Court now GRANTS Berry’s motion for summary judgment. A. Procedural Posture Multilayer filed a complaint against Berry in the Western District of Tennessee on February 10, 2012, alleging that the latter’s stretch films infringed the '055 Patent. Compl. ¶ 11, ECF No. 1. On April 10, 2012, Berry filed its answer, along with defenses and counterclaims, against Multilayer. Def.’s Answer, Affirmative Defenses & Counterels. Compl., ECF No. 14. Two weeks later, Berry filed a motion for summary judgment, Berry Plastics Corp.’s Mot. Summ. J., ECF No. 17, which was denied on September, 28, 2012, Electronic Order, ECF No. 55. Multilayer had also initiated several lawsuits in the Western District of Tennessee, against additional companies besides Berry, alleging infringement of the same '055 Patent. See Order Following Claim Construction Hr’g (“Markman Order”) 1 n. 1, ECF No. 104. The then four remaining cases were consolidated for the purpose of claim construction before Judge McCalla in Multilayer Stretch Cling Film Holdings, Inc. v. MSC Marketing & Technology, Inc. et al., No. 12-ev-02112 (the “MSC Marketing litigation”). Markman.Order 1. On November 8, 2013, Judge McCalla signed an order (the “Markman Order”) construing thirteen terms of the '055 Patent. Id. at 102-06. On the same day, Judge McCalla entered a separate proposed order (the “Proposed Order”) addressing one specific term of the patent that had not been addressed in the Mark-man Order. Ct.’s Proposed Construction “Wherein Each of Said Two Outer Layers And Each Of Said Five Inner Layers Have Different Compositional Properties When Compared To A Neighboring Layer” (“Proposed Order”), ECF No. 105. In this order, Judge McCalla gave the parties fourteen days to file supplemental briefs on the proposed construction. Id. at 9. The parties filed their briefs on November 22, 2013. Supplemental Br. Defs. Clarification Ct.’s Proposed Claim Construction, case docket No. 12-cv-02112, ECF No. 98; Multilayer’s Supplemental Claim Construction Br., case docket No. 12-ev-02112, ECF No. 99. The MSC Marketing litigation, however, was dismissed with prejudice after the parties agreed to a settlement. Stipulation Dismissal With Prejudice, case docket No. 12-cv-02112, ECF No. 101; Judgment, case docket No. 12-cv-02112, ECF No. 102. As a, .result, a final order has not been entered on the remaining claim term. On March 14, 2014, Berry filed a motion for partial summary judgment. Def. Berry Plastics Corp.’s Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055, ECF No. 120; Def. Berry Plastics Corp.’s Br. Supp. Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055 (“Berry’s Br.”), ECF No. 120-1. Two months later, Multilayer filed a brief in opposition to Berry’s motion. Resp. Opp’n Berry Plastics Corp.’s Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055 (“Multilayer’s Opp’n”), ECF No. 129. Berry filed a reply on June 2, 2014. Def. Berry Plastics Corp.’s Reply Br. Supp. Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,-055 & Resp. Multilayer’s Statement Additional Facts (“Berry’s Reply”), ECF No. 134. B. Jurisdiction 28 U.S.C. sections 1331 and 1338(a) confer upon this Court jurisdiction to hear the instant matter, as the claims at issue arise under federal patent law. C. Factual Summary The evidentiary record in this matter is replete with helpful and detailed information regarding all aspects of the production and manufacture of the various stretch-films. Though both informative and necessary for the global claim, given the focused nature of this motion, and for the sake of concision, the facts outlined below are restricted to those which directly relate to the infringement claim presently before this Court. This matter arises from the alleged infringement of the '055 Patent, issued on July 24, 2001, to David Simpson and Terry Jones. Compl., Ex. A, U.S. Patent No. 6,265,055 C3 (“U.S. '055 Patent”), ECF No. 1-3. Multilayer is the present assign-ee of all “right, title and interest in the '055 Patent.” Compl. ¶ 9. The '055 Patent is titled “Multilayer Stretch Cling Film” and relates to a “multi-layer stretch film comprising at least 7 layers and having excellent mechanical properties and stretch film performance.” U.S. '055 Patent, Abstract. Multilayer alleges that Berry’s stretch-film products infringe “at least claim 1 of the '055 [PJatent.” Compl. ¶ 11. In response, Berry raises a number of defenses, including invalidity, non-infringement, and inequitable conduct. Def.’s Answer Affirmative Defenses & Countercls. Compl. 2-3, ECF No. 14. 1. The '055 Patent The '055 Patent relates to a “multi-layer stretch film comprising at least 7 layers .... comprising] two outer, or skin layers ... [and] at least five internal layers to assist in producing mechanical strength and stretchability.” U.S. '055 Patent, col. 1:51-58. The patent-in-issue is described in thirty-four claims, of which two, claims 1 and 28, are independent. U.S. '055 Patent; see also Markman Order 13. It is the alleged non-infringement of these nearly identical claims which is presently before this Court. See Berry’s Br. 2-4. Claim 1 teaches: A multi-layer, thermoplastic stretch wrap film containing seven separately identifiable polymeric layers, comprising: (a) two identifiable outer layers, at least one of which having a cling performance of at least 100 grams/inch, said outer layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, and ultra low density polyethylene resins, said resins being homopolymers, copolymers, or terpolymers, of ethylene and alpha-olefins; and (b) 'five identifiable inner layers, with each layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, ultra low density polyethylene, and metallocene-catalyzed linear low density polyethylene resins; said resins are homopolymers, copolymers, or ter-polymers, of ethylene and C3 to C20 alpha-olefins; wherein each of said two outer layers and each of said five inner layers have different compositional properties when compared to a neighboring layer. U.S. '055 Patent PagelD 19-20. Claim 28 teaches: A multi-layer, thermoplastic stretch wrap film containing seven polymeric layers, comprising: (a) two outer layers, at least one of which having a cling performance of at least 100 grams/inch, said, outer layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, and ultra low density polyethylene resins, said resins being homopolymers, copolymers, or terpolymers, of ethylene and alpha-ole-fins; and (b) five inner layers, with each layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, ultra low density polyethylene, and metallocene-cata-lyzed linear low density polyethylene resins; said resins being homopolymers, copolymers, or terpolymers, of ethylene and C3 to C20 alpha-olefins, wherein at least one of said inner layers comprises a metallocene catalyzed linear low density polyethylene resin with a melt index of 0.5 to 3 dg/min and a melt index ratio of 16 to 80; and wherein each of said two outer layers and each of said five inner layers have different compositional properties when compared to a neighboring layer. Id. at PagelD 24 col. 2:4-26. 2. Claim Construction At the request of the parties, during the claim construction process that took place last November, Judge McCalla construed thirteen terms, including, inter alia, the Markush limitations for the inner layers of the claimed multilayer film and the term “linear low density polyethylene” (“LLDPE”). Markman Order 62-82. With regard to the former, Judge McCalla agreed with the construction proposed by Berry and construed the Markush group of element (b) in claims 1 and 28 as closed. Markman Order 63. In doing so, Judge McCalla rejected Multilayer’s contention that the claims taught blends of resins from two or more different classes, at least in the seven layers taught by the patent. See id. at 62-63; see also id. at 48-57 (discussing in more depth Multilayer’s related argument regarding the Mar-kush group for the outer layers of the film). This construction is set out below: Element (b) of Claim 1; Claim 28 _Court’s Construction “five identifiable inner layers, with each layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, ultra low density polyethylene, and metallocene-catalyzed linear low density polyethylene resins” “each of five identifiable inner layers must contain only one class of the following resins, and no other resin(s): linear low density polyethylene resins, very low density polyethylene resins, ultra low density polyethylene resins, or metallocene-catalyzed linear low density polyethylene resins”_ Id. at 104 (emphasis added to court’s construction). By contrast, in construing the term “LLDPE” Judge McCalla favored the construction proposed by Multilayer, declining to narrow the definition of LLDPE to specific catalyzing agents or densities and instead proposing a definition solely based upon the “branching architecture” of the resins. Id. at 64-82. The judge’s- construction is set out below: Claim 1; Claim 28_Court’s Construction_ “linear low density polyethylene” “a class of copolymers of ethylene and alpha-olefins, which are characterized, by relatively straight'polymer chains with short chain branching and little or nó long chain _branching”_ Id. at 104 (emphasis added). 3. The Accused Films Multilayer asserts that at least five stretch-films manufactured by Berry infringe the patent-in-issue. Statement Material Facts Not Dispute Supp. Def. Berry Plastics Corp.’s Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055 (“Berry’s Facts”) ¶4, ECF No. 12Í. The allegedly infringing films are: the Revolution machine films, R-122 and R-122Q; the Stratos film; the T-Maehine film, and the Max Plus 2 film (jointly “the Accused Films”). Id. The Accused Films all have outer and inner layers, with the inner layers composed of blends of resins from the following classes: metallocene-catalyzed linear low density polyethylene (“mLLDPE”), LLDPE; low density polyethylene (“LDPE”), .polypropylene (“PP”), and ultra low density polyethylene (“ULD-PE”). Def.’s Objections & Resps. Pl.’s First Set Interrogs. (“Berry’s Resp. In-terrogs.”) 9-10, ECF No. 64. II. ANALYSIS A. Summary Judgment Standard “Summary judgment is as available in patent cases as in other areas of litigation.” Continental Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1265 (Fed. Cir.1991) (citing Chore-Time Equip., Inc. v. Cumberland Corp., 713 F.2d 774, 778-79 (Fed.Cir.1983)). Summary judgment is proper if the moving party shows, based on the materials in the record, 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). A dispute is genuine where- “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Conclusory allegations, improbable inferences, and unsupported speculation, are insufficient to establish a genuine dispute of fact.” Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146 (1st Cir.2013) (quoting Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999)); see also Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (concluding that “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient”). Whether a fact is material will depend upon the substantive law of the case, and only factual disputes that might affect the outcome of the suit can properly preclude summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When adjudicating a motion for summary judgment, a court must view the record “in the light most favorable to the non-moving partly],’.’ drawing all reason able inferences in the non-movant’s favor. Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir.2008). Summary judgment will be granted where, after adequate time, the non-moving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to [its] case, and on which [it] will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. Prematurity In its brief in opposition to the instant motion, Multilayer raises both procedural and substantive arguments against the granting of summary judgment. See Multilayer’s Opp’n 1. Procedurally, Multilayer argues that the motion is premature because claim construction is incomplete, Berry has been uncooperative in discovery, and expert discovery has yet to be undertaken. Id. at 2. This Court, after review, concludes that the instant motion is ripe. An analysis of the record does not evidence any insufficiency in discovery undertaken, and whether expert discovery is necessary in this matter is irrelevant. Although the discovery period is yet to expire, see Second Am. Rule 16(B) Scheduling Order 2, ECF No. 116, Multilayer has been aware of Berry’s intention to file this motion since February 12 this year, Multilayer’s Opp’n, Ex. A, Email to Multilayer’s Attorneys, ECF No. 129-1 (“Berry plans to file a motion for summary judgment shortly.... The Court’s November construction makes clear that the [Accused Films] fall outside the scope of the asserted claims of the '055 Patent.”), and Multilayer has not otherwise faced any true barrier to obtaining expert discovery. Finally, though a final claim construction order has not been entered, all terms relevant to the instant motion have been construed, see Markman Order, and for the purposes of this motion, the Court follows Judge McCalla’s able construction. C. Non-Infringement In order to infringe a patent claim, the accused device must embody each and every element of that claim, either literally or under the doctrine of equivalents. Stewart-Wamer Corp. v. City of Pontiac, Mich., 767 F.2d 1563,1570 (Fed.Cir.1985). “A patent infringement analysis consists of two steps: first the patent claims are construed, [and] second the properly-construed claims are compared to the product accused of infringement.” In re Omeprazole Patent Litig., 490 F.Supp.2d 381, 415 (S.D.N.Y.2007) (citing Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996)), aff'd, 281 Fed.Appx. 974 (Fed. Cir.2008). The first step of this analysis— claim construction—is a matter of law, see Markman, 52 F.3d at 977-78, and thus it is the court’s role to “discern the meaning of the claim language,” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999) (citing Markman, 52 F.3d at 979). The second step—the determination whether the construed claims read on the accused products—is, by contrast, a matter of fact. Mannesmann Demag Corp. v. Engineered Metal Prods. Co., 793 F.2d 1279, 1282 (Fed.Cir.1986). Where, however, the parties do not dispute relevant facts but instead dispute the construction of a claim, “the question of literal infringement collapses into one of claim construction and is thus amenable to summary judgment.” MBO Labs., Inc. v. Becton, Dickinson & Co., 783 F.Supp.2d 216, 220-21 (D.Mass.2011) (Stearns, J.) (citing Athletic Alts., Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1578 (Fed.Cir.1996)), aff'd, 467 Fed.Appx. 892 (Fed.Cir.2012). In the instant motion, Berry contends that none of the Accused Films infringe the '055 Patent because each lacks five inner layers that meet the requirements of claims 1 and 28. Berry’s Br. 12. More specifically, Berry alleges that the Accused Films’ inner layers: (a) impermissibly include blends of classes of resins from the Markush group and (b) impermissibly include resins from outside the Markush group. Id. In opposition, Multilayer contends that there remains a genuine issue of material fact, namely whether each of the resins used in the inner layers of the Accused Films can be characterized as an LLDPE resin, as the term was construed at the Markman hearing. Multilayer’s Opp’n 14. Multilayer suggests that all of the listed resins “all fall within a single class,” and, as a consequence, a combination of the listed resins “do[es] not constitute [a] blend[ ].” Id. Therefore, none of the resins allegedly used in the inner layers of the Accused Films fall outside the Court’s construction of the term LLDPE. Id. at 12-16. This Court does not agree. For the reasons that follow, this Court GRANTS Berry’s motion for summary judgment. 1. Impact of Claim Construction Following the claim construction hearing, the phrase “each [inner] layer being selected from the group consisting of [LLDPE, VLDPE, ULDPE and mLLDPE]” was construed to describe a “closed Markush group,” not permitting blends. Markman Order 62-63; see also id. at 55 (“[T]here is nothing in the language of the claim itself to indicate blends of the specifically listed polymers.”) (emphasis added); id. at 63 (“[E]aeh of five ... inner layers must contain only one class of ... resins, and no other resin(s) ....”) (emphasis added). Relevantly, Judge McCalla also construed the term “LLDPE” to mean “a class of copolymers of ethylene and alpha-olefins, which are characterized by relatively straight polymer chains with short chain branching and little or no long chain branching.” Id. at 82 (emphasis added). In reaching this conclusion, Judge McCalla acknowledged that this definition was sufficiently broad to encompass mLLDPE resins, as well as VLDPE and ULDPE. Id. at 74-76, 81. The inner layers of all five of the Accused Films include blends of resins. Ber ry’s Br. 12. More specifically, the inner layers of the Accused Films include layers with blends of mLLDPE and LLDPE and blends of ULDPE and LLDPE. See Berry’s Resp. Interrogs. 9-10; Multilayer’s Opp’n 12. Thus, prima facie, the internal layers of the Accused Films do not appear to be taught by the closed Markush group limitation, and thus cannot infringe the asserted claims of the '055 Patent. See Berry’s Br. 14-15. Multilayer argues, however, that as it is “undisputed that [mLLDPE], LLDPE and ULDPE each fit within the Court’s construction of linear low density polyethylene .... [mLLDPE, LLDPE, ULDPE and VLDPE] all fall within a single class of resins.” Multilayer’s Opp’n 15, 17. Thus, it necessarily follows that a combination of two or more resins from separate classes, for example mLLDPE and LLDPE, “do[es] not constitute [a] blend[].” Id. at 14. Multilayer’s interpretation is flawed. 2. Permissibility of Blends This motion turns on a question of interpretation: does the '055 Patent, given the broad construction of LLDPE, permit blends of resins from at least two of the specified classes taught in claims 1 and 28—mLLDPE, LLDPE, ULDPE and VLDPE—in an inner layer that is subject to the Markush group limitation? Turning first to the construction of the Markush limitation, it is apparent that the permissibility of blends of resins within a film’s inner layer was directly considered and rejected during claim construction. See, e.g., Markman Order 98 (holding that claims 1 and 28 “do not contemplate blends of different resins”); id. at 55 (“Element (a) of Claim 1 and element (a) of Claim 28 do not contain any qualifying language to indicate that blends of resins are within the scope of the independent claims.”); id. (“[T]here is nothing in the language of the claim itself to indicate blends of the specifically listed polymers. ”)(emphasis added). The definition ascribed to LLDPE is acknowledged to be sufficiently broad to encompass mLLDPE, see id. at 74 (“LLDPE ... is a broader term and includes poly-ethylenes that can be produced using various catalysts.”), VLDPE, and ULDPE, see id. at 75-76. The fact that a resin can be described as both an mLLDPE resin and also as a broader LLDPE resin does not mean that the combination, in an inner layer of a stretch film, of an mLLDPE resin and a LLDPE resin catalyzed using an agent other than metallocene does not constitute a prohibited blend. Though resins within the- classes of mLLDPE, VLDPE, and ULDPE can (also) broadly' be characterized as LLDPE resins, a resin within one of these separate specified classes does not lose its classification as such merely because -it may also be described as a member of another broader class. In directly addressing" this issue, Judge McCalla was emphatic that blends of the specifically listed classes were not taught by the patent. Id. at 63 (construing language in element (b) of claims 1 and 28 and drawing direct parallels to analysis of element (a), which directly rejected the suggestion that the claims taught blends of. the enumerated resins, see id. at 55, 57). At this juncture, to permit blends would impermissibly require the Court to ignore the “specific limitations” of the '055 Patent, Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 797 (Fed.Cir.1990), and for the aforementioned reasons, the Court concludes that blends of resins from two or more of the specified classes are not taught by the '055 Patent. It is uncontested that at least one of the inner layers of the Accused Films contains blends of resins from the classes of mLLDPE, ULDPE, and LLDPE—all classes of resins separately specified in claims 1 and 28. See Berry’s Resp. Inter-rogs. 9-10; Multilayer’s Opp’n 12. Because, as discussed above, the '055 Patent does not teach blends of the specifically listed classes of resins, the Accused Films do not do not “embody every element” of claim 1 and claim 28, Stewart-Warner, 767 F.2d at 1570, and thus do not infringe the '055 Patent. 3. Indefiniteness Even were the Court to adopt Multilayer’s interpretation of claims 1 and 28 of the '055 Patent—that “[i]f all of the resins within a stretch film can be characterized as [LLDPE] as that term [was] construed by [Judge MeCalla], then they all fall within a single class of resins and do not constitute blends,” Multilayer’s Opp’n 14— this would avail Multilayer nothing. Contrary to Multilayer’s argument, the necessary consequence of an interpretation which has all resins falling within a single class is not that all combinations and permutations are thus permissible, but rather it is that claims 1 and 28 are indefinite and thus invalid. See, e.g., Nautilus, Inc. v. Biosig Instruments, Inc., — U.S. -, 134 S.Ct. 2120, 2125, 189 L.Ed.2d 37 (2014). The Patent Act requires that every patent specification “conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor ... regards as the invention.” 35 U.S.C. § 112(b). A patent is indefinite where its claims “fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.” Nautilus, 134 S.Ct. at 2124. In evaluating the “definiteness” of a patent, the Court adopts the perspective of “someone skilled in the relevant art ... at the time the patent was filed,” reading all claims “in light of the patent’s specification and prosecution history.” Id. at 2128. Though “[s]ome modicum of uncertainty ... is the ‘price of ensuring the appropriate incentives for innovation,’ ” the patent must “afford clear notice of what is claimed,” and its claims must be sufficiently precise to “inform those skilled in the art about the scope of the invention with reasonable certainty.” Id. at 2128-29 (citations omitted); see also id. at 2129 (“[T]he definiteness requirement ... mandates clarity....”). Thus, while the double inclusion of elements within a Markush group is permissible, see Markman Order 76-77, (citing Manual of Patent Examining Proc. (“M.P.E.P.”) § 2173.05Ü (9th ed., 2014)); Ex Parte Dale E. Hutchens & Norman Cohen, Appeal No. 1996-3292, 1996 WL 1749363, at 1 (Bd.Pat.App. & Interf.) (noting that “there is no automatic rule against double inclusion” (internal quotation marks omitted)), care must be taken to ensure that this act does not then make the claim indefinite. See Ex Parte Hutchens, 1996 WL 1749363 at 1; see. also Ex parte Ionescu, 222 U.S.P.Q. 537, 1984 WL 63050, at *4 (Pat.& Tr. Office Bd.App. Jan. 12,1984). Multilayer’s interpretation is not only a. distortion of the Markush group taught by the patent, but it also renders independent claims 1 and 28 indefinite. Adopting this interpretation would teach a stretch film with inner layers composed of an almost indefinite number of combinations of resins that fall with the (broadly construed) class of LLDPE resins, such that “persons skilled in the art [could not] determine the metes and bounds of the claimed inven tion.” M.P.E.P. § 2173.05(h). Understood in this manner, the claims fail to narrow the taught composition of the layers to the degree necessary to provide “reasonable certainty” as to the scope of the claim. Nautilus, 134 S.Ct. at 2124. Thus, this interpretation of claims 1 and 28 would render them indefinite, and the '055 Patent invalid. Given, however, that patents are presumed valid, 35 U.S.C. § 282(a), and that the general modus operandi of the court is to “protect the inventive contribution of patentees”—and accordingly to “find[ ] claims indefinite only if reasonable efforts at claim construction prove futile”—this Court does not elect to grant summary judgment on this basis, Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed.Cir.2001), abrogated on other grounds by Nautilus, 134 S.Ct. at 2120. Moreover, having concluded that the Accused Films do not infringe the '055 Patent as construed, it is unnecessary to address Berry’s alternative arguments. III. CONCLUSION For the aforementioned reasons, this Court GRANTS Berry’s motion for summary judgment, ECF No. 120. SO ORDERED. . Of the District of Massachusetts, sitting by designation See Transfer, June 21, 2012, ECF No. 33. . A thorough review of the patent prosecution history can be found in the Markman Order. Markman Order 16-19. In sum, the '055 Patent has been issued three reexamination certificates and two certificates of correction by the U.S. Patent and Trademark Office. See id. The third reexamination certificate was issued August 2, 2011. Id. at 17. The final claim language of Claim 1 can be found on the Certificate of Correction issued July 14, 2009. U.S. '055 Patent PagelD 19-20. The final claim language of Claim 28 can be found in second reexamination certificate number 6761. Id. at PagelD 24 col. 2:4-26.
9267837-12281	ORDER DENYING PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT AND TO DISMISS NEW ENGLAND CAPITAL AS A PLAINTIFF, AND GRANTING SANCTIONS JAMES LAWRENCE KING, Senior District Judge. THIS CAUSE is before the Court upon Plaintiffs’ Motion for Summary Judgment, Plaintiffs’ Motion to Dismiss New England Capital Investments (“New England Capital”) as a Plaintiff in this Action, and Defendants’ Motion for an Order Compelling Plaintiffs to Designate and Produce a Rule 30(b)(6) Representative for Deposition, all of which were filed on January 5, 2004. The following facts are undisputed. This case arose out of Defendants’ seizure of two original oil paintings. Plaintiff Helena de Saro purchased the two paintings in 1989 and 1990. Ms. de Saro possesses the certificates of authenticity for the paintings and paid for their storage up until the time of their seizure in 2002. In 2001, Ms. de Saro met Mr. Jose Maria Clemente, who offered to help Ms. de Saro sell the paintings. Subsequently, New England Capital was formed to facilitate the transfer and sale of the paintings. On March 14, 2002, Defendants seized the two paintings from a warehouse in New York City pursuant to a criminal investigation of Mr. Clemente. Defendants subsequently obtained an indictment against Mr. Clemente alleging drug dealing and money laundering, The indictment, filed June 27, 2002, further alleges that Mr. Clemente owned the paintings and used them as part of a money laundering scheme to “... conceal and disguise the nature, location, source, ownership and control of the proceeds of a specified unlawful activity ...,” namely, the concealing, buying and selling of controlled substances. On May 3, 2002, Plaintiffs filed their Complaint, which alleges that the paintings belong solely to them. Plaintiffs filed their Complaint jointly and shared the same counsel. Plaintiffs allege violations of their Fourth and Fifth Amendment rights and seek return of the paintings pursuant to Rule 41(g) of . the Federal Rules of Criminal Procedure, which states that “a person aggrieved by an unlawful search and seizure or by the deprivation of property may move.. .for the property’s return.” The parties concede that the principal issue before the Court is ownership of the paintings. In their Motion for Summary Judgment, Plaintiffs jointly argue that Ms. de Saro is the sole owner of the paintings. In accordance with this claim, Plaintiffs have now also filed their Motion to Dismiss New England Capital as a Plaintiff, on the grounds that New England Capital has never held any ownership interest in the paintings. Plaintiffs claim that New England Capital was formed to facilitate the transfer and sale of the paintings but has never held any ownership interest in the paintings. Conversely, Defendants allege that New England Capital owned the paintings at the time of their seizure, that New England Capital was the alter ego of Mr. Clemente, and therefore, the paintings were subject to forfeiture in the pending criminal case against Mr. Clemente. LEGAL STANDARD Summary judgment is appropriate only where it is shown that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the record as a whole could not lead a rational fact-finder to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On a motion for summary judgment, the court must view the evidence and resolve all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of pointing to that part of the record which shows the absence of a genuine issue of material fact. Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 918 (11th Cir. 1993). If the movant meets its burden, the burden then shifts to the non-moving party to establish that a genuine dispute of material fact exists. Id. To meet this burden, the non-moving party must go beyond the pleadings and “come forward with significant, probative evidence demonstrating the existence of a triable issue of fact.” Chanel, Inc. v. Italian Activewear of Florida, Inc., 931 F.2d 1472, 1477 (11th Cir.1991). If the evidence relied on is such that a reasonable jury could return a verdict in favor of the non-moving party, then the court should refuse to grant summary judgment. Hairston, 9 F.3d at 919. A mere scintilla of evidence in support of the non-moving party’s position is insufficient, however, to defeat a motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. If the evidence is merely col-orable or is not significantly probative, summary judgment is proper. Id. at 249-50, 106 S.Ct. 2505. DISCUSSION A. A genuine issue of fact exists because of Plaintiff New England Capital’s failure to appear at a noticed deposition. On December 18, 2003, in an attempt to obtain evidence to prove Mr. Clemente’s ownership interest in the paintings, Defendants noticed the deposition of New England Capital for December 30, 2003. Defendants’ Notice of Deposition asked New England Capital to designate a representative to answer questions pertaining to its corporate structure, its parties in interest and their respective shares, and other matters of interest to Defendants. Defendants’ Notice further requested documents relevant to the issue of ownership of the paintings. However, no representative of New England Capital appeared at the deposition. Instead, Plaintiffs sent Defendants a letter claiming that New England Capital “does not have a witness presently available to testify as to the matters you have identified.” (Defs.’ Mot. Ex. B). Plaintiffs added that Defendants would “invade the attorney client privilege” by using the deposition to obtain the testimony of New England Capital’s attorney or to seek access to privileged documents. Id. Plaintiffs further attempt to explain this failure to appear by inviting the Court’s attention to their Motion to Dismiss Co-Plaintiff New England Capital, now arguing that New England Capital never owned the paintings at all. However, irrespective of whether New England Capital remains a Plaintiff, Plaintiffs’ own words indicate that New England Capital possessed documents that might have shed light upon the issue of the paintings’ ownership. Moreover, as Defendants assert in their Motion for an Order Compelling Plaintiffs to Designate and Produce a Rule 30(b)(6) Representative for Deposition, Plaintiffs’ refusal to produce evidence in their possession regarding the nature of New England Capital entitles the Court to infer that the evidence would have been adverse to Plaintiffs’ case. Because Plaintiffs now claim that Ms. de Saro was at all relevant times the sole owner of the paintings, the Court concludes that New England Capital’s refusal to appear for a deposition and produce discovery subjects Plaintiffs to a reasonable inference that disclosure of discovery would indicate that New England Capital held at least some ownership interest in the'paintings. Having refused discovery, New England Capital is barred from presenting witnesses or documentary evidence at trial regarding New England Capital’s lack of ownership interest in the paintings. B. A genuine issue of fact exists because of discrepancies between Plaintiffs’ earlier and more recently filed pleadings. Plaintiffs assert, without documentary proof, that New England Capital never held any ownership interest in the paintings. The Court cannot now simply accept Plaintiffs’ bald assertion at face value. As set forth above, Plaintiffs have reversed their position with regard to New England Capital as this case has proceeded. Specifically, Plaintiffs’ jointly filed Complaint alleged that both Ms. de Saro and New England Capital owned the paintings, while Plaintiffs’ more recent pleadings contend that Ms. de Saro is and has always been the sole owner of the paintings. The language of Plaintiffs’ Complaint indicates that New England Capital held an ownership interest in the paintings. Paragraph 12 of the Complaint states, “once the paintings were sold, a substantial portion of the proceeds was to be remitted to Helena de Saro.” The fact that Ms. de Saro was to receive a substantial portion of the proceeds — as opposed to the entire proceeds — indicates some sort of joint ownership between Ms. de Saro and New England Capital. Paragraph 20 further indicates joint ownership, stating, “Defendant’s seizure of the two paintings from Helena de Saro and New England Capital was unreasonable and without probable cause.” Similarly, paragraph 25 states, “Defendants wrongfully deprived Plaintiffs of property without due process of law.” Lastly, but perhaps most convincingly, paragraph 31 states, “Plaintiffs are the lawful owners of the two paintings and are entitled to their immediate return,” which conclusively states the ownership interest to both Plaintiffs. Conversely, Plaintiffs’ current Motion to Dismiss New England Capital Investments as a Plaintiff in this Action takes the position that New England Capital had no ownership interest in the paintings. Plaintiffs’ contradictory pleadings have created an issue of fact with regard to ownership of the paintings. Moreover, as noted above, all of the motions and pleadings in this case have been submitted on behalf of both Plaintiffs by the same law firm. This commingling of Plaintiffs, and indeed their treatment as a single legal entity, has created further confusion in attempting to resolve the ownership issue. C. A genuine issue of fact exists because Defendants have produced evidence indicating that New England Capital owned the paintings. In addition to the issues of fact created by Plaintiffs’ conduct and pleadings, Defendants have provided affirmative evidence of New England Capital’s ownership interest in the paintings. Defendants have produced Agreements of Sale for both paintings whereby Ms. de Saro sold the paintings to New England Capital. (Defs.’ Mot. Ex. E, Items 1 and 5). Ms. de Saro contends that the Agreements never took effect, in spite of the fact that there is scant evidence of why Ms. de Saro’s initials and signature appear on both documents. Defendants further submit letters to third parties signed by Ms. de Saro indicating that New England Capital owned the paintings. (Defs.’ Mot. Ex. E, Items 8 and 9). Lastly, Defendants provide letters signed by New England Capital’s attorney that clearly state that New England Capital owned the paintings. (Defs.’ Mot. Ex. E, Items 10, 13, and 14). Accordingly, after a careful review of the record and the Court being otherwise fully advised, it is ORDERED and ADJUDGED that Plaintiffs’ Motion for Summary Judgment and Plaintiffs’ Motion to Dismiss New England Capital Investments as a Plaintiff in this Action be, and the same are hereby, DENIED. It is further ORDERED and ADJUDGED that Defendants’ Motion for an Order Compelling Plaintiffs to Designate and Produce a Rule 30(b)(6) Representative for Deposition be, and the same is hereby, GRANTED IN PART, as set forth above. . On January 26, 2004, Defendants filed their Response. On February 13, 2004, Plaintiffs filed their Reply. . On January 23, 2004, Defendants filed their Response. On February 13, 2004, Plaintiffs filed their Reply. . On January 23, 2004, Plaintiffs filed their Response. On February 2, 2004, Defendants filed their Reply. . According to Plaintiffs, the combined value of the two paintings, one by Francisco de Goya and the other by Tsuguharu Foujita, is approximately ten million dollars. . See United States v. Clemente, 02-20548-CR-MARTINEZ. . Throughout these proceedings, Plaintiffs have filed all submissions jointly and have continued to share counsel. . Although Mr. Clemente was indicted on June 27, 2002, he has not yet been tried. Mr. Clemente is presently in custody in Spain, and it not clear when he will be brought to the United States. After giving the Government ample time to try Mr. Clemente, the Court has moved forward with this civil proceeding.
1890877-26607	CUDAHY, Circuit Judge. Appellants, Dom Scalzo, James Scalzo and Gary Scalzo, appeal the sentences imposed upon them following a plea agreement. They charge that the presentence investigation reports prepared for each of them, and especially the use of information contained in a confidential report, violated their rights under Fed.R.Crim.P. 32(c)(3). We affirm the judgment of the district court. I. The appellants, Dom Scalzo, James Scalzo and Gary Scalzo, were indicted in February 1982 for violations of 18 U.S.C. § 2315 (sale or receipt of stolen goods). On June 7, 1982, the three were charged in a superseding information with a one-count violation of 18 U.S.C. § 371, for conspiracy to violate section 2315 by agreeing to receive, store and sell merchandise involved in interstate commerce which they knew to have been stolen. They pleaded guilty. A presentence investigation report in relation to each defendant was prepared by Probation Officer Jack R. Verhagen to assist Judge Crabb in sentencing. Mr. Verhagen made the report available to the defendants and their counsel on August 3, 1982, and they reviewed its contents on August 18. However, an additional section of the presentence report — a section based on information obtained upon a promise of confidentiality — was not disclosed to the defendants or their counsel, nor were they apprised of its existence before the sentencing hearing took place. The defendants, however, did submit supplementary information and objections to the presentence report as it had been disclosed to them and filed motions to strike portions which they considered to be false or based on sources which were not credible. The Scalzos were sentenced at a hearing which took place before Judge Crabb on September 2,1982. At the beginning of the hearing, Judge Crabb made a statement in which she disclosed the existence of the confidential report, explained its necessity, and summarized the material contained within it upon which she had relied in sentencing: First of all, I want to inform you that I have received the confidential report from the United States probation officer involving statements of certain individuals who provided information to the probation officer either on their own initiative or after contact with those individuals had been suggested by the resident FBI agent. The individuals who provided this information did so with the understanding that their names would not be disclosed as they expressed fear of retaliation. The information provided reveals that at least one person has directly overheard James Scalzo discuss the receipt and resale of snowmobiles and lawn tractors which James Scalzo knew to be stolen. Another individual provided information that he had personally observed James and Gary Scalzo unloading at Scalzo Enterprises what appeared to be stolen lawn tractors. Record at 4. Judge Crabb also discussed the information contained in the report— both confidential and as originally disclosed — indicating the material upon which she had relied and portions which she had disregarded: .. . [T]here are various statements in the presentence report concerning allegations or comments about the defendants’ relationships with local law enforcement officers and with figures in organized crime. I want to state for the record that I am disregarding any of that information. I am not satisfied either that it is well-substantiated or that it is material to the sentencing decision that I have today. Essentially what I looked for in the presentence report for each of the defendants is the answer to the question whether the charges to which they had pled guilty concern two isolated events or whether they represent a pattern of behavior engaged in over a period of time. My view is that these events appear to be part of a pattern of behavior and I base this conclusion on these factors. First of all, it seems very clear that there was an additional load of hides besides the one to which they have pleaded guilty. There is quite a bit of evidence to indicate that stolen chemicals were received by the Scalzos; not Robert Scalzo, but Dom, Gary and James. The evidence in support of this comes from the statements that are quoted in the presentence report from Terry Lee Jensen, Gary’s admission that he was aware that stolen chemicals were received and Dorn’s admission that Bagley was a frequent visitor. There is quite a bit of evidence that the Scalzos again, not including Robert, were involved in the receipt and resale of stolen golf carts, lawn tractors and snowmobiles. The evidence in support of this is again Terry Jensen — the incident in which stolen golf carts were discovered at a golf course after apparently the roof had fallen in at the clubhouse ... again Dom Scalzo’s admission that Bagley was a frequent visitor and the other confidential information that I’ve referred to earlier that Jim and Gary Scalzo had been seen unloading carts at Scalzo Enterprises and confidential information that James Scalzo had been overheard discussing the receipt of stolen lawn tractors. Record at 4-6. Each defendant was then called separately for sentencing. Each admitted that he and his counsel had reviewed the presentence report. Gary Scalzo’s attorney made several objections. First, he stated that he had not known of the existence of a confidential report and argued that there was an insufficient showing of the necessity for non-disclosure. Second, he challenged the judge’s assertion that Gary Scalzo had made any admission in relation to the receipt of stolen chemicals. Third, he asked to be allowed to cross-examine the Probation Officer, Mr. Verhagen, about the reliability and credibility of both the confidential informants and of Terry Lee Jensen. Judge Crabb, pointing out that Officer Verhagen had interviewed all of the informants himself and that Jensen’s information was offered as a declaration against penal interest and was only relied upon to the extent that it described his personal involvement in the criminal scheme, denied the request to cross-examine Verhagen. James Scalzo’s counsel requested that he be allowed to see the confidential section of the presentence report under conditions which would protect its confidentiality. The court denied this request. He also objected to the fact that the individual presentence report frequently referred to conduct and activity by “the Scalzos” and thus was a group rather than individual assessment. Dom Scalzo’s attorney endorsed the arguments made by the other two attorneys. Gary Scalzo was sentenced to two and a half years incarceration and a $10,000 fine. James Scalzo was sentenced to three years incarceration, and a $10,000 fine. Dom Scalzo was sentenced to six months incarceration, three years probation, a $10,000 fine and restitution totalling $71,711. The maximum sentence for a conviction under 18 U.S.C. § 371 is five years incarceration and a $10,000 fine. In this appeal, the Scalzos ask that we reverse the judgment and remand the case for resentencing, on grounds related to the district court’s use of both the confidential report and the presentence report which was disclosed to the defendants. With respect to the confidential report, appellants charge that there was an insufficient showing that nondisclosure was necessary and they contend that the summary provided by the trial judge was inadequate. As to the presentence report which was disclosed, they challenge the judge’s assertion that Gary Scalzo ever admitted receipt of stolen chemicals; they raise several general issues about the credibility of the informants and the reliability of the information upon which Officer Verhagen based the report; and they argue that the judge relied .upon generalized information about the group of defendants in making sentencing decisions about individuals. In addition, they contend that the sentences imposed were excessive in view of the total circumstances of this case. We will discuss each of these contentions in turn. II. The right of a defendant to be sentenced on the basis of accurate information is fundamental and undisputed. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92L.Ed. 1690 (1948). The concern that an individual might be sentenced to a term longer than he or she would otherwise have been adjudged to deserve, based upon inaccurate information contained within a presentence investigation report, has led to a long and ongoing controversy over nondisclosure of these reports to defendants and their counsel. See Fed.R.Crim.P. 32 advisory committee note; 3 C. Wright, Federal Practice and Procedure § 524 (1982); 8A J. Moore, Moore’s Federal Practice ¶ 32.03[4] (2d ed. 1981); Fennell & Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 Harv.L.Rev. 1613 (1980). When Rule 32 of the Federal Rules of Criminal Procedure was amended in 1975, therefore, disclosure of the presentence report was made mandatory except under certain limited circumstances. Thus the antidote for the danger of sentences based on inaccurate information was perceived to be submission of that information for testing under the full corrective force of the adversarial process. In the words of the Advisory Committee, [t]he best way of insuring accuracy is disclosure with an opportunity for the defendant and counsel to point out to the court information thought by the defense to be inaccurate, incomplete, or otherwise misleading. Fed.R.Crim.P. 32 advisory committee note. Thus Rule 32 provides, as well, that the court shall afford the defendant or his counsel an opportunity to comment thereon and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report. Fed.R.Crim.P. 32(c)(3)(A). In certain circumstances, however, the court may refuse to disclose information contained in such a report, where in the opinion of the court the report contains diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons .... Fed.R.Crim.P. 32(c)(3)(A). If the court does decide, as in this case, that a report contains material of such a nature as to require confidentiality, the judge must nonetheless provide a summary of the confidential information he or she has relied upon and allow the defense to comment upon it as well: the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant or his counsel an opportunity to comment thereon. Fed.R.Crim.P. 32(c)(3)(B). Appellants in the case before us argue that the district court abused its discretion by failing, in the absence of a sufficient showing of the necessity for confidentiality, to disclose confidential materials. They cite no case or cases, however, in support of their contention that such a showing of necessity must be made before the judge may refuse to disclose material. The language of Rule 32 consigns this decision to “the opinion of the court,” and Judge Crabb did state for the record that her reasons for nondisclosure were that [t]he individuals who provided this information did so with the understanding that their names would not be disclosed as they expressed fear of retaliation. Record at 4. Having reviewed the nondisclosed information, this court cannot say that Judge Crabb abused her discretion in concluding that the material should remain confidential. Having concluded that the district court was well within its discretion in refusing to disclose portions of the presentence report in this case, the principal question for review is the adequacy of the summary provided by the court. The summary required by Rule 32(c)(3)(B) may be either oral or in writing and need only contain the information upon which the judge intends to rely in determining sentence; the defendant or his counsel is then to be given an opportunity to comment on the information. Although this opportunity to comment is presumably the analogue of the opportunity offered under Rule 32(c)(3)(A) in relation to a report which is fully disclosed, this adversarial corrective for. possible inaccuracies is inherently more difficult where information is confidential. The very disclosure of some matters may necessarily reveal their sources. In discussing the required “summary of factual information,” the Fifth Circuit has thus concluded that the summary should, in a manner as specific as the facts permit, inform the defendant of the nature of the information .... The trial court must, on a case by ease basis, balance the policy of making disclosure as specific as possible with the need to preserve confidentiality. United States v. Woody, 567 F.2d 1353, 1362-63 (5th Cir.), cert. denied, 436 U.S. 908, 98 S.Ct. 2241, 56 L.Ed.2d 406 (1978). The summary provided by Judge Crabb in this case fulfills this standard. Judge Crabb delivered an oral summary of the confidential material upon which she had relied and gave each party an opportunity to comment upon it, an opportunity of which the parties availed themselves at some length. Without revealing the sources of the information, or any information which would identify those sources, she provided a summary which specified the facts upon which she was relying: that James Scalzo had been overheard discussing the receipt of stolen lawn tractors and that Jim and Gary Scalzo had been seen unloading what appeared to be stolen lawn tractors. From her handwritten notations on the face of the confidential report and summary, as well as from her statement in court that she was disregarding all information about the defendants’ relationship with local law enforcement officers and with fig ures in organized crime, it is clear that the reports about stolen lawn tractors were the only ones contained in the confidential report upon which she relied in sentencing. We hold therefore that the summary provided in the case before us was as specific as possible, given the need for confidentiality, and that it fulfilled the requirements of Rule 32(c)(3)(B). Although we eventually obtained and reviewed the confidential reports in this case and were generally able, due to Judge Crabb’s handwritten notations on them, to discern the portions upon which she did or did not rely, the process of appellate review would be greatly facilitated if the procedures required in the Fifth Circuit were followed. See United States v. Woody, 567 F.2d at 1362; United States v. Muniz, 569 F.2d 858 (5th Cir.1978) (per curiam). We therefore adopt those procedures for prospective application in this circuit. First of all, the trial judge should state on the record whether she is relying on undisclosed information and should provide on the record a summary of the information if she is so relying. Second, if she is relying on this material, she should forward the undisclosed material in a sealed envelope to this court as part of the record on appeal. Third, the sealed materials should include a written statement by the district judge specifying the reasons supporting the decision not to disclose the information as well as the facts underlying the summary provided to the defendant. In other words, she should reveal to us the undisclosed facts upon which she has relied. The statement should contain all the prescribed information but need not be elaborate. With such a record before us we can effectively determine whether the trial court has abused its discretion in deciding not to disclose the information. We can also appraise the adequacy with which it has been summarized. We believe that an adequate procedure for coping with the review of confidential presentence reports is important because the potential for abuse and unfairness in the use of this information is very substantial. There is a fundamental interest in a criminal defendant’s being sentenced on the basis of accurate information. Accuracy can best be assured by the free operation of the adversary process. But the effectiveness of that process is sharply impaired by the requirements of confidentiality. Hence, there is an acute need, where confidential information is considered, for careful and thorough handling in the district court and informed review on appeal. III. We turn now to the issues raised about the portions of the presentence report which were disclosed to the defendants. First, Gary Scalzo challenges “the basis of the court’s conclusion that his client had admitted receipt or possession of stolen chemical [sic].” Appellants’ Brief at 12. We note, however, that Judge Crabb never stated that Gary Scalzo admitted receipt or possession of chemicals. Rather, as one of the pieces of evidence in support of her conclusion that the offense to which the Scalzos had pled guilty was part of a pattern including, inter alia, the receipt of stolen chemicals, she referred to “Gary’s admission that he was aware that stolen chemicals were received.” Record at 5 (emphasis supplied). When challenged by Gary Scalzo’s trial counsel, Judge Crabb referred him to page 17 of the presentence report, which he and his client had inspected, and which reads as follows: He [Gary] also indicated that it was true that Dean Bagley did deliver farm chemicals, used John Deere tractors and some golf carts back in 1974-1975 to Scalzo Enterprises and Jim Scalzo. Gary Scalzo Presentence Report at 17. The report goes on to state that, “Gary declined to make any comment regarding whether or not the items delivered by Bagley were stolen.” Id. at 17-18. Contrary to trial counsel’s assumption that Gary’s admission must have been contained in one of the letters exchanged between his client and Officer Verhagen, see Record at 24, it is clear from the text of the presentence report that these statements were based on a personal interview of Gary by Verhagen. Moreover, although Gary himself declined to comment on whether the chemicals were stolen, other sections of the presentence report indicate that the farm chemicals which Bagley delivered to Scalzo were indeed stolen. See, e.g., Presentence Report at 10. These sections of the report were based upon an interview with Terry Lee Jensen concerning his own personal participation in the various robbery schemes; hence Judge Crabb’s response at the hearing was quite correct: Well, I have the statement in the presentence report and I have given it consideration, but I believe that it’s corroborated by other statements in the presentence report, including the information furnished by Mr. Jensen. Record at 24-25. The material upon which the judge stated that she relied was made available to defendants and their counsel on August 3, 1982, and they reviewed it on August 18. Rather than taking issue with any of the factual information contained in it, Gary Sealzo’s attorney filed a motion to strike “all or portions” of it, alleging in conclusory fashion that the report included hearsay and various other types of unreliable information. The motion was supported by reliance upon United States v. Weston, 448 F.2d 626 (9th Cir.1971), for the general proposition that a sentence must be based on reliable information. Weston was a case in which the trial judge, after initially expressing a belief that the five-year statutory minimum sentence would be appropriate, changed his mind after reading a presentence report which contained allegations that the defendant was a major distributor of narcotics in the region and sentenced her to the 20-year maximum. 448 F.2d at 628. Weston vigorously denied these charges, and the court of appeals subsequently found that they were not adequately supported by the material contained in the confidential report. Id. at 630. In the case at hand, by contrast, counsel was given an opportunity to review the presentence report prior to the sentencing hearing and to submit material to refute it. No facts were specified as inaccurate; and the dispute over Gary Sealzo’s “admission,” discussed above, turns out to have been largely semantic. Moreover, we have found the authenticity of the statements in question to be amply supported by the information in the report. A second, although related, claim presented by the appellants here is that Judge Crabb concluded that the present offense was part of a pattern of criminal behavior based on information which was not only hearsay but was obtained from sources who were not credible. Appellants object that Judge Crabb did not allow the defendants’ counsel to cross-examine the officer who had obtained the information. On these points, we note, first, that reliance upon hearsay and other types of inadmissible information in assessing the factors affecting punishment is not per se improper. Williams v. Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 426, 3 L.Ed.2d 516 (1959); Williams v. New York, 337 U.S. 241, 252, 69 S.Ct. 1079, 1085, 93 L.Ed. 1337 (1949); Unit ed States v. Harris, 558 F.2d 366, 372 (7th Cir.1977). Second, based on the commentary to Rule 32, the Advisory Committee did not contemplate that a Probation Officer would be required to testify at the hearing at all, much less be subjected to cross-examination by defense counsel:' It is not intended that the probation officer would be subjected to any rigorous examination by defense counsel, or that he will even be sworn to testify. Fed.R.Crim.P. 32 advisory committee note. Third, as a general rule, sentencing relief is foreclosed to defendants who have been given access to the presentence report but have failed specifically to challenge the accuracy of information contained within it, United States v. Harris, 558 F.2d at 375; see also United States v. Trevino, 490 F.2d 95, 96 (5th Cir.1973) (per curiam). It is difficult to discern from the briefs on appeal what specific factual inaccuracies the appellants would have us review. Judge Crabb based her conclusion about a pattern of criminal conduct upon statements by the parties themselves and by Terry Lee Jensen, a participant in their schemes. Record at 5-6. But, aside from Gary Scalzo’s “admission,” discussed above, the parties do not dispute the statements attributed to them. Thus the only remaining issue relating to the reliability of information in the presentence report is apparently a general challenge to the credibility of Terry Lee Jensen. The particular concerns expressed were that Jensen may have had a motive to inform on the Scalzos, in order to avoid prosecution or a more severe punishment himself, that he may have had a criminal record and have been inherently unreliable as a source of information and that much of his information may have been based upon hearsay. Record at 25-28. The district court responded that it had considered Jensen a reliable source because his statements were against penal interest and that weight had been given only to his descriptions of events in which he had been personally involved. These were events in which Jensen himself had participated in the delivery of stolen goods. Record at 26-28. We see no reason to question Judge Crabb’s conclusion. Jensen’s information about occasions upon which he had personally participated in the criminal schemes to which the Scalzos had pled guilty was very detailed, lengthy and specific. The Scalzos were given an opportunity to challenge any of the factual assertions which were based upon Jensen’s information both prior to and at the sentencing hearing. Concerns about his credibility were made known to Judge Crabb at the hearing, and she considered them prior to sentencing. In short, she complied rigorously with the command of Rule 32(c)(3)(A) to afford the defendant or his counsel an opportunity to comment [on the presentenee report] and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report. Fed.R.Crim.P. 32(c)(3)(A). The law requires no more. IV. Appellants also contend that the presentence reports under consideration here were “group” reports, containing generalized statements about “the Scalzos” rather than individualized assessments; appellants cite U.S. v. Ramirez, 513 F.2d 72 (5th Cir.), cert. denied, 423 U.S. 912, 96 S.Ct. 215, 46 L.Ed.2d 140 (1975), as authority that reliance on this “group” information constitutes an abuse of discretion. At issue in Ramirez, however, was whether one defend ant’s presentence report had been read by the court prior to adjudication of his guilt. This practice had been held to be per se reversible error by the Supreme Court in Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 1136, 22 L.Ed.2d 442 (1969). In the case at hand, of course, we are dealing with an entirely different problem, where all three defendants had pled guilty to conspiracy and the judge’s task was to mete out sentences appropriate to the relative degrees of guilt of the respective defendants. Appellants cite the Fifth Circuit prophylactic rule of Ramirez which requires that presentence reports in multiple defendant cases be sanitized of all references to co-defendants (except in the official version of the offense). The Fifth Circuit noted in Ramirez that this procedure was particularly appropriate in cases where one defendant is to be sentenced before his co-defendant’s guilt is adjudicated. 513 F.2d at 77-78 n. 4. But we see no reason to adopt such a rule in a case such as the one before us, involving, as it does, a guilty plea and a comparative assessment of the relative degrees of responsibility of participants in a conspiracy. More importantly, we note that the presentence report prepared for each defendant here contained highly individualized sections about the personal and family history of the respective individuals. Judge Crabb seems clearly to have taken all of this information into account in the quite individualized sentences she meted out — a burdensome restitution requirement for Dom Scalzo, based on evidence that he was the leading force in the conspiracy, coupled with a shortened prison sentence, due to his age and ill health; differing periods of incarceration for James and Gary Scalzo, based on evidence that Gary was a follower rather than a leader in relation to the criminal activities conceived by James and Dom.
3735970-7626	WEINFELD, District Judge. • The defendant, indicted for bribing Internal Revenue Service officers and for conspiring to do so, moves: (1) for dismissal of the twenty-nine count indictment; (2) for the return and suppression as evidence of papers taken from his person at the time of his arrest; (3) for production and inspection of certain enumerated documents; and (4) for a bill of particulars. 1. MOTION TO DISMISS THE INDICTMENT. The defendant challenges the validity of the indictment upon multiple grounds, none of which, either singly or collectively, warrants dismissal of the indictment. First, he attacks the manner of selection of the grand jurors, alleging they were drawn only from four of the eleven counties which comprise this District, and then only from among registered voters, thereby excluding other citizens eligible to serve as jurors. Absent an intent to discriminate against some classified group of citizens—and no such charge is seriously alleged here—such a method of summoning jurors does not taint an indictment. In Lewis v. United States the Supreme Court upheld the informal practice of confining juror selection to counties near the court house and our Court of Appeals has approved the practice in this District of drawing jurors from New York, Bronx and Westchester Counties. The attack on the use of voter lists as the principal source of grand jurors is likewise without merit and identical arguments have been rejected by persuasive opinions in this District and in the Court of Appeals. The time is long past when criminal prosecutions in this District can be delayed pending extensive sociological inquiry into the basis of jury selection. The second ground urged for dismissal rests upon vague, conclusory and unsupported allegations that the grand jury which returned the indictment had been improperly influenced. Here the defendant relies upon a general charge of an alleged interplay between the Government and a self-constituted private group, the Federal Grand Jury Association for the Southern District of New York, the end result of which is improperly to influence all grand juries, to create a bias favorable toward indictment and to foreclose objective consideration by grand jurors of all matters within their domain. Not a single evidential fact is submitted to support this general allegation and there is not the slightest basis to warrant a hearing. 6 If upon such whimsical and unsupported charges hearings are to be conducted, a serious roadblock is created to expeditious and prompt trials. Third, the defendant seeks to void the indictment because he was not given notice that the Government intended to seek his indictment so that he could appear and conduct a voir dire examination of prospective jurors and challenge the entire panel or individual jurors. However, Rule 6(b) (1) of the Federal Rules of Criminal Procedure affords such an opportunity only to “a defendant who has been held to answer in the district court.” This defendant was not previously held nor bound over to await action by a grand jury, and no rule or any constitutional mandate requires that a potential defendant with respect to whom evidence is to be presented initially to a grand jury be notified in advance so that he can conduct a voir dire examination of the grand jurors at the time of their selection and empanelling. Again, on this aspect of defendant’s motion, not the slightest evidential matter has been submitted to suggest that any member of the grand jury which returned the instant indictment was not qualified to serve. Absent such appropriate allegation, there is no warrant for an inquiry into the vote of the grand jury in order to determine the availability of Rule 6(b) (2) relief to the defendant. Finally, the defendant advances miscellaneous grounds for dismissal, none of which merits extensive discussion. Defendant complains that he was summoned by “midnight” subpoena to appear before one grand jury and then indicted by another which did not invite him to appear. He notes, too, that successive grand juries were used to investigate alleged bribery of Internal Revenue Service employees. Neither circumstance warrants dismissal of the indictment. In addition, he calls the Court’s attention to the fact that he was arrested at 7 P.M. rather than at some more convenient time, taken to dinner instead of being arraigned immediately, denied an early opportunity to telephone counsel or his family, and detained overnight, although a state magistrate was available to set bail. Assuming arguendo that the foregoing infringed defendant’s rights, this furnishes no basis for voiding the indictment; his sole remedy is exclusion of evidence tainted by illegal detention. The motion to dismiss the indictment is denied. 2. MOTION FOR THE RETURN OF PROPERTY PURSUANT ' TO RULE 41(e) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. The Government has consented to return various items of personal property consisting of notes, diaries and other per sonal belongings taken at the time of the defendant’s arrest. In addition to the sworn affidavit of the Assistant United States Attorney setting forth that none of the aforesaid property was used, directly or indirectly, before the grand jury, the Court has examined the grand jury minutes and is satisfied that such is the case. Moreover, the Government represents that no use will be made at the trial of any information derived from those documents. Accordingly, there is no basis for the suppression of any evidence with respect to the aforesaid material. 3. MOTION UNDER RULE 16. The motion for discovery and inspection which, among other matters, includes within its sweep grand jury minutes pertaining not only to this indictment but to others as well is denied in its entirety. A defendant—absent circumstances not here present'—is not entitled to pretrial production of tax returns relating to alleged bribes, to grand jury minutes pertaining to this indictment or to others in which he is not named, to his own statements, or those of prospective witnesses and codefendants. And clearly he is not entitled to “All relevant and material documents which the Government intends to introduce at the trial or which were examined during the course of the investigation leading to the indictment.” 4. MOTION FOR BILL OF PARTICULARS. For similar reasons the Court denies the motion for a bill of particulars except as consented to by the Government. Settle order on one day’s notice. . 279 U.S. 63, 72-73, 49 S.Ct. 257, 73 L.Ed. 615 (1929). . United States v. Gottfried, 165 F.2d 360 (2d Cir.), cert. denied, 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139 (1948). Cf. United States v. Titus, 210 F.2d 210 (2d Cir. 1954), (practice in the Northern District of New York). See also, Katz v. United States, 321 F.2d 7 (1st Cir. 1963). . United States v. Van Allen, 208 F.Supp. 331 (S.D.N.Y.1962); United States v. Greenberg, 200 F.Supp. 382 (S.D.N.Y. 1961). In Van Allen Judge Gasbin took testimony over a four-day period, thus obviating the necessity for hearings in the present case, since the allegations here are no different from those made in that matter. . United States v. Agueci, 310 F.2d 817 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963). . Cf. United States v. Casanova, 213 F.Supp. 654, 657 (S.D.N.Y.1963); Calkins, “Grand Jury Secrecy,” 63 Mich.L.Rev. 455, 474-75 (1965). . See, e. g., Mapp v. Ohio, 367 U.S. 643, 651-53, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). . United States v. Simon, 30 F.R.D. 53 (S.D.N.Y.1962). . United States v. Kahaner, 203 F.Supp. 78, 85-87 (S.D.N.Y.1962).
11162994-13144	Opinion for the Court filed by Circuit Judge TATEL. TATEL, Circuit Judge: The National Wildlife Federation and various pulp, paper, and paperboard companies petitioned for review of the Environmental Protection Agency’s new effluent guidelines for paper mills. At this stage of the proceedings, we consider Industry petitioners’ motion to dismiss NWF’s petition for lack of subject matter jurisdiction. This is a simple issue. Because the statutory provision Industry petitioners invoke is not jurisdictional, we deny their motion. I In April of 1998, EPA promulgated regulations, known as the “Cluster Rules,” governing parts of the paper and pulp industry. The Rules include both effluent limitation guidelines under the Clean Water Act and emission standards under the Clean Air Act. See National Emission Standards for Hazardous Air Pollutants for Source Category: Pulp and Paper Production, 63 Fed.Reg. 18,504 (April 15, 1998). Six environmental groups, including the National Wildlife Federation, filed a joint petition for review of the Clean Water Act portion of the Rules in the Ninth Circuit. Various paper producers — we will refer to them collectively as “Industry petitioners” — then filed petitions for review of the effluent guidelines here and in the Fourth and Eleventh Circuits. The three Industry petitions were transferred to the Ninth Circuit, which consolidated them with NWF’s. Industry petitioners moved to dismiss the NWF petition for lack of subject matter jurisdiction or, in the alternative, to transfer the case to this circuit. Without ruling on the motion to dismiss, the Ninth Circuit transferred the case here. Natl Wildlife Fed’n v. Browner; No. 98-70506 (9th Cir. Nov. 3,1989) (order granting transfer of venue to D.C. Circuit). We bifurcated the motion to dismiss and the merits, holding the merits in abeyance pending resolution of the jurisdictional issue. Both NWF and EPA opposed the motion to dismiss. While that motion was pending, Industry petitioners filed an additional motion to sanction both NWF and EPA for alleged disclosure, concealment, and use of protected confidential business information. II Section 509(b)(1) of the Clean Water Act provides: Review of the [EPA] Administrator’s action (A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title, (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, (F) in issuing or denying any permit under section 1342 of this title, and (G) in promulgating any individual control strategy under section 1314© of this title, may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person.... 33 U.S.C. § 1369(b)(1) (emphasis added). Industry petitioners assert that the language specifying review in the circuit where a petitioner “resides or transacts business” is jurisdictional. They urge us to dismiss for lack of jurisdiction because, they -claim, only one of the NWF petitioners — the Clark Fork-Pend Oreille Coalition — “resides or transacts business” in the Ninth Circuit, and this petitioner lost standing (or, alternatively, its claim became moot) nine months after NWF’s petition was filed. Disagreeing, NWF argues that the “resides or transacts business” clause in section 509(b)(1) is a venue provision, that venue in the Ninth Circuit was properly established, and that Industry petitioners’ standing and mootness arguments are without merit. To resolve Industry petitioners’ motion to dismiss, we need address only the parties’ disagreement over the meaning of section 509(b)(1). So far as we can tell, no court has yet decided whether the “resides or transacts business” requirement of section 509(b)(1) is jurisdictional. Courts and commentators, however, have assumed that similar provisions in other statutes determine venue, not jurisdiction. See Fed. Power Comm’n v. Texaco, 377 U.S. 33, 37-39, 84 S.Ct. 1105, 12 L.Ed.2d 112 (1964) (assuming a provision stating that an aggrieved party “may obtain review ... in the court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia” was a venue provision, despite an explicit reference to “jurisdiction” later in the provision, see 15 U.S.C. § 717r(b)); 15 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3816 at 166-67 n.4 (2d ed.1986) (implying that a provision in the Federal Trade Commission Act allowing review in “any circuit ... where such person, partnership, or corporation resides or carries on business” is a venue provision). Moreover, in Texas Municipal Power Agency v. EPA, 89 F.3d 858 (D.C.Cir.1996), we decided that an analogous provision of the Clean Air Act, section 307(b)(1), determines venue. That section provides that [a] petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, [any standard or any requirements under a variety of other specified sections of the Act], or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of ... any other final action of the Administrator under this chapter ... which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. 42 U.S.C. § 7607(b)(1) (emphasis added). We rejected EPA’s contention that the section was jurisdictional. Noting that it “[could] be read as prescribing the choice among circuits and not the power of a particular federal circuit court to hear a claim,” see Texas Mun., 89 F.3d at 867, we suggested that “the provision’s reference to where a petitioner may ‘file’ ” and its “unequivocal characterization in the legislative history as a venue provision” both supported the view that it specified venue. Id. Although we acknowledged that there was “some ‘jurisdictional’ language” elsewhere in the section, such as a “clearly jurisdictional 60-day limit for filing petitions for review,” and that the language was “mandatory rather than providing a ‘choice’ of circuits,” we nevertheless thought these facts “not determinative”: we think it more significant that federal court power to entertain petitions is clear, that the provision refers to where a petitioner must file, and that the apparent congressional purpose was to place nationally significant decisions in the D.C. Circuit. Given the less than clear language, the structure of the section — dividing cases among the circuits — and the legislative history indicate that § 307(b)(1) is framed more as a venue provision. Id. In light of Texas Municipal, we think the statute at issue in this case determines venue, not jurisdiction. Like the statutory language in Texas Municipal, section 509(b)(l)’s language — “[r]eview of the Administrator’s action ... may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business” — is best read as “prescribing the choice among circuits and not the power of a particular federal circuit court to hear a claim.” See Texas Mun., 89 F.3d at 867. In fact, for at least two reasons, this reading has even more facial plausibility here than it did in Texas Municipal. To begin with, the provision at issue in Texas Municipal contained exclusive language stating that a petition for review “may be filed only” in the specified circuit. See id. at 867 n. 6 (emphasis added). Despite similar language in, for example, the general venue statute for the district courts, see 28 U.S.C. § 1391(a) & (b), this exclusive language could have been taken to suggest that the specified court had exclusive jurisdiction over a particular kind of case. In concluding otherwise, we relied on a variety of other factors, including the legislative history and the provision’s focus on where a petitioner had to “file.” Because section 509(b)(1) contains no such exclusive language, it is far less plausible to think it confers exclusive jurisdiction in the first place. The Clean Air Act provision at issue in Texas Municipal, moreover, required petitioners to file particular kinds of petitions in particular courts — petitions for review of national actions in this circuit, and petitions for review of regional actions in the geographically appropriate circuit. Section 509(b)(1) simply allows for review of any enumerated claim in whichever circuit an interested person resides or transacts business. Its purpose is thus even more clearly to “divid[e] cases among the circuits,” see Texas Mun., 89 F.3d at 867, placing decisions in the circuits in which “interested person[s]” are located, and thus ensuring, as EPA suggests, that “the appellate court that hears the matter has some direct connection to the parties involved in the proceeding.” Brief for EPA at 3. Our conclusion that section 509(b)(1) determines venue finds further support from the fact that, as in Texas Municipal, “federal court power to entertain petitions” under the section is clear: under section 509(b)(1), every interested person challenging an enumerated action has a court in which to obtain review. Industry petitioners’ interpretation conflicts with this broad grant of power, since under their reading, “the punishment for a petitioner’s failure to file its petition initially in the proper circuit court of appeals ... is dismissal of the petition for want of jurisdiction, even where the petitioner otherwise can demonstrate standing to bring its petition,” Brief for EPA at 3, thus either denying review to an otherwise qualified person, if the statute of limitations has run, or making review more burdensome. Reading section 509(b)(1) as a venue provision comports better with the broad grant of appellate authority, since the standard remedy for improper venue is to transfer the case to the proper court rather than dismissing it — thus preserving a petitioner’s ability to obtain review. See Wright, Miller, & Cooper § 3827 at 268-29 (“It is not surprising that in most cases of improper venue the courts conclude that it is in the interest of justice to transfer to a proper forum rather than to dismiss.”). Disagreeing with this reading of the statute, Industry petitioners argue that Texas Municipal actually supports then-claim that section 509(b)(1) is jurisdictional, pointing out that the provision at issue in that case specified where a petition for review “may be filed,” while the provision here specifies where “[rjeview ... may be had.” Noting that our decision in Texas Municipal singled out, among other factors, “the provision’s reference to where a petitioner may ‘file,’ ” Texas Mun., 89 F.3d at 867, Industry petitioners argue that “the Court recognized [in Texas Municipal] that the language in Clean Air Act § 307(b)(1) is intended to limit the petitioner’s ability to file a challenge to agency action in particular fora. The language of Clean Water Act § 509(b)(1), on the other hand, limits the court’s ability to review such a petition.” Brief for Industry Petitioners at 7 n.l. Though perhaps not “frivolous” in the Rule 11 sense, see Fed.R.Civ.P. 11(b)(2), this argument is exceptionally unconvincing. As we have already pointed out, our concern with the word “file” in Texas Municipal was motivated by the exclusive language in the provision there — language not found in section 509(b)(1). More to the point, it is simply not clear, as Industry petitioners assert, that section 509(b)(l)’s language focuses on courts rather than petitioners. The provision does not explicitly address the courts: it does not say, for example, that “only the court where any interested party resides” may review a petition. Instead, it limits only where review “may be had.” And unlike the other provisions Industry petitioners mention that confer jurisdiction based on residence, section 509(b)(1) never uses the word “jurisdiction.” Cf, e.g., 26 U.S.C. § 7609(h)(1); Deal v. United States, 759 F.2d 442, 444 (5th Cir.1985) (interpreting 26 U.S.C. § 7609(h)(1) as a jurisdictional provision). Moreover, although section 509(b)(1) does not use the word “file,” it does state that review may be had by an interested person in the appropriate circuit “upon application by such person” (emphasis added). Thus, like the provision in Texas Municipal, it clearly directs petitioners where to file.
1465435-6378	LEVIN H. CAMPBELL, Circuit Judge. Plaintiff PCI International, Inc. (PCI) seeks damages from Puerto Rico Lighter-age Company and its underwriters for loss of use of a waste disposal barge of which it was the bareboat charterer. The barge was stranded, and became a total loss, while being towed by a tug (the “Fajardo”) owned by Lighterage pursuant to a written agreement of towage with PCI. PCI asserts that the stranding was due to the carelessness of the tug, and that because of loss of use of the barge, and the difficulty of securing a suitable replacement, it was put to great expense in order to meet commitments to customers who had contracted for PCI to dispose of their chemical wastes at sea. After the stranding, the underwriters of the barge determined that it was a constructive total loss, and reimbursed the owner, A & S Transportation Co., from whom PCI had chartered it, the full insured value of the hull (with certain adjustments) plus an additional sum under the sue and labor provisions of the policy. The owner, in return, assigned all its rights respecting the barge to the underwriters. The underwriters also reimbursed PCI, under the sue and labor provisions of the policy, PCI hav ing been named in the policy as an additional insured, for certain amounts PCI had expended to preserve the wreck. Thereafter PCI joined the owner and the barge’s underwriters in this damages action against the tug, Lighterage, and their underwriters. Before trial, however, the barge’s underwriters effected a settlement with defendants. As part of the settlement, they released defendants and assigned to them all rights of action, including all the rights which had been assigned to them by A & S. After a trial, the district court sitting in admiralty rejected the owner’s claims for damages in excess of the amount already received from its underwriters. The court held that the owner had effectively divested itself of any claims in the matter by its previous settlement and assignment to its own underwriters, who had thereafter settled with defendants. The owner has not appealed from this judgment. The court also rejected appellant PCI’s claims for consequential damages based on the uniqueness of the barge and alleged expenses incurred in procuring a substitute. Although PCI had not been a party to the settlement between the owner and the barge’s underwriters, the court held that PCI, as a bareboat charterer, stood in the shoes of the owner. The court relied upon, The well-settled rule where a ship is a total loss . . . the aggrieved party may not recover compensation for contemplated profits or the loss of use of the ship. Damages are limited to the value of the ship, plus interest and the net freight pending at the time of the collision. The Umbria, 166 U.S. 404 [17 S.Ct. 610, 41 L.Ed. 1053] (1897); Barger v. Hanson, [426 F.2d 640, 641 (9th Cir. 1970) ]. The court acknowledged PCI’s claims that the tug had been negligent as to it; that the tug’s owner had committed a breach of duties owed to PCI individually under the towing contract; and, finally, that it had violated its implied warranty of workmanlike service owed to PCI under the towing contract. However, the court ruled that as bareboat charterer PCI was limited to the same damages an owner could have claimed in like circumstances, and that these would not have gone beyond the value of the totally lost vessel and of certain other items not material to PCI’s claim. The court contrasted the situation with that which would have prevailed if the barge had been a partial, not a total, loss. In such case, the court said, the owner would have been entitled to lost earnings or to the cost of providing a substitute ship, citing The Emma Kate Ross v. Myers Excursion Nav. Corp., 50 F. 845 (3d Cir. 1892). We sustain the judgment of the district court. Where a vessel is totally lost, the measure of damages is its value at the time of loss, plus interest and the net freight pending at the time of the collision. The Umbria, 166 U.S. 404, 421-22, 17 S.Ct. at 617 (1897). Loss of use is not allowable. Alkmeon Naviera, S.A. v. M/V Marina L, 633 F.2d 789, 797 (9th Cir. 1980); Ozanic v. United States, 165 F.2d 738, 743 (2d Cir. 1948); The Hamilton, 95 F. 844 (E.D.N.Y. 1899). While termed a “collision” rule, courts have applied it where barges under tow have been damaged or lost because of the inattention of the tug, and we see no reason not to apply it where the barge was stranded by the tug as here. The June Ames, 66 F.2d 415, 416 (2d Cir. 1933) (tow damaged by hitting abutment of a bridge through negligence of tug; rule in issue followed); Mobile Towing & Wrecking Co. v. Dredge, 299 F.Supp. 358, 367 (N.D.Fla. 1969) (tow sank as a result of tug’s negligence; consequential damages denied). As the district court here recognized, damages for loss of use would have been recoverable had the loss been partial. E.g., The June Ames, 66 F.2d at 416; compare The Ames & Carroll No. 20, 66 F.2d 413, 415 (2d Cir. 1933) (demurrage recoverable for loss of use during repairs). The only deviation from this rule which has come to our attention occurred in Barger v. Hanson, 426 F.2d 640 (9th Cir. 1970), where, after citing the rule in its full strength, the circuit court nonetheless upheld damages for one month’s loss of use of a destroyed fishing vessel. The court declined to re-examine the rule in the absence of careful adversary briefing and argument, but implied some dissatisfaction with it, and then proceeded to let the challenged damages item stand in lieu of interest which should have been, but was not, awarded. We think the rule in question is too well-established to be altered now, at least at our level. While arguments may be made, pro and con, for its soundness as an original proposition, it was announced by the Supreme Court and has been followed by admiralty judges of the stature of Learned and Augustus Hand. The June Ames, supra. There is much to be said in the world of shipping and commerce for predictability, simplicity and stability of rules, so that shipowners and insurers may plan their financial exposure. PCI could have insured itself against the consequences of loss of use of this special barge had it thought to do so. G. Gilmore & C. Black, The Law of Admiralty § 4-22 (2d ed. 1975); Arnould, Marine Insurance § 300 n.73 (15th ed. 1961).
12407093-5242	OPINION PER CURIAM Debbie Hughey appeals from the District Court’s dismissal of her complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). For the following reasons, we will affirm. In June 2017, Hughey filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983, accompanied by an application to proceed in forma pauperis, in the United States District Court for the Eastern District of Pennsylvania. Hughey alleged in her complaint that she was a passenger in a SEPTA bus when it was hit by another vehicle. Hughey asserted that this accident was due to the “careless[] and negli-gente ]” conduct of both drivers. As a result of this accident, Hughey brought suit in state court. Hughey’s case was submitted to compulsory arbitration, which resulted in a finding in her favor, with an award of $0.00. Hughey appealed the arbitration award. As of the date of this opinion, Hughey’s petition for allowance of appeal with the Pennsylvania Supreme Court is pending. In her complaint, Hughey additionally alleged that defendants violated her civil rights during her state court proceedings by forcing her into mandatory arbitration and depriving her of due process and jury trial rights. By order entered June 30, 2017, the District Court granted Hughey leave to proceed in forma pauperis, and sua sponte dismissed Hughey’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court held that Hughey had failed to state a claim under § 1983, and that her claims were barred by the statute of limitations. Hu-ghey appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of the District Court’s sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “[W]e accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). We may affirm on any basis supported by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). We agree with the District Court that Hughey’s claim related to the motor vehicle accident is barred by the statute of limitations. In her complaint, Hughey sought to remove her state court proceeding to federal court, pursuant to 28 U.S.C. § 1441. If Hughey were permitted to remove her case to federal court, the statute of limitations would not bar her claims from being heard. However, the right to remove a case from state to federal court is reserved to defendants, not plaintiffs. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104-05, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Conner v. Salzinger, 457 F.2d 1241, 1242-43 (3d Cir. 1972). As Hughey is the plaintiff in her state court case, she does not have the right to remove the case to federal court. As a result, Hughey’s federal complaint is a new action that is barred by the statute of limitations. The statute of limi tations for § 1983 claims is governed by the limitations period for state law personal injury claims. See Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). In Pennsylvania, the statute of limitations is two years from the date the claim accrued. See 42 Pa. Cons. Stat. § 5524(2). In her complaint, Hughey alleged that the accident occurred on May 17, 2014, but she did not file in the District Court until June 27, 2017, over three years after the accident took place. On appeal, Hughey merely asserts that her complaint was timely, but fails to provide any explanation for why the District Court’s analysis, was incorrect. Thus, the District Court correctly found that Hughey’s claim regarding the motor vehicle accident is time-barred. Additionally, we find that there is no merit to Hughey’s assertion that the state court proceedings violated her right to due process or a jury trial. Hughey provided only conclusory statements regarding the claimed violations and failed to provide any explanation as to why compulsory arbitration violated her rights. As a result, Hu-ghey failed to state a claim for relief, since merely reciting an element of a cause of action or making a bare conclusory statement is insufficient to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Besides, Hughey appealed the arbitration award, invoked her right to proceed to trial, and her case was listed for the jury pool. Only later was her case dismissed, prior to trial. Hughey does not explain why the compulsory arbitration program violated her right to a jury trial. Cf. Kimbrough v. Holiday Inn, 478 F.Supp. 566, 571 (E.D. Pa. 1979) (finding that compulsory arbitration programs do not “impose conditions so burdensome or so onerous that it interferes with the rights guaranteed by the Seventh Amendment”); Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 118, 394 A.2d 932 (1978) (finding that arbitration, as a condition precedent to trial, does not violate the right to a jury trial under the Pennsylvania Constitution). This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
9051438-9558	ALARCON, Circuit Judge: Coopers & Lybrand appeals from the district court’s order of dismissal, granted pursuant to the doctrine of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The district court concluded that dismissal was appropriate because of the progress of the parallel state court litigation and because the state forum was adequate to resolve the questions presented in this federal action. Coopers & Lybrand seeks reversal on the grounds that the state court does not provide an adequate forum, and a dismissal should not be ordered in cases in which Colorado River deference is applicable. PERTINENT FACTS Coopers & Lybrand served as the outside auditor for the Sun-Diamond cooperatives between 1982 and 1985. The Sun-Diamond cooperatives (Sun-Diamond) are non-profit entities that process and market agricultural products primarily grown by their farmer-members. The net proceeds of these operations are distributed to the members of Sun-Diamond. Sun-Diamond uses an “open-pool” method of accounting. Under this method, Sun-Diamond accepts delivery of its members’ crops in the fall and then pays them a “harvest advance,” based on forecast crop values. According to Coopers & Lybrand, Sun-Diamond’s “open-pool” accounting is not required to follow generally accepted accounting principles (GAAP). As a result, Sun-Diamond may defer certain expenses that would have to be included under GAAP in order to increase the amount of proceeds available for distribution to its members. In 1985, Sun-Diamond reported that $43 million in overpayments had been made to its members. Sun-Diamond attributes these overpayments to inventory overvaluation, inaccurate projections of costs and revenues, improper characterization of accounting items, and erroneous accounting for costs and expenses. Coopers & Lyb-rand contends that these overpayments resulted from Sun-Diamond’s deliberate falsification of financial data given to Coopers & Lybrand in order to induce Coopers & Lybrand to issue unqualified audit reports. The overpayments were disclosed in 1985, prompting Coopers & Lybrand to resign as auditor. On April 16, 1986, Coopers & Lybrand filed suit in the Superior Court for the City and County of San Francisco against Sun-Diamond and various current and former directors and officers of Sun-Diamond, asserting a claim for defamation, premised on Sun-Diamond’s accusation that Coopers & Lybrand was an accomplice in the perpetration of a fraud. Coopers & Lybrand also sought a declaration that it had fulfilled its duties as the independent auditor. Thereafter, in 1986, nine actions relating to the overpayments were filed by Sun-Diamond and related parties in four separate state courts. Coopers & Lybrand was named as a defendant in two class actions and shareholder derivative suits seeking damages, and Sun-Diamond directors sought indemnification from Coopers & Lybrand in a third proceeding. On Sun-Diamond’s petition, the Judicial Council of the State of California consolidated all of these lawsuits, including Coopers & Lybrand’s San Francisco action, into one coordinated proceeding in Fresno Superior Court. In the coordinated proceeding, the state court entered substantive rulings on the merits of the actions while, at the same time, encouraging the parties to reach a comprehensive settlement of the claims. In September 1988, Sun-Diamond settled “a substantial portion” of those claims. Coopers & Lybrand was not a party to the settlement agreement. On December 9, 1988, the state court issued a certification of good faith settlement, pursuant to Cal.Code Civ.P. § 877.6, thereby precluding Coopers & Lybrand from maintaining any indemnity claims against any party to the settlement. This certification was upheld on appeal on August 29, 1989. On November 8, 1988, Coopers & Lybrand filed this federal action. Coopers & Lybrand alleges claims for violation of the Agricultural Fair Practices Act (AFPA), 7 U.S.C. §§ 2301-2306, and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. Coopers & Lybrand also raises pendent state claims for fraud, conspiracy to commit fraud, negligent misrepresentation, and negligence. Sun-Diamond moved to dismiss the complaint under the Colorado River doctrine and for failure to state a claim. On May 26, 1989, the district court entered an order of dismissal, concluding that “the rationale behind the Colorado River doctrine seems well-advanced by its application in this instance.” The district court did not address Sun-Diamond’s motion to dismiss for failure to state a claim. On June 27, 1989, Coopers & Lybrand lodged a request with the district court “to stay for a period of thirty days the finality of the judgment recently entered dismissing Coopers & Lybrand’s complaint ... pursuant to the Colorado River doctrine.” Coopers & Lybrand noted that it was attempting to amend its state court defamation complaint to include the claims that it had asserted in its federal complaint. On June 29, 1989, at the telephone hearing on Coopers & Lybrand’s request for a stay of judgment, the district court commented that [I]f the judge, as I indicated earlier, had the option of precluding the amendment down there in State Court to include the Federal claims because of the apparent jurisdiction, because of the lateness of bringing them or some other ground that was within his discretion so that there would not be a ruling on the merits of those claims, I’d be disposed to simply holding this open until we found out what the rulings were. If he goes ahead and rules on substantive grounds with respect to those Federal claims, ... I suppose that the appeal route is in the State Judiciary.... The district court denied the request for a stay of judgment on June 29, 1989. Coopers & Lybrand filed its timely notice of appeal that same day. On November 8, 1989, Coopers & Lyb-rand filed its first amended complaint in the state court defamation action, by which it sought to assert all claims brought in its federal complaint in the state court litigation. That complaint was amended by Coopers & Lybrand’s second amended complaint, filed on February 12, 1990. By rulings filed March 5 and April 25, 1990, after the district court had entered its order of dismissal, the state court sustained demurrers to all of the causes of action asserted by Coopers & Lybrand in its first and second amended complaints against the directors and officers of Sun-Diamond. At oral argument, Coopers & Lybrand maintained that it is now without a forum in which to address the claims raised in its federal complaint. STANDARD OF REVIEW The Colorado River doctrine is not a recognized form of abstention. Colorado River Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). Instead, it is a form of deference to state court jurisdiction. Federal Deposit Ins. Corp. v. Nichols, 885 F.2d 633, 637 (9th Cir.1989). An exercise of Colorado River deference, however, is reviewed under the same abuse of discretion standard applied to abstention decisions. Id. Abuse of discretion review in the abstention context “ ‘should not be confused with the broader abuse of discretion test used in other matters, such as rulings on certain evidentiary issues.’ ” Id. (quoting American Int’l Underwriters, Inc. v. Continental Ins. Co., 843 F.2d 1253, 1256 (9th Cir.1988)). “ ‘In abstention cases, “discretion must be exercised within the narrow and specific limits prescribed....” Thus the district court judge in this ease [was required to exercise his] discretion within the “exceptional circumstances” limits’ ” of Colorado River deference. Nakash v. Marciano, 882 F.2d 1411, 1413 (9th Cir.1989) (quoting American Int’l Underwriters, Inc. v. Continental Ins. Co., 843 F.2d at 1256) (quoting C-Y Dev. Co. v. City of Redlands, 708 F.2d 375, 377 (9th Cir.1983))). DISCUSSION The district court dismissed Coopers & Lybrand’s federal action, rather than staying it pending resolution of Coopers & Lyb-rand’s state court proceeding, on May 26, 1989. Thereafter, on September 22, 1989, we announced our decision in Attwood v. Mendocino Coast District Hospital, 886 F.2d 241 (9th Cir.1989). In Attwood, we considered the following issue: “[w]hen a district court declines to exercise its jurisdiction under Colorado River, may it dismiss the action without prejudice or must the court merely stay it?” Id. at 242. We held that “the district court should have stayed rather than dismissed Attwood’s action” to ensure that “the federal forum will remain open if ‘for some unexpected reason the state forum does turn out to be inadequate.’ ” Id. at 243 (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28, 103 S.Ct. 927, 943, 74 L.Ed.2d 765 (1983)). “In this way, a stay ‘will effectively conserve court resources while avoiding premature rejection of the litigants’ access ... to a federal forum.’ ” Id. at 244 (quoting Mahaffey v. Bechtel Assoc. Professional Corp., 699 F.2d 545, 546-47 (D.C.Cir.1983)). In addition, “[b]y using a stay, a district court invoking Colorado River will not need to make premature and speculative legal findings about the preclusive effect of various possible state judgments in choosing between a stay and a dismissal.” Id. Thus, Attwood stands for the proposition that district courts must stay, rather than dismiss, an action when they determine that they should defer to the state court proceedings under Colorado River.
9399946-17129	TACHA, Chief Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The ease is therefore ordered submitted without oral argument. Petitioner-appellant Ronald Scott Oliver appeals his convictions for two counts of bank robbery, 18 U.S.C. § 2113(a), (d), and one count of use of a firearm in connection with a crime of violence, id. § 924(c)(1)(A)(ii). Oliver appeals these convictions on the grounds that: (1) the United States Attorney improperly commented on Oliver’s invocation of his rights under Miranda v. Arizona, 384 U.S. 436, 467-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) the trial judge improperly limited Oliver’s Sixth Amendment right to cross-examination; (3) the district court erred by conditionally admitting rebuttal evidence of Oliver’s conviction for driving under the influence (DUI) during the prosecution’s case-in-chief; (4) the district court erroneously refused to clarify the record on appeal; (5) there was insufficient evidence to support the conviction; and (6) these errors, taken cumulatively, warrant a new trial. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I. Facts Between June 18 and July 17, 1999, the First Security Bank was robbed twice (the first and third robberies) and the Zions Bank was robbed once (the second robbery). Both banks are located in grocery stores. After an extensive investigation, police arrested Jerry Petty for the third robbery. In exchange for a possible recommendation for a downward departure in sentencing, Petty agreed to give information and testimony regarding the first two robberies. Petty claimed to have met a man named Scott earlier in the summer of 1999. According to Petty, Scott confided that he had previously robbed the First Security Bank. Petty also said that the pair had robbed the Zions Bank together. An investigation eventually led the police to suspect that Ronald Scott Oliver was “Scott.” Police arrested Oliver after Melinda Jillson, a teller at First Security Bank, identified him as the first robber. Oliver was tried and convicted for the first robbery of First Security Bank and for the robbery of Zions Bank. Oliver appealed, and we now affirm. II. Discussion We address each of Oliver’s six grounds for appeal in turn. A. Prosecutorial Comment on Oliver’s Invocation of his Miranda Rights Oliver first argues that during the course of the trial the prosecutor improperly commented upon Oliver’s invocation of his Miranda rights. This allegation arises out of the following exchange between the United States Attorney and Agent George Dougherty: Q. (U.S.Attorney) And did you prior to instigating that interview give him what are known as Miranda warnings? A. Yes, we did. Q. Did he subsequently exercise his rights under the Miranda warning and not discuss anything with you concerning— Oliver immediately objected and moved for a mistrial. During a recess, the court found that the question was not improper comment upon Oliver’s Miranda rights and denied the motion. The court offered to issue a limiting instruction, which Oliver declined. We review de novo whether a defendant’s Fourteenth Amendment rights have been violated. United States v. Hampshire, 95 F.3d 999, 1004-05 (10th Cir.1996). Use of a defendant’s invocation of Miranda rights against the defendant at trial violates the Due Process Clause of the Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (establishing that prose-cutorial comment upon a defendant’s invocation of Miranda for impeachment purposes is impermissible). A prosecutor’s statement or question relating to the invocation of Miranda rights, however, does not always rise to the level of a constitutional Doyle violation. Greer v. Miller, 483 U.S. 756, 764, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). Analysis under Greer proceeds in two steps. First, we ask whether the prosecutor’s question constituted a “use” of the defendant’s Miranda rights. Greer, 483 U.S. at 763, 107 S.Ct. 3102. If not, our second step is to ask whether the question so unfairly prejudiced the defendant as to rise to the level of a due process violation. Id. at 765, 107 S.Ct. 3102. An affirmative answer to either of these questions warrants reversal, provided that the error is not harmless. Starting with the first step of the Greer test, we find that the prosecutor’s question did not constitute an improper use of Oliver’s Miranda rights. Here, as in Greer, “[t]he fact of [the defendant’s] postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred.” 483 U.S. at 764-65, 107 S.Ct. 3102. In fact, the question in Oliver’s case was even less damaging to the defendant than questions found permissible under Doyle in Greer and in this circuit’s precedents. See, e.g., United States v. Lane, 883 F.2d 1484 (10th Cir.1989). In Greer, for example, a prosecutor asked the defendant, ‘Why didn’t you tell this story to anybody when you got arrested?” Id. at 759, 107 S.Ct. 3102. The defense attorney immediately objected under Doyle. Id. The trial court sustained the objection and issued a curative instruction. Id. The Supreme Court held that [T]he sequence of events at the trial, beginning with the single comment — but including particularly the proper and immediate action by the trial court, and the failure by defense counsel to request more specific instructions — indicates that [the defendant’s] postarrest silence was not used against him within the meaning of Doyle.” Id. at 764 n. 5. The prosecutor’s question in Greer — “Why didn’t you tell this story to anybody when you got arrested”— made plain that the defendant actually had exercised his Miranda rights. Here, the prosecutor’s wording — “Did [Oliver] subsequently exercise his rights under the Miranda warning ... ?” — left open the question of whether Oliver had exercised his Miranda rights. The trial judge then instructed the prosecution to move on until a hearing could be conducted on the motion for mistrial. The judge offered to issue a limiting instruction, which Oliver rejected. After the incident, there was no further comment by the United States Attorney. We are thus confronted with a situation almost identical to Greer. In Lane, this court declined to find a Doyle violation in similar circumstances, but where the prosecutor’s question about the invocation of Miranda elicited an answer. Lane, 883 F.2d at 1493-95. In Lane, the following exchange took place between a prosecutor and an F.B.I. agent: Q. Did you advise him of his rights there? A. Yes. Q. Did he — he understood his rights? A. He did. Q. Did he say he would answer questions? A. He did to a limited extent. Q. Did he say he would answer questions but not others? A. That’s true. Id. at 1493. The trial judge sustained an objection, instructed the jury not to consider the testimony, and the prosecutor made no further mention of the defendant’s postarrest silence. Id. at 1493-94. We found no Doyle violation, and affirmed. Id. at 1494-95. The single unanswered question in Oliver’s case carried less potential for damage than the exchange in Lane or the question in Greer, making it clear that the question at issue here does not warrant a reversal under Doyle. Applying the second step of the Greer test, we find that the prosecutor’s question did not “so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process.” Greer, 483 U.S. at 765, 107 S.Ct. 3102 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The United States concedes on appeal that the prosecutor posed an improper question. Prosecutorial misconduct, however, must be “ ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial’ ” before it will rise to the level of a due process violation. Id. The comment must be placed in the context of the whole trial, and not viewed in isolation. Id. at 766, 107 S.Ct. 3102 (citing Darden v. Wainwright, 477 U.S. 168, 179, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). The single, unanswered question posed at Oliver’s trial fails to meet this standard. Moreover, as evidenced by the sidebar that followed, the United States did not engage in an intentional attempt to infect the trial. Rather, the United States Attorney held a good-faith belief that the question was proper (a belief that the trial court sustained). The prosecutor’s knowledge of case law to support her position only lends credence to this belief. We find no grounds for reversal under either step of the Greer test. B. Cross Examination Limitations Oliver next complains that limitations on his cross-examination of Petty violated his confrontation rights under the Sixth Amendment. At trial, Oliver attacked Petty’s truthfulness on cross-examination by eliciting facts regarding Petty’s numerous failures to appear in court. He also attempted to discredit Petty’s testimony by examining the details of Petty’s plea bargain and his motives for entering into it. The district court allowed exploration of these general areas. The court did not, however, allow Oliver to inquire about the specific nature of charges pending against Petty, the specific amounts of jail time Petty might serve, or the specific nature of the underlying charges in his failures to appear. We review de novo whether restrictions on cross-examination violated a defendant’s Sixth Amendment confrontation rights. United States v. Gault, 141 F.3d 1399, 1403 (10th Cir.1998). The right to cross-examine witnesses is an integral part of the broader Sixth Amendment right to confront witnesses directly in a criminal trial. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Crespin v. New Mexico, 144 F.3d 641, 646 (10th Cir. 1998). While this right is potentially broad enough to require admission of evidence that is otherwise excludable under the Federal Rules of Evidence, see United States v. Abel, 469 U.S. 45, 56, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (requiring the admission of evidence that might otherwise be inadmissible under Rule 608(b)), it is not an absolute right, Gault, 141 F.3d at 1403. The Confrontation Clause guarantees “only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20,106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam). Accordingly, trial court judges may impose reasonable limitations on cross-examination based upon concerns of “harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (finding a Confrontation Clause violation where the trial court barred all questioning about an event that might have demonstrated a motive to lie). On review, our task is to determine ‘“whether the jury had sufficient information to make a discriminating appraisal of the witness’ motives and bias.’ ” Gault, 141 F.3d at 1403. The Confrontation Clause does not require the admission of potentially inflammatory and irrelevant testimony when a defendant has other avenues to attack a witness’s credibility. Consistent with this principle, the district court in this case imposed only reasonable limits on cross-examination and afforded Oliver ample opportunity to portray Petty as biased and motivated to lie. The limitations did not significantly impede Oliver’s ability to challenge the “believability of [the] witness and the truth of his testimony.” Davis, 415 U.S. at 316, 94 S.Ct. 1105. Oliver was able to elicit that Petty had an extensive criminal history, a serious drug problem, a history of using fake names and identifications, and a record of failing to appear in court after signing promises to do so. Oliver also showed that Petty was able to receive a downward departure in sentence only after cooperating with the government. The court allowed Oliver to cross-examine Petty thoroughly regarding the nature of his actual plea agreement with the government and his motives for entering into it, as required by Davis v. Alaska, 415 U.S. at 316-17, 94 S.Ct. 1105. Oliver explored Petty’s felony convictions. He also introduced witnesses who testified to Petty’s history of lying. We find no Confrontation Clause violation. C. Conditional Admission of Evidence The teller at First Security bank, Melinda Jillson, testified that the robber “reeked of alcohol.” Oliver attempted to discredit this identification by introducing evidence at trial that he did not drink. In anticipation of this argument, the United States introduced a letter from Oliver that indicated that he had received a DUI conviction. The United States also elicited foundational testimony from the letter’s recipient. No testimony as to the letter’s contents was entered. The district court admitted the letter into evidence over Oliver’s objection on the conditions that Oliver actually introduce testimony that he did not drink and that the United States prove that the DUI was alcohol-related. The first condition was satisfied. The United States eventually discovered, however, that the DUI was methamphetamine-related, rather than alcohol-related. The United States withdrew the letter, which was never published to the jury. Later, during its deliberations, the jury sent a note to the court requesting to see the letter. The district court replied with a one-word response: “No.” Oliver alleges that this sequence of events was improper under the Federal Rules of Evidence. We review a challenge to the district court’s ruling on admission of evidence for an abuse of discretion. United States v. McVeigh, 153 F.3d 1166, 1188 (10th Cir.1998). Federal Rule of Evidence 104(b) provides that “[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of that condition.” The district court here admitted the letter regarding Oliver’s DUI on the condition that the government offer proof that it was alcohol-related. When it became clear that the DUI was the result of driving under the influence of methamphetamine, rather than alcohol, the evidence was withdrawn. It was never published to the jury. The district court admitted the evidence conditionally as required by Rule 104(b), and the prosecution withdrew the evidence when it could not satisfy the condition. The court did not abuse its discretion. Nor is the fact that the jury asked to see a copy of the letter of any concern. The jury could not improperly consider or focus upon a letter that it never saw. Oliver’s suggestion that the jury was entitled to a more expansive explanation from the judge than a one-word explanation is puzzling at best. Such an explanation would only have drawn attention to the withdrawn evidence and might have raised suspicions about its contents. The district court did not err by failing to elaborate on the reason for the letter’s withdrawal. D. The District Court’s Refusal to Supplement the Record During post-trial motions, Oliver moved to supplement the record with a photograph of a tattoo on his arm. The district court denied the motion because the pictures had not been submitted to the jury at trial. Oliver followed this up with a written motion to supplement the record. The district court found that Oliver had “displayed his arm and the tattoo” to the jury and that the defense “did not submit photographs of the tattoo at trial.” The court therefore found “that the record adequately discloses what occurred at trial” and refused to clarify the record further. We review a refusal to clarify the record for an abuse of discretion. Gillette v. Tansy, 17 F.3d 308, 313 (10th Cir.1994). Federal Rule of Appellate Procedure 10(e) allows supplementation of the record only where it is necessary to “truly disclose[ ] what occurred in the district court.” United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir.2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1406, 149 L.Ed.2d 348 (2001) (quoting Fed. R.App. P. 10(e)) (alteration in original). The record reveals extensive discussion of Oliver’s tattoo, which the jury apparently saw firsthand. Testimony describes Oliver’s tattoo in detail. We thus see no need to include an actual photograph of the tattoo in the record. The district court did not abuse its discretion by refusing to add the photograph. E. Sufficiency of the Evidence Oliver contends that the evidence discredited Jillson’s identification of him, that Petty lacked credibility, and that the photograph from the second robbery did not show a tattoo. He argues that there is therefore insufficient evidence to support his conviction.
865844-13479	PER CURIAM. On February 14, 2001, the grand jury issued an eight-count superseding indictment against nine defendants. Count I of the superseding indictment charged Defendant-Appellant Ernest Tate and six others with a conspiracy to possess with intent to distribute and to distribute over five kilograms of cocaine and over fifty grams of cocaine base in violation 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The indictment alleged that from 1995 to 2000 the defendants conspired to transport cocaine from California and to distribute cocaine and cocaine base in the Cleveland, Ohio, area. Tate was convicted by a jury and sentenced to 292 months in prison. Tate appeals his conviction and sentence. For the reasons that follow we affirm the conviction and remand for resentencing in light of United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). I. Tate’s first argument on appeal is that the trial court committed prejudicial error when it failed to strike testimony or give a curative instruction when testimony of defendant’s previous incarceration came into the record. Prior to co-defendant Willard Osborn’s testimony, both the prosecution and the trial court instructed Osborn not to mention that Tate had been in prison. Nevertheless, during cross-examination, in response to defense counsel’s question whether he had delivered money to Tate’s wife for eighteen months, Osborn replied, “[n]ot soon as he went to jails [sic], but probably somewhere around there, after-wards.” Defense counsel asked that the answer be stricken and that the jury be requested to disregard it. The court said, “I don’t understand what’s wrong with the answer.” Defense counsel responded that it was nonresponsive. The court then directed counsel to ask the question again. Osborn moved for a new trial on the basis of the trial court’s failure to strike the testimony or give a curative instruction. During the hearing on the motion the trial court explained that it had not heard the reference to “jails” and accordingly had not understood defense counsel’s request. Counsel for the government also advised that it did not hear the reference to “jails,” and that had it heard this reference it would have requested a curative instruction. We review a trial court’s decision not to grant a mistrial for abuse of discretion. United States v. Forrest, 17 F.3d 916, 919 (6th Cir.1994) (citing United States v. Chambers, 944 F.2d 1253, 1263 (6th Cir. 1991)). On review our primary concern is fairness to the defendant. Id. We consider five factors in determining whether a mistrial is warranted after an improper reference: (1) whether the remark was unsolicited, (2) whether the government’s line of questioning was reasonable, (3) whether the limiting instruction was immediate, clear, and forceful, (4) whether any bad faith was evidenced by the government, and (5) whether the remark was only a small part of the evidence against the defendant. Zuern v. Tate, 336 F.3d 478, 485 (6th Cir.2003) (citing Forrest, 17 F.3d at 920). Three of these five considerations concern the government’s responsibility for the admission of the improper comment. There is no question that it was improper for Osborn to comment on Tate’s prior incarceration and that a cautionary instruction would have been advisable. Nevertheless, it should have been clear from the trial court’s response to the request for a cautionary instruction that the court had not heard or understood the witness’ answer. Under the circumstances it was incumbent on defense counsel to clarify why the witness’ answer was not responsive and why a cautionary instruction was called for. Furthermore, in this case the government did not solicit the improper response and there is no assertion that the response came in as the result of any bad faith on the part of the government. On the whole it appears that the improper comment was inadvertent, isolated, not clearly stated, and constituted only a very small part of the total evidence against Tate. Accordingly, we conclude that the trial court did not abuse its discretion in denying Tate’s motion for new trial. II. Tate’s second argument on appeal is that the trial court abused its discretion by not permitting defense counsel to cross-examine a witness on his career offender status. During cross-examination of Osborn, defense counsel asked Osborn whether anyone told him during his plea negotiations that he was subject to the career offender provisions of the United States Sentencing Guidelines. In response to the government’s objection, the trial court ordered the question stricken and advised the jury to disregard it. The right to cross-examine prosecution witnesses is rooted in the Sixth Amendment. Wright v. Dallman, 999 F.2d 174, 179 (6th Cir.1993). Nevertheless, a trial court retains broad discretion to limit the scope of cross-examination. United States v. Chance, 306 F.3d 356, 385 (6th Cir.2002) (citing United States v. Mohney, 949 F.2d 1397, 1409 (6th Cir.1991)). “Trial judges have latitude to ‘impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” ’ United States v. Beverly, 369 F.3d 516, 535-36 (6th Cir.2004) (quoting United States v. Blakeney, 942 F.2d 1001, 1022 (6th Cir.1991)). We review a trial court’s rulings on the scope of cross-examination for abuse of discretion. Chance, 306 F.3d at 385. In assessing whether the trial court abused its discretion, we must decide whether, despite the limitation of cross-examination, “the jury was otherwise in possession of sufficient information ... to make a ‘discriminating appraisal’ of a witness’ motives and bias.” United States v. Kone, 307 F.3d 430, 436 (6th Cir.2002) (quoting Stevens v. Bordenkircher, 746 F.2d 342, 347 (6th Cir.1984)). Cross-examination of Osborn on the issue of his career offender status was not essential to defense counsel’s ability to show Osborn’s motives and bias. The jury had sufficient information to make a “discriminating appraisal” of whether Osborn was testifying in exchange for lenient treatment at sentencing. During cross-examination Osborn admitted that he had two prior felony convictions before entering his plea of guilty in this case, that the judge told him he was facing ten years to life in prison, that by his plea he was limiting his exposure to a possible sentence of only 11 to 15 years, and that he was testifying on the advice of counsel. Testimony regarding the operation of the United States Sentencing Guidelines would have been cumulative, time consuming, and confusing to the jury. Accordingly, we find no abuse of discretion in the trial court’s decision not to allow questioning on the issue of Osborn’s alleged career offender status. III. Tate’s third argument on appeal is that the trial court deprived him of a fair trial by endorsing and vouching for the credibility of the government and its case. Co-defendant Lawrence Hackney testified on behalf of the government that he rejected the first plea agreement offered by the government and signed a second plea agreement. Defense counsel moved for production of the rejected plea offer. The government represented that the first and second plea agreements were the same with the exception of the name of the defense counsel. After the jury was excused the government advised that the first plea agreement had been destroyed and expressed its concern regarding the implication that it had withheld information from the defense. In response to a question from the trial judge Hackney advised that he did not sign the first agree ment because it stated that the conspiracy involved crack cocaine which was untrue. When the jurors returned to the courtroom the trial judge instructed them not to presume that the government acted improperly merely because the plea agreement that was rejected by the defendant no longer existed. Tate assumes that because the government’s representations regarding the first plea agreement conflicted with Hackney’s testimony the government must have misrepresented the contents of the first plea agreement to the court or else Hackney must have committed perjury. Tate accordingly contends that the trial court’s instruction not to presume any impropriety from the failure to preserve the first plea agreement improperly resolved a factual issue that should have been left for the jury and improperly endorsed and vouched for the credibility of the government and its case. Because Tate did not object to the trial court’s instruction regarding the first plea agreement, we review the instruction for plain error. Fed. R.Crim. P. 52(b); United States v. Cromer, 389 F.3d 662, 672 (6th Cir.2004). Pursuant to plain error review, if there is plain error that affects a defendant’s substantial rights, we may exercise our discretion to notice the forfeited error, but only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Cromer, 389 F.3d at 672 (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Contrary to Tate’s assertions, by instructing the jury not to draw any presumptions of irregularity from government’s inability to produce an unsigned plea agreement, the trial court did not vouch for the government’s case or condone a violation of the government’s disclosure requirements under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). It is well within the trial court’s discretion to cure an unwarranted inference of improper conduct. It is also within the trial court’s discretion to limit cross-examination on collateral matters such as the content of a plea agreement that was never signed by the witness. Accordingly, we conclude that the trial court’s instruction regarding the unsigned plea agreement did not constitute plain error, much less error affecting substantial rights or the fairness of the proceedings. IV. Tate’s fourth argument on appeal is that there was insufficient evidence to convict him of conspiracy to possess and distribute cocaine. Tate does not deny that there was ample evidence that he agreed with others to sell drugs. He contends, however, that the government witnesses were not credible because they were all drug traffickers, who were facing federal drug charges and who would have done anything, including commit perjury, to have their sentences reduced. “When reviewing a claim of insufficient evidence, we examine the evidence in the light most favorable to the government and draw all inferences in the government’s favor in order to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt.” United States v. Robinson, 389 F.3d 582, 591 (6th Cir.2004) (quoting United States v. Maliszewski, 161 F.3d 992, 1005 (6th Cir.1998)). A defendant challenging the sufficiency of the evidence “bears a very heavy burden.” United States v. Henley, 360 F.3d 509, 513 (6th Cir.2004) (quoting United States v. Spearman, 186 F.3d 743, 745 (6th Cir.1999)). “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” Id. (quoting Spearman, 186 F.3d at 745). “Furthermore, it is well-settled that uncorroborated testimony of an accomplice may support a conviction in federal court.” Id. (quoting Spearman, 186 F.3d at 745). In this case the government presented substantial evidence establishing Tate’s active participation in the conspiracy, particularly through the testimony of Osborn and Hackney, which was corroborated with the tape recorded phone conversations between Osborn and Tate. Here, as in Henley, much of the evidence was from co-conspirators who had an incentive to testify against Tate. Nevertheless, as we said in Henley, the credibility of those witnesses was for the jury to decide: We certainly recognize that the prospect of a reduced sentence could have provided a powerful incentive for Henley’s co-conspirators to testify against him. Whether that incentive affected the credibility of their testimony, however, is for the jury to decide. The jury in this case was aware that Sanders and Luy had reason to believe that they could benefit from a reduction in their sentences as a result of their testimony against Henley. We simply cannot second-guess the jury’s determinations with regard to whether and to what extent that motive may have affected those witnesses’ credibility. Henley, 360 F.3d at 514. The jurors in this case were aware that the alleged co-conspirators who testified against Tate had reason to believe that they could obtain a reduction in their sentences as a result of their cooperation with the government. They had the information necessary to enable them to critically examine the witnesses’ credibility. Under these facts, we hold that any rational trier of fact could conclude that the United States met its burden of proving that Tate conspired to distribute cocaine. V. Tate’s fifth argument on appeal is that the trial court erred in not granting the defendant a two-level reduction pursuant to U.S.S.G. § 3B1.2(b) for being a “minor participant” in the offense. Tate contends that the minimal nature of his role was corroborated by the fact that much of the activity occurred while he was incarcerated.
4207566-11130	PER CURIAM. Defendant Harold Chorney, having been ordered in 1994 to pay $569,469 in restitution as part of a criminal sentence, appeals from a recent district court order requiring him to make installment payments of $500 per month. His principal arguments on appeal are that (1) the installment-payment provision is inapplicable and (2) his only two sources of income — a monthly social security benefit and a monthly veterans disability benefit — cannot be considered in determining his financial ability to make such payments. Each of these arguments raises some knotty questions, as we will briefly explain. Each of them is also procedurally defaulted, not having been raised in timely fashion in district court. As a result, neither the magistrate judge nor the district judge addressed them below; more surprisingly, the government has not addressed them on appeal. Nor has the government mentioned defendant’s procedural default — an omission which would allow us to deem that defense forfeited and proceed to the merits. See, e.g., Sotirion v. United States, 617 F.3d 27, 32 (1st Cir.2010). But such a course is not obligatory, see, e.g., Pike v. Guarino, 492 F.3d 61, 74 (1st Cir.2007), and we are reluctant to undertake a resolution of these issues on the merits absent meaningful input from the parties and the district court. As it happens, defendant is in a position to seek a modification of the installment order, as permitted by 28 U.S.C. § 3204(b), due to a change in his financial circumstances (stemming from his recent move out of his girlfriend’s home). Under the circumstances, we think the prudent course is to affirm the district court judgment on the basis of lack of plain error, but without prejudice to defendant pursuing these same two arguments at any such reopened proceeding. The government would there be free to raise any available argument in rebuttal, except of course for a res judicata defense based on events in the instant appeal. We here will simply highlight the key issues raised by defendant’s first two contentions, without intimating any view as to the proper disposition thereof. We will also affirm the dismissal of a third contention with prejudice for lack of merit. 1. Defendant contends that the installment-payment provision, set forth in 28 U.S.C. § 3204, is inapplicable by its very terms. Enacted in 1990 as part of the Federal Debt Collection Procedure Act (FDCPA), § 3204 authorizes an installment order only if it is shown that the judgment debt- or— (1) is receiving or will receive substantial nonexempt disposable earnings from self employment that are not subject to garnishment; or (2) is diverting or concealing substantial earnings from any source, or property received in lieu of earnings. 28 U.S.C. § 3204(a). See, e.g., S.P. Davis, Sr. v. United States, 2011 WL 4712077, at 2 (W.D.La.2011) (stating that government “must make a showing” that one of these conditions is present). Defendant insists that neither condition has been satisfied; there has been no showing, he contends, that his social security or veterans benefits are derived “from self employment,” or that he is “diverting or concealing” any earnings. On the basis of the present record, it is difficult to come to a different conclusion. But defendant did not raise this issue until seeking reconsideration of the district judge’s decision. He has thus failed to preserve the matter for appeal. See, e.g., Dillon v. Select Portfolio Servicing, 630 F.3d 75, 80 (1st Cir.2011). Ordi narily, we would proceed to review for plain error, inquiring whether there was (1) an error that (2) was plain and that (3) affected substantial rights and (4) seriously affected the fairness, integrity or public reputation of judicial proceedings. See, e.g., United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). But no such extended analysis is necessary here. Even if plain error were present, we would refrain as a matter of discretion from correcting it, given defendant’s ability to pursue the matter in a reopened proceeding under 28 U.S.C. § 3204(b). See, e.g., United States v. Gilberg, 75 F.3d 15, 22 (1st Cir.1996) (“Olano entrusts remediation of plain error to the sound discretion of the reviewing court”). Defendant also contends that § 3204(a) is inapplicable for a separate reason. He notes that, prior to 1996, the FDCPA could only be used to collect restitution and other debts owed to the government, not to private entities. See, e.g., United States v. Bongiorno, 106 F.3d 1027, on rehearing, 110 F.3d 132 (1st Cir.1997). The 1994 restitution order here directs payment to be made to the Department of Justice “for the benefit” of the FDIC. Defendant asserts that, back in 1999 in a related bankruptcy proceeding, the FDIC assigned all of its interest to a private entity. Yet even if so, he fails to explain why a creditor’s claim in a bankruptcy proceeding is the same thing as a designated payee’s interest in restitution. In any event, defendant acknowledges that he failed to make this argument below, and plain error is lacking. But he remains free to pursue the matter further at a reopened proceeding. 2. Section 3204 also provides that no installment order may be issued “with respect to any earnings of the debtor except nonexempt disposable earnings.” 28 U.S.C. § 3204(c)(2). Defendant contends that his social security and veterans benefits are “exempt” — not only under § 3204(c)(2) for purposes of an installment order, but also more generally for purposes of any restitution order. This argument has mostly surfaced for the first time on appeal. One might consider this exemption issue from any of three separate angles. First, one might turn to 28 U.S.C. § 3014(a), which is entitled “exempt property” — a provision mentioned by neither party. It states that in a “proceeding under this chapter” {e.g., a § 3204 motion for installment payments), a debtor may elect to “exempt property ... that is specified in § 522(d) of title 11, as amended from time to time.” 28 U.S.C. § 3014(a)(1). Section 522(d), in turn, refers inter alia to a “debt- or’s right to receive ... a social security benefit ..., a veterans’ benefit, [or] a disability ... benefit.” 11 U.S.C. § 522(d)(10)(A)-(C). Pointing to the “right to receive” language, some courts have held that this provision exempts “future” benefits but not “payments which have already been received.” In re Carpenter, 614 F.3d 930, 935 (8th Cir.2010). If so, query whether § 3014(a) prohibits a court from considering such benefits when estimating a defendant’s ability to make installment payments under § 3204. Second, one might rely on the anti-alienation provisions contained within the Social Security Act (SSA) and the Veterans’ Benefits Act (VBA) — as defendant has done, albeit only on appeal. The SSA provision states in pertinent part that “none of the moneys paid or payable ... under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process.” 42 U.S.C. § 407(a). The VBA provision is equally emphatic: “Payments of benefits ... made to ... a beneficiary ... shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.” 38 U.S.C. § 5301(a). These provisions apply to benefits even “after they have been distributed to beneficiaries.” Hoult v. Hoult, 373 F.3d 47, 56 (1st Cir.2004) (§ 407(a)); accord Porter v. Aetna Cas. & Surety Co., 370 U.S. 159, 82 S.Ct. 1231, 8 L.Ed.2d 407 (1962) (§ 5301(a), then codified as § 3101(a)). Accordingly, seizure of social security or veterans benefits to pay a court-ordered fine or restitution would appear improper. See, e.g., Bennett v. Arkansas, 485 U.S. 395, 108 S.Ct. 1204, 99 L.Ed.2d 455 (1988) (per curiam) (invalidating scheme attaching inmates’ social security benefits to help defray costs of maintaining prison). The closer question is whether such benefits can be taken into account simply to determine an individual’s ability to pay a fine or restitution. See United States v. Merric, 166 F.3d 406, 412 (1st Cir.1999) (raising matter sua sponte in ¶ 407(a) context for possible consideration on remand, and noting that “[t]he point is an obscure one, raised more by ease law than statutory language”). Relevant case law does not appear to yield a clearcut answer. Compare, e.g., United States v. Lampien, 2001 WL 32753, at 4 n.3 (7th Cir.2001) (applying United States v. Eggen, 984 F.2d 848 (7th Cir.1993)), and Gleave v. Graham, 954 F.Supp. 599, on reconsideration, 4 F.Supp.2d 163 (W.D.N.Y.1997), aff'd, 1998 WL 352947 (2d Cir.1998), with, e.g., United States v. Smith, 47 F.3d 681, 684 (4th Cir.1995). Third, one might invoke the restitution procedures set forth in the Mandatory Victims Restitution Act of 1996 (MVRA), as both parties have done here. Among other features, the MVRA makes civil remedies for satisfaction of an unpaid fine available for the enforcement of an order of restitution. See 18 U.S.C. §§ 3613(f), 3664(m)(l)(A). The key enforcement provision is set forth in § 3613(a): The United States may enforce a judgment imposing a fine in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law. Notwithstanding any other Federal law (including section 207 of the Social Security Act [42 U.S.C. § 407]), a judgment imposing a fine may be enforced against all property or rights to property of the person fined.... Id. § 3613(a). Three exceptions to this rule are enumerated, two of which are relevant here: (1) property exempt from levy for taxes pursuant to section 6334(a)(1), (2), (3), (4), (5), (6), (7), (8), (10), and (12) of the Internal Revenue Code of 1986 shall be exempt from enforcement of the judgment under Federal law; (2) section 3014 ... of title 28 shall not apply to enforcement under Federal law.... Id. § 3613(a)(1), (2). If § 3613(a) applies here, any “exemption” argument relying on 28 U.S.C. § 3014 would be defunct, as would any such argument invoking the SSA’s anti-alienation provision, 42 U.S.C. § 407. Moreover, defendant’s reliance on the VBA’s anti-alienation provision, 38 U.S.C. § 5301(a), might also be misplaced. Among the provisions excepted in subsection (a)(1) is IRC § 6334(a)(10). Entitled “[cjertain service-connected disability pay ments,” this provision refers to “[a]ny amount payable to an individual as a service-connected ... disability benefit” under various provisions of title 38. If the protection afforded by § 6334(a)(10) were narrower than that afforded by § 5301(a), the former would apparently control since it, not § 5301(a), is cited in the § 3613(a) exception. Several courts have held that veterans benefits are no longer “payable” under § 3664(a)(10) once they have been received. See, e.g., Calhoun v. United States, 1995 WL 411832, at *1 (Fed.Cir.1995) (per curiam). If so, query whether such benefits can be considered under the MVRA in determining the amount of monthly restitution one can afford to pay.
10540348-26744	EDWARD C. REED, Jr., Chief District Judge: The estate appeals the Tax Court’s determination that a bequest to Isabelle J. Heim, surviving spouse of the deceased, was a nondeductible terminable interest under section 2056 of the Internal Revenue Code (26 U.S.C.); that section 1036 of the California Probate Code did not apply to save the bequest from the terminable interest rules; and that the estate therefore was not entitled to a marital deduction. We affirm the decision of the Tax Court. I. FACTS On November 12, 1981, Carl I. Heim (hereinafter “Mr. Heim” or “decedent”) died testate, a resident of California, leaving a will wherein he bequeathed all of his estate “of whatsoever kind and nature and wheresoever situated to my wife, ISABELLE J. HEIM.” The decedent’s will provided that, in the alternative, the gift would pass to the children of his wife if she “should predecease me or fail to survive distribution.” His wife, Isabelle J. Heim (hereinafter “Mrs. Heim” or “surviving spouse”), survived the decedent. On January 3, 1984, the Superior Court for the State of California for the County of Orange entered its final order distributing the estate as provided in decedent’s will. The superior court found that “[a]ll of the estate is bequeathed to the decedent’s wife, ISABELLE J. HEIM, if she survived distribution; she is now surviving; and distribution of the estate should be made to her.” On its estate tax return, the estate claimed a marital deduction of $344,754, one-half of the reported adjusted gross estate. Upon auditing the return, the Internal Revenue Service (IRS) determined that $207,497 transferred to the surviving spouse under decedent’s will was a nondeductible terminable interest, and therefore reduced the marital deduction to $137,257. Based on the reduced marital deduction, the IRS assessed a deficiency in estate tax of $62,513. The estate petitioned the United States Tax Court for a redetermination of the deficiency pursuant to 26 U.S.C. § 6213 (1989). The tax court denied the estate’s request for a redetermination, holding that the estate was not entitled to a marital deduction for the value of the interest which passed to the surviving spouse. Because vesting of the gift to Mrs. Heim was conditioned upon her survival until distribution, the court found that this condition rendered the interest terminable, and therefore nondeductible, under Internal Revenue Code section 2056. The court further held that California Probate Code section 1036 did not operate to reform the surviv-orship provision by limiting it to six months, since there was no evidence that the testator intended the gift to his wife to qualify for a marital deduction. The tax court had jurisdiction to consider redetermination of the deficiency under I.R.C. sections 6214 and 7442. This appeal is timely filed, and jurisdiction lies under I.R.C. section 7482. II. DISCUSSION A. Standard of Review We review Tax Court decisions “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” 26 U.S.C. § 7482(a)(1) (1989). See Guth v. Commissioner, 897 F.2d 441, 443 (9th Cir.1990). Federal Rule of Civil Procedure 52(a) mandates use of a clearly erroneous standard in review of district court fact-finding. Therefore, the Tax Court’s factual determination regarding intent of the testator will be reviewed for clear error. See id. Because Mr. Heim lived in California, California law governs construction of his will. De Oliveira v. United States, 767 F.2d 1344, 1347 (9th Cir.1985). Under California law, construction of the testator’s will is a question of law, subject to de novo review, unless that construction turns on the credibility of extrinsic evidence. Id. If extrinsic evidence renders the language of the will susceptible to two or more meanings, the will is said to be ambiguous and the construction of the will then turns on the credibility of the extrinsic evidence. Extrinsic evidence is admissible to make this determination, and it is reviewed for clear error. On the other hand, if extrinsic evidence does not render the will susceptible to two or more meanings, then the will is deemed not ambiguous, such extrinsic evidence thereafter is disregarded, and the plain language of the will is relied upon to determine the intent of the testator. In this ease, the tax court found that the will was unambiguous, and that the intent of the testator could be determined from the face of the will. This conclusion is not clearly erroneous, and we affirm this finding. Therefore, we proceed with a de novo review of the will to determine the intent of the testator. Further, questions of state law are reviewed under the same independent de novo standard as are questions of federal law. Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc). Neither former Probate Code section 1036, nor current Probate Code section 21525 have been construed by any California court; therefore, this Court must place itself in the position of the California Supreme Court in ruling on the applicability of Probate Code section 1036. Prestin v. Mobil Oil Corp., 741 F.2d 268, 270 (9th Cir.1984). B. The I.R.C. 1. Does the bequest contained in the will constitute a nondeductible terminable interest under section 2056 of the Internal Revenue Code? Section 2056(a) of the I.R.C. provides that in determining the value of the taxable estate, an estate may, subject to certain limitations, deduct from the gross estate a marital deduction, in an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse. The marital deduction was enacted to equalize the effects of federal estate taxes in common law and community property states. See S.Rep. No. 1013, 80th Cong., 2nd Sess. (1948) (1948-1 C.B. 285, 303-306), reprinted in 1948 U.S.Code Cong. & Admin.News 1163, 1222, 1224; Jackson v. United States, 376 U.S. 503, 510, 84 S.Ct. 869, 873, 11 L.Ed.2d 871 (1964). In theory, property owned by the marital unit should be subject to a single estate tax. In community property states, each spouse is deemed to own one-half of the community property. Therefore, one-half of the community property generally is taxed in the estate of the first to die (the decedent); the remaining one-half is taxed when transferred (either inter vivos or testamentary) by the surviving spouse. The marital deduction permits transfer of property within the marital unit, and thus avoidance of taxation of that property in the estate of the decedent, only if the property passes outright to the surviving or donee spouse. S.Rep. No. 1013, Part 2 at 28 (1948-1 C.B. at 305), reprinted in 1948 U.S.Code Cong. & Admin.News at 1228-31. This defers taxation of that property until it is transferred by the surviving spouse. However, subsection (b)(1) disallows any marital deduction for terminable interests, that is, interests passing to the surviving spouse which will fail or lapse under certain conditions. In relevant part, section 2056(b)(1) provides: (b) Limitation in the case of life estate or other terminable interest. (1) General rule. Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest— (A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and (B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse.... Given the structure of the marital deduction, the purpose of the nondeductible terminable interest rule is apparent. For example, if an estate in a common law jurisdiction was permitted to deduct a life estate which passed from the decedent to the surviving spouse, the decedent’s estate could avoid taxation at the first level. The surviving spouse would have full use and enjoyment of the property during life. However, upon death of the surviving spouse, that property would pass to a third person, as directed by the decedent. Because the property would not be included in the estate of the surviving spouse, it would avoid taxation at the second level, thereby escaping taxation entirely. See Allen v. United States, 359 F.2d 151, 154 (2nd Cir.1966), cert. denied, 385 U.S. 832, 87 S.Ct. 71, 17 L.Ed.2d 67 (1966). This is precisely the type of “abuse and tax avoidance” that the nondeductible terminable interest rule was designed to prevent. Estate of Reilly v. Commissioner, 239 F.2d 797, 799 (3rd Cir.1957). See also Allen, 359 F.2d at 153-54. The nondeductible terminable interest rule seeks to ensure that property is taxed either in the estate of the decedent, or in the estate of the surviving spouse. If the interest passing to the surviving spouse “may by any event ultimately pass from the decedent to any other person for less than full consideration,” that interest is terminable, and therefore not deductible by the decedent’s estate. Estate of Reilly, 239 F.2d at 799. As set forth in the statute, a terminable interest exists if three conditions are met. First, the interest must be one that will lapse or terminate upon the occurrence or nonoccurrence of an event, or upon lapse of time; second, upon the failure of the interest of the surviving spouse, the interest in property must be one that will pass from the decedent to someone other than the surviving spouse for less than adequate and full consideration; and third, the person to whom the property passes must be able to enjoy or possess the property after failure of the interest of the surviving spouse. With certain exceptions not rele vant here, an interest bequeathed to a surviving spouse will qualify for the marital deduction unless all three of these conditions have been met. Allen, 359 F.2d at 154. The nature, extent, and character of the surviving spouse’s interest in property must be determined by state law. Commissioner v. Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1783, 18 L.Ed.2d 886 (1967); Bookwalter v. Lamar, 323 F.2d 664, 667 (8th Cir.1963), cert. denied, 376 U.S. 969, 84 S.Ct. 1135, 12 L.Ed.2d 84 (1964); Estate of Cunha v. Commissioner, 279 F.2d 292, 297 (9th Cir.1960), cert. denied, 364 U.S. 942, 81 S.Ct. 460, 5 L.Ed.2d 373 (1961); Estate of Harmon v. Commissioner, 84 T.C. 329, 333 (1985). Accordingly, the tax court properly applied California law in evaluating the nature of the right which passed to the surviving spouse under the will. Mrs. Heim’s right to the estate was contingent upon her survival of distribution of that estate. Under California law, such a limitation creates a terminable interest. Nielson v. United States, 22 A.F.T.R.2d (P-H) 6051, 68-2 U.S. Tax Cas. (CCH) P12,-549 (C.D.Cal.1968). See also Farrell v. United States, 198 F.Supp. 461, 462 (S.D.Cal.1961); Estate of Sbicca, 35 T.C. 96, 102 (1960); In re Estate of Zuber, 146 Cal.App.2d 584, 304 P.2d 247, 254 (Dist.Ct.App.1956); In re Jameson’s Estate, 93 Cal.App.2d 35, 40, 208 P.2d 54, 56-57 (Dist.Ct.App.1949); In re Hampe’s Estate, 85 Cal.App.2d 557, 193 P.2d 133, 135 (Dist.Ct.App.1948). Appellants do not seriously contest that the bequest to Mrs. Heim is marked by all three characteristics of a nondeductible terminable interest. The interest would have terminated had Mrs. Heim died before distribution of the estate; upon that termination, the property would have passed from the decedent to Mrs. Heim’s children; and the children of the surviving spouse would have been entitled to full enjoyment and possession of that property. However, appellants argue that the bequest falls within a limited exception to the nondeductible terminable interest rule, found in section 2056(b)(3). Subsection (b)(3) provides that an interest shall not be deemed terminable if the only condition imposed is that the surviving spouse survive the decedent by six months, and if such surviving spouse does, in fact, survive for that period. If the interest of the surviving spouse falls within this exception, then the estate would be entitled to claim a marital deduction for that interest. On the face of the will, the bequest to Mrs. Heim does not fall within the exception of section 2056(b)(3). The condition imposed upon Mrs. Heim was that she survive distribution of the estate before her interest vested. Section 2056(b)(3) applies only if the survivorship condition imposed does not exceed six months of decedent’s death. When the survivorship condition is viewed at the moment of the decedent’s death, which is the critical time for evaluating the nature of the gift for estate tax purposes, Jackson, 376 U.S. at 508, 84 S.Ct. at 872; Estate of Cunha, 279 F.2d at 297, the condition is one that might cause the gift to terminate after the six month safe harbor of subsection (b)(3). For example, if Mrs. Heim had died seven months after decedent’s death, but before distribution of the estate, her death would have caused decedent’s gift to fail. The survivorship condition imposed by decedent plainly is not one which “can only occur within 6 months following the decedent’s death.” Treas.Reg. § 20.2056(b)-3(b) (1958). Distribution of estates often take longer than six months, and did so in this case. The fact that Mrs. Heim did, in fact, survive distribution is of no account. See Kasper v. Kellar, 217 F.2d 744, 746 (8th Cir.1954). The interest passed does not fall within the exception of section 2056(b)(3). Cf. Estate of Robertson v. United States, 903 F.2d 1034 (5th Cir.1990) (bequest conditioned on survivorship of probate deemed a terminable interest that did not fall within the safe harbor of section 2056(b)(3), since the will could have been admitted to probate more than six months after decedent’s death). Having determined that the decedent created a nondeductible terminable interest by requiring his surviving spouse to survive distribution of the estate, we now consider appellant’s second argument, namely that section 1036 of the California Probate Code operates to save the otherwise nondeductible bequest, and qualifies it for the marital deduction. C. The California Probate Code 1. Does section 1036 of the California Probate Code operate to limit the will’s survivorship provision to one that does not exceed six months, thereby permitting the estate to qualify for a marital deduction? The estate argues that, in the event that the interest passed to the surviving spouse does not on its face qualify for the marital deduction, that California law operates to reform the bequest by limiting the survivorship provision to one that does not exceed six months, thereby bringing the interest within the exception of section 2056(b)(3). Section 1036 of the California Probate Code (hereinafter referred to as “Probate Code”) provides as follows: If a will contains a marital deduction gift, whether outright or in trust and whether or not there is a specific reference to this article, any survivorship requirement expressed in the will in excess of six months shall not apply to the property passing under a marital deduction, but shall be limited to a six-month period beginning with the testator’s death. The estate argues that the purpose of this section is to qualify California wills for the federal marital deduction, by reforming those wills that are not in compliance with I.R.C. section 2056(b)(3). The tax court held, however, that the saving provision of Probate Code section 1036 only applies to wills containing a “marital deduction gift.” Probate Code section 1030(d) defines a “marital deduction gift” as “a gift intended to qualify for the marital deduction.” The tax court found that there was no evidence that the decedent intended the gift to qualify for the marital deduction, and therefore that the saving provision of section 1036 did not apply. In a footnote, the tax court noted that even if the gift passed to the surviving spouse was one intended to qualify for a marital deduction, that Probate Code section 1036 still would not apply since the gift required survivorship for a period that could not be determined from the will, which period may or may not have been in excess of six months. This position is unpersuasive in light of recent amendments to section 21525. Section 21525 of the Probate Code restates former section 1036 without substantive change. Section 21525(a) recently was amended to read as follows, If an instrument that makes a marital deduction gift includes a condition that the transferor’s spouse survive the trans-feror by a period that exceeds or may exceed six months, other than a condition described in subdivision (b), the condition shall be limited to six months as applied to the marital deduction gift. Id. (emphasis in original). The italicized portion was newly added in 1988. Subsection (c) also was added to section 21525 in 1988, and provides: “The amendment of subdivision (a) made by the act that enacted this subdivision is declaratory of, and not a change in, either existing law or former Section 1036.” By these amendments, the California legislature has clarified its intent with respect to the breadth of survivorship conditions to which the statute will apply. In addition, the newly added section 21525(c) specifically states that the fact that a survivorship condition may exceed six months is not fatal to application of section 21525 or former section 1036. We assume that the California Supreme Court would read section 1036 in light of the amendment to section 21525, and would not disqualify a will from application of Probate Code section 1036 merely because the survivorship condition could have been in excess of six months. We note that current section 21525 likely would not be applied to the survivorship condition imposed in decedent’s will, because section 21525 specifically applies only to gifts conditioned upon the surviving spouse’s survival of the deceased. As already discussed at length, the condition imposed by Mr. Heim was that Mrs. Heim survive distribution. However, section 1036, which applies to the distribution in this case, applies to “any survivorship requirement expressed in the will in excess of six months” (emphasis added). Certainly, the requirement that Mrs. Heim survive distribution qualifies as a “survivorship requirement.” Furthermore, because requiring Mrs. Heim to survive distribution is a condition which may have exceeded six months, because of the recent addition of section 21525(c), section 1036 should operate to limit that survivorship requirement to six months. Therefore, the survivorship requirement could be read as one in compliance with I.R.C. section 2056(b)(3). However, we must conclude that Probate Code section 1036 cannot operate to reform the survivorship requirement in decedent’s will, since there is insufficient evidence that decedent intended the gift to qualify for a marital deduction. The estate argues that the tax court imposed an unrealistically strict standard in evaluating the evidence of decedent’s intent by improperly concluding that Probate Code section 1036 only applies to wills that specifically mention the federal marital deduction. The estate asserts that this construction would severely limit the instances where Probate Code section 1036 would apply, and that it is too restrictive to give effect to the intent of the California legislature. The estate contends that most wills specifically mentioning the federal marital deduction will be drafted in such a way so as to comply with the requirements of I.R.C. section 2056. Therefore, there would be no need for the California statute to step in and reform a will that already qualifies for the marital deduction. As framed by the estate, this argument holds some appeal. However, not all wills expressing an intent to qualify for the marital deduction are drafted in a manner consistent with the requirements of I.R.C. section 2056. See, e.g., In re Estate of Rogers, 180 So.2d 167, 169-71 (Fla.Dist.Ct.App.1965); Odom v. Odom, 238 Ga. 733, 235 S.E.2d 29, 31 (1977); Howell v. Gentry, 8 N.C.App. 145, 174 S.E.2d 61, 65-66 (N.C.Ct.App.1970); Estate of Althouse, 404 Pa. 412, 172 A.2d 146, 151-52 (1961). Furthermore, we cannot avoid the statutory directive that a “marital deduction gift” is “a gift that is intended to qualify for the marital deduction,” Probate Code section 1030(d), and that “[w]hether the will contains a marital deduction gift depends upon the intention of the testator at the time the will is executed.” Probate Code section 1032(a). In California, a will must be construed according to the intention of the testator as that intention is expressed in the language of the will. See In re Estate of Dodge, 6 Cal.3d 311, 324, 491 P.2d 385, 394, 98 Cal.Rptr. 801, 810 (1971). Evidence of the circumstances surrounding execution of the will is admissible only to determine whether the will contains any ambiguity. See In re Estate of Russell, 69 Cal.2d 200, 444 P.2d 353, 359, 70 Cal.Rptr. 561, 567 (1968). The tax court determined that the language of the will was not reasonably susceptible to two or more interpretations, and therefore that other extrinsic evidence was not admissible to show Mr. Heim’s intent. The evidence regarding decedent’s intent is devoid of any indication that decedent intended the gift to qualify for the marital deduction. Indeed, the evidence does not give any indication that decedent considered the marital deduction at all. The tax court found that the will does not mention federal estate taxes or the marital deduction. Further, the testimony received at trial concerning the circumstances surrounding execution of the will revealed that neither the surviving spouse nor the attorney who drafted the will discussed the marital deduction with Mr. Heim. In the absence of more concrete evidence that the decedent was aware of the marital deduction, and intended his surviving spouse to benefit thereby, we are unable to find that the gift was “intended to qualify” for the marital deduction. These facts are not clearly erroneous. The estate fervently argues that because the decedent bequeathed “all of [his] estate” to his surviving spouse, that we should infer from this that decedent did not intend his surviving spouse to pay estate taxes. However, were such limited evidence of intent sufficient to support application of Probate Code section 1036, most wills drafted in California would qualify for section 1036, since most decedents could be said to possess a generalized intent to avoid federal estate taxes. However, application of Probate Code section 1036 requires more than a generalized intent to reduce or avoid estate taxes. We conclude that the estate failed to present sufficient evidence of decedent’s intent that the gift to Mrs. Heim qualify for a marital deduction. III. CONCLUSION The estate is not entitled to a marital deduction for the bequest to Mrs. Heim, because the gift is a terminable interest under I.R.C. 2056(b). Further, section 1036 of the California Probate Code does not operate to bring the bequest within the exception of I.R.C. 2056(b)(3), because there is insufficient evidence to support the conclusion that the decedent intended the gift to qualify for the marital deduction. The decision of the tax court is AFFIRMED. . Judge Korner’s decision is reported at 56 T.C.M. (CCH) 146 (1988). . The relevant dispositions of the testator’s estate are contained in the following paragraphs of his will: FIRST: I declare that I am married; that my wife’s name is ISABELLE J. HEIM; that there is no issue of our marriage. I have no other living children, no deceased children, nor issue of deceased children and no adopted children. SECOND: It is my intention hereby to dispose of all property which I am entitled to dispose of by Will. THIRD: I give all of my estate of whatsoever kind and nature and wheresoever situated to my wife, ISABELLE J. HEIM. FOURTH: In the event that my said wife should predecease me or fail to survive distribution, or in the event that our deaths should occur simultaneously or approximately so or in the same common accident or calamity, then I give all of my estate of whatsoever kind and nature and wheresoever situated to my wife’s three children by a prior marriage.... . This was the value of joint tenancy property which passed to the surviving spouse by operation of law. . The amount of the deficiency later was reduced to $41,043, on account of expenses incurred during this litigation. . During its audit, the IRS also reduced the taxable estate by $7,717, after determining that stock valued on the return at $29,854 should be valued at only $22,137. The estate did not appeal that determination. . All references to the Internal Revenue Code (I.R.C.) shall be to the Internal Revenue Code of 1954 (Title 26 United States Code), as amended and in effect during 1981, the year the testator died. The 1954 Code has been redesignated as the "Internal Revenue Code of 1986” by section 2 of the Tax Reform Act of 1986, Pub.L. No. 99-514, 100 Stat. 2085. . Section 2056(a) provides as follows: (a) Allowance of marital deduction. For purposes of the tax imposed by section 2001, the value of the taxable estate shall, except as limited by subsections (b) and (c), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. . As in effect in 1981, section 2056(c)(1)(A) limited the amount of the deduction to the greater of (1) $250,000 or (2) 50 percent of the value of decedent’s adjusted gross estate. . Section 2056(b)(3) provides: (3) Interest of spouse conditional on survival for limited period. For purposes of this subsection, an interest passing to the surviving spouse shall not be considered as an interest which will terminate or fail on the death of such spouse if— (A) such death will cause a termination or failure of such interest only if it occurs within a period not exceeding 6 months after the decedent’s death, or only if it occurs as a result of a common disaster resulting in the death of the decedent and the surviving spouse, or only if it occurs in the case of either such event; and (B) such termination or failure does not in fact occur.
2009391-4314	POWELL, District Judge. This is a review of a decision of the Tax Court of the United States pursuant to 26 U.S.C.A. § 7482. In its decision, 32 T.C. 775, the Tax Court upheld the commissioner’s disallowance of a claimed abandonment loss in the year of 1950. In 1950 petitioner Burke was a resident of North Sacramento, California. He filed his return reporting his income in accordance with the cash receipts and disbursements method. In early 1946 Burke was approached by parties who desired that he invest money in the construction of a luxury hotel at Las Vegas, Nevada. He was requested to advance money to exercise an option and in return receive stock in the Nevada Desert Inn Corporation which had been organized to construct the hotel. The option for the purchase of the real property selected for the hotel site was about to expire. Burke arrang ed to take an assignment of the option, acquired title in March 1946 and agreed to permit the original option holder to repurchase from him within six months. Burke commenced construction of the hotel which proceeded through the spring and summer of 1946. By August the concrete foundations were in as well as some of the wooden framework for the dormitory. A total of $26,422.50 was expended on plans and construction. The original option holder filed suit in Nevada in May 1946 against the petitioner Burke seeking to have the property declared to be held in trust. Petitioner did not stop construction at once. The first case was dismissed in July of 1946 and in August an appeal was filed. Then petitioner suspended construction of the hotel and it was never resumed. The appeal of the first case was dismissed in October, 1947. In the spring of 1950 the taxpayer told his contractor that further construction would have to be abandoned. At that time there was pending in Nevada a suit on the same issues as those involved in the first suit. It was dismissed on November 16, 1950. In April 1949 the minority stockholders of the Nevada Desert Inn Corporation filed suit in California against that corporation and the taxpayer, alleging fraud and mismanagement. While the suit did not attack the title to the Nevada property it demanded damages of $1,000,000. Taxpayer was the only defendant served. This case was pending December 31, 1950. In the fall of 1950 petitioner asked his accountant to gather the data to make claim for a deduction of a casualty loss because of abandonment of the hotel construction project. The total claimed deduction was $29,544.91. Petitioner concedes that $4,330.61 of that sum, which represents attorneys’ fees and costs, is properly a part of the cost of the property and not to be included in the loss item claimed. A recovery for salvage further reduced the claim. The deduction in issue is $25,214.30, which was designated a claimed casualty loss but has been treated throughout the proceedings as a claimed abandonment loss under the appropriate 1939 Internal Revenue Code and regulations. On December 31, 1950, the title to the real property was in the name of petitioner. He claims that the improvements on it were abandoned during that year. In support of that claim he points to the then pending litigation, to his notice to the construction company that the work was abandoned, that he and his attorney had determined not to proceed with the work and that his accountant had made claim for the abandonment loss and conferred with the deputy collector of Internal Revenue to determine the method of making the claim. The question of the year in which an abandonment loss is sustained is to be determined as one of fact. The Tax Court had the entire record and testimony before it and decided there was no abandonment by the taxpayer Burke in the year of 1950. We do not find from the examination of the entire record that determination to be clearly erroneous. “The Tax Court is a trier of fact. * * * Such factual determinations by the Tax Court will not be disturbed on appeal unless they are found to be ‘clearly erroneous.’ ” Spiesman v. Commissioner of Internal Revenue, 9 Cir., 260 F.2d 940, 948. Holtz v. C. I. R., 9 Cir., 256 F. 2d 865, 870; Wener v. C. I. R., 9 Cir., 242 F.2d 938, 946; Rule 52(a) Federal Rules of Civil Procedure, 28 U.S.C.A. The Tax Court in its decision relied on the following cases:
1548228-10665	ALVIN B. RUBIN, Circuit Judge: An airline pilot appeals a Tax Court decision sustaining the assessment of income tax deficiencies against him and his ex-wife. The Tax Court disallowed certain deductions claimed by the taxpayer and his wife for the calendar years 1976 and 1977. Conceding that the Income Tax Regulations have changed with regard to deductability of flight-training expenses, the Commissioner agrees that the Tax Court opinion should be reversed insofar as these expenses were disallowed. We therefore remand for the purpose of recomputation of the amount due by the taxpayer with regard to this item. We find, however, that the Tax Court properly disallowed deductions claimed for farm expenses, miscellaneous expenses, and losses. We also find that the additions to tax assessed for underpayment due to negligence or intentional disregard of the Internal Revenue rules and regulations were correctly sustained. Accordingly, we affirm in part, reverse as to disallowance of the flight-training expenses, and remand for entry of a revised judgment. I. During 1976 and 1977, Kenneth J. Masat was employed as a pilot by Continental Airlines. In 1976 he attended a flight-training course. He incurred total expenses amounting to $7,019.00 for the course and related travel expenses, and received reimbursement in the amount of $5,468.85 from the Veterans Administration. On the joint income tax return filed by Masat and his former wife, all' the expenses relating to the flight-training course were deducted, and the amount received as reimbursement from the Veterans Administration was not reported. It is unnecessary for us to trace the history of the Commissioner’s policy with regard to the deductability of flight-training expenses that have been reimbursed by the Veterans Administration. In Baker v. U.S., the Eleventh Circuit held that there was no rational basis for treating veterans who receive flight-training benefits differently from those who engage in other educational programs. Consequently, the court allowed the deduction for the flight-training expenses claimed without regard to whether the Veterans Administration had reimbursed the taxpayer for those expenses. The Government decided not to seek certiorari in Baker and the Commissioner has determined that the deductibility of these reimbursed expenses for years before 1983 will no longer be challenged. Because the Commissioner concedes that the full amount of the flight-training expenses incurred by Masat in 1976 is deductible, the case must be remanded to the Tax Court for the purpose of recomputing the 1976 tax. II.' During 1976 and 1977, Masat and his wife owned a 150 acre farm in Brunswick, Nebraska, which taxpayer’s brother farmed under a sharecropper arrangement. Masat claimed various expenses in connection with the farm on Schedule F of his income tax returns for those years. These included deductions for interest, feed, legal fees, travel, and land clearing. The Commissioner disallowed the deductions claimed for both years. Section 262 of the Internal Revenue Code provides, as a general rule, that no deductions shall be allowed for any personal, living or family expense. The cost of traveling, including food and lodging, is normally considered a nondeductible personal expense. Section 162(a)(2) of the Code, however, allows a deduction for travel expenses, including amounts expended for meals and lodging, incurred by the taxpayer while away from home in pursuit of a trade or business. If a trip is conducted for both business and personal reasons, the traveling expenses can be deducted only when the primary purpose of the trip is for business. Travel expenses are not deduetible unless substantiated in accordance with the requirements of section 274 of the Internal Revenue Code. The taxpayer bears the burden of proving both that he incurred travel expenses and that these expenses were business related. The Tax Court is the primary judge of the facts, and we cannot reverse its decisions unless we are satisfied that, on the record, its findings of fact were clearly erroneous. Masat claimed expenses for travel to Nebraska for both years. He is originally from Nebraska and, in both years, had relatives, including his mother and brother, living there. Part of his claimed travel expenses for both years was for meals and lodging. At trial, taxpayer testified that when he was in Nebraska he stayed with relatives and ate his meals in their homes. He submitted two cancelled checks written in 1976 to airlines bearing the notation “To Neb.” He offered no substantiation of expenses claimed in 1977. Based on the record, the Tax Court found that Masat failed to prove that personal reasons were not the primary motivation for his trips to Nebraska in 1976, and that, with respect to his claim for deduction of travel expenses in 1977, he failed to present any supporting evidence whatsoever. His testimony concerning these expenses, the court said, was “neither credible nor plausible.” The record contains substantial evidence to support the Tax Court’s determination. Masat had purchased the Nebraska farm from Hazel Bruce Rehberg. On his 1976 return, he deducted $3,000.00 as interest expense, indicating that this was a payment to the Rehbergs and that they had agreed that it would be entirely allotted to interest. The Tax Court held that, on the record, the taxpayer failed to show that the $3,000.00 was deductible as interest and characterized taxpayer’s testimony on the issue as “simply not believable.” Accordingly, the court denied the deduction for interest. Again, we find no reason to revise the Tax Court’s assessment of the evidence presented. For the 1977 tax year, Masat also claimed certain legal and miscellaneous expenses, but the Tax Court found that his testimony and the evidence submitted concerning legal and miscellaneous expenses constituted a “meager” record and that Masat’s testimony and arguments were vague and conclusory. It held, therefore, that Masat failed to sustain his burden of proof. It is clear that the Tax Court simply did not credit Masat’s testimony and we find no reason to substitute our judgment for its findings of fact. III. Masat contended he lost $1,000.00 as a result of a transaction with First Kensington Corporation. The Tax Court concluded that Masat failed to establish that he sustained a loss in 1976. As a prerequisite to allowance of a loss deduction, a taxpayer must establish each of the elements required by law. His failure to do so results in denial of his claim. The Tax Court found that the evidence provided in connection with the claimed loss was insufficient and Masat has failed to show that finding to be clearly erroneous. Masat contends that, if the deduction for the loss is not allowed for 1976, it should be allowed for 1977. However, he has never asserted, either on his 1977 return or to the Tax Court, that the loss was incurred in 1977. The record is devoid of proof to support his present assertion and we need not, as an appellate court, consider a theory of recovery not presented below. Masat also contends he sustained a loss in connection with American Buying Service, a franchise distributorship. He testified that this firm went bankrupt and his investment was lost, but he gives no indication of the grounds for treating the investment as worthless or for claiming the loss in the years he did. Neither the exact nature nor the precise amount of his investment is clear. The Tax Court found that Masat had failed to establish that he actually sustained any loss in 1976 and 1977 in connection with the American Buying Service investment, and its findings on this, as on all other facts, must be credited unless clearly erroneous. IY. Masat urges that we should consider as “newly discovered evidence,” facts that, he asserts, he did not have an opportunity to submit to the Tax Court. The exhibits he proffers to us to support his claims are not sufficient to make the findings clearly erroneous or to warrant remand to the Tax Court. V. Section 6653(a) of the Internal Revenue Code authorizes a five percent addition to tax if any part of an underpayment is due to negligence or intentional disregard of rules or regulations. If the Commissioner assesses such an addition, the taxpayer bears the burden of proving that he is not liable for it. The Tax Court found that Masat failed to carry his burden of proof on this issue because he submitted no evidence to prove that the underpayments were not due to negligence or intentional disregard of the rules or regulations. It noted that the record is “replete with instances in which Masat claimed deductions to which he clearly was not entitled and that he “displays a strong propensity for claiming deductions without any effort to determine whether there were any grounds for such claims.” Masat contends that he was prevented from arguing the question of negligence by the Tax Court, but the record does not support the charge. He also contends that he relied in good faith on his interpretation of the Internal Revenue Code and the advice of his lawyer, Gordon Tyner. The law with regard to the items in dispute is not unsettled and there is no evidence that Masat disclosed all necessary information to a tax return preparer or that Masat actually relied on the advice of a professional. The Tax Court’s determination that Masat failed to carry the burden of proof on this issue is a finding of fact and is not, in our opinion, clearly erroneous. VI. Masat also contends he was entitled to a jury trial. The law grants no right to a jury trial in the Tax Court, and, because that court is not a court having general jurisdiction under the Constitution, there is no constitutional right to a jury trial. Masat further alleges that there were procedural irregularities in his trial, such as the fact that Darrell Dillard, a former IRS agent who testified on behalf of the IRS and was seated at counsel’s table, “was coaching IRS Counsel in his questioning.” Use by either party of an expert witness to advise that party in the conduct of trial is permissible. For these reasons, the judgment is affirmed in all respects, save the disallowance of the expenses claimed for flight-training. The judgment for tax deficiencies for 1977 is affirmed. The case is remanded for redetermination of the deficiency for 1976. . 748 F.2d 1465, 1468-70 (11th Cir.1984). . Becker v. Commissioner, 751 F.2d 146, 151-52 (3rd Cir.1984). . 26 U.S.C. § 262. . 26 C.F.R. § 1.262-l(b)(5). . 26 U.S.C. § 162(a)(2). . See 26 C.F.R. § 1.162-2(b)(l). . 26 U.S.C. § 274(d); see also 26 C.F.R. §§ 1.274-5(b)(2) & -5(c).
12136295-13549	MEMORANDUM OPINION BLACKWELL N. SHELLEY, Bankruptcy Judge. This matter comes before the Court on the complaint filed by Denise C. Jones (the “Plaintiff’) in the above named Adversary-Proceeding. In the complaint, the Plaintiff asks that the Court declare her otherwise non-dischargeable student loan debt to be dischargeable because of the undue hardship which would be placed on her due to the repayment of the debt. The Plaintiff bases the hardship on the apparently incurable medical conditions known as Chronic Fatigue Syndrome and Fibro-myalgia from which, she allegedly suffers. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I); venue is proper under 28 U.S.C. § 1409. Upon consideration of the parties’ pleadings, and after a trial held on this matter on September 17, 1998, the Court makes the following findings of fact and conclusions of law. FINDINGS OF FACT The Plaintiff filed a Chapter 7 petition with this Court on July 30, 1997; she received a discharge of her debts on November 7, 1997, and the case was closed on December 9, 1997. On October 27, 1997, the Plaintiff filed a complaint with this Court, asking the Court to include her student debt in the debts to be discharged. The complaint was filed against and properly served on the National Payment Center, Signet Bank, and all other student loan companies concerned (the “Defendants”). In the complaint, which included numerous medical records, the Plaintiff stated that she had watched herself go from a perky, ambitious woman to a very fatigued and depressed individual because of two conditions: Fibromyalgia and Chronic Fatigue Syndrome. Because of these conditions, which the Plaintiff claimed to be nontreatable and incurable, the Plaintiff stated that she had lost many jobs, had to quit school, and cannot hold down a full-time job. The Plaintiff asked the Court to discharge her student loan debt because of the undue hardship associated with the repayment of this debt. The Defendants timely answered the complaint and stated that the Plaintiff had failed to state a claim for which relief can be granted. A pretrial order governing discovery and other matters was entered by the Court on February 26,1998. The Plaintiff was generally unwilling to comply with Defendants’ discovery requests, and when she did respond was not very forthcoming with information. On March 17, 1998, Defendants served the Plaintiff with interrogatories and requests for admission; the Plaintiff waited several months to respond, and when she did finally respond, the information she provided was not very helpful. She answered “information unavailable at this time” to several of the interrogatories and provided the following response to Defendants’ requests for admission: “Unable to answer Requests for Admissions at this time.” On May 12, 1998, the Defendants filed a Motion for Sanctions against the Plaintiff for her untimely and incomplete responses to discovery. The Court has not ruled on this Motion, in part because the Defendants have not requested a hearing on the Motion nor have they taken any action on the Motion since it was filed. The following information did come out of Plaintiffs responses: she is employed part-time, she suffers from Chronic Fatigue Syndrome, which may be permanent, she is taking Prozac and Trazadone as well as vitamins and herbs, she is under a doctor’s care, she has no insurance, she lives with her parents, and she is unable to hold down a full-time job. The Court was not provided with much information or details about the student loans obtained by the Plaintiff. It appears that three separate student loans were obtained: one in July of 1992, one in August of 1993, and one in July of 1994. Defendants’ counsel stated during the trial that the amount due on the loans is approximately $16,000.00. During the trial, the Court learned the following information from the Plaintiffs testimony. Currently, the Plaintiff is employed on a part-time basis by the American Family Fitness Center; she works 20-25 hours per week, earns $7.00 per hour, and has worked there for over a year. The Plaintiff is currently living at home, has no car, has no health insurance, and has not applied for nor received any type of public assistance. The Plaintiff pays no rent; her monthly expenses include helping her parents pay for some of the home-related bills, medical expenses for her treatment, and personal items including clothing and toiletries. The Plaintiff stated that she has lost every job and had to quit school at Virginia Commonwealth University (where she. was on the Dean’s List) because of her illness. Her medical conditions have not improved over time and have completely taken over her life, and because she is unable to work full-time, Plaintiff claims she is unable now to pay off the student debt. Plaintiff did state that she is attending support groups and staying under a doctor’s care, and that maybe in the future, if her conditions improve, she will be able to go back to school, obtain a degree, get back on her own two feet, and pay her bills. Following the trial, during which the Court received the Defendants’ trial brief, the Court took the matter under advisement. CONCLUSIONS OF LAW I. Relevant Bankruptcy Code Provision A. Seven-Year Period The relevant Bankruptcy Code (the “Code”) section is 523(a)(8). This section provides as follows: A discharge under section 727 ... of this title does not discharge an individual debtor from any debt—(8) for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless—(A) such loan, benefit, scholarship, or stipend overpayment first became due more than 7 years (exclusive of any applicable suspension of the repayment period) before the date of the filing of the petition; or (B) excepting such debt from discharge . under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents. There is no issue as to the seven-year period in this case. This Court has stated that it was the clear intent of Congress to allow debtors to discharge student loans in cases in which more than five years (the law is now seven years) have elapsed since the notes executed on behalf of those loans first became due. See In re Ziglar, 19 B.R. 298, 300 (Bankr.E.D.Va.1982). The record indicates that the three loans were applied for on July 27, 1992, August 4, 1993, and July 31, 1994. The petition for bankruptcy was filed on July 30, 1997. Because all three loans obviously first became due after the dates on which they were applied for, and because these due dates are not more than seven years before the petition date, the loans in issue here are not excepted from discharge under subsection (A) of § 523(a)(8). B. Undue Hardship The Plaintiff claims that she is entitled to a discharge of her student debt because of the undue hardship associated with her medical conditions and her inability to repay the debt. Many courts, including this one, have examined the issue of undue hardship and have come up with various factors and tests. Although there is no definitive test to determine whether repayment of a student loan will impose such hardship on the debtor, thereby permitting a discharge, this Court, in In re Wilson, 177 B.R. 246 (Bankr.E.D.Va.1994), stated that nine relevant factors must be considered. Other courts, including the Western District of Virginia, have adopted a three-part test which was set out by the Second Circuit in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2nd Cir.1987). The three factors in the Brunner test, minimal standard of living, additional circumstances such as medical condition, and good faith, are all considered below. Generally speaking, the legislative history of the provision suggests that a finding of undue hardship is an exception to the rule; it must mean more than unpleasantness associated with repayment of a just debt. Each undue hardship discharge must rest on its own facts, but dischargeability of student loans should be based upon a “certainty of hopelessness.” In re Lezer, 21 B.R. 783 (Bankr.N.D.N.Y. 1982). Further, in order for the debtor to obtain a hardship discharge, he or she must show that the unique or extraordinary circumstances which created the hardship render it unlikely that the debtor will ever be able to honor her obligation. See In re Love, 33 B.R. 753 (Bankr.E.D.Va.1983). Undue hardship is generally associated with a total incapacity at the time of the filing of the petition and in the future to pay one’s debts for reasons not within the control of the individual debtor. See In re Rappoport, 16 B.R. 615 (Bankr.D.N.J.1981). What follows is an examination of the Plaintiffs situation with respect to the nine factors propounded in the Wilson case: (A)Employment status. . Plaintiff is currently employed part-time by American Family Fitness Center; she works 20-25 hours per week, makes $7.00 per hour, and has worked in this capacity for over a year. No details were provided as to Plaintiffs specific job duties. (B) Other sources of wealth. In her responses to interrogatories, Plaintiff states that she received unemployment benefits from February of 1997 to July of 1997, but provides no amounts. It appears that the Plaintiff has not sought out public assistance which indeed may be available to her. (C) Current income required to maintain a minimal living standard. No evidence was offered as to this amount. (D) Whether education and skills are being used to their best advantage. No evidence was offered as to this issue. (E) Health of debtor and any dependents. As provided above, Plaintiff states that she suffers from Fibromyalgia and Chronic Fatigue Syndrome, which may be permanent and which appear to have no treatment or cure. Because of her medical conditions, Plaintiff stated that she had to quit school, has lost many jobs, and is now only able to work part-time. (F) Living expenses. Plaintiff has minimal expenses as she is living with her parents and pays no rent. Her expenses include her medical bills, groceries, a portion of the utilities, clothing, and personal items. The Plaintiff did not provide the Court with much detail as to these expenses or amounts. (G) Future financial resources. Other than current employment, Plaintiff offered no evidence of any. (H) Good faith of the debtor. There is no evidence of any bad faith on the part of the Plaintiff here. (I) Whether the bankruptcy was filed merely to avoid the student loan obligation. The purpose of Congress in providing the seven-year period was to prevent student borrowers from escaping repayment of their loans by filing for bankruptcy after the loans became due. See In re Gibson, 184 B.R. 716 (E.D.Va.1995). No evidence was presented on whether Plaintiff filed to avoid repayment of the student debt. As stated above, in order for the Plaintiff to obtain a hardship discharge, it is the Plaintiffs burden to show that the unique or extraordinary circumstances which created the hardship render it unlikely that the debtor will ever be able to honor her obligation; in other words, there must be a certainty of hopelessness as to the repayment of the debt. It is the Court’s opinion that the Plaintiff has not carried her burden and has not established grounds for a complete discharge of her student debt. The Plaintiff is currently employed and is making money and has been working for over a year; Plaintiff herself even stated that her situation may well improve over time so that she will be able to work full-time and pay off the debt. Plaintiffs symptoms may be diminishing as they did not preclude her from defending herself in this action, testifying under direct and cross examination, and making arguments. In addition, Plaintiff has not sought any public assistance which may be available to her and which may aid her in the repayment of her obligations. Thus, Plaintiff has not proven to the Court that her student debt should be dischargeable, and has not persuaded the Court that she cannot reasonably be expected to make any repayments on her outstanding loans now and in the foreseeable future. As provided below, however, the Court does find that due to her medical condition, part of her debt is dischargeable. II. Discharge of Portion of Student Loan Debt A. Bankruptcy Court’s Authority to “Split” the Debt Several courts have addressed the issue of whether discharge under § 523(a)(8)(B) is an all or nothing proposition. Some courts have held that the total educational debt is either dischargeable or non-dischargeable. See In re Shankwiler, 208 B.R. 701 (Bankr.C.D.Cal.1997); In re Hinkle, 200 B.R. 690 (Bankr.W.D.Wash.1996). Other courts have recognized a Bankruptcy Court’s equitable power to discharge a portion of the debt, while leaving the remaining amount non-dischargeable. See Matter of Rivers, 213 B.R. 616 (Bankr.S.D.Ga.1997); In re Cheesman, 25 F.3d 356 (6th Cir.1994); In re Ammirati, 187 B.R. 902 (D.S.C.1995). The Court agrees with the latter cases which recognize a Bankruptcy Court’s ability to order a partial discharge of a student loan under certain circumstances. The partial discharge-ability or other modification of a student loan debt accomplishes Congress’ purpose of providing debtors with a “fresh start” while maximizing the repayment of the debt.
1161639-17940	VAN GRAAFEILAND, Circuit Judge: On this appeal, we are confronted once again with a case in which every issue has been tried except that of guilt. On December 17, 1979, appellants were indicted for narcotics violations in the United States District Court for the District of Vermont. During the ensuing ten months, appellants presented Chief Judge Holden of the District Court of Vermont with more than eighty pre-trial motions. These were followed by a fourteen day hearing on appellants’ combined motions to suppress. When these motions were denied in substantial part, see United States v. Lace, 502 F.Supp. 1021 (D.Vt.1980), each defendant pleaded guilty to one count of the indictment, reserving, pursuant to stipulation, his or her right to appeal the district court’s suppression rulings. Appellants have now filed over 200 pages of briefs in our Court in which the word “innocent” is conspicuous only by its absence. Appellants’ sole arguments for reversal are that the Government, in a variety of ways, violated their constitutional rights. Finding no merit in these arguments, we affirm the judgments of conviction. Although we can add but little to Chief Judge Holden’s thorough and scholarly opinion, some discussion may be appropriate in several areas where appel lants strongly contend that error has occurred. On May 15, 1979, Judge Charles Bristaw of the Vermont District Court issued a warrant authorizing a search for drugs in a house, a garage and a barn on Beaver Brook Road in the Town of Sharon, Vermont. The search authorized by this warrant uncovered, among other incriminating evidence, approximately 457 pounds of hashish and 100 pounds of marijuana. Because this evidence is the bedrock upon which the Government rests its case, appellants’ attack has been centered mainly on the legality of the search. The affidavits upon which the warrant was based were executed by two members of the Vermont State Police, Corporal Val-lie and Trooper Holton. Corporal Vallie, a member of Vermont’s Special Investigation Unit, with specialized training and education in the narcotics field, swore that the Special Investigation Unit had received information concerning a major drug distribution organization. This information led them to appellant Lace, the proprietor of a restaurant in Jamaica, Vermont, known as the Bailey-Rawston House. There, the troopers became acquainted with both Lace and appellant Ducharme. On one of Vallie’s visits to the Bailey-Rawston House, he was accompanied by a confidential informant who introduced him to David Southam. The informant told Vallie that Southam was Lace’s right-hand man, and the informant believed Lace and Southam to be the suppliers of cocaine to a previously convicted buyer named Steele. On April 23, 1978, Lace, injured in an automobile accident, was found to have $6,000 in cash on his person, which he stated was the day’s proceeds from his restaurant. At that time, however, the restaurant was closed for the season. Hospital personnel also heard Lace telephone a friend and instruct him to look under the car seat for additional money. In March, 1979, Vallie received additional information from another unidentified informant. Vallie stated that the informant’s information was reliable because it was self-incriminating and much of it had been substantiated by independent investigation. It was this informant’s disclosures that led the police to appellants’ drug “warehouse” on Beaver Brook Road. The informant told Vallie that he had been doing business with Lace and Ducharme since 1975, and that they appeared to have an equal interest in the drug business. The informant coz-rectly described and located a house owned by Ducharme in Quechee, Vermont. The informant stated that Lace and Du-charme had handled over 30,000 pounds of marijuana during 1975-76, and that during the ensuing four years they used various “stash houses” to warehouse the drugs. He described the location of the stash house then being used and stated that within the preceding three months he had purchased 500 pounds of marijuana at that location. The stash house thus described was the Beaver Brook Road property covered by the subsequently issued search warrant. The informant said that the stash house was run by Ducharme’s cousin whose first name was “Gary” and who drove a dark color Ford pick-up truck with a cap. The informant stated that the narcotics group used several pick-up trucks with caps to deliver marijuana, which was normally packaged in fifty pound bales, and that each truck would carry about 1,000 pounds; that during 1978, the group purchased, warehoused, and distributed about 30,000 pounds of marijuana. The informant was told by Ducharme on February 29, 1979, that the group was trafficking heavily in cocaine on a year-round basis and that marijuana shipments for the 1979 season would begin in April. The informant told Vallie that the Du-charme-Lace organization had “personally sold him multiple pounds of marijuana” since 1975; that the group was operating a multiple pound cocaine distribution scheme on a year-round basis, while the marijuana operation went from April through the summer. He provided Vallie with the telephone numbers and location of the 1979 warehouse on Beaver Brook Road. This information, standing alone, provided sufficient probable cause to justify a court-authorized search of the Beaver Brook Road buildings. Mapp v. Warden, New York State Correctional Institution for Women, 531 F.2d 1167, 1171-72 (2d Cir. 1976). “Although the informant did not have a previous track record of reliability, this is not the only means whereby an informant’s trustworthiness can be established.” Id. at 1171. The fact that the informant, himself, was a confessed participant in the criminal activities taking place on Beaver Brook Road was, by itself, sufficient to establish the trustworthiness of his disclosures. United States v. Dunloy, 584 F.2d 6, 10 (2d Cir. 1978); United States v. Rueda, 549 F.2d 865, 869 (2d Cir. 1977); United States v. Burke, 517 F.2d 377, 380 (2d Cir. 1975); United States v. Miley, 513 F.2d 1191, 1204 (2d Cir.), cert. denied, 423 U.S. 842, 96 S.Ct. 74, 46 L.Ed.2d 62 (1975). However, the Vermont police did not rest on this evidence alone; they gave Judge Bristaw additional facts to corroborate the informant’s story. Vallie’s affidavit states that during several random surveillances he and Trooper Holton saw a dark blue pick-up truck with a white cap at the Beaver Brook Road premises. The truck was owned by appellant Butts, whose first name is “Gary”. On several occasions, vehicles owned by Lace, Ducharme and Southam were also seen at that address. Appellant Butts’ truck was also seen at Ducharme’s residence in Quechee, as was that of a known drug peddler. This combination of corroborating evidence and the informant’s admitted participation in appellants’ criminal activities was sufficient to satisfy a prudent judge such as Judge Bristaw that the informant’s story was credible and that there was probable cause for a search warrant to be issued. Mapp v. Warden, supra, 531 F.2d at 1171; United States v. Sultan, 463 F.2d 1066, 1068-69 (2d Cir. 1972). This being so, appellants’ argument that the affidavits submitted to Judge Bristaw referred to other evidence allegedly obtained in violation of appellants’ constitutional rights is of little consequence. The ultimate inquiry on a motion to suppress evidence seized pursuant to a warrant is not whether the underlying affidavit contained allegations based on illegally obtained evidence, but whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause. United States v. Giordano, 416 U.S. 505, 555, 94 S.Ct. 1820, 1845, 40 L.Ed.2d 341 (1974) (Powell, J. concurring and dissenting). Justice Powell has summarized in the above quote what has been the established law of this Circuit for many years. See, e.g., United States v. Vasquez, 634 F.2d 41, 44-45 (2d Cir. 1980); United States v. Jackstadt, 617 F.2d 12, 14 (2d Cir.), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980); United States v. Marchand, 564 F.2d 983, 991-94 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978); Parts Mfg. Corp. v. Lynch, 129 F.2d 841 (2d Cir.), cert. denied, 317 U.S. 674, 63 S.Ct. 79, 87 L.Ed. 541 (1942). Other Circuits are in accord. See United States v. Williams, 633 F.2d 742, 745 (8th Cir. 1980). Examining the evidence of surveillance referred to in the troopers’ affidavits and explored at length during the suppression hearings, we agree with the holdings of Chief Judge Holden concerning its admissibility on the trial. Judge Holden found that the Beaver Brook Road property consisted of the house, barn, and garage, and approximately 70 acres of land. It was owned jointly by two couples named Heine and Berkman. They rented the house and garage to Butts for his exclusive use for one year beginning September, 1978, with the understanding, however, that Butts would share the use of the remaining property with the owners. The owners could use the remainder of the property for recreation as they desired, and permission for such use had also been given to the neighbors. The property was not posted and was used freely by hunters. “Outsiders could enter the open property at will.” 502 F.Supp. at 1038. Although the yard, the garage, the barn, and much of the house were visible from the public highway, a good deal of the police surveillance which occurred after April 24, 1979, took place on the property itself. On occasion, binoculars and a spotting scope were used. Other more sophisticated optical instruments were also tried but with little success. Appellants contend that all observations made during such surveillance violated their constitutional right of privacy and must be suppressed. The district court agreed that, while appellants were inside the house, they had a legitimate expectation of privacy from telescopic observation. See United States v. Taborda, 635 F.2d 131, 136-38 (2d Cir. 1980). However, because the area between the house, the garage, and the barn was clearly visible from the road and could easily be observed by outsiders who “could enter the open property at will”, the district court held that none of the appellants had a legitimate expectation of privacy while in that open area. We agree. In Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924), Justice Holmes enunciated for the Court what has since become to be known as the “open fields” doctrine. There, two revenue officers were approaching a farmhouse in which the defendant lived, when they saw another person drive near the house. The officers concealed themselves from 50 to 100 yards away and saw the defendant come out of the house and hand the arrival a bottle which contained moonshine whiskey. The Court held that, even if the revenue officers were trespassers, there was no illegal search or seizure, stating that “the special prohibition accorded by the Fourth Amendment ... is not extended to the open fields.” Id. at 59, 44 S.Ct. at 446. Although the emphasis on Fourth Amendment protections has shifted from places to people, Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), the “open fields” doctrine continues to receive judicial recognition. This is because people generally do not have a legitimate expectation of privacy in open and accessible areas that the public is prepared to recognize as reasonable. United States v. Freie, 545 F.2d 1217, 1223 (9th Cir.), cert. denied, 430 U.S. 966, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1976). Thus, in Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), the Court held that a state health inspector’s warrantless entry onto defendant’s outdoor premises to make an opacity test of smoke coming from the defendant’s chimneys was not an unreasonable search. Justice Douglas, speaking for the Court said that the inspector was “well within the ‘open fields’ exception to the Fourth Amendment approved in Hester." Id. at 865, 94 S.Ct. at 2115. In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), the defendant, when first observed by the police, was standing in the doorway of a house. The police arrested her in the vestibule, to which she had retreated. The Court, distinguishing between private property under the common law and public places under the Fourth Amendment, held, citing Hester, that, when first seen, the defendant was “as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.” Id. at 42, 96 S.Ct. at 2409. Chief Judge Holden’s factual findings that outsiders could enter the Heine and Berkman property at will and that the area between the house and barn was readily observable from the highway were not clearly erroneous and must therefore be accepted by this Court. What was observ able by the general public was observable without a warrant by the police as well. Marshall v. Barlows, Inc., 436 U.S. 307, 315, 98 S.Ct. 1816, 1821, 56 L.Ed.2d 305 (1978); see United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973), (citing United States v. Doe, 457 F.2d 895, 898-99 (2d Cir. 1972), cert. denied, 410 U.S. 941, 93 S.Ct. 1376, 35 L.Ed.2d 608 (1973)); United States v. Miller, 589 F.2d 1117, 1133-34 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979); United States v. Knight, 451 F.2d 275, 278 (5th Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1171, 31 L.Ed.2d 240 (1972). Among the lower court decisions adopting the Hester-Katz rationale, the following are illustrative: United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981). View from roadway of illegal aliens working in delivery area of defendant’s fenced scrap metal yard. Patterson v. National Transportation Safety Board, 638 F.2d 144 (10th Cir. 1980). Examination of exterior of plane parked at private airport. United States v. Magana, 512 F.2d 1169 (9th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975). View of defendant in front of garage from police car driven into private residential driveway. United States v. Hensel, 509 F.Supp. 1376 (D.Me.1981). Surveillance of outdoor premises with a telescope, a spotting scope, binoculars, and a nightscope, plus aerial surveillance and physical entry onto driveway. See also United States v. Arboleda, 633 F.2d 985, 991-92 (2d Cir. 1980); United States v. Mullinex, 508 F.Supp. 512 (E.D.Ky.1980); United States v. DeBacker, 493 F.Supp. 1078 (W.D.Mich.1980). Although some of the observations of the outdoor area were made with binoculars or other visual aids, this did not make such observations unlawful. United States v. Allen, 633 F.2d 1282, 1290-91 (9th Cir. 1980); United States v. Minton, 488 F.2d 37 (4th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287 (1974). In United States v. Taborda, supra, 635 F.2d 131, we held that the Fourth Amendment proscribed the use of a telescope by a policeman only so far as it enhanced his view into the interior of a home. Id. at 139. Its use is not proscribed in places where the defendant otherwise has exposed himself to public view. United States v. Allen, supra, 633 F.2d at 1289; United States v. Hensel, supra, 509 F.Supp. at 1384 n.9; United States v. Bifield, 498 F.Supp. 497, 506-08 (D.Conn.1980). Judge Newman’s reference to nude sunbathers is a felicitous one because it brings the issue of reasonable expectations of privacy into sharp focus. If one were asked whether a person, strolling stark naked around an open yard such as the one on Beaver Brook Road, reasonably could expect to do so in privacy, we suggest that the answer would have to be “No”. If this is so, there is no reason why the judiciary should clothe similarly located drug traffickers in cloaks of invisibility. The only other issue meriting comment involves the search of appellant Lace’s automobile. The search warrant for the Beaver Brook Road premises was executed during the evening of May 16, 1980. While the search was in process, Lace arrived in his car with Ducharme as a passenger. Both were promptly arrested. Lace was given his Miranda warnings but made no request for an attorney at that time. Sometime after midnight, both Lace and his automobile were taken to the Bethel Police Barracks. Around 4:00 a. m., the police asked Lace if he would permit them to search his car. The district court’s findings relative to this conversation were as follows: Corporal LeClair referred to the lateness of the hour and pointed out that Lace’s consent to a search would save a lot of time that would be required to obtain a search warrant. Lace replied he would be willing to permit a search on one condition — to the effect that whatever was found in the search of the vehicle, he (Lace) didn’t know anything about. Lace then executed a written consent which is set forth at full in the margin. In the search that followed, the police found and seized $185,000. Lace’s contention that his consent was not voluntarily given was rejected by the district court, a factual finding which should not be overturned unless clearly erroneous. United States v. Price, 599 F.2d 494, 503-04 (2d Cir. 1979). The district court found Lace to be a “mature”, “well informed”, “enlightened” person with four years of college education, who was not under duress during his detention and who “conveyed the impression of being self-possessed and self-confident despite his predicament.” The district court also found no persuasive evidence of police overbearing, deprivation of physical needs, or deception. Having seen and heard the witnesses, the district court was in a far better position to make these findings than is this Court.
8477150-19265	NEVILLE, District Judge. Plaintiff was a teacher employed by defendant School Board on probationary status, i. e., one employed for a period of less than three years. On February 16, 1973, she was given the required written notice that she would not be rehired for the next school year, which notice, by the literal terms of Minn.Stat. § 125.17, effectively terminated her employment as of the end of the then-current school year. Minn.Stat. § 125.17 provides in relevant part: Subd. 2. All teachers in the public schools in cities of the first class during the first three years of consecutive employment shall be deemed to be in a probationary period of employment during which period any annual contract with any teacher may, or may not, be renewed as the school board shall see fit. . Subd. 3. Any probationary teacher shall be deemed to have been re-employed for the ensuing school year, unless the school board in charge of such school shall give such teacher notice in writing before April 1 of the termination of such employment. In event of such notice the employment shall terminate at the close of the school sessions of the current school year. No direct attack is made here on the constitutionality of the above statute nor of the validity of a three year probationary period during which discharge can be effected without cause; rather the claim is that under the particular facts of this case, plaintiff was constitutionally entitled to a due process hearing before a refusal to renew her employment because by the evidence contained in the written documentation, defendants have caused plaintiff’s case to fall within the ambit of two United States Supreme Court cases, Board of Regents of State Colleges v. Roth, 408 U. S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and its companion case of Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). So far as the statute itself reads, defendants had no obligation during the probationary period to give plaintiff any notice except one of non-renewal before April 1st, nor to state any reasons for non-continued employment, nor to write any letter justifying or attempting to justify its action; nor does the statute require that it establish or make a showing of cause. Employment during the probationary period “may or may not be renewed as the school board shall see fit.” This does not appear to require valid reasons, nor a statement thereof, but leaves the matter entirely in the discretion of the board, a fact known to the probationary teacher when she accepts employment originally. The Board’s action, so far as the statute reads, may be arbitrary without requiring any real cause unless and until the teacher has passed the probationary period. This may indeed seem harsh, but it is the statutory language and if unjust should be amended by the legislature. The only question really argued by defense counsel in this case then is whether the Board, by writing plaintiff a letter assigning reasons and by revealing teacher classroom progress reports — alleged by the plaintiff to be in part false and fabricated- — -went so far as unwittingly to bring itself and the case within one of the exceptions or principles spoken of in Roth or some other rule or exception which should be included with those named. If so, and so that plaintiff may “clear her name” if she is able so to do, then it should be required to hold a hearing with the burden of proof on plaintiff- and establish the truth or falsity of the facts alleged; otherwise not. Plaintiff requested a hearing of her case and a written statement of the reasons for the refusal to rehire her. The defendant district provided the requested written statement, but declined to hold a hearing on the grounds that such was not required by Minnesota statute. Plaintiff subsequently brought action in this court, asserting jurisdiction under 28 U.S.C. § 1343 and seeking damages and injunctive relief pursuant to 42 U.S. C. § 1983, alleging that the school district’s failure to grant her a hearing constituted a deprivation of liberty and property without due process, in violation of her rights under the Fifth and Fourteenth Amendments. This precipitated the present dismissal motion by defendants. The court is of the opinion, and the parties are in agreement, that the basic principles governing here are established by the Supreme Court in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and its companion case, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Roth, when analyzed, in reality set out four situations in which a nontenured teacher is entitled to a hearing on the issue of contract renewal: 1. Where the contract nonrenewal is related to the teacher’s exercise of freedom of speech under the First Amendment. 2. Where the teacher is confronted with a charge that might seriously damage his or her standing and associations in the community. 3. Where the failure to re-employ the teacher imposes a stigma or other disability on him or her which forecloses future freedom to take advantage of other employment opportunities. 4. Where the teacher, by virtue of existing state policies, the contract terms, or similar understandings, has a reasonable expectancy of reemployment. 5. The court is of the belief that to the above four situations or rules should be added a fifth, namely where the adverse reports on which- action is taken are prepared by the school’s superiors or plaintiff’s compatriots and are fabricated, without any foundation or basis in fact whatsoever or. are maliciously designed so as to use the freedom of the probationary period for reasons of personal calumny, hatred, vindication or dislike thus using the probationary period as a sword rather than a shield. The court recognizes that in most instances no such will appear nor be capable of proof. It is true that in many if not most instances where a non-tenured teacher is charged with misconduct and employment is not renewed it will be claimed that the reports on the basis of which action is taken are hearsay and false and can be demonstrated to be so. This is in sharp distinction however to a situation where the charges are alleged to be maliciously or vindictively inspired and fabricated out of whole cloth. Due process under the doctrine of fairness requires an opportunity for the teacher to establish such at a hearing. In plaintiff’s complaint the following allegations do appear and of course raise an issue of fact: IX. While employed by District No. 1, the plaintiff’s overall performance as a teacher, including her relationship with students and staff as well as her teaching ability, was determined by defendant, Mr. Charles S. Marks, the Principal of Ericsson Elementary School, and is contained in periodic written evaluation reports. All of these reports are highly praiseworthy of the plaintiff’s performance with the exception of only one report which is dated November 24, 1972 and attached hereto as Exhibit A. This report is wholly false and was prepared maliciously and without reasonable cause in that Mr. Marks did not conduct a classroom evaluation of the plaintiff on that date or on November 27, 1972 as has been subsequently alleged by Mr. Marks. X. On February 16, 1973, the plaintiff was informed during a conference with defendant, Mr. Charles S. Marks, that her teaching performance was inadequate as reflected in a report entitled “Statement Concerning Work of Teacher and Recommendation for Re-Employment” (attached hereto as Exhibit B) which had been prepared by Mr. Marks. This report is false, malicious and was prepared without reasonable cause. The gravity of the severely damaging statements contained within this report was confirmed by Mr. Marks’ statement to the plaintiff during said conference that “if you sign this, you will never get a job in the State of Minnesota” or similar words to that effect. The falsity and maliciousness of the report is evidenced by Mr. Marks suggestion to the plaintiff that as an alternative to signing the report, the plaintiff should sign a resignation form and Mr. Marks would then modify the report in favor of the plaintiff so that her record would look better. The plaintiff refused to resign. If plaintiff is able to establish these allegations, she ought to be entitled to a forum for so doing in accordance with due process principles with the burden of proof on her. See Wellner infra as to a remand for a hearing even in a case where the court itself heard evidence on the merits of the charges. Taking each of the other four categories in turn, it is conceded that the nonrenewal of plaintiff’s contract had nothing to do with any exercise by her of her First Amendment rights. Plaintiff claims however that her situation comes within one or more of the other three categories established by Roth, thus entitling her to a due process hearing. The court does not believe that plaintiff’s case can be said to come within any of them. It is true that the school principal’s final recommendation to the school board describes the plaintiff as “defensive”, “rude”, “argumentative”, and “sullen”. The principal even concluded that “perhaps Mrs. Ferris should seek a physician to evaluate her well be ing”. Such comments, however, do not seem to be the type that would “seriously damage” one’s standing in the community. In support of her position, plaintiff cites Wisconsin v. Constantineau, 400 U. S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), which involved a procedure whereby the local police chief could make a determination that someone was an excessive drinker and order that person’s name to be posted in retail liquor outlets, thus prohibiting the sale of intoxicating beverages to that person. The Court held that scheme to be an unconstitutional denial of due process, saying that a hearing is required where one’s “good name, reputation, honor, or integrity is at stake”. This court does not believe that describing a teacher as quoted above and even recommending that she see a doctor can be considered a “badge of infamy”, to the same degree as labeling someone an “excessive drinker”, such that the full panoply of due process rights is constitutionally required. Nor does the principal’s evaluation of Mrs. Ferris in the final recommendation rise to the level of “imposing a stigma” that forecloses plaintiff’s freedom to take advantage of other employment opportunities. Plaintiff alleges, and it is not denied, that she has been unable to find employment as a teacher in this area since leaving her position with the defendant. There is no allegation, however, that the failure to find a new teaching position is causally related to defendant’s refusal to rehire and three persons make affidavit that no one ever has inquired concerning her past employment record. It may well be that the fact that plaintiff was not rehired makes her less desirable to other potential employers, but that fact alone does not entitle her to a pretermination hearing. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 574 n. 13, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Calvin v. Rupp, 471 F.2d 1346, 1348 (8th Cir. 1973). Here, in addition to mere non-retention, there is the presence of the final recommendation which describes the plaintiff as rude and argumentative, but such adjectives certainly cannot be considered stigmas, as might the label “racist” (see Wellner v. Minnesota State Junior College Board, 487 F.2d 153 (8th Cir. Oct. 23, 1973)), or even the attribute of disloyalty to superiors (see Wilderman v. Nelson, 467 F.2d 1173 (8th Cir. 1972)). Buggs v. Minneapolis, 358 F. Supp. 1340 (D.Minn.1973). There is no state policy, statutory or otherwise, which automatically bars plaintiff from future public employment by reason of her termination by defendant. Further, the court does not believe that the remarks on plaintiff’s record are sd derogatory or prejudicial as to work a foreclosure of her freedom to take advantage of other employment opportunities. Consequently, the court finds that defendant’s refusal to rehire plaintiff and the accompanying evaluation of the plaintiff were not a deprivation of liberty within the meaning of Roth so as to entitle plaintiff to a due process hearing. Thus, plaintiff can prevail here under the present Roth principles only if the court finds that she was deprived of a “reasonable expectancy” of reemployment. However, plaintiff alleges no state policy, contract terms, or similar understandings that might have given rise to such an expectancy. The statute under which she was employed, Minn. Stat. § 125.17, vests the decision on continued employment in the discretion of the school board; and this court has held that “a plain reading of the statute involved clearly negates the existence of any expectancy of reemployment on the part of the plaintiffs.” Hagen v. St. Paul Bd. of Education, 333 F.Supp. 1355, 1356-1357 (D.Minn.1971) (Devitt, C. J.). Plaintiff alleges that most of the evaluations of her had been favorable and thus she expected to be rehired. But that is insufficient. As the Supreme Court said in Roth: To have a 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. 408 U.S. at 577, 92 S.Ct. at 2709. [Emphasis added]. In the face of Minn.Stat. § 125.17, and lacking any contract terms or customary practices limiting the School Board’s discretion not to rehire Mrs. Ferris, it cannot be said that she had an expectancy of reemployment amounting to a constitutionally protected property interest. See also Wilson v. Pleasant Hill School District R-III, 465 F.2d 1366 (8th Cir. 1972). The court’s present holding is consistent with the Roth holding. Any other decision than as above leads to the conclusion that the Minnesota statute in effect has been amended by the courts to require a hearing and proof of good cause in the case of every non-renewal of a probationary employee; for certainly every discharge or non-renewal is to some extent an impediment to future employment elsewhere and any reasons assigned are indeed not a softening process. This court does hold however, that under what it has designated as Rule 5 above, plaintiff is entitled to a due process hearing. As to the type of prior hearing which should be held, this court should not attempt to specify with particularity. Clearly it should be before an impartial person or persons, should contemplate timely notice, a chance to plaintiff to be represented and to be confronted with and cross-examine witnesses and whatever decision be reached must be supported by some substantial evidence. As stated in Snead v. Department of Social Services of City of N. Y., 355 F.Supp. 764 (S.D.N.Y.1973): “Although we hold that defendants must conduct an adversarial hearing before placing civil service employees in permanent status on involuntary leave of absence for mental unfitness in the absence of exceptional circum stances requiring immediate action, we do not prescribe the precise form such hearings must take. It is up to the state to determine which of the many potential formats it deems most appropriate. All that the Constitution requires is that before involuntary leaves of absence are effectuated, which may continue for one year without pay, tenured civil service employees charged with a mental disability be granted a hearing containing the ‘rudimentary due process’ necessary to the accurate determination of the validity of the allegation. . 335 F.Supp. at 773. This would seem to be in accord with Roth and Perry supra. See particularly a concurring opinion of Chief Justice Burger in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). See also Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), where the United State Supreme Court takes the same view in parole violation and welfare hearings and does not attempt to delineate the exact procedures short of laying down broad outlines. At such a hearing in addition to an attempt to show a violation of what the court has designated as Rule 5 above plaintiff should not be barred from presenting additional evidence, if any she has, in an attempt to bring herself within and under Rules 1 through 4 of the Roth case as above outlined. The court has in mind however fn. 12 of Roth reading as follows: “The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons.” and makes no further ruling on the matter at this time. When and if plaintiff establishes a violation of any constitutional rights then will it be timely to reconsider the matter and pursue any claim for damages and other relief requested in her complaint. A separate order has been entered. . If there are any supplementary rules or regulations they were not produced; nor were any other portions of the statute called to the court’s attention. . In a letter dated April 10, 1973, Bernard W. Kaye, Associate Superintendent of Schools for Personnel, of the Minneapolis Public Schools gave the following specific reasons why Mrs. Ferris was not recommended for reemployment : “1. Unsatisfactory relationship with pupils, staff and parents. 2. Poor judgment in making decisions. 3. Resistance to following daily routines expected of all teachers in the building such as inadequate preparation of bulletin boards, tardiness in reporting for work, and laxness in receiving students from and escorting students to various locations in the building.” . The last report dated February 16,1973 reads as follows: “PRINCIPAL’S SUMMARY STATEMENT This evaluation, is based on_3 visits to the teacher’s classroom_conferences. COMMENTS: Three conferences, as noted, plus many informal private visits to the room and discussions on attitude, tardiness, and feelings in general. My concern, as principal, is that Mrs. Ferris, within the last three weeks, has become almost inoperative in her relationships to various members of the Ericsson staff, and a source of irritation to some parents. Perhaps Mrs. Ferris should seek a physician to evaluate her wellbeing. Mrs. Ferris states that she signed the teacher’s copy of her evaluation, and that Mr. Lindstedt has this copy, and that this is all she is going to sign. The re-employment of this teacher is Recommended _. ^Recommended with reservation _. Not recommended X. (*This applies to first and second year of probation only) Date February 16, 1973 Signed /s/ Charles S. Marks Principal” . In Calvin the court stated: “The only injury plaintiff alleges here, however, is that his record of non-retention will make him less desirable to other potential employers. Even if we assume that plaintiff could have satisfied his burden of proof on this contention in the district court, this fact alone does not establish a right to some form of pretermination hearing.” 471 F.2d at 1348.
4275037-21900	PER CURIAM: Lennoard Hare and Melvin Coleman were found guilty by a jury of conspiracy to distribute or possess with the intent to distribute marijuana and/or cocaine. Both challenge their convictions and Hare challenges his life sentence. We affirm. I. Factual and Procedural Background A. Pre-Trial Proceedings In June 2012, a grand jury returned the first-superseding one-count indictment against Lennoard Ray Hare, Natasha Williams, Kimberly Brown, Melvin Coleman, LaTonya Wadlington and LaSonya Hall, charging them with conspiracy to distribute or possess with the intent to distribute 5 kilograms or more of cocaine, 1,000 kilograms or more of marijuana, and less than 28 grams of cocaine base (crack cocaine). 21 U.S.C. §§ 841, 846. All the co-defendants except Hare and Coleman pleaded guilty. Before trial, Coleman filed a motion in limine asking the court to exclude statements he made during a May 2011 traffic stop because of Miranda violations. This motion effectively served as an untimely motion to suppress. The district court noted that it was untimely as a motion to suppress but held a hearing. During the hearing, Greenville Police Department Officer Chris Rosamond testified that he stopped Coleman’s vehicle for following too closely and failing to signal a lane change. Rosamond had also received information from DPS officers that they suspected that Coleman might be involved in a narcotics violation. At the beginning of the stop, Rosamond asked where Coleman was traveling from, and Coleman said that he was coming from Tennessee after visiting with family. The car was rented in the name of a woman not present, and Coleman was unable to produce a rental agreement. Rosamond learned that Coleman had a pending arrest warrant for unpaid child support and began waiting for confirmation that it was still outstanding. Based on the lack of a rental agreement and what he described as Coleman’s evasive answers, Rosamond asked for consent to search the vehicle, which Coleman gave. Rosamond asked Coleman if he had any narcotics, weapons, or large sums of money in the car and patted Coleman down, all of which he normally did in similar situations. Coleman responded that he always carried money with him. Rosamond asked Coleman how much money he had in the car, and Coleman replied that he had $80,000. During the search, Rosamond found approximately $186,000 in cash in the vehicle. Coleman was eventually arrested on the outstanding warrant. The district court denied the motion in limine/motion to suppress the statements made during the stop, concluding that Coleman was never subjected to custodial interrogation and Miranda warnings were not required. B. Trial Evidence Trial evidence showed that in 2010, Nika Keith became the target of a drug investigation by the Texas Department of Public Safety, which eventually led officers to an associate of Keith’s, Defendant-Appellant Hare. Keith pleaded guilty and began to cooperate with DPS, including making recorded phone calls to Hare during which they discussed drug trafficking. DPS officers began conducting surveillance on Hare. A January or February 2011 search of a warehouse that Hare frequented resulted in the seizure of large scales, plastic wrap, remainders of large amounts of marijuana, and a hat that bore the name “Grizzly Corporation,” a company that belonged to Hare. Officers also observed Hare frequenting co-defendant Natasha Williams’s house in the Cedar Valley area of Dallas. An April 2011 search of that house resulted in the seizure of seven pounds of marijuana, eight empty kilogram wrappers, wrapping material for drugs and money, 13.58 grams of crack cocaine, and $20,700 in cash. In May 2011, pursuant to a court order, Hare’s phone was tracked via GPS to Kentucky and back to Dallas. On May 13, 2011, the phone was again tracked traveling between Dallas and Kentucky. DPS agents set up surveillance on Hare’s route back to Dallas. Two vehicles were observed. One was a black Lexus belonging to co-defendant Kimberly Brown, which Brown was driving with Hare as a passenger. The other was a 2011 white Ford Explorer driven by Defendant-Appellant Coleman. Agents observed the two vehicles traveling together, including getting on and off of the highway together, and receipts indicated they purchased gas together. Both vehicles were stopped by local law enforcement officers in Texas for traffic violations. During the stops, officers found approximately $111,000 in Brown’s car and $186,000 in Coleman’s Explorer. Following these traffic stops, DPS officers executed a search warrant for Brown’s residence in Duncanville, Texas. They found food saver bags and food saver machines that seal up the bags, which are materials commonly used for packaging narcotics. An arrest warrant for Hare and a search warrant for his residence in Mid-lothian, Texas, were executed by officers in January 2012. During that search, officers found approximately $21,000 in coins in a fountain in front of Hare’s house, a money counter box, and a .44 magnum pistol. Keith, Williams, Brown, and co-defendant LaSonya Hall each testified at trial. Nika Keith testified that Hare sold him about 50 pounds of marijuana per week from 2004 through Keith’s arrest in 2010, for a total of approximately 4,000 pounds of marijuana. Keith further testified that Hare sold him between 20 and 50 kilograms of cocaine from 2007 through 2010. Keith also stated that he saw bags of drugs in a Glenn Heights house that belonged to Hare’s girlfriend, “Tasha, Natasha, something like that.” Natasha Williams testified that Hare was her boyfriend and that he used her two houses to store substantial amounts of cocaine, marijuana, and money. She testified that Keith came to her house in Glenn Heights to buy marijuana from Hare. Williams testified that the marijuana, kilogram wrappers, and money found in the April 13, 2011, search of her house belonged to Hare. Kimberly Brown testified that she, Hare, and Coleman took two trips to Louisville, Kentucky, selling 10 kilograms of cocaine each time. On each trip, Coleman transported the cocaine in a separate vehicle. On both trips, Brown, Hare, and Coleman stayed at the Galt House Hotel in two different rooms. Records from the Galt House Hotel confirmed that Coleman was registered on April 21, 2011, for one night and that both Coleman and Brown were registered to stay at the hotel from May 11 through May 13, 2011. Brown testified that Coleman kept the cocaine in his room, brought it to Hare and Brown’s room to sell, took the money from the sales back to his room, and drove back to Texas with all or most of the money. Phone records obtained and analyzed by the DEA showed 104 calls between Hare’s phone and Coleman’s phone between May 11 and May 13, 2011. Brown testified that she and Hare subsequently made a third trip to Kentucky to sell 300-400 pounds of marijuana, and a fourth trip to sell 10 kilograms of cocaine. LáSonya Hall testified that she transported marijuana from Dallas to Oklahoma for Hare multiple times. Hall testified that she would also transport the money for the marijuana from Oklahoma to Hare in Dallas. On one of those occasions, she was stopped by law enforcement with eight pounds of marijuana. In her plea agreement, she accepted responsibility for transporting a total of 250 pounds of marijuana for Hare. Hare and Coleman were both convicted after a joint jury trial. The jury found Hare guilty of conspiracy to distribute or possess with intent to distribute 1,000 kilograms of marijuana and 5 kilograms of cocaine. The jury found Coleman guilty of conspiracy to distribute or possess with intent to distribute 5 kilograms of cocaine. Coleman filed a written motion for new trial, based on the admission of the state ments he made during the traffic stop. The district court found that Coleman had waived his arguments for suppression by not raising them before trial, and that the motion should be denied on the merits for the same reasons it denied the untimely motion to suppress. Hare was sentenced to life imprisonment and five years of supervised release. Coleman was sentenced to a mandatory minimum 120 months of imprisonment and five years of supervised release. Both Hare and Coleman appeal their convictions, and Hare appeals his sentence. II. Discussion Coleman and Hare each raise three issues on appeal. Coleman argues that the district court should have suppressed statements he made during the May 13, 2011, traffic stop, and that the court abused its discretion by denying his motion for new trial based on the admission of those statements. Both Hare and Coleman claim that the evidence presented at trial was insufficient to support their convictions. Hare also argues that the district court abused its discretion in calculating the drug weight attributable to him at sentencing, and that his life sentence constitutes a violation of the Eighth Amendment. We address each issue in turn. A. Motion to Suppress and Motion for New Trial (Coleman) Coleman argues that statements he made during the May 13, 2011 traffic stop should have been suppressed because they were made without Miranda warnings. He raises this issue both as a challenge to the denial of his motion in limine, which was effectively an untimely motion to suppress, and as a challenge to the denial of his motion for a new trial. Coleman asserts that two statements should be suppressed: the statement he made to Rosamond that he was returning from Tennessee and the statement that he had $80,000 in the car. Rosamond testified about the statements, and the prosecution referenced both statements at trial to argue that Coleman was untruthful with Ro-samond because he was trying to cover up his drug trafficking. Coleman suggests that, in considering the denial of his motion in limine, we should review factual findings for clear error and legal conclusions de novo, because the district court actually reached the merits of the motion. See United States v. Gomez, 623 F.3d 265, 268 (5th Cir.2010); United States v. Marx, 635 F.2d 436, 441 (5th Cir. Unit B Jan.1981). The government argues that plain error review is appropriate, because Coleman forfeited the error by failing to raise it by the pretrial deadline for a motion to suppress. The district court’s denial of a motion for new trial is reviewed for an abuse of discretion. United States v. Villareal, 324 F.3d 319, 325 (5th Cir.2003). We need not resolve the standard of review applicable to the denial of Coleman’s untimely motion to suppress. Even reviewing the facts for clear error and the law de novo, the district court committed no error. “Miranda warnings must be administered prior to ‘custodial interrogation.’ ” United States v. Bengivenga, 845 F.2d 593, 595 (5th Cir.1988) (en banc) (quoting Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). “A suspect is ... ‘in custody’ for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” Id. at 596. “Two discrete [inquiries] are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave.” United States v. Cavazos, 668 F.3d 190, 193 (5th Cir.2012) (quoting J.D.B. v. N. Carolina, — U.S. -, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011)). A determination of whether a defendant is “in custody” for Miranda purposes depends on the “totality of circumstances.” Id. Some important factors include: (1) the length of the questioning; (2) the location of the questioning; (3) the accusatory, or non-accusatory, nature of the questioning; (4) the amount of restraint on the individual’s physical movement; and (5) statements made by officers regarding the individual’s freedom to move or leave. United States v. Wright, 777 F.3d 769, 775 (5th Cir.2015). Custody for Miranda purposes requires a greater restraint on freedom than seizure under the Fourth Amendment. Bengivenga, 845 F.2d at 598. It is well-established that ordinary traffic stops do not place a person “in custody” for purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 437-39, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (finding brevity, spontaneity, and public nature of normal traffic stop, and small number of officers involved, renders stop non-custodial). We conclude that Coleman was not “in custody” for purposes of Miranda when he made any of the challenged statements. Up to the time he was actually arrested on the unrelated warrant at the end of the stop, the surrounding circumstances and degree of restraint never meaningfully advanced beyond what is typical during an ordinary traffic stop. See id. The stop was conducted on the side of a public roadway, where a traffic stop is normally conducted; Rosamond never engaged Coleman in specific, lengthy or accusatory questioning about any suspected offense; and Coleman was either sitting in his car or standing outside it, unrestrained, during the entire stop. See id.; Wright, 777 F.3d at 775 (discussing these as factors to be considered). While the 30-minute stop was arguably somewhat longer than a typical traffic stop, the length was extended primarily because reasonable suspicion had arisen regarding a different offense — Ro-samond was waiting for confirmation on the unrelated warrant — and because Coleman consented to a- search, not because of any extended questioning. Because the stop was non-custodial, Miranda warnings were not required. The district court did not err when it denied the motion in limine/motion to suppress or the motion for a new trial. B. Sufficiency of the Evidence (Hare and Coleman) Coleman and Hare preserved these objections by moving for acquittal; we thus review the sufficiency of the evidence de novo. United States v. Grant, 683 F.3d 639, 642 (5th Cir.2012). We view all evidence in the light most favorable to the jury’s verdict and “determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quotation omitted). To support a drug conspiracy conviction, the government must establish “(1) the existence of an agreement between two or more persons to violate narcotics law; (2) the defendant’s knowledge of the agreement; and (3) the defendant’s voluntary participation in the agreement.” United States v. Gonzalez, 76 F.3d 1339, 1346 (5th Cir.1996). “A jury may infer the elements of a conspiracy conviction from circumstantial evidence: An agreement to violate narcotics laws may be inferred from concert of action. Knowledge of the conspiracy may be inferred from a collection of circumstances.” United States v. Leal, 74 F.3d 600, 606 (5th Cir.1996) (quotations and citations omitted). Even uncorroborated accomplice testimony may be sufficient to support a conviction, if it is not “incredible or otherwise unsubstantial on its face.” United States v. Morales, 477 F.2d 1309, 1312 (5th Cir.1973) (quoting Tillery v. United States, 411 F.2d 644, 647 (5th Cir.1969)). 1. Coleman Coleman challenges the credibility of the testimony of co-defendant Kimberly Brown. Brown’s testimony was the primary evidence tying Coleman to the conspiracy. The other co-defendants testified that they did not know Coleman. However, Brown testified that she, Hare, and Coleman took two trips to Louisville, Kentucky, selling 10 kilograms of cocaine each time. She testified about how the three transported the cocaine and the money, that they all stayed at the Galt House Hotel, how they conducted drug transactions in the hotel, and how they transported the money back to Dallas. Additional evidence corroborated Brown’s testimony. Records from the hotel confirmed Coleman was registered for a night in April 2011, and that both Coleman and Brown were registered May 11 through May 13, 2011. Telephone records showed 104 calls between Hare’s phone and Coleman’s phone between May 11 and May 13, 2011. Officers observed Brown’s car and Coleman’s car traveling together on the route back from Kentucky. Further, during the traffic stops, officers found $111,000 cash in Brown’s car and $186,000 in cash in Coleman’s car, which aligned with the testimony that 10 kilograms of cocaine sold for approximately $300,000. This evidence was sufficient for the jury to find that Coleman agreed to participate in a conspiracy to distribute at least 5 kilograms of cocaine. The jury was properly instructed about accomplice testimony, and the jury was informed that Brown had pleaded guilty and was cooperating with the hope of a reduced sentence. The jury found Brown’s testimony to be credible, and other evidence corroborated her testimony. There is no basis to overturn the jury’s verdict. 2. Hare Hare likewise challenges the sufficiency- of the evidence by attacking the credibility of the co-defendants, .arguing that they had every incentive to lie and attribute the drug trafficking to him. Four separate individuals testified that Hare sold substantial amounts of cocaine and marijuana, possessed substantial amounts of cocaine and marijuana, and directed their trafficking of cocaine and marijuana, over multiple years and in multiple states. Keith testified that between 2004 and 2010, he bought 50 pounds a week of marijuana from Hare, for a total of 4,000 pounds, and from 2007 to 2010, bought between 20 and 50 kilograms of cocaine from Hare. Williams testified that the marijuana, cocaine, packaging materials, and money found in her house were Hare’s, and that Hare regularly used her houses to store large amounts of marijuana, cocaine and money. Brown testified that she and Hare traveled to Kentucky four times to sell marijuana and cocaine, totaling 400 pounds of marijuana and 30 kilograms of cocaine. Hall testified that she transported mari juana from Dallas to Oklahoma at Hare’s direction multiple times, and that she transported a total of 250 pounds of marijuana for Hare. Other evidence corroborated the testimony of the witnesses and co-defendants, including surveillance and the money, packaging materials and weapons found during the various searches of the co-defendants’ houses and other locations involved in the conspiracy. This evidence was sufficient for the jury to find that Hare agreed to participate in a conspiracy to distribute at least 1,000 kilograms of marijuana and 5 kilograms of cocaine. Again, the jury was properly instructed about accomplice testimony and was informed about the pleas of the co-defendants and that they were testifying with the hope of a reduced sentence. The jury found the testimony credible. There is no basis to overturn the jury’s verdict. C. Drug Weight (Hare) Hare next argues that the district court erred in its determination of the drug weight attributable to him at sentencing. The pre-sentence report (“PSR”) concluded that Hare was responsible for 5,022 kilograms of marijuana and 180 kilograms of cocaine (equivalent to 36,000 kilograms of marijuana pursuant to U.S.S.G.' § 2D1.1 cmt. n. 8), for a total of the equivalent of 41,022 kilograms of marijuana. Under the 2013 Sentencing Guidelines, this drug weight resulted in a base offense level of 38. U.S.S.G. § 2Dl.l(e)(l). After other enhancements and reductions not at issue on appeal, Hare’s final offense level was 42. Together with criminal history category II, Hare’s Guidelines range was 360 months to life. The district court sentenced him to life. A district court’s determination of the quantity of drugs for which a defendant is responsible is a factual finding reviewed for clear error. See United States v. Cooper, 274 F.3d 230, 238 (5th Cir.2001). The drug weight includes the drugs for which the defendant is directly responsible and the drugs that can be attributed to him in a conspiracy. See U.S.S.G. § lB1.3(a)(l). For conspiratorial conduct to be attributed to a defendant, the co-conspirator’s conduct must be “reasonably foreseeable” to the defendant and within the scope of the defendant’s agreement. United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir.1994). In determining drug weight to calculate the offense level under the Guidelines, the court may rely on statements and testimony from codefendants to calculate an amount higher than the jury’s verdict, provided the information bears the minimum indicia of reliability. See United States v. Cantu-Ramirez, 669 F.3d 619, 628-29 (5th Cir.2012). On appeal, Hare argues that he should only be held responsible for 2,294 kilograms of marijuana, based on the marijuana that was actually seized from Williams’ house and Hall’s vehicle, and converting the currency actually seized from the various searches to its cocaine equivalent. This barely-briefed argument clearly fails under the standards described above. The district court held Hare accountable for the amount of cocaine and marijuana that was supported by statements and trial testimony from Keith, Williams, Brown, and Hall, whom it found to be credible, and the amounts of drugs and money found during searches and traffic stops of Hare and the other co-defendants. Other than again challenging the credibility of the co-defendants, Hare offers no argument undermining or rebutting any of the drug weights contained in the PSR or testified to by the co-defendants at trial. Thus, we find no error in the district court’s drug weight calculation. D. Eighth Amendment (Hare) Hare argues that his life sentence for drug trafficking is disproportionate and constitutes a violation of the Eighth Amendment. Because he raises this argument for the first time on appeal, we review for plain error. United States v. Helm, 502 F.3d 366, 367 (5th Cir.2007).
1412728-11469	ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT COWEN, Senior Judge. Plaintiff is a former major in the United States Army who was released from active duty on November 1, 1974, following his twice nonselection for promotion to the next higher permanent grade. In his motion for summary judgment, plaintiff challenges his release from active duty on the grounds that an Officer Efficiency Report (OER) considered by the two selection boards is void because: (1) he was rated by the wrong rater and that under the facts,:a deviation from the regular rating scheme was unauthorized, and (2) that the Army retroactively changed his designated rater contrary to regulation. Thus plaintiff contends his nonselections are illegal. Plaintiff seeks retroactive restoration to active duty, back pay, and other relief. Defendant argues that plaintiff’s claim is barred by laches, and alternatively, that plaintiff has failed to prove any material legal error. After consideration of the parties’ oral arguments and briefs, we conclude that the case should be remanded to the Army Board for the Correction of Military Records. I. Following a brief tour of inactive duty in the United States Navy in 1955 and 1956, plaintiff enlisted in the United States Army on March 18, 1958. After attending Officer Candidate School, he accepted an appointment as a second lieutenant in the United States Army Reserves. He was appointed to the Regular Army on October 27, 1966; and promoted to the temporary grade of major on September 25, 1967. During the period from June 11 to December 22, 1967, plaintiff served as an assistant training officer in the Fifth Infantry Division, Fort Carson, Colorado. On May 14, 1970, plaintiff appealed an OER he received for this period on the grounds that the rater, Lt. Col. Kimball, was not in a position to rate him until September 9, 1967. The rater commented that plaintiff was confronted with emotional problems which seriously interfered with the performance of his duties, and that although he had the potential for exceptional or outstanding performance, he had not demonstrated it in his last assignment. On May 14, 1971, the Army determined that plaintiff was correct and amended the OER to reflect only the period from September 9, 1967 to December 22,1967. The Army then obtained a delayed OER on plaintiff for the period from June 11, 1967 to September 7, 1967, from Major Richard Cropper, the officer plaintiff alleged to be his proper rater for the period from June 11 to September 7, 1967. In the narrative portion of the OER, Major Cropper stated as follows: * * * Major Bishop performed these duties in a marginally satisfactory manner. He appeared to be under heavy emotional strain from his personal affairs and as a result was not dependable in all situations. * * * Major Bishop demonstrated his potential while on a division field training exercise by working in the division tactical operations center in an excellent manner. * * * Major Bishop has the potential to develop into a competent staff officer. On September 9, 1974, plaintiff filed another appeal to remove both OERs from his records. The Special Review Board of the Office of the Deputy Chief of Staff of Personnel (DCSPER) ordered the removal of the delayed OER covering the period from June 11,1967 to September 7,1967, on the grounds that a report rendered more than 4 years after the rating period was “highly suspect.” However, the Special Review Board denied plaintiff’s request to delete the September-December 1967 OER on the ground that it was time-barred, and the OER was returned to his records. Meanwhile, plaintiff had twice been considered but not selected for promotion, and was honorably discharged on November 1, 1974. On January 3, 1977, plaintiff filed an application with the Army Board for the Correction of Military Records (ABCMR) seeking removal of the September-December 1967 OER and retroactive promotion. Plaintiff alleged that Lt. Col. Kimball, his rater on this OER, was the wrong rater according to Army Regulation 623-105. The ABCMR referred plaintiff’s file to the DCSPER Special Review Board and a Standby Advisory Board for advisory opinions. The Special Review Board concluded that there had indeed been a deviation from the normal rating scheme, but that such deviation was in plaintiff’s best interest, because of personal circumstances existing between plaintiff and Major Cropper, his designated rater. The Special Review Board found that the deviation was indirectly authorized by AR 623-105 and that although it was unable to establish when Major Cropper stopped being the rater and Lt. Col. Kim-ball became the rater, this detail was not considered germane to the application or an adverse reflection on Lt. Col. Kimball’s judgment or objectivity. The Standby Board considered plaintiff for promotion on the basis of a record that did not contain the contested OER and advised the Correction Board that it would not recommend plaintiff for promotion under the 1973 se lection board criteria but that it would recommend plaintiff for promotion under the 1974 criteria. On October 4, 1978, the ABCMR conducted a hearing at which plaintiff testified that Major Cropper told him on December 23, 1967 that he (Cropper) would be preparing plaintiff’s OER. Plaintiff also stated that he had very little contact with Lt. Col. Kimball or the indorser of the OER, and that the deviation from reporting channels “was retroactive to [his] duty performance.” The Board concluded, in part, as follows: 2. That although the applicant may not have been rated by the designated rating official, it appears that there were circumstances of a personal nature, between the applicant and the designated rater, that made it inappropriate for that individual to rate the applicant; that under such circumstances the designation of another officer to render an OER on the applicant for the period, appears to have been appropriate. 3. That the individual who did rate the applicant had apparently been in a position to observe the applicant’s manner of performance during the period in question, as evidenced by the fact that the applicant stated in his appeal of 14 May 1970 that the rater was in such a position from 9 September 1967. 4. That no creditable evidence has been presented to show that the contested report does not reflect an accurate and valid appraisal of the manner of his performance during the period. 5. That in consideration of the foregoing findings and conclusions, there is insufficient evidence of an error or injustice to warrant the removal of the contested OER from the applicant’s official military personnel file, or for promoting him to the, Regular Army grade of major. Plaintiff alternatively sought correction of his records to show that he was eligible for re-enlistment consistent with governing statute and regulation. The Board granted plaintiff this relief. On December 10, 1978, plaintiff filed a request for reconsideration by the Correction Board, submitting a letter from then retired Major Cropper dated December 3, 1978. In that letter, Major Cropper stated that he was plaintiff’s immediate supervisor during the period at issue and that, upon plaintiff’s departure from the section, Lt. Col. Kimball directed him not to write plaintiff’s efficiency report. The letter went on to say that “no matter of personal nature existed” between Major Cropper and plaintiff at the time of the OER and that plaintiff’s “performance of duty was exceptional.” In its decision of December 20, 1978, the Board referred to its earlier conclusion that circumstances of a personal nature between appellant and the designated rater (Major Cropper) made it more desirable for another individual to rate him, and also that the individual who actually made the rating had apparently been in a position to rate him and to render a valid appraisal of him. The Board apparently gave little or no credence to the letter from Major Cropper, noting that it was apparently solicited and made more than 4 years after the event, when Major Cropper was in a retired status. Plaintiff’s request for reconsideration by the Board was denied on January 11, 1979. Plaintiff’s request for relief from the Secretary of the Army was similarly denied on March 29, 1979. Plaintiff filed suit in this court on July 10, 1980. II. We first consider defendant’s contention that plaintiff’s claim is barred by the doctrine of laches. While pursuit of administrative relief in the case of a military discharge is a permissive, rather than a mandatory, remedy and does not toll the running of the statute of limitations, this court has recognized that “in military cases it would be improper and erroneous * * * to apply laches in a way that would spur the commencement of suit as soon as discharges become final, before the results of seeking administrative relief are known.” Cason v. United States, 200 Ct.Cl. 424, 432, 471 F.2d 1225, 1230 (1973). Plaintiffs should not be penalized for pursuing less costly and more expeditious means of relief, and the military should have a fair chance to correct its mistakes. Id. A review of the facts reveals that for the most part, plaintiff has steadily pursued his administrative remedies since he first saw the 1967 OER in May 1970. The Army advised him that he had changed duty as of September 8, 1967, and as a consequence, the original rating period was split and a delayed report was obtained from Major Cropper covering the period from June 11, 1967 to September 7, 1967. Plaintiff did not attempt to have the delayed OER removed from his records, because it was not until after his return from a second tour of duty in Vietnam in February 1973, that he discovered an Army memorandum dated January 22, 1971, substantiating the fact that he had not had a change of duty as of September 8, 1967. With this information, he submitted his second appeal in 1974, which was denied on October 16, 1974, with respect to the September to December 1967 OER. As previously stated, his records were sent for promotion re-evaluation to the Army Standby Advisory Board, which considered him for promotion on October 31, 1974, under both the February 1973 and March 1974 criteria. On January 3, 1977, approximately 2 years and 2 months after his discharge, he filed an application with the ABCMR which denied the application by a decision of which he was notified on November 8, 1978. On December 10, 1978, he filed his application for reconsideration, which was again denied by the Board on December 20, 1978. He filed suit on July 10, 1980. In view of the foregoing facts, we find that there exists here no unreasonable or inexcusable delay which requires the dismissal of plaintiff’s claim on the ground of laches. See Deering v. United States, 223 Ct.Cl. 334, 620 F.2d 242 (1980). III. We now turn to the merits of plaintiff’s claim. The standard of review applicable to a decision of the ABCMR as set forth in the Sanders case is: * * * Once a plaintiff has sought relief from the Correction Board, such plaintiff is bound by that board’s determination unless he can meet the difficult standard of proof that the Correction Board’s decision was illegal because it was arbitrary, or capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law, regulation, or mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced, and money is due.
3798922-28633	ORDER ADOPTING REPORT AND RECOMMENDATION SCHILTZ, District Judge. This matter is before the Court on the parties’ objections to Chief Magistrate Judge Raymond L. Erickson’s Report and Recommendation (“R & R”) dated December 1, 2006. Judge Erickson recommends denying the parties’ cross-motions for summary judgment. The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Based on that review, the Court adopts the R & R and denies the motions. Plaintiff Stacy O. Johnson brings this action against defendant Michigan Claim Service, Inc. (“MCS”), alleging that MCS terminated his employment in violation of 38 U.S.C. § 4316(c) of the Uniformed Services Employment and Reemployment Rights Act. Section 4316(c) provides that [a] person who is reemployed by an employer under this chapter shall not be discharged from such employment, except for cause ... within one year after the date of such reemployment, if the person’s period of service before the reemployment was more than 180 days[J 38 U.S.C. § 4316(c). The parties do not dispute that Johnson was “reemployed by an employer under this chapter” after a previous period of service exceeding 180 days, or that he was discharged within one year after the date of his reemployment. Instead, the parties dispute whether John son was discharged “for cause” within the meaning of § 4316(c). Unfortunately, the parties largely confuse this question — that is, the question of whether Johnson’s discharge was “for cause” — with the question of whether the non-competition and confidentiality agreement that Johnson refused to sign would have been legally enforceable. The two questions are related, but not identical. As Judge Erickson recognized, the ultimate issue in this case is not whether the non-competition and confidentiality agreement would have been enforceable. The ultimate issue is whether MCS’s discharge of Johnson for refusing to sign the agreement was reasonable under § 4316(c) (an issue on which MCS bears the burden of proof, see 20 C.F.R. § 1002.248(a) ). If the agreement would have been unenforceable, then it can be assumed that Johnson’s dismissal was unlawful. An employer almost surely does not have “cause” to fire an employee for refusing to sign an unenforceable agreement. As Judge Erickson explained, though, this Court cannot decide on this record and briefing whether the agreement that Johnson refused to sign was in fact unenforceable. One problem is that it is not clear whether Minnesota law or Michigan law controls, and Minnesota law appears to differ from Michigan law in important respects. Compare Freeman v. Duluth Clinic, Ltd., 334 N.W.2d 626, 630 (Minn.1983) (mere continuation of employment may be sufficient consideration for non-competition agreement, but only if it is bargained-for and provides the employee with “real advantages”) with QIS, Inc. v. Indus. Quality Control, Inc., 262 Mich.App. 592, 686 N.W.2d 788, 789 (2004) (mere continuation of employment is sufficient consideration for non-competition agreement). The parties have inexplicably failed to brief this issue. A second problem is that, regardless of which state’s law controls, there are important factual issues on which the record is either silent or in conflict. It is also true, as Johnson argues, that even if the agreement would have been enforceable, Johnson’s dismissal may not have been lawful. An employer can act unreasonably in firing an employee for refusing to sign an enforceable non-competition and confidentiality agreement. The reasonableness of the employer’s conduct depends on all of the circumstances. MCS argues that there is no dispute that it faced adverse economic conditions which necessitated the agreement. But there is evidence in the record that the division in which Johnson was employed was in good financial health, Stubbs Dep. 69, and that two other employees were offered compensation in exchange for signing the agreement, while Johnson was not, Johnson Dep. Ex. 3 at 4 (Docket No. 22-3 at 4). The bottom line is that the parties will have to try the question of whether the firing of Johnson was “for cause.” Be cause the enforceability of the non-competition and confidentiality agreement under state law is an important — possibly determinative — factor relevant to that question, the parties will at some point need to submit full briefs on whether Minnesota or Michigan law controls. The parties should submit briefs on that issue, at the latest, when they submit their motions in limine. ORDER Based on all of the files, records, and proceedings herein, the Court ADOPTS Judge Erickson’s Report and Recommendation [Docket No. 49]. IT IS HEREBY ORDERED THAT: 1. Defendant’s motion for summary judgment [Docket No. 19] is DENIED; 2. Plaintiffs motion for partial summary judgment [Docket No. 25] is DENIED; and 3. To the extent that plaintiffs complaint may be read to assert a claim under 38 U.S.C. § 4311, the claim is DISMISSED WITHOUT PREJUDICE as abandoned. REPORT AND RECOMMENDATION ERICKSON, Chief United States Magistrate Judge. I. Introduction This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the Motion of the Defendant Michigan Claim Service, Inc. (“MCS”), for Summary Judgment, as well as the Motion of the Plaintiff Stacy O. Johnson (“Johnson”) for Partial Summary Judgment on the liability issue. A Hearing on the Motions was conducted on November 1, 2006, at which time, the Plaintiff appeared by Christopher P. Rosengren, Esq., and the Defendant appeared by Jeremy D. Sosna, and Elizabeth A. Grande, Esqs. For reasons which follow, we recommend that both Motions be denied. II. Factual and Procedural Background This action arises from Johnson’s allegation that MCS terminated his employment, in violation of the Uniformed Services Employment and Reemployment Rights Act, Title 38 U.S.C. § 4828, et seq. (“USER-RA”). See, Complaint, Docket No. 1. Specifically, Johnson contends that MCS failed to retain him for a period of one (1) year, following his return from a military deployment of more than one hundred and eighty (180) days. Id. at page 2, ¶ 3. In response, MCS alleges that it had just cause for terminating Johnson’s employment, as he refused to comply with a company policy, that was instituted after his return, and that required key management members, and sales staff, to execute a non-compete and confidentiality agreement (the “Agreement”), as a condition of continued employment. See, Defendant’s Memorandum of Law, Docket No. 21-1, at 1. At the time that Johnson began working for MCS in 2002, he was a Captain in the Minnesota Army Reserves. See, Complaint, at page 2, ¶¶ 5-6. He was mobilized for Active Duty in Iraq, on March 15, 2003, where he remained until his deactivation on June 12, 2004. Id. at ¶¶ 8-9; see also, Deposition of Stacy Johnson (“Johnson Dep. ”), Docket No. 29, Exhibit 1, at p. 13. On May 11, 2004, Johnson filed a request, under USERRA, for reemployment with MCS, and he returned to work on August 2, 2004, in the same position as he held prior to his activation, and with the same pay. Id. at ¶¶ 10-11. In January of 2005, MCS presented the Agreement to over thirty-three (33) staff members, including Johnson, and informed them that, if they failed to sign the Agreement, they would be terminated. See, Defendant’s Motion in Siipport, Docket No. 21, at 8-11. Johnson refused to sign the Agreement unless he were given “additional severance pay or compensation,” id. at 10, and, on January 11, 2005, his employment with MCS was terminated, along with that of several other non-military MCS staff members, who had also refused to sign the Agreement. See, Complaint, at page 2, ¶ 12. Johnson filed his Complaint on December 15, 2005. See, Complaint, Docket No. 1. On September 8, 2006, MCS moved for Summary Judgment, see Docket No. 19, and on the same day, Johnson filed his Cross-Motion for Partial Summary Judgment on the issue of liability, see, Docket No. 25. III. Discussion A. Standard of Review. Summary Judgment is not an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury in weighing the evidence, and in rendering credibility determinations. See, Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1118 (8th Cir.2006), citing Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Midwest Oilseeds, Inc. v. Limagrain Genetics Corp., 387 F.3d 705, 711 (8th Cir.2004), cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005). Summary Judgment is appropriate when we have viewed the facts, and the inferences drawn from those facts, in a light most favorable to the nonmoving party, and we have found no triable issue. See, Smutka v. City of Hutchinson, 451 F.3d 522, 526 (8th Cir.2006), citing Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir.2003); Eide v. Grey Fox Technical Servs. Corp., 329 F.3d 600, 604 (8th Cir.2003); Philip v. Ford Motor Co., 328 F.3d 1020, 1023 (8th Cir.2003). For these purposes, a disputed fact is “material” if it must inevitably be resolved and the resolution will determine the outcome of the case, while a dispute is “genuine” if the evidence is such that a reasonable Jury could return a Verdict for the nonmoving party. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Planned Parenthood of Minnesota/South Dakota v. Rounds, 372 F.3d 969, 972 (8th Cir.2004); Fenney v. Dakota, Minnesota & Eastern R.R. Co., 327 F.3d 707, 711 (8th Cir.2003). As Rule 56(e) makes clear, once the moving party files a properly supported Motion, the burden shifts to the nonmov-ing party to demonstrate the existence of a genuine dispute. In sustaining that burden, “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavit or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e), Federal Rules of Civil Procedure; see also, Anderson v. Liberty Lobby, Inc., supra at 256, 106 S.Ct. 2505; Eddings v. City of Hot Springs, Ark., 323 F.3d 596, 602 (8th Cir.2003). Moreover, the movant is entitled to Summary Judgment where the non-moving party has failed “to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, supra at 322, 106 S.Ct. 2548; see also, Forest Park II v. Hadley, 408 F.3d 1052, 1057 (8th Cir.2005); Mercer v. City of Cedar Rapids, 308 F.3d 840, 843 (8th Cir.2002); Hammond v. Northland Counseling Center, Inc., 218 F.3d 886, 891 (8th Cir.2000). No genuine issue of fact exists in such a case because “a complete failure of proof concerning an essential element of the nonmoving party’s case nec essarily renders all other facts immaterial.” Celotex Corp. v. Catrett, supra at 323, 106 S.Ct. 2548; see also, Sallis v. University of Minnesota, 408 F.3d 470, 474 (8th Cir.2005); Davis v. U.S. Bancorp, 383 F.3d 761, 768 (8th Cir.2004); Bell Lumber and Pole Co. v. United States Fire Ins. Co., 60 F.3d 437, 441 (8th Cir.1995). B. Legal Analysis. At issue in the parties’ respective dispositive Motions is the applicability of Title 38 U.S.C. § 4316(c) to the facts presented. Section 4316(c) temporarily alters the at-will status of employees, who return from military service, by providing as follows: A person who is reemployed by an employer under this chapter shall not be discharged from such employment, except for cause * * * within one year after the date of such reemployment, if the person’s period of service before the reemployment was more than 180 days. Title 38 U.S.C. § 1316(c); see, Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir.2006). The employer bears the burden of proving that it was reasonable to discharge the USERRA-cov-ered employee for his conduct, and that the employee had express or implied notice that the conduct would constitute cause for discharge. Id., citing 20 C.F.R. § 1002.218(a); Hillman v. Arkansas Highway & Transportation Dept., 39 F.3d 197, 200 (8th Cir.1994)(“The reasonableness of the discharge is determined by asking whether it was fair to discharge the veteran because of his conduct and whether the veteran had notice, express or fairly implied, that such conduct would be grounds for discharge.”), citing Carter v. United States, 407 F.2d 1238, 1244-45 (D.C.Cir.1968); see also, Jordan v. Jones, 84 F.3d 729, 732 (5th Cir.1996), cert. denied sub nom. Jordan v. Valdez, 519 U.S. 976, 117 S.Ct. 412, 136 L.Ed.2d 325 (1996). “Cause” is not defined in USER-RA, but “is to be liberally construed and strictly enforced for the benefit of those who left private life to serve their country.” Ortiz Molina v. Rimco, Inc., 2006 WL 2639297 at 7 (D.Puerto Rico, September 13, 2006), citing Alabama Power Co. v. Davis, 431 U.S. 581, 584-85, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977), and Duarte v. Agilent Techs., Inc., 366 F.Supp.2d 1039, 1046 (D.Colo.2005); see Warren v. Int'l Business Machines Corp., 358 F.Supp.2d 301, 313-14 (S.D.N.Y.2005)(“Like the legislation that preceded it, USERRA should be liberally construed for the benefit of those who serve their country.”), citing McGuire v. United Parcel Service, 152 F.3d 673, 676 (7th Cir.1998), and Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946). Here, the parties do not dispute that Johnson was given express notice, that he would be discharged if he failed to sign the Agreement, and that his employment was terminated, along with at least two (2) other employees who had failed to sign the Agreement, for that very reason. See, Defendant’s Memorandum in Support, supra at 1, 8-9; Plaintiffs Response Memorandum, supra at 6; Plaintiffs Memorandum in Support, Docket No. 26, at 3. Therefore, the only issue presented is whether there is a genuine factual dispute, that should be resolved by a Jury, concerning the reasonableness of MCS’s decision to terminate Johnson. See, Defendant’s Memorandum in Support, supra at 15; Plaintiffs Response Memorandum, at 5. In support of its Motion, MCS argues that it terminated Johnson “for cause,” as required by Section 4316(c), because its requirement, that Johnson sign the Agreement, was reasonable. According to MCS, in January of 2005, it was driven, by “serious financial hardships * * * in the previous twelve months,” to institute a global policy mandating key management and sales employees to sign the Agreement. See, Defendant’s Reply, Docket No. 18-1, at 4. Since customer relations were critical to MCS’s financial health, MCS claims that it decided to initiate the Agreement in order “to protect * * * customer relationships,” and “not allow someone like Mr. Johnson to leave the company * * * and take that customer relationship with [him].” Deposition of Tara O’Connor-La-Rose (“.LaRose Dep.”), supra at 27. In urging that corporate exigency was the justification for imposing the Agreement upon certain of its employees, MCS has submitted deposition testimony of several officers, and employees, which attest to the fact that, in the years leading up to January of 2005, MCS had laid off over 200 employees. See, Defendant’s Memorandum in Support, Docket No. 21, at 5; LaRose Dep., Docket No. 22-D, at 31-32. The parties agree that the number of workers, who were laid off, included (3) of the five (5) Sales Representatives who were in the division where Johnson worked. See, Johnson Dep., Docket No. 22-B, at 115; Defendant’s Memorandum in Support, Docket No. 21, at 5. Given this evidence, which is not substantively controverted, we can accept that MCS was undergoing a restructuring in the period prior to its termination of Johnson’s employment, but that acceptance does not commend Summary Judgment in MCS’s favor. There is support, of course, for the general proposition that, when an employer has demonstrated a genuine financial need, which prompts a reduction-in-force, the termination of an USERRA-protected employee can be “for cause.” See, Ferguson v. Walker, 397 F.Supp.2d 964, 974 (C.D.Ill.2005)(discharge of police officer due to “budgetary concerns” of employing village was “for cause”); Michell v. Continental Loss Adjusting Servs., Inc., 1994 WL 761962 at 7 (S.D.Ala., May 25, 1994)(granting Summary Judgment to employer on showing of financial necessity); Ruesterholtz v. Titeflex, Inc., 166 F.2d 335, 336 (3d Cir.1948)(argument that adverse economic conditions do not constitute cause rejected as being without merit); Kent v. Todd Houston Shipbuilding Corp., 72 F.Supp. 506, 509 (D.Tex.1947)(employer not required to do anything to have enough work to continue to employ plaintiff); Maloney v. Chicago, B & Q.R. Co., 72 F.Supp. 124, 125-26 (D.C.Mo.1947)(“There was no controversy but that the defendant was justified because of economic conditions in thus reducing its force at the yards mentioned.”). Accordingly, while Courts have been sympathetic to employers who are in genuine financial peril, notwithstanding the protections of USERRA, the simple fact is that Johnson’s employment was not terminated by a reduction-in-force — he had survived the prior layoffs. The issue, instead, resolves to whether MCS was reasonable in demanding Johnson, and others who were not protected by USERRA, to forfeit his future employment, either as an independent contractor, or as an employee of a competitor of MCS, for a period of one (1) year, in the very States in which Johnson had previously worked, without the exchange of any compensation for the forfeiture. MCS has presented evidence that the Agreement was perceived by its Board of Directors as important to its corporate interests, but they have not provided any evidence to support the reasonableness of extracting such an agreement, from Johnson, without consideration. Indeed, in sworn Answers to Interrogatories, Johnson avers that two other employees — John Bradley and Brian Steley — were “offered money to sign the non-compete agreement,” an attestation which, while oblique, has not been controverted. Docket No. 22, Exhibit 2, at p. 4. Moreover, there are conflict of law issues, which attend to the reasonableness of MCS’s demand for a noncompetition agreement on penalty of an employment termination. The conflict has not been meaningfully addressed by either party, and stands as yet another impediment to Summary Judgment. If, as MCS argued at the Hearing, Michigan law applies to the Agreement, then no consideration would appear to be necessary for, under the law of Michigan, “mere continuation of employment is sufficient consideration to support a non-compete agreement in an at-will employment setting.” QIS, Inc. v. Industrial Quality Control, Inc., 262 Mich.App. 592, 686 N.W.2d 788, 789 (2004), app. denied, 472 Mich. 872, 693 N.W.2d 814 (2005), citing Robert Half, International, Inc. v. Van Steenis, 784 F.Supp. 1263, 1273 (E.D.Mich.1991); see also, Lowry Computer Products, Inc. v. Head, 984 F.Supp. 1111, 1115 (E.D.Mich.1997). However, a different result follows under Minnesota law where noncompete agreements are disfavored and, to be enforceable, “must be ancillary to the initial employment agreement or, if not ancillary to the initial agreement, supported by independent consideration.” Hutchinson Technology Corp. v. Magnecomp Corp., 2006 WL 2061707 at 3 (D.Minn., July 17, 2006), citing National Recruiters, Inc. v. Cashman, 323 N.W.2d 736, 740 (Minn.1982); Sanborn Mfg. Co. v. Currie, 500 N.W.2d 161, 164 (Minn.Ct.App.1993). As a consequence, Minnesota Courts have held that, while “the mere continuation of employment can be used to uphold coercive agreements,” the non-compete agreement “must be bargained for and provide the employee with real advantages.” Freeman v. Duluth Clinic, Inc., 334 N.W.2d 626, 630 (Minn.1983), citing Davies & Davies Agency, Inc. v. Davies, 298 N.W.2d 127, 130-31 (Minn.1980). Unfortunately, both parties have ignored this issue as it has borne no briefing, and very little substantive argument. For its part, MCS has primarily relied on the fact that the Agreement included a choice of law provision which reflected that the “Agreement is governed by the law of the State of Michigan without regard to conflict of laws principles.” Docket No. 22, Exhibit 2, at p. 18 of 43. However, Johnson did not sign the Agreement, and it is not apparent from this Record whether any written contract existed, between MCS and Johnson, to which Michigan law would apply. For his part, Johnson simply argues that Minnesota law should apply since the majority of the duties he performed occurred in Minnesota, although he offers no legal support for that proposition. See, Plaintiffs Memorandum in Support, Docket No. 26, at 9 n. 2. This unsettled, and unbriefed, issue of law could critically impact upon the issues presented, both here and at Trial. Since MCS has not demonstrated, as a matter of law, that its termination of Johnson’s employment was reasonable, MCS is not entitled to Summary Judgment. As the Courts have recognized, “[b]eeause employers have the burden of proving that the discharge was reasonable, it is difficult for employers to achieve summary judgment on claims under § 4316(c).” Francis v. Booz, Allen & Hamilton, Inc., supra at 308, citing Alan’s of Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414, 1425 (11th Cir.1990)(“As is well established, in a summary judgment proceeding the party against whom the burden of proof falls at trial faces a challenge more difficult than otherwise.”). Here, as to MCS’s Motion, we find genuinely disputable issues of material fact, on the crucial question of “reasonableness,” which precludes an award of Summary Judgment. Dec. 1, 2006. As for Johnson’s Partial Summary Judgment Motion, MCS’s failure, on this Record, to demonstrate that its termination of Johnson was reasonable as a matter of law, does not absolve Johnson of his obligation to demonstrate that MCS’s conduct was unreasonable as a matter of law. As was the case with MCS’s conclu-sory averments, we are not persuaded by Johnson’s conclusory testimony, unsupported by other evidence, that the Agreement was “manufactured” “to get rid of [him].” Johnson Dep., supra at 85-87. We cannot say, on this abbreviated Record, that MCS’s decision to implement the Agreement did not afford some consideration to Johnson, which a Jury could find was adequate, in exchange for its extraction of a noncompetition provision. In short, neither party has satisfied its burden of demonstrating that no genuine issues of material fact exist, and accordingly, Summary Judgment on both Motions should be denied. NOW, THEREFORE, It is - RECOMMENDED: 1. That the Defendants’ Motion for Summary Judgment [Docket No. 19] be denied. 2. That the Plaintiffs Motion for Partial Summary Judgment [Docket No. 25] be denied. 3. That, to the extent that the Plaintiffs Complaint may be read to assert a claim under Title 38 U.S.C. § 4311, the claim be dismissed as having been abandoned. . Johnson does not object to Judge Erickson's conclusion that he has abandoned any claim under 38 U.S.C. § 4311, which prohibits discrimination in employment based on military service. . As Judge Erickson noted, this regulation took effect after Johnson’s claim accrued, but the parties do not dispute that it accurately summarizes the applicable law. . Johnson argues that, under Michigan law, an employer does not have “cause” to fire an employee for refusing to sign a non-competition agreement when the employee, like Johnson, is not employed at will. Johnson cites QIS, 686 N.W.2d at 789, in support of his argument. But QIS is easily distinguishable. In QIS, the employer attempted to force union employees to sign individual non-competition agreements. Id. The Michigan Court of Appeals held that the employees' refusal to sign was not "just cause” for termination because the employer could not require union employees to agree to obligations outside of the union contract. Id. at 790. Unlike QIS, no such circumstances barred MCS from seeking individual non-competition agreements with its employees. . In his Complaint, Johnson alleges that his "military service was, in whole or in part, a motivating factor for his termination." Complaint, at page 2, ¶ 14. As pertinent, Title 38 U.S.C. § 4311 protects service members from discrimination, upon a showing that the service member’s military service was a "motivating factor” for some discriminatory employment action. However, in his Response Memorandum, Docket No. 39, at pp. 3-5, and at the Hearing, Johnson clarified that he is alleging only that MCS violated Section 4316(c), and that he is not bringing a Section 4311 claim. Accordingly, Johnson is no longer claiming that his military service was a "motivating factor” in MCS's termination of his employment and, to the extent that his Complaint may be read to allege a claim under Section 4311, that claim should be dismissed. . In order to be protected under Section 4316(c), Johnson must show that he is qualified under Section 4312, which provides as follows: (a) Subject to subsections (b), (c), and (d) and to section 4304, any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if — ■ (1) the person * * * has given advance written or verbal notice of such service to such person's employer; (2) the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years; and (3)except as provided in subsection (f), the person reports to, or submits an application for reemployment to, such employer in accordance with the provisions of subsection (e) * * * Title 38 U.S.C. § 4312(a); see, Duarte v. Agi-lent Techs., Inc., 366 F.Supp.2d 1039, 1046 (D.Colo.2005). Both parties accept that Johnson has satisfied this burden, and that he is qualified under Section 4312(a), see, Answer, Docket No. 5, and therefore, we do not further address that threshold question. .Section 1002.248 provides as follows: The employee may be discharged for cause based either on conduct or, in some circumstances, because of the application of other legitimate nondiscriminatory reasons. (a) In a discharge action based on conduct, the employer bears the burden of proving that it is reasonable to discharge the employee for the conduct in question, and that he or she had notice, which was express or can be fairly implied, that the conduct would constitute cause for discharge. (b) If, based on the application of other legitimate nondiscriminatory reasons, the employee’s job position is eliminated, or the employee is placed on layoff status, either of these situations would constitute cause for purposes of USERRA. The employer bears the burden of proving that the employee's job would have been eliminated or that he or she would have been laid off. 70 Federal Register 75246, 75309 (December 19, 2005). Although this Section did not become effective until January 18, 2006, after Johnson’s claim accrued, its contents generally summarize the cases on point. Id. at 75246. We do not cite the Section as the applicable law, but as illustrative of the general rule of law as gleaned from a host of cases addressing the meaning of "cause,” as the term is employed in USERRA. . At the Hearing, MCS represented that it had employed four hundred (400), to four hundred and fifty (450) employees, prior to the onset of layoffs, but there is nothing of Record which attests to that fact. Rather, the evidence on the subject is conclusory in tone and content. See, LaRose Dep., Docket No. 22-D at 18 and 32 ("I do recall that as there was a number of layoffs occurring * * .”), and ("In 2005 * * a significant portion of people had left the company."). . In fact, whatever may have been the economic circumstance, prior to Johnson's return from Iraq, there is testimony from a ranking corporate officer that, as of the time that the Agreement was issued, the company, or at least the division in which Johnson was employed, "was growing, it had grown for several years, and was continuing to be successful.” Deposition of Bruce Stubbs, Docket No. 22, Exhibit 3, at p. 30 of 30.
7393323-12557	MEMORANDUM OPINION MYRON H. THOMPSON, District Judge. In this lawsuit, plaintiff J. Doyle Fuller seeks to recover on an insurance policy issued by defendant State Farm Fire & Casualty Company for losses suffered when his vessel sank. Fuller charges State Farm with breach of the insurance contract and asks the court to declare the rights of the parties under the policy. The court conducted a trial of the matter on July 12, 1989. For the reasons that follow, the court concludes that judgment is due in favor of Fuller and against State Farm. I. Fuller owns a recreational boat, a 1978 23-foot Black Fin with an in-board Ford motor. Fuller insured the boat “against all risk of physical loss or damage,” with some exceptions not here relevant, with State Farm. The boat sank while docked and moored in the Gulf of Mexico off the Florida coast in May 1988, leading to the dispute at hand. In the insurance policy between the parties, the boat is valued at $25,000, the maximum amount recoverable in case of loss. The fair market value of the boat prior to the time it sank was $10,000 to $12,000. The policy provides for coverage in case of loss under the following terms: 3. Loss Settlement. Covered losses are settled for not more than the smallest of the following amounts: A. the coverage limit shown in the Declarations; B. actual cash value at the time of loss. This means there may be deduction for depreciation; C. the cost of repair subject to depreciation; D. the cost of replacement. If the boat and motor described in the Declarations are a total loss, [State Farm] will pay [Fuller] the Coverage A limit shown in the Declarations for that boat and motor. This provision applies only if both the boat and motor are total losses resulting from one occurrence. After the boat sank, Fuller filed a proof of loss, and State Farm arranged for an estimate of the cost of repairs to the boat. The estimate, prepared by a local boat repair and sales shop, came to a total of $11,180. In his proof of loss, Fuller demanded the full coverage limit of $25,000, asserting that his boat was a total loss. Based on the repair estimate and its construction of the policy, however, State Farm tendered $9,253 to Fuller, representing the cost of repairs, less depreciation and Fuller’s deductible. Fuller rejected this tender and filed the suit at hand. II. At the outset, the court again finds that admiralty law applies in this case. Fuller v. State Farm Fire & Casualty Co., 721 F.Supp. 1219, 1221 (M.D.Ala.1989). Federal admiralty law applies in the usual instance to marine insurance contracts. Bender Shipbuilding & Repair Co. v. Brasileiro, 874 F.2d 1551, 1554 (11th Cir.1989); see also Angelina Casualty Co. v. Exxon Corp. U.S.A., 876 F.2d 40 (5th Cir.1989). If no federal admiralty rule exists on a disputed point, then state law rules apply to fill the gap. Wilburn Boat Co. v. Fireman’s Fund Insurance Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955); Kilpatrick Marine Piling v. Fireman’s Fund Insurance Co., 795 F.2d 940, 948 (11th Cir.1986); Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th Cir.1986). By the terms of the insurance policy at issue in this case, State Farm agrees to pay Fuller the full limit of his coverage, $25,000, if both the boat and the motor are total losses resulting from one occurrence. The insurance policy does not, however, define the term “total loss.” In an earlier order in this case, the court construed this policy term to mean either an “actual” total loss or a “constructive” total loss. Fuller v. State Farm Fire & Casualty Co., 721 F.Supp. at 1223-25. An actual total loss occurs when the vessel is lost or completely destroyed, that is, when it no longer exists in specie. See, e.g., Magnum Marine Corp., N. V. v. Great American Insurance Co., 835 F.2d 265, 267 n. 5 (11th Cir.1988). Under the “American rule,” a constructive total loss occurs when the cost to repair the vessel exceeds one-half its value as repaired. 6 J. Appleman & J. Appleman § 3706 at 16 (1972); G. Gilmore & C. Black, The Law of Admiralty § 2-14 at 125 (2d ed. 1975); 45 C.J.S. Insurance § 956(a) at 1150 (1946). This rule differs from the earlier “English rule,” that the vessel is a constructive total loss if the cost of repairs exceeds the full value of the vessel as repaired. See G. Gilmore & C. Black, supra, at 83-84. The court reiterates its holding that this policy, which uses “total loss” in a generic sense, covers constructive as well as actual total losses in the provision requiring State Farm to pay the policy limits. See 6 J. Appleman & J. Ap pieman, supra, § 3704 at 9-10 (“[i]nsu-rance on a ship against total loss only ... covers a constructive total loss”). State Farm contends that the court should use the vessel’s insured value, in this case $25,000, rather than its fair market value, in determining whether Fuller suffered a constructive total loss. Some courts have stated the constructive total loss rule to be whether the cost of repairs exceeds one-half the insured value of the boat. See Jeffcott v. Aetna Ins. Co., 129 F.2d 582, 586 (2d Cir.), cert. denied, 317 U.S. 663, 63 S.Ct. 64, 87 L.Ed. 533 (1942); Delta Supply Co. v. Liberty Mutual Ins. Co., 211 F.Supp. 429, 430 (S.D.Tex.1962); see also 6 J. Appleman & J. Appleman, supra, § 3706 at 23 n. 89 (citing cases). It appears to this court that these courts have either misstated, or declined to apply, the common law rule that the vessel’s fair market value as repaired is determinative of the constructive total loss issue. In respect to the mode of ascertaining the value of the ship, and, of course, whether she is injured to the amount of half her value, it has, upon the fullest consideration, been held by this court that the true basis of the valuation is the value of the ship at the time of the disaster; and that, if, after the damage [to the insured vessel] is or might be repaired, the ship is not, or would not be worth, at the place of the repairs, double the cost of the repairs, it is to be treated as a technical total loss. Bradlie v. Maryland Insurance Co., 37 U.S. (12 Pet.) 378, 398-99, 9 L.Ed. 1123, 1132 (1838) (Story, J.) (citing Patapsco Insurance Co. v. Southgate, 30 U.S. (5 Pet.) 604, 8 L.Ed. 243 (1831); 3 Kent’s Commentaries 321, 330 (n.d.)). See also Asphalt Int’l, Inc. v. Enterprise Shipping Corp., S.A., 667 F.2d 261, 265 (2d Cir.1981); G. Gilmore & C. Black, supra, at 84. The rule at base is a legal presumption that the insured can treat the vessel as a total loss if the end result after repair is not sufficiently greater than the cost of repair itself. The insurer has the right to claim the damaged vessel after payment to the insured under the policy; the insurer can thus recoup whatever it can through sale of the ship. Asphalt Int’l, 667 F.2d at 265; Lenfest v. Coldwell, 525 F.2d 717, 724 (2d Cir.1975). Essentially, the common law rule mandates a particular allocation of risk between insurer and insured. Asphalt Int’l, 667 F.2d at 265; Calmar S.S. Corp. v. Scott, 209 F.2d 852, 854 (2d Cir.1954) (L. Hand, J.). Of course, an insurer can contractually alter this allocation of risk by agreeing with the insured on a provision in the insurance policy to this effect. This is unobjectionable legally, and indeed, is now probably the norm in marine insurance contracts. G. Gilmore & C. Black, supra, at 84. However, the insurance contract between State Farm and Fuller contains no such provision regarding the value to be applied in constructive total loss calculations, and hence, the general rule applies. In its order denying summary judgment, this court found that the “clear and plain meaning” of the loss settlement provision of the policy required that both the boat and the motor, considered separately, had to be total losses before the company was obligated to pay Fuller the coverage limit. Fuller v. State Farm Fire & Casualty Co., 721 F.Supp. at 1221-22. At trial, the evidence adduced suggested that in the pleasure boating industry, in-board motors are commonly considered as part of the boat itself; that is, boat and motor are considered integrated units. Out-board motors, on the other hand, are not commonly considered to be integrated into the boat. Fuller’s boat contained an in-board motor. He and State Farm thus may have intended the boat and motor to be considered an integrated unit for insurance purposes when they entered into the policy at hand. The court finds that the same result obtains whether the boat and motor are considered separately or as a unit. If the boat and motor are considered as a unit, the evidence establishes that the fair market value of Fuller’s boat if it had been repaired when it sank would have been between $12,000 and $15,000. Taking the highest value admitted by the evidence, the cost of repairs to the boat and motor as a unit, $11,180, well exceeds one-half the fair market value of the boat and motor as repaired ($7,500). The boat is a total loss under this construction of the policy. If the boat and motor are considered separately, the cost of repair for the motor is $4,650, and the cost of repair of the boat is $6,530. State Farm concedes that the motor was a total loss under the policy. The court finds that the boat was as well. The evidence established that the fair market value of the boat, excluding the motor, as repaired, was at most $7,000. Again, the cost of repair to the boat clearly exceeds one-half the value of the boat as repaired, and hence the boat is a total loss under the policy. Thus, State Farm is obligated to pay Fuller the coverage limits on his boat under either construction of the policy at hand. State Farm also contends that Fuller failed to take steps as required by the policy to protect his vessel from further damage after it sank. Specifically, State Farm urges that Fuller had a duty under the policy to subject the motor in his boat to certain preservation techniques to minimize the damage sustained in the sinking. When metallic parts are submersed in salt water, they suffer corrosion and rust damage. An operation known as “flushing and pickling” can, in certain circumstances, reduce this damage to a motor. Fuller did not request the repair service in this case to perform this operation on his motor. The court finds that Fuller did not violate the provision of the policy which required him to protect the property from further damage or loss. The evidence at trial established that the motor in his boat was so damaged by the time mechanics reached it that the flushing and pickling operation would not have ameliorated the damage. Corrosion had caused the motor to “lock up” before any steps could reasonably be taken to prevent the damage. Fuller acted in compliance with his contractual duties and is entitled to the relief he seeks. An appropriate judgment will be entered. JUDGMENT In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court: (1) That judgment be and it is hereby entered in favor of plaintiff J. Doyle Fuller and against defendant State Farm Fire & Casualty Company; (2) That it be and it is hereby DECLARED that plaintiff J. Doyle Fuller's boat is a total loss under the terms of the contract of insurance between the parties; and (3) That it be and it is hereby DECLARED that defendant State Farm Fire & Casualty Company is obligated to pay plaintiff Fuller the coverage limits in accordance with that contract of insurance. It is further ORDERED that costs be and they are hereby taxed against defendant State Farm Fire & Casualty Company, for which execution may issue. . The court granted summary judgment in favor of State Farm on Fuller’s bad faith claim. Fuller v. State Farm Fire & Casualty Co., 721 F.Supp. 1219, 1226 (M.D.Ala.1989). . A standard characterization of a marine insurance policy is: “The essence of the contractual position in which [the] parties stand is simple: the assured agrees to pay a premium, and the assurer agrees that, if certain losses or damage occur to certain interests of the assured, at risk in a marine venture, the assurer will indemnify the assured.” G. Gilmore & C. Black, The Law of Admiralty § 2-3 at 56 (2d ed. 1975). On the difficulties in discerning the appropriate choice of law to apply in marine insurance cases, see H. Baer, Admiralty Law of the Supreme Court 373-94 (1979). . As the court noted in a previous order, Alabama follows the standard rule set out in Bradlie. See Fulton Insurance Co. v. Goodman, 32 Ala. 108, 129 (1858).
3839291-28142	ORDER GEORGE KENDALL SHARP, District Judge. This ease is before the Court upon plaintiffs’ motion for preliminary injunction. Plaintiffs have settled with defendants Parkmount Properties, Inc., d/b/a Roadway Inn, and Colonial Motor, Inc., d/b/a Colonial Motor Lodge, and the Court granted a motion for summary judgment by defendant Gold Key Investment Fund, Ltd., d/b/a Gold Key Inn. The remaining defendants in this action are: Floken, Ltd., d/b/a Howard Johnson’s Motor Lodge (Flo-ken); Center City Corporation of Orlando, d/b/a Howard Johnson’s Motor Lodge (Center City); Gainesville P-H Properties, Inc., d/b/a Days Inn Orlando and Days Inn Kissimmee (Gainesville P-H Properties); Frontier Motel, Inc., d/b/a Best WesternKissimmee Frontier, a/k/a Ramada Inn East (Frontier); Kon-Tiki Investors, Ltd., d/b/a Kon-Tiki Village Resort Hotel (Kon-Tiki); Caravey Inns of Florida, Inc., d/b/a Caravey Inn (Caravey); Gala Amusements, Inc., d/b/a Gala Vista Motor Inn (Gala Vista); Gulf South Resources, Inc., d/b/a Econo Lodge Main Gate East (Gulf South Resources); C.W. Clayton and W.M. Clayton, d/b/a Diplomat Motor Inn (Diplomat); Friendship Development Corporation, d/b/a Tropicana Motel (Tropicana); Mohan S. Chopra, Rajinora P. Gupta, Mehemora P. Gupta, Pabitor Singh, and Daljeet Singh, d/b/a Travelodge Main Gate East (Travelodge); Southern Motel Management Company, Inc., d/b/a Southern Sun Inn (Southern Sun); and Altamonte Lodges, Inc., d/b/a Ramada Inn Central (Altamonte Lodges). In this action, plaintiffs seek damages, preliminary and permanent injunctions, and further relief as necessary or proper for alleged violations of § 605 of the Federal Communications Act of 1934, 47 U.S.C.A. § 605, the Copyright Act of 1976, 17 U.S. C.A. §§ 101-810, the Lanham Act, 15 U.S. C.A. §§ 1051-1125, and Florida statutory and common law. Plaintiffs seek relief for defendants’ unauthorized and willful interception, reception, exhibition, and public performance of copyrighted and otherwise protected audiovisual programming through the use of satellite reception dish antennas at their hotels and/or motels. Pursuant to Federal Rule of Civil Procedure 52, the Court enters the following findings of fact and conclusions of law on plaintiffs’ motion for preliminary injunction. FINDINGS OF FACT Plaintiffs have filed a verified complaint and affidavits by a corporate vice-president and an investigator. This evidence is supplemented with discovery filed by several defendants. The Court has determined the facts based upon this information. American Television and Communications Corporation (ATC), distributes subscription television, and owns and operates cable television systems in, inter alia, Orange and Osceola counties. ATC does business as Orange-Seminole Cablevision, Kissimmee Cablevision, and Cablevision of Central Florida. ATC contracts with basic programming services who supply programming, the copyrights of which are owned by basic service suppliers or their program originators. Through various contractual arrangements, ATC has acquired the rights to exhibit, perform, and retransmit such programming to its customers. ATC pays the originators of the programming for such exhibition and performance rights, and pays copyright fees to the Copyright Royalty Tribunal and licensing fees to the satellite programmers. ATC is authorized to receive programming services directly by satellite antennas, and to distribute such television programming to customers through its local cable distribution system. ATC retransmits the programming services which it has acquired to subscribers by a coaxial cable and related equipment which it owns and maintains. ATC has expended substantial sums for marketing, promoting, and servicing its cable television systems- in Orange and Osceola Counties. The monthly charge paid by ATC’s customers for the basic and premium programming is the primary source of revenue for ATC’s cable systems and services. ATC provides a basic cable service to subscribers for a monthly fee. The basic cable service includes local broadcast stations, television programming imported from other markets, and special programming services. ATC also offers premium programming, including Home Box Office (HBO) and Cinemax, to its subscribers at an additional charge. This premium programming consists primarily of feature films, sports events, and special entertainment events, the copyrights to which are owned by entertainment programming service companies such as HBO or their programming suppliers. HBO produces private, commercial-free pay television entertainment services, known as “Home Box Office” and “Cine-max.” Home Box Office and Cinemax feature movies, special events, and sports programming, some of which are copyrighted under the copyright laws of the United States. ■ Entertainment and Sports Programming Network, Inc. (ESPN), produces private, television entertainment services which primarily feature amateur and professional sports events. ESPN programming is copyrighted under the copyright laws of the United States. HBO and ESPN acquire distribution and public display rights for their programming from authors, producers, event organizers, or distributors, and distribute such works in an entertainment programming service. HBO and ESPN program services are delivered in the United States by means of satellite transmissions or “feeds.” HBO and ESPN contract with subscription television operators, such as ATC, to receive their satellite feeds and to distribute their programming services to the local operator’s customers by means of cable television, master antenna, direct satellite reception, or microwave distribution service. The customers of these services receive the signal by means of satellite antenna dishes or “earth stations.” Cable system operators pay a fee to HBO for each customer who subscribes to the Home Box Office and Cinemax services, and pay a subscription fee for the right to include ESPN in their cable, master antenna, and microwave transmissions. ESPN and its affiliated operators share commercial announcement time integrated into ESPN’s network feeds. HBO has registered its trademark and trade name in order to identify and to distinguish its products from those of competitors. Southern Satellite Systems, Inc. (SSS), is a resale communications common carrier licensed by the Federal Communications Commission (FCC) to lease channels of communication to others. SSS transmits via satellite the signal of WTBS, an independent television broadcast station in Atlanta, Georgia, which broadcasts sports, movies, variety programs, and news full time. The FCC has authorized SSS to establish and to operate one leased channel of communications via RCA Americom’s SAT-COM satellite to specified locations through the contiguous forty-eight states, Alaska, Hawaii, Puerto Rico, and the United States Virgin Islands for the point-to-point multipoint distribution (MDS) of television and associated audio signals of independent broadcast station WTBS to various customers. SSS retransmits the television signal of WTBS to local cable operators, including ATC, which have contracted for its carrier signal services and which pay fees for the right to receive the WTBS signal via satellite. The entertainment programming services offered by HBO, ESPN, SSS and ATC, via its cable systems, provide their customers with services different from those provided by “free” standard broadcast television. The signals transmitted via satellite to ATC, other cable system operators, and other fee-paying distributors cannot be received in their transmitted form by conventional television sets and antennas. The satellite dish antennas or earth stations employed by defendants to intercept the signals are not receivers of the kind commonly used in private homes. However, the television programming transmitted by plaintiffs HBO, ESPN, and SSS and intended for ATC and other fee-paying distributors can be received by anyone with the proper equipment. Although plaintiffs vigorously promote their services and seek to maximize the number of fee-paying customers, the signals they transmit and receive are intended for use only by paying customers, and are not intended for the benefit of or use by the general public. All of the defendants operate hotels or motels in Orange or Osceola counties, and have purchased and installed satellite antennas and retransmission equipment. Defendants have used this equipment to receive satellite signals intended for fee-paying customers of HBO, ESPN, SSS, and other subscription television services. Defendants retransmit the programs to patrons’ rooms. Various defendants have advertised the availability of these subscrip tion television services in order to attract customers to their hotels/motels. With the exception of Kon-Tiki, defendants’ satellite reception and retransmissions were without the knowledge, consent, or license of plaintiffs. Defendant Kon-Tiki has produced affidavits and contracts which establish that it is authorized to receive WTBS, ESPN, CNN, The Movie Channel, and the USA Network. Therefore, ATC and SSS appear to concede their claims against Kon-Tiki. However, Kon-Tiki has admitted that on several occasions Home Box Office programs were available on the Kon-Tiki cable television system despite its lack of authorization to show these programs. The Kon-Tiki management is unable to explain this inadvertent display of Home Box Office on its cable system. However, on one occasion an employee manipulated the Kon-Tiki television system to receive the Home Box Office programming without the knowledge or authorization of the management. Hereinafter collective reference to defendants does not include Kon-Tiki. Gala Vista also has produced evidence establishing that it is authorized to receive the WTBS signal transmitted by SSS. All plaintiffs have asserted some claim against each defendant, with the exception that HBO and SSS have not asserted any claims against Gainesville P-H Properties and Kon-Tiki, respectively. Most of the defendants have been notified by ATC that their activities are unauthorized and unlawful. Nevertheless, these defendants have persisted in their conduct. The affidavit of plaintiffs' investigator, Robert L. Knight, and the discovery filed by defendants establish that the following programming services and the logo for those services have been displayed at the specified motels/hotels on at least one occasion: Floken: Home Box Office, Cinemax, Cable News Network (CNN) Center City: Home Box Office Gainesville P-H Properties: ESPN, Cine-max, CNN, The Movie Channel, The Disney Channel, Hometeam Sportswire, and Nashville Network Frontier: ESPN, Cinemax, CNN Kon-Tiki: ESPN, Home Box Office, CNN, The Movie Channel Caravey Inns: ESPN and Cinemax Gala Vista: The Movie Channel Gulf South Resources: Home Box Office, Cinemax, The Movie Channel, ESPN Diplomat: Cinemax, Home Box Office Tropicana: Cinemax, ESPN, The Movie Channel Travelodge: Home Box Office, ESPN, Showtime Southern Sun: The Movie Channel, Hometeam Sportswire, The Disney Channel Altamonte Lodges: Cinemax, MTV Knight observed that defendants Center City and Gulf South Resources advertised various programming services, and that satellite dishes were visible at each hotei/motel. Defendants’ unauthorized reception, use, and retransmission has deprived plaintiffs of the value of their business investment, business opportunities, reputation, and goodwill. In addition, plaintiffs have lost the value, benefits, and profits derived from cable retransmission to defendants and their patrons. Each time the defendants intercept, use, or retransmit plaintiffs’ programming, plaintiffs irretrievably lose a customer for such retransmission and the revenues derived from retransmission. ATC has attempted to sell its services to most of the defendants, and they have refused to purchase the services which they receive without payment. Defendants’ conduct also has had an impact upon ATC’s ability to market its programming services to other hotels/motels in the franchise area. HBO and ESPN have lost a portion of their investments, and they have suffered a concomitant reduction in revenue for the future acquisition, production, and distribution of audiovisual works. Additionally, SSS faces the loss of revenues for the transmission of the WTBS signal. Plaintiffs are unable to detect or determine when individuals in defendants’ establishments are receiving the programming services without payment by the defendants, how long or often such services are received, or how long such unpaid interception will continue. Furthermore, each defendant is capable of receiving other services merely by repositioning their earth stations. Plaintiffs have no practical method of terminating or preventing the interception and retransmission of the programming by defendants. CONCLUSIONS OF LAW The Court has jurisdiction ' over plaintiffs’ Communications Act claim under 28 U.S.C. § 1331, and over the federal copyright, trademark and unfair competition claims under 28 U.S.C. § 1338. Federal jurisdiction over the state law claims is proper because these claims share a common nucleus of operative facts with the federal issues. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). In order to prevail on a motion for preliminary injunction, the moving party must establish the following four prerequisites: 1. A substantial likelihood that the moving party ultimately will prevail on the merits of the claim. 2. Irreparable injury unless the injunction is issued. 3. The threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing parties. 4. The injunction would not be adverse to the public interest. See, e.g., Callaway v. Block, 763 F.2d 1283, 1287 (11th Cir.1985); Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir.1983); Productos Carnic, S.A. v. Central American Beef and Seafood Trading Co., 621 F.2d 683 (5th Cir.1980). A. Likelihood of Success on the Merits 1. Violation of 47 U.S.C.A. § 605 In assessing plaintiffs’ likelihood of success on the merits, the Court first evaluates the § 605 claim. Section 605 was amended substantially by the Comprehensive Cable Telecommunications Act of 1984, P.L. No. 98-549, 98 Stat. 2802 (Cable Act of 1984), which became effective December 30, 1984. Plaintiffs’ § 605 claims will be analyzed under both the version of § 605 in effect at the time of suit (the former § 605) and the present version of the section (the amended § 605). Although the Cable Act of 1984 redesignates § 605 of the Federal Communications Act of 1934 as § 705, the amendments are codified at 47 U.S.C.A. § 605. Numerous courts have determined that a private right of action may be implied under the former § 605 for aggrieved parties suffering injuries arising out of a violation of that section. See, e.g., National Subscription Television v. S & H TV, 644 F.2d 820, 821 n. 1 (9th Cir.1981); Chartwell Communications Group v. Westbrook, 637 F.2d 459, 466 (6th Cir.1980); Hoosier Home Theater, Inc. v. Adkins, 595 F.Supp. 389, 395 (S.D.Ind.1984); Ciminelli v. Cablevision, 583 F.Supp. 158, 160-61 (E.D.N.Y.1984); Cox Cable Cleveland Area, Inc. v. King, 582 F.Supp. 376, 380 (N.D.Ohio 1983). At the time this action was filed, section 605 provided in pertinent part: No person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception ... No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such communication (or any part thereof) or use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto: This section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication which is transmitted by any station for the use of the general public, which relates to ships, aircraft, vehicles or persons in distress, or which is transmitted by an amateur radio station operator or by a citizens band radio operator. 47 U.S.C. § 605 (1982). The protection afforded to “radio communications” under the former § 605 has been extended to television communications, Chartwell, 637 F.2d at 462, including television signal transmissions via satellite. See, e.g., California Satellite Systems v. Seimon, 767 F.2d 1364 (9th Cir.1985); National Football League v. The Alley, Inc., 624 F.Supp. 6 (Order Containing Findings of Fact and Conclusions of Law, 1983); American Television and Communications Corporation v. The Alley, Inc., Case No. 81-969-CIV-EBD (Order Aug. 24, 1981); see also In the Matter of Regulation of Domestic Receive-Only Satellite Earth Stations, 74 F.C.C.2d 205, 216 (1979). Furthermore, despite early case law to the contrary, it is clear under current authority that plaintiffs’ transmissions and retransmissions do not fall within the former § 605 proviso excepting broadcasts for the use of the general public from the protection afforded by that section. See, e.g., S & H TV, 644 F.2d at 824; National Football League v. Bruno’s, 621 F.Supp. 880 (E.D.Mo.1985); Hoosier Home Theater, 595 F.Supp. at 395; American Television & Communications Corporation v. Western Techtronics, 529 F.Supp. 617, 620 (D.Colo.1982). Contra Orth-O-Vision, Inc. v. Home Box Office, 474 F.Supp. 672, 681-82 (S.D.N.Y.1979). “[T]he crucial factor in determining whether the programming is broadcasting for the use of the general public is not whether the content of the program has mass appeal or mass availability but rather, whether it was intended for the use of the general public.” Movie Systems, Inc. v. Heller, 710 F.2d 492, 494 (9th Cir.1983) (emphasis in original). As the Sixth Circuit indicated: We think there is an important distinction between making a service available to the general public and intending a program for the use of the general public. The whole point of STV [subscription television] is to provide the service to as many members of the public as are interested. If the services could not be widely distributed there would be no business. However, the dual nature of STV is that while it may be available to the general public, it is intended for the exclusive use of paying subscribers. Available and use are separate concepts. Chartwell, 637 F.2d at 465. By definition, subscription television is intended only for those who purchase it. Furthermore, special equipment is required to intercept the signals. Thus, the Court concludes that the programming services transmitted by plaintiffs ESPN, HBO, and SSS are intended only for fee-paying customers such as ATC. In turn, the ATC cable retransmissions are intended solely for its subscribers. Having determined that plaintiffs’ services are entitled to the protection of the former § 605, the next issue is whether or not defendants have violated the former § 605. On this issue, the record is clear. With the exception of Kon-Tiki, defendants have deliberately intercepted transmissions without authorization, and have divulged or published the intercepted programs without authorization for their own benefit and the benefit of their guests. This conduct violates the express language of the former § 605. In the Cable Act of 1984, Congress amended the Federal Communications Act of 1934 in an attempt to deal with the problems caused by the newly developed satellite cable technology. The new Cable Act of 1984 preserves the former § 605 virtually intact as subsection (a), and ex plicitly provides for a private right of action in subsection (d). Preliminary injunctive relief such as defendants seek is available in addition to damages. The amended section confirms the case law under the prior section. H.R.Rep. No. 934, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Ad.News 4655, 4746. However, Congress created an exception from the prohibition of amended § 605(a) under specified circumstances for “the interception or receipt by any individual, or the assisting (including the manufacture or sale) of such interception or receipt, of any satellite cable programming for private viewing.” 47 U.S.C.A. § 605(b). This exception, however, is little solace to defendants. Subsection (e)(4) of amended § 605 defines private viewing as “the viewing for private use in an individual’s dwelling unit by means of equipment, owned or operated by such individual, capable of receiving satellite cable programming directly from a satellite.” The “private viewing” exception was created to protect individual owners of backyard earth stations and their suppliers. Defendants’ use of satellite dishes to provide satellite cable programming for their hotel/motel guests without payment of subscription fees, and for their own commercial advantage does not fall within the “private viewing” exception. This conclusion is mandated not only by the language of the statute, but also by the legislative history. According to the legislative history, the drafters of the bill neither contemplated nor intended that the “private viewing” exception include private cable systems or “display of satellite cable programming in the public area of an apartment building, condominium, or housing complex, or in taverns, restaurants, or fraternal halls.” 1984 U.S. Code Cong. & Ad.News at 4749-50. Thus, defendants conduct remains illegal under the newly enacted legislation. 2. ATC’s Standing Although the Court concludes that defendants’ conduct violated both the former and amended versions of § 605, the Court also must determine whether or not ATC has standing under § 605 before concluding that plaintiffs have shown a substantial likelihood of success on their § 605 claims. A number of the defendants have argued that ATC lacks standing to challenge defendants’ violations of the former § 605. Defendants emphasized that the cases relied upon by ATC were brought by plaintiffs who were broadcasters, originators, or transmitters of programs or signals. For example, a number of cases have held defendants liable for manufacturing, distributing, selling, or using decoding or converting equipment to intercept subscription television programming. See, e.g., ON/TV of Chicago v. Julien, 763 F.2d 839 (7th Cir.1985); S & H TV, 644 F.2d at 821; Chartwell, 637 F.2d at 460-61; Cox Cable, 582 F.Supp. at 378. Similarly, courts have found violations of the former and the amended § 605 for manufacturing, distributing, selling, or using electronic decoding equipment such as microwave antennae and down-converters to intercept subscription television signals transmitted via MDS. See, e.g., California Satellite Systems, 767 F.2d at 1365; Heller, 710 F.2d at 493; Hoosier Home Theater, 595 F.Supp. at 392-93; Western Techtronics, 529 F.Supp. at 618-19. In this case, defendants have not intercepted or received any satellite signal or cable transmission by ATC. Instead, defendants have intercepted satellite signals transmitted by program originators or transmitters, such as HBO, ESPN, and SSS, which were intended for authorized distributors, such as ATC. ATC has contracted for the right to receive these signals, and, unlike defendants, has paid for that right and the concomitant right to retransmit programming to subscribers in the Orange-O sceola county distribution area. Only two cases have involved parties in a factual posture comparable to that of ATC in this case. In Entertainment and Sports Programming Network, Inc. v. Edinburg Community Hotel, Inc., 623 F.Supp. 647 (Final Judgment for Permanent Injunction and Damages, 1985), a district court held that a local cable television distributor had standing under both ver sions of § 605 to sue a motel which used a satellite dish to intercept signals intended for the cable company. Id. at 651. However, the parties in that case stipulated to the operative facts and agreed to entry of the order and judgment. Thus, the Edinburg case is of limited persuasive weight. On the other hand, the court in Air Capital Cablevision, Inc. v. Starlink Communications Group, Inc., 601 F.Supp. 1568, 1570-72 (D.Kansas 1985), adhered to a literal interpretation of the language in the former § 605. The Starlink court determined that the plaintiff cable company had only a collateral right to receive the satellite signals, and concluded: “The cable company simply has no standing to claim violations under former § 605 of the Communications Act because the users of the earth station were not intercepting a transmission originated by or retransmitted by the cable company.” Id. at 1572; see also Bruno’s, 621 F.Supp. at 890 (dictum). Although ATC’s role as intended, authorized, recipient of the intercepted signals admittedly does not fall within the literal language of either the former or the amended § 605, the Court concludes that ATC has standing to seek redress for violations of § 605. In order to establish standing, a party must allege an injury to itself which “is likely to be redressed by a favorable decision.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Watts v. Boyd Properties, Inc., 758 F.2d 1482, 1484 (11th Cir.1985). The standing inquiry “involves both constitutional limitations on federal court jurisdiction and prudential limitations.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The constitutional standing requirement is derived from the Art. Ill, which limits the jurisdiction of federal courts to “cases or controversies.” See, e.g., Lynch v. Baxley, 744 F.2d 1452, 1455 (11th Cir.1984). In order to meet the constitutional standing requirement, a party must allege “a personal stake in the outcome of the controversy.” Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)); RITE-Research Improves the Environment, Inc. v. Costle, 650 F.2d 1312, 1319 (5th Cir.1981). A plaintiff may show a personal stake in a controversy by showing injury. Lynch v. Baxley, 744 F.2d at 1456. “Art. Ill requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607-08, 60 L.Ed.2d 66 (1979) (citations omitted)); Bank Stationers Ass’n v. Board of Governors of the Federal Reserve System, 704 F.2d 1233, 1235 (11th Cir.1983). This “injury in fact” may be '“economic or otherwise.” Valley Forge, 454 U.S. at 486, 102 S.Ct. at 766; Ass’n of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). The injury or threatened injury must be “real and immediate,” not “conjectural” or “hypothetical.” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974); Lynch v. Baxley, 744 F.2d at 1456.
12266661-32024	OPINION PAEZ, Circuit Judge: Plaintiff Mavrix; Photographs (“Mav-rix”) appeals the district court’s summary judgment in favor of Defendant LiveJour-nal. Mavrix sued LiveJournal for posting twenty of its copyrighted photographs online. The district court held that the Digital Millennium Copyright Act’s (“DMCA”) § 512(c) safe harbor protected LiveJournal from liability because Mavrix’s photographs were stored at the direction of the user. 17 U.S.C. § 512(c). To be eligible at the threshold for the § 512(c) safe harbor, LiveJournal must show that the photographs were stored at the direction of the user. Although users submitted Mavrix’s photographs to LiveJournal, LiveJournal posted the pho tographs after a team of volunteer moderators led by a LiveJournal employee reviewed and approved them. Whether these photographs were truly stored at the direction of the user, or instead whether LiveJournal is responsible for the photographs, depends on whether the acts of the moderators can be attributed to LiveJournal. The issue we must decide is whether the common law of agency applies to LiveJournal’s safe harbor defense. The district court ruled that the common law of agency does not apply to this analysis. We disagree and conclude that it does. As there are genuine factual disputes regarding whether the moderators are LiveJournal’s agents, we reverse the district court’s summary judgment and remand for trial. Because the district court ruled on the remaining elements of the safe harbor, we also proceed to discuss those elements in order to provide guidance to the district court and parties on remand. Finally, we vacate the district court’s order denying discovery of the moderators’ identities because the agency determination may affect this analysis. I. LiveJournal LiveJournal is a social media platform. Among other services, it allows users to create and run thematic “communities” in which they post and comment on content related to the theme. LiveJournal communities can create their own rules for submitting and commenting on posts. LiveJournal set up three types of unpaid administrator roles to run its communities. “Moderators” review posts submitted by users to ensure compliance with the rules. “Maintainers” review and delete posts and have the authority to remove moderators and users from the community. Each community also has one “owner” who has the authority of a maintainer, but can also remove maintainers. LiveJournal protects against copyright infringement in its communities through various mechanisms. LiveJournal follows the formal notice and takedown procedures outlined in the DMCA by designating an agent and form to report infringement, and by promptly removing infringing posts and prohibiting repeat abusers from the community. 17 U.S.C. § 512(c)(1)(C). LiveJournal’s Terms of Service instructs users not to “[u]pload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret,' copyright or other proprietary rights.” Oh No They Didn’t! (“ONTD”) ONTD is a popular LiveJournal community which features up-to-date celebrity news. Users submit posts containing photographs, videos, links, and gossip about celebrities’ lives. ONTD moderators review and publicly post some of the submissions. Other users engage in conversations about the celebrity news in the comments section of each post. For example, one of the ONTD posts at issue contained photographs that Mavrix had taken which appeared to show that super-celebrity Bey-oncé was pregnant. Users speculated in the comments section of that post that Beyoncé was indeed pregnant. Like other LiveJournal communities, ONTD created rules for submitting and commenting on posts. ONTD’s rules pertain to both potential copyright infringement and substantive guidance for users. For example, one rule, instructs users to “[i]nclude the article and picture(s) in your post, do not simply refer us off to another site for the goods.” Another rule provides “Keep 'it recent. We don’t need a post in 2010 about Britney Spears shaving her head.” ONTD’s rules also include a list of sources from which users should not copy material. The sources on the list have informally requested that ONTD stop posting infringing material. ONTD has also automatically blocked all material from one source that sent ONTD a cease and desist letter. ONTD has nine moderators, six maintainers, and one owner. ONTD users submit proposed posts containing celebrity news to an internal queue. Moderators review the submissions and publicly post approximately one-third of them. Moderators review for substance, approving only those submissions relevant to new and exciting celebrity news. Moderators also review for copyright infringement, pornography, and harassment. When ONTD was created, like other LiveJournal communities, it was operated exclusively by volunteer moderators. Li-veJournal was not involved in the day-today operation of the site. ONTD, however, grew in popularity to 52 million page views per month in 2010 and attracted LiveJour-nal’s attention. By a significant margin, ONTD is LiveJournal’s most popular com-ihunity and is the only community with a “household name.” In 2010, LiveJournal sought to exercise more control over ONTD so that it could generate advertising revenue from the popular community. LiveJournal hired a then active moderator, Brendan Delzer, to serve as the community’s full time “primary leader.” By hiring Delzer, LiveJournal intended to “take over” ONTD, grow the site, and run ads on it. As the “primary leader,” Delzer instructs ONTD moderators on the content they should approve and selects and removes moderators on the basis of their performance. Delzer also continues to perform moderator work, reviewing and approving posts alongside the other moderators whom he oversees. While Delzer is paid and expected to work full timé, the other moderators are “free to leave and go and volunteer’ their time- in any way they see fit.” In his deposition, Mark Ferrell, the General Manager of LiveJournal’s U.S. office, explained that Delzer “acts in some capacities as a sort of head maintainer” and serves in an “elevated status” to the other modferators. Delzer, on the other hand, testified at his deposition that he does not serve as head moderator and that ONTD has no “primary leader.” Mavrix Mavrix is a celebrity photography company specializing in candid photographs of celebrities in tropical locations. The company sells ' its photographs to celebrity magazines. According to Mavrix, infringement of its photographs is particularly devastáting to its business model. Since Mavrix’s photographs break celebrity news, such as the pregnancy of Beyoneé, infringing posts on sites like ONTD pre vent Mavrix from profiting from the sale of the photographs to celebrity magazines. Procedural History Mavrix filed an action for damages and injunctive relief against LiveJournal alleging copyright infringement on the basis of twenty Mavrix photographs posted on ONTD. ONTD posted the photographs in seven separate posts between 2010 and 2014. Some of these photographs contained either a generic watermark or a specific watermark featuring Mavrix’s website “Mavrixonline.com.” To the best of his recollection, Delzer did not personally. approve the seven posts. LiveJournal has no technological means of determining which moderator approved any given post. Mav-rix did not utilize LiveJoumal’s notice and takedown procedure to notify LiveJournal of the infringements. When Mavrix filed this lawsuit, LiveJournal removed the posts. During discovery, Mavrix filed two motions to compel responses to its interrogatories seeking the identity of the ONTD moderators. The magistrate judge denied the first motion, finding that Mavrix had not met and conferred with LiveJournal in good faith. The magistrate judge denied the second motion to compel because Mav-rix failed to notify the anonymous monitors of the pending motion. Mavrix moved the district court for review of the magistrate judge’s order, which the district court denied on the basis of the moderators’ First Amendment right to anonymous internet speech. LiveJournal moved for summary judgment on the basis of the § 512(c) safe harbor. The district court granted LiveJ-ournal’s motion and denied Mavrix’s cross-motion for partial summary judgment, concluding that the § 512(c) safe harbor shielded LiveJournal from- .liability for copyright infringement. Mavrix timely appealed. II. We review de novo a district court’s grant of summary judgment. Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014) (citing Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 954 (9th Cir.2013)). We must determine, “viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law.” Id. The district court’s denial of a motion to reconsider a magistrate judge’s pretrial discovery order under Federal Rule of Civil Procedure 72(a) will be reversed only if “clearly erroneous or contrary to law.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004) (citing Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002)). III. A. The DMCA strikes a balance between the interests of “copyright holders in benefitting from their labor; ... entrepreneurs in having the latitude to invent new technologies without fear of being held liable if their innovations are used by others in unintended infringing ways; and those of the public iii having access [to] both .... ” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1037 (9th Cir. 2013). The DMCA balances these interests by requiring , service providers to take down infringing materials when copyright holders notify them of the infringement and by limiting service providers’ liability for unintentional infringement through several safe harbors. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). The DMCA established four safe harbors to “provide protection from liability for: (1) transitory digital network communications; (2) system caching; (3) information residing on systems or networks at the direction of users; and (4) information location tools.” Id. at 1076-77 (citing 17 U.S.C. § 512(a)-(d)). LiveJournal claimed protection from damages under the § 512(c) safe harbor for “infringement of copyright by reason of the storage [of material] at the direction of a user.” 17 U.S.C. § 512(c)(1). To be eligible at the threshold for the § 512(c) safe harbor, a service provider must show that the infringing material was stored “at the direction of the user.” 17 U.S.C. § 512(c)(1). If it meets that threshold requirement, the service provider must then show that (1) it lacked actual or red flag knowledge of the infringing material; and (2) it did not receive a “financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.” Id. Because the § 512(c) safe harbor is an affirmative defense, LiveJournal must establish “beyond controversy every essential element,” and failure to do so will render LiveJournal ineligible for the § 512(c) safe harbor’s protection. See S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003); see also UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1013 (9th Cir. 2013). B. 1. LiveJournal must make a threshold showing that Mavrix’s photographs were stored at the direction of the user. “Storage,” in this context, has a unique meaning. Congress explained that “[e]xamples of such storage include providing server space for a user’s web site, for a chatroom, or other forum in which material may be posted at the direction of users.” S. Rep. 105-190, at 43 (1998). We have held that storage “encompasses the access-facilitating processes” in addition to storage itself. Shelter Capital, 718 F.3d at 1016 (rejecting a claim that the safe harbor addresses mere storage lockers). We reasoned that rather than requiring “that the infringing conduct be storage,” the statutory language allows for infringement “by reason of the storage at the direction of a user.” Id. (emphasis added). The district court held that although moderators screened and publicly posted all of the ONTD posts, the posts were at the direction of the user. The district court focused on the users’ submission of infringing photographs to LiveJournal rather than LiveJoumal’s screening and public posting of the photographs. A different safe harbor, § 512(a), protects service providers from liability for the passive role they play when users submit infringing material to them. 17 U.S.C. § 512(a); see, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1116 (9th Cir. 2007) (describing infringing material passively and temporarily placed on a computer server as within the § 512(a) safe harbor). The § 512(c) safe harbor focuses on the service provider’s role in making material stored by a user publicly accessible on its site. See Shelter Capital, 718 F.3d at 1018; S. Rep. No. 105-190, at 43-44 (1998). Contrary to the district court’s view, public accessibility is the critical inquiry. In the context of this case, that inquiry turns on the role of the moderators in screening and posting users’ submissions and whether their acts may be attributed to LiveJ-ournal. 2. Mavrix, relying on the common law of agency, argues that the moderators are LiveJournal’s agents, making LiveJournal hable for the moderators’ acts. The district court erred in rejecting this argument. “[Statutes are presumed not to disturb the common law, ‘unless the language of a statute [isj clear and explicit for this purpose.’ ” State Eng’r of Nev. v. S. Fork Band of Te-Moak Tribe of W. Shoshone Indians of Nev., 339 F.3d 804, 814 (9th Cir. 2003) (quoting Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co. of Va., 464 U.S. 30, 35, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983)). Pursuant to this principle, the Supreme Court and this court have applied common law in cases involving federal copyright law, including the DMCA. The Supreme Court has applied the common law of agency in interpreting the Copyright Act. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). We have applied the common law of vicarious liability in analyzing the DMCA, reasoning that Congress intended that the DMCA’s “limitations of liability” be interpreted “under existing principles of law.” Ellison, 357 F.3d at 1076-77 (quoting S. Rep. 105-190, at 19 (1998)). We have also applied the common law of agency to determine a service provider’s intent to infringe under the DMCA. Fung, 710 F.3d at 1038. Along with other courts, we have applied agency law to questions much like the question of LiveJournal’s liability for the moderators’ acts. We applied agency law to determine whether a service provider was responsible under the DMCA for copyright infringement by its employees. Fung, 710 F.3d at 1038. The Tenth Circuit applied agency law to determine whether a service provider was responsible under the DMCA for copyright infringement by its contractors. See BWP Media USA, Inc. v. Clarity Dig. Grp., LLC, 820 F.3d 1175, 1180 (10th Cir. 2016). Finally, a district court applied agency, law to determine whether a service provider was responsible under the DMCA for the acts of moderators. Columbia Pictures Indus., Inc. v. Fung, No. CV 06-5578 SVW(), 2009 WL 6355911, at 13 n.21 (C.D. Cal. Dec. 21, 2009), aff'd in part, 710 F.3d 1020 (9th Cir. 2013). We therefore have little difficulty holding that common law agency principles apply to the analysis of whether a service provider like .LiveJournal is liable for the acts .of the ONTD moderators. 3. In light of the summary judgment record, we conclude that there are genuine issues of material fact as to whether the moderators are LiveJournal’s agents. The factual dispute' is evident when we apply common law agency principles to the evi-dentiary record.- “Agéncy is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” Restatement (Third). Of Agency § 1.01 (Am. Law Inst. 2006). For an agency relationship to exist, an agent must have authority to act on'behalf of the principal and “[t]he person represented [must have] a right to control the actions of the agent.” Restatement (Third) Of Agency § 1.01, cmt. c (Am. Law Inst. 2006). An agency relationship may be created through actual or apparent authority. Gomez v. Campbell-Ewald Co., 768 F.3d 871, 878 (9th Cir. 2014) (citing Restatement (Third) of Agency §§ 2.01, 2.03, 4.01 (Am. Law Inst. 2006)), cert. granted, — U.S. —, 135 S.Ct. 2311, (191 L,Ed.2d 977, 2015), and aff'd, — U.S. —, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016). Actual authority arises through “the principal’s assent that the agent take action on the principal’s behalf.” Restatement (Third) of Agency § 3.01 (Am. Law Inst. 2006). LiveJournal argues that it did not assent to the moderators acting on its behalf. Mavrix, however, presented .evidence'that LiveJournal- gave its moderators explicit and varying levels of authority to screen posts. Although LiveJournal calls the moderators “volunteers,” the moderators performed a vital function in LiveJ-ournal’s business model. There is evidence in the record that LiveJournal gave moderators express directions about their screening functions, including criteria for accepting or rejecting posts. Unlike other sites where users, may independently post content, LiveJournal relies on moderators as an integral part of its screening and posting business model. LiveJournal also provides three different levels of authority: moderators review posts to ensure they contain celebrity gossip arid not pornography or harassment, maintainers delete posts and can remove moderators, and owners can remove maintainers. Genuine issues of material fact therefore exist regarding whether the moderators had actual authority. Apparent authority arises by “a person’s manifestation that another has authority to act with legal consequences for the person who makes the manifestation, when a third party reasonably believes the actor to be authorized and the belief is traceable to the manifestation.” Restatement (Third) of Agency § 3.03 (Am. Law Inst. 2006); see also Hawaiian Paradise Park Corp. v. Friendly Broad. Co., 414 F.2d 750, 756 (9th Cir. 1969). “The principal’s manifestations giving rise to apparent authority may consist of direct statements to the third person, directions to the agent to tell something to the third person, or the granting of permission to the agent to perform acts ... under circumstances which create in him a reputation of authority.” Hawaiian Paradise Park, 414 F.2d at 756. LiveJournal selected moderators and provided them with specific directions. Mavrix presented evidence that LiveJour-nal users may have reasonably believed that the moderators had authority to act for LiveJournal. One user whose post was removed pursuant to a DMCA notice complained to LiveJournal “I’m sure my entry does not violate any sort of copyright law. ... I followed [ONTD’s] formatting standards and the moderators checked and approved my post.” The user relied on the moderators’ approval as a manifestation that the post complied with copyright law, and the user appeared to believe the moderators acted on behalf of LiveJournal. Such reliance is likely traceable to LiveJ-ournal’s policy of providing explicit roles and authority to the moderators. Accordingly, genuine issues of material fact exist regarding whether there was an apparent authority relationship. Whether an agency relationship exists also depends on the level of control a principal exerts over the agent. See Hollingsworth v. Perry, — U.S. —, 133 S.Ct. 2652, 2657-58, 186 L.Ed.2d 768 (2013) (referring to control as one of “the basic features of an agency relationship”); United States v. Bonds, 608 F.3d 495, 505 (9th Cir. 2010) (explaining that the “the extent of control exercised by the employer” is the “essential ingredient” in determining an agency relationship) (quoting NLRB v. Friendly Cab Co., 512 F.3d 1090, 1096 (9th Cir. 2008).) Evidence presented by Mavrix shows that LiveJournal maintains significant control over ONTD and its moderators. Delzer gives the moderators substantive supervision and selects and removes moderators on- the basis of their performance, thus demonstrating control. Delzer also exercises control over the moderators’ work schedule. For example, he added a moderator from Europe so that there would be a moderator who could work while other moderators slept. Further demonstrating LiveJournal’s control over the moderators, the moderators’ screening criteria derivé from rules ratified by LiveJournal. On the other hand, ONTD moderators “are free to leave and go and volunteer their time in any way they see fit.” In addition, the moderators can reject submissions for reasons other than those provided by the rules, which calls into question the level of control that LiveJournal exerts over their conduct. This evidence raises genuine issues .of material-fact re garding the level of control Live Journal exercised over the moderators. From the evidence currently in the record, reasonable jurors could conclude that an agency relationship existed. 4. We turn briefly to a related issue that the fact finder must resolve in the event there is a finding that the moderators are agents of LiveJournal. In that event, the fact finder must assess whether Mavrix’s photographs were indeed stored at the direction of the users in light of the moderators’ role in screening and posting the photographs. Infringing material is stored at the direction of the user if the service provider played no role in making that infringing material accessible on its site or if the service provider carried out activities that were “narrowly directed” towards enhancing the accessibility of the posts. See UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F.Supp.2d 1081, 1092 (C.D. Cal. 2008); see also Shelter Capital, 718 F.3d at 1018. Accessibility-enhancing activities include automatic processes, for example, to reformat posts or perform some technological change. Shelter Capital, 718 F.3d at 1020 (referring to accessibility-enhancing activities as those where the service provider did “not actively participate in or supervise file uploading”). Some manual service provider activities that screen for infringement or other harmful material like pornography can also be accessibility-enhancing. Id. at 1012 n.2. Indeed, § 512(m) of the DMCA provides that no liability will arise from “a service provider monitoring its service or affirmatively seeking facts indicating infringing activity.” Id. at 1022 (quoting 17 U.S.C. § 512(m)). The ONTD moderators manually review submissions and publicly post only about one-third of submissions. The moderators review the substance of posts; only those posts relevant to new and exciting celebrity gossip are approved. The question for the fact finder is whether the moderators’ acts were merely accessibility-enhancing activities or whether instead their extensive, manual, and substantive activities went beyond the automatic and limited manual activities we have approved as accessibility-enhancing. ¾? # Because the district court focused on the users’ submission of Mavrix’s photographs rather than on ONTD’s role in making those photographs publicly accessible and rejected Mavrix’s argument that unpaid moderators could be agents of LiveJour- nalr the district court erred in granting summary judgment to LiveJournal. Genuine issues of material fact exist as to whether the moderators were LiveJour-nal’s agents. Accordingly, remand is warranted. In assessing Live Journal’s threshold eligibility for the § 512(c) safe harbor, the fact finder must resolve the factual dispute regarding the moderators’ status as LiveJournal’s agents and in light of that determination, whether LiveJournal showed that Mavrix’s photographs were stored at the direction of the users. C. Once the district court concluded that the moderators were not LiveJournal’s agents (except for its employee Delzer), it proceeded to address the two remaining disputed requirements for establishing the § 512(c) safe harbor defense-lack of knowledge of infringements and lack of any financial benefit from infringement that it had the right and ability to control. Because these issues may be contested on remand, we proceed to address them to provide guidance to the district court. 1. If LiveJournal shows that it meets the threshold requirement for the § 512(c) safe harbor because the photographs were stored at the direction of the user, LiveJ-ournal must then show that it lacked both actual and red flag knowledge of the infringements. See 17 U.S.C. § 512(c)(1)(A). Actual knowledge refers to whether the service provider had subjective knowledge, while red flag knowledge turns on whether a reasonable person would objectively know of the infringements. Shelter Capital, 718 F.3d at 1025 (quoting YouTube, Inc., 676 F.3d at 31). Both actual and red flag knowledge refer to knowledge of the specific infringement alleged. Id. at 1023, 1025. On remand, the fact finder must first determine whether LiveJournal had actual knowledge of the infringements. A copyright holder’s failure to notify the service provider of infringement through the notice and takedown procedure, as Mavrix failed to do here, “strip[s] it of the most powerful evidence of [actual] knowledge.” Id. at 1020 (quoting Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1107 (W.D. Wash. 2004)). Such evidence is powerful, but - not conclusive, towards showing that a Service provider lacked actual knowledge. Id. at’ 1021. The district court held that LiveJournal lacked actual knowledge of the infringing nature of Mav-rix’s photographs solely on the basis of Mavrix’s failure to notify LiveJournal of the infringements. This was an incomplete assessment of the issue. To fully assess actual knowledge, the fact finder should also assess a service provider’s subjective knowledge of the infringing nature of the posts. See, e.g., id. at 1025 (continuing to assess knowledge). Delzer testified that he did not remember approving the posts, and Mavrix did not establish that he had actual knowledge of them, but Mavrix has not had the ■ opportunity to depose the moderators. On remand, the fact finder should determine whether LiveJournal, through its agents, had actual knowledge of the infringing nature of the posts. In the event the fact finder determines that LiveJournal lacked actual knowledge of the infringements, it must then assess whether LiveJournal lacked red flag knowledge. Red -flag knowledge arises when a service provider is “aware of facts that would have made the specific infringement ‘objectively’ obvious to a reasonable person.” Fung, 710 F.3d at 1043 (quoting YouTube, 676 F.3d at 31); see also UMG Recordings, Inc. v. Veoh Networks Inc., 665 F.Supp.2d 1099, 1111 (C.D. Cal. 2009) (describing red flag knowledge as a “high bar”). The infringement must be immediately apparent to a non-expert. See Veoh Networks Inc., 665 F.Supp.2d at 1108; H.R. Rep. 105-551, pt. 2 at 58- (1998) (explaining that infringements must be “apparent from even a brief and casual viewing”). Some of the photographs at issue in this, case contained either a generic watermark or a watermark containing Mavrix’s website, “Mavrixonline.com.” To determine whether LiveJournal had red flag knowledge, the fact finder should assess if it would be objectively obvious to a reasonable person that material bearing a generic watermark or a watermark referring to a sendee provider’s website was infringing. 2. Finally, if 'the fact finder determines that LiveJournal met the § 512(c) safe harbor threshold requirement (i.e., that the photographs were stored at the direction of the user, see 17 U.S.C. § 512(c)(1)), and that LiveJournal lacked knowledge of the infringements (see 17 U.S.C. § 512(c)(1)(A)), then the fact finder should determine whether LiveJournal showed that it did not financially benefit from infringements that it had the right and ability to' control. See 17 U.S.C. § 512(c)(1)(B). We agree with the district court in Io Group, Inc. v. Veoh Networks, Inc. that the fact finder should consider the service provider’s procedures that existed at the time of the infringements when assessing the service provider’s right and ability to control the infringements. 586 F.Supp.2d 1132, 1153 (N.D. Cal. 2008). The fact finder should consider the service provider’s general practices, not its conduct with' respect to the specific infringements. See Shelter Capital, 718 F.3d at 1023, 1030. “Right and ability to control” involves “something more than the ability to remove or block access to materials posted on a service provider’s website.” Id. (quoting YouTube, Inc., 676 F.3d at 38). The service provider does “something more” when it exerts “high levels of control over activities of users.” Id. The service provider exerts “high levels of control,” for example, when it, “prescreens sites, gives them extensive advice, prohibits the proliferation of identical sites,” provides “detailed instructions regarding] issues of layout, appearance, and content,” and ensures “that celebrity images do not over-saturate the content.” Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1173, 1182 (C.D. Cal. 2002); see also Shelter Capital, 718 F.3d at 1030, cited with approval in Perfect 10, 213 F.Supp.2d 1146. The district court concluded that LiveJ-ournal did not have high levels of control such that it had “something more” than the right and ability to remove or block access to material posted on ONTD. LiveJ-ournafs rules instruct users on the substance and infringement of their posts. The moderators screen for content and other guidelines such as infringement. Nearly two-thirds of submitted posts are rejected, including on substantive grounds. In determining whether LiveJournal had the right and ability to control infringements, the fact finder must assess whether LiveJour-nal’s extensive review process constituted high levels of control to show “something more.” LiveJournal must also show that it did not derive a financial benefit from infringement that it had the right and ability to control. See 17 U.S.C. § 512(c)(1)(B). “In determining whether the financial benefit criterion is satisfied, courts should take a common-sense, fact-based approach, not a formalistic one.” S. Rep. No. 105-190, at 44 (1998). The financial benefit need not be substantial or a large proportion of the service provider’s revenue. Ellison, 357 F.3d at 1079. In Fung, we held that a financial benefit was shown when “there was a vast amount of infringing material on [the service provider’s] websites ... supporting an inference that [the service provider’s] revenue stream is predicated on the broad availability of infringing materials for [its] users, thereby attracting advertisers.” 710 F.3d at 1045. On the other hand, the service provider in that case, “promoted advertising by pointing to infringing activity” and “attracted primarily visitors who were seeking to engage in infringing activity, as that is mostly what occurred on [the service provider’s] sites.” Id. . . LiveJournal derives revenue from advertising based on the number of views ONTD receives. Mavrix presented evidence showing that approximately 84% of posts on ONTD contain infringing material, although LiveJournal contested the validity of this evidence. The fact- finder should determine whether LiveJournal financially benefitted from infringement that it had the right and ability to control. D.
1440741-14587	WINTER, Circuit Judge: In these consolidated cases, Allen Harper Wise appeals from a conviction for distributing, and possessing with intent to distribute, heroin, while Lorman Eugene Edmonds, who pleaded guilty to the same offense and testified at Wise’s trial, appeals from his subsequent conviction for giving false testimony at Wise’s trial. Wise urges reversal of his conviction on the ground that Edmonds’ fifth amendment privilege against self-incrimination was violated when he was compelled to testify at Wise’s trial. Wise further contends that the evidence adduced at his trial was insufficient to support his conviction. Edmonds attacks his perjury conviction on the ground that the judge who sentenced him on the drug charge, to which he had pleaded guilty, took into account his untruthfulness at Wise’s trial and that the imposition of further punishment upon a conviction for perjury violated the fifth amendment guarantee against double jeopardy. We reject all of these contentions and affirm in both cases. I. A single indictment charged Wise and Edmonds with violating § 401(a)(1) of the Controlled Substances Act, 21 U.S.C. § 841(a)(1), by distributing, and possessing with intent to distribute, approximately twelve grams of heroin. Edmonds subsequently entered into a plea agreement with the government, in which Edmonds agreed to plead guilty to the indictment and “to cooperate fully and completely with the government and to testify candidly and truthfully, if necessary, for the government.” In return, the government agreed, inter alia, to make no recommendation to the district court regarding an appropriate sentence and to inform the court of the degree of Edmonds’ cooperation. Edmonds was rearraigned and entered a plea of guilty. The prosecutor then stated that if the case went to trial, the government would establish that on May 17, 1977, Special Agent McKinney and an informant of the Drug Enforcement Administration spoke with Edmonds about the purchase of a quantity of heroin; that Edmonds stated that Wise had the heroin and that McKinney and the informant should return later in the day; that McKinney and the informant returned later in the day and spoke with Edmonds and Wise about purchasing the heroin; that Edmonds and Wise then went into an apartment building and returned with a small waxpaper bag; that McKinney informed Edmonds that he wanted more heroin and handed to Edmonds $150; that Edmonds went back into the building and handed Wise the $150, which Wise counted; and that a moment later, Edmonds returned to McKinney and gave him a waxpaper bag whose contents were later determined to be approximately twelve grams of heroin. After the prosecutor had related these incidents, Edmonds’ attorney stated: “Your Honor, we — that is, the defendant and I— have no corrections or amendments or additions to the statement of facts.” The district judge then addressed Edmonds personally, and in response to the judge’s questions, Edmonds, who had been placed under oath, stated that the government’s version of the facts was correct. After engaging in further colloquy with Edmonds to be sure that the plea was entered intelligently and voluntarily, the district judge accepted the guilty plea and deferred sentencing. At Wise’s trial, the government called Edmonds as a witness. At a hearing outside the presence of the jury, however, Edmonds invoked his privilege against self-incrimination and refused to testify. The district judge ruled that Edmonds had waived his fifth amendment privilege and directed him to answer the prosecutor’s questions. In the presence of the jury, the district judge permitted the prosecutor to treat Edmonds as an adverse witness. In response to the prosecutor’s questions, Edmonds admitted that he had sold heroin to McKinney, but he denied any participation by Wise in the transaction. He testified that he had never told McKinney that Wise had the heroin to be sold and that he had not delivered to Wise the $150 paid by McKinney. The prosecutor was then permitted to impeach Edmonds by use of the statement of facts adopted by Edmonds at his rearraignment. This statement of facts was also admitted as substantive evidence against Wise. After hearing other evidence from both sides, the jury found Wise guilty, and judgment was entered accordingly. Edmonds was subsequently called for sentencing on the drug charge, to which he had pleaded guilty. Edmonds reaffirmed the accuracy of the statement of facts recited by the prosecutor at the time the guilty plea had been entered. He stated that he had understood the plea agreement to require him to testify only against himself, not against Wise, and that he had changed his story at Wise’s trial because he feared that testifying against Wise would have led to reprisals from Wise’s associates. In his statement preceding formal pronouncement of sentence, the district judge commented upon the data in Edmonds’ presentence report, including his unfavorable history of drug use and his record of prior convictions. He then added: Now, even more disturbing here is that you told one story to agents, and even to the Probation Officer, concerning the co-defendant Wise’s involvement. Then you changed your story when you took the stand and testified under oath at Wise’s trial and you now give the original story and say that you were worried about the consequences. It is obvious to me that you have very little regard for the truth, even when sworn as a witness at a federal trial. Let me say this to you: If you had cooperated and followed through with your agreement, I would have given you a very much lower sentence than I am about to give you. The district judge then sentenced Edmonds to ten years’ imprisonment plus a special parole term of five years. Subsequently, Edmonds was indicted under 18 U.S.C. § 1623 for giving false statements under oath at Wise’s trial. Edmonds admitted that he had committed perjury at Wise’s trial, but he claimed that he had already been punished for the perjury by the sentence imposed on the drug charge. Edmonds moved that the perjury indictment be dismissed, arguing that prosecution for perjury would subject him to double jeopardy. A different district judge denied the motion, and upon Edmonds’ waiver of trial by jury, found him guilty and sentenced him to one year’s imprisonment, to be served consecutively with the sentence imposed on the drug charge. II. Wise’s assignments of error need not detain us long. Wise contends that Edmonds was compelled to testify in violation of the fifth amendment privilege against self-incrimination, and that this constitutional violation requires reversal of his conviction. The district court ruled that Edmonds had waived his fifth amendment privilege by entering into the plea agreement requiring him to cooperate with the government and by testifying to his participation in the heroin sale when he entered his guilty plea. We agree. Even if there were doubt whether Edmonds’ waiver was knowing and voluntary, we hold that Wise has no standing to assert the violation of Edmonds’ fifth amendment privilege. See, e. g., United States v. Skolek, 474 F.2d 582, 584-85 (10 Cir. 1973). We also find no merit in Wise’s contention that the evidence was insufficient to support the conviction. In addition to the statement of facts adopted by Edmonds when he entered his guilty plea, which was admitted as substantive evidence against Wise, the government’s witnesses presented evidence that Wise had negotiated with McKinney for the sale of the heroin and that Edmonds had given to Wise the $150 paid by McKinney for the heroin. Although evidence was introduced to support Wise’s alibi defense, the evidence on appeal must be viewed in a light most favorable to the government. See, e. g., United States v. Sherman, 421 F.2d 198 (4 Cir.), cert. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970). The record contains ample evidence from which the jury could have found beyond a reasonable doubt that Wise participated, at least by aiding and abetting, see 18 U.S.C. § 2, in the illegal sale of heroin. III. Edmonds contends that the sentence imposed on him on the drug charge included punishment for giving false testimony and that his subsequent conviction and sentence for perjury therefore constitute a second punishment for that offense. He invokes the well-settled principle that the double jeopardy clause “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). We, however, find no violation of the double jeopardy clause in this context. Although we agree that Edmonds’ drug sentence took into account his perjury at Wise’s trial, we do not agree that the drug sentence constituted punishment for perjury, at least for purposes of double jeopardy analysis. The complex process of fixing an appropriate sentence was recently discussed by the Supreme Court in United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). Grayson upheld from due process attack a district judge’s consideration of false testimony given by the defendant at his own trial in setting the defendant’s sentence. The Court rejected the defendant’s contention that the sentence “constitutes punishment for the crime of perjury for which he has not been indicted, tried, or convicted by due process.” Id. at 52, 98 S.Ct. at 2617. Grayson differs from the instant case, since in that case the defendant’s false testimony was given at his own trial rather than that of a co-defendant, and no double jeopardy issue was raised before the Court. Nevertheless, we find the Court’s discussion of the sentencing function in Grayson to be helpful in resolving the instant case. As Chief Justice Burger noted in his opinion for the Court, sentencing in the early days of the Republic followed automatically from conviction. “[T]he period of incarceration was generally prescribed with specificity by the legislature. Each crime had its defined punishment.” Id. at 45, 98 S.Ct. at 2613. The sentencing function began to change dramatically at the close of the nineteenth century, as reformists asserted the primary purpose of incarceration to be rehabilitation. Under new statutes setting wide ranges of possible sentences for a given offense and requiring the preparation of pre-sentencing reports on defendants, sentencing judges became obligated to consider not simply the nature and severity of the offense, but the individual character of the defendant and his prospects for rehabilitation. See id. at 45-48, 98 S.Ct. 2610. The opinion in Grayson continued by pointing out that the Supreme Court gave its strong approval to the new broad discretion invested in sentencing judges in the leading case of Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). There, the Court permitted a sentencing judge to consider information available on the defendant’s background, even if the defendant is not given an opportunity to rebut such information. To restrict the sentencing judge’s consideration to only those facts adduced in open court would, according to Williams, conflict with the conscientious judge’s need for “information concerning every aspect of a defendant’s life.” Id. at 250, 69 S.Ct. at 1084. These considerations in Williams led the Grayson court to permit a sentencing judge to consider the defendant’s giving of false testimony before him. This broad discretion invested in the sentencing judge was considered necessary to implement the “prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.” Id. at 247, 69 S.Ct. at 1083, quoted in United States v. Grayson, 438 U.S. at 45, 98 S.Ct. 2610. Of course, the principle that “punishment should fit the offender” has not been carried to its logical extreme. Our criminal law does not permit a person to be punished merely because he is wicked or in need of rehabilitation. The commission of a defined offense against society, proved beyond a reasonable doubt, is still the fundamental prerequisite for the imposition of any criminal punishment, whatever its purposes. Thus, even under the rehabilitative theories of penology, imprisonment must be regarded as punishment for the crime of which the defendant is formally accused and convicted. Conversely, we believe that when a sentencing judge takes into account various aspects of the defendant’s background, including other offenses committed, in order to assess the defendant’s need for rehabilitation, the sentence thereby imposed does not constitute punishment for these aspects of defendant’s background. In the instant case, Edmonds was sentenced to. ten years’ imprisonment, plus a special parole term of five years, upon conviction on the drug charge. In determining the appropriate length of the sentence, the district judge considered many factors, including Edmonds’ history of drug use, his record of prior convictions, his lack of truthfulness at Wise’s trial, his decision to plead guilty, his status as a mere “lieutenant” in the heroin sale, and the fact that the sale was an isolated incident and not part of a major operation. Clearly, the sentence constituted punishment for unlawfully possessing and distributing heroin. But we also think that the sentence did not constitute punishment for testifying falsely at Wise’s trial, any more than it was punishment for Edmonds’ history of drug use or for his criminal record. Under the principles of sentencing expounded in Williams and Gra,yson, all of these factors are to be considered by the judge in determining the defendant’s need for rehabilitative treatment and the prospects for the success of that treatment, in order to fix the appropriate length of imprisonment. As the Supreme Court stated in Grayson, “the defendant’s readiness to lie under oath . may be deemed probative of his prospects for rehabilitation.” 438 U.S. at 52, 98 S.Ct. at 2617. We recognize that in the eyes of a defendant who has been told by a sentencing judge that his sentence has been set more harshly than it might have been because of his perjury, a ruling that the sentence does not punish him for his perjury might seem to be based more on semantics than on practical reality. But we believe that for purposes of double jeopardy analysis, the conclusion is ineluctable. In various contexts, defendants have been given harsher prison terms because of past criminal conduct, already punished, without implicating double jeopardy concerns.
5239626-9856	DECISION PER CURIAM. Erica S. Nelson petitions this court for review of a decision of the Merit Systems Protection Board, Docket No. AT-0353-05-0380-1-1, denying her request for restoration to duty in her position with the Postal Service. Because we agree with the Board’s determination that Ms. Nelson was terminated for cause, we conclude that she has not shown she is entitled to restoration to duty. We therefore affirm the decision of the Board. BACKGROUND On October 13, 2004, Ms. Nelson began duty as a Part-Time Flexible City Carrier for the United States Postal Service. As a probationary employee, she was required to complete a 90-day probationary period, during which she would receive periodic performance evaluations. Following two weeks of training, Ms. Nelson reported to a Postal Service facility in Brunswick, Georgia, where her supervisor, Belinda Hardee, assigned her to an auxiliary postal route. On November 19, 2004, Ms. Nelson received a 30-day evaluation. In that first evaluation, Ms. Hardee rated Ms. Nelson as “satisfactory” in five of six categories, but deemed her performance as “unsatisfactory” in the category of ‘Work Quantity.” On December 9, 2004, Ms. Nelson was involved in a motor vehicle accident with another postal vehicle and sustained an injury to her right hand. Ms. Nelson was granted two days off and returned on December 13, 2004. The following day, Ms. Nelson received her 60-day evaluation. In that second evaluation, Ms. Hardee rated Ms. Nelson “unsatisfactory” in four categories, including “Work Quantity,” “Dependability,” ‘Work Relations,” and “Personal Conduct.” Concluding that Ms. Nelson had “Fail[ed] to Meet Probation Standards,” Ms. Hardee issued a notice of termination, effective December 14, 2004. In that letter, Ms. Hardee stated that Ms. Nelson’s “measured performance does not meet measurement standards for the city carrier craft” and “does not meet proficiency standards established by the Postal Service.” Ms. Hardee explained that Ms. Nelson’s 30- and 60-day evaluations indicated that she had “not demonstrated acceptable levels of performance in 4 of the 6 skill factors.” Ms. Hardee also noted that on December 7, Ms. Nelson had complained about a change to her scheduled assignment. Ms. Hardee stated that the incident “demonstrates unwillingness to be flexible, even though flexibility is a key element of this position.” Ms. Nelson subsequently filed an appeal with the Merit Systems Protection Board, alleging that the agency had denied her request for restoration to duty following her full recovery from a compensable injury. The administrative judge assigned to the case conducted a hearing and concluded that Ms. Nelson failed to show that she is entitled to restoration to duty. The administrative judge noted that Ms. Nelson bore the burden of establishing that her termination was “substantially related to her compensable injury.” Citing our decision in Cox v. Merit Systems Protection Board, 817 F.2d 100, 101 (Fed.Cir. 1987), the administrative judge stated that “[by] definition, separation as a result of a compensable injury excludes a valid removal for cause unrelated to the employee’s compensable injury.” (emphasis in original). The administrative judge explained that “the employee must show that no cause aside from the compensable injury precipitated the termination.” The administrative judge then reviewed the testimony of Ms. Nelson, Ms. Hardee, and Ernest Caine, a earrier/technician at the Brunswick, Georgia, facility, as well as exhibits submitted by both parties. The administrative judge stated that he found Ms. Nelson’s testimony to be “less than credible” because her responses were “rambling,” “evasive,” “inconsistent,” and “self-serving.” In particular, he noted that her “constant evasiveness detracted from her credibility” and that “her bias ... similarly detracted from her credibility.” In contrast, the administrative judge found Ms. Hardee’s testimony to be “completely consistent with the record and credible.” He explained that he did not discern, and Ms. Nelson “failed to establish^] any motive for Ms. Hardee to fabricate her testimony with respect to her treatment of [Ms. Nelson] ... or in terms of the nature of [Ms. Nelson’s] performance and conduct problems.” The administrative judge also found that “the record clearly establishes that the agency had raised concerns about [Ms. Nelson’s] performance and conduct prior to the appellant’s compensable injury on December 9, 2004.” Citing specific ‘Workhour Workload Report[s],” the administrative judge observed that the “record is replete with evidence of [Ms. Nelson’s] substandard casing speed.” In particular, he noted that the report for the rating period of November 19, 2004, to December 11, 2004, “shows that [Ms. Nelson’s] casing speed/office time was below the minimum standard every day of the rating period but one prior to the date of her compensable injury.” The administrative judge further noted that “Ms. Hardee credibly testified, and [Ms. Nelson] did not dispute,” that two days prior to the compensable injury, Ms. Hardee and Ms. Nelson had a confrontation over the decision to reassign Ms. Nelson’s route. The administrative judge thus found that concerns about Ms. Nelson’s “bad attitude” and unwillingness to be flexible had arisen prior to the date of her injury. As a result, the administrative judge concluded that the agency had clearly established a basis for its termination action “that was rooted in [Ms. Nelson’s] performance long before [her] compensable injury occurred.” Because Ms. Nelson had “failed to show that there was no valid cause aside from the injury that precipitated the agency’s action,” the administrative judge ruled that she was not entitled to restoration to duty. When the full Board denied Ms. Nelson’s petition for review, the administrative judge’s initial decision became the final decision of the Board. Ms. Nelson now seeks review by this court. DISCUSSION Ms. Nelson argues that the administrative judge applied an incorrect standard under 5 C.F.R. § 353.301 because he improperly relied on this court’s decisions in Walley v. Department of Veterans Affairs, 279 F.3d 1010 (Fed.Cir.2002), and New v. Department of Veterans Affairs, 142 F.3d 1259 (Fed.Cir.1998). According to Ms. Nelson, those cases, which require the employee to show that the separation is “solely attributable to the compensable injury,” Walley, 279 F.3d at 1016 n. 6, are distinguishable because they involve employees who were either partially recovered (Walley) or fully recovered after more than one year (New). In contrast, Ms. Nelson asserts that she is an employee who recovered fully within one year and that a different standard applies in her situation. In making that argument, Ms. Nelson overlooks the fact that an employee who recovers from a compensable injury, whether partially or fully, within one year or after one year, is not immune from separation for cause. Under 5 C.F.R. § 353.108, “separation for cause that is substantially unrelated to the injury ... negates restoration rights.” Moreover, as we explained in Cox v. Merit Systems Protection Board, and as noted by the administrative judge, “[by] definition, separation as a result of a compensable injury excludes a valid removal for cause unrelated to the employee’s compensable injury.” 817 F.2d 100, 101 (Fed.Cir.1987). Consequently, the administrative judge appropriately required Ms. Nelson to establish that she was not terminated for a reason substantially unrelated to her injury. Because the administrative judge found that the termination action “was rooted in [Ms. Nelson’s] performance long before [her] compensable injury occurred,” the administrative judge did not err in denying her request for restoration. Ms. Nelson argues that four cases, Raicovich v. United States Postal Service, 675 F.2d 417 (D.C.Cir.1982); Ruppert v. United States Postal Service, 8 MSPB 256, 8 M.S.P.R. 593 (1981); Rishavy v. United States Postal Service, 35 M.S.P.R. 528 (1987); and Roche v. United States Postal Service, 828 F.2d 1555 (Fed.Cir.1987), stand for the proposition that “unsatisfactory performance does not preclude restoration.” Those cases, however, do not support her request for restoration. In Raicovich, the court’s decision to reinstate Raicovich was based on the government’s concession that he “could not have been dismissed at the time of his injury on the basis of the three disciplinary incidents.” 675 F.2d at 424 n. 7. Unlike in Ms. Nelson’s case, Raicovich’s previous misconduct did not rise to a level requiring removal, and reinstatement was granted because separation was not for cause. Raicovich therefore does not assist Ms. Nelson, who was found to have been terminated for cause. Similarly, in Ruppert the Board found that there was a relationship between Ruppert’s injury and the reason for his separation, and that “the separation indisputably would not have occurred in the manner that it did had [Ruppert] not been injured.” Ruppert, 8 M.S.P.R. at 596. Consequently, Ruppert also does not apply to Ms. Nelson’s situation. Rishavy and Roche are entirely inapposite. Rishavy merely addressed the question whether restoration rights are applicable to employees serving in probationary status, an issue that is not in dispute in Ms. Nelson’s case. See 35 M.S.P.R. at 531. And Roche dealt only with the question of jurisdiction; that is, “whether Roche sufficiently alleged that he was removed due to a compensable injury.” 828 F.2d at 1557 (remanded to the Board “for a hearing on the jurisdictional issue”). Here, that question is not at issue; the administrative judge expressly found that Ms. Nelson had made a nonfrivolous allegation of jurisdiction. Ms. Nelson’s reliance on Raicovich, Ruppert, Rishavy, and Roche is therefore misplaced.
10531261-19132	DAVID R. THOMPSON, Circuit Judge: D. James Merrick (“Merrick”) brought suit in the United States District Court for the District of Idaho claiming that Farmers Insurance Group (“Farmers”) violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34, by not promoting him due to his age and by firing him because he filed an age discrimination complaint with the State of Idaho. The district court granted summary judgment in favor of Farmers on the failure-to-promote claim. A jury returned a verdict in favor of Farmers on the retaliatory discharge claim. Merrick appeals. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. FACTS Merrick began working for Farmers in December 1970. By March 1981, at the age of forty-nine, Merrick had advanced from his initial job as an underwriting trainee to Agricultural Sales Representative. Merrick generally received overall review ratings of “satisfactory” while in this latter position. In May 1981, Farmers had an opening for a Division Area Manager (“DAM”) in the Pocatello, Idaho region. Merrick asked his supervisor, Ted Wilsing, for help getting promoted to this job. Merrick claims that Wilsing recommended Merrick for the promotion and told Merrick that he would get the job. Instead, Craig Schienost, a twenty-five-year-old sales representative, got the job. In September 1981, Merrick applied for promotion to a new position as Special Lines Representative (“SLR”). Farmers gave this job to Mick Hodges, a twenty-eight-year-old employee in the Claims Department. As a result of Farmers’ refusal to promote him to either DAM or SLR, Merrick filed an age discrimination complaint with the Idaho Department of Industrial and Labor Services on October 30, 1981. Merrick notified Farmers of the charge on November 13, 1981. Approximately three weeks later, following a Christmas party at which Farmers asserted Merrick had been guilty of gross misconduct, Farmers fired Merrick. Thereafter, Merrick filed this suit in district court. ISSUES In this appeal we consider the following issues: 1. Did the district court err by granting Farmers’ motion for summary judgment on Merrick’s failure-to-promote claim? 2. Did the district court commit reversible error in its evidentiary rulings during trial on the retaliatory discharge claim? 3. Did the district court commit reversible error in instructing the jury? 4. Is either party entitled to attorney fees on appeal? ANALYSIS A. The District Court Did Not Err by Granting Farmers’ Motion for Summary Judgment on Merrick’s Failure-to-Promote Claim Merrick’s failure-to-promote claim is a claim of disparate treatment under the ADEA. Such claims are analyzed by the same standard used to analyze disparate treatment claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1982). Williams v. Edward Apffels Coffee Co., 792 F.2d 1482, 1484 (9th Cir.1986). In a Title VII disparate treatment case, a plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer’s alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory. Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir.1985) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)), amended by, 784 F.2d 1407 (9th Cir.1986); see also Douglas v. Anderson, 656 F.2d 528, 531 (9th Cir.1981) (citing similar language from Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Farmers apparently concedes that Merrick established a prima facie case of age discrimination in its decision to promote younger persons instead of Merrick. Similarly, Merrick does not deny that Farmers proffered reasons which, assuming that they were not pretextual, would justify its promotional decisions. The parties focus on the issue whether Farmers’ proffered reasons were pretextual. To avoid summary judgment, Merrick must demonstrate a genuine issue of material fact as to pretext. Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir.1987). “A plaintiff can show pretext in two ways, ‘either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ ” Id. (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095). 1. Division Area Manager (“DAM”) Farmers explains that its decision to promote Schienost, rather than Merrick, to the DAM position was justified because: (1) “Merrick ... did not command the respect necessary for that position, and did not maintain the positive demeanor necessary” and (2) Schienost had been recommended by Robert McClintick, the superior of Vena-bles and Raney, the two Farmers employees responsible for the DAM selection. Merrick puts forth several arguments to show that these proffered reasons are unworthy of credence. First, Merrick argues that McClintick’s recommendation of Schienost is suspect, because McClintick had not interviewed Schienost and had met him only once. However, Merrick does not dispute McClintick’s assertion that he relied on the advice of members of his staff in recommending Schienost. As the district court concluded, this reliance was not improper. Thus, the fact that McClintick was not intimately acquainted with Schienost is irrelevant. Second, Merrick argues that Raney’s decision to support Schienost’s promotion instead of Merrick’s was not credible. Merrick points to Raney’s negative comments about Merrick without ever having interviewed Merrick, Raney’s uncritical acceptance of McClintick’s recommendation of Schienost, and the disparity between Ra-ney’s negative comments and Merrick’s otherwise positive reviews. However, as the district court noted, none of these facts is inconsistent with Farmers’ proffered reasons for promoting Schienost instead of Merrick. Raney’s decision to support Schienost’s promotion, in part, because his supervisor recommended him, seems appropriate to us. Further, even though Raney did not personally interview Merrick, Merrick’s desk was right outside Raney’s office, thus giving Raney a firsthand view of Merrick’s work habits and demeanor. As to any alleged inconsistencies between Raney’s comments about Merrick and Merrick’s other evaluations, Raney clearly focused on Merrick’s leadership skills. That Raney found these particular skills lacking, while Merrick had received otherwise “satisfactory” reviews does not raise a triable issue of fact as to the credence of Farmers' reasons for selecting Schienost, and not Merrick, for the DAM position. Third, Merrick argues that Farmers’ reasons for not promoting him lack credibility, because these reasons were not documented until after the commencement of Merrick’s suit. We disagree. That Raney waited to memorialize the reasons for his decision fails to implicate the reasons themselves. Clearly, Raney documented his reasons in response to Merrick’s discrimination suit. But, as the district court noted this is not unusual. Merrick argues that the documented reasons for not promoting him should be disregarded in full because some of these reasons were unavailable at the time the promotion decision was made. We disagree. When the after-the-fact reasons are excised, sufficient reasons remain which justify Raney’s decision to promote Schienost instead of Merrick. Finally, we reach Merrick’s primary argument, that he was better qualified than Schienost. The evidence of his qualifications includes the recommendation of his supervisor, Wilsing, Merrick’s greater experience, and his somewhat better job performance. However, Merrick offers no evidence to refute Raney’s assertion that Merrick lacked the professionalism and the attitude required for the DAM position. Ra-ney had the opportunity to observe Merrick and had reviewed Merrick’s personnel file on a previous occasion. Essentially, Merrick responds that Raney’s testimony is not credible, but as we have noted, there is no support for this argument. Thus, Merrick failed to raise a triable issue of fact that Farmers’ reasons for denying him the DAM position were pretextual. 2. Special Lines Representative (“SLR”) Wells, Farmers’ executive in charge of selecting the new SLR, chose the younger Hodges over Merrick. Farmers explains that Wells chose Hodges because of Hodges’ claims background. Merrick offers four arguments to show pretext. Merrick first notes that Wells commented he chose Hodges because he was “a bright, intelligent, knowledgeable young man.” Merrick argues this comment is sufficient to raise a triable issue of fact whether Wells refused to promote Merrick because of his age. Comments suggesting that the employer may have considered impermissible factors are clearly relevant to a disparate treatment claim. See Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1466 (5th Cir.) (Sneed, J.), cert. denied, — U.S. -, 110 S.Ct. 129, 107 L.Ed.2d 89 (1989); Samarzia v. Clark County, 859 F.2d 88, 91 (9th Cir.1988), amended by, 866 F.2d 1185 (9th Cir.1989). On the other hand, “stray” remarks are insufficient to establish discrimination. See Hopkins, 109 S.Ct. at 1791 (plurality); id. at 1804 (O’Connor, J., concurring); id. at 1806 (Kennedy, J., dissenting); see also Gagne v. Northwestern Nat’l Ins. Co., 881 F.2d 309, 314-16 (6th Cir.1989) (finding that a “single, isolated discriminatory comment” by plaintiff’s immediate supervisor was insufficient to trigger burden shift or to avoid summary judgment for defendant); Smith v. Firestone Tire and Rubber Co., 875 F.2d 1325, 1330 (7th Cir.1989) (noting that stray “remarks, ... when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decisionmaker in issue”). Wells’ alleged comment is a “stray remark.” Without more, Merrick has made no showing that the decision not to promote him was based on age. Second, Merrick contends that Farmers’ policy of identifying employees as having “outstanding potential” effectively discriminates against older employees. This argument has two flaws. First, Wells was not aware of Hodges’ status on the “outstanding potential” list. Thus, the “outstanding potential” designation is irrelevant to Merrick’s claim. Furthermore, Merrick has produced no evidence to support his assertion that the policy has an adverse impact on older employees. Cf. Sorosky v. Burroughs Corp., 826 F.2d 794, 804 (9th Cir.1987) (rejecting inferences based on inadequate statistical analysis). Merrick relies on dicta in a district court opinion that: “While potential is analytically separable from age under certain circumstances, the two usually are intertwined in sufficiently complicated ways to make resolution by summary judgment inherently inappropriate.” Pirone v. Home Ins. Co., 507 F.Supp. 1281, 1289 (S.D.N.Y.1981), aff'd without published opinion, 742 F.2d 1430 (2d Cir.1983). However, Pirone is distinguishable because the defendant-employer in Pirone explicitly relied on the plaintiffs’ perceived lack of potential to justify terminating the plaintiffs. Id. The other ease cited by Merrick, Tevelson v. Life and Health Ins. Co. of America, 643 F.Supp. 779, 783 (E.D.Pa.1986), aff'd without published opinion, 817 F.2d 753 (3d Cir.1987), is inapposite, because the plaintiff in Tevelson apparently had statistical evidence to establish the relation between age and perceived potential at his company. Merrick’s third argument to show pretext essentially restates his assertion that Raney did not have adequate information to appraise Merrick’s management abilities. Our previous discussion of Raney’s review of Merrick’s personnel file and opportunity to observe Merrick’s work forecloses this argument. Finally, Merrick contends that Wells’ explanation that he chose Hodges for the SLR position due to his claims background is unworthy of credence because Merrick met the SLR’s job prerequisites while Hodges did not. Apparently, claims experience was not even mentioned in the SLR job description. On the other hand, Merrick does not challenge Wells’ assertion that another executive had recommended to Wells that he hire an applicant with claims experience. Moreover, Merrick has made no showing that the desire to have a person in the SLR slot with claims experience was a pretext for discriminating against Merrick. In short, Merrick has failed to present sufficient evidence relevant to the pretext issue to show the existence of a genuine issue of material fact. Therefore, summary judgment in favor of Farmers was appropriate. B. The District Court Did Not Commit Reversible Error in its Evidentiary Rulings During Trial on the Retaliatory Discharge Claim Merrick appeals several evidentiary rulings made during the course of the trial. We review these rulings under an abuse of discretion standard and note that harmless errors do not justify reversal. See United States v. Kirk, 844 F.2d 660, 663 (9th Cir.) (hearsay rulings reviewed for abuse of discretion), cert. denied, — U.S. -, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988); Sochin v. Commissioner, 843 F.2d 351, 355 (9th Cir.) (relevancy determinations reviewed for abuse of discretion), cert. denied, — U.S. -, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988); Fenner v. Dependable Trucking Co., 716 F.2d 598, 603 (9th Cir.1983) (noting that evidence erroneously admitted is harmless unless it affects substantial rights of the parties or is inconsistent with substantial justice). We discuss each challenged ruling in turn. We do not address arguments raised by Merrick for the first time in his reply brief. Thompson v. Commissioner, 631 F.2d 642, 649 (9th Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981). 1. Admission of Merrick’s Older Performance Evaluations Merrick argues that certain performance evaluations completed in the 1970’s and contained in Exhibits 60, 66 and 67 were irrelevant and that even if they had probative value they should have been excluded under Rule 403. We disagree. The decisionmakers at Farmers who considered Merrick’s termination reviewed his entire personnel file when they considered alternative forms of discipline. The file included the exhibits in question. Thus, the performance evaluations contained in Exhibits 60, 66 and 67 were relevant to the decision to terminate Merrick. The Exhibits were also relevant to an issue raised by Merrick himself, namely his contention that Farmers had violated its own policies by terminating him without giving him a chance to improve himself. We conclude that the district court did not abuse its discretion in admitting Exhibits 60, 66 and 67 into evidence. 2. Admission of Photograph Merrick argues that a photograph depicting participants at the Christmas party preceding his termination should not have been admitted because (1) the photograph was concealed during discovery and (2) the photograph was not properly authenticated. The photograph showed one person dressed in a Santa Clause suit, and two females dressed as “Santa’s Helpers.” Merrick’s counsel did not specifically request production of the photograph during discovery, although arguably some of the more general interrogatories could be interpreted as calling for its production. In any event, it was not until trial that a dispute arose as to what some of the participants at the party were wearing. Farmers offered the photograph to resolve this dispute. The district court noted that Farmers could not have anticipated this eviden-tiary development. Merrick was not in the picture. Under these circumstances, we cannot say that the district court abused its discretion in admitting the photograph into evidence over Merrick’s discovery objection. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 515 n. 9 (9th Cir.1985). As to Merrick’s authentication argument, Merrick failed to specify this as his ground for objection in the district court. He stated only that he did not “think there [had] been proper foundation or relevance for the” photograph. He did not explain that his objection was based on authentication rather than relevance grounds. And, as we have previously noted, the photograph was relevant to the dispute over the type of clothing the Santa’s Helpers were wearing. 3. Statements of Farmers’ Agents and District Manager Merrick attempted to testify as to statements made by two of Farmers’ insurance agents and one of its district managers. The statements were about what had transpired at the Christmas party. The district court sustained a hearsay objection to this testimony. Merrick argues the statements are not hearsay because they are admissions by Farmers’ agents. Evidence Rule 801(d)(2)(D) provides that a statement is not hearsay if it is “offered against a party and is ... a statement by the party’s agent ... concerning a matter within the scope of the agency ... made during the existence of the relationship.” Fed.R.Evid. 801(d)(2)(D). As the proponent of the evidence, Merrick had the burden to demonstrate that these “agents’ ” statements “concerned a matter within the scope of the agency.” See Oki America, Inc. v. Microtech Int'l, Inc., 872 F.2d 312, 314 (9th Cir.1989). Merrick did not make this showing. He did not establish that the insurance agents and the district manager were “agents” of Farmers as opposed to independent contractors; nor did he show that their statements about the Christmas party concerned a matter within the scope of their agency. The district court properly rejected this proffered evidence as hearsay. C. The Court Properly Instructed the Jury on Merrick’s Retaliatory Discharge Claim Merrick contends that the court improperly instructed the jury. Specifically, Merrick challenges Instruction 8-A and the court’s refusal to give Merrick’s instruction on disparate punishment. “We review the jury instructions as a whole to determine ‘whether the instructions insure that the jury understands the issues in the case and is not misled in any way.’ ” Gilchrist v. Jim Slemons Imports, 803 F.2d 1488, 1495 (9th Cir.1986) (quoting Underhill v. Royal, 769 F.2d 1426, 1433 (9th Cir.1985)). The district court has “broad discretion in formulating the instructions and need not give an instruction in the precise language proposed by the” requesting party. United States v. Hayes, 794 F.2d 1348, 1351 (9th Cir.1986), cert. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). “An error in jury instructions that relates to the ‘substantial rights of a party is grounds for reversal unless it affirmatively appears from the whole record that it was not prejudicial.’ ” Gilchrist, 803 F.2d at 1496 (quoting Cancellier v. Federated Dept. Stores, 672 F.2d 1312, 1316 (9th Cir.), cert. denied, 459 U.S. 859, 103 S.Ct. 131, 74 L.Ed.2d 113 (1982)).
4145141-30385	MEMORANDUM AND ORDER JAMES R. MILLER, Jr., District Judge. This action was filed as a class action challenge to the University of Maryland’s “In-State Policy” which precludes non-immigrant aliens from consideration for instate status while enrolled at the University. The court has already addressed the plaintiffs’ due process challenge to the policy. Presently pending before the court are cross motions for summary judgment on the remaining issues raised under the Equal Protection Clause of the Fourteenth Amendment and the Supremacy Clause of the Constitution. 1. The Equal Protection Claims The plaintiffs’ initial argument under the Equal Protection Clause is that the challenged portion of the University’s InState Policy is premised upon a classification based on alienage, and therefore is subject to strict scrutiny in accordance with the Supreme Court decisions in Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976), and Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977). The defendant, however, contends that strict scrutiny is inappropriate on the following bases: (1) The previous Supreme Court cases concerning discrimination against aliens in which a strict scrutiny test was applied all involved a statute or practice which allegedly discriminated against resident aliens (a term equated by the defendant with immigrant alien); (2) since immigrant aliens are eligible for in-state status at the University, it is irrational to contend that the University’s policy denies benefits on the basis of alienage; (3) the rationale for according “suspect” class status is wanting in this case since nonimmigrants can decide to adjust to immigrant visa status; (4) in-state consideration is not a necessity of life and, therefore, strict scrutiny is inappropriate; (5) strict scrutiny should not be applicable since the University’s policy is consistent with the purposes of federal immigration law; and (6) in the dissent filed in a prior opinion of the Supreme Court in this case, Justice Rehnquist and Chief Justice Burger indicated that “[tjhere . . . would not appear to be any issue of suspect class and the University’s in-state tuition policy need only be shown to be rationally related to a legitimate state interest.” Elkins v. Moreno, 435 U.S. 647, 676 n.6 [98 S.Ct. 1338, 1354 n.6, 55 L.Ed.2d 1338] (1978). In determining the applicable standard in the present case, it is necessary to review briefly the recent Supreme Court decisions regarding the ability of the State to create legislative classifications on the basis of alienage. Initially, it is clear that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, supra, 403 U.S. at 372, 91 S.Ct. at 1852. Thus, in the Graham case, the Supreme Court struck down Pennsylvania and Arizona statutes which denied welfare benefits to resident aliens or to aliens who had not resided in the United States for a requisite number of years, as being violative of the Equal Protection Clause. In subsequent cases the Court has expounded upon this doctrine. For example, in Examining Board v. Flores de Otero, supra, Puerto Rico’s virtual ban on the private practice of civil engineering by aliens was held unconstitutional by the Court, stating 426 U.S. at 602, 96 S.Ct. at 2281: “[Graham v. Richardson, supra; Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); and In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973)] establish that state classifications based on alienage are subject to ‘strict judicial scrutiny.’ Graham v. Richardson, 403 U.S. at 376, 91 S.Ct. at 1854. Statutes containing classifications of this kind will be upheld only if the State or Territory imposing them is able to satisfy the burden of demonstrating ‘that its purpose or interest is both constitutionally permissible and substantial; and that its use of the classification is “necessary ... to the accomplishment” of its purpose or the safeguarding of its interest.’ In re Griffiths, 413 U.S. at 721-722, 93 S.Ct. at 2854-2855 (footnotes omitted).” The Court went on to note that two rationales exist for the principles set forth in these cases: “The first, based squarely on the concepts embodied in the Equal Protection Clause of the Fourteenth Amendment and in the Due Process Clause of the Fifth Amendment, recognizes that ‘[a]liens as a class are a prime example of a “discrete and insular” minority. . for whom . . . heightened judicial solicitude is appropriate.’ Graham v. Richardson, 403 U.S. at 372, 91 S.Ct. at 1852 . . . . The second, grounded in the Supremacy Clause, Const., Art. VI, cl. 2, and in the naturalization power, Art. 1, § 8, cl. 4, recognizes the Federal Government’s primary responsibility in the field of immigration and naturalization.” (Citations omitted). 426 U.S. at 602, 96 S.Ct. at 2281. Similarly, in Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977), the Supreme Court held unconstitutional a New York statute which barred certain resident aliens from eligibility for state financial assistance for higher education. The appellants in Nyquist sought to avoid strict scrutiny analysis by the Court by arguing that the state statute in question distinguished “only within the heterogeneous class of aliens and [did] not distinguish between citizens and aliens vel non.” Id. at 8, 97 S.Ct. at 2125. Nevertheless, the Court applied strict scrutiny analysis in striking down the statute, as it stated: “The important points are that [the statute] is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class.” Id. at 9, 97 S.Ct. at 2125. As previously mentioned, the defendant’s initial and principal argument against the application of the doctrine of strict scrutiny here is premised upon the observation that all prior Supreme Court cases cited have dealt with classifications of “resident” aliens, rather than with “non-immigrant” aliens. Accordingly, the defendant argues that nothing in the prior Supreme Court cases requires the application of strict scrutiny in the examination of state discrimination against nonimmigrant aliens. In support of this contention, the defendant refers the court to G. Rosberg, The Protection of Aliens from Discriminatory Treatment by the National Government, Sup.Ct.Rev. 275, 312 (1977), wherein the author states: “The Supreme Court . . . has not held it unconstitutional to discriminate against nonimmigrant aliens. It has not even suggested that such aliens are within the class protected under the suspect classification doctrine.” Since no case law is cited in support of the defendant’s position, the issue of whether state classifications which narrowly discriminate against nonimmigrant aliens should be examined under strict scrutiny analysis appears to present a novel question of law. In attempting to distinguish the present case from prior Supreme Court decisions which applied strict scrutiny analysis to classifications of “resident” aliens, See Graham v. Richardson, supra; Sugarman v. Dougall, supra; In re Griffiths, supra; Nyquist v. Mauclet, supra, the defendant appears to adopt a definition of “resident” alien which excludes a nonimmigrant status from its umbrella. This definition, in turn, appears to have its genesis in the article by Professor Rosberg: “As defined in the federal immigration laws, a resident- or immigrant-alien is a person admitted for permanent residence, entitled to work and live anywhere in the country and eligible for naturalization after five years of residence. A non-resident- or nonimmigrant-alien is a person admitted for a fixed period of time determined prior to entry . . . . No amount of residence will make a nonimmigrant eligible for naturalization.” G. Rosberg, The Protection of Aliens from Discriminatory Treatment by the National Government, supra at 277. Under Professor Rosberg’s analysis, the terms “immigrant” and “resident” are synonymous, as are the terms “nonimmigrant” and “nonresident”. This court, however, has concluded that this definition of these terms is erroneous, both in light of the definitions contained in the Immigration and Nationality Act itself and of usage of the terms in relevant case law. The Immigration and Nationality Act defines the term “residence” as follows: “The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. Residence shall be considered continuous for the purposes of sections 1482 and 1484 of this title where there is continuity of stay but not necessarily an uninterrupted physical presence in a foreign state or states or outside the United States.” 8 U.S.C. § 1101(a)(33). Under this definition a “resident” alien is one whose place of general abode is within the United States. Resident aliens can, therefore, be further classified as either “immigrant” or “nonimmigrant”, the chief basis for the distinction between the two being the statutory recognition of temporal limits inherent in nonimmigrant status. Immigrant aliens are referred to as being “lawfully admitted for permanent residence”, i. e. being “accorded the privilege of residing permanently in the United States.” 8 U.S.C. § 1101(a)(20). Nonimmigrant aliens, by contrast, are admitted for temporary residence. Nonimmigrant aliens are ineligible to become naturalized citizens, because they are not admitted for permanent residence in accordance with the statutory requirements. See 8 U.S.C. § 1427(a). Nonimmigrant aliens may, however, be classified as resident aliens if their principal dwelling place is within the United States. Thus the court finds that the term “resident alien”, as used in prior Supreme Court decisions dealing with the state’s power to classify on the basis of alienage, means those aliens, either immigrant or nonimmigrant, who maintain their place of general abode within the United States. Given the above definition of “resident alien”, the defendant’s position presumably is that the prior Supreme Court cases mandate that strict scrutiny analysis be applied in cases of state classifications which discriminate broadly against resident aliens, but that the Court has not yet addressed the question of discriminate classifications of an identifiable subclass of resident aliens, i. e. nonimmigrant aliens. The chief factor which distinguishes non-immigrant resident aliens from other resident aliens is that nonimmigrants are admitted only as “temporary” residents of the United States. Accordingly, regardless of the duration of a nonimmigrant's residence in this country, he is ineligible for citizenship unless he changes his visa status to that of an alien admitted for permanent residence, i. e. an immigrant alien. Nonimmigrant aliens, therefore, have a lesser degree of national affinity than immigrant aliens since the former will not, as a matter of course, become eligible for citizenship. This fact, however, is an insufficient justification for allowing the states greater latitude to discriminate against nonimmigrant aliens. As was stated by the Supreme Court in Nyquist v. Mauclet, supra 432 U.S. at 10, 97 S.Ct. at 2126: “The first purpose offered by the appellants, directed to what they describe as some ‘degree of national affinity’ ... is not a permissible one for a State. Control over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere.” The fact that nonimmigrant aliens may not acquire citizenship in the United States is a fact which is exclusively controlled by Congress. Therefore, a state has no power to place additional burdens on nonimmigrants solely on the basis of their visa status as dictated by Congress. The court concludes that the Supreme Court cases cited have in principle wrapped all resident aliens, both immigrant and non-immigrant, in the suspect classification blanket. The judicial protection accorded to aliens as a suspect class was based upon a recognition that aliens constitute a “discrete and insular minority” for whom “heightened judicial solicitude is appropriate”. See, Graham v. Richardson, supra 403 U.S. at 372, 91 S.Ct. at 1852. This treatment is seemingly premised on the aliens’ minority status in the community, not their potential citizen status. Accordingly, the court believes that existing case law demands that states justify discriminate classifications of resident aliens, whether immigrant or nonimmigrant, under a strict scrutiny standard. The defendant has presented the court with several additional alternate arguments against the application of strict scrutiny analysis in this case. First, the defendant stresses that the In-State Policy does not discriminate against all aliens, in that it only precludes consideration for instate status to all nonimmigrant aliens. This fact, however, is unimportant, for as the Court stated in Nyquist, the relevant facts in determining that strict scrutiny should apply are that the policy is directed at aliens, albeit only the subclass of nonimmigrant aliens in the present case, and that only aliens are harmed by the policy. The subclass of nonimmigrant aliens seemingly constitutes a “discrete and insular minority for whom judicial solicitude is appropriate,” Graham v. Richardson, supra at 372, 91 S.Ct. at 1852, since their nonimmigrant status is dictated by federal law. Cf. 8 U.S.C. § 1101(a)(15). The defendant also argues that the University’s policy harms not only aliens but that it also denies in-state preference to out-of-state students. {See Paper 42, p. 4). This argument, however, is unpersuasive since the policy subjects all citizens and immigrant aliens to a domicile test in order to qualify for in-state benefits whereas non-immigrant aliens are precluded from qualifying under the same test. The fact that one of the effects of the statute is to deny in-state status to out-of-state students is immaterial in determining whether the policy denies equal protection to nonimmigrant aliens who reside within the state. The policy is naturally based on the premise that in-state status should only be granted to persons who reside within the state. The question, therefore, is whether the policy denies equal protection to nonimmigrants as a “discreet and insular” minority of state residents. It appears to do so. The defendant also seeks to avoid strict scrutiny analysis by claiming that the benefit sought is not a “necessity of life.” The defendant cites the recent Supreme Court opinion in Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978). In this context, however, the defendant’s reliance on Foley is misplaced. In Foley, the Court upheld a New York statute limiting appointment to the state police force to United States citizens by applying a rational basis, rather than a strict scrutiny, test. The application of this less demanding standard, however, was clearly limited to alien-age classifications in matters involving the state’s “historical power to exclude aliens from participation in its democratic political institutions.” Id. at 295, 98 S.Ct. at 1070. As the Court stated: “The essence of our holdings to date is • that although we extend to aliens the right to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens.” Id. at 297, 98 S.Ct. at 1071. The defendant would have the court construe this statement to mean that strict scrutiny should only apply to the “necessities of life”, such as those indicated. Taken in context, however, it is apparent that the case stands for a limited exception to the general strict scrutiny standard, and that the exception will apply only in cases involving state regulation of one of the basic functions of government. This meaning is apparent in light of the Court’s later decision in Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979), where it stated: “The rule for governmental functions, which is an exception to the general standard applicable to classifications based on alienage, rests on important principles inherent in the Constitution. The distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State.” Id. at 75, 99 S.Ct. at 1593. Thus the strict scrutiny approach is generally applicable to State classifications based on alienage, excepting those dealing with governmental functions in which cases the less stringent rational basis test will be applied. Given the above considerations, the Court finds that strict scrutiny is the applicable test in examining the constitutionality of the University’s In-State Policy. Accordingly, the statute may be upheld only if the defendant satisfies the burden of demonstrating that: “[the policy’s] purpose or interest is both constitutionally permissible and substantial, and that [the State’s] use of the classification is necessary to the accomplishment of its purpose or the safeguarding of its interest.” Examining Board v. Flores de Otero, supra, 426 U.S. at 602, 96 S.Ct. at 2281 (citing In re Griffiths, supra 413 U.S. at 721-722, 93 S.Ct. at 2854-2855). The defendant’s Memorandum in support of his Motion for Summary Judgment (Paper 36) discusses the interests served by the In-State Policy in terms of a rational basis standard, rather than a strict scrutiny standard. The purposes purportedly served by the Policy have been set forth by the defendant as follows: (1) limiting the University’s expenditures by granting a higher subsidy toward the expenses of providing educational services to that class of persons who, as a class, are more likely to have a close affinity to the State and to contribute more to its economic well-being; (2) achieving equalization, between the affected classes, of the expenses of providing educational services; (3) efficiently administering the University’s in-state determination and appeals process; and (4) preventing disparate treatment among categories of nonimmigrants with respect to admissions, tuition, and charge-differentials. Although these factors would arguably constitute a sufficient justification for the University’s policy under a rational basis analysis, they fail to meet the high burden which the defendant faces under a strict scrutiny standard. Citizens and immigrant aliens do not necessarily have a “closer affinity” to the State than do nonimmigrant aliens. This is particularly apparent in the context of this case, since it has already been determined that, as a matter of both federal and state law, G-4 nonimmigrant aliens are capable of acquiring domicile in the state of Maryland. In addition, the state affinity rationalization was specifically considered and rejected by the Supreme Court in Nyquist v. Mauclet, supra. Similarly, cost equalization is an insufficient justification for the University’s policy. As this court has previously noted: “Nonimmigrant aliens, even those such as plaintiffs’ fathers whose salaries are exempt from state income tax, who have resided in Maryland for 10 or 15 years, as have plaintiffs’ fathers, might well have contributed far more financial support to the University of Maryland through payment of real property, sales and other taxes than would have a student, financially independent for at least 12 months, who maintained a domicile in Maryland for 6 months prior to his class registration. Yet such a student, who conceivably could have contributed almost nothing to the Maryland tax base, is allowed to prove Maryland domicile under the ‘In-State Policy.’ ” Moreno v. University of Maryland, 420 F.Supp. at 560. The rationalization that the preclusion of nonimmigrants promotes the efficient administration of the University’s policy is patently insufficient under a strict scrutiny analysis. Cf. Memorial Hospital v. Maricopa County, 415 U.S. 250, 267, 94 S.Ct. 1076, 1086, 39 L.Ed.2d 306 (1974). It is apparent that the University already has an administrative procedure through which eligibility for in-state status may be determined on a case-by-case basis when necessary. Thus any questions of in-state eligibility for non-immigrants could easily be processed through the University’s existing administrative procedures. The fact that this would result in an increased cost to the University is an insufficient justification for the Policy. Sugarman v. Dougall, supra 413 U.S. at 646, 93 S.Ct. at 2849. Finally, the University’s rationalization that the present policy prevents disparate treatment among categories of nonimmigrant aliens is not persuasive. If that portion of the University’s policy which limits consideration for in-state eligibility to citizens and immigrant aliens were stricken, then nonimmigrant aliens would be uniformly eligible for consideration for in-state status under the terms of the policy applicable to citizens and aliens alike. The fact that certain categories of nonimmigrants would, as a matter of law, prove to be ineligible for in-state treatment is an insufficient basis for precluding consideration of those who could otherwise qualify under the terms of the policy. For the foregoing reasons, the Court finds that the University of Maryland’s InState Policy violates the Equal Protection Clause of the Fourteenth Amendment to the extent that it denies nonimmigrant aliens consideration for eligibility for instate status. II. The Supremacy Clause Claims The plaintiffs contend that the University’s In-State Policy violates the Supremacy Clause on two grounds. First, the plaintiffs claim that the Policy conflicts with international agreements entered into by the United States. Second, the plaintiffs argue that the Policy conflicts with the exclusive authority of Congress over immigration. A. Interference With International Agreements The substance of the plaintiffs’ contention on this ground is that the University’s Policy conflicts with the international agreements entered into by the United States which establish the international organizations employing the plaintiffs’ fathers in this country. Specifically, the plaintiffs contend that the Policy interferes with the provisions in the international agreements which preclude both Federal and State taxation of the salaries paid to non-American employees of the designated organizations. The purported conflict with these agreements stems from the fact that one of the University’s express justifications for the Policy is to promote cost equalization for those individuals subject to the full spectrum of Maryland taxes. Thus, largely because the plaintiffs’ fathers are not subject to the state income tax, they are not accorded the benefits derived from in-state classification. The defendant maintains that there is no direct conflict between the University’s Policy and the international agreements referred to by the plaintiff. The only arguable conflict which exists is between one of the rationales advanced in support of the University’s Policy and the income tax exemptions granted by the international agreements. The defendant contends that this is insufficient evidence of an impermissible conflict under the Supremacy Clause. As stated by the Supreme Court in DeCanas v. Bica, 424 U.S. 351, 357 n.5, 96 S.Ct. 933, 937 n.5, 47 L.Ed.2d 43 (1976), “the Supremacy Clause requires the invalidation of any state legislation that burdens or conflicts in any manner with any federal laws or treaties.” An indirect or hypothetical conflict is insufficient, however, to render invalid a state statute or policy, for the Supreme Court has stated that the reserved powers of the State “should be respected unless there is a clear collision with a national law which has the right of way under the Supremacy Clause of Article VI.” Kesler v. Dept. of Public Safety, 369 U.S. 153, 172, 82 S.Ct. 807, 818, 7 L.Ed.2d 641 (1962) (Emphasis added). Cf., Seagram & Sons v. Hostetter, 384 U.S. 35, 45, 86 S.Ct. 1254, 1260, 16 L.Ed.2d 336 (1966); Huron Cement Co. v. Detroit, 362 U.S. 440, 446, 80 S.Ct. 813, 817, 4 L.Ed.2d 852 (1960). In this case it is apparent that there is no “clear conflict” between the policies in question. The University’s Policy seeks to confer certain economic benefits on individuals closely affiliated with the State of Maryland. The mere fact that one of the factors which is considered in determining eligibility for this benefit is whether or not the applicant’s income is taxed by Maryland does not necessarily imply that the policy conflicts with the tax policies contained in the relevant international agreements. The “conflict” between these policies, in and of itself, is too attenuated to warrant invalidating the University’s Policy. B. Interference With Congress’ Exclusive Control Over Immigration. The plaintiffs contend that the University’s Policy violates the Supremacy Clause in that it encroaches upon the exclusive federal power over immigration and naturalization. The defendant, however, maintains that the Policy falls within the range of discretion afforded to states in dealing with aliens within their borders. Initially, as the Supreme Court noted in DeCanas v. Bica, 424 U.S. 351, 355, 96 S.Ct. 933, 936, 47 L.Ed.2d 43 (1966): “. . . the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by [the] constitutional power [to regulate immigration], whether latent or exercised.” The Court went on to explain that a regulation of immigration “is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id. Similarly, as the Court stated in Examining Board v. Flores de Otero, supra 426 U.S. at 604-605, 96 S.Ct. at 2282: “We do not suggest, however, that a State, Territory, or local government, or certainly the Federal government, may not be permitted some discretion in determining the circumstances under which it will employ aliens or whether aliens may receive public benefits or partake of public resources on the same basis as citizens. In each case, the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn.” (Emphasis supplied). As this section of the Court’s opinion indicates, the standard utilized to uphold a state regulation dealing with benefits to be accorded to aliens is essentially the strict scrutiny analysis previously discussed in reference to the Equal Protection arguments. Thus, for the reasons previously set forth, the defendant has failed to meet the high burden required in order to justify the discriminatory treatment of nonimmigrant aliens under the University’s Policy. This court, therefore, finds the Policy to be unconstitutional under both the Equal Protection Clause of the Fourteenth Amendment and the Supremacy Clause of the Constitution. III. Conclusion Accordingly it is ORDERED this 17th day of April, 1980 by the United States District Court for the District of Maryland, that the plaintiffs’ Motion for Summary Judgment is hereby GRANTED and the defendant’s Motion for Summary Judgment is hereby DENIED. . The plaintiff class was defined as follows: “All persons now residing in Maryland who are current students at the University of Maryland, or who chose not to apply to the University of Maryland because of the challenged policies but would now be interested in attending if given an opportunity to establish in-state status, or who are currently students in senior high schools in Maryland, and who (a) hold or are named within a visa under 8 U.S.C. § 1101(a)(15)(G)(iv) or are financially dependent upon a person holding or named within such a visa.” Moreno v. University of Maryland, 420 F.Supp. 541, 564 (D.Md.1976). . The University of Maryland’s In-State Policy makes Maryland domicile the test for granting in-state status to citizens and immigrant aliens. The Policy, along with the Board of Regents’ “Clarifying Resolution” of June 23, 1978 expressly precludes consideration of eligibility for in-state status in the case of non-immigrant aliens enrolled at the University. . See the district court decision in Moreno v. University of Maryland, 420 F.Supp. 541 (D.Md.1976), aff’d, 556 F.2d 573 (4th Cir.), cert. granted, 434 U.S. 888, 98 S.Ct. 260, 54 L.Ed.2d 173 (1977). The Supreme Court, after hearing argument on the case, certified a question of state law to the Maryland Court of Appeals, prior to entering a final order in the case. Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978). Subsequent to the decision by the Maryland Court of Appeals (Toll v. Moreno, 284 Md. 425, 397 A.2d 1009 (1979)) the Supreme Court remanded the matter to the district court for further consideration due to material changes in the factual posture of the case. Toll v. Moreno, 441 U.S. 458, 99 S.Ct. 2044, 60 L.Ed.2d 354 (1979). On remand, the district court issued an opinion ruling on the remaining due process issues and setting forth the issues remaining for consideration. Moreno v. Toll, 480 F.Supp. 1116 (D.Md.1979). . The statute in question in Nyquist v. Mauclet, supra, provided as follows: “Citizenship. An applicant (a) must be a citizen of the United States, or (b) must have made application to become a citizen, or (c) if not qualified for citizenship, must submit a statement affirming intent to apply for United States citizenship as soon as he has the qualifications, and must apply as soon as eligible for citizenship, or (d) must be an individual of a class of refugees paroled by the attorney general of the United States under his parole authority pertaining to the admission of aliens to the United States.” N.Y.Educ.Law § 661(3) (McKinney Supp. 1976).
82395-7033	BURGER, Circuit Judge. Ellen Fadeley died in April 1953 at age 84. Her executors reported on the federal estate tax return, a copy of which was filed with the District of Columbia inheritance tax return, two inter vivos gifts of $25,000 each which were made to decedent’s two grandsons in February 1952; the executors asserted these gifts, were not made in contemplation of death. The District of Columbia Assessor, however, held the gifts had been made in contemplation of death and assessed inheritance taxes against the two grandsons. Since decedent’s will directed that succession taxes be paid out of the corpus-of the estate, Fenton Fadeley, decedent’s, son and the residuary legatee, paid the-taxes assessed against the grandsons. Fenton Fadeley and the two grandsons-then filed three separate petitions in the-District of Columbia Tax Court for a refund of the taxes. The Tax Court granted the refund, holding that the gifts were-not made in contemplation of death. This decision was appealed by the District of Columbia in cases 12924, 12925- and 12926. These three cases involve two-issues, (1) whether the residuary legatee, who paid the assessment, and thedonees of the inter vivos gifts, against whom the taxes were assessed but who-did not pay them, can appeal to the Tax. Court from the District Assessor’s determination, and (2) whether the inter vivos, gifts were made in contemplation of death. The statute concerning appeals-to the Tax Court from tax assessments, provides: Any person aggrieved by any assessment by the District against him of any * * * taxes, or penalties thereon, may, within ninety days after notice of such assessment, appeal from such assessment to the board, provided such person shall first pay such tax, together with penalties and interest due thereon, to the collector of taxes of the District of Columbia. * * * (§ 47-2403, D.C.Code (Supp. III, 1951).) Petitioner contends that the donee-grandsons cannot appeal to the Tax Court be cause they did not pay the tax and the residuary legatee cannot appeal because, although he paid the tax, the tax was not assessed against him. Since this court held in National Bank of Washington v. District of Columbia that as a general rule an executor was not a “person aggrieved” for purposes of an appeal to the Tax Court, the obvious result of petitioner’s argument is that in a situation where the will provides for the payment of succession taxes out of the corpus of the estate, no one can appeal an assessment to the Tax Court under this statute. That could not have been intended and must not be allowed. The residuary legatee has paid the tax and since the tax reduces the amount which he will receive under the will, he is the one whose “individual interests are directly and personally affected” by the assessment and is thus the “person aggrieved” by the assessment. National Bank of Washington v. District of Columbia, supra, 226 F.2d at page 761. Although the tax was technically not assessed against the residuary legatee, for all practical purposes the assessment was against him and, therefore, he can appeal under this statute. On the contemplation of death issue, we believe the Tax Court’s finding that the gifts to the two grandsons were based on life motives is adequately supported and there is no basis for disturbing that finding. The desire to aid the business and home-making aspirations of grandchildren is a proper life motive for such gifts as these. Advanced age alone does not establish contemplation of death. The purposes here had long been contemplated and were frustrated by the advice of the parent of the donees, one of the very persons who normally (and properly) might urge tax-saving devices. The donor’s desire to make these gifts in 1945 was not carried out because Fenton Fadeley felt his sons (ages 16 and 20) were too young to have $25,000 each. The fact that the execution of the inter vivos gifts in 1952 was accompanied by a pro tanto reduction of testamentary bequests to the grandsons was a coincidence flowing from the employment of the will in 1945 to accomplish what the donor wanted to accomplish by inter vivos gifts at that time. The testamentary coloration of the gifts is, therefore, only superficial. The second group of cases (12978, 12979, 12980, 12981) relates to different issues. Decedent’s executors also included in the inheritance tax return decedent’s interests in four partnerships, valuing these interests at $108,117.95. The partners, in addition to decedent, were Fenton Fadeley, Chester Blinston, Patrick Deck and Dolores Fadeley. Each partnership agreement provided that decedent would receive 22%% of the profits of the business and this percentage could neither be increased nor decreased even though new partners were taken in or the number of partners reduced; on the death of any partner, the partner’s estate would remain a partner until the end of the calendar year, at which time the deceased partner’s capital account would be credited with the year’s profits and the capital account would then become the property of the partner’s executors; at the end of the calendar year in which decedent died the remaining partners would reform the partnership so that there would be added to each of the original partner’s percentage that portion of 22%% divided by the number of living original partners; Chester Blinston, Patrick Deck and Dolores Fadeley were to become partners because of services as employees (described as “invaluable” in the agreement) and because Fenton Fadeley would have less time for partnership management. Decedent performed no services for the partnerships. The Assessor capitalized average partnership profits for the years 1948-1952 and determined that each of the surviving partners had received $25,896.92, thus increasing to $211,705.63 the value of the partnership interests owned by decedent at her death. After paying the additional taxes so assessed, the partners sought refunds in the Tax Court. In opening their case in the Tax Court, counsel for the partner-taxpayers stated it was their contention that if a transfer of decedent’s partnership interests did occur, it occurred when the partnership agreements were drawn up and it was made for a valuable consideration. This was a point not raised in the taxpayers’ petitions. After the hearing, however, the Tax Court granted taxpayers’ motions to amend the petitions to include this consideration argument. The court observed that the taxpayers had urged the consideration argument in the opening statement without objection by the District, the issue was discussed in their briefs, and the partnership agreements, which were the only evidence necessary to support this argument, were received in evidence without objection. The Tax Court granted the refunds, holding that there was full consideration for the transfer of decedent’s partnership interests to the taxpayers as surviving partners. The District of Columbia appealed this decision in cases 12978,12979, 12980, and 12981.
4072558-12564	OPINION WHIPPLE, Senior District Judge. This matter is before the Court on petition filed February 6, 1979 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court has carefully reviewed all papers submitted including, but not limited to, the numerous state appellate briefs, the transcripts of the post trial hearings, the opinions of the New Jersey Superior Court, Appellate Division, and the opinion of the New Jersey Supreme Court, State v. Cerbo, 78 N.J. 595, 397 A.2d 671 (Sup.Ct.1979). In the absence of any factual issues to be ruled upon, no evidentiary hearing is necessary. Therefore under Fed.R.Civ.Pro. 78, this matter will be decided on the basis of the papers filed with the Court. Petitioner (and a co-defendant) were charged in an indictment with engaging in bookmaking activities in violation of N.J. S.A. 2A:112-3. Prior to trial, petitioner moved before Judge Thomas F. Dalton to suppress tape recordings for failure of the prosecution to promptly deliver the tapes to the court for sealing, as required by N.J. S.A. 2A:156A-11, 14. The evidence adduced at the suppression hearing disclosed that the tape in question was held by the investigating authorities for the purpose of making a composite tape for use at trial. The original and composite tapes were delivered to Judge Morris Pashman for sealing some thirty-three days after the date of termination of the wiretap authorization. Judge Dalton denied the motion to suppress, holding that the failure of the law enforcement authorities to comply with N.J.S.A. 2A:156A-11,14 was a mere “ministerial defect”. Following a trial before Judge James J. Petrella, where the wiretap evidence was admitted, petitioner was found guilty on all counts of the indictment. On July 19, 1974, Judge Thomas S. O’Brien sentenced petitioner to a term of two to four years imprisonment and a fine of $2,000.00. Petitioner appealed his convictions to the New Jersey Superior Court, Appellate Division. The alleged violation of the wiretap statute was not specifically urged upon the court as grounds for reversal of the convictions. However, in affirming petitioner and his co-defendant’s convictions, the court did pass on the issue of the legality of the wiretap evidence. State v. Benevento, 138 N.J.Super. 211, 214, 350 A.2d 485 (App.Div. 1975). Certification to the New Jersey Supreme Court was subsequently denied. On April 28, 1976- petitioner sought habeas corpus relief in this Court. A hearing was held, yet because of the June 22, 1976 decision in United States v. Gigante, 538 F.2d 502 (2d Cir. 1976) I allowed each side additional time to brief the procedural and substantive issues. In an unpublished opinion of July 25, 1976 I denied the requested relief because at that point it became clear the petitioner had failed to exhaust his state remedies. A petition was then filed for post-conviction relief on the basis of the delay in sealing the tapes. On September 23, 1976 a hearing was held at which time the petition was dismissed. On October 18, 1976 a Notice of Appeal was filed in the New Jersey Superior Court, Appellate Division. On July 25, 1977 the Appellate Division affirmed the lower court ruling by a two to one vote. On September 6,1977 a Notice of Appeal as of Right was filed with the Supreme Court of New Jersey. On December 8, 1977 the New Jersey Supreme Court denied cross motions for summary affirmance and reversal. Each side then briefed and orally argued the issue of the sealing delay. On February 2, 1979 the Supreme Court of New Jersey affirmed the dismissal of the post-conviction relief petition in an unanimous opinion authored by Justice Handler. State v. Cerbo, 78 N.J. 595, 397 A.2d 671 (Sup.Ct.1979). Petitioner now raises three grounds for habeas corpus relief; 1) the delay in the sealing of the tapes contrary to the language of N.J.S.A. 2A:156A-14, 2) “in the interests of justice”, and 3) alleged ineffective assistance of appellate counsel on direct appeal. The issue of the sealing delay was discussed by the Supreme Court of New Jersey. It is interesting to note that the Court in Cerbo did not: . subscribe to the conclusions of the majority of the Appellate Division that the provisions of N.J.S.A. 2A:156A-14 for the transfer and sealing of a completed wiretap tape were ministerial and that the failure of the investigating police officers to have turned over the completed wiretap tapes immediately to the issuing judge for such sealing was merely a technical violation of the Wiretap Act which would not justify barring their use as evidence at the criminal trial of defendants. Had defendants raised this issue in their prior appeal from their judgments of conviction, a reversal would have been warranted. Cerbo, 78 N.J. at 600, 397 A.2d at 673. For the first time, the New Jersey Court has adopted the view expressed in United States v. Gigante, 538 F.2d 502 (2d Cir. 1976) which followed the dissenting view of Judge Rosenn in United States v. Falcone, 505 F.2d 478, 485 (3d Cir. 1974), cert, denied 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975). The majority decision in Falcone is still the law in the Third Circuit and elsewhere notwithstanding the new rule announced in Cerbo, supra. The New Jersey Supreme Court’s denial of petitioner’s request for post-conviction relief was supported by reliance upon Alfano v. United States, 555 F.2d 1128 (2d Cir. 1977) which held that, “where extraordinary relief by writ of habeas corpus is sought, evidence of actual tampering is necessary. Id. at 1130, n.2. Habeas Corpus relief was denied in Alfano, yet the Second Circuit was careful not to disturb its prior holding in Gigante, supra. It appears that even in jurisdictions where strict compliance with sealing provisions is required, collateral attacks on convictions will not be sustained. Similarly, in McMillian v. United States, 558 F.2d 877 (8th Cir. 1977) a habeas corpus petition was denied with that court noting: . McMillian does not allege that the tapes admitted at trial were edited, altered, or otherwise conveyed an inaccurate account of his conversations. Accordingly, since the purpose of the sealing requirement is to protect the integrity of the tapes, the error here, if any there be, would be technical only and not of the magnitude cognizable in a (28 U.S.C.) § 2255 proceeding. Id. at 878-879. Petitioner herein has neyer challenged the authenticity of the tapes used against him, nor had he alleged any tampering. He relies on what the McMillian Court called a technical error. This does not rise to the constitutional dimension necessary for a writ of habeas corpus. Petitioner’s second ground states that he is entitled to relief “in the interests of justice.” The New Jersey Supreme Court’s ruling in Cerbo means that petitioner has successfully challenged the substantive law on the interpretation of N.J.S.A. 2A:156A-14, without reaping any personal benefit. Petitioner believes he should now benefit by the issuance of a writ. In denying post-conviction relief, the State Supreme Court relied upon the delicate balance between the effective adjudication of criminal matters versus the duty of the courts to insure fairness to individual defendants. There is little difference in the standard for this Court to apply when faced with a similar collateral attack. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) it was noted that: Resort to habeas corpus, especially for purposes other than to assure that no innocent person suffers an unconstitutional loss of liberty results in serious intrusion on values important to our system of government. They include “(i) the effective utilization of limited judicial resources, (ii) the necessity of finality in criminal trials, (iii) the minimization of friction between our federal and state systems of justice, and (iv) the maintenance of the constitutional balance upon which the doctrine of federalism is founded.” (citation omitted) Id. at 491, n.31, 96 S.Ct. at 3051 n.31. These balancing factors cannot be ignored on the assertion of a petitioner that his interests alone are those of justice. Petitioner’s third ground raises the issue of the effectiveness of his appellate counsel. This is a Sixth Amendment question. After petitioner was arrested his retained counsel raised the tape sealing delay in a motion to suppress evidence. This motion was denied. After conviction Cerbo could not afford to pay for trial transcripts, nor to keep his retained counsel. Thus appellate counsel was designated by the New Jersey Office of the State Defender. Petitioner asserts that both he and his retained counsel requested that the issue of the sealing delay be raised on the direct appeal of his conviction. This assertion is supported by affidavits and a copy of a letter now submitted to this Court. On August 11, 1975 the designated counsel filed an appellate brief which challenged the sufficiency of the affidavit used to procure the tapes, yet not the issue of the sealing delay. It should be noted that several other issues were raised and decided by the Superior Court, Appellate Division. See, State v. Benevento, (and Cerbo), 138 N.J.Super. 211, 350 A.2d 485 (App.Div.1975). The respondent suggests that because the Appellate Division published its opinion, the issues raised must have had some validity. This suggestion merits some consideration, yet it is not dispositive. In attempting to ascertain why appellate counsel did not follow the advice of his predecessor it is necessary to consider two factors. First, United States v. Falcone, supra, allowed the admission of tapes after a sealing delay of forty-five days. This was the prevailing view. Appellate counsel was faced with an adverse decision in the Third Circuit, presumably aware that Falcone had been denied certiorari to the United States Supreme Court on February 24, 1975. Secondly, the Judge who had originally sealed the tapes in this case was by then a justice on the New Jersey Supreme Court. These factors could easily have influenced what was essentially a tactical decision by the appellate counsel. In the Third Circuit the standard for adequacy of legal services, including tactical decisions, was articulated in Moore v. United States, 432 F.2d 730 (3d Cir. 1970) and restated in Boyer v. Patton, 579 F.2d 284 (3d Cir. 1978), as “the exercise of the customary skill and knowledge which normally prevails at the time and place.” This Court believes that the designated appellate counsel possessed the customary skill and knowledge for the time and place, August 1975 within the Third Circuit and State of New Jersey. It was nearly a year later when the Second Circuit rendered its decision in United States v. Gigante, supra, (Decided June 22, 1976) and not until February 9, 1979 did the New Jersey Supreme Court decide Cerbo, supra. Though it did follow the substantive rule in Gigante, the New Jersey Supreme Court concluded that: [t]he asserted mishandling of defendants’ appeal, however, does not, in our estimation, reach the proportions of a breach of any constitutional rights. Cerbo, 78 N.J. at 606, 397 A.2d at 676. It was further stated: (T)he sealing requirement, while important in terms of the statutory goals of the Wiretap Act and the statutory protections erected by the Legislation for the conduct of wiretapping, may not in a given case bear upon the guilt or innocence of a particular defendant or the fairness of the trial he is accorded. Thus, counsel may have perceived that an appeal based on violation of N.J.S.A. 2A:156A-14 in this case would have been futile. As observed in Alfano v. United States, supra, at 1131, “Counsel’s failure to focus on the delay in the sealing order is at most a classic example of ‘ineffectiveness by hindsight’ which should not afford a basis for collateral relief. See, e. g., Friendly, ‘Is Innocence Irrelevant? Collateral Attack on Criminal Judgments’, 38 U.Chi.L.Rev. 142 (1970). 78 N.J. at 607, 397 A.2d at 677. This Court is in agreement with the New Jersey Supreme Court; the petitioner has not demonstrated that his appellate counsel was constitutionally ineffective. Therefore petitioner fails to establish a violation of his Sixth Amendment right to effective assistance of counsel. For these reasons, this Court concludes that petitioner’s request for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 must be and hereby is denied. There is probable cause for appeal. Order attached. . Gigante involves the similarly worded federal statute found at 18 U.S.C. § 2518(8)(a).
1134989-9168	BONE, Circuit Judge. Appellant is a dealer in used tractors. On October 5, 1944, appellee-Administrator instituted an action against appellant alleging that appellant had sold used tractors at prices in excess of M.P.R. No. 133 and M.P.R. No. 136, both as amended. The Administrator, under Section 205(e) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 925(e) (hereinafter referred to as the Act), demanded damages in treble the amount of the overcharges, and, under Section 205(a) of the Act, asked for a final injunction enjoining appellant from violating the above Regulations or the Act. The district court ordered and entered judgment against appellant for the actual amount of the overcharges which the Administrator alleged, and granted an injunction. The appeal is from this judgment. It was stipulated by the parties that all the sales of crawler tractors here involved were made to farmers for general farming and agricultural uses, except one which was purchased for use in lumbering operations. Also that all of the sales in question, thirteen in number, were made in the period between August 1, 1943 and September 25, 1943, and that none of the purchases or sales was made for use and consumption other than in the course' of trade or business. Appellant raises three contentions on this appeal: First, that sales of crawler tractors to farmers during this period did not come within the scope of M.P.R. No. 136, and were, therefore, left subject to the G.M.P.R. Second, that if the sales do come under M.P.R. No. 136, then the Teresi and Badami sales were at prices under the ceilings provided by that Regulation, and that damages should not have been assessed upon those sales. Third, the issuance of an injunction was not proper in this case. First. M.P.R. No. 136, which controls the maximum sales prices for used crawler tractors, provided in § 1390.2 for exclusion, from its application, of certain types of sales. Among such exempted categories were sales defined in § 1390.2(f) which states: “Any sale or delivery at retail of a machine or part By a person other than the manufacturer thereof. * * * For the purpose of this exclusion, a sale or delivery is deemed to be ‘at retail’ (1) when made to an ultimate consumer, other than an industrial, commercial, or governmental user * * * Appellant claims that under a proper interpretation of this Section a farmer is not a commercial user, and, therefore, sales to him would be excluded from the scope of M.P.R. No. 136. However the Administrator has consistently interpreted M.P.R. No. 136 as covering sales to farmers. In Price Interpretation 17, dated November 15, 1942, it is said: “Repair Services on Tractors. The Regulation [M.P.R. No. 136] is applicable to repair services on industrial and crawler tractors, even though the tractors are used for agricultural purposes.” 8 O.P.A.Services, p. 40:2018. On September 1, 1943, the Administrator issued an interpretation of M.P.R. No. 136 as follows: “Crawler type tractor sold by one farmer to another. The sale of crawler tractor by one farmer to another is Subject to the regulation. Such a sale 'is not a sale ‘at retail’, except pursuant to Section 1390.2(f), because a farmer is a commercial user. A farmer is considered a commercial user, since he operates his farm as a commercial activity and purchases the equipment for use in carrying out that activity.” This interpretation is cited with approval and quoted in Bowles v. Trullinger, 9 Cir., 152 F.2d 191, 193. If the meaning of the words of an administrative interpretation is in doubt,, the court must look to the administrative construction of the regulation. And this-construction is “of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700; Bowles v. Crawford & Doherty Co., 9 Cir., 154 F.2d 431, 433. Certainly there is nothing erroneous or irrational in interpreting the word “commercial” as including farming activities. Farmers have been construed to be in a “trade or business” within the purview of Section 205(e) of the Act. Bowles v. Trullinger, supra, and cases cited, and see Speten v. Bowles, 8 Cir., 146 F.2d 602, 604 n. 5. The term “commercial” may have a broad or narrow meaning, and in its broad meaning it encompasses all business activities. United States v. Public Service Co., 10 Cir., 143 F.2d 79. Appellant directly attacks the Administrator’s interpretation of the language of Section 1390.2(f), maintaining that the phrase “industrial, commercial, or governmental user” should be construed narrowly. It cites cases which narrowly construed the word “commercial” or like words in similar phrases in variously unrelated statutes. Appellant claims that in the light of these cases, the phrase should be narrowly construed. In view of the Administrator’s interpretation, however, we do not find these cases persuasive. Appellant points to no inconsistent interpretations on the part of the Administrator. There was, however, a circular letter sent on July 10, 1943 to members of the trade including appellant by the “San Francisco district price specialist” which stated that a sale of a used crawler tractor to a farmer would be a sale at retail and therefore excluded from M.P.R. No. 136 and, instead, would come under the G.M.P.R. Appellant does not claim that this letter works an estoppel upon the Administrator, for a “district price specialist” is not an officer whose interpretation binds the Administrator. See O.P.A. Revised Procedural Regulation No. 1 (7 F.R. 8961, O.P.A.Service p. 310:51) §§ 54, 55(b); Wells Lamont Corp. v. Bowles, Em. App., 149 F.2d 364, 367; Schreffler v. Bowles, 10 Cir., 153 F.2d 1. It appears from the record, moreover, that appellant continued to set its prices by the formulas provided in M.P.R. No. 136, and not those in the G.M.P.R. Second. Appellant maintains that if M. P.R. No. 136 applies to these sales, still the sales to Teresi and Badami were at prices under the ceilings provided in that regulation since each sale was of a reconditioned tractor, guaranteed in writing and so invoiced. M.P.R. No. 136, § 1390.11(b) (1) provides that, as applicable to the tractors under consideration, the maximum price for a rebuilt, tested, and guaranteed machine, shall be 85% of the new base price, whereas under § 1390.11(c) (1) the legal price for such secondhand tractor, when not rebuilt and guaranteed, shall be only 55% of the new base price. § 1390.11 (2) which defines a rebuilt tested and guar anteed machine, is set out below. Appellant argues that the contract of sale to Teresi was itself an invoice and likewise contained “the written guarantee”. The same is said concerning the Badami sale. In the Teresi transaction, appellant endorsed -on the contract of sale the following notation: “with respect to the tractor and equipment herein ordered, the distributor or dealer makes to the purchaser the same and no other warranty than the following to wit: 90 days guarantee”. In the Badami sale, appellant endorsed, also on the contract of sale, the remark: “The distributor or dealer makes to the purchaser the same and no other warranty than the following to wit: 2 months on faulty material”. Assuming, without deciding, that a contract of sale and an invoice may be merged in one instrument (under § 1390.11 (2)) it is our view that the sketchy notations on these contracts fail to measure up to all of the requirements of a rebuilt and guaranteed machine specified in this regulation (see footnote 3). Its requirements are plain, simple and direct, and we can not say that appellant complied with them by the merged invoice and contract here employed. Going beyond this, the facts in the case do not show that the tractors in question come within the requirements of § 1390.11(2). It does not appear that anything was spent in repairing the Teresi tractor before its sale. Some $244.00 in free service was spent by appellant on the tractor within the 90 day guarantee period. The regulation, however, requires the machine to be “rebuilt” before the sale. Appellant did expend $50.23 in reconditioning the Badami tractor. However, in neither case does it appear from the evidence that the tractors were invoiced as “rebuilt”, nor does it appear that they were tested under power. Third. Appellant lastly maintains that an injunction was not proper under the facts in this case. It relies principally upon Bowles v. Arlington Furniture Co., 7 Cir., 148 F.2d 467. In that case the Circuit Court found that, at best, there was merely a technical violation, that the company had taken all reasonable steps to protect against violations, and to cooperate with the OPA, and that an injunction would serve no useful purpose since the company was out of business. In the present case, appellant has been guilty of thirteen different overcharges, and, the record shows, has failed to keep many records required by the applicable regulations. We cannot say that the District Court abused its discretion. See Bowles v. 870 Seventh Ave. Corp., 2 Cir., 150 F.2d 819. Judgment affirmed.
3572919-11716	OPINION DAVID W. HOUSTON, III, Bankruptcy Judge. On consideration before the court is a motion for partial summary judgment filed by the plaintiff, Merchants Financial Services Group, LLC, (“Merchants”); a response thereto having been filed by the defendant, Thomas Smith, (“debtor”); and the court, having considered same, hereby finds as follows, to-wit: I. The court has jurisdiction of the parties to and the subject matter of this proceeding pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157. This is a core proceeding as defined in 28 U.S.C. § 157(b)(2)(I) and (J). II. On September 1, 2004, the debtor filed a petition for relief under Chapter 7 of the United States Bankruptcy Code, Case No. 04-15439. Merchants filed a complaint objecting to the debtor’s discharge, as well as, to deny the discharge-ability of its debt, all pursuant to 11 U.S.C. § 727(a)(3), § 523(a)(2)(A), and § 523(a)(4). The court would point out that the motion for partial summary judgment filed by Merchants asserts that summary judgment should be granted pursuant to 11 U.S.C. § 523(a)(6). Merchants’ complaint does not include § 523(a)(6) as a cause of action for non-dischargeability. Therefore, the court will not consider § 523(a)(6) in this decision. Pursuant to a universal promissory note, dated November 28, 2002, Royalty, Incorporated, (“Royalty”), became indebted to Merchants in the original principal sum of $3,300,000.00. Royalty assigned to Merchants certain rental purchase agreements as security for the aforesaid indebtedness. Royalty was to collect the payments due under the rental purchase agreements and remit them to Merchants for application to the indebtedness. Royalty subsequently defaulted in making its payments, and the balance owed by Royalty at the time the debtor, Thomas Smith, filed bankruptcy was $3,015,592.12, plus interest and attorney fees. The debt was personally guaranteed by Smith who was the President of Royalty. The complaint alleges that the debtor collected approximately $200,000.00 in payments from the assigned rental purchase agreements and did not remit these proceeds to Merchants. The complaint also states that the debtor was in a fiduciary relationship with Merchants and was obligated to hold the collected payments in trust for the benefit of Merchants. Merchants relies on certain statements, made by the debtor as the designated corporate representative in Royalty’s Rule 30(b)(6) deposition, as the primary basis of its motion for partial summary judgment. Merchants specifically points to the fact that the debtor admitted that $250,000.00 in funds collected by Royalty were used for purposes other than making the required payments to Merchants. As such, Merchants contends that the debtor should not be entitled to obtain a discharge of this portion of the debt that he guaranteed. Merchants also asserts that the debtor violated the fiduciary duties that he owed to Merchants by collecting and spending funds in violation of the assignment agreement. III. Summary judgment is properly granted when pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Bankruptcy Rule 7056; Uniform Local Bankruptcy Rule 18. The court must examine each issue in a light most favorable to the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Phillips v. OKC Corp., 812 F.2d 265 (5th Cir.1987); Putman v. Insurance Co. of North America, 673 F.Supp. 171 (N.D.Miss.1987). The moving party must demonstrate to the court the basis on which it believes that summary judgment is justified. The non-moving party must then show that a genuine issue of material fact arises as to that issue. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291 (5th Cir.1987), Putman v. Insurance Co. of North America, 673 F.Supp. 171 (N.D.Miss.1987). An issue is genuine if “there is sufficient evidence favoring the nonmoving party for a fact finder to find for that party.” Phillips, 812 F.2d at 273. A fact is material if it would “affect the outcome of the lawsuit under the governing substantive law.” Phillips, 812 F.2d at 272. The court notes that it has the discretion to deny motions for summary judgment and allow parties to proceed to trial so that the record might be more fully developed for the trier of fact. Kunin v. Feofanov, 69 F.3d 59, 61 (5th Cir.1995); Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir.1994); Veillon v. Exploration Services, Inc., 876 F.2d 1197, 1200 (5th Cir.1989). IV. The court will address the motion for partial summary judgment exclusively on the issue of whether the debtor perpetrated a fraud against Merchants while acting in a fiduciary capacity as contemplated by § 523(a)(4) of the Bankruptcy Code. Merchants contends that the debt- or occupied the position of a fiduciary because he signed a personal guaranty of the indebtedness owed by Royalty to Merchants and was, throughout the relevant period, the chief operating officer of Royalty. Collier on Bankruptcy, § 523.10[l][e], addresses the characteristics necessary to constitute a “fiduciary capacity” as follows: The mere fact that state law places two parties in relationship that may have some of the characteristics of a fiduciary relationship does not necessarily mean that the relationship is a fiduciary relationship under 11 U.S.C. § 523(a)(4), which requires the existence of express or technical trust. As one court has observed: [Cjase authority recognizes that the traditional definition of “fiduciary” is not applicable in defining “fiduciary capacity” under section 523(a)(4). The general meaning of a fiduciary — a relationship involving confidence, trust and good faith — is far too broad for the purposes of section 523(a)(4).... The Supreme Court favors a narrow construction of the term “fiduciary capacity” and defines the term as meaning arising from an express or technical trust. ... Thus, unless there exists some additional fact, section 523(a)(4), as it relates to a debtor acting in a fiduciary capacity, does not generally apply to frauds of agents, bailees, brokers, factors, and partners, and other persons similarly situated. Certain relationships are generally recognized as involving fiduciary obligations within the meaning of section 523(a)(4). Bank officers, executors and administrators, guardians, receivers, the president of a private corporation entrusted with funds for a particular purpose, the sole manager of a joint venture’s affairs, and, of course, other technical trustees have been held to be acting in a fiduciary capacity within the meaning of this provision. See In re Nored, 302 B.R. 833, 841-42 (Bankr.N.D.Miss.) 2003. Merchants states “[ajdmittedly, the debtor collected in excess of $250,000.00 in proceeds and payments from the assigned rental purchase agreements and did not pay them to Merchants as required.” Rule 30(b)(6) of the Federal Rules of Civil Procedure, made applicable to this proceeding by Rule 7030, Federal Rules of Bankruptcy Procedure, provides as follows: (6) A party may in the party’s notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or man aging agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules, (emphasis added) The debtor, as Royalty’s Rule 30(b)(6) representative, admitted that Royalty collected approximately $250,000.00 in payments from the assigned rental purchase agreements and did not pay them to Merchants. He indicated that Royalty used these payments for normal operating expenses in furtherance of continuing its business relationship with Merchants. The debtor did not testify that he personally orchestrated the acts of failing to remit the collections to Merchants, only that it was, in fact, done by Royalty. The connectivity to the debtor individually is just too thin to justify a decision in favor of Merchants on the basis of a motion for partial summary judgment. The record needs to be further developed by additional, relevant testimony. In addition, considering the above authorities, there are also genuine issues of material fact remaining in dispute as to whether a fiduciary relationship existed between Merchants and the debtor. Therefore, the motion for partial summary judgment is not well taken and cannot be sustained. A separate order, consistent with this opinion, will be entered contemporaneously herewith. . This amount exceeds the amount specified in Merchants' complaint by $50,000.00. . In re Twitchell, 91 B.R. 961, 964-65 (D.Utah 1988), citing Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 153, 79 L.Ed. 393 (1934); accord Fowler Bros. v. Young (In re Young), 91 F.3d 1367 (10th Cir.1996); In re Librandi, 183 B.R. 379 (M.D.Pa.1995); In re Kaplan, 162 B.R. 684, 704 (Bankr.E.D.Pa.1993); aff'd, 189 B.R. 882 (E.D.Pa.1995). . In re Grabau, 151 B.R. 235 (Bankr.N.D.Cal.1991), aff'd in part, rev’d on other grounds, 151 B.R. 227, 229 (N.D.Cal.1993); Air Traffic Conference of America v. Paley (In re Paley), 8 B.R. 466, 3 C.B.C.2d 648 (Bankr.E.D.N.Y.1981); Borg-Warner Acceptance Corp. v. Miles (In re Miles), 2 C.B.C.2d 892, 5 B.R. 458 (Bankr.E.D.Va.1980); Angelle v. Reed (In the Matter of Angelle), 610 F.2d 1335 (5th Cir.1980); Devaney v. Dloogoff (In the Matter of Dloogoff), 600 F.2d 166 (8th Cir.1979). . See generally George Busby Ford., Inc. v. Ross, 62 Tenn.App. 80, 459 S.W.2d 46 (1970). . See In Re Maynard, 153 B.R. 933 (Bankr.M.D.Fla.1993); In re Danahy, 45 F.Supp. 758 (W.D.N.Y.1942). . In re Adler, 152 F. 422 (2d Cir.1907). . In re Spector, 26 C.B.C.2d 161, 133 B.R. 733, (Bankr.E.D.Pa.1991); In re Tocci, 9 C.B.C.2d 636, 34 B.R. 66 (Bankr.S.D.Fla.1983), modified, 39 B.R. 1000 (Bkrtcy. S.D.Fla.1983) But see, LSP Investment Partnership v. Bennett (Matter of Bennett), 989 F.2d 779, 28 C.B.C.2d 1446 (5th Cir.1993), cert. denied, 510 U.S. 1011, 114 S.Ct. 601, 126 L.Ed.2d 566 (1993); Ragsdale v. Haller, 780 F.2d 794 (9th Cir.1986). See also Johnson v. Woldman, 29 C.B.C.2d 1542, 158 B.R. 992 (N.D.Ill.1993). . Matter of Woldman, 92 F.3d 546 (7th Cir.1996) (no fiduciary relationship created by agreement of attorney to pay referral fee to another attorney); Barclays Am./Business Credit, Inc. v. Long (In re Long), 774 F.2d 875, 13 C.B.C.2d 1036 (8th Cir.1985). See also Driggs v. Black (In re Black), 787 F.2d 503, 14 C.B.C.2d 1215 (10th Cir.1986) (defalcation claim failed because the debtor as a corporate officer did not stand in a fiduciary capacity to the minority shareholder individually when the acts complained of occurred); In re McKinney, 151 B.R. 944 (Bankr.N.D.Okla.1993); Matter of Touchstone, 149 B.R. 721 (Bankr.S.D.Fla.), modified, 153 B.R. 955 (Bkrtcy.S.D.Fla.1993) . [Reserved] . Harper v. Rankin, 141 F. 626, cert. denied, 200 U.S. 621, 26 S.Ct. 758, 50 L.Ed. 624 (1906). . In re Reed, 155 B.R. 169 (Bankr.S.D.Ohio 1993).
3612295-28571	ORDER Sharon Schreiber suffers from several mental impairments and applied for disability insurance benefits under the Social Security Act, 42 U.S.C. § 423(d). After holding an evidentiary hearing, an administrative law judge found that Schreiber was not disabled. On appeal, Schreiber challenges the ALJ’s evaluation of the opinion of Schreiber’s treating psychiatrist, adverse credibility determination, and failure to analyze Schreiber’s fatigue and panic attacks in determining her residual functional capacity. Bearing in mind the deferential standard of review that applies, see 42 U.S.C. § 405(g), we conclude that • substantial evidence supports the ALJ’s decision and therefore affirm the denial of benefits. Schreiber applied for disability insurance benefits on September 7, 2006, contending that psychological problems, including bipolar disorder, anxiety, and depression, rendered her unable to work. Schreiber has been receiving treatment from her psychiatrist, Dr. Mary E. Belford, M.D., since 1995. Pri- or to December 2005, Schreiber was successfully taking medication for anxiety and depression. She felt well enough to wean herself off of Paxil, start taking St. John’s Wort, and open her own business — a combination coffee shop and video store. The stress of opening and running a business proved too much, however, and on December 19, 2005, Schreiber visited Dr. Belford’s office and reported that she was “a mess.” She said that running the store on her own and problems with her daughter caused her to cry constantly, lose her appetite, sleep poorly, and suffer from mood swings and low self-esteem. The treatment notes from this visit indicate that she was anxious, moderately depressed, tearful, and had impaired judgment and insight. Schreiber was diagnosed with moderate mixed bipolar disorder and prescribed Xanax (used to treat anxiety and panic disorder) and Trileptal (an anti-convulsant and mood-stabilizing drug). In January 2006, Schreiber reported similar symptoms and continued problems with the store she had opened, which was now closed. She said that her family had many bills because of the store and that she had “made a mess of things.” Dr. Belford found that Schreiber still showed impaired judgment and insight and was agitated and anxious, and modified Schreiber’s medications, increasing the dosage of Schreiber’s Xanax and replacing the Trileptal with Effexor (an anti-depressant). In February, Schreiber improved: she reported that although she still had some residual anxiety and concentration problems, she was feeling better and working through some of the problems with the business, which she had allowed a neighbor to take over. Dr. Belford added Zy-prexa (an anti-psychotic medication) to Schreiber’s medications. This improvement was short-lived, however. In April, Schreiber reported to Dr. Belford that she was continuing to have problems with the business and her old symptoms were returning. On April 21, 2006, Schreiber was hospitalized for five days after reporting that she woke up every morning disappointed that she was not dead. She complained of overwhelming anxiety, mood swings, lack of concentration, and weight and sleep loss. Schreiber was diagnosed as having bipolar disorder and panic disorder. The following month, on May 15, 2006, Schreiber was again seen at the hospital after reporting thoughts of suicide. She complained of her prior symptoms and was diagnosed with major depressive disorder and encouraged to continue with her medications and attend group therapy. Schreiber continued to see Dr. Belford over the course of the next few months. In June, Schreiber reported that she was miserable and stressed about her family’s financial situation: the auction of her business was to be held this month, and her daughter had recently lost her medical insurance and had unpaid bills. Dr. Bel-ford noted that Schreiber complained of anhedonia, anxiety, loss of appetite, excessive crying, and decreased energy levels, and had stopped taking Xanax or Zyprexa. She modified Schreiber’s medication, prescribing Geodon (an anti-psychotic medication used to treat bipolar disorder) and Depakote (an anti-seizure medication used to treat bipolar disorder), and advised her to follow up in a month. In July, Schreiber had recently returned from a camping trip with her husband and reported that many of her symptoms had improved. She was eating and sleeping better, had no depression or anxiety, and denied anhedonia, but she still suffered from crying spells, low energy, and noticed that she was quick to anger. Dr. Belford advised Schreiber to attend counseling; Schreiber had been seeing a therapist, but thought her insurance benefits had run out for the year. After confirming that her benefits had been restored, Schreiber said that she would restart therapy. At her visit to Dr. Belford in September, Schreiber reported increased anxiety and a loss of appetite, and said she was still stressed by her family’s financial situation and her relationship with her daughter. She also said she was still not in therapy despite being referred to the therapist several times, but indicated that “this time she [wa]s really going.” Dr. Belford continued Schreiber on Klonopin and Effexor and increased the dosage of her Lamictal fan anti-seizure medication used to treat bipolar disorder). In November, Schreiber reported that she was doing somewhat better, but said she still felt numb and did not want to do anything. On November 14, 2006, Schreiber attended a psychological examination with Dr. Erwin Baukus, Ph.D., a clinical psychologist, at the request of the state agency in connection with her application for benefits. At the examination, Schreiber complained of symptoms of depression and generalized persistent anxiety. Dr. Bau-kus inquired into her level of daily functioning and examined her mental status, including her mood and affect, speech, thought process, and mental capacity. Based upon the clinical examination and his review of Schreiber’s treatment records, Dr. Baukus diagnosed Schreiber with bipolar disorder, current episode depressed, with anxiety. He opined that she was able to manage funds on her own behalf. Eight days later, Dr. Russell Taylor, Ph.D., a psychologist, reviewed Dr. Bel-ford’s treatment records and the notes from Dr. Baukus’ consultative examination on behalf of the state agency. He opined that Schreiber had bipolar disorder with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes. Dr. Taylor concluded that this disorder caused mild restriction of activities of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and one or two episodes of decompensation of extended duration. Dr. Taylor com- eluded that Schreiber was capable of understanding, remembering, and carrying out simple tasks on a sustained basis, but would require a work setting with limited social or interpersonal demands. Dr. Taylor also found that Schreiber would be able to adjust to simple changes in the work setting. Dr. Ronald Havens, Ph.D., reviewed and affirmed Dr. Taylor’s opinions on February 26, 2007. On January 10, 2007, Schreiber returned to see Dr. Belford. In her notes, Dr. Belford observed that while many of Schreiber’s symptoms had improved, she was “definitely not back to her usual self,” and adjusted her medications. In March, Schreiber reported to Dr. Belford that nearly all of her symptoms had improved and that she was finally feeling more like herself. She said she was engaging in counseling and found it to be very helpful. At a follow-up appointment in May, Schreiber said that she was feeling better, and Dr. Belford noted that while Schreiber “still has some roller coaster left,” she was generally doing better. Schreiber was trying to make healthy lifestyle choices, was gardening again, and planned to resume counseling after getting off schedule due to vacations. Dr. Belford filled out a form regarding Schreiber’s ability to work in June 2007. Dr. Belford opined that Schreiber’s ability to understand, remember, and carry out instructions were affected by her mental impairments, and opined that Schreiber had either “poor” or “fair” abilities in the 23 functional work activities enumerated on the form. Dr. Belford also opined that Schreiber’s impairments affected her ability to respond appropriately to supervision, coworkers, and work pressures in a work setting She stated that her opinions were based , on a “clinical interview,” but she provided no details regarding the interview. In August 2007, Schreiber returned to see Dr. Belford, who noted that Schreiber was much improved from a year prior. Schreiber reported that her anxiety was triggered “once in a while” and that her family’s finances were still extremely tight, leading to stress regarding the cost of an upcoming vacation. Dr. Belford noted that Schreiber’s emotional foundation was better due to her medication and that her moods were “nowhere near as reactive and out of control” as they were in the past. She told Schreiber to continue with her medications. At her November follow-up visit, Schreiber reported general improvement, but said that she was still on an “emotional roller coaster.” She explained that winter was always a more difficult time for her, and that she had difficulty leaving the house and had not followed up on Dr. Belford’s counseling recommendation. Schreiber informed Dr. Belford that she was not taking much Xanax and had not refilled her last prescription. At her last appointment with Dr. Bel-ford in the record, on February 27, 2008, Schreiber reported that she was “doing pretty well”: she had increased energy and motivation levels and her anxiety was under control. At the hearing for her application for benefits in May 2008, Schreiber testified that she was 43 years old, married, and living with her husband and son. She said that she last worked in December 2005 when she tried to open and run the business that she ultimately closed and sold after suffering a breakdown. According to Schreiber, her typical day involves waking her son up around 7:00 a.m., getting him ready, and driving him school. She said that she usually returns home by 8:30 a.m., and sometimes will lié down until around noon if she feels tired. On her good days, she said she will sit on the couch, visit her mother, or go online to chat with others who share her condition. She said that she gardens about once a week, does a minimal amount of household chores, and sometimes does the grocery shopping. In the afternoon, she tries to help her son with his homework and get the kitchen ready so she or her husband can cook when he returns home. In the evenings, Schreiber said that she spends time with her family and watches television. Schreiber said that she sees friends about once every two weeks and has one friend with whom she talks on the phone every day. Regarding her impairments, Schreiber testified that she experiences panic, anxiety, and mood swings that make it difficult for her to be around people. She said she has problems with her concentration and ability to maintain focus and believes that she is only capable of being productive for about two hours a day. She said that she averages at least two panic attacks per day, and that each attack can last for a few hours. Schreiber also said that about two or three times per month she has prolonged panic attacks that require a day or two to recover. She said that she takes Xanax when she has the panic attacks, but that it makes her very tired and incapable of doing anything for the remainder of the day. Schreiber testified that she had been seeing Dr. Belford since 1995, usually for fifteen minutes once every two or three months. She said that she had seen a therapist on-and-off for about six months on a weekly basis, but that she discontinued the therapy because she did not find it helpful. She was also in daily group counseling for a few weeks in 2007. Schreiber testified that she has been on a variety of medications and, at the time of the hearing, was taking Effexor, Lamictal, Geodon, Xanax, and naproxen sodium. She said that the medications have helped her, but that they have not completely cured her bipolar disorder. She also said that the medications have caused side effects including blurred vision, heart palpitations, grogginess, and weight fluctuation. A vocational expert testified that a person of Schreiber’s age, education, and work history, who was limited to simple tasks in a setting with limited social or interpersonal demands and with no more than simple changes in the work setting, could do Schreiber’s past relevant work as an assembler or machine operator. If Schreiber were found to be credible regarding her description of her impairments, however, the vocational expert testified that she could not sustain full-time employment because her panic attacks would take her off task for too much of the workday. The ALJ concluded that Schreiber was not disabled and denied her claim for benefits after applying the familiar five-step evaluation process, see 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ concluded that Schreiber had not worked since her alleged onset date. At steps two and three, the ALJ concluded that Schreiber suffered from the severe impairments of bipolar disorder, anxiety, and depression, but that these impairments or a combination of impairments did not meet or equal a listed impairment. At step four, the ALJ evaluated Schreiber’s residual functional capacity, or the measure of the abilities Schreiber retained despite her impairments. 20 C.F.R. § 404.1545(a). The ALJ found that Schreiber had the residual functional capacity to perform work at all exertional levels, but that she must be limited to simple tasks in a setting with limited social or interpersonal demands and no more than simple changes in the work setting. In determining Schreiber’s residual functional capacity, the ALJ found that Schreiber’s impairments could produce the symptoms Schreiber alleged, but that her “statements concerning the intensity, persistence, and limiting effects of [her] symptoms are not credible to the extent they are inconsistent with the residual functional capacity assessment[.]” The ALJ noted that Schreiber suffered from bipolar disorder with depression and anxiety that had been characterized by mood swings, sleep and appetite disturbances, anxiousness, crying spells, feelings of hopelessness, and decreased energy and impaired concentration. Nevertheless, he found that the record established that Schreiber’s condition and symptoms, while not resolved, had improved since her hospitalization in 2006. He noted the evidence in the record indicating that Schreiber could perform a wide-variety of activities of daily living and that Schreiber was consistently described as alert and oriented, as well as the lack of evidence supporting her claims of significant side effects from her medication. The ALJ also cited the opinions of Dr. Taylor and Dr. Havens in support of his residual functional capacity determination, but he discounted Dr. Belford’s assessment of Schreiber’s ability to do work-related activities. The ALJ found Dr. Bel-ford’s assessment “unpersuasive” because it was conclusory, inconsistent with other evidence of record, and inadequately described the clinical findings to support the limitations Dr. Belford found. Based on Schreiber’s residual functional capacity, the ALJ found that Schreiber could do her past relevant work and was therefore not disabled; the ALJ did not proceed to step five of the analysis. See 20 C.F.R. § 404.1520(a)(4)(iv). When the Appeals Council denied review, the ALJ’s decision became the final decision of the Social Security Commissioner, and Schreiber brought an action in the district court seeking judicial review of the Commissioner’s final decision. The district court affirmed the Commissioner’s decision, and Schreiber appealed. We review de novo the district court’s judgment affirming the Commissioner’s final decision, Castile v. Astrue, 617 F.3d 923, 926 (7th Cir.2010), and will uphold the Commissioner’s decision if the ALJ applied the correct legal standards and supported her decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir.2011). Substantial evidence is “evidence a reasonable person would accept as adequate to support the decision.” Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir.2006). “When reviewing for substantial evidence, we do not displace the ALJ’s judgment by reconsidering facts or evidence or making credibility determinations.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.2007). A decision denying benefits need not address every piece of evidence, but the ALJ must provide “an accurate and logical bridge” between the evidence and her conclusion that a claim ant is not disabled. Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir.2012). On appeal, Schreiber’s challenges to the ALJ’s decision focus on his assessment of Schreiber’s residual functional capacity at step four. Schreiber’s primary argument is that the ALJ improperly rejected the opinions of her treating psychiatrist, Dr. Belford, and failed to discuss adequately his refusal to credit her assessment. Under the “treating physician rule,” a treating physician’s opinion that is consistent with the record is generally entitled to “controlling weight.” 20 C.F.R. § 404.1527(c)(2); Jelinek, 662 F.3d at 811. However, an ALJ need not blindly accept a treating physician’s opinion: an ALJ “may discount a treating physician’s medical opinion if the opinion is inconsistent with the opinion of a consulting physician or when the treating physician’s opinion is internally inconsistent, as long as he minimally articulates his reasons for crediting or rejecting evidence of disability.” Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir.2007) (internal quotations marks and citation omitted). Here, we find that the ALJ adequately explained his reasons for discounting Dr. Belford’s opinion that Schreiber had a poor ability to perform a number of work-related tasks. The ALJ was particularly troubled by the “conclusory” nature of Dr. Belford’s assessment and her failure to describe the clinical findings that supported the significant limitations she found other than a reference to a “clinical interview.” Schreiber argues that Dr. Belford did not need to include clinical findings to support her assessment given her long history of treating Schreiber and the many treatment notes indicating that Schreiber suffered from significant bipolar symptoms. But the ALJ recognized that Dr. Belford had been treating Schreiber for a number of years and consulted Dr. Bel-ford’s treatment notes to see if they supported her opinions. The ALJ found that the notes, which indicated improvement in Schreiber’s condition with medication and counseling, were inconsistent with the significant limitations in Dr. Belford’s assessment. He also found her assessment inconsistent with the level of treatment she provided Schreiber — a fifteen-minute visit every two to three months. Additionally, the ALJ noted that Schreiber’s own reported activities of daily living and the opinions of Dr. Taylor and Dr. Havens were inconsistent with Dr. Belford’s assessment of Schreiber’s limitations. Although Schreiber acknowledges that the treatment notes indicate some improvement in her condition, she argues that the ALJ improperly focused on the positive reports in the treatment notes and failed to recognize the episodic nature of bipolar disorder. She points out that Dr. Belford’s notes discussing improvement in Schreiber’s condition were usually qualified by observations indicating that Schreiber was “not back to her usual self’ and that she still suffered from significant symptoms. She likens her situation to that of the claimant in Bauer v. Astrue, 532 F.3d 606 (7th Cir.2008). In Bauer, the claimant was diagnosed as bipolar and, though prescribed a variety of antipsychotic drugs, was hospitalized several times with hallucinations, racing thoughts, thoughts of suicide, and other symptoms of bipolar disorder. Id. at 607. The claimant testified that she had been fired from her job because her condition prevented her from working, and both her treating psychiatrist and treating psychologist opined that she could not hold down a full-time job. Id. The ALJ, however, gave these opinions little weight based on reasons that indicated that the ALJ lacked familiarity with bipolar disorder, such as a few hopeful remarks in the claimant’s treatment notes, and selective citations to the claimant’s testimony regarding her activities of daily living. Id. at 608-09. Given the claimant’s medical history and the lack of any indication that the treating doctors erred in the analysis supporting their opinions, we found the ALJ’s reliance on the hopeful remarks as a basis to discount their opinions problematic, noting that: A person who has a chronic disease, whether physical or psychiatric, and is under continuous treatment for it with heavy drugs, is likely to have better and worse days; that is true of the plaintiff in this case. Suppose that half the time she is well enough that she could work, and half the time she is not. Then she could not hold down a full-time job.... That is likely to be the situation of a person who has bipolar disorder that responds erratically to treatment. Id. at 609 (internal citations omitted). The ALJ overlooked this aspect of the claimant’s bipolar disorder in Bauer, and so we remanded the case. Schreiber contends that we should take the same course here. We disagree. Although we continue to emphasize the necessity of taking into account the episodic nature of many chronic conditions, Bauer is distinguishable from this case. Here, the ALJ did more than rely on “hopeful remarks” in Schreiber’s treatment notes to paint an overly-rosy view of her condition. The ALJ recognized that Schreiber suffered an “episode of decompensation” — or a temporary increase in symptoms “accompanied by a loss of adaptive functioning,” see Larson v. Astrue, 615 F.3d 744, 750 (7th Cir.2010) (defining “episode of decom-pensation”) — beginning in December 2005 and culminating in her hospitalization in April 2006. But he concluded that the evidence of record indicated that Schreiber had experienced improvement with treatment since that period. This is not to say that he found that Schreiber was “all better”; rather, he recognized that Schreiber still struggled with her bipolar disorder and that it caused limitations on her ability to work and relate to others. Nevertheless, after considering all of the medical evidence, including treatment notes from Dr. Belford, the assessment by Dr. Bau-kus, and the reports from Dr. Taylor and Dr. Havens, as well as Schreiber’s own testimony regarding the improvement in her condition, the ALJ found that Schreiber’s symptoms had improved over time, and we conclude that this finding was supported by substantial evidence. Schreiber also argues that the ALJ failed to properly analyze Dr. Belford’s opinion because he did not specifically address each factor set forth in 20 C.F.R. § 404.1527. When an ALJ chooses to reject a treating physician’s opinion, she must provide a sound explanation for the rejection. See 20 C.F.R. § 404.1527(c)(2); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.2010). Here, while the ALJ did not explicitly weigh each factor in discussing Dr. Belford’s opinion, his decision makes clear that he was aware of and considered many of the factors, including Dr. Bel-ford’s treatment relationship with Schreiber, the consistency of her opinion with the record as a whole, and the supportability of her opinion. See 20 C.F.R. § 404.1527(c). While we may not agree with the weight the ALJ ultimately gave Dr. Belford’s opinions, our inquiry is limited to whether the ALJ sufficiently accounted for the factors in 20 C.F.R. § 404.1527, see Elder v. Astrue, 529 F.3d 408, 415-16 (7th Cir.2008) (affirming denial of benefits where ALJ discussed only two of the relevant factors laid out in 20 C.F.R. § 404.1527), and built an “accurate and logical bridge” between the evidence and his conclusion. We find that deferential standard met here. Schreiber also argues that the ALJ erred in analyzing Dr. Belford’s opinions because he misstated the record in reaching his conclusion that the “record contains no treatment notes since January of 2007 that would establish any significant worsening of [Schreiber’s] condition.” Specifically, the ALJ noted that the most recent treatment note in the record was from January 2007, when, in fact, the last treatment note was from February 2008. Schreiber also raised this argument before the district court, and we agree with the district court that any error in the ALJ’s failure to address the treatment notes from Schreiber’s appointments with Dr. Belford during the rest of 2007 and February 2008 was harmless. See Keys v. Barnhart, 347 F.3d 990, 994-95 (7th Cir.2003) (applying harmless error analysis to claim for disability benefits). As our discussion above indicates, those notes demonstrate continued improvement in Schreiber’s condition and symptoms aside from some stress about how to pay for a vacation and emotional anxiety caused by the onset of winter. Thus, this is unlike the cases Schreiber cites in which the ALJ ignored evidence that contradicted his ultimate conclusion, see Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir.2003), or “pick[ed] and cho[se] among the pieces of evidence,” see Binion v. Chater, 108 F.3d 780, 788-89 (7th Cir.1997). Accordingly, while we are concerned that the ALJ failed to discuss over a year’s worth of treatment notes, we will not remand the case on this ground because the notes supported the ALJ’s finding that the “record contains no treatment notes since January of 2007 that would establish any significant worsening of [Schreiber’s] condition.” Schreiber also challenges the ALJ’s credibility assessment. An ALJ’s credibility assessment is afforded special deference because the ALJ is in the best position to see and hear the witness and determine credibility. Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir.2000) (citation omitted). When reviewing an ALJ’s credibility determination, we are limited to examining whether the ALJ’s determination was “reasoned and supported,” Elder, 529 F.3d at 413-14 (citations omitted), and will overturn the determination only if it is “patently wrong.” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir.2008) (citation omitted). “It is only when the ALJ’s determination lacks any explanation or support that we will declare it to be patently wrong and deserving of reversal.” Elder, 529 F.3d at 413-14 (internal quotation marks and citations omitted). Nevertheless, the ALJ is still required to “build an accurate and logical bridge between the evidence and the result[.]” Castile, 617 F.3d at 929 (internal quotation marks and citation omitted). “In analyzing an ALJ’s opinion for such fatal gaps or contradictions, we give the opinion a commonsensical reading rather than nitpicking at it.” Id. In determining the credibility of a claimant, SSR 96-7p instructs the ALJ to “consider the entire case record” and requires a credibility determination to “contain specific reasons for the finding on credibility, supported by the evidence in the case record[.]” SSR 96-7p, 1996 WL 374186 at *4. An ALJ should consider elements such as “objective medical evidence of the claimant’s impairments, the daily activities, allegations of pain and aggravating factors, functional limitations, and treatment (including medication).” Prochaslca, 454 F.3d at 738 (citations omitted). Here, the ALJ considered these factors and found that Schreiber’s testimony regarding her symptoms and their functional effect were not fully credible. He pointed out that Schreiber’s claims of significant side effects from her medication were inconsistent with the medical record (most of the treatment notes indicated no medication side effects at all); Schreiber herself testified to the improvement in her symptoms with treatment; and the evidence, including Schreiber’s testimony and Dr. Baukus’ examination report, indicated that Schreiber took care of her activities of daily living and cared for her children, shopped, and did household chores.
4006528-20994	MEMORANDUM OPINION RICHARD J. LEON, District Judge. Plaintiff, UtahAmeriean Energy, Inc., brings this action against the United States Department of Labor (“DOL”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. (2006) seeking records that the DOL compiled in the course of an investigation. The case is now before this Court on the parties’ cross-motions for summary judgment. After careful review of the motions, applicable law, and the entire record herein, the Court has concluded that the DOL has complied with some, but not all, of its FOIA obligations in this case. Accordingly, both motions are GRANTED in part and DENIED in part. BACKGROUND This case arises out of the tragic collapse of the Crandall Canyon Mine in Price, Utah, on August 6, 2007. Six miners were killed that day. (Compl. ¶ 7.) Ten days later, while rescue operations were still ongoing, a second accident occurred at the mine which caused the death of three rescuers. (Id.) Naturally, these two events became the subject of multiple investigations by various government entities. First, the accident was investigated by the Mining Safety & Health Administration (“MSHA”), the agency located within the DOL which is authorized by statute to investigate matters of mine safety. 30 U.S.C. § 813(a). In addition, as a form of self-evaluation, the DOL set up an Independent Review Team (“IRT”) to investigate the adequacy of the MSHA investigation. (See Declaration of George M. Fesak (“Fesak Decl.”) ¶ 20.) Next, the two accidents became the subject of an investigation and hearings held by Congressional committees in both the House and the Senate. (Pl.’s Cross-Mot. [# 13] at 5.) Finally, both the DOL and the Committee of Education and Labor in the House of Representatives issued criminal referrals on August 27 and April 29, 2008, respectively, to the Department of Justice concerning potentially false and misleading statements made before and after the accidents. (Fesak Decl. Ex. J, Declaration of Brett L. Tolman, United States Attorney for the District of Utah (“Tolman Decl.”) ¶¶ 3, 9.) These subjects are still being investigated by the United States Attorney for the District of Utah. (Id.) In this case, UtahAmerican seeks documents accumulated in the course of the IRT investigation. On August 14, 2008, UtahAmerican’s counsel sent a FOIA request to DOL for documents “connect[ed] with the investigation of the Independent Review Team.” (Fesak Decl. Ex. A at 1.) Specifically, UtahAmerican requested the following: Any and all transcripts in MSHA’s actual or constructive possession of each and every interview conducted by the IRT, including, but not limited to: [1] transcripts of the interviews of each and every individual listed in Appendix A (“List of Persons Interview”) to the report entitled “Independent Review of MSHA’s Actions at Crandall Canyon Mine” dated July 21, 2008; [2] transcripts of interviews of each and every individual interviewed by the IRT who worked at the Crandall Canyon Mine between January 1, 1995 and July 21, 2008; and [3] transcripts of interviews of each and every individual interviewed by the IRT who was a family member of any of the men fatally injured in either of the accidents that occurred at the Crandall Canyon Mine on August 6, 2007 and August 16, 2007. (Id. at 1-2.) In the event interview transcripts did not exist, UtahAmerican requested “copies of any electronic recordings, of such interviews, regardless of format or medium.” (Id. at 2.) On August 18, 2008, UtahAmerican supplemented its FOIA request in a second letter to the DOL seeking “copies of all documents, records, and exhibits” referenced in the IRT’s July 21, 2008 published report. (Fesak Decl. Ex. B at 1.) Also requested in this letter were “copies of all documents upon which the IRT relied for its factual findings.” (Id.) UtahAmerican filed suit on October 20, 2008, claiming that the DOL never responded to, or even confirmed, receipt of its two FOIA requests. (Compl. ¶¶ 14,16.) Roughly two weeks later, the DOL issued its first response to plaintiff, releasing 14 publicly available documents referenced in the published IRT report. (Fesak Deck Ex. C at 1-2.) In this November 6, 2008 response, the DOL also directed UtahAmerican to the MSHA website, where other public documents referenced in the IRT report were available for viewing, and advised that it was withholding any remaining responsive material pursuant to FOIA exemptions 5 and 7(A). (Id.) On June 19, 2009, the DOL made a second production to UtahAmerican which contained two compact discs of responsive materials. (Def.’s Mot. Ex. 1 at 2.) Additionally, the DOL claimed it had withheld responsive material from the second production under FOIA exemptions 2, 5, 6, 7(A), and 7(C). (Id.) On July 15, 2009, shortly after its second production, the DOL moved for summary judgment on the grounds that it had fully complied with its obligations in response to UtahAmerican’s FOIA request. UtahAmerican opposes the DOL’s motion and has filed its own cross-motion for summary judgment. Both motions are now ripe for decision. LEGAL STANDARD In response to a FOIA request, a government agency must conduct a “reasonable]” search for responsive records. Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 318 (D.C.Cir.2006). An agency defending against a FOIA suit can prevail on summary judgment if it shows “beyond material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents.” Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983). “The court applies a ‘reasonableness’ test to determine the ‘adequacy’ of a search methodology, consistent with congressional intent tilting the scale in favor of disclosure.” Campbell v. Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998) (citation omitted). With respect to withheld material, the Court “impose[s] a substantial burden on an agency seeking to avoid disclosure” based on a FOIA exemption. Vaughn v. Rosen, 484 F.2d 820, 828 (D.C.Cir.1973). Importantly, the Court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations. See Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). Under the law of our Circuit, “in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA.” Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982). When an agency’s affidavits demonstrate that “no material facts are in dispute,” and if the agency “demonstrates ‘that each document that falls within the class requested either has been produced ... or is wholly exempt from the Act’s inspection requirements,’ ” then it is entitled to summary judgment. Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Go- land v. CIA, 607 F.2d 339, 352 (D.C.Cir. 1978)). ANALYSIS The parties’ cross-motions turn on whether DOL conducted an adequate search in response to UtahAmerican’s request and whether it has properly invoked certain FOIA Exemptions. For the following reasons, the Court finds: (1) that DOL’s search was inadequate in two respects, and (2) that DOL improperly invoked FOIA Exemptions 5 and 7(A) to withhold transcripts of the IRT interviews and associated exhibits. 1. Adequacy of DOL’s Search There is little question that DOL made “a good faith effort to conduct a search” for the records sought in Uta-hAmerican’s first FOIA request, “using methods which can be reasonably expected to produce the information requested.” Baker & Hostetler LLP, 473 F.3d at 318 (quotation marks omitted). Indeed, that request could be and was satisfied by reviewing an identifiable and discrete set of documents—specifically, transcripts of the 59 interviews the IRT conducted. (Fesak Decl. Ex. K, Declaration of Derek Baxter (“Baxter Decl.”) ¶ 3.) By taking issue with DOL’s claim that much of the transcript material is exempt and by questioning DOL’s lengthy Vaughn index for such material, UtahAmerican implicitly acknowledges that DOL in fact located and reviewed a complete set of IRT transcripts. (Pl.’s Cross-Mot. at 22.) Thus, it is clear on this record that the DOL performed an adequate search in response to UtahAm-erican’s first request. Whether the DOL performed an adequate search in response to UtahAmer-ican’s second request is, however, less clear. In essence, plaintiffs second request sought all documents that the IRT either referenced in its published report, or relied on to arrive at its factual findings. (Fesak Decl. Ex. B at 1.) The DOL explains its search by first describing the universe of IRT documents. Over the course of the IRT’s investigation, it accumulated transcripts of the interviews it conducted itself along with a large volume of material it received from the MSHA, including transcripts of the interviews conducted by the MSHA’s investigation team. (Fesak Deck ¶ 9-10.) All of this information was stored on a secure segregated drive on the MSHA’s computer system. (Id. ¶ 24.) According to the DOL, its search was more than adequate because it “reviewed the complete electronic file of documents compiled by the [IRT].” (Def.’s Opp’n to PL’s Cross-Mot. [# 17] (“Def.’s Opp’n”) Ex. 4, Declaration of Jennifer C. Honor (“Honor Decl.”) ¶ 3.) The DOL acknowledges, however, that it excluded broad categories of documents from its review of the overarching IRT file. For instance, the DOL excluded from this search any material which had already been processed in response the an earlier FOIA request UtahAmerican made ■directly to the MSHA. (See Fesak Decl. ¶ 10.) UtahAmerican challenges this decision on the basis that it prevents the Court from “assessing] the validity and extent of the claimed duplication.” (PL’s Cross-Mot. at 23.) I disagree. The DOL is under no obligation to review the same set of documents twice. Indeed, it is the law of our Circuit that “[t]he Freedom of Information Act does not require that the agen cy from which documents are requested must release copies of those documents when another agency possessing the same material has already done so.” Crooker v. Dep’t of State, 628 F.2d 9, 10 (D.C.Cir. 1980). While the DOL was reasonable to avoid duplicative processing, it was less prudent when it unilaterally narrowed the scope of plaintiffs second request in another respect. By redefining plaintiffs request for documents “relied on for [the IRT’s] factual findings” to mean documents “relied on for the final [IRT] report’s significant or principal factual findings,” (Def.’s Opp’n Ex. 5, Declaration of Thomas A. Mascolino (“Mascolino Decl.”) ¶ 6 (emphasis added)), the DOL failed to comply with its “duty to construe [the] FOIA request liberally.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995). Stated simply, UtahAmerican’s request was for documents relied on for all of the IRT’s factual findings, not just those that the DOL’s FOIA processors deemed to be “significant or principal.” A narrowing interpretation of this nature is unreasonable and, in this situation, resulted in an inadequate search of the relevant documents requested. Additionally, the DOL was unreasonable when it excluded from review, or withheld as non-responsive, certain materials which were referenced in the IRT report. While the DOL tries to justify this decision on the grounds that some documents referenced in the report were not relied on by the IRT for factual findings, this explanation conflates two distinct components of UtahAmerican’s second FOIA request. (See Def.’s Opp’n at 10-14.) Plaintiff sought both the actual documents cited in the report, as well as the information relied on by the IRT. Thus, for example, certain e-mail messages which the DOL appears to concede were “alluded to” or “identified” in the IRT report are responsive to UtahAmerican’s request, even though the DOL claims they were not relied on for the IRT’s factual findings. (Def.’s Opp’n at 13-14.) The same is true of the transcripts of the Senate Hearing on Crandall Canyon, (Def.’s Opp’n at 10-11), and any press conference videos which the DOL has stored in its possession, (Def.’s Opp’n at 12-13). Thus the DOL’s search was inadequate to the extent it overlooked these materials, which must now be produced. 2. FOIA Exemptions The DOL, of course, invoked a number of FOIA Exemptions to redact or withhold a large number of responsive documents from the IRT file. UtahAmerican’s Cross-Motion for Summary Judgment, however, only opposes the DOL’s withholding under Exemptions 7(A) and 5 for one category of documents: the IRT interview transcripts and associated exhibits. (See PL’s Cross-Mot. at 26-37.) As such, the DOL is entitled to summary judgment on the remaining uncontested exemption claims. As to UtahAmerican’s challenge to that one category of IRT interview documents, however, the Court grants plaintiff summary judgment because DOL inappropriately invoked Exemptions 7(A) and 5. How so? a. Exemption 7(A) The DOL is withholding all IRT transcripts in their entirety on the basis of Exemption 7(A), which permits agencies to withhold “records or information compiled for law enforcement purposes ... to the extent that the production of such law enforcement records or information ... could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). “The principal purpose of Exemption 7(A) is to prevent disclosures which might prematurely reveal the government’s cases in court, its evidence and strategies, or the nature, scope, direction, and focus of its investigations, and thereby enable suspects to establish defenses or fraudulent alibis or to destroy or alter evidence.” Maydak v. Dep’t of Justice, 218 F.3d 760, 762 (D.C.Cir.2000). Bearing in mind that it is the DOL’s “substantial burden” to justify withholding these materials, Vaughn, 484 F.2d at 828, it is clear for the following reasons that the DOL has not sufficiently demonstrated how releasing the IRT interview materials “could reasonably be expected to cause some articulable harm” by interfering with ongoing enforcement proceedings. See Kay v. FCC, 976 F.Supp. 23, 37 (D.D.C.1997) (citing Bevis v. Dep’t of State, 801 F.2d 1386, 1388 (D.C.Cir.1986)). In its effort to meet its burden, the DOL has proffered the declarations of the United States Attorney for Utah and an attorney from the civil enforcement section at the DOL. The U.S. Attorney states in his declaration that his office has an ongoing criminal investigation into events surrounding the Crandall Canyon mine collapse, including “whether any false statements were made to federal officials.” (Tolman Decl. ¶ 11.) Further, the U.S. Attorney opines that releasing the interview transcripts would undermine this part of the investigation because “those with any potential criminal liability will know exactly what federal officials contend they said or did not say, or did or did not do. This creates the possibility for those providing statements to compare their stories and to collaborate to obtain a consistency of detail and memory that will not be available if those statements are not released.” (Id.) Similarly, The DOL civil enforcement attorney contends that disclosing portions of the IRT transcripts would “interfere with the ongoing civil enforcement activities [conducted by MSHA] by identifying the nature of the evidence that may be presented at trial and disclosing MSHA’s evaluation of said evidence.” (Baxter Decl. ¶¶ 1, 4, 6.) He also states that disclosing portions of other transcripts might “reveal names of potential MSHA witnesses,” which “would interfere with the ongoing enforcement activities by identifying the nature of evidence that may be presented at trial and which MSHA and other witnesses posses such evidence, at a time in which the mine operator has not commenced discovery.” (Id. ¶ 10.) Finally, he contends that such disclosure “would provide company employees with a chance to ‘compare their stories’ with the version of events recounted by the MSHA employees.” (Id.) For the following reasons, their concerns, under the unique circumstances here, are hardly enough. First, with respect to their mutual fear that releasing the interview transcripts could cause witness collusion or unfairly preview evidence to be presented at trial, the DOL is less than convincing. After all, a report based on the IRT interviews was published nearly two years ago. (PL’s Cross-Mot. Ex. A.) In addition, the MSHA published a separate accident investigation report based on its interviews, which included 20 of the IRT witnesses, on July 24, 2008. (PL’s Cross-Mot. at 32; Fesak Decl. ¶25.) To this day, both reports have been available in full on the MSHA’s website. The explanations and accounts of events described in these reports undoubtedly rely in significant part on the information learned from the interviews conducted during the IRT and MSHA investigations. Surely, the essence of what the witnesses had to say is — at a minimum — reflected in these reports. Thus, while it is difficult to know exactly how much of these witness accounts were not included in the final published reports, DOL’s failure to explain with greater particularity how that information could compromise those ongoing investigations some two years later should not be rewarded by this Court. Thus, the question presented here is whether oblique references to alleged possible interference with ongoing investigations, under these circumstances, are sufficient to warrant the agency’s non-disclosure. I think not. Any false statement previously given in the course of the MSHA or IRT investigation which is the subject of a still-ongoing investigation was made nearly two years ago. Since that time, any individual under investigation has had more than ample opportunity to compare his story with the two published reports or with other witnesses, either directly, or through their respective counsel. And, of course, if a target of the investigation were to modify, or recant, in the future any of his prior statements as a result of what he learns by reading these previously undisclosed IRT interview materials, he will undoubtedly attract prosecutorial attention either inside or out of the Grand Jury. Simply stated, I believe the risk of witness collusion at this late date, after so much information has been made public, is exaggerated and falls far short of the “substantial burden” that must be met to warrant the agency’s use of this Exemption. Next, DOL argues that disclosing the transcripts could result in witness intimidation. (Def.’s Opp’n at 25.) I disagree. The 59 witnesses’ identities are already known publicly, and fortunately, none have been intimidated to date. (Pl.’s Cross-Mot. at 31-32.) Exemption 7(A) requires “predictive judgment” of future harm which can “reasonably be expected.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 928 (D.C.Cir.2003) (emphasis added). Given that all of the witnesses’ identities are known and the agency’s reports have been public for nearly two years, harm to any of these witnesses cannot be reasonably expected in the future and is thus an insufficient basis to rely on Exemption 7(A). In sum, the DOL’s arguments and declarations are an insufficient reason to invoke Exemption 7(A). “Exemption 7(A) does not authorize automatic or wholesale withholding of records or information simply because the material is related to an enforcement proceeding.” North v. Walsh, 881 F.2d 1088, 1097 (D.C.Cir.1989). Because the DOL has not carried its “substantial burden” to demonstrate that releasing the IRT interview transcripts and associated exhibits would likely interfere with an ongoing investigation, it cannot now invoke Exemption 7(A) to withhold any of this IRT material. b. Exemption 5 As a backstop to Exemption 7(A), the DOL argues that 12 of the 59 interview transcripts are exempt in their entirety under Exemption 5. Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). This Exemption applies to information that would otherwise be subject to an evidentiary privilege claim, and thus protected from disclosure, in the context of civil discovery. Rockwell Int’l Corp. v. Dep’t of Justice, 235 F.3d 598, 601 (D.C.Cir.2001). The privilege claim the DOL seeks to invoke, however, is the so-called “Machín privi lege,” which the Supreme Court has characterized as “protecting confidential statements made to government air crash safety investigators.” Dep’t of Justice v. Julian, 486 U.S. 1, 20, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988). This case, of course, does not involve that type of investigation.
4246805-6321	OPINION PER CURIAM. Pro se appellant Virgil Rushing (“Rushing”) appeals from the judgment of the United States District Court for the Eastern District of Pennsylvania in his civil rights case. As the appeal lacks an arguable basis in law or in fact, we will dismiss it as frivolous. I. Rushing is a state prisoner housed at the Philadelphia Industrial Correctional Center (“PICC”). Rushing was arrested and charged in May 2014 for crimes under Pennsylvania law. While detained and awaiting trial, Rushing filed a civil rights complaint under 42 U.S.C. § 1983 against the Commonwealth of Pennsylvania, the City of Philadelphia, President Judge Sheila Woods-Skipper and Judge Roxanne Covington of the Philadelphia Court of Common Pleas, attorney Michael Benz of the Philadelphia Defender Association, and attorney Sean Page. Rushing alleged that he was being held under unjust laws, charges, and time by the Commonwealth and “the CJC judges holding [him].” Dkt. # 6, pg. 3. To the extent that it is possible to make out any other cognizable claims in his complaint, Rushing also appeared to allege: that he was denied equal protection of the laws; bias by the trial judge, Judge Covington; ineffective assistance of counsel; and poor and dangerous conditions of confinement. The District Court dismissed his complaint with prejudice as legally frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). It dismissed his claim against the Commonwealth on grounds of Eleventh Amendment immunity, and dismissed his claims against his attorneys because they are not state actors who are subject to liability under 42 U.S.C. § 1983. It dismissed his claims against Judge Covington because she was entitled to “absolute judicial immunity,” as Rushing’s claims against her were based on acts she took in her judicial capacity. Finally, the District Court dismissed the claims against Philadelphia and President Judge Woods-Skipper for failure to state a claim. The District Court also stated that providing leave to amend would be futile. Rushing appeals from this decision. II. The District Court had jurisdiction- pursuant to 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s sua sponte ’ dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) is plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). When dismissing claims for failure to state a claim, this standard of review is the same as under Fed.R.Civ.P. 12(b)(6). Where a complaint has not alleged sufficient facts to state a claim for relief that is “plausible on its face[,]” dismissal is appropriate. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint is considered frivolous if it lacks an arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A claim that is based on “an indisputably meritless legal theory” or a claim that is clearly baseless is deemed frivolous. Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir.1995). Examples of frivolous suits include those where defendants are “immune from suit.” Neitzke, 490 U.S. at 327, 109 S.Ct. 1827. The District Court correctly dismissed all claims against the Commonwealth of Pennsylvania, Judge Covington, and attorneys Benz and Page. First, states are not “persons” within the meaning of § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); see also Callahan v. City of Philadelphia, 207 F.3d 668, 670 (3d Cir.2000). Except where states have waived their immunity, the Eleventh Amendment bars all suits against states for alleged deprivations of civil liberties. Will, 491 U.S. at 66, 109 S.Ct. 2304. The Commonwealth of Pennsylvania did not waive immunity in this suit, and so Rushing’s § 1983 claims could not be brought against the state. Second, “judges are immune from suit under section 1983 for monetary damages arising from their judicial acts.” Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 768 (3d Cir.2000). Judges are not immune, however, for any actions taken in a non-judicial capacity. Id. To the extent that Rushing even alleged facts against Judge Covington, those facts indicated that she was acting in a judicial capacity. Accordingly, Rushing’s claims could not proceed against Judge Covington. Finally, attorneys are not subject to § 1983 claims on the basis that they are officers of the court. This is true whether they are private attorneys or public defenders. See Polk County v. Dodson, 454 U.S. 312, 324-25, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); see also Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir.1999). As such, Rushing’s claims could not proceed against attorneys Benz and Page under § 1983. The District Court was also correct in its dismissal of the City of Philadelphia and President Judge Woods-Skipper for failure to state claims against them. Rushing did not allege any facts that point to the liability of either party. He merely named both parties as defendants, and then did not state anything further. The closest Rushing comes to alleging facts stating a claim against the City of Philadelphia is on the eleventh page of his complaint. There, he states: “book library must be open;” “no doctor of psychiatry at mental dept, of K-Block;” that inmates were showering in “cold to luke cold water” in the autumn and winter; and that one of the prison doctors has a “possible mental illness.” Dkt. #6, pg. 11. However, he raised no basis for Philadelphia’s liability on any of these issues, and claimed no injury. Because the District Court dismissed Rushing’s complaint without a discussion of his underlying claims, it did not discuss two of his claims that should have been brought in a habeas petition. As a rule, habeas petitions and § 1983 complaints are not “coextensive either in purpose or effect.” Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir.2002). Where a state prisoner seeks to attack the fact or duration of his conviction or sentence, he must seek relief through a habeas petition, not a § 1983 complaint. See Preiser v. Rodriguez, 411 U.S. 475, 489-91, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); see also Wilkinson v. Dotson, 544 U.S. 74, 78-79, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005).
4239097-9178	OPINION KAREN NELSON MOORE, Circuit Judge. Erlin Gonzalez-Isaguirre petitions this court to review the denial of his application for withholding of removal and Convention-Against Torture (“CAT”) relief by an immigration judge (“IJ”) and the Board of Immigration Appeals (“BIA”). The IJ found Gonzalez-Isaguirre to be not credible and, even assuming credibility, found his application for relief to be without merit. The BIA affirmed, in an opinion largely concurring .with the reasoning of the IJ’s decision. Because we agree with the BIA’s merits determination, we DENY Gonzalez-Isaguirre’s petition for review. I. BACKGROUND Gonzalez-Isaguirre is a thirty-eight year old native of Nicaragua. He left that country in 2003, purportedly to escape persecution for his political opposition to the Sandinista party. IJ Hr’g Tr. at 18-19 (C.A.R. at 118-19). According to Gonzalez-Isaguirre, his family has long been opposed to the Sandinistas. Id. at 21-23 (C.A.R. at 121-23). He testified specifically about the experiences of his uncles Fabian, Julio, and Avelio. According to Gonzalez-Isaguirre, Fabian was a bodyguard to Anastasio Somoza DeBayle, the political leader of Nicaragua prior to the Sandinista government’s coming into power. Id. at 25 (C.A.R. at 125). Fabian was allegedly imprisoned for ten years for his relationship with Somoza; he has since been released. Id. at 25, 55 (C.A.R. at 125, 155). Gonzalez-Isaguirre also spoke about a second uncle who was killed in the Nicaraguan civil war, between 1980 and 1990. Id. at 27, 53 (C.A.R. at 127, 153). Gonzalez-Isaguirre could not initially recall this uncle’s name, but eventually confirmed that his name was Julio, after his attorney referred to a letter of support submitted by Gonzalez-Isaguirre’s mother mentioning Julio’s name. Id. at 46 (C.A.R. at 146). Finally, Gonzalez-Isaguirre discussed a third uncle, Avelio, who checked into the hospital in 1985 at age fifteen with a broken arm. Id. at 28 (C.A.R. at 128). Avelio died of cerebral hypoxia, which Gonzalez-Isaguirre alleges “was [an] intentional political act [by the hospital] and not basically medical malpractice.” Id. at 29 (C.A.R. 129). When asked to provide evidence of this attributed intent, however, Gonzalez-Isaguirre conceded that “I don’t, I don’t have any proof.” Id. at 30 (C.A.R.130). Later, when asked if there were any other members of his family, outside of his uncles, who “had harm done to them because of their opposition to the Sandinis-tas,” Gonzalez-Isaguirre responded that “only my mother had some threats.” Id. According to Gonzalez-Isaguirre, his mother has been threatened with violence since 1980, when the Sandinistas first came into power. These threats usually spike around election time; in some instances, Sandinista supporters have thrown stones at Gonzalez-Isaguirre’s house. Id. at 34 (C.A.R. at 134). Gonzalez-Isaguirre also stated that his mother was “pushed by [a] soldier with [a] weapon” when she tried to retrieve Avelio’s body from the hospital in 1985. Id. at 32 (C.A.R. at 132). “Nobody has hit her,” however, since at least 2006. Id. at 45 (C.A.R. at 145). Gonzalez-Isaguirre’s mother, father, and sister all currently live in Ciudad Dario, Nicaragua, Gonzalez-Isa-guirre’s hometown. Id. at 19 (C.A.R. at 119). Finally, with respect to incidents against himself, Gonzalez-Isaguirre’s account varies. In a two-page attachment to his 1-589 application, which he prepared with the assistance of counsel, Gonzalez-Isaguirre mentions only the incidents against his uncles and his mother, without discussing any persecution that he personally faced. During his IJ hearing, however, Gonzalez-Isaguirre described having “stones, knives, [and] even bullets” thrown at him for speaking out against the Sandinistas. Id. at 35 (C.A.R. at 135). He conceded, however, that he had “not received physical harm” as a result of any of these incidents. Id. Later, in response to a question about whether he had ever been physically wounded, Gonzalez-Isaguirre stated that “[n]o, I, I have received, you know, blows or hits, but not, not, nothing that had caused a break of any kind.” Id. at 41 (C.A.R. at 141). He explained that the omission of these incidents in his 1-589 was likely the result of a miscommunication with his attorney. Id. at 38-39 (C.A.R. at 138-39). If returned to Nicaragua, Gonzalez-Isa-guirre believes that Sandinista supporters will hurt him because of his prior political activity, id. at 46 (C.A.R. at 146), even though he admitted that he was no longer a member of any political party, id. at 21 (C.A.R. at 121), and even though the PLC, the party that Gonzalez-Isaguirre most closely identifies with, currently holds several seats in the Nicaraguan government. Gonzalez-Isaguirre did not discuss at his IJ hearing any past incidents of torture against either him or his family members. The IJ denied Gonzalez-Isaguirre’s application for withholding of removal and CAT relief. In an oral decision, the IJ found Gonzalez-Isaguirre to be not credible, after hearing him describe in detail the personal persecution he suffered in Nicaragua — a description uncorroborated by the evidence contained in his 1-589 application. IJ Dec. at 10-11 (C.A.R. at 71-72). The IJ also concluded that Gonzalez-Isaguirre’s withholding claim would fail on the merits — i.e., even if found credible, Gonzalez-Isaguirre had failed to demonstrate that he would more likely than not be persecuted if returned to Nicaragua. Id. at 14 (C.A.R. at 75). The IJ noted that Gonzalez-Isaguirre had provided no evidence of having suffered physical harm at the hand of the Sandinistas, and that, by his own admission, his family members — his uncle, his parents, and his sister — were now living unharmed in Nicaragua. Id. at 15 (C.A.R. at 76). The IJ likewise denied Gonzalez-Isaguirre’s request for CAT relief. In a three-page reasoned opinion, the BIA affirmed the IJ’s order, substantially echoing the IJ’s analysis. This petition for review timely followed. II. ANALYSIS A. Standard of Review “Where the BIA reviews the immigration judge’s decision and issues a separate opinion, rather than summarily affirming# the immigration judge’s decision, we review the BIA’s decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). However, “[t]o the extent the BIA adopted the immigration judge’s reasoning,” we “review the immigration judge’s decision.” Id. We review legal conclusions made by the BIA and the IJ de novo, giving “substantial deference” to their “interpretation of the INA and accompanying regulations,” and review their factual findings for substantial evidence. Urbina-Mejia v. Holder, 597 F.3d 360, 364 (6th Cir.2010). “We cannot reverse such [factual] findings simply because we would have decided them differently.” Id. Rather, these findings are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). B. Withholding of Removal Gonzalez-Isaguirre contends that, in finding him to be not credible, the BIA and the IJ overlooked our decision in Liti v. Gonzales, 411 F.3d 631 (6th Cir.2005). In that case, we overturned the IJ’s adverse credibility determination because we determined that the generalized statements in Liti’s asylum application did not contradict the more specific testimony that Liti subsequently gave at his removal hearing. Id. at 637-39. The government contends, on the other hand, that these cases are factually distinguishable. Unlike petitioner in Liti, for instance, Gonzalez-Isaguirre “went to the effort [of] addfing] pages [to his application] that separately detail specific incidents that support his claim.” Resp’t Br. at 21. These pages make no reference, however, to any sort of persecution committed against Gonzalez-Isa-guirre. See (Addendum to 1-589 Application at 1-2) (C.A.R.326-27). While true, we are not certain that this fact alone provides a clear answer to the question at hand — whether an IJ can make an adverse credibility determination based on a petitioner providing facts at his removal hearing that supplement (rather than contradict) the account given in his I-589 application. In any event, we need not decide whether Liti applies to this case, because we think that the IJ and the BIA correctly determined that Gonzalez-Isa-guirre would not qualify for withholding of removal under the INA even if he were deemed credible. In order “[t]o prevail on a petition for withholding of removal under the INA, an alien must show that there is a ‘clear probability,’ that is, that ‘it is more likely than not’ ” that he would be subject to persecution on the basis of his “race, religion, nationality, membership in a particular social group, or political opinion.” Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir.2006) (citations omitted). A petitioner can meet this burden by either providing evidence of past persecution (thereby creating a rebuttable presumption of future persecution) or by showing that he will more likely than not be subject to persecution if returned to his native country. 8 C.F.R. § 1208.16(b). Gonzalez-Isa-guirre has done neither.
1620287-17445	OPINION OF THE COURT ALDISERT, Chief Judge. This appeal involves a dispute between a contractor and subcontractor. The district court held that a seemingly broad arbitration provision set forth in one clause of the subcontract was limited by another subcontract clause which incorporated a narrow arbitration clause contained in the primary or principal contract between the contractor and the project manager. The crucial issue is whether we characterize the function performed by the district court as contract interpretation or contract construction. We hold that the district court was interpreting language contained in the contracts, rather than deciding the legal relations between the parties, and therefore review its determination under the clearly erroneous standard. Ram Construction Co. v. American States Insurance Co., 749 F.2d 1049, 1052-53 (3d Cir.1984). We further conclude that the court’s interpretation was not clearly erroneous and will therefore affirm. I. John F. Harkins Co. was one of several primary contractors on the construction project for the Atlantic City Hilton Casino/Hotel. Harkins contracted with Hilton and the construction manager, Tishman Construction Co., to install the heating, ventilation, and air conditioning systems. Harkins subcontracted sheetmetal duct-work to Waldinger Corporation. On November 9, 1984, Waldinger commenced an arbitration proceeding against Harkins before the American Arbitration Association, pursuant to what it considered a mandatory arbitration clause in the subcontract. Waldinger alleged that Harkins had “changed the conditions, sequence and schedule under which [Waldinger’s] work was to be performed ...” resulting in excess costs to Waldinger, and requested an award of $6 million. App. at 34. Harkins disagreed that this was subject to arbitration. It then initiated this action in New Jersey state court seeking to enjoin the arbitration. Harkins relied on a restrictive arbitration clause in the primary contract, which Harkins maintains was incorporated into its subcontract with Waldinger, a clause that limits arbitration to disputes over signed change orders. Waldinger then removed the state court action to federal district court. The district court agreed with Harkins and held that this dispute was not covered by the arbitration clause. It concluded that “the proper interpretation of the disputed contractual provisions limits arbitrability to disputes over signed change orders____” App. at 60. The court determined that this was the primary contract arbitration limitation and that this limitation was incorporated into the subcontract. Because Waldinger’s dispute did not involve a signed change order, the court ruled that it was not arbitrable. The court therefore denied Waldinger’s motion for a stay of the district court action pending arbitration, and granted Harkins’ motion to stay the arbitration. Id. Waldinger appeals. We have jurisdiction under 28 U.S.C. § 1292(a)(1). J & R Sportswear & Co. v. Bobbie Brooks, Inc., 611 F.2d 29, 29 (3d Cir.1979); Becker Autoradio U.S.A., Inc. v. Becker Autoradiowerk GmbH, 585 F.2d 39, 42 n. 7 (3d Cir.1978). II. Before us Waldinger contends that the district court erred in construing the contract’s arbitration language. Although terms of an injunction are normally reviewed for abuse of discretion, any determination that is a prerequisite to the issuance of an injunction, i.e., the term of a contractual arbitration provision, is reviewed according to the standard applicable to that particular determination. See Weiss v. York Hospital, 745 F.2d 786, 829-30 (3d Cir.1984). Therefore, the crucial task before us is to decide the appropriate standard of review of the district court’s examination of the contractual arbitration provisions. Both Waldinger and Har kins cite Ram Construction Co. v. American States Insurance Co., 749 F.2d 1049 (3d Cir.1984), for different standards of review on this issue. We agree that Ram Construction controls. In Ram Construction, we distinguished between the standards of review for contract interpretation and contract construction. Id. at 1052-53. Contract interpretation is a question of fact, and review is according to the clearly erroneous standard. Id. at 1053. In contrast, contract construction is a question of law mandating plenary review. Id. Harkins argues that this case turns on interpreting the contract’s terms in order to ascertain the intent of the parties. Waldinger contends that the case pivots on construing the contract according to law. The distinction between interpretation and construction is not always easy. Professor Corbin described the distinction: By “interpretation of language” we determine what ideas that language induces in other persons. By “construction of the contract,” as that term will be used here, we determine its legal operation— its effect upon the action of courts and administrative officials. If we make this distinction, then the construction of a contract starts with the interpretation of its language but does not end with it; while the process of interpretation stops wholly short of a determination of the legal relations of the parties. When a court gives a construction to the contract as that is affected by events subsequent to its making and not foreseen by the parties, it is departing very far from mere interpretation of their symbols of expression, although even then it may claim somewhat erroneously to be giving effect to the “intention” of the parties. 3 Corbin, Corbin on Contracts § 534 at 9 (1960) (footnotes omitted). Our opinion in Ram Construction further illuminates the distinction between contract interpretation and contract construction. In that case we were faced with the question of whether the provisions of a contract for removal of one rock slide from a roadway covered a subsequent rock slide, or whether the actions of the parties had created a second contract. Speaking through Judge Weis, we said: [T]he decision that two separate agreements for slide removal existed was one of contract construction, not interpretation. As the surety states and the record confirms, there are no differences between the parties on the material terms of the Slide II agreement. The amount and type of work, compensation, time and method of carrying out the work, and other details are not contested. No question of interpretation is presented, only the construction of the agreement; that is whether Slide II is to be considered legally part of the December 8, 1982 contract or as a separate agreement. 749 F.2d at 1053. We also quoted Professor Patterson: “ ‘Construction, which may be usefully distinguished from interpretation, is a process by which legal consequences are made to follow from the terms of the contract and its more or less immediate context, and from a legal policy or policies that are applicable to the situation.’ ” Id. (quoting Patterson, The Interpretation and Construction of Contracts, 64 COLUM.L.REV. 833, 835 (1964)). III. In the case at bar, the clash between the contracting parties centered on whether the parties intended that the liberal language of the subcontract’s arbitration clause should apply, or whether they intended that the subcontract incorporate the primary contract’s arbitration provision. Thus, when we use the Ram Construction -Professor Corbin-Professor Patterson nomenclature of “interpreting the contract,” in this case this means ascertaining the intent of the parties as to what arbitration clause controlled. We have previously held that this is a question of fact, governed by the clearly erroneous standard. Matter of Barclay Industries, Inc., 736 F.2d 75, 79 (3d Cir.1984) (“[Interpretation of an ambiguous contract ... is a question of the parties’ intent, and thus a question of fact.”); Landtect Corp. v. State Mutual Life Assurance Co., 605 F.2d 75, 79 (3d Cir.1979) (“ ‘Discerning contractual intent’ is a question of fact unless the provisions of a contract are ‘wholly unambiguous.’ ” (quoting Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975)). We therefore conclude that the judicial task performed by the district court here was contract interpretation, i.e., determining the intent of the parties regarding arbitration. The court was required to find as a fact what the contracting parties intended. It had to divine this intent from the language of the contract documents and any extrinsic evidence that went to the issue of intent. Once we review the district court’s language interpretation, the legal operation of that interpretation on review follows easily. The proper standard of review has to be whether the district court’s findings — interpretation of the contract, that is, the intent of the parties as to the meaning of the contract’s language — are clearly erroneous. We hold that its interpretation is not clearly erroneous. IV. A. Harkins and Waldinger disagree over the interpretation of two provisions in the primary contract between Tishman, the construction manager, and Harkins, the heating, ventilation and air conditioning contractor, and two provisions in the subcontract between Harkins and Waldinger, the sheetmetal subcontractors. These provisions describe arbitration of disputes between parties to the two contracts. Section 17 of the Harkins/Waldinger subcontract provides: 17. All disputes, claims or questions arising hereunder shall be subject to arbitration and shall be submitted to arbitration in accordance with the provisions, then obtaining, of the Standard Form of Arbitration Procedure of the A.I.A. A determination thereunder shall be final and binding upon the parties thereto. Pending determination, there shall be no work stoppage. App. at 22. Waldinger contends that this section alone made all disputes arising under the subcontract subject to mandatory arbitration. In response, Harkins contends that other provisions — one in the subcontract and two in Tishman/Harkins’ primary or principal contract — limited the scope of arbitration. Harkins relies on Section 2 of the Harkins/Waldinger subcontract which provides: 2. Work performed by subcontractor shall be in strict accordance with CONTRACT DOCUMENTS applicable to the work to be performed and materials, articles and/or equipment to be furnished hereunder. SUBCONTRACTOR shall be bound by all provisions of these documents and also by applicable provisions of the PRINCIPAL CONTRACT to which the CONTRACTOR is bound, and to the same extent____ Id. (emphasis supplied). Harkins argues that the phrase “and to the same extent” in this section limited any mandatory arbitration provision in the subcontract to the scope of those arbitration provisions contained in the primary contract. Arbitration provisions contained in the primary contract have a much narrower scope than that of the subcontract. Section 37 of the Tishman/Harkins primary contract refers to arbitration in general and limits arbitration to only those disputes that Clause 38 of the primary contract specifies as arbitrable: 37. In any case in which it is provided by the terms of this contract that any specific dispute or specific payment to be made shall be determined by arbitration, such arbitration shall be conducted in the City in which the Site is located in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrators may be entered in any Court having jurisdiction thereof. Id. at 17. The only clause of the primary contract that permits arbitration is Section 38, which specifies arbitration for disputes over written change orders: 38. The owner, without invalidating this contract, may order extra work or make changes by altering, adding to or deducting from the work, the Contract Price to be adjusted accordingly. The Contractor shall not make any alterations or omit anything, or perform additional or extra work, except upon written order signed by the Owner____ In case of disagreement as to the amount to be paid or allowed, the Contractor shall promptly comply with the order and the amount shall be determined by arbitration as herein provided. Id. at 17-18. B. After considering these provisions and other evidence relating to the parties’ intent, the district court determined that: The only real issue for the court to resolve is whether Waldinger can submit issues for arbitration under the subcontract when Harkins could not seek arbitration of the same issues under the primary contract, given the fact that section 2 of the subcontract binds Waldinger, the subcontractor, to the same extent to which Harkins is bound under the primary contract. We believe that the correct interpretation bars Waldinger from arbitrating disputes under the subcontract if Harkins could not do the same under the primary contract. Id. at 58. In addition, to its examination of the contracts, the district court relied on an affidavit of John F. Harkins, President of Harkins Co., as evidence of the parties’ intent: The provision of paragraph 2 of Harkins’ form subcontract that “Subcontractor shall be bound by all provisions of these documents and also by applicable provisions of the Principal Contract to which Contractor is bound, and to the same extent” is intended, inter alia, to assure that subcontractors have no greater rights and remedies against Harkins under the subcontract form than Harkins has against owners or general contractors under principal contracts. Id. at 44. This, of course, is strong evidence of the contracting parties’ intent. Significantly, there was no rebuttal to this evidence. In addition, the. district court also deemed relevant an amendment to the subcontract prepared by Waldinger: 3. Paragraph 2, Terms and Conditions of Subcontract is amended as follows: Add the following sentence at the end of the paragraph: “Subcontractor shall have the benefit of all rights, remedies and redress against the Contractor which Contractor has against Tishman, the Owner under the Contract Documents.” Id. at 31. The district court believed that this “indicates that Waldinger was well aware that the subcontract’s standard form allotted more rights to Harkins, the contractor, than to itself or to any subcontractor. The fact that Waldinger requested and obtained the amendment suggests that it contemplated the types of problems that might arise because all provisions of the primary contract were to be incorporated by reference into the subcontract.” Id. at 59. V. In Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), the Supreme Court recently explained the highly circumscribed nature of appellate review of findings of fact: If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Id. at —, 105 S.Ct. at 1512. Accordingly, we do not have the authority to reverse the district court’s finding simply because we may have reached another finding as to intent. We are required to examine the entire record — the contractual provisions as well as other evidence that was before the district court. Furthermore, our review is no less circumscribed, “even when the district court’s findings do not rest on credibility determinations, but are based instead on ... documentary evidence or inferences from other facts.” Id. Section 2 of the Harkins/Waldinger subcontract can be read to limit the scope of the subcontract’s arbitration provision to the narrower provisions of the Tishman/Harkins primary contract. The Harkins’ affidavit and the amendment proposed by Waldinger further support the district court’s finding of what the parties intended. We therefore hold that the district court’s interpretation of the contractual language was not clearly erroneous. VI. Waldinger challenges the district court’s judgment on several other grounds, all of which we find unpersuasive. First, it relies on several cases where courts have held that an incorporation clause in a subcontract does not limit the dispute resolution method specified in the subcontract. Facts in these cases, however, differ from the matter at bar. In John W. Johnson, Inc. v. Basic Construction Co., 429 F.2d 764, 773 (D.C.Cir.1970), a clause in the primary contract stated that the contractor would bind subcontractors to the terms and provisions of the primary contract which were “applicable to the work.” Here the incorporation clause was not limited to work. This factual distinction also applies to McKinney Drilling Co. v. Collins Co., 517 F.Supp. 320, 328 n. 7 (N.D.Ala.1981), affirmed,. 701 F.2d 132 (11th Cir.1983), another case upon which appellant relies heavily. Moreover, in McKinney Drilling Co., the court relied upon expert testimony stating that it was industry custom that the terms of the contract at issue did not apply to the subcontract. Id. at 327. Here, the district court relied upon Harkins’ affidavit where he stated that the opposite was true. Also, we note that in Johnson and McKinney the courts of appeals were not limited to the clearly erroneous standard of review, as we are required by Ram Construction, but apparently exercised plenary review.
973284-16979	MEMORANDUM OPINION ROBERTSON, District Judge. Plaintiff describes himself as an independent money finder. On October 4, 1995, he made a Freedom of Information Act (FOIA) request to defendant FDIC for lists of all the unclaimed deposits of three failed banks— National Bank of Washington (“NBW”) and Madison National Banks of Washington D.C. and Virginia — that the FDIC holds in receivership. The FDIC provided the requested information for the unclaimed deposits of state and local municipalities, non-profit entities and deceased depositors. With respect to deposits of living individuals and businesses, FDIC disclosed deposit balances but withheld depositor names, invoking FOIA Exemptions 4 and 6, 5 U.S.C. §§ 552(b)(4) and (b)(6). Plaintiff brought this action on June 14, 1996. He alleges that FDIC’s assertion of Exemptions 4 and 6 was improper and that FDIC violated the due process clause of the Constitution by failing to give sufficient notice to the depositors of then-right to the unclaimed funds. On December 22, 1996, FDIC announced its plans to terminate its receivership of Madison National Bank of Virginia. Because termination would extinguish the rights of depositors to unclaimed funds at that bank, plaintiff moved for an emergency temporary restraining order and a permanent injunction. At a hearing on February 4, 1997, defendant agreed to take no action to terminate the receiverships of any of the three institutions until resolution of this suit. Both parties subsequently moved for summary judgment on the FOIA claim, and defendant moved for summary judgment on the due process claim. I heard argument on June 27, 1997. BACKGROUND The information plaintiff seeks was acquired by FDIC in its capacity as receiver for insolvent banks pursuant to 12 U.S.C. § 1821(c)(2)(A)(ii). FDIC assumes control of the records of insolvent banks by operation of law when it becomes receiver. 12 U.S.C. § 1821(d)(2)(A). FDIC must make good on the insured deposits of an insolvent bank, either by paying cash or by establishing deposits in other local banks. 12 U.S.C: § 1821(f). In 1993, Congress changed the procedures for notification to depositors in the event of FDIC receiverships. Pub.L. No. 103-44,107 Stat. 220 (codified at 12 U.S.C. § 1822(e)). The new procedures were to apply prospectively to all receiverships created after June 28, 1993. For receiverships created between January 1,1989 and June 28,1993 — including the receiverships of the NBW and the Madison banks which are the subject of this action — Congress established a special rule. The special rule extended the time for a depositor to make a claim against FDIC from 18 months to the date the receivership is terminated. Pub.L. No. 103-44, § 2(b). The statute also required that FDIC provide to any state, upon request, the name and last known address of any insured depositor eligible to make a claim against FDIC. Pub.L. No. 103-44, § 2(c). In the present case, the FDIC has taken initial steps to terminate the receivership of Madison National Bank of Virginia and has expressed a desire to terminate the receivership of the NBW and Madison National Bank of Washington, D.C. ANALYSIS A. FOIA Claims FDIC has declined to disclose the identities of businesses having unclaimed deposits, invoking FOIA Exemption 4, and declined to disclose the identities of individual depositors, invoking FOIA Exemption 6. For the reasons set forth below, FDIC will be required to disclose the identities of business depositors but may continue to withhold the identities of individuals. 1. Exemption 4 Exemption 4 protects from disclosure “trade secrets and commercial or financial information obtained from a person [that are] privileged or confidential.” 5 U.S.C. § 552(b)(4). The information sought in this case is “financial information” for purposes of the exemption. See Washington Post Co. v. U.S. Dep’t of Health and Human Servs., 690 F.2d 252, 266 (D.C.Cir.1982) (a list of organizations in which an individual had financial interests, even without dollar amounts, was “financial” information). The banks, from which FDIC obtained the information are “persons” within the meaning of Exemption 4. See, e.g., Comstock Int’l Inc. v. Export-Import Bank of the United States, 464 F.Supp. 804, 806 (D.D.C.1979). The question is whether the information is “confidential.” Different standards are used for determining whether information is confidential for Exemption 4 purposes depending on whether the information was required by the government or was volunteered to the government. Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 878 (D.C.Cir.1992), cert. denied, 507 U.S. 984, 113 S.Ct. 1579, 123 L.Ed.2d 147 (1993). Required information is “confidential” if its disclosure is likely to cause substantial harm to the competitive position of the person from whom it was obtained. National Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974). This standard requires a showing of “actual competition and a likelihood of substantial competitive injury.” CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1152 (D.C.Cir.1987). Voluntarily provided information is protected if it “would customarily not be released to the public by the person from whom it was obtained.” Critical Mass, 975 F.2d at 879. In this case it was the insolvent banks, and not the individual depositors, that were compelled to provide financial information to the government. The obvious question — whether Exemption 4 applies at all to one party’s information when it has been provided by another — is not answered by the briefs of the parties. It is, however, an academic question in this case, because depositors who have abandoned deposits, at least in District of Columbia and Virginia, have no continuing expectation of confidentiality. The District of Columbia and Virginia both presume that bank deposits have been abandoned after 5 years of inactivity, and both provide for publication of the names of depositors. D.C.Code § 42-206 & § 42-218; VA Code § 55-210.3:01 & § 55-210.13. Plaintiff properly points out that all persons having property in a state have constructive notice of the state statutes that govern the disposition of abandoned property. See Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 243-14, 64 S.Ct. 599, 604-05, 88 L.Ed. 692 (1944). Thus, without even reaching the question of whether disclosure of depositor information would likely cause substantial harm to anyone’s competitive position, it is clear that Exemption 4 is not applicable, because depositors who abandon their funds likewise relinquish their claims to confidentiality. 2. Exemption 6 FOIA also exempts from disclosure any information contained in “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 6 applies only to individuals, not businesses. Sims v. CIA, 642 F.2d 562, 572 n. 47 (D.C.Cir.1980). The phrase “similar files” includes all information that applies to a particular individual. Department of State v. Washington Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 1961-62, 72 L.Ed.2d 358 (1982). The dispute in this case is whether the disclosure of the names of individual depositors would constitute a “clearly unwarranted invasion of personal privacy.” In order to make that determination, I am required to balance the public interest in disclosure against the individual privacy interests that would be violated by disclosure. Department of State v. Ray, 502 U.S. 164, 175, 112 S.Ct. 541, 547-48, 116 L.Ed.2d 526 (1991). Defendant, relying upon National Ass’n of Retired Federal Employees v. Horner (“NARFE”), 879 F.2d 873 (D.C.Cir.1989), argues that substantial privacy interests are at stake in this case. In NARFE, a nonprofit association of retired federal employees sued under FOIA to compel the Office of Personnel Management to disclose a list of names and addresses of new annuitants. The Court of Appeals’ decision noted that “disclosure of names and addresses is not inherently and always a significant threat to the privacy of those listed; whether it is a significant or a de minimis threat depends upon the characteristic^) revealed by virtue of being on the particular list, and the consequences likely to ensue.” Id. at 877. Applying that analytical framework, the court concluded that invasion of the annuitants’ privacy would be “significant” and that there was “a substantial probability that the disclosure will lead to the threatened invasion [of privacy]: one need only assume that business people will not overlook an opportunity to get cheaply from the Government what otherwise comes dearly, a list of qualified prospects for all the special goods, services, and causes likely to appeal to financially secure retirees.” Id. at 878. In this ease, unlike NARFE, the information sought by plaintiff does not identify a group of individuals falling within a specific demographic category (such as elderly annuitants) that would lend itself to targeted marketing strategies and result in an “unwanted barrage of mailings and personal solicitations.” Id. at 876. The instant case is arguably more like Ditlow v. Shultz, 517 F.2d 166 (D.C.Cir.1975), where disclosure of a list of airline passengers who returned, from Asia and Australia during a period of a few months was held not to result in a substantial invasion of privacy because “the only consequence of the exposure ... is a mailed notice informing the person [on the disclosed list] that he is a member of a class and may be awarded damages for airline overcharges.” Id. at 170 n. 15. The invasion of privacy in this case is more limited than in NARFE, but it is not negligible. Solicitations by “money finders” may be unwelcome. A slight privacy interest is at stake in this case. That privacy interest must be balanced against the public interest that may be promoted by disclosure. It is well established that “the only relevant public interest in the FOIA balancing analysis [is] the extent to which disclosure of the information sought would ‘she[d] light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’” Department of Defense v. FLRA, 510 U.S. 487, 497, 114 S.Ct. 1006, 1013, 127 L.Ed.2d 325 (1994) (quoting Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 1481, 103 L.Ed.2d 774 (1989)). That purpose is not promoted, however, by “disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct.” Id. at 496, 114 S.Ct. at 1013 (internal quotations omitted). Plaintiff, who never directly identified a FOIA-related public interest component in his briefs or during oral argument, did suggest as part of his constitutional claim that plaintiff “is challenging FDIC’s abuse as to its deposit insurance fund.” PL Opp. to Mot. for Summ. Judg. at 7. That oblique 'allegation is more rhetoric than substance, however. Plaintiffs constitutional claim focuses only on whether the notice required by the statute is sufficient under the due process clause, not whether the FDIC has complied with its statutory obligations by failing to provide the notice required by the statute. Because plaintiff has not explained how disclosure of the requested names will “shed light on [FDIC’s] performance of its statutory duties or otherwise let citizens know what their government is up to,” he has failed to identify any cognizable public interest in the disclosure he seeks. “We need not linger over the balance; something, even a modest privacy interest, outweighs nothing [the public interest] every time.” NARFE, 879 F.2d at 879. Plaintiff goes on to argue that, even if Exemption 6 applies in this case, “[s]ome of the unclaimed depositor information” was published in the Washington Times newspaper (by the D.C. government, which requested and received the names of the depositors from the FDIC pursuant to Section 2(e) of Pub.L. No. 103-44) and is no longer protected because it is now publicly available. Pl. Statement of Material Facts, Statement # 2. A plaintiff asserting prior disclosure has the initial burden of pointing to specific information in the public domain that appears to duplicate that which is being withheld. See Public Citizen v. Dep’t of State, 11 F.3d 198, 201 (D.C.Cir.1993); Davis v. Dep’t of Justice, 968 F.2d 1276, 1279-80 (D.C.Cir.1992); Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 342 (D.C.Cir.1989); Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C.Cir.1983). Plaintiff cannot shift the burden of production to the government through naked allegations. He has “the burden of showing that there is a permanent public record of the exact portions he wishes [would be , disclosed].” Davis, 968 at 1280. See also Afshar, 702 F.2d at 1132 (prior, disclosure does not constitute waiver if it is in “some material respect different from that” which is being withheld). Here, plaintiff has failed to provide any evidence of the prior publication and has not sustained his burden. B. Due Process Claim Plaintiff alleges that FDIC will violate the due process clause, if it allows unclaimed deposits at the three banks to revert to the FDIC without first effecting general publication of the depositors’ names. Complaint ¶¶ 24 & 25. Since plaintiff concedes that FDIC is acting in accordance with its statutory obligations, I treat plaintiff’s claim as one that challenges the notice provisions of the statute as facially unconstitutional. 1. Standing In order to establish standing to raise the due process claim, plaintiff is required by Article III of the Constitution to show that 1) he has suffered or is threatened with some actual harm or direct injury 2) as a result of the defendant’s actions 3) that can likely be redressed by the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). Plaintiff, an independent money finder, maintains that he is faced with imminent injury if FDIC allows the unclaimed deposits to revert to FDIC without publishing the names of depositors. The alleged injury is the denial of the opportunity to develop a business relationship with depositors who have unclaimed deposits. The harm alleged by plaintiff is sufficiently concrete, given that plaintiff engages in money finding for his livelihood and plans to pursue business opportunities at banks that failed between 1989 and June 28, 1993. See Secretary of State of Maryland v. Munson Co., Inc., 467 U.S. 947, 958, 104 S.Ct. 2839, 2848, 81 L.Ed.2d 786 (1984) (injury-in-fact when challenged statute affects activity “at the heart of the business relationship between [plaintiff] and its clients”); Singleton v. Wulff, 428 U.S. 106, 115, 96 S.Ct. 2868, 2874-75, 49 L.Ed.2d 826 (1976) (plurality) (injury-in-fact because doctors receive payments for non-therapeutic abortions from Medicaid benefits). See also Women’s Equity Action League v. Cavazos, 879 F.2d 880, 886 (D.C.Cir.1989) (need only enhanced probability of gains if successful, not certainty of gains); Central Arizona Water Conservation Dist. v. U.S. Environmental Protection Agency, 990 F.2d 1531, 1538 (9th Cir.1993) (certainty about specific amount of loss not required). Moreover, FDIC has already taken steps to terminate the receivership of at least one of the banks and expressed the desire at oral argument to terminate the other two banks at the completion of this litigation. See Valley Forge Christian College v. Americans United for Separation of Church and State Inc., et al., 454 U.S. 464, 485, 102 S.Ct. 752, 765, 70 L.Ed.2d 700 (1982) (plaintiff must identify a personal injury suffered as a consequence of the alleged constitutional error). The statute, which will operate to revert unclaimed funds to FDIC at the termination of the receiverships, is the direct cause of plaintiffs injury. A ruling that the statute does not provide . constitutionally adequate notice would likely result in effective redress for plaintiff. Plaintiffs allegations are sufficient to establish the “irreducible minimum” elements of Constitutional standing, injury, causation, and redressability. Plaintiff must also overcome the prudential limitation on standing that litigants ordinarily may not be heard to raise the rights of others. Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034-35, 97 L.Ed. 1586 (1953)., In order to assert the rights of depositors plaintiff must show that: 1) he has a “close relationship to the third party” and 2) there “exist[s] some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 1370-71, 113 L.Ed.2d 411 (1991). But cf. Amato v. Wilentz, 952 F.2d 742 (3d Cir.1991) (concluding these factors are not required, just relevant).
12148380-12989	WILSON, Circuit Judge: Christopher Kellogg (“Kellogg”), a bankruptcy debtor, appeals from orders denying his motion for continuance, sustaining objections to his homestead exemption, and denying his motion for rehearing. For the reasons expressed below, we affirm. BACKGROUND In 1993, Appellee Palmer Schreiber (“Schreiber”) obtained a judgment lien against Kellogg for $512,863.76; Schreiber has been trying to collect it ever since. In 1995, Kellogg filed a voluntary Chapter 7 bankruptcy petition, claiming a Florida homestead exemption on his Palm Beach oceanfront property. Kellogg stated his homestead was approximately 1.3 “indivisible acres” in size. He valued the exemption at $799,432, the tax assessor’s value for the entire parcel. The bankruptcy trustee (Appellee Patricia Dzikowski) (the “Trustee”) and Schreiber objected to Kellogg’s claim because it exceeded Florida’s exemption for municipal property, which is limited to one-half acre. See Fla. Const. Art. X, § ⅛(0). The bankruptcy court set an evi-dentiary hearing on the objections. The hearing was continued twice and finally rescheduled for February 2,1996. When continuing the hearing to February 2, the judge set explicit deadlines for exchanging witness and exhibit lists and for terminating discovery. Kellogg did not submit witness and exhibit lists; nor did he complete discovery before the cutoff date. Neither did Kellogg respond to Schreiber’s interrogatories and requests for admission. Schreiber filed a motion-in-limine seeking to prohibit Kellogg from presenting any evidence at the hearing due to his failure to respond to discovery and noncompliance with the court’s scheduling order. Kellogg did not respond. One day before the hearing, Kellogg’s counsel filed a motion to withdraw as counsel due to irreconcilable differences, to continue the hearing, and for an extension of time to conduct further discovery. That same afternoon, Kellogg himself sent the court an ex parte facsimile stating he was dissatisfied with his counsel and did not object to his counsel’s withdrawal. On the day of the hearing, Kellogg did not appear, although his counsel did. The court indicated its intention to conduct the hearing as scheduled. Both Kellogg’s counsel and the bankruptcy court stated that they considered the homestead issues to be legal and not factual in nature. The Trustee and Schreiber presented the testimony of the Palm Beach zoning administrator. The administrator testified that Kellogg’s property was zoned “R-AA,” which is the largest state residential district in the town. For R-AA property, Palm Beach’s zoning laws required a minimum parcel size of 60,000 square feet with at least 150 feet fronting a road; therefore, Kellogg could not legally subdivide his 1.3 acre parcel. The bankruptcy court relied on the administrator’s testimony in ruling that “there is no legal or practical manner in which to subdivide the Debtor’s Homestead Property.” The court ruled that Kellogg’s property must therefore be sold and the proceeds apportioned between Kellogg and the bankruptcy estate. After the hearing, the bankruptcy judge granted Kellogg's former counsel’s motion to withdraw. After obtaining new counsel, Kellogg filed an amended schedule claiming a homestead exemption of $650,000, 81% of the value of the total real estate parcel. Kellogg also moved for a rehearing and reconsideration of the orders denying a continuance and directing the sale of the property. Kellogg’s motion was denied. Kellogg timely appealed to the district court, which affirmed the bankruptcy court. This appeal followed. JURISDICTION AND STANDARDS OF REVIEW This court has jurisdiction under 28 U.S.C. § 158(d). See In re Englander, 95 F.3d 1028, 1030 (11th Cir.1996) (appellate court has jurisdiction to review decision ordering sale of property claimed exempt as homestead); see also In re England, 975 F.2d 1168, 1172 (5th Cir.1992) (order granting or denying bankruptcy exemption is final and appealable) (citing cases). This court reviews the bankruptcy court’s factual findings for clear error and its legal determinations de novo. See In re Englander, 95 F.3d at 1030. Denials of motions for continuance, motions to withdraw, and motions for rehearing are reviewed for abuse of discretion. DISCUSSION The district court determined that the bankruptcy judge did not abuse his discretion in denying Kellogg’s motion for continuance and requiring Kellogg’s former counsel to represent Kellogg in the February 2,1996 hearing. Kellogg argues that he should have received a continuance because his differences with his former counsel prevented him from receiving adequate assistance of counsel at the hearing. Further, he argues, the only reason he did not appear at the hearing was because he had no reason to believe that the judge would actually rule on the homestead exemption. Given that Kellogg had already received one continuance and especially given Kellogg’s noncompliance with the judge’s scheduling order and failure to respond to discovery, the judge acted well within his discretion in denying a continuance. See, e.g., Arabian American Oil Co. v. Scar-fone, 939 F.2d 1472, 1479 (11th Cir.1991) (appellate court will reverse denial of continuance “ ‘only in extreme cases in which it clearly appears that the moving party was free of negligence.’ ”) (quoting Grüne-wald v. Missouri Pacific R.R., 331 F.2d 983, 986 (8th Cir.1964)). Neither did the bankruptcy judge abuse his discretion in denying Kellogg’s motion for reconsideration and rehearing. Because the order directing the sale of Kellogg’s property was final, Kellogg’s motion should be considered as a motion for new trial or amendment of judgment under Bankruptcy Rule 9023 (incorporating by reference Rule 59, Federal Rules of Civil Procedure). See Matter of Aguilar, 861 F.2d 873, 875 (5th Cir.1988); In re Investors Fla. Aggressive Growth Fund, Ltd., 168 B.R. 760, 768 (Bankr.N.D.Fla.1994). The only grounds for granting Kellogg’s motion are newly-discovered evidence or manifest errors of law or fact. See In re Investors, 168 B.R. at 768. On this appeal, Kellogg seeks reconsideration to present evidence regarding whether his property could lawfully be divided into two parcels. He also wishes to argue that he could have successfully received a variance. We find that Kellogg had plenty of opportunity to present his arguments and evidence in a timely manner at the February 2 hearing, but chose not to. Kellogg may not use a Rule 59(e) motion to raise arguments available but not advanced at the hearing. See Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir.1998). Also, Kellogg has not shown that any of the evidence he belatedly wishes to present was newly discovered. See Mays v. United States Postal Serv., 122 F.3d 43, 46 (11th Cir.1997) (“where a party attempts to introduce previously unsubmitted evidence on a motion to reconsider, the court should not grant the motion absent some showing that the evidence was not available”). Nor was there a manifest error or law or fact to justify altering or amending the judgment. Therefore, the judge did not err in denying Kellogg’s motion for reconsideration. These preliminary issues being disposed of, we may now turn to the main issue: whether Kellogg must be allowed to carve out a half-acre portion of his waterfront estate to keep as his homestead or whether the bankruptcy court may direct that the property be sold and the proceeds divided. The purpose of Florida’s homestead provision is to protect families from destitution and want by preserving their homes. See, e.g., In re Englander, 95 F.3d 1028, 1031 (11th Cir.1996); Frase v. Branch, 362 So.2d 317, 318 (Fla.Dist.Ct.App.1978). Homestead laws must be liberally construed, but not so liberally that they become “instruments of fraud, an imposition on creditors, or a means to escape honest debts.” Frase, 362 So.2d at 319. Kellogg’s property exceeds the one-half acre allowed for municipal homestead. He cannot declare as exempt his entire parcel, but may “select his homestead in any contiguous shape from his qualifying lands.” See Frase, 362 So.2d at 320; see also Shone v. Bellmore, 75 Fla. 515, 78 So. 605, 608 (1918) (owner may designate reasonably-shaped contiguous portion of land). Therefore, Kellogg may reasonably designate his one-half acre portion of the property, so long as the remaining portion has legal and practical use. See Englander, 95 F.3d at 1032 (disallowing partition when nonexempt parcel of land had no legal or practical use). The nonexempt parcel would have no legal or practical use to the Trustee because its conveyance would violate local zoning laws. Kellogg does not contest that Palm Beach township zoning regulations prohibit subdividing his land into parcels less than 60,000 square feet. Since Kellogg’s property is approximately 1.3 acres, it could not lawfully be subdivided without a variance. Separating Kellogg’s land into an exempt and a nonexempt parcel is equivalent to subdividing it, since turning over excess land to the trustee for disposition exposes neighboring landowners to precisely the same evils the zoning laws are intended to prevent-namely, allowing double-building on a parcel of land. If Kellogg could not lawfully divide his land into two parcels before declaring bankruptcy, he should not be allowed to use his homestead exemption to circumvent zoning regulations after thing his petition. Therefore, Kellogg could not carve out a half-acre parcel without a variance. The status of Kellogg’s property is determined as of the date he filed his petition. See, e.g., In re Crump, 2 B.R. 222, 223 (Bankr.S.D.Fla.1980). Because Kellogg had not obtained a variance before filing his petition, his property must be considered as indivisible. The bankruptcy court correctly directed a sale of the property and equitable allocation of the proceeds. See In re Englander, 95 F.3d at 1032 (“where the property is not divisible, the trustee could sell the property and the court would apportion the proceeds.”). Kellogg argues that the Englander rule only applies when the debtor artfully crafts his homestead to defraud his creditors by leaving a useless parcel. A careful reading of this court’s opinion does not reveal any such limitation; rather, this court ruled that partition was equitable and proper when the debtor’s homestead exceeded the amount allowed in the Florida constitution and was indivisible. See id.; see also O’Brien v. Heggen, 705 F.2d 1001 (8th Cir.1983), on which the England-er court relied. In O’Brien, the court allowed a sale of homestead with no showing of fraud. See id. None of the courts following Englander (even before its affirmance in the Eleventh Circuit) have limited its application to cases involving chicanery. See, e.g., In re Baxt, 188 B.R. 322, 324 (Bankr.S.D.Fla.1995). In Baxt, the debtor claimed an exemption in an entire 2.5-acre parcel that, like Kellogg’s, could not be conveyed into smaller parcels lawfully. The court refused to allow the zoning restrictions to enlarge the strict one-half acre limit: “The exemption protection pertains to ‘one-half acre,’ not to ‘one-half acre unless you five in Parkland.’ ” Id. Even though there was no showing of fraud on the part of the debtor, the court ruled that a sale and allocation of the proceeds was proper. See id. at 324-25; see also In re Nofsinger, 221 B.R. 1018 (Bankr.S.D.Fla.1998) (directing sale of property; no fraud shown). Kellogg argues that a local zoning ordinance cannot defeat his homestead exemption. But Kellogg will not be deprived of his homestead exemption; he may use his share of the proceeds to purchase a new homestead exempt from creditors’ claims. See Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So.2d 201 (Fla.1962). The Florida constitution grants Kellogg the right to exempt up to one-half acre of municipal property; it does not grant him the inalienable right to homestead in his particular part of Palm Beach, where he chose to live knowing his property could not be subdivided into an exempt one-half-acre parcel. CONCLUSION The district court correctly determined that the bankruptcy judge did not abuse his discretion in denying Kellogg’s motions for a continuance and rehearing. Even before the hearing, Kellogg missed deadlines for disclosing the witnesses and evidence he intended to present. His last-minute attempt to terminate his counsel did not justify a continuance. Neither did Kellogg’s failure to present evidence at the hearing warrant a rehearing or amendment of judgment when the evidence was available to Kellogg at the time of the evidentiary hearing. Further, Kellogg could not select a one-half acre portion of his property to be exempt homestead when the local zoning laws prohibited him from subdividing his property. The bankruptcy court correctly ordered the property sold and the proceeds divided. AFFIRMED. . An acre is 43,560 square feet of land. Black's Law Dictionary 25 (6th ed.1990).
4272261-20831	SUMMARY ORDER Plaintiff-Appellant-Cross-Appellee Judy Soley (“Soley”) brought claims in the United States District Court for the Southern District of New York (Wood, J.) against Defendant-Appellee-Cross-Appel-lant Peter Wasserman (“Wasserman”) for breaches of fiduciary duty and equitable accountings in regards to two of the parties’ financial collaborations: Patriot Partners, L.P. (“Patriot Partners”), a limited partnership for which Wasserman served as general partner until the part nership dissolved in 2006, and the “Joint Stocks,” a set of four initially private placement equities in which Soley, Wasser-man, and a mutual friend, Arthur Stern (“Stern”), jointly invested beginning in 1997. Soley received a jury trial on her claim for breach of fiduciary duty relating to Patriot Partners, at which the jury determined that Wasserman had breached his fiduciary duties and awarded damages. She then sought an equitable accounting from the bench, which the District Court denied on the ground that the jury verdict and damages award constituted an adequate legal remedy, rendering the accounting unavailable under New York law. So-ley then tried both her-breach of fiduciary duty and equitable accounting claims regarding the Joint Stocks to the bench, after which the District Court determined that she had not succeeded on her claim for breach of fiduciary duty but that she was entitled to an equitable accounting. Subsequent to both trials, the District Court denied Soley’s request for attorney’s fees, granted her prejudgment interest on her Joint Stocks accounting restitution award, and, ruling on Wasserman’s objection to the clerk of court’s bill of costs, affirmed the award of costs to Soley. So-ley now appeals from those judgments and orders of the District Court denying her claim for an equitable accounting in regards to Patriot Partners, denying her request to order Wasserman to submit a second accounting of the Joint Stocks (after Soley objected to the sufficiency of the first), and denying her request for attorney’s fees. Wasserman, in turn, cross-appeals from the District Court’s grant of prejudgment interest to Soley on her Joint Stocks restitution award and the District Court’s affirmance of the bill of costs. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. 1. The District Court’s denial of So-ley’s request for an equitable accounting of her interest in Patriot Partners In an April 17, 2013 order, the District Court determined that Soley’s claim that Wasserman, as general partner of Patriot Partners, breached his fiduciary duty and owed her compensatory damages, would be tried to a jury. Soley v. Wasserman, No. 08 CIV. 9262(KMW)(FM), 2013 WL 1655989, at 1 (S.D.N.Y. Apr. 17, 2013). In contrast, the District Court determined that Soley’s claim for an equitable accounting — predicated on the same breaches.of fiduciary duty, but seeking an accounting of Soley’s interest in Patriot Partners and, should the accounting warrant, disgorgement of unjust profits and restitution— would be addressed subsequently. Id. at 3. After the jury found the existence of several breaches of fiduciary duty and awarded Soley damages on some of those claims, Soley sought an equitable accounting, arguing to the court that, under New York law, “[i]f there is a fiduciary relationship between the parties ... then the existence of a legal remedy is not relevant” to a principal’s right to an accounting. A 416. The District Court disagreed, denying Soley’s claim for an equitable accounting on the ground that the jury verdict and damages award — pursuant to which Soley received “the benefit of full document discovery and numerous depositions” on her claim for breach of fiduciary duty — constituted an adequate remedy at law. Soley v. Wasserman, No. 08 CIV. 9262(KMW)(FM), 2013 WL 5780814, at 2 (S.D.N.Y. Oct. 24, 2013). Soley’s primary contention on appeal — and her sole contention to the District Court when she initially sought her equitable accounting — is that, under New York law, a principal in a fiduciary relationship is entitled to an equitable accounting regardless whether she has an adequate remedy at law. We disagree. New York law clearly requires that a principal demonstrate the unavailability of an “adequate remedy at law” in order to prevail on a claim for an equitable accounting, in addition to establishing the existence of a fiduciary relationship. See Unitel Telecard Distrib, Corp. v. Nunez, 90 A.D.3d 568, 569, 936 N.Y.S.2d 17 (N.Y.App.Div. 1st Dep’t 2011) (noting, first, that the existence of a “fiduciary relationship supports defendant’s claim for an accounting,” and, second, that “[t]o be entitled to an equitable accounting, a claimant must demonstrate that he or she has no adequate remedy at law”); accord Kastle v. Steibel, 120 A.D.2d 868, 869-70, 502 N.Y.S.2d 538 (N.Y.App.Div.3d Dep’t 1986); Hermes v. Compton, 260 A.D. 507, 507, 23 N.Y.S.2d 126 (N.Y.App.Div. 2d Dep’t 1940). Soley next argues, apparently in the alternative, that she did not receive an adequate remedy at law for three reasons. First, she contends that she did not receive adequate discovery in her jury trial. Assuming, arguendo, that the adequacy of discovery is material to whether a legal claim constitutes an adequate remedy under New York law, the argument nevertheless fails. As an initial matter, the District Court observed in ruling on So-leas motion for reconsideration that Soley had not made any argument as to the adequacy of discovery in her post-trial application seeking an equitable accounting. Soley v. Wasserman, No. 08 CIV. 9262(KMW)(FM), 2013 WL 6244428, at 1 (S.D.N.Y. Dec. 3, 2013). The issue is thus waived. See Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 159 (2d Cir. 2003) (“Generally, we will hot consider an argument on appeal that was raised for the first time below in a motion for reconsideration”). The argument is also without merit. The district court is afforded wide discretion in evaluating the sufficiency of discovery. See Cabellero v. City of New York, 48 A.D.3d 727, 728, 853 N.Y.S.2d 165 (N.Y.App.Div. 2d Dep’t 2008) (“The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the [trial court].”); Wills v. Amerada Hess Corp., 379 F.3d 32, 51 (2d Cir.2004) (“It is axiomatic that the trial court enjoys wide discretion in its handling of pre-trial discovery.”). Accordingly, it was within the District Court’s discretion to conclude that unproduced documents may no longer have existed, to limit the scope of discovery, and to determine that, notwithstanding the fact that not every conceivable document was produced, Soley received “the benefit of full document discovery and numerous depositions.” Soley, 2013 WL 5780814, at 2. Soley also argues that, in finding that the jury verdict and award of damages constituted an adequate remedy at law, the District Court in effect shifted the burden to Soley to prove that Wasserman retained funds that should be disgorged — whereas the burden would have been on Wasser-man in the context of an equitable accounting. See Wilde v. Wilde, 576 F.Supp.2d 595, 608 (S.D.N.Y.2008) (“Wilde 1 ”) (“[Defendant] bears the burden of proof and is presumed to have been unjustly enriched by all transfers and withdrawals unless he can show otherwise.”). Insofar as this is true, New York courts clearly do not consider this argument sufficient to render a legal claim inadequate, as it would effectively render all legal claims inadequate and thus constructively undermine the basic tenet expressed in Unitel Telecard, 90 A.D.3d at 569. Soley argues, finally, that she sought merely compensatory damages in her jury trial, whereas she sought restitution and disgorgement in her accounting, so that her legal remedy was inadequate. We need not address this claim, however, as Soley neither clearly made this argument to the District Court when seeking her equitable remedy subsequent to the verdict nor in her motion seeking reconsideration. See Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.2006) (“It is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.” (quoting Greene v. United States, 13 F.3d 577, 586 (2d Cir.1994)) (alteration omitted)); Official Comm. of Unsecured Creditors of Color Tile, Inc., 322 F.3d at 159. In short, on the basis of the arguments Soley actually presented to the District Court, and in light of New York law, the District Court did not err in denying Soley’s claim for an equitable accounting. 2. The District Court’s denial of So-ley’s request to order Wasserman to submit a second accounting On December 6, 2013, the District Court ordered Wasserman to account for Soley’s interests in the Joint Stocks, four initially private placements in which Soley, Wasserman, and Stern jointly invested beginning in 1997. Soley v. Wasserman, No. 08 CIV. 9262(KMW)(FM), 2013 WL 6388401, at 5 (S.D.N.Y. Dec. 6, 2013). Wasserman submitted an accounting on January 17, 2014, including a description of where and how any proceeds from the sale of the stocks had been deposited since that sale, a description of any warrants exercised for any of the stocks, and documentation including, inter alia, “near complete bank records for the entire 12-year period (from 2002 to the present)” which Wasserman claimed “confirm[ed] that the net funds [comprising proceeds from the only stock sold for value, in late 2001, minus any cognizable offsets] remained on deposit in [his wife’s] accounts at all times and were not ‘used’ [for the sake of unjustly enriching Wasserman] by him or his business ventures.” A 627. Wasserman further submitted a statement swearing to the accuracy of his accounting. After receiving this accounting, Soley vigorously objected that the accounting was insufficient because, inter alia, it provided her only redacted copies of Wasserman’s accounts (copies that blacked out detailed financial data but listed the overall value of the accounts in a given month), and that Was-serman had submitted insufficient documentation to prove every claim made in his narrative. On March 13, 2014, after receiving numerous letters from both parties regarding the sufficiency of the submitted accounting, the District Court both awarded Soley restitution, A 752, and denied her request to order Wasserman to submit another, more complete accounting. See A 749 (“Defendant submitted an accounting ...in accordance with the Court’s order.” (emphasis added)); A 752 n.2 (“The Court denies Plaintiff’s request that the Court order Defendant to complete another accounting.”). Soley argues, on appeal, that the Court erred in two ways: procedurally, by “failpng] to rule on the inadequacy of the accounting,” PI. Br. at 42, and “failing] to hold a hearing to make a final determination of the accounting,” id. at 46, and substantively, by concluding that Wasser-man had met “his initial burden of providing a facially sufficient accounting,” id. at 43. We review deferentially a trial court’s decisions regarding the sufficiency of an accounting. See Seretis v. Fashion Vault Corp., 110 A.D.3d 547, 548-49, 973 N.Y.S.2d 176 (NY.App.Div. 1st Dep’t 2013) (affirming a district court’s rejection of the “[plaintiffs objections to the adequacy of the information provided [during an equitable accounting]” and noting that “‘the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses’ ” (quoting Thoreson v. Penthouse Int’l, 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 (1992)) (alteration omitted)); see also In re Estate of Capaldo, 263 A.D.2d 910, 912, 694 N.Y.S.2d 233 (N.Y.App.Div. 3d Dep’t 1999); Perry v. Blum, 629 F.3d 1, 14 (1st Cir.2010) (“The calculation of an equitable accounting is, within broad limits, committed to the district court’s discretion.”). The “failure to conduct a hearing” is reviewed for abuse of discretion. 1420 Concourse Corp. v. Cruz, 175 A.D.2d 747, 749, 573 N.Y.S.2d 669 (N.Y.App.Div. 1st Dep’t 1991). Here, and contrary to Soley’s claim on appeal, the District Court clearly did rule on her objections, and it was not unreasonable for the court to decline to order a hearing: Soley sent extensive letters to the District Court explaining her objections, and we discern no basis to conclude that a hearing would have been necessary for the court to fully evaluate her claims. As to the substance of the District Court’s determination, the Plaintiff has not demonstrated any error regarding the District Court’s determination that the accounting was sufficient. First, sworn testimony submitted in support of an accounting does constitute relevant evidence that the district court may consider when evaluating an accounting, even when it is not, in every case, supported by documentation. See Wilde v. Wilde, No. 07 CIV. 0677(WHP), 2008 WL 5411915, at 1-2 (S.D.N.Y. Dec. 30, 2008) {“Wilde 2”) (“Without any means to determine that the rental value of the Florida Condominium was $1,600 per month or even $1,000 per month, the Court will accept [defendant's sworn statement that it was $800 per month.”); Seretis, 110 A.D.3d at 548, 973 N.Y.S.2d 176 (“At trial [defendant] produced the financial records of [the relevant entity] and testified under oath regarding the disposition of the corporate assets, which fulfills defendants’ obligation to account.”). Wasserman swore to the accuracy of his accounting, including the disposition of the Plaintiffs proceeds from the sale of the relevant stock — facts of which Wasserman had personal knowledge and to which he could attest. Contrast In re Kaszirer v. Kaszirer, 298 A.D.2d 109, 110, 747 N.Y.S.2d 502 (NY.App.Div. 1st Dep’t 2002) (finding that, because accountant’s analysis and affidavit failed to specify documentation underlying his opinion, and were generally hearsay, “burden never shifted to petitioners to submit evidence in opposition”). Second, Wasserman produced extensive records, including Bank of America records, documenting that he retained funds equal to or greater than the relevant proceeds in his accounts, which he did not withdraw. Even if there were gaps in Wassermaris documentation, we cannot say that this accounting was so deficient that it was error to approve it. 3. The District Court’s denial of So-ley’s request for attorney’s fees Soley next argues that the District Court committed error in declining to award her attorney’s fees, a matter we review for abuse of discretion. McDaniel v. County of Schenectady, 595 F.3d 411, 416 (2d Cir.2010). Soley contends that the District Court misunderstood the holdings of Miltland Raleigh-Durham v. Myers, 807 F.Supp. 1025, 1062 (S.D.N.Y.1992), and Birnbaum v. Birnbaum, 157 A.D.2d 177, 191, 555 N.Y.S.2d 982 (N.Y.App.Div. 4th Dep’t 1990), which, she claims, together stand for the general proposition that under New York law “the American Rule does not apply where a fiduciary has been found liable for misconduct.” PI. Br. at 51 (internal citations omitted). The District Court instead understood these cases as standing for the narrower proposition “that a fiduciary is liable for attorney’s fees and other expenses incurred by an estate in exposing a trustee’s misconduct.” SPA 12 (quoting Miltland, 807 F.Supp. at 1062). The District Court was, in fact, correct. See Schneidman v. Tollman, 261 A.D.2d 289, 290, 691 N.Y.S.2d 58 (N.Y.App.Div. 1st Dep’t 1999) (“The motion court’s expansion of Matter of Bim-baum v. Bimbaum ..., which permitted the award of attorneys’ fees for a testamentary trustee’s breach of fiduciary duty to cases, involving a breach of fiduciary duty in a non-testamentary context, is unsupported by the law [and] unwarranted ____”). Soley’s claim to the contrary is wholly without merit. 4. The District Court’s award of prejudgment interest to Soley We next turn to ' Wasserman’s claim, in his cross appeal, that the District Court erred in awarding prejudgment interest to Soley. In its decision awarding Soley an accounting on the Joint Stocks, the District Court found,, as fact, that “Plaintiff .,. understood that once the shares of a stock purchased as a private placement were made publicly tradable, they would be sold and Defendant would pay Plaintiff her proportionate share of the proceeds.” Soley, 2013 WL 6388401, at 1. In so finding, the Distinct Court cited to an affirmation as to this understanding in So-ley’s sworn trial affidavit. See A 202 ¶ 3. In his trial affidavit, Wasserman affirmed, instead, that the parties had no expectation that he would provide Soley proceeds from any sale until “the last of the investments were liquidated.” AA105 ¶ 3. Relying on his understanding of the agreement, Wasserman argued to the District Court (in the District Court’s words) that “because the last of the joint stock has not been sold, Plaintiff [would] receive the ... sale proceeds earlier than the parties had agreed, and has therefore not suffered any loss for which she needs prejudgment interest to compensate.” A 781. In awarding prejudgment interest to Soley, the District Court relied on its contrary finding of fact in its earlier decision finding the agreement to be as Soley understood it, and thus held that “[b]ecause Defendant has had the use of Plaintiffs share of the proceeds for nearly thirteen years, not awarding interest would result in a windfall to Defendant.” A 781. “The award of interest is generally within the discretion of the district court and will not be overturned on appeal absent an abuse of that discretion.” New England Ins. Co. v. Healthcare Underwriters Mut. Ins. Co., 352 F.3d 599, 602-03 (2d Cir.2003). On appeal, Wasserman contends only that the District Court erred in finding that the agreement was as Soley characterized it on the ground that reliance on the Soley affidavit for this factual proposition violated the law of the case. Wasserman points this Court to the District Court’s June 21, 2013 motion in li-mine precluding Soley “from adducing evidence intended to establish” an untimely breach of contract claim arising out of a theory that Wasserman was obligated to sell the stocks when they became publicly tradable in 2001. Soley, 2013 WL 3185555, at 8. Wasserman contends that Soley’s July 19, 2013 statement, in her bench trial affidavit, that she “understood that once the shares of a stock purchased as a pri vate placement were publicly tradable, the shares would be sold and Wasserman would pay me my proportionate share of the proceeds,” A 202 ¶ 3, was thus excluded by the June 21, 2013 motion in limine, and reliance upon that statement was legal error. Wasserman’s argument is without merit. The District Court explicitly held in its motion in limine that “[t]his limitation ... ‘does not preclude Soley from asserting a claim that Wasserman violated his fiduciary duty “by refusing to account” for the Joint Stock Investments when Soley requested an accounting.’ ” Soley, 2013 WL 3185555, at 8 (quoting Soley v. Wasserman, No. 08 CIV. 9262(KMW)(FM), 2013 WL 526732, at *7 (S.D.N.Y. Feb. 13, 2013)). In awarding prejudgment interest to Soley from December 2001, the District Court clearly found that the question whether the parties had agreed that Was-serman would return the stock when it was sold in 2001 was material to this aspect of the accounting claim. As such, even if the District Court’s prior order rendered the affidavit inadmissible for the purpose of proving an untimely contract claim, that order did not affect the affidavit’s admissibility for the purpose for which the District Court used it: calculating interest on an admissible claim. See AA 151-54 (in which the District Court responded to a slightly different iteration of this law of the case argument proffered by Wasser-man by noting that “[t]he Court ordered interest on Plaintiffs accounting claim, not on her dismissed breach of contract claim,” AA 154). Further, even if the District Court’s prior order rendered Soley’s statement in her affidavit initially inadmissible, Wasserman, by testifying to the nature of the Agreement in his affidavit, offering testimony from Stern on this same question, and relying on this cumulative testimony to construct a contract defense theory in the prejudgment interest phase of the proceedings, clearly opened the door such that the District Court could properly rely on Soley’s affidavit for purposes of finding this fact. 5. The District Court’s affirmance of the bill of costs
533839-20655	DOBIE, Circuit Judge. Charles Harris, claimant herein, was the owner of a Chevrolet truck. This truck was forfeited to the Government, when the truck was discovered in the transportation of illegal liquor, while in the possession of Raymond Davis. Harris sought relief from the forfeiture in the United States District Court for the Eastern District of Virginia. As the basis for this relief, Harris asserted that he parted with the possession of the truck to Davis, in the course of his U-Drive-It business, in good faith and utterly ignorant both of the illegal use to which the truck was to be put, and also of the bad reputation and past record of Davis in the field of trafficking in illegal liquor. The District Court, after hearing the evidence and arguments, concluded that Section 3617(b)(3), Title 18 U.S.C.A. was applicable to Harris and that his admitted failure to make the statutory inquiries as to the reputation and record of Davis as a violator of the liquor laws disqualified him for the relief he sought. Harris has appealed to us. There is little or no conflict in the facts. Davis, unbeknown to Harris, had been convicted of violating, and had the reputation of being a violator of, the liquor laws. Harris, “an honest, industrious, law-abiding Negro * * * operates a service station and rents trucks to those who wish to hire a truck” (District Court’s Opinion). Davis had been purchasing gas and oil for his automobile from Harris for a while when, on the night prior to the episode in question, he asked Harris to rent him a truck for the following day. Harris asked and received $25 from Davis for the use of the truck but Harris made no inquiries of Davis. This is the first libel ever filed against one of appellant’s trucks. According to the District Court, “It may be conceded that the claimant acted in good faith.” Title 18 U.S.C.A. § 3617(a) gives to the Court decreeing forfeiture of a vehicle the power to remit or mitigate the forfeiture. Subsection (b) thereof then provides as follows: “Conditions precedent to remission or mitigation. In any such proceeding the court shall not allow the claim of any claimant for remission or mitigation unless and until he proves (1) that he has an interest in such vehicle or aircraft, as owner or otherwise, which he acquired in good faith, (2) that he had at no time any knowledge or reason to believe that it was being or would be used in the violation of laws of the United States or of any State relating to liquor, and (3) if it appears that the interest asserted by the claimant arises out of or is in any way subject to any contract or agreement under which any person having a record or reputation for violating laws of the United States or of any State relating to liquor has a right with respect to such vehicle or aircraft, that, before such claimant acquired his interest, or such other person acquired his right under such contract or agreement, whichever occurred later, the claimant, his officer or agent, was informed in answer to his inquiry, at the headquarters of the sheriff, chief of police, principal Federal internal-revenue officer engaged in the enforcement of the liquor laws, or other principal local or Federal law-enforcement officer of the locality in which such other person acquired his right under such contract or agreement, of the locality in which such other person then resided, and of each locality in which the claimant has made any other inquiry as to the character or financial standing of such other person, that such other person had no such record or reputation.” Harris admittedly fulfilled requirements (1) and (2) of Subsection (b) and contends that (3) is not applicable to those engaged in the U-Drive-It business, the specified inquiries being required only of those doing a banking, financing or other type business in which it is customary to make credit inquiries about those who are to have possession of the vehicle. The sole question here involved is whether the provisions of Section 3617 (b)(3) of Title 18 U.S.C.A., requiring certain inquiries of designated law enforcement officials by one delivering possession of a motor vehicle to another is applicable to one renting a vehicle in the usual course of his U-Drive-It business. Or, to be specific, whether, in the instant case, the admitted non-compliance with Section 3617(b) (3) by Harris, deprived the District Court of power to remit the forfeiture. A brief outline of legislation antecedent to the statute before us seems in order. From at least the Acts of July 13, 1866, and June 6, 1872, 26 U.S.C.A. § 1624, all vehicles and conveyances used with intent to defraud the Government in tax matters were forfeit; but the Secretary of the Treasury in matters involving $500.00 or less had authority “upon satisfactory proof, to be fur nished in such manner as he shall prescribe * * ” to remit such forfeiture if “incurred without willful negligence or any intention of fraud on the part of the owner of said property.” In matters involving over $500 this authority was given to the Secretary of Treasury and the Attorney General. After the enactment of the National Prohibition Act, the power of remission in alcoholic matters was given to the Secretary of the Treasury or, if under the Customs Laws, to the Secretary of Commerce in the absence of “willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law * 19 U.S.C.A. § 1618. This was the state of the law when Congress came to consider the enactment of the statute now under discussion. There is nothing to indicate that under the former statutes it was customary for these cabinet officers to require that specified inquiries under the present Act be made as to U-Drive-It Companies. The Secretaries of the Treasury and Commerce and the Attorney General were unrestricted in matters of remission save as to a finding that there had been no willful negligence or intent to defraud or violate the law on the part of the petitioner. This brings us to the decided cases. In United States v. Drive New Cars, Inc., 10 Cir., 208 F.2d 774, Circuit Judge Phillips denied remission. The owner of the cars rented them on a semi-permanent basis to a taxi-cab company, to be used as taxis. A bank held a chattel mortgage on the cars also. Both the owner and the bank sought remission from the forfeiture. Although it was found that both the bank and the owner acted in good faith and without any knowledge that the vehicles would be used in violation of the laws of the United States, both parties were held not to be entitled to remission because of failure to comply with 18 U.S.C.A. § 3617(b)(3). It is noteworthy, however, that the opinion was not concerned with the question of whether the Statute applied to a car rental agency, but dealt exclusively with an interpretation of what constituted compliance with the above-enumerated section of the Statute. Likewise, the case of Pittsburgh Parking Garages, Inc., v. United States, 3 Cir., 108 F.2d 35, involved a vehicle owned by the named corporation, leased to an individual and seized in the possession of the lessee while violating the alcohol tax laws. Again, the applicability of the remission Statute to a lessor of the truck was not discussed in the opinion. The opinion of Judge Biddle was directed to a holding that, when compliance with 18 U.S.C.A. § 3617 (then Act Aug. 27, 1935, § 204, 27 U.S.C.A. § 40a) (b)(1) and (2) has been shown, then compliance with (b) (3) is only required after a showing by the Government that inquiry would have revealed the reputation for liquor law violation. Thus, while these two cases, in total effect, held that a lessor of a vehicle was subject to all the conditions of the Statute, that exact question was not really before the courts and was not discussed in the opinions. United States v. One 1936 Studebaker Sedan, D.C.W.D.Wash.N.D., 21 F.Supp. 499, is another such case. Here the vehicle was owned by a car rental agency and a chattel mortgage on the car was held by C. I. T. Corporation. An arrangement was made between C. I. T. Corporation and the rental agency whereby regular and thorough investigations would be made of each lessee, but this system was not followed, and had not been followed for nearly two years. Here again it was apparently assumed that the lessor was bound by all conditions of the Statute and the primary question was whether C. I. T. was likewise bound by all the requirements of the Statute. In denying remission or mitigation, District Judge Neterer said: “To be entitled to remission and/or mitigation under section 40a .(b)(3), the C. I. T. corporation must show that at the time it acquired its interest, and at the time the bailee under the ‘Drive-Yourself’ contract ‘obtained the auto, it by its officers or agents made inquiry at * * * the headquarters of the * * * principal Federal Internal Revenue officer * * ” 21 F.Supp. 501. That was the principal holding of this case and, again, it cannot be said that the Court came directly to grips with the question involved in the instant appeal. In United States v. One Chevrolet Sedan, D.C.E.D.Pa., 18 F.Supp. 799, District Judge Maris held that he could not remit the forfeiture of an automobile used in the transportation of illegal liquor in favor of the innocent assignee of the lessor of the automobile, since the as-signee failed to show that it had made the proper inquiry of the law enforcement officers and, at the time the lease was made, the lessee had a record of liquor law violation and proper inquiry would have so revealed. Thus, in this case as in the cases to which we have heretofore referred, it was apparently assumed by the Court that the lessor of an automobile was embraced within the limitations of the Statute to the same extent as a mortgagee or a party to a conditional sales contract, and the opinion dealt principally with the construction and applicability of other aspects of the Statute. Although the precise question before us seems not to have been seriously discussed in any opinion, there appear to be grounds to sustain a more lenient interpretation of the Act in its application to automobile rental agencies. It has been held that the Act is inapplicable to lenders of an automobile. United States v. Frank Graham Co., 5 Cir., 199 F.2d 499. And see, Wright v. United States, 4 Cir., 192 F.2d 216; United States v. One 1936 Model Ford Coach Auto, D.C., 58 F.Supp. 802. It has also been held that a taxi driver is not required to make investigation of his passengers. United States v. One Haynes Automobile, 9 Cir., 290 F. 399. In C. I. T. Corporation v. United States, 4 Cir., 89 F.2d 977, Circuit Judge Soper had under consideration the situation of a conditional sale by a finance company of an automobile to a person with no criminal record, who was acting as a “shield” or “fence” for known bootleggers. In his opinion, 89 F.2d at page 979, Judge Soper said: “Manifestly the act was passed to ameliorate the hardships suffered by innocent lienors from the seizure of offending vehicles, and the reference in the third condition of the act to interests of the claimant and of the violator of the law in the vehicle under a contract or agreement shows that Congress had especially in mind the rights of finance companies under conditional sales contracts which undoubtedly constitute the most numerous class to which the act applies.” Perhaps the strongest persuasion to liberality in the instant case will be found in United States v. One 1936 Ford V-8 Deluxe Coach, 307 U.S. 219, 59 S. Ct. 861, 83 L.Ed. 1249. This case, like the one last mentioned, dealt with the purchase of an automobile, through a finance company, by a “straw” man. In determining the applicability of the statutory requirements to this situation,, Mr. Justice McReynolds thoroughly reviewed the history of the Act and concluded that it should be liberally interpreted in favor of remission. Although he was not considering the point immediately before us, it is interesting to note that he quoted, in a footnote 307 U.S. at pages 233 and 234, 59 S.Ct. at page 868, House Reports, Vol. 4, 74th Congress, 1st Session, 1935, Report No. 1601, p. 6, which report stated in part: “This last requirement ( (b)(3) ) is predicated upon the recognition of the ‘bootleg hazard’ as an element to be considered in investigating a person as a credit risk. As a matter of sound business practice, automobile dealers, finance companies, and prospective lien-holders on au tomobiles examine records, and make inquiry of references and credit rating agencies as to the owner’s or prospective purchaser’s reputation for paying his debts and his ability to do so. This subsection merely requires that in the making of such inquiry, the ‘bootleg hazard/ also be examined as one aspect of the credit risk.” (Italics ours.) In commenting upon this passage, Mr. Justice McReynolds said, 307 U.S. at pages 236-237, 59 S.Ct. at pages 869-870: “These facts indicate that Congress intended a reasonable inquiry concerning the bootleg risk should be made in connection with the investigation of financial responsibility. They negative the motion that wholly innocent claimant at his peril must show inquiry concerning something unknown and of which he had no suspicion. Dealers do not investigate what they have no cause to suspect. “The forfeiture acts are exceedingly drastic. They were intended for protection of the revenues, not to punish without fault. It would require unclouded language to compel the conclusion that Congress abandoned the equitable policy, observed for a very long time, of relieving those who act in good faith and without negligence, and adopted an oppressive amendment not demanded by the tax officials or pointed out in the reports of its committees.” (Italics ours.) This brings us to the case of United States v. One Ford Coach, D.C.W.D.Va., 20 F.Supp. 44, upon which the District Judge below largely based his decision. The automobile in that case was sold to one Burch and the financing was handled through the Morris Plan Bank. At the time of the seizure of the automobile, it was being used by someone other than Burch. Morris Plan Bank, seeking remission, asserted that it was entitled to remission because of compliance with 27 U.S.C.A. § 40a — it had an interest in the automobile; it had no knowledge or reason to believe that Burch was involved in bootlegging; and an investigation would have revealed that Burch had no reputation for law violation. These latter facts were not contested. There were other facts, however, which showed wanton negligence by Morris Plan. It had received information as to Burch’s employment and home address. Investigation of these sources would have shown that Burch was not employed as stated and that his home address was, in fact, the address of a notorious bootlegger. Further investigation would also have shown that Burch, at the time of his purchase of the automobile, was accompanied by that same bootlegger and had apparently been acting in only a “straw” capacity. Thus, the question before Judge Paul was whether, even though the requirements of the Statute had been met, he still had the discretion to deny remission because of this gross negligence of Morris Plan in its inadequate investigation of Burch. He held that even if the statutory requirements were met, remission was not mandatory upon the courts. He, accordingly, exercised his discretion to enforce the forfeiture without mitigation. In the opinion in the instant case below, the District Judge stated: “Because of the language of the statute and the decision construing that language by a district court of Virginia, this court is constrained to deny the claimant’s petition for remission. The opinion in the Virginia case referred to, United States v. One Ford Coach, D.C., 20 F.Supp. 44, reviews the legislative history and purpose of the forfeiture seizure and holds that the statute is absolute and unconditional in its provisions for forfeiture, and recognizes no exceptions in favor of innocent owners or lienors. The Court said that it was without power to consider any remission or mitigation except upon the showing that the conditions of the statute had been met. Except for that decision this court might have considered further the inherent power of United States Courts to grant relief against the severity of forfeiture in such a case as this. If the interpretation of the language of the statute is to be changed for this district this court feels that an appellate court or the Congress should do it.” The case of United States v. One Ford Coach, D.C., 20 F.Supp. 44, did not involve a claimant who rented his car to one who used it in illegal liquor traffic. In that case, a bank was involved. At 20 F.Supp. page 44, Judge Paul thus began his opinion: “The Morris Plan Bank has filed its petition for remission of forfeiture of a Ford automobile seized by officers of the government while engaged in transporting ardent spirits upon which the tax had not been paid. The petitioner asserts an interest in the automobile by virtue of a conditional contract of sale”. (Italics ours.) Again, at 20 F.Supp. page 47, Judge Paul said: “This is the simple case of a bootlegger buying an automobile for use in his illegal business and causing the title to be placed in the name of an acquiescent straw man who, in fact, had nothing to do with the control, custody, or use of the car. It is a device of increasingly frequent use by bootleggers.” Accordingly, that case, upon which the District Judge largely based his decision, is a far cry from the instant case before us, and the problem which we must decide. See, also, United States v. Ford Truck, 3 Cir., 115 F.2d 864; United States v. Automobile Financing, Inc., 5 Cir., 99 F.2d 498; Federal Motor Finance v. United States, 8 Cir., 88 F.2d 90; The Dependent, 5 Cir., 24 F.2d 538; United States v. One Hudson Hornet Sedan, D.C., 110 F.Supp. 41; United States v. One Chevrolet Stylemaster Sedan, D.C., 91 F.Supp. 272; United States v. One 1941 Chrysler Brougham Sedan, D.C., 74 F.Supp. 970, 971; United States v. One Studebaker Coupe, D.C., 39 F.Supp. 250; United States v. One Black Horse, 1 Cir., 129 F. 167. The transaction here between Harris and Davis was clearly a bailment for the mutual benefit of the bailor and bailee, a locatio rei, or the hired use of a thing. In such a bailment, “The bailee acquires the right, as against the world, to hold and use the hired chattel during the time stipulated in the contract of hiring. His interest therefore is clearly a special property.” Dobie on Bailments and Carriers, § 48, p. 112. Manifestly, then, the case comes within the letter of 18 U.S.C.A. § 3617(b)(3), for claimant’s interest is “subject to any contract or agreement under which any person having a record or reputation for violating laws of the United States or of any State relating to liquor has a right with respect to such vehicle”. And the statutory inquiry must be made “before such claimant acquired his interest, or such other person acquired his right under such contract or agreement”. We think, however, that claimant does not come under either the spirit of the Act, or the legislative intent, or the end and purpose which Congress had in mind when the Act was passed. We believe that § 3617 (b) (3) is not applicable to those engaged in the customary course of the U-Drive-It business; and it is applicable primarily to those doing a banking, financing or other similar type of business, involving chattel mortgages, conditional sales, lending money with the vehicles as security for the loan, in all of which it is customary to make credit inquiries about those who are to have possession of the vehicle. It is well settled that liberal interpretation of a statute leading to absurd or unjust results is to be avoided and that the statute should be given a meaning in accord with its spirit and the purpose of its enactment. As said by Mr. Justice Field in United States v. Kirby, 7 Wall 482, 486, 19 L.Ed. 278, in a passage quoted with approval by Chief Justice Hughes in Sorrells v. United States, 287 U.S. 435, 447, 53 S.Ct. 210, 214, 77 L.Ed. 413: “ ‘All laws should receive a sensible construction. General terms should be so limited in their application as not to .lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.’ ”
3553913-19520	MEMORANDUM OPINION SUE L. ROBINSON, District Judge. I. INTRODUCTION On April 11, 2011, Walker Digital LLC (“plaintiff’) filed the present patent infringement litigation against Fandango, Inc., Expedia, Inc., Amazon, Inc. (“Amazon”), eBay, Inc., American Airlines, Inc., and Zappos.com, Inc. (“Zappos”) (collectively, the “defendants”). (D.I. 1) Plaintiff filed the first amended complaint on July 29, 2011, alleging the infringement of two patents: U.S. Patent Nos. 7,831,470 (“the '470 patent”) and 7,827,056 (“the '056 patent”) (collectively, the “patents-in-suit”). (D.I. 51) Defendants Amazon and Zappos (collectively, “moving defendants”) moved to dismiss with prejudice the claims against them in plaintiffs first amended complaint under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. (D.I. 57) That motion is currently before the court. The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1338(a). For the reasons that follow, moving defendants’ motion to dismiss is denied. II. BACKGROUND Plaintiff is a Delaware limited liability company with its principal place of business in Stamford, Connecticut. (D.I. 51 at ¶ 1) Amazon is a Delaware corporation with its principal place of business in Seattle, Washington. (Id. at ¶ 4) Zappos is a Delaware corporation with its principal place of business in Henderson, Nevada. (Id. at ¶ 7) Plaintiff is the owner of the patents-in-suit. (Id. at ¶¶ 12, 13) The '470 patent issued November 9, 2010 and is entitled “Method and Apparatus for Facilitating Electronic Commerce Through Providing Cross-Benefits During a Transaction.” (Id. at ex. 1) The '056 patent issued November 2, 2010 and is also entitled “Method and Apparatus for Facilitating Electronic Commerce Though Providing Cross-Benefits During a Transaction.” (Id. at ex. 2) Plaintiff claims Amazon “has and continues to directly infringe one or more claims of the '470 patent in this judicial district and/or elsewhere in the United States, including at least claims 16, 21 and 22, by, among other things, making, using, offering for sale, selling and/or importing apparatuses and/or practicing methods that provide cross-benefits during a transaction including, but not limited to, that provide Amazon’s users/customers the ability to receive a benefit in connection with a purchase via a cross-promotion as seen in the screen shots included as Exhibit 3.” (Id. at ¶ 33) Plaintiff asserts Amazon “has and continues to indirectly infringe one or more claims of the '470 patent” based on the above conduct, and “continues to willfully, wantonly and deliberately infringe the '470 patent.” (Id. at ¶¶ 37, 51) Plaintiff also claims Amazon has and continues to directly, indirectly and willfully infringe the '056 patent. (Id. at ¶¶ 69, 73, 87) Because plaintiff uses language that mirrors the claims against Amazon for infringement of the '470 patent, the court will discuss claims against Amazon for infringement of the '056 patent in the context of the '470 patent. Plaintiff claims Zappos “has and continues to directly infringe one or more claims of the '056 patent in this judicial district and/or elsewhere in the United States, including at least claims 1, 47 and 48, by, among other things, making, using, offering for sale, selling and/or importing apparatuses and/or practicing methods that provide cross-benefits during a transaction including, but not limited to, that provide Zappos’ users and/or customers with the ability to receive a benefit in connection with a purchase via a cross-promotion as seen in the screen shots included as Exhibit 4.” (Id. at ¶ 112) Plaintiff asserts Zappos “has and continues to indirectly infringe one or more claims of the '056 patent” based on the above conduct, and “continues to willfully, wantonly and deliberately infringe the '056 patent.” (Id. at ¶¶ 116, 130) Moving defendants argue that plaintiffs amended complaint is ripe for dismissal for failure to state a claim because the “accused marketing promotions on their face show that they do not satisfy the ‘unless and until’ claim limitation” of the patents-in-suit. (D.I. 58 at 5) Moving defendants also argue that plaintiffs amended complaint lacks factual allegations sufficient to state a claim for indirect and willful infringement. (Id. at 3) III. STANDARD OF REVIEW A. Federal Rules of Civil Procedure 8 and 12(b)(6) In reviewing a motion to dismiss filed under Fed.R.Civ.P. 12(b)(6), the court must accept the factual allegations of the non-moving party as true and draw all reasonable inferences in its favor. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (interpreting Fed.R.Civ.P. 8) (internal quotations omitted). A complaint does not need detailed factual allegations; however, “a plaintiffs obligation to provide the ‘grounds’ of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citation omitted). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). Such a determination is a context-specific task requiring the court “to draw on its judicial experience and common sense.” (Id.) At the pleading stage in a patent case, the information required by Form 18 has been deemed adequate notice to pass muster under Rule 8. See McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 (Fed. Cir.2007). In this regard, Form 18 requires that the following information be provided in a complaint for direct infringement: (1) an allegation of jurisdiction; (2) a statement that plaintiff owns each patent at issue and, for each such patent, its number, date of issuance, and the general invention described therein; (3) for each defendant accused of infringement, identification of the accused product, process or method “that embod[ies] the patented invention;” and (4) a demand for relief, including injunctive relief and/or an accounting for damages. IV. DISCUSSION A. Direct Infringement Moving defendants argue that the accused marketing promotions “plainly do not infringe any of the asserted claims of the patents-in-suit.” (D.I. 58 at 5) Moving defendants argue that the promotions conflict with the plain meaning of the “unless and until” limitation in all asserted claims, thereby precluding any possibility of infringement. (Id. at 5, 16) Plaintiff argues that moving defendants’ noninfringement arguments are premature, and asserts that “claim construction is not properly decided on a motion to dismiss and is necessary to address [moving] defendants’ noninfringement arguments.” (D.I. 61 at 5) Plaintiff has provided information required by Form 18 adequate to pass muster under Rule 8. See McZeal, 501 F.3d at 1357. Plaintiff has sufficiently pled facts necessary to place moving defendants on notice as to what they must defend, as the amended complaint includes: (1) an allegation of jurisdiction; (2) a statement that plaintiff owns the patents-in-suit with the corresponding number and date of issuance; (3) identification of the accused product; and (4) demand for relief. (D.I. 51 at ¶¶ 8, 9,14, 33,112) The court concludes, therefore, that dismissing the amended complaint on the grounds that it fails to state a claim for direct infringement would be premature. The court is not prepared to engage in a claim construction exercise at this stage of the proceedings, with no context whatsoever provided by discovery or a motion practice. See, e.g., Internet Media Corp. v. Hearst Newspapers, LLC, Civ. No. 10-690-SLR, 2011 WL 2559556, at 3 (D.Del. June 28, 2011); Deston Therapeutics LLC v. Trigen Labs. Inc., 723 F.Supp.2d 665, 670 (D.Del.2010); Progressive Casualty Insurance Co. v. Safeco Insurance Co., Civ. No. 10-1370, 2010 WL 4698576, at 4 (N.D.Ohio Nov. 12, 2010). The court may address with the parties an early claim construction of dispositive limitations, once a full and fair exchange of fundamental documents has been accomplished. (See, the court’s “Default Standard for Discovery, Including Discovery of Electronically Stored Information (“ESI”),” ¶ 4). B. Indirect Infringement 1. Inducement standard Under 35 U.S.C. § 271(b), “[wjhoever actively induces infringement of a patent shall be liable as an infringer.” To demonstrate inducement of infringement, the patentee must establish, first, that there has been direct infringement and, second, that the alleged infringer had “knowledge that the induced acts constitute patent infringement.” Global-Tech Appliances, Inc. v. SEB S.A., — U.S. -, 131 S.Ct. 2060, 2068, 179 L.Ed.2d 1167 (2011) (“Global-Tech”). “Inducement requires evidence of culpable conduct, directed to encouraging another’s infringement, not merely that the inducer had knowledge of the direct infringer’s activities.” DSU Medical Corp. v. JMS Co., Ltd., 471 F.3d 1293, 1306 (Fed.Cir.2006) (en banc in relevant part). a. Amazon With respect to whether Amazon had the requisite knowledge of the patents-in-suit, the amended complaint provides as follows: Amazon had knowledge of the '470 patent and Walker Digital’s infringement contentions since at least April 11, 20[11] or before. (D.I. 51 at ¶ 35) (emphasis added) The amended complaint further reads: It is believed Amazon was on notice of the '470 patent and Walker Digital’s claims prior to April 11, 2011 through Amazon’s interactions with representatives of Walker Digital. (Id. at ¶ 36) Plaintiff asserts in this regard that representatives for Walker Digital met with the Chief IP Counsel of Amazon prior to this suit in March 2011, to discuss Amazon’s infringement of the patented subject matter. (D.I. 61 at 16) In addition, the amended complaint includes several paragraphs alleging Amazon had the requisite intent to induce infringement of the '470 patent: Since Amazon has been on notice of the '470 patent, Amazon has and continues to indirectly infringe one or more claims of the '470 patent in this judicial district and/or elsewhere in the United States, including at least claims 21 and 22, by inducing Amazon’s users and/or customers (direct infringers) to use apparatuses that provide cross-benefits during a transaction including, but not limited to, that provide Amazon’s users and/or customers the ability to receive a benefit in connection with a purchase via a cross-promotion as shown in the screen shots included as Exhibit 3. (D.I. 51 at ¶ 37) Amazon instructs its users and/or customers on using the infringing apparatuses in a manner that is accused herein to infringe. (Id. at ¶ 43) To date, Amazon has not produced or relied upon an opinion of counsel related to the '470 patent. (Id. at ¶ 44) To date Amazon has not made any changes to the relevant operation of the infringing apparatuses and has not provided Amazon’s users and/or customers instruction on how to avoid infringement since Amazon had notice of the patent. (Id. at ¶ 46) To date, Amazon has produced no evidence as to any investigation, design around or remedial actions with respect to the '470 patent. (Id. at ¶ 47) b. Zappos With respect to whether Zappos had the requisite knowledge of the '056 patent, the amended complaint provides as follows: Zappos had knowledge of the '056 patent and Walker Digital’s infringement contentions since at least April 11, 2011 . or before. (D.I. 51 at ¶ 114) (emphasis added) It is believed that Zappos was on notice of the '056 patent and Walker Digital’s claims prior to April 11, 2011 through Zappos’ interactions with representatives of Walker Digital. (Id. at ¶ 115) Plaintiff asserts that Zappos had the requisite intent to induce infringement of the '056 patent: Since Zappos has been on notice of the '056 patent, Zappos has and continues to indirectly infringe one or more claims of the '056 patent in this judicial district and/or elsewhere in the United States, including at least claims 47 and 48, by inducing Zappos’ users and/or customers (direct infringers) to use apparatuses that provide cross-benefits during a transaction including, but not limited to, that provide Zappos’ users and/or customers the ability to receive a benefit in connection with a purchase via a cross-promotion as shown in screen shots included as Exhibit 4. (Id. at ¶ 116) Since Zappos was on notice of the'056 patent, Zappos knowingly induced infringement of one or more claims of the '056 patent, including at least claims 47 and 48, and possessed specific intent to encourage others’ infringement as alleged herein. {Id. at ¶ 117) Zappos instructs its customers on using the infringing apparatuses in a manner that is accused herein to infringe. {Id. at ¶ 122) To date, Zappos has not produced or relied upon an opinion of counsel related to the '056 patent. {Id. at ¶ 123) To date, Zappos has produced no evidence as to any investigation, design around or remedial actions with respect to the '056 patent. {Id. at ¶ 126) c. Analysis In order to appropriately plead indirect infringement, Walker Digital must allege that Amazon and Zappos had knowledge not only of the patent, but of the allegedly infringing nature of the asserted conduct under § 271(b). Global-Tech, 131 S.Ct. at 2068. In the case at bar, Walker Digital has asserted that both Amazon and Zappos knew of the patents-in-suit at least as early as the filing of the initial complaint (April 11, 2011) and, armed with this knowledge, have continued their allegedly infringing conduct. The court concludes that Walker Digital’s allegations pass muster under Rule 8 and, therefore, satisfy the requirements of Global-Tech. In this regard, it is important to keep in mind that the Supreme Court was reviewing Global-Tech post-trial and did not speak to the pleading requirements for indirect infringement under Rule 8. Moreover, there is no legal impediment to having an indirect infringement cause of action limited to post-litigation conduct. Indeed, it is instructive to bear in mind the fundamental purpose of asserting indirect infringement, that is, to ensure that the patentee can recover full compensation for any damages suffered as a result of infringement. The fact that Walker Digital would be prohibited from collecting damages related to indirect infringement for any pre-knowledge (e.g., pre-filing) conduct is the only substantive consequence of allowing allegations such as those at bar to go forward. In sum, if a complaint sufficiently identifies, for purposes of Rule 8, the patent at issue and the allegedly infringing conduct, a defendant’s receipt of the complaint and decision to continue its conduct despite the knowledge gleaned from the complaint satisfies the requirements of Global-Tech. Amazon and Zappos’ motions to dismiss, therefore, are denied as they relate to allegations of indirect infringement. 2. Contributory standard Under 35 U.S.C. § 271(c), a patentee must demonstrate that an alleged contributory infringer has sold, offered to sell or imported into the United States a component of an infringing product “knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use.” Therefore, § 271(c) “require[s] a showing that the alleged contributory infringer knew that the combination for which [its] component was especially designed was both patented and infringing.” Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964) (“Aro ”). a. Amazon Moving defendants argue that plaintiffs amended complaint fails to state a plausible claim for contributory infringement because plaintiff fails to adequately plead the requisite knowledge and intent to infringe. (D.I. 58 at 18-19) The amended complaint reads that Amazon: Has and continues to indirectly infringe at least claims 21 and 22 of the '470 patent by contributing to the indirect infringement of others, including Amazon’s users and/or customers in violation of 35 U.S.C. § 271(c). (D.I. 51 at ¶ 48) The infringing apparatuses comprise software or hardware and software that provide cross-benefits during a transaction including, but not limited to, that provide Amazon’s users and/or customers the ability to receive a benefit in connection with a purchase via a cross-promotion as shown in the screen shots included as Exhibit 3. Amazon has been aware, since at least April 11, 2011 or before, that its products accused of infringement including, but not limited to, the infringing apparatuses, are not staple articles or commodities of commerce suitable for substantial noninfringing use and are especially made and/or adapted for use in infringing the '470 patent. (Id. at ¶ 49) Plaintiffs amended complaint satisfies the elements of contributory infringement by alleging that Amazon: (1) had knowledge of the patent; (2) sold products especially made for infringing use; (3) had knowledge of the infringing use; (4) sold products with no substantial noninfringing use; and (5) directly infringed. Plaintiffs claims are facially plausible and provide Amazon with adequate notice of its indirect infringement claims. b. Zappos The amended complaint asserts that Zappos: Has and continues to indirectly infringe at least claims 47 and 48 of the '056 patent by contributing to the indirect infringement of others, including Zap pos’ users and/or customers in violation of 35 U.S.C. § 271(c). (D.I. 51 at ¶ 127) The infringing apparatuses comprise software or hardware and software that provide cross-benefits during a transaction including, but not limited to, that provide Zappos’ users and/or customers the ability to receive a benefit in connection with a purchase via a cross-promotion as shown in the screen shots included as Exhibit 4. Zappos has been aware, since at least April 11, 2011 or before, that its products accused of infringement including, but not limited to, the infringing apparatuses, are not staple articles or commodities of commerce suitable for substantial noninfringing use and are especially made and/or adapted for use in infringing the '056 patent. (Id. at ¶ 128) As stated supra, plaintiffs amended complaint satisfies the elements of contributory infringement by alleging that Zappos: (1) had knowledge of the patent; (2) sold products especially made for infringing use; (3) had knowledge of the infringing use; (4) sold products with no substantial noninfringing use; and (5) directly infringed. The court agrees that plaintiffs claims are facially plausible and provide Zappos with adequate notice of its indirect infringement claims. C. Willful Infringement 1. Standard The Federal Circuit set forth a two-pronged standard for establishing willfulness in Seagate, the first prong of which states: [To] establish willful infringement, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. The state of mind of the accused infringer is not relevant to this objective inquiry.
11777571-7995	SIPPEL, District Judge. Renell Edward Etheridge appeals from a judgment of the district court following his conditional plea of guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2). For reversal, Etheridge argues that evidence seized during a search of his home should have been suppressed because there was no probable cause to issue the warrant. We affirm. Jurisdiction Jurisdiction in the district court was proper based upon 18 U.S.C. § § 922(g)(1) and 924(a)(2). Jurisdiction in this court is proper based upon 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Etheridge timely filed his notice of appeal pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure. Background On September 16, 1997, Renell Etheridge was arrested during a search of his residence which he shares with his mother, Lolitta Etheridge. The search was conducted pursuant to a warrant issued by a magistrate judge in connection with a narcotics investigation of appellant’s brother, Dwayne Ether-idge. Etheridge filed a pre-trial motion to suppress the fruits of the search, alleging a lack of probable cause that the sought-for items would be found in his home. The magistrate judge held an evidentiary hearing and recommended that his motion to suppress be denied. After conducting a de novo review, the district court adopted the magistrate’s recommendation. Etheridge subsequently entered a conditional plea of guilty on January 14, 1998 to the charged offense. Pursuant to the plea agreement, Etheridge preserved his right to appeal the district court’s ruling on the motion to suppress and the sentence imposed. Etheridge was sentenced to imprisonment for 33 months and two years of supervised release. Discussion On appeal, Etheridge contends that the district court erred in denying his motion to suppress evidence for lack of probable cause. “The principles governing our review of this issue are well established.” United States v. Curry, 911 F.2d 72, 74-75 (8th Cir.1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). We review the issuance of a search warrant to determine whether, under the totality of the circumstances, the magistrate judge had a “substantial basis” for concluding there was probable cause to issue the warrant. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). When the magistrate relied solely upon the supporting affidavit to issue the warrant, “only that information which is found within the four corners of the affidavit may be considered in determining the existence of probable cause.” United States v. Gladney, 48 F.3d 309, 312 (8th Cir.1995), quoting United States v. Leichtling, 684 F.2d 553, 555 (8th Cir.1982), cert. denied, 459 U.S. 1201, 103 S.Ct. 1184, 75 L.Ed.2d 431 (1983). We therefore turn to the affidavit to determine whether it provided a substantial basis for the magistrate’s finding of probable cause. The facts and conclusions set forth in the affidavit in support of the application for the warrant may be summarized as follows: 1) On September 8, 1997, Hennepin County Sheriffs narcotics deputies and United States postal inspectors conducted controlled deliveries of several packages of cocaine that had been intercepted from the mail. Several people were arrested as a result of these deliveries. 2) Following these arrests, the officers discovered that Dwayne Etheridge was the intended recipient of the cocaine. 3) Based on that information, Hennepin County deputies obtained a warrant to search the residence of Dwayne Etheridge. 4) During the search, officers found income documents, W-2s and weekly wage statements for Dwayne Etheridge from DKH Excavating. Several of these employment documents appeared to have been created on a home computer. 5) The officers contacted DKH Excavating and verified that these employment records had been falsified. 6) The officers also uncovered documents indicating that Dwayne Etheridge was employed by Travel to Go. 7) Travel to Go was an assumed name registered to Lolitta Etheridge at her home address. Travel to Go was unlisted in the telephone directory and had a business address of a mailbox drop box located near the home of Dwayne Etheridge. 8) Dwayne Etheridge’s employment records from Travel to Go had the same falsified appearance as the documents from DKH Excavating. 9) Lolitta and Dwayne Etheridge jointly owned Dwayne’s home. 10) Dwayne Etheridge’s vehicle was actually registered to Lolitta Etheridge. Based on this evidence, the officer conducting the investigation believed that Dwayne Etheridge was falsifying employment records to conceal the true source of his drug income. Accordingly, he applied for a warrant to search the residence of Lolitta Etheridge to locate the source of the false documents, drugs and proceeds. The officer testified that, based upon his prior training and experience as a financial analyst, drug dealers often use the homes of relatives to conceal income records and drugs. He also reasoned that the falsified financial documents may have been created at Travel to Go since travel agencies typically use computers in conjunction with their business. The magistrate judge issued the warrant based upon the affidavit of the officer. On September 16,1997, the officers searched the home of Lolitta and Renell Etheridge. Re-nell Etheridge was discovered during the search in possession of a firearm and subsequently arrested. An affidavit supporting a warrant must show that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317. The requisite nexus between a particular location and contraband is determined by the nature of the crime and the reasonable, logical likelihood of finding useful evidence. United States v. Christenson, 549 F.2d 53, 57 (8th Cir.1977). Appellant contends that there was insufficient evidence in the supporting affidavit to establish that illegal activities or evidence of a.crime would be found at his residence. We disagree. The affidavit recounts the results of a narcotics investigation into the activities of Dwayne Etheridge. The officer who subscribed and attested to the affidavit, a trained financial analyst, believed that Dwayne Etheridge had created a false front of legitimacy to conceal his drug income. Prior to obtaining the warrant to search the home of Lolitta and Renell Etheridge, the officers verified that Dwayne Etheridge’s employment and income records from DKH Excavating had been falsified. These documents looked similar in appearance to his records from Travel to Go, an assumed name registered to Lolitta Etheridge at her home address. Travel to Go had no telephone number listed in the telephone directory and no physical location other than Lolitta Ether-idge’s home address. The falsified income documents appeared to have been generated on a home computer, a piece of equipment often used by travel agencies in the normal course of business. The circumstances set forth in the affidavit established a link between Dwayne Ether-idge, his falsified employment records and Travel to Go. In light of the information that Dwayne Etheridge’s employment documents from Travel to Go appeared to have been falsified using a home computer and that Travel to Go had no listed telephone number or known physical location other than Lolitta Etheridge’s home address, there were sufficient grounds for believing that evidence of Dwayne Etheridge’s false front of legitimacy would be found at Lolitta and Renell Etheridge’s residence. See Curry, 911 F.2d at 75. In sum, examining “all the circumstances set forth in the affidavit,” Gates, 462 U.S. at 238, 103 S.Ct. 2317, we cannot conclude that the affidavit did not provide the magistrate with a substantial basis for determining the existence of probable cause. Accordingly, the district court did not clearly err in denying Etheridge’s motion to suppress.
4099534-15737	MEMORANDUM OPINION MARVIN ISGUR, Bankruptcy Judge. The Trustee asks this Court to allow assumption of a contingency fee agreement between the Debtor and Shane Kadlec [doc. no. 18]. As part of that assumption, the Trustee asks that the Court approve full payment of Kadlec’s attorney’s fees. Based on the findings of fact and conclusions of law stated below, the Court does not approve assumption of the contingency fee agreement by the estate. Kadlec and the Trustee are directed to provide further information consistent with this memorandum opinion so that the Court can determine the proper treatment of Kadlec’s quantum meruit claim. A separate order will issue. Background The Debtor, Kenneth Plaza, was involved in an automobile accident on August 13, 2002. Plaza was struck by an SUV operated by Levenia Burns. Plaza hired Shane Kadlec, of Ivey & Kadlec to represent him in dealing with U.S. Auto Insurance Services, Inc., the liability carrier for Burns. Plaza’s agreement with Ivey & Kadlec was a contingency fee agreement, granting the firm one-third of any gross recovery if the claim was settled prior to filing suit, and if suit was filed, granting the firm forty percent of any gross recovery. On February 29, 2004, Plaza filed suit against Burns in county civil court. On February 19, 2005, Plaza filed for chapter 7 bankruptcy. Plaza was granted a discharge on August 2, 2005. In 2006, with discovery complete in Plaza’s county civil suit, counsel for Burns offered to settle the matter for $20,048. Plaza agreed to settle. However, prior to finalizing the settlement, Plaza discovered that certain medical bills resulting from injuries sustained in the accident had not yet been resolved. Kadlec contacted the chapter 7 trustee, as well as Plaza’s earlier bankruptcy attorney, and the parties in interest agreed to reopen the chapter 7 case. On October 19, 2006, the Trustee filed an application to compromise the automo bile claim, as well as a request to pay Kadlec the contingency fee in accordance with the employment agreement entered into in 2002. At a hearing on the motion to compromise and pay attorney’s fees, the Court raised concerns over a provision of the contingency agreement that was arguably unconscionable. Kadlec was asked to brief the issue of unconscionability, as well as whether a trustee may assume a contract with an unconscionable clause. The Consent Clause The contingency agreement between Plaza and Kadlec includes the following clause (“Paragraph 11”): The client will not make settlement of the mentioned claim, or accept any sum as reimbursement for any of the client’s injuries or expenses, without the attorney’s consent. (Contingency fee agreement, ¶ 11 at 3). At the hearing on the motion to pay fees the Court expressed concern that this clause takes the final decision regarding settlement away from the client, in favor of the attorney. The clause requires the attorney’s consent to any settlement or acceptance of a reimbursement amount. In this way, the clause amounts to a veto power for the attorney over a settlement. This allocation of power appears to be directly at odds with the well accepted principle that it is the client who has exclusive control over whether to settle, compromise or adjust the cause of action. See e.g., C.I.R. v. Banks, 543 U.S. 426, 436, 125 S.Ct. 826, 160 L.Ed.2d 859 (2005)(“The client may rely on the attorney’s expertise and special skills to achieve a result the client could not achieve alone. That, however, is true of most principal-agent relationships, and it does not alter the fact that the client retains ultimate dominion and control over the underlying claim. The control is evident when it is noted that, although the attorney can make tactical decisions without consulting the client, the plaintiff still must determine whether to settle or proceed to judgment and make, as well, other critical decisions.”) In his brief supporting the payment of fees, Kadlec first argues that Paragraph 11 is not unconscionable because an attorney may acquire a lien on a client’s cause of action to secure fees or expenses as well as contract for a contingency agreement. The Court does not understand how this argument addresses Paragraph ll’s apparently impermissible allocation of decision making between attorney and client. Kadlec goes on to argue the practicality of Paragraph 11: The language in paragraph 11 requires that the client agree to inform the lawyer of his intention of settling the claim; thereby, giving the attorney the opportunity to properly negotiate and conclude any potential settlement of the client’s claims.... This aspect of a lawyer’s representation is essential for the attorney to properly effectuate any settlement, so as to be sure that the settlement agreement and release are appropriately worded, for the protection of both the client and his counsel. (Brief, ¶ 16). The Court understands the contribution an attorney makes in negotiating a settlement. However, Kadlec understates the effect of Paragraph 11. The clause does more than require that the client inform the lawyer of his intention to settle. The plain language of the clause requires that the client not settle the claim without the consent of the attorney. Next, Kadlec argues that consent clauses in contingency fee contracts have long been recognized as valid in Texas. Kadlec directs this Court to Hill v. Cunningham, 25 Tex. 25 (1860). That court stated: ... [W]here the attorney contracts with the client for a contingent fee, to depend upon the result of the suit, if the client compromises the suit without consulting the attorney, and without the attorney’s consent, then the attorney will be entitled to recover the whole amount of the fee in like manner as if the contingency had transpired, upon which the payment of the fee was made to depend. In such cases it would become the duty of the client to consult the attorney, and to obtain his consent to the compromise of the suit upon such definite agreement in relation to the attorney’s fee as the parties might think proper to make.... Cases might undoubtedly present themselves in which the attorney would not be permitted to control the suit, so as to prevent a compromise, or in other words, where the attorney would not be permitted to continue the litigation to the injury of the client. Hill, 25 Tex. at *5. The Court does not find Hill applicable to the question currently under consideration. Hill deals with enforcement of a contingency fee agreement in a case that was settled by the parties themselves, without attorney consent. Whether an attorney can enforce a contingency agreement against a client who has settled without the attorney’s knowledge is not the question before this Court. The present issue is whether an attorney can contract for a veto power regarding a client’s choice to settle a lawsuit. To whatever extent Hill can be read to grant an attorney the power to withhold the right to comprise from a client, it no longer accurately reflects the law. See e.g., C.I.R. v. Banks, 543 U.S. at 436, 125 S.Ct. 826. Additionally, since Hill was decided in 1860, the Texas State Bar has adopted various rules of professional ethics which govern the relationship between attorney and client. Today, the conduct of attorney behavior in Texas is governed by the Texas Disciplinary Rules of Professional Conduct. Disciplinary Rule 1.02 provides that: (a) Subject to paragraphs (b), (c), (d), and (e), (f), and (g), a lawyer shall abide by a client’s decisions: (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; (3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify. Texas DisciplinaRY Rules of PROf’l Conduct R. 1.02 (1990). Hence, according to the Texas Disciplinary Rules, it is the lawyer who must abide by the client’s decision regarding settlement, not vice versa. Similarly, the ABA Committee on Professional Ethics issued a formal opinion quoting the following with approval: A clause in a retainer agreement prohibiting the client from settling without the attorney’s consent is void as against public policy; as is an agreement with the client that no part of the retainer shall be refunded in the event of a reconciliation between the parties. ABA Comm. ON Ethics and PROf’l Responsibility, FoRmal Op. 326 (1970)(quoting Henry S. Drinker, Legal Ethics, 101 (Columbia Univ. Press 1953)). The Fifth Circuit has also noted that the consensus view is that clauses such as Paragraph 11 are against public policy: “Clauses in a contract between attorney and client which prohibit a settlement by the client without his attorney’s consent are generally held to be unenforceable as against public policy.” Lewis v. S.S. Baune, 534 F.2d 1115, 1122 (5th Cir.1976) (citations omitted); Singleton v. Foreman, 435 F.2d 962, 970 (5th Cir.1970)(“More-over, it is clear that an attorney never has the right to prohibit his client from settling an action in good faith.”). Essentially, giving an attorney decision making power over whether to settle a case or proceed to trial, could force a litigant to hazard the outcome of litigation in order to secure a higher contingency fee for the attorney. Sentco, Inc. v. McCulloh, 84 So.2d 498, 499 (Fla.1956). “A client by virtue of a contract with his attorney is not made an indentured servant, a puppet on counsel’s string, nor a chair in the courtroom. Counsel should advise, analyze, argue, and recommend, but his role is not that of an imperator whose edicts must prevail over the client’s desire. He has no authoritarian settlement thwarting rights by virtue of his employment.” Singleton, 435 F.2d at 970. Based on the reasoning above, the Court finds that Paragraph 11 is unconscionable. The Court now examines whether the trustee can assume the contingency fee agreement with or without the objectionable clause. Assumption of the Contract Kadlec suggests that if Paragraph 11 is found to be unconscionable, the Court should strike the objectionable Paragraph 11, and then proceed to allow the Trustee to assume the amended contract. Kadlec relies on Hoover Slovacek LLP v. Walton, 206 S.W.3d 557 (Tex.2006) for the principle that if a contract or term thereof is unconscionable at the time the contract is made, a court may enforce the remainder of the contract, or may limit the application of the objectionable clause. Kadlec also cites Williams v. Williams, 569 S.W.2d 867, 871 (Tex.1978). Both Hoover and Williams support the proposition that an unconscionable provision of a contract (contingency fee and premarital agreement, respectively) may be severed, and the remaining contract may be enforced. However, the question in this case is not whether Paragraph 11 may be severed and the contingency fee agreement enforced. The question is whether Paragraph 11 may be severed and the remaining agreement may be assumed. The Court finds that severance and assumption is not allowed. The general rule in bankruptcy is that a contract must be assumed or rejected in its entirety. In re National Gypsum Co., 208 F.3d 498, 506 (5th Cir.2000); Stewart Title Guaranty Co. v. Old Republic Nat’l Title Ins. Co., 83 F.3d 735, 741 (5th Cir.1996). Kadlec has produced no authority that would allow this Court to sever the objectionable paragraph and then allow the remaining, amended contract to be assumed. Consequently, the Court cannot and will not strike Paragraph 11 in order to produce a contract acceptable for assumption. Assumption or rejection of a contract in bankruptcy is “subject to the court’s approval....” 11 U.S.C. § 365(a). The result of the reasoning above is that the Trustee is asking this Court to approve the assumption of a contract that is unconscionable because it violates basic tenets of the attorney-client relationship. The Court will not approve such a contract. Arguments Based on Equity and the Common Fund Doctrine Kadlec argues that if the Court finds Paragraph 11 objectionable and is unable to sever it, attorney’s fees should still be paid according to the contingency fee agreement based on equity and the common fund doctrine. Kadlec primarily relies on In re Willis, 143 B.R. 428 (Bankr.E.D.Tex.1992), for these arguments. This Court has specifically rejected the In re Willis case as Kadlec is attempting to apply it. In In re Patton, 358 B.R. 911 (Bankr.S.D.Tex.2007), the Court stated: In this case, awarding priority based on the common fund doctrine is not consistent with the priority scheme set out in the Bankruptcy Code. Any such inconsistency must be settled in favor of the Code. “Section 507 is intended to be the exclusive list of priorities in bankruptcy. Priorities are to be set by Congress. Courts are not free to fashion their own rules of superpriorities or subpriorities within any given priority class.” 3 COLLIER ON BANKRUPTCY ¶ 507.02, p. 507-11 (15th ed.1992). As recently noted by the Supreme Court, “preferential treatment of a class of creditors is in order only when clearly authorized by Congress.” Howard Del. Svc. v. Zurich American Ins., - U.S. -, 126 S.Ct. 2105, 2109, 165 L.Ed.2d 110 (2006). This Court, unlike Willis, does not see how the common fund doctrine can be used to circumvent the distribution scheme outlined in the Code. The doctrine is useful in establishing how and whether an attorney is paid in a common fund scenario. Once that is determined, an attorney’s claim to funds must be paid only in accordance with the bankruptcy priorities established by Congress. Much like the court in In re Coron, 161 B.R. 449, (Bankr.N.D.Ill.1993), “to the extent Willis can be read to stand for doctrine beyond its factual setting, this Court finds it inconsistent with the statutory distribution scheme under the Bankruptcy Code....” In re Coron, 161 B.R. at 452. Finally, the Trustee argues that equity requires that Johnson receive a 100% payout on his contingency fee claim. The Trustee again cites Willis, which states that “had it not been for the efforts of counsel, there would be no controversy for this Court to decide.” Willis, 143 B.R. at 433. This Court disagrees with the conclusion that equity should result in full payment of Johnson’s claim. It is the nature of bankruptcy that creditors are often not paid in full. By all accounts Johnson performed his work skillfully and efficiently. Yet, the Court is confident that many creditors who diligently supply services or funds do not receive the full payment they deserve. The most analogous example for this case is an attorney who works on an hourly fee basis. When such an attorney labors pre-petition on non-bankruptcy matters, the treatment of that attorney’s claim for fees is clear: the attorney has an unsecured claim for the fees earned, and will share pro-rata in any distribution made to unsecured creditors in the same class. Compensation of professionals is generally governed by § 330 of the Bankruptcy Code. An attorney may be awarded “a reasonable compensation for actual, necessary services rendered by the ... attorney.” 11 U.S.C. § 330(a)(1)(A). Section 330 only applies to professionals retained under § 327. Section 327 authorizes the retention of an attorney “to represent or assist the trustee in carrying out the trustee’s duties under this title.” 11 U.S.C. § 327(a). Consequently, only an attorney retained under § 327 may receive compensation pursuant to § 330. In re Foster, 247 B.R. 731, 732 (Bankr.S.D.Ohio 2000). Section 328 authorizes the trustee to retain counsel on a retainer, hourly or contingent fee basis. 11 U.S.C. § 328(a).
7413539-5752	PER CURIAM: INTRODUCTION Frederick Cobia pled guilty to possessing firearms as a convicted felon in violation of 18 U.S.C. § 922(g). The district court accepted Cobia’s plea and sentenced him to 180 months’ imprisonment pursuant to 18 U.S.C. § 924(e). Cobia appeals, challenging the sentence imposed by the district court. FACTS AND PROCEDURAL HISTORY A federal grand jury returned an indictment charging Cobia with knowingly possessing firearms in and affecting commerce as a previously convicted felon, in violation of 18 U.S.C. § 922(g). Cobia entered into a plea agreement with the Government. As part of the plea agreement, the Government stated that it would not file any motion to enhance the sentence for the offense pursuant to 18 U.S.C. § 924(e) even though Cobia had at least three prior convictions for violent felonies or serious drug offenses as defined in 18 U.S.C. § 924(e). However, in the plea agreement, the Government maintained and Cobia understood that “sentencing under § 924(e) may be mandatory irrespective of whether the Government files any motion to enhance the defendant’s sentence.” (R. 1-17 at 2.) The plea agreement also provided that Cobia could not withdraw his plea in the event the court enhanced his sentence pursuant to § 924(e). (Id.) At the sentencing hearing, the Government took the position that § 924(e) provided for mandatory enhancement and that the Gov ernment need not file any motion to enhance Cobia’s sentence for § 924(e) to apply. Co-bia argued that § 924(e) did not provide for mandatory enhancement, that the Government must affirmatively seek enhancement and provide the defendant with notice for § 924(e) to apply, and that because the Government had not filed a motion to enhance pursuant to § 924(e), Cobia’s sentence should not be enhanced. The district court held that Cobia had sufficient notice for his sentence to be enhanced pursuant to § 924(e), that § 924(e) applied automatically, and that the Government need not affirmatively seek enhancement for § 924(e) to apply. The court applied the § 924(e) enhancement and sentenced Cobia accordingly. ISSUES ON APPEAL The sole issue on appeal is whether the district court erred in sentencing Cobia as an armed career criminal pursuant to 18 U.S.C. § 924(e) when the Government did not affirmatively seek a § 924(e) enhancement. STANDARD OF REVIEW This court applies de novo review to questions of law such as statutory interpretation. United States v. Lawson, 809 F.2d 1514, 1517 (11th Cir.1987). DISCUSSION Section 924(e) provides for the enhancement of sentences when individuals who have three or more previous convictions for violent felonies or serious drug offenses violate § 922(g). The Government contends that § 924(e) is a mandatory enhancement statute. The Government bases this contention on the plain wording of § 924(e), which states that “[i]n the case of a person who violates section 922(g) of this title and has three previous convictions. ... for a violent felony or a serious drug offense ... such person shall be fined not more than $25,000 and imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1) (1988). Therefore, the Government argues, the district court must apply the enhancement statute regardless of whether the prosecution affirmatively seeks the enhancement. On the other hand, Cobia contends that the Government must affirmatively seek enhancement for a court to apply the provisions of § 924(e). Cobia argues that under the United States Sentencing Guidelines (“USSG”) § 4B1.4, which addresses the offense level and criminal history category for defendants whose sentences are enhanced pursuant to 18 U.S.C. § 924(e), the commentary indicates that “the procedural steps relative to the imposition of an enhanced sentence under 18 U.S.C. § 924(e) are not set forth by statute and may vary to some extent from jurisdiction to jurisdiction.” USSG § 4B1.4, comment, (n. 1) (Nov. 1993). Cobia argues that the practice in the Southern District of Florida is for the prosecution to provide notice of its intent to seek enhancement either in the indictment or by a separate notice. Because it has been the practice in the Southern District of Florida for the prosecution to affirmatively seek § 924(e) enhancement, Cobia argues that 'the application of § 924(e) is not mandatory. We have held that § 924(e) is merely a sentence enhancement provision. It does not create a separate offense. United States v. Ruo, 943 F.2d 1274, 1275 (11th Cir.1991). However, we have not addressed whether § 924(e) sentence enhancement is mandatory. In addressing this question, we find that the plain language of the statute supports the Governments position that § 924(e) is mandatory. The statute states that if a person “has three previous convictions ... such person shall be ... imprisoned for not less than fifteen years.” 18 U.S.C. § 924(e)(1) (1988). The statute does not require the Government to affirmatively seek an enhancement. Because the statute clearly indicates that the intent of Congress was to require mandatory enhancement, we hold that sentence enhancement pursuant to § 924(e) should automatically be applied by the courts regardless of whether the Government affirmatively seeks such enhancement. See United States v. Johnson, 973 F.2d 857, 860 (10th Cir.1992) (“Once the sentencing court was aware that the requirements of § 924(e)(1) were satisfied, the enhancement was mandatory. The statute does not require government action to trigger its application nor does it vest discretion in the sentencing court not to apply its mandate.”); United States v. Cravei- ro, 907 F.2d 260, 263 (1st Cir.) (“[S]ection 924(e) is mandatory...cert. denied, 498 U.S. 1015, 111 S.Ct. 588, 112 L.Ed.2d 593 (1990).
3644870-16083	ORDER GRANTING MOTION TO DISMISS KANE, District Judge. The issue I must decide here is both novel and narrow: in a fraudulent conveyance action, in which the transferee of money is properly before the court on the basis of diversity jurisdiction, does the court have jurisdiction over a money claim against the transferor if that transferor is from the same state as the plaintiff? Plaintiff J.M. Resources Incorporated (J.M.), a Colorado corporation, filed this action on August 9, 1983, against defendant Petro-Pak Resources, Ltd., a British Columbia Corporation (Petro-Pak), alleging fraudulent conveyance, breach of fiduciary duty, liability for the debts of a subsidiary and unjust enrichment. Jurisdiction was based on alienage. 28 U.S.C. § 1332(a)(2). Petro-Pak is engaged in the oil and gas business. It conducts its American operations through a wholly-owned subsidiary, Petro-Pak Colorado, a Colorado corporation. Petro-Pak Colorado entered into certain operating agreements pertaining to oil and gas properties located in Kansas and Montana with J.M. in July 1981 and July 1982. Petro-Pak Colorado became insolvent and was unable to meet its financial commitments under the operating agreements. J.M. alleges that Petro-Pak has been transferring the assets of Petro-Pak Colorado to Petro-Pak itself. Believing that Colorado law requires a liquidation of the claim against the transferor in order to establish the liability of the transferee of a fraudulent conveyance, J.M. joined a claim for money against Petro-Pak Colorado to its fraudulent conveyance claim against Petro-Pak. Pursuant to F.R.Civ.P. 12, the defendant Petro-Pak has moved to dismiss this action for lack of subject-matter jurisdiction. It argues that because Petro-Pak Colorado and J.M. are both Colorado corporations, complete diversity of citizenship, Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 267, 2 L.Ed. 435 (1806), is lacking. The plaintiff, however, believes that the doctrine of ancillary jurisdiction enables this court to adjudicate J.M.’s claim against Petro-Pak Colorado. I disagree. Rather than using the doctrine of ancillary jurisdiction, the proper analysis should therefore be in terms of pendent jurisdiction, more particularly pendent party jurisdiction. A pendent claim is asserted by a plaintiff who seeks to have a federal court hear a state claim (the pendent claim) which shares a “common nucleus of operative fact” with the federal claim. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). The federal claim is not one based on diversity because if it were, the diversity of the only two litigants involved would itself support federal jurisdiction to hear any state claim. In the pendent party situation, there is not only a state claim which is appended to the action that provides the anchoring source of federal jurisdiction, but there is also an ancillary party. Under this theory, a diversity anchor is possible, the pendent party theory being used to overcome the absence of complete diversity that would arise from the addition of a nondiverse party. See Ayala v. United States, 550 F.2d 1196, 1198 (9th Cir.1977). A few courts have relied on the concept of pendent parties to entertain suits in which diversity was not complete. See, e.g., Borror v. Sharon Steel Co., 327 F.2d 165 (3d Cir.1964); Witterskeim v. General Transp. Services, Inc., 378 F.Supp. 762 (D.C.Va.1974). These cases, however, have not been well received. Borror, which involved a survival claim, was restricted to its particular facts in Seyler v. Steuben Motors, Inc., 462 F.2d 181 (3d Cir.1972), and Witterskeim was expressly disapproved by the Fourth Circuit in Parker v. W.M. Moore & Sons, 528 F.2d 764 (4th Cir.1975). See also Grimandi v. Beech Aircraft Corp., 512 F.Supp. 764 (D.C.Kan. 1981); Burnside v. Sanders Assn., Inc., 507 F.Supp. 165 (D.C.Tex.), aff’d, 643 F.2d 389 (5th Cir.1981); Wolgin v. Atlas United Financial Corp., 397 F.Supp. 1003 (D.C. Pa.1975); Sherrell v. Mitchell Aero, Inc., 340 F.Supp. 219 (D.C.Wis.1971). See generally Bratton, Pendent Jurisdiction in Diversity cases — Some Doubts, 11 San Diego L.Rev. 296 (1974). The Supreme Court has not directly addressed the issue of whether a plaintiff in a diversity case can join a nondiverse defendant on a state claim. But two eases, when read together, leave little room for speculation as to what it would conclude if it were to hear the matter. In Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), the court held that in a civil rights action under 42 U.S.C. § 1983 — and its jurisdictional counterpart, 28 U.S.C. § 1343 — against county officers, the county itself, which was not then considered a “person” under the civil rights statutes, could not be joined as a “pendent party” against which to assert a state-created claim arising out of the same facts that gave rise to the claim against the officers. The issue framed by the court was “whether the doctrine of pendent jurisdiction extends to confer jurisdiction over a party as to whom no independent basis of jurisdiction exists.” 427 U.S. at 2-3, 96 S.Ct. at 2414-2415. Without making “any sweeping pronouncement” about the existence of pendent party jurisdiction, the court stated that “[bjefore it can be concluded that [pendent party] jurisdiction exists, a federal court must satisfy itself not only that Article III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.” 427 U.S. at 18, 96 S.Ct. at 2422. Applying this test, the Supreme Court, in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) refused to allow a plaintiff to sue a nondiverse third-party defendant in federal court on an ancillary jurisdiction theory. In Owen an Iowa citizen brought suit against a Nebraska corporation. That corporation filed a third-party complaint against another corporation. The original plaintiff was then allowed to amend her complaint to name the additional company as a defendant. She alleged that it was a Nebraska corporation. At trial it was disclosed that the defendant was an Iowa corporation, and therefore a citizen of that state for purposes of diversity. The second company moved to dismiss the action. The court, applying the Aldinger test, held that Congress had implicitly denied the existence of pendent party jurisdiction in cases where the anchoring federal claim was based solely on diversity of citizenship. It reasoned that the complete diversity requirement had been in existence for 150 years, and that Congress had altered the jurisdictional statutes many times since then without altering the complete diversi ty requirement. 437 U.S. at 373-74, 98 S.Ct. at 2402-03. The court also advanced two reasons for holding that the exercise of ancillary jurisdiction over this defendant was improper while admitting that ancillary jurisdiction over third-party defendants is usually permissible. First, the resolution of a third-party complaint depends at least in part on the decision in the primary lawsuit. “Its relation to the original complaint is thus not mere factual similarity but logical dependence.” 437 U.S. at 376, 98 S.Ct. at 2404. And second, the court observed that the plaintiff had chosen the forum: A plaintiff cannot complain if ancillary jurisdiction does not encompass all of his possible claims in a case such as this one, since it is he who has chosen the federal rather than the state forum and must thus accept its limitations. “The efficiency plaintiff seeks so avidly is available without question in the state courts.” Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 894 (CA 4 [1975]). 437 U.S. at 376, 98 S.Ct. at 2404. The reasoning in Owen applies with even more force here. First, the claim for money against Petro-Pak Colorado is not logically dependent upon the fraudulent conveyance claim against Petro-Pak Resources. On the contrary, both parties concede the reverse, namely that the fraudulent conveyance claim is dependent upon the liquidation of the claim against Petro-Pak Colorado under state law. Cf. Gus T. Handge & Son Painting v. Douglass State Bank, 543 F.Supp. 374, 379 (D.Kan.1982) (ancillary jurisdiction not supportable in part because state law claim was arguably dependent on resolution of another lawsuit pending in state court rather than on primary lawsuit in federal court). Second, in the Owen ease, the nondiverse defendant was originally brought into the case as a third-party defendant. Petro-Pak Colorado, on the other hand, was consciously brought into the case by the plaintiff itself. This violates the requirement of complete diversity even more surely than the situation in Owen did: Thus it is clear that the respondent [plaintiff] could not originally have brought suit in federal court naming Owen and OPPD as codefendants, since citizens of Iowa would have been on both sides of the litigation. Yet the identical lawsuit resulted when she amended her complaint. Complete diversity was destroyed just as surely as if she had sued Owen initially. In either situation, in the plain language of the statute, the ‘matter in controversy’ could not be ‘between ... citizens of different States.’ 437 U.S. at 374, 98 S.Ct. at 2403. The Tenth Circuit applied Aldinger and Owen strictly against the exercise of jurisdiction in National Ins. Underwriters v. Piper Aircraft, 595 F.2d 546 (10th Cir. 1979). In that case, plaintiff National Insurance Underwriters asserted seven alternative claims for relief in its complaint. Jurisdiction was based on diversity of citizenship. Several of the claims of the plaintiff were for less than the jurisdictional minimum of $10,000. The court held that “Must as congressional intent would be circumvented by allowing a plaintiff to bring suit against a non-diverse impleaded defendant, the intent is circumvented by allowing a plaintiff to bring one diversity claim in excess of the minimum amount and join several other defendants by asserting $7,000 claims.” 595 F.2d at 550 (emphasis added). Owen and Aldinger compel me to refuse jurisdiction over this case. J.M., however, argues that F.R.Civ.P. 18(b) provides an exception to the result dictated by those cases. F.R.Civ.P. 18(b) permits a party to join two claims even though if they were asserted independently it would be necessary to prosecute one of them successfully before proceeding to the adjudication of the other. In particular, “a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money.” F.R. Civ.P. 18(b). There is no consensus about the propriety of asserting jurisdiction when a plaintiff comes into federal court alleging diversity of citizenship, but the two claims joined under Rule 18(b) involve one diverse party and one nondiverse party. The issue has only arisen in the context of a debtor from a different state and a transferee from the same state as the plaintiff. One case, decided before the promulgation of the Federal Rules, held that the doctrine of ancillary jurisdiction enabled the court to hear the claim against the transferee. Empire Lighting Fixture Co. v. Practical Lighting Fixture Co., 20 F.2d 295 (2d Cir. 1927). This was a suit for profits gained from infringement of a patent. On the same day that a final decree was entered against the original defendant, the plaintiff filed a supplemental bill against a nondiverse defendant seeking to set aside a fraudulent conveyance to it by the original defendant. Judge Learned Hand, writing for the Second Circuit, thought that the supplemental bill was within the court’s ancillary jurisdiction. His reasoning, however, is inapposite to the present case. Under New York law, a fraudulent conveyance is void. Therefore the creditor, in theory, still owned the property. Thus the suit to set aside the fraudulent conveyance was “in substance an equitable execution.” Id. at 297. In the present case, by contrast, the suit against the nondiverse party, the transferor, is much more important: indeed it is an essential condition to the suit against Petro-Pak Resources, the diverse party. A more recent case endorsed the use of ancillary jurisdiction in the context of a third-party claim. In Super Value Stores, Inc. v. Parker’s Food Town, Inc., 525 F.Supp. 730 (N.D.Ga.1981), the district court exercised jurisdiction over a third-party plaintiff’s claim against third-party defendants, and then held that it had ancillary jurisdiction over the third-party plaintiff’s claims against proposed nondiverse additional third-party defendants who were transferees pursuant to the alleged fraudulent conveyance. This case is distinguishable in that a third-party plaintiff, unlike the plaintiff contemplated in Owen, does not choose his forum. In addition, the opinion is not persuasive. It relies on two cases, Empire Lighting, supra, and Armour & Co. of Delaware v. B.F. Bailey, 132 F.2d 386 (5th Cir.1942). Empire Lighting is of little precedential value. The Armour case did not involve the question of whether jurisdiction existed over the contingent claim. The court merely discussed the effect of Rule 18(b) on the joinder of fraudulent conveyance claims: Prior to the adoption of the rules of civil procedure, a creditor could not maintain an action to set aside a fraudulent conveyance in the federal court until he had reduced his claim to judgment. This was abrogated by Rule 18(b) ... [which] [b]y its express terms ... contemplates a joiner of the action to set aside the conveyance with the action to establish the claim, the former being ancillary to and dependent upon the latter, and the debtor an indispensable party. (Citations omitted). 132 F.2d at 387. This dictum does not even relate to the issue of jurisdiction. If it did, it would be of questionable validity because Rule 82 expressly provides that the Federal Rules cannot extend or limit the subject-matter jurisdiction of the federal courts. These cases do not convince me to exercise ancillary jurisdiction over a nondiverse transferee. They certainly do not require me to exercise ancillary jurisdiction over a nondiverse debtor, the claim against whom is a prerequisite to, rather than dependent upon, the claim against the transferee. I therefore choose to follow the mandate of the Owen and Aldinger cases and to dismiss this case. Order accordingly. . 28 U.S.C. § 1332(a)(1) confers upon federal courts jurisdiction over "civil actions where the matter in controversy exceeds the sum or value of $10,000 ... and is between ... citizens of different States.” 28 U.S.C. § 1332(a)(2) confers jurisdiction when one party is a citizen of or a subject of a foreign country. . Ancillary jurisdiction is an ill-defined concept. 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3523 at 56 (1975). But if any distinction between ancillary and pendent jurisdiction can be made, it is that ancillary claims are usually asserted after the complaint is filed by one other than the plaintiff, while pendent claims are asserted by plaintiffs in their complaint. Corporación Venezolana de Fomento v. Vintero Sales, All F.Supp. 615, 622 n. 13 (S.D.N.Y.1979); 1 Fed.Proc., L.Ed. § 1:19 (1981); Comment, Aldinger v. Howard and Pendent Jurisdiction, 11 Colum.L.Rev. 127 (1977) . J.M. is attempting to join two claims against two different parties. . The first requirement for pendent jurisdiction is proof of a “common nucleus of operative fact.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) . I will assume arguendo, that the facts of this case meet that standard. I express no opinion on this. The underlying debt and the allegedly fraudulent transfer arose out of different transactions or occurrences since they took place at different times. The evidence and issues relating to each could thus be very different, thereby nullifying litigation efficiency.
7403048-6470	MEMORANDUM OPINION AND ORDER HAIGHT, District Judge: Plaintiffs bring this action for a judgment declaring unconstitutional New York General Business Law § 13 (“section 13”). Section 13 makes it a misdemeanor “maliciously” to cause legal process to be served on a Sabbatarian on a Saturday. Plaintiffs contend section 13 violates the Establishment Clause of the First Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment. Defendants move to dismiss for lack of a justiciable case or controversy. I agree that plaintiffs’ claims are not justiciable and therefore dismiss the complaint. Article III of the Constitution requires those who seek to invoke the jurisdiction of the federal courts to allege an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1664, 75 L.Ed.2d 675 (1983). Plaintiffs must show “a personal stake in the outcome of the controversy,” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), some personal “threatened or actual injury” resulting from the challenged action. Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). The “injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’ ” Lyons, supra, 461 U.S. at 102, 103 S.Ct. at 1665. “A person or family may have a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause and the Free Exercise Clause,” Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970); but it must be concrete and personal, and amount to more than the “generalized interest of all citizens in constitutional governance.” Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 217, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974). See also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 482-87, 102 S.Ct. 752, 763-66, 70 L.Ed.2d 700 (1982). Accepting as true the material allegations of the complaint, see Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), I hold that neither plaintiff satisfies the case or controversy requirement. According to the complaint, plaintiff Savastano is a process server “who may be called upon from time to time to serve process on a Saturday on persons who observe that date [sic] as their Sabbath.” (Complaint 116). However, Savastano does not allege that he has been prosecuted or even threatened with prosecution under section 13. He does not even allege that such a prosecution has ever occurred. Nor does Savastano allege that he plans or even wishes “maliciously” to serve process on a Sabbatarian on a Saturday. Savastano alleges no “real and immediate” threat of prosecution; his claim is entirely hypothetical. Therefore, it does not satisfy Article III. See, e.g., Ashcroft v. Mathis, 431 U.S. 171, 172-73, 97 S.Ct. 1739, 1740, 52 L.Ed.2d 219 (1977) (per curiam).; Younger v. Harris, 401 U.S. 37, 41-42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971); Golden v. Zwickler, 394 U.S. 103, 108-10, 89 S.Ct. 956, 959-60, 22 L.Ed.2d 113 (1969). Compare Steffel v. Thompson, 415 U.S. 452, 455-60, 94 S.Ct. 1209, 1213-16, 39 L.Ed.2d 505 (1974) (plaintiff who had twice before been warned to stop handbilling at shopping center, who had been told he was likely to be arrested if he continued handbilling, and whose companion was arrested for handbilling at the location had standing to challenge state statute criminalizing that behavior). Goodman fails to state a justiciable claim for similar reasons. According to the complaint, plaintiff Goodman is a Jew “by upbringing ... whose invocation of General Business Law § 13, if he was served on a Saturday, would be challenged on the grounds of the extent to which he is a Saturday Sabbath observer, such as attending ceremonies, refraining from commerce or talking on the telephone, etc.” (Complaint 117). This assertion is entirely speculative, and therefore fails to state a case or controversy under Article III. In their memorandum of law in opposition to defendants’ motion, plaintiffs assert that Goodman is a Jew who does not observe a Saturday Sabbath at all, and that Goodman and Savastano, a Christian, have standing to challenge section 13 “because it affords identifiable religious groups benefits not afforded plaintiffs.” PI. Mem. in Opp. at 12. Assuming arguendo that this extra-pleading change of theory may properly be considered on this motion, plaintiffs still allege no “distinct and palpable injury.” Warth, supra, 422 U.S. at 501, 95 S.Ct. at 2206. To be sure, a person denied government benefits based on an impermissibly drawn classification may claim standing to challenge that classification, even if the relief ultimately granted might not afford the plaintiff tangible rewards. Heckler v. Mathews, 465 U.S. 728, 738-40, 104 S.Ct. 1387, 1394-95, 79 L.Ed.2d 646 (1984). “[Discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘inately inferior’ and therefore less worthy participants in the political community, Mississippi University for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982), can cause serious noneconomic injuries to those who are personally denied equal treatment solely because of their membership in a disfavored group.” Id. at 739-40, 102 S.Ct. at 3343-44 (emphasis added). As Heckler made clear, however, to claim standing to challenge an allegedly stigmatizing unconstitutional deprivation the plaintiff must have personally suffered unequal treatment. Ibid. Thus in Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), the Supreme Court held nonjusticiable claims by parents of black public school children that the Internal Revenue Service was improperly granting tax exempt status to certain segregated private schools. The Court held the parents lacked standing to assert the “claim of stigmatic injury, or denigration, suffered by all members of a racial group when the Government discriminates on the basis of race.” Id. at 754, 104 S.Ct. at 3326. The Court distinguished Heckler, in which the plaintiff had applied for and been denied benefits allotted based on gender. Id. at 755, 104 S.Ct. at 3326 (citing 465 U.S. at 740-41, 104 S.Ct. at 1395-96).
6050153-22309	EDITH H. JONES, Chief Judge: Petitioner Elroy Chester (“Petitioner”) confessed and pled guilty to capital murder and was sentenced to death by a Texas jury. His conviction and sentence were affirmed on direct appeal. He sought post-conviction relief from the Texas courts, alleging that he is mentally retarded, and his execution will therefore be unconstitutional. The Texas trial court and Court of Criminal Appeals determined that Chester was not mentally retarded. Petitioner then applied for a writ of habeas corpus via 28 U.S.C. § 2254. The federal district court denied relief, and he now appeals. The state’s legal conclusions neither contradicted nor unreasonably applied federal law, nor were its factual conclusions unreasonable in light of the evidence presented in the state proceedings. See 28 U.S.C. § 2254(d)(1) — (2); Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir.2002). We therefore AFFIRM. BACKGROUND In 1997 and 1998, Petitioner embarked on a criminal spree too long and too gruesome to recount here in its full detail. He perpetrated at least five burglaries and five non-lethal assaults; worse, he left in his wake the victims, ranging from ten to eighty-seven years old, of at least five murders and three rapes. Petitioner’s career as a serial murderer and rapist culminated in the events of February 6, 1998, when his final victim, Willie Ryman III, discovered Petitioner raping his nieces, and Petitioner shot and killed Ryman. On that evening, Erin DeLeon was at home alone with her small child. After cutting the telephone wires and tampering with the security light between the garage and house, Petitioner entered the house through the unlocked kitchen door, wearing a ski-mask and gloves. With a gun to the back of Erin’s head and her ponytail in his hand, he led her from room to room to retrieve valuables. He then brought her to the living room and ordered her to turn off the lights and draw the blinds. When Claire DeLeon, Erin’s sister, returned to the home with her boyfriend Tim, Petitioner demanded their money and jewelry, then ordered them into the bathroom. Alone again with Erin, he forced her to undress, then blindfolded her with duct tape. He then ordered Tim to return, forced him to strip as well, and restrained him with duct tape. Finally he ordered Claire to enter and strip and blindfolded her with duct tape. He raped Erin and forced other sex acts, holding a gun against her head and threatening to “blow her head off’ if she resisted. He repeated this threat when he forced Clame to perform sex acts. Willie Ryman III, the DeLeon sisters’ uncle, arrived at this scene with his girlfriend Marcia Sharp, who stayed in the car while Ryman approached the house. Petitioner went to the back door and murdered Ryman with a single shot. He then approached the car, where he began shooting at its locked doors. He fired two more shots into the car before fleeing the scene. Chester was quickly implicated and captured. He confessed to Ryman’s murder and led police to the murder weapon. Although he lied to the police about where it was hidden, and about the fact that it was loaded, apparently trying to mount a violent escape, he did not succeed. He also confessed to a host of other horrific crimes. After pleading guilty to capital murder, he was sentenced to death by a Texas jury. His conviction and sentence were affirmed on direct appeal. Chester sought post-conviction relief at the state and federal levels on the grounds that he could not be executed because he is mentally retarded. Relying on the United States Supreme Court’s opinion in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the execution of the mentally retarded violates the Eighth Amendment), and on the factors set forth in Ex Parte Briseno, 135 S.W.3d 1, 5 (Tex.Crim.App.2004) (implementing Atkins), the use of which our court has repeatedly blessed, the Texas trial court and Texas Court of Criminal Appeals (“TCCA”) determined that Chester was not mentally retarded. Ex parte Chester, 2007 WL 602607 (Tex.Cr.App. 2007) (unpublished) (“Chester I”). The TCCA’s detailed and thorough opinion concluded that Chester met two of the three necessary requirements for a finding of mental retardation — significant limitations in intellectual functioning and deficiencies that appeared early in life— but that he did not show “significant deficits in adaptive behavior.” Id. at 3-4. It cited Briseno for the proposition “that courts should use the definitions of mental retardation as stated by the American Association of Mental Retardation” and for a suggested series of questions which would assist in determining the existence of deficits in adaptive behavior. Id. at 1. It acknowledged that these suggested questions were “intended only to be guidelines for the trial courts” to help them make the mental retardation determination required by Atkins “until the Legislature was to ... establish conclusively both the substantive laws and the procedures that would bring our codes into compliance with the mandate issued by Atkins.” Id. at 3. The legislature had not intervened, however, and so the Briseno factors remained the only legal guidance for lower Texas courts in applying the AAMR definition and determining the presence or absence of “significant deficits in adaptive behavior.” Id. The TCCA concluded that the trial court’s finding that Petitioner failed to demonstrate significant deficits in adaptive behavior was supported by the evidence. The trial court had heard Petitioner’s evidence regarding his 1987 “Vineland test,” on which he achieved a Vineland Adaptive Behavioral Scales score (1CVABS”) which would typically indicate mild mental retardation. It also, however, heard evidence regarding Chester’s classification during his school years as “learning disabled” (rather than retarded), and found more credible the testimony of a diagnostician who testified that Petitioner’s school records were accurate and that a “learning disability” designation does not imply mental retardation. It also noted the planned nature of Petitioner’s crimes, both the capital crime and other crimes, in which Petitioner took a great many steps to avoid detection. It noted that he acted independently rather than as an accomplice. The trial court considered conflicting testimony regarding Petitioner’s ability to converse coherently, and found more credible the testimony of the expert who testified that Petitioner could converse coherently on a wide range of topics. It found that Petitioner could lie and hide facts to protect himself, as evidenced by his scheme to mislead investigators in order to obtain his loaded gun while in custody. The TCCA therefore affirmed the trial court’s factual finding that Petitioner failed to demonstrate significant deficits in adaptive behavior by a preponderance of the evidence. Id. at *9. Petitioner then applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, now alleging (as he must) not only his own mental retardation and the resulting unconstitutionality of his sentence, but that the TCCA’s determination was contrary to and an unreasonable application of the holding of Atkins, and that the TCCA’s decision was based on an unreasonable finding of fact in light of the record before it. The federal district court denied relief, and he appealed. DISCUSSION I. AEDPA Review 28 U.S.C. § 2254(d) bars relitigation of any claim “adjudicated on the mer its” in state court, subject only to exceptions in Section 2254(d)(1) and (d)(2). Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). Section 2254(d)(1) contains two overlapping but distinct exceptions: an “unreasonable application” prong and a “contrary to” prong. See Terry Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). Federal courts may not grant habeas relief pursuant to § 2254(d)(1) “unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In this context, “clearly established federal law ‘refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.’” Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir.2001) (quoting Terry Williams, 529 U.S. at 412, 120 S.Ct. at 1523). Section 2254(d)(2) excepts from the general bar on relief those cases in which the adjudication of the claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). A reviewing federal court presumes that the state court’s factual findings are sound unless the petitioner rebuts the “presumption of correctness by clear and convincing evidence.” Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005); Maldonado v. Thaler, 625 F.3d 229, 236 (5th Cir.2010). This standard is demanding but not insatiable; deference does not by definition preclude relief. Miller-El, 545 U.S. at 240, 125 S.Ct. at 2325. As the Supreme Court has recently reminded, “If [§ 2254(d)’s] standard is difficult to meet, that is because it was meant to be.... It preserves authority to issue the writ where there is no possibility fair-minded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedent. It goes no farther.” Harrington, 131 S.Ct. at 786 (emphasis added) (internal quotation marks and citation omitted). Petitioner claims that he is entitled to relief under both 28 U.S.C. § 2254(d)(1) and 28 U.S.C. § 2254(d)(2); he asserts that the state court’s adjudication resulted in a decision contrary to and involving an unreasonable application of clearly established federal law and was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding. We address these claims in turn. II. Section 2251(d)(1) Claims A state court’s judgment falls within the “unreasonable application” exception of § 2254(d)(1) if the state court correctly identifies the governing legal principle from the Supreme Court’s decisions, but unreasonably applies it to the facts of the particular case, Busby, 359 F.3d at 713, or where it “ ‘extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.’ ” LaCaze v. Warden of La. Corr. Inst. for Women, 645 F.3d 728, 734 (5th Cir.2011) (quoting Terry Williams, 529 U.S. at 407, 413, 120 S.Ct. at 1520, 1523). A federal court cannot reverse the denial of habeas relief simply by concluding that the state court decision applied clearly established federal law erroneously; rather, the court must conclude that such application was also unreasonable. See Horn, 508 F.3d at 313. In fact, “a condition for obtaining habeas corpus from a federal court” is a showing “that the state court’s ruling on the claim being presented ... was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 131 S.Ct. at 786-87 (emphasis added). The first step in determining whether a state court unreasonably applied clearly established federal law is to identify the Supreme Court holding that the state court supposedly unreasonably applied. See Valdez, 274 F.3d at 946 (citation omitted). In the instant case the relevant holding is that of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In Atkins, the Supreme Court held that “death is not a suitable punishment for a mentally retarded criminal.” Id. at 321, 122 S.Ct. at 2252. It based this holding on its conclusion that the Eighth Amendment’s meaning is to be drawn “from the evolving standards of decency that mark the progress of a maturing society.” Id. at 311-12, 122 S.Ct. at 2247. To determine what “evolving standards of decency” would dictate in this context, the Court turned to a consideration of “the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded[.]” Id. at 313, 122 S.Ct. at 2247. After considering these judgments, the Court stated that “a national consensus” had developed against the imposition of the death penalty on the mentally retarded. Id. at 316, 122 S.Ct. at 2249. While it found that there was a national consensus opposing the execution of the mentally retarded, the Court acknowledged that there existed disagreement “in determining which offenders are in fact retarded.” Id. at 317, 122 S.Ct. at 2250. In addition, it observed that “[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Id. Rather than formulating a rule for what subset of those who claimed to be mentally retarded would be ineligible for the death penalty, the Court left to the states “ ‘the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ ” Id. (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17, 106 S.Ct. 2595, 2605, 91 L.Ed.2d 335 (1986)); see, e.g., Hill v. Humphrey, 662 F.3d 1335, 1342, 1360-61 (11th Cir.2011) (en banc) (stating that the United States Supreme Court “did not provide definitive procedural or substantive guides for determining when a person” is mentally retarded and holding that the Georgia Supreme Court did not violate any “clearly established” federal law by upholding Georgia’s reasonable doubt standard for establishing mental retardation). Petitioner argues that Atkins requires state courts to apply the clinical definitions of mental retardation promulgated by the American Association on Mental Retardation (“AAMR”) and American Psychological Association (“APA”) in evaluating murderers like Petitioner for possible mental retardation. Petitioner relies in particular on footnote 22 of Atkins, which noted, in the course of recounting the perceived national consensus, that state definitions of mental retardation “generally conform ... to the clinical definitions set forth” by the AAMR and APA. Atkins, 536 U.S. at 317 n. 22, 122 S.Ct. at 2250 n. 22. This means the Texas court’s analysis unreasonably applied Atkins’ holding, Petitioner concludes, because he believes the state court analysis does not conform with the AAMR and APA definitions, under which he contends he is retarded. To evaluate his claim, we turn to the TCCA’s decision and its grounding in Ex parte Briseno, 135 S.W.3d 1 (2004). Petitioner specifically alleges that the TCCA’s reliance on the Briseno factors for determining his retardation, rather than the AAMR definition, was an unreasonable application of and contrary to Atkins. We disagree. It is impossible to conclude that the state court’s analysis here, and its reliance on the factors outlined in Briseno, resulted in a decision that was based on an unreasonable application of Atkins’s holding. Before Atkins, the Texas legislature determined that to be classified as retarded, a person must prove three facts by a preponderance of the evidence: (a) significantly subaverage general intellectual functioning (proven by showing an IQ below 70) and (b) deficits in adaptive behavior that (c) originated during the developmental period (before age 18). See Tex. Health & Safety Code § 591.003(13). This definition is almost identical to the AAMR definition of mental retardation. The Texas Court of Criminal Appeals adopted the AAMR definition of retardation for death penalty cases in Briseno. 135 S.W.3d at 8. The Briseno court recognized that the AAMR definition was designed for the purpose of providing social services, not for the purposes of determining whether a person was “so impaired as to fall within the range of mentally retarded offenders about whom there is national consensus.” It also recognized that determining deficits in adaptive behavior (the second element) was highly subjective. Id. at 8. To account for these weaknesses in definition, the Briseno court listed seven factors to flesh out the AAMR definition to determine whether the convict falls within Atkins so as to be protected against the death penalty. The court held: The adaptive behavior criteria [second element] are exceedingly subjective, and undoubtedly experts will be found to offer opinions on both sides of the issue in most cases. There are, however, some other evidentiary factors which factfinders in the criminal trial context might also focus upon in weighing evidence as indicative of mental retardation or of a personality disorder: • Did those who knew the person best during the developmental stage— his family, friends, teachers, employers, authorities — think he was mentally retarded at that time, and, if so, act in accordance with that determination? • Has the person formulated plans and carried them through or is his conduct impulsive? • Does his conduct show leadership or does it show that he is led around by others? • Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? • Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? • Can the person hide facts or lie effectively in his own or others’ interests? • Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose? 135 S.W.3d 1, 8 (2004). The Briseno court, in other words, fashioned these evidentiary factors as a means “of developing appropriate ways to enforce the constitutional restriction” set out in Atkins. And on their face, nothing about them contradicts Atkins, as they were developed explicitly to comply with Atkins. This court has never cast doubt on this approach. To the contrary, in Clark v. Quarterman, 457 F.3d 441 (5th Cir.2006), this court held that “it is not ‘clearly established Federal law as determined by the Supreme Court of the United States’ that state court analysis of subaverage intellectual functioning must precisely track the AAMR’s recommended approach.” 457 F.3d at 445. Clark specifically rejected Petitioner’s argument that “the Texas courts must apply the approach articulated by the [AAMR], which dictates that IQ examiners account for the appropriate confidence band.” Id. If Texas need not follow AAMR procedures when determining subaverage intelligence (a relatively objective determination), then it would be senseless to think Texas must follow AAMR procedures when determining deficits in adaptive behavior (a far more subjective determination). In light of this court’s previous treatment of the Briseno factors, the Supreme Court’s broad holding in Atkins, and the irrelevance for the purposes of this inquiry of Atkins’ dicta (such as footnote 22), we conclude that the application of the Briseno factors, even in the absence of specific employment of the AAMR’s methodology for determining deficiencies in adaptive behavior, cannot be an “unreasonable application” of Atkins’ broad holding. Atkins clearly did not hold — and Petitioner does not even assert that Atkins held — that states must employ the AAMR or APA definitions of mental retardation, let alone that they must employ the same underlying clinical analysis that the AAMR and APA use to determine which patients meet each prong of those organizations’ definitions; the absence of such a holding is determinative here. This analysis also disposes of Petitioner’s overlapping argument that the state court decision was “contrary to” clearly established federal law. A state court’s decision is “contrary to” clearly established federal law if “it relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.2004). For the same reasons that employment of the Briseno factors to determine adaptive functioning is not an unreasonable application of Atkins, the Briseno factors themselves do not “contradict” the Supreme Court’s holding in Atkins. See Terry Williams, 529 U.S. at 405, 120 S.Ct. at 1519 (holding state court decision is “contrary” when it “applies a rule that contradicts the governing law set forth in our cases”). This will come as no surprise, since this court has already concluded that the Briseno is not “contrary to” Atkins in precisely this regard. See Woods v. Quarterman, 493 F.3d 580, 587 n. 6 (5th Cir.2007) (“[Petitioner] also argues that Ex parte Briseno, relied on by the state habeas court, is contrary to Atkins in the way it allows courts to evaluate limitations in adaptive behavior .... We find nothing in Briseno that is inconsistent with Atkins in this regard.”). III. Section 225^(d) (2) Claims With Section 2254(d)(1) unavailable as a means for obtaining federal habeas relief, Petitioner must rely on Section 2254(d)(2), but ultimately in vain. Section 2254(d)(2) excepts from the section’s general prohibition on habeas relief cases where the adjudication of the claim in state court “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). The TCCA concluded that Petitioner lacked the deficits in adaptive behavior which, combined with his subaverage intellectual ability, would have yielded the characteristics of mental retardation that render him not morally culpable of a capital crime. Petitioner, on the other hand, argues that the VABS test is dispositive: Under AAMR guidelines, a person with a VABS score of 57 and an IQ test of 69 usually would be classified as mildly mentally retarded. Petitioner argues that the Briseno factors are not adequate tools to determine whether a person is retarded, and that the TCCA’s determination was unreasonable.
3626613-17616	DeCICCO, Senior Judge. A general court-martial convicted Private Levell, contrary to his pleas, of the premeditated murder of Sergeant [Sgt] Christopher Smith, U.S. Marine Corps, in violation of Article 118, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 918. He was also found guilty, in accordance with his pleas, of an 8-day unauthorized absence in violation of Article 86, UCMJ, 10 U.S.C. § 886. The court members sentenced him to confinement for life, a dishonorable discharge, and the forfeiture of all pay and allowances. The convening authority approved the sentence as adjudged, except that he disapproved confinement in excess of 40 years. In this appeal, the appellant raises two assignments of error. First, he argues that the military judge erred in denying the defense’s request to instruct the members regarding the concept of a “cool mind” in the court’s premeditated murder instruction. Second, he asserts that the prosecution failed to prove his guilt of premeditated murder beyond a reasonable doubt, claiming that he did not murder Sgt Smith with a “cool mind.” Therefore, he argues that we should affirm a finding of the lesser offense of unpremeditated murder. Having considered the record of trial, and the briefs and oral arguments of the parties, we have concluded that the military judge did not err to the substantial prejudice of the appellant in not giving the instruction requested by the defense. We also have concluded that the evidence was sufficient to establish the element of premeditation beyond a reasonable doubt. Therefore, we affirm the findings and sentence as approved on review below. Facts On the evening of 1 November 1991, Sgt Smith and several of his friends, after drinking some wine and beer, decided to visit a club at the Ramada Inn located on Highway 17 near Camp Lejeune, North Carolina. Shortly after their arrival, one of Smith’s companions, Sgt Spencer, became involved in a heated argument with a woman in the parking lot adjacent to the Inn. This woman was the appellant’s girlfriend. Upon hearing of the confrontation involving his girlfriend, the appellant, who was inside the club, burst outside. Witnesses described him as angry, but not drunk. Sgt Fuller accompanied the appellant outside. The argument continued with Smith doing some of the shouting and attempting to restrain the parties, and with Spencer slapping Fuller on the face. At this point, the appellant stated he was “going to get [his] sh_” Those who heard this comment realized that appellant was referring to a weapon. Spencer replied: “Go get your pea shooter; I’ll be right here.” The appellant then obtained Fuller’s car keys and retrieved a black case with a handle from the car. As the appellant returned to the site of the argument, Corporal [Cpl] Quick confronted him and tried to talk him out of bringing a weapon to the argument. The appellant dropped the case. He and Cpl Quick then squared off with fists raised, and a hotel security guard tried to break them up. Just then, Smith ran by the appellant, between two parked cars. With Smith lying dazed on the ground, the appellant abandoned his confrontation with Cpl Quick, walked three to five steps to where he had dropped his gun case, removed the gun, walked over to Smith, and, according to one witness, said ‘What do you think about this?” The appellant then fired a single .22 caliber bullet into Smith’s chest. Various witnesses testified that 3 to 10 seconds elapsed from the time he went for his gun case to the firing of the shot. After shooting Smith, the appellant fled and avoided immediate apprehension. He turned himself in several days later. The bullet he fired into Sgt Smith’s chest perforated Smith’s pulmonary artery and lacerated his aorta. He was pronounced dead shortly after the shooting at a nearby hospital. The convening authority referred the case for trial by general court-martial as a capital case. In a pretrial motion, the defense requested the military judge to instruct the court members as follows regarding the offense of premeditated murder: You are advised that the killing of a human being is unlawful when done without legal justification or excuse. The phrase “premeditated design to kill” means the formation of both a specific intent to kill and consideration of the act intended to bring about death. Intent to kill alone is insufficient to sustain a conviction for premeditated murder. In other words, the government must prove to you beyond a reasonable doubt that the accused specifically intended to cause the death of Sergeant Smith, and that the accused reflected upon his action prior to his shooting of the pistol. The “premeditated design to kill” must precede the killing but does not have to exist for any considerable or particular length of time. While the law does not set forth any particular time that the act must have been considered, you are advised that the government must prove to you beyond a reasonable doubt that the killing was committed by the accused “after reflection by a cool mind.” If you do not find beyond a reasonable doubt that at the time of the killing of Sergeant Smith, the accused had a premeditated design to kill him, then you may not find the accused guilty of the premeditated murder of Sergeant Smith. Appellate Ex. LXXIII (emphasis in original). The defense argued, citing United States v. Viola, 26 M.J. 822, 829 (A.C.M.R.), aff'd. 27 M.J. 456 (C.M.A.1988) (sum.disp.), cert, denied, 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 (1989), that such language was necessary to explain sufficiently the subtle difference between premeditated and unpremeditated murder to the members. The highlighted language in the instruction was taken directly from Viola The military judge declined to give the proposed instruction. He stated: I am opposed to the language, “after reflection by cool minds.” I am opposed of [sic] it for the following reason, that language presupposes, in my mind, that one cannot premeditate murder while in an agitated state of mind, or in the heat of passion. This is not the law as I read the law. The members may consider the accused’s state of mind, or mental processes when making the determination whether he has the requisite capacity to premeditate to kill. But, to give them that instruction using the language “after reflection by cool minds” suggests to me, and I’m sure would suggest to them, that you couldn’t premeditate while in an agitated state. This is not true. You can, and the law recognizes the fact that you can. ... But, to tell them that there has to be a cooling off period, and only then can he premeditate, is not the law, and that’s what that language suggests. Record at 273-74. The military judge further ruled that the defense counsel could not argue that passion means a degree of anger, rage, pain or fear which prevents cool reflection. Record at 275. In his instructions to the members, the military judge gave them the tailored elements of premeditated murder. Record at 646-47. He then stated: Now you are advised that the killing of a human being is unlawful when done without legal justification or excuse. The term “premeditated design to kill,” means the formation of a specific intent to kill and consideration of the act intended to bring about death. The premeditated design to kill does not have to exist for any measure-able or particular length of time. The only requirement is that it must precede the killing. Now if you do not find beyond a reasonable doubt that at the time of the killing of Sergeant Christopher J. Smith, the accused had a premeditated design to kill Sergeant Smith then you may not find Private Levell guilty of the premeditated murder of Sergeant Smith. You are advised that an issue has been raised by the evidence as to whether the accused acted in the heat of sudden passion. “Passion” means the degree of rage, pain, or fear which prevents cool reflection. The [sic] sufficient cooling off time passes between the provocation and the time of the killing which would allow a reasonable person to regain self-control and refrain from killing. Provocation will not reduce murder to the lesser offense of voluntary manslaughter. However, you may consider evidence of the accused’s passion in determining whether he possessed sufficient mental capacity to have the premeditated design to kill. An accused cannot be found guilty of premeditated murder if at the time of the killing his mind was so confused by anger, rage, pain, sudden resentment, or fear that he could not or did not premeditate. On the other hand, the fact that the accused’s passion may have continued at the time of the killing does not necessarily demonstrate that he was deprived of the ability to premeditate or that he did not premeditate. Thus, if you are convinced beyond a reasonable doubt that sufficient cooling off time had passed between the provocation and the time of the killing which would allow a reasonable person to regain his self-control and refrain from killing you must decide whether he in fact had the premeditated design to kill. Record at 647-48. After giving this instruction, the military judge asked the members if they understood the difference between premeditated murder and unpremeditated murder, and they indicated that they did. Record at 648. The members then convicted the appellant of premeditated murder by a non-unanimous vote. The lack of unanimity eliminated the possibility of a death sentence. Article 52(a)(1), UCMJ, 10 U.S.C. § 852(a)(1). Discussion The Instruction Issue In military law, no person may be convicted of premeditated murder unless the prosecution establishes beyond a reasonable doubt that he unlawfully killed another with a “premeditated design to kill.” Article 118(1), UCMJ. To define this concept, the Manual for Courts-Martial, United States, 1984[MCM], ¶ 43c(2)(a) provides: A murder is not premeditated unless the thought of taking life was consciously conceived and the act or omission by which it was taken was intended. Premeditated murder is murder committed after the formation of a specific intent to kill someone and consideration of the act intended. It is not necessary that the intention to kill have been entertained for any particular or considerable length of time. When a fixed purpose to kill has been deliberately formed, it is immaterial how soon after-wards it is put into execution. The existence of premeditation may be inferred from the circumstances. The words “consideration of the act intended” to bring about death are not terms of art and have ordinary meanings. United States v. Hoskins, 36 M.J. 343, 346 (C.M.A. 1993); United States v. Teeter, 16 M.J. 68, 71 (C.M.A.1983). In an attempt to explain the distinction between premeditated and unpremeditated murder, the Army Court of Military Review in Viola, citing various legal treatises, held that “[t]o sustain a conviction [for premeditated murder], the killing must have been committed after reflection by a cool mind.” 26 M.J. at 829. The U.S. Court of Military Appeals (now the U.S. Court of Appeals for the Armed Forces) adopted the “cool mind” distinction in Hoskins. It stated that “[premeditation requires that one with a cool mind did, in fact, reflect before the killing.” 36 M.J. at 346. Subsequently, in a capital case in which it upheld the distinction in Article 118, UCMJ, between premeditated and unpremeditated murder against a constitutional attack, it found that “consideration of the fatal act with a cool mind” was a more serious form of murder justifying a more severe penalty than an intentional killing without such consideration. United States v. Loving, 41 M.J. 213, 279-80 (1994), cert. granted, — U.S. -, 116 S.Ct. 39, 132 L.Ed.2d 920 (1995). We have also held that proof of reflection with a cool mind is necessary to sustain a conviction. United States v. Thomas, 43 M.J. 550, 588 (N.M.Ct.Crim. App.), mandatory review filed, 43 M.J. 173 (C.M.A.1995). From the above, we conclude that the “cool mind” distinction was adopted to explain what evidence is needed to sustain a conviction of premeditated murder. It clarifies the Code’s language regarding a “premeditated design to kill” and the MCM’s language of what is meant by a “consideration of the act intended.” In light of Hoskins and Loving, it is now clear that these terms contemplate a reflection by a cool mind before the fatal act in order to sustain a conviction. The nature and extent of the “premeditated design to kill” and “consideration of the act intended” have not changed. We do not read Hoskins as establishing a stricter test for what the prosecution must prove or as modifying what the Court held in Teeter. The cases that have discussed the “cool mind” distinction have not involved instructional issues. The issue in Viola and Hoskins involved the sufficiency of the evidence, not the instructions that were given. Moreover, the instructions given in this case were identical to the instructions found sufficient in Loving. 41 M.J. at 280. Neither Hoskins, Loving, nor Viola held or even vaguely suggested that court members must be specifically instructed that reflection by a “cool mind” is needed to sustain a conviction of premeditated murder. What is required is that the militaiy judge provide the court members with clear and meaningful instructions as to the distinction between premeditated murder and unpremeditated murder. While counsel may request certain instructions from the military judge, the judge possesses substantial discretion in deciding what instructions to give. United States v. Damatta-Olivera, 37 M.J. 474 (C.M.A.1993), cert, denied, — U.S.-, 114 S.Ct. 2760, 129 L.Ed.2d 875 (1994). The exact words the military judge selects to explain a particular concept are within his discretion. An accused does not have a right to have any particular form or words used in an instruction. United States v. Czekala, 42 M.J. 168, 170 (1995), cert, denied, — U.S.-, 116 S.Ct. 403, 133 L.Ed.2d 322 (1995) (discussing particular form of words in instruction on the prosecution’s burden of proof). What really matters is not the particular words, but the proper explanation of the legal principle involved to the court members. In Damatta-Olivera, the Court used a three-part test to determine whether the denial of a requested instruction constitutes error: (1) whether the charge is correct; (2) whether it is substantially covered in the main charge; and (3) whether it is on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its effective presentation. 37 M.J. at 478. In this case, the requested instruction was not an incorrect statement of the law. Viola, 26 M.J. 822 (1988); Hoskins, 36 M.J. 343 (1993). While we would not have found error had the military judge given it to the members, we believe his rationale for not giving it made sense. Persons can be angry and yet not be in such a rage so as to preclude reflection by a cool mind. In other words, some angry persons can and often do pre meditate. Anger does not always preclude premeditation. It is this anger that can create an intent to kill, and it may not prevent one from coolly reflecting in a calculated manner. Second, the requested instruction did not provide anything substantive in addition to the standard instructions given by the military judge. These instructions sufficiently covered the important concept of the distinction between premeditated murder and unpremeditated murder. The military judge defined the element requiring a “premeditated design to kill” with the MCM’s “consideration of the act intended” language. Furthermore, the military judge instructed the members that they could not convict the appellant of premeditated murder if they found he had acted while in a heat of sudden passion (defined as rage, pain or fear that prevents cool reflection). He also instructed that if they were convinced that a sufficient “cooling off time” had passed between the provocation and the time of the killing that would allow a reasonable person to regain self-control and refrain from killing, then they had to decide whether the accused had a premeditated design to kill. We find the instructions clear and consistent with those that have been held to have an ordinary meaning. Teeter, 16 M.J. 68 (1983). The members understood the instructions and had no questions regarding them. The instructions given conveyed the necessary concept of a premeditated design to kill, even though the specific language requested by the defense was not used. Third, after examining the entire record of trial, we find that the military judge’s refusal to give the requested instruction did not deprive the appellant of the ability to highlight the distinctions between premeditated and unpremeditated murder to the members. The defense position throughout trial that the appellant did not premeditate the killing was displayed from voir dire through final argument. Thus, while the defense counsel was not free to use the “cool mind” language in argument, he was able to argue the concepts of reflection and premeditation fully and effectively. Therefore, the appellant has also not met the third prong to establish instructional error. Based on the foregoing, we find no merit in the first assignment of error. The instructions given to the members were adequate and, in fact, were the same as those upheld by the Court of Appeals in Loving, 41 M.J. 213 (1994). The military judge did not abuse his discretion in this case. The Sufficiency of the Evidence Issue
4072264-13639	PER CURIAM: Michael J. Kelly, Sr., a federally licensed firearms dealer, was arrested after agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) seized numerous illegal weapons from his residence and place of business, MKS Specialties, Inc. (MKS). He was convicted for five violations of federal law involving the transfer of firearms to a non-resident, the possession of unregistered machineguns, and the possession of semi-automatic assault weapons. The district court also ordered twenty-eight firearms, possessed or transferred by MKS, forfeited to the government. Kelly appeals his convictions, and he and six other claimants appeal the forfeiture order. Finding no error, we affirm the convictions and forfeiture order. I. Kelly owns the MKS gun dealership, located in Grafton, West Virginia. At MKS, Kelly specializes in manufactuiing and distributing the MKS M-14A, a gun that he manufactures using receivers from decommissioned M-14 machineguns. (The military decommissions M-14 machineguns by torch-cutting the receiver, the frame of the gun that contains the firing mechanism, into two parts.) In June 2001 agents from the BATFE informed Kelly that the M-14 receivers he was using to manufacture the MKS M-14A were machineguns as defined in 26 U.S.C. § 5845(b). (The Firearm Owners’ Protection Act makes it a crime to possess a machinegun that was not lawfully possessed before the Act went into effect on May 19, 1986. See 18 U.S.C. § 922(o).) The BATFE served a cease and desist letter on Kelly, but he continued to manufacture and sell M-14 receivers and MKS M-14As. On July 24, 2002, the BATFE executed a search warrant on Kelly’s residence, which also served as his place of business. The search warrant authorized the agents to seize “[a]ll MKS M-14 receivers and all MKS M14A1 receivers and/or firearms utilizing the aforementioned receivers.” S.J.A. 41. In addition to the guns listed in the warrant, the agents discovered an Uzi machinegun receiver, a Maadi semi-automatic assault rifle, an FAL semiautomatic assault rifle, and an AK-47 machinegun. The agents took the guns to BATFE agent Richard Vasquez, who was on the premises during the search, for identification. Agent Vasquez, an expert gunsmith, immediately determined that the firearms were illegal and instructed his fellow agents to seize the guns. Kelly was indicted for 206 violations of federal law. He filed a motion to dismiss and a motion to suppress the four guns that were not listed in the search warrant. The district court denied both motions. Kelly was convicted after a jury trial on six counts: Counts 95-97 (unlawful transfer of firearms to a non-resident in violation of 18 U.S.C. § 922(b)(3)); Counts 98-99 (unlawful possession of machineguns in violation of 26 U.S.C. § 5861(d)); and Count 205 (unlawful possession of semi-automatic assault weapons in violation of 18 U.S.C. § 922(v)(l)). The district court granted Kelly’s motion for acquittal on Count 99 and denied his other post-trial motions. The court sentenced Kelly to 24 months’ imprisonment on each of the five counts to run concurrently. Kelly appeals his convictions. The government also filed a civil forfeiture action for thirty-four MKS-M14A receivers that the BATFE recovered from seventeen individuals throughout the United States. Eleven individuals, including Kelly, filed claims to the seized guns in the district court. The government alleged that the MKS M-14A firearms were unlawful machineguns and requested that they be forfeited to the government pursuant to 26 U.S.C. § 5872(a). The district court granted the government’s motion for summary judgment and ordered the guns forfeited. Kelly and six other claimants appeal the forfeiture order, and this appeal has been consolidated with Kelly’s appeal of his conviction. II. Kelly challenges his convictions on the five counts that survived post-trial motions. First, he argues that his convictions for Counts 98 and 205 should be vacated because the Uzi receiver and two semiautomatic assault weapons were unlawfully seized from his residence. Second, he argues that 18 U.S.C. § 922(v), the ban on semi-automatic assault weapons, exceeds Congress’s power under the Commerce Clause and violates his Second Amendment right to bear arms. Third, he argues that the convictions on Counts 95-97 should be reversed because (a) the district court erred in instructing the jury, (b) there was insufficient evidence to support the convictions, and (c) the government’s expert witness testimony was unreliable. We consider these arguments in turn. A. Kelly argues that the district court erred in denying his motion to suppress the Uzi receiver (Count 98) and the two semiautomatic assault weapons (Count 205). Specifically, he says that the district court erred in holding that these weapons, which were not identified in the search warrant, were lawfully seized under the plain view exception to the warrant requirement. Under the plain view doctrine law enforcement officers may seize an object without a warrant if (1) the officers are “lawfully in a position from which they view an object,” (2) the object’s incriminating character is “immediately apparent,” and (3) the officers have a “lawful right of access to the object.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Kelly argues that the plain view doctrine cannot justify the seizure because “it was [not] ‘immediately apparent’ to the agents who brought the three firearms to [agent] Vasquez that there was anything ‘incriminating’ about the three firearms.” Appellant’s Br. at 15. We have previously rejected the argument that an item’s illegality must be apparent to the searching officer at the precise moment that he spots it. See United States v. Jackson, 131 F.3d 1105 (4th Cir. 1997) (upholding seizure of drug paraphernalia even though seizing officer did not recognize the paraphernalia’s illegality until after he left the room where it was located). The “immediately apparent” prong of the plain view doctrine only requires that “the incriminating nature of the item ... become apparent, in the course of the search, without the benefit of information from any unlawful search or seizure.” United States v. Garces, 133 F.3d 70, 75 (D.C.Cir.1998). The BATFE agents did not unlawfully search or seize the three weapons prior to the time Vasquez determined that they were possessed unlawfully. The agents’ decision to take the guns to Vasquez, who was located on the premises, was clearly “[ ]related to the objectives of the authorized intrusion” and therefore not an additional or unlawful search. Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). Nor did this movement of the guns constitute an unlawful seizure because the agents did not “mean ingfully interfere” with Kelly’s possessory interest in the guns. Id. at 324, 107 S.Ct. 1149; cf. Garces, 133 F.3d at 74 (“[W]e find neither search nor seizure in [the agents’] carrying the key about the house to determine its evidentiary value.”); United States v. Menon, 24 F.3d 550, 560 (3d Cir.1994) (stating that agent executing a search warrant did not seize documents when she moved them to another room for a fellow officer to inspect). Thus, we conclude that the agents’ seizure of the three guns was lawful pursuant to the plain view doctrine. B. 1. Kelly argues that Congress exceeded its Commerce Clause powers in enacting 18 U.S.C. § 922(v)(l), which prohibits the possession of most semi-automatic assault weapons. Kelly argues that Congress does not have the power to regulate what he describes as intrastate, non-economic activity. This argument is merit-less. The Commerce Clause authorizes Congress to regulate “those activities that substantially affect interstate commerce.” United States v. Lopez, 514 U.S. 549, 559, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The ban on the possession of semi-automatic assault weapons was plainly intended to reduce the flow of those weapons in interstate commerce. See Navegar, Inc. v. United States, 192 F.3d 1050, 1058 (D.C.Cir.1999). As the D.C. Circuit has noted, section 922(v) affects commerce by “impos[ing] criminal liability for those activities which fuel the supply and demand for such weapons.” Id. Regulations of intrastate activities that affect the supply or demand of a commodity are well within Congress’s Commerce Clause powers. See Wickard v. Filburn, 317 U.S. Ill, 128, 63 S.Ct. 82, 87 L.Ed. 122 (1942) (holding that Congress had the power to regulate intrastate cultivation of wheat because of its effect on the national market for that commodity). 2. Kelly also argues that the ban on semi-automatic assault weapons in section 922(v) violates his Second Amendment right to bear arms. The Second Amendment states that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We held in Love v. Pepersack, 47 F.3d 120 (4th Cir.1995), that the Second Amendment does not confer an absolute individual right to bear firearms. In that case we adopted the collective rights theory, interpreting the Amendment to protect the states’ right to organize and arm militias. Accordingly, a person challenging a federal gun restriction must show that his possession of the gun “bore a ‘reasonable relationship to the preservation or efficiency of a well regulated militia.’” Id. at 124 (quoting United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939)). Kelly has not made any showing that he possessed the semi-automatic assault weapons in connection with membership in a state militia. C. Kelly raises several challenges to his convictions under Counts 95-97 for transferring firearms to an out-of-state resident in violation of 18 U.S.C. § 922(b)(3). 1. Kelly argues that the district court failed to instruct the jury on Counts 95-97 that the government was required to prove that he knew the transferee was not a federally licensed firearms dealer. Section 922(b)(3) makes it unlawful for a licensed dealer to “sell or deliver ... any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in ... the State in which the licensee’s place of business is located.” 18 U.S.C. § 922(b)(3). This section does “not apply to transactions between licensed ... dealers.” Id. § 922(b). The district court’s instruction “taken as a whole ... fairly states the controlling law.” See United States v. Cobb, 905 F.2d 784, 789 (4th Cir.1990) (stating standard of review for challenges to jury instructions). The court told the jury that to convict Kelly on Counts 95-97 it must find that (1) he “knowingly and willfully sold or delivered firearms to persons who the defendant knew ... did not reside in West Virginia,” and (2) “the person to whom the firearm was transferred was not a licensed ... dealer.” J.A. 164. The district court correctly instructed the jury that the willfulness (and knowledge) requirement in section 922(b)(3) applies to each of the elements of that offense, specifically (1) the sale of a firearm (2) to an out-of-state resident. The willfulness (and knowledge) requirement does not apply to the “dealer to dealer” provision in section 922(b), which is an exception to the statute’s application and not an element of the offense. Accordingly, there was no error in the instruction because the government was not required to prove that Kelly knew that the transferee was not a federally licensed firearms dealer. 2. Kelly’s other challenges to his conviction on Counts 95-97 are meritless. After reviewing the record, we conclude that the convictions on these counts were supported by sufficient evidence. Furthermore, we conclude that the district court did not abuse its discretion in admitting agent Vasquez’s expert testimony that the M-14 receivers seized from Kelly’s residence could “readily be converted” to fire ammunition. See 18 U.S.C. § 921(a)(3) (stating the definition of “firearm”). III. We next consider the appeal filed by Kelly and six other claimants (collectively, “Kelly”) of the district court’s order granting summary judgment to the government on its in rem forfeiture claim. The central question is whether the MKS M-14A guns seized by the BATFE agents are “machineguns” as defined in 26 U.S.C. § 5845(b). According to the definition, “The term ‘maehinegun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” In this civil forfeiture action the government has the initial burden to establish probable cause to believe that the seized items were unlawful machineguns. The burden then shifts to the claimants to show by a preponderance of the evidence that the guns were improperly seized. See United States v. One TRW, Model M14, 7.62 Caliber Rifle, 441 F.3d 416, 419 (6th Cir.2006). It is undisputed that the defendant MKS M-14As could not shoot automatically at the time of their seizure. In support of its motion for summary judgment the government introduced a videotaped deposition in which BATFE agent Vasquez made the MKS M-14A shoot automatically in approximately fifty minutes. (The parties stipulated that the MKS M-14A used in the deposition was representative of the defendant firearms.) Vasquez used three common tools to modify the weapon, including a Dremmel drill, a carbide burr, and a Tig welder. He also testified that the spare parts used to restore the weapon could be purchased for approximately $79.00.
4077144-5933	MEMORANDUM OPINION Denying Motion to Enforce and Compel Non-Party Subpoena RUDOLPH CONTRERAS, District Judge. I. INTRODUCTION This action arises from the plaintiffs motion to enforce a non-party subpoena and compel production against Dr. Mark Borigini. The subpoena was issued and served in the U.S. District Court for the District of Maryland. For the reasons discussed below, plaintiffs motion to enforce the non-party subpoena is denied and the case is dismissed. II. FACTUAL BACKGROUND Plaintiff Mark Gordon, who suffers from Lupus, brought suit against Federal Express Corporation and Aetna Life Insurance Company seeking review of denial of his disability benefits pursuant to the Employee Retirement Income Security Act of 1974 (ERISA) in the U.S. District Court for the Middle District of Florida. Pl.’s Mot. to Enforce Non-Party Subpoena and Compel Produc. (Dkt. No. 1) at 1 & Ex. Q (“Pl.’s Mot.”). The underlying litigation is still currently pending in that District. Following the issuance of a limited discovery order by Magistrate Judge Douglas Frazier in the Middle District of Florida, plaintiff has sought further discovery against Dr. Mark Borigini. Dr. Borigini served as a medical reviewer for MES Solutions and reviewed Gordon’s continuing claim for disability benefits. Pl.’s Mot. (Dkt. No. 1) at 1-2. The named defendants in plaintiffs underlying litigation allegedly relied on a corrected peer report prepared by Dr. Borigini to terminate plaintiffs disability benefits. Id. On September 19, 2012, plaintiff served Dr. Borigini with a third-party subpoena in the above-mentioned case. The subpoena was issued by the U.S. District Court for the District of Maryland. Two months later, plaintiff filed a motion to enforce the subpoena and compel production in the District for the Middle District of Florida, Jacksonville Division. Def.’s Opp’n to Mot. to Enforce Subpoena and Compel Produc. (Dkt. No. 4) at 2. The Jacksonville Division transferred the case to the Fort Myers Division. Id. Plaintiff then moved to strike his motion on January 7, 2013, noting he “inadvertently mailed [the] document for filing to the wrong Court.” Id., Ex. B. The court construed plaintiffs motion to strike as a motion to dismiss the case and granted dismissal. Id., Ex. C. The court further counseled plaintiff that the relevant subpoena was issued out of the District of Maryland and that a motion to quash would be properly filed with that court. Id. The plaintiff proceeded to file a motion to enforce the subpoena in this Court on January 10, 2013, see Pl.’s Mot., which the defendant opposes. III. ANALYSIS Federal Rule of Civil Procedure 37(a)(1) states that “a party may move for an order compelling disclosure or discovery.” Fed.R.Civ.P. 37(a)(1). Further, “[a] motion for an order to a nonparty must be made in the court where the discovery is or will be taken.” Fed.R.Civ.P. 37(a)(2). A subpoena for production or inspection “must issue ... from the court for the district where the production or inspection is to be made.” Fed.R.Civ.P. 45(a)(2). “Subpoenas are process of the issuing court,” Watts v. S.E.C., 482 F.3d 501, 506 (D.C.Cir.2007) (internal citations omitted), and “[t]he language of Rule 45 clearly contemplates that the court enforcing a subpoena will be the court that issued the subpoena.” United States v. Star Scientific, Inc., 205 F.Supp.2d 482, 484-85 (D.Md.2002); see also Fed.R.Civ.P. 45(a)(2), Advisory Committee Note, 1991 Amendments (noting “the court in whose name the subpoena is issued is responsible for its enforcement”). Here, the subpoena has been issued by the District Court for the District of Maryland, yet the plaintiff filed a motion to compel with this Court. Plaintiff explains that the subpoena was served on Dr. Borigini at his apparent home address in Maryland, but at all times Dr. Borigini responded to plaintiffs counsel from a Washington, D.C. address, as evidenced by the letterhead on Dr. Borigini’s correspondence. Pl.’s Resp. to Def.’s Opp’n to Enforce Subpoena (Dkt. No. 5) at 2. Although plaintiff does not clearly state a basis for why he filed his motion to compel in this District, the Court credits plaintiff’s response as arguing that, since Dr. Borigini only responded to the subpoena from a Washington, D.C. address, this Court has the authority to enforce the subpoena. Id. The only plausible basis for plaintiffs decision is the text of Rule 37(a)(1), which stipulates “a motion for an order to a nonparty must be made in the court where the discovery is or will be taken.” Fed. R. Civ. P. 37(a)(2). Since Dr. Borigini responded to all of the plaintiffs communications from an address in Washington, D.C. rather than the Maryland address at which he was served, the plaintiff arguably believed that this Court could properly enforce the subpoena as the plaintiff hopes “discovery ... will be taken” in the District of Columbia. This does not negate, however, that the subpoena was originally issued from the District of Maryland and any motion to compel would properly be filed with that court. As previously stated, subpoenas are process of the issuing court and “nothing in the Rules even hints that any other court may be given the power to quash or enforce them.” In re Sealed Case, 141 F.3d 337, 341 (D.C.Cir.1998). Accordingly, the plaintiffs motion to enforce and compel is denied. Defendant requests that this Court award him expenses incurred in opposing the plaintiffs motion pursuant to Federal Rule of Civil Procedure 37(a)(5), which states: [i]f the motion [to compel] is denied, the court ... must, after giving an opportunity to be heard, require the movant ... to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
22925-17222	PER CURIAM. In these consolidated appeals, defendant-appellant Larry D. Blavin, individually, and doing business as Providence Investment Advisory, first appeals from the district court’s grant of summary judgment against him. The district court found that Blavin repeatedly violated the anti-fraud provisions of the Securities Exchange Act of 1934 and the Investment Advisers Act of 1940. The district court also found that Blavin had sold investment advice to the public without registering as an investment adviser, as required by the latter Act. Blavin maintains that his own affidavits raised material issues of fact that rendered inappropriate a grant of summary judgment. Blavin also appeals from the disgorgement orders and procedure by which the district court ordered that he relinquish wrongful profits. Upon consideration of Blavin’s contentions, we affirm the district court. I. At the time of the events at issue, Blavin was a pharmacist doing business in Farmington Hills, Michigan. Since at least April 1981, he owned Providence Investment Advisory, an unincorporated investment advisory service. From April through November 1981, Blavin authored and published six issues of a newsletter under Providence’s name, each discussing a different company and recommending the purchase of its stock. Without registering with the Commission as an investment adviser, Blavin distributed these newsletters to at least 2,080 subscribers who resided in 40 states and Canada, charging them a $30 annual fee. Blavin also mailed copies of his newsletters to other persons in order to solicit additional subscriptions. In May 1981, Blavin distributed his newsletter to approximately 5,500 subscribers and prospective subscribers. The newsletter recommended the purchase of the securities of Alanda Energy Corporation, a small Canadian company engaged in oil and gas exploration and production. The newsletter contained numerous material misstatements of fact concerning Alanda’s present and projected cash flow, its current assets, projected earnings, actual drilling activities, and the anticipated production from Alanda’s projected drilling projects. These factual representations were not based upon information Blavin gathered from Lawrence Brophy, an Alanda representative. They also do not appear in other published reports to which Blavin refers in his affidavits. Blavin’s May newsletter also represented Providence as a “chartered and registered service,” at a time when it was not registered as an investment advisor with the Commission or any state. The May newsletter contained a disclaimer that “Providence Investment Advisory may trade for its own account.” That disclaimer also in- eluded the statement that “[t]he security portfolio of our employees, officers or affiliated companies may, in some instances, include securities mentioned in this issue.” The disclaimer did not reveal that Blavin was the sole owner and alter-ego of Providence. The newsletter did not reveal that during April and May 1981, Blavin had purchased over 10% of the shares available for public trading. During June and July, 1981 Blavin sold his entire Alanda holdings for a profit of at least $76,127. The Commission’s staff learned of the May newsletter and contacted Blavin in June, 1981. Blavin admitted that, despite the representation in his newsletter, he was not registered as an investment adviser under the Investment Advisors Act. Ten days later, Blavin filed an application to register with the Commission. While his application was pending, Blavin published another issue of the Providence newsletter in July. At the Commission’s request, on August 3, Blavin consented to delay the effective date of his registration. Nevertheless, Blavin authored and distributed issues of the Providence newsletter in August, October, and November 1981. The October newsletter recommended purchase of the stock of Velvet Exploration, Ltd., a Canadian company engaged in mineral and gas production. From June through September 1981, Blavin had purchased approximately 25% of the publicly available shares of Velvet stock. The October newsletter also failed to disclose that Blavin had recently purchased a large block of the stock he was recommending. The October newsletter portrayed Velvet’s Mexican mining operation, in partnership with the Mexican government, as covering 200 acres of land. In fact, the company’s partner was a Mexican national, as required by Mexican law, and the mine covered twenty-two acres. Blavin admitted including non-oil income when he computed the $384,000 figure which the October newsletter represented as the company’s annual income from its oil operations. Blavin asserted in his affidavit that he had received a package of seventy-five documents, including press releases and financial statements from Velvet’s president. According to Blavin, he used those materials in preparing the October newsletter about Velvet, because he found them “especially trustworthy.” The materials did not, however, contain any of the misrepresentations that appeared in the Providence newsletter. Blavin testified by deposition, for example, that Velvet’s president told him the company’s current liabilities were “nil.” Blavin testified that he selected an “arbitrary” figure of $15,000 to report, because “it seemed to me there had to be some liability.” A March 31, 1981 Auditor’s Report, which was released three months before the October newsletter, revealed current liabilities of $145,322. During October and November 1981, Blavin sold Velvet shares for a net profit of $268,-542. On or about November 6, 1981, Blavin distributed a Providence newsletter that recommended purchase of I.R.E. Financial Corporation securities. From June to November, 1981, Blavin had purchased approximately 10% of the publicly traded shares of I.R.E. His November newsletter did not disclose this ownership of the recommended stock. Blavin’s affidavit contends that he prepared the November newsletter primarily from research reports, newspaper articles, and annual reports of the company. The misrepresentations that appear in the Providence newsletter do not appear in these primary materials. Blavin’s newsletter overstated both I.R.E.’s projected earnings per share and its cash on hand. The newsletter attributed to I.R.E. the ownership of franchise properties which the company did not own. The newsletter stated that a 168-unit condominium project, which I.R.E. did own, was “sold out” at a net profit of “over $12,000 per unit.” In fact, the project was not sold out and the $12,000 figure was overstated. The Commission filed its complaint in this action on November 17, 1981. On November 18, 1981, the district court entered an order restraining and enjoining Blavin from trading any security that had previ ously been mentioned in “any analysis report or newsletter issued or distributed by him.” Yet, the district court found, Blavin sold approximately 115,740 shares of I.R.E. between November 18, 1981 and January 29, 1982. On the latter date, the district court entered a preliminary injunction that ordered Blavin to disgorge $179,000 and his remaining shares of I.R.E. stock. On September 20, 1982, the district court found Blavin guilty of criminal contempt for violating both the November 18, 1981 order and the January 29, 1982 order. On appeal, this Court affirmed that judgment. The district court granted summary judgment to the Commission on its claims against Blavin under the antifraud provisions of the Securities Exchange Act and the Investment Advisers Act. The district court also found that Blavin was operating as an investment adviser without having registered as required by the Investment Advisors Act, that failure to register is a strict liability violation, and that his affidavits raised only an estoppel defense that was legally inapplicable because estoppel does not apply against the Commission in enforcement actions. Finally, the district court entered a permanent injunction enjoining Blavin from future violations of the Acts, and ordered disgorgement of Blavin’s profits gained through securities law violations. On October 27, 1983, the district court appointed a retired state judge as escrow and distribution agent to implement and administer a disgorgement plan. The district court held a hearing on January 25, 1984, to consider the plan proposed by the agent and to hear argument regarding the amount of disgorgement. On February 1, 1984, the court entered an order establishing the amount of disgorgement and an order approving the escrow agent’s plan. The first order directs Blavin to disgorge all profits from trading in Alanda, Velvet and I.R.E. stock, and fees paid by subscribers to the Providence Investment Advisory newsletter. The final figure includes profits from Blavin’s own I.R.E. sales and I.R.E. sales by the court-appointed trustee. In calculating subscription fees, the court found that Blavin had 2,080 subscribers and charged a $30 annual subscription fee. Recognizing, however, that there may have been some rate of non-payment, the court reduced Blavin’s liability for fees by 10%. The court approved disgorgement plan requires the agent to mail notices to all known Providence subscribers, inviting them to submit claims for subscription fees and for trading losses in Alanda, Velvet or I.R.E. Under the plan, persons claiming trading losses must substantiate their claims by submitting records reflecting their purchase and sale of recommended securities. Thereafter, the agent is required to submit a report to the court, listing the claims and recommending which ones should be paid. The Commission may make additional or contrary recommendations. If the total amount of claims to be paid exceeds the amount of the disgorgement fund, claims will be paid on a pro rata basis; if the disgorgement fund exceeds the amount of claims to be paid, any remaining funds will revert to the United States Treasury. By the district court’s order, no payments may be made until the present appeals have been determined. II. This Court may only sustain a grant of summary judgment if the materials before the district court “ ‘show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1363 (8th Cir.1983) (quoting Scherr Construction Co. v. Greater Huron Development Corp., 700 F.2d 463, 465 (8th Cir. 1983)). All evidence must be viewed in the light most favorable to the non-moving party. Id. at 1364. Blavin alleges that his two affidavits created numerous issues of material fact that require a trial on the merits. When we view the affidavits as true, however, not a single genuine issue of material fact existed that the district court improperly determined on summary judgment. With regard to his antifraud violations, Blavin maintains that issues remain concerning the materiality of factual errors contained in the Providence newletters, concerning investors’ reliance upon any false and misleading statements, and concerning whether he acted with scienter. First, Blavin does not deny that his newsletters contained false and misleading statements. He denies that any inaccuracies are material, but does not provide analysis or evidence which would create a genuine issue that a reasonable investor would consider the misstatements or omissions important in making an investment decision. TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976); SEC v. Washington County Utility District, 676 F.2d 218, 225 (6th Cir.1982). Unrefuted evidence revealed that Blavin misstated the financial condition, solvency, and profitability of the companies his newsletter recommended. The materiality of such information “is not subject to serious challenge.” SEC v. Murphy, 626 F.2d 633, 653 (9th Cir.1980) (citations omitted). Blavin also emphasizes that his newsletters included a disclaimer that informed his readers that he could be trading in the stock about which he wrote, and that he did not guarantee the accuracy of his stock investment information. The district court found this disclaimer both “false and misleading,” SEC v. Blavin, 557 F.Supp. 1304, 1312 (E.D.Mich.1983), because it created the impression that Providence Investment Advisory was an investment company with numerous employees whose investments were not all known to management, when in fact Providence was a sole proprietorship of Blavin, who had invested in 25%, 10% and 10% of the publicly available stock of the companies he recommended. In this factual context, a disclaimer that the investment advisor “may” trade in recommended securities for its own account is itself a material misstatement. The effect of such large holdings on Blavin’s objectivity in making investment recommendations would be particularly important to his clients. See Zweig v. Hearst Corp., 594 F.2d 1261, 1266 (9th Cir.1979). No genuine issue of material fact existed concerning the materiality of misstatements and omissions contained in Providence newsletters. Secondly, whether or not investors detrimentally relied upon Blavin’s misstatements is not material to the present suit. Unlike private litigants seeking damages, the Commission is not required to prove that any investor actually relied on the misrepresentations or that the misrepresentations caused any investor to lose money. SEC v. Lum’s, Inc., 365 F.Supp. 1046, 1059 (S.D.N.Y.1973). Accord SEC v. North American Research & Development Corp., 424 F.2d 63, 84 (2d Cir.1970); Berko v. SEC, 316 F.2d 137, 143 (2d Cir.1963). Violations of the antifraud provisions of Sections 206 of the Investment Advisers Act also do not depend on actual injury to any client. SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 284, 11 L.Ed.2d 237 (1963); SEC v. C.R. Richmond & Co., 565 F.2d 1101, 1105 (9th Cir.1977). Third, even assuming the truth of Blavin’s assertions in his affidavits that he relied upon published information or information obtained from and approved by a representative of each company whose securities he recommended, there is no doubt that he acted with scienter. The district court found that Blavin acted recklessly by relying, without thorough investigation, upon the information that corporate representatives provided him. Recklessness is a sufficiently culpable state of mind to support a finding of liability under Section 10(b) and Rule 10b-5. Davis v. Avco Financial Services, Inc., 739 F.2d 1057, 1063 (6th Cir.1984); Ohio Drill & Tool Co. v. Johnson, 625 F.2d 738, 741 (6th Cir.1980). Recklessness is “ ‘highly unreasonable conduct which is an extreme departure from the standards of ordinary care.’ ” Ohio Drill, 625 F.2d at 741 (quoting Mansbach v. Prescott, Ball & Turben, 598 F.2d 1017, 1025 (6th Cir.1979)). As a fiduciary, the standard of care to which an investment advisor must adhere imposes “an affirma tive duty of ‘utmost good faith, and full and fair disclosure of all material facts/ as well as an affirmative obligation ‘to employ reasonable care to avoid misleading’ his clients.” Capital Gains, 375 U.S. at 194, 84 S.Ct. at 284 (citations omitted). At a minimum, Blavin recklessly failed to disclose that he was trading in stocks that his newsletter recommended, and recklessly failed to satisfy his professional duty to investigate the information upon which his recommendations were based. Although a finding of recklessness is sufficient to support a finding that the defendant acted with scienter, the district court went further and found that the pattern of behavior evidenced in the Commission’s exhibits in support of summary judgment created “an overwhelming presumption that this activity was intentional.” Blavin, 557 F.Supp. at 1312. We caution the district court that such language does not express the proper analysis in a summary judgment context. Nor was it necessary to reach the question of intent because Blavin’s recklessness satisfied the scienter requirement. Blavin also maintains that his affidavits raised genuine issues concerning estoppel defenses to his alleged violation of the Investment Advisers Act’s registration requirements. Section 203 of the Act prohibits any person from selling investment advice to the public without first registering with the Commission. 15 U.S.C. § 80b-3. Filing an application with the Commission does not authorize an applicant to operate as an investment advisor. 15 U.S.C. § 80b-3(c)(2). Blavin’s application was never granted, but rather was denied by an administrative law judge on March 21, 1983. That denial has since become final. First, Blavin’s affidavits are irrelevant because he violated the Investment Advisers Act by distributing the May newsletter without even having applied for registration. Blavin does not contend that he undertook this action in reliance on the statements or actions of Commission staff. In fact, in deposition testimony he admitted both that he had read the entire Act before beginning to publish Providence newsletters, and that he was “aware through there that it talked about registration.”
463874-11374	PECK, Senior Circuit Judge. The primary issue on appeal is the correctness of the trial court’s conclusion that claims five through eight of General Mo-top’ patent on a type of catalytic converter are invalid, under 35 U.S.C. § 103, for obviousness. General Motors (GM) sued Toyota alleging infringement of U.S. Patent number 3,852,041 (“the ’041 patent”). Toyota counterclaimed that the patent was invalid and sought a declaration of that invalidity, as well as attorneys’ fees. The district court’s pretrial order limited triable issues of infringement to claims five through eight of the patent in suit. As noted, the district court found these claims to be obvious in light of prior art. See General Motors Corp. v. Toyota Motor Co., Ltd., 467 F.Supp. 1142, 1177 (S.D.Ohio 1979). The district court’s findings of fact have been published and need not be recapitulated here. It is enough to note that GM, through three named inventors, patented an efficient catalytic converter with a basic configuration shown in the appendix to this opinion. GM contends that this converter meets the harsh requirements of heating rapidly to the 250° F temperature needed for catalyst efficiency, while remaining undamaged by the much higher temperatures (over 1500° F) to which a converter is sometimes exposed. Further, the converter is purportedly inexpensive to produce, does not allow exhaust fumes to bypass the cleansing catalyst, and does not leak exhaust gases to the atmosphere. There are three legal requisites to a valid patent: utility, novelty, and non-obviousness. The utility of an effective catalytic converter is not questioned in this case. The district court concluded, and we agree, that the patented device was novel. See 467 F.Supp. at 1170. If the district court erred in concluding that the patent in suit is obvious, then the patent is valid. In patent litigation, separating matters of fact from matters of law for purposes of appellate review is about as easy as unscrambling eggs. Concerning conclusions of obviousness under § 103, the Supreme Court has written that While the ultimate question of patent validity is one of law, A. & P. Tea Co. v. Supermarket Corp., supra, [340 U.S.] at 155 [71 S.Ct. at 131], the § 103 condition, which is but one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unresolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 693-94, 15 L.Ed.2d 545 (1966). This Court has interpreted this language to mean that the “several basic factual inquiries” are subject to the “clearly erroneous” standard of review of Fed.R.Civ.Pro. 52(a), while the ultimate conclusion of obviousness is one of law, with which this Court may freely disagree if the facts as found or the law as applied do not support the legal conclusion reached by the trial court. American Seating Co. v. National Seating Co., 586 F.2d 611, 619 (6th Cir. 1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1999, 60 L.Ed.2d 377 (1979); Reynolds Metals Co. v. Acorn Bldg. Components, Inc., 548 F.2d 155, 161 (6th Cir. 1977); Philips Indus., Inc. v. State Stove & Mfg. Co., 522 F.2d 1137, 1139 (6th Cir. 1975); Kolene Corp. v. Motor City Metal Treating, Inc., 440 F.2d 77, 81 (6th Cir.), cert. denied, 404 U.S. 886, 92 S.Ct. 203, 30 L.Ed.2d 169 (1971). See Universal Electric Co. v. A. O. Smith Corp., 643 F.2d 1240 at 1246 (6th Cir. 1981). But see Smith v. Acme General Corp., 614 F.2d 1086, 1092 (6th Cir. 1980), which might be interpreted as implying that district courts’ conclusions on obviousness of inventions must be affirmed if the courts’ preliminary fact-findings are not clearly erroneous. We disapprove such a reading. The district court, after making the factual inquiries noted in Graham, concluded “that a-person of ordinary skill in the art would have been induced by his penchant for streamlining to apply the teachings of British [patent number 632,013] to the CM-714 and make the top retainer plate of the CM-714 identical to the bottom retainer plate.” 467 F.Supp. at 1175. From this the district court concluded that the disputed claims of the patent in suit were invalid for obviousness. Id. at 1176-77. The difficult questions on appeal concern the propriety of considering the CM-714, a catalytic converter developed “in-house” at GM, to be disabling prior art. Although the matter of the “scope and content” of prior art is, under Graham, a factual inquiry, what may properly be considered prior art must in part be a question of law when issues of joint invention are raised. The district court took cognizance of this when it noted the following rules of law: If several persons collaborate to produce a joint invention, the conceptions and inventions of one of them will be assimilated into the joint invention only if those conceptions and inventions were generated by the collaborative effort which produced the joint invention. Therefore a conception or invention which is developed by a joint inventor before commencement of the collaborative effort never can be treated as the conception of a joint invention or as a joint invention because it is not the result of a collaborative effort to produce a joint invention. However, if the prior conception or invention is modified as a result of a collaborative effort, the modified conception or invention may become the conception of a joint invention or a joint invention. 467 F.Supp. at 1162-63 (footnotes omitted). It is this last sentence that best states the law of joint invention in this Circuit. See Vrooman v. Penhollow, 179 F. 296, 308 (6th Cir. 1910). The patented converter was developed at GM by at least three stages: STAGE “INVENTORS” AS FOUND BY TRIAL COURT CM-474 sketch Moore CM-714 Banyas, Jalbing, [Moore] ’014 patent Moore, Foster, Haggart (patentees) On appeal, GM argues, in essence, that there was only one invention, the patented converter, and that the two earlier steps in its development should be seen as merging into the final product. Put another way, GM contends that the patented converter is a “joint invention” of most or all of the above GM employees, and that an intermediate step by a subset of this inventive group should not be considered disabling prior art. Toyota argues that the three steps are discrete inventions because the first two steps did not result from the collaboration of the patentees. GM’s argument has the virtue of realism — it provides an accurate description of the manner of the patented converter’s invention. The ’041 converter’s creation was not at the hands of lone-eagle inventors who occasionally flocked together to exchange ideas, but was the product of a concerted effort underwritten and directed by GM. Toyota’s argument that the prior in-house development must be considered disabling prior art is based largely on Application of Land, 368 F.2d 866, 881 (C.C.P.A.1966), and Application of Bass, 474 F.2d 1276, 1288 (C.C.P.A.1973), where prior sole inventions of one joint inventor were held to be prior art to the later joint inventions. Neither Land nor Bass indicates that the prior inventions were in any way the product of concerted effort within a business entity. Under the facts of this case, where numerous “inventors” all worked under the aegis of one employer toward a common goal, it is appropriate to define the concept of joint invention broadly. It is not realistic to require in such circumstances that joint inventors work side-by-side, and that each step in the inventive process be taken by all the firm’s collaborators. Cf. Hobbs v. United States Atomic Energy Commission, 451 F.2d 849, 865 (5th Cir. 1971) (per Wisdom, J.): Persons employed, as much as employers, are entitled to their own independent inventions, but where the employer has conceived the plan of an invention and is engaged in experiments to perfect it, no suggestions from an employe, not amounting to a new method or arrangement, which, in itself is a complete invention, is sufficient to deprive the employer of the exclusive property in the perfected improvement. But where the suggestions go to make up a complete and perfect machine, embracing the substance of all that is embodied in the patent subsequently issued to the party to whom the suggestions were made, the patent is invalid, because the real invention or discovery belonged to another. For the reasons outlined above, the CM-714 should not be seen as a “complete invention” sufficient to deprive the named inventors (or GM as their assignee) of the “exclusive property in the perfected improvement.” Toyota’s response to GM’s joint invention arguments amounts to no more than raising as a defense to GM’s infringement allegation the non-joinder of Banyas and Jalbing as coinventors in the patent application. Such defenses are highly technical; courts disfavor these defenses on the strength of the legal presumption that the inventors named in a patent are the true ones. See Jamesbury Corp. v. United States, 518 F.2d 1384, 1395 (Ct.Cl.1975); Garrett Corp. v. United States, 422 F.2d 874, 880-81 (Ct.Cl.), cert. denied, 400 U.S. 951, 91 S.Ct. 242, 27 L.Ed.2d 257 (1970); Shields v. Halliburton Co., 493 F.Supp. 1376, 1385 (W.D.La.1980). This presumption is only overcome by clear and convincing evidence. Garrett, supra, 422 F.2d at 880-81; Shields, supra, 493 F.Supp. at 1385. Toyota has not produced clear and convincing evidence that the contributions of the unnamed “inventors” were any more than improvements on Moore’s concept. Toyota has argued against an expansive definition of “joint invention” in the context of corporate in-house developments, stating that such a reading would bring an “elasticity” to statutory patent law that Congress did not put there. There are two answers to this argument: first, 35 U.S.C. § 103, the statutory ground for invalidating the patent in suit, is but a codification of prior judicial practice. Graham, supra, 383 U.S. at 3-4, 86 S.Ct. at 686-87. In such circumstances, it would be mindless to reach irrational or inequitable results out of supposed fidelity to statutory language. Second, § 103 ends with the sentence “[pjatentability shall not be negatived by the manner in which the invention was made.” Toyota would have us create extra barriers to the patenting of “in-house” developments. An alternative ground for holding claims five through eight of GM’s patent valid is that the district court erred in holding that GM’s sales of the CM-714 were beyond the “experimental use” exception to the rule that sale of an invention is public disclosure of that invention. Certainly the CM-714 cannot be said to have rendered the patented converter obvious if the CM-714 was effectively disclosed only to the coinventors of the patent.
10514751-29648	JERRY E. SMITH, Circuit Judge: The facts of this case are set forth in Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286 (5th Cir.1992) (“Royal I ”). Following remand in Royal I, the district court entered final judgment against defendant Quinn-L Capital Corp. (“Quinn-L”), granting summary judgment in favor of plaintiffs Royal Insurance Company of America and Royal Lloyds of Texas (collectively, “Royal”) and entering a permanent injunction that barred Quinn-L and the defendant investors from relitigating any of the claims or issues decided in either this declaratory judgment action or the first declaratory judgment action. I. Quinn-L argues that the federal courts do not have jurisdiction for three reasons. First, Quinn-L contends that the district court did not have ancillary jurisdiction over the affirmative defenses of waiver, estoppel, and negligence. Second, Quinn-L contends that no diversity jurisdiction exists. Third, Quinn-L asserts that the district court had no jurisdiction to grant summary judgment while an appeal was pending before this court. A. In Royal I, we recognized that the district court had ancillary jurisdiction to issue an anti-suit injunction to protect or effectuate its prior judgments. 960 F.2d at 1292. Quinn-L argues that the district court lacked jurisdiction to grant summary judgment on the waiver, estoppel, and negligence claims because those claims are outside the scope of the first declaratory judgment action. Royal contends that we held in the first action that the district court had ancillary jurisdiction over the entire controversy and that this holding is law of the case. Before addressing the merits of the jurisdictional argument, we must decide whether law of the case principles apply to appeals of preliminary injunctions. We decide that issue here because Royal relies upon the law of the case doctrine in addressing numerous points of error raised by Quinn-L. Quinn-L argues that the doctrine has no application in preliminary injunction proceedings. The law of the case doctrine was developed to “maintain consistency and avoid [needless] reconsideration of matters once decided during the course of a single continuing lawsuit.” 18 Charles A. Wright et al., Federal Practice and Procedure § 4478, at 788 (1981). “These rules do not involve preclusion by final judgment; instead, they regulate judicial affairs before final judgment.” Id. Under this doctrine, we will follow a prior decision of this court without reexamination in a subsequent appeal unless “(i) the evidence on a subsequent trial was substantially different, (ii) controlling authority has since made a contrary decision of the law applicable to such issues, or (iii) the decision was clearly erroneous and would work manifest injustice.” North Miss. Communications v. Jones, 951 F.2d 652, 656 (5th Cir.), cert. denied, — U.S. ——, 113 S.Ct. 184, 121 L.Ed.2d 129 (1992). The doctrine extends to those issues “decided by necessary implication as well as those decided explicitly.” Dickinson v. Auto Ctr. Mfg. Co., 733 F.2d 1092, 1098 (5th Cir.1983) (citation, quotation marks, and emphasis omitted). We disagree with Quinn-L’s suggestion that law of the case principles have no application to an interlocutory appeal of the granting of a preliminary injunction. As in any other interlocutory appeal, our decision constitutes law of the case. 1B James W. Moore et al., MooRe’s Federal Practice ¶ 0.404[4. — 7], at II-37 (2d ed. 1993). Obviously, the doctrine extends only to matters actually decided. Id. at 11-37 to 11-38. As to decisions of law, the interlocutory appeal will establish law of the case. As to factual determinations, however, an interlocutory appeal of a preliminary injunction often will not establish law of the case. To obtain a preliminary injunction, the movant need only show a substantial likelihood of success on the merits. We review a district court’s findings of fact supporting the grant of a preliminary injunction for clear error. Royal I, 960 F.2d at 1297. Because the standard of review for factual determinations on direct appeal is higher than the standard applied during an interlocutory appeal of a preliminary injunction, the interlocutory appeal normally will not establish law of the case on factual matters. Contrary to Quinn-L’s suggestion, however, the reason this result does not obtain is not because law of the case principles are inapplicable. Rather, the lesser standard of review applied during an appeal of a preliminary injunction necessarily means that the factual issues differ from those on direct appeal. Such a difference often will result only from the higher standard of review applied during the direct appeal. With this background in mind, we now address Royal’s contentions that we previously held that the district court had ancillary jurisdiction over the entire controversy and that this alleged holding is law of the case. In Royal I, we held that the district court has “ancillary jurisdiction over the present controversy.” 960 F.2d at 1292. Read in context, this means that we held only that the district court had ancillary jurisdiction to issue an anti-suit injunction under the “protect or effectuate its judgments” exception to the Anti-Injunction Act (the “Act”), 28 U.S.C. § 2283 (1988). 960 F.2d at 1299. We also held that the district court should have limited the scope of that injunction to exclude the claims that arose after the first declaratory judgment action. Id. In other words, we held that the district court had ancillary jurisdiction to issue an injunction but that the Act bars a portion of the injunction. We did not have to decide, and did not decide, the jurisdictional issue as to the claims of waiver, estoppel, and negligence, as Quinn-L obtained a reversal on the merits as to those claims. Here, the jurisdictional issue is squarely presented, and we must decide it. We conclude that the district court did not have ancillary jurisdiction to address the waiver, estoppel, and negligence claims. As noted above, the district court has ancillary jurisdiction to protect or effectuate its judgments. This jurisdiction extends no further than necessary to achieve that purpose. But “[wjhile ... the ... Act is not a grant of jurisdiction, no independent basis of jurisdiction is required for a federal court to entertain an application to enjoin relitigation in state court. The jurisdiction that the federal court had when it entered its original judgment is enough to support its issuance of an injunction.” Mooney Aircraft Corp. v. Foster (In re Mooney Aircraft), 730 F.2d 367, 374 (5th Cir.1984) (citing 17 Wright et al., supra, § 4276, at 345 (1978)). In Mooney, we noted that where a bankruptcy court seeks to enjoin claims that were not encompassed in a prior judgment, no ancillary jurisdiction exists. 730 F.2d at 374. Under Mooney, the district court must have an independent basis for jurisdiction over Quinn-L’s waiver, estoppel, and negligence claims, as those claims were not raised in the prior declaratory judgment proceeding and are not barred by that proceeding under res judicata principles. Thus, we agree with Quinn-L that ancillary jurisdiction extends no further than the scope of the first judgment. The basis for allowing the federal courts to exercise ancillary jurisdiction in issuing anti-suit injunctions is to allow them to protect their prior judgments; where new claims are involved, the policy basis for ancillary jurisdiction disappears. We therefore conclude that ancillary jurisdiction to issue anti-suit injunctions normally will not allow a federal court to exercise jurisdiction over new claims not addressed in the judgment the court is seeking to protect. B. Next, we must decide whether diversity jurisdiction exists in this case. Royal is an unincorporated association that sells insurance under a so-called “Lloyd’s plan.” For purposes of ascertaining whether the federal courts have diversity jurisdiction, an unincorporated association is considered to have the citizenship of its members. Carden v. Arkoma Assocs., 494 U.S. 185, 195-96, 110 S.Ct. 1015, 1021, 108 L.Ed.2d 157 (1990). This case turns on the question of who constitutes a “member” of a Lloyd’s plan insurance association. None of the underwriters is a citizen of Texas, while at least one attorney in fact is a resident. A Lloyd’s plan insurer consists of a group of underwriters who join together to issue insurance through an attorney in fact or other representative. Tex.Ins.Code Ann. arts. 18.01-02 (West 1981). Ordinarily, such insurers provide insurance for risks for which American insurance companies otherwise would not issue policies. ROBERT E. Keeton & Alan I. Widiss, Insuranoe Law § 2.1(a)(1) (West 1988) (practitioner’s ed.). Under the Lloyd’s plan, the insured typically obtains insurance from one or more members of the Lloyd’s group; each member accepts responsibility for a portion of the risk, and liability among the members is several but not joint. Jones v. Hollywood Style Shop, 62 S.W.2d 167, 167 (Tex.Civ.App. — San Antonio 1933, no writ); Keeton & Widiss, supra, § 2.1(a)(1). In other words, the individual member is responsible only for the portion of the risk that it chooses to insure. The Lloyd’s group underwriters appoint an attorney' in fact to act for them under a power of attorney. Tex.Ins.Code Ann. art. 18.01-1 (West 1981). The attorney in fact has the power to issue policies of insurance, “authorized by and acting for such underwriters.... ” Id. The attorney in fact is “in effect the chief executive and managing agent of the enterprise.... ” Grace v. Rahlfs, 508 S.W.2d 158, 161 (Tex.Civ.App.— El Paso 1974, writ ref. n.r.e.). Quinn-L contends that the attorney in fact is akin to a general partner of a general partnership and that the underwriters are akin to limited partners. We do not find the analogy relevant to our inquiry, as the degree of control exercised by an individual over an entity is irrelevant to the question of whether he is a member of the entity. Carden, 494 U.S. at 192, 110 S.Ct. at 1019. Analogies to other types of state-created entities likewise are not especially helpful. The only relevant inquiry is the identification of the members of this particular entity. Normally, we should examine an entity’s definition of “member.” Here, such an inquiry is unnecessary, as the relationship of the attorney in fact to a Lloyd’s group is described by statute. We agree with Royal that the attorney in fact is not a member of a Lloyd’s group insurance association; only underwriters are members of the organization. As noted above, the attorney in fact acts as an agent for the Lloyd’s group. Grace, 508 S.W.2d at 161. Under Texas law, the attorney in fact must be authorized by the underwriters to execute insurance polices and acts for those underwriters by so doing. Tex.Ins.Code Ann. art. 18.01-1 (West 1981). Moreover, the attorney acts under powers of attorney from the underwriters, id., who also dictate, in the articles of agreement, where the principal office of all attorneys will be, id. art. 18.02. Thus, for purposes of determining whether diversity jurisdiction exists, we conclude that the members of a Lloyd’s group are the underwriters alone. Because attorneys in fact are not members of Lloyd’s plan insurance associations, we look only to the citizenship of the underwriters to determine whether diversity jurisdiction exists. Here, because none of the underwriters is a Texas citizen, complete diversity exists. C. Finally, we must consider Quinn-L’s contention that the district court lacked jurisdiction to grant summary judgment while the interlocutory appeal in Royal I was pending. A district court loses jurisdiction over all matters validly before a court of appeals. Dayton Indep. Sch. Dist. v. U.S. Mineral Prods. Co., 906 F.2d 1059, 1063 (5th Cir.1990). The district court does not have the power to “alter the status of the ease as it rests before the Court of Appeals.” Id. Quinn-L argues that the summary judgment determined a matter within our jurisdiction. This ease does not fall within the scope of Dayton, a case in which the district court made a ruling that mooted an interlocutory appeal. In other words, the district court’s action interfered with our jurisdiction to decide the issues before us. Here, the district court’s continuing jurisdiction during the pending interlocutory appeal did not interfere with our ability to decide the issues presented in Royal I. Accordingly, the district court had jurisdiction to enter summary judgment. II. Quinn-L argues that the declaratory judgment and permanent injunction must be vacated because they violate the Act, which provides as follows: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283 (1988). The Act is “an absolute prohibition against enjoining state court proceedings unless the injunction falls within one of [the] three specifically defined exceptions.” Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 286, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1970). The Court also has warned that “the exceptions should not be enlarged by loose statutory construction.” Id. at 287, 90 S.Ct. at 1743. Here, the district court rendered a declaratory judgment on the waiver, negligence, and estoppel claims and enjoined defendants from proceeding therewith in state court. On its face, then, this judgment falls squarely within the “protect or effectuate its judgments” exception to the Act. We have stated, however, that “[i]f an injunction would be barred by § 2283, this should also bar the issuance of a declaratory judgment that would have the same effect as an injunction.” Texas Employers’ Ins. Ass’n v. Jackson, 862 F.2d 491, 506 (5th Cir.1988) (en banc) (citation and quotation marks omitted), cert. denied, 490 U.S. 1035, 109 S.Ct. 1932, 104 L.Ed.2d 404 (1989). Quinn-L argues that because we held in Royal I that the Act barred the preliminary injunction as to the waiver, estoppel, and negligence claims, Jackson necessarily bars the declaratory judgment and permanent injunction on those claims. In Jackson, the plaintiff sought relief under the Longshore and Harbor Workers’ Compensation Act (LHWCA) using the normal administrative process. Before that pro cess was complete, he sued his employer’s LHWCA insurer in state court, alleging, inter alia, deceptive trade practices, fraud, bad faith, and intentional infliction of emotional distress. The insurer filed a plea in bar asserting LHWCA preemption. The state court denied the petition, and extensive discovery was conducted. Later, the insurer filed a declaratory judgment action in federal court seeking an injunction against prosecution of the state court suit. The district court granted the injunction on the basis of the “protect or effectuate its judgments” exception to the Act. The panel reversed and barred the grant of injunctive relief but allowed the declaratory judgment to stand. Texas Employers’ Ins. Ass’n v. Jackson, 820 F.2d 1406 (5th Cir.1987). The en banc court held that the declaratory judgment was invalid as well, because it was “plain that the only purpose and effect of TEIA’s federal suit was to defeat Jackson’s state suit against it and to, in effect, overrule the state trial court’s denial of TEIA’s plea in bar.” 862 F.2d at 491. Expressing our concern over the apparent attempt to interfere with a state proceeding, we observed that “[t]o allow declaratory relief in these circumstances would be to transform section 2283 from a pillar of federalism reflecting the fundamental constitutional independence of the states and their courts, to an anachronistic, minor technicality, easily avoided by mere nomenclature or procedural sleight of hand.” Id. As we noted above, we stated in Jackson that if “an injunction would be barred by § 2283, this should also bar the issuance of a declaratory judgment that would have the same effect as an injunction.” 862 F.2d at 506. Our inquiry here then depends upon the resolution of two issues. First, we must decide whether the Act would prevent the federal courts from issuing an injunction under the facts of this case. If it would not, then Jackson does not apply. Second, if an injunction would be barred, we must decide whether Jackson is distinguishable. To decide whether the Act would bar an injunction on the waiver, estoppel, and negligence claims, we must address a question that is res nova in this circuit. Quinn-L injected these claims into the federal proceedings before it had filed any state court actions on these claims. In other words, Royal filed a declaratory judgment action seeking an anti-suit injunction prior to the commencement of any state proceedings. Before a state court suit is filed, the Act has no application, and a federal court may enjoin parties from ever filing suit in state court. Jackson, 862 F.2d at 507 (citing 17 Wright et al., supra, § 4222, at 506-07 (1988)). A circuit split exists on the question of whether the Act has any application where the injunction is sought before a state suit has been filed but is not issued until after a state suit was filed. Three circuits have adopted the rule that the Act does not apply where the federal suit is filed first. See Barancik v. Investors Funding Corp., 489 F.2d 933, 937 (7th Cir.1973); National City Lines v. LLC Corp., 687 F.2d 1122, 1127 (8th Cir.1982); Hyde Park Partners, L.P. v. Connolly, 839 F.2d 837, 842 n. 6 (1st Cir.1988). Two circuits, on the other hand, have held that the Act should be applied to the case as it stands, regardless of the order in which the actions were filed. Roth v. Bank of the Commonwealth, 583 F.2d 527, 533 (6th Cir.1978), cert. dismissed, 442 U.S. 925, 99 S.Ct. 2852, 61 L.Ed.2d 292 (1979); see also Standard Microsystems Corp. v. Texas Instruments, 916 F.2d 58, 61-62 (2d Cir.1990) (disapproving of the reasoning in Barancik)). The leading case holding that the Act does not apply when the federal suit is filed first is Barancik, in which the court reasoned that the Act does not apply because the applicability of the Act should be determined at the time the federal court’s injunctive powers are invoked. 489 F.2d at 937. The court was concerned that otherwise a litigant could defeat a well-founded motion for an anti-suit injunction by filing a suit in state court. Id. The thrust of this reasoning is weakened, however, by the fact that a federal district court often issues a temporary restraining order (TRO) against filing a state court suit while it is considering a motion for a preliminary injunction seeking such relief. Such an action goes a long way to avoid the danger raised by the Barancik court. The Barancik court felt that using TRO’s would encourage the liberal granting of the kind of protective orders that the statute was designed to prevent. We also disagree with this analysis, which assumes the district coui't will decide the issue wrongly and that granting a TRO will prejudice the decision on the merits. Such logic proves too much, as no TRO would be justified under this reasoning. Although the issuance of a TRO should not be automatic and is subject to, inter alia, the requirements of Fed.R.CivP. 65(b), the TRO is a useful tool where appropriate. The Barancik court, moreover, held that the Act does not apply where the federal suit is filed first. In this class of cases, then, Barancik eviscerates the statutory bar against anti-suit injunctions. The Barancik court also expressed concern that the court might have to take action without notice to the opposing party. We find this reasoning to be questionable as well, as it assumes that district courts will ignore the requirements of rule 65(b). We subscribe to what we think is the better view — that the Act applies regardless of when the federal and state suits were filed. The plain language of the statute contains no exception for a situation in which the federal suit was filed first. As the Roth court notes, 583 F.2d at 533, the Supreme Court has held that the statute provides an absolute prohibition on injunctions unless one of the three exceptions applies. The Court repeatedly has emphasized that those exceptions are exclusive and that federal courts may not craft new ones. Any doubts should be resolved in favor of denying the injunction. Roth, 583 F.2d at 533 (citing Atlantic Coast Line R.R., 398 U.S. at 286-87, 90 S.Ct. at 1743). Given the Court’s consistently narrow interpretation of the Act, the presumption in favor of denying an injunction, and the absence of language in the statute suggesting that its application depends upon the time of filing of the state suit, we think Roth provides the better analysis. We conclude, therefore, that the Act applies whenever a state suit is pending, regardless of when it was filed. Because the Act applies even when the federal suit is filed first, we now must address Quinn-L’s contention that our holding in Jackson mandates reversal here. Royal argues that because the federal suit was filed first in this case, Jackson is distinguishable and hence is not controlling here. To resolve this question, we return to policy concerns underlying our decision in Jackson. At oral argument, the parties characterized Jackson as a new type of abstention. We agree with this characterization, as no language in the Act or the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1982), specifically commands the result in Jackson. As we recently recognized, our decision in Jackson was based upon principles of federalism and comity. Travelers Ins. Co. v. Louisiana Farm Bureau Fed’n, 996 F.2d 774, 776 (5th Cir.1993). In Jackson, the federal suit offended principles of comity and federalism because the plaintiff sought an overruling of a state court decision on LHWCA preemption. 862 F.2d at 505. Here, Royal has not attempted to interfere with the state courts. Instead, it sued to enforce a prior federal judgment, and Quinn-L injected new state claims into the federal action. Royal sought relief in federal court nearly six months before the state actions against Royal were filed. Moreover, significant proceedings took place during that time, including the filing of Royal’s original and amended complaints, the filing of Quinn-L’s answer, and the district court’s consideration and denial of two motions for dismissal based on the lack of jurisdiction. The only interference results from the potential for a race to judgment. Where the federal case is filed substantially prior to the state ease, and significant proceedings have taken place in the federal case, we perceive little, if any, threat to our traditions of comity and federalism. See Moses H. Cone Hosp., 460 U.S. at 21-22, 103 S.Ct. at 940 (fact that substantial proceedings have occurred is a relevant factor to consider in deciding whether to abstain). In fact, by filing a state suit after a federal action has been filed, the state plaintiff can be viewed as attempting to use the state courts to interfere with the jurisdiction of the federal courts. We agree with Royal that if we were to hold that Jackson applied in this scenario, litigants could use Jackson as a sword, rather than a shield, defeating federal jurisdiction merely by filing a state court action. Neither Jackson nor the concerns underlying it mandate such a result. Citing Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 238, 104 S.Ct. 2321, 2328, 81 L.Ed.2d 186 (1984), Quinn-L argues that abstention doctrines apply regardless of when the state suit is filed. See also Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2292, 45 L.Ed.2d 223 (1975). We find this contention flawed for two reasons. First, Quinn-L mischaracterizes Midkiff. There, the Court noted that if substantial proceedings have occurred in federal court, that court need not abstain. 467 U.S. at 238, 104 S.Ct. at 2328. In other words, in some cases the date on which the state court suit was filed can make a difference in the application of the abstention doctrine. Where substantial proceedings have begun, the federal court is allowed to proceed to prevent the state from employing abstention as a means to delay litigation. Second, we find other types of abstention distinguishable. For example, in the case of Younger abstention, the Court was concerned with federal court interference with a state’s ability to function. By blocking proceedings involving state governments, federal courts could interfere unduly with the state’s ability to govern. These federalism concerns are implicated no matter when the federal and state suits are filed: A state’s ability to conduct proceedings is compromised if the officials conducting those proceedings are involved in discovery in federal court. In Jackson, on the other hand, the filing of the federal suit demonstrated an attempt to overrule a decision by a state trial court. Federalism and comity concerns arose only because a litigant attempted to use the federal courts to interfere with ongoing state court proceedings. Thus, while the time of filing of the federal and state suits is irrelevant to the application of the Act, it can be an important consideration in determining whether to abstain under Jackson. We conclude, however, that federal courts need not abstain from declaratory judgment actions under Jackson where the federal suit is filed substantially prior to any state suits, significant proceedings have taken place in the federal suit, and the federal suit has neither the purpose nor the effect of overturning a previous state court ruling. We recently characterized the rule in Jackson as applying only where “a declaratory defen dant has 'previously filed a cause of action in state court against the declaratory plaintiff.” Travelers, 996 F.2d at 776 (emphasis added). Even where the state court suit is filed first, a class of exceptions to the Jackson rule exists. Id. at 776-79. Our decision today, declining to extend the rule to a case in which the federal suit has been the subject of significant proceedings before the state suit is even filed, comports with the policy concerns that prompted our decision in Jackson. III. Quinn-L next contends that Royal was collaterally estopped from pursuing the second declaratory judgment action because it originally sought to reopen the first declaratory judgment action by fifing a motion on January 3, 1990. In the February 28, 1990, order denying the request to reopen the first action, the district court stated the following: “Because this case has been closed and the issues may be litigated in the current state court litigation, the Court DENIES the Motion.” Quinn-L argues that this order is determinative with respect to the forum in which the coverage issues are to be decided. Quinn-L cites New Orleans Pub. Serv. Co. v. Majoue, 802 F.2d 166 (5th Cir.1986), for that proposition. In Majoue, the defendant removed a state court suit, but the district court remanded it. The defendant later filed a federal declaratory action directed to the state claims. We stated that the original order remanding the case was “res judicata as to the forum.” Id. at 168. We find Majoue distinguishable. A decision to remand to state court may not be appealed, and the district court may not later change its mind. Id. at 167. In Majoue, we relied upon the language of 28 U.S.C. § 1447(d) (1988), which states that a remand order is not reviewable on appeal or otherwise. By fifing a declaratory judgment action, the party was attempting to attack the district court’s remand order collaterally, an action that is prohibited by statute. Here, on the other hand, the declaratory judgment is not an attempt to attack the prior order collaterally, nor does any statute prohibit the action. Moreover, as Royal argues, Majoue involved an attempt to evade a final judgment. Here there is no final judgment that could have any res judicata effect. We reason, accordingly, that the February 28, 1990, order does not collaterally estop Royal from pursuing this matter. IV. We next address Quinn-L’s contention that the declaratory judgment and injunction must be vacated because the investors were not parties to the first declaratory judgment and because Royal I is not preclusive on the issue of coverage for negligently caused mental anguish and bodily injury. Royal argues that our decision in Royal I is law of the case as to both issues. Quinn-L disagrees and also argues that our decision was clearly erroneous. First, Quinn-L claims that the investors are not bound by the first declaratory judgment because they were not in privity with Quinn-L. We disagree with Royal’s contention that Royal I establishes as law of the case that the investors were in privity with Quinn-L. As we noted in Royal I, the issue of privity is a question of fact for the trial court. 960 F.2d at 1297. Because the appeal was interlocutory, we reviewed that finding only for clear error. Id. Here, on the other hand, we review the district court’s findings de novo, because that court has rendered summary judgment. As we discussed above, law of the case may not be established on issues of fact where a later, appeal involves a more demanding standard of review. Reviewing the district court’s decision de novo, we affirm. There is no material issue of fact as to privity, and the district court properly held that Quinn-L is the investors’ virtual representative.
1322693-8277	GODBOLD, Circuit Judge: Melancon, alleging that his work aboard the M/V SNIPE from September 7, 1968 to January 1969 aggravated or caused his silicosis or pneumonoconiosis condition, sued his employer Coating Specialists, Inc. (Coating) and its insurer Insurance Company of North America (INA), for damages under the Jones Act and maintenance under the general maritime law. The District Court entered orders granting summary judgment for INA on the ground of lack of coverage and denying Coating’s subsequent motion for leave to file a third-party complaint against INA. Coating appealed from both orders. We dismissed for lack of jurisdiction because the District Court had not accompanied its summary judgment for INA with a F.R.Civ.P. 54(b) certificate and, because, assuming that the denial of Coating’s motion to file a third-party complaint might be appealable if certified under R. 54(b), it was clearly not appealable without such certification. Melancon v. Ins. Co. of North America, 476 F.2d 594 (CA5 1973). Subsequently the District Court expressly determined that there was no just reason to delay and directed that final judgment for INA be entered upon the two orders. Coating appeals from this judgment. We reverse. On the appeal from the summary judgment, the record must be viewed in the light most favorable to Coating, which opposed the motion. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458, 464 (1962); Pogue v. Great A&P Tea Co., 242 F.2d 575, 576 (CA5, 1957). INA bears the burden of showing both that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. F.R.Civ.P. 56(c) and Steed v. Central of Georgia Ry. Co., 477 F.2d 1303 (CA5 1973). The insurance agreement between INA and Coating provided: This policy applies only to injury (1) by accident occurring during the policy period, or (2) by disease caused or aggravated by exposure of which the last day of the last exposure, in the employment of the insured, to conditions causing the disease occurs during the policy period. INA’s theory of lack of coverage is first that there was no “accident” during the policy period, and, second, that the last day of the exposure to conditions causing or aggravating plaintiff’s disease occurred after its policy had terminated. To establish factual bases for summary judgment in its favor, INA presented and relied upon the following: (1) M el-ancon’s allegations in his complaint that he was employed as a seaman by Coating aboard the M/V SNIPE from about September 7, 1968, to January, 1969; that his duties included filling sand pots in the vessel’s hatch with sand; that he was exposed to particles of foreign matter created or thrown in the air by sandblasting activities Coating conducted on the oil platforms to which the SNIPE was moored; and that “the performance of his duties [for Coating aboard the SNIPE] caused or aggravated the disease of silicosis or pneumonoconiosis which now totally and permanently disables complainant from pursuing any gainful employment.” (2) The policy dates which appear on the face of the insurance agreement (April 24, 1968 to April 24, 1969) and the uneontroverted affidavit of an INA underwriter stating that the policy expired on April 24, 1969, and was not renewed. (3) The uncontroverted affidavit of Coating’s general counsel admitting that Melancon worked for Coating from September 4, 1968, through July 3, 1969. (4) Melan-con’s testimony by deposition which INA claims establishes without contradiction that when he worked as a “helper” for Coating on shore after the April 24, 1969, termination date of the policy his job entailed sandblasting, filling of sand pots, cleaning and painting and that he never went as long as three weeks without performing all of these jobs, including sandblasting. Coating presented no controverting evidentiary documents in opposition to INA’s motion. It relied instead upon Melancon’s deposition and also filed with the court memoranda concerning the proper construction to be given the policy provision quoted above and the arguable characterization of silicosis as an “accident” not a “disease”. The District Court made no findings and gave no reasons for granting INA summary judgment. The poli cy would cover Melancon’s' alleged silicosis or pneumonoconiosis if that condition were determined to be either (1) an injury “by accident occurring during the policy period” or (2) an injury “by disease” caused or aggravated by exposure to conditions causing the disease, the last day of such exposure occurring during the policy period. Since the court granted summary judgment, we must assume that it considered there were no material disputed facts pertaining to either basis of coverage and that under this state of the facts the principles of law governing both bases excluded coverage. The record before the Court establishes without contradiction that Melancon was exposed to sandblasting in his employment for Coating after the termination date of the INA policy. That record, however, does not establish without contradiction that such exposure was to conditions causing or aggravating the silicosis or pneumonoconiosis condition Melancon alleges. INA has not met the burden resting on it to show that there is no genuine issue of fact material to its alleged direct liability to Melancon as the insurer of the allegedly negligent employer. To the contrary, the Melan-con deposition creates at least one genuine issue of fact material to INA’s alleged liability. Melancon testified that when he had been exposed to sandblasting on shore, where he worked after the policy’s termination date, he wore a canvas hood over his head. But he testified that when he had been exposed to sandblasting on board the M/Y SNIPE, where he worked during the policy period, no such hood was available even though he asked for one. At least one court has recognized that the use or non-use of a mask or hood is a pertinent factor in determining the etiology of the condition known as silicosis. See Svoboda v. Mandler, 133 Neb. 433, 275 N.W. 599, 600 (1937). Whether the silicosis or pneumonoconiosis Melancon alleges was caused in fact or aggravated by his exposure to sandblasting on shore after the policy’s termination date when he wore a hood or was caused or aggravated solely by his exposure to sandblasting aboard the M./V SNIPE during the policy period when he wore no hood is an issue of fact which remains to be settled. This court makes no determination or intimation as to this question. Since the unsettled question of fact is material to both bases of coverage provided by the policy, we need not address ourselves to the question of whether under the applicable law silicosis (or pneu-monoconiosis) is an accident or a disease. The judgment for INA is reversed and the case remanded for trial on its merits. We assume that the court refused to permit Coating to file a third-party complaint against INA because it had concluded that there was no coverage and that this placed INA outside the language of Rule 14(a), F.R.Civ.P., one who “is or might be liable.” Our disposition of the summary judgment in favor of INA will require the District Court to reconsider its ruling on the third-party complaint and for that purpose the judgment refusing Coating the right to file such a complaint must be vacated. Reversed in part, vacated in part, and remanded for further proceedings. . Melancon’s complaint named another of Coating’s insurers, State Automobile and Casualty Underwriters, as defendant. Summary judgment in this insurer’s favor is not attacked on this appeal. . The complaint Coating sought to file alleged that although INA had an insurance agreement with Coating which covered the injury claimed by Melancon and which obligated INA to defend and indemnify Coating, INA had refused to defend Coating and to make any payments to Melan-con which might become due. Coating prayed for recovery over from INA of any sums which it might have to pay Melan-con and of the costs of defense. . Documents presented on the motion for summary judgment show an earlier date for termination of employment aboard the SNIPE, but the difference is not material to this appeal.
4052971-28320	MANION, Circuit Judge. After her employer Enterprise Recovery Systems (“ERS”) fired her, Rhonda Salmerón brought this qui tam action on behalf of the United States against ERS alleging that it committed fraud in its student loan debt collection practices. Salmerón subsequently amended her complaint three times to add USA Funds, Inc.; USA Group Guarantee Services, Inc.; USA Servicing Corp.; Sallie Mae, Inc.; Sallie Mae Servicing, L.P.; and Scott Nicholson as defendants. During the lawsuit’s three-year sojourn in the district court, Salmeron’s attorney, Jorge Sanchez, engaged in what the judge described as a “virtually unbroken pattern of dilatory and irresponsible conduct,” consistently missing filing deadlines and failing to appear at status conferences. Fed up with Sanchez’s repeated flouting of the court’s rules, the district court dismissed the suit sua sponte. Though ultimately persuaded to reinstate the action, the district court issued a “final warning” to Sanchez that future misconduct would not be tolerated. Only a short time later, however, Sanchez breached an oral agreement he had with opposing counsel and leaked a document obtained through discovery to three separate sources. Upon finding the document posted on an Internet website, the defendants moved to dismiss the suit as a sanction for the unauthorized disclosure. The district court granted the motion, finding the leak “willful” and “inexcusable.” Salmerón appeals, arguing that the punishment does not fit the offending conduct. We affirm. I. In its opinion and order dismissing the suit, the district court extensively chronicled the transgressions of Salmeron’s counsel, Jorge Sanchez, during the course of this litigation. The day after the deadline to respond to ERS’s motion to dismiss, Sanchez, citing his workload and personal issues as the reasons for the delay, filed a motion for permission to file the response late, which the district court granted. A few months later, Sanchez missed the deadline to file a response to USA Funds’s motion to dismiss. He again cited workload and family obligations and asked the court to excuse the late filing, which it did. A few months after that late filing, Sanchez failed to timely respond to USA Funds’s request for production of documents and interrogatories; the responses to the interrogatories were not submitted until more than two and a half months after they were due. Sanchez also failed to appear at a scheduled status conference. Next, when responses to ERS’s interrogatories and requests for production were already several weeks overdue, Sanchez reneged on a promise that he would provide the information. The court had to order Sanchez to comply. Sanchez’s dilatory conduct continued past the lawsuit’s second anniversary. Nine days after Salmeron’s response to ERS’s motion to dismiss the second amended complaint'was due, rather than belatedly attempting to respond, Sanchez instead filed a motion for leave to file a third amended complaint. The court applied ERS’s motion to the third amended complaint and set a new deadline for Sanchez’s response. True to form, Sanchez missed that deadline. Again citing his workload, Sanchez moved for leave to file a response a week after the deadline had passed. The court and opposing counsel had been apprised of the motion only minutes before a scheduled status hearing. Nevertheless, the court granted that motion and set a deadline for Sanchez to file Salmeron’s third amended complaint, which had yet to be filed. Sanchez could not meet that deadline and asked for an extension, which the district court granted. But the extended deadline passed without Sanchez filing anything. Although the court’s clerk called Sanchez to inquire about the status of the filing and was told it was forthcoming, Sanchez neither attended the status hearing scheduled shortly after the deadline nor filed the third amended complaint. Only after the court ordered Sanchez to file the third amended complaint or face dismissal did Sanchez finally file that document. Despite these admonitions, Sanchez’s foot-dragging continued. On March 7, 2008, in response to the defendants’ motions to dismiss and for summary judgment, the court entered a scheduling order requiring Salmerón to respond by April 11. Predictably, Sanchez filed a motion for an extension on April 9, citing yet again his workload as a reason for delay. The court granted an extension until April 18, but that date passed without Sanchez filing a response to any of the motions. On May 1, Sanchez filed a motion to extend the filing date for the responses until May 6. The court granted that extension, but Sanchez failed to meet that extended deadline as well. On May 8, Sanchez contacted the court and requested a continuance of the status hearing scheduled for the next day, telling the court that the continuance was necessary so that he could file the delinquent responses before the hearing. Sanchez promised to have the responses filed by the afternoon of the next day, so the district court agreed to postpone the hearing until May 16. When, five days later, Sanchez still had not filed his responses, the district court finally got his attention: it entered an order dismissing the action for want of prosecution. Sanchez moved to reopen the case, arguing that his failures as counsel should not be held against Salmerón. At a hearing on the motion, the district court reinstated the suit while, at the same time, giving Sanchez a stern warning about the consequences of future misconduct: Well, I guess the short answer is that with considerable diffidence, I’m going to grant the Rule 59[ (e) ] motion and permit the case to get back into a live posture, but I want to tell you now you have really had what amounts to the final warning, and we’re not going to have any repetition of any of this, or it’s going to result in a conclusion that you certainly won’t desire and that ... is really occasioned by this extended pattern of noncompliance. Despite the second chance, Sanchez raised his misconduct to a more egregious level. On June 24, defendants USA Funds, Sallie Mae, and ERS learned that a scanned copy of the confidential document containing the Guarantee Services Agreement between Sallie Mae and USA Funds had been posted on a website known as Wikileaks.org (‘Wikileaks’’). Also posted was a summary of the document and 13 inflammatory questions about the possible “criminality” of the arrangement. Two days later, the Chronicle of Higher Education published an online article about the leaked document captioned “Contract Raises New Concern over Sallie Mae’s Ties to Guarantor.” The Chronicle claimed it had obtained the document several days before it appeared on Wikileaks and denied providing it to Wikileaks. Both the copy of the Guarantee Services Agreement leaked to Wikileaks and the copy provided to the Chronicle bore Bates stamps conclusively demonstrating that they originated from USA Funds’s document production during this lawsuit. USA Funds then moved to dismiss the suit as a sanction for the disclosure of the Guarantee Services Agreement. Mark Sweet, USA Funds’s counsel, signed an affidavit filed contemporaneously with the motion to dismiss asserting that Sanchez had agreed to treat the confidential documents disclosed by USA Funds during discovery as being for “attorneys’ eyes only.” This condition was to remain in place until such time as the existing protective order, entered earlier in the action when only ERS was a defendant, could be modified to include all parties. USA Funds' also included the cover letter accompanying its first production of documents on January 31, 200Y, wherein Sweet, writing to Sanchez, stated that USA Funds intended to seek confidential treatment for the Guarantee Services Agreement. Sweet also wrote in that letter that he had “circulated a draft joint motion for entry of [a] modified protective order” and that USA Funds would “move for confidential treatment” of the Guarantee Services Agreement after the court entered that order. In a separate email communication with Sanchez, Sweet attached a draft protective order and asked Sanchez to add his changes. (Sanchez had told Sweet that he wished to modify the protective order to cover documents from Salmeron’s home computer.) Sanchez replied that he would look over the proposed protective order and “give ... any feedback or proposed modifications that [he] might have.” Two months later, in a cover letter accompanying USA Funds’s second production of documents, Sweet reminded Sanchez that USA Funds was going to seek confidential treatment for the Guarantee Services Agreement and requested Sanchez to provide his edits on the draft protective order so that the order could be entered. Sanchez never provided his promised changes to the proposed protective order. At the time of the leak, no protective order was in place. USA Funds also included with its motion to dismiss an email exchange between its counsel and Sanchez that occurred shortly after it discovered the leak. In that exchange, Sanchez admitted that the document posted on Wikileaks was the same version of the Guarantee Services Agreement that USA Funds had produced in the lawsuit, but he placed the blame on USA Funds for never following up on the protective order with the district court. He also stated that USA Funds failed to indicate which documents “provided to plaintiff it considered to be confidential.” In his response to the motion to dismiss, Sanchez stated that the document “apparently ha[d] been leaked and published without plaintiffs counsel’s knowledge or approval.” At a hearing the next day, the district judge questioned Sanchez about how the document could have been leaked without his knowledge when the version of the Guarantee Services Agreement published on Wikileaks had the same Bates numbering as the version released during discovery. While denying giving the Guarantee Services Agreement to Wikileaks, Sanchez nevertheless backtracked and admitted that he had leaked the document to three different, unauthorized sources: his client, another attorney whom he was thinking about bringing on as co-counsel, and a reporter for the Chronicle. Finding Sanchez’s justifications for his actions unpersuasive, the district court nonetheless allowed Sanchez to file a brief arguing why a sanction other than dismissal would be appropriate. In that brief filed after the hearing, Sanchez admitted that, had he referred to the cover letters accompanying USA Funds’s document disclosures, he would have known that USA Funds was seeking a confidential designation for the leaked document and would not have shared it with anyone, including the reporter for the Chronicle, whom Sanchez stated he had béen “put[ting] off’ for months before finally disclosing the document to him. However, Sanchez claimed he misplaced the cover letters and did not refer to them when he disclosed the document. Although he denied personally leaking the Guarantee Services Agreement to Wiki-leaks, Sanchez admitted that the attorney to whom he leaked the document may have done so. He argued that his disclosure was inadvertent and that a monetary fine, and not dismissal, was the appropriate sanction. The district court disagreed. In a comprehensive opinion, it found that Sanchez violated the “attorneys’ eyes only” agreement he had reached with Sweet by willfully disseminating the Guarantee Services Agreement. The court also found that Sanchez had never given a convincing explanation for doing so. The court rejected Sanchez’s argument that he should not be sanctioned because no protective order was in place protecting the document, finding instead that the lack of a protective order was “unquestionably due to Sanchez’[s] failure to provide a response as he had promised.” Relying on its “inherent authority to rectify abuses to the judicial process,” the court then decided that dismissal with prejudice was the proper sanction and dismissed the suit. Salmerón appeals. II. On appeal, Salmerón challenges both the district court’s factual findings supporting the dismissal sanction and its power to issue that sanction. A district court has inherent power “to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Sanctions meted out pursuant to the court’s inherent power are appropriate where the offender has willfully abused the judicial process or otherwise conducted litigation in bad faith. Maynard v. Nygren, 332 F.3d 462, 470-71 (7th Cir.2003). “Though ‘particularly severe,’ the sanction of dismissal is within the court’s discretion.” Montano v. City of Chicago, 535 F.3d 558, 563 (7th Cir. 2008) (quoting Chambers, 501 U.S. at 45, 111 S.Ct. 2123); accord Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). While a district court must exercise caution and restraint in exercising its inherent power, Schmude v. Sheahan, 420 F.3d 645, 650 (7th Cir. 2005), our review of the district court’s choice of sanction is deferential: “[f]mdings of fact must stand unless clearly erroneous, and a district judge’s decision that a party’s misconduct is serious enough to justify dismissal with prejudice is reviewed for abuse of discretion.” Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Servs. Ams. LLC, 516 F.3d 623, 625 (7th Cir. 2008). Accordingly, “[w]e will only reverse a district court’s imposition of sanctions if one or more of the following is true: ‘(1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary.’ ” Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 386 (7th Cir.2008) (quoting Gile v. United Airlines, Inc., 95 F.3d 492, 495 (7th Cir.1996)). We begin with Salmeron’s challenges to the district court’s factual findings, which we will reverse only if left with a “definite and firm conviction that a mistake has been committed.” NutraSweet Co. v. X-L Eng’g Co., 227 F.3d 776, 790 (7th Cir.2000). Salmerón first attacks the district court’s finding that Sanchez and USA Funds’s counsel, Mark Sweet, had agreed to keep the Guarantee Services Agreement for “attorneys’ eyes only” until the district court entered a protective order governing document disclosure between the parties. She does not dispute the existence of the “attorneys’ eyes only” agreement. Rather, she argues that there is nothing in Sweet’s declaration to support the district court’s finding that Sanchez had agreed specifically to keep the Guarantee Services Agreement confidential. The problem with that argument is that Salmerón never seriously disputed in the court below that the Guarantee Services Agreement was covered by the “attorneys’ eyes only” agreement. Although Sanchez at first claimed, in his email response to USA Funds after the leak, that USA Funds did not indicate which documents “it considered to be confidential,” he later admitted that the cover letters accompanying USA Funds’s document productions clearly showed that USA Funds was seeking a confidential designation for the Guarantee Services Agreement — which was all that was required to bring that document within the ambit of the “attorneys’ eyes only” agreement. Faced with that concession, Salmerón changes course and attempts to refashion the agreement on appeal. She latches onto the phrase in Sweet’s affidavit that “USA Funds wanted the same protections for its documents as those afforded by the Protective Order already in place be tween” ERS and Salmerón. Salmerón claims that phrase meant the ERS protective order governed the “attorneys’ eyes only” agreement. Following that logic, Salmerón argues the Guarantee Services Agreement was not protected because it (1) was not stamped “CONFIDENTIAL” and (2) was not the subject of a motion seeking the lower court’s approval of the confidentiality designation — both of which, Salmerón claims, are prerequisites under the protective order between ERS and Salmerón for confidential protection. We reject the premise. Sweet’s statement does not say anything about the “attorneys’ eyes only” agreement. The “attorneys’ eyes only” agreement required Sanchez to treat the confidential documents of USA Funds as for “attorneys’ eyes only” until such time as a protective order could be entered. That was the extent of the agreement; it was merely a stopgap until the district court entered a protective order governing USA Funds’s confidential documents. While the protective order eventually entered by the district court governing discovery between Salmerón and USA Funds set forth the same procedures for determining confidentiality as the ERS protective order, Sanchez’s unauthorized disclosure of the Guarantee Services Agreement occurred before that order was in place. Salmerón therefore cannot now claim that USA Funds was required to follow the provisions of an order that was not yet in place — especially because Sanchez failed to return the draft protective order with his proposed changes to USA Funds’s counsel, thereby preventing the protective order from being entered in the first place. Salmerón also claims that the district court clearly erred in finding that Sanchez’s disclosure of the Guarantee Services Agreement was willful, thereby triggering the court’s inherent power to sanction. See Greviskes v. Universities Research Ass’n, Inc., 417 F.3d 752, 759 (7th Cir.2005) (“Dismissal is appropriate where a party has displayed fault, bad faith, or willfulness.”); see also Downs v. Westphal, 78 F.3d 1252, 1257 (7th Cir. 1996). We conclude, however, that the district court did not clearly err in finding willfulness. Before the district court, Sanchez admitted that he indeed did disclose the Guarantee Services Agreement — not once, but three times in violation of the “attorneys’ eyes only” agreement: to his client, another lawyer, and the reporter for the Chronicle. Sanchez admitted that the other attorney to whom he disclosed the document may have been the source of the Wiki-leaks posting. And his disclosure to the reporter for the Chronicle is especially telling. A reasonable person should know that giving a sensitive document to a member of the press, particularly one whose interest in the document was so keen that Sanchez repeatedly had to “put him off,” almost inevitably will lead to its publication. That alone is more than sufficient to support the district court’s finding of willfulness. See Stive v. United States, 366 F.3d 520, 522 (7th Cir.2004). Salmerón nevertheless maintains that Sanchez’s disclosures were merely negligent. She claims that Sanchez misplaced the cover letters accompanying USA Funds’s document disclosures and thus did not know that the Guarantee Services Agreement was confidential. But, given Sanchez’s shifting stories, the district judge was entitled to disbelieve that explanation. At first, Sanchez did not deny disclosing the document in his email response to USA Funds’s counsel, instead blaming USA Funds for failing to specifically mark it confidential and move for a protective order. Later on, Sanchez claimed it had “been leaked and published without plaintiffs counsel’s knowledge or approval.” Still later, after the district court confronted him with the Bates stamping on the Wikileaks document, Sanchez admitted he had “exercis[ed] bad judgment” and leaked it to three different sources. Only in his final response to USA Funds’s motion to dismiss did Sanchez raise the misplaced cover letter explanation. The district court found that Sanchez’s contradictory excuses were “totally unconvincing” and that “no real explanation ha[d] been offered” for the unauthorized disclosure. Hence, the district court’s finding that Sanchez willfully disclosed the Guarantee Services Agreement was not clearly erroneous. With the facts firmly established, we now turn to Salmeron’s other challenges to the district court’s sanction of dismissal. Salmerón first argues that the district court should not have sanctioned her because no protective order was in place disallowing the disclosure. In support of that argument, Salmeron cites Jepson, Inc. v. Makita Electric Works, Ltd., 30 F.3d 854 (7th Cir.1994). In that case we stated, “Absent a protective order, parties to a law suit may disseminate materials obtained during discovery as they see fit.” Jepson, 30 F.3d at 858. The problem with that argument, however, is it ignores the “attorneys’ eyes only” agreement. Sanchez voluntarily entered into that agreement. As discussed above, that agreement restricted Sanchez from disseminating the Guarantee Services Agreement. Sanchez clearly violated the agreement when he shared that document with third parties. We also reject Salmeron’s related contention that the district court was required to find “good cause” for keeping the Guarantee Services Agreement confidential before sanctioning Sanchez for his unauthorized dissemination of that document. It is of course true, as Jepson holds, that a district court is required to “independently determine if ‘good cause’ exists” before judicially protecting discoverable documents from third-party disclosure. 30 F.3d at 858; see also Fed.R.Civ.P. 26(c). But in this case the district court never had that opportunity because Sanchez short-circuited the protective-order process. When delivering the draft protective order to Sanchez, Sweet wrote to Sanchez that USA Funds would .move for confidential treatment of the Guarantee Services Agreement after Sanchez made his changes and the district court entered the order. Sanchez responded that he would look over the proposed order and would “give [USA Funds] any feedback or proposed modifications” he might have. Had Sanchez done what he told USA Funds’s counsel he was going to do, USA Funds would have had an opportunity to present the proposed protective order to the district court along with a motion seeking confidential protection for the Guarantee Services Agreement. In turn, the district court would have had an opportunity to rule on whether there was good cause to keep the document confidential. But Salmeron’s attorney instead chose to bypass the district court’s prerogative to determine confidentiality when he divulged the document himself before submitting his changes to the proposed protective order. Salmerón therefore cannot now complain of a lack of a ruling on good cause. Despite Sanchez’s failure to return his modifications, Salmerón nevertheless claims that USA Funds was at fault for the absence of a protective order because, according to Salmerón, it was unreasonable for USA Funds’s lawyers to wait more than 17 months for Sanchez’s feedback on the draft protective order. Counsel for USA Funds had an independent obligation to its client, and Salmerón contends its lawyers should have moved for confidential protection of the Guarantee Services Agreement “promptly when it did not hear back from Mr. Sanchez.” Because USA Funds’s lawyers did not so move, Salmerón argues that she should not face sanctions for their failure to protect their client. It does appear that nothing prevented USA Funds’s lawyers from protecting their client’s interests sooner, and perhaps they should have. But Salmeron’s argument essentially boils down to faulting USA Funds’s lawyers for not protecting their client from an adversary who might not be trustworthy. We cannot accept that assertion. Attorney integrity is fundamental to the judicial process. The rules of conduct governing the profession prohibit lawyers from engaging in conduct that involves dishonesty and misrepresentation. See, e.g., Model Rules of Profl Conduct R. 8.4(c); Model Code of Profl Responsibility DR 1-102(A)(4); N.D. 111. R. 83.58.4(a)(4); 111. S.Ct. R. Profl Conduct 8.4(a)(4). And the Seventh Circuit’s Standards for Professional Conduct specifically state that a lawyer is permitted to rely on opposing counsel’s promises and agreements. Practitioner’s Handbook for Appeals, Standards for Profl Conduct within the Seventh Judicial Circuit, at 143 ¶ 6 (2003). We therefore find Salmeron’s argument that USA Funds’s attorneys ought to have been more wary of the opposition completely unpersuasive. Sanchez agreed to keep USA Funds’s confidential documents for “attorneys’ eyes only.” He also promised to get back to USA Funds’s lawyers about his proposed changes to their draft protective order. The attorneys for USA Funds were entitled to take Sanchez at his word. Salmerón also complains she was not adequately warned that dismissal would result from the disclosure of the Guarantee Services Agreement. We disagree. Sanchez received a “warning shot” when, after repeatedly trying the court’s patience, the district court dismissed the lawsuit without prejudice. After reinstating the suit, the court explicitly told Sanchez that he was receiving his “final warning” and that any further misconduct was likely to result in a more drastic sanction. That warning still should have been fresh in Sanchez’s mind when, just one month later, he willfully disclosed the Guarantee Services Agreement in violation of the “attorneys’ eyes only” agreement. See Williams v. Chicago Bd. of Educ., 155 F.3d 853, 858-59 (7th Cir.1998) (finding adequate notice where district court previously had sanctioned the plaintiff and warned that further sanctions would ensue from continued abuse of the judicial process). But, Salmerón protests, the district court’s previous warning did not encompass Sanchez’s disclosures because they “differed in kind” from his earlier transgressions. While true, that reasoning supports the district court’s decision rather than undermining it. If Sanchez’s previous litigation abuses had prompted the district court to flirt with dismissal, he certainly should have expected his willful violations of an agreement with opposing counsel — a far more serious set of offenses — “to be answered with dismissal.” Fed. Election Comm’n v. Al Salvi for Senate Comm., 205 F.3d 1015, 1019 (7th Cir. 2000). Salmerón next contends that the district court abused its discretion by dismissing her potentially meritorious lawsuit when, according to Salmerón, Sanchez’s misconduct had “no meaningful im pact on the course of litigation.” We reject that argument for two reasons. First, Salmerón presents little more than her personal opinion to support her assertion that her lawsuit had merit. Second, contrary to Salmeron’s contention, we do not require a district court to measure the impact on the litigation of a wrongdoer’s willful misconduct before it issues a dismissal sanction. See Barnhill v. United States, 11 F.3d 1360, 1368 (7th Cir.1993) (“We continue to eschew grafting a requirement of prejudice onto a district court’s ability to dismiss or enter judgment as a sanction under its inherent power.”). A district court certainly can consider the extent of the prejudice to the opposing party when determining an appropriate sanction. But a district court’s inherent power to sanction for violations of the judicial process is permissibly exercised not merely to remedy prejudice to a party, but also to reprimand the offender and “to deter future parties from trampling upon the integrity of the court.” Dotson v. Bravo, 321 F.3d 663, 668 (7th Cir.2003). Lastly, Salmerón argues that the interests of the government will be harmed by the dismissal of her suit. While that may or may not be true — Salmerón has failed to show that her suit has merit — we reject that argument as a reason to with hold the dismissal sanction. The government was given ample opportunity to protect its own interests in this case. It was served with the initial complaint as well as every other document filed in this case, including the district court’s first order dismissing the suit for want of prosecution and USA Funds’s motion asking the court to sanction Sanchez for the disclosure of the Guarantee Services Agreement by dismissing the suit. The government therefore had notice of Sanchez’s misconduct and could have intervened. See 31 U.S.C. § 3730(b)(2), (c)(3).
677641-7227	MEMORANDUM AND ORDER TROUTMAN, District Judge. To enforce an agreement providing for the cross-licensing of patent rights, plaintiff instituted this action and requested a declaration that defendant’s new patent (the 007 patent) is “related” to an original patent (the Pierret patent) under the terms of an agreement which concluded patent infringement litigation between the parties six years ago. Plaintiff, moving for summary judgment, argued that the 007 patent was “related” to the Pierret patent within the meaning of the “related patents” clause of the settlement agreement in that it “utilize[d], incorporate[d] or disclose[d] a method for agglomerating tantalum powder as disclosed in the Pierret patent”. Defendant countered that the 007 patent did not “claim, utilize or incorporate” a method of agglomerating tantalum powder as “disclosed” in the Pierret patent and, hence, the two were not “related”. The Court held that the 007 patent was related to the Pier-ret patent under the terms of the agreement and, accordingly, enjoined defendant from asserting, alleging or representing that plaintiff did not have a non-exclusive license and further directed defendant, pursuant to the agreement, to revise its list of “related patents” and to include the 007 patent therein. Subsequently, defendant filed a notice of appeal and a motion to stay the injunction pending appeal, in which defendant sought a stay of the Court’s entire order. Defendant then withdrew that motion to file a more narrowly tailored request to stay that portion of the order commanding revision of its list of “related” patents. Fed.R.Civ.P. 62(c) provides in relevant part that [w]hen an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. To prevail, the moving party must show a likelihood of success on the merits, irreparable injury without the stay and absence of substantial harm to other persons specifically and the public generally. True, these factors guide the Court’s analysis, but no one aspect alone dictates the result. Properly, the Court carefully considers all the elements and delicately balances the equities presented by the particular set of facts. Courts disagree as to the amount of “likelihood” which the moving party must demonstrate. Some demand a “strong showing” whereas others require only a “substantial” or “likely” case. In any event, the burden is a heavy one, and the movant must show more than the “non-frivolity” of the pending appeal. However, where the possibility of irreparable harm favors issuance of the stay and harm to third parties seems minimal, the showing which the moving party must make will not be as rigorous. In any event, predicting the likelihood of appellant’s success with an appeal is a difficult inquiry for the trial judge, who already has reached the legal, if not factual, merits of the controversy and rendered a conclusion unfavorable to the moving party. In the case at bar, defendant argues in support of its most recent motion , that the Court failed to consider the distinction between the date when a patent is filed and the date when it is issued and, more importantly, the relevance of that distinction in interpreting the related patents clause of the settlement agreement. Therefore, defendant argues that its proffered construction of the alternative provisions of the related patents clause does not render sections thereof “meaningless”, as the court concluded, for a later issued patent could have been filed earlier than the effective filing date of the Pierret patent. Regrettably, defendant did not explain in this fashion its original argument, which the Court still finds unpersuasive. Notwithstanding doubts concerning defendant’s likelihood of success on appeal, irrespective of the standard employed, the possibility of irreparable harm under these circumstances justifies staying a limited portion of the Court’s original order, which not only restrained defendant from continuing previous conduct but also commanded defendant to do a positive act. Defendant concedes no irreparable harm if the Court refuses to alter its prohibition. Rather, defendant complains that the addition of the 007 patent to the list of “related” patents could be held to be non-revocable and plaintiff could be deemed to have a royalty-free license under the patent. The purpose of staying an injunction pending appeal is to preserve the status quo. The Court may grant or continue an injunction upon the terms which it deems appropriate, for equitable remedies “spe-ciaipy] blend ... what is necessary, ... fair, ... and workable”. To stay that portion of the Court’s order directing a positive act by the defendant will preserve the status quo. Accordingly, that portion of the order will be stayed. ORDER AND NOW, this 30th day of June, 1981, IT IS ORDERED that the portion of the Court’s prior order dated April 21,1981, and commanding that defendant shall specifically perform said agreement and revise its list of ‘related patents’ pursuant to paragraph 1(f) of said agreement to include United States Letters Patent 4,009,007 is STAYED pending disposition of defendant’s appeal to the United States Court of Appeals for the Third Circuit. IT IS FURTHER ORDERED that defendant post a supersedeas bond in the amount of FIVE THOUSAND DOLLARS ($5,000.00). . United States Letters Patent No. 4,009,007. . United States Letters Patent No. 3,418,106. . See Kawecki Berylco Industries, Inc. v. Fan-steel, Inc., 512 F.Supp. 984 (E.D.Pa.1981). . BP Oil, Inc. v. Marshall, 509 F.Supp. 802 (E.D.Pa.1981), Hodges v. Brown, 500 F.Supp. 25 (E.D.Pa.1980), Hickey v. Commandant of the Fourth Naval District, 464 F.Supp. 374 (E.D. Pa.), aff'd, 612 F.2d 572 (3d Cir. 1979). Cf. Perkins v. Wagner, 513 F.Supp. 904 (E.D. Pa. 1981) and Kocher Coal Co. v. Marshall, 497 F.Supp. 73 (E.D.Pa.1980) (standard applicable for preliminary injunction). . See Constructors’ Association of Western Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir. 1978). . Eastern Milk Producers Cooperative Association, Inc. v. Lehigh Valley Cooperative Farmers, Inc., 448 F.Supp. 471 (E.D.Pa.), aff'd, 582 F.2d 1273 (3d Cir. 1979). . See, for example, United States v. Manchel, Lundy & Lessin, 477 F.Supp. 326 (E.D.Pa. 1979) and Resident Advisory Board v. Rizzo, 429 F.Supp. 222 (E.D.Pa.), aff'd, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978). . Walker v. O’Bannon, 487 F.Supp. 1151 (W.D. Pa. 1980). . See Griffin v. Richardson, 346 F.Supp. 1226 (D.Md.1972), aff'd, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1973). See also n.14. . Philadelphia Council of Neighborhood Organizations v. Adams, 451 F.Supp. 114 (E.D.Pa. 1978). . See Delaware River Port Authority v. Trans-america Trailer Transport, Inc., 501 F.2d 917 (3d Cir. 1974). . Marshall v. Berwick Forge & Fabricating Co., 474 F.Supp. 104 (M.D.Pa.1979). . See Kawecki Berylco Industries, Inc. v. Fansteel, Inc., 512 F.Supp. at 988.
1417321-11642	PER CURIAM: Appellant James D. Handy, a civilian employee at an Army installation, was injured in an accident. After the accident, he was able to return to work, subject to certain accommodations. Handy’s physical restrictions eventually became so severe that even with all reasonable accommodations, he could no longer fulfill the core responsibilities of his job. Handy thus chose to take disability retirement. He then filed suit against the Secretary of the Army in the United States District Court for the Western District of Texas, claiming that he was discharged in violation of the Rehabilitation Act of 1973 and Title VII of the Civil Rights Act of 1964. On summary judgment, the court found in favor of the Army. Handy now appeals that decision. We AFFIRM the decision of the district court. I. FACTUAL BACKGROUND Plaintiff-Appellant James D. Handy (“Handy”) was a civilian employee at Fort Hood, Texas from 1980 to 1996. From 1980 to 1986, Handy worked as a telephone mechanic. In 1986, Handy suffered a severe knee injury in a car accident. The injury prevented him from returning to work. In 1990, Handy had knee replacement surgery, which subsequently allowed him to return to work in 1992. When Handy returned to work he was subject to certain physical restrictions. His medical profile limited him to walking three hours per day; climbing, squatting, kneeling, twisting, and standing for two hours per day; and lifting objects no more than twenty pounds. When he returned, the only vacant position in Handy’s old department was that of “telephone worker.” His former position of mechanic had the same basic job duties as this new position, although the old position involved less direct supervision. Both jobs were informally called “telephone installer.” Handy accepted this position in November 1992, subject to modifications required by his medical profile. In June 1993, Handy filed an equal employment opportunity complaint claiming that the Army discriminated against him by giving him a lower-grade work title upon his return. Handy’s complaint led to his reappointment as a mechanic. For the first three years of his return, Handy primarily worked at North Fort Hood. But in December 1995, a backlog of work orders on the main post required all telephone installers to work on the main post. Although his supervisors reassured him that his work on the main post would not violate his 1992 medical profile, Handy was nevertheless concerned that working on the main post would force him to climb too many stairs. In February 1996, Handy received a new medical profile that drastically increased his physical limitations. His new medical profile limited him to climbing stairs, kneeling, bending, stooping, or twisting for ten minutes per day; carrying up to ten pounds for one hour per day; carrying up to twenty pounds for a half hour per day; and standing or walking for two hours per day. These new restrictions made it impossible for Handy to perform the work of a telephone mechanic. Handy’s supervisors soon began looking for a different position for him that could be tailored to meet his physical restrictions. During this search period, he performed limited work duties and continued to receive his full salary. In late February 1996, while the search was ongoing, Handy suffered a heart attack and spent the next several months recovering. On March 26, while Handy was recuperating, he was notified that there were no vacant positions for which he was qualified. Handy returned to work on June 18. Upon his return, Handy submitted a worker’s compensation claim, but his claim was denied. As an alternative, he submitted an application for disability retirement. However, the United States Office of Personnel Management (OPM) refused to process the application without documentation that Handy was going to be terminated. On July 8, Handy’s supervisor signed a letter that proposed to terminate Handy. After Handy received the notice of proposed termination, he met with Lieutenant Colonel Scott Lofgren (“Lt.Col.Lofgren”) and presented a letter from his doctor, Edward Lewis, dated July 11.' This letter stated in relevant part: “Let me say again that the profile date, January 18, 1996 is for a specific job as [a telephone mechanic]. He was never able to do that job from the very beginning of his re-employment.” Handy met with Lt. Col. Lofgren again on July 16. At this meeting, Lt. Col. Lofgren concluded that the January 1996 medical profile was still operative and that Handy was unable to perform the job of telephone mechanic. On September 4, 1996, OPM approved Handy’s application for disability retirement. The retirement was made effective September 9. On October 3, the Army notified Handy that it would cancel the notice of proposed termination, since he had already retired by that point. II. PROCEDURAL BACKGROUND On November 8, 2002, after exhausting his administrative remedies, Handy filed suit in the United States District Court for the Western District of Texas alleging that the Army violated the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. Once discovery was completed, the Army moved for summary judgment. On April 7, 2004, the district court granted the Army’s summary judgment motion. On the Rehabilitation Act claim, the court found that Handy failed to establish both that he suffered an adverse employment decision and that he is an otherwise qualified individual with a disability. On the retaliation claim, the District Court found both that Handy failed to establish that he suffered an adverse employment decision and that he failed to show a causal connection between his protected activity in 1993 and his retirement in 1996. Handy now appeals the district court’s decision. III. ANALYSIS A. Standard of Review We review a district court’s grant of summary judgment de novo, applying the same legal standards as the district court. See Fierros v. Tex. Dept. of Health, 274 F.3d 187, 190 (5th Cir.2001). Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). The initial burden to demonstrate the absence of a genuine issue of material fact is on the movant. Id. at 323, 106 S.Ct. 2548. Upon showing that there is an absence of evidence to support an essential element of the non-movant’s case, the burden shifts to the non-movant to establish that there is a genuine issue of material fact. Id. at 324, 106 S.Ct. 2548. B. Disability Discrimination Claim The Rehabilitation Act prohibits discrimination against an otherwise qualified individual with a disability in programs that receive federal funding. 29 U.S.C. § 794(a); Kapche v. City of San Antonio, 176 F.3d 840, 844 n. 27 (5th Cir.1999). To establish a claim under the Rehabilitation Act, a plaintiff must show that he: (1) is an individual with a disability; (2) is otherwise qualified to perform the job; (3) was employed in a program or activity that receives federal funding; and (4) was discriminated against solely because of his disability. Hileman v. City of Dallas, 115 F.3d 352, 353 (5th Cir.1997); Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir.1993). If this prima facie case is made, courts then apply the familiar McDonnell Douglas burden shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The burden then shifts to the defendant to produce evidence of a nondiscriminatory reason for the employment action. Id. If such evidence is proffered, the burden of production then shifts back to the plaintiff to show that the nondiscriminatory justification was mere pretext. Id. Handy failed to make a prima facie showing of discrimination. Specifically, Handy failed to present evidence raising a material issue of fact as to whether he is otherwise qualified to carry out the duties of a telephone mechanic. To determine whether an employee is otherwise qualified, we conduct a two-step inquiry. First, we determine whether the employee can perform the core functions of the job. Chandler, 2 F.3d at 1393. Second, if the employee is unable to perform the core functions, we must ask whether reasonable accommodations would enable the employee to do so. Id. at 1393-94. Ultimately, the plaintiff has the burden of showing that he is otherwise qualified. Id. at 1394. As to the first step of the otherwise qualified inquiry, it is clear that Handy could not perform the core functions of a telephone mechanic. As for the second step, based on his 1996 medical profile, Handy’s physical limitations were so significant that no reasonable accommodations could have allowed him to perform the essential functions of his job. Further, Handy has failed to identify what accommodations could have been afforded to him that were withheld. As the plaintiff, he has the burden to identify such accommodations. Johnson v. Gambrinus Co./ Spoetzl Brewery, 116 F.3d 1052, 1059 n. 4 (5th Cir.1997). Handy also failed to present evidence raising a material issue of fact as to whether he was discriminated against solely because of his disability. In this case, the alleged discrimination arose from the circumstances surrounding the termination of his employment. Because Handy resigned, it can not be said that the Army directly discriminated against him. Nevertheless, Handy claims that he suffered from a constructive discharge. Under the constructive discharge doctrine, an employee’s decision to resign due to intolerable working conditions is tantamount to formal discharge. Pennsylvania State Police v. Suders, — U.S. -, 124 S.Ct. 2342, 2351-52, 159 L.Ed.2d 204 (2004). The inquiry focuses on the objective question: “Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?” Id. at 2351. There is nothing in the record to suggest that Handy was subjected to intolerable working conditions. At every turn, Handy’s supervisors accommodated him and scrupulously honored his medical restrictions. Handy also cannot prove that he resigned under duress. He claims that he faced the choice of possibly losing his job altogether or seeking disability retirement, in which case he would lose some benefits and his income would be reduced. Under these circumstances, he claims, he had no choice but to seek disability retirement. To prove that a government employee resigned under duress, the employee must prove that: (1) he involuntarily accepted the terms of his resignation; (2) under the circumstances, he had no other alternative but to resign; and (3) the circumstances of his resignation were the result of the government’s coercive acts. United States v. Thompson, 749 F.2d 189, 194 (5th Cir.1984). As to the second element, Handy had two options. He could have retired, as he chose to do, or he could have waited to see if a job for which he was qualified became available before the Army eventually terminated his employment. As one court has stated, “[mjerely because plaintiff was faced with an inherently unpleasant situation in that her choice was arguably limited to two unpleasant alternatives does not obviate the voluntariness of her resignation.” Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584 (Cl.Ct.1975). Regarding the third element, the Army’s sending the notice of proposed termination was not a coercive act since Handy received the notice upon his own request. C. Retaliation
11298361-11485	RICH, Circuit Judge. A. Stucki Company (Stucki) appeals from the June 19, 1991 judgment of the U.S. District Court for the Southern District of Ohio, Case No. C2-88-0308, granting summary judgment in favor of defendant Buckeye Steel Castings Company (Buckeye) and rejecting Stucki’s claim that by virtue of Buckeye’s part shareholder interest in and alleged control of now-defunct Railroad Dynamics, Inc. (RDI), Buckeye should now be held jointly and severally liable for damages awarded to Stucki because of RDI’s previously adjudged infringement. We affirm. BACKGROUND Stucki is the assignee of U.S. Patent No. 3,837,292 (’292 patent), now expired, directed to hydraulic shock absorbers or “snubbers” used on railroad boxcars. In 1980 Stucki won a jury verdict that RDI had infringed the ’292 patent, and was awarded approximately $2.2 million in damages. Judgment entered on the jury verdict was affirmed by this court. Railroad Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 220 USPQ 929 (Fed. Cir.), cert. denied, 469 U.S. 871, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984). Shortly thereafter RDI filed a petition under Chapter 11 of the Bankruptcy Act; its assets were ultimately liquidated in 1990. Concerned about RDI’s ability to pay the damages, Stucki in November 1983 initiated a second lawsuit against Stuart Schwam (Schwam), RDI’s president and 50% shareholder, and Worthington Industries, Inc. (Worthington). Stucki alleged that Worthington had merged with Buckeye in 1980, that at that time Buckeye owned the other 50% of RDI’s stock, and that Worthington should be held jointly liable with RDI and Schwam for RDI’s infringement, in view of “Buckeye’s ownership and management of a business and the acts of Buckeye through its agents, servants and employees in ... [RDI].” Worthington answered Stucki’s complaint by stating that it was not a proper party defendant, because Buckeye had not been merged with Worthington, and instead remained a wholly-owned subsidiary. Stucki thereafter moved (in September 1987) to amend its complaint to include Buckeye as a co-defendant. A. Stucki Co. v. Worthington Indus., Inc., 849 F.2d 593, 595, 7 USPQ2d 1066, 1067 (Fed.Cir.1988). Significantly, when informed that joinder of Buckeye would result in a delay of trial, Stucki withdrew its motion to join Buckeye, electing to proceed against Worthington alone. Id. The 1983 action resulted in the entry of summary judgment against Schwam, A. Stucki Co. v. Schwam, 634 F.Supp. 259, 229 USPQ 903 (E.D.Pa.), modified, 638 F.Supp. 1257 (E.D.Pa.1986), but a directed verdict in favor of Worthington, which directed verdict was affirmed by this court. Worthington, 849 F.2d at 595-98, 7 USPQ2d at 1067-69. Despite partial recoveries from RDI and Schwam, approximately $1.7 million of Stucki’s claim against RDI remained uncollected. In March 1988, Stucki commenced the instant action against Buckeye, alleging in Count I of its complaint that Buckeye was jointly and severally liable, along with Schwam and RDI, for patent infringement and related acts of unfair competition. Stucki amended its complaint against Buckeye in July 1989, to include a Count II for violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68 (1988). Stucki alleged that Buckeye engaged in a pattern of racketeering activity by causing RDI to infringe the ’292 patent. The district court did not decide the merits of Stucki’s claims, for it granted summary judgment in favor of Buckeye on the ground that both claims were time-barred. With respect to the patent infringement count, the district court held that Stucki was precluded under 35 U.S.C. § 286 from recovering any damages from Buckeye arising from Buckeye’s alleged participation in RDI’s infringing activities. The court found that “there is simply no evidence to support a finding that [Buckeye] participated in or induced any patent infringement” during the period ending in March 1988, when Stucki’s complaint against Buckeye was filed, and extending back six years to March 1982. After June 1980, the district court found, Buckeye had adopted a “hands-off and stay clear policy” with respect to RDI, and Buckeye ceased having a representative on RDI’s board of directors in 1981. Stucki contends here that the district court erred as a matter of law in its application of 35 U.S.C. § 286 to bar Stucki’s recovery. Without citation of authority, Stucki asks that the statute’s introductory phrase, “[e]xcept as otherwise provided by law,” be broadly construed as encompassing an equity-based exception to application of the six-year limitation on recovery of damages, so as “to uphold the rights of diligent patentees and prevent wrongdoers from escaping liability established by a judgment.” Stucki also contends that the instant action against Buckeye is of an equitable nature, to enforce a judgment, though Stucki has no judgment against Buckeye. In light of the equities involved, Stucki’s argument continues, the district court should have eschewed a “mechanical application” of § 286, and considered evidence purporting to show Buckeye’s participation in RDI’s infringement beyond the six-year damages limitation period; i.e., prior to March 1982. ANALYSIS We reject Stucki’s threshold argument that the instant action against Buck eye is equitable in nature. It is clear from Stucki’s complaint that this is a suit seeking to establish liability on the part of Buckeye for money damages. No request has been made of the district court that it exercise its equitable power to issue a writ of execution against Buckeye to enforce an already-rendered judgment; simply stated, there is no such judgment, at least as to Buckeye. Stucki next asks us to read into the introductory phrase of § 286 a meaning that is nowhere suggested in the case law or legislative history. Though the six-year damage limitation period has been a part of the patent statutes since 1897, the introductory phrase “[ejxcept as otherwise provided by law” was not added until the 1952 Patent Act. Stucki has not pointed to any legislative history explaining the addition of the introductory phrase, nor has this court’s own research uncovered any. Whatever the reason for addition of the introductory phrase in § 286, Stucki has not persuaded us that the district court erred in rejecting Stucki’s interpretation. Stucki argues that certain equitable considerations in the nature of those that may overcome the equitable defense of laches, e.g., the “other litigation” exception, can also operate to “toll” application of § 286. We disagree. First, we note that Buckeye has not raised laches or estoppel as a defense in these proceedings. Moreover, it is clear that § 286 operates independently of the equitable defenses of laches and estoppel. See A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1030-1081 (Fed.Cir.1992) (no conflict between equitable defense of laches and arbitrary limitation on period for which damages may be awarded under 35 U.S.C. § 286). See also Standard Oil Co. v. Nippon Shokubai Kagaku Kogyo Co., 754 F.2d 345, 348, 224 USPQ 863, 865 (Fed.Cir.1985) (recovery of damages for infringement taking place within the six years prior to the filing of the complaint may be had under 35 U.S.C. § 286, “assuming], of course, no other impediment to recovery or maintenance of the suit such as application of the doctrine of laches” exists) (emphasis added). The fact that courts have historically “borrowed” the six-year damage limitation period of § 286 as the time period for giving rise to a rebuttable presumption of laches, A.C. Aukerman, 960 F.2d at 1034-1035, does not otherwise link the two concepts. Stucki further contends that § 286 should be interpreted as applicable only against direct infringers, not against those who may be indirectly liable for infringement through inducement or contribution. This issue was apparently not raised below, and in any event was not addressed by the district court. Stucki’s position appears without merit in any case, for we have previously held that where a patentee complained of no acts of contributory infringement within the six years prior to commencement of the action, no recovery could be had against the alleged contributory in-fringer, regardless of whether others directly infringed within the six-year period. Standard Oil, 754 F.2d at 348-49, 224 USPQ at 865-66. In sum, Stucki failed below to come forward with any evidence that Buckeye committed any act after March 1982 that in any way constituted, induced, or contributed to RDI’s infringement. Having independently reviewed the record, we agree with the district court that no genuine issues of material fact exist as to Buckeye’s post-March 1982 conduct, and that Buckeye is entitled to judgment as a matter of law on Count I. The district court also granted summary judgment in favor of Buckeye on Count II, for alleged violation of RICO. A four-year statute of limitations applies to RICO claims, Agency Holding Corp. v. Malley-Duff & Assoc., Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987), though the circuit courts of appeal are divided as to when a civil RICO cause of action accrues. The district court in this case applied the majority rule as to accrual; namely, that the statute of limitations begins to run when the plaintiff discovers, or reasonably should have discovered, the basis for its civil RICO claim. See, e.g., Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1102-05 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989). The district court held that, even assuming patent infringement can form the basis of a RICO violation, any RICO claim Stucki had against Buckeye would clearly have accrued prior to July 1984 (four years from the date of filing of Stucki’s amended complaint presenting the RICO claim). Thus, the court held, Stucki’s RICO claim was barred by the four-year statute of limitations. Stucki now argues that its RICO cause of action could not have accrued before October 1984, when the Supreme Court denied RDI’s petition for a writ of certiorari to this court in our Railroad Dynamics decision, thus ending with finality the dispute over the validity of the ’292 patent. Stucki did not raise this argument below, and hence we will not consider it. Alternatively, Stucki contends that its RICO claim could not have accrued until RDI’s bankruptcy proceeding was concluded, in January 1990. Stucki’s theory appears to be that Buckeye engaged in a pattern of racketeering activity by participation in a “bankruptcy plot” to avoid payment of damages, and that Stucki could not be certain of the amount of its uncollected loss until the distribution of RDI’s assets was completed. The district court rejected this line of argument, and we see no reason to differ. Even applying the most expansive “last predicate act” definition of accrual advocated by Stucki, see Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1130 (3d Cir.1988), Stucki has failed to explain why RDI’s January 1990 liquidation, rather than its March 1984 bankruptcy filing, should constitute the “last predicate act which is part of the same pattern of racketeering activity.” Id. As Buckeye correctly notes, Stucki’s position only improved after RDI’s bankruptcy filing, since Stucki obtained a partial recovery through the eventual distribution of RDI’s assets. The district court did not err in granting summary judgment to Buckeye on Count II.
2040872-7771	OPINION OF THE COURT STALEY, Chief Judge. This petition for review of a decision of the Tax. Court requires us to decide whether certain amounts expended by taxpayers were deductible as “repairs” under § 162(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 162(a). The Tax Court held that the repairs were incidental to the transfer of the capital assets on which they were made and were, therefore, capital in nature, resulting in a determination of a deficiency in taxpayers’ return for the year of 1957. In 1957, taxpayers, ,Ritner K. Walling and Margaret C. Walling, his wife, were engaged in a partnership, The Oliver Transportation Company, which operated numerous barges transporting cargo, primarily coal, in the river and harbor of Philadelphia and off the Eastern Coast. The coast-trade business was carried on solely through the operation of the deep-sea barges “Darien” and VMamei.” During that year (1957), the taxpayers organized The Oliver Transportation Corporation and transferred to it the “Darien” and “Mamei” and the deep-sea haulage contracts, in return for which the taxpayers received virtually all the capital stock of the newly-formed corporation. Though the barges were transferred on May 29, 1957, the taxpayers had not, at that time, complied with their agreement to transfer them “in a seagoing and operational condition with current Coast Guard certificates and American Bureau of Shipping Load Line certificates.” The partnership had operated the two barges for nearly a year after their immediately preceding drydocking and repairs, and during that time the barges had suffered the normal wear and tear incidental to their use. Within two months after they were transferred, the “Darien” and “Mamei” were drydocked, repairs were made and inspection certificates obtained. The taxpayers paid the cost of the repairs as provided in the contract of sale, and deducted the amounts from their 1957 joint return. The Commissioner disallowed the $57,567 expenditure, thereby increasing the partnership’s distributable net income and the taxpayers’ income by that amount. The Tax Court upheld the Commissioner’s position, stating that though the expenditures “would normally be considered to be ordinary and necessary business expenses if incidental to the operation and maintenance of those vessels for business purposes, * * * [in this case, the] vessels were not used or intended to be used by the taxpayers after the repairs ‘in carrying on any trade or business.’ ” The Tax Court concluded that since the repairs were made after the transfer and since the expenditures were required by the transfer agreement “[t]hey were thus incidental to that transfer and were therefore capital in nature.” 45 T.C. 111 at 118 (October 25, 1965). The existence of a transfer would appear to add a new consideration to the often litigated question of whether a restoration of property is deductible as an expense of doing business or must be capitalized and then depreciated. Cf. 4A Mertens, Law of Federal Income Taxation § 25.41 at 190. The test which normally is to be applied is that if the improvements were made to “put” the particular capital asset in efficient operating condition, then they are capital in nature. If, however, they were made merely to “keep” the asset in efficient operating condition, then they are repairs and are deductible. Stoeltzing v. CIR, 266 F.2d 374, 376 (C.A.3, 1959). Though the Tax Court, in effect, found that the expenditures were made to “keep” the “Darien” and “Mamei” in efficient operating condition, it apparently found the “put-keep” distinction inapplicable because of the transfer and its relationship to the repairs which were eventually made. It reasoned that to permit a transferor to deduct the amounts expended where the repaired asset was sold would result in an unintended tax benefit to him since the increase in the value of the asset would be taxed at capital gains rather than the usual rates at which income produced would be taxed. We disagree with the Tax Court’s analysis which would read into § 162(a) the requirement that the amounts sought to be deducted must be expended to carry on the business in the future. Keeping in mind that the deductions are a matter of legislative grace and that such provisions must be construed strictly, we cannot find in the statute any basis for concluding that only those expenditures which “carry on” or continue the business are deductible. The statute provides that “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business” are deductible. “Taxation on net, not on gross, income has always been the broad basic policy of our income tax laws. Net income may be defined as what remains out of gross income after subtracting the ordinary and necessary expenses incurred in efforts to obtain or to keep it.” McDonald v. CIR, 323 U.S. 57, 66-67, 65 S.Ct. 96, 100, 89 L.Ed. 68, 155 A.L.R. 119 (1944) (dissenting opinion of Mr. Justice Black). The repairs in question were made necessary by reason of the operation of the “Darien” and “Mamei” to produce income for the partnership. The fact that the expenses were not necessary to continue the partnership business seems to us to be of no consequence. The position of the Tax Court requiring that the business be continued has, in the past, been urged before this court and rejected. In CIR v. Wayne Coal Mining Co., 209 F.2d 152 (C.A.3, 1954), we rejected the Commissioner’s argument that the expenses must have some prospective effect before they would be deductible and held in accordance with the weight of authority that expenses incidental to dissolution were paid in carrying on a trade or business. Our conclusion also finds support in the line of cases following Flood v. United States, 133 F.2d 173 (C.A.1, 1943), where expenses paid after the taxpayer had gone out of business were held to be deductible. Under our construction of § 162(a), then, the repairs expenses made necessary by the operation of the barges before the transfer on May 29, 1957, are clearly deductible by the petitioners. However, it is possible on the present record that the full $57,567 expenditure was not necessitated by the partnership operation. The “Darien” was drydocked over a week after its transfer to the corporation and the “Mamei,” although its Coast Guard certificate had expired, was not drydocked until about six weeks after its transfer. Therefore, it is necessary to remand the case to provide the Commissioner with a reasonable opportunity to make an allocation. It is true that the transfer of the barges was to a corporation in which petitioners were essentially the sole shareholders. The transfer thus falls within § 351 which provides: “No gain or loss shall be recognized if property is transferred to a corporation by one or more persons solely in exchange for stock or securities in such corporation * * Without citing § 351, the Tax Court noted that “of course, * * * the gain on the transfer of the two vessels herein was treated as nonrecognizable * * *." The obvious legislative object of § 351 and its statutory predecessor, § 112(b) (5) of the 1939 Code, is that Congress did not intend to tax “mere change[s] in the form of ownership.” Jordan Marsh Co. v. CIR, 269 F.2d 453, 456 (C.A.2, 1959); Barker v. United States, 200 F.2d 223, 228 (C.A.9, 1952); Trenton Cotton Oil Co. v. CIR, 147 F.2d 33, 36 (C.A.6, 1945); CIR v. Bondholders Committee, 118 F.2d 511, 513 (C.A.9, 1941), aff’d, 315 U.S. 189, 62 S.Ct. 537, 86 L.Ed. 784 (1942); Portland Oil Co. v. CIR, 109 F.2d 479, 488 (C.A.1, 1940); Coastal Terminals, Inc. v. United States, 207 F.Supp. 560 (E.D.S.C., 1962); Sayre v. United States, 163 F.Supp. 495 (S.D. W.Va.1958).
3685348-10689	HAMILTON, Circuit Judge. The corporate petitioner operates a retail clothing store at Detroit, Michigan. A portion of its sales are for cash and a portion on the installment plan, or conditional sales contracts. Petitioner, in its income tax return for the calendar year 1936, in answer to a question on the tax form, •stated that it valued its inventories at cost. For the calendar year ending December 31, 1937, petitioner, in making its income tax return, reduced its closing inventory $6,-741.31 below cost, which was a flat reduction of fifteen percent. On December 31, 1937, petitioner credited on its books to its president, C. R. Murphy, the sum of $4,500 which it claimed was unpaid salary. It had paid Murphy during the year $1,500. On March 1, 1938, petitioner gave Murphy a promissory note of $4,500 and credited accounts payable $4,500 and debited notes payable $4,500. On July 1, 1938, petitioner delivered to Murphy $4,500 par value of its stock in settlement of this note. Murphy reported the $4,500 in his individual income tax return for the calendar year 1937. Respondent disallowed the reduction in inventory as a loss on the ground it was prohibited under Section 22(c) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Code § 22(c). He disallowed the salary accrual of $4,500 as a deduction on the ground that the entry on petitioner’s books was tentative and that it was not an allowable deduction within the purview of Regulations 94, Article 22 (a)-3, and also that Murphy was taxpayer’s controlling stockholder and that as the salary was not paid within two and one-half months after the close of the tax year, the deduction was prohibited under Section 24 (a) of the Revenue Act of 1936, as amended by Section 301(a) of the Revenue Act of 1937, 26 U.S.C.A. Int.Rev.Code § 24(a). The Board of Tax Appeals (now the United States Tax Court) sustained the Commissioner, rejecting the inventory writedown on the ground that petitioner had elected to value its inventories at cost and that the salary credit was an unallowable deduction because petitioner had failed to prove that the services were rendered at a stipulated price as required under Regulation 94, Article 22(a)-3. Section 22(c) of the Revenue Act of 1936, c. 690, 49 Stat. 1648, Internal Revenue Code, 26 U.S.C.A. § 22(c) provides that whenever in the opinion of the Commissioner the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventories shall be taken by such taxpayer upon such basis as' the Commissioner, with the approval of the Secretary, may prescribe, conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income. Pursuant to statutory authority, the Treasury Department promulgated regulations that' taxpayers were given the option to adopt the basis of either (a) cost or (b) cost or market, whichever is lower, for their 1920 inventories. The basis adopted for that or any subsequent year is controlling and a change can be made only if permission is secured from the Commissioner (Treasury Regulations 94). The requirement that the method of valuing inventory assets be consistent is basic. It is clear that in order to reflect true income there must be consistency in the method from year.to year. The closing inventory ,at the end of one year is the opening inventory for the succeeding year and if a taxpayer is on one method at the beginning of the year and closes with another method, it would be a coincidence merely, if his true income is reflected. Petitioner admits it used cost in valuing its inventory at the end of the tax year 1936, but it argues that cost at that time was lower than market and that it used market December 31, 1937, but insists that as of that date market was lower than cost and that the facts must be viewed as though it had followed the method of cost or market “whichever is lower.” The statute provides for the selection of .a method of inventory valuation and, whether or not petitioner made a choice by its answer to the interrogatory on its income tax return, it is clear that it did make a selection by the method it in fact adopted in valuing its inventory at the close of 1936 and the conclusion is inescapable that under the statute, petitioner is bound by its own selection. Mother Lode Coalition Mines Co. v. Helvering, Commissioner, 317 U.S. 222, 226, 63 S.Ct. 179, 87 L.Ed. -. Aside from the question of petitioner’s irrevocable selection of a method its petition must fail for another reason. The taxing statute relating to inventories gives a broad discretion to the Commissioner to determine the proper method of valuation .and also the application of the method. The burden rests on the taxpayer to prove that the Commissioner’s action was arbitrary or an abuse of discretion. Lucas v. Kansas City Structural Steel Co., 281 U.S. 264, 271, 50 S.Ct. 263, 74 L. Ed. 848; Louisville Cooperage Co. v. Commissioner, 6 Cir., 47 F.2d 599. Petitioner has failed to carry this burden. Respondent insists that the accrued salary deduction should be disallowed because not actually paid within two and one-half months after the close of the taxable year as required under Section 24(c) (1) of the Revenue Act of 1936, as amended by Section 301(a) of the Revenue Act of 1937, Internal Revenue Code, 26 U.S.C.A. § 24(c) (1). As we view the record, this question is not before us. Before Section 24(c) (1) is applicable, the credit must have been made to the owners of more than fifty percent of the taxpayer’s voting stock. The Board of.Tax Appeals stated there was no evidence in the record showing how much of the stock of the petitioner, if any, Murphy or his family owned, and that because of this lack of evidence, it did not rest its decision disallowing the salary deduction on the ground that the sum claimed had not been paid within two and one-half months after the taxable year. The proceedings here foreclose us from deciding the facts no matter how clearly they may be disclosed by the record. General Utilities & Operating Co. v. Helvering, 296 U.S. 200, 207, 56 S.Ct. 185, 80 L.Ed. 154; Hormel v. Helvering, 312 U.S. 552, 560, 61 S.Ct. 719, 85 L.Ed. 1037; Commissioner v. Goulder, 6 Cir., 123 F.2d 686. The Board rests its decision solely on the ground that petitioner had not established the essential facts from which an allowable deduction could be determined. Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991; Reinecke v. Spalding, 280 U.S. 227, 50 S.Ct. 96, 74 L.Ed. 385; Wilcox v. Commissioner, 6 Cir., 119 F.2d 899. Section 23(a) (1) of the Revenue Act of 1936, Internal Revenue Code, 26 U.S.C.A. § 23(a) (1), provides that in computing net income there shall be allowed as deductions all ordinary and necessary expenses paid or incurred in carrying on any trade or business, including “,a reasonable allowance for salaries or other compensation for personal services actually rendered.” An identical provision has been in all Revenue Acts since the Act of 1918, the interpretation of which has led to three concrete rules for determining salary deductions: (1) Is the payment in fact salary or other compensation; (2) Have personal services been actually rendered, and (3) Is the payment reasonable or unreasonable when measured by the amount in quality of the services performed with relation to the business of the particular taxpayer. Merten’s Law of Federal Income Taxation, vol. 4, § 2544. Where the Commissioner disallows a deduction, the taxpayer has the burden of going further than merely proving the Commissioner was in error. He must establish the facts from which an exact determination of the deduction may be made. Burnet v. Houston, supr.a. In the case at bar, petitioner’s president, Charles R. Murphy, was the only witness who testified on the question of salaries. He was asked: (1) Whether there was any agreement between him and the corporation as to the amount he was to receive. His answer was “not on the records, no.” (2) Whether, according to the records, he was paid $1,500 compensation in 1937 and how it was paid, whether at the rate of $125 a month. Llis answer was “I can’t tell you that. It was credited to my account. The books will show that.” If nothing else appeared in the record, the decision of the Board that petitioner failed to carry the burden of proof would be correct. However, during the testimony of Murphy, the trial member interrupted and asked counsel for the respondent, “May I ask at this time what is the Government’s reason for disallowing the deduction of the full $6,000.00 ? Is it because it is unreasonable in amount?” Counsel answered, “The disallowance relates to only $4,500.00 of that and it is because the amount wasn’t paid either during 1937 or the first two ,and one-half months of 1938.” The member then interpolated, “That is -stated in accordance with the regulation,” and counsel responded, “Yes, see Article 23(a)-3 of Regulations 94.” The member then stated, “If the statute permits the deduction of a reasonable amount of compensation of employees for services actually performed. It is the Government’s position that if the unpaid balance of a reasonable amount is not paid before March 15th of the following year, it is not deductible ?” There was then discussion between the member and counsel as to the basis on which the petitioner reported its income ,and the member said: “Well, it seems to me we have a question of law here. The Government, as I understand it, is not contending that if a salary of $6,000.00 had been paid in cash to Mr. Murphy that that would not be unreasonable in amount.” To which counsel replied, “No indeed.” The member then stated, “My present thoiight is that the salary item should be allowed, but I don’t see that there is anything in the regulation that would warrant me in disallowing it in view of the plain words of the statute. I think we have here only a question of law. It is a question of the interpretation of the law and regulation.” It may be seen from the foregoing that after the Board had acquired complete jurisdiction of the cause and the trial had .actually begun counsel for respondent orally stipulated with the Board that all of the essential requirements for the salary deduction were present except the fact that the salary had not been paid within two and one-half months .after the close of the taxable year. We gather from the record that respondent was represented by able counsel and under such circumstances respondent is required to observe the admissions and stipulations of counsel of record during the trial of a case, just as counsel for any other litigant.
2585568-22569	OPINION PAUL L. FRIEDMAN, District Judge. The relevant facts and procedural history of this lengthy class action Title VII lawsuit have been set forth in many previous opinions, most recently by the United States Court of Appeals for the District of Columbia Circuit in Trout v. Sec’y of the Navy, 317 F.3d 286, 288-89 (D.C.Cir.), cert. denied, 540 U.S. 981, 124 S.Ct. 463, 157 L.Ed.2d 371 (2003). To summarize briefly, the issue now before the Court for resolution is whether plaintiffs are entitled to prejudgment interest under Section 114(2) of the Civil Rights Act of 1991 on their award of backpay and attorneys’ fees for periods prior to the effective date of the Act. See 42 U.S.C. § 2000e-16(d). On July 17, 2001, this Court entered a Final Judgment [666] awarding the plaintiffs $8,627,276.40 in interest on the backpay previously awarded, and $1,477,020.90 in interest on attorneys’ fees. The defendants appealed. On January 31, 2003, the court of appeals reversed, holding that the defendants could not be ordered to pay prejudgment interest on backpay and attorneys’ fees for periods prior to November 21, 1991, when Section 114(2) of the Civil Rights Act became effective. See Trout v. Sec’y of the Navy, 317 F.3d at 287-88, 290-91. Furthermore, because defendants had paid interim attorneys’ fees to counsel for plaintiffs that was attributable to litigation of the prejudgment interest issue — the issue on which plaintiffs ultimately lost in the court of appeals — the appellate court remanded to this Court for a “final determination of the costs and fees owed to the Trout class.” See id. at 293. After remand, the defendants filed a Motion [673] for Final Determination of Attorneys’ Fees and Costs Owed to the Plaintiff Class (“Mot. for Final Deter.”) and plaintiffs filed a Motion [687] for Entry of Declaratory Judgment Awarding Plaintiffs’ PreNovember, 1991 Interest on Backpay and Attorney’s Fees Pursuant to Austria v. Altman [sic ] (“Pl.’s Altmann Mot.”), both of which are now before the Court. I. BACKGROUND Originally begun in 1973 as a Title VII class action employment discrimination lawsuit, the Trout litigation has now continued for over thirty years. In 1981, after a lengthy trial involving forty-two witnesses, 7,000 pages of exhibits, and extensive regression analysis demonstrating sex discrimination in the Navy’s hiring, promotion, evaluation and assignment of women, Judge Harold H. Greene, the presiding judge, found that the Navy had violated Title VII and ordered the award of backpay. See Trout v. Hidalgo, 517 F.Supp. 873 (D.D.C.1981); Trout v. Hidalgo, Civil No. 73-0055, 1981 WL 416 (D.D.C. Oct.20, 1981). See also Trout v. Lehman, 652 F.Supp. 144 (D.D.C.1986). As recounted by the court of appeals, numerous additional decisions and stipulations followed, awarding additional back-pay. See Trout v. Sec’y of the Navy, 317 F.3d at 288. On September 20, 1993, the parties entered into a stipulation settling the case on its merits [553]; Judge Greene approved the stipulation on November 22, 1993[569]. Because, as even defendants agree, plaintiffs were the prevailing parties in the Title VII case, Judge Greene properly also awarded attorneys’ fees and costs to plaintiffs. Id. While the case was pending on its merits, the Civil Rights Act of 1991 was enacted. It provided in Section 114(2) for the award of prejudgment interest: the federal government is liable for “the same interest to compensate for delay in payment [as is available] in cases against nonpublic parties.” 42 U.S.C. § 2000e-16(d). By stipulations of May 10, 1995 [596, 597], defendants agreed to pay prejudgment interest on the backpay and attorneys’ fees awards, the interest to begin running from November 21, 1991, the effective date of the Civil Rights Act of 1991. Plaintiffs preserved their right to seek interest for periods before that date. See Stipulation [596] at 4; Stipulation [597] at 2-3. The issue presented first to Judge Greene and then to the court of appeals was whether Section 114(2), which became effective on November 21, 1991, could be applied where the discriminatory conduct had terminated before the effective date of the law. Judge Greene, who handled the case for most of its lengthy history, concluded that even though the liability phase of this case had ended on April 25, 1990, the application of Section 114(2) was appropriate given the government’s efforts “to delay the litigation and to drive up its costs.” See Trout v. O’Keefe, 144 F.R.D. 587, 590 (D.D.C.1992). On July 22, 1998 and August 12, 1998, respectively, Judge Greene issued a Memorandum Opinion and Orders awarding plaintiffs prejudgment interest on attorneys’ fees [621] and on back-pay awards [622], Prior to the entry of Final Judgment, however, Judge Greene passed away. The case was randomly reassigned to the undersigned and, on July 17, 2001, this Court entered Final Judgment [666] and ordered the defendants to pay interest on the backpay awards and attorneys’ fees. This Court’s July 17, 2001 Final Judgment with respect to prejudgment interest was based on two stipulations ’ that had been approved by Judge Greene and an Order issued by the undersigned: 1. By stipulation and order of March 3, 1999[644], Judge Greene ordered the payment of $8715.00 to compensate plaintiffs for the expert services of John Chagnon. 2. By stipulation and order of May 5, 1999[646], Judge Greene ordered the payment of $76,097.45 to plaintiffs’ attorneys for work performed between June 5, 1997 and January 20, 1999 litigating the pre-November 21, 1991 interest issue. 3. By order of May 31, 2001, the undersigned ordered defendants to pay attorneys’ fees to plaintiffs in the amount of $21,563 for work done by plaintiffs’ counsel between January 30, 1999 and April 30, 2000 litigating the pre-Novem-ber 21,1991 interest issue. In the March 3, 1999 and May 5, 1999 stipulations, defendants expressly reserved their right to seek recovery of the amounts agreed to and paid should they “ultimately obtain a judgment that they do not owe pre-November 21, 1991 interest on back-pay and/or attorneys’ fees.” See Stipulation [644] at 2; Stipulation [646] at 1-2. Defendants’ partial opposition to and partial concurrence in the motion leading to the May 31, 2001 Order contained a similar reservation. The total amount of attorneys’ fees, expert fees and costs covered by the two stipulations and the Order described above is $106,375.45. The defendants appealed the July 17, 2001 Final Judgment. On January 31, 2003, the court of appeals reversed on the issue of pre-November 21, 1991 interest, holding that Section 114(2) of the Civil Rights Act did not apply to a period before its effective date. The court of appeals remanded the ease to this Court for a “final determination of the fees and costs owed to the Trout class.” Trout v. Sec’y of the Navy, 317 F.3d at 292-93. In its opinion, the court of appeals emphasized two points. First, any statute waiving the sovereign immunity of the United States is subject to the rule of strict construction. See Trout v. Sec’y of the Navy, 317 F.3d at 289-90 (citing Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986) and Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983)). Any doubts about the scope of waiver are to be “resolved in favor of the narrower, governmental liability.” Id. (quoting Nichols v. Pierce, 740 F.2d 1249, 1257 (D.C.Cir.1984)). Because there is no express language in Section 114 or in the legislative history of the Civil Rights Act of 1991 suggesting that Congress intended retroactively to waive immunity as to the government’s liability for interest payments, the court explained that “to apply § 114(2) retroactively would be to impose liability on the government without its explicit, required consent.” Trout v. Sec’y of the Navy, 317 F.3d at 290 (citing Brown v. Sec’y of the Army, 78 F.3d 645, 654 (D.C.Cir.1996)). Second, the court of appeals reasoned that the ongoing nature of the litigation at the time of the enactment of Section 114(2) and the fact that final judgment on remedy was not entered until after the statute’s effective date were insufficient justifications for applying that provision to this case. The court emphasized that the relevant issue was not the procedural posture of the case and its ongoing nature, but rather whether the discriminatory conduct was ongoing at the time of the provision’s passage. See Trout v. Sec’y of the Navy, 317 F.3d at 291. Since the Title VII violations at issue had ended in 1979, over a decade before the enactment of Section 114(2), and the liability phase of the case was concluded by April 25, 1990, there was no basis for the award of pre-November 21, 1991 interest. See id. at 292. For these reasons, the court of appeals held that this Court had erred in awarding prejudgment interest on backpay and attorneys’ fees for periods prior to November 21, 1991. See id. at 293. Since the Navy already had paid some interim attorneys’ fees and costs to the plaintiffs, the court of appeals remanded the case for the proper determination of the fees and costs owed to the Trout class. See id. Plaintiffs filed a petition for rehearing and a suggestion of rehearing en banc, which were denied by the court of appeals on March 28, 2003. Plaintiffs also filed a petition for a writ of certiorari with the United States Supreme Court which was denied on November 10, 2003. After this case was remanded, defendants filed their motion for a final determination of attorneys’ fees and costs owed, seeking a refund of $106,375.45, plus interest. See Mot. for Final Deter, at 1. On December 22, 2003, plaintiffs filed an opposition. On December 17, 2003, plaintiffs also filed a separate motion to dismiss with prejudice defendants’ claim for recoupment of $106,375 [676]. That motion was administratively closed, but the arguments therein have been treated as further opposition to the motion for a final determination. See Order of September 30, 2004[684], In the interim, the Supreme Court issued a decision in Austria v. Altmann, 541 U.S. 677, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004), which plaintiffs contend was an intervening and controlling decision. Plaintiffs filed with the Supreme Court a petition for rehearing of the denial of their petition for a writ of certiorari. See October 5, 2004 Notice [685]. That petition was denied on November 1, 2004. See November 5, 2004 Notice [686]. Plaintiffs then filed a motion [687] with this Court for entry of judgment awarding plaintiffs pre-November, 1991 interest on backpay and attorneys’ fees pursuant to Austria v. Altmann, which also is before the Court. II. ATTORNEYS’ FEES AND COSTS The funds the defendants seek to recover include the interim attorneys’ fees and costs paid to the plaintiffs after 1997 that relate exclusively to the time spent and costs incurred in connection with litigating the issue of the right to prejudgment interest for the period prior to the enactment of the Civil Rights Act of 1991, plus interest thereon. The relevant question here is whether the plaintiffs are entitled to attorneys’ fees and costs as the “prevailing party” for that time period because of their success in the underlying Title VII litigation or, as defendants argue, whether the plaintiffs’ failure with respect to the prejudgment interest dispute precludes “prevailing party” status as to that claim and therefore precludes the award of fees and costs regarding that claim. Under the Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), a party’s entitlement to attorneys’ fees must be premised on successful litigation of a claim. “In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants ... counsel’s work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved.” Hensley v. Eckerhart, 461 U.S. at 434-35, 103 S.Ct. 1933. In light of Hensley, our court of appeals has noted that a plaintiff “may recover fees only for work related to the claim on which he prevailed.” Williams v. First Government Mortgage & Investors Corp., 225 F.3d 738, 746 (D.C.Cir.2000) (citing Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. 1933); see also Anthony v. Sullivan, 982 F.2d 586, 589 (D.C.Cir.1993) (“[Wjhen a party has obtained no favorable results in a particular aspect of a litigation, that party may receive no fee for work on that part of the case.”). The defendants argue that the prejudgment interest claim that plaintiffs unsuccessfully litigated was discrete from their successful litigation of the Title VII claim and that plaintiffs therefore are not enti-tied to attorneys’ fees and costs on that issue. See Memorandum of Points and Authorities in Support of Mot. Final Deter, at 10-11. The defendants note that the Final Order regarding backpay was signed on November 22, 1993 and that the prejudgment interest claim continued to be litigated for years after the Title VII litigation had terminated. See id. at 7. The defendants also note that the parties stipulated on July 9, 1997 that the “only remaining issue before the Court is the award of interest on attorneys’ fees and costs.” Id. at 3. Defendants argue that the prejudgment interest litigation therefore is a separate claim, distinguishable from the earlier litigation. See id. at 8-10. Since plaintiffs ultimately were unsuccessful on that claim, defendants contend that plaintiffs are not entitled to attorneys’ fees and costs as a “prevailing party” on that claim. See id. at 9. A. Judgment Fund While the plaintiffs do not dispute their ultimate lack of success on the prejudgment interest issue, they make several arguments as to why the defendants’ motion nevertheless should be denied. Plaintiffs’ primary argument is that a refund is precluded because the payments were financed by the government’s judgment fund. See Plaintiffs’ Opposition to Defendants’ Motion for Final Determination (“Opp.”) at 2. Under 31 U.S.C. § 1304, Congress created the “judgment fund” statute to allocate “[njecessary amounts” to be “appropriated to pay final judgments, awards, compromise settlements, and interest and costs specified in the judgments or otherwise authorized by law.” 31 U.S.C. § 1304(a) (emphasis added). Under the statute, payment is only provided when a judgment is final under 28 U.S.C. § 2414. Plaintiffs argue that the explicit language of 28 U.S.C. § 2414 regarding “final judgments” indicates that any payment made through the judgment fund is precluded from further appeals. See Opp. at 2. Alternatively, plaintiffs maintain that even if the payments are subject to appeal, the defendants should have appealed at the time of each of the interim payments rather than at the conclusion of the litigation because each payment-made, as it was, from the judgment fund — necessarily was final. See id. Ironically, this line of argument was last discussed by the court of appeals in Trout v. Garrett, 891 F.2d 332 (D.C.Cir.1989), an appeal from an earlier decision by Judge Greene in this very case. At that point in the litigation, it was the government that argued that it was unable to make interim payments through the judgment fund because the express language of the fund only allowed for payment of “final” judgments. The court of appeals disagreed, noting that under 42 U.S.C. § 2000e-5(k) Congress expressly waived the immunity of the United States from claims, whether final or interim, for attorneys’ fees and costs. See id. at 333. The court of appeals reasoned that if Congress expressly allowed a claim for interim fees against the government by a Title VII plaintiff, then it must also have intended that there be some means by which to pay the interim fees and costs. See id. at 334. The court explained that “to acknowledge an interim fee as awardable against the government but not payable prior to a [final] judgment ... ‘makes nonsense of the concept of an interim award.’ ” Id. (quoting Rosenfeld v. U.S., 859 F.2d 717, 727 (9th Cir.1988)) (emphasis in originals). The court continued: “We find no tenable support for the notion that Congress designed the judgment fund measure to retract or limit duly enacted waivers of sovereign immunity, and we do not doubt the government’s ability to arrange for payment of its lawfully-declared debts.” Id. at 335. The court went on to state that once it is understood that sovereign immunity does not preclude the payment of “interim” fee awards, it was apparent that the district court’s order was not immediately reviewable. Id. The court also noted that “[i]nter-loeutory is indeed the word descriptive of the district court’s fee award. The award does not even dispositively determine fees ...” Id. Interim payments, because they were neither final nor dispositive, could not be immediately appealed. Id. at 333. While the Trout class may now want to suggest that each of the payments through the “judgment fund” was final and that the time to appeal each has passed, the court of appeals’ decision in Trout v. Garrett rejected this line of reasoning. See Trout v. Garrett, 891 F.2d at 335. The D.C. Circuit dismissed the appeal, expressly requiring that the government wait to appeal until after a final decision was rendered; nothing about the means of payment through the judgment fund prevents a later appeal. Id. Finally, as defendants note, in this case stipulations were entered into by the parties at the time of two of the three interim payments that defendants retained the “right to seek recovery” in the event that they ultimately obtained a decision that they did not owe pre-November 21, 1991 interest. See Memorandum of Points and Authorities in Support of Mot. for Final Deter, at 5. As a result, neither payment through the “judgment fund” nor the government’s failure to immediately appeal therefrom precludes the instant request for a refund. B. Relatedness of Claims ■ The next question before the Court is whether the plaintiffs’ previous successful litigation of the Title VII claim is sufficiently related to the unsuccessful prejudgment interest dispute that attorneys’ fees and costs should be granted for litigation of the latter. In Hensley v. Eckerhart, the Supreme Court acknowledged that “there is no certain method of determining when claims are related or unrelated.” Hensley v. Eckerhart, 461 U.S. at 437 n. 12, 103 S.Ct. 1933 (internal quotations and citations omitted). The Court also emphasized that it was within the district court’s discretion to consider factors, like “the extent of. a plaintiffs success” and “the scope of the litigation as a whole” in making the relatedness determination. Id. at 438-39, 103 S.Ct. 1933. While the district court clearly has such discretion in calculating an appropriate fee, our court of appeals has held that under Hensley “when a party has received no favorable results in a particular aspect of a litigation, that party may receive no fee for work on the part of the case.” Anthony v. Sullivan, 982 F.2d at 589. “[NJo fee may be granted for work done on claims on which the party did not prevail, unless the unsuccessful claims were submitted as alternative grounds for a successful outcome that the plaintiff did actually achieve.” Id. (emphasis in original). See also Williams v. First Government Mortgage & Investors Corp., 225 F.3d. at 746 (holding that party may recover fees only for work related to the claim on which he prevailed). Applying the principles enunciated by the courts ■ in Hensley, Anthony and Williams, this Court concludes that plaintiffs’ unsuccessful claim for pre-November 21, 1991 prejudgment interest was distinct from their successful Title VII litigation. The court of appeals rejected plaintiffs’ claim for such interest and reversed Judge Greene’s decision awarding such interest payments. Thus, plaintiffs did not prevail on this discrete claim, which was neither an alternative ground for a successful outcome nor integral to the larger Title VII litigation. Attorneys’ fees and costs therefore may not be awarded to plaintiffs with respect to that claim. C. Scope of Remand Plaintiffs’ only remaining argument against the refund concerns the precise scope of the remand from the court of appeals. Plaintiffs argue that the' court of appeals remanded for a “final determination of the costs and fees owed to the Trout class ” and not for the purpose of determining the costs and fees owed to the Navy. See Memorandum of Points and Authorities in Support of Plaintiffs’ Motion to Dismiss with Prejudice Defendants’ Claim for Recoupment [676] at 2 (emphasis added). The Court disagrees. The Court is not awarding the Navy its costs and fees, of course — the Court is issuing a final determination of the costs and fees actually owed to the Trout class. Following the decision of the court of appeals, the Court concludes that the Trout class is not owed certain of the specific costs and fees which defendants already paid on an interim basis. Plaintiffs therefore must return those interim payments to defendants. III. EXPERT FEES Plaintiffs’ expert, John Chagnon, is a certified public accountant hired by plaintiffs for the sole purpose of determining the proper amount of pre-November 21, 1991 interest owed to the Trout class under Judge Greene’s orders. Congress included expert costs as a part of an award of a prevailing party’s attorneys’ fees. See 42 U.S.C. § 1988(c). Because expert costs are awarded as a part of attorneys’ fees, it follows that a refund of related expert fees awarded will accompany a refund of any attorneys’ fees awarded. By stipulation and order of March 3, 1999[644], defendants agreed to pay for Mr. Chagnon’s services in the amount of $8715, but they reserved their right to seek the recovery of this amount if it were ultimately determined that they did not owe pre-November 21, 1991 interest on backpay or attorneys’ fees — the amount that Mr. Chagnon was hired to calculate. See March 3, 1999 Stipulation [644] at 2. Since Mr. Chagnon was hired and used for the exclusive purpose of helping plaintiffs pursue this unsuccessful claim, see Reply [678] at 14, the payments for his services therefore must be included in the refund. IV. THE IMPACT OF AUSTRIA V ALTMANN
1790389-13772	SPARKS, Circuit Judge. This is an appeal from a decree of the District Court of the United States for the-' Northern District of Illinois dismissing the bill of appellant for want of equity. The controversy is the usual one arising where infringement of patent is charged. The patent alleged to have been infringed, invented by William E. Sharp for “Improvement in Lock-Nuts and Processes of Making the Same,” is No. 1,271,782, and was granted to appellant July 9, 1918. The defenses presented were invalidity of the so-called Sharp patent and no-ninfringement. Tho lower court held there was anticipation of the invention by the disclosure of one Howarth’s patent, No. 321,500, issued July 7, 1885; and, alternatively, that if Howarth did not strictly anticipate Sharp, appellee, in following the teachings of Howarth, did not infringe- Sharp. There were six claims under appellant’s patent, and infringement is charged on tho part of appellee as to each. Typical claims of appellant are No. 1 for the process- and No. 6 for the device. They are as follows : “1. The herein described process of producing ( a lock-nut consisting in forming a blank of substantially equal thickness throughout and solid except for the holt hole with a centrally disposed rectangular shaped ridge of less width than the diameter of tho bolt hole extending across one face thereof intersected by the bolt hole, and forming a thread in said nut, and thereafter placing the same upon a flat surface and applying pressure to the face o-f the ridge, whereby part of the threads in line with the ridge on each side of the bolt hole are modified, the compressed part of the topmost thread in each ease being of a length substantially of the width! of the ridge, and the compressed part of each succeeding modified thread hewing slightly less in length as they approach toward tho other face of the nut.” “6. A lock-nut comprising a threaded bolt nut provided with a centrally disposed flat faced ridge across one face thereof severed by the bolt hole, tho width of the ridge being less than the diameter of the bolt hole, the threads formed in the ridge being slightly compressed toward the other face o-f the nut, each succeeding thread of the nut be neath the ridge being likewise compressed, but successively shortened in length and disappearing within the body of the nut.” The claims under Howarth’s patent, No. 321,500, are as follows: “1. A nut or other analogous article which has internal screw-threads, having one or more of the convolutions of its screw-thread pressed or indented in the direction of the nut-axis, substantially as described, to form a locking device, whereby, when said nut is screwed onto a bolt or other analogous article having an external screw-thread, the indented portion of the thread in the nut will distort or force out of true pitch some portion of the convolutions of the thread on the bolt, as set forth. “2. A nut or other analogous article which has internal screw-threads, having a lump or projection, d) formed on its face,'in which a portion of the screw-thread is formed, whereby, when this lump or projection is hammered down, as described, in the direction of the nut-axis, the threads of the screw in the nut will be distorted, as and for the purposes set forth.” In describing the means by which’ his invention may be carried into effect, Howarth, among other things, says: “One only of the projections d, or more, may be employed as desired, or a projection may be formed around the entire circumference of the edge of the hole through the nut at the outer face thereof when forming the nut-blank, and this projection be hammered or pressed down, so as to press down or indent the convolution or • convolutions of the thread next to the outer face of the nut.” On September 8, 1887, British letters patent for “Improvements in Means for Preventing Nuts and .Bolts from Working Loose,” No. 12,174, were granted to one Bayliss, an associate of Howarth. We quote from the specifications of that patent: “This invention relates to means of dis■torting some of the threads of a nut in order to prevent it working loose upon the bolt, or the holt working loose therein. “According to this invention the nut is formed of an inner end of the ordinary square or hexagon shape and of an outer end of a lesser exterior diameter, and preferably circular in shape, so as to form a shoulder between such parts; or, otherwise, the nut may be formed, of the usual shape and recesses or notches be formed in the outer or top edge thereof so as to form shoulders at their lower or inner ends; and lumps are formed in the angles of the shoulder or shoulders and are forced into the solid metal of the nuts after the threads have been cut therein, by which means some of such threads are distorted and operate, as they are screwed upon the bolts, to firmly lock or hold the nuts upon the bolts; or instead of forcing in the lumps of metal as described the distortion of some of the threads may be effected by punching down metal in the shoulder or shoulders close up to the angle thereof. * * * “The effect produced upon the threads of the nut by the forcing in of the lumps is not in all cases easily to be observed by the eye.' * * * The downward distortion of the threads of the nut acts upon the threads of the bolt, as the nut is screwed up thereon, in a manner tending to force some of the threads slightly out of true pitch or gauge with the remaining threads of the bolt and thus causes the nut to lock firmly on the bolt. This action or result corresponds with that described, with reference to the locking of a nut upon a bolt, in the specification of an invention entitled ‘Improvements in means for preventing nuts and bolts or other screwed parts from working loose’ for which Letters Patent were granted to William Bayliss and Robert Howarth dated the 12th May, 1884, Number 7589'. The inward distortion of the threads, appears to take place more or less around the entire circuit of the threads, but chiefly at the parts thereof which are adjacent to the sites of the lumps, and the effect of such inward distortion is, obviously to cause the nut to bind or grip tightly upon the bolt and thereby increase its holding power. * * * “In all these cases, though the exact effect on the threads of the nuts varies to some extent, the spreading of the metal consequent on the forcing, in of the lumps or the punching in of the metal produces a distortion of some of the threads of the nuts which causes them to lock or bind tightly upon the bolts, and the nuts may be screwed and unscrewed upon the bolts several times in succession without material injury to the threads and still continue to bind tightly on the bolts.” It is observable from Bayliss’s Fig. 1 that the lumps referred to are placed on either side of the bolt hole, one directly opposite the other, although nothing is said in the specifications as to this fact. With the exception of the lumps, appellee’s product, which it is claimed infringes the patent in suit, does not differ materially from the Sharp patent. On the nut mánu-' factored by appellee the lumps are on direetly opposite sides of and contiguous to the bolt bole, and between the corners of the nut and the bolt hole. They do not extend to the outside edge of the nut, and each is in the form of an arc of two concentric eircíes. The inside arc of the lump is almost, but not quite, as long as the diameter of the bolt hole. The outside arc of the lump is as long as, and in some eases longer than, the diameter of the bolt hole. This differenee in lengths of the arcs causes the ends of the lumps to flare. Some of the lumps are flat and some are slightly convex, and they are perhaps not quite so thick as are those of the Sharp patent. They have the appearance of being constructed with not the same precision as to dimensions The testimony of Sharp, the inventor, is that, m effect, the lumps on the two products are exactly the same. It is quite obvious that there is one general principle which governs the operation of each of the nuts above referred to. In each the locking of the nut is caused by friction, and this is brought about by such modifier tion of the threads within the nut as will, when, screwed upon a proper bolt, create sufñcient friction between the threads of the bolt" and the threads of the nut as to' resist loosening from vibration or other forces in usage; and it may be said that each nut is quite successful as a locking device. This method of locking nuts on bolts was in use, in a crude form, many years before either of the patents referred to were applied for. It was accomplished by applying external force upon, the nut bolt after the nut was finally screwed upon the bolt. This had the effect of disarranging or modifying the threads in such a manner as would cause greater friction, the friction being in proportion to the disarrangement of the threads, It not only required extra labor to aecomplish the effect, but the nut could not be removed without great difficulty, and future uso of both nut and bolt was greatly im'paired, if not destroyed. In the course of time it was conceived that tho extra labor eould be eliminated by disarranging the top threads of the nut before use; and when the nut wras placed in its final position the disarranged threads at the top, by friction, would successfully lock it. The effect on the threads, of course, varied in proportion to the force applied. If excessive force was used tho future use of the nut and bolt was destroyed; if less force was used, the locking process was less secure. Even at this stage of the prior art Bayliss observed that .in certain cases the nuts might be screwed and unscrewed upon the bolts several times in succession without material injury to the threads and still continue to bind tightly on the bolts. muSt have -been apparent at this time, eYe:n a layman, that the fitness of the bolt an(j nuj; f0.r future use depended upon the degree' and symmetry of the force applied, This was evidently apparent to Bayliss, for pe used two lumps oppositely positioned, and jn gome eases he used three, and he placed them equidistántly around the bolt hole, This furnished the means for a symmetrical and evenly balanced pressure. • Thus far, in our opinion, the ideas of sharp ^ copied from Bowalth and Bay_ j.¡. remaj;ng ho determined what am0UEd 0f f0,ree is to be applied to effect the locking process and at the same time preservo the bolt and nut for future use; and to what particular places on tho face of the nut such force is to be applied. These two elements relate almost exclusively to the preservation of the nut and bolt, rather than to the locking process, because the principle of tho locking process is the same in all the products, and was in use many years before the existence of the Sharp patent, or any other kindred patent. jg ciaimed by appellant that Sharp discovered the formula by which the desired result is to be obtained, the embodiment of which is fully described in Sharp’s speeifieations Nos. 1 and 6. It is to be observed from Sharp’s specifieati®ns and figures that the ridge or lump extends across "tho face of the nut, is bisected by, and is of less width than, the bolt hole. The ridge is flat and uniform in height. No further dimensions are given, except that he says he has secured very satisfactory results by constructing the ridge substantially 85 per cent, of the diameter of tho bolt hole, and the height of the ridge less than 1 per cent, of the thickness of the nut. An examination of the exhibits of the Sharp patent convinces us that appellant has adhered with precision to these dimension percentages, although we are not informed as to the amount of force necessary to be applied, or whether the same or a different amount of force is used on different nuts. On the other hand, Sharp says that the nut manufactured by appellee produces exactly tho same effect as does the nut manufaetured by appellant, notwithstanding the facts that the lumps on the nut of appellee are much, narrower, some longer and not so high as those on the nut of appellant, and the surface of the lumps is sometimes flat and sometimes slightly convex. It is therefore quite evident that all the' specifications in the Sharp patent cannot be considered as essentials, for the successful use of the nut produced by appellee proves conclusively that it is not necessary for the ridges or lumps to extend to the outer edge of the nut; neither must they necessarily be of the same width or height* Sharp does not say that a lump of greater or less width than 85 per cent, of the diameter may not produce the proper result; he merely says that he has secured very satisfactory results by substantially adhering to those measurements. What did he discover in these particulars that the prior art had not already revealed? Certainly his specifications and testimony disclose nothing other than emphasis of the fact, already suggested by Howarth and Bayliss, that an evenly balanced reasonable pressure upon any sized lumps of the same dimensions, oppositely positioned and adjacent to the bolt hole, will work less damage to the threads on both the nut and the bolt than otherwise. The limit placed by Sharp upon the width of the ridges or lumps is merely another way of saying that pressure shall not be applied to approximately more than 50 per cent, of the circumference of the bolt hole. The height of the ridges acts merely as a gauge to standardize the pressure to be used. We are therefore forced to the conclusion that Sharp discovered no- new thing patentable, but, taught by Howarth and Bayliss, he became' proficient in the application of the ideas which they suggested and patented.
1619874-10486	FRIEDMAN, Circuit Judge. This is an appeal from a decision of the Patent and Trademark Office Board of Patent Appeals and Interferences (Board) which, on remand from this court’s decision in Paulik v. Rizkalla, 760 F.2d 1270, 226 USPQ 224 (Fed.Cir.1985), again awarded priority in this interference proceeding to Rizkalla. We vacate and remand. I A. The following facts pertinent to the issue before us were stated in our prior decision: Rizkalla’s patent application has the effective filing date of March 10, 1975, its parent application. Paulik’s patent application was filed on June 30, 1975.... The Board held and Rizkalla does not dispute that Paulik reduced the invention of the count to practice in November 1970 and again in April 1971. On about November 20, 1970 Paulik submitted a “Preliminary Disclosure of Invention” to the Patent Department of his assignee, the Monsanto Company Despite occasional prodding from the inventors, and periodic review by the patent staff and by company management, this disclosure had a lower priority than other patent work____ In January or February of 1975 the assignee’s patent solicitor started to work toward the filing of the patent application; drafts of the application were prepared, and additional laboratory experiments were requested by the patent solicitor and were duly carried out by an inventor____ The Board then held that Paulik’s four-year delay from reduction to practice to his filing date was prima facie suppression or concealment under the first clause of section 102(g), that since Paulik had reduced the invention to practice in 1971 and 1972 he was barred by the second clause of section 102(g) from proving reasonable diligence leading to his 1975 filing, and that in any event the intervening activities were insufficient to excuse the delay. The Board refused to consider Paulik’s evidence of renewed patent-related activity. Paulik, 760 F.2d at 1271-72; 226 USPQ at 224-25. On appeal to this court, we held that [t]here is no impediment in the law to holding that a long period of inactivity need not be a fatal forfeiture, if the first inventor resumes work on the invention before the second inventor enters the field. ... There is no authority that would estop Paulik from relying on his resumed activities in order to predate Rizkalla’s earliest date. We hold that such resumed activity must be considered as evidence of priority of invention. Should Paulik demonstrate that he had renewed activity on the invention and that he proceeded diligently to filing his patent application, starting before the earliest date to which Rizkalla is entitled — all in accordance with established principles of interference practice — we hold that Paulik is not prejudiced by the fact that he reduced the invention to practice some years earlier. . Id. at 1272-73, 226 USPQ at 225-26 (Fed.Cir.1985). We also held that the Board did not abuse its discretion when it excluded, based on 37 C.F.R. § 1.251(b), certain evidence that Paulik sought to introduce during the rebuttal period, because it was not rebuttal evidence. We also upheld the Board’s decision not to consider a piece of evidence that Paulik had not timely served or moved. The concluding paragraph of our opinion stated: Having established the principle that Paulik, although not entitled to rely on his early work, is entitled to rely on his renewed activity, we vacate the decision of the Board and, in the interest of justice, remand to the PTO for new interference proceedings in accordance with this principle. Paulik, 760 F.2d at 1276, 226 USPQ at 228. B. Following the remand the Board granted Rizkalla but not Paulik the opportunity to seek reopening of his testimony period to take testimony relating to priority, but Rizkalla declined to do so. Paulik sought reconsideration, stating that the ruling was inconsistent with our decision. Paulik requested that both parties be given “a period in which to file respective motions to reopen their respective testimony periods for the purposes of taking priority testimony.” Paulik asserted that our decision remanding the case for “new interference proceedings” required “that the parties to the interference be given equal opportunity to present further evidence in their behalf.” It stated that under our remand “[n]ew proceedings including new assignment of priority testimony periods and briefs for both parties prior to setting a new Final Hearing are appropriate____” The Board denied reconsideration. On the basis of the record in the prior interference proceedings, it again awarded priority to Rizkalla. The Board interpreted our opinion as saying that Paulik “stands in the same position as if he had never actually reduced the invention to practice in 1970 and 1971.” The Board also found that other than the “suppressed actual reductions to practice,” the record was devoid of evidence demonstrating that Paulik had reduced his invention to practice prior to Rizkalla’s filing date. The Board thus held that Paulik was the first to conceive, but the last to reduce to practice. Under “established interference law,” the Board concluded that Paulik could be accorded priority of invention only if he could “establish the exercise of reasonable diligence during the sixteen-week critical period of from just prior to [Rizkalla’s filing date] until his own filing date____” Based upon its examination of the evidence, the Board ruled that because there was a four-week period beginning before and running until after the filing of Rizkalla’s application, during which there was no activity in connection with Paulik’s patent application, Paulik had not shown due diligence during the period from just prior to Rizkalla’s filing date to Paulik’s filing date. According to the Board, under 35 U.S.C. § 102(g) and “established interference law,” Paulik, as the first to conceive and the last to reduce to practice, would be entitled to priority only by showing reasonable diligence during that entire period. II A. In our prior decision we recognized that we were deciding “a question not previously treated by this court or, indeed, in the historical jurisprudence on suppression or concealment.” Paulik, 760 F.2d at 1273, 226 USPQ at 226. For that reason we did not merely vacate the Board’s decision and remand the case for further proceedings, but directed the Board to conduct “new interference proceedings in accordance with this principle,” namely, “that Paulik, although not entitled to rely on his early work, is entitled to rely on his renewed activity — ” Id. at 1276, 226 USPQ at 228. The Board’s action on remand did not comply with that direction. Instead of permitting the parties to introduce additional evidence in new interference proceedings, the Board decided the case on the old record. It did not even permit the parties to file additional briefs to discuss the issues on remand in the light of the new principle we had announced. The Board did not conduct “new” interference proceedings but merely continued the old proceedings. The Board’s opinion suggests that perhaps the Board concluded that because we had upheld its refusal to consider the additional evidence that Paulik had attempted to introduce during the rebuttal period, the Board could not receive new evidence on the remand. Our ruling on the rebuttal evidence merely recognized that the Board had acted within its discretion in excluding that evidence in the context in which it was offered in the prior proceedings. We did not thereby intend to preclude the Board from considering that evidence, or any other relevant evidence the parties might offer, in the new interference proceedings we directed. To the contrary, we intended that the Board should admit and consider all such evidence. B. In response to Paulik’s contention in his brief that the Board improperly refused to permit the introduction of additional evidence, Rizkalla stated in his brief: Paulik told the Board he was happy with the existing record. When, therefore, Rizkalla declined at that time to take priority testimony, there was nothing for the Board to do but to consider the evidence as it existed, particularly the evidence of renewed activity by Paulik “in accordance with established principles of interference practice”, pursuant to the remand by this Court. The Board has thus carried out new interference proceedings in accordance with the remand which are fully consistent with the wishes of Paulik, the Appellant. As mentioned, Paulik specifically requested that matters proceed on the basis of “the existing record.” [Emphasis in the original.] In support of this statement Rizkalla quoted the following portion of Paulik’s request for reconsideration, the same request for reconsideration to which we have previously referred on page 3: ... [I]t is requested that the Board not allow either party to reopen his testimony period and instead establish a new brief schedule for a final hearing in this case based upon the existing record. [Emphasis added by Rizkalla.] These statements by Rizkalla are false and involve a blatant distortion of the record. As noted, in his request for reconsideration, Paulik urged the Board to permit the parties to introduce additional evidence. The passage Rizkalla quoted beginning with the words “[I]t is requested,” contains an ellipsis. When the omitted material that precedes the quotation is reinserted, the entire statement by Paulik reads as follows: Alternatively, should the Board decline the party Paulik et al’s above request that the Board set a period within which both parties may file motions to reopen their respective testimony periods for the purposes of taking priority testimony, it is requested that the Board not allow either party to reopen his testimony period and instead establish a new brief schedule for a final hearing in this case based upon the existing record. Paulik thus specifically requested the Board to reopen the record to permit both parties to present additional evidence. Paulik’s suggestion that the Board decide the case on the existing record was made as an alternative should the Board reject his primary request to reopen the proceeding. Contrary to Rizkalla’s representation, Paulik was not “happy with the existing record” and had not “specifically requested that matters proceed on the basis of ‘the existing record.’ ” The manner in which the Board conducted proceedings on remand was not “fully consistent with the wishes of Paulik.”
3607393-14962	Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court. This case involves the validity of certain bonds issued by the county of Travis in payment to the King Iron Bridge Manufacturing Company for-the construction of a bridge over the Colorado River; and, incidentally, the weight to be given to alleged conflicting decisions of the Supreme Court of Texas as to the validity of such bonds. As bearing upon this question, the following sections of Article XI of the constitution of Texas, upon the subject of “ Municipal Corporations,” are pertinent: “ Sec. 2. The construction of jails, court houses and bridges, and the establishment of county poor houses and farms, and the laying out, construction and repairing of county roads, shall be provided for by general laws.” “ Sec. 7. All counties and cities bordering on the coast of the Gulf of Mexico are hereby authorized, upon a vote of two-thirds of the taxpayers therein, (to be ascertained as may be provided by law,) to levy and collect such.tax for construction of sea walls, breakwaters or sanitary purposes, as may be authorized by law, and may create a debt for such works and issue bonds in evidence thereof. But no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and to provide at least two per cent as a sinking fund; and the condemnation of the right of way for the erection of such works shall be fully provided for.” In apparent compliance with the sections above quoted, the legislature in 1887 enacted the following law, c. 141, § 1 : “ Sec. 1. That the county commissioners’ court of the several counties of this State are hereby authorized and empowered to issue bonds of said county, with interest coupons attached, in such amounts as may be necessary, for the purpose of buying or constructing bridges for public uses within such county, said bonds to run not exceeding twenty years, and bearing interest at any rate not to exceed eight per cent per annum. “ Sec.‘2. The commissioners’ court shall levy an annual ad valorem tax, not to exceed fifteen cents on the one hundred dollars’ valuation, sufficient to pay the interest on and create a sinking fund for the redemption of said bonds. The sinking fund herein provided for shall not be less than four per cent on the full sum for which the bonds are issued.” It is admitted that no provision was made on July 8, 1888, “ at the time of creating ” the debt, for levying and collecting a sufficient tax to pay the interest thereon, and two per cent for a sinking fund, as required by the second clause of section seven, if said clause be applicable to a debt incurred for building bridges. It was alleged in the petition, however, that in the February preceding the commissioners’ court ordered an ad valorem tax of twenty cents for general purposes, and an annual ad valorem tax of fifteen cents for road and bridge purposes; and it also appeared that in the following February (1889) it ordered an annual ad valorem tax of twenty-five cents for general purposes; fifteen cents for road and bridge purposes ; court-house and jail tax of five cents, and an ad valorem. tax of five cents to create a sinking fund for bridge bonds to pay the interest on' said bonds. Plaintiff insisted in the court below that the language of the last clause of section seven, requiring a provision to be made for the levying and collection of a tax to pay the interest and to provide a sinking fund, must be read in connection with the preceding clause of -the section, and, taking the two together, that the last clause must be held to apply only to counties bordering on the Gulf of Mexico. Both the Circuit Court and the Court of Appeals, however, held that the last clause contained a separate and independent provision, and was applicable to the contract made by the county for the building of this bridge, and that, the petition of the plaintiff failing to show compliance with it, the contract was void and the bonds issued without authority of law. Both courts relied upon the construction given by the Supreme Court of Texas in numerous cases to this section of the constitution. It is important in this connection to note that the opinion of the Circuit Court was pronounced on March 13, 1896, and that of the Court of Appeals on June 16, 1897. Since that time, it is asserted that the Supreme Court of Texas has taken a somewhat different view of the law, and an examination of these several decisions becomes important. In the earliest of them, Terrell v. Dessaint, 71 Texas, 770, 773, (1888,) which was an action on a promissory note given by the city in payment for material for water works supplies, it was squarely held that the last clause of section, seven, above quoted, must be held to apply to all cities alike, and that the clause contained no word or words which restricted its application to the cities previously mentioned in the same section. “The language is general and unqualified,” said the court, “and we find nothing in the context to indicate that the framers of the .constitution did not mean precisely what it said; that is, that no city shall create any debt without providing, by taxation, for the pajment of the sinking fund and interest.” It was also held that a debt of $1500 for materials to extend its water works was within the clause in question, and that as the current expenses proper of the city exceeded its resources for general purposes, and no appropriation was made for the payment of this debt, there could be no recovery. In Bassett v. El Paso, 88 Texas, 168, (1895) it was held that the language and purpose of the constitution were satisfied by an order for the annual collection by taxation of a “ sufficient sum to pay the interest thereon and create a sinking fund,” etc., although it did not fix the rate or per cent of taxation for each year by which the sum was to be collected, but left the fixing of such rate for each successive year to the commissioners’ court or the city council. It was contended that the ordinance, which provided for the issue of water works bonds, was void, because it did not levy a tax, but delegated to the assessing and collecting officers the power to make such levy from year to year. But it was said that “ to so construe these provisions as to require, at the time the debt is created, the levy of a fixed tax to be collected through a long series of years, without reference to the unequal ‘sums’ that would in all probability be realized therefrom, instead of the collection annually of a certain ‘ sufficient' sum ’ to pay the annual interest and create the sinking fund required by law,' would be doing violence to the language used, and authorize, in cases where values rapidly increase, the extortion from the taxpayers of large amounts of money in excess of the amount necessary to satisfy, the interest and principal of the bonds, and this in turn would invite municipal corruption and extravagance.” In McNeal v. Waco, 89 Texas, 83, (1895) plaintiff sued the city of Waco on. a contract for building cisterns for fire protection, to recover the contract price for one and damages for refusing to allow him to complete the others. • The petition failed to show a provision for taxes to pay interest and a sinking fund, or an existing fund for the payment; nor did the contract show facts from which the court could say that it was an item of ordinary expenditure. It was held that a general demurrer to the petition should have been sustained, and it was also held that the word “debt” included every pecuniary obligation imposed by contract outside of the current expenditures for the year. To same effect is Howard v. Smith, 91 Texas, 8. Such was the construction placed by the Supreme Court, of Texas upon the constitutional provision at the time when the case under consideration was decided by the courts below. It was held by the Circuit Court that the county commissioners’ court should have made provision at the time the contract was executed, July 3, 1888, by levy of a tax or otherwise for a sinking fund, and the interest on the bonds issued for the erection of the bridge; that the levy made by the commissioners’ court in February, 1888, could not be held applicable to the bonds in controversy, for the manifest reason that the contract for' the erection of the bridge was not then in existence nor even in the contemplation of the parties, so far as the allegations of the petition disclosed; that the general levy made in February, 1889, could not be held applicable to the bonds of the bridge company for two reasons: first, because it was made some six months after the execution of the. contract; and, second, because the order of the commissioners’ court, authorizing the levy, ma.de no 'reference whatever to the bonds in controversy nor to the contract between the county and the bridge company. The Circuit Court of Appeals came practically to the same conclusion. Since these cases were decided, however, the Supreme Court of Texas has put a construction upon the constitution which fully supports the position of the plaintiff in this case. In Mitchell County v. Bank of Paducah, 91 Texas, 361, decided in January, 1898, the action was upon interest coupons attached to bonds issued by the county for the purpose of building a court house and jail, and upon others for constructing and purchasing bridges. An act had been passed in 1881 with reference to the creation of court house debts similar to the act subsequently passed in 1887 respecting bridge bonds, a copy of which is given above. The same defence was made — that at the time of the creation of the debts the county made no provision for levying and collecting a sufficient tax to pay the interest and sinking fund, although for the year 1881 the court levied a court house and jail tax of twenty-five cents on the one hundred dollars, repeated during subsequent years, and increased to fifty cents; and every year after the issue of the bonds for bridge purposes the court lévied fifteen cents on the one hundred dollars as a tax for road and bridge purposes. It was held, quoting Bassett v. El Paso, 88 Texas, 168, 175, that it was unnecessary to ascertain the rate per cent required to be levied in order to raise the proper sum and to actually levy that rate of tax at the time; that if the laws of 1881 and 1887 had never been passed, the county would have had no authority under the constitution to contract the debts represented by the bonds, nor to levy a tax for the payment of the interest and sinking fund on such debts. The power to do so could be derived from the legislature only. “ We understand,” said the court, “ that the provision required by the constitution means such fixed and definite arrangements for the levying and collecting of such tax as would become a legal right in favor of the bondholders of the bonds issued thereon, or in favor of any person to whom such debt might be payable. It is not sufficient that the municipal authorities should by the law be authorized to levy and collect a tax sufficient to produce a sinking fund greater than two per cent, but to comply with the constitution the law must itself provide for a sinking fund not less than two per cent, or require of the municipal authorities to levy and collect a tax sufficient to produce the minimum prescribed by the constitution.” It was held that the laws of 1881 and 1887, having been enacted for the purpose of putting into force the constitutional provisions, it was the duty of the courts to so construe the laws as to make them valid and give effect to them. The court came to the conclusion that these laws did make such provision for the levying and collecting of a tax as was required by the constitution, and that, in case the court had refused to levy the tax after the bonds were issued and sold, the bondholders would have been entitled to a mandamus to compel the commissioners’ court to levy such tax as purely a ministerial duty. The bonds, with certain immaterial exceptions, were held to be valid obligations of the county. It is quite evident that if this case had been decided and called to the attention of the courts below, the validity of the bonds involved in this action would have been sustained, and the main question involved in this case is whether we shall give effect to this decision of the Supreme Court of Texas, pronounced since the case under consideration was decided in the courts below, and giving, as is Claimed at least, a somewhat different construction to the constitution of the State.- ■ We do not ourselves perceive any such inconsistency between the case of Mitchell County v. Bank of Paducah, and the earlier cases, as justifies the county, in the case under consideration, in claiming that the Supreme Court of Texas had overruled the settled law of the State and set in motion a new departure. No such inconsistency is indicated in the opinion in the Mitchell County case; so far as the prior cases are cited at all they are cited with approval, and there is certainly nothing to indicate that the court intended to overrule them. That court had not changed in its personnel since the prior judgments, except the first, were pronounced, and it is not probable that the judges would have changed their views without some reference to such change. Indeed, but one of the earlier cases was cited in the Mitchell County case, (Bassett v. El Paso, 88 Texas, 168,) and that supports rather than conflicts with the opinion. As we read them, they merely decided that some provision for payment must be made. In the Mitchell County case the question was for the first time presented whether the laws of 1881 and 1887 were constitutional, and whether action taken under these laws was an adequate compliance with the requirement that provision should be made “at the time of creating” the debt for a sufficient tax to pay the interest and to provide a two per cent sinking fund. It was held that they were. This overruled nothing, because the question had never before been decided, and the point was not made, in the courts below in this case. We are simply called upon, then, to determine what is the law of Texas upon the subject, since, under Revised Statutes, section 721, the “laws of the several States . . . shall be regarded as rules of decision in trials at common law in the courts of the United States.” While; if this case had been brought before this court befo're the decision in the Mitchell County case, we might have taken the view that was taken by the courts below, treating the question as one hitherto unsettled in that State, we find'ourselves relieved of any embarrassment by the decision in the Mitchell County case, which manifestly applies to this case and requires a reversal of their judgment.
9423811-22874	MEMORANDUM OPINION DONALD R. SHARP, Chief Judge. NOW before the Court is the Plaintiffs Motion For Summary Judgment filed by The Hardesty Company, Inc. d/b/a Mid-Continent Concrete Co. (“Plaintiff’). The Court considered the pleadings filed and the evidence adduced. This opinion constitutes the Court’s findings of fact and conclusions of law to the extent required by Fed.R.Bankr.Proc. 7052 and disposes of all issues before the Court. FACTUAL AND PROCEDURAL BACKGROUND The dispute originated when Mark A. Edwards, the Defendant (“Debtor” or “Edwards”), the Debtor in the main case, was president of Edwards Construction Co., a construction company(“ECC”), working in Oklahoma. The Hardesty Company (“THC”) d/b/a Mid-Continent Concrete Company (“Mid-Continent”) supplied concrete to ECC in Oklahoma on the Palazzo Apartments project. The Debtor was a managing officer while the Palazzo work was being performed. ECC owed THC money for materials supplied to the Palazzo project. Defendant’s Motion for Judgment filed on August 9, 2001, p. 2. On or about January 21, 2000, Williams Industries, Inc., the general contractor for the Palazzo Apartments project, issued Check No. 43490, payable to Edwards Construction and Mid-Continent in the amount of $153,985.98. The Williams Industries, Inc., check was presented to Mid-Continent for endorsement and Mid-Continent was given ECC’s check # 17512, payable to Mid-Continent in the same amount, drawn on ECC’s account at Legacy Bank, Texas. Ex. D2 to the Defendant’s Motion for Judgment, Affidavit of Mark Edwards. Mid-Continent’s credit manager, F.T. Milroy, endorsed the check. Ex. D. to the Defendant’s Motion for Judgment, Plaintiff’s Responses to Defendant’s Motion for Judgment. Mr. Milroy executed a release of lien. Ex. A to Defendant’s Motion for Judgment. Thereafter, on January 27, 2000, ECC’s check was returned to Mid-Continent for insufficient funds on January 27, 2000. THC 'filed suit against Edwards, as an individual, Williams Industries and Hartford Fire Insurance Company in the District Court In And For Tulsa County, State of Oklahoma (C/J. No.2000-02726). Although Edwards was served, he neither answered nor appeared. Ex. C to the Defendant’s Motion for Judgment. On August 7, 2000, THC obtained a Default Judgment against the Debtor for $153,985.98 in actual damages, prejudgment interest at the rate of 18% per an-num from January 21, 2000 to August 7, 2000, in the amount of $14,883.91, attorneys’ fees in the amount of $7,335.05, costs in the amount of $199.00 and post-judgment interest at the prevailing rate. Defendant’s Motion for Judgment, p. S. At the hearing,’ the issue on the amount of punitive damages on Counts Two and Three (i.e. fraud and violation of 42 Okla. St. § 152 ) was reserved. Ex.C. to the Defendant’s Motion for Judgment. On September 14, 2000, the Court entered a Judgment Awarding Exemplary Damages in favor of THC against Mark Edwards. The Debtor filed a voluntary petition under Ch. 7 on December 1, 2000. Thereafter, THC filed its Complaint To Determine Dischargeability of Debts objecting to the discharge of Edwards’ debt to THC (the “Complaint”). Thereafter, Plaintiff filed the Motion for Summary Judgment now before the Court for consideration. Defendant responded and the matter was set for hearing on a regular setting. DISCUSSION Summary Judgment is appropriate in bankruptcy proceedings when there is no genuine issue of material fact and moving party is entitled to judgment as a matter of law. In re McCafferty, 96 F.3d 192 (6th Cir.1996). The burden of establishing the nonexistence of a “genuine issue” is on the party moving for Summary Judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). One cannot rest on the mere allegations of the pleadings. In Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Court held that (1) only disputes over facts that might legitimately effect the outcome are material under Rule 56; (2) the test for determining whether a genuine issue of material fact exists is the same as the test for granting a directed verdict (i.e. whether the evidence is sufficient to sustain a verdict for the non-moving party); and (3) in applying the test the court must view the evidence in the light most favorable to the non-movant and assess its sufficiency according to the evidentiary burden imposed by the controlling substantive law. Under Rule 56(e), the burden shifts. Rule 56(e) requires the opposing party to “set forth specific facts” that demonstrate the existence of a genuine issue for trial. The Complaint, as amended, seeks this Court’s entry of an order holding THC’s claims against Edwards nondisehargeable under 11 U.S.C. §§ 523(a)(2)(A), (a)(4) and (a)(6). THC argues that Edwards’ debt to THC is non-dischargeable under Id U.S.C. § 523(a)(2)(A) because it is “a debt for money, property or services obtained by false pretenses, a false representation or actual fraud.” The fraudulent scheme perceived by THC is the exchange of a check for which there was insufficient funds in consideration of. the endorsement of the Williams’ check and release of liens. THC further contends Edwards violated his fiduciary duty to Mid-Continent by failing to use the funds held in trust to pay Mid-Continent its “lienable” claims: “[bjecause of this violation of a fiduciary duty, Mark Edwards’ debt to Mid-Continent cannot be discharged under section 523(a)(4) of the Bankruptcy Code because [the] debt is ‘for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny.’ ” THC avers the debt is non-dis-chargeable pursuant to § 523(a)(6) as it was for “willful and malicious injury by the debtor to another entity or to the property of another entity”. The standard of proof for allegations under § 523 is by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 661 112 L.Ed.2d 755(1991); In re Townsley, 195 B.R. 54(Bkrtcy.E.D.Tex.1996). The burden is on the objecting party. The Court has scrutinized the Plaintiffs Motion for Summary Judgment, the exhibits attached in support of same, the Debt- or’s response to same and the record in this case and concludes the motion should be granted. This Court is of the opinion that Edwards seeks to re-litigate in the bankruptcy forum the state court’s determination as to whether, as president of the company, he had the requisite authority and involvement in the process to be found actually liable for and personally liable for the corporate debts. At this point, such arguments are immaterial because this Debtor is faced with a judgment against him by a court of competent jurisdiction'— the issues have already been litigated. Thus, the issues this Court must examine are: whether issue preclusion, or collateral estoppel, applies to the findings of the Oklahoma state court and whether this Court must re-litigate the factual issues or may adopt the findings of the Oklahoma state court and determine whether the debt is non-disehargeable. Generally, a default judgment will not be granted preclusive effect because none of the issues was actually litigated. The “actual litigation” requirement of collateral estoppel may be satisfied if the party was afforded a reasonable opportunity to defend himself on the merits but choose not to do so. See Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319, 1324 (11th Cir.1995). The history of this issue in the Fifth Circuit, which is controlling here, was discussed by a Mississippi Bankruptcy Court: The failure of a defendant to attend the trial does not prevent issue preclusion in a subsequent action, so long as the prior action was actually litigated in the defendant’s absence. In Garner v. Lehrer (In re Garner), 56 F.3d 677 (5th Cir.1995), the Fifth Circuit, applying Texas law on collateral estoppel, gave preclu-sive effect to a prior state court judgment even though the defendant failed to appear at the trial. In the opinion, the court made a distinction between a “simple default judgment” and a “post-answer default.” Once an answer is filed, the plaintiff is unable to obtain a simple default judgment and must offer evidence to satisfy the burden of proof as to the elements of the action. Lehrer had sued Garner in state court. Garner answered the complaint, but did not appear at the trial, and a judgment was entered against him. Garner then filed bankruptcy which prompted the filing of a dischargeability complaint by Lehrer. Lehrer then moved for summary judgment based on the preclusive effect of the state court judgment. In response, Garner asserted that the “fully and fairly litigated” element of issue preclusion had not been met since the trial had been conducted in his absence. In affirming the bankruptcy court and the district court, the Fifth Circuit stated as follows: In the state court proceedings, Garner answered Lehrer’s complaint with a general denial, and then he failed to appear for trial. The district court conducted a trial in Garner’s absence, and “based on the testimony presented to the Court, the Court f[ound] and conclude[d] that Plaintiff, Kenneth Eugene Lehrer [was] entitled to recover judgment against Defendants.” This decision was reached after Garner answered Lehrer’s complaint and after a trial in which Lehrer put on evidence sufficient to carry his burden of proof. According to Texas law, the issues were properly raised and actually litigated; accordingly, we find they were fully and fairly litigated for collateral estoppel purposes. Garner v. Lehrer (In re Gamer), 56 F.3d 677, 680 (5th Cir.1995). Subsequent to Gamer v. Lehrer, the Fifth Circuit appears to have dropped the distinction between a “simple default” and a “post-answer default” for collateral estoppel purposes. In Pancake v. Reliance Insurance Co. (In re Pancake), 106 F.3d 1242 (5th Cir.1997), Pancake, a bank loan officer, was accused by Reliance of loaning money to borrowers that he knew to be poor credit risks in exchange for kickbacks. Reliance, a surety for the bank, sued Pancake in state court alleging fraud. Pancake filed an answer which was stricken because he had failed to comply with certain discovery orders. Pancake did not appear at trial and a default judgment was entered against him. When Pancake subsequently filed bankruptcy, Reliance filed its complaint to determine the dischargeability of the default judgment. The bankruptcy court granted summary judgment for Reliance. On appeal, the district court reversed, stating that the default judgment was not entitled to preclusive effect. The Fifth Circuit affirmed the district court, concluding that preclusive effect could not be given to the state court judgment because it was unclear from the record whether or not an evi-dentiary hearing was held in which Reb-anee was required to meet its burden of proof. “The only indication that the state court held a hearing comes from the final judgment, in which the court states that it heard ‘the evidence and arguments of counsel.’ That statement alone does not establish that Pancake received a full and fair adjudication on the issue of fraud.” Id. at 1244. The court went on to state that the nature of a default judgment is immaterial for collateral estoppel purposes so long as the record reflects that an evidentiary hearing was conducted, and the plaintiffs burden of proof was met. For purposes of collateral estop-pel. . .the critical inquiry is not directed at the nature of the default judgment, but, rather, one must focus on whether an issue was fully and fairly litigated. Thus, even though Pancake’s answer was struck, if Reliance can produce record evidence that the state court conducted a hearing in which Reliance was put to its evidentiary burden, collateral estoppel may be found to be appropriate. Id. at 1245. In re Evans, 252 B.R. 366, 369-70 (Bkrtcy.N.D.Miss.2000). See also, In re O’Neill, 260 B.R. 122 (Bkrtcy.E.D.Tx.2001) applying the standards of Pancake. The Tenth Circuit, authority for the Oklahoma Courts in which the default judgment was obtained, discussed the parameters of what constitutes a matter being “fully and fairly litigated”: “In Jordan Bus Co., we [the Tenth Circuit Court] concluded that the respondent had received a meaningful opportunity to prepare and present its case. See NLRB v. Jordan Bus Co., 380 F.2d 219, 224 (10th Cir.1967). In that case... the respondent was afforded actual notice in time to present evidence on the issue at the evidentiary hearing. See id. at 223. Because the respondent had actual notice prior to the evidentiary hearing, we proceeded to determine whether the evidentiary record was complete with regard to the challenged issue and whether any prejudice to the respondent resulted.” N.L.R.B. v. I.W.G., Inc., 144 F.3d 685, 688 (10th Cir.1998). Whether this Court applies the Fifth Circuit standard or the Tenth Circuit standard, the result will be the same. The undisputed facts before this Court are that following the entry of the default judgment, an evidentiary hearing was conducted by the Court on damages. Edwards was properly served but failed to appear. The Judgment Awarding Exemplary Damages recites that “After reviewing the court file, and hearing the evidence and arguments of the plaintiff, the Court finds.... ” [emphasis added]. Unlike the Pancake facts, the Judgment against Edwards indicates that the Court took oral testimony, it names the witnesses called and mentions documentary evidence offered. From this part of the record, this Court must find that THC met its evidentiary burden in the Oklahoma District Court. This Court must give full faith and credit to the findings of the Oklahoma Court. The Court found most specifically (Page 2, Para. 3 of the Judgment): “Mark Edwards acted intentionally and with malice towards Mid-Continent as provided in 23 Okla. Stat. § 9.1... ”. The Court entered the Judgment as a final judgment. It is true that the Oklahoma Court did not use the word “willful” but referred to Edward’s actions as “intentional.” If one analyzes this language under the standards used by the Fifth Circuit in Miller and Delaney, it is clear that Edward’s actions are “willful and malicious.” The Court found that Edwards intentionally diverted the sub-contractor’s funds. He had to intend or know for an absolute certainty that they would suffer the exact damage they have suffered as a result of that act. Had Edwards had a reasonable defense to the allegations against him, the time to have presented and argued his case was at the trial, at the evidentiary hearing or on appeal in a timely fashion. The evidence before this Court is that the matter was “fully and fairly litigated” and that the Defendant had ample opportunity to participate and chose not to do so. CONCLUSION At the Oklahoma court’s hearing on exemplary damages, the Court took both oral testimony and documentary evidence and found that Edwards acted “intentionally and with malice towards Mid-Continent. ..” ( Judgment Awarding Exemplary damages, Ex. SC to the Plaintiff’s Motion for Summary Judgment, at para. S.) causing THC to incur damage. This Court has no choice but to give full faith and credit to the findings of the Oklahoma court. The Defendant, Mark A. Edwards, has not appealed that ruling and it is now a final ruling. There has been a clear statement from the Oklahoma court that the Plaintiff was put to its burden of proving the essential element that must be proven in this adversary proceeding on the § 523(a)(6) claim: that the debt arose because of the intentional, i.e. willful, and malicious acts of the Debtor. The Oklahoma court’s judgment is preclusive on the issue of whether there were willful and malicious acts by the debtor, and, therefore, it is preclusive on the non-discharge-ability of the debt to THC. The issues Mr. Edwards has raised are not material issues that might result in an alternative ruling. This Court need not re-litigate such issues. The Plaintiff has met its burden and the relief requested by the Plaintiff, must be GRANTED. Granting the summary judgment that the debt of Mark Edwards to THC is non-dischargeable under § 523(a)(6) renders moot any outstanding issues related to § 523(a)(2)(A) and (a)(4). An order will be entered accordingly. .Edwards denies he was a managing officer "when all receipt of all payments were received”, but he admits being a managing officer on January 21, 2000 the date of the payment in question. Debtor’s Responses to Requests for Admissions. Edwards Construction Co. is the Debtor in Case No. 00-41194-7 pending before this Court. . The Defendant's Motion for Judgment provides the basis for numerous "undisputed” facts in the chronology of events set forth herein. . "(1) The amount payable under any building or remodeling contract shall, upon receipt by any contractor or subcontractor, be held as trust funds for the payment of all lienable claims due and owing or to become due and owing by such contractors or subcontractors by reason of such building or remodeling contract.” 42 Okla. St. § 152(1). . On August 9, 2001, Defendant filed a Motion For Judgment Under Rules 12(c) and 56 of the Federal Rules of Civil Procedure. Plaintiff filed a response to same. At the hearing on the Defendant's Motion For Judgment Under Rules 12(c) and 56 of the Federal Rules of Civil Procedure, the Court inadvertently made references to the Plaintiff’s Motion For Summary Judgment. Therefore, that bench ruling was vacated as premature and the Court entered a written Memorandum Opinion and Order on the Defendant's Motion superceding the oral ruling. The Plaintiff's Motion remains on the Court’s docket for October 9, 2001, although there is no impediment to entering an order and opinion of Plaintiff's Motion, given that a response has been filed and it is not the custom of this Court to entertain oral argument at hearings on summary judgment. Regulation 7056, Local Regulations of Chief Judge Donald R. Sharp. Local Rules of United States Bankruptcy Court for the Eastern District of Texas, Appendix 1001(g). . Under 11 U.S.C. § 523 entitled "Exceptions to discharge”: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services or an1 extension, renewal or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; ... (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny;... [or] ió) for willful and malicious injury by the debtor to another entity or to the property of another entity[.] 11 U.S.C. § 523(a). . In order to prevail in a dischargeability action under § 523(a)(4), a plaintiff must prove: (1) that the debt arose while the debt- or was acting in a fiduciary capacity and (2) that the debt was incurred by fraud, defalcation, embezzlement, or misappropriation. In re Wolfington, 48 B.R. 920, 923 (Bkrtcy.E.D.Pa.1985). It is well established that a corporate officer is a "fiduciary” of the corporation within the meaning of § 523(a)(4). Id. at 924; In re Cowley, 35 B.R. 526, 528 (Bkrtcy.D.Kan.1983). It is also clear that "defalcation” is a broader term than embezzlement or fraud. It can be a mere deficit resulting from the debtor's misconduct, even though he derived no personal gain therefrom. Id. at 529; Matter of Moreno, 892 F.2d 417, 421 (5th Cir.1990). In re Townsley, 195 B.R. 54, 63 (Bkrtcy.E.D.Tex.1996). . See Matter of Miller, 156 F.3d 598, 603 (5th Cir.1998), cert. denied., in which the Fifth Circuit discussed its standard for "willful” and "malicious” for purposes of non-dis-chargeability subsequent to the Kawaauhau v. Geiger ruling concluding there must be either an objective substantial certainty of harm or a subjective motive to cause harm: "The Supreme Court recently answered the 'pivotal question' of whether § 523(a)(6) covers ‘acts, done intentionally, that cause injury ... or only acts done with the actual intent to cause injury.’ ” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998). The Court’s conclusion was that "[t]he word 'willful' in (a)(6) modifies the word 'injury,' indicating that nondischarge-ability takes a deliberate or intentional injury, not merely a deliberate or intentiqnal act that leads to injury.” Id. This conclusion was similar to one that the Fifth Circuit had reached in analyzing § 523(a)(6). In Corley v. Delaney (In re Delaney), 97 F.3d 800 (5th Cir.1996), this court reaffirmed its earlier holding that "for willfulness and malice to prevent discharge under § 523(a)(6), the debt- or must have intended the actual injury that resulted” and not just performed an intentional act that resulted in injury. Id. at 802.... The Supreme Court's disposition in Kawaau-hau certainly eliminates the possibility that "willful” encompasses negligence or recklessness. See Kawaauhau, 523 U.S. at 63-64, 118 S.Ct. at 978 ("We hold that debts arising from recklessly or negligently inflicted injuries do not fall within the compass of § 523(a)(6).”). At least three remaining readings are possible. The standard might be met by any tort generally classified as an intentional tort, by any tort substantially certain to result in injury, or any tort motivated by a desire to inflict injury. We hold that the label "intentional tort” is too elusive to sort intentional acts that lead to injury from acts intended to cause injury. Rather, either objective substantial certainly or subjective motive meets the Supreme Court’s definition of "willful ... injury” in § 523(a)(6). The category of intentional torts, however, is broader. The Supreme Court did specifically refer to intentional torts, noting that "the (a)(6) formulation triggers in the lawyer's mind the category 'intentional torts,' as distinguished from negligent or reckless torts.” Kawaauhau, 523 U.S. at 61-63, 118 S.Ct. at 977 .[W]e hearken back to this original definition of "intentional tort” to determine whether injury is "willful” for § 523(a)(6) purposes. This test is fully consistent with our precedent. Delaney, which remains good law because the Supreme Court in no way contradicted it, equated intending actual injury to a situation in which "the debtor intentionally took action that necessarily caused, or was substantially certain to cause, the injury.” Delaney, 97 F.3d at 802. Although Delaney did not address whether a subjective motive to injure would alternatively be sufficient to trigger § 523(a)(6), it would seem peculiar to deem an action causing injury not "willful” when the tortfeasor’s action was in fact motivated by a desire to cause injury. Matter of Miller, Supra, at 603.
3247551-4885	MEMORANDUM WALTER E. HOFFMAN, Chief Judge. This action, filed under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), on August 25, 1970, alleges injuries sustained by the infant plaintiff, Richard Muldez, arising out of the negligence of the defendant when the plaintiff and his friend found shells, on October 14, 1967, among the sand dunes and dugouts near the beach at the Naval Amphibious Base, Little Creek, Virginia. One week later, on October 21, 1967, the infant plaintiff was attempting to cut one of the shells when it exploded, injuring the plaintiff and destroying the use of his right eye. We may assume that the right of action accrued on the latter date. The defendant filed a motion to dismiss which has been converted into a motion for summary judgment. The motion touches the jurisdiction of the court in that no administrative claim in writing for money damages in a sum certain was filed with the Department of Navy, the latter being the appropriate agency with whom such a claim should have been filed. The administrative claim in writing for a sum certain was finally filed on November 25, 1969. By that time the two-year period for filing claims had expired. The minority of the plaintiff affords no protection to plaintiff under the Federal Tort Claims Act. Concededly the Department of Navy knew of the accident and resulting injury, as well as the intention to file an administrative claim, long prior to the expiration of the two-year period. As early as August 28, 1968, the Claims Attorney for the Navy wrote to the plaintiff’s attorney forwarding the complete medical record from the Portsmouth Naval Hospital, and requesting a statement of facts as to how the boy came into possession of the shell. In the sequence of events, the attorney did not reply until February 1, 1969, at which time he said in part: “It is my understanding that there may be a requirement that we proceed administratively before we proceed with litigation.” While the record does not reflect a written reply, and we do not know whether the Claims Attorney may have telephoned the attorney, it is apparent that the factual statement requested by the letter of August 28, 1968 was not sent to the Claims Attorney until an associate attorney wrote a letter on June 19, 1969, forwarding the boy’s statement of what happened. This letter further said: “We would wish to expedite this matter and appreciate your forwarding to me the proper forms so that a claim may be filed now. Then the suit may be brought, if necessary.” The Claims Attorney immediately replied by letter dated June 20, 1969, forwarding four copies of Standard Form 95 “for use in filing a claim.” Nothing further was done until another associate, by letter dated November 6, 1969, requested additional copies of Standard Form 95. These were furnished by the Claims Attorney’s letter of November 13, 1969. Thereafter, as previously noted, the written claim dated November 25, 1969, was received by the Claims Attorney in late November. We will assume, for the purposes of this case, that the claim was filed on November 25, 1969. Since the claim arose after January 17, 1967, the required filing of a written claim is governed by the amendment to 28 U.S.C. § 2401(b) and 32 C.F.R. § 750.7. This provides that claims must be presented in writing within two years after the cause of action arises. Under 32 C.F.R. § 750.16h, the claim must be presented on Standard Form 95, or by written notification, together with a claim for money damages in a sum certain. Even if, by any stretch of the imagination, we could conclude that the prior correspondence constituted a “written notification,” there was no claim for money damages in a sum certain until Standard Form 95 was filed on November 25, 1969. Johnson v. United States, 404 F.2d 22 (5 Cir. 1968). It was this Court’s decision in Cole v. United States, 170 F.Supp. 90 (E.D.Va. 1959), which partially prompted the amendment to 28 U.S.C. § 2401(b) and the promulgation of 32 C.F.R. § 750.16h (a). Plaintiff argues that the Navy never* called attention to the fact that the “written notification” of an incident must contain a claim for money damages “in a sum certain.” Aside from the fact that there was no duty to do so, Standard Form 95 was sent to plaintiff’s attorney in ample time to have permitted a timely claim to be filed as the Claims Attorney’s letter of June 20, 1969 so indicates. The promulgation of 32 C.F.R. § 750.16h has the full force and effect of law. The mere fact that the Code of Federal Regulations was not readily available to plaintiff is no excuse. It is available in Norfolk. We think that plaintiff’s argument to the effect that the Navy is estopped from raising the point is to no avail. We cannot agree that the Claims Attorney had any “duty to speak” other than to provide the form as requested, all of which he did very promptly.
12523236-26798	Percy Anderson, UNITED STATES DISTRICT JUDGE This action involves allegations of trademark and trade dress infringement asserted by plaintiff Oleg Pogrebnoy ("Pogrebnoy") against defendants Russian Newspaper Distribution, Inc., MMAP, Inc., Vitaly Matusov ("Matusov"), and Alexander Ginzburg ("Ginzburg") (collectively "Defendants") arising out of the publication of a Russian language newspaper titled "Kypbep" in Cyrillic and translated by Pogrebnoy as "courier" in English. Pogrebnoy, appearing pro se, commenced this action on November 9, 2010. In his First Amended Complaint ("FAC"), Pogrebnoy alleged claims for: (1) trademark infringement under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) against Defendants; (2) trade dress infringement under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) against Defendants; (3) cancellation of a federal trademark registration for "LAKurier.com" pursuant to 15 U.S.C. § 1064 against defendants Russian Newspaper Distribution, Inc. and Ginzburg; and (4) unfair competition against Defendants. The parties filed cross-motions for summary judgment. In a June 28, 2011 Minute Order, the Court concluded that Pogrebnoy had not provided admissible evidence of the transfer of his asserted intellectual property rights from one of the entities in the purported chain of title to another of the predecessor entities. As a result, the Court concluded that Pogrebnoy lacked standing to pursue his claims and entered Judgment in favor of Defendants. On November 14, 2013, the Ninth Circuit issued a Mandate reversing the entry of Judgment and, among other things, directed the Court "to address alternate theories of standing, including whether Pogrebnoy acquired an ownership interest in the Kurier mark on the basis of an assignment from his wholly-owned company, which had priority of use of the mark over defendants, or whether Pogrebnoy was a nonowner with a cognizable commercial interest in the Kurier mark." Pogrebnoy v. Russian Newspaper Distrib., Inc., 536 Fed.Appx. 737, 738 (9th Cir. Aug. 5, 2013) (citing Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1225-26 (9th Cir. 2008) ). The Court, sitting without a jury, conducted a bench trial on February 25, 2014, September 2, 2014, and September 3, 2014. The parties submitted trial declarations, the Court took evidence, and allowed for cross-examination of the parties' witnesses. Following the trial, the parties submitted proposed Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a). Defendants also filed a Motion for Judgment on Partial Findings Pursuant to Federal Rule of Civil Procedure 52(c) (Docket No. 179). The Court issued Findings of Fact and Conclusions of Law and a Judgment on December 18, 2014. One of several alternative bases for the Court's conclusion that Pogrebnoy had failed to satisfy his burden of proof on his claims was that Pogrebnoy had failed to establish by a preponderance of the evidence that he was the first to use the Kypbep mark in the relevant Los Angeles-area market. This holding was premised on the Tea Rose-Rectanus doctrine involving the priority of use of a mark in a geographic area. See Grupo Gigante SA De CV v. Dallo & Co., 391 F.3d 1088 (9th Cir. 2004). Pogrebnoy appealed the Court's Judgment. In a Memorandum Disposition issued on July 13, 2017, the Ninth Circuit affirmed in part, reversed in part, and remanded the action to this Court because, after this Court issued its Findings of Fact and Conclusions of Law, the Ninth Circuit had concluded that the Tea Rose-Rectanus doctrine does not apply where the junior user had knowledge of the senior user's prior use. See Stone Creek, Inc. v. Omnia Italian Design, Inc., 875 F.3d 426(9th Cir. 2017). Specifically, the Ninth Circuit reversed and remanded the action with directions that this Court: [G]ive further consideration to Pogrebnoy's trademark infringement claim. On remand, the district court should also reconsider whether Pogrebnoy expressly or implicitly granted Matusov a license to use the Kypbep mark and whether Pogrebnoy is entitled to damages or injunctive relief. (9th Circuit's Memorandum at 2, Docket No. 209.) The Ninth Circuit affirmed this Court's classification of Kypbep as a descriptive rather than suggestive mark. The Ninth Circuit also affirmed several of this Court's evidentiary and procedural decisions and this Court's conclusion that Pogrebnoy failed to prove a claim for trade dress infringement. After issuance of the Ninth Circuit's Mandate, this Court ordered the parties to file briefs with argument concerning the issues the Ninth Circuit instructed this Court to reconsider. The Court has considered those briefs and again reviewed the evidence and testimony presented by the parties during the 2014 Court Trial. Having considered the materials submitted by the parties, observed the witnesses during cross-examination, and after reviewing the evidence, the Court makes the following Revised Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a) on the issues the Ninth Circuit remanded to this Court to reconsider. Any finding of fact that constitutes a conclusion of law is hereby adopted as a conclusion of law, and any conclusion of law that constitutes a finding of fact is hereby adopted as a finding of fact. I. FINDINGS OF FACT 1. Pogrebnoy's FAC alleges that his trademark, which is unregistered, "consists of the Russian word 'Kypbep.' " (FAC ¶ 1.) 2. "Kypbep" is the Russian equivalent of the English word "courier." 3. Pogrebnoy asserts that he has standing to pursue the claims alleged in the FAC as a result of an assignment from Radony, Inc., a company he controls, that he executed in November 2010. 4. According to Pogrebnoy, Radony, Inc. acquired the intellectual property rights that were assigned to him in November 2010, through a series of assignments between companies either directly or beneficially owned and controlled by him. 5. Pogrebnoy testified that he was the first owner of the intellectual property in 1992 until he transferred his rights to Russian Kurier, Inc., which owned the rights from November 1992 until 1996. Russian Kurier, Inc. transferred the rights in 1996 to Kurier Weekly, Inc. Kurier Weekly, Inc. was apparently owned by Svetlana Yavorsky, although Pogrebnoy claims that he was the "beneficial owner" and Yavorsky was merely the "nominal" owner. According to Pogrebnoy, in 2000, Kurier Weekly, Inc. transferred its rights to VPP, Inc., which owned the rights until 2005 or 2006, when the rights were assumed by RWNY, Inc. RWNY, Inc. then transferred the rights to Radony, Inc. in 2007. Radony, Inc. owned the rights until November 2010, when Pogrebnoy caused Radony, Inc. to transfer the rights to him so that he could pursue this action pro se. Other than the assignment from Radony, Inc. to Pogrebnoy, Pogrebnoy has not admitted into evidence any written document memorializing these transfers. Nor is there any evidence, other than Pogrebnoy's testimony, that these transfers explicitly or implicitly transferred any trademark or trade dress rights. 6. At trial, Pogrebnoy stated that these transfers between companies were undertaken for a variety of purposes, including to avoid judgments, bad publicity from litigation unrelated to the present dispute, and unpaid taxes. No consideration was ever provided for these assignments. 7. The Court, having observed Pogrebnoy during his testimony, finds that Pogrebnoy is not a credible witness. He was evasive and combative while testifying. He also asserted his Fifth Amendment rights against self-incrimination when he initially declined to answer several questions. See Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 911 (9th Cir. 2008) ("When a party asserts the privilege against self-incrimination in a civil case, the district court has discretion to draw an adverse inference from such assertion."). The Court also finds that Pogrebnoy frequently failed to observe corporate formalities, and has not always conducted his business dealings in an entirely ethical manner. 8. The Court also concludes, based on its observations of Matusov's testimony, that although Matusov is more credible than Pogrebnoy, Matusov is not an entirely credible witness and that he too has not always conducted his business dealings in an entirely ethical manner. 9. According to Pogrebnoy, he began publishing and distributing a Russian language newspaper titled "Kypbep" in New York in 1992. 10. Pogrebnoy and Matusov agree that their business relationship started in 1994 with Pogrebnoy sending to Matusov copies of the New York version of the Kypbep newspaper. According to Matusov, he distributed the Kypbep newspaper in Los Angeles for a period of approximately 12 weeks to test the desirability of launching a Los Angeles version of Kypbep. Pogrebnoy did not charge Matusov for these copies, and there is no evidence that Pogrebnoy sold advertisements directed at the Los Angeles market during this test period or in any other way received any funds as a result of this test of the Los Angeles market. 11. Pogrebnoy and Matusov agree that they entered into an oral contract in 1994. Although Pogrebnoy and Matusov dispute the terms of that contract, there is no evidence that when they entered into their agreement, the parties discussed a license for any intellectual property rights. 12. According to Pogrebnoy, he and his New York companies would provide the film negatives, and after the technology changed, computer files, of the New York Kypbep to Matusov for creation of the Los Angeles Kypbep. In exchange, Matusov was to pay Pogrebnoy and his companies 50% of his profits. Pogrebnoy testified that this arrangement was modified in about 1996 with Matusov retaining 60% of the profits and Pogrebnoy receiving 40% of the profits of the Los Angeles Kypbep. 13. According to Matusov, he promised to pay Pogrebnoy a flat fee of $2,800.00 each month for the negatives, and later computer files, of the New York Kypbep from which he would then create the Los Angeles Kypbep. Matusov states that he would replace most of the advertisements appearing in the New York Kypbep with advertisements he sold for the Los Angeles Kypbep and use some but not all of the articles that had appeared in the New York Kypbep. Matusov would not replace advertisements that Pogrebnoy and his companies had sold to run in both the New York and Los Angeles versions of Kypbep. These advertisements would run in the Los Angeles version of Kypbep at no charge to Pogrebnoy. 14. Matusov would then arrange for the publication and distribution of the Los Angeles version of Kypbep. Defendant Ginzberg became involved in the production of the Los Angeles version of Kypbep in 1995. 15. In 1996, Pogrebnoy added " 'Kurier' Russian Weekly Newspaper" to the masthead of the New York Kypbep. This description, which Pogrebnoy calls an "anglicized" translation of the word "courier" with a Cyrillic "K," was also used in the Los Angeles version of Kypbep. Although the FAC does not clearly articulate the claim, Pogrebnoy asserts that he owns the rights to the unregistered trademarks of both "Kypbep" and "Kurier." 16. Whatever the arrangement between Pogrebnoy and Matusov was, it continued until 2007, when Pogrebnoy accused Matusov of not paying to Pogrebnoy all sums Pogrebnoy thought were owed to him. 17. According to Matusov, Pogrebnoy complained in 2007 that his New York Kypbep was having financial problems. Matusov states that Pogrebnoy told him that "he would leave me in peace if I immediately turned over to him my business, including all my phone numbers, all my accounts, the keys to my post office box, and all checks" made payable to Matusov's company. According to Matusov, Pogrebnoy said that if Matusov did not agree to these terms and surrender his business to Pogrebnoy, Pogrebnoy would "go to 'war' with me." When Pogrebnoy made these statements, he had already moved from New York to the Los Angeles area. 18. Pogrebnoy states that as a result of this dispute, he terminated Matusov's license to use his trademarks and trade dress on November 26, 2007. 19. Pogrebnoy instituted a trademark, trade dress, and breach of contract action against Defendants in February 2008 in Case No. CV 08-1080 PA (SSx) (the "2008 Action"). In support of his Motion for Partial Summary Judgment in the 2008 Action, Pogrebnoy stated that, contrary to the allegations in the operative Complaint filed in that action, which had alleged that Pogrebnoy was the owner of the trademarks, those marks were owned by Radony, Inc. The Court therefore concluded that Pogrebnoy was not the owner of the intellectual property at issue and that Defendants' were entitled to summary judgment. 20. Ginzburg and Russian Newspaper Distribution, Inc. ("RND"), obtained a federal registration for the trademark "LAKurier.com" in August 2010. 21. Pogrebnoy caused Radony, Inc. to assign its intellectual property rights to him and he commenced this action in November 2010. The New York Kypbep ceased publication in 2011. 22. After reconsidering the evidence, the Court concludes that there is no evidence of an express license between Pogrebnoy and Defendants concerning the trademarks at issue in this litigation. Specifically, Pogrebnoy's description of the oral contract between him and Matusov did not include any terms concerning a trademark and trade dress license. There simply is no evidence, let alone a preponderance of evidence, tending to indicate that Pogrebnoy and Matusov discussed any issues concerning trademark and trade dress rights or licenses when they negotiated their oral contract in 1994. Instead, as Matusov testified, it is more likely that the parties agreed that Pogrebnoy would provide the negatives from which Matusov would create the Los Angeles version of Kypbep, utilizing the articles and page layouts supplied by Pogrebnoy, in exchange for payment from Matusov. There is no evidence that, in 1994, when Pogrebnoy entered into the oral contract with Matusov that either party knew or cared about trademark and trade dress rights. Nor is there any evidence that the parties ever conducted negotiations concerning a license for the Kurier mark when that mark was added to the newspapers in 1996. 23. This conclusion is further supported by the fact that after Pogrebnoy and Matusov entered into their oral contract, Pogrebnoy has been involved in several intellectual property disputes involving both copyright law, see Itar-Tass Russian News Agency v. Russian Kurier, Inc., 886 F.Supp. 1120 (S.D.N.Y. 1995), and trademark licensing, see Russian Kurier, Inc. v. Russian American Kurier, Inc., 899 F.Supp. 1204 (S.D.N.Y. 1995). The Court concludes that it is more likely than not that Pogrebnoy learned about the value of intellectual property rights and trademark licenses from those experiences. As a result, his "termination" of the purported license, some 13 years after entering the oral contract, is not sufficient evidence from which the Court can find the existence of an express license. Instead, Pogrebnoy appears to be attempting to use the ambiguity in the original oral contract to take Defendants' business from them. 24. The Court finds that Pogrebnoy granted to Defendants an implied license to use the trademarks at issue in this litigation. The course of conduct between the parties, including Pogrebnoy's sending of films and files, which included the trademarks, and Defendants' incorporation of those materials into the versions of the newspapers they published, is sufficient evidence to establish the existence of an implied license allowing Defendants to use the trademarks at issue. 25. The course of conduct between the parties also included the shipment from Defendants to Pogrebnoy's New York businesses of copies of the Los Angeles version of the newspaper. Pogrebnoy's businesses used these copies as evidence of the publication of advertisements in the Los Angeles editions of the newspapers to obtain payment from the advertisers who had purchased advertising space in both newspapers from Pogrebnoy's businesses. Although there is some evidence that Pogrebnoy's businesses may have also reviewed the Los Angeles editions for "quality control" purposes, Defendants dispute that Pogrebnoy and his businesses ever exercised control over the Los Angeles editions of the newspaper. While there is no evidence that Pogrebnoy could have, or ever did, exert control over the Los Angeles newspaper prior to the publication of any particular edition, it was possible for Pogrebnoy and his businesses to monitor the quality of the Los Angeles newspaper from one edition to the next. 26. Pogrebnoy's evidence in support of his claim for damages of $1,707,450.23 is contained in his Additional Trial Declaration of Oleg Pogrebnoy ("Add'l Pogrebnoy Decl.") (Docket No. 146). Pogrebnoy has calculated this amount based on his own "calculations of the Defendants' bank statements" to derive Defendants' gross income and subtracting from that amount his estimates of their printing and distribution costs. (Add'l Pogrebnoy Decl. ¶¶ 76-81.) 27. Pogrebnoy has not satisfied his evidentiary burden to establish that he has suffered any actual damages. There is insufficient evidence to establish that the New York version of Kypbep and Pogrebnoy lost any sales or suffered damages as a result of the publication of the Los Angeles version of Kypbep. Nor has Pogrebnoy introduced sufficient evidence of Defendants' sales to support an award of Defendants' profits even if an award of such damages were otherwise appropriate. Here, an award of any damages, including Defendants' profits, would not be equitable. There is no evidence that any consumers purchased the Los Angeles Kypbep thinking it was the New York Kypbep, nor is there any evidence that advertisers were deceived into purchasing advertisements in the Los Angeles Kypbep thinking they were advertising in the New York Kypbep. 28. Nor has Pogrebnoy satisfied his evidentiary burden to establish the value of the trademarks at issue in this litigation. As the Court has noted, the Ninth Circuit has affirmed this Court's conclusion that Kypbep is no more than a distinctive mark. The Court similarly concludes that Kurier, as a Cyrillic-inspired spelling of "courier" is also no more than a distinctive mark. The parties did not negotiate a fee for use of the trademarks separate from the transfer of the films and files of the New York version of the paper, and therefore did not place a specific value on the trademarks. Nor is there any evidence that whatever success and profits Defendants have achieved are the result of the value and use of the trademarks rather than Defendants' efforts over more than a decade to develop a readership and advertising base in Los Angeles. II. CONCLUSIONS OF LAW 1. "To establish standing to sue for trademark infringement under the Lanham Act, a plaintiff must show that he or she is either (1) the owner of a federal mark registration, (2) the owner of an unregistered mark, or (3) a nonowner with a cognizable interest in the allegedly infringed trademark." Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1225 (9th Cir. 2008) ; see also id. at 1226 (quoting Nat'l Licensing Ass'n, LLC v. Inland Joseph Fruit Co., 361 F.Supp.2d 1244, 1256 (E.D. Wash. 2004) ("[T]o maintain a [claim under § 1125(a) ], the plaintiff must show that it has a commercial interest in the allegedly misused mark that is likely to be damaged.") (citation omitted) ). 2. The Court concludes that Pogrebnoy has established by a preponderance of the evidence that he is either an owner of the purported unregistered marks at issue in this litigation or a nonowner with a cognizable interest in the allegedly infringed intellectual property to establish his standing to pursue his claims that Defendants have infringed his intellectual property rights. 3. Marks are generally classified in one of five categories of increasing distinctiveness: (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, or (5) fanciful. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed. 2d 615 (1992). Which category a mark belongs in is a question of fact. See Lahoti v. VeriCheck, Inc., 586 F.3d 1190, 1195-96 (9th Cir.2009). Suggestive, arbitrary, and fanciful marks are considered "inherently distinctive" and are automatically entitled to federal trademark protection because "their intrinsic nature serves to identify a particular source of a product." Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753. Generic marks are not eligible for trademark protection. Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1141 (9th Cir. 2002). Merely descriptive marks are somewhere in-between; although they are not inherently distinctive and are therefore not entitled to automatic trademark protection, a merely descriptive mark can become protectable if it has acquired distinctiveness "as used on or in connection with the applicant's goods in commerce." Zobmonda Entm't, LLC v. Falls Media, LLC, 602 F.3d 1108, 1113 (9th Cir. 2010) (quoting 15 U.S.C. § 1052(f) ). This acquired distinctiveness is referred to as "secondary meaning." Two Pesos, 505 U.S. at 769, 112 S.Ct. 2753. 4. The Court concludes that Kypbep and Kurier are distinctive marks. See Gazette Newspapers, Inc. v. New Paper, Inc., 934 F.Supp. 688, 693 (D. Md. 1996) ("The policies underlying the classifications ... indicate that 'Gazette' should be considered descriptive."). 5. In asserting that he "terminated" Matusov's "license to use the Kurier newspaper, trademark and trade dress" on November 26, 2007, Pogrebnoy claims that he had licensed to Matusov the Kypbep and Kurier trademarks. Having already concluded that an implied license allowing Defendants to use the marks existed, Defendants' use of those marks after a valid termination would be infringing. See Wetzel's Pretzels, LLC v. Johnson, 797 F.Supp.2d 1020, 1025 (C.D. Cal. 2011) ; McCarthy on Trademarks § 25:31 ("Once a ... license contract is terminated, there is no doubt that the former ... licensee has no authorization or consent to continue use of the mark. After the permission to use the mark has ended, use of the mark must cease."). 6. Here, there is no evidence that the implied license was irrevocable or for a period of time that has not expired. Instead, an implied license, like any other contract, is terminable at the will of either party if it is not for a specified term. See Rano v. Sipa Press, Inc., 987 F.2d 580, 585 (9th Cir. 1993) ("Under California contract law, agreements of non-specified duration are terminable at the will of either party."). The Court therefore concludes that Pogrebnoy could and did validly terminate the implied license in November 2007. 7. The receipt by Pogrebnoy's businesses of copies of Defendants' newspaper is sufficient under the circumstances to conclude that Pogrebnoy has not abandoned his marks under a "naked licensing" theory. See Barcamerica Int'l USA Trust v. Tyfield Importers, Inc., 289 F.3d 589, 596-97 (9th Cir. 2002) ; see also id. at 598 ("[W]e recognize that 'the standard of quality control and the degree of necessary inspection and policing by the licensor will vary with the wide range of licensing situations in use in the modern marketplace.' " (quoting McCarthy § 18:55 ) ). 8. Courts in the Ninth Circuit typically apply the eight factors set out in AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979), to determine whether a defendant's use of a mark or name creates a likelihood of confusion. Those factors are: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) defendant's intent in selecting its mark; and (8) likelihood of expansion into other markets. Sleekcraft, 599 F.2d at 348-49. "[I]dentical marks paired with identical goods can be case-dispositive." Stone Creek, 426 F.3d at 433 (quoting Brookfield Commc'ns, Inc. v. W. Coast Entm't Corp., 174 F.3d 1036, 1056 (9th Cir. 1999) ). Here, in assessing the Sleekcraft factors, the Court concludes that Pogrebnoy has satisfied his burden to establish a likelihood of confusion between the identical marks that are used for identical goods. 9. Because Pogrebnoy has established a trademark claim for his unregistered marks, he also prevails on his claim for unfair competition. See Cleary v. News Corp., 30 F.3d 1255, 1263 (9th Cir. 1994) ("This Circuit has consistently held that state common law claims of unfair competition ... are 'substantially congruent' to claims made under the Lanham Act."); E & J Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1288 n.2 (9th Cir. 1992) ("[T]he elements of infringement and unfair competition claims are essentially the same; the rulings stand or fall together."). 10. The Court lacks jurisdiction to consider Pogrebnoy's claim for cancellation of Defendants' registration of their LAKurier.com mark. Specifically, 15 U.S.C. § 1119 provides: "In any action involving a registered mark the court may determine the right to registration, order the cancelation [sic] of registrations, in whole or in part, restore canceled registrations, and otherwise rectify the register with respect to the registrations of any party to the action." According to the Ninth Circuit: "This language specifies that cancellation may only be sought if there is already an ongoing action that involves a registered mark; it does not indicate that a cancellation claim is available as an independent cause of action." Airs Aromatics, LLC v. Opinion Victoria's Secret Stores Brand Mgmt., 744 F.3d 595, 599 (9th Cir. 2014). Because Pogrebnoy's Kypbep and Kurier marks are not registered, this action does not otherwise involve a registered mark. The Court therefore lacks jurisdiction over his cancellation claim. "This interpretation also helps preserve the use of actions before the USPTO Trademark Board as the primary vehicle for cancellation." Id. Pogrebnoy's citations to 15 U.S.C. § 1052(d) and 15 U.S.C. § 1064 do not alter this analysis. Instead, those provisions only apply to cancellation proceedings before the Patent and Trademark Office. See Windsurfing Int'l Inc. v. AMF Inc., 828 F.2d 755, 758 (Fed. Cir. 1987) (holding that 15 U.S.C. § 1064(c) does not authorize suits for cancellation in district courts)' McCarthy on Trademarks § 30:110 ("Lanham Act § 14, 15 U.S.C. § 1064, relates only to administrative Trademark Board proceedings in the Patent and Trademark Office. It does not authorize suits for cancellation in a federal District Court.").
9077987-8095	MEMORANDUM OPINION AND ORDER MORAN, Senior District Judge. On November 22, 2002, following a jury trial, defendant James R. Turcotte was found guilty of three counts arising from the possession and distribution of controlled substances. Defendant filed motions seeking a judgment of acquittal or, alternatively, a new trial. For the following reasons, defendant’s motions are denied. BACKGROUND In Count One of the indictment, defendant was charged with knowingly selling misbranded drugs, namely Gamma Hy-droxybutyric Acid (GHB), Gamma Butyro-lactone (GBL) and Butanediol (BD) in violation of 21 U.S.C. §§ 331(a) and 333(a)(2) and 18 U.S.C. §§ 371 and 372. In Count Two, defendant was charged with possessing, with the intent to distribute, mixtures containing controlled substances, during the period of March 13, 2000, to September 8, 2000, in violation of 21 U.S.C. §§ 841(a)(1) and 813. In Count Five, defendant was charged with possessing, with intent to distribute, approximately 60 gallons of GHB and GBL, in violation of 21 U.S.C. §§ 841(a)(1) and 813. Defendant’s trial on these three counts began on November 12, 2002, and on November 22, 2002, he was found guilty of all counts. January 22, 2008, was set as the final day for post-trial motions. On January 22, 2003, defendant, through his attorneys, presented a series of arguments seeking a judgment of acquittal or a new trial. On March 20, 2003, through separate counsel, defendant filed a supplemental memorandum to his post-trial motions, presenting new arguments in support of these motions. DISCUSSION Federal Rules of Criminal Procedure 29(c) and 33 allow a defendant to file motions for judgment of acquittal and for a new trial, respectively. These motions must be filed within seven days of a guilty verdict or within any other time established by the court during the seven-day period. While we recognize that defendant’s supplemental memorandum, which presented new arguments, was filed well after the allowable period for post-trial motions, we will deal with all arguments presented by defendant’s counsel. The arguments presented in the supplemental memorandum are closely related to those contained in the original motion and the government’s attorneys had a fair opportunity to respond. Defendant argues: (1) the jury instructions defining “controlled substance analogue” were defective in that they asked the jurors to read the elements in the disjunctive; (2) the jury instructions for Count Five were fatally defective in that they allowed defendant to be found guilty, without knowing that a specific drug was a controlled substance; (3) the government failed to disclose “Brady” material; (4) the controlled substance analogue act as applied to GBL and GHB, and the emergency scheduling of GHB, are unconstitutionally vague; (5) the evidence that GBL and BD are analogues of GHB was insufficient; (6) other federal law prevents BD and GBL from being controlled substance analogues; (7) the scheduling of GHB as a Schedule I controlled substance has expired; and (8) the defendant’s fundamental constitutional rights were infringed when the government decided to regulate these controlled substances. The jury instructions defining controlled substance analogue were not defective when read in conjunction with the special verdict forms. In determining whether specific substances were analogues of the Schedule I substances, the jury was asked to read the three elements of 21 U.S.C. § 802(32)(a) in the disjunctive. This allowed the jury to determine that GBL and BD were analogues of GHB without necessarily determining that the chemical structures of the substances were substantially similar. A number of district courts have read the statute in the conjunctive in order to avoid absurd results, see United States v. Vickery, 199 F.Supp.2d 1363, 1371 (N.D.Ga.2002); United States v. Clifford, 197 F.Supp.2d 516, 522 (E.D.Va.2002), and we are inclined to agree. The Seventh Circuit has never dealt with the reading of Section 802(32)(A). Such a determination, however, does not affect defendant’s conviction. The jury’s special verdict forms establish that the government proved all three elements of Section 802(32)(A) beyond a reasonable doubt with respect to GHB and that it did not prove BD was an analogue. And in finding defendant guilty of Count Five, the jury made it abundantly clear that it found defendant had engaged, with another, to possess with intent to deliver GHB. The jury instructions detailing the elements of Count Five were also sufficient. 21 U.S.C. § 841(a)(1) clearly contains a knowledge element. But “knowingly” is customarily interpreted as factual knowledge, as distinguished from knowledge of the law, consistent with the maxim that ignorance of the law is no excuse. Bryan v. United States, 524 U.S. 184, 192-95, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998). The jury verdict established that defendant knowingly possessed GBL and the special verdict established that GBL is a controlled substance analogue of GHB. GHB is a Schedule I controlled substance, and, pursuant to 21 U.S.C. § 813, a controlled substance analogue intended for human consumption is treated as a Schedule I controlled substance. The defendant possessed an analogue with intent to distribute and, according to United States v. Desurra, 865 F.2d 651, 653 (5th Cir.1989), that is enough even if he did not know it was an analogue. Perhaps that goes too far, as it might, possibly, in other circumstances, ensnare individuals engaged in apparently innocent conduct. See Bryan v. United States, supra, at 194, 118 S.Ct. 1939. But here, by the special verdict, the jury determined that defendant represented or intended that GBL had a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar or greater than the effect of GHB. There is no evidence that the government failed to disclose any “Brady” material to the defendant, thereby resulting in prejudice to the defendant. The Constitution requires that prosecutors disclose any evidence they possess that is material to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Prosecutors turned over the Investigational Drug Applications (INDs) promptly, after learning of their existence. Defense attorneys were therefore able to review the material and use it during the trial. Moreover, defendant, even now, directs us to no information contained in the INDs that leads us to believe that defendant sold the controlled substances for legitimate uses or that otherwise serves to undermine confidence in the result of the trial. See United States v. Gonzalez, 93 F.3d 311, 315 (7th Cir.1996) quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The Controlled Substance Analogue Statute is not unconstitutionally vague as applied to GBL and GHB. A criminal statute is void for vagueness only if ordinary people cannot figure out what type of conduct is prohibited. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The jury in this ease determined by the special verdict form that defendant sold GBL as an alternative to GHB, representing or intending that it have a similar effect. Moreover, the evidence clearly established the chemical and functional similarities of the two components. The Eleventh Circuit, in United States v. Fisher, 289 F.3d 1329, 1338-39 (11th Cir.2002), dealt with this exact issue, holding that a person of ordinary intelligence should recognize the sim ilarity between GBL and GHB, and that Section 802(32)(A) is not unconstitutionally vague. Likewise, the scheduling of GHB as a controlled substance is not unconstitutionally vague. Congress voted to direct the Attorney General to issue an order listing GHB in Schedule I. Because Congress acted directly, it was unnecessary to follow the procedures set forth in the Administrative Procedure Act. Once GHB was listed on the schedule, any reasonable person would know that the possession and distribution was prohibited by law.
1736218-27845	BENNETT, Senior Circuit Judge. In accordance with 5 U.S.C. § 7703(d) (1982), Constance Homer, as Director of the Office of Personnel Management (OPM or agency), petitioned this court for review of the final decision of the Merit Systems Protection Board (MSPB or board) in Jeffrey v. Office of Personnel Management, 28 M.S.P.R. 81 (1985). In its Jeffrey decision, the MSPB reversed an OPM decision which determined that Mr. Jeffrey was not entitled to credit under the Civil Service Retirement Act (CSRA) for time spent as a midshipman at the United States Naval Academy which was not used in calculating his military retirement benefit. This court granted the OPM’s petition for review and, for the reasons outlined in the following opinion, we reverse the decision of the board. BACKGROUND The background facts are not in dispute and can be summarized as follows. Appel-lee Joseph D. Jeffrey (Jeffrey) was a midshipman at the United States Naval Academy from June 16, 1938, until December 18, 1941, at which time he entered upon active duty with the United States Navy. Jeffrey retired from active duty with the Navy on February 29, 1964, and was credited with 22 years, 2 months, and 12 days of military service as the basis for his military retired pay. His time as a midshipman at the Naval Academy was not credited for military retirement purposes. Subsequent to his retirement from the Navy, Jeffrey was appointed to a civil service position with the Federal Aviation Agency on April 12, 1965, and he served with that agency and its successor agencies until he voluntarily retired from the civil service on September 4, 1982. Upon his retirement from the civil service position, Jeffrey received credit for 17 years, 4 months, and 23 days of civilian service. Jeffrey requested that the OPM grant him civil service retirement credit for his time spent as a midshipman. On October 20, 1983, the OPM denied his request for CSRA credit for his midshipman time and then confirmed its denial on reconsideration on September 5, 1984. In denying the request for reconsideration, the OPM stat ed that the version of 5 U.S.C. § 8332(c) in effect at the time of Jeffrey’s retirement from federal service in September 1982 did not allow credit for his time as a midshipman since he had not waived his military retired pay and he did not meet any of the listed exceptions. The OPM further noted its view that a subsequent amendment to section 8332(c) which would allow civil service retirement credit for military service time for which no military retirement pay credit was awarded did not take effect until October 1, 1982, and was therefore inapplicable to Jeffrey since it was after the effective date of his retirement. The OPM also rejected Jeffrey’s reliance on judicial precedent decided before October 1, 1956, since the predecessor statute to 5 U.S.C. § 8332(c) in existence at that time was similar to the post-October 1, 1982, version of the statute. In short, the OPM’s position was that military service time not used in the computation of military retirement pay could be credited for civil service retirement pay only if the retirement from federal service occurred before October 1, 1956, or after October 1, 1982. Jeffrey appealed to the MSPB. In the initial decision, the presiding official reversed the OPM, finding that the agency had offered no evidence nor was there any legislative history to support the contention that Congress had deliberately changed the law when the wording of 5 U.S.C. § 8332(c) was changed in 1956. The presiding official ruled that “OPM’s interpretation of the law would have the effect of denying any credit under any system for the 314 years of [Jeffrey’s] Academy service. This was not the intent of Congress prior to 1956 nor after 1982.” (Emphasis in original.) The OPM petitioned the full board for review, which was denied by a divided board. In denying the petition for review, the board’s opinion relied on the pre-1956 judicial interpretations of the relevant statutes, finding that Congress only sought to bar double retirement credits for periods of military service. 28 M.S.P.R. at 84. The board also agreed that nothing in the legislative history of the 1956 amendment indicated a congressional intent to alter the existing law as to civil service retirement credit for periods of military service which are not part of the individual’s military retirement benefits. Id. Therefore, the board concluded that Jeffrey was entitled to civil service retirement credit for his academy time since it was clear that there would be no double credit for that time. The board subsequently denied OPM’s request to have the board’s final decisiqn stayed until judicial review by this court could be obtained. Jeffrey v. Office of Personnel Management, 28 M.S.P.R. 434 (1985). Review by this court was sought by the Director of the OPM on the grounds that “the Board’s decision will have a substantial impact on a civil service law.” 5 U.S.C. § 7703(d). This court granted the petition for review. The central issue for review is whether Jeffrey is entitled to civil service retirement credit for his time as a midshipman at the Naval Academy which was not used in the calculation of his military retirement benefit. DISCUSSION I. Each of the parties involved in the present case agrees, quite properly, that the plain language of a statute should conclusively settle the issue before this court. See, e.g., Bread Political Action Committee v. Federal Election Commission, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237-38, 71 L.Ed.2d 432 (1982); Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Southeastern Community College v. Davis, 442 U.S. 397, 405 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979); Darsigny v. Office of Personnel Management, 787 F.2d 1555, 1557 (Fed.Cir.1986) (“the starting point for interpreting a statute is the language itself”); see also Selman v. United States, 204 Ct.Cl. 675, 498 F.2d 1354, 1356 (1974) (“a clear and unambiguous statute speaks for itself”). However, in their desire to discern the legislative intent of Congress when it enacted, amended, and reamended the Civil Service Retirement Act, the parties did not give proper weight to the plain and unambiguous language of 10 U.S.C. § 971(b)(1) (1982 & Supp. Ill 1985). Since section 971(b)(1) determines the outcome of this case, the parties’ extensive examination of the varying language of 5 U.S.C. § 8332(c) (1982) and its predecessor statutes is misplaced and unnecessary. The prior OPM and MSPB decisions in this case and the briefs of both parties in this appeal each begin their analyses by citing 10 U.S.C. § 971(b)(1). Unfortunately, each analysis overlooks the importance of that statute to the resolution of the specific issue presented in this case. That section of the statute reads as follows: (b) In computing length of service for any purpose — (1) no officer of the Navy or Marine Corps may be credited with service as a midshipman at the United States Naval Academy or as a cadet at the United States Military Academy, United States Air Force Academy, or United States Coast Guard Academy, if he was appointed as a midshipman or cadet after March 4, 1913_ (Emphasis added.) 10 U.S.C. § 971(b)(1) (1982). The critical point is that 10 U.S.C. § 971(b)(1) does not limit the bar on the use of time spent as a midshipman in computing length of military service merely to the computation of military retirement pay. It bars the use of military academy service as a cadet or midshipman in computing length of military service for all purposes. Section 971(b) contains no ambiguity in need of clarification; in fact, the statute’s language cannot be clearer. The OPM, the board, and Jeffrey have all avoided the plain language of the statute by improperly reading artificial limitations into the statute’s language. However, despite the parties’ attempts to do so, the language of 10 U.S.C. § 971(b) is not limited solely to military retirement purposes or to military purposes. The statute’s “for any purpose” language must therefore include calculations of length of military service for purposes of determining civil service retirement entitlements. In the case before us, the uncredited “military service” results from military academy attendance as a cadet or midshipman. Thus, it does not matter whether 5 U.S.C. § 8332 does or does not permit credit for periods of military service that were not considered in calculating an employee’s military retirement pay because time spent at a military academy as a cadet or midshipman is not to be included as part of the employee’s military service in the first place. The language quoted above from 10 U.S.C. § 971(b) is the latest version of Congress’s unwavering intent to prohibit the use of military academy time as military service time for any purpose. The bar against the use of military academy time as military service time for any purpose has been present in statutes since at least 1912. See Act of August 24, 1912, Pub.L. No. 338, ch. 391, 37 Stat. 569, 594; Act of March 4, 1913, Pub.L. No. 433, ch. 148, 37 Stat. 891. While the title and location of the relevant provisions have not remained constant, the material provisions of the statute have never been altered. It is inescapable that at all times since 1913 Congress has clearly and permanently intended to prohibit the use of military academy time in calculating the length of military service for any purpose. In Jacobs v. United States, 680 F.2d 88 (9th Cir.1982), the Ninth Circuit recently looked to the legislative history of 10 U.S.C. § 971 when deciding whether the statute applied to Coast Guard officers who spent time at the Coast Guard Academy. While the issue in Jacobs was whether the time as a Coast Guard cadet could be used for the purposes of military retirement pay itself, the legislative history outlined there is instructive in the present case. Officers of the Army and Navy have been expressly prohibited since 1913 from counting cadet or midshipman time in computing length of service. See Act of August 24, 1912, Pub.L. No. 338, ch. 391, 37 Stat. 594; Act of March 4, 1913, Pub.L. No. 433, ch. 148, 37 Stat. 891. Congress found that the previous rule of counting cadet time “discriminat[ed] against the civilian appointee who pays for his own preliminary education and in favor of the graduate of the Military Academy who is educated for his commission at the expense of the Government.” H.R.Rep. No. 270, at 66, 62nd Cong.2d Sess. (1912) (discussed in United States v. Noce, 268 U.S. 613, 618, 45 S.Ct. 610, 611, 69 L.Ed. 1116 [1925]). The House Report notes that “this preposterous practice ... of counting the period of cadet service in computing length of service ... is as indefensible as it is illogical and unfair....” Report at 65-66. Id. at 89-90. It is equally illogical and unfair to allow a retired military officer who was educated at the public’s expense at one of the service academies and who subsequently enters government civil service upon his retirement from the military to receive credit for his military academy time for the purposes of civil service retirement when he could not do so upon retirement from the military. The educated-at-his-own-expense military retiree cannot receive this windfall. The unjustified and restricted interpretation of 10 U.S.C. § 971(b) employed by the parties and the MSPB allows through the back door what Congress explicitly and clearly legislated against at the front door. In light of the significant number of academy-educated military retirees who subsequently enter the government civil service, the resulting and unintended cost to the government may well be on the order of the millions of dollars cited by the OPM. As noted previously, the parties spent considerable effort interpreting the various versions of the provisions of the Civil Service Retirement Act. However, such analysis and discussion were unnecessary and resulted from the failure of all concerned to utilize the proper definition of “military service” as it was intended by Congress to be used for all purposes, including the Civil Service Retirement Act. Congress provided a definition of “military service” in the subchapter covering the Civil Service Retirement Act, but that definition does not alter the method to calculate length of military service provided in 10 U.S.C. § 971(b) or suggest that the OPM has the authority to do so. 5 U.S.C. § 8331(13) states that “ ‘military service’ means honorable active service ... in the armed forces.” The explanatory notes accompanying the statute note that the term “armed forces” as used in section 8331(13) includes the Army, Navy, Air Force, Marine Corps, and Coast Guard as provided in 5 U.S.C. § 2101(2) (1982). Since 10 U.S.C. § 971(b) provides Congress’s definition of length of service for any purpose of each of the branches of the armed forces listed in section 2101(2), there can be no remaining legislative authority delegated to the OPM to supplement or alter the clear and express definitions provided by these statutes. Furthermore, it is improper to attempt to harmonize title 5 and title 10 by limiting 10 U.S.C. § 971(b) solely to military purposes. First, such a construction would require reading “for any purpose” to mean “for any military purpose,” which is not the wording chosen or the result intended by Congress. The task of rewriting a statute is and should remain a duty reserved for Congress. See, e.g., Marchetti v. United States, 390 U.S. 39, 60 n. 18, 88 S.Ct. 697, 708-09 n. 18, 19 L.Ed.2d 889 (1968). Second, central to any such attempt at harmonization is the conclusion that since the predecessor to section 971(b) existed before the creation of the civil service retirement system, its clear language did not apply to civil service retirement matters which subsequently arose. However, this latter conclusion can only be correct if the provisions of the predecessor to section 971(b) had been implicitly repealed by the subsequently enacted civil service retirement statutes, at least with respect to the effect of section 971(b) on civil service retirement. Repeals by implication are not favored and can only be justified when the earlier and later statutes are irreconcilable. Tennessee Valley Authority v. Hill, 437 U.S. 153, 189-90, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978); Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974); Lovshin v. Department of the Navy, 767 F.2d 826, 842 (Fed.Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1523, 89 L.Ed.2d 921 (1986). “[W]hen two statutes are capable of co-existence, it is the clear duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Mancari, 417 U.S. at 551, 94 S.Ct. at 2483. Not only are the two statutes here capable of co-existence, but the alleged point of conflict would result solely from the attempted method of harmonization, an improper limitation of the scope of 10 U.S.C. § 971(b). In actuality, there is no conflict between the statutes at all since the Civil Service Retirement Act does not alter the definition of length of military service set forth in section 971(b). The Court of Claims cases cited by the parties only deal with civil service credit for excess military service as a commissioned officer on active duty beyond what was needed for military retirement purposes. See Hobson v. United States, 151 Ct.Cl. 201 (1960); Bond v. United States, 133 Ct.Cl. 204, 135 F.Supp. 433 (1955), cert. denied, 351 U.S. 974, 76 S.Ct. 1031, 100 L.Ed. 1491 (1956); Prentiss v. United .States, 123 Ct.Cl. 225, 105 F.Supp. 989 (1952). None of the Court of Claims cases involve civil service credit for time spent by a retired officer as a cadet or midshipman at a service academy. In fact, no judicial precedent has been found discussing the issue presented in the instant case. That the OPM and the board agree that the pre-1956 and the post-1982 versions of 5 U.S.C. § 8332(c) permit credit for excess military service is irrelevant when it is academy time as a cadet or midshipman that is at issue. As the Supreme Court stated in National Labor Relations Board v. Brown, 380 U.S. 278, 291-92, 85 S.Ct. 980, 988 13 L.Ed.2d 839 (1965): Reviewing courts are not obliged to stand aside and rubberstamp their af-firmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute. Such review is always properly within the judicial province, and courts would abdicate their responsibility if they did not fully review such administrative decisions.... “The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” (quoting American Ship Building Co. v. National Labor Relations Board, 380 U.S. 300, 318 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965)). Here, since the decision not to consider military academy time as military service for any purpose had already been made by Congress, we would be shirking our judicial role to ignore OPM’s contrary view simply because neither party chose to recognize the error of that view. In the initial MSPB decision, the presiding official observed that the OPM’s interpretation of the 1956 amendments would have the effect of denying any credit under any system for the years of academy service. Although not for the reasons advanced by OPM, denial of any credit for military academy service as a cadet or midshipman is exactly what Congress intended at all times, not just between 1956 and 1982. The lack of evidence as to Congress’s intent in the legislative history accompanying the 1956 amendment to 5 U.S.C. § 8332(c) is not surprising when it is realized that the use of academy time as military service time had long been decided in the negative by the predecessor statutes to 10 U.S.C. § 971(b). II. The only contrary authority to the holding reached by this opinion is the portion of the Federal Personnel Manual (FPM) which states that “service as a midshipman ... constitutes military service for credit purposes.” FPM 831-1 Supp. S3-5(b)(2) (September 21, 1981). Whether the FPM provisions themselves are to be treated as rules and regulations binding on governmental agencies and the public has been considered open to much doubt and has never been authoritatively decided. See Garbacz v. United States, 228 Ct.Cl. 309, 656 F.2d 628, 634 & n. 3 (1981); Jankowitz v. United States, 209 Ct.Cl. 489, 533 F.2d 538, 542-43 & n. 3 (1976); Piccone v. United States, 186 CtCl. 752, 407 F.2d 866, 871 n. 12 (1969); Piccone, 407 F.2d at 876-79 (Nichols, J., concurring). At first glance, it would appear that an authoritative conclusion on that point should not be necessary to decide the present case since there should be little difficulty finding the FPM provision in question invalid as contrary to 10 U.S.C. § 971(b). Nevertheless, Jeffrey argues on the basis of the FPM Supplement provision that “OPM recognizes service as a midshipman at the U.S. Naval Academy constitutes military service for civil service retirement credit purpose.” While the FPM Supplement provision being contrary to statute should be sufficient by itself to invalidate it whether it be a provision, rule or regulation, in case it is felt that the 40 years that the OPM has had the FPM provision on its books is entitled to some weight, the following observations should remove any remaining doubt. In the instant case, as noted above, there is no reason to believe that Congress delegated authority to the OPM to alter the definition of “military service” provided in 5 U.S.C. § 8331(13) and 10 U.S.C. § 971(b). In Horner v. Acosta, 803 F.2d 687, 695 (Fed.Cir.1986), this court rejected the argument that FPM provisions should be accorded the status of regulations. We reject such a position as well. See also Johnson v. Merit Systems Protection Board, 812 F.2d 705, 711 (Fed.Cir.1987); Griessenauer v. Department of Energy, 754 F.2d 361, 364 (Fed.Cir.1985); Doe v. Hampton, 566 F.2d 265, 281 (D.C.Cir.1977). Even assuming the FPM Supplement provision could be considered the equivalent of a regulation, at a minimum, the provision would need to satisfy the two requirements set out in Chrysler Corp. v. Brown, 441 U.S. 281, 301-04, 99 S.Ct. 1705, 1717-18, 60 L.Ed.2d 208 (1979), to be given the “force and effect of law.” Under the Chrysler test, for any agency regulation to have the force and effect of law, it must first prescribe “substantive” or “legislative” rules rather than merely “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” Id. at 301, 99 S.Ct. at 1717. Second, its promulgation must be pursuant to a specific statutory grant of authority and “must conform with any procedural requirements imposed by Congress.” Id. at 302-03, 99 S.Ct. at 1718. The Federal Personnel Manual, by its own definition, is the “official medium of the Office of Personnel Management for issuing personnel instructions, operational guidance, policy statements, related material on governmentwide personnel programs, and advice on good practice in personnel management to other agencies.” FPM, ch. 171, subch. 2-1 (June 10, 1986); see National Treasury Employees Union v. Reagan, 663 F.2d 239, 243 (D.C.Cir.1981). Since the FPM and its supplements are designed to be the type of nonsubstantive rules implementing policy, procedure, and practice which are excluded under the first prong of the Chrysler test, it is extremely doubtful whether FPM provisions in general can achieve the status of law. See Rank v. Nimmo, 677 F.2d 692, 698-99 (9th Cir.), cert. denied, 459 U.S. 907, 103 S.Ct. 210, 74 L.Ed.2d 168 (1982). Taking the inquiry a step further to look at the specific FPM Supplement provision in question here, it is beyond doubt that the provision could be at most an interpretive regulation since the OPM was not instructed by statute to define further the term “military service” or how its length is to be calculated. “An interpretive regulation ... is one issued ... without delegated legislative power.” Fmali Herb, Inc. v. Heckler, 715 F.2d 1385, 1387 (9th Cir.1983) (where court found that since FDA was not instructed by statute to define term, regulation defining the term was merely interpretive). [Interpretative] rules are essentially hortatory and instructional in that they go more “to what the administrative officer thinks the statute or regulation means” when applied in particular, narrowly defined, situations_ By merely clarifying the law’s terms as applied situationally, interpretive or administrative-type rules are used more for discretionary fine-tuning than for general law making. Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir.1984) (citations omitted). In the instant case, it is established that there is no reason to believe that Congress delegated authority to the OPM to alter the method provided in 10 U.S.C. § 971(b) to calculate length of “military service” as defined in 5 U.S.C. § 8331(13). Congress did not expressly ask the OPM to do so. The administrative officer who did so was mistaken as to what 5 U.S.C. § 8332(c) meant when applied in the narrowly defined situation of use of military academy attendance for civil service retirement purposes. It is already established that an interpretive regulation which is contrary to the plain meaning of the statute that the regulation interprets, as well as to the statute’s legislative history, cannot be sustained. General Electric Co. v. Gilbert, 429 U.S. 125, 145, 97 S.Ct. 401, 412-13, 50 L.Ed.2d 343 (1976); Fmali Herb, 715 F.2d at 1387. A regulation which is issued without any legislative delegation of authority, which interprets a statute that needs no interpretation, and which also conflicts with another statute cannot be sustained. Since FPM 831-1 Supplement provision S3 — 5(b)(2) does all three without even clearly being a regulation, it must be invalid. This court in Acosta, in addition to rejecting the argument that the FPM Supplement provision should be accorded the status of a regulation, rejected the argument that because the subject provision existed prior to the latest amendment of section 2105(a), the agency’s longstanding administrative interpretation was entitled to great deference under an “informed inaction” standard. The court found that where Congress subsequently enacted legislation in the particular area which expressly covered the matter at issue, the statute controlled. Acosta, 803 F.2d at 695. The court also dismissed as incredible the argument that, because the FPM Supplement provision existed in substantially the same form prior to the first enactment of section 2105(a), Congress intended to incorporate that specific provision covering a minor portion of title 5 into the broad definition covering the entire chapter. Id. at 696. The reasoning used in Acosta applies with equal or greater force to the present case. Congress amended 10 U.S.C. § 971(b) in 1984 in order to incorporate into the statute the holding in the Jacobs ease which confirmed its intent to continue its method of calculating length of military service for any purpose for all branches of the armed forces. In keeping with the holding in Acosta, the amendment of 10 U.S.C. § 971 in 1984 renders the FPM Supplement provision which was last issued in 1981 obsolete due to the subsequent reenactment of the conflicting statute. The “informed inaction” standard rejected in Acosta also has no applicability to the present situation for two reasons. First, the subject FPM provision conflicts with a different statute than the one that it supposedly interprets. Congress cannot be held to have approved or even been aware of the contrary provisions in the FPM issued under title 5 when it reenacted the provisions contained in 10 U.S.C. § 971. In fact, it is just as likely but not as excusable that the OPM was unaware of the statutes in other titles which impact upon its duties arising under title 5 when it issued the FPM provision. It is incredible to assume that Congress would allow the contrary FPM provision in the present case to override its clear intent to define length of service for all branches of the armed forces for any purpose without expressly so providing. See Lanehart v. Horner, 818 F.2d 1574, 1579 (Fed.Cir.1987). Second, since nothing in title 5 itself can properly be read to contradict or question the provisions of 10 U.S.C. § 971(b), there actually has been no intervening congressional action which has ratified the administrative construction illustrated by the FPM Supplement provision. It is clear that Congress did not intend to limit its unmistakable intent in 10 U.S.C. § 971(b). Thus, the FPM Supplement provision simply falls as contrary to statute. As a final point, we note that the Director argues that since the OPM is the agency responsible for administering the Civil Service Retirement Act, OPM interpretations of that Act are entitled to deference and therefore the board should have deferred to the OPM’s interpretation of 5 U.S.C. § 8332(c) in the present case. The court recently reiterated that view, stating: Congress authorized OPM to administer the CSRA and to promulgate implementing regulations. 5 U.S.C. § 8347(a). The long-standing interpretation placed on a statute by the agency charged with its administration should be followed unless there are compelling indications that it is wrong. E.g., Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); (other citations omitted).
9477451-15448	OPINION RESTANI, Judge. This matter is before the court on the motion of plaintiff Ad Hoc Committee of Domestic Uranium Producers under United States Court of International Trade (“C.I.T.”) Rule 56.2 for judgment upon the administrative record before the International Trade Commission (“Commission” or “ITC”). Plaintiff challenges the negative results as to Uzbekistan in the sunset review determination found in Uranium from Russia, Ukraine and Uzbekistan, USITC Pub. 3334, Inv. Nos. 731-TA-539-C, E and F (Review) (Aug.2000) [hereinafter “Final Detemination ”]. Plaintiff challenges the decision of the Commission not to cumulate imports from at least two of the three countries under review. It also challenges the Commission’s determination that the volume of Uzbek imports would not rise to a significant level if the restraints resulting from the antidumping duty petition were removed. Facts Uzbek imports are subject to a suspension agreement which has been modified several times. See, e.g., Uranium from Kazakhstan, Russia, Tajikistan, Ukraine, and Uzbekistan, 57 Fed.Reg. 49,220, 49,255-61 (Dep’t Comm.1992) (suspension of invest.) [hereinafter “Suspension Agreement ”]; Agreement Suspending the Anti-dumping Investigation on Uranium from Uzbekistan, 60 Fed.Reg. 55,004 (Dep’t Comm.1995) (amended susp. agreement). The challenged sunset review is pursuant to 19 U.S.C. § 1675(c)(1)(c), which requires review five years after publication of such a suspension agreement to determine if termination of the agreement “would be likely to lead to continuation or recurrence of dumping ... and of material injury.” The ITC by a vote of 5-0 determined that termination of the suspended investigation covering uranium from Uzbekistan would not be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time. See Final Determination, at 44. The ITC also unanimously exercised its discretion not to cumulate Russian and Uzbek subject imports. See id. at 19-24, 49-53. With regard to cumulation, the ITC first found that the statutory requirement that all reviews be initiated on the same day was satisfied. Id. at 20-21. The ITC also did not find that Russian and Uzbek subject imports would be likely to have no discernible adverse impact on the domestic industry. Id. at 21-22. A contrary conclusion by the ITC would have ended the inquiry. See 19 U.S.C. § 1675a(a)(7) (“The Commission shall not cumulatively assess the volume and effects of imports of the subject merchandise in a case in which it determines that such imports are likely to have no discernible adverse impact on the domestic industry.”). Rather, the ITC considered whether to exercise its discretion to cumulate such imports. The ITC majority in two separate views found that Russian and Uzbek subject imports would likely not compete under similar conditions of competition, if the suspended investigations were terminated, and declined to exercise its discretion to cumulate Russian and Uzbek subject imports in these reviews. See Final Determination, at 22-24, 52-53. The ITC found several conditions of competition in the uranium industry relevant to its determinations in this review. First, the ITC found that various forms of uranium — uranium concentrate (U308), natural uranium (natural UF6), enriched uranium (enriched UF6), and uranium oxides (U02)are individually fungible, commodity products and, for the most part, substitutable with uranium of the same form produced elsewhere in the world. Id. at 28. However, the four forms are not physically interchangeable with each other since they are all intermediate products each successively contained in one another. Id. Second, the ITC found that there have been substantial structural changes to the domestic industry since the original investigations, including consolidations and closings of U.S. uranium concentrate and conversion operations. Id. The most significant change, however, has been the privatization of USEC, the only U.S. en- richer of uranium. Id. at 28-29. USEC traditionally has enriched natural UF6 to produce LEU for electric utilities, but, as the U.S. Government’s Executive Agent for the Russian HEU Agreement, USEC is required to import large quantities of Russian LEU blended down from Russian HEU and sell it directly to utilities. Id. at 29. Third, the ITC found that U.S. utilities’ demand for uranium, as measured by reactor requirements, has been constant during the review period and is projected to remain relatively flat for the next decade. Id. Uranium consumption has been affected by the closure of at least 11 U.S. nuclear power plants in the past 20 years and no new plant construction. Id. Demand for uranium also has been affected by deregulation of electrical utilities, which effectively puts nuclear power plants in competition with other sources of electricity and increases pressure on the utilities to cut costs by obtaining uranium at the lowest cost whether through the traditional fuel cycle or from non-traditional uranium suppliers. Id. The ITC noted that the nature of U.S. demand may be changing as U.S. electric utilities are now able to purchase more advanced products directly, especially natural UF6 and enriched UF6, whereas in the past they typically were limited to purchasing the uranium concentrate and contracting for toll production at each of the subsequent stages of processing. Id. While long-term contracts account for a majority of utilities’ purchases, the increased availability of more advanced products has led to shorter lead times and allowed a reduction in long-term purchases in favor of shorter-term contracts, including spot contracts. Id. Fourth, another significant condition of competition is the overall increase in the supply of uranium, and, in particular, the increased availability of uranium in processed forms. Id. at 29-30. Imports under the Russian HEU Agreement have provided a large and increasing supply of uranium at the LEU stage to the U.S. market. Id. at 30. Moreover, the Russian feedstock (natural UF6) also is available for sale in the U.S. market at annual limits that increase to an annual total of 20 million pounds in 2007. Id. Increased worldwide availability of uranium, particularly in processed form, as well as cost-cutting measures resulting from deregulation, have led some utilities to sell or trade uranium from their inventories on the open market, adding to the number of suppliers and the already existing excess supplies. Id. at 31. The development of the relatively high-grade, low-cost uranium ore reserves in Canada and Australia have added to the worldwide uranium abundance, and have been an increasing supply of uranium concentrate to the U.S. market during the review period. Id. at 30-31. Fifth, the ITC found that the inventories, which are typically stored by producers but owned by utilities, created separate, but interrelated, markets through swaps and loans for the uranium and enrichment components of enriched UFg. Id. at 31. Finally, the ITC found that trade restrictions in the United States and Europe affected exports of uranium from the successor countries to the former Soviet Union and resulted in a two-tier pricing structure. Id. at 31-32. The ITC concluded, based on the facts in the record of the Uzbek review, that “while there may be some increase in the volume of subject imports of uranium from Uzbekistan if the suspended investigation is terminated, it is not likely to reach significant levels within a reasonably foreseeable time.” Id. at 43. The ITC considered the volume of subject imports in absolute terms and relative to consumption of all uranium and only uranium concentrate, imports and U.S. utilities’s reactor requirements. Id. at 41-43. The ITC found that Uzbek imports of uranium concentrate represented a relatively small share of total U.S. uranium sales and imports of all uranium during the period of review. Id. at 41. Relevant confidential information is found at Final Staff Report, at IV-7, C.R. Doc. 46, ITC App., Tab 6, at IV-7; Uzbekistan Pre-Hearing Br., at 20-21, Exh. 7, C.R. Doc. 16, ITC App., Tab 3, at 5-6, 8; Post-Hearing Br., at 3, C.R. Doc. 32, ITC App., Tab 5, at 2. Capacity utilization was particularly high. The ITC recognized that since imports of Uzbek uranium have been subject to quotas, which generally have been fully subscribed, it is likely that uranium shipments from Uzbekistan may increase to some degree without the Suspension Agreement quotas. Final Determination, at 42. However, the ITC found that even if 100 percent of Uzbek’s production capabilities were utilized and all such product were shipped only to the U.S. market, the volume of Uzbek imports would still not rise to a significant or injurious level. Id. at 43. Based in large part upon its finding that the likely volume of Uzbek imports will not be significant, the ITC also found that, in the event of termination of the suspended investigation, it is unlikely that Uzbek subject imports would result in significant adverse price effects in the U.S. market. Id. While the ITC found that the U.S. uranium industry was in a vulnerable condition, it concluded that in the absence of significant volume changes or price effects, it is not likely that termination of the suspended Uzbek investigation will result in a significant adverse impact on the domestic industry. Id. at 44. Therefore, the ITC determined that termination of the suspended investigation on uranium from Uzbekistan is not likely to lead to the continuation or recurrence of material injury to the domestic industry within a reasonably foreseeable time. Discussion A. The Commission did not abuse its discretion as to cumulation. Cumulative assessment of imports from different countries under simultaneously initiated reviews is not mandatory in sunset reviews, even if such imports compete with each other and the domestic like product to some degree. Contrast 19 U.S.C. § 1675a(a)(7) (“the Commission may cumulatively assess the volume and effect of imports ... ”) with 19 U.S.C. § 1677(7)(G) (setting forth conditions in original title VII material injury investigation under which the Commission “shall” cumulate). See also Statement of Administrative Action, accompanying H.R.Rep. No. 103-826(1), at 887, reprinted in 1994 U.S.C.C.A.N. 4040, 4212; Eveready Battery Co. v. United States, 77 F.Supp.2d 1327, 1331 (CIT 1999) (cumulation in sunset reviews is discretionary). Unlike present material injury investigations, both threat of injury investigations and sunset reviews require the Commission to assess the likelihood of future injury, and cumulation is not mandated in either type of proceeding. Compare 19 U.S.C. 1675a(a)(7) (discretionary cumulation for sunset reviews) with 19 U.S.C. § 1677(7)(H) (cumulation to the extent practical for threat of material injury criteria). Both types of proceedings are inherently prospective and the Commission attempts to predict the future based on current data and historical trends, if possible. Combining trends has proved difficult in threat investigations, and the court has upheld Commission determinations not to cumulate under such conditions. See, e.g., Kern-Liebers USA v. United States, 19 CIT 87, 103-04 (1995); Torrington Co. v. United States, 16 CIT 220, 229-30, 790 F.Supp. 1161, 1171-72 (1992). In this case, both countries’ exports were subject to suspension agreements, and Russian imports are subject to the terms of the outstanding HEU agreement, which is not dependent on the continuation of the antidumping duty regime. See Final Staff Report, at 1-13, ITC App., Tab 6, at 1-13. It would be difficult, therefore, to make any meaningful predictions based on combining past Russian and Uzbek import volume, market share, and price effects data, as plaintiff concedes. See Pl.’s Reply Br. at 9 n. 4. Accordingly, the Commission considered what it expected the conditions of competition to be for imports from the respective countries. The Commission considered the large share of the HEU market guaranteed to Russian imports. Id. at 23. It also considered the full range of market segments served by Russian imports and the narrow market segment of unprocessed uranium served by Uzbek imports. Id. at 23-24. Plaintiff does not dispute these facts. The Commission also did not deny the fact of some competition. Id. at 23. It simply found insufficiently similar conditions of competition to warrant cumu-lation. Id. at 23-24. This is more than sufficient reasoning to justify a decision not to cumulate in a sunset review. Plaintiffs other arguments are insufficient to show error on the Commission’s part in this regard. The Commission may consider market segmentation in assessing conditions of competition even when there is one like product. Ranchers-Cattlemen Action Legal Foundation v. United States, 74 F.Supp.2d 1353, 1371-2 (CIT 1999). B. The Commission’s decision that Uzbek imports were unlikely to reach significant levels was supported. The basic inquiry in a sunset review is whether termination of whatever unfair trade discipline has been imposed will likely lead to the material injury to the domestic industry sought to be avoided by the discipline imposed. 19 U.S.C. § 1675a(a)(1). To this end the likely volume, price effects, and impact of the imports are considered. Id. Volume is considered in absolute terms and relative to production or consumption in the United States. 19 U.S.C. § 1675a(a)(2). In this case volume was considered in relation to U.S. consumption of all uranium and also in relation to only uranium concentrate, as well as the large volume and market share of non-subject imports. Final Determino tion, at 41 & nn. 241-42. Uzbek imports were projected to increase as a result of termination of the suspension agreement, but the Commission also considered the very high Uzbek capacity utilization, low inventories and the lack of significant projected increase in production capacity, id. at 42-43, each of which it is required to consider under § 1675(a)(2). Uzbek uranium, for which there is no home market, is largely sold under long-term contracts and there was no evidence that significant shifting to U.S. markets would occur. Final Determination, at 42-43. Nonetheless, as indicated, the Commission considered the possibility of total capacity utilization and total diversion to the U.S. market. It still failed to find significant volume. Id. at 43. Plaintiffs chief objection is to the Commission’s decision, in the face of long term contracts, not to measure the likely volume of imports relative to future uncommitted demand. This argument was rejected in USEC, Inc. v. United States, 132 F.Supp.2d 1, 15-16 (CIT 2001). Whatever the factual differences between that case and the one at hand, the principle that volume need not be assessed relative to uncommitted demand only is a good one. What percentage of Uzbek volumes would one measure against uncommitted demand? How long should the contract term be before the covered volume is removed from consideration? Given that the spot market is relatively small, why should that market dictate the outcome? Whatever merits plaintiffs position has, it also has problems, as these questions indicate. No methodology is perfect. Neither the statute nor the facts of this case compel the Commission to use plaintiffs proposed methodology.
3559751-6705	ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION AND FOR MANDATORY INJUNCTION PENDING APPEAL FONG, District Judge. By their Motion for Mandatory Injunction Pending Appeal filed November 5, 1982, Plaintiff PUNA SPEAKS, an unincorporated association, on behalf of itself and as representative of its members, came to this Court seeking a mandatory injunction pending appeal restraining Defendants from the operation or continuation of activities with respect to three geothermal drilling and production projects in the Puna District on the island of Hawaii. The matter came on for hearing on December 20,1982, on Plaintiffs’ Motion, filed pursuant to Rule 8, Federal Rules of Appellate Procedure, for a mandatory injunction pending appeal. At that hearing, Plaintiffs also asked the Court to reconsider its December 17, 1982 Order Denying Plaintiffs’ Motion For Preliminary Injunction. Just prior to the hearing on December 20, 1982, Plaintiffs filed their Notice of Appeal to the Ninth Circuit Court of Appeals. JACK F. SCHWEIGERT, Esq., appeared on behalf of Plaintiff PUNA SPEAKS; JAMES E.T. KOSHIBA, Esq., appeared on behalf of Defendant HAWAIIAN ELECTRIC COMPANY, INC.; CAROL MURA-NAKA, Esq., appeared on behalf of the U.S. Attorney’s Office and the Land and Natural Resources Division of the U.S. Department of Justice for Defendant DONALD P. HODEL, United States Secretary of Energy; ANNETTE Y.W. CHOCK, Esq., appeared on behalf of Defendants HIDETO KONO, Director of the Department of Planning and Economic Development, State of Hawaii, THE RESEARCH CORPORATION, University of Hawaii, and WILLIAM YUEN, Chairman of the LAND USE COMMISSION, State of Hawaii; R. BEN TSUKAZAKI, Esq., appeared on behalf of Defendant SIDNEY FUKE, Planning Director of the County of Hawaii; WILLIAM M. TAM, Esq., appeared on behalf of Defendant SUSUMU ONO, Chairman of the Board of Land and Natural Resources, State of Hawaii; JOHN A. RONEY, Esq., appeared on behalf of Defendant BARN-WELL GEOTHERMAL CORPORATION; and BENJAMIN A. KUDO, Esq., appeared on behalf of Defendant PUNA GEOTHERMAL VENTURE. AND THE COURT, having considered Plaintiffs’ Motion to be both a motion for reconsideration of the Court’s December 17, 1982 Order Denying Plaintiffs’ Motion for Preliminary Injunction, as well as a motion for mandatory injunction pending appeal, having considered all of the evidence presented, having studied the various memoranda, affidavits and exhibits submitted by counsel, having heard the arguments of counsel made at the aforesaid hearing, and having studied the authorities cited by counsel and otherwise being fully advised in the premises, makes the following Findings of Fact, and Conclusions of Law and Order: FINDINGS OF FACT 1. On December 17, 1982, this Court filed its Findings of Fact, Statements of Law, Conclusions and Order denying Plaintiffs’ Motion for Preliminary Injunction. 2. Plaintiffs are now contending that a formal Environmental Impact Statement (hereinafter “EIS”) was required and Defendant’s negative-declaration was in error, due to alleged failure to consider several factors enumerated in the Council on Environmental Quality’s (CEQ) terminology of the word “significantly”. See 40 C.F.R. § 1508.27 (1981). 3. The question presented for judicial review is whether Defendant U.S. Department of Energy (hereinafter “DOE”) had “reasonably concluded” that the geothermal project will have no significant environmental consequences. (Citations omitted.) 4. Having studied the various memoranda, affidavits, declarations and exhibits submitted herein, and having considered the testimony of witnesses and arguments of counsel made during the hearing of September 29th and 30th, 1982 on Plaintiffs’ Motion for Preliminary Injunction, this Court found in Paragraph 13 of its Findings of Fact that the “Defendants had reasonably considered all the various environmental consequences regarding the [geothermal] project in controversy, having before them all the relevant environmental information at the time of the ‘negative-determination’ decision.” 5. The negative-declaration by Defendant DOE was based, in part, on the 1976 Environmental Assessment of the Hawaii Geothermal Project Well Flow Test Program, the 1977 Department of Energy Environmental Impact Assessment of the Hydrothermal Subprogram which addressed the environmental consequences of geothermal development and the 1979 Environmental Assessments of the Hawaii Geothermal Research Station. 6. The Court found in paragraph 14 of its Findings of Fact that the exhibits indicate that Defendants took adequate steps to ensure compliance with NEPA guidelines and that in good faith, they did identify and discuss all of the foreseeable environmental consequences in their consideration of the project in question. 7. The Court further found in Paragraph 15 of its Findings of Fact that “[b]y reason of the foregoing, the environmental assessments and studies were adequate for the purposes of NEPA, therefore, Defendant DOE was not required to file a formal NEPA environmental-impact statement.” 8. The Court further found in Paragraph 16 of its Findings of Fact that the “Plaintiffs have not shown that DOE’s decision to forego an environmental impact statement was unreasonable.” 9. No new additional evidence has been submitted by Plaintiffs to challenge the Court’s previous findings that Defendant DOE acted reasonably in determining that a negative-declaration was appropriate for the geothermal project. STATEMENTS OF LAW 1. When an application for an injunction pending appeal is made, the criteria to be employed in deciding whether it should be granted are much the same as would be employed on application for a preliminary injunction, i.e., likelihood that Plaintiffs will prevail on the merits, the balance of irreparable harm, and the public interest in granting the injunction. Alpine Lakes Protection Society v. Schlapfer, 518 F.2d 1089 (9th Cir.1975), citing Schwartz v. Covington, 341 F.2d 537 (9th Cir.1965). 2. However, as noted in Columbia Basin Land Protection Ass’n v. Kleppe, 417 F.Supp. 46 (E.D.Wash.1976), aff’d sub nom. Columbia Basin Land Protection Ass’n v. Schlesinger, 643 F.2d 585 (9th Cir.1981), in cases of alleged NEPA violations, the National Environmental Policy Act has effectively preempted the Court’s authority to: (a) balance the relative harm to the parties that would result from an injunction; and (b) determine whether the public interest would be served. 3. This Court must therefore determine whether or not Plaintiffs have carried their burden of going forward by showing irreparable harm and the likelihood of success on the merits in order to justify the relief prayed for.
11549042-6627	ORDER This matter is before the court on counsel’s application for attorney’s fees and expenses. In a separate sealed order issued today, we have outlined the fees and expenses which will be paid to counsel for their representation of defendant Terry Lynn Nichols in this matter. Through this order, we will provide our reasoning for the conclusions we have drawn. It is our intent to provide guidance to both counsel and the court for future appeals invoking the mandate of 21 U.S.C. § 848(q). Defendant Terry Lynn Nichols was tried as a co-conspirator in the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma. See United States v. Nichols, 169 F.3d 1255, 1260 (10th Cir.1999), petition for cert. filed, (U.S. June 30, 1999)(No. 99-5063)(provid-ing factual background). Throughout the proceedings, Mr. Nichols has had the benefit of appointed counsel. In orders dated July 10 and July 22, 1998, respectively, we appointed three lawyers to represent him. Although the orders did not make specific reference to our appointing authority, the fair inference is that counsel were appointed pursuant to 21 U.S.C. § 848(q)(10). Unlike appointments made in most direct criminal appeals under the Criminal Justice Act, § 848(q) speaks specifically to the availability of counsel for indigent defendants in capital litigation. The current version of the statute provides: (4)(A) Notwithstanding any other provision of law to the contrary, in every criminal action in which a defendant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services at any time either— (i) before judgment; or (ii) after the entry of a judgment imposing a sentence of death but before the execution of that judgment; shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8), and (9). 21 U.S.C. § 848(q)(4)(A). Here, the government sought the death penalty from the outset. Consequently, counsel were appointed pursuant to this provision. We continued those appointments on appeal. See Volume VII, Guide To Judiciary Policies and Procedures, Ch. VI, section 6.02B(2)(noting that courts may consider continuation of multiple counsel and higher rates under this provision even where the matter is no longer a capital case). The particular issue before us, then, is the appropriate analysis for payment of fees under § 848(q). Prior to April of 1996, our task in analyzing fees under the statute was directed in large part by the language of § 848(q)(10). At that time, that paragraph stated: Notwithstanding the rates and maximum limits generally applicable to criminal cases and any other provision of law to the contrary, the court shall fix the compensation to be paid to attorneys appointed under this subsection and the fees and other expenses to be paid for investigative, expert, and other reasonably necessary services authorized under paragraph (9), at such rates or amounts as the court determines to be reasonably necessary to carry out the requirements of paragraphs (4) through (9). 21 U.S.C. § 848(q)(10)(1995)(emphasis added). When Congress passed the Anti-Terrorism and Effective Death Penalty Act, however, the language of paragraph 10 was amended. It now provides: Compensation shall be paid to attorneys appointed under this subsection at a rate of not more than $125 per hour for in-court and out-of-court time. Not less than 3 years after April 24, 1996, the Judicial Conference is authorized to raise the maximum for hourly payment specified in the paragraph up to the aggregate of the overall average percentages of the adjustments in the rates of pay for the General Schedule made pursuant to section 5305 of Title 5 on or after such date. After the rates are raised under the preceding sentence, such hourly range may be raised at intervals of not less than one year, up to the aggregate of the overall average percentages of such adjustments made since the last raise under this paragraph. 21 U.S.C. § 848(q)(10)(A). Notably, the amended version does not contain reference to the reasonableness of services performed. Rather, the focus of the new section is on adjustments to the rates of pay which will be afforded appointed counsel. The legislative history of the statute is silent on the reasons behind the redaction. Nevertheless, reasonableness must continue to be the standard for evaluating the appropriateness of fees under this statute. To conclude otherwise would require us to reject both Supreme Court precedent and the statutory mandate of the Criminal Justice Act. See In re Berger, 498 U.S. 233, 235, 111 S.Ct. 628, 112 L.Ed.2d 710 (1991)(per curiam)(identifying the § 848 inquiry as “what level of compensation is ‘reasonably necessary’ to ensure that capital defendants receive competent representation....”); 18 U.S.C. § 3006A(d) (requiring that attorneys be compensated for “time reasonably expended out of court”); see also United States v. Kennedy, 64 F.3d 1465, 1470 (10th Cir.1995)(noting that the defendant bears the burden of showing services are “necessary for adequate representation” under the Criminal Justice Act.). Moreover, although redacted from paragraph 10 of § 848(q), the reasonableness standard may still be gleaned from the language of amended paragraph 9, which states: Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor under paragraph (10). 21 U.S.C. § 848(q)(9)(emphasis added). Through inclusion of the reasonableness language in this paragraph, Congress made clear its intent to retain judicial discretion as a tool in evaluating the appropriate amount of fees to pay for services rendered in capital cases. It would be anomalous to apply a reasonableness test with regard to investigative services but abandon it with respect to attorney’s fees. In addition, the reference in paragraph 9 to paragraph 10 appears deliberate. Paragraph 9 provides that the court may authorize payment of “fees and expenses” under paragraph 10. We may do so, however, only for those services which are reasonably necessary. The logical result is that the reasonableness standard applies to paragraph 10 fees as well.
104571-19170	BEEKS, District Judge. Appellants are Indians enrolled in the Klamath Tribe. They brought separate actions in the district court against appellee. The First National Bank of Oregon, Portland, for declaratory judgment holding (1) the provisions of the Klamath Termination Act, 25 U.S.C. §§ 564-564x, providing for the placing of funds of Indians determined by the Secretary of the Interior to be in need of assistance in private trusts to be unconstitutional, and (2) the balloting procedure required by Section 564d of that Act was not followed. The United States intervened pursuant to 28 U.S.C. § 2403 and thereafter appellant, Furman Crain, Sr., moved for summary judgment. Following the denial of such motion, all three actions were consolidated and a pretrial order was entered in which all of the facts were agreed. Appellants and appellees then moved for summary judgment. The district court granted appellee’s motion and entered judgment. This appeal followed. The district court had jurisdiction under the provisions of 28 U.S.C. § 1331, relating to federal questions, and 28 U.S. C. §§ 2201, 2202, the Federal Declaratory Judgments Act. Jurisdiction is conferred upon this court under the provisions of 28 U.S.C. §§ 1291 and 1294. Appellants’ only assignment of error is that the district court erred in granting appellee’s motion for summary judgment and in denying appellants’ motion for summary judgment, and hence, in sustaining the constitutionality of the trust provisions of the Klamath Termination Act and the validity of the procedures taken thereunder. The Klamath Termination Act of August 13, 1954, 68 Stat. 718, as amended August 14, 1957, 71 Stat. 347, 25 U.S.C. §§ 564-564x, provided for termination of federal supervision over the Klamath Indian Tribe. Under the terms of the Act the tribal roll was closed as of August 13, 1954, and thereafter the Secretary of the Interior, pursuant to the directions of the Act, caused the final tribal roll to be established and published in the Federal Register of November 21, 1957. Each appellant was named as an enrolled member of the Klamath Tribe therein and was thus entitled to a share of the tribal property. Section 564d(a) (2) of the Act provides that immediately after the Secretary of the Interior approves an appraisal of the tribal properties, each enrolled Indian be given “an opportunity to elect to withdraw from the tribe and have his interest in tribal property converted into money and paid to him, or to remain in the tribe and participate in the tribal management plan” to be prepared under Sec. 564d(a) (5) of the Act. Pursuant to Section 564d(a) (2), appellants were furnished ballots on which to make their election as follows: “A. I elect to remain in the tribe and have my share of tribal assets placed under a management plan substantially in the form of the plan dated Feb...... 1958, of which I have received a summary, which is satisfactory as to form and content.” “B. I elect to withdraw from the ' tribe and have my share of tribal assets converted into cash.” Each ballot specified that it must be executed and returned by a specified date and that a person failing to make the election would remain in the tribe with his assets placed under the final tribal management plan. Appellants duly elected to withdraw from the tribe. Section 564n of the Act provides, in part, that prior to the transfer or paying over of the money representing a withdrawing enrollee’s interest in the tribal property, “the Secretary shall protect the rights of members of the tribe who are minors, non compos mentis, or in the opinion of the Secretary in need of assistance in conducting their affairs, by causing the appointment of guardians for such members * * * or by such other means as he may deem adequate, without application from the member, including but not limited to the creation of a trust of such member’s property with a trustee selected by the Secretary * * Section 564n further provides, in part, that any member, within 120 days after receipt of notice that the Secretary has made such a determination, may contest it “in any naturalization court for the area in which said member resides” and that “the burden shall thereupon devolve upon the Secretary to show cause why such member should not conduct his own affairs, and the decision of such court •shall be final and conclusive with respect to the affected member’s conduct of his affairs.” Pursuant to the above provisions, on or about June 10, 1958, the Secretary of the Interior made individual determinations that each of the appellants was in need of assistance in conducting his or 'her affairs and notified each appellant thereof. None of the appellants contested that determination in any naturalization court. Following such determinations, the Secretary of the Interior selected appellee, The First National Bank of Oregon, Portland, as trustee to receive and administer appellants’ liquidated shares of tribal properties. Identical trust agreements were executed by the Secretary of the Interior and the appellee bank on May 16, 1958, and June 17, 1958, respectively, and the trusts are presently administered by appellee bank. Finally, on August 12,1961, the Acting ¿Secretary of the Interior published in the Federal Register, 26 F.R. 7362, a Proclamation declaring a termination of the federal trust relationship pursuant to ¿Section 564q of the Act. In support of their specification of error, appellants contend: 1. That the provisions of Section 564n of the Act violate the Fifth Amendment to the Constitution of the United States in that they restrict appellants' use of their property solely because of Indian ancestry. 2. That the designation of private trustees for the management of the trust property instead of the Secretary of the Interior is an unconstitutional delegation of Congressional power to a private person. 3. That appellants were not offered the ballot choice required by Section 564d(a) (2) of the Act. With respect to their contention that the trust provisions of Section 564n of the Act violate their Fifth Amendment rights, appellants do not contest the fact that historically the relationship between the United States and the Indian tribes has been one of guardian and ward and that such a relationship is constitutional. Neither do appellants question Congressional power to manage the property of Indians until such time as it releases them from wardship. While the wardship relation itself is undoubtedly based in part upon Indian ancestry, appellants do not challenge it for this reason. They do say, however, that the trust provisions of the Klamath Termination Act are racially discriminatory and in violation of the Fifth Amendment. The thrust of their argument is that once federal jurisdiction terminated on August 13, 1961, by Proclamation of the Secretary of the Interior, the guardian- ward relationship ended for all purposes and appellants’ rights to handle their property must be determined as any other person’s. Therefore, a determination by the Secretary of the Interior that they are in “need of assistance” and the consequent establishment of private trusts over their property discriminated against them because of their Indian ancestry and is violative of the Fifth Amendment. Our answer is direct and simple. Federal jurisdiction did not end on August 13, 1961, and the guardianship relation has not terminated for all purposes. Congress has the power to determine when, how and by what steps it will emancipate the Indian and whether the emanicipation shall be complete or only partial. Tiger v. Western Investment Company, 221 U.S. 286, 31 S.Ct. 578, 55 L.Ed. 738 (1911); United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192 (1916); United States v. Waller, 243 U.S. 452, 37 S.Ct. 430, 61 L.Ed. 843 (1916); Brader v. James, 246 U.S. 88, 38 S.Ct. 285, 62 L.Ed. 591 (1917). This right of the Government, acting through Congress, to exercise continued partial guardianship and to gradually terminate that relationship, was established and set forth fully in the Waller case, supra. The Supreme Court there stated at pages 459-460: “ * - it is necessary to have in mind certain matters which are well settled by the previous decisions of this court. The tribal Indians are wards of the Government, and as such under its guardianship. It rests with Congress to determine the time and extent of emancipation. Conferring citizenship is not inconsistent with the continuation of such guardianship, for it has been held that even after the Indians have been made citizens the relation of guardian and ward for some purposes may continue. On the other hand, Congress may relieve the Indians from such guardianship and control, in whole or in part, and may, if it sees fit, clothe them with full rights and responsibilities concerning their property or give to them a partial emancipation if it thinks that course better for their protection.” Appellants do not controvert the existence of this power of gradual emancipation but argue that the Proclamation by the Secretary of the Interior on August. 13,1961, pursuant to Section 564q of the Act, was a complete and not a partial or gradual termination, and that it removed all restrictions on all property of all Klamath Indians as of the date it was proclaimed. By this contention appellants seek to obtain benefits under one part of the statute while they deny the whole. By the very terms of Section 564n and by express exception in the Proclamation, Indians “in need of assistance in conducting their affairs” were specially treated and the fiduciary management of their property was not terminated but was placed in the hands of private trustees, a method expressly authorized by Congress in Section 5S4n. Thus, on August 13, 1961, all federal supervision ended and emancipation occurred but only to the extent of the pro •visions of the entire Act under which the termination proclamation was made. Moreover, the procedural aspects of the formation and administration of these trusts provide appellants with all procedural rights afforded them by the Constitution. The Secretary’s ■determination that appellants were “in need of assistance” was subject to judicial review pursuant to Section 564n by way of proceedings in the nature of a trial de novo with the burden of proof on the Secretary. Appellants did not see fit to avail themselves of this right to contest the Secretary’s determination .and are thus bound by it. Similarly, the trusts established for appellants were from the moment of creation subject to judicial supervision upon appropriate application by appellants as beneficiaries under the applicable state trust law, here the law of Oregon. Thus, appellants’ rights with respect to any arbitrary or unreasonable provision of the trust or action on the part of the trustee are protected There is no unlawful discrimination because of Indian ancestry. Appellants acknowledge that Indian property is subject to, control during wardship. Here, during wardship, their need of assistance was determined by the procedure prescribed by Congress and their property was placed in trust with the prescribed Congressional restrictions as a means of partially continuing wardship. The whole theme of the Klamath Termination Act is the general termination of govenmental guardianship of a tribal society and the recognition of the dignity of the individual and not discrimination against him. Appellants’ second contention is that in the Klamath Termination Act Congress has abdicated its Constitutional power over and duty to the Indians in favor of private corporations in violation of Article I, Section 1 of the Constitution. While Congress cannot delegate to private corporations or anyone else the power to enact laws, it may employ them in an administrative capacity to carry them into effect. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). “The true distinction * * * is between the delegation of the power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” In the Klamath Termination Act, Congress declared distinctly and in considerable detail the objects to be accomplished and its policies and standards with respect to the removal of restrictions from the Indians and their property. Congress designated the Secretary of the Interior as its instrument for the execution and management of the termination, that is, as its administrator, and in addition specifically prescribed alternative methods of carrying out such management, one of which was the creation of private trusts with trustees selected by the Secretary. Thus, Congress exercised its law making power by authorizing termination of restrictions and setting forth certain required procedures. It delegated to the Secretary only the authority to determine the appropriate method of protecting and managing the property of Indians in need of assistance. The Secretary in the exercise of that judgment selected one of the means actually authorized by Congress. The fact that national banking institutions have had extensive experience in the management and administration of trusts indicates that Congress in providing for the creation of trusts, and the Secretary in choosing such method, acted so as to provide what was in their opinion the best possible protection for the Indians affected. With respect to the terms of the trusts themselves, they clearly embody the policies, objectives and standards of Congress and contain nothing contrary thereto. As was stated by the district court, Article 11(c) of each trust, which permits the trustee to terminate part or all of the trust when he finds the beneficiary capable of managing his own property, “is not a delegation of any authority conferred by law upon the Secretary, it is simply a provision placed in the trust agreement pursuant to the powers of the Secretary to establish a trust, which was not limited by Congress as to terms and provisions and must be treated as a provision deemed by the Secretary to be for the protection and benefit of the beneficiary of the trust.” Finally, appellants contend that the ballot submitted to them was not in compliance with the requirements of the Act. Their objection to that portion of the ballot directed to withdrawing members was abandoned during oral argument before this court, but with respect to that portion of the ballot directed to those electing to remain in the tribe, it is appellants’ contention that the choice given them required that they waive objections to the tribal management plan submitted to them at that time in order to remain, and that such violated Section 564d(a) (2), which did not require such a waiver. First, the terms of Section 564d (a) (2) did not specifically require that, any particular form of ballot be used, nor did they require that a form of plan be-submitted to appellants at the time they made their election. Second, the section did not give appellants any absolute right of objection. Although it did indicate that a plan satisfactory to the Secretary and the Indians electing to remain should be sought, it gave the Secretary ultimate authority to adopt a plan whether or not those who elected to remain in the tribe approved. Third, appellants were already members of the tribe so that, technically speaking, the only real election would be made by those who sought to withdraw from the tribe. Continued membership in the tribe necessarily acceded to the Secretary’s plan of management. By submitting the form of plan at the same time he submitted the ballot, the Secretary actually went further than the statute required and acquainted appellants with the plan which was to be adopted before they made their election to withdraw from or remain in the tribe. The judgment is affirmed. . The opinion of the district court is reported at D.C., 206 F.Supp. 783. . On June 25, 1963, appellant Tilda Chavez, also known as Mildred Chavez, filed a motion for an order dismissing her appeal and this court granted the motion and so ordered. . Title 25 U.S.C. § 564n further provides, in part: “* * # Provided, however, That no member shall be declared to be in need of assistance in conducting his affairs unless the Secretary determines that such member does not have sufficient ability, knowledge, experience, and ¿judgment to enable Mm to manage Ms business affairs, including the administration, use, investment, and disposition of any property turned over to such member and the income and proceeds therefrom, with such reasonable degree of prudence and wisdom as will be apt to prevent Mm from losing such property or the benefits thereof * * . Numerous authorities recognize this relationship between the United States and the Indians. See, for example, United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 208 (1835); Tiger v. Western Investment Company, 221 U.S. 286, 31 S.Ct. 578, 55 L.Ed. 738 (1911) ; United States v. Waller, 243 U.S. 452, 37 S.Ct. 430, 61 L.Ed. 843 (1916) ; United States v. Nice, 241 U.S. 591, 36 S. Ct. 696, 60 L.Ed. 1192 (1916) ; Brader v. James, 246 U.S. 88, 38 S.Ct. 285, 62 L.Ed. 591 (1917) ; Sunderland v. United States, 266 U.S. 226, 45 S.Ct. 64, 69 L. Ed. 259 (1924); and Board of Comm’rs. of Creek Co., Okl. v. Seber, 318 U.S. 705, 63 S.Ct. 920, 87 L.Ed. 1094 (1943). . The Proclamation was as follows: “1. The Federal restrictions on the property of the Klamath Indian Tribe of Oregon and individual members thereof having been removed, the Federal trust relationship to the affairs of the tribe and its members is terminated, effective August 13, 1961. “2. Hereafter, individual members of the tribe shall not be entitled to any of the services performed by the United States for Indians because of their status as Indians and, except as othenoise provided in the Act of August IS, 1954, supra, all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to members of the tribe [emphasis added] and the laws of the several states shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction. “3. Nothing in this proclamation shall affect the status of members of the Klamath Tribe as citizens of the United States.” . In addition to their general and inherent jurisdiction over trusts and actions to establish or enforce them, courts of equity have the right to exercise a supervisory control over trustees. United States National Bank of Portland v. Guiss, 214 Or. 563, 331 P.2d 865 (1958). Furthermore, although the courts will not interpose their judgment upon the trustee in the exercise of a discretionary power, they will control, or correct an unreasonable or arbitrary exercise of such a power. In re Strome’s Estate, 214 Or. 158, 327 P. 2d 414 (1958). . From an annotation in 79 L.Ed. 474 at page 485, entitled “Delegation of Legislative Power.”
5641720-27116	MEMORANDUM AND ORDER GARCIA-GREGORY, District Judge. A District Court may refer pending dis-positive motions to a Magistrate Judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Loc. Rule 72(a). Any party adversely affected by the report and recommendation may file written objections within ten days of being served with the Magistrate Judge’s report. See 28 U.S.C. § 636(b)(1). A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which specific objection is made.” Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191-92 (D.P.R.2005) (citing United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). Failure to comply with this rule precludes further review. See Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). In conducting its review, the Court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge.” 28 U.S.C. § 636(a)(b)(l). Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985); Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003). Furthermore, the Court may accept those parts of the report and recommendation to which the parties do not object. See Hernandez-Mejias v. General Elec., 428 F.Supp.2d 4, 6 (D.P.R.2005) (citing Lacedra v. Donald W. Wyatt Detention Facility, 334 F.Supp.2d 114, 125-126 (D.R.I.2004)). On September 20, 2007, the United States Magistrate Judge Bruce J. McGiv-erin issued a Report and Recommendation in this case, recommending that Plaintiff’s Motion for Contempt, (Docket No. 7), be granted. Defendants SOS Security Service, Inc. and Edgardo Batiz Ramia (“Defendants”) filed three separate Motions for extension of time to object to the Report and Recommendation. Defendants filed said motions on October 1, 2007, October 22, 2007, and November 13, 2007. (Docket Nos. 26, 28, 32). The Court granted all three of Defendants’ requests for an extension of time to object to the Report and Recommendation. (Docket Nos. 27, 29, 34). On November 20, 2007, Defendants once again requested an extension of time to object to the Magistrate Judge’s Report and Recommendation. (Docket No. 37). However, the Court denied said request. (Docket No. 38). Thus, Defendants have failed to file any timely objections to the Report and Recommendation. The undersigned, however, has made an independent examination of the record in this case and ADOPTS the Magistrate Judge’s findings and recommendations as the opinion of this Court. Accordingly, the Court GRANTS Plaintiffs Motion for Contempt. Defendants are found in civil contempt by reason of their failure to comply with the terms of the Consent Judgement. Nonetheless, Defendants may purge themselves of contempt if they comply with any of the alternatives recommended by Magistrate Judge Bruce J. McGiverin in his Report and Recommendation. (Docket No. 25). IT IS SO ORDERED. REPORT AND RECOMMENDATION RE: PETITION FOR ADJUDICATION OF CIVIL CONTEMPT BRUCE J. McGIVERIN, United States Magistrate Judge. PROCEDURAL BACKGROUND Plaintiff Elaine L. Chao (“plaintiff’ or “Secretary”), the Secretary of the United States Department of Labor (“DOL”), filed a complaint against defendants SOS Security Services, Inc. (“SOS”) and SOS’s president, Edgardo Batiz Ramia, alleging violations of several provisions of the Fair Labor Standards Act of 1938 (“FLSA”), as amended, 29 U.S.C. §§ 201, et seq. (Docket No. 1). The parties subsequently entered into a Consent Judgment that was approved and ordered by this court on April 6, 2006. (Docket No. 4). On May 16, 2007, plaintiff filed a Petition for Adjudication of Civil Contempt alleging that defendants have failed to comply with three distinct requirements of the Consent Judgment. (Docket No. 6). First, plaintiff alleges that defendants have not paid to the DOL $105,061.68 of the $137,451.04 of overtime compensation required under Part II of the Consent Judgement. Id. Second, plaintiff alleges that defendants, in violation of Part I of the Consent Judgment, have continued to deprive their employees of overtime compensation as required by Sections 7 and 15(a)(2) of the FLSA. Id. And third, plaintiff alleges that defendants have violated Part I of the Consent Judgment by failing to keep adequate employment records. Plaintiff seeks an adjudication of contempt, orders mandating that defendants come into compliance, and imposition of costs and expenses. Id. The case was assigned to me pursuant to 28 U.S.C. § 636(b)(1) for hearing and a report and recommendation. (Docket No. 10). The parties have filed memoranda supporting their respective positions, and an evidentiary hearing was held on August 27, 2007, during which the parties reached certain stipulations as to plaintiffs claims. As set forth below, I recommend that the Secretary’s motion for an adjudication of civil contempt be GRANTED. FACTUAL BACKGROUND The following facts are drawn from the testimony presented during the evidentia-ry hearing, the parties’ on-the-record stipulations, and/or documents submitted by the parties. A. Failure to Comply with Order to Pay Back Wages As part of the Consent Judgment, this court ordered defendants to pay a total of $137,451.04 in back wages and post-judgment interest to the DOL Wage and Hour Division for distribution to 65 employees. (Docket No. 4, 8-2, ¶ 2.a). These back wages correspond to the time period from February 9, 2002, until February 7, 2004. Payment was to be made in one lump-sum payment of $20,000 with the balance to be paid in 28 monthly installments of $4,194.68 beginning April 6, 2006. (Docket No. 4). The Consent Judgement contains an acceleration clause that provides that “[i]n the event that any one installment payment is not made within 10 days of the due date all remaining installment payments become due immediately.” (Docket No. 4). Defendants made the lump-sum payment of $20,000 and two payments $4,194.68, although they made the second of these payments 45 days late, thus activating the Consent Judgment’s acceleration clause. From June 15, 2006, until January 7, 2007, defendants made no further payments toward their debt. Starting January 8, 2007, defendants began making payments of $1,000 per month. (Docket No. 8-2). The parties stipulated at the evidentiary hearing that defendants currently owe $103,561.68 in back wages under the Consent Judgment, plus additional post-judgment interest due upon the date this amount is paid. Defendants, while not disputing the foregoing, presented testimony of two witnesses to support their contention that de fendants were financially unable to comply with the Consent Judgement. Defendants first presented the testimony of SOS’s controller, Heriberto Rios Rivas, who managed SOS’s financial and bank records for the last three years. He testified that SOS has been operating at a loss since January 2007, and has lost an estimated $30,000 to $40,000 in the first six months of this year. SOS earned a profit of $120,000 in 2005, but lost approximately $50,000 to $60,000 in 2006. Mr. Rios prepared a financial statement dated June 30, 2007. (Hearing Exh. 3). That financial statement indicates, inter alia, that “Officer’s Compensation” rose from $88,000 in 2005 to $154,450 in 2006; that “Salaries” rose from $111,201 in 2005 to $174,655 in 2006; and that “Contracted Services” dropped from $1,448,700 in 2005 to $1,078,881 in 2006. Id. SOS previously had a line of credit with R & G Premier Bank (“R & G”), but the credit line is not presently available, and SOS currently owes R & G $109,768.00 for a business loan which is subject to a monthly payment plan. (Hearing Exh. 1). SOS has only one bank account, and Rios identified incomplete copies of the statements for that account for January, February, March, April, May and June of 2007. (Hearing Exh. 4). Those statements indicate monthly deposits totaling $121,651.55 in January, $101,089.22 in February, $137,969.77 in April, $137,214.38 in May, and $124,716.38 in June. Id. The same statements reflect debits of $114,725.95 in January, $110,287.39 in February, $143,994.31 in April, $131,149.29 in May, and $124,728.23 in June. The statements do not include copies of cancelled checks or complete information as to the persons or entities that received the funds withdrawn, and therefore constitute no evidence as to what the withdrawn money was used for. The last statement provided, which covered transactions for June 2007, reflects a negative balance in the account. Id. Rios testified that since signing the Consent Judgment in April 2006, SOS has made efforts to pay the money owed in back wages by increasing revenues and decreasing expenses. SOS has taken legal action against two clients to recover receivables, and has sent out proposals to obtain new clients. In addition, SOS eliminated two positions (secretary and messenger). In January 2007, Rios proposed reducing salaries of all employees, but no decision was made on this. SOS pays approximately $32,000 every two weeks in payroll, not including fixed salaries. SOS pays $5,000 to $6,000 weekly in fixed salaries for Rios, Carloz Batiz Ramia, Edgardo Batiz Ramia, and Carlos Batiz Torres. Except for Rios, all of SOS’s salaried employees are relatives of defendant Batiz. SOS filed an annual tax return in 2004 but did not file annual returns for 2005 and 2006 because the necessary documents were undergoing evaluation by an independent auditor. SOS filed quarterly returns for 2005 and 2006 but did not present these documents in court. SOS filed no annual reports in 2005 and 2006 with the Puerto Rico Department of State. No one from SOS contacted DOL in July 2007 when SOS ceased making payments. Rios received a phone call from DOL regarding the $1,000 payments, but did not at that time provide DOL with any information regarding SOS’s financial situation. SOS’s owner and President, co-defendant Edgardo Batiz Ramia, also testified during the hearing. Batiz testified that defendants were financially unable to comply with the Consent Judgment’s payment plan, that in September 2006 SOS lost several actual and potential clients because DOL issued a press release regarding SOS’s failure to comply with the FLSA, and that some of SOS’s security guards made comments adverse to SOS and its clients. Accordingly, Batiz blames the DOL for SOS’s inability to pay the required back wages. Batiz testified that he has not received salary for six months and has made efforts to increase revenues to pay the amount owed under the Consent Judgment. These efforts include bringing two lawsuits against clients who owe SOS money. Batiz expects that $500,000 will be collected in 2008 as the result of one of the lawsuits. For the last year and a half, Batiz has attempted to sell a property he owns in Cabo Rojo with $800,000 equity but has not received any offers. Batiz said that he put a “for sale” sign on the property and listed it with a realtor, but could not recall the realtor’s name. Batiz also owns a house valued at $280,000 that has a mortgage of approximately $220,000. Ba-tiz has not attempted to take out second mortgage loans on either property in order to pay the debt and believes that he would be unable to obtain such loans because he has been late on making payments for the mortgage he has on the Cabo Rojo property. Batiz has filed personal annual income tax returns for each of the last three years, but did not submit them to court. His wife works for the Puerto Rico government and earns approximately $80,000 per year. SOS signed an agreement in 2002 to comply with the DOL and to pay overtime to workers. Nevertheless, SOS to date has not made provisions to pay overtime to workers because of its policy that no guard will work more than 40 hours per week. B. Failure to Pay Overtime Part I of the Consent Judgment also provides that “Defendants shall not, contrary to section 7 of the [FLSA], employ any of their employees in any workweek ... for work weeks longer than the hours now, or which in the future become, applicable under sections 7 and 15(a)(2) of the [FLSA], unless the said employees receive compensation for their employment in excess of the prescribed hours at rates not less than one and one-half times the employees’ regular rates.” (Docket No. 4). Defendants stipulate that they are in contempt of this provision by not paying overtime to their employees since they signed the Consent Judgment in April 2006. The parties are currently investigating the amount of back wages defendants owe corresponding to the time period from February 9, 2004, to the present, and plaintiff reserves all rights to collect any unpaid overtime wages. C. Failure to Keep and Make Available Accurate Employment Records Part I of the Consent Judgment also requires that “Defendants shall not fail to make, keep, and preserve adequate records of their employees and of the wages, hours, and other conditions and practices of employment maintained by them as prescribed by the Regulations issued pursuant to Section 11(c) of the [FLSA] and found at 29 CFR Part 516.” (Docket No. 4). During a pre-hearing status conference with the undersigned, the parties reached the following stipulations to resolve plaintiffs claim that defendants are in contempt of the Consent Judgment’s record keeping provision: Defendants shall produce to the Caribbean District Office of the DOL’s Wage & Hour Division no later than 60 days from date of entry of the court’s order the following documents: 1. Copies of time and attendance sheets filled out by employees for the period of February 10, 2004 through the present. These time sheets will be organized by pay period; 2. A list of all employees, present and former, employed by defendants during the period of February 10, 2004 through the present. This list will contain the following information: each employee’s address, telephone number, social security number, rate(s) of pay, date of hire and date of termination; 3. An electronic back-up of pay stubs maintained in defendants’ Peachtree Payroll System for the period of February 10, 2004 through the present. The pay stubs will be produced on compact disk in Excel format; 4. An Excel worksheet in electronic form, for the period of February 10, 2004 through the present containing all pay periods, employees’ names, social security numbers, rate(s) of pay, hours worked in the pay period by each employee, and amount paid in the pay period to each employee. This spreadsheet will identify any back wages due to employees. The spreadsheet will be organized by employee and by pay period; 5. A list of all of defendants’ clients where employees were assigned from the period of February 10, 2004 to the present; and 6. Any other payroll records for the period of February 10, 2004 to the present. DISCUSSION A civil contempt proceeding is a proper means for ensuring compliance with in-junctive orders issued to enforce the FLSA. McComb v. Jacksonville Paper, Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599 (1949); Hodgson v. Hotard, 436 F.2d 1110, 1114 (5th Cir.1971). In McComb, the Supreme Court harbored “no doubts concerning the power of the District Court to order respondents, in order to purge themselves of contempt, to pay the damages caused by their violations of the decree.” McComb, 336 U.S. at 193, 69 S.Ct. 497. The party seeking an order of civil contempt must demonstrate by clear and convincing proof that the opposing party has violated the court’s injunctive decree. Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 77 (1st Cir.2002); Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir.1991). Nevertheless, the violation need not be willful to trigger contempt sanctions, nor must the plaintiff prove that the defendant violated the court’s order in bad faith. McComb, 336 U.S. at 191, 69 S.Ct. 497; Goya Foods, Inc., 290 F.3d at 76 (“The law is firmly established in this circuit that good faith is not a defense to civil contempt.”). As the Supreme Court stated in McComb, The absence of willfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance.... Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act.... An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently. The force and vitality of judicial decrees derive from more robust sanctions. And the grant or withholding of remedial relief is not wholly discretionary with the judge.... The private or public rights that the decree sought to protect are an important measure of the remedy. Id. at 191. Courts have interpreted McComb as holding that district courts not only have the power but the duty to order payments to be made by a party to purge civil contempt of orders issued to rectify wage violations. Donovan v. Sovereign Security, Ltd., 726 F.2d 55, 59-60 (2nd Cir.1984); Hodgson, 436 F.2d at 1114-15; Durkin v. Casa Baldrich, Inc., 111 F.Supp. 71, 75-76 (D.P.R.1953), aff'd 214 F.2d 703 (1st Cir.1954). Importantly, the “purpose of [an] injunction to restrain the withholding of wages due [under the FLSA] is not to collect a debt owed by an employer to his employee but to correct a continuing offense against the public interest.” Hodgson, 436 F.2d at 1113-14. Because an injunction issued under the FLSA is not “a mere money judgment” but a directive taken to “redress a wrong being done to the public good,” the Fifth Circuit in Hodgson found the district court abused its discretion when it failed to make a civil contempt finding against an employer that had long disobeyed the court’s injunction to refrain from withholding statutory wages of twelve employees. Id. Once the Secretary has proven that the employer is delinquent in complying with an injunction under the FLSA, she has established a prima facie case for civil contempt. Id. at 1115. At that point, the Secretary does not bear the burden of proving that the employer was able to comply with the earlier judgment. Instead, it is incumbent on the employer, if civil contempt is to be avoided, to prove that it was impossible for him to comply with the court’s order. Star Fin. Servs., Inc. v. AASTAR Mortg. Corp., 89 F.3d 5, 13-14 (1st Cir.1996); Hodgson, 436 F.2d at 1115. The employer’s burden is a heavy one. A party who violates an injunction under the FLSA must show that he was “reasonably diligent and energetic in attempting to accomplish what was ordered.” Palmigiano v. Garrahy, 448 F.Supp. 659, 670 (D.R.I.1978). Nevertheless, a defendant must do more than simply show that his efforts to comply were substantial or made in good faith; rather, the defendant must “plainly and unmistakably” demonstrate an inability to comply with the court’s order. Donovan v. Burgett Greenhouses, Inc., 759 F.2d 1483,1486 (10th Cir.1985); Hodgson, 436 F.2d at 1115. “This is particularly true when, as here, the defense — i.e., financial inability to comply — rests on facts which are peculiarly within the defendant’s own knowledge.” Donovan, 759 F.2d at 1486, citing Hodgson, 436 F.2d at 1115. A defendant claiming inability to comply with an injunction bears the burden of production as to that defense. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983). In this case, there is no dispute that the Secretary has established a prima facie case of civil contempt insofar as SOS concedes that it failed to make timely payments as required by the Consent Judgment and currently owes $103,561.68 in back wages, plus additional post-judgment interest due upon the date this amount is paid. However, defendants argue that an order of civil contempt should not issue because they were financially unable to comply with the injunctive order. Defendants supported their position during the evidentiary hearing with the testimony of SOS’s owner (co-defendant Batiz) and its controller. SOS also submitted an unaudited financial statement, and partial bank statements corresponding to the first six months of 2007. On the whole, however, the evidence SOS submitted was sketchy and incomplete, and was insufficient to meet defendants’ burden of proving inability to comply with the payment plan ordered in the Consent Judgment. It should be remembered initially that the Consent Judgment became effective in April 2006. At the time defendants signed the Consent Judgment, SOS by its own admission, had earned a profit of $120,000 for the previous year (2005), and SOS has provided no explanation as to why those profits could not have been applied to satisfy the judgment. Nor have defendants provided the court with sufficient, reliable evidence regarding the state of SOS’s finances in June 2006— when defendants discontinued making the required payments — or for the rest of that year. In particular, although defendants claim SOS’s business dropped during 2006, defendants have produced no bank records for that year that would substantiate the amounts of money SOS received or the amount that was paid for operating expenses. SOS did produce an unaudited financial statement (Hearing Exh. 3) that indicates a drop in revenue from 2005 to 2006; however, that same statement indicates that salaries paid to SOS’s fixed salary employees (which, apart from the controller, consist of defendant Batiz his father and his brother) rose from $111,201 in 2005 to $174,655 in 2006. The financial statement also indicates that compensation paid to SOS’s officers rose from $88,000 in 2005 to $154,450 in 2006. Thus, SOS’s own financial statement indicates that Mr. Batiz and his relatives were receiving substantially greater income from the company during 2006 when SOS’s revenues and profits supposedly were going down. The financial information provided for the first half of 2007 also fails to satisfy defendants’ heavy burden. In particular, SOS provided only selected pages from its bank statements corresponding to the months of January through June of 2007. (Hearing Exh. 4). The pages submitted document total monthly deposits ranging from approximately $101,000 to $137,000, and total monthly withdrawals ranging from approximately $110,000 to $143,000. Defendants, however, failed to provide complete copies of the bank statements and failed to provide cancelled checks which could have demonstrated who received the money that was withdrawn from the account. This omission is both telling and critical, since defendants have the heavy burden of proving financial inability to pay and the evidence to substantiate this claim is “peculiarly within the defendant’s own knowledge” and control. Hodgson, 436 F.2d at 1115. In this regard, Hodgson is instructive. There, the Fifth Circuit refused to credit the employer’s testimony that he had no money or property to pay ordered minimum wages because that testimony was not substantiated by documentary evidence of how his assets had been disposed of. Id. at 1115— 16. Here, defendants could have provided the court with documentary evidence in the form of cancelled checks or other documents showing how much of the money withdrawn from the account was received by defendant Batiz and his family, and how much went for operating expenses. Hence, I cannot credit defendants’ unsubstantiated testimony that SOS had no assets that could have been applied to payment of back wages. Defendant Batiz has also failed to demonstrate his personal inability to comply with the Consent Judgment. Although he testified that the he does not have the ability to pay, and submitted a copy of his bank statements, he did not submit any copies of his income tax returns. Moreover, although Mr. Batiz owns a property in Cabo Rojo with an equity of $300,000, and a personal residence, he has not attempted to obtain a second mortgage loan on either property in order to satisfy the judgment against him. Moreover, his testimony that he has unsuccessfully attempted to sell the Cabo Rojo property is unpersuasive absent any substantiation that he advertised the property in any media or listed the property with a licensed realtor. In short, I do not credit Mr. Batiz’s testimony that it is impossible to sell a property, in which he has $300,000 in equity, at a sufficient margin to cover the balance of his debt ($103,561.68). Finally, I note that to date defendants continue to violate the FLSA and Part I of the Consent Judgment by failing to pay overtime to SOS’s employees. SOS agreed with DOL in 2002 to start paying overtime wages under the FLSA, and its failure to comply with that agreement led to the filing of the present case to collect the overtime. And even after signing the Consent Judgment, and up to the date of the evidentiary hearing, SOS has continued to fail to pay its employees overtime wages demanded by the FLSA. These longstanding violations, coming after ample warning, undermine Mr. Batiz’s credibility in testifying that he and SOS have done everything in their power to try to pay the ordered back overtime wages. To the contrary, I find that defendants have willfully violated the terms the Consent Judgment and failed to “plainly and unmistakably” demonstrate an inability to comply with the court’s order. Donovan, 759 F.2d at 1486; Hodgson, 436 F.2d at 1115. CONCLUSION In view of the foregoing, I recommend that plaintiffs motion for an order of civil contempt be GRANTED. Accordingly, I recommend that this court order that defendants SOS Security Service, Inc. and Edgardo Batiz Ramia be found in civil contempt by reason of their failure to comply with the terms of the Consent Judgment, and that they may purge themselves of contempt only by: 1) Paying to the Secretary of Labor within 60 days of the date of any order adopting this report and recommendation the amount of $103,561.68 in back wages due under the terms of the Consent Judgment, plus post-judgment interest due upon the date of payment; 2) That within five working days of any order approving this report and recommendation defendants post a bond secured by real property in an amount sufficient to cover the amount owed in the preceding paragraph; and 3) Producing to the DOL’s Wage and Hour Division within 60 days from the date of any order adopting this report and recommendation the documents and information the parties stipulated to as set forth in Part C of the Factual Background Section above . I further recommend that the Secretary be granted leave to file: 1) a motion for an order for defendants to pay to the DOL any unpaid overtime wages for defendants’ employees corresponding to the time period from February 10, 2004, to the present; and 2) a motion that defendants pay to the DOL the costs of investigating this matter and bringing an action to enforce the Consent Judgment. See McComb, 336 U.S. at 191, 69 S.Ct. 497; Goya Foods, Inc., 290 F.3d at 78.
836846-14749	OPINION OF THE COURT ADAMS, Circuit Judge. Anthony La Duca appeals from a denial by the district court of his motion for a new trial, which had been predicated upon newly discovered evidence. La Duca had premised his motion on an affidavit by one John Neiman stating that he was now prepared to testify to La Duca’s innocence. Neiman was the other principal participant in the activities for which La Duca had been convicted. The trial judge denied the motion, reasoning that inasmuch as La Duca had not sought to compel Neiman’s testimony at the trial by requesting that the government confer use immunity upon Neiman, he had not exercised the diligence in procuring the newly discovered evidence that is required to prevail on such motion. Although we affirm the order denying the motion for a new trial on the strength of all the facts in the record, we wish to make clear that we do not affirm the proposition advanced by the trial judge since it is contrary to the settled rule of this Court as well as that of other circuits. La Duca, Neiman, and two other men were indicted in 1975 for conspiring to embezzle money from a union pension fund, for embezzling $100,000 from that fund, and for related offenses. Neiman pleaded guilty to the conspiracy count on November 24,1975, and La Duca stood trial by himself on the single charge of embezzlement. La Duca was convicted based on a jury verdict entered on January 23, 1976. On March 1, 1976, Neiman was sentenced to three years imprisonment and the remaining counts against him were dismissed. La Duca was sentenced on March 24, 1976, to a three year prison term. For purposes of this appeal it is necessary to review those aspects of La Duca’s trial that relate to Neiman’s availability as a witness. Neiman appeared at the trial with his attorney on January 21, 1976, after efforts to locate him were made by both the government and the defense. Neiman’s attorney informed the judge that his client would not testify on behalf of either side, and that if called to the stand, Neiman would invoke his privilege against self-incrimination. Counsel also stated that he had apprised both sides of this position when they sought Neiman’s testimony. The judge asked Neiman if he would invoke the privilege against self-incrimination if he were called, and Neiman answered in the affirmative. Defense counsel moved to have Neiman invoke the privilege in the presence of the jury, but the judge denied the motion on the ground that invocation of the privilege is a matter of no legal significance. Neiman was excused and left the courtroom. Then, defense counsel pointed out that although several counts were still open against Neiman, in view of the fact that Neiman had already pleaded guilty to one count as part of a plea bargain to dismiss the remaining counts, he might not be able to invoke the fifth amendment. The judge reprimanded defense counsel for not raising the point before Neiman was dismissed, but agreed to examine Neiman if he were brought back. However, Neiman could not be found. Defense counsel, after consulting with La Duca on whether he should press the issue, conceded that perhaps Neiman could still invoke the fifth amendment privilege, and let the matter rest. In October, 1977, La Duca moved for a new trial, pursuant to Federal Rule of Criminal Procedure 33, based on newly discovered evidence. His motion was accompanied by an affidavit in which Neiman declared that he was now willing to give testimony that would exculpate La Duca, and explained that he had not appeared at trial on La Duca’s behalf because at that time he was still in jeopardy on the open counts of the pending indictment and feared that if he testified a more severe sentence would be imposed on him in retaliation for his testifying. To prevail on a motion for a new trial on the ground of newly discovered evidence, a defendant bears the heavy burden of establishing five requirements: (a) the evidence must be in fact, newly discovered, i. e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. The district court based its denial of the motion for a new trial upon La Duca’s failure to meet the second requirement, stating that La Duca had not been diligent in attempting to obtain the evidence prior to the conclusion of his trial since La Duca had not requested that the government confer use immunity upon Neiman. The trial judge conceded that as the law now stands, “absent special circumstances, the Sixth Amendment imposes no affirmative obligation on the government to confer immunity on a witness in order to make that witness’s testimony available to a defendant.” Still, the judge asserted, “For me, however, ... a Sixth Amendment breach would occur.” The lower court further posited that even if no sixth amendment obligation existed and even if the court is powerless to compel the government to immunize a defense witness, due process considerations of fairness “mandate that the government request use immunity for a defendant’s witness or be barred from prosecuting the defendant.” Having laid this groundwork, the district court concluded that since La Duca had not requested the government to immunize Neiman, he had failed to exercise due diligence and consequently was not entitled to a new trial. We cannot subscribe to the district court’s analysis, which rests on two propositions. First, it is maintained that the sixth amendment or the due process clause mandates that the government make use immunity available to a defendant. Second, as a corollary of the foregoing, it is contended that defense counsel does not exercise due diligence in obtaining evidence if he fails to request immunization of a witness who would otherwise invoke the fifth amendment privilege. The first proposition, though suggested by a number of commentators as a practical solution to the recurring problem of obtaining the allegedly exculpatory testimony of defense witnesses who refuse to incriminate themselves, has been rejected to date by this as well as other courts of appeals. Rather, it has been uniformly accepted that the grant or denial of immunity is within the sole discretion of the executive branch of government, and that neither the courts nor defense counsel may force the prosecutor to compel the testimony of a defense witness. As we recently confirmed in United States v. Niederberger, 580 F.2d 63 (3d Cir. 1978): The rule in this Circuit is clear; a trial court has no authority to provide use immunity for a defense witness. United States v. Morrison, 535 F.2d 223, 228-29 (3d Cir. 1976) cert, denied, (197-); United States v. Berrigan, 482 F.2d 171, 190 (3d Cir. 1973). Similarly, except in an extraordinary circumstance . . . , a trial court cannot compel the Government to offer such immunity to a prospective witness. Morrison, supra, 535 F.2d at 229. Since the first proposition contradicts the accepted rule of law in this Court, its corollary, the second proposition, must fail. A defendant cannot be faulted for not exercising due diligence to request use immunity if settled case law does not indicate that he could successfully make such a request. Although we are constrained to disagree with the district court’s rationale, we nevertheless affirm the denial of the motion for a new trial because the record provides alternative grounds for refusing to grant the motion. The defense exhibited a lack of due diligence in failing to bring to the judge’s attention until after Neiman had departed from the courtroom that the privilege against self-incrimination might no longer be available to Neiman. Whether or not Neiman in fact was still privileged at the time in question is now irrelevant. Since the issue was not clearcut at that time and since the defense did not pursue its resolution as part of a sustained effort to compel Neiman’s testimony, the defense never discharged its responsibility to act diligently in procuring the evidence on which it now seeks to base its motion for a new trial. We also note that La Duca has not satisfied the weighty burden of convincing the district court that the newly discovered evidence “would probably produce an acquittal.” Neiman’s lengthy criminal record, which includes crimes of fraud, would have made him easily impeachable. Particularly reminiscent of the situation in this case, is Neiman’s posture in United States v. Criso-na, 271 F.Supp. 150 (S.D.N.Y.1967), aff’d 416 F.2d 107 (2d Cir. 1968). There, a co-defendant sought a severance on the ground that Neiman’s testimony would exculpate him. Severance was denied and, despite the co-defendant’s forecast, Neiman subsequently testified as a government witness. The defense has made no effort to dispel the inevitable inference from Neiman’s past that Neiman’s testimony would be unlikely to result in an acquittal. We have reviewed La Duca’s other contentions and find them to be without merit. Accordingly, the order of the district court will be affirmed. . This Court affirmed the conviction, United States v. La Duca, 546 F.2d 417 (3d Cir. 1976), and the Supreme Court denied certiorari, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). La Duca’s sentence was subsequently reduced to eighteen months. . Appellee’s Supplemental Appendix at 35b-41b. . Id. at 43b-51b. . United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976), quoting United States v. Howell, 240 F.2d 149, 159 (3d Cir. 1956). . United States v. La Duca, 447 F.Supp. 779 (D.N.J.1978). . Id. . Id. at 13. . Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71, 166-70 (1974); Comment, Right of the Criminal Defendant to the Compelled Testimony of Witnesses, 67 Colum.L. Rev. 953, 956 n.19 (1967); Comment, A Re-Examination of Defense Witness Immunity: A New Use of Kastigar, 10 Harv.J.Legis, 74, 79 (1972); Note, The Sixth Amendment Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv.L.Rev. 1266 (1978). . It is contended with a degree of ingenuity that in the aftermath of 18 U.S.C. § 6002 and Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), a practical approach exists for resolving the competing values of the fifth amendment privilege of a witness against self-incrimination and the sixth amendment right of a defendant to have compulsory process for obtaining witnesses in his favor. Traditionally, it has been held that a defendant’s right must yield to the witness’ privilege, and that the defendant may be tried without the benefit of the exculpatory testimony. E. g., Holloway v. Wolff, 351 F.Supp. 1033, 1037-38 (D.Neb.1972), rev’d on other grounds, 482 F.2d 110 (8th Cir. 1973). Although theoretically the witness could be stripped of his privilege by granting him immunity from prosecution, prior to 1970 such an approach would have severely hampered the efforts of law enforcement authorities, who were at that time required to provide full transactional immunity to prospective witnesses to remove their constitutional privilege. However, in 1970 Congress enacted 18 U.S.C. § 6002, which confers only use immunity upon witnesses who are compelled to testify, and this statute was upheld against constitutional attack in Kastigar. Since under use immunity the government may still prosecute a witness on the basis of evidence gathered from sources independent of the witness’ testimony, it is argued that the government’s interest in withholding immunity is now insufficient to outweigh the defendant’s sixth amendment interest in producing exculpatory testimony, and that consequently the government must immunize defense witnesses. See Westen, supra note 8, at 166-70. The government maintains that notwithstanding the availability of use immunity, a requirement that it be compelled to immunize defense witnesses would jeopardize its investigations and prosecutions, United States Attorneys Manual § 1-11.230 (1977), and urges here that the district court’s order denying La Duca’s motion for a new trial be affirmed on other grounds. Thus, neither La Duca nor the government has advanced on appeal the theory propounded by the district court. In view of this fact and in view of the fact that even were this Court now to adopt the first proposition of the district court we would be precluded from affirming the district court’s rationale for the reasons set forth in our discussion of that court’s second proposition, it is inappropriate at this juncture to reconsider the settled rule as enunciated in our earlier opinions. . E. g., United States v. Housand, 550 F.2d 818, 824 (2d Cir.), cert. denied, 431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d 1066 (1977); United States v. Alessio, 528 F.2d 1079 (9th Cir. 1976); United States v. Allstate Mortgage Corp., 507 F.2d 492 (7th Cir. 1974), cert. denied, 421 U.S. 999, 95 S.Ct. 2396, 44 L.Ed.2d 666 (1975); United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973); Earl v. United States, 124 U.S.App.D.C. 77, 361 F.2d 531 (1966), cert. denied, 388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d 1370 (1967) (suggesting, however, at 361 F.2d at 534 n.l that there may be a due process violation if the prosecution immunizes its own witnesses while refusing to immunize defense witnesses). For a lone voice in opposition, see United States v. Gaither, 176 U.S.App.D.C. 274, 539 F.2d 753 (1976) (statement of Bazelon, C. J., as to why he voted to deny rehearing en banc), cert. denied, 429 U.S. 961, 97 S.Ct. 388, 50 L.Ed.2d 329 (1976); United States v. Leonard, 161 U.S. App.D.C. 36, 494 F.2d 955, 985 n.79 (1974) (Bazelon, C. J., concurring and dissenting). In United States v. Morrison, 535 F.2d 223, 229 (3d Cir. 1976), this Court commented that [tjhere are circumstances under which it appears due process may demand that the Government request use immunity for a defendant’s witness . . Such a circumstance was created in this case when prose-cutorial misconduct caused the defendant’s principal witness to withhold out of fear of self-incrimination testimony which would otherwise allegedly have been available to the defendant. The absence of any suggestion of prosecutorial misconduct in the present case makes Morrison inapplicable. . See, e. g., PAAC v. Rizzo, 502 F.2d 306, 308 n.1 (3d Cir. 1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975) (“It is proper for an appellate court to affirm a correct decision of a lower court even when that decision is based on an inappropriate ground.”) (emphasis in original).
3712584-26502	MEMORANDUM AND ORDER EARL E. O’CONNOR, Chief Judge. This matter comes before the court on defendants’ motion to dismiss. Wyandotte County Sheriff Owen L. Sully (hereinafter “Sully”) and the Board of Wyandotte County Commissioners (hereinafter “board”) argue that the claims asserted by plaintiffs Jeff Ford (hereinafter “Ford”), Sean Jordan (hereinafter “Jordan”), Mario Sanders (hereinafter “Sanders”) and Michael Shelby, Jr. (hereinafter “Shelby”) are barred by the doctrine of res judicata. The defendant board and Sully also assert that plaintiffs are collaterally estopped from litigating their claims. In addition, defendants contend that plaintiffs lack standing to pursue claims for declaratory and injunctive relief. For the reasons stated below, the court will deny defendants’ motion. I. STATEMENT OF FACTS Ford, Jordan, Sanders, and Shelby are juveniles who have been detained pending trial, or have been adjudicated as juvenile offenders and are awaiting commitment to a state youth facility. They were confined to the old Wyandotte County jail pursuant to standing orders of the Wyandotte County District Court. Plaintiffs allege that defendants have operated the county jail and county juvenile detention center in such a manner as to violate their First, Fourth, Eighth, and Fourteenth Amendment rights. The juvenile detainees further claim that violations of their constitutional rights have resulted in a substantial breakdown in the provision of basic services and humane treatment to juveniles in the county’s custody. Sheriff Sully and the defendant board contend that plaintiffs are precluded under the doctrines of standing, collateral estoppel, mootness and res judicata from litigating their claims. Defendants argue that plaintiff’s complaint is merely a “carbon copy” of grievances asserted by inmates at the county jail in February of 1985. In that case, Woodson v. Quinn, No. 85-3049, “adult citizens” alleged that they were subjected to illegal and unconstitutional conditions at the county jail. The Woodson court found that the jail was “an outdated facility that lacks the capacity to serve the needs of a county confinement center.” The parties in Woodson consented to the entry of a judgment and decree which outlined affirmative steps for defendants to take in order to address allegations asserted by the adult inmates. The decree included plans and specifications for the construction of a new detention facility. Defendants in Woodson were required to file quarterly reports with the court which describe operation of the new jail facility. In several of the quarterly reports, the defendant board and sheriff stated: [T]he juvenile detention facility is not included in [the Woodson ] lawsuit and therefore not under the Court’s present jurisdiction. Consequently, the operations and procedures policies and the staffing and training plans prepared and implemented by defendants concern only the new Wyandotte County jail and not the juvenile detention facility. See, e.g., Defendants’ Tenth Quarterly Reports at 5 n. 7 and Defendants’ Thirteenth Quarterly Report at 5 n. 6 in Woodson v. Quinn, No. 85-3049. The adult population at the Wyandotte County jail was transferred to the new detention complex in March of 1990. Juveniles in custody of the county, however, remained at the old jail. Juvenile detainees were not removed from the jail until October because the state withheld certification and licensure of the new juvenile facility as a result of construction and design deficiencies. On October 9, 1990, juvenile detainees were transferred from the old jail to the detention complex. Plaintiffs Sanders and Ford were among the juvenile detainees moved on October 9, 1990. Orders of release entered by the Wyandotte County District Court indicate that Ford and Sanders have been detained in more than one instance at the new complex. Most recently, Sanders was incarcerated in August of 1991 'and Ford was imprisoned during November of 1990. II. SUMMARY JUDGMENT STANDARDS In considering a motion for summary judgment, the court must examine all the evidence in a light most favorable to the nonmoving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir. 1981); Mahomes-Vinson v. United States, 751 F.Supp. 913, 916 (D.Kan.1990) A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. S.W. Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir. 1985); see also 6 J. Moore, Moore’s Federal Practice ¶ 56.04 (1990) (court is authorized to examine materials outside complaint to determine whether there is genuine issue of material fact to be tried). If the moving party does not bear the burden of proof, he must show “that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). This burden is met when the moving party identifies those portions of the record which demonstrate the absence of material fact. Id. at 323, 106 S.Ct. at 2552; Deines v. Vermeer Mfg. Co., 752 F.Supp. 989, 993 (D.Kan.1990). Once the moving party meets these requirements, the burden shifts to the party resisting the motion, who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986) (emphasis added). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleading.” Id. Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. at 2511; Tersiner v. Union Pac. R.R. Co., 740 F.Supp. 1519, 1522-23 (D.Kan.1990). III. DOCTRINE OF STANDING Defendants contend that Ford, Jordan, Sanders, and Shelby do not have standing to assert their claims. The standing doctrine “is designed to determine who may institute the asserted claim for relief.” O’Connor v. City & County of Denver, Colo., 894 F.2d 1210, 1214 (10th Cir.1990) (quoting ACORN v. City of Tulsa, Okla., 835 F.2d 735, 738 (10th Cir.1987)). In order to avoid futile proceedings, the court must determine whether the asserted injury was the consequence of defendants’ actions and whether prospective judicial relief will remove the harm. Standing problems are currently analyzed by the Supreme Court in terms of two inquiries: (a) “whether the [party] alleges that the challenged action has caused him injury in fact, economic or otherwise,” and (b) “whether the interest sought to be protected by the complainant is arguably within the zone of interests [sought] to be protected or regulated by the statute or constitutional guarantee in question.” Citizens Concerned v. City & County of Denver, Colo., 628 F.2d 1289, 1295 (10th Cir.1980) (quoting Ass’n of Data Processing Serv. Org. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970)), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981); see also Tribe, Con stitutional Law, Standing, § 3-17, at 79-80 (1978). The court has no trouble concluding that plaintiffs have a sufficient stake in this case to obtain judicial resolution of the controversy. We have carefully read the deposition testimony of Ford, Jordan, Sanders and Shelby. All four plaintiffs testified that the conditions of their confinement or the facilities in which they were detained were inadequate in the following particulars: toilets and other fixtures such as sinks and showers were filthy and inoperable; infestation of insects; delayed and deficient medical care; and insufficient supervision. All of the plaintiffs, with the exception of Ford, stated that their cells were unbearably hot. Shelby, Jordan and Ford added that they were deprived of the opportunity to participate in recreational activities and that they were not provided with clean clothing. Every juvenile detainee, except Jordan, testified that the quality or quantity of food furnished by defendants was meager. Three of the plaintiffs also stated that the lighting in their cells was substandard. More specifically, Jordan testified that defendants would not provide him with clean underwear and other clothing. Jordan added that he saw roaches every day where he slept. Sanders said that his arm “swelled up” from insect bites. Ford claimed that defendants failed to provide timely treatment for broken bones in his left hand. Ford and Sanders allege that they did not receive medical treatment until at least one week after they reported their injuries. Ford also testified that he did not receive “fair” treatment in the county’s new detention facility. Further, plaintiffs state that defendants were deliberately indifferent to grievances that they had filed concerning the conditions of their confinement. Plaintiffs’ complaints are certainly within the “zone of interests” protected by the First, Fourth, Eighth and Fourteenth Amendments. The court will deny defendants’ motion as to the standing doctrine. IV. DOCTRINE OF RES JUDICATA Sully and the defendant board contend that plaintiffs’ claims are barred by the doctrine of res judicata. Under res judicata or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating claims that were or could have been raised in that action. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980) (citing Cromwell v. County of Sac, Iowa, 94 U.S. 351, 352, 24 L.Ed. 195 (1876)); Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979). Stated differently, “ ‘a final judgment of the merits bars further claims by parties or their privies based on the same cause of action.’ ” Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979) (quoting Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979)); Wright v. Chandler, 264 F.2d 249, 253 (10th Cir.1959). There is no definition of “privity” which can be automatically applied to all cases involving the doctrine of res judicata. Lowell Staats Mining Co., Inc. v. Philadelphia Elec. Co., 878 F.2d 1271, 1275 (10th Cir.1989). Privity requires, at minimum, a substantial identity between the issues in controversy and a showing that the parties in the two actions are really and substantially in interest the same. Id.; St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1174 (10th Cir. 1979) (citing Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03, 60 S.Ct. 907, 916-17, 84 L.Ed. 1263 (1940) and Green v. Bogue, 158 U.S. 478, 503-04, 15 S.Ct. 975, 985, 39 L.Ed. 1061 (1895)). The determination of identity between litigants, for the purpose of establishing privity in connection with the doctrine of res judicata, is a factual question. Lowell Staats Mining, supra, 878 F.2d at 1276 (quoting Astron Indus. Assoc. v. Chrysler Motors Corp., 405 F.2d 958, 961 (5th Cir.1968)). In the court’s view, the res judicata doctrine cannot be applied in the case at bar. Ford, Jordan, Sanders, and Shelby certainly were not parties to the Woodson Consent Judgment and Decree. The complaint in Woodson identifies the plaintiffs in that case as “adult citizens.” The plaintiffs herein are “juveniles being represented by their next friend.”. In addition, plaintiffs are not privies to the Woodson decree. Quarterly reports filed by defendants in Woodson clearly establish a lack of “substantial identity” between the issues in this action and the issues in that case. Defendants state in quarterly reports that “the juvenile detention facility is not included in [the Woodson~\ lawsuit.” Defendants add in the reports that “the operations and procedures policies and the staffing and training plans prepared and implemented by defendants concern only the new Wyandotte County jail and not the juvenile detention facility.” The Woodson consent judgment and decree obviously did not include issues raised by juvenile detainees. The issues in that case were limited to the county’s plans and policies governing the detention of adults. Further, the interests of the juvenile plaintiffs are not “really and substantially” the same as those of the Woodson plaintiffs. If the interests of juvenile offenders were identical to those of their adult counterparts, there would be no reason to separate the two groups when they are imprisoned. The Kansas legislature, however, has repeatedly proscribed the confinement of juveniles with adults. See K.S.A. 19-1919 (juveniles shall be kept in quarters separate from adult criminals); K.S.A.1990 Supp. 38-1692(b)(4) (jail where juveniles are detained must provide for sight and sound separation of juveniles and incarcerated adults); K.S.A. 75-5390a (plan for removal of juvenile offenders from adult jails and adult lockups). Juveniles obviously are not confined with adults because they would be exposed to greater violence. Deterrence, incapacitation, and just punishment are important considerations in the administration of juvenile justice systems, but the primary goal of any such program is rehabilitation. See generally Juvenile Justice and Delinquent Prevention Act, 42 U.S.C. § 5602(b)(2) (policy of Congress is to provide resources for critically needed alternatives to juvenile institutionalization such as delinquency prevention and rehabilitation programs); Kansas Juvenile Offenders Code, K.S.A. 38-1601 (code shall be liberally construed to end that juveniles receive care, custody, guidance, control and discipline as will best serve juvenile’s reha bilitation). In order to carry out the goal of rehabilitating juvenile offenders consistent with their constitutional rights, plaintiffs contend that defendants are required to furnish them with “educational programs.” The “adult citizens” who filed suit in Woodson never asserted a claim for any such programs. The court concludes that Ford, Jordan, Sanders and Shelby were not parties or privies to the Woodson consent judgment and decree. Further, we are of the opinion that the claims in the instant action are not based on claims that were or could have been raised in Wood-son. The court will therefore deny defendants’ motion as to the application of res judicata. V. DOCTRINE OF COLLATERAL ESTOPPEL Defendants insist that plaintiffs are collaterally estopped from litigating their claims. The doctrine of collateral estoppel, or issue preclusion, is a judge-made rule that prevents relitigation of issues of fact or law “actually and necessarily determined” in a prior lawsuit. Montana v. United States, 440 U.S. 147, 153-55, 99 S.Ct. 970, 973-75, 59 L.Ed.2d 210 (1979); N. Natural Gas Co. v. Grounds, 931 F.2d 678, 681 (10th Cir.1991); Searing v. Hayes, 684 F.2d 694, 696 (10th Cir.1982). Whether the application of collateral estoppel is appropriate necessitates four inquiries: first, whether the party to be estopped was a party to or assumed control of the prior litigation; second, whether the issues presented are in substance the same as those resolved in earlier litigation; third, whether the controlling facts or legal principles have changed significantly since the earlier judgment; and finally, whether other special circumstances warrant an exception to the normal rules of preclusion. Montana v. United States, supra, 440 U.S. at 153-55, 99 S.Ct. at 973-75; Klein v. Comm’r of Internal Revenue, 880 F.2d 260, 262-63 (10th Cir.1989). As noted above, plaintiffs in the instant case were not parties to the Woodson decree. The complaint in the Woodson case was filed by “adult citizens.” Plaintiffs herein are juveniles. Further, the juvenile detainees were neither represented by parties to the original lawsuit nor did they assume control of that case. In addition, the legal principles which govern the adjudication and detention of juveniles are significantly different from those applied to the prosecution and incarceration adults. As noted in section III of this memorandum, the emphasis of the juvenile justice system is on rehabilitation. See Olson v. Maschner, 10 Kan.App.2d 289, 292, 697 P.2d 893, 895 (1985) (rehabilitation is primary purpose of juvenile offenders code to extent that rehabilitation is consistent with interests and safety of public). When adults are convicted of a crime, however, rehabilitation is not the only concern of the court. Deterrence, incapacitation, and just punishment are equally important considerations. See United States Sentencing Commission Guidelines Manual, 1.1 ¶ 2 (1990) (Sentencing Reform Act provided for development of guidelines that further basic purposes of criminal punishment). More important, the issues presented in this action are not the same as those resolved by the Woodson consent judgment and decree. The Woodson decree required defendants to submit quarterly reports outlining their progress in achieving mandated goals. Nineteen reports have been filed with the court to date. A cursqry review of those reports reveals that defendants’ efforts to comply with the decree were directed solely at the adult population. Indeed, defendants state as follows in several of the quarterly reports: [T]he juvenile detention facility is not included in this lawsuit, and therefore, not under the Court’s present jurisdiction. Consequently, the operations and procedures policies and the staffing and training plans prepared and implemented by defendant concern only the new Wyandotte County Jail and not the juvenile detention facility. See Defendants’ Quarterly Reports in Woodson v. Quinn, No. 85-3059. The Woodson decree also established a jail population control committee. An examination of reports filed by the committee discloses that it was concerned only with issues regarding the population of inmates and detainees who had been certified as adults. As a result of the Woodson decree, policies, procedures and practices governing the rights and privileges of adult inmates were revised. Further, living conditions were improved for the adult population. Ford, Jordan, Sanders, and Shelby now ask this court to address issues concerning their rights, privileges and conditions of confinement as juvenile detainees. Some of plaintiffs’ grievances were not raised by the adult inmates. The juvenile detainees assert a number of issues, however, that were previously raised by the Woodson plaintiffs because the juvenile detainees contend that they “are subject to unequal treatment in that they are deprived of the same or similar treatment programs and facilities which are provided [to] the adult detainees and adult inmates.” In light of the alleged unequal treatment of juveniles, the controlling facts in this case appear to differ significantly from those presented to Judge Saffels in 1987. We are of the opinion that the juvenile detainees did not have an opportunity to raise issues in the Wood-son case that they now seek to litigate. The court will therefore deny defendants’ motion as to the application of collateral estoppel. VI. MOOTNESS DOCTRINE Defendants contend that plaintiffs lack standing to pursue individual declaratory and injunctive relief because their claims are moot. The doctrine of mootness has its constitutional origin in the “case or controversy” limitation of article III, section 2, which ensures that courts exercise their power only in cases where true adversary presentation allows informed judicial decision. Thournir v. Buchanan, 710 F.2d 1461, 1462-63 (10th Cir.1983); Wiley v. Nat’l Collegiate Athletic Ass’n, 612 F.2d 473, 475 (10th Cir.1979) (en banc), cert. denied, 446 U.S. 943, 100 S.Ct. 2168, 64 L.Ed.2d 798 (1980). An actual controversy must be extant at all stages of a case. Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216 n. 10, 39 L.Ed.2d 505 (1974); Fed. Deposit Ins. Corp. v. Jennings, 816 F.2d 1488, 1490 (10th Cir.1987). Federal courts are without authority to decide questions that cannot affect the rights of litigants in the case before them. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971); Johansen v. City of Bartlesville, Okla., 862 F.2d 1423, 1426 (10th Cir.1988); Johnson v. Riveland, 855 F.2d 1477, 1480 (10th Cir. 1988). The Supreme Court, however, has fashioned an exception to the mootness doctrine when a plaintiffs claim is “capable of repetition, yet evading review,” and there is a possibility that the claim “may arise again with respect to that plaintiff.” Lewis v. Continental Bank Corp., 494 U.S. 472, —, 110 S.Ct. 1249, 1255, 108 L.Ed.2d 400 (1990); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980). In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Court suggested in dicta that a ease brought by pretrial detainees might fit within this exception, writing that it was “most unlikely that any given individual could have his constitutional claim decided ... before he is either released or convicted” and that “the individual could ... suffer repeated deprivations.” Id. at 110 n. 11, 95 S.Ct. at 861 n. 11. See also Schall v. Martin, 467 U.S. 253, 256 n. 3, 104 S.Ct. 2403, 2405 n. 3, 81 L.Ed.2d 207 (1984); Williams v. Ward, 845 F.2d 374, 380 n. 6 (2d Cir.1988), cert. denied, 488 U.S. 1020, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989); Lucas v. Wasser, 73 F.R.D. 361, 363 (S.D.N.Y.1976). When a plaintiff seeking injunctive relief has allegedly been subjected to confinement which is transitory by nature, courts have refused to apply the mootness doctrine where the following conditions exist: (1) subsequent confinement demonstrating “the likelihood that [plaintiff] is vulnerable to future confinement” and (2) “[t]he actual time of confinement is too short to permit judicial review to conclude before discharge.” See, e.g., Tyars v. Finner, 709 F.2d 1274, 1280 (9th Cir.1983); Doe v. Gallinot, 657 F.2d 1017, 1021 n. 6 (9th Cir. 1981) ; see also Smith v. Montgomery County, Md., 547 F.Supp. 592, 595 (D.Md. 1982) (claim for injunctive relief is “capable of repetition, yet evading review” where “it is impossible for [county detention center] policy to be applied continuously to any individual temporary detainee, who is by definition only in the [detention center] for a very short period of time”). In the present case, there is a definite likelihood that plaintiffs will again be subjected to confinement at either of Wyandotte County’s detention facilities. Jordan’s deposition testimony indicates that he has been detained by the county on at least two separate occasions. Further, a Wyandotte County District Court order of release reveals that Sanders was confined in the county jail juvenile annex during August of 1991. An order of release in Ford’s case indicates he was in the county’s custody in November of 1990. Release orders also show that Sanders and Ford were both imprisoned at the annex during November and December of 1989. Given plaintiffs’ numerous visits to the county jail and detention center over the course of the past two years, they obviously were not detained for long periods of time. In light of plaintiffs’ short-lived status as detainees and the prior and subsequent confinements of plaintiffs Ford, Jordan, and Sanders, the court is convinced that plaintiffs’ claims for individual declaratory and injunctive relief are capable of repetition, yet evading review, and there is a possibility that these claims may arise again with respect to plaintiffs. “[I]t is not ‘absolutely clear,’ absent [injunctive relief], ‘that the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Vitek v. Jones, 445 U.S. 480, 487, 100 S.Ct. 1254, 1260, 63 L.Ed.2d 552 (1980) (quoting United States v. Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968)). We will therefore deny defendants’ motion as to the doctrine of mootness. IT IS THEREFORE ORDERED that defendants’ motion to dismiss (Doc. No. 28) is hereby denied. . Plaintiffs' amended complaints allege not only constitutional violations regarding physical deficiencies of the jail itself, but also a failure on the part of the defendant board and Sheriff Sully to provide the most basic services, including reasonable medical and mental health care, appropriate food, sufficient personal hygiene materials, adequate supervision and grievance procedures, educational programs, and recreational activities. . While the old jail apparently is not being used by Wyandotte County at this time, Sheriff Sully and County Commission Chairwoman Nies stated in a recent newspaper article that the county is considering whether to renovate and reopen the old jail in order to relieve overcrowding at its new facility. See Kansas City Star, Metropolitan Section, July 25, 1991, at 1. . Ford was detained in the old county jail for a period commencing on September 8, 1990, and ending on October 9, 1990. Sanders was likewise confined in the "outdated facility" until October 9, 1990. His first day of confinement was August 19, 1990. Jordan was imprisoned from August 27, 1990 to September 4, 1990. Shelby was incarcerated in the old jail from August 27, 1990 to September 26, 1990. . The defendant board of county commissioners filed a lawsuit, now pending, against the contractor who designed the new juvenile facility, alleging that there are "various material conditions, fixtures and other appurtenant structures in and to such county correction facility which create material safety and security risks to the general public, county employees and correction facility inmates, and which further materially compromise the ... ability [of the county] to operate such correction facility in an economically efficient manner.” See Petition filed in Bd. of County Commrs. of the County of Wyandotte v. Schlup, Becker, Brennen, P.A., No. 91C0009 at 6, ¶ 15. . Plaintiffs filed their original complaint at 11:10 A.M. on October 9, 1990. Defendants contend that none of the plaintiffs were detained at the old county jail when the complaint was filed. Ford and Sanders state in affidavits, however, that they were not placed in jail cells at the new juvenile annex until 11:30 A.M. that day. . The deposition testimony of Jordan reveals that he has been in the county’s custody on at least two occasions.
9044012-13149	WELLFORD, Circuit Judge. Plaintiff, Kenneth Kramer, appeals from the district court’s grant of defendants’ motions for summary judgment to dismiss in this action brought pursuant to the Racketeer Influenced and Corrupt Organization Act (“RICO”), §§ 1961-1968. The basic issues presented in this case are whether plaintiff lacks standing to assert a claim under RICO and whether plaintiff suffered injuries which are compensable under RICO. Because we find plaintiff lacks standing to sue under RICO, we affirm. FACTUAL BACKGROUND Bachan Aerospace Corporation (“BAC”) engaged in the manufacture of machine parts for the aerospace industry and others for over twenty years. Prior to its dissolution in 1988, BAC maintained its own work force, manufacturing facilities and contracts. BAC had a collective bargaining agreement with the United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”) covering its employees. At all times relevant to this lawsuit, Douglas Bachan served as BAC’s president and chief operating officer and Michael Bachan served as quality control manager. In 1985, BAC began experiencing financial problems, but BAC’s principal lender, Manufacturers National Bank (“the Bank”), believed that with the infusion of new capital, BAC could be a profitable business. The Bank recommended to several individuals with whom it also conducted business that they might acquire BAC. These individuals incorporated RMM No. 2, Inc. (“RMM”), and on December 31, 1985, RMM purchased all of the stock of BAC. BAC continued to suffer losses and in April 1988, BAC conveyed all of its assets to the Bank, its principal secured creditor. Kramer worked for BAC for a short period in 1980, for a few months in 1982, and from June 30, 1985 until his discharge on December 19, 1986. While employed at BAC, plaintiff was a member of UAW Local 417 and was subject to a collective bargaining agreement. On October 8, 1986, BAC disciplined and laid off plaintiff allegedly because of his inability to perform his inspection work satisfactorily. Following the filing of his November 24, 1986 grievance concerning this discharge, plaintiff was reinstated to a lower-category inspection position on a ninety-day probationary status. When recalled, Kramer agreed with BAC that his work performance would be reviewed by BAC officials. On December 19, 1986, BAC terminated plaintiff, and thereafter he filed another grievance pursuant to the collective bargaining agreement. Prior to his dismissal, however, plaintiff contacted the United States Defense Department to inform them that BAC was knowingly manufacturing and shipping defective parts. An arbitrator conducted a hearing on the grievance in July 1987 and, on November 28, 1987, issued an opinion and award finding that BAC did not have just cause to discharge Kramer and awarding plaintiff lost wages for the seven-month period in which he searched for a new job. The arbitrator, however, refused to order reinstatement because the “employer-employee relationship ha[d] been destroyed.” On December 16, 1987, BAC was served with a grand jury subpoena for documents relating to its manufacture of gear shafts for the United States government. BAC produced the subpoenaed documents and fully cooperated with the grand jury investigation. Following receipt of the subpoena, BAC conducted an internal investigation with respect to manufacturing and testing of the gear shafts. As a result of that investigation, BAC discharged Douglas Bachan, Michael Bachan, Joseph Noac, the chief quality control inspector, and John O’Leary, a quality control inspector. On May 3, 1988, plaintiff filed an initial complaint against BAC, Douglas Bachan and Michael Bachan asserting: (1) a civil right of action under RICO; (2) violations of Michigan state law; (3) violation of Michigan’s Whistleblowers’ Protection Act; and (4) defendant BAC’s failure to comply with the arbitrator’s award. On September 30, 1988, plaintiff filed an amended complaint adding RMM and Talon as defendants. Because both the complaint and the amended complaint contained vague and ambiguous allegations, the district court directed plaintiff on October 28, 1988, to file a RICO “Case Statement” within twenty days. Plaintiff initially failed to comply, but later filed the required statement on February 2, 1989, after a delay of three months. On February 7, 1989, the district court dismissed plaintiff’s claims for damages under Michigan law and for enforcement of the arbitrator’s award. After reviewing the plaintiff’s RICO “Case Statement”, defendants BAC, RMM, and Talon filed a motion to dismiss for failure to state a claim upon which relief can be granted and a motion for summary judgment. Defendants Michael and Douglas Bachan followed these filings with a motion to dismiss on similar grounds. The district court held a hearing on defendants’ motions after which it granted defendants’ motions for summary judgment and dismissed plaintiff’s complaint. Judge Cohn ruled that the defendants had established: (1) that plaintiff lacked standing under RICO; (2) that plaintiff failed to plead fraud with specificity; (3) that plaintiff had not alleged an adequate pattern of racketeering activity; (4) that the corporate defendants could not be vicariously liable under RICO; (5) that plaintiff had not alleged sufficient involvement for Talon; and (6) that plaintiff could not collect damages for physical and mental injuries under RICO. Plaintiff appeals from this order granting defendants’ motions for summary judgment and dismissing the case. STANDARD OF REVIEW All defendants’ motions in this ease may be treated as motions for summary judgment. A grant of summary judgment should be sustained if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Canderm Pharmacol, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988). The moving party satisfies this burden by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party satisfies its burden, the party opposing the motion “must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986) (the court should determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”). Taking the record as a whole and viewing the facts in a light most favorable to the party opposing the motion, summary judgment is appropriate where the party opposing the motion “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. STANDING TO ASSERT A CLAIM UNDER RICO Plaintiff argues that he is a discharged whistle blower who has standing to sue under RICO. The district court, however, found that plaintiff could not sue under RICO to recover for the loss of his job because his discharge was an incidental consequence of defendant BAC’s RICO violations. This decision is supported by other courts that have considered the question. As part of RICO’s extensive civil enforcement scheme, Congress included 18 U.S.C. § 1964(c) which allows for private suits for treble damages and attorneys’ fees to “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter....” 18 U.S.C. § 1964(c) (emphasis added). In Sedima v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), the Supreme Court explained the requirements for standing under § 1964(c): If the defendant engages in a pattern of racketeering activity in a manner forbidden by [§ 1962], and the racketeering activities injure the plaintiff in his business or property, the plaintiff has a claim under § 1964(c).... ... [T]he plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation_ “A defendant who violates section 1962 is not liable for treble damages to everyone he might have injured by other conduct, nor is the defendant liable to those who have not been injured.” Id. at 495-97, 105 S.Ct. at 3284-85 (citation omitted) (emphasis added). The Court concluded that “the compensable injury necessarily is the harm caused by predicate acts sufficiently related to constitute a pattern ... Any recoverable damages occurring by reason of a violation of § 1962(c) will flow from the commission of the predicate acts.” Id. at 497, 105 S.Ct. at 3285 (emphasis added) (footnote omitted). It follows, therefore, if a plaintiff fails to demonstrate that a causal nexus exists between his injury and the predicate acts (the criminal RICO violations), he has no standing to sue under § 1964(c). See Cullom v. Hibernia Nat. Bank, 859 F.2d 1211, 1215 n. 9 (5th Cir.1988); see also Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 24-25 (2d Cir.1990) (holding that standing may be founded only upon injury from overt acts that are also predicate acts under § 1961, and not upon all overt acts in furtherance of a RICO conspiracy); Burdick v. American Express Co., 865 F.2d 527, 529 (2d Cir.1989) (holding that in order to establish standing, plaintiff must show that damage to his business or property resulted from predicate acts constituting the RICO violation); Pujol v. Shearson/American Express, Inc., 829 F.2d 1201, 1205 (1st Cir.1987) (two requirements for standing under § 1964(c): (1) a violation of § 1962; and (2) violation caused injury); Nodine v. Textron, Inc., 819 F.2d 347, 349 (1st Cir.1987) (“The Rico Act provides no cause of action to individuals injured by acts other than criminal RICO violations.”); Morast v. Lance, 807 F.2d 926, 933 (11th Cir.1987) (holding that injury must flow directly from predicate acts); Warren v. Manufacturers Nat. Bank of Detroit, 759 F.2d 542, 545 (6th Cir.1985) (holding that injury must be directly caused by the asserted RICO violations). In Warren, we considered the right of a plaintiff to bring suit under RICO for loss of employment where the corporation for which he was chairman of the board was forced into bankruptcy by the fraudulent acts of the defendant bank. 759 F.2d at 544-45. Holding that the plaintiff lacked standing under RICO, we stressed that the alleged acts of fraud were not directed toward the plaintiff as an employee, but rather toward the corporate entity. We concluded that “though plaintiffs loss of employment might be characterized in one sense to be a consequence of defendant’s conduct, it hardly can be said to have been directly ‘caused’ by the asserted conduct.” Id. at 545. We require that plaintiff in a case of this type demonstrate that his discharge was not merely incidental to, but directly caused by a defendant’s alleged RICO violations. Accord Grantham and Mann, Inc. v. American Safety Prods., Inc., 831 F.2d 596, 606 (6th Cir.1987); Bender v. Southland Corp., 749 F.2d 1205, 1216 (6th Cir.1984). Plaintiff, despite this overwhelming authority, asks that we establish a special exception for whistleblowers, arguing that BAC could not have continued its scheme to defraud the government if any of the employees had informed government officials of the racketeering activity. While it has some undoubted appeal, plaintiff’s argument has been rejected by virtually every court which has addressed this issue. See Hecht, 897 F.2d at 24-25 (former sales representative of Commerce Clearing House denied standing to sue where he was terminated for refusing to cooperate in concealment of fraudulent subscription scheme); Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 637 (2d Cir.1989) (former quality assurance auditors at nuclear plant denied standing under RICO where they were harassed in retaliation for the diligent conduct of inspection duties); Burdick, 865 F.2d at 529-30 (former vice-president of American Express denied standing to sue where he was fired in retaliation for his complaints about parent Shearson’s alleged illegal activities); Cullom, 859 F.2d at 1218 (former president and CEO of bank denied standing where he was forced to resign for refusing to participate in fraudulent scheme); Pujol, 829 F.2d at 1206 (former president of Shearson Puerto Rico denied standing where he was fired and slandered for reporting and stopping the illegal schemes); Nodine, 819 F.2d at 349 (former employee of Textron denied standing to sue where he was fired for reporting illegal customs scheme to his superiors); Morast, 807 F.2d at 933 (former bank employee denied standing where he was fired for reporting illegal bank transactions).
7416065-22016	KEARSE, Circuit Judge: Plaintiffs-appellants Mary Ann Maywalt et al, who are four of the five plaintiff class representatives in this securities class action, appeal from a final judgment of the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, approving the settlement of the litigation. Appellants principally challenge interlocutory orders of the district court (1).denying their request for the appointment of new class counsel, and (2) refusing to order an additional notice to the class stating that appellants opposed the proposed settlement. For the reasons below, we reject their challenges and affirm the judgment. I. BACKGROUND Plaintiffs were limited partners in a number of oil and gas limited partnerships in which Damson Oil Corporation (“DOC”) was the general partner (the “Damson Limited Partnerships” or “DLP”). In June 1990, DOC entered into an agreement to merge the Damson Limited Partnerships with Parker & Parsley Development Partners, L.P. (the “Parker & Parsley Partnerships”), to create defendant Parker & Parsley Petroleum Company (“P & P Petroleum”) (the “merger transaction”). Under this agreement, each DLP limited partner was to receive P & P Petroleum stock and a cash distribution. The merger agreement was subject to the approval of the DLP limited partners. To secure proxies, a prospectus/proxy statement dated December 31, 1990 (the “original prospectus”), was sent to the DLP limited partners for a special meeting. Two supplemental prospectuses were sent thereafter. The meeting was held on February 19, 1991, and the agreement was approved. In June 1991, DOC filed a petition in bankruptcy. In February 1992, appellants and a fifth named plaintiff commenced the present action (the “Maywalt action”) against, inter alios, P & P Petroleum, several of its officers and directors, and several officers and directors of DOC. Suing on behalf of themselves and other investors who held interests in one or more of the Damson Limited Partnerships around the time for consideration of the merger proposal, the Maywalt plaintiffs asserted claims for fraud under federal securities laws and for various violations of then-rights under state law. They alleged that the original prospectus misrepresented the asset values of the partnerships, that the supplemental prospectuses were not mailed sufficiently in advance of the February 19 meeting to allow the limited partners to act on the additional information, and that the DLP limited partners received inadequate consideration for the DLP assets contributed to P & P Petroleum. In a March 1993 opinion reported at 147 F.R.D. 51, the district court, pursuant to Fed.R.Civ.P. 23, certified a class consisting of all persons who were limited partners in the Damson Limited Partnerships as of December 26, 1990. The court found, inter alia, that the claims asserted by the class representatives were typical, that the class representatives had shown an absence of conflicting interests between themselves and other class members, and that the several firms retained as class counsel were qualified, experienced, and capable. The court subsequently approved the form of notice, which was sent to class members, informing them that the action was pending and that they would have 30 days after the date of the notice in which to opt out of the class. In the meantime, before the merger was approved at the February 19, 1991 special meeting of the DLP limited partners, an action had been commenced against certain of these defendants and others in New York state court on or about February 11, 1991, by DLP limited partner Dorothy Lindenauer (the “Lindenauer action”). The Lindenauer action was, inter alia, a class action on behalf of a class identical to the class in the May-walt action and asserted breach of fiduciary duty in connection with the merger transaction. After the Maywalt action was filed in February 1992, the Lindenauer action was voluntarily stayed, and counsel for the plaintiff class in Lindenauer joined the firms representing the plaintiff class in Maywalt. For some two years thereafter, the parties conducted vigorous discovery in Maywalt and engaged in extensive settlement negotiations concerning both the Maywalt and the Lindenauer actions. In early 1993, the district court designated Magistrate Judge Leonard Bemikow to oversee and facilitate the negotiations. After numerous settlement meetings before Magistrate Judge Bernikow, counsel for all parties and for defendants’ insurer eventually executed a Stipulation of Settlement dated April 12, 1994. Under the terms of the proposed settlement, defendants were to pay, directly or through their insurer, $8.25 million plus the cost of notifying the class of the proposed settlement and the cost of administering the settlement. The class members were to release “any of the claims for relief or causes of action which were or could have been asserted” in either the Maywalt action or the Lindenauer action “arising out of or in any way connected with or related to” the merger transaction. ■ The stipulation and a proposed notice to'be sent to the class members were submitted to the district court. The proposed notice indicated that, subject to the court’s approval, each class representative, in addition to sharing in the settlement proceeds in proportion to his or her investment, would receive $5,000 for serving in that capacity. On May 4, 1994, the court preliminarily approved the proposed settlement and approved the notice to be mailed to the class. The court ordered that objections be filed no later than June 7; it scheduled a hearing for June 22. Appellants decided to oppose the proposed settlement, and they sought to replace class counsel. By letters dated June 2, 1994, they so informed each of the firms serving as class counsel, stating that the firm was discharged and that appellants had retained William C. House, Esq., as new class counsel. On June 7, appellants moved in the district court to substitute House, stating that class counsel had failed to consult with appellants adequately about the proposed settlement. They also requested that an additional notice be sent to inform the other class members of appellants’ actions. Class counsel and the defendants opposed the motion, characterizing it as an attempt to scuttle the settlement. Class counsel submitted, inter alia, the affidavit of Michael A. LaBazzo, a partner in one of the class-counsel firms, setting forth in detail the numerous conversations he had had with the class representatives, especially those since January 1994 attempting to explain the proposed settlement to them. LaBazzo stated that, except for Maywalt’s response that she thought she should be paid $10,000 instead of $5,000 as a class representative, he had received no indication at any time prior to his receipt of appellants’ June 2 letter, purporting to discharge class counsel, that any class representative objected to the substance of the proposed settlement. Maywalt replied with an affidavit stating, inter alia, that the class representatives were concerned that the amounts to be paid to individual investors were small and that the attorneys’ fees would be large. Maywalt stated that when she told LaBazzo she would prefer to receive the higher compensation for having served as a class representative, she was only joking. In a memorandum opinion reported at 155 F.R.D. 494 (1994), the district court denied appellants’ application to replace class counsel. Characterizing the duties of class representatives following class certification as “amorphous,” 155 F.R.D. at 496 n. 5, the court stated that the role of class counsel is generally greater than that of the class representatives in protecting the interests of absent class members, and that class counsel have a duty to protect the interests of the majority of the class even if the named plaintiffs hold a different view: Absent a finding of conflict of interest, ... no additional legal obligation — including a fiduciary obligation — appears to have been imposed upon class representatives under Rule 28(a)(4) by the Courts. By way of contrast, the legal obligations of Class Counsel, once certified as such, appear to extend much further than those imposed upon Class Representatives. Class counsel’s duty to the class as a whole frequently diverges from the opinion of either the named plaintiff or other objectors. ... [T]he compelling obligation of class counsel in class action litigation is to the group which makes up the class.... To that end, Class Counsel must act in a way which best represents the interests of the entire class and is not dependent on the special desires of the named plaintiffs. 155 F.R.D. at 496 (internal quotation marks omitted). With regard to the present case, the court noted that it had already certified the class representatives and class counsel pursuant to Rule 23(a)(4) after finding that appellants had no interests conflicting with those of the class and that counsel were qualified, experienced, and capable. The court stated that there was no indication that class counsel had failed to carry out their responsibilities, and it concluded that appellants’ attempt to discharge class counsel was belated and largely baseless: In this case, no allegation of impropriety on behalf of Class Counsel has been made by the Moving Representative Plaintiffs. Further, no evidence has been proffered indicating that Class Counsel has in some[]way undermined the rights of the larger class and such concerns .will be properly heard by this court at the duly noticed time of the Settlement Hearing. In fact, the heart of this application stems from the perceived inadequacy of communication between Class Counsel and the Moving Representative Plaintiffs, an event which is perhaps unbecoming, but based on the submissions here, does not constitute a level of impropriety necessitating the drastic remedy of a Court ordered discharge of Class Counsel. In the absence of concretely alleged acts of impropriety by the duly certified Class Counsel, or a showing [of] abridgment of a significant minority of the Class’ rights, this Court will not grant the hasty application of the Moving Repre sentative Plaintiffs to replace Class Counsel on the eve of the Settlement Hearing. Id. at 497. Noting that any objections to the merits of the proposed settlement could be addressed at the scheduled hearing, the court encouraged appellants to retain House to represent them individually in order to present their objections. The court stated that “[t]he fact that four of the five Representative Plaintiffs object to the Proposed Settlement will weigh heavily in the Court’s evaluation as to the fairness, adequacy and reasonableness of the Proposed Settlement,” though the mere fact of their objecting would not be dispositive. Id. The court also denied the request that an additional notice be sent to absent class members notifying them of appellants’ opposition to the proposed settlement. The hearing on the proposed settlement was commenced as scheduled on June 22. The court agreed to give appellants additional time to permit House to obtain the discovery materials previously collected by class counsel and to submit appellants’ objections in writing, to be followed by additional oral argument on July 18. Appellants were represented by House at both hearings and objected to the settlement’s valuation of certain of the Damson Limited Partnerships’ assets and the Parker & Parsley Partnerships’ assets. They also contended that there were potential claims against defendant Barrie M. Damson, the chief executive officer of both DOC and the Damson Limited Partnerships, arising out of the renegotiation in 1989 of reserve insurance policies owned by certain of the Damson Limited Partnerships (the “reserve-insurance claim”). Appellants argued that there was a risk that the reserve-insurance claim would be released by the settlement, that the value of that claim had not yet been ascertained, and that the court therefore could not yet determine whether the settlement was fair and should be approved. In an opinion dated October 3, 1994, and reported at 864 F.Supp. 1422, the district court rejected all of appellants’ objections. As to appellants’ concern for the release of the reserve-insurance claim, the court found both that the reissuance of the insurance policies had “little or no factual connection or logical relevance to the issues pleaded” in either of the two class action complaints, 864 F.Supp. at 1432, and that the release in the proposed settlement agreement referred only to potential claims “arising out of or in any way connected to the [merger transaction],” id. at n. 7. The court concluded that the reserve-insurance claim was irrelevant to the fairness of the settlement. Overruling all objections, the court approved the proposed settlement, finding it to be fair, adequate, and reasonable. Final judgment was entered, and this appeal followed. II. DISCUSSION On appeal, appellants contend principally (1) that, as class representatives, they had the right to discharge class counsel in order to protect the interests of the class, and (2) that the notice of the proposed settlement was inadequate because it did not inform the class that the class representatives were opposed. They also contend that the district court abused its discretion in approving the settlement because it failed to consider the value of the reserve-insurance claim. We find all of appellants’ contentions to be without merit. A. The Attempt To Discharge Class Counsel Inherent in any class action is the potential for conflicting interests among the class representatives, class counsel, and absent class members. “The interest of lawyer and class may diverge, as may the interests of different members of the class.... ” Plummer v. Chemical Bank, 668 F.2d 654, 658 (2d Cir.1982) (internal quotation marks omitted). Both class representatives and class counsel have responsibilities to absent members of the class. Under Rule 23, the court cannot properly certify the action to proceed as a class action unless it is satisfied that the representative plaintiffs “will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). Thus, class certification may properly be denied “where the class representatives ha[ve] so little knowledge of and involvement in the class action that they would be unable or unwilling to protect the interests of the class against the possibly competing interests of the attorneys.” Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 727 (11th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 1221, 99 L.Ed.2d 421 (1988). Once the action has been certified to proceed as a class action, it is incumbent on the class representatives to be alert for, and to report to the court, any conflict of interest on the part of class counsel, as for example, counsel’s greater concern for receiving a fee than for pursuing the class claims. See generally 7A C. Wright, A. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1769.1, at 386-87 (1986) (“Wright Miller & Kane”). The fact that the named plaintiffs in a certified class action have been found to be adequate representatives of the class does not, however, mean that they have the right to replace class counsel at will. The identity of class counsel will have been one of the components of the district court’s preeertifi-eation consideration under Fed.R.Civ.P. 23(a)(4) as to whether the named plaintiffs are adequate representatives of the class. See, e.g., Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968) (attorney must be “qualified, experienced and generally able to conduct the proposed litigation”); see generally Wright Miller & Kane § 1769.1, at 375. The attorneys themselves have an obligation to all of the class members, and “when a potential conflict arises between the named plaintiffs and the rest of the class, the class attorney must not allow decisions on behalf of the class to rest exclusively with the named plaintiffs.” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1176 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979); cf. Saylor v. Lindsley, 456 F.2d 896, 899-900 (2d Cir.1972) (“assent of the plaintiff (or plaintiffs) who brought a derivative stockholder’s action is not essential to a settlement; a contrary view would put too much power in a wishful thinker or a spite monger to thwart a result that is in the best interests of the corporation and its stockholders”). The ultimate responsibility to ensure that the interests of class members are not subordinated to the interests of either the class representatives or class counsel rests with the district court. See, e.g., In re “Agent Orange” Product Liability Litigation, 996 F.2d 1425, 1438 (2d Cir.1993) (“A judge in a class action is obligated to protect the interests of absent class members.”), cert. denied, — U.S. -, 114 S.Ct. 1125, 127 L.Ed.2d 434 (1994); Grant v. Bethlehem Steel Corp., 823 F.2d 20, 22 (2d Cir.1987) (“In approving a proposed class action settlement, the district court has a fiduciary responsibility to ensure that ‘the settlement is fair and not a product of collusion, and that the class members’ interests were represented adequately.’ ”); Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d 956, 964 (3d Cir.1983) (“The court [i]s required to ... consider whether class counsel provided fair and adequate representation to the class as a whole.”). Thus, where there is a dispute between class counsel and the class representatives as to the course to be followed, the decision “cannot rest entirely with either the named plaintiffs or with class counsel.” Pettway v. American Cast Iron Pipe Co., 576 F.2d at 1177. The choice between the views of counsel and those of the representatives must rest with the district court. See, e.g., id. at 1178 (“[w]here the named plaintiffs wish to appeal, but the class attorney concludes that an appeal is not in the best interest of the class, the district court must exercise its discretion in deciding whether to substitute class counsel to allow the named plaintiffs to maintain the appeal on behalf of the class”). Given the familiarity of the district court with the proceedings, the parties, and the performance of counsel, we will review that court’s decision only for abuse of discretion. We see no abuse of discretion here. The district court found that appellants had not alleged or proven that class counsel had engaged in any improper conduct or had in any way undermined the rights of the class at large. Appellants have pointed to nothing in the record that contradicts this observation. They sought to allege that counsel had a conflict of interest by contending that the amounts to be received by individual class members were small in comparison to the amount to be requested in legal fees. Such a disparity occurs without any conflict of interest in many class actions, and the supervision of settlement negotiations by a magistrate judge, as occurred here, makes it less likely that the disparity represents class counsel’s promotion of their own interests over those of the class. The district court, in stating that there was no indication that class counsel had failed to carry out their responsibilities to the class nor any evidence of impropriety, implicitly found that appellants’ presentation was insufficient to show a conflict of interest. The record supports the district court’s characterization of appellants’ attempt to discharge class counsel as a “hasty” move “on the eve of the Settlement Hearing,” and we see no basis for overruling its conclusion that granting appellants’ application at the eleventh hour would be a disservice to the class at large. Accordingly, we uphold the order denying appellants’ motion to discharge counsel substantially for the reasons stated in Judge Sweet’s June 22, 1994 opinion reported at 155 F.R.D. 494. B. Notice of Appellants’ Opposition Appellants’ contention that the absent class members were given inadequate notice of the proposed settlement because they were not informed that appellants objected to the settlement is also without merit. Due process requires that the notice to class members “fairly apprise the ... members of the class of the terms of the proposed settlement and of the options that are open to them in connection with [the] proceedings.” Weinberger v. Kendrick, 698 F.2d 61, 70 (2d Cir.1982) (internal quotation marks omitted), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 307, 314, 70 S.Ct. 652, 653, 657, 94 L.Ed. 865 (1950) (notice concerning judicial settlement of common trust fund); In re Drexel Burnham, Lambert Group Inc., 995 F.2d 1138, 1144 (2d Cir.1993) (notice of settlement sent pursuant to Fed.R.Bankr.P. 2002). This requirement was met here. First, there is no suggestion by appellants that the notice given here failed in any way to set out clearly the terms of the proposed settlement or to inform class members of their right to object. Further, the original notice contained no statement as to appellants’ views that was either inaccurate when that notice was sent or out-of-date by the time of the hearing, for the original notice did not state the views of the class representatives at all; it said merely that the proposed settlement was viewed as fair by “Plaintiffs’ Counsel.” Finally, though appellants assert that the fact of their opposition to the settlement was a material fact of which absent class members should have been made aware, the court was entitled to conclude on the present record, given the basis for appellants’ position, that their “hasty” opposition was not sufficiently material to warrant an additional notice and a further delay of the scheduled hearing. C. The Reserve-Insurance Claim
1283192-6566	JAMES C. HILL, Circuit Judge: A jury found that Hamp Webb willfully shot a passing helicopter. 18 U.S.C.A. § 32 (West 1969). Webb appeals his conviction, claiming evidentiary error and misconduct by the trial judge. We affirm. The helicopter pilot, one Moore, testified that he was flying past Webb’s house when he saw Webb run out to a parked car, take out a rifle and commence firing. That was the incident for which Webb was indicted. Moore continued, however, to testify that someone on Webb’s property again shot at him some days after the incident in question. Webb objected to the admission of this subsequent similar act, his first claim of error here. In United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), we held that prior similar acts were admissible as against criminal defendants, when (1) relevant to an issue other than character; and (2) not unfairly prejudicial within the meaning of Fed.R.Evid. 403. Beechum, 582 F.2d at 911. See Fed.R.Evid. 404(b). That same analysis governs subsequent similar acts. See United States v. Myers, 550 F.2d 1036, 1044 n. 10 (5th Cir. 1977). Webb apparently concedes that the alleged subsequent shooting was relevant to proving criminal intent, i. e., it rendered less plausible any suggestion that the identical first incident was a hunting accident. Cf. United States v. Dunbar, 614 F.2d 39, 42 (5th Cir. 1980). Webb’s complaint is that the shooter’s intent was undisputed, that if — contrary to his alibi — he were the shooter, further proof of intent was cumulative and unnecessary. Cf. United States v. Goodwin, 492 F.2d 1141, 1152 (5th Cir. 1974). As it turned out at trial, Webb’s sole defense was an alibi, viz., that he was planting turnips when the shooting incident occurred. We may assume, without deciding, that if Webb had offered so to stipulate in advance of trial, cf. United States v. Mohel, 604 F.2d 748, 752-53 (2d Cir. 1979); United States v. Manafzadeh, 592 F.2d 81, 87 (2d Cir. 1979), the Government’s need might have diminished to the point where admission of the subsequent incident would have been error. See Fed.R.Evid. 403. When the Government put on its case-in-chief, however, it had no assurance of what the defense would be. It was obliged to prove that Webb “willfully” damaged the helicopter. 18 U.S.C.A. § 32 (West 1969). Unlike Goodwin, supra, where the defendant’s actions admitted of no exculpatory explanation, the firing of a rifle — particularly in a rural setting — carries no inherent criminal vice. Indeed, the helicopter pilot testified that he flew back near Webb’s residence precisely to determine whether the first shooting had been deliberate, a conclusion not unreasonably suggested by the renewed fusillade. Answering the question that we have previously reserved, see United States v. Salomon, 609 F.2d 1172, 1174 n. 3 (5th Cir. 1980); United States v. McMahon, 592 F.2d 871, 876 & n. 7 (5th Cir. 1979); Beechum, 582 F.2d at 915, we now hold that where, as here, “intent is not normally inferable from the nature of the act charged,” United States v. Ring, 513 F.2d 1001, 1009 (6th Cir. 1975), and the defendant fails to give enforceable pre-trial assurances that he intends not to dispute criminal intent, the Government’s case-in-chief may include such extrinsic offense evidence as would be admissible if intent were actively contested. See United States v. Williams, 577 F.2d 188, 191 (2d Cir.), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978). Cf. United States v. Adcock, 558 F.2d 397, 402 (8th Cir.), cert. denied, 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977). As against the possibility that Webb might have claimed that the shooting was accidental, admission of the identical. subsequent incident did not work unfair prejudice. Fed.R.Evid. 403. Webb also argues that the district court erroneously excluded certain expert testimony that he lacked “propensity to ^ commit a violent act.” Brief for Appellant at 24. The district court apparently considered such testimony, “irrelevant,” reasoning that if Webb’s alibi were believed “it wouldn’t matter whether he was violent or not violent.” Tr. 187. The court further found that the proffered testimony fell within Fed.R.Crim.P. 12.2(b), and was ex-cludable because Webb had failed to notify the Government of its intended use. See Fed.R.Crim.P. 12.2(d). Although we must reject these legal conclusions as “manifestly erroneous,” Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962); Perkins v. Volkswagen of America, Inc., 596 F.2d 681, 682 (5th Cir. 1979), we nevertheless hold that Webb’s experts were properly muzzled. Fed.R.Evid. 401 provides that evidence is “relevant” if it has “any tendency to make the existence of any [material] fact . more probable or less probable than it would be [otherwise] . . . .” The excluded testimony would have purported to show, based on psychological tests, that Webb was non-violent and therefore unlikely to shoot at a helicopter. If competent, that evidence clearly would have some tendency to confirm Webb’s alibi, i. e, a peaceable man would more likely be planting turnips than shooting at passing aircraft. Nor can we agree that the proffered testimony fell within Fed.R.Crim.P. 12.2(b). That Rule requires that the Government be notified of testimony “bearing upon the issue of whether [the defendant] had the mental state required for the offense charged.” Patently, the excluded testimony was not of that sort. It was offered to prove that Webb did not commit the offense charged, not that certain conduct was unaccompanied by criminal intent. Cf. United States v. Busic, 592 F.2d 13, 20-22 (2d Cir. 1978). But while we thus disagree with the district court’s grounds for exclusion, we find ample support for its result in the so-called “opinion rule,” see generally 7 J. Wigmore, Evidence §§ 1917-29 (Chadbourne rev.ed. 1978), codified in Fed.R.Evid. 701-06. That rule prohibits the admission of opinion testimony, save where the proponent demonstrates the applicability of some exception. Webb plainly sought to invoke the exception recognized for qualified “experts,” whose opinions are admissible when their “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. Although it seems, these days, that even the most obvious of phenomena admit of “expert” analysis, the opinion rule does not bend so far.
5169297-25977	OPINION AND ORDER FROST, District Judge. The captioned case involves a patent infringement dispute between Plaintiff, Star Lock Systems, Inc. (“Star Lock”), and Defendants, TriTeq Lock & Security, LLC, Dixie-Narco, Inc., Royal Vendors, Inc., PepsiAmericas, Inc., and G & J Pepsi-Cola Bottlers, Inc. As part of this litigation, the parties have requested that the Court construe various patent language pursuant to Markman v. Westview Instruments, Incorporated, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). This claims-construction decision serves that function. I. Background Given the procedural posture of this litigation, the Court need not and shall not describe the facts in great detail here. Of import here is that Star Lock is the owner of Patent No. 5,269,161 (“the '161 patent”). The company applied for the patent on March 27, 1991 (relating back to the earlier-obtained Patent No. 5,022,243), and the patent issued on December 14, 1993. The '161 patent is titled “Latching System” and involves technology for a locking assembly. On July 9, 2003, Star Lock filed the instant suit, claiming that TriTeq has infringed on the '161 patent. Various delays ensued while the parties attempted to settle the litigation and then proceeded to a reexamination period in the U.S. Patent Office. The parties’ dispute at this juncture focuses on the following language contained within in the '161 patent: 26. Latching apparatus for releasably latching a first door element, such as a vending machine door, or the like, and a second door element, such as a vending machine frame, or the like, said apparatus comprising: a post member including, at least, a latching portion which includes at least one notched surface; a latching assembly defining a passage for accepting said latching portion of said post member therein, and including, at least, a latch means for effectuating a grip on said notched surface when said latching portion of said post member is within said passage; a releasing means for releasing said grip between said notched surface and said latch means; and a cinch cam means for exerting an axial cinching force on said post member. ('161 Patent, col. 14, lines 63-68, col. 15, lines 1-9.) 27. Apparatus of claim 26, wherein said post member is supported by one of the door elements and includes, at least, a coupling segment and a radial pin which protrudes radically from said coupling segment, wherein said latching assembly is supported by the other of the door elements, wherein said cinch cam means includes, at least, a force-receiving cam surface and a force-exerting cam surface, further including a primary cylindrical cam means for exerting a primary axial force opposite said cinching force on said cinch cam means, and wherein said cinch cam means is constructed to: through said force-receiving cam surface, receive said primary axial force from said primary cylindrical cam means and convert said axial force into a rotational force which effects rotation of said cinch cam means, and through said force-exerting cam surface, convert said rotational force into said axial cinching force and transfer said cinching force to said coupling segment of said post member through said radial pin. ('161 Patent, col. 15, lines 10-32.) 28. Apparatus of claim 26, wherein said apparatus further comprises a primary cylindrical cam means for exerting a primary axial force opposite said cinching force on said cinch cam means, wherein said post member further comprises a coupling segment and a radial pin which protrudes radially from said coupling segment, and wherein said cinch cam means comprises a force-receiving cam surface and a force-exerting cam surface, said cinch cam means constructed to: through said force-receiving cam surface, receive said primary axial force from said primary cylindrical cam means and convert said axial force into a rotational force which effects rotation of said cinch cam means, and through said force-exerting cam service, convert said rotational force into said axial cinching force and transfer said cinching force to said coupling segment of said post member through said radial pin. ('161 Patent, col. 15, lines 33-50.) The Court notes that as a result of proceedings during the stay of this case, the independent Claim 26 has been canceled. Claims 27 and 28 are based on Claim 26, however, and incorporate its language. The parties have completed briefing the claim-construction issues (Docs.# 104, 105, 108,109), and on August 4, 2006, the Court held a Markman hearing. II. Claim Construction A. Standards Involved The Federal Circuit has explained that “ ‘[i]t is a “bedrock principle” of patent law that “the claims of a patent define the invention to which the patentee is entitled the right to exclude.” ’ ” Varco, L.P. v. Pason Systems USA Corp., 436 F.3d 1368, 1372-73 (Fed.Cir.2006) (quoting Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005) (en banc) (quoting In-nova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed.Cir.2004))). Consequently, the mean ing and scope of a patent’s claims lie at the heart of any patent dispute. The purpose of a Markman hearing is to ascertain the meaning of a patent’s claims so that it is clear precisely what has been patented and, by consequence, the protections the patent therefore affords the patent holder. See Phillips, 415 F.3d at 1312. See also Markman v. Westview Instruments, Inc., 52 F.3d 967, 978 (Fed.Cir.1995) (“When a court construes the claims of the patent ... the court is defining the federal legal rights created by the patent document”), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). There is no “rigid algorithm for claim construction.” Phillips, 415 F.3d at 1324. Rather, in construing the meaning of a patent’s claims, the Court is guided by a set of principles that the Federal Circuit has described as follows: The claim terms “ ‘are generally given their ordinary and customary meaning.'” Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). “The inquiry into how a person of ordinary skill in the art understands a claim term provides an objective baseline from which to begin claim interpretation.” Id. “Importantly, the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in • the context of the entire patent, including the specification.” Id. “In examining the specification for proper context, however, this court will not at any time import limitations from the specification into the claims.” Collegenet, Inc. v. Applyyourself, Inc., 418 F.3d 1225, 1231 (Fed.Cir.2005) (citing Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1326 (Fed.Cir.2002)). Vareo, L.P., 436 F.3d 1368, 1372-73. The starting point in claim construction therefore lies with the language of the claims themselves. Purdue Pharma L.P. v. Endo Pharmaceuticals, Inc., 438 F.3d 1123, 1135-36 (Fed.Cir.2006) (citing Phillips, 415 F.3d at 1312). In considering a patent’s language, a court should apply the plain meaning rule, presumptively giving claim terms their ordinary, plain meaning. Teleflex, 299 F.3d at 1325. A court may, however, depart from a term’s plain meaning if the patentee has acted as a lexicographer or otherwise limited the scope of the invention through a clear disclaimer in the specification or prosecution history. Phillips, 415 F.3d at 1316-17. Of considerable import to claim construction, then, is the intrinsic evidence — the claim language, the specification, and the prosecution history as applicable. World Kitchen (GHC), LLC v. Zyliss Haushal Twaren AG, 151 Fed.Appx. 970, 972 (Fed.Cir.2005) (citing Interactive Gift Express, Inc. v. CompuServe, Inc., 256 F.3d 1323, 1331 (Fed.Cir. 2001)); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). When this intrinsic evidence provides an unambiguous description of the scope of the invention, reliance on extrinsic evidence is improper. Vitronics Corp., 90 F.3d at 1582. But although less significant than intrinsic evidence, extrinsic evidence is still of value to claim construction when necessary. Phillips, 415 F.3d at 1317. This latter category encompasses such things as expert and inventor testimony, as well as texts such as treatises and dictionaries. Id. (quoting Markman, 52 F.3d at 980). A court may entertain expert testimony for numerous purposes, such as to provide background on the technology at issue, to explain how an invention works, to ensure that the court’s understanding of the technical aspects of the patent is consistent with that of a person of skill in the art, or to establish that a particular term in the patent or the pri- or art has a particular meaning in the pertinent field. Phillips, 415 F.3d at 1318. The value of expert testimony in regard to claim construction is qualified, however, as an expert cannot offer an opinion of any value that is at odds with the intrinsic evidence of a patent. Id. (quoting Key Pharms. v. Hercon Labs. Corp., 161 F.3d 709, 716 (Fed.Cir.1998)); Playtex Prods., Inc. v. Procter & Gamble Co., 400 F.3d 901, 908 n. 1 (Fed.Cir.2005). Some patent language, such as much of the language involved in the instant case, constitute “means-plus-function” claim elements. Use of this format arises from the statutory explanation that An element in a claim for a combination may be expressed as a means or step for performing a specific function without the recital of structure material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. 35 U.S.C. § 112, ¶ 6. When a claim uses the word “means” in connection with a function, a rebuttable presumption arises that treatment under the statute is warranted unless the claim “ ‘recites sufficient structure, material, or acts to perform the claimed function.’ ” Callicrate v. Wadsworth Mfg., Inc., 427 F.3d 1361, 1368 (Fed. Cir.2005) (quoting Micro Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1257 (Fed.Cir.1999)). The Federal Circuit has explained that when the statute applies, Claim construction of a means-plus-function limitation includes two steps. First, the court must determine the claimed function. JVW Enters, v. Interact Accessories, Inc., 424 F.3d 1324, 1330 (Fed. Cir.2005). Second, the court must identify the corresponding structure in the written description of the patent that performs that function. Id. Applied Medical Resources Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1332 (Fed. Cir.2006). Importantly, a court cannot construe a means-plus-function limitation by adopting a function that differs from the function explicitly recited in the claim. JVW Enterprises, Inc., 424 F.3d at 1331. Nor can a court import the functions of a working device into the specific claims, rather than reading the claims for their meaning independent of any working embodiment. Id. Cognizant of these governing principles and having entertained argument, as well as having reviewed the scope of the prior art, the Court shall now address each claim-construction issue in turn. B. Analysis Claims 27 and 28 of the '161 patent incorporate language set forth in Claim 26. The Court shall therefore begin with Claim 26. TriTeq’s contention that the preamble requires that the meaning, function, and structural equivalents of the means-plus-function clauses relate to vending machine applications is correct only if the company means to avoid an overly restrictive reading confining the apparatus to vending machines. The preamble uses “a vending machine door, or the like” and “a vending machine frame, or the like,” thereby providing illustrative but hardly exhaustive or even overtly restrictive language. The proper emphasis is to be placed on “first door element” and “second door element,” with vending machines satisfying such elements. Other mechanisms satisfying the two-door-element requirement in a way similar to vending machines would fall within the scope of the apparatus claimed. Turning to the initial post member language to be construed, the Court agrees that the term “post” is used in its traditional sense. The meaning of “latching portion” is also fairly apparent; it is simply the portion of the post that when engaged latches. As TriTeq posits, however, the meaning of “notched surface” is potentially more problematic. Triteq is correct that the embodiment of the post notched surface displays a plurality of notches or teeth. But Star Lock is also correct in asserting that nothing in the claim language itself mandates such a plurality. Thus, the Court construes the claim to require at least one notch to create a notched surface, with additional notches (or teeth) falling within the scope of “notched surface.” To conclude otherwise, reading the claim language as requiring a series of notches or teeth, would be to impute to the claim language a limitation from the specification. The targeted language thus means “a post or shaft member of a latching device that features at least one notched surface consisting of one or more axial notches or teeth, with the latching portion interacting with the latch assembly.” This construction — permitting but absolutely not requiring multiple notches — also implicitly informs the latching assembly claim language. The Court construes this language to mean “an open space or area of at least sufficient dimension to accept the notched surface of the post member.” The subsequent element “latch means for effecting a grip on said notched surface” is expressed in means-plus-function terminology, with the broad function being “effecting a grip on said notched surface” of the inserted post. Because the parties disagree over what “effecting a grip” means, they consequently also disagree over the language to use and the related requisite structure. “Effecting a grip” necessarily mandates that the post member be within the passageway at the time of the gripping (otherwise there is nothing to grip). Star Lock’s reading of the language is expansive; the company argues that the pertinent language means “providing structure situated within a notch in the latching portion of the post member to prevent removal of the post member.” Triteq’s reading is more specific and thus more restrictive; the defense contends that the term grip refers to biasing moveable latch elements toward the axial center of a latch post or passage so that the latch elements are biased into contact with the latching portion of the post during latching, and with the smooth surfaces during releasing. Because the function targets gripping, not releasing (even if such a contrary function is logically intertwined), the Court reads the claim language to state only what it must state. In other words, the relevant function is “effecting a grip on the notched surface of the inserted post by filling the notch or notches with moveable latch element(s) so as to prevent withdrawal of the post.” The parties of course disagree over the requisite structure. TriTeq includes O-rings in its proposal, while Star Lock argues that the O-rings are simply part of the preferred embodiment that cannot be imputed as a limitation to the claim. As Star Lock notes, the claims at issue here do not require moveable latch elements and a biasing means such as Claims 1, 12, and 29; claim differentiation teaches that the claims involved here thus do not require O-rings. The requisite structure that performs the identified function is latch elements 27 and 28. TriTeq’s previously mentioned concern with the smooth surface of the post member does correctly figure into the claim language “a releasing means for releasing said notched surface and said latch means.” The parties correctly agree that this is another means-plus-function clause that expressly states the function. After initially proposing a different reading, Star Lock now asserts in this litigation that “releasing said grip” means “rotating the post 90 degrees.” This would indeed appear to be a logical construction given the specification. But the possibility of notches or teeth cut to require less than a 90 degree rotation exists, albeit unlikely. Thus, TriTeq’s proposal of the function being “releasing said grip between said notched surface and said latch means” is more appropriate, if general. The function here is “removing the gripping obstruction from the post notch or notches so as to permit withdrawal of the post.” The structure for carrying out this function is coupling shaft 61 or cinch cam 93 acting on the radial guide pin 113. The next claim language to be construed raises the issue of asserted indefiniteness. In addition to alternatively proposing some limited definitions, Triteq first argues that the language “axial cinching force” is indefinite, which would render the claim invalid. The rationale behind TriTeq’s argument is that, despite the statutory presumption of validity, the language is indefinite because there the term does not appear in (and is undefined in) the specification. The Federal Circuit has explained that an indefinite claim is one that is “not amenable to construction” or is “insolubly ambiguous.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed.Cir.2005). When addressing a claim of indefiniteness, a court can look to intrinsic evidence such as the claim specification. Id. Thus, a claim is not indefinite when meaning can be readily ascertained from the specification description by a person experienced in the field. Energizer Holdings, Inc. v. International Trade Commission, 435 F.3d 1366, 1369 (Fed.Cir.2006) (citing Howmedica Osteonics Corp. v. Tranquil Prospects, Ltd., 401 F.3d 1367, 1371 (Fed.Cir.2005); Personalized Media Communications, LLC v. International Trade Commission, 161 F.3d 696, 705 (Fed.Cir.1998)). If a claim is amenable to construction, it is not insolubly ambiguous and is therefore not invalid for indefiniteness. Id. at 1370 (citing Bancorp Servs., L.L.C. v. Hartford Life Ins. Co., 359 F.3d 1367, 1371 (Fed.Cir.2004)). The key issue is whether a person of ordinary skill in the art would understand what “axial cinching force” means. Turning to the specification, the Court finds no identification or mention of the term. It is well settled, however, that a failure to provide an explicit antecedent basis for a term does not always render a claim indefinite. Id. (quoting MPEP § 2173.05(e) (8th ed. Rev.2, May, 2004)). Here, despite the lack of repeated usage of the contested term, the patent is not so flawed so as to fail to inform the public of the scope of the patent. Given the context of the term usage at issue, an individual who is skilled in the art could reasonably ascertain the term’s meaning. The term “axial cinching force” as used here means “a force on the post member that pulls the post member inward along an inward-outward axis.” The Court agrees with Star Lock’s contention that the language at issue, despite its format, is not a means-plus-function clause. As opposed to employing “cinching means” or some such language, the claim language used identifies a specific structure, the cinch cam labeled as structure member 93, that is sufficient to perform the function. When read in light of the ordinary meaning of the words employed, the language therefore means that “member cinch cam 93 exerts a force on the post member that pulls the post member inward along an inward-outward axis.” Claim 27 also presents this Court with the need to construe “coupling segment” and “radial pin.” TriTeq offers that the words in the preamble are entitled to their ordinary and customary meaning. Star Lock has offered meanings in accordance with that principle. “Coupling segment” means “a segment of the post where the post couples to another member that effects an action on the post.” “Radial pin” means “a pin extending in at least one radial direction from the coupling segment of the post member.” The next language in Claim 27 to be construed is “wherein said cinch cam means includes, at least, a force-receiving cam-surface and a force-exerting cam surface.” TriTeq again invokes its indefiniteness argument, citing the clause’s reliance on “cinch cam means,” while Star Lock proposes an interpretation of the clause. As noted, the language is not indefinite. The Court construes the language to mean that “at least one cam surface receives a force from a structural member and at least one other cam surface exerts a force on another structural member.” Claim 27 then presents another means-plus-function clause: “further including a primary cylindrical cam means for exerting a primary axial force opposite said cinching force on said cinch cam means.” TriTeq attacks “primary cylindrical cam means” and “primary axial force” as indefinite, arguing that they, together with “cinch cam means,” renders Claim 27 invalid. Star Lock proposes a function of “applying a force toward the latching portion of the post member,” which, while not precisely incorrect, is potentially misleading in that it arguably invites misreading so that the force is applied to the post member. There is no indefiniteness here. One skilled in the art, affording the words their ordinary meaning, could understand what is meant here. The Court reads the language to present the function of “exerting a first or initial force in the inward direction along the inward-outward axis.” The requisite structure is lock housing cam 98, specifically cam surfaces 123 and 125. The remainder of Claim 27 simply employs in an operational overview the vari ous elements discussed above (and is not indefinite for the aforementioned reasons). The parties should thus read this language using the meanings set forth herein. Similarly, as the parties noted at the Markman hearing, construction of Claim 27 language provides a de facto construction of Claim 28. The parties must therefore apply the foregoing definitions to Claim 28. For ease of reference the Court has set forth its constructions in the following chart. Claims 27 & 28 — Limitations from Claim 26 Patent Language Construction Latching apparatus for releasably latching a first door (There is no construction necessary for this preamble.) element, such as a vending machine door, or the like, and a second door element, such as a vending machine frame, or the like, said apparatus comprising: a post member including, at least, a latching portion which a post or shaft member of a latching device that features includes at least one notched surface; at least one notched surface consisting of one or more axial notches or teeth, with the latching portion interacting with the latch assembly a latching assembly defining a passage for accepting said an open space or area of at least sufficient dimension to latching portion of said post member therein, accept the notched surface of the post member and including, at least, a latch means for effectuating a MPF Clause grip on said notched surface when said latching portion of said post member is within said passage; Function: effecting a grip on the notched surface of the inserted post by filling the notch or notches with moveable latch element(s) so as to prevent withdrawal of the post Structure: latch elements 27 and 28 a releasing means for releasing said grip between said MPF Clause notched surface and said latch means; and Function: removing the gripping obstruction from the post notch or notches so as to permit withdrawal of the post Structure: coupling shaft 61 or cinch cam 93 acting on the radial guide pin 113. a cinch cam means for exerting an axial cinching force on member cinch cam 93 exerts a force on the post member said post member. that pulls the post member inward along an inward-outward axis Additional Language (Claim 27, informs Claim 28) Patent Language Construction Apparatus of claim 26, wherein said post member is sup- “Coupling segment” means “a segment of the post where ported by one of the door elements and includes at least, a the post couples to another member that effects an action coupling segment and a radial pin which protrudes radially on the post.” from said coupling segment, wherein said latching assembly is supported by the other of the door elements, “Radial pin” means “a pin extending in at least one radial direction from the coupling segment of the post member.” wherein said cinch cam means includes, at least, a force- at least one cam surface receives a force from a structural receiving cam surface and a force-exerting cam service, member and at least one other cam surface exerts a force on another structural member further including a primary cylindrical cam means for MPF Clause exerting a primary axial force opposite said cinching force on said cinch cam means, and Function: exerting a first or initial force in the inward direction along the inward-outward axis Stmcture: lock housing cam 98, specifically cam surfaces 123 and 125 wherein said cinch cam means is constructed to: through (This clause describes the operation of various elements said force-receiving cam surface, receive said primary axial set forth and interpreted above.) force from said primary cylindrical cam means and convert said axial force into a rotational force which effects rotation of said cinch cam means, and through said force-exerting cam surface, convert said rotational force into said axial cinching force and transfer said cinching force to said coupling segment of said post member through said radial pin. III. Conclusion The Court concludes that the foregoing claim constructions control. The parties shall therefore proceed in a manner consistent with the conclusions of this Opinion and Order. IT IS SO ORDERED. . The various defendants have given TriTeq primary responsibility for handling the patent-construction aspect of the defense.
2195466-6521	KILEY, Circuit Judge. Defendant Satterfield arid John McMillan Gregg were jointly tried before a jury and convicted of bank robbery, and each was sentenced to a term of eighteen years. Satterfield has appealed. We affirm. The Linwood Square Branch of the Merchants National Bank and Trust Company of Indianapolis, Indiana, was robbed by two armed men at about 11 a.m. July 18, 1966. Police radio broadcasts gave descriptions of the robbers and of an automobile suspected of playing a getaway part in the robbery. An Indianapolis policeman heard the descriptions and commenced checking motels in his assigned area. At about 1:23 p.m., at the Mohawk Motel, he found an automobile answering the broadcast description and radioed for help. After additional policemen arrived, and after surveillance of the room registered to the automobile user, Satterfield was arrested. Gregg was arrested a short time later in a search of another room by FBI agents. Satterfield was turned over to the FBI who took him and Gregg to headquarters. The indictment, trial and convictions followed. About a month before trial Satterfield moved, in writing, for severance on the ground that he would be prejudiced at trial with Gregg, since his attorney would not have unrestricted control of the defense; he stated that “at this time” insanity would be one of his defenses. This motion was denied. At the commencement of trial, Gregg’s attorney orally moved for severance on the ground that he “believed” there would be a plea of insanity by Satterfield and of not-guilty by Gregg. The court denied the motion, anticipating that the proof would be of defendants’ joint activity in the robbery, in the getaway, and in their virtually joint detection and arrest. Satterfield argues that his “If I did it, I was insane,” and Gregg’s “I didn’t do it” defenses were “highly antagonistic.” The prejudice claimed is that an FBI agent while testifying about an oral statement made by Satterfield changed the word “Gregg” to the term “a friend,” which created an impression in the jurors’ minds that Satterfield had tried to “coyly” cover up Gregg, and made his insanity defense incredible. We are not persuaded that the district court abused its discretion in denying the severance motion. United States v. Echeles, 352 F.2d 892, 896 (7th Cir. 1965). At the time of ruling there was no showing that Gregg’s not-guilty. defense would deprive Satterfield of a fair trial of his defense. The government’s proof would obviously connect both with the alleged robbery, and we cannot see that the court, before trial, should have anticipated that Gregg’s defense would in a “real” sense prejudice Satterfield’s defense. United States v. Kahn, 381 F.2d 824, 840 (7th Cir.) cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967), reh. denied, Sachs v. United States, 289 U.S. 1030, 88 S.Ct. 769, 19 L.Ed.2d 819 (1968). Moreover, we are not persuaded that Gregg’s “I didn’t do it” defense excluded the jury’s fair consideration of Satterfield’s “If I did it, I was insane” defense, or that the change of “Gregg” to “a friend” necessarily created the impression Satterfield asserts. The jury could have found, if it believed testimony for Gregg, that Satterfield robbed the bank with some person other than Gregg, and that although Satterfield had done so he was not guilty by reason of insanity. The district court denied Satterfield’s motion to suppress evidence seized in the motel room. He concedes the legality of his arrest, but contends the search was not incidental. He was arrested by Indiana police, in the hall of the motel. The police turned him over to the FBI agents who had arrived on the scene. After he was driven away, other FBI agents searched his room. Satterfield admits that the Indiana police could have made a warrantless search, but argues that the FBI agents, not having made the arrest, cannot justify their search as incidental to it. The personal searches of Gregg and Satterfield produced money taken from the bank. The search of their rooms revealed a shopping bag identified at trial as having been used in the robbery, and a car key which led to the seizure of clothes in the car said by eye-witnesses to have been worn by the robbers. The substance of Satterfield’s contention on these facts, relying principally on Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), is that the search was unreasonable and the fruits inadmissible in evidence. Preston’s “remote in time or place from the arrest rule” has no application here, since the search of the automobile was reasonably contemporaneous in time and place of arrest. See United States v. Francolino, 367 F.2d 1013, 1017 (2d Cir. 1966). The search took place at the scene of Satterfield’s arrest and only minutes later. We think the search was reasonable, under United States v. Rabinowitz, 339 U.S. 56, 61, 70 S.Ct. 430, 433, 94 L.Ed. 653 (1950), “to find and seize things connected” with the bank robbery which the officers had reasonable grounds to believe Gregg and Satterfield had recently committed. That the search was made by FBI agents instead of Indiana policemen in this federal offense is of no consequence. The cooperative efforts of national and local law enforcement officers is necessary and lawful. See United States v. Simon, 409 F.2d 474 (7th Cir., April 15, 1969). Finally, Satterfield contends the admission of tainted pre-trial identification evidence is denial of due process. He relies upon the plain error rule to overcome his failure to object at trial. The challenged identifications took place July 18, 1966, before the cutoff date of July 12, 1967, set in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), for the rule — announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)— that excludes identification evidence tainted by exhibiting the accused, without the aid of counsel, to identifying witnesses before trial. See also Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402. Satterfield relies upon the “totality of circumstances” rule recently announced in Foster v. California, and earlier in Stovall and Simmons v. United States, 390 U.S. 377, 382-386, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), for a holding that the identifications here were made under unnecessarily suggestive conditions conducive to mistaken identification, and thus fundamentally unfair.
7396370-14580	ORDER STEVENS, District Judge. Plaintiffs brought this lawsuit to recover the unpaid balance on seven promissory notes. The Federal Deposit Insurance Corporation (FDIC) acquired all of these notes in its capacity as appointed receiver for Farmers State Bank (Bank). The FDIC, in its corporate capacity, later purchased the notes from the receiver. After the suit was filed defendant Merchants Asset Management Corporation (Merchants) purchased the notes in Counts I through VI of plaintiffs’ complaint and, consequently, was substituted as a party plaintiff in those counts. The FDIC remains the holder of the note at issue in Count VII. The case is currently before the court on the FDIC’s motion for summary judgment on Count VII of the complaint and on Merchants’ motion for summary judgment as to Counts IV, V and VI of the complaint. In addition, defendant Newhart has filed a motion for default judgment alleging that plaintiffs have failed to answer the counterclaim contained in his answer filed on August 17, 1987. The court will address plaintiffs’ summary judgment motions together as the issues involved in those motions are similar. The court will then address defendant’s motion. I. Plaintiffs’ Summary Judgment Motions In his answer to plaintiffs’ complaint Newhart admits that he executed the notes at issue in Counts IV through VII of the complaint but he denies that value or consideration was received for the notes since he did not receive any of the proceeds of the notes. Each of the notes, however, stated that they were executed “for value received.” See Exhibits 4 through 7 to Plaintiffs’ Complaint. Newhart also alleges that he is not liable because the Bank extended the notes without his consent and, therefore, discharged him from liability. Finally, he alleges that the Bank, through its officers, knew that he was signing the notes only as a surety and not with any liability. This court may grant summary judgment only 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). In making this determi- • nation the court is guided by the Supreme Court’s reminder that summary judgment is “properly regarded not as a disfavored procedural shortcut but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). Thus, Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried ... but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis. Id. See also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (“When the moving party has carried its burden of Rule 56(c), its opponents must do more than simply show that there is some metaphysical doubt as to the material facts.... In the language of the Rule, the non-moving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ”) (footnote and citations omitted) (emphasis in original); Osborn v. E.F. Hutton & Co., Inc., 853 F.2d 616, 618 (8th Cir.1988) (“In order to preclude the entry of summary judgment it is incumbent upon the non-moving party to make a sufficient showing on every essential element of its case on which it bears the burden of proof.”). Suits brought “to enforce promissory notes are among the most suitable classes of cases for summary judgment, especially when the moving party shows execution, delivery and amount of the note.” FDIC v. Willis, 497 F.Supp. 272, 276 (S.D.Ga.1980). Newhart argues that summary judgment is inappropriate in this case because material issues of fact exist on the viability of his defenses of lack of consideration, discharge, and the effect of an alleged agreement with the Bank that defendant was not liable on the note. None of these defenses is sufficient to preclude the entry of summary judgment, however, since the FDIC acquired the notes through a purchase and asset agreement and, therefore, took the notes as a holder in due course. Newhart first contends that the notes were not supported by consideration since he did not receive the proceeds of any of the notes. The notes themselves, however, specifically state that value was received. Under Missouri law “proof of consideration is not required of an obligee who brings an action on a written agreement which imports a consideration_” Empire Gas Corp. v. Small’s LP Gas Co., 637 S.W.2d 239, 246 (Mo.App.1982). Indeed, a note which recites that it is “ ‘for value received’ is prima facie evidence of consideration to support that agreement.” Gover v. Empire Bank, 574 S.W.2d 464, 468 (Mo.App.1978). See also United States v. Glenn, 585 F.2d 366, 368 (8th Cir.1978) (“Under Missouri law a presumption exists that a note has been executed for valuable consideration” especially if the note recites that it was executed “for value received.”). The fact that Newhart did not receive the proceeds of the loan is not sufficient to rebut the presumption of consideration. Wyckoff v. Commerce Bank of Kansas City, 561 S.W.2d 399, 401-402 (Mo.App.1977) (“[I]t is the settled rule that a single consideration which moves to any one of two or more contemporaneous comakers of a note will be adequate and sufficient to support the undertaking of them all.”) (quoting Will v. Trumpelman, 171 S.W.2d 732, 734 (Mo.App.1943)). Thus, Newhart’s lack of consideration defense is without merit. Newhart next argues that he was discharged from any obligation he may have had on the note when the Bank extended the note without notifying him. The note provides, however, that “all parties to this instrument, whether as maker, co-maker, endorser, or guarantor, hereby waive presentment, protest, demand, notice of dishonor or default and agree to any and all renewals, extensions ... without notice to and without affecting the liability of the undersigned_” See Exhibits 1 through 7 of Plaintiffs Complaint. This waiver of notice provision is sufficient to hold Newhart liable on the note. Adelman v. Centerre Bank of Kansas City, 696 S.W.2d 802, 804 (Mo.App.1985). In addition, basic principles of contract law require that the court give full effect to the unambiguous language of the note. If there are “no ambiguities in the note’s terms, the intentions of the parties are to be ascertained by the court as a question of law within the four corners of that document and it alone.” Rouggly v. Whitman, 592 S.W.2d 516, 519 (Mo.App.1979). See also Bradley v. Buffington, 500 S.W.2d 314, 318 (Mo.App.1973) (“Intent is gleaned from the four corners of the instrument and disclosed by the language used as contradistinguished from any secret intent.”). Thus, the fact that Newhart alleges that the Bank knew that he signed the note only as a surety is not dispositive since the note itself does not contain any language to this effect. The fact that no writing memorializes Newhart’s alleged agreement with the Bank is especially important since the FDIC is attempting to recover on the notes in its corporate capacity. Federal common law has long held that there is a “federal policy to protect [the FDIC] and the public funds which it administers, against misrepresentations_” D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). This common law policy was codified in the Federal Deposit Insurance Act of 1950, 12 U.S.C. § 1823(e). Under this section of the Act no agreement which tends to diminish the right, title or interests of the corporation [FDIC] in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank. Courts have strictly construed these requirements and have held that an individual cannot assert a defense against the FDIC unless all four requirements are met. If one or more requirements are not met the FDIC obtains a note as a holder in due course when it acquires the note pursuant to a purchase and assumption agreement. Langley v. FDIC, 484 U.S. 86, 108 S.Ct. 396, 402, 98 L.Ed.2d 340 (1987). See also FDIC v. Wood, 758 F.2d 156, 159 (6th Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 286 (1985) (“When the FDIC in its corporate capacity, as part of a purchase and assumption transaction, acquires a note in good faith, for value, and without actual knowledge of any defense against the note, it takes the note free of all defenses that would not prevail against a holder in due course.”); FDIC v. Merchants National Bank of Mobile, 725 F.2d 634, 635 (11th Cir.), cert. denied, 469 U.S. 829, 105 S.Ct. 114, 83 L.Ed.2d 57 (1984) (Section 1823(e) gives “to assets acquired by the Federal Deposit Insurance Corporation special protections that are not available to ordinary holders of commercial paper and are not dependent upon whether FDIC would qualify as a holder in due course under state law.”). Courts require strict compliance with section 1823(e) to insure that federal or state bank examiners reviewing a bank’s records can make reliable evaluations of whether to liquidate the bank’s assets without wondering whether secret agreements exist between the bank and the obligee. See, e.g., FDIC v. La Rambla Shopping Center, 791 F.2d 215, 219 (1st Cir.1986) (Section 1823(e) “protects the FDIC when, as a corporation, it buys assets ... against the risks that those assets come accompanied with liabilities that the FDIC cannot readily ascertain from its examination of the bank’s books.”). Both the language and policy of section 1823(e) negate Newhart’s argument that he cannot be held liable under the notes since the FDIC would not be considered a holder in due course under Missouri law. The terms of section 1823(e) preempt Missouri law so that even if plaintiff had an agreement with the officers at the Bank that he was not liable on the note the agreement is not valid in this case since it was not in writing, the first requirement of section 1823(e). As one district court within this circuit has noted “[i]f any one of the four requirements of section 1823(e) is shown to be unsatisfied, any side agreement between [the obligee] and the Bank is not enforceable against the FDIC.... Section 1823 does not grant the court discretion to balance the equities in determining whether an agreement can be enforced.” FDIC v. Manatt, 688 F.Supp. 1327, 1329 (E.D.Ark.1988) (citations omitted). Thus, no issue of material fact exists on the FDIC’s Count VII claim against Newhart and summary judgment is appropriate on that count. Newhart argues that even if the FDIC is protected by holder in due course status, Merchants cannot claim that protection since it obtained the notes in a subsequent purchase from the FDIC. This argument has been expressly rejected in this district. See Maple Tree Investments, Inc. v. Johnson, No. 88-6018-CV-SJ-6 (W.D.Mo. Oct. 24, 1988) (unpublished opinion). Victoria Johnson, one of the defendants in Maple Tree, had guaranteed a note that the FDIC purchased in its corporate capacity from receiver FDIC which acquired the note from the failed First Stock Yards Bank. The FDIC then sold the note to Merchants. Johnson acknowledged that her defenses to the guarantee had been cut off by the FDIC’s acquisition of the note, but argued that Maple Tree could not assert the FDIC’s holder in due course status. The court disagreed, holding that Johnson’s defenses could not “be revived simply because the FDIC transferred the note to a third party.” Id. at 11. See also Maple Tree Investments, Inc. v. Cole, 87-6037-CV-SJ-6 (W.D.Mo. Oct. 27, 1988) (unpublished opinion) (Once “a defense is cut off by corporate FDIC’s acquisition of the guaranty agreement, it cannot be revived simply because the FDIC transferred the note to Maple Tree Investments.”). The court finds the reasoning of these two cases to be compelling, especially since a contrary result would emasculate the policy behind section 1823(e) of encouraging the FDIC to participate in transfer agreements: if the FDIC was not allowed to transfer its holder in due course status to subsequent buyers there would be less of an incentive for the FDIC to protect the assets of failing banks since the FDIC would have a smaller market for the notes that it acquires in its corporate capacity. As a result, this court finds that the FDIC’s transfer of the notes at issue in Counts IV, V and VI included the transfer of holder in due course status to Merchants and, therefore, Merchants is entitled to summary judgment on Counts IV, V and VI. The affidavits currently on file detailing the amount of principal and interest due on the notes are outdated, however. As a result, the court will require the plaintiffs to submit more current affidavits detailing the principal and interest due as of this date before an exact amount of judgment is entered. II. Defendant’s Motion for Default Judgment Finally, defendant seeks entry of a default judgment on its “counterclaim” against plaintiffs based on the fact that neither plaintiff answered the counterclaim. Defendant’s alleged counterclaim is contained in its answer to plaintiffs’ complaint but is titled “Count Two” of the answer rather than “Counterclaim.” Plaintiffs argue that since the counterclaim was not “denominated as such” in accordance with Fed.R.Civ.P. 7(a) no reply was necessary. See also Shelter Mutual Insurance Co. v. Public Water Supply District No. 7 of Jefferson County, Missouri, 747 F.2d 1195, 1198 (8th Cir.1984) (“If a counterclaim is to be asserted, it should be designated and pleaded as such.”).
1009956-23036	TJOFLAT, Circuit Judge: I This case arises out of an apparent conspiracy to import several controlled substances into the United States. In September 1974, two men flew a plane to Colombia and returned several days later. Upon their return, they landed in Hendry County, Florida, where they were arrested. A search of their plane revealed that it was carrying about six pounds of cocaine, 578 pounds of marijuana, and 15 pounds of hashish. Eventually, five men were indicted in connection with these events. The appellant Fuiman was one of the five. Fuiman’s alleged connection with the conspiracy was financial in nature — the government’s case was that Fuiman had bankrolled at least part of the transaction. He apparently was never directly involved with the mechanics of the operation. In fact, all of Fuiman’s alleged activities which connect him with the transaction took place in Philadelphia, Pennsylvania. Fuiman was tried separately from the other defendants in West Palm Beach, Florida, in early October 1975. The government’s case-in-chief was based upon the testimony of three witnesses, all of whom were in some way connected with the smuggling operation. The key witness was one Harkness, who was one of the two men arrested at the time the plane was initially seized. Harkness testified that he had met with Fuiman in Philadelphia several times over the summer of 1974, and that Fuiman had eventually given him — either directly or through a go-between named Coolbaugh — a sum of money totalling about $20,000. This ’was Fuiman’s sole connection with the operation. Moreover, it became apparent during the government’s case that there was no evidence to connect Fuiman with the marijuana and hashish smuggling — that is, that Fuiman was at most involved with the cocaine aspect of the deal. Accordingly, the district judge directed (upon timely motion) a judgment of acquittal as to those portions of the indictment dealing with marijuana and hashish, so that the charges relating to cocaine were the only ones remaining when Fuiman’s defense began. Fuiman’s defense consisted of testimony from several character witnesses and from Fuiman himself, who categorically denied any involvement in the operation. After closing argument, the jury was charged and retired to deliberate late in the afternoon. They deliberated for about an hour and. a half, went home, and reconvened at 9:00 the next morning. After a while, the jury sent a note to the judge which read as follows: The jury respectfully requests a reading of Title 21, Section 952(a)(1). Art Markusan, Forman [sic] P.S. We feel that defendant Fuiman was guilty of financing the conspiracy but may not have known about the cocaine. How do you suggest we resolve this. In response to the note, the court read the requested statute twice to the jury. After the reading of the statute, the jury foreman asked the court to read Schedule II, Sub-chapter II (the schedule of controlled substances referred to in the statute). The court did not do that, but did tell the jury that cocaine was a controlled substance within the meaning of the statute. The jury again retired to deliberate. After a brief period of further discussion by counsel, the judge again recalled the jury in an effort to clear up possible confusion about the court’s dismissal of the marijuana and hashish charges. The court explained the indictment to the jury — that it charged Fuiman with conspiring “knowingly and willfully to commit an offense against the laws of the United States” — and explained that the offense in question was the violation of the statute which the court had read to the jury a few moments before. The jury then retired once again. About forty minutes later, the jury returned with its verdict. It found Fuiman guilty of Count I of the indictment (conspiracy) and not guilty of the remaining counts (aiding and abetting the importation of cocaine, and aiding and abetting the possession of cocaine with intent to deliver). Thus, the final result as to each count of the indictment was this: Guilty Count I Conspiracy to import cocaine. Not Guilty Count II Aiding and abetting the portation of cocaine. Dismissed Count III Aiding and_ abetting the portation of marijuana hashish. inl- and Not Guilty Count IV Aiding and abetting the possession of cocaine with intent to distribute. Dismissed Count V Aiding and abetting the possession of marijuana and hashish with intent to distribute. Ultimately, Fuiman was sentenced to four years for the conspiracy charge, with three years’ special probation. On this appeal, Fuiman argues (1) that the jury’s verdict was fatally inconsistent, and should have been set aside, and (2) that the district judge’s supplemental charge to the jury was reversibly deficient because (a) the charge was not sufficiently clear, and (b) the charge was not sufficiently evenhanded because it did not contain an explicit instruction on the defendant’s presumption of innocence and on the meaning of “reasonable doubt.” For the reasons set forth below, we find neither of these arguments persuasive and affirm the conviction. II With respect to the inconsistency of the jury’s verdict, it is well established that inconsistent verdicts on a multi-count indictment do not per se invalidate a jury’s findings. As Mr. Justice Holmes wrote in Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), “Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.” Thus, as a general proposition, if a jury has convicted a defendant on one count of an indictment, and the government has adduced evidence legally sufficient to convict the defendant on that count, then whatever the jury did with the remaining counts is immaterial to the appellate inquiry. And this is no less true in a situation where there is a logical inconsistency when the jury’s findings on all the counts of the indictment are considered as a whole. See, e. g., United States v. Stiglets, 463 F.2d 242 (5th Cir. 1972). In this case, however, Fuiman’s argument seems to center on the “overt act” requirement of the federal conspiracy statutes. Fuiman argues that “[t]he only overt act alleged in the indictment connecting [Fuiman] to the conspiracy and the substantive counts was Overt Act 1 of Count I . .” The overt act he mentions was the alleged meeting between Fuiman and two other men in Philadelphia, at which meeting Fuiman allegedly provided money for the scheme. Fuiman argues that the jury’s acquittal of him on the importation and possession with intent to distribute counts necessarily implies that the jury felt that no such meeting took place. Thus, he argues, the conspiracy conviction must fail because there was no overt act to support the conspiracy. Fuiman’s argument misconstrues the overt act element of the conspiracy statute. To convict Fuiman of the conspiracy, the government did not have to show that Fuiman himself committed some overt act. All the government needed to show was that at least one conspirator committed at least one overt act in furtherance of the conspiracy. See, e. g., Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); United States v. Fontenot, 483 F.2d 315 (5th Cir. 1973). At Fuiman’s trial, the government adduced evidence of a number of overt acts committed by various conspirators, including the actual importation of the cocaine via airplane from Colombia. Thus, even if Fuiman himself had not committed any overt act in furtherance of the conspiracy, that fact would not in itself preclude his culpability under the conspiracy statute. Fuiman contends, however, that Herman v. United States, 289 F.2d 362 (5th Cir. 1961), dictates a contrary conclusion. In our view, Fuiman’s reliance on Herman is misplaced. In that case, a panel of this court reversed a defendant’s conspiracy conviction while affirming his conviction of a substantive offense. The defendant, Herman, had been convicted of transporting stolen goods in interstate commerce and of conspiring with two other men, Slofsky and Rapaport, to transport the stolen goods. The only overt act alleged by the government to support the conspiracy was the receipt of the stolen goods by Slofsky and Rapaport. Slofsky and Rapaport, however, were acquitted of receiving the stolen goods. Thus, this court reversed Herman’s conspiracy conviction because there were no remaining conspirators besides Herman himself. Fuiman’s chief reliance is placed upon a passage of the Herman opinion in which Judge Wisdom writes that where the substantive offense is the overt act supporting conviction on the conspiracy count, an acquittal of the substantive offense operates as an acquittal of the conspiracy count, if the acquittal of the substantive offense constitutes a determination that the overt act was not committed. Id. at 368. This passage is inapposite to Fuiman’s case for two reasons. First, it addresses the situation in which a substantive offense is the only overt act which is alleged in support of a conspiracy charge. In Fuiman’s case, the substantive cocaine offenses were not the only overt acts alleged to support the conspiracy. Since his acquittal of the substantive cocaine offenses did not constitute a final determination that no overt act was committed, the acquittal of the substantive offenses did not operate as an acquittal of the conspiracy count. Second, the passage relied upon by Fuiman did not even remotely address Fuiman’s situation, where a defendant is tried under a multi-count indictment alleging a conspiracy offense and various substantive offenses. All that the Herman passage purported to deal with was the status of Slofsky and Rapaport, Herman’s alleged co-conspirators. The Herman panel had to examine whether these two men could be acquitted of the substantive offense in the case but still be considered conspirators to support Herman’s conspiracy conviction. The only overt act alleged to support the Herman conspiracy was Slofsky’s and Rapaport’s receipt of the stolen goods. Thus, by acquitting Slofsky and Rapaport, “the jury decided that [they] were not conspirators.” Id. at 369. From this fact it necessarily followed that Herman himself could not be convicted of conspiracy, since a one-person conspiracy is both a legal and a logical impossibility. Thus, the Herman case is of no real help to Fuiman. He is still confined to the argument that the evidence adduced at trial was insufficient to support his conviction on the conspiracy count. And after a review-of the evidence in the light most favorable to the verdict below, we are convinced that there was more than ample evidence to justify the jury’s verdict. Ill Fuiman’s second argument for reversal— that the district court’s supplemental charge to the jury was reversibly erroneous — centers on the events that transpired .after the jury requested that the district judge reread the conspiracy statute. Pursuant to the jury’s request, the district judge twice reread the statute to them. The judge expressly refused comment upon the “P.S.” to the note, emphasizing to the jury that he could not suggest how they resolve the factual issues in the case. After fairly summarizing the various counts remaining in the indictment, the district * judge added these supplemental instructions: You will remember that I charged you what is meant by “knowingly” and “Willfully”. In that connection you were charged that an act is done knowingly if it is done voluntarily and intentionally, and if it is not done because of a mistake or accident or through inadvertence of some kind or for any innocent reason, and you will remember that the word “willfully” was defined as an act done voluntarily and intentionally, and with the specific intent to do something that the law forbids, that is to say with bad purpose either to disobey or to disregard the law. You will also remember what I told you on so many occasions, and that is that the Government must prove these elements, each element of each offense beyond a reasonable doubt, and in determining these issues you will, of course, review in your mind and carefully consider all the evidence that bears on the elements involved. Tr. at 371. Additionally, the court informed the jury that cocaine was a controlled substance within the meaning of the conspiracy statute. After the jury had once again retired to deliberate, and the court had once again heard argument from counsel, the court recalled the jury and charged them as follows: THE COURT: After you left the courtroom, Mr. Foreman, and members of the jury, it occurred to the Court that, perhaps, I should call you back and have another word with you. The reason that the Court sent a copy of the indictment with you to the jury-room is because during the trial the Court entered an order which deleted from the indictment two of the counts which were originally read to you when we were doing the voir dire examination and selecting the jury. Do you remember? THE JURY: (Nod in the affirmative) THE COURT: So that you now have three counts and the first count charges a conspiracy on the part of the defendant, charging that he and others conspired knowingly and willfully to commit an offense against the laws of the United States, and the indictment charges that the offense which constituted the unlawful purpose of the conspiracy was the violation of the statute which I just read to you a moment ago, 952(a). Count II charges that this defendant unlawfully, intentionally imported into the United States a controlled substance, cocaine, from someplace outside of the United States; and the fourth count charges that this defendant was knowingly and intentionally in possession of cocaine with the intent to distribute it. Now, that copy of the indictment was sent to you so that it would be available to you. You have those three separate counts to deal with. It is necessary, as I told you previously, to unanimously reach a unanimous verdict, if you can, with respect to each of those counts. Mr. Foreman, and members of the jury, you may retire to the juryroom. Tr. at 378-79. Forty minutes after receiving these instructions, the jury returned its verdict. Fuiman argues that the court’s supplemental charges to the jury, considered in context, were deficient in two respects. First, he argues that the charges were insufficient to clear away jury confusion putatively arising from the dismissal of the marijuana and hashish charges. Second, he argues that the supplemental charges were prejudicially favorable to the government’s case to the detriment of his own case. We cannot agree with either of these contentions. First, we narrow Fuiman’s complaint as to the “jury confusion” issue to an argument over the first count of the indictment, the count under which Fuiman was convicted. In this connection, Fuiman’s contention is that the jury was unclear about the scope of Count I following the trial court’s directed verdict of acquittal on the marijuana and hashish charges. Of course, the two separate counts involving marijuana and hashish had been completely severed from the indictment, but Count I, which still remained, had originally recited both marijuana/hashish- and cocaine-related conspiracies. Emphasizing this aspect of the situation confronting the jury, and citing Mr. Justice Frankfurter’s widely-quoted directive that a trial court’s supplemental jury instructions should be designed to clear away the jury’s difficulties “with concrete accuracy,” Fuiman asserts that Count I created a confusion that the trial judge failed to take adequate steps to dispel. We reject this argument because we find the court’s supplemental charges both clear and responsive to the jury’s inquiry. The court reread the statute as the jury had requested, and explicitly informed the jury that cocaine was a controlled substance within the meaning of the statute. The court never mentioned marijuana and hashish in connection with the conspiracy statute. Additionally, the court in its second supplemental charge reminded the jury that they had a copy of the indictment with them, and the substantive marijuana/hashish counts had already been excised from that indictment. Under these circumstances, we hold that the court’s supplemental instructions were sufficiently clear and responsive to the jury’s inquiry to fall squarely within the trial court’s range of discretion in this area. In the process of evaluating Fuiman’s “jury confusion” argument, we are especially aware of the importance of viewing the record as a whole in order to discern the potential sources of the jury’s alleged misconception of the case. Of course, such an inquiry is necessary in a case such as this because it is only through a consideration of what might have misled a jury that we may accurately judge the adequacy of a trial court’s response to that jury’s inquiries. In Fuiman’s case, the record discloses that the existence of any jury misapprehensions arising out of the status of the marijuana/hashish charges is well nigh inconceivable. The court indicated to the jury that the cocaine-related offenses were the only offenses left for them to consider in at least three instances: at the close of the government’s case; in the original instructions to the jury; and in the second set of supplemental instructions. Considered in the light of the whole record, then, Fuiman’s first complaint with the court’s supplemental charges is meritless. Fuiman’s second complaint is that the court’s supplemental charges were reversibly defective because they allegedly failed to avoid favoring the government’s case. Specifically, Fuiman argues that the court should have reinstructed the jury on the defendant’s presumption of innocence and the meaning of “reasonable doubt”. We have read the court’s supplemental charges and its original instructions as a whole, and cannot agree. The supplemental instructions were, in our opinion, carefully balanced to avoid prejudicing either side’s case before the jury. The court did remind the jury of the reasonable doubt standard, though it did not repeat its original full-blown explanation of that standard. While in some instances a complete reiteration of the government’s burden of proof and the defendant’s presumption of innocence may be the proper course for the trial judge to take, we do not feel that the circumstances of this case warranted such action. In addition to reminding the jury of the government’s burden of proof, the court read the statute as the jury had requested, briefly summarized the elements of the offenses charged in the indictment, and completely recharged the jury on the meaning of “knowingly” and “willfully.” The court’s instructions did not ignore any defense raised by Fuiman, nor did they summarize the legal issues in a manner which in any way prejudiced Fuiman’s case. On the contrary, the supplemental charges were rather carefully constructed to avoid favoring either side of the case. Accordingly, Fuiman’s argument that they were reversibly erroneous must fail. IV In sum, we hold that the inconsistency in the jury’s verdict as a whole does not invalidate the portion of that verdict which found Fuiman guilty of conspiracy to import cocaine; that the district court’s supplemental instructions to the jury were sufficiently responsive to the jury’s inquiry; and that the district court’s supplemental instructions were not prejudicial in failing to include full instructions on the defendant’s presumption of innocence and the government’s burden of proof. Accordingly, the judgment of the district court is AFFIRMED. . The five-count indictment alleged that all five men had committed the following offenses: Count I — Conspiracy to import cocaine, marijuana and hashish. 21 U.S.C. §§ 963, 952(a). Count II — Importation of cocaine. 21 U.S.C. §§ 952(a), 960(a)(1). Count III — Importation of marijuana and hashish. 21 U.S.C. §§ 952(a), 960. Count IV — Possession of cocaine with intent to distribute. 21 U.S.C. § 841(a)(1). Count V — Possession of marijuana and hashish with intent to distribute. 21 U.S.C. § 841(a)(1). Additionally, Counts II-V charged each of the five men with aiding and abetting the commission of the substantive offenses in violation of 18 U.S.C. § 2. . Although this count of the indictment had originally charged a conspiracy to import marijuana and hashish as well as cocaine, the district judge had already directed a verdict of acquittal on all marijuana and hashish offenses. Tr. at 181-82. . Appellant’s brief at 11. . See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). . The main area of concern expressed during defense counsel’s argument to the district court at this juncture was that the jury might have become confused by the dismissal of the marijuana and hashish counts of the indictment. The court pointed out to defense counsel that “they have the indictment and there is no mention of marijuana and hashish in the indictment.” Tr. at 374. However, the court agreed to recharge the jury if defense counsel insisted: “If you feel strongly and sincerely that there is some confusion about the marijuana and hashish, Counsel, I am sure that I would honor your reaction and call them back here and charge them on that.” Tr. at 375. Subsequently, the court recalled the jury and gave them its second supplemental charge. . Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 90 L.Ed. 350 (1946). . As the court explained to the jury: The Court has made a ruling which excludes from your further consideration the charges that are set forth in Counts III and V, which pertain to the alleged violations of the laws dealing with marijuana and hashish; so with regard to Counts III and V, you will not be called upon to consider the innocence or guilt of the defendant. Now, with respect to Count I, which is the conspiracy count of the indictment, so much of that count as pertains to and charges a conspiracy to import marijuana and hashish is deleted, stricken. So, with respect to Count I, the charge now before the jury and the Court, is the charge that this defendant conspired, confederated and agreed with others named therein to knowingly and willfully import into the United States, contrary to Federal law, a controlled substance, cocaine, but not to include a conspiracy to import marijuana and/or hashish. Counsel, have I stated that clearly and sufficiently? MR. FERGUSON: Yes, sir. MR. NATALI: Yes, sir. Tr. at 187-88. . Wherein the court stated, [T]he gist of the offense charged in the conspiracy count of the indictment is the alleged combination or agreement between these defendants to violate Section 952(a), Title 21, United States Code, which has been read several times; and, specifically by unlawfully importing into the United States from a place outside thereof a narcotic controlled substance, cocaine. Tr. at 345. . See the portion of the record quoted at 1159 supra.
1010640-10424	EVANS, Circuit Judge. Daniel J. Scanlan, a restaurant keeper, on September 19, 1929, took out an accident insurance policy with defendant which ran for a term of six months. It was renewed each successive six months and was in force on November 22, 1935, when the insured died from an asserted accidental cause. Defendant offers two defenses. One would reduce its liability from $5000 to $2000. The other defense, if successful, would defeat all recovery. It is based on a provision of the policy which excepted liability if death were caused wholly or partly by bodily infirmity. Defendant moved for a directed verdict at the close of the trial. Its denial is the basis of the assignment which raises this second defense. The employment of the insured was changed from restaurant proprietor to that of bridge tender during the life of the policy without any increase in premium. The former employment was classified by defendant, so it here asserts, as an “ordinary” risk and the latter as a “medium” risk. Under the medium risk the maximum insurance coverage was two thousand dollars. The second defense rests upon the evidence which allegedly showed death was caused in part by bodily infirmity. On No vember 7, 1935, the insured was driving his automobile in the city of Chicago about 7:50 o’clock in the evening. His car collided with another motor vehicle at a street intersection, and he was injured. The seventh and eighth ribs on the left side were broken at a point in line with the arm pit. There was also a bruise on the inner part of the upper portion of the left leg and a wound on the left knee. The bruise was black and blue and “about the size of the palm of the hand.” The patient was afflicted with varicose veins in the area of the bruised portion of the left leg. The patient had the services of a doctor and also had a competent nurse. On the fifth day after the accident, the injured portion of the left leg became inflamed and ice packs were placed thereon. By the nineteenth of November, the inflammation and soreness had subsided, and the condition remained without much change until his death on the twenty-second. The nurse who attended him stated that at or about two A. M. the patient called for a drink of water. She observed that he was gasping for breath and after he drank the water his gasping became worse. She took his pulse only to find it had ceased beating, and she immediately gave him a heart stimulant. His gasping continued until he died about fifteen minutes later. The autopsy and post mortem participated in by two physicians disclosed the broken ribs and in the lower portion of the left lung there was a consolidated area which in the opinion of Doctor H. could be caused either by pneumonia or a blood clot. The first possible cause was rejected because of the absence of other symptoms which are almost always present in pneumonia cases. In the bruised area of the left leg near the enlarged varicose vein there was found a blood clot or thrombus. The blood clot was removed. “It was a rather slippery formation which filled the blood vein like a east fills a mold.” No other blood clots were found. One end of the blood clot was tapered off in a smooth fashion and the other end terminated abruptly and showed rough edges indicating that there may have been more of it at one time and that end portion was missing. One doctor gave his opinion to the effect that an incomplete thrombus like this indicates that one end was missing and had been carried to a new location in the body. In his opinion the cause of Scanlan’s death was a breaking off of a portion of this blood clot. The clot passed along the veins of the leg and was transported into the various veins which finally empty into the vena cava inferior, 'entering the heart at the right atrium or ante-chamber of the heart, going into the right chamber proper, from which right chamber it was transported into the pulmonary artery and then into the lung where it became stuck. f (a) We must reject defendant’s effort to reduce its liability on account of insured’s alleged change to a more hazardous occupation for two reasons. In the first place, the evidence fails to show that the statement or classification of risks in force at the time this policy was issued made bridge tending a more hazardous one than conducting a restaurant. There was filed with the state official a classification bearing date September, 1921. There was also evidence to the effect that the classifications therein appearing were changed in various respects before 1929. There was no competent evidence which showed that defendant’s classification of risks in September, 1929, placed bridge .tending in a more hazardous classification from that of a restauranteur. Another reason, equally strong, seems to prevent the application of this defense. The accident did not occur while insured was engaged in his occupation of bridge tending. He was riding around the city in his car about four hours after the day’s work was over when the accident occurred. The policy provided: “1. This policy includes the endorsements and attached papers, if any, and contains the entire contract of insurance except as it may be modified by the Company’s classification of risks and premium rates in the event that the insured is injured after having changed his occupation to one classified by the Company as more hazardous than that stated in the policy, or while he is doing any act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation, in which event the Company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate but within the limits so fixed by the Company for such more hazardous occupation.” We are clearly satisfied that the words “in which event” refer to the classification of occupation by the company as more hazardous and do not include the exception which covers “ordinary duties about his residence or while engaged in recreation.” Friend v. Business Men’s Assur. Co., 141 Kan. 470, 41 P.(2d) 759, 760; Business Men’s Assur. Co. v. Bradley (Tex.Civ.App.) 275 S.W. 622; Thorne v. Aetna Life Ins. Co., 155 Minn. 271, 193 N.W. 463. There is more doubt about the question of fact, namely, whether the insured was engaged in a recreation, than over the meaning and effect of the exception in case he was engaged in recreation. The plaintiff left his work and place of employment some four hours before the accident. He drove a fellow workman home and was at the time of the accident driving home, evidently “doing” some errands in the meantime. The most favorable view we can give to this evidence is to say a jury question was presented as to whether the facfs show the plaintiff to have been “engaged in recreation,” when the accident occurred. This inquiry gives rise to the question, What was his occupation at the moment if he were not “engaged in recreation” ? Defendant raised this question by a motion to direct a verdict. The motion was properly denied. (b) Defendant’s second defense, which •goes to the merits of the controversy, is based upon clause 9 of the policy which, eliminating unimportant words and clauses, reads as follows: “Clause 9. This insurance shall not * * * cover accident, injury, disability, death or any other loss caused wholly or partly, directly or indirectly, by disease or bodily or mental infirmity or medical or surgical treatment therefor; nor shall it cover * * death * * caused wholly or partly, directly or indirectly, by ptomaines or disease germs or any kind of infection, whether introduced or contracted accidently or otherwise (excepting only septic infection of and through a visible wound caused directly and independently of all other causes by violent and accidental means); nor shall it cover hernia of any kind, * * The precise question presented is: Was Scanlan’s death caused partially by his bodily infirmity? The evidence disclosed that the deceased had varicose veins in his injured leg before the accident, and that varicose veins are a bodily infirmity as that expression is used in the policy. We are not convinced that all varicose veins are, as a matter of law, bodily infirmities, but in the instant case we will avoid argument by assuming that the enlarged veins of the deceased were a bodily infirmity. The medical experts, three in number, testified at length upon thrombus, thrombosis, and embolism and the nature of varicose veins and as a cause of thrombus. The conclusion of one such doctor was “I believe if the injury had not been there and that vein had not been damaged, the likelihood of the thrombus forming would have been very remote.” Another witness said, “My opinion is that a varicose condition is predisposed to trauma and that injury may set up a thrombus in that leg.” “I have had occasion to find thrombosis where there was no varicose veins.” Another witness testified that a blood clot is formed in different ways, one being “an injury that damages the wall of the blood vessel.” The examining physician said that in his opinion the thrombus did not exist in the leg at the time of his first examination following the accident. Said he, “I believe the bruise is a causative factor of the thrombus because a damaged blood vessel is cause one for blood clot formation.” The most defendant could ask the court to do upon this evidence was to submit the case to the jury, which was done. Plaintiff might well have argued that the probability of varicose veins as a cause of death, as that term is properly used in insurance law, was so remote and speculative that a court must seriously consider the necessity of directing the jury to find for plaintiff. There are two facts which are significant and not disputed. First, there was no thrombus m the varicose vein or that area before the accident. Second, there was only a possibility of a thrombus occurring in the varicose vein in the absence of the injuries sustained. In short, the injury must have caused the thrombus to form in or near the varicose vein. While the bodily infirmity need not be the sole cause of the death to defeat recovery under this policy, it is well settled that the “cause” as here used, either sole or partial, refers to something different than a disease or affliction rendered more serious by the consequences of the accident.
3818063-17580	PER CURIAM: Defendant-Appellant Juan Benito Vedia (“Vedia”) appeals his conviction and sen tence for possession with intent to distribute a quantity in excess of 500 grams of cocaine and for conspiracy to possess with intent to distribute a quantity in excess of 500 grams of cocaine. We AFFIRM Ve-dia’s conviction and sentence for possession with intent to distribute a quantity in excess of 500 grams of cocaine, but, finding insufficient evidence to support Vedia’s conviction for conspiracy to possess with intent to distribute a quantity in excess of 500 grams of cocaine, we REVERSE Ve-dia’s conviction on that count and REMAND for entry of appropriate judgment and for recalculation of Vedia’s monetary penalties. Factual and Procedural History On April 3, 2007, Vedia, a truck driver, was driving his tractor-trailer north on I-35 near Laredo, Texas. When Vedia stopped at an immigration checkpoint, a canine alerted to the presence of drugs in a utility box behind the cab of his truck. United States Border Patrol Officer Phillip Sullivan (“Sullivan”) instructed fellow United States Border Patrol Officer Lorenzo Ponce (“Ponce”) to ask Vedia to exit his vehicle so they could inspect the box. Sullivan asked Vedia what was in the box, to which Vedia responded “I don’t know.” Sullivan then asked Vedia multiple times to open the box, and Vedia hesitated before complying. In the box were five bundles wrapped in black and containing cocaine. Vedia was arrested and charged on two counts: possession with intent to distribute cocaine and conspiracy to possess with intent to distribute cocaine. Vedia pleaded not guilty to both counts, and the case proceeded to a jury trial. At the beginning of the trial, the Government and Vedia stipulated that on or about April 3, 2007 roughly 6.759 kilograms of cocaine were found in a compartment on Vedia’s tractor, which he owned. Following this stipulation, the Government presented its case against Vedia primarily through the testimony of Border Patrol and Drug Enforcement Agency (“DEA”) Officers. The government first presented the testimony of Sullivan, who recounted the details leading to Vedia’s arrest. Sullivan testified that after his canine alerted to the box on Vedia’s tractor and Ponce asked Vedia to exit the tractor, Vedia claimed not to know what was in the box and was “really hesitant to comply” with Sullivan’s three requests that he open the box. The government next presented the testimony of Ponce, who corroborated Sullivan’s testimony that Vedia hesitated to open the box despite three requests from Sullivan. The Government also presented the testimony of DEA Agent Diaz (“Diaz”), who was recognized as an expert in the value of cocaine in Laredo and Dallas. Diaz testified that, based on the weight of the cocaine recovered from Vedia’s tractor, the value was at least $55,000. Diaz also testified, in response to the prosecutor’s questions, about the “business of drug trafficking,” explaining that cocaine is usually produced in South America and comes into the United States from Mexico. When the prosecutor asked “is it fair to say that as the drugs are going north there are multiple people involved in the drug business and they have all got different jobs ....” and “is it fail’ to say that a person driving [the drugs] from Point A to Point B, the driver is going to be the person held responsible for the load ...,” Diaz responded affirmatively to both questions. Finally, the Government called Border Patrol Agent Flores (“Flores”), who testified that he arrested Vedia in 2001 at the same 1-35 checkpoint involved in the current case. Flores described the events of the arrest: in 2001 Vedia was driving a tractor-trailer heading north, a canine alerted to Vedia’s tractor, marijuana was found hidden inside the tractor, and Vedia was convicted of drug smuggling. At the conclusion of Flores’s testimony, the district court admonished the jury that “the evidence [of Vedia’s past conviction is] being presented not to establish that the defendant is guilty in this case, but that it may be considered in connection with some other issue such as the issue of knowledge.” Once the government rested, Vedia moved for acquittal, arguing that the Government had not proven all elements of the charges beyond a reasonable doubt. The district court denied the motion, finding there to be sufficient evidence to submit the case to the jury. Subsequently, Vedia presented his defense premised on the assertion that he had no knowledge of the drugs found in his truck. Vedia testified that he was completely unaware of the cocaine in the box on his truck. Vedia also stated that he had never used the box in which the drugs were found and that he was unaware of what the box was intended to be used for, despite the fact that he had owned the tractor trailer for two years prior to the arrest. Following Vedia’s testimony, the defense rested and once again moved for acquittal, asserting that the Government had not proven Vedia’s knowledge of the drugs. Once again the district court denied the motion, and the jury convicted Vedia on both counts. During sentencing, the district court calculated Vedia’s sentencing guidelines range and pursuant to U.S.S.G. § 3C1.1 increased his offense level by two levels for obstruction of justice. Though Vedia objected to this enhancement, the district court held it to be proper, finding “that the defendant did commit perjury, in particular that he testified that he did not know about the drugs here, that that was material to the case and that the jury found, based on their finding of guilty, that he did in fact have knowledge.” The district court then sentenced Vedia to identical, concurrent terms of 142 months imprisonment for the two counts against him; this sentence fell within the guidelines range. Vedia timely appealed his conviction and sentence, claiming 1) that the evidence was legally insufficient to support his conviction, 2) that the district court erred in allowing the government to introduce evidence of his past conviction for possession with intent to distribute marijuana, 3) that the district court erred in permitting “drug profiling” testimony from Diaz, and 4) that the district court erred in imposing a two-point upward sentencing adjustment under U.S.S.G. § 3C1.1 for obstruction of justice. Discussion A. Sufficiency of the Evidence Vedia claims that the evidence at trial was insufficient to support his two convictions. When reviewing for sufficiency of the evidence, we are “highly deferential to the verdict” and inquire “whether the evidence, when reviewed in the light most favorable to the government with all reasonable inferences and credibility choices made in support of a conviction, allows a rational fact finder to find every element of the offense beyond a reasonable doubt.” United States v. Harris, 293 F.3d 863, 869 (5th Cir.2002) (quoting United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir.1997)). Applying this deferential standard to the record before us, we find the evidence sufficient to support Vedia’s conviction for possession with intent to distribute cocaine but insufficient to support Vedia’s convic tion for conspiracy to possess with intent to distribute cocaine. The elements of possession with intent to distribute cocaine are (1) knowing (2) possession of cocaine (3) with the intent to distribute. See United States v. Garcia-Flores, 246 F.3d 451, 454 (5th Cir.2001). Vedia contends that the Government presented insufficient evidence to establish the first prong, viz., that Vedia’s possession of the cocaine was “knowing,” claiming that the cocaine found inside the unlocked, exterior utility box of his truck was placed there without his knowledge. However, the jury found to the contrary, and the evidence is sufficient to support this conclusion. “[PJroof that possession of contraband is knowing will usually depend on inference and circumstantial evidence. No single piece of circumstantial evidence need be conclusive when considered in isolation; the question, rather, is whether the evidence, when considered as a whole, provides a substantial basis for the jury to find that the defendant’s possession was knowing.” United States v. Miller, 146 F.3d 274, 280-81 (5th Cir.1998) (citing United States v. Richardson, 848 F.2d 509, 514 (5th Cir.1988)). Here, the evidence, taken as a whole, provides a substantial basis for the jury’s finding that Vedia had knowledge of the cocaine. For example, the jury could have taken the evidence that Vedia hesitated to comply with repeated requests to open the box as a sign that he knew that it contained drugs. Likewise, the jury could have found incredible Vedia’s testimony that he had owned the truck for two years but had never used the box, did not know what it was used for, and had never looked inside, and the jury could have construed such an “implausible” or “less-than-credible” explanation as circumstantial evidence of guilty knowledge. See, e.g., United States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998); United States v. Casilla, 20 F.3d 600, 606 (5th Cir.1994); United States v. Diaz-Carreon, 915 F.2d 951, 955 (5th Cir. 1990). The jury could have also found that the value of the drugs being transported, here $55,000 worth of cocaine, indicated Vedia’s knowledge of the contraband. See, e.g., United States v. Gamez-Gonzalez, 319 F.3d 695, 699 (5th Cir.2003); United States v. Ramos-Garcia, 184 F.3d 463, 466 (5th Cir.1999). Finally, the jury could have inferred Vedia’s knowledge of the cocaine based upon Vedia’s prior conviction, under nearly identical circumstances, for possession with intent to distribute maiijuana. Based on this collection of evidence, the jury could have reasonably found that Vedia had knowledge of the cocaine. However, the evidence against Vedia is insufficient to support the conspiracy conviction. The essential elements of the conspiracy charge are (1) an agreement between two or more persons to violate the narcotics laws, (2) a defendant’s knowledge of the agreement, and (3) his voluntary participation in that agreement. United States v. Misher, 99 F.3d 664, 667 (5th Cir.1996). Though conspiracy may be proven through circumstantial evidence and a defendant may be convicted of conspiring with unknown persons, the government must produce some evidence that such alleged coeonspirators exist. See United States v. Hernandez-Palacios, 838 F.2d 1346, 1348-49 (5th Cir.1988) (“In this case the four codefendants were acquitted of the conspiracy charge. While the indictment alleged that there were other unknown conspirators, the evidence does not support the existence of any agreement or of any other conspirators with whom an agreement might have been reached.”). In fact, “[i]n comparable drug conspiracy cases where little to no evidence of other unknown coconspirators was presented, this Court has reversed the single purported conspirator’s conspiracy conviction, even though affirming his conviction of the related substantive offense of possession with intent to distribute.” United States v. Villasenor, 894 F.2d 1422, 1429 (5th Cir.1990) (citing United States v. Onick, 889 F.2d 1425, 1432 (5th Cir.1989); United States v. Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir.1988); United States v. Morgan, 835 F.2d 79, 82 (5th Cir.1987); United States v. Sheikh, 654 F.2d 1057, 1062-63 (5th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982)). Here, the government presented no evidence of any coconspirators. Thus, under the foregoing precedents, the evidence was insufficient to support Vedia’s conspiracy conviction. The government argues that Vedia’s conspiracy conviction should stand because the jury could have inferred involvement of others based on the quantity and high value of the cocaine Vedia was carrying. For this proposition, the government cites United States v. Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir.2002). However, Gutierrez involved many facts not present here that allowed for the inference of co-conspirators. In Gutierrez, the defendant passed through a checkpoint while driving a pickup truck pulling a trailer carrying a tractor, which had marijuana hidden in its wheels. See id. at 659. Unlike the instant case where Vedia owned the vehicle he was driving, in Gutierrez the defendant owned neither the pickup truck nor the tractor, so the ownership of the vehicles indicated involvement of other parties. See id. at 661. Also, in Gutierrez the marijuana was hidden in the wheels of the tractor, which took several tools and the help of four men to remove, and the 23 bundles of marijuana removed from the tires weighed a total of 309 pounds. See id. at 659. The complex process and heavy work of hiding the marijuana in Gutierrez likely necessitated multiple conspirators, whereas the facts here, a manageable quantity of cocaine hidden in an easily accessible box, do not necessarily imply the hand of multiple parties. In the instant case, the government offered no evidence of the existence of co-conspirators and the facts are insufficient for a rational juror to infer the participation of others beyond a reasonable doubt, so the evidence cannot sufficiently support Vedia’s conviction for conspiracy. B. Admission of Evidence of Vedia’s Prior Drug Conviction Vedia argues that the district court erred in admitting evidence of his 2001 conviction for possession with intent to distribute marijuana; however, the admission of this past conviction evidence, which was limited to demonstrating Vedia’s knowledge that he was carrying cocaine, was proper under Federal Rule of Evidence 404(b). Under Rule 404(b), evidence of other crimes, wrongs, or acts is admissible “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” U.S. v. Finley, 477 F.3d 250, 263 (5th Cir.2007). This court reviews a district court’s decision to admit Rule 404(b) evidence under a heightened abuse of discretion standard. See id. The admissibility of evidence under Rule 404(b) is analyzed in a two-step inquiry: first the extrinsic evidence must be relevant to an issue other than character and second the evidence must possess probative value that is not substantially outweighed by its potential for prejudice. Id. Vedia concedes that the relevancy prong of this test is met but argues that the prejudicial effect of his past conviction outweighs its probative value. Essentially Vedia argues that his prior conviction is not probative of his knowledge in this case because it is not similar enough to the facts of this conviction. This court sitting en banc has held that the similarity between extrinsic and charged offenses is a factor that can demonstrate the probative value of extrinsic evidence. See United States v. Beechum, 582 F.2d 898, 914-15 (5th Cir.1978) (en banc). Here, the facts of the extrinsic and charged offenses are nearly identical. In both instances, Vedia picked up his legitimate load and traveled en route to Dallas via the 1-35 checkpoint. Both times Vedia carried close to $300 in cash and was apprehended close to midnight. And in both incidents the drugs were located in or around the tractor. The only differences between the two cases are that they involved different drugs, marijuana versus cocaine, and in 2001 the drugs were hidden in the sleeper compartment of Vedia’s truck whereas in 2007 the drugs were found in a box on the outside of the truck. Vedia argues that this difference between the 2001 and 2007 cases destroys the probative value of the 2001 conviction evidence. However, the fact that every aspect of Vedia’s actions, except the precise location and type of drugs, is identical between the 2001 and 2007 cases indicates that the 2001 conviction is indeed probative under Beechum, 582 F.2d at 914-15, and that the district court did not abuse its discretion in finding as much. Moreover, the district court took measures to limit any possible prejudicial effect of the 2001 conviction by repeatedly admonishing the jury that the 2001 conviction could not be considered as proof of Vedia’s guilt and by giving a detailed limiting instruction that the 2001 conviction could only be considered for the limited purpose of determining motive, intent, identity, knowledge, opportunity, plan, preparation, and the absence of mistake or accident. Even assuming that admission of the extrinsic evidence may have posed a risk of undue prejudice, the court’s limiting instructions greatly minimized that risk. See United States v. Nguyen, 504 F.3d 561, 574-75 (5th Cir.2007). Accordingly, the district court did not err in admitting the evidence of Vedia’s 2001 conviction. C. Diaz’s Testimony Vedia argues that the district court erred in permitting Diaz to offer “drug profiling” testimony. Specifically, Vedia complains that Diaz’s agreement that “[it is] fair to say that a person driving [the drugs] from Point A to Point B, the driver is going to be the person held responsible for the load” is the functional equivalent of Diaz stating that in his expert opinion Vedia knew that the cocaine was in the box. Because Vedia’s counsel failed to preserve this issue by failing to object at trial, this court’s inquiry is limited to plain error review, which requires a finding of (1) error; (2) that is plain, which “at a minimum,” means “the error is clear under current law,” and (3) that affects the substantial rights of the defendant. United States v. Ramirez-Velasquez, 322 F.3d 868, 879 (5th Cir.2003).
3545235-6594	OPINION OF THE COURT SU-BROWN, Judge. Contrary to his pleas, the appellant was convicted by a military judge sitting as a special court-martial, of five specifications of violating a lawful general regulation governing rationed items in contravention of Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892 (1976). He was sentenced to a bad-conduct discharge and reduction to Private E-l. The convening authority approved the adjudged sentence, but suspended the bad-conduct discharge for a period of six months with provision for automatic remission. The convening authority also disapproved the finding as to a portion of Specification 4 of the Charge, without materially altering the offense charged. This case focuses on ration control procedures utilized in Korea, and appellant’s contention that the Government failed to provide him with any written Privacy Act warning for each transaction alleged to constitute a violation of the Ration Control Regulation. Appellant argues for application of the exclusionary rule as an appropriate remedy for violations of the applicable federal statute and implementing Army regulation. We disagree. Some understanding of ration control procedures is necessary as a preliminary to a discussion of the applicable law. The appellant was charged with and convicted of violating paragraphs 17(a)(8), (9), and (14), United States Forces Korea Regulation 27-5 (1 March 1980), by wrongfully purchasing merchandise in excess of the monthly dollar limitations, wrongfully purchasing merchandise in excess of item limitations, and wrongfully purchasing goods imported duty-free in excess of his personal needs. Some of the evidence used against the appellant consisted of transaction cards, JK Form 456 (U.S. Forces Korea High Value Purchase Record), JK Form 281 (U.S. Forces Korea Dollar/Controlled Food Item Purchase Record), and JK Form 856 (U.S. Forces Korea Packaged Beverage Purchase Record). The appellant completed these each time he made purchases at a post-exchange, commissary, or Class VI store. The transaction cards contain, among other items of information, the purchaser’s social security account number as provided by him, the quantities of a particular item bought, and in some cases the dollar amount spent. On most cards there is also a warning statement as to possible disciplinary action that could be taken should the purchaser violate the provisions of USFK/EA Reg 60-1 through improper purchase or disposition of items bought. Each card is signed by the purchaser, and subsequently monitored for excessive purchases. They can be retrieved by social security account number, and are used as evidence in prosecutions for violation of United States Forces Korea and Eighth Army Ration Control regulations. The cards do not contain any Privacy Act notice. However, before a purchaser becomes eligible to make a purchase at U.S. military retail sales outlets and have access to transaction cards, he must first fill out an application form (JK Form 126) for a Ration Control Plate (RCP). On this application form is a clearly printed Privacy Act notice setting forth the authority, principal purpose, routine uses, and effect on an individual not providing information. A part of the required Privacy Act notice goes on to state: This form is used as a source document for production of an RCP which is used for recording ration control transactions and ease of identification at medical facilities. Sales information accumulated for an SSN is available to Commanders/Law enforcement personnel for investigation of Ration Control Violations. The application form must be filled out by the purchaser regardless of whether he is applying for a permanent or temporary ration control plate. Once a ration control plate is obtained, it is then used each time a person makes a purchase. Information contained on the ration control plate, such as social security account number, category of purchaser, etc., is then transferred or “anvilled” on to the transaction cards which the purchaser signs. The appellant contended that the failure to give a Privacy Act notice whenever he provided information to complete a transaction card was a violation of Title 5, United States Code, § 552a, cited as the Privacy Act of 1974, and the applicable service regulation, Army Reg 340-21, Office Management, The Army Privacy Program, (C3, 1 Nov. 1980), and moved for suppression of the evidence. The military judge agreed that the government had not met the Privacy Act warning requirement. However, he denied the appellant’s motion to suppress the evidence on the grounds that exclusion of the transaction cards was not the appropriate remedy. The appropriate remedy, as provided by statute, would be either civil or criminal action against the persons who prepared the forms. We find that the transaction cards are not excludable evidence simply because they do not contain individual Privacy Act notices. We also find that under the particular facts of this case there was no Privacy Act violation. Evidence adduced at trial shows the appellant to have received adequate notice required by the provisions of section 552a(e)(3) of the Act. This section does not require that the notice be printed on the same form used to collect information from an individual. A separate form which can be retained by the individual is permissible. This case is similar to United States v. Amon, 669 F.2d 1351 (10th Cir.1981), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982). There the court held there was no violation of the appellant’s rights under the Privacy Act when he gave information on the W4 Form provided by the Internal Revenue Service, since the instructions accompanying the forms contained the necessary Privacy Act notice. We therefore find that appellant received the necessary Privacy Act notice by completing the application form which is a necessary prerequisite to receiving a ration control card. It is a well-established rule of statutory construction “that the law favors [the] rational and sensible construction” of a statute. A. Sands, Sutherland Statutory Construction § 45.12 (4th ed. 1973). To require a separate Privacy Act notice for each transaction which involves the use of a ration control card would propel soldiers and the government alike into a morass of meaningless paperwork. Nor are we bound by the military judge’s erroneous interpretation of the statute at trial. See United States v. Beebe, 47 C.M.R. 386, 391 (A.C.M.R.1973) (and cases cited therein). There was no violation of the Privacy Act.
9083090-14697	Order Granting Plaintiff’s Motion Requesting the Court to Take Judicial Notice of Official Records, Deposition Transcript and Exhibits to Deposition in Part and Denying in Part Plaintiff’s Request That The Court Receive These Documents into Evidence LEIF M. CLARK, Bankruptcy Judge. CAME ON for consideration the foregoing matter. On September 26, 2003, Plaintiff Manix Energy, Ltd. (“Manix”) filed a Motion Requesting the Court to Take Judicial Notice of Official Records, Deposition Transcript and Exhibits to Deposition (“Motion”) and that the Court receive such documents into evidence. On October 8, 2008, Defendant Bradley M. James (“James”) timely filed a Defendant’s Response to Plaintiffs Motion to Take Judicial Notice objecting to the propriety of taking judicial notice of these records and requesting a hearing to object to the admissibility of this evidence. As discussed below, the Court GRANTS Manix’s Motion Requesting the Court to Take Judicial No tice of Official Records, Deposition Transcript and Exhibits to Deposition in part as to the fact that documents were filed in a prior related case involving James’ corporation but DENIES in part Manix’s request that this Court receive such documents into evidence. This order has no effect on whether these documents can be used under the doctrines of judicial estop-pel or law of the case or whether they are independently admissible in this proceeding under the Federal Rules of Evidence. I. Factual Background Pure Energy, Group, Inc. (“Pure”), with James as their President, filed a voluntary Chapter 11 petition on November 21, 2001. Pure was represented by different counsel, Mr. William H. Oliver, than James is in this case, Ms. Penny K. Habbeshaw. In the adversary proceeding of Pure Energy Group, Inc. v. Manix Energy, Ltd., No. 02-5010, James was an intervenor in that case, gave deposition testimony, and was represented by Ms. Habbeshaw. On January 13, 2003, James filed an individual voluntary Chapter 7 petition. On his petition, James listed Manix as an unsecured nonpriority creditor for a guaranty agreement in the disputed amount of $7,619,112. Manix filed an adversary proceeding on April 15, 2003 with their Complaint Objecting to Discharge or, in the Alternative, to the Dischargeability of Debt. Manix claimed in their Complaint that on November 12, 1999, Pure executed a promissory note in Manix’s favor for $8,536,367.97. Part of this note was repaid to Manix during Pure’s Chapter 11 case. During discovery of Pure’s case, Manix learned that James had used some of Pure’s funds for personal expenses. Ma-nix objected to James’ discharge through the filing of this adversary proceeding. According to Manix’s Motion, Manix requests that this Court take judicial notice of the following ten official records and receive these documents into evidence: a. Transcript of this Court’s orders from February 7, 2002 in open court in the Pure bankruptcy case related to motions to use cash collateral and for relief from automatic stay and an application to employ (Docket # 93, No. 01-55536). The attorney there for Pure was Mr. Oliver. b. Transcript of the testimony of James in the Pure bankruptcy case before this Court on February 1, 2002 (Docket # 304, No. 01-55536). The attorney for Pure was Mr. Oliver. c. Judgment rendered in Adversary Proceeding No. 02-5010, Pure Energy Group, Inc. v. Manix Energy, Ltd. (Docket #55, No. 02-5010). This order was signed by this Court on May 30, 2003 and the attorney for Pure was Mr. Oliver. d. Second Amended Disclosure Statement of Pure in the Pure bankruptcy (Docket #236, No. 01-55536). This was signed by Mr. Larry B. Cochran, Pure’s CFO, and the attorney for Pure was Mr. Oliver. e. Second Amended Plan of Reorganization of Pure in the Pure bankruptcy (Docket #237, No. 01-55536). This was signed by Mr. Larry B. Cochran, Pure’s CFO, and the attorney for Pure was Mr. Oliver. f. Transcript of the deposition of James taken January 23, 2002 in the Pure Adversary Proceeding (Appendix A). This document was not found under either Case Number but was supplied by Manix’s counsel. Mr. Oliver represented James at this deposition. g. Pure’s Note Receivable ledger for James (Appendix B). This document was not found under either Case Number but was supplied by Manix’s counsel. h. Statement of Income by Well compiled by Pure (Appendix C; introduced as evidence in the Pure bankruptcy on January 31, 2002). This document was not found under either Case Number but was supplied by Manix’s counsel. i. Summary of Schedules filed by Pure in the Pure bankruptcy (Docket #28, No. 01-55536). This was signed by James. j. Statement of Financial Affairs filed by Pure in the Pure bankruptcy (Docket # 28, No. 01-55536) (this is actually found under Docket #25). This was signed by James. See Manix’s Motion, ¶ 4. II. Judicial Notice The usual method of establishing facts in a proceeding is through the introduction of evidence with the testimony of witnesses or proffering of documents to be admitted into evidence. See Russell, Bankruptcy Evidence Manual, § 201.1 (West 2000 ed.). If particular facts are outside the area of reasonable controversy, this process of authenticating evidence may be unnecessary, but a high degree of indisputability is the essential requirement. See id. Thus, judicial notice is a substitute for formal proof. See id. Under the Federal Rules of Evidence, the scope of judicial notice covers only adjudicative facts. See Fed. R. Evid. 201(a). A court may take judicial notice, whether requested or not, at any stage in the proceeding. See Fed. R. Evid. 201(c) & (f). A court must take judicial notice “if requested by a party and provided with the necessary information.” Fed. R. Evid. 201(d). Such notice is appropriate only of a fact “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). However, a party is “entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” Fed. R. Evid. 201(e). The party requesting judicial notice has the burden of persuading the trial judge that the fact is appropriate for judicial notice. See Russell, Bankruptcy Evidence Manual, § 201.3 (West 2000 ed.). If a party requests judicial notice of some fact, the party must (1) persuade the court that the particular fact is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to a source “whose accuracy cannot reasonably be questioned”, and (2) must also supply the court with the source material needed to determine whether the request is justified. See id. III. Analysis It has become a commonly-accepted practice to take “judicial notice” of a court’s records. See 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶¶ 201[03] at 201-35 to -40 (1992). The practice is particularly useful in bankruptcy litigation in which individual adversary proceedings and contested matters, each of which is procedurally distinct and has its own record, all occur within, and are affected by, the context of the parent bankruptcy case. See id. It would not be error for a court to “take judicial notice of related proceedings and records in cases before the same court.” MacMillan Bloedel Ltd. v. Flintkote Co., 760 F.2d 580, 587 (5th Cir.1985); Wilson v. Huffman (In re Missionary Baptist Foundation of America), 712 F.2d 206, 211 (5th Cir.1983); State of Florida Bd. of Trustees of Internal Improvement Trust Fund v. Charley Toppino & Sons, Inc., 514 F.2d 700, 704 (5th Cir.1975). However, the taking of “judicial notice of court records” generally has a limited purpose. It is often “merely a way of simplifying the process of authenticating documents which would generally require certification under FRE 901 and 902, and overcoming FRE 1002 best evidence problems.” Russell, Bankruptcy Evidence Manual, § 201.5 (West 2000 ed.). Thus, the fact that documents in the record are genuine does not mean that courts can automatically accept as true the facts contained in such documents because other objections, such as hearsay, may prevent their introduction into evidence. See id. Courts realize that there is a “very crucial distinction between taking judicial notice of the fact that an entity has filed a document in the case, or in a related case, on a given date, i.e., the existence thereof, and the taking of judicial notice of the truth or falsity [of the] contents of any such document for the purpose of making a finding of fact.” In re Earl, 140 B.R. 728, 731 n. 2 (Bankr.N.D.Ind.1992); see also Russell, Bankruptcy Evidence Manual, § 201.5 (West 2000 ed.). This Court is well aware that judicial notice can be taken as to the existence of documents, such as proofs of claim or a debtor’s schedules, without inquiring whether the information contained in them is true. See In re American Solar King Corp., 90 B.R. 808, 829 (Bankr.W.D.Tex.1988). Accordingly, in this case, there is a significant difference between Manix’s request for this Court to take judicial notice of the existence of the fact that James testified in the Pure case, in his capacity as President, and a request for this Court to receive such prior testimony into evidence in this proceeding. The Federal Rules of Evidence 104(a) and 1101(d)(1) make clear that Rule 201 typically does not apply to facts considered by a court when ruling on the admissibility of evidence. See Fed. R. Evid. 104(a) (stating that, when deciding “preliminary questions concerning ... the admissibility of evidence!,] ... [the court] is not bound by the rules of evidence except those with respect to privileges”); Fed. R. Evid. 1101(d)(1) (stating that the Federal Rules of Evidence, except with respect to privileges, are “inapplicable ... [to] the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104.”); see also Invest Almaz v. Temple-Inland Forest Prods. Corp., 243 F.3d 57, 69 (1st Cir.2001) (stating that, “[w]here the judge is taking judicial notice of a fact for the purpose of ruling on the admissibility of evidence, he may do so without regard to Rule 201.”). Thus, though this Court may take judicial notice of the existence of the documents filed in the prior proceeding, this Court does not receive any of those documents into evidence in this case because that involves a separate process of determining the admissibility of evidence. Moreover, courts “do not search outside a record in order to notice documents in another case, even where the same parties are involved, unless the proceedings are put in evidence.” In re Hillard Dev. Corp., 238 B.R. 857, 865 (Bankr.S.D.Fla.1999); see also Funk v. Comm’r of Internal Revenue, 163 F.2d 796 (3d Cir.1947); Paridy v. Caterpillar Tractor Co., 48 F.2d 166 (7th Cir.1931). In a similar proceeding to the case at bar, The Hillard court determined that it would be “ridiculous” to spend the “hundreds of hours it would take to comb through the court files in the various base cases.” Id. Although this Court is required to search this record in this adversarial proceeding when considering this or other motions, that record does not include the record in James’ main bankruptcy case, nor, for that matter, the prior Pure bankruptcy case. See id. In addition, accepting Manix’s contention of which official records should be judicially noticed, such as lengthy deposition transcripts, disclosure and financial statements, plans of reorganization, note receivable ledgers, and schedules, would unintentionally force this Court to consider both relevant and irrelevant testimony, voluminous documents, and figures “without any conceivable relationship to the pending motion” or case at bar. Id. Expanding the record without specifying which particular facts should be noticed would put the parties at risk because, given the voluminous deposition transcripts and other records in the Pure case, the Court “ ‘might well draw inferences from the facts unanticipated by either party’ ” and “could easily undermine the adversary process by usurping the role of counsel.” Id. Consequently, Manix has failed to carry its burden to identify or highlight which particular adjudicative facts, contained within the many documents requested, should be judicially noticed. Furthermore, deposition transcripts or other documents which are not attached to or incorporated into the record on a motion can not be considered. See Maier-Schule GMC, Inc. v. Gen. Motors Corp., 154 F.R.D. 47 (W.D.N.Y.1994). In this case, because the majority of the records to be noticed were not submitted, they can not be considered. In a similar case to the proceeding at bar, the Ninth Circuit affirmed the bankruptcy court’s refusal to take judicial notice of the truth of the contents of the deposition of a debtor’s son taken in connection with another matter in the same case. See In re Blumer, 95 B.R. 143 (9th Cir. BAP 1988) (stating that resorting to judicial notice does not permit the bankruptcy court to accept as true the contents of all documents found within the court’s own records). With the exception of Appendices A-C (items f-h in Manix’s Motion), Manix has failed to supply the Court with the necessary source material needed, namely items a-e and i-j, to determine whether their request is justified. It is not this Court’s function to lay a record for the attorneys involved in this case. See In re Tyrone F. Conner Corp., 140 B.R. 771, 782 (Bankr.E.D.Cal.1992); see also In re Scott, 182 B.R. 31, 32 n. 2 (Bankr.W.D.Ark.1995). In other words, the invocation of Federal Rule of Evidence 201(d) does not reheve a party of the duty to gather, organize, and present evidence to the court. See generally Russell, Bankruptcy Evidence Manual, §§ 201.5-.8 (West 2000 ed.). Thus, although Manix demands that this Court take judicial notice, it has failed to specify the particular adjudicative facts to be noticed and did not supply the necessary information. Judicial notice, while it may cure authentication, does not cure any customary objections involved in the admissibility of evidence, such as relevance, prejudice, or hearsay. Therefore, though this Court may take judicial notice of the existence of the documents requested by Ma-nix to be noticed, the Court does not receive them into evidence because they are still subject to the general evidentiary objections as to their admissibility under the Federal Rules of Evidence.
6049091-6057	McLERAN, Judge: A special court-martial with members found the accused guilty, following mixed pleas, of an unauthorized absence of two hours duration, using provoking words, and two separate assaults. Following sentencing instructions which included a brief explanation of the differences between forfeitures and a fine, the members sentenced the accused to a bad conduct discharge, confinement at hard labor for 78 days, reduction to E-l, and a fine of $1,500. The sentencing instructions contained only the following information relative to forfeitures and a fine: The maximum punishment which you may impose for these offenses is as follows: ____ Forfeiture of two-thirds pay per month for six months; or a fine in an amount not to exceed the total amount of forfeitures that could be adjudged; or a combination of fines and forfeitures, the total amount not to exceed the total amount of forfeitures which could be adjudged____ Forfeiture of pay is a permanent loss of a specified amount of accused’s pay for a certain period of time. It applies to pay becoming due after the convening authority approves your sentence. A fine is a judgment or debt with the United States imposed on an accused which becomes due it [sic] its entirety only after review and approval by all appropriate reviewing authorities and the fine is ordered executed. Forfei tures terminate when the accused is discharged or released from the naval service. A fine does not____ If the accused is reduced to pay grade E-l, the maximum monthly forfeitures would be $447 dollars per month. The military judge also advised the members that the accused had been in pretrial confinement for 78 days and that the convening authority was required to grant administrative credit for that period of pretrial confinement. Neither counsel, when asked, objected to the sentencing instructions. The sentencing worksheet contained provisions for both forfeitures and a fine. Neither counsel argued the appropriateness of a fine. The assignment of error concerns the appropriateness of that portion of the sentence extending to a fine of $1,500 where there is no evidence that the accused was unjustly enriched as a result of the offenses of which he was convicted. Appellate defense counsel argues that the record fails to show good cause for a fine to be imposed and is therefore improper. Rules for Courts-Martial (hereinafter R.C.M.) 1003(b)(3) provides that “[a]ny court-martial may adjudge a fine instead of forfeitures.” The discussion following that rule is the current source of the oft-quoted “rule” that “a fine normally should not be adjudged against a member of the armed forces unless the accused was unjustly enriched....” This limitation has been interpreted as advisory rather than mandatory; consequently, we have set aside fines in the absence of unjust enrichment only when there is also an absence of other good reason for the fine in the specific case. Where other good reason has been found to exist, fines have been upheld as appropriate. The fine and the advisory language of the discussion following R.C.M. 1003(b)(3) has created an anomaly in the court-martial review process, for not only do the normal rules of sentence appropriateness under Uniform Code of Military Justice (hereinafter UCMJ) Article 66(c), 10 U.S.C. § 866(c) apply, but a further requirement is superimposed on appropriateness which suggests the existence of a factor specifically to justify the imposition of the fine. In this case, the amount of the fine is well below the maximum which could have been adjudged. There is no evidence of unjust enrichment. The record is devoid of any verbalized rationale from the military judge, counsel or the members from which we might gain some insight into the thought process which lead to the imposition of the fine. Although such a verbalization is not required, the military judge who instructs on or considers the possibility of a fine, or the counsel who argues for a fine, could help minimize the appellate judicial speculation which currently takes place with some regularity when a fine is adjudged in the absence of clear unjust enrichment by providing some justification on the record. There is no reason to speculate that adjudging the fine rather than a forfeiture was due to ignorance or without reason in this case, however, for the record of trial leads us to the inescapable conclusion that the members knew exactly what they wanted to do and what they wanted to avoid in fashioning an appropriate punishment for this accused. They had been told as part of the sentencing instructions that a fine was a debt to the United States whereas forfeitures terminate upon discharge; they had been instructed that the accused was entitled to a pretrial credit of 78 days against any adjudged confinement; they knew that the amount of the fine could not exceed the maximum amount of forfeitures. With this information they fashioned a sentence which they assumed would result in the accused’s release from active duty and at the same time impose a meaningful monetary punishment — the only way they could accomplish the latter was by imposing a fine which would survive the accused’s anticipated discharge. In this case, we believe that the sentence to a fine was appropriate, especially in light of the military judge’s instructions, given without objection , which never mentioned the concept of unjust enrichment. Considering all of the above, our statutory direction under Article 66(c), UCMJ, and the advisory language in the Discussion following R.C.M. 1003(b)(3), we conclude the imposition of a fine was legal and appropriate. The findings and sentence are correct in law and that no error materially prejudicial to the substantial rights of the accused was committed. Accordingly, the findings of guilty and sentence, as approved on review below, are affirmed. Senior Judge RILEY and Judge MIELCZARSKI concur. . See also, United States v. Olson, 25 M.J. 293, 298 (C.M.A.1987). "[U]njust enrichment is not a legal requirement for a fine....”
3851734-13686	ORDER Mary Halsell claims that she is disabled by arthritis, shoulder problems, collage-nous colitis, and headaches. The Social Security Administration denied her claim for disability benefits at all stages, and a magistrate judge, presiding by consent, upheld the agency’s decision. Halsell appeals, asserting numerous errors by the Administrative Law Judge (“ALJ”). Although the ALJ’s reasoning is imperfect, we conclude that her decision is supported by substantial evidence. I. Background Halsell, a high-school graduate born in 1954, spent 12 years managing fast-food restaurants in Texas. In January 2005 she quit her job and, soon after, moved to Illinois. Halsell applied for disability benefits in March 2005, claiming that she was unable to work because of cellulitis in her throat (which appears to have been treated successfully) as well as pain in her left knee and right shoulder. The record contains no medical evidence that predates her application apart from documents regarding her treatment for cellulitis. After Halsell applied for disability benefits, two state-agency doctors examined her. In April 2005 Dr. Raymond Leung observed that Halsell walked with a slow gait and mild limp, had a limited range of motion in her knees and shoulders, and had trouble getting up from a squat. He further concluded that Halsell was obese, weighing 267 pounds and standing 67 inches tall. But Dr. Leung also determined that Halsell could walk 50 feet unassisted, had no difficulty getting on or off the examination table, had no back spasms, and had normal arm grip and strength. In June 2005 Dr. Sandra Bilin-sky, the other state-agency doctor, examined Halsell and completed an assessment of her residual functional capacity (“RFC”). Dr. Bilinsky concluded that Halsell could stand, sit, and walk for at least 6 hours in an 8-hour workday, and that she could occasionally lift 20 pounds and frequently lift 10 pounds. Dr. Bilin-sky confirmed Dr. Leung’s observations regarding Halsell’s obesity and walking ability and also found that Halsell had a limited ability to climb stairs, balance, stoop, and reach with her arms. In September 2005 Halsell first visited Dr. Michael Kirkpatrick, who would become her primary physician, complaining of neck and joint pain, particularly in her hands and knees. An x-ray of Halsell’s left knee showed some degenerative change including spur formation but no sign of traumatic injury. Films of her, right knee revealed osteoarthritis that was slightly more severe. In October 2005 Dr. Kirkpatrick referred Halsell to Dr. Ronald Wheeler, an orthopedist, to address the pain in her knees and left shoulder. Dr. Wheeler determined that she needed rotator-cuff surgery to treat impingement syndrome and degenerative joint disease in her left shoulder. Following surgery in December 2005, Halsell regularly attended physical therapy for six months. At the end of that period, the therapist concluded that Hal-sell had achieved 75% of her goals and had a good prognosis. He recommended that Halsell continue exercising at home. In July 2006, after her application for benefits had been pending for more than a year, Halsell complained to Dr. Kirkpatrick about pain in her lower back. He examined her and noticed tenderness and some spasticity. An MRI revealed minor degenerative changes between several vertebrae, and Dr. Kirkpatrick diagnosed Halsell with mild central-canal stenosis. In September 2006 Halsell reported that she was unable to walk because of the back pain, so Dr. Kirkpatrick completed a form that Halsell used to apply for a disability parking permit. That form states that Halsell suffers from osteoarthritic back pain which restricts her ability to walk. Dr. Kirkpatrick has prescribed pain medications for Halsell since her first visit. For her preoperative shoulder pain, he prescribed Ultram, which Halsell reported was not strong enough. For her back pain, Dr. Kirkpatrick initially prescribed muscle relaxants, but Halsell said they did not work. By the end of the summer of 2006, Halsell had been prescribed Ultram, Gabapentin, and Amitriptyline combined with over-the-counter Tylenol and anti-in-flammatories as needed. Since applying for benefits, Halsell has complained of two other, unrelated conditions: stomach pain and headaches. In February 2006 she told Dr. Kirkpatrick that she suffered from abdominal pain and diarrhea, so he referred her to Dr. William Birsic, a specialist who performed a colonoscopy and a biopsy. The colonos-copy was normal, but the subsequent biopsy revealed microscopic collagenous colitis. Halsell has had moderate success medicating this condition. Halsell has also expressed discomfort from tension headaches, which she brought to Dr. Kirkpatrick’s attention in January 2006. In response he recommended that she continue with the Ultram and Amitripty-line. After Halsell’s application was denied initially, she requested a hearing, which occurred in June 2007. At the hearing she testified that she quit her job in Texas because of health reasons and then moved to Illinois because her children are here. Halsell went on to testify about the symptoms she was presently experiencing, but she did not describe how her condition had changed since she applied for benefits two years earlier. She explained that the residual effects of her left shoulder surgery and an earlier right shoulder surgery limit her arm strength and range of motion. She added that she experiences tingling in her hands and feet, pain in her back that radiates into her legs, constant dull pain in her left leg, sharp pain in her right leg, and arthritic pain in her neck. Halsell also testified that she suffers from debilitating headaches, constant abdominal pain, and frequent diarrhea. These ailments, Halsell said, limit what she can do on a daily basis. Mostly she stays home watching TV and doing puzzle books. She explained that she cannot drive a car and has difficulty performing simple tasks like putting on her shoes, walking from the couch to the refrigerator, showering, and even holding a newspaper. Halsell testified that she cannot lift more than a gallon of water or raise her arms high enough to shampoo her hair. At her hearing Halsell rated her pain as an 8 of 10, but acknowledged she was taking only Amitriptyline. She explained that she had stopped taking anti-inflamma-tories because they were causing blood clots and that she does not take Tylenol because it keeps her awake. Halsell did not mention taking Ultram for pain, even though Dr. Kirkpatrick’s records suggest that he was still prescribing it. Halsell acknowledged that she never sought surgical treatment for the pain in her knees but did not explain why she had not. After Halsell testified the ALJ heard from a vocational expert (“VE”). The ALJ asked, hypothetically, whether Halsell could return to her past work as a fast-food manager if she can lift 10 to 20 pounds to shoulder level but not higher, can stand or walk for 6 hours in an 8-hour day, and can occasionally climb, balance, stoop, kneel, crouch, and crawl. The VE responded that Halsell could return to her job as a fast-food manager given these parameters. Additionally, the VE opined that Halsell could perform 75% of light, unskilled positions under these conditions, or she could use her food-service management skills in numerous semiskilled sedentary jobs. When the ALJ asked the VE if Halsell could work given the limitations Halsell had described in her testimony, the VE opined that she would be unable to perform any job. The ALJ evaluated Halsell’s claim under the required five-step analysis, 20 C.F.R. §§ 404.1520, 416.920 and concluded that (1) Halsell had not worked since February 2005; (2) the osteoarthritis in her knees and spine as well as the her postoperative shoulder conditions constitute severe impairments but her colitis and headaches do not; (3) these impairments do not collectively meet or equal a listed impairment; (4) Halsell has the RFC to perform light work; and (5) based on this RFC, she is able to perform her previous job or other available jobs and thus is not disabled. The ALJ premised her denial of benefits on an adverse credibility finding regarding “the intensity, persistence and limiting effects” of Halsell’s symptoms. The ALJ thought Halsell was exaggerating her symptoms because she was not on a significant regimen of pain medication, she had not “followed up” with her orthopedist regarding her knees and back, and she continued to participate in a “range of daily activities.” The ALJ further noted that the medical evidence failed to support her testimony regarding the severity and limiting effects of her pain. Additionally, the ALJ commented that Halsell previously lived in Texas but she “quit her job and moved to Illinois to be near her grandchildren.” Finally, the ALJ commented that no doctor had given an opinion that Halsell was disabled and the parking-placard application was irrelevant. II. Analysis On appeal Halsell argues that the ALJ committed four errors: (1) she based her adverse credibility finding on assumptions and incorrect interpretations of the evidence; (2) she failed to consider Halsell’s obesity; (3) she concluded without sufficient evidentiary support that Halsell could return to her prior work; and (4) she gave the VE an improper hypothetical and then relied on his resulting opinion that Halsell could do light or sedentary work. The Appeals Council declined to review the ALJ’s decision, so that decision is the final determination of the Commissioner of Social Security. See Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.2008). We evaluate whether the ALJ’s decision is supported by substantial evidence without deferring to the district court. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Moss v. Astrue, 555 F.3d 556, 560 (7th Cir.2009). Halsell’s first argument concerns the adverse credibility finding. The ALJ concluded that although Halsell’s impairments could produce the symptoms she described, her testimony about the “intensity, persistence, and limiting effects of these symptoms” was not credible. That credibility finding is entitled to “considerable deference,” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir.2006), if a “logical bridge” connects it to the evidence, Terry v. Astrue, 580 F.3d 471, 475 (7th Cir.2009); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.2000). Halsell offers several valid criticisms of the credibility finding, but we conclude that overall it is supported by substantial evidence. First, Halsell says that the ALJ improperly drew a negative inference from the fact that she did not seek treatment from her orthopedist regarding her knees or back and that she was not taking pain medication for her headaches. Halsell’s point has some traction because it is not apparent that the treatment the ALJ expected Halsell to pursue would have resolved her problems and “failure to pursue ineffective treatment ] ... cannot be a sound basis for the ALJ’s adverse credibility finding.” Ribaudo v. Barnhart, 458 F.3d 580, 585 (7th Cir.2006). The ALJ should not have “played doctor” and reached independent medical conclusions about what Halsell should have done to treat these impairments. See Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir.2003); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir.1990). Moreover, the ALJ’s related conclusion that Halsell was not on a pain-medication regimen is simply incorrect because the record shows that Halsell was prescribed medication for long-term pain management and was taking Amitriptyline, which the ALJ assumed was exclusively a sleep aid but failed to recognize is commonly used for pain management. Halsell is also correct to fault the ALJ for misstating that “she quit her job and moved to Illinois to be near her family.” Though this statement may be innocuous in the abstract, it does conflate Halsell’s testimony that she moved to be near her family and her testimony that she quit her job because of health reasons. Given this statement’s placement in the ALJ’s credibility determination, it is not surprising that Halsell believes the ALJ relied on this mischaracterization to question her motivation for quitting her job. Finally, Halsell rightly criticizes the ALJ for concluding that she participates in a range of daily activities. The ALJ did not identify those activities, and the conclusion contradicts much of Halsell’s testimony. Although the ALJ may be correct that Halsell engages in a range of activities, she should have explained why she was disregarding Halsell’s testimony to the contrary. See Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir.2001). But Halsell’s other objections to the credibility finding are without merit. She argues that the ALJ should have given weight to her successful application for a disability parking placard, but the placard proves nothing unless the disability standard is the same. See, e.g., Bass v. McMahon, 499 F.3d 506, 511 (6th Cir.2007) (“[Ojrdering of a disability placard adds nothing to a finding of disability here because there is no evidence that the two have substantially similar requirements....”). Similarly, Halsell assumes that the credibility finding was affected by an incorrect determination that her colonoscopy was normal. Even though the colonoscopy itself was normal, Halsell explains, the biopsy that immediately followed revealed microscopic collagenous colitis. That may be so, but as far as Halsell’s medical records show, her colonitis has been effectively managed and was not a contributing factor to her claim of disability.
7857025-13598	OPINION ORRICK, District Judge. On April 1, 1976, this Court approved a settlement in this class action employment discrimination suit affecting employment practices in the food processing and canning industry in Northern California. The Settlement Agreement and Consent Decree (the Decree), effective June 15, 1976, altered seniority, job bidding, and job-training procedures within the industry and established other mechanisms intended to achieve the basic objective of opening up higher-paying and year-round positions for female and minority group workers. Before the Court is a motion to modify the Decree in several respects, the most important of which is to recognize seniority “according to each employee’s most recent seasonal seniority date”. Also before the Court is a motion to intervene on behalf of eighteen Anglo males. For the reasons hereinafter stated, the motion to modify the Decree is granted effective September 29, 1976, and the motion to intervene is denied. I. Preliminarily, it is appropriate to review the procedural posture of the case. This action was filed December 3, 1973, by the plaintiffs, representing a class of female and minority workers. The action, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981, charged the employers, who own and operate some seventy-four food processing and canning plants in Northern California, and the unions, who represent the employees in said plants, with discriminating against the plaintiffs and the plaintiff class by denying females and minority group members opportunities to obtain higher-paying and year-round positions within the canning industry. In 1974, conciliation negotiations were conducted with the Equal Employment Opportunity Commission (EEOC). These negotiations culminated in an agreement on February 19, 1975, and on June 20, 1975, all parties to the agreement filed it with the Court and requested, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, that notice of the proposed settlement be sent to the settlement class. Several groups of individuals (the Inter-venors), members of the purported class, filed motions to intervene on April 28, 1975, and on June 13, 1975. During the hearings held with respect to the fairness of the agreement over a period of six days the Intervenors were allowed to participate fully. As a result of their participation, the agreement was drastically altered. At the end of the hearings, the Court found the agreement, as altered, to be fair, reasonable, and adequate and certified an industry-wide class consisting of all present, past, future, and potential bargaining unit employees and applicants for employment of member companies of California Processors, Inc. (CPI) who were Blacks, Asian-Americans, Native Americans, Spanish-sur-named Americans, or females. The Court then denied the motions to intervene. The Intervenors filed a notice of appeal which has now been withdrawn. The central feature of the Decree was the introduction of a “plant seniority” system for class members. Under the Decree, all class members could utilize plant seniority, that is, the earlier of the regular or seasonal seniority date, for job bidding purposes, including bidding during the “rack-up” of jobs at the beginning of the processing season. However, the utilization of plant seniority for layoff and other purposes was limited to those class members who had attained a high-bracket job since July 2, 1965, or who attained such a job under the life of the Decree. Based upon their experience in implementing the Decree, the parties to the agreement now move the Court to approve certain modifications of the Decree. II. A. The principal modification of the Decree agreed to by the parties provides that “all employees’ seniority shall be recognized according to each employee’s most recent seasonal seniority date”. This change means that all employees, including nonclass members, would be arranged on a seniority list in order of seasonal seniority. It should be noted that employees become “seasonal” after thirty days and attain “regular” status after 1400 hours of work in a calendar year. Accordingly, employees attain “seasonal” seniority before achieving regular status. The change makes the new seniority available to all employees, be they members of the affected class or not, for purposes of job bidding, layoff and recall, and other rights determined by seniority. Across-the-board plant seniority for all purposes is not new to this litigation. The concept was urged by the Intervenors during the course of the hearings on the fairness and adequacy of the settlement agreement. At that time, the parties to the agreement opposed the idea because it conflicted with a provision of the collective bargaining agreement under which an employee who refused to do available work for which he or she had the seniority and qualifications suffered a complete loss of seniority. Thus, the proponents of the settlement then argued that if plant seniority were granted to class members for all purposes, large numbers of workers who only desired to work during the season would be placed in line for regular jobs continuing after the season and would be forced to accept such employment or lose seniority rights. However, this major impediment to the simplified, across-the-board plant seniority concept has now been removed. Under the change, the union and the company shall institute an industry-wide, standardized, neutral “waive-off” policy. Thus, seasonal workers will be protected from forced seniority loss under the proposed change. During the course of the hearings, it was argued that the implementation of the two-tiered plant seniority system urged by the proponents and approved under the Decree would not be sufficient to afford all class members their “rightful place” in the cannery work force. In particular, it was pointed out that the Decree did not confer the full benefits of plant seniority upon class members who attained a high-bracket job prior to July 2, 1965, or to those class members who never attained a high-bracket position. While recognizing this fact, the Court noted that a settled action may still be approved even if it arguably falls short of achieving for each affected discriminatee his or her “rightful place” in the seniority system. United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 850 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976). Now, however, under the modification of the Decree the affected class is much closer to the achievement of the “rightful place” standard. The proposed seniority modifications significantly improve the relative seniority status of females. Consequently, the seniority status of males, including minority males, may suffer, at least in terms of the assignment of seniority numbers. Overall, minorities as a class will not suffer adverse consequences. B. No specific findings of discrimination have heretofore been made in this case. The propriety of granting affirmative relief, including class-wide seniority adjustments, in the context of a settled employment discrimination suit where there has been no judicial finding or admission of past discrimination, has yet to be definitively resolved. The uncertainty of this difficult legal and troubling social issue was recently noted by Judge Gesell in McAleer v. AT&T, 416 F.Supp. 435 (D.D.C.1976). However, in EEOC v. AT&T, 419 F.Supp. 1022 (E.D.Pa.1976), Judge Higginbotham ruled that a consent decree embodying goals, quotas, timetables, and seniority adjustments to implement an affirmative action program was lawful, notwithstanding the absence of a finding or admission of past discrimination. Judge Higginbotham said that to require such a predicate to an affirmative action program would contravene Congress’ clear intent that Title VII suits should be settled, not litigated. It is not necessary to follow the AT&T case here since the evidence adduced at the hearings provides ample support for a pri-ma facie finding of discrimination sufficient to warrant the seniority adjustments and other affirmative relief in this case. The seniority adjustments, including the modification calling for across-the-board plant seniority are designed to aid those who have been the victims of past discrimination. The propriety of such affirmative relief to redress past discrimination is clear, even in an industry with many temporary employees. Patterson v. Newspaper & Mail Deliveries Union, 514 F.2d 767 (2d Cir. 1975). At the hearings previously conducted in this case, the Court also heard testimony on the effects of the settlement agreement upon nonclass members, including Anglo males. The Ninth Circuit clearly mandates that district courts consider the effects of any seniority adjustments on non-class members in fashioning remedies under Title VII. United States v. Navajo Freight Lines, 525 F.2d 1318 (9th Cir. 1975); Man-dujano v. Basic Vegetable Products, Inc., 541 F.2d 832 (9th Cir. 1976). Based upon the evidence presented, this Court concluded that the settlement did not contravene Navajo Freight by allowing “bumping” of nonclass members. Across-the-board use of “seasonal seniority dates” by all employees is a better accommodation of the competing interests at stake here. The Supreme Court recently reaffirmed that Title VII protects whites as well as minorities, and presumably men as well as women, from discrimination in employment. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1975). However, in McDonald the Court specifically declined to consider whether a remedial preference pursuant to an affirmative action program was unlawful. But, the Court recently made clear that it is proper to award retroactive seniority benefits to the victims of discriminatory employment practices even though such relief may conflict with the expectations of other, arguably innocent, employees. Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). The Court believes that the Decree as modified effectuates the remedial purposes of Title VII while at the same time it avoids the establishment of a seniority system which might put some nonclass members (Anglo males) at an unwarranted disadvantage and, thus, the Decree more fully comports with the requirements of Navajo Freight, Franks, and McDonald. C. The parties also seek modifications concerning the dissemination of information about the Decree to the work force. They propose the publication of certain written materials as well as at least one meeting per plant to explain the Decree. The Court believes that the holding of one mass meeting is not a very effective way to explain the Decree. A series of three to five meetings per plant should be held in addition to the dissemination of written materials. Accordingly, the Court approves the proposed modifications. III. The Decree settling the action filed December 3, 1973, was approved on April 1, 1976, and became effective June 15, 1976. The entry of the Decree and the implementation of the seniority adjustments pursuant thereto are now attacked by eighteen named individuals, purporting to represent a class of bargaining unit employees in the canning industry who at this late date move to intervene. They claim that the implementation of the Decree adversely affects their employment status and unlawfully discriminates against'them on the basis of race, sex, national origin, and color in violation of Title VII. Other violations of various federal labor laws are also alleged. Without specifying whether they wish to enter the lawsuit as plaintiffs or defendants, they seek leave to intervene under Rule 24 of the Federal Rules of Civil Procedure for the purpose of contesting the validity of the Decree. Eight of the applicants are white males, five are minority males, and five are females. The applicants pray for relief from the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Alternatively, they seek a stay of the Decree under Rule 62 of the Federal Rules of Civil Procedure pending appeal. The requisites for intervention under Rule 24(a) indicate that upon timely application, a person should be permitted to intervene as a matter of right when (a) the applicant claims an interest in the subject matter of the action, and (b) he is so situated that the disposition of the action may as a practical matter impair his ability to protect his interest, unless the applicant’s interest is adequately represented by existing parties. As Professor Moore notes, intervention after judgment is unusual. However, it may be granted where it is the only way to protect the intervenor’s rights, e. g., where he is a member of the class in whose behalf the action was originally filed, and would be bound by the judgment, but the party purporting to represent him does not or cannot pursue an appeal. 3B Moore, Federal Practice ¶ 24.13(1) at 24—256 et seq.; Pelligrino v. Nesbit, 203 F.2d 463 (9th Cir. 1953). Intervention after the entry of a consent decree has been permitted in employment discrimination suits to allow those who claim to be adversely affected by the decree to have their say as to the propriety of the relief. United States v. Allegheny-Ludlum Industries, Inc., 63 F.R.D. 1 (N.D.Ala.1974), aff’d 517 F.2d 826 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976); EEOC v. AT&T, 506 F.2d 735 (3d Cir. 1975).
4166026-6029	OPINION PER CURIAM. Pro se appellant David Solan appeals the District Court’s order granting summary judgment to the defendant, Donna Zickefoose, the former warden of the prison where Solan is being held. We have ■jurisdiction under 28 U.S.C. § 1291 and exercise a plenary standard of review. See State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir.2009). For the reasons set forth below, we will summarily affirm the District Court’s order. This case concerns the Trust Fund Limited Inmate Computer System (TRU-LINCS), a Federal Bureau of Prisons (BOP) program designed to, among other things, make a form of e-mail available to prisoners. See Federal Bureau of Prisons, TRULINCS FAQs, http://www.bop.gov/ inmate_programs/trulines_faq.jsp (last visited June 10, 2013). While TRULINCS was made available at all BOP facilities on February 2, 2011, see id., BOP Program Statement 5265.13 permits the warden to “limit or deny the privilege of a particular inmate.” As relevant here, Program Statement 5265.13 provides that “[ijnmates are excluded from electronic messaging when it is determined that their use would threaten the safety, security, or orderly running of the institution or the protection of the public and staff.” As an example, the Program Statement explains that “an inmate with a personal history or special skills or knowledge of using computers/email/Internet or other communication methods as a conduit for committing illegal activities will be excluded.” Id. Warden Zickefoose has barred Solan from using TRULINCS e-mail. In a written statement, Warden Zickefoose justified her decision on two grounds: (1) Solan has significant pre-incarceration computer expertise; and (2) Solan was punished at his previous prison for misusing the computer system to tamper with other inmates’ legal work. After challenging Warden Zicke-foose’s decision, without success, through the administrative system, he filed a complaint in the District Court. He claimed, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), that Warden Zicke-foose violated his rights under the First Amendment, the Due Process Clause, and the Equal Protection Clause by excluding him from the e-mail system, and that the relevant Program Statement violates the Administrative Procedure Act (APA). The District Court concluded that Warden Zickefoose was entitled to qualified immunity on the constitutional claims and granted summary judgment to her on all claims, and Solan appealed to this Court. We will affirm the District Court’s judgment. As to Solaris First Amendment claim, we agree that prisoners maintain a First Amendment “right to communicate with family and friends,” and that e-mail can be a means of exercising this right. Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir.2002). Thus, the critical question is whether the prison’s decision to exclude Solan from using email “is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In making the “reasonableness” inquiry, we consider (1) “whether there is a valid, rational connection between the prison regulation and the legitimate interest put forth to justify it”; (2) “whether inmates have an alternative means of exercising the right”; (3) “the burden on prison resources that would be imposed by accommodating the right”; and (4) “whether there are alternatives to the regulation that fully accommodate the inmate’s rights at de minimis cost to valid penological objectives.” Fontroy v. Beard, 559 F.3d 173, 177-78 (3d Cir.2009) (internal quotation marks omitted). Throughout the analysis, “[w]e afford substantial deference to the DOC’s professional judgment.” Id. (internal quotation marks omitted). Here, as the District Court concluded, Warden Zickefoose has asserted a valid reason for her decision. Solan has both the knowledge (based on his history with computers) and the apparent inclination (based on his previous prison misconduct) to use e-mail for improper purposes, and thus threaten the privacy of other prisoners and jeopardize the security of the prison. Warden Zickefoose’s response directly addresses this danger, while also leaving Solan free to communicate with friends and faipily through the phone, in-person visits, and the regular-mail system. Solan has not offered any meaningful alternatives to this arrangement, and in light of the substantial deference to which the prison’s judgments are entitled, see Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), we discern no error in the District Court’s order granting summary judgment to Warden Zickefoose. Solan fares no better on his due process claim. The protections of the Due Process Clause are triggered only if there is a deprivation of a protected interest in life, liberty, or property. See Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir.2003). We agree with the District Court that Solan has not identified any property or liberty interest implicated by Warden Zickefoose’s refusal to give him access to e-mail. See Beaulieu v. Ludeman, 690 F.3d 1017, 1047 (8th Cir.2012); Valdez, 302 F.3d at 1045. Accordingly, Solan’s procedural-due-process claim necessarily fails. Likewise, we agree with the District Court’s disposition of Solan’s equal protection claim. Solan sought to present a “class of one” claim, which required him to show “that []he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” PG Publ’g Co. v. Aichele, 705 F.3d 91, 114 (3d Cir.2013) (internal quotation marks omitted). Here, Solan has failed to identify any other prisoner who has computer expertise and has been sanctioned for computer misuse while incarcerated who has nevertheless been permitted to use prison e-mail; therefore, the District Court properly granted judgment to Warden Zicke-foose on this claim.
1392581-11907	OPINION REBECCA BEACH SMITH, District Judge. On February 2, 1999, this court heard defendant John Calvin Pitts’s motion to suppress evidence seized during a search of his automobile on September 25, 1998. At the conclusion of the hearing, the court issued its ruling from the bench, denying defendant’s motion. At that time, the court reserved the option to issue a written opinion at a later date. I. Facts At the suppression hearing, the following facts were developed through the testimony of Lieutenant Stan Stout of the James City County police department. On September 25,1998, Stout was a street level investigator assigned to the narcotics division. At approximately 10:30 p.m. that night, Stout received a call from a confidential, reliable informant concerning the defendant, John Calvin Pitts. The informant told Stout that Pitts had been selling crack cocaine that evening in the parking lot of a McDonald’s restaurant in James City County, that Pitts had just left to get more crack, and that Pitts would return to the McDonald’s within the hour. The informant also described the car that Pitts was driving, which description was consistent with Stout’s own, prior knowledge of Pitts’s car. After the phone call, Stout picked up the informant and drove to Pitts’s residence, where Stout did not see Pitts or the car that he was driving that night, a 1986 gold Ford Thunderbird. Stout then drove the informant back to the McDonald’s and called for assistance from a uniformed police officer, Officer Booth. Stout, in an unmarked police unit, and Booth, in a marked police unit, waited in a Stuckey’s restaurant/mart parking lot across the street from the McDonald’s. From their vantage point, they had an unobstructed view of the McDonald’s and a Texaco gas station/minimart located next to the McDonald’s. As they waited, Stout told Booth that they would wait for Pitts to get into the McDonald’s parking lot before stopping Pitts’s vehicle. Stout also informed Booth that Pitts was likely armed with a .32 caliber handgun, which Pitts usually kept in the car’s center console. This information about the handgun was conveyed to Stout by the informant. In addition, Stout also knew that Pitts had a previous conviction for felon in possession of a firearm. At approximately 11:35 p.m., one hour and five minutes after first receiving the phone call from the informant, Stout observed Pitts’s car turn into the Texaco station and park. Pitts went inside the mini-mart and made a purchase that he carried out to his car in a plastic bag. Stout testified that as he exited the store, Pitts looked across the road, directly at Stout and Booth. Pitts then got into his car and prepared to depart the Texaco station. Stout testified that Pitts pulled up to the road and sat there for fifteen to twenty seconds, with no traffic approaching from either direction. During this time, Pitts’s headlights directly illuminated both officers and their vehicles. Stout also testified that Pitts knew Stout from prior law enforcement encounters, and, of course, could see Booth’s marked police ear. Stout testified that Pitts then turned onto the road and rapidly left the vicinity of the McDonald’s and the Texaco. Stout then directed Booth to stop Pitts’s automobile. Booth then pursued Pitts and stopped him, followed closely by Stout. As Stout approached Pitts’s vehicle, Booth ordered Pitts to get out of the car, but he refused to do so. When Stout came up to the driver’s side door, he noticed that Pitts’s car was still in gear and that Pitts had his foot on the brake. Fearing that Pitts would attempt to drive off, Stout told Booth to pull Pitts from the car, if necessary. At that time, Pitts then put the car into park and voluntarily left the vehicle. Stout then had Booth take Pitts to the rear of the vehicle. As Booth was taking Pitts to the rear of the car, Pitts saw Stout about to enter the passenger compartment of the vehicle, and Pitts then turned quickly back toward the driver’s door. At this point, Stout blocked Pitts’s access to the vehicle and directed Booth to handcuff Pitts. As Booth did so, Stout entered the passenger compartment and opened the center console, where Stout found a .32 caliber handgun. Stout also found suspected crack cocaine in the left (driver’s) door pocket. Following the sweep of the passenger compartment, Stout then conducted a “pat down” frisk of Pitts, which uncovered $30 in Pitts’s front pocket and $500 in large denominations in Pitts’s wallet. Pitts was then arrested and charged with various narcotics and firearms violations. II. Analysis Defendant argues that the evidence recovered in the search should be excluded because the police did not have either probable cause to arrest Pitts and conduct a search incident to arrest, or probable cause to search Pitts’s vehicle. Even if there was probable cause, defendant also claims that the warrantless search was not justified because there were no exigent circumstances. Although not pursued vigorously at oral argument, in its brief to the court, the government contended that Stout had probable cause to arrest Pitts and search his car incident to arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). The court cannot agree with this position, however. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court adopted a “totality of the circumstances” test. The Court in Gates emphasized that the “value of corroboration of details of an informant’s tip by independent police work” is important under the totality of the circumstances test. Id. at 241-42, 103 S.Ct. 2317. Under this balancing approach, corroboration of information provided by an informant is generally used to demonstrate the reliability and credibility of information provided by an informant, while, at the same time, alleviating the need to demonstrate the basis for the informant’s knowledge. Id. at 230, 103 S.Ct. 2317. Conversely, the stronger the showing on the informant’s basis of knowledge, the less corroboration is needed in order to demonstrate the credibility of the information. Here, there was no testimony as to the basis for the informant’s knowledge about Pitts. There is no indication that the informant had just bought drugs from Pitts or that the informant was involved in selling drugs with Pitts. There was also no indication that the informant had ever been inside Pitts’s car. Furthermore, although Stout testified to the informant’s reliability on previous occasions, none of the earlier occasions involved Pitts, nor did Stout testify that he knew the informant to have any prior association with Pitts prior to the phone call on September 25, 1998. Therefore, in order to establish the reliability and credibility to a sufficient degree, Stout needed to corroborate the informant’s information. It is apparent to the court that by picking up the informant and going to Pitts’s residence, that Stout was, indeed, attempting to corroborate the informant’s story. Unfortunately, although Pitts did return to the vicinity of the McDonald’s, which Stout admitted was not a known drug-trafficking area, Pitts went, instead, to the Texaco gas station located next to the McDonald’s. Pitts never did return to the McDonald’s parking lot, apparently because he discovered that he was under police surveillance. Although properly suspecting that Pitts was involved in criminal activity, at the time Stout saw Pitts go into the Texaco, which was the first time Stout had seen Pitts that evening, he did not have probable cause to believe that Pitts had committed a crime. Had Pitts left the Texaco and proceeded into the McDonald’s lot, the argument for proba ble cause would be a closer one. Had Stout seen Pitts conduct an apparent drug transaction, then there clearly would have been probable cause, based on the informant’s information and his own observation, for Stout to arrest Pitts. However, without this additional information, Stout did not have probable cause to arrest Pitts based solely on the informant’s statement that Pitts had gone to replenish his drug supply. At oral argument, however, the government pursued a more tenable position. It contended that the stop was justified because there was a reasonable, articulable suspicion that Pitts was involved with criminal activity and the sweep of the passenger compartment was necessary because Stout had a reasonable suspicion that Pitts was armed and presented a danger to officer safety. It is well-settled that the police may conduct an investigatory stop when they have a reasonable suspicion, based on articulable facts, that the person has committed, or is about to commit, a crime. United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Furthermore, the Supreme Court has held that “the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and artic-ulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). The Court in Long also rejected the argument that the search was unreasonable because the suspect was restrained by the officers. Id. at 1051, 103 S.Ct. 3469. The Court reasoned that a defendant may break from police control and retrieve a weapon from the automobile, id. at 1052, 103 S.Ct. 3469, or that there may be occasion for a defendant to get back into his vehicle during the course of the stop or immediately following the stop, at which time the defendant could then pose a danger to police officers. Id. at 1053, 103 S.Ct. 3469. In this ease, Officer Stout had a reasonable and articulable suspicion that Pitts was engaged in criminal activity. He had information from a reliable, confidential informant that Pitts had been selling drugs at the McDonald’s, had left, and was going to be returning “within the hour” to sell more drugs. Officer Stout attempted to verify this information by confirming that Pitts, whom Stout knew to be involved with the drug trade and also knew to be a convicted felon, was not at home. Stout then staked out the vicinity of the McDonald’s by sitting in the parking lot across the road from the McDonald’s with Officer Booth. Stout and Booth also suspected, based on the informant’s report and Stout’s own knowledge of Pitts, that Pitts was likely to be armed with a .32 caliber handgun. Approximately one hour and five minutes after receiving the phone call from the informant, Stout observed Pitts return to the vicinity of the McDonald’s. However, instead of returning to the McDonald’s parking lot, Pitts drove up to the adjoining Texaco station and proceeded to make a purchase of what Pitts believed to be a six pack of beer. After emerging with his purchase, Pitts looked across the road directly at Stout’s location. Pitts then got into his vehicle, and, instead of pulling into the adjoining McDonald’s parking lot, pulled out to the road with his headlights fixed directly on the point where Stout and Booth were located. After approximately fifteen to twenty seconds, Pitts then pulled onto the road and proceeded to depart the area. Stout and Booth had a reasonable suspicion, based on the confidential informant and their own knowledge, that Pitts was involved in criminal activity, together with the probability (as they viewed it at the time) that Pitts had spotted their stakeout and had then changed his plans to return to the McDonald’s lot. Thus, the court finds that the stop of the vehicle was a permissible Terry stop.
4280123-11712	ENTRY AND ORDER GRANTING IN PART DEFENDANT’S MOTION TO ALTER OR AMEND JUDGMENT. (DOC.26). THOMAS M. ROSE, District Judge. Pending before the Court is “Defendant’s Motion to Alter or Amend Judgment Dated 4/3/2012 Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.” Doc. 26. On February 22, 2012, Defendant filed “Defendant’s Motion for Clarification of Conditions of Supervised Release.” Doc. 22. Therein, Defendant requested that the Court modify a condition of his supervised release that restricts where he may reside. The Court originally sentenced Defendant on November 5, 2010, on counts of possession of child pornography and transfer of obscene materials to minors. Doc. 10.Defendant was sentenced to a term of 24 months of imprisonment, followed by 5 years of supervised release. Id. One of the special conditions the Court imposed was that “The defendant’s residence and employment shall be pre-approved by the probation officer and in compliance with state and local law.” Id. at 4, ¶ 2. On November 8, 2011, Defendant’s probation officer declined a request by Defendant to reside at the residence he inhabited at the time of his offense, explaining: It is my interpretation of the state sex offender laws that you cannot reside at this address upon your release because the residence is within 1,000 feet of a school. Your offense began in January 2009, well after both state sex offender laws were passed regarding residency restrictions (July 31, 2003 and July 1, 2007). Doc. 22-1. The Court denied Defendant’s Motion for Clarification of Conditions of Supervised Release, doc. 22, finding the matter not yet ripe for consideration. Doc. 25. On February 22, 2012, Defendant’s motion to Alter or Amend the Judgment asserts that the matter is now ripe. The Court agrees. See United States v. Lee, 502 F.3d 447, 450 (6th Cir.2007) (citing United States v. Wilson, 172 F.3d 50, 1998 WL 939987, at *2 (6th Cir. Dec. 22, 1998)). Government has filed a response, bereft of citations to law precedential or statutory, leaving the Court to brief itself. Defendant has filed a reply, rendering this matter ripe for consideration. Standard A district court has wide discretion when imposing terms of supervised release. See United States v. Carter, 463 F.3d 526, 529 (6th Cir.2006). The Court’s conditions of supervised release must merely be reasonably related to the goals of supervised release. The rationale for providing a term of supervised release is to assist the transition from prison to liberty. Johnson v. United States, 529 U.S. 694, 708-09, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). Supervised release is intended to rehabilitate the defendant, and is not punishment. United States v. Lewis, 498 F.3d 393, 397 (6th Cir.2007). “Even individual fundamental rights safeguarded by the United States Constitution may be denied or limited by judicially exacted special conditions of supervised release, as long as those restrictions are directly related to advancing the individual’s rehabilitation and preventing recidivism.” United States v. May, 568 F.3d 597, 608 (6th Cir.2009) (quoting United States v. Kingsley, 241 F.3d 828, 839 n. 15 (6th Cir.2001)). Thus, “ ‘where a condition of supervised release is reasonably related to the dual goals of probation, the rehabilitation of the defendant and the protection of the public, it must be upheld.’ ” United States v. Lay, 583 F.3d 436, 450 (6th Cir.2009) (quoting United States v. Bortels, 962 F.2d 558, 560 (6th Cir.1992)). See also United States v. Ferguson, 669 F.3d 756, 764 (6th Cir.2012). Finally, as Defendant asserts, the Court does not defer to the interpretations of law of its probation officers. See United States v. Carter, 463 F.3d 526, 529 (6th Cir.2006). Analysis Defendant contends the Constitution of the State of Ohio prohibits the State of Ohio from enforcing a law prohibiting a property owner from residing in his property. Defendant is incorrect. As Defendant asserts, Section I, Article I of the Ohio Constitution provides that “all men are, by nature, free and independent, and have certain inalienable right, among which are ... acquiring, possessing and protecting property.” Defendant asserts that this creates a fundamental right to reside in his property, limiting the power of the Court to restrict where he resides. Doc. 26-1 at 9-10. More precisely, he claims that “In Ohio, the fundamental right to own property extends to include the right to reside within that property.” (Doc. 26-1, at 9). In support of this contention, he selectively quotes the Ohio Court of Appeals for the Second District, “[I]t is not merely the technical ownership of property that enjoys fundamental constitutional protection, but the right of the use and enjoyment of property, which is part of the bundle of ownership rights. In our view, this would clearly include the right to reside in residential property.” Ohio v. Mutter, 171 Ohio App.3d 563, 567, 871 N.E.2d 1264 (Ohio App.2007). The Court notes that Ohio particularly recognizes the role of natural law in determining fundamental rights and interpreting property rights. See Norwood v. Horney, 110 Ohio St.3d 353, ¶ 35, 853 N.E.2d 1115 (Ohio 2006). Natural law, however, has not generally been understood to create property rights. “The division of possessions is not according to the natural law, but rather ... an addition thereto devised by human reason.” Thomas Aquinas, SUMMA THEOLOGICA, II-II, Q66, Reply to Objection 1. See also John Finnis, NATURAL LAW AND NATURAL RIGHTS, 173-74 (1980). Neither did philosophers such as Grotius, Puffendorf or Locke regard property as an unqualified natural right. Bret Boyce, Property as a Natural Right and as a Conventional Right in Constitutional Law, 29 Loy. L.A. Int’l & Comp. L.Rev. 201, 204, 214 (Spring 2007). Thus, while the Ohio Supreme Court directs one to look to natural law to discern property rights, property is not seen as a natural right in the tradition that stretches “from Plato and the Hellenistic philosophers, through Augustine and William of Ockham, all the way to the Enlightenment ... in Rousseau and his followers, and in America, [to] the ... tradition that ... influenced figures such as Franklin and Jefferson.” Boyce, 29 Loy. L.A. Int’l & Comp. L.Rev. at 213-14. Other framers were more pointedly aware of the position of private property in natural law: “Man did not make the earth, and, though he had a natural right to occupy it, he had no right to locate as his property in perpetuity any part of it; neither did the Creator of the earth open a land-office, from whence the first title-deeds should issue.” Thomas Paine, Agrarian Justice, (1797), in THE LIFE AND MAJOR WRITINGS OF THOMAS PAINE 605, at 611 (Philip S. Foner ed., Citadel Press 1974). Property rights, thus, do not exist in natural law, but are a human creation that, at most, accords with natural law. “Modern constitutional discourse, particularly in the United States, has tended to lose sight of these complexities.” Boyce, 29 Loy. L.A. Int’l & Comp. L.Rev. at 204. See, e.g., Parham v. Justices of Decatur Cty. Inferior Court, 9 Ga. 341, 348 (Ga.1851) (Nisbet, J.). Henry v. Dubuque Pacific RR. Co., 10 Iowa 540, 543 (1860) (Wright, J.). Following the Ohio Supreme Court’s prompting to look to natural law for guidance in understanding fundamental rights, the Court does not perceive a fundamental right to utilize property as one desires at natural law. Resolution of Defendant’s claim is aided by an examination of the rights he actually possesses in the property in which he wishes to reside. The Court assumes that Defendant possesses his former residence in fee simple. A fee simple is the “highest right, title and interest that one can have in land. It is the full and absolute estate in all that can be granted.” See Masheter v. Diver, 20 Ohio St.2d 74, 78, 253 N.E.2d 780 (Ohio 1969). Yet, it is still a “fee,” that is, an ownership right derived from the governing authority to whom its use is ultimately owed. “Fee simple” stands “in contradistinction to Allodiumf.]’ ” Black’s Law Dictionary at 741 (Rev. 4th Ed.1968). Allodium is absolute possession. “The fee-simple estate ... was never considered as absolute, as were lands in allodium, but were subject to some superior on condition of rendering ... service, and in which superior the ultimate ownership of the land resided.” In re Waltz, 197 Cal. 263, 267, 240 P. 19, 20 (1925) (citing 1 Cooley’s Blackstone (4th Ed.) p. 512). In Ohio, ownership in fee simple is still “subject ... to the limitations of eminent domain, es-cheat, police power, and taxation.” Muirfield Assn., Inc. v. Franklin Cty. Bd. of Revision, 73 Ohio St.3d 710, 711, 654 N.E.2d 110, 111 (Ohio 1995). These limitations are immense. If the State of Ohio has the power to escheat the entirety of Defendant’s metaphorical bundle of property right sticks, then it may certainly also escheat the individual stick of permission to reside in that property. Alternatively, the State may invoke its police power. The state might reasonably forbid convicted sex offenders from residing in areas that they perceive as creating heightened risks of recidivism to the community. Thus, it is better stated that a fee simple estate “is the highest form of ownership a person can have in real property because it has no restrictions on its use or enjoyment except those restrictions imposed by public policy for the common good.” David A. Thomas, THOMPSON ON REAL PROPERTY § 17.01 at 599 (2 ed.2000). Thus, lower Ohio courts are not willing to extend any of the reasoning of Norwood beyond its narrowest holding. In the same case to which Defendant refers the Court, one Ohio appellate court has opined: we have no difficulty in continuing to view an owner and occupier of residential property as possessing a substantive right to continue to own and occupy that property. That right, venerable though it may be, may be taken away prospectively. Thus, we have no difficulty with the application of R.C. § 2950.031 to a person who commits a sexual offense after the effective date of the statute, just as we would have no difficulty with taking away that person’s liberty, for a statutorily proscribed period of time, after being convicted of the offense. Ohio v. Mutter, 171 Ohio App.3d 563, 568, 871 N.E.2d 1264, 1268-69 (Ohio App.2007). Next, Defendant argues that “no public safety issue requires the restriction,” doc. 26-1 at 6-7, ignoring that the Court’s conditions of supervised release need not be required by public safety, but only reasonably related to the goal of supervised release, rehabilitating the defendant. United States v. Lewis, 498 F.3d 393, 397 (6th Cir.2007). Additionally, Defendant asserts that “no study has found a connection between public safety and residency restrictions placed on sex offenders.” Doc. 26-1 at 7. Again, the Court is not required to substantiate its conditions with social science research, but merely to have them reasonably relate to rehabilitation. The Court finds that requiring someone who has been convicted of possession of child pornography to locate his residence more than 1,000 feet from facilities that serve large numbers of minors is reasonably related to deterring Defendant from recidivism. Defendant also requests that the Court allow the State of Ohio to enforce its prohibition on sex offenders from living within 1,000 feet of a school, so that defendant might obtain from the State “a final, [ jappealable order ... enjoining him from said residence.” Doc. 26-1 at 8. Defendant is afforded the ability to challenge the constitutionality of this restriction, however, as the ruling contained herein is a final appealable order.
968437-8898	'GRAHAM, Presiding Judge. The appellee imported certain projection apparatus and parts thereof, at the port of New York, under the Tariff Act of 1930. These goods were classified for duty by the collector, under the provisions of paragraphs 228 (b) and 397 of section 1 of said act (19 USCA § 1001, pars. 228 (b), 397). The importer protested, a hearing was had before the United States Customs Court, and a judgment was entered by the court sustaining the protest. Thereupon the government attempted to appeal to this court from said judgment. This it did by a timely filing of the following alleged petition, accompanied by an assignment of errors: “Petition for Review .“To.the Honorable the United States Court of Customs and Patent Appeals: “Your petitioner, being dissatisfied with the decision of the United States Customs Court in each of the matters referred to in the annexed schedule A, respectfully prays your court to review the questions involved therein, and for such relief in the premises as to the court shall seem just. The particulars of the errors of law and fact involved in said decision with which your petitioner is dissatisfied are set forth in the annexed assignment of errors. “Dated New York, N. Y., May 12, 1934. “The United States, “By Charles D. Lawrence, “Assistant Attorney General, Attorney for Appellant, 201 Variek Street, New York, N. Y.” The appellee thereupon filed in this court a motion to dismiss said appeal, and the matter comes on now for hearing upon said motion. The grounds for such motion are thus stated in appellee’s motion: “That the Code of Laws of the United States of America, section 310 (Judicial Code, § 198), Title 28 (28 USCA § 310) permits of an appeal on behalf of the Government only by'the collector or Secretary of the Treasury; “That the appeal in this ease was not made by a party authorized by the statute; “That the petition for review does not show that it was filed by a party authorized by the statute; “That the petition for review is not signed by or in behalf of a party authorized by the statute to take the appeal. * * * ” In his reply to appellee’s motion, the Assistant Attorney General sets up a part of the Executive Order of the President, dated June 10, 1933 (No. 6166 [5 USCA § 132 note]), and effective sixty-one days thereafter, which portion of said order is as follows: “Section 5. — Claims by or against the United States “The functions of prosecuting in the courts of the United States claims and demands by, and offenses against, the Government of the United States, and of defending claims and demands against the Government, and of supervising the work of United States attorneys, marshals, and clerks in connection therewith, now exercised by any agency or officer, are transferred to the Department of Justice. “As to any‘case referred to the Department of Justice for prosecution or defense in the courts, the function of decision whether and in what manner to prosecute, or to defend, or to compromise, or to appeal, or to abandon prosecution or defense, now exercised by any agency or officer, is transferred to the Department of Justice.” This executive order, it is averred, was issued in pursuance of the authority given by the Act of Congress approved March 3, 1933 (47 Stat. 1518 [5 USCA § 126]), which purports to authorize the President to regroup, consolidate, transfer, or abolish any executive agency or agencies. The Assistant Attorney General also cites and relies upon T. D. 46601, dated August 26,1933, 64 Treas. Dec. 190, which is as follows: "To Collectors of Customs and Others Concerned : “Attention is invited to section 5, paragraph 2, of the Executive order signed by tbe President on June 10, 1933, effective August 10, 1933, which reads as follows: “As to any case referred to tho Department of Justice for prosecution or defense in the courts, the function of decision whether and in what manner to prosecute, or to defend, or to compromise, or to appeal,-or to abandon prosecution or defense, now exercised by any agency or officer, is transferred to the Department of Justice. “Appeals to the United States Court of Customs and Patent Appeals from the decisions of the United States Customs Court will hereafter be filed in the name of the United States by the Assistant Attorney General, and publication of notices of such appeals will be made as at present in the weekly Treasury Decisions at the end of the section entitled, ‘Abstracts of Other Court Cases,’ under the heading ‘Appeals to United States Court of Customs and Patent Appeals.’ “Dean Aeheson, “Acting Secretary of the Treasury.” No contention is made by tho appellee in tho written motion or in the oral argument by appellee’s counsel that the reorganization statute above cited is invalid or unconstitutional, nor is any contention made that the President might not act thereunder and issue the order which he did promulgate and which is above referred to. The only contentions are, as we understand it, that the right to appeal is one which is vested by law in the collector or Secretary of the Treasury under and by virtue of the provisions of the Tariff Act of August 5, 1909, § 28, subsec. 29, 36 Stat. 107 (now Jud. Code § 198, 28 USCA § 310); the particular portion of said section involved being as follows: “If the importer, owner, consignee, or agent of! any imported merchandise, or the collector or Secretary of the Treasury, shall be dissatisfied with the decision of the Board of General Appraisers as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, or with any other appealable decision of said board, they, or either of them, may, within sixty days next after the entry of such decree or judgment, and not afterwards, apply to tho Court of Customs Appeals for a review of the questions of law and fact involved in such decision. In Alaska and in the insular and other outside possessions of the United States nine-try days shall be allowed for making such application to the Court of Customs Appeals. Such application shall be made by filing in the office of the clerk of said court a concise statement of errors of law and fact complained of. * * * ” Further, that said executive order did not purport to transfer to the Assistant Attorney General said right. To quote, the contention of the appellee is that the “executive order does not assume to authorize the Department of Justice to take an appeal which is not authorized by law,” and that, as the only appeal authorized by law is one by the Secretary of the Treasury or collector, so far as the government is concerned, neither the Secretary of the Treasury nor the President has authorized the Department of Justice to take the appeal in this case. There being no contention as to the validity of the act of Congress authorizing the President to reorganize and transfer departments, it only remains to be seen whether the President has, under authority of this statute, divested the collector and Secretary of the Treasury of the right to appeal on behalf of tho government in customs eases, and has conferred this light upon the Department of Justice. The act (5 USCA § 126) provides that the President, by Executive order, may “(a) Transfer the whole or any part of any executive agency and/or the functions thereof to the jurisdiction and control of any other executive agency.” This language, certainly, was sufficient to authorize the President to transfer the powers theretofore exercised by the collector and Secretary of the Treasury, under the ‘said provisions of the Tariff Act of August 5, 1909, as amended. The said Reorganization Act of March 3, 1933, being a later expression of the legislative intent, when followed by an order of the President made thereunder, must be held to operate as a repeal, pro tanto, of the said provisions of said Tariff Act. No rights were vested in the collector or Secretary of tho Treasury which might not be divested by executive order, when we once concede the validity of the enabling act under which the President acted. The statute recites that tho President may “transfer * * * any part of * * * the functions” of any executive agency, which language obviously includes the functions of the collector and Secretary of tho Treasury. That the right to appeal, under said Tariff Act of August 5, 1909, was such "a function, cannot be doubted. In addition, it is quite evident from the language of the President’s order that he intended to transfer to the Department of Justice the right to appeal from judgments of the United States Customs Court to this court. The language of the order is capable of no othér construction. The order recites: “The functions of * * * defending claims and demands against the Government * * * are transferred to the Department of Justice.”
1783449-19597	FAY, Circuit Judge: Joseph Azar challenges the district court’s refusal to quash a subpoena that it had directed at Azar’s bank, the Union Bank of Florida. The district court issued the subpoena pursuant to 28 U.S.C. § 1782(a) (1982) , in response to a request by the Attorney General and Minister of Legal Affairs in Trinidad and Tobago (“Minister of Legal Affairs”). This appeal presents an issue of first impression— whether section 1782 requires that a proceeding be pending before a federal court may grant judicial assistance to a foreign official. We hold that 28 U.S.C. § 1782 does not impose such a requirement and affirm. I. BACKGROUND On December 31, 1985, the Minister of Legal Affairs of Trinidad and Tobago asked the United States Attorney General to help obtain authenticated copies of the bank records of Joseph Azar. The Minister of Legal Affairs sought the records in connection with a criminal investigation of Trinidad and Tobago nationals involved in violations of the Exchange Control Act. See Ch. 79:50 Laws of Trinidad and Tobago. The Department of Justice moved the district court to issue a subpoena for the records under section 1782. On July 11, 1986, the district court granted the ex parte request for a subpoena of the bank records. Azar immediately sought to quash the subpoena on the grounds that section 1782 requires that a proceeding be pending in the foreign country. After carefully scrutinizing the request, the district court denied the motion to quash. In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 648 F.Supp. 464 (S.D.Fla.1986). This appeal followed. II. HISTORY To aid us in resolving the issues presented by this case, we must first consider the history of section 1782. The Act of March 2, 1855 first authorized federal courts to assist foreign tribunals. This statute granted federal courts the power to compel the testimony of witnesses in order to assist foreign courts. In re Letter Rogatory from the Justice Court, District of Montreal, Canada, 523 F.2d 562, 564 (6th Cir. 1975). The passage of the Act of March 3, 1863, however, soon restricted this first statute. The 1863 Act allowed the United States courts to obtain testimony to assist foreign courts only if such testimony was for use in suits (1) which pertained to the recovery of money or property, (2) which were pending in a foreign country with which the United States was at peace, and (3) in which the government of the foreign country was a party or had an interest. This 1863 statute, with its limitations, remained relatively unchanged until 1948. Beginning in 1948, Congress enacted several amendments that broadened the scope of the statute. The 1948 amendment deleted the requirement that the foreign government be a parly or have an interest in the suit. Congress also changed the limitation that the “suit [be] for the recovery of money or property” and eventually only required that the action be a “judicial proceeding.” See Act of May 24, 1949, ch. 139, § 93, 63 Stat. 103. During this time, however, Congress retained the requirement that the judicial proceeding be pending in a foreign country with which the United States was at peace. In 1964, Congress enacted the most recent amendments to section 1782. These modifications marked a significant departure from Congress’ cautious approach to international judicial assistance. Letter Rogatory from Montreal, Canada, 523 F.2d at 565. Congress adopted, without objection, a set of proposals submitted by the Commission on International Rules of Judicial Procedure which revised section 1782. The legislative history shows that the purpose behind the proposals was to encourage other nations to follow the lead of the United States and to adjust their procedures in order to improve practices of international cooperation in litigation. These amendments broadened section 1782’s ability to provide assistance in several ways. First, while the previous incarnations of section 1782 only allowed a district court to assist in the taking of depositions and testimony, the 1964 changes enabled federal courts to assist in obtaining documents and other tangible evidence. Second, to permit district courts to assist in proceedings before foreign investigating magistrates and administrative decision-makers, Congress only required that the evidence be for use in a “foreign tribunal” rather than for use in a “court.” Third, the 1964 amendments allowed, for the first time, an “interested person” as well as a foreign tribunal to request judicial assistance. The legislative history stated that an “interested person” can be a “person designated by or under a foreign law, or a party to the foreign or international litigation.” 1964 tLS.Code Cong. & Admin.News at 3789. Hans Smit, the reporter to the Commission that drafted the proposals which Congress adopted, stated that the term “interested person” included foreign officials as well as actual litigants. Smit, supra note 5, at 1027. Finally, Congress replaced the requirement that the assistance must be for use in “any judicial proceeding pending in any court in a foreign country” with the requirement that the assistance be used “in a proceeding in a foreign or international tribunal.” This change dropped the word “pending” from the statute. In sum, the history of section 1782 reflects a congressional desire to increase the power of district courts to respond to requests for international assistance. In re Letters Rogatory from the Tokyo District, Tokyo, Japan, 539 F.2d 1216, 1218 (9th Cir.1976). The purpose of the 1964 amendments was to broaden prior law and permit federal courts to assist bodies of a quasi-judicial or administrative nature and foreign investigating magistrates. Through these amendments, Congress reaffirmed the inherent authority of the United States courts to grant international judicial assistance. See 1964 U.S.Code Cong. & Admin. News at 3785. By taking the initiative in foreign cooperation, Congress also attempted to stimulate reciprocity. John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 135 (3rd Cir.1985). Finally, Congress left the district court with the discretion to decide whether to honor requests for assistance. Letters Rogatory from Tokyo, Japan, 539 F.2d at 1219. III. ANALYSIS Since Congress has given the district courts broad discretion in granting judicial assistance to foreign countries, we may overturn a district court’s grant of such assistance only if it is an abuse of discretion. See In Re Request for Judicial Assistance from the Seoul District Criminal Court, Seoul, Korea, 555 F.2d 720, 724 (9th Cir.1977); see also United States v. Silverman, 745 F.2d 1386, 1397 (11th Cir. 1984) (district court must have abused its discretion to reverse an order sustaining a subpoena). Azar’s principal contention is that section 1782 removes the district court’s discretion to grant Trinidad and Tobago’s Minister of Legal Affairs any assistance because section 1782 still requires that a proceeding currently be pending. Azar contends that the legislative history supports his view. A. The Pending Requirement Azar concedes that the 1964 amendments eliminated the word “pending” and broadened the ability of the district court to grant assistance. When the legislature deletes certain language as it amends a statute, it generally indicates an intent to change the meaning of the statute. United States v. Canadian Vinyl Industries, 555 F.2d 806, 810, 64 CCPA 97 (1977); 1A Singer, Sutherland Statutory Construction, § 22.01 (4th Ed.1984). Indeed, when words of plain meaning are excised, the deletion of such language “almost compels the opposite result.” Chertkof v. United States, 676 F.2d 984, 987 (4th Cir.1982). We believe that Congress’ elimination of the word “pending” almost compels us to conclude the “opposite result” — that a pending proceeding is not absolutely necessary. We will not treat Congress’ deletion of the word “pending” as a mistake or mere accident. Our belief is supported by Hans Smit who wrote, “It is not necessary, however, for the proceeding to be pending at the time the evidence is sought, but only that the evidence is eventually used in such a proceeding.” Smit, supra note 5, at 1027. The result of one Ninth Circuit case indicates that a pending proceeding is not always necessary to a grant of assistance. In Letters Rogatory from Tokyo, Japan, 539 F.2d 1216, the Tokyo District Prosecutor’s Office asked the Tokyo District Court to request the assistance of a United States court in obtaining depositions for use “in criminal investigations and possible future criminal trials in Japan.” Id. at 1217 (emphasis added). The Ninth Circuit overlooked the lack of any pending criminal proceeding and decided that, since the request was not “ ‘unrelated’ to ‘judicial or quasi-judicial controversies,’ ” it had to affirm the federal district court’s grant of assistance. Id. at 1219. This decision demonstrates that the determination to grant assistance turns not on whether the proceeding is pending but on whether the requested evidence will likely be of use in a judicial proceeding. Azar, however, points to the use of the term “litigant” in the legislative history to argue that Congress only meant to provide assistance to an “interested person” who is presently involved in a pending proceeding. See 1964 U.S.Code Cong. & Admin.News at 3788. This reliance is misplaced. First, the only requirement specifically mentioned in the legislative history is that the assistance must be “in connection with” a proceeding. Id. Second, we believe that Congress did not use the word “litigant” to encompass all types of “interested persons,” but used the word as a common example of an “interested person.” An “interested person,” as stated earlier, can also be a foreign official. While a private individual may need to be a litigant in a pending proceeding in order to be an “interested person,” a foreign official properly designated under foreign law may fall within the definition of “interested person” even when a proceeding is not pending at the time of the request. Therefore, the word “litigant” in the legislative history does not restrict a request for assistance from a foreign official to “pending” proceedings. B. Abuse of Discretion In this case it is clear that the district court did not abuse its discretion. First, the district court properly concluded that the Minister of Legal Affairs was an interested person as contemplated by the statute. Under the law of Trinidad and Tobago, the Minister of Legal Affairs is legally responsible for the enforcement of the Exchange Control Laws. Because he has this legal responsibility, the Minister of Legal Affairs is an “interested person” under section 1782. Second, the evidence is “for use in a proceeding” as required by section 1782. When the Minister of Legal Affairs requested the assistance, he set forth the documents he desired, the information he expected to find, and the reason he would use the documents in the eventual proceeding. The district court noted that the Minister of Legal Affairs had requested the production of the documents in a particular form to ensure their admissibility in the future criminal proceeding. Also, the Minister of Legal Affairs had offered to pay certain bank personnel to travel to Trinidad and Tobago and testify concerning the authenticity of the records. All of this suggests that a proceeding is imminent. On the other hand, Azar has provided no evidence suggesting that the Minister of Legal Affairs is seeking the records for some reason other than “for use in a proceeding.” Therefore, the district court could reasonably conclude that the records would be used in a criminal trial. Finally, the records sought are discoverable under the laws of Trinidad and Tobago. While a district court generally should not decide whether the requested evidence will be admissible in the foreign court, see John Deere, 754 F.2d at 136, the district court must decide whether the evidence would be discoverable in the foreign country before granting assistance. See id.; In re Court of the Commissioner of Patents for the Republic of South Africa, 88 F.R.D. 75, 77 (E.D.Pa.1980). In this case, the Central Bank of Trinidad and Tobago has the authority to request the bank records of any customer’s account when it suspects violations of the Exchange Control Laws. The Minister of Legal Affairs works closely with the Central Bank and could have obtained the records through the Central Bank if Azar's bank was within the Central Bank’s jurisdiction. Azar has not indicated any privilege recognized under Trinidad and Tobago laws that would forbid the discovery of his bank records. IV. CONCLUSION Congress has given the district courts a great responsibility to determine whether to grant judicial assistance in foreign litigation. To prevent abuse, the district judge should carefully examine and give thoughtful deliberation to any request for assistance submitted by an “interested person” before a judicial proceeding has begun. The district judge should satisfy himself that a proceeding is very likely to occur. If the judge doubts that a proceeding is forthcoming, or suspects that the request is a “fishing expedition” or a vehicle for harassment, the district court should deny the request. In this case the district court concluded that a proceeding was probable and properly assisted the Minister of Legal Affairs by ordering the production of the bank records. AFFIRMED. .Section 1782(a) reads as follows: The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.... A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege, (emphasis added). . Section 2 of the Act reads: And be it further enacted, That where letters rogatory shall have be [sic] addressed, from any court of a foreign country to any circuit court of the United States, and a United States commissioner designated by said circuit court to make the examination of witnesses in said letters mentioned, said commissioner shall be empowered to compel the witnesses to appear and depose in the same manner as to appear and testify in court. Act of March 2, 1855, ch. 140, § 2, 10 Stat. 630. . Section 1 of this Act states: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the testimony of any witness residing within the United States, to be used in any suit for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party or shall have an interest, may be obtained, to be used in such suit. If a commission or letters rogatory to take such testimony shall have been issued from the court in which said suit is pending, on producing the same before the district judge of any district where said witness resides or shall be found, and on due proof being made to such judge that the testimony of any witness is material to the party desiring the same, such judge shall issue a summons to such witness requiring him to appear before the officer or commissioner named in such commission or letters rogato-ry, to testify in such suit.... Act of March 3, 1863, ch. 95, § 1, 12 Stat. 769-70. .The applicable section of the 1948 Act declares: The deposition of any witness residing within the United States to be used in any civil action pending in any court in a foreign country with which the United States is at peace may be taken before a person authorized to administer oaths designated by the district court of any district where the witness resides or may be found.... Act of June 25, 1948, ch. 646, § 1782, 62 Stat. 949. . S.Rep. No. 1580, 88th Cong., 2d Sess. 1, reprinted in 1964 U.S.Code Cong. & Admin.News 3782 [hereinafter 1964 U.S.Code Cong. & Admin.News]; Smit, International Litigation Under the United States Code, 65 Colum.L.Rev. 1015, 1017 (1965). Congress had created the Commission to study and evaluate those provisions of the federal code that related to international judicial assistance. The Commission’s goal was to revise the law to provide “[w]ide judicial assistance ... on a wholly unilateral basis." Letter Rogatory from Montreal, Canada, 523 F.2d at 565 (quoting Amram, New Developments in International Judicial Assistance in the United States of America, 32 J.B. Ass'n of D.C. 24, 28 (1965)). . See Letter from Rep. Oscar Cox, Chairman of Commission on International Rules of Judicial Procedure, to John McCormack, Speaker of the House, (May 28, 1963), reprinted in 1964 U.S. Code Cong. & Admin.News at 3792-94. . The legislative history explains why Congress switched from the word "court” to "tribunal.” A rather large number of requests for assistance emanate from investigating magistrates. The word "tribunal” is used to make it clear that assistance is not confined to proceedings before conventional courts. For example, it is intended that the court have discretion to grant assistance when proceedings are pending before investigating magistrates in foreign countries. In view of the constant growth of administrative and quasi-judicial proceedings all over the world, the necessity for obtaining evidence in the United States may be as impelling in proceedings before a foreign administrative tribunal or quasi-judicial agency as in proceedings before a conventional court. Subsection (a) therefore provides the possibility of U.S. judicial assistance in connection with all such proceedings. 1964 U.S.Code Cong. & Admin.News at 3788 (citations omitted). . The 1964 amendments also eliminated the requirement that the assistance be rendered to a court in a "foreign country with which the United States is at peace.” The legislative history states that, if the United States is at war, the peace requirement is unnecessary since the Trading With the Enemy Act, 50 U.S.C.App. §§ 1-44 (1982), would forbid any assistance to the enemy. 1964 U.S.Code Cong. & Admin. News at 3789. The legislative history also suggests that if relations are strained between the United States and the foreign country then the district court is to exercise its discretion by "tak[ing] into account the nature and attitudes of the country from which the request emanates and the character of the proceedings in that country." 1964 U.S.Code Cong. & Admin.News at 3788. . A request for assistance from an international tribunal will normally occur only when the tribunal is considering a proceeding before it. Consequently, when discussing requests emanating from international tribunals, the legislative history uses the phrases "pending before investigating magistrates” and "proceedings before” administrative tribunals. 1964 U.S.Code Cong. & Admin.News at 3788 (quoted supra note 7). These phrases do not indicate, however, that a proceeding must be pending in order for a district court to grant a request for assistance from an "interested person" such as a foreign official.
4144092-13035	OPINION OF THE COURT STAPLETON, Circuit Judge: This appeal arises out of appellee and cross-appellant Melissa Brown’s- lawsuit against appellant and cross-appellee Nutrition Management Services Co. (“NMS”) and two of its employees alleging violations of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.Stat.Ann. § 951 et seq. Brown’s claims were tried to a jury twice. After the second trial, the District Court entered judgment in favor of Brown against NMS and subsequently entered orders awarding Brown back pay, liquidated damages, and attorney’s fees, but denying her motion for front pay. NMS appeals several of the Court’s orders, and Brown cross-appeals the orders denying her motion for front pay and reducing the amount of attorney’s fees she requested. Because we write only for the benefit of the parties, we assume familiarity with the facts of this civil action and the proceedings in the District Court. We will affirm in part, reverse in part, and remand for further proceedings. I. Factual Background The basic facts of this appeal are undisputed. In 2002, Brown began working as the food service director at Plymouth House, a nursing home. After Plymouth House was purchased by a new owner in 2004, NMS was hired to provide food service there. In August 2004, Brown was hired by NMS to continue working in her position at Plymouth House. Around that time, Brown informed several NMS employees that she was pregnant and would need time off from work to give birth to her child. Approximately two months later, Brown met with her supervisor, Karen Zywalewski, and NMS’s Human Resources Manager, Scott Murray. NMS terminated Brown at that meeting. Brown filed a complaint in the Eastern District of Pennsylvania alleging that NMS, Zywalewski, Murray, and New Courtland Elder Services interfered with her right to take leave in violation of the FMLA, discriminated against her on the basis of her pregnancy and sex in violation of Title VII, and discriminated against her on the basis of her pregnancy and sex in violation of the PHRA. A jury trial on the FMLA and Title VII claims commenced in January of 2008. At the conclusion of the trial, the jury returned a verdict, finding NMS and Zywa-lewski liable for violating the FMLA, but not Title VII, and awarding Brown $275,000 in compensatoiy and punitive damages, but no back or front pay. The District Court entered judgment in favor of Brown in the amount of $1 against NMS and Zywalewski and then sua sponte ordered a new trial. The second jury found defendant NMS hable for violating the FMLA, but found no liability under Title VII, and found no liability on the part of Zywalewski or Murray. The jury awarded Brown $74,000 in back pay and omitted any award for front pay. The Court then awarded Brown liquidated damages, attorney’s fees, and costs, but denied Brown’s motion for front pay. NMS filed a timely notice of appeal, and Brown cross-appealed. On appeal, NMS argues that the Court erred by: 1) granting judgment in favor of Brown after the first trial and ordering a new trial sua sponte, 2) failing to charge the jury with an instruction explaining NMS’s affirmative defense to the FMLA claim and failing to include a question about the affirmative defense in the jury interrogatory, 8) awarding liquidated damages to Brown, and 4) awarding attorney’s fees to Brown. In her cross-appeal, Brown contends that the District Court erred by refusing to award front pay to her and reducing the amount of attorney’s fees she requested. II. Ordering A New Trial First, NMS argues that the District Court erred by sua sponte ordering a new trial after the jury returned its verdict in the first trial. Rule 59(d) permits a trial court to order a new trial “for any reason that would justify granting one on a party’s motion.” Fed.R.Civ.P. 59(d). A new trial may be granted “when the verdict is contrary to the great weight of the evidence; that is where a miscarriage of justice would result if the verdict were to stand” or when the court believes the verdict results from jury confusion. Pryer v. C.O. 3 Slavic, 251 F.3d 448, 453 (3d Cir. 2001) (internal quotations and citations omitted) (miscarriage of justice); Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1538 (5th Cir.1984) (jury confusion). We review a district court’s decision to grant a new trial for abuse of discretion. William A. Graham Co. v. Haughey, 568 F.3d 425, 437 (3d Cir.2009). As discussed above, the jury found NMS and Zywalewski liable under the FMLA, but not under Title VII. In response to specific questions on the verdict form, the jury awarded Brown “$0” damages for back pay, and “$0” in front pay, but awarded her $50,000 in compensatory damages for “past and future pain, suffering, or emotional distress” and $225,000 in punitive damages — damages that the parties agreed were not recoverable under the FMLA. See 29 U.S.C. § 2617. In response to this verdict, the District Court entered judgment in favor of Brown in the amount of $1.00 and then sua sponte ordered a new trial. The Court explained that it ordered a new trial because: “1) manifest injustice would result if the verdict were allowed to stand; 2) there was apparent jury confusion; 3) the jury form was flawed; and 4) the verdict was inconsistent.” [A 91] During a hearing on the subsequent motion to reconsider, the District Court gave a further explanation, stating, “I believe the verdict was against the weight of the evidence ... I feel that, as a result of how I crafted the interrogatories, inadvertently there was juror confusion that resulted in manifest injustice or universal injustice.... ” [SA 41] We conclude that the District Court did not err by ordering a new trial. Instead, the Court acted within its considerable discretion when it ordered the new trial after concluding that the verdict resulted from confusion because the jury instructions and the verdict form may have misled the jury into believing that compensatory and punitive damages were recoverable under the FMLA. Furthermore, the Court did not abuse its discretion when it determined that manifest injustice would result if the verdict were allowed to stand because the jury verdict was against the weight of the evidence. Importantly, the jury found liability under the FMLA, but awarded no recoverable damages under the FMLA even though the evidence established that Brown was unemployed for several months and then took a lesser paying position after she was terminated from her position at Plymouth House. Because of this evidence, Brown was entitled to back pay if the jury found, as it did, that NMS and Zywalewski violated the FMLA by terminating her. For both of these reasons, the District Court did not abuse its discretion by ordering a new tidal; III. Failing to Charge on the Affirmative Defense Next, NMS claims that the District Court abused its discretion when it refused to instruct the jury on the affirmative defense to FMLA liability. NMS correctly argues that it was entitled to this instruction, as we have recognized that there is an affirmative defense to an interference claim under the FMLA. See Samowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir.2007) (“[Plaintiff] will not prevail on his interference claim if [his employer] can establish that it terminated [him] for a reason unrelated to his intention to exercise his rights under the FMLA.”); see also 29 U.S.C. § 2614(a)(3)(B). Thus, NMS was entitled to an instruction that informed the jury that it could not find NMS liable on the FMLA interference claim if NMS proved that it would not have continued to employ Brown regardless of her request for FMLA leave. We review the jury instructions for abuse of discretion, evaluating “whether, taken as a whole, the instruction properly apprised the jury of the issues and the applicable law.” See Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir.2009). “We will not vacate a judgment if the errors in the charge are harmless.” Armstrong v. Burdette Tomlin Mem’l Hasp., 438 F.3d 240, 245-46 (3d CL.2006). Likewise, a district court’s formulation of jury interrogatories is reviewed for abuse of discretion. Id. at 246. “The only limitation [on this discretion] is that the questions asked of the jury be adequate to determine the factual issues essential to the judgment.” Id. (internal quotations omitted). During the charge on FMLA liability, the Court instructed the jury that NMS could legally terminate Brown, as long as it did not interfere with her FMLA leave by terminating her because she was pregnant. The Court repeatedly admonished the jury that it should not question NMS’s “business judgment.” Moreover, at some points during the charge, the Court appeared to place the burden on Brown to prove that NMS fired her because of the pregnancy, instead of requiring NMS to prove that it would have fired her regardless of her request for leave related to her pregnancy. After a careful review of these instructions, we conclude that, although the District Court erred by refusing to give an instruction on the affirmative defense, the charge properly informed the jury of the applicable law. Because NMS did not suffer any prejudice as a result of these instructions, the error was harmless. See Armstrong, 438 F.3d at 246 (“Harmless errors in parts of a jury charge that do not prejudice the complaining party are not sufficient grounds on which to vacate a judgment and order a new trial.”). We also find no abuse of discretion in the District Court’s decision not to include a question about the affirmative defense in the jury interrogatory. The jury was informed that it could not find NMS liable under the FMLA unless it found Brown was terminated because of her pregnancy. Thus, a positive answer to Interrogatory No. 2, which asked whether Brown proved by a preponderance of the evidence that NMS interfered with her rights under the FMLA, resolved any question as to whether the jury believed NMS had terminated Brown for her poor performance. Accordingly, the questions asked were “adequate to determine the factual issues essential to the judgment.” See id. IV. Liquidated Damages Third, NMS claims that the Court erred by awarding liquidated damages to Brown. Section 2617 of the FMLA directs that “any employer who violates' section 2615 of this title shall be liable” to the employee for damages, including “an additional amount as liquidated damages equal to the sum [of monetary damages and interest on those damages].” 29 U.S.C. § 2617(a)(1)(A)(iii) (emphasis added). However, an employer may avoid paying such damages “if [it] ... proves to the satisfaction of the court that the act or omission which violated section 2615 was in good faith and that the employer had reasonable grounds for believing that the act or omission” was not a violation of that section. Id. In such a case, the court has discretion to award only monetary damages and interest. See id. Thus, we review a decision to grant liquidated damages under the abuse of discretion standard. See Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 908 (3d Cir.1991) (addressing liquidated damages claim under the Fair Labor Standards Act); see also 29 U.S.C. § 2617(a)(l)(A)(iii) (stating that the decision not to award liquidated damages is within “the discretion of the court”); Chandler v. Specialty Tires of Am., Inc., 283 F.3d 818, 827 (6th Cir.2002) (reviewing determination of liquidated damages under the FMLA according to the standard applicable to FLSA claims because “the remedial provisions of the FMLA mirror those of the [FLSA]”). The District Court determined that NMS did not meet its burden of proving that it terminated Brown in good faith or that it had reasonable grounds for believing it did not violate the FMLA, and we find no error in its analysis. The Court based its decision in part on its observation that the “witnesses involved in Brown’s termination offered conflicting testimony ... regarding [NMS’s] decision and justification for terminating Brown.” [A 99] The Court also concluded that NMS did not have reasonable grounds for believing it was not violating the FMLA because it failed to take any affirmative steps to determine whether Brown was an eligible employee under the FMLA. Accordingly, thé District Court did not abuse its discretion by awarding liquidated damages to Brown. V. Attorney’s Fees Lastly, NMS contends that the District Court erred when it awarded attorney’s fees to Brown, arguing that the lodestar amount should have been reduced because Brown’s attorney’s time records were vague and insufficient and because of Brown’s lack of success in the civil action. We review a district court’s award of attorney’s fees under the abuse of discretion standard. In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 256 (3d Cir.2009).
1213551-21337	DECISION ON MOTION OF EAGLEPICHER INDUSTRIES, INC. RE THERMA-TRU CORP. BURTON PERLMAN, Bankruptcy Judge. Reorganized debtor Eagle-Picher Industries, Inc. has filed a Motion for Order Enforcing the Plan and the Confirmation Order to Stay Actions of Therma-Tru Corporation (the “Motion”). (We will hereafter refer to the Reorganized debtor Eagle-Picher Industries, Inc. as “EPI”. Its predecessor, the debtor-in-possession during the pendency of the bankruptcy case, we will refer to as “the debtor”). Therma-Tru Corporation, in January, 1997 had filed suit against Pease Industries, Inc. in the U.S. District Court for the Eastern District of Michigan (“Michigan-suit”) for patent infringement. On May 29, 1997, Therma-Tru moved in that suit to add EPI as a defendant. Therma-Tru is suing Pease for infringement of its patent for fiberglass skins, and seeks to add (and now evidently has added) EPI to the litigation as a defendant as the supplier of the skins. In its papers on this Motion, Therma-Tru indicates that it is proceeding against EPI separately with regard to acts which occurred pre-petition, pre-confirmation date, and post-confirmation date, asserting that the infringing acts of EPI or the debtor extended throughout those periods. In support of the Motion, EPI appended several exhibits. It attached a copy of the page from bankruptcy Schedule A-3 showing that Therma-Tru was scheduled as a creditor in its bankruptcy. In addition, it attached the affidavit of David E. Troller to which several exhibits were attached, including a proof of claim form filed by Therma-Tru in the bankruptcy case of EPI, and a copy of an amended claim replacing the individual proof of claim form filed by Therma-Tru. EPI included as well a copy of the Order on Confirmation of Plan entered in the bankruptcy case. EPI also attached the affidavit of Robert N. Kent, a vice-president of a division of EPI. Finally, EPI attached as an exhibit a copy of Therma-Tru’s Motion for Leave to Amend the Complaint to Join Eagle-Picher Industries, Inc. as Defendant in the Michigan suit. In opposition to the Motion, Therma-Tru filed with its memorandum an excerpt from the deposition of David Lennox, a representative of the debtor. In addition, Therma-Tru offered the affidavits of David D. Haddix, an officer of Therma-Tru, and also an affidavit of Janie W. McFarlin, an attorney with a law firm representing a group of potentially responsible parties (“PRP”) (this is CERCLA terminology) with regard to a Diaz refinery site in Arkansas. Therma-Tru was a member of the PRP committee. Exhibits A and B are- attached to the McFarlin affidavit. Exhibit A consists of copies of letters from the debtor addressed to several members of the PRP committee requesting a corrected address. Exhibit B is a copy of a letter received by Ms. McFarlin from David E. Troller of the debtor. With the responsive memorandum filed by EPI, it included a supplemental affidavit of David E. Troller. After .submission of the memoranda of the parties, a hearing was held on the Motion. At the time of that hearing, the court heard arguments on a parallel motion brought by EPI against Caradon Doors and Windows, Inc., which had filed suit against EPI in the U.S. District Court in Georgia. We have now issued a decision and judgment in regard to the Caradon motion. The jurisdictional considerations which we found applicable on that motion apply here as well, and we therefore quote that portion of our Caradon decision: We hold that we have jurisdiction to determine whether Caradon has violated the injunction of § 524 and § 1141 of the Bankruptcy Code, the Plan and/or the Confirmation Order, hereafter referred to collectively as “the confirmation injunction.” We do not, however, have jurisdiction to consider the merits of Caradon’s claims if they are free thereof. If there is no violation of the confirmation injunction, Plan or Confirmation Order, Caradon may pursue its claims in the Georgia suit. (We will in the present decision use the phrase “the confirmation injunction” with the same content as in the quotation.) Thus, we will not consider the merits of Therma-Tru’s claim. If Therma-Tru is not barred by the confirmation injunction it can pursue the Michigan suit against EPI. The outcome for Therma-Tru, at least in part, must be different from that we reached for Caradon. Therma-Tru’s Michigan suit alleges infringing acts by EPI post-confirmation date of debtor’s reorganization plan. It is well established that each sale of an infringing item is a separate and distinct act of infringement of a patent. Curtis Mfg. Co., Inc. v. Plasti-Clip Corp., 933 F.Supp. 107, 114 (D.N.H.1995). Consequently, the Motion of EPI must fail with regard to staying Therma-Tru from seeking relief for post-confirmation date acts. As we indicated earlier, however, Therma-Tru in the Michigan suit also seeks relief on account of alleged pre-petition acts and preconfirmation acts of the debtor. We therefore must separately consider whether the Michigan suit against EPI, insofar as these acts are concerned, is barred by the confirmation injunction. EPI says that Therma-Tru is precluded from seeking relief by reason of any allegedly infringing acts which occurred pre-petition or pre-confirmation date by reason of the confirmation injunction, and there is no reason why the confirmation injunction should not be applied here with respect to pre-confirmation claims. EPI says that Therma-Tru had formal notice of the pendency of the Chapter 11 cases and the general claims bar date, but failed to file a claim in the bankruptcy case. In addition, EPI says that Therma-Tru was adequately informed of debtor’s confirmation hearing by notice by publication. In support of these assertions, it relies upon the Troller affidavits. The Troller affidavits testify that notice of the bankruptcy and claims bar date were sent to Therma-Tru, a scheduled creditor. In addition, the first Troller affidavit includes a proof of claim form filed in debtor’s bankruptcy in which Therma-Tru is the claimant. Further, EPI says, and it is not denied, that notice by publication of the hearing on confirmation of the plan was published in the Wall Street Journal and the New York Times. Therma-Tru vigorously disputes EPI’s assertion that Therma-Tru received notice of debtor’s bankruptcy. Therma-Tru says that the Haddix affidavit evidences that it never received such notice. It responds to the evidence offered by EPI of a Therma-Tru proof of claim in the bankruptcy, by asserting that it did not file such a proof of claim. In opposition to the Motion, Therma-Tru argues, and offers evidence to support the fact, that it had no knowledge of the allegedly infringing sales to Pease. In its memorandum, it says: “Therma-Tru’s claims arising out of the Pease Sales must be distinguished from Therma-Tru’s claims against Peachtree Doors, Inc., now known as Caradon Doors and Windows, Inc. (“Caradon”).” In opposing the motion of EPI, Therma-Tru asserts (1) that it cannot be bound by the confirmation injunction because it had no notice of any proceedings on the plan; (2) that it is not bound by the confirmation injunction because it knew nothing of the sales by debtor to Pease; and (3) that it has an administrative expense claim which is provided for in debtor’s plan. We have paid close attention to the evidentiary offerings of the respective parties on the present Motion and now reach conclusions based upon that review. This is not a motion for summary judgment governed by F.R.C.P. 56 which would require that where there is a genuine issue of material fact, the motion must be denied. Rather is this a motion seeking enforcement of the injunction which arises following confirmation of a Chapter 11 plan, and we decide it based on the evidentiary record presented by the parties. Even if this were a Rule 56 motion, we would hold that there is no genuine issue of fact. Neither party has requested an evidentiary hearing on the issues presented. 1. Lack of Notice. A. As to Pre-petition Claim. We find as a fact that notice of the bankruptcy and the claims bar date was given by debtor to Therma-Tru. The Troller affidavit establishes that a proof of claim form was sent to Therma-Tru on August 8, 1991, but returned as undeliverable on August 21, 1991. A second mailing was sent to Therma-Tru on September 5, 1991, to 1684 Woodlands Drive, Suite 150, Maumee, Ohio, 43537-4019. Therma-Tru has not denied that this was a correct address. Establishment of a mailing raises a presumption that the mailing was received. In re Eagle-Picher Industries, Inc., 175 B.R. 943, 945-46 (Bankr.S.D.Ohio 1994). The assertions by Haddix in his affidavit cannot avoid that conclusion. His affidavit is dated June 27, 1997, and it can surprise no one that a search at that time for documents sent in 1991 was unproductive. The Haddix statement that this establishes that such notice was never received cannot be given credence. We hold that actual notice of the bankruptcy and bar date were given by debtor to Therma-Tru. There is another basis for holding that Therma-Tru had actual notice of the bankruptcy. Attached to the Troller affidavit is a proof of claim form filed on behalf of Therma-Tru by its counsel regarding a certain superfund site. With respect to this evidence, Haddix responds: Neither I nor any other person who had the appropriate responsibility within Therma-Tru had any knowledge of the proofs of claim described in the Troller Affidavit that were filed on behalf of the Diaz Refinery PRP Group by the law firm of Chisenhall, Nestrud & Julian, P.A. Therma-Tru retained separate legal counsel to represent it in connection with Diaz Refinery matters. At no time was Chisenhall, Nestrud & Julian, P.A. in any way authorized to act on behalf of Therma-Tru Corporation in its individual capacity for any matter whatsoever. This somewhat confusing statement by Haddix cannot disprove that a proof of claim form was filed by an agent of Therma-Tru in debtor’s bankruptcy case. The proof of claim as submitted includes the following statement: “The undersigned ... Chisenhall, Nestrud & Julian ... Little Rock, Arkansas, 72201 ... is the agent of, and is authorized to make this proof of claim on behalf of the claimant.” The named claimant is Therma-Tru Corporation. There is no assertion in Therma-Tru’s evidence that this statement is untrue. The knowledge of its agent requires that we impute to Therma-Tru knowledge of debtor’s bankruptcy. Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 457 (6th Cir.1982). By reason of the foregoing findings, we hold that Therma-Tru, having actual notice of debtor’s bankruptcy, is barred by the claims bar date by which time it filed no claim, from pursuing any pre-petition claim. B. As to Pre-petition and Pre-Confirmation Claims. Therma-Tru argues that it cannot be precluded from asserting any pre-confirmation claims because it was not given notice of the confirmation hearing. We find two facts from the record before us which relate to this argument. The first is that no formal written notice was given by the debtor to Therma-Tru of the confirmation hearing. The second is that notice by publication was given by debtor of the confirmation hearing in the Wall Street Journal and the New York Times. In its briefing, EPI asserts that Therma-Tru was not a “known” creditor at the time of the confirmation of its plan. It is well established that known creditors are entitled to actual written notice, while for unknown creditors notice by publication will generally suffice. Chemetron Corp. v. Jones, 72 F.3d 341, 346 (3rd Cir.1995); Sheftelman v. Standard Metals Corp., 839 F.2d 1383, 1386 (10th Cir.1987), cert. dismissed 488 U.S. 881, 109 S.Ct. 201, 102 L.Ed.2d 171 (1988). In the case before us, there is no dispute that Therma-Tru was not given actual written notice of the confirmation hearing. The question then becomes, on the facts of this case, was Therma-Tru bound by the terms of the confirmation order notwithstanding the absence of such notice. We hold that it was. We reach this conclusion on two alternative bases which follow from the facts before us. The first basis is that Therma-Tru has abandoned any right it may have had to assert a pre-filing or pre-confirmation claim. True, it was listed as a creditor, and was initially treated as a creditor by the debtor which listed it in its bankruptcy schedules. That is, it was given notice of the bar date for filing pre-petition claims. While a prepetition claim may have existed (it was scheduled as disputed, contingent, unliquidated), Therma-Tru filed no claim. Nor did it during the bankruptcy file suit for infringe ment of its patent against debtor though it knew of debtor’s allegedly infringing acts throughout that period. This we hold to be an abandonment of its pre-confirmation claim by Therma-Tru. In re Chicago, Rock Island and Pacific R.R. Co., 788 F.2d 1280, 1288 (7th Cir.1986); In re Charter Co., 125 B.R. 650, 655 (M.D.Fla.1991). We hold that Therma-Tru is bound by the confirmation injunction on another basis as well. That basis is that Therma-Tru, with respect to any post-petition claim, was an unknown creditor as that term is used in bankruptcy parlance. After all, a “known creditor” is one that a debtor reasonably can expect to assert a claim. Here, as the facts recited above make clear, the debtor was affirmatively led to believe that Therma-Tru did not intend to assert a claim. Apart from its inaction with regard to any pre-petition claim, Therma-Tru failed to file any claim for an administrative expense during the pendency of the bankruptcy, though the preconfirmation claim it pursues in the Michigan suit existed throughout the bankruptcy. We hold therefore that the pre-confirmation claim now asserted by Therma-Tru was of the character of claims which “although they could be discovered upon investigation, do not in due course of business come to knowledge [of the debtor].” Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 317, 70 S.Ct. 652, 659, 94 L.Ed. 865 (1950), cited with approval in Chemetron Corp. v. Jones, supra, at p. 346. Therma-Tru in its briefing resists the impact of these decisions, and asserts that the cases it cites, City of New York v. New York, New Haven and Hartford R.R. Co., 344 U.S. 293, 296, 73 S.Ct. 299, 301, 97 L.Ed. 333 (1953) and In re Maya Construction Co., 78 F.3d 1395, 1398 (9th Cir.1996), require that it have received actual notice of the confirmation hearing before it can be said that the requirements of due process have been satisfied. Therma-Tru’s reliance on these authorities is misplaced. Therma-Tru’s cases can be distinguished on their facts. In the City of New York case, the lower courts had held that claims could be barred by a bar date by which creditors had been notified only by publication. The Supreme Court held that actual formal notice to known creditors of the bar date for the filing of claims was required before creditors lost their rights to file claims. In the situation before us, the question dealt by the court in City of New York is not present, for here the creditor was given actual formal notice of the bankruptcy and of the claims bar date. Therma-Tru seeks to extend the holding of City of New York to its situation, where it was not given actual formal notice of the confirmation hearing. Cases not cited by Therma-Tru, from the Tenth Circuit, also might be taken to support this proposition. Reliable Electric Co., Inc. v. Olson Construction Co., 726 F.2d 620 (10th Cir.1984); In re Unioil, 948 F.2d 678 (10th Cir.1991). In coming to grips with these cases, it is essential to recognize separate events in the life of a Chapter 11 bankruptcy case. An early event is notice of the bankruptcy which is given to scheduled creditors. Such notice is sent either simultaneously with notice of a bar date for filing claims, or the bar date notice may be sent somewhat later though ordinarily early in the case. The last event in a Chapter 11 bankruptcy case is the confirmation hearing, an event which occurs later, after the debtor has been given an opportunity to develop a plan of reorganization. Creditors are then given notice of the confirmation hearing. In Reliable Electric and in Unioil, the complaining creditors did not receive actual formal notice either of the bar date for filing claims, or of confirmation, though they had actual knowledge of the bankruptcy. Those cases are distinguishable from the case now before us, because here Therma-Tru was given actual formal notice of the bar date, and it took no action; it filed no claim. The distinction to which we have referred above, between the Reliable Electric and Unioil cases on the one hand, and the case before us on the other, is recognized in In re Trans World Airlines, Inc., 96 F.3d 687, 690 (3rd Cir.1996), for that court distinguished Reliable Electric from its decision holding that pre-petition claims would not be recognized though no notice of the confirmation hearing had been given, where Reliable Electric did not consider that notice of the bar date and failure to act by that date might bar the claim. See In re Trans World Air lines, supra, at p. 690, footnote 1. Consistent with this reasoning is In re Christopher, 28 F.3d 512 (5th Cir.1994), (Fifth Circuit holds that a post-petition creditor, with knowledge of the pendency of a Chapter 11 case is precluded from pursuing a state court action based on post-petition acts of the debtor, though the claimant did not receive actual notice of the confirmation hearing — due process satisfied where the claimant had actual notice of the pendency of the bankruptcy at the time when its claims arose). 2. The Pease Sales. In addition to its argument that the confirmation injunction should not apply as to pre-confirmation claims in the Michigan suit on account of lack of notice of the bankruptcy, the bar date and the confirmation hearing, Therma-Tru advances another argument. Therma-Tru says that it was unaware of sales by debtor to Pease until after debtor’s plan of reorganization was con-, firmed, and therefore the confirmation injunction should not bar the Michigan suit. This is a due process argument, that Therma-Tru’s Michigan suit should not be subject to the confirmation injunction because Therma-Tru did not know of the sales to Pease by the debtor prior to confirmation. We will for purposes of the present motion accept the factual position advanced by Therma-Tru, that it had no knowledge of the Pease sales prior to confirmation. In view of the attendant facts, however, this argument cannot shield Therma-Tru from the confirmation injunction which bars pre-petition and pre-confirmation claims. The debtor was a supplier of fiberglass skins since at least as early as 1989, and this was known to Therma-Tru. Indeed, in its motion to add EPI as a party in the Michigan suit, Therma-Tru stated: Having been served in the Peachtree suit, there is no doubt that Eagle-Picher had notice in 1989, that Therma-Tru accused it of infringing the same patent asserted against Pease in this case. That Therma-Tru had no knowledge of debt- or’s Pease sales was because Therma-Tru deliberately shut its eyes as to allegedly infringing acts by the debtor other than sales to Caradon. Therma-Tru could have filed a claim in debtor’s bankruptcy case, because it in fact had a pre-filing claim against the debtor and was notified of the bankruptcy and of the bar date. Had it done so, it could have pursued discovery in' the bankruptcy court with regard-to all allegedly infringing acts by the debtor. Further, debtor was originally a named defendant in the Peachtree (Caradon) suit, but was dismissed for lack of venue. After the debtor was dismissed from the Caradon litigation, Therma-Tru could have filed suit against it in a proper venue. In a deposition which Therma-Tru has placed in the record here, Therma-Tru calls attention to the testimony of one of debtor’s employees at that deposition. He was asked whether the debt- or sold fiberglass skins to anyone other than Caradon, but the witness was instructed by his attorney not to answer the question. While Therma-Tru characterizes this as “concealment” on the part of the debtor as to the identity of other customers, the direction by counsel could have been for any number of procedural reasons. Therma-Tru could have filed a suit against the debtor in the proper venue at that time, and it could have pressed that question in such litigation. It chose not to do that. Because Therma-Tru’s lack of knowledge was the result of its own choice, we hold that it cannot avoid the impact of the confirmation injunction. As in In re Messics, 159 B.R. 803 (Bankr.N.D.Ohio, 1993) a creditor cannot escape the effect of a discharge where it is a scheduled creditor but takes no steps to protect itself prior to the bar date. See also In re Texaco, Inc., 182 B.R. 937, 951-53 (Bankr. S.D.N.Y.1995). We hold that Therma-Tru cannot avoid the confirmation injunction with respect to pre-petition and pre-confirmation allegedly infringing acts by the debtor which are the subject of the Michigan suit. The public policy arguments with regard to the confirmation injunction are well stated in In re Bowen, 89 B.R. 800, 804 (Bankr.D.Minn.1988)
771335-20056	OPINION WIESE, Judge. This case is before the court on defendant’s motion to dismiss for lack of jurisdiction and, alternatively, on the parties’ cross-motions for summary judgment. The issue is whether plaintiff, a Miller Act surety, is entitled to invoke the doctrine of equitable subrogation to recover from the Government the amount of contract proceeds that were paid over to plaintiffs insured (the contractor) after (i) the Government was made aware of plaintiffs competing interest in those funds, and (ii) the contract had been completed to the Government’s satisfaction. Judgment is for the plaintiff. FACTS Plaintiff, Transamerica Premier Insurance Company, was surety to a contract executed on September 30, 1988 between the Department of Air Force (the Department) and Concrete Development Corporation (CDC). The Department hired CDC to repair Arnold Avenue at Bolling Air Force Base in Washington, D.C. Pursuant to the Miller Act, 40 U.S.C. §§ 270a-270d (1988 & Supp. IV1992), plaintiff posted both a performance and a payment bond in favor of CDC, the principal obligor. On March 12, 1991, plaintiff wrote the Department advising that it had received notice of claims from subcontractors and suppliers (for convenience, we shall call them “materialmen”) in excess of $90,000. In this letter, plaintiff also asserted a right to the remaining contract funds and asked the Department to protect these funds for the sake of the materialmen. At the behest of plaintiff and with CDC’s acquiescence, the Department issued a unilateral contract modification, “P00007”, on April 10, 1991, changing the mailing address for the remaining contract payments from CDC’s office to that of the plaintiff. The Department issued this modification under the authority of FAR. § 43.103(b) (1991). Pursuant to P00007, on April 19, 1991, the Department sent plaintiff a check payable to CDC for $79,407.30. This check represented one of two final payments due on the contract to CDC. CDC completed the contract to the Department’s satisfaction sometime in April 1991. On May 6, 1991, plaintiff sent the contracting officer a second letter stating that it had received notice of claims from materialmen in excess of $125,000. Plaintiff again asserted a right to the remaining contract proceeds and further demanded that these proceeds be forwarded to its office. In reply, the contracting officer wrote plaintiff on May 14,1991, assuring it that the final contract payment, $35,376.56, would, in fact, be transmitted to Transamerica pursuant to P00007. However, on June 14, 1991, due to an administrative error, this final contract payment was forwarded instead to CDC. On the first of August, 1991, the Department acknowledged in a telephone conference with plaintiff that it had made a mistake in directing the final payment to CDC. Plaintiff thereupon wrote the contracting officer on August 7,1991, demanding that a new check be issued in its name. The Department ultimately refused this request; however, it did attempt, though not with any success, to recover the misdirected payment from CDC. On December 20, 1991, plaintiff issued a check payable to one of CDC’s materialmen, Genstar Stone Products Company, in the amount of $113,788.72. On December 8, 1992, plaintiff filed suit in this court seeking judgment in the amount of the final contract payment, $35,376.56, together with interest and attorneys’ fees. DISCUSSION Defendant’s Motion To Dismiss Defendant has moved to dismiss this action, arguing that the court lacks jurisdiction. We reject the argument. A surety’s traditional means for gaining access to this court is through the equitable doctrine of subrogation. Balboa Ins. Co. v. United States, 775 F.2d 1158, 1161 (Fed.Cir.1985). Generally, that doctrine allows a party that has satisfied another’s debt to step into the shoes of the one whose claim has been paid. “One who rests on subrogation stands in the place of one whose claim he had paid, as if the payment giving rise to the subrogation had not been made.” United States v. Munsey Trust Co., 332 U.S. 234, 242, 67 S.Ct. 1599, 1603, 91 L.Ed. 2022 (1947). As noted in the Restatement (Third) of Suretyship § 23 cmt. a (Tent.Draft No. 2, April 1993), subrogation is often referred to as “an equitable assignment” or “an assignment by operation of law.” A surety can establish a right of subrogation in either of two ways: by completing the contract pursuant to its obligation under the performance bond or by paying off materialmen’s claims brought under the payment bond. In the first situation — where the surety completes the contract — it steps into the shoes of the Government. Dependable Ins. Co. v. United States, 846 F.2d 65, 67 (Fed.Cir.1988). When paying off material-men however, the surety is subrogated not only to the rights of the materialmen to retained contract funds, but also to the right of the Government to use retained contract funds to pay materialmen, and the right of the contractor to these funds in the event he has paid his materialmen. Pearlman v. Reliance Ins. Co., 371 U.S. 132,141, 83 S.Ct. 232, 237, 9 L.Ed.2d 190 (1962). Hence, a surety that has paid materialmen’s claims can come directly against the Government as the holder of retained contract funds. In this case, plaintiff rests its claim to recovery on the fact of its payment to one of CDC’s materialmen, Genstar Stone Products Company. Specifically, in its complaint, plaintiff alleged that “[a]fter application of the one check received from the United States, Transamerica has still suffered a loss of $35,376.56 plus its expenses and attorney’s fees incurred by reason of its execution of the Bonds.” Defendant, in seeking the dismissal of plaintiffs suit for lack of jurisdiction, initially raised the contention that this allegation left in doubt whether Trans-america had, in fact, made payment under its payment bond. Hence, from defendant’s standpoint, Transamerica failed to state facts sufficient to validate its right to proceed in this court pursuant to the doctrine of subro-gation. Accordingly, the motion to dismiss was filed. To remedy this alleged “defect” in its pleading, plaintiff filed the affidavit of Thomas Pettygrove, a bond claims specialist employed by Transamerica and the individual having personal knowledge and responsibility with respect to claims originating under the bond posted for the Arnold Avenue project. Mr. Pettygrove’s affidavit recites that “as a result of Transamerica’s contractual bond obligations, Transamerica was required to pay Genstar the amount of its claim totalling $113,788.72.” Accompanying the affidavit are copies of the bond agreements between plaintiff and CDC, the check that was issued to Genstar by Transamerica and, finally, the “release and assignment of claim” signed by Genstar’s president, acknowledging that company’s receipt of payment from Transamerica in the amount of $113,788.72 in discharge of a claim “for materials and supplies furnished on and in behalf of Concrete Development Corp.” on the Arnold Avenue project. Notwithstanding this documentary support of plaintiffs claim, defendant insists that the matter remains ripe for dismissal on jurisdictional grounds. Specifically, defendant contends that, under Rule 56(f), an affidavit offered in support of a motion for summary judgment must be accompanied by sworn or certified copies of all papers or parts thereof referred to in the affidavit. Since Mr. Pettygrove stated in his affidavit that he “reviewed the books and records of Transamerica,” defendant maintains that copies of these materials must accompany the affidavit. And lacking these materials, the argument goes, the affidavit is incomplete and cannot be relied upon to establish Transamerica’s payment to Genstar. The argument lacks substance. For one thing, the affidavit makes clear that the primary source of Mr. Pettygrove’s information was not the company’s books and records but, rather, the affiant’s own “personal knowledge of claims and expenses incurred by Transamerica for contractual.obligations payable to claimants on various bonds executed by Transamerica,” including the matter in issue here. Hence, the supplementary information defendant now insists upon could do no more than repeat — though in a format less helpful than the affidavit itself — the substance of those transactions that originated in the first instance with Mr. Pettygrove in his capacity as bond specialist. To put it another way, the books and records could say no more than the affidavit now does for both owe their recitals to the same source. Moreover, to the extent defendant means to seek independent corroboration of the facts recited in the Pettygrove affidavit, it is hard to understand what better proof Transamerica could have offered than that which it did provide: copies of (i) the bond issued in favor of CDC, (ii) the check issued in favor of CDC’s unpaid supplier, Genstar, and (in) the signed acknowledgment by Gens-tar of its receipt of claim payment from Transamerica. If these materials cannot suffice to establish the fact of payment, then none ever will. The court holds that this information, together with the background facts set out in the Pettygrove affidavit, are plainly sufficient to establish that Transamerica has paid out under its payment bond. To the same effect see Continental Casualty Co. v. American Sec. Corp., 443 F.2d 649, 650-51 (D.C.Cir.1970), cert, denied sub nom. Mather Constr. Co. v. Continental Casualty Co., 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971). Accordingly, the motion to dismiss for lack of jurisdiction is denied. Defendant’s Cross-Motion For Summary Judgment Defendant contends that even if the jurisdictional issue should be decided against it, nevertheless the merits of the dispute must be decided in its favor. Defendant offers a number of arguments in support of its position. Chief among these is the contention that the Government’s duty to safeguard contract funds for the surety’s benefit can arise only after the surety has informed the Government of the contractor’s default. Only such notice as informs the Government of the contractor’s actual default in the payment of materialmen is said to trigger the Government’s responsibility to withhold payment of contract proceeds to the contractor. Defendant points to language in Transamerica’s letters which indicates that plaintiff was “investigating” the validity of the materialmen’s claims and argues that because the letters speak at most of a possible default, the Government’s equitable duty to guard against a contractor’s misuse of contract proceeds was not raised. The court does not agree with this contention. Under suretyship law, contract funds in the hands of the obligee are viewed as security or “collateral” to which the surety can turn to cover any losses that may be incurred should the principal obligor (the contractor) default on the underlying obligation and the surety be required to pay out under its bond. Home Indem. Co. v. United States, 180 Ct.Cl. 173, 177, 376 F.2d 890, 893 (1967) (“[T]he contract retainage is a security held by the Government for the protection of itself and the surety____”). As holder of the contract funds, suretyship law requires the Government to use “reasonable care in the custody and preservation of collateral in its possession.” Restatement (Third) of Surety-ship § 38 emt. e (Tent.Draft No. 2, April, 1993). Thus, the Government, although not in privity with the surety, does have an obligation, consistent with its own business needs, to avoid actions that impair the surety’s interest in the contract collateral, i.e., the contract proceeds on hand payable for work done. And that obligation is triggered not only when the Government is informed of the contractor’s actual default but also — and perhaps more typically — when the Government receives reasonable warning from the surety of a contractor’s threatened default under the bond. A case in point is Newark Ins. Co. v. United States, 144 Ct.Cl. 655, 169 F.Supp. 955 (1959). There the surety had received reports that various laborers and material-men were not being paid. This information was passed on to the Government by the surety along with a request that the Government make no further payments to the contractor pending an investigation of the matter. Although the Government initially indicated that it would refrain from making any further payments, it nevertheless went ahead and paid the contractor for completed work. As matters turned out, although the contractor had indeed completed the work for which the payment was given, it had not fully paid the laborers and materialmen for their performance. Plaintiff was thus called upon to make payment under its bond and it thereafter brought suit against the Government to recover the sums paid out. The Government defended the action by claiming that a surety could have recourse against the Government only where the Government was still in possession of contract funds. Having paid out the funds due under the contract, the Government contended that it was without liability in the matter. The argument was rejected. Said the court: Surely a stakeholder, caught in the middle between two competing claimants, cannot, in effect, decide the merits of their claims by the mere physical act of delivering the stake to one of them. If his position as stakeholder becomes uncomfortable, and the claimants do not take steps to get a judicial solution of the question, the law has provided him with an interpleader proceeding by which he can deposit the stake in court and walk out free of the annoyance of being in the middle. If it is made to appear that the Government’s officials, after due notice of the facts giving rise to an equitable right in the plaintiff surety company, and of the plaintiff’s assertion of such a right, paid out, without a valid réason for so doing, the money in question to someone other than the plaintiff, the plaintiff will be entitled to a judgment. 144 Ct.Cl. at 658-59, 169 F.Supp. at 957. The Newark decision stands for the proposition that where the Government has on hand contract funds owing for work done and is alerted, by the surety, to the possibility of unpaid materialmen’s claims, and to the surety’s demand that the contract funds be protected pending investigation, it may not dispense those funds to the contractor — at least not without running the distinct risk of having to pay twice. The rule is one this court has long adhered to. For other cases on point see Great Am. Ins. Co. v. United States, 203 Ct.Cl. 592, 596-99, 492 F.2d 821, 825 (1974) (contracting officer’s demand for proof of surety’s payment to materialmen before agreeing to withhold contract funds deemed improper because the Government became a stakeholder of those funds upon receipt of the surety’s timely notice that materialmen were making claims against the bond and of the surety’s demand for protection of those funds); Home Indem. Co. v. United States, 180 Ct.Cl. 173, 178, 376 F.2d 890, 893 (1967) (Government became stakeholder when it was in receipt of surety’s second letter, sent after completion of the contract, advising that two suppliers had made bond claims and asking the Government to retain any remaining funds pending settlement of the unpaid job expenses); American Fidelity Fire Ins. Co. v. United States, 206 Ct.Cl. 570, 578-79, 513 F.2d 1375, 1380 (1975) (surety’s letter implying imminent default of contractor and asserting the surety’s rights to remaining contract funds triggered the Government’s stakeholder duty upon receipt before disbursement of final contract funds); and International Fidelity Ins. Co. v. United States, 25 Cl.Ct. 469, 477 (1992) (Government held to stakeholder duty where surety sent post-contract letter informing Government of claims received from subcontractors and demanding withholding of remaining contract funds). Defendant attempts to overcome the force of these cases by arguing that the principle they assert has been supplanted by a more rigorous standard set out in Fireman’s Fund Ins. Co. v. United States, 909 F.2d 495 (Fed. Cir.1990). As defendant reads it, that case adopts the rule that only notice of a contractor’s actual default can trigger the Government’s duty to safeguard contract proceeds for the benefit of the surety. Defendant reads too much into the Fireman’s Fund opinion. The principal issue in the case was whether a surety, acting many months after the fact, could attack the Government’s release of contract retainages as an improvident disbursement of contract funds. The surety’s contention was that the Government should have recognized, at the time of its release of the contract retainages, the likelihood of the contractor’s default because of then-current complaints of late payment and nonpayment from subcontractors and suppliers. The court of appeals rejected this argument. The court held that it was only notice from a surety that counted; not information the Government might glean from other sources. In explaining this result, the appellate court made the statement defendant now presses upon us: “the government as obligee owes no equitable duty to a surety like Fireman’s Fund unless the surety notifies the government that the principal has defaulted under the bond.” 909 F.2d at 498. Defendant’s view is that the quoted statement defines the rule of law applicable to all subrogation actions, i.e., that no duty is owed the surety by the Government save where the Government has been informed by the surety of the contractor’s actual default. We do not agree with this reading. We think it clear from the problem raised in the case that the quoted statement was intended to address the specific facts before the court rather than to proclaim a rule of universal application that would displace, without comment or discussion, the principles adhered to in earlier cases. “It cannot be assumed that the Court would overturn so impressive an array of long standing precedents or depart from a position so firmly established without expressing its intention so to do and the reasons therefor in plain and explicit terms.” Penn Mut Life Ins. Co. v. Slade, 47 F.Supp. 219, 222 (E.D.Ky.1942). Moving on to the next argument, defendant contends that even if Transamerica’s letters are considered sufficient to have alerb-ed the Government to the need for caution in its disposition of contract proceeds, nevertheless the Government’s status as a stakeholder does not require that it do more than act with reasonable discretion in the payment of those proceeds. And that obligation, it asserts, was satisfied here. In support of the argument, we are referred to Balboa Ins. Co. v. United States, 775 F.2d 1158 (Fed.Cir.1985), a case in which the court of appeals enumerated eight factors to be considered in testing the reasonableness of the Government’s response to a surety’s entreaty for protection against the misapplication of contract funds by a contractor. It is pointed out that plaintiff has not addressed these factors in its brief. Rather, defendant notes, Transamerica seeks to establish liability simply by relying on the Department’s mistake in issuing a check directly to CDC. That mistake alone, defendant contends, is not enough to render the Government liable as a stakeholder under the standards enumerated in Balboa. The argument is far off the mark. In Balboa the surety had demanded the withholding of contractor progress payments. Nevertheless, the Government disbursed one of the progress payments to the contractor. The Federal Circuit laid out eight factors by which to test the reasonableness of the Government’s conduct when the Government still retained an interest in the contract funds, i.e., before the completion of the contract. Defendant argues that these factors apply to the instant matter — a matter which is indisputably about the Government’s conduct after completion of the contract — and it asks that we find the Department acted reasonably.
7855774-10947	ORDER IMPOSING SANCTIONS CONTI, District Judge. On April 12, 1988, this court issued an order adopting the recommendations of Chief Magistrate Woelflen that Business Guides, Inc. (“Business Guides”) and its counsel Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey (“Finley Kumble”) be sanctioned pursuant to Fed.R.Civ.P. 11. The order of the court also unsealed the file and record in the matter, and granted defendants Chromatic Communications Enterprises, Inc. (“Chromatic”) and Michael Shipp (“Shipp”) thirty days to respond to the court’s findings with a motion for sanctions. The matter is currently before the court on defendants’ motion for sanctions. The defendants originally brought this motion for sanctions against both Business Guides and Finley Kumble. Subsequent to the defendants’ notice of the motion, this court received a letter from the law firm of Milbank, Tweed, Hadley & McCloy (“Mil-bank Tweed”) informing the court that Finley Kumble had recently dissolved and that the estate was in Chapter 11 bankruptcy proceedings in the United States Bankruptcy Court, Southern District of New York. Milbank Tweed informed the court that it represented the Chapter 11 Trustee for Finley Kumble, and that pursuant to court order, any proceeding to recover a claim against Finley Kumble was stayed under Section 362 of the Bankruptcy Code. The issue of the applicability of a bankruptcy stay to these proceedings has never been briefed. After consulting with Mil-bank Tweed, defendants decided to withdraw that part of their motion which applied to Finley Kumble. Defendants’ motion is therefore directed only toward Business Guides. The court will accept the representation of Milbank Tweed, as counsel for the trustee in bankruptcy, that any proceedings against Finley Kumble are stayed pursuant to the Bankruptcy Code. The court’s disposition of the matter before it does not prejudice defendants’ right to pursue a sanctions award against Finley Kumble should its legal status change. Defendants argue that the action Business Guides brought against them had no basis in fact and was interposed to harrass them. Defendants seek the imposition of sanctions against Business Guides, pursuant to Rule 11, in the form of an award of attorney’s fees, damages for loss of business, and an order dismissing the action. Business Guides opposes defendants’ motion, arguing that sanctions are inappropriate in the circumstances of this case. The factual background and law applicable to this matter was set out in detail in the court’s April 12,1988 order. See Business Guides v. Chromatic Communications Enterprises, Inc., 119 F.R.D. 685 (N.D.Cal.1988). In their moving papers, however, defendants have proferred evidence which further develops the factual background of these proceedings. In its order of April 12, 1988, the court explained that of the ten purported “seeds” used in Business Guides’ directory, the seeds which allegedly demonstrated copyright infringement, the court could only confirm the falsity of the information given in one seed. 119 F.R.D. at 687. Defendants have now come foward with competent evidence that they did not copy the lone purported seed from Business Guides’ directory. Rather, the defendants argue that the remaining seed was “planted” in their directory by Business Guides to investigate their operation. The seed at issue was originally described by Business Guides as an entity entitled NFR Computer Room, 87-32 253rd St., Bellerose, New York 11426. An individual named Nick Rossini was listed as the President and Buyer of this company. According to plaintiff, Business Guides invented this company, and no such company has ever existed. See Declaration of Michael Lambe in Support of Plaintiff’s Application for a Temporary Restraining Order and for Preliminary Injunction, p. 6, filed with this court on November 7, 1986. Michael Shipp, the president of Chromatic, has submitted a declaration in which he states “unequivocally” that he never purchased, borrowed, acquired, or'ever had in his possession Business Guides’ directory prior to the preparation of Chromatic’s directory. Declaration of Michael Shipp in Support of Motion for Award of Sanctions, p. 3. Shipp further states I have personally reviewed portions of this Court’s record, following the unsealing thereof on or about April 12, 1988. From my review of that record, it appears that plaintiff is contending that I copied its publication, and although it originally pointed to ten so-called “seeds” which allegedly prove such copying, that claim is now reduced to a single “seed”: Richard Rossini. From a review of my own records, I have determined that Richard Rossini, doing buisness as The Answer Man, was added to our data base when he ordered one of our directories. Attached hereto as Exhibit “A” is a true and correct copy of his order. Attached hereto as Exhibit “B” is a true and correct copy of his recent order for Micro-Leads. Following our standard practice, I forwarded to Mr. Rossini a questionnaire or survey for completion and return. Attached hereto as Exhibit “C” is a true and correct copy of the completed survey form I received from Mr. Rossini. Id. pp. 3-4. Exhibit A is a copy of an order for Chromatic’s diskette and source book. The form has been filled out with the name of Richard Rossini as president of a company called The Answer Man. The order gives the same New York address that Business Guides states it invented. Exhibit B is a copy of an order for a Chromatic directory with the same name and address filled in as Exhibit A. Exhibit C is a copy of a letter to Nick Rossini from Chromatic’s souree book asking for any changes to the NFR Computer Listing. The letter appears to reflect a change in the title of Rossini’s company to “Rossini’s Computer Room.” This evidence indicates that some individual or entity other than Chromatic or Shipp was responsible for this seed appearing in Chromatic’s directory. Business Guides makes no attempt to challenge defendants’ evidentiary showing. Business Guides neither admits nor denies defendants’ contention that the purported seed was planted in Chromatic’s directory by Business Guides. In fact, Business Guides’ opposition to defendants’ motion makes no mention of the Shipp declaration or the exhibits. This court can only interpret Business Guides’ silence on this subject as its tacit admission that defendants were not in fact responsible for the appearance of this purported seed in the Chromatic directory. The court is left to conclude that Business Guides’ entire lawsuit has no basis in fact. Business Guides opposes defendants’ motion by arguing that, as a matter of law, it cannot be sanctioned for the use of its master seed list or for the presentation of an incorrect and inadequate explanation during the sanctions proceedings. These are arguments Business Guides has asserted throughout the proceedings. Business Guides also argues that it should not be sanctioned for relying in good faith on its counsel, and that Rule 11 does not authorize consequential damages. This court has already found that Business Guides violated Rule 11. There is nothing in Business Guides’ opposition papers which has persuaded this court that this determination is unsound. The court has already considered and rejected Business Guides’ argument that its conduct is not sanctionable as a matter of law. The court, however, takes this opportunity to respond to Business Guides’ characterization of the conduct for which it is being sanctioned. Business Guides argues that ... to hold that the method of preparing the list in 1984 gave rise to a violation of Rule 11 when the list was relied upon in 1986 is, in effect, to impose upon Business Guides a “continuing duty” to reevaluate or re-check business records. That is inconsistent with a steady line of cases which hold that Rule 11 is only applicable as of the “snapshot” in time when a pleading or other paper is filed, [citations omitted] Memorandum of Points and Authorities of Business Guides, Inc. in Opposition to Defendants’ Motion for Sanctions (“Memorandum of Business Guides”), p. 6. Business Guides is missing the point. The point is that a “snapshot” of the pleadings in this case demonstrates that Rule 11 was violated. When the pleadings were filed Business Guides’ claims had no basis in fact; there was, and is, no evidence of copyright infringement. Rule 11 does not apply to the manner in which Business Guides prepares its business records. However, the rule does apply to the manner in which Business Guides brings lawsuits. The rule requires that a “reasonable inquiry” be conducted before embarking on litigation. This Business Guides failed to do. This failure is sanctionable. Business Guides has also argued that because of the intervening bankruptcy filing by Finley Kumble the burden of any sanction falls entirely on it. Business Guides argues that this is unfair because it was merely relying in good faith on its counsel. Business Guides argues that imposing sanctions on it in these circumstances “is akin to penalizing a patient who, although he has described to his physician his symptoms, failed to diagnose his cancer.” Memorandum of Business Guides, p. 12. The court first states that any decision not to impose sanctions on Finley Kumble is based on the legal effect of the bankruptcy stay and does not reflect a determination by this court that Finley Rumble’s conduct was not sanctionable. The court, however, does not accept Business Guides’ suggestion that responsibility in this manner is better directed toward its counsel. Both Business Guides and its counsel acted unreasonably throughout this litigation. Furthermore, it was Business Guides’ failure to get its facts straight which precipitated this lawsuit. The problem with the commencement of this lawsuit, to use Business Guides’ analogy, was not a faulty diagnosis, it was false symptoms. This case illustrates well the dangers of a party’s failure to act reasonably in commencing litigation. Here Business Guides, a sophisticated corporate entity, hired a large, powerful and nationally known law firm to file suit against a competitor for copyright infringement. This competitor happened to be a one-man company operating out of a garage in California. Two years later, after extensive time and effort on the part of the court, the various counsel for Business Guides, as well as various counsel for Business Guides’ counsel, it turns out there was no evidence of infringement. The entire lawsuit was a mistake. In the meantime, the objects of this lawsuit have spent thousands of dollars of attorney’s fees and have suffered potentially irreparable damage to their business. This entire scenario could have been avoided if, prior to filing the suit, Business Guides simply had spent an hour, like the court’s law clerk did, and checked the accuracy of the purported seeds.
1817881-15437	PARKER, Circuit Judge. This is a suit to restrain the collection of the South Carolina gasoline tax with respect to gasoline sold to complainant, Eastern Air Transport, Inc., on the ground that as to such gasoline the tax imposes a burden upon interstate commerce in violation of the Commerce Clause of the Constitution of the United States. Const. art. 1, § 8, cl. 3. An interlocutory injunction restraining the collection of the tax is asked; and a court of three judges has been convened pursuant to section 266 of the Judicial Code (28 USCA § 380). Complainant is a Delaware corporation operating air transport lines in interstate commerce across the state of South Carolina. Its planes stop at Greenville, Spartanburg, Florence, and Charleston in that state, but do not carry freight or passengers between those cities, practically its entire business in South Carolina being interstate in character. At these points, however, it purchases gasoline from the Standard Oil Company for the use of its planes; .and that company charges complainant 6 cents per gallon more for same than it otherwise would because it is required by the state of South Carolina to pay a dealers’ license tax of that amount. The suit is instituted against the members of the South Carolina tax commission to enjoin them from collecting this tax from the Standard Oil Company with respect to the gasoline sold complainant, on the theory that, as complainant is engaged in interstate commerce and uses the gasoline purchased in carrying on same, the tax is a burden on interstate commerce which may not bg imposed by the state. Although complainant is not required to pay the tax itself, the burden of same falls upon it, and the doctrine laid down in Station WBT, Inc., v. Poulnot (D. C.) 46 F.(2d) 671, is invoked as sustaining the right of complainant to, maintain the suit. There is no question but that the jurisdictional amount is involved. The South Carolina statute imposing the tax is Act No. 102, approved March 16, 1929, S. C. Acts 1929 (36 St. at Large), pp. 107-113. The pertinent portion thereof is as follows : “That every oil company, person, firm or corporation doing domestic or intrastate business within this State, and engaging in the business of soiling, consigning, using, shipping, or distributing for the purpose of sale within this State, any gasoline or any substitute therefor, or combination thereof, for the privilege of carrying on such business shall be subject to the payment of a license tax, which tax shall be measured by and graduated in accordance with the volume of sales of such oil company within the State. Every such oil company shall pay to the State an amount of money equal to six (6) cents per gallon on all gasoline, combinations thereof, or substitutes therefor, sold or consigned, used, shipped or distributed for the •purpose of sale within the State.” Section 1. It may be well to note that the Act approved April 4, 1930 (Acts 1930 [36 St. at Large] pp. 1390-1392), imposing a tax of 6 cents per gallon on all persons importing gasoline into the state which is “intended to be stored or used for consumption in this State” (section 1), has no application to the ease at bar. Complainant is not importing or storing gasoline for use in the state of (South Carolina and is in no wise affected by that statute, whether it be constitutional or not. It is affected by the gasoline tax statutes only with respect to its purchases from the Standard Oil Company, and, as to these, only because that company is taxed on the basis of its sales and passes the tax on to its customers through an increase in the price charged them. The sole question in the ease, therefore, is the validity of the tax imposed by the act of 1929' upon the Standard Oil Company when measured by its sales of gasoline which the purchaser intends to use and does use in carrying on interstate commerce. We think that the tax is valid. We Attach no importance to the fact that the tax is described in the statute as a privilege or license tax; for, where such tax is measured by sales, it is in effect a sales tax, whatever it may be called. Panhandle Oil Co. v. Mississippi, 277 U. S. 218, 222, 48 S. Ct. 451, 72 L. Ed. 857, 56 A. L. R. 583. And, although not a property tax within the meaning of the South Carolina Constitution, but an excise tax (Gregg Dyeing Co. v. Tax Commission [S. C.] -S. E.- ), it must be treated as in effect a tax upon the property sold for determining questions arising under the federal Constitution. Kehrer v. Stewart, 197 U. S. 60, 25 S. Ct. 403, 49 L. Ed. 663; Welton v. Missouri, 91 U. S. 275, 23 L. Ed. 347; Brown v. Maryland, 12 Wheat. 425, 6 L. Ed. 678. But the rule is that the right of a state to tax property within its borders or transactions therein oecur ring is practically unlimited, except that it may not tax interstate commerce or burden such commerce by taxing the instrumentalities used in carrying it on or violate other constitutional provisions not here material. The sale,.being completed within the state of South Carolina, is, of course, not a transaction in interstate commerce. The question in the case, then, comes to this, whether at the time of the sale, which is the transaction by which the.tax is measured, the gasoline which is .the subject of the sale can be regarded as an instrumentality of such commerce. We think this question must be answered in the negative. The gasoline assumes the character of such an instrumentality only because of the use made of it after the sale is complete. The question arises whether the fact that, at the time of the sale, the purchaser intends that the gasoline shall be used in carrying on interstate commerce and buys it for that purpose, affects the right of the state to tax the sale. The answer to this is that the criterion by which the right of the state is to be judged isnot the intention of the purchaser but the status of the property at the time of the transaction. As said by Mr. Justice McKenna in Heisler v. Thomas Colliery Co., 260 U. S. 245, 259, 43 S. Ct. 83, 86, 67 L. Ed. 237: “If the possibility, or indeed certainty, of exportation of a product or article from a state determines it' to be in interstate commerce before the commencement of its movement from the state, it would seem to follow that it is in such commerce' from the instant of its growth or production, and in the ease of coals, -as they lie in the ground. The result would be curious.’ It would nationalize all industries, it would nationalize and withdraw from state jurisdiction and deliver to federal commercial control the fruits of California and the South, the wheat of the West and its meats, the cotton of the South, the shoes of Massachusetts and the'woolen industries of other states at the very inception of their production or growth, that is, the fruits unpicked, the cotton and wheat ungathered, hides and flesh of cattle yet ‘on the hoof,’ ‘wool yet unshorn, and coal yet unmined, because they are in varying percentages destined for and surely to be exported to states other than those of their production.” In Oliver Iron Co. v. Lord, 262 U. S. 172, 43 S. Ct. 526, 529, 67 L. Ed. 929, the state of Minnesota had imposed a tax on the business of mining iron ore measured by a percentage of the value of the ore mined or produced. Substantially all of the ore when mined was loaded on cars and shipped into other states to satisfy existing contracts. In holding that the tax on production was not a burden on interstate commerce, though the ore was destined for transportation in such commerce even before it. was mined, the court, speaking through Mr. Justice Van Devanter, said: “The ore does not enter interstate commerce until after the mining is done, and the tax is imposed only in respect of the mining. No discrimination against interstate commerce is involved. The tax may indirectly and incidentally affect such commerce, just as any taxation of railroad and telegraph lines does, but this is not a forbidden burden or interference.” The same holding has been made with respect to the production tax on gas (Hope Natural Gas Co. v. Hall, 274 U. S. 284, 47 S. Ct. 639, 71 L. Ed. 1049); a tax on coal prepared and “ready for shipment or market” and destined for a market in other states (Heisler v. Thomas Colliery Co., supra); and a manufacturing tax upon goods sold in interstate commerce (American Mfg. Co. v. St. Louis, 250 U. S. 459, 39 S. Ct. 522, 63 L. Ed. 1084). A state has the same right to tax sales that it has to tax the production of gas, the mining of coal, or the manufacture of merchandise; and, if destination of the product for use or shipment in interstate commerce does not affect the power of the state to tax in these eases, there is no reason why the intention that property sold should be used in carrying on interstate commerce should affect the right of the state to tax its sale. No one, we think, would contend that a railroad operating a coal mine could escape the production tax on coal because it was intended to use the coal in carrying on interstate commerce; and we see no reason why a sales 'tax on- coal or on oil would not be equally valid. The leading case dealing with the right of the state to tax property intended for interstate commerce is Coe v. Errol, 116 U. S. 517, 6 S. Ct. 475, 478, 29 L. Ed. 715. In that ease it was held that goods intended for transportation to another state are liable to taxation as a part of the general mass of property of the state in which they are situate until actually started in transportation to the state of their destination. The criterion applied in that and later cases (see Crescent Oil Co. v. Mississippi, 257 U. S. 129, 42 S. Ct. 42, 66 L. Ed. 166 ; Heisler v. Thomas Colliery Co., supra) is thus stated by Mr. Justice Bradley: “Such goods do not cease to be part of the general mass of property in the state, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common earlier for transportation, to another state, or have been started upon such transportation in a continuous route or journey. We think that this must be the true rule on the subject. It seems to us untenable to hold that a crop or a herd is exempt from taxation merely because it is, by its owner, intended for exportation.” While that case dealt with property intended for transportation in interstate commerce, it is clear that the same principle is applicable in the case of properly intended for use in interstate commerce, and that such property is withdrawn from the taxing power of the state only when such use is actually begun. A different question would be presented if the taxing statute made discrimination between ordinary sales of gasoline and sales of gasoline intended for use or transportation in interstate commerce. Such discrimination would constitute an attempt on the part of the state to burden interstate commerce which is not permissible. Cf. Welton v. Missouri, supra, 91 U. S. 277, 23 L. Ed. 347. But there is no discrimination in the tax here. Sales of gasoline intended for use in interstate commerce are taxed in the same way and at the same rate as other sales. The tax is a mere revenue measure imposed upon purely intrastate transactions, and there is tio attempt whatever to discriminate against the gasoline which is intended for subsequent use in interstate commerce. The case of Helson v. Kentucky, 279 U. S. 245, 49 S. Ct. 279, 73 L. Ed. 683, upon which complainant particularly relies, is not in point. In that case a statute of Kentucky taxed the use of gasoline within the state. The state officials brought action to recover the tax from the operators of a ferry boat who purchased gasoline in Illinois and used same in operating an interstate ferry boat. The question of the right of Kentucky to tax sales of gasoline intended for use in.interstate commerce was not involved. The question was the right of that state to'tax the use in interstate commerce of gasoline purchased in another state. It was held that the; state was without power to tax the use of an instrumentality of interstate commerce) which is manifestly a very different question from that involved in the right of the state to tax tho sale within its borders of an article designed by the purchaser for use in interstate commerce. As said by Mr. Justice Sutherland in Hart Refineries v. Harmon, 278 U. S. 499, 503, 49 S. Ct. 188, 189, 73 L. Ed. 475 : “The difference between an excise tax based on sales and one based on use of property is obvious and substantial.” We have carefully examined the cases of U. S. Airways v. Shaw (D. C.) 43 F.(2d) 148, and Mid-Continent Air Express Corp. v. Lujan (D. C.) 47 F.(2d) 266, upon which complainant relies. In so far as these cases deny to a state the right to impose a tax on sales occurring within its borders because the purchaser intends to use the property purchased in carrying on interstate commerce, wo think that they press the doctrine of the Helson Case too far.; and, while wo have groat respect for the courts which rendered these decisions, we cannot follow them in that holding. It appears, however, that the statutes dealt with in these eases taxed the use of gasoline within the state and not merely the sale; and the right to tax the use in interstate commerce, as we have shown above, is a very different matter from the right to tax the sale before the use in interstate commerce begins. In so far, therefore, as these cases deal with the right to tax the use of gasoline in interstate commerce, they decide a question which is not before this court. It is said, however, that the Supreme Court of South Carolina, in the recent ease of Gregg Dyeing Co. v. Tax Commission,-S. E.-, has construed the gasoline tax statutes of South Carolina as intended to impose a tax on the ultimate consumer, and that hence the statute in question is to be treated as a tax on the use. We do not think that this conclusion follows. The Gregg Case passed upon the validity of the act of 1930 which imposed a tax upon gasoline brought, into tho state and intended to be “stored or used for consumption” therein, and, as we have seen, that statute is not here involved, nor is the portion of the former statute taxing use. It is true that the court adverted to the obvious shifting of the sales tax to the ultimate consumer and said that it was the purpose of the Legislature in passing the act of 1930 that all consumers should pay the gallonage tax of 6 cents; but the fact remains that, whether shifted or not, the tax imposed by the act of 1929 so far as measured by sales is a tax on sales occurring within the state, which the state has a right to tax. Even though the Legislature may have known that the sales tax would be shifted to tho ultimate consumer by increase in price and may have passed the tax intending this result to follow, this did not affect its power to tax sales as shown above, nor does it exempt sales from taxation merely because the purchaser may intend that the property purchased be used in interstate commerce. As said by Mr. Justice McKenna in Heisler v. Thomas Colliery Co., supra, 260 U. S. 245, 250, 43 S. Ct. 83, 86, 67 L. Ed. 237: “Whether any statute or action of a state impinges upon interstate commerce depends upon the statute or action, not upon what is said about it or the motive which impelled it.”