Datasets:

haritzpuerto

/

the_pile_00_FreeLaw

like 0

221 Cal.App.2d 187 (1963) THE PEOPLE, Plaintiff and Respondents, v. JOE KESSLER, Defendant and Appellant. Crim. No. 8905. California Court of Appeals. Second Dist., Div. Four. Oct. 14, 1963. Zeman & Fischer and B. D. Fischer for Defendant and Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and H. Warren Siegel, Deputy Attorney General, for Plaintiff and Respondent. BURKE, P. J. [1a] After trial by jury, defendant was found guilty of rape as to one victim and not guilty of *188 assault with intent to commit rape as to another person. Thereafter, the court granted defendant a new trial on the rape charge. At the second trial before a jury defendant was again convicted. A motion for new trial was denied and probation granted conditioned on imprisonment for the first six months in the county jail. Defendant appeals from such judgment. [2] The evidence for the prosecution was as follows: On April 3, 1962, while her husband was at work, the prosecutrix was washing her baby's diapers on the service porch. She testified someone seized her from behind, held her arms and placed one hand over her mouth. During the struggle she noted it was defendant who had been a family friend. He forced her into the adjoining bedroom and disrobed her. She attempted to get free and to scratch him but could not. He pushed her on the bed and forcibly committed an act of sexual intercourse. A neighbor testified the prosecutrix came to her house, visibly upset and with a bleeding lip, and related the incident. The neighbor suggested calling the police which was done. Defendant, who is an instructor in auto mechanics, testified that he had been asked to come to prosecutrix' home to assist in starting her car. He denied having had intercourse, contending that he was invited into the victim's bedroom and that they merely caressed and kissed each other. The record discloses substantial evidence to support the verdict of the jury and as to that point our inquiry rests here. (People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778].) Defendant complains of several specifications of misconduct on the part of the prosecutor which he contends constituted prejudicial error. With but one exception, these concerned matters of minor importance which would not warrant a reversal under the application of section 4 1/2 of article VI of the Constitution and do not merit discussion. However, as to one specification, prejudice to defendant undoubtedly resulted and necessitates reversal. [1b] During the voir dire examination the prosecutor stated: "There is one other possible witness who is not in court. I can only mention his name and ask if any of you are acquainted with him in any way. Are any of you acquainted in any way with a Jack White, of the Probation Department of Los Angeles County? Is the name familiar to any of you? *189" "Now, this case involves, as has been discussed, charges of a sexual nature. Do any of you feel that because of that fact you would rather not sit on a jury?" The probation officer was not called by the prosecutor during its case in chief, but only belatedly near the end of the trial, on rebuttal. His testimony in no way tended to prove the commission of the crime but related only to the reason defendant had given for his visit to the home of the prosecutrix the day of the offense. As we have said, at his trial, defendant had stated he had been asked to come to the victim's home to see if he could get her car started. The probation officer testified that defendant had told him in July that the reason for such visit was that the prosecutrix and her husband were interested in buying another automobile. Both reasons could have been valid; the one does not preclude the other. Since the prosecutor stated, when objection was made during the examination of the probation officer, that the testimony was not offered for impeachment purposes, there does not appear to have been any proper purpose related to any disputed issue justifying the introduction of such testimony. A portion of the direct examination of the probation officer by the prosecutor is as follows: "Q. What is your business or occupation, sir?" "A. I am a Deputy Probation Officer with the Los Angeles County Probation Department." "Q. Mr. White, calling your attention to the date of July 20th of this year, on that date did you have occasion to have a conversation with this defendant here, Mr. Kessler, concerning at least partially the charges that are presently pending here?" "A. I had several conversations with Mr. Kessler. I cannot say the particular date unless I would see my report." "Mr. Light: I believe you have seen this, counsel." "Q. By Mr. Light: I show you--does this appear to be a copy of your report?" "A. It is." "Q. And does this make reference to a conversation with the defendant on the date of July 20?" "A. No. This is the date that this report was due in court. This would mean that I had to talk with this man at least five days prior to that date." "Q. Sometime in that period of time then, shortly before July 20th, did you speak with him? *190" "A. Yes, I did." "Q. And did portions of that conversation concern the charges that are presently pending here?" "A. They did." "Q. In other words, this alleged rape on a Harriett Cole?" "A. That's correct." "Q. About how long did you talk with the defendant concerning these charges, that is the one involving Harriett Cole?" "A. Well, indirectly I talked with Mr. Kessler approximately five times. To the best of my knowledge I talked with him in person on two occasions; roughly three hours, approximately one hour on the initial interview and in his home approximately two hours." "Q. Now, during the course of that conversation, with reference to his own evaluation of himself, did Mr. Kessler make the statement that in his opinion he may need some help, referring to psychiatric help?" "Mr. Zeman: Now, at this time I am going to make certain objections, your Honor, and I would like to make them in the absence of the jury." Objections and a motion for mistrial were thereupon made and denied by the court. This was error. Not only did the questions infer that defendant had been found guilty of the particular charges but there was a direct implication that defendant had been involved in other charges. Defendant's counsel cross-examined the probation officer, no doubt in an attempt to counteract the unfavorable effect of the probation officer's very presence on the stand, but with disastrous results to his cause. Likewise, answers volunteered by the probation officer, which were not responsive to the questions asked, were very prejudicial: "Q. By Mr. Zeman: Did you ask the defendant at any time if he was guilty; do you recall?" "A. No, I do not recall. This would not be a normal practice. It is not a probation officer's responsibility to determine one's guilt. We assume they are guilty when they come to us. I may have discussed the essence of this, but I would not say 'Are you guilty?'" "Q. You assume it?" "A. This is my responsibility to assume it unless it is a pretrial report that I am doing. Then the man has not been found guilty." "Q. As far as your office is concerned, at this time he *191 stands innocent of any conviction; at this time as far as your office is concerned?" "A. I am not at liberty to speak for the office of the Probation Department. For the report I submitted to the court, the man was guilty, and I had a job to do, and that was to submit a report for the court. I don't know the status of this defendant at this time. On July 20, 1962 when I submitted that report he was." "Mr. Zeman: I think at this time I should renew my motions that I previously made at the bench." "The Court: You are the one that is asking the questions." "Mr. Zeman: I didn't ask him that question." "The Court: You sure did." "Mr. Zeman: I asked him as far as the status of the probation at this particular time." "The Court: Motion denied." Defendant contends that such conduct of the prosecution was prejudicial in that it constituted a calculated method of unfairly alluding to a former trial in which the defendant was involved and in which the jury could infer defendant was found guilty. In People v. Solis, 193 Cal.App.2d 68, 77 [13 Cal.Rptr. 813], the court stated: "While the use of the probation officer as a witness under the circumstances was extraordinary and involved a practice not to be encouraged, it cannot be said that it constituted prejudicial error." In the Solis case an effect of the testimony of a probation officer was to disclose to the jury that the defendant had been convicted of the charged offense in a prior trial, but the court held that it was properly received because otherwise admissible in that it tended to prove knowledge of the character of marijuana, an essential element in the proof of guilt. The defendant had testified in substance that he was unfamiliar with marijuana cigarettes. "Any evidence which is necessary, pertinent, and material to proof of the crime charged, or which logically and by reasonable inference tends to establish any fact material to the prosecution, is not inadmissible merely because it may prejudice the accused by proof of his guilt of other crimes." (People v. Castellanos, 157 Cal.App.2d 36, 39 [320 P.2d 152].) Here, however, the respondent admits, commendably, that the testimony of the probation officer was unnecessary, stating in its brief, "In the Solis case, as here, the probation *192 officer's testimony was not essential to the People's case." The use of a witness, such as a probation officer, with all of the dangers involved by virtue of his previous contacts with defendant in his official capacity, was accordingly unjustified as the jury could have misused such evidence without good cause to defendant's disadvantage. "The rule is one of necessity and the risk of misuse should not be incurred if the evidence is not directed to a disputed issue in the case." (People v. Spencer, 140 Cal.App.2d 97, 105 [294 P.2d 997].) Section 1180 of the Penal Code provides: "The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading." Such mandate applies here. The unnecessary calling and identifying of the probation officer as a witness was an indirect method of using and referring to defendant's former trial; implying prior criminality, it could not have failed to prejudice defendant in the eyes of the jury. Unquestionably, it denied him a fair trial. The judgment is reversed. Jefferson, J., and Kingsley, J., concurred.

19‐335‐cr United States v. Gary Jacques UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of February, two thousand twenty. PRESENT: JOHN M. WALKER, JR., DENNY CHIN, STEVEN J. MENASHI, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x UNITED STATES OF AMERICA, Appellee, ‐v‐ 19‐335‐cr ROBERT ALEXANDER GUERRERO, aka Al, aka Alex, CESAR POLANCO, aka Peechon, aka ʺPatrone,ʺ aka Pachong, aka ʺPetion,ʺ JEFFREY JACQUES, ANSEY GUERRIER, aka Lucky, aka Andre, Defendants, GARY JACQUES, Defendant‐Appellant. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR APPELLEE: Jo Ann M. Navickas, Ryan C. Harris, Assistant United States Attorneys, for Richard P. Donaghue, United States Attorney for the Eastern District of New York, Brooklyn, New York. FOR DEFENDANT‐APPELLANT: Gary Jacques, pro se, Danbury, CT. Appeal from an order of the United States District Court for the Eastern District of New York (Gershon, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED. Defendant‐appellant Gary Jacques, proceeding pro se, appeals an order entered January 18, 2019, denying his motion for reduction of his sentence. We assume the partiesʹ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. In 2010, following a jury trial, Jacques was convicted on multiple drug trafficking counts and, in a separate criminal proceeding the same year, pled guilty to wire fraud. In a combined sentencing proceeding, the district court sentenced Jacques principally to 228 monthsʹ imprisonment on all counts. In 2014, Jacques moved under 18 U.S.C. § 3582(c)(2) for a reduction in his sentence pursuant to Amendment 782 to the United States Sentencing Guidelines. The district court granted the motion in 2015, reducing Jacquesʹs sentence to 216 monthsʹ imprisonment. 2 In 2017, Jacques moved for a second reduction under Amendment 782. The district court denied the motion, concluding that Jacques had not offered an additional ground for reduction. In 2018, Jacques moved again for what he characterized as either a further motion for reduction of his sentence or a motion for reconsideration of the district courtʹs decision on his prior motion, relying on a Ninth Circuit decision, United States v. Pimentel‐Lopez, 859 F.3d 1134 (9th Cir. 2016). The district court denied the motion on January 18, 2019, holding that Jacques had not presented any additional ground for reduction of his sentence and, alternatively, if the motion were considered a motion for reconsideration, the motion was untimely and meritless because an out‐of‐ Circuit case decided after the district courtʹs 2015 decision reducing Jacquesʹs sentence was not binding. Jacques appeals. We review de novo a district courtʹs determination as to whether a defendant is eligible for a sentence reduction. See United States v. Christie, 736 F.3d 191, 195 (2d Cir. 2013). Section 3582(c)(2) provides that a sentencing court may reduce a defendantʹs term of imprisonment if he is eligible for a reduction, that is, if he has been sentenced based on a guidelines range that was subsequently lowered by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2). While we have not decided the standard of 3 review for appeals from motions to reconsider denials of § 3582(c)(2) rulings, we need not do so here because Jacquesʹs appeal fails even on de novo review.1 The district court did not err by denying Jacquesʹs motion to reduce his sentence. Jacques had already received a reduction pursuant to Amendment 782, and he was not eligible for a second reduction because the applicable guidelines range had not been subsequently lowered by any other amendment. See United States v. Derry, 824 F.3d 299, 304‐07 (2d Cir. 2016) (determining that defendant was not eligible for second sentence reduction where no subsequent amendment lowered guidelines range from first reduction). Jacques argues that the district court erred by failing to construe his motion as a motion for reconsideration of the 2015 decision reducing his sentence. While Jacques correctly notes that he asked the district court to ʺreconsider whether the sentence imposed (216 months) resulted in a sentence disparity,ʺ Govʹt Appʹx at 239, he also characterized the motion as a subsequent motion for a sentence reduction (rather than one seeking reconsideration), sought to apply the legal standards applicable to resentencing under § 3582 rather than the standards for reconsideration, and raised new 1 See United States v. Delva, 704 Fed. Appʹx 8, 9 (2d Cir. 2017) (ʺThis court has not decided what standard of review applies to appeals from motions to reconsider denials of § 3582(c)(2) rulings.ʺ). 4 arguments. Hence, Jacques viewed the motion as a new motion for a reduction of sentence. Moreover, even assuming the motion was a motion for reconsideration, the district court did not abuse its discretion in denying it. First, the motion was untimely: the Eastern Districtʹs local criminal rules require that any motion for reconsideration be filed within 14 days. E.D.N.Y. Local Crim. R. 49.1(d). The district court decided Jacquesʹs first sentence reduction motion in September 2015, and Jacques did not make his third motion ‐‐ the subject of this appeal ‐‐ until June 2018, nearly three years later. Jacques argues that the Government waived any objection to the timeliness of his motion by failing to argue it in its response. But given that Jacquesʹs motion did not clearly argue for reconsideration, the Governmentʹs failure to address the timeliness of the motion did not constitute waiver. See United States v. Spruill, 808 F.3d 585, 597 (2d Cir. 2015) (ʺ[W]aiver can result only from a [litigantʹs] intentional decision not to assert a right.ʺ). Second, Jacques argues that the district court erred by not considering the effect of Pimentel‐Lopez, 859 F.3d 1134, on his sentence because courts are permitted to consider intervening changes in the law on a motion for reconsideration. He is partially correct. While courts may consider ʺan intervening change in controlling lawʺ on a 5 motion for reconsideration, United States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009), Pimentel‐ Lopez is not controlling. Accordingly, we conclude that the district court did not abuse its discretion by determining that the case did not warrant reconsideration of its prior decision. * * * We have reviewed the remainder of Jacquesʹs arguments and conclude they are without merit. For the foregoing reasons, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court 6 

422 F.Supp.2d 549 (2006) Jennifer ALBERO Plaintiff, v. CITY OF SALISBURY, et al., Defendants. No. CIV. L-03-2425. United States District Court, D. Maryland. March 27, 2006. *550 *551 *552 Kevin M. Tracy, Thomas Edwin Walker, McNamee Hosea Jernigan Kim Greenan and Walker PA, Greenbelt, MD, for Plaintiff. Daniel Karp, Bryant Karpinski Colaresi and Karp PA, Baltimore, MD, for Defendants. MEMORANDUM LEGG, Chief Judge. Plaintiff, Jennifer Albero ("Albero"), a past employee of the Salisbury Zoo ("Zoo"), brought this Title VII employment discrimination suit against the City of Salisbury and James Rapp ("Rapp"), the Zoo's Director. Following discovery, defendants moved for summary judgment on the two remaining counts of the Complaint, which allege sexual harassment/hostile work environment (Count I), and retaliation (Count III). Because the papers adequately address the issues, the Court will dispense with a hearing. As is more fully stated below, Albero's proof is legally insufficient to support her claims. With respect to Count I, Albero cannot establish that she was harassed "because of" her sex. Moreover, the Zoo's work environment, while crude, was not severe enough to be considered "hostile." With respect to Count III, Albero did engage in protected activity: filing a complaint of discrimination. The Zoo, however, took no adverse employment action against her in retaliation. Simply put, no fair-minded jury could find in her favor on any of her claims. In a separate Order, therefore, the Court will GRANT the defendants' motion for summary judgment and DIRECT the Clerk to CLOSE the case. I. BACKGROUND Albero began working at the Zoo in 1986, when she was hired as a zookeeper. Climbing the ranks, she had been promoted to the position of Zookeeper III, or Senior Zookeeper, at the time she was *553 terminated. In December 2003, Albero took indefinite sick leave under the Family and Medical Leave Act due to a back injury she had sustained in March of that year. The Zoo terminated Albero in June 2004 after she informed the City, through her counsel, that she would seek disability retirement.[1] Rapp became Zoo director in 1994. Albero appears to have gotten along well with her fellow employees and supervisors until 2001. As will be discussed, Albero and her co-workers socialized both on and off the job. Her employment grievances began in the fall of that year, when Carrie Samis ("Samis"), the Zoo's Education Curator, secured a job reclassification that carried a raise. Samis' raise upset Albero, who believed that Samis did not deserve one, and because no one else at the Zoo received a raise at that time. Albero alleges that Rapp singled out Samis for favoritism because he was involved in a sexual relationship with her. Albero contends that this relationship created a sexually hostile work environment. In April 2003, Albero filed a grievance with the City complaining that her work environment at the Zoo was hostile. The City promptly assembled an investigative team, which interviewed six current and one former Zoo employee, including Albero, Rapp, and Samis.[2] The investigators compiled a five-page report wherein they made detailed findings as to each of Albero's claims.[3] They found no evidence either that Rapp and Samis were having an affair or that Albero had suffered harassment. The investigators did, however, conclude that the work environment at the Zoo was crude and unprofessional. The Investigation Report states: "An environment at the Zoo developed over the years that made acceptable discussions and jokes of a sexual nature . . . Sexually explicit language and pictures are not appropriate in the workplace . . . The investigators recommend that remediation occur to change the environment at the Zoo . . . "[4] The investigators recommended disciplinary action against Rapp for condoning a "sexually explicit" environment.[5] In July 2003, The City issued Rapp a letter of reprimand and instructed him to develop a remediation plan.[6] By all accounts, Rapp took the reprimand to heart. He arranged for all Zoo employees, including himself, to *554 attend a diversity training program. Albero does not allege that the "locker room" atmosphere persisted after the reprimand and the program. Because the unprofessional atmosphere at the Zoo is at the heart of Albero's hostile work environment claim, it merits a detailed discussion. Albero contends that during working hours, employees frequently told "dirty" jokes. Other employees, including Samis, freely discussed their sex lives.[7] While on vacation, Samis sent a postcard that displayed nude buttocks to the Zoo, and another employee posted the card in the office.[8] During breaks Zoo employees sometimes watched South Park, a satirical, frequently off-color cartoon. Albero contends that one time, she viewed the internet history on a commonuse computer and it contained the address of a pornographic website.[9] The name of the website was vulgar, but no pictures were displayed on the screen. By her own admission, Albero was a willing participant in the workplace giveand-take.[10] She brought a pornographic video to work, which she showed for a few minutes.[11] She commented to fellow employees, at work, that her showerhead "satisfied" her better than her ex-husband.[12] She told sexual jokes, bragged of a boyfriend's physical "endowments," and participated in purchasing sexual "gag" gifts for colleagues, including edible underwear and an inflatable sheep.[13] On two occasions, she attended strip clubs with other employees after working hours.[14] In support of her hostile work environment claim, Albero cites to a number of incidents that involved co-workers socializing after-hours and away from the Zoo. Albero states that she witnessed two of these incidents: Rapp once "mooned" fellow employees at a party;[15] another time, at a bar, he kissed the exposed nipple of a man.[16] Albero also cites incidents that she *555 heard about, but did not witness. She heard that Rapp urinated on a car windshield outside a bar,[17] that Samis allegedly played spin-the-bottle with Zoo interns,[18] and that on a business trip Samis's boyfriend spent the night in a hotel room with her and another employee.[19] The facts underlying Albero's retaliation claim are as follows. Soon after Samis's position was reclassified with a higher pay scale, Albero's relationships with Samis and Rapp became strained. In May 2002, Albero wrote a self-review that was part of her yearly evaluation: "My lack of enthusiasm due to selective, unwarranted raises to certain zoo employees. That creates loads of negativity in the workplace!"[20] Gary Muir, Albero's direct supervisor, noticed her deteriorating attitude. When grading Albero during her May 2002 evaluation, he gave her a mixed review. Albero received good grades for her work with the animals. Nevertheless, she received low marks for "interpersonal skills"[21] and "professionalism."[22] A couple of days later, Albero met with Rapp about the evaluation, which she perceived as negative.[23] Eight months later, in January 2003, Albero attended a "Counseling Session" with Rapp and Muir, at which she was counseled on her "antagonistic," "negative," and "hostile" behavior.[24] The "record of counseling" stated that she must "stop making disparaging and hurtful remarks about [her] co-workers and [her] Supervisors," and warned of disciplinary measures if she failed to comply.[25] She refused to sign the record of counseling.[26] Albero contends that no other employee had ever been given such a "mid-year evaluation," and that its purpose was to intimidate her.[27] Two days later, Rapp issued a memo to all Zoo staff on "Workplace Standards" with rules ranging from the appropriate way to log telephone calls to wearing appropriate safety shoes.[28] In the fall of 2003, he told Albero she could not come in *556 early without her supervisor's permission.[29] On March 10, 2003, Albero filed a Charge Statement with the EEOC alleging sexual harassment and a hostile work environment.[30] She filed a grievance making similar allegations with the City a month later on April 15, 2003.[31] On August 20, 2003, Albero filed the instant suit alleging, inter alia, sexual harassment/hostile work environment (Count I) and retaliation (Count III).[32] During this month, she applied and interviewed for an. Education Technician position, which would have placed her under Samis's direct supervision. The hiring committee consisted of Rapp, Samis, and a non-Zoo City employee, Alan Porianda. All three interviewed her. On September 15, 2003, Samis advised Albero by letter that she had not been selected.[33] Starting in December 2003, Albero took sick leave under the Family and Medical Leave Act (FMLA), because of a back injury she had sustained in March 2003. At that time, Albero filed a second EEOC charge alleging violation of the Americans with Disabilities Act (ADA) and retaliation.[34] Albero then moved to amend her complaint in the instant suit to add a cause of action pursuant to the ADA. She withdrew it soon thereafter, however, and it is not an issue in this suit. II. STANDARD The Court may grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (recognizing that trial judges have "an affirmative obligation" to prevent factually unsupported claims and defenses from proceeding to trial). Nevertheless, in determining whether there is a genuine issue of material fact, the Court views the facts, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party. Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). III. ANALYSIS With the factual background in mind, the Court now turns its attention to analyzing Albero's claims against the City of Salisbury.[35] A. Count I—Sexual Harassment[36] *557 To succeed on a claim alleging a hostile work environment, Albero must show that: 1) she was harassed because of her sex; 2) the harassment was unwelcome; 3) the harassment was sufficiently severe or pervasive to create an abusive working environment, and 4) some basis exists to impute liability to the employer. See Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir.2000). Even viewing the facts in the light most favorable to Albero, she does not provide evidence sufficient to meet any element of this test. 1. "Because of Albero's sex Albero alleges facts that paint a picture of a sexually inappropriate work environment. This, without more, does not rise to the level of a Title VII violation, however. Only harassment that occurs because of the victim's sex is actionable. Hartsell v. Duplex Prod., Inc., 123 F.3d 766, 772 (4th Cir.1997). Title VII does not attempt to "purge the workplace of vulgarity." Hopkins v. Baltimore Gas & Elec., 77 F.3d 745, 753 (4th Cir.1996) (citing Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir.1995)). Albero has offered no proof that any of the behavior was directed towards her in specific, or intended to humiliate her, or was pointed at her because of her sex. Many incidents that she points to in her pleadings occurred out of her presence. Albero also alleges that the "special" relationship between Samis and Rapp supports her claim for a hostile work environment. She provides no facts to support the assertion that Samis and Rapp had a sexual relationship, however. Samis and Rapp both deny ever having an intimate relationship.[37] No employee ever saw Rapp or Samis engaged in sexual or intimate behavior with each other. There is neither real nor circumstantial evidence to support Albero's allegation. Even viewing the facts in the light most favorable to Albero, she cannot rely on unsupported conjecture to defeat summary judgment. Albero, therefore, has failed to allege facts sufficient to meet this prong of her prima facie case. That alone is enough to defeat her claim. Nevertheless, in viewing Albero's evidence, the Court finds that she is also unable to establish the other prongs of the Smith test. 2. "Unwelcome" Conduct is "unwelcome" when it continues after the employee sufficiently communicates that it is unwelcome. See Scott v. Ameritex Yarn, 72 F.Supp.2d 587, 591 (D.S.C.1999) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 68-69, 106 *558 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). The Court must inquire "whether respondent by her conduct indicated that the alleged [sexual harassment was] unwelcome . . ." Meritor, 477 U.S. at 68, 106 S.Ct. 2399. Albero's own behavior is relevant in deciding "unwelcomeness." See id. at 69, 106 S.Ct. 2399. The record shows that Albero was a willing participant in many of the episodes, e.g. discussing her own sex life, supplying a pornographic video, and giving sexually-oriented gag-gifts, that she contends were harassing. Furthermore, there is no evidence that Albero complained about any of the alleged incidents until she filed her first EEOC charge in March 2003. The Zoo did not receive notice of the charge until June 2003.[38] In April 2003, she filed a grievance with the City. The City immediately launched an investigation at the Zoo with a team that included two outside investigators.[39] Looking at the totality of the circumstances, Albero has failed to present evidence from which a reasonable jury could find that the allegedly harassing behavior was "unwelcome." 3. "Severe and Pervasive" "To be actionable, sexual harassment must be sufficiently `severe and pervasive' to alter the conditions of employment and create an abusive working environment." Raley v. Bd. of St. Mary's Cty. Comm'rs, 752 F.Supp. 1272, 1281 (D.Md.1990). The standard is both objective and subjective: a reasonable person would find the environment hostile and abusive, and the plaintiff "in fact perceived it to be so." Faragher v. City of Boca Raton, 524 U.S. 775 at 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).) To make this determination, the Court must examine: (i) the frequency of the discriminatory conduct; (ii) the severity of the conduct; (iii) whether the conduct is physically threatening or humiliating, and (iv) whether the conduct unreasonably interferes with the employee's work performance. Id. at 787-88, 118 S.Ct. 2275. Albero does not allege that Rapp or anyone else at work propositioned her, touched her inappropriately, or made sexual comments in an effort to humiliate her because they knew she would be offended. Nor does she allege that her female colleagues were subjected to such direct misconduct. Offensive touching or propositioning is not required, however, for a hostile work environment. A worker cannot be forced to endure an atmosphere freighted with sexual references and inappropriate sexual content. See e.g. Meritor, 477 U.S. at 73, 106 S.Ct. 2399 (finding a cause of action for hostile work environment claims when there had been no tangible employment action). If that is the complaint, however, then the sexual overlay must be pervasive and severe. Isolated incidents are not enough. Here, Albero does not say how frequently the objectionable conduct occurred. In other words, she does not attempt to meet the pervasiveness requirement. Her examples come from the 18 years during which she worked at the Zoo. She is vague about dates, and it is unclear whether these incidents were an everyday occurrence or relatively rare. Nor has she shown that the conduct was *559 particularly severe. Moreover, Albero not attempted to show that any of this activity was threatening or humiliating, or that it interfered with her work performance at all. By requiring that the misconduct must be "severe and pervasive," the Supreme Court sought to prevent Title VII from becoming a "general civility code." Faragher, 524 U.S. at 788, 118 S.Ct. 2275. This prong of the test is meant to "filter out . . . the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Id. (internal citations omitted). Again, Albero is unable to produce evidence sufficient to meet this part of her prima facie case. 4. Liability imputed to employer In a hostile work environment claim, liability is generally imputed to the employer. Faragher 524 U.S. at 807, 118 S.Ct. 2275. The employer may, nevertheless, show as an affirmative defense that it "exercised reasonable care to avoid harassment and to eliminate it when it might occur," and that the employee failed to act with "reasonable care to take advantage of the employer's safeguards and otherwise to prevent harm that could have been avoided." Id. at 805, 118 S.Ct. 2275. While not dispositive, an employer's adoption of an anti-harassment policy is important proof that the employer did exercise reasonable care. Smith, 202 F.3d at 244. The City of Salisbury had in place both a sexual harassment policy and a grievance procedure.[40] Albero has not provided any evidence that the City adopted that policy "in bad faith," or that the policy was "otherwise defective or dysfunctional.", See id. at 245 (citing Brown v. Perry, 184 F.3d 388, 396 (4th Cir.1999)). Albero did not take advantage of the City's grievance procedures until April 2003, many months, even years, after the instances of "harassment" of which she complains. She did not, the Court notes, file a grievance until after she had already filed an EEOC charge which contained the same allegations. Until that point, she failed to take advantage of the corrective opportunities the City provided. Her actions do not show "reasonable care to take advantage of the employer's safeguards." Promptly upon the receipt of Albero's grievance letter, the City took steps to investigate her allegations. Although the investigation did not substantiate any of Albero's claims, Rapp was reprimanded for allowing an inappropriate work environment. In addition, the Zoo made sure its employees all had copies of the antiharassment policy. Albero has not produced any evidence from which a reasonable jury could find that Rapp sexually harassed her, or condoned sexually harassing behavior directed at Albero by her coworkers. She also cannot overcome the City's affirmative defense to liability. Accordingly, summary judgment will be granted as to Count I. B. Count III Retaliation To make a prima facie case for retaliation, Albero must produce evidence from which a reasonable jury could find that (1) she engaged in a protected activity; (2) her employer took an adverse employment action against her; and (3) that a causal connection existed between the protected activity and the asserted adverse action. Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir.2004). Albero makes two different retaliation claims.[41] The first is that she was subject to retaliatory harassment after she *560 filed her first EEOC charge.[42] The second is that she was denied the education technician position in retaliation for filing the EEOC charge. Filing the EEOC charge unequivocally meets the first prong of the prima facie case. The Court will analyze the remainder of the test with respect to both allegations. 1. Harassment A claim of retaliatory harassment requires a plaintiff to show "evidence of conduct `severe or pervasive enough' to create `an environment that a reasonable person would find hostile or abusive.'" Von Gunten v. Maryland, 243 F.3d 858, 869-70 (4th Cir.2001) (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367). As with her hostile work environment/sexual harassment claim, Albero is unable to show that any allegedly retaliatory harassment was "severe and pervasive." She had a mediocre employment evaluation and a counseling session to address her negative attitude. Rapp also promulgated new rules with which all employees had to comply. She was reprimanded once for not speaking to her fellow employees. Even taken together, these incidents do not meet the requirement that the retaliatory behavior be "severe and pervasive."[43] Essentially, Albero is asking the Court to step in to second-guess managerial decisions, which the Court cannot do. Many of Albero's allegations "can be attributed to an increase of predictable tension in an office after a discrimination charge is filed. This is not an adverse employment action." Raley, 752 F.Supp. at 1281. 2. The Education Technician position An adverse employment action includes any retaliatory act, but only if that act results in an adverse effect on the "terms, conditions, or benefits" of employment. Von Gunten, 243 F.3d at 865. Albero fails to make showing. She wished to make the lateral transfer to the Education Technician position.[44] Not *561 being chosen for the position, however, had no effect on the terms, conditions, or benefits of her job as a Zookeeper. She continued to be a Senior Zookeeper, under the same terms, conditions, and benefits she had previously enjoyed.[45] Count III, therefore, cannot survive summary judgment and will be dismissed. IV. CONCLUSION For the foregoing reasons, the Court will, by separate Order, GRANT Defendant's Motion for Summary Judgment and DIRECT the Clerk to CLOSE the case. NOTES [1] Letter from Paul Wilber to Kevin Tracy, Def. Ex. 61. (The correspondence is with Albero's attorney, because at this point, she had retained counsel). Albero went on paid FMLA leave in December 2003. Pursuant to City policy, she had to complete a functional capacity evaluation before returning to work. Even after the twelve-week paid leave had expired in April 2004, the City extended her leave status until she could complete the evaluation, in June 2004. Letter from Wilber to Tracy, Def. Ex. 56. The City was willing to accommodate Albero's schedule and choice of doctors, but required the evaluation to assess her ability to return to work. Id. In late April, Albero's counsel advised the City's counsel that Albero would not submit to the functional capacity evaluation in June. Letter from Tracy to Wilber, Def. Ex. 57. The City's attorney wrote back that the City would pay for the evaluation. Letter from Wilber to Tracy, Def. Ex. 58. In late May, Albero's counsel advised the City's counsel that Albero would seek disability retirement, and would drop her ADA claim. Letter from Tracy to Wilber, Def. Ex. 60. [2] Edward Cox, the City's Human Resources Director, and Bonita Fassett, a Pretrial Investigator for the Department of Corrections, were the grievance investigators. Deposition of Edward Cox, Def. Ex. 6, at 73-74. See also Investigation Report, Def. Ex. 18. [3] Investigation Report, Def. Ex. 18. [4] Id. [5] Id. [6] Letter of Reprimand, Def. Ex. 27. [7] Albero's answers to Rapp's Interrogatories, Def. Ex. 23. [8] Photocopy of postcard, Def. Ex. 6.5. The postcard was addressed to "Salisbury Zoological Park." [9] The defendants do not argue a failure to exhaust. Albero's allegations about co-workers, however, may be barred from consideration in this case. An employee cannot file a Title VII case until she has filed an EEOC charge, and the charge frames the scope of future litigation. In Chacko v. Patuxent Institution, the Fourth Circuit held that a plaintiff had failed to exhaust his administrative remedies when the charge referenced different time frames, actors, and discriminatory conduct than the "central factual allegations" in the suit. 429 F.2d 505, 506 (4th Cir.2005). Chacko's EEOC charge complained of specific instances of "hostile treatment" from a supervisor, but at trial he presented evidence that his coworkers constantly subjected him to national origin epithets. Id. at 507-08. The Fourth Circuit reversed a jury verdict in favor of Chacko. In her EEOC charge, Albero contended only that she had been harassed by Rapp and Samis, and that she found their alleged sexual relationship offensive. She did not claim that any other employees harassed her. In this suit, the Court could consider Albero's claims if "a reasonable investigation of the administrative charge would have uncovered the factual allegations in the formal litigation." Id. at 512. The Court need not hypothesize about the scope of a reasonable EEOC investigation, however. With or without the actions of her co-workers other than Samis and Rapp, the alleged harassment does not amount to severe or pervasive conduct. See infra. [10] See generally, Albero Dep., 125-142. [11] Albero Dep. at 127, 133. [12] Albero Dep. at 117. [13] Albero Dep. at 140-141. [14] Albero Dep. at 124. [15] Jennifer Albero's answers to Zoo's interrogatories, Def. Ex. 9. [16] Jennifer Albero's answers to Rapp's interrogatories. Def. Ex. 23. [17] Albero's answers to Zoo's interrogatories, Def. Ex. 9. [18] Albero's answers to Rapp's Interrogatories, Def. Ex. 23. [19] Deposition of Jennifer Albero, at 114-115. ("Albero Dep.") [20] Employee Performance Appraisal, Def. Ex. 4. Albero had also complained of Rapp's favoritism toward Samis in a Workplace Questionnaire in January 2002, Def. Ex. 1. [21] The commentary says, "Needs to be more positive and tolerant of others." (Def.Ex. 4). [22] The commentary says, "does good animal work but attitude needs to improve (was originally a 3 but after discussion with Jim [Rapp] I agree with change [Muir] )." Employee Performance Appraisal, Def. Ex. 4. [23] Albero objected to her evaluation in a letter to Rapp, sent May 30th. (Def.Ex. 4). In the letter she objected that Rapp unfairly characterized her as a malcontent who "cornplain[s] about everything." It bears mention that Albero's complaints did not relate to sexual harassment. Instead she had criticized the Zoo's relationship with the public and the mistreatment of the animals. [24] Def. Ex. 10. In his deposition, Rapp explained that he scheduled the counseling session "because we identified things in the first evaluation in May [2002] that I don't think, really, we had seen that much improvement." Deposition of James Rapp, Def. Ex. 5, at 199. ("Rapp Dep.") [25] Record of Counseling, Def. Ex. 10. [26] Id. [27] Albero's answers to Zoo's interrogatories, Def. Ex. 9. She says it was to pressure her to "cease complaining about zoo management." [28] Memorandum Regarding Workplace Standards, Def. Ex. 11. Albero refused to sign a paper acknowledging receipt of this memorandum. [29] Memorandum from Jim Rapp to Jennifer Albero, Def. Ex. 34. [30] EEOC Charge Statement, Def. Ex. 15. [31] Grievance Letter, Def. Ex. 17. [32] Her complaint also alleged intentional infliction of emotional distress, respondeat superior, and negligent supervision, but she withdrew those claims with the Court's permission. Count I and Count III are the only remaining claims. [33] Letter from Carrie Samis to Jennifer Albero, Def. Ex. 31. [34] Second EEOC Charge Statement, Def. Ex. [35] Albero sued Rapp individually. Supervisors are not individually liable for Title VII violations. See Lissau v.Southern Food Serv., Inc., 159 F.3d 177, 181 (4th Cir.1998). Rapp is entitled to summary judgment on that basis alone. [36] In her Response to the Motion for Summary Judgment (Docket No. 33), Albero seems to include facts that allege a genderbased disparate treatment claim in addition to her claim for sexual harassment. Albero's complaint does not state a claim for disparate treatment, however. Furthermore, many of her allegations involve the treatment of her female colleagues and not herself. These allegations are irrelevant: "An individual plaintiff in a private, non-class action alleging employment discrimination is not litigating common questions of fact, but the discrete question of whether the employer discriminated against the plaintiff in a specific instance." Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 190 (4th Cir.2004) (citing Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998), vacated on other grounds 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999)). Otherwise, Albero points to decisions made by the management that she felt deprived her of her authority as a Zookeeper. These acts, however, are not in Title VII's purview. The statute does not cover all "unfair or unprofessional" treatment, and does not "prohibit employment decisions based on other factors such as job performance, erroneous evaluations, personality conflicts or even unsound business practices." Porter v. Nat'l Con-Sere, Inc., 51 F.Supp.2d 656, 659-60 (D.Md.1998) (citing Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1109 (8th Cir. 1998)). The Court takes into account facts alleged about Albero's treatment as part of her hostile work environment claim, but finds that she has not produced evidence to survive summary judgment on a disparate treatment claim. [37] Rapp Dep. at 117; Deposition of Carrie Samis, Def. Ex. 8, at 38-39, 86. [38] EEOC Notice of Charge of Discrimination, Def. Ex. 15. [39] As described above, their report, filed in June, found a sexually inappropriate environment at the Zoo, but did not substantiate any of Albero's claims. Nevertheless, Zoo management recommended that Rapp be reprimanded for allowing the inappropriate environment. [40] City of Salisbury Maryland Employee Handbook, § 0610, § 0903, § 0904. [41] In her response to the motion for summary judgment, (Docket No. 33), Albero seeks to sweep into her retaliation claim conduct that occurred relating to her back injury. For example, she cites the City's request that she take leave under the FMLA and her termination in July 2004 as retaliatory conduct. These disputed matters, however, relate to her 2003 back injury and her ability to perform her work duties after that injury. Accordingly, the only potential "causal connection" is between that conduct and her ADA claim, which Albero withdrew from this case. The Court, therefore, will not consider them and offers no opinion as to whether the ADA proscribes those actions. [42] In her first EEOC charge, Albero alleged retaliation for complaining about the treatment of animals at the Zoo. This behavior is not protected under Title VII. The Court also notes that in her retaliation claim, Albero is not alleging retaliatory sexual harassment. Management disallowed all inappropriate behavior after Albero filed her grievance. Albero contends that Rapp and others deliberately made her working environment more difficult. [43] Neither the mediocre evaluation nor the counseling session that followed constitutes an adverse employment action. Neither had an effect on the terms, benefits, or condition of her employment. For example, Albero was not demoted or denied a raise because of them. Moreover, these two events occurred between January 2002 and January 2003, before she filed her EEOC charge and grievance letter. Accordingly, they cannot be said to be in retaliation for her complaints of sexual harassment. Nor do Albero's complaints in the January 2002 Workplace Evaluation and in her May 2002 self-review qualify as "protected activity" under Title VII. She complained of favoritism, but made no allegations of sexual harassment or gender discrimination. Making general workplace complaints is not protected activity. [44] It does not appear that this position was a promotion. The pay was $10,000 less than what Albero was making as a Senior Zookeeper. Advertisement for Education Technician position, Def. Ex. 22. [45] Even assuming, arguendo, that this was an adverse employment action, Albero cannot show that the failure to hire her was retaliatory. Once a plaintiff has shown an adverse employment action, the burden shifts to the employer to show a legitimate, non-retaliatory reason for not hiring her. See Smith, 202 F.3d at 248. The plaintiff must then show that reason is pretextual by demonstrating "both that the reason was false and that [retaliation] was the real reason for the challenged conduct." Id. (emphasis added; internal citations omitted). The hiring team stated that the woman they hired was the most qualified for the position: she has a bachelor's degree, teaching experience, and enthusiasm for working with the public. Had Albero gotten the position, Samis would have been her supervisor. Samis also felt that her past personality conflicts with Albero weighed against Albero's candidacy. In addition, Albero stated in the January 2002 Workplace Questionnaire (Def.Ex. 1) that working with the public was the aspect of her job that she disliked the most. Working with the public was at the core of the Education Technician position. Albero has not shown that these legitimate reasons were merely a pretext for retaliation.

810 S.W.2d 515 (1991) STATE of Missouri, ex rel. Gregory UPCHURCH, Appellant, v. Roy D. BLUNT, in his capacity as Secretary of State of the State of Missouri, and William L. Webster, in his capacity as Attorney General of the State of Missouri, Respondents. No. 73376. Supreme Court of Missouri, En Banc. June 5, 1991. Gregory Upchurch, pro se. William L. Webster, Atty. Gen., James B. Deutsch, Deputy Atty. Gen., Simon B. Buckner, Asst. Atty. Gen., Jefferson City, for respondents. COVINGTON, Judge. Relator Gregory Upchurch appeals the dismissal by the Circuit Court of Cole County of his petition for a writ of mandamus against the Secretary of State of Missouri and for a judgment of declaration that § 116.332.1, RSMo 1986,[1] is unconstitutional. Reversed. Relator sought to circulate for signatures an initiative petition to place a proposed amendment to the Missouri Constitution on the ballot for the November 4, 1992, general election. On November 13, 1990, relator submitted a sample petition to Secretary of State Roy D. Blunt. Section 116.332.1 requires that, before a constitutional amendment petition may be circulated for signatures, a sample sheet be submitted to the secretary of state in the form in which the petition will be circulated, for approval by the secretary of state. On the day of receipt of the sample petition, the secretary of state notified relator that the secretary could not accept the sample petition because "[f]or the November, *516 1992 general election the earliest a sample petition may be submitted for approval is July 3, 1991." The secretary of state relied upon a subsequent requirement of § 116.332.1 that provides: "The sample petition may not be submitted to the secretary of state more than one year prior to the final date for filing the signed petition with the secretary of state." Relator instituted this proceeding in the circuit court on November 29, 1990. The gravamen of his claim is that the one year limitation of § 116.332.1 is inconsistent with the reservation of the initiative power to the people in Article III, § 49, of the Missouri Constitution. Respondents moved to dismiss claiming inappropriateness of mandamus to litigate the action, absence of a justiciable controversy, and constitutionality of the subject statutory provision. The trial court dismissed relator's petition. The basis for the dismissal is not evident from the record.[2] This Court reviews the matter as an appeal from the dismissal of relator's petition for declaratory judgment. The case involves the validity of the one year limitation contained in § 116.332.1. This Court has jurisdiction. Mo. Const. art. V, § 3. Rules employed in construction of constitutional provisions are the same as those employed in construction of statutes. Crucial words must be viewed in context, and courts must assume that words were used purposefully. The selection of words as arranged by the drafters is indicative of the significance of the words employed. Boone County Court v. State, 631 S.W.2d 321, 324 (Mo. banc 1982). This Court is required to give due regard to the primary objectives of the constitutional provision under scrutiny, as viewed in harmony with all related provisions. State ex inf. of Martin v. City of Independence, 518 S.W.2d 63, 66 (Mo.1974). If a statute conflicts with a constitutional provision or provisions, this Court must hold that the statute is invalid. Rekart v. Kirkpatrick, 639 S.W.2d 606, 608 (Mo. banc 1982). The analysis begins with the people's reservation to themselves of the "power to propose and enact or reject laws and amendments to the constitution by initiative, independent of the general assembly... except as hereinafter provided." Mo. Const. art. III, § 49. Although the constitution first reserves to the people the initiative power, the constitution by subsequent provisions involves the general assembly in the procedure of submitting initiatives. In submitting initiatives to the people, "the secretary of state and all other officers shall be governed by general laws." Mo. Const. art. III, § 53. All amendments proposed by the initiative "shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law...." Mo. Const. art. XII, § 2(b). These provisions require the application of general law, as enacted by the general assembly, to the process of submitting initiatives to the people. Presumably under authority of these constitutional provisions, the general assembly enacted laws contained in Chapter 116 relating to initiative and referendum, including § 116.332.1, at issue here. Seeking to sustain the constitutionality of the subject statute, respondents assert that, absent constitutional direction as to the length of time during which proponents of a petition may circulate for signatures, either there is no limitation on the circulation period or the limitation must be supplied from another source. Respondents argue that, since no constitutional direction exists, the general assembly through § 116.332.1 properly supplies a limitation on the circulation period. Respondents appropriately note that a legislative body's power to enact reasonable implementations of a constitutional directive is generally recognized. Respondents also correctly contend that the Missouri General Assembly generally possesses plenary power to enact legislation, and that the legislature *517 frequently enacts time limitations to implement constitutional language. Respondents contend that the Missouri scheme is consistent with that of other states and that the history of the adoption of the initiative procedures reflects that the general assembly was expected to enact implementing legislation. As respondents forthrightly acknowledge, each of their arguments rests upon their stated premise that the constitution is silent on the question of the period of time in which petitions can be circulated for signatures. That premise is faulty. The constitution does provide a limited period. Constitutional provisions relating to the period of time during which petitions may be circulated for signatures are clearly framed by reference to general elections and the periods between them. The final date for obtaining signatures is established by Mo. Const. art. III, § 50: Initiative petitions proposing amendments to the constitution must be "filed with the secretary of state not less than four months before the election...." (Emphasis added). Article XII, § 2(b), fixes the date before which signatures may not be obtained: "All amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law, on a separate ballot without party designation, at the next general election, or at a special election called by the governor prior thereto, at which he may submit any of the amendments." (Emphasis added). Under this provision, unless a special election is called by the governor, an amendment is submitted at the next general election, and the time in which to submit the sample petition is effectively limited only by the period between general elections. Concomitantly, it is clear that the constitution permits submission of sample initiative petitions to the secretary of state from any time after one general election until four months prior to the next general election. Although the authority is not semantically explicit, the constitutional provisions are nonetheless plain in meaning. Respondents' arguments, therefore, necessarily fail because the constitution does provide a period in which the petitions can be circulated. Any limitation of the period authorized is in conflict and invalid. That part of § 116.332.1 that limits submission to the secretary of state of a sample petition to one year prior to the final date for filing the signed petition with the secretary, and thereby shortens the time authorized by the constitution during which the constitutional amendment petition may be circulated for signatures, is invalid. The judgment is reversed. BLACKMAR, C.J., and ROBERTSON, RENDLEN, HIGGINS, HOLSTEIN, JJ., and TURNAGE, Special Judge, concur. NOTES [1] All statutory references are to RSMo 1986, unless otherwise indicated. [2] Respondents contend that the trial court did not decide this case on the merits and declare that they reserve the right to assert additional defenses at a later time. Respondents' position on the merits is ably and comprehensively presented, and this Court is sufficiently prepared to construe the relevant constitutional provisions and the statute at issue.

178 F.2d 920 Petition of SCHUETTE. No. 96, Docket 21467. United States Court of AppealsSecond Circuit. Argued Dec. 14, 1949.Decided Dec. 29, 1949. J. Vincent Keogh, United States Attorney, Brooklyn, N.Y., Frank J. Parker, Chief Assistant United States Attorney, and Edward S. Szukelewicz, Assistant United States Attorney, Brooklyn, N.Y., of counsel, for appellant United States of America. Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges. PER CURIAM. 1 The order of the court below admitting the appellee to citizenship was entered on February 19, 1948. The amendment to Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., changing the time within which an appeal to the United States Court of Appeals may be taken from three months to sixty days in cases where the United States is a party became effective on March 19, 1948. The government took no appeal until May 10, 1948, or about eighty-one days after the entry of the original order. It seeks to be excepted from the shortened time provided by the amendment for taking its appeal because of Rule 86(b) of the Federal Rules of Civil Procedure which limits it to the time prescribed by the amendment except to the extent that in the opinion of the court the application of the shortened time to a 'particular action pending when the amendments take effect would not be feasible or would work injustice.' It is not claimed that the government was not aware of the new rule, but only that its activities were too numerous or its departments too busy to make a final decision whether to take the appeal prior to the time when it was finally taken. After the new rule became effective the government still had thirty days in which to make its decision and, as it knew the law and the facts, it was not in our opinion entitled to exemption from application of the new rule. It in fact waited for eighty-one days after the entry of the judgment, and about fifty-two days after the amendment to Rule 73(a) became effective, before acting. We can see no excuse for such a delay, and regard the situation as substantially different from that which we dealt with in McAllister v. Cosmopolitan Shipping Co., 2 Cir., 169 F.2d 4, where the application of the new rule would have given the appellant only about a week within which to take his appeal. The situation here resembles that in the case of Smith v. Lehigh Valley R. Co., 2 Cir., 174 F.2d 592, in which we declined to extend the appellant's time under Rule 86(b). 2 The appeal is accordingly dismissed.

565 F.Supp. 430 (1983) Phill Elvin GRANT, Jr., Plaintiff, v. Robert Grant PITCHFORD, et al., Defendants. Civ. No. 81-0629-G(M). United States District Court, S.D. California. May 2, 1983. Leyon D. Sakey, Susan Hildebrand, San Diego, Cal., for plaintiff. Peter K. Nunez, U.S. Atty., Peter W. Bowie, Chief Asst. U.S. Atty., San Diego, Cal., for defendants. MEMORANDUM DECISION GILLIAM, District Judge. On June 5, 1981, plaintiff Grant caused to be filed in the Superior Court for the State of California a "complaint for damages for assault & battery, conspiracy, dereliction of duty & intentional infliction of emotional distress." Named as defendants in that complaint were Robert Grant Pitchford, John F. Kelley, William C. Hughes, Jr., and some fictitiously named persons. The first cause of action in plaintiff's complaint alleged that defendant Pitchford committed a battery upon plaintiff by striking plaintiff with a hammer. In that same cause of action, plaintiff also alleged that defendant Kelley ratified the acts of defendant Pitchford by failing to take any action against him. Further, Mr. Grant alleged that defendant Hughes authorized the acts of defendant Pitchford "by allowing *431 him to continue in a position of authority even though defendant Hughes knew or should have known" of defendant Pitchford's alleged violent propensities. The second cause of action set out in plaintiff's state court complaint alleged that defendants Hughes and Kelley "conspired ... to take no action" to stop defendant Pitchford or to punish him for his alleged conduct. Plaintiff Grant also alleged that defendant Hughes ratified defendant Pitchford's alleged acts by not reporting them to superiors. Plaintiff's third cause of action alleged that defendant Hughes negligently supervised defendant Pitchford and that the breach of that duty owed to plaintiff resulted in the injuries he allegedly sustained. Following delivery of the state court process to one or more of the defendants, on July 8, 1981 counsel for defendants filed a petition for removal of the suit to this court. The petition recited in relevant part that defendant Hughes was at all pertinent times a member of the Armed Forces serving as the Commanding Officer of the USS FLASHER (SSN 613). Removal authority and jurisdiction was therefore invoked under 28 U.S.C. §§ 1442, 1442a. Subsequently, the defendants filed a motion to dismiss or for summary judgment. In that motion the defendants first made it a matter of record that plaintiff Grant was a third class petty officer in the U.S. Navy, on active duty and stationed aboard the USS FLASHER. The moving papers set forth that defendant Hughes was Commanding Officer of the FLASHER; established that defendant Kelley was a junior officer on board the FLASHER; and showed that defendant Pitchford was the Chief of the Boat aboard the FLASHER. Lastly, the moving papers disclosed that the alleged acts, to the extent of their actual occurrence, happened on board the FLASHER while it was underway and entering port. Because of the foregoing facts, the essence of the defendants' motion was that plaintiff's suit was barred by the doctrine of intra-military immunity as embodied in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and as extended to individual defendants in Bailey v. Van Buskirk, 345 F.2d 298 (9th Cir.1965), cert. denied, 383 U.S. 948, 86 S.Ct. 1205, 16 L.Ed.2d 210 (1966), and Tirrill v. McNamara, 451 F.2d 579 (9th Cir.1971). The defendants argued in their motion that because plaintiff Grant was on active duty in the Navy serving on board the USS FLASHER at the time of the alleged incident the Feres doctrine barred the suit regardless of whether the defendants' conduct was characterized as negligent or intentional. Plaintiff Grant filed no opposition to the defendants' motion. Instead, he caused to be filed a first amended complaint, styled as one "For Violation of Federal Civil Rights; Assault & Battery, Conspiracy, Dereliction of Duty, Intentional Infliction of Emotional Distress." Much of what was alleged in plaintiff's original complaint was repeated, verbatim, in the First Amended Complaint. More to the point, the same conduct of each of the defendants which was urged to support plaintiff's state tort claims in the original complaint is the conduct of which plaintiff complains in his First Amended Complaint, although he now alleges that the conduct was also violative of his constitutional rights. Following service of the First Amended Complaint, the defendants, on December 4, 1981, filed a new motion to dismiss or for summary judgment. In essence, the defendants' position is that plaintiff's First Amended Complaint is an attempt to put a constitutional gloss on what are, in reality, state tort claims, and that plaintiff should not be permitted to evade the rule of Feres v. United States, supra, by engaging in an exercise in artful pleading. Defendants' motion was noticed for hearing before this court on February 22, 1982. On approximately January 27, 1982 plaintiff caused to be filed and noticed for hearing before Magistrate McCue motions for a continuance, to compel attendance at a deposition, and to compel production of certain documents. Those motions were noticed *432 for hearing on February 16, 1982. Plaintiff contended, in essence, that there was discovery he needed to counter the defendants' motion set before this court. Defendants, in turn, obtained an order shortening time and filed and served a motion for protective order which was heard by Magistrate McCue on February 3, 1982. The defendants contended that none of the discovery sought by plaintiff related to any of the issues raised by the motion to dismiss or for summary judgment. Because the discovery was not relevant to those issues, and because the motion to dismiss, if granted, would be dispositive of the case, said the defendants, discovery should be stayed pending resolution of the dispositive motion unless the plaintiff could show how the discovery was necessary to respond to the motion. Magistrate McCue agreed with the defendants' position and ordered that the requested discovery not go forward pending resolution of the motion to dismiss. Subsequently, plaintiff withdrew his motions for continuance and to compel attendance at the proposed deposition. The defendants' motion to dismiss or for summary judgment thereafter came on regularly for hearing before this court on February 22, 1982. For the reasons set out hereafter, the court finds that the defendants' motion is well taken and should be granted. In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) the Supreme Court held that a serviceman who is injured as a result of the negligence of fellow servicemen and "the injuries arise out of or are in the course of activity incident to service ..." will not be permitted to sue the United States under the Federal Tort Claims Act. That rule continues in full force. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); Uptegrove v. United States, 600 F.2d 1248, 1251 (9th Cir.1979), cert. denied, 444 U.S. 1044, 100 S.Ct. 732, 62 L.Ed.2d 730 (1980). It has long been recognized by the Ninth Circuit Court of Appeals, as well as by other courts, that the rationale of the Feres rule applies as much to suits brought by injured servicemen against individual federal employees as it does to suits against the United States. Bailey v. Van Buskirk, 345 F.2d 298 (9th Cir.1965), cert. denied, 383 U.S. 948, 86 S.Ct. 1205, 16 L.Ed.2d 210 (1966); Tirrill v. McNamara, 451 F.2d 579 (9th Cir.1971); Calhoun v. United States, 475 F.Supp. 1 (S.D.Cal.1977), aff'd per curiam, 604 F.2d 647 (9th Cir.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 761 (1980); Bailey v. De Quevedo, 375 F.2d 72 (3d Cir.1967), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967); Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1152 (5th Cir.1981). Central to a determination of whether the Feres rule applies in any particular case is whether the plaintiff sustained the claimed injuries incident to his military service. A review of the applicable cases discloses that resolution of this inquiry turns, in essence, upon whether at the time he sustained the injury the plaintiff was where he was because of his relationship to the military. See Uptegrove v. United States, supra; Shults v. United States, 421 F.2d 170 (5th Cir.1969); Vallance v. United States, 574 F.2d 1282 (5th Cir.1978); Veillette v. United States, 615 F.2d 505 (9th Cir.1980); Chambers v. United States, 357 F.2d 224 (8th Cir.1966); Stansberry v. Middendorf, 567 F.2d 617 (4th Cir.1978); Camassar v. United States, 531 F.2d 1149 (2d Cir.1976). In the instant case, it is undisputed that plaintiff was on active duty aboard the USS FLASHER while it was underway at the time of the alleged incident. In other words, plaintiff was where he was at the time of the incident precisely because of his military relationship. It is also undisputed that each of the defendants was similarly on active duty aboard USS FLASHER at the time of the alleged event. Accordingly, the court finds that the elements of the Feres rule have been met and that if the rule applies at all, it applies to bar the instant suit. Plaintiff argues, however, that the Feres rule should not be applied in the instant case because plaintiff has, in his First *433 Amended Complaint, asserted his claims as violations of the Constitution of the United States, to which he contends the Feres rule does not apply. In so arguing, plaintiff relies on the recent decision in Wallace v. Chappell, 661 F.2d 729 (9th Cir.1981). Plaintiff has, indeed, attempted to recast his claims as violations of the Constitution. However, such efforts are unavailing. Where, as here, a plaintiff's theory of constitutional deprivation is simply a "restatement" of a state tort cause of action, courts have generally declined to recognize a constitutional cause of action. Calhoun v. United States, 475 F.Supp. 1 (S.D.Cal.1977), aff'd per curiam, 604 F.2d 647 (9th Cir. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 761 (1980); Misko v. United States, 453 F.Supp. 513 (D.D.C.1978), aff'd, 593 F.2d 1371 (D.C.Cir.1979). In so holding, the courts have been mindful of the instruction of the Supreme Court in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). In that case, a plaintiff urged that a state tort claim for defamation really constituted a deprivation of a constitutionally protected right. In rejecting that contention, the Court wrote: But such a reading would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States. We have noted the "constitutional shoals" that confront any attempt to derive from congressional civil rights statutes a body of general federal tort law, Griffin v. Breckenridge, 403 U.S. 88, 101-102 [91 S.Ct. 1790, 1797-1798, 29 L.Ed.2d 338] (1971); a fortiori, the procedural guarantees of the Due Process Clause cannot be the source for such law. 424 U.S. at 701, 96 S.Ct. at 1160. Comparison of plaintiff's original complaint filed in state court with the First Amended Complaint now before this court discloses that both are virtually identical, particularly in terms of the alleged conduct of the defendants. The court concludes that plaintiff has simply attempted to recast traditional state tort claims as constitutional violations. Under the circumstances of this case, no constitutional claim is alleged sufficient to support a cause of action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The recent decision of Wallace v. Chappell, 661 F.2d 729 (9th Cir.1981) does not compel a contrary conclusion. Rather, the Wallace court itself recognized the foregoing when it wrote: With respect to constitutional claims, therefore, our adoption of the Mindes [v. Seaman, 453 F.2d 197 (5th Cir.1971)] test is limited to cases in which the plaintiff has alleged what the Calhoun court described as a "recognized" constitutional right. We do not mean by this term to eliminate from consideration those constitutional claims that have not yet been accepted by the courts. We mean only that the allegations must amount to more than a traditional state law claim. 661 F.2d at 734. Having concluded that plaintiff has alleged only traditional state tort claims, although he has attempted to recast them as constitutional violations, it is clear that Wallace v. Chappell, supra, is not applicable to the instant case. Inasmuch as defendants have established through uncontroverted declarations that plaintiff's alleged injuries were sustained incident to his military service on board USS FLASHER, and since there is no bar to application of the Feres rule to what are, in essence, state tort claims, the court finds that the Feres rule bars the instant suit. Accordingly, defendants' motion to dismiss is granted. Stanley v. Central Intelligence Agency, 639 F.2d 1146 (5th Cir.1981). Alternatively, it has been established that defendants are entitled to judgment as a matter of law based upon their uncontroverted declarations and the applicable law. Therefore, defendants' alternative motion for summary judgment is granted as well.

Filed 7/31/19 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE L’CHAIM HOUSE, INC. et al., Plaintiffs and Appellants, A152975 v. DIVISION OF LABOR STANDARDS (Sonoma County ENFORCEMENT, Super. Ct. No. SCV-259820) Defendant and Respondent. Plaintiffs L’Chaim House, Inc. and its owner, Cary Kopstein (collectively, L’Chaim), operate residential care homes for seniors. L’Chaim was cited for wage and hour violations by defendant Division of Labor Standards Enforcement (DLSE). After an unsuccessful administrative appeal, L’Chaim initiated this action by filing a petition for a writ of administrative mandamus under Code of Civil Procedure section 1094.5, which the trial court denied. On appeal, L’Chaim claims that under the applicable Industrial Welfare Commission (IWC) wage order, it may require its employees to work “on-duty” meal periods that, unlike periods when employees are “relieved of all duty,” do not need to be at least 30 minutes long. (IWC wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050) (hereafter Wage Order No. 5), subd. (11)(A), (E).) We hold that, to the contrary, L’Chaim must provide meal periods of at least 30 minutes, regardless of whether they are on-duty or off-duty, under Wage Order No. 5 and the applicable statutory law. We therefore affirm. 1  I. FACTUAL AND PROCEDURAL BACKGROUND Because this appeal presents a pure question of law, we need not discuss the underlying facts in detail. Briefly, in February 2016, the DLSE issued wage and penalty citations to L’Chaim, which operates two 24-hour residential care homes in San Rafael for seniors. The citations were for, among other things, failing to provide 30-minute meal periods under Wage Order No. 5, which governs the public housekeeping industry. A hearing officer affirmed the citations, which included a total of approximately $89,000 in premium-pay and penalty assessments under Labor Code sections 226.7 and 558 for failure to provide 30-minute meal periods to employees. 1 In December 2016, L’Chaim filed the instant action, challenging only the conclusion that it failed to provide meal periods as required. The following September, the trial court denied the writ petition. It concluded that even though L’Chaim was authorized to provide on-duty, as opposed to off-duty, meal periods to its employees, those meal periods still had to be at least 30 minutes long. II. DISCUSSION A. The Standard of Review and Governing Law. A writ of administrative mandamus may be sought on the basis that the agency engaged in a “prejudicial abuse of discretion. Abuse of discretion is established if the [agency] has not proceeded in the manner required by law.” (Code Civ. Proc., § 1094.5, subd. (b).) “Generally, whether an agency has proceeded lawfully is a legal question that the trial court and appellate court both review de novo.” (Stewart Enterprises, Inc. v. City of Oakland (2016) 248 Cal.App.4th 410, 420.) We agree with the parties that L’Chaim’s sole claim—that the on-duty meal breaks authorized by subdivision 11(E) of Wage Order No. 5 do not need to be least 30 minutes long—presents an issue of statutory 1 All further statutory references are to the Labor Code unless otherwise noted. 2 interpretation that we review de novo. (See Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.) “We apply the usual rules of statutory interpretation to the Labor Code, beginning with and focusing on the text as the best indicator of legislative purpose. [Citation.] ‘[I]n light of the remedial nature of the legislative enactments authorizing the regulation of wages, hours[,] and working conditions for the protection and benefit of employees, the statutory provisions are to be liberally construed with an eye to promoting such protection.’ ” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026–1027 (Brinker).) Similarly, when, as here, “a wage order’s validity and application are conceded and the question is only one of interpretation, the usual rules of statutory interpretation apply,” and the wage order “must be interpreted in the manner that best effectuates [the] . . . intent [to protect workers].” (Id. at p. 1027.) “To the extent a wage order and a statute overlap, we will seek to harmonize them, as we would with any two statutes.” (Ibid.) Wage Order No. 5, subdivision 11(A) provides, “No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an ‘on duty’ meal period and counted as time worked. An ‘on duty’ meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.” Subdivision 11(E) of Wage Order No. 5 creates an exception for “employees of 24 hour residential care facilities for the elderly,” which the DLSE concedes applies to L’Chaim’s employees. Under that provision, such employees “may be required to work on-duty meal periods without penalty when necessary to meet regulatory or approved 3 program standards and one of the following two conditions is met: [¶] (1) [¶] (a) The residential care employee[] eats with residents during residents’ meals and the employer provides the same meal at no charge to the employee; or [¶] (b) The employee is in sole charge of the resident(s) and, on the day shift, the employer provides a meal at no charge to the employee.” (Wage Order No. 5, subd. 11(E).) In 1999, the Legislature regulated meal periods for the first time by passing section 512, which “made meal periods a statutory as well as a wage order obligation.” (Brinker, supra, 53 Cal.4th at pp. 1036–1037.) Before that, “an employer’s meal periods were governed solely by the language of the IWC’s wage orders.” (Id. at p. 1034.) “The declared intent in enacting section 512,” which was done in response to the IWC’s “weakening of employee protections” in certain wage orders, “was not to revise existing meal period rules but to codify them in part.” (Id. at pp. 1037–1038.) Under the statute, “[a]n employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.” (§ 512, subd. (a).) 2 B. The On-duty Meal Periods Authorized by Subdivision 11(E) Must Be at Least 30 Minutes Long. L’Chaim’s claim that it does not have to provide on-duty meal periods that are 30 minutes long rests on a fundamental misreading of subdivision 11 of Wage Order No. 5. As noted above, subdivision 11(A) states that “[u]nless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an ‘on duty’ meal period and counted as time worked.” L’Chaim interprets this language to “contemplate[] instances where an employee’s meal period may be less than 30 minutes,” in which case subdivision 11(A) “does not extend the meal period until a full 2 Effective January 1, 2019, the word “shall” was substituted for “may” (Stats. 2018, ch. 48, § 1), but the quoted language has otherwise remained the same since 1999. (See Stats. 1999, ch. 134, § 6; Brinker, supra, 53 Cal.4th at p. 1037, fn. 16.) 4 uninterrupted 30 minutes is realized” or “require a tolling of the 30-minute meal period while the employee carries out some of his or her duties.” We do not follow this reasoning. If an employee is entitled to an off-duty meal period of 30 minutes, yet work obligations intrude on a portion of that time, the off-duty period is converted to an on- duty period—no matter how small the portion of the period that work intruded upon— and the employee is paid for the entire period. There is no suggestion that once work interrupts an employee’s meal period, the period simply ends even if 30 minutes have not yet passed. Thus, we cannot agree with L’Chaim that the trial court’s determination that its employees are entitled to an on-duty meal period of at least 30 minutes equates to an “imputation of a 30-minute uninterrupted meal period into an ‘on-duty’ meal period.” The court’s order says no such thing. Instead, it merely concludes that an employee subject to subdivision 11(E) is still entitled to a 30-minute meal period even though that meal period may be on-duty instead of off-duty. What L’Chaim misunderstands is that an on-duty meal period is not the functional equivalent of no meal period at all. On-duty meal periods are an intermediate category requiring more of employees than off-duty meal periods but less of employees than their normal work. Recognizing this, the trial court stated that even if L’Chaim’s employees were not entitled to “an uninterrupted meal period,” they “may at least be afforded 30[] minutes of limited duty enabling them to eat their meal in relative peace.” L’Chaim attacks the notion that its “employees may be given ‘limited duty’ while on a meal break” as creating “several absurd consequences.” According to L’Chaim, because employees do not clock out for on-duty meal periods, there is no way to track the length of those periods. In addition, “the creation of a new ‘limited duty’ requirement to [Wage Order No. 5, subdivision 11(E)] would force employers to delineate which tasks an employee is expected to perform during his or her on-duty meal period,” which L’Chaim claims “would be difficult and even potentially dangerous for the residents.” But any such practical challenges are inherent in providing “on-duty meal periods” at all, not just periods of a particular length. Moreover, the question presented here is 5 whether an on-duty meal period must be at least 30 minutes long, not how courts might evaluate the adequacy of the period under different factual scenarios. Thus, while we do not address what constitutes an acceptable on-duty meal period in the context of this case, what we can say is that employees of 24-hour residential care facilities for seniors are unambiguously entitled to “on-duty meal periods” under subdivision 11(E). L’Chaim’s interpretation would effectively read that requirement out of Wage Order No. 5. L’Chaim also seizes on broad language in an appellate decision and a DLSE opinion letter that it claims supports its position. In Palacio v. Jan & Gail’s Care Homes, Inc. (2015) 242 Cal.App.4th 1133 (Palacio), the Fifth District Court of Appeal considered the interplay between subdivisions 11(A) and 11(E). Subdivision 11(A) is a general provision that allows employers and employees to agree that meal periods will be on-duty and to revoke these voluntary agreements at any time. (Palacio, at p. 1139.) Subdivision 11(E), in contrast, “enables employers to require employees to work on-duty meal periods, provided certain conditions are met.” (Ibid.) The Palacio employer required its employees to work on-duty meal periods under subdivision 11(E) and to sign agreements waiving their right to off-duty meal periods. Palacio held that the employer “was not obligated to comply with subdivision 11(A)” by including a provision in the agreements giving the employees the right to revoke them. (Palacio, at pp. 1140–1141.) Similarly, in an October 17, 2016 opinion letter, the DLSE responded to the question “whether a meal period waiver is required to be signed by employees exempt from duty free meal periods under [subdivision 11(E)]” by reference to Palacio. The letter characterized Palacio as holding that the right-to-revoke language is not required in such a waiver “because if a care home meets the requirements of [subdivision] 11(E) it does not also need to comply with [subdivision] 11(A).” L’Chaim argues that the statements in Palacio and the DLSE opinion letter establish that an employer whose employees are covered by Wage Order No. 5, subdivision 11(E) are exempt from complying with any part of subdivision 11(A), including the requirement that meal periods be at least 30 minutes long. We would have to read these statements wholly divorced from their context to accept L’Chaim’s 6 interpretation, and we decline to do so. Subdivision 11(E) creates an exception to subdivision 11(A) by authorizing an employer to mandate on-duty meal periods without the need to reach a revocable waiver agreement with its employees, and Palacio addressed only the portion of subdivision 11(A) that subdivision 11(E) purports to affect, the portion governing waivers of off-duty meal periods. (See Palacio, supra, 242 Cal.App.4th at p. 1139.) It is axiomatic that “ ‘cases are not authority for propositions not considered.’ ” (City of Bellflower v. Cohen (2016) 245 Cal.App.4th 438, 452.) The only reasonable reading of Palacio’s statement is that if a care home meets the requirements of subdivision 11(E) it does not also need to comply with the portion of subdivision 11(A) governing waivers of off-duty meal periods, not subdivision 11(A) as a whole. Finally, even if any doubt remained, we agree with the DLSE that section 512 compels the same conclusion. Under that statute, which L’Chaim does not address in its briefing, an employer is prohibited from “employ[ing] an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes,” unless the employee works no more than six hours in a day and agrees to waive the meal period. (§ 512, subd. (a).) Although section 512 contains exceptions for workers in several industries, none of them apply here. And although the IWC has broad authority to “adopt or amend working condition orders with respect to . . . meal periods . . . for any workers in California consistent with the health and welfare of those workers,” at all relevant times—including when subdivision 11(E) was added to Wage Order No. 5—that authority has been specifically limited “as provided in Section 512.” (§ 516, subd. (a); see Gerard v. Orange Coast Memorial Medical Center (2018) 6 Cal.5th 443, 454–455 [post-2000, IWC cannot “deviate from the meal period requirements of section 512”]; Official Notice, Amends. to §§ 3, 11, 12 of Wage Order No. 5 (Oct. 29, 2001).) Thus, absent a waiver, the statute’s plain terms required L’Chaim to provide “a meal period”—whether off-duty or on-duty—of at least 30 minutes any time an employee worked at least five hours. 7  III. DISPOSITION The judgment is affirmed. Respondent is awarded its costs on appeal. 8  _________________________ Humes, P. J. WE CONCUR: _________________________ Margulies, J. _________________________ Banke, J. L’Chaim House et al. v. Department of Labor Standards Enforcement A152975 9  CONCURRENCE OF BANKE, J. Although I concur in the majority’s opinion, I write separately to emphasize what an exceptionally poor vehicle this case is to discuss the parameters of a lawful “on-duty” meal period and to underscore the narrowness of our holding. First, the employer never raised, until well after the eleventh hour, any exception to the general rule that employees must be provided unpaid, 30-minute “off-duty” meal periods every five hours. 1 (See Gerard, supra, 6 Cal.5th at p. 446 [“Labor Code generally provides that employees who work more than five hours must be provided with a 30-minute meal period”].) The employer raised no exception during the months-long audit, and the citation issued by the Division of Labor Standards Enforcement (DLSE) alleged violations of the general rule, i.e., failing to provide 30-minute “off-duty” meal periods. The employer invoked no exception in response, and instead, requested a hearing. The DLSE then tried the case as one where employees were entitled to, but not provided with, uninterrupted 30-minute “off-duty” meal periods, during which they were free to leave the premises. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1035–1040 (Brinker).) The DLSE thus made a well-focused evidentiary presentation that, during the audit period, the employer had no meal period policies at all, 1 DLSE wage order No. 5-2001 (Wage Order No. 5) provides three exceptions. The first, set forth in subdivision (11)(A), applies when “the nature of the work prevents an employee from being relieved of all duty,” the employee agrees in writing to “on-the- job” paid meal periods, and the agreement specifies the employee can revoke the agreement at anytime. (See, e.g., Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926, 942–943 (Lubin) [discussing the “nature of the work exception”].) The second exception, set forth in Wage Order No. 5, subdivision (11)(D), applies to health care workers who work longer than an eight-hour shift and allows these employees to “waive” their “right to one of their two meal periods,” if they do so in writing and the employee can revoke the waiver on one day’s notice. (See, e.g., Gerard v. Orange Coast Memorial Medical Center (2018) 6 Cal.5th 443 (Gerard) [upholding waiver exception].) The third exception, set forth in Wage Order No. 5, subdivision (11)(E), and the exception at issue here, applies to employees of certain 24 hour residential care facilities, including for seniors, and has a number of requirements as discussed in subsequent paragraphs. (See, e.g., Palacio v. Jan & Gail’s Care Homes, Inc. (2015) 242 Cal.App.4th 1133, 1138–1141 (Palacio) [discussing 24 hour residential care facility exception].) 1 employees did not have uninterrupted half hour meal periods, and employees were not free to leave the premises during meal periods. The employer’s defense was not that any exception to the general rule applied. Rather, the employer maintained employees could, in fact, take 30-minute “off-duty” meal periods and the fact they did not avail themselves of the opportunity could not, under Brinker, subject the employer to liability. Accordingly, the employer focused its evidentiary presentation on trying to undermine the testimony of the two employees who had been called as DLSE witnesses, by calling three other employees who claimed they had ample time to eat and rest, and they could have departed the premises had they desired or needed to do so. In other words, the employer’s defense—that, in fact, employees could take uninterrupted 30-minute “off- duty” meal periods—was wholly inconsistent with the invocation of any exception to the general rule. It was not until a month after the hearing had concluded and the matter submitted for decision, that the employer first raised the 24 hour residential care facility exception, citing to Palacio (which had been decided more than nine months earlier). In a letter to the hearing officer, the employer asked to “re-open[]” the “evidence.” After the employer sent a second such letter, the DLSE opposed the request to reopen as being too late and not warranted by the evidence. Given this chronology of events, the DLSE agreed at oral argument the judgment could theoretically be affirmed on the ground of forfeiture. Second, since this case was prosecuted and tried as a straightforward “Brinker” case—i.e., that the employees were entitled to, but not provided with, uninterrupted, 30- minute “off-duty” meal periods, during which they were free to leave the premises—and was defended against as such, the employer made no affirmative showing that the 24 hour residential care facility exception applied. (See Lubin, supra, 5 Cal.App.5th at p. 943 [“burden is on the employer to plead and prove facts justifying on-duty meal periods”].) Nor did the hearing officer grant the employer’s belated request to reopen the hearing to present additional evidence. As a consequence, the evidence does not 2 conclusively establish that this exception even applies, let alone suffice for any discussion about the particulars of a lawful “on-duty” meal period under this exception. The employer belatedly urged in the administrative proceedings, and has maintained in these administrative mandamus proceedings, that the record establishes the 24 hour residential care facility exception applies because employees could, without charge, eat the same food they prepared for residents and some employees did so. However, this exception has additional substantive requirements, the first of which is that “on-duty” meal periods are “necessary to meet regulatory or approved program standards.” (Wage Order No. 5, subd. (11)(E).) This threshold requirement is directly at odds, however, with the defense the employer presented—that employees could, in fact, take uninterrupted, 30-minute “off-duty” meal periods. 2 The 24 hour residential care facility exception further requires an employer to establish that one of two additional conditions is met. (Wage Order No. 5, subd. (11)(E).) The first condition an employer can choose to meet can, itself, be met in one of two ways: (a) if the “employees [sic] eats with residents during residents’ meals and the employer provides the same meal at no charge to the employee,” or (b) the employee “is in sole charge of the resident(s)” and “on the day shift, the employer provides a meal at no charge to the employee.” (Id., subd. (11)(E)(1)(a) & (b).) The second condition an employer can choose to meet is providing employees, “except for the night shift,” the “right to have an off-duty meal period” not more than once every two weeks “upon 30 days’ notice.” (Id., subd. (11)(E)(2).) Because the employer made no evidentiary showing as to the applicability of this exception, it did not identify which of these two 2 Although the employer defended on the ground employees could, in fact, take 30-minute “off-duty” meal periods, it did not dispute that only one employee worked the night shift at each of the two small homes (five to six residents) and that the senior residents could not be left unattended—thus, alluding to regulatory controls. That was not the case, however, as to employees on the day shift. At least two employees worked that shift, and often the owner, herself, assisted in the care of residents. The employer therefore maintained these employees could, if they wanted, take an uninterrupted, 30- minute meal period and leave the premises. 3 additional conditions it supposedly met. For example, there is no evidence employees were required to eat with residents during residents’ meals, as required by subdivision (11)(E)(1)(a). There is no evidence any employee on the night shift (the only shift where an employee was in “sole charge” of the residents) understood that “on the day shift” that employee would be provided a meal at no charge, as required by subdivision (11)(E)(1)(b). And there is no evidence employees were aware they had the right to an “off-duty” meal period, not more than once every two weeks, with 30 days notice. (Id., subd. (11)(E)(2).) Accordingly, as the DLSE also agreed at oral argument, given the abysmal state of the evidence as to whether the 24 hour residential care facility exception even applies, the judgment could theoretically also be affirmed on this ground. 3 Third, the absence of a developed evidentiary record makes examination of the nature of lawful “on-duty” meal periods under the 24 hour residential care facility exception virtually impossible. We can point to Brinker as indicating “on-duty” meal periods must, like “off-duty” meal periods, be 30 minutes in length. (Brinker, supra, 53 Cal.4th at p. 1035 [“An on-duty meal period is one in which an employee is not ‘relieved of all duty’ for the entire 30-minute period.”].) But this says next to nothing about the nature of a lawful “on-duty” meal period under any exception to the general rule and, particularly, the 24 hour residential care facility exception. By definition, an employee who “may be [lawfully] required to work on-duty meal periods” (Wage Order No. 5, subd. (11)(E)) continues to have some duties during the meal period and, thus, does not have either an uninterrupted meal period or the unfettered right to leave the premises. Accordingly, in contrast to unpaid, uninterrupted 30-minute, “off-duty” meal periods, during which employees are free to leave the premises—and 3 The hearing officer did not discuss the multiple requirements of the 24 hour residential care facility exception or the evidence pertaining thereto. Rather, concluding a paid “on-duty” meal period must, like an unpaid “off-duty” meal period, be 30 minutes in length (without further discussion or elaboration), the hearing officer pointed to the testimony of the two employees called by the DLSE that they had only 10 to 15 minutes to eat before turning their full attention to other chores, and on the basis of that testimony concluded the employer had not provided adequate meal periods. 4 which are easily measured by “punching in and punching out”—the adequacy of lawful “on-duty” meal periods is not easily evaluated. 4 The very nature of the 24 hour residential care facility exception is illustrative. This exception can apply, for example, as discussed above, where “the residential care employees [sic] eats with residents during the residents’ meals and the employer provides the same meal at no charge to the employee.” (Wage Order No. 5, subd. (11)(E)(1)(a).) This envisions, then, communal dining of employee(s) and residents. Given the nature of 24 hour residential care for seniors, it is inevitable that during such communal meals some residents will need assistance, which could range from pouring a glass of water, to helping to cut food, to escorting a resident to and from the bathroom. If these sorts of duties do not unduly impinge on the opportunity of employees to eat a nutritious meal without being rushed over the course of a half hour, it certainly seems the employees will have been afforded adequate lawful “on-duty” meal periods. On the other hand, if 4 The few DLSE opinion letters addressing “on-duty” meal periods also make clear that, by definition, employees will continue to have some duties during such meal periods and whether an “on-duty” meal period is adequate is a highly fact specific inquiry. (E.g., Dept. Industrial Relations, DLSE Opn. Letter No. 1994.09.28 (Sept. 28, 1994) [“Examples of situations where the nature of the work would require an on-duty lunch would be situations where the employee is the only person employed in the establishment and closing the business would work an undue hardship on the employer; or the continuous operation of machinery requiring monitoring is essential to the business of the employer. In both of these cases, however, it would be necessary to establish that the employee has adequate time to eat while on the job.”]; see The 2002 Update of the DLSE Enforcement Policies and Interpretations Manual (Revised) (Apr. 2017), § 45.2.5 [describing “On-Duty Meal Period” as follows: “Even if all of the circumstances exist to allow an on-duty meal period, the employee must be provided with the opportunity to eat his or her meal while performing the duties required.”]; DLSE Memorandum dated Dec. 23, 1999, p. 8 [“Even though the employee is required to work during the on-duty meal period, the employee must be given the opportunity, while working if necessary, to eat his or her meal. That is what cannot be waived, if the work period exceeds six hours, and if an on-duty meal period has been properly established.”].) In fact, the DLSE has not identified, nor has our research disclosed, any regulatory advisement or other publication actually stating lawful “on-duty” meal periods must be 30 minutes in length, let alone, discussing how the adequacy of such meal periods should be assessed. 5 employees feel pressured to eat meals as quickly as possible and to jump up as soon as they swallow their final bite and turn their full attention to whatever work awaits them, then it would seem the employees have not been afforded adequate “on-duty” meal periods. (See Brinker, supra, 53 Cal.4th at p. 1040 [employer may not, by pressuring employees, “undermine” formal policy of adequate breaks].) And what of an unexpected event during communal dining—for example, a resident suffers a choking or medical emergency requiring the immediate and undivided attention of one or more of the employees? How such an event, which may occur only rarely, impacts the overall adequacy of lawful “on-duty” meal periods in a 24 hour residential facility for seniors is a challenging question. It is also one we cannot, and do not, answer here; rather, it is posed to illustrate the complexity of, and extreme factual specificity of, what will constitute an adequate 30-minute “on-duty” meal period in any particular context. 5 Thus, while the DLSE urged us, at oral argument, to affirm on the ground paid “on-duty” meal periods must be 30 minutes in length and in light of the evidence some employees felt they had to rush through meal periods and return their full attention to 5 There are concomitant record keeping questions. For example, must employees record minutes spent assisting senior residents, for example, in getting a cup of tea, or in cutting their food? This would seem to be unduly burdensome and unreasonable. What about time spent attending to a more unexpected event, like a choking? Again, the point in raising these questions is to underscore that determining the adequacy of lawful half hour “on-duty” meal periods and the sufficiency of records documenting such, is an entirely different, and far more complex, inquiry than that in a case where the general rule applies and employees are entitled to unpaid, uninterrupted 30-minute “off-duty” meal periods during which they are free to leave the premises. It also bears noting that the 24 hour residential care facility exception pertaining to meal periods set forth in Wage Order No. 5, subdivision (11)(E) does not include the “start over” language that appears in the rest period provisions that may, under certain circumstances, apply to such facilities under Wage Order No. 5, subdivision (12)(C), and which states “[a]nother rest period shall be authorized and permitted by the employer when an employee is affirmatively required to interrupt his/her break to respond to the needs of residents.” (See Lab. Code, § 887, subd. (c) [specifying emergency ambulance employees shall remain on call during meal and rest periods, but if employee receives a communication that requires a response, that meal or rest period “shall not be counted towards the meal and rest periods the employee is entitled to” during his or her shift].) 6 work as quickly as possible, it also acknowledged that what constitutes an adequate “on- duty” meal period depends on the particular context and the specific facts, and that this case is not one in which we can bring any further illumination to that complex question. 7 Trial Court: Sonoma County Superior Court Trial Judge: Hon. Rene A. Chouteau Counsel for Plaintiffs and Appellants: Marie Trimble Holvick, Gordon Rees Scully Mansukhani, LLP Sara A. Moore, Gordon Rees Scully Mansukhani, LLP Counsel for Defendant and Respondent: David M. Balter, Division of Labor Standards Enforcement Patricia M. Kelly, Division of Labor Standards Enforcement L’Chaim House et al. v. Department of Labor Standards Enforcement A152975 1 

11TH COURT OF APPEALS EASTLAND, TEXAS JUDGMENT Irma Munguia, * From the County Court at Law No. 2 of Taylor County Trial Court No. 2-470-14. Vs. No. 11-16-00011-CR * December 29, 2017 The State of Texas, * Memorandum Opinion by Wright, C.J. (Panel consists of: Wright, C.J., Willson, J., and Bailey, J.) This court has inspected the record in this cause and concludes that there is no error in the judgment below. Therefore, in accordance with this court’s opinion, the judgment of the trial court is in all things affirmed. 

430 So.2d 1016 (1982) Gerald W. WILEY, Plaintiff-Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant. No. 82-229. Court of Appeal of Louisiana, Third Circuit. October 22, 1982. Writ Denied January 10, 1983. Dubuisson & Dubuisson, James G. Dubuisson, Opelousas, for defendant-appellant. *1017 Carol J. Aymond, Bunkie, for plaintiffappellee. Before DOMENGEAUX, DOUCET and YELVERTON, JJ. DOUCET, Judge. This is a retaliatory discharge—conflicts of law—case involving an injured railway worker seeking to invoke state anti-discrimination laws. Can a railroad employee, discharged for filing (and subsequently settling) a claim under the F.E.L.A., maintain a suit for wrongful discharge pursuant to Louisiana Revised Statute 23:1361. That is the issue presented for our consideration. As far as we are aware, this is the first reported case wherein application of the aforesaid wrongful discharge provision of our workmens compensation laws has been asserted. The trial judge summarized the facts giving rise to this suit as follows: "... on May 9, 1979, while in the course and scope of his employment by defendant, Missouri Pacific Railroad Company, plaintiff sustained an injury. As a result of these injuries plaintiff entered into a release with the railroad in consideration of the sum of $10,000.00 being paid to him by his employer. The plaintiff was required to sign a release which expressly stated the plaintiff had resigned from the services of the railroad and that he would not thereafter be employed by that company or any of its affiliated or subsidary companies. On November 20, 1980, the railroad sent a letter to plaintiff which read as follows: "Our records indicate that you hold seniority on the Missouri Pacific Railroad. Your services are needed at this time; therefore, you are requested to contact this office prior to December 1, 1980. If for any reason you are unable to do so, please furnish medical evidence of your inability to do so. If you have not marked up in the allotted time, or given evidence to why you cannot you will be considered absent without proper authority and in violation of proper instructions." At the instigation of defendant, plaintiff was re-employed by the railroad in December of 1980 and thereafter continued to work for the railroad until he was discharged by letter dated May 1, 1981 which read as follows: "Please refer to your letter of March 13, 1980 wherein you relinquished all employment rights with Missouri Pacific Railroad, and agreed to release all claim for back wages, lost time, etc. This letter was signed as a final settlement growing out of a personal injury sustained by you at Luling, Louisiana on May 9, 1979. We are advised that you were erroneously allowed to return to work. This letter is to advise you that you cannot be permitted to work for Missouri Pacific Railroad again in any capacity, due to your final settlement dated March 13, 1980." After trial on the merits, the trial court rendered judgment in favor of plaintiff, Gerald W. Wiley, awarding $21,421.40, representing one year's earnings plus attorney's fees in the sum of $3,500.00, pursuant to La.R.S. 23:1361. From that judgment defendant Missouri Pacific Railroad Company has appealed, specifying the following alleged errors:[1] "1. `The trial judge erred in holding that R.S. 23:1361 applied to a previous assertion of a claim under the Federal Employer's Liability Act. 2. The trial judge erred in holding that plaintiff was discharged from his employment because of having asserted a previous claim under the Federal Employers' Liability Act. 3. The trial judge erred in not holding that the provisions of R.S. 23:1361 are unconstitutional *1018 if applied to previous claims asserted under the Federal Employers' Liability Act on the ground that such provisions would constitute state legislation in a field of law pre-empted by laws passed by the Congress of the United States of America. 4. The trial Judge erred in failing to hold that the provisions of R.S. 23:1361 would be unconstitutional if applied to previous assertion of claims under the Federal Employers' Liability Act on the ground that the Act would then be broader than its title." The historical development of the employment relationship, leading up to the wrongful discharge action, was succinctly summarized in Pugh v. See's Candies, Inc., 116 Cal.App.3d 311,171 Cal.Rptr. 917 (1981), as follows: "The law of the employment relationship has been, and perhaps still is, in the process of continuing evolution. The old law of master and servant, which held sway through the eighteenth century and to some extent beyond, viewed the relationship as primarily one of status rather than of contract. While agreement gave rise to the relationship and might establish certain of its terms, it was "custom and public policy, not the will of the parties, [which] defined the implicit framework of mutual rights and obligations." (Selznick, Law, Society and Industrial Justice (1969) p. 123.) The essence of the relationship as so defined drew its contours from the model of the household—in which, typically, the servant worked, the master had general authority to discipline the servant, and it was the servant's duty to obey. (Id., at pp. 124-125.) At the same time, the master had certain responsibilities for the servant's general welfare. (Id., at p. 128.) The relationship was thus in a sense paternalistic. And it was not terminable at will; rather, there existed a presumption (in the absence of contrary agreement) that employment was for a period of one year. (Id., at p. 125.) With the industrial revolution in the nineteenth century the law of master and servant underwent a gradual remodeling, primarily at the hands of the judiciary. Primary emphasis came to be placed, through contract doctrine, upon the freedom of the parties to define their own relationship. "The emphasis shifted from obligation to freedom of choice." (Id., at p. 131.) The terms of the contract were to be sought in voluntary agreement, express or implied, the employee being presumed to have assented to the rules and working conditions established by the employer. (Ibid.) In light of the generally superior bargaining power of the employer, "the employment contract became [by the end of the nineteenth century] a very special sort of contract—in large part a device for guaranteeing to management unilateral power to make rules and exercise discretion." (Ibid.) And management's unilateral power extended, generally, to the term of the relationship as well. The new emphasis brought with it a gradual weakening of the traditional presumption that a general hiring (i.e., one without a specific term) was for a year, and its replacement by the converse presumption that "a general or indefinite hiring is prima facie a hiring at will." (Wood, A Treatise on the Law of Master and Servant (1877) § 134, fn. 49.)3 In California, this presumption is reflected in Labor Code section 2922, which provides: "An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month." The recognized inequality in bargaining power between employer and individual employee undergirded the rise of the labor unions and the institutionalization of collective bargaining.4 And through collective bargaining, unions have placed limitations on the employer's unilateral right of termination. Under most union contracts, employees can only be dismissed for "just cause," and disputes over what constitutes cause for dismissal are *1019 typically decided by arbitrators chosen by the parties.5 Collective bargaining agreements, however, cover only a small fraction of the nation's work force,6 and employees who either do not or (as in the case of managerial employees such as Mr. Pugh) cannot form unions7 are left without that protection. In recent years, there have been established by statute a variety of limitations upon the employer's power of dismissal. Employers are precluded, for example, from terminating employees for a variety of reasons, including union membership or activities, race, sex, age or political affiliation.8 Legislatures in this country have so far refrained, however, from adopting statutes, such as those which exist in most other industrialized countries,9 which would provide more generalized protection to employees against unjust dismissal. And while public employees may enjoy job security through civil service rules10 and due process,11 the legal principles which give rise to these protections are not directly applicable to employees in private industry.12" (Footnotes omitted). Thus, under the traditional rule, an employer could discharge a long-term employee for no cause, bad cause, or any cause whatsoever, without regard to his years of satisfactory performance, or the substantial opportunities he may have foregone to remain in the employer's service. As a result thereof the employee without recourse often suffered the cost and inconvenience of searching for a new job (if available), moving expenses and the costs of relocating a family, and emotional distress from embarrassment and loss of status. Until recently the "at will" doctrine was considered so well established that courts applied the rule without inquiring into its logic. Both legislatures and courts have limited the "employment at will" doctrine in recent years to protect participants in union activity[2], workmen's compensation claimants[3], employees serving on jury duty[4], veterans[5], debtors[6], and informants[7], and prohibit employment practices that discriminate because of race, color, religion, sex, national origin[8], or age[9]. Factors which courts have considered in finding rights to job security include special or separate consideration given by the employee for the position, the common law of the job, and the longevity of the employee in the job. In the first instance courts have looked at benefits to the employer, such as surrender of tort claims[10], contributions to the business such as bringing in a special account[11], and the extent of job training. The separate consideration necessary to sustain a permanent employment contract may also have arisen from special reliance by the employee or a demonstration that the employee forfeited something other than services in order to procure the job—e.g.—the *1020 sale of a business where the offer of employment constituted an inducement for the change of status[12], relinquishing a good job or turning down another favorable opportunity in return for a promise of job stability[13], uprooting his or her family and moving long distances to accept a job[14], or hard-sell recruiting efforts[15]. Note, Implied Contract Rights to Job Security, 26 Stan.L.Rev. 335 (1974). In other cases courts have looked to the "common law of the job", or established policy of the firm, to determine the parties understanding as to the duration of a job. The firm's policy may be ascertained from handbooks[16], memorandum to employees[17], oral statements, or the job itself may imply a necessary and natural duration[18]. Furthermore, longevity of service may give rise to implied job security inasmuch as pension and health care plans are a form of deferred compensation and the unexpected severance of an elderly employee both leaves the worker in a precarious position and unjustly enriches the employer[19]. Similarly, inclusion in the employment contract of a covenant not to compete may support a claim that the employee would not be dismissed except for good cause. Implied Contract Rights to Job Security, supra. The United States Supreme Court has recognized implied contractual rights to job security as a property right within the meaning of the 14th Amendment. In Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), a faculty member who had taught in a state college system for 10 years was dismissed without hearing. Although the college did not have a tenure system, the school's faculty guide stated that a teacher's job was secure as long as the teacher's services were satisfactory and he or she was cooperative. At the expiration of Sindermann's 10th one year contract, the Board of Regents of Odessa Junior College voted not to offer him another contract, provided no official statement, no hearing and no appeal. A press release alleged that plaintiff's nonretention was due to insubordination that arose while he was serving as President of the Texas Junior College Teachers Association. The Supreme Court held that the denial of an opportunity to prove an implied contractual right to employment security violated plaintiff's due process rights. Said the Court: [A]bsence of such an explicit contractual provision [tenure] may not always foreclose the possibility that a teacher has a "property" interest in re-employment. For example, the law of contracts in most, if not all, jurisdictions has long employed a process by which agreements, though not formalized in writing, may be "implied."109 Another approach applied by courts to deter unjust dismissals is the implied contractual duty to perform in good faith. In Fortune v. National Cash Register Co., 373 Mass. 96,364 N.E.2d 1251 (1977), the Massachusetts Supreme Judicial Court held that implicit in the plaintiff's employment contract was a covenant of good faith which limited the employer's power to discharge. Accord: Pugh v. Seas Candies, supra. This court has heretofore recognized, in other contexts, that a contract terminable at will is nevertheless subject to limitation on the exercise of that will, to wit: that such termination not be arbitrary and capricious. *1021 Gautreau v. Southern Farm Casualty Insurance Co., 410 So.2d 815 (La.App. 3rd Cir. 1982) writ granted, La., 414 So.2d 392. In Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974), the New Hampshire Supreme Court imposed a good faith limitation on employer discharge on the grounds that an absolute right to discharge endangered the important public policy of improving labor relations in the state. Related hereto is: Summers, Individual Protection Against Unjust Dismissal: Time For A Statute, 62 Va.L.Rev. 481 (1976); Peck, Unjust Discharges from Employment: A Necessary Change in the Law, 40 Ohio St.L.J. 1 (1979); Employment at Will and the Law of Contracts, 23 Buffalo L.Rev. 211 (1973); The Employee's Emerging Right to Sue for Arbitrary or Unfair Discharge, 6 Emp.Rel.L.J. 422 (1980); Kelsay v. Motorola, Inc.: Tort Action for Retaliatory Discharge upon Filing Workmen's Compensation Claim, 12 John Marshall J.Prac. & Proc. 659 (1979); Protecting the Private Sector At Will Employee Who "Blows the Whistle": A Cause of Action Based Upon Determinants of Public Policy, 1977 Wisc.L.Rev. 777; Feinman, The Development of the Employment at Will Rule, 20 Am.J.Legal Hist. 118 (1976); Non-Statutory Cause of Action for an Employer's Termination of an "At Will" Employment Relationship: A Possible Solution to the Economic Imbalance in the Employer-Employee Relationship, 24 N.Y.L.Sch.L.Rev. 743 (1979); and last but not least, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv.L.Rev. 1816 (1980). Louisiana protection from unjust discharge has as its origin La.Civ.Code Art. 2749 which provides: Art. 2749. Liability for dismissal of laborer without cause Art. 2749. If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived. However, the article's humane purpose of preventing abusive discharge has at times been thwarted by a narrow, limited construction of the term "hired for a certain time". Under jurisprudence of years past, permanent employment was often equated with employment at will. Thus, an injured worker who asserted his right to workmen's compensation and was discharged often found himself without recourse. In response to this abusive practice of employers, the Louisiana legislature in 1980, with the aid of organized labor, drafted a statute to protect injured workers who seek to avail themselves of our workmen's compensation laws. The enacted statute reads as follows: SUBPART E. UNLAWFUL DISCRIMINATION PROHIBITED [NEW] § 1361. Unlawful discrimination prohibited A. No person, firm or corporation shall refuse to employ any applicant for employment because of such applicant having asserted a claim for workmen's compensation benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Section shall require a person to employ an applicant who does not meet the qualifications of the position sought. B. No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Chapter shall prohibit an employer from1 discharging an employee who because of injury can no longer perform the duties of his employment. C. Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee *1022 would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year's earnings, together with a reasonable attorney's fee. Added by Acts 1980, No. 704, § 1. 1 Changed from "form" to "from" on authority of R.S. 24:253. (emphasis ours) Hence, under Louisiana law, an employer must show good cause for discharging an employee engaged for a fixed term. Lanier v. Alenco, 459 F.2d 689 (5th Cir.C.A. 1972); LSA-C.C. Art. 2749. Assertion of a claim for workmen's compensation benefits is not good cause for discharge. LSA-R.S. 23:1361. With regard to appellant's contention that the trial judge erred in finding that plaintiff was discharged for having asserted a claim against his employer, we note the following reasons assigned by the trial judge in his reasons for judgment: "The railroad's letter of May 1, 1981 specifically advised the plaintiff that he could not be permitted to work for the railroad again in any capacity due to his final settlement dated March 13, 1980. The reason plaintiff was discharged was because of his assertion of a claim against the railroad." We cannot say the trial judge's finding on this factual matter is clearly wrong; indeed, it appears to be the only conclusion supportable by the evidence. The only contrary evidence concerning the reasons for plaintiff's discharge is the ipse dixit statement of Mr. Robert L. Cathers, claims agent for the railroad, that plaintiff did not possess the character that defendant desired in its employees. We agree with the trial judge that plaintiff was dismissed for having asserted a claim against his employer. Accordingly, we proceed to address the issue of whether R.S. 23:1361 can be applied under the circumstances presented. Railway employees are covered by the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq., which extends to employees any part of whose duties further or substantially affect interstate commerce. As noted by Professors Malone and Johnson: "The expansive definition of the interstate commerce requirement of the FELA and the relative ease with which the requirement of negligence may be established under it have combined to make it virtually certain that an injured railway employee would not even seek benefits under a state compensation act." Malone & Johnson, Workers Compensation § 413 (1980 ed.). The relative ease with which recovery may be had is evidenced in Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), rehearing denied 353 U.S. 943, 77 S.Ct. 808, 71 L.Ed.2d 764, wherein it was held that the test of a jury case is whether proofs justify with reason conclusion that employer negligence played any part, even the slightest, in producing injury, and it does not matter that, from the evidence, the injury was attributable to employee's contributory negligence, since the statute expressly imposes liability upon the employer to pay damages for injury due in whole or part to the employer's negligence. Thus, under the FELA the employer is stripped of his common law defenses and the injured worker's burden is eased. Inasmuch as the act is remedial in nature, it is afforded a liberal construction. From the foregoing we discern that although entitled a liability act, the standard of proof required to sustain an action is such that the FELA is, at least in part, compensatory in nature. We find the FELA to be within the scope of laws designated in LSA-R.S. 23:1361. Furthermore, we perceive no conflict between state and federal interests. The state interest expressed in R.S. 23:1361 remains the same whether plaintiff's claim be categorized as tort or workmen's compensation—protecting the assertion of legal right from retaliatory repercussion. On the other hand, no federal policy is interfered with by affording railroad employees the protection of R.S. 23:1361. Clearly, Louisiana is free to accord its workers greater protection from discrimination. *1023 We find Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), relied upon by appellant, to be inapposite. Andrews held that where the only source of a railroad employee's right not to be discharged was a collective bargaining agreement between the railroad and union, the plaintiff-employee who had not pursued his administrative remedy under the Railway Labor Act could not bring an action against the railroad for wrongful discharge. The plaintiff herein asks for no relief under any collective agreement; rather, he seeks to invoke La.R.S. 23:1361. We have found no law evidencing an intention to render federal channels exclusive for retaliatory discharge claims. The principal purpose of R.S. 23:1361 is remedial, rather than penal. Remedial and penal statutes are distinguishable in terms of the nature of the evil sought to be remedied by the legislation; it is penal if it undertakes to redress to the public and remedial if it undertakes to remedy a wrong to the individual. 3 Sutherland, Statutory Construction, § 60.03, at 33 (4th ed. Sands, 1974); State v. Boniface, 369 So.2d 115 (La.1979). R.S. 23:1361 was designed to protect individuals from discrimination by virtue of their assertion of legal right. Inasmuch as R.S. 23:1361 is a remedial statute, it is to be liberally construed to suppress the evil and to advance the remedy. Starks v. Orleans Motors, Inc., 372 F.Supp. 928 (E.D.La.1974). What is a liberal construction is ordinarily one which makes the statutory rule or principle apply in more situations than would be the case under a strict construction. State v. Boniface, supra. In the present case the evil to be deterred is unjust dismissals. The employee must be able to exercise his right in an unfettered fashion without being subjected to reprisal. The remedy is intended to place the discriminated-against employee in the same position he would have been but for the employer's retaliatory conduct, thereby affording the worker an opportunity to organize his affairs and enter the work force anew. Extending the statute's remedy to workers discharged for asserting FELA claims is entirely consistent with liberal construction afforded remedial acts. Next, appellant contends that R.S. 23:1361 entitled "Unlawful discrimination prohibited", is unconstitutional in that it violates Art. 3 Section 15(A) of the 1974 Louisiana Constitution which requires that "Every bill ... shall be confined to one object. Every bill shall contain a brief title indicative of the object." According to appellant, the body of the statute involved is broader than the title inasmuch as the title makes no reference to federal laws, therefore R.S. 23:1361 is invalid. However, it is only where the variance in the provisions of an act is palpable and totally irreconcilable with its title, or where both title and body express two distinct subjects, that the intention of the legislature will be held to be in conflict with the Constitution. Jefferson Parish v. Louisiana Dept. of Corrections, 259 La. 1063, 254 So.2d 582 (1971). The act at issue specifically prohibits discrimination against employees asserting a claim "under the provisions of this Chapter or under the law of any state or of the United States". The purpose of the constitutional provision that every statute have a title indicative of its object is not to require that the title of an act be an index of its contents, but only that the title in general direct attention to the purposes of the law. State v. Sliger, 261 La. 999, 261 So.2d 643 (1972). The title does not limit its application to claims for workmen's compensation benefits under state law; it does give fair notice as to its scope. We find R.S. 23:1361 constitutional. Furthermore, the evidence indicates that plaintiff established a prima facie case under La.Civ.Code Art. 2749. The abovementioned letter received by plaintiff noted his seniority, requested his return to work and warned "If you have not marked upon in the allotted time, or given evidence as to why you cannot you will be considered without proper authority and in violation of proper instructions." Apparently, it was the understanding of the parties that the employment relationship would continue indefinitely *1024 pending the occurrence of some good and just cause for termination. Hence the term of employment was ascertainable. However, our resolution of plaintiff's R.S. 23:1361 claim renders it unnecessary for us to decide this issue. For the reasons assigned, the judgment appealed is affirmed at appellant's cost. AFFIRMED. DOMENGEAUX, J., concurred in result only and assigned reasons. DOMENGEAUX, Judge, concurring. I concur in the result only. I agree that the circumstances of this case and the fact that plaintiff's claim was asserted and settled under the F.E.L.A. is such that his suit herein is lawfully asserted under the provisions of La.R.S. 23:1631. I also agree that La.R.S. 23:1361 is not violative of Art. 3, Section 15(A) of the Louisiana Constitution of 1974. NOTES [1] Appellant does not rely on the release provisions wherein plaintiff agrees not to return to work for Missouri Pacific Railroad. [2] National Labor Relations Act, 29 U.S.C. § 158(a). [3] Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973). [4] Ness v. Hocks, 272 Or. 210, 536 P.2d 512 (1975). [5] Universal Military Training and Service Act, 50 U.S.C.App. § 459(b) (1968); Carter v. United States, 401 F.2d 1238 (D.C.Cir.1968). [6] Consumer Credit Protection Act, 15 U.S.C. § 1674(a) (1970). [7] Harless v. First National Bank in Fairmont, 246 S.E.2d 270 (W.Va.1978); cf: Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal. Rptr. 839, 610 P.2d 1330 (1980) refusing to participate in an illegal price-fixing scheme; Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980); Petermann v. Teamster's Local 396, 174 Cal.App.2d 184, 344 P.2d 25 (1959) refusal to give perjured testimony. [8] Title VII of the Civil Rights Act of 1964, § 701 et seq., 42 U.S.C. § 2000e et seq. For a recent case involving reverse discrimination discharge claims pursuant to the abovementioned act see Morgan v. O'Bryant, 671 F.2d 23 (1st Cir.1981). [9] Age Discrimination in Employment Act, 29 U.S.C. § 623 (1970). [10] Pierce v. Tennessee Coal Iron & R.R., 173 U.S. 1, 19 S.Ct. 335, 43 L.Ed. 591 (1905). [11] Downes v. Poncet, 38 Misc. 799, 78 N.Y.S. 883 (N.Y. City Ct. 1902). [12] Bondi v. Jewels by Edwar, Ltd., 267 Cal. App.2d 672, 73 Cal.Rptr. 494 (2d Dist.1964). [13] Maloney v. E.I. DuPont de Nemours & Co., 352 F.2d 936 (D.C.Cir.1965), cert. denied 383 U.S. 948, 86 S.Ct. 1201, 16 L.Ed.2d 219 (1966). [14] Ward v. Consolidated Foods Corp., 480 S.W.2d 483 (Tex.Civ.App.1972). [15] Id. [16] Greene v. Howard Univ., 412 F.2d 1128 (D.C.Cir.1969). [17] Brawthen v. H & R Block, Inc., 28 Cal. App.3d 131, 104 Cal.Rptr. 486 (1st Dist.1972). [18] Woods v. M.A. Shumard & Co., 114 La. 451, 38 So. 416 (1905); Sarusal v. Seung, 96 Wash. 295, 165 P. 116 (1917). [19] Fulton v. Tennessee Walking Horse Breeders Assoc. of America, 63 Tenn.App. 569, 476 S.W.2d 644 (1971).

58 F.3d 1266 Pens. Plan Guide P 23913TINTERNATIONAL ASSOCIATION OF ENTREPRENEURS OF AMERICA;International Association of Entrepreneurs ofAmerica Benefit Trust; InternationalAssociation of Entrepreneursof America, Inc., Appellants,v.Jay ANGOFF, Director, Missouri Department of Insurance, Appellee. No. 94-3810. United States Court of Appeals,Eighth Circuit. Submitted April 12, 1995.Decided June 30, 1995.Rehearing Denied Aug. 4, 1995. Nicholas M. Monaco, Jefferson City, MO, argued, and Joseph A. Jordano, Omaha, NE, for appellants. Jeanine D. Hazelton, Jefferson City, MO, argued, for appellee. Before WOLLMAN and MURPHY, Circuit Judges, and DAVIS,* District Judge. WOLLMAN, Circuit Judge. 1 International Association of Entrepreneurs of America and associated entities (collectively "IAEA") appeals from the order dismissing its petition filed under the Declaratory Judgment Act, 28 U.S.C. Sec. 2201. IAEA asserted exclusive federal jurisdiction to decide the merits of its ERISA claim. The district court1 held that the matter could be resolved in a parallel state proceeding and dismissed the petition. Although we essentially agree with the district court's treatment of the case, we conclude that the case should not have been dismissed, and we therefore vacate the dismissal and remand for entry of a stay. 2 * IAEA provides various insurance and benefits services to Missouri employers who are association members. Defendant, Jay Angoff, Director of the Missouri Department of Insurance ("Angoff"), sought an injunction in Missouri state court to stop IAEA from selling insurance without a state license. IAEA sought to remove the Missouri action to federal court, but the petition was denied as untimely. 3 IAEA then filed this declaratory action in federal court, alleging that IAEA's insurance activities were covered by the Employee Retirement Income Security Act of 1974 (ERISA), codified as amended at 29 U.S.C. Secs. 1001-1461, and seeking a declaration that IAEA was exempt from state insurance regulation under ERISA provisions preempting such state rules. 4 The district court granted Angoff's motion to dismiss on the basis that IAEA's federal preemption claim was in substance nothing more than an affirmative defense to Angoff's state law claim and that the Declaratory Judgment Act was not intended to be a vehicle for such affirmative defenses. Having dismissed on this ground, the district court declined to address Angoff's argument that IAEA does not operate an employee welfare benefit plan of the type covered by ERISA. Likewise, the district court purported not to address Angoff's third ground for dismissal, that being Younger abstention. See Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). II 5 * The keystone argument upon which IAEA's appeal depends is that ERISA contemplates that only federal courts decide matters of ERISA status. Under IAEA's exclusive federal jurisdiction theory, since ERISA guarantees IAEA a right to petition only federal courts for injunctive relief against state attempts to regulate ERISA plans, this declaratory action must be allowed to proceed, as the issues it raises cannot be addressed in any other forum. 6 ERISA Sec. 502(a)(3), (29 U.S.C. Sec. 1132(a)(3)), establishes the right of an ERISA fiduciary to an injunction against practices violative of ERISA. ERISA Sec. 502(e)(1), (29 U.S.C. Sec. 1132(e)(1)), provides that only a federal court can issue such an injunction. For purposes of discussion we presume that under these provisions an ERISA fiduciary can indeed seek an injunction based on assertions of improper state regulation like those IAEA makes here. E.g., MDPhysicians & Assoc. v. State Bd. of Ins., 957 F.2d 178 (5th Cir.) (rejecting declaratory action on merits ground), cert. denied, --- U.S. ----, 113 S.Ct. 179, 121 L.Ed.2d 125 (1992); Atlantic Health Care Benefits Trust v. Foster, 809 F.Supp. 365, 368 (M.D.Pa.1992), aff'd mem., 6 F.3d 778 (3rd Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 689, 126 L.Ed.2d 656 (1994). But IAEA's appeal fails because no court has yet decided whether IAEA is an ERISA plan as it alleges. 7 ERISA nowhere makes federal courts the exclusive forum for deciding the ERISA status vel non of a plan or fiduciary. Unless instructed otherwise by Congress, state and federal courts have equal power to decide federal questions. Federal Express Corp. v. Tenn. Pub. Serv. Comm'n, 925 F.2d 962, 968 (6th Cir.), cert. denied, 502 U.S. 812, 112 S.Ct. 59, 116 L.Ed.2d 35 (1991); CSXT, Inc. v. Pitz, 883 F.2d 468, 472 (6th Cir.1989), cert. denied, 494 U.S. 1030, 110 S.Ct. 1480, 108 L.Ed.2d 616 (1990). Because ERISA is silent on the matter of the power to declare ERISA status, we conclude that the question of IAEA's ERISA status falls under the usual concurrent state and federal jurisdiction. 8 Until IAEA has proven its allegation that ERISA applies, questions of preemption and exclusive federal jurisdiction do not enter this case. Until the preliminary issue of ERISA status is decided, IAEA may not seek the exclusive federal protections available to an ERISA plan. See JAMES F. JORDEN, ET AL., HANDBOOK ON ERISA LITIGATION, ch. 1, Sec. 1.01, at 4 (1992) (hereafter ERISA LITIGATION) ("if no [ERISA] plan is involved, then ERISA's broad preemption of state law claims is not triggered."); see also MDPhysicians, 957 F.2d at 182 (preemption issues need not be considered until ERISA status established). (While we presume for discussion purposes that IAEA, if held to be covered by ERISA, could seek to enjoin the state court proceeding, this proposition is at least arguable. See 1975 Salaried Retirement Plan, etc. v. Nobers, 968 F.2d 401, 408 (3rd Cir.1992) (refusing to enjoin state action deciding matters within exclusive federal jurisdiction), cert. denied, --- U.S. ----, 113 S.Ct. 1066, 122 L.Ed.2d 370 (1993); Total Plan Servs. v. Texas Retailers Ass'n, 925 F.2d 142, 144-46 (5th Cir.1991) (same); ERISA LITIGATION, ch. 1, Sec. 1.04[A], at 29 ("Despite this grant of exclusive jurisdiction, a federal court ordinarily may not enjoin a state court action seeking to adjudicate claims exclusively within federal court jurisdiction.").) 9 Our conclusion that concurrent jurisdiction exists at this preliminary stage of the litigation is buttressed by the fact that the courts of Missouri and other states have in the past decided questions of ERISA status without correction by the United States Supreme Court or Congress. Marshall, et. al. v. Bankers Life and Cas. Co., 2 Cal. 4th 1045, 10 Cal.Rptr.2d 72, 832 P.2d 573, 575 (plan covered by ERISA), cert. denied, --- U.S. ----, 113 S.Ct. 601, 121 L.Ed.2d 537 (1992); Rizzi v. Blue Cross of S. Calif., 206 Cal.App.3d 380, 253 Cal.Rptr. 541, 542 (1988) (covered), cert. denied, 493 U.S. 821, 110 S.Ct. 78, 107 L.Ed.2d 44 (1989); Cramer v. Ass'n Life Ins. Co., 569 So.2d 533, 534 (La.1990) (covered; ERISA status litigated in lower courts but not appealed to state Supreme Court), cert. denied, 499 U.S. 938, 111 S.Ct. 1391, 113 L.Ed.2d 447 (1991); Blue Cross Hosp. Servs., Inc. of Missouri, et al. v. Frappier, 681 S.W.2d 925, 931 (Mo.1984) (not covered), vacated, 472 U.S. 1014, 105 S.Ct. 3471, 87 L.Ed.2d 608, and readopted on remand, 698 S.W.2d 326 (Mo.1985); Angoff v. Kenemore, et al., 887 S.W.2d 782, 786 (Mo.Ct.App.1994) (not covered). 10 Thus, what IAEA asserts to be an exclusive federal jurisdiction to decide ERISA status by declaration is actually an exclusive federal jurisdiction to grant certain types of declaratory and injunctive relief once ERISA status has been established by either a state or federal court. Accordingly, the district court was correct in holding that IAEA's allegation that it is an ERISA fiduciary can be asserted as an affirmative defense in the ongoing state court action. B 11 The question remains whether the district court had the discretion to defer consideration of this declaratory action. While as a general proposition an alleged ERISA fiduciary can move for a federal declaration of its ERISA status, see MDPhysicians, 957 F.2d at 180; Atlantic Health Care, 809 F.Supp. at 368, the usual discretionary limitations on declaratory actions apply unless Congress instructs differently. See Franchise Tax Bd. of Calif. v. Constr. Laborers Vacation Trust for S. Calif. et al., 463 U.S. 1, 18-19, 103 S.Ct. 2841, 2850-51, 77 L.Ed.2d 420 (1983); BASF Corp. v. Symington, 50 F.3d 555, 557 (8th Cir.1995); Omaha Property and Cas. Ins. Co. v. Johnson, 923 F.2d 446, 447-48 (6th Cir.1991); Continental Airlines v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1524 (9th Cir.1987); Transamerica Occidental Life Ins. Co. v. DiGregorio, 811 F.2d 1249, 1253 (9th Cir.1987). A review of the procedural facts of this case together with precedent in analogous situations convinces us such limitations may properly be applied here. 12 It was only after it had been sued in state court and its removal petition had been denied as untimely that IAEA filed this declaratory action. This sequence of events alerts us to be on guard for ties between the state and federal actions, because the Declaratory Judgment Act is not to be used either for tactical advantage by litigants or to open a new portal of entry to federal court for suits that are essentially defensive or reactive to state actions. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 18 n. 20, 103 S.Ct. 927, 937, 74 L.Ed.2d 765 (1983); BASF, 50 F.3d at 558 (citing cases); Continental Cas. Co. v. Robsac Indus., 947 F.2d 1367, 1372-73 (9th Cir.1991); Omaha Property, 923 F.2d at 448; Continental Airlines, 819 F.2d at 1524; Transamerica, 811 F.2d at 1253; Home Fed. Sav. and Loan Ass'n v. Ins. Dept. of Iowa, 571 F.2d 423, 427 (8th Cir.1978). 13 More specifically, the Declaratory Judgment Act is not to be used to bring to the federal courts an affirmative defense which can be asserted in a pending state action. Franchise Tax Bd., 463 U.S. at 16, 103 S.Ct. at 2849-50 (discussing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950)); BASF, 50 F.3d at 558. In addition, the Declaratory Judgment Act is not meant to expand federal jurisdiction. Franchise Tax Bd., 463 U.S. at 15-16, 103 S.Ct. at 2849-50; Home Federal, 571 F.2d at 427 n. 17. Here, IAEA passed up its chance to remove to federal court. Limitations on removal may or may not be jurisdictional; but either way, the limits must be strictly construed and enforced. 14A CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE, Sec. 3732 at 527 & n. 41 (1985 & Supp.1995) (hereafter WRIGHT & MILLER). There is no need to allow state court defendants like IAEA to circumvent the removal statute's deadline by using the Declaratory Judgment Act as a convenient and temporally unlimited back door into federal court. See Continental Airlines, 819 F.2d at 1524 (referring to special federal court discretion to prevent circumvention of removal statute). 14 A district court's decision on whether or not to proceed with a declaratory judgment action is reviewed under the abuse of discretion standard. Wilton v. Seven Falls Co., --- U.S. ----, ----, 115 S.Ct. 2137, 2143, 132 L.Ed.2d 214 (U.S.1995). There was no abuse of discretion here. C 15 Both parties appear to assume that the district court implicitly engaged in a Younger abstention analysis. It is clear that the district court to some extent relied on the principles of comity and federalism in coming to its decision; also, the district court indicated that its dismissal may have hinged on the existence of a parallel state proceeding. Order at 8-9. 16 Although we need not address the abstention issue, our discussion above may have effectively resolved it. The doctrine of abstention is premised on the idea that a federal court may defer to a state court confronted with a similar controversy: there is no need for abstention unless the state and federal courts have concurrent jurisdiction of an issue or case. See Dailey v. National Hockey League, 987 F.2d 172, 178 (3d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 67, 126 L.Ed.2d 36 (1993); Levy v. Lewis, 635 F.2d 960, 967 (2d Cir.1980). For this reason, IAEA's argument against abstention presumes that the federal and state suits here are based on two separate causes of action, a presumption that we reject. 17 We note in closing that because concurrent jurisdiction exists in state and federal court to decide the question of IAEA's ERISA status, the district court should not have dismissed for lack of jurisdiction under FED.R.CIV.P. 12(b)(1). While pre-answer motions are ostensibly enumerated in FED.R.CIV.P. 12(b), district courts have the discretion to recognize additional pre-answer motions, including motions to stay cases within federal jurisdiction when a parallel state action is pending. Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494-96, 62 S.Ct. 1173, 1175-76, 86 L.Ed. 1620 (1942); see generally 5A WRIGHT & MILLER, Sec. 1360 at 432, 438-41 (1990 & Supp.1995). Here, while the state court action may finally resolve the case, it is also possible that further federal proceedings may prove necessary. So long as a possibility of return to federal court remains, a stay rather than a dismissal is the preferred mode of abstention. See Wilton, --- U.S. at ----, 115 S.Ct. at 2143 n. 2; Bob's Home Service, Inc. v. Warren County, 755 F.2d 625, 628 (8th Cir.1985); 17A CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, Sec. 4247 at 136-38 (1988). Properly understood, Angoff's motion was for such a stay, not dismissal based on lack of jurisdiction. Accordingly, we vacate the dismissal and remand for entry of a stay. * The HONORABLE MICHAEL J. DAVIS, United States District Judge for the District of Minnesota, sitting by designation 1 The Honorable Scott O. Wright, Senior United States District Judge for the Western District of Missouri

248 U.S. 90 (1918) UNITED DRUG COMPANY v. THEODORE RECTANUS COMPANY. No. 27. Supreme Court of United States. Argued March 12, 13, 1918. Decided December 9, 1918. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. *91 Mr. Laurence A. Janney, with whom Mr. Alexis C. Angell and Mr. Frederick L. Emery were on the briefs, for petitioner. Mr. Clayton B. Blakey for respondent. *93 MR. JUSTICE PITNEY delivered the opinion of the court. This was a suit in equity brought September 24, 1912, in the United States District Court for the Western District of Kentucky, by the present petitioner, a Massachusetts corporation, against the respondent, a Kentucky corporation, together with certain individual citizens of the latter State, to restrain infringement of trade-mark and unfair competition. The District Court granted an injunction against the corporation defendant pursuant to the prayer of the bill. 206 Fed. Rep. 570. The Circuit Court of Appeals reversed the decree and remanded the cause with directions to dismiss the bill. 226 Fed. Rep. 545. An appeal was allowed by one of the judges of that court, and afterwards we allowed a writ of certiorari. Pursuant to a stipulation, the transcript of the record filed for the purposes of the appeal was treated as a return to the writ. Under § 128, Judicial Code, as amended by Act of January 28, 1915, c. 22, § 2, 38 Stat. 803, the appeal must be dismissed, and the cause will be determined on the writ of certiorari. *94 The essential facts are as follows: About the year 1877 Ellen M. Regis, a resident of Haverhill, Massachusetts, began to compound and distribute in a small way a preparation for medicinal use in cases of dyspepsia and some other ailments, to which she applied as a distinguishing name the word "Rex" — derived from her surname. The word was put upon the boxes and packages in which the medicine was placed upon the market, after the usual manner of a trade-mark. At first alone, and afterwards in partnership with her son under the firm name of "E.M. Regis & Company," she continued the business on a modest scale; in 1898 she recorded the word "Rex" as a trade-mark under the laws of Massachusetts (Acts 1895, p. 519, c. 462, § 1); in 1900 the firm procured its registration in the United States Patent Office under the Act of March 3, 1881, c. 138, 21 Stat. 502; in 1904 the Supreme Court of Massachusetts sustained their trade-mark right under the state law as against a concern that was selling medicinal preparations of the present petitioner under the designation of "Rexall remedies" (Regis v. Jaynes, 185 Massachusetts, 458); afterwards the firm established priority in the mark as against petitioner in a contested proceeding in the Patent Office; and subsequently, in the year 1911, petitioner purchased the business with the trade-mark right, and has carried it on in connection with its other business, which consists in the manufacture of medicinal preparations, and their distribution and sale through retail drug stores, known as "Rexall stores," situate in the different States of the Union, four of them being in Louisville, Kentucky. Meanwhile, about the year 1883, Theodore Rectanus, a druggist in Louisville, familiarly known as "Rex," employed this word as a trade-mark for a medicinal preparation known as a "blood purifier." He continued this use to a considerable extent in Louisville and vicinity, spending money in advertising and building up a trade, so that — *95 except for whatever effect might flow from Mrs. Regis' prior adoption of the word in Massachusetts, of which he was entirely ignorant — he was entitled to use the word as his trade-mark. In the year 1906 he sold his business, including the right to the use of the word, to respondent; and the use of the mark by him and afterwards by respondent was continuous from about the year 1883 until the filing of the bill in the year 1912. Petitioner's first use of the word "Rex" in connection with the sale of drugs in Louisville or vicinity was in April, 1912, when two shipments of "Rex Dyspepsia Tablets," aggregating 150 boxes and valued at $22.50, were sent to one of the "Rexall" stores in that city. Shortly after this the remedy was mentioned by name in local newspaper advertisements published by those stores. In the previous September, petitioner shipped a trifling amount — five boxes — to a drug store in Franklin, Kentucky, approximately 120 miles distant from Louisville. There is nothing to show that before this any customer in or near Kentucky had heard of the Regis remedy, with or without the description "Rex," or that this word ever possessed any meaning to the purchasing public in that State except as pointing to Rectanus and the Rectanus Company and their "blood purifier." That it did and does convey the latter meaning in Louisville and vicinity is proved without dispute. Months before petitioner's first shipment of its remedy to Kentucky, petitioner was distinctly notified (in June, 1911,) by one of its Louisville distributors that respondent was using the word "Rex" to designate its medicinal preparations, and that such use had been commenced by Mr. Rectanus as much as 16 or 17 years before that time. There was nothing to sustain the allegation of unfair competition, aside from the question of trade-mark infringement. As to this, both courts found, in substance, that the use of the same mark upon different but somewhat *96 related preparations was carried on by the parties and their respective predecessors contemporaneously, but in widely separated localities, during the period in question — between 25 and 30 years — in perfect good faith, neither side having any knowledge or notice of what was being done by the other. The District Court held that because the adoption of the mark by Mrs. Regis antedated its adoption by Rectanus, petitioner's right to the exclusive use of the word in connection with medicinal preparations intended for dyspepsia and kindred diseases of the stomach and digestive organs must be sustained, but without accounting for profits or assessment of damages for unfair trade; citing McLean v. Fleming, 96 U.S. 245; Menendez v. Holt, 128 U.S. 514; Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 39; Saxlehner v. Siegel-Cooper Co., 179 U.S. 42. The Circuit Court of Appeals held that in view of the fact that Rectanus had used the mark for a long period of years in entire ignorance of Mrs. Regis' remedy or of her trade-mark, had expended money in making his mark well known, and had established a considerable though local business under it in Louisville and vicinity, while on the other hand during the same long period Mrs. Regis had done nothing, either by sales agencies or by advertising, to make her medicine or its mark known outside of the New England States, saving sporadic sales in territory adjacent to those States, and had made no effort whatever to extend the trade to Kentucky, she and her successors were bound to know that, misled by their silence and inaction, others might act, as Rectanus and his successors did act, upon the assumption that the field was open, and therefore were estopped to ask for an injunction against the continued use of the mark in Louisville and vicinity by the Rectanus Company. The entire argument for the petitioner is summed up in the contention that whenever the first user of a trade-mark has been reasonably diligent in extending the *97 territory of his trade, and as a result of such extension has in good faith come into competition with a later user of the same mark who in equal good faith has extended his trade locally before invasion of his field by the first user, so that finally it comes to pass that the rival traders are offering competitive merchandise in a common market under the same trade-mark, the later user should be enjoined at the suit of the prior adopter, even though the latter be the last to enter the competitive field and the former have already established a trade there. Its application to the case is based upon the hypothesis that the record shows that Mrs. Regis and her firm, during the entire period of limited and local trade in her medicine under the Rex mark, were making efforts to extend their trade so far as they were able to do with the means at their disposal. There is little in the record to support this hypothesis; but, waiving this, we will pass upon the principal contention. The asserted doctrine is based upon the fundamental error of supposing that a trade-mark right is a right in gross or at large, like a statutory copyright or a patent for an invention, to either of which, in truth, it has little or no analogy. Canal Co. v. Clark, 13 Wall. 311, 322; McLean v. Fleming, 96 U.S. 245, 254. There is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is employed. The law of trade-marks is but a part of the broader law of unfair competition; the right to a particular mark grows out of its use, not its mere adoption; its function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another's product as his; and it is not the subject of property except in connection with an existing business. Hanover Milling Co. v. Metcalf, 240 U.S. 403, 412-414. The owner of a trade-mark may not, like the proprietor *98 of a patented invention, make a negative and merely prohibitive use of it as a monopoly. See United States v. Bell Telephone Co., 167 U.S. 224, 250; Bement v. National Harrow Co., 186 U.S. 70, 90; Paper Bag Patent Case, 210 U.S. 405, 424. In truth, a trade-mark confers no monopoly whatever in a proper sense, but is merely a convenient means for facilitating the protection of one's good-will in trade by placing a distinguishing mark or symbol — a commercial signature — upon the merchandise or the package in which it is sold. It results that the adoption of a trade-mark does not, at least in the absence of some valid legislation enacted for the purpose, project the right of protection in advance of the extension of the trade, or operate as a claim of territorial rights over areas into which it thereafter may be deemed desirable to extend the trade. And the expression, sometimes met with, that a trade-mark right is not limited in its enjoyment by territorial bounds, is true only in the sense that wherever the trade goes, attended by the use of the mark, the right of the trader to be protected against the sale by others of their wares in the place of his wares will be sustained. Property in trade-marks and the right to their exclusive use rest upon the laws of the several States, and depend upon them for security and protection; the power of Congress to legislate on the subject being only such as arises from the authority to regulate commerce with foreign nations and among the several States and with the Indian tribes. Trade-Mark Cases, 100 U.S. 82, 93. Conceding everything that is claimed in behalf of the petitioner, the entire business conducted by Mrs. Regis and her firm prior to April, 1911, when petitioner acquired it, was confined to the New England States with inconsiderable sales in New York, New Jersey, Canada, and Nova Scotia. There was nothing in all of this to give her *99 any rights in Kentucky, where the principles of the common law obtain. Hunt v. Warnicke's Heirs, 3 Kentucky (Hardin), 61, 62; Lathrop v. Commercial Bank, 8 Dana (Ky.), 114, 121; Ray v. Sweeney, 14 Bush (Ky.), 1, 9; Aetna Ins. Co. v. Commonwealth, 106 Kentucky, 864, 881; Nider v. Commonwealth, 140 Kentucky, 684, 687. We are referred to no decision by the courts of that State, and have found none, that lays down any peculiar doctrine upon the subject of trade-mark law. There is some meager legislation, but none that affects this case (Kentucky Stats., § 2572c, subsec. 7; §§ 4749-4755). There was nothing to prevent the State of Kentucky (saving, of course, what Congress might do within the range of its authority) from conferring affirmative rights upon Rectanus, exclusive in that Commonwealth as against others whose use of the trade-mark there began at a later time than his; but whether he had such rights, or respondent now has them, is a question not presented by the record; there being no prayer for an injunction to restrain petitioner from using the mark in the competitive field. It is not contended, nor is there ground for the contention, that registration of the Regis trade-mark under either the Massachusetts statute or the act of Congress, or both, had the effect of enlarging the rights of Mrs. Regis or of petitioner beyond what they would be under common-law principles. Manifestly, the Massachusetts statute (Acts 1895, p. 519, c. 462) could have no extraterritorial effect. And the Act of Congress of March 3, 1881, c. 138, 21 Stat. 502, applied only to commerce with foreign nations or the Indian tribes, with either of which this case has nothing to do. See Ryder v. Holt, 128 U.S. 525. Nor is there any provision making registration equivalent to notice of rights claimed thereunder. The Act of February 20, 1905, c. 592, 33 Stat. 724, which took the place of the 1881 Act, while extending protection to trade-marks used in interstate commerce, does not enlarge *100 the effect of previous registrations, unless renewed under the provisions of its twelfth section, which has not been done in this case; hence we need not consider whether anything in this act would aid the petitioner's case. Undoubtedly, the general rule is that, as between conflicting claimants to the right to use the same mark, priority of appropriation determines the question. See Canal Co. v. Clark, 13 Wall. 311, 323; McLean v. Fleming, 96 U.S. 245, 251; Manufacturing Co. v. Trainer, 101 U.S. 51, 53; Columbia Mill Co. v. Alcorn, 150 U.S. 460, 463. But the reason is that purchasers have come to understand the mark as indicating the origin of the wares, so that its use by a second producer amounts to an attempt to sell his goods as those of his competitor. The reason for the rule does not extend to a case where the same trade-mark happens to be employed simultaneously by two manufacturers in different markets separate and remote from each other, so that the mark means one thing in one market, an entirely different thing in another. It would be a perversion of the rule of priority to give it such an application in our broadly extended country that an innocent party who had in good faith employed a trade-mark in one State, and by the use of it had built up a trade there, being the first appropriator in that jurisdiction, might afterwards be prevented from using it, with consequent injury to his trade and good-will, at the instance of one who theretofore had employed the same mark but only in other and remote jurisdictions, upon the ground that its first employment happened to antedate that of the first-mentioned trader. In several cases federal courts have held that a prior use of a trade-mark in a foreign country did not entitle its owner to claim exclusive trade-mark rights in the United States as against one who in good faith had adopted a like trade-mark here prior to the entry of the foreigner into this market. Richter v. Anchor Remedy Co., 52 Fed. *101 Rep. 455, 458; Richter v. Reynolds, 59 Fed. Rep. 577, 579; Walter Baker & Co. v. Delapenha, 160 Fed. Rep. 746, 748; Gorham Mfg. Co. v. Weintraub, 196 Fed. Rep. 957, 961. The same point was involved in Hanover Milling Co. v. Metcalf, 240 U.S. 403, 415, where we said: "In the ordinary case of parties competing under the same mark in the same market, it is correct to say that prior appropriation settles the question. But where two parties independently are employing the same mark upon goods of the same class, but in separate markets wholly remote the one from the other, the question of prior appropriation is legally insignificant, unless at least it appear that the second adopter has selected the mark with some design inimical to the interests of the first user, such as to take the benefit of the reputation of his goods, to forestall the extension of his trade, or the like." In this case, as already remarked, there is no suggestion of a sinister purpose on the part of Rectanus or the Rectanus Company; hence the passage quoted correctly defines the status of the parties prior to the time when they came into competition in the Kentucky market. And it results, as a necessary inference from what we have said, that petitioner, being the newcomer in that market, must enter it subject to whatever rights had previously been acquired there in good faith by the Rectanus Company and its predecessor. To hold otherwise — to require Rectanus to retire from the field upon the entry of Mrs. Regis' successor — would be to establish the right of the latter as a right in gross, and to extend it to territory wholly remote from the furthest reach of the trade to which it was annexed, with the effect not merely of depriving Rectanus of the benefit of the good-will resulting from his long-continued use of the mark in Louisville and vicinity, and his substantial expenditures in building up his trade, but of enabling petitioner to reap substantial benefit from the publicity that Rectanus *102 has thus given to the mark in that locality, and of confusing if not misleading the public as to the origin of goods thereafter sold in Louisville under the Rex mark, for, in that market, until petitioner entered it, "Rex" meant the Rectanus product, not that of Regis. In support of its contention petitioner cites the same cases that were relied upon by the District Court, namely, McLean v. Fleming, 96 U.S. 245; Menendez v. Holt, 128 U.S. 514; Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 39; and Saxlehner v. Siegel-Cooper Co., 179 U.S. 42. They exemplify the rule that, where the proof of infringement is clear, a court of equity will not ordinarily refuse an injunction for the future protection of the proprietor of a trade-mark right, even where his acquiescence and laches have been such as to disentitle him to an accounting for the past profits of the infringer. The rule finds appropriate application in cases of conscious infringement or fraudulent imitation, as is apparent from a reading of the opinions in those cases; but it has no pertinency to such a state of facts as we are now dealing with. In McLean v. Fleming, the only question raised in this court that affected the right of the appellee to an injunction was whether the Circuit Court had erred in finding that defendant's labels "Dr. McLean's Universal Pills," etc., infringed complainant's label "Dr. C. McLane's Celebrated Liver Pills," and this turned upon whether the similarity was sufficient to deceive ordinarily careful purchasers. The evidence showed without dispute that from the beginning of his use of the offending labels the defendant (McLean) had known of the McLane liver pills, and raised at least a serious question whether he did not adopt his labels for the purpose of palming off his goods as those of complainant. What he controverted was that his labels amounted to an infringement of complainant's, and when this was decided against him the propriety of the injunction was clear. In Menendez v. *103 Holt, likewise, defendants (Menendez) admitted the existence of the brand in question — the words "La Favorita" as applied to flour — and admitted using it, but denied that Holt & Company were the owners, alleging that one Rider was a former member of that firm and entitled to use the brand, and that under him defendants had sold their flour branded "La Favorita, S.O. Rider." There was, however, no question but that defendants adopted the brand knowing it to be already in use by others. In the Saxlehner Cases, the facts were peculiar, and need not be rehearsed; injunctions were allowed to restrain the sale of certain waters in bottles and under labels in which those of complainant were intentionally imitated. In all four cases the distinguishing features of the present case were absent. Here the essential facts are so closely parallel to those that furnished the basis of decision in the Allen & Wheeler Case, reported sub nom. Hanover Milling Co. v. Metcalf, 240 U.S. 403, 419-420, as to render further discussion unnecessary. Mrs. Regis and her firm, having during a long period of years confined their use of the "Rex" mark to a limited territory wholly remote from that in controversy, must be held to have taken the risk that some innocent party might in the meantime hit upon the same mark, apply it to goods of similar character, and expend money and effort in building up a trade under it; and since it appears that Rectanus in good faith, and without notice of any prior use by others, selected and used the "Rex" mark, and by the expenditure of money and effort succeeded in building up a local but valuable trade under it in Louisville and vicinity before petitioner entered that field, so that "Rex" had come to be recognized there as the "trade signature" of Rectanus and of respondent as his successor, petitioner is estopped to set up their continued use of the mark in that territory as an infringement of the Regis trade-mark. Whatever confusion may have *104 arisen from conflicting use of the mark is attributable to petitioner's entry into the field with notice of the situation; and petitioner cannot complain of this. As already stated, respondent is not complaining of it. Decree affirmed.

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted April 13, 2011* Decided April 13, 2011 Before MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 10‐3776 SAMER T. SHEHADEH, Petition for Review of an Order of the Board Petitioner, of Immigration Appeals. v. No. A047 794 075 ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. O R D E R Samer Shehadeh, a citizen of Jordan, married an American citizen and then moved to the United States as a conditional permanent resident. See 8 U.S.C. § 1186a(a)(1); 8 C.F.R. § 216.1. Less than a year after he arrived, an Illinois court convicted him of misdemeanor domestic battery against his then‐spouse, see 720 ILCS 5/12‐3.2(a)(1). An immigration judge ordered him removed after determining that this conviction qualified as a “crime of domestic violence,” see 8 U.S.C. § 1227(a)(2)(E)(i), meaning “any crime of violence” as * After examining the briefs and record, we have concluded that oral argument is unnecessary. Thus, the petition for review is submitted on the briefs and record. See FED. R. APP. P. 34(a)(2)(C). No. 10‐3776 Page 2 defined in 18 U.S.C. § 16(a) that is committed against a person with whom the perpetrator has a domestic relationship. The Board of Immigration Appeals agreed and dismissed Shehadeh’s administrative appeal, relying on our decision in LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. 2008). In LaGuerre, we held that a conviction under the same statutory provision for domestic battery in Illinois qualified as a crime of violence. See id. at 1039. Shehadeh now petitions for review of the Board’s decision; we deny his petition. In his sole argument on appeal, Shehadeh invites us to revisit LaGuerre. He contends that our earlier decision in Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003), requires us first to examine the minimum amount of force required under the statute before the conviction may be qualified as a crime of violence. He insists that we skipped this step in LaGuerre.   Shehadeh misunderstands our holding in Flores. In Flores we examined whether a “crime of domestic violence” under § 1227(a)(2)(E)(i) included a conviction for misdemeanor battery in Indiana. As we noted in Flores, and as the Supreme Court later directed in Leocal v. Ashcroft, 543 U.S. 1, 7 (2004), we assess whether an offense is a crime of violence by focusing on the elements of the crime, see LaGuerre, 526 F.3d at 1039; Szucz‐Toldy v. Gonzales, 400 F.3d 978, 981 (7th Cir. 2005); Flores, 350 F.3d at 671, and ascertain whether the crime requires as an element the use of physical force, meaning “force . . . that is intended to cause bodily injury.” Flores, 350 F.3d at 672; see also Johnson v. United States, 130 S. Ct. 1265, 1271 (2010). At the time he was convicted, the relevant portion of the domestic battery statute in Illinois prohibited “intentionally or knowingly . . . [c]aus[ing] bodily harm to any family or household member.” 720 ILCS 5/12‐3.2(a)(1) (2002). Because Shehadeh’s domestic battery conviction requires the use of physical force, it qualifies as a crime of violence under 18 U.S.C. § 16(a). See LaGuerre, 526 F.3d at 1039 (citing United States v. Upton, 512 F.3d 394, 405 (7th Cir. 2008)). Although Shehadeh criticizes LaGuerre for not considering the quantum of force needed to violate the statute, we do not look beyond the elements of the crime unless it is divisible, meaning that the statute creates multiple crimes or specifies a variety of ways to commit a single offense, some of which contain the elements of a crime of violence, and some that do not. See Szucz‐Toldy, 400 F.3d at 981; Flores, 350 F.3d at 670; see also United States v. Woods, 576 F.3d 400, 411 (7th Cir. 2009). The portion of the domestic battery statute in Illinois at issue is not divisible.          DENIED. 

289 F.2d 938 129 U.S.P.Q. 335 SENSYTROL CORPORATION, Plaintiff-Appellant,v.RADIO CORPORATION OF AMERICA, Defendant-Appellee, andAmerican Telephone& Telegraph Company et al., Defendants. No. 381, Docket 26838. United States Court of Appeals Second Circuit. Argued May 5, 1961.Decided May 24, 1961. Robert W. Fiddler, New York City (Emil K. Ellis, New York City, on the brief), for plaintiff-appellant. James B. Henry, Jr., New York City (Cahill, Gordon, Reindel & Ohl, and William K. Kerr, New York City, on the brief), for defendant-appellee. Before LUMBARD, Chief Judge, and HINCKS and MOORE, Circuit Judges. PER CURIAM. 1 Affirmed on the opinion below, D.C.S.D.N.Y., 190 F.Supp. 121.

Case: 11-40734 Document: 00511699683 Page: 1 Date Filed: 12/19/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 19, 2011 No. 11-40734 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RAFAEL CASTRO-OLIVARES, also known as Rafael Olivarea-Castro, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:11-CR-252-1 Before KING, HAYNES, and GRAVES, Circuit Judges. PER CURIAM:* The attorney appointed to represent Rafael Castro-Olivares has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Castro-Olivares has filed a response. The record is insufficiently developed to allow consideration at this time of Castro-Olivares’s claim of ineffective assistance of counsel; such a claim generally “cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 11-40734 Document: 00511699683 Page: 2 Date Filed: 12/19/2011 No. 11-40734 existed to develop the record on the merits of the allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and citation omitted). We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as Castro-Olivares’s response. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2 

IN THE ( COURT OF CRIMINAL APPEALS OF TEXAS JOSE GONZALES 111, Petitioner/ THE STATE OF TEXSS/ Appellee. COURT OF CRIMINALappeals PETITION FOR DISCRETIONARY REVIEW FROM THE COURT OF APPEALS AUG 05 2015 THIRTEENTH DISTRICT OF TEXAS Abe) Acosta, Clerk CAUSE NO. 13-13-00011-CR. ORAL ARGUMENT REQUESTED  TABLE OF CONTENTS PAGE NO TABLE OF CONTENTS I. INDEX OF AUTHORITIES II-IV. STATEMENT REGARDING ORAL ARGUMENT Vo STATEMENT OF THE CASE . o - . . VI . STATEMENT REGARDING PROCEDURAL HISTORY.. VII. GROUNDS FOR REVIEW • - VIII-I3i>: ARGUMENTS AND AUTHORITIES 1-16. CONCLUSION 16. PRAYER FOR RELIEF. «... - 16. CERTIFICATE OF SERVICE 16. APPENDIX... end. I.  IINDEX OF AUTHORITIES TEXAS CASE: PAGE NO. BELL Mr. STATE, 356 S.W.3d:528. ... 1. DRAKE v.hSTATE, 686 S.W.2a 935,944 7. ERVlM:ivu; STATE, 991 S.W.2d 804,814 3. EX PARTE CASTILLO, 432 S,W.3d 457.... • ...4,5. EX PARTE CAVAZOS, 203 S=W.3d 333 4,5. EX PARTE DUFFY, 607 S.W.2d 507 16 = EX PARTE RATHNELL, 717 S.W.2d 33,36 .-5. GIRDY V. STATE, 213 S.W.3d 315,319 3. GARCIA V. STATE, 919 S.W.2d 370,381... . 2. HOLLY V.STATE/ 469 S.W.2d 136,137...... 7. LACY V. STATE, 160 TEX.CRIM.9599261773 .W.2d 139^141 7. MENDOZA y. STATE, 1 S.W.3d 829 . . . 1. PHILLIPS V. STATE, 787 S.W.2a 391-95 5. RUSSEL V. STATE, 146 S.W.Sd 705,714..,.........^. 11. VAUGHN v.SSTATE, 239 S.W.3d 351 4. VON BYRD V. STATE, 569 S.W.2d 883,890-91.. ... 11. WILLIAMS V. STATE, 897 S.W.2d 351, CERT.DENIED 516 U.S. 946... 9-10. YGLESIAS V. STSTB/: 252 S.W.3d 733S(HDfii®E^^iREP'D 1. CRAWFORD V. STATE, 685 S.W.2d 343,349-50 ..x....,ll. LANDERS V. STATE, 957 S.W.2d 558r560... 5. FEDERAL CASES: MAYOLA V. ALABAMA, 623 F.2d 992,998. (5TH CIR.1980) 11. U.S. V. DURHAM, 287 F.3D 1297,1304 (llTH CIR.2002). 2. SUPREME COURT CASES: BENTON V . •iHARYLAND , 395 U.S. 784 3. BLOCKBURGER V. U.S., 284 U.S. 294 3. BROWN V.OOHIO, 432 U.S. 161 3. FARETTA V. CALIFORNIA, 422 U.S. 806,821 .... 12. GRADY V. CORBIN, 495 U.S. 299 3- ILLINIOS V. VITALE, U.S. 410 3. STRICKLAND, 466 U.S. 688 ...............6,7,8,12,16 TRAVINO V. THALER/ 569 U.S.^ (2013). 16. UNITED STATES V. CRONIC, 466 AT? 656-57 . 12. U.S. V. DIXON/ 509 U.S. 688 3. II.  AUTHORITIES CONT: PAGE NO^ TEXAS CONSTITUTION: TEX.CONST. ARTICLE 1 § 14 3. UNITED STATES CONSTITUTION: U.S.C.A. CONST, amend 5 ......... 3, U,S.C.A. CONST. AMEND 6 1/2,6/8,12, 11/13. U.S.C.A. (pClNST. AMEND 3j4 ......................................X,2/6,8,12, 11/13. TEXAS STATUTES: V.T.C.A. PENALCOODE § 19.03 (a)(2) ...4,7. V.T.C.A. PENAL CODE § 30.02(a)(2) ..4, V.T.e.A. PENAL CODE § 22.02 5. V.T.C.A. PENALCOODE § 8.01 13,14,15. V.T.C.A. PENAL CODE § 3.04 (a) 7. FAMILY CODE § 71.003 5. FAMILY CODE § 71.0021 (b) ....5. EAMILY CODE § 71.005 (b) 5. TITLE 7 PENAL CODE 7. TITLE 5 PENALCOODE .,..7. V.T.C.C.P. ART.l.lOd) . . 3^ V.T.C.C.P. ART.1,14 8. V.T.C.C.P. ART.21.24. . . 5^7^ V.T.C.C.P. ART.31.01.. .....11. V.T.C.C.P-AART.31.03(a) .9. V.T.C.C.P. ART.42.12 (d)(8)(c)... 12. V.T.C.C.P. ART.46.03. . . 14. CRIMINAL LAW; CRIMINALILaW KEYNOTE-144 4. CRIMINAL LAW KEYNOTS!620 . ( 3 ) . CRIMINAL LAW KEYNOTE-641.13 ( 2) 7. CRIMINAL LAW KEYNOTE-637 . 2 CRIMINAL LAW KEYNOTE-773 13. INDICTMENT AND INFORMATION KEYNOTE-127 INDICTMENT AND INFORMATION KEYNOTE-129(1) 6. OTHER STATUTES: V.T.C.A. PENAL CODE § 3.01(a) .7. III.  AUTHORITIES CONT: PAGE NO. 88 P.A.291 (1879) .16, IV.  STATEMENT REGARDING ORAL ARGUMENT EETITIONER URGES THE COURT TO ALLOW ORAL ARGUMENT FOR THE FOLLOWING REASONS; TO WIT: petitioner's claim of double jeopardy is based on the Gavazos casg 203 S.W-3d 333 (Tex.Grim-App.2006) and the Castillo case that the State cited in its brief: Ex parte Castillo/ 432 S.W.3d 433 (Tex.App. -San Antonio 2014/no pet-h-). Furthermore/ this error is an error whether objected to or not. Petitioner briefed said error in his Pro/se brief which the 13th Court of Appeals failed to adjudicate oniits merits. Because their is a misjoinder issue in multiple count indictment Petitioner needs futher redress from the Court of Appeals to address said grounds. Also because the, record was fully developed before the Court Petitioner claimed ineffective assistance of counsels on both direct appeal as well as trial attorneys. Fetitoner should be given the full adjudication of ineffective assistance of counsel as outlined in Trevino v. Thaler/569 U.S. (2013). Furthermore/ Petitioner urges the Court for oral argument that Petitioner's attorney on direct appeal filed Anders brief and motion to withdraw/ the Court assigned Stephen W. Byrne as attorney who filed motion to withdraw based on ill-health and no Ander's brief. Because he was the attorney of record the 13th Court of appeals was in error and abused their discretion by ruling on Anders brief filed by attorney Fred Jiminez whom was no longer Petitoner's attorney of record and such Anders brief filed was moot by operation of law. Because the remainder of the errors are based on ineffective assistance of counsel Petitioner urges the Court to allow oral argument. V.  STATEMENT OF THE CASE on December 12/ 2011 Jose Gonzales III, hereinstyled Petitioner was charged with Capital Murder in the course of. committting a Burglary of a Habitation of one Leslie Morin/ by shooting Leslie Morin with a firearm. In Count 11/ Petitioner was charged with Burglary of a Habitation on or about December 12/2011 in Nueces County/ Texas- There and then Intentionally and knowingly enter a habitation with out the effective consent of Vida,l Rodriguez who had greater right to said property/ and attempt to commit or committed the felony offense of Aggravated Assault with a Deadly Weapon. Petitioner was employed as a Alice police officer in the City of Alice/ Texas on the:: day of the offense- In a high profile trial Petitioner was convicted on both counts by a biased and highly ^ prejudiced jury- The court sentenced Petitioner to life with out parole on count 1/ and life with parole on count II. Wherein said convictions are constu- tionally infirm- The trial was overwhelmed by the media, and public pressure. Change of venue was warranted. VI-  STATEMENT REGARDING PROCEDURAL HISTORY Petitoner was charged by indictment with one count of :Capital murder during the course of committing a burglary of a habitation, and one count of burglary of a habitation with the intent to commit aggravated assault or a felony. A, jury convicted him of both offenses as alleged in the indictment on December 6/ 2012. The Court assessed punishment at life without the possibility of parole for the Capital Murder charge and life in the Institutional Division of the Texas department of Criminal Justice-CID for the Burglary of a habitation charge- The Petitioner filed notice of appeal on December 10, 2012. Petitioner's attorney of record Fred Jiminez filed an Anders brief on July 18, 2013. On July 24, 2013 Attorney Fred Jiminez filed a motion to withdraw as attorney. On August 16, 2013 the trial court appointed Stephen W. Byrne to represent Petitoner. On September 8^ 2013 Stephen W. Byrne filed motion to withdraw citing ill-health and requested the court to appoint new counsel. No Anders brief was filed and no new attorney was appointed. Petitioner filed a motion in the 13th Court of Appeals for trial record. Petitioner filed his Pro/se brief on May 23, 2014, along with request for oral argument. Furthermore, Petitioner filed a motion in the 13th Court of appeals for his trial attorney to produce the psychological report generated from his court ordered evaluation. Such report was never, made part of the record- The State was ordered to file their brief. The case was due for submission on August 13, 2014. The State filed their brief on August 12, 2014 with a motion for an extension of time. Petitioner filed a motion to hold said appeal in abeyance in order to respond to State's brief. On August 14, 2014 the Court affirmed in an unpublished unsigned boilerplate opinion by Justice Dori Contreras Garza, which appear to be the work of a clerk or para-legal employed by said justice refering soley to the Anders brief that attorney Fred Jiminez submitted that should have been ruled moot. Petitioner filed motion for rehearing on August 30, 2014. The State filed brief agreeing with Petitioner's claim of double jeopardy wherein the San Antonio Court rendered relief for the exact same issue- Rehearing was denied on January 21, 2015- VII -  GROUNDS FOR REVIEW GROUND ONE; PAGE NO. TRIAL COURT ERRED IN ALLOWING PETITIONER TO BE TRIED IN SHACKLES IN VIOLATION OP U-S-C-A. CONST. AMENDS 6TH AND 14TH. TRIAL COURT INFRINGED UPON PETITIONR'S PERSUMPTION OF INNOCENCE/ AND HIS RIGHT TO COUNSEL. INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO PETITIONER BEING SHACKLED AND PROCEDURALLY DEFAULTING PETITIONER'S CLAIM- GROUND TWO; THE STATE COMMITTED DOUBLE JEOPARDY WHEN IT PROSECUTED PETITIONER FOR multiple BURGLARIOUS ENTRIES WHERE THERE WAS ONLY ONE UNLAWFUL ENTRY, IN VIOLATION OF TEXAS CONSTITUTION ARTICLE I/§14 AND U-S.C.A. CONST. AMEND 5TH/ ALSO V.T.C.C.P. ART. 1.10. GROUND THREE; INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO MISJOINDER OF TWO DISTINCT OFFENSES IN THE SAME INDICTMENT. COUNSEL DID NOT FILE PRETRIAL MOTIONS/ NOR OBJECT DURING TRIAL TO MISJOINDER OF OFFENSES THEREBY EFFECTING THE OUTCOME OF TRIAL/ SUCH OBJECTIONS WOULD HAVE RESUffiED IN DIFFERENT OUTCOME. GROUND FOUR; INEFFECTIVE OF COUNSEL; COUNSEL'S FAILURE TO FILE MOTION TO QUASH AFFIDAVIT AND INFORMATION THAT WAS UNSIGNED, HENCE/ PROSE CUTION COMMENCED UPON THESSTRENTGH OF AWUNSIGNED INFORMATION. GROUND FIVE; ineffective ASSISTANCE OF COUNSEL FOR NOT FILING MOTION FOR CHANGE OF VENUE IN HIGH PROFILE CRIMINAL PROSECUTION IN ACCORDANCE WITH V.T.C.C.P. ART.31.03/ WAIVER BY ATTORNEY PROCEDURALLY DEFAULTED PETITIONER'S RIGHT TO R'aSEiSE CLAIM FOR APPELLATE REVIEW. GROUND SIX: TRIAL JUDGE ABUSED HER DISCRETION BY NOT ORDERING CHANGE OF VENUE AFTER IT BECAME IMPeSSIBEE.TO SEAT A JURY THAT WAS UNBAISED IN HIGH PROFILE CASE. GROUND SEVEN; INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL ABANDONED PETITIONER/ ACTING AS NO COUNSEL AT ALL/ MERELY FRIEND OF COURT. VIII. GROUNDS FOR REVIEW CONT: GROUND EIGHT: PAGE NO, PETITIONER'S COUNSEL FOR DIRECT APPEAL FRED JIMINEZ COMMITTED INEFFECTIVE ASSISTANCE OF COUNSEL BY PLACING A FRAUD BEFORE THE COURT BY FILING FRIVOLOUS BRIEF, FOR SUCH ACTION WERE MOTIVATED BY POLITICAL ASPIRATIONS AND NEPOTISM/ AND THE HIGHiEjeOSSltEE NATURE OF THE CASE. THE COURT ASSIGNED STEPHEN W. BYRNESAS APPEAL ATTORNEY/ RENDERING FRED JIMINEZ'S BRIEF MDOTi BY OPERTION OF LAW. STEPHEN W. BYRNE FORCED INDIGENT PETITIONER TO FILE PRO/SE BRIEF WHO IS NOT EDUCATED IN THE LAW. GROUND NINE: PETITIONER'S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT RAISING AN AFFIRMATIVE DEFENSE OF TEMPORARY INSANITY/ AFTER ATTORNEY MADE QUESTION REGARDING PETITIONER'S MENTAL STATE AT THE TIME OF OFFENSE. IX". COMES NOW/ JOSES GONZALESIIII / HEREINSTYLED, PETITIONER/ FILES.; THIS PETITION FOR DISCRETIONARY REVIEW IN ACCORDANCE WI^H TEXAS RULES-^sAPPELLATE PROCEDURE RULE«68. TO WIT: ARGUMENT GROUND ONE: TRIAL COURT ERRED IN ALLOWING PETITONER TO BE TRIED I=N SHACKLES IN VIOLATION OF U.S.C-A. CONST. AMENDS 6TH & 14TH. TRIAL COURT INFRINGED UPON PETITIONER'S PERSUMPTION OF INNOCENCE/ AND HIS RIGHT TO COUNSEL. INEFFECTIVE aSSlSTAHGE OF COHNSBIL FOR OBJECTING TO PETITIONER BEING SHACKLED AND THEREBY PROGEDURALLY DEFAULTING PETITtlONESFSSCCAIHa- Petitioner contends the trial court abused its discretion in requi ring Petitioner to wear shackles during trial/ and the wearing of shackles was not harmless. (RR.Vol.3/ Pg.l26/Line 3-13). From this colloquy between the court and the Petitioner ^estEaihtsr.as articulated by the court line 8, does not justify shackling of the Petitioner. The Court of Criminal' Appeals has repeatedly critized Nueces County Courts for rountinely shackling defendants without articulating a need for restraints. Criminal Law Keynote-637-2: Grounds and circumstances affecting the use of restraints in general. Essential State interest justifying shackling a defendant is found where there is a danger of escape or injury to the jury/ counsel/ or other trial participants. U.S. V- Banegas/ 600 F.3d 342. Criminal Law Keynote-637.2: Rountine shackling oi'defendants is prohibited. Bell v. Stated 356bS.W.3d 528/ rehearing overruled. (Tex-App.Houston[14th Dist.]2008).Generally a defen dant has right to be tried without being shackled/ whether or not the shackles are visible - to the jury? however/the trial r<s&U-r:t has discretion to order restriants if there is a ^showing of a manifest need or execep- tional circumstances/ such as-when a defendant poses a threat to himself or others, yglesias v. State/ 252 S.W.Sd 733/ PDR rev. refd (Tex.App. Houstonv[14th Dist.] 2007). Requiring a defendant to be tried in shackles without adequate reasons is repugnant to iire spirit of r.the law and ideas of justice whether those restriants visiblecor unseen-Grayson v.viState/ 19225.W. 3d 790/ also see/ Mendoza v. State/ 1 S.W.3d 829 (Tex.App.-Corpus Christi 1999)(Reversed Aug.31/1999). The Court of Criminal Appeals admoni shed Nueces County Courts for rountinely shackling defendants. Peitioner was "required to stand every time the jury exited or entered the courtroom as well as move to a different courtroom for furthdfvior dire. Said restri- 1.  ARGUMENTS CONT: ^ants were visible to the jurors.. See Vol ^3 .pg. 126. The Petitioner was denied the persuiaptibn of innocence and every aspect of due process under the U.S. Const.14th Amend/ 6th Amends/ Equal Protection Clause. Ineffective Assistance of Gounseli To Wit: Because Petitioner's counsel did not object to petitioner being shackled/ said counsel procedurally defaulted said claim for purpose of appellate review and such deficient performance prejudiced the out come and because of this act and ommission there is a probability that the outcome would have been different. Shackling of•Petitioner without a demonstrative need compromised the formal dignity of the court and judicial proceedings and lead to harmful collateral effects- Such eff'ects cheifly included curtailing Petitioner's ability to communicate: freely v/with counsel because of the physical limi tations imposed by shackles and simply the distraction and embarrasment they caused the Petitioner. See/ United State/ v. Durham/ 287 F-3d 1297/ 1304 <llth Gir.2002) ("Even if the [shackles] placed on the defendant are visible to the jury/ they still - may... confuse the defendant/ impair his . ability to confer with counsel/ and significantly affected the trial strategy he choose to follow.") . Petitioner's attorney made the follow ing statement to the prospective jurors that tainted the whole trial process: I frankly/ rprobably will not be spending any'tiffie'-qiaeStioning that type of evidence because as I told you right from the get go/ Jose is in fact guilty of criminal homicide/ the question is what sort of criminal hombcide is he in fact guilty of? See/ (Vol.3/pg.147/4-9). Because Petitioner was shackled he did not approve of such trial strategy/ whie^imade the trial process unfair and confused Petitioner/ and impaired , his ability to communicate/ and significantly effected the trial strategy/ wherein Petitioner was not informed of such trial strategy. Petitioner believed that temporary insanity would be the trial strategy and course his attorney would take. It appears that attorney's error for not object ing to shackling/ along with the attorney's anprofessional error that believing that Petitioner was guilty and shackling implied dangerousness in the jurries mind/ serverly infringed on Petitioners persumption of innocence/ was defificent performance that reasonable effected the out come ofcthe case. Petitioner was made to stand for the jury on numerous occassions/ not only were the shackles visible/ but because of the movement/ the chains were heard byithe jurors. In such a high profile trial/ here the errors originated from the trial court's saa sponte order/ and trial court's reason for shackling the Petitioner are insufficient as a matter of law. See/ Garcia v. State/ 919 S.W.2d 370,381 (Tex.Crim.App.- 1994). Because of errors appearing in the record PDR should be granted. 2. GROUND TWO: THE STATE COMMITTED DOUBLE JEOPARDY WHEN IT PROSECUTED PETITIONER FORMMUETIEEE BURGLARIOUS ENTRIES WHERE THERE WASOONEY (1) UNLAWFUL ENTRY. IN VIOLATION OF TEXAS CONST. ARTICE 1§14 AND U.S.C-A- CONST- AMEND. 5th AND V.T.C.C.P. ARTICLE 1.10. TO WIT: Petitioner was convicted in a single trial and given multiple punishments for the same conduct/ thereby invoking the jeopardy clause in the P»S. Const. & the Texas Const. Petitioner was charged by indictment in Count I with coniitting Murder in the course of a Burglary of a Habitation, and in Count II/ Burglary of a Habitation with Intent to Commit Aggravated Assault or a Felony- In Art- 1.10 V.T.C.C.P. States: No person for the same offense shall twice be put inr jeopardyief life-be it-b©rtyf snor shall a person be again put upon for trial for the same offense; after a verdict of not guilty in court of competent jurisdiction. The rule is a State may notpplace a defendant in doiable jeopardy; U.S. Const. V; Tex. Const. Art. I§14; Benton v. Maryland/ 395 U.S. 781 (1969). This means the State may not:. :.(1) prosecute a. defendant fGrvthd same offense after an acquittal; and (2) prosecute a defendant for the same offense after a conviction; or (3) obtain multiple punishments in a single trial for the same offense- Illinios v. Vitale/ 477 U.S. 410 (1980); Brown v. Ohio, 432 U.S- 161 (197? 7). What we are concerned here is; "that Count I for Capital Murder is predicated on a burglarious entry in order to be upgraded to Capital Mureder- See, Tex. Penal Code § 19.03. Count 11, under Penal Code § 30.02 Burglary of a Habitation intent to Commit Aggravated Assault or a Felony- The "same elements" test found in Blockburger v. U.S., 284 U.S. 299 (19- 32) questions whether the State is attempting to punish the defendant twice for the same offense- This test asks the Court to examine each of the statutes to determine whether each require a proof of:apdifferent element the other does not- The Court abandoned the "Same ebsdaet" test by overrulling Grady v. Corbin, 495 U.S. 508 (1990), in U.S. v. Dixon, 509 U.S. 688 (1993) . But in double jeopardy/mCiitiple punishment claims, Blockburger is not the solo focus- Ervin v. State$?991 S.W.2d 804,814 (Tex.Ceim.App.1999)- .IfIthe Court has actual legislative intent of the two statutes, that intent is the critical factor- If not then look at Girdy V. State/ 213 S.W.3d 315/319 (Tex.Crim.App.2006)(if the prosecution, in proving one element of one offense, also necessarily proves another charged offense; if so, there must be clear legislative intent to punish the offense seperately or multiple punishments are barred.) 3. GROUND TWO CONT: The allowable unit of prosecution is the individual entry for burglary is • not the number of individual crimes committed once the defendant makes the unlawful entry. Ex parte Gavazos* 203 S.W.3d 333 (Tex.Grim.- App.2006). Vaughn v. State/ 239 S.W.3d 351 (Tex.App.-San Antonio 2007). Here we have Petitioner sentenced to multiple punishments for one un lawful entry. See/ Ex parte Castillo/ 432 S.W.Sd 457 (Tex-Crim.App.-San Antonio 2014/ no petih; iDouble Jeopardy Keynote-4: Double jeopardy clause impose few/ if any/ limitations on the legislative power to esta blish and define the offense. U.S.C.A. Const.5th Amend. Double Jeopardy Keynbte-144: Convictions for Capital Murder during the course of commit ting Burglary of a Habitation/ and Burglary of a HabitatlgnrrinfefeBt to eommxt a Felony (Aggravated Assault) violated double jeopardy clause; even thou there were two victims/ the alloable unit of prosecution was the unlawful entry. Not the complainant/ and the defendant was punished multiple times' for a single entry. U.S.C.fiA 5; V.T.C.A. Pen. Code § 30.02 Ca). Double Jeopardy Kefnded-r32.1: Thie "most serious offense" which is retained when convictions violate double jeopardy clause is the offense of conviction which the greatest sentence was assessed; other::£getors such as the degree of the felony, range of punishment, and rules govern ing parole eligibility and awarding of good-conduct time/ are not consi derations; overrulfling Landers v- State/ 957 S.W-2d 58/ U.S.C-A. Amend 5. 'h The issue before us is convicting Petitioner of two burglarious entries each with a different complainant but arising from a single unlawful en try of a habitation constitute double jeopardy? The prosecutions theory in the charging instrument that Petitioner committed Capital Murder in the course of committing Burglary of a Habitation in Count:!. The pre requisite of felony murder upgraded to capital ..murder is outlined in V.T.- G-A. Penal Code § 19.03 (a)(2). Wherefore without the burglarious entry '"I Petitioner could only be convicted murder as defined. The integral part of the conviction in Count I is the burglary of a habitation- It was established at trial/ that Petitoner kicked in the front door/ shot/at:: Vidal Rodriguez/ then proceeded to the back bedroom and shot his estranged wife-multiple times. See, (RR.Vol.4/pg.11-17. The theory of the indictment differed from the theory at trial. Wherein the capital murder was placed in a stratigic position of appearing first/ when in fact it was the-' result of Count II/ Burglary of a Habitation intent to commit a Felony (Aggravated Assault). Burglary of a Habitation is complete once the unlawful entry is made, without regard tb whether the intended theft or felony is also completed. V.T.C-A. Penal Code § 30.02 (a)$2)/ V.T.C.A. i ! 4. GROUND TWO CONT: § 22.02 Aggravated Assault (1) Causes serious bodily injury to another, including the person's spouse; or (2) Uses or exhibits a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by by Sections 71.003/ 71.0021 (b)/ 71.005 (b), an offense under this statute is a felony of the second degreeif; (to end of statute)- The allowable unit of prosecution for assaultive offense is each complian- ant. See, Phillips v. State, 787 S.W.2d 391^95(Tex.Crim.App.(1990)(Assault) Ex parte Rathnell, 717 S.W.2d 33 ,36 (Tex. Grim. App .1986) (VoltiintaEy/Manslaugh ter) . Burglary, however is not an assaultive offense; rather, its place ment within Title 2 indicates that the legislature determined burglary to be crime against property. Thus the complainant is not the allowable Vinit-of prosecution in burglary, rather, the allowable unit of prosecution is the unlawful entry. When a defendant is convicted of two or more offense- s that are the "same" for double-jeporady purposes, our case law tells us that the conviction for the most serious offense is retained and the other conviction is set aside. See, Landers v. State, 957 S.W.2d 558/5S9— 60 (Tex.Grim.App.1997). Landers statesr^that the ^ni©st?sgf:ious" offense is determined by the degree of the felony range of punishment and sentence imposed. Landers is overruled by Ex parte Cavazos'. The third reason applies some what differently to the double-jeopardy ebntext than the misjionder context, we.fashioned a rule'designed to best ascertain what offense the State would elected to proceed upon upon at the time of trial. We did so because, in the misjionder context the State is not permitted to prosecute both offenses at the same time. Hence our evaluation of the seriousness of the offense coming into play only when the cahgejof punish ment and the degree of the offense being the same- It is this very rea son why Petitioner need competent legal counsel, for the complexity of such issue. Petitioner's counsel acted as No Counsel at All! We shall visit the misjionder doctrine in our next point of error. For the record reflects that double jeopardy has appeared from the record, to the degree that both sentences are equal in respect that Petitioner was sentenced to life on both Counts, and the Court has ruled in Gavazos, 203 S^W-3d 333 (Tex-Crim-2006)- The most serious offense retained.-In this case both sentences are equal, thereby jeopardy nullifying both- There being jeo pardy appearing from the record, said convictions should be remanded and aggHi^tal?/ or in lieu with instructions. See also. Ex parte Castillo/ 432 S.W.3d 457 (Tex.App.-San Antonio 2014, no pet. h.). 5. GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO MISJIONDER OF TWO DISTINCT OFFENSES IN THE SAME INDICTMENT. COUNSEL DID NOT FILE PRETRIAL MOTION NOR OBJECT DURING TRIAL TO MISJOINDER OF OFFENSES THEREBY EFFECTING THE OUTCOME OF TRIAL. SUCH OBJECTION WOULD HAVE RESULTED IN A DIFFERENT OUTCOME. Criminal Law Keynote-620(3): Mandatory serverance of offenses only applies to joinder of property offenses. V.T.C.A. Penal Code § 3.06(a). Indictment and Information Keynote-127: State is prevented in the presence of objection/ from alleging more than one non-property offense in a single indictment/ regardless of the number of transactions involved. V.T.C-C-P. Art.21.24. Indictment and Information-Reynote-127/129 (1): For State to avoid joinder problems/ indictment for non-property offenses/ whether arising from one transaction or seperate transactions/ should contain only one Count in as many paragraphs as are necessary to allege various manner and means of committing the one alleged offense. V.T.C.C.P • ;\ART. 21.24 (a). Indictment and Information Keynote-196(7): To avail himself of pleading limitations with respect to non-property offenses, defendant should file pretrial motion to quash indictment orrurge/ sometime during trial/ that State make an election; failure to object will result in waiver of plead ing requirements. V-A.T.C.C.P- art- 21.24. Indictment and Information Keyn©te-127: Indictment was invalid on basis of misjoinder where indictment alleged more than r.pne:: rionproperty offense and property offense- INEFFECTIVE ASSISTANCE OF COUNSEL petitioner's counsel not filing Motion to Sever offenses/ nor Motion to Elect/ nor Objecting to misjionder/ resulted in Petitioner's claims to be procedurally defaulted for purposes of appellate reviex^. Prejudiced the outcome of the trial/ resulted in the convictions for two offenses for the same transaction which resulted In two life sentences- Because of counsels deficient performance thereri-s treasonable probability that the outca>!he would have been different- Such ommissions by the Petitioner's counsel gave the State a-tactical advantage over Petitioner/ which resul ted in the trial being unfair and biasd jury. U-S.C.A- Const- Amend- 6 & 14 Counsel's failure to file pretrial motion to quash/ or object was far "below the range expected of reasonable/ professional competent assistance of counsel." Counsel's performance thiis/ "did not measure up to the stan dard required in the holding in StricMand/v466 U.S. 688(1984), and [if it had/] there is a reasonable probability that the results would have been different in the sentencing phase." 6. GROUND THREE CONT: Under the applicable State prcedures there would have been an election, and Petitioner would not have to face two offenses under the same jury. Turning to the prejudice issue: Counsel Abandoned His Client; The manda tory severance under §3.04 (a), applies to joinder of property offenses listed under Title 7 of the Penal Code. See/ Waythe v. State/ 533 S.W.2d 849 iiTex.Criin-App.1976) - Capital Murder is not a property offense. It is listed as an offense against the person, under Title Eive of the Penal Code. V.T.C.A. Penal Coddoig.03.. However , the right iso-foeeesaTi election# which follows from implicit statutory restrictions relating to the manner in which non-property offenses may be joined in an indictment/ is support- edbby precedent# it holds that the legilature/ by its amendment of art. 21i24 / has implicitly prevented the State::fromiiailegiagv. in a. single indictment two or more nonproperty offenses if those offenses arose out of the same criminal "incident/ act or transaction'."" Generally/"transac tion" has come to mean a criminal event and the various paetieulaf offenses committed within that event. See, Drake/ supra/ at pp.945-49/ (Petitioner's original Brief and Appendix pg.l6). Thereby counsel abandoning his client in a^critical stage of the proceeding resulted in inadequacy of representa tion. fhere being ineffective assistance of counsel appearing from the record/ said cause should be reversed and remanded with instructions. INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL'S FAILURE TO FILE MOTION TO QUASH AFFIDAVIT AND INFORMATION THAT WAS UNSIGNED; HENCE PROSECUTION COMMENCED UPON THE STRENGTH OF AN UNSIGNED INFORMATION. GROUND FOUR: TO V3ITi Petitioner's attorney failed to file motion to qaush the Information that does not have signature on it. We are left with the proposition that the case proceeded to a conconclusion with a documentation in the file to reflect that Mark Skurka or anyone else signed the Information charging Petitioner with an offense a further jurisdictional defect of itself. See, Holly v.State//i469 S.W.2d 136 ,137 (Tex .Crim.App. 1970) . See/ Exhibit "A" Pet- Appelate Brief). T-C-C-P- art- 21.21(a)/ Lacy V-State/ 160 Tex. Crim. 95/ 267 S'^;]W-2d 139/141(1948)- Because Petitoner is in need of aJity. at every stage of the proceeding it is emphasized here that attorney's knowledge and skill of the law and practices of the criminal trial and proceedings. Criminal Law Keynote-641.13(2): Performance of defense coun sel was not only unconstitutional unreasonable and ineffective, but coun sel abandoned required duty, of loyalty to his client; Counsel he acted with reckless disregard -for his client's best interest and at times, appearantl^ to weaken his client's case. Just simply poor strategic choices. U-S-C-A- 7. GROUND FOUR CONT: Const- Amend- 6th- It is emphasized that a "defendant need not show that counsel's deficient conduct more than likely altered the outcome of the case." Instead the defendant bears the burden of showing "that there is reasonable probability that/ but for counsel's unprofessional errors, the results of the proceeding^-/would have come /out different. A reasonable probability sufficient to, undermine, confidence in the outcome." Id-/ 694/ 104 S-Ct- at 2068/ T-C-C-P- art-1.14 Waiver of Rights: Punishing a lawyer's intentional and unintentional errors by closing the courthouse door to his client is both senseless and misdirected method of deterring the slight of State rules. It is senseless because unplanned and unintentional action action of any kind generally is not;, subject to deterrance; and to the extent that it is hoped that a; threatend sanction addressed to the defense induce greater care and caution on the part of trial lawyers, thereby forestalling negligent conduct and errors The potential loss of valuable State remedies would be sufficient to this end. And it is misdirected sanction because even if penalization of incompetence or carelessness will enciourage more legal trianing and trial. preparation / the Petitioner / \as oppossed to his lawyer, hardly is the proper recipient of such a penalty. Espicially with fundamental constitutional rights at stake, no fictional relationship of principal-agent or the like can justify holdingthe crimi nal defendant accountable for the naked errorscg^ his attorney. This is espicially true when so many indigent defendants are without any realistic choice in selecting who ultimately represents them at trial. Indeed, if responsibilty for error must be apportioned between the parties, it is the State through its attorney's admissions and certifications policies, that is more fairly held to blame for the fact that practicing lawyers too often are ill-equipped to act carefully and knowledgeably when faced with decisions governed by State procedural requirements. Hence, Petitioner agrees with the proper functioning of our system of criminal justice, necessarily places a heavy reliance on the professionalism and the judgment of trial attorneys. A system that ascribes absolute forefiture of Petition er's constitutional claim where his lawyer manifestly excercise no pro fessional judgment at ail-where carelessness, mistakes, or ignorance is the explanation of the procedural defaults. It is regrettable that certain errors/.that might have been cured earlier had trial counsel acted expediti- ously, must be corrected collaterally and belatedly. Hence, Petitioner s attorney was was deficient and such deficient conduct prejudiced the outcome of the trial. Because of attorney's acts and ommissions said cause should be reversed and remand with instructions- 8. GROUND FIVE: INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT FILING MOTION FOR CHANGE OF VENUE IN HIGH PROFILE CRIMINAL PROSECUTION IN ACCORDANCE WITH V-A-T-C-C-P. ART- 31.03. SAID WAIVER BY ATT0RNEY:EEFSUL"TED PETITIONER' S RIGHT TO RAISE GROUND FOR APPELLATE REVIEW. Petitioner complains that deficient perforraace by attorney defaulted his claim for appellate review, and prejudiced the outcome of trial. Petitioner an Alice police officer was the subject of extensive media coverage in the County and surrounding Counties wherein the instant offense took place. Furthermore/ the Internet and Social Media followed said case. Petitoner was the subject of a documentary/ wherein a series of local television stations broadcast the sventsrand circumstances surrounding the case. See/ (App- Brief Bxh3)li>it "G"). Under art. 31.03 (a)/ a change of venue may be granted in a felony ©r5at.misdemeanor case punish able by confinement on the written motion of the defendant. There was a dangerous combination against him instituted by very influential persons/ by reason of which he canot expect a fair trial. Said publicity was per vasive/ prejudicial/ and inflammatory. Here we aiee concerned with the attorney not filing motion for change of venue/ after it became apperant that Petitioner could not recieye a fair and impartial trial/ and if atorney's deficient performace prejudiced Petitioner? The court asked the panel anyone knows about the case? (RR'iVol .2/pg.30/ line:6-23) Over 70 jurors raised their hands who had:personal knowledge of the case- In VoJ'.2# pg.30/ line: 23S25.) 27 people had already made up their minds could not be fair and impartial. In (RR.Vol.2/ pg-58/1-25/pg.59/1-25 & pg.60/1-25)/ juror no.2 explains in detail about the coverage in the Callei Times. She describes the kidnapping of Petitioner's son/ wherein she has formed an opinion as to the violence of the case. Also defense attorney Woener Stated: "he never seen so many people who have made their minds up in a case/ even with more publicity. fVol.2/pg.56/23-24). Defense counsel should immeadiately filed a Motion for Change of Venues Kealizing from the percentage of potential jurors that had already formed an opinion about the guilt of the Petitioner/ that his elient could not recieve a fair an impartial trial, "a defendant must show an ability to obtain a fair an impartial trial." Coupled with counsel's disenchanment Petitioner could not have recieved a fair and impartial trial because defense counsel a'lready given up. See/ Williams v- State, 897 S.W-2d 351 {Tex-CriM*App.^ cert, denied/ 516 U.S. 946, 116 S.Ct.385, 133 L.Ed.2d 307 (1995). To 9. GROUND FIVE CONT: •gastify a change of venue based on reGen.tfarid'significant ^amounts of media coverage and that publicity regarding similar cases had the effect of creating greater prejudice/ bringing "some afore-thought to people' and making it "very hard" to find a fair and impartial jury. Petitioner's attorney could, have called upon a number of potential witnessesa that were listed on the prosecution's witness Irist for this eventuality. The , prosecution was prepared to fight a'change of venue motion/ witnesses from several television stations/ newspapers/ and other social media outlets were prepared to testify to the number of potential jurors exposed to these segments. See/ (Appellants Brief Exhibit "C"). Petitioner's attorney could have produced the requisite affidavits need to bolster his Client's positior See/ (C.R. pg-30/32/ and 43). Here you have .77 members of the array who have followed the case in the media, who have extensive knowledge of the case, including kidnapping of Petitioner's son/ (ah offense he was not on trial for), which further excebarrated the coverage and the amount of times this coverage was repeated in a course of a year was-astronomlcal- Therefore, even after the court conducted its vlbr.dire, it was clear from the record that the trial court tried to rehabilitate the remainder of this poisoned panel, we must also bear in mind, that the court was in a unique position of hearing the testimony of the .jurors and guaglng the. siacerity of ,their responses in light of the publicity about the case. Petitioner was entitled to a change of venue if he could show that the there;.was influences in the commiiiity which could affect answers on the vior dire. There are two things that distinguish this case from others in which a majority of the venire is familiar with- the case.. First the nature of the publicity is quite different because/ Petitioner was a police officer/ there was a buiglary/ a murder/ kidnapping/ an Amber alert went out/ there was a school lockdown/ there was a Swat-standoff/hostage situation. NewsrStationsrreport ed widely and did extensive coverage on the day of the offense/ and for a year after until the date of trial. Potential jurors had the oppertunity to watch it unfold. Second/ a large number of potential jurors could not set- aside their opinion. This strongly indicates that pretrial publicity result ed in actual identifiable prejudice to Petitioner. Also media coverage was not accurate and objective/ because it reported an actual kidnapp were there was none. Because Petitioner's attorney not filing the motion for change of venue, it rendered him deficient in his performance/ and because of -the ommission/ it is a probability that the outcome of the trial would have been different. It must be remembered that the court ordered a Gag Order on the case. See, (CR.pg.30). Here we have the acts and ommisssions 10. GROUNDdFIVE CONT: of said attorney / who effectively abandoned his his Client. Said cause should be reversed and remanded. GROUND SIX: TRIAL JUDGE ABUSED HER DISCRETION BY NOT ORDERING A CHANGE OF VENUE AFTER IT BECAME IMPOSSIBLE TO SBAffiCMJURYVTHIST WASiiHNBTASDCiNi'HIGH PROFILE CASE. In change of venue cases; T.C.C.P. art.31.01/ the trial judge should have filed her own motion to change venue after the vior dire revealed that Petitioner could not recieve a fair and impartial trial. Because the jury that was actually seated was tainted by the rest of the array, along with the fact that this case was tried in the media before the actual jury was pooled. The Sixth Amendment gives the Petitoner the right to, a fair and impartial trial/ it is the presiding judge who condu cts the vior dire. It was impossible to seat a- jury in this high profile, media driven trial, trial judge abused her discretion. The large number of venire panelist were disqualified for cause, because they could not not set aside their opinions of the. Petiioner's guilts See, (RR-vol.2/pg. 30/9,22/ & pg.31/13-25). See/ 14th Amend U.S. Const. Also/ V.T-C.C.P. art. 31.03 (a)/ Mayola v. Alabama/ 623 F.2d 992/ 998 (5th Cir.l980)/ Von Byrd v. State/ 569 S.W-2d 883/ 890-91/ Russel v. State/ $46 S-W.3d 705/714 (Tex,4App.Texarkana 2004) pet. ref d) / Crawfeord V. State, 685 S.W-2d 343/ 349-r350. The number of jurors that were unable to serve on the jury in this case demonstrates the extent of the pretrial publicity had permeated the community. Here out of 100 a large percentage more than %could be- impag/ tial and already formed their opinions. See, (RR.Vol.2/pg.31/22-25). These panelist could not set aside their opionions is reasn enough to consider the entire community 'infected" by the pretrial publicity and prejudice. Thp inflammatory atmosphere and those actually seated were polsioned by the others. For this reason said cause should be reversed and remanded, and said former trial judge should be taken on vior dire for her acts and ommissions. GROUND SEVEN: INEFFECTIVE ASSISTANCE OF COUNSEL FOR ABANDONING PETITIONER ACTED AS NO COUNSEL AT ALL: ACTING AS MERE FRIEND OF COURT. Said counsel abandoned his Client at critical stage of the proceedings. In the toality of representation by defense counsels', Mr. Mark Woerner, Mr. Steve Schiwetz, and Mr. Mark Gonzales abandoned their client. Mr. Woerner at the orjset of trial was not concerned about shackling of Client, nor did any othei: attorney object- Furthermore, Mr. Woerner told the 11. GROUND SEVEN CONT: that his client was guilty, which nullified any defense in regard to Count II/ and resulted in the jury bein^ biased. A strategy the Petitioner did not approve of/ nor able to communicate his disbelief about such remarks that infringed upon his persumption of innocence, the Supreme Court has longed recgonized that 'the right to counsel is the right to effective assistance of counsel'" under the Sixth Amendment/ Strickland v. Washington 466 D.S. 688 (1984); In this case, We find that the defease counsel did not put up any meaningful defense during the punishment phase/ nor file any,pretrial motion that Petitioner was never convicted of any felony in this State or any other State/ See, V.T.C.C.P. art.42-12(d)(8)(c) states: A defendant is eligible for community supervision under this section only if before the. trial begins the defendant files a sworn ai6£i6ft"to the judge that the defedant has not been previously convicted of a felony in this or any other state/ and the jury enter in the verdict a finding that the infor mation is true. See, (RR.Vol.2/pga9/l-I7). Because of the forceful argument by State's attorney Mr. McCaig that Petitioner was not eligible for proba tion/ Petitioner's attorney should have researched further in the same code to ascertain that Petitioner was eligible for probation. Furthermore/ counsel did not reasonably argue on his client's behalf during punishment phase/ espicially in regard to Count II. See/ (RR.Vol.5.pg.126/3-13). Furthe -more/ defense counsel failed to investigate the extensive media coverage/ Television Documentary which featured Petitioner in family violence^ failed to adequately prepare a defense/ nor subject the State's case to the advesa rial testing process/ by having fellow police officer's who were having illicit affairs with his wife there to testify. Nor did he interview them/ nor have them appear before the court/ Officers Noe Roel/ Emede Reyes/ Buzz esparza/ Luis Rene Ozuna/ and Frank Estrada. Defense Counsel did produce phone records.-See/ petitioner's appeal brief Exhibit "14-16"). That was the extent of the preperatxon:for..the capital murder trial. Eortheraore/ although court ordered physcological testing of the Petitioner/ there was no report by the psychologist included in the record/ nor was he called to testify as to the Petitioner's mental state at the time of offense. Once the attorney told the jury his client was guilty/ he was wholly unprepared to make a platable defense of his theory/ and effectively undermined the persumption of innocence in Count I and Count II. This was no defense at all/ but a tactical retreat/ and pure abandoment of his client. Even grant ing deference to counsel's choices/- we cannot conclude that he need-not undertake further investigation/ "before proceeding with an argument he was wholly unprepared to make. Burger/ 107 S.Ct. at 3126. The Court should find elSarly established that Petitioner's counsels' so abandoned their "overarching duty to advocate the Petioneir's cause/ that the State proceed- 10 GROUND SEVEN CONT: -ing were almost non-adversarial. Informing the jury that his client was guilty/ permeated that guilt thru both counts and destroyed any persumption of innocence f or Gccurit: II - Counsel's actions in regard to sentencing in Count II even more clearly indicate the abandonment of his duty of loyalty/ by switching -from the jury to sentence/ to judge/ and failed to put on any mitigating factors/ and failed to advo cate his client's position. The most striking indication of counsel's performance and failure to fufill his duty of loyalty to his client is from his behavior at the t r i a l itself. "Counsel at the summation of the trial / counsel reffered to the difficulty his client had presented to him. See, (RR.vol.5.pg.99 / line 20-25/ Pg.lOOllilne 1-20) . Counsel is in fact telling the jury he could not present any mitigating eirCQmstances/ when evidence against his client is so overwhelming. In closing counsel lamenated : (RR.Vol.5/pg.102/13-16). Petitioner's attorney did not simply make poor choices; he acted with reckless disregard for his client's case. Whatever the reason the record supports that counsel turned against his client. There is no apperent reason for counseil's behavior/ although he repeated many times that his client was guilty and how difficult this case was. This conflict in loyalty unquestionably affected his represen tation. A defense attorney who abandons his duty of loyalty to his client and effctively helps the State in an effort to obtain a conviction suffers from an obivious conflict of interest^ Sich an attorney/-like unwanted counsel/ ''represent' the defendant only through a legal fiction." See/ Faretta v. California/ 422 D-S- 806#821 (1975). In fact an attorney is burdened by a conflict between his client's interest and his own sympa thies to the prosecution's position is considerably worse than an attorney with loyalty to other defendants/ because the interests of the State and the defedant are necessarily in opposition. As the Supreme Court has assereted: "The right to effective assitance of counsel M thus the right of the accused to require the prosecution's to survive the crucible of meaniningfuii adversarial testing. . . [i]f the process losses its character as confrontation between adversaries/ the constitutional guarantee is violated." See# Cronic# 466 U.S. at 656-57. Petitioner urges the Court/ that reversable error has appeared from the record because of sadd coun sel's deficient performance that prejudiced the outcome of the trial. Said cause should be reversed and remanded. Ground Eight: S>fiT!DafM®^R;';S counsel for direct appeal FRED JIMINEZ COMMITTED lENEFFEC- ASSISTANCE OF COUNSEL BY BLACING A FRAUD BEFORE THE COURT BY FILING 1 3. GROUND EIGHT CONT: FRIVOLOUS BRIEF, FOR SUCH ACTIONS MOTIVATED BY POLITICAL ASPIRATIONS^ NEPOTISM/ AND THE HIGH PROFILE NATURE OF THE CASE. THE COURT ASSIGNED STEPHEN W. BYRNE AS APPEAL ATTORNEY/ RENDERING FRED JIMINEZ'S BRIEF MOOT BY OPERATION OF LAW. STEPHEN W. BYRNE FORCED INDIGENT PETITIONER TO FILE PRO/SE BRIEF WHO IS NOT EDUCATED IN THE LAW- Erejudice/ whether necessary or not/ is established under any applicable standard. Petitioner was.charged with several crimes/ the State assi^^edf counsel Fred Jiminez to represent him on his direct review of convictions. Fred Jiminez's wife was the District attorney for Nueces County/ (Anna Jiminez)/ whose office prosecuted the Petitioner. Becausg -of the conflict of interest ,.iand the high profile nature of the case, said attorney filed a frivolous v, brief/ knowing well that Petitioner's case was filled with meritorious claims. Such insidious intent is demonstrated by the fraudulent document foisted upon the Court as an Anders brief. Because of the political aspirations of Attorney's wife and the high profile nature of'.: the case/ who was at the time of the filing of brief embattled with the State over corruption charges while she was in office/ said attorney did not bring his legal-skill and knowledge to bear. Petitioner would have succeeded . Because Stephen W.. "Brynd was the counsel chosen to repla ce Fred Jiminez / because the court was not satisfied with Fred .jiminez's representation. -The purpose of the SiuxaarAiriend guarantee: is to insure that defendants are represented by counsel and not have to face lybrinth of the criminal justice system unawares. Judicial scrutiny of cioxttk®!''^ performance must be differential (highly)^ Petitioner urges the Court because -the record was fully developed/ Petitioner should be allowed to proceed with ineffective assistance of counsel claims as postulated by the opinion in Trevino v. Thaler/569 U.S._(2013)(citation ommitted). Because of the con flict of interest (See/ Exhibit "D" Appellate Brief)/ and attorneys abandon ing etitioner there is a probability that the outcome would have been different. Because revers.ible error has appeaared in the record,/ Petitione urges the Court to allow him to take said attorneys on vior dire to further develop the record/ as well as reverse and remand said cause. . GROUND NINE: PETIiETIONER' S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT RAISING AN AFFIRMATIVE DEFENSE OF TEMPORARY INSANITY, AFTER ATTORNEY MADE QUESTION REGARDING PETITIONER'S MENTAL STATE AT THE TIME OF OFFENSE. Ciriminal Law Keynote-773: If evidence from any source raises the issue of insanity, the trial court must include an instruction on insanity defense in jury charge.V.A.A.C.P.art.46.03; V.T.C.A., Penal Code §8.01. u 14.' GROUND NINE CONT: When considered with the facts and circumstances concerning an accused and defense/ lay opinion testimony may be sufficient to raise the defense of insanity. V-T.C.A./ Penal Code § 8.01. During the trial on the merits/ Petitioner's counsel raised the issue of Petitioner's mental state that lead up to the commission of the offense. See/(RR.Vol.5/pg.99 line 25#pg. 100 line 1-2G).From the foregoing by Petitioner's counsel demonstrates that he was of the opinion that his client "snapped." Which is eln off color remark of insanity.Petitioner's attorney filed motion for psychological testing which was granted by the court. See/ (CR-pg48). It appears from the record that counsel was headed towards this defense/ then abandoned thi, defense/ even thou that was the agreement between Petitioner and attorney. Knowing that; Petitioner was a former Border patrol Agent/ got hurt on this assignment/ suffered from Post Iraumatic Stress snydrome from this assign ment. Also/ as an Alice Police Officer/ which greatly effected his physco- logical well being/ coupled with the fact that Petitioner's wife was having multiple affairs with Petitioner's co-workers who were Police Officers. Also/ the amount of stress that police officers' experience on a day to day level/ such amount of stress police officers' on a national level is well documented, and the amount of domestic violence involving officers' and members of the armed Forces in like situations. Petitioner's attorney was derilict in his duty for not preparing for this defense, soi if by moral insanity it be understood only a disorder or perverted state of affections or moral powers of the mind/ it cannot soon be disgarded as -affording any shelld from punishment for crime: if it can be truly said that one indulges in violent emotions/ such as remorse/ anger/ shame/ grief/ and the like is afflicted with homocidal insanity/ it would be diffucult/ yes/ impossible/ to say. where sanity ends/ and insanity begins* We say to you/ as a result of our refelections on this branch of the subject/ that if the prisoner was actuated by an irresistable inclination to kill/ and was unable to control or subjugate his intellect... he is entitled to acquittal. (|te Justice PaxsoH/ 88 PA.291/Jan.20/1879). What then is that form of diease/ Dominated Ho'irtocidal Mania/ which will excuse one for having committed a Murder? Cheif justice Gipson calls it that unseen ligament pressing on the mind and drawing it to the consequences which it under coecerion which/ while it results are clearly percieved-/ is incable of resistance-aii invisible inclination to kill. It was error for trial counsel not ask for instructione punishment stage of trial due to insanity/ furthermore/ Petitioner's attor ney and State's attorney Ms. Dorsey put the charge together/ so it was ineffective assitance of counsel that his attorney subjected his cl to such eregrious harm both great and apperant. Ex parte Duffy/ - / is:. Ground Nine Cont: S.W.2d 507 (T6x.Criin.App.1980) . This standard requires that the court evaluate complaint of;ineffective assistance at the punishment Stage deter mining first/ whether counsel was reasonably likely to render ineffective assistance of counsel/ and second/ whether counsel reasonabley rendered ineffective assistance. The record is replete with the litanies of the grave and fatal errors committed by counsel in this case- These errors jctp^ged by the totality of the repesentation / denied him a fair trial. Mer- ly showing that they had some conceivable effect on the proceedings is inadequate. Strickland/ 466 U.S. at 693. Petitioner urges the Court to rev.- said cause and remand with instructions . , CONCLUSION Petitioner would urge the Court/ that he falls under the narrow ruling in Trevino Th4ier/ wherein the record was fully developed and the errors of his attorney were plain and apperrant. Said trial was overwhelmed by media and public pressure/ which resulted in the impossibility to seat a fair and impartial jury^/Petitioner was forced to wear leg shackles during the entire trial with no demonstrative reason by trial judge/ and counsel did not even object/ because he was assisting the State in helping to obtain -a conviction - Counsel rendered ineffective assistance on numerous occasions/ destroying Petitioner's persumption of innocence when he decided to abandon the temporary insanity defense and just throw his client to the wovles. Petitioners appellate attorney completely missed the double jeopar dy issue/and affadavit and information not being signed, as well as was motivated by nepotism and other factors and filed a frivolous brief. From the numerous litanies and acts and ommissions of counsels' in this case.' Said cause should be reversed and remanded. PRAYBB Petitioner Prays that the Court grant him this PDR and any and all relief requested herein. CERTIFICATE OF SERVICE A true and correct copy was hand delievered to the Nueces County district attorney Hark Shurka on 7/ /15. At the litieces County Courthouse/ 901 Leopard St- Corpus Christi# Texas 78401/ also Atty/General P.O.Box 12405/ Aastin/ Texas 78711. Respectfully ^ubnj^tte^ By: Jose (^nzales All #1832029 James v. Allred unit 201 FM 369 N. Iowa Park/ fexas 76367 16-. APPENDIX  NUEOES COUNTY COURTHOUSE CHIEF JUSTICE 901 LEOPARD. 10TH FLOOR ROGELIOVALDEZ CORPUS CHRISTI, TEXAS 78401 361-888-0416 (TEL) JUSTICES 361-888-0794 (FAX) NELDAV. RODRIGUEZ DORI CONTRERAS GARZA HID/M.GO COUNTY G!NAM.BENAV!DES ADMINISTRATION BLDG. GREGORY T. PERKES NOPAL LONGORIA Coitrt of 100 E. CANO. 5TH FLOOR EDINBURG, TEXAS 78539 956-318-2405 (TEL) CLERK DORIAN E. RAMIREZ tS^irteentj) Bisttrict of tlDexasi 956-318-2403 (FAX) August 14, 2014 Hon. Adoifo Aguilo Jr. Hon. Fred Jimenez Assisfent District Attorney Attorney At Law Nueces County Courthouse 509 Lawrence, Suite 301 §©TteDprard - Room 206 Corpus ChristIi TX 78401 Corpus Christi, TX 78401 * DELIVERED VIA E-MAIL * DELIVERED VIA E-MAIL * Mr. Jose Gonzales III Hon. Mark Skurka TDCJ #1832029 District Attorney James V. Allred Unit 901 Leopard Street, Room 205 2101 FM 369 North Corpus Christi, TX 78401 Iowa Park, TX 76367 * DELIVERED VIA E-MAIL * Re: Cause No. 13-13-00.011 -CR Tr.a.No. 11-GR^14W , Style: JOSE GONZALES III v. THE STATE OF rEXAS Enclosed please find the opinion and judgment issued by the Court on this date. Very truly yours, Dorian E. Ramirez, Clerk DER:dsr Enc. cc: State Prosecuting Attorney (DELIVERED VIA E-MAIL) 105th District Court (DELIVERED VIA E-MAIL) Hon. Patsy Perez, District Clerk (DELIVERED VIA E-MAIL) Hon. J. Rolando Olvera Jr., Presiding Judge, 5th Administrative Judicial Region, (DELIVERED VIA E-MAIL)  THE THIRTEENTH COURT OF APPEALS 13-13-00011-CR JOSE GONZALES III V. THE STATE OF TEXAS On Appeal from the 105th District Court of Nueces County, Texas Trial Cause No. 11-CR-4141-D JUDGMENT THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court orders the judgment of the trial court AFFIRMED. We further order this decision certified below for observance. August 14, 2014  NUMBER 13-13-00011-CR OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG JOSE GONZALES III, Appellant, THE STATE OF TEXAS, Appellee. On appeal from the lOSth District Court of Nueces County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Garza and Benavldes Memorandum Opinion by Justice Garza Ajury found appellant Jose Gonzales III guilty of capital murder, a capital felony offense, see Tex. Penal Code Ann. § 19.03(a)(2), (b) (West, Westlaw through 2013 3d C.S.), and burglary of a habitation to cpmn^it afelony (aggravated assault), a first-degree felony offense. See id. §30.02(a)(3), (d)(1) (West, Westlaw through 2013 3d C.S.). The trial court assessed appellant's punishment for the capital murder offense at life without parole, see id. § 12.31(a)(2) (West, Westlaw through 2013 3d C.S.), and assessed punishment for the burglary of a habitation offense at life Imprisonment, with the sentences ordered to run concurrently. Appellant's court-appointed counsel has filed an Anders brief. See Anders v. Califomia, 386 U.S. 738, 744 (1967). We affirm. I. Anders Brief Pursuant to Anders v. Califomia, appellant's court-appointed appellate counsel has fired a brief and a motion to withdraw with this Court, stating that his review of the record yielded no grounds of error upon which an appeal can be predicated. See id. Counsel'sbrief meets the requirements ofAnders as itpresents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 262 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ("In Texas, an Anders brief need not specifically advance 'arguable' points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.") (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503,510 n.3 (Tex. Crim. App. 1991). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at *3 (Tex. Crim. App. June 25, 2014), appellant's counsel carefully discussed why, under controlling authority, there is no reversible error inthe trial court's judgment. Counsel has informed this Court, in writing, that counsel has; (1) notified appellant that counsel has filed an Anders brief and a motion to withdraw; (2) provided the appellant with copies of both pleadings; and (3) informed the appellant of appellant's rights to file a pro se response, and review the 1The Texas Court of Criminal Appeals has held that "the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigient appellant believes thecourt should consider in deciding whether the 2 record preparatory to filing that response. See Anders, 386 U.S. at 744; Kelly, 2014 WL 2865901, at *3, Stafford, 813 S.W.2d at 510 n.3: see also In re Schulman, 252 S.W.3d at 409n.23. The record shows that appellant was provided a copy of the record on October 21, 2013. After this Court granted several motions for extension of time in which to file his pro se response, appellant filed his pro se response on May 23,2014. II. Independent Review Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75,80 (1988). When an Anders brief and a subsequent pro se response are filed, a court of appeals reviews the entire record, and: (1) detemriines that the appeal is wholly frivolous and issues an opinion explaining that it finds no reversible error; or (2) determines that there are arguable grounds for appeal and remands the case to the trial court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826^ 27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not review those grounds until after new counsel has briefed those issues on appeal. Id. We have reviewed the entire record, counsel's brief, and appellant's pro se response, and we have found nothing that would arguably support an appeal. See id. at 827-28 ("Due to the nature of Anders briefs, by indicating in the opinion that itconsidered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1."); case presents any meritorious issues." Inre Schulman, 252 S.W.Sd 403,409 n.23(Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693,696-97 (Tex. App.—Waco 1997, no pet.)). 3 Stafford, 813 S.W.2d at 509. There is no reversible error in the record. Accordingly, the judgment of the trial court Is affinmed. III. Motion Tb Withdraw In accordance with Anders, appellant's attorney has asked this Court for pemiission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jefferyv. State, 903 S.W.2d 776, 779-80 (Tex. App.—Dallas 1995, no jaet.) ("[I]f an attorney believes thei appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attomey must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.") (citations omitted)). We grant counsel's motion to withdraw. Within five days of the date of this Court's opinion, counsel is ordered to send a copy of this opinion and this Court's judgment to appellant and to advise him of his right to file a petition for discretionaiy review.^ See Tex. R. App. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n,35: Ex parte Owens, 206 S.W.3d 670,673 (Tex. Crim. App. 2006). DORI CONTRERAS GARZA, Justice Do not publish. fEX.-R.App.P.47.2<b). Delivered and filed the 14th day of August, 2014. ^ No substitute counsel will be appointed. Siiould appellant wish to seel<further review of this case by the Texas Court of Criminal Appeals, he must either retain an attomey to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals, see Tex. R. App. P. 68.3, and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See Tex: R. App. P. 68.4. 4 ^ms. {/, omaoJ priority UNITED STATES ★ MAIL t ^'•u^' roJ^ /7^,: ^POSTAL SERVICE i express' • by ACCOUNT (If applicable) tOBIGlN (POSTAL SERVICE USE ONLY) • dpo OPTIONS ^Customer Use Only) .•2-Day • Mililary • • 1-C3ay Scheduled Dellvety Data Postage PO ZIP Cods (MM/OD/YY), J • f i:3'7.o£> )ptlona Saturday Dellvety (delivered next business day) zma Dale Accepted (MM/DD/YY^ iduled D.iillve_ry,'nma Insurance Fee ^.^- ,day/HoIlday Dellverv Required (additional (se, v.ha™ a«l able ) 10:30 AM •3;o6pM $ MAM Delivery Required (addlUonal lee, where actable ) tartoUSPS.cnm' orlocal Pnst Ottlce for avallabllllY. g. .S-.- /6 •*12 noon • '" 10:30 AMDeliveryFee Return Receipt Fee-' Uiva Animal TransportationFee vSEPRI^ Time Accepted _ .76rAM - a 'BO Sunday/Holiday Premium F« P^ QKhJ2^- WelgHV . •FlalRate $•• \rA vO- )4 '.•J'V. . /lerr-i • / oL Acceptance Efnpl,<^a Initials 9-^<0 "1- •^O • I j ^cir- IbELIVERr(POSTAL SERVICE USE ONLY) Ennployee Signature \ )r:t- • - Deliveiy Attompl (MM/DDA^ U.S. • am • PM Employee Signature pelivery Attempt (MM/DDA^ Oam Ickup or USPSTracking", visit USPS.com or call 800-222-1811. • PM 00 insurance Included. 3-ADDRESSEE COPY label 11-B,JANUARY 2U14 PSN 7690-02-000-9996 ,s ,© ..e Q .r?\ © © I• Q E mnrnJsmES s MLSJUfllL ' n P<^MSERVIC& ******^- ^ FREE SUPPLIES ONLINE 

Order Michigan Supreme Court Lansing, Michigan September 12, 2017 Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M. McCormack 154678(26)(27) David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder, PEOPLE OF THE STATE OF MICHIGAN, Justices Plaintiff-Appellee, v SC: 154678 COA: 333751 Kent CC: 11-002153-FH 11-002154-FH 11-002222-FH 11-002223-FH 11-002224-FH JOSEPH MICHAEL McINTYRE, Defendant-Appellant. _________________________________________/ On order of the Court, the motion for reconsideration of this Court’s June 27, 2017 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. The motion to stay is DENIED. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. September 12, 2017 a0906 Clerk 

 Appellant did not attempt to demonstrate good cause to excuse his delay. We therefore conclude that the district court did not err in denying his petition as procedurally time barred, and we ORDER the judgment of the district court AFFIRMED. 2 J. Hardesty Douglas tott% , it a) Cherry 2 We have reviewed all documents that appellant has submitted in proper person to the clerk of this court in this matter, and we conclude that no relief based upon those submissions is warranted. To the extent that appellant has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we have declined to consider them in the first instance. The district court did not abuse its discretion in denying appellant's request for the appointment of post-conviction counsel. See NRS 34.750. SUPREME COURT OF NEVADA 2 (0) I94Th  cc: Hon. David B. Barker, District Judge Phillip Smith Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk SUPREME COURT OF NEVADA 3 (0) 1947A e 

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-18-00814-CR IN RE Matthew Paul SURBER Original Mandamus Proceeding 1 PER CURIAM Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Delivered and Filed: November 7, 2018 PETITION FOR WRIT OF MANDAMUS DENIED Relator filed a petition for writ of mandamus complaining the trial court has refused to rule on his motion for nunc pro tunc requesting jail-time credit. To establish a right to mandamus relief in a criminal case, the relator must show the trial court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). A trial court has a ministerial duty to rule on a properly-filed and timely-presented motion. See In re State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). However, a relator has the burden of providing this court with a record sufficient to establish his right to mandamus relief. See TEX. R. APP. P. 52.7(a)(1) (requiring relator to file “a 1 This proceeding arises out of Cause No. 13-0772-CR-A #4, styled The State of Texas v. Matthew Paul Surber, pending in the 2nd 25th Judicial District Court, Guadalupe County, Texas, the Honorable W.C. Kirkendall presiding.  04-18-00814-CR certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding”). In a case such as this one, a relator has the burden to provide the court of appeals with a record showing the trial court was made aware of the motion at issue and that such motion has not been ruled on by the trial court for an unreasonable period of time. See In re Gallardo, 269 S.W.3d 643, 645 (Tex. App.—San Antonio 2008, orig. proceeding). Attached to relator’s petition is a copy of a May 4, 2018 file-stamped copy of relator’s Motion for Nunc Pro Tunc. However, the mandamus record does not contain copies of any letters sent to the trial court or the appropriate court coordinator asking the trial court to rule on his pending motion. Relator must show the matter was brought to the attention of the trial court. In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding); see also In re Bonds, 57 S.W.3d 456, 457 (Tex. App.—San Antonio 2001, orig. proceeding) (conditionally granting petition for writ of mandamus where record reflected relator filed motion and called motion to court’s attention by letter). “Merely filing the matter with the district clerk is not sufficient to impute knowledge of the pending pleading to the trial court.” Hearn, 137 S.W.3d at 685. Because relator has not demonstrated the trial court is aware of his pending motion, we must deny his petition. PER CURIAM Do not publish -2- 

972 P.2d 566 (1999) CITY OF TACOMA, a municipal corporation, Appellant, v. FRANCISCAN FOUNDATION, aka St. Joseph Hospital And Healthcare Center, a Washington nonprofit corporation, Respondent. No. 23107-7-II. Court of Appeals of Washington, Division 2. March 5, 1999. *567 Jean P Homan, Assistant City Attorney, Tacoma, for Appellant. Linda Gayle White Atkins, Davis Wright Tremaine, Bellevue, for Respondent. HOUGHTON, J. The City of Tacoma (City) appeals a trial court order granting summary judgment in favor of St. Joseph Medical Center (St. Joesph). The trial court ruled that the City's anti-discrimination ordinance conflicts with state law and thus is unenforceable against religious nonprofit organizations. We agree and affirm. FACTS The facts are undisputed. St. Joseph is a hospital owned and operated by the Franciscan Health System-West, which is in turn owned and operated by Catholic Health Initiatives. All three entities are religious nonprofit organizations. In fall 1997, two St. Joseph's employees filed separate charges with the Tacoma Human Rights Department alleging religious, disability, race, and national origin discrimination under chapter 1.29 of the Tacoma Municipal Code (TMC).[1] St. Joseph challenged the City's jurisdiction to enforce its ordinance against it because St. Joseph is exempt from the state anti-discrimination law. On December 5, 1997, the City filed a declaratory judgment action in superior court. Both parties moved for summary judgment. The trial court granted St. Joseph's motion and entered a judgment ruling that: (1) the Tacoma Human Rights Department does not have authority under TMC 1.29 to investigate claims of discrimination, make findings, and/or enforce civil penalties against St. Joseph because St. Joseph is expressly exempted from coverage of the state anti-discrimination law; (2) the City's definition of "employer" conflicts with the state definition of "employer" as to religious nonprofit organizations; (3) RCW 49.60.330 prohibits municipalities from enforcing anti-discrimination ordinances in a manner inconsistent with RCW 49.60; and (4) it is inconsistent with RCW 49.60 for the City to enforce its anti-discrimination ordinance against exempt religious organizations such as St. Joseph. The City appeals. ANALYSIS Standard of Review and Burden of Proof The parties agree that review of this case is de novo,[2] but disagree as to St. Joseph's *568 burden of proof in challenging the City's ordinance. The City argues that St. Joseph bears the heavy burden of proving the ordinance unconstitutional beyond a reasonable doubt. See Rabon v. City of Seattle, 135 Wash.2d 278, 287, 957 P.2d 621 (1998) (ordinance is presumed constitutional; heavy burden rests on challenger to establish unconstitutionality); City of Seattle v. Shin, 50 Wash. App. 218, 220, 748 P.2d 643 (party challenging constitutionality of ordinance must establish unconstitutionality beyond a reasonable doubt), review denied, 110 Wash.2d 1025 (1988). St. Joseph counters it merely must show that the City's attempt to enforce its ordinance against St. Joseph exceeds its statutory grant of enforcement authority. The Anti-discrimination Laws Washington's Law Against Discrimination, RCW 49.60, permits injured persons to bring a civil action for employment discrimination. RCW 49.60.010, .030(2). Its definition of "employer" "includes any person acting in the interest of an employer ... who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit."[3] RCW 49.60.040(3). The law permits first-class cities to enact their own anti-discrimination ordinances and provide administrative remedies, as long as such ordinances and remedies are consistent with state law. RCW 49.60.330. The Tacoma City Municipal Code contains an anti-discrimination ordinance that defines "employer" as "any person ... acting in the interests of an employer ... or who has any persons in his, her or its employ." TMC 1.29.030(E). Thus, it includes religious nonprofit organizations.[4] The City's Enforcement Powers The parties' disagreement regarding St. Joseph's burden of proof stems from their disagreement as to the source of the City's power to provide and enforce civil remedies for discrimination. St. Joseph argues that cities have no inherent authority under their police powers to enforce civil and equitable remedies.[5] Thus, the City's only power to provide such remedies arises from RCW 49.60.330.[6] St. Joseph, therefore, limits the inquiry to whether the City can provide anti-discrimination remedies that exceed the scope of authority granted it under RCW 49.60.330. Thus, St. Joseph asserts, the answer is "no" and only statutory construction is required to find in St. Joseph's favor. The City contends that its constitutional grant of police powers includes civil and equitable enforcement measures.[7] The City claims that RCW 49.60.330 is permissive, not restrictive, and it can, therefore, provide *569 remedies greater than those permitted by the statute unless a constitutional conflict is shown. In either case, the question is whether the City's ordinance conflicts with the state law. Because it clearly does, it must yield under both standards.[8] Conflict Analysis Under their constitutionally granted police powers, cities may enact ordinances prohibiting the same acts state law prohibits as long as the city ordinance does not conflict with the general laws of the state. City of Bellingham v. Schampera, 57 Wash.2d 106, 109, 356 P.2d 292 (1960). A local ordinance does not conflict with state law merely because one prohibits a wider scope of activity than the other. City of Seattle v. Eze, 111 Wash.2d 22, 33, 759 P.2d 366, 78 A.L.R.4th 1115 (1988) (citing Town of Republic v. Brown, 97 Wash.2d 915, 919, 652 P.2d 955 (1982)). In determining whether an ordinance conflicts with general laws, the test is: "whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Schampera, 57 Wash.2d at 111, 356 P.2d 292 (quoting Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519 (1923)). The City attempts to justify its ordinance under the foregoing rule by asserting that the state anti-discrimination law does not grant religious nonprofit groups a "license to discriminate." Rather, both the state and local schemes are intended to prohibit discrimination. Therefore the local ordinance does not conflict; it merely goes further in its prohibitions. See Brown v. City of Yakima, 116 Wash.2d 556, 562, 807 P.2d 353 (1991) ("Where both the ordinance and the statute are prohibitory, and the difference between them is that the ordinance goes further in its prohibition, they are not deemed inconsistent...."); State v. Rabon, 45 Wash.App. 832, 838, 727 P.2d 995 (1986) (question is whether statute authorizes conduct banned by ordinance). The City's literal interpretation of the rule ignores that the state law expressly exempts religious nonprofit groups.[9] The cases relied upon by the City merely show that local regulations may prohibit conduct that similar state laws fail to address.[10]See, e.g., Shin, 50 Wash.App. at 226-27, 748 P.2d 643 (city may impose duty on parents to report child abuse though state statute omits parents from list of persons required to report); Rabon, 45 Wash.App. at 838, 727 P.2d 995 (state law banning chako sticks under certain circumstances does not preclude city from banning them entirely); Seattle Newspaper-Web Pressmen's Union Local No. 26 v. City of Seattle, 24 Wash.App. 462, 468-69, 604 P.2d 170 (1979) (ordinance may extend prohibition on unfair labor practices to practices not covered under state statute). Although the state anti-discrimination law does not "authorize" religious groups to discriminate, it does "authorize" their exemption from the law's reach. The statutory *570 language indicates an affirmative policy choice rather than an omission. Because the City's ordinance contravenes this policy choice, it must give way. See Seattle Newspaper-Web, 24 Wash.App. at 469, 604 P.2d 170 (ordinance may be more restrictive than state statute only if statute does not forbid the more restrictive enactment) (emphasis added) (citing Lenci v. City of Seattle, 63 Wash.2d 664, 670-71, 388 P.2d 926 (1964)). Affirmed. BRIDGEWATER, C.J., and HUNT, J., concur. NOTES [1] Both complainants also filed charges under Title VII with the EEOC. [2] See Reid v. Pierce County, 136 Wash.2d 195, 201, 961 P.2d 333 (1998) (in reviewing a summary judgment order, reviewing court engages in same inquiry as the trial court); City of Seattle v. Williams, 128 Wash.2d 341, 347, 908 P.2d 359 (1995) (questions of law are reviewed de novo) (citing State v. McCormack, 117 Wash.2d 141, 143, 812 P.2d 483 (1991), cert. denied, 502 U.S. 1111, 112 S.Ct. 1215, 117 L.Ed.2d 453 (1992)). [3] Persons aggrieved by the discrimination of religious nonprofit groups can seek redress under Title VII. See 42 U.S.C. § 2000e-1(a). [4] Although not at issue in this case, the City ordinance also purports to cover employers with fewer than eight employees, which are also exempt from the state law. [5] In support of this proposition, St. Joseph cites State v. Brennan, 76 Wash.App. 347, 884 P.2d 1343 (1994). The Brennan court held that the Legislature could not delegate equitable powers to the district courts because the state constitution vests exclusive equitable jurisdiction in the superior courts. Brennan, 76 Wash.App. at 349, 356, 884 P.2d 1343. [6] RCW 49.60.330 provides: Any [first-class city] ... may enact resolutions or ordinances consistent with this chapter to provide administrative and/or judicial remedies for any form of discrimination proscribed by this chapter .... The superior courts shall have jurisdiction to hear all matters relating to violation and enforcement of such resolutions or ordinances, including ... the award of such remedies and civil penalties as are consistent with this chapter .... Any local resolution or ordinance not inconsistent with this chapter may provide, after a finding of reasonable cause to believe that discrimination has occurred, for the filing of an action in, or the removal of the matter to, the superior court. (emphasis added). [7] Article XI, section 11 of the Washington Constitution grants first-class cities the power to "make and enforce within [their] limits all such local police, sanitary and other regulations as are not in conflict with general laws." This delegation of power is "as ample within its limits as that possessed by the legislature itself." Williams, 128 Wash.2d at 359, 908 P.2d 359. [8] Little authority elucidates the issue of the derivation and extent of a city's civil enforcement powers. Cities, pursuant to their police powers, possessed authority to prohibit discrimination before the enactment of RCW 49.60.330, but the extent of their power to create and enforce remedies apart from criminal sanctions was unclear. See AGO 1981, No. 14, at 3-4. In 1981, the Legislature enacted RCW 49.60.330 to "authorize[] what ha[d] been "existing in law." AGO 1981, No. 14, at 7 (quoting Senator Talmadge); see Laws of 1981, ch. 259, § 5. The amendment's legislative history confirms that the amendment was intended to be permissive, not preemptive, see AGO 1981, No. 14, at 6-7, but otherwise sheds little light on the question of what cities' preexisting enforcement powers were. [9] The religious exemption has been part of the anti-discrimination statute since it was enacted. It has never been amended, although the section in which it is contained has been amended many times, and the Legislature twice has considered narrowing or deleting the exemption. Farnam v. CRISTA Ministries, 116 Wash.2d 659, 673 n. 4, 807 P.2d 830 (1991) (citations omitted). [10] None of the cases the City cites in support of its contention that no conflict exists where the local prohibitory scheme merely goes further than the state scheme analyzes a state law containing an express exemption. See Rabon v. City of Seattle, 135 Wash.2d at 288, 957 P.2d 621; Brown, 116 Wash.2d at 558, 807 P.2d 353; Eze, 111 Wash.2d at 33, 759 P.2d 366; State ex rel. Schillberg v. Everett Dist. Justice Court, 92 Wash.2d 106, 108, 594 P.2d 448 (1979); Shin, 50 Wash.App. at 221 n. 3, 748 P.2d 643; State v. Rabon, 45 Wash.App. at 833 n. 1, 727 P.2d 995.

16 B.R. 176 (1981) In re T.E. MERCER TRUCKING COMPANY, Debtor. FRUEHAUF CORPORATION, Plaintiff, v. T.E. MERCER TRUCKING COMPANY, Debtor, and Ben Gilbert, Operating Receiver and Trustee, Defendants. In re G.E.M. STORAGE & TERMINAL COMPANY, INC., Debtor. FRUEHAUF CORPORATION, Plaintiff, v. G.E.M. STORAGE & TERMINAL COMPANY, Debtor, and Ben Gilbert, Operating Receiver and Trustee, Defendants. Ben GILBERT, Operating Receiver and Trustee; T.E. Mercer Trucking Company; and G.E.M. Storage & Terminal Company, Inc., Plaintiffs, v. FRUEHAUF CORPORATION, Defendant. Tommy G. MERCER and Wanda Jo Mercer, Intervening Plaintiffs, v. FRUEHAUF CORPORATION, Defendant. Bankruptcy Nos. BK 4-77-345, BK 4-77-346, Civ. A. No. CA 4-79-55. United States Bankruptcy Court, N.D. Texas, Fort Worth Division. August 11, 1981. *177 *178 *179 *180 JOHN FLOWERS, Bankruptcy Judge. This memorandum announces my rulings on the summary judgment motions filed in the above-captioned cases. This case arose under the Bankruptcy Act of 1898 and I will hear it in two capacities, as a bankruptcy judge in connection with the adversary proceeding filed in the Bankruptcy Court by Fruehauf, and as a special master appointed by Judge Mahon of the U.S. District Court in connection with the suit pending in that court between the trustee, the debtors, Wanda Jo Mercer and Tommy Mercer as intervenors, and Fruehauf. However as it appears that the legal and factual issues are identical in all the proceedings, my rulings announced herein will be applicable to all the cases. All parties have sought summary judgment on issues arising out of § 20a of the Interstate Commerce Act. Fruehauf seeks summary judgment on numerous other legal issues including limitations, estoppel and subordination. The court record consists of various stipulations, interrogatories and depositions. On the current state of the record, most of the motions for summary judgment are denied in view of the issues of fact that must be resolved before a judgment may properly be rendered. In this memorandum I will discuss the operative legal principals in order to elucidate the parties as to the fact issues that remain unresolved. I. SECTION 20a OF THE INTERSTATE COMMERCE ACT Fruehauf Corporation has filed a complaint for relief from the stay asserting that T.E. Mercer Trucking Company and G.E.M. Storage & Terminal Company, Inc. are indebted to Fruehauf. The alleged indebtedness is evidenced by a series of voluminous loan agreements. Fruehauf claims mortgages and security interests in practically all assets of the debtor corporations, including equipment, vehicles, inventory, accounts, operating authorities and real property. The debtor corporations, the trustee and the intervenors[1] urge the application of § 20a of the Interstate Commerce Act as a defense to liability and affirmatively as the basis of a claim against Fruehauf.[2] Fruehauf replies that § 20a is inapplicable because the loan agreements evidencing the debt are not "securities" and therefore fall outside the jurisdiction of the Interstate Commerce Commission. Upon review of the authorities I am of the opinion that it is immaterial whether the loan agreements *181 fall within the purview of a "security" as defined by § 20a of the Interstate Commerce Act. "The starting point in every case involving the construction of a statute is the language itself." International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 558, 99 S.Ct. 790, 795, 58 L.Ed.2d 808 (1979). Section 20a of the Interstate Commerce Act provides in pertinent part: "ISSUANCE OF SECURITIES; ASSUMPTION OF OBLIGATIONS; AUTHORIZATION (2) It shall be unlawful for any carrier to issue any share of capital stock or any bond or other evidence of interest in or indebtedness of the carrier (hereinafter in this section collectively termed "securities") or to assume any obligation or liability as lessor, lessee, guarantor, indorser, surety, or otherwise, in respect of the securities of any other person, natural or artificial, even though permitted by the authority creating the carrier corporation, unless and until, and then only to the extent that, upon application by the carrier, and after investigation by the commission of the purposes and uses of the proposed issue and the proceeds thereof, or of the proposed assumption of obligation or liability in respect of the securities of any other person, natural or artificial, the commission by order authorizes such issue or assumption. The commission shall make such order only if it finds that such issue or assumption: (a) is for some lawful object within its corporate purposes, and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the carrier of service to the public as a common carrier, and which will not impair its ability to perform that service, and (b) is reasonably necessary and appropriate for such purpose." In 1935, the scope of the Interstate Commerce Act (ICA) was extended to cover common carrier by motor vehicle, see 49 U.S.C. §§ 301-327, Part II of the ICA. Section 214 of the ICA, 49 U.S.C. § 314 (now 49 U.S.C. § 11302) makes the provisions of Sections 20a(2)-(11) applicable to motor common carriers. Section 20a of the Interstate Commerce Act has been aptly described as an "early essay in securities legislation," see United States v. New York, New Haven & Hartford Railroad, 276 F.2d 525 (2nd Cir. 1959), cert. denied, 362 U.S. 961, 80 S.Ct. 877, 4 L.Ed.2d 876 (1960). A threshold issue is whether this essay in securities legislation may be asserted by the trustee, the debtor corporation and the intervenors against Fruehauf's claim. A review of the legislative history and court interpretations of the purpose of § 20a provide some insight to whether these parties have standing to urge the application of the statute. The legislative history reflects that one of the purposes Congress enacted § 20a was to protect investors. Consider the somewhat optimistic arguments of Representative Rayburn who sponsored an early draft of the statute: "Of course, the credit of the railroads has been destroyed. But if we write into the law of the land a statute to the effect that before a railroad can issue new securities, before it can put them on the market it must come before the properly constituted government agency, lay the full facts of its financial situation before that body, tell that body what it intends to do with the money derived from the sale of the issue of securities and after it has received the approval of that regulating body and it goes out and puts those securities on the market then the Interstate Commerce Commission by this law is empowered at any time to call it to account and have it tell to that regulating body that it expended the money, the proceeds of the sale of securities, for the purposes for which it had made the application. Then we shall have railroad securities that will stand for value in the markets of the country and in the markets of all the world." 59 Cong.Rec. 8376 (1919). In Interstate Investors, Inc. v. United States, 287 F.Supp. 374, 387 (S.D.N.Y., 1968) *182 (three-judge court) aff'd per curiam, 393 U.S. 479, 89 S.Ct. 707, 21 L.Ed.2d 687 (1969), the court stated the dominant Congressional purpose in enacting § 20a was to protect investors in the securities of railroads. The remedies for violations of the statute confirm that the statute is intended to protect investors. Section 20a(11) provides that the holder of a void security acquired directly from the carrier may at his option rescind the transaction and upon surrender of the security recover the consideration given therefor. If a voided security is acquired for value and in good faith and without notice that the issue or assumption is void, such person may in a suit hold jointly and severally liable for the full amount of the damage sustained by him, the carrier which issued the security and its directors and officers who participated in the authorizing, issuing or selling of the security. Interestingly, Congress omitted the "good faith" requirement with respect to the holders of void securities acquired directly from the carrier which appears to encourage the direct extension of credit to a carrier. Section 20a has somewhat of a dual function in view of the role given the Interstate Commerce Commission by the statute. The Commission was created for the purpose of facilitating commerce throughout the nation, Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907). The Interstate Commerce Commission may approve an application for authorization to issue securities, only if it finds that such issue or assumption: (a) is for some lawful object within its corporate purposes, and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the carrier of service to the public as a common carrier, and which will not impair its ability to perform that service, and (b) is reasonably necessary and appropriate for such purpose. Section 20a(2). The Second Circuit has expounded upon the "in the public interest" function of Section 20a, ". . . we prefer a construction of Section 20a of the Interstate Commerce Act that gives effect to its remedial purposes to give the commission control over stock and bond issues in order to avoid for the future abuses in the issuance of securities whereby railroad properties have been bankrupted or saddled with almost overwhelming burdens of indebtedness, which have not increased the amount of or value of property devoted to the public service, have not improved the service rendered, and have on the whole had the effect of increasing the charges for the service," United States of America v. New York, New Haven & Hartford Railroad Co., et al, 276 F.2d 525 (2nd Cir. 1959). I find that the purpose and function of § 20a is twofold, (1) to protect investors from worthless issues of railroad and common carrier securities, and (2) to protect the public interest in the efficient and economical operation of interstate carriers. Consequently this "early essay" in securities regulation conceivably may operate to protect both purchasers of securities and the public interest by preserving the financial integrity of the railroad and common carrier securities. With the above considerations in mind, I turn to an issue that has been marginally addressed by the parties. The trustee and Mercer seek to avoid liability on the theory that the consolidated loan agreements are § 20a securities. It is argued that the securities are void because a statutory duty has been breached by the failure to have Commission approval of the issue. However, a breach of a statutory duty does not give rise to a private cause of action to every person injured by the statutory breach. The law clearly demands that the statutory breach must cause injury to one of the class that the statute is designed to protect, Greater Iowa Corporation v. McLendon, 378 F.2d 783, 790 (8th Cir. 1967); Cambridge Capital Corporation v. Northwestern National Bank, 350 F.Supp. 829 (D.Minn., 1972). *183 Section 20a does not purport to protect the issuer of securities. In fact it places the risk of non-compliance upon the issuer and its directors, officers, attorneys and other agents, who participated in the issuing of the voided security. The trustee and Mercer seek to shift the risk of noncompliance upon the holder (Fruehauf) by requesting the court to void the debt or in the alternative void the security interests and mortgages that secure the debt. The remedy for violation of § 20a proposed by the trustee, which in effect penalizes the investor, stands contrary to the primary purpose of the statute which is to protect investors. The trustee and debtor have focused on the use of the "security . . . shall be void" language. The court, however in interpreting a statute, must not be guided by a single sentence or member of a sentence, but must look to the provisions of the whole law and to its object and policy, Philbrook v. Glodgett, 421 U.S. 707, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975). The statute clearly contemplates that the holder of an unauthorized § 20a security may assert a rescission claim against the issuer. If the § 20a security is in the form of a bond or other debt instrument secured by an interest in property, I am of the opinion that the bondholder's rescission claim under § 20a(11) would likewise be treated as secured in the bankruptcy context. It would be absurd to interpret this investor protective statute so as to give the investor a remedy of rescission, yet if such remedy is exercised the investor forfeits any liens securing the indebtedness. In interpreting a statute, the courts are to respect the policy of Congress so as not to impute to the statute a self-defeating, if not disingenuous purpose, Dalia v. U.S., 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979). The trustee and Mercer have raised the spectre of Fruehauf's heavy-handed lending practices in attacking Fruehauf's claim. Noting that the proceeds of the trucking company loan went toward the retirement of personal debts and beer inventories, the brief of the Plaintiff-Debtor raises the rhetorical question: "Is there the slightest doubt in the Court's mind what would have happened to this agreement had it been presented to the Interstate Commerce Commission for approval?" I have no serious doubts about how the Commission would have ruled with respect to some of the indebtedness in view of the posture taken by the Commission in numerous decisions, see Mutrie Motor Transportation, Inc., 116 Motor Carrier Cases 99 (1972). But I do entertain serious doubts that Congress intended § 20a to be used as a vehicle by carriers to avoid undesired investment obligations. This is not to say that I endorse Fruehauf's alleged conduct which suggests an intent on Fruehauf's part to circumvent I.C.C. review of the consolidated loan agreements. Fruehauf's conduct will be carefully scrutinized for misconduct that may mandate application of the court's equitable subordination powers. However Congress chose not to include a statutory remedy for misconduct on the part of the holder of a § 20a security. Consequently I hold that the trustee and Mercer lack standing to assert a claim based on the alleged violation of § 20a of the I.C.C. Act. Thus it is unnecessary to decide whether the consolidated loan agreements are § 20a securities.[3] Fruehauf's *184 motion for summary judgment on this issue will be granted. II. THE ALLOCATION OF DEBT LIABILITY AND USURY CLAIMS The court has under review a series of agreements regarding the indebtedness owing from what are described as the "Corporate Debtors" and the "Guarantors." These agreements were preceded by loans to various entities at different times, the details of which are not before the court. The parties agree at least some of the prior loans were to entities other than the "Corporate Debtors" and the "Guarantors." The initial consolidated loan agreement dated December 1, 1969, contains a listing and acknowledgment of existing obligations owing to Fruehauf. The agreement recites, "Whereas the parties hereto desire to consolidate the obligations owing to Fruehauf in a single loan arrangement without altering the existing obligations or security given therefor." After reciting various debts and future advances the agreements sets forth a payment schedule, with payments to be made by the Corporate Debtors. Apparently only two corporate entities survived to actively participate in the September 16, 1977 agreement, T.E. Mercer Trucking Company and G.E.M. Storage & Terminal Co., Inc. In this agreement the corporate debtor and guarantor parties "recognize, admit and affirm all of the foregoing indebtedness owing by them, individually, jointly or severally, to Fruehauf Corporation." Fruehauf was given the right to "undertake and order the liquidation of some, any and all of the assets of either or both of said corporations and/or the equipment company and/or claimed sole proprietorships and apply the net proceeds thereof to the indebtednesses owing by the debtor and guarantor parties to Fruehauf Corporation." Oddly enough none of the various agreements go so far as to recite that the corporate debtors are jointly and severally liable for the entire indebtedness. The trustee, debtors and intervenors contend that the 1969 agreement constituted simply a convenient means to include in one document provisions relating to different loans, and thus each entity is obligated only for the repayment of monies that went to its benefit. Fruehauf responds that the parties intended the corporate debtors to be co-obligors under the consolidated loan agreement in spite of the fact that they received unequal benefits. Fruehauf asserts that a "community of interest" provides sufficient consideration to create a joint and several obligation and thus each corporate debtor is liable for the entire indebtedness. The central issue is whether the parties intended the "corporate debtors" to be jointly and severally liable for the aggregate amount of indebtedness reflected in the various consolidated loan agreements or whether the parties intended the agreements to be a mere reaffirmation of existing indebtedness with each corporate debtor liable only for its historical share of the total indebtedness recited.[4] This issue is *185 important because it will determine the amount of each entity's liability to Fruehauf. Once each entity's liability is established the effective interest rate charged by Fruehauf may be calculated by comparing the interest charged to each entity's debt liability. If each corporate debtor were obligated for the entire indebtedness the interest to debt ratio would obviously be less than if each debtor is liable only for its historical share of the debt. Ultimately the court must interpret the language of the consolidated loan agreements. Under the parole evidence rule, the standard of interpretation of a written contract is usually the meaning that would be attached to it by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to, and contemporaneous with, the making of the contract other than the oral statements by the parties of what they intended it to mean, Zell v. American Seating Co., 138 F.2d 641 (2nd Cir. 1943). I believe it appropriate to allow the parties an opportunity to develop the circumstances surrounding the execution of the loan agreements for the purpose of ascertaining the parties' intent. Consequently I will deny summary judgment on the issue of whether each corporate debtor was intended to be liable on the entire consolidated indebtedness or only its historical share. Several subsidiary issues will arise upon my deciding the above issue. Assuming a finding that the "corporate debtors" intended to be jointly and severally liable for the entire consolidated indebtedness, the issue of sufficient consideration comes into view. The trustee, debtors and intervenors rely on V.T.C.S. art. 1302-2.06 which provides that no corporation "shall create any indebtedness whatever except for money paid, labor done, which is reasonably worth at least the sum at which it was taken by the corporation, or property actually received, reasonably worth at least the sum at which it was taken by the corporation." This statute is declaratory of the common law of ultra vires as it existed before its enactment, Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 423 S.W.2d 645 (Tex.Civ.App.—Houston [14th Dist., 1967]). Historically Texas courts were reluctant to enforce one entity's indebtedness against a guarantor corporation where the guarantor received no substantial benefit from the guarantee, see Rio Grande Valley Gas Co. v. Grand Rapids Store Equipment Corporation, 57 S.W.2d 348 (Tex.Civ.App.—San Antonio, 1933) no writ. hist. However by the enactment of art. 2.04 A of the Texas Business Corporation Act the legislature precluded a corporation from pleading ultra vires as the basis for a claim or defense when sued on its contract, Cooper Petroleum, supra; Inter-Continental Corp. v. Moody, 411 S.W.2d 578, (Tex.Civ.App.— Houston, 1967) and Republic National Bank of Dallas v. Whitten, 383 S.W.2d 207 (Tex. Civ.App.—Dallas, 1964) aff'd 397 S.W.2d 415 (Tex., 1966). Consequently the provisions of art. 1302-2.06 may only be asserted as the basis for a claim against the directors and officers who have benefited from the ultra vires activities. Thus in the event the consolidated loan agreements were intended to create a joint and several liability on the part of the debtor corporations, the trustee and Mercer may not assert art. 1302-2.06 as a defense to joint and several liability of each debtor corporation. I am further of the opinion that the trustee and Mercer may not assert art. 1302-2.06 for the purpose of determining each debtor corporation's principal balance owing in order to set up a usury claim against Fruehauf. Returning now to the primary fact inquiry and assuming I find the parties intended that the corporate debtors would be liable only for their historical portion of the consolidated indebtedness (as the trustee and Mercer contend), an alternative usury claim might be asserted under the rule of Windhorst v. Adcock Pipe and Supply, 547 S.W.2d 260 (Tex., 1977). This usury claim would be based on the fact that although each debtor corporation is liable only to the *186 extent of its historical portion of the consolidated indebtedness, Fruehauf charged or received from each debtor corporation interest on the entire indebtedness. The ratio of total interest received or charged vis-a-vis the amount actually owed by each corporate debtor could exceed the legal interest rates. To illustrate this usury theory, assume that three individuals, A, B, C, each purchases from store F a $200 item on credit. Each signs a promissory note for $200 payable at a lawful annual percentage rate of 18%. One year later the store sends A a statement charging interest in the amount of $108 (18% times $600) intending to hold A liable for the entire amount of interest charged. Under the Windhorst decision, A would have a usury claim against F whether or not any interest was actually paid. Assume that A, B, C and store F executed a consolidated agreement which lists all indebtedness owed by A, B, and C, however it provides that F may recover from A only its share of principal and interest, and likewise limits F's recovery from B and C to their proportionate share of accrued interest and principal. In such case F has "contracted" for legal interest. But further assume that F subsequently sends A a bill for the total accrued interest of $108. In such event F would have "charged" A usurious interest within the meaning of Article 5069-1.06 as interpreted by the Windhorst decision, supra. The action taken by F in billing A for the entire amount manifests an intent to repudiate the prior agreement and charge a usurious interest rate to A. The subjective intent of the creditor to charge only a legal rate of interest is immaterial, see Cochran v. American Savings and Loan, 586 S.W.2d 849 (Tex., 1979). To avoid usury penalties F must plead and prove that such charge and receipt of usury was a result of accidental and bona fide error. Finally it is possible to interpret the consolidated loan agreement in a manner such that the parties "contracted" for a usurious interest rate. Such construction would require my finding that although Fruehauf could hold each corporate debtor liable only for its historical portion of the consolidated debt, Fruehauf could nevertheless hold each corporate debtor responsible for the aggregate interest accruing on the entire consolidated debt. I find the language of the agreements sufficiently ambiguous so that as a matter of law I am unable to preclude such a construction. However it is fair to state at this juncture that to interpret the consolidated loan agreements so that the corporate debtors are not jointly and severally liable on the consolidated debt and yet are jointly and severally liable as to the accrued interest on the consolidated debt would be a bit strained. I am unable to conclude as a matter of law that Fruehauf is not liable for the usury penalties provided by article 5069-1.06 V.T.C.S. Consequently the motion for summary judgment on the usury issue is denied in view of the factual issues that remain unresolved. III. THE ISSUE OF STANDING In response to Fruehauf's motion for relief from the stay, the trustee answered and counterclaimed that Fruehauf was the partner, joint venturer or in the alternative the alter ego of the debtor. This position is based on the undisputed fact that at various times Fruehauf assumed management responsibilities and incurred debt for the debtor pursuant to the terms of the consolidated loan agreements. In its motion for summary judgment Fruehauf asserts that neither the trustee nor debtor has "standing" to assert the partnership, joint venture or alter-ego theory. The law of standing, the Supreme Court says, is a "complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations," U.S. ex rel. Chapman v. Federal Power Comm., 345 U.S. 153, 156, 73 S.Ct. 609, 612, 97 L.Ed. 918 (1953). The *187 federal courts are to look into the nexus between the status asserted by the litigant and the claim he presents to assure that he is a proper and appropriate party to invoke federal judicial power, Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968). Fruehauf contends that the trustee does not have standing to recover alleged debts owing to the creditors of the bankrupt from the partner, joint venture or alter ego of the bankrupt. I hold the trustee does not have the right to collect debts from alleged non-bankrupt partner,[5] joint venturer or alter ego. Such cause of action belongs solely to each partnership creditor, see for example Krivo Industrial Sup. Co. v. National Distill., 483 F.2d 1098 (5th Circuit, 1973). The trustee however does have standing to assert the partnership, joint venture or alter ego status for the purpose of subordinating one creditor's claim to the claims of other creditors under the doctrine of equitable subordination. I will therefore grant Fruehauf's motion for summary judgment on the trustee's lack of standing issue except to the extent the trustee relies on the partnership, joint venture or alter ego theory as the basis for subordinating Fruehauf's claim to those of other creditors. IV. I.C.C. PERMIT ISSUE The trustee alleges Fruehauf took control and possession of Mercer and its I.C.C. permits without the approval of the Commission and such fact renders invalid any pledge of the permits. Fruehauf has moved for a summary judgment on this issue. It has received minimal attention in the briefs and arguments of counsel and no authorities have been cited in support or contrary to Fruehauf's motion. However in view of the representations of counsel during the hearing on this motion held on August 5, 1981, that this issue will receive further attention, I will at this point deny Fruehauf's motion for summary judgment on the void pledge issue. V. THE WAIVER AND ESTOPPEL ISSUES Fruehauf in its motion for summary judgment asserts that the debtor corporations and guarantors waived any defenses or counterclaims to Fruehauf's claims pursuant to the agreement of September 16, 1977 which states in pertinent part: "All of the undersigned debtor and guarantor parties hereto: Recognize, admit and affirm all of the foregoing indebtedness owing by them, individually, jointly or severally to Fruehauf Corporation, and acknowledge that all of the same have been matured and are now owing, past due, and not subject to credit offset or counter-claims of any kind." The trustee and Mercer have countered that such agreement was conditioned on certain subsequent events which never materialized. At the summary judgment hearing on August 5, 1981, Fruehauf urged that the 1977 agreement equitably estopped Mercer from asserting defenses and claims arising out of the loan agreements. Factual issues exist which preclude my granting a summary judgment on the waiver and estoppel theories. Waiver is operative only where the person charged has actual or constructive knowledge of all the material facts concerning the right or privilege involved. No one can be said to have waived that which he does not know, Bering Mfg. Co. v. Carter and Bro., 255 S.W. 243 (Tex.Civ.App.—Beaumont, 1923) affirmed 272 S.W. 1105; see also 60 Tex. Jur.2d Waiver § 6, p. 187. A factual issue exists as to whether the corporate debtors relinquished a known right for a valuable consideration. As to Fruehauf's estoppel claim, Fruehauf must show that it acted upon Mercer's representations without knowledge of the falsity of such representations. *188 To successfully urge estoppel, Fruehauf must show not only ignorance of the true circumstances of a transaction, but also that there was no convenient or available means of acquiring knowledge of the truth with reference thereto, Holland v. Blanchard, 262 S.W. 97 (Tex.Civ.App.—Dallas, 1924) err. dismd. A fact issue exists as to whether Fruehauf had knowledge of the existence of offsets, credits and counterclaims when Mercer signed the September 16, 1977 agreement. Furthermore the party claiming it was misled by the representations must show that it changed position in a manner that it will be injured if estoppel is not invoked, Stanolind Oil & Gas Co. v. Midas Oil Co., 173 S.W.2d 342 (Tex.Civ.App. —Galveston, 1943) revd. on other grounds 179 S.W.2d 243. VI. THE "ANTITRUST" VIOLATION Fruehauf seeks a summary judgment on the anti-trust issue contending that no summary judgment evidence exists to support the anti-trust action alleged by the trustee and Mercer. While the anti-trust issue has received minimal attention in the pleadings and briefs of the parties, there is before the court excerpts from depositions, interrogatories and agreements which if viewed most favorably to the trustee and Mercer provide some faint evidence of an anti-trust violation. It is expected that the trustee and Mercer will more fully develop the alleged violations before the trial of this matter. At this juncture Fruehauf's motion for summary judgment is denied. VII. CONSOLIDATION Fruehauf seeks summary judgment denying consolidation of the bankruptcy estates of T.E. Mercer Trucking Company and G.E.M. Storage and Terminal in the event it is found that the corporate debtors are not jointly and severally liable for Fruehauf's total claims. The bankruptcy court has jurisdiction to consolidate proceedings and to merge the assets and the liabilities of the debtors. This jurisdiction is based on considerations of equity, one of the touchstones of the bankruptcy court's jurisdiction, Bank of Marin v. England, 385 U.S. 99, 87 S.Ct. 274, 17 L.Ed.2d 197 (1966). However the court must be mindful that consolidation in bankruptcy is no mere instrument of procedural convenience but a measure vitally affecting substantive rights, In the Matter of Flora Mir Candy Corp., 432 F.2d 1060, 1062 (2nd Cir. 1970). In the case sub judice Fruehauf asserts that consolidation will injure its substantive rights. Of course Fruehauf's rights have been challenged and further fact finding must occur before the extent and priority of those rights may be determined. Controverted issues of fact are thus implicit in the consolidation issue, and Fruehauf's motion for summary judgment on consolidation is denied pending resolution of the enforceability and priority position of its claims. VIII. STATUTE OF LIMITATIONS Fruehauf asserts that the offsets, credits and defenses claimed by the trustee and Mercer are barred by limitations. However it is settled by many decisions that the statute of limitations is not applicable to matters set up strictly by way of defense, Rutherford v. Carr, 99 Tex. 101, 87 S.W. 815 (1905); Morriss-Buick Co. v. Davis, 127 Tex. 41, 91 S.W.2d 313 (Sec. A, 1936), 37 Tex.Jur.2d Limitations of Actions § 18. Fruehauf's motion for summary judgment on the statute of limitations issue is denied, however I reserve opinion as to whether the trustee's and Mercer's claims against Fruehauf are barred by limitations if asserted affirmatively as a ground for recovery rather than as a defense to the alleged indebtedness. IX. THE POST-PETITION RECEIVABLE ISSUE The trustee and Mercer seek to attack Fruehauf's secured status by questioning *189 whether post-petition receivables of Mercer may be substituted as Fruehauf's collateral for pre-petition receivables consumed by the trustee's post-petition operations. Again overriding this issue is the factual determination to be made as to the priority of Mercer's indebtedness to Fruehauf. Assuming that such indebtedness exists, and the security interests are not subordinated on other grounds, I will follow the rule of In the Matter of Sequential Information Systems, Inc., 4 C.C.H. Sec. Trans. Guide ¶ 51479 (S.D.N.Y., 1970). In that decision the court held that a creditor secured by inventory has no right, title or interest in and to and no claim upon inventory purchased by the debtor-in-possession subsequent to the filing of the petition for arrangement herein and any accounts receivable created from the sale thereof, except insofar as such inventory is paid for with funds of the debtor which is subject to the creditor's pre-petition lien. To the extent that Fruehauf traces the proceeds of encumbered pre-petition assets into post-petition property or accounts acquired by the trustee or debtor-in-possession, I hold it has an enforceable lien on such post-petition assets. Plaintiff's summary judgment motion is denied in view of the lack of a factual record before the court to determine which pre-petition and post-petition property is subject to the lien. X. EQUITABLE SUBORDINATION It is clear that a factual issue exists as to whether Fruehauf may be equitably subordinated to other creditors. Before the court may exercise its equitable power three conditions must be met: (1) the claimant must have engaged in some type of inequitable conduct; (2) the misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant; and (3) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act, see In re Multiponics, 622 F.2d 709 (5th Cir. 1980); In the Matter of Mobile Steel Co., 563 F.2d 692, 700 (5th Cir. 1977). The claims however may be subordinated only to the extent necessary to offset the unfair advantage or the harm which the creditors suffered on account of the inequitable conduct, Mobil at 701. Fruehauf argues it should not be responsible for any creditor harm from its actions because creditors could have ascertained that Fruehauf had liens on substantially all of the debtor's property and any extensions of credit were imprudent. The doctrine of equitable subordination deals with inequitable conduct resulting in either unfair advantage or creditor harm and is not dependent on creditor reliance or prudence. Actual fraud need not be established, Multiponics at 720. As discussed earlier in the opinion, I will give significant attention to alleged conduct of Fruehauf in seeking to circumvent the review by the Interstate Commerce Commission of the consolidated loan agreements. If such intent to circumvent I.C.C. control is found and if I find that the conduct resulted in fewer assets available for distribution to the unsecured creditors, Fruehauf's claim will be subordinated to the extent the unsecured creditors were injured. The court will also look at the "creditor control" exercised by Fruehauf pursuant to the various consolidated loan agreements. These remarkable loan contracts gave Fruehauf joint control of all bank accounts of the Corporate Debtors requiring co-signatures for substantial checks, gave Fruehauf the right to place its designee on the Board of Directors of the Debtors; required all corporate by-laws, stock books and certificates to be delivered to Fruehauf's counsel; gave Fruehauf the right to have one of its employees participate in the day-to-day operations of the Debtor's premises with complete veto powers on any items or matters whatsoever; gave Fruehauf the right to require the liquidation of all assets of the Debtors and the various other ventures; gave Fruehauf the right to set salaries of officers and directors; required the Corporate Debtors to pledge all their stock, and provided in the event of a dispute between the Mercer management and the Fruehauf *190 monitoring agent that an appeal would lie to the Fruehauf management for final determination. The extensive creditor control evidenced by the loan agreement suggests that the debtor corporations were mere instrumentalities or the alter ego of Fruehauf. If Fruehauf's actual control was as dominant as the consolidated loan agreements indicate, such fact pattern may satisfy the inequitable conduct element of the trustee's subordination claim, see In re American Lumber Co., 5 B.R. 470 (D.Minn., 1980). If I find Fruehauf gained an unfair advantage or that creditors suffered harm as a result of its alleged control, the bankruptcy court's equitable powers may be invoked to subordinate Fruehauf's claims to the extent necessary to remedy the inequitable conduct. The trustee is allowed leave to amend its pleading so as to make a more definitive statement of Fruehauf's inequitable conduct and the nature and extent of any alleged damages. The determination necessary to resolve the subordination issue will require further evidentiary hearings. Consequently Fruehauf's motion for summary judgment on equitable subordination issue is denied. The foregoing constitutes my conclusions of law pursuant to F.R.C.P. 52 and my initial report as special master pursuant to F.R.C.P. 53(e). NOTES [1] The intervenors are the sole stockholders of the debtor corporations and are guarantors of much of the corporate debt. [2] At the summary judgment hearing on August 5, 1981 the debtor, trustee and intervenors announced they would no longer urge a usury claim based on the allegation the debt to Fruehauf is void under § 20a. This concession anticipated my ruling on this issue. A void debt may not be the subject of a usury claim. O'Quin v. Beanland, 540 S.W.2d 526 (Tex.Civ. App.—San Antonio, 1976) no writ. hist. [3] The parties extensively briefed the issue of what evidences of indebtedness fall within the purview of § 20a. All recognize that Ex parte 275 [Association of American Railroad v. U.S.], 603 F.2d 953 (D.C.Cir.1979) is the leading authority. It sets forth two salient factors in determining whether a particular transaction is a security under § 20a. The first factor looks to general principals of federal securities laws to determine whether the debt is in the nature of a security. The Fifth Circuit follows the investment/commercial dichotomy test which is premised on the view that Congress' concern in enacting the securities laws was to regulate practices associated with investment transactions and that the securities laws were not designed to regulate commercial transactions. McClure v. National Bank of Lubbock, 497 F.2d 490 (5th Cir. 1974), focused upon two factors in determining whether "notes" are securities: (1) were the notes offered to some class of investors or were they acquired by the creditor for speculation or investment, (2) alternatively did the debtor obtain investment assets, directly or indirectly, in exchange for its notes. The investment/commercial dichotomy provides an analysis helpful in explaining the holdings in numerous I.C.C. cases cited by the parties, see Lehigh Valley Railroad Company, 1 Fed. Carrier Cases 328 (1939); Mutrie Motor Transportation, Inc., 116 M.C.C. 99 (1972) and Hays Freight Line, Inc., 39 M.C.C. 576 (1944). Ex parte 275 further recognized that § 20a was intended to be limited to "issues" of securities, and thus imposed an element that the security be in transferable form. A transferable evidence of indebtedness is one that has negotiable or quasi-negotiable characteristics; see REA Express, Inc. v. Alabama Great Southern, 427 F.Supp. 1157 (S.D.N.Y., 1976), and Transcontinental Bus System, Inc., 80 M.C.C. 54 (1959). The second element is met if the debt instrument is in a form that the issuer and initial holder of the instrument could reasonably anticipate that the instrument would be transferred to a member of the class that § 20a is designed to protect. However I find it unnecessary to apply this analysis to the consolidated loan agreement as I conclude that § 20a does not operate to deprive Fruehauf of its secured creditor status even in the event the agreement is a security. [4] I am addressing the in personam liability of each debtor corporation. The cross-collateralization agreements make each corporation's assets liable for the other's individual indebtedness. [5] Such is the implication of 11 U.S.C. § 23(i) [Bankruptcy Act § 5(i)] which provides that where only one partner is adjudged bankrupt, the partnership property shall not be administered unless by consent.

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of -- ) ) Lakeshore Toltest JV, LLC ) ASBCA Nos. 58954, 59069 ) 59070,59071 ) Under Contract No. W5J9JE-l l-C-0130 ) APPEARANCE FOR THE APPELLANT: Anthony J. Calamunci, Esq. Special Counsel for Chapter 7 Trustee, Alfred T. Giuliano FisherBroyles, LLP Toledo, OH APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Dawn-Carole Harris, Esq. Engineer Trial Attorney U.S. Army Engineer District, Fort Worth ORDER OF DISMISSAL The parties have filed a joint motion to dismiss with prejudice, representing that the Chapter 7 Trustee and the government have reached a settlement in the related bankruptcy litigation, which settlement has been approved by the bankruptcy court and resolves the claims at issue in these appeals. Accordingly, these appeals are dismissed with prejudice. Dated: 25 August 2016 Administrative Judge Armed Services Board of Contract Appeals  I certify that the foregoing is a true copy of the Order of Dismissal of the Armed Services Board of Contract Appeals in ASBCA Nos. 58954, 59069, 59070, 59071, Appeals ofLakeshore Toltest JV, LLC, rendered in conformance with the Board's Charter. Dated: JEFFREY D. GARDIN Recorder, Armed Services Board of Contract Appeals 2 

364 F.3d 622 UNITED STATES of America, Plaintiff-Appellee,v.Osvaldo LOPEZ-CORONADO, Defendant-Appellant. No. 03-40666. United States Court of Appeals, Fifth Circuit. March 30, 2004. Mitchel Neurock (argued), Laredo, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee. Roland E. Dahlin, II, Fed. Pub. Def., Molly E. Odom (argued), Houston, TX, for Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas. Before REAVLEY, DAVIS and DeMOSS, Circuit Judges. REAVLEY, Circuit Judge: 1 Defendant Osvaldo Lopez-Coronado pleaded guilty to illegal re-entry in violation of 8 U.S.C. § 1326(a) but appeals the four level increase in his offense level at sentencing that counted his juvenile adjudications as felony convictions under the 2002 guidelines. We affirm. The defendant was fifteen years old in 1997 when the court found beyond a reasonable doubt that he committed the offenses of theft, unauthorized use of a vehicle, and possession of marijuana. He was adjudged a delinquent and sentenced to one year probation. The following year, he was again adjudged a delinquent because he was guilty of unauthorized use of a vehicle and evading arrest. The court made its findings beyond a reasonable doubt and again sentenced the defendant to one year probation. Under the sentencing guidelines, these offenses are considered felony offenses as they were punishable for a term of imprisonment exceeding one year. U.S.S.G. § 4A1.2(o). In 2002, the defendant was deported and attempted to reenter the United States. 2 The guideline reads: "if the defendant previously was deported, or unlawfully remained in the United States, ** after ** a conviction for any other felony, increase [his base offense] by 4 levels." U.S.S.G. § 2L1.2(b)(1)(D). The sentencing commission did not limit this conviction to an adult conviction as it has elsewhere. See, e.g., U.S.S.G. § 2K1.3, cmt. n. 2 (determining the base offense level for unlawful receipt, possession or transportation of explosive materials using only adult convictions); U.S.S.G. § 2K2.1, cmt. n. 5 (determining the base offense level for unlawful receipt, possession or transportation of firearms or ammunition using only adult convictions). 3 Juvenile adjudications count as convictions for criminal history purposes. See U.S.S.G. § 4A1.2(d)(2). This court has held a deferred adjudication under state law to be a conviction under § 2L1.2 where there was a finding beyond a reasonable doubt in a proceeding with adequate due process protections. United States v. Valdez-Valdez, 143 F.3d 196, 201 (5th Cir.1998). This defendant received those procedures and protections. 4 After the defendant was sentenced, the guideline was amended in this respect. After November 1, 2003, the commentary to Application Note 1(A)(iv) of § 2L1.2 provides: "Subsection (b)(1) does not apply to a conviction for an offense committed before the defendant was eighteen years of age unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted." The amendment was not included in the list of amendments to be applied retroactively. U.S.S.G. § 1B1.10(a), (c) (2003). Only clarifying amendments to the guidelines are applied retroactively. See United States v. Davidson, 283 F.3d 681, 684-85 (5th Cir.2002). Because we read the 2002 guidelines as we do, the 2003 amendment was a substantive change and not a clarification. 5 AFFIRMED.

OFFICE OFTHEATTORNEY GENERALOFTEXAS AUSTIN Honorable 0. C. F'lrher Dietrlat Attorney San Angelo, Texas D6er Sir: Yoor reoent co nlon of this has bean rc- er to me puts the to maximum r8*6 in with a poptnla- otticdo salary or ofitem be oonsibersd in arriving at the $ZGOO ouW.mtm, or the $3006 sari- tatus, or sithur? The t+m’ity of-~ flofols ia thin ooam are aom- “iI, with (19 penootrd on dlire bar a44itfoaal nutapal4 ohem a8 ex- rrftlcloealario#.* Donorable 0. C. Maher, page 2 ArtIclea 3883 en4 3891 of Vernon's Civil Annotate4 Statutes read in part 88 r0iiow0: rhrt. 3883. 3881 to 3883. Xaxlnum Pees --itXOSpt 88 OthSXWi88 DrOTi4.4 iXl this hat,the annual fees that map be retained by prealnat, county en4 dietriot otr1oer8 men- tioned in thlr Article ahall be as rollowez *1. In countiie containing tw4nty fire (25,000) thoullandor less inhabitsnt8: County Judge, Dlstriot or Criminal M8triat Attorney, gherlfr, Oounty Clerk, County Attorney, Die- triet Clerk, Tax Collector, Tex Aseeeeor, or the AS8088Or @Uld~OllSOtOr Of t'ttX88, hellty- four Hundred ($2&W.00) Dollare eaah; Justice of the Peaoe 6n4 Conlrtable,l%elve Dun4re4 (fl.ZOO.00)Dollars eaoh. ". . . . . "Art. 3e91. Disposition of fess %aah offleer named in tbie Chapter shall first out of tha current fees or hf8 offioe pay or be paid the amount al- lowad him under the prorluiona of Artlole 3883; together with tha aalarle8 or h18 assistant8 an4 daput188, and authorlaed expansen un48f Art1018 3899. and the amount neceaoary to oover uoetn 0r premium on ~wtever earsty bond may be.require4 by Xi the current fear of such oP?loe colieoted In any year be more then the amount n&edab to pay the emounte above epeoitle4, 8sme shall be deemed excee)LIree8, an4 shall be disposed of in the manor hareinarter provided. -In oountiee oontainlng twenty-five thaus- 6na (25,000) or 18J38 fnhab1tant8, District an4 County OifiOer8 nemd hereln shall retain one- third of crushexcaas fe6s until eiuahOne-third, together with the amounts rpeclfied in Artlals 3883, amowes to Three Thousand Dollar8 (8.3ooo).Preainat of~oera shall retain one-third until suoh one-third, to ether tith the audnt epsoitie6 In Artiala 3654 3, smount8 to Foartsan Hundred Dollars ($1.&W).* Eionorable0. C. Ploher, psee 3 Sterling County baa 8 populetion of 1,431 lnhabltaats, accordi~ to the lsrt tedersl aenaua. Artiole 3895, veMOll'8 Civil Annota‘ted Stfltut8etprovides that: *fat. 3895. R-otflclo 8errloe8 "The Comnie8ionsr8* Court 18 hereby debarred rrocqallowlw companaatlon for 8x-orriolo saniaes to county o??lclale when the compensation an4 SXa88Cifee8 whloh they are allowed to rrtaln shall reeoh the smxlmun provl4ed ?or in t&la chapter. In aa~as where the com,pensetlon and exaees feao whloh the otrlaers are ellowe4 to retain shall not reeoh the mOXiaUEk JWQYid8d ?Or in thim OheptOr, the Comls810nsrs1 Court shall allow oamperma- tloa ?or ax of?lcio 8ervlces when, In their judyant, euah ooapenoatloa Ir neoeeoary, provided, suoh oompeneation for ax ofrid eervieea allowed 8hall not lnoreaea the ooapaneation of the of?tialalbeyond the maxlmuiu of o~pene8tloa ati axe888 fee8 allowed to be retaloe b,yhim under this ohapter. Frovl4ed, however, the ax o?~l~lo herein authorized 8hall be allowed only a?- -.~ tar an opportunity ?or a public hearing and only upon the af?lmatlve vote of at least three msabers of the Coumi8eionera* CourLn Article 3897, VCIMOQ~O Civil Annotated Statuter, ma48 In pert aa fO11OW8: "Art. 3897. Sworn stateuent *Each district, oounty and precinst officer. at ths 010~6 of eaoh tlsoal ear (DeasaPber3let) shall mke to the di8r, rlct court ot the oounty ln which he resides a mwra atatuaent in triplicate (on torts6de- stgned en4 appmved by the Stste Auditor) a copy'of whioh ststemmt elm11 be torwarded to the State Aualtor by the olsrk o? then dfetrtit aourt of 8ald oouaty wIthIn thirty (30) d.ays aftrr the e-8 ha8 been ills4 la hi8 offloe, an4 on4 sapy.k, be ffled with the county auditor, if any; otherwise, Honorebls 0. C. Fisher, page 4 said oopy shall be filed with tha Com- mIssIonare* Court. Said report ahall show tbs asotmt or all taes. oommlsslona and c.zapensatIonswhatever earn& by said o‘i- ricer durlnc the flsoal Year; and asooad- 1-1,shall abor the amount of fees, oom- mlsaions and oompenaatlona 00m0t6a by him during the fiscal year; thirdly, (laid report shall contain aa ltmlrcrd atatemant of all fees, co~3alseIwa and compm6atIons sarnsd during the ilacal par whloh were not oollscted, together wltb the name or the party owing eald fees, commiralona and ooapea6atlon5 . . .* Ths last two paragraphs of Artlcla 3891, R~Iaed Civil Eltatutsa,read aa followrr *The comneasatlone, limitationa aad maxImuM herein fix0a In thla hot root orfloers sheillInclude and apply to ell officers mentions& herein In aaoh and eray county of t&Is State, and It 18 harrby drclarul to ba the latcatioa of the Leglalatura that the pro~lal.oaaoi th15 Act shall apply to raoh or eaia offlaers, aad any 8peoIal or general .$: law laoonalstent with the prorIriona hereof Is hereby expressly repaalrd In ao far as tbo sams may be Iaoonalatcnt with t+Is Aat. WLS ooapansatlon, llmitatioas and marlmuw herein fixed shall aUo apply to all raes and compeaestlrm whetltoeta aol- laoted by said offlt?em in their offlola capaolty, whsthar aoocuatabls aa fess of offlcr uadar the present law, an8 any lea, pmarsl or spacla~, to the 6ontwry It3 hereby erpmealy rspselad, The otiy kin4 and aharaeter of onmpexwiatlon axef&pt fresa tts pro~irilonsof #la Aot ahall be rcrwarde reoalrra by SherIf'fii for eppr6h6aaIoa of crIminala or fugltltas fram jae,tleeand for the recovery or sDol~a'~property,and ~~nonepareosl.rrdby County Judgeo and Justioes of the pttaceror ge~f=mriry asrrlago o~remmles, whlhtoh am shall riot not be aaeoolntablafor and not r6qalrM~ta be reported 8~ faearof otiit~.~ Honorable0. C. PIshsr,page 5 ,ArtIcle3895, 8upra, apeaItlaa~l~prohibit@ the eo~~~l~eloncra~ court froa 11lowlng'eoapeascrtlon for ax offloio senlo68 to uuuatyarfIo$418when the aompeaaatlon and 4x88~8faer whloh thef tie allawrb to mteia 8hnll resah the maximum prOtid6d lbr by Artlolrs3883 and 3891,8upra. 2%4 oaly car8 where the aomttioner8* abnrt 18 8llorrd to proride oom- pen5atIoaror mx oiiYtI0 84rvi448 i8 when the ooa- pUl88tiOn and 4XC448 i6e5 rrhiah the OfiiO8~ 8M allord to rataia ahall:not r4iolt tha amximun ro- ridad Zur by Art10183883 an4 Art1018 3891. TL phre84 -'all foes and oompeU8atIon’rhat8oeter 0017 14ateabr aald ufrlorrsIn their QrfiOialoapWty,* obrao4s everykind of oomp4nsatIoa4llowedby $8~ to SIX& OffiCi418, LUIdU&86 aXO8ptd by 8OXI4 PTO- ~18iih or the statute,the ua4ptloa8 are so derla- ite that by implloatioaall tees and oompea8etioas aut meatlonrdIn the exo4ptIoaear8 uoladed there- from, aaa therebylaolobedwltkla the requlrcmmts of the maxlmnn 144 rtatotae. & tibw of the forrgeiag rt8tUte8, pi 8ra respeotfnlly a&lee& thet It 18 tha opinion OS thir aapartmentthat comp4a8atIon allowed Sor .u OffiCiQ 84lTiC44 t0 tha OOUllt~ OfriOhi8 Of at8rliW Couatymust br IaaladedIn lrrlrisgat the M OUIlQ8ll8atiOn SIbWed SUCh OrfiOi~8 OadUr mia.98 ; 3~83 =a 3891. For explaastloaoi the ior4aofng w4 eno~ose 8 oopy a? Oplnloh 043B.5. Trustiag that thr r0r8gag rally aaowera yodr laqulry,w4 ramala, Yours vary trul# AT%lRi4SYQESERAXI OF %%XAS 

Order Michigan Supreme Court Lansing, Michigan April 1, 2013 Robert P. Young, Jr., Chief Justice 146178 Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano, Plaintiff-Appellee, Justices v SC: 146178 COA: 303025 Oakland CC: 2010-233589-FC ELLERY TERRENCE BENNETT, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the September 25, 2012 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. April 1, 2013 _________________________________________ p0325 Clerk 

73 N.W.2d 50 (1955) Clarence ELSE, Guardian of Sim Cundiff, an Aged Person, and Clarence Else, Guardian of Grace Cundiff, an Aged Person, Appellees, v. FREMONT METHODIST CHURCH of Fremont, Iowa, Appellant. No. 48782. Supreme Court of Iowa. November 15, 1955. *51 Ned P. Gilbert and Charles H. Scholz, Oskaloosa, for appellant. Tunis H. Klein, Pella, and Bray, Carson & McCoy, Oskaloosa, for appellees. LARSON, Justice. This appeal involves an action in equity, brought by Clarence Else, guardian of Sim Cundiff and Grace Cundiff, against the defendant Fremont Methodist Church, wherein the guardian sought to have his wards' deed conveying a remainder interest in the wards' 134 acre farm to the defendant church, subject to a retained life estate in said wards, cancelled and set aside, and title to the property quieted in the wards as against the defendant, upon the grounds that (1) said wards were without sufficient mental capacity to execute said deed and (2) said deed was obtained from said wards by the exercise of undue influence by the pastor and the chairman of the board of trustees of said defendant church. The trial court found that the grantors lacked the requisite mental capacity and that their deed was obtained by the exercise of undue influence, and entered a decree for the plaintiffs. The defendant appealed. The questions involved on this appeal are (1) whether the appellees satisfied the burden of establishing the claimed lack of mental capacity, (2) whether a confidential relationship existed of such nature as to cast upon the appellant any burden of proof with regard to the claim of undue influence, and if such burden was thereby cast upon the appellant, whether the appellant has met and satisfied that burden, and (3) whether any error was committed in excluding testimony of the grantors' attorney on the grounds of privilege. Sim Cundiff and his wife Grace, the grantors of the deed in controversy, were 73 and 76 years of age, respectively, at the time of the execution of the deed. They had been married for 40 years, and no children were born as the issue of their marriage. Their only close relatives were Sim's one brother, and Grace's one sister. Sim had been a farmer all his life and he and Grace lived on and farmed a 120 acre farm located approximately two miles northwest of Fremont, Iowa. They also owned the real estate in controversy, said farm being triangular in shape with public highways constituting the north and east boundaries of the farm and a railroad right of way the southwest boundary thereof. In addition, they owned some livestock, farm machinery, bank accounts and government *52 bonds, having a total value of approximately $30,000. Grace had been a member of defendant church many years, beginning with the time she was in high school and continuing until March 31, 1953, approximately six months after the deed in controversy was executed. She punctually attended church and was by her own statement a devout member. Sim Cundiff also attended this church, but did not become affiliated with it as a member until January 6, 1952. Dr. Ernest A. Mathews, age 70, a Methodist Church minister since 1907, at the invitation of defendant church, came out of retirement and accepted a call as its supply pastor. He arrived in Fremont in June, 1951, and continued as such pastor until the summer of 1953. Upon arrival in Fremont, Dr. Mathews, seeking to become acquainted with his congregation, called at the Cundiff home in July, 1951, and became acquainted with Sim and Grace Cundiff. Thereafter until Sim sustained a cerebral hemorrhage on July 12, 1952, Dr. Mathews made further visits at the Cundiff home about once a month. A friendly relationship developed between them. On his second or third visit to the Cundiff home, in August or September, 1951, he had a conversation with Sim in the farmyard during which Sim said, without solicitation from Dr. Mathews: "I want to give $20,000 to the building of a new church and it must be on the highway." Dr. Mathews commented that the offer was a very wonderful thought for him to keep in mind, and thanked him. In December, 1951, between Christmas and New Year's Day, Sim went to the bank with which he did business in Fremont and there delivered to his banker a check for $800 with the statement it was intended as a gift to the Fremont Methodist Church building fund, which check was subsequently turned over to the church treasurer. On Sunday, January 6, 1952, a ceremony for the reception of new members was conducted as part of the regular church service, at which time Sim received holy baptism and was received into the membership of the church. On this occasion Dr. Mathews made a public statement from the pulpit disclosing that a gift had been made to the building fund of the church by Mr. and Mrs. Cundiff. Without disclosing the exact amount, he stated that the gift was substantial. Soon after this Dr. Mathews and the church treasurer called at the Cundiff home to express the church's appreciation of the gift. On this occasion Sim stated the gift was "just a nest egg and he had another quarter." Dr. Mathews' public announcement was contrary to the Cundiff's desire to avoid publicity, and later on when the Cundiffs made a further gift of $400 to their church, they arranged that their tenant, Louis Meyers, mail his check for that amount to the church without any explanation that the Cundiffs were the actual donors, and for a time the church believed it was a gift from the tenant. In the spring of 1952, following these gifts to the building fund, the church's trustees determined to canvass the church membership to ascertain whether there was any sentiment for the building of a new church building. In connection with this canvass, Dr. Mathews and W. O. McCurdy, chairman of the board of trustees of the church, stopped at the Cundiff home to interview Sim. Concerning this visit Grace testified: "S. E. was so concerned, he told them on this committee, `Let's build a church,'" but they informed him that the money wasn't available and the general congregation thought it wasn't feasible. Mrs. Cundiff also testified on one occasion during this period Sim said to her: "Grace, whenever we sell anything, if we have a little more than we need, we will put it on the building fund," and that there was similar talk for some months prior to the execution of the deed in controversy. Later, on July 12, 1952, Sim suffered a cerebral hemorrhage which caused a partial paralysis of portions of his body and caused him to be confined to his bed for a period not definitely fixed by the Record. Sim's physical condition improved as time went on and he was able to sit in a wheel chair, and later on was able to get on his hands and knees and crawl, and still later on was able to walk about by leaning and *53 hanging on wires and other objects and without personal assistance from anyone. On September 28, 1952, four days after the deed was executed, Sim did walk from the barnyard to the house. Just before the deed was executed, he was able to be alone in the back yard of his home, exercising under the clothes line. Although his cerebral hemorrhage had affected his ability to talk plainly, he recognized his many visitors, was able to and did raise his hand in greeting, could answer questions by yes and no answers, and by signs and gestures was able to carry on conversations with his visitors and generally could make himself understood to them. His visitors included his neighbors, his farm tenants and their wives, several old family friends, his guardian, Clarence Else, and Mrs. Else, and Dr. Mathews, Mrs. Mathews, W. O. McCurdy, and W. O. McCurdy's daughter-in-law, Mildred McCurdy, most all of whom testified in this trial. Mildred McCurdy, who moved to the Fremont community in 1949 upon her marriage to Leroy McCurdy, had never seen or heard of the Cundiffs until Sim's baptism on January 6, 1952, on which occasion Sim and Grace were identified as Mr. and Mrs. Cundiff. In March, 1952, she became personally acquainted with them. At Dr. Mathews' invitation she accompanied him and Mrs. Mathews to the Cundiff home for the purpose of playing her harp and singing religious hymns to Sim, she being an accomplished musician. Following this visit, Mildred's calls at the Cundiff home became more frequent and a closer friendship between Grace and Mildred developed after Sim's stroke, during the period from July 12 to September 24, 1952. Grace often called Mildred on the telephone urging her to come to their home, and she came to rely on Mildred to run errands for her, to bring her groceries from Fremont, and to do other similar favors for her. During this same period Grace began to have difficulties with Sim's brother, Sam Cundiff. Sam's frequent visits to the Cundiff home disturbed and upset Sim, and Grace began to develop a feeling that Sam's motives were improper and he was endeavoring to become Sim's guardian. Sam's actions so dissatisfied her that on the evening of September 21, 1952, she sent her handyman, Archie Fuller, to Fremont to seek out Mildred McCurdy for the purpose of soliciting her aid. Mildred informed Fuller that she was a short-time resident of Iowa, she was not familiar with the Iowa laws, and she therefore did not feel competent to advise or assist Grace. Later on that same evening she received a telephone call from Fuller from his home in Ottumwa. In this call he informed Mildred that he had stopped at the sheriff's office in Ottumwa to discuss the situation and had been advised by the sheriff it was a matter for the Mahaska County authorities, and Grace should seek the aid and assistance of the Mahaska County Attorney, Garold Heslinga. He also stated that the sheriff had suggested it would be well to check into Grace's mental condition. On the following morning, Monday, September 22nd, Mildred drove to the Cundiff home and informed Grace of Mr. Fuller's message and the procedure suggested by him. Grace then decided she would go to Oskaloosa where she would see and consult Dr. Voigt, who was the family physician and who then had Sim under his care, relative to her own mental condition and would seek the aid and assistance of Heslinga. She requested that Mildred take her there for those purposes. They departed for Oskaloosa about 10 o'clock and arrived at Oskaloosa around 11 o'clock that same morning, with W. O. McCurdy, Mildred's father-in-law, furnishing the transportation in his car. On the way to Oskaloosa Grace expressed a desire to avoid climbing any steps to the second story office of the county attorney and suggested she would like to have W. O. McCurdy contact the county attorney and make an appointment to meet her at Dr. Voigt's office. Upon arrival at Dr. Voigt's office Mildred, Grace, and W. O. McCurdy, ascertained that Dr. Voigt would be unable to see them until 12:30 P.M. Thereupon Mildred and Grace left the office and went to a restaurant and ate lunch. Mr. McCurdy proceeded to Heslinga's office where he made arrangements to have Heslinga meet *54 Mrs. Cundiff at Dr. Voigt's office at the appointed hour of 12:30 P.M. At that time Heslinga came to the doctor's office and found Mildred, W. O., and Grace in the waiting room. He visited with them briefly, at which time Grace informed him of her difficulties with Sam and her desire for Heslinga's assistance. In their discussion Heslinga alluded to the fact that Sam Cundiff was Sim's sole heir-at-law and inquired whether any arrangements had been made concerning the devolution of their property in the event of their deaths. Grace informed Heslinga that she and Sim owned all of their property in joint tenancy and that provisions had been made whereby the survivor of Grace and Sim would acquire all of the property. Heslinga then inquired as to whether provisions had been made as to who should succeed to the property upon the death of both of them. Upon being informed by Grace that no such provision had been made, Heslinga suggested that immediate arrangements should be made by Grace and Sim to plan their estates and in connection therewith to execute suitable wills. Grace agreed to this procedure and thereupon she, Heslinga, W. O., and Mildred proceeded into the doctor's conference room, where Grace's difficulties with Sam Cundiff were again explained and the doctor was requested to express an opinion as to Grace's mental condition, and also as to her and Sim's testamentary capacity. Dr. Voigt interrogated Grace at length concerning the members of her family, her relatives and the extent of her property, and in the presence of all four then stated he was of the opinion Grace was of sound mind, she had testamentary capacity, and knew what she was doing and the consequences of her acts. Later he signed and delivered to Heslinga a similar statement of his opinion concerning Grace's testamentary capacity. He also expressed an opinion that Sim Cundiff was then of sound mind and had testamentary capacity. The four then retired from Dr. Voigt's office and proceeded to the parked McCurdy automobile. Mildred McCurdy departed on a shopping errand, leaving Heslinga, Grace Cundiff and W. O. McCurdy seated in the car. Heslinga and Grace conversed at length concerning the provisions of Grace and Sim's proposed wills, and Heslinga made notes. It appears that he then informed Grace he would prepare the requested wills, and made an appointment to meet Grace and Sim at the Cundiff home at 10 o'clock the following morning, September 23, 1952, to execute their wills. On the way home Grace told Mildred they were going to will 50% of their property to the Fremont Methodist Church. Heslinga prepared wills for Sim and Grace, and on the following morning, September 23, 1952, he drove to Fremont in his car, where he contacted W. O. McCurdy and W. O.'s son, James McCurdy, and made arrangements for them to accompany him to the Cundiff home for the purpose of witnessing the execution of Grace and Sim Cundiff's wills. This same morning Grace Cundiff told Mrs. Clarence Else, wife of the plaintiff guardian, she was making plans to execute her will and she desired to appoint Mrs. Else's husband Clarence as administrator of her estate. By the time Heslinga and W. O. and James McCurdy reached the Cundiff home that morning Clarence Else had responded to Mrs. Cundiff's message by coming to the house. Else and Louis Meyers, the farm tenant, were at the Cundiff home when Heslinga and the two McCurdys arrived. Heslinga went into the house and there had a conversation with Meyers and Else in which he informed them he had business to transact with the Cundiffs concerning their estate and requested them to leave. Else and Meyers then went outdoors and visited with the two McCurdy men while Heslinga conversed with the Cundiffs in the house. Upon retiring from the house Heslinga informed Else that Sim and Grace had not executed the wills he had brought with him, and there were certain changes to be made. Heslinga and the two McCurdy men then left in Heslinga's car, and he returned to his law office in Oskaloosa where he prepared new wills *55 incorporating the additional provisions and names of beneficiaries the Cundiffs desired named in their wills. On the following morning, September 24, 1952, Heslinga again drove to Fremont in his car, picked up W. O. and James McCurdy as witnesses, and went to the Cundiff home for the purpose of having the Cundiff wills executed. Grace's will was read aloud and she then executed it and it was witnessed by the two McCurdy men. The prepared draft of Sim's will, Exhibit D-4, the provisions of which were similar to the will signed by Grace, was then read to Sim down to and including paragraph 3 thereof. At that point Sim indicated his dissatisfaction with its terms and pushed the will aside. He then indicated by sound and motion his desire to obtain some object lying upon the kitchen table, which was a piece of paper then on the table. This piece of paper was cut in a triangular shape. Those present endeavored to ascertain Sim's desires and the meaning of the paper. After extended questioning in which Sim could not make himself understood, Sim got out of his wheel chair, down onto the floor and grabbing the leg of Heslinga's trousers and crawling on his hands and knees led Heslinga, Grace and the others, outdoors to Heslinga's car, and by motions indicated his desire to take a ride. They got into the car and Heslinga drove the car in the direction indicated by Sim. He directed them south along the highway, past the crossroads to the railroad crossing at the southeast corner of the tenant farm, then back to the crossroads and west to the tenant house. They then proceeded west in the car to the railroad crossing at the northwest corner of the farm, then turned around and returned to the crossroads and then north to the Cundiff home. Upon their return Mrs. Cundiff suggested to all of them that the paper was in the shape of the tenant farm and perhaps it was intended to represent the farm. Heslinga then inquired of Sim whether he was trying to tell him something about the farm, and Sim, by word and by motion of his head, indicated he was. Then, through questions propounded by Heslinga and answers made by Sim, Sim indicated he wished to make a gift of the farm to the church, not by a will, but by a deed in which a life estate was to be retained by Sim and Grace. Heslinga explained the tax problems involved in such a transaction and the legal implications of a will as distinguished from a deed to be presently delivered. Heslinga told Mrs. Cundiff and Sim that a will could always be torn up and revoked but that a deed was final and could never be changed or revoked. Informing the Cundiffs that he would prepare such a deed and return to their home later on that day for its execution, Heslinga, W. O. and James McCurdy returned to Fremont. Heslinga obtained a blank deed form and a plat book from the Fremont Bank and after determining the correct legal description of the real estate involved, he prepared the deed on a borrowed typewriter. He ate his lunch alone at a cafe in Fremont and then returned to the Cundiff home. W. O. McCurdy again went with him. It appears during Heslinga's absence Grace Cundiff telephoned Mrs. Mathews and said to her: "I've a very happy surprise for you and Dr. Mathews. I want you to come right on out to our place." Dr. and Mrs. Mathews responded to this request by immediately driving out to the Cundiff home in their automobile. Upon their arrival at the Cundiff home Grace did not immediately reveal to them the plan to make a gift of the farm to the church. When Heslinga arrived, he informed Dr. Mathews he had some business to transact with the Cundiffs which concerned the church and he did not wish them to be present. Grace then joined Heslinga and Sim in the back yard while Dr. and Mrs. Mathews remained in the front yard and W. O. McCurdy went to the porch of the house. Heslinga then read the deed in full, including the acknowledgment certificate, to Grace and Sim. The deed was then executed by Grace and Sim, and Heslinga completed the acknowledgment form in his capacity as a notary public. Heslinga then called Dr. and Mrs. Mathews and W. O. McCurdy into the back yard and there, in *56 the presence of Sim and Grace, informed all those present that Sim and Grace had just made a gift of their tenant farm to the church, by deeding it to the church. The deed was then handed by Heslinga to W. O. McCurdy. W. O. McCurdy and Dr. Mathews, on behalf of the church, expressed their very great appreciation for the gift and Dr. Mathews offered prayer in thanks. McCurdy then handed the deed to Heslinga and instructed him to take it to Oskaloosa to be recorded. There is a dispute as to whether Sim or Grace voiced or indicated any objection to the recording or publishing of the deed. However, the following day Mr. Heslinga did send the deed to the Mahaska County Recorder for recording. Upon being informed that his bill was $13.00, Grace prepared a check in that amount and handed it to Heslinga before he left for Oskaloosa. No one else paid Heslinga for these services. It further appears that Heslinga at no time ever represented or acted as attorney for the Fremont Methodist Church, Dr. Mathews, any of the McCurdys or the partnership which is known as the McCurdy Seed Company. On the day after the execution of the deed, September 25th, Mildred McCurdy was at the Cundiff home and Mrs. Cundiff told her: "We deeded this other farm to the Church. It was all Sim's idea." At that time she showed Mildred the triangular piece of paper, and told her Sim had cut it out. A birthday-wedding anniversary party was held at the Cundiff home on September 28th. Subsequent to that date, and on September 30th, the Oskaloosa Herald published a list of all deeds which had been recorded recently in the County Recorder's office, including the Cundiff deed to defendant church. Prior thereto Grace told Louis Meyers, their tenant, about the execution of the deed, but at the party there was no reference to the execution of the deed and no complaint was made concerning its execution. It was following the recording of the deed and talks with various persons that Grace made complaint concerning its execution and delivery. The minister first heard of this change of heart when she called him on the telephone and threatened to "close the doors of the Church" unless they returned the conveyance. Thereafter Louis Meyers took Grace to Heslinga's office to solicit his aid in helping her obtain the return of the deed, and when he declined to help her, Meyers took her to the office of another lawyer, John Sproatt, to consult with him concerning the deed. There is little controversy in the case as to the applicable law, and the correct result rests largely upon an accurate determination and application of the facts involved. I. One of appellant's contentions is that the trial court erred in finding from the disclosed facts that a confidential relationship existed between Dr. Mathews and W. O. McCurdy, chairman of the church board of trustees, on one hand, and Sim and Grace Cundiff on the other hand, thereby putting the burden upon appellant to justify the deed. As usual in cases of this nature this question lies at the threshold of a proper determination of the lawsuit. The record, as voluminous as it is, contains little direct evidence bearing on the subject. True, there was the relationship of clergyman and parishioner, but it is well settled that such relationship alone is not conclusive of a confidential relationship. Coughlin v. St. Patrick's Church, 201 Iowa 1268, 203 N.W. 812; Humphrey v. Norwood, 213 Iowa 912, 918, 240 N.W. 232; Roller v. Roller, 201 Iowa 1077, 1082, 203 N.W. 41; Stonewall v. Danielson, 204 Iowa 1367, 1370, 217 N.W. 456; O'Neil v. Morrison, 211 Iowa 416, 233 N.W. 708. Indeed few relationships in name only do carry such import, but the true test has been set forth in several of our cases and reaffirmed as late as our past session. See Dibel v. Meredith, 233 Iowa 545, 549, 10 N.W.2d 28; Merritt v. Easterly, 226 Iowa 514, 284 N.W. 397; Knigge v. Dencker, Iowa, 72 N.W.2d 494. The object back of the rule is to prevent one standing *57 in a confidential relationship with another from gaining an advantage in a transaction with the cestui que trust, which may reasonably be the result of the confidence reposed. Thus before one is allowed to retain the advantages of the transaction, he must show that the cestui acted with freedom, intelligence, and full knowledge of all the facts. Utterback v. Hollingsworth, 208 Iowa 300, 225 N.W. 419, and cases cited therein. Usually the burden is on one seeking to set aside a deed upon the grounds of mental incapacity and undue influence such as we have here, and he is required to prove the allegations, not by a mere preponderance of the evidence, but by clear, satisfactory and convincing evidence. Merritt v. Easterly, supra, 226 Iowa 514, 516, 284 N.W. 397; Crawford v. Raible, 206 Iowa 732, 745, 221 N.W. 474; Foster v. Foster, 223 Iowa 455, 457, 273 N.W. 165. It should therefore be necessary for one alleging a confidential relationship so as to raise a presumption that transactions between the parties are improper or fraudulent, and shift the burden of proving that the cestui acted freely and with full knowledge of all the facts, to prove that relationship in a clear and convincing manner. Popejoy v. Eastburn, 241 Iowa 747, 757, 41 N.W.2d 764. Some little confusion has resulted in the consideration of most any friendly relationship as a showing of confidential relationship, but far more is necessary. Evidence must be produced to show how and in what manner the alleged trust was reposed, and how the dominance was exercised. The facts giving rise to the relationship, the showing that the one party was actually in a position of dominance or superiority, and the cestui in a corresponding position of inferiority or subservience, the strength of will of one and weakness of the other, the intimate character of their relation, and the facts showing the manner in which trusts and confidences had been reposed in the dominant party, must appear. In other words, this relationship should be clearly shown and not left to conjecture. We think here the trial court fell into error by assuming, because of the religious nature of the relationship, it was a confidential relationship. This may be a considered factor but is far from conclusive and the ultimate confidential relationship presumed. The trusts, confidences, reliance, dominance, and subversion must be shown. Judge Mantz, speaking for our court in Dibel v. Meredith, supra, 233 Iowa at page 551, 10 N.W.2d at page 31, clarified the meaning of confidential relationship as follows: "It was the holding in the cited case [Merritt v. Easterly] based upon authority that a confidential relationship arises where one person gains the confidence of another and purports to act and advise with the other's interest in mind." He also had this to say in the same case, 233 Iowa at page 549, 10 N.W.2d at page 30: "A confidential relationship arises whenever a continuous trust is reposed by one person in the skill and integrity of another, and so it has been said that all the variety of relations in which dominion may be exercised by one person fall within the general term `confidential relation'." Citing 15 C.J.S., Confidential, p. 822; Pomeroy's Equity Jurisprudence, 3d Ed., section 956. Judge Bliss further pointed out in the case of Merritt v. Easterly, supra, 226 Iowa 514, 284 N.W. 397, some of the acts and circumstances under which a presumption of confidential relationship properly exists. From a careful reading of that case it is quite evident the defendant here was not shown exercising such a dominance or relationship toward the grantors. In that case the grantee took a deed from the grantor on March 3, 1937, which was alleged to be a gift. In November, 1935, grantee had moved in grantor's home and thereafter took complete charge of her affairs and attended to every detail. He took charge of her bank account and check book, made all deposits and withdrawals. The evidence disclosed he did many other things purportedly with her "interest in mind." It *58 was pointed out therein this court had no intention of fettering the operation of the principles which have been consistently followed by this and other courts in cases involving the correct and just presumption arising from confidential relationships by undertaking to define the term or give the precise limits thereof. Nevertheless we find therein an excellent discussion of the subject and a rather clear explanation of the elements required to be proven to establish this relationship. It is just and proper to so protect weak, incompetent and trusting persons from the fraudulent efforts of unscrupulous persons, but it is also necessary, we think, to show first how and in what manner that trust was reposed and how the dominance was exercised. In that respect the plaintiffs here have utterly failed. Except for the opportunity to exercise these influences, the evidence discloses no such relationship. We cannot say the usual pastoral visits at the Cundiff home by the minister and his wife, or an occasional call by the chairman of the church board of trustees, who was also the lay leader of this little 100-member church, especially after Sim's illness, can give rise to such an inference. There was no showing these men ever told the Cundiffs what to do, nor were they consulted about any business matters. It is true Mrs. Cundiff said, in answer to a leading question, they consulted about religious and business matters. Her testimony was as follows: "Q. Did you place trust and confidence in Mr. Mathews? A. Yes, sir. We sure did. "Q. Also Mr. McCurdy? A. We sure did. I thought he was a Christian man. * * * "Q. Did they discuss religious matters with you? A. Oh, yes. "Q. And some business matters? A. Yes. But I didn't always know about that, that would be in the back yard." But no further details were related. These were important, if true, to establish the alleged relationship, and without evidence thereof, it is of little value to the court. It is most difficult to find any evidence of the demands or dominance of this minister or Mr. McCurdy, or the subservience of the Cundiffs. They handled no business matters for the Cundiffs and, except for pleasant social relations, we find no evidence of dependence upon them. As a matter of fact, the Cundiffs seemed to be the ones who did the demanding, and these church people, including the daughter-in-law of Mr. McCurdy, a talented musician, and other neighbors and friends, went out of their way to be kind to them and do acts of servitude, especially after Sim's illness. See O'Neil v. Morrison, supra, 211 Iowa 416, 233 N.W. 708. The fact that McCurdy and his daughter-in-law provided transportation to Oskaloosa on September 22nd at the request of Mrs. Cundiff, does not infer a relationship of dominance over her or her husband. There is nothing at all in this record to show the grantors reposed any special faith and confidence in any suggestions of McCurdy or the minister, certainly not to the extent that they sacrificed their own ideas to those of the church officers. Indeed the evidence disclosed complete independent thinking for themselves, for Mrs. Cundiff wanted a will drawn to her liking, and Mr. Cundiff did not want a will but a deed to his liking. Not once does it appear that the minister or McCurdy offered even a suggestion, to say nothing of a demand for a deed or specific provision or a bequest in the wills for the benefit of the church. We cannot infer from their opportunity or even their disposition to do so that they did so, and thus relieve the parties who would set aside the deed from proving by clear, satisfactory and convincing evidence that its execution and delivery was obtained by undue influence, fraud, or due to the mental incompetency of the grantors. Their relationship was not shown to be any more pronounced than that of many other friends and neighbors who frequently came in to assist at the time of Mr. Cundiff's illness and convalescence. We conclude therefore plaintiffs have failed to prove the alleged trust, confidence, *59 reliance or dominance required to establish the confidential relationship alleged. II. The trial court found the defendant did not sustain the burden of proof imposed by law on it to show no unfair advantage was taken of the Cundiffs in the transaction. This conclusion, due to our difference with the trial court in Division I hereof, is therefore also in error. It was not defendant's burden, for we determined the alleged confidential relationship had not been established. Therefore, the burden remained the plaintiffs' to prove undue influence by clear, satisfactory and convincing evidence. Merritt v. Easterly, supra, 226 Iowa 514, 516, 284 N.W. 397; Mastain v. Butschy, 224 Iowa 68, 84, 276 N.W. 79. The expression of this court found in In re Estate of Mott, 200 Iowa 948, 205 N. W. 770, approved in Worth v. Pierson, 208 Iowa 353, 223 N.W. 752, and Arndt v. Lapel, 214 Iowa 594, 603, 243 N.W. 605, 609, is as follows: "`"Influence, to be undue, within the meaning of the law, must be such as to substitute the will of the person exercising the influence for that of the testator, thereby making the writing express, not the purpose and intent of the testator, but that of the person exercising the undue influence. It must be equivalent to moral coercion, must operate at the very time the will is made, and must dominate and control the making of it. [Citing many cases.] * * * Undue influence is not established by proof of opportunity to exercise it. Importunity, request, and persuasion that do not go to the point of controlling the will of the testator are not enough, nor is it established by proof of opportunity and disposition so to do. [Citing cases.] * * * Contestants must go further than this, and show not only the existence of the facts, but that said undue influence existed, and controlled the maker of the instrument in the disposition he made of his property, substituting the will of the person exercising the influence for the will of the person making the writing."'" Also see Knigge v. Dencker, recently handed down by this court and written by Justice Thompson, Iowa, 72 N.W.2d 494, and cases cited therein. As to the law of undue influence, little further need be said. Relationship of the parties, improvidence of the gift, activities of beneficiaries, and weakened mental condition might under some circumstances become important. It is manifest to us that under the record these elements did not control, and what we said as to the failure to prove facts that would give rise to a confidential relationship also applies here. See Osborn v. Fry, 202 Iowa 129, 209 N.W. 303; Humphrey v. Norwood, supra, 213 Iowa 912, 918, 240 N.W. 232. Although the burden of proof was not upon it, we think defendant has shown good faith in its relationship with the Cundiffs. There is no showing it interfered or tried to interfere with the wishes or decisions of either Grace or Sim Cundiff. It will be recalled Grace gave detailed instructions as to how she wished her will drawn and the attorney took notes on two occasions in order to incorporate therein the specific bequests desired by her. There is no contention McCurdy, who was present the first time, made even a suggestion. It was her desire that both prepared wills, hers and Sim's, provide that 50% of the balance left after both were deceased should go to the church building fund. There is no contention that after her will was so prepared she did not sign it in the presence of witnesses, or that Sim did not refuse to sign his will, and in doing so indicated he had other ideas about the tenant farm. When questioned by their attorney at that time, it developed Sim wished to deed that farm to the church rather than will 50% of all their remainder. When the legal implications of such a transfer were explained to him by the attorney, in her presence and in the presence of others, Sim signified that was his desire, and the deed was prepared. Rather than a straight deed, it provided for a life estate in Sim and Grace Cundiff and was executed and delivered in the afternoon of September 24, 1952. We have carefully reviewed the record and find nowhere even the slightest indication *60 that the will of either the minister or the board chairman was substituted for that of Sim or Grace Cundiff. As heretofore pointed out, if kindness or willingness to help these good people could supply that fact, then all the neighbors thereabout, including their tenants and their present guardian, must be viewed with suspicion, for they also called on the Cundiffs frequently after Sim's stroke and offered help and assistance. No doubt there was a feeling of gratitude toward all these people by the Cundiffs, but clearly we cannot infer thereby a dominance over Sim and Grace. They too, or most of them, were listed as beneficiaries under the prepared wills. But as previously pointed out, even if all these parties had tried to persuade the action of the Cundiffs, that would not have been sufficient, for the law requires a clear and convincing showing that the grantor's will was not his own but that of the party benefited by the instrument, to constitute the exercise of undue influence. Clearly then, the fact that several months before the illness of Sim, the minister and the board chairman had stopped to solicit church funds and report on a canvass to determine the feasibility of a church building program, did not furnish the basis of a superimposed will causing the execution of the deed. True, there was no consideration for the deed, but clearly none was intended, for it was a gift in contemplation of death. It can scarcely be called an improvident gift, for besides having the life use of the property, the Cundiffs still had a farm of about the same size and about $30,000 in cash and bonds. They had no children, and there were only a brother of Sim's, whom Grace did not like but feared, and a sister of Grace's, who seemed to be of no interest to Grace. As a matter of fact, it rather clearly appears the Cundiffs wished to do for the church. They had, before Sim's illness, given $800 at one time and $400 at another through a tenant. They wanted a new church built. Defendant contends, with some merit, it was the publicity they received due to the recording of the deed that caused the trouble. Whether it was that or the comments of their neighbors, it is evident they did change their minds. Even though they were warned by their lawyer at the time of the execution as to the import of a deed, they nevertheless now apparently wish to otherwise dispose of that property. Mrs. Cundiff testified that when she signed the deed, she knew it was a deed, and that before she signed it Heslinga said: "Mrs. Cundiff, if you sign a will, you can just tear it up, but you couldn't do a deed that way," and "Mrs. Cundiff, after you sign a will, you can have it changed, but you can't do a deed that way." She also testified that the deed "was Sim's idea" and that she signed it to please Sim. It is now too late to change their minds, for deeds may not be so easily upset. It was grantors' desire then, and if either of them thereafter became unsound of mind, who can say their desire thereafter is the right one? Sim suffered with arteriosclerosis, and how far that malady had developed does not appear. It is well known that it is a progressive disease and it is quite possible that he soon thereafter reached the stage where his mind was unsound. Clearly after that his will could not be determined. We find support for this conclusion in Leonard v. Leonard, 234 Iowa 421, 428, 12 N.W.2d 899, 902, where we said: "In order to set aside a deed such as the one in the present case the burden is upon the plaintiff to establish by clear, satisfactory and convincing testimony that the grantor at the time he signed it did not understand in any reasonable manner the nature of the particular transaction in which he was engaged and the consequences and effects upon his rights and interests. Foster v. Foster, 223 Iowa 455, 273 N.W. 165, and cases cited; * * *. The courts have uniformly upheld the right of every person to dispose of his property freely and in accordance with his wishes and have refused to permit such right to be disturbed without strong proof. * * * Our decisions uniformly hold that to set aside an instrument on the *61 ground of undue influence there must be such persuasion as results in overpowering the will of a person or prevents him from acting intelligently, understandingly and voluntarily—such influence as destroys the free agency of the grantor and substitutes the will of another person for his own." Citing Osborn v. Fry, 202 Iowa 129, 209 N.W. 303, and Gates v. Cole, 137 Iowa 613, 115 N.W. 236. Only by sheer conjecture could it be found here there existed any basis for a finding that the will of the grantor had been superimposed for nowhere do we find any testimony that anyone suggested that the Cundiffs deed the triangular or tenant farm to the church. Mrs. Cundiff herself said it was all Sim's idea. Then too, undue influence must operate at the very time the instrument is executed. In re Estate of Brooks, 229 Iowa 485, 493, 294 N.W. 735; In re Estate of Eiker, 233 Iowa 315, 317, 6 N.W.2d 318. The rule was well announced in In re Estate of Hollis, 324 Iowa 761, 769, 12 N.W. 2d 576, 581, where we said: "Undue influence, although of course it may be proven by circumstantial evidence, must be such as to substitute the will of the person exercising it for that of the testator, thereby making the writing express the purpose and intent of such person, not of the testator. It must be equivalent to moral coercion. It must operate at the very time the will is made and dominate and control its making. It is not established by proof of opportunity and disposition to exercise it. Importunity, request and persuasion that do not control the will are not enough." (Citing cases.) Also see Campbell v. Hale, 233 Iowa 264, 6 N.W.2d 128, for effect of available opportunity for independent advice. It is interesting to note, in regard to Grace Cundiff's declarations as to her intent on the execution of the deed, this pronouncement in In re Estate of Eiker, supra, at page 317 of 233 Iowa, at page 320 of 6 N.W.2d: "We have uniformly held that the fact of the exercise of undue influence cannot be established by proof of declarations of the testator made before or after the execution of the will, such declarations not being substantive evidence of undue influence. There must be some substantive evidence of the exercise of undue influence before declarations may be considered." Reasonable limits of an opinion do not permit a discussion of all the contentions relating to undue influence. However, we conclude there was insufficient clear, satisfactory, and convincing proof of undue influence exercised by defendant in procuring the deed. III. Perhaps plaintiffs' principal contention is that both Sim Cundiff and his wife Grace did not have mental capacity to execute the deed, and did not know or realize the import of their act. Such contention likewise demands of plaintiffs clear, satisfactory, and convincing evidence. We find no merit in the contention as to Grace Cundiff. The most persuasive evidence produced as to her mental capacity was from her own doctor, Dr. Voigt, who said, after an examination of her two days before the deed was signed, that she was mentally competent to execute such instruments. Grace said she was nervous, distracted and mentally disturbed due to Sim's illness, and though she knew she was signing a deed, and its import, she was doing it to humor Sim and did not think it would amount to any actual transfer. Several friends and neighbors testified she appeared distraught and mentally disturbed after Sim's illness, but none said she was of unsound mind. Mere mental weakness in a grantor is not grounds to invalidate a deed. In Nowlen v. Nowlen, 122 Iowa 541, 546, 98 N.W. 383, 384, we said: "Mere mental weakness in a grantor will not invalidate a deed. To have that effect, the mental powers must be so far deteriorated or destroyed that the grantor is incapable of understanding in a reasonable *62 degree the nature and consequences of the instrument he executes." Also see Paulus v. Reed, 121 Iowa 224, 96 N.W. 757; Gernhart v. Gernhart, 194 Iowa 487, 185 N.W. 483. Plaintiffs' witnesses said Grace was "worked up like anyone would be," and "Grace appeared to be very distraught and worked up" due to Sim's stroke and physical disability. Dr. McNichols, called by plaintiffs, did not express an opinion as to her mental soundness. We think there is no question that she had the mental capacity to execute the deed on September 24, 1952, knew exactly what she was doing, and knew the consequences of the act. She said she knew it was a deed, but thought it was all being done to please Sim and therefore meant nothing; in other words, was all a hoax upon her unfortunate spouse. We doubt that story. As to Sim the evidence, though somewhat stronger, is still insufficient to satisfy us he was of unsound mind or did not know what he was doing on the date the deed was executed, or that he did not have the ability to comprehend and understand the nature of his act and its consequences. See 26 C.J.S., Deeds, § 54, page 264, note 95. Mere weakness of mind, or periods of unsoundness of mind in or about that time, are not sufficient proof of mental incapacity to execute a deed if at the time of its execution it clearly appears one has the capacity to comprehend and understand the nature of his act and its consequences. Nowlen v. Nowlen, supra; Altig v. Altig, 137 Iowa 420, 423, 114 N.W. 1056; Cavanagh v. O'Connor, 186 Iowa 257, 264, 169 N.W. 747; Coughlin v. St. Patrick's Church, supra; Leonard v. Leonard, supra; Keune v. McCauley, 228 Iowa 607, 609, 293 N. W. 25. Here too plaintiffs offered no testimony as to Sim's actual mental condition on the day the deed was executed. An expert witness, Dr. McNichols, produced by plaintiffs, freely admitted that one suffering from the ailment such as Sim had, might possibly have subsequent sane or lucid intervals, though a permanent recovery was not possible. It is true Dr. Campbell, a physician who examined him some months later, found him to be of unsound mind, and said in his opinion that condition existed at the time of the conveyance. But on the other hand, Dr. McNichols, who attended Sim at the time of the stroke in July, 1952, said it was not too severe and he would improve both physically and mentally sixty or ninety days thereafter. On the day of the stroke Dr. McNichols considered him of unsound mind, but did not examine him thereafter and did not know whether he was of sound or unsound mind on September 24, 1952. However, from his experience with like cases, the greater percentage of cases did not result in the patient's loss of a sound mind. "They are of sound mind following a stroke such as Sim Cundiff sustained," he said. There was the usual testimony of nonexperts as to Sim's mind, and the tenor of those opinions was that, although he knew and recognized them, because he had a blank expression on his face, could only talk or make himself understood with difficulty, mostly answering questions with yes or no, could walk very little and did not show too much interest in things about him, he was of unsound mind, at least at times; also that he was forgetful. They are not very helpful, nor are the facts upon which these witnesses based their opinions as to Sim's mental soundness. See Olson v. Olson, 242 Iowa 192, 204, 46 N.W.2d 1, 40 A.L.R.2d 1. None testified as to the state of his mind on September 24, 1952, the day the instrument was signed. On the other hand, Dr. Voigt, Sim's physician of several years past, expressed the opinion to the Cundiffs' attorney, Mr. Heslinga, two days before the deed was signed that he thought Sim of sound mind and able to execute a legal document. The undisputed testimony that Sim rejected the will Grace had drawn for him and in a rather ingenious manner indicated the land he wished to deed to the church instead, and the answers given to Attorney Heslinga when he inquired as to Sim's desire, seems to lead to the conclusion he did at that time have the capacity to comprehend *63 and to understand the nature of his act and its consequences. Even Grace said "It was all Sim's idea." As a matter of fact it was a gift which probably would be less than 50% of the remainder after Grace and Sim died, and reasonably could be expected to result in lower court costs in realization. It disclosed a rational decision, if they desired to give a substantial gift to the church. We fail to find in these undenied transactions any clear or convincing evidence of undue influence or mental incapacity of either party, and therefore plaintiffs' contentions that such existed at or near the time of the deed's execution must fail. It may be conceded that weakened mental condition such as Sim Cundiff suffered is a factor to be considered, but here he was attended by his wife Grace and his attorney Heslinga, and only by them at the time of the execution of the deed. It must be concluded they would not have permitted him to sign the deed if they had not been convinced he knew what he wanted, what he was doing. They were his helpers and were in a position to give him independent advice or the guidance he might desire. Merritt v. Easterly, supra, at page 528 of 226 Iowa, at page 404 of 284 N.W. Even from plaintiffs evidence it satisfactorily appears that on September 24, 1952, the grantors intended the deed to the land in controversy should be delivered to defendant herein. It would unduly extend this opinion, already too long, to comment at length upon all the testimony and conflicting evidence on Sim's mental soundness, so we say upon the whole record plaintiffs have failed to show by clear, satisfactory, and convincing evidence that Sim or Grace were so mentally incompetent at the time the deed was made that they did not know what they were doing or understand the consequences of their act. We are supported by a host of cases, among which are: Merritt v. Easterly, supra, 226 Iowa 514, 516, 284 N.W. 397; Crawford v. Raible, supra, 206 Iowa 732, 745, 221 N.W. 474; Keating v. Augustine, 213 Iowa 1336, 1347, 241 N.W. 429; Foster v. Foster, supra, 223 Iowa 455, 457, 273 N.W. 165. Furthermore there is a strong presumption in favor of the grantors' mental competency. Evers v. Webb, 186 Iowa 1172, 1178, 173 N.W. 264; Wilson v. Wilson, 240 Iowa 26, 34 N.W. 2d 911. In Coughlin v. St. Patrick's Church, supra, 201 Iowa 1268, 1280, 203 N.W. 812, we said: "While the case is close on the fact question of mental competency,—more so than on the question of undue influence,— we are of the opinion that, at the time of the execution of the conveyances, the grantor was possessed of such mental capacity as enabled him, in law, to execute the deeds in question." Perhaps the most significant fact on the issue of mental capacity is the apparent willingness of Grace to permit Sim to sign the deed and to join him in doing so, and the fact that Sim's own attorney, Garold Heslinga, permitted him to execute the deed after consulting with Sim's own physician, Dr. Voigt, relative to Grace and Sim's mental condition. These facts are quite persuasive of the regularity of this transaction. IV. In arriving at a conclusion different from that of the trial court, we are aware that we have said many times we give serious consideration to the findings of that court because it saw and heard the witnesses. However, we are not bound by its finding, especially in matters like the one at hand where the law is not in dispute and the witnesses who testified to various facts were apparently attempting to tell the truth. There appears to be no serious question of credibility or veracity which should be left to the trial court's better determination. We must, we think, determine for ourselves whether the case has been established by clear, satisfactory, and convincing evidence. Of course this matter is reviewable de novo. Peddicord v. Peddicord, 242 Iowa 555, 47 N.W.2d 264. It is here not a question whether these witnesses have an honest and abiding convictim *64 as to their expressed opinions on the mental capacity of the parties, but whether the facts they relate are sufficient to support such opinions and convince the court of their correctness. Those opinions are not controlling. They did not refer to the time the deed was made, and some of them did not express the belief Sim was at all times unable to know what he was doing or what was going on. Quite the contrary, he knew most of them at all times and conversed with them the best he could with his speech defect. We attach little significance to the fact he sometimes tried to put a lighted end of a cigar in his mouth, and on one occasion started to wash his feet with his socks on. Many sane old men are just that forgetful. At the most these incidents could disclose only a weakness of mind and body or a forgetfulness common to people of his age, and not a condition which disclosed an inability to know or understand the nature of his acts and their consequences. We must therefore differ with the conclusions of the able trial court in this matter. V. We should not conclude this opinion without some comment upon the unfortunate reflection cast upon Mr. Heslinga, the attorney who was drawn into this controversy by being employed by Mrs. Cundiff. We are convinced he served only the Cundiffs. They alone paid him for his services. As the attorney for the Cundiffs we are convinced he furnished them independent, good, and correct legal advice, and nothing is shown to substantiate a charge that he conspired to aid the church obtain the deed in controversy. He received only $13 for his services, which consisted of a conference in Oskaloosa and two trips to the Cundiff home near Fremont, plus the preparation of four wills and a deed. The only possible mistake he made was to assume the Cundiffs wanted their friend Mr. McCurdy as a witness to the wills and took him and his son along for that purpose. However, there is not the slightest indication he was acting for the minister, Mr. McCurdy, or anyone but the Cundiffs. It is suggested the neighbors could have been used as witnesses, but it does not appear the attorney personally knew them or that they may have been desired by the Cundiffs. VI. Defendant's counterclaim, which prayed that its title to the real estate be quieted subject only to the life estate of Sim and Grace Cundiff, should be upheld. The trial court's dismissal of the counterclaim, as well as its cancellation of the deed, must therefore be reversed. Reversed and remanded for decree in accordance with this opinion. Reversed and remanded. All Justices concur except OLIVER, C. J., and PETERSON, J., who take no part.

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : No. 65 WAL 2019 : Respondent : : Petition for Allowance of Appeal from : the Order of the Superior Court v. : : : JOSEPH MARION, : : Petitioner : ORDER PER CURIAM AND NOW, this 6th day of August, 2019, the Petition for Allowance of Appeal is DENIED. 

498 So.2d 854 (1986) David COPELAND v. PERSONNEL BOARD OF JEFFERSON COUNTY, Oscar Stillwagon, and Belinda Rushon. Civ. 5429. Court of Civil Appeals of Alabama. November 5, 1986. *855 David Copeland, pro se. Charles H. Wyatt, Jr., Birmingham, for appellees Stillwagon and Rushon. Judson Eugene Tomlin, Jr., and Charles A. McCallum III of Haskell, Slaughter & Young, Birmingham, for appellee Personnel Bd. of Jefferson County. BRADLEY, Judge. This is an appeal of a Jefferson County Personnel Board decision. The plaintiff in the present case was prosecuted in the Birmingham Municipal Court on criminal charges involving assault, battery, and harassment. The plaintiff subpoenaed over seventy witnesses to testify in his defense to the criminal charges brought against him in the municipal court. One of the persons subpoenaed was Mr. Oscar Stillwagon, the chief clerk for the Birmingham Municipal Court. After the criminal proceeding, at which the plaintiff was convicted of the charges against him and ordered to pay a fine, the plaintiff filed a complaint with the Jefferson County Personnel Board wherein he sought the dismissal of Mr. Stillwagon and another municipal court employee, Ms. Belinda Rushon, who was the subpoena clerk. A hearing was held by the Jefferson County Personnel Board wherein the Board examined the conduct of both employees. At the hearing the plaintiff alleged that Mr. Stillwagon was guilty of misconduct for failing to appear at the previous criminal proceeding after being subpoenaed. The plaintiff alleged that Ms. Rushon was guilty of misconduct for failing to properly issue all of the subpoenas he requested be issued. During the Personnel Board hearing the plaintiff voluntarily dropped the complaint he previously lodged against Ms. Rushon. The remainder of the proceeding, therefore, was devoted to the allegations surrounding Mr. Stillwagon's conduct. After the hearing the Personnel Board concluded that Mr. Stillwagon was not guilty of misconduct, and, therefore, dismissed the charges against him. The plaintiff subsequently sought review of the Personnel Board decision by the Circuit Court of Jefferson County, and a three-judge panel was appointed to review the Personnel Board decision. The three-judge panel affirmed the decision of the Jefferson County Personnel Board. The plaintiff seeks review in this court. The method of review of a three-judge circuit court panel decision upholding a Jefferson County Personnel Board order is by common-law writ of certiorari. See Ex parte Smith, 394 So.2d 45 (Ala.Civ.App. 1981). Review of the writ of certiorari in this court is limited to a consideration of the proper application of the law by the circuit court and whether that court's decision is supported by the legal evidence. Ex parte Smith, supra. The record in the present case indicates that the plaintiff filed a complaint with the Personnel Board, alleging that Mr. Stillwagon failed to answer a subpoena. The record also indicates the plaintiff filed a complaint against Ms. Rushon, alleging she was guilty of misconduct for failing to issue several subpoenas. The plaintiff voluntarily *856 dismissed his complaint against Ms. Rushon at trial. The testimony before the Personnel Board indicates that Mr. Stillwagon was served with a subpoena to appear at the plaintiff's trial in municipal court; however, because of job-related obligations, Mr. Stillwagon had to be in Ensley, Alabama on the day of the plaintiff's criminal trial. In an effort to comply with the subpoena, Mr. Stillwagon informed Municipal Court Judge Emory Anthony of the circumstances necessitating his absence from court. Judge Anthony nonetheless placed Mr. Stillwagon on call in the event that his testimony was necessary for the disposition of the criminal case. The plaintiff attempted to call Mr. Stillwagon as a witness in the marathon municipal case which lasted almost a day and in which the plaintiff subpoenaed over seventy witnesses. The plaintiff purportedly wanted to use Mr. Stillwagon's testimony to impeach the testimony of one of his own prior witnesses. The record indicates, however, that Judge Anthony denied the plaintiff's request that Stillwagon be allowed to testify because Stillwagon lacked personal knowledge about the matter at hand. As the evidence shows, Mr. Stillwagon was on call but did not testify because the trial judge ruled that his testimony would be irrelevant. After a careful review of the record, we are satisfied there is an absence of evidence that would support a finding that either Ms. Rushon or Mr. Stillwagon was guilty of misconduct during plaintiff's criminal trial. Mr. Stillwagon did answer the subpoena, and the complaint against Ms. Rushon was dropped at the Personnel Board hearing. For these reasons, we hold that the circuit court's decision is supported by the evidence. See, City of Mobile v. Seals, 471 So.2d 431 (Ala.Civ.App. 1985). Therefore, its judgment is affirmed. AFFIRMED. WRIGHT, P.J., and HOLMES, J., concur.

204 B.R. 18 (1997) In re KELLY FOOD PRODUCTS, INC., Debtor. G & G SALES CORPORATION, Plaintiff, v. KELLY FOOD PRODUCTS, INC., Defendant. RED RIVER VALLEY POTATO MARKETING ASSOCIATION, Plaintiff, v. KELLY FOOD PRODUCTS, INC., Defendant. Bankruptcy Case No. 96-72781, Adversary Nos. 96-7198, 96-7199. United States Bankruptcy Court, C.D. Illinois. January 10, 1997. *19 Richard P. Klaus, Champaign, IL, for G & G Sales. Stephen P. McCarron, Louis W. Diess, III, Washington, DC, for Red River Valley. Barry M. Barash, Galesburg, IL, for Debtor. Timothy J. Howard, Peoria, IL, for First of America Bank. OPINION LARRY L. LESSEN, Bankruptcy Judge. The two issues before the Court are (i) the scope of protection provided by preserving the benefits of a PACA trust through the newly-authorized method of placing a statutorily-prescribed statement on a bill or invoice statement as opposed to preserving one's rights through the traditional written *20 notice, and (ii) whether a PACA statutory trust is a "true trust" or merely a disguised security agreement. Kelly Food Products, Inc. ("Kelly") is a Chapter 11 Debtor-in-possession. First of America Bank-Illinois, N.A. ("FOA") is Kelly's largest secured creditor with a first priority security interest in virtually all of Kelly's assets, including inventory and accounts receivable. FOA currently holds approximately $330,000 of Kelly's cash assets, to which Plaintiffs claim they are entitled under the provisions of the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 499e. FOA concedes that its first priority security interest in the subject $330,000 would be inferior to a valid PACA trust claim. This matter is before the Court on Plaintiffs' Motion for Turnover wherein Plaintiffs assert that, as the only protected PACA claimants, they are entitled to have the $330,000 being held by FOA turned over to them. Kelly objects to the turnover, claiming that the funds are not PACA trust assets because the new method of preserving trust claims, through placing the prescribed language on the invoice or bill, limits the assets subject to the trust claims to the particular inventory and proceeds from their inventory which, Kelly further asserts (and is essentially conceded), are long gone. Kelly cites In re Zois, 201 B.R. 501 (Bankr.N.D.Ill.1996) for the proposition that the res of a PACA trust on perishable goods disappears as the perishable goods perish. Plaintiffs counter that the sole purpose and effect of the new subsection was to create another way for suppliers to preserve their rights in the trust and that the new subsection has no bearing on the nature or extent of the PACA trust. PACA creates a non-segregated floating trust on perishable commodities that permits the commingling of trust assets without defeating the trust. In re Zois, supra at 509; Endico Potatoes, Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063, 1067 (2d Cir.1995); JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 78 (2d Cir.1990). In order to preserve the trust, 7 U.S.C. § 499e(c)(3) requires that the seller give the purchaser written notice of intent to preserve the PACA trust benefits and file that notice with the Secretary of Agriculture within a prescribed period of time. The PACA notice must be in writing, state that it is a notice of intent to preserve PACA trust benefits and include certain prescribed information. In November 15, 1995, 7 U.S.C. § 499e was amended to add subsection (c)(4), which provided an alternative method of preserving the benefits of the PACA trust. Under this amendment, a beneficiary may use ordinary and usual billing or invoice statements to provide notice of the supplier's intent to preserve the trust. To accomplish preservation of the trust benefits under this subsection, the bill or invoice must contain on its face the following language: The perishable agricultural commodities listed on this invoice are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499e(c)). The seller of these commodities retains a trust claim over these commodities, all inventories of food or other products derived from these commodities, and any receivables or proceeds from the sale of these commodities until full payment is received. 7 U.S.C. § 499e(c)(4). In this case, it is conceded that the Plaintiffs preserved their rights under the trust provisions of 7 U.S.C. § 499e(c) through the method set forth in subsection (c)(4) with the required language. Plaintiff G & G Sales Corporation ("G & G") asserts a PACA trust claim in the amount of $259,860.06 and Plaintiff Red River Valley Potato Marketing Association ("Red River") asserts a PACA trust claim is the amount of $181,455.03. On the issue of the scope of the new method of trust preservation under PACA, this appears to be a question of first impression in the federal courts. While there is no judicial precedent interpreting this new subsection, the legislative history provides solid evidence of Congress' intent. H.R.Rep. No. 207, 104th Cong., 1st Sess., at 9 (1995) states in part as follows: The amendments to the PACA trust provisions contained in this legislation are intended to strengthen and improve the operation of the trust and eliminate the *21 expense to USDA in administering these provisions. . . . To enhance the operation of the trust, an alternate method of preserving trust benefits has been included in the bill. The current requirement to file a trust notice with the USDA is eliminated. Instead, the legislation makes clear that a licensee may use standard invoices or other billing statements to provide notice to the buyer of intent to preserve trust benefits . . . Under current law, the trust is in effect at the time of shipment of the perishable commodity. The unpaid supplier, seller or agent must provide notice of trust coverage to the buyer in order to preserve these trust benefits. Consistent with this principle, this legislation, under paragraph 4 of section 5(c) of PACA, provides that the suppliers, seller, or agent may perfect its trust claim by giving notice to the buyer on the invoice or billing statement. This change to the Act provides both a convenience and cost savings to the unpaid supplier, seller or agent. The Committee intends the effect of notice provided through the use of usual billing or invoice statements to be the legal equivalent to the current practice of providing notice subsequent to the payment date by means independent of the billing statement or invoice. (Emphasis added). It is quite clear that Congress' intent in adding § 499e(c)(4) was to provide a simpler and, for the government, a less expensive way for suppliers to preserve their trust rights. It is equally clear that Congress had no intent to redefine what constitutes the trust res under PACA. If Congress had intended to redefine or limit the trust res, it could have and should have amended § 499e(c)(2), which defines trust res, rather than dealing with the issue in a subsection relating only to preservation. In addition, the last sentence of the legislative history set forth above is very clear about the effect of the amendment — it says that the new method of trust preservation is the legal equivalent of the then current practice of filing notice set forth in subsection (c)(3). It says nothing about providing lesser or different protection through the new alternative manner of preservation. Clearly, if it had been Congress' intent to do what Kelly has asserted, the legislative history would not say that the new method of trust preservation is the legal equivalent of filing notice; moreover, the statute, or at least the legislative history, would have explicitly stated that the alternative method of preservation, though available, provides much more limited protection to suppliers. In fact, in the context of perishable agricultural commodities, the protection provided by § 499e(c)(4) under Kelly's interpretation would be so fleeting as to be virtually meaningless in many contexts where the useful life of the products is only a matter of days. Virtually no informed perishable commodity supplier would use § 499e(c)(4) because of the greatly reduced benefit as compared to the traditional manner of preservation and corresponding trust. Finally, if Kelly's position were correct, Congress would have set a dangerous (and well-camouflaged) trap for unwary sellers with its 1995 amendment, completely undercutting the purpose of PACA, which was enacted to protect such sellers. Kelly's reliance on In re Zois, supra, in support of its position is misplaced. Kelly accurately cites Zois for the holding that a PACA trust res consisting of perishable goods disappears as the perishable goods perish. However, this holding does not purport to define or limit the scope of a PACA trust res or alter how a supplier avails itself of PACA protection; in fact, Judge Schmetterer's opinion in Zois is in accord with other published precedent on the issues of what constitutes the res of a PACA trust and how a supplier protects its interest in the trust. Zois acknowledges that "(t)here is no necessity to specifically identify all of the trust assets through each step of the asset accrual and disposal process. Since commingling is contemplated, all trust assets would be subject to the claims of unpaid seller-suppliers and agents to the extent of the amount owed them." Zois, supra at 509, citing H.R.Rep. No. 98-543 (1983), reprinted in 1984 U.S.C.C.A.N. 405. In addition, Zois acknowledges that a "PACA (t)rust consists of perishable goods, products derived from those goods, and all receivables or proceeds from the sale of those goods." Zois, supra *22 at 508, citing 7 U.S.C.A. § 499e(c)(2). Accordingly, the fact that Zois recognizes that a PACA trust res may diminish through both liquidation and rotting does little to advance Kelly's position. The second question raised is Kelly's interest in the subject $330,000. Kelly asserts that it has an interest in the funds superior to that of FOA by virtue of the trustee's strong-arm powers under 11 U.S.C. § 551, which Kelly may exercise as a debtor-in-possession pursuant to 11 U.S.C. § 1107(a). However, Kelly concedes that it has no strong-arm powers if the $330,000 is subject to a "true trust"; Kelly argues that the PACA trust is not a "true trust", but is more like a "floating lien" or a "disguised security agreement" under the Uniform Commercial Code. Defendant's Points & Authorities, pp. 5-6. Plaintiffs counter that the PACA trust is a "true trust" and, such being the case, Kelly has no interest in the funds and, consequently, no standing to object to the Motion for Turnover. On the question of whether the PACA trust is a "true trust", the federal courts have unanimously answered the question in the affirmative. See Matter of Snyder, 184 B.R. 473, 475 (D.Md.1995) (the PACA trust satisfies all of the requirements of an express trust); In re Harper, 150 B.R. 416, 418-19 (Bankr.E.D.Tenn.1993) (PACA trust satisfies express trust requirements); In re Nix, 1992 WL 119143, p. 9. (M.D.Ga.) (PACA creates a true trust). Kelly failed to provide, and this Court was unable to find, any case which held that the PACA trust was anything other than a "true trust". Accordingly, Kelly's theory, though innovative, is without any precedential support and hence must be rejected. To summarize, the subject $330,000 is not subject to Kelly's strong-arm powers pursuant to 11 U.S.C. § 551 because it has been properly preserved in a PACA trust, which the Court finds to be a true trust and not a disguised security agreement. Hence, Kelly, by its own admission, has no interest in the $330,000 in the hands of FOA. Even if it had been determined that Kelly had an interest in the funds, the Court finds that, by properly preserving their trust claims pursuant to 7 U.S.C. § 499e(c)(4), Plaintiffs' trust claims are not limited only to receivables attributable to the specific goods described in their invoices, but rather extend to the subject $330,000 as well. As stated above, G & G asserts a PACA trust claim in the amount of $259,860.06 and Red River's PACA trust claim is for $181,455.03. Hence, the aggregate amount of valid PACA trust claims is $441,315.09. Plaintiffs and FOA have previously agreed that $20,000 of the available funds should be held back for future administrative costs in collecting accounts receivable, leaving approximately $310,000 available for distribution to valid PACA trust claimants. As G & G's trust claim constitutes 58.88311% of the total valid trust claims, G & G is entitled to 58.88311% of the funds collected by FOA (less $20,000 holdback), or approximately $182,537.64 ($310,000 × .5888311). Red River's claim is 41.11689% of the total valid trust claims; hence Red River is entitled to 41.11689% of the funds collected by FOA (less $20,000 holdback), or approximately $127,462.36 ($310,000 × .4111689). For the reasons set forth above, Plaintiffs' Motion for Emergency Relief and Immediate Turnover of Trust Funds is granted. This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure.

In The Court of Appeals Seventh District of Texas at Amarillo No. 07-18-00185-CV MARK DAVIS, APPELLANT V. HIGHLAND CORYELL RANCH, LLC, APPELLEE On Appeal from the 13th District Court Navarro County, Texas Trial Court No. D12-21464-CV, Honorable James E. Lagomarsino, Presiding June 18, 2019 OPINION Before QUINN, C.J., and CAMPBELL and PARKER, JJ. Again, we are asked to decide whether Mark Davis, a former member of Highland Coryell Ranch, LLC, may peruse various books and records of the company.1 The parties initially broached the issue to us via an appeal from a summary judgment favoring Highland. See Davis v. Highland Coryell Ranch, LLC, No. 07-15-00269-CV, 2016 Tex. App. LEXIS 3138 (Tex. App.—Amarillo Mar. 18, 2018, pet. denied) (mem. op.). Due to 1 Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3. the absence from the summary judgment record of pertinent company records, though, we were unable to provide them a substantive answer. Id. at *4–5 (stating that “[t]he summary judgment record before us does not contain the ‘governing documents’ of Highland. Without them, the trial court could not hold that Highland established, as a matter of law, that Davis was unentitled to view the records.”). Upon remand, Highland filed a second summary judgment motion. Attached to it were the governing documents alluded to in our first opinion. The trial court granted the motion, thereby denying Davis opportunity to review the documents and disposing of his suit to access them. We reverse. Law of the Case A preliminary matter before us concerns the doctrine of law of the case. Davis argues that, through our prior opinion, we held that the statutes in play entitled him, as a matter of law, to review the records. Thus, our purported holding allegedly constitutes the law of the case, controls the outcome here, and requires reversal without further comment. We disagree. Per the doctrine of law of the case, questions of law decided on appeal to a court of last resort generally govern the case throughout its subsequent stages. State v. Riemer, No. 07-18-00002-CV, 2019 Tex. App. LEXIS 1801, at *5 (Tex. App.—Amarillo Mar. 7, 2019, no pet.). In other words, a court of appeals is ordinarily bound by its initial decision if there is a subsequent appeal in the same case. See Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). Reconsideration of issues is not absolutely barred, however. Id. Indeed, whether to apply the doctrine is a discretionary matter. Id.; Riemer, 2019 Tex. App. LEXIS 1801, at *5. Examples of when discretion may be 2 exercised legitimately to forgo application of the doctrine include situations where either the issues or facts presented in successive appeals substantially differ from those presented earlier, see Riemer, 2019 Tex. App. LEXIS 1801, at *5–6, and where the prior decision was clearly wrong. See Briscoe, 102 S.W.3d at 716–17. Highland argues, among other things, that if we did interpret the relevant statutes in a manner favorable to Davis, then we were clearly wrong. That, at the very least, is a sufficient reason to forgo the doctrine’s application here. Simply put, a wrong decision is subject to correction. Additionally, our resolution of the prior appeal revolved around whether Highland established its entitlement to summary judgment as a matter of law based on the summary judgment record before the trial court. Though we alluded to statutes there that have continued relevance here, the central debate here differs from that there. As we observed in our initial opinion, the statutory definitions in play here were not cited or addressed by either party there. Davis, 2016 Tex. App. LEXIS 3138, at *3. So, the issue now before us differs in a substantive way. Given the foregoing circumstances, the doctrine raised by Davis does not control. We may proceed to substantively address that which neither party did previously. Former Member and Business Records Next, Highland is a limited liability company. Furthermore, no one disputes that Davis was one of two original members. Nor do the litigants dispute that he relinquished his interest in the company in 2005. Davis, 2016 Tex. App. LEXIS 3138, at *1. Furthermore, Davis requested of Highland various business records developed by the company while he was a member. Id. It apparently provided some but not others, and Davis sued to obtain those that were not given him. Highland moved for summary 3 judgment, contending that, as an ex-member of the business, he had no right to them. The sole issue before us involves the right, if any, of a former member of a limited liability company to business records of the company. That is, can he be denied access simply because he is not a current member of the company? Per § 101.502(a) of the Texas Business Organizations Code, a “member of a limited liability company or an assignee of a membership interest . . . or a representative of the member or assignee, on written request and for a proper purpose, may examine and copy at any reasonable time and at the member’s or assignee’s expense . . . [both] records required under Sections 3.151 and 101.501 . . . and . . . other information regarding the business, affairs, and financial condition of the company that is reasonable for the person to examine and copy.” TEX. BUS. ORGS. CODE ANN. § 101.502(a)(1), (2) (West 2012) (emphasis added); Davis, 2016 Tex. App. LEXIS 3138, at *2. Section 3.153 of the same Code further provides that “[e]ach owner or member . . . may examine the books and records of the filing entity maintained under Section 3.151 and other books and records . . . to the extent provided by the governing documents of the entity and the title of this code governing the filing entity.” TEX. BUS. ORGS. CODE ANN. § 3.153 (West 2012); Davis, 2016 Tex. App. LEXIS 3138, at *2. The same Code also defines a “member” of a limited liability company as “a person who is a member or has been admitted as a member in the limited liability company under its governing documents.” TEX. BUS. ORGS. CODE ANN. § 1.002(53)(A) (emphasis added).2 2When used in reference to a limited liability company, “owner” is defined as “a member.” TEX. BUS. ORGS. CODE ANN. § 1.002(63)(C) (West Supp. 2018). 4  As can be seen from these provisions, the right to peruse the business records of a limited liability company is generally dependent upon membership in or being a “member” of the company. Furthermore, one is such a “member” if he “is a member” or “has been admitted as a member” under the company’s governing documents. One recalling lessons from high school English classes would interpret the phrase “is a member” as denoting a present verb tense, that is, a verb tense requiring the person to be an existing member of the company. Davis does not fall within that category given his relinquishment of his interest in Highland years ago. The debate here focuses upon whether the phrase “has been admitted as a member” encompasses a person who once was but no longer is a member. Davis says “yes,” while Highland says “no.” Again, harkening back to high school English would lead one to categorize “has been” as the present perfect tense of the verb “to be.” Additionally, the present perfect tense of a verb is susceptible to use in several different situations. It could refer to a past action that continues. For instance, the sentence “she has gone to the store” denotes the departure of a person who remains absent. In this sense, “has been admitted as a member” of a limited liability company could mean that the person was admitted sometime in the past and remains a member. Present perfect tense may also describe a past action that simply occurred at some time or another without continuing effect. For example, let us envision Jim, Jack, and Joe talking over a cup of coffee. Let us also picture Jim asking Jack if Joe ever lost his car keys. Jack may answer: “Yes, Joe has lost his car keys.” In so replying, Jack is not suggesting that Joe’s keys remain lost, but only that he lost them in the past at some time or another. In that sense, “has been admitted as a member” of a limited liability company 5 could mean that the person was admitted at some time or another in the past without requiring that his status as a member continues. Highland would have us adopt the former reading of “has been admitted as a member” and thereby require continuing membership when the request for records is made. Yet, our doing so would lead us to violate a rule of statutory construction. That rule obligates us to afford meaning to each word of a statute. See In re Office of the Att’y Gen., 422 S.W.3d 623, 629 (Tex. 2013) (orig. proceeding). To the extent that the legislature here incorporated the phrases “is a member” and “has been admitted as a member” into the meaning of “member” then each passage must be given effect. Highland’s interpretation does not do that. If “has been admitted as a member” requires that membership continue, as Highland suggests, then that is little more than saying the person “is a member” of the entity. The first category of the definition provided in § 1.002(53)(A) would engulf the second. The word “member,” in that scenario, would be “a person who is a member or has been admitted as a member [and is a member].” In other words, the member would have to be a member or someone who is a member because he was admitted as a member. Confusing? It certainly is. In either scenario, he would be a member, and we would be left to wonder why the legislature would define “member” as “a member” of the company and “a member” of the company because he was admitted to the company as a member. In effect, our adopting Highland’s suggestion would render the passage “has been admitted as a member” redundant. That we cannot do under In re Office of the Attorney General. 6  Instead, we give the passage meaning by treating it in the present perfect tense referring to an action or event that occurred at one time but is not necessarily continuing. This would result in defining “member” as encompassing both one who “is a member” and one who once was admitted as a member at some time or another but who no longer is such. Indeed, the words “has been admitted as a member” literally encompass as much, and “[w]e take the Legislature at its word.” In re Office of the Att’y Gen., 422 S.W.3d at 629. The text is unambiguous and, therefore, determinative. See id. (stating that “[b]ecause the statute itself is what constitutes the law, we have held that unambiguous text equals determinative text” barring absurdity). Nor would it be absurd to so construe § 1.002(53)(A). It does not open the door to past members of a limited liability corporation being able to obtain whatever record the company may have irrespective of the time the record was developed. Rather, the legislature curtailed that likelihood by inserting into § 101.502(a) certain restrictive language. It imposed upon the member requesting documents to do so “for a proper purpose.” TEX. BUS. ORGS. CODE ANN. § 101.502(a). That means the past member would have to show a “proper purpose” for requesting business records unrelated to his tenure as a member; he cannot have them just because he wants them.3 We further note another consideration supporting our construction of § 1.002(53)(A). Section 101.054 of the Code describes instances when the limited liability company’s governing document may deviate from statutory edict. Subsection 3 While Highland’s brief can be read as raising the specter of “proper purpose” and whether Davis mentioned one, that was not a ground upon which it sought summary judgment. Being omitted from the motion, we cannot use it as a basis to affirm. See State Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex. 2010) (“Summary judgment may not be affirmed on appeal on a ground not presented to the trial court in the motion.”). 7 101.054 prohibits that document or “company agreement” from “unreasonably restrict[ing] a person’s right of access to records and information under Section 101.052.” Id. § 101.054(e) (West Supp. 2018) (emphasis added). The passage denotes a legislative desire to forgo undue or excessive restriction on rights of access. If we were to adopt Highland’s position, then no past member of the company could obtain its business records even if that ex-member had a “proper purpose” for seeking them.4 It would not take much to perceive an utter prohibition to those records as an unreasonable restriction. To that we observe the use of the word “person” in § 101.054(e), as opposed to “member.” The definition of same provided us in the Business Organizations Code comprises a category of individuals and entities much larger than mere “members” of the LLC. See TEX. BUS. ORGS. CODE ANN., § 1.002 (69-b) (West Supp. 2018) (defining “person” as meaning “an individual or a corporation, partnership, limited liability company, business trust, trust, association, or other organization, estate, government or governmental subdivision or agency, or other legal entity, or a series of a domestic limited liability company or foreign entity”). Using such an expansive term in place of the more restrictive 4 Indeed, a potential proper purpose for an ex-member retaining some right to access corporate records is exemplified in one of the statutes cited by the dissent. It mentions that a portion of § 101.111 of the Business Organizations Code would be made redundant if the definition of members were to include those admitted at one time or another under the agreement but who had assigned their interest to another. The provision in question, § 101.111(a) provides that an assignor remains a member until the assignee becomes a member. TEX. BUS. ORGS. CODE ANN. § 101.111(a) (West 2012). “If . . . former members remain members . . . that provision is unnecessary,” according to the dissent. Yet, per subparagraph (b), that same assignor “is not released from the assignor’s liability to the company, regardless of whether the assignee of the membership interest becomes a member of the company.” Id. § 101.111(b). As can be seen, ex- members may have certain continuing liabilities to the company. If Highland’s (and the dissent’s) position were adopted, then that ex-member could not obtain documents or records relevant to that liability or its extent. We question whether it would be farfetched to envision a scenario where current management of a LLC tells the ex-member: “our calculations indicate you owe the LLC X dollars and you have no right to look at the business records to check our math.” Experience indicates that such is a possibility, if not probability, when a business relationship ends in acrimony sometimes reminiscent of a divorce. It may well be that Highland was right when positing at oral argument that the ex-member could always obtain needed business records via the initiation of legal proceedings. Our interpretation of an ex-member’s right to business documents relegates the judicial option to the end position of options available. The interpretation of Highland and the dissent makes it the first. 8 “member” or “members” tends to suggest a legislative intent favoring a grant of access to more than just current members of the LLC. The dissent characterizes our opinion here as “a ‘once a member, always a member’ concept” and concludes that such a concept “is foreign to our state’s LLC statute and runs directly contrary to many of its provisions.” Yet, how foreign is it when 1) practitioners opine that the company is required to provide “Members and former Members access to the Company’s books and records pursuant to § 3.151, 3.152, and 3.153” of the Business Organizations Code, e.g. Frank Z. Ruttenberg, Formation and Governance Issues in Company Agreements, State Bar of Tex. Prof. Dev. Program, 14th Annual Choice, Governance & Acquisition of Entities Course ch. 2.2, at 34 (2016), or 2) the same statute expressly states that “[a] member of a limited liability company may not withdraw or be expelled from the company.” TEX. BUS. ORGS. CODE ANN. § 101.107 (emphasis added).5 We do not purport to generally say that once an entity or person becomes a member it is always a member for all purposes as the dissent insinuates and irrespective of whatever the legislature may have meant when stating that a member may not withdraw. No doubt, certain ties remain, as exemplified in § 101.111(b) when addressing a member’s continued liability to the company upon assignment of the member’s interest. Our opinion simply recognizes and addresses the continuation of one such limited tie when it comes to those who relinquished their interest in the company yet seek access to business records for a proper purpose. 5Section 101.107 of the Code invokes images of Michael Corleone’s frustration when saying “[j]ust when I thought I was out, they pull me back in!” The Godfather, Part III (1990). 9  Years ago, a famed rock and roll band sang, “I’m just a soul whose intentions are good. Oh Lord, please don’t let me be misunderstood.”6 No doubt the intentions of the Texas legislature were good in enacting the statutes at play here, and we endeavor to not misunderstand what they were. Yet, the juxtaposition of words within a statute do not always result in clarity. Should our disposition of this appeal fall short of capturing what the legislature intended, we would welcome its clarification of the matter.7 Until it or higher authority intercedes, though, our reading of the relevant statutes controls the dispute between Davis and Highland. And, our reading leads us to conclude that a former member of a limited liability company is not prohibited from accessing business records of the company for a proper purpose simply because he is not a member at the time of the request. No one is free to read into our decision more than what is there. We do not intend it to cover more than the specific topic broached by Davis and Highland in this appeal. Nor may either party construe it as mandating that Davis must be afforded the records he seeks; the relevant statutes impose other criteria that must be satisfied, such as a proper purpose underlying the request. Because the trial court erred in granting summary judgment upon the limited ground posed by Highland, we reverse it and remand the cause. Brian Quinn Chief Justice 6 THE ANIMALS, Don’t Let Me Be Misunderstood, on ANIMAL TRACKS (American version) (MGM Sept. 1965). 7 To that extent, we welcome a dissent here which may bring with it an enhanced likelihood of garnering intervention and clarification by our Supreme Court. 10 

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 110,061 STATE OF KANSAS, Appellee, v. SHELBERT L. SMITH, Appellant. SYLLABUS BY THE COURT 1. The factual findings underlying a trial court's ruling on a motion to appeal out of time pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), are reviewed for substantial competent evidence, while the legal determinations are reviewed de novo. 2. Appellate courts in Kansas have declined to find a constitutional right to appeal and generally exercise jurisdiction only where an appeal conforms to the applicable statutes. 3. The court in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), created judicial exceptions to the general rule barring untimely appeals. Under those exceptions, an untimely appeal may be allowed when: (1) the defendant was not informed of his or her right to appeal; (2) the defendant was not furnished an attorney to pursue the appeal; or (3) the defendant was furnished an attorney who failed to perfect the appeal. 1 4. Under the third exception in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), the defendant must establish that: (1) he or she told counsel to appeal, but the attorney failed to file or perfect the appeal; and, (2) he or she would have timely appealed, but for counsel's failure. The lapse of time between the defendant's directive to counsel to file an appeal and defendant's attempt to use the third Ortiz exception to file an out-of-time appeal, standing alone, is not a threshold bar to the untimely appeal as a matter of law. Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Opinion filed August 5, 2016. Reversed and remanded with directions. Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant. Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee. The opinion of the court was delivered by JOHNSON, J.: Shelbert Smith appeals the district court's denial of his motion to file a direct appeal out of time. He argues that he should be allowed an untimely appeal because his appointed trial counsel failed to file the appeal that Smith requested. Because this case is presented to us without adequate factual findings, we remand to the district court to make the requisite findings pursuant to the framework described in this opinion. FACTUAL AND PROCEDURAL OVERVIEW Smith was convicted as an adult in 1993, after pleading nolo contendere to first- degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a 2 firearm by a minor. At the time, Smith was 16 years old. The district court sentenced Smith to life sentences for the murder and aggravated kidnapping convictions, 10 years to life for the aggravated robbery conviction, and 30 days in jail for the firearms conviction, all to run consecutively. Smith asserts that he told his appointed counsel, Max Opperman, immediately after sentencing that he wanted to file an appeal but that his attorney had advised him to wait until the district court ruled on a motion to modify his sentence before appealing. Under a procedure available at the time, commonly called the 120-day callback, a court could modify a sentence within 120 days of sentencing in certain circumstances. See K.S.A. 21-4603(d)(1) [then K.S.A. 1992 Supp. 21-4603(4)(a)]. In other words, a successful sentence modification on a callback motion might change the necessity for or character of an appeal of the original sentence. Smith's attorney did file a modification motion. But after the district court overruled the motion on March 3, 1994, counsel never filed a direct appeal of Smith's sentence. Nearly 2 decades later, on May 1, 2013, Smith filed a pro se notice of appeal, a motion for an out-of-time appeal, and a motion for appointed counsel. Subsequently, his appointed counsel filed a docketing statement. See K.S.A. 2015 Supp. 22-3601(b)(3). This court ordered Smith to show cause why the untimely appeal should not be dismissed for lack of jurisdiction, and Smith responded that he should be allowed to appeal out of time under one of the exceptions in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). This court remanded to the district court to rule on Smith's motion for an out-of-time appeal, which would include an Ortiz hearing if necessary. 3  At the district court hearing, the only evidence presented was Smith's testimony that, immediately after he was sentenced, he told Opperman that he wanted to appeal, but that Opperman had told Smith to wait for the result of the 120-day callback procedure. Smith said he never heard from Opperman after the 120-day callback period ended, despite persistent attempts to contact him. Smith said he called Opperman's office, two to three times per day, for most of 1994 but was unable to reach him. Smith said his mother also attempted to contact Opperman and was likewise unsuccessful. Smith said he eventually gave up because he "was in limbo" and did not know what to do, until 19 years later when he found someone at the Hutchinson Correctional Facility who helped Smith with his appeal. Opperman died in 2009. Therefore, the State was unable to present trial counsel's testimony. The State presented no other evidence but argued that based on the Kansas Court of Appeals decision in State v. Cole, No. 105,745, 2012 WL 1649886 (Kan. App. 2012) (unpublished opinion), rev. denied 296 Kan. 1131 (2013), Smith had waived his right to bring an untimely appeal by waiting so long. The district court denied Smith's motion. The district court did not make any findings of fact as to whether Smith had told Opperman to file an appeal, other than to say, "Well, we have the statement of the defendant somewhat to that effect." Rather, the district court relied on the Cole decision to find that the passage of time was a bar to Smith's appeal, stating: "But the thing that the Court cannot get over is the fact that the defendant waited all these years and said absolutely nothing, did absolutely nothing. "In light of the decision of the Court [of Appeals] in State versus Cole, the [Kansas] Supreme Court would not be receptive. This Court cannot be receptive." 4  Smith timely appealed the district court's ruling. THE PASSAGE OF TIME AS A WAIVER OF AN ORTIZ EXCEPTION Smith argues that he should be allowed to bring his direct appeal out of time, pursuant to Ortiz, because his attorney did not file an appeal despite Smith's direction to do so, and Smith would have timely taken an appeal but for his counsel's nonperformance. The State argues that the lapse of time between sentencing and Smith's notice of appeal precludes review because, by letting the matter rest, Smith waived his right to an appeal. Standard of Review This court exercises unlimited review over the issue of appellate jurisdiction. State v. Scoville, 286 Kan. 800, 803, 188 P.3d 959 (2008). The factual findings underlying a trial court's ruling in an Ortiz hearing are reviewed for substantial competent evidence, while the legal determinations are reviewed de novo. State v. Gill, 287 Kan. 289, 293, 196 P.3d 369 (2008). Analysis Appellate courts in Kansas have declined to find a constitutional right to appeal and generally exercise jurisdiction only where an appeal conforms to the applicable statutes. 287 Kan. at 293-94. Crimes committed before July 1, 1993, were required to be appealed within "10 days after the expiration of the district court's power to modify the sentence." K.S.A. 22-3608(a). For sentences imposed under K.S.A. 21-4603(d)(1), the district court could modify the sentence within 120 days (the 120-day callback). Effectively, then, Smith had 130 days from the date of sentencing in which to appeal his sentence. 5  There is no question that Smith's appeal was filed past the statutory deadline and that the general rule would result in its dismissal. See Albright v. State, 292 Kan. 193, 197, 251 P.3d 52 (2011). But Ortiz created judicial exceptions to the general rule barring untimely appeals. Under those exceptions, an untimely appeal may be allowed when: (1) the defendant was not informed of his or her right to appeal; (2) the defendant was not furnished an attorney to pursue the appeal; or (3) the defendant was furnished an attorney who failed to perfect the appeal. State v. Patton, 287 Kan. 200, 206, 195 P.3d 753 (2008) (citing Ortiz, 230 Kan. at 735-36). In Patton, this court developed rules for each of the Ortiz exceptions. 287 Kan. at 219-24. In so doing, Patton emphasized that the general rule barring untimely appeals was still exactly that—the general rule, and that the Ortiz exceptions were "narrowly defined" and reserved for "truly exceptional circumstances." Patton, 287 Kan. at 217. Patton recognized the second and third Ortiz exceptions are rooted in the concepts of fundamental fairness and the Sixth Amendment right to counsel. Patton, 287 Kan. at 218-19. Effectiveness of counsel is generally analyzed by the two-prong analysis of performance and prejudice set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Patton, 287 Kan. at 224. A defendant must first establish that counsel's performance was deficient, and second, that counsel's performance prejudiced the defense. 287 Kan. at 224. But the Patton court held that under the third Ortiz exception, when counsel's deficient performance results in the forfeiture of a proceeding, e.g., the right to an appeal process, the Strickland analysis is modified by Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000): "Under Flores-Ortega, if appointed or retained counsel has failed to file or perfect a direct appeal by a criminal defendant, we will presume the existence of 6  prejudice. This is not, however, the same as a finding of prejudice per se, requiring application of the third Ortiz exception. The defendant must still demonstrate that, but for counsel's failure, he or she would have taken a timely direct appeal. The defendant need not show, as he or she would have had to show if we were using the Strickland standard as our benchmark, that such a timely direct appeal would have been successful. [Citation omitted.]" Patton, 287 Kan. at 225. Here, Smith asserts that he falls under the third Ortiz exception because he told his attorney he wanted to appeal immediately after sentencing and because he unsuccessfully attempted to contact his attorney about proceeding with an appeal on numerous occasions during the year following the expiration of the 120-day callback period, but that his attorney failed to file the requested appeal. Had his attorney filed an appeal, Smith claims that he would have pursued it. In response, the State argued, and the district court agreed, that Smith had waived his right to appeal because he "let the matter rest" by waiting so many years to attempt to proceed with the appeal pro se. The district court relied on Cole, where a panel of the Court of Appeals said whether the defendant "let the matter rest" was a threshold requirement a defendant must overcome in order to assert an Ortiz exception, and a failure to timely assert an Ortiz exception could be considered a waiver of that right. Cole, 2012 WL 1649886, at *2. In effect, Cole said that a defendant may not make an untimely request to be allowed to make an untimely appeal. Cole's threshold requirement that a defendant must establish that he or she had not "let the matter rest" as a condition precedent to establishing an Ortiz exception was apparently crafted from the following language in Ortiz: "'A defendant properly informed of his appellate rights may not "let the matter rest," Worts v. Dutton, 395 F.2d 341, 344 (5th Cir. 1968), and then claim that he did not waive 7  his right to appeal.'" Ortiz, 230 Kan. at 736 (quoting Norris v. Wainwright, 588 F.2d 130, 137 [5th Cir. 1979]). The quoted Fifth Circuit opinion, Norris v. Wainwright, 588 F.2d 130 (5th Cir. 1979), involved a different factual scenario. There, the defendant had been properly informed of his appellate rights, but he did not direct his attorney to file an appeal. In other words, the defendant made no contemporaneous attempt to invoke the right to appeal which he had been told that he had. Here, the actions that Smith alleges that he took during the year after he was properly informed of his appellate rights do not comport with the Norris notion of letting the matter rest. Smith's immediate directive to his attorney to appeal the sentence imposed is the antithesis of waiving his right to appeal; rather, it was an invocation of his right to appeal contemporaneous with being advised of that right. Perhaps a more accurate description of the district court's holding in this case would be that Smith's suspension of his efforts to enforce his right to appeal for 19 years constituted an abandonment of his right to appeal, as a matter of law. But requiring a defendant to establish the timeliness of his or her attempt to invoke the third Ortiz exception adds a step to the proper analysis set forth in Patton, to-wit: (1) Whether the defendant told his or her counsel to appeal, but the attorney failed to file or perfect the appeal; and, (2) if so, the defendant will enjoy a presumption of prejudice but must show that he or she would have timely appealed, but for counsel's failure. Patton, 287 Kan. at 225. Patton discussed the "let the matter rest" concept, but as a factor in the Flores- Ortega two-prong performance and prejudice analysis. Patton, 287 Kan. at 225. The court found that Patton had not "let the matter rest," based on evidence in the record that showed Patton desired to pursue an appeal and had been attempting to do so, but for his counsel's nonperformance. 287 Kan. at 225. In other words, as in Patton, Smith's dilatory 8 conduct might be relevant to the credibility of his claim that he told his attorney to appeal or his claim that he would have proceeded with an appeal if his attorney had not failed him. But the lapse of time between Smith telling his attorney to appeal and Smith's attempt to use the third Ortiz exception to file an out-of-time appeal, standing alone, was not a threshold bar to the untimely appeal as a matter of law. But cf. Gill, 287 Kan. at 296-97 (found 8-year delay while attempting to effect appeal warranted denial of out-of- time appeal, but declined to "suggest[] any bright-line temporal rules"). Because the district court found the appeal time-barred, it did not conduct a Patton analysis. Thus, the district court did not make the requisite factual findings that would support the claimed third Ortiz exception. Moreover, the cold record before us only contains Smith's testimony. Whether this evidence is sufficient to meet Smith's burden relies in part on its credibility. A witness' credibility is a determination for the district court to make. See State v. Wilkerson, 278 Kan. 147, 156, 91 P.3d 1181 (2004) ("It is not this court's function to weigh witness credibility."); Barger v. United States, 204 F.3d 1180, 1182 (8th Cir. 2000) ("A bare assertion by the petitioner that she made a request [for counsel to file appeal] is not by itself sufficient to support a grant of relief, if evidence that the fact-finder finds to be more credible indicates the contrary proposition."). Accordingly, we are compelled to send this back to the district court once again for the express purpose of determining whether Smith's testimony is credible, i.e., whether he told his attorney to appeal, whether the attorney did not file an appeal, and whether Smith would have appealed if his attorney had not failed to perform. If Smith's testimony is credible, he has established deficient performance under Flores-Ortega. See Albright, 292 Kan. at 211. A lawyer who disregards specific instructions to file a notice of appeal has acted in a professionally unreasonable manner, and the defendant is entitled to a new appeal without a showing that the appeal would have been successful. 292 Kan. 9 at 209-10 (quoting Flores-Ortega, 528 U.S. at 477). In that event, Smith will be permitted to appeal out of time. Reversed and remanded with directions. 10 

203 P.3d 1281 (2009) STATE v. SHORT. No. 99615. Court of Appeals of Kansas. April 3, 2009. Decision without published opinion. Affirmed.

212 F.Supp. 861 (1963) Maria SPANOS, Plaintiff, v. UNITED STATES of America, Defendant. Civ. A. No. 13509. United States District Court D. Maryland. January 8, 1963. Irving Shulbank, Baltimore, Md. (Donald N. Rothman and Gordon, Feinblatt & Rothman, Baltimore, Md., on the brief), for plaintiff. John M. Hammerman, Atty., Dept. of Justice, Washington, D. C. (Joseph D. Tydings, U. S. Atty., Baltimore, Md., Louis F. Oberdorfer, Asst. Atty. Gen., Edward S. Smith and Donald A. Wilson, Jr., Attys., Dept. of Justice, Washington, D. C., of counsel), for defendant. WINTER, District Judge. After her husband's fraudulent late filing of a joint return, and after her husband's death, can a spouse, who has no income but who joined her husband in filing a joint return, disavow the filing of the joint return so that liability for the entire tax is visited solely upon her deceased husband's estate? If not, can she, since the fraud was solely that of her husband, escape liability for the interest and penalty on the amount due? These questions are raised by the following agreed facts: FACTS: The taxpayer's husband, who died September 25, 1956, fraudulently failed to file a federal income tax return for the taxable year 1955 on the day that the return was due—April 15, 1956. On July 2, 1956, there was filed a joint return, signed by both the taxpayer and her husband, for the calendar year 1955, which disclosed an income tax liability of $6,635.96. After audit, the return was accepted as filed, without change. Since no payment accompanied the return, a deficiency was assessed for the liability disclosed on the face of the return, plus interest and penalties, totalling $5,589.94, the principal item of the latter sum being the fraud penalty imposed because of the husband's fraudulent failure to file a timely tax return. Taxpayer paid the deficiency of $12,225.90 on May 3, 1960, and has sued *862 for a refund. It is agreed that interest was overpaid in the amount of $43.61. During the taxable year in question, taxpayer had no income of her own and taxpayer was innocent of her husband's fraudulent failure to file a federal income tax return for the taxable year 1955 when it was due. DISCUSSION AND OPINION: The right to file a joint income tax return is conferred by section 6013 of the Internal Revenue Code of 1954, 26 U.S.C.A. (1958 Ed.) § 6013, the pertinent portion of which is set forth below.[1] Other provisions of § 6013 limit the right of taxpayers to elect to file a joint return after having first filed separate returns. The taxpayer, in reliance upon Grobart v. Commissioner, 20 T.C.M. 629 (1961), and Mundy v. Commissioner, 14 T.C.M. 1067 (1955), and a case cited in the former, Grant v. Rose, 24 F.2d 115 (D.C.N.D.Ga.1928), aff'd. Rose v. Grant, 39 F.2d 340 (5 Cir. 1930), argues that, by a proper construction of § 6013, the determination to file a joint return could not legally be made after the due date of the return—in this case April 15, 1956 —so that the purported election made by the filing of the joint return on July 2, 1956 was a nullity. As a consequence, taxpayer argues that the deficiency, including interest and penalty, should have been assessed against her deceased husband's estate on the basis of a separate return filed by him. First, it should be noted that a reading of the quoted portion of § 6013, as, indeed, a reading of the section in its entirety, although indicating the situations where a joint return is available to spouses, does not state when the election to file a joint return in the first instance must be made or, if made, when it becomes binding on the taxpayer. The absence of such language is of great significance when other limitations on the filing of a joint return have been carefully stated in this section, because it is obvious that where Congress desired to withhold the privilege, it did so specifically. Nor do the cases cited by the taxpayer support this result. In the Grobart case no returns were ever filed for the years 1948 and 1949 and the wife of the taxpayer had no income for those years. In 1957 the Internal Revenue Service asserted a deficiency on the basis of a single return and, after the deficiency was assessed, after Grobart had filed a petition *863 for review in the Tax Court, after the case was docketed, and after the Internal Revenue Service had prepared substitute returns for Grobart on an individual basis, Grobart and his wife, on April 30, 1959, attempted to file joint income tax returns for 1948 and 1949. It was held (20 T.C.M. p. 640), "since petitioner, together with his wife, did not timely file joint income tax returns for the years 1948 and 1949, he is not entitled to the split income features of section 12(d) in the tax computation for the years 1948 and 1949."[2] To reach this result in the Grobart case, there was cited, with approval, certain language of the District Court in Grant v. Rose, supra, wherein the District Judge pointed out that (24 F.2d p. 118): "There is nothing in the law to prohibit the choice of joint or separate returns according to the result on the taxes to be paid, although husband and wife actually have kept their affairs entirely separate. On the other hand, there is nothing in the act to extend the right of choice beyond the time for making the returns. It is not unreasonable to claim a right to substitute one form of return for the other up to the last day for making returns, but, after that, and especially after the returns have been reviewed and assessments made, there are strong administrative reasons for not permitting the upsetting of the whole basis of calculation." The statement was made in the context of facts, which showed that the taxpayers had elected to file a joint return and, thereafter, beyond the due date of the return, and without any extension of time or permission so to do, attempted to revoke their election and to file separate returns. On appeal, the Grant case was affirmed. It is perhaps significant that the Circuit Court of Appeals was more guarded in its statement than the District Court, in that it eliminated any reference to when the right of choice must be exercised, and affirmed the lower court, for the reason that (39 F.2d p. 341): "The husband and wife having made a single joint return within the time prescribed by law, the Commissioner was fully justified in declining to accept the separate returns made contrary to the ruling above quoted [a 1922 Commissioner's ruling denying the right to file an amended return changing the basis from joint to separate or vice versa] and long after the time prescribed by the statute." The Mundy case fits the same pattern. There the taxpayer had filed no return and the Commissioner had assessed a deficiency on the basis of a joint return. The wife, however, contested her liability. During the course of the proceeding, the government amended, asserting a new deficiency assessment on an individual return basis. The taxpayer, however, continued to contend that the deficiency should have been computed on the basis of a joint return. The contention received summary treatment in the statement that husband and wife may elect to file a joint return, but (14 T.C.M. p. 1072), "That determination must be exercised by the taxpayers at the time the return if [sic] filed." Notwithstanding the apparent implication of some of the language they employ, these three cases, on their facts, do not constitute judicial construction of § 6013 and its predecessor sections, which would supply a limitation not written into the Act by Congress that in no event may taxpayers elect, after the due date of a return, to file a joint return. Rather, the cases introduce into *864 § 6013 the principle, founded upon equitable considerations, that if an election has been made and acted upon by the Commissioner, or if, as the result of a failure to file a return, the Commissioner has been required to make an election for the taxpayers (or change an election due to a spouse's valid nonacquiescence), that election may not thereafter be altered. Viewed in the light of the principle that the mere late filing of a return does not nullify it, United States v. De Hardit, 120 F.Supp. 110, 114 (D.C.E.D. Va.1954), aff'd. 224 F.2d 673 (4 Cir., 1955), cert. den. 350 U.S. 863, 76 S.Ct. 105, 100 L.Ed. 765,[3] the cases cited by taxpayer are adverse to her position here, because the taxpayer and her husband elected to file a joint return on July 2, 1956, and that return was accepted and acted upon by the Commissioner. Equitable considerations, as well as the administrative problems of the converse result, indicate that that election is binding on her and may not now be modified. If not permitted to disavow the joint return on the ground that the election to file the joint return was a legal impossibility, the taxpayer next argues that where she received no income in her own right subject to tax, she should be excused from the payment of interest and penalty arising out of what was admittedly solely her husband's fraud. Legally and equitably, this argument is without merit. The so-called fraud penalty is, by the language of 26 U.S.C.A. (1958 Ed.) § 6653, an amount "* * * added to the tax * * * equal to 50 percent of the underpayment," as is interest which, by the language of 26 U.S.C.A. (1958 Ed.) § 6654(a), is also "added to the tax * * * at the rate of 6 percent per annum upon the amount of the underpayment." Thus, both penalty and interest become a part of the tax. As to the tax generally, 26 U.S. C.A. (1958 Ed.) § 6013(d) provides that, "if a joint return is made, the tax shall be computed on the aggregate income and the liability with respect to the tax shall be joint and several." (Emphasis supplied) The Courts of Appeals, which have had occasion to consider the question, have rejected the plea of an innocent spouse who joined in the filing of a joint return, to be relieved of the fraud of a husband, Ginsberg's Estate v. C. I. R., 271 F.2d 511 (5 Cir. 1959); Boyett v. Commissioner of Internal Revenue, 204 F.2d 205 (5 Cir. 1953); Prokop v. Commissioner of Internal Revenue, 254 F.2d 544 (7 Cir. 1958); Furnish v. C. I. R., 262 F.2d 727 (9 Cir. 1958); Kann v. Commissioner, 210 F.2d 247 (3 Cir. 1953); cert. den. 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1109 (1954), see also, Howell v. Commissioner of Internal Revenue, 175 F.2d 240 (6 Cir. 1949). These cases have proceeded on the theory that the penalty for fraud and interest are additions to the tax and, in the case of a joint return, liability for the tax is joint and several, irrespective of the fact that one spouse has neither gross income nor deductions. Of particular significance is the Ginsberg's Estate case where, as in the case at bar, the surviving spouse was innocent of fraud, but, nevertheless, was held liable for the fraud penalty. There is only one authority to the contrary, Cirillo v. Commissioner, 20 T.C.M. 956 (1961). That case attempts to distinguish, unsuccessfully to me, the authorities above cited, on the ground that they involved joint returns timely filed. 26 U.S.C.A. § 6013(d), supra, fails to provide a ground for such distinction, and the legislative history of the joint and several liability on joint returns aspect of the Internal Revenue Act of *865 1938, the predecessor of § 6013(d), fails to support any such contention.[4] The Cirillo case is the subject of petitions for review of the decision of the Tax Court of the United States, filed by the taxpayers and the Commissioner, and has been argued, and is awaiting decision, in the United States Court of Appeals for the Third Circuit (No. 13,902). Comparison of the memorandum opinion of the Tax Court with the decisions of the Courts of Appeals of the other circuits, including the decision of the Third Circuit in Kann v. Commissioner, supra, indicates no need to delay the decision in the case at bar for the filing of an opinion by the United States Court of Appeals for the Third Circuit. When viewed on equitable grounds, the taxpayer's contention is also lacking in merit. During her husband's lifetime, it was to the advantage of the taxpayer to join with him in filing a joint return, so as to achieve a splitting of income, a consequent reduction in tax due, and a lesser diminution of assets and income from which her support was derived. It must be noted that, by a splitting of income, there is a consequent reduction in penalty and interest due, since both are computed on the basis of the initial tax. Having sought to avail herself of these advantages, the taxpayer may not complain of their consequences solely on the basis of the intervening death of her husband. JUDGMENT: Judgment will be entered for the taxpayer for $43.61, the amount of the stipulated overpayment of interest. NOTES [1] "§ 6013. Joint returns of income tax by husband and wife "(a) Joint returns.—A husband and wife may make a single return jointly of income taxes under subtitle A, even though one of the spouses has neither gross income nor deductions, except as provided below: "(1) no joint return shall be made if either the husband or wife at any time during the taxable year is a nonresident alien; "(2) no joint return shall be made if the husband and wife have different taxable years; except that if such taxable years begin on the same day and end on different days because of the death of either or both, then the joint return may be made with respect to the taxable year of each. The above exception shall not apply if the surviving spouse remarries before the close of his taxable year, nor if the taxable year of either spouse is a fractional part of a year under section 443(a) (1); "(3) in the case of death of one spouse or both spouses the joint return with respect to the decedent may be made only by his executor or administrator; except that in the case of the death of one spouse the joint return may be made by the surviving spouse with respect to both himself and the decedent if no return for the taxable year has been made by the decedent, no executor or administrator has been appointed, and no executor or administrator is appointed before the last day prescribed by law for filing the return of the surviving spouse. If an executor or administrator of the decedent is appointed after the making of the joint return by the surviving spouse, the executor or administrator may disaffirm such joint return by making, within 1 year after the last day prescribed by law for filing the return of the surviving spouse, a separate return for the taxable year of the decedent with respect to which the joint return was made, in which case the return made by the survivor shall constitute the separate return." [2] The Grobart case arose under the Internal Revenue Code of 1939. The provisions of the statute with regard to the filing of joint returns by husband and wife were substantially the same as those contained in the Internal Revenue Code of 1954. [3] As the Commissioner points out, in the absence of the special factors present in the authorities cited by the taxpayer, administratively the Act has not been construed to bar an initial election made after the due date of a return. As examples, see Grimes v. Commissioner, 20 T.C.M. 1662 (1961); Finnorn v. Commissioner, 19 T.C.M. 87 (1960); Cirillo v. Commissioner, 20 T.C.M. 956 (1961); Williams v. Commissioner, 16 T.C. 893 (1951). [4] H.Rep. No. 1860, 75th Cong., 3rd Sess., pp. 29-30 (1939-1 Cum.Bull. (Part 2) 728, 749): "Section 51(b) of the bill expressly provides that the spouses, who exercise the privilege of filing a joint return, are jointly and severally liable for the tax computed upon their aggregate income. It is necessary, for administrative reasons, that any doubt as to the existence of liability should be set at rest, if the privilege of filing such joint returns is continued." Report of a Subcommittee of the Committee on Ways and Means, House of Representatives, 75th Cong., 3rd Sess., on Proposed Revision of the Revenue Laws, 1938, pp. 49-50: "* * * the Bureau of Internal Revenue has taken the position for many years that the filing of such a return [joint return] by husband and wife creates a joint and several liability on their part for the tax on their aggregate net income; and that deficiencies, penalties, and interest may be collected from either or both of them. "In the opinion of your subcommittee the Bureau's position is sound; and to avoid further confusion and litigation it is recommended * * * that an amendment be inserted in the statute to make it clear that if a husband and wife choose to file a joint return, each of them will be liable for the tax on their aggregate income, and for any deficiencies, penalties, and interest in respect of the joint return which may thereafter be determined." (Emphasis supplied)

353 F.Supp.2d 1310 (2004) WITEX, U.S.A., INC., et al., Plaintiff, v. UNITED STATES, Defendant. SLIP OP. 04-144, Court No. 98-00360. United States Court of International Trade. November 15, 2004. *1311 *1312 Aitken Irvin Berlin & Vrooman, LLP (Bruce Aitken, Bruce de Grazia, and Virginie Lecaillon (consultant)) for the Plaintiff. Neville Peterson LLP (Maria E. Celis and John M. Peterson) for the Amicus Curiae in support of Witex U.S.A, Inc., et al., Congoleum Corporation. Peter D. Keisler, Assistant Attorney General, Barbara S. Williams, Attorney in Charge, International Trade Field Office, Amy M. Rubin, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Yelena Slepak, Attorney, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, for Defendant. OPINION POGUE, Judge. This case involves the proper meaning of the term "tileboard" as used in subheading 4411.19.30 of the Harmonized Tariff Schedule of the United States (1997) ("HTSUS"). Plaintiffs Witex, U.S.A., Inc. and Mannington Mills ("Witex") challenge the United States Customs Service's[1] ("Customs" or "Government") liquidation of its laminated flooring panels ("merchandise" or "flooring panels"), claiming that the merchandise should be liquidated as "tileboard" under heading 4411.19.30, HTSUS, and therefore duty free.[2] The Government avers that Witex's product is not "tileboard" and therefore should be classified under a basket provision for fiberboard with a density greater than 0.8 g/cm,3 and Witex's merchandise should be assessed a duty of 6% ad valorem. See subheading 4411.19.40, HTSUS. Before the Court are cross motions for summary judgment pursuant to USCIT Rule 56. The Court has exclusive jurisdiction over this case. See 28 U.S.C. § 1581(a) (2000). Finding material issues in dispute, the Court denies both motions for summary judgment. *1313 BACKGROUND Witex, U.S.A., Inc. is an importer of laminate panels from its parent, Witex GmbH, a German Corporation. Pl.'s Consol. Compl. ("Compli.") at para. 4(a). Mannington Mills, Inc. is a U.S. company which also imports laminate panels from Witex, GmbH. Pl.'s Consol. Compli. at para. 4(b). This case involves a protest by Witex from 1995 covering one entry,[3] and two protests by Mannington Mills from 1996 covering ten entries.[4] Despite the requirements of USCIT Rule 56, the parties have agreed to few relevant facts. The panels at issue consist of a fiberboard core with a density 0.891 g/cm3, Mem. from Nick Zerebecki, Mannington Mills, to Hao Chen, Mannington Mills, Witex Laminate Products, Ex. 2 to Pl.'s Mem (February 14, 1997) ("Mannington Mem."), Def.'s Statement Additional Material Facts ("Def.'s Statement") at para. 3, and are tongue-and-grooved along their edges and ends.[5] Def.'s Resp. Pl.'s Statement Material Facts at para 1. The tops of the panels are coated with melamine and aluminum oxide, Mannington Mem. at 1, Def.'s Statement at para. 3, and the panels may be used on floors.[6] Pl.'s Mem. at 7 para. 19, Def.'s Statement at para. 1. SUMMARY OF ARGUMENTS Witex argues that its flooring panels are not fiberboard products and therefore cannot be classified under heading 4411, HTSUS. More specifically, Witex argues that fiberboard, by definition, is limited to unfinished products, whereas its merchandise is finished. Pl.'s Mem. at 11-14, Pl.'s Resp. at 4, Pl.'s Reply in Supp. of Mot. for Summ. J. ("Pl.'s Reply") at 4. Alternatively, *1314 Witex asks the Court to consider the arguments made in a companion case, Faus Group, Inc. v. United States, slip op. 04-143 (CIT Nov. 15, 2004), that the flooring panels are properly classified under heading 4418, HTSUS, covering "[b]uilders' joinery and carpentry of wood." Pl.'s Mem. at 25, Pl.'s Resp. at 19-20, Pl.'s Reply at 14-15.[7] If the merchandise is properly classified in heading 4411, HTSUS, Witex claims that it should be classified under subheading 4411.19.30, HTSUS, which covers "[t]ileboard which has been continuously worked along any of its edges and is dedicated for use in the construction of walls, ceilings or other parts of buildings." Pl.'s Mem. at 14-24, Pl.'s Resp. at 6-18, Pl.'s Reply at 1-13. Witex maintains that Customs unduly restricted the scope of subheading 4411.19.30, HTSUS, by requiring that the panels be used on walls. Pl.'s Mem. at 16, Pl.'s Resp. at 7, Pl.'s Reply at 2-3. The Government argues that the merchandise is classifiable under heading 4411, HTSUS. The Government asserts that Witex relies on a commercial definition of fiberboard used in Europe to support its contention that fiberboard can only be unfinished. Def.'s Mem. at 25-26. That European commercial definition, the Government contends, is irrelevant to the classification of products under the HTSUS. Id. In defining "tileboard," the Government points to the legislative history of the "tileboard" provision which includes a letter from J.J. Barker Co. to the Trade Policy Staff Committee seeking a provision for its imports. Def.'s Mem. at 11-13, 18, 20, Def.'s Reply at 8. According to the Government, J.J. Barker Co. had been importing its "tileboard" product duty free under the Tariff Schedule of the United States ("TSUS"), but was facing a 6% ad valorem duty with the transition to the HTSUS. Def.'s Mem. at 11-13; see also subheading 4411.19.40, HTSUS. Therefore, in order to ensure that J.J. Barker's "tileboard" imports did not face an increase in duty, the "tileboard" provision was added. Id. As the Government argues, because Witex's merchandise is not similar to J.J. Barker's "tileboard," Witex's merchandise cannot be considered "tileboard" within the meaning of subheading 4411.19.30, HTSUS. Id. The Government further argues that based on a dictionary definition of "tileboard," Def.'s Mem. at 16, 18, evidence from industry practice, Def.'s Mem. 17, 22, Def.'s Reply at 8-9, and the Government's expert witness, Def.'s Mem. at 21, Witex's panels are not "tileboard" because "tileboard: (i) is not laminated, (ii) is usually embossed with a pattern, and (iii) is coated with an epoxy or other [liquid] finish to resemble ceramic tile," Def.'s Mem. at 20-21 (brackets around "liquid" in original), (iv) is water-resistant, Def.'s Mem. at 17, 19-20, and (v) is only used on walls, Def.'s Mem. at 21. *1315 Accordingly, the Government claims that because Witex's merchandise is laminated, is not embossed, does not look like ceramic tile, Def.'s Mem. at 20, is not water-resistant, Def.'s Mem. at 19-20, and is used as flooring, not wallboard, Def.'s Mem. 14 n. 14, 22, it cannot be "tileboard." Therefore, the Government argues, Witex's product is excluded from subheading 4411.19.30, HTSUS, rendering it classifiable under 4411.19.40, HTSUS, covering "[o]ther" forms of fiberboard with a density of greater than 0.8 g/cm3 which are surfaced coated by more than oil. STANDARD OF REVIEW "The proper scope and meaning of a tariff classification term is a question of law ... while determining whether the goods at issue fall within a particular tariff term as properly construed is a question of fact." Franklin v. United States, 289 F.3d 753, 757 (Fed.Cir.2002) (citations omitted). A Customs' classification ruling is subject to de novo review[8] as to the meaning of the tariff provision, pursuant to 28 U.S.C. § 2640, but may be accorded a "respect proportional to its `power to persuade.'" United States v. Mead, 533 U.S. 218, 235, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). Both parties have moved for summary judgment pursuant to USCIT Rule 56. Summary judgment is only appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." USCIT R. 56(c) (emphasis added). Material issues only arise concerning "facts that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Consequently, in classification cases, genuine issues of material fact only arise when there is a dispute over the use, characteristics, or properties of the merchandise being classified, Brother Int'l Corp. v. United States, 26 CIT ___, ___, 248 F.Supp.2d 1224, 1226 (2002), or where commercial meaning is in question. Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1048 (Fed.Cir.2001). For the reasons set forth below, summary judgment for either party at this point is not warranted. DISCUSSION "The proper classification of merchandise entering the United States is directed by the General Rules of Interpretation (`GRIs') of the HTSUS and the Additional United States Rules of Interpretation." Orlando Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed.Cir.1998). The HTSUS is organized by headings setting forth general categories of merchandise; below each heading are listed subheadings (and then further subdivisions) that more specifically describe products within each heading. Id. According to the GRIs, a Court must choose the most appropriate heading, and then, "[o]nly after determining that a product is classifiable under the heading should the court look to the subheadings to find the correct classification for the merchandise." Id. at 1440 (citing GRI 1, 6, HTSUS). Once the Court chooses the proper heading, the Court is limited to choosing a subheading only from within *1316 the proper heading, i.e., the subheadings appearing under other headings become irrelevant for the classification of the merchandise at issue. Id. Because there is a dispute as to the proper heading, the Court will first determine whether the flooring panels are properly classified under heading 4411, HTSUS. After finding that the merchandise is properly classifiable under heading 4411, HTSUS, the Court will construe subheading 4411.19.30, HTSUS, ultimately concluding that material issues remain to be resolved. I. Choosing the Proper Heading A. Meaning of Fiberboard As required by GRI 1, HTSUS, "classification shall be determined according to the terms of the headings and any relative section or chapter notes...." Heading 4411, HTSUS, covers "[f]iberboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances." Both parties concede that the merchandise is made with a fiberboard core. Pl.'s Statement Undisputed Facts Supp. Pl.'s Mot. Summ. J. at para. 2, Def.'s Statement at para. 1. Fiberboard is defined as "[a] general term that refers to any of various panel products such as particleboard, hardboard, chipboard, or other type formed by bonding wood fibers by heat and pressure." Terms of the Trade 130 (4th ed.2000); see also Webster's II New Riverside University Dictionary 474 (1988) ("[a] building material made of plant fibers, as wood, bonded together and compressed into rigid sheets."). These definitions do not define "fiberboard" by any element of its finish. Witex contends that Customs wrongfully classified its merchandise under heading 4411, HTSUS, because fiberboard includes only unfinished merchandise whereas Witex's merchandise is finished. To support is contention, Witex introduces a letter from the European Producers of Laminate Flooring ("EPLF") stating that "[f]rom an industry perspective ... [l]aminate panelling, which is widely used in the industry for both wall and floor applications, cannot be fibreboard because, by definition, fibreboard is a component of some types of laminate and, at most, can be considered unfinished laminate." Letter from Peter H. Meyer, Managing Director of the European Producers of Laminate Flooring, to Bruce Aitken, Esq., Ex. 12 to Pl.'s Mem. at 12 (Feb. 28, 2002) ("EPLF Letter").[9] Witex also cites the Deposition of Paul Garetto, a National Import Specialist, as saying: "If you asked for fiberboard, if you go to a lumberyard, probably they would direct you to a 4 by 8 sheet of fiberboard, probably unfinished." Dep. Paul Garetto, Ex. 14 to Pl.'s Mem. at 118 (Jan. 15.2004).[10] According to Witex's logic, because "fiberboard" is by definition unfinished, and because Witex's product is finished, the merchandise cannot be "fiberboard." *1317 Pl.'s Mem. at 12-14. Essentially, what Witex's argument boils down to is that there is a commercial meaning of "fiberboard" which precludes the classification of its merchandise under heading 4411, HTSUS. Witex's argument is unpersuasive for two reasons: (1) Witex has failed to establish a commercial meaning for the proposition it seeks; and (2) even if Witex were correct as to the meaning of "fiberboard," Witex reads the word "fiberboard" out of context with the rest of the tariff provision. First, Witex fails to establish a commercial meaning for its merchandise. Witex is correct in claiming that an established commercial meaning prevails over a common meaning unless contrary to Congressional intent. See Maddock v. Magone, 152 U.S. 368, 371, 14 S.Ct. 588, 38 L.Ed. 482 (1894) (citing Cadwalader v. Zeh, 151 U.S. 171, 176, 14 S.Ct. 288, 38 L.Ed. 115 (1894)). However, in order to establish a commercial meaning, the party invoking a commercial meaning has the burden of proving that a term has a commercial meaning that is "definite, uniform, and general throughout the trade," Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed.Cir.1999), and that this "definite, uniform, and general meaning" is used in the United States' trade and commerce, Two Hundred Chests of Tea, 22 U.S. (9 Wheat) 430, 438, 6 L.Ed. 128 (1824) ("Whether a particular article were designated by one name or another, in the country of its origin ... was of no importance in the view of the legislature."), Wing Coffee Co., Ltd. v. United States, 53 Cust.Ct. 60, 63 (1964). Accordingly, "in considering the commercial designation of a tariff term, only commercial use of that term in the United States is relevant." Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1049 (Fed.Cir.2001) (emphasis added). The evidence proffered by Witex fails to meet the burden of proof for establishing a commercial meaning in this case. A letter from a single European trade association, that represents only producers of laminate flooring,[11] does not provide any evidence of a definite, general, and uniform meaning of a term as used in the United States. Nor is Witex's claim supported by the Deposition of Paul Garretto. The Deposition of Paul Garretto merely establishes that if a person asked for fiberboard at a lumberyard, they "probably" would be directed to unfinished fiberboard. This does not constitute evidence that if fiberboard is finished it is no longer fiberboard. Because Witex has failed to adduce any probative evidence for a "definite, uniform, and general" commercial meaning for "fiberboard," the Court is bound by the common meaning of fiberboard as that term appears in heading 4411, HTSUS.[12] Secondly, Witex's reading of heading 4411, HTSUS, is belied by the language of the heading, chapter notes, and the Explanatory Notes. Heading 4411, HTSUS, is an eo nomine provision as it "describes a commodity by a specific name." Am. Hardboard Ass'n v. United States, 12 CIT 714, 715 (1988); see also JVC Co. of Am. v. United States, 234 F.3d *1318 1348, 1352 (Fed.Cir.2000). Because eo nomine "provision[s] include[ ] all forms of the named article unless limited by [their] terms," Am. Hardboard, "[a]n improvement in merchandise provided for eo nomine does not remove it from classification under the eo nomine designation." Arthur J. Humphreys, Inc. v. United States, 973 F.2d 1554, 1556 (1992). Consequently, when an eo nomine provision is used as it is in heading 4411, HTSUS, the tariff term implicitly means fiberboard and products made from fiberboard.[13] Therefore, even if a piece of fiberboard has been further worked beyond its raw form, it still remains classifiable under heading 4411, HTSUS. The drafters of the HTSUS, and Congress, recognized that heading 4411, HTSUS, includes fiberboard products that have been further worked through the inclusion of Chapter Note 4 to Chapter 44 which provides that "[p]roducts of heading 4410, 4411, or 4412 may be worked to form the shapes provided for in respect of articles of heading 4409, curved, corrugated, perforated, cut or formed to shapes other than square or rectangular or submitted to any other operation provided it does not give them the character of articles of other headings." Chapter Note 4 to Chapter 44, HTSUS.[14] Chapter Note 4 admits that fiberboard products transformed beyond their raw character are nonetheless still classifiable under heading 4411, HTSUS, unless subjected to an operation, not among those enumerated, that gives the product the character of an article in another heading. The Explanatory Note to 44.11 further specifies that "[i]mpregnating or other agents may also be added during or after manufacture of the board to give an extra property, e.g., impermeability to water or resistance to rot, insect attack, fire or the spread of flame." Harmonized Commodity Description and Coding System, Explanatory Note 44.11 (2nd ed.1996) at 680 ("Explanatory Notes" or "EN"); cf. Chapter 44, U.S. Note 1(c), HTSUS. Last, the subheadings under heading 4411, HTSUS, include products such as "tileboard," subheading 4411.19.30, HTSUS, and "[l]aminated boards bonded in whole or in part, or impregnated, with synthetic resins," subheading 4411.29.20, HTSUS. Witex's reading of heading 4411, HTSUS, to preclude classification of its laminated paneling therein, would render nugatory the above referenced provisions, in violation of the well-established rule of statutory construction that all parts of a statute should be given effect if possible. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973). Therefore, the text and Explanatory Notes demonstrate a clear Congressional intent not to use the restrictive definition of "fiberboard" advanced by Witex. Accordingly, even if Witex could prove its commercial meaning of "fiberboard," there is a clear indication that Congress did not intend Witex's claimed commercial meaning. See Cadwalader v. Zeh, 151 U.S. 171, 176, 14 S.Ct. 288, 38 L.Ed. 115 (1894) (the "commercial meaning is to prevail, unless Congress *1319 has clearly manifested a contrary intention."). B. Other possible headings Alternatively, Witex asks the Court to choose another appropriate heading, referencing the dispute before the Court in Faus Group, Inc. v. United States, ___ F.Supp.2d ___, 2004 WL 2595876 (CIT Nov. 15, 2004), which deals with heading 4418, HTSUS, covering "[b]uilders' joinery and carpentry of wood." Pl.'s Mem. at 25. In Faus Group, ___ F.Supp.2d ___, 2004 WL 2595876 (CIT Nov. 15, 2004), the Court found that nearly identical laminated flooring panels were properly classifiable under heading 4411, HTSUS, and not under heading 4418, HTSUS. Because Witex does not present any arguments or evidence that would distinguish its merchandise from the merchandise in Faus Group, the Court deems that Witex's flooring panels are likewise classifiable under heading 4411, HTSUS, for the reasons set forth in Faus Group. C. Heading 4411, HTSUS, is the proper heading Because Witex's merchandise is classifiable under heading 4411, HTSUS, and there are no other appropriate headings under which its merchandise would fall, heading 4411, HTSUS, is the proper heading for Witex's flooring panels. II. Choosing the Proper Subheading Finding that Witex's flooring panels are properly classified under heading 4411, HTSUS, the Court next addresses under which subheading the merchandise falls. Both parties agree that, if the merchandise falls under heading 4411, HTSUS, the merchandise either falls under subheading 4411.19.30, HTSUS, for "[t]ileboard which has been continuously worked along any of its edges and is dedicated for use in the construction of walls, ceilings, or other parts of building," or subheading 4411.19.40, covering all "other" fiberboard products with densities greater than 0.8 g/cm3 which are surface covered by more than an oil treatment.[15] Because subheading 4411.19.40, HTSUS, is a basket provision, i.e., covering all products not classifiable elsewhere,[16] the flooring panels are only classifiable in subheading 4411.19.40, HTSUS, if they are not classifiable under subheading 4411.19.30, HTSUS. See Rollerblade, Inc. v. United States, 282 F.3d 1349, 1354 (Fed.Cir.2002) (citing EM Indus., *1320 Inc. v. United States, 22 CIT 156, 165, 999 F.Supp. 1473, 1480 (1998)). Consequently, this case hinges on the meaning of subheading 4411.19.30, HTSUS. Subheading 4411.19.30, HTSUS, covers "[t]ileboard which has been continuously worked along any of its edges and is dedicated for use in the construction of walls, ceilings, or other parts of buildings." Subheading 4411.19.30, HTSUS. The language of the subheading requires a product to exhibit three features: (1) it must be "tileboard"; (2) which has been continuously worked along any of its edges; and (3) is dedicated for use in the construction of walls, ceilings or other parts of buildings. Both parties essentially agree that Witex's flooring panels satisfy the last two prongs of the test: the panels are tongue-and-grooved along their edges, satisfying the second prong; moreover, the panels are used on "floors" which may be included within the meaning of "other parts of buildings."[17] However, the parties do not agree on the meaning of the word "tileboard." Consequently, the Court must define "tileboard" to determine whether the flooring panels can be classified under subheading 4411.19.30, HTSUS. A. The Legislative History "The first step in properly construing a tariff classification term is to determine whether Congress clearly defined that term in either the HTSUS or its legislative history." Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1048 (Fed.Cir.2001) (emphasis added). "Tileboard" is not defined in the HTSUS; however, both the Customs' Ruling, Headquarters Ruling ("HQ") 960084 (December 10, 1997), and the Government in this case have suggested that "tileboard" is defined by the legislative history of subheading 4411.19.30, HTSUS. In 1989, as part of an international effort to adopt a common nomenclature across nations, see Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1378 n. 1 (Fed.Cir.1999), the United States agreed to adopt the headings and subheadings (up to the six digit level) established under the international Harmonized Schedule, but reserved the right to create further subdivisions beyond the six digit level, see International Convention on the Harmonized Commodity Description and Coding System Article 3(3) found at http:// www.wcoomd.o rg/ie/En/Conventions/conventions.html.[18] Before the transition to *1321 the HTSUS became fully effective, J.J. Barker, Co. ("J.J.Barker"), an importer of "tileboard," alerted the Trade Policy Staff Committee ("TPSC")[19] that although its imports of paneling were duty free under the TSUS, under the proposed HTSUS J.J. Barker's product would face a 6% ad valorem duty rate. See Letter from S.C. Gauthier to Christopher P. Marcich, Director of Tariff Affairs, Ex. D to Def.'s Mem. (Jan. 8, 1988) ("Barker Letter"). According to the Government, the TPSC responded by adding subheading 4411.19.30, HTSUS, in order to maintain duty free treatment for J.J. Barker's imports. Def.'s Mem. at 11-14. According to the Government, because J.J. Barker's product was referred to as "tileboard," the Court should look to that product as a model for what constitutes "tileboard" within the meaning of subheading 4411.19.30, HTSUS. See Def.'s Mem. at 12-13. The Government, gleaning its information from a product brochure, Easy Living — With Barker, Ex. E to Def.'s Mem., describes "tileboard" as "completely water resistant decorative wall panels made of non-laminated hardboard with a density of 1.15 g/cm3 with their surface painted, coated and grooved to imitate individual ceramic tiles." Def.'s Mem. at 12. The letter from J.J. Barker cited by the Government, however, is of dubious probative value and does not provide a definite or express definition of "tileboard." As the Supreme Court has noted: Legislative history is problematic even when the attempt is to draw inferences from the intent of duly appointed committees of the Congress. It becomes far more so when we consult sources still more steps removed from the full Congress and speculate upon the significance of the fact that a certain interest group sponsored or opposed particular legislation. We ought not attribute to Congress an official purpose based on the motives of a particular group that lobbied for or against a certain proposal — even assuming the precise intent of the group can be determined.... Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 120, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (citations omitted). Similarly, the court in United States v. Paramount Publix Corp., 22 C.C.P.A. 452, 460 (1934) found that committee testimony of interested parties was not "controlling since the enactment of the provision in the language before us might have been with an intent wholly different from that indicated by the witnesses." This problem is particularly acute here where there is no indication of how the TPSC, or Congress, defined "tileboard" in relation to J.J. Barker's product.[20] Therefore, this history does not *1322 provide the Court with a definite or express definition of "tileboard."[21] Consequently, because the legislative history is of a non-dispositive nature, this case cannot be resolved by looking first to the legislative history for a definition. This does not mean that the Court deems the legislative history irrelevant for future use to bolster a definition; it simply means that at this juncture, the instant case cannot be resolved by recourse to the legislative history. B. Commercial Meaning When the HTSUS or legislative history do not define a term, the Court looks to the term's common or commercial meaning. Both parties have suggested that there is a commercial meaning for the term "tileboard."[22] Because a commercial designation, once proven, takes precedence over a common meaning, see Boen Hardwood Flooring, Inc. v. United States, 357 F.3d 1262, 1265 (Fed.Cir.2004), it is appropriate to determine if either party has established, or can establish, a commercial *1323 meaning. Cf. Cadwalader v. Zeh, 151 U.S. 171, 176, 14 S.Ct. 288, 38 L.Ed. 115 (1894) ("it is only when no commercial meaning is called for or proved, that the common meaning of the words is to be adopted"). Proof of a commercial meaning is a matter of fact, not law. Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1048 (Fed.Cir.2001); but cf. Boen, 357 F.3d at 1265. As this Court has long maintained, the rule of commercial designation is "intended to apply to cases where the trade designation is so universal and well understood that the Congress, and all the trade, are supposed to have been fully acquainted with the practice at the time the law was enacted." Jas. Akeroyd & Co. v. United States, 15 Ct. Cust.App. 440, 443 (1928). Accordingly, to establish a commercial meaning, a party must prove that "tileboard" has a commercial meaning in the trade "which is general (extending over the entire country), definite (certain of understanding), and uniform (the same everywhere in the country)." Rohm & Haas Co. v. United States, 5 CIT 218, 226, 568 F.Supp. 751, 757 (1983) (citations omitted). "The commercial meaning of tariff terms must be proved by persons engaged in buying and selling the merchandise at wholesale in the United States, or by persons who know, by their own experience or of their own knowledge, the meaning of the designation applied to the merchandise by those who buy and sell it at wholesale."[23]Rice Millers' Ass'n v. United States, 15 U.S.Cust.App. 355, 360 (1928). Moreover, mere negative inference that a product is excluded from a commercial designation is insufficient; rather, a party must offer positive evidence of the actual meaning of the commercial designation. United States v. Fung Chong Co., 34 C.C.P.A. 40, 44 (1946); Carl Zeiss, Inc. v. United States, 22 CIT 606, 610-11, 16 F.Supp.2d 1097, 1101 (1998). Last, minus a clear statement of commercial practice, Boen, 357 F.3d at 1265, testimony by witnesses is an indispensable tool in establishing a commercial meaning. See, e.g., Passaic Worsted Co. v. United States, 17 C.C.P.A. 459, 461-62 (1930); Rice Millers', 15 Ct. Cust.App. at 360. Both parties' evidence fails to meet these standards.[24] *1324 Ordinarily, upon the failure of a party, or parties, to establish a commercial designation, the Court will find that there is no commercial meaning and turn to the common meaning of the tariff term. However, it appears premature to entirely reject the possibility that "tileboard" does have a commercial meaning in this case. Rather, what "evidence" has been offered as to commercial meaning has not been sufficiently developed to determine if there is a commercial meaning, and if there is, what exactly that commercial meaning is. First, both parties agree that the American Hardboard Association ("AHA") does have a commercial designation for "tileboard." In fact, at least two Customs Rulings have relied, at least in part, on the AHA's commercial definition(s) of "tileboard." HQ 960084 at 4; HQ 085913 at 2 (January 8, 1990). However, neither party has offered testimonial evidence to this effect, and what evidence they have produced is confusing.[25] Because the sources *1325 cited by the parties do suggest that the AHA does have a commercial designation, testimony is required to determine to which, if any, of these definitions the AHA subscribes.[26] Second, evidence from industry practice, suggests that the industry may define "tileboard" differently from common sources. For example, the Terms of the Trade specifies that "tileboard" is "[a] hardboard panel that has been embossed with a pattern and then coated with epoxy. The resulting product is designed to look like ceramic tile, for use in kitchens, bathrooms, etc." Def.'s Mem. at 16 (citing Terms of the Trade 280 (3rd ed.1993)).[27] Using this definition, the Government deduces that "tileboard" must have an appearance of ceramic tile. Def.'s Mem. at 20-21. However, the Government also cites literature from ABT Co., the manufacturer of AquaTile(R) Embossed Tileboard, claiming that ABT Co.'s Tileboard has "the look of fine tile and marble." *1326 Def.'s Mem. at 17. Moreover, in HQ 085913, discussing Plywood Panels Inc.'s "tileboard," Customs refers to a definition of "tileboard" provided by the AHA as requiring "tileboard" to have a ceramic tile or marble appearance. HQ 085913 at 1 (January 8, 1990).[28] Plywood Panels Inc.'s "tileboard" likewise has a "ceramic or marble" appearance. Id., Def.'s Mem. at 13 n. 13. Depending on how one defines "designed to look like ceramic tile," ABT Co.'s and Plywood Panels Inc.'s products would not be "tileboard" because of their marble appearance. In other words, products the Government uses as evidence of "tileboard" would in fact not be "tileboard." Although the evidence from manufacturers is of questionable probative value, when joined with the purported AHA definition, this evidence leads the Court to believe that there may be a commercial definition of "tileboard" that deviates from the common meaning. Because the parties have not adequately supported their proffered commercial definitions of "tileboard" despite the fact that a commercial designation seems probable, it is impossible for the Court to exclude the possibility of a commercial designation and arrive at the proper construction of subheading 4411.19.30, HTSUS.[29] However, because of the Court's duty to determine the correct meaning of tariff terms, see Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed.Cir.1984), Congress vested the Court of International Trade with broad discretionary powers necessary to resolve cases like this. See 28 U.S.C. § 2643. Specifically, 28 U.S.C. § 2643(b) provides that: If the Court of International Trade is unable to determine the correct decision on the basis of the evidence presented in any civil action, the court may order a retrial or rehearing for all purposes, or may order such further administrative or adjudicative procedures as the court considers necessary to enable it to reach the correct decision. 28 U.S.C. § 2643 (emphasis added). In addition, USCIT Rule 56(d) authorizes the Court, in this situation, to "direct[] such further proceedings in the action as are just." Therefore, in accordance with its duty to determine the correct meaning of "tileboard," the Court finds that summary judgment is not appropriate at this time and orders the parties to prepare an order governing preparation for trial. *1327 CONCLUSION Because the Court finds the record insufficient to establish a commercial designation for the term "tileboard," or exclude the possibility thereof, the cross motions for summary judgment are denied. The parties shall jointly prepare an order governing preparation for trial and submit it to the Court by December 15, 2004. It is so ORDERED NOTES [1] Effective March 1, 2003, the United States Customs Service was renamed the United States Bureau of Customs and Border Protection. See Homeland Security Act of 2002, Pub.L. No. 107-296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308; Reorganization Plan Modification for the Department of Homeland Security, H.R. Doc. No. 108-32, at 4 (2003). [2] Fiberboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances: Fiberboard of a density exceeding 0.8 g/cm:3 4411.11.00 Not mechanically worked or surface covered * * * 4411.19 Other: 4411.19.20 Not surface covered (except for oil treatment) * * * Other: 4411.19.30 Tileboard which has been continuously worked along any of its edges and is dedicated for use in the construction of walls, ceilings or other parts of buildings 4411.19.40 Other [3] This protest covers Entry No. 471-0953408-2. Pl.'s Compli. at para. 1(a); Pl.'s Mem. Opp'n Def.'s Cross-Mot. Summ. J. ("Pl.'s Resp.") at 2; see also Def.'s Reply Pl.'s Resp. Def.'s Cross-Mot. Summ. J. ("Def.'s Reply") at 3 & n. 14. [4] As stated by Witex's Complaint, the Mannington challenges involve (1) Ruling on Protest No. 1001-99-105507 covering Entry Nos. D82-0981523, D82-0981640, D82-0981765, D82-0981788, D82-0981856, and D82-0981985 and (2) Ruling on Protest No. 1001-99-105508 covering Entry Nos. D82-0982266, D82-0982541, D82-0982760, and D82-0982837. Summons Mannington Mills, at 1, 3 (Mar. 21, 2000), Summons Witex at 1 (Feb. 13, 1998). Because Witex did not include Entry No. XX-XXXXXXX within its Summons, Summons Witex at 1 (Feb. 13, 1998), this entry is not properly before the Court, Pl.'s Answers Ct.'s Questions Pursuant Order Dated Sept. 20, 2004 at 1. [5] The Court notes the Government's objection as to whether Witex has sufficiently proved the identity of its merchandise, i.e., to which type of panels, or from what collection, the contested merchandise belonged. Def.'s Reply at 4 n. 18. The cases the Government cites, Group Italglass, U.S.A., Inc. v. United States, 16 CIT 763, 765, 798 F.Supp. 727, 728 (1992) and Fabil Mfg. Corp. v. United States, 25 CIT 514, 517, 2001 WL 576156 (2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), do establish that the burden of proof is on the plaintiff in establishing the identity of the actual imports. However, because "tileboard" remains defined at this stage only in the most general terms, see infra at 20-34, i.e., "tileboard" includes any product of a density greater than 0.8 g/cm3 used on walls, ceilings, or other parts of buildings, and both parties agree to the facts at this level of generality, summary judgment on the basis of Witex's failure to meet its burden is premature at this time. The Court does note that once a definition is established, Witex will bear the burden of proof concerning the identity of its merchandise. For example, if it is established that "tileboard" must look like ceramic tile, and if Witex does not know which entries, if any, have this pattern, Witex will fail to meet its burden of proof. [6] By using the term "use", the Court is not implying that this is the only, or principle, use of the panels. Rather, the Court is merely recognizing that both parties agree that the panels are used on floors. [7] The Government asks the Court not to consider this issue because Witex did not specifically brief it in this case. Def.'s Reply at 12, Def.'s Resps. Ct.'s Questions Prior Oral Argument on the Parties' Cross-Mot. for Summ. J. at 9. As the Government maintains: "Taken literally, a mandate to `find the correct result' would require a court to conduct its own analysis of imported merchandise and scour the tariff statute to ensure that all possible provisions have been considered. Indeed, this appears to be precisely what Witex is suggesting." Def.'s Reply at 12. Despite this, the Government also asks the Court to find that Boen Hardwood Flooring, Inc. v. United States, 357 F.3d 1262 (Fed.Cir.2004) controls this case insofar as it concerns the potential classification of the merchandise under heading 4418, HTSUS. See, e.g., Def.'s Mem. Supp. Cross-Motion Summ. J. ("Def.'s Mem.") at 29. However, Boen Hardwood Flooring did not decide this issue, and heading 4418, HTSUS, was never argued by the parties, at least at the trial court level. The Government cannot have it both ways. [8] Witex occasionally appears to suggest that Customs Rulings are reviewed under an abuse of discretion standard. See, e.g., Pl.'s Resp. at 9-10, Pl.'s Reply at 4-5. In classification cases, Witex must show that its product is "tileboard" under some definition of "tileboard." Even if the Government's definition is wrong, that does not by itself make a product "tileboard," nor does it resolve the case, for then the Court must define the term "tileboard." See Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed.Cir.1984). [9] The Court does not know what is meant by "unfinished laminate," i.e., whether "unfinished laminate" means that fiberboard must undergo further operations to become a finished laminate flooring panel, or whether it means that the fiberboard has not been surface coated with a finish. However, this ambiguity is immaterial for the reasons set forth below. [10] Witex suggests that Paul Garetto's testimony represents the "common meaning" of "fiberboard." Pl.'s Mem. at 13-14. Because the determination of common meaning is a question of law, Schott Optical Glass, Inc. v. United States, 67 C.C.P.A. 32, 34, 612 F.2d 1283, 1285 (1979), and the common meaning of a word should be readily obtainable to all persons who do not have specialized knowledge, testimony regarding a common meaning is considered only advisory. See Toyota Motor Sales, U.S.A., Inc. v. United States, 7 CIT 178, 183-84, 585 F.Supp. 649, 654 (1984). [11] Witex also cites the European Committee for Standardization's definition of fiberboard: "panel material with a nominal thickness of 1.5 mm or greater, manufactured from lignocellulosic fibers with application of heat and/or pressure." Pl.'s Mem. at 13. If this definition were relevant, it would still not support Witex's contention because it does not impose any requirement that fiberboard be "unfinished." [12] Just because the Court rejects the notion that fiberboard has a commercial meaning in the manner suggested by Witex does not mean that other terms under heading 4411, HTSUS, do not have commercial meanings. See infra at 1322-26. [13] Chapter Note 4 to Chapter 44, HTSUS, mandates that there is a point where the product has been sufficiently advanced such that it no longer falls within the eo nomine designation. However, the Court rejected in Faus Group, Inc. v. United States, 2004 WL 2595876(CIT Nov. 15, 2004) the argument that surface covering and tongue-and-grooving fiberboard were sufficient to remove a product from heading 4411, HTSUS. This reading is also consistent with the North American Laminate Flooring Association's definition of fiberboard which recognizes that "fiberboard" is a "core material." See North American Laminate Flooring Association, Laminate Flooring, Ex. 6 to Pl.'s Mem. at 2. [14] For a thorough discussion of Note 4 to Chapter 44, see Faus Group, Inc. v. United States, 2004 WL 2595876 (CIT Nov. 15, 2004). [15] There are three categories of subheadings under heading 4411, HTSUS, differentiating products on the basis of the density of the fiberboard product: (1) subheadings 4411.11 — 4411.19, HTSUS, covering fiberboard products with densities of greater than 0.8 g/cm3; (2) subheadings 4411.21 — 4411.29, HTSUS, covering fiberboard products with densities exceeding 0.5 g/cm3 but not exceeding 0.8 g/cm3 and; (3) subheadings 4411.31 — 4411.99, HTSUS, covering fiberboard with density of less than 0.5 g/cm3. Because Witex's flooring panels have a density of greater than 0.8 g/cm3, they fall within the first category of goods. This category is further divided as to whether the merchandise has been "mechanically worked or surface covered" where surface covered "means that one or more exterior surfaces of a product have been ... overlaid with paper...." Chapter 44, U.S. Note 1(c), HTSUS. Witex's flooring panels are overlaid with a color photograph of wood and are therefore "surface covered." This subdivision is further subdivided for products that have not been "surface covered (except for oil treatment)" which does not include Witex's merchandise because of the paper overlay. [16] Witex appears confused by what is meant by a "basket provision." See Pl.'s Mem. at 11. Classifying a product in a "basket provision" does not mean that a product is "unfinished." A "basket provision" is simply used to classify products not classifiable elsewhere. In fact, to be classified under subheading 4411.19.40, HTSUS, a product must be mechanically worked and surface coated by more than just oil which makes products classifiable there far from "unfinished." [17] The Court agrees that "other parts of buildings" may include floors. However, because "other parts of buildings" may include floors, it does not necessarily follow that "other parts of buildings" must include floors. Rather, the "other parts of buildings" modifies "tileboard." In other words, this language means "other parts of buildings" where "tileboard" is used — if "tileboard" is not used on floors, then floors are not another part of a building where "tileboard" is used. Because ejusdem generis is only applicable where legislative intent is unclear, see 2A Norman J. Singer, Statutes and Statutory Construction § 47.18 at 287-88 (6th ed.2000), if the Government can establish that the clear meaning of "tileboard" requires principle use on walls, then "other parts of buildings" cannot be read to enlarge the definition of "tileboard." As a brief aside, the phrase "wall, ceilings and other parts of buildings" was employed by the TSUS in defining "building boards." See Headnote 1(e) of Part 3 of Schedule 2 TSUS (1987). Neither of the two cases evaluating this term, Am. Hardboard Ass'n v. United States, 12 CIT 714 (1988), F.W. Myers & Co., Inc. v. United States, 59 Cust.Ct. 427, 275 F.Supp. 811 (1967), appear to lend assistance to the inquiry here. [18] The "tileboard" classification is beyond the six-digit level, and each nation is allowed to create its own subdivisions beyond the six-digit level. How Europe classifies these goods is therefore irrelevant when considering how the United States should classify goods at this level unless a party can show that the creation of the U.S. provision was influenced by the European nomenclature. [19] The TPSC was responsible for converting the TSUS to the HTSUS. The TPSC solicited public comment for the express purpose of "[a]void[ing], to the extent practicable and consonant with sound nomenclature principles, changes in rates of duty on individual products." Public Hearings on the Harmonized Commodity Description and Coding System, 48 Fed.Reg. 34,822, 34,823 (USTR Aug. 1, 1982). [20] In its letter to the TPSC, J.J. Barker only described its product as "finished hardboard" of "high quality, high priced `tileboard' bath and kitchen panels." Barker Letter, Ex. D to Def.'s Mem. at 1. (Note that: (a) the letter describes the merchandise not just as "tileboard," but a certain type of "tileboard" — i.e., "high quality, high priced `tileboard'" and (b) J.J. Barker also felt it was necessary to mention that its product was used in the bath and kitchen, an unnecessary defining feature if the only use of "tileboard" was in the bath and kitchen.) J.J. Barker appended a classification ruling from 1971 that described the product as "hardboard wall panels which are coated with melamine" which were bull-nosed, or rounded, along their vertical edges. Id. at 4; cf. with the Government's description, Def.'s Mem. at 12 (J.J. Barker's product was "completely water resistant decorative wall panels made of non-laminated hardboard with a density of 1.15 g/cm3 with their surface painted, coated and grooved to imitate individual ceramic tiles."). It is not clear upon which, if any, of these descriptions, the TPSC based its definition of "tileboard." Moreover, even if the Court were to adopt any of these descriptions, it would be impossible to determine what are the essential characteristics of "tileboard" on the basis of one product. For example, if a product matched the Government's proffered description, but it was only 1.1 g/cm3 in density, or if the product imitated marble rather than ceramic tiles, would it still be "tileboard"? Nonetheless, this evidence is not completely valueless. For instance, if Customs sought to classify products in a way that would exclude J.J. Barker's product from subheading 4411.19.30, HTSUS, this evidence may be probative. [21] When the legislative history provides a clear or express definition of a tariff term, the Court will rely on that definition. For example, courts have used definitions in reports prepared in conjunction with the drafting of the tariff provision, see e.g., Arthur J. Humphreys, Inc. v. United States, 973 F.2d 1554, 1557 (Fed.Cir.1992), or judicially established definitions of the same term used in an earlier version of the tariff schedule, see e.g., Intercontinental Marble Corp. v. United States, 381 F.3d 1169, 1175-76 (Fed.Cir.2004) (using the commercial definition of marble as established under the TSUS when interpreting that term in the HTSUS). However, absent a clear or express definition provided by the legislative history, definitions gleaned from the legislative history are merely probative and are used to bolster or support a definition derived from dictionaries, lexicons, scientific authorities, and other such reliable sources. Cf., Anhydrides & Chems., Inc. v. United States, 130 F.3d 1481 (Fed.Cir.1997). [22] The Court has been able to locate certain dictionary definitions of "tileboard." See Webster's Third New International Dictionary 2393 (1986) ("1: a board used in interior finishing and made from a large sheet of any of various materials having a decorative coating simulating a tiled surface. 2: a thin large square piece (as of wood) often with beveled edges that is fitted together with other like pieces to cover ceilings or walls."); McGraw-Hill Dictionary of Scientific and Technical Terms 2151 (6th ed.2003) ("[a] type of wallboard used for interior finishing in which the outer surface is a layer of hard glossy material, usually simulating tile."); Terms of the Trade 342 (4th ed.2000) ("[a] hardboard panel that has been embossed with a pattern and then coated with epoxy. The resulting product is designed to look like ceramic tile, for use in kitchens, bathrooms, etc."); Dictionary of Architecture and Construction 939 (3rd ed.2000)("1. A wallboard used for interior finishing; usually a base sheet material overlaid with a hard, glossy decorative facing to simulate tile. 2. Square or rectangular boards, usually made of compressed wood or vegetable fibers, often with beveled interlocking edges, used for ceiling or wall covering."); (Reed Construction Data at http://www.rsmeans.com/dictionary/index.asp? s=tileboard) ("(1) A wallboard with a factory-applied facing which is hard, glossy, and decorated to simulate tile. (2) A square or rectangular board of compressed wood or vegetable fibers, used for ceiling or wall facings.") (access is free upon registration, which is also free). [23] No evidence has been submitted of this nature. Testimony by persons who buy at wholesale, such as buyers for large home improvement stores, would likely produce greatly illuminating evidence of commercial meaning. [24] Witex submits a letter from C. Curtis Peterson ("Peterson"), the Executive Vice President of the American Hardboard Association ("AHA"), defining "tileboard" in such a way as to embrace Witex's product. Letter from C. Curtis Peterson to Witex USA, Inc, Ex. 10 to Pl.'s Mem. at 4-5 (Sept. 3 1997) ("Peterson Letter"). However, the Government has argued that this letter is susceptible to two meanings, see Def.'s Mem. at 16, and it appears that Witex never sent a sample of its merchandise for evaluation in garnering this opinion. Witex also cites a letter from the EPLF. See, e.g., Pl.'s Mem. at 5. First, for the reasons stated above, the EPLF does not represent United States commercial practice. See Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1049 (Fed.Cir.2001). Second, the EPLF's letter works against Witex rather than for it. The letter states: "`Tileboard' is considered in the industry to be backing for ceramic tiles." EPLF Letter, Ex. 12 to Pl.'s Mem. Note, the letter does not say "the simulation of ceramic tiles", rather it says "backing" for ceramic tiles. There is no indication from either party that Witex's merchandise is used in conjunction with ceramic tiles; even if simulating ceramic tiles were sufficient, "tileboard" would most likely not cover the simulation of wood. The Government's evidence fairs no better. The Court notes the most relevant of the Government's submissions. (1) The Government alleges that "the Lowes Home Improvement Center in Brooklyn, New York, displays products labeled as `tileboard,' such as [a physical sample the Government provided the Court], in its `decorative wall paneling' section while laminated flooring is located in the `flooring' section." Def.'s Mem. at 22; Def.'s Reply at 9 n. 23. This is not corroborated by affidavit, deposition or other evidentiary material. See USCIT R. 56(e). (2) The Government submits pictures of Louisiana Pacific Graystone Tileboard, i.e., Louisiana Pacific Graystone Tileboard, Ex. B. to Def.'s Mem., without reference to who took them or where the pictures are from, e.g., a webpage URL or product brochure; these pictures cannot be considered as evidence. (3) The Government cites the Study Concerning the Tariff Classification of Imported Laminate Flooring Panels, a report prepared by F. Holbrook Platts ("Platts") of Platts Laminate Technologies which should have been appended to that brief. Def.'s Mem. at 21. However, the Government has not provided the Court with a copy of that report, the credentials of Platts, or indicated upon what Platts bases his conclusion. (4) Of, and to the extent, the Government is attempting to incorporate Voluntary Product Standard 59-73 on "Prefinished Hardboard Paneling," see Def.'s Mem. at 16-17, the Court notes that this Product Standard was withdrawn in 1980. See Status Report on Withdrawal of Voluntary Product Standards, 45 Fed.Reg. 55,250, 55,250-51 (Nat'l Bureau of Standards Aug. 19, 1980), American National Standards Institute, Prefinished Hardboard Paneling (1973) (with the word "withdrawn" stamped on its cover) (on file with the Court). Moreover, the product standard merely defines products by their finish thereby supporting the Peterson letter (not, necessarily, the Government's position). See American National Standards Institute, Prefinished Hardboard Paneling (1973).(5) The Government's citations to tileboard manufacturers' web sites are not evidence of testimony by wholesalers. See e.g., Def.'s Mem. at 17-18, 22.(6) The Government refers to the National Emissions Standards for Hazardous Air Pollutants for the Surface Coating Operations of Wood Building Products prepared by the Environmental Protection Agency ("EPA"). Def.'s Mem. at 22. If the Government submitted evidence that these regulations were promulgated on the basis of industry standards this evidence might be probative; however, the Government has failed to do so, rendering this evidence of low probative value. Cf. RSMC Inc. v. United States, 84 Cust.Ct. 96, 100 (1980). Moreover, without more information, the Court cannot ascertain whether the surface coating criteria used by the EPA is supportive of, or contradictory to, the American Hardboard Association's definition of surface coating discussed infra at notes 25 and 26.(7) The Government notes that Witex has never marketed its product as "tileboard." See, e.g., Def.'s Resp. Ct.'s Questions Prior Oral Arguments Parties' Cross-Motions Summ. J. at 5. Although evidence of marketing practice may be suggestive, it is not dispositive. See Rainin Instrument Co. v. United States, 27 CIT ___, ___, 288 F.Supp.2d 1360, 1366 (2003); cf. Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1380 (Fed.Cir.1999). Moreover, this does not provide the reason for exclusion, i.e., to which part of the Government's proposed five prong test this evidence lends credence. [25] Custom's initial Headquarters Ruling interpreting subheading 4411.19.30, HTSUS, relied on a commercial designation provided by the AHA. HQ 085913 at 2 (January 8, 1990) (citing the AHA's definition of "tileboard" as: a "hard, durable, and water-resistant coating or finishing applied to fiberboard to give it a ceramic-like or marble-like look."). Likewise, the Ruling in this case supported its conclusion by relying on the opinion of the AHA, albeit with a different definition. HQ 960084 at 4 (noting that tileboard and flooring are separate products). As noted above, Witex has submitted a letter from C. Curtis Peterson ("Peterson"), the Executive Vice President of the AHA, which offers yet another definition of "tileboard." Peterson Letter, Ex. 10 to Pl.'s Mem. at 4 ("Tileboard is a melamine coated high density fiberboard panel product" and "[t]he defining characteristic of tileboard paneling is its `finish'" which Peterson defines by reference to the American National Standard (ANSI/AHA A135.5-1995) for Class I Finishes.). Fourth, the Government references the AHA Publication entitled "Tileboard Wall Paneling" that "explains that tileboard paneling is suitable for installation in any room in the home including kitchen and laundry, and that it has a hard durable surface that is highly resistant to stains and moisture when properly installed and maintained." Def.'s Mem. at 16-17. The Government did not cite an exhibit number, but the Court found what appears to have been that to which the Government is referring as an Exhibit to the Amicus' Brief. See Ex. A to Brief of Amicus Curiae Congoleum Corp. in Supp. of Pl.'s Motion for Summ. J. ("Brief of the Amicus"). Testimony by a representative of the AHA would help the Court determine if these definitions can be reconciled. [26] Both the Government, and Customs' Ruling, reference the AHA Publication entitled "Tileboard Wall Paneling" for the proposition that: "tileboard paneling is suitable for installation in any room in the home including kitchen and laundry, and that it has a hard durable surface that is highly resistant to stains and moisture when properly installed and maintained." Def.'s Mem. at 16-17; see also HQ 960084. This publication does include language to this effect, but also notes that "[h]ardboard tileboard paneling is covered by U.S. Department of Commerce Voluntary Product Standard PS 59, `Prefinished Hardboard Paneling,' (ANSI A 135.5-1973) Class 1 Finish," American Hardboard Association, Tileboard Wall Paneling, Ex. A to Amicus' Brief at 4, which Witex's product may satisfy, see Aff. of Danny Thomas, Ex. 10 to Pl.'s Mem. at 3 (asserting that Witex meets the ANSI A 135.5-1995 Standard). The meaning of this passage is far from unequivocal. If a product meets the ANSI A135.5-1973 finish specifications (which is presumably an earlier version of the ANSI A 135.5-1995 specifications cited by Witex), does this make the tileboard suitable for application in bathrooms and kitchens, or are these independent requirements? The Government's argument is a little difficult to understand because on the one hand the AHA requires that "tileboard" pass the ANSI A135.5-1973 Standard, which may include a test for humidity resistance, cf. Peterson Letter, Ex. 10 to Pl.'s Mem. at 4 (citing the ANSI A 135.5-1995 Standard which includes a test for "humidity resistance"), while on the other hand, the Government also alleges that tileboard must have greater properties for water resistance than those required by ANSI A 135.5-1973. This problem is made especially difficult because: (a) the Government uses multiple means of referring to water resistance such as "highly resistant to stains and moisture," Def.'s Mem. at 16, or "complete resistance to moisture," id. at 19; (b) frequently discusses water-resistance in terms of where a product is used, e.g., in bathrooms, Def.'s Mem. at 20; and (c) has nowhere defined the required level of water resistance necessary for a product to be considered "tileboard." [27] Note that this definition does not require products to be used on walls, and does not necessarily require the product to be water-resistant and to be non-laminated. [28] Evidence of this definition has not been submitted to the Court. However, the Court may take judicial notice of the logic and reasoning of Customs Rulings, cf. United States v. Mead, 533 U.S. 218, 235, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), especially when the Court is looking to displace a commercial meaning used by Customs with a different common meaning. The Court also notes that, as addressed in Note 25, this definition is only one variant of the possible AHA definitions, and is the only one that requires a particular appearance. Therefore, when giving the Government the benefit of the doubt that appearance matters, there is some tension between the commercial and common meaning. [29] Witex is joined by a companion case, Faus Group, ___ F.Supp.2d ___, 2004 WL 2595876 (CIT Nov. 15, 2004). The counsel in that case has rested its resolution on the disposition of this case. Furthermore, these proceedings are joined by Amicus Congoleum Corporation who has secured an order from the Court suspending its case on the Court's Reserve Calendar pending resolution of this case. Therefore, the interest in developing a cogent and correct theory of subheading 4411.19.30, HTSUS, to apply to future cases (which is not a mere possibility) is strong. Given that once a commercial or common meaning is established, that meaning remains controlling, see e.g., Intercontinental Marble Corp. v. United States, 381 F.3d 1169, 1176 (Fed.Cir.2004), it is important that the Court not rush to define "tileboard" with less than complete information as to its meaning.

259 U.S. 209 (1922) MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. LIEBING. No. 215. Supreme Court of United States. Argued April 21, 24, 1922. Decided May 29, 1922. ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI. *210 Mr. Wm. Marshall Bullitt, with whom Mr. Frederick L. Allen, Mr. John H. Holliday, Mr. Frederic D. McKenney, Mr. S.W. Fordyce, Mr. Thomas W. White and Mr. W.H. Woodward were on the briefs, for plaintiff in error. Mr. James J. O'Donohoe for defendant in error. *212 MR. JUSTICE HOLMES delivered the opinion of the court. This is a suit to recover upon a policy insuring the life of one Blees, issued to him and subsequently assigned by him to his wife, now Mrs. Liebing, the plaintiff (defendant in error). The contract was made on September 29, 1901, by the defendant (the plaintiff in error), in Missouri, by a delivery of the policy to Blees in Macon, Missouri, where he lived. Three annual premiums were paid. After the fourth was due, within the time allowed, Blees and his wife signed an application for a loan of $9,550 and sent it with the policy to the defendant's agency at St. Louis, by which it was forwarded to New York. The application followed the terms of the policy, which agreed that after it had been in force three years the company would lend amounts within the cash surrender value, upon certain conditions, the policy being assigned as security. Following these terms the application deducted from the cash to be received the fourth annual premium and an adjustment of interest, leaving the balance to be paid $4,790.50. The loan was to be for one year and the application authorized the company upon default to cancel the policy and apply the customary cash surrender consideration to the payment of the loan. The application was approved in New York and a check for $4,790.50 to the order of Mr. and Mrs. Blees, with a receipt for the fourth premium, was *213 sent from New York to the company's manager in St. Louis and by him forwarded to a local agent who delivered the documents to Blees. The check was endorsed and paid. A year later when repayment was due it was not made. Thereupon on December 4, 1905, the company canceled the policy and applied the surrender value to the loan, which was of equal amount, leaving a deficit of $74.57 interest. Blees died on September 8, 1906, and upon inquiry from Mrs. Blees the company notified her of what had been done. Its action had been in accordance with the terms of its contract and the law of New York. But some years later, Mrs. Blees, now Mrs. Liebing, brought the present action relying upon the Revised Statutes of Missouri, 1899, § 7897, set forth and considered in New York Life Insurance Co. v. Dodge, 246 U.S. 357, and, after a previous decision the other way, she recovered by the final judgment of the Supreme Court of the State. 226 S.W. 897. The Missouri statute provided that such policies as the present, after three annual payments, should not become void for nonpayment of premiums, but that three-fourths of the net value of the policy after deducting certain liabilities should be taken as a premium for temporary insurance for the full amount written in the policy. It is not disputed that if this statute governs the case, the plaintiff stood as having a policy for the original amount at the death of Mr. Blees. In New York Life Insurance Co. v. Dodge, 246 U.S. 357, it was held that when the later transaction was consummated in New York, Missouri could not prohibit a citizen within her borders from executing it. But if the later contract was made in Missouri, then by the present and earlier decisions notwithstanding any contrary agreement the statute does govern the case. See 246 U.S. 366. The policy now sued upon contained a positive promise to make the loan if asked, whereas in the one last mentioned *214 it might be held that some discretion was reserved to the company. For here the language is "the company will . . . loan amounts within the limits of the cash surrender value", &c., whereas there it was "cash loans can be obtained." On this distinction the Missouri court seems to have held that as soon as the application was delivered to a representative of the company in Missouri the offer in the policy was accepted and the new contract complete, and therefore subject to Missouri law. If, however, the application should be regarded as only an offer the effective acceptance of it did not take place until the check was delivered to Blees, which again was in Missouri where he lived. In whichever way regarded the facts lead to the same conclusion, and although the circumstances may present some temptation to seek a different one by ingenuity, the Constitution and the first principles of legal thinking allow the law of the place where a contract is made to determine the validity and the consequences of the act. Judgment affirmed.

788 F.2d 5 Lucasv.U.S. 85-2288 United States Court of Appeals,Second Circuit. 2/28/86 1 S.D.N.Y. AFFIRMED

575 So.2d 1117 (1990) Cherry R. BAYLISS v. John Martin BAYLISS. Civ. 7550. Court of Civil Appeals of Alabama. August 22, 1990. Rehearing Denied November 14, 1990. *1118 Frank M. Bainbridge of Bainbridge, Mims & Rogers, Birmingham, for appellant. Stephen R. Arnold of Durward & Arnold, Birmingham, for appellee. RUSSELL, Judge. This case involves post-divorce proceedings and, in particular, the payment of post-minority support for college education. We note, at the outset, that this is the second time that this case has been before us. In Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989), the supreme court held that "[i]n Alabama, ... a trial court [has] jurisdiction to require parents to provide postminority support for college education to children of a marriage that has been terminated by divorce." In compliance with the supreme court's opinion, this case was reversed and remanded to the trial court for proceedings consistent with that opinion. 550 So.2d 996. On remand, the trial court *1119 ordered John Martin Bayliss III (father) to pay an amount equivalent to room, board, books, tuition, and necessary fees at Auburn University beginning with the winter term which started in January 1990 (the last three semesters of college) for his son, Patrick Bayliss. Cherry R. Bayliss (mother) appeals. We affirm in part, reverse in part, and remand. Although the mother raises a number of contentions, we find the dispositive issue to be whether the trial court abused its discretion in requiring that the father pay postminority support for a college education at the cost of an in-state, public school for only the last three semesters of college when Patrick had been attending a private, out-of-state school for two and one-half years. We further note that, where evidence is presented ore tenus, the trial court's judgment is presumed correct unless it is so unsupported by the evidence that it is plainly and palpably wrong. Coby v. Coby, 489 So.2d 597 (Ala.Civ.App.1986). However, where there is no factual dispute, there is no presumption of correctness which attaches to the court's determination, and, therefore, our inquiry is limited to whether the relevant law was correctly applied to the undisputed facts. Birmingham Retirement & Relief System v. Elliott, 532 So.2d 1019 (Ala.Civ.App.1988). Additionally, matters of child support rest within the trial court's discretion and will be reversed only upon a showing that it has abused its discretion or that its determination is plainly and palpably wrong. Brannon v. Brannon, 477 So.2d 445 (Ala.Civ. App.1985). The record reveals that Patrick was one of two children born of the marriage and that the mother and the father were divorced in 1982. In January 1988, the mother filed a petition to modify, requesting increased alimony and increased child support for Patrick, then age 18. In March 1988, when Patrick had attained the age of 19, the mother amended her petition, seeking payment for Patrick's college education from the father. Patrick began attending Trinity College in the fall of 1987. Testimony from the first hearing, which was held on May 23, 1988, reveals that the mother receives $36,000 per year in alimony, and that in 1987, she received an additional $4,000 in income from investments and earned approximately $2,000 from a business selling clothes out of her home. The mother also sold a portion of the land that she received with the marital home for $20,000 and increased the mortgage on the marital home by $50,000. The sums from the sale of the land and remortgage of the home were invested and have been used to send Patrick to Trinity College in Hartford, Connecticut. The testimony further reveals that the father's total income was $372,245 for 1986, $320,731 for 1987, and $411,968 for 1988, and that a portion of the stated income includes undistributed partnership profits. The father has refused Patrick's requests for financial help, has refused to co-sign for a loan in Patrick's name, and has not directly contributed to the cost of Patrick's college education. Patrick testified that he discussed Trinity College and Washington and Lee University with his father after visiting twentythree schools and before applying to Trinity College, but that he did not discuss college choices with his father after his father refused financial support for college. The father testified that he did not object to Trinity College, that Patrick never discussed entering Trinity College with him, and that he had stated that he might help Patrick with college, but only after the mother had exhausted her funds. At the hearing on remand, which was held on January 12, 1990, it was stipulated that Patrick was in the middle of his junior year at Trinity College; that the cost per year for tuition, room, board, fees, and student activity was $17,000 and the cost for indirect expenses was $5,500, for a total cost of $22,500 a year; that the mother has paid for all but $2,500 per year, which Patrick receives from a student loan; that Patrick does well at Trinity College and that his grades were A's and B's; and that the father has "the financial ability to respond to Patrick's needs." *1120 The record indicates that there was no factual dispute between the parties; therefore, we must now determine whether the trial court correctly applied the relevant law to the facts and whether the judgment was an abuse of discretion and plainly and palpably wrong. Birmingham Retirement & Relief System, 532 So.2d 1019; Brannon, 477 So.2d 445. Since the amount of post-minority college support that a non-custodial parent can be required to provide is a question of first impression, we look to Bayliss, wherein the supreme court merged the law of other states, for guidance. In Bayliss, the supreme court addressed the jurisdiction of the trial court to require parents to provide post-minority support for college education to children of a marriage terminated by divorce as follows: "In a proceeding for dissolution of marriage or a modification of a divorce judgment, a trial court may award sums of money out of the property and income of either or both parents for the post-minority education of a child of that dissolved marriage, when application is made therefor, as in the case at issue, before the child attains the age of majority. In doing so, the trial court shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child's commitment to, and aptitude for, the requested education. The trial court may consider, also, the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child's relationship with his parents and responsiveness to parental advice and guidance." 550 So.2d at 987 (first emphasis supplied; second emphasis original in Bayliss). The supreme court additionally stated: "Our trial courts have demonstrated that they have the wisdom of Solomon in these domestic matters. We know that they will continue to demonstrate that wisdom in deciding whether to require a parent to provide, or help defray the cost of, a college education for a child, even after that child attains the age of 19 years." Id. at 995. Clearly, the trial court has been given discretionary authority to determine whether to award any post-minority college support applied for during minority for the child's education and in making this determination "shall consider all relevant factors that shall appear reasonable and necessary." Id. at 987. Bayliss clearly specifies those factors which shall, and those which may, be considered by the trial court in awarding sums for post-minority education, and we must now determine whether the trial court abused its discretion in applying these factors in its determination that the husband be responsible for a portion of the cost of the remainder of Patrick's four-year college education (three semesters) at the cost of Auburn University. We will first address the financial resources of the parents, one factor which must be considered by the trial court in awarding sums for college education. Although the father's income was over $400,000 in 1988, he testified that a portion of his income either was in-kind or was partnership profits which were not received. The wife receives $36,000 in alimony from the husband, plus whatever she receives in income from selling clothes and from investment income. In considering the comparative financial resources of the mother and father, the trial judge may very well have considered the evidence that the income shown in the husband's tax returns did not indicate the amount of income that he actually received and that the husband was already paying $36,000 in alimony to the wife. The next factor listed in Bayliss, which must be considered by the trial court, is the child's commitment to, and aptitude for, the requested education. The supreme court stated that Patrick would be "an Alpha Plus if this were Huxley's Brave New World," Bayliss, 550 So.2d at 994, and we find that this continues to be true. Patrick has maintained his grades at a very high *1121 level, as well as participating in athletics and other activities, thereby demonstrating his aptitude for college education. Therefore, we find that Patrick has clearly demonstrated the commitment to, and the aptitude for, a college education. An additional factor which the trial court may consider in awarding sums of money for a college education is the standard of living which the child would have enjoyed if the family had not been separated by divorce. Here, there was evidence presented to the trial court that the father attended Auburn University and that he had recommended attendance at a state school to Patrick if Patrick planned to live in Alabama. In considering the standard of living that the child would have enjoyed if the marriage had not been dissolved, we find that the trial court could have considered that Patrick may very well have been provided a college education at Auburn University and no more. Finally, the supreme court in Bayliss has directed that the trial court may consider the child's relationship with his parents and his responsiveness to their advice and guidance. The father cites cases from other jurisdictions for the proposition that the distance between Patrick and the father is a factor which supports the trial court's decision. We note that in those cases the parent was excused from paying any amount toward the cost of a college education due to complete repudiation of the parent by the child and refusal to associate with the parent for no apparent reason. See Hambrick v. Prestwood, 382 So.2d 474 (Miss. 1980), and Riegler v. Riegler, 259 Ark. 203, 532 S.W.2d 734 (1976). In the present case, Patrick did discuss his college visitation with his father, but did not initiate further discussions regarding college choices with his father after the father declined to give financial aid. Although the son and the father may both be at fault in their estrangement, the trial court could have considered the exclusion of the father from the college selection process and the lack of input as to cost management in its decision limiting the father's financial responsibility to a portion of the cost of a college education at Auburn University. We also note that, in limiting the father's cost to the payment of tuition, room, board, books, and fees, the trial court could have left the other reasonable expenses of maintenance to be supplied by the mother or other sources. We find that this is also in line with the holding in Bayliss, wherein the supreme court states that "a trial court may award sums of money out of the property and income of either or both parents." Bayliss, 550 So.2d at 987. Finally, we will consider that portion of the trial court's judgment which holds that the father shall contribute to Patrick's college education beginning with the winter term which started in January 1990. This coincides with the issuance of the trial court's order on remand. The petition to modify was filed on January 6, 1988, in the middle of Patrick's freshman year at Trinity College; the trial court's first order was entered on June 21, 1988; and Ex parte Bayliss was rendered in the summer of 1989. The trial court did not apply any of these dates for retroactive application of the college support obligation of the father. In the absence of such retroactive application, the father would only be required to assist with three semesters of Patrick's attendance at college. Our interpretation of Bayliss is that this was not the intent of the supreme court. It is apparent that time is particularly crucial in a request for modification to provide for post-minority support for a college education. In the present case, although the mother filed her petition to modify at the end of Patrick's first semester in college, support has been granted only from the middle of his junior year. Without retroactivity in a case such as this, it is possible that a case could be delayed by appeals until college attendance was completed and that the non-custodial parent could avoid his or her duty to provide that support. "There is a sound policy favoring retroactivity in most cases, because the party entitled to support should not be penalized for having to resort to time-consuming *1122 court proceedings." Sutliff v. Sutliff, 339 Pa.Super. 523, 556, 489 A.2d 764, 781 (1985). Therefore, we find that, in cases involving post-minority support for college education where the child is already attending college, the decision rendered by the trial court will be retroactive to the time of the filing of the request. Based on the above, we find that the trial court correctly applied the relevant law to the facts, that the judgment of the trial court was supported by the evidence, and that the trial court did not abuse its discretion when it ordered the father to pay an amount equivalent to room, board, books, tuition, and necessary fees at Auburn University. However, we further find that the part of the order that grants this support from the beginning of the winter term which started in January of 1990 is due to be reversed and that the support is to be granted from the date of the filing of the petition to modify. This case is due to be affirmed in part, reversed in part, and remanded with instructions to enter an order consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. INGRAM, P.J., and ROBERTSON, J., concur.

FILED July 27, 2016 TENNESSEE WORKERS ' COMPENSATION APPEALS BOARD Time: 1 :04 P.M. TENNESSEE BUREAU OF WORKERS' COMPENSATION WORKERS' COMPENSATION APPEALS BOARD Lazaro Valladares ) DocketNos. 2015-01-0117 ) 2015-01-0118 v. ) ) Transco Products, Inc., et al. ) State File Nos. 91964-2014 ) 39859-2014 and ) ) Williams Specialty Services, LLC, et al. ) ) and ) ) Abigail Hudgens, Administrator of the ) Bureau of Workers' Compensation, ) Second Injury Fund ) ) Appeal from the Court of Workers' ) Compensation Claims, ) Thomas Wyatt, Judge ) Affirmed and Remanded - Filed July 27, 2016 In these consolidated interlocutory appeals, an employer and the Second Injury Fund present procedural issues questioning the trial court's denial of motions to dismiss the employee's claims and motions to alter or amend status conference orders. Additionally, the Second Injury Fund questions the trial court's authority to set a scheduling hearing sua sponte. Following a show cause hearing, which was set when no party requested a hearing within sixty days after the filing of dispute certification notices, the trial court held a status conference that resulted in the employee's being allowed more time to file a request for an expedited hearing. The trial court's orders instructed the parties to participate in a second status conference if the employee did not file a request for an expedited hearing by a specified date. Following a hearing on motions for dismissal and other motions by the employers and the Second Injury Fund, the trial court denied the motions and set a scheduling hearing. One employer and the Second Injury Fund have appealed. We affirm the trial court' s denial of the various motions and remand the case for further proceedings as may be necessary. 1 Judge Timothy W. Conner delivered the opinion of the Appeals Board, in which Judge Marshall L. Davidson, III, joined. Judge David F. Hensley filed a separate concurring opm10n. Allison Lowry, Knoxville, Tennessee, for the appellant, Second Injury Fund Joseph Ballard, Atlanta, Georgia, for the employer-appellant, Transco Products, Inc. Chadwick Rickman, Knoxville, Tennessee, for the employee-appellee, Lazaro Valladares David Weatherman, Memphis, Tennessee for the employer, Williams Specialty Services, LLC Factual and Procedural Background On May 27, 2015, Lazaro Valladares ("Employee") filed two petitions for benefit determination with the Bureau of Workers' Compensation ("Bureau"). In the first petition, he alleged he slipped on gravel and fell on October 2, 2014, resulting in work- related injuries to his left arm, low back, and body while in the employment of Specialty Services, LLC ("Specialty Services"). In the second petition, he alleged he slipped and fell in the rain on November 5, 2014, while in the employment of Transco Products, Inc. (" ransco Products"), which caused work-related injuries to his right leg, left shoulder, 2 and body. 1 Both petitions included the Second Injury Fund ("SIF") as a party. Employee alleged he reported both injuries to his employers. He apparently neither sought nor received medical care following the October 2, 2014 incident. After reporting the second incident, he was provided a panel of physicians by Transco Products. 3 He was seen twice by Dr. Rickey Hutcheson, the physician he selected from the panel, but he declined to return to Dr. Hutcheson after the second visit and requested that he be provided a different physician. Since that time, Employee has received medical care from a physician he selected on his own who was not authorized by Specialty Services or Transco Products. Except for Employee's indication that he has had surgery on his cervical spine, there is no information in the record regarding the nature or extent of Employee's medical treatment. 1 No testimony has been given in this case and no affidavits or declarations made under penalty of perjury have been filed with the trial court. Accordingly, the limited facts presented herein are taken from the documents filed with the Bureau that are included in the technical record on appeal. 2 The two claims were consolidated by the trial court. 3 In numerous places throughout the record, reference is made to Employee's not having been provided a panel of physicians. However, it appears to be undisputed that he was given a panel as a result of his second alleged injury and that he chose a physician from that panel. 2  Following the filing of the petitions and unsuccessful efforts to resolve the claims through the Bureau's mediation process, dispute certification notices were filed on July 20, 2015. Because no party filed a request for hearing in either claim within 60 days of the filing of the dispute certification notices, on November 24, 2015, the claims were placed on a dismissal calendar for a show cause hearing, which was scheduled for December 21, 2015. 4 At Employee's request, the parties agreed to continue the show cause hearing to January 12, 2016. Following the hearing, the trial court issued show cause orders that extended the time for Employee to decide how to proceed until January 29, 2016 and scheduled a status conference for that date. These orders required Employee's attorney to inform the court during the January 29, 2016 status conference how Employee intended to proceed and addressed the dates by which requests for an expedited hearing or an initial hearing were to be made: If [Employee's attorney] informs the Court at the Status Conference that his client intends to file a Request for Expedited Hearing, the Court will enter an order requiring that he file the Request for Expedited Hearing within five business days from January 29, 2016, or, failing such, his claim will be dismissed without prejudice. If [Employee's attorney] informs the Court at the Status Conference that his client requests an Initial (Scheduling) Hearing, the Court will schedule [the claims] for a Compensation Hearing. Following the January 29, 2016 status conference, orders were entered noting Employee's request for additional time to obtain an expert medical opinion and the SIF's objection to the request and its own requests that the court schedule a compensation hearing. The trial court granted Employee until February 29, 2016 to file requests for expedited hearings, stating in its February 5, 2016 orders that "[i]f [Employee] has not filed a Request for Expedited Hearing on or before February 29, 2016, the parties shall call . . . on March 10, 2016, to schedule a Compensation Hearing and the attendant deadlines." In addition, the orders provided that, should Employee file requests for expedited hearings on or before February 29, 2016, "the Court will not conduct the scheduling conference on March 10, 2016." The orders allowed the parties "to engage in discovery at this time .... " The February 5, 2016 orders were not appealed. Employee did not file a request for a hearing, and on March 4, 2016, the court clerk issued docketing notices setting an initial hearing on March 10, 2016. However, prior to the March 10 hearing, but more than 30 days after entry of the February 5, 2016 4 See Tenn. Comp. R. & Regs. 0800-02-21-.12( 1) (2015) ("Immediately after a dispute certification notice has been filed with the clerk, either party seeking further resolution of any disputed issues shall file a request for a hearing .... If no request for hearing is filed within sixty (60) calendar days after the date of issuance of the dispute certification notice, the clerk shall docket the case and place the case on a separate dismissal calendar for a show cause hearing.") 3 status conference order, the SIF filed a motion to alter or amend the February 5, 2016 status conference order and for entry of a dismissal order. The SIF contended in its motion that the trial court had no authority to set an initial hearing, arguing that "since no request for hearing has been filed, it is the position of the SIF that this matter can only be set sua sponte by this Court for a Show Cause hearing." The SIF requested the trial court to "alter or amend its Status Conference Orders insofar as those Orders [and the subsequent Docketing Notices] set this matter for an initial/scheduling conference on March 10, 2016, and instead set this matter for a final show cause hearing on that date for entry of an Order of Dismissal in accordance with this Court's Order of January 13, 2016 .... " (Brackets in original.) On March 8, 2016, the SIF filed a "Motion to Set Final Show Cause Hearing on March 10, 2016, or, in the Alternative, to Continue Initial Hearing." On the same date, the SIF filed a "Supplemental Motion to Alter or Amend Status Conference Orders and to Set for Final Show Cause Hearing." The SIF again asserted in its motions that "since no request for hearing has been filed, it is the position of the SIF that this matter can only be set sua sponte by this Court for a Show Cause hearing." The SIF requested that, rather than conduct an initial/scheduling conference on March 10, 2016, the court "instead set this matter for a final show cause hearing on that date." At the March l 0, 2016 hearing, the parties announced they were in agreement to continue the initial/scheduling hearing. Based on the parties' discussions with the court, the court continued "the Initial (Scheduling) Hearing" to March 29, 2016 and allowed "[a]ny party wishing to file written opposition to the [SIF's] motions [to] do so no later than March 22, 2016." The trial court's March 11, 2016 order stated that Employee's counsel "shall further report on his client's medical progress during the ... hearing." Additionally, the court's order stated that the court "informed counsel that, at the motion hearing, they should announce their clients' positions as to whether a bifurcated hearing on the disputed legal/causation issues in these claims is in order to move this claim forward more expeditiously." Thereafter, Transco Products filed a motion to dismiss pursuant to Rule 12 of the Tennessee Rules of Civil Procedure, asserting that the dispute certification notice filed in the claim against it limited the issues to "whether Employee is entitled to a second opinion following the selection of his authorized treating physician." Contending Employee was not entitled to a second opinion, Trancso Products asserted that Employee could not prevail against it without such opinion and that the claim against it should, therefore, be dismissed. Specialty Services likewise filed a motion to dismiss asserting "the mere fact that Employee fell at work is not sufficient to maintain an action against (Specialty Services] when there is no evidence of any resulting injury." In addition, Specialty Services adopted the SIF's motion to dismiss. Alternatively, Specialty Services moved the court for a more definite statement of the claims asserted against it. 4  Employee filed a response to the SIF's motions, requesting that the trial court "schedule these matters for a Compensation Hearing." Because both employers filed potentially dispositive motions, to which the Practices and Procedures of the Court of Workers' Compensation Claims allows an employee thirty days to respond, the trial court issued a docketing notice on April 11, 2016 scheduling an in-person hearing to address all pending motions on May 18, 2016. On the scheduled hearing date, Employee filed a response to Transco Products' motion to dismiss, requesting again that the trial court "schedule this matter for a Compensation Hearing." Following the May 18, 2016 hearing, the trial court entered an order denying the SIF's motion to alter or amend the status conference orders. The trial court determined that "it is not required to await a party's request for an Initial (Scheduling) Hearing, but may schedule an Initial (Scheduling) Hearing sua sponte if it deems such is necessary to move a case toward an efficient and timely conclusion." Additionally, the trial court determined the SIF's argument for dismissal of Employee's claim was based on "an incorrect interpretation of the Court's January 13, 2016 order," and was without merit. Finally, the trial court set an initial hearing for June 15, 2016 "at which time it will schedule the Compensation [Hearing] and attendant deadlines in these claims." Similarly, the trial court denied Transco Products' motion to dismiss, determining that although "the Court considered Transco's motion unopposed," the lack of opposition to a motion does not require the court to "automatically grant the relief moved for." Determining that Transco Products' Rule 12 motion was "based on the allegation that [Employee's] [petition for benefit determination] ... failed to state a claim recognized by law," the trial court concluded that Employee provided "a short and plain statement communicating that he sought workers' compensation benefits for the described work- related injury." The trial court also determined that the dispute certification notice did not limit his request for relief to a second medical opinion, but sought "a new treating physician and, potentially, other remedies for Transco's failure to provide him a panel of physicians." The trial court considered "it appropriate to review the [dispute certification notice] in considering whether [Employee] has sufficiently stated a claim," and concluded that "[c]learly, [Employee] seeks remedies other than a second opinion." The trial court also denied Specialty Services' motion to dismiss and its motion to alter or amend the status conference orders. However, in light of Employee's counsel's agreement during the May 18 hearing, the trial court granted Specialty Services' motion for a more definite statement, ordering that Employee "file ... a more definite statement regarding the alleged injury he sustained in the course and scope of his employment [with Specialty Services]." On June 7, 2016, the SIF filed a motion to stay the proceedings pending an appeal, asserting that "[i]n the event the Appeals Board modifies or reverses [the trial court's] interlocutory order, it would be in the interest of judicial economy and efficiency to stay 5 the Initial Hearing and further proceedings in this Court until prompt resolution of the appeal." The trial court granted the motion and stayed "all further proceedings in these claims pending the completion of the [SIF's] appeal" and cancelled "the Initial (Scheduling) Hearing scheduled for June 15, 2016." Both the SIF and Transco Products have appealed. Standard of Review The standard we apply in reviewing a trial court's decision is statutorily mandated and limited in scope. Specifically, "[t]here shall be a presumption that the findings and conclusions of the workers' compensation judge are correct, unless the preponderance of the evidence is otherwise." Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court's decision must be upheld unless the rights of a party "have been prejudiced because findings, inferences, conclusions, or decisions of a workers' compensation judge: (A) Violate constitutional or statutory provisions; (B) Exceed the statutory authority of the workers' compensation judge; (C) Do not comply with lawful procedure; (D) Are arbitrary, capricious, characterized by abuse of discretion, or clearly an unwarranted exercise of discretion; or (E) Are not supported by evidence that is both substantial and material in the light of the entire record." Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court absent the limited circumstances identified in the statute. Analysis Transco Products 'Appeal In its brief on appeal, Transco Products raises two issues, which we have restated as whether the trial court erred in allowing Employee to present oral argument at the May 18, 2016 hearing in opposition to Transco Products' motion to dismiss, and whether the trial court erred in determining that Employee sufficiently stated a claim for relief. We find no merit in either issue. Whether Trial Court Erred in AlJowing Oral Argument Opposing Transco Products' Motion to Dismiss Rule 4.0l(B) of the Practices and Procedures of the Court of Workers' Compensation Claims provides the following guidance with respect to the time within which a party must respond to a dispositive motion: 6  If a dispositive motion is opposed, a response to the motion must be filed and served . . . on or before thirty calendar days after the filing of the dispositive motion. The response shall be in writing and shall state with particularity the grounds for the opposition. If no opposition is, filed, the dispositive motion will be considered unopposed. Employee filed a response to Transco Products' March 18, 2016 motion to dismiss the morning of the May 18, 2016 hearing, which was significantly more than 30 days after the filing of the dispositive motion. Transco Products objected to the late filing, and the trial court refused to consider the written filing, stating it was "going to consider the motion to be unopposed" in accordance with Rule 4.0l(B). Nonetheless, the trial court allowed Employee's counsel to argue his position at the hearing and granted Transco Products' request for time to respond in writing to the Employee's oral argument. However, in its June 2, 2016 order denying the motion to dismiss, the court noted that it "does not consider the term 'unopposed' as used in Rule 4.0l(B) as a requirement that it automatically grant the relief moved for. The moving party must still show entitlement under the law to the relief moved for." The trial court did not address Employee's oral argument in its order denying the motion to dismiss, but determined that the motion to dismiss was based on Employee's alleged failure to state a claim for relief under Rule 12.02(6) of the Tennessee Rules of Civil Procedure. Transco Products asserts on appeal that "if any rational[] basis exists to grant an unopposed motion, the Trial Court is bound to grant said motion." Transco Products has cited no authority in support of this argument. Neither Rule 4.0l(B) nor any other applicable rule prohibits a trial court from deciding motions on their merits. Likewise, the Bureau's regulations do not prohibit a trial court from considering the merits of an unopposed motion. Cf Rochelle v. Oscar Mayer Foods Corp., No. 01-S-01-9207-CH- 00087, 1992 Tenn. LEXIS 748, at *12 (Tenn. Workers' Comp. Panel Jan. 19, 1993) (Local rules of practice requiring a response to an opposed motion to be filed and providing that the court may dispose of the motion as unopposed if no response is filed "do[] not prohibit any court from deciding questions on their merits."). Accordingly, under the circumstances presented, we discern no error in the trial court's allowing Employee to orally express his opposition to Transco Products' motion to dismiss at the hearing. We also find no error in the trial court's decision to consider the merits of the motion despite the lack of a written response. Whether mp loyee Sufficiently Stated a Claim for Relief The second issue Transco Products raises on appeal is whether Employee stated an actionable claim against it. In its brief on appeal, it asserts that "[t]o test the sufficiency of Employee's pleading, [it] filed a Motion to Dismiss to determine whether Employee has set forth a valid claim for which relief can be granted." Noting the trial court's reliance on Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002), 7  and asserting that the trial court "essentially equates Employee's [petition for benefit determination] to the filing of a complaint," Transco Products contends "the sparse facts contained within the [petition for benefit determination], without more, do not survive a Motion to Dismiss." In analyzing this issue, the trial court noted that Employee filed his claim against Transco Products by completing a petition for benefit determination. The trial court observed that "[w]hen read as a whole, [Employee's] petition for benefit determination against Transco states that he injured his 'right leg, left shoulder and body' when he 'slipped and fell in rain while carrying [an] MRI panel' on '11/05/2014."' The court concluded that "the petition for benefit determination filed by [Employee] provided Transco a short and plain statement communicating that he sought workers' compensation benefits for the described work-related injury. Accordingly, Transco is not entitled to dismissal under Rule 12.02(6)." We agree. In order to commence a cause of action within the applicable limitations period, an injured worker must timely file a petition for benefit determination. Tenn. Code Ann. § 50-6-203(b ). A petition for benefit determination is defined as "a request for the [Bureau] to provide assistance in the resolution of any disputed issues in a workers' compensation claim." Tenn. Comp. R. & Regs. 0800-02-21-.02(19) (2015). We have noted that a petition for benefit determination is the general equivalent of a complaint because it initiates the process for resolving disputes whether or not benefits have been paid. See Duck v. Cox Oil Co., No. 2015-07-0089, 2016 TN Wrk. Comp. App. Bd. LEXIS 2 (Tenn. Workers' Comp. App. Bd. Jan. 21, 2016); see also Black's Law Dictionary (6th ed. 1990) (defining a "complaint" as "the original or initial pleading by which an action is commenced" and a "petition" as "a formal written application to a court requesting judicial action on a certain matter."). 5 This means that, when faced with the type of motion to dismiss as was filed in this case, the trial court will consider whether, assuming the truth of the employee's averments, the employee can prove no set of facts entitling him or her to relief. 6 5 In his concurrence, our colleague argues that the filing of a petition for benefit determination and a dispute certification notice "occurs before the point in time at which the Tennessee Rules of Civil Procedure have attached to the process." While we agree with this statement in the abstract, we find nothing in the statute or regulations that prohibits a trial court from examining these filings once the Rules of Civil Procedure are applicable, as they are here, to determine their sufficiency in the context of a pending motion. Moreover, our colleague asserts that "the analysis fails to address the procedure established in the Reform Act for presenting disputed issues to the trial court." We disagree. Nothing in the statute or regulations prohibits a party from utilizing Tenn. R. Civ. P. 15.01 or Tennessee Code Annotated section 50-6-239(b), as applicable, to amend such filings by use of a motion, as opposed to filing a request for expedited hearing. Indeed, the trial court in this case granted an employer's motion for more definite statement, thereby giving the employee an opportunity to amend the allegations in his petition for benefit determination. 6 Tennessee Rule of Civil Procedure 12.02(6) governs motions to dismiss for failure to state a claim upon 8  As noted above, Employee's petition for benefit determination naming Transco Products as a party alleged an injury to his "right leg, left shoulder and body" when he "slipped and fell in rain while carrying [an] MRI panel" on "11/05/2014." He characterized the disputed issue as the "right to medical treatment under Tenn. Code Ann. 50-6-204." He indicated that he had not been provided a panel of physicians, identified the doctor he had seen for the injury, and described the medical care provided to include "x-ray of right leg, MRI." In addition, he indicated that the SIF was involved. The trial court determined Employee's petition sufficiently stated a cause of action and declined to dismiss the case. Taking the assertions in the petition as true for purposes of Rule 12.02(6) as we must, see Bell, 986 S.W.2d at 554, we find no error in the trial court's denial of Transco Products' motion to dismiss. The Second Injury Fund's Appeal The SIF presents two issues on appeal. First, it alleges the trial court erred in setting the cases for an initial hearing when the parties did not request a hearing. Second, it alleges the trial court erred "in failing to dismiss [Employee's] claims in accordance with [the trial court's] prior order(s)." Following the trial court's issuance of the June 2, 2016 order denying the SIF's motions, the SIF filed a motion to stay the proceedings pending its appeal, representing that it would timely appeal the trial court's June 2, 2016 order. The motion to stay the proceedings noted that the trial court's June 2, 2016 order scheduled an initial hearing on June 15, 2016, and asserted that "[i]n the event the Appeals Board modifies or reverses this Court's interlocutory order, it would be in the interest of judicial economy and efficiency to stay the Initial Hearing and further proceedings in this Court until prompt resolution of the appeal." On June 8, 2016, the trial court stayed the proceedings, finding "that a stay of these proceedings serves the interest of judicial economy." The June 8, 2016 order cancelled the June 15, 2016 initial hearing and arguably rendered the SIF's first issue on appeal moot. We note, however, that although Rule 0800-02-21-.12 does not explicitly authorize trial courts to schedule initial hearings where no party has requested a hearing, nothing in the regulations precludes a trial court from doing so. Specifically, Rule 0800-02-21-.13(1) requires parties to participate in an initial hearing "no more than thirty (30) calendar days after a request for hearing is filed," but the rule does not preclude the possibility that such a hearing could be scheduled by the court earlier. Tenn. Comp. R. & Regs. 0800-02-21-.13(1) (2015) (emphasis added). It is which relief can be granted. Such a motion challenges only the legal sufficiency of the complaint or request for relief, not the strength of the proof. See Bell ex rel. Snyder v. Icard, Merrill, Cul/is, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999) ("Such a motion admits the truth of all relevant and material averments contained in the complaint, but asserts that such facts do not constitute a cause of action as a matter of law."). Thus, a trial court should grant a Rule 12.02(6) motion to dismiss only when it appears the employee can prove no set of facts in support of the claim that would warrant relief. Doe v. Sunquist, 2 S.W.3d 919, 922 (Tenn. 1999). 9 consistent with common practice, applicable regulations, the Tennessee Rules of Civil Procedure, and the need to control its docket and the progress of cases to allow a trial court to set a scheduling hearing in the absence of a request by a party to do so. The SIF's second issue questions the trial court's failure to dismiss Employee's claims pursuant to the trial court's January 13, 2016 order. In its brief, the SIF states "[t]he position of the SIF is that [Employee's] claim should have been dismissed for failure to show cause after being given a multitude of opportunities to do so." We note that a show cause hearing was held on January 12, 2016, and that the trial court issued a show cause order the following day granting Employee "time to decide how to proceed .. . until January 29, 2016, on which date the Court scheduled a telephonic Status Conference." No one appealed the January 13, 2016 show cause order or the February 5, 2016 status conference orders. Rather, the SIF filed motions to alter or amend the status conference orders on March 7, 2016, which the trial court denied in the order on appeal. Focusing on the trial court's explanation in the June 2, 2016 order on appeal addressing why the January 13, 2016 show cause order did not mandate dismissal of Employee's claims, the SIF contends that "based on the totality of the circumstances, it is clear that [Employee's attorney] in fact communicated to the Court on January 29, 2016, that he was filing a Request for Expedited Hearing, not a Request for Initial Hearing." Asserting that "[s]ince [Employee's attorney] was ordered to inform the Court which of the two hearings he intended to pursue and the Court did not schedule a compensation hearing at that time, an inference should be drawn that [the attorney] communicated to the Court he was pursuing an expedited hearing." As noted in the SIF's brief, "no audio recordings of either January hearing were preserved." Beyond what the transcripts of the March 10, 2016 and May 18, 2016 hearings and the trial court's orders reveal, we cannot know what the "totality of the circumstances" might be, nor can we draw inferences concerning what a party or counsel communicated or represented to the court without the aid of transcripts of the proceedings or orders identifying such communications. It is the responsibility of the appealing party to ensure a complete record on appeal by either filing a transcript prepared by a licensed court reporter or, alternatively, filing a statement of the evidence. See Tenn. Comp. R. & Regs. 0800-02-22-.02(2). Here, transcripts of the March 10, 2016 and May 18, 2016 hearings were filed with the trial court, but neither transcripts of the January 12, 2016 and January 29, 2016 hearings nor a statement of the evidence presented in those hearings was included in the record. We are unable to discern the "totality of the circumstances" as suggested by the SIF without such transcripts. Moreover, the January 13, 2016 order upon which the SIF relies included the following language that the SIF contends bound the trial court to a specific course of action that it failed to take: 10  If [Employee's attorney] informs the Court at the [January 29, 2016] Status Conference that his client intends to file a Request for Expedited Hearing, the Court will enter an order requiring that he file the Request for Expedited Hearing within five business days from January 29, 2016, or, failing such, his claim will be dismissed without prejudice. If [Employee's attorney] informs the Court at the Status Conference that his client requests an Initial (Scheduling) Hearing, the Court will schedule this claim for a Compensation Hearing. In the order on appeal, the trial court addressed the January 13, 2016 order and concluded it did not mandate a dismissal of Employee's claims, stating "the condition precedent in the order for the Court's imposition of the five-day deadline to file Requests for Expedited Hearing never occurred; therefore, the Court was not under a self-imposed mandate to dismiss [Employee's] claims because he did not file Requests for Expe~ited Hearings within a deadline that never came into effect." The January 13, 2016 orders were interlocutory in nature and did not resolve all of the issues or claims before the trial court. Thus, they were subject to revision by the trial court at any time before entry of a final order. See Tenn. R. Civ. P. 54.02 (An "order or other fonn of decision is subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties."). Here, the trial court did not modify the January 13, 2016 order; rather, it interpreted its own order as not requiring dismissal of Employee's claims on the sole basis of Employee's not requesting an expedited hearing. Not knowing the "totality of the circumstances" as communicated or represented by the parties in the January 12, 2016 or January 29, 2016 hearings, we cannot say that the trial court erred in interpreting its own orders and denying the SIF's motion to alter or amend the February 5, 2016 status conference orders, or in denying the SIF's motion to dismiss Employee's claims. Discretion to Control Docket Before concluding, we must address the trial court's observations that "a majority" of the Appeals Board in Smith v. The Newman Group, No. 2015-08-0075, 2015 TN Wrk. Comp. App. Bd. LEXIS 30 (Tenn. Workers' Comp. App. Bd. Sept. 21, 2015), held that trial courts have the discretion to control their dockets. Specifically, the trial court observed that "a majority of the Appeals Board held [in Smith] that trial judges in the Court of Workers' Compensation Claims possess discretion to control the pace of litigation in their courts to ensure equitable and efficient disposition of the claims litigated therein." The trial court reiterated the point a second time, noting that "the majority in Smith held that a workers' compensation trial judge has broad discretion to manage its docket." 11  While we were divided in Smith as to whether the trial court acted within its discretion in denying an employer's motion to dismiss following a show cause hearing, the observations made by the trial judge in this case reflect an overly narrow construction of our views expressed in Smith. Consistent with well-established law, we were then, and are now, unanimous in our belief that a trial court has the necessary discretion to control the pace of litigation through the use of case supervision and docket 7 management. But we are also unanimous that such discretion is not without its limits. In Smith, we differed over where the discretionary line should be drawn under the particular circumstances presented in that case, but not over whether such discretion exists. Conclusion For the foregoing reasons, we conclude that the trial court did not err in denying Transco Products' motion to dismiss Employee's claim or in denying the SIF's motions to alter or amend the status conference orders or to dismiss Employee's claims. We additionally conclude that the trial court's decisions did not violate any of the standards set forth in Tennessee Code Annotated section 50-6-217(a)(3). Accordingly, the trial court's decisions are affirmed and these consolidated cases are remanded for any further proceedings that may be necessary. -~ W. Conner, Judge rs' Compensation Appeals Board 7 See, e.g., Sissom v. Bridgestone/Firestone, Inc., No. M2011-00363-WC-R3-WC, 2012 Tenn. LEXIS 411, at *3 n.2 (Tenn. Workers' Comp. Panel June 20, 2012) ("trial judges have been charged with controlling the pace of litigation through the use of supervision and docket management which will ensure efficient disposition of civil cases"); Lewis v. Dana Holding Corp., No. W2010-01863-WC-R3- WC, 2011 Tenn. LEXIS 461, at *9 (Tenn. Workers' Comp. Panel June 6, 2011) ("[a] trial court has broad discretion in managing its courtroom and docket"). 12  TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’ COMPENSATION APPEALS BOARD Lazaro Valladares ) Docket Nos. 2015-01-0117 ) 2015-01-0118 v. ) ) State File Nos. 91964-2014 Transco Products, Inc., et al. ) 39859-2014 ) and ) ) Williams Specialty Services, et al. ) ) and ) ) Abigail Hudgens, Administrator of the ) Bureau of Workers’ Compensation, ) Second Injury Fund ) ) ) Appeal from the Court of Workers’ ) Compensation Claims, ) Thomas Wyatt, Judge ) Concurring Opinion - Filed July 27, 2016 I concur with the conclusions in the lead opinion that the trial court did not err in denying the motions at issue. Additionally, as noted in the lead opinion, the Appeals Board is unanimous in our belief that a trial court has the necessary discretion to control the pace of litigation through the use of case supervision and docket management and in our belief that such discretion is not without its limits. I write separately to express my opinion that it was error for the trial court to analyze Transco Products’ motion to dismiss under Rule 12.02(6) of the Tennessee Rules of Civil Procedure. In my opinion, the appropriate procedure Transco Products should have followed to present its disputed issue would have included (1) properly identifying the issue in the dispute certification notice filed with the Bureau, and (2) requesting that 1 the trial court hear its dispute on an expedited basis in accordance with Tennessee Code Annotated section 50-6-239(d) (2015). Tenn. Comp. R. & Regs. 0800-02-21-.02(19) defines a petition for benefit determination as a “request for the [Bureau] to provide assistance in the resolution of any disputed issues in a workers’ compensation claim.” It further provides that “[a]ny party may file a petition for benefit determination, on a form approved by the [Bureau], with the [Bureau] at any time after a dispute arises in a claim for workers’ compensation benefits.” Id. The form approved by the Bureau provides a checklist from which the petitioner can select the type of relief being requested, and it includes an area for the petitioner to explain any disputed issues in addition to providing information about the employee, the employer, the injury, the insurance carrier, and whether the Second Injury Fund is involved. Although the Appeals Board has equated a petition for benefit determination to a complaint filed with the clerk of the court to commence a civil action, see Duck v. Cox Oil Co., No. 2015-07-0089, 2016 TN Wrk. Comp. App. Bd. LEXIS 2 (Tenn. Workers’ Comp. App. Bd. Jan. 21, 2016), it is essentially a fill-in-the-blank document and checklist intended to initiate a request that the Bureau provide assistance in resolving disputed issues in a workers’ compensation claim. Once a petition for benefit determination has been filed, the parties are required to participate in alternative dispute resolution measures designed to help the parties resolve claims by agreement. See Tenn. Code Ann. § 50-6-236(b) (2015). If the parties are unable to reach an agreement, the mediator prepares and issues a dispute certification notice, “setting forth all unresolved issues for hearing before a workers’ compensation judge.” Tenn. Code Ann. § 50-6-236(d)(1). However, “[n]o party is entitled to a hearing before a workers’ compensation judge to determine temporary or permanent benefits . . . unless a workers’ compensation mediator has issued a dispute certification notice setting forth the issues for adjudication by a workers’ compensation judge.” Tenn. Code Ann. § 50-6-236(d)(3)(A). See also Tenn. Code Ann. § 50-6-203(a) (“No request for a hearing by a workers’ compensation judge . . . shall be filed with the court of workers’ compensation claims, other than a request for settlement approval, until a workers’ compensation mediator has issued a dispute certification notice certifying issues in dispute for hearing before a workers’ compensation judge.”). Tennessee Code Annotated section 50-6-239(a) provides the procedure for “a party seeking further resolution of disputed issues” to present those issues to the workers’ compensation judge. This section provides that such party “shall file a request for a hearing,” and subdivision 50-6-239(b)(1) limits the issues that may be presented to those “issues that have been certified by a workers’ compensation mediator within a dispute certification notice.” Tenn. Code Ann. § 50-6-239(a), (b)(1) (2015). Here, Transco Products identified “compensability” as an issue in the dispute certification notice, but it did not include as a defense or as a disputed issue whether the petition for benefit determination fails to state a claim upon which relief can be granted. Instead of 2 requesting an expedited hearing to resolve the disputes identified in the dispute certification notice, Transco Products filed a separate motion to dismiss grounded in Rule 12 of the Tennessee Rules of Civil Procedure, which presented an issue that was not included or identified in the dispute certification notice. In its brief on appeal, it asserts that “[t]o test the sufficiency of Employee’s pleading, [it] filed a Motion to Dismiss to determine whether Employee has set forth a valid claim for which relief can be granted.” Tennessee Code Annotated section 50-6-239(c)(1) provides that the Tennessee Rules of Civil Procedure “shall govern proceedings at all hearings before a workers’ compensation judge unless an alternate procedural . . . rule has been adopted by the administrator.” Tenn. Code Ann. § 50-6-239(c)(1) (emphasis added). “[T]he phrase ‘proceedings at all hearings’ as used in section 50-6-239(c)(1) encompasses all filings made by the parties as a result of any request for or notice of a hearing filed after the issuance of a dispute certification notice.” Syph v. Choice Food Group, Inc., No. 2015- 06-0288, 2016 TN Wrk. Comp. App. Bd. LEXIS 18, at *13 (Tenn. Workers’ Comp. App. Bd. Apr. 21, 2016). The filing with the Bureau of both a petition for benefit determination by any party and an initial dispute certification notice by a workers’ compensation mediator occurs prior to any request for or notice of a hearing before the Court of Workers’ Compensation Claims. Thus, the filing of these documents occurs before the point in time at which the Tennessee Rules of Civil Procedure have attached to the process. It necessarily follows that, at the time both a petition for benefit determination and an initial dispute certification notice are filed, neither is subject to the requirements applicable to a civil complaint or an answer to a civil complaint as contemplated in the Tennessee Rules of Civil Procedure. In these consolidated cases, the analysis by both the trial court and in the lead opinion applies the pleading requirements of the Tennessee Rules of Civil Procedure to Employee’s petition for benefit determination, but that analysis fails to address the procedure established in the Reform Act for presenting disputed issues to the trial court, focusing instead on whether the information in the petition for benefit determination states a claim upon which relief can be granted. In my opinion, this is an incorrect analysis. Neither analysis addressed whether Transco Products identified the issue in the dispute certification notice or whether Transco Products initiated the appropriate procedure for presenting the issue to the trial court by requesting an expedited hearing pursuant to Tennessee Code Annotated section 50-6-239(d). In my view, the purpose of the expedited hearing process is to allow any party the opportunity to have the trial court hear and resolve disputes over issues included in the dispute certification notice concerning the provision of benefits. See Tenn. Code Ann. § 50-6-239(d)(1). Transco Products failed to comply with section 50-6-239(a) when it did not request an expedited hearing, and it avoided the prohibition in section 50-6-239(b) against presenting issues not certified by the workers’ compensation mediator by filing a motion to dismiss under Rule 12 of the Tennessee Rules of Civil Procedure. While I agree that the motion to 3 dismiss should have been denied, in my opinion, the trial court erred in analyzing Transco Products’ motion to dismiss based on Rule 12.02(6). 4  TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’ COMPENSATION APPEALS BOARD Lazaro Valladares ) Docket Nos. 2015-01-0117 ) 2015-01-0118 v. ) ) State File Nos. 91964-2014 Transco Products, Inc., et al. ) 39859-2014 ) and ) ) Williams Specialty Services, LLC, et al. ) ) and ) ) Abigail Hudgens, Administrator of the ) Bureau of Workers’ Compensation, ) Second Injury Fund ) ) Appeal from the Court of Workers’ ) Compensation Claims, ) Thomas Wyatt, Judge ) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced case was sent to the following recipients by the following methods of service on this the 27th day of July, 2016. Name Certified First Class Via Fax Via Email Address Mail Mail Fax Number Email Chad Rickman X [email protected] Joseph Ballard X [email protected] David Weatherman X [email protected] Allison Lowry X [email protected] Thomas Wyatt, Judge X Via Electronic Mail Kenneth M. Switzer, X Via Electronic Mail Chief Judge Penny Shrum, Clerk, X [email protected] Court of Workers’ Compensation Claims Matthew Salyer Clerk, Workers’ Compensation Appeals Board 220 French Landing Dr., Ste. 1-B, Nashville, TN 37243 Telephone: 615-253-1606 Electronic Mail: [email protected] 

642 F.Supp. 860 (1986) In re The EVENING NEWS ASSOCIATION TENDER OFFER LITIGATION. This Document Relates To: The COAST GUARD ACADEMY FOUNDATION, INC., Plaintiff, v. The EVENING NEWS ASSOCIATION, et al., Defendants. No. 86-CV-72369, Master File No. 85-CV-74843. United States District Court, E.D. Michigan, S.D. August 20, 1986. Charles A. Dean, Birmingham, Mich., and William F. Looney, Jr., Boston, Mass., for plaintiff. Philip J. Kessler, Detroit, Mich., and John B. McCrory, Washington, D.C., for defendants. MEMORANDUM OPINION AND ORDER FEIKENS, District Judge. This is one of six consolidated cases in which plaintiffs claim that The Evening News Association ("ENA") and its directors violated state and federal laws by purchasing plaintiffs. ENA shares pursuant to a tender offer of $250 per share. The Coast Guard Academy Foundation ("Foundation") alleges that defendants violated Title IX of the Organized Crime Control Act of 1970 (commonly known as the Racketeer Influenced and Corrupt Organizations Act, or "RICO"), 18 U.S.C. §§ 1961-1968, by sending the Foundation three letters during December, 1984 in a successful bid for the Foundation's one thousand ENA shares.[1] The Foundation is the only plaintiff alleging a RICO violation. Defendants move to dismiss the claim. RICO liability is predicated on a "pattern of racketeering activity," 18 U.S.C. § 1962(a)-(c), which "requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity." 18 U.S.C. § 1961(5). Even though the Foundation is admittedly challenging only one securities transaction, it claims to have satisfied the pattern requirement by treating *861 each of the three letters it received from ENA as a separately indictable mail fraud under 18 U.S.C. § 1341. I hold that a "pattern of racketeering activity" requires more than a single episode of racketeering activity even if the episode consists of more than one indictable act. The Foundation's interpretation transforms "garden variety" frauds and many commercial disputes into RICO cases, and flouts the purpose of Congress in enacting RICO "to seek the eradication of organized crime in the United States ... [and] to deal with the unlawful activities of those engaged in organized crime." Organized Crime Control Act of 1970, Pub.L. No. 91-452, 1970 U.S.Code Cong. & Ad. News 1073 (84 Stat. 922, 923). In Sedima v. Imrex, ___ U.S. ___, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985), the Supreme Court invited a rigorous interpretation and application of the pattern requirement: The implication [of RICO's definition of a "pattern of racketeering activity"] is that while two acts are necessary, they may not be sufficient. Indeed, in common parlance two of anything do not generally form a "pattern." Courts have accepted the invitation. In Modern Settings v. Prudential-Bache Securities, 629 F.Supp. 860 (S.D.N.Y.1986), plaintiffs alleged securities fraud and a RICO violation based on defendants' liquidation of plaintiffs' account. The court dismissed the RICO claim: Plaintiffs insist that this liquidation— consisting of the sale of various government-backed mortgage instruments and other securities—constitutes a "pattern of racketeering activity" [but] we have no difficulty in finding that this single episode of fraud ... is no pattern. Each of the multiple sales involved in the liquidation may indeed violate the securities laws; however, each is but part of a single transaction. ... There is no pattern of racketeering activity in the liquidation alone, regardless of the number of sales required to consummate it. Modern Settings, 629 F.Supp. at 864 (emphasis added). See also Superior Oil v. Fulmer, 785 F.2d 252, 254-57 (8th Cir.1986) (reversing judgment for plaintiffs on a RICO claim where predicate acts proved were all part of a single fraudulent scheme); Northern Trust Bank v. Inryco, 615 F.Supp. 828, 831 (N.D.Ill.1985) (allegation of two mailings pursuant to a single scheme does not state a RICO claim because "`pattern' ... presumes repeated criminal activity, not merely repeated acts to carry out the same criminal activity.") (emphasis original); McIntyre's Mini Computer Sales Group v. Creative Synergy, 644 F.Supp. 580, 585 (E.D.Mich.1986) (Pratt, J.) (dismissing RICO claim where alleged predicate acts were all part of "the same criminal episode or transaction"); Zahra v. Charles, 639 F.Supp. 1405, 1409 (E.D. Mich.1986) (Pratt, J.) (same). But cf. R.A.G.S. Couture v. Hyatt, 774 F.2d 1350, 1355 (5th Cir.1985) (after noting that the District Court did not consider the issue, and without considering whether the alleged predicate acts were part of a single transaction, the Court holds that two allegedly fraudulent mailings can form a RICO pattern).[2] Accordingly, defendants' motion to dismiss the Foundation's RICO claim is GRANTED. IT IS SO ORDERED. NOTES [1] The Foundation alleges "[o]n information and belief" that defendants sent three related letters during the first six months of 1985 to ENA shareholders. (Amended Complaint ¶¶ 27(d)-(f), 28(d)-(f), 29(d)-(f)). Since the Foundation was not a shareholder after December, 1984, it did not receive the letters. [2] Several Courts have criticized or rejected R.A. G.S. See Papagiannis v. Pontikis, 108 F.R.D. 177, 179 n. 3 (N.D.Ill.1986); Soper v. Simmons International, 632 F.Supp. 244, 250-54 (S.D.N.Y. 1986); Torwest DBC v. Dick, 628 F.Supp. 163, 167 (D.Colo.1986).

91 U.S. 559 (____) HALL ET AL. v. UNITED STATES. Supreme Court of United States. Argued by Mr. Assistant Attorney-General Edwin B. Smith for defendants, and submitted on printed arguments by H.J. Horn for plaintiffs. MR. JUSTICE CLIFFORD delivered the opinion of the court. Fifteen hundred dollars per annum are allowed to collectors of internal revenue as salary for their services and that of their deputies, to be paid quarterly. Commissions, in addition to salary, are also allowed to such officers, to be computed upon the amounts by them respectively collected, paid over, and accounted for, under the instructions of the Treasury Department, as follows: Three per cent upon the first $100,000; one per centum upon all sums above $100,000, and not exceeding $400,000; and one-half of one per centum on all sums above $400,000. Such an officer may also keep and render to the proper officers of the treasury an account of his necessary and reasonable charges for stationery and blank-books used in the performance of his official duties, and for postage actually paid on letters and documents received or sent, and exclusively relating to official business; and, if the account is approved by the proper accounting officers, the collector is entitled to be paid for the same: but the provision is that no such account shall be approved, unless it shall state the date and the particular items of every such expenditure, and shall be verified by the oath or affirmation of the collector. Two provisos are annexed to those enactments: (1.) That the *560 salary and commissions of no collector, exclusive of stationery, blank-books, and postage, shall exceed $10,000 in the aggregate, nor more than $5,000, exclusive of the expenses for rent, stationery, blank-books, and postage, and pay of deputies and clerks, to which such collector is actually and necessarily subjected in the administration of his office. (2.) That the Secretary of the Treasury be authorized to make such further allowances from time to time, as may be reasonable, in cases in which, from the territorial extent of the district, or from the amount of internal duties collected, or from other circumstances, it may seem just to make such allowances. 13 Stat. 231. Sufficient appears to show that the principal defendant was duly appointed a collector of internal revenue under the act of Congress in that case made and provided, and that the foundation of the suit is the official bond given by the appointee for the faithful discharge of the duties of the office. Breaches of the conditions of the bond having been committed, as alleged, the United States commenced an action of debt in the District Court against the principal and his sureties, claiming the penalties of the bond. Service was made; and the defendants appeared, and pleaded (1.) non est factum; (2.) performance; (3.) set-off in the sum of $8,203.06 for money before that time advanced, paid, laid out, and expended by the defendant to and for the use of the plaintiffs, and at their instance, for the work and labor of the defendant and his servants and deputies, done and performed by him, as such collector, for the plaintiffs, and at their instance and request. Claim is also made for the same sum in the same plea, upon the ground that it was due and owing to the defendant from the plaintiffs for commissions, expenses, and charges for extra services of himself and his servants, done and performed at the special instance and request of the plaintiffs. Issue was joined by the plaintiffs upon the first plea; and to the second the plaintiffs reply, and deny that the defendant has well and truly performed the conditions of the writing obligatory, and assign the following breaches: (1.) That he has not accounted for and paid over to the United States all the public moneys which came into his hands, in compliance with the orders and regulations of the Secretary of the Treasury. *561 (2.) That he did not faithfully execute and perform all the duties of his office, as more fully set forth in the replication. Both parties, having waived a trial by jury, went to trial before the court without a jury; and the finding and judgment were for the plaintiffs, in the sum of $11,517.63. Exceptions were filed by the defendants; and they sued out a writ of error, and removed the case into the Circuit Court. Due settlement of the collector's accounts had been made by the accounting officers of the treasury; and the plaintiffs, to support the issues on their part, introduced the certified transcript of the same, to which the defendants objected: but the court overruled the objection, and admitted the evidence; and the defendants excepted. Said transcript included the statement of differences, and showed that the sum of $20,120 was the balance due from the collector. Collections, it seems, had been made by the officer, for the preceding year, amounting to $77,702.08; and it did not appear that he had been paid during that period any extra allowance above his salary and commissions, nor that any of the charges claimed as set-off had been credited in the settlement of his accounts. Apart from that, it was admitted by the plaintiffs that the defendants had paid into court the sum of $11,435.17, which is to be deducted from the balance found due from the defendants by the accounting officers of the treasury. Set-offs were claimed by the defendants, as follows: (1.) $5,010 paid by the collector, during the summer and fall of 1866, to sixteen deputy-collectors employed by him during that period in his district. (2.) $648 paid for the hire of clerks in his office during the quarter ending Sept. 30 of the same year. (3.) $1,100 paid for hire of clerks in making out his accounts and returns during that and the succeeding year. Nothing being alleged to the contrary, it will be assumed that those several claims had been duly presented to the proper officers of the treasury, and that they had been finally disallowed. They were separately offered in evidence at the trial; and the ruling of the court in each instance was, that the same was properly rejected by the accounting officers of the treasury. Seasonable exception to the ruling of the court was taken by *562 the defendants. Appearance was entered by each party in the Circuit Court, and they were both there heard; and the Circuit Court affirmed the judgment of the District Court, and the defendants sued out the present writ of error. Errors have not been assigned, as required by the rules of the court; but the course of the argument, as exhibited in the printed brief, warrants the conclusion that the only errors relied on are the rulings of the District Court, that the accounts filed in set-off were properly rejected by the accounting officers of the treasury. Defendant litigants had no right to file accounts in set-off at common law; nor did they ever have that right until the passage of the statute of 2 Geo. II., ch. 24, sect. 4, which enacted, in substance and effect, that, where there were mutual debts between the plaintiff and the defendant, one debt may be set against the other, and that such matter may be given in evidence under the general issue, or may be pleaded in bar, so that notice shall be given of the sum or debt intended to be offered in evidence. Chit. on Contr. 948. Questions of the kind, where the United States are plaintiffs, must be determined wholly by the acts of Congress, as the local laws have no application in such cases. United States v. Eckford, 6 Wall. 490; United States v. Robeson, 9 Pet. 324; Conklin, Treat. 127. Judgment in such suits is required to be rendered at the return term, unless the defendant shall, in open court, make oath or affirmation that he is equitably entitled to credits which had not been, previous to the commencement of the suit, submitted to the consideration of the accounting officers of the treasury and rejected, and specifying each particular claim so rejected in the affidavit. 1 Stat. 515; United States v. Giles, 9 Cranch, 236; 5 Stat. 83. Sect. 4 of the same act provides, that, in suits between the United States and individuals, no claim for a credit shall be admitted at the trial, except such as shall appear to have been submitted to the accounting officers of the treasury for their examination, and to have been by them disallowed, unless it shall appear that the defendant, at the time of the trial, is in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit *563 at the treasury by absence from the United States, or some unavoidable accident. Claims for credit in suits against persons indebted to the United States, if it appears that the claim had previously been presented to the accounting officers of the treasury for their examination, and had been by them disallowed in whole or in part, may be admitted upon the trial of the suit; but it can only be admitted as a claim for credit, and must be proved to be just and legal before it can be allowed. Equitable claims for credit, if falling within the latter clause of the fourth section of that act, may be admitted at the trial of such a suit, though never presented to and disallowed at the treasury; but the presentation of such a claim will amount to nothing, unless it is proved that the same is justly due to the claimant. Due returns, it seems, were made by the collector. It is not questioned that his accounts were regularly settled by the accounting officers of the treasury; nor is it suggested that due credit was not given to him for every thing which he could properly claim, except for the extra services and expenses charged in the accounts filed in set-off; and it appears that those accounts were duly presented to the accounting officers of the treasury, and were by them rejected before the suit was instituted. When the claims were offered, the court admitted the evidence; and the only complaint is, that the court ruled that the claims were properly rejected by the accounting officers of the treasury, which is the only question presented for decision. Independent of the second proviso to the section defining the compensation to be allowed to such collectors, it would be clear beyond every doubt that no claim of the kind could be allowed by any court, as appears from the acts of Congress upon the subject and the decisions of this court. Legislation upon the subject commenced with respect to collectors of the customs, but was ultimately extended to all executive officers with fixed salaries, or whose compensation was prescribed by law. Sect. 18 of the act of the 7th of May, 1822, provided that no collector, surveyor, or naval officer shall ever receive more than $400 annually, exclusive of his compensation as such officer, and the fines and forfeitures allowed by law for any service he may render in any other office or capacity. 3 Stat. 696. *564 Prior to that, the settled practice and usage were to require collectors to superintend lights and light-houses in their districts, and to disburse money for the revenue-cutter service. Services of the kind were charged as extra services, and extra compensation was in many cases allowed for such service, until Congress interfered, and by that act gave such officers a fixed compensation, subject to the provision that they should never receive more than $400, exclusive of the fixed compensation, and their due proportion of fines, penalties, and forfeitures. Officers not named in that act also received fixed salaries; and they, whenever they performed extra service under the direction of the head of a department, claimed extra compensation. Claims of the kind were in some instances disallowed; and in certain cases, where litigation ensued, it was decided by this court that such claims were a proper set-off to the money demands of the United States. Miner v. United States, 15 Pet. 423; Gratiot v. United States, id. 336; United States v. Ripley, 7 id. 18. Litigations of the kind became frequent; and Congress again interfered, and provided that no officer in any branch of the public service, or any other person whose salary or whose pay or emoluments is or are fixed by law and regulations, shall receive any extra allowance or compensation, in any form whatever, for the disbursement of public money or the performance of any other service, unless the said extra allowance or compensation be authorized by law. 5 Stat. 349. Since then many other acts of Congress have been passed upon the subject, of which one more only will be reproduced. Like the preceding act, it provides that no officer in any branch of the public service, or any other person whose salary, pay, or emoluments is or are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same shall be authorized by law; and the appropriation therefor is explicitly set forth that it is for such additional pay, extra allowance, or compensation. 5 Stat. 510; 9 id. 297, 365, 367, 504, 542, 543, 629; 10 id. 97-100, 119, 120. Compensation for extra services, where no certain sum is *565 fixed by law, cannot be allowed by the head of a department to any officer who has by law a fixed or certain compensation for his services in the office he holds, unless such head of a department is thereto authorized by an act of Congress; nor can any compensation for extra services be allowed by the court or jury as a set-off, in a suit brought by the United States against any officer for public money in his hands, unless it appears that the head of the department was authorized by an act of Congress to appoint an agent to perform the extra service, that the compensation to be paid for the service was fixed by law, that the service to be performed had respect to matters wholly outside of the duties appertaining to the office held by the agent, and that the money to pay for the extra services had been appropriated by Congress. Converse v. United States, 21 How. 470. None of the conditions precedent suggested existed in the case before the court; and it follows that no such allowance could have been made by the accounting officers of the treasury in settling the accounts of the principal defendant, unless the same had been previously approved by the Secretary of the Treasury, under the second proviso in the twenty-fifth section of the act prescribing the compensation to be allowed to the collectors of internal revenue. 13 Stat. 232. Authority is there given to the Secretary of the Treasury to make such further allowances to such collectors, from time to time, as may be reasonable; but the power to be exercised in that behalf is one vested in his discretion, both as to time and amount. He may make an allowance one year, and refuse it the next, or he may never make it at all, as to him may seem just and reasonable. No appeal lies from his decision in that regard, either to the accounting officers of the treasury or to the courts. Instead of that his decision is final, unless reversed by Congress. Judgment affirmed.

NO. 07-02-0418-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A AUGUST 28, 2003 ______________________________ NEDIEM MAHMOUD SAADEDDINE, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 163 RD DISTRICT COURT OF ORANGE COUNTY; NO. B010142-R; HONORABLE DENNIS POWELL, JUDGE _______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION Appellant Nediem Mahmoud Saadeddine appeals from a conviction and sentence in the 163 rd District Court of Orange County, Texas (the trial court), for aggravated sexual assault.  His appellate attorney has filed a brief indicating that in counsel’s opinion, the appeal is meritless.   See Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) .  In the introduction to the Anders brief, counsel recites that appellant was convicted of aggravated sexual assault.  In the Statement of the Nature and Result of the Case however, counsel states that appellant was indicted for the offense of burglary of a habitation.  The clerk’s record shows that appellant was indicted for an incident on or about September 20, 2000 .  Appellant’s brief recites that the burglary of a habitation occurred on September 27, 1997.  The brief recites that appellant pled guilty on April 11, 2001, while the reporter’s record shows that the guilty plea occurred on April 9, 2001.   The substantive portion of appellant’s brief is one page.  An additional page contains counsel’s certification that he has diligently reviewed the record, formed the opinion that the appeal is without merit, and that he has advised appellant of appellant’s rights.   Prior to concluding that an appeal is frivolous, appellate counsel must make a diligent and thorough evaluation of the case.   See McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 438, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988).   The appellate lawyer must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal.   Id .  If the attorney determines there are no arguments to be made on behalf of the client, the attorney is required to so advise the appellate court and seek leave to withdraw as counsel.   See id. at 438-439, 108 S.Ct. 1895. The brief filed on behalf of appellant does not show that counsel has fulfilled his duties to his client.  At a minimum, the brief demonstrates that counsel either has not exercised diligence in thoroughly researching and mastering the record, or has not exercised diligence in formulating and exhibiting in the appellate brief that he has researched and mastered the record. Counsel has set out his professional opinion that the appeal does not have merit.  He has not, however, filed a motion to withdraw.   This appeal is abated and the cause is remanded to the trial court.  Upon remand, the judge of the trial court is directed to replace appellant’s current counsel with new appellate counsel.   The trial court is directed to: (1) conduct any necessary hearings; (2) if any hearings are held, to make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk’s record; (3) enter any orders appropriate; (4) cause any hearing proceedings to be transcribed and included in a reporter’s record; and (5) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk’s record or the reporter’s record.  In the absence of a request for extension of time from the trial court, the supplemental clerk’s record, reporter’s record, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than September 19, 2003. Per Curiam Do not publish.

728 F.2d 805 115 L.R.R.M. (BNA) 3325, 100 Lab.Cas. P 10,883 SOUTHERN MOLDINGS, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent. No. 81-1230. United States Court of Appeals,Sixth Circuit. Argued Jan. 16, 1984.Decided March 8, 1984. Jon C. Flinker (argued), Duvin, Flinker, & Cahn Co., Lee Hutton, Cleveland, Ohio, for petitioner. Elliott Moore, John Elligers (argued), Deputy Associate General Counsel, Ralph Simpson, National Labor Relations Board, Washington, D.C., for respondent. Before LIVELY, Chief Circuit Judge, EDWARDS, ENGEL, KEITH, MERRITT, KENNEDY, MARTIN, JONES, CONTIE, KRUPANSKY and WELLFORD, Circuit Judges. 1 MERRITT, Circuit Judge, delivering the opinion for the Court. 2 We voted to reconsider en banc this unfair labor practice case primarily to decide the question of whether NLRB v. Gissel Packing Co., 395 U.S. 575, 614, 89 S.Ct. 1918, 1940, 23 L.Ed.2d 547 (1969), should be interpreted to require the National Labor Relations Board, prior to the issuance of a bargaining order, to make explicit findings and conclusions respecting the inadequacy of a new election or other less onerous remedies for correcting unfair labor practices committed by an employer during a union election campaign.1 We now conclude that we lack jurisdiction of this question under Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982), and section 10(e) of the National Labor Relations Act, 29 U.S.C. Sec. 160(e) (1976), because this specific issue was not raised before the Board prior to its decision, or upon reconsideration.2 The jurisdictional issue was not raised by the NLRB before the panel of this Court whose decision, 715 F.2d 1069 (6th Cir.1983), was vacated by our en banc order. We, therefore, must pretermit the question that we granted an en banc hearing to decide. For the same basic reasons stated by the panel decision, we find substantial evidence in the record to support the Board's unfair labor practices findings and conclusions. We also find that there is evidence from which the NLRB could find that the general test stated by the Supreme Court in Gissel for the entry of a bargaining order is satisfied.3 Accordingly, the Board's order is enforced. 3 KRUPANSKY, Circuit Judge, concurring in part and dissenting in part. 4 I agree with the majority that pursuant to Woelke Romero Framing, Inc. v. N.L.R.B., 456 U.S. 645, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982), this court is without jurisdiction to review the Board's compliance with the Supreme Court mandate enunciated in N.L.R.B. v. Gissel, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) in imposing the contested bargaining order in this case because the petitioner failed to assert this issue during the proceedings before the Board. I further concur with the majority that this Court has jurisdiction to review the Board's determination that Southern Moldings Inc. committed the unfair labor practices with which it was charged and that the administrative record incorporates substantial evidence to support the Board's conclusion that Southern Moldings Inc. violated the Act. 5 I write separately because I am not in accord with the obiter dictum contained in the majority opinion's penultimate sentence namely that the United States v. Gissel criteria was satisfied. Having initially concluded that this very issue was beyond the court's authority to review in light of the pronounced jurisdictional defect it is inappropriate for the court to thereafter comment on the merits of the assignment of error which was improperly submitted for appellate review. 6 WELLFORD, Circuit Judge, concurring in part and dissenting in part. 7 I concur with the conclusion set out by Judge Merritt that Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982), neither argued before nor called to the attention of the panel which considered this case prior to the en banc hearing, precludes our consideration of what I believe to be inadequate and insufficient findings and conclusion of the Board to justify the extraordinary remedy of ordering petitioner to bargain with the intervenor union, which lost the election in controversy. 8 To the extent the Board considered the failure of the petitioner to raise wages of its employees while the election campaign was in progress, but later did so consistent with petitioner's commitment, as a basis for the bargaining order, I must respectfully dissent. I also cannot agree that the "possibility of erasing the effects of past practices and of ensuing a fair election (or a fair rerun) by the use of traditional remedies ... is slight" in this case. NLRB v. Gissel, 395 U.S. 575, 614, 89 S.Ct. 1918, 1940, 23 L.Ed.2d 547 (1969) (as cited in footnote 1 of the majority opinion). Rather, for the reasons set out in my dissent in the panel opinion in this case filed August 23, 1983, I would find no substantial basis for concluding that a fair election cannot be held utilizing traditional Board remedies. 1 In Gissel, the Court referred to the findings necessary for the issuance of such an order only in general language: "In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. 395 U.S. at 614-15, 89 S.Ct. at 1940-41. 2 In Woelke, Justice Marshall wrote for a unanimous court: [T]he Court of Appeals was without jurisdiction to consider that question [a picketing issue]. The issue was not raised during the proceedings before the Board, either by the General Counsel or by Woelke. Thus, judicial review is barred by Sec. 10(e) of the Act, 29 U.S.C. Sec. 160(e), which provides that "[n]o objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances...." Woelke could have objected to the Board's decision in a petition for reconsideration or rehearing. The failure to do so prevents consideration of the question by the courts. 456 U.S. at 665-66, 102 S.Ct. at 2082-83. 3 The general test is stated in note 1, supra

759 F.2d 474 MOLEX, INCORPORATED, Plaintiff-Appellee,v.James NOLEN and James Nolen d/b/a Western Cable, Defendant-Appellant. No. 84-1332. United States Court of Appeals,Fifth Circuit. May 6, 1985. Mark A. Nacol, John G. Tatum, Dallas, Tex., for defendant-appellant. Locke, Purnell, Boren, Laney & Neely, C. Michael Moore, Nancy A. Strehlow, Dallas, Tex., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of Texas. Before GEE, POLITZ and WILLIAMS, Circuit Judges. PER CURIAM: 1 Nolen appeals the award of an injunction against him, advancing various contentions that we discuss below. Facts 2 Molex Incorporated, a Delaware corporation with its principal place of business in Illinois, makes cable assemblies. In 1978, Molex hired James Nolen, a Texas citizen, as its sales representative in the Dallas-Fort Worth area. Tandy Corporation is a large electronics firm located in that area. Nolen's job required him to try to sell Molex's cable assemblies to Tandy, which he succeeded in doing. Once Tandy was established as a Molex customer, Nolen, as the Molex sales representative responsible for the Tandy account, was also responsible for maintaining a good relationship between the two companies. 3 In mid-1980, Molex began to have problems delivering its cable assemblies to Tandy. In November of that year, Nolen had formed a company first called Western Controls, and later called Western Cable (Western). Through Western, Nolen sold cable assemblies directly to Tandy--assemblies made from Molex parts. Nolen paid for the parts with checks signed "James Baucom." There was no "James Baucom" at Western; Nolen admits to forging all of these signatures. Nolen also used the name "James Baucom" when selling the Western cable assemblies to Tandy. These (and other) deceptions were necessary because Nolen had omitted to resign from Molex before beginning his career as the sole proprietor of Western. His double life thus enabled Nolen to receive a commission from Molex for the Molex parts he sold to himself as Western, and then to receive the profits from the cable assemblies he sold to Tandy; his knowledge of Molex's pricing made it possible for Nolen (acting as Western) to undersell Molex. On occasion, Nolen charged Molex for business lunches with his doppelganger James Baucom; "Baucom" was leasing cable manufacturing tools from Molex. 4 In July 1981, having established Western as Tandy's cable assembly supplier, Nolen left Molex. He continued to purchase Molex parts, and to sell cable assemblies to Tandy, as "Baucom;" between November 1980 and December 1983, Nolen's sales of cable assemblies totalled $1.7 million. 5 When Molex discovered Nolen's perfidy, it brought an action against him alleging diversion of corporate opportunity, unfair competition, and interference with contractual and business relationships. Molex sought money damages and an injunction barring Nolen from dealing with Molex customers and from disclosing Molex information or parting with Molex property. Nolen defended this action by various means, means that included perjury; he now admits to having lied at his deposition. The case was tried to a jury. It found for Molex and awarded Molex both actual and exemplary damages. Molex is unlikely to collect these damages because Nolen has taken voluntary bankruptcy. The trial court entered judgment on the jury's verdict and issued an injunction permanently barring Nolen from selling cable assemblies to Tandy. Nolen now appeals both the judgment and the injunction. Analysis 6 Nolen first contends that the trial court's injunction is impermissibly vague, overbroad, and beyond the scope of the pleadings. Except in one respect, this contention is meritless. Nolen's first assertion of vagueness is grounded on the trial court's failure to define "cable assemblies." No definition was necessary; Nolen knows full well what cable assemblies are. The trial court was required simply to "frame its injunction so that those enjoined will know what conduct the court has prohibited." Meyer v. Brown & Root Construction Co., 661 F.2d 369, 373 (5th Cir.1981), citing International Longshoremen's Assoc. v. Philadelphia Marine Trade Assoc., 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967). This the trial court did. 7 Nolen argues that the injunction is overbroad because it is not limited to the specific Tandy divisions to which Nolen sold Molex cable assemblies. He provides no authority for this argument, probably because there is none. Texas courts have routinely permitted injunctions to issue barring employees from soliciting the customers of their former employers; see, e.g., Stocks v. Banner American Corp., 599 S.W.2d 665, 668 (Tex.Civ.App.--Texarkana 1980, no writ); Johnson v. American Speedreading Academy, Inc., 526 S.W.2d 163, 166 (Tex.Civ.App.--Dallas 1975). This Court approved such an injunction in Zoecon Industries v. American Stockman Tag Co., 713 F.2d 1174, 1180 (5th Cir.1983). The trial court was thus fully within its discretion in barring Nolen from selling cable assemblies to Tandy, indubitably a customer of Nolen's former employer. 8 Nolen also argues that the injunction is overbroad because it is not limited to those sorts of cable assemblies manufactured by Molex. He cites Norton v. Integral Corp., 584 S.W.2d 932, 935 (Tex.Civ.App.--Austin, 1979), in support of this argument. In Norton, however, the language held overbroad was "electrical equipment in the center pivot sprinkler industry," 584 S.W.2d at 935. The Norton court ordered it changed to "cable con." "Cable con" is obviously no more specific, and no narrower, than "cable assembly." Nolen's argument is therefore without supporting authority; it was not error for the trial court to bar him from selling "cable assemblies."Nolen further contends that the injunction should be lifted because it deprives him of a livelihood and because it is against the public interest. Both contentions are frivolous, and patently unworthy of serious consideration. It is also unnecessary to discuss whether (or how) the injunction goes beyond the scope of the pleading: the assertion appears only in the caption to this section of Nolen's brief and is not mentioned at all in the text. 9 We do find merit in one complaint of vagueness: the injunction forbids Nolen to deal in various respects with "Tandy Corporation or any affiliate or subsidiary of Tandy Corporation...." The phrase is mildly ambiguous; we reform it to read "or any affiliate or subsidiary of Tandy Corporation as of the date of this judgment, March 9, 1984." Except in this minor respect, we conclude that the trial court's injunction was neither vague nor overbroad, and no reasonable reader of the record could conclude that it went beyond the scope of the pleadings. 10 Nolen next assigns as error the trial court's grant of a permanent injunction; he contends that the injunction should have been limited in duration. The only relevant authority cited in connection with this contention is Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763 (1958). Nolen imaginatively construes Hyde to mandate the grant of a limited, rather than a permanent, injunction whenever the defendant has requested one. Both common sense and the actual language of Hyde refute this novel construction: 11 The trial judge upon proper findings has correctly determined that this is a case for injunctive relief. He has ordered that the usual equitable order issue, e.g. the perpetual injunction. It would seem to follow that if an injunction of limited duration be substituted therefore ..., an abuse of discretion in issuing the perpetual injunction would have to be shown. No such showing was made in this case. 12 314 S.W.2d at 780-81 (citation omitted) (emphasis added). Nolen has made no such showing either. His conduct is indistinguishable in any relevant aspect from that of the defendants in Zoecon and in Elcor Chemical Corp. v. Agri-Sul, Inc., 494 S.W.2d 204 (Tex.Civ.App.--Dallas 1973, writ ref'd n.r.e.); permanent injunctions were upheld in both cases. These cases, and the absence of countervailing authority, clearly indicate that the trial court was well within its authority in granting a permanent injunction to Molex. 13 Nolen's last attack on the injunction is similarly baseless; his assertion that the injunction was issued without a finding of irreparable harm is simply wrong. The trial court explicitly made such a finding. 14 Nolen makes various assignments of error in connection with the trial court's finding of irreparable harm. The first, that there was no such finding, is refuted above. The last, that the injunction is defective absent a finding of irreparable harm, is irrefutable as a general proposition but inapplicable to this case. The rest are not entirely clear, but seem to allege first, that no evidence existed to support a finding of irreparable harm, and second, that the issue of irreparable harm should have been submitted to the jury. The first contention is frivolous. Although Nolen acknowledges irreparable harm to be a question of fact, he appears to believe that our review of the trial court's finding of this fact is governed by something other than the clearly erroneous standard of Rule 52(a), Fed.R.Civ.P. His belief is itself clearly erroneous. Bryan v. Kershaw, 366 F.2d 497, 499 (5th Cir.1966), cert. denied, 386 U.S. 959, 87 S.Ct. 1030, 18 L.Ed.2d 108 (1967). The trial court's finding is clearly correct. Under Texas law, the irreparable harm required for a permanent injunction is defined as "an injury which cannot be compensated or for which compensation cannot be measured by any certain pecuniary standard." Parkem Industrial Services, Inc. v. Garton, 619 S.W.2d 428, 430 (Tex.Civ.App.--Amarillo 1981). Nolen's bankruptcy meets the first prong of his definition; Texas cases construe "cannot be compensated" to include situations in which the "defendant is incapable of responding in damages." R.H. Sanders Corp. v. Haves, 541 S.W.2d 262, 265 (Tex.Civ.App.--Dallas 1976, no writ), citing County of Harris v. Southern Pacific Transportation Co., 457 S.W.2d 336, 339 (Tex.Civ.App.--Houston 1970, no writ); Grayson Enterprises, Inc. v. Texas Key Broadcasters, Inc., 388 S.W.2d 204, 208 (Tex.Civ.App.--Eastland 1965, no writ). 15 Nolen's theft of Molex's customer Tandy meets the second prong of the definition. In Jeter v. Associated Rack Corp., 607 S.W.2d 272 (Tex.Civ.App.--Texarkana 1980), cert. denied, 454 U.S. 965, 102 S.Ct. 507, 70 L.Ed.2d 381 (1981), the court affirmed permanent injunctive relief on facts very similar to these, stating "[i]t is our further opinion that future damages would have been difficult if not impossible to ascertain and thus the trial court was justified in granting injunctive relief." 607 S.W.2d at 278. Although they do not contain language paralleling that of Jeter, cases such as Zoecon, Hyde, and Elcor, in which permanent injunctive relief was affirmed, plainly support the proposition that irreparable harm may be shown in customer theft situations. Given these authorities, and the peculiarly aggravated circumstances of this case, it cannot be said that the trial court's finding of irreparable harm was clearly erroneous. 16 Nolen next complains that the issue of irreparable harm should have been submitted to the jury; as a question of fact it certainly could have been. Miller v. Lone Star Tavern, Inc., 593 S.W.2d 341, 344 (Tex.Civ.App.--Waco 1979). Our review of the record reveals, however, that Nolen neither requested submission of the issue to the jury nor objected to the absence of the issue in the special interrogatories given to the jury. Rule 49(a), Fed.R.Civ.P., therefore bars Nolen's assignment of error on this point. That rule provides as follows: 17 The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict. 18 The Rule is unambiguous and this Court has given its words their plain meaning. See, e.g., John R. Lewis, Inc. v. Newman, 446 F.2d 800, 804-05 (5th Cir.1971). Under Rule 49(a) and our cases construing it, Nolen waived his right to a jury trial on the issue of irreparable harm. 19 Nolen's attack on the sufficiency of the evidence supporting the jury findings against him is completely without merit. The standard of review used by this Court to evaluate allegations of insufficient evidence was explained in a recent case: 20 The role of this Court is not to adjudicate the facts de novo, nor is it our task to second-guess the conclusion of the members of the jury who had the important opportunity to evaluate the demeanor of the witnesses. The appellants urge that there is substantial evidence to support judgment in their favor. This may or may not be the case, but the contention is not germane. The record shows clear and substantial evidence to support the jury's findings for appellee. The facts and inferences do not "point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict...." Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). The trial judge therefore acted properly in denying the motion for directed verdict and in entering judgment consistent with the jury's verdict. 21 Thomas v. City of New Orleans, 687 F.2d 80, 83 (5th Cir.1982); see also NCH Corp. v. Broyles, 749 F.2d 247 (5th Cir.1985). Nolen points to no specific portions of the record as supporting his contentions. Our review of it reveals that in no respect does it fail to support the jury findings. Those findings, and the relevant evidence are summarized as follows. 22 a) Nolen acquired trade secrets or confidential business information from Molex. The information Nolen acquired from Molex about Tandy and other Molex customers falls within the category of either trade secrets or confidential information, as does the information he acquired about Molex's pricing. Zoecon, Hyde, Elcor, supra. 23 b) Nolen misappropriated and used Molex's trade secrets or confidential business information for his own use or benefit. Nolen attacked this finding by arguing that he didn't know the information was secret. The simple answer to Nolen's argument is that the jury was not required to believe him and did not. 24 c) Nolen wrongfully disclosed Molex's trade secrets or confidential information to others. Nolen shared his information about Tandy with his employees at Western. 25 d) Nolen's misappropriation and use of Molex's trade secrets or confidential information was the proximate cause of loss to Molex and benefit to Nolen. Molex lost Tandy as a customer, and Nolen gained Tandy as a customer. 26 e) Nolen had a fiduciary relationship with Molex. Under Texas law, "[t]he term includes those informal relations which exist whenever one party trusts and relies upon another." Kinzbach Tool Co., Inc. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 512-13 (1942). The Texas Supreme Court held a salesman to have a fiduciary relationship with his employer in Kinzbach. Molex obviously trusted and relied on Nolen, as the sales representative responsible for the Tandy account, in its dealings with Tandy. 27 f) Nolen breached his fiduciary duty to Molex. On this record, it would have been astounding had the jury found otherwise. 28 g) Nolen's breach of his fiduciary duty to Molex during the term of his employment with Molex was the proximate cause of loss or damage to Molex, or benefit or value to Nolen. Again, this proposition is too obvious to require discussion. 29 h) The sum of $112,500 would reasonably compensate Molex for its loss or for Nolen's profits. The trial court correctly instructed the jury that it could award damages to Molex on the "reasonable royalty" theory. See Universal Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 536-39 (5th Cir.1974); Sikes v. McGraw Edison Co., 665 F.2d 731, 737 (5th Cir.), cert. denied, 458 U.S. 1108, 102 S.Ct. 3488, 73 L.Ed.2d 1369 (1982). Nolen's total sales were $1.5 million; the jury awarded Molex 7 1/2 percent of that amount, or $112,500. This award was consistent with expert testimony presented by Molex; it was also approximately equal to the total amount actually received by Nolen from Molex and Western during the relevant period. There was thus ample evidence to support the award. 30 i) Nolen's actions were maliciously or wantonly or oppressively done. Nolen's assertion that he acted in good faith merits no discussion. 31 j) Molex should be awarded $250,000 as exemplary damages for Nolen's actions. In Russell v. Truitt, 554 S.W.2d 948 (Tex.Civ.App.--Ft. Worth 1977, writ ref'd n.r.e.), an action for breach of fiduciary duty, the court affirmed exemplary damages of $55,000, nearly seven times the actual damages of $8,000. In so doing, the court stated,The question of excessiveness of exemplary damages depends on the facts of the particular case and is largely within the discretion of the jury. Among the factors to be considered are "the nature of the wrong, the character of the conduct involved, the degree of culpability of the wrongdoer, the situation and sensibilities of the parties concerned, and the extent to which such conduct offends a public sense of justice and propriety." Cain v. Fontana, 423 S.W.2d 134, 139 (Tex.Civ.App.--San Antonio 1967, writ ref'd n.r.e.); Schutz v. Morris, 201 S.W.2d 144, 147 (Tex.Civ.App.--Austin 1947, no writ). 32 554 S.W.2d at 955. The award in this case, twice the actual damages, is certainly not so large as to "indicate that it is a result of passion, prejudice or corruption, or that evidence has been disregarded." Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380, 389 (Tex.Civ.App.--Corpus Christi 1976, writ ref'd n.r.e.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977). It is affirmed. Conclusion 33 The judgment of the trial court is modified in the respect noted at page 5 and, as modified, is 34 AFFIRMED.

87 F.3d 676 UNITED STATES of America, Plaintiff-Appellee,v.Roland C. REYES, Defendant-Appellant. No. 95-50637. United States Court of Appeals,Fifth Circuit. June 26, 1996. Richard L. Durbin, Jr., Asst. U.S. Attorney, Office of the United States Attorney, San Antonio, TX, for Plaintiff-Appellee. Philip J. Lynch, Office of the Federal Public Defender, San Antonio, TX, for Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas. Before GARWOOD, HIGGINBOTHAM and BENAVIDES, Circuit Judges. GARWOOD, Circuit Judge: 1 Defendant-appellant Roland C. Reyes (Reyes) appeals the denial of his motion to dismiss the indictment charging him with operating a motor vehicle while intoxicated at Kelly Air Force Base (Kelly AFB) in violation of 18 U.S.C. § 13, incorporating section 49.04 of the Texas Penal Code. Facts and Proceedings Below 2 Reyes is charged with driving while intoxicated at Kelly AFB, on or about January 31, 1994. Reyes, a civilian employee of the Department of the Air Force who works at Kelly AFB, argues that his prosecution is barred by principles of double jeopardy because he has already been "punished" by a three-day, unpaid suspension from work pursuant to Department of the Air Force regulations and 5 U.S.C. §§ 7501-7543.1 The magistrate judge denied the motion to dismiss the indictment on the ground that the suspension did not constitute punishment under the Double Jeopardy Clause, precluding any punishment imposed by the criminal proceeding from being a second punishment for double jeopardy purposes. The district court denied Reyes' appeal of the denial of his motion to dismiss. Reyes now appeals to this Court. Discussion 3 This Court has jurisdiction over an interlocutory appeal from a refusal to dismiss an indictment on grounds of double jeopardy. United States v. Perez, 70 F.3d 345, 346-47 (5th Cir.1995). The Double Jeopardy Clause states: "nor shall any person be subject to the same offense to be twice put in jeopardy of life or limb." U.S. CONST.AMEND. V. It provides protection from both multiple prosecutions and multiple punishments for the same offense. Id. at 348. Only the protection from multiple punishments is before us in the instant case. 4 The Supreme Court has held that certain civil sanctions may constitute "punishment" under the Double Jeopardy Clause and trigger its protection. United States v. Halper, 490 U.S. 435, 446-48, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487 (1989). Whether such a civil sanction is punishment within the meaning of the Double Jeopardy Clause may depend upon the purposes of the civil sanction. E.g., id. In Halper, the Court held that if either retribution or deterrence is a purpose of such a civil sanction, then it is punishment. Halper, 490 U.S. at 446-50, 109 S.Ct. at 1901-02.2 We refer to this purpose-oriented test as the Halper punishment test. Reyes argues that the imposition of a criminal punishment for his drunk driving would be a second punishment prohibited by the Due Process Clause pursuant to the Halper punishment test because his suspension from work was for deterrent or retributive purposes, not for any remedial purpose. The government does not essentially dispute that the suspension was imposed, at least in part, for purposes of deterrence, to deter Reyes, or other employees at the base, from similar on-base conduct.3 5 The fact that the government suspended Reyes at least partially for a deterrent purpose does not end our inquiry. The question facing us, which is one of first impression in this Circuit, is whether literal application of the Halper punishment test is appropriate in the context of government-imposed employee discipline of a type which an ordinary private employer generally could lawfully impose without invoking the machinery of the sovereign.4 In other words, does this kind of government-imposed employee discipline constitute punishment for double jeopardy purposes if its goal is employee deterrence? We could answer negatively for two possible reasons, either (1) even if the suspension was imposed for a deterrent, and hence under Halper a punitive, purpose, such employee discipline does not constitute punishment for purposes of the Double Jeopardy Clause; or (2) Halper 's method of defining punishment is unworkable in the context of this sort of employee discipline.5 Because we hold that this character of employee discipline, even where it has a deterrent purpose, is not punishment under the Double Jeopardy Clause, we need not determine whether the Halper method for defining punishment would be appropriate in this context. 6 The Double Jeopardy Clause is a "restraint on governmental power." United States v. Sanchez-Escareno, 950 F.2d 193, 197 (5th Cir.1991), cert. denied 506 U.S. 841, 113 S.Ct. 123, 121 L.Ed.2d 78 (1992). "In order for the Double Jeopardy Clause to have any application, there must be actions by a sovereign, which place an individual twice in jeopardy. The Double Jeopardy Clause does not apply to actions involving private individuals." United States v. Beszborn, 21 F.3d 62, 67-68 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 330, 130 L.Ed.2d 288 (1994). Thus, we have applied the Halper punishment test to civil sanctions imposed by the government when acting in its capacity as sovereign. E.g., Perez, 70 F.3d at 348 (property forfeiture); United States v. Tilley, 18 F.3d 295, 298-301 (5th Cir.1994) (forfeiture of illegal drug proceeds), cert. denied --- U.S. ----, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994); Woods, 949 F.2d at 176 (placing an entity in receivership); see also Sanchez-Escareno, 950 F.2d at 200 (noting that Halper punishment test would apply to civil fines). And we have declined to apply the Halper punishment test to civil sanctions imposed by a governmental entity, the Resolution Trust Corporation, acting in its "unique non-governmental role" as receiver of failed financial institution-instead of in its role as sovereign. Beszborn, 21 F.3d at 68 (holding Double Jeopardy Clause inapplicable); see also United States v. Heffner, 85 F.3d 435, 438-39 (9th Cir.1996) (adopting Beszborn reasoning). Thus, if the government was acting in a role other than as sovereign in its suspension of Reyes, and was doing no more than a typical private employer generally could lawfully do without invoking the machinery of the sovereign, we will not apply the Halper test because the Double Jeopardy Clause is inapplicable. 7 There is ample support for constitutionally distinguishing government acting as employer from government acting as sovereign. This Court has noted that "[t]he role of the Government as an employer toward its employees is fundamentally different from its role as sovereign over private citizens generally." Bush v. Lucas, 647 F.2d 573, 576 (5th Cir.1981), aff'd by 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). The Supreme Court has differentiated between governmental actions taken as sovereign and as employer. In Connick v. Myers, 461 U.S. 138, 146-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983), for example, the Court made it clear that the First Amendment did not protect governmental employees from even unreasonable adverse employment actions based on speech unrelated to a public concern. Although the government acting in its role as sovereign may not punish a private citizen for speech it dislikes, the government acting as employer may punish its employees for the same speech if it is not of public concern. See id. Similarly, governmental searches and seizures are held to a less stringent standard under the Fourth Amendment when conducted in the government's role as employer than when made in its role as sovereign. See O'Connor v. Ortega, 480 U.S. 709, 721-27, 107 S.Ct. 1492, 1500-02, 94 L.Ed.2d 714 (1987) (plurality opinion) (rejecting the requirement of probable cause, which is necessary for searches as sovereign, and applying a reasonableness standard to governmental employer's search); see also National Treasury Employees Union v. Von Raab, 489 U.S. 656, 669-72, 109 S.Ct. 1384, 1393-94, 103 L.Ed.2d 685 (1989) (noting that certain forms of public employment diminish expectations of privacy and subject governmental employees to routine personal searches). 8 We recognize that the government even in its capacity as employer is nevertheless subject to certain constitutional restrictions that are inapplicable to the private employer. For example, the governmental employer is constitutionally prohibited from discriminating on grounds of race. Likewise, the governmental employer is subject to certain constitutional due process restrictions in terminating employees having a property interest in their positions, restrictions that are not constitutionally imposed on the private employer. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). There are, of course, other examples. See, e.g., Von Raab; Ortega. These restrictions, however, protect the governmental employee from certain adverse employment actions by his employer, they do not involve any characterization of such adverse actions as "punishment." If these restrictions are transgressed, the employee's remedy is to have the adverse action set aside, or to assert a cause of action under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), it is not to preclude subsequent criminal prosecution for the same conduct.6 The interests these restrictions protect are not the same as or even remotely analogous to the interests that the Double Jeopardy Clause protects. We conclude that these constitutional restrictions on governmental action in its capacity as an employer are not a persuasive basis on which to hold that "punishment" for Double Jeopardy Clause purposes embraces adverse employment action taken by the government in its capacity as employer, rather than as sovereign, particularly where, as here, the action is of a kind a typical private employer generally could lawfully take without invoking the machinery of the sovereign. To construe the Double Jeopardy Clause to include this sort of employee discipline as "punishment" would confer on governmental employees rights against subsequent criminal prosecution--certainly the central thrust of the Double Jeopardy Clause--that private employees do not have. Such unequal protection from criminal prosecution is inconsistent with all our traditions. 9 We also note that the Framers' intent does not support reading the Double Jeopardy Clause to prohibit a criminal prosecution because such employee discipline has been meted out by a governmental employer. Courts may look to the common law to determine what the Double Jeopardy Clause means by "punishment." See Ex parte Lange, 85 U.S. (18 Wall.) 163, 170, 21 L.Ed. 872 (1873) (noting that salutary principles of common law have been embodied in the Constitution); United States v. Jenkins, 490 F.2d 868, 873 (2d Cir.1973) (Framers intended Double Jeopardy Clause to import common law protections into Constitution), aff'd, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). Colonial lawyers, including the Framers, widely relied on treatises by Sir Edward Coke and Sir William Blackstone for their understanding of English common law. Jay A. Sigler, Double Jeopardy: The Development of a Legal and Social Policy 16 (1969). According to Coke, the double jeopardy doctrine was "clearly delineated as a purely criminal concept serving as a protection against the state...." Id. at 19. Similarly, Blackstone interpreted the double jeopardy protection to apply only to felonies. See id. at 20. It seems evident that neither Coke nor Blackstone envisioned employee discipline as falling under the protection of double jeopardy. Furthermore, the discussions in the House regarding the wording of the Double Jeopardy Clause only considered actions by the government as sovereign. Id. at 30 (citing 1 Annals of Cong. 753). And the Senate initially adopted a clause applying only to "public prosecution." Id. at 31. Though the "public prosecution" language was dropped, neither the common law nor the legislative debates lead us to believe that the Framers conceived of governmental employee discipline as falling within the scope of the clause. 10 Reyes conceded at oral argument that the Double Jeopardy Clause does not apply to governmental employee discipline that is imposed for work-related misconduct. He argues, however, that governmental employer sanctions imposed for non-work-related conduct do trigger double jeopardy protections. Even if we interpret this argument as one that the government acts as sovereign (instead of as an employer) when it sanctions its employees for off-duty behavior, Reyes' constitutional claim still must fail. 11 The government was not able to suspend Reyes because it is sovereign; it was able to, and actually did, suspend him because it is his employer. The government acts as sovereign when it uses powers over which it has a monopoly. Generally speaking, any private employer could have suspended him for the same conduct and could have done so without invoking the machinery of the sovereign. See Oil Chem. and Atomic Workers Int'l Union, Local No. 4-228 v. Union Oil Co., 818 F.2d 437, 441 (5th Cir.1987) (rejecting argument that discharge of private employee for off-duty/off-premises illegal drug sales is an impermissible extension of employer's power over its employees); see also Bonet v. United States Postal Serv., 712 F.2d 213 (5th Cir.1983) (upholding discharge of postal worker based on charges of sexually indecent conduct with his minor stepdaughters). In temporarily suspending Reyes from its employment, the government acted in its capacity as his employer and exercised power that a private person (i.e. non-sovereign) could have used. For this reason, we reject Reyes' invitation to hold that a governmental employer's suspension from its employment without pay of one of its employees constitutes punishment under the Double Jeopardy Clause if that action is taken on account of the employee's non-work-related conduct.7Conclusion 12 For the foregoing reasons, we AFFIRM the denial of motion to dismiss the indictment and REMAND to the district court for trial on the merits.8 1 Reyes' privilege to drive on the base was also revoked for three days. This was not asserted as a basis for his motion to dismiss before the magistrate judge or the district court 2 Halper states "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment...." Halper, 490 U.S. at 448, 109 S.Ct. at 1902 (emphasis added). The Halper opinion then precedes to restate its holding, characterizing punishment as a sanction that "may not fairly be characterized as remedial, but only as a deterrent or retribution." Id. (emphasis added). The varying placement and inclusion of solely and only in these two statements is somewhat confusing. We recognize that Justice O'Connor reads Halper in accordance with the second iteration of the punishment test, which may be described as a "punitive purposes only" test. See Department of Revenue of Montana v. Kurth Ranch, --- U.S. ----, ----, 114 S.Ct. 1937, 1953, 128 L.Ed.2d 767 (1994) (O'Connor, J. dissenting). This Court, however, has relied on the first Halper statement of the test, characterizing the standard for determining whether a sanction is punishment as "whether the civil sanction serves solely a remedial purpose, or also a retributive or deterrent purpose." Perez, 70 F.3d at 348 (emphasis added) 3 The government argues that the suspension was to promote the efficiency of the service, but the only efficiency the government identifies was to be gained by deterring Reyes (and possibly others) from driving while intoxicated on Kelly AFB 4 This Circuit has applied the Halper punishment test outside the context of civil fines. See, e.g., United States v. Woods, 949 F.2d 175 (5th Cir.1991), cert. denied, 503 U.S. 961, 112 S.Ct. 1562, 118 L.Ed.2d 210 (1992). In Woods, the defendant-appellant argued that he was previously "punished" by the placement of his savings and loan association (S & L) in receivership. Woods, 949 F.2d at 176-77. This Court held that the S & L was placed in receivership to protect the United States Treasury from avoidable insurance losses by assuring proper bank management. Id. at 177. Because there was no retributive or deterrent purpose, there was no punishment. Id.; see also Bae v. Shalala, 44 F.3d 489, 493-95 (7th Cir.1995) (applying Halper punishment test to debarment from pharmaceutical industry); United States v. Hudson, 14 F.3d 536, 540 (10th Cir.1994) (applying Halper punishment test to debarment from banking industry); United States v. Newby, 11 F.3d 1143, 1144-45 (3d Cir.1993) (purporting to apply Halper in prison disciplinary context), cert. denied, --- U.S. ----, 115 S.Ct. 111, 130 L.Ed.2d 58 (1994) At least four circuits have refused to extend the Halper punishment test to certain other contexts. See United States v. Stoller, 78 F.3d 710, 717 (1st Cir.1996) (applying totality of circumstances test--instead of Halper test--to indefinite bar on having any association with the banking industry); United States v. Hernandez-Fundora, 58 F.3d 802, 806 (2d Cir.1995) (refusing to apply Halper punishment test to the prison disciplinary context), cert. denied, --- U.S. ----, 115 S.Ct. 2288, 132 L.Ed.2d 290 (1995); Garrity v. Fiedler, 41 F.3d 1150, 1152-53 (7th Cir.1994) (same), cert. denied, --- U.S. ----, 115 S.Ct. 1420, 131 L.Ed.2d 303 (1995); Manocchio v. Kusserow, 961 F.2d 1539, 1541-42 (11th Cir.1992) (holding that Halper analysis not applicable to administrative order barring doctor from participating in federal Medicare program and applying a totality of the circumstances test to find that the purpose of the exclusion was to protect the public). We have cited Hernandez-Fundora, Garrity, and Newby with approval in holding that a prison disciplinary proceeding resulting in loss of good time credits and transfer to a higher security facility does not constitute a double jeopardy bar to subsequent prosecution for the same conduct, but without expressly stating that this conclusion followed from an application of Halper or a determination that the Halper test was inapplicable. United States v. Galan, 82 F.3d 639 (5th Cir.1996). See also United States v. Brown, 59 F.3d 102, 103-05 (9th Cir.1995). 5 See, e.g., Kurth Ranch, --- U.S. at ----, 114 S.Ct. at 1948 (unworkable in tax context); see also Bennis v. Michigan, --- U.S. ----, ----, 116 S.Ct. 994, 1000, 134 L.Ed.2d 68 (1996) (noting that civil forfeiture serves a deterrent purpose "distinct from any punitive purpose"). Two circuits have held that specific government-imposed employee discipline failed to trigger double jeopardy protection. See United States v. Payne, 2 F.3d 706 (6th Cir.1993); United States v. Reed, 937 F.2d 575 (11th Cir.1991). The Reed Court distinguished Halper by noting that it is the rule for a rare case, and Payne relied exclusively on Reed. Payne, 2 F.3d at 710-11; Reed, 937 F.2d at 577. The defendant-appellants in both Reed and Payne were postal employees who were disciplined for on-the-job misfeasance. Payne, 2 F.3d at 707-08; Reed, 937 F.2d at 575-76. The Reed Court held that the employee's suspension served the "legitimate nonpunitive governmental objective[ ]" of vindicating the government's contract rights under the collective bargaining agreement. Reed, 937 F.2d at 578. It then went on to note that allowing employee disciplinary actions to constitute punishment under the Double Jeopardy Clause could lead to the "absurd result" of law-breaking employees forum-shopping (i.e. trying to get disciplined as an employee to avoid criminal prosecution). Id The implicit holding behind the explicit one in Reed is that governmental employer discipline is not necessarily punitive even if the discipline itself is intended to deter employee behavior. Once this is recognized, it is clear that Reed is no longer following the Halper method of defining punitive. See id. at 577-78 (failing to mention punitive goal of deterrence). Thus, we read these cases as authority for refusing to employ the Halper method for defining punitive to include all deterrent-based employee discipline. 6 Reyes never contested or challenged his suspension. Cf. United States v. Schinnell, 80 F.3d 1064 (5th Cir.1996) 7 This is one of those instances where, despite the absence of a relatively recent "spotted horse" case, our judicial intuition--or common sense--tells us that the result is foreordained. Often in such situations it is preferable to simply announce the conclusion, rather than to attempt to explicate its doctrinal basis. Sometimes, however, the latter exercise serves as useful check on potentially erroneous or simply reflexive intuition, particularly where some of the contextual principles appear to be in at least moderate flux. With these considerations in mind, we have written at some length on what others might consider to be a question with an obvious and simple answer 8 After the foregoing opinion was prepared and circulated, the Supreme Court handed down its opinion in the consolidated cases of United States v. Ursery and United States v. $405,089.23 In United States Currency, --- U.S. ----, 116 S.Ct. 2134, --- L.Ed.2d ---- (1996), holding that certain contested "in rem civil forfeitures" under 21 U.S.C. § 881(a)(6) & (7) and 18 U.S.C. § 981(a)(1)(A) were "neither 'punishment' [of the contesting owner of the forfeited items] nor criminal for purposes of the Double Jeopardy Clause." The Ursery opinion is not directly on point, as it gives heavy emphasis to the in rem nature of the forfeitures there at issue, and distinguishes Halper and Kurth Ranch largely because those cases involved in personam proceedings. Nevertheless, Ursery certainly cautions against an expansive reading of the Double Jeopardy Clause and reinforces our conclusion that it is not implicated here. For example, Ursery cites with approval the passage in Gore v. United States, 357 U.S. 386, 391-93, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958), which includes the reference to "double jeopardy" as a provision "which is rooted in history and is not an evolving concept." Ursery at * 8, at ----, 116 S.Ct. at ----. Also, Ursery refers to the line of cases exemplified by Halper as involving "potentially punitive in personam civil penalties such as fines," id. at * 8, at ----, 116 S.Ct. at ----, a description wholly consistent with the idea that a necessary, albeit not always sufficient, attribute of "punishment" for double jeopardy purposes is that it have been exacted by the government in the exercise of its sovereign coercive powers. Finally, we observe that Ursery plainly indicates that merely because a sanction may have a deterrent purpose does not necessarily mean that it is a punishment for double jeopardy purposes, particularly where it "has not historically been regarded as punishment," id. at * 16, at ----, 116 S.Ct. at ----, as is certainly the case with the employee suspension here

420 F.Supp.2d 601 (2006) Charles D. KENNARD, M.D., et al., Plaintiffs, v. INDIANAPOLIS LIFE INSURANCE COMPANY, et al., Defendants. No. Civ.A. 305CV1247-G. United States District Court, N.D. Texas, Dallas Division. March 9, 2006. *602 *603 *604 Eric Madden, Diamond McCarthy Taylor Finley Bryant & Lee, Edward Philip Bush, Locke Liddell & Sapp, M. David Bryant, Cox Smith Matthews Incorporated, Dallas, TX, for Plaintiffs. David A. Jones, Jessica Spangler Taylor, Akin Gump Strauss Hauer & Feld, San Antonio, TX, Cara Foos Pierce, Akin Gump Strauss Hauer & Feld, Charles W. Branham, III, Law Offices of Charles W. Branham III, Larry W. Johnson, Anna L. Raines, Cowles & Thompson, Dallas, TX, David M. Skeens, J. Michael Vaughan, Walters Bender Strohbehn & Vaughan, Kansas City, MO, Frank Johnson, Johnson Law Firm, San Diego, CA, for Defendants. MEMORANDUM OPINION AND ORDER FISH, Chief Judge. Before the court are (1) the motion of the defendant Indianapolis Life Insurance Company ("Indianapolis Life") to dismiss one claim against it; (2) the motion of the defendant xélan,[1] the Economic Association of Health Professionals ("Xelan") to dismiss, or in the alternative, to abate the action against it; and (3) the motion of the defendant Benjamin Daniel Kennedy, III ("Kennedy") to dismiss for lack of subject matter jurisdiction and for failure to state claims upon which relief can be granted. For the reasons stated below, the motions are denied. I. BACKGROUND This suit arises from the attempted creation of a tax shelter through the purchase of multiple insurance policies. Charles D. Kennard is a physician residing in Texas, Original Complaint ¶ 5, who organized a professional association known as Charles D. Kennard, M.D., P.A. Id. ¶ 6. This professional association established a defined benefit plan ("Charles D. Kennard, M.D., P.A. Defined Benefit Plan" or "Kennard DBP") to provide retirement benefits for its employees and their beneficiaries.[2]Id. ¶ 7. According to the complaint, Kennedy and Xelan, acting as agents for Indianapolis Life, approached Kennard and suggested establishing the Kennard DBP. Original Complaint ¶ 16. Wholly funded by life insurance policies, the Kennard DBP was represented as being in compliance with Section 412(i) of the Internal Revenue Code and would provide significant tax deductions. Id. ¶¶ 16, 18. Kennard purchased these policies from Indianapolis Life and subsequently paid more than $300,000 in premiums. Id. ¶¶19-20. In 2004, the Internal Revenue Service ("IRS") determined that the issuance of policies similar to Kennard's constitutes a "listed transaction" and would not qualify as a Section 412(i) plan. Original Complaint ¶ 23. In addition, the IRS found that certain transactions involving these policies were not allowable as tax deductions. Id. Beyond these issues, Kennard *605 discovered several other defects associated with the policies. See id. ¶¶ 24-26 (the policy jeopardizes the Kennard DBP's status as a Section 412(i) plan, the policy is subject to an "excessive surrender charge," and it has not been approved by the Texas Department of Insurance). On June 17, 2005, Kennard filed this suit, alleging three causes of action: rescission of the non-approved insurance policy; violations of Article 21.21 of the Texas Insurance Code; and violations of the Texas Deceptive Trade Practices Act ("DTPA"). Docket Sheet; Original Complaint. On August 22, 2005, Indianapolis Life and Xelan filed these motions to dismiss, followed approximately a month later by Kennedy's motion. Docket Sheet. II. ANALYSIS A. Kennedy's Motion to Dismiss or Abate Kennedy moves for dismissal under both 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), Kennedy argues that this court has no subject matter jurisdiction over this dispute because there is neither a ripe claim, nor federal question or diversity jurisdiction. Defendant Benjamin Daniel Kennedy, III's Combined Original Motion to Dismiss Claims for Lack of Subject-Matter Jurisdiction and Failure to State Claims Upon Which Relief Can be Granted and, Alternatively, to Abate, and Brief in Support Thereof ("Kennedy Motion") at 1. Under Rule 12(b)(6), Kennedy argues that the claims against him should be dismissed for failure to meet the Rule 9(b) requirements of pleading fraud with particularity. Id. Finally, Kennedy argues that this action should be abated because he did not receive pre-suit notice in accordance with DTPA requirements. Id. Kennard disputes all assertions by Kennedy. See generally Plaintiffs' Response to Defendant Kennedy's Motion to Dismiss or, in the Alternative, to Abate and Brief in Support Thereof ("Kennard's Kennedy Response"). The court will address each of these contentions in turn. 1. Subject Matter Jurisdiction a. Standard for Rule 12(b)(1) Motion to Dismiss Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the dismissal of a case for lack of jurisdiction over the subject matter. See FED. R. Civ. P. 12(b)(1). A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction must be considered by the court before any other challenge because "the court must find jurisdiction before determining the validity of a claim." Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir.1994) (internal citation omitted); see also Ruhrgas AG v. Marathon Oil Company, 526 U.S. 574, 577, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ("The requirement that jurisdiction be established as a threshold matter . . . is inflexible and without exception") (citation and internal quotation marks omitted). On a Rule 12(b)(1) motion, which "concerns the court's `very power to hear the case . . . [,] the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" MDPhysicians & Associates, Inc. v. State Board of Insurance, 957 F.2d 178, 181 (5th Cir.) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981)), cert. denied, 506 U.S. 861, 113 S.Ct. 179, 121 L.Ed.2d 125 (1992). In ruling on a motion to dismiss under Rule 12(b)(1), the court may rely on: "1) the complaint alone; 2) the complaint supplemented by undisputed facts; or 3) the complaint supplemented by undisputed facts and the court's resolution of disputed facts." MCG, Inc. v. Great Western Energy Corporation,, 896 F.2d *606 170, 176 (5th Cir.1990) (citing Williamson, 645 F.2d at 413). The standard for reviewing a motion under Rule 12(b)(1), however, depends on whether the defendant makes a facial or factual attack on the plaintiffs' complaint. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). The defendant makes a facial attack by the mere filing of a Rule 12(b)(1) motion. Id. In that case, the trial court must look at the sufficiency of the allegations in the complaint, which are presumed to be true. Id. The defendant makes a factual attack, on the other hand, by providing affidavits, testimony, or other evidentiary materials challenging the jurisdiction of the court. Id. In a factual attack, the plaintiffs are also required to submit facts in support of jurisdiction and have the burden of proving, by a preponderance of the evidence, that the trial court has subject matter jurisdiction over the claims. Middle South Energy, Inc. v. City of New Orleans, 800 F.2d 488, 490 (5th Cir.1986). In the instant motion, Kennedy has presented the court with a facial attack on the standing of each plaintiff, asserting (without evidentiary support) that the court lacks subject matter jurisdiction over this dispute because the case is not ripe for resolution and there is neither federal question nor diversity jurisdiction. Kennedy Motion at 1. For the reasons discussed below, the court concludes that the instant dispute is ripe and diversity jurisdiction is present. b. Ripeness In his motion to dismiss, Kennedy argues that Kennard's claims are not yet ripe because Kennard's "legal basis for actual damages—disqualification of the [Kennard DBP]—is admittedly potential and unrealized." Kennedy Motion at 5. Because Kennard is currently undergoing an audit by the IRS, Kennard's Kennedy Response at 2, which has yet to disqualify the Kennard DBP, Kennedy argues that there is no ripe case or controversy. Id. Ripeness—the fact that a case is neither "premature [n]or speculative"—"is a constitutional prerequisite to the exercise of jurisdiction." Shields v. Norton, 289 F.3d 832, 835 (5th Cir.) (citing United Transportation Union v. Foster, 205 F.3d 851, 857 (5th Cir.2000), and Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)), cert. denied, 537 U.S. 1071, 123 S.Ct. 663, 154 L.Ed.2d 565 (2002). As explained below, the fact that the IRS has yet to rule on the Kennard DBP's validity for tax deduction purposes is irrelevant; Kennard has already suffered damages and continues to incur expenses, most notably while defending his audit. See Affidavit of E. Philip Bush ¶¶ 4-5, attached to Kennard's Kennedy Response as Exhibit A ("Bush Affidavit") (noting that "Dr. Kennard became the subject of [an] IRS audit as a result of his reliance on advice and representations by Benjamin Daniel Kennedy, III, and others" and has subsequently incurred expenses of $40,880 as a result of this audit).[3] These injuries are already immediate and definite, so the fact that the other damages from the IRS audit remain contingent at *607 this time do not make this dispute premature or speculative. See Seippel v. Jenkens & Gilchrist, P.C., 341 F.Supp.2d 363, 371 (S.D.N.Y.2004) (finding that the damages alleged—fees paid to defendants, losses incurred in tax shelter transactions, expenses paid to defend audit, losses from forced sale of assets, and tax penalties— were sufficient to satisfy ripeness requirement). Accordingly, the court finds this case to be ripe for judicial resolution. c. Diversity Jurisdiction A party attempting to invoke federal court jurisdiction bears the burden of establishing that jurisdiction. Langley v. Jackson State University, 14 F.3d 1070, 1073 (5th Cir.), cert. denied, 513 U.S. 811, 115 S.Ct. 61, 130 L.Ed.2d 19 (1994). A district court has subject matter jurisdiction over an action on the grounds of diversity of citizenship when no plaintiff is a citizen of the same state as a defendant and when the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). Here, citizenship is not contested; instead, Kennedy argues that Kennard has failed to allege an amount in controversy sufficient to confer diversity jurisdiction. Kennedy Motion at 8. The sum claimed by a plaintiff controls the court's "amount in controversy" analysis, unless it appears to a legal certainty that the claim is really for less than the jurisdictional amount. See, e.g., St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938); see also St. Paul Reinsurance Company, Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998); Allen v. R & H Oil & Gas Company, 63 F.3d 1326, 1335 (5th Cir.1995). In general, the court will look to the plaintiffs complaint regarding the pleaded amount in controversy, but the court is also free to look to other information before the court, including any discovery material and affidavits. See Diefenthal v. Civil Aeronautics Board, 681 F.2d 1039, 1053 (5th Cir.1982) ("the party invoking the court's jurisdiction has the burden of establishing the factual basis of his claim by pleading or affidavit") (emphasis added), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983); 14B WRIGHT & MILLER § 3702 (3d ed.1998) at 57-59 ("Typically the district court will rely upon the pleadings, but there often is other information before the court, such as discovery material and any affidavits. . . ."); Cleveland Construction, Inc. v. Centex Construction Company, Inc., No. 3:03-CV-1437-N, 2004 WL 594093, at *2 (N.D.Tex. Mar. 24, 2004) ("the Court may consider `summary judgment type evidence' to determine whether the amount in controversy is sufficient for the Court to exercise diversity jurisdiction") (quoting Hartford Insurance Group v. Lou-Con Inc., 293 F.3d 908, 910 (5th Cir.2002)). Here, Kennard has asserted damages "totaling at least $500,000," Original Complaint ¶¶ 37, 45, against all defendants, including Kennedy. Since "the sum claimed by the plaintiff controls if the claim is apparently made in good faith," St. Paul Mercury Indemnity Co., 303 U.S. at 288, 58 S.Ct. 586, Kennard has satisfactorily alleged an amount in controversy sufficient to confer jurisdiction over this dispute. To further bolster this conclusion, as mentioned above, Kennard has already incurred over $40,000 solely in professional expenses to defend an IRS audit and "will incur substantial additional fees and expenses" as the audit continues. Bush Affidavit ¶ 5. This amount is independent of any damages Kennard claims as part of his suit against all defendants which, according to the complaint, could be treble the *608 amount of any actual damages suffered.[4] Original Complaint ¶¶ 20 (stating that Kennard has already spent more than $300,000 on premiums for the insurance policies from defendants), 38 & 46 (noting that, "because Defendants acted knowingly, Plaintiffs are entitled to recover treble damages"). Because diversity jurisdiction exists over this dispute, Kennedy's motion to dismiss on this ground is denied.[5] 2. Failure to Plead Fraud Claim with Requisite Particularity As mentioned above, Kennedy also argues that Kennard's complaint should be dismissed for failure to meet the heightened pleading requirements of Rule 9(b), which govern claims of fraud. Kennedy Motion at 9. For the reasons stated below, the court disagrees. a. Standard for Dismissal Under Rule 12(b)(6) Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED. R. Civ. P. 12(b)(6). There are two primary principles that guide the court's determination of whether dismissal under Rule 12(b)(6) should be granted. First, a motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the nonmovants could prove no set of facts in support of their claims that would entitle them to relief, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir.1994); see also Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982) (citing WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1357 at 598 (1969), for the proposition that "the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted"), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983). Second, the court must accept all well-pleaded facts as true and view them in the light most favorable to the nonmovants. Capital Parks, Inc. v. Southeastern Advertising and Sales System, Inc., 30 F.3d 627, 629 (5th Cir.1994); Norman v. Apache Corporation, 19 F.3d 1017, 1021 (5th Cir. 1994); Chrissy F. by Medley v. Mississippi Department of Public Welfare, 925 F.2d 844, 846 (5th Cir.1991). However, conclusory allegations and unwarranted factual deductions will not suffice to prevent a motion to dismiss. United States ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir.2003). If it appears that a more carefully drafted pleading might state a claim upon which relief could be granted, the court should give the claimant an opportunity to amend his claim rather than dismiss it. *609 Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir.1985); Taylor v. Dallas County Hospital District, 976 F.Supp. 437, 438 (N.D.Tex.1996). Furthermore, leave to amend a pleading should be freely given and should be granted unless there is some justification for refusal. Willard, 336 F.3d at 386. b. DTPA and Texas Insurance Code Claims Kennard has alleged claims under both the DTPA and Texas Insurance Code. See Original Complaint ¶¶ 31-46. Kennedy argues that these claims must be pleaded with requisite particularity to fulfill the standards of Rule 9(b), Kennedy Motion at 9, while Kennard argues that he must only satisfy Rule 8(a) pleading requirements. Kennard's Kennedy Response at 10-11. The court agrees with Kennard on this issue. Although stated in the context of a claim for negligence misrepresentation, the Fifth Circuit has declared that "Rule 9(b)'s stringent pleading requirements should not be extended to causes of action not enumerated therein," American Realty Trust, Inc. v. Hamilton Lane Advisors, Inc., 115 Fed.Appx. 662, 668 (5th Cir.2004). When both fraud and non-fraud claims are alleged, Rule 9(b) pleading requirements sometimes apply to both, but compliance with Rule 9(b) is required only when the non-fraud claims are "so intertwined" with the fraud averments that it is not possible to describe a simple redaction to separate the two. See Afshar v. Norwood, No. 3:05-CV-1625-G, 2005 LEXIS 33113, at *10 (N.D.Tex. Dec. 14, 2005) (Fish, C.J.) (citing Nazareth International, Inc. v. J.C. Penney Corporation, Inc., No. 3:04-CV-1265-M, 2005 WL 1704793, at *3-4 (N.D. Tex. July 19, 2005) (Lynn, J.) (discussing evolution of pleading requirements for negligent misrepresentation after Benchmark Electronics, Inc. v. J.M. Huber Corporation, 343 F.3d 719 (5th Cir.2003), and American Realty, 115 Fed. Appx. 662)). Here, Kennard enumerates three causes of action, none of which is fraud eo nomine. See Original Complaint ¶¶ 27-46. With no allegations "intertwined" with those of fraud, the court finds that Rule 9(b) should not be applied to Kennard's claims under the DTPA and Texas Insurance Code. See, e.g., Infomart (India), Pvt., Ltd. v. Metrowerks Corporation, No. 3:04-CV-1299-N, 2005 WL 292433, at *7 (N.D.Tex. Feb. 7, 2005) (Godbey, J.) (holding that since the court could disentangle the inadequately pleaded fraud claims from the plaintiff's DTPA causes of action, the defendant was not entitled to dismissal of the plaintiffs DTPA claims for failure to meet Rule 9(b) pleading requirements). Accordingly, Kennedy's motion to dismiss on this ground is denied. 3. Lack of Pre-Suit DTPA Notice Finally, Kennedy moves in the alternative to abate this action pending receipt of pre-suit DTPA notice. Kennedy Motion at 14. To discourage litigation and encourage settlement, a plaintiff claiming damages under the DTPA or the Texas Insurance Code is required to give 60 days notice of the forthcoming suit. Hines v. Hash, 843 S.W.2d 464, 468-69 (Tex.1992). If the court discovers that the plaintiff has not complied with this notice requirement, it must abate the proceedings for 60 days. Id. This requirement is waived, though, when an impending statute of limitations makes notice impracticable. TEX. BUS. & COM.CODE § 17.505(b); TEX. INS.CODE § 541.154(c)(1). Kennard admits that he did not give notice before filing suit, but argues that the statute of limitations exception applies. Kennard's Kennedy Response at 12. In addition, Kennard notes that, subsequent to his June 17, 2005 filing of the instant action, he gave the requisite notice to all defendants. Id. at 13 ("On *610 September 12, 2005, Dr. Kennard served a letter, by facsimile, upon counsel of record for all Defendants, notifying them of Dr. Kennard's specific complaint and the amount of economic damages and expenses, including attorneys' fees reasonably incurred by Dr. Kennard."). Although Kennedy did not respond to this argument, the defendant Xelan addressed an identical contention. Reply to Response to Motion to Dismiss Under Rule 12(b)(6) or, in the Alternative, to Abate at 8. Noting that it received notice on September 12, Xelan requested that the court abate this case for the requisite 60 days, i.e., until November 11, 2005. Id. Inasmuch as this case was automatically abated pursuant to the DTPA, see TEX. BUS. & COM.CODE § 17.505(d), (e), and the 60-day period has already expired, there is no reason to formally abate this action. See In re Alford Chevrolet-Geo, 997 S.W.2d 173, 178 (Tex.1999). Accordingly, Kennedy's alternative motion to abate is denied. B. Xelan's Motion to Dismiss or Abate Xelan has also filed a motion to dismiss Kennard's claims against it, or in the alternative to abate the action due to lack of pre-suit DTPA notice. See generally Motion to Dismiss Under Rule 12(b)(6) or, in the Alternative, to Abate. Citing similar caselaw and advancing analogous arguments, Xelan's motion presents issues identical to those advanced in Kennedy's motion. Rather than repeating this discussion, the court refers to the previous section regarding dismissal for failure to meet Rule 9(b) pleading requirements and abatement for lack of pre-suit DTPA notice. For the reasons stated above, Xe-Ian's motion to dismiss or abate is also denied. C. Indianapolis Life's Partial Motion to Dismiss Indianapolis Life seeks dismissal, on three grounds, of one of Kennard's claims against it. See Indianapolis Life Insurance Company's Brief in Support of Its Partial Motion to Dismiss ("Indianapolis Life Motion"). First, Indianapolis Life argues that Article 3.42 of the Texas Insurance Code does not provide for a private right of rescission as sought by Kennard.[6]Id. at 2-3. Indianapolis Life also argues that there is no Texas common law right of rescission with respect to an insurance policy. Id. at 3-5. Finally, Indianapolis Life asserts that since Kennard has not alleged he has suffered any damage as a result of the non-approval of the Kennard policy, the plaintiffs have not adequately pleaded a claim for rescission. Id. at 5. Kennard does not contest Indianapolis Life's statement that Article 3.42 does not, by its terms, provide a statutory private right of rescission. Plaintiff's Response to Defendant Indianapolis Life Insurance Company's Partial Motion to Dismiss, and Brief in Support ("Kennard's Indianapolis Life Response") at 6. Instead, Kennard argues that Article 3.42 is a means to hold Indianapolis Life accountable for issuing an unapproved life insurance policy. Id. Similar to other areas of Texas law, Springfield v. Aetna Casualty & Surety Insurance Co., 620 S.W.2d 557, 558 (Tex.1981) ("insurers are required by law to use the endorsement forms prescribed by the State Board of Insurance, and a failure to do so would subject them to an action for revocation of their licenses"); *611 Commercial Assurance Co. v. Preston, 115 Tex. 351, 282 S.W. 563, 565 (1926) (quoting Bourgeois v. Northwestern National Insurance Co., 86 Wis. 606, 57 N.W. 347, 348 (1893), for the proposition that such board approval "aims to bring order out of chaos" by reining in the infinite number of possible policy forms), Article 3.42 requires that insurers only issue forms that are approved by the state. TEX. INS.CODE Article 3.42. Rather than basing his claim solely on Article 3.42, Kennard urges that his common law right of rescission is derived from Article 3.42's requirement that an insurer must provide approved forms. Kennard's Indianapolis Life Response at 6-8. Kennard seeks to enforce his common law right to rescission on the theory that Indianapolis Life issued an insurance policy not in compliance with the Texas Insurance Code. Because Kennard is not actually basing his cause of action on a statutory right of rescission under Article 3.42, but instead wishes to proceed under the Texas common law, it is not clear that Texas law would afford him no relief. Indianapolis Life's motion to dismiss on this ground must therefore be denied. Indianapolis Life's second ground assails this common law right of rescission, arguing that there is no absolute right to rescind insurance contracts in Texas. Indianapolis Life Motion at 3. Both parties rely heavily on two Texas cases, neither of which is directly on point. See Urrutia v. Decker, 992 S.W.2d 440 (Tex.), cert. denied, 528 U.S. 1021, 120 S.Ct. 530, 145 L.Ed.2d 411 (1999); see also Mutual Life Insurance Company of New York v. Daddy$ Money, Inc., 646 S.W.2d 255 (Tex. App.—Dallas 1982, writ ref'd n.r.e.). The only pertinent discussion from these cases is found in dicta from the Supreme Court of Texas, which offers limited guidance in this case. Specifically, the Supreme Court of Texas noted that an "insured may, upon learning that the insurance is unapproved, elect to rescind it." Urrutia, 992 S.W.2d at 443. Indianapolis Life contends, however, that a claim for rescission does not ripen until an insurer seeks to enforce an unapproved insurance policy against the insured. Indianapolis Life Motion at 4 (citing Daddy$ Money, Inc., 646 S.W.2d at 265-57). With no case law provided by Indianapolis Life directly supporting its argument, and the Texas Supreme Court suggesting that a right of rescission potentially exists for insureds with unapproved insurance policies, the court turns to general Texas contract law for further guidance. Under Texas law, the decision to grant rescission of a contract lies within the trial court's sound discretion. Barker v. Roelke, 105 S.W.3d 75, 84 (Tex.App.— Eastland 2003, pet. denied). "Rescission is an equitable remedy that operates to extinguish a contract that is legally valid but must be set aside due to fraud, mistake, or for some other reason to avoid unjust enrichment." Martin v. Cadle Company, 133 S.W.3d 897, 903 (Tex.App.—Dallas 2004, pet. denied). Because rescission "is an equitable remedy used as a substitute for monetary damages when such damages would not be adequate," a court must weigh several factors to determine whether such equitable relief should be granted. Davis v. Estridge, 85 S.W.3d 308, 310 (Tex. App.—Tyler 2001, pet. denied). Specifically, the court should look to: the "probability of irreparable damage to the moving party in the absence of relief, [the] possibility of harm to the nonmoving party if the requested relief is granted, and [the] public interest." Id. (citing Wenner v. Texas Lottery Commission, 123 F.3d 321, 325 (5th Cir.1997)). It should be noted, however, that "[t]he right to rescind a contract may be lost by inaction and conduct showing an affirmation of the contract after a knowledge of the facts which are grounds for rescission." Barker, 105 S.W.3d at 84. *612 Here, Kennard is seeking rescission because of alleged misrepresentations by Indianapolis Life in issuing unapproved life insurance policies in the state of Texas and Indianapolis Life's agents in marketing these insurance policies as legal tax shelters. Original Complaint ¶¶ 18, 19 & 29. Should the court grant the requested equitable relief, Indianapolis Life will no longer have a paying customer and Kennard will receive the amounts paid in premiums minus any benefit he has received. In other words, both parties will be returned to status quo ante and neither will be unjustly enriched as a result of the transaction. See Boyter v. MCR Construction Co., 673 S.W.2d 938, 941 (Tex.App.—Dallas 1984, writ ref'd n.r.e.) ("To be entitled to the equitable remedy of rescission, . . . a party must show . . . that he and the other party are in status quo, i.e., that he is not retaining benefits received under the instrument without restoration to the other party."). By allowing rescission of the insurance policy, a court would be upholding the public interest by assuring that policies distributed in Texas conform to the Texas Insurance Code and that if they do not, the insured will not be bound to a questionable policy, unapproved by the state. When the facts here are viewed in the light most favorable to Kennard, as they must be on a motion to dismiss, there is no indication that Kennard knew that the policy was unapproved or that the tax shelter was not legal. Since Kennard's behavior does not indicate affirmance of the unapproved insurance policy and the Texas Supreme Court has already intimated that the insured may rescind an insurance policy upon learning that the policy is unapproved, the court is unable to say that Kennard can prove no set of facts in support of his claims that would entitle him to relief. The motion to dismiss on this ground is accordingly denied. The court now turns to address Indianapolis Life's third argument for dismissal: harm. As stated above, rescission is an equitable remedy, so such relief is not granted for a mere breach of contract. Freyer v. Michels, 360 S.W.2d 559, 561 (Tex.App.—Dallas 1962, writ dism'd). Instead, a plaintiff must show that he will sustain "serious and irreparable pecuniary injury" unless rescission is granted. Id. at 562. Accordingly, Kennard must show harm in order to prevail on his claim of rescission. Here, in addition to the $500,000 in damages alleged in the complaint, Original Complaint ¶¶ 37, 45, Kennard maintains that he is the subject of an IRS audit as a result of his reliance on Indianapolis Life's representations and that he has already incurred over $40,000 in attorney's fees. Moreover, Kennard has already paid more than $300,000 in premiums to Indianapolis Life for insurance policies unapproved by the Texas Department of Insurance. Id. ¶ 20. Kennard has sufficiently alleged harm resulting from Indianapolis Life's representations that the policy was both approved and would function as a legal tax shelter. Since Kennard has pleaded this element of a claim for rescission, Indianapolis Life's motion to dismiss must be denied on this ground as well.[7] III. CONCLUSION For the reasons stated above, the motions are DENIED. SO ORDERED. NOTES [1] In its motion this defendant refers to itself as )(elan Association. Motion to Dismiss under Rule 12(b)(6) or, in the Alternative, to Abate at 1. The plaintiffs refer to this defendant as Xelan, the Economic Association of Health Professionals, Inc. Original Complaint ¶ 9. The court is unsure whether the name should be capitalized but will use the plaintiffs' convention. [2] For case of reference, all plaintiffs will collectively be referred to as "Kennard." [3] The court notes that Kennedy objects to the consideration of this affidavit in the court's determination of ripeness. Defendant Benjamin Daniel Kennedy, III's Reply to Plaintiffs' Response to Defendant Kennedy's Combined Original Motion to Dismiss or, in the Alternative, to Abate and Brief in Support at 3. The court will look to the affidavit, though, because "[r]ipeness should be decided on the basis of all the information available to the court." 13A C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE ("WRIGHT & MILLER") § 3532.1 (2d ed.1984) at 136. [4] Kennedy argues that the damages claimed against him "differ significantly from their separate damages allegations against" co-defendant Indianapolis Life. Kennedy Motion at 8. Assuming arguendo the truth of this assertion would not defeat jurisdiction over Kennedy. Under the same rationale enunciated above, the court would have diversity jurisdiction over Kennedy's co-defendants and could then exercise supplemental jurisdiction over the claims against Kennedy. See 28 U.S.C. § 1367(a). [5] Because the court finds diversity jurisdiction present in this case, it need not decide the issue of federal question jurisdiction, even though that issue was argued by the parties. In light of existing precedent from this district, however, and the fact that the jury can decide this case without regard to the accuracy of IRS determinations, the presence of federal question jurisdiction seems unlikely. See, e.g., Cantwell v. Deutsche Bank Securities, Inc., No. 3:05-CV-1378-D, 2005 WL 2296049, at *5 (N.D.Tex. Sept. 21, 2005); Leggette v. Washington Mutual Bank, FA, No. 3:03-CV-2909-D, 2005 WL 2679699 (N.D.Tex. Oct. 19, 2005) (explaining and applying federal "arising under" jurisdiction). [6] Article 3.42 of the Texas Insurance Code was repealed by the Texas legislature effective April 1, 2005. Section 1701.051(a) is substantially similar to this repealed law, however. See TEX. INS.CODE § 1701.051(a) ("[e]xcept as provided by Section 1701.005, an insurer may not use a document described by Section 1701.002 in this state unless the form of the document is filed with the department in accordance with this chapter"). [7] While Indianapolis Life may contest whether the harm alleged is sufficient to support rescission of the unapproved insurance policies, the Texas Supreme Court said in Urrutia (without discussion of harm to the insured) that "the insured may, upon learning that the insurance is unapproved, elect to rescind it." Urrutia, 992 S.W.2d at 443.

28 Wn. App. 474 (1981) 624 P.2d 215 FLO PEARCE, Respondent, v. MOTEL 6, INC., Appellant. No. 3837-II. The Court of Appeals of Washington, Division Two. February 24, 1981. Gregory F. Logue and Harold E. Winther, for appellant. Robert I. Deutscher, for respondent. REED, C.J. This is an appeal from a jury verdict awarding plaintiff Flo Pearce $35,000 in damages for injuries she sustained in a slip and fall accident on defendant's premises. The dispositive issue raised on appeal is whether it *475 was error not to give defendant's proposed instruction describing the circumstances under which a motel keeper is liable to its guests for injuries sustained on the premises. We hold the instruction should have been given and reverse and remand for new trial. Defendant Motel 6, Inc., owns and operates a national chain of motels offering modest but comfortable accommodations at economical rates. Plaintiff Flo Pearce occupied a room with her husband in defendant's Fife facility near Tacoma. The Pearces had checked into the motel on July 5, 1976, while traveling on vacation from their home in California. The accident giving rise to this action occurred when plaintiff fell as she entered the shower stall in the bathroom of her motel room. The shower compartment was of a fiberglass stall construction with a folding accordion-type door and no tub facilities. Plaintiff's testimony was that she first took the precaution of placing a bath towel on the bathroom floor outside the shower stall; after disrobing and running the water in the shower to the proper temperature, she stepped from the towel into the compartment with her right foot. As she transferred weight onto her right foot she slipped and fell, thereby sustaining injury to her left foot and leg. At trial plaintiff pursued three principal theories of liability: (1) that defendant was negligent in not furnishing mats or by not applying some form of nonskid surface preparation to the shower floor pan; (2) that defendant was negligent in failing to provide grab bars in the shower's interior; and (3) that defendant's employees negligently left a dangerous soap or detergent film on the shower floor after cleaning.[1] Testimony at trial indicated defendant had not supervised construction of the Fife motel unit, but had acquired *476 it after construction had been completed. The shower stalls used were common to those found on the market at the time the Fife facility was constructed. Plaintiff's expert testified that the stalls had been cleaned and maintained in such a manner that the fiberglass and Gel-Coat finish had retained the same shine, smoothness, and luster as the product had possessed when originally installed. The expert further testified, however, that the fiberglass industry had since improved methods of constructing fiberglass shower stalls such that newer stall floors are more slip resistant. Evidence was admitted which indicated that at the time of the accident at least two surface preparations were available which could have been applied to the early model or smooth surface pans to achieve a similar degree of slip resistance. One preparation is a form of paint which contains an abrasive material that hardens to a rough-textured surface. The other preparation is an adhesive strip which is impregnated with a similarly textured material. Either preparation could have been applied to defendant's shower floor to increase the degree of slip resistance. In addition to the two shower floor preparations, the plaintiff's expert testified to a comparison he had made between the Fife unit's shower stall and a shower stall found in a new Motel 6 unit in Tumwater. Unlike the Fife facility, defendant had supervised construction of the Tumwater Motel 6. Although not entirely clear from the record, it appears the comparison was made for the purpose of suggesting that defendant was cognizant of both the dangers of and alternatives to smooth surface shower floors. The shower stalls in the Tumwater facility were installed some years after construction of the Fife facility and had been manufactured under the more modern technique of imparting a slip resistant surface to the stall at the time of fabrication. Defendant's evidence was that, during its nearly 5 years of ownership of the Fife facility, there had been no reports of similar accidents nor had it received any complaints regarding the safety of the shower stalls. *477 Defendant's first assignment of error is directed to the denial of defendant's motion for directed verdict and judgment n.o.v. Defendant argues that the evidence was insufficient, as a matter of law, to establish either that the shower unit posed an unreasonable risk of harm to users, or that defendant should have realized that fact. We have serious misgivings about the relevance of much of plaintiff's evidence. Plaintiff's expert appeared to posit his opinion primarily upon his comparison of the relative safety of the Fife and Tumwater facilities. It is of course not enough to say that shower A is more or less dangerous than shower B. No evidence was offered that the Fife unit did not meet industry standards. However, plaintiff described the shower pan surface as "slick as ice" and plaintiff's expert characterized it as constituting a "significant hazard potential for a slip and fall." Furthermore, we believe the evidence, while not strong, was enough to create a jury issue as to defendant's awareness of the condition and the relatively inexpensive means for correcting it. Cf. Bidlake v. Youell, Inc., 51 Wn.2d 59, 315 P.2d 644 (1957) and Doherty v. Arcade Hotel, 170 Or. 374, 134 P.2d 118 (1943). [1] The same is not true, however, regarding plaintiff's theory that a chambermaid left a dangerous soap film on the shower floor; we note there is hardly a scintilla of evidence to support such a theory. Testimony revealed that after cleaning the shower floor with soap solution the shower was rinsed, dried, and checked by the head chambermaid. Plaintiff further testified that she personally ran the water in the shower for several moments before entering. Plaintiff's only basis for urging such a theory is that on the day following the accident, after the room had been cleaned, plaintiff felt the shower floor and observed it was "quite slippery-like" such that "it felt like there was grease or oil on it." Plaintiff's husband testified that when he examined the shower after it had been cleaned: There was something that made it slick, yes. I couldn't tell if it was grease, oil, or just the nature of the material. *478 To conclude that plaintiff slipped on soap film on the basis of this evidence would be utter speculation. To sustain a finding of negligence the evidence must be substantial and not a mere scintilla. Hojem v. Kelly, 93 Wn.2d 143, 606 P.2d 275 (1980). The trial judge should not have permitted this theory to go to the jury. After instructing on the general definitions of negligence and contributory negligence, burden of proof, proximate cause and damages, the trial court gave, as its only instruction defining the duty or duties owed by defendant to plaintiff, the following: The operator of a motel owes to a person who has an express or implied invitation to come upon the premises in connection with that business, a duty to exercise ordinary care for his safety. This includes the exercise of ordinary care to maintain in a reasonably safe condition those portions of the premises which such person is expressly or impliedly invited to use or which he might reasonably be expected to use. [2] The trial court refused, however, to give defendant's proposed instruction which read as follows: A hotel/motel operator is liable for physical harm caused to its guests by a condition of the premises if, but only if, it (a) knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such guests, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. As applied to plaintiff's basic theory that the shower as originally constructed and maintained was a dangerous instrumentality which defendant could have rendered safe by utilizing methods currently available, the proposed instruction was a correct statement of the law governing the case. The failure to give the instruction precluded defendant from meaningfully presenting its case and from arguing *479 its theories of defense to the jury and consequently of a fair trial. In Leek v. Tacoma Baseball Club, Inc., 38 Wn.2d 362, 229 P.2d 329 (1951), the court said: Basic in the law of negligence is the tenet that the duty to use care is predicated upon knowledge of danger, and the care which must be used in any particular situation is in proportion to the actor's knowledge, actual or imputed, of the danger to another in the act to be performed. Burr v. Clark, 30 Wn. (2d) 149, 190 P. (2d) 769; 38 Am. Jur. 678, Negligence, § 32; 65 C.J.S. 351, Negligence, § 5. This principle is an integral part of the law relating to the liability of owners or occupants of premises. Generally speaking, the possessor of land is liable for injuries to a business visitor caused by a condition encountered on the premises only if he (a) knows or should have known of such condition and that it involved an unreasonable risk; (b) has no reason to believe that the visitor will discover the condition or realize the risk; and (c) fails to make the condition reasonably safe or to warn the visitor so that the latter may avoid the harm. Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W. (2d) 318, 142 A.L.R. 858; 2 Restatement of Torts 938, § 343; 38 Am. Jur. 754, Negligence, § 96; 65 C.J.S. 521, Negligence, § 45. Leek v. Tacoma Baseball Club, Inc., supra at 365-66. Restatement (Second) of Torts § 343 (1965); see also Knight v. Wandermere Co., 46 Wn.2d 768, 284 P.2d 1106 (1955); Winkler v. Seven Springs Farm, Inc., 240 Pa. Super. Ct. 641, 359 A.2d 440 (1976). [3] Plaintiff argues that defendant was entitled to no more than the general instruction which was given and was able effectively to argue its defenses to the jury. We do not agree. First, nowhere was the jury told that before it could find defendant had breached its duty of due care to plaintiff, it must find that defendant knew or should have known the shower facility presented an unreasonable risk of harm. Second, nowhere was the jury advised that defendant's duty was tempered by what it could reasonably expect its guests would perceive for themselves, e.g., that fiberglass shower floors become slippery when wet. Miller v. Shull, 48 *480 So.2d 521 (Fla. 1950); LaBart v. Hotel Vendome Corp., 213 F. Supp. 958 (D. Mass. 1963); Dempsey v. Alamo Hotels, Inc., 76 N.M. 712, 418 P.2d 58 (1966), overruled on other grounds in Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1972). As instructed, the jury could have considered the care and attention exercised by plaintiff for her own safety only as such evidence bore on the defense of contributory negligence and not for any bearing it may have had on defendant's primary duty of due care. As stated in Leek v. Tacoma Baseball Club, Inc., supra at 366, one of the three conditions which must be met before the possessor of land may be found liable is that the possessor "has no reason to believe that the visitor will discover the condition or realize the risk". Restatement (Second) of Torts § 343(b) (1965). In short, the failure to give defendant's proposed instruction virtually rendered defendant an insurer upon a finding only that the shower fixture was unreasonably dangerous and proximately caused plaintiff's injury. Motel owners are not guarantors or insurers of the safety of their business invitees. Cf. Hemmen v. Clark's Restaurant Enterprises, 72 Wn.2d 690, 434 P.2d 729 (1967); Engdal v. Owl Drug Co., 183 Wash. 100, 48 P.2d 232 (1935). [4] Each party to a negligence action is entitled to have his theory of the case presented to the jury by proper instructions, there being evidence in support thereof. Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 606 P.2d 1214 (1980). When there is a request for an appropriate instruction which relates the principles of law involved to the issues in the case, it is not enough to simply apprise the jury in general or abstract terms that a party claims the other was negligent. Kiemele v. Bryan, 3 Wn. App. 449, 476 P.2d 141 (1970). As stated in Dabroe v. Rhodes Co., 64 Wn.2d 431, 392 P.2d 317 (1964): Nowhere in the instructions is there any reference to what the claimed negligence of the defendants might be, except the statement of plaintiffs' contention in instruction No. 1, "that the defendants negligently operated and maintained the escalator." *481 ... The plaintiffs were, of course, entitled to have their theories of the case presented to the jury by proper instructions, there being evidence to support them; and their right was not affected by the fact that the law was covered in a general way by the instructions given. DeKoning v. Williams (1955), 47 Wn. (2d) 139, 141, 286 P. (2d) 694; Allen v. Hart (1948), 32 Wn. (2d) 173, 176, 201 P. (2d) 145. (Footnote omitted.) Dabroe, at 435. The prejudice to defendant in this case was compounded by the court's refusal to give defendant's "issues" instructions.[2]Woods v. Goodson, 55 Wn.2d 687, 349 P.2d *482 731 (1960); see also WPI 20.01, 20.05, 6 Wash. Prac. 117 (1980) and the official comments to WPI, pages 119-20. This omission must have been particularly confusing to the jury because the court's burden of proof instruction contained the following: The plaintiff has the burden of proving each of the following propositions: First, that the defendant acted, or failed to act, in one of the ways claimed by the plaintiff and that in so acting or failing to act, the defendant was negligent; ... The defendant has the burden of proving both of the following propositions: First, that the plaintiff acted, or failed to act, in one of the ways claimed by defendant, and that in so acting, or failing to act, the plaintiff was negligent ... (Italics ours.) Because of these errors in the instruction phase of the case, the judgment on the verdict must be reversed. Accordingly, we do not reach defendant's other assignments of error, except to note that the trial court was correct in refusing an instruction based on WPI 120.06.02.[3] Such an instruction pertains only where there is evidence of a temporary condition of the premises, created by someone other than the possessor or its agents. Hampton v. Lynch Motor Co., 6 Wn. App. 644, 495 P.2d 345 (1972). Here, there was no evidence to support such an instruction. *483 Reversed and remanded for new trial. PEARSON and PETRICH, JJ., concur. Reconsideration denied March 30, 1981. Review denied by Supreme Court June 12, 1981. NOTES [1] This theory was not pleaded, but was interjected at trial after defendant offered evidence the showers were cleaned routinely with a "non-abrasive" detergent. [2] Defendant's proposed instruction No. 6 reads as follows: "(1) The plaintiff claims that the defendant was negligent in one or more of the following respects: "(a) Failing to provide shower mats or other safety devices to place on the floor of the shower stall; "(b) Failing to install handrails or other safety devices to enable plaintiff to hold onto for support; "(c) Providing plaintiff with a shower stall which was defective in design for the safety of persons using the same, that is, the floor of the shower stall was smooth and slippery and said stall had no handrails; "(d) Failing to exercise due care and caution for the safety of the plaintiff. "The plaintiff claims that one or more of these acts was a proximate cause of the injuries sustained. The defendant denies these claims. "(2) In addition the defendant claims as an affirmative defense that the plaintiff was contributorily negligent in the following respects: "(a) Failing to exercise due care and caution in the use of defendant's shower facilities. "The defendant claims that such failure was a proximate cause of plaintiff's own injuries. The plaintiff denies this claim. "(3) The defendant further claims and plaintiff denies the following affirmative defense: "(a) Plaintiff knew and appreciated the specific dangers and hazards associated with the activity in which she was engaged and voluntarily assumed the risks incidental thereto. "(4) Lastly, the defendant denies the nature and extent of the injuries claimed by plaintiff to have proximately resulted from defendant's alleged acts or omissions." Proposed instruction No. 7 reads as follows: "The foregoing is merely a summary of the claims of the parties. You are not to take the same as proof of the matters claimed; and you are to consider only those matters which are established by the evidence. These claims have been outlined solely to aid you in understanding the issues." [3] Defendant's proposed instruction No. 16 reads as follows: "In order to support a finding of negligence, a temporary unsafe condition of the premises which was not created by defendant or defendant's employees, and which was not caused by negligence on defendant's part, must either have been brought to the actual attention of defendant or defendant's employees or it must have existed for a sufficient length of time and under such circumstances that defendant or defendant's employees should have discovered it in the exercise of ordinary care."

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT WILLIAM RUSSELL WALKER, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D17-2509 [October 12, 2017] Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Cynthia L. Cox, Judge; L.T. Case No. 312007CF000936A. William R. Walker, Chipley, pro se. No appearance for appellee. PER CURIAM. Affirmed. WARNER, TAYLOR and FORST, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 

521 F.2d 1401 Shermanv.Havener 75-1538 UNITED STATES COURT OF APPEALS Sixth Circuit 8/1/75 S.D.Ohio AFFIRMED

184 Ariz. 528 (1995) 911 P.2d 534 Thomas FARAGHAR and Susan Faraghar, husband and wife, Petitioner Employer, No Insurance Section/Special Fund Division, Petitioner Party in Interest, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Kathleen Lord, Respondent Employee. No. 1 CA-IC 93-0186. Court of Appeals of Arizona, Division 1, Department C. March 23, 1995. Reconsideration Denied August 28, 1995. Review Denied February 21, 1996.[*] *529 Long, Lundmark & Poppe, P.A. by R. Todd Lundmark, Phoenix, for petitioner employer. Margaret A. Fraser, The Industrial Commission of Arizona, Phoenix, for petitioner party in interest. Anita R. Valainis, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent. Kurth & Kurth, P.C. by Dennis R. Kurth, Phoenix, for respondent employee. OPINION WEISBERG, Judge. This is a special action review of an Arizona Industrial Commission ("Commission") Decision Upon Hearing And Finding And Award, and Decision Upon Review modifying the Award. For the following reasons, we affirm. PROCEDURAL AND FACTUAL HISTORY Thomas Faraghar ("Faraghar"), petitioner employer, worked as a stockbroker for Chelsea *530 Street Securities, Inc. ("Chelsea"). Kathleen Lord ("claimant") worked for Faraghar as a "cold-caller," an individual hired by a broker to make unsolicited calls to find potential customers for that broker. On February 5, 1992, claimant slipped and fell in the common hallway of Chelsea's offices. In November 1992, she filed a workers' compensation claim naming Faraghar as her employer. Chelsea was not named as an employer and has never been a party to this action. Faraghar was uninsured and, accordingly, the No Insurance Division of the Commission processed the claim. After the No Insurance Division denied condensability, claimant requested a hearing. Claimant, Faraghar, and the former manager of Chelsea testified at the ensuing hearing.[1] Faraghar contended that claimant was Chelsea's employee and, therefore, Chelsea was exclusively liable for claimant's workers' compensation claim. In addition to the testimony of these witnesses, the record included a representative copy of Chelsea's standard stockbroker employment agreement, pursuant to which Faraghar worked for Chelsea. Under this form of agreement, a stockbroker is labelled an employee of Chelsea, is compensated by commission only, and is made financially responsible for specified losses and operating expenses. Among other duties, the stockbroker must attempt "to expand the number of customers who invest in securities through the Employee with the Company." The agreement is silent, though, as to the status of a cold-caller. The practice of Chelsea, however, was that the hiring broker would personally pay the hired cold-caller, and would not be reimbursed by Chelsea. While the decision to hire a cold-caller was left to the individual stockbroker, Chelsea's manager had to approve each hiring. Therefore, when Faraghar decided to hire claimant, he sought and obtained his manager's approval. Claimant then completed a uniform application and underwent security screening, as required of all Chelsea employees. Faraghar initially assigned claimant clerical tasks, but subsequently had her cold-call for him. Faraghar personally trained claimant to cold-call, set her work hours and production quotas, and paid her a lump sum of $1000.00 per month from his own account funds. Although she cold-called only for Faraghar, she worked at Chelsea's office and used its equipment. Also, when cold-calling, claimant used a script provided by Chelsea and identified herself as being associated with both Chelsea and Faraghar. Claimant testified that Faraghar told her that she worked only for him. She considered Faraghar to be her employer and did not receive the fringe benefits received by other employees of Chelsea. Faraghar, on the other hand, testified that he told claimant that she worked for both him and Chelsea. While Chelsea maintained the right to control the details of stockbrokers' work and that of any of the stockbrokers' cold-callers, claimant's work never presented a situation that required its attention. Although Chelsea monitored the productivity of its stockbrokers, it did not monitor the productivity of cold-callers. Several months after claimant's industrial injury, and for unrelated reasons, a Chelsea executive directed Faraghar to fire claimant. Faraghar complied. Nevertheless, claimant continued to occasionally cold-call for Faraghar out of her home until he left Chelsea, at which time she resumed full-time cold-calling for him at his new brokerage. Following the hearing, the Administrative Law Judge ("ALJ") issued an award for a compensable claim. She concluded that Chelsea employed Faraghar and that Chelsea and Faraghar jointly employed claimant. Therefore, both were responsible for providing workers' compensation insurance for claimant. The ALJ also concluded that Chelsea's liability was primary and Faraghar's secondary. On administrative review, the ALJ modified the award to delete the finding as to primary and secondary liability. She substituted a finding that both Chelsea and Faraghar are liable for claimant's workers' compensation *531 benefits.[2] Faraghar then brought this special action. STANDARD OF REVIEW We consider the evidence in the light most favorable to sustaining the award. Special Fund Div. v. Industrial Comm'n, 172 Ariz. 319, 321, 836 P.2d 1029, 1031 (App. 1992). We will sustain the award if it is reasonably supported by the evidence. Id. Notwithstanding, we apply a de novo standard of review to the ALJ's determination of an employer-employee relationship. Central Management Co. v. Industrial Comm'n, 162 Ariz. 187, 189, 781 P.2d 1374, 1376 (App. 1989); Anton v. Industrial Comm'n, 141 Ariz. 566, 569, 688 P.2d 192, 195 (App. 1984). DISCUSSION Faraghar does not dispute the ALJ's finding that both he and claimant were employees of Chelsea. Rather, Faraghar argues that, as claimant's co-employee, Faraghar cannot also be her employer, and therefore cannot be responsible for providing workers' compensation coverage. He contends that, for worker's compensation purposes, only Chelsea was claimant's employer and was therefore exclusively responsible for providing her workers' compensation coverage. To support his argument, Faraghar cites several cases in which either subservants or statutory employees have brought successful claims against their masters or statutory employers, or in which the latter have successfully asserted immunity from civil actions. See Mahan v. Litton, 321 S.W.2d 243 (Ky. 1959) (master immunized from civil suit by subservant); Mill Street Church of Christ v. Hogan, 785 S.W.2d 263 (Ky.App. 1990) (subservant successfully claimed compensation against master); Carlson v. Cain, 204 Mont. 311, 664 P.2d 913 (1983) (statutory employee successfully claimed compensation against statutory employer when contractor/employer uninsured); cf. State Compensation Ins. Fund v. Castle Mountain Corp., 227 Mont. 236, 739 P.2d 461 (1987) (imposing primary liability on insured contractor/employer and secondary liability on insured statutory employer). We, however, reject Faraghar's position. Initially, we disagree that co-employee status as to a common employer is legally inconsistent with one of the employees employing the other for workers' compensation purposes. At least two Arizona cases have considered such a relationship legally possible, although the court in each case concluded that its facts did not support that result because there was insufficient evidence that one co-employee had the right to control the details of the other's work. See Special Fund Div., 172 Ariz. at 321-24, 836 P.2d at 1031-34 (setting aside award imposing joint liability for lack of evidence that shingler exercised control over helper); Central Management Co., 162 Ariz. at 192, 781 P.2d at 1379 (affirming award imposing single rather than dual liability because only cab company controlled details of the claimant's work as cab driver). In the instant case, though, Faraghar had the right to control the details of claimant's work as a cold-caller. See, e.g., Home Ins. Co. v. Industrial Comm'n, 123 Ariz. 348, 350, 599 P.2d 801, 803 (1979) (applying right of control test to determine employer-employee relationship). Faraghar set claimant's hours, established her quotas, and judged her efficiency as a cold-caller. Faraghar was personally responsible for paying claimant and was not reimbursed by Chelsea. Also, although subject to Chelsea's approval, Faraghar alone determined whether to hire claimant as his cold-caller. Moreover, while it was Chelsea who ordered claimant's termination, Faraghar also had the right to fire her. We therefore hold that, even if both Faraghar and claimant were employees of Chelsea, the ALJ correctly concluded that claimant was an employee of Faraghar as well. Having held that Faraghar was an employer of claimant, we further conclude that he is liable for her workers' compensation coverage regardless whether claimant's *532 relationship to Chelsea was that of a joint employee, sub-employee, or statutory employee. First, if Faraghar and Chelsea were joint employers of claimant, liability would be joint and several. See 1B A. Larson, Workmen's Compensation Law § 48.45 at 8-5777 to 8-5778 (1986). Next, if claimant were Chelsea's sub-employee, Faraghar would still be liable to claimant. "An agent who employs a subservant or other subagent has the duties and liabilities of a principal to him." Restatement (Second) of Agency § 459 at 378 (1958). The agent/employer consequently may be "required to pay workmen's compensation to an employee who was his servant." See Warren A. Seavey, Subagents and Subservants, 68 Harv.L.Rev. 658, 664 (1955) (citing Lee v. Oreon E. & R.G. Scott Realty Co., 96 S.W.2d 652 (Mo. App. 1936)). Finally, the result does not change if claimant were Chelsea's statutory employee. A.R.S. section 23-902(B) provides: When an employer procures work to be done for him by a contractor over whose work he retains supervision or control, and such work is a part or process in the trade or business of the employer, then such contractors and the persons employed by him, and his sub-contractor ... are, within the meaning of this section, employees of the original employer. The statutory employer statute thus imposes on the original employer the responsibility to provide workers' compensation coverage for the independent contractor's employees. Nothing in the statute, however, suggests that the original employer's responsibility is exclusive, or that the independent contractor is thereby relieved of liability for benefits. See, e.g., Young v. Environmental Air Products, Inc., 136 Ariz. 158, 160, 665 P.2d 40, 42 (1983) (noting that plaintiffs recovered workers' compensation benefits from insured contractor/employer, but subjecting original employer to civil suit only because it did not meet the requirements of a statutory employer); Greenway Baptist Church v. Industrial Comm'n, 130 Ariz. 482, 487, 636 P.2d 1264, 1269 (App. 1981) (stating that, under section 23-902(B), claimant is employee of both the statutory employer and the independent contractor); Hamrick v. Industrial Comm'n, 15 Ariz. App. 277, 279, 488 P.2d 482, 484 (1971) (holding that "a determination by an award that a workman is an employee of a subcontractor does not preclude a subsequent determination that this same workman is an employee of the original contractor"). We also note that, when imposing liability for compensation benefits, a liberal interpretation of section 23-902(B) furthers the purposes of the Workmen's Compensation Act. Young, 136 Ariz. at 163, 665 P.2d at 45. The cases cited by Faraghar are not to the contrary. See Hogan, 785 S.W.2d 263; Mahan, 321 S.W.2d 243; Carlson, 664 P.2d 913; Castle Mountain Corp., 739 P.2d 461. None of them involves a claimant who sought benefits exclusively from the intermediate employer. Instead, they involve claims or suits either against only the master/statutory employer or against both employers. Moreover, not one of the cases holds that the master/statutory employer is exclusively liable. These cases merely establish the liability for compensation benefits, or the concomitant immunity from civil suit, of the master or statutory employer. They do not establish the immunity of the intermediate employer in the case of an exclusive claim. The injured workers in the cases cited by Faraghar simply were seeking recovery from an insured or otherwise financially responsible party. An injured worker in Arizona formerly had the same pragmatic incentive for filing a claim against a master or statutory employer with insurance or deep pockets rather than against an employee/employer or contractor/employer without insurance or resources. See Code 1939, § 56-1231 (Supp. 1952) (treating award for compensable claim as judgment enforceable in superior court). Then, in 1968, the legislature first gave the Commission discretion to pay compensation to claimants of uninsured employers from the special fund. See 1968 Ariz. Sess. Laws Ch. 6, 1014-1015. Finally, in 1973, the legislature mandated compensation from the special fund in such cases. See 1973 Ariz. Sess. Laws Ch. 136, 963, 964. In addition, although a claimant used to have an interest in filing multiple claims if more than one employer paid wages to her, see Butler v. Industrial Comm'n, 50 Ariz. 516, 525, 73 *533 P.2d 703, 706 (1937), a claimant may now receive credit for wages paid by every employer in a claim against any single employer. See Wiley v. Industrial Comm'n, 174 Ariz. 94, 104, 847 P.2d 595, 605 (1993) (amended opinion). Consequently, even if the ALJ is correct that claimant was employed by both Faraghar and Chelsea, claimant had no financial interest in filing a claim against Chelsea. Faraghar is therefore solely responsible for claimant's worker's compensation coverage because of the unique history of her claim: he was the only employer against whom she filed a claim.[3] CONCLUSION We conclude that, regardless of the nature of Chelsea's relationship to either claimant or Faraghar, Faraghar was responsible for providing claimant's workers' compensation coverage because he was her employer, and was the only employer named in the claim. Accordingly, we affirm the award. EHRLICH, P.J., and VOSS, J., concur. NOTES [*] Corcoran, J., of the Supreme Court, did not participate in the determination of this matter. [1] A former stockbroker with Chelsea also appeared and provided corroborative testimony. [2] In stating that both Chelsea and Faraghar were liable, the ALJ evidently meant that Chelsea was liable in the abstract only, since it was not named in the claim and never made a party to the action. [3] The parties with a financial interest, the No Insurance Division and Faraghar, did not attempt to join Chelsea. We accordingly need not address whether the No Insurance Division or Faraghar had the right to request joinder of Chelsea. See Ariz.Admin.Code R4-13-150 (1987) (allowing any interested party to request joinder of other interested party).

592 So.2d 210 (1991) Ex parte Darin Anthony JONES. (Re Darin Anthony Jones v. State). 1901702. Supreme Court of Alabama. December 20, 1991. Thomas M. Goggans, Montgomery, for appellant. *211 James H. Evans, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for appellee. SHORES, Justice. The petitioner, Darin Anthony "Rollo" Jones, was convicted of murder in the Circuit Court of Etowah County and was sentenced to life imprisonment. The Court of Criminal Appeals affirmed. The trial court had admitted as evidence the gun allegedly used by Jones. Jones claims that there was a break in the chain of custody of that gun and, therefore, that the trial court erred in allowing it into evidence. On December 27, 1989, Ishmeal Ransaw, Kevin Traylor, Vada Samuels, and Willie Brown were riding around Gadsden, Alabama, in Traylor's automobile. They were looking for Glenn Williams for the purpose of inflicting some type of harm upon him. They stopped at Shaw's convenience store, where they saw Bobby Rudolph and Jones. Samuels told Jones that they were looking for Williams, and Jones responded by saying that he wanted "a piece of the action." Jones and Rudolph then got into Traylor's car. Traylor drove to Jones's house, where Jones retrieved a shotgun from the trunk of another car. Jones got back into Traylor's car and they drove to a location near Carver Community Center; Samuels also had a shotgun with him. Brown got out of the car and subsequently began fighting with Williams. Ransaw testified that thereafter Jones got out of the car, placed his gun over the top of the car and fired at least two shots; Samuels also began firing shots. Traylor then drove, with Rudolph, Jones, and Samuels, to Atlanta; on the way there, Jones stated "I got him. I got him," and also said that he had shot Williams first. Samuels stated that, as he and Brown were running off, Williams was calling his name, and that he went back and loaded one more shell and shot him again. Samuels also stated that he had hidden his gun by a Marvin's hardware store; on January 15, 1990, Samuels's gun was found beside a Marvin's hardware store. During the trial, Ransaw identified State's exhibit number one as Samuels's gun and identified State's exhibit number 38 as the gun used by Jones. Faye Gary, a lieutenant with the Gadsden Police Department, testified that she received a telephone call on February 26, 1990, at her home, from a confidential informant; she said she met with the informant and at the meeting was given State's exhibit number 38. She testified that she took the gun home with her and kept it until 8:00 a.m. the next morning, when she carried it to city hall and gave it to Lieutenant Jeffrey E. Wright. Lieutenant Gary testified that her informant told her that he was given this gun by an unidentified person and that this unidentified person told Gary that he had bought it for $5 from a small child who had seen it being put in a ditch behind the Carver Community Center. Gary also testified that when she turned the gun over to Lieutenant Wright, it was in the same, or substantially the same, condition as it was in when she received it from the informant. Jones does not dispute the chain of custody of the gun after it was placed into officer Gary's custody. Jones contends only that there was insufficient testimony as to the whereabouts of the gun between the time of the offense and its initial delivery to Lieutenant Gary; therefore, he argues, there was a break in the chain of custody and the gun should have been excluded from evidence. The trial court admitted into evidence exhibit number 38 over Jones's chain-of-custody objection. Jones was found guilty of murder and was sentenced to life imprisonment. The Court of Criminal Appeals affirmed, stating in an unpublished memorandum opinion, 586 So.2d 304, that Jones's chain-of-custody argument was "without merit, because the chain of custody began when the shotgun was seized." We agree. "`To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only *212 to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.'" Laws v. State, 562 So.2d 305, 306 (Ala.Cr. App.1990). "`The purpose for requiring that the chain of custody be shown is to establish to a reasonable probability that there has been no tampering with the evidence. Williams v. State, 375 So.2d 1257 (Ala. Cr.App.), cert. denied, 375 So.2d 1271 (Ala.1979); Tate v. State, 435 So.2d 190 (Ala.Cr.App.1983); Smith v. State, 446 So.2d 68 (Ala.Cr.App.1984). "The evidence need not negate the most remote possibility of substitution, alteration, or tampering with the evidence, but rather must prove to a reasonable probability that the item is the same as, and not substantially different from, the object as it existed at the beginning of the chain." Slaughter v. State, 411 So.2d 819, 822 (Ala.Cr.App.1981) (emphasis supplied).'" Williams v. State, 505 So.2d 1252, 1253 (Ala.Cr.App.1986), aff'd, 505 So.2d 1254, 1255 (Ala.1987). A gun is properly admitted into evidence when it is identified at trial as being the weapon used in the commission of the offense. Sumpter v. State, 480 So.2d 608, 613-14 (Ala.Cr.App.1985). Because there was no link missing from the chain of custody of exhibit number 38 and there was a positive identification of the shotgun by Ransaw, a witness to the murder who had personal knowledge of the gun that Jones took to the scene of the crime and which he saw Jones fire, the trial court correctly admitted the gun into evidence. For the foregoing reasons, the judgment of the Court of Criminal Appeals is due to be affirmed. AFFIRMED. HORNSBY, C.J., and MADDOX, HOUSTON and STEAGALL, JJ., concur.

                                                           COURT OF APPEALS                                                  SECOND DISTRICT OF TEXAS                                                                 FORT WORTH                                             NO. 2-09-138-CR     MICHAEL BLAKE BOURNE                                                     APPELLANT                                                      V.   THE STATE OF TEXAS                                                                STATE                                                 ------------                 FROM THE 355TH DISTRICT COURT OF HOOD COUNTY                                                 ------------                                   MEMORANDUM OPINION[1]                                                 ------------ On April 1, 2009, the trial court entered judgment on the jury=s verdict after the jury found Appellant Michael Blake Bourne guilty of aggravated assault with a deadly weapon and assessed twenty-eight years= confinement as punishment.  Bourne did not file a motion for new trial; therefore, his notice of appeal was due May 1, 2009.  See Tex. R. App. P. 25.2(b), 26.2(a)(1). On June 4, 2009, we notified Bourne=s appellate counsel of our concern that we lacked jurisdiction over this appeal because Bourne=s notice of appeal was not filed in the trial court until May 4, 2009.[2]  We informed him that the appeal was subject to dismissal for want of jurisdiction unless he filed a response on or before June 15, 2009, advising us whether the mailbox rule would apply in this case.  See Tex. R. App. P. 9.2(b).  Bourne=s appellate counsel=s reply, dated June 8, 2009, and received by the court on June 9, 2009, fails to provide this court with a basis to exercise jurisdiction. A notice of appeal that complies with the requirements of rule 26 of the rules of appellate procedure is essential to vest this court with jurisdiction over an appeal.  See Tex. R. App. P. 26.2(a)(1); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).  The court of criminal appeals has expressly held that without a timely filed notice of appeal or motion for extension of time, we cannot exercise jurisdiction over an appeal.  See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (AWhen a notice of appeal is filed within the fifteen‑day period [in rule 26.3] but no timely motion for extension of time is filed, the appellate court lacks jurisdiction.@).  Here, we lack jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction.  See id. at 523.  Therefore, we must dismiss the appeal for lack of jurisdiction.[3]  See Tex. R. App. P. 26.2(a)(1), 43.2(f).   PER CURIAM PANEL:  MCCOY, J.; CAYCE, C.J.; and MEIER, J. DO NOT PUBLISH Tex. R. App. P. 47.2(b)   DELIVERED: July 2, 2009 [1]See Tex. R. App. P. 47.4. [2]Rule 26.3 states that the appellate court may extend the time to file a notice of appeal if, Awithin 15 days after the deadline for filing the notice of appeal, the party:  (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b).@  Tex. R. App. P. 26.3 (emphasis added).  Bourne=s motion for an extension of time would have been due Monday, May 18, 2009.  See id. [3]Although we have determined that we do not have jurisdiction over Bourne=s appeal, he is not without a remedy.  The appropriate vehicle for seeking an out-of-time appeal is by writ of habeas corpus from the court of criminal appeals pursuant to article 11.07 of the code of criminal procedure.  See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2008); Olivo, 918 S.W.2d at 525 n.8; Wright v. State, No. 02-05-00076-CR, 2005 WL 1594367, at *1 n.2 (Tex. App.CFort Worth July 7, 2005, no pet.) (mem. op., not designated for publication).

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 3 2004 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk In re: DAVID HAROLD ABBOTT, Debtor, ______________________________ No. 03-8075 DAVID HAROLD ABBOTT, (BAP No. WY-02-058) (BAP) Appellant, v. MARK R. STEWART, Trustee, Appellee. ORDER AND JUDGMENT * Before EBEL , ANDERSON , and BRISCOE , Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Debtor-appellant appeals the decision of the Bankruptcy Appellate Panel (BAP) affirming the bankruptcy court’s denial of his motion to order the Trustee to return debtor’s tax refund for 2001, to declare that debtor had successfully completed his plan under Chapter 13, and to enter an order of discharge. Upon review of the plan and the parties’ submissions, we REVERSE and REMAND the decision of the BAP for substantially the reasons stated in the panel’s dissent. See Abbott v. Stewart (In re Abbott ), BAP No. WY-02-058 (B.A.P. 10th Cir. Aug. 25, 2003). Entered for the Court David M. Ebel Circuit Judge -2- 

813 F.Supp. 1 (1992) Albert LEWIS, et al., Plaintiffs, v. NATIONAL FOOTBALL LEAGUE, et al., Defendants. Civ. A. No. 91-2685 (RCL). United States District Court, District of Columbia. November 3, 1992. Richard Ben-Veniste, James W. Quinn, Jeffrey L. Kessler, David G. Feuer, Weil, Gorshal & Manges, New York City, for plaintiffs. Herbert Dun, Gregg H. Levy, Sonya D. Winner, Covington & Burling, Washington, DC, for defendants. MEMORANDUM OPINION (Denying Dismissal, Transfer, or Stay) LAMBERTH, District Judge. This matter comes before the court on Defendants' Motion to Dismiss or Transfer or, in the Alternative, for a Stay ("Defendants' Motion"); Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss or Transfer or, in the Alternative, for a Stay of this Action ("Plaintiffs' Opposition"); Defendants' Reply Memorandum in Support of Motion to Dismiss, Transfer, or Stay ("Defendants' Reply"); Plaintiffs' Surreply in Opposition to Defendants' Motion to Dismiss or Transfer or, in the Alternative, for a Stay of this Action ("Plaintiffs' Surreply"); and Defendants' Supplemental Memorandum in Support of Defendants' Motion to Dismiss, Transfer, or Stay ("Defendants' Supplement"). Upon consideration of the representations of counsel, and for the reasons presented below, it is hereby ORDERED that Defendants' Motion to Dismiss or Transfer or, in the Alternative, for a Stay is DENIED. I. FACTS. This case, as amended, was filed in October 1991 by three professional football players against the National Football League and its twenty-eight member teams. The plaintiffs claim damages under the anti-trust laws arising out of the NFL's "Plan B" right of first refusal/compensation system during the 1989 NFL season.[1]*2 The plaintiffs have since filed a motion for class certification on behalf of all players[2] who were subject to Plan B during the 1989 season. This case is one of several cases between football players and the NFL that either have recently been litigated or are currently pending. The first case of recent vintage was filed in the District Court for Minnesota in October 1987. Powell v. National Football League, Civ. No. 4-87-917 (D.Minn.). In that case, nine football players filed a class action lawsuit challenging the first refusal/compensation system then in effect. The NFL claimed that a nonstatutory labor exemption to the anti-trust laws applied. U.S. District Judge David Doty agreed in part, holding that the exemption applied to the player/NFL relationship, but only until negotiations between the NFL and the players reached an impasse as to the particular issue in question. The nonstatutory labor exemption issue was certified to the Eighth Circuit Court of Appeals. That court held that the exemption applied as long as the National Football League Players Association (NFLPA) served as the players' collective bargaining representative. Powell v. NFL, 930 F.2d 1293 (8th Cir.1989), cert. denied, 498 U.S. 1040, 111 S.Ct. 711, 112 L.Ed.2d 700 (1991). In light of this decision, the NFLPA relinquished its role as the players' collective bargaining representative on November 6, 1991, thus terminating the parties' labor relationship. Thereafter, eight players filed suit against the NFL, in the District Court of New Jersey, seeking damages under Plan B for the 1990 NFL season. McNeil v. NFL, Civ. Action No. 90-1402 (D.N.J.).[3] On motion by the NFL, the case was transferred to Judge Doty in Minnesota. A trial jury recently found against the defendants, and damages were awarded to four of the eight plaintiffs. Meanwhile, Judge Doty decertified the class in Powell, on remand from the Eighth Circuit, and dismissed without prejudice the claims of the class members based upon the 1989 season.[4] Finally, on October 15, 1991, the NFL filed a declaratory judgment action in the District Court for Minnesota against three Minnesota-resident football players and the NFLPA. NFL v. NFLPA and Hilton, Civ. No. 3-91-635 (D.Minn.). The suit seeks a declaratory judgment that the NFL bears no anti-trust liability for the first refusal/compensation restriction as applied during the 1989 season. On October 17, 1991, the three named plaintiffs in this suit brought this action against the NFL and its twenty-eight member teams, their claim being that the NFL's application of the first refusal/compensation system in 1989 violated the anti-trust laws. Defendants have now filed this motion to dismiss, transfer, or stay plaintiffs' action. II. DEFENDANTS' ARGUMENTS. In defendants' view, the basis for this motion is "relatively simple": pending litigation in the District Court for Minnesota and the Eighth Circuit render plaintiffs' suit in this forum duplicative, thus justifying a dismissal, transfer, or stay of the present action. Defendants' Reply at 1. Duplicative litigation, defendants argue, is to be avoided whenever the equities allow. By allowing only one suit — the firstfiled *3 suit — to go forward, the court saves resources (both of the court and of the parties) and avoids piecemeal litigation and inconsistent adjudication. On this basis, defendants claim that since Hilton, their Minnesota declaratory judgment action, is the first-filed suit, it should be allowed to proceed. Defendants' Motion at 6-7. The defendants do acknowledge that equitable concerns are relevant to the decision as to which litigation will proceed, yet claim that the equities weigh in their favor. Defendants' first argument is that the present action, as an "exact duplicate" of the first-filed Hilton case, should be dismissed. Defendants' Motion at 8. Defendants claim that the central legal issues raised in this case are "virtually identical" to those in Hilton (at least if the court accepts defendants' claim that the current plaintiffs' claims for damages would be compulsory counterclaims in the Minnesota declaratory judgement action), and thus that "dismissal of this action will not preclude plaintiffs from fully litigating their damage claims." Defendants' Motion at 9. In the alternative, defendants claim that this case should be transferred under 28 U.S.C. § 1404(a) to the District Court for Minnesota, "a court that has related cases pending before it and has developed substantial expertise on the subject." Defendants' Motion at 9. Such a transfer would, it is claimed, further the "interest of justice," 28 U.S.C. § 1404(a), since 1) there is an identical case, Hilton, already filed in Minnesota; 2) pending litigation in Minnesota and the Eighth Circuit might moot this case; and 3) Judge Doty has already handled "an entire family of related cases," Defendants' Motion at 11, and in so doing has acquired "considerable expertise." Defendants claim that these justifications support transfer and consolidation of this case with Hilton, and that transfer would satisfy the "fundamental statutory goals" of 28 U.S.C. § 1404(a) — the conservation of time and resources and consistent adjudications — without causing plaintiffs any significant inconvenience. As evidence of the reasonableness of this determination, the defendants rely heavily on U.S. District Judge Bissell's decision to transfer McNeil v. NFL from New Jersey to Minnesota. Finally, defendants' third alternative is to have this court stay this case pending the decisions of the District Court for Minnesota in Hilton and McNeil and the Eighth Circuit Court of Appeals in Powell. III. ANALYSIS. The defendants' arguments raise several issues of federal civil procedure and federal jurisdiction. However, the simple conclusion defendants would have this court reach is not justified by the facts. Rather, the equitable factors which must support defendants' motion under both the Declaratory Judgment Act, 28 U.S.C. § 2201, and 28 U.S.C. § 1404(a) instead weigh in favor of allowing this litigation to continue in this court. Each of defendants' three alternative motions will be addressed in turn. A. Defendants' Motion to Dismiss: The Hilton Declaratory Judgment Action. One of defendants' main contentions is that this suit should be dismissed because of the pendency of the earlier-filed declaratory judgement action, NFL v. NFLPA and Hilton, in Minnesota. Defendants claim that the two cases involve similar, if not identical, issues of law and fact and therefore should be consolidated in Minnesota. Although this court believes that the two cases may well be consolidated, it should be done in this court. Case law involving a declaratory judgment and an inverse action filed in another jurisdiction typically addresses the role of the district court in which the declaratory judgment action is filed. However, from those cases, it is possible to determine an appropriate role for the second court, as well. In this action, the court finds itself in this "second court" role. 1. First to File Rule. Defendants, having filed the Powell litigation two days prior to the plaintiffs' filing of this case, place heavy emphasis on the first to file rule. This rule typically requires the court of the second-filed case to dismiss or transfer the action before it in *4 favor of comparable litigation previously filed in another jurisdiction. However, that standard is not applied as universally as defendants would have this court believe. In fact, as defendants acknowledge in a footnote, even Columbia Plaza Corp. v. Security Nat'l Bank, 525 F.2d 620 (D.C.Cir.1975), the D.C. Circuit case on which defendants rely for the proposition that duplicative litigation should be avoided, explicitly rejects defendants' contention that the "first to file" rule necessarily determines the proper forum. In Columbia Plaza, the District of Columbia District Court refused to enjoin the prosecution of a second suit in the Southern District of New York; the second suit was based on matters which, the D.C. plaintiffs alleged, would have been a mandatory counterclaim in the D.C. cause of action. The Court of Appeals reversed, holding that the solution to the problem of enjoining duplicative litigation "requires a balancing not of empty priorities but of equitable considerations genuinely relevant to the ends of justice." Id. at 628 (citation omitted). Taking its cue from the Supreme Court, the D.C. Circuit noted that "[t]he factors relevant to the wise administration here are equitable in nature." Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). The court must follow the D.C. Circuit's view that "choice of forum cannot be suitably made by the mechanical application of [the first to file] principle." Columbia Plaza, 525 F.2d at 627. Although the fact that defendants filed their Minnesota case two days prior to the plaintiffs' filing here is relevant, it cannot obscure the fact that equitable concerns and the interest of justice dictate that the action proceed in this court. 2. Equitable considerations. One consideration in determining which action should proceed is whether it appears that the declaratory judgment action was filed in anticipation of litigation by the other party. Ven-Fuel, Inc. v. Department of the Treasury, 673 F.2d 1194 (11th Cir.1982). Courts have held that such a preemptive strike should be disregarded in selecting the proper forum if equitable concerns so merit. See, e.g., Ven-Fuel; State Farm Fire and Cas. Co. v. Taylor, 118 F.R.D. 426 (M.D.N.C.1988); Yoder v. Heinold Commodities, Inc., 630 F.Supp. 756 (E.D.Va.1986); Consolidated Rail Corp. v. Grand Trunk Western R. Co., 592 F.Supp. 562 (C.D.Pa.1984). Anti-trust cases are no exception. See, e.g., Natural Gas Pipeline Co. v. Union Pacific Resources Co., 750 F.Supp. 311 (N.D.Ill.1990) (court dismissed earlier-filed declaratory judgment action in light of later-filed anti-trust lawsuit). In this case, it is clear that the NFL filed Hilton to preempt suits brought by players in other fora. At the time it filed Hilton, the NFL had notice of the McNeil and Allen cases (which are based on claims post-dating 1989). In addition, the NFL clearly expected more suits, including suits based on the 1989 season: as paragraph 50 of the NFL's Class Action Complaint for a Declaratory Judgement in Hilton states, "It appears likely that individual players and the NFLPA will take advantage of the District Court's September 30 Order by filing individual anti-trust lawsuits." Complaint at 19. Moreover, even though the defendants disclaim such a motive here, it was certainly in defendants' best interests to adjudicate this matter in a friendly jurisdiction, the Eighth Circuit, rather than to wait for players to file suits in less comfortable fora, such as New Jersey (McNeil), California (Allen), and Washington, D.C. These elements indicate that the NFL's declaratory judgment complaint was a preemptive strike that does not deserve the protection of the first to file rule. A second equitable concern relevant to the decision to dismiss one of two duplicative lawsuits is that the time of the hearing of the motion to dismiss or transfer, not the time of filing, determines the relevant procedural posture. As of the present time, the existence of this coercive litigation renders moot the declaratory judgment action in Minnesota and argues against the dismissal of this case. As a third concern, a district court is within its discretion to refuse to entertain a *5 declaratory judgment action when another proceeding in another jurisdiction will resolve the issue in its entirety. Sturge v. Diversified Transport Corp., 772 F.Supp. 183 (S.D.N.Y.1991). See also Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620 (1942). Defendants readily admit that this case will indeed resolve all issues of law and fact raised by the Hilton action. And, there is no indication that adjudication will be had more quickly in Minnesota than here. Thus, even though this line of cases addresses the role of the "first court," it offers guidance to this court in its "second court" role. There is no reason to transfer this case to Minnesota when full, fair, and complete adjudication of all issues may be had before this court. Finally, and perhaps most importantly, the plaintiffs have made the District of Columbia their choice of forum for this action in which they litigate harms allegedly done to them by the NFL defendants. That choice must be afforded proper weight and cannot be dismissed merely because defendants opt for a different forum. These considerations render the first to file rule inapplicable to the present situation. The equitable concerns weigh in favor of granting the plaintiffs their choice of forum. Thus, defendants' motion to dismiss will be DENIED. B. Defendants' Motion to Transfer: Forum Shopping, and Equitable Concerns. Defendants have asserted that the "interest of justice" requires a transfer of this case. 28 U.S.C. § 1404(a). Their first arguments, as in their motion to dismiss, concern forum shopping. In addition, they also claim that the equitable considerations demonstrate that this case should be transferred. Finally, as an example, they rely heavily on Judge Bissell's decision to transfer McNeil v. NFL from New Jersey to Minnesota. Each of these contentions are addressed below. 1. Forum Shopping. While each party has accused the other of engaging in impermissible forum shopping in choosing the situs of this lawsuit, it is plainly evident that both sides have filed their respective cases in a jurisdiction favorable to their respective positions. Notwithstanding both parties' protestations of innocence, there is sufficient evidence to indicate that the District of Columbia is the proper forum for this suit. Defendants first claim that Minnesota is the proper forum since it was chosen by the Powell plaintiffs several years ago; defendants claim that the current plaintiffs now should have to abide by that decision. However, although these plaintiffs may have been class members in the Powell case, they were not named plaintiffs and there is no indication that they had any say in where that lawsuit was brought. Thus, there is no reason to bind them to somebody else's strategic decisions. Defendants next assert that the District of Columbia is an improper forum because no plaintiffs reside here, only one resides close to this district (Mr. Paige resides in Silver Spring, Maryland, a suburb of Washington, D.C.), and even he does not wish to serve as a class representative. Defendants' Supplement at 2. These arguments are unavailing. Under 28 U.S.C. § 1391 and 15 U.S.C. § 22, venue is proper here due to the contacts the defendants have with this district. Thus, venue is proper in this district; further confirmation of this determination is supplied by equitable factors. 2. Equitable Concerns. As in the discussion of the motion to dismiss, above, the court finds that, on the whole, the equities run in favor of maintaining this litigation here. Defendants first note that an identical case, Hilton, is pending before Judge Doty. As demonstrated above, however, there is no magic in the fact that a declaratory judgment action has been filed in Minnesota. In fact, as this opinion demonstrates, the interest of justice indicates that Hilton, *6 not this case, should be transferred or dismissed. Defendants next claim that litigation in Minnesota and before the Eighth Circuit might moot this case. Since briefs were filed, however, the McNeil[5] case has been decided against the NFL, thus destroying one of their arguments. In the Defendants' Reply, the NFL places great emphasis on the fact that collateral estoppel might bar the claims in this case if the Eighth Circuit were to decide Powell against the players. Of course, collateral estoppel applies to an individual regardless of the forum, and transfer is thus not justified on that basis. Finally, defendants note the expertise Judge Doty has acquired in NFL anti-trust cases. Of course, this court has already completed a 235-member anti-trust class action against the NFL[6] and has another NFL player anti-trust class action pending.[7] Notwithstanding Judge Doty's expertise, and recognizing that the specific issues in the various cases are not identical, the court feels quite competent in being able to handle the class certification, discovery, and trial matters arising from this particular type of professional football anti-trust case. When these considerations are combined with the plaintiffs' election of forum and defendants' preemptive declaratory judgment action, discussed above, the equitable concerns again weigh against defendants' motion to transfer. 3. Contrast: The decision to transfer McNeil. Finally, the defendants claim that the "fundamental statutory goals" of 28 U.S.C. § 1404(a) (as cited by defendants), the conservation of time and resources and consistent adjudication, require transfer (even though it appears that these would be satisfied by a unified proceeding in either court). To substantiate their claim that Minnesota is the superior forum, the defendants rely on Judge Bissell's decision to transfer McNeil. Defendants fail to acknowledge, however, that the situation facing Judge Bissell was radically different from that facing this court. First, Judge Bissell concluded that "[t]he claims in the two cases presently under review in Minnesota encompass the underlying claims presented in the litigation here." McNeil v. NFL, Civ.Act. 90-1402, slip op. at 12 (D.N.J. June 12, 1990). Judge Bissell then noted that the eight McNeil plaintiffs were also members of the Powell class; thus, the relief sought in McNeil was encompassed by that already sought on behalf of the McNeil plaintiffs by virtue of their membership in the Powell class. On the other hand, this suit, claiming damages for the implementation of the first refusal/compensation system for the 1989 season, is not before Judge Doty; in fact, these claims were omitted from the Powell litigation by Judge Doty's decision. Moreover, these issues have expressly been excluded from consideration by the Eighth Circuit's decision in Powell Thus, the unity of parties and issues evident in McNeil is not present here. Judge Bissell then sought to avoid creating inconsistent adjudications between New Jersey and Minnesota regarding the players' rights. As this court's decision in Brown v. Pro Football, Inc., No. 99-1071, June 4, 1991, has already determined that the NFL faces anti-trust liability for the 1989 season, consistent adjudication regarding the 1989 season may only be had if this case is tried in this court. Moreover, as that decision is in conflict with the decision of the Eighth Circuit, the creation of a split is no longer an issue. 4. Conclusion. Therefore, despite defendants' best efforts to demonstrate that Minnesota is the proper forum for this action, defendants' *7 arguments are unavailing. Rather, there appears to be a race to the courthouse, and the interest of justice, the touchstone of 28 U.S.C. § 1404(a), demands that defendants' victory in that race not prejudice the valid claims of the plaintiffs. The equities, properly considered, justify trial in this jurisdiction. Defendants' motion to transfer is therefore DENIED. C. Defendants' Motion to Stay this Case. Finally, defendants argue that a final alternative would be to stay this lawsuit until the issues are resolved in Hilton, Powell, and McNeil. As discussed above, there is no reason to hold this lawsuit for the declaratory judgment action in Hilton; rather, of the two lawsuits, this one is the superior. Moreover, there is no indication that the Eighth Circuit will reverse Judge Doty's decision in Powell, which closely tracked the Eighth Circuit's first Powell decision. Thus, a stay would only serve to postpone, potentially to plaintiffs' detriment, an inevitable resolution of this case. And finally, the McNeil case has already been decided, and its outcome was not favorable to the NFL. Therefore, a stay of the present lawsuit would serve no purpose and defendants' motion to stay this case is DENIED. IV. CONCLUSION. In short, the defendants won the race to the courthouse and beat the plaintiffs in the filing of their anticipated litigation by two days. However, but for the earlier filing date, the equitable concerns do not weigh in favor of a Minnesota trial. Rather, a proper lawsuit lies in this court, and the motion to dismiss, transfer, or stay the present lawsuit will therefore be DENIED. NOTES [1] Plan B was adopted by the National Football League in February 1989. Under the first refusal/compensation system, a player whose contract has expired with one NFL team may negotiate with other NFL clubs. However, before signing with the second club, the first team is given an opportunity to match the contract the player has negotiated with the second team. If the first team chooses not to match the offer, the second club must compensate the first team with draft choices. [2] Excluded from the class would be the named plaintiffs in Powell v. National Football League, No. 4-87-917 (D.Minn.). See fn. 4. [3] Another player-brought case, Allen v. San Diego Chargers, Civ. No. 91-4342 (C.D.Cal.), is pending, but has been stayed. [4] The NFL has appealed this ruling to the Eighth Circuit. The 1989 claims of the named plaintiffs in Powell were dismissed with prejudice. As a result, the named plaintiffs can not be members of the plaintiff class in this case. [5] Since the NFL's briefs were filed, a jury in the McNeil case found against the NFL and awarded damages to four of the eight plaintiff players. The Powell appeal is still pending before the Eighth Circuit. [6] Brown v. Pro Football, Inc., Civ. No. 90-1071 (RCL) (D.D.C.). [7] Tice v. Pro Football, Inc., Civ. No. 91-2314 (RCL) (D.D.C.).

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0927n.06 No. 12-5869 FILED Dec 15, 2014 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT KARISSA SWEAT, ) ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE MIDDLE JOE SHELTON, ) DISTRICT OF TENNESSEE ) Defendant-Appellant. ) BEFORE: GIBBONS, KETHLEDGE, and STRANCH, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. This § 1983 case arises out of the shooting death of Reginald Wallace by Nashville police officer Joe Shelton. Plaintiff-appellee Karissa Sweat alleges that Shelton violated Wallace’s Fourth Amendment right to be free from excessive force. Shelton appeals the district court’s denial of his motion for summary judgment on the basis of qualified immunity. We conclude that we lack jurisdiction to hear this appeal and therefore dismiss it. I. On the morning of March 12, 2010, someone broke into Kyle Marion’s home. Marion was in his bedroom at the time and called 911. When the police arrived, the intruder had left and several items were missing, including an iPod touch. Shelton, a K-9 officer, was on duty that day with his dog “Memphis.” Shelton heard about the burglary over the radio dispatch and drove to the scene of the crime. An officer at the scene took Shelton to the last place where he No. 12-5869, Karissa Sweat v. Joe Shelton had seen the suspect. Shelton deployed Memphis using a tracking harness and fifteen-foot tracking lead and gave Memphis the command to search for the suspect. Eventually, Memphis ran underneath the deck of a house and Shelton heard someone, later identified as Reginald Wallace, make a noise “like he had had the wind knocked out of him.” Shelton gave Memphis the command to apprehend Wallace, which means that Memphis was supposed to bite Wallace. Shelton looked down to see Memphis and Wallace underneath the deck, but they quickly moved behind the house, still underneath the deck and out of Shelton’s view. Shelton was surprised by Wallace’s lack of reaction to Memphis, explaining that: Typically . . . when [Memphis] came into contact with somebody, there was a lot of screaming, a lot of yelling, people were in fear of the dog. They usually tried to fight off the dog. . . . And it was—95 percent of the time they complied immediately. . . . They were extremely fearful of the dog. And it was as though the dog was not there at all. Shelton ran to the back of the house, laid down on the ground, and saw Wallace put his hand into the right pocket of his pants while attempting to crawl out from underneath the deck. Wallace ignored Shelton’s commands to show his hands and quit resisting. All the while, it appeared that Memphis was biting Wallace or his clothing. Shelton testified that when Wallace put his hand in his pocket, Shelton became fearful that Wallace was trying to access a weapon. In response, Shelton drew his firearm and aimed it at Wallace. Shelton continued giving verbal commands to Wallace, which were ignored. Shelton described the situation as it progressed: He’s struggling to get his hand out of his pocket the whole time he’s crawling. He [came] to the end of the deck, at which point I had actually gotten up. I was laying on the ground with my firearm pointed at him. I had gotten up and started towards the end of the deck in an effort to try to get closer to him when he [came] out from under the deck to try to help control him. His hand [came] out of his pocket. I could see there was nothing in his hand at that time. . . . He reached up and grabbed the deck and pulled himself out from under the deck. . . . Once I saw his hand come out, I immediately holstered my firearm and continued to give him verbal commands to quit resisting. -2- No. 12-5869, Karissa Sweat v. Joe Shelton At that point, Wallace “began kicking [Memphis] wildly.” Shelton advanced toward Wallace and Memphis as Wallace attempted to escape over a fence in the backyard. Shelton pulled Wallace off of the fence and Wallace swung his arm back at Shelton, striking “a glancing blow” on the side of Shelton’s face. Shelton staggered back from the hit. As he approached Wallace again, Wallace put his hand back into the right pocket of his pants. At this point, Shelton was behind Wallace and to his right. Shelton then utilized a technique whereby he “trapped” Wallace’s hand inside his pocket by placing both of his hands on top of Wallace’s hand. Shelton said that he “felt a gun.” More specifically, Shelton said he could feel “what felt like the squared edges of a pistol.” As Wallace’s hand started to come out of his pocket, Shelton “could see what appeared to be a metal, silverish object.” Wallace did not follow Shelton’s continued commands to quit resisting. Shelton explained: “I began to think I was too close to the suspect. I could tell I was losing my hold on him. I went to spin him around to get some distance from him and push off. And I drew my weapon and fired.” Shelton shot Wallace three times without pausing between shots. Wallace fell to the ground after he fired the third shot. Shelton said that he fired the shots because he “was in fear of being shot by Mr. Wallace.” The object in Wallace’s pocket was the iPod touch owned by Marion. Wallace died that day. On June 15, 2010, Quiana Johnson, Karissa Sweat, and Waynnesia Brooks1 filed suit against the Metropolitan Government of Nashville and Davidson County, Joe Shelton, and John Doe police officers. The complaint alleges that the defendants violated Johnson’s constitutional rights, including his right to be free from unreasonable search and seizure under the Fourth Amendment. Plaintiffs also brought several state law claims. The district court issued an order 1 Quiana Johnson is the mother of Wallace’s son; Karissa Sweat was married to Wallace at the time of his death; Waynnesia Brooks is Wallace’s daughter. (DE 1, Compl., 1–2.) An amendment to the complaint, filed on July 19, 2010, added William Wallace, Wallace’s brother, as a plaintiff. (DE 22, Amend. to Compl., 89.) Only Sweat is a party to this appeal. -3- No. 12-5869, Karissa Sweat v. Joe Shelton on September 13, 2010, dismissing all of the claims except Sweat’s § 1983 claims against Shelton and the John Doe police officers in their individual capacities based on alleged violations of the Fourth Amendment. After completion of discovery, Shelton moved for summary judgment on the basis of qualified immunity. The district court denied this motion, reasoning that it could not conclude, as a matter of law, that Shelton’s use of force was reasonable. Shelton timely appealed. II. We first consider our jurisdiction over this appeal. Under the collateral order doctrine, this court has jurisdiction pursuant to 28 U.S.C. § 1291 to review the district court’s interlocutory denial of qualified immunity to the extent that it turns on an issue of law. Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 495 (6th Cir. 2012). “A defendant raising a qualified immunity defense ‘may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial.’” Id. (quoting Johnson v. Jones, 515 U.S. 304, 319–20 (1995)). However, “a defendant denied qualified immunity may appeal . . . if the issue on appeal is whether the plaintiff’s facts, taken at their best, show that the defendant violated clearly established law.” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680 (6th Cir. 2013). “The district court’s characterization of the basis for its ruling is not dispositive.” Stoudemire v. Michigan Dep’t of Corr., 705 F.3d 560, 564 (6th Cir. 2013). Even if the district court stated that it denied a defendant’s motion for summary judgment because of the existence of a genuine issue of material fact, we may exercise appellate jurisdiction over purely legal issues related to qualified immunity. Id. Although the parties have not briefed the jurisdictional issue, we have “‘a duty to consider sua sponte whether appellate -4- No. 12-5869, Karissa Sweat v. Joe Shelton jurisdiction is properly invoked.’” Martin v. City of Taylor, 509 F.3d 234, 251 (6th Cir. 2007) (quoting Mattingly v. Farmers State Bank, 153 F.3d 336, 336 (6th Cir. 1998)). III. While challenges to the district court’s factual findings are the thrust of Shelton’s appeal, he also makes two arguments that he seeks to characterize as legal. Stated simply, they are that (1) the district court applied the wrong legal standard by examining the actual threat to Shelton instead of Shelton’s reasonable perception of a threat, and (2) the district court inappropriately applied the standard of Tennessee v. Garner, 471 U.S. 1 (1985), to this case. Both arguments rely on inaccurate characterizations of the district court order. Shelton is correct that the district court’s denial of summary judgment is partly based on the threat actually imposed by Wallace. Shelton is also correct that this question is not the ultimate question for the jury. The ultimate question is whether Officer Shelton’s actions were objectively reasonable in light of the facts and circumstances. Thus, the reasonableness of Shelton’s perception that Wallace was a threat and the reasonableness of his response to that perception would be at issue. But Shelton does not fairly and completely read the district court’s order. The district court refers to the correct standard. It also cites case law noting that whether a threat actually exists is relevant to the reasonableness of the officer’s actions. See Ciminillo v. Streicher, 434 F.3d 461, 467 (6th Cir. 2006). As is clear from Shelton’s brief, this argument quickly changes from a legal argument to an attack on the district court’s factual findings. The other so-called legal argument is merely a criticism of the district court’s choice to cite Garner in passing. While this case is, as Shelton suggests, more properly categorized as a self-defense case, as opposed to a fleeing felon case, the district court’s opinion makes clear that it understood the applicable law. -5- No. 12-5869, Karissa Sweat v. Joe Shelton IV. We now turn to the heart of the matter. The basis for the appeal is the district court’s finding that genuine issues of material fact existed as to whether Wallace actually posed an immediate threat to Shelton and whether it was reasonable for Shelton to believe that the object Wallace had in his pocket was a weapon. Precedent precludes our review of these findings in the context of an interlocutory appeal challenging denial of qualified immunity. Johnson, 515 U.S. at 319–20 (“[A] defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.”); see also Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014) (“[A]n order denying summary judgment based on a determination of ‘evidence sufficiency’ does not present [an immediately appealable] legal question”); Romo v. Largen, 723 F.3d 670, 674 (6th Cir. 2013).2 Any skepticism we may have concerning the correctness of the district court’s findings that fact issues exist concerning Shelton’s conduct provides no basis for an exception to this rule. We may reverse a finding of a genuine issue of fact only “where the trial court’s determination 2 In Romo, the district court denied officer Jeff Largen’s qualified-immunity summary judgment motion, holding that there were genuine issues of fact regarding whether Largen truly pulled over the same driver he saw commit a traffic violation and whether he truly felt heat radiating from the hood of the truck, allegations inconsistent with plaintiff Candido Romo’s contention that he had been sleeping in his truck on a cold night when Largen approached. 723 F.3d at 673. This court declined jurisdiction: we noted that “the limitations on interlocutory appeals of qualified immunity denials [require us] to accept the district court’s finding that a genuine dispute of material fact existed as to whether Largen fabricated the whole or a part of his story,” and we “refuse[d] to consider Largen’s factual disputations to the contrary.” Id. at 674 (citing Johnson, 515 U.S. at 319–20). The Romo court also noted a narrow exception to Johnson for certain district court orders determining whether the pretrial record sets forth a genuine issue of fact for trial in the qualified-immunity summary judgment posture: a district court’s determination that an issue of fact is “genuine” is reviewable only if the district court’s finding is blatantly and demonstrably false, such that no reasonable jury could believe the plaintiff. Id. at 675 n.3 (internal citations omitted). -6- No. 12-5869, Karissa Sweat v. Joe Shelton that a fact is subject to reasonable dispute is blatantly and demonstrably false.” Romo, 723 F.3d at 675 n.3 (internal quotation marks omitted). The infirmity of the district court’s findings arises from two sources. First, there is a real question about whether, on this record, the jury could disbelieve Shelton’s account of the events leading up to the shooting. Typically, “summary judgment is not appropriate where the opposing party offers specific facts that call into question the credibility of the movant[’]s witnesses.” TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151, 1158 (Fed Cir. 2004). But “when challenges to witness’ credibility are all that a plaintiff relies on, and he has shown no independent facts—no proof—to support his claims, summary judgment in favor of the defendant is proper.” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008); TypeRight, 374 F.3d at 1158. Sweat offers no evidence calling into doubt the veracity of Shelton’s testimony, and Shelton’s deposition, read in context, is not inconsistent and does not conflict with other evidence. Sweat argues that Shelton lacks credibility because, had he truly believed his life was in danger, he would have employed lethal force when he first thought Wallace (then under the house) had a weapon. This argument may overlook the evidence that Shelton fired only after he felt a silver, hard, and square-edged object in Wallace’s pocket and after observing Wallace’s continued refusal to follow Shelton’s demands, but that is not for this court to decide. Second, there is a question about the weight given by the district court to expert Phillip Davidson’s testimony. “Although juries are generally free to believe expert witnesses, a plaintiff cannot survive summary judgment with an expert’s bare opinion on the ultimate issue.” Hirsch v. CSX Transp., Inc., 656 F.3d 359, 363 (6th Cir. 2011) (internal citation omitted). “‘[A]n expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.’” Brainard v. Am. Skandia Life Assurance Corp., 432 F.3d 655, 664 (6th Cir. 2005) (quoting Mid- -7- No. 12-5869, Karissa Sweat v. Joe Shelton State Fertilizer Co. v. Exch. Nat’l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989)). In Fourth Amendment excessive force cases, once the court has drawn all reasonable inferences in favor of the nonmoving party, the determination of whether the defendant’s actions were reasonable under the Fourth Amendment is a question of law. Scott, 550 U.S. at 381 n.8. It is unclear whether Davidson offers more than his conclusion on this question of law or whether his opinion helps the trier of fact to understand the evidence or determine a fact in issue. The difficulties posed by the district court’s determinations of the existence of genuine issues of fact do not, however, rise to the level of blatant and demonstrable falsity. See Romo, 723 F.3d at 675 n.3 (internal citations omitted). Thus, we may not review them in this context. V. Johnson and our court’s interpretation of it require that we dismiss the appeal for lack of jurisdiction. -8- 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-00-00243-CR Edward Bell, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. B-98-0433-S, HONORABLE DICK ALCALA, JUDGE PRESIDING Appellant Edward Bell appeals his conviction for capital murder. Tex. Pen. Code Ann. § 19.03(a)(3) (West 1994). After the jury found appellant guilty, the trial court assessed punishment at life imprisonment, the State having waived the death penalty. Points of Error Appellant advances three points of error. First, appellant challenges the legal sufficiency of the evidence to support his conviction for capital murder. Second, appellant urges that the trial court erred in overruling his objection to an application paragraph of the jury charge relating to parties in this capital murder case for remuneration. Appellant contends that he could not be guilty as a party when the primary actor, Luis Ramirez, was not guilty of this aggravated element (remuneration) of the offense charged. Third, appellant contends that under Rule 403 of the Texas Rules of Evidence, the trial court erred in admitting into evidence a handwritten note of Luis Ramirez found in appellant's wallet because its probative value was outweighed by the danger of unfair prejudice and the needless presentation of cumulative evidence. We will affirm the conviction. Indictment The indictment in pertinent part charged that appellant on or about April 8, 1998 "did then and there intentionally cause the death of an individual, namely, Nemecio Nandin, by shooting the said Nemecio Nandin with a deadly weapon, to wit: a firearm, for remuneration and the promise of remuneration from Luis Ramirez." Background The facts of the case are important in view of appellant's claim that the evidence is legally insufficient to sustain the capital murder conviction, and to place the other points of error in proper perspective. On April 16, 1998, the decomposing body of twenty-nine year-old Nemecio Nandin was found buried in a shallow grave near the home of Richard and Lana Riordon on a fifty-acre tract between Orient and Tennyson in far northeast Tom Green County. The medical examiner determined that the cause of death was two shotgun blasts to the head, at least one of which was caused by a twenty-gauge shotgun. Nandin was a firefighter for the San Angelo Fire Department. His off-duty business was repairing washing machines and dryers. Nandin was last heard from around noon on April 8, 1998, when he called his girlfriend, Carla (1) Bewick, to tell her he was headed to a business call to repair a washer and a dryer, and that he would call her when he got back into San Angelo that evening. Bewick, who testified that her relationship with Nandin was an on-again, off-again one, related that when Nandin did not call as promised and did not respond to her calls to his cell phone or pager, she became concerned. Later in the day, when she went to the Wal-Mart store on North Bryant Street in San Angelo, she saw Nandin's pick-up truck with a washer and dryer parked near the rear of the store. The truck was unlocked. Nandin was not to be found in the store. When Bewick returned to the store later in the evening, the truck was still there. She was unable to contact Nandin the next morning at the fire department. He had not reported for work. His co-workers organized a search. As noted, his body was found on April 16, 1998. Dawn Ramirez Holquin had remarried after the offense but prior to the time of the trial. She testified that she married Luis Ramirez in 1985. They had two children and lived in Las Vegas, Nevada, before moving to San Angelo in 1992. She related that Luis was an angry, jealous, and domineering man who had to be in control of everything; that their marriage was very turbulent, very violent and "not happy"; and that she got a divorce in November 1995. Dawn testified that she did not date for a long period after the divorce because of Luis's jealousy. He told her that "it drove him crazy to think that you are with other men." Dawn related that she first met Nemecio Nandin in June 1995 when he repaired her dryer. She encountered him again in October 1997 when he came to the Town and Country store, where she was employed, to purchase hot chocolate. He called her at work that evening to thank her for the hot chocolate. Luis was in the store at the time. She and Nandin began dating. Dawn decided to move to Austin to get away from Luis. On Saturday, December 20, 1997, Nandin came by her San Angelo home at 7:30 a.m. to tell her goodbye. While Nandin was there, Luis began telephoning, telling Dawn to get rid of whomever was there. She learned that Luis was calling from a grocery store two blocks away. After Luis had called seven or eight times, Nandin took the phone and told Luis to leave Dawn alone and that her life was none of Luis's business. Later, Dawn heard a noise and opened the front door to find her children there. She saw Luis driving away. It was Luis's weekend with the children and he had only picked them up the night before. Dawn revealed that she saw Nandin again on December 26, 1997, when she brought the children to San Angelo for their visitation with their father; that on the last week-end in March 1998 Nandin came to Austin to see her; that the following week-end in early April 1998, her children returned from their visitation with their father; that her daughter reported that her father (Luis) had become upset when told the children liked Nandin; and that Luis had stated he would take care of the problem. Dawn related that Luis had once told her that "if he found out that I was with another man, he would kill him and then come after me." From around Thanksgiving Day of 1997 until the early part of April 1998, appellant Bell, his girlfriend, Lisa McDowell, and a young child lived with the Riordons on their property near the Tennyson Road where Nandin's body was later found. Due to the objections of the Riordons' landlord, appellant, McDowell, and the child moved in with Timothy and Nicole Hoogstra in their house in San Angelo. Hoogstra and appellant had been co-workers on several different construction sites. Neither appellant nor McDowell had jobs at the time they moved. Shortly after the move when Hoogstra was working on his truck, appellant told him that a man named "Luis" was going to hire him (appellant) to kill a fireman for $1,000.00. Later, appellant told Hoogstra that he "had done it" and to watch for it on the news. When Hoogstra learned that Nandin, a fireman, was missing, he questioned appellant about the matter. Appellant told Hoosgstra that "they" (appellant Bell and Luis Ramirez) had lured Nandin to a location on Tennyson Road to service a washer and dryer; that "they" put a gun to Nandin's head and placed handcuffs on Nandin; and that "they" blew Nandin's brains out with a shotgun and buried Nandin's body behind a chicken house. Appellant explained that the ground was "real hard," Nandin was a big man, and they had a difficult time in burying the body. Hoogstra recalled that appellant "giggled" when relating that "they" blew the fireman's brains out. While appellant did not specifically say who fired the shots, he later told Hoogstra that Luis Ramirez had pulled the trigger. Appellant explained that he and Luis had done this to Nandin because the fireman was seeing Luis's wife, or Luis was seeing the fireman's wife, "one way or the other." Appellant also told Hoogstra that after the burial, he put on gloves and drove Nandin's pick-up truck back to San Angelo and parked it at the rear of the old Wal-Mart store on North Bryant. Appellant left the washer and dryer in the truck, but threw away Nandin's cell phone and pager. Later, appellant gave Hoogstra a pair of handcuffs which he said had been used on Nandin. After appellant left for Tyler, Hoogstra gave the handcuffs to the police. These handcuffs were shown to be the same brand of handcuffs purchased by Luis Ramirez in 1991 in Las Vegas, Nevada, where Ramirez worked briefly as a security guard. On April 14 or 15, 1998, Hoogstra went with Lee Westerman to do construction work on a lake house in Brownwood. Hoogstra told Westerman of his conversation with appellant. Westerman had Hoogstra call Crime Stoppers from Brownwood. Either that day or another in April when Westerman brought Hoogstra home, Westerman met appellant. Appellant told Westerman that the police had been at Hoogstra's home that day, and he did not know whether it was because of a fight with his girlfriend, or whether it was for the "other thing" that would "get him either life or death in prison." Lisa McDowell, appellant's girlfriend, related that early on the morning of April 8, 1998, she and appellant had gone to the Riordons' home on Tennyson Road to pick up some clothes they had left behind when they moved. After the Riordons went to work, she got into an argument with appellant. She left him behind and took her infant son and drove to her aunt's house in San Angelo. That afternoon, Luis Ramirez dropped appellant off at the aunt's house. Appellant and McDowell then drove to the Miles High School to pick up the Riordon children from school as McDowell had promised. On the way, McDowell observed appellant throw a latex glove or gloves out of the car window. Sometime later, McDowell returned to this particular stretch of highway with police officers. A latex glove was found as well as the keys to Nandin's pick-up truck. On April 16, 1998, appellant and McDowell left San Angelo for Tyler. He supposedly had a construction job in the area. Appellant had $200 which he told McDowell had been given to him by Luis Ramirez. Appellant was arrested in a trailer park near Whitehouse, south of Tyler. Appellant and McDowell both signed consent forms giving the officers permission to search the Mercury Cougar automobile in which they had traveled. In the search, the officers found appellant's wallet near the front seat. In it were two business cards of Luis Ramirez, and a handwritten note containing directions to two residences in Austin and descriptions of three motor vehicles. According to Dawn Ramirez Holquin, Ramirez's ex-wife, the note was in Luis Ramirez's handwriting and the residences and vehicles described belonged to her and her uncle. In the trunk of the searched automobile, a pair of Bugle Boy jeans were found. After testing, it was determined that the DNA from the blood stains on the jeans matched the DNA of the deceased, Nemecio Nandin. Ginger Herring, Luis Ramirez's girlfriend, testified that Ramirez owned a pair of Bugle Boy jeans. McDowell testified that when she and appellant were throwing things into a trash dumpster before leaving San Angelo, she found the jeans in the trunk of the car, that they were not appellant's, but he would not let her throw them away. A search of the Riordon house uncovered three shotguns--two twenty-gauge shotguns and one sixteen-gauge shotgun. Lana Riordan testified that the two twenty-gauge shotguns were in working order, but not the sixteen-gauge shotgun. She related that appellant and McDowell had arrived at her house early on the morning of April 8, 1998, and when she returned that evening one of the twenty-gauge shotguns had been moved from its regular place and left in another room. After his arrest, appellant wrote a letter to McDowell from the Tom Green County jail. McDowell kept the letter two months before revealing it to a friend. The letter was introduced into evidence describing, inter alia, how Nandin was killed by Ramirez in appellant's presence, how the body was buried, how he was given money by Ramirez which had been taken out of Nandin's wallet, and how he drove Nandin's truck to the Wal-Mart store. Appellant relied upon some of the self-serving statements in the letter introduced by the State to support his defense of duress. Appellant offered no defensive testimony. Jury Charge--Parties In submitting the case to the jury, the trial court inter alia, instructed the jury abstractly on the law of parties. In paragraph 4, an application paragraph, the trial court charged the jury on capital murder in accordance with the allegations of the indictment. Then separating the paragraph with an "OR," the trial court applied the law of parties to the capital murder. In paragraph 5, the trial court likewise submitted the lesser included offense of murder in the same fashion. The trial court also charged the jury on the affirmative defense of duress. Legal Sufficiency In his first point of error, appellant contends that the evidence is legally insufficient to support the capital murder conviction because (1) the evidence is legally insufficient to show that "he was the triggerman," and (2) insufficient to show his guilt as a party "because there was no evidence that the principal, Luis Ramirez, committed the murder for remuneration." By his expressed contention, appellant challenges only the legal sufficiency of the evidence. The Standard of Review The standard for reviewing the legal sufficiency of evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Skillern v. State, 890 S.W.2d 849, 879 (Tex. App.--Austin 1994, pet. ref'd). The standard of review is the same in both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992). The State may prove its case by circumstantial evidence if it proves all of the elements of the charged offense beyond a reasonable doubt. Easley v. State, 986 S.W.2d 264, 271 (Tex. App.--San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319). The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact in isolation need not establish the guilt of the accused. Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). It is important to remember that all the evidence the jury was permitted, properly or improperly, to consider must be taken into account in determining the legal sufficiency of the evidence. Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.--Austin 1997, no pet.). The jury is the exclusive judge of the facts proved, the weight to be given the testimony, and the credibility of the witnesses. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury is free to accept or reject any or all of the evidence presented by either party. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The jury maintains the power to draw reasonable inferences from basic facts to ultimate facts. Welch v. State, 993 S.W.2d 690, 693 (Tex. App.--San Antonio 1999, no pet.); Hernandez v. State, 939 S.W.2d 692, 693 (Tex. App.--Fort Worth 1997, pet. ref'd). Moreover, the reconciliation of evidentiary conflicts is solely within the province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence. Rather, it is to position itself as a final due process safeguard insuring only the rationality of the fact finder. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). It is not the reviewing court's duty to disregard, realign, or weigh the evidence. Id. The jury's verdict must stand unless it is found to be irrational or unsupported by more than a "mere modicum" of evidence, with such evidence being viewed in the Jackson light. Id. The legal sufficiency of the evidence is a question of law. McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.--Fort Worth 1996, pet. ref'd). Law of Parties "A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Tex. Pen. Code Ann. § 7.01(a) (West 1994); Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996). Thus, under the law of parties, the State is able to enlarge a defendant's criminal responsibility to acts in which he may not be the primary actor. Tex. Pen. Code Ann. § 7.01(b) (West 1994); Rome v. State, 568 S.W.2d 298, 300 (Tex. Crim. App. 1997) (op. on reh'g); Rosillo v. State, 953 S.W.2d 808, 812 (Tex. App.--Corpus Christi 1997, pet. ref'd). The law of parties may be applied even though no such allegation is contained in the indictment. Jackson v. State, 898 S.W.2d 896, 898 (Tex. Crim. App. 1995); Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989); Pitts v. State, 569 S.W.2d 898, 900 (Tex. Crim. App. 1978); Howard v. State, 966 S.W.2d 821, 824 (Tex. App.--Austin 1998, pet. ref'd). Section 7.02 of the Texas Penal Code provides in pertinent part: a person is criminally responsible for an offense committed by the conduct of another if * * * acting with intent to promote or assist the commission of the offense, he solicits encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(3) (West 1994). The test for determining when an instruction should be submitted to the jury on the law of parties was set forth in McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974), and quoted in Goff, 931 S.W.2d at 544-45. It need not be restated here. When the evidence is sufficient to support both the primary actor and party theories of liability, as in the instant case, the trial court does not err in submitting an instruction on the law of parties. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994); Webb v. State, 760 S.W.2d 263, 267, 275 (Tex. Crim. App. 1988); Rosillo, 953 S.W.2d at 814. Evidence is sufficient to convict under the law of parties if the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom, 920 S.W.2d at 302; Rosillo, 953 S.W.2d at 814. Clearly, there was more evidence here than encouragement by appellant Bell so as to constitute him a party, if in fact Luis Ramirez was the primary actor. The trial court submitted the theory to the jury that appellant was the primary actor in killing Nandin for remuneration as alleged in the indictment. In the alternative, the trial court submitted the theory of parties if the jury found that Luis Ramirez was the primary actor and that appellant for remuneration aided Ramirez in the killing. The jury returned a general verdict--"We, the jury find the defendant EDWARD BELL, guilty of CAPITAL MURDER as charged in the indictment." Appellant argues, however, that the evidence is insufficient to show that he was the primary actor as alleged. Appellant told Hoogstra that he had been hired to kill a fireman for $1,000. He later told Hoogstra that "he (appellant) had done it" and to watch the news. Still later, appellant told Hoogstra that "they" had lured Nandin to the location of the killing, "they" had handcuffed Nandin, and "they" had blown Nandin's brains out with a shotgun. Nandin died from two shotgun blasts, one of which was a twenty-gauge shotgun. The medical examiner, because of the body's condition, could not determine what type of shotgun inflicted the other wound. Two twenty-gauge shotguns in working condition were found at the location of the murder. The medical examiner was unable to determine if the same shotgun was used to inflict both wounds. The deadly blasts could have been fired from separate shotguns, one by appellant and one by Ramirez, or could have been fired by the same shotgun. The jury as the trier of fact could have found that appellant was a primary actor. In fact, the jury could have found from the evidence that appellant and Ramirez were both primary actors. It was only later that appellant told Hoogstra that Ramirez pulled the trigger. This fact was reiterated in appellant's jail letter to McDowell. The jury was not required to accept this evidence that Ramirez was the lone gunman. Given all the circumstances, we reject appellant's claim that the evidence was insufficient for a rational jury to find beyond a reasonable doubt that appellant was a primary actor in this capital murder. Appellant also urges that if the evidence was sufficient to show that he was a party to the offense for remuneration, the evidence is insufficient to show that he was guilty of capital murder. Appellant argues that this is so because the indictment's allegation of an aggravating element making murder a capital offense was remuneration or the promise of remuneration. Appellant contends that the primary actor was Ramirez and that the court's charge did not require the jury to find that Ramirez murdered Nandin for remuneration or the promise of remuneration, and that without that requirement and a finding by the jury, the offense was not a capital offense. Therefore, appellant asserts that if he is guilty as a party to the offense, it is not a capital offense of which he is guilty and that the conviction imposed cannot stand. Appellant overlooks the law of parties and the fact that section 19.03(a)(3) provides that a person who commits murder and "commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration" is guilty of capital murder. Tex. Pen. Code Ann. § 19.03(a)(3) (West 1994). (Emphasis added.) We do not understand appellant to challenge the remuneration issue. In this regard, appellant cites no authorities and there is no argument except that inherent in his assertion. This briefing fails to comply with Rule 38.1(h) of the Texas Rules of Appellate Procedure. When different theories are submitted to the jury in the disjunctive as in the instant case, a general verdict is sufficient if the evidence supports one of the theories. Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992); Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex. Crim. App. 1991); see also Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999); Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex. Crim. App. 1995). We conclude that a rational jury could have found beyond a reasonable doubt all the essential elements of the offense charged under either of the two theories submitted to the jury. The first point of error is overruled. Jury Charge Error Claimed In his second point of error, appellant contends that the "trial court committed reversible error by overruling appellant's objection to the application paragraph of the charge." In his brief, appellant directs us to the application of the law of parties to the facts in the second part of paragraph 4 of the jury charge. Appellant, in his trial objection, contended that the State was not entitled to a charge on the law of parties, that appellant was entitled to a "straight up" charge--"he either did capital murder or he did not, under this indictment." Appellant's argument was that he was charged with capital murder for remuneration or promise of remuneration and that Luis Ramirez, the primary actor in any parties charge, was not shown to have committed murder for remuneration or promise of remuneration. Therefore, appellant contends that he could not be a party to the offense committed by Ramirez. This is the same contention that appellant advanced in his challenge to the sufficiency of the evidence. Murder is defined in section 19.02(b)(1). Tex. Pen. Code Ann. § 19.02(b)(1) (West 1994). Murder becomes capital murder if it is committed under certain circumstances, limited and set forth in section 19.03. Id. § 19.03. Appellant was charged under section 19.03(a)(3) which provides that murder becomes a capital offense if "the person commits the murder for remuneration or promise of remuneration or employs another to commit the murder for remuneration of promise of remuneration." (Emphasis added.) As noted earlier, the law of parties may be applied even without any parties allegation in the indictment. Pitts, 569 S.W.2d at 900. There was evidence that Ramirez employed appellant to murder Nandin for remuneration or promise of remuneration, thus indicating his guilt under the very same subsection of section 19.03 under which appellant was charged. In addition, the evidence shows Ramirez was a primary actor in the murder of Nandin along with his hired help--appellant. Appellant cites no authorities supporting his contention (2) and his argument is of little persuasion. We find no error in the trial court's action in overruling the objection to the jury charge. The second point of error is overruled. The Note In the third point of error, appellant contends that the "trial court erred in admitting into evidence an extraneous offense or bad act, in violation of Rule 403 of the Rules of Evidence." Despite the language, appellant presents an issue under Rule 403, not Rule 404(b). (3) Appellant has reference to the introduction of a handwritten note found in appellant's wallet during the search of the Mercury Cougar automobile in east Texas when appellant was arrested. Before the jury, Jack Allen, Special Investigator of the Texas Department of Public Safety, identified the note on a yellow piece of paper and two business cards of Luis Ramirez as being found in the wallet. When the State sought to introduce the note into evidence during the re-direct examination of Dawn Ramirez Holquin, a hearing in the absence of the jury was conducted. The trial court overruled appellant's Rule 403 objection and his subsequently urged Rule 404(b) objection. Appellant complains that the introduction of the note "permitted the jury to speculate about an unaccomplished extraneous offense, the murder of Luis Ramirez's ex-wife." Appellant relies upon the note and a threat made by Ramirez to his ex-wife, Dawn. Appellant concedes, however, that the note is relevant evidence. (4) He argues that in light of Rule 403 the note's probative value was outweighed by the danger of unfair prejudice and the needless presentation of cumulative evidence. The note in question, which was in the handwriting of Ramirez according to Dawn, gave highway directions from Brady to Austin and further directions to two different street addresses in Austin and a general description of three motor vehicles. Dawn testified that the street addresses were those of her home and her uncle's home. Two of the vehicles described belonged to Dawn's uncle and the other was hers. Dawn had earlier testified that Ramirez had told her it drove him crazy to think of her with another man, and that if he found her with another man that he would kill him "and come after her." Rule 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403 The factors listed in Rule 403 are the only ones to be balanced against probative value. The absence of "such as" or a similar introductory phrase indicates that the listed factors are not merely examples. The first three factors--unfair prejudice, confusion and misleading--are termed "dangers," whereas delay and cumulativeness are referred to as "considerations." The former are weightier because they threaten the integrity of the fact-finding process, whereas the latter are concerned with efficiency. 2A Steven Goode, et al., Texas Practice: Courtroom Handbook on Texas Evidence 283 (2001 ed.). Rule 401 defines "relevant evidence." Tex. R. Evid 401. (5) Rule 402 pronounces all relevant evidence admissible unless barred by certain constitutional and statutory provisions. Tex. R. Evid. 402. Rule 403 places discretion in the trial court to temper somewhat the breadth of Rule 402. The trial court is authorized to weigh the probative value of relevant evidence against the countervailing dangers and considerations set forth in Rule 403. Rule 403 favors the admissibility of evidence in close cases in keeping with the presumptions of admissibility of relevant evidence. Moreno v. State, 22 S.W.3d 482, 487 (Tex. Crim. App. 1999) (quoting Montgomery, 810 S.W.2d at 389); Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). The standard of review of a trial court's decision under Rule 403 is an abuse of discretion. The trial court's ruling will be upheld so long as it is within "the zone of reasonable disagreement." Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996); see also Moreno, 22 S.W.3d at 487; Poole v. State, 974 S.W.2d 892, 897 (Tex. App.--Austin 1998, pet. ref'd). Unfair Prejudice We turn now to appellant's claim that the probative value of the note was substantially outweighed by the danger of unfair prejudice. Any evidence presented by the prosecution will generally be prejudicial to the defendant in a criminal case. Wyatt v. State, 25 S.W.3d 18, 26 (Tex. Crim. App. 2000); Ford v. State, 26 S.W.3d 669, 675 (Tex. App.--Corpus Christi 2000, no pet.). "In one sense, almost every piece of evidence introduced at trial can be said to be prejudicial to one side or the other." Blakeney v. State, 911 S.W.2d 508, 516 (Tex. App.--Austin 1995, no pet.). Consequently, only evidence that is unfairly prejudicial is excluded. Cabellero v. State, 919 S.W.2d 919, 922 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd); Blakeney, 911 S.W.2d at 516. Unfair evidence is that evidence which has an undue tendency to suggest a decision be made on an improper basis, commonly an emotional one. Montgomery, 810 S.W.2d at 389; Ford, 919 S.W.2d at 922. Appellant contends that the note in Ramirez's handwriting and found in appellant's possession, when taken with Ramirez's threat to Dawn, could have caused the jury to speculate a second conspiracy was afoot. Thus, the introduction of the note resulted in unfair prejudice. The note was not signed and not dated. It was not addressed to anyone. Dawn moved to Austin in December 1997. She testified that Ramirez had visitation rights with their children and he had returned them to Austin one weekend. Dawn related that Nandin visited her in Austin the last weekend in March 1998 before his death on April 8, 1998. The time of the threat against all of Dawn's boyfriends was not established, but it was apparently after the Ramirez divorce in 1995. Appellant urges that we apply the four-pronged relevance criteria set forth in Montgomery, 810 S.W.2d at 389-91, for determining whether the probative value of an extraneous offense is substantially outweighed by the danger of unfair prejudice. Appellant overlooks the fact that the introduction of the note, even taken together with the earlier threat by Ramirez, does not constitute an extraneous offense by appellant Bell (6) to which the relevance criteria would apply. (7) The probative value of the note found in appellant's wallet with Ramirez's business cards was not substantially outweighed by the danger of unfair prejudice. Cumulative Evidence Unlike the "danger" of unfair prejudice, the "consideration" of the needless presentation of cumulative evidence found in Rule 403 is concerned with the efficiency of judicial proceedings rather than the threat of inaccurate decisions. See Alvarado v. State, 912 S.W.2d 199, 212-13 (Tex. Crim. App. 1998). "Cumulativeness" alone is not a basis for the exclusion of evidence under Rule 403. The rule speaks to the "needless presentation" of such evidence. In this regard, trial courts should be sensitive to a party's "right" to make its case in the most persuasive manner possible. Etheridge v. State, 903 S.W.2d 1, 20-21 (Tex. Crim. App. 1994); see also generally 1 Steven Goode, et al., Texas Practice: Texas' Rules of Evidence: Civil and Criminal § 403.2 (1993). Cumulative evidence suggests that other evidence on the same point has already been received. But this alone is not a basis for exclusion. The cumulative effect of the evidence may heighten rather than reduce its probative value. Further, evidence that may be cumulative as to one point may not have that characteristic as to another material point. Goode, § 403.2. In this "murder for hire scenario", the State bore the burden of proof beyond a reasonable doubt and the link between appellant and Ramirez was of vital importance. The strongest evidence of a link came from Hoogstra and appellant's jail letter introduced by the State. Appellant impeached and discredited Hoogstra by showing, inter alia, that Hoogstra had received hundreds of dollars from several law enforcement agencies early on in the investigation. Appellant also used statements in his jail letter to support his defense of duress. If it can be argued that appellant's possession of the note written by Ramirez was cumulative evidence of the link between the two, it was not inadmissible on the basis of needless presentation of cumulative basis. Moreover, the State urges that the note was admissible to rebut the defense of duress. We conclude that the trial court did not abuse its discretion in overruling appellant's Rule 403 objection. The third point of error is overruled. The judgment is affirmed. John F. Onion, Jr., Justice Before Justices Kidd, Puryear and Onion* Affirmed Filed: November 29, 2001 Do Not Publish * Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998). 1. The name was also spelled "Karla" in the record. 2. Appellant does cite Hutch v. State, 922 S.W.2d 166, 170-71 (Tex. Crim. App. 1996), for the nature of errors which result in "egregious harm." "Egregious harm" applies to a review of charge error which was not preserved by timely objection. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). Here, appellant timely objected to the court's charge. 3. Tex. R. Evid. 404(b). 4. Appellant's brief states: The note itself was undoubtedly relevant evidence establishing a link between Ramirez and appellant. 5. Rule 401 states: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 6. See Brown v. State, 6 S.W.3d 571, 575 (Tex. App.--Tyler 1999, pet. ref'd); Conner v. State, 891 S.W.2d 668, 671 (Tex. App.--Houston [1st Dist.] 1994, no pet.). 7. Appellant acknowledges that subsequent to the introduction of the note, the trial court refused to admit the testimony of Ginger Herring, Ramirez's girlfriend to the effect that she overheard Ramirez and appellant talking about going to Austin and killing Ramirez's ex-wife, her uncle and possibly her mother. This disallowed evidence was never before the jury.

Slip Op. 13-69 UNITED STATES COURT OF INTERNATIONAL TRADE SINCE HARDWARE (GUANGZHOU) CO., LTD., Plaintiff, Before: Leo M. Gordon, Judge v. Consol. Court No. 11-00106 UNITED STATES, Defendant. OPINION and ORDER [Final results of administrative review sustained in part and remanded in part.] Dated: May 30, 2013 William E. Perry and Emily Lawson, Dorsey & Whitney LLP of Seattle, Washington for Plaintiff Since Hardware (Guangzhou) Co., Ltd. Gregory S. Menegaz, J. Kevin Horgan, and John J. Kenkel, DeKieffer & Horgan of Washington, DC for Plaintiff-Intervenor Foshan Shunde. Carrie A. Dunsmore, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice for Defendant United States. With her on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Thomas M. Beline, Office of the Chief Counsel for Import Administration of Washington, DC. Frederick L. Ikenson, Peggy A. Clarke, and Larry Hampel, Blank Rome LLP of Washington, DC for Defendant-Intervenor Home Products International, Inc. Gordon, Judge: This consolidated action involves the U.S. Department of Commerce’s (“Commerce”) fifth administrative review of the antidumping duty order covering Floor-Standing, Metal-Top Ironing Tables from China. See Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s Republic of China, 76 Fed. Reg. 15,297 (Dep’t of Commerce Mar. 21, 2011) (final results admin. Consol. Court No. 11-00106 Page 2 review), as amended by 76 Fed. Reg. 23,543 (Dep’t of Commerce Apr. 27, 2011) (amended final results admin. review) (collectively, “Final Results”); see also Issues and Decision Memorandum for Ironing Tables from China, A-570-888 (March 22, 2011), available at http://ia.ita.doc.gov/frn/summary/PRC/2011-6558-1.pdf (last visited this date) (“Decision Memorandum”). Before the court are the Final Results of Redetermination, ECF No. 85 ("Remand Results") filed by Commerce pursuant to Since Hardware (Guangzhou) Co. v. United States, Consol. Court No. 11-106, ECF No. 81 (Aug. 14, 2012) (“Since Hardware”) (order remanding to Commerce). The court has jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006),1 and 28 U.S.C. § 1581(c) (2006). Plaintiffs Since Hardware (Guangzhou) Co., Ltd. (“Since Hardware”) and Foshan Shunde Yongjian Housewares & Hardwares Co., Ltd. (“Foshan Shunde”) both challenge Commerce’s financial statement selection; Foshan Shunde challenges Commerce’s brokerage and handling surrogate valuation; and Since Hardware challenges Commerce’s cotton fabric surrogate valuation and labor wage rate surrogate valuation.2 See Since Hardware Comments to Remand Results, ECF No. 90 1 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19 of the U.S. Code, 2006 edition. 2 Since Hardware also attempted to challenge Commerce’s brokerage and handling (“B&H”) valuation, but the court had to deem the issue waived for failure to adequately brief the argument. Since Hardware at 7; see also Home Prods. Int’l, Inc. v. United States, No. 11-00104 (Jan. 3, 2012), ECF No. 62 (order waiving challenge to B&H (footnote continued) Consol. Court No. 11-00106 Page 3 (“SH Remand Br.”); Foshan Shunde Comments to Remand Results, ECF No. 89 (“FS Remand Br.”). The court sustains Commerce’s labor wage rate valuation and cotton fabric valuation, but remands the issues of financial statements, and brokerage and handling to Commerce for further consideration. I. Standard of Review When reviewing Commerce's antidumping determinations under 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c), the U.S. Court of International Trade sustains Commerce's “determinations, findings, or conclusions” unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing agency determinations, findings, or conclusions for substantial evidence, the court assesses whether the agency action is reasonable given the record as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006). Substantial evidence has been described as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Substantial evidence has also been described as "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966). calculation), as amended, ECF No. 63; Home Prods Int’l, Inc. v. United States, 36 CIT ___, ___, 837 F. Supp. 2d 1294, 1300-1302 (2012); opinion after remand, Home Prods. Int’l, Inc. v. United States, 36 CIT ___, 853 F. Supp. 2d 1257 (2012). Consol. Court No. 11-00106 Page 4 Fundamentally, though, "substantial evidence" is best understood as a word formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and Practice § 9.24[1] (3d. ed. 2013). Therefore, when addressing a substantial evidence issue raised by a party, the court analyzes whether the challenged agency action "was reasonable given the circumstances presented by the whole record." Edward D. Re, Bernard J. Babb, and Susan M. Koplin, 8 West's Fed. Forms, National Courts § 13342 (2d ed. 2013). Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984), governs judicial review of Commerce's interpretation of the antidumping statute. See United States v. Eurodif S.A., 555 U.S. 305, 316 (2009) (Commerce's "interpretation governs in the absence of unambiguous statutory language to the contrary or unreasonable resolution of language that is ambiguous."). II. Discussion A. Financial Statement Selection Commerce’s selection of financial statements to calculate the financial ratios for respondents’ margins is an oft-litigated issue in non-market economy antidumping cases. Commerce is guided by a general regulatory preference for publicly available, non-proprietary information. 19 C.F.R. § 351.408(c)(1), (4) (2009). Beyond that, Commerce generally considers the quality, specificity, and contemporaneity of the available financial statements. See Fresh Garlic from the People's Republic of China, Consol. Court No. 11-00106 Page 5 67 Fed. Reg. 72,139 (Dep't of Commerce Dec. 4, 2002) (final results new shipper review). During the administrative review, Commerce had a choice from among four Indian financial statements: ‘06-‘07 Infiniti Modules Private Ltd. (“Infiniti Modules”); ‘08- ‘09 Omax Autos Ltd. (“Omax”); and ‘07-‘08 and ‘08-‘09 Maximaa Systems Ltd. (“Maximaa”). In the Final Results Commerce chose the ‘06-‘07 Infiniti Modules’ financial statements alone as the best available information from which to calculate the financial ratios. Foshan Shunde and Since Hardware challenged this decision, arguing that the statements were not publicly available and that Omax’s and Maximaa’s financial statements represented the best available information to calculate the financial ratios. Since Hardware Mot. for J. upon the Agency R., ECF No. 43 (SH 56.2 Br.”); Foshan Shunde Mot. for J. upon the Agency R., ECF No. 44 (FS 56.2 Br.”). In its initial consideration of the issue, the court agreed that Commerce’s choice may not have been reasonable and remanded for Commerce to “reconsider[] the issue of the public availability of the Infiniti Modules financial statement, . . . [and to] review and reconsider whether the more contemporaneous statements of Omax or Maximaa might be useful additional data points, either in place of, or in addition to, Infiniti Modules.” Since Hardware at 6. On remand Commerce again solely selected the ‘06-‘07 Infiniti Modules’ financial statements and found them to be publicly available. See Remand Results at 7,15. Consol. Court No. 11-00106 Page 6 1. Public Availability When first reviewing the issue of the public availability of the ‘06-‘07 Infiniti Modules’ financial statements, the court could not sustain Commerce’s determination as reasonable. Since Hardware at 6. Although Commerce found that the statements were available through the Indian Ministry of Corporate Affairs’ (“MCA”) website, Decision Memorandum at 10, there was more than a “fair amount of record information demonstrating that the Infiniti Modules financial statements may not have been publicly available[,]” as evidenced by Since Hardware and Foshan Shunde’s unsuccessful attempts to obtain the financial statements or other Infiniti Modules’ financial information. Since Hardware at 4. On remand Commerce acknowledges that it erred in the Final Results when it concluded that the Infiniti Modules’ financial statements were available through the MCA website; they are not. Remand Results at 7. Commerce nevertheless clarifies that it still believes they are publicly available. Id. at 29. In the Remand Results Commerce reasons that the Infiniti Modules’ financial statements are publicly available because they were used in a prior administrative review and available on the public administrative record of that review are publicly available. Id. at 29. Commerce explains that Commerce and all interested parties have significant experience with Infiniti Modules as a surrogate company. Id. at 5-6. In each of the four prior administrative reviews, Commerce calculated financial ratios using a single year of Infiniti Modules’ financial statements. See Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s Republic of China, 72 Fed. Reg. 13,239 Consol. Court No. 11-00106 Page 7 (Dep’t of Commerce Mar. 21, 2007) (final results 1st admin. review) (selected Infiniti Modules’ ‘04-‘05 statement); Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s Republic of China, 73 Fed. Reg. 14,437 (Dep’t of Commerce Mar. 18, 2008) (final results 2nd admin. review) (selected Infiniti Modules’ ‘04-‘05 statement); Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s Republic of China, 74 Fed. Reg. 11,085 (Dep’t of Commerce Mar. 16, 2009) (final results 3rd admin. review) (selected Infiniti Modules’ ‘06-‘07 statement); Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s Republic of China, 75 Fed. Reg. 55,759 (Sept. 14, 2010) (prelim. results 4th admin. review) (selected Infiniti Modules’ ‘05-‘06 statement). In prior administrative reviews both Since Hardware and Foshan Shunde accepted Infiniti Modules’ financial statements as publicly available and argued about the specific substantive application of the financial statements: Specifically, Infiniti Modules’ 2006-2007 financial statements were obtained by Petitioner and placed on the record of the third administrative review along with the 2005-2006 financial statements of Infiniti Modules. [Commerce] used the 2006-2007 financial statements of Infiniti Modules in the calculations set forth in the final results of the third administrative review. More importantly, Since Hardware acknowledged the existence of and was given the opportunity to comment on both Infiniti Modules’ 2005- 2006 and Infiniti Modules’ 2006-2007 financial statements in that review. Specifically, during that review, Since Hardware asserted that regardless of whether [Commerce] selected the 2005-2006 financial statements of Infiniti Modules or the 2006-2007 financial statements of Infiniti Modules, [Commerce] should make certain adjustments to the financial ratios derived from those financial statements. Similarly, Foshan Shunde engaged in argument over certain aspects of using Infiniti’s financial statements in the fourth administrative review, though it did not dispute that the information was publicly available. Consol. Court No. 11-00106 Page 8 Remand Results at 5-6 (citations omitted). Noting that its regulatory preference for publicly available information addresses “the concern that a lack of transparency about the source of the data could lead to proposed data sources that lack integrity or reliability,” Commerce found that nothing had “transpired to undermine the integrity or reliability” of the ‘06-‘07 Infiniti Modules’ financial statements. Id. at 6. This though is not really a determination of “public availability” made against measurable objective criteria. It is instead a determination that the Infiniti Modules’ data remains among the best available information because of its reliability (notwithstanding that it may not be publicly available). The court understands Commerce’s desire to use information with which it is familiar from a surrogate company that it knows well. It makes good, practical, efficient sense. The ‘06-‘07 Infiniti Modules’ financial statements were apparently obtained directly from the company by petitioner, Home Products International, Inc. (“HPI”), in the third administrative review. The public availability of that document was not challenged. Financial statements from Infiniti Modules were also used in the fourth administrative review, and again the public availability of that data was not challenged. In both instances respondents accepted the data and made substantive arguments about its proper use. Commerce and the interested parties have invested significant time and energy over the course of the prior reviews vetting and refining the Infiniti Modules’ financial statements for use in the financial ratio calculations. The court fully understands Commerce’s reluctance to abandon otherwise reliable data on a technicality that it has become publicly unavailable (or perhaps never was when measured against objective criteria). Consol. Court No. 11-00106 Page 9 The court, though, cannot sustain Commerce’s determination that these financial statements are publicly available. In the Remand Results Commerce cites to Catfish Farmers of Am. v. United States, 33 CIT ___, ___, 641 F. Supp. 2d 1362, 1377 (2009), as an example of “the standard for public availability established in our practice.” Remand Results at 29. One searches Catfish Farmers in vain for an explanation of the “standard for public availability established in [Commerce’s] practice.” Remand Results at 29. That explanation does not appear in Catfish Farmers because it did not involve Commerce’s administrative practice for determining public availability. Instead, Catfish Farmers involved a challenge to Commerce’s use of a proprietary auditors’ report to supplement a publicly available financial statement. Catfish Farmers, 33 CIT at ___, 641 F. Supp. 2d at 1377. Unlike here, Commerce did not determine that the proprietary auditors’ report was publicly available. Commerce, instead reasoned that because everyone had fair and open access to it during the proceeding, it was appropriate to supplement an otherwise publicly available financial statement as among the best available information. Id. The court, in turn, sustained as reasonable Commerce’s use of the non-public, confidential, auditors’ report to supplement a publicly available financial statement. Id. Further, Catfish Farmers does not identify or explain Commerce’s standards or criteria for public availability. Instead, it more modestly demonstrates that Commerce’s regulatory preference for public availability is not absolute, offering an instance in which Commerce’s use of proprietary surrogate information was reasonable. Catfish Farmers does not provide support for Commerce’s conclusion that the Infiniti Modules’ financial Consol. Court No. 11-00106 Page 10 statements are publicly available. Catfish Farmers would instead appear to lend support for the conclusion that although the ‘06-‘07 financial statements are no longer publicly available, they may still merit consideration as among the best available information to calculate surrogate financial ratios because all parties had full and fair access to otherwise reliable data. As for the missing public availability criteria necessary to evaluate Commerce’s decision here, Foshan Shunde directs the court to another administrative proceeding, contemporaneous with the Remand Results, where Commerce applied what appears to be fairly rigorous standards for public availability. See Yantai Xinke Steel Structure Co. v. United States, Court No. 10-00240, Final Results of Redetermination Pursuant to Court Remand, ECF No. 83 at 18-23 (“Steel Grating Remand Results”); see also Certain Steel Grating from the People’s Republic of China, 75 Fed. Reg. 32,366 (Dep’t of Commerce June 8, 2010) (final LTFV determ.). In that proceeding Commerce sought clarification by issuing a supplemental questionnaire. . . . In this supplemental questionnaire, the Department requested that Petitioners provide a detailed step-by-step explanation of how they obtained Greatweld’s 2008-09 financial statements, and that the steps provided should be of sufficient detail so that any party would be able to replicate these steps to acquire Greatweld’s 2008-09 financial statements. If such a step-by-step explanation could not be provided, the Department requested that Petitioners provide a detailed explanation of why they could not provide such information. In addition, the Department also asked Petitioners to provide a detailed explanation as to the reason they believed Greatweld’s 2008-09 financial statements were properly described as publicly available and, in providing their response, to indicate if Greatweld was required under Indian law to publicly file its 2008-09 financial statements with any governmental authority. Consol. Court No. 11-00106 Page 11 Steel Grating Remand Results at 19-20. Petitioners there provided the step-by-step process of obtaining the “1) annual return; 2) balance sheet; 3) schedules; 4) auditor’s report; 5) director’s report; and 6) notice,” but did not provide the step-by-step process of receiving the income statements. Commerce determined Greatweld’s financial statements were not publicly available “[b]ecause the other interested parties to the proceeding, as well as the Department itself, do not know the steps necessary to acquire Greatweld’s 2008-09 income statement, and, therefore, could not acquire that data themselves . . . .” Id. at 22. In contrast, Commerce here was satisfied that Infiniti Modules’ statements were publicly available because “Petitioner was able to get them directly from the company simply by requesting them,” Remand Results at 7, even though respondents were apparently unsuccessful with similar requests. Under the standards Commerce enunciated in the Steel Grating Remand Results, respondents’ inability to obtain the data from the same source and in the same manner does seem to establish that Infiniti Modules’ statements are now publicly unavailable. In the Remand Results Commerce casts a skeptical eye on respondents’ efforts to obtain the data from Infiniti Modules, noting that respondents never specifically requested the ‘06-‘07 data. Id. at 6-7. The court was somewhat surprised by this interpretation of the record. Although it may be technically correct, the court was under the impression that the record made clear that respondents had made a good faith effort to obtain general financial information from Infiniti Modules (including more contemporaneous financial statements), but were completely rebuffed, which then instigated their arguments about public availability. Consol. Court No. 11-00106 Page 12 The court will remand the issue of public availability for Commerce to reconcile its approach here with the Steel Grating Remand Results, as well as to reconsider its determination in light of the court’s explanation of Catfish Farmers. Commerce’s determination that Infiniti Modules financial statements are publicly available remains unreasonable (unsupported by substantial evidence), and therefore cannot be sustained. 2. Other Financial Statements In Since Hardware the court also remanded for Commerce to “review and reconsider whether the more contemporaneous statements of Omax or Maximaa might be useful additional points, either in place of, or in addition to, Infinit[i] Modules” and to “explain its choices in this administrative review against the choices made in Folding Metal Tables and Chairs . . . .” Since Hardware at 6. On remand Commerce again selected the ’06-’07 Infiniti Modules’ financial statements. Since Hardware and Foshan Shunde argue that Commerce’s selection was unreasonable and that it should have selected Omax or Maximaa. As previously discussed, Infiniti Modules’ data has certain advantages. It has been used in every review under the order, and Commerce and the parties know it well. The ‘06-‘07 Infiniti Modules’ financial statements, however, are less contemporaneous than the other choices, and have this nagging problem with public availability. The court, for its part, remains unconvinced that Commerce’s sole selection of the ’06-’07 Infiniti Modules’ financial statements alone is a reasonable choice on this administrative record. Consol. Court No. 11-00106 Page 13 a. Maximaa Compared to the ‘06-‘07 Infiniti Modules financial statements, the ‘07-‘08 Maximaa financial statements are more contemporaneous, and the ‘08-‘09 Maximaa financial statements cover the exact period of review. Unlike Infiniti Modules’ financial statements, Maximaa’s public availability is not in dispute. Commerce, nevertheless, continues to reject Maximaa’s financial statements for the following reasons: We . . . dispute Foshan Shunde’s assertion that Maximaa’s financial statements represent the best available information. Foshan Shunde argues that the Department’s selection of Maximaa’s financial statements in Folding Metal Tables and Chairs undercuts the rejection of Maximaa’s 2007-2008 financial statements in the instant proceeding. However, in the proceeding at issue in this remand, the Department declined to use the 2008 and 2009 financial statements of Maximaa based on record evidence that was submitted by interested parties on the record of this case, not the record of the case Foshan cites. The record evidence in this proceeding is separate and distinct from the information that comprised the record in Folding Metal Tables and Chairs and relates to a different product. Necessarily, our comments about the nature of financial statements in that case were made in the context of comparing them to folding metal tables and chairs, not ironing tables. In Folding Metal Tables and Chairs, we based our selection of Maximaa on the fact that, based on the evidence in that proceeding, “a greater proportion of Maximaa’s production appears to consist of comparable merchandise (i.e., metal furniture),” and “because it has a similar production process to that of the respondent.” The record in this case does not support the same conclusions. Rather, Maximaa’s business activities and production processes do not resemble that of respondent in this case and with respect to this product. . . .[T]he Department’s review of the information submitted by Petitioner concerning Maximaa’s financial statements indicated that Maximaa had increasingly become an assembler rather than a manufacturer of the merchandise. Thus, notwithstanding the conclusion reached in Folding Tables and Chairs that Maximaa was an integrated producer of steel furniture, we continue to maintain that facts on the record in this case demonstrate that the use of Maximaa’s financial statements inappropriate in this proceeding. Consol. Court No. 11-00106 Page 14 Remand Results at 12-13 (citations omitted) (emphasis added). Commerce fails to reasonably distinguish its financial statement selection here from its financial statement selection in Folding Metal Tables and Chairs from the People’s Republic of China, 74 Fed. Reg. 68,568 (Dep’t of Commerce Dec. 28, 2009) (final results admin. review) (“Folding Metal Tables and Chairs”); see also Issues and Decision Memorandum for Folding Metal Tables and Chairs from China, A-570-868 (Dec. 18, 2009), available at http://ia.ita.doc.gov/frn/summary/prc/E9-30695-1.pdf (last visited this date) (“FMTC Decision Memorandum”). Folding Metal Tables and Chairs involved merchandise similar to metal ironing boards and a choice among similar financial statements, Maximaa’s ‘07-‘08 and Infiniti Modules’ ‘06-‘07. In that review, Commerce selected the Maximaa financial statement because it found that Maximaa produced a greater proportion of comparable merchandise--metal furniture--than Infiniti Modules, and because Maximaa was an integrated producer while Infiniti was an assembler. FMTC Decision Memorandum at 4-5. Commerce distinguished Folding Metal Tables and Chairs by explaining that, in this review, Maximaa had “increasingly become an assembler.” Remand Results at 13. Commerce rejected Maximaa’s financial statement because of this critical finding. Id. However, Infiniti Modules was “evermore a 100% assembler.” FS Remand Br. at 10. Therefore, the court does not understand the basis for rejecting Maximaa’s financial statements because it was becoming an assembler, while accepting the financial statements of Infiniti Modules, who was an assembler. The simple fact is that both were Consol. Court No. 11-00106 Page 15 assemblers. Commerce’s distinction appears to be one without a difference, and is accordingly unreasonable. Turning to Commerce’s remaining criteria for selecting the best available information, Maximaa remains more contemporaneous, has more comparable metal merchandise, and its public availability is not in dispute. On this administrative record, it is difficult to imagine a reasonable mind concluding that Maximaa’s financial statement is not at least as useful, if not better, than the Infiniti Modules data. Further, Commerce has a "preference . . . to use more than one financial statement where more than one representative financial statement is available.” Remand Results at 14. The court, therefore, remands this issue to Commerce to reconsider its financial statement selection. b. Omax Since Hardware and Foshan Shunde argue that Commerce also unreasonably excluded the ‘08-‘09 Omax financial statements. In selecting financial statements, Commerce is driven by a statutory preference for selecting financial statements from producers of comparable merchandise. 19 U.S.C. § 1677b(c)(4)(B); see also 19 C.F.R. § 351.408(c)(4) (“For manufacturing overhead, general expenses, and profit, the Secretary normally will use non-proprietary information gathered from producers of identical or comparable merchandise in the surrogate country.”). In the final results Commerce declined to use Omax’s financial statements because it determined that Omax was primarily an auto producer and therefore not an appropriate surrogate. Final Results; see Decision Memorandum at 10-11. Respondents challenged Commerce’s Consol. Court No. 11-00106 Page 16 findings and argued that they had supplied evidence of Omax’s production of home furnishings. The court, therefore, directed Commerce to address the evidence of Omax as a manufacturer and supplier of ironing tables. Since Hardware at 6. On remand, Commerce determined that Omax was not a producer of ironing tables: [T]here is no record evidence that suggests Omax sold ironing tables to either Ikea or Polder during either the POR or the period covered by Omax’s 2008-2009 annual report. We thus conclude that while Omax may have been in a position to supply ironing tables to Polder subsequent to the end of the POR, there is insufficient evidence to conclude that Omax was a producer of ironing tables during the POR. Remand Results at 12. This finding is unreasonable on an administrative record in which the Omax ‘08-‘09 financial statements actually contain a picture of an ironing table. Id. at 31. Although Commerce tries to explain the picture away, id. at 31, the court is not persuaded that a company not producing ironing tables would include a picture of an ironing table in its financial statements as a representative product. Additionally, Polder, Inc., a company that imported ironing tables from Omax, stated in a letter that Omax “has supplied global behemoth Ikea with ironing tables and other steel housewares for the last two years.” Since Hardware SV Submission, PD 98, App. 1 at 1-2 (emphasis added).3 Because Polder’s letter was dated, October 15, 2010, the “last two years” references October 2008 through October 2010. Id. This period overlaps this 2008-2009 administrative review. Therefore, Commerce unreasonably concluded that “there is no record evidence that suggests Omax sold ironing tables to either Ikea 3 “PD” refers to a document in the public administrative record. Consol. Court No. 11-00106 Page 17 or Polder during the POR or the period covered by Omax’s 2008-2009 annual report.” Remand Results at 12. This error though is ultimately harmless because Commerce’s overall decision to exclude the Omax financial statements remains reasonable. The administrative record supports Commerce’s determination that Omax is not a suitable surrogate because it is primarily an auto producer: . . . [T]he record in this case establishes that during the period of review (POR), Omax’s principle business comprised automotive products. Ironing tables constituted, at most, a very small portion of Omax’s business during Omax’s 2008-2009 financial reporting period. As a fundamental matter, Omax’s 2008-2009 annual report establishes that during the 2008-2009 fiscal reporting period, Omax was principally a manufacturer of automobile parts. First, we note that Omax’s official name is “Omax Autos Limited.” More importantly, we note that at page 13 of its financial statements, Omax lists 29 of its customers. Of those 29 customers, only one customer (Ikea) seems to be involved in the business that Omax describes as “home furnishings.” The rest of the customers listed by Omax in that section of the report appear to be involved in the automotive business based upon a simple examination of the company names. The importance of the automotive business to Omax is further highlighted in the account from Jatender Mehta, the Managing Director of Omax, which can be found in Omax’s 2008-2009 annual report . . . . In that account, Mr. Mehta discusses Omax’s financial performance during the fiscal year. In discussing the challenges that Omax faced during the 2008-2009 fiscal reporting period, Mr. Mehta cites to a decline from “World Giants like GM, Chrysler and Ford.” Mr. Mahta[sic] also notes a downturn that was experienced by Toyota. While Mr. Mehta indicates elsewhere in this account that Omax intends to expand the company’s “product profile to Home Furnishings, Commercial Vehicles and the Indian Railway,” Mr. Mehta merely indicates that “[I]nvestments for creating manufacturing facilities have been earmarked.” However, Omax’s “foray” into the home furnishings business, is primarily described as a business segment from which Omax expects to derive future, rather than current, business. Mr. Mehta discusses no specific sales volume for “home furnishings” during the POR. Additionally, Mr. Mehta indicates that; Consol. Court No. 11-00106 Page 18 . . . the company has made a foray into the Home Furnishings segment. The strategy has been to tie up with the biggest international brand—Ikea. This would include the desired level of quality, delivery and cost awareness within the Company. The company has started exports of various items under the division. We are putting up a new 10 Acre plant facility at Bawai Haryana. This plant will be operational in the 3rd quarter of FY 09-10. From our review of the customers identified by Omax, in its 2008- 2009 Annual Report, and the account of Omax’s business that is set forth by Mr. Mehta, we continue to conclude that Omax’s primary business during the period captured by its 2008-2009 financial statements was the production of automotive products. *** Because automotive products are less similar to ironing tables than is furniture, we conclude that data from Infiniti Modules represents a higher quality of data within the meaning of section 773(c)(l) of the Act. Id. at 10-12 (emphasis added). Commerce, therefore, determined Omax was primarily an auto producer based on its name, customers, and the statements of its Managing Director. The name of the company, Omax Autos Limited, pretty much says it all. It communicates that the company is primarily involved in the automotive business. Similarly, all but one of Omax’s 29 customers is in the automotive business. Admittedly, that one customer in the home furnishings business is the “global behemoth” Ikea. Since Hardware SV Submission, PD 98 at App. 1. And although that does count for something, a reasonable mind could conclude on this administrative record that Omax concentrates the bulk of its operations on the automotive sector and is therefore not a suitable surrogate for the general financial ratio calculations of a metal ironing board Consol. Court No. 11-00106 Page 19 manufacturer. Accordingly, the court must sustain Commerce’s decision to exclude the Omax financial statements. B. Brokerage and Handling In the final results Commerce determined the World Bank’s Doing Business 2010: India is “the best available source for valuing Foshan Shunde's brokerage and handling expenses.” Final Results; see Decision Memorandum at cmt. 3. Commerce used the World Bank data to calculate Foshan Shunde and Since Hardware’s brokerage and handling (“B&H”) expenses based on their respective container sizes. Id. Foshan Shunde challenged Commerce’s reliance on the World Bank data and the specific B&H calculations. Commerce requested a voluntary remand to correct Foshan Shunde’s container weight and to address Foshan Shunde’s requested letter of credit deduction. The court granted Commerce’s voluntary request for remand and further remanded the issue for Commerce to (1) prepare a clear and complete public summary of its calculations of Foshan Shunde’s B&H expense; (2) explain why its chosen surrogate data source and calculation is reasonably the best choice by comparing the advantages and disadvantages of each; and (3) respond to Foshan Shunde’s arguments with respect to Commerce adjusting Foshan Shunde’s actual shipped weight and actual shipping mode. Since Hardware at 8-9. On remand Commerce affirmed its selection of the World Bank data and its B&H calculation. Remand Results at 15-22, Attach. 1. Commerce also detailed the mechanics of its calculation for public summary: Consol. Court No. 11-00106 Page 20 This details [Commerce’s] calculation of brokerage and handling expense. In Doing Business India, total brokerage and handling expenses are listed as follows: [See Doing Business in India - Doing Business - The World Bank Group (Doing Business India—2010) at 37 and 84; see also HPI November 15, 2010 Case Brief at 17-18.] 1) Document Preparation: $350 2) Customs Clearance and technical control $120 3) Ports and Terminal Handling $175 Total charges $645 Moreover, as noted in the Doing Business India—2010 study, the container size assumed in the study is for a 20 foot full container load. However, both Since Hardware and Foshan Shunde shipped in 40 foot containers. Therefore, using the formulae set forth, we estimated the shipment weight that would be incurred in a 20 foot container as follows: [This calculation is also explained at HPI November 15, 2010 Case Brief at 17-18.] D= (A*B)/C E= $645/D A represents the cubic capacity of a 20 foot container which is 33 cubic meters B represents the weight of product shipped in 40 foot containers which is { } kg of product C represents the cubic capacity of a 40 foot container (the size in which both respondents shipped merchandise) which is 67.3. D represents the estimated weight of product shipped in 20 foot containers E represents the calculated, per kilogram amount for brokerage and handling. In this case D yields an estimated weight of { } kilograms for product shipped in a 20 foot container D= 33*{ }/67.3= { }. Consol. Court No. 11-00106 Page 21 Therefore, to derive the { } per unit brokerage and handling amount utilized in the Final Results, we divided the total brokerage and handling amount of $645 by the { } estimated weight of product shipped in 20 foot containers. E=$645/{ }={ } Public Summary of Calculation This calculation can also be illustrated publicly through the use of hypothetical numbers. In this hypothetical example, we continue to allocate the total pool of brokerage and handling expenses ($645) from the Doing Business India—2010 study. We assume that this respondent shipped in a 40 foot container. We, thus adjust the calculated shipment weight for this hypothetical respondent to adjust for shipments in a 20 foot container instead of in a 40 foot container. We also continue to assume the same cubic capacity for both the 20 foot and 40 foot containers that we utilized in the Final Results of this review. In our hypothetical example, we assume that the respondent shipped 5000 kg of product in a 40 foot container. In such an instance A (the cubic capacity of a 20 foot container) would continue to equal 33 cubic meters. B (the weight of product shipped in 40 foot container) would equal 5000 kilograms. C (the cubic capacity of a 40 foot container) would continue to equal 67.3 cubic meters. D represents the estimated weight of product shipped in 20 foot container which would be D= 33*5000/67.3= 2,451.71 E represents the calculated, per kilogram amount for brokerage and handling which would equal $0.2631 or E= $645/2451.71=.2631 Remand Results at Attach. 1. Commerce further explained: Consol. Court No. 11-00106 Page 22 [W]e have determined that brokerage and handling expenses were properly calculated in the Final Results for the following reasons. The Department’s practice when selecting the best available information for valuing FOPs, in accordance with section 773(c)(1) of the Act, is to select surrogate values which are product-specific, representative of a broad- market average, publicly available, contemporaneous with the POR, and free of taxes and duties. The Doing Business 2010: India data from the World Bank reflect the experience of a broad number of companies, are publicly available, specific to the costs in question, represent a broad market average, and are contemporaneous to the POR. *** [T]he Department has utilized such World Bank data in a number of cases including Wooden Bedroom Furniture from the People’s Republic of China, Stainless Steel Sinks from China, and Wooden Bedroom Furniture from the People‘s Republic of China, consistently finding the World Bank data to be a reliable and accurate source of surrogate value information. World Bank data represent a reputable source of information for valuing brokerage and handling because those data are prepared by an independent organization and are based upon a survey derived from a broad number of producers. In contrast, the import data offered by Foshan Shunde were limited to two freight forwarders (Samsora[sic] and Hapang[sic] Lloyd). While Foshan Shunde has argued that the import data of Samsora and Hapang[sic] Lloyd also relate somehow to exports, the facts on the record of this proceeding do not substantiate the quantification of any such export experience. As previously noted, the business of exporting is fundamentally different than the business of importing and the data from these activities cannot be considered interchangeable. Further, the data provided by Foshan Shunde to link brokerage and handling expenses to Foshan Shunde’s specific business situation fail to substantiate its claims with regard to the expenses associated with the preparation of letters of credit. As Petitioner has demonstrated, the World Bank data upon which the Department relied constituted $350 and are comprised of eight items: 1) bill of lading, 2) certificate of origin, 3) commercial invoice, 4) custom’s export declaration, 5) inspection report, 6) packing list, 7) technical standard/health certificate, and 8) terminal handling receipts. Nowhere in this schedule of eight items are letter of credit expenses mentioned. More to the point, . . .Foshan Shunde has claimed a constructed letter of credit cost of $390 which exceeds the total amount of brokerage and handling expenses calculated by the World Bank. Applying the $390 letter of credit expense, to the $350 of charges set forth in the Doing Business report would thus result Consol. Court No. 11-00106 Page 23 in the nonsensical calculation of a negative expense amount for Foshan Shunde’s brokerage and handling expenses. . . . . Foshan Shunde’s fails to substantiate its assertions that as a “rational producer” it would never incur expenses as high as those enumerated in the Doing Business report or that distance from seaport is a determining factor in brokerage and handling expenses. As Petitioner has noted, because “inland transportation and handling” are calculated elsewhere in NV calculations, distance from a seaport is an irrelevant factor for purposes of calculating brokerage and handling expenses. These expenses are by definition incurred at the port of export. *** . . . While Foshan Shunde asserts that exporters close to a seaport incur lower brokerage and handling costs than do inland manufacturers, there is no evidence on the record that permits the Department to quantify that suggested difference. Similarly, there is no information on the record of this proceeding that would permit the Department to tailor any publicly-available surrogate value data to the specific business situation experienced by Foshan Shunde or to remove elements of brokerage and handling expense which Foshan Shunde claims not to have incurred. . . . Foshan Shunde’s claim that it does not incur letter of credit expenses invites an inquiry that is beyond the scope of the issue here. The relevant question is whether the World Bank data are a reliable source for general brokerage and handling expenses, not whether the World Bank report reflects Foshan Shunde’s line-by-line experience. . . . Without knowing the exact breakdown of the data included in the World Bank report, the Department can no more deduct a letter of credit expense than add extra expenses which Foshan Shunde incurred but are not reflected by the World Bank data. In other words, the averaged data in the World Bank report is a reasonable surrogate value because a line-by-line analysis is simply not possible. . . . . Foshan Shunde has also challenged the Department’s adjustment from the 40 foot container size in which it shipped to the 20 foot container sizes that are reflected in the Doing Business 2010: India data. This issue was also reviewed by the Court in Dongguan Sunrise. . . . In sustaining the Department’s conversion from a 40 foot to a 20 foot container size, the Court rejected Fairmont’s argument indicating: This argument fails because Fairmont has not presented evidence that brokerage costs are based on value, not Consol. Court No. 11-00106 Page 24 volume, and do not increase proportionately with the number of cubic feet. The methodology employed in this review is consistent with that employed in Dongguan Sunrise. Foshan Shunde has failed to demonstrate which, if any, of the costs included within the Doing Business 2010: India data do not increase proportionately with volume. Accordingly, . . . we continue to maintain that our adjustment for container size is supported by record evidence in this proceeding. Remand Results at 17-21, 38-40 (citations omitted) (emphasis added). Foshan Shunde first argues that Commerce’s B&H calculations are unreasonable because Commerce should not have relied on the World Bank data but should have instead used the data from Indian freight forwarders: Samsara and Hapag- Lloyd. FS Remand Br. at 11-20. Foshan Shunde challenges the World Bank data as not reflecting the experience of any Indian producers at all, but being based on a survey completed by “[l]ocal freight forwarders, shipping lines, customs brokers, port officials, and banks.” Id. at 13 (citing Foshan Shunde SV Submission for Final Results, PD 96 at Ex. 6). Foshan Shunde adds that Commerce is generally reluctant to use the results of a survey as source documentation when “none of the actual responses or data collected from these questionnaires were provided in the report” and that therefore, Commerce “had no way to evaluate whether the information collected in the questionnaire responses was complete or properly analyzed, much less whether the responses can be considered representative . . . .” Id. at 13 (quoting Fresh Garlic from China, 77 Fed. Reg. 34,346 (Dep’t of Commerce June 11, 2012) (final results admin. review)). The court disagrees. Consol. Court No. 11-00106 Page 25 Commerce explained that its practice when selecting the best available information for valuing factors of production, in accordance with 19 U.S.C. § 1677b(c)(1), is to “select surrogate values which are product-specific, representative of a broad-market average, publicly available, contemporaneous . . . and free of taxes and duties.” Remand Results at 17-18 (citing Certain Polyester Staple Fiber from the People’s Republic of China, 75 Fed. Reg. 1336 (Dep’t of Commerce Jan. 11, 2010) (final results admin. review). Accordingly, Commerce calculated Foshan Shunde’s B&H costs using the World Bank’s Doing Business 2010: India which “reflect[s] the experience of a broad number of companies, [is] publicly available, specific to the costs in question, represent a broad market average, and are contemporaneous.” Remand Results at 17-18. In contrast, Foshan Shunde's data are limited to two sources, Samsara and Hapag-Lloyd. Commerce explained that while the World Bank data largely satisfy Commerce's surrogate value criteria, Foshan Shunde's two sources are deficient in several respects. See id. at 18-19. First, they fail to represent a broad market average because they are from only two companies. Id. at 18. Second, the experience of two freight forwarders is not specific to the expenses in question because the expenses reported in these data sources represent import expenses—not export expenses. Id. at 19 ("[T]here is no documentation on the record of this proceeding to suggest that the costs for importing merchandise parallel the costs that are related to exporting merchandise."). Commerce further explained that “the business of exporting is fundamentally different than the business of importing and the data from these activities cannot be considered interchangeable.” Id. at 39. In response, Foshan Consol. Court No. 11-00106 Page 26 Shunde contends that Commerce’s finding “is simply incorrect” and that it submitted “prices for all port activities – for both importers and exporters.” FS Remand Br. at 16. However, the Samsara and Hapag-Lloyd data that Foshan Shunde submitted are both labeled as import data. See Foshan Shunde SV Submission for Prelim. Results, PD 77 at Ex. 2. Further, when arguing that it submitted export data, Foshan Shunde cites to its submission of the Indian port schedules, Foshan Shunde SV Submission for Prelim. Results, PD 77 Ex. 1, and not the Samsara and Hapag-Lloyd data, Foshan Shunde SV Submission for Prelim. Results, PD 77 Ex. 2. Therefore, Commerce reasonably concluded that the Samsara and Hapag-Lloyd data reflect only import data. See Foshan Shunde SV Submission for Prelim. Results, PD 77 at Ex. 2. Additionally, although Foshan Shunde claims that consistent with Commerce practice, Commerce “must reject the World Bank Doing Business Report as unrepresentative, unreliable, and unverifiable,” FS Remand Br. at 13, Commerce reasonably found the World Bank data to be a “reliable and accurate source.” Remand Results at 38. Commerce explained that the “World Bank data represent a reputable source of information for valuing brokerage and handling because those data are prepared by an independent organization and are based upon a survey derived from a broad number of producers.” Id. at 38-39. Commerce has also previously relied on the World Bank data to calculate surrogate B&H values. See e.g., Wooden Bedroom Furniture from the People’s Republic of China, 76 Fed. Reg. 9,747 (Dep’t of Commerce Feb. 22, 2011) (new shipper review final results); Drawn Stainless Steel Sinks from the People’s Republic of China, 78 Fed. Reg. 13,019 (Dep’t of Commerce Feb. 26, 2013) Consol. Court No. 11-00106 Page 27 (final results admin. review); Wooden Bedroom Furniture from the People’s Republic of China, 75 Fed. Reg. 50,992 (Dep’t of Commerce Aug. 18, 2010) (final results admin. review); see also Dongguan Sunrise Furniture Co. v. United States, 36 CIT ___, ___, 865 F. Supp. 2d 1216, 1246 (2012) (affirming Commerce’s reliance on the World Bank data and noting that “Commerce has consistently found the World Bank to be a reliable source for data”). Therefore, Commerce reasonably relied on the World Bank data. Foshan Shunde next argues that Commerce should have altered the World Bank data to reflect Foshan Shunde’s actual expenses. FS Remand Br. at 12. First, Foshan Shunde argues that Commerce should remove a specific expense from the aggregate data, specifically, the expense for preparing a letter of credit. Id. at 17. Foshan Shunde contends that because it did not incur a letter of credit expense, Commerce should adjust the B&H by deducting amounts for letter of credit expenses. Id. at 17. Foshan Shunde explains that “the World Bank data includes costs for procuring an export letter of credit,” id. at 17, and that “the L/C costs are embedded in the “documents required to export and import” and greatly inflate the document preparation costs.” FS 56.2 Br. at Ex. 1, 31. Foshan Shunde lists the price of an export letter of credit as $390. FS Remand Br. at 17 (citing FS’ Br. 56.2 at 26). Commerce, however, responds that it will not adjust the B&H because the listed items composing the B&H do not include a letter of credit expense. Remand Results at 39 (“Nowhere in this schedule of eight items are letter of credit expenses mentioned.”). Moreover, Defendant argues that Foshan Shunde’s $390 letter of credit cost “exceeds [$350,] the total amount of [the document preparation costs of the] brokerage and handling expenses calculated by the World Consol. Court No. 11-00106 Page 28 Bank. Applying the $390 letter of credit expense, to the $350 . . . charges . . . would result in the nonsensical calculation of a negative expense.” Id. at 39 (citations omitted) (original emphasis). The B&H costs from the Word Bank data are composed of three categories of expenses: (1) document preparation; (2) customs clearance and technical control; and (3) ports and terminal handling. Id. at Attach. 1. The document preparation fee is composed of eight items: (1) bill of lading; (2) certificate of origin; (3) commercial invoice; (4) custom's export declaration; (5) inspection report; (6) packing list; (7) technical standard/health certificate; and (8) terminal handling receipts. Id. at 39. Letters of credit are not included in the eight listed expenses for document preparation. Even if the letter of credit expenses are embedded, as Foshan Shunde argues, the court agrees that, "without knowing the exact breakdown of the data included in the World Bank Report, [Commerce] can no more deduct a letter of credit expense than add extra expenses which Foshan Shunde incurred but are not reflected by the World Bank data." Id. at 19-20. Therefore, Commerce's refusal to adjust the B&H costs for possible letter of credit expenses was reasonable. Next, Foshan Shunde argues that Commerce should have adjusted its B&H calculations to reflect Foshan Shunde’s proximity to China’s seaports. Foshan Shunde argues that “proximity to a major seaport is a key factor in the World Bank’s determination of the cost of trading across borders in India” and that companies near ports bear lower B&H expenses. FS 56.2 Br. at Ex. 1, 28; FS Remand Br. at 16. Commerce responds that “because ‘inland transportation and handling’ are calculated Consol. Court No. 11-00106 Page 29 elsewhere in NV calculations, distance from a seaport is an irrelevant factor for purposes of calculating brokerage and handling expenses. These expenses are by definition incurred at the port of export." Remand Results at 40. Commerce further adds that “[w]hile Foshan Shunde asserts that exporters close to a seaport incur lower brokerage and handling costs than do inland manufacturers, there is no evidence on the record that permits [Commerce] to quantify that suggested difference.” Id. at 19. The court does not believe this conclusion is reasonable on this administrative record. Foshan Shunde placed on the administrative record the World Bank’s Doing Business Subnational Report that includes the specific B&H costs for Indian seaports: Chennai, Kochi, Kolkata, and Mumbai. Foshan Shunde SV Submission for Final Results, PD 96 at Ex. 4. The data that Commerce relied on, the World Bank’s Doing Business in India: 2010, is composed of the B&H costs of 17 Indian cities/regions including the four above mentioned port cities. Id. at Ex. 3-4. Four of the 17 cities are seaports, and the remaining 13 are inland. Id. at Ex. 4. The Doing Business Subnational Report contains the following categories of expenses for each seaport: (1) document preparation; (2) customs clearance and technical control; (3) ports and terminal handling; and (4) inland transportation and handling. Id. Commerce explained that it did not include inland transportation and handling in its B&H calculations. Remand Results at 40. Commerce instead calculated B&H from the other three categories of costs: (1) document preparation; (2) customs clearance and technical control; and (3) ports and terminal handling. Id. at Attach. 1. Therefore, in arguing the proper B&H calculation for each seaport, Foshan Shunde also omitted inland Consol. Court No. 11-00106 Page 30 transportation and handling costs from the Business Subnational Report data. FS 56.2 Br. at 28. The Business Subnational Report, excluding inland transportation and handling fees, provides the following B&H costs for the four seaports: Chennai: $439; Kochi: $375; Kolkata: $462; and Mumbai $645. Foshan Shunde SV Submission for Final Results, PD 96 at Ex. 4.; see also id. The average B&H costs for the four seaports are $480. In contrast, based on the aggregate data of all 17 cities, Commerce calculated $645 in B&H costs. Remand Results at Attach. 1. Therefore, even excluding inland transportation costs, there is a $165 difference between the combined data for all 17 Indian cities and the data from the seaports. This evidence directly contradicts Commerce’s conclusion that “distance from a seaport is an irrelevant factor” and that there is no evidence to “quantify that suggested difference.” Id. at 19, 40. Further, the court agrees with Foshan Shunde that Commerce “offered no explanation why the World Bank report including export costs from 17 Indian cities, most of which lie far inland, was a more appropriate data set than the regional reports of four Indian cities geographically located near major ports, when Foshan Shunde itself is located near major Chinese ports.” FS 56.2 Br. at 26. Commerce’s determination appears unreasonable. The court must therefore remand this issue to Commerce to consider the World Bank data from the seaports or to provide a reasonable explanation as to why that is not appropriate. Finally, Foshan Shunde argues that Commerce’s adjustment of the World Bank data from 20-foot to 40-foot containers is unreasonable because B&H costs do not increase proportionally from 20-foot to 40-foot containers. FS Remand Br. at 19-20. Consol. Court No. 11-00106 Page 31 Foshan Shunde contends that the per-kilogram B&H costs of a 40-foot container is lower than that of a 20-foot container. Id. Commerce calculated the B&H costs by first determining the per-kilogram B&H costs of a 20-foot container, and then applied that value to the weight of a 40-foot container. This type of calculation assumes that B&H costs increase proportionally from 20-foot to 40-foot containers. From this calculation, Commerce determined B&H costs to be $645. Remand Results at Attach. 1. Defendant and HPI respond to Foshan Shunde’s argument, explaining that Commerce “merely converted the data, such that the World Bank data would reflect the ways in which Foshan Shunde actually ships its goods” and that, “Commerce made a straightforward mathematical adjustment from the 40-foot container size in which it shipped to the 20-foot container size that are reflected in the World Bank data.” Defendant’s Resp. to Plaintiffs’ Comm. Concerning Remand Results, ECF No. 100 at 19-20 (“Def. Remand Br.”); see also Reply of HPI to Comm. Concerning Remand Results, ECF No. 101 at 19 (“HPI Remand Br.”). Defendant also argues that this same issue was addressed in Dongguan Sunrise v. United States, 36 CIT ___, ___, 865 F. Supp. 2d 1216, 1247 (2012), in which the court held Commerce’s conversion from a 20- foot to a 40-foot container reasonable. Def. Remand Br. at 20. HPI also relies on Utility Scale Wind Towers from the People's Republic of China, 77 Fed. Reg. 75,992 (Dep’t of Commerce Dec. 26, 2012) (final determ.), in arguing that total B&H costs increase proportionally with container capacity. HPI Remand Br. at 19. On remand, Commerce explained that “Foshan Shunde has failed to demonstrate which, if any, of the costs included within the Doing Business 2010: India data do not increase proportionately with Consol. Court No. 11-00106 Page 32 [container size].” Remand Results at 21. Defendant and HPI, therefore, argue that Commerce’s conversion of the data was reasonable (supported by substantial evidence). In Dongguan Sunrise the court sustained Commerce’s adjustment of the World Bank data from a 20-foot to a 40-foot container “because [Respondent] ha[d] not presented evidence that brokerage costs are based on value, not volume, and do not increase proportionally with the number of cubic feet.” Dongguan Sunrise, 36 CIT at ___, 865 F. Supp. 2d at 1247. Similarly, in Utility Scale Wind Towers from the People's Republic of China, Commerce stated, “absent record evidence to the contrary, total brokerage and handling costs increase proportionally with a container’s capacity and, therefore, per-unit brokerage and handling rates do not change as a container’s capacity increases.” Utility Scale Wind Towers from the People's Republic of China, 77 Fed. Reg. 75,992, 75,997 (Dep’t of Commerce Dec. 26, 2012) (final determ.) (emphasis added). If B&H costs increased proportionally from 20-foot to 40-foot containers, as Commerce calculated, then there would be a 100% increase in B&H costs from a 20- foot to a 40-foot container. Foshan Shunde, however, points to evidence in the record that shows only a 30-50% increase in costs from 20-foot to 40-foot containers. Foshan Shunde SV Submission for Prelim., PD 77, Ex. 1 at 3-6, 14-16, 37, 64-65, Ex. 2; see also FS 56.2 Br. at 33. Therefore, Foshan Shunde has demonstrated that B&H costs do not increase proportionally from 20-foot to 40-foot containers. Accordingly, Commerce unreasonably concluded that, “Foshan Shunde has failed to demonstrate, which if any, of the costs . . . do not increase proportionately with volume.” Remand Consol. Court No. 11-00106 Page 33 Results at 21. The court remands this issue to Commerce to consider Foshan Shunde’s evidence regarding B&H costs in 20-foot versus 40-foot containers. C. Cotton Fabric Surrogate Valuation In Since Hardware the court granted Commerce’s voluntary remand request to reconsider Since Hardware’s cotton fabric weight and recalculate the conversion factor. Since Hardware at 2. On remand, Commerce changed the conversion factor from 5.0 to 7.5 and explained: Since Hardware has demonstrated that the weight of its cotton fabric was between 100 grams and 200 grams per square meter. The precise conversion factor for Since Hardware’s cotton inputs would therefore range between 5 and 10. Therefore, based upon the information on record, the Department has based its determination on a reasonable inference that the conversion factor is 7.5. Remand Redetermination at 23. In challenging the cotton fabric conversion factor, Since Hardware presents a hollow argument. Since Hardware’s entire argument consists of the following: “[t]his Court should find that Commerce should use the record information verified for Since Hardware and apply the 5.49 conversion factor instead of the 7.5 as it is more specific to Since Hardware Draft Remand Comments at 2-6[sic].” SH Br. at 20. Missing is any effort to develop an argument as to how the 5.49 conversion factor is “more specific to Since Hardware” and to identify standards against which the court can evaluate the reasonableness of Commerce’s cotton fabric valuation. Id. Since Hardware’s “argument” is all the more difficult to countenance because the Scheduling Order specifically cautioned against just such a submission: Please be advised that the court will not permit the plaintiff to shift to the court and the other parties the burden of establishing the ossature of plaintiff’s arguments against the standard of review the court applies to Consol. Court No. 11-00106 Page 34 resolve them. Instead, the court will summarily sustain Commerce’s action. Scheduling Order at 5, ECF No. 36. Rule 56.2(c)(2) requires that briefs "must include the authorities relied on and the conclusions of law deemed warranted by the authorities." USCIT R. 56.2(c)(2). As Since Hardware has failed to satisfy this basic requirement, and abide by the express instructions of the Scheduling Order, the court deems this issue waived and sustains Commerce's cotton fabric surrogate valuation. See MTZ Polyfilms, Ltd. v. United States, 33 CIT ___, ___, 659 F. Supp. 2d 1303, 1308- 09 (2009); Fujian Lianfu Forestry Co. v. United States, 33 CIT ___, ___, 638 F. Supp. 2d 1325, 1350 (2009); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.") (citations omitted). D. Labor Wage Rate Surrogate Valuation In the final results Commerce calculated the surrogate labor wage rate using data from the International Standard Classification of all Economic Activities (“ISIC”) Revision 3 rather than ISIC Revision 2. Final Results; see Decision Memorandum at 16. The court in Since Hardware remanded the issue to have Commerce conform its results with the prior review, Home Prods., 36 CIT ___, ___, 837 F. Supp. 2d 1294, 1296-97, and to include Indian data under ISIC Revision 2, as well as any other appropriate country in that data set. Since Hardware at 9-11. The court rejected Since Consol. Court No. 11-00106 Page 35 Hardware and Foshan Shunde’s argument that Commerce must use data from India because “the statute does not mandate Commerce must, as a matter of law, use Indian data alone.” Since Hardware at 10. The court also deemed waived any argument by Since Hardware and Foshan Shunde that, as a factual matter, India alone was both economically comparable to China and a significant producer of comparable merchandise, because neither party identified even one country included in Commerce’s analysis that failed either standard, leaving that work to the court or the other interested parties. Id. Consequently, the court did not “require Defendant or HPI to expend any more energy on this issue” other than for Commerce to conform its decision to its Remand Redetermination from the prior administrative review. Id. at 11. On remand Commerce followed the court’s instructions and recalculated the labor wage rate “rely[ing] on labor data reported by countries either under the International Standard Industrial Classification (ISIC) Revision 3, or, as discussed below, ISIC Revision 2,” including “data from India and Nicaragua.” Remand Results at 22-22. Since Hardware again argues that Commerce should have selected India alone to calculate the surrogate wage rate. SH Br. at 19-20. The court previously rejected this argument in Since Hardware, and Commerce’s labor wage rate surrogate valuation is therefore sustained. See Since Hardware at 10-11; see also Home Prods. Int’l, Inc. v. United States, 36 CIT ___, ___, 810 F. Supp. 2d 1373, 1380 (2012); opinion after remand, Home Prods. Int’l, Inc. v. United States, 36 CIT ___, ___, 837 F. Supp. 2d 1294, 1297 (2012); opinion after remand, Home Prods. Int’l, Inc. v. United States, 36 Consol. Court No. 11-00106 Page 36 CIT ___, 853 F. Supp. 2d 1257 (2012), aff’d, Home Prods. Int’l, Inc. v. United States, 501 Fed. Appx. 981 (Fed. Cir. Apr. 11, 2013). III. Conclusion Accordingly, it is hereby ORDERED that Commerce’s financial statement selection is remanded to reconsider the exclusion of the Maximaa financial statements; it is further ORDERED that Commerce’s brokerage and handling calculations are remanded for Commerce to reconsider its treatment of container sizes and proximity to seaports; it is further ORDERED that Commerce’s labor wage rate surrogate valuation is sustained; it is further ORDERED that Commerce’s cotton fabric surrogate valuation is sustained; it is further ORDERED that Commerce shall file its remand results on or before July 30, 2013; and it is further ORDERED that, if applicable, the parties shall file a proposed scheduling order with page limits for comments on the remand results no later than seven days after Commerce files its remand results with the court. /s/ Leo M. Gordon Judge Leo M. Gordon Dated: May 30, 2013 New York, New York 

08-1525-ag Lin v. Holder UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 15th day of April, two thousand eleven. PRESENT: DENNIS JACOBS, Chief Judge, JON O. NEWMAN, PIERRE N. LEVAL, Circuit Judges. ____________________________________ YAN YUN LIN v. HOLDER, 1 08-1525-ag A095 461 815 ____________________________________ JUN QIN KE v. HOLDER, 08-4139-ag A073 661 093 ____________________________________ XING QIANG YANG, A.K.A. XING 08-5000-ag YONG YANG v. HOLDER, A076 969 048 ____________________________________ Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 1 Attorney General Eric. H. Holder, Jr., is automatically substituted where necessary. 12132010-1-34 ____________________________________ XIU QIN LIN, A.K.A. XIU QING 08-6266-ag LIN v. HOLDER, A077 322 260 ____________________________________ DAO-SHU LIN v. HOLDER, 09-0167-ag A072 485 388 ____________________________________ XIU ZHU v. HOLDER, 09-0550-ag A077 660 225 ____________________________________ RUIYU WANG v. HOLDER, 09-1016-ag A096 263 970 ____________________________________ GUO YING QIU v. HOLDER, 09-1035-ag A076 027 787 ____________________________________ JINXIU ZHENG v. HOLDER, 09-1877-ag A097 478 685 ____________________________________ MING TENG ZHANG v. HOLDER, 09-2827-ag A072 373 970 ____________________________________ MING YING ZHENG, KOK POH LIN 09-2853-ag v. HOLDER, A073 045 702 A029 882 583 ____________________________________ DE YONG CHEN v. HOLDER, 09-2855-ag A073 570 843 ____________________________________ 12132010-1-34 -2- ____________________________________ XIU YING WEI v. HOLDER, 09-2967-ag A077 283 089 ____________________________________ ZHEN GUANG JIANG v. HOLDER, 09-3083-ag A073 611 310 ____________________________________ LIN JIQING v. BCIS, 09-3206-ag A029 790 914 ____________________________________ YAN YING LI, A.K.A. YAN 09-3858-ag JUAN LI v. BCIS, A079 097 331 ____________________________________ JIANG DENG, A.K.A. XIAO 09-3891-ag DONG JIANG v. HOLDER, A072 484 162 ____________________________________ XIN YING ZHENG, A.K.A. 09-4219-ag XINYING ZHENG v. HOLDER, A079 407 995 ____________________________________ CHUN-HUI HUANG, A.K.A. 09-4220-ag CHUNHUI HUANG v. HOLDER, A070 579 857 ____________________________________ SHUAI ZHENG v. HOLDER 09-4374-ag A070 311 881 ____________________________________ XUE FENG HUANG v. BCIS, 09-4613-ag A073 552 797 ____________________________________ 12132010-1-34 -3- ____________________________________ TIANGONG ZHENG, A.K.A. TIAN 09-4644-ag GONG ZHENG v. HOLDER, A078 731 678 ____________________________________ LI QING GUO v. HOLDER, 09-4648-ag A077 550 863 ____________________________________ YI JIAN WANG v. HOLDER, 09-4649-ag A073 583 147 ____________________________________ BO KUN ZHU v. HOLDER, 09-4711-ag A073 134 414 ____________________________________ XIU ZHEN LIN v. HOLDER, 09-4712-ag A099 082 786 ____________________________________ MEI RONG CHEN v. HOLDER, 09-4791-ag A077 007 626 ____________________________________ JING LI v. HOLDER, 09-4821-ag A073 625 185 ____________________________________ YAN CHEN v. HOLDER, 09-4837-ag A073 620 487 ____________________________________ XIAO LI LIU v. HOLDER, 09-4905-ag A077 297 907 ____________________________________ ZHANG BING CHEN v. HOLDER, 09-4936-ag A078 400 265 ____________________________________ 12132010-1-34 -4- ____________________________________ SUZHU ZHAO, A.K.A. SU ZHU 09-5113-ag ZHAO v. HOLDER A095 369 241 ____________________________________ TAN LAN CHI, A.K.A. DAN LING 09-5262-ag SHI v. HOLDER, A073 598 096 ____________________________________ SHI YANG HUANG v. HOLDER, 10-0277-ag A077 281 562 ____________________________________ UPON DUE CONSIDERATION of these petitions for review of several Board of Immigration Appeals (“BIA”) decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for review are DENIED. Each of these petitions challenges a decision of the BIA affirming an immigration judge’s (“IJ”) decision denying a motion to reopen or denying a motion to reopen in the first instance based on either the movant’s failure to demonstrate changed country conditions sufficient to avoid the applicable time and numerical limits or the movant’s failure to demonstrate prima facie eligibility for the underlying relief sought. See 8 C.F.R. §§ 1003.2(c), 1003.23(b). The applicable standards of review are well-established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). 12132010-1-34 -5-  Petitioners, all natives and citizens of China, filed motions to reopen based on their claim that they fear persecution because they have one or more children in violation of China’s coercive population control program. For largely the same reasons as this Court set forth in Jian Hui Shao, 546 F.3d at 158-73, we find no error in the BIA’s decisions. While the petitioners in Jian Hui Shao were from Fujian Province, as are most of the petitioners here, five of the petitioners2 are from Zhejiang Province. As with the evidence discussed in Jian Hui Shao, which concerned Fujian Province, the evidence proffered by these petitioners concerning Zhejiang Province either does not discuss forced sterilizations or involves isolated incidents of persecution of individuals who are not similarly situated to the petitioners. See Jian Hui Shao, 546 F.3d at 160-61, 170-71. Some of the petitioners3 argue that the agency applied an incorrect burden of proof by requiring them to establish more 2 The petitioners in Xiu Ying Wei v. Holder, No. 09-2967-ag; Jiang Deng v. Holder, No. 09-3891-ag; Xue Feng Huang v. BCIS, No. 09-4613-ag; Jing Li v. Holder, No. 09-4821-ag; and Suzhu Zhao v. Holder, No. 09-5113-ag. 3 The petitioners in Xing Qiang Yang v. Holder, No. 08-5000-ag; Xin Ying Zheng v. Holder, No. 09-4219-ag; Chun-Hui Huang v. Holder, No. 09-4220-ag; Xiao Li Liu v. Holder, No. 09-4905-ag; and Zhang Bing Chen v. Holder, No. 09-4936-ag. 12132010-1-34 -6- than their prima facie eligibility for relief. However, in those cases, the agency either reasonably relied on their failure to demonstrate changed country conditions excusing the untimely filing of their motions, or concluded that they failed to establish their prima facie eligibility for relief. See 8 C.F.R. §§ 1003.2(c), 1003.23(b); see also INS v. Abudu, 485 U.S. 94, 104 (1988). Some of the petitioners4 argue that the agency failed to give sufficient consideration to the statement of Jin Fu Chen, who alleged that he suffered forcible sterilization after his return to China based on the births of his two children in Japan. A prior panel of this Court remanded a petition making a similar claim so that Jin Fu Chen’s statement (which was submitted to the BIA after a remand) could be considered by the IJ. See Zheng v. Holder, No. 07-3970-ag (2d Cir. Jan. 15, 2010). Since that remand, the BIA has repeatedly concluded that Jin Fu Chen’s statement does not support a claim of changed country conditions or a reasonable possibility of persecution. Accordingly, we find no abuse of discretion in 4 The petitioners in Jun Qin Ke v. Holder, No. 08-4139-ag; Xing Qiang Yang v. Holder, No. 08-5000-ag; Dao-Shu Lin v. Holder, No. 09-0167-ag; Chun-Hui Huang v. Holder, No. 09-4220-ag; Yan Chen v. Holder, No. 09-4837-ag; and Zhang Bing Chen v. Holder, No. 09-4936- ag. 12132010-1-34 -7- the BIA’s summary consideration of that statement in these cases. See Jian Hui Shao, 546 F.3d at 169 (recognizing that the Court has rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (providing that the agency may summarily consider evidence that is “oft-cited” and that it “is asked to consider time and again”). We cannot say, furthermore, that the agency’s conclusions concerning the probative force of the statement involved any error of law. Eight of the petitioners5 argue that the BIA erred by relying on the U.S. Department of State’s 2007 Profile of Asylum Claims and Country Conditions in China (“2007 Profile”) because statements in that document are based on mistranslated and contradictory evidence. However, we have repeatedly concluded, as the BIA did here, that the purportedly corrected translations do not materially alter the meaning of the 2007 Profile by demonstrating a risk of forced sterilization. To 5 The petitioners in Jinxiu Zheng v. Holder, No. 09-1877-ag; Ming Teng Zhang v. Holder, No. 09-2827-ag; Ming Ying Zheng, Kok Poh Lin v. Holder, No. 09-2853-ag; De Yong Chen v. Holder, No. 09-2855- ag; Zhen Guang Jiang v. Holder, No. 09-3083-ag; Shuai Zheng v. Holder, No. 09-4374-ag; TianGong Zheng v. Holder, No. 09-4644-ag; and Xiu Zhen Lin v. Holder, No. 09-4712-ag. 12132010-1-34 -8- the extent that the BIA declined to credit some of the petitioners’6 unauthenticated, individualized evidence in light of an underlying adverse credibility determination, the BIA did not abuse its discretion. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007). Finally, one of the petitioners7 argues that the BIA violated her right to due process and equal protection of the law by refusing to reopen her proceedings to file a successive application for withholding of removal and CAT relief. The petitioner’s equal protection argument is foreclosed by Yuen Jin v. Mukasey, 538 F.3d 143, 158-59 (2d Cir. 2008). We find no merit to petitioner’s due process argument. Assuming, arguendo, that petitioner has a protected interest in withholding of removal and CAT relief, we conclude that she received constitutionally sufficient process when the agency adjudicated her initial application for relief and provided her the opportunity to submit evidence in support of two 6 The petitioners in Xiu Zhu v. Holder, No. 09-0550-ag; Jiang Deng v. Holder, No. 09-3891-ag; Xin Ying Zheng v. Holder, No. 09- 4219-ag; TianGong Zheng v. Holder, No. 09-4644-ag; Yi Jian Wang v. Holder, No. 09-4649-ag; Bo Kun Zhu v. Holder, No. 09-4711-ag; Mei Rong Chen v. Holder, No. 09-4791-ag; Jing Li v. Holder, No. 09- 4821-ag; Xiao Li Liu v. Holder, No. 09-4905-ag; and Tan Lan Chi v. Holder, No. 09-5262-ag. 7 The petitioner in Mei Rong Chen v. Holder, No. 09-4791-ag. 12132010-1-34 -9- motions to reopen. See id. at 157. For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 12132010-1-34 -10- 

734 A.2d 350 (1996) STATE of New Jersey v. Pedro SOTO, Delores Braswell, Larnie Boddy, Chauncey Davidson, Milton Lumpkin, Alfred S. Poole, Sam Gant, Donald Crews, Kim Harris, Ocie Norman, Antoine Peters, Floyd Porter, Theotis Williams a/k/a Walter Day, Paul Dacosta, Ronnie Lockhart, Terri Monroe and Kevin Jackson, Defendants. Superior Court of New Jersey, Law Division, Gloucester County. Decided March 4, 1996. *351 P. Jeffrey Wintner, Deputy Public Defender I, for defendants Pedro Soto, Delores Braswell, Larnie Boddy, Chauncey Davidson, Milton Lumpkin and Alfred S. Poole (Susan L. Reisner, Public Defender, attorney). Wayne E. Natale, Deputy Public Defender II, for defendant Sam Gant (Susan L. Reisner, Public Defender, attorney). Carrie D. Dingle, Assistant Deputy Public Defender I, for defendants Donald Crews, Kim Harris, Ocie Norman, Antoine Peters, Floyd Porter, and Theotis Williams a/k/a Walter Day (Susan L. Reisner, Public Defender, attorney). William H. Buckman, Moorestown, for defendants Paul DaCosta, Ronnie Lockhart and Terri Monroe. Justin Loughry, Cherry Hill, for defendant Kevin Jackson (Tomar, Simonoff, *352 Adourian, O'Brien, Kaplan, Jacoby & Graziano, attorneys). John M. Fahy, Senior Deputy Attorney General (Deborah T. Poritz, Attorney General of New Jersey, attorney) and Brent Hopkins, Assistant Gloucester County Prosecutor (Harris Y. Cotton, Gloucester County Prosecutor, attorney), for the State of New Jersey. ROBERT E. FRANCIS, J.S.C. These are consolidated motions to suppress under the equal protection and due process clauses of the Fourteenth Amendment.[1] Seventeen defendants of African ancestry claim that their arrests on the New Jersey Turnpike south of exit 3 between 1988 and 1991 result from discriminatory enforcement of the traffic laws by the New Jersey State Police.[2] After a lengthy hearing, I find defendants have established a prima facie case of selective enforcement which the State has failed to rebut requiring suppression of all contraband and evidence seized. Defendants base their claim of institutional racism primarily on statistics. During discovery, each side created a database of all stops and arrests by State Police members patrolling the Turnpike between exits 1 and 7A out of the Moorestown Station for thirty-five randomly selected days between April 1988 and May 1991 from arrest reports, patrol charts, radio logs and traffic tickets. The databases are essentially the same. Both sides counted 3060 stops which the State found to include 1212 race identified stops (39.6%), the defense 1146 (37.4%). To establish a standard against which to compare the stop data, the defense conducted a traffic survey and a violator survey. Dr. John Lamberth, Chairman of the Psychology Department at Temple University who I found is qualified as an expert in statistics and social psychology, designed both surveys. The traffic survey was conducted over twenty-one randomly selected two and one-half hour sessions between June 11 and June 24, 1993 and between 8:00 a.m. and 8:00 p.m. at four sites, two northbound and two southbound, between exits 1 and 3 of the Turnpike. Teams supervised by Fred Last, Esq., of the Office of the Public Defender observed and recorded the number of vehicles that passed them except for large trucks, tractortrailers, buses and government vehicles, how many contained a "black" occupant and the state of origin of each vehicle. Of the 42,706 vehicles counted, 13.5% had a black occupant. Dr. Lamberth testified that this percentage is consistent with the 1990 Census figures for the eleven states from where almost 90% of the observed vehicles were registered. He said it is also consistent with a study done by the Triangle Group for the U.S. Department of Transportation with which he was familiar. The violator survey was conducted over ten sessions in four days in July 1993 by Mr. Last traveling between exits 1 and 3 in his vehicle at sixty miles per hour on cruise control after the speedometer had been calibrated and observing and recording the number of vehicles that passed him, the number of vehicles he passed and how many had a black occupant. Mr. Last counted a total of 2096 vehicles other than large trucks, tractortrailers, buses and government vehicles of which 2062 or 98.1% passed him going in excess of sixty miles per hour including 306 with a black occupant equaling about 15% of those vehicles clearly speeding. Multiple violators, that is those violating the speed limit and *353 committing some other moving violation like tailgating, also equaled about 15% black. Dr. Lamberth testified that the difference between the percentage of black violators and the percentage of black travelers from the surveys is statistically insignificant and that there is no evidence traffic patterns changed between the period April 1988 to May 1991 in the databases and June—July 1993 when the surveys were done. Using 13.5% as the standard or benchmark against which to compare the stop data, Dr. Lamberth found that 127 or 46.2% of the race identified stops between exits 1 and 3 were of blacks constituting an absolute disparity of 32.7%, a comparative disparity of 242% (32.7% divided by 13.5%) and 16.35 standard deviations. By convention, something is considered statistically significant if it would occur by chance fewer than five times in a hundred (over two standard deviations). In case I were to determine that the appropriate stop data for comparison with the standard is the stop data for the entire portion of the Turnpike patrolled by the Moorestown Station in recognition of the fact that the same troopers patrol between exits 3 and 7A as patrol between exits 1 and 3, Dr. Lamberth found that 408 or 35.6% of the race identified stops between exits 1 and 7A were of blacks constituting an absolute disparity of 22.1%, a comparative disparity of 164% and 22.1 standard deviations.[3] He opined it is highly unlikely such statistics could have occurred randomly or by chance.[4] Defendants also presented the testimony of Dr. Joseph B. Kadane, an eminently qualified statistician. Among his many credentials, Dr. Kadane is a full professor of statistics and social sciences at Carnegie Mellon University, headed the Department of Statistics there between 1972 and 1981 and is a Fellow of the American Statistical Association, having served on its board of directors and a number of its committees and held various editorships on its Journal. Dr. Kadane testified that in his opinion both the traffic and violator surveys were well designed, carefully performed and statistically reliable for analysis. From the surveys and the defense database, he calculated that a black was 4.85 times as likely as a white to be stopped between exits 1 and 3. This calculation led him to "suspect" a racially non-neutral stopping policy. While he noted that the surveys were done in 1993 and compared to data from 1988 to 1991, he was nevertheless satisfied that the comparisons were useable and accurate within a few percent. He was not concerned that the violator survey failed to count cars going less than sixty miles per hour and travelling behind Mr. Last when he started a session. He was concerned, however, with the fact that only 37.4% of the stops in the defense database were race identified.[5] In order to determine if the comparisons were sensitive to the missing racial data, he did *354 calculations performed on the log odds of being stopped. Whether he assumed the probability of having one's race recorded if black and stopped is the same as if white and stopped or two or three times as likely, the log odds were still greater than.99 that blacks were stopped at higher rates than whites on the Turnpike between exits 1 and 3 during the period April 1988 to May 1991. He therefore concluded that the comparisons were not sensitive to the missing racial data. Supposing that the disproportionate stopping of blacks was related to police discretion, the defense studied the traffic tickets issued by State Police members between exits 1 and 7A on the thirty-five randomly selected days broken down by State Police unit.[6] There are 533 racially identified tickets in the databases issued by either the now disbanded Radar Unit, the Tactical Patrol Unit or general road troopers ("Patrol Unit"). The testimony indicates that the Radar Unit focused mainly on speeders using a radar van and chase cars and exercised limited discretion regarding which vehicles to stop. The Tac-Pac concentrates on traffic problems at specific locations and exercises somewhat more discretion as regards which vehicles to stop. Responsible to provide general law enforcement, the Patrol Unit exercises by far the most discretion among the three units. From Mr. Last's count, Dr. Lamberth computed that 18% of the tickets issued by the Radar Unit were to blacks, 23.8% of the tickets issued by the Tac-Pac were to blacks while 34.2% of the tickets issued by the Patrol Unit were to blacks. South of exit 3, Dr. Lamberth computed that 19.4% of the tickets issued by the Radar Unit were to blacks, 0.0% of the tickets issued by the Tac-Pac were to blacks while 43.8% of the tickets issued by the Patrol Unit were to blacks. In his opinion, the Radar Unit percentages are statistically consistent with the standard established by the violator survey, but the differences between the Radar Unit and the Patrol Unit between both exits 1 and 3 and 1 and 7A are statistically significant or well in excess of two standard deviations. The State presented the testimony of Dr. Leonard Cupingood to challenge or refute the statistical evidence offered by the defense. I found Dr. Cupingood is qualified to give expert testimony in the field of statistics based on his Ph.D in statistics from Temple and his work experience with the Center for Forensic Economic Studies, a for profit corporation headquartered in Philadelphia. Dr. Cupingood collaborated with Dr. Bernard Siskin, his superior at the Center for Forensic Economic Studies and a former chairman of the Department of Statistics at Temple. Dr. Cupingood had no genuine criticism of the defense traffic survey. Rather, he centered his criticism of the defense statistical evidence on the violator survey. Throughout his testimony he maintained that the violator survey failed to capture the relevant data which he opined was the racial mix of those speeders most likely to be stopped or the "tail of the distribution." He even recommended the State authorize him to design a study to collect this data, but the State declined. He was unclear, though, how he would design a study to ascertain in a safe way the vehicle going the fastest above the speed limit at a given time at a given location and the race of its occupants without involving the credibility of State Police members. In any event, his supposition that maybe blacks drive faster than whites above the speed limit was repudiated by all State Police members called by the State who were questioned about it. Colonel Clinton Pagano, Trooper Donald Nemeth, Trooper Stephen Baumann and Detective Timothy Grant each testified that blacks drive indistinguishably from whites. Moreover, *355 Dr. Cupingood acknowledged that he knew of no study indicating that blacks drive worse than whites. Nor could he reconcile the notion with the evidence that 37% of the unticketed stops between exits 1 and 7A in his database were black and 63% of those between exits 1 and 3. Dr. James Fyfe, a criminal justice professor at Temple who the defense called in its rebuttal case and who I found is qualified as an expert in police science and police procedures, also testified that there is nothing in the literature or in his personal experience to support the theory that blacks drive differently from whites.[7] Convinced in his belief that the defense 15% standard or benchmark was open to question, Dr. Cupingood attempted to find the appropriate benchmark to compare with the databases. He did three studies of presumedly race-blind stops: night stops versus day stops; radar stops versus non-radar stops and drinking driving arrests triggered by calls for service. In his study of night stops versus day stops, he compared the percentage of stops of blacks at night between exits 1 and 7A in the databases with the percentage of stops of blacks during daytime and found that night stops were 37.3% black versus 30.2% for daytime stops. Since he presumed the State Police generally cannot tell race at night, he concluded the higher percentage for night stops of blacks supported a standard well above 15%. His premise that the State Police generally cannot recognize race at night, however, is belied by the evidence. On July 16, 1994 between 9:40 p.m. and 11:00 p.m. Ahmad S. Corbitt, now an assistant deputy public defender, together with Investigator Minor of the Office of the Public Defender drove on the Turnpike at 55 miles per hour for a while and parked perpendicular to the Turnpike at a rest stop for a while to see if they could make out the races of the occupants of the vehicles they observed. Mr. Corbitt testified that the two could identify blacks versus whites about 80% of the time in the moving mode and close to 100% in the stationary mode. Over and above this proof is the fact the databases establish that the State Police only stopped an average of eight black occupied vehicles per night between exits 1 and 7A. Dr. Cupingood conceded a trooper could probably identify one or two black motorists per night. Next, in his study of radar stops versus non-radar stops, Dr. Cupingood focused on the race identified tickets where radar was used in the databases and found that 28.5% of them were issued to blacks. Since he assumed that radar is race neutral, he suggested 28 .5% might be the correct standard. As Dr. Kadane said in rebuttal, this study is fundamentally flawed because it assumes what is in question or that the people stopped are the best measure of who is eligible to be stopped. If racial prejudice were afoot, the standard would be tainted. In addition, although a radar device is race-blind, the operator may not be. Of far more significance is the defense study comparing the traffic tickets issued by the Radar, Tac-Pac and Patrol Units which shows again that where radar is used by a unit concerned primarily with speeders and acting with little or no discretion like the Radar Unit, the percentage of tickets issued to blacks is consistent with their percentage on the highway. *356 And lastly in his effort to find the correct standard, Dr. Cupingood considered a DUI study done by Lieutenant Fred Madden, Administrative Officer of the Records and Identification Section of the State Police. Lt. Madden tabulated DUI arrests between July 1988 and June 1991 statewide, statewide excluding the State Police, for Troop D of the State Police which patrols the entire length of the Turnpike, for Moorestown Station of Troop D and for Moorestown Station south of exit 3 broken down by race and between patrol related versus calls for service (i.e. accidents, motorist aids and other-the arrested motorist coming to the attention of the State Police by a toll-taker or civilian). Since Dr. Cupingood believed DUI arrests from calls for service were race neutral, he adopted the percentage of DUI arrests of blacks for the Moorestown Station from calls for service of 23% as a possible standard. Like his radar versus non-radar stop study, his use of the DUI arrest study is fundamentally flawed because he assumed what is in question. Further, he erred in assuming that DUI arrests from calls for service involve no discretion. While the encounters involve no discretion, the arrests surely do. He admitted that race/discretion may explain the following widespread statistics in the DUI arrest study: Statewide (all departments) 12% black Statewide (excluding State Police) 10.4% black State Police 16% black Troop D 23% black Moorestown Station 34% black Moorestown Station patrol related 41% black Moorestown Station patrol related south of exit 3 50% black After hearing the testimony of Kenneth Ruff and Kenneth Wilson, two former troopers called by the defense who were not reappointed at the end of their terms and who said they were trained and coached to make race based "profile" stops to increase their criminal arrests, the State asked Dr. Cupingood to study the race identified stops in his database and see how many possessed the profile characteristics cited by Ruff and Wilson, particularly how many were young (30 or under), black and male. Dr. Cupingood found that only 11.6% of the race identified stops were of young black males and only 6.6% of all stops were of young black males. The defense then conducted a profile study of its own. It concentrated on the race identified stops of just blacks issued tickets and found that an adult black male was present in 88% of the cases where the gender of all occupants could be determined and that where gender and age could be determined, a black male 30 or younger was present in 63% of the cases. The defense study is more probative because it does concentrate on just stops of blacks issued tickets eliminating misleading comparisons with totals including whites or whites and a 62.6% group of race unknowns. Neither side, of course, could consider whether the blacks stopped and not issued tickets possessed profile characteristics since the databases contain no information about them. Dr. Cupingood's so-called Mantel-Haentzel analysis ended the statistical evidence. He put forward this calculation of "expected black tickets" in an attempt to disprove the defense study showing the Patrol Unit, the unit with the most discretion, ticketed blacks at a rate not only well above the Radar and Tac-Pac Units, but also well above the standard fixed by the violator survey. The calculation insinuates that the Patrol Unit issued merely 5 excess tickets to blacks beyond what would have been expected. The calculation is worthless. First and foremost, Dr. Cupingood deleted the non-radar tickets which presumably involved a greater exercise of discretion. The role police discretion played in the issuance of tickets to blacks was the object of the defense study. Under the guise of comparing only things similarly situated, he thereupon deleted any radar tickets not issued in one of the four time periods he divided each of the thirty-five randomly selected days into for *357 which there was not at least one race identified radar ticket issued by the Patrol Unit and at least one by the combined Radar, Tac-Pac Unit. He provided no justification for either creating the 140 time periods or combining the tickets of the Radar and Tac-Pac Units. To compound his defective analysis, he pooled the data in each time period into a single number and employed the resultant weighted average of the two units to compute the expected and excess, if any, tickets issued to blacks. By using weighted averages, he once again assumed the answer to the question he purported to address. He assumed the Patrol Unit gave the same number of tickets to blacks as did the Radar, Tac-Pac Unit, rather than test to see if it did. Even after "winnowing" the data, the comparison between the Patrol Unit and the Radar, Tac-Pac Unit is marginally statistically significant. Without winnowing, Dr. Kadane found the comparison of the radar tickets issued by the Patrol Unit to blacks with the radar tickets issued by the Radar, Tac-Pac Unit to blacks constituted 3.78 standard deviations which is distinctly above the 5% standard of statistical significance. The defense did not rest on its statistical evidence alone. Along with the testimony of former troopers Kenneth Ruff and Kenneth Wilson about having been trained and coached to make race based profile stops but whose testimony is weakened by bias related to their not having been reappointed at the end of their terms, the defense elicited evidence through cross-examination of State witnesses and a rebuttal witness, Dr. James Fyfe, that the State Police hierarchy allowed, condoned, cultivated and tolerated discrimination between 1988 and 1991 in its crusade to rid New Jersey of the scourge of drugs. Conjointly with the passage of the Comprehensive Drug Reform Act of 1987 and to advance the Attorney General's Statewide Action Plan for Narcotics Enforcement issued in January 1988 which "directed that the enforcement of our criminal drug laws shall be the highest priority law enforcement activity", Colonel Pagano formed the Drug Interdiction Training Unit (DITU) in late 1987 consisting of two supervisors and ten other members, two from each Troop selected for their successful seizure statistics, "... to actually patrol with junior road personnel and provide critical on-the-job training in recognizing potential violators." State Police Plan For Action dated July 7, 1987, at p. 14. According to Colonel Pagano, the DITU program was intended to be one step beyond the existing coach program to impart to newer troopers insight into drug enforcement and the "criminal program" (patrol related arrests) in general. DITU was disbanded in or around July 1992. No training materials remain regarding the training DITU members themselves received, and few training materials remain regarding the training DITU members provided the newer troopers except for a batch of checklists.[8] Just one impact study was ever prepared regarding the effectiveness of the DITU program rather than periodic impact evaluations and studies as required by S.O.P. F4 dated January 12, 1989, but this one undated report marked D-62 in evidence only provided statistics about the number of investigations conducted, the number of persons involved and the quantity and value of drugs seized without indicating the race of those involved or the number of fruitless investigations broken down by race. In the opinion of Dr. Fyfe, retention of training materials is important for review of the propriety of the training and to discern *358 agency policy, and preparation of periodic impact evaluations and studies is important not only to determine the effectiveness of the program from a numbers standpoint, but more than that to enable administration to monitor and control the quality of the program and its impact on the public, especially a crackdown program like DITU which placed so much emphasis on stopping drug transportation by the use of "consents" to search following traffic stops in order to prevent constitutional excesses. Despite the paucity of training materials and lack of periodic and complete impact evaluations and studies, a glimpse of the work of DITU emerges from the preserved checklists and the testimony of Sergeants Brian Caffrey and David Cobb. Sergeant Caffrey was the original assistant supervisor of DITU and became the supervisor in 1989. Sergeant Cobb was an original member of DITU and became the assistant supervisor in 1989. Sergeant Caffrey left DITU sometime in 1992, Sergeant Cobb sometime in 1991. Both testified that a major purpose of DITU was to teach trainees tip-offs and techniques about what to look for and do to talk or "dig" their way into a vehicle after, not before, a motor vehicle stop to effectuate patrol related arrests. Both denied teaching or using race as a tip-off either before or after a stop. Nevertheless, Sergeant Caffrey condoned a comment by a DITU trainer during the time he was the supervisor of DITU stating: "Trooper Fash previously had DITU training, and it showed in the way he worked. He has become a little reluctant to stop cars in lieu [sic] of the Channel 9 News Report. He was told as long as he uses Title 39 he can stop any car he wants. He enjoys DITU and would like to ride again." As the defense observes in its closing brief, "Why would a trooper who is acting in a racially neutral fashion become reluctant to stop cars as a result of a news story charging that racial minorities were being targeted [by the New Jersey State Police]?" Even A.A.G. Ronald Susswein, Deputy Director of the Division of Criminal Justice, acknowledged that this comment is incomplete because it fails to add the caveat, "as long as he doesn't also use race or ethnicity." Further, Sergeant Caffrey testified that "ethnicity is something to keep in mind" albeit not a tip-off and that he taught attendees at both the annual State Police in-service training session in March 1987 and the special State Police in-service training sessions in July and August 1987 that Hispanics are mainly involved in drug trafficking and showed them the film Operation Pipeline wherein the ethnicity of those arrested, mostly Hispanics, is prominently depicted. Dr. Fyfe criticized Sergeant Caffrey's teaching Hispanics are mainly involved and his showing Operation Pipeline as well as the showing of the Jamaican Posse film wherein only blacks are depicted as drug traffickers at the 1989 annual State Police in-service training session saying trainers should not teach what they do not intend their trainees to act upon. At a minimum, teaching Hispanics are mainly involved in drug trafficking and showing films depicting mostly Hispanics and blacks trafficking in drugs at training sessions worked at cross-purposes with concomitant instruction pointing out that neither race nor ethnicity may be considered in making traffic stops. Key corroboration for finding the State Police hierarchy allowed and tolerated discrimination came from Colonel Pagano. Colonel Pagano was Superintendent of the State Police from 1975 to February 1990. He testified there was a noisy demand in the 1980s to get drugs off the streets. In accord, Attorney General Cary Edwards and he made drug interdiction the number one priority of law enforcement. He helped formulate the Attorney General's Statewide Action Plan for Narcotics Enforcement and established DITU within the State Police. He kept an eye on DITU through conversations with staff officers and Sergeants Mastella and Caffrey and *359 review of reports generated under the traditional reporting system and D-62 in evidence. He had no thought DITU would engage in constitutional violations. He knew all State Police members were taught that they were guardians of the Constitution and that targeting any race was unconstitutional and poor police practice to boot. He recognized it was his responsibility to see that race was not a factor in who was stopped, searched and arrested. When he became Superintendent, he formed the Internal Affairs Bureau to investigate citizen complaints against State Police members to maintain the integrity of the Division. Substantiated deviations from regulations resulted in sanctions, additional training or counseling. More telling, however, is what Colonel Pagano said and did, or did not do, in response to the Channel 9 exposé entitled "Without Just Cause" which aired in 1989 and which troubled Trooper Fash and what he did not do in response to complaints of profiling from the NAACP and ACLU and these consolidated motions to suppress and similar motions in Warren and Middlesex Counties. He said to Joe Collum of Channel 9 that "[violating rights of motorists was] of serious concern [to him], but no where near the concern that I think we have got to look to in trying to correct some of the problems we find with the criminal element in this State" and "the bottom line is that those stops were not made on the basis of race alone." (emphasis added) Since perhaps these isolated comments were said inadvertently or edited out of context, a truer reflection of his attitude about claims of racism would appear to be his videotaped remarks shown all members of the State Police at roll call in conjunction with the WOR series. Thereon he clearly said that he did not want targeting or discriminatory enforcement and that "[w]hen you put on this uniform, you leave your biases and your prejudices behind." But he also said as regarded the charge of a Trenton school principal named Jones that he had been stopped on the Turnpike and threatened, intimidated and assaulted by a trooper, "We know that the teacher assaulted the trooper. He didn't have a driver's license or a registration for his fancy new Mercedes." (emphasis added) And he called Paul McLemore, the first African-American trooper in New Jersey and now a practicing attorney and who spoke of discrimination within the ranks of the State Police, "an ingrate." And he told the members to "keep the heat on" and then assured them: "...[H]ere at Division Headquarters we'll make sure that when the wheels start to squeak, we'll do whatever we can to make sure that you're supported out in the field.... Anything that goes toward implementing the Drug Reform Act is important. And, we'll handle the squeaky wheels here." He admitted the Internal Affairs Bureau was not designed to investigate general complaints, so he could not refer the general complaints of discrimination to it for scrutiny. Yet he never requested the Analytical Unit to investigate stop data from radio logs, patrol charts and tickets or search and seizure data from arrest reports, operations reports, investigation reports and consent to search forms, not even after the Analytical Unit informed him in a report on arrests by region, race and crime that he had requested from it for his use in the WOR series that "... arrests are not a valid reflection of stops (data relative to stops with respect to race is not compiled)." The databases compiled for these motions attest, of course, to the fact that race identified stop data could have been compiled. He testified he could not launch an investigation into every general complaint because of limited resources and that there was insufficient evidence of discriminations in the Channel 9 series, the NAACP and ACLU complaints and the various motions to suppress for him to spend his "precious" resources. In short, he left the issue of discrimination up to the courts and months of testimony in this and other counties at State expense. The right to be free from discrimination is firmly supported by the Fourteenth *360 Amendment to the United States Constitution and the protections of Article I, paragraphs 1 and 5 of the New Jersey Constitution of 1947. To be sure, "[t]he eradication of the `cancer of discrimination' has long been one of our State's highest priorities." Dixon v. Rutgers, The State University of N.J., 110 N.J. 432, 451, 541 A.2d 1046 (1988). It is indisputable, therefore, that the police may not stop a motorist based on race or any other invidious classification. See State v. Kuhn, 213 N.J.Super. 275, 517 A.2d 162 (1986). Generally, however, the inquiry for determining the constitutionality of a stop or a search and seizure is limited to "whether the conduct of the law enforcement officer who undertook the [stop or] search was objectively reasonable, without regard to his or her underlying motives or intent." State v. Bruzzese, 94 N.J. 210, 463 A.2d 320 (1983). Thus, it has been said that the courts will not inquire into the motivation of a police officer whose stop of a vehicle was based upon a traffic violation committed in his presence. See United States v. Smith, 799 F.2d 704, 708-709 (11th Cir.1986); United States v. Hollman, 541 F.2d 196, 198 (8th Cir.1976); cf. United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). But where objective evidence establishes "that a police agency has embarked upon an officially sanctioned or de facto policy of targeting minorities for investigation and arrest," any evidence seized will be suppressed to deter future insolence in office by those charged with enforcement of the law and to maintain judicial integrity. State v. Kennedy, 247 N.J.Super. 21, 588 A.2d 834 (App.Div. 1991). Statistics may be used to make out a case of targeting minorities for prosecution of traffic offenses provided the comparison is between the racial composition of the motorist population violating the traffic laws and the racial composition of those arrested for traffic infractions on the relevant roadway patrolled by the police agency. Wards Cove Packing Co. v. Atonio, supra; State v. Kennedy, 247 N.J.Super. at 33-34, 588 A.2d 834. While defendants have the burden of proving "the existence of purposeful discrimination," discriminatory intent may be inferred from statistical proof presenting a stark pattern or an even less extreme pattern in certain limited contexts. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct 1756, 95 L.Ed.2d 262 (1987). Kennedy, supra, implies that discriminatory intent may be inferred from statistical proof in a traffic stop context probably because only uniform variables (Title 39 violations) are relevant to the challenged stops and the State has an opportunity to explain the statistical disparity. "[A] selection procedure that is susceptible of abuse... supports the presumption of discrimination raised by the statistical showing." Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). Once defendants expose a prima facie case of selective enforcement, the State generally cannot rebut it by merely calling attention to possible flaws or unmeasured variables in defendants' statistics. Rather, the State must introduce specific evidence showing that either there actually are defects which bias the results or the missing factors, when properly organized and accounted for, eliminate or explain the disparity. Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986); EEOC v. General Telephone Co. of Northwest, Inc., 885 F.2d 575 (9th Cir.1989). Nor will mere denials or reliance on the good faith of the officers suffice. Castaneda v. Partida, 430 U.S. at 498 n. 19, 97 S.Ct. 1272, 51 L.Ed.2d 498. Here, defendants have proven at least a de facto policy on the part of the State Police out of the Moorestown Station of targeting blacks for investigation and arrest between April 1988 and May 1991 both south of exit 3 and between exits 1 and 7A of the Turnpike. Their surveys satisfy Wards Cove, supra. The statistical disparities and standard deviations revealed are indeed stark. The discretion devolved upon general road *361 troopers to stop any car they want as long as Title 39 is used evinces a selection process that is susceptible of abuse. The utter failure of the State Police hierarchy to monitor and control a crackdown program like DITU or investigate the many claims of institutional discrimination manifests its indifference if not acceptance. Against all this, the State submits only denials and the conjecture and flawed studies of Dr. Cupingood. The eradication of illegal drugs from our State is an obviously worthy goal, but not at the expense of individual rights. As Justice Brandeis so wisely said dissenting in Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 72 L.Ed. 944 (1928): "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evilminded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Motions granted. NOTES [1] The motions also include claims under the Fourth Amendment, but they were severed before the hearing to await future proceedings if not rendered moot by this decision. [2] Originally, twenty-three defendants joined in the motions. On the first day of the hearing, November 28, 1994, I dismissed the motions of Darrell Stanley, Roderick Fitzgerald, Fred Robinson, Charles W. Grayer, Keith Perry and Alton Williams due to their unexplained nonappearances. [3] Dr. Lamberth erred in using 13.5% as the standard for comparison with the stop data. The violator survey indicates that 14 .8%, rounded to 15%, of those observed speeding were black. This percentage is the percentage Dr. Lamberth should have used in making statistical comparisons with the stop data in the databases. Nonetheless, it would appear that whatever the correctly calculated disparities and standard deviations are, they would be nearly equal to those calculated by Dr. Lamberth. [4] In this opinion I am ignoring the arrest data in the databases and Dr. Lamberth's analysis thereof since neither side produced any evidence identifying the Turnpike population between exits 1 and 3 or 1 and 7A eligible to be arrested for drug offenses or otherwise. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). [5] That 62.6 percent of the stops in the defense database are not race identified is a consequence of both the destruction of the radio logs for ten of the thirty-five randomly selected days in accordance with the State Police document retention policy and the frequent dereliction of State Police members to comply with S.O.P. F3 effective July 13, 1984 requiring them to communicate by radio to their respective stations the race of all occupants of vehicles stopped prior to any contact. [6] Of the 3060 stops in the databases, 1292 are ticketed stops. Hence, no tickets were issued for nearly 60% of the stops. [7] During the hearing the State did attempt to introduce some annual speed surveys conducted on the Turnpike by the New JerseyDepartment of Transportation which the State represented would contradict a conclusion of the violator survey that 98.1% of the vehicles observed travelled in excess of sixty miles per hour. Besides noting that the State knew of these surveys long before the hearing and failed to produce them in discovery, I denied the proffer mainly because the surveys lacked racial data and also because there was a serious issue over their trustworthiness for admission under N.J.R.E. 803(c)(8) since the surveys were done to receive federal highway dollars. The critical information here is the racial mix of those eligible to be stopped, not the percentage of vehicles exceeding the speed limit. [8] Although DITU kept copies of all arrest, operations and investigation reports and consent to search forms growing out of encounters with the public during training for a time at its office, the copies were destroyed sometime in 1989 or 1990 and before they were sought in discovery. The originals of these reports and forms were filed at the trainee's station and incorporated into the State Police "traditional reporting system" making them impossible to ferret out now.

134 F.2d 931 (1943) STEINER v. UNITED STATES. No. 10370. Circuit Court of Appeals, Fifth Circuit. March 29, 1943. Rehearing Denied April 24, 1943. *932 Saul Stone and Warren O. Coleman, both of New Orleans, La., for appellant. Herbert W. Christenberry, U. S. Atty., of New Orleans, La., for appellee. Before HUTCHESON, HOLMES, and McCORD, Circuit Judges. *933 McCORD, Circuit Judge. Arthur A. Steiner, Esther E. Stein, and James R. Stewart were tried, convicted, and sentenced under five counts of a six-count indictment which charged them with use of the mails in furtherance of a scheme to defraud, in violation of Section 215 of the Criminal Code, 18 U.S.C.A. § 338. Steiner alone has appealed. The indictment charges and the proof shows that Steiner, Stein, and Stewart evolved and put into practice a scheme to procure fraudulent reductions of tax assessments on real and personal property in the City of New Orleans, Louisiana. Steiner, a lawyer, solicited and secured taxpayer clients, agreeing for a fee to secure a tax assessment reduction from the Louisiana Tax Commission. Stewart, chief clerk in the New Orleans office of the Tax Commission, by virtue of his position of trust and confidence, had the client's assessment reduced on the tax rolls and approved by the Commission. Thereafter the taxpayer paid the taxes on the basis of the fraudulently reduced assessment, and from month to month and day to day the monies so paid were covered into the public treasuries. Stein acted as go-between for Steiner and Stewart. The partners agreed to divide the proceeds of their nefarious scheme. Steiner charged clients a fee of usually one-half of the tax savings, and it was agreed that upon collection of such fees Steiner was to get one-fourth, Stein one-fourth, and Stewart one-half. On occasion letters were written by Steiner for the purpose of collecting fees from clients, and it is shown that Stein had statement forms printed bearing the heading "Steiner and Stein"; that such forms were used to send statements to clients; and that the forms were furnished to Stewart who mailed them to clients when he had fraudulently procured the agreed assessment reductions. By this scheme a fraud of the most reprehensible kind was perpetrated upon the State of Louisiana, its agencies, and taxpayers, in that assessments were reduced unfairly, inequitably, and fraudulently, thereby preventing collection of the full amount of taxes rightfully due. The evidence is without dispute that Steiner and his partners defrauded the State and its taxpayers out of many thousands of dollars; that theirs was a continuous and continuing scheme whereby they reaped a rich harvest of unlawful gain not only for one year, but in many cases from year to year; and that after paying taxes for one year taxpayers would find their assessments for the new year raised, and the partners would again have the assessments fraudulently reduced, and send out bills and receive payments. With Stewart working in the Tax Commission office as chief clerk and being in charge of tax estimates and settlements and fully trusted by the Tax Commissioners, the fraudulent scheme might have indefinitely would its way through devious trails of corruption and fraud; but Steiner, having once embarked on the crime way, could not bring himself to divide the spoils as he had agreed to do. It was only one more step for him to steal from his confederates, and when he did, they commenced to complain and then to threaten him for their part of the monies which he had withheld. Cornered and trapped by his dissatisfied confederates, and facing detection and disgrace, Steiner thereupon sought out an officer of the Louisiana Bar Association and attempted to gain immunity for himself by turning informer against his partners and others whom he named and alleged were engaged in the unlawful "tax racket". That the mails of the United States were used in furtherance of the scheme cannot, we think, be doubted. The scheme was a continuous one in which these partners in crime worked hand-in-glove to defeat the collection of lawful taxes. The mailing of letters and statements to clients for the collection of fees was a necessary, indeed indispensable, element of that scheme, for without money to bribe Stewart and divide with Stein and Steiner the partnership would have failed. The continuity of the scheme is shown by evidence that clients who withdrew their patronage had their assessments raised. There is no dispute but that tax payments were made after entry of the fraudulent assessment reductions on the tax books. Moreover, if the fees were not paid by clients it reasonably follows that Stewart, who worked the fraud to get the assessments reduced, could use his place and position to get them raised again. In one instance where a client thought a reduction from approximately $140,000.00 to $40,000.00 was too much and declined to accept Steiner's services in the matter, the assessment was caused by the partner Stewart to be raised to in excess of $80,00.00, an amount acceptable to the taxpayer. Lane Cotton Mills which dispensed with these most successful reduction services *934 after using them for several years found that upon dismissal of Steiner its assessments soared even higher than before. Appellant contends that the scheme to defraud the State and its taxpayers was consummated at the instant the illegal tax assessment reductions were entered on the books of the Tax Commission; and that the mails were used after the execution of the scheme and in connection with matters wholly outside the scheme to defraud. Cf. McNear v. United States, 10 Cir., 60 F.2d 861; Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286; Spillers v. United States, 5 Cir., 47 F.2d 893; Stapp v. United States, 5 Cir., 120 F.2d 898. The case at bar is not controlled by those decisions, for here the scheme to defraud had not come to an end when the mails were used. Unless money came in, the scheme would not and could not operate, for Stewart, the keyman with access to the tax rolls, Steiner, the soliciting lawyer, and Stein, the go-between, were all in the scheme for what they could get out of it. The collection of fees for "services rendered" was an integral part of the continuous and operating scheme to defraud, and the mails were used to accomplish their collection. When one of the schemers used the mails for collection of fees in furtherance of the fraudulent scheme, all defendants being partners in crime, were responsible for the mailing. Tincher v. United States, 4 Cir., 11 F.2d 18; Hart v. United States, 5 Cir., 112 F.2d 128. Under Section 215 of the Criminal Code, the mail fraud statute, it is sufficient to charge and prove that there was a scheme to defraud; that the mails were used or caused to be used in furtherance of the scheme; and that the scheme was one which "reasonably contemplated the use of the mails". A careful review of the evidence in this rather lengthy record discloses that the government proved the essential elements of the offenses charged, and that there was no fatal variance between the charges and the proof. Spivey v. United States, 5 Cir., 109 F.2d 181; Corbett v. United States, 8 Cir., 89 F.2d 124; Guardalibini v. United States, 5 Cir., 128 F.2d 984; United States v. Lowe, 7 Cir., 115 F. 2d 596; Hart v. United States, supra. Steiner attacks the sufficiency of the evidence to show the mailings alleged in the first two counts of the indictment, and further alleges that for purposes of venue there was no proof that the letter in the second count was mailed in New Orleans. The statement forming the basis of the first count was introduced in evidence. It was on the billhead of "Steiner and Stein", and was addressed to Longino & Collins, 3801 Tulane Avenue, New Orleans, La. The witness R. K. Longino produced the letter from his files, and testified that the statement was found with the stamped and postmarked envelope pinned to it. The bill bore date of December 31, 1938, and the envelope bore a postmark dated January 4, 1939. The witness Hugh M. Wilkinson, to whom Steiner had revealed the details of the scheme, and who had discussed a similar statement with Steiner, testified that Steiner had said that when a customer failed to pay the agreed fee, "Stewart himself would mail this bill on the billhead of Steiner and Stein * * *." The collection letter forming the basis of the second count was written to Intertype Corporation, 360 Furman Street, Brooklyn, New York. The letter was typed for Steiner by his secretary; it requested payment of the account "by return mail". The letter bore date of February 12, 1938, and was received in the New York office of Intertype two days later on February 14, 1938. An officer and an employee of Intertype Corporation testified to the manner of handling mail in the New York office, and that this letter was received by Intertype Corporation in due course through the mail. Although circumstantial in character, the proof concerning the mailing of the billhead and letter was sufficient to warrant submission of the question of mailing to the jury, and to establish that the letter to Intertype Corporation was in fact mailed at New Orleans. Cf. Corbett v. United States, 8 Cir., 89 F.2d 124; United States v. Baker, 2 Cir., 50 F.2d 122. No contention is urged concerning the sufficiency of proof of the mailings charged in counts 4, 5 and 6 of the indictment. It is contended that the testimony of the witness Hugh M. Wilkinson should have been excluded as being based on statements made to him by Steiner at a time when the relationship of attorney and client existed, and that, therefore, such statements were privileged and inadmissible. When the objection was made below, the jury was retired and the court proceeded to hear evidence bearing upon the relationship existing between Steiner and Wilkinson at the time the statements were made. The evidence *935 was in sharp conflict: Steiner saying that he consulted Wilkinson as an attorney, and Wilkinson saying that there was no attorney and client relationship. Wilkinson testified that he was a member of the Board of Governors of the Louisiana Bar Association; that Steiner came to him and told him that he was involved in trouble and wanted to resign from the practice of law; and that Steiner revealed the tax reduction scheme in detail. Having heard the testimony of Steiner, Wilkinson, and other witnesses, the trial court found that the relationship of attorney and client had not been shown and that the evidence definitely established that no such relationship existed between Steiner and Wilkinson at any time. Accordingly, Wilkinson was allowed to testify. The fact that one is a lawyer does not disqualify him as a witness, for he, like any other person, may testify to any competent facts except those which came to his knowledge by means of confidential relations with his client. The existence of that relationship is a question of fact to be inquired into by the court preliminary to the admission or rejection of the proffered testimony. Here the preliminary inquiry was properly conducted and there was no error in the court's ruling allowing Wilkinson to testify. Smale v. United States, 7 Cir., 3 F.2d 101; Underhill's Criminal Evidence, 4th Ed., §§ 333, 334, 335; Wharton's Criminal Evidence, 10th Ed., § 497; Wigmore on Evidence, 3rd Ed., Vol. VIII, § 322, pp. 626-7. There is no merit in the contention that the statements made by Steiner to Wilkinson constituted an involuntary confession made as a result of "promises, inducements, and hopes of reward". Wilkinson merely offered to lend his personal influence to secure leniency for Steiner. Wilkinson was not a law enforcement officer. Steiner was not in custody or under arrest, and no force, coercion, or duress was used to procure the statements. The statements were voluntarily made and were admissible in evidence. Furthermore, the court did not abuse its discretion in restricting cross-examination of Wilkinson regarding political matters. Steiner further contends that he was denied the right of public trial in that legal matters with reference to the conduct of the trial were argued by government and defense counsel "in sotto voce at the bench in full view of the jury, but out of hearing of the defendant and the public". At the beginning of the trial the judge announced that the jury would be retired only in the event of extended argument on legal matters, and that other arguments on objections would be made by counsel at the bench. No objection was interposed by counsel to this practice. As the trial progressed numerous brief arguments were had at the bench out of hearing of the jury. Steiner's counsel participated in many of the conferences, and Steiner was always present in the court room when such conferences were held. Neither he nor his counsel complained or made objection at any time to the practice, and we think it clear that he was in no wise prejudiced. Both he and his counsel were satisfied with the procedure at the trial, and the assignment of error and the contention on the point seems to be nothing more than an afterthought by which fair conduct, in which they acquiesced and participated, is sought to be distorted into impropriety and alleged prejudicial error. The assignment is wholly without merit. See Johnson v. United States, 63 S.Ct. 549, 87 L.Ed. ___, decided February 15, 1943. Complaint is made of the fact that the trial judge questioned certain witnesses during the trial. Many of the questions propounded by him were helpful in developing the facts of the case. He showed no partiality in his questioning and did not assume the role of prosecutor, a practice condemned in Adler v. United States, 5 Cir., 182 F. 464; cf. Moore v. United States, 5 Cir., 123 F.2d 207. At times the court's questions were helpful in bringing forth answers altogether favorable to Steiner and his co-defendants. In fact, the questions propounded did much to develop facts which led to exclusion of certain evidence and the consequent abandonment and withdrawal of the third count of the indictment. Moreover, the court was careful to instruct the jury that they were the sole judges of the facts, and that they were not to infer from his questioning that he had views one way or the other concerning the guilt or innocence of the defendants. The questioning of witnesses by the court did not constitute error. Moore v. United States, 5 Cir., 132 F.2d 47; United States v. Lee, 7 Cir., 107 F.2d 522. The evidence made a case for the jury, and the court properly refused to grant the motion for a directed verdict. After a careful review of the record we *936 find no reversible error in the rulings of the court as to the admission or exclusion of evidence, including admission of duly authenticated photostatic copies of income tax returns. In the charge the court fully and fairly stated the law applicable to the case, and with care and prudence cautioned the jury not to be influenced by the fact that the defendants, as they had a constitutional right to do, elected not to take the stand to testify in their own behalf. No reversible error appears and the verdict is supported by the evidence. The judgment is affirmed. HUTCHESON, Circuit Judge (specially concurring). I agree with my associates that the record leaves in no doubt that appellant and his confederates did, as the indictment charges, devise a scheme to defraud, "the State of Louisiana, the City of New Orleans, the Orleans Parish School Board, the Board of Commissioners of the Orleans Levee District, and Agencies of the State of Louisiana and of the City of New Orleans, and the taxpayers of the State of Louisiana and of the City of New Orleans". I agree with them, too, that the evidence supports the finding that the indictment letters were mailed as charged, that it was not error to receive Wilkinson's testimony, that there was no prejudicial error in the complained of conduct of the trial judge, and that if the mails of the United States were used for the furtherance of the scheme, the judgment should be affirmed. Appellant, reads the indictment as not including within those to be defrauded by the scheme the taxpayers to whom the bills were sent. He argues that under the rule applied, in Stapp v. United States, 5 Cir., 120 F.2d 898, and Spillers v. United States, 5 Cir., 47 F.2d 893, to reverse, and in Hart v. United States, 5 Cir., 112 F.2d 128, to affirm, a conviction, the bills mailed to the clients after the reductions had been secured were not mailed in furtherance of the scheme because, a scheme to defraud the taxing agencies alone, it had already been consummated. I cannot agree with this reading of the indictment. I think it clear that "the taxpayers of the State of Louisiana and of the City of New Orleans", alleged in the indictment as victims of the scheme, were the taxpayer clients, victimized by paying for fraudulent services which they had been led to believe were to be honest and faithful services. A reading of the indictment on page 5 of the record leaves this in no doubt. It is there alleged that the "said defendants * * * would pretend and represent that they were engaged in the legitimate business of procuring and obtaining for taxpayers reductions in their tax assessments on real and personal property on the official tax record * * * which said assessments the said defendants * * * would pretend, represent and claim to the said taxpayers were erroneous, excessive and improper; that they would approach and solicit taxpayers to whom they would represent, pretend and claim that they would appear before the Louisiana Tax Commission as the authorized representatives of said taxpayers for the purpose of establishing and obtaining fair assessments on the real and personal property of said taxpayers, * * * that it was a part of said scheme and artifice to defraud, that the defendants * * * would pretend to taxpayers whom they would solicit and approach that they would employ only legitimate and honest means in effecting such reductions in assessments; that the defendants * * * would obtain contracts * * * which would provide for the payment to them as compensation for their services in obtaining any such reductions in assessments contingent fees of 50 percent of the amount of taxes saved by such taxpayers by reason of any such reduction." Though, therefore, I cannot agree with the holding of the majority that, taking as correct the view that the scheme, as alleged in the indictment, was one to defraud the taxing agencies alone, and the victims of it were those agencies and the other taxpayers whose assessments had not been reduced, the indictment letters must still be held to have been sent in furtherance of that scheme, I do agree that the judgment must be affirmed. For the indictment charges a scheme to defraud defendant's clients as well as the public, and the sending of the indictment letters was not only in furtherance of, it was essential to, the scheme to defraud.

839 F.Supp. 1170 (1993) UNITED STATES of America v. Mahlon A. DIZE, Sr. UNITED STATES of America v. Wayne W. DIZE. UNITED STATES of America v. Geoffrey K. FOX. UNITED STATES of America v. Stephen J. GRAFTON. UNITED STATES of America v. Edgar J. ORME, III. UNITED STATES of America v. Larry W. PENN. UNITED STATES of America v. William W. STONE, Sr. Nos. 93-0024K to 93-0027K, 93-0034K, 93-0036K and 93-0041K. United States District Court, D. Maryland. October 12, 1993. Lynne A. Battaglia, U.S. Atty., and Robert Thomas, Asst. U.S. Atty., for D. Maryland, Baltimore, MD, for U.S. Stephen S. Boynton, Vienna, VA, for Edgar J. Orme, III. John R. Sullivan, Salisbury, MD, for Stephen J. Grafton. All other defendants appeared pro se. MEMORANDUM AND ORDER KLEIN, United States Magistrate Judge. On January 20, 1993, defendants Mahlon A. Dize, Sr., Wayne W. Dize, Geoffrey K. Fox, Stephen J. Grafton, Edgar J. Orme, III, Larry W. Penn, and William W. Stone, Sr. *1171 ["defendants"] were hunting migratory birds — Canada geese — on the property known as Jamaica Point Farm ["the farm"] located in Talbot County, Maryland. The hunt was terminated by officials of the U.S. Fish and Wildlife Service ["USFWS"]. The defendants, and others,[1] were charged with various violations of the Migratory Bird Treaty Act ["MBTA"], 16 U.S.C. §§ 703-711. Specifically, all defendants were charged with taking or attempting to take migratory waterfowl with the aid of bait. See 50 CFR § 20.21(i). Defendants Grafton and Orme were also charged with aiding and abetting the taking or attempted taking of migratory waterfowl with the aid of bait. Id. Defendant Orme was additionally charged with taking or attempting to take migratory birds while possessing lead shot. See 50 CFR § 20.21(j). All defendants pled "Not Guilty," and waived their right to a trial, judgment and sentencing before a district judge. A bench trial on all charges was conducted before the undersigned on July 22-23, 1993. Defendants Grafton and Orme were represented by counsel. All other defendants waived their right to counsel. After the presentation of evidence and closing arguments by counsel and the pro se defendants, this Court held the matter sub curia. This Memorandum and Order constitutes the Court's findings of fact and conclusions of law. FACTS 1958-1992 There is really no great dispute among the parties concerning the activities on Jamaica Point Farm[2] for a number of years leading up to the fall of 1992. The approximately 400 acre farm was purchased by Mackall O. Owings ["Os" or "Owings"] in 1958.[3] During the ensuing years Os made numerous improvements to the real estate to induce migratory waterfowl to seek refuge on the property. Early on he began feeding Canada geese in an area surrounding his home and the adjoining Manor House. Owings notes in his book, which was written in 1990: There is no question that we see the same Canada geese year after year. Years ago, when we were cultivating this concentration, they would arrive in the fall and sit in the river or on the shore or go into the field, but it would be several weeks before they would venture onto our lawn. As years passed, they would come onto the lawn soon after they arrived. Def. Exh. 3 at 51. I am sure that the same geese come onto the lawn every day. They can be identified by their yellow neck bands. We read the numbers on the bands and report them to the Department of the Interior in Washington, who advises us when and where the geese were banded. The recorded numbers provide a constant check on our returning visitors. Id. at 52. Os Owings described his activities with regard to enticing migratory waterfowl to his property as a "sanctuary feeding program." He was also quick to admit that the *1172 birds on his property were hunted during the respective seasons. That Owings was successful in his quest to attract Canada geese to his farm was attested to by several witnesses. George W. Lacey, a special agent/pilot with USFWS testified that his family lived on Jamaica Point Farm in the 1950s before Owings purchased it. He stated that since 1984 he has noticed Canada geese resting in the "feed area" around Owings' home and the Manor House. Over the last four years the concentration of Canada geese on the farm has gotten greater according to Lacey. He has surveilled the property on approximately five occasions over the last five years. According to George N. Ball, Jr., a law enforcement officer with the Maryland Department of Natural Resources ["DNR"], over the past few years there has been a large number of Canada geese on Owings' farm as opposed to other farms in the area. The largest concentration of birds has been in the vicinity of the Owings residence and in the ponds along Jamaica Point Road. Burton E. Wheedleton, a retired DNR officer who is familiar with the farm, also indicated that the farm always had a large concentration of Canada geese when compared to the surrounding farms. Indeed, when Wheedleton was asked by his superiors in 1975 for a recommendation of a place where the department could locate and band large numbers of Canada geese, his recommendation was Jamaica Point Farm. In his book, Owings states: "We planted crops for geese and fed corn regularly from the day geese first arrived in October until the last ones left in April." Gov't Exh. No. 9 at 190 (emphasis supplied). This evidence of past feeding of Canada geese on the farm was corroborated by the testimony of several witnesses. Officer Ball was on the farm in December 1989 and watched Os and others spread several five gallon buckets of corn around his house. According to Ball, the geese consumed all the corn while he was standing there. Lawrence E. Albright, who currently lives in the Manor house, is familiar with the placement of corn on the farm. He testified that corn was "always" put on the Owings' lawn or off the dock which adjoined their residence. In the beginning, it was only buckets of corn, but for the past several years Os started using a spreader. The grain was put out almost every day. Os made the decision as to when and where to spread the feed. Albright indicated that he helped Owings put the feed out up until 1992. Defendant Orme testified that he had helped Owings spread grain and, additionally had asked defendant Grafton to help when Os became unable to do it himself. According to Orme about three bushels or 160 pounds of corn were spread every day. There was testimony from several witnesses that over the years Owings was warned on several occasions that he should not be feeding during the various hunting seasons. Agent Lacey said that both Willie Parker and Larry Thurman[4] told Os not to spread corn in the front field where he was putting it. In addition, on at least one occasion, Lacey said Thurman took samples of corn from the water around the Owings' property and charged Os with violation of the MBTA. Burton Wheedleton also testified to a telephone conversation he had with Os in 1987. According to Wheedleton, he told Owings "[i]f you are going to feed during the hunting season that's contrary to federal and state regulations. It's illegal." Wheedleton also testified that he never found any corn during hunting seasons. Testifying contrary to these witnesses was defendant Orme who alleged that federal wardens visited the farm many times from 1962 to 1992. They checked licenses, shotguns, bag limits, etc., and never made any "allusions" about hunting over bait. Apparently there were complaints from those not involved with the farm that the farm was being baited. Lawrence Albright testified that he received complaints of baiting during the second year that the spreader was used to disperse the corn. USFWS Agent Frank T. Kuncir testified that he had received complaints about the farm and possible baiting as early as 1988. Air and ground surveillance at that time showed large concentrations of geese on "the point itself" — i.e., the area around the Owings' residence. *1173 In 1987, Jamaica Point Farm became one of the first properties, if not the first, to participate in the Sanctuary Program under the auspices of the Easton Waterfowl Festival. According to Lawrence Albright, who was the chairman of the sanctuary program at that time, the purpose of the program is to provide safe areas for geese in the winter. The raison d'etre of the program was that the goose population was dropping, habitat was being depleted, and geese were having difficulty finding safe resting areas in the winter. In return for providing a safe sanctuary, the landowner/farmer is paid to leave $1,000.00 worth of crops standing in the fields as food for the geese. It is not part of the program that the geese otherwise be fed by the landowner/farmer. A copy of the contract for the sanctuary program at the farm for the 1991-92 season was placed in evidence as Gov't Exh. No. 11. Mr. Albright emphasized that the program "is not a feeding or hunting program. It is a sanctuary program." The program is managed by the Chesapeake Wildlife Heritage ["CWH"]. John E. Gerber, III, a biologist with CWH, stated that the intent of the program is to provide a grazing area that is a safe haven for birds. It is not the program's intent that the landowner/farmer spread large quantities of loose corn. Mr. Albright, because of the complaints about baiting on the farm decided to "pull the farm out of the sanctuary program" in the summer of 1992. He personally informed Owings of his decision. After that conversation, communication broke down between Albright and Owings. Albright went so far as to ask Owings' son to request that his father stop distributing grain. Owings declined to do so. FALL 1992 — JANUARY 1993 Frank Kuncir testified that he began surveilling the property in October of 1992 by routinely driving through the farm on public roads. On those occasions he noted large concentrations of geese near the ponds and in the fields. On November 10th, before sunrise, he went onto the farm where he saw approximately 200 geese on the pond adjacent to the hunting blinds. According to the witness, there were approximately 11,000 geese on the farm. He indicated that he walked to a point within forty yards of the Owings residence and did not disturb any geese. Kuncir returned to the farm shortly after sunrise on January 15, 1993, and noticed several hunters in a blind among cedar trees. On January 16th and 17th the farm was surveilled by Officer Lacey. On January 20th, Kuncir returned to the farm with several other agents. He noted that a large flock of geese approached from the north and landed out of his sight in the grassy area around the Owings' residence. Shortly thereafter, a large number of vehicles proceeded towards the barn next to the Manor House. Kuncir heard a tractor start and then saw the tractor pulling a cart with hunters and their gear in it. All hunters went into pits or blinds and hunted for approximately two-and-a-half hours. A map of the farm taken from the Talbot County land records was submitted as Gov't Exh. No. 1. Kuncir marked an "A" on that exhibit where the corn was spread and a "B" where hunters were located in several blinds.[5] At approximately 9:34 a.m. Kuncir terminated the surveillance and contacted the hunters who were in the blinds around the ponds. In the first pit Kuncir found an outdoor writer and his photographer. In the second pit he found four others who admitted that they had been hunting.[6] Kuncir was told by the hunters that both of these blinds were controlled by defendant Orme. Kuncir also found an empty blind which contained two buckets, several expended shells, a cushion and 12 gauge copper coated lead shot. See Gov't Exh. No. 10(h). The agent could not testify whether or not these shells had been fired on the 20th. Owings, who was not *1174 hunting on this day, apparently came from his residence and was talking to several agents. Kuncir joined the conversation when Os acknowledged that there was an ongoing feeding operation at the farm. About this time, defendant Grafton arrived at the barn driving Orme's pickup truck. Found in the truck were the bucket seen earlier at the blind, numerous unfired and expended shells, and a box of copper coated lead shot which matched the type of shells found in the blind. Orme appeared dressed in street clothes about three hours after the hunt had been terminated. Orme acknowledged that he had been hunting that morning as well as the ongoing feeding operation on the farm. He also stated that he and Grafton had alternated spreading the corn. After the hunters departed, Kuncir walked the lane from the area of the Manor House to the ponds and found corn on both sides of the road.[7] According to Kuncir, the corn along Jamaica Point Road ran for approximately 568 paces and was ninety-eight paces from the closest blind. No other corn was visible along Jamaica Point Road. He acknowledged that Jamaica Point Road is a public road with trees running along both sides. The witness also admitted that this corn "could be consistent with corn falling off a truck," but "if the corn was the result of spillage, I'd expect to find corn all along the road." Kuncir then inspected the Jamaica Point area and found evidence that large numbers of geese had been present. When he finally left the farm, Agent Kuncir went to defendant Grafton's place of business in Easton, Maryland. Grafton acknowledged that he had had a phone conversation with Orme that morning. Grafton also admitted that he had spread corn on both January 10th and 17th "to hold the birds on the farm." According to Grafton, 240 pounds of corn were spread each day. When told about the corn along Jamaica Point Road, Grafton indicated that it must have been as the result of grain delivery to the farm. Subsequently, Kuncir obtained the records of Trappe Landing Grain Co., Gov't Exh. No. 8, which indicate that between October 1992 and January 1993, approximately 31,900 pounds of corn were delivered to the farm. The last delivery was on January 18th. Kuncir testified that there was a large pile of corn in the barn on January 20th. George Lacey testified that in early January 1993, he was asked to assist in the surveillance of Jamaica Point Farm. While on the farm on January 16th, he found evidence of hunting, but no corn. On January 17th he observed a large number of Canada geese. At approximately 8:15 a.m. on the 17th a car drove from the Owings' residence to the barn. Lacey heard a tractor proceed from the barn towards the Owings' residence. The witness noticed geese walk away from the Owings' house and toward the tractor. He then saw a reflection of "yellow" being broadcast behind the tractor. The geese then stopped and put their heads down. "Many more geese arrived and it was a feeding frenzy." Lacey took a photograph of someone operating the tractor that morning. See Gov't Exh. No. 10(p). While he was on the premises, Lacey noted that a flock of geese took off from the feeding area, went to the ponds and then returned to the feeding area. Another flock came off of the river, over the ponds, and landed in the "baited" area. On January 18th, Lacey returned to the farm and found no one hunting. The next day, he obtained a search and seizure warrant for the tractor and implements. Lacey returned to the farm on January 20th and noted approximately the same number of birds as he had seen previously. He flushed some geese off of the ponds and they flew directly to the feeding area. Around 7:00 a.m., hunters took up their positions in the blinds. Lacey then focused his attention on the feeding area. At 8:40 a.m. he noted a flight take off. Sounds of calls were heard from the ponds, but the geese flew away. Approximately twenty minutes later, another small flock took off, calls were again heard, shots were fired, four birds fell, and the balance of the flock flew back to the feeding area. Gov't Exh. No. 10(j-1) is a photograph of this flight of geese. At 9:11 a.m. another flock took off and veered to the west. A minute later two birds took off followed by twenty more. All of these geese flew toward the ponds. Two geese were killed and the remainder veered off. At 9:35 a.m. the hunting *1175 was terminated. Lacey later went to the Owings' house and told Owings what had occurred. Os' response was "I don't bait, I feed." He admitted that he fed the geese from September through the time they leave in April. Owings told Lacey that he leased the property to Ned Orme to hunt. Up to January 20th, Orme had paid Os $7,000.00 for the season. Os indicated that Orme and a Steve Springer spread the corn for him. Lacey believes that Owings meant Steve Grafton instead of Steve Springer. Later that same day, Lacey executed a search warrant that he had obtained the day before. The subjects of the search warrant were the tractor and related equipment and the barn area. Gov't Exh. Nos. 10(o), 10(d), and 10(e) are photographs of the corn, spreader, and buckets. At the agents' request, calculations were made of the distances to the ponds and the ditch. These distances, which were calculated to be 930 yards (2,790 feet) and 1,633 yards (4,899 feet) respectively, were not significantly different than the calculations made by defendant Orme's expert surveyor, Michael E. Turner, who found the distances to be 2,795.53 feet and 4,666.29 feet respectively. See Def. Orme Exh. No. 1. It was Lacey's opinion that both of these areas would be considered "baited." George N. Ball, Jr., a DNR agent in charge of Talbot, Caroline and Dorchester Counties, Maryland, testified that he is familiar with Jamaica Point Farm, particularly over the past few years. He has seen a large number of geese on the farm as opposed to other farms in the area. Ball stated that geese are attracted to the adjoining Dell farm because they leave a lot of standing corn. The largest concentrations on the farm are in the area of the Owings' residence and in the ponds along Jamaica Point Road. He noted that Talbot County is a natural area for geese. Ball has received several reports of illegal hunting on the farm and, in December 1989, he went to the farm and saw several five gallon buckets in a jeep. He watched "them" put out the feed and also watched as the geese consumed all of the corn in a short period of time. At that time, Ball did not say anything to Owings. Ball testified that he is "generally familiar" with the term "lure and attraction." He stated that the impact of corn on migratory birds is "significant." "The more you put out, the more birds you hold." In his opinion, there was a fairly good hunting success rate on the farm. Ball stated that migratory waterfowl will establish their own flyways so if repeated feeding is conducted, the birds will establish flyways over those areas. He noted that the geese on the farm came into the feeding area and then went to ponds both on and off the farm. However, most geese stayed on the farm. On January 20th, Ball was in the area of the ponds along Jamaica Point Road. There he met four hunters including defendant Grafton. Ball later stopped defendant Fox coming from the ditch area and wearing hunting apparel. At the area of the ponds, Ball talked with Os who stated that he had "never seen that many geese on the roadway." Grafton claimed that the corn in the road was from the "harvest." The witness then noted that there was no natural corn anywhere on the farm. Ball advised Kuncir that he had found corn along the road and later the two of them picked up several samples. The corn was along each side of the road and stopped at the driveway to the Manor House. He did not consider that the road area was a natural place to bait because there were cedar trees on both sides of the road. However, the placement of the corn along the road was not consistent with corn being delivered to the farm because of its location. Ball did not see defendant Orme when the hunt was terminated. Several of the hunters told him that Orme was in the area of the standing corn by the ponds. Later, the witness followed a pickup truck off the farm. The driver of the truck stopped to make a phone call at a pay phone. He then drove to a restaurant on Route 50 where he met Orme in the parking lot. Both then drove into Easton and parked behind some storage sheds. There Ball stopped Orme and was told that Orme left the hunt early to "go to a job." In Ball's opinion, the entire Jamaica Point Farm would be considered a baited area. Mark J. Komenda, a DNR agent, testified that he was called to the farm on January 20th after the hunt was terminated. He met Lacey on the main road in front of the Manor *1176 House. They then proceeded to the area of the ponds along Jamaica Point Farm. Komenda informed Lacey that he had seen hunters in the ditch area on the western part of the farm. This is the area marked "C" on Gov't Exh. No. 1. There he talked with seven individuals — Stone, Wayne Dize, Mahlon Dize, Penn, and three others. All were dressed in hunting attire and were carrying shotguns. None denied that they were hunting. Two dead geese were seized from this group. The next witness was DNR Agent Joseph Schauber who was present at the farm on January 20th. Before the hunt began, he was in position on the river's edge one half a mile north of Jamaica Point. Small flights of birds were observed in the area. Around 8:30 a.m., approximately 800 geese approached from the northwest. This flock landed in the feeding area. The witness observed smaller groups leaving the feeding area flying toward the ponds. Schauber indicated that he was familiar with the term "lure and attraction" and the effect of corn on waterfowl. In his opinion, such feeding can control the movements of birds and hold them in a specific area. After the hunt, the witness went with Ball to locate defendant Orme. On January 5th and 16th, the farm was surveilled by DNR Agent Darren Moore. Each day he was present for twelve to fourteen hours and was located approximately 300 yards from the Owings residence. He observed the flight patterns of the geese and noted that they came from all directions with their main focal point being the feeding area. The geese would then fly from the feeding area toward the ponds along Jamaica Point Road. He did not observe any standing corn but did see stubble. Moore stated that there were "high concentrations of geese in the area." John E. Gerber, III, who as noted above is a biologist with CWH, testified that he is familiar with patterns of Canada geese in the area. He stated that his job includes building wildlife habitats. Gerber noted that when birds are under the influence of bagged feed, large numbers concentrate in an area where they would otherwise disperse more widely. Geese become addicted to habitual placement of large amounts of feed. The birds are "lazy." They eat the feed and then go to a fresh water pond to graze. When geese are fed "hot" food like corn they like fresh water. The more grain that is fed, the more birds that are likely to be drawn to a particular site. Initially, Gerber stated that "lure and attraction" meant that the spreading of grain would attract birds to an area they would not otherwise use. He later clarified this by saying that geese would use the area in greater numbers and use it more frequently. Such feeding would influence local flocks of birds. In Gerber's opinion, the entire farm is in jeopardy if the farm is baited because all of it is within the zone of influence of the feeding area. He did admit that some geese would use the farm even if no feeding were taking place. However, the farm would not be used by such large numbers of geese. Lawrence E. Albright testified that he has hunted on the farm for about seven years and is familiar with the placement of the corn on the farm. Corn has always been put on the Owings' lawn and off the dock. In the beginning, corn was spread daily out of five gallon buckets, but in the last several years it has been spread with a tractor using a spreader. While Albright helped cast the grain until several years ago, the corn is now put out by Orme and Grafton. He indicated that he never felt that such feeding was illegal while he was spreading the corn. Burton E. Wheedleton, a retired DNR agent, testified that in his opinion, the more geese are fed the more birds they will be attracted. He also noted that Canada geese become "imprinted" in an area when they are fed regularly. Defendants presented the testimony of Michael E. Turner, a registered professional surveyor, who, as noted above, calculated the distances from the feeding area to the various hunting blinds. His calculations are noted on Def. Orme Exh. No. 1. Defendant Edgar J. Orme, III, testified that he first became acquainted with Owings in 1962 and that he started hunting on the farm as a guest about twenty-five years ago. *1177 According to Orme, Os added three fresh water ponds and the pond on the point to property in his early years of ownership. Owings "always" left standing corn in the field. "He did everything he could to encourage wildfowl to come to Jamaica Point Farm through the use of crop rotation, etc." Orme paid an annual fee to hunt the farm. In October 1992, Os asked the witness to assist him in spreading the feed. Orme talked to Grafton who agreed to help Owings in return for the right to hunt the farm. The frequency and placement of the corn was controlled by Os. This defendant indicated that the feeding was performed from October 1992 to April 15, 1993. The corn was delivered to the farm in a one ton open bed truck. Prior to the hunt, Orme last spread the corn on January 1st. The last delivery before the hunt in question was on January 18, 1993. Orme admitted that he knows that "geese like corn." On January 20th, Orme, Wallace, Hambleton, Grafton, Bugbee, Chambers, Little and Hornberger were hunting at the ponds. Stone, Fox, the two Dize brothers, Penn, and Floyd were in the ditch in the back field. A total of nineteen hunters were present. Ten geese were killed — eight at the ponds and two in the back field. Orme marked his hunting blind on the morning in question as "C" on Def. Orme Exh. No. 1. This position placed him near the ponds on Jamaica Point Road. He claimed that no one at this blind ever fired a shot and expressed surprise that any expended shells were found in that area. Sometime between the start of the hunt and its termination, Orme stated that he left the farm, went home and changed into business clothes. Later he was phoned by "someone" whom he later met at a restaurant in Easton. The two of them then met defendant Stone. Orme testified that he was not the president of a hunting club he just collected the money and paid Os. He also paid for fertilizer and "some standing corn." Later in his testimony, Orme indicated that he "only collected monies from members of `his club.'" According to the witness, "club members" would call him to make arrangements for a hunt. On January 20th, the Dize brothers and Fox were guests of other club members, Penn was a guest of Orme's, and Stone was a member of the club. Although he testified that he never asked any "wardens" if it was all right to hunt when corn was placed on the farm, Orme stated that he "felt" that he had "official" permission to hunt while the feeding program was in process. Additionally, it was defendant Orme's opinion that "we were far enough removed from the corn to be out of the zone of influence." The third witness for the defense was George Ray Arnett, a consultant, who was Director of the California Fish and Game Department from 1968 to 1975. Mr. Arnett was also an Assistant Secretary of the Interior under President Reagan from 1981 to 1986. An avid hunter who has hunted throughout the world and is closely connected with numerous organizations, Mr. Arnett stated that he has hunted the farm as many as fifteen times. He always asked if there was any bait present. The witness admitted that he "knew what [Owings] did down by the ponds." In his opinion, Arnett felt that there was no violation of the hunting regulations on Jamaica Point Farm. Charles S. Conner, a writer, publisher and hunter from Memphis, Tennessee, testified that he has written "extensively" on the issue of baiting especially along the Atlantic flyways. Mr. Conner has been used as a "resource" for the USFWS over the past fifteen years. He has hunted the farm "six or seven times with a gun and twice that with a camera." While he was aware of the "feeding program," Conner had no concerns because "he had no reason to believe that the birds would be lured to the hunting sites." In his opinion the "zone of influence" did not include the blinds on Jamaica Point Farm. The final witness in this case was defendant Mahlon Dize who testified that he was a guest in a blind in the northwest corner of the farm. He denied having anything to do with the feeding or the baiting. THE ISSUES From the government's perspective the only issue in this case is whether or not Jamaica Point Farm was a "baited area." A sub-issue is whether or not the blinds on the *1178 farm were within the "zone of influence" of the bait. Of course, defendants deny that the farm is a baited area. Further, they claim that even if it is determined to be a "baited area," the blinds used on January 20th were outside the "zone of influence." Other defenses raised include, "somebody else did the baiting, therefore these defendants are `not guilty'"; "entrapment by estoppel"; "prosecution of these defendants would be `unfair'"; and the hunters had "every reason to believe that the program was within the law."[8] To prove a case against all the defendants for taking or attempting to take migratory birds by the aid of bait or over a baited area, the government must prove beyond a reasonable doubt (1) that the farm was a "baited area" within the meaning of 50 CFR § 20.21(i); (2) that the defendants took or attempted to take migratory birds over the baited area; and (3) that the birds involved were migratory birds. All of the defendants, with the exception of defendant Orme, were found in the vicinity of hunting blinds and none denied that they were in fact hunting on January 20th. Thus, the second element is admitted by all defendants. While Orme was not found at the scene, he did admit in his testimony that he had been hunting on the farm the morning of January 20th. Additionally, as none of the defendants pressed the issue of whether or not geese are "migratory" within the meaning of either the statute or the regulations, they have basically conceded this element — as indeed they must. Thus, the only real element in contention under these charges is whether or not the farm was a "baited area." To convict defendants Orme and Grafton of aiding and abetting, the government must again prove beyond a reasonable doubt that: (1) the farm was a "baited area;" and (2) that these two defendants aided and abetted the other defendants in the taking or attempted taking of migratory birds either by the aid of bait or over a baited area. Finally, for defendant Orme to be convicted of the lead shot charge, the government must prove beyond a reasonable doubt that while taking or attempting to take migratory birds Orme had such shot in his possession. See 50 CFR § 20.21(j). THE LAW The Migratory Bird Treaty Act ["the Act"], 16 U.S.C. §§ 703-711, provides in § 703: ... it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill ... any migratory bird ... The Secretary of the Interior is authorized to promulgate regulations under the Act. Pursuant to that authority the Secretary has issued 50 CFR § 20.21, the primary regulation at issue here. That regulation provides in part: Migratory birds on which open seasons are prescribed in this part may be taken by any method except those prohibited in this section. No persons shall take migratory game birds: . . . . . (i) By the aid of baiting, or on or over any baited area. As used in this paragraph, "baiting" shall mean the placing, exposing, depositing, distributing or scattering of shelled, shucked, or unshucked corn ... so as to constitute for such birds a lure, attraction or enticement to, on, or over any areas where hunters are attempting to take them; and "baited area" means any area where shelled, shucked, or unshucked corn ... or other feed whatsoever capable of luring, attracting, or enticing such birds is directly distributed, or indirectly placed, exposed, deposited, distributed, or scattered; and such area shall remain a baited area for 10 days following complete removal of all such corn ... However, nothing in this paragraph shall prohibit: (1) The taking of all migratory game birds, including waterfowl, on or over standing crops, flooded standing crops (including *1179 aquatics), flooded harvested croplands, grain crops properly shucked on the field where grown, or grains found scattered solely as the result of normal agricultural planting or harvesting; and (2) The taking of all migratory game birds, except waterfowl, on or over any lands where shelled, shucked, or unshucked corn ... or other feed has been distributed or scattered as the result of bona fide agricultural operations or procedures, or as the result of manipulation of a crop or other feed on the land where grown for wildlife management purposes: Provided, That manipulation for wildlife management purposes does not include the distributing or scattering of grain or other feed once it has been removed from or stored on the field where grown[.] (Emphasis added). "BAITED AREA" As noted above, the Secretary's regulations define a "baited area" as: any area where shelled, shucked, or unshucked corn ... or other feed whatsoever capable of luring, attracting, or enticing such birds is directly distributed, or indirectly placed, exposed, deposited, distributed, or scattered.... 50 CFR § 20.21(i).[9] It is clear from this regulation that the feeding of migratory birds is not prohibited per se. Rather the regulation prohibits feeding of migratory birds in a way that lures them to areas where hunters are stationed. Defendants do not seem to dispute that at least a part of the farm — the area around the Owings' residence — would fit the definition of a "baited area" in the regulations. The argument is that the so-called "zone of influence" rule should be applied to the blinds in which they were hunting. "The zone-of-influence rule is apparently not a formal, published rule, but a means of ascertaining or describing in practice the extent of a baited area in a given case." Manning, 787 F.2d at 437. The defense argues that this zone of influence must be calculated with some exactitude and that the distances involved here do not fall within the zone. "It is true that such an area is not subject to exact definition and may expand or contract with changes of wind and weather, but hunters must make many such judgments as these in order to hunt at all." Yandell v. United States, 550 F.Supp. 572, 576 (N.D.Miss.1982), aff'd, 712 F.2d 218 (5th Cir.1983). "The extent of that area `is defined only by the capacity of bait placed anywhere within it to act as an effective lure[.] ... Congress must have intended for the violation to turn on the factual determination that birds are being lured to a hunter's shooting location, no matter how far the bait is from that location[.]'" Manning, 787 F.2d at 437-8 (citing United States v. Chandler, 753 F.2d 360, 363 (4th Cir.1985)) (emphasis added). Applying these guidelines to the facts of this case, it is clear to the Court that all defendants were taking or attempting to take migratory birds (geese) over a baited area. There is ample evidence, as noted above, from agents who watched the flight patterns of geese over the farm for a period of time that the birds approached the "feeding area" from all directions, that after feeding most geese flew to the freshwater ponds along Jamaica Point Road to drink, graze or rest. If they did not go to the ponds, the geese departed in all directions. This modus operandi was confirmed by John E. Gerber, III, a biologist, whose qualifications as an expert were not challenged. Gerber's testimony that the actions of Owings over the years caused the geese to "imprint" on the farm, and that without the so-called "feeding program" the farm would not be used by such large numbers of birds, is likewise, unchallenged and, the Court finds, most believable. As far as the distances from the "feed area" to the blinds are concerned, it is true that they might be deemed "considerable." Two factors mitigate against any finding that the blinds were too far away from the bait to be outside the zone of influence. The first is that the patterns described by the witnesses clearly demonstrate that the "feed area" acted *1180 as a lure and attraction to the geese and without the "feed area" geese would not be attracted to the farm. The geese flew toward the blinds after feeding because of the corn in the "feed area." A second factor seems to have been overlooked by the defense. Corn was found along Jamaica Point Road within ninety-eight (98) paces of the ponds. How the corn got there is not a proper inquiry. Neither is who put it there or who knew it was there. See Chandler, 753 F.2d at 363. Certainly a normal pace can be no more than four feet. If that is the case, there was bait within 400 feet of the ponds along the road. Likewise, the distance to hunting site "A" as shown on Def. Orme's Exh. No 1 is approximately halved. The Court finds beyond a reasonable doubt that all the blinds in use on January 20th were within the zone of influence of either the "feed area" around the Owings' residence or the corn found along Jamaica Point Road. Such a conclusion requires a finding of "guilty" as to the charge of hunting over a baited area against all defendants. AIDING AND ABETTING To convict defendants Orme and Grafton of aiding and abetting, the government must demonstrate beyond a reasonable doubt that each of these defendants "knowingly associated himself with and participated in the criminal venture." Flowers v. Tandy Corp., 773 F.2d 585, 590 (4th Cir.1985) (citing United States v. Winstead, 708 F.2d 925, 927 (4th Cir.1983)). It is not necessary for the government to show that the individual defendants participated in every step of the criminal enterprise; it need only "show participation at some stage accompanied by knowledge of the result and the intent to bring about that result." United States v. Arrington, 719 F.2d 701, 705 (4th Cir.1983) (quoting United States v. Hathaway, 534 F.2d 386, 399 (1st Cir.), cert. denied 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976)), cert. denied 465 U.S. 1028, 104 S.Ct. 1289, 79 L.Ed.2d 691 (1984). Of course, if a defendant is convicted as a principal that defendant can not be convicted as an aider and abetter. As noted above, the facts that the farm was a baited area and that all defendants were indeed hunting over a baited area on January 20th have already been proven. The evidence is also clear that the corn was placed in the "feed area"[10] for the sole purpose of attracting geese; that at least defendant Orme knew the purpose for placing the corn in the "feed area"; and that Orme knew the farm would be hunted during the season. In addition, defendant Orme collected money from the hunters and made "arrangements" for their hunting. This evidence is sufficient for the Court to conclude that Orme is guilty of this offense beyond a reasonable doubt. Defendant Orme testified that he asked defendant Grafton to assist Os in spreading the corn and that he and Grafton were the only individuals spreading the corn during the period in question. Orme last spread corn on January 1, 1993, before the day of the hunt. Agent Lacey testified that he saw an individual spread corn on January 17th, and took a picture of the individual on the tractor pulling the spreader. See Gov't Exh. No. 10(p). The individual in the picture certainly cannot be identified with particularity. However, Orme and Grafton were the only ones spreading the corn during the period leading up to the hunt and, as he testified, Orme last spread the feed on January 1st. A reasonable inference could be drawn that the person spreading the corn as Lacey watched was defendant Grafton. The Court therefore finds that Grafton did indeed aid and abet in the taking, or attempted taking, of migratory birds over a baited area on January 20, 1993 and is guilty of the offense charged.[11] *1181 According to the evidence, nineteen hunters were present in the fields on January 20, 1993. Since neither Orme nor Grafton can be convicted for aiding and abetting themselves, especially when each has already been convicted as a principal Orme and Grafton could only aid and abet eighteen hunters. The question arises as to whether an individual can be convicted of aiding and abetting a fellow aider and abetter. Such a result seems illogical. Therefore, the Court finds defendants Orme and Grafton each guilty of seventeen counts of aiding and abetting. POSSESSION OF LEAD SHOT Only defendant Orme is charged with taking or attempting to take migratory birds while possessing lead shot. While there is evidence from which the Court could find that Orme was in possession of lead shot on January 20th, the evidence does not persuade beyond a reasonable doubt. The evidence is, therefore, insufficient to convict Orme of this charge. CONCLUSION For the reasons stated above, the Court finds defendants Mahlon A. Dize, Wayne W. Dize, Geoffrey K. Fox, Stephen J. Grafton, Edgar J. Orme, III, Larry W. Penn, and William W. Stone, Sr. guilty of taking or attempting to take migratory birds with the aid of bait. Further, the Court finds defendants Stephen J. Grafton and Edgar J. Orme, III each guilty of seventeen counts of aiding and abetting in the taking or attempting taking of migratory birds with the aid of bait. Finally, the Court finds defendant Edgar J. Orme, III, not guilty of the charge of taking or attempting to take migratory birds while possessing lead shot. Sentencing for all defendants is scheduled for the 10th day of December, 1993 at 10:00 a.m. in Courtroom 2E, United States Courthouse, 101 West Lombard Street, Baltimore, Maryland. Counsel for defendants Grafton and Orme will be notified when to have defendants Grafton and Orme report for presentence investigation interviews. The Court does not deem such interviews necessary for the other defendants. NOTES [1] A number of others were also charged with violations of the Migratory Bird Treaty Act. In those cases, the charges were either dismissed or the individuals forfeited collateral. [2] Gov't Exh. No. 2 is an aerial photograph of the farm and the surrounding area. If the photograph is viewed with the notarial seal in the upper left corner of the photograph, Jamaica Point Farm is located in the lower right quadrant. Jamaica Point Road is the tree-lined road running roughly parallel to the right side of the photograph. It meets with Schoolhouse Road which is also tree-lined, runs roughly parallel to the bottom of the photograph, and is perpendicular to Jamaica Point Road. The Manor House is located at the juncture of the two roads. Running from the road juncture towards the bottom right corner of the exhibit is a tree-lined drive leading to the Owings' residence. Straddling the middle of Jamaica Point Road are three ponds. Another somewhat elongated pond lies between the Owings' residence and the river. [3] Os Owings was originally a defendant in this case. His death occurred before trial and the case against him was dismissed. However, his presence was felt throughout the trial. Constant references were made to him by various witnesses and portions of a book written by him, entitled "The Wizard Is Os", were submitted into evidence without objection by both the government and defendant Orme. See Gov't Exh. No. 9 and Def. Exh. No. 3. References from the book were corroborated by testimony of various witnesses. [4] Both Parker and Thurman are former USFWS agents who retired some years ago. [5] The "C" on the map marks the area where Mark J. Komenda, a Maryland Natural Resources policeman, found other hunters on January 20th. [6] All of this latter group were among the hunters who forfeited collateral rather than stand trial. Charges were dismissed by the government against the writer and photographer. Some of these individuals are shown in Gov't Exh. No. 10(n). Defendant Orme is shown in Gov't Exh. No. 10(m). Both of these photographs were taken on January 20, 1993 before the hunt was terminated. [7] This area is marked by a red line running from "1" to "2" on Gov't Exh. No. 1. [8] The Court finds that there is no merit to any of the "other defenses" raised by various defendants and will not address them specifically in this Memorandum and Order. [9] The constitutionality of this regulation is not challenged here. Such an attack would be fruitless. See United States v. Manning, 787 F.2d 431, 437 (8th Cir.1986); United States v. Jarman, 491 F.2d 764, 766 (4th Cir.1974). [10] There is absolutely no evidence that either Orme or Grafton had anything to do with the placement of corn along Jamaica Point Road on or prior to January 20th. [11] It is somewhat troubling to the Court that the government chose to charge Orme and Grafton with aiding and abetting by way of a single violation notice which parenthetically indicates "(18 counts)." See Local Rule 304(1)(i) which states that "[e]xcept in exceptional circumstances, a violation notice or citation shall charge only one offense." It would certainly seem to be a better practice to use an Information which could set out the charges with greater particularity. No objection was filed by either defendant to the charging document and, even if it had, the government could have dismissed the complaint and begun the proceedings again by filing an Information.

31 So.3d 184 (2010) WRIGHT v. STATE. No. 2D09-5626. District Court of Appeal of Florida, Second District. March 31, 2010. Decision Without Published Opinion Affirmed.

192 F.2d 416 Hans KROCH et al., Appellants,v.J. Howard McGRATH, Attorney General of the United States, and Georgia Neese Clark, Treasurer of the United States, Appellees. No. 10804. United States Court of Appeals District of Columbia Circuit. Argued April 19, 1951. Decided October 5, 1951. Writ of Certiorari Denied January 28, 1952. See 72 S.Ct. 365. Appeal from the United States District Court for the District of Columbia. George Eric Rosden, Washington, D. C., for appellants. George B. Searls and Joseph Laufer, Attorneys, Department of Justice, Washington, D. C., with whom Asst. Atty. Gen. Harold I. Baynton was on the brief, for appellees. George Morris Fay, U. S. Atty., and Joseph M. Howard, Asst. U. S. Atty., Washington, D. C., also entered appearances for appellees. Before EDGERTON, CLARK, and FAHY, Circuit Judges. PER CURIAM. 1 The judgment of the District Court is affirmed. Pass v. McGrath, 89 U.S.App. D.C. ___, 192 F.2d 415. 2 Affirmed.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-11527 Conference Calendar RODERICK LADELL BONNER, Plaintiff-Appellant, versus CITY OF MANSFIELD, TEXAS; MONTE ROBERTS, Police Officer, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CV-760-A -------------------- August 21, 2002 Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges. PER CURIAM:* Roderick Ladell Bonner, Texas prisoner #1057449, proceeding pro se and in forma pauperis under 42 U.S.C. § 1983, appeals the district court’s order denying his motion for appointment of counsel. In his appellate brief, Bonner recites the factual allegations of his claims and asserts that he should be permitted to take a polygraph test to prove that he is “telling the truth.” * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 01-11527 -2- He does not, however, address the district court’s denial of his motion for the appointment of counsel. Accordingly, Bonner has waived the only issue properly before this court. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)(arguments must be briefed adequately in order to be preserved for appeal). AFFIRMED. 

Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 3-26-2003 USA v. Maswadeh Precedential or Non-Precedential: Non-Precedential Docket 02-2663 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Maswadeh" (2003). 2003 Decisions. Paper 714. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/714 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected].  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 02-2663 UNITED STATES OF AMERICA v. ARAFAT MASWADEH, Appellant APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA D.C. Crim. No. 01-cr-00146-1 District Judge: The Honorable William W. Caldwell Submitted Under Third Circuit LAR 34.1(a) March 7, 2003 Before: ROTH, BARRY, and FUENTES, Circuit Judges (Opinion Filed: March 25, 2003) OPINION BARRY, Circuit Judge On November 26, 2001, after a four-day jury trial, appellant Arafat Maswadeh was convicted of all counts of which he was indicted, including racketeering, 18 U.S.C. § 1952(a)(3), arson, 18 U.S.C. § 844(I), use of fire to commit mail fraud,18 U.S.C. § 844(h), solicitation to commit arson,18 U.S.C. § 373, conspiracy to commit interstate travel in aid of the above crimes, 18 U.S.C. § 371, and four counts of mail fraud, 18 U.S.C. §1341. On May 31, 2002, the District Court sentenced Maswadeh to an aggregate sentence of 360 months imprisonment and five years of supervised release, and ordered that he pay restitution in the amount of $1,355,358. On appeal, Maswadeh argues that the District Court erred in numerous ways at trial and sentencing, including: (1) not postponing the trial in the wake of the tragic events of September 11, 2001; (2) denying his motion for an order requiring the government to produce Giglio or impeachment material more than one week in advance of trial; (3) denying his motion for judgment of acquittal based on the insufficiency of evidence; (4) denying his request to allow a particular exhibit to go to the jury room unredacted; (5) giving him a one-level upward sentence adjustment for being an organizer or leader; (6) assessing one criminal history point for a sentence of six-months imprisonment upon a finding of criminal contempt for non-payment of child support; and (7) departing upward from the otherwise applicable guideline range by eight offense levels based on the effect of his arson on the community, its economy, and the victims. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and will affirm. I. As we write primarily for the parties, we recount only those facts necessary to our 2 decision. This prosecution arose from a fire that decimated half of an entire city block in downtown Carlisle, Pennsylvania in the early morning hours of December 18, 1999. Investigators determined that the fire, which destroyed or damaged seven businesses and sixteen residential apartments leaving 55 people homeless, originated in the New York Deli, on the ground floor of 48 West High Street, a deli owned by Maswadeh. They also concluded, after finding two red gasoline containers just inside the back door of the deli, that the cause of the fire was arson. Maswadeh, a Palestinian Arab and naturalized United States citizen, was implicated in the arson when some of his co-conspirators, who were under investigation for dealing drugs out of an apartment above the deli, told federal agents that Maswadeh had wanted the deli burned in order to collect the insurance money. After Maswadeh was indicted for the arson but prior to trial, the District Court held a hearing on defense counsel’s motions to withdraw as counsel and to revoke the order of pretrial detention. Maswadeh stated that he had changed his mind and was satisfied with his present counsel. Defense counsel then informed the Court that he had recommended to Maswadeh that the trial be postponed to avoid any potential jury bias against Maswadeh because of his Arab ethnicity or Muslim religion due to the events of September 11, 2001. Maswadeh, however, expressly told the Court that he did not want to postpone the trial. The Court observed that it would be willing to do so if Maswadeh should change his mind before trial. The Court declined to revoke its prior order detaining Maswadeh pending trial. As part of a later “omnibus” pre-trial motion, Maswadeh moved for an order requiring the government to provide for early disclosure of impeachment material to the defense. The 3 Court ordered that the government deliver that material one week before trial, in keeping with the regular practice of the Court. At trial, the primary evidence against Maswadeh was the testimony of his three co- conspirators: Keith Walker, Alonzo “Pooh” Thornton, and Eric “Joe” Anilus. Thornton, who lived in New York City but dealt drugs in Carlisle through Anilus and others, testified that in September of 1999, Maswadeh offered to pay him $20,000 to set fire to the New York Deli while he was out of the country in Israel. Although Thornton did not follow through with the fire while Maswadeh was in Israel, he ultimately enlisted Keith Walker, a drug-addict who also lived in New York City, to set fire to the deli for $1,000. Walker, the only other defendant indicted for the arson (Thornton and Anilus having pled guilty only to drug charges), testified that Thornton took him to Carlisle by bus on September 17, 1999. He and Thornton were met by Anilus, who took them to the apartment over the deli at 48 West High Street, where Thornton had previously stashed two containers of gasoline. Walker waited in the apartment until approximately 3:00 a.m. when he went to the back door of the New York Deli, pried off some wood panels using a crowbar that Anilus had given him, and set the fire. He returned to New York by bus the next morning. Anilus corroborated Thornton and Walker’s testimony at trial. Anilus testified that he was present at two different times when he heard Thornton and Maswadeh discussing the fire, that he went to Maswadeh’s house the day before the fire to obtain the crowbar, and that he showed Walker where the back door of the New York Deli was and paid Walker $600 cash given to him by Thornton. 4  Two other witnesses called by the government included Nadeem Khan, who believed that he had purchased the New York Deli from Maswadeh and was operating the deli for several weeks before the fire, and Merle “Gene” Miller, the insurance broker who had issued the insurance policy on the New York Deli. Khan testified that he had purchased the deli the month before the fire, and believed that Maswadeh had transferred the insurance to his name. Miller testified that, in August of 1999, at the request of Khan and Maswadeh, he had drawn up the necessary papers to transfer insurance coverage to Khan’s name, but in late August, Maswadeh told him that the sale had fallen through and that the insurance should remain in Maswadeh’s name. Defense counsel cross-examined Miller about a memorandum he wrote after the fire to the State Auto Insurance Companies, the issuer of the policy, which noted, among other things, that Khan had put in an immediate claim after the fire and seemed very upset, while Maswadeh did not contact Miller for two days after the fire, and did not seem very concerned. The memorandum was admitted as a defense exhibit. At the close of trial, the prosecution successfully objected to Miller’s memorandum going into the jury room unredacted because only a small portion of the memorandum had been discussed in trial testimony. Although the Court expressed a willingness to allow a redacted version to go to the jury, no such version of the exhibit was ever submitted to the Court by the parties or sent to the jury. Maswadeh’s presentence report calculated an offense level of 26 pursuant to section 2K1.4 of the Sentencing Guidelines because of Maswadeh’s knowing creation of a 5 substantial risk of death or serious bodily harm with a two level enhancement under section 3B1.1(c) due to Maswadeh’s status as the organizer and manager of the arson. The presentence report also determined that Maswadeh had four criminal history points, resulting in a criminal history category of III. One of the criminal history points was based on Maswadeh’s six-month sentence of imprisonment for contempt of court based on his failure to pay child support, contempt purged two weeks later when Maswadeh paid the requisite support. The resulting guideline range was 78 to 97 months for all counts other than count five, which alleged a violation of 18 U.S.C. § 844(h) with a statutory mandatory minimum of ten years imprisonment to run consecutively with any other sentence, for a total potential guideline sentence of 198 to 217 months. At sentencing on May 31, 2002, the District Court heard testimony from two government witnesses: the mayor of Carlisle testified concerning the damage that the fire had done to the economy of Carlisle and efforts to revitalize the downtown area, and a resident of one of the burned apartments testified concerning the emotional difficulties her children had experienced in the two years since the fire. After hearing the arguments of counsel, the Court added a two-level enhancement for obstruction of justice, finding that Maswadeh had committed perjury when he testified at trial, and also departed upward eight levels, from an offense level of 28 to an offense level of 36. The Court articulated four grounds for the eight-level departure, adding two levels for each: (1) the danger posed to the public was in substantially in excess of that involved in an ordinary arson; (2) the negative effect the fire had upon the revitalization of historic downtown Carlisle; (3) the 6 negative effect the fire had on eight downtown businesses resulting in a substantial loss of property, jobs and tax revenue; and (4) the psychological and emotional trauma suffered by the 55 residents awakened by the fire in the middle of the night and rendered homeless. After making these adjustments, the District Court sentenced Maswadeh to 360 months imprisonment. II. As an initial matter, all of the arguments Maswadeh advances on appeal other than those dealing with his sentence are patently without merit. We discern no abuse of discretion in the District Court’s decision to proceed with trial in November of 2001 where Maswadeh himself informed the Court that he would rather not postpone the trial despite the Court’s willingness to do so, and where his counsel never moved for a continuance. Similarly, and wholly apart from the reasons why there should not be a rule of early disclosure of impeachment material, given that Maswadeh’s counsel concedes that he cannot show that the government’s delivery of impeachment materials one week before trial resulted in any prejudice to the defense case, the District Court’s denial of Maswadeh’s motion for earlier production was not reversible error. Cf. United States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (late discovery warrants reversal only if it prejudiced defendant). Also, it was well within the District Court’s discretion, see United States v. Casoni, 950 F.2d 893, 902 (3d Cir. 1992), to deny Maswadeh’s request to allow Miller’s lengthy but unredacted memorandum to go to the jury, especially where the prosecution expressed willingness to allow the jury to have a properly redacted version of 7 the exhibit. As for the sufficiency of the evidence, although Maswadeh notes some minor inconsistencies in the testimony of his co-conspirators at trial, our independent review of the record shows that the cross-examinations and closing arguments by the defense made the jury well-aware of these inconsistencies as well as any possible interest in giving testimony favorable to the prosecution. Thus, it was well within the jury’s factfinding role, after weighing the evidence as a whole, to credit the co-conspirators’ testimony. Viewing, as we must, the evidence in the light most favorable to the government, see United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997), there was ample evidence to allow a reasonable jury to find Maswadeh guilty beyond a reasonable doubt. We thus move to Maswadeh’s various objections to his admittedly severe 30 year sentence. First, he argues that the District Court improperly accepted the presentence report’s recommendation that he be given a two-level enhancement under section 3B1.1(c) of the Sentencing Guidelines because he was an “organizer, leader, manager, or supervisor” of the arson conspiracy. We find this objection without merit. The arson scheme was conceived by Maswadeh, who recruited accomplices, specified when and how the crime was to be accomplished, and stood to benefit much more (retaining $150,000 of the $200,000 in anticipated insurance proceeds) than the other co-conspirators. According to both the commentary to section 3B1.1 and this Court’s precedent, these actions clearly clothe Maswadeh as the leader and organizer of the crime for purposes of the enhancement. See U.S.S.G. § 3B1.1 cmt. 4; United States v. Gricco, 277 F.3d 339, 358 (3d Cir. 2002). 8  For his second objection to his sentence, Maswadeh argues that the District Court erred in calculating his criminal history category. On October 5, 2002, the Court of Common Pleas of Cumberland County, Pennsylvania, found Maswadeh in contempt of court for failure to pay child support and sentenced him to six months imprisonment. The sentence was vacated 15 days later when Maswadeh satisfied his support obligations. Maswadeh argues that the District Court improperly added one criminal history point for this six-month sentence for civil contempt because it was not a criminal conviction. We disagree. The District Court properly included the contempt sentence pursuant to the plain language of section 4A1.2(c) of the Sentencing Guidelines, which expressly provides for the inclusion of a sentence for an offense that is “similar” to a list of minor offenses, citing both “Contempt of Court” and “Non-Support.” U.S.S.G. § 4A1.2(c). Finally, we address Maswadeh’s contention that the District Court erred in ordering an eight level upward departure from the otherwise applicable offense level of 28. In reviewing the District Court’s decision to depart, we must determine whether the factors relied on by the Court were appropriate and whether the extent of the departure was reasonable. United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir. 1990). In other words, in order for the departure to be justified, Maswadeh’s crime must fall outside the “heartland” of the typical arson, rendering him culpable in ways not adequately taken into account by the Sentencing Guidelines. See Koon v.United States, 518 U.S. 81, 98 (1996); see also 18 U.S.C. § 3553(b) (requiring a sentence in accordance with the guidelines unless “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not 9 adequately taken into consideration by the Sentencing Commission in formulating the guidelines”). We consider in turn each of the four grounds upon which the District Court justified the four two-level upward departures. The first ground for departure articulated by the District Court was that the arson involved a “danger to the public that was present to a degree substantially in excess of that which is ordinarily involved in a case of this type.” While Maswadeh correctly notes that section 2K1.4(a)(1) of the guidelines already provides for an increase in the base offense level if the arson created a risk of death or bodily harm to non-participants or destroyed a dwelling, we cannot conclude that the District Court erred in concluding that the fire caused by Maswadeh caused an entirely different magnitude of risk to innocent parties “substantially in excess” of the risks caused by an ordinary arson. See U.S.S.G. § 5K2.0. Here, the evidence shows that the fire, started in the middle of the night in a building which contained several residential apartments, and adjacent to buildings which contained several more residential apartments, created a significant risk of injury and death to more than fifty innocent individuals including many small children. Accordingly, we will affirm the two- level upward departure in light of this unconscionable risk caused by Maswadeh. The second ground for departure articulated by the District Court was the setback to the revitalization efforts in downtown Carlisle caused by the irreparable damage to its downtown historic district. Section 2K1.4(a)(3) of the guidelines only incorporates consideration of the amount of the loss occasioned by arson if the arson did not create a risk of death to innocents or destroy a dwelling. Section 5K2.5, however, expressly 10 authorizes an upward departure where the guidelines do not adequately account for the value of lost property, particularly when the harm was “knowingly risked” and the extent to which “the harm to property is more serious than other harm . . . risked by the conduct relevant to the offense of conviction.” U.S.S.G. § 5K2.5. Given the devastation that the fire visited upon downtown Carlisle and the dim prospects for redevelopment of the area, the District Court’s two-level departure on this ground was not error. Cf. United States v. Medford, 194 F.3d 419, 425 (3d Cir. 1999) (authorizing upward departure where intangible value of cultural objects stolen from museum was not adequately accounted for by market valuation). The ground articulated by the District Court for the third two-level upward departure was the fire’s destruction of or serious damage to eight downtown businesses, and the resulting loss of jobs, income and tax revenues. We find that this departure correctly takes into account the economic effects on local residents and the local economy not adequately accounted for in the arson guidelines calculation for this extraordinary fire. This recognition of the effect of the fire not only on the historic downtown, but on the financial realities of those who lived and worked there, was an appropriate ground for departure not adequately accounted for by the guidelines. Finally, the fourth ground articulated by the District Court for a two-level upward departure was the psychological and emotional trauma suffered by the individuals awakened in the middle of the night and rendered homeless by the fire. At sentencing, one of the individuals who lived above the New York Deli and barely escaped with her life testified 11 that her three children were in fear and suffered emotional problems in the years since the fire, a fire in which the family lost everything, including pets. The Court found that all of the 55 residents displaced by the fire also suffered similar emotional consequences from the fire and their ensuing homelessness. This emotional devastation to a whole community of displaced residents also distinguishes this case from a typical arson and justified the District Court’s final two-level upward departure. III. For the foregoing reasons, we find no reversible error in the District Court’s rulings before trial, during trial, or at sentencing. Accordingly, we will affirm Maswadeh’s conviction and sentence. /s/ Maryanne Trump Barry Circuit Judge 

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/12/2020 01:08 AM CDT - 409 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. KELLEY Cite as 305 Neb. 409 State of Nebraska, appellee, v. William T. Kelley, appellant. ___ N.W.2d ___ Filed March 27, 2020. No. S-19-227. 1. Judgments: Jurisdiction: Appeal and Error. Determination of a juris- dictional issue which does not involve a factual dispute is a matter of law, which requires an appellate court to reach its conclusions indepen- dent from those of a trial court. 2. Jurisdiction: Appeal and Error. Before reaching the merits of the issues presented for review, it is an appellate court’s duty to determine whether it has jurisdiction to decide them. 3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken. 4. Criminal Law: Judgments: Sentences: Appeal and Error. In a crimi- nal case, the judgment from which the appellant may appeal is the sentence. 5. Double Jeopardy: Pleadings: Final Orders. Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), a plea in bar is a “special proceeding,” and an order overruling a nonfrivolous double jeopardy claim affects a sub- stantial right. 6. Double Jeopardy. The Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. 7. Double Jeopardy: Juries: Evidence: Pleas. In Nebraska, jeopardy attaches (1) in a case tried to a jury, when the jury is impaneled and sworn; (2) when a judge, hearing a case without a jury, begins to hear evidence as to the guilt of the defendant; or (3) at the time the trial court accepts the defendant’s guilty plea. Appeal from the District Court for Gage County: Vicky L. Johnson, Judge. Appeal dismissed.  - 410 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. KELLEY Cite as 305 Neb. 409 Timothy S. Noerrlinger for appellant. Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ. Papik, J. William T. Kelley appeals the denial of his plea in bar, in which he claimed that charges that he committed sexual assaults should be barred because the State agreed not to pros- ecute him for those charges in a prior plea agreement. Kelley’s plea in bar did not, however, present a colorable double jeop- ardy claim. Accordingly, we lack appellate jurisdiction and have no choice but to dismiss the appeal. BACKGROUND In August 2018, Kelley was charged by information with one count of first degree sexual assault and one count of third degree sexual assault of a child. Kelley was alleged to have committed the first degree sexual assault between June 1, 2007, and January 11, 2008. Kelley was alleged to have committed the third degree sexual assault of a child between September 1, 2007, and January 12, 2008. The victim of both crimes was alleged to be T.K. Kelley filed a plea in bar. In the plea in bar, he asserted that in March 2009, he entered guilty pleas to multiple crimi- nal charges in two different criminal cases. Kelley claimed that he pleaded guilty to those charges as part of an agree- ment in which the State agreed not to bring any charges alleging that he sexually assaulted T.K. Kelley contended that by filing criminal charges it had previously agreed not to bring, the State was violating rights guaranteed to him by the Double Jeopardy Clauses of the federal and the Nebraska Constitutions. The district court held a hearing on Kelley’s plea in bar. The evidence introduced at the hearing showed that in 2009,  - 411 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. KELLEY Cite as 305 Neb. 409 after Kelley had been charged with multiple crimes in two different criminal cases, Kelley and the State entered into a written plea agreement. Pursuant to that agreement, Kelley pleaded guilty to various offenses, the court accepted his pleas, and he was found guilty and sentenced accordingly. The written plea agreement did not include a promise by the State not to prosecute Kelley for alleged assaults on T.K. It also included a clause that stated, “[t]he parties to this plea agreement state and acknowledge that this document contains all of the promises, agreements, and understandings between the parties.” Despite the absence of any indication in the written plea agreement that the State was agreeing not to charge Kelley with any charges pertaining to T.K., Kelley claimed that was, in fact, part of the agreement. In support of that argument, Kelley called his attorney in the prior criminal cases as a wit- ness. That attorney testified that an agreement not to prosecute Kelley for alleged assaults on T.K. was part of the agreement he reached with the prosecutor and that Kelley’s counsel had inadvertently omitted it from the written plea agreement. Kelley also testified and asserted that the “only reason” he agreed to the plea agreement was the State’s agreement not to prosecute him for assaults on T.K. The prosecutor in the prior criminal cases, however, testified that an agreement not to prosecute Kelley for alleged assaults on T.K. was not part of the agreement. The district court overruled the plea in bar. Kelley appealed. ASSIGNMENTS OF ERROR Kelley assigns two errors on appeal. He contends that the district court erred by overruling his plea in bar. He also asserts that he received ineffective assistance of counsel. STANDARD OF REVIEW [1] Determination of a jurisdictional issue which does not involve a factual dispute is a matter of law, which requires an appellate court to reach its conclusions independent from those  - 412 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. KELLEY Cite as 305 Neb. 409 of a trial court. Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 (2019). ANALYSIS [2] Before reaching the merits of the issues presented for review, it is our duty to determine whether we have jurisdic- tion to decide them. See Green v. Seiffert, 304 Neb. 212, 933 N.W.2d 590 (2019). As we will explain, after exercising that duty here, we find that we do not have jurisdiction. [3,4] For an appellate court to acquire jurisdiction of an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken. State v. Paulsen, 304 Neb. 21, 932 N.W.2d 849 (2019). In a criminal case, the judgment from which the appellant may appeal is the sentence. Id. Kelley has not been sentenced in this case, so we may only exercise jurisdiction if he has appealed from a final order. Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the four types of final orders which may be reviewed on appeal are (1) an order affecting a substantial right in an action that, in effect, determines the action and prevents a judgment; (2) an order affecting a substantial right made during a special proceeding; (3) an order affecting a substantial right made on summary application in an action after judgment is rendered; and (4) an order denying a motion for summary judgment when such motion is based on the assertion of sovereign immunity or the immunity of a government official. [5] Kelley contends that our precedent recognizes that an order overruling a plea in bar is a final order. We have held that a plea in bar is a “special proceeding,” for purposes of § 25-1902, and that an order overruling a nonfrivolous double jeopardy claim affects a substantial right. See State v. Williams, 278 Neb. 841, 774 N.W.2d 384 (2009). Based on this reasoning, we have reviewed several cases in which the trial court overruled a plea in bar, but the defendant presented a colorable double jeopardy claim. See, e.g., State v. Huff, 279 Neb. 68, 70, 776 N.W.2d 498, 501 (2009) (“[appellant’s] plea in bar raises a colorable double jeopardy claim, and we  - 413 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. KELLEY Cite as 305 Neb. 409 therefore have jurisdiction over this interlocutory appeal”). See, also, State v. Bedolla, 298 Neb. 736, 905 N.W.2d 629 (2018); State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017); Williams, supra. In this case, however, we find that Kelley has not presented such a claim. Kelley does assert that the State could not, con- sistent with the Double Jeopardy Clauses of the federal and Nebraska Constitutions, charge him with sexually assaulting T.K. He claims that is the case because the State agreed in the plea agreement not to do so. He has never, however, explained why the State’s alleged breach of the plea agreement amounts to a violation of double jeopardy. [6] Not only has Kelley not made an argument that the Double Jeopardy Clauses preclude the State from charging him with sexually assaulting T.K., we cannot conceive of a colorable one. And that is true even if we assume that the State agreed in the plea agreement not to bring charges against Kelley alleging that he sexually assaulted T.K. The Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019). Nothing in our record indicates that Kelley has previously been acquitted, convicted, or punished for sexually assaulting T.K. [7] Neither is there anything in our record indicating that Kelley will be twice placed in jeopardy for sexually assault- ing T.K. In Nebraska, jeopardy attaches (1) in a case tried to a jury, when the jury is impaneled and sworn; (2) when a judge, hearing a case without a jury, begins to hear evidence as to the guilt of the defendant; or (3) at the time the trial court accepts the defendant’s guilty plea. Id. As far as our record discloses, prior to the filing of the information in this case, Kelley had not ever been charged with sexually assaulting T.K. and pro- ceedings had certainly not progressed to the point that jeopardy had attached with respect to such charges.  - 414 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. KELLEY Cite as 305 Neb. 409 The fact that Kelley has assigned as error on appeal that he received ineffective assistance of counsel does not change our analysis. Kelley argues that his counsel in the prior criminal cases provided ineffective assistance by failing to include lan- guage in the written plea agreement that the State would not bring charges against Kelley alleging that he sexually assaulted T.K. We question whether a party can assert that counsel in a prior criminal case was ineffective in the context of a plea in bar, but even if that is set to the side and even if we assume that Kelley’s ineffective assistance of counsel allegation has merit, we see no basis to say that rights guaranteed to Kelley by the Double Jeopardy Clauses have been violated. Our decision today should not be read to hold that a defend­ ant has no remedy if the State pursues charges it previously agreed not to bring as part of a plea agreement. Indeed, we have previously noted that “when the State breaches a plea agreement, the defendant generally has the option of either having the agreement specifically enforced or withdrawing his or her plea.” State v. Smith, 295 Neb. 957, 972, 892 N.W.2d 52, 63 (2017). But as Kelley’s counsel acknowledged in oral argu- ment, the only remedy he has pursued is a plea in bar based on an alleged double jeopardy violation. Because Kelley has not asserted a colorable double jeopardy claim, however, we lack jurisdiction to decide anything else and are obligated to dismiss the appeal. CONCLUSION Because Kelley has not presented a colorable double jeop- ardy claim, the order overruling his plea in bar was not a final, appealable order. Accordingly, we dismiss the appeal for lack of jurisdiction. Appeal dismissed. Freudenberg, J., not participating. 

438 F.2d 520 TEVITA TUITUIOHU NAUFAHU, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 26217. United States Court of Appeals, Ninth Circuit. Feb. 11, 1971. Salvatore C. J. Fusco, San Francisco, Cal., for appellant. John N. Mitchell, Atty. Gen., Washington, D.C., Stephen M. Suffin, Atty., I.N.S., James L. Browning, Jr., U.S. Atty., David R. Urdan, Chief Asst. U.S. Atty., San Francisco, Cal., for appellee. Before CHAMBERS, HAMLEY and HUFSTEDLER, Circuit Judges. PER CURIAM: 1 Tevita Tuituiohu Naufahu, a native and citizen of Tonga, seeks review of an order of the Board of Immigration Appeals denying his application for adjustment of status to that of permanent resident under Section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a). 2 Petitioner entered the United States as a nonimmigrant visitor in 1965. Upon expiration of his visa, he was ordered to show cause why he should not be deported. At a deportation hearing in 1967, petitioner conceded deportability but applied for status as a permanent resident. The application was denied because petitioner was ineligible to receive an immigrant visa. Later, after petitioner became eligible for a visa, the proceedings were reopened and this time the petition was denied because a visa was not immediately available to him. Finally, when petitioner met all the preconditions to relief under Section 245(a), the application was again denied for lack of sufficient equities to warrant exercise of administrative discretion under Section 245(a). 3 Petitioner contends on this review that the discretionary denial of his application was based on insufficient evidence. We have examined the record and conclude that the evidence is sufficient. 4 Petitioner also contends that the Board acted arbitrarily when it invoked the discretionary portion of Section 245(a) at a late date in the proceedings. However, prior to that time, petitioner had not met certain of the statutory preconditions to a granting of an application under Section 245(a)-- eligibility to receive an immigrant visa and availability of such a visa. It follows that a determination of whether administrative discretion should be exercised in petitioner's favor was unnecessary at the early stages of the proceedings. Neither the Board nor the Special Inquiry Officer abused their discretion in reserving that determination until it was necessary in order to dispose of the application. 5 Affirmed.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6698 JEREMIAH ROYSTER, Plaintiff - Appellant, v. KEITH WHITENER, Superintendent, Alexander Correctional Institution, Defendant - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Graham C. Mullen, Senior District Judge. (5:09-cv-00034-GCM) Submitted: September 29, 2009 Decided: October 6, 2009 Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Jeremiah Royster, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jeremiah Royster seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Royster has not made the requisite showing. Accordingly, we deny Royster’s motion for a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2 

Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 7-26-2006 Chen v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-4820 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Chen v. Atty Gen USA" (2006). 2006 Decisions. Paper 692. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/692 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected].  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 05-4820 ________________ XUE HUA CHEN; QIAO XIA YANG, Petitioners, v. ATTORNEY GENERAL OF THE UNITED STATES ____________________________________ On Review of a Decision of the Board of Immigration Appeals (Agency Nos. A97 512 265 & A97 512 266) Immigration Judge: Honorable Grace A. Sease _______________________________________ Submitted Under Third Circuit LAR 34.1(a) July 26, 2006 Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES (Filed: July 26, 2006 ) _______________________ OPINION _______________________ PER CURIAM Xue Hua Chen and her daughter Qiao Xia Yang, citizens of China, seek review of an order of the Board of Immigration Appeals (“BIA”), denying their motion to reopen proceedings. For the reasons that follow, we will deny the petition.  Chen and Yang entered the United States without valid documents in January 2004. After being placed in removal proceedings, Chen applied for asylum for having been forcibly sterilized under China’s population control policy.1 She also applied for withholding of removal and relief under the Convention Against Torture. The Immigration Judge (IJ) disbelieved much of Chen’s testimony regarding forced sterilization, found her evidence insufficient to support her claims, denied relief, and ordered her and her daughter removed to China. The BIA agreed with the IJ’s conclusions and dismissed the appeal on September 8, 2004. On December 7, 2004, the petitioners filed a timely motion to reopen proceedings with the BIA. Initially, the BIA noted that some of the petitioners’ arguments alleged error in its prior decision, and stated that to the extent the petitioners sought reconsideration, their motion was untimely.2 The BIA then considered whether the petitioners had presented new evidence warranting reopening proceedings, found none, and denied the motion on September 29, 2005. The petitioners filed a timely petition for review of the BIA’s decision to deny reopening. 1 Yang was a derivative beneficiary of her mother’s applications for relief. 2 A motion to reconsider must be filed within thirty days of the BIA’s prior order. See 8 C.F.R. § 1003.2(b)(2). Here, the petitioners’ motion was filed in December 2004, three months after the BIA’s prior order in September 2004. Contrary to the petitioners’ argument, the BIA committed no legal error in considering whether their motion might be treated as both a motion to reopen and to reconsider. 2  We review the BIA’s denial of a motion to reopen for abuse of discretion with “broad deference” to its decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003); see INS v. Doherty, 502 U.S. 314, 323 (1992) (noting the broad deference due the BIA’s decision). Under this standard, we will reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). The BIA may lawfully deny a motion to reopen if (1) the alien has not established a prima facie case for asylum; (2) the alien has not introduced previously unavailable, material evidence; or (3) in the case of asylum, the alien would not be entitled to relief even if the motion was granted. Caushi v. Attorney General, 436 F.3d 220, 231 (3d Cir. 2006). Here, the BIA concluded that the petitioners presented no previously unavailable evidence. After reviewing the record, we cannot find any abuse of discretion in this regard. Notably, the petitioners arrived in January 2004. Apparently Chen made no effort to obtain medical evidence to support her claim of forced sterilization until October 2004, after the BIA dismissed her appeal. According to the doctor who examined her on November 4, 2004, a “simple and inexpensive” procedure known as a hysterosalpingogram would have supported her claim. (A.R. at 22.) This evidence, which Chen still has not obtained, does not constitute evidence that “was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1); see Caushi, 436 F.3d at 232. 3  In sum, we find no basis to conclude that the BIA abused its discretion in denying the petitioners’ motion to reopen. Accordingly, we will deny their petition for review. 4 

535 F.2d 1242 Rederi A/B Saturnas No. 75-7364 United States Court of Appeals, Second Circuit 3/15/76 1 E.D.N.Y. 2 AFFIRMED* * Oral opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion. An oral opinion or a summary order is not citable as precedent. Local Rule Sec. 0.23

433 F.3d 975 Gail ANDERSON, Plaintiff-Appellant,v.MILWAUKEE COUNTY and Milwaukee Transport Services, Inc., Defendants-Appellees. No. 05-1267. United States Court of Appeals, Seventh Circuit. Argued September 28, 2005. Decided January 11, 2006. Mathew D. Staver (argued), Liberty Counsel, Longwood, FL, for Plaintiff-Appellant. Mary Ellen Poulos (argued), Office of the Corporation Counsel, Mary P. Ninneman (argued), Brian D. Winters, Quarles & Brady, Milwaukee, WI, for Defendants-Appellees. Before FLAUM, Chief Judge, and MANION and EVANS, Circuit Judges. TERENCE T. EVANS, Circuit Judge. 1 In this case, filed pursuant to 42 U.S.C. § 1983, Gail Anderson alleges that Milwaukee County and Milwaukee Transport Services, Inc., the operator of the Milwaukee County bus system, violated her First and Fourteenth Amendment rights by their "tariff," which prohibits the distribution of literature on county buses. 2 Ms. Anderson, a woman in her mid-fifties, lives in Milwaukee. She doesn't drive a car and so is a regular customer on Milwaukee's buses. But she is not, it would appear, your typical bus rider. As anyone who rides buses in urban communities knows, most passengers mind their own business. Most avoid conversation, and many even avoid eye-contact, with other passengers. Not Ms. Anderson. She (here, of course, we take her allegations as true) has a "sincerely held religious belief" and a wish to "share her faith with those sitting next to her on the bus by talking to them and giving them religious literature." She also wants to give her literature to other passengers who pass by her seat on the bus. It's unclear just how long, and how often, she has followed her urge to share her views with other riders. 3 Ms. Anderson's urge to "share her faith" and the bus company's tariff collided on July 8, 2003. On that day, she boarded a bus and took a seat near the front. From there, she attempted to hand out copies of a book, later identified as "The Book of Hope." The book contains stories from the Bible. In the past, she says she has been allowed to hand out the book on the bus, but this time the driver, Rozell Smith, observed what she was doing and asked her to stop. Despite repeated requests, Ms. Anderson did not stop and, in fact, said, "I will not stop." At this point, Smith did not know the book contained religious material. 4 Because Ms. Anderson refused to stop handing out copies of her book, Smith called the transit system dispatch office. He spoke to dispatcher Valdis Salmins. The transcript of the call is as follows: 5 Operator: ... 63 on 63, bus 4442, badge 2637.... OK, I want the company rules on passing out literature on the bus, there. I'm sure we have some kind of regulation, there. Is that possible for people to pass out literature, all different types of literature, over? 6 Dispatch: That's a negative. There is no solicitation of any kind allowed on our buses. (S0) whether it's free or for charge or what-ever.... Nothing is to be given out on the buses. 7 Operator: Well, that's affirmative on that. I thought that was a rule. I got a lady on here who's passing out books on the bus, annoying the passengers, and I told her that she couldn't do that. She told me I couldn't stop her from doing that, over. 8 Dispatch: Ok, I'll send the CPOs to intercept you. If she gets off before you're intercepted, please give us a call back. 9 Operator: Roger. 10 Mr. Salmins called system security. The transcript of that call: 11 CPO: CPO 8, dispatch ... we're in the downtown area, what do you have? 12 Dispatch: EB from 107th and Silver Spring, I have vehicle 4442, 63 on 63, badge 2037. Female on board trying to hand out booklets. I don't know if they're religious or political, or what, but no solicitation allowed on our buses whatsoever. 13 Two security officers intercepted the bus, boarded it, approached Ms. Anderson, and asked whether they could talk to her off the bus. At that point, they did not know what she was handing out. After she was off the bus, Ms. Anderson told the officers about "The Book of Hope." The officers explained to her that the Transit System had a rule against distributing literature on buses. They asked her whether she wanted to board the next bus to continue her trip. Being within six blocks of her home, she decided to walk. 14 The "rule" discussed by the bus driver and the dispatcher is one of the "Passenger Tariffs," under which the bus system operates. The tariffs set out fare information and rules regarding passenger conduct. Tariff 116 says "No person furnished transportation under fares named in this tariff shall be permitted to enter or remain in the system's buses: (a) For purpose of distributing any form of advertising or literature." Based on these facts, the district judge (the Honorable Lynn Adelman) granted the defendants' motion for summary judgment. Ms. Anderson now appeals, claiming that the tariff is impermissibly vague, overbroad, and unreasonable. She also claims it discriminates against religious literature. We review a summary judgment determination as well as any questions of constitutional law under the de novo standard of review. Weinberg v. City of Chicago, 310 F.3d 1029, 1035 (7th Cir.2002). 15 We will turn first to Ms. Anderson's claims that the tariff, on its face, is unconstitutionally vague and overbroad. The tariff is vague, she says, because it is unclear what "distributing" means. She poses several hypothetical examples. For instance, is handing out one book distributing? A bus company witness said no. But, she asks, is handing out one item a day for more than one day considered distribution? How about the businessman who hands a seat mate his business card? Her examples of the outer limits of possible meanings of the word "distributing" fall short of convincing us that the tariff is unconstitutionally vague. Common sense must not be and should not be suspended when judging the constitutionality of a rule or statute. 16 A law is void for vagueness if it fails to give fair warning of what is prohibited, if it fails to provide explicit standards for the persons responsible for enforcement and thus creates a risk of discriminatory enforcement, and if its lack of clarity chills lawful behavior. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). On the other hand, the Court has said that "perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). There are, of course, limits to how precise language can be in the context of a law, ordinance, or, for that matter, a bus system tariff. In United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), the Court remarked that "there are limitations in the English language with respect to being both specific and manageably brief...." Looking at the Civil Service Rules interpreting the then-existing version of the Hatch Act, 5 U.S.C. § 7324(a)(2), the Court said the "ordinary person exercising ordinary common sense" knows perfectly well what they mean. 17 Ms. Anderson's arguments that the tariff is vague are reminiscent of those in Schultz v. Frisby, 877 F.2d 6, 8 (7th Cir.1989), which involved abortion opponents who wished to picket the home of an abortion provider.1 The plaintiffs claimed that an ordinance which outlawed picketing that was "directed at" a particular home was unconstitutionally vague. We set out their concern: 18 Will it be enough to go `round and `round the block? Could the picketers march in front of the five houses on either side of the [providers']? May they stop for one minute, or two, or five, in front of the ... place before moving along? Surely they can't evade the law by standing in front of the... home and occasionally jumping one house on either side. How much longer must the route be? 19 We rejected these concerns in favor of common sense: 20 No matter how clear the ordinance seems, a hundred nice questions may follow in its wake. The Constitution does not require [the town] to answer each of these before it may enforce the law. Incompleteness is a curse of language, as of human imagination. To say that precision is a precondition to enforcement is to say that no ordinance regulating speech may stand—a proposition the Supreme Court has rejected over and again. 21 Id. In our case, we cannot imagine that the tariff would have a chilling effect, for instance, on a bus-riding businessman who wanted to hand his business card to a seat mate. In short, we do not find the ordinance unconstitutionally vague. 22 Neither can the tariff be seen as facially overbroad. The overbreadth doctrine allows a plaintiff to ask that a law be struck down based not on how it affects the plaintiff but on how it might be applied to third parties not before the court. Because that is "strong medicine," the "overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 614-615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Again, in Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003), the Court emphasized that to be overbroad, the law's application to protected speech must be substantial. That simply is not the case here. The tariff is narrowly drawn and applies—as we shall see—in a limited environment. More importantly, Ms. Anderson has not shown that the tariff would significantly affect the rights of individuals not before us in any way differently from the way it affects her. Accordingly, as the Court said in City Council v. Taxpayers for Vincent, 466 U.S. 789, 802, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), "It would therefore be inappropriate in this case to entertain an overbreadth challenge to the ordinance." 23 Ms. Anderson's primary contention is that to the extent the tariff prevents her from sitting on the bus and handing out literature, it is unconstitutional as applied to her. We agree that her activities are a form of speech protected under the First Amendment. Further, the bus is a governmentally controlled forum. But, it is well-settled that the government is not required to permit all forms of speech on all of the property it owns. Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). We use "forum analysis" to determine when the government's interest in limiting the use of its property to its intended purpose outweighs the interests of those wishing to use the property for other purposes, such as First Amendment activities. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Under this approach, on property that has traditionally been available for public expression, regulation of speech is subject to the highest scrutiny. Similarly, the government is bound by the same standard in the "designated public forum"—property the government has opened up for limited or unlimited public expressive activity. Finally, there is the "nonpublic forum"; that is, "[p]ublic property which is not by tradition or designation a forum for public communication...." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). As Ms. Anderson properly concedes, the interior of a city-operated transit vehicle is a nonpublic forum. See Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974). 24 In a nonpublic forum, the government may restrict speech to a greater extent than in a public or designated public forum. Restrictions must be viewpoint-neutral and reasonable. In other words, restrictions need only pass the test of reasonableness so long as they are not an attempt to stifle a viewpoint based on its content. Int'l Soc'y for Krishna Consciousness, Inc. v. Lee at 683, 112 S.Ct. 2701. A restriction does not need to be "the most reasonable or the only reasonable limitation"; it does not need to be narrowly tailored; nor does the governmental interest need to be compelling. Cornelius at 808-809, 105 S.Ct. 3439. In fact, simple common sense is sufficient to uphold a regulation under reasonableness review. United States v. Kokinda, 497 U.S. 720, 734, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). Using this approach, the Court has found reasonable, for instance, a ban on soliciting in an airport terminal, Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, and a restriction on political advertising on public transit. Lehman v. City of Shaker Heights. See also Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir.1998). In Chicago Acorn v. Metropolitan Pier and Exposition Authority, 150 F.3d 695, 704 (7th Cir.1998), we found that leafleting should not be permitted in places where "pedestrian traffic will be obstructed." See also Hawkins v. City and County of Denver, 170 F.3d 1281 (10th Cir.1999). 25 Here, the restriction is clearly reasonable. Bus passengers are a captive audience. While riding on the bus, many passengers have an interest in avoiding unwelcome communications. It is reasonable for the bus company to attempt to ensure their comfort. In Lehman, the Court concluded that a city was entitled to protect unwilling viewers against intrusive advertising on its buses in order to provide rapid, convenient, pleasant, and inexpensive public transportation for them. It is also reasonable to wish to avoid disagreements among passengers which the distribution of literature might inspire. Furthermore, the bus company has an interest in passenger safety. The company expresses concern that a driver could be distracted by literature distribution and that abandoned literature can cause a safety hazard and certainly a littering problem. Given the nature of the forum, a ban on the distribution of literature on buses passes constitutional muster. 26 Finally, Ms. Anderson also seems to claim that the restriction as applied in this case is, in fact, content-based and therefore unconstitutional. She says there is an "unwritten scheme" by which there are exceptions from the total ban on literature distribution—exceptions which arise out of the discretion bus operators have to choose which people they will ask to stop distributing literature. She says that discretionary enforcement of the tariff results in discrimination against religious literature; therefore, the tariff is subject to strict scrutiny analysis. We see no factual basis for this claim. As we said, at the time the driver asked her to stop passing out her book, he had no idea what it was about. Neither did the security officers who took Ms. Anderson off the bus. Furthermore, Ms. Anderson offers no evidence that anyone has been allowed to distribute nonreligious literature on the bus. Her main support for her claim that enforcement is discriminatory is that the bus company has a rack behind the driver's seat which holds copies of bus route schedules and monthly newsletters. She says that if the company can provide that literature, she can pass out her book. We reject this contention out of hand. The comparison between passively providing bus riders with schedules and information about the very system on which they are riding cannot be compared to a passenger distributing literature of any kind. Ms. Anderson's argument on this point rests on thin air. 27 Ms. Anderson has failed in her attack on the tariff, and accordingly we AFFIRM the judgment of the district court. Notes: 1 We take the background facts from a Supreme Court decision in the same case—Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988).

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 96-2275 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus WILLIAM ARTHUR BROWN, Claimant - Appellant, and $11,864 US CURRENCY; $7,800 US CURRENCY, Defendants. Appeal from the United States District Court for the Western Dis- trict of North Carolina, at Charlotte. Robert D. Potter, Senior District Judge. (CA-95-318-3-P) Submitted: May 17, 1997 Decided: May 28, 1997 Before RUSSELL, HALL, and HAMILTON, Circuit Judges. Affirmed by unpublished per curiam opinion. William Arthur Brown, Appellant Pro Se. William A. Brafford, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 PER CURIAM: Appellant appeals the district court's orders granting summary judgment and a judgment of forfeiture of $19,664 in United States currency to the government and denying his motion for reconsidera- tion. We have reviewed the record and the district court's opinions and find no reversible error. Accordingly, we affirm on the reason- ing of the district court. United States v. Brown, No. CA-95-318-3- P (W.D.N.C. Aug. 8, 15, & 30, 1996). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the deci- sional process. AFFIRMED 3 

225 F.3d 71 (1st Cir. 2000) UNITED STATES, APPELLEE,V.CARLOS REYES, DEFENDANT, APPELLANT. No. 99-2270 United States Court of Appeals For the First Circuit Heard August 1, 2000Decided September 7, 2000 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] [David M. Cohen, U.S. Magistrate Judge] Mary A. Davis, by appointment of the Court, with whom Tisdale & Davis, P.A. was on brief, for appellant. F. Mark Terison, Senior Litigation Counsel, with whom Jay P. McCloskey, United States Attorney, was on brief, for appellee. Before Torruella, Chief Judge, Wallace,* Senior Circuit Judge, and Boudin, Circuit Judge. Torruella, Chief Judge. 1 Appellant "Carlos Reyes" was convicted of making a false statement to a government agent, in violation of 18 U.S.C. § 1001(a), after he gave a false name, date of birth, and social security number to a federal law enforcement officer interviewing him for "booking" purposes after his arrest on drug conspiracy charges. Appellant now claims that he was arrested without probable cause and that the officer who booked him violated the familiar warnings requirements established in Miranda v. Arizona, 384 U.S. 436 (1966). We affirm his conviction. I. BACKGROUND 2 The findings of fact proposed by the magistrate judge, and adopted by the district court, accurately reflect the evidence, and we summarize them briefly. A. Investigation and Arrest 3 On April 22, 1999, Special Agent Uri Shafir of the United States Drug Enforcement Administration ("DEA") reported to the scene of a traffic stop near Kennebunk, Maine. A consent search of the stopped vehicle was performed, and 5.75 ounces of cocaine were found behind the vehicle's dashboard. The search also revealed a list of names and phone numbers that were subsequently identified as belonging to known or suspected drug dealers, including Paul Golzbein of 116 Ross Road in Old Orchard Beach, Maine. The driver of the vehicle, Renee Omar Rosa-Santos, was arrested and later released on bail. 4 On April 28, 1999, Special Agent Gerard Lee Hamilton, Jr., of the Maine Drug Enforcement Agency ("MDEA") and another agent were surveilling the property located at 116 Ross Road in Old Orchard Beach when Hamilton saw Golzbein, who he recognized from previous law enforcement contacts, enter the house. Approximately one hour later, Hamilton saw a rented van pull into the driveway of the house. A man closely resembling Rosa-Santos got out of the driver's-side door, reached down to retrieve a dark-colored package from under the front of the vehicle, and then got back into the driver's seat. A few minutes later, the man entered the house. Another man left the house a few minutes later and entered a trailer on the property. The man resembling Rosa-Santos left the house a few minutes thereafter, sat in the van for a few moments, and then also entered the trailer. After as little as thirty seconds, the man resembling Rosa-Santos exited the trailer, sat in the van again for several minutes, and then drove away. 5 Hamilton conducted surveillance of the Ross Road property again on May 7, 1999. On that date, he saw a black extended cab pickup truck pull into and park in the driveway of the house. Three Hispanic-looking men were inside the truck -- a driver and two passengers, one of which was appellant. After a minute or two, a woman known to Hamilton as Golzbein's girlfriend came out of the house and spoke briefly to the driver before going back inside. The driver of the truck got out and went to the door of the house, where he again spoke with the woman. He then returned to the truck and sat inside with the two passengers, looking around the area. Shortly thereafter, Golzbein drove into the driveway and parked next to the truck. The woman came out of the house and met Golzbein by the pickup truck. All five individuals, including appellant, then entered the house. 6 Two or three minutes later, the driver of the truck came out of the house to stand by the truck; he looked around briefly and then reached under the truck about two feet in front of the rear left tire. He withdrew a baseball-sized object and stuffed it down the front of his pants. Another truck entered the driveway, and the woman motioned for the first driver to enter the house while she spoke with the driver of the second truck for a couple of minutes outside. The woman and the second driver then entered the house together. After several minutes, the second driver left the house. 7 About three minutes later, the three men from the first truck exited the house. Appellant and the other passenger got into the cab of the pickup while the driver went to the front of the vehicle and again reached underneath it. The driver then got in the truck and sat for several minutes looking around before driving out of the driveway. 8 Hamilton informed Shafir that the truck was leaving the Ross Road address, and Shafir followed it until it was stopped by local law enforcement officers. Shafir then reached under the front of the vehicle and removed a black bag containing approximately two ounces of cocaine. No other contraband was found in the vehicle or on the truck's occupants, who spoke to each other in Spanish before all being arrested. Appellant was charged with conspiracy to distribute and possess with intent to distribute cocaine, although this charge was later dismissed on the government's motion. B. Booking of Appellant 9 After his arrest, appellant was taken to the local police station in Old Orchard Beach. Walter Smith, an agent of the Immigration and Naturalization Service ("INS") assigned to work with the DEA, interviewed appellant for the purpose of "booking" him, i.e., obtaining the information required by the DEA's standard personal history form for administrative purposes. Because the police station had no separate booking room, the interview was conducted in a detective's office. 10 Before initiating the interview, and having determined that appellant did not speak or understand English, Smith read to the appellant the standard Miranda warning, in Spanish, from the Miranda card that Smith carries at all times and, according to his testimony at the subsequent evidentiary hearing, has used as many as one thousand times to inform detained individuals of their Miranda rights in Spanish. Expert testimony given at the evidentiary hearing later indicated that Smith's pronounced American accent made his reading of the Miranda rights in Spanish difficult to understand. However, at the interview, when asked in Spanish whether he understood the rights read to him by Smith, appellant replied that he did. Smith did not proceed to seek a waiver of appellant's Miranda rights; he testified at the evidentiary hearing that he had no intention of substantively questioning appellant, but intended only to obtain the standard required booking information. Smith also informed appellant at this time that lying about the information he was going to ask him for would be a crime. Smith testified at the evidentiary hearing that he so informed the appellant because he suspected that appellant was not a United States citizen and might be in the United States unlawfully. 11 Smith then proceeded to ask appellant, in Spanish, for the information required on the personal history form. Appellant told Smith that his name was Carlos Reyes, and that he was born in Bayamoon, Puerto Rico on August 27, 1950; he also gave Smith a Social Security number. Smith did not ask appellant any questions other than those required by the standard personal history form -- nothing about the offense for which appellant had been arrested, nothing about criminal activity in general, and nothing about his immigration status other than the routine information specifically required by the personal history form. At the conclusion of the interview, which lasted less than five minutes, Smith photographed and fingerprinted the appellant and returned him to his cell. Smith had no further contact with appellant. C. Lower Court Proceedings 12 Although the drug conspiracy charge against appellant was dropped, appellant was ultimately charged in a one-count indictment of making false statements in violation of 18 U.S.C. § 1001. The indictment alleged that the name, date of birth, and social security number given by appellant were not in fact his. 13 Before trial, appellant moved to suppress his allegedly false statements to Agent Smith. Appellant argued that the statements should be suppressed because they were obtained pursuant to an arrest that lacked probable cause and because they were obtained in violation of Miranda. 14 The magistrate judge conducted an evidentiary hearing on September 13, 1999. Based on the testimony given there, and also on other evidence properly admitted, the magistrate judge concluded and recommended to the district court that the motion to suppress should be denied, because the arrest was supported by probable cause and because the questions asked by Smith were subject to the "booking exception" to Miranda's warning requirement. See United States v. Reyes, Crim. No. 99-45 (D. Maine filed Sept. 16, 1999) (Cohen, M.J.). The magistrate judge's recommendation was adopted by the district court on October 29, 1999. The district court noted that it had made a de novo determination on all matters and concurred with the magistrate's conclusions despite an error by the magistrate concerning the appropriate basis for sustaining the officers' determination of probable cause. See United States v. Reyes, Crim. No. 99-45 (D. Maine filed Oct. 29, 1999) (Hornby, C.J.). 15 A jury convicted the appellant of violating 18 U.S.C. § 1001 on November 9, 1999, and appellant was immediately sentenced to "time served." He now appeals his conviction and the denial of his motion to suppress. II. LAW AND APPLICATION 16 Appellant makes the same arguments before us that he made to the magistrate judge and to the district court. Our review is plenary, see United States v. Meade, 110 F.3d 190, 193 (1st Cir. 1997) (plenary review for probable cause determination); United States v. Shea, 150 F.3d 44, 47 (1st Cir. 1998) (de novo review of district court's application of Miranda), and we have independently examined the record with care. Based on that independent review, we agree with the conclusion of the lower courts and affirm the denial of the motion to suppress and appellant's conviction. 17 A. Appellant's Arrest Was Supported By Probable Cause 18 As the magistrate judge correctly stated in his recommendation, we determine whether an arrest was supported by probable cause using a "totality of the circumstances" standard. See United States v. Torres-Maldonado, 14 F.3d 95, 105 (1st Cir. 1994). Under this standard, the government bears the burden of establishing that, at the time of the arrest, the facts and circumstances known to the arresting officers were sufficient to warrant a reasonable person in believing that the individual had committed or was committing a crime. See id. We note that this does not require the government to present evidence sufficient to convict the individual, but merely enough to warrant a reasonable belief that he was engaging in criminal activity. See id. 19 We agree with the magistrate judge and the district court that the officers who arrested appellant had probable cause to do so. While it is established law that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause," Ybarra v. Illinois, 444 U.S. 85, 91 (1979), the known circumstances tying appellant to the drug conspiracy for which he was arrested were substantially more than a "mere propinquity" to another suspect. Unlike in Ybarra, where the defendant was arrested based solely on his presence in a public place (a tavern), appellant here was seen in a private vehicle and entering and exiting a private residence with known and suspected drug dealers. While this association might not alone give rise to probable cause, the officers were plainly reasonable in considering it, because "[w]e do not think officers in the field are required to divorce themselves from reality or to ignore the fact that 'criminals rarely welcome innocent persons as witnesses to serious crimes and rarely seek to perpetrate felonies before larger-than-necessary audiences.'" United States v. Martnez-Molina, 64 F.3d 719, 729 (1st Cir. 1995). We think that such characterization is particularly appropriate where the criminal activity (in this case, a suspected criminal conspiracy) takes place in the small and private confines of a pickup truck cab or a residential dwelling. In this case, we are persuaded that the officers were reasonable in believing that appellant's presence during and participation in such suspicious activities as the orchestrated entrances into and exits from the house, and the minutes spent in the truck looking around, were nether innocent nor ignorant. The government's evidence is especially compelling given the fact that the driver of the pickup truck stood in front of the vehicle and reached under it, in a way consistent with prior suspected drug activity observed by Hamilton at the Ross Road address, while appellant was sitting in the cab not more than four or five feet away and facing in that direction. Under the totality of the circumstances, therefore, we conclude that the officers had probable cause to arrest him for conspiracy to distribute and possess with intent to distribute cocaine. 20 B. Appellant's Statements Were Not Obtained in Violation of Miranda 21 As the Supreme Court has recently reaffirmed, statements made by a criminal defendant while in police custody are admissible evidence at his subsequent trial only if the defendant was first warned that he has "'the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.'" Dickerson v. United States, 120 S. Ct. 2326, 2331 (2000) (quoting Miranda, 384 U.S. at 479). Once a defendant is informed of these rights, he may of course waive them, see United States v. Palmer, 203 F.3d 55, 60 (1st Cir. 2000), cert. denied, 120 S. Ct. 2756 (2000), but if he does not do so, the police are prohibited from interrogating him and any statements obtained in violation of this rule will be excluded from evidence at trial, see United States v. Ortiz, 177 F.3d 108, 109 (1st Cir. 1999). 22 The United States concedes that Agent Smith did not obtain a Miranda waiver from appellant before interviewing him for the purpose of completing the personal history form, although he did read appellant his Miranda rights. Appellant's contention is that, absent such a waiver, his statements were obtained in violation of Miranda and should have been excluded from evidence at his trial. The government responds, however, that appellant's statements were obtained lawfully because the questions asked by Smith fall within the established "booking exception" to Miranda's warning requirements. See United States v. Doe, 878 F.2d 1546, 1551 (1st Cir. 1989). Appellant concedes, in turn, that the questions may in a generic sense fall within the scope of the booking exception, but argues that his statements were nonetheless unlawfully obtained because the exception does not apply "where the law enforcement officer, in the guise of asking for background information, seeks to elicit information that may incriminate." Id. Although phrased in terms of the officer's intention, the inquiry into whether the booking exception is thus inapplicable is actually an objective one: whether the questions and circumstances were such that the officer should reasonably have expected the question to elicit an incriminating response. See id. 23 Under the circumstances, we conclude that Agent Smith's questions to appellant -- requesting his name, date of birth, and social security number -- fall within the booking exception to Miranda's warning requirement. We think it significant that Smith asked only those questions indicated on the standard DEA booking form, with no reference whatsoever to the offense for which appellant had been arrested. The booking interview was conducted separate from any substantive interrogation, by a different officer and in a separate room at a separate time, just as we suggested in Doe would be typical of legitimate, routine booking interviews. See id. Although the record does reflect that Agent Smith suspected that appellant might not be a United States citizen, Smith explicitly disavowed at the evidentiary hearing any intention to question the appellant beyond what was necessary to complete the personal history form. 24 Furthermore, we think that it would be a rare case indeed in which asking an individual his name, date of birth, and Social Security number would violate Miranda. We can imagine situations, of course, that would present a closer case than this one. For example, asking a person's name might reasonably be expected to elicit an incriminating response if the individual were under arrest for impersonating a law enforcement officer or for some comparable offense focused on identity; likewise, asking an individual's date of birth might be expected to elicit an incriminating response if the individual were in custody on charges of underage drinking; and questions about an individual's Social Security number might be likely to elicit an incriminating response where the person is charged with Social Security fraud. In such scenarios, the requested information is so clearly and directly linked to the suspected offense that we would expect a reasonable officer to foresee that his questions might elicit an incriminating response from the individual being questioned. In contrast, the appellant here was being booked on charges of participating in a criminal drug conspiracy, to which his name, date of birth, and Social Security number bore no direct relevance. 25 We also recognize that individuals under arrest, particularly those who are in fact guilty of some criminal activity, may sometimes feel tempted to lie about even such basic facts as their identities (to which name, date of birth, and social security are all incidental). Law enforcement agents, through their experience, may often be aware of such temptations, and they may even harbor suspicions in some cases that a particular individual is about to lie. However, we cannot ask them to therefore forego all routine procedures and detain an individual without knowing anything about him, not even what to call him in the jail log. In this particular case, the booking officer went so far as to remind the appellant that it would be a crime to give false answers to the booking questions. That warning, together with the Miranda warnings, seem to us sufficient and reasonable precaution on the part of the officer, and hardly indicative of an intent to obtain incriminating statements by sidestepping the requirements of Miranda.1 26 In sum, we agree with the magistrate judge and the district court that Agent Smith's questions to appellant fall squarely within the booking exception to Miranda's warning requirement. III. CONCLUSION 27 For the reasons set forth above, we affirm appellant's conviction and the denial of his motion to suppress evidence. 28 Affirmed. Notes: * Of the Ninth Circuit, sitting by designation. 1 Although our "booking exception" analysis completely disposes of appellant's claim, we also consider it noteworthy that this case does not present the danger of coercion that the Miranda warnings were designed to prevent. See, e.g., Miranda, 384 U.S. at 457, 458. The evidence showed that appellant was comfortable during his booking interview and showed no hesitation in his responses to Agent Smith's questions. Furthermore, the booking interview was conducted in accordance with the procedure that we suggested in Doe would be typical, "where one officer may book a suspect in one room before another questions the suspect at greater length elsewhere." Doe, 878 F.2d at 1551. And the circumstances of appellant's interview certainly stand in sharp contrast to those surrounding the questioning of the defendants in Doe, who were rescued from a sinking vessel on the high seas, chained to the deck of a coast guard vessel, and questioned as to the critical jurisdictional fact of their citizenship before any Miranda warnings were given to them. See id. at 1548, 1550-51.

956 F.2d 264 U.S.v.Lollar NO. 90-2747 United States Court of Appeals,Fifth Circuit. Feb 10, 1992 1 Appeal From: S.D.Tex.; Rehearing of 948 F.2d 1286 2 VACATED.

266 P.3d 45 (2011) 351 Or. 286 STATE of Oregon, Respondent on Review, v. David Lee SWANSON, Petitioner on Review. (CC 071371M; CA A140575; SC S059135). Supreme Court of Oregon. Argued and Submitted September 20, 2011. Decided November 10, 2011. Jedediah Peterson, Deputy Public Defender, Officer of Public Defense Services, Salem, argued the cause for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender. Andrew M. Lavin, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Before, DE MUNIZ, Chief Justice, and DURHAM, BALMER, KISTLER, WALTERS, and LINDER, Justices.[**] LINDER, J. In this case, defendant was charged with reckless driving, which is a misdemeanor.[1] In his ensuing jury trial, defendant asked the trial court to instruct the jury on the elements of careless driving, which is a traffic violation, arguing that it is a lesser-included offense of reckless driving.[2] The trial court declined to give defendant's requested instructions. On appeal, the Court of Appeals affirmed. State v. Swanson, 237 Or.App. 508, 240 P.3d 63 (2010). The Court of Appeals reasoned that violations and crimes are distinctive categories of offenses *46 and, under ORS 136.465, juries are authorized to consider only lesser-included crimes, not lesser-included violations, of a charged crime. Id. at 511, 240 P.3d 63. That understanding of the legislature's intent was reinforced, the court concluded, by substantial procedural differences between violation proceedings and criminal proceedings, including the requirement that violations be "tried to the court sitting without jury." ORS 153.076(1); see Swanson, 237 Or.App. at 513, 240 P.3d 63 (so stating). We allowed defendant's petition for review. As we will explain, we agree that ORS 136.465 does not extend to lesser-included violations and is, instead, limited to lesser-included criminal offenses. We therefore affirm. ORS 136.465 provides: "In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which the defendant is charged in the accusatory instrument or of an attempt to commit such crime." (Emphasis added.) As the italicized text emphasizes, the statute expressly refers to any "crime" the commission of which is necessarily included in the charged crime. The term "crime" is not defined in the statute itself, or in any statute that specifically cross-references ORS 136.465. It is defined, however, elsewhere in the criminal code. In particular, ORS 161.515 provides: "A crime is an offense for which a sentence of imprisonment is authorized." ORS 161.515. The term "offense," in turn, is defined as "either a crime, as described in ORS 161.515, or a violation, as described in ORS 153.008." ORS 161.505. Under ORS 153.008,[3] an offense is a violation if, inter alia, it is designated as such or is punishable by a fine but not by a term of imprisonment. Thus, under those statutes, "violations" and "crimes" are distinct types of "offenses," distinguished principally by the fact that crimes are punishable by imprisonment and violations are not. Because they are distinct types of offenses, the fact that a statute uses the term "crime" (as does ORS 136.465) and not the term "violation" would seem at first blush to compel a conclusion that the legislature intended the statute to reach crimes but not violations. In the context of ORS 136.465, that would mean that a crime that is lesser-included offenses of a crime with which a defendant is charged may be submitted to a jury, but a lesser-included violation may not, as the Court of Appeals concluded. Swanson, 237 Or.App. at 511, 240 P.3d 63. Defendant concedes that, if those definitions of "violation" and "crime" apply, then ORS 136.645 did not permit the jury to consider a charge of careless driving in this case. He takes issue, however, with the conclusion that those definitions apply. Defendant's argument resolves into two propositions: (1) when ORS 136.465 was originally enacted, the term "crime" included offenses that were punishable only by fines and would therefore be denominated today as a "violation;" and (2) that the original scope of ORS 136.465 has remained the same, and has been unaffected *47 by more recently enacted definitions of the term "crime" that apply to other statutes in the criminal code. In interpreting a statute, the court's goal is to determine the legislature's intent. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009). In doing that, we look to the intent of the legislature that enacted the statute, and we also consider any later amendments or statutory changes that were intended by the legislature to modify or otherwise alter the meaning of the original terms of the statute. See, e.g., Holcomb v. Sunderland, 321 Or. 99, 105, 894 P.2d 457 (1995) (proper inquiry in interpreting statute focuses on what the legislature intended at the time of enactment); see also Mastriano v. Board of Parole, 342 Or. 684, 696, 159 P.3d 1151 (2007) (examining post-enactment legislative changes to statute and statutory context to determine whether they reflected a legislative intent to alter the meaning of statute as originally enacted). As we will explain, we are not persuaded that ORS 136.465, as originally enacted, would have applied to what qualifies as a violation under our current criminal code. In all events, as we will further explain, we are satisfied that later comprehensive changes to the criminal code were intended to, and did, alter the meaning of the term "crime," as it is used in statutes throughout the code, including ORS 136.465, to exclude violations. We begin with defendant's first proposition—that, as originally enacted, ORS 136.465 applied to offenses that, because they were punishable only by a fine, would today be designated as "violations." As defendant correctly observes, our state's original "lesser-included offense" statute was part of the 1864 Deady Code and was essentially identical in its wording to ORS 136.465. In particular, the Deady Code statute permitted a jury to consider any lesser-included "crime" of the offense with which the defendant was charged.[4] At that time, "crimes" were either "felonies" or "misdemeanors," and the two categories of crimes were distinguished solely by how they were punished. A "felony" was a crime that was punishable by death or imprisonment, and "[e]very other crime [was] a misdemeanor." General Laws of Oregon, Crim. Code, ch. I, §§ 2, 3, 4, pp. 441-42 (Deady 1845-1864). Defendant compares that classification scheme to that of our current criminal code, under which, as we have described, an "offense" is either a "crime" or a "violation," depending on whether it is punishable by a term of imprisonment (making it a crime) or by a fine but not a term of imprisonment (making it a violation). Defendant asserts that what is, under the current scheme, a violation punishable solely by a fine would qualify as a "crime" under the 1864 version of the lesser-included offense statute. Defendant's premise—and particularly his assessment of the category of offenses now denominated as "violations"—may overlook other distinctions between current-day violations and Deady Code-era crimes. To be sure, one distinguishing characteristic of a violation is the fact that only a fine, and not imprisonment, may be imposed for the offense. But the distinctive nature of a violation goes beyond that. Violations under our current criminal code are charges that have been "decriminalized." A determination of guilt for such an offense cannot carry criminal consequences of any sort, as the legislature has expressly declared: "Conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime." ORS 153.008(2). For that reason, prosecutions for violations are not subject to the constitutional procedural protections that are required for crimes. See, e.g., ORS 153.076(1), (2), and (5) (violation proceedings shall be tried to the court sitting without jury; charged violation must be proved by a preponderance, rather than a reasonable doubt, standard; defense counsel shall not be *48 provided at public expense); see generally Easton v. Hurita, 290 Or. 689, 697, 625 P.2d 1290 (1981) (discussing constitutional implications of decriminalizing traffic infractions); Mattila v. Mason, 287 Or. 235, 250, 598 P.2d 675 (1979) (same); Brown v. Multnomah County Dist. Ct., 280 Or. 95, 99-110, 570 P.2d 52 (1977) (same). In short, violations under the current classification system, given their noncriminal nature and the different procedures that apply to them, had no counterpart under the Deady Code.[5] That fact undermines defendant's premise that a violation under our current criminal code would have been a "crime" for purposes of the original lesser-included offense statute that was part of the Deady Code in 1864. However, even accepting defendant's premise for purposes of our analysis, his argument depends on a second proposition— that later legislation has not changed the meaning and scope of the term "crime" as it is now used in ORS 136.465. As we will explain, we conclude that when the legislature comprehensively revised the Oregon Criminal Procedure Code, of which ORS 136.465 is a part, it did so intending the general classification system that it had adopted in its 1971 revisions to the Oregon Criminal Code to control, including the definitions of terms such as "crime" and "violation." As we earlier noted, "crime" is defined in ORS 161.515 as follows: "(1) A crime is an offense for which a sentence of imprisonment is authorized. "(2) A crime is either a felony or a misdemeanor." That definition was adopted in 1971 as part of a complete revision of Oregon's criminal code. Or. Laws 1971, ch. 743, § 66. The revision, which was spearheaded by a legislatively-appointed Oregon Criminal Law Revision Commission, was the culmination of a years-long project to replace the existing criminal code, which was "replete with overlapping and seemingly inconsistent crimes and penalties[,]" with one that was modern and "internally consistent." Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report, Foreword, XXII (July 1970). The new definition of the term "crime," along with other new definitions—of "offense," "felony," "misdemeanor," and "violation"—was an essential component of a new offense classification scheme that grouped and punished offenses according to their seriousness. Id. at Foreword, XXIII. Notably, the 1971 Oregon Criminal Code was an overhaul of Oregon's substantive criminal law, and did not amend the statutes pertaining to criminal procedure, including ORS 136.465. Relying on that fact, defendant argues that, in the absence of any suggestion in the 1971 statute to the contrary, we must assume that the statute's narrower definition of the term "crime" was intended to apply only to the use of the term within the 1971 Criminal Code and to have no effect on its meaning in statutes outside that code, such as ORS 136.465. Defendant also relies on the notion that, in general, a definition of a term that appears in one area of the Oregon Revised Statutes does not necessarily control the term's meaning in another area. See, e.g., Enertrol Power Monitoring Corp. v. State of Oregon, 314 Or. 78, 84, 836 P.2d 123 (1992) (so stating); State ex rel. Frohnmayer v. Oregon State Bar, 307 Or. 304, 308 n. 2, 767 P.2d 893 (1989) (same).[6] *49 Defendant may be correct that the 1971 adoption of a new definition of the term "crime" had no direct effect on the meaning of that term in ORS 136.465, which pertains to criminal procedure. However, he is less persuasive when confronting the effects of the 1973 enactment of the Oregon Criminal Procedure Code. Or. Laws 1973, ch. 836, §§ 1-359. Although the 1973 procedural code did not modify the words of ORS 136.465 in any significant way,[7] it is clear from the legislative history of the 1973 code that the drafters intended to import into that code the 1971 Criminal Code definitions of "crime," "offense," and "violation." The 1973 Criminal Procedure Code and the 1971 Criminal Code were closely linked. Both codes were drafted by the Oregon Criminal Law Revision Commission, which the 1967 legislature created for the purpose of "prepar[ing] a revision of the criminal laws of this state, including but not limited to necessary substantive and topical revisions of the law of crime and of criminal procedure, sentencing, parole and probation of offenders, and treatment of habitual criminals." Or. Laws 1967, ch. 573, §§ 1, 2. The commission undertook that charge by first revising the substantive criminal laws and "defer[ring] work on a procedural code until completion of [that] phase of the project." Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report, Foreword, XXIV (1970). As soon as the commission completed its work on the substantive code in 1970 and the legislature enacted that code in 1971, the commission turned to the criminal procedural code revision. Thus, the commission's work on the procedural code was an extension of its recently completed effort on the substantive code. As the commission considered additions and amendments to the procedural statutes, it applied the definitions that it had drafted, and that the legislature had adopted, in the 1971 Criminal Code.[8] For example, when the commission considered certain procedural statutes pertaining to arrest, it decided to change the word "crime" to "offense" in a number of the statutes to make it clear that a person could be arrested (or criminally cited in lieu of arrest) for violations as well as misdemeanors and felonies. Minutes, Criminal Law Revision Commission, July 24, 1972, 34-36, 40. In the course of the same discussions, a member of the commission suggested that the use of the word "crime" in ORS 133.225, pertaining to the authority of private persons to make citizen's arrests, "was intentional and it should not be changed to `offense.'" Id. at 40. In at least one of the commission's discussions of the arrest statutes, the 1971 Criminal Code was explicitly acknowledged as the source of the relevant definitions of the term "crime." Minutes, Criminal Law Revision Commission, Subcommittee No. 1, June 9, 1972, 2. The commission had similar discussions about whether to use "offense" or "crime" with respect to the statutes governing stops by police officers[9] and the statutes governing arraignment and demurrers.[10] *50 During those discussions, the commission considered whether, and how, to change the original (1864) wording of ORS 136.465 (then numbered ORS 136.660). After a brief consideration of that statute, the commission produced an amended version that nonetheless continued to use the term "crime."[11] Although the commission did not specifically discuss whether to keep or modify the term "crime" in the lesser-included offense statute, the context of its discussions makes clear that the commission understood, in leaving it, that the term would carry the meaning given to it in the 1971 Criminal Code. Generally, the legislative history indicates that the commission and, later, the legislature, intended the term "crime," including when it was used in ORS 136.465, to have the meaning that it was given in the 1971 Criminal Code through the definition in ORS 161.515. We conclude that the jury's authority, described in ORS 136.465, to find a defendant guilty of "any crime the commission of which is necessarily included in that with which the defendant is charged," extends only to a crime as that term is defined in ORS 161.515—an offense "for which a sentence of imprisonment is authorized," i.e., felonies and misdemeanors. The offense for which defendant sought lesser-included treatment—careless driving—is not a "crime" within the meaning of that definition. It follows that the trial court did not err in denying defendant's request for a jury instruction on careless driving as an offense necessarily included in the crime charged, and that the Court of Appeals did not err in affirming the trial court's denial. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. NOTES [**] Landau, J., did not participate in the consideration or decision of this case. [1] See ORS 811.140 (setting out elements of reckless driving and providing for punishment as a Class A misdemeanor). [2] See ORS 811.135 (setting out elements of careless driving; designating offense as either a Class A or Class B traffic violation, depending on the circumstances of the offense; authorizing a sentence that includes a fine, but not authorizing a term of imprisonment). [3] ORS 153.008 provides: "(1) Except as provided in subsection (2) of this section, an offense is a violation if any of the following apply: "(a) The offense is designated as a violation in the statute defining the offense. "(b) The statute prescribing the penalty for the offense provides that the offense is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The statute may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment. "(c) The offense is created by an ordinance of a county, city, district or other political subdivision of this state with authority to create offenses, and the ordinance provides that violation of the ordinance is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The ordinance may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment. "(d) The prosecuting attorney has elected to treat the offense as a violation for purposes of a particular case in the manner provided by ORS 161.566. "(e) The court has elected to treat the offense as a violation for purposes of a particular case in the manner provided by ORS 161.568. "(2) Conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime." The parties agree, and ORS 811.435 establishes, that careless driving is a "violation." The question that remains is whether a "violation" is within the meaning of the term "crime," as it is used in ORS 136.465. [4] Thus, the original statute provided: "In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment, or of any attempt to commit such crime." General Laws of Oregon, Crim. Code, ch. XVII, § 164, pp. 468-69 (Deady 1845-1864). The change from the original "indictment" wording to the present "accusatory instrument" wording occurred in 1973, as part of a complete revision of the criminal procedure code. Or. Laws 1973, ch. 836, § 244. [5] In 1864, certain misdemeanors and lesser felonies could be prosecuted in "Justices' Courts" rather than circuit courts, following different procedures than the circuit courts followed. For example, criminal matters were initiated in Justices' Courts by means of a private complaint, rather than an indictment, and were prosecuted by the private complainant. All criminal prosecutions in Justices' Courts, however, were triable to a jury under the same criminal procedures that applied in the Circuit Courts. See generally General Laws of Oregon, Jus. Code, ch. I, § 2, p 583 (describing criminal jurisdiction of Justices' Courts); id. at ch X, §§ 78-105, pp. 597-602 (describing procedures in criminal actions in Justices' Courts). There was no concept of an offense that, due to its noncriminal nature, could be prosecuted in any court in the state without the procedures and protections constitutionally required in criminal cases. [6] Defendant also cites a provision in the 1971 revision through which the legislature disavowed an intent to affect statutes governing criminal procedure: "Except as otherwise expressly provided, the procedure governing the accusation, prosecution, conviction and punishment of offenders and offenses is not regulated by this act but by the criminal procedure statutes." Or. Laws 1971, ch. 743, § 6(1). That provision, however, is directed at the procedures themselves, not the meaning of words common to both substantive and procedural statutes. That provision has no application here. [7] The 1973 statute made a single modification to ORS 136.465 (then codified as ORS 136.660): the term "accusatory instrument" was substituted for the original term "indictment." Or. Laws 1973, ch. 836, § 244. [8] The commission was composed largely of sitting legislators and was charged by the legislature with revising Oregon's criminal statutes. In numerous cases, we have looked to the minutes of its deliberations as well as its published commentary on the revised code as an authoritative source of legislative history for the 1973 Criminal Procedure Code. See, e.g., State v. Conger, 319 Or. 484, 493 n. 4, 878 P.2d 1089 (1994) (considering commentary to code); State v. Hitt, 305 Or. 458, 462, 753 P.2d 415 (1988) (considering both minutes of commission meetings and official commentary to criminal procedure code); State v. Dyson, 292 Or. 26, 33-34, 636 P.2d 961 (1981) (same); State v. Mendacino, 288 Or. 231, 236 n. 4, 603 P.2d 1376 (1980) (relying on minutes of commission meetings). [9] Minutes, Criminal Law Revision Commission, January 28, 1972, 16. [10] Minutes, Criminal Law Revision Commission, August 28, 1972, 39. [11] Minutes, Criminal Law Revision Commission, August 28, 1972, 27. The minutes indicate that the only comment made with respect to the statute, and two others that were grouped with it, was that the amendments "were all housekeeping in nature."

212 Cal.App.2d 901 (1963) CHALLENGE CREAM AND BUTTER ASSOCIATION, Plaintiff and Respondent, v. ROYAL DUTCH DAIRIES, Defendant and Appellant. Civ. No. 26444. California Court of Appeals. Second Dist., Div. One. Feb. 13, 1963. A. P. G. Steffes for Defendant and Appellant. Knapp, Gill, Hibbert & Stevens and Karl K. Roos for Plaintiff and Respondent. WOOD, P. J. Appeal by defendant Royal Dutch Dairies from an order denying its motion to discharge a writ of attachment. (A motion of defendants Veldhuis and Hilarides, individually, as copartners doing business as Firestone Dairies, to discharge writ of attachment [as to them] was granted.) On March 30, 1961, defendant Royal Dutch Dairies assigned its assets to defendant Richard M. Durall for the benefit of creditors. The assignee, Durall, conducted the business of Royal Dutch Dairies about nine months (until December 26) when the assignor (Royal Dutch Dairies), pursuant to court order in another action, took possession of the assets then held by the assignee. During the last month that Durall was acting as assignee he purchased milk from the plaintiff herein, Challenge Cream and Butter Association. The present action, in which the writ of attachment was issued, is to recover $22,927.92 for milk sold by plaintiff to the *903 assignee, and to recover $101.09 representing the amount of an unpaid check drawn by the assignee. The affidavit for attachment stated that defendants are indebted to plaintiff in the sum of $23,029.01 "upon an implied contract" for the direct payment of money, to wit: reasonable value of goods sold and delivered. The sheriff attached the place of business of Royal Dutch Dairies, including furniture, equipment, and milk processing machinery. Prior to the assignment, Royal Dutch Dairies, a corporation, was engaged in the retail business of selling milk which it had purchased at wholesale prices from Firestone Dairies, a partnership, the members of which were defendants Ray Veldhuis and Peter Hilarides. When the assignment was made to Durall by Royal Dutch Dairies, the directors of that corporation were Ray Veldhuis, president, Peter Hilarides, secretary, and Durall (who was then the attorney for the corporation). The assignment provided, among other things, that the assignee should hold the assets in trust and reduce them to money as soon as that could prudently be done, or to continue the business, whichever in the judgment of the assignee would be best calculated to net the best returns for the creditors; that any contract made by the assignee in connection with the trust shall not be binding upon him in his personal capacity, "but shall bind said assignment estate and the assignee in his representative capacity." The assignee continued to purchase milk from Firestone Dairies until November 23, 1961, at which time he began purchasing milk from plaintiff, Challenge Cream and Butter Association. On November 2, 1961, in an action commenced by Durall (case no. 779497, Superior Court, Los Angeles County), he, upon filing a $10,000 bond, obtained a preliminary injunction restraining Royal Dutch Dairies, Veldhuis, and Hilarides from doing certain acts which allegedly interfered with the business which he, as assignee, was conducting. On December 4, 1961, upon a motion of the parties thus restrained, an order was made in said case (no. 779497) that the injunction be dissolved on December 8, 1961, unless Durall filed a bond in the amount of $125,000. He did not file the bond. On December 26, 1961, in an action commenced by Royal Dutch Dairies apparently for the purpose of rescinding the *904 assignment (case no. 728893, Superior Court, Los Angeles County), it (Royal Dutch), upon filing a $165,000 bond, obtained a preliminary injunction restraining Durall from withholding possession of the assets of said business. On said date, Royal Dutch took possession of the assets. (The references in this paragraph to the two other cases are based upon the original files in the county clerk's office, which files were considered by the trial judge, as stated in his memorandum opinion.) The first three of the six causes of action in the complaint are to the effect that Durall is indebted to plaintiff. The first cause of action is based on a written contract between plaintiff, as seller of milk, and Durall, the assignee, as purchaser; and it is to recover $22,927.92 for milk sold to the assignee between November 22 and December 26, 1961. The second cause of action is to recover $101.09 upon a dishonored check which was drawn by the assignee. The third cause of action alleges that between said dates, at the special instance and request of the assignee, the plaintiff sold to the assignee dairy products of the agreed value of $22,927.92. [1a] The fourth cause of action alleges that the assignee's purchases of dairy products, as alleged in the first cause of action, were for the use and benefit of defendant Royal Dutch Dairies; that said defendant received the benefit of said purchases in that it sold said products to its customers and has received and now retains the revenue derived from said sales; that although plaintiff demanded that defendant Royal Dutch Dairies pay $22,927.92, the reasonable value of said milk products, and that it pay $101.09, the amount of the dishonored check, it has refused to pay any part thereof; that by reason of said premises, the defendant Royal Dutch Dairies has been unjustly enriched in the amount of $23,029.01. The fifth cause of action alleges that on December 26, 1961, defendants Veldhuis and Hilarides, individually, and as co-partners doing business as Firestone Dairies, and defendant Royal Dutch Dairies, took possession and control of the assets of Royal Dutch Dairies by reason of a preliminary injunction restraining Durall from interfering with said defendant's possession, and since said date said defendants have retained possession of said assets from which the amount of $23,029.01, now due to plaintiff from Durall, as assignee, could have been paid. The sixth cause of action alleged that defendant New *905 Hampshire Insurance Company had obligated itself as surety for Durall for the benefit of plaintiff. This action was commenced on January 31, 1962. On February 8, 1962, Royal Dutch Dairies made a motion to discharge the writ of attachment on the grounds that: the writ was issued improperly; plaintiff's purported cause of action against said defendant is not founded upon a contract, express or implied; it appears from plaintiff's first three causes of action against Durall, as assignee, that plaintiff sold all milk pursuant to plaintiff's contract with Durall, and that title to the milk passed exclusively to him; Durall at all times was acting as the purported assignee for the benefit of creditors, but he, in obtaining the milk from plaintiff, was not acting for the benefit of Royal Dutch Dairies, and was acting adversely to it; plaintiff sold milk to Durall over the repeated objections of Royal Dutch Dairies; all the milk was delivered to Durall while he was in possession of the premises of Royal Dutch Dairies adversely to its claims; when Royal Dutch Dairies was restored to possession of its premises, it had filed a $165,000 bond to indemnify Durall, as assignee, against any damage he might sustain by reason of the injunction. The affidavit of Ray Veldhuis, in support of the motion to discharge the writ, stated in part: That before plaintiff (Challenge) began selling milk to Durall, he (Durall) had obtained a restraining order which deprived Royal Dutch of possession of its premises, and during the time it was deprived of possession, the defendant Durall was conducting the business in his own name and as the sole proprietor. Durall retained all the proceeds from milk delivered to him by Firestone Dairies. The defendants, other than Durall, objected to the sale of milk by plaintiff to Durall. When Durall discontinued buying milk from Firestone he owed $5,337.42 to Firestone for milk delivered, and at a later date he gave a check to Firestone for that amount but the bank refused payment thereof because insufficient funds were on deposit. All money which was on the premises when Royal Dutch repossessed the business was used to pay accrued wage claims, and Royal Dutch did not obtain any property belonging to plaintiff. The affidavit of George E. Atkinson, in support of the motion to discharge the writ, stated in part: He is the attorney for Veldhuis, Hilarides, and Royal Dutch. On November 21, *906 1961, Durall as assignee served notice of cancellation of his contract to purchase milk from Firestone. Thereupon, affiant told Mr. Hibbert, one of the attorneys for plaintiff, that Durall was acting as assignee for the benefit of the creditors of Royal Dutch, that there was serious controversy between the assignee and the assignor, that the assignee had not paid Firestone for milk, and that if plaintiff sold milk to him it (plaintiff) might not be paid. Later, Mr. Hibbert informed affiant that plaintiff had decided to enter into a contract to sell milk to Durall, as assignee. On December 4 affiant caused a written notice (notice by Royal Dutch of rescission of assignment--marked exhibit A and attached to affidavit) to be served on plaintiff, but plaintiff did not reply to the notice. None of the milk sold by plaintiff to Durall, as assignee, was used for the benefit of Royal Dutch, and no revenue from the sale of such milk was received by Royal Dutch. (The written notice, exhibit A, which was given to plaintiff by Royal Dutch, was in substance that the authority of Durall to act as assignee of Royal Dutch had been rescinded.) The affidavit of defendant Durall, in opposition to the motion to discharge the writ, stated in part: The creditors of Royal Dutch included 86 unsecured creditors. Since the assignment, Veldhuis and Hilarides have followed a course of harassment and threats to force affiant to sell the assets of Royal Dutch to them for less than a fair price. After Royal Dutch had posted the bond ($165,000 bond) in its action against Durall, he (affiant) was willing for Royal Dutch to go into possession of the assets as constructive trustee for affiant, but he expected that the current obligations would be paid from the assets. Royal Dutch has not paid the current obligations, although it has collected approximately $75,000. When Royal Dutch took possession, Veldhuis, as president, received about $1,500 cash from affiant, and received milk of the approximate value of $3,000, and received current accounts receivable in the amount of $32,269.69, of which amount at least $27,000 was from sale of milk delivered by plaintiff (Challenge). On January 26, 1962, affiant received from Hilarides an offer to buy the assets of Royal Dutch for $331,100. On January 31 affiant accepted the offer, but Hilarides has not purchased the assets. Another affidavit of Ray Veldhuis was in substance a denial of the statements in Durall's affidavit, except that Veldhuis stated that Hilarides did make an offer to buy the assets, *907 but that the offer was made because Durall had represented to the court that by reason of the injunction (in favor of Royal Dutch) he would be prevented from selling the assets for $331,000. That Hilarides offered to purchase all the property for a greater amount ($331,100). Appellant's contention or points on appeal are in substance the same as its statement of grounds for the motion to discharge the writ. It (Royal Dutch) argues the sale was to Durall; there was no relationship of debtor and creditor between it and plaintiff (Challenge); the first three causes of action show that the contract was solely with Durall; the fact that the fourth and fifth causes of action resemble common counts does not confer upon plaintiff a right of attachment; any claim of plaintiff that there was an implied contract with Royal Dutch is disproved by the first three causes of action wherein it is alleged that the milk was sold and delivered to Durall; appellant was not unjustly enriched when it was restored, pursuant to a preliminary injunction, to assets claimed by it. The first three causes of action allege that Royal Dutch made an assignment to Durall for the benefit of its creditors. It is true that those causes of action are directed only against the assignee, and are based upon the written contract between Challenge (plaintiff) and the assignee. An argument of appellant (Royal Dutch) seems to be that since Challenge has a cause of action against the assignee upon the express written contract, there cannot be liability on the part of the assignor upon a theory of implied contract arising from circumstances connected with the transaction. The fourth and fifth causes of action also allege that Royal Dutch made an assignment to Durall for the benefit of its creditors. These causes of action are to the effect that the purchases by Durall, the assignee, were for the use and benefit of the assignor (Royal Dutch), which received the benefit thereof in that it sold said milk products and retained the revenue derived therefrom; that the assignor has been unjustly enriched; and that the assignor, pursuant to court order, has taken possession of the assets which were in possession of the assignee, and from which assets the amount due to Challenge could have been paid. Under the assignment the assignee was authorized to continue the business, and it was further provided therein that any contract made by the assignee in connection with the business should "bind the assignment estate." The assignee *908 continued or operated the business and made the contract under which he created the indebtedness to Challenge. It appears from the fourth and fifth causes of action and the affidavits that the assignor Royal Dutch rescinded its assignment for the benefit of creditors and took possession of the assigned assets and other assets which accumulated during the operation of the business by the assignee. In so taking possession of such assets for its own benefit, it is presupposed, for the purposes of this motion, that Royal Dutch not only accepted the benefit of the Challenge contract (which, according to the assignment, bound the "assignment estate"), but also accepted the detriment of it, or obligation to pay the reasonable value of the milk. In viewing the affidavits in the light favorable to the order of the trial court, it appears, for the purposes of this motion, that Royal Dutch, in so taking possession of the assets, received about $1,500 from Durall, and also received Challenge milk and accounts receivable from sale of Challenge milk (by the assignee) of the approximate value of $30,000; and thereby Royal Dutch was unjustly enriched. [2] In Major-Blakeney Corp. v. Jenkins, 121 Cal.App.2d 325, 339-340 [263 P.2d 655], it was said: "[T]he gravamen of a quasi-contractual action grounded on unjust enrichment is the equitable principle that a person should not be allowed to enrich himself at the expense of another. [Citations.] It presupposes the acceptance and retention of a benefit by one party with full appreciation of the facts, under circumstances making it inequitable for the benefit to be retained without payment of the reasonable value thereof." [1b] In the present case the trial court could properly conclude that the fourth and fifth causes of action, as against appellant (Royal Dutch), were upon an implied contract for the direct payment of money. Section 538 of the Code of Civil Procedure provides that a writ of attachment may be issued in an action upon such a contract. [3] An issue as to the extent of a defendant's liability, if any, may not be determined on a motion to discharge a writ of attachment. (See Minor v. Minor, 175 Cal.App.2d 277, 280 [345 P.2d 954]; Rose v. Pearman, 163 Cal.App.2d 480, 484 [329 P.2d 501].) [4] Appellant asserts further that the affidavit for a writ of attachment was defective and insufficient to justify the issuance of the writ, for the reason the "subscribed and *909 sworn to" certificate signed by Marguerite E. Lavery does not show that she was a notary public or other person authorized to administer an oath. It is true that the words "Notary Public" do not appear in writing in connection with the certificate, and it is true that the portion of the seal as shown on the photostatic copy of the affidavit in the clerk's transcript does not show that she is a notary public. The imprint of the seal on the original affidavit in the superior court file shows the following words: "Marguerite E. Lavery Notary Public Los Angeles Co. Cal." The affidavit was sufficient. The order is affirmed. Fourt, J., and Lillie, J., concurred.

765 P.2d 641 (1988) The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Narcisco G. CASTENADA, Defendant-Appellant. No. 86CA1656. Colorado Court of Appeals, Div. II. August 25, 1988. Rehearing Denied September 29, 1988. Certiorari Granted December 19, 1988. *642 Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Hope McGowan, Timothy E. Nelson, Asst. Attys. Gen., Denver, for plaintiff-appellee. David F. Vela, State Public Defender, Philip R. Cockerille, Sp. Deputy State Public Defender, Denver, for defendant-appellant. Certiorari Granted (People) December 19, 1988. KELLY, Chief Judge. The defendant, Narcisco G. Castenada, was found guilty by a jury of aggravated robbery in violation of § 18-4-302(1)(b), C.R.S. (1986 Repl.Vol. 8B), but was found not to have "used, or possessed and threatened the use of, a deadly weapon during the commission of ... [a] robbery" within the meaning of § 16-11-309(2)(a)(I), C.R.S. (1986 Repl.Vol. 8A). Relying on Robles v. People, 160 Colo. 297, 417 P.2d 232 (1966), he argues that the verdict and finding are inconsistent, and he seeks reduction of the verdict to simple robbery and re-sentencing, or a new trial. We reverse and remand to the trial court for re-sentencing. One morning in 1985, the defendant entered a Denver parking lot, approached the attendant, and ordered him to remove the cash from the cash drawer and put it in an empty plastic cup the defendant had placed on the counter. With one hand in his jacket pocket, he said, "I have a gun." He then asked for and received the attendant's parka. Leaving the cup and money on the counter, the defendant fled the scene with the parka. He was apprehended several hours later wearing the parka. It was not established by the evidence that he was actually in possession of a gun at the time of the robbery. Jury consideration of the aggravated robbery and crime of violence counts was bifurcated by the trial court. The jury first returned its verdict of guilty on the aggravated robbery count and was then given separate instructions for consideration of the crime-of-violence count. It returned a finding that the defendant "did not use or possess and threaten the use of, a deadly weapon during the commission of the crime of Aggravated Robbery." I. The People argue that the aggravation element in § 18-4-302(1)(b), C.R.S. (1986 Repl.Vol. 8B) is not the same as the violent crime element of § 16-11-309(2)(a)(I), C.R.S. (1986 Repl.Vol. 8A) authorizing sentence enhancement. The contention is that a charge of aggravated robbery does not require evidence of actual use or possession of a deadly weapon, while a charge of commission of a violent *643 crime does require such proof. We disagree. While the aggravated robbery statute does not explicitly require possession by a defendant of a deadly weapon, the plain language of § 18-4-302(1)(b) carries that strong implication. Thus, the statute states that: "A person ... is guilty of aggravated robbery if during the act of robbery...: (b) He[,] ... by the use of force, threats, or intimidation with a deadly weapon knowingly puts the person robbed ... in reasonable fear of death or bodily injury...." Moreover, the General Assembly has provided further, in § 18-4-302(2), C.R.S. (1986 Repl.Vol. 8B): "[A]ny verbal or other representation by the defendant that he is then and there [armed with a deadly weapon], is prima facie evidence under subsection (1) of this section that he was so armed." We regard this statutory language as dispositive of the issue. Were it possible to obtain a conviction of aggravated robbery without a showing that the defendant was armed with and in possession of a deadly weapon, this statutory presumption would not have been necessary. It is our obligation to harmonize and to give effect to all the provisions of a statute. People v. District Court, 713 P.2d 918 (Colo.1986). Accordingly, we reject the People's argument that, because the only evidence that the defendant possessed a gun was his verbal and manual communications, the jury could consistently convict him of aggravated robbery and yet find that he had not committed a crime of violence. A conviction for aggravated robbery requires proof that the defendant placed the victim in fear with a deadly weapon. The People proved this element of aggravated robbery by relying on the presumption contained in § 18-4-302(2). However, if the jury was convinced beyond a reasonable doubt that all of the elements of aggravated robbery were present, it could not also consistently find that the defendant did not possess a deadly weapon, thereby exonerating him of the commission of a violent crime. Here, we must conclude that, since the jury returned the specific negative finding on the violent crime count, it was not convinced beyond a reasonable doubt that all the elements of aggravated robbery were present. Our conclusion is fortified by the absence of instruction to the jury informing it of the statutory presumption. Since the evidence supports a conviction of simple robbery, however, we need not require a new trial, but rather have the option of reducing the grade of the crime to the lesser offense. II. We also reject the People's argument that any inconsistencies in the findings are irrelevant because one statute deals with the substantive crime, while the other is merely a sentence enhancer. An accused person must be found to have committed the substantive offense before the provisions of § 16-11-309(2)(a)(I), C.R.S. (1986 Repl.Vol. 8A) apply. Brown v. District Court, 194 Colo. 45, 569 P.2d 1390 (1977). If the elements of the substantive offense and the sentence enhancer are the same, as here, the verdicts must be consistent if based on the same facts. See Robles v. People, supra. The inconsistent findings in this case are based on the same facts. III. The People also argue that a jury is not obliged to return a consistent finding on a violent crime count, since it may accord lenience to the defendant as to the sentence enhancer. The jury here was not instructed that a finding that the defendant committed a violent crime related to the sentence only. Indeed, it would be reversible error to do so. Sentencing is the exclusive province of the court with which, absent a contrary statute, the jury has no concern. Saleen v. People, 41 Colo. 317, 92 P. 731 (1907). The sole function of the jury as to the crime of violence adjudication is to return the fact-finding required by the statute. *644 The judgment of conviction of aggravated robbery is reversed, and the cause is remanded to the trial court with directions to enter a judgment of conviction of simple robbery, and to impose sentence for that offense. SMITH and VAN CISE, JJ., concur.

HTTP/1.1 200 Date: Fri, 24 Apr 2020 18:07:25 GMT Content-Type: application/pdf

278 S.E.2d 574 (1981) STATE of North Carolina v. George TURMAN. No. 8112SC33. Court of Appeals of North Carolina. June 2, 1981. Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Lucien Capone, III, Raleigh, for the State. Asst. Public Defender, Twelfth Judicial District, John G. Britt, Jr., Fayetteville, for defendant-appellant. HARRY C. MARTIN, Judge. Defendant was convicted of violating N.C.G.S. 14-202.1, and now attacks the constitutionality of this statute. He contends the statute is unconstitutional in that (a) it *575 is a denial of due process because of vagueness, (b) it is a denial of equal protection because of age classification in the statute, and (c) it is an overbroad restriction on protected activity. Defendant does not cite any authority in support of his contentions. It is clear that the challenged statute is constitutional. Our Supreme Court has passed upon these identical arguments in State v. Elam, 302 N.C. 157, 273 S.E.2d 661 (filed 27 January 1981). Further elaboration on these points in this opinion would serve no useful purpose. The law as stated in Elam controls this appeal, and the assignments of error directed to the constitutionality of the statute are overruled. Defendant contends the court erred in its charge by instructing the jury that masturbation in the presence of another would be an immoral or indecent act within the meaning of the statute. Defendant argues that because the statute uses the words "with any child," there must be some touching of the child to constitute an indecent liberty under the statute. We reject the argument and hold that it is not necessary that there be a touching of the child by the defendant in order to constitute an indecent liberty within the meaning of N.C. G.S. 14-202.1. See State v. Turgeon, 44 N.C.App. 547, 261 S.E.2d 501, disc. rev. denied, 299 N.C. 740, 267 S.E.2d 669 (1980). The purpose of the statute is to give broader protection to children than the prior laws provided. State v. Harward, 264 N.C. 746, 142 S.E.2d 691 (1965). The word "with" is not limited to mean only a physical touching. See Webster's Third New International Dictionary 2626 (1971). We find no prejudicial error in the challenged instruction. Accordingly, we hold that the acts allegedly performed by defendant were "immoral, improper, or indecent liberties" within the meaning of the statute. Therefore, we overrule defendant's last assignment of error, in which he contends the trial court erred in denying his motions to dismiss for insufficiency of the state's evidence. No error. HEDRICK and WELLS, JJ., concur.

669 So.2d 748 (1996) Jerry J. RILEY v. JEFFERSON DAVIS COUNTY, Mississippi. No. 92-CA-00848-SCT. Supreme Court of Mississippi. February 5, 1996. *749 Donald C. Woods, Clinton, for appellant. Donald G. Kruger, Prentiss, for appellee. Before PRATHER, P.J., and PITTMAN and McRAE, JJ. PITTMAN, Justice, for the Court: This is an appeal from an order entered by the Circuit Court of Jefferson Davis County, Mississippi, on July 27, 1992. The circuit court upheld the Board of Supervisors of Jefferson Davis County, hereinafter "Board," ruling on the Appellant's Petition for Reduction and/or Change of Assessment as permitted by Miss. Code Ann. § 11-51-75 (1972).[1] Jerry J. Riley filed a Petition for Reduction and/or Change of Assessment with the Board. On June 3, 1991, the Board met and considered Riley's Petition and notified him of their decision by Order dated June 3, 1991, and certified on June 24, 1991. Subsequently, Riley filed a Motion for Reconsideration with the Board. The Board by Order dated August 5, 1991, and certified August 23, 1991, affirmed the Order of June 3, 1991. Riley appealed the Board's decision to the Circuit Court pursuant to Mississippi Code Annotated Section 11-51-75 (1972). On September 3, 1991, Riley filed a Complaint for Declaratory Judgment and Injunctive Relief against Jefferson Davis County, Mississippi. He then filed a Motion to Amend the Complaint on February 3, 1992. Jefferson Davis County filed the appropriate response and Riley timely replied to the response. Thereafter, the Circuit Court entered its Order Overruling Petition for Reduction and/or Change of Assessment on July 27, 1992. Aggrieved by the lower court's Order, Riley filed Notice of Appeal to this Court. The issue on appeal is: WHETHER PURSUANT TO MISSISSIPPI CODE ANNOTATED SECTION 27-35-50(4), THE OWNER OF TWO UNDEVELOPED LOTS IS ENTITLED TO AN AGRICULTURAL CLASSIFICATION FOR AD VALOREM TAX PURPOSES WHEN THE LAND IS UNDISPUTABLY DEVOTED TO PRODUCTION OF TIMBER. The circuit court's Order Overruling Petition for Reduction and/or Change of Assessment was in error and the case should be reversed and remanded for action consistent with this opinion. In his complaint Riley alleged that he was the owner of certain real property located in Prentiss, Jefferson Davis County, Mississippi. More specifically, he owned two lots described as follows: Lots 2 & 3, Blk 1, Quinn Gardens S/D PB 1/27, Sec. 001-C7N-19W, Deed 86-229. Riley's property is assessed on the tax rolls of Jefferson Davis County as residential property. The said lots are used only for growing pine trees. At no time has Riley constructed a residence or any form of habitable structure on the land. Subsequent to a subdivision plat being recorded on July 20, 1962, they zoned the subdivision for residential use. However, Riley asserts that pursuant to Mississippi Code Annotated § 27-35-50(4) (1972) it is the use of the land and not the location which must be the determining factor in assessing the *750 land for tax purposes. The Board, on the other hand, claims that the location will control how the assessment will be ascertained. It is this dispute concerning the interpretation of Mississippi Code Annotated Section 27-35-50 (1972) and specifically subsection (4) that is today brought to this Court for a final determination. Riley takes this appeal pursuant to Miss. Code Ann. § 11-51-75 (1972). This Court clearly stated the standard of review for such appeals in Thornton v. Wayne County Election Com., 272 So.2d 298 (Miss. 1973). The circuit court reviews the record made before the board, of the testimony made or proffered, to determine whether or not the acts and orders of the board are reasonable and proper or arbitrary or capricious or beyond the power of the board to make or whether they violate any constitutional right of the complaining party. Thornton, 272 So.2d at 301-02 (citations omitted). The crux of this case is whether Riley's property may properly be assessed as agricultural for ad valorem tax purposes pursuant to Miss. Code Ann. § 27-35-50 (1972). The relevant part of the statute reads as follows: (4) In arriving at the true value of all Class I and Class II property and improvements, the appraisal shall be made according to current use, regardless of location. In arriving at the true value of any land used for agricultural purposes, the appraisal shall be made according to its current use, regardless of location. ... The land shall be deemed to be used for agricultural purposes when it is devoted to the commercial production of crops and other commercial products of the soil, including but not limited to the production of fruits and timber or the raising of live-stock and poultry. Miss. Code Ann. § 27-35-50(4) (Supp. 1990) (emphasis added). Section 27-35-50 is in accord with the Mississippi Constitution. Article 4, Section 112 states that "[t]he Legislature shall provide, by general laws, the method by which the true value of taxable property shall be ascertained; provided, however, in arriving at the true value of Class I and Class II property,[2] the appraisal shall be made according to current use, regardless of location." Miss. Const. of 1890, art. IV, § 112 (1994) (emphasis added). Riley contends that under the above-mentioned statute and the Mississippi Constitution his land should be assessed as agricultural property. He notes that the Board and the tax assessor required Riley to rezone in order to obtain reclassification. Instead of applying the proper code section, the Board and tax assessor created a new test and procedure for procuring an agricultural classification. Riley argues that contra to the controlling code section, the Board and Tax Assessor determined that rezoning would be the test for obtaining an agricultural classification for ad valorem tax purposes. This test for assessment is both arbitrary and capricious. The Board contends that Riley did not meet all the requirements of Miss. Code Ann. § 27-35-50(4) and thus, it was within the discretion of the tax assessor as to how he would classify the land. In formulating this argument, the Board relies upon the language "devoted to commercial production" in the statute. Miss. Code Ann. § 27-35-50(4) (Supp. 1990). It is the Board's contention that Riley had no commercial motivation at all, but rather was attempting to escape the increase in residential taxes. Therefore, it is the Board's position that Riley did not meet the requirements of § 27-35-50(4) and ergo, the tax assessor had discretion to classify the property as he saw fit. In affirming the Board's decision, the circuit court also created a new reclassification test. Riley asserts that the court erred when *751 it focused on the use, assessment and zoning of other lots located in the platted subdivision. Riley claims that the effect of the circuit court's ruling was to render the current use of Riley's land immaterial to the classification of said land for tax purposes. This is in direct conflict with the statute and the Mississippi Constitution. The lower court stated that Riley would be entitled to tax relief only when he demonstrated two things: (1) that other lots in Quinn Gardens are subject to be reclassified as agricultural, or (2) the other lots are "assessed differently." The Board erroneously created a discretion that does not exist. The Board acted beyond its powers when it granted such discretion to the tax assessor. It is not clear whether the land is for "commercial production." Furthermore, the statutory language "according to current use, regardless of location" refers to both Class I and Class II property. Whether the land is residential or agricultural, both values are determined according to the land's current use. Neither the Board nor the circuit court should depend upon the zoning or the other lots around the land for determining the classification. The statute reads very clearly and should not be misconstrued. The land shall be appraised according to its current use. The land has never been used for residential purposes. It was used for agricultural purposes when the city zoned it as residential. Mere zoning laws will not change the use of the property. The clear language of the statute states that land will be assessed "according to current use, regardless of location" and it is apparent that Riley's land is used for agricultural purposes regardless of its location. Furthermore, it is Riley's contention that the actions by the Board and the court below have created an irrebuttable presumption that the use of his property could only be residential. It is this irrebuttable presumption that Riley contends violates the due process clause of both the Mississippi Constitution and the Federal Constitution. In support of this argument Riley cites a Florida Supreme Court case, Bass v. General Development Corp., 374 So.2d 479 (Fla. 1979). In Bass, the appellant challenged the lower court's ruling that a state tax statute requiring certain lands to be reclassified as nonagricultural if the owner had recorded a subdivision plat subsequent to the enactment of the law was unconstitutional. Bass, 374 So.2d at 479-80. The appellee in Bass filed a subdivision plat for a portion of its land subsequent to the enactment of the aforementioned statute. Id. at 480. Thus, the appellant tax assessor denied an agricultural tax classification for the property at issue. For four years the tax assessor denied the land an agricultural tax classification. Id. During this time additional subdivision plats were recorded for portions of the appellee's land. However, the land was under a cattle grazing lease and was exclusively devoted to agricultural activity. Id. at 479. The appellee filed four suits challenging the denials of an agricultural tax classification and attacking the constitutionality of the statute. The trial court entered summary judgment in favor of the appellee holding that the Florida statute was unconstitutional "because it violates due process by creating an irrebuttable presumption that land for which the owner has recorded a subdivision plat is nonagricultural." Id. at 480. The Florida Supreme Court affirmed the trial court's holding that the statute was unconstitutional. Id. at 486. Riley recognizes that his denial of agricultural status is not predicated on a statute. However, he draws a persuasive analogy between the irrebuttable presumption that the land is nonagricultural because of the recording of a subdivision plat created by the Board, the tax assessor, and the circuit court and the irrebuttable presumption in Bass. The decisions of the tax assessor, the Board, and the circuit court all placed reliance upon the fact that a subdivision plat had been recorded for the land in question and that the other plots were all residential. This effectively created the same irrebuttable presumption that the statute created in Bass. The Florida Supreme Court noted that: it is unreasonable and unconstitutionally impermissible to presume conclusively from the recording of a subdivision plat *752 that the platted land is not presently being used primarily for good faith commercial agricultural purposes; and ... that although the recording of a subdivision plat may support a conclusive presumption that the intended future use of the platted land will be nonagricultural, to single out this class of taxpayers from all other[s] who are assessed on a present use criteria is so disparate as to deny them equal protection of the law. Bass, 374 So.2d at 485-86. We hold that the Florida Supreme Court's analysis and holding are persuasive in the case sub judice. Although the present case and the case in Bass are not exactly on point factually, the number of similarities lends to its persuasiveness. The Florida State Constitution Article VII, Section 4(a) requires that "assessment of agricultural land be based upon its character or use." Bass, 374 So.2d at 481. The Mississippi State Constitution states that "the appraisal shall be made according to current use, regardless of location." Miss. Const. of 1890, art. IV, § 112 (1994) (emphasis added). In both cases the fact that a subdivision plat had been recorded created an irrebuttable presumption that the land was used for nonagricultural purposes. The Florida Supreme Court noted that "[t]he filing of a subdivision plat has little to do with the present use of property." Bass, 374 So.2d at 484. The irrebuttable presumption created by the decisions of the tribunals below denies Riley of equal protection of the law just as the irrebuttable presumption did in Bass. Thus, the Board's action violated Riley's constitutional rights. The Mississippi Constitution and the relevant statute require that land be assessed according to current use for purposes of ad valorem taxes. Yet, the Board determined that reliance upon location and use of surrounding parcels of land was the test for assessment by the tax assessor. The Board created unfettered discretion and acted beyond its powers in doing so. Therefore, the Board's actions were in direct conflict with controlling law and are improper, arbitrary, capricious, beyond their powers, and a violation of Riley's constitutional rights. Thus, this case is reversed and remanded for action consistent with this opinion. REVERSED AND REMANDED. DAN M. LEE, C.J., PRATHER and SULLIVAN, P.JJ., and BANKS, McRAE, JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur. NOTES [1] The Board of Supervisors decided to affirm a tax classification by the County Tax Assessor and held that the property was properly assessed as residential. [2] The Mississippi Constitution Article 4, Section 112 defines Class I property as "[s]ingle-family, owner-occupied, residential real property" and Class II property as "[a]ll other real property, except for real property included in Class I or IV." Miss. Const. of 1890, art. IV, § 112 (1994). Class IV property is "[p]ublic utility property, which is property owned or used by public service corporations required by general laws to be appraised and assessed by the state or the county, excluding railroad and airline property and motor vehicles." Id.

794 F.2d 679 Johnsonv.Sperry Corp. 85-1835 United States Court of Appeals,Eighth Circuit. 4/24/86 1 E.D.Mo. AFFIRMED

911 So.2d 1286 (2005) Kenneth ANDRES, Brenda Bagley and John W. Eason, Appellants, v. CITY OF JACKSONVILLE, Florida, Appellee. No. 1D04-0406. District Court of Appeal of Florida, First District. October 11, 2005. Leslie Scott Jean-Bart of Farah, Farah & Abbott, P.A., Jacksonville, for Appellants. *1287 Richard A. Mullaney, General Counsel; Scott D. Makar, Chief, Appellate Division, Jacksonville, for Appellee. BENTON, J. We affirm the trial court's dismissal for failure to prosecute. See Fla. R. Civ. P. 1.420(e)(2003) ("All actions in which it appears on the face of the record that no activity... has occurred for a period of 1 year shall be dismissed...."); Spikes v. Neal, 792 So.2d 571, 573 (Fla. 1st DCA 2001) ("Our standard of review is whether the trial court abused its discretion."); Lenion v. Calohan, 652 So.2d 461, 463 (Fla. 1st DCA 1995) ("`For a party to establish good cause, it must show a compelling reason to avoid dismissal where there has been no record activity.' American Eastern Corp. v. Henry Blanton, Inc., 382 So.2d 863, 865 (Fla. 2d DCA 1980)."). We decline the appellants' invitation to review antecedent interlocutory orders, as review of those orders is beyond the scope of this appeal. "Furthermore, the validity of a dismissal for failure to prosecute is entirely independent of the merits of prior interlocutory decisions." John's Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101, 107 (1st Cir.1998). See id. at 103-08; DuBose v. Minnesota, 893 F.2d 169, 171 (8th Cir.1990); Huey v. Teledyne, Inc., 608 F.2d 1234, 1239 (9th Cir.1979); Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir.1974). But see Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 178-79 (2d Cir.1990); Nichols v. Mobile Bd. of Realtors, Inc., 675 F.2d 671, 675 (5th Cir. Unit B 1982). Affirmed. WEBSTER and POLSTON, JJ., concur.

734 F.2d 1377 84-2 USTC P 9554 Murton D. STRIMLING and Brenda Strimling, Frank S. Cavallaroand Diana Cavallaro, Steven C. Kalb and Wendy A. Kalb, ErvenJ. Nelson and Marion T. Nelson, Richard B. Scarff, Jr. andJeanne Scarff, John Robarts and Ann Robarts, Patrick M.Flanagan and Grace Flanagan, Remo Bedotto and Esther Z.Bedotto, Albert C. Merkin and Eunice Merkin, Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Appellee. CA No. 83-7617. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 13, 1984.Decided June 8, 1984. Bruce I. Hochman, Hochman, Salkin & DeRoy, Beverly Hills, Cal., for appellants. Ernest J. Brown, Washington, D.C., for appellee. Appeal from the Decision of the United States Tax Court. Before WALLACE, KENNEDY and CANBY, Circuit Judges: PER CURIAM. 1 This appeal arises from the attempts of several taxpayers to establish "Clifford Trusts" for the benefit of their children. See 26 U.S.C. Secs. 671-78 (1976). In each case the corpus of the trust consisted of $10 cash and a promissory note executed by taxpayers in amounts ranging from $10,000 to $85,000. Taxpayers made payments to the trusts of "interest" on the notes and sought interest deductions therefor. 2 The Tax Court, in a well-reasoned memorandum, held that under applicable Nevada law the promissory notes were unenforceable for lack of consideration. Strimling v. Commissioner, T.C.Memo. 1983-281, 46 T.C.M. (CCH) 211 (1983). It accordingly held that taxpayers' payments of "interest" on the notes constituted nondeductible gifts rather than deductible interest payments. Id. We conclude that the Tax Court was correct in both rulings, and we adopt the reasoning of its memorandum. 3 Like the Tax Court, we do not reach the question whether these trusts represented sham transactions. It is enough that the payments on the unenforceable notes fail to qualify as "interest," which has been defined as the "amount one has contracted to pay for the use of borrowed money." Old Colony R. Co. v. Commissioner, 284 U.S. 552, 560, 52 S.Ct. 211, 213, 76 L.Ed. 484 (1932). 4 AFFIRMED.

Case: 16-20546 Document: 00514306629 Page: 1 Date Filed: 01/12/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-20546 FILED January 12, 2018 Lyle W. Cayce WESTERN-SOUTHERN LIFE ASSURANCE COMPANY, Clerk Plaintiff - Appellee Cross-Appellant v. GEORGE W. KALEH, Defendant - Appellant Cross-Appellee Appeals from the United States District Court for the Southern District of Texas Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges. REAVLEY, Circuit Judge: This case involves a lender who sued a guarantor for the breach of three personal guarantees. George Kaleh signed the guarantee agreements in conjunction with a real-estate-development project, and Western-Southern Life Assurance Company financed the project. After the borrowers defaulted on the underlying loans, Western foreclosed on the property and sued Kaleh. The district court conducted a bench trial, found each claim timely, and awarded Western some but not all of its various forms of damages. Both Kaleh and Western appealed. After sorting through numerous issues, we vacate and remand for proceedings consistent with this opinion.  Case: 16-20546 Document: 00514306629 Page: 2 Date Filed: 01/12/2018 No. 16-20546 I. BACKGROUND George Kaleh and Paul Buchanan (Texas residents) solicited Western-Southern Life Assurance Company (an Ohio resident) to finance the development of “the Meritage,” a luxury apartment complex to be built in Houston, Texas. Kaleh and Buchanan formed three similarly-named entities for the purpose of borrowing funds: Sedona Apartments, LP; Sedona Apts GP, LLC; and Sedona Investors, L.P. The borrowing entities then secured two loans from Western. The parties segmented the loans in this manner to differentiate the interest rates—a lower interest rate for the less risky loan and a higher rate for the more risky loan. First, Sedona Apartments, LP, which held title to the Meritage property, signed the Construction Loan Agreement and a corresponding promissory note (referred to collectively as the “Construction Loan”) in exchange for $22,738,000. The parties secured the Construction Loan by a deed of trust for the Meritage property. Second, Sedona Apts GP, LLC and Sedona Investors, L.P. signed the Mezzanine Loan Agreement and a corresponding promissory note (referred to collectively as the “Mezzanine Loan”) in exchange for $6,139,200. The collateral for the Mezzanine Loan is disputed, see infra § B.3, but the loan documents clarify the collateral was a pledge of 100% of the membership interest in Sedona Apts GP, LLC and 100% of the partnership interest in Sedona Investors, L.P, which together accounted for 100% of the equitable interest in Sedona Apartments, LP. The loan agreements each contained a Texas choice-of-law clause. 1 Next, Kaleh signed three personal guarantees. First, Kaleh guaranteed the debt under the Construction Loan (the “Construction Guarantee”). Second, 1 The parties later amended both loan agreements in ways immaterial to this dispute. 2  Case: 16-20546 Document: 00514306629 Page: 3 Date Filed: 01/12/2018 No. 16-20546 Kaleh guaranteed the debt under the Mezzanine Loan (the “Mezzanine Guarantee”). Both guarantees further obligated Kaleh’s payment of (1) property insurance; (2) real estate taxes; (3) unremitted security deposits; and (4) attorney’s fees incurred by Western. Finally, Kaleh guaranteed completion of the project (the “Completion Guarantee”), or more specifically, (1) completed construction of the Meritage; (2) payment of labor and service fees; (3) payment of budget overruns; (4) presentation of the Meritage without liens; and (5) payment of attorney’s fees incurred by Western. Each guarantee contained an Ohio choice-of-law clause. On April 16 and 17, 2009, Western sent the borrowers and Kaleh notices of default on the two loans, stating an intent to deem the notes due and payable if default went uncured. On August 11, 2009, Western delivered notice of acceleration of the debts. The following month, Western foreclosed on the membership interests secured by the Mezzanine Loan, purchased the interests, and took control of the property. Later, in December 2009, Western foreclosed on the Meritage itself and purchased the property for $18,000,000. Western then sought to complete construction of the Meritage and incurred various costs in doing so. In June 2010, Western demanded payment from Kaleh. Three years later, on June 26, 2013, Western sued Kaleh for breach of the guarantees, claiming damages for the unpaid balance of the loans, post-foreclosure construction costs, settlement of construction liens, unpaid insurance premiums, unpaid property taxes, unremitted security deposits, and attorney’s fees. 2 Western paid those attorney’s fees to Baker Botts (for assisting in the 2 For organizational purposes, this opinion will refer to Western’s claims as (1) the Construction Guarantee claim; (2) the Mezzanine Guarantee claim; and (3) the Completion Guarantee claim. 3  Case: 16-20546 Document: 00514306629 Page: 4 Date Filed: 01/12/2018 No. 16-20546 foreclosure and lien settlements), Frost Brown & Todd (for assisting in the foreclosure and related Ohio litigation), and Vorys, Sater, Seymour, and Pease (for conducting the present litigation and appeal). The district court held a bench trial and issued findings of fact and conclusions of law. The court held all three of Western’s breach-of-guarantee claims were timely. The court then found liability on each claim and awarded Western $2,537,561.78 for the unpaid debt under the two loans (crediting the value of the property), and $1,306,177.44 for unpaid liens, property taxes, security deposits, and insurance premiums. But the court denied Western a vast majority of its $925,956 in attorney’s fees 3 and all of its $619,981 in post-foreclosure construction costs. Kaleh appealed, challenging the timeliness of Western’s various claims. And Western cross-appealed, challenging the denial of its attorney’s fees and post-foreclosure construction costs. II. STANDARD OF REVIEW In the wake of a bench trial, “findings of fact are reviewed for clear error and legal issues are reviewed de novo.” In re Mid-S. Towing Co., 418 F.3d 526, 531 (5th Cir. 2005). “A finding is clearly erroneous if it is without substantial evidence to support it, the court misinterpreted the effect of the evidence, or this court is convinced that the findings are against the preponderance of credible testimony.” Becker v. Tidewater, Inc., 586 F.3d 358, 365 (5th Cir. 2009). This diversity case involves a couple of Erie guesses. “When making an Erie guess, [o]ur task is to attempt to predict state law, not to create or modify it.” SMI Owen Steel Co. v. Marsh USA, Inc., 520 F.3d 432, 442 (5th Cir. 2008) 3 The court did, however, award Western $41,700 in appellate attorney’s fees, a sum Kaleh does not challenge on appeal and that we leave undisturbed. 4  Case: 16-20546 Document: 00514306629 Page: 5 Date Filed: 01/12/2018 No. 16-20546 (alteration in original). We look first to cases from the relevant state’s Supreme Court that, “while not deciding the issue, provide guidance as to how the [Court] would decide the question before us.” Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel, L.L.C., 620 F.3d 558, 564 (5th Cir. 2010). And “we also consider those decisions of [the state’s] appellate courts in determining how the [state] Supreme Court would rule on th[e] issue.” Id. at 566. III. DISCUSSION A. The Governing Law We must first stake out the governing law. Kaleh points to the underlying loan documents as mandating Texas law across the board, whereas Western offers the guarantees’ Ohio choice-of-law clauses as the operative provisions. The district court forged its own path, applying Ohio substantive law and Texas procedural law. We agree with the district court. In this diversity action, we look to Texas (the forum state) for the choice-of-law principles necessary “to determine which substantive law will apply.” Weber v. PACT XPP Techs., AG, 811 F.3d 758, 770 (5th Cir. 2016). Texas will enforce a choice-of-law clause unless (1) “the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice” or (2) the chosen law would be “contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which . . . would be the state of applicable law in the absence of an effective choice of law by the parties.” Exxon Mobil Corp. v. Drennen, 452 S.W.3d 319, 324–25 (Tex. 2014) (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187(2) (1971)). Neither side argues the choice-of-law clauses before us are unenforceable under the preceding rubric. Nor do the parties argue the clauses 5  Case: 16-20546 Document: 00514306629 Page: 6 Date Filed: 01/12/2018 No. 16-20546 are nullified by an irreconcilable conflict. Instead, we are left to pick between the two. The Supreme Court of Texas has yet to face the specific question posed in this case, but we are nevertheless confident Texas law dictates that the guarantees’ choice of law governs the substantive components of this lawsuit. 4 We start with a basic Texas principle: “A guaranty is a separate contract distinct from the primary obligation.” Ashcraft v. Lookadoo, 952 S.W.2d 907, 913 (Tex. App. 1997). Kaleh offers no authority for deviating from that principle and disregarding the law of the guarantees (contracts he signed personally and which govern Western’s lawsuit directly) in favor of the law of the loan documents (contracts he did not sign personally and which supply only the underlying liability). And, in fact, the intermediate Texas case to address this question head-on holds contrary to Kaleh’s proposition. See Georgetown 4 Although this court has not answered the precise question either, the topic is not unfamiliar. First, in Resolution Trust Corp. v. Northpark Joint Venture, 958 F.2d 1313, 1318– 19 (5th Cir. 1992), this court applied the chosen law of the promissory note over the chosen law of the deed of trust. Some years later, in a more factually analogous breach-of-guarantee case, this court confronted divergent choice-of-law provisions in the deed of trust and guarantee agreements. Int’l Interest, L.P. v. Hardy, 448 F.3d 303, 307–308 (5th Cir. 2006). Instead of resolving that conflict, the Hardy panel certified the question to the Supreme Court of Texas. Id. But, before the Court could answer, the parties settled and we dismissed the appeal. Oddly enough, neither party mentions Hardy, let alone requests certification. Though we are mindful of the Hardy panel’s decision to certify the question, we do not feel the need to do so here. Hardy’s trepidation arose from the advent of TEX. PROP. CODE § 51.003, a 1993 anti-deficiency statute discussed in some detail below. See infra § B.1–3. Specifically, the Hardy panel was concerned that enforcing a generic choice-of-law clause to effectively waive section 51.003’s substantive protections might be unenforceable as inconsistent with Texas policy. 448 F.3d at 308. Yet, neither party here argues the choice-of- law clauses are unenforceable in light of section 51.003. And, more importantly, the Supreme Court of Texas has since addressed waiver of section 51.003’s substantive components, concluding that a party may waive its anti-deficiency protections with nothing more than a generic disclaimer of “any defense.” Moayedi v. Interstate 35/Chisam Rd., 438 S.W.3d 1, 3, 6–8 (Tex. 2014). In other words, section 51.003 no longer casts the same shadow over the viability of a choice-of-law clause, and the impetus for Hardy’s certification has since been alleviated. 6  Case: 16-20546 Document: 00514306629 Page: 7 Date Filed: 01/12/2018 No. 16-20546 Assocs., Ltd. v. Home Fed. Sav. & Loan Ass’n, 795 S.W.2d 252, 253–54 (Tex. App. 1990). There, the court applied the chosen law of the guarantee over a conflicting clause in the promissory note. See id. at 253 (“[T]he Guaranty on its face selects Texas law, and that choice should be respected. A plaintiff is entitled to sue on whatever obligation it chooses—here, the Guaranty.”). Kaleh is thus bound by his guarantees, and Ohio substantive law governs. Entirely separate, however, is the question of what procedural law to apply. Texas’s rule is simple: “Even if a contract contains a choice-of-law provision in which the parties have agreed to apply the law of a different state, [Texas] as the forum will apply [its] own law to matters of remedy and procedure.” Man Indus. (India), Ltd. v. Midcontinent Express Pipeline, LLC, 407 S.W.3d 342, 352 (Tex. App. 2013) (quoting Autonation Direct.com, Inc. v. Thomas A Moorehead, Inc., 278 S.W.3d 470, 472 (Tex. App. 2009)). The district court was right to apply Texas procedural law. B. The Timeliness of Western’s Claims We are tasked first with analyzing the timeliness of Western’s claims. Texas procedural law in hand, we look for a Texas statute of limitations. The parties offer two candidates. The first is TEX. PROP. CODE § 51.003(a), which imposes a two-year limitations period: If the price at which real property is sold at a foreclosure sale under Section 51.002 is less than the unpaid balance of the indebtedness secured by the real property, resulting in a deficiency, any action brought to recover the deficiency must be brought within two years of the foreclosure sale and is governed by this section. TEX. PROP. CODE § 51.003(a). And the second is TEX. CIV. PRAC. & REM. CODE § 16.004(a)(3), which contains a generic four-year limitations period: “A person must bring suit on [a debt] not later than four years after the day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE. § 16.004(a)(3). 7  Case: 16-20546 Document: 00514306629 Page: 8 Date Filed: 01/12/2018 No. 16-20546 1. Is section 51.003(a)’s two-year limitations period procedural or substantive? The district court recognized that Texas usually treats statutes of limitations as procedural devices. Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4 (Tex. 1999). But, with respect to section 51.003(a), the court applied a narrow caveat: when a statute creates both the right of action and the statute of limitations, Texas treats the limitations period as substantive. Concluding that “the two-year limitations period to sue on the deficiency is expressly contained within the subsection of the statute creating the right to sue to recover the deficiency,” the court deemed section 51.003(a) substantive and thus inapplicable to Western’s claims. The court’s recitation of Texas law was correct; Texas has long recognized that certain limitations periods are outside of the default procedural category. The exception emanates most prominently from California v. Copus, 309 S.W.2d 227, 231 (Tex. 1958). There, the Supreme Court of Texas explained, “where the statute creates a right and also incorporates a limitation upon the time within which the suit is to be brought, the limitation qualifies the right so that it becomes a part of the substantive law rather than procedural.” Id. It continued, “[w]here by statute a right of action is given which did not exist by the common law, and the statute giving the right fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition on such right, and will control, no matter in what forum the action is brought.” Id. (quoting 15 C.J.S. Limitation of Actions § 30). We disagree, however, that the Copus exception applies to section 51.003(a). Contrary to the district court’s characterization, section 51.003 does not create the right to sue to recover a deficiency—it creates no cause of action 8  Case: 16-20546 Document: 00514306629 Page: 9 Date Filed: 01/12/2018 No. 16-20546 at all. Texas courts have acknowledged as much, explaining that section 51.003 “does not create the right to bring an action for a deficiency; it merely regulates a right that apparently existed at common law,” or in other words, section 51.003 “merely places a procedural limitation on a traditional common-law right of action.” Trunkhill Capital, Inc. v. Jansma, 905 S.W.2d 464, 468 (Tex. App. 1995); see also Colvest Mortg., Inc. v. Clark, No. 05-95-00989-CV, 1996 WL 429300, at *3 (Tex. App. July 23, 1996) (observing the same). Western does little to rebut this truth and chooses to defend the district court’s decision on a different theory: Section 51.003 creates a host of other substantive rights, and we should not excise the two-year limitations period from such a “substantive unified statutory scheme.” Sure enough, section 51.003 creates several substantive rights. See Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 6 (Tex. 2014). Among them, subsection (b) provides the defendant a right to request a fair-market-value determination, subsection (c) provides the defendant a right to offset against the deficiency, and subsection (d) credits insurance proceeds to the account of the borrower in certain situations. TEX. PROP. CODE. §§ 51.003(b)–(d). But Western’s reliance on the statute’s creation of any substantive right fundamentally misunderstands Copus. The Supreme Court of Texas spoke not of any old right but of the right (the only right) a statute of limitations “qualifies”—the “right of action.” Copus, 309 S.W.2d at 231. Section 51.003(a)’s limitations period qualifies the plaintiff’s right to seek a deficiency judgment, a cause of action we have already established exists independent of the statutory scheme. But the limitations period in no way qualifies the defendant’s right to assert offset or valuation defenses; the substantive and procedural matters exist independently, albeit under the same statutory roof. 9  Case: 16-20546 Document: 00514306629 Page: 10 Date Filed: 01/12/2018 No. 16-20546 Western’s authority only serves to crystalize section 51.003(a)’s procedural nature. See Chase Manhattan Bank v. Greenbriar N. Section II, 835 S.W.2d 720, 727 (Tex. App. 1992); Bank of Okla., N.A. v. Red Arrow Marina Sales & Serv., Inc., 224 P.3d 685, 696 (Okla. 2009). Both of these cases dealt with anti-deficiency statutes distinct from section 51.003. Chase, 835 S.W.2d at 727; Red Arrow, 224 P.3d at 689. And while both cases involved pre-suit time periods, the periods were not statutes of limitations at all but were instead “condition[s] precedent”—substantive elements of the respective deficiency claims. Chase, 835 S.W.2d at 724–25; Red Arrow, 224 P.3d at 696. To make matters even more clear, Red Arrow explained that the condition before it “differ[ed] vastly” from “an ordinary statute of limitations” because the latter “regulates merely the time for the commencement of an action.” 224 P.3d at 696 n.38. Section 51.003(a) does exactly that by regulating the time in which an action “must be brought.” TEX. PROP. CODE. § 51.003(a). It is therefore a quintessential statute of limitations within the ambit of default procedural characterization. 2. Did Kaleh waive his section 51.003(a) statute-of-limitations defense? Having lost the substantive-versus-procedural battle, Western seeks to limit section 51.003(a)’s effective reach. Western claims first that Kaleh outright waived section 51.003(a) via the following language from each of the three guarantees: No setoff, counterclaim, reduction or diminution of any obligation, or any defense of any kind or nature, that Guarantor has or may have in the future against Borrower, or that Borrower has or may have in the future against Lender, will be available hereunder to Guarantor against Lender. The district court rejected this argument, reading the above provision to waive only defenses the borrower may have against the lender, not those “that might 10  Case: 16-20546 Document: 00514306629 Page: 11 Date Filed: 01/12/2018 No. 16-20546 be independently available to the guarantor against the lender.” That reading was unduly narrow given our decision in LaSalle Bank National Association v. Sleutel, 289 F.3d 837, 840–42 (5th Cir. 2002), in which we applied a similar provision to waive a guarantor’s right to assert a defense directly against a lender. But the district court’s ultimate conclusion stands. Assuming for the sake of argument that the scope of Kaleh’s waiver was broad enough to capture limitations, it was void under Texas law. Duncan v. Lisenby, 912 S.W.2d 857, 858–59 (Tex. App. 1995) (explaining that “[a] general agreement in advance to waive” limitations is void and that the waiver “must be specific and for a pre- determined length of time” to be enforceable); see also Titus v. Wells Fargo Bank & Union Trust Co., 134 F.2d 223, 224 (5th Cir. 1943). Kaleh did not waive his two-year limitations defense. 3. What is the breadth of section 51.003(a)’s application? At this juncture, where section 51.003(a) is both procedural and not waived, Western acknowledges that its claim to recover the unpaid balance of the Construction Loan is governed by the two-year limitations period. 5 And there is no question Western filed its suit more than two years after its December 2009 foreclosure on the Meritage property. Western’s claim to recover unpaid debt under the Construction Loan was therefore time-barred, and the district court erred in holding otherwise. See TEX. PROP. CODE § 51.003(a) (requiring suit “be brought within two years of the foreclosure sale”). 5 To the extent TEX. PROP. CODE § 51.003(a) and TEX. CIV. PRAC. & REM. CODE § 16.004(a)(3) both apply to the same claim, “the more specific time limit controls.” Valdez v. Hollenbeck, 465 S.W.3d 217, 227 (Tex. 2015); see also Sowell v. Int’l Interests, LP, 416 S.W.3d 593, 599 (Tex. App. 2013) (applying section 51.003(a) over section 16.004(a)(3) when the two conflicted). 11  Case: 16-20546 Document: 00514306629 Page: 12 Date Filed: 01/12/2018 No. 16-20546 But Western suggests the effect of section 51.003(a) goes no further. This is so, Western says, because the two-year limitations period applies only to suits to recover “indebtedness secured by the real property.” Id. And unlike the Construction Guarantee claim, Western continues, the Mezzanine and Completion Guarantee claims did not involve debt secured by real property. 6 We agree with Western on this point. First, the Completion Guarantee involved neither debt nor collateral; it simply created a set of ongoing personal obligations related to the project’s completion. Without a debt collateralized by real property, section 51.003(a) could not apply to Western’s Completion Guarantee claim. See Drieling v. Sec. State Bank & Trust, No. 01-14-00257- CV, 2015 WL 1020212, at *3 (Tex. App. Mar. 5, 2015) (explaining that section 51.003(a) does not apply when the note is not collateralized by real property). The Mezzanine Guarantee did, however, involve an underlying debt: the Mezzanine Loan. The precise identity of the Mezzanine Loan’s collateral is hotly contested on appeal. Western argues the loan was secured not by real property but by a pledge of the ownership interest in the borrower entities. Kaleh counters that the loan was secured by the Meritage property itself and Western is “barred from arguing otherwise on appeal.” Kaleh advances his quasi-estoppel argument by pointing to various instances in the record where Western referred to the Mezzanine Loan as “secured by a Deed of Trust” or “secured by the same collateral” as the Construction Loan. Western responds 6 Western argues also that because section 51.003(a) applies only to claims for a “deficiency judgment”—that is, claims for the unpaid balance of the indebtedness—it is inapplicable to the remainder of Western’s non-deficiency damages (for unpaid property taxes, security deposits, etc.) under the Construction Guarantee. Kaleh counters that all of these measures of damages were identified by the Construction Loan’s deed of trust and thus covered by section 51.003(a). But, because the Mezzanine Guarantee independently guaranteed each of these measures of damage, and because we conclude section 51.003(a) does not apply to the Mezzanine Guarantee, we need not reach Western’s argument or Kaleh’s rebuttal. 12  Case: 16-20546 Document: 00514306629 Page: 13 Date Filed: 01/12/2018 No. 16-20546 in kind with its own citations to the record, where it clarified that the Mezzanine Loan was “secured separately . . . by the . . . member’s interest in that borrowing entity” or “by a pledge of ownership interest in the borrowers.” At most, this quarrel indicates the parties referred to the Mezzanine Loan’s collateral in an inconsistent, sometimes self-contradictory manner. In other words, the muddled record created a dispute about the collateral’s true identity. But this is a dispute the parties already litigated and the district court already resolved when it concluded the Mezzanine Loan was secured not by real property but “by a pledge of the ownership interests the respective borrowers had in the Meritage.” In so deciding, the court cited (and only cited) the language of the Mezzanine Loan documents themselves, which unambiguously identify the pledge of various membership interests as the relevant collateral. Under Ohio law, the district court was on sure footing to rely on the language of the loan documents in lieu of the parties’ extraneous characterizations. See Aultman Hosp. Ass’n v. Comty. Mut. Ins. Co., 544 N.E.2d 920, 924 (Ohio 1989) (“[C]ourts will not give the contract a construction other than that which the plain language of the contract provides.”). In turn, we do not find clear error, and we will not disturb the court’s finding on appeal. 4. Were Western’s Mezzanine and Completion Guarantee claims timely? Because neither the Mezzanine Guarantee claim nor the Completion Guarantee claim sought to recover debt secured by real property, we withhold application of TEX. PROP. CODE § 51.003(a) and subject those claims to the generic four-year limitations period found in TEX. CIV. PRAC. & REM. CODE § 16.004(a)(3). In that respect, the district court found Western’s claims timely. The court so held because it identified a timely accrual date of June 30, 2010, the day Western demanded payment from Kaleh. 13  Case: 16-20546 Document: 00514306629 Page: 14 Date Filed: 01/12/2018 No. 16-20546 On appeal, Kaleh offers no explanation for how the Completion Guarantee claim—which involved completion-related costs ostensibly incurred after Western took control of the Meritage property in September 2009—could have accrued more than four years prior to Western’s June 2013 suit. Kaleh has therefore waived any challenge to the claim’s timeliness under the four- year limitations period, and we affirm the court’s timeliness finding in that respect. See Am. States Ins. Co. v. Bailey, 133 F.3d 363, 372 (5th Cir. 1998) (“Failure to provide any legal or factual analysis of an issue results in waiver.”). As for the Mezzanine Guarantee claim, however, Kaleh offers a specific, earlier accrual date: April 22, 2009, the day the borrowers failed to cure following a notice of default. If we were to accept this date, Western’s claim to recover unpaid indebtedness under the Mezzanine Guarantee would be untimely. We turn to the Texas accrual framework. In Texas, “[a] claim for breach of contract accrues when the contract is breached.” Cosgrove v. Cade, 468 S.W.3d 32, 39 (Tex. 2015). More specific to the suit-on-a-debt context, “[i]f demand is an integral part of a cause of action or a condition precedent to the right to sue, the statute of limitations does not begin to run until demand is made, unless demand is waived or unreasonably delayed.” Wiman v. Tomaszewicz, 877 S.W.2d 1, 5 (Tex. App. 1994) (emphasis added). The question therefore becomes: did the Mezzanine Guarantee waive the need for demand? An examination of the “WAIVERS” provision in the guarantee itself answers the question in the affirmative: “[N]otice of default . . . demand for payment, notice of demand . . . are hereby waived.” Western’s citation to the word “demand” elsewhere in the guarantee does nothing to negate Kaleh’s unequivocal waiver. As a result, the district court’s demand-based June 2010 date was improper. Wiman, 877 S.W.2d at 5. 14  Case: 16-20546 Document: 00514306629 Page: 15 Date Filed: 01/12/2018 No. 16-20546 Even so, the district court acknowledged the possibility that Kaleh waived demand, and it bootstrapped its conclusion with an alternative accrual date: September 28, 2009, the day Western foreclosed on the Mezzanine Loan. The court picked this date because it held “the respective default on the underlying [Mezzanine] loan did not occur until the [September] foreclosure.” But that premise is unsupported by the record; Western notified the borrowers on April 17, 2009 that the Mezzanine Loan “is now in default.” It is only natural that the borrowers’ default predated foreclosure because a lender has “no right to foreclosure” until the borrower defaults. Roberts v. Burkett, 802 S.W.2d 42, 46 n.3 (Tex. App. 1990). As a consequence, September 28, 2009 was similarly inapt as an accrual date. Having disagreed with both of the district court’s accrual dates, we confront a final timely alternative supplied by Western: August 11, 2009, the day Western delivered notice of acceleration of the debt. Western points us to the Texas framework summarized by Boren v. United States National Bank Association, 807 F.3d 99, 104 (5th Cir. 2015). There, we explained that when a promissory note “contains an optional acceleration clause . . . the action accrues when the holder actually exercises its option to accelerate.” Id. (quoting Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001)). A lender must generally send two forms of notice to exercise this option: (1) “a notice of intent to accelerate” and (2) “a notice of acceleration.” Id. Western lobbies for affirmance under Boren because, though it sent a notice of default and intent to accelerate in April 2009, it did not effectuate the second prong of the equation until it sent the August 2009 notice of acceleration. While Western is correct that the Mezzanine Loan’s promissory note contains an acceleration clause, Western neglects an important caveat to the Boren framework: a note maker can waive either of the default steps for 15  Case: 16-20546 Document: 00514306629 Page: 16 Date Filed: 01/12/2018 No. 16-20546 acceleration. See Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 893–94 (Tex. 1991) (“[A] waiver of ‘notice of intent to accelerate’ is effective to waive that right,” and “[w]aiver of ‘demand’ or ‘presentment’, and of ‘notice’ or ‘notice of acceleration’, in just so many words, is effective to waive presentment and notice of acceleration.”). The parties’ discussion of this particular waiver issue is minimal; Kaleh suggests offhand that the loan documents waived notice of acceleration, and Western leaves the issue entirely unaddressed. The answer to that question is naturally of great importance to picking between the April and August accrual dates, and it thus bears on the ultimate question of timeliness. We decline, however, to pick between the two dates at this juncture because the district court never reached the waiver question. See Stephens v. Witco Corp., 198 F.3d 539, 542–43 (5th Cir. 1999) (declining to affirm on an alternate legal theory when “questions of fact remain . . . that must be resolved before” the law could be applied). We therefore instruct the district court, on remand, to pass first judgment on the waiver question and to then evaluate the Mezzanine Guarantee claim’s timeliness in light thereof. 7 C. Attorney’s Fees Having resolved Kaleh’s appeal, we turn now to Western’s cross-appeal. Western raises two issues: (1) whether the district court correctly denied the lion’s share of Western’s attorney’s fees and (2) whether the district court correctly denied Western’s post-foreclosure construction costs. We must 7 We note further that because the district court found the Mezzanine Guarantee claim timely in all respects, it had no need to discern whether the non-loan liabilities stemming from the Mezzanine Guarantee (unpaid insurance, real estate taxes, and security deposits) should be subject to the same accrual date as the claim to recover the loan balance. Depending on the district court’s answer to the waiver question, it is free to evaluate the issue for the first time on remand. 16  Case: 16-20546 Document: 00514306629 Page: 17 Date Filed: 01/12/2018 No. 16-20546 address each issue because both measures of damages are anchored on Western’s Completion Guarantee claim, a claim we affirmed above as timely. See supra, § B.4. Applying Ohio substantive law, “the trial court[’s] determination [on attorney’s fees] should not be reversed absent a showing that the court abused its discretion.” Bittner v. Tri-County Toyota, Inc., 569 N.E.2d 464, 467 (Ohio 1991). At the same time, the trial court’s “legal determination[s]” are subject to de novo review. State ex rel. DiFranco v. City of S. Euclid, 7 N.E.3d 1146, 1148 (Ohio 2014). The attorney’s-fees issue here is two-pronged. Substantively, did Western’s proof of fees suffice under Ohio law? And procedurally, should the district court have denied Western’s request to prove up fees as “costs” at a post-trial hearing? 1. Did Western’s fee evidence suffice? We address first the sufficiency of Western’s fee evidence. The Erie question largely boils down to this: Under Ohio law, must a fee claimant produce evidence of hours actually billed, rate actually charged, and work done, or may a claimant simply describe the task performed, offer the total bill incurred, and provide testimony that a reasonable rate and reasonable amount of hours would approximate the total? The district court found Ohio law requires the former, and because Western’s evidence largely took the form of the latter, the court denied fees (save appellate fees). The Supreme Court of Ohio has yet to outline the threshold for proof of attorney’s fees in this particular respect, so we are left to venture an Erie guess. We begin with Bittner, in which the Supreme Court of Ohio solidified the state’s acceptance of the lodestar method. 569 N.E.2d at 466. That is to say, Ohio determines “the amount of a reasonable fee” by examining “the number of hours reasonably expended on the litigation multiplied by a reasonable 17  Case: 16-20546 Document: 00514306629 Page: 18 Date Filed: 01/12/2018 No. 16-20546 hourly rate,” subject to a host of modifying factors. Id. Although the Bittner Court did not go on to say whether the claimant must offer proof of hours worked and rate charged, 8 it did cite heavily from Hensley v. Eckerhart, 461 U.S. 424 (1939). See Bittner, 569 N.E.2d at 466–467 (citing Hensley, 461 U.S. at 424). Hensley contains, among other things, a command familiar to federal- law practitioners: “The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.” 461 U.S. at 433 (emphasis added). Bittner does not cite this specific proposition from Hensley, but its reliance on Hensley’s approach indicates to us that the Supreme Court of Ohio would likely accept the evidentiary principles therein. 9 Bittner aside, our evaluation of Ohio intermediate caselaw brings us to the same conclusion. The parties rely principally on two divergent cases. First is In re Estate of Wood, 379 N.E.2d 256, 260 (Ohio Ct. App. 1977), in which an Ohio court upheld a fee award for an estate lawyer because the attorney “introduced sufficient evidence of the services performed and of the reasonable value of such services” and the court found no precedent “which would require an attorney to set forth the time he has expended.” On the other side of the spectrum is Unick v. Pro-Cision, Inc., No. 05CV1401, 2011 WL 1005429, at *1, *5, *7 (Ohio Ct. App. Mar. 16, 2011), in which the fee claimant “failed to provide evidence of the rates or hours worked by his attorneys,” and the court denied 8 Bittner did, however, make specific note of the fact that the “attorneys submitted well-documented time reports detailing the amount of time they spent preparing for trial” along with “testimony regarding the number of hours worked and their hourly rates of recompense.” 569 N.E.2d at 466. 9 In fact, the Sixth Circuit has cited the proof-of-hours-and-rate requirement from Hensley when evaluating attorney’s fees under Ohio law. Yellowbook, Inc. v. Brandeberry, 708 F.3d 837, 848 (6th Cir. 2013) (citing Hensley, 461 U.S. at 437). 18  Case: 16-20546 Document: 00514306629 Page: 19 Date Filed: 01/12/2018 No. 16-20546 fees because the claimant “b[ore] the burden of initially proving the number of hours an attorney spent on his case [and] the hourly rate that the attorney charges.” (citing Hensley, 461 U.S. at 434); see also Pracker v. Dolan, No. 94-G-1867, 1995 WL 301455, at *4 (Ohio Ct. App. Apr. 21, 1995) (reversing a fee award when the claimant submitted only the total hours billed but not the hours spent for any particular service). We conclude Unick more accurately represents Ohio’s contemporary approach for two reasons. First, Wood predates the Supreme Court of Ohio’s opinion in Bittner (and its corresponding reliance on Hensley). And second, in the relatively short time span since Unick, five other Ohio appellate courts— including the same one that authored Wood—have cited Unick for the very proposition at issue: proof of reasonable fees requires proof of work done, hours billed, and rate charged. 10 In light of Unick, we do not find the district court’s thorough review to be an abuse of discretion. With respect to fees paid to Baker Botts and Frost Brown & Todd, Western submitted only testimony of the service performed, the total invoice, and an estimate that a reasonable hypothetical rate and a reasonable number of hypothetical hours would approximate that total. Western’s evidence left the district court to “speculate or surmise how much time was involved for related services,” and ultimately, whether the fees actually incurred were reasonable. Unick, 2011 WL 1005429, at *4. Western’s evidence with respect to fees owed to trial counsel, Vorys, Sater, Seymour, and 10 See Se. Land Dev., Ltd. v. Primrose Mgmt. L.L.C., 952 N.E.2d 563, 573–74 (Ohio Ct. App. 2011); Arnett v. Bardonaro, No. 25371, 2013 WL 1189009, at *11 (Ohio Ct. App. Mar. 22, 2013); Columbus Truck & Equip. Co. v. L.O.G. Transp., Inc., No. 12AP-223, 2013 WL 3341175, at *4 (Ohio Ct. App. June 27, 2013); Berryhill v. Khouri, No. 100173, 2014 WL 6065684, at *6 (Ohio Ct. App. Nov. 13, 2014); Kevin J. Kenney & Assocs., Ltd. v. Smith, No. L-14-1146, 2015 WL 1510858, at *4 (Ohio Ct. App. Mar. 31, 2015). 19  Case: 16-20546 Document: 00514306629 Page: 20 Date Filed: 01/12/2018 No. 16-20546 Pease, was closer to sufficient, but it ultimately suffered from the same basic flaw. Western offered testimony of services performed, total fees incurred, rates of some of the lawyers who worked on the case (but not all of them), and total hours billed. But Western did not connect any of those components, meaning the court was again left to speculate what work was performed, at what rate, and for how many hours. That, too, was insufficient. See Pracker, 1995 WL 301455, at *4 (reversing fee award when the claimant submitted only total hours billed but did not provide hours spent for any particular service). To conclude this issue, Western points out that the reason the district court awarded appellate fees was because those “fees have not yet been incurred, [and] the only evidence that could prove the reasonableness is expert testimony” in the form of a future estimate. As such, Western argues it is at the very least entitled to trial fees not yet incurred at the time its expert gave his estimates. However, assuming Ohio law permits proof of future fees by way of estimated hours and rates, we still affirm the district court’s denial. This is so because Western’s expert did not segregate his blanket “September 2015 to October 2015” estimate—which spanned both pre-trial work and estimated trial work—between those fees attributed to work already done (for which Western’s proof did not satisfy the Unick rule) and work to be done in the future. As a consequence, the district court’s denial of fees was not error. 2. Is the court’s decision to require proof of fees at trial reversible error? Western argues further that we must reverse and remand even if its initial proof of fees did not suffice. More specifically, Western contends Federal Rule of Civil Procedure 54 entitled it to prove up its fees post-trial, or in other words, that it should have been allowed to “supplement” its initial proof of fees with “additional evidence.” Rule 54 provides in relevant part: “A claim for attorney’s fees and related nontaxable expenses must be made by motion 20  Case: 16-20546 Document: 00514306629 Page: 21 Date Filed: 01/12/2018 No. 16-20546 unless the substantive law requires those fees to be proved at trial as an element of damages.” FED. R. CIV. P. 54(d)(2)(A). The district court concluded Western’s attorneys’ fees sounded in “damages” under Ohio law and thus required proof of such fees at trial. Western disagrees, suggesting the fees are better characterized as “costs” under Ohio law. Rule 54’s damages-versus-costs distinction arises with relative infrequency in this circuit, but when it does, it typically involves a party who first moves for attorney’s fees as costs after trial. E.g., Richardson v. Wells Fargo Bank, N.A., 740 F.3d 1035, 1037 (5th Cir. 2014); Williams v. Wells Fargo Bank, N.A., 560 F. App’x 233, 245 (5th Cir. 2014) (per curiam). In that situation, when the district court erroneously classifies the fees as “damages” and denies the post-trial motion, it effectively deprives the fee-claimant of his or her only opportunity to prove attorney’s fees, and we find reversible error. Richardson, 740 F.3d at 1040. This case differs. The attorney’s-fees issue surfaced early on, the district court placed Western on notice of the need to come forward at trial with evidence of attorney’s fees, Western presented such evidence, and the court ruled on the sufficiency of that evidence. Western was neither deprived of the opportunity to prove up fees (like the claimant in Richardson) nor was Western required to makes its case to the incorrect fact-finder—in the bench-trial context, the court will evaluate fees either way. See Circle Y Constr., Inc. v. WRH Realty Servs., Inc., 427 F. App’x 772, 777 (11th Cir. 2011) (per curiam) (finding no reversible error when a district court allowed a post-bench-trial Rule 54 motion because “the district court provided ample opportunity for both sides to present . . . their positions on the amount of fees that were due and to make a determination on the basis of that evidence”). Western received an opportunity to prove fees, and the proof it offered did not suffice. Thus, even if 21  Case: 16-20546 Document: 00514306629 Page: 22 Date Filed: 01/12/2018 No. 16-20546 the district court mischaracterized Western’s fees as “damages” under Ohio law, we perceive no harm in the process the district court employed, and we will not reverse and remand. D. Post-Foreclosure Construction Costs Finally, we evaluate whether Western was entitled to its post-foreclosure construction costs. The district court grounded its denial of those costs in three alternate holdings. We agree with the first and need go no further: the court held Western’s failure to prove that its costs adhered to the project’s “Plans and Specifications” foreclosed recovery. We review the legal component of that holding de novo. See Long Beach Ass’n, Inc. v. Jones, 697 N.E.2d 208, 209 (Ohio 1998) (characterizing contract construction as an issue of law). In pertinent part, Kaleh agreed under the Completion Guarantee to indemnify Western for costs and expenses “incurred . . . because of . . . the Project [not being] fully completed in accordance with the Plans and Specifications and the other provisions of the Loan Agreement, including without limitation the requirements of Section 4.13 of the Loan Agreement, and in conformity with existing zoning and other laws, ordinances and regulations.” Western contends the district court focused too narrowly on the “Plans and Specifications” phrase, and instead, the court should have permitted recovery under the “other provisions of the Loan Agreement” clause. Such “other provisions” cover things like damage or destruction, vandalism, and structural defects, to name a few. Western says its costs, regardless of whether they were tied to the “Plans and Specifications,” fall into one of these other categories. Yet, Western’s reading misunderstands the structure of the guarantee. In the most basic sense, Kaleh agreed to ensure that the Meritage project was “completed.” Phrased from the lender’s perspective, Western was entitled to 22  Case: 16-20546 Document: 00514306629 Page: 23 Date Filed: 01/12/2018 No. 16-20546 recover costs incurred to make the project “complete.” But what does “completion” mean? The above provision, awkwardly phrased as it may be, provides the definition; it explains that completion requires the conjunctive coalescence of several things: (1) satisfaction of the project’s “Plans and Specifications” and (2) satisfaction of the “other provisions of the Loan agreement” and (3) satisfaction of other criteria not relevant here. See Clagg v. Baycliffs Corp., 695 N.E.2d 728, 731 (Ohio 1998) (explaining that “the word ‘and’ is usually interpreted in the conjunctive”). 11 Viewed through that lens, Western’s misstep becomes apparent. Western is indeed correct that costs incurred in remediating something covered by the “other provisions of the Loan agreement” could be recoverable. After all, a Meritage property with material damage, vandalism, or a structural defect is not “completed” under the terms of the guarantee. But, for Western to remediate the defect in a manner that completes the project, it must do so consistently (or, at least not inconsistently) with the remaining criteria for completion, including the project’s “Plans and Specifications.” Think about it by way of example. Imagine the borrowers left the Meritage’s pool house with vandalized ceiling lights and a cracked foundation, both defects presumably covered by the “other provisions.” Imagine further that the project’s plans called for a modest style of recessed lighting and a particular foundation with particular dimensions and a particular composition. Could Western then replace the lights with chandeliers, repair the foundation in a manner wholly inconsistent with the plans, and 11 Ohio courts (like most courts) are “permitted to interpret” the word “and” in the disjunctive “if the sense requires it,” that is, when it would be unreasonable to give the word its ordinary meaning. Clagg, 695 N.E.2d at 731. We, however, do not see the district court’s interpretation as unreasonable. 23  Case: 16-20546 Document: 00514306629 Page: 24 Date Filed: 01/12/2018 No. 16-20546 nevertheless recover its costs from Kaleh? No—those repairs would not complete the property as Kaleh guaranteed it. In other words, Kaleh (in this hypothetical) guaranteed a completed pool house of a particular type, and though the defects entitled Western to repair them, the manner of repair was not without qualification. It may very well be that Western conducted the bulk of its repairs and improvements in line with the project’s plans. The problem was a lack of proof. In short, because there was no evidence that the post-foreclosure construction complied with the “Plans and Specifications,” the district court was left to speculate as to whether that work in fact brought the project to contractual completeness. Without evidence of the plans and what they did (or did not) provide for, and with Western’s damages witness unable to identify the source or original authenticity of the plans or to tie the incurred costs to them, Western simply failed to prove its entitlement to recovery. We therefore agree with the district court’s interpretation of the contract, and we do not see its corresponding evaluation of the evidence as clearly erroneous. IV. CONCLUSION A summary of our decisions is as follows. First, the district court correctly identified the governing law. Second, the two-year limitations period in TEX. PROP. CODE § 51.003(a) is procedural and applies insofar as it bars Western’s claim for recovery of unpaid debt under the Construction Loan. Third, the district court shall evaluate on remand whether the Mezzanine Loan’s promissory note waived notice of acceleration, and in turn, shall examine the ultimate timeliness of the Mezzanine Guarantee claim and its constituent parts under the four-year limitations period. Fourth, we find the Completion Guarantee claim timely. Fifth, we uphold the district court’s denial of Western’s attorney’s fees. And sixth, we uphold the district court’s denial of 24  Case: 16-20546 Document: 00514306629 Page: 25 Date Filed: 01/12/2018 No. 16-20546 Western’s post-foreclosure construction costs. It will be up to the district court to recalculate damages upon resolution of the remaining issues. The judgment is vacated and the case is remanded for further proceedings consistent with this opinion. 25 

119 B.R. 727 (1990) In re Desmond Lee PAULINE, Debtor. Raymond CAREY, Chapter 7 Trustee, Appellant, v. Desmond Lee PAULINE, Appellee. BAP No. NC-90-1288-JAsV, Bankruptcy No. 1-89-00008. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted July 26, 1990. Decided October 25, 1990. David N. Chandler, Santa Rosa, Cal., for appellant. Douglas B. Provencher, Santa Rosa, Cal., for appellee. Before JONES, ASHLAND and VOLINN, Bankruptcy Judges. OPINION JONES, Bankruptcy Judge: I. OVERVIEW In response to a motion for abandonment, the bankruptcy court held that Raymond Carey ("Appellant Carey"), the Chapter 7 Trustee for Desmond Lee Pauline ("Debtor"), had sixty (60) days to find a party willing to buy the Debtor's home at a price sufficient to satisfy all of the liens on the home plus the allowed amount of the Debtor's homestead exemption. The court further held that if Appellant Carey did not find such a buyer the Debtor's home would be deemed abandoned. We affirm the court's order. II. FACTS The Debtor filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code on January 3, 1989. At the time of the filing, the encumbrances on the Debtor's home, including IRS tax liens and the Debtor's homestead exemption, totalled more than the petition-date value of the home. Six-months later, Appellant Carey determined that the Debtor's home should be abandoned. In a letter to a creditor of the Debtor dated August 23, 1990, Appellant Carey memorialized this determination by stating in the letter that he was "abandoning [his] trustee interest in the [home]." Notwithstanding his stated intention to abandon the home, Appellant Carey later reversed himself and decided to sell the home. When the Debtor found out that Appellant Carey intended to sell the home, the Debtor filed a motion urging the bankruptcy court to order the abandonment of the home. After considering the motion, *728 the bankruptcy court gave Appellant Carey sixty (60) days to find a buyer who would be willing to buy the home at a price sufficient to cover all of the liens on the home plus the allowed amount of the Debtor's homestead exemption. The bankruptcy court further stated that in the event no purchaser was found within the sixty day period the property would be deemed abandoned. Appellant Carey timely appealed. III. DISCUSSION We decline to overturn the bankruptcy court's decision for three reasons. First, Appellant Carey failed to object to the Debtor's homestead exemption claim within the thirty day time period established by Bankruptcy Rule 4003(b). As a result, the Debtor's homestead exemption became final with respect to any action which Appellant Carey might have taken against the Debtor's home. See In re Montgomery, 80 B.R. 385, 388 (Bankr.W.D.Tex.1987) ("[I]f no one objects within the time frame established by Bankruptcy Rule 4003(b)[, t]he debtor's entitlement to the [claimed] exemption . . . becomes invulnerable to later attack.") Second, Appellant Carey's reversal regarding the home was apparently triggered by a realization that if he sold the home, rather than abandoning it, he might be entitled to a trustee's fee on the funds used to satisfy the IRS's tax liens. As such, Appellant Carey's actions would appear to be startlingly similar to those types of property churning actions which 11 U.S.C. § 554 (1986) (the "Abandonment" section) was intended to address. See, e.g., Morgan v. K.C. Machine & Tool Co. (In re K.C. Machine & Tool Co.), 816 F.2d 238, 246 (6th Cir.1987) ("In enacting [section] 554, Congress was aware of the claim that formerly some trustees took burdensome or valueless property into the estate and sold it in order to increase their commissions. Some of the early cases condemned this particular practice[,] . . . and decried the practice of selling burdensome or valueless property simply to obtain a fund for their own administrative expenses." (citing Standard Brass Corp. v. Farmers Nat'l Bank, 388 F.2d 86 (7th Cir.1967); Miller v. Klein (In re Miller), 95 F.2d 441 (7th Cir. 1938); Seaboard Nat'l Bank v. Rogers Milk Products Co., 21 F.2d 414 (2d Cir. 1927))); see also In re Paolella, 79 B.R. 607, 609 (Bankr.E.D.Pa.1987) ("[T]he principle of abandonment was developed . . . to protect the bankruptcy estate from the various costs and burdens of having to administer property which could not conceivably benefit unsecured creditors of the estate." (citation omitted) (emphasis added)). Lastly, we note that the IRS never asked Appellant Carey to sell the home for its benefit. It is reasonable to assume that the IRS did not ask Appellant Carey to liquidate the IRS's tax liens on the Debtor's home because the IRS felt that it could liquidate the liens at least as efficiently as could Appellant Carey. IV. CONCLUSION Because the Debtor's homestead exemption is final with respect to the Trustee and because the Trustee has apparently engaged in a course of conduct designed to enhance the size of his bank account rather than the size of the funds available for the Debtor's unsecured creditors, we decline to overturn the bankruptcy court's decision.

688 F.2d 837 dU. S.v.Stafford 82-1110 UNITED STATES COURT OF APPEALS Fifth Circuit 9/7/82 1 N.D.Tex. AFFIRMED 2 --------------- d Local Rule 21 case.

Court of Appeals of the State of Georgia ATLANTA, February 15, 2017 The Court of Appeals hereby passes the following order A17D0257. JEAN B. ST. FELIX v. BAYVIEW LOAN SERVICING, LLC. Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby DENIED. LC NUMBERS: 2016CV00496 Court of Appeals of the State of Georgia Clerk's Office, Atlanta, February 15, 2017. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 

383 So.2d 146 (1980) L.L. BEACHAM, Jr. v. Mrs. Edith Russell BEACHAM. Nos. 51940, 51818. Supreme Court of Mississippi. April 30, 1980. Thomas J. Lowe, Jr., Joseph A. Gentile, Jackson, for appellant. L.L. Beacham, Jr., pro se. King & Spencer, Robert W. King, Jackson, for appellee. Before SMITH, P.J., and BROOM and COFER, JJ. SMITH, Presiding Justice, for the Court. On February 14, 1967, L.L. Beacham, Jr., appellant, obtained a divorce from appellee, Edith Russell Beacham upon the ground of habitual cruel and inhuman treatment. It was judicially established by the decree that it had been the misconduct of Edith Russell Beacham that was the ground for the divorce, and that L.L. Beacham, Jr. was the aggrieved party. The minor children born of the marriage, who were living with their mother at the time, were allowed to remain with her under the decree. For the support of the children Beacham was directed to pay $200.00 each a month and, in addition, he was directed to pay to their mother $425.00 per month as alimony. Beacham has made the payments required of him for the support of the children who have now reached majority. And, although not all payments have been made on time, he has also paid $425.00 per month to Mrs. Beacham as ordered in the original divorce decree, with the possible exception of some interest on delayed installments. The situation with regard to these alimony payments has continued unchanged since the original divorce decree in February, 1967, a period of some thirteen years, although Beacham has tried, unsuccessfully, to have the decree modified to reduce or discontinue them. The present appeal by Beacham is from decrees of the Chancery Court of Hinds County dated June 6, and July 11, 1979, (the cases have been consolidated) rejecting Beacham's requests for modification of the former decree so as to permit him to discontinue payments to Mrs. Beacham and holding him in contempt for failures or delays with respect thereto. *147 The payments for support of the children were made by Beacham as required, the children had reached their majority before the hearings which resulted in the decrees appealed from were entered, and the children are no longer dependent upon their mother for supervision or parental care. Leaving aside the several collateral matters which are raised or sought to be raised on the appeals in these cases, there is very little dispute about the substantial or significant facts relating to the circumstances of the parties. At the time of the divorce, the house and all of its furnishings had become the property of Mrs. Beacham. It is perfectly clear that she is a single woman, in good health, with no dependents and with an income of some $18,000.00 a year, exclusive of any payment of alimony by Mr. Beacham. Mrs. Beacham cannot be characterized as being in any sense a needy person. At the time of the decrees appealed from, in addition to her substantial income, she had in prospect retirement pay and social security. At the time the divorce decree was entered in 1967, when custody and supervision of the children was left with Mrs. Beacham, apparently so as not to disturb their existing circumstances, it cannot be said at this date that it was unreasonable for the court, in allowing them to remain with their mother, and directing Beacham to make payments for their support, also to award to Mrs. Beacham a sum as alimony in connection with her duties in supervising and looking after the children. It was a matter which can reasonably be considered to have been in the mutual best interest of the parties as well as of the children. Now that this duty (looking after the children) no longer rests upon Mrs. Beacham and the circumstances are such as no longer to require contributions to Mrs. Beacham from Mr. Beacham upon the basis of any need or otherwise, he should not be required to continue them. Beacham was the innocent party in the divorce and the divorce decree so adjudicated. The destruction of the marriage was the result of misconduct on the part of Mrs. Beacham. Mrs. Beacham no longer has the responsibility of the minor children. She cannot be said to be in any sense needy, in poor health, or unable to lead an independent life with ample means of support without further payment to her of alimony by Beacham. In such circumstances, requiring Beacham to continue to pay alimony to her should cease. The policy in Mississippi regarding the award of alimony in such a case has long been established. This Court held in Coffee v. Coffee, 145 Miss. 872, 111 So. 377 (1927), that alimony will not be allowed to the wife unless the decree for divorce is in her favor. While exceptions to this rule have been noted in later cases, such as, for instance, where the wife is without estate and has no means of support or the husband's property is an accumulation of the joint efforts of the parties, or where the wife is sick and unable to earn a livelihood. None of these exists in this case. In Bunkley and Morse's Amis Divorce And Separation in Mississippi, paragraph 6.04 (1957), in concluding a discussion of the rule, it is said: "It should be emphasized that the general rule is that alimony should not be granted to the wife where the separation and divorce are brought about by her acts and conduct. The rule is a sound one and is based on the proposition that a husband is entitled to have his wife receive her support in his home while she is discharging the duties of a wife as imposed under the marriage contract." In the same work the authors refer to Gatlin v. Gatlin, 248 Miss. 868, 161 So.2d 782 (1964), which was a case involving an exception to the general rule in that alimony was allowed to the wrongdoing wife "because of her destitute situation and her poor health, ..." the court holding that the chancellor should have retained jurisdiction even in such a case in order to permit reconsideration when appropriate. In Russell v. Russell, 241 So.2d 366 (Miss. 1970), this Court had occasion to reexamine and approve the general rule that alimony will not be awarded to a wife whose misconduct was the ground for the husband's *148 divorce. In Russell, supra this Court, after reviewing the authorities, found that Mrs. Russell's situation did not fall within any of the exceptions to the general rule. Moreover, in Russell, although the Court found that Mrs. Russell was not financially independent, it was noted that she had an income from a former husband for the support of his children, the former husband having arranged for them to have a home. The Court found that Mrs. Russell was able to work and considered that she was able to earn her own living. This Court reversed the chancellor who had awarded alimony to Mrs. Russell saying that it could not agree that Mr. Russell should pay her alimony where the chancellor had dissolved the marriage because of her fault. In the present case there is no dispute that Mrs. Beacham is in the prime of life, enjoying good health, earning a very substantial salary and with every reasonable prospect for a secure future in the form of retirement pay and social security. In this situation, under the rule above stated, it is not necessary to go into the financial status of Mr. Beacham or to point out the undeniable fact that he has been and is in poor health. It would not be unreasonable to assume that, in awarding alimony to Mrs. Beacham in the decree granting Beacham a divorce, and providing for support of the children in the home with Mrs. Beacham, the chancellor was motivated by a desire to make Mrs. Beacham's task of supervision easier and thus justified the award. However, no matter what prompted the award, no reason whatever now exists justifying the continuance of alimony payments to Mrs. Beacham. As in Russell, supra, it was error not to relieve the former husband of continuing payments to his former wife. It is unnecessary to pass upon the constitutionality of the Mississippi alimony statute (as it existed prior to the current session of the Mississippi Legislature) under Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979) nor to pass upon other questions raised not relevant to the central issues. Alimony is not a bounty to which Mrs. Beacham became entitled to receive indefinitely simply by reason of the fact that at one time she had been married to Beacham. In the divorce decree, it was judicially established that the marriage had been broken up and terminated because of her own misconduct. It cannot be said that she is in any way dependent for a livelihood upon receiving alimony from Beacham. The divorce effectively and finally dissolved and ended their relationship with each other and with it their reciprocal responsibilities. Unless some reason, based upon public policy, could be pointed out that, in good conscience, there is a compelling need to require support from her former husband, he should be relieved of the burden of making contributions to her. No such reason can be pointed out in this case and we are compelled to hold that none exists. The decrees appealed from will be reversed and a decree entered here relieving Beacham of further payments of alimony to Mrs. Beacham. The case will be remanded to the chancery court for further proceedings with respect to the amounts due Mrs. Beacham which have accrued, from which Beacham is not relieved. It is apparent from the record that Mrs. Beacham is well able from her own means to employ and pay an attorney to represent her and the allowance of attorney's fees on this appeal is denied. REVERSED AND RENDERED IN PART AND REMANDED. PATTERSON, C.J., ROBERTSON, P.J., and SUGG, WALKER, BROOM, LEE and COFER, JJ., concur. BOWLING, J., took no part.

343 B.R. 63 (2006) In re MANHATTAN INVESTMENT FUND LTD., et al., Debtors. Helen Gredd, Chapter 11 Trustee for Manhattan Investment Fund Ltd., Plaintiff, v. Bear, Stearns Securities Corp., Defendant. Bankruptcy Nos. 00-10921BRL, 00-10922BRL, Adversary No. 01-02606 No. 06 Civ.1996(NRB). United States District Court, S.D. New York. May 31, 2006. *64 *65 Daniel E. Reynolds, Lankier Siffert & Wohl LLP, New York, NY, for plaintiff. Harry Simeon Davis, Schulte Roth & Zabel LLP (NY), New York, NY, for defendant. MEMORANDUM AND ORDER BUCHWALD, District Judge. Defendant Bear, Stearns Securities Corp. ("Bear Stearns" or "defendant") moves for an order pursuant to 28 U.S.C. § 157(d) withdrawing the above-captioned adversary proceeding from the United States Bankruptcy Court for the Southern District of New York. Plaintiff Helen Gredd ("Gredd" or the "trustee"), the Chapter 11 Trustee for the Manhattan Investment Fund ("the Fund"), opposes the motion. For the reasons that follow, defendant's motion is denied. BACKGROUND This is the fourth opinion this Court has issued in this case. See Bear, Stearns Sec. Corp. v. Gredd, 01 Civ. 4379(NRB), 2001 WL 840187 (S.D.N.Y. July 25, 2001) (granting first motion to withdraw reference for Counts II and III of the complaint) ("Gredd I"); Bear, Stearns Sec. Corp. v. Gredd, 275 B.R. 190 (S.D.N.Y. 2002) (granting defendant's motion to dismiss Counts II and III) ("Gredd II); In re Manhattan Investment Fund Ltd., 288 B.R. 52 (denying defendant's motion for interlocutory appeal of Bankruptcy Court decision denying motion to dismiss Counts I and IV) ("Gredd III"). The Bankruptcy Court has also issued an opinion in this matter, denying defendant's motion to dismiss Counts I and IV, which are the counts defendant now seeks to have adjudicated before this Court. See In re Manhattan Investment Fund Ltd., 310 B.R. 500 (Bankr.S.D.N.Y.2002). Moreover, several other Southern District Judges have issued a total of twelve opinions and orders in civil and criminal cases arising out of the same underlying facts. Consequently, we assume familiarity with the facts, and provide only a brief overview of the relevant procedural history below. This action arises out of a Ponzi scheme engineered by Michael Berger, the Fund's manager, who sought to cover losses from ill-advised short sales of technology stocks with deposits made by new investors. The results were disastrous; the Fund hemorrhaged hundreds of millions of dollars and Mr. Berger was criminally prosecuted, pleading guilty to securities fraud.[1] The instant matter involves the Fund trustee's efforts to avoid certain transfers she alleges to be fraudulent. In Gredd I, we granted Bear Stearns' motion to withdraw the reference for *66 Counts II and III of the complaint for the limited purpose of determining "whether the proceeds generated from short sales of stock, and the securities later purchased to cover those short sales, constituted `interest[s] of the debtor in property' within the meaning of 11 U.S.C. § 548(a)(1)(A)." Gredd II, 275 B.R. at 191. Before ruling, we considered and rejected Bear Stearns' proposal to withdraw the entire reference, determining that a partial withdrawal best served the interests of judicial efficiency. See, e.g., Aff. of Daniel E. Reynolds, Ex. 33 (Daniel J. Kramer Letter dated 7/12/02 arguing for full withdrawal). Subsequently, in Gredd II, we dismissed Counts II and III, remanding Counts I and IV to the Bankruptcy Court. See Gredd II, 275 B.R. at 199. After the Bankruptcy Court denied its motion to dismiss Counts I and IV, Bear Stearns moved pursuant to 28 U.S.C. § 158(a)(3) and Fed. R. Bankr.P. 8001(b) and 8003 for leave to appeal the Bankruptcy Court's decision. In Gredd III, we denied that motion. Count I seeks to avoid allegedly fraudulent transfers of margin payments made by the Fund to Bear Stearns. Count IV alleges that, to the extent to which the trustee is successful in this case, any claims made or liens asserted by Bear Stearns in the Chapter 11 bankruptcy proceeding should be subordinated to all other claims pursuant to 11 U.S.C. §§ 105 and 510(c). Two days after the close of discovery in the Bankruptcy Court, Bear Stearns again moved this Court to withdraw the reference for Counts I and IV pursuant to 28 U.S.C. § 157(d), asserting that, "[n]ow that discovery is complete, it is now clear that Counts I and IV now require substantial and material consideration of federal securities law." Def. Mem. of Law at 1.[2] The trustee opposes the motion on three grounds: first, that the motion is barred by the law of the case doctrine; second, that it is untimely; and third, that Bear Stearns has failed to meet the statutory standard for mandatory withdrawal. We now find that each of the first two grounds provides an independent basis to deny the motion, and accordingly remand the case to the Bankruptcy Court for resolution of Bear Stearns' motion for summary judgment. DISCUSSION I. Standard for Mandatory Withdrawal under 28 U.S.C. § 157(d) As we explained in Gredd I, despite the broad language of § 157(d), which if read literally "could result in a broad escape hatch through which most bankruptcy matters [could] be removed to a district court," In re Combustion Equip. Assocs., 67 B.R. 709, 711 (S.D.N.Y.1986) (internal quotation and citation omitted), courts have narrowly construed the mandatory withdrawal provision to apply only in cases "where substantial and material consideration of non-Bankruptcy Code federal statutes is necessary for the resolution of the proceeding." In re Ionosphere Clubs, Inc., 922 F.2d 984, 995 (2d Cir.1990) (citing In re White Motor Corp., 42 B.R. 693, 700 (N.D.Ohio 1984)). Consideration *67 is "substantial and material" when the case requires the bankruptcy judge to make a "significant interpretation, as opposed to simple application, of federal non-bankruptcy statutes." In re CIS Corp., 172 B.R. 748, 753 (S.D.N.Y.1994); see also City of New York v. Exxon Corp., 932 F.2d 1020, 1026 (2nd Cir.1991) (citations omitted); In re Revere Copper & Brass Inc., 172 B.R. 192, 196 (S.D.N.Y.1994); In re Adelphi Inst., Inc., 112 B.R. 534, 536 (S.D.N.Y.1990). Moreover, "where matters of first impression are concerned, the burden of establishing a right to mandatory withdrawal is more easily met." Mishkin v. Ageloff, 220 B.R. 784, 796 (S.D.N.Y. 1998) (citing In re Keene Corp., 182 B.R. 379, 382 (S.D.N.Y.1995) and In re Ionosphere Clubs, 103 B.R. 416, 419-20 (S.D.N.Y.1989)). II. Analysis A. The Law of the Case Doctrine The law of the case is a discretionary doctrine, providing "that where a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618-19, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). While the law of the case is "a discretionary doctrine which does not constitute a limitation on the court's power but merely expresses the general practice of refusing to reopen what has been decided," Brody v. Village of Port Chester, 345 F.3d 103, 110 (2d Cir. 2003) (citations and internal quotations omitted), nonetheless, the situations justifying reconsideration are generally limited to "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Doe v. New York City Dep't of Soc. Svcs., 709 F.2d 782, 789 (2d Cir.1983) (quoting 18B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 790 (1981) (footnote omitted) (additional citations omitted)). Bear Stearns argues that the doctrine is inapplicable here. We disagree. Bear Stearns suggests that because it "did not make the arguments submitted to the Court here in [its] earlier motions, and the Court did not reject those arguments," the doctrine does not apply. While it is accurate that the decision in Gredd I did not address the arguments now raised by Bear Stearns, it is also the case that Bear Stearns sought to withdraw the entire proceeding at that time, a proposal this Court rejected in favor of a partial withdrawal relating only to the securities law issues raised by Counts II and III. At oral argument during Gredd I, counsel for Bear Stearns urged the Court to withdraw the entire proceeding, arguing that "Count 1 . . . relates to margin payments, which is, of course, part of the federal securities scheme. It's not a stretch to take the whole case. It all involves the securities industry." Tr. of Oral Arg. at 21. Ultimately, we decided that only Counts II and III raised issues requiring "substantial and material" consideration of the securities laws, and only adjudicated those two counts, remanding Counts I and IV to the Bankruptcy Court. The law of the case doctrine is thus clearly applicable, as this Court has already issued a ruling in which it declined to withdraw the reference for Counts I and IV. Moreover, this is a particularly suitable occasion for application of the doctrine, as it comports with the basic principle that parties must raise their arguments at the first opportunity or waive them. In 2001, the Court held oral argument on the first motion to withdraw the reference, at which point Bear Stearns was permitted to, and did, argue for withdrawal of the entire reference. Were we now to entertain a *68 motion to withdraw Counts I and IV, we would be permitting re-litigation of an issue already decided in the absence of an intervening change in the law or facts that would provide a "cogent" or "compelling" reason for this Court to do so. B. Timeliness Even if the instant motion were not barred by the law of the case doctrine, it would nonetheless be rejected for untimeliness. By its plain language, 28 U.S.C. § 157(d) requires that motions to withdraw be "timely." Thus, even if we were to accept that Bear Stearns is now raising new arguments, Bear Stearns would have to satisfactorily explain why it has waited almost five years to argue for withdrawal of Counts I and IV. Bear Stearns' suggestion that "the Trustee likely would have protested" if Bear Stearns had made its motion during discovery, rather than at its conclusion, does not excuse its extraordinary delay. See, e.g., In re FMI Forwarding Co., Inc., 01 Civ. 9462(DAB), 2005 WL 147298 at *6 (S.D.N.Y. Jan. 24, 2005) (noting that "courts in the Circuit have defined `timely' to mean as soon as possible after the moving party has notice of the grounds for withdrawing the reference") (internal citation and quotations omitted). In fact, courts in this district have held that a delay of several months in making a motion to withdraw a reference to the Bankruptcy Court may be untimely. See, e.g., Connolly v. Bidermann Indus. U.S.A., Inc., 05 Civ. 1791(RPP), 1996 WL 325575 at *3 (S.D.N.Y. June 13, 1996) (nine month delay renders motion untimely); In re New York Trap Rock Corp., 158 B.R. 574, 577 (S.D.N.Y.1993) (three month delay). We thus find that untimeliness provides an alternative basis to reject Bear Stearns' motion. CONCLUSION For the reasons stated above, Bear Stearns' second motion to withdraw the reference is denied. The case is hereby remanded to the Bankruptcy Court for further proceedings. SO ORDERED. NOTES [1] Mr. Berger failed to appear for his sentencing and remains a fugitive. [2] Specifically, Bear Stearns contends that determining who can be considered a "transferee" under § 550(a) of the Bankruptcy Code requires consideration of federal regulations governing "margin transactions and broker utilization of customer funds." Levitin v. PaineWebber, 159 F.3d 698, 705 (2d Cir.1998). As an example of a federal regulation implicated by Count I, Bear Stearns points to SEC Rule 15c3-3(e)(2), which it claims to "specifically prohibit[] broker-dealers from using customer funds . . . for the broker-dealer's own propriety [sic] purposes or for any other non-customer transactions." Def. Mem. of Law at 4. Because we have determined that withdrawal is inappropriate, we do not consider the substance of Bear Stearns' arguments here.

648 F.Supp.2d 18 (2009) ST. MICHAEL'S MEDICAL CENTER, et al., Plaintiffs, v. Kathleen SEBELIUS,[1] Secretary of the Department of Health and Human Services, Defendant. Civil Action Nos. 07-2036 (EGS), 07-1484 (EGS). United States District Court, District of Columbia. August 26, 2009. *19 Katherine Karker-Jennings, Clarksville, MD, for Plaintiffs. Jeremy S. Simon, U.S. Attorney's Office, Jocelyn Stephanie Beer, U.S. Department of Health & Human Services, Washington, DC, for Defendant. MEMORANDUM OPINION EMMET G. SULLIVAN, District Judge. Plaintiffs are twenty-two urban hospitals seeking additional reimbursement from the Secretary of Health and Human Services ("defendant" or the "Secretary") for inpatient services plaintiffs provided to Medicare beneficiaries during fiscal years ("FY") 2000 and 2001.[2] The parties filed cross motions for summary judgment, which this Court referred to a magistrate judge for a Report and Recommendation. Now pending before the Court are the parties' objections to the Report and Recommendation. Upon careful consideration of the Report and Recommendation, the parties' objections and responses to objections, the cross motions, responses and replies thereto, the applicable law, the entire record herein, and for the reasons stated below, the Court rejects the magistrate judge's recommendations, GRANTS defendant's motion for summary judgment, and DENIES plaintiffs' motion for summary judgment. I. BACKGROUND A. Medicare Reimbursement and the Prospective Payment System The Medicare program, established by Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq., pays for covered *20 medical services provided to eligible aged and disabled persons. Part A of the Medicare program authorizes payments for, among other things, certain inpatient hospital services. See id. §§ 1395c, 1395d. The Centers for Medicare and Medicaid Services ("CMS") (formerly known as the Health Care Financing Administration ("HCFA")) is the agency within the Department of Health and Human Services that has been designated by the Secretary to administer the Medicare program. CMS, in turn, has delegated many of Medicare's audit and payment functions to fiscal intermediaries, who are generally private insurers. See id. § 1395h. Although hospitals used to be reimbursed for their actual costs in treating beneficiaries (as long as those costs were reasonable), most hospitals are now reimbursed through the Prospective Payment System ("PPS"). See id. § 1395ww(d). Under the PPS, hospitals are "paid fixed rates for providing specific categories of treatment, known as `diagnosis related groups,' or `DRGs.'" Bellevue Hosp. Ctr. v. Leavitt, 443 F.3d 163, 168 (2d Cir.2006) (citing 42 U.S.C. § 1395ww(d)). Medicare administrators develop these rates by setting a "standard nationwide cost rate—the `federal rate'—based on the average operating costs of inpatient hospital services. They then assign a weight to each category of inpatient treatment, or [DRG]." Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225, 1227 (D.C.Cir.1994) (internal citation omitted). A hospital's final reimbursement per patient is determined by multiplying the patient's DRG and the federal rate, after that rate has been "standardized" by making adjustments based on a variety of factors. See 42 U.S.C. § 1395ww(d)(2)(C) (listing the factors used for standardization). To account for regional variations in labor costs, the Secretary adjusts the labor-related portion of the federal rate by a geographically specific factor commonly referred to as the "wage index." See 42 U.S.C. § 1395ww(d)(3)(E)(i). Specifically, § 1395ww(d)(3)(E)(i) states that the Secretary shall adjust the proportion, (as estimated by the Secretary from time to time) of hospitals' costs which are attributable to wages and wage-related costs, of the DRG prospective payment rates computed under subparagraph (D) for area differences in hospital wage levels by a factor (established by the Secretary) reflecting the relative hospital wage level in the geographic area of the hospital compared to the national average hospital wage level. Id.; see also Robert Wood Johnson Univ. Hosp. v. Thompson, 297 F.3d 273, 276 (3d Cir.2002) ("The wage index compares the average hourly wage for hospitals in a given geographic area with the national average hourly wage, which in turn determines the payment rate above or below the national average at which a hospital is reimbursed. The wage-index for an area generally applies to all hospitals physically located within that geographic area." (internal citation omitted)). B. Geographic Classification, Reclassification, and the Impact on the Wage Index For the purposes of the wage index, the Secretary classifies a hospital as being located in either an urban or rural area using Metropolitan Statistical Areas ("MSAs"), as defined by the Executive Office of Management and Budget. See 42 C.F.R. § 412.64. Recognizing that these geographic classification procedures impose a burden on some hospitals,[3] Congress *21 amended the Medicare statute "to allow a hospital to seek reclassification from its geographically-based wage area to a nearby wage area for payment purposes if it meets certain criteria." Robert Wood Johnson, 297 F.3d at 276. The current reclassification provisions permit a rural hospital that meets those criteria to reclassify as urban, and qualifying urban hospitals to reclassify either as rural or to another higher-wage urban area. See 42 U.S.C. §§ 1395ww(d)(8)(B)(i) & (d)(10); 42 C.F.R. §§ 412.230-412.235. Congress also created the Medicare Geographic Classification Review Board, a five-member entity that reviews reclassification applications and, based on the specified requirements, decides whether an applicant is eligible for reclassification. See 42 U.S.C. § 1395ww(d)(10); 42 C.F.R. § 412.230. Both Congress and the Secretary have recognized that hospital reclassification can substantially impact the wage index for both the geographic area from which a hospital originates and the new area into which the hospital classifies. The Medicare program therefore provides for circumstances when the wage index data for an incoming rural hospital must be excluded from the wage index of the urban area it is entering. 42 U.S.C. § 1395ww(d)(8)(C)(i)(I)-(II). Likewise, Congress implemented a provision to prevent the wage index of a rural area from decreasing when a hospital originating from that area reclassifies into an urban area.[4]See id. § 1395ww(d)(8)(C)(ii). No such statutory provision exists for urban areas, but no reclassification may result in the reduction of a wage index of any county below that of the State's rural areas.[5]See id. § 1395ww(d)(8)(C)(iii); see also Def.'s Objections to Magistrate Judge's Report & Recommendation ("Def.'s Objections") at 5 ("[T]he Act is silent with respect to how to calculate the wage index for an urban area after a hospital has reclassified to another area...."). Plaintiffs in this lawsuit challenge the Secretary's since-changed practice of calculating the wage index for urban areas without including data from hospitals that have reclassified into higher-wage areas. C. Reclassification and Urban Wage Indexes The Secretary annually publishes rules in the Federal Register setting forth both the methodology for calculating the wage index and the wage indexes themselves. Beginning in 1991, the Secretary publicly acknowledged the increase in urban reclassifications and, through notice and comment rulemaking, considered various methods to calculate the wage index for urban areas in the wake of such reclassifications. Despite proposals to implement a "hold harmless" provision for urban hospitals similar to the statutory provision in place for rural areas, the Secretary repeatedly declined to do so. See, e.g., 65 Fed. Reg. 47054, 47077 (Aug. 1, 2000) ("[E]xcept for those rural areas in which redesignation would reduce the rural wage index value, the wage index value for each area is computed exclusive of the wage data for hospitals that have been redesignated from the area for purposes of their wage index."); 56 Fed. Reg. 43196, 43221 (Aug. 30, 1991) ("[W]e considered ... provid[ing] *22 the same `hold harmless' protection that the statute affords to rural areas when hospitals are reclassified from those areas. That is, we considered providing that the wage index value for an urban area could not be reduced due to the reclassification of hospitals from that area. However, we do not believe this action would be appropriate."). In 2001, however, the Medicare Payment Advisory Commission ("MedPAC") issued a report to Congress recommending that the Medicare statute be amended to provide a "hold harmless" provision for urban areas. See Def.'s S.J. Mem. at 10-11 (citing Medicare Payment Advisory Comm'n, Report to the Congress: Medicare Payment Policy 82 (Mar. 2001), http://www.medpac.gov/documents/Mar01% 20 Entire% 20report.pdf ("MedPAC Report"), and describing the contents of the report). The report expressed MedPAC's opinion that the Secretary had the authority to make such a change by way of regulation, but noted that the agency had been "reluctant" to do so. MedPAC Report at 83 ("HCFA appears to have the authority to make this change through regulation. However, because the protection for nonreclassified rural hospitals was enacted legislatively and Congress has not legislated such protection for urban hospitals, HCFA has thus far been reluctant to make the change itself."). Shortly thereafter, the Secretary did in fact propose implementing a "hold harmless" provision for urban areas, and discussed the MedPAC Report and its findings in the proposed rule. See 66 Fed. Reg. 22646, 22678 (May 4, 2001). The rule was adopted in August 2001 and has been in effect since FY 2002. See 66 Fed. Reg. 39828, 39865 (Aug. 1, 2001) ("Currently, the wage index value for an urban area is calculated exclusive of the wage data for hospitals that have been reclassified to another area. For the FY 2002 wage index, we include the wage data for a reclassified urban hospital in both the area to which it is reclassified and the MSA where the hospital is physically located."). D. Administrative and Judicial Review To receive reimbursement for services, hospitals file "cost report[s]" with their intermediaries at the end of each fiscal year. 42 C.F.R. § 405.1801(b)(1). Intermediaries then audit the reports and determine the reimbursement amount owed to the providers. That determination is memorialized in a Notice of Program Reimbursement and issued to the provider. Id. § 405.1803(a)(2). A hospital or group of hospitals dissatisfied with an intermediary's reimbursement determination may file an appeal with the Provider Review Reimbursement Board ("PRRB"). See 42 U.S.C. § 1395oo(a)-(b). The PRRB is "an administrative review panel that has the power to conduct an evidentiary hearing and affirm, modify, or reverse the intermediary's [reimbursement] determination." Your Home Visiting Nurse Servs., Inc. v. Shalala, 525 U.S. 449, 451, 119 S.Ct. 930, 142 L.Ed.2d 919 (1999). Additionally, both the statute and the corresponding regulations provide a mechanism for the PRRB to grant expedited judicial review ("EJR") where the PRRB determines that it lacks the authority to decide a legal issue: Providers shall ... have the right to obtain judicial review of any action of the fiscal intermediary which involves a question of law or regulations relevant to the matters in controversy whenever the Board determines (on its own motion or at the request of a provider of services...) that it is without authority to decide the question, by a civil action commenced within sixty days of the date *23 on which notification of such determination is received. 42 U.S.C. § 1395oo(f)(1); see also 42 C.F.R. § 405.1842(f)(1)(ii) (noting that before issuing an EJR decision, the PRRB must determine that it "lacks the authority to decide a specific legal question relevant to the specific matter at issue because the legal question is a challenge either to the constitutionality of a provision of a statute, or to the substantive or procedural validity of a regulation or CMS Ruling"). E. Factual and Procedural Background Plaintiffs are hospitals located in multiple MSAs in New Jersey, New York, and Connecticut from which at least one hospital has classified to another area. See Compl. ¶¶ 3, 15. In FY 2000 and 2001, plaintiffs submitted cost reports to their fiscal intermediaries requesting reimbursement. Def.'s Statement of Material Facts as to Which There is No Genuine Issue ("Def.'s Statement") ¶ 3. Plaintiffs were dissatisfied with their Notices of Program Reimbursement because they believed that the data from reclassified hospitals was improperly omitted from the wage-index calculation, the exclusion of which resulted in reduced reimbursements.[6] Def.'s Statement ¶ 4; Compl. ¶¶ 15, 20. On appeal to the PRRB, plaintiffs requested (1) consolidation into group appeals for FY 2000 and 2001, and (2) EJR. See Def.'s Statement ¶ 5; Admin. Record ("AR") at 432-33. The PRRB determined that EJR was appropriate in both cases because the PRRB was "without the authority to decide the legal question" presented by plaintiffs' challenge to the reimbursement determination. AR at 2. Specifically, the PRRB noted that plaintiffs were not seeking the type of relief— "correction of [plaintiffs'] own wage data"—that PRRB could provide. AR at 2. "Rather, they are seeking to have the wages of reclassified hospitals included in their wage index calculation." AR at 2. Because such a remedy would require an evaluation of the lawfulness of the Secretary's interpretation of the Medicare statute, the PRRB concluded that EJR was appropriate. AR at 2. As required by 42 U.S.C. § 1395oo(f)(1), plaintiffs filed the instant complaints within sixty days of the PRRB's respective EJR determinations. After the cases were consolidated in this Court, the parties filed cross motions for summary judgment. In December 2008, the Court referred the case to a magistrate judge for a Report and Recommendation. The magistrate judge filed her Report and Recommendation on March 19, 2009, 2009 WL 762897, recommending that both motions for summary judgment be denied and that the action "be remanded to the Secretary for the articulation of findings, as to each provider which is a Plaintiff in this action, with respect to what `adjustment' was made pursuant to 42 U.S.C. § 1395ww(d)(3)(E)." Report & Recommendation at 9. In reaching this recommendation, the magistrate judge reasoned that "the absence from the administrative record of any indication of how CMS interpreted and applied 42 U.S.C. § 1395ww(d)(3)(E)" prevented judicial review of a final agency action. Id. at 6. The Report and Recommendation thus concluded that "[i]n the absence of any record in the administrative record of what determination CMS made with respect to the adjustments, and *24 what factors were considered in making such adjustments, the court has no basis upon which to determine whether CMS's determinations were contrary to law, or otherwise arbitrary and capricious." Id. at 6-7. Noting that calculating the reimbursement rates applicable to plaintiffs "would require a virtually trial-like proceeding for the resolution of the disputed factual issues," the magistrate judge instead recommended that the case be remanded to the agency for further factual development of the record. Id. at 7. Both plaintiffs and defendant have filed objections to the Report and Recommendation. Those objections have been fully briefed and are now ripe for decision. II. Report and Recommendation Both parties object to the Report and Recommendation's findings that (1) the administrative record does not make clear how CMS calculated the wage indexes challenged in this case or "what factors were considered in making such adjustments," Report & Recommendation at 6; and (2) the record does not contain sufficient information about the financial impact of the Secretary's calculations on the amount of plaintiffs' reimbursement, see id. at 7. More generally, the parties object to the Report and Recommendation's conclusion that the PRRB's decision does not constitute a final action, and agree that remand is unnecessary because the PRRB properly granted EJR. "When a party files written objections to any part of the magistrate judge's recommendation with respect to a dispositive motion, the Court considers de novo those portions of the recommendation to which objections have been made, and `may accept, reject, or modify the recommended decision[.]'" Robinson v. Winter, 457 F.Supp.2d 32, 33 (D.D.C.2006) (quoting Fed.R.Civ.P. 72(b)). Upon careful review of both the Report and Recommendation and the parties' objections thereto, the Court respectfully disagrees with the magistrate judge's determination that remand is necessary to develop the factual development in this case. As noted by the parties, "the sole issue" before this Court is a legal question— whether the Secretary's practice of excluding data from reclassified hospitals in calculating the wage indexes for the hospitals remaining in those urban areas violated 42 U.S.C. § 1395ww(d)(3)(E). Pls.' Statement of Material Facts as to Which There is No Genuine Issue ("Pls.' Statement") ¶ 3; see also Def.'s Response to Pls.' Statement of Material Facts as to Which There is No Genuine Issue ¶ 3 ("The sole issue is whether federal law mandated that the Secretary include reclassified hospitals located in the Plaintiffs' geographic area in the wage index calculation for the remaining hospitals."). The parties do not dispute that this data was in fact excluded from the FY 2000 and 2001 calculation of the wage indexes for plaintiffs' geographic areas, and, as the parties explain in their summary judgment briefing and respective objections, the Secretary's reasons for maintaining the challenged policy were explained in detail in the Federal Register. See, e.g., 56 Fed. Reg. 43196, 43221 (Aug. 30, 1991) (explaining why the Secretary was rejecting proposals to implement a "hold harmless" provision for urban hospitals). The Report and Recommendation correctly notes—and the parties fully acknowledge —that the administrative record does not contain factual information sufficient to determine the precise amount of additional reimbursement to which plaintiffs would be entitled if they were to prevail in their legal argument. See Pls.' Objections at 9-10 (explaining that some of the relevant information is in the administrative record, but acknowledging that the Secretary and/or intermediary would have *25 to recalculate the exact amount at issue); Def.'s Objections at 11-12 (noting that the administrative record "contains little beyond the documents needed to establish the PRRB's jurisdiction over each of the Plaintiffs"). But this deficiency in the record does not create a material factual dispute preventing the Court from resolving the legal question raised here.[7] Moreover, the PRRB's determination that it lacked the authority to decide the legal question raised by plaintiffs was in full compliance with 42 U.S.C. § 1395oo(f)(1), which explicitly contemplates the situation presented by this case. See Hunterdon/Somerset 2001 Wage Index Group v. Riverbend Gov't Benefits Adm'r, PRRB Hearing Dec. No. 2004-D13, Case No. 01-1881GE (Apr. 14, 2004), AR at 438 (finding, on its own motion, that EJR was warranted because "the facts material to the issue are not in dispute. The questions posed by the Providers as requiring Board resolution are questions regarding how CMS's policy is made. The Board has no authority to dictate or fashion CMS policy or to retroactively apply policy changes."); see also Robert Wood Johnson, 297 F.3d at 279-80 (acknowledging the court's jurisdiction after the PRRB granted EJR; noting that the court's review was "limited to the issue before the PRRB regarding the Secretary's interpretation" of the statute relevant in that case). Because 42 U.S.C. § 1395oo(f)(1) has been properly invoked, the PRRB's EJR decision constitutes a final decision, see 42 C.F.R. § 405.1842(h)(1), and plaintiffs "have the right to obtain judicial review" of the calculation of their wage index for FY 2000 and 2001, "which involves a question of law or regulations relevant to the matters in controversy." 42 U.S.C. § 1395oo(f)(1). This Court therefore rejects the magistrate judge's recommendation and will proceed to address the merits of the parties' cross motions for summary judgment. III. SUMMARY JUDGMENT A. Standard of Review Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Likewise, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.1975).[8] *26 Plaintiffs' principal claim is that the Secretary exceeded her statutory authority and that her actions must be set aside pursuant to 5 U.S.C. § 706(2)(C), which permits a court to "hold unlawful and set aside agency action, findings, and conclusions found to be ... in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." As the D.C. Circuit has explained, "[i]n examining the Secretary's interpretation of a statute that she administers, the court applies the familiar methodology of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)." Methodist Hosp. of Sacramento, 38 F.3d at 1229. The court's first question must be "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. 2778. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. The court moves to the second step of Chevron only "if the statute is silent or ambiguous with respect to the specific issue." Id. at 843, 104 S.Ct. 2778. Under those circumstances, the court must consider whether the agency's interpretation "is based on a permissible construction of the statute." Id. If so, then the court "must defer to the Secretary's" interpretation. Methodist Hosp. of Sacramento, 38 F.3d at 1229. Where Congress has implicitly delegated authority to the agency to fill a gap left in the statutory framework, "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Chevron, 467 U.S. at 844, 104 S.Ct. 2778. Finally, "in framing the scope of review, the court takes special note of the tremendous complexity of the Medicare statute. That complexity adds to the deference which is due to the Secretary's decision." Methodist Hosp. of Sacramento, 38 F.3d at 1229 (giving heightened deference to the Secretary's policy of denying retroactive effect to a revised wage index); see also Robert Wood Johnson, 297 F.3d at 282 ("The broad deference of Chevron is even more appropriate in cases that involve a `complex and highly technical regulatory program,'" such as Medicare, which "require[s] significant expertise and entail[s] the exercise of judgment grounded in policy concerns.'" (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (additional citations omitted))). B. 42 U.S.C. § 1395ww(d)(3)(E)(i) Does Not Speak to the Precise Question at Issue Plaintiffs challenge the Secretary's exclusion of wage data of reclassified hospitals from the calculation of their wage indexes under § 1395ww(d)(3)(E)(i). As noted above, the statute requires the Secretary to adjust the proportion ... of the DRG prospective payment rates computed under subparagraph (D) for area differences in hospital wage levels by a factor (established by the Secretary) reflecting the relative hospital wage level in the geographic area of the hospital compared to the national average hospital wage level. (Emphasis added.) Plaintiffs argue that this provision is "clear and unambiguous" in requiring the Secretary to include the wage data of reclassified hospitals, which are "by definition `in the geographic area' of" plaintiff hospitals, in the calculation of the wage index. Pls.' Mem. at 6-7. In support of this argument, plaintiffs rely heavily on two cases: Bellevue Hospital Center v. *27 Leavitt, 443 F.3d 163 (2d Cir.2006), and Anna Jacques Hospital v. Leavitt, 537 F.Supp.2d 24 (D.D.C.2008).[9] As discussed below, neither of these cases supports plaintiffs' position. In Bellevue, the Second Circuit addressed two issues. First, it considered and rejected the plaintiff hospitals' challenge to the agency's use of MSAs in defining the "geographic areas" referred to in § 1395ww(d)(3)(E)(i). At the outset, the Bellevue court acknowledged that the agency's "task" under § 1395ww(d)(3)(E)(i) "is unambiguous: to calculate a factor that reflects geographic-area wage-level differences, and nothing else." 443 F.3d at 174. Plaintiffs in this case take this conclusion to mean that "the first sentence of § 1395ww(d)(3)(E)(i) is unambiguous, period." Pls.' Reply at 5. Plaintiff's reliance on Bellevue, however, fails to account for the remainder of the Bellevue court's discussion regarding the term "geographic area": At the same time, ... the statute leaves considerable ambiguity as to the term "geographic area," which, based only on the literal language of the provision, could be as large as a several-state region or as small as a city block. CMS's discretion in interpreting this ambiguous term is cabined by the need to fulfill two somewhat contradictory policies ...:(1) the geographic areas must be small enough to actually reflect differences in wage levels and, (2) each geographic area must include enough hospitals that their costs can be meaningfully averaged and individual hospitals do not get reimbursed for their own actual costs. In balancing these two considerations, the agency has considerable discretion. Moreover, even after determining the scale of each geographic area, lines must be drawn between areas that inevitably will be contested and may seem arbitrary; once again, the statute is silent as to how this process is to take place, leaving the agency with broad discretion. Bellevue, 443 F.3d at 175 (emphasis added); see id. (concluding that "the use of MSAs to fill the gap left by the ambiguous term `geographic areas' is reasonable"). To the extent that Bellevue's reasoning is applicable in the present case, it actually undermines plaintiffs' position that § 1395ww(d)(3)(E)(i) unambiguously requires the Secretary to include particular hospitals in calculating "the relative hospital wage level in the geographic area" of plaintiff hospitals. Just as the Bellevue court concluded that § 1395ww(d)(3)(E)(i) leaves discretion to the agency to use MSAs in determining the geographic area of a hospital for the purposes of the wage index, so too does the statute leave open the question of whether a hospital should be treated as located "in the geographic area" from which it has reclassified. The second issue addressed in Bellevue —whether the agency acted arbitrarily and capriciously in collecting certain data relating to the occupational mix of employees —is simply irrelevant to the case at bar. Plaintiff's reliance on Anna Jacques is misplaced for the same reason. Indeed, although Anna Jacques addressed the wage index under § 1395ww(d)(3)(E)(i), that case concerned the agency's interpretation of its obligation under the second sentence of the statutory provision to gather data for use in the calculation of wage indexes. See § 1395ww(d)(3)(E)(i) ("[T]he Secretary shall update the factor under the preceding sentence on the basis of a survey conducted by the Secretary (and *28 updated as appropriate) of the wages and wage-related costs of subsection (d) hospitals in the United States."). Specifically, the Anna Jacques court considered the scope of the Secretary's discretion to determine what types of hospitals should be included in the survey that the Secretary is required to conduct before updating the wage index. See 537 F.Supp.2d at 31 (concluding that the statute did not give the Secretary discretion to exclude critical access hospitals from the survey, because "the plain language of the statute indicates that Congress required the Secretary to conduct an accurate survey of the wages and wage-related costs of subsection (d) hospitals," and exclusion of critical access hospitals would not "faithfully reflect" that information). Anna Jacques thus addressed an entirely different part of § 1395ww(d)(3)(E)(i), one that deals with the collection of wage-index data rather than the calculation of a wage index after that data has been gathered. Accordingly, the Anna Jacques court's holding that the second sentence of the statute is unambiguous does not shed light on whether or not the first sentence of the statute clearly requires the Secretary to include the data from reclassified hospitals in its calculation. Reading the statutory framework as a whole reinforces the conclusion that § 1395ww(d)(3)(E)(i) does not unambiguously require the Secretary to include reclassified hospitals in the geographic area where they are physically located. Of particular note in this regard are the other subsections of § 1395ww(d) that explicitly (1) "hold harmless" rural hospitals, § 1395ww(d)(8)(C)(ii); and (2) set the "rural floor" below which no wage index may fall as a result of reclassification, § 1395ww(d)(8)(C)(iii). Plaintiffs' reading of § 1395ww(d)(3)(E)(i) would render these subsections superfluous, because § 1395ww(d)(3)(E)(i) would already protect against the concerns addressed by those provisions. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." (internal quotation marks omitted)). In sum, the Court agrees with the Secretary that 42 U.S.C. § 1395ww(d)(3)(E)(i) does not clearly address how the Secretary must treat wage data from hospitals that have reclassified to a different area in calculating the wage index. See Def.'s S.J. Mem. at 16. Although § 1395ww(d)(3)(E)(i) unambiguously requires the Secretary to "establish" a "factor" that reflects "the relative hospital wage level in the geographic area of the hospital," the language leaves substantial discretion to the Secretary in determining what constitutes both the "relative wage level" and the relevant "geographic area." Cf. Bellevue Hosp. Ctr., 443 F.3d at 174. The Court must therefore proceed to the second step of Chevron to consider whether the Secretary's policy of excluding data from reclassified hospitals from the calculation of plaintiffs' wage indexes was based on a "permissible construction" of § 1395ww(d)(3)(E)(i). C. The Secretary's Interpretation is Reasonable Having concluded that the statute does not address the precise question at issue, the Court must consider whether the Secretary's interpretation of § 1395ww(d)(3)(E)(i) was reasonable and, if so, must defer to that interpretation. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778. Plaintiffs rely primarily on the Secretary's decision to implement the "hold harmless" provision for FY 2002 in arguing that the agency's prior practice of excluding the wage data of reclassified *29 hospital was based on an impermissible construction of § 1395ww(d)(3)(E)(i). Put differently, plaintiffs claim that because the Secretary was able to effectuate the change in wage-index calculation without a change to the statutory or regulatory framework, the statute must have already required the inclusion of reclassified hospitals as part of the "geographic area." The Secretary responds that because the statute is silent as to the inclusion of reclassified hospitals' wage data, the agency was not only permitted to change its practice but was required to do so when information gained through the administration of the program led the Secretary to conclude that inclusion of the data was the preferable approach. Here the Secretary relies on a long line of cases, including Chevron, recognizing that an agency should not be prevented from adapting its policies when circumstances counsel in favor of such a change. See Def.'s S.J. Mem. at 23 (citing cases). Indeed, the Supreme Court in Chevron made this point particularly clearly: An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. Moreover, the fact that the agency has adopted different definitions in different contexts adds force to the argument that the definition itself is flexible, particularly since Congress has never indicated any disapproval of a flexible reading of the statute. 467 U.S. at 863-64, 104 S.Ct. 2778; see also Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) ("[T]he mere fact that an agency interpretation contradicts a prior agency position is not fatal.... [C]hange is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency."). The Court rejects plaintiffs' attempt to fault the Secretary for doing precisely what the Chevron Court envisioned—evaluating "the wisdom of [the agency's] policy on a continuing basis." Indeed, the Federal Register passages repeatedly referenced and discussed by the parties make clear that the Secretary carefully considered whether the Medicare statute should be interpreted to include a "hold harmless" provision for urban hospitals. The Secretary originally rejected this interpretation because of the concern that including reclassified hospitals in their original labor markets would (1) disrupt the statutory scheme, which specifically enumerated the circumstances under which reclassified hospitals should be included in the calculations of their originating geographic area; and (2) negatively impact the majority of hospitals by requiring that the overall standardized rate be reduced to comport with a budget-neutrality requirement contained in the statute. See 56 Fed. Reg. at 43221. When the agency reevaluated this interpretation in 2001, its rationale for doing so was clearly explained. The Secretary noted that including the data of reclassified hospitals in "the MSA where the hospital is physically located .... improves consistency and predictability in hospital reclassification and wage indexes, as well as alleviates the fluctuations in the wage indexes due to reclassifications." 66 Fed. Reg. at 39865. Moreover, the Secretary explained that reclassified hospitals may continue to compete for labor with the other hospitals in their MSA, and that their higher wages could pressure neighboring hospitals to increase their wages accordingly. Id. at 39866. These considerations, in addition to the conclusion that the Secretary had the authority to make *30 this change through rulemaking, found support in the MedPAC Report which was cited and discussed in the proposed rule. Plaintiffs repeatedly assert that only the Secretary's 2001 interpretation is reasonable, but they fail to point to anything about the agency's prior interpretation of the statutory scheme that was either unreasonable or arbitrary.[10] As noted above, the mere fact that the agency reevaluated the impact of its policy and changed its practice does not render the prior interpretation unreasonable. It is also significant that—despite a number of congressional amendments to 42 U.S.C. § 1395ww(d) during the period that the agency enforced its policy of excluding reclassified hospitals from the calculation of the wage indexes of the urban areas in which those hospitals were physically located —Congress never questioned or otherwise addressed the policy. See Chevron, 467 U.S. at 864, 104 S.Ct. 2778 (pointing out that Congress's failure to "indicate[] any disapproval of a flexible reading of the statute" supports the conclusion that "the definition itself is flexible"). Because the Court concludes that the Secretary's policy of excluding reclassified hospitals from plaintiffs' wage-index calculations constituted a permissible construction of the statute, the Secretary's interpretation is entitled to deference. Therefore, plaintiffs' challenge under 5 U.S.C. § 706(2)(C) fails. D. Additional Claims Plaintiffs also contend that the Secretary's exclusion of reclassified hospitals from the wage index calculations in FY 2000 and 2001(1) violated 42 C.F.R. § 413.5(b)(3); (2) was arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A); and (3) violated plaintiffs' rights to equal protection.[11] These arguments are not well-developed in the parties' submissions and, as explained briefly below, are without merit. Section 413.5(b)(3) of Title 42 of the Code of Federal Regulations is a regulation which states "[i]n general terms" that one goal of reimbursement should be to create "a division of the allowable costs between the beneficiaries of [the Medicare] program and the other patients of the provider that ... is fair to each provider individually." Plaintiffs conclusorily state that the Secretary's challenged policy was unfair to the individual hospitals, but fail to explain how or why this particular regulation applies in the present case or how the regulation confers any enforceable legal rights upon plaintiffs. For these reasons, the Court rejects this claim. Despite the distinct legal standards, plaintiffs make one combined argument that the Secretary's policy (1) was arbitrary and capricious and (2) violated their constitutional rights to equal protection. With respect to the claim based on 5 U.S.C. § 706(A)(2), plaintiffs argue that the Secretary failed to fulfill the statutory *31 purpose of § 1395ww(d)(3)(E)(i) and that the negative impact on plaintiff hospitals renders the Secretary's practice arbitrary and capricious. See Pls.' Mem. at 22-24. The D.C. Circuit has recognized that the arbitrary and capricious standard often "overlaps" with the second step of Chevron, because "whether a statute is unreasonably interpreted is close analytically to the issue whether an agency's actions under a statute are unreasonable." (Shays v. Fed. Election Comm'n, 414 F.3d 76, 96 (D.C.Cir.2005) (alteration and internal quotation marks omitted)). Here, plaintiffs' arguments under the arbitrary and capricious standard map directly onto the arguments that this Court has already addressed and rejected in discussing the Secretary's interpretation of 42 U.S.C. § 1395ww(d)(3)(E)(i). These arguments need not be revisited. Finally, as the Secretary points out, an equal protection challenge to the Medicare regulations is appropriately evaluated under the rational-basis standard. See Clinton Mem. Hosp. v. Sullivan, 783 F.Supp. 1429, 1440 (D.D.C.1992) (applying a "deferential standard" to an equal protection challenge to a Medicare regulation, and explaining that "the challenged statute or regulation will be struck down only if it `manifests a patently arbitrary classification, utterly lacking in rational justification'" (quoting Weinberger v. Salfi, 422 U.S. 749, 768, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975))), aff'd sub nom. Clinton Mem. Hosp. v. Shalala, 10 F.3d 854, 860-61 (D.C.Cir.1993). Plaintiffs contend that there was no valid reason to treat urban and rural hospitals differently, or to reimburse similarly situated hospitals at different levels before and after FY 2002. They do not challenge, however, the Secretary's proffered justifications for distinguishing between urban and rural hospitals or for not applying the change in the calculation of the wage indexes retroactively. Indeed, plaintiffs do not address their equal protection claim at all in their reply brief. And because the Secretary's proffered reasons "sufficient to justify any disparate treatment," id., plaintiffs' constitutional claim must fail. IV. CONCLUSION Accordingly, for the reasons stated, the Court GRANTS defendant's motion for summary judgment and DENIES plaintiffs' motion for summary judgment. An appropriate Order accompanies this Memorandum Opinion. NOTES [1] Pursuant to Federal Rule of Civil Procedure 25(d), Secretary Sebelius, in her official capacity as the Secretary of the Department of Health and Human Services, is automatically substituted as the named defendant. [2] This case was filed as two separate actions: Civil Action No. 07-2036, which addresses claims relating to FY 2000, and Civil Action No. 07-1484, which addresses claims relating to FY 2001. On January 4, 2008, the Court granted the parties' joint motion to consolidate the cases, and nothing substantive has been filed in Civil Action No. 07-2036 since the filing of the Administrative Record in February 2008. Because Civil Action No. 07-1484 is the operative case, all citations to the record in this Memorandum Opinion reference that case unless otherwise noted. [3] The hospitals that tend to be most negatively impacted by these classifications are those that compete for the same labor pool with hospitals located in larger, urban areas with higher wage indexes. See Robert Wood Johnson, 297 F.3d at 276 (describing the "inequitable results" caused by this situation); Athens Cmty. Hosp., Inc. v. Shalala, 21 F.3d 1176, 1177 (D.C.Cir.1994) ("[A] hospital that is in a rural area but must compete for labor with hospitals in a nearby urban area may be insufficiently reimbursed for the cost of providing services."). [4] This is often referred to as a "hold harmless" provision, because it ensures that hospitals in rural areas are "held harmless" from the effects of a reclassification. See Def.'s S.J. Mem. at 7. [5] This is sometimes called the "rural floor." [6] Plaintiffs claim that recalculating the wage index with data from the reclassified hospitals "would result in an increase of [plaintiffs'] collective reimbursement of approximately $23,956,069" for FY 2001 and approximately $20,588,699 for FY 2000. Compl., Civil Action No. 07-1484, at 14; Compl., Civil Action No. 07-2036, at 14. [7] The parties' briefing on both the cross motions and the objections to the Report and Recommendation includes considerable argument relating to the propriety of plaintiffs' proposed order, which specifically directs the Secretary to recalculate the wage index in a particular way and orders the Secretary to reimburse plaintiffs using these new calculations. Notwithstanding this dispute, however, the parties agree that if plaintiffs were to prevail on the merits, the case would have to be remanded to the agency to recalculate the wage indexes. And because, as discussed below, the Court concludes that defendant is entitled to summary judgment, further consideration of plaintiffs' proposed order is unnecessary. [8] The parties here agree that there are no material facts in dispute. They vigorously dispute, of course, which side is entitled to judgment as a matter of law. [9] The Anna Jacques decision is currently on appeal to the D.C. Circuit. See Case Nos. 08-5407 and 08-5529 (D.C.Cir.). [10] Plaintiffs focus on a few particular words in the 2001 Federal Register notice, claiming that the Secretary's choice of words either (1) proves that the Secretary knew its prior practice was unlawful, and/or (2) constitutes an admission under the Federal Rules of Evidence. Defendant's briefing persuasively demonstrates why these arguments are utterly lacking in merit, and the Court will not address plaintiffs' contentions any further. [11] Plaintiffs state that defendant's policy violates "the Equal Protection Clause," but never specify what constitutional provision this claim is based upon. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution does not apply to the federal government. Therefore, any constitutional claim against defendant based on equal protection principles would be cognizable only under the Due Process Clause of the Fifth Amendment.

101 F.3d 1395 43 ERC 1673, 322 U.S.App.D.C. 107, 65USLW 2438,27 Envtl. L. Rep. 20,476 DAVIS COUNTY SOLID WASTE MANAGEMENT and Energy RecoverySpecial Service District, a Utah politicalsubdivision, Petitioners,v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Nos. 95-1611, 96-1015 & 96-1048. United States Court of Appeals,District of Columbia Circuit. Argued Oct. 3, 1996.Decided Dec. 6, 1996. On Petition for Review of an Order of the Environmental Protection Agency. Mary Anne Q. Wood, David P. Novello, Washington, DC and Warren K. Rich, Annapolis, MD, argued the causes for petitioners, with whom Richard G. Wilkins, Larry S. Jenkins, Timothy R. Henderson and Jennifer L. Wurzbacher were on the joint briefs. William D. Evans, Jr. entered an appearance. John A. Sheehan and Eileen T. McDonough, Attorneys, United States Department of Justice, Washington, DC, argued the causes for respondent, with whom Lois J. Schiffer, Assistant Attorney General, was on the brief. Before: WALD, GINSBURG and RANDOLPH, Circuit Judges. WALD, Circuit Judge: 1 Davis County Solid Waste Management and Energy Recovery Special Service District and Waste Energy Partners Limited Partnership (collectively "petitioners") challenge the final standards governing municipal solid waste ("MSW") combustion that were promulgated by the Environmental Protection Agency ("EPA" or "agency") on December 19, 1995. See Standards of Performance for Municipal Waste Combustors and Emission Guidelines for Existing Sources, 60 Fed.Reg. 65,387 (1995) ("1995 Standards"). These standards, which implement sections 111 and 129 of the Clean Air Act ("CAA"), 42 U.S.C. §§ 7411, 7429 (1994), include new source performance standards ("NSPS") and emissions guidelines for a variety of substances and mixtures. The NSPS apply to new municipal waste combustor ("MWC") units, while the emission guidelines apply to existing MWC units. 2 According to petitioners, the 1995 standards exceed the EPA's statutory authority under the CAA because they are based on the aggregate MSW combustion capacity ("MSW capacity") of the plant at which a MWC unit is located, rather than on the MSW capacity of the MWC unit. Petitioners also argue that as applied to them the 1995 standards are arbitrary and capricious and that the EPA failed to comply with the CAA's procedural requirements in issuing the standards. Cement Kiln Recycling Coalition ("CKRC") argues that the EPA exceeded its statutory authority, acted arbitrarily and capriciously, and failed to comply with the CAA's procedural requirements in applying the standards to cement kilns. Since we agree with petitioners that the 1995 standards violate the plain meaning of section 129 and therefore vacate the standards, we do not reach petitioners' additional challenges or those of CKRC. I. BACKGROUND 3 MSW is the waste generated by household, commercial, institutional and industrial sources, such as appliances, newspapers, food wastes, boxes and office paper. MSW is disposed of in landfills or by incineration, also referred to as combustion. According to the EPA, approximately 16 percent of the MSW generated in the United States today is combusted. 1995 Standards, 60 Fed.Reg. at 65,390, 65,392. Combustion of MSW results in the emission of various air pollutants, such as acid gases, organics, metals, nitrogen oxides and ash, some of which are considered to be carcinogens or to have other adverse effects when inhaled. See Assessment of Municipal Waste Combustor Emissions Under the Clean Air Act, 52 Fed.Reg. 25,399, 25,403-06 (1987) ("1987 Assessment"). Prompted by growing awareness about the potential hazards of air emissions from MWC units, as well as a petition from several states and environmental groups, in 1987 the EPA issued an advance notice of its intention to regulate MWC units under section 111 of the CAA, which requires the EPA to propose emission standards for sources that the EPA determines "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7411(b)(1)(A); 1987 Assessment, 52 Fed.Reg. at 25,399 (1987). 4 The EPA issued the proposed standards for MWC emissions in 1989. See Standards of Performance for New Stationary Sources: Municipal Waste Combustors, 54 Fed.Reg. 52,251 (1989) ("1989 Proposed NSPS"); Emission Guidelines: Municipal Waste Combustors, 54 Fed.Reg. 52,209 (1989) ("1989 Proposed Guidelines"). The proposed standards did not require that any particular technology be installed in MWC units to control emissions; rather, they established limits on the levels of certain pollutants that MWC units could emit, and derived these limits from studying the level of emissions achievable with the best pollution control technology. In establishing these emission limits, the standards distinguished among MWC units based on whether the unit was built after or was already existing at the time the standards were proposed and on the aggregate MSW capacity of the plant at which a MWC unit was located. MSW capacity was defined as the maximum amount of MSW that could be combusted daily at a unit, and aggregate MSW plant capacity was defined as the sum of the MSW capacities of all of the MWC units at the same location. 1989 Proposed NSPS, 54 Fed.Reg. at 52,255, 52,261-62; 1989 Proposed Guidelines, 54 Fed Reg. at 52,213, 51,219-20. 5 The proposed standards for new units located at plants with an aggregate capacity greater than 250 tons per day ("tons/day") ("large new units"), and existing units located at plants with an aggregate MSW capacity above 2,200 tons/day ("regional existing units"), were based on the emissions control achievable with the highest efficiency scrubber system, a spray dryer/fabric filter system ("SD/FF"). The standards for new units located at plants with an aggregate capacity of 250 tons/day or less ("small new units") and existing units located at plants with an aggregate MSW capacity above 250 tons a day and up to 2,200 tons/day ("large existing units"), were based on the emissions control achievable with an intermediate scrubber system, such as dry sorbent injection/fabric filter ("DSI/FF") system or a dry sorbent injection/electrostatic precipitator ("DSI/ EPS") system.1 The standards for existing units located at plants with an aggregate MSW capacity of 250 tons/day or less ("small existing units"), on the other hand, did not necessitate the use of any scrubber technology because the EPA decided that its cost for these small plants would be unreasonable. Instead, the standards for small existing MWC units only required that these plants employ an ESP, the minimum control technology available to reduce emissions of particulate matter, and, like all MWC units, follow good combustion practices ("GCP") and meet certain material separation requirements.2 1989 Proposed NSPS, 54 Fed.Reg. at 52,254, 52,272; 1989 Proposed Guidelines, 54 Fed.Reg. at 52,012-52,228-30. 6 Congress responded to the EPA's 1989 proposed standards by enacting section 129, specifically addressed to solid waste incineration units, as part of Title III of the 1990 CAA amendments. Section 129(a)(1) directs the EPA to establish emission standards for solid waste incineration units, including NSPS directly applicable to new units and emission guidelines applicable to existing units by way of state implementation plans.3 42 U.S.C. § 7429(a)(1). Congress defined a "solid waste incineration unit" as "a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments or the general public." 42 U.S.C. § 7429(g)(1). Certain incinerators, such as units requiring permits under the Solid Waste Disposal Act or materials recovery facilities, were excluded from the definition of a solid waste incineration unit. Id. MSW was defined as "refuse ... collected from the general public and from residential, commercial, institutional and industrial sources" and units combusting a fuel stream that is comprised of 30 percent or less of MSW were excluded from the definition of MWC units and from the standards applicable to MWC units.4 Id. § 7429(g)(5). 7 Section 129(a)(2) lays out the methodology the EPA must use in setting the emissions standards, referred to as maximum achievable control technology ("MACT") standards, and requires that the standards "shall reflect the maximum degree of reduction in emissions of ... [certain listed air pollutants] that the [EPA], taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing units in each category." Id. § 129(a)(2). The EPA "may distinguish among classes, types, ... and sizes of units within a category in establishing [MACT] standards," but the EPA's discretion to determine the stringency of MACT standards is limited; the MACT standards must be at least as stringent as the MACT floor. The MACT floor is defined as either "the emissions control ... achieved in practice by the best controlled similar unit" for "new units in a category," or as "the average emissions limitation achieved by the best performing 12 percent of units in the category" for existing units. Id. This description of the MACT methodology demonstrates that the demarcation of the relevant categories of solid waste incineration units is central to the regulatory scheme established in section 129. The importance of how a category of units is defined is clearest in regard to existing units, whose MACT floor is the lowest level of emissions achieved by the best controlled 12 percent of units in a category; the MACT floor will obviously be lower if the category includes more units with advanced pollution control devices than if the category contains fewer units with such devices. But how the categories are defined proves important also with respect to new units, since the standards for a new unit in a given category will be based on the best performing similar unit, which will be another unit in that category. 8 Section 129 also identified the pollutants for which the EPA must issue emissions standards and set deadlines by which the standards must be issued. Section 129(a)(4) required that the EPA "specify numerical emission limitations" for certain substances and mixtures, some of which (cadmium, lead, mercury and fly/bottom ash) were not covered by the proposed 1989 standards. Id. § 7429(a)(4). The schedule set out in section 129(a)(1) is as follows: standards for MWC units with a MSW capacity above 250 tons/day were to be promulgated by November 15, 1991; standards for MWC units with a MSW capacity of 250 tons/day or less and for units combusting hospital, medical or infectious waste were to be promulgated by November 15, 1992; and standards for units combusting commercial and industrial waste were to be proposed by November 15, 1993 and promulgated by November 15, 1994. Id. § 7429(a)(1). The EPA was also required to publish a schedule by May 15, 1992, indicating when standards for other categories of solid waste incineration units would be promulgated. 9 At the time of the 1990 CAA amendments, the EPA was under a court deadline to promulgate final standards for new and existing MWC units. Standards of Performance for New Stationary Sources: Municipal Waste Combustors, 56 Fed.Reg. 5488, 5488 (1991) ("1991 NSPS"); Emissions Guidelines: Municipal Waste Combustors, 56 Fed.Reg. 5514, 5514 (1991) ("1991 Guidelines"). In setting a deadline for the promulgation of standards for MWC units with a capacity greater than 250 tons/day, Congress stated that it did not intend to disturb any court ordered schedule, and that standards issued pursuant to such a schedule should be subsequently modified, if necessary, to conform to section 129. Id. The EPA therefore only issued final standards applicable to new and existing units with unit MSW capacities greater than 250 tons/day. The final standards, issued in 1991, differed somewhat from those proposed in 1989. The standards for new units were based on the emissions control obtainable not only with a SD/FF system, as proposed, but also with selective noncatalytic reduction ("SNCR").5 In promulgating the final 1991 standards for existing units, the EPA changed the categorization of units it had proposed in 1989, eliminating the "regional unit" category and instead distinguishing between "very large units," which were units located at plants with aggregate MSW capacities above 1,100 tons/day, and "large units," which were units located at plants with aggregate MSW capacities above 250 tons/day up to and including 1,100 tons/day. The standards for very large units were based on the emissions control obtainable with a SD/ESP system, whereas the standards for large units were based on the control obtainable with a DSI/ESP system. The 1991 standards dropped the materials separation requirement proposed in 1989 because of cost concerns, but the GCP requirement for all units remained. 1991 NSPS, 56 Fed.Reg. at 5490; 1991 guidelines, 56 Fed.Reg. at 5516-17. 10 The EPA proposed new standards for MWC units, based on section 129 and the MACT methodology, on September 20, 1994. See Standards of Performance for New Stationary Sources: Municipal Waste Combustors, 59 Fed.Reg. 48,198 (1994) ("1994 Proposed NSPS"); Emissions Guidelines: Municipal Waste Combustors, 59 Fed.Reg. 48,228 (1994) ("1994 Proposed Guidelines"). The 1994 proposed standards imposed more stringent emissions limits than the 1991 standards and covered more MWC units.6 1994 Proposed NSPS, 59 Fed.Reg. at 48,200-02, 48,205; 1994 Proposed Guidelines, 59 Fed.Reg. at 48,230-32. As required by the MACT methodology, the EPA first calculated MACT floors based on the emissions control achieved by the best controlled similar unit for new units, or the emissions control achieved by the best performing 12 percent of units in the same category for existing units. In determining which units were similar or in the same category for the purposes of setting MACT floors, the 1994 proposed standards differentiated among both new and existing units based on the aggregate MSW capacity of the plant at which the MWC unit was located rather than on the capacity of the individual MWC unit. Like the earlier standards, the 1994 proposed standards defined aggregate MSW plant capacity as the sum of the maximum amount of MSW each MWC unit located at a particular site is designed to combust daily. MWC units were then grouped for MACT standard-setting purposes into those with an aggregate MSW capacity greater than 250 tons/day ("large plants") and those with an aggregate MSW capacity greater than 35 megagrams per day ("Mg/day") up to and including 250 tons/day ("small plants").7 1994 Proposed NSPS, 59 Fed.Reg. at 48,198, 48,202, 48,212-13; 1994 Proposed Guidelines, 59 Fed.Reg. at 48,231-32, 48,244. 11 The EPA kept the MACT standards for several pollutants at the MACT floors for both new and existing units, because it concluded that going beyond the MACT floor would impose significant retrofitting costs that were unreasonable given the limited additional pollution control that stricter standards would achieve. The MACT floors for new units at large plants were based on a SD/FF system with SNCR and activated carbon injection ("CI"), while the MACT floors for existing units at large plants were based on a SD/FF or SD/ESP system with SNCR and carbon injection.8 The MACT floors for new units at small plants, on the other hand, were based on a SD/FF system with CI and the MACT floors for existing units at small plants were based on only a DSI/ESP system and carbon injection. 1994 NSPS, 59 Fed.Reg. at 48,213-16; 1994 Proposed Guidelines, 59 Fed.Reg. at 48,232-33, 48,245-49. Units located at plants with a MSW capacity between 25 Mg/day and 35 Mg/day were required to submit initial reports but were not subject to emission controls. 1994 NSPS, 59 Fed.Reg. at 48,212-16; 1994 Proposed Guidelines, 59 Fed.Reg. at 48,242-49. All units subject to the standards were required to comply with the GCP specified in the 1991 standards, with new training and MWC operator requirements; additional siting and material separation plan requirements were imposed on new units. 1994 Proposed NSPS, 59 Fed.Reg. at 48,206, 48,219-22; 1994 Proposed Guidelines, 59 Fed.Reg. at 48,232, 48,235. 12 On December 19, 1995, the EPA promulgated the 1994 proposed standards in final form, with a few modifications. 1995 Standards, 60 Fed.Reg. 65,387. The major changes were the following: new and existing MWC units located at plants with aggregate MSW capacities greater than 35 Mg/day, but actually combusting less than 10 Mg/day of MSW and limited to this lower level by permit, were exempt from the standards and were only required to file an initial report on their operations; new and existing MWC units with a total capacity of 25 to 35 mg/day were exempted from initial notification requirements; and the MACT floor for nitrogen oxides for both new and existing units was determined separately for each type of combustor. 1995 Standards, 60 Fed.Reg. at 65,401-44. Notably, the 1995 final standards retained the proposed approach of creating categories of MWC units based on the aggregate MSW capacity of the plants at which the units are located. The final standards also retained the proposed definition of a MWC as "any setting or equipment that combusts MSW," and further continued to exclude cofired combustors, which burn MSW along with non-MSW materials, from the scope of the standards, provided only 30 percent or less of the combustor's fuel stream was MSW. Id. at 65,391-95, 65,398-99. 13 Petitioners operate existing MWC units that have unit MSW capacities below 250 tons/day, but are located at plants with an aggregate MSW capacity above 250 tons/day. Including petitioners' units, there are 45 units located at 18 plants in this status. Because the 1995 standards categorize units by aggregate plant MSW capacity for purposes of determining the MACT floor, these units are currently grouped with large existing units. Since large existing units generally have the most efficient pollution control systems of any existing units, the MACT floor derived from the emissions of large existing units is very stringent. Petitioners argue that if MWC units were instead categorized by unit MSW capacity for the purpose of determining MACT floor, their units would be subject to less stringent emissions levels, because they would be grouped with smaller units that have less efficient pollution control systems and thus higher MACT floors.9 Petitioners' MWC units are currently equipped with DSI/ESP systems, and in order to meet the 1995 standards the units would have to be retrofit with SD, CI and possibly SNCR devices, at a substantial cost. 14 After the 1995 standards were issued, petitioners and CKRC filed the challenges at issue here. This court subsequently denied the EPA's request for a voluntary remand to supplement the record and stayed the 1995 standards pending the outcome of this appeal. II. DISCUSSION 15 Petitioners' main challenge is that the use of aggregate plant capacity to set the categories of MWC units for purposes of determining MACT floors and standards is inconsistent with section 129 of the CAA, which they claim requires categories of MWC units for MACT purposes to be based on unit MSW capacity. We must vacate the 1995 standards if they are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 42 U.S.C. § 7607(d)(9)(C); see also 5 U.S.C. § 706(2)(C); American Petroleum Inst. v. EPA, 52 F.3d 1113, 1119 (D.C.Cir.1995) (same standard applies under CAA and APA review provisions). As the EPA is entrusted with the responsibility of administering the CAA, the Chevron two-step analysis governs our inquiry into whether the agency's 1995 standards represent a permissible construction of section 129. If we determine that "Congress has directly spoken to the precise question at issue, that is the end of the matter; for the court ... must give effect to the unambiguously expressed intent of Congress"; but "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). In this case, our analysis need not proceed beyond Chevron's first step, for it is clear that the 1995 standards conflict with the plain meaning of section 129. A. The Language of Section 129 16 The precise question here is whether section 129 establishes different categories of MWC units based on unit MSW capacity for the purpose of determining MACT floors and standards. The language of section 129(a)(1) is critical to our analysis, and we set it out in full: 17 (a) New source performance standards10 18 (1) In general 19 (A) The Administrator shall establish performance standards and other requirements pursuant to section 7411 of this title and this section for each category of solid waste incineration units. Such standards shall include emissions limitations and other requirements applicable to new units and guidelines (under 7411(d) of this title and this section) and other requirements applicable to existing units. 20 (B) Standards under section 7411 of this title and this section applicable to solid waste incineration units with capacity greater than 250 tons per day combusting municipal waste shall be promulgated not later than 12 months after November 15, 1990. Nothing in this subparagraph shall alter any schedule for the promulgation of standards applicable to such units under section 7411 of this title pursuant to any settlement and consent decree entered by the Administrator before November 15, 1990: Provided, That, such standards are subsequently modified pursuant to the schedule established in this subparagraph to include each of the requirements in this section. 21 (C) Standards under section 7411 of this title and this section applicable to solid waste incineration units with capacity equal to or less than 250 tons per day combusting municipal waste and units combusting hospital waste, medical waste and infectious waste shall be promulgated not later than 24 months after November 15, 1990. 22 (D) Standards under section 7411 of this title and this section applicable to solid waste incineration units combusting commercial or industrial waste shall be proposed not later than 36 months after November 15, 1990, and promulgated not later than 48 months after November 15, 1990. 23 (E) Not later than 18 months after November 15, 1990, the Administrator shall publish a schedule for the promulgation of standards under section 7411 and this section applicable to other categories of solid waste incineration units. 24 It is indisputable that section 129(a)(1) expressly differentiates among units based on unit MSW capacity when it states that standards for "units with [a MSW] capacity greater than 250 [tons/day]" must be issued by November 15, 1991, while standards for "units with [a MSW] capacity equal to or less than 250 tons/day" need not be issued until November 15, 1992. The only question remaining is whether in this provision Congress intended to create two categories of MWC units based on unit capacity for the purpose of determining what emissions controls will be imposed on the units, or whether it intended only to differentiate between the two types of MWC units for regulatory scheduling purposes. The EPA maintains that section 129(a)(1) simply sets out the deadlines by which emissions standards must be promulgated and does not create two categories of MWC units for substantive regulatory purposes. Petitioners unsurprisingly contend the opposite, that section 129(a)(1) plainly establishes two separate categories of solid waste incineration units, large MWC units (units with unit MSW capacities above 250 tons/day) and small MWC units (units with unit MSW capacities of 250 tons/day or less), for which emissions controls must be separately promulgated. 25 The text and structure of section 129(a)(1) and the rest of section 129 go to show that petitioners have much the better of the argument. Section 129(a)(1) begins by stating that the EPA shall promulgate standards and guidelines for "each category of solid waste incineration units," and then proceeds to identify specific types of units and the date by which standards shall be issued for each type. The types of units identified are not only MWC units with a unit capacity above 250 tons/day and MWC units with a unit capacity of 250 tons/day or less, but also units combusting hospital and medical waste and units combusting commercial or industrial waste. The plain implication of section 129(a)(1) is that the types of units listed are the relevant categories for determining emissions standards. This implication is reinforced by the final part of section 129(a)(1), section 129(a)(1)(E), which states that the EPA shall publish a schedule indicating when standards applicable to "other categories of solid waste incineration units" will be promulgated. The reference to the EPA's authority to identify and set promulgation deadlines for other categories of solid waste incineration units plainly implies that certain categories of these units have already been identified. This interpretation is bolstered by the fact that at no other point in section 129 are any categories of solid waste incineration units identified in prior parts of the section. Instead, the language used in the following parts of section 129 assumes that the basic categories of solid waste incineration units have already been set and proceeds to give guidance on how the EPA should treat different units within the categories in determining emission standards, emphasizing in particular that the EPA is to distinguish between new and existing units within a category. For example, section 129(a)(2) instructs the EPA to require the maximum degree of emissions control that the EPA determines "is achievable for new or existing units in each category," specifies that the EPA is to follow a different methodology in calculating MACT floor for new and existing units and authorizes the EPA to set "[e]missions standards for existing units in a category [that are] ... less stringent than standards for new units in the same category," provided the standards for existing units are at least as stringent as the MACT floor. 26 Significantly, the EPA does not dispute that section 129(a)(1) sets out the basic categories of solid waste incineration units. According to the EPA, however, section 129(a)(1) should be read as differentiating among units on the basis of the type of waste being combusted, and thus the categories of units created in section 129(a)(1) are units combusting MSW (MWC units), units combusting medical, hospital and infectious waste, and units combusting commercial and industrial waste. The EPA maintains that reading the regulatory deadlines in section 129(a)(1) as establishing the different categories of solid waste incineration units would actually run counter to the legislative mandate, because this approach would preclude differentiation among units by the type of waste combusted. According to the EPA's view of petitioners' statutory argument, small MWC units and units combusting hospital waste, medical waste, and infectious waste would have to be considered as one category because these units are both listed in the same clause of section 129(a)(1) and assigned the same promulgation deadline. We have difficulty in following the EPA's logic. Section 129(a)(1) creates two categories of MWC units not simply because it imposes different dates by which the standards for large and small MWC units must be promulgated, but more compellingly because it separately defines these two types of MWC units. Since section 129(a)(1) also separately identifies units combusting hospital, medical, and infectious waste and units combusting commercial and industrial waste, these represent two additional categories of solid waste incineration units. Thus, the most logical and straightforward reading of section 129(a)(1) is that it establishes four categories of solid waste incineration units--MWC units with a unit capacity above 250 tons/day, MWC units with a unit capacity of 250 tons/day or less, units combusting hospital, medical and infectious waste, and units combusting commercial or industrial waste. 27 The EPA's claim that section 129(a)(1) is simply a scheduling provision is also implausible in light of the regulatory scheme detailed in the following subsection of the statute, section 129(a)(2). See Ethyl Corp. v. EPA, 51 F.3d 1053, 1061 (D.C.Cir.1995) (drawing on a neighboring CAA provision in determining that the EPA's interpretation of its authority to issue waivers for fuel additives violated the plain meaning of section 211(f)(4) of the CAA). Under the MACT methodology set out in section 129(a)(2), the emission standards must be at least as stringent as the MACT floors, and MACT floor for existing units is defined as the average level of emissions achieved by the best performing 12 percent of units in a category. Therefore, in order to promulgate emissions standards, the EPA must first calculate MACT floors, and the EPA cannot calculate the MACT floors until it has studied the emissions levels of all the units in the relevant category. When this MACT methodology set out in section 129(a)(2) is viewed in light of the regulatory deadlines established in section 129(a)(1), it becomes apparent that Congress must have intended large and small MWC units to represent separate categories of solid waste incineration units. If large MWC units are a separate category of units, the EPA can set emissions standards for these units before it gathers data on emissions at small MWC units; but if large and small MWC units are in the same category, the EPA cannot set standards for large MWC units until it has studied emissions at small MWC units, because the EPA would need this emissions data to calculate MACT floors. 28 That the EPA was able to avoid this dilemma in practice only by simultaneously studying emissions at all MWC units and then simultaneously promulgating new standards for large and small MWC units in 1994 does not detract from the plain import of the section's language and structure, which assumes differently timed regulatory actions. While section 129 certainly does not preclude the EPA from simultaneously studying and promulgating standards for large and small MWC units, nothing in section 129 either requires or even suggests such simultaneous action. Rather, it is clear from the text of section 129(a)(1), setting out different deadlines for when standards for large and small MWC units are to be promulgated, that Congress anticipated separate promulgation. The EPA's approach essentially reads these different deadlines out of the statute, and it is of course a well-established maxim of statutory construction that courts should avoid interpretations that render a statutory provision superfluous. Pennsylvania Dep't of Pub. Welfare v. Davenport, 495 U.S. 552, 562, 110 S.Ct. 2126, 2132, 109 L.Ed.2d 588 (1990); Alabama Power Co. v. EPA, 40 F.3d 450, 455 (D.C.Cir.1994). In the final analysis the only interpretation of section 129's language that both gives meaning to the regulatory deadlines in section 129(a)(1) and coheres with the MACT methodology set out in section 129(a)(2) is one that reads section 129(a)(1) as creating two categories of MWC units for regulatory purposes, namely large and small MWC units. 29 The EPA points to section 129(a)(2), which states that the EPA "may distinguish among classes, types ... and sizes of units within a category in establishing [MACT] standards" as evidence that section 129 authorizes the EPA to group MWC units by aggregate plant capacity for MACT purposes. 42 U.S.C. § 7429(a)(2). According to the EPA, it has merely exercised its discretion under section 129(a)(2) and differentiated among three classes of MWC units: those located at plants with an aggregate MSW capacity above 250 tons/day, those located at plants with an aggregate MSW capacity of 250 tons/day or less, and those located at plants with an aggregate MSW capacity of 35 Mg/day or less. But this justification for the aggregate plant capacity approach of the 1995 standards assumes that Congress put all MWC units in one category in section 129(a)(1), since section 129(a)(2) only gives the EPA discretion to distinguish among units within a category. As discussed above, however, this assumption is indefensible in light of the distinction in section 129(a)(1) between MWC units with unit capacities above 250 tons/day and MWC units with unit capacities of 250 tons/day or less. 30 Given that section 129(a)(1) created these two categories of MWC units, section 129(a)(2) actually serves as further evidence that the aggregate plant capacity approach used in the 1995 standards violates the plain meaning of section 129. In section 129 Congress notably did not give the EPA much discretion to create categories of solid waste incineration units; rather, it listed several categories of solid waste incineration units and only allowed the EPA discretion to identify "other categories of solid waste incineration units." In contrast, section 111 of the CAA, which applies to all stationary sources of air pollutants, and section 112, which applies to all stationary sources of hazardous air pollutants, give the EPA substantial discretion to create categories of sources for which standards must be promulgated. 42 U.S.C. § 7411(b)(1)(A); 42 U.S.C. §§ 7412(c)(1), 7412(c)(3). Neither the provision of discretionary authority to distinguish "within a category" in section 129(a)(2), nor the grant of authority to identify categories of air pollution sources in section 111, can, however, be used so as to eradicate the very specific limits placed on the EPA's authority to create categories of solid waste incineration units laid out in section 129(a)(1).11 See, e.g., Mead Corp. v. Browner, 100 F.3d 152, 155-56 (D.C.Cir.1996) (EPA's general power to group hazardous waste sites for response purposes under CERCLA does not authorize the EPA to include a site on national site list that does not meet statutory listing criteria simply by grouping it with sites that do meet criteria); American Petroleum Institute, 52 F.3d at 1119 ("EPA cannot rely on its general authority to make rules necessary to carry out its functions when a specific statutory directive defines the relevant functions of EPA in a particular area"). Sections 111 and 112 act as counterindicators to the EPA's interpretation, since they illustrate that Congress knew how to bestow such category-defining discretion when it wanted to do so. B. The Legislative History of Section 129 31 The EPA also defends its aggregate plant capacity approach by citing to the legislative history of section 129, which it says demonstrates that Congress intended to allow the EPA to establish its own categories of units, including categories based on aggregate plant capacity, in order to realize the congressional purpose behind section 129. Even though we find the meaning of section 129(a)(1) clear from its text, we will examine the legislative history of section 129 to determine whether reading section 129 according to its literal meaning will frustrate congressional intent. Ordinarily, "[t]he plain meaning of legislation should be conclusive, except in the 'rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.' " United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)) (alterations in original); see also Environmental Defense Fund v. EPA, 82 F.3d 451, 468-69, as amended, 92 F.3d 1209 (D.C.Cir.1996). "[L]iteral interpretation need not rise to the level of 'absurdity' before recourse is taken to the legislative history, ... [but] there must be evidence that Congress meant something other than what it literally said before a court can depart from plain meaning." Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1088 (D.C.Cir.1996) (citation omitted). An examination of the legislative history here fails to provide the requisite evidence that reading section 129 as creating two categories of MWC units based on unit capacity would frustrate legislative purpose or otherwise violate the intent of its drafters; indeed, we believe it demonstrates the opposite. 32 The language and structure of section 129 changed dramatically as the 1990 CAA amendments wound their way through Congress. The House did not include any provision on solid waste incineration in the bill it initially passed and sent to conference, and there was no informative discussion of section 129, after it appeared in the conference bill. See 136 CONG. REC. 11,904 (daily ed. May 23, 1990) (Statement of Rep. Bliley), reprinted in 2 COMM. ON ENV'T & PUB. WORKS, 103D CONG., A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS 2724 (1993) ("LEGISLATIVE HISTORY"'). Consequently, the only relevant history of section 129 comes from the Senate's deliberations. A provision on municipal combustion was contained in the reported version of Senate Bill 1630, the legislation embodying the CAA amendments. This early version of section 129 (which at this point was actually section 130) differed dramatically from the finally enacted section 129; for example, it addressed only municipal waste combustion, required that the EPA use the best available control technology approach then in use in section 211 of the CAA in promulgating standards, did not differentiate between new and existing units in specifying how standards would be calculated or provide for the EPA to take costs into account in setting emission controls. S. 1630, 101st Cong., § 130 (as reported), reprinted in 5 LEGISLATIVE HISTORY, at 8154-80. An amendment offered by Senator Dole on the floor after the bill was reported out of committee, which was also supported by the bill's managers and sponsors, embodied much of the language of the present section 129(a)(1), including the separate promulgation deadlines for MWC units with unit capacities above 250 tons/day and MWC units with unit capacities of 250 tons/day or less. 136 CONG. REC. 6549 (daily ed. Apr. 3, 1990), reprinted in 4 LEGISLATIVE HISTORY, at 7250. Although the Senate amendment required the EPA to distinguish among classes, sizes and types of units within a category, this mandatory language was changed in conference to permit rather than require the EPA to do so. In addition, section 129(a)(2) was changed in conference to incorporate the MACT methodology, which was also applied to section 112 of the CAA, replacing the best achievable control technology approach and the caveat was added that section 129's deadlines were not to displace any court-ordered schedule. H.R. CONF. REP. No. 952, 101st Cong., 2d Sess. at 187-88 (1990), reprinted in 1 LEGISLATIVE HISTORY, at 1637-38. 33 From our reading, we can discern no clear congressional understanding as to what categories of solid waste incineration units were created by section 129. Senator Dole did not specifically discuss how the different categories of solid waste incineration units would be identified when he offered his amendment. However, he did state that he offered the amendment so that standards applicable to "large municipal incinerators" would not be imposed on all incinerators and described the difficulties these standards would pose for hospital and medical waste incinerators, "smaller modular incineration systems widely used ... for dealing with municipal waste for rural areas and small communities," and for "[i]ndustrial incinerators." 136 CONG. REC. 6400 (daily ed. Apr. 3, 1990), reprinted in 4 LEGISLATIVE HISTORY, at 7049-50. His comments, if anything, point in the direction that section 129(a)(1) was intended to create four categories of units--large MWC units, small MWC units, hospital and medical units and industrial units--as indeed the plain language of section 129(a)(1) suggests. On the other hand, post-conference statements on the Senate floor by a sponsor and a manager of the bill, Senators Durenberger and Chafee, respectively, indicate that they thought units would be divided into categories according to the type of waste combusted and that all MWC units would be in one category. Senator Durenberger stated that section 129 "requires EPA to issue new source performance standards for municipal incinerators, for medical waste incinerators and for incinerators burning commercial and industrial waste," while Senator Chafee commented that "[t]he conference agreement includes provision to control the air emissions from municipal, hospital and other commercial and industrial incinerators." 136 CONG. REC. 6401 (daily ed. Apr. 3, 1990) (Statement of Sen. Durenberger), reprinted in 4 LEGISLATIVE HISTORY, at 7052; 136 CONG. REC. S16,955 (daily ed. Oct. 27, 1990) (Statement of Sen. Chafee), reprinted in 1 LEGISLATIVE HISTORY, at 952. Meanwhile, remarks by Senator Baucus, the other Senate manager, stating that "the Administrator[,] in establishing MACT for incinerators is directed to establish different categories for units combusting municipal waste with capacity greater than 250 tons per day, units with capacity less than 250 tons per day combusting municipal waste and medical waste, and for units combusting commercial or industrial waste," suggest that he believed not only that there would be two categories of MWC units, based on unit capacity, but also that smaller MWC units and units combusting medical waste would be in the same category. 136 CONG. REC. S16,979 (daily ed. Oct. 27, 1990), reprinted in 1 LEGISLATIVE HISTORY, at 1031; see also 136 CONG. REC. 6402 (daily ed. Apr. 3, 1990) (Statement of Sen. Baucus) (amendment embodying section 129 "directs EPA to establish one set of standards for municipal incinerators, another set for hospital incinerators and small units, and another set for industrial incinerators."), reprinted in 4 LEGISLATIVE HISTORY, at 7054. The inconsistencies in the comments of different Senators is not surprising; the provisions of section 129 are highly technical, and the impact of the different descriptions of section 129(a)(1)'s categories would have been difficult to foresee. Inevitably, such a plethora of inconsistent statements provides too "meager [a] record" for us to conclude that Congress intended to create a single category of MWC units, particularly "given the clear statutory language" to the contrary. Engine Mfrs. Ass'n, 88 F.3d at 1091; see also Qi-Zhuo v. Meissner, 70 F.3d 136, 140 (D.C.Cir.1995) ("in the realm of legislative interpretation, inconsistent history certainly cannot override plain language"). 34 The legislative history does demonstrate that in enacting section 129 Congress sought to force the EPA to impose stricter emission standards on MWC. The 1989 proposed regulations formed the backdrop to Congress' passage of section 129, and it is evident that Congress believed the 1989 proposed standards did not impose adequate emissions control, especially in regard to the smaller existing units that were exempted from having to install any scrubber devices. The legislation embodying the 1990 CAA amendments specifically directed the EPA to reconsider its proposed 1989 emissions standards for "small new units and for existing units" in light of the new MACT methodology. 42 U.S.C. § 7429, Note (Review of Acid Gas Scrubbing Requirements); see also H.R. CONF. REP. No. 101-952, at 342 ("Proposed requirements for units smaller than 250 tons per day should be reconsidered in light of the new provisions of section 129."), reprinted in 1 LEGISLATIVE HISTORY, at 1792. In the Senate debates, Senator Durenberger commented that although the EPA's approach at that juncture was a "credible effort," the EPA's standards were "not as protective as the standards ... sought in legislation," and that section 129 would require significantly more units to install scrubbers than the 1989 proposed standards. 136 CONG. REC. S16,924 (daily ed. Oct. 27, 1990), reprinted in 1 LEGISLATIVE HISTORY, at 857-58. Senator Baucus agreed, stating that "EPA is to review its proposal with respect to the acid gas scrubber requirement for all existing units.... EPA proposed a scrubber requirement for some very large existing units and no requirement for smaller units. Whether that determination properly implements this new standard is in doubt." 136 CONG. REC. S17,241 (daily ed. Oct. 26, 1990), reprinted in 1 LEGISLATIVE HISTORY, at 1137; see also 136 CONG. REC. 6403 (daily ed. Apr. 3, 1990) (Statement of Sen. Baucus) ("EPA's proposal is not adequate [in part because] ... it is limited to large municipal incinerators"), reprinted in 4 LEGISLATIVE HISTORY, at 7056. 35 Reading section 129 as categorizing MWC units based on unit capacity instead of aggregate plant capacity will not frustrate Congress' purpose of forcing the EPA to impose more stringent emissions controls on existing units. Even if MWC units are categorized based on unit capacity, the standards for existing MWC units will still be more stringent than those proposed in 1989 because of the MACT methodology, and all MWC units with a capacity above 35 Mg/day will have to install some form of scrubber equipment. More importantly, as the EPA itself admits, the effect of recalculating MACT floors based on unit capacity instead of aggregate plant capacity will be to make the standards applicable to small existing units significantly more stringent than in the 1995 standards. Most small existing units that have unit MSW capacities lower than 250 tons/day are currently grouped in the small plant category; the only exceptions are the 45 units (including petitioners' units) that have unit MSW capacities below 250 tons/day but are located at plants with aggregate plant capacities above 250 tons/day. The effect of recalculating MACT floors based on unit capacity will be to replace this small plant category with a new "small unit" category that contains not only the units that were previously in the small plant category, but also these additional 45 MWC units. Many, if not most, of these 45 MWC units have more effective pollution control systems than the existing units that were in the small plant category. Since MACT floors are calculated by determining the level of emissions achieved by the best performing 12 percent of units in a category, grouping these 45 MWC units with the units that were in the small plant category will result in new MACT floors that are more stringent than the MACT floors that were calculated for the small plant category in 1995. The actual emissions standards will similarly be more stringent, because, as discussed above, section 129 requires that the actual standards must be at least as stringent as the MACT floors. The only way that this result can be avoided is if the EPA exercises its discretion to distinguish among units within a category and creates subcategories of small units, for which it can then calculate MACT floors and standards separately. 36 It is true that categorizing on the basis of unit capacity may make the standards applicable to petitioners' units and other similarly situated units less stringent. While these units have more effective pollution control equipment than most units currently in the small plant category, they also have less effective equipment than most units currently in the large plant category. Consequently, petitioners' units and other similarly situated units will encounter less stringent MACT floors, and most likely less stringent actual emission standards, when grouped with small units than they would when grouped with large units, even accounting for the increased stringency that will result from including these units in the new small unit category.12 But it is not at all apparent that this potential loss in emissions control goes against Congress' intent in enacting section 129. At the same time as it sought greater emissions control, Congress clearly did not intend that all units should be required to adhere to emissions controls of the same stringency. This intention was evident to some degree in the reported version of Senate Bill 1630, which authorized the EPA to distinguish among units based on the type of combustion technology or pollution control equipment the units employed. It became much more apparent once Senate Bill 1630 was amended to require the EPA to differentiate among categories of solid waste incineration units and between new and existing units, to consider costs, non-air quality health and environmental impacts and energy requirements in determining whether to set emissions standards that are more stringent than the MACT floor, and to allow the EPA to distinguish among classes, types and sizes of units in setting standards. According to Senator Dole, the purpose of the new language was to insure that "real and important differences in size, class and type of technology ... are recognized," so that the use of incineration as a waste disposal method did not become economically infeasible. 136 CONG. REC. 6400 (daily ed. Apr. 3, 1990), reprinted in 4 LEGISLATIVE HISTORY, at 7049; see also 136 CONG. REC. S17,238-39 (daily ed. Oct. 26, 1990) (Statement of Sen. Dole) (discussing provisions of S. 1630 after conference), reprinted in 1 LEGISLATIVE HISTORY at 1129-31. Other Senators critically involved in the 1990 CAA amendments agreed, arguing that the new language would give the EPA greater flexibility to take important distinctions among units into account. 136 CONG. REC. 6402 (daily ed. Apr. 3, 1990) (Statement of Sen. Baucus), reprinted in 4 LEGISLATIVE HISTORY, at 7054; 136 CONG. REC. S17,238-39 (daily ed. Oct. 26, 1990) (Statement of Sen. Durenberger) (responding to Sen. Dole's comments on S. 1630 after conference), reprinted in 1 LEGISLATIVE HISTORY, at 1129-31. 37 Section 129 thus represents a compromise between competing concerns and purposes; Congress wanted both to impose more stringent emission controls on incinerators and not to foreclose the use of incineration by imposing such stringent standards that smaller units could not feasibly meet them. In a context of competing legislative purposes, it is often difficult to determine whether an interpretation of a statute frustrates or advances congressional purposes; since if a "provision strikes a balance between competing policies, ... any adjustment of the balance to favor one policy would inevitably 'frustrate' another." Engine Mfrs. Ass'n, 88 F.3d at 1089 n. 42; see also Natural Resources Defense Council v. EPA, 822 F.2d 104, 113 (D.C.Cir.1987) ("[w]hile a broad policy goal may well be the animating force driving the legislation, achievement of actual passage of the measure invariably requires compromise and accommodation."). Given Congress' emphasis on "real differences," such as size, among solid waste incineration units, and the fact that recategorizing units based on unit capacity may result in stricter emissions controls for some units, we are unable to conclude that any potential loss in emissions control at petitioners' and other similarly situated units would so frustrate the legislative purpose behind section 129 as to allow us to ignore the provision's plain language. 38 The EPA additionally argues that the legislative history of section 129 demonstrates that Congress meant unit capacity to refer to aggregate plant capacity, and thus, "as a matter of historical fact, Congress did not mean what it appears to have said." Engine Mfrs. Ass'n, 88 F.3d at 1089. The EPA bases this argument on the frequent remarks by members of Congress indicating that they believed they were "build[ing] upon the EPA proposal" in enacting section 129. 136 CONG. REC. S16,924 (daily ed. Oct. 27, 1990) (Statement of Sen. Durenberger), reprinted in 1 LEGISLATIVE HISTORY, at 857; 136 CONG. REC. 6403 (daily ed. Apr. 3, 1990) (Statement of Sen. Baucus), reprinted in 4 LEGISLATIVE HISTORY, at 7056; 136 CONG. REC. H12,863 (daily ed. Oct. 26, 1990) (Statement of Rep. Bliley), reprinted in 1 LEGISLATIVE HISTORY, at 1225. According to the EPA, this suggests that Congress did not perceive the categorization scheme set out in section 129 as different from that in the 1989 proposed standards, which distinguished among units based on aggregate plant capacity, not unit capacity. The EPA also notes that the conference report and comments by the Senate managers and sponsors frequently refer to the standards for "small units" contained in the 1989 proposed standards, but in fact the regulations did not propose standards for "small units" but for MWC units located at "small MWC plants." See, e.g., H.R. CONF. REP. No. 101-952, at 342 (stating that "[p]roposed requirements for units smaller than 250 tons per day should be reconsidered," rather than that proposed requirements for units located at plants smaller than 250 tons/day should be reconsidered), reprinted in 1 LEGISLATIVE HISTORY, at 1792; 136 CONG. REC. S17,241 (daily ed. Oct. 26, 1990) (Statement of Sen. Baucus) (stating that "EPA proposed a scrubber requirement for some very large existing units and no requirement for smaller units," although the EPA actually had proposed scrubber requirements for units at large plants and exempted units at small plants), reprinted in 1 LEGISLATIVE HISTORY, at 1137; 136 CONG. REC. S16,924 (daily ed. Oct. 27, 1990) (Statement of Sen. Durenberger) (noting that Senate was delaying the promulgation date of standards "for the small units" so that the EPA could determine whether these units should remain exempt from scrubber requirements, even though the EPA had only exempted units at small plants from scrubber requirements); reprinted in 1 LEGISLATIVE HISTORY, at 858. 39 All well and good, but an examination of the definition of "solid waste incineration unit" contained in section 129 itself reveals that Congress unequivocally defined a solid waste incineration unit as "a distinct operating unit of any facility" that combusts solid waste. 42 U.S.C. § 7429(g)(1). In the 1995 and earlier standards, which used aggregate plant MSW capacity as the dividing line between categories of MWC units, "plant" was defined to mean the same thing as facility. The 1995 standards define a plant as "one or more [MWC] units at the same location" and use plant and facility interchangeably in identifying the MWC units subject to particular emissions controls; for example, the NSPS for new units are described as applying to "each new MWC unit located at an MWC facility that has an aggregate [MSW] plant capacity" above 35 Mg/day. 1995 Standards, 60 Fed.Reg. at 65,391, 65,415; see also 1989 Proposed Guidelines, 54 Fed.Reg. at 52,219 ("[f]or purposes of determining the regulatory size category of an existing MWC plant, the capacity of all the existing MWCs at the same location would be aggregated"). To follow the EPA's lead and read unit capacity as meaning aggregate plant capacity in section 129 would therefore essentially equate a unit with a facility, in the face of explicit congressionally approved text providing that units and facilities are not identical. 40 The cumulative evidence thus suggests that while Congress desired to build upon the 1989 proposed standards, it did not intend to adopt the same categories of MWC units that the regulations had established, and that the phrase "small units" was simply used in congressional deliberations as a shorthand reference to units located at plants with a small aggregate plant MSW capacity. Given that section 129 distinguishes between units and facilities in its definitional subsection, it seems likely that if Congress had meant unit capacity (or to parrot the exact language of section 129(a)(1), "units with capacity") to refer to aggregate plant MSW capacity, it would have said just that. Significantly, Title III of the 1990 CAA amendments also contained provisions amending section 112 of CAA, which governs emissions of hazardous air pollutants, making it clear that the EPA was to determine the aggregate emissions of all of the stationary sources at a particular site in assessing whether a source constituted a "major source." The definition of major source added to section 112 by the 1990 CAA amendments says it "means any stationary source or group of stationary sources located within a contiguous area and under common control" that potentially emits "in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous pollutants." 42 U.S.C. § 7412(a)(1); see also 136 CONG. REC. S16,927-29 (daily ed. Oct. 27, 1990) (Statement of Sen. Durenberger) (discussing definition of major source under section 112), reprinted in 1 LEGISLATIVE HISTORY, at 864-69. We naturally find it difficult to accept that Congress would specifically instruct the EPA to determine the applicability of emissions controls on an aggregate basis in one section of the 1990 CAA amendments and not do so in neighboring section, if in fact it had the same intent regarding the second section as well. 41 We finally conclude that the 1995 standards conflict with the plain meaning of section 129 and exceed the EPA's statutory authority under section 129 of the CAA. Section 129 creates two categories of MWC units based on unit capacity, units with unit MSW capacities above 250 tons/day and units with unit MSW capacities of 250 tons/day or less. The 1995 standards ignore the categories of MWC units created in section 129 and group MWC units on the basis of aggregate MSW capacity instead of unit MSW capacity for MACT purposes. Although the EPA has some discretion to distinguish among MWC units in setting emissions standards, section 129 does not give it authority to ignore the categories that Congress established, and "[i]t is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988).III. REMEDY 42 In light of the preceding discussion, we have no choice but to vacate substantial portions of the 1995 standards, based on our conclusion that they exceed the EPA's statutory authority. It is not immediately apparent to us, however, that all of the 1995 standards must be vacated. As discussed above, the effect of recategorizing by unit capacity will be to shift some units in what is currently the large plant category to what is now the small plant category. This shift likely will not affect the NSPS for new units, regardless of unit capacity. The MACT floor for new units is the level of control achieved by the best controlled similar unit, which in the case of new units at large plants is a unit with a GCP/SD/FF/SNCR/CI system and for new units at small plants is a unit with a GCP/SD/FF/CI system. Unless the units shifted to the small plant category were the only units employing GCP/SD/FF/SNCR/CI controls--a proposition that seems highly improbable based on the record--the MACT floor and standards for new units at large plants should remain the same. Similarly, the MACT floors and standards for new units at small plants might possibly be affected by the recategorization if the units shifted used SNCR and did not use a distinguishable form of combustor (i.e., a mass burn or modular combustor), which also appears to be an unlikely scenario. 43 As MACT floors for existing units are determined by calculating the average emissions limitations achieved by the best performing 12 percent of units in a given category, recategorizing MWC units is likely to have an effect on the standards for existing units. But it may still be the case that the new MACT floors for existing units with unit capacities above 250 tons/day will be nearly the same as those proposed for the large plant category in the 1995 standards, provided the emissions control achieved by the best performing 12 percent of units that remain in the large plant category is still the level of control obtainable with a SD/FF or ESP/SNCR/CI system. On the other hand, it is clear that the recategorization will affect the MACT floors for existing units with unit capacities of 250 tons/day or less, which previously were in the small plant category. Unless the EPA subcategorizes MWC units in this category by location or other factors, the standards for these units will become significantly more stringent. 44 Thus, it is possible that only the standards applicable to existing units in the small plant category must be vacated. At oral argument, however, counsel for the EPA stated that he believed the 1995 standards would need to be vacated in their entirety if we were to decide that MWC units had to be recategorized by unit capacity. Given this acknowledgment, and the fact that it is not entirely clear from the record precisely which standards will have to be changed and to what extent, we vacate the 1995 standards in their entirety and remand to the EPA for further proceedings consistent with this opinion. On remand, the EPA may reissue those standards, if any, that are not affected by our decision if it determines that these standards are still appropriate. 45 Since we vacate the 1995 standards in their entirety, we do not reach petitioners' other challenges. We also do not reach CKRC's claim that the EPA erred in interpreting section 129 to apply to industrial furnaces such as cement kilns or its argument that the EPA cannot apply the existing or future standards to cement kilns without studying their unique operation in more depth. We recognize that, if the EPA simply reissues the standards that are not affected by recategorizing MWC units by unit capacity, CKRC may be forced to reinstitute its challenges, and CKRC's second argument, particularly, is not without plausibility. But because we vacate the 1995 standards in their entirety, our consideration of these matters awaits another day. IV. CONCLUSION 46 We hold that the EPA's use of aggregate plant MSW capacity rather than unit MSW capacity in the 1995 standards to create categories of MWC units for MACT purposes violates the plain meaning of section 129 and exceeds the EPA's statutory authority. We therefore vacate the 1995 standards in their entirety on this ground and remand to the EPA, without reaching the additional challenges raised by petitioners and CKRC. 47 So ordered. 1 SD and DSI are "scrubbers," referred to as such because they function by "scrubbing" pollutants out of the gas stream that results from combustion. In SD, lime slurry is sprayed into a SD vessel through which the gas stream flows. The lime and acid gases react to form sulfate salts. In DSI, a powdered sorbent (such as lime, hydrated lime or sodium bicarbonate) is pneumatically injected into a section of either the flue gas duct or the furnace part of a MWC unit, whereupon the sorbent reacts with acid gases to form alkali salts. To be effective, scrubbers must be used in conjunction with devices that capture particulate matter, including the salts and other substances produced by the scrubbers. FF and ESP are such devices. A FF, often referred to as a baghouse, consists of a series of cylindrical bags through which the combustion gas stream is filtered and the particulate matter released by the scrubber are captured. An ESP imparts an electrical charge to particles that causes the particulate matter in the gas stream to adhere to metal plates in the ESP. Rapping on the plates causes the particlesto fall into a hopper for disposal. See 1989 Proposed NSPS, 54 Fed.Reg. 52,263-64; Proposed Guidelines, 54 Fed.Reg. at 52,220-22; see also Office of Air Quality Planning and Standards,EPA, Pub. No. EPA-450/3-89-924c, Municipal Waste Combustors-Background Information for Proposed Standards: Post-Combustion Technology Performance (August 1989) 2 GCP are procedures designed to ensure that MWC units are properly designed, constructed, operated and maintained. Material separation involves excluding certain materials that are particularly likely to release hazardous substances when combusted, such as tires or batteries, or separating materials that can be recycled to lower the amount of MSW being combusted. 1989 Proposed NSPS, 54 Fed.Reg. at 52,263-64; 1989 Proposed Guidelines, 54 Fed.Reg. at 52,220-23 3 "Standards" is used here to refer to both NSPS and emissions guidelines 4 Section 129(g)(5) actually refers to "municipal waste" as opposed to MSW, but it is apparent from the fact that section 129 addresses solid waste incineration units that the type of municipal waste at issue is MSW 5 SNCR involves injecting of ammonia, urea, or urea and methanol into the combustor to reduce the emission of nitrogen oxides. 1994 Proposed NSPS, 59 Fed.Reg. at 48,213-24; 1994 Proposed Guidelines, 59 Fed.Reg. at 48,243-44; see also Leslie L. Sloss et al., NITROGEN OXIDES CONTROL TECHNOLOGY FACT BOOK 97-101 (1992) ("NITROGEN OXIDES FACT BOOK")) 6 Units built or modified after December 20, 1989, but before September 20, 1994, were subject to the 1991 NSPS as well as the 1994 emission guidelines. 1994 Proposed Guidelines, 59 Fed.Reg. at 48,230 7 The 1994 proposed standards, as well as the 1995 final standards, actually define large and small plants in terms of MSW capacity measured in Mg/day instead of tons/day--large plants are defined as plants with an aggregate MSW capacity above 225 Mg/day, while small plants are plants with an aggregate MSW capacity of 225 Mg/day or less. One megagram is equivalent to 2,204 pounds or 1.1 short tons, and thus 225 Mg is close to 250 tons. See 1994 Proposed NSPS, 59 Fed.Reg. at 48,198; 1994 Proposed Guidelines, 59 Fed.Reg. at 48,228. Given that the EPA treats these measurements, 225 Mg/day and 250 tons/day, as equivalent, and that the provision of section 129 at issue refers to 250 tons/day, this opinion refers to 250 tons/day instead of 225 Mg/day 8 CI involves injecting powdered activated carbon into the flue gas after combustion but before the gas stream reaches the scrubber or particulate matter devices. The carbon is a catalyst for oxidation of mercury into forms that can be more readily captured by these devices. 1994 Proposed Guidelines, 59 Fed.Reg. at 48,243-44. SNCR was not required for large existing mass burn refractory units. Proposed Guidelines, 59 Fed.Reg. at 48,233, 48,247 9 The extent of any decrease in stringency of the emissions controls applicable to petitioners' units that would result from determining MACT floors based on unit MSW capacities is unclear, as MACT floors and standards for the small plant category would have to be recalculated if petitioners' units and other similarly situated units were shifted to the category 10 Although this subsection is titled "New source performance standards," it is apparent from the references to emission guidelines and existing units in section 129(a)(1)(A) that the subsection addresses the promulgation of emissions standards for all solid waste incineration units, and not just new source performance standards for new units 11 We emphasize that we do not hold that the EPA is precluded from ever taking a unit's location into account, but simply that EPA cannot use location to override the MWC unit categories established by Congress. Section 129(a)(2) gives the EPA broad discretion to differentiate among units in a category, and there is nothing in the text of section 129(a)(2) that would prevent the EPA from subcategorizing within the two categories of MWC units established by Congress on the basis of the units' location, provided the EPA indicated why such a subcategorization was appropriate 12 Again, whether the new emission standards for petitioners' units and other similarly situated units are in fact less stringent than the emissions standards imposed on these units in 1995 will depend on whether the EPA utilizes its discretion to create subcategories within the small unit category or justifies imposing standards on these units that are more stringent than the MACT floor

FILED NOT FOR PUBLICATION JAN 20 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT DELMY NOHEMI LINARES- No. 08-72049 HENRIQUEZ, Agency No. A098-428-288 Petitioner, v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 10, 2011 ** Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges. Delmy Nohemi Linares-Henriquez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from the immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and protection under the * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference is owed to the BIA’s determination of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review factual findings for substantial evidence. Barrios v. Holder, 581 F.3d 849, 854 (9th Cir. 2009). We deny the petition for review. Linares-Henriquez testified a gang member harassed and followed her because she was young and attractive. Because there is no evidence in the record that Linares-Henriquez was targeted on account of any protected ground, substantial evidence supports the IJ’s denial of Linares-Henriquez’s asylum claim. See INS v. Elias-Zacarias, 502 U.S. 478, 482-84 (1992); see also Barrios, 581 F.3d at 856 (evidence supported conclusion that gang victimized the petitioner for economic and personal reasons rather than on account of a protected ground); Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008) (same). Because Linares-Henriquez failed to establish eligibility for asylum, she necessarily failed to meet the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). 2 08-72049  Substantial evidence also supports the IJ’s conclusion that Linares- Henriquez failed to establish eligibility for CAT relief because she did not establish a likelihood of torture in El Salvador. See Santos-Lemus, 542 F.3d at 747-48. Finally, Linares-Henriquez’s due process contention regarding the BIA’s streamlined decision is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir. 2003) (BIA’s summary affirmance procedure does not violate due process). PETITION FOR REVIEW DENIED. 3 08-72049 

NO. 07-09-0207-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JULY 20, 2009 ______________________________ IN RE JOEL L. HERNANDEZ, RELATOR _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. ON PETITION FOR WRIT OF MANDAMUS AND PROHIBITION By a petition for a writ of mandamus and prohibition, relator Joel L. Hernandez requests issuance of mandamus directing the Honorable Larry B. “Rusty” Ladd, Presiding Judge of the Lubbock County Court at Law No. 1, and Lubbock County, to conduct a “judicial inquiry” or hearing into the extension of his jail time pursuant to article 43.09 of the Code of Criminal Procedure.   See Tex. Code Crim. Proc. Ann. art. 43.09 (Vernon 2007).   See also Tex. R. App. P. 52.1.  Relator also requests that we direct the trial court judge to act on his application for writ of habeas corpus.  We will deny relator’s petition. Relator’s petition states he currently is incarcerated in the Lubbock County Jail.  Relator was convicted in the Lubbock County Court at Law No. 1 of the misdemeanor offense of assault-domestic violence.   See Tex. Penal Code Ann. § 22.01(a) (Vernon 2007).  He was sentenced to 365 days in jail and a fine and court costs in the amount of $4309.  This Court affirmed appellant’s conviction on September 24, 2008. See Hernandez v. State, 280 S.W.3d 384 (Tex.App.–Amarillo 2008, no pet.).  According to relator’s petition, he filed an application for writ of habeas corpus with the trial court on May 26, 2009 asserting violations of his statutory and constitutional rights and requesting the trial court conduct a “judicial inquiry” as to his inability to pay the imposed fine and costs and his continued jail time pursuant to article 43.09.   In response, relator asserts, the trial court sent him a letter informing him that the court was closed until June 22, 2009 and Judge Ladd was “on vacation.” (footnote: 1) Thereafter, on June 24, relator filed his petition for writ of mandamus and prohibition with this Court, asking us to: (1) consider his petition on a “fast-track accelerated schedule;” (2) order respondents to file an accelerated reply to this petition; (3) order respondents to issue the writ process, requiring the Lubbock County District Attorney to file a reply to the writ application filed in the trial court; (4) order respondents to render a final writ decision following a mandatory evidentiary hearing; and (5) in the alternative, to transfer this case to the nearest county court at law in the event the trial court is “on vacation.” A writ of prohibition directs a lower court to refrain from doing some act while a writ of mandamus commands a lower court to do some act. In re Lambert , 993 S.W.2d 123, 126 (Tex.App.–San Antonio 1999, orig. proceeding), citing Tilton v. Marshall , 925 S.W.2d 672, 676 n.4 (Tex.1996).  Prohibition is an extraordinary proceeding and should be used sparingly. Guerra v. Garza, 987 S.W.2d 593, 594 (Tex.Crim.App.1999).   Mandamus is an extraordinary remedy available only in limited circumstances, and not for grievances that may be addressed by other remedies.   Walker v. Packer , 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding).     As noted, relator’s petition refers both to a writ of mandamus and writ of prohibition.  A writ of prohibition has three principal functions: 1) preventing interference with higher courts in deciding a pending appeal; 2) preventing an inferior court from entertaining suits that would relitigate controversies already settled by the issuing court; and 3) prohibiting a trial court's action when it affirmatively appears the court lacks jurisdiction.   Humble Exploration Co., Inc. v. Walker, 641 S.W.2d 941, 943 (Tex.App.–Dallas 1982, writ ref’d); In re Staley,  No. 07-00-0467-CV, 2001 WL 25692 (Tex.App.–Amarillo 2001, orig. proceeding).  A writ of prohibition issues only to prevent the threatened commission of a future act.   State ex rel. Rodriguez v. Onion, 741 S.W.2d 433, 435 (Tex.Crim.App. 1987).  Relator does not  ask this Court for relief consistent with a request for a writ of prohibition, and his request for such a writ will be denied. Turning to relator’s petition for a writ of mandamus, relator states he filed his application for a writ of habeas corpus in the trial court on May 26 and the court had not acted on it by the time he filed his petition in this Court on June 24.  Mandamus relief is authorized in a criminal case if the relator establishes that (1) he has no other adequate legal remedy and (2) the act sought to be compelled is purely ministerial. State ex rel. Rosenthal v. Poe , 98 S.W.3d 194, 198 (Tex.Crim.App. 2003).  Regarding the first requirement, there is no right to appeal in a misdemeanor case in which a trial judge refuses to issue a post-conviction writ of habeas corpus or to grant a hearing on the merits of the applicant's claim. Ex parte Crosley, 548 S.W.2d 409 (Tex.Crim.App.1977).  In the current matter, it is unclear that the trial court has refused to rule or hold a hearing.  Rather, it may be that the application has not been brought to the attention of the trial court. (footnote: 2) Even assuming relator’s petition establishes appeal is not available to him, however, the unavailability of an appeal does not automatically make mandamus available. See In re Piper, 105 S.W.3d 107, 110-11 (Tex.App.–Waco 2003, orig. proceeding).   In circumstances similar to those relator alleges, Texas courts have found the relator to have an adequate legal remedy by filing the application for writ of habeas corpus in another court having habeas jurisdiction.   See, e.g., In re Wiley, No. 12-07-00167-CR, 2007 WL 2178558 (Tex.App.–Tyler July 31, 2007, orig. proceeding) ; Piper , 105 S.W.3d at 110-11. See also Onion , 741 S.W.2d at 434 (district courts also have power to issue writ of habeas corpus, and Code of Criminal Procedure article 11.09 does not deprive them of that power in cases involving misdemeanors). (footnote: 3)   See generally Ex parte Schmidt , 109 S.W.3d 480, 481 (Tex.Crim.App. 2003). Here, relator’s petition is based on the assumption that a writ of mandamus issued by this Court is his only remedy.  But the law provides another legal remedy, and relator has not shown it to be inadequate.   See, e.g., In re Altschul , 236 S.W.3d 453, 456 (Tex.App.–Waco 2007, orig. proceeding) (distinguishing Piper and finding mandamus available).  Accordingly, relator’s petition for mandamus and prohibition both are denied. James T. Campbell         Justice FOOTNOTES 1:1 Relator has not provided us a copy of the letter he says he received from the trial court. See Tex. R. App. P. 52.3(k) (requiring an appendix containing, among other items, “a certified or sworn copy of any order complained of, or any other document showing the matter complained of”).   Moreover, the copy of application for writ of habeas corpus relator has provided us bears no file-mark or other indication the application was filed.  These procedural defects alone would require us to deny relator’s petition.  For purposes of this opinion, however, we will assume the accuracy of relator’s statements concerning his filing of the application.  Further, relator’s petition fails to comply with appellate rule 52.3 in several other respects, in that it contains no table of contents, index of authorities, statement of the case, or statement of jurisdiction.   Tex. R. App. P. 52.3.    2:2 Relator filed a letter with his application in which he requested that the clerk “forward a copy to the Honorable Larry B. “Rusty” Ladd, Presiding Judge, for his decision.”  The letter to the clerk is not sufficient in itself to bring the matter to the attention of the trial court. In re Solis, No. 04-04-00050-CV, 2004 WL 1336266, 82 (Tex.App.–San Antonio June 16, 2004, orig. proceeding); In re Heflin , 04-03-00302-CV, 2003 WL 21012595, at *1 (Tex.App.–San Antonio, May 7, 2003, orig. proceeding) (merely filing the matter with the clerk is not sufficient to impute knowledge of the pending pleading to the trial court); In re Chavez , 62 S.W.3d 225, 228 (Tex.App.–Amarillo 2001, orig. proceeding) (holding same). 3:3 Article 11.05 of the Code of Criminal Procedure provides: “The Court of Criminal Appeals, the District Courts, the County Courts, or any Judge of said Courts, have power to issue the writ of habeas corpus; and it is their duty, upon proper motion, to grant the writ under the rules prescribed by law.”  Tex. Code Crim. Proc. Ann. art. 11.05 (Vernon 2005).  

183 F.3d 393 (5th Cir. 1999) TEXAS OFFICE OF PUBLIC UTILITY COUNSEL; CELPAGE, INC.; SOUTHWESTERN BELL TELEPHONE COMPANY; GTE MIDWEST, INC.; LOUISIANA PUBLIC SERVICE COMMISSION, an Executive Branch Department of the State of Louisiana; COMSAT CORPORATION; PEOPLE OF THE STATE OF CALIFORNIA; PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA; IOWA UTILITIES BOARD; SOUTH DAKOTA PUBLIC UTILITIES COMMISSION; PENNSYLVANIA PUBLIC UTILITY COMMISSION; BELL ATLANTIC TELEPHONE COMPANIES; VERMONT DEPARTMENT OF PUBLIC SERVICE; GTE SERVICE CORPORATION; GTE ALASKA INCORPORATED; GTE ARKANSAS INCORPORATED; GTE CALIFORNIA INCORPORATED; GTE FLORIDA INCORPORATED; GTE SOUTH INCORPORATED; GTE SOUTHWEST INCORPORATED; GTE NORTH INCORPORATED; GTE NORTHWEST INCORPORATED; GTE HAWAIIAN TELEPHONE COMPANY INCORPORATED; GTE WEST COAST INCORPORATED; CONTEL OF CALIFORNIA, INC.; CONTEL OF MINNESOTA, INC.; CONTEL OF THE SOUTH, INC.; PUBLIC SERVICE COMMISSION OF NEVADA; CINCINNATI BELL TELEPHONE COMPANY; FLORIDA PUBLIC SERVICE COMMISSION; PEOPLE OF THE STATE OF NEW YORK; PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK; and THE STATE CORPORATION COMMISSION OF THE STATE OF KANSAS, Petitioners,v.FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. No. 97-60421 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 30, 1999 [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted] Petitions for Review of a Final Order of the Federal Communications Commission Before SMITH, DUHE, and EMILIO M. GARZA, Circuit Judges. JERRY E. SMITH, Circuit Judge: 1 This is a consolidated challenge to the most recent attempt of the Federal Communications Commission ("FCC") to implement provisions of the landmark 1996 Telecommunications Act (the "Act").1 Petitioners, joined by numerous intervenors, challenge several aspects of the FCC's Universal Service Order (the "Order") implementing the provisions of the Act codified at 47 U.S.C. § 254. We grant the petition for review in part, deny it in part, affirm in part, reverse in part, and remand in part. 2 I. Background. 3 A. The 1996 Act and the Universal Service Order. 4 Beginning with the passage of the Communications Act of 1934 (the "1934 Act"), Congress has made universal service a basic goal of telecommunications regulation. As Section 1 of the 1934 Act stated, the FCC was created 5 [f]or the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequatefacilities at reasonable charges . . . . 6 47 U.S.C. § 151 (as amended). 7 Armed with this statutory mandate, the FCC historically has focused on increasing the availability of reasonably priced, basic telephone service via the landline telecommunications network.2 Rather than relying on market forces alone, the agency has used a combination of implicit and explicit subsidies to achieve its goal of greater telephone subscribership. Explicit subsidies provide carriers or individuals with specific grants that can be used to pay for or reduce the charges for telephone service. This form of subsidy includes using revenues from line charges on end-users to subsidize high-cost service directly and to support the Lifeline Assistance program for low-income subscribers. 8 Implicit subsidies are more complicated and involve the manipulation of rates for some customers to subsidize more affordable rates for others. For example, the regulators may require the carrier to charge "above-cost" rates to low-cost, profitable urban customers to offer the "below-cost" rates to expensive, unprofitable rural customers. 9 For obvious reasons, this system of implicit subsidies can work well only under regulated conditions. In a competitive environment, a carrier that tries to subsidize below-cost rates to rural customers with above-cost rates to urban customers is vulnerable to a competitor that offers at-cost rates to urban customers. Because opening local telephone markets to competition is a principal objective of the Act, Congress recognized that the universal service system of implicit subsidies would have to be re-examined. 10 To attain the goal of local competition while preserving universal service, Congress directed the FCC to replace the patchwork of explicit and implicit subsidies with "specific, predictable and sufficient Federal and State mechanisms to preserve and advance universal service." 47 U.S.C. § 254(b)(5). Congress also specified new universal service support for schools, libraries, and rural health care providers. See 47 U.S.C. § 254(h). It then directed the FCC to define such a system and to establish a timetable for implementation within fifteen months of the passage of the Act. 11 The Federal-State Joint Board (the "Joint Board"), created by the Act to coordinate federal and state regulatory interests, issued two recommendations on how to implement the universal service provisions.3 The FCC met the statutory deadline when it issued the Order on May 8, 1997.4 Since that time, the agency has issued seven reconsideration orders (the last one on May 28, 1999) and has madetwo reports to Congress regarding the Order. 12 The FCC designated a set of core services eligible for universal service support, proposed a mechanism for supporting those services, and established a timetable for implementation. See Order ¶¶ 21-42. Pursuant to the Act, the agency developed rules for modifying the existing system of support for high-cost service areas and created new support programs for schools, libraries, and health care facilities. 13 1. High-cost Support. 14 The FCC's plans for changing the high-cost support system required it to resolve a number of complicated issues, including (1) what methodology to use for calculating high-cost support; (2) how to allocate costs between the states and the federal government; (3) which carriers should be required to contribute to the support system; and (4) when to implement the high-cost support program. The agency resolved the question of how to calculate the proper amount of high-cost support by accepting the Joint Board's second recommendation to identify areas where the forward-looking cost of service exceeds a cost-based benchmark and to provide extra support to any state that cannot maintain reasonable comparability.5 See Second Recommended Decision ¶ 19; Seventh Report and Order ¶ 61 n.157. 15 Most importantly, the FCC decided to use the "forward-looking" costs to calculate the relevant costs of a carrier serving a given geographical area. In other words, to encourage carriers to act efficiently, the agency would base its calculation on the costs an efficient carrier would incur (rather than the costs the incumbent carriers historically have incurred).6 16 The FCC developed rules for determining which carriers should be required to contribute to the interstate universal service support system and how their contributions should be calculated. It decided to require all telecommunications carriers and certain non-telecommunications carriers to contribute in proportion to their share of end-user telecommunications revenues. See Order ¶¶ 39-42. The agency determined that to reduce the burden on individual carriers' prices, the carriers' contribution base should be as broad as possible. See Order ¶ 783. Therefore, the agency required contributing carriers to include their international telecommunications revenues in their contribution base and rejected claims by certain carriers,7 which do not receive direct subsidies fromthe support program, seeking an exemption from making any contributions. See Order ¶ 805. 17 Finally, the FCC adopted a timetable for implementing its high-cost support plan. Because it has not yet developed an accurate assessment of forward-looking costs, it delayed implementation of its support program for non-rural carriers until January 1, 2000.8 Additionally, because the agency believes it will take even longer to develop accurate forward-looking cost models for rural carriers, it delayed the implementation of its new support plan for rural carriers to "no sooner than January 1, 2001." See Order ¶ 204. 18 During this delay in implementation, the FCC decided that carriers will continue to receive support at the levels generated by existing universal support programs. According to the agency, this gradual, phased-in plan for implementing its new high-cost support system meets the Act's requirement of a "specific timetable for completion." See 47 U.S.C. § 254(a)(2). 19 2. Schools and Libraries. 20 Pursuant to § 254(h), the FCC adopted rules implementing new programs for schools, libraries, and health care facilities, in particular by providing universal service support for internet access and internal connections in schools and libraries. See Order ¶ 436. The agency decided that any entity, including non-telecommunications carriers, that provides internet access or internal connections to schools and libraries will receive universal service support. See Order ¶ 594. 21 To fund the new § 254(h) programs, the FCC accepted the Joint Board's recommendation to assess the interstate and intrastate revenues of providers of interstate telecommunications service. See Order ¶ 808. Because many states do not already have similar support programs for schools and libraries, the agency justified its inclusion of intrastate revenues as necessary to ensure adequate funding for § 254(h) programs. 22 B. Challenges to the Order. 23 On September 5, 1997, petitioner Celpage Inc. filed a motion in this court to stay the Order. We denied that motion on October 16, 1997, and rejected a similar motion by various rural telephone companies on December 31, 1997. Their petitions, along with challenges to the Order by other petitioners, were consolidated in this court. 24 There are two sets of challenges to the Order. The first regards the FCC's plan for replacing the current mixture of explicit and implicit subsidies with an explicit universal service support system for high-cost areas. On both statutory and constitutional grounds, petitioners attack (1) the methodology for calculating support under the plan; (2) the allocation of funding responsibilities between the FCC and the states; and (3) the agency's restrictions on how carriers can recover universal service costs. 25 Other petitioners attack the FCC's high-cost support plan as an encroachment on state authority over intrastate telecommunications regulation because it restricts state eligibility requirements and imposes a "no disconnect" rule for low-income telephone subscribers. Petitioners also challenge, for lack of specificity and for failing to delay implementation of the plan for some rural carriers, the FCC's timetable for implementing the new universal service plan. Additionally, petitioners challenge the FCC's system for assessing contributions, arguing that it improperly includes CMRS providers and unfairly assesses carriers on the basis of their international and interstate revenues. 26 The second set of challenges regards the FCC's proposal for implementing § 254(h)programs supporting schools, libraries, and health care providers. Petitioners claim that the FCC impermissibly expanded the scope of § 254(h) support to include the provision of internet access and internal connections. Moreover, they attack the FCC's statutory authority to provide such support to non-telecommunications providers. 27 Additionally, petitioners charge that the agency encroached on state authority to implement state support programs for schools and libraries and failed to designate which telecommunications services will receive § 254(h) support. They also argue that the FCC exceeded its statutory authority by requiring subsidies for toll-free telephone calls to internet service providers by non-rural health care providers. Finally, they attack the FCC's § 254(h) contribution system because it assesses both the intrastate and interstate revenues of carriers.9 28 We affirm most of the FCC's decisions regarding its implementation of the high-cost support system, concluding, for the most part, that the Order violates neither the statutory requirements nor the Constitution. We remand for further consideration, however, as to the FCC's decision to assess contributions from carriers based on both international and interstate revenues. We also reverse (1) the requirement that ILEC's recover their contributions from access charges and (2) the blanket prohibition on additional state eligibility requirements for carriers receiving high-cost support. 29 On jurisdictional grounds, we reverse the rule prohibiting local telephone service providers from disconnecting low-income subscribers. We also conclude that the agency exceeded its jurisdictional authority when it assessed contributions for § 254(h) "schools and libraries" programs based on the combined intrastate and interstate revenues of interstate telecommunications providers and when it asserted its jurisdictional authority to do the same on behalf of high-cost support. 30 II. Standard of Review. 31 When deciding whether the FCC has the statutory authority to adopt the rules included in the Order, we review the agency's interpretation under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), by first deciding whether "Congress has directly spoken to the precise question at issue," id. at 842. If so, we "give effect to the unambiguously expressed intent of Congress." Id. at 842-43. In this situation, we reverse an agency's interpretation if it does not conform to the plain meaning of the statute. This level of review is often called "Chevron step-one" review. 32 Where the statute is silent or ambiguous, however, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. We may reverse the agency's construction of an ambiguous or silent provision only if we find it "arbitrary, capricious or manifestly contrary to the statute." Id. at 844. That is to say, we will sustain an agency interpretation of an ambiguous statute if the interpretation "is based on a permissible construction of the statute."Id. at 843. We refer to this more deferential level of review as "Chevron step-two" review. 33 The Administrative Procedure Act ("APA") also authorizes us to reverse an agency's action if it acted arbitrarily or capriciously in adopting its interpretation by failing to give a reasonable explanation for how it reached its decision. See 5 U.S.C. § 706 (2)(A) (1994); see also Harris v. United States, 19 F.3d 1090 (5th Cir. 1994). "Arbitrary and capricious" review under the APA differs from Chevron step-two review, because it focuses on the reasonability of the agency's decision-making processes rather than on the reasonability of its interpretation.10 34 Finally, we do not give the FCC's actions the usual deference when reviewing a potential violation of a constitutional right. "The intent of Congress in 5 U.S.C. § 706(2)(B) was that courts should make an independent assessment of a citizen's claim of constitutional right when reviewing agency decision-making." Porter v. Califano, 592 F.2d 770, 780 (5th Cir. 1979). 35 III. Analysis. 36 A. High-cost Support. 37 1. Methodology for Calculating Support for High-cost Areas. 38 a. Forward-looking Cost-of-Service Methodology. 39 GTE and Southwestern Bell (collectively "GTE") and the FCC engage in a fairly complex economic debate over the merits of calculating costs using the forward-looking cost models based on the "least cost, most efficient" carrier.11 Becauseincumbent local exchange carriers ("ILEC's") such as GTE will receive their subsidies, under the new system, based on the difference between the costs of providing service to a high-cost region and the revenue that could be derived from that service, GTE fears that using the costs of a hypothetical most-efficient carrier will significantly reduce the amount of universal service support it receives. 40 i. Statutory Interpretation. 41 The question, of course, is not whether it is good policy for the FCC to use such cost models,12 but whether the decision to adopt this methodology conforms to the plain language of the statute. If the language is ambiguous, we must then ask whether the use of forward-looking cost models is reasonable given the terms of the statute and the deference the FCC must be afforded under Chevron. Additionally, we must consider whether the agency's actions in reaching its decision are "arbitrary and capricious" under the APA. See 5 U.S.C. § 706(2)(A). 42 We conclude that the plain language is ambiguous as to whether the FCC's cost models are permitted. We then decide that under Chevron step-two, the FCC's forward-looking cost models are authorized under their reasonable interpretations of the statutory language. Finally, we do not conclude that the FCC acted in a "arbitrary and capricious" manner in reaching its decision to adopt forward-looking cost models. 43 GTE argues that the methodology violates the "equitable and nondiscriminatory" language in § 254(b)(4). We disagree with GTE's claim that the plain language of § 254(b)(4) prohibits the FCC from adopting its methodology. 44 The section of the statute that GTE relies on represents one of seven principles identified by the statute as the basis for the agency's universal service policies. Rather than setting up specific conditions or requirements, § 254(b) reflects a Congressional intent to delegate these difficult policy choices to agency discretion: "The Joint Board and the Commission shall base policies for the preservation and advancement of universal service on the following principles . . . ." (Emphasis added.) 47 U.S.C. § 254(b). 45 Moreover, the FCC has offered reasonable explanations for how its use of the forward-looking cost models cannot be characterized as inequitable and discriminatory. For instance, the FCC points out that all carriers, including interexchange carriers ("IXC's") such as AT&T and MCI, are subject to the same cost methodology and must move toward the same efficient cost level to maximize the benefits of universal service support. 46 The term "sufficient" appears in § 254(e), and the plain language of § 254(e) makes sufficiency of universal service support a direct statutory command rather than a statement of one of several principles. Still, we do not find that the use of the single word "sufficient," even in the language of command, demonstrates Congress's unambiguous intent regarding the forward-looking cost models. We therefore review under Chevron step-two and conclude that the agency has offered reasonable justifications for its adoption of the "most efficient" methodology. 47 The FCC points to cases in which agencies have adopted similar methodologies to encourage competition.13 It also argues that nothing in the statute defines "sufficient" to mean that universal service support must equal the actual costs incurred by ILEC's. These reasons suffice to survive the reasonableness requirement of Chevron step-two. 48 To be sure, the FCC's reason for adopting this methodology is not just to preserve universal service. Rather, it is also trying to encourage local competition by setting the cost models at the "most efficient" level so that carriers will have the incentive to improve operations. As long as it can reasonably argue that the methodology will provide sufficient support for universal service, however, it is free, under the deference we afford it under Chevron step-two, to adopt a methodology that serves its other goal of encouraging local competition. 49 ii. "Arbitrary and Capricious." 50 Arguing that the FCC has departed from its own stated methodology, GTE charges the agency with "arbitrary and capricious" actions under the APA. See 5 U.S.C. § 706(2)(A). The APA's "arbitrary and capricious" standard of review is narrow and requires only a finding that the agency "articulate[d] a rational relationship between the facts found and the choice made." Harris v. United States, 19 F.3d 1090, 1096 (5th Cir. 1994). 51 GTE points out that while the agency has wedded itself to the "most efficient" carrier cost methodology, it used current depreciation schedules to develop its models for projecting forward-looking costs. These schedules are not based on the actual costs of the current regulated system, but, GTE contends, have been artificially deflated by state regulators so that local carriers recover less than they would in a real, competitive market. Using these artificially-deflated schedules in the cost models disadvantages the ILEC's, because they will not be able to recover their capital costs as they would if free from regulation. 52 Actually, the FCC has departed from its general "most efficient" methodology by making a number of adjustments to its cost model. For instance, instead of assuming the "most efficient" wire center locations in its cost models, the agency simply made calculations based on whatever wire centers already exist. See Order ¶ 251(1). This allowance actually benefits the ILEC's. 53 While GTE argues that the FCC's failure to adhere tightly to its "most efficient"methodology fails the "arbitrary and capricious" test, that test, properly understood, is far less onerous. If the FCC's departures from its methodology "articulate a rational relationship," we will not apply the "arbitrary and capricious" remedy. 54 The FCC seeks to mitigate the effect of the "most efficient" methodology by accounting for wire centers that already exist. Additionally, and contrary to GTE's assertions, the agency is prescribing a range within which the depreciation schedules must fall, rather than simply adopting the schedules that already exist. For the time being, the FCC will rely on the actual depreciation schedules, because it does not see a prospect of significant competition in the near future in the high-cost markets. See Order ¶ 250(5). Moreover, the agency has committed itself to re-prescribe the range for these schedules every three years. See id. ¶ 250(5) n.662. These reasons establish enough of a "rational relationship" with facts presented for the forward-looking cost methodology to pass the APA's arbitrary and capricious test.14 55 b. Methodology for Calculating the Revenue Benchmark. 56 GTE challenged the inclusion of revenues from "discretionary" services in the revenue benchmark used to compare costs and revenues for the purposes of universal service support. The Joint Board, however, recently proposed eliminating the entire revenue benchmark in favor of a single national cost benchmark. See Second Recommended Decision ¶¶ 41-50. The FCC accepted this recommendation. See Seventh Report and Order ¶ 61 ("[W]e reconsider and reject the determination in the First Report and Order that federal support for rate comparability should be determined using a revenue-based benchmark.").15 This decision moots GTE's challenge to the inclusion of discretionary revenues, because no revenues will be used in the calculation of the benchmark.16 57 A case becomes moot if (1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocablyeradicated the effects of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).17 The FCC's new approach eradicates any possible effect of discretionary revenues on the levels of the petitioners' universal service support.18 We therefore dismiss, as moot, GTE's challenge to the use of discretionary revenues in the high-cost support benchmark. 58 GTE also challenged the FCC's use of a national benchmark for purposes of revenue calculations. Because GTE's challenge focused on the problems of a national revenue benchmark, the FCC's elimination of the revenue benchmark also moots its challenge to the national benchmark. 59 GTE's basic attack on the national revenue benchmark is that ILEC's operating in states with below-average revenues will be systematically undercompensated by a universal service support system based on a national revenue benchmark. But none of these arguments necessarily applies to a cost-based national benchmark.19 Indeed, the FCC adopted the cost-based national benchmark because it agreed that "revenues may not accurately reflect the level of need for support to enable reasonably comparable rates because states have varying rate-setting methods and goals." Seventh Report and Order ¶ 62. 60 Because the subject matter of GTE's appeal--a national revenue benchmark--no longer has any legal force, "[a]ny further judicial pronouncements . . . would be purely advisory." See Center for Science in the Public Interest, 727 F.2d at 1164. "We cannot assume jurisdiction to decide a case on the ground that it is the same case as one presented to us, when it is admitted that it is not and when it presents different issues." Id. at 1166 n.6 (emphasis added). Therefore, we also dismiss, as moot, thechallenges to the FCC's national revenue benchmark.20 61 c. Limiting the Federal Mechanism to Twenty-five Percent of Universal Service Costs. 62 The third step in the FCC's methodology for calculating support to high-cost, non-rural areas allocates 25% of the funding responsibility to the agency, leaving 75% to be provided by the states. In other words, only 25% of the overall funds for the explicit universal support program for high-cost areas will be provided from the funds collected from interstate telephone calls; the rest must be provided by the states, usually through charges on intrastate service. Certain states,21 GTE, and Kansas and Vermont22 challenged this allocation on statutory grounds. Specifically, they question the 25% rule for failing to provide "sufficient" support under § 254(e). Kansas and Vermont also challenged the FCC's 25% allocation decision for lack of notice and for failing to ensure reasonable comparability between rural and urban rates. 63 As in the case of arguments against the revenue benchmark, we do not consider these challenges, because the FCC has accepted the Joint Board's recommendation to scrap the 25%/75% rule.23 The Seventh Report and Order proposes a new methodology that places "no artificial limits on the amount of federal support that is available" when a state cannot by itself maintain reasonable comparability. Seventh Report and Order ¶ 34. This new framework is "a different regulation, containing on its face reasoning not previously articulated by the agency as its policy." Center for Science in the Pub. Interest, 727 F.2d at 1166. Therefore, we dismiss the challenges by all of the petitioners as moot.24 64 d. Properly Consulting with the Joint Board Before Amending Jurisdictional Separations Rules. 65 GTE raises an administrative procedural objection to the FCC's adoption of new jurisdictional separations rules25 that propose to end existing high-cost fund support for non-rural carriers on January 1, 1999.26 Instead of arguing that the new rule is arbitrary and capricious, GTE claims that the agency failed properly to refer the matter to the Joint Board, in violation of 47 U.S.C. § 410(c), which states that "[t]he Commission shall refer any proceeding regarding the jurisdictional separation of common carrier property and expenses between interstate and intrastate operations . . . to a Federal-State Joint Board." 66 The FCC responds that it did make a general referral to the Joint Board in March 1996 and that the Joint Board subsequently recommended that the agency replace the existing support mechanisms for non-rural carriers with a new universal service system. The plan to replace the existing support mechanism, the FCC argues, requires a change in the method of jurisdictional separation, and by recommending the plan, the Joint Board had already considered the jurisdictional effects.27 67 GTE and the FCC disagree on the level of specificity needed to fulfill the Joint Board consultation requirement of § 410(c). GTE argues that simply identifying the broad subject of universal service reform did not raise the issue of altering the system that is used to shift costs in many high-cost areas to the interstate jurisdiction. In particular, GTE contends that the Joint Board failed to consider the amounts of the fund allocation between the interstate and intrastate jurisdictions when it considered the plan to implement a new support mechanism. 68 Although the FCC does not have to raise every possible detail in its referral to the Joint Board, it must show that the Joint Board was aware of the effects on the jurisdictional separations rules of replacing the existing high-cost support system. The plain language of the statute shows that any shift in the allocation of jurisdictional responsibility lies at the heart of § 410(c)'s consultation requirement. 69 The Joint Board was aware that replacing the existing high-cost support system will affect the jurisdictional separations rules. This is shown by the fact, for instance, that the Joint Board made a detailed discussion of the current jurisdictional separations rules, acknowledging that they "currently assign 25 percent of each LEC's loop costs to the interstate jurisdiction." See First Recommended Decision ¶ 188. 70 In discussing the comments submitted by affected parties, the Joint Board recognized that the jurisdictional separations rules are part of the old regime of "embedded" or "historical" costs. See id. ¶ 207. Thus, the Joint Board does seem to recognize that the jurisdictional separations rules are part of the old "embedded cost"system and were developed in the context of allocating the actual costs of developing the local and long-distance networks. By recommending replacing the historical cost system with a forward-looking "most efficient" cost model, the Joint Board must have considered that the jurisdictional separations rules no longer would apply in the same way. Although no detailed discussion appears in the First Recommended Decision, the Joint Board's recognition that the jurisdictional separations rules would be affected by adopting a new cost model fulfills § 410(c)'s consultation requirement.28 71 2. Eligibility Requirements for Carriers Seeking Universal Service Support. 72 The states and intervenor Southwestern Bell ("SBC") challenge the FCC's reading of the Act's provisions governing eligibility requirements for carriers seeking universal service support. In general, they question the agency's interpretation of § 214(e) as too narrow and restrictive of the ability of state commissions to set their own criteria and exercise their own discretion over a carrier's eligibility. 73 a. Limiting the Criteria That State Commissions May Consider When Assessing a Carrier's Eligibility. 74 Section 214(e) governs the designation of carriers eligible to receive federal universal service support. Section 214(e)(1)(A) and (B) set out the eligibility requirements, and § 214(e)(2)29 governs the designation of eligible carriers by state commissions. 75 In the Order, the FCC interpreted § 214(e)(2) in this way. With limited exceptions for rural areas, a state commission has no discretion when assessing a carrier's eligibility for federal support. If a carrier satisfies the terms of § 214(e)(1), a state commission must designate it as eligible. Thus, the FCC ruled that a state commission may not impose additional eligibility requirements on a carrier seeking universal service support in non-rural service areas. See Order ¶ 135. The agency does permit the states to impose service quality obligations on local carriers if those obligations are unrelated to a carrier's eligibility to receive federal universal service support. According to the FCC, this interpretation "gives effect to the unambiguously expressed intent of Congress." See Chevron, 467 U.S. at 842-43. 76 The states and SBC offer two lines of attack. First, they argue that the plain language of § 214(e)(2) does not support the FCC's blanket prohibition on additional state eligibility requirements. Second, they say that the FCC exceeded its jurisdictional authority, in violation of 47 U.S.C. § 152(b), by purporting to interfere with the states' regulation of intrastate service. Because we conclude that the agencyerred in prohibiting the states from imposing additional eligibility requirements, we do not reach the states' jurisdictional challenges. 77 On the plain language front, the states argue that § 214(e)(2) does not unambiguously prohibit them from regulating carriers receiving federal universal support. Specifically, they contend that Congress did not mean to prohibit the states from imposing service quality standards on eligible carriers. According to the states, the language on which the FCC relies--"[a] State Commission shall upon its own motion or upon request designate a common carrier that meets the requirements of paragraph (1) as an eligible telecommunications carrier"--does not expressly circumscribe state authority to add additional eligibility requirements. 78 The agency's best hope for express authority for its action rests on the statute's use of the word "shall" in § 214(e)(2). Generally speaking, courts have read "shall" as a more direct statutory command than words such as "should" and "may."30 Though we agree that the use of the word "shall" indicates a congressional command, nothing in the statute indicates that this command prohibits states from imposing their own eligibility requirements. Instead, we read § 214(e)(2) as addressing how many carriers a state may designate for a given service area, and not how much discretion a state commission retains to impose eligibility standards. 79 The first sentence requires state commissions to designate at least one common carrier as eligible, but that carrier must still meet the eligibility requirements in § 214(e)(1). The second sentence then confers discretion on the states to designate more than one carrier in rural areas, while requiring them to designate eligible carriers in non-rural areas consistent with the "public interest" requirement. Nothing in the statute, under this reading of the plain language, speaks at all to whether the FCC may prevent state commissions from imposing additional criteria on eligible carriers.31 80 Thus, the FCC erred in prohibiting the states from imposing additional eligibility requirements on carriers otherwise eligible to receive federal universal service support. The plain language of the statute speaks to the question of how many carriers a state commission may designate, but nothing in the subsection prohibits the states from imposing their own eligibility requirements.32 This reading makes sense in light of the states' historical role in ensuring service quality standards for local service. Therefore, we reverse that portion of the Order prohibiting the states from imposing any additional requirements when designating carriers as eligible for federal universal service support. 81 b. The Terms of Section 214(e)(5) Governing the Definition of Service Areas. 82 In their initial brief, the states argued that the FCC had impermissibly encroached on their exclusive authority todesignate service areas for universal service support. The FCC, however, pointed out that ¶ 185 of the Order had only encouraged the states to make certain decisions33 when designating service areas. The agency explicitly denies that the paragraph requires the states to follow its "encouragements." Thus, it appears that the states misinterpreted the FCC's intentions in ¶ 185 and that there is no issue left for us to address. 83 The states, however, continue to contest one aspect of the Order regarding the definition of service areas. The FCC maintains that it may establish a different definition of service areas for rural carriers, with the agreement of the states, without having to submit such a new definition first to the Joint Board. The states argue that the plain language of § 214(e)(5) allows the agency to act only "after taking into account recommendations of [the Joint Board] . . . ." 84 The FCC has two procedural responses and one substantive defense. Because we agree with the FCC that the states have no standing, we do not reach the FCC's other defenses. 85 The agency argues that the states have no standing to challenge its ruling, because the states have failed to show any harm.34 After all, as the FCC points out, it must still garner the approval of each respective state before a rural service area can be redefined. The states argue that they are harmed because the state members of the Joint Board are denied a chance to participate in the decisionmaking process, so the states are less able to coordinate with each other. They further contend that bypassing the Joint Board denied the states any meaningful participation in revising service area definitions for rural territories. 86 This claim is weak, because the states' independent ability to veto particular service areas seems to provide them with a substantial amount of "meaningful participation." This is unlike the situation in the cases the states rely on, in that the states here are not challenging a federal preemption order that threatens their sovereign authority. See California v. FCC, 75 F.3d 1350, 1361 (9th Cir. 1996). Therefore, the states lack standing to challenge this portion of the Order. 87 c. Declining To Require Eligible Carriers To Offer Supported Services on an Unbundled Basis. 88 GTE argues that the FCC's failure to require carriers to "unbundle" their offerings when receiving universal service support violates the congressional intent expressed in § 214(e)(1) under Chevron step-one. "Bundling" refers to a carrier's practice of offering different services together as one package. For instance, a carrier might offer basic phone service as part of a package that includes call-waiting and voicemail. 89 GTE fears that a new carrier could "cherry pick" high-profit customers by offering only bundled local telephone service packages. Because the intended beneficiaries of universal service are, by definition, less able to afford even basic service, offering expensive bundled packages will allow new carriers to steal wealthier, low-cost customers while leaving ILEC's such as GTE to provide service to everyone else. GTE reasons that Congress, by requiring carriers receiving federal universal service support to advertise the availability of itssupported services, intended to require new carriers to participate in universal service--an intent that would be thwarted by Allowing the new carriers to offer bundled services. 90 The FCC responds that the plain language of the statute is satisfied as long as a carrier offers "services that are supported by Federal universal service mechanisms." 47 U.S.C. 214(e)(1)(A). Except for the advertising requirement, the statute makes no mention of "bundling" or other eligibility criteria. In fact, the FCC argues that because of the exclusive grant of eligibility authority conferred on the states by § 214(e)(2), it cannot impose additional eligibility criteria. Because the statute is silent on the question of bundling, and because the statute seems to prohibit further eligibility criteria, the agency asks us to give deference to its interpretation of § 214(e) under Chevron step-two. 91 We agree that the statute's plain language does not reveal Congress's unambiguous intent. It is not evident, however, that the FCC's interpretation of the statute meets even the minimum level of reasonability required in step-two review. 92 Section 214(e)(1) plainly requires carriers receiving universal service support to offer such supported services to as many customers as possible. Thus, an eligible carrier must offer such services "throughout the service area" and "advertise the availability of such services." This requirement makes sense in light of the new universal service program's goal of maintaining affordable service in a competitive local market. Allowing bundling, however, would completely undermine the goal of the first two requirements, because a carrier could qualify for universal service support by simply offering and then advertising expensive, bundled services to low-income customers who cannot afford it. 93 The FCC suggests that GTE's problems stem not from bundling but from state-imposed "carrier of last resort" ("COLR") requirements, which prohibit ILEC's such as GTE from disconnecting low-profit consumers and leave ILEC's vulnerable to outside competition. But the elimination of COLR requirements would only further undermine the goal of making basic services available to low income consumers and those in "rural, insular, and high cost areas." See 47 U.S.C. § 254(b)(3). This again would violate the express intent of the universal service program. Without a better explanation for its unreasonable interpretation, we would be inclined to find the FCC's implementation "arbitrary and capricious and manifestly contrary to the statute." See Chevron, 467 U.S. at 844. 94 Fortunately, the agency also has explained that "only an eligible carrier that succeeds in attracting and/or maintaining a customer base to whom it provides universal service will receive universal service support." Order ¶ 138. Therefore, it reasons that if offering only bundled services would price low-income customers out of the market, the carrier offering bundled services would eventually lose universal service support. Thus, the FCC can avoid the problem of providing universal service support to carriers that do not serve high-cost customers for which the support is intended. This explanation supports the FCC's claim that its decision to allow bundling is reasonable under Chevron step-two review. 95 Though the decision is a close one, we conclude that the FCC's refusal to require eligible carriers to provide unbundled services is neither "arbitrary, capricious," nor "manifestly contrary to the statute." See Chevron, 467 U.S. at 844. Because the agency will prevent companies from using bundling to receive federal support while avoiding high-cost customers, we do not find its interpretation "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs.' Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S.29, 43 (1983). 96 3. Authority To Prohibit Carriers from Disconnecting Local Service to Low-income Consumers Who Fail To Pay Toll Charges. 97 Bell Atlantic and the states challenge the FCC's adoption of a regulation35 prohibiting carriers receiving universal service support from disconnecting Lifeline services36 from low-income consumers who have failed to pay toll charges. See Order ¶ 390. The petitioners charge that the "no disconnect" rule exceeds the agency's jurisdictional authority under § 2(b) of the 1934 Act,37 which prohibits FCC regulation of intrastate telecommunications service. Because the plain language of the statute expresses Congress's unambiguous intent, we review the agency's interpretation under Chevron step-one. 98 The agency has three responses. First, it argues that § 2(b) does not apply where Congress has given the FCC an "unambiguous or straightforward" grant of authority. See Louisiana Pub. Serv. Comm'n, 476 U.S. at 377. The agency argues that Congress granted such express authority in § 254(b)(3), which directs the FCC to base its policies on the principle that "low-income consumers and those in rural, insular, and high cost areas, should have access to telecommunications and information services . . . ." 99 As we have discussed, § 254(b) identifies seven principles the FCC should consider in developing its policies; it hardly constitutes a series of specific statutory commands. Indeed, we have avoided relying on the aspirational language in § 254(b) to bind the FCC to adopt certain cost methodologies for calculating universal service support.38 100 Just as we declined to read § 254(b) as an inexorable statutory command against the FCC, we decline to read it as a grant of plenary power overriding other portions of the Act. The agency has no "unambiguous or straightforward" grant of authority to override the limits set by § 2(b), and, accordingly, it has no jurisdiction to adopt the "no disconnect" rule on the basis of the vague, general language of § 254(b)(3).39 101 Second, the FCC contends that the petitioners' jurisdictional challenge is inapposite because the "no disconnect" rule does not purport to regulate intrastate service, but merely prevents the disconnection of interstate service (and, as a consequence, of intrastate service) for failure to pay toll charges.40 As Bell Atlanticrightly responds, however, the "no disconnect" rule is a "regulation," because it dictates the circumstances under which local service must be maintained. Therefore, the FCC, by issuing the rule, has acted "with respect to" and "in connection with" interstate service within the meaning of § 2(b). 102 The FCC points out that even if the "no disconnect" rule is a "regulation" within the meaning of § 2(b), courts have sustained agency jurisdiction over similar rules under the "impossibility" exception. In North Carolina Utils. Comm'n v. FCC, 552 F.2d 1036 (4th Cir. 1977), the court upheld FCC regulations permitting local subscribers to connect their telephones to the local loop to make interstate calls. North Carolina previously had required subscribers to use leased telephones and argued that § 2(b) prevented FCC intervention because the vast majority of these calls were intrastate. The court rejected this argument, holding that "the FCC has jurisdiction to prescribe the conditions under which terminal equipment may be interconnected with the interstate telephone line network." Id. at 1048. 103 Essentially, the FCC asks us to find that the "no disconnect" rule, aimed at regulating interstate service, is impossible to separate from intrastate service. In similar cases, the District of Columbia Circuit has permitted the FCC to intervene in relatively localized service issues41 and has developed a useful framework for analyzing what the petitioners refer to as the "impossibility" exception to § 2(b). See Public Serv. Comm'n v. FCC ("Maryland PSC"), 909 F.2d 1510, 1515 (D.C. Cir. 1990). 104 To permit the FCC to preempt state regulation of whether to cut off low-income subscribers, that circuit requires the agency to show that "(1) the matter to be regulated has both interstate and intrastate aspects; (2) FCC preemption is necessary to protect a valid federal regulatory objective; and (3) state regulation would negate the exercise by the FCC of its own lawful authority because regulation of the interstate aspects of the matter cannot be unbundled from regulation of intrastate aspects." Maryland PSC, 909 F.2d at 1515 (internal quotations and citations omitted). This framework creates a properly narrow exception to § 2(b) that allows the FCC to preempt state regulation only when it has shown it cannot carry out its authorized federal objectives without encroaching on state autonomy. 105 Applying this framework to the "no disconnect" rule, we agree with Bell Atlantic that the FCC has failed to show why allowing the states to control disconnections from local service would "negate the exercise of the FCC's lawful authority . . . ." As Bell Atlantic points out, the agency offered only a brief explanation of what lawfully authorized federal objectives are being served by the "no disconnect" rule and why it is necessary to preempt local authority to achieve these objectives. 106 In the Order, the FCC simply states that the "no disconnect" rule advances its goal of increasing subscribership and that it will improve the competitiveness of the market for billing and collection of toll charges. See Order ¶¶ 390-391. But the agency has not adequately explained, in either its brief or its Order, why these goals would be "negated" by allowing the states to control disconnection of local subscribers. In contrast to what occurred in Maryland PSC, where the court allowed the FCC to assert jurisdiction to prevent ILEC's from shifting local costs to interstate consumers, the FCC has offered no similar explanation of how protecting interstate service requires imposition of a "no disconnect" rule. Therefore, we declineto allow the agency to assert jurisdiction over the disconnection of local service based on the impossibility exception. 107 Finally, the FCC argues that in the wake of Iowa Utilities, it has jurisdiction over all areas, including intrastate matters, to which the Act applies. In Iowa Utilities, the Court rejected jurisdictional challenges to the portions of the FCC's Local Competition Order implementing §§ 251 and 252 of the Act, which govern the interconnection of new local service carriers with the ILEC's and establish procedures for negotiating, arbitrating, and approving any interconnection agreements. As in the instant case, petitioners challenged the FCC's jurisdiction to implement the Act, arguing that much of the authority to enforce the provisions (§§ 251 and 252) remain with the state commissions by virtue of § 2(b). Specifically, they contended that the Act gives the FCC jurisdiction over intrastate matters only when the statute explicitly applies to intrastate services and specifically confers agency jurisdiction over intrastate services. 108 The Court brushed aside these attempts to raise the § 2(b) jurisdictional fence and squarely held that "§ 201(b)42 explicitly gives the FCC jurisdiction to make rules governing matters to which the 1996 Act applies." Iowa Utilities, 119 S. Ct. at 730. Though § 2(b)'s language stating that "nothing in this Act shall be construed to apply or to give the Commission jurisdiction" implies that FCC jurisdiction does not always follow where the Act applies, the Court held that "the term 'apply' limits the substantive reach of the statute . . . and the phrase 'or Commission jurisdiction' limits . . . the FCC's ancillary jurisdiction." Id. at 731. Relying on this holding, the FCC argues that because § 254 applies to intrastate as well as interstate matters, § 201(b) confers the necessary jurisdiction to implement the "no disconnect" rule. 109 Though the Court's broad language seems to support the FCC's position, Bell Atlantic finds comfort in the Court's preservation of Louisiana PSC. In reconciling its holding with Louisiana PSC, the Court held that the FCC must show that the meaning of a statutory provision applies to intrastate matters in an "unambiguous and straightforward" manner as "to override the command of § 2(b)." Iowa Utilities, 119 S. Ct. at 731 (quoting Louisiana PSC, 476 U.S. at 377). If the agency fails in this initial task, it cannot use its normally broad regulatory authority to assert what is now only ancillary jurisdiction because of the still-intact jurisdictional fence created by § 2(b). See id. Therefore, after Iowa Utilities, § 2(b) still serves as (1) a rule of statutory construction43 requiring the FCC to find unambiguous statutory authority applying to intrastate matters and (2) a jurisdictional barrier restricting the agency from using its plenary authority to assert ancillary jurisdiction by "taking intrastate action solely because it further[s] an interstate goal." See Iowa Utilities, 119 S. Ct. at 731 (citing Louisiana PSC, 476 U.S. at 374). 110 The question is whether § 254 does indeed "apply" to intrastate matters in a sufficiently "unambiguous" manner. Without such a finding, Iowa Utilities flatly holds that the FCC cannot use its plenary authority to assert ancillary jurisdiction. 111 Unfortunately, Iowa Utilities provides little guidance for resolving the question whether § 254 applies to intrastate services. For the Supreme Court, "the question . . . is not whether the Federal Governmenthas taken the regulation of local telecommunications competition away from the States. With regard to the matters addressed by the 1996 Act, it unquestionably has." Iowa Utilities, 119 S. Ct. at 730 n.6. The Court did not further explain why it felt §§ 251 and 252 "unquestionably" applied to intrastate matters. 112 The FCC bases its contention that § 254 plainly applies to intrastate as well as interstate matters on § 254(b)(3),(c), and (j). According to the agency, § 254(b)(3) applies to intrastate service by stating that "low income consumers . . . should have access to telecommunications and information services, including interexchange services and advanced telecommunications and information services." 113 The use of the word "including," the FCC argues, indicates that the object of § 254 is to provide access to more than just interexchange services. Furthermore, § 254(c) instructs the agency to consider, in the process of establishing what constitutes universal service, whether such services "have . . . been subscribed to by a substantial majority of residential customers." Finally, § 254(j) specifically preserves the Lifeline Assistance program, which has always provided subsidies for both intrastate and interstate services. 114 We have already discussed our reluctance to rely on the aspirational language of § 254(b).44 Moreover, the phrase "including interexchange carriers" cannot be said unambiguously to mean that § 254 applies to local services, and § 254(c)'s mention of a "majority of residential customers" is far from straightforward. Neither is there much guidance from § 254(j), which specifically protects the Lifeline Assistance program from being affected by any other part of § 254 but does not in any way clarify to what degree § 254 applies to intrastate universal service. 115 Instead, there is substantial support in the statute for a dual regulatory structure in the administration of the universal service program. Section 254(d) specifically instructs interstate carriers to contribute to the FCC's universal service mechanisms, while § 254(f) instructs intrastate carriers to contribute to the states' individual universal service mechanisms. This section contains the only discussion of intrastate universal service mechanisms and directs intrastate carriers to report to the states rather than to the FCC. 116 In light of Iowa Utilities and Louisiana PSC, therefore, we conclude that, "while it is, no doubt, possible to find some support in the broad language of the section for [the FCC's] position, we do not find the meaning of the section so unambiguous or straightforward as to override the command of § 152(b)." Louisiana PSC, 476 U.S. at 377. Unlike §§ 251 and 252, which were solely concerned with intrastate issues (i.e., interconnection of new entrants into the local telephone market), § 254 applies to both interstate and intrastate services. It does so, however, only to the extent that it gives exclusive authority over intrastate contributions to the state commissions. We find it incongruous to use this explicit limitation on FCC authority as the hook to provide it with jurisdiction. 117 Therefore, the FCC exceeded its jurisdiction when it imposed the "no disconnect" rule. Because there is no express grant of statutory authority, a proper showing of "impossibility," or a persuasive explanation of how § 254 applies to intrastate service, we reverse, for want of agency jurisdiction, those portions of the Order implementing the "no disconnect" rule. 118 4. Recovery of Universal Service Contributions. 119 a. Requiring Incumbents To Recover Contributions Through Access Charges. 120 GTE and the FCC again wrangle over the meaning of "explicit" in theirdispute regarding the rule requiring most ILEC's to recover their universal service contributions through access charges. GTE contends that the rule violates § 254(e)'s command that any support for universal service be "explicit," because recovering contributions through increased access charges is a form of implicit subsidy. 121 GTE argues that the rule unfairly disadvantages ILEC's because, unlike their potential new competitors, they cannot recover their universal service contributions through explicit charges on their end-users, but, instead, are required by the FCC to increase their access charges on long-distance service providers. Though they do not necessarily lose out in terms of amounts recovered, GTE fears that this recovery method will put them at a competitive disadvantage because, instead of than seeing the costs of universal service on his bill as an explicit surcharge, an ILEC consumer will pay for the costs of universal service through higher rates. 122 The FCC advances a different understanding of "explicit." "Regardless of how carriers recover their contributions, the FCC's universal service system 'satisfies the statutory requirement that support be explicit' by requiring each carrier to contribute a specific percentage of its end user revenues" (quoting Order ¶ 854). As long as carriers know exactly how much they are contributing to the support mechanisms, the subsidies are explicit. 123 The statute provides little guidance on whether "explicit" means "explicit to the consumer" (as urged by GTE) or "explicit to the carrier" (as urged by the FCC). The statute does state, however, that all universal service support should be "explicit." We read "explicit" to mean the opposite of "implicit." See § 254(e). 124 By forcing GTE to recover its universal service contributions from its access charges, the FCC's interpretation maintains an implicit subsidy for ILEC's such as GTE. In fact, requiring carriers to recover their contributions from access charges on interstate calls shifts the costs of intrastate universal service to the interstate jurisdiction. These are precisely the sorts of implicit subsidies currently used by the FCC in its DAM weighting program. See Order ¶ 212 (discussing rules that permit small LEC's to recover costs for intrastate services from interstate access charges). 125 We are convinced that the plain language of § 254(e) does not permit the FCC to maintain any implicit subsidies for universal service support. Therefore, we will not afford the FCC any Chevron step-two deference in light of this unambiguous Congressional intent. Because the agency continues to require implicit subsidies for ILEC's in violation of a plain, direct statutory command, we reverse its decision to require ILEC's to recover universal service contributions from their interstate access charges. 126 b. Requiring Interstate Carriers To Reduce Interstate Access Charges by the Amount of Federal High-cost Support They Receive Under the New Universal Service System. 127 The states contest an aspect of the Order's effect on interstate access charges, arguing that the requirement that carriers reduce their interstate access charges by the amount of direct federal high-cost support they receive will leave insufficient funds for intrastate universal service. The states make two unconvincing plain-language arguments. First, they point to § 254(b)(5)'s language about "specific, predictable and sufficient" mechanisms to "preserve and advance universal service." As we have observed, § 254(b) identifies a set of principles and does not lay out any specific commands for the FCC. Even § 254(e), which is framed as a direct, statutory command, is ambiguous as to what constitutes "sufficient" support. Therefore, we do not consider the language an expression of Congress's "unambiguous intent" allowing Chevron step-onereview, and we review its interpretation for reasonability under Chevron step-two. 128 The states argue that § 254(e) does not permit the application of federal universal service funds for the interstate jurisdiction. In essence, they seek to preserve state universal service support by reading the statute to require all high-cost support to remain intrastate. Though this might make compelling policy, nothing in the plain language of § 254(e)45 unequivocally establishes the states' right to all of the federal universal support funds. The statutory language is at best ambiguous as to Congress's intent, which, under Chevron step-two, leaves it to the FCC's reasonable interpretation. 129 The FCC has offered good reason to believe that its new explicit support through direct subsidies will replace the amounts lost through the reduction of access charges. See Report to Congress ¶ 230. To be sure, the states and intervenor NASUCA46 make a plausible argument that ILEC's will receive less under the new plan than they did through implicit subsidies. As we have determined, however, because the FCC has offered reasonable explanations of why it thinks the funds will still be "sufficient" to support high-cost areas, we defer to the agency's judgment of what is "sufficient." 130 Under the agency's new universal service plan, it is possible that the states will receive less support for intrastate universal service costs than they did under the old plan. While this may seem unfair as a matter of policy, the states have failed to show that the FCC's interpretation, which may possibly result in a reduction of their level of support, is "arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 844. 131 5. Contributions. 132 a. Requiring CMRS Carriers To Contribute to the Federal Universal Service Fund.47 133 Celpage Inc., a paging carrier, and intervenors representing a number of wireless telecommunications companies (referred to in general as commercial mobile radio service or "CMRS" providers), challenge the FCC's decision to subject them to the universal service support scheme. Celpage raises a number of constitutional and statutory challenges to the decision to require their contributions to the universal service fund. Specifically, Celpage attacks the agency's universal service contribution requirement as an unconstitutional tax, a violation of equal protection, and an uncompensated taking. Additionally, Celpage charges that the FCC's action violates § 254's plain language, is arbitrary and capricious, and does not meet the agency's own principle of competitive neutrality. 134 i. Constitutional Challenges. 135 (a). Unconstitutional Tax. 136 There are two ways in which the universal service contribution requirement for paging carriers could constitute an unconstitutional tax. First, the FCC's application of the universal service requirement to paging carriers such as Celpage might be an unconstitutional delegation of Congress's exclusive taxing power under the Taxing Clause.48 Alternatively, becausethe Act originated in the Senate,49 its requirement of universal service contributions from paging carriers might violate the Origination Clause's requirement that all "[b]ills for raising [r]evenue" originate in the House of Representatives"50 137 Despite their similarities, the Taxing Clause and Origination Clause challenges to the universal service contribution system represent separate lines of analysis.51 In its initial brief, however, Celpage raises only the Origination Clause challenge and does not raise a Taxing Clause claim until its reply brief. Therefore, we will not consider it,52 and we focus our efforts on Celpage's claim that the universal service contribution requirement, as applied to paging carriers, is a violation of the Origination Clause.53 138 Unfortunately for Celpage, its Origination Clause claim cannot survive United States v. Munoz-Flores, 495 U.S. 385, 398 (1990). There, the Court refused to find that a special assessment on certain federal criminals for a "crime victim's" fund is a tax, because "a statute that creates a particular governmental program and that raises revenue to support that program . . . is not a 'Bil[l] for raising Revenue' within the meaning of the Origination Clause." Id. 139 Celpage points out that the Congressional Budget Office has treated universal service fund contributions as federal revenues. But how the government classifies a program for accounting purposes does not resolve whether the funds are used for a specific program or for general revenues. Indeed, the Court in Munoz-Flores upheld the special assessment even though the excess money collected was deposited in the Treasury. Instead of looking at accounting designations, Munoz-Flores teaches us (1) to determine whether the funds are "part of a particular program to provide money for that program . . . ." and (2) to establish a connection between the payors and the beneficiaries. Munoz-Flores, 495 U.S. at 399, 400 n.7. 140 With one exception,54 universal service contributions are part of a particular programsupporting the expansion of, and increased access to, the public institutional telecommunications network. See Order ¶ 8. Each paging carrier directly benefits from a larger and larger network and, with that in mind, Congress designed the universal service scheme to exact payments from those companies benefiting from the provision of universal service.55 This design prevents the sums being used to support the universal service program from being classified as "revenue" within the meaning of the Origination Clause. 141 Paging carriers are uniquely dependent on a widespread telecommunications network for the maintenance and expansion of their business. See Order ¶ 82. As in Munoz-Flores, the challenged assessment targets a group "to which some part of the expenses" of sustaining the universal service program "can fairly be attributed." See Munoz-Flores, 495 U.S. at 400 n.7. Therefore, the application of the universal service contribution requirement to paging carriers does not transform the Act into a "bill for raising revenue" in violation of the Origination Clause.56 142 (b). Equal Protection. 143 To invalidate the FCC's actions on equal protection grounds, we must find that there is no "basis for the action that bears a debatably rational relationship to a conceivable legitimate governmental end." See Reid v. Rolling Fork Pub. Util. Dist., 979 F.2d 1084, 1087 (5th Cir. 1992). This is a tough burden, and Celpage does not come close. Celpage argues there can be no rational reason to include paging carriers in the universal service contribution system, because its contributions will support services that do not benefit Celpage. But the FCC has offered a reasonable proposition: Paging carriers such as Celpage benefit from a larger and more universal public network system, because it increases the number of potential locations for paging use. Even if this proposition is wrong, as Celpage suggests, it certainly meets the very low "debatably rational" test.57 144 (c). Taking. 145 Celpage advances an unconvincing takings claim. As an initial matter, a takings claim is not ripe until a claimant has unsuccessfully sought compensation from the state.58 Celpage does not allege that it has used any of the FCC's administrative procedures to petition for compensation or that such procedures are so inadequate as to make resort to these procedures futile. "To violate the [takings] clause, the state must not only take someone's property but also deny himcompensation." Samaad v. City of Dallas, 940 F.2d 925, 934 (5th Cir. 1991). 146 As we did in the case of GTE's challenge to the forward-looking cost methodology, we reject Celpage's takings claim as not ripe for judicial review.59 147 ii. Other Challenges. 148 Celpage attacks the FCC's interpretation of the "equitable and nondiscriminatory" language in § 254(b)(4). To be truly equitable, Celpage asserts, the agency should not treat all carriers in the same way for purposes of the universal service contribution system. Additionally, Celpage accuses the agency of failing to consider evidence of congressional intent, the record evidence, and other evidence of why paging carriers should not be included in the universal service contribution system. 149 The FCC has successfully dispensed with the plain language challenge. First, as we have explained, the "equitable and nondiscriminatory" language in § 254(b) acts as only one of seven guiding principles for FCC rulemaking. See supra part III.A.1.a.i. That subsection also instructs the agency that "all providers of telecommunications services should make an equitable and nondiscriminatory contribution" to universal service. (Emphasis added.) The language of § 254(b) directs us to give the FCC, in addition to the usual Chevron deference, discretion here to fashion a policy that is guided by both of these principles. 150 Celpage also challenges the FCC's interpretation as arbitrary and capricious under the APA because it is not supported by the record, and the agency has provided no reason why its decision should be made in the face of contrary record evidence. Specifically, Celpage says that the FCC failed to consider ex parte statements by legislators during the rulemaking proceedings urging it to exclude CMRS carriers from the universal service contribution system. Additionally, Celpage points to evidence in the record supporting its position and claims the FCC failed to consider it. 151 To achieve reversal under the APA's arbitrary and capricious standard, Celpage must show that the FCC failed to "articulate[] a rational relationship between the facts found and the choice made . . . ." Harris, 19 F.3d at 1096. A reviewing court tries "to determine whether the decision was based on a consideration of relevant factors . . . ." Louisiana v. Verity, 853 F.2d 322, 327 (5th Cir. 1988). 152 The record does not show that the FCC failed to consider the counter-arguments proffered by the CMRS providers and their allies. The agency did take note of letters from Congress on behalf of CMRS providers and from other legislators taking the opposite position. See Report to Congress ¶ 129 & n.301. Moreover, the letters on both sides have limited persuasiveness, because they are simply "post-passage remarks" that "'represent only the personal views of these legislators'" and "cannot serve to the change the legislative intent of Congress expressed before the Act's passage." Regional Reorganization Act Cases, 419 U.S. 102, 132 (1974) (quoting National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 639 n.34 (1967)). 153 The FCC offered a reasonable justification for including CMRS providers--this time relying on statutory language, the Joint Board recommendation, and the reasonable view that paging carriers do receive benefits from the universal service system. Accordingly, the agency's interpretation may not fairly be described as "arbitrary and capricious" under the APA.60 154 iii. Implementing Universal Service Assessment Requirements. 155 Celpage and the CMRS Providers challenge the FCC's rules and procedures for assessing contributions in the form of the Universal Service Worksheet. Specifically, Celpage attacks the worksheet for failing to distinguish between billed revenues and collected revenues for purposes of calculating universal service contributions. The CMRS Providers complain that the FCC's failure to provide guidance on how to adjust for the different nature of CMRS revenues makes the assessment system unconstitutionally vague. 156 We do not reach the vagueness argument, because the FCC persuasively responds that these challenges are not yet ripe for judicial review, for the reason that the agency has made a "tentative decision."61 Similar attacks on the Worksheet are currently pending before the agency as petitions for reconsideration.62 Moreover, recognizing the difficulties that the Worksheet raises, the FCC has already granted CMRS providers interim relief by allowing them to provide good-faith estimates of the figures required by the Worksheet. 157 Thus, the agency properly asks us to defer judicial review of its tentative decision until all administrative remedies are exhausted. In analogous situations, courts have postponed review "until relevant agency proceedings have been concluded [to] permit[] an administrative agency to develop a factual record, to apply its expertise to the record, and to avoid piecemeal appeals." See Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70, 79 (D.C. Cir. 1984) (internal citations omitted). 158 iv. States' Collection of Universal Service Assessment from CMRS Carriers. 159 Celpage and the CMRS Providers make a convincing challenge in contesting the FCC's decision to permit states to impose universal service contribution requirements on CMRS providers. They argue that the plain language of 47 U.S.C. § 332(c)(3)(A) specifically preempts states from doing so. Additionally, the CMRS Providers contend that § 254(f)'s language, relied on by the FCC, does not reach CMRS providers, because they are interstate carriers. 160 (a) Plain Language of § 332(c)(3)(A). 161 Celpage and the CMRS Providers argue that in § 332(c)(3)(A), "Congress has spoken to the precise question at issue," the ability of states to assess CMRS providers for universal service contributions. See Chevron, 467 U.S. at 842. Therefore, they argue that the FCC's interpretation deserves no deference. The plain language of § 332(c)(3)(A) does seem to apply to the issue at hand: 162 Notwithstanding sections 152(b) and 221(b) of this title, no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services. Nothing in this subparagraph shall exempt providers of commercial mobile services (where such services are a substitute for land line telephone exchange service for a substantial portion of the communications within such State) from requirements imposed by a State commission on all providers of telecommunications services necessary to ensure the universal availability of telecommunications service at affordable rates. 163 Before we discuss the differing interpretations of the statute, we must decide on the proper standard of review. The Tenth Circuit recently reviewed the FCC's interpretation of this section under the second step of Chevron, because the statute does not expressly state how we should read § 332(c)(3)(A) in relation to § 254(f). See Sprint, 149 F.3d at 1061. This standard of review is inappropriate, however, because it would allow the FCC to receive Chevron deference in almost every situation in which two sections of a statute must be read together. Indeed, the Act does contain a specific rule of statutory construction in § 601(c)(1), reprinted in 47 U.S.C. § 152 (Addendum A-1): "This Act and the amendments made by this Act shall not be construed to modify, impair or supersede Federal, State or local law unless expressly provided in such Act or Amendments." 164 Thus, we disagree with the Sprint court that the lack of a specific provision discussing the relation between §§ 332(c)(3)(A) and 254(f) automatically triggers Chevron deference. To the contrary, § 601(c)(1) gives us explicit instruction to read § 254(f) ("federal law") as not conflicting with § 332(c)(3)(A). Therefore, we conduct a Chevron step-one review and try to search out the statute's plain meaning. 165 Celpage and the CMRS Providers offer this "plain common sense" reading: Assessments for universal service by state commissions constitute regulation of rates or entry for purposes of the statute. The first sentence of this subsection prohibits the states from regulating rates or entry, and therefore prohibits universal service assessments, relating to CMRS providers. The second sentence explains that states may impose universal service requirements "where such services are a substitute for land line telephone exchange service . . . ." This plain language, Celpage and the CMRS Providers argue, expressly prohibits states from requiring universal service contributions from CMRS providers without first making a finding that the CMRS services in question are a substitute for landline telephone service. 166 The FCC points to plain language that requires it to make "[e]very . . . carrier that provides intrastate telecommunications service" contribute to the universal service programs as determined by the states. See 47 U.S.C. § 254(f). It then contends that the provisions of § 332(c)(3)(A) should not be read to trump the express commands of § 254(f). 167 The FCC finds support for its reading in the second clause of the first sentence of § 332(c)(3)(A). First, it concludes that requiring universal service contributions is neither rate nor entry regulation. SeeFourth Reconsideration Order ¶ 301. It then notes that this clause says that a state is not prohibited from regulating "other terms and conditions of commercial mobile services." Based on this clause alone, the FCC argues, the states retain the ability to compel universal service contributions as long as it does not constitute regulation of rates or entry. The second sentence simply clarifies that states can also regulate "rates and entry" if they make a finding that CMRS providers are substituting for landline service. 168 The Sprint court adopted this reading of § 332(c)(3)(A) and added another argument for the FCC's position. See Sprint, 149 F.3d at 1061. The second sentence's introductory language, "nothing in this subparagraph . . .," limits the reach of the landline substitution requirement to § 332(c)(3)(A). Therefore, the landline substitution requirement "simply is not relevant to § 254(f)." Id. 169 The petitioners argue that the FCC's reading violates the maxim of statutory construction that all language of a statute must be given effect.63 According to the petitioners, if we read the clause "other terms and conditions" to enable states to impose universal service requirements, then the entire second sentence would be redundant. There would be no reason to create a statutory requirement for when states may impose conditions for universal service if the "other terms and conditions" clause already allows states to impose universal service requirements on CMRS providers. 170 But the FCC persuasively responds that, under its reading, the second sentence clarifies the ability of states to regulate rates and entry in the name of universal service, while the "other terms and conditions" clause opens the door to all other universal service regulation. Thus, we do not conclude, as the petitioners imply we should, that requiring universal service contributions necessarily constitutes the regulation of rates and entry.64 Thus, under the FCC's reading, the states may generally regulate CMRS providers as they please, but they may regulate the rates and entry of CMRS providers only when they make a finding of substitutability. 171 We disagree with the CMRS Providers' further argument that even this reading, adopted in Cellular Telecomms. Indus. Ass'n v. FCC, 168 F.3d 1332 (D.C. Cir. 1999),65 would render the second sentence redundant because the third sentence of the subsection specifically lays out the procedures under which a state can petition for the right to regulate CMRS rates. The FCC's reading would still permit the following understanding of the statute: States (1) in general can never regulate rates and entry requirements for CMRS providers; (2) are free to regulate all other terms and conditions of CMRS service; (3) may regulate CMRS rates and entry requirements when they have made a substitutability finding in connection with universal service programs; and (4) may also regulate CMRS rates if they petition the FCC and meet certain statutory requirements, including either substitutability or unjust market rates. None of the provisions would have to be read as inoperative or redundant. 172 Additionally, this reading would avoid conflict with § 254(f), which requires that "every telecommunications carrier" contribute to the universal service fund. Thisrendition of § 332(c)(3)(A) allows the FCC to give effect to the plain language of § 254(f) while not violating § 601(c)'s directive to construe the Act in ways that do not "modify, impair, or supersede" federal law. 173 Therefore, the reading offered by Celpage and the CMRS Providers does not represent the unambiguous intent of Congress. The FCC's reading reflects Congress's unambiguous intent as expressed in the plain language of the statute and takes into account Congress's instruction that § 254 be construed in ways that do not conflict with other federal laws.66 Therefore, we reject Celpage and the CMRS providers' challenges to this section of the Order. 174 (b) CMRS Providers as Interstate Carriers. 175 Celpage and the CMRS Providers raise a weak challenge to state contribution requirements, contending that CMRS providers are "jurisdictionally interstate" and therefore exempt from state assessments. We agree with the FCC that the plain language of § 254(f) simply requires that "[e]very telecommunications carrier that provides intrastate telecommunications services" contribute to state mechanisms. As the agency found, a significant portion of the CMRS providers' services arise from providing intrastate telecommunications services.67 This undeniably significant involvement of CMRS providers in the provision of intrastate service is more than sufficient to place them within the ambit of § 254(f). 176 b. Determining That Interstate Carriers Must Contribute on the Basis of Their International Revenues. 177 COMSAT, a small interstate carrier specializing in providing international telephone service, challenges the FCC's decision to define the universal service base to include the international revenues of interstate carriers. COMSAT derives such a small portion of its revenues from interstate service that it would end up with universal payment obligations exceeding its interstate revenues. It argues that this bizarre outcome violates § 254(d)'s requirement that all universal service contributions be "equitable and nondiscriminatory" and the FCC's own principle of competitive neutrality. At the very least, COMSAT argues, this result shows that the FCC's action is arbitrary and capricious. 178 As a threshold matter, the FCC challenges the availability of judicial review, because COMSAT failed to petition the agency for reconsideration, as required by § 405 of the Act.68 COMSAT responds that the absence of a § 405 petition for rehearing is not a bar to judicial review if the petitioner was a party in the rulemaking proceeding and the FCC was afforded an opportunity to rule on the issue.69 Because COMSAT did participate in the rulemaking proceeding and did file comments70with the agency on this question, we agree that § 405 does not bar our review.71 179 The FCC is more persuasive when it argues that COMSAT is really asking for consideration of its individual circumstance rather than challenging the rule as a whole. In this situation, the FCC argues that waiver is a more appropriate remedy than is judicial review. In fact, COMSAT did file a petition for waiver but withdrew it without explanation shortly before the FCC filed its brief in this case. COMSAT now claims to be bringing this claim on behalf of all international carriers in similar circumstances, but it fails to identify any such entities and remains alone in its petition for review. 180 While waiver may be an appropriate remedy, the FCC cites no authority for the proposition that consideration of a waiver is required before judicial review may occur, and our research has found no such authority. The case relied on by the FCC stands only for the proposition that waiver will be allowed as long as the underlying rule is rational.72 We see no statutory basis for denying judicial review on the ground that a party must first seek a waiver. Therefore, we consider the rule on its merits. 181 COMSAT's attack boils down to the argument that it is being unfairly treated because it will be forced to pay more in universal service contributions than it can generate in interstate revenues.73 It makes a compelling argument that this result alone violates the equitable language of the statute. The FCC's response to the statutory challenge simply states that there is nothing "inequitable" about requiring a carrier benefiting from universal service from contributing to it. 182 Under this reading, however, it is difficult to know what the FCC would consider inequitable, because any carrier could conceivably benefit from universal service. Obviously, the language also refers to the fairness in the allocation of contribution duties. In this matter, COMSAT can show that it is being forced to pay more under this rule than it can generate in revenues, yet the FCC does not find even this situation "inequitable." 183 Moreover, the FCC dismisses COMSAT's claim that the agency violates the "nondiscriminatory" requirement of § 254(d) simply by saying that the agency has recognized that some providers of international service will be treated differently from others. But this recognition of discrimination hardly saves the agency from the statutory requirement that contributions are collected on a non-discriminatory basis. 184 The agency falls back on its discretion, under the statute, to balance the competing concerns set forth in § 254(b), which include the need for sufficient revenues to support universal service. While the statute allows the FCC a considerable amount of discretion, however, that discretion is not absolute. The heavy inequity the rule places on COMSAT and similarly situated carriers cannot simply be dismissed by the agency as a consequence of its administrative discretion. 185 Therefore, the agency's interpretation of "equitable and nondiscriminatory," allowing it to impose prohibitive costs on carriers such as COMSAT, is "arbitrary and capricious and manifestly contrary to thestatute." Chevron, 467 U.S. at 844. COMSAT and carriers like it will contribute more in universal service payments than they will generate from interstate service.74 Additionally, the FCC's interpretation is "discriminatory," because the agency concedes that its rule damages some international carriers like COMSAT more than it harms others. The agency has offered no reasonable explanation of how this outcome, which will require companies such as COMSAT to incur a loss to participate in interstate service, satisfies the statute's "equitable and nondiscriminatory" language. We therefore reverse and remand this portion of the Order for further consideration. 186 6. Timing. 187 a. Timetable for the Implementation of an Explicit System of Universal Service Support. 188 On statutory and constitutional grounds, GTE attacks the FCC's timetable for implementation of an explicit system of universal service support.75 First, GTE argues that the agency's decision to wait until January 1, 2000, before implementing its plan for providing explicit support for universal service violates the statutory requirements of § 254. Second, GTE asserts that the delay in implementation results in an unconstitutional taking. 189 i. Statutory Language. 190 GTE contends that the delay in implementation violates § 254(e) because it fails to provide "sufficient" funding to support universal service.76 In fact, between the Order's release on May 8, 1997, and its implementation on January 1, 2000, the FCC will have provided no explicit support to the ILEC's, while it has already exposed them to outside competition. In theory, then, new entrants could begin "cherry-picking" the ILEC's' best lowcost, high-profit customers, leaving the ILEC's stuck with the high-cost, money-losing customers that are supposed to be supported by the new universal service subsidy system. This would erode the old implicit subsidy system before the FCC had implemented the new explicit subsidy system. 191 The question is whether the statute's language plainly requires the FCC to have implemented explicit subsidies at the same time that it issued the Order on May 8, 1997. GTE claims the statute requires immediate implementation. But the plain language of § 254(a)(2) requires us to reach the opposite result: 192 The Commission shall initiate a single proceeding to implement the recommendations from the Joint Board required by paragraph (1) and shall complete such proceeding within 15 months after February 8, 1996. The rules established by such proceeding shall include a definition of the services that are supported by Federal universal service support mechanisms and a specific timetable for implementation. 193 47 U.S.C. § 254(a)(2)(emphasis added). 194 By instructing the FCC to establish a "timetable for implementation" by the statutory deadline, Congress assumed the implementation process would occur over a transition period after the fifteen-month deadline. There is no reason to believe--and GTE does not offer a reason--that the instruction to establish a timetable actually means immediate implementation of the explicit subsidy system at the statutory deadline.77 195 Not surprisingly, GTE falls back on the term "sufficient" and argues that even if the FCC may slowly implement the high-cost support program, the statute still requires the agency to ensure that support is sufficient during the transition period. For reasons that we have outlined, the FCC should be accorded a substantial amount of deference when interpreting this word. See supra part III.A.a.i. 196 GTE essentially asks us to hold that "sufficient" is violated whenever there is a change (or the possibility of a change) from the current levels of universal service support. The plain meaning of "sufficient" is far from unambiguous as it pertains to the timing of the high-cost support program's implementation. Calculating how much support is sufficient to provide support for universal service is a judgment the FCC is better able to make than are we, and we therefore defer to its reasonable interpretation under Chevron step-two. 197 As the agency explains, the amount of competition in local markets depends on a number of different factors, of which the implementation of the universal service plan is only one. To enter a new market, entrants must invoke rights to interconnection agreements under §§ 251 and 252.78 In almost all cases, these agreements require lengthy arbitrations by state commissions. Even after the completion of such arbitrations, there may be many court challenges. Because only competition in local markets can erode the current implicit subsidy system to an insufficient level, the FCC made a reasonable determination that there was littlechance of such competition's emerging in the near future. 198 Where the statutory language does not explicitly command otherwise, we defer to the agency's reasonable judgment about what will constitute "sufficient" support during the transition period from one universal service system to another. We follow the Eighth Circuit's recent holding on a similar issue: "The Commission has made a predictive judgment, based on evidence in the record and adequately explained in the order, that competitive pressures in the local exchange market will not threaten universal service during the interim period until the permanent, explicit universal service support mechanisms have been fully implemented." Southwestern Bell, 153 F.3d at 537. 199 ii. Taking. 200 In some ways, GTE's takings argument is simply another version of its contention regarding lack of "sufficient" support. On both issues, GTE argues that the FCC's decision to leave ILEC's exposed to local competition without first implementing the new universal service plan results in a severe reduction of its revenues from local service. Relying on Brooks-Scanlon v. Railroad Comm'n, 251 U.S. 396 (1920), GTE argues that a regulated entity cannot be forced to operate one segment of its business at a loss on the expectation that it can make up the shortfalls from another competitive line of business. At the very least, GTE says, the FCC should adopt a narrow construction of the statutory language to avoid any constitutional infirmities.79 201 The FCC responds that before a narrowing construction should be considered, GTE must show that a taking will "necessarily" result from the regulatory actions. See United States v. Riverside Bayview Homes, 474 U.S. 121, 128 n.5 (1985). Even if GTE can show that some taking will result, it must demonstrate that its losses are so significant that the "net effect" is confiscatory. See Duquesne, 488 U.S. at 310-16. 202 GTE has failed to meet the requirements of Duquesne, because it cannot show that it will lose any revenue at all, much less enough to constitute a taking under more recent precedent. Its attempt to distinguish Duquesne is misguided because, contrary to GTE's claim, the Duquesne Court did not base its finding of takings on the fact that the market was no longer closed to competition. 203 Rather, Duquesne stands for the proposition that "no single ratemaking methodology is mandated by the Constitution, which looks to the consequences a governmental authority produces rather than the techniques it employs." Duquesne, 488 U.S. at 299 (Scalia, J., concurring). Duquesne does not require courts to engage in a takings analysis whenever an agency opens a previously regulated market to competition. Further, as we explained in sustaining the forward-cost looking methodology, GTE's reliance on Brooks-Scanlon is misplaced, because we will not apply the rule in that case to transitional or temporary periods. See Continental Airlines, 784 F.2d at 1251. 204 b. Access Charges at Forward-looking Cost Levels as Soon as Cost Models Are Available. 205 MCI asks the FCC to reduce access charges--the fees charged by ILEC's on interstate calls--to the forward-looking cost level used by the agency to calculate support for high-cost areas. Under the FCC's plan, ILEC's will be required to reduce their access charges by the amount they receive in the form of explicit universal service subsidies. MCI argues that by permitting the ILEC's to retain theamount of access charge revenue above cost, the FCC has violated its statutory mandate to eliminate implicit subsidies when it implements the new universal service plan. 206 This argument differs from GTE's assertions. While GTE seeks immediate implementation of the explicit subsidy program, MCI seeks to include the elimination of implicit subsidies within the rubric of the explicit subsidy program. In fact, GTE's fear that implicit subsidies will be eroded during the transition period is precisely the goal of MCI's intervention. Because GTE does not seek the elimination of the implicit subsidies, it is making an argument different from MCI's. 207 For this reason, we agree with the FCC that MCI cannot properly intervene on this issue, because none of the petitioners raised the same challenges to the Order. In United Gas Pipe Line, 824 F.2d at 437, we held that "intervenors may not challenge aspects of the Commission's orders not raised in the petitions for review." Because MCI's challenge does not raise an issue brought up by any of the petitioners, we do not consider its arguments on appeal, but follow the District of Columbia Circuit and decline to grant intervenor standing in a situation in which "we could grant [the intervenor] the full relief it seeks while rejecting all of the petitioners' challenges, and vice versa." Illinois Bell Tel. Co. v. FCC, 911 F.2d 776, 786 (D.C. Cir. 1990).80 208 c. Plan for Transition to a New Universal Service System For Rural, Insular, and High-cost Areas. 209 The FCC's transition plan for its new explicit subsidy universal support system does not immediately apply to all ILEC's. All carriers eligible for universal service support will become part of the new system on January 1, 2000. Small rural carriers, however, will not be required to move into the new system until 2001 at the earliest. See Order ¶ 204. Specifically, the agency (1) has exempted rural carriers, defined as those carriers serving study areas of less than 100,000 lines, from the new forward-looking cost methodology until at least January 1, 2001,81 and (2) has allowed carriers with 200,000 or fewer working loops per study area to continue recovering extra support from the high-cost fund until implementation of the new methodology on January 1, 2000. See Order § 210. 210 i. Establishing a Longer Transition Period for Rural Carriers with fewer than 100,000 lines. 211 Vermont82 attacks the small rural carrier exemption because it does not permit large carriers who happen to serve rural areas the same delayed transitional treatment that rural carriers with studyareas of less than 100,000 lines will receive. Vermont argues that there is no statutory or reasonable basis for distinguishing among rural carriers simply because of their size. For example, census statistics show that Vermont has more residents living in rural areas than does any other state, yet its carrier, Bell Atlantic, does not qualify for the same treatment as do other rural carriers as defined by the FCC's 100,000-line distinctions. 212 Vermont does not point to any statutory authority for its claim that the FCC must give all rural carriers the same treatment under the plan. Instead, it simply argues there is no good reason to treat Bell Atlantic differently from other rural carriers. For these reasons, it asks us to reverse on arbitrary-and-capricious grounds under the APA. 213 A statute survives judicial scrutiny under the APA's "arbitrary and capricious" standard as long as the agency "articulates a rational relationship between the facts found and the choice made" and "so long as the agency gave at least minimal consideration to relevant facts contained in the record." Harris, 19 F.3d at 1096. The FCC provides at least two reasons that articulate such a "rational relationship." 214 First, because the agency delayed the transition for rural carriers on the ground that its cost models for small carriers were inadequate, it was reasonable to treat Bell Atlantic differently. After all, Bell Atlantic is a large ILEC for which the FCC does have cost models. Second, the FCC justifies its delay for small rural carriers because it has found that they will have greater difficulty adjusting to a new system. Again, such a finding would not apply to Bell Atlantic. These reasons suffice. 215 ii. Continuing Application of Existing High-cost Rules until the New Universal Service system Takes Effect. 216 Vermont83 challenges the decision to maintain extra support for ILEC's with study areas of 200,000 or fewer loops until the new methodology is implemented on January 1, 2000. In other words, by exempting carriers with 200,000 or fewer lines from the new high-cost support methodology, the FCC again decided to give extra support to smaller carriers, in this case defined as those carriers with study areas containing 200,000 or fewer loops. As it did in challenging the 100,000 line distinction, Vermont asserts that the distinction is arbitrary and capricious because the FCC ignores evidence that size is not a reliable predictor of cost. 217 The FCC again argues that the 200,000-line rule is transitional, interim relief. The agency has stated that the extra support provided by this rule will expire when the new forward-looking cost methodology goes into effect on January 1, 2000. It asks us to accord it the "substantial deference" it needs to develop transitional solutions to complex regulatory problems. See MCI Telecomms. v. FCC, 750 F.2d 135, 140 (D.C. Cir. 1984). 218 In contrast to the situation involving the rural carrier exemption, the FCC has set a specific date for the end of this transitional period: January 1, 2000. Accordingly, the agency's commitment to a specific date for termination of the support resulting from the 200,000-loop rule makes the rule sufficiently transitional to avoid judicial review. Therefore, for lack of ripeness, we will not review Vermont's challenge to the effects of the 200,000-loop distinction.84 219 B. Subsidization of Services for Schools, Libraries, and Health Care Providers. 220 Section 254(h) adds a new wrinkle to the concept of universal service by directing the FCC to provide support to elementary and secondary schools, libraries, and health care providers. Thus, the agency has a new statutory mandate to subsidize support for certain beneficiaries, irrespective of whether they are high-cost consumers. GTE raises objections to the agency's implementation of this broad statutory mandate,85 and Cincinnati Bell and the states challenge the proposal to assess contributions to this new universal service fund. 221 1. Mandating Support for Internet Access and Internal Connections to Schools and Libraries. 222 While section 254(h) plainly authorizes the FCC to support discounted telecommunications services to schools and libraries, GTE finds no equivalent statutory authority to support discounted internet access and internal connections. Therefore, GTE argues that the agency exceeded its statutory authority when it mandated support for discounted internet services and internal connections. 223 Although we agree with GTE that the statute and its legislative history do not support the FCC's interpretation, the language of the statute is ambiguous enough to require deference under Chevron step-two. Because, however, the FCC's decision to extend universal service support to internet access and internal connections raises grave doubts as to whether § 254(h) creates an unconstitutional tax, we construe the statute narrowly to avoid raising these constitutional problems.86 224 The FCC concedes that internet access and internal connections cannot be defined as "telecommunications services" for purposes of the section.87 It argues, however, that the plain language of § 254(h)(1)(B) and (c)(3) authorizes it to require discounted internet access and internal connections to schools and libraries (but not to health care providers). 225 Subsection 254(h)(1)(B) requires all telecommunications providers to provide to elementary schools, secondary schools, and libraries, on request, discounted services "that are within the definition of universal service under subsection (c)(3) of this section." Subsection (c)(3) authorizes the FCC to designate "additional services for such support mechanisms for schools, libraries, and health care providers for thepurposes of subsection (h) of this section." These "additional services" are "[i]n addition to services included in the definition of universal service under paragraph (1)," which defines universal service as an "evolving level of telecommunications services." 226 The FCC points out that there is no language restricting these "additional" services to telecommunications services. Furthermore, Congress used the limiting term "telecommunications services" in § 254(h)(1)(A) when discussing the provision of universal service support for rural health care providers. The agency argues that "the varying uses of the terms 'telecommunications services' and 'services' in § 254(h)(1)(A) and (B) suggests that the terms were used consciously to signify different meanings." Order ¶ 439. Therefore, the FCC concluded that the term "additional services" is not limited to telecommunications services. It then decided that, based on the legislative history and its understanding of the purposes of the statute, it should require internet access and internal connections88 support for schools and libraries. 227 We first consider whether the FCC's interpretation conflicts with the plain language of § 254(h)(1)(B) and (c)(3). Although the best reading of the statute does not authorize the agency's actions, we find the statute sufficiently ambiguous to invoke step- two of Chevron. 228 The statute restricts the FCC's authority to interpret the phrase "additional services" in subsection (c)(3) to "the purposes of subsection (h) of this section." The use of the phrase "telecommunications services" in the title of § 254(h) indicates that the "purposes of subsection (h)" are to provide discounted support for telecommunications services.89 229 We find further support for this reading in the legislative history of § 254(h): "New subsection (h) of section 254 is intended to ensure that health care providers for rural areas, elementary and secondary school classrooms, and libraries have affordable access to modern telecommunications services . . . ."90 The House Conference Report also elaborates on the interaction between subsections (h)(1)(B) and (c)(3): 230 New section (h)(1)(B) requires that any telecommunications carrier shall, upon a bona fide request, provide services for educational purposes included in the definition of universal service under new subsection (c)(3) for elementary and secondary schools and libraries at rates that are less than the amounts charged for similar services to other parties, and are necessary to ensure affordable access to and use of such telecommunications services.91 231 And while the legislative history of subsection (c)(3) supports giving the FCC discretion when designating services for schools and libraries, it nevertheless describes the subsection (c)(3) definition as "applicable only to public institutional telecommunications users."92 This language provides more evidence that Congress intended thatthe FCC designate additional telecommunications services under subsection (c)(3) rather than any additional services that the agency deems desirable. 232 Indeed, the agency's broad reading of "additional services" would mean that the use of the word "services" in other parts of § 254(c) could be broadened to include non-telecommunications services. For instance, § 254(c)(2) authorizes the Joint Board to recommend modifications to the definition of "services." Under the FCC's interpretation, the Joint Board (composed of state telecommunications regulators and members of the FCC) could be free to redefine "services" to include services unrelated to telecommunications. This result is an implausible reading of Congress's intent.93 233 This is not the end of the analysis, however, because some aspects of the statute's language and legislative history also support the FCC's reading. First, the plain language of § 254(c)(1) invites the FCC periodically to re-define "universal service" to "tak[e] into account advances in telecommunications and information technologies and services." Moreover, the "purposes of subsection (h)" language in subsection (c)(3) could include more than the "telecommunications services" referred to in § 254(h)'s section heading. After all, subsection (h)(2)(A), which is also one of the "purposes of subsection (h)," instructs the FCC to establish competitively neutral rules to "enhance . . . access to advanced telecommunications and information services . . . ." 234 Finally, some of the legislative history implies that Congress intended for subsection(h) to support internet access: 235 [T]he provisions of subsection (h) will help open new worlds of knowledge, learning and education to all Americans--rich and poor, rural and urban. They are intended, for example, to provide the ability to browse library collections, review the collections of museums, or find new information on the treatment of an illness, to Americans everywhere via schools and libraries.94 236 The reference to "brows[ing] library collections" indicates that in drafting subsection (h), Congress envisioned some kind of support for internet access. 237 The best reading of the relevant statutory language nonetheless indicates that the FCC exceeded its authority by mandating discounts for internet access and internal connections. The statutory invitation in subsection (c)(1) to "re-define" universal service to include information services does not necessarily relate to the FCC's authority under subsection (c)(3). 238 Additionally, subsection (h)(2)(A) provides the agency only with authority to "establish competitively neutral rules to enhance access" to information services. It does not contain specific language supporting provision of such services "at rates less than the amounts charged for similar services to other parties," as in subsection (h)(1)(B). And finally, the legislative history does not indicate whether Congress thought the statute would enhance access to internet services through discounts on telecommunications services or, instead, through direct subsidies for internet access. 239 Even though GTE has offered a persuasive reading of the statute, its plain language does not make Congress's intentsufficiently "unambiguous" for Chevron step-one review. Therefore, we defer to the FCC's interpretation under Chevron step-two and affirm those aspects of the Order providing internet services and internal connections to schools and libraries.95 240 2. Authority To Provide Support Payments to Non-telecommunications Entities That Provide Internet Access and Internal Connections to Schools and Libraries. 241 The FCC invokes its rulemaking power under § 254(h)(2)(A) and its "necessary and proper" authority under § 154(i) to provide support payments to non-telecommunications entities that provide internet access and internal connections to schools and libraries. GTE attacks this decision as violating the express intent of Congress as read through the plain language of the statute. 242 The FCC does not argue that any specific provision of the statute authorizes it to add non-telecommunications companies to the universal service payment system. Rather, it avers that (1) the statute gives it broad authority to establish competitively neutral rules; (2) the statute does not speak directly to the issue of non-telecommunications providers; and (3) the statute's silence indicates that the agency should receive Chevron deference. 243 GTE relies on the traditional maxim of statutory construction, "expressio unius est exclusio alterius."96 GTE points out that § 254(h)(1)(B) already discusses how carriers will be reimbursed for providing discounted services: "[a] telecommunications carrier providing service under this paragraph . . . ." According to GTE, Congress's choice of the phrase "telecommunications carrier" precludes the FCC from providing those same payments to non-telecommunications carriers. 244 We conclude that the combination of the FCC's "necessary and proper" authority under § 154(i) and the limited usefulness of the expressio unius doctrine in the administrativecontext permit the FCC to expand the reach of universal support to non-telecommunications carriers. While courts have rightly warned against using silence in a statute to give "agencies virtually limitless hegemony,"97 we are convinced that Congress intended to allow the FCC broad authority to implement this section of the Act. 245 In Iowa Utilities Board, the Eighth Circuit offered this explanation of the reach of § 154(i) in denying the FCC jurisdiction over the pricing of local telephone service: "[Section 154(i)] merely suppl[ies] the FCC with ancillary authority to issue regulations that may be necessary to fulfill its primary directives contained elsewhere in the statute. [It does not] confer[] additional substantive authority." 120 F.3d at 795. In this matter, however, the FCC is not asserting additional substantive authority, as it tried to do in Iowa Utilities. It is not asserting additional jurisdictional authority, but, rather, is issuing a regulation "necessary to fulfill its primary directives." 246 The agency's primary directive is to "enhance access to advanced telecommunications and information services" for schools and libraries. See § 254(h)(2)(A). It is taking modest steps to ensure that Congress's instructions on expanding universal service in the form of internet access and internal connections will not be frustrated by local monopolies.98 For these reasons, we affirm the decision to permit support of non-telecommunications carriers providing internet access and internal connections to schools and libraries. 247 3. Encroaching on State Authority To Set Discount Rates for Intrastate Services to Schools and Libraries. 248 Section 254(h)(1)(B) divides the regulation of discount rates on services offered to schools and libraries between the FCC and the states. "The discount shall be an amount that the Commission, with respect to interstate services, and the States, with respect to intrastate services, determine is appropriate and necessary to ensure affordable access to and use of such services by such entities." § 254(h)(1)(B). 249 The FCC has decided to offer federal universal service funds to help support the intrastate rate discounts. Predictably, the agency has conditioned such funding on the states' "establish[ing] intrastate discounts at least equal to the discounts on interstate services." Order ¶ 550. GTE challenges this condition as an encroachment on the states' statutory right to "determine [what is] appropriate and necessary to ensure affordable access." 250 GTE has failed to point to any statutory or other authority prohibiting the FCC's condition for funding. States are free to refuse federal support for intrastate discounts and, therefore, remain free to determine what is "appropriate and necessary," consistent with the plain language of the statute. In the Tenth Amendment context, this court has refused to view similar federal conditional grants as "equivalent to coercion." See Texas v. United States, 106 F.3d 661, 666 (5th Cir. 1997). Without express statutory language prohibiting such a practice, we reject GTE's challenge to the FCC's funding conditions. 251 4. Exercising Authority in Deciding That Schools and Libraries Can Obtain Discounts on All Commercially Available Telecommunications Services. 252 The FCC has also decided that, pursuant to its authority under § 254(c)(3), it will allow schools and libraries to obtain supported discounts on all commerciallyavailable telecommunications services. The agency believes that this approach will maximize schools' and libraries' flexibility to purchase whatever package of services they need. 253 GTE challenges the agency's statutory authority to refuse to limit the types of services that will be available for support. It contends that the plain language of § 254(c)(3) requires the FCC to "designate" which telecommunications services will receive universal service support and which telecommunications services will not. The key to GTE's argument is the meaning of "designate." 254 According to GTE, "designate" denotes some action of specific selection. The standard dictionary definition of "designate" includes "to distinguish as to class" and "to indicate and set apart for a specific purpose, office, or duty." Merriam-Webster's Collegiate Dictionary 313 (10th ed. 1994). GTE claims that by using the word "designate," Congress instructed the FCC to "indicate and set apart" which services may receive support under § 254(h). GTE also finds support in the legislative history, which says the FCC should "take into account the particular needs of . . . schools and libraries."99 255 We disagree with GTE that the plain-meaning understanding of "designate" demonstrates Congress's unambiguous intent to require the FCC to specify which services will be supported. By using the word "designate," Congress also could have meant for the agency to authorize a broad class of services. Thus, by "designating" all commercially available telecommunications service, the FCC can be said to have "designated" which services may be supported. For this reason, the designation "commercially available telecommunications services" does not violate the plain meaning of the statute under Chevron step-one. 256 Under Chevron step-two, the FCC has reasonably concluded that it can fulfill its statutory duty to "designate" while giving schools and libraries the maximum flexibility to choose which services they need. It is not unreasonable for the FCC to conclude that it could best "take into account . . .the particular needs" of schools and libraries by allowing support for all commercially available telecommunications services.100 Because Congress's use of "designate" in subsection (c)(3) does not unambiguously require the FCC to limit which services may be supported, and because the FCC's decision is reasonable under Chevron step-two, we reject GTE's request and affirm the decision to allow schools and libraries to obtain support for all "commercially available telecommunications services." 257 5. Authority To Subsidize Toll-Free Telephone Calls to Internet Service Providers by Non-rural Health Care Providers. 258 Congress directed the FCC to provide universal service support for "any public or nonprofit health provider that serves persons who reside in rural areas." § 254(h)(1)(A). Congress also instructed the agency "to enhance, to the extent technically feasible and economically reasonable, access to advanced telecommunications and information services for all public and nonprofit . . . health care providers." The FCC has seized on the more general language in the second provision as authority for subsidizing telephone calls to internet service providers by both rural and non-rural health care providers. 259 GTE advances an argument based on the expressio unius canon. Because the first provision gives specific instructions onproviding subsidized support for health care providers and explicitly limits that support to rural health care providers, GTE argues that the FCC has no statutory authority to expand such support to non-rural health care providers. In the agency's view, Congress could have extended support to non-rural providers, but chose not to. This signifies a Congressional decision that the FCC should respect. 260 The FCC responds that the expressio unius canon should not resolve a question of statutory interpretation in an administrative law context. Additionally, it argues that § 254(h)(2)(A) obligates the FCC to "enhance, to the extent technically feasible and economically reasonable, access to advanced telecommunications and information services." 261 We do not read § 254(h)(2)(A)'s "enhancing" language to require the FCC to act as it did here. But, we conclude that the language in § 254(h)(2)(A) demonstrates Congress's intent to authorize expanding support to "advanced services," when possible, for non-rural health providers. 262 GTE has already established that § 254(h)(1)(A) requires support for telecommunications service to rural health care providers only. We can then read § 254(h)(2)(A) as an instruction to the FCC to work to support "advanced services" for non-rural health care providers when "economically reasonable." Importantly, the FCC's plan does not extend, to non-rural health providers, the same telecommunications discounts enjoyed by § 254(h)(1)(A) rural health providers. Rather, the agency chose to support access (through subsidized telephone calls) to an "advanced . . . information service" (an internet service provider), finding that this subsidy was "economically reasonable" and "technically feasible." Order ¶ 748. 263 The FCC has found a way to "enhance access," as authorized by the plain language of § 254(h)(2)(A), so we affirm this portion of the Order. 264 6. Contribution System To Provide Universal Service Funding for Schools, Libraries, and Rural Health Providers. 265 The FCC decided to fund the universal support mechanisms for schools, libraries, and rural health care providers by "assessing both the interstate and intrastate revenues of providers of interstate telecommunications services." Order ¶ 808. The uncertainty of state support for the new § 254(h) subsidies and other financial considerations, according to the FCC, justifies assessing both the intrastate and interstate revenues of interstate carriers. 266 Cincinnati Bell ("CBT"), a small carrier with a mostly intrastate revenue base, attacks the decision as a violation of § 2(b)'s prohibition on federal regulation of intrastate services. The states challenge the FCC's related assertion that it has the authority to require carriers to recover their intrastate contributions from the states. 267 a. Authority To Assess Contributions on the Combined Interstate and Intrastate Revenues of Carriers That Provide Interstate Telecommunications Services. 268 Along the same lines as Bell Atlantic's challenge to the "no disconnect" rule, CBT argues that the FCC's decision to assess intrastate revenues exceeds its jurisdiction, in violation of the still-intact Louisiana PSC reading of § 2(b). CBT contends that unlike the provisions considered in Iowa Utilities, § 254 does not "apply" to intrastate matters in a sufficiently unambiguously manner so as to confer federal jurisdiction. 269 As we have discussed, we understand § 2(b) to serve as both a rule of statutory construction in considering whether a provision applies to intrastate matters and as a jurisdictional fence against assertions of the FCC's ancillary jurisdiction. See Iowa Utilities, 119 S. Ct. at 731. Like Bell Atlantic, CBT is using § 2(b) to challenge theFCC's construction of § 254 to apply to intrastate ratemaking. 270 The FCC's first defense denies that its actions even constitute a "regulation" that would fall under the rule of statutory construction created by § 2(b) and Louisiana PSC. The agency argues that simply factoring intrastate revenues into calculations of universal service contributions does not constitute regulation of those services. The FCC has used both intrastate and interstate revenues as a basis for imposing accounting obligations or tariff requirements in other contexts without any court's finding § 2(b) violations. Additionally, the FCC has stated that carriers may recover their contributions only from interstate rates. The agency believes this last requirement will prevent its contribution requirements from improperly affecting intrastate rates. 271 Despite the persuasiveness of this argument, we conclude that § 2(b)'s broad language encompasses the FCC's decision to assess intrastate revenues. The plain language of § 2(b) discusses "jurisdiction with respect to . . . charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service . . . ." We agree with CBT that the inclusion of intrastate revenues in the calculation of universal service contributions easily constitutes a "charge . . . in connection with intrastate communication service." 272 The plain language of § 2(b) directs courts to consider FCC jurisdiction over a very broad swathe of intrastate services. We decline to exempt the FCC's assessment of intrastate revenues from the ambit of § 2(b).101 273 The FCC then contends that § 254 does apply to intrastate matters, because it unambiguously authorizes the agency to develop universal service mechanisms that are sufficient to support both interstate and intrastate service. In support of this assertion, the agency points to § 254(d)'s requirement that "[e]very telecommunications carrier that provides interstate telecommunications services shall contribute . . . to the specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance universal service." The FCC then compares this language to § 254(f), which allows states to adopt universal service regulations as long as they do not "rely on or burden Federal universal service support mechanisms." This language, the FCC claims, shows that Congress intended for it to bear the primary responsibility for ensuring the sufficiency of universal service for both interstate and intrastate services. 274 These two provisions do not reflect enough of an unambiguous grant of authority to overcome the presumption established by § 2(b). While, under Chevron step-two, we usually give the agency deference in its interpretation of ambiguous statutory language, the Supreme Court continues to require the agency to overcome the § 2(b) statutory presumption with unambiguous language showing that the statute applies to intrastate matters. See Iowa Utilities, 119 S. Ct. at 731. 275 While the text of the statute does not impose any limitation on how universal service will be funded, it also does not explicitly state that the FCC has the responsibility to fund intrastate universal services. The agency seeks authority "in the broad language" of the statute, but"we do not find the meaning of the section so unambiguous or straightforward as to override the command of § 152(b)." See Iowa Utilities, 119 S. Ct. at 731 (quoting Louisiana PSC, 476 U.S. at 377). 276 Without a finding that § 254 applies, the FCC has no other basis to assert jurisdiction, because Iowa Utilities explicitly prohibits FCC jurisdiction over intrastate matters stemming from the agency's plenary powers. See id. Therefore, we reverse that portion of the Order that includes intrastate revenues in the calculation of universal service contributions. 277 b. Authority To Refer Carriers to the States To Seek Recovery of Intrastate Contributions. 278 Though it stated that it had "the authority to refer carriers to the states to seek authority to recover a portion of their intrastate contribution from intrastate rates," Order ¶ 818, the FCC also declined to exercise this authority. Instead, it directed carriers to recover their contributions from interstate revenues only. 279 The states and CBT challenge this assertion of authority on the same grounds they question the inclusion of intrastate revenues for universal service contributions. Because the FCC bases its authority on the same provisions it cited on that issue, our decision to deny the agency jurisdiction on that question applies equally to the its claim of authority to assess intrastate rates. 280 The FCC also raises a prudential defense, arguing that because it has not chosen to exercise its authority, the issue is not yet ripe for judicial review. Additionally, the agency argues that both petitioners lack standing. We do not accept either of these prudential defenses. 281 i. Ripeness. 282 Conceding that the FCC has not yet acted on its decision to assert authority over intrastate services, the states reject the agency's ripeness claim because the "question presented is purely legal." See New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 833 F.2d 583, 587 (5th Cir. 1987).102 Pointing also to Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190 (1983), the states argue that when the FCC has asserted its authority in a final decision on a legal question such as its jurisdiction over intrastate rates, "one does not have to await the ultimate impact of the threatened injury to obtain preventive relief." See id. at 201. 283 This issue is ripe for judicial review. The two factors for considering ripeness--fitness for judicial decision and hardship to the parties--support our consideration of this question. Courts should be able to resolve a question such as jurisdiction and authority under the Act. Additionally, the states already have shown one example of the harm in withholding review. For instance, MCI, in the face of state opposition, has already begun billing some customers based on revenue from intrastate calls.103 284 ii. Standing. 285 The FCC's standing defense has even less merit. First, states have a sovereign interest in "the power to create and enforce a legal code." See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 601 (1982). Moreover, the FCC's refusal to exercise its declared authority does not deprive states of standing. The states point out that the District of Columbia Circuit will not find a lack of standing simply because an agency has refused to enforce its own regulations. See Alaska v. United States Dep't of Transp., 868 F.2d 441, 444 (D.C. Cir. 1989). For the same reasons, we also reject the FCC's standing defense. 286 iii. Merits. 287 Having disposed of the FCC's prudential defenses, we reverse its claim that it can refer these carriers to the states for recovery of those contributions. This is for the same reasons that we reject the agency's assertions of jurisdiction to assess intrastate revenues for contributions. The FCC has failed to point to any statutory authority that explicitly demonstrates how § 254 applies to intrastate universal service. Therefore, we deny the agency's claim of jurisdiction and reverse this portion of the Order.104 288 IV. Conclusion. 289 It is difficult to disagree with the Supreme Court's assessment that the Act is "a model of ambiguity or indeed even self-contradiction." Iowa Utilities, 119 S. Ct. at 738. As the Court notes, Congress realizes that many of these ambiguities will be resolved by the FCC during its implementation of the statute, and we, like the Court, generally defer to the agency's interpretation of the sometimes-mysterious sections. See Chevron, 467 U.S. at 842-43. In this case, we have done so, and we affirm most aspects of the Order implementing the universal service program and dismiss challenges to several parts of the Order as moot. 290 Still, our deferential approach does not require us to affirm the FCC in every circumstance. In particular, the agency exceeded its statutory authority in (1) prohibiting the states from imposing eligibility requirements and (2) requiring ILEC's to recover their contributions from access charges. Applying the Court's most recent pronouncements on the Act, we also deny the FCC jurisdiction over state control of local service disconnections and universal service contributions based on intrastate revenues. We remand one petition to the agency for reconsideration, so it can reconsider the propriety of assessing the international revenues of interstate carriers. 291 For the reasons stated, the petitions for review are GRANTED IN PART and DENIED IN PART. The May 8, 1997, Universal Service Order is AFFIRMED in part, REMANDED in part, and REVERSED in part, in accordance with this opinion. NOTES 1 Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (to be codified as amended in scattered sections of title 47, United States Code). 2 In economic terms, universal service programs are justified as a way to address a "market failure." While the carriers have little incentive to expand the telecommunications infrastructure into areas of low population density or geographic isolation, each individual user of the network benefits from the greatest possible number of users. See Eli M. Noam, Will Universal Service and Common Carriage Survive the Telecommunications Act of 1996?, 97 Colum. L. Rev. 955, 958-59 (1997). 3 The first Recommended Decision was issued on November 8, 1996 (12 FCC Rcd 87 (1996)), the second Recommended Decision on November 25, 1998 (13 FCC Rcd 24744 (1998)). 4 Congress also directed that the FCC establish rules to achieve the local competition goals of the Act within six months of the Act's enactment. The agency met this deadline when it issued the Local Competition Order on August 8, 1996. Almost all parts of this order were affirmed by the Supreme Court. See AT&T v. Iowa Utils. Bd., 119 S. Ct. 721 (1999). On the same day it issued the Order, the FCC released the Access Charge Order. Access charges are the charges assessed between local exchange companies (LEC's) and interexchange companies (IXC's) for the use of one network by callers from the other network. Challenges to this order were also consolidated before the Eighth Circuit. See Southwestern Bell Tel. Co. v. FCC, 153 F.3d 523 (8th Cir. 1998). 5 This methodology is a departure from the revenue-based national benchmark proposed in the Order. The revenue-based benchmark was challenged for including discretionary revenues in its calculation and for its nationwide scope. Because of the revisions proposed by the Joint Board's Second Recommended Decision, we now consider those challenges to the prior revenue-based methodology moot. See infra part III.A.1.b. 6 The agency made a decision to provide only 25% of the funds for high-cost support, leaving the state commissions ("the states") to provide the rest of the funds. According to the FCC, the states traditionally have provided a majority of universal service support, and if the agency were to fund all the high-cost support, it would overcompensate carriers. Moreover, the FCC claims that the 25% figure approximates the costs that historically have been assigned to the interstate jurisdiction. See Order ¶ 201. The Joint Board, however, recommended that the FCC scrap the 25%/75% division of responsibility in favor of a more flexible plan of allocation. See Second Recommended Decision ¶¶ 4-5, 41-46. The FCC accepted the Joint Board's recommendation and eliminated the 25/75 rule on May 27, 1999, thereby mooting the issue for this court. See infra part III.A.1.c. See also Seventh Report and Order ¶ 3 ("We explicitly reconsider and repudiate any suggestion in the First Report and Order that federal support should be limited to 25 percent of the difference between the benchmark and forward-looking cost estimates . . . ."). 7 These carriers include wireless service providers of paging and commercial mobile radio service ("CMRS"). The FCC also rejected a claim by CMRS providers seeking an exemption from making contributions to state support funds. 8 In the original order, the FCC had planned implementation by January 1, 1999. This date was delayed until July 1, 1999, and again to January 1, 2000. See Seventh Report and Order ¶ 5. 9 The FCC also determined that it could require carriers to contribute, based on both interstate and intrastate revenues, to high-cost support as well as § 254(h) support. But for policy reasons, it decided to assess contributions on both interstate and intrastate revenues for support of § 254(h) programs only. It maintains, however, that it may impose similar assessments for high-cost support as well. See Seventh Report and Order ¶¶ 87-90. We review the states' challenge to the FCC's claim of jurisdictional authority over intrastate rates in the context of its actions regarding support of the § 254(h) programs, but we also discuss its implications for FCC jurisdictional authority for support of high-cost programs. See infra, part III.B.5. 10 See Arent v. Shalala, 70 F.3d 610, 614-16 (D.C. Cir. 1995); see also Gary Lawson, Outcome, Procedure and Process: Agency Duties of Explanation for Legal Conclusions, 48 Rutgers L. Rev. 313 (1996). We recognize the difference between Chevron step-two review and the APA's arbitrary and capricious review is not always obvious. Indeed, the different standards of review overlap, because both require a reviewing court to decide whether the agency action is "manifestly contrary to the statute" (Chevron) or "otherwise not in accordance with law." (APA). See Arent, 70 F.3d at 615 & n.6. 11 As an initial matter, the FCC asks us to dismiss all challenges to its methodology for calculating high-cost support, claiming that such challenges are not ripe in light of the Joint Board's Second Recommended Decision. The Joint Board advised the agency to make substantial revisions in the high-cost support methodology, including the elimination of the 25%/75% division between federal and state contributions and the modification of the revenue benchmark used to calculate high-cost support. The FCC accepted these recommendations, and we dismiss challenges to those issues as moot. See infra parts III.A.1.b and c. But the FCC did not modify other portions of the Order, including its use of forward-looking cost models. See Seventh Report and Order ¶ 48. We agree with GTE that the mere existence of a Joint Board recommendation does not permit the FCC to block all judicial review of its high-cost methodology, especially after the agency has issued its order implementing these recommendations. The Supreme Court has consistently endorsed judicial review of final agency actions. "Although . . . the FCC regulation could properly be characterized as a statement only of intentions, the Court held that 'such regulations have the force of law before their sanctions are invoked as well as after. When, as here, they are promulgated by order of the Commission and the expected conformity to them causes injury cognizable by a court of equity, they are appropriately the subject of attack . . . .'" Abbott Lab. v. Gardner, 387 U.S. 136, 150 (1967) (quoting Columbia Broadcasting Sys. v. United States, 316 U.S. 407, 418-19 (1942)). Additionally, we consider four factors when evaluating a claim of lack of ripeness in the administrative context: (1) whether the issues are purely legal; (2) whether the issues are based on a final agency action; (3) whether the controversy has a direct and immediate impact on the plaintiff; and (4) whether the litigation will expedite, rather than delay or impede, effective enforcement by the agency. See Dresser Indus. v. United States, 596 F.2d 1231, 1235 (5th Cir. 1979). To find a case ripe, we require the party bringing the challenge (here, GTE) to establish all four factors in seeking judicial review. See Merchants Fast Motor Lines, Inc. v. Interstate Commerce Comm'n, 5 F.3d 911, 920 (5th Cir. 1993). The FCC does not claim that the issues presented are not purely legal, and we have already explained why, under Abbott Laboratories, the Order remains a final agency action. There is no indication that the petitioners are currently unaffected by the legal force of the Order. Finally, we agree with GTE that because the FCC has had ample time (three years) and opportunity to implement the Order, judicial guidance on the legality of the Order will not delay or impede the agency's ability to carry out its statutory duties. 12 GTE refers us to Justice Brandeis's dissent (joined by Justice Holmes) in Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm'n, 262 U.S. 276 (1922), criticizing use of "fair value" (another version of forward-looking cost models) in ratemaking. GTE notes that Justice Breyer has endorsed Justice Brandeis's criticisms. Even in his separate opinion in Iowa Utilities, however, Justice Breyer did not advocate that the Court prohibit the FCC from adopting forward-looking cost models. See Iowa Utilities, 119 S. Ct. at 752 (Breyer, J., concurring in part and dissenting in part) ("These examples do not show that the FCC's rules are themselves unreasonable"). Most importantly, the Brandeis criticism of "fair value" has never reflected the view of a majority of the Court, which on several occasions has declined to adopt Justice Brandeis's views on this question. See Federal Power Comm'n v. Texaco Inc., 417 U.S. 380 (1974); Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591 (1944). Instead, the Court consistently has refused to "designat[e] [] a single theory of ratemaking [that] would unnecessarily foreclose alternatives which could benefit both consumers and investors." Duquesne Light Co. v. Barasch, 488 U.S. 299, 316 (1989). In fact, the Court has explicitly sustained similar cost models not based on historical costs. See Mobil Oil Exploration & Producing Southeast Inc. v. United Distrib. Cos., 498 U.S. 211, 224-25 n.5 (1991) (indicating that similar non-historical based cost model was not arbitrary, capricious, or manifestly contrary to the statute at issue.). 13 See, e.g., West Tex. Util. Co. v. Burlington N.R.R., Docket No. 41191 (Surface Transp. Bd. May 3, 1996), aff'd sub nom. Burlington N.R.R. v. Surface Transp. Bd., 114 F.3d 206, 213 (D.C. Cir. 1997) (sustaining, as reasonable, agency application of "stand alone cost constraints" based on rates that a hypothetical carrier would have to charge to earn a reasonable return). 14 GTE claims that implementing the forward-looking cost methodology will force ILEC's to operate at a loss, and this constitutes an unconstitutional taking under Brooks-Scanlon. GTE's claim has no merit; it has not shown that a taking has occurred or that any taking will be permanent or would be so serious as to be considered "confiscatory." See Duquesne, 488 U.S. at 314. ("[A]n otherwise reasonable rate is not subject to constitutional attack by questioning the theoretical consistency of the method that produced it."). Unlike the situation in Brooks-Scanlon, the circumstance here is that the regulatory entity setting the rules, the FCC, is not requiring the ILEC's to remain open or to charge low rates, thereby forcing them to operate at a permanent loss. See Continental Airlines v. Dole, 784 F.2d 1245, 1251 (5th Cir. 1986) (distinguishing Brooks-Scanlon where agency required loss-making operation for a limited time only). 15 Vermont has filed a petition for review of the Seventh Report and Order in the District of Columbia Circuit. See No. 99-1243 (D.C. Cir.). Pursuant to 28 U.S.C. § 2349(a), it thereby has vested that court with exclusive jurisdiction to review the Seventh Report and Order. Unless the District of Columbia Circuit transfers the petition to this court pursuant to 28 U.S.C. § 2112(a), we lack jurisdiction to consider the order on its merits. We still retain jurisdiction to the extent that the new order changes or affects the Order that is the subject of this consolidated proceeding. As we explain below, the FCC's repudiation of its revenue benchmarks and the 25% allocation moot the petitioners' challenges for purposes of this appeal. Petitioners, however, are not precluded, by our dismissal in this proceeding, from filing appeals of the new cost-based benchmark and the new allocation methodology in another proceeding. 16 Mootness goes to the heart of our jurisdiction under Article III of the Constitution. Therefore, we must consider mootness even if the parties do not raise it, because "resolution of this question is essential if federal courts are to function within their constitutional spheres of authority." North Carolina v. Rice, 404 U.S. 244, 245 (1971). 17 Even if these conditions are met, there are at least three exceptions to the mootness doctrine. First, courts may assert jurisdiction if the official action being challenged is capable of "repetition, yet evading review." See Nader v. Volpe, 475 F.2d 916, 917 (D.C. Cir. 1973). Second, courts also have adjudicated otherwise moot issues if the defendant has voluntarily ceased the challenged activity to avoid judicial resolution and there is a reasonable possibility that the challenged conduct will resume. See Gulth v. Kangas, 951 F.2d 1504, 1507-08 (9th Cir. 1991) (refusing to hold voluntary cessation of prison library restrictions moot in light of long history of policy). Finally, courts have avoided mootness where the mooted issue still has collateral or future consequences. See Super Tire Eng'g Co. v. McCorckle, 416 U.S. 115, 122 (1974) (refusing to moot employer's challenge to state benefits for strikers even though strike had ended, because issue would affect employer's future relations with uni on). Only the first and second exceptions are arguably applicable to the FCC's new order, and we do not think either exception applies. The "repetition" exception will not apply unless there is a reasonable expectation that the same litigant will again be subjected to the same action. See DeFunis v. Odegaard, 416 U.S. 312, 315-17 (1974) (mooting student's lawsuit because he will graduate regardless of outcome of litigation). The second exception requires a showing that the challenged conduct will resume. There is little basis for suggesting that the FCC, after a long and torturous process involving a recommendation from the Joint Board and months of deliberation, will reverse itself on the question of revenue benchmarks. 18 Reconsideration of agency actions by the implementing agency can moot issues otherwise subject to judicial review because the reviewing court can no longer grant effective relief. See, e.g., Center for Science in the Pub. Interest v. Regan, 727 F.2d 1161, 1164 (D.C. Cir. 1984) (holding that a change in position of Department of Treasury regarding labeling of alcoholic beverages mooted federal appeal); see also 15 James W. Moore, Moore's Federal Practice § 101.96, at 101-179 (3d ed. 1998) ("[A] parallel proceeding in another forum and [] resolution of that controversy in that forum will moot the issues presented in the federal action. . . . regardless of whether or not that parallel forum is an administrative proceeding."). 19 Accord Center for Science in the Pub. Interest, 727 F.2d at 1164 ("Most of the issues presented in these appeals are not necessarily pertinent to examination of the second [administrative action] and may well prove irrelevant in that context."). 20 Our conclusion regarding mootness does not conflict with Natural Resources Defense Council v. EPA, 489 F.2d 390 (5th Cir. 1974), in which we refused to moot a challenge to the EPA's approval of Georgia's Clean Air Act implementation plan despite the EPA's later decision to withdraw its approval. Because the EPA's reasons for withdrawing approval showed that it still fundamentally disagreed with the petitioners' interpretation of the Clean Air Act's requirements, we asserted jurisdiction. In this case, the FCC's new order not only alters, but explicitly repudiates, the reasoning behind its use of revenues in calculating the benchmark. All of the petitioners' challenges to the benchmark calculations focused on the unreliability or unfairness of such revenue-based calculations. By eliminating the use of revenues, the petitioners and the FCC no longer fundamentally disagree on the problems that revenues cause in calculating the benchmark for high-cost support. Thus, Natural Resources Defense Council does not conflict with the reasoning of Center for Science in the Public Interest, 727 F.2d at 1166, in which the court mooted a challenge after the Treasury had implemented a new, superseding regulation containing different reasoning and substantive provisions different from the challenged regulation. In both cases, the courts analyzed whether the intervening agency action represented a substantive shift in an agency's interpretation of its statutory duties. 21 Nine state commissions--from Texas, California, Florida, Iowa, Louisiana, New York, Nevada, Pennsylvania, and South Dakota--have presented a joint appeal, and we refer to them as "the states." 22 The state commissions of Kansas and Vermont filed a separate appeal. Although both Kansas and Vermont challenge the 25% allocation, only Vermont maintains its challenge to the FCC's transitional support rules for rural carriers. See infra part III.A.6.c.i. 23 See Seventh Report and Order § 3 ("We explicitly reconsider and repudiate any suggestion in the First Report and Order that federal support should be limited to 25 percent of the difference between the benchmark and the forward-looking cost estimates. . . ."). 24 Vermont invites us to review the Seventh Report and Order's interpretation of reasonable comparability in the context of that recent order's revised approach to allocating costs between the different states and between the state and federal funds. To the extent that Vermont's "reasonable comparability" arguments were based on a challenge to the 25% allocation, we dismiss its arguments as moot. To the extent its arguments focused on the alleged failure of the FCC to articulate a definition of "reasonable comparability," we would have to examine the merits of the Seventh Report and Order. As we explained, supra n. 16, we cannot review the merits of that order, because we lack jurisdiction over the merits of the new allocation methodology until it is transferred to this court by the District of Columbia Circuit. 25 "Beginning January 1, 1999, non-rural carriers shall no longer receive support pursuant to this [program]." 47 C.F.R. § 36.601(c). 26 This implementation date has now been delayed until January 1, 2000. See Seventh Report and Order ¶ 5. 27 Jurisdictional separations rules are part of a process whereby it "may be determined what portion of an asset is employed to produce or deliver interstate as opposed to intrastate service." Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 356 (1986). Section 410(c) requires the FCC to consult the Joint Board, but it does not "dictate how costs must be recovered . . . ." See National Ass'n of Regulatory Util. Comm'rs v. FCC, 737 F.2d 1095, 1112 n.19 (D.C. Cir. 1984). 28 The FCC did not arbitrarily and capriciously fail to explain the reason for its amendment of rule 36.601(c). It stated that the new universal service mechanism will replace the old high-cost fund subsidies and that the change will occur on January 1, 1999 (later extended to July 1, 1999 and then to January 1, 2000). The agency's general explanations of the effect of the new support mechanism provide enough of a reason to survive GTE's attack. 29 The subsection reads: A State commission shall upon its own motion or upon request designate a common carrier that meets the requirements of paragraph (1) as an eligible telecommunications carrier for a service area designated by the State commission. Upon request and consistent with the public interest, convenience, and necessity, the State commission may, in the case of an area served by a rural telephone company, and shall, in the case of all other areas, designate more than one common carrier as an eligible telecommunications carrier for a service area designated by a State commission, so long as each additional requesting carrier meets the requirements of paragraph (1). Before designating an additional eligible telecommunications carrier for an area served by a rural telephone company, the State commission shall find that the designation is in the public interest. 30 See MCI Telecomm. Corp. v. FCC, 765 F.2d 1186, 1191 (D.C. Cir. 1985) (holding that "shall" is "the language of command"). 31 To be sure, if a state commission imposed such onerous eligibility requirements that no otherwise eligible carrier could receive designation, that state commission would probably run afoul of § 214(e)(2)'s mandate to "designate" a carrier or "designate more than one carrier." 32 Additionally, §152(b) of Act instructs us to construe the Act to avoid giving the FCC jurisdiction over "charges, classifications, practices, services, facilities, or regulations for and in connection with intrastate communications services. . . ." 47 U.S.C. § 152(b). See Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 376 n.5 (1988) ("[Section] 152(b) not only imposes jurisdictional limits on the power of a federal agency, but also, by stating that nothing in the Act shall be construed to extend FCC jurisdiction to intrastate service, provides its own rule of statutory construction."); see also discussion of "no disconnect" rule, infra part III.A.3. 33 In order to promote competition, the FCC encourages states to adopt the existing study areas of ILECs as service areas for non-rural areas because it would create a significant barrier to entry. The FCC further encourages states to consider designating service areas that the ILECs have not traditionally served, this limiting the ILEC advantage over new entrants. Order ¶ 185. 34 We review the FCC's standing defense, like all constitutional questions, under a de novo standard of review. See 5 U.S.C. § 706 (stating that "a reviewing court shall decide all relevant questions of law [and] interpret constitutional and statutory provisions"). 35 47 C.F.R. § 54.401(b). 36 The Lifeline program refers to the FCC's efforts to expand telephone services to qualifying low-income subscribers. The agency defines Lifeline services to include single-party service, voice-grade access to the public switched telephone network, BTMF or its functional digital equivalent, access to directory assistance, and toll-limitation services. See Order ¶ 390. 37 "[N]othing in this subchapter shall be construed to apply or to give the Commission jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier . . . ." 47 U.S.C. § 152(b) (as amended). 38 See supra part III.A.1.a.i. 39 The SBC intervenors challenge a related FCC rule prohibiting the practice of requiring deposits from customers initiating service with toll-blocking for interstate service. Unfortunately for SBC, none of the petitioners on this issue (the states and Bell Atlantic) raised a challenge to this similar but separate rule in the FCC proceeding. Therefore, we cannot consider it on appeal. See United Gas Pipe Line Co. v. FERC, 824 F.2d 417, 437 (5th Cir. 1987). 40 Bell Atlantic argues that the FCC has waived this argument on appeal. We do not agree. The FCC's brief states that the "no disconnect" rule "does not purport to regulate intrastate service . . . but merely to prevent the disconnection of service (including interstate access service) to customers who have failed to pay toll charges." Though weak, this statement preserves the FCC's attempt to exceed its jurisdictional boundaries on the ground that it cannot regulate an interstate matter without also regulating an intrastate matter. 41 See, e.g., Public Util. Comm'n v. FCC, 886 F.2d 1325 (D.C. Cir. 1989); Illinois Bell Tel. Co. v. FCC, 883 F.2d 104 (D.C. Cir. 1989); National Ass'n of Regulatory Util. Comm'rs v. FCC, 880 F.2d 422 (D.C. Cir. 1989). 42 "The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act." 47 U.S.C. § 201(b). 43 Accord Louisiana PSC, 476 U.S. at 376 n.5 ("[Section] 152(b) not only imposes jurisdictional limits on the power of a federal agency, but also, by stating that nothing in the Act shall be construed to extend FCC jurisdiction to intrastate service, provides its own rule of statutory construction.") 44 See supra part III.A.3. 45 "A carrier that receives such support shall use that support only for the provision, maintenance, and upgrading of facilities and services for which the support is intended." 46 National Association of State Utility Consumer Advocates. 47 Intervenor American Cable Television Association challenges the FCC for failing to meet the requirements of the Regulatory Flexibility Act before promulgating the Order. None of the petitioners raises this argument, nor does the FCC respond to it, and therefore we do not consider it. See discussion of MCI's intervenor argument, infra part III.A.6.b. 48 U.S. Const., art. I, § 8, cl. 1 ("The Congress shall have Power to lay and collect Taxes. . . ."). 49 See Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) (enacting S. 652). 50 U.S. Const., art. I, § 7, cl. 1 ("All Bills for Raising Revenue shall originate in the House of Representatives.") 51 The Taxing Clause analysis focuses on whether the assessment is a tax or a fee. This question is usually resolved based on whether the revenues are used to primarily defray the expenses of regulating the act. See National Cable Television Ass'n v. United States, 415 U.S. 336, 340 (1974). If it is a tax, then courts will ask whether it has been properly delegated. Id. On the other hand, the Origination Clause analysis asks whether (1) the revenues generated from the assessment are for general revenues or for a particular program and (2) there is a connection between the payors and the beneficiaries of the program. See Munoz-Flores, 495 U.S. at 397. See infra part III.B.1.c. n.83. 52 Generally, we do not consider arguments raised for the first time in a reply brief. See Fed. R. App. P. 28(c). Even if Celpage's Taxing Clause argument were properly before us, we find no basis for reversal. As applied to paging carriers, the universal service contribution qualifies as a fee because it is a payment in support of a service (managing and regulating the public telecommunications network) that confers special benefits on the payees. See National Cable, 415 U.S. at 340. Cf. Rural Tele. Coalition v. FCC, 838 F.2d 1307, 1314 (D.C. Cir. 1988) (upholding universal service contributions as a fee supporting allocations between interstate and intrastate jurisdictions). 53 The Supreme Court has squarely held that Origination Clause challenges are subject to judicial review and do not fall under the political question doctrine. "A law passed in violation of the Origination Clause would thus be no more immune from judicial scrutiny because it was passed by both Houses and signed by the President than would a law passed in violation of the First Amendment." Munoz-Flores, 495 U.S. at 397. 54 See discussion of § 254(h) support for internet services, infra part III.B.1. Unlike the circumstance in that case, the situation here is that of a telecommunications service provider's (a paging carrier's) being required to support the maintenance of a large telecommunications network. 55 See § 254(d) ("Every telecommunications carrier that provides interstate telecommunications services shall contribute . . . to the . . . mechanisms established by the Commission to preserve and advance universal service."); § 254(f) ("Every telecommunications carrier that provides intrastate telecommunications services shall contribute . . . ."). 56 The Munoz-Flores Court does not discuss in great detail the importance, in Origination Clause analysis, of some kind of relationship between the payors and the beneficiaries. Still, it makes sense that the Court would insist on some link, because an assessment on one group for the benefit of a completely unrelated group is how courts have distinguished taxes raised for general federal outlays from fees raised for specific programs. Otherwise, Congress could always avoid the Origination Clause requirement because, in theory, all revenue is raised to fund some "particular program." Thus, courts must establish some relationship between the payors and the beneficiaries to avoid the strictures of the Origination Clause. 57 See Reid, 979 F.2d at 1087 (5th Cir. 1992) (stating that a "decision of a governmental body does not violate equal protection guarantees if there is any basis for the action that bears a debatably rational relationship to a conceivable legitimate governmental end"). 58 See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 193 (1985). 59 Even if we considered Celpage's takings claim, it would fail to demonstrate how its claim comports with the three factors the Supreme Court has established to analyze a regulatory takings claim: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. See Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225 (1986). In particular, Celpage has failed to offer reasonably specific predictions of the size and scale of this taking, thereby failing to show the extent to which the regulation has interfered with its distinct investment-backed expectations. 60 Celpage also challenges the FCC's ruling for violating its own principle of "competitive neutrality." Because this term has been developed by the FCC through regulation rather than through interpretation of the statute, we should give the agency broad deference in applying this principle, and we can reverse only if we find the FCC's actions "arbitrary, capricious or manifestly contrary to the statute." Chevron, 467 U.S. at 844. The FCC's decision to require paging operators to contribute to the support of a network through which their business operates is not so irrational or arbitrary as to merit reversal. 61 See Pub. Citizen Health Research v. Commissioner, Food & Drug Admin., 740 F.2d 21 (D.C. Cir. 1984) (refusing to exercise judicial review over tentative agency actions absent excessive delay or extraordinary recalcitrance). 62 On October 26, 1998, the FCC released an order and a further notice of proposed rulemaking on the question of how to assess wireless carriers' revenues. The agency made a tentative decision to provide wireless carriers with interim guidelines for how to approximate their percentage of interstate wireless revenues. Additionally, the agency sought comment on various proposals for a final guideline on such calculations and comment on the relationship of wireless communications providers to universal service. This order further supports the FCC's position that it has not yet made a final decision on how to handle these issues. 63 See Mississippi Poultry Ass'n v. Madigan, 31 F.3d 293, 304 (5th Cir. 1994) (en banc) ("[A] statute should be interpreted so as not to render one part inoperative."). 64 A state commission could require a universal service contribution based on end-user revenues but leave the carrier free to set its rates as it pleases while not blocking new carriers from entering the market. On the other hand, a state commission would be regulating "rates and entry" if it required the carriers to lower rates for one group of customers as part of an implicit subsidy. 65 See also Sprint Spectrum, L.P. v. State Corp. Comm'n, 966 F. Supp. 1043 (D. Kan. 1997). 66 Even if the CMRS providers are right that the plain language does not unambiguously support the FCC's reading, we would defer to the FCC's reasonable interpretation under Chevron step-two. Accord Cellular Telecommunications, 168 F.3d at 1336 ("The bottom line is that Cellular has not demonstrated that its interpretation of § 332(c)(3)(A) is the only permissible one . . . ."). 67 According to one study, interstate revenues accounted for only 5.6% of total revenues for cellular and personal communications service carriers and 24% of total revenues for paging and other mobile service carriers. See Fourth Reconsideration Order ¶ 303. 68 47 U.S.C. § 405(a). 69 "The filing of a petition for reconsideration shall not be a condition precedent to judicial review of any such order, decision, report, or action, except where the party seeking such review (1) was not a party to the proceedings resulting in such order, decision, report, or action, or (2) relies on questions of fact or law upon which the Commission, or designated authority within the Commission, has been afforded no opportunity to pass." 47 U.S.C. § 405(a). 70 See generally Comments of COMSAT Corp., CC Docket No. 96-45 (filed Dec. 19, 1996); Comments of COMSAT Corp., CC Docket No. 96-45 (filed April 12, 1996). 71 See Time Warner Entertainment Co., L.P. v. FCC, 144 F.3d 75, 80 (D.C. Cir. 1998) ("So long as the issue is necessarily implicated by the argument made to the Commission, section 405 does not bar our review."). 72 See National Rural Telecomm. Ass'n v. FCC, 988 F.2d 174, 181 (D.C. Cir. 1993). 73 COMSAT estimates that the application of the FCC's interpretation would require it to contribute more in universal service fees ($5 million) than it would generate in interstate revenues ($3.8 million). 74 COMSAT also points out that much of the interstate service it provides is at the request of the government, to ensure service to isolated locations such as Guam and American Samoa. 75 The FCC asks us to bar review of this question, arguing that GTE and SBC are collaterally estopped from litigating it because they did so during challenges to the Access Charge Order in the Eighth Circuit. See Southwestern Bell, 153 F.3d at 537. Before applying collateral estoppel, we must first decide whether (1) the issue under consideration is identical to that litigated in the prior action; (2) the issue was fully and vigorously litigated in the prior action; (3) the issue was necessary to support the judgment in the prior case; and (4) there is no special circumstance that would make it unfair to apply the doctrine. See Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir. 1998), cert. denied, 119 S. Ct. 1286 (1999). We agree with the petitioners that the challenge to the FCC's high-cost support timetable is not "identical," for collateral estoppel purposes, to the issue raised in that case. Although the petitioners challenge the coordination between implicit subsidies in the access charge system and those in the new support system, their challenge in this case involves a broader attack on the timing of the entire universal service high-cost support system rather than on just its interactions with the access charge system. The Eighth Circuit did not consider the contention that GTE brings before us: that the FCC violated § 254(a) by failing to implement an "explicit" and "sufficient" universal service support system within "fifteen months" of the 1996 Act's enactment. The Eighth Circuit relied on the fact that the deadline for adopting rules on universal service came after the date for adopting rules on opening the market to local competition. See Southwestern Bell, 153 F.3d at 537. Therefore, there was no need for that court to decide whether § 254(a) requires full implementation within "fifteen months" of the enactment, and GTE is not collaterally estopped for pursuing its appeal of § 254(a) in this court. See Winters, 149 F.3d at 391 n.3 ("[U]nless prior issue sought to be precluded from relitigation was a 'critical or necessary part' integral to the prior judgment, collateral estoppel may not apply."). 76 GTE also claims that the FCC's actions violate the "predictable" and "nondiscriminatory" requirements of § 254(b). We see no merit to this contention and focus instead on GTE's best statutory argument, which relies on the use of the term "sufficient" in § 254(e). 77 Section 254(e) contemplates that universal support will be "explicit" and "sufficient" "[a]fter the date on which Commission regulations implementing this section [§ 254(e)] take effect." This language further supports the FCC's reading that Congress did not require implementation of the high-cost support program immediately after the 15-month deadline. 78 The Supreme Court did not issue its final word on these sections until January 25, 1999. See Iowa Utilities, 119 S. Ct. 721. In the meantime, many potential entrants were stymied in the arbitration process and by the uncertainty over the FCC's jurisdiction to implement its local competition order. Therefore, it is not surprising that the agency did not expect an onslaught of local competition during the interim period. 79 See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988). 80 MCI claims that the FCC is trying to evade review of this question through procedural maneuvering. When BellSouth, in its Eighth Circuit challenge to the Access Charge Order, raised the issue of the FCC's failure to remove all implicit subsidies, the agency argued that this question should be addressed in this court in challenges to the Universal Service Order. Now that MCI has raised that same issue, MCI argues that the agency should not be allowed to dodge review again on procedural grounds. Unfortunately for MCI, it was not any manipulation of procedural rules by the FCC that prevented MCI from properly raising this issue on appeal. There was no legal reason that prevented MCI from filing a brief as a petitioner rather than as an intervenor. Thus, the FCC's procedural moves are irrelevant for purposes of deciding whether MCI may properly intervene. The only question, then, is whether MCI's challenge to the Order for failing to reduce access charges immediately is the same as GTE's challenge to the Order for failing to implement explicit subsidies immediately. We see no such resemblance. 81 See Order ¶ 273 (stating that "non-rural carriers" will come under the new forward-looking cost methodology). 82 Kansas initially joined Vermont in this challenge but indicates, in its reply brief, that it now withdraws from this portion of the appeal. 83 Kansas initially joined Vermont in this challenge, but has indicated in its reply brief that it now withdraws from this portion of the appeal. 84 Vermont argues that the 200,000-loop distinction will become permanent through its incorporation into the "hold harmless" rule articulated in the Seventh Report and Order. As we have discussed, supra, we do not have jurisdiction to consider the merits of that new Order except in the way that it affects our review of the Order. The "hold harmless" principle was introduced in the Seventh Report and Order and remains outside the scope of this proceeding. 85 As a threshold matter, GTE challenges the timing of the proposal, because it would require support for schools, libraries, and health care providers before the new system for explicit subsidies has been implemented. For the same reasons we have discussed, see supra part III.A.6.1., we extend the FCC greater discretion in deciding what will be "sufficient" during the transition period, especially when there is little reason to believe that the old subsidy system will break down during that period. 86 Judge Garza does not join our analysis of the constitutional issues raised by the FCC's decision to provide discounts on internet services for schools and libraries, set forth in note 97, infra. He would not address these issues, because the parties did not raise them on appeal. See Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (refusing to consider a constitutional issue of first impression "where counsel has made no attempt to address the issue" and "where, as here, important questions of far-reaching significance are involved"). But see United States Nat'l Bank v. Independent Ins. Agents of Am., 508 U.S. 439, 446 (1993) (approving lower court's consideration of legal claim not argued by either party as part of courts' "independent power to identify and apply the proper construction of governing law")(internal quotations omitted); United States v. Moore, 110 F.3d 99, 101 (D.C. Cir. 1997) (en banc) (Silberman, J., dissenting) (conceding that the "rigor and integrity of Carducci was severel y impaired by the unanimous decision of the Supreme Court" in IndependentInsurance Agents). 87 The FCC has recognized that internet access or internal connection services are "information services" that cannot be equated with "telecommunications services." See Order ¶ 439 n.1145. 88 Calling "internal connections" a good and not a service, GTE separately attacks the "internal connections" requirement. The FCC argues that courts have recognized internal connections as services, see NARUC v. FCC, 880 F.2d 422, 430 (D.C. Cir. 1989), and that the legislative history's emphasis on connections to "classrooms" makes such a requirement reasonable. Given that the maintenance and installation of regular telephone lines also is characterized as a "service," we reject GTE's attempt to distinguish "internal connections." 89 See United States v. Wallington, 889 F.2d 573, 577 (5th Cir. 1989) (stating that the "section heading enacted by Congress in conjunction with statutory text [is considered] to 'come up with the statute's clear and total meaning.'" (citation omitted)). 90 H.R. Conf. Rep. 104-458, at 132 (1996) (emphasis added), reprinted in 1996 U.S.C.C.A.N. 144. 91 H.R. Conf. Rep. 104-458, at 133 (1996) (emphasis added), reprinted in 1996 U.S.C.C.A.N. 144. 92 Id. 93 We also agree with GTE that the FCC is asserting unlimited authority to prescribe support for whatever it wishes. At oral argument, counsel for the FCC could not point out how its interpretation could be limited even to internet access services. For instance, the agency could not explain why satellite television services or even janitorial services would not fit within its understanding of "additional services." In contrast, the plain language of § 254 provides an easily recognizable limit on FCC authority by confining § 254(h) support to telecommunications services. The superiority of GTE's reading, however, does not necessarily make Congress's intent unambiguous. 94 H.R. Conf. Rep. 104-458, at 132 (1996), reprinted in 1996 U.S.C.C.A.N. 144. 95 Before we defer to the FCC's interpretation of an ambiguously worded statute under the deferential Chevron step-two standard of review, we consider whether the agency's approach raises constitutional problems that should lead us to construe the statute in the manner urged by GTE. "[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." Jones v. United States, 119 S. Ct. 1215, 1222 (1999) (internal citations omitted). This rule "has for so long been applied by this Court that it is beyond debate." DeBartolo, 485 U.S. at 574-75. It is also of such importance that a court will reject an agency interpretation of a statute that would ordinarily receive deference under Chevron step-two if it believes the agency's reading raises serious constitutional doubts. Id. (construing statute narrowly to avoid First Amendment problem). We have identified two ways in which the agency's interpretation could raise constitutional concerns that might lead us to construe the statute more narrowly. First, the FCC's application of the universal service fund for non-telecommunications services could constitute an improperly delegated tax. Second, its interpretation of the reach of § 254(h)(1)(B) could have transformed the Act into a "bil[l] for raising revenue" in violation of the Origination Clause. Though it is a close question, we conclude that the FCC's interpretation does not raise sufficiently serious constitutional doubts to override our normal Chevron step-two deference. While the relationship between internet services and the public telecommunications network is more attenuated than is that of paging services, see supra part III.A.5.a, we are not convinced that even this attenuated relationship raises serious doubts under Munoz-Flores. For similar reasons, this attenuated relationship does not raise serious doubts as to whether the FCC's interpretation makes the assessment an improperly delegated tax. See Rural Tel. Coalition v. FCC, 838 F.2d 1307, 1314 (D.C. Cir. 1988) (rejecting unconstitutional tax challenge to universal service support allocation finding). 96 "The expression of one thing implies the exclusion of another." "Hence, a statute that mandates a thing to be done in a given manner . . . normally implies that it shall not be done in any other manner . . . ." 73 Am. Jur. 2d Statutes § 211 (1995). 97 Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995). 98 The District of Columbia Circuit has upheld FCC actions under § 154(i) that require payments from parties even without express statutory authorization. See Mobile Communications Corp. of Am. v. FCC, 77 F.3d 1399 (D.C. Cir. 1996); New England Tel. & Tel. Co. v. FCC, 826 F.2d 1101 (D.C. Cir. 1987). 99 See H. R. Conf. Rep. 104-458, at 133 (emphasis added), reprinted at 1996 U.S.C.C.A.N. 144. 100 The FCC further concluded that its decision will ensure that schools and libraries can obtain discounted "state-of-the-art telecommunications technologies as those technologies become available." Order ¶ 433. 101 The FCC's decision to prohibit carriers from recovering through intrastate rates does not save it from § 2(b) analysis. There is no question that the amount of a carrier's universal service contributions will increase with the inclusion of intrastate revenues. This cost, even if recovered only through interstate revenues, still constitutes a "charge in connection with intrastate service" under § 2(b). If the point of § 2(b) was to protect state authority over intrastate service, allowing the FCC to assess contributions based on intrastate revenues could certainly affect carriers' business decisions on how much intrastate service to provide or what kind it can afford to provide. This federal influence over intrastate services is precisely the type of intervention that § 2(b) is designed to prevent. 102 In its most recent action, the FCC reaffirmed its jurisdictional authority to require carriers to contribute based on both intrastate and interstate revenues. See Seventh Report and Order ¶¶ 87-90. In fact, the FCC appears to be awaiting a decision by this court before taking further action: "Accordingly, pending further resolution of this matter by the Fifth Circuit, the assessment base and recovery base for contributions to the high-cost and low-income universal service support mechanism that we adopted in the First Report and Order shall remain in effect." Seventh Report and Order ¶ 90. This invitation to judicial action further undercuts the FCC's ripeness defense. 103 MCI has filed a supplemental brief rejecting this characterization. It relies on MCI Telecomm. Corp. v. Virginia State Corp. Comm'n, 11 F. Supp. 2d 669 (E.D. Va. 1998), vacated as moot, 1999 U.S. App. LEXIS 8749 (4th Cir. May 10, 1999) (unpublished), in which the court granted MCI's motion for injunctive relief from a Virginia state commission's order and ruling that MCI's disputed charges were not charges for intrastate calls. MCI also points to the FCC's recent order rejecting Virginia's administrative petition of the same issue. See Virginia State Corp. Comm'n v. MCI Telecomm. Corp., No. E-99-01.FCC 99-42 (released Mar. 22, 1999). This ruling actually supports the states' ripeness argument, however, because the district court's final order on this question, along with the FCC's recent order, further demonstrates the propriety of judicial review of this question. 104 Having concluded that the FCC has no jurisdiction over intrastate rates for universal service purposes, we do not reach CBT's final argument challenging the agency's requirement that carriers recover their contributions solely from interstate revenues.

United States Court of Appeals Fifth Circuit F I L E D December 30, 2003 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-10592 Summary Calendar SAMMY K. SHIPMAN, Plaintiff-Appellant, versus JOHN DOE, No. 001 San Angelo Police Department; PAUL KINYON, Pharmacist HEB; GERALD A. FOHN, District Attorney Tom Green Co. Texas; FRANK D. BROWN, Assistant District Attorney Tom Green Co. Texas; WILLIAM MOORE, Attorney at Law; CURT F. STEIB, Senior District Judge Tom Green County Texas; TX TOM GREEN COUNTY; SHERI WOODFIN, District Clerk Tom Green County Texas, Defendants- Appellees. ---------------------------------------------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 6:03-CV-00001 ------------------------------------------------------------ Before SMITH, DeMOSS AND STEWART, Circuit Judges. PER CURIAM:* Sammy K. Shipman, Texas prisoner #583548, appeals the district court’s dismissal with prejudice of his 42 U.S.C. § 1983 complaint as frivolous. Shipman argues his arrest was * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. unconstitutional because a pharmacist cannot dispense medication for the purpose of a police investigation; the prosecutors, his defense counsel, and the clerk of court are not absolutely immune from suit for monetary damages; the trial judge is not absolutely immune from suit for declaratory and injunctive relief; the district court erred in denying his motion to amend his complaint; the district court erred in finding his claims were barred by the statute of limitations; and the county is liable for the acts of its officials who conspired to violate his constitutional rights. He has abandoned his claim that the county is liable for keeping an “open file.” See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). We review the district court’s dismissal of Shipman’s complaint as frivolous for an abuse of discretion. Gonzales v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998). The dismissal of Shipman’s claims for monetary, declaratory, and injunctive relief, based upon the defendants’ alleged conspiracy to unconstitutionally arrest, convict, and imprison him, was not an abuse of discretion. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Brandley v. Keeshan, 64 F.3d 196, 199 (5th Cir. 1995); Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973); see also Bounds v. Smith, 430 U.S. 817, 821 (1977). Moreover, as the claims sought to be raised in Shipman’s amended complaint were frivolous, the failure of the district court to consider those claims was harmless. See FED. R. CIV. P. 15(a); FED. R. CIV. P. 61; Heck, 512 at 486-87; Gonzales, 157 F.3d at 1019; TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a). Shipman’s appeal is without arguable merit and is DISMISSED as FRIVOLOUS. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The district court’s dismissal of Shipman’s complaint under 28 U.S.C. § 1915 and this court’s dismissal of his appeal as frivolous count as strikes under 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d 383, 388 -2- (5th Cir. 1996). We caution Shipman that if he accumulates three “strikes” under 28 U.S.C. § 1915(g) he will not be able to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Shipman’s motion to expedite his appeal is DENIED. APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED; MOTION DENIED. -3- 

J-S51018-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. BRUCE KENNETH WOODS, JR. Appellant No. 1369 EDA 2014 Appeal from the Judgment of Sentence January 6, 2014 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003123-2011 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.* MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 02, 2015 Bruce Kenneth Woods, Jr., appeals from his judgment of sentence, imposed in the Court of Common Pleas of Montgomery County, after entering an open guilty plea to third-degree murder (F-1),1 robbery (F-1),2 solicitation to commit perjury (F-3),3 and related offenses. Woods was sentenced to an aggregate term of 25-50 years’ imprisonment. After careful review, we affirm on the basis of the opinion authored by the Honorable Thomas C. Branca. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 2502(c). 2 18 Pa.C.S. § 3701(a). 3 18 Pa.C.S. § 4902; 18 Pa.C.S. § 906. J-S51018-15 In October 2010, on the streets of Norristown, Woods gunned down the victim by firing multiple shots from a semiautomatic 9mm handgun. Woods had agreed to murder the victim in exchange for $10,000 from his co-conspirator, Tyuan Simon, who told Woods that the victim had “ratted him out” to police. Just moments before the “murder-for-hire,” Woods assaulted a female victim, stealing her gun, which he then used to shoot the victim. Woods signed a proffer with the Commonwealth, in which he provided a detailed statement of his involvement in the victim’s murder in exchange for the Commonwealth charging him with third-degree murder instead of seeking the death penalty.4 Woods entered an open guilty plea to various charges and was sentenced to the following consecutive terms of imprisonment: 17-34 years for third-degree murder; 6-12 years for robbery; and 2-4 years for solicitation (perjury).5 Woods filed post-sentence motions that were denied. This timely appeal followed. On appeal, Woods presents the following issues for our consideration: ____________________________________________ 4 The Commonwealth initially charged Woods with capital murder. See 18 Pa.C.S. § 2502(a). 5 Woods also pled guilty to conspiracy to commit third-degree murder, robbery (decedent), person not to possess a firearm, and simple assault. Those sentences were ordered to run concurrent to the above-stated charges. -2- J-S51018-15 (1) Is a sentencing scheme of consecutive standard range sentences an abuse of discretion where said scheme is based on facts not of record? (2) Did the sentencing court commit an abuse of discretion in failing to impose a mitigated sentencing scheme in light of Appellant’s substantial cooperation with the Commonwealth, his receipt of physical/verbal threats, and his horrendous life story? Based on the multiple crimes with which he was charged, Woods faced a maximum aggregate sentence of 77-154 years’ imprisonment. Moreover, if Woods chose to proceed to trial, imposition of the death penalty was a possibility. Although the court ran Woods’ murder, robbery and solicitation (perjury) sentences consecutively, each of these sentences was in the standard range of the guidelines. Additionally, the court chose to impose concurrent sentences on the remaining five charges.6 After carefully reviewing the parties’ briefs, the record on appeal, and relevant case law, we affirm Woods’ judgment of sentence based upon the well-written and thorough opinion authored by Judge Branca. We instruct the parties to attach a copy of Judge Branca’s decision in the event of further proceedings in the matter.7 ____________________________________________ 6 Woods simultaneously entered an open guilty plea to possession with intent to deliver on a separate bill. 7 While Woods’ claims challenging the court’s imposition of consecutive, non- mitigated range sentences may not present a substantial question in some cases, we find that his overarching claim that the court used improper facts in imposing his sentence does invoke our appellate review of his claims. See Commonwealth v. Marts, 889 A.2d 608 (Pa. Super. 2005) (bald claim of excessiveness of sentence due to consecutive nature of sentence will not (Footnote Continued Next Page) -3- J-S51018-15 Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/2/2015 _______________________ (Footnote Continued) raise substantial question), and Commonwealth v. Johnson, 961 A.2d 877 (Pa. Super. 2008) (claim that sentencing court did not consider adequately certain mitigating factors does not raise substantial question), but see Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (defendant may raise substantial question where he receives consecutive sentences within guideline ranges if case involves circumstances where applying guidelines would be clearly unreasonable and result in excessive sentence); Commonwealth v. Wright, 600 A.2d 1289 (Pa. Super. 2000) (where defendant contended sentencing court failed to consider special circumstances of case and that imposition of standard-range sentence indicates court's failure to consider mitigating factors, substantial question raised). -4- Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM Circulated 09/16/2015 03:56 PM 

Matter of Alonzo R. (Stephanie R.) (2017 NY Slip Op 04909) Matter of Alonzo R. (Stephanie R.) 2017 NY Slip Op 04909 Decided on June 15, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 15, 2017 Tom, J.P., Renwick, Manzanet-Daniels, Kapnick, JJ. 4283A 4283 [*1] In re Alonzo R., A Child Under the Age of Eighteen Years, etc., andStephanie R., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent. Law Office Of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Seymour W. James, Jr. of counsel), attorney for the child. Order of disposition, Family Court, Bronx County (Sarah P. Cooper, J.), entered on or about April 8, 2016, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about April 8, 2016, which found that respondent mother had neglected the subject child, unanimously affirmed, without costs. Appeal from the fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition. A preponderance of the evidence shows that the mother neglected the child by permitting the child to live in the home of a person she had never met and whose full name and address were unknown to her; failing to provide that person with documentation necessary for the child to receive dental treatment; failing to provide the child with financial support; and failing to act after learning that the child was homeless for several months (see Family Ct Act §§ 1012[f][i][A], [B]; 1046[b][i]; Matter of Kimberly F. [Maria F.], 146 AD3d 562 [1st Dept 2017], lv denied __ NY3d __, 2017 NY Slip Op 68601 [2017]; Matter of Joelle T. [Laconia W.], 140 AD3d 513, 513-514 [1st Dept 2016]). The mother's conduct and the testimony of the caseworkers demonstrated her clear intention to abdicate her parental responsibilities, despite her claims of illness and poverty (see Kimberly F., 146 AD3d at 563; Joelle T., 140 AD3d at 514). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JUNE 15, 2017 CLERK

74 F.3d 1253 U.S.v.Griffin* NO. 93-6347 United States Court of Appeals,Eleventh Circuit. Jan 09, 1996 Appeal From: S.D.Ala., No. 92-00220-CR-AH 1 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

428 F.2d 369 CENTRAL DISTRIBUTORS, INC., Plaintiff-Appellee,v.M.E.T., INC., Defendant, and Joseph L. Nellis, Defendant-Appellant. No. 28598. United States Court of Appeals, Fifth Circuit. June 22, 1970. Harris Buchbinder, Miami Beach, Fla., Bernard Marcus, New Orleans, La., Stanley J. Krieger, Washington, D.C., for defendant-appellant. Carl K. Hoffman, Miami, Fla., for plaintiff-appellee. Before BELL, COLEMAN and AINSWORTH, Circuit Judges. AINSWORTH, Circuit Judge: 1 Central Distributors Inc. (Central) commenced this Florida-based diversity action for breach of a license agreement against M.E.T., Inc. and Joseph L. Nellis in early 1965. The case in different circumstances has already been before this Court twice, Central Distributors, Inc. v. M.E.T., Inc., 5 Cir., 1968, 403 F.2d 943; Nellis v. Fulton, 5 Cir., 1969 (No. 27917, June 3) (petition for writ of mandamus), and the merits of the dispute have at times been overlooked in a continuing quarrel about procedure. M.E.T., Inc. is no longer a party. Now, after five years, the issue of the measure of Nellis's liability to Central is presented to this Court. The District Judge awarded Central $52,426.85, plus costs, and Nellis appeals. 2 Under the license agreement at issue, Central leased space and established a hardware store in a Hialeah, Florida, shopping center developed by M.E.T., Inc. The agreement provided that the initial lease would extend from November 15, 1963, through November 30, 1966, and reserved to Central an option to terminate the agreement at the end of the first year's operation if the hardware store's gross retail sales amounted to less than $350,000. In the event that Central elected to terminate on this basis, the agreement also provided that M.E.T., Inc. would purchase the store's fixtures and stock-in-trade. Nellis executed a guaranty insuring M.E.T., Inc.'s performance regarding the purchases of fixtures and stock-in-trade from Central. 3 The store's total gross retail sales for the first year's operation amounted to less than $350,000 and Central elected to terminate the agreement. After M.E.T., Inc. and Nellis failed to comply with Central's demand that they purchase the fixtures and stock-in-trade, Central conducted a going-out-of-business sale beginning in January 1965. Central also filed this action for damages in the District Court. Its complaint alleged that M.E.T., Inc. had refused to make the promised purchases and that Nellis had ignored demands made upon him as M.E.T., Inc.'s guarantor. When Central completed the presentation of its case, the District Court granted M.E.T., Inc.'s motion for an order of dismissal under Fed.R.Civ.P. 41(b) on the ground that Central had failed to introduce any competent evidence to sustain its burden of proving damages. This Court reversed, stating: 4 'In the case before us, Central sought to introduce certain records in order to prove damages. The exclusion of these records from evidence on the basis that they were not listed as exhibits in the pre-trial stipulation was critical and decisive. This ruling, if allowed to stand, effectively bars a meaningful examination of the only real issues present.' 5 Central Distributors, Inc. v. M.E.T., Inc., 5 Cir., 1968, 403 F.2d 943, 946. 6 While this case proceeded at its snail's pace toward this Court for the first time, as the parties squabbled over procedure, Central retained possession of the fixtures. Unable to sell the fixtures at a price satisfactory to it, Central first stored them in a warehouse in Miami, Florida. Then, in the spring of 1966, the fixtures were shipped to a store operated by Central in Providence, Rhode Island. Central erected and used the fixtures in that store until December 1967, when it went out of business at the Providence location. On May 1, 1968, Central sold the fixtures to Mall Furniture Company, which took over the operation of the Providence store and used the fixtures in place. 7 After we remanded the case to the District Court, pettifoggery continued, as court time and lawyer time were devoted to Nellis's various motions for continuances, change of venue, and like matters. The argument was complicated by the apparent inability of Nellis, himself a lawyer, to retain counsel to his liking who would be prepared for trial. Finally, in June 1969, a trial to the court on the merits of the parties' dispute began. 8 The District Court determined that Nellis was liable to Central in the amount of $52,426.85. It computed Central's damages as follows: (1) for the damages resulting from the failure to purchase the fixtures, Central was awarded $13,911.95; (2) for the failure to purchase the inventory, Central was awarded $20,935.84; (3) for other damages (closing expenses) caused by the breach of the license agreement, Central was awarded $6,492.90; (4) to the principal amount of damages, $41,340.69, the Court added interest calculated at 6 per cent from the date of breach, December 26, 1964, or $11,086.16. 9 We may not set aside the District Court's findings of fact unless these findings are clearly erroneous. Fed.R.Civ.P. 52(a); see, e.g., United States for Use and Benefit of Citizens National Bank of Orlando v. Stringfellow, 5 Cir., 1969, 414 F.2d 696; Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774. Having considered all the evidence in this case, we are not left with the definite, firm conviction that a mistake has been committed in connection with the awarding of damages to Central for its losses on the inventory and its closing expenses. Accordingly, we affirm the judgment of the District Court to the extent of these damages, $27,428.74, plus interest at 6 per cent from December 26, 1964, until paid. See United States v. United States Gypsum Co., 333 U.S. 364, 394-395, 68 S.Ct. 525, 541-542, 92 L.Ed. 746 (1948). With respect to the damages awarded for Central's loss on the fixtures, however, we conclude that the judgment of the District Court must be reversed. By its actions in connection with the fixtures after M.E.T., Inc. and Nellis had failed to purchase them, Central manifested its decision to retain the fixtures for its own use rather than to press for the vindication of any claim it might have had against M.E.T., Inc. or Nellis. The record shows clearly that Central's sale of the fixtures to Mall Furniture Company, after these fixtures had been used by Central for approximately two years in its Providence store, was not an attempt to mitigate the damages occasioned by the breach of the license agreement, but was instead the culmination of a course of action taken independently of, and inconsistent with, prosecution of the claim against Nellis. 10 We have carefully considered Nellis's other contentions on this appeal and conclude that they are without merit. Discussion of these contentions would serve only to add more words to a case already too filled with them. 11 The judgment is affirmed in part and reversed in part.

162 Ga. App. 183 (1982) 290 S.E.2d 137 MORROW v. THE STATE. 63208. Court of Appeals of Georgia. Decided April 6, 1982. Rehearing Denied April 22, 1982. Paul S. Weiner, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, H. Allen Moye, Paul Howard, Assistant District Attorneys, for appellee. CARLEY, Judge. Appellant was indicted, tried and convicted of incest. He appeals. 1. The trial court did not err, in the absence of a timely written request, in failing to charge that mere presence at the scene of the crime would not be sufficient to establish guilt. See Darden v. State, 171 Ga. 848, 862 (4) (157 SE 48) (1930); Burdett v. State, 159 Ga. App. 394 (1) (283 SE2d 622) (1981). *184 2. In related enumerations of error, it is urged that appellant's conviction cannot stand because the trial court erred in not ordering, on its own motion, a hearing on the question of appellant's competency to stand trial. "The issue of the accused's insanity at the time of the alleged crime is a question for the trial jury. The issue of the accused's competency to stand trial is a question for a special jury upon a special plea of insanity. Code Ann. § 27-1502. In either case, the question ultimately is whether the evidence supports the verdict. The issue of appellant's competency to stand trial was not submitted to a special jury because appellant's attorney did not file a special plea of insanity. Code Ann. § 27-1502. Absent a special plea of insanity there is no mandatory duty on the trial judge to impanel a special jury to determine that issue. However, the United States Supreme Court has held that the failure to observe procedures adequate to protect an accused's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Pate v. Robinson, 383 U. S. 375 (86 SC 836) (1966). This also is a question of evidence. As stated in Drope v. Missouri, 420 U. S. 162, 174 (95 SC 896) (1974), `. . . the dispute concerns the inferences that were to be drawn from the undisputed evidence and whether, in light of what was then known, the failure to make further inquiry into petitioner's competence to stand trial denied him a fair trial.'" Ricks v. State, 240 Ga. 853, 854-855 (242 SE2d 604) (1978). Thus, the issue of appellant's "mental competency" "does not involve any issue of insanity. [Cit.] . . . `Mental competence' relates only to the ability of the defendant, at the time of the trial, to intelligently participate in his trial ..." Echols v. State, 149 Ga. App. 620, 623 (255 SE2d 92) (1979). The issue " `is not, whether the defendant can distinguish between right and wrong, but is, whether he is capable at the time of the trial of understanding the nature and object of the proceedings going on against him and rightly comprehends his own condition in reference to such proceedings, and is capable of rendering his attorneys such assistance as a proper defense to the indictment preferred against him demands.'" Crawford v. State, 240 Ga. 321, 326 (240 SE2d 824) (1977). The application of the above stated legal principles to the instant case demonstrates no error in the trial court's failure to order, on its own motion, a hearing on appellant's competency. Our independent review of the transcript indicates nothing "suggesting incompetence which came to light during trial." Drope, 420 U. S. at 179, supra. The evidence at trial relied upon by appellant as demonstrating an "inference" of incompetency does "not approach the bizarre conduct of the accuseds in Pate and Drope, supra." Ricks, *185 240 Ga. at 855, supra. Appellant also relies upon the fact that the trial court, after hearing evidence during the sentencing phase of the case, observed that appellant was "at least limitedly sick" and made "psychiatric treatment while incarcerated and upon release" a special condition of the sentence imposed. The statement by the trial court is not "evidence" of appellant's incompetency. The issue on appeal is not whether appellant was, for purposes of sentencing, "sick" in the opinion of the trial court but whether, for purposes of due process, he was "mentally incompetent" to stand trial. It is evident that the trial court in the instant case, having heard the evidence relevant to the question of appellant's guilt of incest and to the issue of the sentence that should be imposed therefor, made an observation which did not reflect on appellant's competency to stand trial. The trial court merely stated that appellant was "sick" and entered a sentence accordingly. Thus, from the record before us, it appears that the procedures followed in the instant case in no way resulted in a deprivation of appellant's due process right to a fair trial but in fact resulted in the imposition of a sentence ostensibly more appropriate for one who, though guilty of a crime, is "sick." The observation by the trial court in sentencing appellant and the "evidence" apparently evoking that statement simply do not demonstrate that "`the failure to make further inquiry into petitioner's competence to stand trial denied him a fair trial.' " Ricks, 240 Ga. at 855, supra. Accordingly, we find no error. Judgment affirmed. Quillian, C. J., and Shulman, P. J., concur.

469 U.S. 1166 105 S.Ct. 928 83 L.Ed.2d 939 Harold VINCENTv.LOUISIANA No. 83-6865 Supreme Court of the United States January 14, 1985 Rehearing Denied March 4, 1985. See 470 U.S. 1039, 105 S.Ct. 1414. On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit. The petition for writ of certiorari is denied. Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. 1 "There is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus, for it is in such proceedings that a person in custody charges that error, neglect, or evil purpose has resulted in his unlawful confinement and that he is deprived of his freedom contrary to law." Harris v. Nelson, 394 U.S. 286, 292, 89 S.Ct. 1082, 1087, 22 L.Ed.2d 281 (1969). Because the proceedings in this case have fallen intolerably short of fulfilling this duty, and because this Court must be vigilant in ensuring that lower courts do not improperly cut corners in administering the Great Writ, I respectfully dissent from the Court's denial of certiorari. 2 * The petitioner Harold Vincent was convicted in 1974 of armed robbery and second-degree murder by a jury in Vernon Parish, Louisiana. Vincent's trial had been delayed for over two years while he underwent evaluation and treatment for schizophrenia. This mental illness was so severe that psychiatrists at the Louisiana State Penitentiary General Hospital had certified that Vincent did not meet the constitutional standard of triability in that he could neither "realiz[e] the nature of the charges against him" nor properly "assist his attorney." 1 Record 17, 18. After intensive treatment with psychotropic drugs, particularly Thorazine, these psychiatrists notified the trial court that, so long as Vincent remained on his regulated dosage, he would have the mental capacity to proceed with trial. Id., at 18. They emphasized at Vincent's pretrial sanity hearing that Vincent was dependent on Thorazine and that it was "almost a sure thing" that he would revert to episodes of psychosis if he stopped taking the medication. Id., at 64; see also id., at 20-23. 3 According to Vincent's subsequent habeas petition, which Vincent prepared with the assistance of an inmate paralegal: 4 "On July 6, 1974, petitioner was transferred from the 5 Louisiana State Penitentiary to Vernon Parish without any of his medication. Petitioner immediately inquired with Vernon Parish officials about his medication, but no one seemed to know anything about it. Consequently, on the morning trial was scheduled to commence, petitioner intentionally cut his leg to get to the hospital to see someone about receiving some Thorozine [sic]. When he appeared in court with his pants leg rolled up and a rag wrapped around his lower leg, petitioner's mother and sisters became upset and rushed to talk with him. After petitioner told them the reason he cut his leg, they talked with petitioner's trial attorneys, William E. Tilley and Chris Smith, III, concerning the likelihood of petitioner receiving some Thorozine [sic]. Petitioner's attorneys brought the matter to the attention of the trial court, and after a few preliminary motions were argued, Judge Terrell ordered Vernon Parish officials to bring petitioner to the hospital. 6 "Petitioner was taken to the Leesville General Hospital where his leg was bandaged and he was given a shot. Petitioner explained his condition to the doctor that treated him, but was informed that it was against hospital regulations to prescribe Thorozine [sic] to him. Petitioner was returned to the courthouse for continuation of the proceedings against him. Throughout his trial . . . petitioner was without his prescribed medication, Thorozine [sic]. He was convicted as charged and . . . sentenced to a term of life imprisonment." Id., at 9-10. 7 Vincent claimed that, as a result of this alleged deprivation of Thorazine, he was "mentally incompetent" during the trial in that he was unable "to maintain his ability to consult with his attorney and understand the proceedings against him." Id., at 10. 8 After Vincent filed his federal habeas petition, the District Court ordered the State to submit a response. Ten months passed before the State, prompted by the court's threat summarily to grant the petition, see id., at 36, finally filed an answer. The State denied Vincent's material allegations and, in the alternative, asserted that "[a]ssuming the facts to be as alleged by the defendant he knew exactly what he was doing in an attempt to get the medication that he desired" and thereby manifested his competence. Id., at 44-45, 57. 9 Without holding an evidentiary hearing or otherwise inquiring into the merits of Vincent's allegations beyond reviewing the trial record, the District Court summarily dismissed the petition. Id., at 64-65. The court reasoned that "[t]he alleged lack of Thorazine, the alleged self mutilation, and the alleged trip to the hospital were occurances [sic] that were never brought to the trial Judge's attention and are not reflected in the transcript record"; that the medical testimony concerning Vincent's likely relapse in the absence of his medication pertained "to the time of the offense and not at the time of the trial"; and that Vincent's counsel had not raised the issue at trial or on direct review. Ibid. "In short, there is nothing in the record, beyond the defendant's assertion, of any lack of medication or the adverse effects from the lack therefrom." Id., at 64. The Court of Appeals for the Fifth Circuit affirmed in a brief unpublished order, reasoning that Vincent's "proof" did not "reach the level required" to secure habeas relief. Id., at 86. II 10 There can be no doubt that, if Vincent was in fact deprived of his Thorazine during trial and this deprivation rendered him incompetent to stand trial, he is entitled to have his conviction vacated. "[T]he conviction of an accused person while he is legally incompetent violates due process," Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966), and a petitioner is not barred from raising this issue by his failure to have challenged his competence at trial, id., at 384, 86 S.Ct., at 841.1 See also Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956). Yet the Court today refuses to disturb the lower courts' summary dismissal of Vincent's petition for failure of proof even though Vincent has never been accorded an opportunity to adduce evidence in support of his allegations. This result is squarely at odds with our precedents, with 28 U.S.C. § 2254, and with the Rules Governing Section 2254 Cases in the United States District Courts. 11 Where a habeas petition sets forth "specific and detailed factual assertions" that, if true, would entitle the petitioner to relief, the court must ensure the full development of the relevant facts. Machibroda v. United States, 368 U.S. 487, 496, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962); see also Harris v. Nelson, 394 U.S., at 300, 89 S.Ct., at 1091. "Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding." Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963). See also 28 U.S.C. § 2254(d). This duty requires "careful consideration and plenary processing of [habeas] claims including full opportunity for presentation of the relevant facts." Harris v. Nelson, supra, 394 U.S., at 298, 89 S.Ct., at 1090. Particular care is of course required where the habeas petitioner, as here, appears pro se or through the help of a fellow prisoner rather than with the assistance of an attorney. 12 Although a well-pleaded habeas petition frequently will require an evidentiary hearing, we have long recognized that federal courts may employ intermediate factfinding procedures in determining whether a full hearing is necessary. See, e.g., Machibroda v. United States, supra, 368 U.S., at 495, 82 S.Ct., at 514. Thus the Habeas Corpus Rules provide that the court may order limited discovery, 28 U.S.C. § 2254 Rule 6; "direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition," Rule 7(a);2 or arrange for informal conferences to inquire further into the merits of the petition, Advisory Committee's Note to Habeas Corpus Rule 8, 28 U.S.C., p. 356. See also 28 U.S.C. §§ 2246, 2247. Similarly, the court may direct the petitioner, on pain of dismissal, to specify the witnesses and evidence he relies upon. See, e.g., Smith v. Balkcom, 660 F.2d 573, 575, n. 2, 585, n. 33 (CA5 1981), modified, 671 F.2d 858, mandate recalled, 677 F.2d 20, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982). Although the particular procedures must necessarily vary with the circumstances of each case, the underlying concern is consistent: "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry." Harris v. Nelson, supra, 394 U.S., at 300, 89 S.Ct., at 1091. 13 Vincent's claims have never even been addressed through a state evidentiary hearing, and the duty of the District Court to give full and fair consideration to them was therefore particularly clear. See, e.g., Townsend v. Sain, supra, 372 U.S., at 313-314, 83 S.Ct., at 757. None of the justifications proffered by the court or the State can excuse the court's summary dismissal of Vincent's petition. The court asserted, for example, that there is nothing in the transcript record suggesting that Vincent had acted irrationally or had otherwise been incompetent during trial. 1 Record 65. However, we have consistently rejected the notion that the absence of such evidence in the transcript can alone obviate the need for an evidentiary hearing on the issue of the petitioner's mental capacity at trial. See, e.g., Drope v. Missouri, supra, 420 U.S., at 179, 95 S.Ct., at 907; Pate v. Robinson, supra, 383 U.S., at 386, 86 S.Ct., at 842 ("While [petitioner's] demeanor at trial might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue"). Similarly, the court emphasized that Vincent's attorneys had failed to raise the issue of his possible incompetence at trial. 1 Record 64. Again, however, while this failure might well be evidence indicating that Vincent was not incompetent, it could just as well reflect his attorneys' unfamiliarity with the gravity of the situation or the ineffectiveness of their assistance; the ultimate truth cannot be determined in the absence of further inquiry. 14 The heart of the court's summary rejection of Vincent's petition appears to be that there is "nothing in the trial transcript" proving that Vincent was without his Thorazine during trial, mutilated himself in an attempt to obtain Thorazine, or would have reverted to his former incompetence if in fact he really were deprived of Thorazine. Ibid. Yet the alleged incidents occurred before the trial actually began, and the absence of supporting evidence in the transcript therefore obviously does not disprove Vincent's claim. Indeed, one of the fundamental purposes of federal habeas factfinding is to determine the truth of "purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light." Machibroda v. United States, supra, 368 U.S., at 494-495, 82 S.Ct., at 513-514. See also Hawk v. Olson, 326 U.S. 271, 274, 66 S.Ct. 116, 118, 90 L.Ed. 61 (1945). In the proper exercise of its responsibilities under the Habeas Corpus Rules, the District Court easily could have sought independent verification of Vincent's allegations from prison and hospital records, and from inquiries directed to Vincent's former attorneys, prison officials, and Vincent's family.3 Moreover, if the court had doubts about the effect of Thorazine deprivation on Vincent's capacity to stand trial, it should have directed Vincent's doctors to address the issue.4 These procedures might well have demonstrated that Vincent's petition was without merit. If such discovery revealed substance in Vincent's allegations, however, then an evidentiary hearing would be essential to determine whether his conviction was unconstitutionally procured. 15 The District Court emphasized that, under pertinent Fifth Circuit precedent, a habeas petitioner alleging that he was incompetent to stand trial must demonstrate facts that " 'positively, unequivocally, and clearly generate the real, substantial, and legitimate doubt' " as to his mental capacity to assist in his defense. 1 Record 65, quoting Bruce v. Estelle, 483 F.2d 1031, 1043 (CA5 1973). Although this standard may be perfectly appropriate, § 2254 and its attendant Rules forbid the invocation of the standard before a petitioner has been given the opportunity to present his supporting evidence.5 Where, as here, there is undisputed evidence that a habeas petitioner suffered from longstanding and severe mental illness, had previously been found unfit to stand trial as a result of his disorders, and would "almost [as] a sure thing" suffer a relapse if deprived of his medication, 1 Record 64, a court may not dismiss his claim that he was so deprived without inquiring into the merits or warning him that his petition would be dismissed if further substantiating evidence was not presented.6 "The Government's contention that his allegations are improbable and unbelievable cannot serve to deny him an opportunity to support them by evidence. On this record it is his right to be heard." Walker v. Johnston, 312 U.S. 275, 287, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941). 16 I dissent. 17 Justice POWELL took no part in the consideration or decision of this petition. 1 "[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right" to stand trial only while competent. 383 U.S., at 384, 86 S.Ct., at 841. 2 "The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as a part of the record." Rule 7(b). 3 As summarized in Vincent's petition for certiorari, "[t]he facts alleged by Vincent that would be corroborated by outside sources include: "1. Thorazine not being sent with Vincent from Angola. Verification: Prison Records. "2. Vincent cut his leg to get to hospital to request thorazine. Verification: Leesville General Hospital records; Police Jury payment records; William E. Tilley, Chris Smith, III, Della Vincent, Brenda Carlin. "3. Vincent made requests of jail officials, his attorneys and family for thorazine. Verification: Vernon Parish police officers, William E. Tilley, Chris Smith, III., Della Vincent, Brenda Carlin. . . ." Pet. for Cert. 7. 4 The District Court acknowledged that prison psychiatrists had testified at Vincent's sanity hearing that it was "almost a sure thing" that Vincent would revert to episodes of psychosis if deprived of Thorazine. 1 Record 64. Incredibly, the court dismissed the relevance of this testimony by observing that the psychiatrists' discussion related to Vincent's condition at the time of the offense "and not at the time of the trial." Ibid. We have long recognized the probity of prior medical opinion on issues of trial competence, see, e.g., Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975), and the psychiatrists' predictions in this case made further inquiries imperative. 5 Bruce v. Estelle, relied on by the District Court below, itself illustrates this principle. After finding that Bruce had demonstrated "a history of mental illness" and "substantial evidence of mental incompetence at or near the time of trial," the Fifth Circuit concluded that an evidentiary hearing was required to resolve Bruce's claim of incompetence at trial. 483 F.2d, at 1043. "We would thus be remiss in our duty if we turned a deaf ear to petitioner's contentions since the record in this case evidences proceedings which did not adequately permit him to fairly present his serious allegations." Ibid. 6 The District Court never notified Vincent that his petition was subject to dismissal for want of sufficient evidence. Yet the Habeas Corpus Rules require such fair warning. Rule 11 commands the federal courts to apply the Federal Rules of Civil Procedure "to the extent that they are not inconsistent with these rules." Federal Rule of Civil Procedure 12(c) in turn provides that, if the court considers entering judgment for reasons beyond the bare sufficiency of the pleadings, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion." See generally Stephens v. Kemp, 469 U.S. 1043, 1057, 105 S.Ct. 530, 540, 83 L.Ed.2d 417 (1984) (BRENNAN, J., dissenting).

324 F.3d 1088 Roderick Courtney MANN, Plaintiff-Appellant,v.AMERICAN AIRLINES, Defendant-Appellee. No. 01-35803. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 5, 2003. Filed April 1, 2003. Douglas R. Cloud, Tacoma, WA, for appellant Roderick C. Mann. Kenneth R. O'Brien and Brandon Blevans, Littler Mendelson, Sacramento, CA, for appellee American Airlines, Inc. Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-00-05641-FDB. Before: REINHARDT, W. FLETCHER, and GOULD, Circuit Judges. GOULD, Circuit Judge. 1 Plaintiff-Appellant Roderick C. Mann filed a civil action within the governing statute of limitations but then did not serve process within 120 days of filing, as required (absent time extension) by Fed. R.Civ.P. 4(m). Mann then moved for an extension of time to serve Defendant-Appellee American Airlines, was granted additional time by the district court, and effected service within the judicially extended time. We consider (1) whether the failure to serve process within the initial 120-day period causes the statute of limitations to run again and (2) whether the district court may extend the time to serve process, under Rule 4(m), after the 120 days have expired when the statute of limitations would otherwise bar the refiling of the suit if the district court had declined extension of time and had dismissed the suit. 2 * Mann received a "right-to-sue" letter from the Equal Employment Opportunity Commission (EEOC) on August 2, 2000, and filed a pro se complaint in the United States District Court for the Western District of Washington eighty-nine days later on October 30, 2000. His complaint alleged a violation of the Americans with Disabilities Act, 42 U.S.C. § 12101. The original filing of this complaint was within the 90-day statute of limitations period set forth in 42 U.S.C. § 2000e-5(f)(1). 3 Because Mann did not serve the complaint on Defendant Appellee American Airlines within the 120-day period required by Fed.R.Civ.P. 4(m), the district court on March 27, 2001, issued an "Order to Show Cause Why Case Should Not Be Dismissed." Mann retained counsel, filed a Response to the Order to Show Cause through counsel, and moved for extension of time to serve the complaint. By minute order dated May 8, 2001, the district court granted the motion for extension, giving Mann until June 8, 2001, to complete service. 4 On May 30, 2001, Mann filed an amended complaint and the district court issued a summons. On June 4, 2001, Mann served on Defendant American Airlines the original complaint, the amended complaint, the original summons, and the subsequent summons. 5 American Airlines later moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(5) and (b)(6), alleging inadequate and untimely service of process and lack of personal jurisdiction. The district court granted the motion and dismissed the case with prejudice, apparently believing that compliance with the statute of limitations as provided by 42 U.S.C. § 2000e-5(f)(1) is linked to service of process within the 120-day period set out in Rule 4(m): 6 In this case, plaintiff's original complaint was timely filed, on the 89th day of the 90 day period. Filing a complaint gives a plaintiff 120 days to complete service of process according to Fed.R.Civ.P. 4(m). In this case plaintiff failed to timely serve and ex parte moved the court for an extension of time to complete service, which the court granted. While the court has discretion with regards to service of process, the court does not have the power to alter the 90 day statute of limitations. Wilson v. Grumman Ohio Corp., 815 F.2d 26, 27 (6th Cir.1987). Plaintiff's failure to file suit against American [Airlines] within the 90 day period mandated by the ADA requires the court to dismiss. 7 (Emphasis added.) Mann appeals. II 8 The correctness of the district court's dismissal on statute of limitations grounds is a question of law reviewed de novo. See Underwood Cotton Co., Inc. v. Hyundai Merch. Marine (Am.), Inc., 288 F.3d 405, 407 (9th Cir.2002). The interpretation of a Federal Rule of Civil Procedure is also a question of law reviewed de novo. See United States v. Foster, 227 F.3d 1096, 1099 (9th Cir.2000). III 9 This appeal requires resolution of two issues. First, we address whether Mann's failure to serve process within the initial 120-day period prescribed by Fed. R.Civ.P. 4(m) caused the statute of limitations to start to run again. We conclude that it did not. Once a complaint is filed, the statute of limitations is tolled unless and until the district court dismisses the action. See 4 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1053 (3d ed. 2002).1 10 Second, we address whether the district court had the discretion to extend the time to serve process even after the 120-day period had expired. We conclude that it did. Fed.R.Civ.P. 4(m) provides: 11 If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.2 12 On its face, Rule 4(m) does not tie the hands of the district court after the 120-day period has expired. Rather, Rule 4(m) explicitly permits a district court to grant an extension of time to serve the complaint after that 120-day period. Cf. Henderson v. United States, 517 U.S. 654, 661, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (concluding that "the 120-day provision operates not as an outer limit subject to reduction, but as an irreducible allowance"). 13 The district court's discretion is not diminished when the statute of limitations would bar re-filing of the suit if the district court decided to dismiss the case instead of grant an extension. To the contrary, the advisory committee notes explicitly contemplate that a district court might use its discretion to grant an extension in that very situation: "Relief may be justified, for example, if the applicable statute of limitations would bar the re-filed action." Fed.R.Civ.P. 4, Advisory Committee Note to 1993 Amendments, Subdivision (m). See also De Tie v. Orange Cty., 152 F.3d 1109, 1111 n. 5 (9th Cir.1998) (recognizing that an extension may be warranted if the statute of limitations has run). 14 Here, even though the district court properly used its discretion to extend the time for Mann to serve process, the district court later dismissed the action after concluding the statute of limitations had not been satisfied. As there was no other apparent basis, we must assume that the district court believed that the statute of limitations began to run upon Mann's failure to serve process within the 120-day period.3 But the failure to serve process within Rule 4(m)'s 120-day period does not affect the tolling of the statute of limitations unless the failure to serve process causes the district court to dismiss the action. Cf. Henderson, 517 U.S. at 656, 116 S.Ct. 1638 (holding that once a federal suit is commenced in compliance with the governing statute of limitations, "the manner and timing of serving process are generally nonjurisdictional matters of `procedure'"); Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1315-16 (11th Cir.1990) (holding that service of process requirements are not bound up with the statute of limitations under 42 U.S.C. § 2000e-5(f)(1)). The district court did not dismiss Mann's action but rather extended the 120 day service of process period, a decision perfectly within its discretion.4 15 Having concluded that the district court's dismissal of this case was error, we reverse and remand for further proceedings. 16 REVERSED and REMANDED. Notes: 1 Neither party disputes that Mann filed his complaint within the 90-day statute of limitations. And, neither party disputes that the statute of limitations initially is tolled upon filing of a complaintSee Sain v. City of Bend, 309 F.3d 1134, 1138 (9th Cir.2002). 2 Rule 4(m) replaced former Rule 4(j) in the 1993 amendments. The current rule requires a district court to grant an extension of time if good cause is shown and permits the district court to grant such an extension even absent good causeHenderson v. United States, 517 U.S. 654, 662, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996). This differs from former Rule 4(j), which did not permit extensions absent good cause. Id. at 661-62, 116 S.Ct. 1638. 3 The district court's reliance onWilson v. Grumman Ohio Corp., 815 F.2d 26 (6th Cir. 1987), is misplaced in part because that case concerned the re filing of a complaint after it had already been dismissed by the district court for failure to prosecute. 4 We reject Defendant's claims that the grant of a 30-day extension was prejudicial